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Wednesday, August 31, 2016

Ind. Courts - "Westfield residents sued after speaking at meeting"

Chris Sikich reports this afternoon in the Indianapolis Star about remonstrators being sued in Hamilton Circuit Court. From the story:

[Tracy] Pielemeier [was being sued by Houston-based Crown Castle, a cell phone company; she was] among several residents who had spoken in October against the company's petition to the local Board of Zoning Appeals to build a cell phone tower near 166th Street and Towne Road. The board denied the petition after hearing public testimony that it would look intrusive.

The company sued the board and the five remonstrators in Hamilton Circuit Court to reverse the decision.

"We were all just completely stunned," Pielemeier said, adding she felt Crown Castle was trying to intimidate them for speaking out.

The judge ultimately told the board to reconsider the decision and did not directly consider whether or not the remonstrators should have been named in the suit. But the remonstrators' lawyer, former Fishers Board of Zoning Appeals member Jeff Heinzmann, worries that including remonstrators in such lawsuits could make citizens hesitant to speak up at government meetings.

"The biggest concern I would have would be that if remonstrators start as a matter of routine getting sued by the petitioner who failed to get something approved, it would have a chilling effect on those who want to stand up and speak out," he said. * * *

Heinzmann himself had never heard of remonstratrators being sued in such a case and could find no such examples in subsequent searches.

ILB: Indiana has an anti-SLAPP statute to protect citizens in just this kind of situation. As the Indiana Court of Appeals wrote in 2003:
SLAPP is an acronym for “strategic lawsuit against public participation.” Ketchum v. Moses, 17 P.3d 735, 737 (Cal. 2001), reh’g denied. The “anti-SLAPP” statutes, of which Indiana’s is typical, are intended to reduce the number of lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The statute protects, inter alia, direct petitioning of the government and petition-related statements and writings, whether or not the statement is made in connection with a public issue. Id. The special motion to strike provided for by the Indiana statute -- the so-called “anti-SLAPP” motion -- is subject to statutory fee shifting as follows: “A prevailing defendant on a motion to dismiss made under this chapter is entitled to recover reasonable attorney’s fees and costs.” Ind. Code § 34-7-7-7. The statute provides that such a motion to dismiss is to be handled by the trial court as a summary judgment motion. Id. § 34-7-7-9.
IC 34-7-7, which was enacted in 1998 and hasn't been amended since that time, is headed "Chapter 7. Defense in Civil Actions Against Persons Who Act in Furtherance of the Person's Right of Petition or Free Speech Under the Constitution of the United States or the Constitution of the State of Indiana in Connection With a Public Issue."

See also this Jan. 23, 2012 ILB post, quoting an Indianapolis Star editorial opposing a bill, "under which agricultural operations, such as large confined livestock complexes, would be guaranteed payment of their legal fees if found to be victims of nuisance lawsuits." The editorial concludes [ILB emphasis]:

The costs, benefits and regulation of this large and controversial industry are subject to continual debate. Closing the courthouse door to opponents, even indirectly, has no place in that political process and no warrant under our tradition of free speech.

State government said as much more than a decade ago when it banned so-called SLAPP (Strategic Lawsuit Against Public Participation) legal actions that have been taken by businesses such as landfills and power plants against remonstrators. Pre-empting these protests by onerous lawsuits has been found by Indiana and most other states to be unconstitutional and plain unfair. HB 1091 carries the same foul aroma.

Posted by Marcia Oddi on Wednesday, August 31, 2016
Posted to Indiana Courts

Ind. Decisions - Another ruling in the Bell copyright infringement cases

A quick search of the ILB reveals three 7th Circuit opinions, all of which appear to have had their basis in Mr. Bell's 2011 claims for copyright infringement of a photograph of the Indianapolis skyline taken during by Bell.

A decision this week by federal Judge Pratt (Richard Bell v. Cameron Taylor) involves a request for costs and fees by a "prevailing party." From the opinion we learn on p. 12, inter alia, that:

... the American Intellectual Property Law Association’s Economic Survey, and other fee awards in similar copyright cases involving Bell are helpful for the Court’s determination that an attorney rate of $200.00 and $250.00 per hour are each reasonable in this Indianapolis copyright infringement case ...

Posted by Marcia Oddi on Wednesday, August 31, 2016
Posted to Ind Fed D.Ct. Decisions

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

For publication opinions today (4):

In George P. Broadbent, and Plainfield Village, LP v. Fifth Third Bank, an 18-page opinion, Judge Kirsch writes:

George P. Broadbent (“Broadbent” or “Guarantor”) appeals the trial court’s entry of summary judgment in favor of Fifth Third Bank (“the Bank” or “Lender”). He raises two issues on appeal, which we restate as: I. Whether the trial court erred when it determined that the two payment guaranties that Broadbent signed were not ambiguous; and II. Whether the trial court properly calculated Broadbent’s liability under the guaranties. We affirm.
In Tina Herron v. City of Indianapolis , an 8-page opinion, Judge Pyle writes:
Tina Herron (“Herron”) appeals the trial court’s sanction of a $1,000 fine for her indirect contempt of court in a civil proceeding. She argues on appeal that the trial court abused its discretion in imposing the $1,000 fine because the fine was punitive rather than compensatory or coercive in nature, which is impermissible in a civil contempt proceeding. Because we agree that the trial court’s sanction was impermissibly punitive, we reverse and remand with instructions for the trial court to vacate Herron’s sanction. We reverse and remand with instructions. * * *

Because Herron’s fine was not compensatory or coercive in nature, we conclude that it was solely punitive and was therefore impermissible in a civil proceeding. See id. (“Any type of remedy in a civil contempt proceeding must be coercive or remedial in nature.”). As a result, we reverse the trial court’s denial of Herron’s motion to correct error and remand with instructions for the court to vacate its sanction for Herron’s contempt finding.

In John Prater v. State of Indiana

Howard B. Gutenstein v. State of Indiana

NFP civil decisions today (4):

Pinnacle Properties Development Group, LLC v. Christina Jackson and James Jackson (mem. dec.)

In Re: The Termination of the Parent-Child Relationship of J.B., Jr. (Minor Child); M.D. (Mother) v. Ind. Dept. of Child Services (mem. dec.)

Kelly J. Hudson f/k/a Kelly J. Freidline v. Ted Freidline (mem. dec.)

In re the Marriage of: David A. Anzelmo v. Elizabeth M. Anzelmo (mem. dec.)

NFP criminal decisions today (13):

Shane P. Cooper v. State of Indiana (mem. dec.)

Donte D. Lane v. State of Indiana (mem. dec.)

Erique Raggs v. State of Indiana (mem. dec.)

Jaquecke Hughes v. State of Indiana (mem. dec.)

Beth Ann Bailey v. State of Indiana (mem. dec.)

Matthew Grayson v. State of Indiana (mem. dec.)

Paul R. Nichols v. State of Indiana (mem. dec.)

Jackie Butler v. State of Indiana (mem. dec.)

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

Martin Pineda Tovar a/k/a Martin Estrada v. State of Indiana (mem. dec.)

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

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

Hilton Hazelwood v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, August 31, 2016
Posted to Ind. App.Ct. Decisions

Environment - East Chicago lead contamination crisis now national story

The ILB has had three posts so far on, to quote the NWI Times, the "alarming lead levels in the soil of a low-income East Chicago neighborhood. Today Abby Goodnough of the NY Times has a long-story that appears on the front-page of this morning's issue, headed "1,100 in Indiana, Their Soil Toxic, Are Uprooted.." A few quotes from the lengthy story:

Ms. King and other residents of the West Calumet Housing Complex here learned recently that much of the soil outside their homes contained staggering levels of lead, one of the worst threats to children’s health. * * *

The extent of the contamination came as a shock to residents of the complex, even though it is just north of a huge former U.S.S. Lead smelting plant and on top of a smaller former smelting operation, in an area that was designated a Superfund site in 2009. Now, in a situation that many fearful residents are comparing to the water crisis in Flint, Mich., they are asking why neither the state nor the Environmental Protection Agency told them just how toxic their soil was much sooner, and a timeline is emerging that suggests a painfully slow government process of confronting the problem. * * *

But the most pressing question for residents is why they were not informed until last month that even the top six inches of soil in their yards had up to 30 times more lead than the level considered safe for children to play in, and that it also had hazardous levels of arsenic. Farther down, the contamination is much worse. * * *

The E.P.A. began suing the companies responsible for the contamination in 2009, and by 2012 had a cleanup plan that involved removing all lead- and arsenic-contaminated soil from the housing complex.

Extensive testing to figure out which soil needed to be removed did not begin until November 2014, Mr. Kaplan said. And the E.P.A. did not receive the final results showing “exactly where” the contamination was, he said, until this May. The delay, he said, was due to problems with the contractor the agency hired to tabulate the data and concerns about the data’s quality.

“Our first priority after that was making sure every resident knew not to dig, not to be in contact with the soil,” Mr. Kaplan said. Since early June, he said, the E.P.A. has been covering bare soil in the complex with mulch; going door to door with fliers; and posting signs that warn, “Do not play in the dirt or around the mulch.” The E.P.A. has also tested for lead in homes and offered to deep-clean them as a temporary measure.

Mr. Kaplan said the E.P.A. had in fact warned West Calumet residents for at least a decade to avoid the soil, with public notices and community meetings. Mr. Kaplan said the hot spots discovered during preliminary testing had not created a sense of urgency partly because a 2011 federal assessment of the Superfund site concluded that “breathing the air, drinking tap water or playing in soil” in the area “is not expected to harm people’s health.”

Posted by Marcia Oddi on Wednesday, August 31, 2016
Posted to Environment | Indiana Government

Ind. Gov't. - Still more on: Civil rights issues related to gender identity and sexual orientation

More stories today on yesterday's interim legislative committee meeting on gender identity and sexual orientation.

"State stays split on LGBT rights," reports Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – Hoosiers from around the state and on opposite sides of the issue pressed lawmakers Tuesday to enact or block civil protections for gay, lesbian, bisexual and transgender Hoosiers.

Much of the testimony was similar to that given in hearings during the 2016 legislative session before the Senate killed a bill that would have banned discrimination on the basis of sexual orientation and gender identity statewide.

And it doesn’t appear there’s going to be any movement on the issue in 2017, with Rep. Greg Steuerwald, chairman of the Interim Study Committee on Courts and the Judiciary, saying the issues will likely be decided by the courts.

He was referring to the topic of bathroom use by students, which has become a central topic since the Obama administration advised all schools in the country to allow transgender students to use the bathroom coinciding with the gender they identify themselves with. Several lawsuits are pending.

What got less play Tuesday was employment, housing and public accommodations protections for LGBT folks.

State law doesn’t prohibit discrimination on basis of sexual orientation and gender identity as it does for race, gender and ethnicity. That means someone can refuse to serve a gay couple in a restaurant; fire a transgender person for transitioning; and refuse to rent an apartment to married lesbians.

These Hoosiers are protected only if a local human rights ordinance has been passed.

The Indiana business community lined up in support of protections – saying prospective employees are questioning how inclusive and welcoming Indiana is.

"Transgender bathroom issue ties up LGBT rights debate" was the heading to Stephanie Wang's Indianapolis Star story last evening.

See also this ILB post from yesterday.

Posted by Marcia Oddi on Wednesday, August 31, 2016
Posted to Indiana Government

Ind. Decisions - 7th Circuit decided a second Indiana case yesterday, re self-defense in prison

In USA v. Joshua Waldman (SD Ind., Magnus-Stinson), a 10-page opinion, Judge Williams writes:

Inmate Joshua Waldman was convicted of forcibly assaulting a correctional officer after head‐ butting him during an argument about a pat‐down search. He advanced a self‐defense argument at trial, but was unsuccessful. On appeal, he argues that the district court erred in holding that there needed to be an imminent threat of death or serious bodily harm before he could justifiably use force in self‐ defense. We agree. Requiring that an inmate fear serious bod‐ ily harm or death before using force to protect himself is in‐ consistent with both the Eighth Amendment and common law principles justifying the use of self‐defense. But we find no clear error in the district court’s finding that Waldman had a legal alternative to force in complying with the pat‐down. So we affirm Waldman’s conviction because he failed to prove at least one of the required components of his defense. * * *

[A. Self‐Defense under 18 U.S.C. § 111 ]

Under the federal definition of “serious bodily harm,” without a substantial risk of death, ex‐ treme physical pain, protracted and obvious disfigurement, or protracted loss of the function of a bodily member, organ or mental faculty, inmates would risk further incarceration if they tried to resist such abuse. See 18 U.S.C. § 1365 (h)(3) (de‐ fining “serious bodily harm”). In the midst of enduring abuse by officials, prisoners should not be expected to calculate whether the requisite disfigurement or loss of bodily function will come to pass before acting to protect themselves. Such a result is not consistent with the Eighth Amendment, and would “give prison officials free reign to maliciously and sa‐ distically inflict psychological torture on prisoners, so long as they take care not to inflict any physical injury in the process.” Calhoun, 319 F.3d at 940. Under common law principles, re‐ quiring the threat of serious bodily injury or death certainly might be appropriate for use of lethal force in self‐defense, see, e.g., United States v. White Feather, 768 F.3d 735, 740 (7th Cir. 2013). But in a case where a prisoner is simply acting to stop abuse completely untethered to official discipline, which can only be interpreted as sadistic, malicious, and intended to cause harm, she is entitled to act in self‐defense. And while Congress clearly intended to protect correctional officers from harm in passing 28 U.S.C. § 111, that purpose must be harmo‐ nized with Eighth Amendment protections, not supersede them.

B. No Error in Finding Waldman Had Reasonable Legal Alternative to Using Force

In addition to showing that the force threatened against them violated the Eighth Amendment, inmate‐defendants have other hurdles to mount. They must prove that the un‐ lawful use of force against them was imminent, and that they had no reasonable legal alternatives to using force in self‐de‐ fense. United States v. Haynes, 143 F.3d 1089, 1092 (7th Cir. 1998). The district court correctly evaluated whether Wald‐ man had reasonable legal alternatives to striking Buescher, which was a required element of his defense. While we are very dubious that Buescher used or threatened any force which violated the Eighth Amendment, we can affirm Wald‐ man’s conviction solely based on the district court’s finding that he did not avail himself of legal alternatives to assaulting Buescher.

Waldman could have simply submitted to Buescher’s search—which no one is arguing was itself a violation of Waldman’s constitutional rights—instead of escalating the sit‐ uation into a physical fight. * * *

For the foregoing reasons, we AFFIRM Waldman’s convic‐ tion.

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

Tuesday, August 30, 2016

Ind. Decisions - 7th Circuit decides one Indiana case today, re a child care ministry

In Rebirth Christian Academy Daycare v. Melanie Brizzi (SD Ind., Barker), a 17-page opinion, Judge Rovner writes:

Rebirth Christian Academy Daycare, an Indiana non‐profit corporation, ran a child care ministry—a “child care operated by a church or religious ministry that is a religious organization exempt from federal income taxation.” IND. CODE § 12‐7‐2‐28.8. A state agency re voked Rebirth’s registration after an inspector concluded that the organization had violated several statutory and regulatory provisions governing registered child care minis‐ tries. Rebirth sued state officials for damages and injunctive relief under 42 U.S.C. § 1983, claiming that they had violated the due‐process clause of the Fourteenth Amendment by revoking its registration without providing it with an opportunity to be heard. The district court dismissed Rebirth’s in dividual‐capacity claims, concluding that qualified immunity protected the defendants from liability for civil damages because they had not violated clearly established law. After the parties developed an evidentiary record on the official‐capacity claims, Rebirth ultimately prevailed on its claims for injunctive relief. It now challenges the district court’s dismissal of its claims for damages against the defendants sued in their individual capacities. We conclude that, based on the allegations in the complaint, the defend‐ ants were not entitled to qualified immunity because they violated clearly established law: the complaint adequately alleges that they deprived Rebirth of a property interest without first providing an opportunity for some type of hearing. Accordingly, we reinstate Rebirth’s individual‐capacity claims and remand for further proceed ings. * * *

In sum, we do not decide the type of pre‐deprivation hearing that Rebirth was entitled to or that Rebirth shall now recover damages. We conclude only that Rebirth’s complaint alleges that the appellees personally violated clearly estab‐lished law by depriving Rebirth of a property interest (its registration) without first providing Rebirth with any opportunity to be heard. Rebirth will, of course, need more than allegations to prevail on these claims; it will need evidence proving that these defendants were personally involved in the constitutional violation. Given the procedural posture of this case, the district court should, if necessary, provide Rebirth with an opportunity for additional discovery so that it may obtain such evidence.

Accordingly, the judgment of the district court is VACATED only to the extent that it dismisses Rebirth’s individual‐capacity claims against Brizzi and Gargano, and the case is REMANDED to the district court for further pro ceedings consistent with this opinion.

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

Ind. Gov't. - More on: Civil rights issues related to gender identity and sexual orientation

Updating this ILB post from yesterday, Zach Osowski of the Evansville Courier & Press reported at noon today in a story headed: "Sides still far apart in LGBT debate." Some quotes:

INDIANAPOLIS -- With proponents on both sides of Indiana LGBT civil rights debate still far apart, lawmakers might leave the issue up to the courts to decide.

Indiana's Interim Courts and Judiciary Committee heard testimony regarding civil rights for Indiana's LGBT community for more than two hours on Tuesday. After hearing passionate testimony on both sides of the issue, Committee Chair Rep. Greg Stueurwald, R-Avon, said lawmakers needed to be cognizant of how the court system is dealing with these issues.

"I think each and every one one of these issues is now making its way through federal courts," Stueurwald said. "We need to be aware of that and see how those cases make progress. No matter what we do, it's probably going to be preempted."

Steuerwald said several committee members have expressed to him a desire to wait and see what the courts do before introducing legislation.

Committee member Rep. Tom Washburne, R-Evansville, said legislators are still unsure how best to mesh civil rights with religious freedom in Indiana. Washburne quoted the state constitution's mandate that the state not pass any law that conflicts with the free exercise of religious opinions or the rights of conscience in Indiana. He said unless both sides can agree on a compromise, legislation in 2017 seems unlikely.

"If you grant civil rights protections, you have to be careful about providing some religious exemptions," Washburne said. "And where they got stuck in the Senate was, what kind of religious exemptions do you grant? No one's found a great solution for that." * * *

The main reason the issue is being studied this summer is because of the mandate from the Obama Administration asking schools to allow students to use restrooms based on their gender identity. Those who spoke against civil rights Tuesday spent most of their time expressing concerns about the lack of privacy and safety the mandate brings. * * *

Sen. Travis Holdman, R-Markle, who authored the failed legislation earlier this year, said he was a little confused on the bathroom focus from LGBT right opponents.

"I'm not sure that that is an issue because transgender folks are using the bathroom of their choice currently," Holdman said. "I don't see that as an issue to be honest with you."

Because of the workload placed on the judiciary committee, this is the only scheduled meeting where LGBT rights will be discussed. The committee will decide later if legislation should be introduced.

Posted by Marcia Oddi on Tuesday, August 30, 2016
Posted to Indiana Government

Ind. Gov't. - More on: Does historic designation affect property values?

Updating this long ILB post from August 8th, Rebecca S. Green moves the story forward today with this report in the Fort Wayne Journal Gazette that begins:

Richard Herber owns a historic home, Fort Wayne’s only house designed by famed architect Frank Lloyd Wright.

And for months, he has battled the Fort Wayne City Council and the Fort Wayne Historic Preservation Commission to get the Usonian-style house’s designation as a Local Historic District removed.

Last week, he took the matter to federal court, filing a lawsuit, without the benefit of an attorney, against both the council and the commission. He is asking a federal judge to remove the restriction, grant him fees and costs, and award him damages he says he’s suffered because of the house’s historic status.

Posted by Marcia Oddi on Tuesday, August 30, 2016
Posted to Indiana Government

Environment - "Google cameras to capture autumn in Brown County"

See the complete $$ Bloomington Herald-Times story by Laura Lane here, or the abridged story via Indiana Economic Digest. The intro:

Before long, the world will be able to view Brown County’s autumn beauty from winding and sometimes obscure trails as volunteers strap a 50-pound, 15-lens Google Trekker backpack camera onto their backs and head out into the woods to record the sights.

Posted by Marcia Oddi on Tuesday, August 30, 2016
Posted to Environment

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

For publication opinions today (0):

NFP civil decisions today (2):

In re the Paternity of: L.S., Chen Su v. James Lowe (mem. dec.)

In the Term. of the Parent-Child Relationship of A.S. & L.S. (Minor Children) and M.S. (Mother) & J.S. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (1):

Kayniece B. Davis v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, August 30, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Dictionary citations by the courts

In Michael Day v. State of Indiana (ILB summary here), decided yesterday by our Supreme Court, the Supreme Court referred to Black's Law Dictionary:

Here, “fighting” is ambiguous because it can reasonably cover either interpretation Day offers: narrowly covering only physical altercations or broadly covering both physical and verbal altercations. As evidence of that ambiguity, we note inconsistent definitions among judicial opinions and even among editions of Black’s Law Dictionary. * * *

Black’s Law no longer defines the term “fight” or any variation. See Black’s Law Dictionary (10th ed. 2014).

The ILB has had prior posts about courts' use of dictionary definitions, including this one from July 5, 2011 about use of dictionary citations by SCOTUS justices. It is interesting reading.

That 2011 post ended with a look at Indiana. IU-Indy Law prof Joel Schumm offered:

[A]dvocates and courts often just run for a dictionary that says what they want it to say and stop there. I think it's generally wrong to use Black's if the court is trying to give meaning to an undefined legislative term (most legislators are not lawyers) or address whether a term is unconstitutionally vague (fails to give notice to people of ordinary intelligence). The Indiana Supreme Court agreed in one of my all-time favorite cases, Richard Brown v. State.
From p. 4 of the opinion by Justice Dickson:
The statute does not provide a particular definition for any of these three terms. In our evaluation of the defendant's vagueness claim, which hinges upon how ordinary people understand statutory language, we prefer to consult standard dictionaries, not a specialized legal dictionary as cited by the State.

Posted by Marcia Oddi on Tuesday, August 30, 2016
Posted to Indiana Decisions

Ind. Courts - Amendments to trial rules effective September 1st

The amendments, filed yesterday by the Supreme Court, take effect September 1st. They impact trial records and the duties of the clerks of the courts.

Posted by Marcia Oddi on Tuesday, August 30, 2016
Posted to E-filing | Indiana Courts

Monday, August 29, 2016

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

In Charles Walker v. Kathy Griffin (SD Ind., Magnus-Stinson), an 11-page opinion, Judge Wood writes:

Charles Walker was convicted in an In- diana court of robbery, adjudicated a habitual offender pur- suant to Indiana Code § 35 -50- 2- 8, and sentenced to 40 years in prison . Twenty of those years were attributable to his ha- bitual- offender status. The version of the habitual- offender statute Indiana had in place at the time applied if a defendant had been convicted of two prior unrelated felonies , in a spe- cific sequence: the second felony had to have been committed after the commission of and sentencing for the first, and the present crime had to have been comm itted after the commis- sion and sentencing of the second earlier offense. At Walker’s trial, the state provided evidence of three prior felonies, but it failed to offer evidence of the date when one of the crimes was committed.

The only claim Walker presses before us is ineffective as- sistance of appellate counsel. He contends that his lawyer on direct appeal should have challenged the sufficiency of the evidence for the habitual- offender conviction , given the miss- ing date. Even a ssuming that counsel’s performance fell be- low the constitutional minimum, we conclude that Walker’s petition for a writ of habeas corpus was properly dismissed. The state appellate court’s conclusion that Walker’s Sixth Amendment right to counsel was not infringed meets the gen- erous standards that apply under 28 U.S.C. § 2254, and so we affirm.

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

Ind. Decisions - More on "Monarch Beverage owners can sell liquor, judge rules"

Supplementing this ILB post from earlier today, which includes a copy of Judge Welch's ruling [which I've now ORCed], Hayleigh Colombo reports now in the IBJ in a story headed "Emails show state staffers rooting against Monarch's liquor battle." Some quotes:

In her ruling, Judge Heather Welch called electronic communications between the governor's office, ATC and Monarch opponents "disturbing and inappropriate,” saying the “discussions challenge the integrity of the application process and raise questions about the [ATC’s] willingness to serve all citizens of Indiana equally, fairly, and without bias.”

Welch added: "Though political appointees, the Commission is supposed to be an independent agency that grants permits on the basis of merit without any consideration of the applicant's politics. The Commission must not have its judgment questioned by seeking advice on the issuance or denial of permits by having ex parte discussions with staffers of a government office or Remonstrators." [ILB emphasis]

The emails show aides to former Gov. Mitch Daniels and Gov. Mike Pence were regularly in touch with ATC decision-makers regarding various requests from Monarch over the years, sometimes cheering behind closed doors when the company failed. And Monarch’s competitors appeared to have frequent communication with the two entities, calling themselves “the good guys.”

In 2009, a Daniels aide even appeared to direct an ATC commissioner to deny one of Monarch’s requests. The company at the time was seeking permission from the ATC to allow Indiana Wholesale Wine & Liquor Co. to transfer its liquor permit to Monarch's Pendleton Pike warehouse and use its transportation services.

Jessica Norris, policy director for regulatory and administrative affairs under Daniels, wrote in a July 27, 2009, memo circulated in the governor’s office that Monarch was trying to “get into the business of selling and/or distributing spirits.”

“I’ve told Snow this is not something we want to allow, so he will be denying the request unless you have additional concerns,” Norris wrote in the memo. P. Thomas Snow was the chairman of the ATC at the time. * * *

Jim Purucker, who runs the Wine & Spirits Distributors of Indiana, emailed Norris in May 2012 asking to “get on your calendar to talk Monarch issues sometime soon.” The group opposes Monarch's entry into liquor distributing, saying it would have an unfair competitive advantage in the market.

“Absolutely,” Norris replied, and the two set a date to meet the following week.

In other emails, ATC staff came across as frustrated over its dealings with Monarch and Spirited, and annoyed at having to fulfill requests the companies made under the state's public records law that could be used to challenge commission decisions.

“Make it stop!!! Dear God, make it stop!!! Don’t they know that this is an informal hearing where the COMMISSION should be asking for information, not the other way around?” an ATC staffer, Allen Renfro, wrote in April 2014 to ATC Executive Secretary David Rothenberg.

Rothenberg emailed Adam Berry, regulatory policy director and special counsel under Pence, in June 2014 to express his frustration after Spirited sought a continuance of its hearing into whether the ATC would approve its liquor wholesaling permit—the matter that was at issue in the Spirited Court case—because Spirited had yet to receive public records it had requested it believed were relevant to the proceedings.

Rothenberg said Spirited seemed to be making requests for the purpose of “building up a case” against the commission, and said that wasn’t the commission’s job.

“Their requests are indeed [public records] requests, but let’s be honest about their intent—they want to find evidence which shows [the commission’s] conflicting past decisions,” Rothenberg wrote to Berry in June 2014.

Rothenberg wrote to another ATC staff member the next month that his “head was going to explode” after Spirited submitted a motion to disqualify Alex Huskey, then the chairman of the ATC, from hearing its case. Included was an affidavit of a former Indiana State Excise Police officer, who said it was her impression that Huskey “harbored animosity” against Monarch, its CEO Phil Terry and EF Transit.

Rothenberg said they "would have a laugh reading this.”

Monarch’s competitors also didn’t hesitate voicing their glee to ATC staff members at Monarch’s failings at entering the liquor industry.

In a 2012 email between Purucker, who runs Wine & Spirits Distributors of Indiana, and ATC Executive Secretary Davey Neal, Purucker said it was a “good day for the good guys” because Monarch “didn’t do so well.”

Neal responded simply: “You lose some, you lose some."

ALL THOSE QUOTES are in the Welch opinion; my KUDOS to Hayleigh Colombo!!!

Posted by Marcia Oddi on Monday, August 29, 2016
Posted to Ind. Adm. Bd. Decisions | Ind. Trial Ct. Decisions

Courts - Would this even be an issue in Indiana? Another attorney sits in for judge

I believe that in Indiana attorneys may sit on the bench as special or pro tem judges. Not so, apparently, in Illinois. I first saw this story in the WSJ Law Blog, where Josh Gershman wrote:

Cook County Circuit Judge Valarie English Turner has been suspended from the bench after she was accused of allowing a court clerk to preside over at least two cases. The clerk, Rhonda Crawford, is a lawyer but not a judge; she is a judicial candidate vying for an uncontested bench seat this fall. But she allegedly acted as one, even dressing the part.

“It is further alleged that Ms. Crawford’s adjudication of cases took place on the judge’s bench in a courtroom and while wearing a judicial robe provided by Judge Turner,” states a disciplinary order issued by the circuit court’s executive committee on Wednesday.

The order continues: “The Committee conducted a preliminary review of these allegations…and concluded that a possible threat of injury to the public’s confidence in the integrity and impartiality of the judiciary and to the orderly administration of justice may have occurred.”

The two cases Ms. Crawford heard in August weren’t what one would call landmark. Both involved minor traffic tickets: one for driving with no insurance and the other for driving on a median, according to a court spokesman. The cases will be reheard, presumably this time by an actual judge.

The Chicago Tribune is quoted in the WSJ article as reporting:
The incident shocked judicial ethics experts, who said it would be such an ethical lapse — and possibly a violation of the law for the impersonation of a judge — they were surprised any judge would allow it and any lawyer would actually take the bench. It also raised a host of issues, from questions about the validity of any judgment Crawford might have rendered to the cost and inconvenience of rehearing cases she handled.
From a Chicago Tribune story today by Steve Mills and Todd Lighty, headed "Criminal probe launched in case of lawyer who allegedly posed as judge":
The Cook County state's attorney's office said on Friday that it had begun a criminal investigation into an incident earlier this month in which a municipal court judge at the south suburban Markham courthouse allegedly allowed a law clerk to wear a robe and hear traffic cases. * * *

Daly would not say if the judge, Valarie Turner, or the law clerk, Rhonda Crawford, was the target of the investigation. But moving from a review to an investigation suggests prosecutors have determined there is enough evidence of wrongdoing to determine whether charges are warranted.

Crawford has been a law clerk/staff attorney in the office of Cook County Chief Judge Timothy Evans since 2011. In March, she defeated two opponents in the Democratic primary for the 1st Judicial Sub-circuit, which includes parts of the South Side and some of the south suburbs. She is unopposed in the November general election.

Evans temporarily removed Turner from the bench and assigned her to handle administrative tasks such as conducting weddings and reviewing requests for fee waivers in civil cases. He suspended Crawford without pay from her $57,000-a-year job. * * *

The incident occurred on Aug. 11, when officials say Crawford put on a robe and, with Turner standing nearby, presided over at least two traffic cases. Both involved South Side residents driving in Dolton; one was ticketed for driving with no proof of insurance, the other for driving on the median.

Documents show one case was continued, while the other was dismissed when the officer failed to appear in court.

Both cases will be reheard by a real judge.

Experts in legal and judicial ethics were left slack-jawed by the incident. They said that it likely violates several rules for lawyers and judges and might even have been illegal for Crawford to pretend to be a judge. The Judicial Inquiry Board, which oversees judges in the state, and the Attorney Registration and Disciplinary Commission, which licenses and disciplines lawyers, likely will investigate the incident as well.

Posted by Marcia Oddi on Monday, August 29, 2016
Posted to Courts in general

Ind. Courts - Allen Superior Court looking to hire 2 clerks to start next July 31

"Resumes accepted from 3L students - please include Transcript, Writing Sample, and References. Applications should be submitted no later than September 30, 2016." Pay is $1738.35 bi-weekly. More here.

Posted by Marcia Oddi on Monday, August 29, 2016
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today, re disorderly conduct statute

In Michael Day v. State of Indiana, a 7-page, 5-0 opinion, Chief Justice Rush writes:

As Michael Day’s marriage dissolved, the family home became increasingly tense, until one night Day came home, screamed in his wife’s face, and spat in her eye. Four 911 calls later, Day was arrested. He was subsequently convicted of disorderly conduct based on “fighting.” Here, he asks us to interpret the disorderly conduct statute’s “fighting” subsection to require both a public disturbance and a physical altercation, claiming the State failed to prove either element. Guided by well - established principles of statutory interpretation, we conclude that the “fighting” subsection does not contain a public disturbance element but does require a physi cal altercation. Still, Day’s intentional spitting provided sufficient evidence of a physical altercation. We thus affirm his disorderly conduct conviction. * * *

The Court of Appeal s affirmed in a split decision. Day v. State, 48 N.E.3d 921 (Ind. Ct. App. 2016). The majority held the “fighting” subsection required neither a public disturbance nor a physical altercation, and sufficient evidence supported the conviction. Id. at 924 – 27. Judge Baker dissented, contending that the disorderly conduct statute does not prohibit private, verbal altercations. Id. at 927 – 28 (Baker, J., dissenting). * * *

Given its plain language, we conclude that the disorderly conduct statute’s “fighting” subsection contains no public disturbance element. And even though we i nterpret the ambiguous word “fighting” narrowly to cover only physical altercations, Day’s spitting satisfied that element. We thus affirm Day’s conviction for B - misdemeanor disorderly conduct

Posted by Marcia Oddi on Monday, August 29, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (2):

In City of Lawrenceburg, Indiana, Mayor of Lawrenceburg in his official capacity, Common Council of the City of Lawrenceburg in their official capacities v. Franklin County, Indiana, et al. , a 5-page opinion, Judge Bradford writes:

In 2015, Appellees-Plaintiffs Franklin County and the Franklin County Board of Commissioners (collectively, “Franklin”) filed a complaint in Franklin Circuit Court alleging breach of contract by Appellants-Defendants the City of Lawrenceburg, the mayor of Lawrenceburg, and the common council of Lawrenceburg (collectively, “the City”). The City filed a motion, pursuant to Trial Rule 76(A), requesting a change of venue from Franklin County to Dearborn County. The trial court denied the City’s motion. On appeal, the City contends that the trial court erred in denying its motion for change of venue. We reverse the trial court’s ruling and remand with instructions. * * *

Regardless of whether Franklin County is a preferred venue, its status as such is trumped by Trial Rule 76(A), which states explicitly that a motion requesting a change of venue “shall be granted only upon a showing that the county where suit is pending is a party.” That is clearly the case here. Accordingly, the trial court was required to grant the City’s motion and erred in failing to do so. * * *

[The City also argues] that Dearborn County is the appropriate venue because the City is located in Dearborn County, making it a preferred venue. However, Rule 76(D) sets forth specific procedural steps for change of venue determinations and preferred venue is not a requirement. Accordingly, it is up to the parties on remand to determine a new venue in accordance with Rule 76(D).

In Terex-Telelect, Inc. v. Anthony Wade, a 13-page opinion, Judge Altice writes:
In a previous appeal in these proceedings, this court reversed a jury verdict in favor of Terex-Telelect, Inc. (Terex) based on an erroneous jury instruction. See Wade v. Terex-Telelect, Inc., 966 N.E.2d 186 (Ind. Ct. App. 2012), trans. denied. (Terex I). Specifically, the majority held that evidence of Terex’s compliance with American National Standards Institute Standard A92.2 (ANSI A92.2) in the design of the bucket at issue was irrelevant to the defect alleged by Wade, and thus, did not support the giving of a jury instruction regarding a rebuttable presumption that the bucket at issue was not defective. The case was remanded to the trial court.

In advance of the third trial, Wade filed a motion in limine seeking to exclude evidence of Terex’s compliance with ANSI A92.2 and the design specifications found in ANSI A92.2. The trial court granted Wade’s motion, finding that this court’s decision in Terex I established the law of the case with regard to relevancy and therefore required such exclusion. Terex moved to certify the matter for interlocutory appeal, which request the trial court granted. This court accepted jurisdiction over this interlocutory appeal on December 18, 2015. There are two issues presented for our review:

1. Under the law of the case doctrine, does this court’s prior opinion in Terex I require exclusion of evidence pertaining to ANSI A92.2 and Terex’s compliance therewith in a subsequent trial?
2. Is evidence relating to ANSI A92.2 and Terex’s compliance therewith relevant?

We affirm

NFP civil decisions today (0):

NFP criminal decisions today (2):

Tyler Matthew McAfee v. State of Indiana (mem. dec.)

Jackie Butler v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, August 29, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 26, 2016

Here is the Clerk's transfer list for the week ending Friday, August 26, 2016. It is one page (and 17 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, August 29, 2016
Posted to Indiana Transfer Lists

Ind. Gov't. - Civil rights issues related to gender identity and sexual orientation

The Interim Study Committee on Courts and the Judiciary meets tomorrow, August 30th, at 9:00, in Rm. 404 of the Statehouse. This is the interim committee's first meeting of this interim. One item is on the agenda, "Civil rights issues related to gender identity and sexual orientation." You will be able to watch it live. There is no indication that this will be a public hearing, that there will be speakers, etc. The Star story (below) says the committee will "hear testimony," but does not expand.

The Indianapolis Star has a long story on the LGBT rights debate and the upcoming meeting, reported by Stephanie Wang. A few quotes:

A special panel of lawmakers convenes Tuesday morning to study the issue and hear testimony, in order to submit recommendations for the 2017 legislative session.

But, after last session's attempt at seeking compromise between LGBT rights and religious rights ended in standstill, hopes for passing statewide legal protections for LGBT Hoosiers seem to remain tempered. * * *

The chamber and advocacy group Freedom Indiana say they are focusing on familiarizing people with the discrimination that gay and transgender Hoosiers can face, in addition to helping municipalities develop local ordinances to ban discrimination against LGBT people.

Indy Chamber is among the business interests that have pushed for the inclusion of sexual orientation and gender identity as protected classes in state civil rights code. Those business interests argue that it's an economic imperative to instate unequivocal protections for LGBT people, to make the state a welcoming environment for attracting and retaining new businesses and workers.

Posted by Marcia Oddi on Monday, August 29, 2016
Posted to Indiana Government

Ind. Decisions - "Monarch Beverage owners can sell liquor, judge rules" [Updated]

Vic Ryckaert reported this weekend for the Indianapolis Star:

Marion Superior Court Judge Heather Welch on Wednesday ordered the Indiana Alcohol and Tobacco Commission [ATC] to grant a liquor license to Spirited Sales, a company owned by the same people who own Monarch, the state's largest beer and wine distributor. * * *

In a 52-page order, the judge ruled that the ATC "acted in an arbitrary and capricious manner" when it denied Spirit's wholesale liquor permit last year.

Welch's ruling cites special privileges the ATC gave to Spirit's would-be competitors during the licensing hearings.

Two trade associations representing liquor sellers, Wine & Spirits and the Indiana Beverage Alliance, were allowed to cross examine witnesses, raise objections and make closing arguments "as if they were parties to the proceedings," Welch wrote.

Welch noted the ATC has granted licenses to at least 11 other companies with similar ownership circumstances.

Indiana is the only state that does not allow wholesalers to distribute both beer and alcohol. In the order, Welch cites the growing popularity of craft beer and noted that the "landscape of alcohol sales is radically different" than when the rules were drafted in 1973.

Monarch has been fighting, and losing, in court to change the law for several years.

In December the Indiana Court of Appeals ruled against Monarch's request to sell both beer and liquor.

That was the Dec. 17, 2015 COA opinion in Monarch Beverage v. ATC; see ILB summary here.

ILB: The ILB is seeking a copy of Judge Welch's opinion...

[Updated at 9:58 am] The ILB has now received a copy of the 52-page order in Spirited Sales v. ATC (49DOl-1502-PL-005520) [h/t Vic Ryckaert]. Here is some of the language in the order:

b. Prior Applicants * * *

50. In light of these previous decisions (which have been mentioned previously in this Court's Findings of Fact and Conclusions of Law) recognizing that corporate separateness would allow an owner to be involved in multiple ventures that hold different types of alcohol permits, it would appear that the Commission's denial of Spirited's application for a liquor wholesale permit was arbitrary and capricious. While not necessarily bound by precedent, the Commission would need to articulate a clear reason to distinguish Spirited's application from other owners who have sought and received alcohol permits.

51. Rather than distinguishing its rejection of Spirited's permit from the above examples, the Commission has instead argued that its past decisions were made in error. The Commission argues that these other applications should not have been awarded permits because their owners concurrently owned or managed entitles holding other alcohol permits. The Commission does not offer arguments as to why it may have earlier awarded permit; instead, the Commission wants this Court to discount its earlier decisions further by stating that they were incorrect. Indiana law prohibits this practice.

52. Despite the Commission's apparent remorse over their initial rulings, the agency has established a standard that corporate separateness can allow parties to own interests in multiple companies that hold different alcohol permits as long as the companies uphold and maintain separate corporate structures. This was not a one-time decision; the Commission has shown a clear pattern of interpreting the Prohibited Interest Provisions to allow parties to have concurrent interests in companies that hold different alcohol permits across tiers and types of alcohol. The Commission cannot eliminate this pattern by arguing now that all of these decisions were incorrect.

d. Legislative Action and Title 7.1 and Remonstrators' Participation

57. This Court recognizes that the business landscape of alcohol sales is radically different than when much of Title 7.1 was drafted in 1973. The emergence of the craft beer industry both locally and nationally has had tremendous impacts on the entire industry landscape that are only beginning to be understood. Laws written decades ago could not have accurately predicted this rapid expansion of brewing operations that has led to more breweries than ever in the United States. A similar paradigm shift could occur in the liquor industry as local and craft distillers begin to open. These new business models do not map neatly to the existing regulatory framework, and previously the Indiana legislature has responded by making adjustments to Title 7.1 that allow for industry innovation while ensuring that taxes are collected and consumers are protected.

58. This case, however, represents the ultimate shortcomings in Title 7.1 as it is written. The changes in the industry may have become too profound to rely on a framework written over forty years ago. It may be time for the legislature to study the major shifts in the industry and redraft provisions Title 7.1 to better and more fully articulate its motivations behind the threetier framework to assist members of the industry and their counsel to better understand the expectations of the Commission in order to allow the industry to grow and adapt well into the 21 st Century. However, this Court notes that modification of such statues is solely within the preview of the legislative branch.

59. In light of the Commission's past decisions under similar circumstances and its refusal to correct a known ambiguity, the Commission's disparate treatment of Spirited Sales, absent any substantial evidence to the contrary, amounts to an arbitrary abuse of discretion under I.e. § 4- 21.5-5-14, and I.C. § 7.1-3-23-30. Furthermore, the Court finds that there are not statutes which specifically address how Remonstrators should or should not be able to participate when addressing a wholesaler's permit but that the Commission might consider enacting administrative code establishing such procedures or at the very least treat all Remonstrators regarding wholesale's permits in the same fashion.

60. At this point, the Court would prefer to remand this case back to the Commission for further proceedings consistent with this ruling. However, i.e. § 7.1-3-23-41 removes that authority from this Court and requires the issuance of the liquor wholesaler's permit to Spirited upon a finding that the Commission acted in an arbitrary and capricious manner. The Court hereby GRANTS Spirited's Petition for Judicial Review and mandates the Commission to issue Spirited a liquor wholesaler's permit.

Posted by Marcia Oddi on Monday, August 29, 2016
Posted to Ind. Trial Ct. Decisions

Indiana Decisions - Guns, hospital charges, and who owns Lake Michigan's beaches - all coming up for appellate argument

Oral arguments to watch for in the next two weeks:

For details, see the earlier ILB entry this morning, "Upcoming oral arguments this week and next."

Posted by Marcia Oddi on Monday, August 29, 2016
Posted to Indiana Decisions

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 8/29/16):

Wednesday, August 31

Thursday, September 1

Next week's oral arguments before the Supreme Court (week of 9/5/16):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 8/29/16):

Next week's oral arguments before the Court of Appeals (week of 9/5/16):

Thursday, September 8

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, August 29, 2016
Posted to Upcoming Oral Arguments

Friday, August 26, 2016

Ind. Decisions - Three new disciplinary rulings from Supreme Court

In the Matter of Edward L. Harris III and In the Matter of: Samuel G. Vazanellis, are immediate suspensions from the practice of law in this state for failure to cooperate with the Disciplinary Commission’s investigation of a grievance.

In In the Matter of: James A. Shoaf, a 2-page, 5-0 order, The Court writes:

At relevant times, Respondent was a contracted public defender in Bartholomew Superior Court. Respondent received appointments to represent indigent defendants on appeal of criminal convictions pursuant to an agreement that, among other things, provided for a flat fee payment of $2,000 for appeals from sentencing orders. By custom, Respondent would seek one -half of this fee up front and the remainder when the appeal was complete. In three such sentencing appeals for which Respondent either accepted appointments or otherwise acted as appellate counsel, Respondent filed notices of appeal and case summaries but thereafter failed to advance the appeals, resulting in the Court of Appeals dismissing each appeal. In at least two of these appeals, Respondent invoiced and received from the County partial payment s of $1,000. In two appeals, Respondent did not notify the defendant that the appeal had been dismissed; and in the third appeal, in response to an inquiry from the defendant, Respondent advised the appeal had been dismissed due to a “technicality. * * *

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 60 days, beginning October 6, 2016.

Posted by Marcia Oddi on Friday, August 26, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Dorothy Williams v. State of Indiana , a 14-page opinion, Judge Najam writes:

Dorothy Williams appeals from her conviction for disorderly conduct, as a Class B misdemeanor, following a jury trial. She asserts on appeal that there is insufficient evidence to support her conviction because her conviction was based on political speech, which Williams raised as an affirmative defense under article 1, section 9 of the Indiana Constitution. Where, as here, the defendant is not the original subject of a police investigation, the defendant demonstrates that her expression was unambiguous political speech when she shows that the focus of her speech exclusively concerned government action. Such speech must both be directed at state actors and refer to state actors or their conduct. Speech directed toward a private party or that refers to a private party, or the conduct of a private party, is politically ambiguous for purposes of an affirmative defense under art. 1, sec. 9. And when the focus of speech is politically ambiguous, a reasonable fact-finder may reject the asserted affirmative defense.

If the defendant does not meet her burden of showing that her speech was unambiguously political, the State’s impairment of her speech—e.g., the defendant’s arrest for disorderly conduct—is constitutional so long as the State acted rationally in impairing the speech. However, if the defendant meets her burden of showing unambiguous political speech, the burden shifts to the State to demonstrate that the defendant’s exercise of her speech was an abuse of her right to that expression. While the words used by the defendant do not matter to this analysis, the State can meet this heightened burden in either of the following circumstances: (1) the defendant’s volume had more than a fleeting interference with a private interest, or (2) the defendant interfered with an ongoing police investigation.

Here, during her encounter with police at her home, Williams directed some of her speech toward her neighbors, and she repeatedly referred to herself and her own conduct during the encounter. Accordingly, the focus of her speech was politically ambiguous for purposes of the art. 1, sec. 9 affirmative defense, and the fact-finder was free to reject Williams’ affirmative defense. As her speech was politically ambiguous, the State’s impairment of her speech was constitutional so long as it was rational. And it was here: the State presented evidence that some of her neighbors, while in their homes, were actually alerted to Williams’ encounter with police by the volume of her speech, and the State further showed that numerous officers diverted their attention away from the task at hand because of Williams’ speech. Accordingly, we affirm Williams’ conviction for disorderly conduct, as a Class B misdemeanor.

NFP civil decisions today (2):

In re the Termination of the Parent-Child Relationship of: E.M., Minor Child, T.R. v. Indiana Department of Child Services (mem. dec.)

In the Matter of the Involuntary Termination of the Parent-Child Relationship of C.F. and A.F. (Minor Children), and C.H. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (2):

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

Micah Ormsby v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, August 26, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "State suspends medical license of former South Bend abortion doctor"

Niki Kelly reports today in the Fort Wayne Journal Gazette - the story begins:

INDIANAPOLIS - The Indiana Medical Licensing Board early today took the medical license of a former Fort Wayne abortion doctor for failing to exercise reasonable care and violating several notice and documentation requirements.

The minimum six-month suspension for Dr. Ulrich Klopfer came after 12 hours of testimony and thousands of exhibits.

But it was a story that Klopfer told himself that struck a nerve with members of the board.

He spoke of a 10-year-old girl raped by her uncle who he performed an abortion on in an Illinois hospital but didn't notify police about the child abuse. Instead, he let her go home with her parents, who knew of the rape and refused to prosecute.

It wasn't part of the complaint filed by the Indiana Attorney General's Office but appeared to shift the case, with several members of the board bringing it up during final discussion.

Board member Rebecca Moredock-Mueller described Klopfer as having a nonchalant attitude and lacked sound medical judgment.

"The thing that bothered me most was his professional incompetence," she said.

Klopfer, 71, is likely Indiana's most prolific abortion doctor in history with numbers going into the tens of thousands of procedures in multiple counties over several decades.

Testimony during Thursday's hearing - which ended this morning - showed a man who was essentially using the same abortion and sedation procedures from the 1970s and 1980s.

Klopfer told the panel he has never lost a patient in 43 years of doing abortions and has never even had a patient go into cardiac arrest.

"Women get pregnant, men don't. We need to respect women making a decision that they think is best in their life," he said. "I'm not here to dictate to anybody. I'm not here to judge anybody."

The board specifically was bothered that he didn't give pain medication to all women - only those under 16 and those who could pay extra. And when he did sedate women he didn't have qualified staff to monitor them and didn't follow best practices for administration of the drugs and emergency procedures.

Despite this Klopfer had very few complications, which board members called amazing and lucky.

Klopfer can petition for reinstatement in six months - but only after he completes a laundry list of evaluations, continuing medical education credits and child abuse training. He also was fined $3,000.

The board found him guilty of five of nine charges. One of the charges related to not reporting performing an abortion on two girls under the age of 14 within the three-day required timeline. Two referenced sedation and medical practices; two others were whether he followed state law requiring informed consent 18 hours before the procedure on a handful of women.

"Justice has been done," said Cathie Humbarger, executive director at Allen County Right to Life. "We're glad that he's been held accountable for the inferior medical treatment that he has been responsible for over many, many years."

Indiana Right to Life was instrumental in the procedure after analyzing thousands of terminated pregnancy reports and other required documentation.

KIopfer has performed abortions in Fort Wayne, Gary and South Bend for years but is currently not practicing. All three of his abortion clinics have closed but he told the panel he wants to reopen when he can.

Mary Watts - Klopfer's attorney - said the case is about forms and not about the standard of care patients received.

"He provided good medical care for his patients and did his best to follow the law," she said. "It's a question of documentation."

She said anytime deficiencies were found he corrected the procedure.

For background, see this ILB post from Sept. 19, 2014. In addition, the South Bend Tribune today also has published the Niki Kelly story, along with a number of photos and links to earlier SBT stories.

Posted by Marcia Oddi on Friday, August 26, 2016
Posted to Ind. Adm. Bd. Decisions | Indiana Government

Ind. Law - Local litigator to become Assistant Federal Defender in Tampa, Florida office

Kathleen Sweeney, a friend of the ILB and a well-known, highly skilled and effective long-time trial and appellate litigator in both the state and federal court systems, with major wins such as Wallace v. State (where our Supreme Court held in 2008 that requiring Mr. Wallace to register as a sex offender violated the prohibition against ex post facto laws) and as a member of the Marriage Equality legal team in Lee v Pence, has accepted a position as Assistant Federal Defender in the middle district of Florida in the Tampa office.

IU-McKinney Law Professor Joel Schumm has described Kathleen as "nothing short of a rock star of the criminal defense world." Her new duties begin Sept. 19th.

Posted by Marcia Oddi on Friday, August 26, 2016
Posted to Indiana Law

Indiana Decisions - COA Clarifies Limits on Claims Brought under Two Environmental Statutes

Frank J. Deveau and Melissa A. Gardner, Taft Stettinius & Hollister LLP, have authored an article in Lexology on the August 4th Court of Appeals opinion (ILB summary here, 2nd case) in Schuchman/Samberg Investments, Inc. v. Hoosier Penn Oil Co. Inc., et al that begins:

[T]he Indiana Court of Appeals recently held that a landowner’s claim under Indiana’s Environmental Legal Action Statute (“ELA”), Ind. Code § 13-30-9-1 et seq., is subject to the six-year statute of limitations applicable to property damage claims and that Indiana’s Petroleum Releases Statute (“PRS”), Ind. Code § 13-24-1-1 et seq., does not create a private right of action.
The review concludes:
The court’s analysis of the PRS is helpful because it is the first published Indiana appellate court case to interpret the PRS and evaluate when a party may have a private right of action.

Posted by Marcia Oddi on Friday, August 26, 2016
Posted to Ind. App.Ct. Decisions

Thursday, August 25, 2016

Ind. Law - "Just a ticket in fatal texting, driving crash"

Dave Bangert of the Lafayette Journal Courier has posted a very significant column this afternoon, with the sub-head: "As a driver in a January crash that killed a Lafayette driving instructor heads to court to face a possible $500 fine for texting, widow asks: ‘This is what Paul’s life was worth? A traffic ticket?’" Here is just one small portion of the lengthy, must-read story:

“What upsets Mrs. Foster is, she has a dead husband and the prosecutor has chosen to make it a traffic ticket,” Cooke said. “What kind of message does that send to the community? That’s a rhetorical question I’m not going to answer for Pat. He can answer it. He’s a big boy. But when we have the facts that we think we know of in this case, it is concerning to the surviving spouse and other people in the family that the kid’s going to be charged with an infraction, not an involuntary manslaughter or something like that.”

Harrington argues that the 2011 texting law is just half the equation. Even with locked-down proof that texting and driving caused a crash, would it amount to something more than a ticket? He points to this in case law.

In 2002, the Indiana Court of Appeals overturned a reckless homicide conviction of a truck driver who was speeding and ran into the rear of a slowing vehicle, sending the driver into the path of an oncoming dump truck. In Whitaker v. Indiana, the court wrote about “our state’s chosen policy regarding the criminalization of fatal traffic collisions.”

“The General Assembly has deemed that neither ‘negligent homicide’ nor ‘vehicular homicide’ is a crime in Indiana, as they are in some states,” the court ruled in Whitaker v. Indiana. “Clearly, since at least 1977 it has been public policy in the state of Indiana that automobile accident deaths caused by negligence, even gross negligence, fall outside the realm of criminal prosecution, and that the mere violation of a traffic law as a cause of a collision will not automatically raise the death to the level of a homicide.”

“If you talk to legislators, maybe it’s a matter of, ‘Where do you start, and where do you stop,’ on the scale of distraction,” Harrington said. “It really is just a question of volume — everyone has a cellphone now. … Legislators know these (court) decisions are out there. And they always have the ability to amend laws or make laws to make that a crime if they want to. … Due to the lack of legislation, this seems to be the accepted standard.”

Posted by Marcia Oddi on Thursday, August 25, 2016
Posted to Indiana Law

Courts - CA 6 voids Michigan sex offender registry for imposing unconstitutionally retroactive punishment

Jonathan H. Adler writes in The Volokh Conspiracy:

Today the U.S. Court of Appeals for the 6th Circuit held that recent amendments to Michigan’s Sex Offender Registration Act (SORA) are unconstitutional because they impose retroactive punishment on sex offenders in violation of the Constitution’s prohibition on ex post facto laws. Among other things, the plaintiffs argued that amendments to Michigan’s SORA increased the severity of its requirements after their convictions imposed retroactive punishment. In John Does #1-5 v. Snyder, the Sixth Circuit agreed.
From Douglas A. Berman in the Sentencing Law Blog:
In a significant panel ruling today, the Sixth Circuit has concluded in Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016) (available here) that Michigan's amendments to its Sex Offender Registration Act (SORA) "imposes punishment" and thus the state violates the US Constitution when applying these SORA provisions retroactively.
Both blog posts quote extensively from the opinion.

Posted by Marcia Oddi on Thursday, August 25, 2016
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (2):

In Estate of Kelly Ecker, by its Personal Representative, Patricia Ann Leturgez v. Estate of George Scott Samson, an 11-page opinion, Judge Bailey writes:

The Estate of Kelly Ecker, by its Personal Representative, Patricia Ann Leturgez (“the Ecker Estate”), appeals a summary judgment order denying the Ecker Estate’s motion for summary judgment against the Estate of George Scott Samson (“the Samson Estate”) and granting the summary judgment motion of Intervenors Jennifer Samson, Maria Sa mson, and Katherine Samson (“the Samson Daughters”). The Ecker Estate presents the sole issue of whether the trial court erred as a matter of law in determining that the George S. Samson M.D. Profit Sharing Plan and Trust (“the Profit Sharing Plan”) was, pursuant to Indiana Code Section 32-17-13-1(b), property specifically excluded from the definition of a “nonprobate transfer” recoverable to pay estate claims. We affirm. * * *

Ultimately , the Ecker Estate asks that we provide restriction s upon the broad exclusionary language of Indiana Code Section 32-17-13-1(b). However, courts may not engraft new words onto a statute or add restrictions where none exist. Kitchell v. Franklin , 997 N.E.2d 1020, 1026 (Ind. 2013). The Profit Sharing Plan falls within the exclusionary language of 32-17-13 -1(b) and is not recoverable by the personal representative of the Samson Estate for the payment of allowable probate claims. Although we are mindful of the tragic circumstances preceding this litigation, the law compels this result.

In In re the Scott David Hurwich 1986 Irrevocable Trust Scott D. Hurwich v. Stacey R. MacDonald, a 13-page opinion, Judge Bradford writes:
Appellant-Plaintiff Scott Hurwich is the settlor and beneficiary of the Scott David Hurwich 1986 Irrevocable Trust (“the Trust”). Appellee-Defendant Stacey R. MacDonald served as trustee of the Trust until her removal at Hurwich ’ s request on November 28, 2012. Hurwich filed aHurwich’s request on November 28, 2012. Hurwich filed a complaint against MacDonald which alleged that MacDonald mismanaged Trust assets while acting as trustee. MacDonald filed a motion to dismiss Hurwich’s complaint which the probate court granted. Hurwich filed a motion to reconsider which he later requested to be treated as a motion to correct error. Over the following six months, the probate court held two hearings on the motion to reconsider and the parties submitted several briefs in support of their positions. The probate court never made a ruling on the motion and Hurwich filed his appeal in February of 2016. On appeal, the parties dispute (1) whether Hurwich timely filed his notice of appeal, and (2) whether the probate court erred in granting MacDonald’s motion to dismiss. We reverse the probate court’s order dismissing Hurwich’s claims. complaint against MacDonald which alleged that MacDonald mismanaged Trust assets while acting as trustee. MacDonald filed a motion to dismiss Hurwich's complaint which t he probate court granted. Hurwich filed a motion to reconsider which he later requested to be treated as a motion to correct error. Over the following six months, the probate court held two hearings on the motion to reconsider and the parties submitted several briefs in support of their positions. The probate court never made a ruling on the motion and Hurwich filed his appeal in February of 2016. On appeal, the parties dispute (1) whether Hurwich timely filed his notice of appeal, and (2) whether the probate court erred in granting MacDonald's motion to dismiss. We reverse the probate court's order dismissing Hurwich's claims.
NFP civil decisions today (1):

Imad A. Elayan v. Vincent M. Campiti (mem. dec.)

NFP criminal decisions today (8):

William Verlin Martz v. State of Indiana (mem. dec.)

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

David Bryan Cunningham v. State of Indiana (mem. dec.)

Maurice Louis McCoy v. State of Indiana (mem. dec.)

Chanse T. Starr v. State of Indiana (mem. dec.)

Anita Rodriguez v. State of Indiana (mem. dec.)

Latroy Maxwell v. State of Indiana (mem. dec.)

Dameco Brent v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, August 25, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "State could limit Twitter use in courtrooms"

That is the headline to Dan Carden's story today in the NWI Times, about yesterday's Court of Appeals decision in Christopher Compton v. State of Indiana (see ILB summary here, 2nd opinion). Some quotes :

A three-judge panel of the Indiana Court of Appeals called Wednesday for the Hoosier legal community to re-evaluate its understanding of “broadcasting,” and decide how to regulate courtroom use of social media platforms by spectators and trial participants — including jurors.

“When the ethics rules regarding ‘broadcasting’ were written, social media was a vastly different medium than today,” wrote Judge Margret Robb.

“Given the rapidly evolving relationship between Twitter and our judicial system, we believe it is time for all appropriate judicial, attorney and ethics committees to come together to specifically address these concerns.”

The Twitter issue was raised in an appeal of an Evansville triple murder conviction.

Christopher Compton, 34, was sentenced last year to 200 years in prison for starting a 2014 house fire that killed Keri Jones, 28, Jazmine Jones, 3, and Donald Lankford, 76.

During Compton’s trial, Vanderburgh Superior Judge Robert Pigman authorized a local reporter to tweet about courtroom proceedings after he advised jurors and witnesses not to use the internet to gather information about the case.

Compton argued in his appeal that the live tweeting was equivalent to broadcasting the trial, which generally is not permitted in Indiana, and that it violated his right to due process by inherently prejudicing the jury against him.

The appeals court unanimously rejected the argument that tweeting is inherently prejudicial, since the U.S. Supreme Court has declined to find that even television broadcasting of a trial is automatically contrary to a defendant’s interests.

It also affirmed Compton’s convictions and sentence after finding no indication that Compton was harmed in any way by the live tweeting and that the evidence against him was overwhelming.

At the same time, the court left unresolved the question of whether live tweeting is “broadcasting,” while also noting that Twitter use by prosecutors and jurors in other states has led to mistrials.

“The pretrial instructions in this case did not instruct the jury not to refrain from seeking information through social media applications. Rather, the instructions merely instructed the jurors not to receive information from the internet,” Robb said.

“Given how easily one may access the internet in this technological age, we fear such an instruction may not be specific enough to deter jurors from using Twitter now and in the future.”

As a result, she said, the state court system needs to decide how to approach the use of social media during criminal trials.

ILB: But is the issue the medium, or the message? News of the trial will be "broadcast": in the newspaper, via the airwaves, and online. This was a multi-day trial, each day's proceedings were likely reported on the nightly news and in the morning paper. Reporters may have called in stories during breaks in proceeding during the day. Or they may have emailed their editors. Or they may have tweeted during breaks. Or they may have, if permitted by the court, tweeted or blogged, or even emailed their editors, while sitting in the courtroom. Is it reasonable to try to distinguish promulgation of the message from the route taken or the medium used? Or to restrict the messenger?

Posted by Marcia Oddi on Thursday, August 25, 2016
Posted to Indiana Courts

Ind. Decisions - "No appeal in Indiana woman's overturned feticide conviction"

Updating this ILB post from Aug. 23rd ("Purvi Patel could walk free by September in feticide case"), Rick Callanhan of the AP reports in the Indianapolis Star:

INDIANAPOLIS (AP) — The attorney for an Indiana woman whose feticide conviction for a self-induced abortion was overturned said Tuesday he's pleased the state's attorney general decided not to appeal that ruling and hopes she's freed soon from prison.

A deadline for the attorney general's office to ask the Indiana Supreme Court to take up the state Court of Appeals ruling that reversed Purvi Patel's feticide conviction passed Monday without such a request. Patel's attorneys also did not ask the court to weigh in on the July ruling. * * *

Patel's attorney, Larry Marshall, said the reasoning laid out in the appeals court's unanimous ruling "was really unassailable, so I'm very pleased the state didn't drag things out just for the sake of dragging things out." * * *

In a statement, Attorney General Greg Zoeller said the state decided not to seek a rehearing before the appeals court or ask Indiana's high court to consider the case "after carefully reviewing" the ruling and consulting with local prosecutors.

He said they "concluded that further appeal would not be productive and that resolving the case now will serve the interests of justice."

Marshall said he expects the appeals court decision to be certified within about 10 days. After that, the St. Joseph County trial court judge will set a resentencing hearing.

If that judge sentences Patel to the maximum three years, Marshall said she actually would face an 18-month sentence because of credit for good behavior.

Under that sentence, Patel could potentially be released as early as late September because she has already served about 17 months, Marshall said.

"We're hoping for a speedy resentencing and for Purvi's speedy release," he said.

Posted by Marcia Oddi on Thursday, August 25, 2016
Posted to Ind. App.Ct. Decisions

Wednesday, August 24, 2016

Courts - "Is court deference to federal agencies unconstitutional?" - Chevron ...

Alison Frankel's "On the Case" Reuters column begins:

(Reuters) – The first thing I want to tell you about a concurrence by Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals in Gutierrez-Brizuela v. Loretta Lynch is to read it yourself. Rarely will you run across such an elegant legal essay, closely argued and packed with citations yet as accessible as good journalism. If the whole judging thing doesn’t work out for Gorsuch, who is often named as a potential U.S. Supreme Court pick in a Republican administration, he has a real future as a law blogger.

The judge took the opportunity of a complicated immigration case to write about the tension between separation of powers doctrine and the Supreme Court’s 1984 opinion in Chevron v. Natural Resources Defense Council, which directed courts defer to executive-branch agencies in the interpretation of ambiguous statutes. The case involved a foreign national who sought legal residency in the United States after entering the country more than once without the proper authorization. Until 2007, the U.S. Attorney General had the discretion, under precedent in the 10th Circuit, to consider applications by people in that category, despite a provision in federal immigration law that required a 10-year waiting period outside of U.S. borders for those who entered the country illegally on more than one occasion.

Posted by Marcia Oddi on Wednesday, August 24, 2016
Posted to Courts in general

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

The ILB normally doesn't summarize immigration cases, but given the current high level of interest in immigation enforcment, this case may prove instructive.

Some quotes from an immigration decision from the 7th Circuit, involving an Indiana resident:

Since coming to the United States from Ecuador without authorization in 2000, Arias has worked for the Grabill Cabinet Company in Grabill, Indiana. The company called Arias an “excellent employee” in a letter Arias submitted to the immigration court in support of her application for cancellation of removal. To work for Grabill Cabinet, Arias provided a false social security number. She has presented evidence that she has filed an income tax return for every year she has been in the United States through 2012.

Arias has also raised a family in the United States. Arias and her husband have been married since 1989. Their three children have grown up in the United States. The two younger children, five and fourteen years old, are United States citizens. Her oldest child, twenty‐six years old, was born in Ecuador but has received relief from removal through the Deferred Action for Childhood Arrivals program.

In 2010, Arias was charged in federal court with falsely using a social security number to work for Grabill Cabinet in violation of 42 U.S.C. § 408(a)(7)(B). Section 408(a)(7)(B) makes it a crime to misrepresent a social security number to be one’s own to obtain a benefit or “for any other purpose.” Arias pled guilty and was sentenced to just about the lightest felony sentence one is likely to find in modern federal prac‐tice: one year of probation and a $100 special assessment. After Arias completed her probation successfully, she received employment authorization and Grabill Cabinet rehired her. In 4 No. 14‐2839 the letter from the company that Arias submitted to the immigration court, Grabill Cabinet said that it “did not have any problems” welcoming her back to her old job. Her indictment charged Arias with an “intent to deceive Grabill,” although it is evident that Grabill itself did not have a problem with Arias’s deception and does not view itself as a victim. There is no indication in the record that Arias has broken any state or federal laws other than her unauthorized immigration into this country and false use of a social security number to work.

In 2010, Arias received a notice to appear for removal proceedings. She admitted removability but applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1). The Attorney General may cancel the removal of unauthorized immigrants who have been in the United States for at least ten years and who can show that their removal would cause “exceptional and extremely unusual hardship” to their children, spouses, or parents who are United States citizens, among other requirements. Id.

Such discretionary cancellation is barred, however, if the immigrant has been convicted of a “crime involving moral turpitude.” 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1229b(b)(1)(C). “Moral turpitude” is not defined in the statute. The Board and federal courts have labored for generations to provide a work‐ able definition. See generally Jordan v. De George, 341 U.S. 223, 227–29 (1951) (holding that conspiracy to evade payment of liquor tax was crime involving moral turpitude, and noting that all varieties of fraud are treated likewise); id. at 232–45 (Jackson, J., dissenting) (“moral turpitude” is too vague to support deportation).

The immigration judge held that Arias’s crime of conviction was a crime involving moral turpitude. The judge relied No. 14‐2839 5 on two of this circuit’s cases: Marin‐Rodriguez v. Holder, 710 F.3d 734 (7th Cir. 2013), and Miranda‐Murillo v. Holder, 502 F. App’x 610 (7th Cir. 2013), a non‐precedential order. A one‐member panel of the Board affirmed. * * *

Arias petitioned for judicial review of the Board’s decision denying cancellation of removal. Under 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to review the legal question whether a crime involves moral turpitude. * * *

The issue is whether a violation of 42 U.S.C. § 408(a)(7)(B) is a crime involving moral turpitude. We have not decided the issue in a precedential opinion, and other circuits are split.

Judge Hamilton authored the 28-page opinion in Maria Arias v. Loretta E. Lynch. Judge Posner's concurring opinion begins on p. 16:
I agree that we should grant the petition and therefore remand the case to the Board of Immigration Appeals for reconsidera‐ tion of the Board’s refusal to cancel the order that the peti‐ tioner be removed (deported) from the United States. I do not however agree with the respect that Judge Ham‐ ilton’s opinion accords the concept of “moral turpitude.” It is preposterous that that stale, antiquated, and, worse, mean‐ ingless phrase should continue to be a part of American law. Its meaninglessness is well illustrated by this case; and even if it is to be retained in immigration law it was misapplied by the Board of Immigration Appeals. The concept plays a particularly malign role in immigra‐ tion adjudication, as this case illustrates, because conviction of a crime involving moral turpitude bars the Attorney Gen‐ eral from canceling the removal, or adjusting the status, of an alien. See 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I). * * *

If anything is clear it’s that “crime of moral turpitude” shouldn’t be defined by invoking broad categorical rules that sweep in harmless conduct. Yet that’s what the Board of Immigration Appeals did in this case, in upholding the im‐ migration judge’s conclusion that the petitioner had commit‐ ted a crime of moral turpitude; it said that a violation of 42 U.S.C § 408(a)(7)(B) is “categorically a crime involving moral turpitude.”

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

Environment - "New vessel a friend to Great Lakes environment"

The caption to the photo says it all: "Officials with the Port of Indiana-Burns Harbor welcomed the Federal Caribou, a new generation, oceangoing vessel that reportedly emits fewer greenhouse gases, uses less fuel and flushes out more invasive fish species than similar ships."

A few quotes from the long story in the Chicago Tribune, reported by Karen Caffarini:

The $25 million bright red ship is one of seven oceangoing lakers owned by Montreal-based Fednav Limited that is equipped with a new ballast water treatment system.

Fednav President and co-CEO Paul Pathy said the new system treats the ballast water twice for greater protection of the Great Lakes. He said the dual treatment, installed by JFE Engineering Corp., filters out any organisms and provides chlorine disinfection.

While the ship is on its fourth trip, this is its maiden voyage to Indiana, according to Capt. Rajat Roychowdhury.

Pathy said Fednav opted to use the new water ballast system in its seven new vessels before it is required to do so by any country or state and intends to add the system to all its new vessels going forward.

He said each system costs about $500,000. * * *

Carol Comer, with Indiana Department of Environmental Management, said with these new vessels Fednav has shown that a company can be both economically successful and environmentally responsible at the same time.

She said the new ballast system is critical to the Great Lakes, which has endured such invasive species as zebra mussels and lamprey brought in by oceangoing vessels.

Comer said if more companies follow Fednav's example, the healthier the Great Lakes will be. But she added this is no quick fix.

"It will take some time to recover from some of the damage that was done," she said.

The NWI Times yesterday had a story with photos of the ship itself, the Federal Caribou.

Posted by Marcia Oddi on Wednesday, August 24, 2016
Posted to Environment

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 15 NFP memorandum decision(s))

For publication opinions today (4):

In Brian Fuchs v. Riverbend Assisted Living , an 11-page opinion, Judge Barnes writes:

Brian Fuchs appeals the trial court’s issuance of three workplace violence restraining orders on behalf of employees of Riverbend Assisted Living (“Riverbend”). We affirm.

As in Torres, we conclude that Fuchs’s conduct qualifies as a credible threat of violence with respect to Wheeler, Rice, and Smith. Fuchs repeatedly harassed, screamed at, and intimidated Riverbend employees. Although Fuchs may have been protesting the care his mother was receiving, his behavior went far beyond advocating for his mother. Repeatedly screaming, threatening, cursing, getting in employees’ faces, and backing employees into corners does not serve a legitimate purpose. Further, Rice and Smith testified that they were scared of Fuchs, and Wheeler testified that she was afraid Fuchs was going to initiate a physical altercation with her. Given Fuchs’s repeated conduct, a reasonable person would fear for his or her safety. Fuchs’s arguments to the contrary are merely requests that we reweigh the evidence, which we cannot do. Riverbend presented sufficient evidence to demonstrate that the employees suffered credible threats of violence from Fuchs at their place of employment. The trial court properly entered the workplace violence restraining orders.

In Christopher Compton v. State of Indiana , a 13-page opinion, Judge Robb writes [ILB emphasis]:
Following a trifurcated jury trial, Christopher Compton was convicted of three counts of felony murder and found to be an habitual offender. Compton appeals, raising two restated issues: (1) whether Compton was deprived of due process when the trial court allowed the media to Tweet live updates of his trial from the courtroom, and (2) whether the trial court abused its discretion in admitting evidence of Compton’s incriminatory statements. Concluding the trial court did not deprive Compton of due process nor did it err in admitting evidence of Compton’s statements, we affirm. * * *

Compton contends the trial court violated Rule 2.17 of the Code of Judicial Conduct in allowing the media to Tweet live updates of his trial from the courtroom, arguing Tweeting live updates of his criminal trial amounts to inherently prejudicial “broadcasting” that violates his right to due process. The State counters Tweeting does not amount to broadcasting, and even if so, Compton has not demonstrated he suffered any prejudice.5 Because broadcasting a defendant’s trial is not inherently prejudicial and Compton has not demonstrated he suffered prejudice as a result of the alleged broadcasting, we need not address whether Tweeting live updates of a criminal trial is deemed “broadcasting.” * * *

As noted above, it is unnecessary to decide whether Twitter is “broadcasting,” because even assuming it is, broadcasting is not inherently prejudicial and Compton has shown no specific prejudice to him in this case. * * * [P]rior to trial, the trial court instructed the jury not to receive information about the case from any source, including internet sources; the jury was sequestered during the Twitter discussion; the trial court instructed the media not to Tweet in a manner that would disrupt proceedings; the trial court instructed the attorneys to notify their respective witnesses not to use Twitter until after they testified; and there is no evidence any witnesses or jurors viewed any Tweets pertaining to the trial. We conclude Compton was not deprived of due process when the media was allowed to Tweet live updates of his criminal trial from the courtroom.

[ILB: But see lengthy footnote on p. 9] - begins "we take this opportunity to express our concern as to the impact social media applications have on due process and trials."]

In J.J. v. State of Indiana , an 8-page opinion, Judge Najam writes:
J.J., a minor, appeals the juvenile court’s true finding for dangerous possession of a firearm as a Class A misdemeanor if committed by an adult. The only issue he raises on appeal is whether the police had reasonable suspicion to stop and search him. We affirm and remand with instructions.
In Thomas Pinner v. State of Indiana , a 14-page, 2-1 opinion, Judge May writes:
Thomas Pinner appeals the denial of his motion to suppress. As no reasonable suspicion justified the investigatory stop, we reverse. * * *

As the officers did not have reasonable suspicion to stop Pinner and this was not a consensual encounter, the trial court abused its discretion when it denied his motion to suppress. As such, we reverse.

Baker, J., concurs.
Brown, J., dissents with separate opinion. [that begins at p. 8, and concludes] I would find that “the degree of concern, suspicion, or knowledge that a violation has occurred” was high given that the officers had received a description of a man and his companion, in which a cab driver expressed fear of being robbed by the man, that the officers observed Pinner and his companion who fit the description, that, when asked if he was carrying a gun Pinner shuffled nervously and was hesitant to answer before ultimately lying and saying that he did not have a gun, and that the officers promptly observed that, indeed, he did have a gun on his person. I would find that the degree of intrusion was especially low, given that one of the officers merely asked Pinner if he could stand up for him before observing the gun on his person. I would find that the extent of law enforcement needs was strong in securing the gun upon observing that Pinner was armed after acting nervous and stating that he was not armed. Thus, I would find that given the totality of the circumstances, the interaction between the officers and the confiscation of Pinner’s gun did not violate Pinner’s rights under Article 1, Section 11 of the Indiana Constitution.

I believe that Pinner’s motion to suppress was correctly denied and would affirm the trial court.

NFP civil decisions today (5):

Mark A. Laesch v. Kathryn B. Laesch (mem. dec.)

Timothy B. Hopper v. Angela C. Hopper (mem. dec.)

Jack Gable and Janet Gable v. Schuler Company, Inc. (mem. dec.)

Katrina Morgan v. Lake County Juvenile Center, Lake Superior Court, Juvenile Division and Juvenile Division Judge (mem. dec.)

In the Matter of J.J., Child in Need of Services E.B. (Mother) v. Marion County Department of Child Services, Child Advocates, Inc. (mem. dec.)

NFP criminal decisions today (10):

Matthew Keene Goodwin v. State of Indiana (mem. dec.)

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

Gerald Rachell v. State of Indiana (mem. dec.)

Christian Duckworth v. State of Indiana (mem. dec.)

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

Joe E. Mourey v. State of Indiana (mem. dec.)

Charles Alan Keel v. State of Indiana (mem. dec.)

Octavius Morris v. State of Indiana (mem. dec.)

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

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

Posted by Marcia Oddi on Wednesday, August 24, 2016
Posted to Ind. App.Ct. Decisions

Tuesday, August 23, 2016

Ind. Gov't. - "I also question whether a law enforcement agency can justify a $150 fee for a copy"

That is a quote from a comment by Steve Key of the Hoosier State Press Association that the ILB posted this morning.

The Evansville Courier & Press story by Shannon Hall that appeared in this morning's paper addresses the same issue. It begins:

It all comes down to cost.

Evansville Police Department officials say they want to be transparent with body and dash cameras, but the cost to adhere to the new body camera law will fall on the person requesting to view or copy a recording.

Evansville and other Indiana police departments say they don't want to deter the public from asking for body camera footage, but the costs to store and obscure the footage according to state law makes it too steep to hand out all footage for free.

More from the story:
"It's going to be substantial," Pugh said. "It's going to be something unforeseen we're going to have to purchase. The law has put a financial burden on the department's budget that we weren't expecting."

The department plans to charge a $150 fee for a copy of footage, the maximum amount an agency can charge. The main reason the department plans to charge the maximum is because of the expense of storing footage. The new law requires local departments to store all footage for 190 days or for two years if requested.

Because the Evansville police officers turn on their body cameras whenever they interact with the public, there’s hours upon hours of footage that will be stored. * * *

If a person requests a copy of body camera footage for a specific incident, it may actually cost the person more than the $150 fee. Pugh said if multiple officers are recording the incident, then each recording will cost $150.

"We're following the law the way it was laid out by the General Assembly," Pugh said. "We're being as transparent as the law allows us to be."

In the past, the Evansville Police Department has released some body camera footage to the public, and Pugh said he doesn't think that will change. But what is being released for free will be up to the police department.

"We don't think it's a perfect law in both ways," Pugh said. "I know some people are going to say that the fee we're charging, that somehow we're trying not to be transparent, but hey ... budgets are tight. We've got to somehow recover that."

Another big expense for the department will be for software to obscure some images on certain footage. Some body cameras were created to be tamper proof, Chandler said.

There is much more to read in the lengthy story.

Posted by Marcia Oddi on Tuesday, August 23, 2016
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides one Indiana case today, regarding an effort to intervene in forfeiture actions based on ownership by the collective membership of the Outlaws

In USA v. Joshua N. Bowser (SD Ind., Pratt), a 12-page opinion, Judge Rovner writes:

This appeal involves the government’s efforts to seize personal property bearing the insignia of the Outlaws Motorcycle Club (the “Outlaws”), and the effort of a representative of the Outlaws to intervene to prevent those forfeitures. The forfeiture actions stemmed from criminal cases brought against a number of Outlaws members, including all members of the Indianapolis chapter of the Outlaws. * * *

Affirmed.

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

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (3):

In Kyleigh Nolan v. Clarksville Police Department and Town of Clarksville, Indiana, a 14-page opinion, Chief Judge Vaidik writes:

Nineteen-year-old Kyleigh Nolan volunteered to play the role of a hostage in a training exercise being conducted by the Clarksville Police Department. She was injured and later sued the police department and the Town of Clarksville. The trial court granted summary judgment for the defendants after finding that Nolan had failed to provide sufficient pre-suit notice of her claim pursuant to the Indiana Tort Claims Act (“ITCA”). While we agree that Nolan failed to comply with the statutory-notice requirement, we also conclude that there is a genuine issue of material fact as to whether the defendants, by virtue of their own conduct following the incident, are estopped from asserting Nolan’s noncompliance as a defense. We therefore affirm in part and reverse in part the grant of summary judgment in favor of the defendants. On remand, Nolan is entitled to present her estoppel claim to the jury at trial. * * *

We recognize that our Supreme Court previously held that an estoppel claim in the ITCA-notice context must be resolved by the trial court before trial. Powell, 393 N.E.2d at 192; see also Allen, 496 N.E.2d at 417 (relying on Powell in reversing summary judgment on plaintiff’s estoppel claim and remanding for determination by “trial judge as trier of fact”). However, we see no basis on which to treat Nolan’s estoppel claim any differently than the Supreme Court treated the fraudulent-concealment/estoppel claim made by the plaintiffs in Lyons.

Affirmed in part, reversed in part, and remanded for further proceedings.

In Tyrone Grayson v. State of Indiana, a 7-page opinion with a pro se defendant, Chief Judge Vaidik writes:
The Indiana Parole Board alleged that Tyrone Grayson violated his parole by committing a new offense. The parole board alleged that Grayson was on parole for one particular sentence when he committed the new offense. After Grayson’s parole was revoked, he filed an application for a writ of habeas corpus alleging that he was not on parole for that sentence when he committed the new offense. Realizing a mistake in the records, the Indiana Department of Correction fixed the records to show that Grayson was on parole for a different sentence when he committed the new offense. Without a new parolerevocation hearing, the State submitted to the trial court corrected records to support Grayson’s parole revocation, and the trial court—construing Grayson’s habeas application as a petition for post-conviction relief—found that Grayson was not entitled to relief.

Because parolees charged with violations of parole are within the protection of the Due Process Clause of the Fourteenth Amendment, we find that Grayson was entitled to an opportunity to be heard on the allegation that he violated parole for the correct sentence. We therefore reverse.

In Jay Lynn v. State of Indiana , a 10-page opinion, Judge Crone writes:
Jay Lynn appeals his convictions, following a jury trial, for battery and disorderly conduct, both as class B misdemeanors. He contends that the trial court committed fundamental error regarding a preliminary jury instruction and that the State did not present sufficient evidence to support his disorderly conduct conviction. Finding no fundamental error and concluding that the State presented sufficient evidence, we affirm. * * *

This evidence unquestionably supports a reasonable inference that Lynn engaged in a hostile encounter with Johnson that was both physical and verbal in nature. Thus, the evidence is sufficient to establish that Lynn engaged in fighting. His arguments on appeal are merely a request that we reweigh the evidence in his favor, and we will not. The State presented sufficient evidence to sustain Lynn’s conviction for disorderly conduct.

NFP civil decisions today (4):

In re the Paternity of A.D.: Abram M. Dwyer v. Lindsy L. (Redden) Eickhoff (mem. dec.)

Jose Menendez v. CACH, LLC (mem. dec.)

Michael Hale v. Dr. Lolit Joseph, Nurse Lesa Wolfe, and Nurse Teresa Lennings (mem. dec.)

K.S. v. D.S. (mem. dec.)

NFP criminal decisions today (2):

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

Brian K. Bell v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, August 23, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, re what constitutes refusal to take a chemical test

In Kristy Burnell v. State of Indiana, an 8-page, 5-0 opinion, Justice Rucker writes:

The driving privileges of a motorist were administratively suspended on grounds the motorist refused to take a chemical test. Upon judicial review the trial court declined to set aside the suspension. We affirm the trial court’s judgment. * * *

Burnell appealed and in a divided opinion, with each judge writing separately, the Court of Appeals affirmed the judgment of the trial court. * * *

The record here shows Burnell clearly heard and understood the officer’s offer of the opportunity to take a chemical test. She thus was capable of refusal. And although first declaring “yeah, I guess I gotta can take it,” Burnell nonetheless stepped away from the officer twice, 8 justifying a reasonable person in the officer’s position to believe that Burnell manifested an unwillingness to submit to the test. We are not unmindful the evidence in this case presents conflicting inferences. But in appealing from a negative judgment Burnell has the burden of demonstrating the evidence leads to but one conclusion and the trial court reached an opposite conclusion. She has failed to carry this burden.

Conclusion. We affirm the judgment of the trial court.

Posted by Marcia Oddi on Tuesday, August 23, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Purvi Patel could walk free by September in feticide case"

Christian Sheckler of the South Bend Tribune reports today in a story that begins:

Purvi Patel, the Granger woman whose feticide conviction was overturned by the Indiana Court of Appeals last month, may soon walk free after the state chose not to seek an opinion from the Indiana Supreme Court, her lawyer said.

Sentencing guidelines suggest Patel could be released by the end of September. The latest news brings closer the conclusion of a case that drew national headlines and sparked an intense reaction among both anti-abortion activists and those who feared authorities could use the state's feticide law to punish women for their own abortions.

Monday's deadline passed without either side asking the high court to take up the case, Patel's lead attorney, Stanford University law professor Lawrence Marshall, told The Tribune by phone Tuesday morning.

Here are earlier ILB entries on the Patel case.

Posted by Marcia Oddi on Tuesday, August 23, 2016
Posted to Ind. App.Ct. Decisions

Environment - "EDITORIAL: Time for answers in E.C. lead crisis"

From the start of a NWI Times editorial yesterday:

For most of the summer, we've seen a barrage of information released by federal and local government officials regarding alarming lead levels in the soil of a low-income East Chicago neighborhood.

What we now need to see is concerted effort to hold accountable those who allowed city residents to reside in what already was known as an EPA Superfund site because of the contamination.

We need to know why it seemingly took so long for the EPA to communicate the toxic lead levels to the city and its residents — and why an elementary school was constructed within the Superfund site eight years ago.

A bright side to this dire health fiasco has been the quick response of Mayor Anthony Copeland's administration after learning from the EPA in May about the untenable lead levels in the West Calumet Housing Complex.

Copeland's office showed appropriate urgency and leadership in promptly issuing letters to affected residents that it would be safest for them to relocate.

And the city appears to be diligently working with the U.S. Department of Housing and Urban Development to secure relocation vouchers for as many as 1,200 residents.

But why did it take so long for this important information to land in the hands of East Chicago leaders and residents?

See also this ILB post from August 16th, and this one from August 22nd.

Posted by Marcia Oddi on Tuesday, August 23, 2016
Posted to Environment

Ind. Gov't. - Updating "Citing new law, Evansville police increase costs to view, obtain body camera footage"

The original ILB post, referencing a story in the Evansville Courier & Press, appeared on Aug. 17th. Later that same day, the ILB posted a note from a reader, pointing to the statute to question the legality of a charge of $37.50 per hour to watch the recording at the police station.

On August 18
, in a post headed "Evansville Police Dept. backtracks on body camera viewing fee," the ILB quoted a new C&P story that credited the ILB post for the removal of the viewing charge.

Yesterday, the ILB received a note from Steve Key, counsel to the Hoosier State Press Association, that raises an additional issue:

I also question whether a law enforcement agency can justify a $150 fee for a copy. A clerk getting $20 a hour pay would have to spend 7 ½ hours creating the copy to reach the $150 cap (not adding in cost of disc or memory stick police put copy on or 5% upcharge allowed under “direct cost” definition.

If that’s the usual time frame, then law enforcement agencies and/or prosecutors are going to be overwhelmed because a defense attorney is always going to ask for copies of police body camera video as well as all private and public surveillance camera video camera footage that might become evidence in a criminal case.

I think Evansville police committed the same error a lot of departments will – they read $150 cap and think they can charge it without taking into account the “direct costs” limitation that first applies.

Posted by Marcia Oddi on Tuesday, August 23, 2016
Posted to Indiana Government

Monday, August 22, 2016

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

In Jimmie Poe, Sr. v. Leann LaRiva (SD Ind., Lawrence), a 10-page opinion, Judge Kanne writes:

In 1996, a jury convicted Petitioner Jimmie Poe of several narcotics‐related offenses, including engaging in a continuing criminal enterprise (“CCE”). On June 1, 1999, the Supreme Court decided Richardson v. United States, 526 U.S. 813 (1999), which rendered the CCE jury instructions used in Poe’s trial erroneous.

Poe petitioned, on July 16, 1999, for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging his conviction under Richardson. Fourteen months later, the district court dis‐ missed Poe’s § 2241 petition without prejudice, because he should have filed under 28 U.S.C. § 2255. On June 18, 2001, Poe petitioned for a writ of habeas corpus, pursuant to § 2255, which was subsequently denied as time‐barred. We affirmed the district court’s denial of Poe’s § 2255 petition in Poe v. United States, 468 F.3d 473 (7th Cir. 2006).

On October 28, 2014, Poe filed a new § 2241 petition, chal‐ lenging his conviction and sentence in light of Alleyne v. United States, 133 S. Ct. 2151 (2013). The district court denied his petition, again for not filing it under § 2255, and he ap‐pealed. We affirm.

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

Ind. Decisions - SD Ind. issues preliminary injunction on behalf of a Florida-based manufacturer of nicotine-containing e-liquids

Here is the 38-page order in Goodcat, LLC v. Cooks, et al., issued Aug. 19th by Chief Judge Richard L. Young, United States District Court, Southern District of Indiana. In brief:

ORDER granting GoodCat's [9] Motion for Preliminary Injunction. The court hereby ENJOINS the ATC from enforcing Indiana Code §§ 7.1-7-2-14, 7.1-7-2-22(3)(B), and 7.1-7-4-1(d) against GoodCat. The court further ORDERS the ATC to issue GoodCat a manufacturing permit until GoodCat's claims reach final disposition.

For background, start with this ILB post from June 30th.

Posted by Marcia Oddi on Monday, August 22, 2016
Posted to Ind Fed D.Ct. Decisions

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

For publication opinions today (3):

In David Heber v. Indianapolis Metropolitan Police Department, and City of Indianapolis Office of Corporation Counsel, a 6-page opinion, Judge Barnes writes:

David Heber appeals the trial court’s dismissal of his complaint against the Indianapolis Metropolitan Police Department (“IMPD”) and the Office of Corporation Counsel of the City of Indianapolis (“OCC”) (collectively “the Appellees”). We reverse and remand

The sole restated issue is whether the trial court properly concluded that the Appellees could not be sued under the Indiana Access to Public Records Act (“APRA”). * * *

On June 26, 2015, Heber filed a request with IMPD and the OCC for records related to the robbery aside from the initial Incident Report, pursuant to the APRA. The OCC’s public access counselor, Samantha DeWester, denied this request, stating that Heber had failed to specify which records he was seeking with reasonable particularity. On July 15, 2015, Heber filed a second, more detailed request for records related to the robbery. DeWester denied this second request, again on the basis that it lacked reasonable particularity.

On August 2, 2015, Heber filed a complaint with the Indiana Public Access Counselor, Luke Britt, with respect to the Appellees’ failure to provide him with the requested records. On September 15, 2015, Britt filed an advisory opinion stating his belief that the Appellees violated the APRA by not timely responding to the June 26, 2015 records request and that they were not justified in denying either request on the basis of an alleged lack of reasonable particularity. After issuance of this advisory opinion, the Appellees did not provide the requested records to Heber.

On December 26, 2015, Heber filed a complaint in the trial court against the Appellees, seeking release of the requested records, along with an award of reasonable costs, attorney fees, and civil penalties. On January 19, 2016, the Appellees filed a motion to dismiss Heber’s complaint. The motion alleged solely that the Appellees were not entities that could be sued under the APRA. The trial court granted the motion to dismiss. Heber now appeals. * * *

Whether Heber ultimately will be successful in proving the Appellees violated the APRA remains to be seen. However, the Appellees’ motion to dismiss, which failed to cite controlling contrary authority, and the erroneous granting of that motion have necessitated expense and significant delay in resolution of the case. Under Indiana Appellate Rule 67, this court may sua sponte award appellate attorney fees to a prevailing party if an appeal “is ‘permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.’” In re Walter Penner Trust, 22 N.E.3d 593, 602 (Ind. Ct. App. 2014) (quoting GEICO v. Rowell, 705 N.E.2d 476, 483 n.12 (Ind. Ct. App. 1999)), trans. denied. Although we commend the Appellees for now conceding that the motion to dismiss must be reversed, the fact remains that the motion was granted and Heber had to pursue this appeal because of a wholly meritless and possibly frivolous argument by the Appellees. As such, we conclude that an award of appellate attorney fees to Heber is appropriate. We remand for the trial court to calculate an appropriate amount for such an award.

In Douglas M. Curtis v. State of Indiana , a 7-page opinion, Judge Barnes writes:
Douglas Curtis appeals his conviction for Class A misdemeanor criminal trespass. We reverse. * * *

We conclude that a person in Curtis’s position, being told he or she had forty-eight hours to somehow remove his personal property from the premises, would reasonably believe he or she had permission to remain on or re-enter the premises at any time during the next forty-eight hours. Indeed, Curtis testified that when police arrived, he was in the process of loading his car with his personal property; there is no evidence to contradict this testimony. Furthermore, Neff did not tell Curtis that he had to immediately leave and/or that he had to arrange through his father to get his personal property, rather than removing the property himself. There also is no evidence that Curtis attempted to dispute Neff’s no trespass order or indicated that he would refuse to leave. In sum, there is insufficient evidence Curtis had the necessary mens rea to have committed criminal trespass.

In Larry R. Beedy, Jr. v. State of Indiana, a 12-page, 2-1 opinion, Judge Altice writes:
Following a jury trial, Larry R. Beedy, Jr. was convicted of sexual misconduct with a minor, a Level 5 felony, and subsequently sentenced to six years, with three years executed in the Department of Correction, one year in community corrections, and two years suspended to probation. Beedy presents two issues for our review, one of which we find dispositive: Was Beedy erroneously precluded from asserting the affirmative defense set forth in Ind. Code § 35-42- 4-9(e)? We reverse. * * *

Our reading of the statute leads us to conclude that the language “any other person” is unambiguous.9 We, however, do not interpret this language as the trial court did or as the State urges. The trial court’s interpretation that “any other person” means any person other than the defendant renders the phrase “any other person” absolutely meaningless. Indeed, it is illogical to interpret the language in that manner because the defendant cannot commit a sex crime against himself, thus there is no need for the additional language. To us, it is clear that when read in context, the plain language of I.C. § 35-42-4-9(e)(4) means that a prior sex offense against the same victim does not render the defense inapplicable. Through the language employed, the legislature has provided a defense for an individual who is in a dating or ongoing personal relationship with the victim, who is not more than four years older than the victim, who engages in consensual sexual conduct with the victim, and who does not have prior convictions/adjudications against a victim other than the victim in the instant case.

Having determined that the statutory language is unambiguous, we need not address the State’s various arguments construing the statute contrary to its plain meaning. Further, to the extent the State’s arguments are based on policy considerations, this is not the proper forum. We therefore conclude that Beedy established his entitlement to the defense found in I.C. § 35-42-4-9(e), and consequently, his conviction cannot stand. We reverse and remand this cause with instructions to vacate Beedy’s sexual misconduct with a minor conviction.

Judgment reversed and remanded with instructions.

Bailey, J., concurs.

Bradford, J., dissents with opinion. [which begins, at p. 10] I respectfully disagree with the majority’s conclusion that Beedy is entitled to raise a “Romeo and Juliet” defense in this case because the victim in his previous adjudications for child molesting and child exploitation happens to be the same child he was charged with victimizing in this case. Consequently, I respectfully dissent.

NFP civil decisions today (1):

In re the Marriage of: Jennifer Bell v. John K. Bell (mem. dec.)

NFP criminal decisions today (2):

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

Marshawn Malik Weems v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, August 22, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Prosecutor: Local fraud case jeopardizes consumers "

Bob Kasarda of the NWI Times reports:

VALPARAISO — An attorney with the Indiana secretary of state’s office warned last week of dire consequences for consumers if the defense succeeds in an attempt to erase nearly half of the 19 charges in the fraud case against former local real estate agent Donald Johnson.

Matt Kestian stood before Porter Superior Court Judge Roger Bradford and opposed an argument that the charges should be dismissed because they were filed beyond the five-year statute of limitations. * * *

Kestian said what concerned him about the defense’s request is that it would set the stage for others to avoid prosecution by setting up long-term investments that would conceal wrongdoing by maturing after the statute of limitations, which is the period following a crime when criminal charges can be filed.

“That can’t be the law,” he said.

The law allows for criminal charges to be filed beyond the statute of limitation period, if it can be shown a defendant concealed a crime, Kestian said.

He accused Johnson of concealing his crime by not registering as an agent and not registering the securities, which left the state with no way of discovering that unlawful acts occurred between two private parties. Johnson also structured the securities to mature many years down the road.

Posted by Marcia Oddi on Monday, August 22, 2016
Posted to Indiana Courts

Ind. Gov't. - "Indiana mayors to lobby statehouse for help on gun ordinances"

That is the headline to this lengthy (with video) WTTV4 story by Russ McQuid. Some quotes:

INDIANAPOLIS, Ind. -- The phone calls to Bloomington Mayor John Hamilton’s office began in June when parents reported a man was spotted walking around the municipal swimming pool at Bryan Park with a gun on his hip.

“A lot of people didn’t know who he was and a lot of people called me and said, ‘Whoa! Do with have guns at our pools? Can’t we stop that?’” Hamilton recalled. “The short answer is, no, we’re not allowed to stop that.”

Mayor Hamilton’s summer of gun questions continued on the 4th of July as his city’s annual freedom celebration featured not only a 21-gun salute to kick off the festivities but a pickup truck in the parade sponsored by the Panther Ridge Training Center that carried a man holding a M60 machine gun with a bandolier of bullets hanging down.

“And we got more phone calls from people saying, ‘Wait a minute…there’s a machinegun coming down our parade. Can’t you stop it?’” said the mayor, “and I can’t.”

That’s because of a 2011 Indiana law, endorsed by the National Rifle Association and passed by the General Assembly, that prohibits mayors and local councils from passing even minimal ordinances at the town and city level to restrict the display of firearms in public.

“I can’t pass a regulation, a law, anything to do in any way with guns ammunition or accessories,” said Hamilton, “and if I do try to do anything, I’m subject to triple attorneys’ fees, penalties, so we’re all prohibited from doing anything.”

About the only thing Hamilton could do was write an OpEd piece for the New York Times titled, “Pistols at the Pool, Machine Guns on Parade and Nothing We Can Do.”

“Our preemption law on the state level is so comprehensive that, with very few exceptions, little room exists for mayors for any local action at all,” said Dr. Jody Madeira of the I-U Maurer School of Law. “When mayors go to the statehouse and lobby, their hands are tied, unfortunately, just like citizens’ hands.”

Indianapolis Mayor Joe Hogsett is similarly frustrated as he watches the city he inherited last January steadily head for another record murder tally to potentially surpass last year’s total of 144 criminal homicides.

“After all as mayors we are held accountable and responsible for the gun violence in our cities,” said Hogsett, “and what Mayor Hamilton was saying was, ‘Please give us the flexibility, give us the ability, to respond in meaningful ways to varying degrees of violence.’”

Hogsett said he would be look forward to joining with other Indiana mayors such as Hamilton in approaching the General Assembly this fall to lobby for some moderation in the state’s gun ordinance restrictions.

“I would think if you could focus on the very most important thing I could do in conjunction with the rest of my mayoral colleagues throughout Indiana is go after these next elections in November, go to the new governor, go to the newly constituted general assembly, and ask for more local control over those issues.” * * *

“Some common sense gun approaches are important,” said Hamilton, “and as a mayor my people want me to do something ahead of time, not just wait until something terrible happens to respond. The problem is in Indiana I’m not allowed to do anything about that ahead of time.

“We’re not against hunters, we’re not against firearms for self-protection, and reasonably controlled, we’re not against the Second Amendment. We are against being held hostage to this crazy radical idea that you can’t make modest and common sense controls over things that kill 30,000 people a year.”

Medeira said “common sense” gun restrictions are in the eye of the beholder.

“Its very hard precisely to define what ‘common sense’ means because there are some crazy situations that come up in law that place one person’s Right to Carry against another person’s right to be safe.

“If the state preemption law were to be made less restrictive, or lifted entirely, I think you would have mayors place additional limits on gun dealers in their jurisdictions that say, ‘If we’re going to have a gun show, we’re going to have all transactions take place through background checks, we’re going to have domestic violence laws in this area that apply not only to married couples as they do statewide but also to couples that are dating and dating violence,’ and that’s a loophole that can be closed.” * * *

Hamilton said local authorities need, “regular people speaking up to representatives and saying, ‘This is just crazy, do you really want people with guns walking around a swimming pool full of kids and parents laying around putting sunscreen on? Do you really want a machinegun with bullets attached riding down the middle of Main Street in a July Fourth parade?’”

Posted by Marcia Oddi on Monday, August 22, 2016
Posted to Indiana Government

Ind. Gov't. - IURC Nominating Committee Announces Nominees

Updating this ILB post from July 25th, the Governor's Office announced Aug. 19:

Indianapolis – The Indiana Utility Regulatory Commission Nominating Committee announced today the names of the three nominees they are submitting to Governor Mike Pence for appointment to the Indiana Utility Regulatory Commission. Those three nominees are:
  • Sarah Freeman

  • Jeffrey Golc

  • Timothy Jeffers
The Nominating Committee has nominated these three candidates to fill the 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. Governor Pence will select one of the three nominees to serve the remainder of Mays-Medley’s term. Commissioner Mays-Medley’s term expires December 31, 2017. * * *

The Nominating Committee interviewed 9 candidates for the vacancy. Information regarding all applicants can be obtained from the Governor’s Office or online.

“On behalf of the IURC Nominating Committee, I am pleased to forward the names of these three nominees to Governor Pence,” said Allen Paul, Chair of the IURC Nominating Committee. “The Committee was impressed by the quality of the applications we received. This was not an easy decision.”

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

[More] Details from a story by John Russell of the IBJ:
— Tim Jeffers, director of business development at CSO Architects and former chief of staff to then-Indiana House Speaker John Gregg.

— Sarah Freeman, senior staff attorney at the Indiana Legislative Services Agency and former Indiana deputy attorney general.

— Jeffrey L. Golc, former vice president at Harrison College, former spokesman for the Hoosier Lottery and former IURC commissioner.

Posted by Marcia Oddi on Monday, August 22, 2016
Posted to Indiana Government

Ind. Courts - Nominations now open for the 2nd District attorney member of the Judicial Nominating Commission

Last week I, along with all the other members of the Indiana bar residing in the 2nd Judicial District who are in good standing, received this "Notice of Election" from the Clerk of the Indiana Courts.

Essentially it says that nominations are now open for the attorney member who will represent the 2nd District on the Judicial Nominating Commission [JNC]/Commission on Judicial Qualifications for the next three years. Nominations, including a petition signed by 30 attorneys who reside in the 2nd Judicial District, are due by Sept. 19, 2016.

The coming three years are especially important. At least one Supreme Court and probably two or more Court of Appeals vacancies are anticipated.

In addition, a vote on who will be the Chief Justice will occur near the end of the three years. See this Aug. 5, 2014 post by Prof. Schumm, headed "Choosing the Next Chief Justice of Indiana: This is Huge!"

Art. 7, Sec. 3 of the Indiana Constitution: "The Chief Justice of the State shall be selected by the judicial nominating commission from the members of the Supreme Court and he [sic.] shall retain that office for a period of five years, subject to reappointment in the same manner ..."

Here is a newly updated table of the attorney members of the JNC from 1972, when the Judiciary Law of 1972 took effect), to date. The shaded names are repeats (you cannot immediately succeed yourself). Much can be revealed by studying this table.

This post from Sept. 28, 2010 links to background on the JNC. Of particular interest is this Res Gestae article I wrote, "Analysis of another effort to alter the Indiana judicial selection and retention process," that appeared in the Mar. 2006 issue. It explains (p. 5) that originally the three attorney members of the Commission were elected for 6-year terms, and all three members' terms began on the same date. This changed by statute in 1986.

Posted by Marcia Oddi on Monday, August 22, 2016
Posted to Indiana Courts

Environment - More on: East Chicago housing project built in 1972 on lead-contaminated soil; residents now being relocated ...

Updating this August 16th ILB post, the Indianapolis Star today has this AP story by Jason Keyser, headed "Lead pollution forcing 1,000 Indiana residents from homes."

Posted by Marcia Oddi on Monday, August 22, 2016
Posted to Environment

Ind. Decisions - Transfer list for week ending August 19, 2016

There were no transfer dispositions last week, and hence, there is no transfer
list.

Posted by Marcia Oddi on Monday, August 22, 2016
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week 8/22/16):

Next week's oral arguments before the Supreme Court (week of 8/29/16):

Wednesday, August 31

Thursday, September 1

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 8/22/16):

Next week's oral arguments before the Court of Appeals (week of 8/29/16):

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, August 22, 2016
Posted to Upcoming Oral Arguments

Friday, August 19, 2016

Ind. Decisions - 7th Circuit decides Wis. union case today involving inflatable rats

ILB: This opinion is remarkable for several reasons ...

In Construction and General Labor v. Town of Grand Chute (ED Wis.), a 27-page, 2-1 opinion including many full-color photos of the inflatable rats, and with Chief Judge Wood and Judges Easterbrook and Posner all on the panel, Judge EASTERBROOK'S opinion for the majority begins:

Rats. This case is about rats. Giant, inflatable rats, which unions use to demonstrate their unhappiness with employers that do not pay union‐scale wages. Cats too—inflatable fat cats, wearing business suits and pinkie rings, strangling workers. Here is what they look like, as deployed during a labor dispute in the Town of Grand Chute, Wisconsin: [ILB: see opinion for the photos] As the pictures show, the rat and the cat are staked to the ground, to prevent the wind from blowing them away. Those stakes led to this litigation. * * *

[p. 10] POSNER, Circuit Judge, concurring and dissenting. I agree that the judgment in favor of the defendant (the town) must be reversed, but I disagree that the case should be remand‐ ed. The balance of evidence is clear enough to justify our de‐ ciding that the union’s constitutional right of free speech was violated. * * *

[p. 20] I’ll scandalize some readers, who think it improper for a judge to stray outside the official trial record, by sharing with them my experience with a roadside union rat. I some‐ times drive to work on a major divided highway called Mar‐ tin Luther King Drive, which runs north from Hyde Park, where I live, south of downtown Chicago, to downtown. As one nears the downtown on MLK Drive one sees (or rather saw, because during the long gestation of this case the rat— alas!—was removed, whether because the labor dispute be‐ tween union and employer was resolved or for some other reason), on the east side of the street, a large inflated rubber rat named Drape (short for Draper and Kramer, the employ‐ er with whom the union that put up that rat was fighting). Every time I drove past the rat I glanced at it, as it was the only noteworthy sight on my route. This glance never caused me to swerve, crash, crouch in my seat, avert my eyes, hit a pedestrian, or cause other mayhem. Nor did I ever observe an accident, even a swerve, in the vicinity of the rat. I saw no driver, or pedestrian, upon glimpsing the rat flee in terror. And yet this rat, like its Grand Chute cousin, was close to a major street—in fact much closer than the Grand Chute rat was to a major street; for while the Grand Chute rat was 70 feet from the highway, my Chicago rat was only about three feet from MLK Drive. I took a close‐up photo of the rat, and another photo of it from across the street. Here are the two photos: [ILB: see opinion for J.Posner's photos]

ILB: Here is one of J. Posner's photos. from p. 21 of the opinion, introduced by: "my Chicago rat was only about three feet from MLK Drive. I took a close‐up photo of the rat,".

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

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

For publication opinions today (3):

In Amir Basic and Gerard Arthus v. Numan A. Amouri, Mohamad H. Mohajeri, Mohammad Aslam Chaudhry, Adnan Khan, Imdad Zackariya, Mohammad Sirajuddin, Sarah Shaikh, Aijaz Shaikh, Ismail Al-Ani, et al., a 12page opinion with 2 pro se appellants, Judge Crone writes:

Amir Basic and Gerard Arthus (collectively “Appellants”) appeal the dismissal of their claims against the Imam of the Islamic Society of Michiana, Inc. (“ISM”), as well as members of the boards of directors and trustees, Numan A. Amouri, Mohamad H. Mohajeri, Mohammad Aslam Chaudhry ... (collectively “Appellees”), stemming from Basic’s removal from the ISM board of directors. As best we can discern, Appellants challenge the trial court’s findings that it lacked subject matter jurisdiction and that Appellants lacked standing as well as its decision to quash certain subpoenas. Appellees request damages, including appellate attorney’s fees, pursuant to Indiana Appellate Rule 66(E). Finding that Appellants have violated numerous provisions of Appellate Rule 46, including the failure to present cogent argument, we conclude that they have waived all issues for appeal. And finding that Appellants acted in procedural bad faith, we grant Appellees request for damages. Therefore, we affirm and remand for a determination of these damages. * * *

In sum, Appellants were required to follow the rules of appellate procedure and failed to comply. Their appendix is defective, and their brief is practically devoid of discernible legal argument. Instead, the brief is laced with unseemly invective that permeates its entire fifty-eight pages. Their argumentative facts section and blistering handwritten remarks on the face of the appealed order reveal a flagrant disregard for the rules of appellate procedure. In other words, Appellants have demonstrated procedural bad faith. Based on the foregoing, we conclude that an award of damages, including appellate attorney’s fees, is appropriate in this case and grant Appellees’ request for such damages. See Srivastava, 779 N.E.2d at 61 (awarding attorney’s fees based on pro se litigant’s bad faith). Accordingly, we affirm and remand for a determination of Appellees’ damages pursuant to Appellate Rule 66(E).

In Joshua Perry Cruse v. C.C., a 12page, 2-1 opinion, Judge Baker writes:
Joshua Cruse appeals the protective order entered by the trial court preventing him from having contact with his ex-wife, C.C., except to communicate regarding their children. Cruse argues there is insufficient evidence supporting the protective order. We agree, and reverse. * * *

Vaidik, C.J., concurs. Najam, J., dissents with separate opinion. [that begins, on p. 7] I respectfully dissent. C.C. presented sufficient evidence to show that the Order of Protection was warranted because Cruse had placed C.C. in fear of physical harm and also had committed stalking. In particular, the evidence and the reasonable inferences from the evidence show that Cruse engaged in threatening behavior directed at C.C. and repeatedly harassed C.C. such that she reasonably and actually felt intimidated by his conduct. While the majority is correct that some of C.C.’s testimony referred to Cruse’s conduct towards her friends and colleagues, C.C. was present for each of the incidents, and a reasonable fact-finder could conclude that Cruse’s conduct was directed at her.

In Jessi Apollos v. State of Indiana, a 6-page opinion, Judge Baker writes:
Jessi Apollos appeals her conviction for Criminal Trespass,1 a class A misdemeanor. Apollos argues that there is insufficient evidence supporting the conviction. We agree, and reverse and remand with instructions to vacate the conviction. * * *

The State need not disprove every conceivable contractual interest, but it must disprove contractual interests reasonably apparent from the circumstances under which the trespass allegedly occurred. Lyles v. State, 970 N.E.2d 140, 143 (Ind. 2012). A “contractual interest” is the right to be present on another’s property, arising from an agreement between two parties that creates an obligation to do or not do a particular thing. Semenick v. State, 977 N.E.2d 7, 10 (Ind. Ct. App. 2012). A lease need not be in writing to be a binding agreement. Barber v. Echo Lake Mobile Home Cmty., 759 N.E.2d 253, 255 (Ind. Ct. App. 2001).

In this case, both Apollos and Francois understood that an agreement existed, pursuant to which Apollos would live at Francois’s residence in exchange for rent and/or childcare services for Francois’s daughter. ... The precise terms may not have been agreed upon, but both parties understood that an agreement existed. Even if Apollos had breached that agreement by failing to make a rent payment, the lease—and Apollos’s contractual interest in the property—did not automatically terminate. * * *

Because it is undisputed that Apollos and Francois both understood that they had agreed that Apollos would live in Francois’ residence in exchange for money and/or childcare services, we find that the evidence does not establish beyond a reasonable doubt that Apollos did not have a contractual interest in the property. In other words, we find that the State failed to disprove contractual interests reasonably apparent from the circumstances under which the trespass allegedly occurred. Consequently, we reverse the criminal trespass conviction for insufficient evidence.

NFP civil decisions today (0):

NFP criminal decisions today (3):

Quintin Mayweather-Brown v. State of Indiana (mem. dec.)

O'Shun Untha Grace v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Friday, August 19, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Appeals panel affirms $32.5M judgment for I-65 crash victim"

Yesterday's Court of Appeals opinion in J.B. Hunt Transport, Inc., and Terry L. Brown, Jr. v. The Guardianship of Kristen Zak (ILB summary here) is the subject of this story today by Dan Carden in the NWI Times that begins:

The Indiana Court of Appeals on Thursday affirmed a $32.5 million judgment awarded to the guardian of a Dyer woman who was partially paralyzed in a 2006 crash on Interstate 65 in Jasper County.

Kristen Zak was the passenger in a vehicle driven by her then-fiance, Matthew Robinson, that slid off the highway on a snowy January night and struck a semitrailer that had jackknifed in the median an hour earlier.

Posted by Marcia Oddi on Friday, August 19, 2016
Posted to Ind. App.Ct. Decisions

Thursday, August 18, 2016

Ind. Decisions - "Ind. Court Says Warrant Needed to Get Cell Tower Data"

Marcus Zanders v. State of Indiana, a 2-1, August 4th Court of Appeals opinion (ILB summary here, 3rd case) is the subject of an Aug. 17th Bloomberg Law article by Lance J. Rogers. Some quotes from the long story:

The decision is significant because it adds to a growing split among state and federal courts.

The third-party doctrine doesn't apply here because a mobile phone customer doesn't hand over location data to the provider—voluntarily or otherwise—and therefore doesn't assume the risk that the company will turn the information over to the police, the court said in an opinion by Judge Patricia A. Riley.

“This decision adds to the split on this issue and improves the odds that the Supreme Court will grant cert. on the next petition that comes before it,” John Wesley Hall, a Little Rock, Ark., criminal defense attorney, told Bloomberg BNA. * * *

The state argued that the police didn't violate Marcus Zanders's constitutional rights when they seized cell site location data linking his mobile phone to a crime scene because citizens have no reasonable expectation of privacy in the business records kept by a third party.

Prosecutors pointed to United States v. Miller, 425 U.S. 435 (1976), and Smith v. Maryland, 442 U.S. 735 (1979), which held that investigators don't need a search warrant to obtain a suspect's bank records or a phone company's records of the numbers dialed by land-line phones. * * *

[T]he Indiana court said that the third-party doctrine has limited utility in the digital age given the proliferation of data that is unwittingly revealed to third parties.

“The extent of information that we expose to third parties has increased by orders of magnitude since the Supreme Court decided Miller and Smith,” the court said.

“To now apply a rigorous application of Miller and Smith, as the State advocates, would create a rule that would preclude virtually any Fourth Amendment challenge against government inspection of third-party records,” the court said.

Posted by Marcia Oddi on Thursday, August 18, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "ACLU uses RFRA to sue jail on behalf of Muslim inmate" [Updated at 1:47]

Madeline Buckley of the Indianapolis Star has the story here. Some quotes:

The Indiana American Civil Liberties Union is suing the Boone County Sheriff's office, accusing the jail staff of refusing to serve a Muslim inmate a Halal diet.

The lawsuit, filed Wednesday on behalf of inmate Gannon Thomas, accuses officials at the Boone County Jail of violating the man's First Amendment rights, as well as his rights under Indiana's Religious Freedom and Restoration Act. * * *

In this lawsuit, though, the ACLU is employing the law to protect a religious minority from alleged discrimination from the government. Indiana's law says the government cannot intrude on a person's religious liberty unless it can prove a compelling interest in imposing that burden and do so in the least restrictive way.

[Updated at 1:47 pm] Here is the complaint. The suit is in federal court and invokes both the First Amendment and Indiana's RFRA.

Posted by Marcia Oddi on Thursday, August 18, 2016
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues disciplinary order suspending Chesterton attorney

In In the Matter of: Darcie L. Campanella, a 3-page, 5-0 order filed Aug. 17, the Court:

... suspends Respondent from the practice of law in this state for a period of not less than 30 days, without automatic reinstatement, beginning September 28, 2016.

Posted by Marcia Oddi on Thursday, August 18, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (2):

In J.B. Hunt Transport, Inc., and Terry L. Brown, Jr. v. The Guardianship of Kristen Zak, a 32-page opinion, Judge Baker writes:

In January 2006, Terry Brown was driving a semi tractor-trailer for his employer. While traveling on I-65 in snowy conditions, Brown lost control of the semi, which ended up jackknifed and disabled in the median. An hour later, a vehicle in which Kristen Zak was a passenger slid off of the same part of I-65 and crashed into Brown’s semi in the median. As a result of the accident, Zak suffered permanent, serious brain damage. Her guardians filed a complaint alleging negligence on the part of Brown and his employer.

J.B. Hunt Transport, Inc. (Hunt) and Terry L. Brown, Jr. (Brown) (collectively, the appellants) appeal following a jury verdict in favor of the Guardianship of Kristen Zak (Guardianship) on Guardianship’s negligence claim. * * *

We find that there were multiple questions of fact that needed to be answered by a jury, and we find no basis on which to second-guess the jury’s answers. We also find no questions of law warranting reversal. Therefore, we affirm.

In In the Matter of: A.H. (Minor Child), Child in Need of Services, and A.H. (Mother) v. The Ind. Dept. of Child Services , a 12-page opinion, Judge Baker writes:
When a parent is unwilling or unable to provide help to his or her child, Indiana’s Department of Child Services can seek the “coercive intervention” of a court to compel that parent to provide help through a Child in Need of Services (CHINS) adjudication, but this intrusion of the coercive power of the State into family life is “reserved for families who cannot meet those needs without coercion—not those who merely have difficulty doing so.” In re S.D., 2 N.E.3d 1283, 1285 (Ind. 2014). Nor is that power appropriately applied to a parent who seeks reasonable care for her traumatized child, merely because that care is ultimately unsuccessful through no fault of the parent.

A.H. (Mother) appeals the juvenile court’s order finding her daughter, also initialed A.H. (Child), to be a CHINS. Mother argues that the evidence is insufficient to support the CHINS adjudication. Finding no evidence that the coercive power of the court is necessary to ensure Child receives care, we reverse.

NFP civil decisions today (1):

Hamilton County Convention Center, LLC v. Lee R. Johnson (mem. dec.)

NFP criminal decisions today (1):

Tasha Subili v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, August 18, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on: Hamilton Co. judge" to hear conservatives' lawsuit challenging RFRA fix" [Updated almost immediately]

Updating this ILB post from Aug. 15th, about the lawsuit challenging the RFRA "fix" and the ordinances that the cities of Carmel and Indianapolis passed pursuant to the "fix", where the ILB noted:

Interestingly, although the Attorney General must defend in any lawsuit that challenges the constitutionality of state law, neither the AG nor the State has been made a party to this lawsuit.
This ILB post from Dec. 10, 2015 quoted from a law journal by Attorney General Zoeller that included:
In short, an attorney general owes the state and its citizens, as sovereign, a duty to defend its statutes against constitutional attack except when controlling precedent so overwhelmingly shows that the statute is unconstitutional that no good-faith argument can be made in its defense. To exercise discretion more broadly, and selectively to pick and choose which statutes to defend [ILB emphasis], only erodes the rule of law.
As of this morning, a check of the docket in the case, Indiana Family Institute, et al v. City of Carmel, et al (29D01-1512-MI-010207,) reveals no efforts by the State of Indiana to intervene in the case. BTW, Judge Nation has rescheduled a motion to dismiss to Nov. 2nd.

What has the Attorney General done in other cases involving the constitutionality of a statute?

One example is Henderson et al. v. Adams et al. and Allen et al. v. Adams et al, where federal Judge Tanya Walton Pratt ultimately "found that two of Indiana’s statutes involving parental rights violate the equal protection and due process clauses of the 14th Amendment, meaning those statutes cannot be enforced."

The Attorney General's office was involved in that lawsuit. A June 30, 2016 news release, headed "Attorney General’s Office’s statement on ruling in birth certificate lawsuit case," includes this statement:

“Whenever any plaintiff challenges the constitutionality of a statute that the people’s elected representatives in the Legislature have passed, the Office of the Attorney General has an obligation to defend that statute in court. We will confer with our state government clients to ascertain the impact of the court’s ruling reinterpreting parental rights, and will determine next steps by the appropriate deadlines,” Indiana Attorney General Greg Zoeller said.
[Updated almost immediately] OKAY, I knew there was a statute, and I've finally located it, via this post from Feb. 10, 2010, headed "Bill to significantly expand authority of Attorney General up for passage today in the Senate."

The bill passed, and is now found at IC 34-33.1-1, "Authority of the AG to Intervene in Cases Challenging the Constitutionality of a Statute, Ordinance, or Franchise," where the State is not a party.

Posted by Marcia Oddi on Thursday, August 18, 2016
Posted to Indiana Courts

Ind. Gov't. - "Evansville Police Dept. backtracks on body camera viewing fee"

Updating this ILB post from yesterday, which quoted a note from an ILB reader ("I believe charging $37.50 per hour to view the videos would violate IC 5-14-3-8(b)"), Shannon Hall of the Evansville Courier & Press reports today [ILB emphasis]:

A day after announcing increased fees for the public to obtain and view body camera footage, Evansville police are backtracking on at least one of the charges.

Assistant Police Chief Chris Pugh told the Courier & Press Wednesday night that the EPD will not charge an hourly rate of $37.50 for members of the public to view body camera footage. The change comes one day after police announced a new online request form that detailed the costs.

Pugh said the decision was made after the department spoke with its attorneys.

On Wednesday afternoon, the Indiana Law Blog updated a post that claimed the hourly fee, first outlined in the form, violated state law regarding access to public records. Under state law, public agencies cannot charge a fee for citizens to inspect public records.

Posted by Marcia Oddi on Thursday, August 18, 2016
Posted to Indiana Government

Ind. Courts - "Floyd County reaches settlement with David Camm" [Updated]

Adding to a very long list of ILB posts about David Camm, dating back to 2004, Chris Morris of the New Albany News & Tribune reports today in a story that begins [ILB emphasis]:

A settlement conference was held Friday and the two sides agreed on an amount. Camm will receive $450,000 from a lawsuit filed against the county and several individuals in October of 2014 alleging wrongdoing against him after he was charged and convicted twice for killing his wife and two small children at their Georgetown home in 2000. Camm was convicted in Floyd County in 2002, appealed the conviction only to be convicted again in 2006, a verdict that was later overturned. He was acquitted in 2013 after a third and final trial.

Several plaintiffs were listed in the lawsuit, and Friday's agreement "settles everything with Floyd County in the case," according to Floyd County Attorney Rick Fox. That includes the county, and investigators Jacqueline Vaught, Anthony Toran, Mark Henderson, Emily Fessel Miller and Barry Wayne Kessinger.

Camm's suit against the state of Indiana, which includes former Floyd County Prosecutor Stan Faith and current prosecutor Keith Henderson, along with several state police investigators and Englert Forensic Consultants LLC, is still pending. The "global amount" of the lawsuit was for $30 million. Of that, Floyd County settled for $450,000.

"The primary bad actors are still involved in the lawsuit," said Garry R. Adams with Clay Daniel Walton & Adams PLC in Louisville, who represented Camm.

Fox said four of the county's insurance carriers recommended the county approve the $450,000 settlement. It will only cost Floyd County its $5,000 deductible, Fox said. * * *

The settlement conference lasted one day and the agreement was signed through the United States District Court Southern District in New Albany.

[Updated at 10:04 am] Here is Madeleine Winer's story in the Evansville C&P.

Posted by Marcia Oddi on Thursday, August 18, 2016
Posted to Indiana Courts

Wednesday, August 17, 2016

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

In USA v. Daniel Haslam (ND Ind., DeGuilio), a 13-page opinion, Judge Sykes writes:

Daniel Haslam pleaded guilty under a written plea agreement to manufacturing methamphetamine, possessing unregistered silencers, and possessing a firearm in connection with a drug offense . His presentence report included as relevant conduct an incident in which Has lam held a woman hostage in his apartment on the mistaken belief that she was an undercover police officer. 2 No. 14- 2641 Haslam thinks the government breached the plea agreement by giving this hostage-taking information to the probation office and the court ; he moved to with draw his pleas. The district judge denied the motion and impose d a sentence of 181 months in prison.

Haslam appealed , challenging the denial of his plea - withdrawal motion. We affirm. Haslam’s plea agreement did not limit the information the government could give the court about the offense or his background . To the contrary , the agreement explicitly reserved the government’s right to fully inform the court , s o there was no breach. And the judge properly rejected Haslam ’s alternative claim that he pleaded guilty unknowing ly based on a misunderstanding that the plea agreement contained such a limitation.

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

Ind. Gov't. - More on "Citing new law, Evansville police increase costs to view, obtain body camera footage"

Updating the ILB post from earlier today that quoted a story in the Evansville Courier & Press, a reader points to the quote in the story:

...Capt. Andy Chandler said people who want to view video before or instead of copying it will pay $37.50 per hour to watch the recording at the police station.
and writes:
I believe charging $37.50 per hour to view the videos would violate IC 5-14-3-8(b) [see p. 31 of law]:
(b) Except as provided in this section, a public agency may not charge any fee under this chapter:
(1) to inspect a public record; or
(2) to search for, examine, or review a record to determine whether the record may be disclosed.
The only exception for charging a fee for inspection is (i) which only applies to requests by governmental agencies.
The reader also points out that the Evansville Police information page about "body worn camera requests" says no fee will be charged "for the actual inspection."

Posted by Marcia Oddi on Wednesday, August 17, 2016
Posted to Indiana Government

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

For publication opinions today (1):

In Robert Weathers v. State of Indiana, a 19-page opinion, Judge Bradford writes:

On April 15, 2015, a Marion County Sheriff’s Deputy initiated a traffic stop after observing that the expiration date on a vehicle’s license plate was not visible. The vehicle in question was being driven by Appellant-Defendant Robert Weathers. During the traffic stop, it was discovered that Weathers did not have a valid driver’s license. Weathers was placed under arrest for driving without a license. The deputy eventually decided to impound the vehicle in question after Weathers failed to find someone to retrieve the vehicle. The deputy then completed a warrantless inventory search of the vehicle, during which the deputy recovered a handgun.

The next day, Weathers was charged with Class A misdemeanor carrying a handgun without a license and Class A misdemeanor driving while suspended. The handgun charge was subsequently elevated to a Level 5 felony by virtue of Weathers’s prior felony conviction. The handgun was admitted into evidence at trial, over Weathers’s objection. Weathers was subsequently found guilty of both Level 5 carrying a handgun without a license and Class A misdemeanor driving while suspended.

On appeal, Weathers contends that the trial court abused its discretion in admitting the handgun into evidence, arguing that the warrantless inventory search conducted by the deputy was unreasonable and thus violated his rights under the Fourth Amendment to the United States Constitution. Weathers alternatively contends that even if the handgun was properly admitted into evidence, the evidence was insufficient to sustain his Level 5 felony conviction.

Concluding that the trial court did not abuse its discretion in admitting the handgun at trial and that the evidence is sufficient to sustain Weathers’s conviction for Level 5 felony possession of a handgun without a license, we affirm.

NFP civil decisions today (3):

Scott Haywood and Carin Haywood (AKA Carin Price) DBA Haywood's Auto Sales & Service v. Circle Distributing, Inc. (mem. dec.)

Edward Niksich v. Dr. Malak Hermina, et al. (mem. dec.)

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

NFP criminal decisions today (2):

Alvin C. Putman v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Wednesday, August 17, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court oral argument now set in ESPN case

Oral argument before the Supreme Court will be Tuesday, September 13, 2016 at 9:45 am.

Transfer was granted the end of June in the case, ESPN, Inc., et al. v. University of Notre Dame Police Department, about which much has been written.

Posted by Marcia Oddi on Wednesday, August 17, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Citing new law, Evansville police increase costs to view, obtain body camera footage"

Tori Fater reports today in the Evansville Courier & Press in a long story that begins:

The Evansville Police Department on Tuesday released a new request form that lays out the cost to view and copy footage from police cameras, as well as how to access the video.

People who want to access police body camera videos will have to pay $150 per copy of a video recording, according to the form, which also states "other charges may apply to cover direct costs of reproducing records ... and for viewing records." Evansville Police Department spokesman Capt. Andy Chandler said people who want to view video before or instead of copying it will pay $37.50 per hour to watch the recording at the police station.

The $150 price tag is the maximum charge allowed by a state law in effect this year that regulates access to and storage of police camera videos, Chandler said. People will have to pay postal charges as well if they do not pick up the video in person.

Posted by Marcia Oddi on Wednesday, August 17, 2016
Posted to Indiana Government

Ind. Courts - "Trial set to fight eminent domain" in Fort Wayne

Rebecca S. Green reports today in the Fort Wayne Journal Gazette:

The owners of riverfront properties targeted by the Fort Wayne Parks Department for eminent domain are putting up a fight.

And it appears they have a case. A judge has scheduled a trial for mid-November.

In June, the city sued Gregory Cambray, Red Bird Properties LP and Burkhart Advertising Inc. in Allen County Circuit Court, seeking condemnation of three buildings just northwest of downtown, along St. Marys River. * * *

The planned development would be the launching point for the proposed multimillion-dollar public-private partnership to develop the city’s riverfronts. * * *

A hearing on the city’s lawsuit was scheduled for Tuesday before Allen Circuit Court Judge Thomas Felts, but by the end of it, the case was scheduled for a two-day trial in November.

At issue is whether the city actually plans to put a park in place of the buildings.

Jeff Raff, the attorney for Cambray, argued in court documents that the city wanted to take the properties without going through the redevelopment process, so it enlisted the parks board to make the claim.

The property was not available to the Riverfront Improvement Project because it was not blighted, having housed businesses for more than 50 years, according to court documents.

But the parks department can take the property under eminent domain and turn it into a park, according to court documents.

“City officials and others say that the property is the center of the Riverfront Improvement Project and that a promenade is going to be built there,” Raff wrote in Cambray’s objections to the proceedings. “The Park Board says it is going to build a park. What’s it going to be?

“It’s going to be what the City wants and that’s a promenade to provide access to shopping and dining to advance downtown development. That is not a park purpose.”

The property owners argue they did not accept the city’s offers to buy the properties because those offers did not include the costs of relocating the businesses, and were merely for the value of the properties themselves.

The city responded to the property owners by asking Felts to reject the request for a jury trial, claiming the case is not at the stage where it would be appropriate for a jury trial.

Felts took the city’s argument under advisement and scheduled the trial for Nov. 8-9.

Posted by Marcia Oddi on Wednesday, August 17, 2016
Posted to Indiana Courts

Law - WSJ: The ABA Overrules the First Amendment (or not)

The $$$ WSJ has a commentary today headed "The ABA Overrules the First Amendment: The legal trade association adopts a rule to regulate lawyers’ speech." A sample:

At its San Francisco convention this month, the ABA adopted a rule regulating things from lawyers’ speech to the access to their office restrooms. Even before state courts adopt these changes, law schools must teach this rule and bar exams must test on it.

Known as 8.4(g), the rule provides that it is “professional misconduct” to engage in discrimination based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” The rule specifies that discrimination includes “verbal” conduct that “manifests bias.”

If lawyers do not follow this rule, they risk discipline (e.g., disbarment, or suspension from the practice of law). The ABA report explaining the rule quotes past ABA President Paulette Brown, who says lawyers are “responsible for making our society better,” and because of our “power,” we “are the standard by which all should aspire.”

The author is Ron Rotunda, "a professor at Chapman University’s Fowler School of Law."

Posted by Marcia Oddi on Wednesday, August 17, 2016
Posted to General Law Related

Law - "Is projecting a message onto the wall of a building a trespass? A nuisance?"

Eugene Volokh of The Volokh Conspiracy has this interesting post today. It begins:

You’re running a restaurant — or maybe a mosque or an abortion clinic. Union members stand on a public sidewalk outside the restaurant and project light onto your wall that causes a message to appear on your wall: It says the restaurant got cited for health code violations. Or it says “this business hires scabs.” Or anti-Islam protesters project a Muhammad cartoon on the wall, or antiabortion protesters project an image of an aborted fetus. Can you stop this by going to court and getting an injunction, on the theory that the projection onto what is, after all, your wall is a trespass?

Posted by Marcia Oddi on Wednesday, August 17, 2016
Posted to General Law Related

Ind. Gov't. - "State issues Dunes pavilion alcohol sales license"

Dan Carden reports in the NWI Times:

INDIANAPOLIS — The Indiana Alcohol and Tobacco Commission unanimously agreed Tuesday to issue a license to sell beer, wine and liquor at a renovated Indiana Dunes State Park pavilion.

The new license was awarded to the Indiana Department of Natural Resources in accordance with a law signed in March by Republican Gov. Mike Pence mandating the commission issue a "state park" alcohol permit for the Dunes pavilion if the DNR requested one.

"They did comply with everything we've asked for in the application process and at this point they are complete," said Commission Chairman David Cook moments before the permit approval vote.

House Enrolled Act 1386 explicitly removed local participation from the state park alcohol licensing decision after strident opposition last summer prompted the Porter County Alcoholic Beverage Commission to deny a permit to Pavilion Partners, the company chosen by the DNR to renovate and operate bars and restaurants in the historic Lake Michigan pavilion with plans to add an adjacent banquet center.

That didn't stop Norman Hellmers, of Valparaiso, from writing to the commission on behalf of Dunes Action!, a group opposed to alcohol in the park, asking the permit be denied to protect the "sacred rights" of Hoosiers to safe, non-commercial state parks.

"The changes to the Indiana Code were forced through the General Assembly to satisfy personal needs unrelated to what is best for the citizens of the state," Hellmers said. * * *

The new law allows Pavilion Partners to use the DNR permit to sell alcohol at the Dunes pavilion, which is expected to open next year.

Alcohol opponents still can try to persuade the Indiana Natural Resources Commission to reject final adoption of its preliminarily approved rule allowing alcohol consumption in and near the pavilion, but not on the beach or elsewhere in Indiana Dunes State Park.

They are unlikely to succeed, however, because a commission majority includes either state employees working for the governor or citizens selected by him, and he already has signaled his approval for the pavilion project, including alcohol availability.

The ILB has a very long list of earlier posts on the Dunes pavilion issues, dating back a decade.

The Gary Post Tribune
has this story by Amy Lavalley - some quotes:
Indiana Dunes State Park is the only park in the state system with an outright ban on alcohol, which DNR Director Cameron Clark has said was put into place in 1990 because rival gangs from Chicago were coming to the beach to drink and fight.

DNR officials have been adamant that even with a liquor permit, alcohol would not be allowed on the beach or anywhere at the park but the pavilion, 100 feet from the pavilion, and 100 feet from its parking lot, as allowed under state statute.

ILB: Note this photo, included with the P-T story, that was taken from the pavilion and gives an indication of its location with respect to the beach and water.

Posted by Marcia Oddi on Wednesday, August 17, 2016
Posted to Indiana Government

Ind. Gov't. - More on "Rogers Group (Americus) quarry mired in legal wranglings"

Updating this ILB post from June 8th, the most recent in a long list of ILB posts about the issue, the Lafayette Journal Courier has a report today by Jeremy Ervin headed "Quarry fight may go to Indiana Supreme Court." Some quotes:

LAFAYETTE, Ind. — Both sides of the legal struggle surrounding a proposed quarry in Americus are trying to take things up with the Indiana Supreme Court.

Attorneys representing Rogers Group Inc. and Tippecanoe County have filed briefs with the Indiana Supreme Court, according to Robert Reiling of Reiling Teder & Schrier, which represents Tippecanoe County in the case.

Rogers Group is the company behind a proposed quarry in Americus that ran into trouble after a backlash from the community. Residents founded the Americus Area Community Coalition and petitioned local officials to fight the quarry.

Here is the March 28th COA opinion.

Here is the case's appellate docket. It includes links to the petition to transfer, along with appellee's response and brief in support.

Posted by Marcia Oddi on Wednesday, August 17, 2016
Posted to Indiana Government

Tuesday, August 16, 2016

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

In Great West Casualty Company v. Pamela Robbins (SD Ind., Lawrence), a 24-page opinion, Judge Kanne writes:

In January 2011, Defendant Linda K. Phillips, an employee of Hoker Trucking, LLC, was driving a semi‐truck that struck a vehicle driven by Mike Douglas Robbins in Indiana. Robbins died as a result of the injuries he sustained in the accident. At the time of the accident, the semitruck driven by Phillips was pulling a trailer Hoker borrowed from Lakeville Motor Express, Inc. Lakeville had purchased an insurance policy from Plaintiff Great West Casualty Company to cover the trailer.

This case is not about the liability of Phillips or Hoker for the accident. That action was filed by Robbins’s estate in an Indiana state court, and Phillips and Hoker were indemnified by Hoker’s insurance policy. To preempt a possible claim against Lakeville’s insurance policy, Great West filed this complaint for declaratory judgment against Hoker, Phillips, and Defendant Pamela Robbins, as administratrix of Mike Douglas Robbins’s estate, amongst other defendants, seeking an order stating that it did not have to indemnify Hoker and Phillips for any liability in connection with the accident. After Robbins and Great West filed cross‐motions for summary judgment, the district court granted summary judgment in favor of Great West and denied Robbins’s motion. Finding no error with the district court’s decision, we affirm.

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

Ind. Gov't. - Interviews with Indiana attorney general candidates

Suzanne Spenser, WSBT 22 anchor, has interviews today with:

Posted by Marcia Oddi on Tuesday, August 16, 2016
Posted to Indiana Government

Ind. Decisions - Supreme Court issues disciplinary order suspending a second Indianapolis attorney this week

Filed on Aug. 12, the Supreme Court has now posted In the Matter of: Kenneth C. Kern, a 2-page, 4-1 "Published Order Finding Misconduct and Imposing Discipline." The facts section spells out three instances of professional misconduct, the continues:

Respondent has prior discipline. Matter of Kern, 655 N.E.2d 339 (Ind. 1995); Matter of Kern, 555 N.E.2d 479 (Ind. 1990). Respondent also has been the subject of three recent show cause proceedings for failing to cooperate with disciplinary investigations. * * *

Discipline: For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than one year, without automatic reinstatement, beginning September 22, 2016. * * *

All Justices concur, except David, J., who votes to disbar Respondent.

Posted by Marcia Oddi on Tuesday, August 16, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, re termination of parental rights

In In Re the Involuntary Termination of the Parent-Child Relationship of R.S., (Minor Child), and R.S. (Father) v. Marion County Department of Child Services and Child Advocates, Inc., an 11-page, 5-0 opinion, Justice David writes:

This case involves the fundamental right of a parent to the care, custody, and control of his or her child. Because this relationship should be severed only when all reasonable efforts to maintain the relationship have failed, we reverse the trial court’s order terminating the parental rights of Father to his son, R.S., II. * * *

Father appealed the termination of his parental rights, but the Court of Appeals affirmed the trial court. R.S. v. Ind. Dep’t of Child Servs., 49A04-1508-JT-1141 (Ind. Ct. App. March 23, 2016) [ILB: This was a NFP COA decision]. We now grant transfer and reverse the trial court’s termination of Father’s parental rights with R.S., thereby vacating the Court of Appeals opinion. Ind. App. Rule 58(A). * * *

We hold that the trial court’s findings do not clearly and convincingly support its conclusion that termination of Father’s parental rights is in the best interests of R.S. Therefore, we reverse the trial court’s order terminating Father’s parental rights.

Posted by Marcia Oddi on Tuesday, August 16, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 11 NFP memorandum decision(s))

For publication opinions today (2):

In State of Indiana v. Yvonne S. Morgan , a 12-page opinion, Judge Bradford writes:

In September of 2014, Appellant-Plaintiff the State of Indiana charged Appellee-Defendant Yvonne Morgan with Class B felony conspiracy to commit dealing in a schedule III controlled substance and Class C felony corrupt
business influence. Approximately one year later, Morgan moved to dismiss the charges against her, and the State filed an amended information charging Morgan with two counts of Class B felony conspiracy to commit dealing in a schedule III controlled substance, Class C felony corrupt business influence, and three counts of Class B felony aiding dealing in a schedule III controlled substance. Morgan filed a renewed motion to dismiss all of the charges against her, which motion the trial court granted. The State now appeals, arguing that the trial court abused its discretion in granting Morgan’s motion to dismiss. Because we agree, we reverse and remand with instructions to reinstate the charges against Morgan. * * *

We conclude that the trial court abused its discretion in dismissing the criminal charges against Morgan on the basis that the facts alleged did not constitute criminal offenses. We further conclude that Morgan has failed to establish that the criminal statutes in question were void for vagueness as applied to her. We therefore reverse the judgment of the trial court and remand with instructions to reinstate the criminal charges against Morgan.

In Harry L. Lacy v. State of Indiana, an 11-page opinion, Judge May writes:
Harry L. Lacy appeals his conviction of Level 6 felony identity deception arguing the trial court abused its discretion by declining to give his tendered jury instructions. He also claims the prosecutor committed misconduct by arguing Lacy had the burden to prove an affirmative defense. * * *

Because Lacy’s tendered instructions either incorrectly stated the law or were not supported by the record, the trial court did not abuse its discretion by declining them, and the prosecutor did not commit misconduct by discussing the elements as outlined in the court’s instructions. Accordingly, we affirm.

NFP civil decisions today (4):

Charles Sweeney v. Senator David C. Long, President Pro Tempore, Indiana General Assembly, et al. (mem. dec.)

Sharon Mallory v. Karen Freeman-Wilson, in her official capacity as Mayor of the City of Gary, Indiana, Attorney General of Indiana (mem. dec.)

In re the Termination of the Parent-Child Relationship of Ga.R., Gr.R., & J.R. (minor children) and D.R. (mother) v. The Indiana Department of Child Services (mem. dec.)

In the Matter of J.C., Minor Child, A Child in Need of Services, B.T. v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.)

NFP criminal decisions today (7):

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

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

Timothy S. Morrow, Jr. v. State of Indiana (mem. dec.)

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

Christopher George Gordon v. State of Indiana (mem. dec.)

Jeremiah Beverly v. State of Indiana (mem. dec.)

Charles Sharpe v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, August 16, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: More on: Federal district court rules in complex rights of same-sex couples dispute [Updated]

Updating this ILB post from June 30th on Judge Pratt's 32-page decision that day in Henderson v. Adams, along with this quote from a Lafayette Journal & Courier story the following day:

[Updated at 2:14 pm] The ILB has received this note:

We filed this Notice of Supplemental Authority today, calling Judge Pratt’s attention to yesterday’s [Aug. 15th] decision of the Indiana Court of Appeals in Gardenour v. Bondelie and its relevance to the State’s Motion to Alter or Amend Judgment and our response thereto.
and this motion:

Posted by Marcia Oddi on Tuesday, August 16, 2016
Posted to Ind Fed D.Ct. Decisions

Environment - East Chicago housing project built in 1972 on lead-contaminated soil; residents now being relocated ...

"An Indiana City Is Poised To Become The Next Flint" is the headline to a lengthy ThinkProgress piece by Alex Zielinski, published yesterday. A sample:

East Chicago has always been an industrial town. In fact, at the turn of the century, it was known as “the most industrialized municipality” in the country. Steel, petroleum, cement, lead, zinc, aluminum, tin — nearly every major industrial byproduct has been produced in the 11 square mile city.

In 1920, U.S.S. Lead set up shop along the town’s central Calumet River and began churning lead dust, arsenic, and other chemicals into the atmosphere. Around the same time, Anaconda Lead Products opened a few blocks north of U.S.S. Lead and did the same.

In 1973, U.S.S. Lead began dismantling car batteries to recover lead parts. Discarded materials saturated the soil with battery acid. Anaconda Lead has a shorter legacy — after shutting down in 1936, the factory’s buildings were demolished and cleared, leaving only lead-rich soil in its wake.

And then the city replaced it with an expansive, 346-unit low-income public housing complex.

It wasn’t until U.S.S. Lead shuttered in 1985 that the Indiana Department of Environmental Management tested soil in surrounding areas for contaminants. Out of the 14 locations tested in Anaconda’s former property, six had soil with lead levels at 11,000 ppm. EPA’s maximum level for lead content in residential areas is 400 ppm.

In 1992, shortly after U.S.S. Lead declared bankruptcy, the EPA proposed the area be included on the Superfund National Priorities List — the EPA’s to-do list of toxic environmental areas in dire need of decontamination — but it was mysteriously rejected. After testing the soil directly on the WCC property again in 2009, and finding equally high levels of lead, the 74 acres of Calumet neighborhood were finally deemed a Superfund site.

However, is was only last month that residents were notified. As Carrie Napoleon reports today in the Gary Post Tribune:
Mayor Anthony Copeland sent a letter to residents in July informing them of the contamination and advising them to relocate. The Department of Housing and Urban Development in an unprecedented move earlier this month sped up the approval process for emergency relocation assistance vouchers for all of the residents from 90 to 120 days to one week. HUD also approved the city's request to demolish the complex once residents have moved on.

The West Calumet complex was built in 1972 in the footprint of the former Anaconda Lead Products Co. site after the factory was demolished.

The EPA began sampling all of the Calumet area in 2008, which prompted the listing of the site to the Superfund priority list. In 2011, emergency cleanup of 13 properties in the Superfund site took place, three in the West Calumet complex and 10 single family homes.

City attorney Carla Rogers said after Copeland was elected in 2011 and became aware of the Superfund status he has been pushing for remediation. Copeland has been pushing since June for relocation of residents.

Sarah Reese reported Aug. 8th in a comprehensive story in the NWI Times:
EAST CHICAGO — As many as 1,200 residents — about two-thirds of them children — have been told it would be safer if they temporarily relocated from the city’s West Calumet Housing Complex because of health risks posed by lead in the soil around their homes, city officials said.

In a letter residents began receiving this week, Mayor Anthony Copeland said the city and East Chicago Housing Authority “recently were informed” by the Environmental Protection Agency that the ground within the public housing complex was “highly contaminated with lead and arsenic.”

As a result, the mayor ordered the East Chicago Health Department to offer lead testing to residents and their children. A U.S. Environmental Protection Agency webpage says West Calumet residents should call the East Chicago Health Department to have children tested.

“Now that we know the levels of lead in the ground in the West Calumet Housing Complex, we feel it is in your best interest to temporarily relocate your household to safer conditions,” the mayor's letter said. * * *

It’s long been known the soil at West Calumet Complex and other areas of the city’s Calumet neighborhood are contaminated, but residents were not expecting to be told they should leave their homes during remediation.

The neighborhood is part of a 79-acre U.S. Environmental Protection Agency Superfund site that once was home to the USS Lead facility. A copper smelter, lead refinery and secondary lead smelter operated there from 1906 to 1985, according to the EPA. The housing complex was built in the late 1960s and early 1970s.

EPA officials in 2012 proposed a cleanup plan that called for removing up to 2 feet of contaminated top soil and replacing it with clean soil, including up to 6 inches of top soil. The EPA said at the time the plan was chosen from several alternatives, because it would achieve cleanup goals in a reasonable amount of time at a lower cost.

In fall 2014, federal officials said they reached a settlement with Atlantic Richfield and DuPont for a $26 million cleanup of two of three zones within the neighborhood. One of those zones includes the West Calumet Complex and Carrie Gosch Elementary School, and the other is bounded by the Elgin & Joliet Railway Line and Parrish Avenue to the east and west, and East Chicago Avenue and East 149th Place to the north and south.

Remediation began in June, when the EPA issued a news release saying it would be placing mulch on bare ground in yards and a playground area in Goodman Park.

Residents were advised to prevent their children from playing in the dirt, not dig in yards or gardens, wash children’s toys regularly and wash children’s hands after outdoor play.

The EPA has not yet set a date for removing contaminated soil, and the agency will conduct community outreach before any excavation takes place, Bassler said.

Posted by Marcia Oddi on Tuesday, August 16, 2016
Posted to Environment

Monday, August 15, 2016

Ind. Courts - Still more on: Hamilton Co. judge "to hear conservatives' lawsuit challenging RFRA fix"

Updating this ILB post from this morning, the hearing scheduling for tomorrow morning has now been rescheduled - from the docket:

Hearing on Motion to Dismiss originally scheduled on 08/16/2016 at 9:00 AM was rescheduled to 11/02/2016 at 9:00 AM. Reason: Court's Own Motion.

Posted by Marcia Oddi on Monday, August 15, 2016
Posted to Indiana Courts

Environment - "Harmful blue-green algae creeps into Indiana lakes"

Christopher Stephens and Scott L. Miley of the Anderson Herald Bulletin has a comprehensive report on algae blooms in Indiana (here as republished in the Indiana Economic Digest), long an issue in Ohio (see long list of earlier ILB posts).

Posted by Marcia Oddi on Monday, August 15, 2016
Posted to Environment

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

In Walker Whatley v. Dushan Zatecky (SD Ind., Magnus-Stinson), a 45-page opinion reversing the district court, Judge Rovner writes:

Walker Whatley was convicted under a now‐repealed Indiana law of possessing a little more than three grams of cocaine within 1000 feet of a “youth program center.” On direct appeal and in federal habeas corpus proceedings, Whatley challenged the Indiana law on the ground that the statutory definition of “youth program center” was unconstitutionally vague. Although the Indiana Court of Appeals vacated his conviction on other grounds, the Indiana Supreme Court reinstated it. The district court declined to address his habeas claim on the merits after determining that he had defaulted the claim. We conclude that Whatley did not procedurally default his claim, and that his petition should be granted. * * *

In sum, a triad of factors convince us that the state courts were not simply wrong but unreasonable in applying federal law on vagueness in Whatley’s case: (1) the use of the word “regular” in the definition of “youth program center” provides no objective standard, and thereby fails to place persons of ordinary intelligence on notice of the conduct proscribed and allows for arbitrary enforcement; (2) defendants are strictly liable for violating the terms of this nebulous sentencing enhancement, exacerbating the effect of the subjectivity; and (3) the consequences of violating this indeterminate strict liability provision are extreme: an increase in the sentencing range from 2‐to‐8 years to 20‐to‐50 years’ imprisonment. The Indiana courts failed to narrow the statute by adding an intent element, by limiting application to the core cases of facilities such as YMCAs or Boys and Girls Clubs, or by providing any objective standard to the meaning of “regular.” There was no “reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. As applied to Whatley, the statute delegated to the police, the prosecutor and the jury the task of determining what conduct was proscribed. No one in Whatley’s position could have known that the Robinson Community Church would fall within the definition simply because it hosted a handful of children’s events each week and otherwise bore no indicia of the children’s activities within. We therefore reverse and remand the judgment, with instructions to grant the writ of habeas corpus ordering that, within sixty days, Whatley either be released or that he be re‐sentenced under the Class C felony statute. If he is re‐sentenced, he must, of course, be given credit for the time he served under the Class A felony conviction.

REVERSED AND REMANDED.

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

Ind. Decisions - Supreme Court issues disciplinary order suspending Indianapolis attorney

From In the Matter of: Raymond F. Fairchild, a 5-0 order filed Aug. 12th:

Stipulated Facts: Respondent was hired by Client to pursue a medical malpractice action. Respondent filed a proposed complaint with the Indiana Department of Insurance and a medical review panel (“MRP”) was formed. Respondent did not timely file a written submission with the MRP and thereafter did not respond to inquiries from the MRP’s chairperson. Opposing counsel eventually filed a motion to dismiss for failure to prosecute, and the trial court scheduled a hearing on the motion. Respondent did not inform Client of the motion to dismiss or the scheduled hearing. For several months around the same time, Client made numerous attempts to contact Respondent regarding the status of her case, but Respondent would not timely take her calls or respond to her inquiries. Following the hearing, the trial court dismissed Client’s proposed complaint with prejudice. About two months later, Client learned of the dismissal through another attorney. Client filed a motion for relief from judgment, which was denied. Client then sued Respondent for malpractice. The suit eventually was settled and paid out by Respondent’s malpractice carrier.

In aggravation, the parties cite Respondent’s prior disciplinary history, his similar acts of neglect in other cases handled contemporaneously with Client’s case, and his substantial experience in the practice of law. In mitigation, the parties cite Respondent’s cooperation with the Commission and his acceptance of responsibility. * * *

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 180 days, without automatic reinstatement, beginning September 1, 2016.

Posted by Marcia Oddi on Monday, August 15, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In In re the Marriage of: Kristy Gardenour v. Denise Bondelie, a 22-page opinion, Judge Robb writes:

In 2006, Kristy Gardenour and Denise Bondelie entered into a formal registered domestic partnership (“RDP”) in accordance with California law. In California, registered domestic partners share the same rights granted to and obligations imposed upon spouses. After moving to Indiana, Kristy and Denise agreed to co-parent a child. In 2012, Kristy was artificially inseminated, and the following year, gave birth to a son, C.G. In early 2015, Kristy filed a petition seeking to terminate the RDP. The trial court terminated the couple’s RDP, awarded Denise joint legal custody of C.G. and parenting time and ordered her to pay child support. Kristy now appeals, raising multiple issues, which we consolidate and restate as: (1) whether the trial court erred in concluding Kristy and Denise intended and agreed to become registered domestic partners with equal rights as married couples and further erred in determining the couple’s RDP agreement established a spousal relationship, (2) whether the trial court erred in concluding Denise is C.G.’s legal parent, and (3) whether the trial court abused its discretion in awarding Denise joint legal custody and parenting time and ordering her to pay child support. We conclude Kristy and Denise intended to enter into a RDP agreement in accordance with California law. Pursuant to California law, Kristy’s and Denise’s RDP established a relationship virtually identical to marriage, and under the principle of comity, we recognize their relationship as a spousal relationship. We further conclude Denise is C.G.’s legal parent under Indiana
law, and the trial court did not err in awarding Denise joint legal custody and parenting time and ordering her to pay child support. We affirm. * * *

California allows same-sex individuals to enter into RDP agreements. Under California law, parties to a RDP are treated virtually identical to married spouses. Kristy and Denise contracted to enter into a relationship equivalent to marriage, which we recognize under comity. In Indiana, spouses who knowingly and voluntarily consent to artificial insemination are the legal parents of the resulting child. The trial court did not err in concluding Denise is C.G.’s legal parent, in awarding her joint legal custody and parenting time, and in ordering her to pay child support. Accordingly, we affirm.

NFP civil decisions today (1):

Cheryl Evans v. Richard Hawksworth, Town of Dune Acres, et al. (mem. dec.)

NFP criminal decisions today (2):

Charles Sharpe v. State of Indiana (mem. dec.)

Tanner Wilson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, August 15, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 12, 2016

Here is the Clerk's transfer list for the week ending Friday, August 12, 2016. It is two pages (and 27 cases) long.

Two transfers were granted last week:

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

Posted by Marcia Oddi on Monday, August 15, 2016
Posted to Indiana Transfer Lists

Ind. Gov't. - "Civil rights to be issue during campaign"

That is the heading to a column today by Ken de la Bastide in the Anderson Herald Bulletin. This paragraph caught my eye:

During a campaign appearance in Anderson, [Democrat John] Gregg said he would sign an executive order extending civil rights protections for members of the LGBT community working for state government.
Perhaps that may not be necessary. One of the "standardized policies" included in this list by the Indiana State Personnel Department is the Affirmative Action Policy Statement, eff. April 26, 2005, originating with Gov. Daniels. It reads:
The State of Indiana is committed to recruit, select, develop, and promote employees based on individual ability and job performance. Our policy is to provide equal employment opportunity to all people in all aspects of employer-employee relations without discrimination because of race, color, religion, sex, national origin, ancestry, age, disability, or veteran status. We will comply with the spirit as well as the letter of applicable state and federal law.

In addition, sexual orientation and gender identity shall not be a consideration in decisions concerning hiring, development, advancement and termination of civilian employees. Further, we will strive to maintain a working environment free of sexual harassment and intimidation.

We commit ourselves, the member(s) of the executive staff, the agency heads and the entire management team throughout state government to move toward ever more progressive affirmative action in state employment. Employment decisions will be made in a manner that will advance the principles of equal employment opportunity and affirmative action.

In order to ensure this expectation is carried out, I direct all appointing authorities to place affirmative action on their list of agency priorities. In addition, I charge the Director of State Personnel to develop and maintain the necessary programs, record, and reports to comply with laws and regulations and with the goals and objectives of equal employment opportunity and affirmative action programs.

Posted by Marcia Oddi on Monday, August 15, 2016
Posted to Indiana Government

Ind. Courts - "Vann's attorneys argue death penalty unconstitutional "

The Gary Post-Tribune had a long story August 12th by Becky Jacobs, looking at current and past challenges to Indiana's death penalty.

Posted by Marcia Oddi on Monday, August 15, 2016
Posted to Indiana Courts

Ind. Courts - More on: Hamilton Co. judge" to hear conservatives' lawsuit challenging RFRA fix"

Here is the docket for Indiana Family Institute, et al v. City of Carmel, et al (29D01-1512-MI-010207), subject of a long ILB post earlier this morning.

Posted by Marcia Oddi on Monday, August 15, 2016
Posted to Indiana Courts

Ind. Courts - Hamilton Co. judge" to hear conservatives' lawsuit challenging RFRA fix"

This Dec. 10, 2015 ILB post is headed "Lawsuit claims RCRA "fix" and ordinances passed pursuant thereto are invalid." From the post:

Indiana Family Institute, et al v. City of Carmel, et al is a 49-page lawsuit filed today in Hamilton County, by James Madison Center attorney James Bopp, challenging the RFRA "fix" and the ordinances that the cities of Carmel and Indianapolis passed pursuant to the "fix." * * *

Interestingly, although the Attorney General must defend in any lawsuit that challenges the constitutionality of state law, neither the AG nor the State has been made a party to this lawsuit.

From an ILB post later that same day:
Although I was unable to find such a mandate in the Indiana statutes, Attorney General Zoeller himself has written at length about this duty. See this 2015 Indiana Law Journal article by Gregory F. Zoeller, titled "Duty to Defend and the Rule of Law." From p. 515:
[This article] explains the proper role of a state attorney general when a party challenges a state statute. In short, an attorney general owes the state and its citizens, as sovereign, a duty to defend its statutes against constitutional attack except when controlling precedent so overwhelmingly shows that the statute is unconstitutional that no good-faith argument can be made in its defense. To exercise discretion more broadly, and selectively to pick and choose which statutes to defend, only erodes the rule of law.
A section on "Duty to Defend at the State Level" begins on p. 528.
Today the Indianapolis Star has an article by Stephanie Wang on the lawsuit. Some quotes:
Indiana cities, including Indianapolis and Carmel, are pushing back against a lawsuit challenging local ordinances that protect lesbian, gay, bisexual and transgender people from discrimination. * * *

The cities named in the lawsuit — Indianapolis, Carmel, Bloomington and Columbus, which have nondiscrimination ordinances that include LGBT protections — have asked a Hamilton Superior Court judge to dismiss the case. A hearing is scheduled for Tuesday morning.

The Indiana Family Institute and American Family Association of Indiana filed the lawsuit last December, seeking to bring back the state's controversial Religious Freedom Restoration Act in its original form in order to provide heightened protections for religious rights. Represented by prominent conservative attorney Jim Bopp, the groups want the court to throw out the RFRA "fix." * * *

In its response filed in court, the city of Indianapolis said the American Family Association has not been the subject of any complaints or investigations since the city's nondiscrimination ordinance was last amended in 2008.

The other cities say that the groups do not conduct business within their boundaries. They also say the groups are unlikely to be affected by nondiscrimination ordinances, because they do not employ enough workers to be subjected to an ordinance or their programs are not open to the public.

The conservative groups say they are posing a pre-enforcement challenge. They want to conduct voter education throughout the state, and their events are open to the public, even though they target evangelical Christians.

The cities also point out that the conservative groups did not sue the state, even though they are challenging a state law — "puzzling," they wrote in court documents.

That may allude to the politics behind it all. Indiana Attorney General Greg Zoeller, a Republican, has in the past fought to defend the state's ban on same-sex marriages. Republican Gov. Mike Pence also has opposed same-sex marriage and sided with religious rights over LGBT rights. [ILB: Emphasis added]

Pence, who often says he considers his evangelical Christian background essential to his politics and policies, was a close ally to the conservative groups as they lobbied for RFRA. Indiana Family Institute President Curt Smith and American Family Association of Indiana Executive Director Micah Clark posed for a photo with Pence when he signed RFRA into law.

The hearing on the motion to dismiss is scheduled for 9 a.m. Tuesday in Hamilton Superior Court, 1 Hamilton Square, Room 345, Noblesville. The hearing may be rescheduled because of an ongoing bench trial in the courtroom of Judge Steven Nation, who is assigned to the case.

[More] Here is the IFI's amended verified complaint, fled Jan. 25, 2016.

Posted by Marcia Oddi on Monday, August 15, 2016
Posted to Indiana Courts

Indiana Courts - Indiana Courts evolving approach to issues involving civil legal aid

Updatng this ILB post from May 17th, re the Indiana Courts evolving approach to issues involving unrepresented civil litigation, culminating in the creation of the Coalition for Court Access to work on civil legal aid, replacing three earlier entities, the new Coalition for Court Access will meet for the first time on Wed., August 17, beginning at 10:30 am. Here is the news release.

Here is the web page
for the new group, and here is the long agenda.

Posted by Marcia Oddi on Monday, August 15, 2016
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week 8/15/16):

Next week's oral arguments before the Supreme Court (week of 8/22/16):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 8/15/16):

Next week's oral arguments before the Court of Appeals (week of 8/22/16):

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, August 15, 2016
Posted to Upcoming Oral Arguments

Friday, August 12, 2016

Ind. Decisions - 7th Circuit decides one Indiana case today, involves Indiana's robbery statute

In USA v. Darrell Duncan (ND Ind., Miller), a 13-page opinion, Judge Hamilton writes:

The only issue in this appeal is whether a conviction under Indiana’s robbery statute, Indiana Code § 35-42-5-1, includes as an element “the use, attempted use, or threatened use of physical force against the person of another” such that it qualifies as a violent felony under the elements clause of the definition in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i). Our conclusion that Indiana robbery is a violent felony might seem about as interesting as a prediction that the sun will rise in the east to-morrow. Nevertheless, the intricate law that has developed around the classification of prior convictions for recidivist sentencing enhancements can produce some surprising results. See, e.g., Mathis v. United States, 579 U.S. —, 136 S. Ct. 2243 (2016) (burglary conviction not a violent felony under ACCA); Johnson v. United States, 559 U.S. 133 (2010) (battery conviction not a violent felony under ACCA); United States v. Gardner, 823 F.3d 793, 804 (4th Cir. 2016) (North Carolina common law robbery conviction not a violent felony under ACCA).

A person can commit robbery under Indiana Code § 35-42-5-1 by taking property by “putting any person in fear.” The statute itself does not tell us what the person must fear. Indiana case law teaches that the answer is fear of bodily injury. A conviction for such “robbery by fear” thus has as an element “the use, attempted use, or threatened use of physical force against the person of another.” A conviction for robbery under the Indiana statute qualifies under the still-valid elements clause of the ACCA definition of violent felony. * * *

The judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Friday, August 12, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 11 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (1):

In the Matter of K.W., A.W., and D.W. (Minor Children), Children in Need of Services, and D.W. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (10):

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

Mark Conley v. State of Indiana (mem. dec.)

Donn Lee Rupert v. State of Indiana (mem. dec.)

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

Robert C. Mackrill v. State of Indiana (mem. dec.)

Kenneth E. Sorrell v. State of Indiana (mem. dec.)

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

Steven A. Garland v. State of Indiana (mem. dec.)

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

Amber Cochran v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, August 12, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides Indiana case Aug. 11th, re forum non conveniens

In Ashoke Deb v. Sirva Incorporated (SD Ind., Pratt), a 26-page opinion, Judge Rovner writes:

Ashoke Deb contracted with an Indian moving company, Allied Lemuir, to move his belongings from Calcutta, India to St. John’s, Canada, but his belongings never left India. He now seeks to hold the defendants, two United States companies, SIRVA, Inc. and Allied Van Lines, Inc., responsible for the improper disposal and loss of his personal property in connection with his move. SIRVA and Allied moved to dismiss the complaint, arguing that Deb had failed to state a claim for which the court could grant relief, that he had failed to join a necessary party, and that the United States federal courts were not the proper venue for his claim. The district court agreed with the latter argument and dismissed on the grounds of forum non conveniens. Deb appeals. Because we have determined that the district court did not hold the defendants to their burden of demonstrating that India was an available and adequate forum for this litigation, we vacate and remand the case to the district court to do so. * * *

In sum, although it is within a district court’s sound discretion to dismiss a suit for forum non conveniens (Piper Aircraft, 454 U.S. at 257), it can only do so after placing the burden on the defendant to demonstrate availability and adequacy of an alternative forum. The district court erred by failing to properly place the burden. It may be that after conducting a proper look into the adequacy of the forum along with a balancing of the interests, the court may determine that a dismissal for forum non conveniens is indeed appropriate. Based on the bare claims before the district court, however, such a determination was in error. The defendants may refile their motion in an attempt to meet their burden. For that reason we VACATE the decision of the district court and REMAND for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Friday, August 12, 2016
Posted to Ind. (7th Cir.) Decisions

Environment - "Officials, residents, researchers look for answers to beach erosion"

Updating earlier stories (see, eg, July 6, 2016, and May 24, 2016), Michael Gonzalez of the Gary Post-Tribune reported August 7th in a very long story that is packed with information on the causes and ramifications of Indiana's Lake Michigan beach erosion, particularly in the Ogden Dunes area.

Not directly related, but also very interesting, was this Aug. 8th Diane Rehm show on "The Increasing Global Demand For Sand."

Posted by Marcia Oddi on Friday, August 12, 2016
Posted to Environment

Ind. Courts - Vigo Superior judge admonishes state in southern Indiana HIV case

From the Terre Haute Tribune Star today, a story by Lisa Trigg headed " HIV defendant released from jail, trial reset for 2017: Frustrated judge says prosecutors tardy in sharing evidence." Some quotes from the long story:

A Terre Haute man accused of knowingly spreading HIV was released from jail when his trial was reset for early 2017 because prosecutors failed to promptly share information with the defense.

As he left court, Isiah Benford, 32, said he would comply with the judges orders, including informing people of his HIV status.

Judge Michael Lewis rescheduled the Vigo County trial for Feb. 6 after saying he was “not happy” with prosecutors who failed to provide documents and witness lists to the defense until a few days before the trial, which was to have begun Monday.

Defense attorney Mark Mullican this week sought exclusion of recent witness additions, as well as information only recently turned over to the defense.

“It’s unfair to the defendant to not be given discovery material” ... and be presented with new witnesses in the final weeks leading up to trial, Lewis said.

The judge said he’d lost sleep recently over the handling of the case by the Vigo County Prosecutor’s Office.

“This is a very complex case,” the judge said. It is “probably one of the most complex cases we have had in this court.” * * *

Mullican had recently filed several motions with the court seeking information he said investigators knew about but had failed to provide.

The judge issued an order this week excluding some witness testimony because of the prosecution’s failure to provide relevant information.

Still, Mullican said he was ready to take the case to trial Monday. He said his client had sat in jail too long waiting for the prosecution to get its case together. * * *

Chief Deputy Prosecutor Rob Roberts asked for the continuance on Thursday.

“This is easily one of the most complex trials I’ve ever seen — most complex cases, most complex investigations I’ve ever seen,” Roberts said.

“Unfortunately, this is not an uncommon occurrence as you get closer to trial,” Roberts told the Tribune-Star. “There are certain avenues in the investigation that reveal themselves and you have to follow up on those.”

Roberts said the defendant has a right to a fair trial, and that meant more time was needed for the defense to review documents recently provided by the prosecution.

“Given the volume of information that has been provided to the defense in the last two weeks, we understood what the ramifications would be,” Roberts said.

“We felt that to operate within a fair system, the state moving to continue was the appropriate thing to do,” he said.

Lewis had previously granted Mullican’s motion to split the case into seven separate trials — one for each alleged victim — so that a jury would not be influenced against Benford by the number of alleged victims.

Lewis had also ordered 150 potential jurors be called as the jury pool had the trial begun Monday.

Lewis was visibly frustrated Thursday as he granted the continuance.

The judge noted a lot of trial preparations had been made and said his calendar would not be clear for such a trial until early 2017.

Posted by Marcia Oddi on Friday, August 12, 2016
Posted to Indiana Courts

Ind. Courts - "Mental Health Courts Aim To Connect Instead Of Criminalize"

Jill Sheridan of WFYI has a long story today - some quotes from the long, informative story:

INDIANAPOLIS - Over 5,000 people incarcerated in Indiana are also navigating mental health issues - this population is at high risk for recidivism. A growing number of Indiana counties are working to stop this cycle through alternative court programs. One alternative court in Marion County hopes to anchor itself permanently in the criminal justice system. * * *

The Marion County Jail in Indianapolis is at capacity. And over a third of the inmates, close to 900 people there, are struggling with addiction, schizophrenia, depression or some other mental health issue.

Colonel Louis Dezelan with the Marion County Sherriff’s office says the jail spends nearly $8 million a year treating these people.

"The truth is that the Sherriff is now the biggest mental health caretaker in the state of Indiana," commented Dezelan, "and we think that’s wrong. We’re not a hospital we’re a jail."

Most of the money is spent on psychotropic drugs, medical needs and special staffing. Dezelan said the treatment they receive in jail…. isn’t making a difference. Many people with mental illness end up back behind bars.

"I’ve been told over and over again by our health care professionals that these people would not be here if they were on proper treatment or if they were on their medications out in the community." Said Dezelan.

The revolving door is especially difficult for people suffering from mental illness who have no home, job, health care, support or money.

Across the street at the City County Building, a mental health court is held once a week to stop this cycle. Judge Barbara Crawford started the court in early 2015 and says it is making a difference. * * *

The court is called Marion County’s Behavioral Health Court. Participants work through five phases of the program that lays out a treatment plan including regular court appearances, medication compliance, drug screening, therapy and other activities to help make long-term life changes.

In 2014, the state legislature passed a bill to reduce recidivism for people with mental health problems and make programs competitive for grant money. This court brings together prosecutors, defense attorneys, judges and non-profits to plan and provide wrap-around services, supervision and support.

Posted by Marcia Oddi on Friday, August 12, 2016
Posted to Indiana Courts

Ind. Courts - Report of problems arising because of trial transcripts in appeals that have not been e-filed

The ILB receieved this note yesterday:

So...the new Appellate Rules require the trial court clerk to immediately transmit the completed transcript to the Appellate Clerk. It used to be that the trial court clerk could hold onto it until requested, or could send it to the appellant.

But they aren't doing that anymore. So I figured we would just head downtown from now on to start picking them up. Right? Wrong.

Last Thursday, my colleague learned that the trial court clerk had filed her notice of completion of transcript (which triggered his 30-day deadline) and had transmitted the transcript to the Appellate Clerk for filing. On Tuesday, my colleague saw that the transcript had been noted on the docket as having been received. So he went to the Appellate Clerk's office to check it out. But he couldn't.

Because they had to send the transcript out for "scanning." Today my colleague called to check on the progress, and he learned that the Appellate Clerk's office did not have it back from the scanning vendor and did not know when it might be back, but the deputy believed it would be Monday or later.

Let's assume it is Monday the 14th. He will have lost 1/3 of his 30-day period to review a 3-4 volume transcript and write his initial brief.

I talked to a friend in the clerk's office about this. She said that when we switch to e-filing transcripts, this should clear up. Except the volume of exhibits. The new rules still allow for the court reporters to file their exhibits by paper. So those would still need to be sent out for scanning. Which could delay release of the transcript to the appellant.

Why are court reporters still not required to comply with the rules, like including an electronic copy?

ILB: The ILB has learned that rule revisions are in process to address this issue.

Readers: Do you have additional e-filing issues that have popped up in your practice?

Posted by Marcia Oddi on Friday, August 12, 2016
Posted to E-filing | Indiana Courts

Ind. Courts - "'Lake County boy' joins Indiana Supreme Court"

That is the headline to this story in the NWI Times, reported by Dan Cardin. A few quotes:

INDIANAPOLIS — The formal swearing-in of Indiana’s newest Supreme Court justice on Thursday had a distinctly Region feel.

In a Statehouse courtroom packed with friends, relatives and colleagues from across Northwest Indiana, Crown Point native Geoffrey Slaughter — a self-described “Lake County boy” — was administered the oath of office by Chief Justice Loretta Rush, who lived in Munster as a child.

Slaughter then put on his black judicial robe with help from his cousin Bill Bailey, of Ogden Dunes, and took his place on the five-member bench following a warm introduction by Justice Robert Rucker, a Gary native.

Indiana’s 109th justice said his place on the state’s highest court as successor to longtime Justice Brent Dickson, a Hobart native, only was possible because he was “raised in a family and in a community committed to learning and a first-rate public education.”

The story links to earlier NWI Times stories on the appointment, plus to more photos and to the video of the ceremony.

From the Gary Post-Tribune today, a story by Javonte Anderson, headed "Crown Point native joins Indiana Supreme Court." Some quotes from the long story:

In her opening remarks, U.S. Magistrate Judge Debra McVicker Lynch said Slaughter is a "perfect fit" for the Indiana Supreme Court. "He is an accomplished thinker and writer," she said. "He loves law. He loves policy. He loves language. He loves people. He will be a terrific 109th justice for the Indiana Supreme Court."

During her remarks Lynch brought some comic relief to the ceremony as she spoke of Slaughter's love for the Chicago Cubs and Indiana University football to his "strange affliction" with Times New Roman font. * * *

"I'm a Lake County boy," Slaughter said. I was born in Gary but grew up in Crown Point. I was fortunate to be raised in a family community committed to learning and a first-rate public education."

Slaughter's late father, Guy, was a longtime Post-Tribune editor and columnist who was based in Crown Point for much of his career at the newspaper.

Despite graduating from Crown Point High School more than 30 years ago, Slaughter said he still reads the Crown Point Star, "just to keep up on the hometown news."

Posted by Marcia Oddi on Friday, August 12, 2016
Posted to Indiana Courts | Vacancy on Supreme Court - 2016

Thursday, August 11, 2016

Ind. Courts - 3rd time a charm for Justice Slaughter

Geoffrey G. Slaughter was formally sworn in today as Indiana's 109th Justice.

According to the ILB archives, five applicants for the Supreme Court in 2010 tried again in 2012 (for the 2nd vacancy to be filled in 2012), and tried for a third time in 2016: Fisher, Gull, Hardman, Nation, and Slaughter.

Posted by Marcia Oddi on Thursday, August 11, 2016
Posted to Vacancy on Supreme Court - 2016

Courts - No expungements at the federal level?

Apparently there are not expungements at the federal level, a situation brought home today in this Reuters story by Nate Raymond, headed "U.S. judges cannot expunge convictions despite job threats - court." (h/t @mattmaples)

The story begins:

Federal judges cannot expunge convictions from people's criminal records even when it prevents those who have been rehabilitated from getting jobs, and Congress should consider granting the judiciary that power, a U.S. appeals court ruled on Thursday.

The 2nd U.S. Circuit Court of Appeals in New York overturned a May 2015 ruling that expunged the records of a 2001 conviction of a woman who spent years struggling to hold down jobs because of it.

Here, from Wikipedia ...

Posted by Marcia Oddi on Thursday, August 11, 2016
Posted to Courts in general

Ind. Courts - More on: Investiture ceremony for Justice Slaughter Thursday, August 11

Updating this ILB post from August 8, you can watch the ceremony live here - it should last about an hour and began at 1 PM. The video will be archived.

Posted by Marcia Oddi on Thursday, August 11, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 15 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (9):

Gerald Hause, as Administrator of the Estate of Jon Michael Hause, Deceased v. Indiana University Health, Inc. f/k/a Clarian Health (mem. dec.)

Michael Janowiak v. Watcon, Inc. (mem. dec.)

Antonio Trujillo v. Bernard J. Vodde (mem. dec.)

Cody O'Riley v. Sergio Galindo-Oliva (mem. dec.)

Gerhard Klimeck v. Virginia Klimeck (mem. dec.)

K.M. v. A.M. (mem. dec.)

In the Matter of Paternity of N.S., K.H. v. D.S. (mem. dec.)

In the Termination of the Parent-Child Relationship of: C.W. (Child), and, Cl.W. (Father) v. The Indiana Department of Child Services (mem. dec.)

In the Termination of the Parent-Child Relationship of: K.K. & D.K. (Minor Children), and Ke.K. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (6):

Bawi Zaah v. State of Indiana (mem. dec.)

Akeem Carpenter v. State of Indiana (mem. dec.)

Jason D. Penninger v. State of Indiana (mem. dec.)

Bryant Dowdy v. State of Indiana (mem. dec.)

Ronald A. Williamson v. State of Indiana (mem. dec.)

Juan Duran v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, August 11, 2016
Posted to Ind. App.Ct. Decisions

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

In Brandenburg Industrial Service Company, an Illinois corporation v. Indiana Department of State Revenue, a 14-page opinion, Judge Wentworth writes:

Brandenburg Industrial Service Company has appealed the Indiana Department of State Revenue’s denials of its claims for a refund of the sales and use tax remitted in 2006 and 2007 as well as its assessments of sales and use tax for the same period (the period at issue). The matter is currently before the Court on the Department’s Motion for Partial Summary Judgment and presents one issue for the Court to decide.1 The Court restates the issue as whether Brandenburg was a producer of scrap steel eligible for exemption under Indiana Code § 6-2.5-5-3 (the Equipment Exemption) and Indiana Code § 6-2.5-5-5.1 (the Consumption Exemption) during the period at issue. Upon review, the Court finds in favor of Brandenburg. * * *

When, as here, all of the reasonable inferences arising from the undisputed material facts lead to but one conclusion, the Court may grant summary judgment to either party on the issues raised in the motion. See, e.g., Popovich v. Indiana Dep’t of State Revenue, 52 N.E.3d 73, 77-78 (Ind. Tax Ct. 2016). Accordingly, the Court GRANTS partial summary judgment to Brandenburg. The Court will direct the parties regarding all other remaining matters by separate cover.

Posted by Marcia Oddi on Thursday, August 11, 2016
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - "Fitch to Monitor Indiana Finance Auth's PABs Following I-69 Completion Delays

That was the heading to this July 20th story at Fitch Ratings.

From BusinessWire on August 5th, a story headed "Fitch Downgrades Indiana Finance Auth's PABs to 'BB'; Bonds Remain on Negative Watch ."

From the Bloomington Herald-Times today, a $$$ long story, with documents, by Michael Reschke headed "Effects on I-69 unclear after downgraded bond rating." The story begins:

I-69 Development Partners has issued default notices to subcontractor Isolux Corsan for failure to promptly pay subcontractors and for falling behind on a remedial completion schedule for Section 5 of Interstate 69.

As a result of those notices, Fitch Ratings has lowered its rating for the Indiana Finance Authority's private activity bonds, issued on behalf of I-69 Development Partners to help finance the project, to junk status.

Posted by Marcia Oddi on Thursday, August 11, 2016
Posted to Indiana Government

Environment - "Hoosiers Debate Use Of State Forests As Logging Rates Increase"

From WFYI, a long story with audio by Nick Janzen - a sample:

So far in 2016, 3,197,126 board feet of timber has been harvested on Indiana state forests—more than twice the amount in 2002.

Forests cover 21 percent of Indiana. But 200 years ago that number was 85 percent. According to State Forester John Seifert, that all started to change back in the mid-1800s.

“There was a lot of clearing of land for agriculture, for subsistence farming, and there was obviously a lot less forest land at that time,” Seifert said.

By 1900, Indiana was only 7 percent forested, although it was also the leading hardwood producer in the nation. In 1901, the Indiana General Assembly created the Board of Forestry—today’s Division of Forestry (DOF)—in an attempt to revive the state’s forests.

“The legislature, through concerns, I think, from citizens, thought there was a need to, not only to start a system that had public lands, but also a system that supported private lands management,” Seifert said.

DOF manages state forests, which are public lands owned by the state. While state forests, state parks, and nature preserves all sound like the same thing, there’s one key difference between a state forest and all the other public lands managed by the Department of Natural Resources.

“The thing that’s really different that separates us from other divisions in DNR is, you know, every DNR division was set in statute what their goals and objectives would be," Seifert said. "And ours has always been manage the forest for commodities as well as wildlife and recreation.”

Commodities—that’s the key word. State forests exist, in part, to be logged. They’re different from state parks or nature preserves, which exist solely to protect nature, although the distinction can be troublesome.

“It also causes us the most conflicts at times,” Seifert said.

From the July 26th Terre Haute Tribune-Star, a story headed " Pike Lumber Company doubling production in Ripley County: Company also operates facilities in Clay, Fulton counties." A quote:
Founded in 1904, Pike Lumber is Indiana’s largest manufacturer and distributor of kiln dried lumber. With three mill locations throughout the state, the company serves a variety of buyers in the cabinet, millwork, furniture and musical instrument industries. Pike Lumber controls the manufacturing process from the forest to the end kiln dried delivered board.

The Indiana Economic Development Corporation offered Pike Lumber Company Inc. up to $100,000 in conditional tax credits based on the company’s job creation plans. These tax credits are performance-based, meaning until Hoosiers are hired, the company is not eligible to claim incentives. The town of Milan approved additional incentives at the request of the Ripley County Economic Development Corporation.

Here also is a news release from Inside Indiana Business.

Posted by Marcia Oddi on Thursday, August 11, 2016
Posted to Environment | Indiana economic development

Ind. Decisions - "Jury finds Daniel Messel guilty in murder of IU student Hannah Wilson"

Updating yesterday's coverage, here is the Laura Lane/Abby Tonsing FREE access story in the Bloomington Herald-Times today. A sample:

The eight women and four men on the jury started deliberating just before 11 Wednesday morning.

The verdict was announced about five hours later.

Guilty.

The family and friends of Hannah Wilson filled two pew-like rows behind the prosecution table. Many cried after the verdict was announced and as Judge Judith Stewart polled each juror to confirm the unanimous conviction.

Messel showed no emotion. He rested his chin in his hand, just as he had while watching Indiana State Police crime scene video footage during testimony last week.

The jury wasn’t done after handing down its guilty verdict.

They also determined that Messel was a habitual criminal offender based on his previous felony convictions for battery. The state requested the sentencing enhancement, which will add 20 years to the sentence the judge gives him next month.

He faces a 45- to 65-year prison term, 65 to 85 total, and is scheduled to be sentenced at 1 p.m. Sept. 22.

Here is Madeline Buckley's story from the Indianapolis Star (warning: with annoying auto audio), headed "Hannah Wilson verdict: ‘She fought him off, and now he’s off the street’", that includes, at the end of the story. links to the Star's full coverage of the trial.

Posted by Marcia Oddi on Thursday, August 11, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Floyd Council not seeking $27K from Henderson"

Updating earlier posts on Floyd County Prosecutor Keith Henderson, the most recent of which was August 5th, Madeleine Winer of the Louisville Courier Journal reports today in a long story that begins:

he Floyd County Council has dismissed a resolution requesting that the county prosecutor repay more than $27,000 in legal expenses involving the David Camm triple-murder case.

Last week, a hearing officer from Indiana’s Disciplinary Commission recommended that Floyd County Prosecutor Keith Henderson be “reprimanded” for violating ethics rules by pursuing a deal to write a book about the Camm case between the second and third trials. * * *

Councilman Matt Oakley drafted the resolution seeking a refund of the $27,000. But the council refused to take it up Tuesday afternoon, saying it was premature because the high court hadn't weighed in on the ethics findings.

“Taxpayers should not be responsible for his bills,” Oakley said later Tuesday.

Floyd County Democratic Party Chairman Adam Dickey also criticized the decision, saying the council “stood silent” when it had the “opportunity to demand accountability” for Henderson’s spending actions.

“It is clear that these funds should not have been expended and the underlying reason they were requested by the Prosecutor is directly due to Mr. Henderson’s ethical lapse,” Dickey said in a statement.

Posted by Marcia Oddi on Thursday, August 11, 2016
Posted to Indiana Government

Ind. Courts - More on "ACLU, Planned Parenthood Challenge New Ultrasound Requirements"

Updating this ILB post from July 7th, which includes a copy of the complaint, WDRB Lousiville is now reporting that a hearing has been set for Nov. 9th.

Posted by Marcia Oddi on Thursday, August 11, 2016
Posted to Indiana Courts

Ind. Decisions - "Evansville loses latest attempt to end gun owner lawsuit"

Updating City of Evansville and The Evansville Department of Parks and Recreation v. Benjamin A. Magenheimer (see long list of ILB posts here), Mark Wilson reported in the Evansville Courier & Press yesterday, by way of background:

Benjamin Magenheimer was removed from Mesker Park Zoo while openly wearing a handgun in September 2011. He filed a lawsuit against the city the same month, claiming his removal violated what was then a new state law barring local governments from regulating guns.

Magenheimer’s lawsuit was filed under Indiana’s Firearms Preemption Act, which bars local governments from regulating guns. The act had been in effect only a few months at the time.

The lawsuit has been pending since 2011 while the city has unsuccessfully sought its dismissal, losing two previous motions for a judgement in the city's favor.

City attorneys had argued Magenheimer should have filed the lawsuit as a tort claim — the legal means by which citizens can sue government agencies or their employees — which would have made it invalid because he did not serve proper notice under that law.

However, in June 2015, the Indiana Court of Appeals ruled in favor of Magenheimer when the city appealed Heldt's ruling that the lawsuit had been properly filed. The Indiana Supreme Court then denied the city's petition to hear its appeal on the issue.

Guy Relford, the Carmel, Indiana, lawyer representing Magenheimer, said an August trial date has been canceled and the two sides have been ordered to seek mediation.

A new trial date has not been set.

And yesterday:
A judge has denied Evansville's latest motion to dismiss a local gunowner's lawsuit accusing the city of violating a state law barring local governments from regulating guns.

Vanderburgh County Senior Judge Carl Heldt issued an order denying the city's motion for summary judgement Wednesday afternoon. It is the third time the city has lost a bid to dismiss the lawsuit.

Posted by Marcia Oddi on Thursday, August 11, 2016
Posted to Indiana Decisions

Wednesday, August 10, 2016

Ind. Decisions - 7th Cir. decides copyright case out of Ill. involving Louis Farrakhan portrait

In Jesus Ali v. Final Call, Inc., a 15-page opinion, Chief Judge Wood writes:

Carpenters have a saying: measure twice, cut once. This litigation might have been averted if that adage had been observed here. In 1984, Jesus Muhammad‐Ali painted a portrait of the leader of the Nation of Islam, Louis Farrakhan. In 2013, Ali sued The Final Call, a newspaper that describes itself as the “propagation arm of the Nation of Islam,” for copyright infringement. The Final Call, it turned out, admittedly had sold over a hundred copies of Ali’s Farrakhan portrait. Ali nonetheless lost his case after a bench trial. He now appeals, arguing that the district court misstated the elements of a prima facie copyright infringement claim and erroneously shifted to him the burden of proving that the copies were unauthorized. Ali is correct, and The Final Call proved no defense. We therefore reverse.

Posted by Marcia Oddi on Wednesday, August 10, 2016
Posted to Ind. (7th Cir.) Decisions

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

In Alphonse Owens v. LVNV Funding, LLC (SD Ind., Stinson), a 28-page, 2-1 opinion which is one of 3 consolidated cases, two of which are out of J.Stinson's court, Judge Flaun writes:

In each of these consolidated cases, a debt collector filed a proof of claim, defined as “a written statement setting forth a creditor’s claim,” Fed. R. Bankr. P. 3001(a), for a time‐barred debt in a Chapter 13 bankruptcy proceeding. After successfully objecting to the proof of claim, the debtor sued the debt collector in federal court, alleging that the act of filing a proof of claim on a stale debt violates §§ 1692e and 1692f of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (“FDCPA”). In each case, the district court granted the defendant debt collector’s motion to dismiss. For the reasons that follow, we affirm those decisions. * * *

[p. 21] WOOD, Chief Judge, dissenting.

This court held, in Phillips v. Asset Acceptance, LLC, 736 F.3d 1076, 1079 (7th Cir. 2013), that the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq., prohibits a creditor from filing a lawsuit in state court to collect a debt for which the statute of limitations has expired. See also McMahon v. LVNV Funding, 744 F.3d 1010, 1020 (7th Cir. 2014). Today, the majority holds that the creditor may take comparable action within a bankruptcy proceeding, by filing a proof of claim on a debt that it knows to be stale— an action the creditor will take knowing that it will result in payment only if the staleness of the debt slips past the debtor, her lawyer (if she has one), and the trustee, and thus become collectible through the bankruptcy court (at the expense of other creditors). They rely on the broad scope of the types of claims that may or must be filed in bankruptcy, on the extra protections they believe bankruptcy affords, and the fact that the type of limitations bar we are considering here cuts off only the right to sue, not the cause of action itself. None of those rationales holds up under close inspection, in my view, and so I dissent.

Posted by Marcia Oddi on Wednesday, August 10, 2016
Posted to Ind. (7th Cir.) Decisions

Courts - Mass. Supreme Court approves new rules on access to court records

Todd Wallack reports today in the Boston Globe:

The Supreme Judicial Court has tentatively approved a new slate of rules for accessing Massachusetts court records, including partially restoring access to basic criminal court information online.

Under the new rules, the courts will gradually start allowing the general public to look up basic docket information online for almost all criminal cases - such as the status of the case and list of upcoming hearings - by entering the docket number for the case. The courts already allow the general public to look up basic information on most civil cases on the Internet.

We can do that in Indiana via mycase.IN.gov for those that are part of the Court's Odyessy network, or by using the commercial service Doxpop for those in other counties.

More from the Boston story:

The move comes a month after the courts abruptly blocked lawyers and journalists from accessing online data about criminal cases (except for cases where lawyers had entered an official court appearance), sparking an outcry from reporters, prosecutors, attorneys, and clerks. The courts said they made the move because they were concerned that certain organizations were systematically downloading information on civil and criminal cases. But the courts declined to name the organizations downloading the data, provide more details about how they were misusing the information, or fully explain how it caused any harm. * * *

The new rules also cover a variety of other issues. For instance, the rules make it clear that members of the public can use a mobile phone or other device to take a picture of a court document, instead of having to pay a clerk roughly $1 per page to make a copy.

In addition, the rules give the courts broad discretion to provide or deny statistics about court cases, but also direct the courts to generally deny requests for raw data - potentially making it harder for journalists and researchers to perform their own analysis of court records.

ILB: Indiana appears to be far ahead of Massachusetts in proving public access. See, for example, this July 27th ILB post.

Posted by Marcia Oddi on Wednesday, August 10, 2016
Posted to Courts in general

Ind. Decisions - "7th Circuit Reverses (for Now at Least) Softening of WI Voter ID Rule: What’s Next?"

That is the heading to this breaking post by Rick Hasen of Election Law Blog.

Posted by Marcia Oddi on Wednesday, August 10, 2016
Posted to Ind. (7th Cir.) Decisions

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

Updating this May 25th ILB post, Noah Feldman is tweeting Bloomberg that the 7th Circuit will reconsider the ruling. Here is his earlier article.

I've yet to locate verification. The May 17th opinion is USA v. Randy Johnson (151366).

[Updated] Here is the order granting the petition for rehearing in banc and vacating the opinion and judgment entered by the panel. (h/t Michael Ausbrook)

Posted by Marcia Oddi on Wednesday, August 10, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (0):

NFP civil decisions today (1):

Peter Aghimien and Mable Aghimien v. Mark Fox (mem. dec.)
, a 7-page opinion by Sr. Judge Friedlander, dealing with defamation, concludes:

The Aghimiens have not pointed to any countervailing evidence that indicates Fox falsely or recklessly accused Aghimien of plagiarism. As a result, there was no dispute of material fact on the element of actual malice, and the trial court properly granted summary judgment to Fox on the Aghimiens’ claim of defamation. See Poyser, 775 N.E.2d 1101 (trial court did not err in granting summary judgment on defamation claim; plaintiff failed to provide any evidence to show defendants knew or were reckless as to whether their statements were false). Furthermore, because the defamation claim is without merit, the trial court did not err in denying the Aghimiens’ motion for summary judgment.
NFP criminal decisions today (0):

Posted by Marcia Oddi on Wednesday, August 10, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Jurors hear closing arguments in Daniel Messel's murder trial"

Updating this ILB post from August 1, headed "Rare Murder Trial This Week at Brown County Courthouse," closing arguments are today.

The Bloomington Herald-Times has been providing FREE access to its coverage of this trial, which involves the murder of a 22-year-old Indiana University student, Hannah Wilson, in April of 2015.

Here is yesterday's story from their great reporter, Laura Lane, headed "Testimony concludes in Daniel Messel's trial."

Here is the H-T index page to all their coverage.

Here is today's coverage, so far ...

Posted by Marcia Oddi on Wednesday, August 10, 2016
Posted to Indiana Courts

Ind. Courts - More on: HEC files suit challenging the Constitutionality of State’s Right to Farm Laws

On Oct. 8, 2015 the ILB has a lengthy post on a lawsuit filed that day in Hendricks County challenging "the constitutionality of Indiana’s so-called Right to Farm laws." The case is Himsel v. Himsel.

Yesterday the Hoosier Environmental Council (HEC) filed an amended complaint adding several new claims. As they explain, the new claims include:

  1. A constitutional challenge to Indiana’s initial Right To Farm Act. Our original complaint only raised a challenge to SEA 186 – but now that the Defendants have raised the initial RTFA as an affirmative defense, the issue is ripe for challenge.

  2. A claim for inverse condemnation under Indiana’s eminent domain statute – essentially the statute requires any party that is granted the power of eminent domain under Indiana law to follow condemnation procedures to ensure fair market value is paid for the property or property interest condemned. Here, I’m arguing that the RTFA and SEA 186 gave the Defendants the power of eminent domain to take our clients’ protected property interests in the right of exclusion and right of use and enjoyment -- which they did without payment of just compensation, thus, a violation of the statute.

  3. A claim for the Defendants’ failure to report their ammonia emissions above 100 lbs/day as required by EPCRA based on the size/number of hogs at the CAFO.
Here is a copy of the 28-page amended complaint in Himsel v. Himsel (32D04-1510-PL-000150).

Posted by Marcia Oddi on Wednesday, August 10, 2016
Posted to Environment | Indiana Courts | Indiana Government | Indiana Law

Tuesday, August 09, 2016

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

In American Family Mutual Insurance v. David Williams (SD Ind., Barker), Chief Judge Wood writes:

They say every dog has its day. This case is about a dog—specifically, Emma, a black Labrador. Emma lived in Indiana with Anthony and Jeanette Van de Venter, friends of David Williams. When Williams, then visiting the Van de Venters, took Emma outside so that she could relieve herself, she raced off toward an enticing sound and Williams was injured. Before us is the question whether American Family Mutual Insurance (AmFam), the Van de Venter’s home insurer, must cover Williams’s medical ex-penses. AmFam said no and brought this suit for a declara-tory judgment to confirm its reading of the policy. The district court, however, found in favor of the Van de Venters and Williams. We affirm. * * *

As Williams held Emma’s leash, a “woof” rang out, shat-tering the early-afternoon air. That neighborhood dog’s bark proved to be, quite literally, worse than its bite: Emma lurched toward the sound, pulling Williams to the ground and seri-ously injuring his shoulder. Williams sued the Van de Venters, alleging that they were negligent in, among other things, failing to exercise reasonable care for his safety while he was a guest in their home.

At the time of Williams’s injury, the Van de Venters’ home was insured by a home-insurance policy with AmFam. The policy included personal liability coverage indemnifying the Van de Venters for compensatory damages for bodily injury and guaranteeing a defense against suits for such damages. The policy also contained a provision stating: “Intra-Insured Suits. We will not cover bodily injury to any insured.” In relevant part, the policy defined an “insured” as “any person ... legally responsible for a[n] ... animal owned by [a named in-sured or resident relative of a named insured] to which [the policy’s personal-liability coverages] apply.”

AmFam took the position that these provisions relieved it of the duty to defend or indemnify the Van de Venters. As we noted, the district court rejected its position, and AmFam now appeals. * * *

Williams was not Emma’s owner, keeper, or bailee. He was therefore not “legally responsible” for her under Indiana law, not an insured under the policy, and not precluded from cov-erage by the policy’s provision barring intra-insured suits. AmFam owes duties to defend and indemnify the Van de Venters against Williams’s suit arising from his injuries. The judgment of the district court is AFFIRMED.

[p. 10] HAMILTON, Circuit Judge, concurring.

I concur with the court’s opinion and judgment holding that American Family must both defend and indemnify the Van de Venters in Williams’ claim against them for his injury. The undisputed facts show that when he visited the Van de Venters’ home and took their dog for a walk, he was not the dog’s owner or keeper under Indiana law. He therefore was not “legally re-sponsible” for the dog and so was not an “insured” whose own injury claim would be excluded from coverage.

There is another, more fundamental reason for rejecting American Family’s attempt to deny coverage. Chief Judge Wood’s opinion for the court hints at it, noting that the “intra-insured provision was not meant to preclude coverage of every guest or business invitee who drops by the house and even momentarily controls the dog.” Supra, at 7. It might be useful for future cases to explain this more fundamental problem in American Family’s theory. It has less to do with the tort law of pets and more to do with the law of liability insurance and the scope of the duty to defend.

Posted by Marcia Oddi on Tuesday, August 09, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Edgardo A. Henriquez v. State of Indiana , a 7-page, 2-1 opinion, Chief Judge Vaidik writes [ILB emphasis]:

Edgardo Henriquez was convicted of Class A felony child molesting and sentenced to forty years, with ten years suspended to probation. Henriquez appeals, arguing that the trial court was required to advise him of his earliest and latest possible release dates pursuant to Indiana Code section 35-38-1-1(b) but failed to do so. Because trial courts are not equipped to determine these dates and Henriquez has not shown that he was harmed by the trial court’s failure to estimate the dates, we affirm. We also urge the legislature to revisit Indiana Code section 35-38-1-1(b), which imposes an impracticable burden on our trial courts.
* * *

Najam, J., concurs.
Baker, J., dissents with separate opinion. [which begins, at p. 6] Although I fully agree with almost all of the majority’s analysis, I respectfully part ways with its final two paragraphs and dissent from the result it reaches. The plain language of Indiana Code section 35-38-1-1(b) requires trial courts to advise a defendant being sentenced “that the person is sentenced for not less than the earliest release date and for not more than the maximum possible release date.” This language is not ambiguous. It may be true, as the majority opines, that this task “would be incredibly difficult, if not impossible,” for trial courts to accomplish. Slip op. p. 4. Nonetheless, our General Assembly has mandated this action, and it is not within our purview to exempt trial courts from a mandatory statute simply because it may be difficult to comply with its requirements. * * *

The mere fact that a statutory requirement is difficult to fulfill cannot possibly mean that it can be ignored altogether.

Therefore, I would remand this cause to the trial court so that it can include the statutorily required advisement in a new sentencing order. I agree with my colleagues that this lapse provides no relief for this defendant.

NFP civil decisions today (0):

NFP criminal decisions today (4):

Antonio R. Harrison v. State of Indiana (mem. dec.)

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

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

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

Posted by Marcia Oddi on Tuesday, August 09, 2016
Posted to Ind. App.Ct. Decisions

Courts - "Champaign County [Ohio] wind farm to push on after court ruling" [Updated]

From the Dayton Ohio Daily News yesterday, a story that begins:

A U.S. Appeals Court ruling provided mixed results for a proposed wind farm in Champaign County, but the project’s developers said they believe they can resolve concerns and push it forward.

Everpower Renewables, the company in charge of the project, plans to develop two wind farms in Champaign County that could install more than 100 turbines across several townships.

The Buckeye Wind Farm has divided the community for years.

Proponents have said the second phase of the project alone could add as much as $55 million to the local economy and create eight to 10 permanent jobs after construction wraps up. Both phases would provide renewable energy to more than 50,000 homes a year.

Opponents have said the wind mills will create a safety risk and be too close to homes, as well as endanger bats. The project’s developers also failed to follow proper procedures in the approval process, opponents have contended.

ILB: The issue before the DC Circuit involved the U.S. Fish and Wildlife Service permit standards re protection of the Indiana bat. (If I can locate the opinion, I'll add it here.)

[More] From Courthouse News, a story by Jack Bouboushian headed "Feds Must Study Wind Farm's Harm to Bats." The story begins:

(CN) — Wind-turbine opponents persuaded the D.C. Circuit that the government issued a permit to an Ohio wind farm without fully considering ways to reduce the deaths of endangered Indiana bats.

Ohio-based Union Neighbors United brought the 2013 complaint in Washington, D.C., taking issue with the U.S. government's approval of a permit for the Buckeye Wind Power Project.

Check the CN story for the details.

Lexology has a story that begins:

The U.S. Court of Appeals for the D.C. Circuit has invalidated the issuance by the U.S. Fish and Wildlife Service (USFWS) of an incidental take permit (ITP) under Section 10 of the Endangered Species Act for take of Indiana bats by the 100-turbine Buckeye Wind project in Ohio.
And there are a number of readily accessible stories online such as this one from The London Free Press, headed "Wind turbines killing tens of thousands of bats, including many on the endangered species list."

Posted by Marcia Oddi on Tuesday, August 09, 2016
Posted to Courts in general | Environment | Indiana Government

Environment - Willam D. Ruckelhaus and William K Reilly support Clinton

From Roll Call today, a story headed: "Former EPA Administrators Who Served Republicans Support Clinton: They say Trump threatens to destroy GOP environmental 'legacy'" - it begins:

Two former Environmental Protection Agency administrators who served Republican presidents have endorsed Hillary Clinton.

The Clinton campaign made public the endorsements by Willam D. Ruckelhaus and William K Reilly in a statement early Tuesday.

Ruckelhaus was the EPA’s first administrator under President Richard Nixon and he held the same job under President Ronald Reagan. Reilly served as President George H.W. Bush’s EPA administrator.

“Republicans have a long history of support for the environment dating back to Theodore Roosevelt. Donald Trump threatens to destroy that legacy of respect for the environment and protection of public health,” the joint statement reads.

ILB: Bill Ruckelhaus, of course, has deep Hoosier roots. I'll post the entire statement if I can locate it.

[More]
Here is the full statement.

Posted by Marcia Oddi on Tuesday, August 09, 2016
Posted to Environment

Monday, August 08, 2016

Ind. Decisions - No Indiana cases today

It looks like no Indiana opinions today from the state appellate courts and the 7th Circuit.

Posted by Marcia Oddi on Monday, August 08, 2016
Posted to Indiana Decisions

Courts - Jury Trials Vanish in Federal Courts - What about Indiana state courts?

Supplementing this ILB post from a few minutes ago, Dan Carden of the NWI Times notes that "Rarity of jury trials holds true for Indiana courts too.." Here is a long, detailed 2015 Carden story recapping the 2014 Judicial Service Report, that includes:

Just 1,169 jury trials were held last year across Indiana accounting for a mere 0.08 percent of all case dispositions.
From a Nov. 4, 2013 Carden NWI Times story headed "Jury verdicts rare in Indiana courtrooms," with some great quotes from then Chief Justice Brent Dickson:
INDIANAPOLIS | It is a hallmark of nearly every television courtroom drama, but the nervous defendant anxiously awaiting a jury's verdict is rarely seen inside Indiana's legal system.

Out of 1.6 million new Indiana court cases, just 1,338 were decided by a jury during the 2012 court year, which ran from July 1, 2011, to June 30, 2012. That's up from 1,298 in 2011, but 180 fewer jury verdicts than 2010, according to state court data released Monday.

Lake County had 122 cases decided by a jury last year. That's 9 percent of the state total and close to the county's 7.6 percent share of the state's population. Lake juries decided 111 cases in 2011 and 143 in 2010.

In Porter County, 35 jury verdicts were issued last year, down from 40 in 2011 but up from 30 in 2010. LaPorte County had 16 jury decisions in 2012, Newton five and Jasper three.

Indiana Chief Justice Brent Dickson, a Hobart native, attributes the rarity of jury verdicts to the increased use of plea bargains and diversions in criminal cases and mediation to resolve civil lawsuits, without all of which "the system could not exist," he said.

However, the state's top jurist is concerned about the relative scarcity of jury trials, which he called "the lifeblood of the American judicial system."

"We don't want to see jury trials disappear," Dickson said. "Jury trials are where the skills of lawyers are honed, developed and carried on. Public confidence in the jury trial system is crucial."

The chief justice rejected a suggestion that, especially in criminal cases, the tendency away from jury trials puts too much power in the hands of prosecutors to force defendants into plea deals.

"I don't know that it's a bad thing that they have that power. I think that's an appropriate power that our system puts in the hands of prosecutors," Dickson said. "But, of course, it has to be exercised judiciously, and we hope and encourage that to be done."

Posted by Marcia Oddi on Monday, August 08, 2016
Posted to Indiana Courts

Courts - "Jury Trials Vanish, and Justice Is Served Behind Closed Doors"

That is the headline to this front-page NY Times story today, reported by Benjamin Weiser. Some quotes:

The criminal trial ended more than two and a half years ago, but Judge Jesse M. Furman can still vividly recall the case. It stands out, not because of the defendant or the subject matter, but because of its rarity: In his four-plus years on the bench in Federal District Court in Manhattan, it was his only criminal jury trial.

He is far from alone.

Judge J. Paul Oetken, in half a decade on that bench, has had four criminal trials, including one that was repeated after a jury deadlocked. For Judge Lewis A. Kaplan, who has handled some of the nation’s most important terrorism cases, it has been 18 months since his last criminal jury trial.

“It’s a loss,” Judge Kaplan said, “because when one thinks of the American system of justice, one thinks of justice being administered by juries of our peers. And to the extent that there’s a decline in criminal jury trials, that is happening less frequently.” * * *

“It’s hugely disappointing,” said Judge Jed S. Rakoff, a 20-year veteran of the Manhattan federal bench. “A trial is the one place where the system really gets tested. Everything else is done behind closed doors.”

Continue reading the main story
Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increased use of mandatory minimum sentences, which transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences.

“This is what jury trials were supposed to be a check against — the potential abuse of the use of prosecutorial power,” said Frederick P. Hafetz, a defense lawyer and a former chief of the criminal division of the United States attorney’s office in Manhattan, who is researching the issue of declining trials.

Later in the long story:
While the decline in jury trials in federal court has been felt by judges, lawyers and defendants, it has also disrupted the rhythm of the courthouse ecosystem and those who depend on it.

Young lawyers typically become clerks for Southern District judges to gain valuable trial experience; now, some clerks depart without having worked a single trial.

Even the court’s stenographers, whose incomes depend partially on the number of transcript pages they produce, feel the impact.

“It’s been awful,” said Rebecca Forman, who said she transcribed her last criminal jury trial in November 2015. “I didn’t send my kids to camp this summer. I didn’t have the money.” * * *

To be sure, federal judges are not exactly sitting on their hands. They maintain dockets filled with civil and criminal cases that wend their way through the process — even if most are resolved without a trial.

ILB: The NYT article is about federal criminal trials. But in 2010 the ILB linked to a still freely-available post in the WSJ Law Blog, headed "Why Have Federal Civil Jury Trials Basically Disappeared?."

A Feb. 13, 2011 ILB post is headed "Where Have You Gone, Atticus Finch?" and links to a good, still available story by Brandon Gee of The Tennessean headed "As jury cases decline, so does art of trial lawyers." A sample:

Her inability to participate in the trials she loved was a key reason Nancy Jones left Bass Berry & Sims' office in 2007 to lead the Tennessee Board of Professional Responsibility.

"What it really boiled down to is, when you wake up in the morning, and you haven't had a trial in nine years, can you look at yourself in the mirror and call yourself a trial lawyer?" she said.

Posted by Marcia Oddi on Monday, August 08, 2016
Posted to Courts in general

Ind. Courts - "State ethics commission still awaits fired prosecutor"

Updating earlier ILB posts on this matter that were headed "Prosecutors knew molestation accusations were false," Bob Kasarda of the NWI Times wrote this weekend on the Indiana Supreme Court's Disciplinary Commission process. Some quotes:

Porter Superior Court Judge Bill Alexa said he intends to refer the matter to the Indiana Supreme Court's Disciplinary Commission for an ethical review, which could result in a penalty as severe as disbarment.

But don't expect a quick decision by the commission or even a confirmation that a complaint is filed, according to Kathryn Dolan, chief public information officer with the Indiana Supreme Court.

Grievances, as they are initially called, can be filed by anyone, she said, but are not made public. They are reviewed and either dismissed for lack of cause or further investigated.

If it is believed there was lawyer misconduct, the case is passed on to the full commission, which decides whether to pursue it by filing a complaint with the clerk of the Supreme Court, Dolan said. The matter is only revealed to the public if a complaint is pursued, she said.

Of the 1,422 grievances received during the 2014-15 fiscal year, 32 verified complaints were filed, Dolan said. This amounts to 2.25 percent of the total.

Complaints are either resolved with the attorney or a hearing officer is appointed to listen to the evidence, according to the Disciplinary Commission. Both types of resolutions are referred to the Supreme Court for final action.

If the Supreme Court agrees a lawyer has engaged in misconduct, it orders a disciplinary sanction. Sanctions include a private or public reprimand, suspension from practice for a set amount of time or until the lawyer "proves fitness," or permanent disbarment, according to the commission.

Posted by Marcia Oddi on Monday, August 08, 2016
Posted to Indiana Courts

Ind. Gov't. - "Indiana voter ID law likely not affected by recent court decisions"

That is the headline to this long $$ story this weekend by Megan Banta in the Bloomington Herald Times. Some quotes:

A recent spate of successful challenges to voter ID laws isn’t likely to affect Indiana, legal experts said.

Indiana’s law, which was one of the first of its kind and survived a legal challenge back in 2008, is different from those overturned recently in North Dakota, North Carolina, Wisconsin and Texas.

“Indiana’s law was written in such a porous way,” Michael Pitts said.

Pitts is a professor of law and a dean’s fellow at Indiana University’s Robert H. McKinney School of Law in Indianapolis. He teaches election law and has focused on voting rights and election administration in his scholarly work.

He said Indiana’s voter ID law provides ways to get around showing photo identification.

For example, people older than 65 can vote an absentee ballot via mail without showing identification, and there’s an opportunity to sign an affidavit saying a person can’t obtain an ID because of religious objections to being photographed or because of serious financial limitations.

The same can’t be said for laws that followed the 2008 decision in Crawford v. Marion County Election Board upholding Indiana’s law, experts said. * * *

One big difference is that the basis of the challenges themselves and the remedies plaintiffs are seeking vary, Pitts said.

With the exception of the case in North Carolina, courts largely have tended to make narrow revisions or write opinions that apply in certain instances, he said.

That’s different from Crawford, in which plaintiffs asked the courts to strike down the entire law, Pitts said.

[Beth Cate, an associate professor at IU’s School of Public and Environmental Affairs] said that kind of challenge — known as a facial challenge — is a high legal standard that’s difficult to meet.

And she agreed with Pitts, saying the recent cases have been “as-applied challenges” that seek to show the harm the laws cause and that they have disparate effects on minorities or impose an undue burden that outbalances an asserted interest by the state.

None of this means that someone couldn’t bring a new challenge to the state law and be successful, experts said, but that scenario isn’t probable.

“Somebody would need to present better proof that a decent number of people who want to vote are having trouble getting the identification necessary to vote in the state of Indiana, and that proof has yet to be generated,” Pitts said.

Posted by Marcia Oddi on Monday, August 08, 2016
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending August 5, 2016

Here is the Clerk's transfer list for the week ending Friday, August 5, 2016. It is one page (and 1 case) long.

One transfer were granted last week:

Posted by Marcia Oddi on Monday, August 08, 2016
Posted to Indiana Transfer Lists

Ind. Gov't. - Does historic designation affect property values?

Sunday's Fort Wayne Journal Gazette included this long story by Rosa Salter Rodriguez. Some quotes:

When Fort Wayne Realtor Joe Leksich bought a side-by-side duplex in Fort Wayne’s historic West Central neighborhood, the two homes needed a lot of work. But he was willing to invest the time and money because he knew there would be a payoff.

The homes sold quickly for about $200,000 each. Buyers purchased the homes, Leksich said, because they wanted to live in a house with a history.

“I think it adds value to a house,” Leksich said of homes having a historic designation. “In my opinion, I get a premium for the ­houses I’ve worked on because they’re historic.”

So, when the owner of Fort Wayne’s only Frank Lloyd Wright-designed home said he wanted the house’s local historic designation removed during recent appearances before the city’s Historic Preservation Commission, preservationists were puzzled.

Richard Herber, owner of the home at 3901 N. Washington Road, said he wanted the distinction pulled because he wanted to sell the house for the best price.

Getting the property off the historic list was the only way to “cast a wider net to the widest number of people,” he said. * * *

Herber told the historic commission July 25 he had not listed his house because real estate agents “uniformly” told him it would be difficult to sell with its historic designation.

His request to remove it was denied by the commission, but that decision could be voted on this month by City Council, which has 45 days to act from receipt of that decision.

The denial was the second this year, and Herber said he would continue to refile until the commission voted differently.

Realtor Lynn Reecer of Reecer Properties, Fort Wayne, said selling historic homes does have challenges.

One is determining an historic home’s value, she said. Appraisers usually base the price of a house on recent sales of comparable homes, she said, but often that can’t be done.

She pointed to two homes her company recently sold – the McCray Mansion in Kendallville, built in 1928 by the founder of an early 20th-century refrigeration company, and the sprawling Vermilyea House, one of Allen County’s oldest residences, with portions dating to 1839.

“They’re one of a kind. There isn’t another house like them,” she said.

Historic homes may take longer to sell, but sales have been greatly aided by the popularity of specialized websites, Reecer said. They allow for photos, videos and vivid descriptions and reach regional, national and international audiences.

The story also includes discussion of the specialized websites, including "a specialty website geared to those who want to buy or sell a Frank Lloyd Wright-designed home."

Historic designation issues have been covered before by the ILB. (The ILB is located in a histroic district.)

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

CityLab, part of the Atlantic Monthly group, published an article by Kriston Capps on Jan. 29th that is sure to be controversial. A sample from the long article: Certain buildings tend to be ideal candidates, categorically, for historic preservation. They are...
Posted in The Indiana Law Blog on May 16, 2016 10:40 AM

Ind. Gov't. - Louisville "Preservationists weigh challenge to landmarks ordinance"

The ILB has had four entries, beginning in Sept. 2011, about a New Albany dispute where the owner of a property in a historic district installing vinyl siding without a certificate of appropriateness. The owner claimed he had no knowledge...
Posted in The Indiana Law Blog on August 17, 2012 10:08 AM

Ind. Gov't. - More on: "Historic districts fading away?"

Sunday's ILB entry quoted a story in the NWI Times. From the story: "It's a debate raging across the region as development and homeowner concerns force battles over the cost or benefit of saving properties perceived by some to be...
Posted in The Indiana Law Blog on March 24, 2009 08:42 AM

Ind. Gov't. - "Historic districts fading away?"

Bill Donlan has this long story today in the NWI Times. Some quotes: Wrecking crews pulled down a century-old Crown Point home recently while preservation advocates raised debate about whether Northwest Indiana's historic districts should extend protection to larger areas...
Posted by Marcia Oddi on March 22, 2009 08:23 AM

Posted by Marcia Oddi on Monday, August 08, 2016
Posted to Indiana Government

Ind. Courts - Investiture ceremony for Justice Slaughter Thursday, August 11

From the news release:

The investiture ceremony for Geoffrey G. Slaughter as Indiana's 109th Justice will take place on Thursday, August 11 at 1:00 p.m. EDT in the Supreme Court Courtroom, on the 3rd floor of the State House. The public is invited to watch a webcast of the ceremony at courts.in.gov.

The one-hour ceremony will include remarks from United States Magistrate Judge Debra McVicker Lynch of the Southern District of Indiana. Chief Justice Loretta Rush will administer the ceremonial oath, and Justice Slaughter's official courtroom photograph will be unveiled. A photo gallery of previous swearing-in ceremonies is available online.

In May, Governor Mike Pence named Slaughter to succeed Justice Brent Dickson, who retired from the bench in April. After his appointment, Slaughter continued his work at an Indianapolis law firm until June. Chief Justice Rush administered a private oath on June 13 to allow Slaughter to officially begin work as an Indiana Justice prior to the August 11 ceremony.

Posted by Marcia Oddi on Monday, August 08, 2016
Posted to Indiana Courts | Vacancy on Supreme Court - 2016

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week 8/8/16):

Next week's oral arguments before the Supreme Court (week of 8/15/16):

Webcasts of Supreme Court oral arguments are available here.


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

Thursday, August 11

Next week's oral arguments before the Court of Appeals (week of 8/15/16):

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, August 08, 2016
Posted to Upcoming Oral Arguments

Friday, August 05, 2016

Ind. Courts - "Floyd County prosecutor asked to resign, withdraw candidacy for judge"

Updating earlier ILB posts on the hearing officer report, from yesterday afternoon and this morning, Elizabeth DePompei of the New Albany News & Tribune is now reporting:

FLOYD COUNTY — The Floyd County Democratic Party chairman has called for Keith Henderson to resign as prosecutor and withdraw from the race for Circuit Court judge.

Adam Dickey released a statement Thursday night after an Indiana Supreme Court Disciplinary Commission hearing officer released a report finding that Henderson violated rules of ethics for public attorneys. The alleged misconduct is related to Henderson entering an agreement to co-author a book detailing the David Camm trials. * * *

Dickey, Floyd County Democratic Party Chairman, said people throughout the country are tired of "self-serving politicians" and called for Henderson to resign.

"His behavior while in office sets a dangerous precedent and hurts the reputation of our county," Dickey wrote.

Dickey also called for Henderson to resign from the race for Circuit Court judge. Henderson, a Republican, is running against incumbent Circuit Court Judge Terrence Cody.

Pippen's findings also address allegations that Henderson was dishonest in requesting county money to pay for his legal fees in the ethics case against him. Pippen said the Disciplinary Commission failed to "present clear and convincing evidence" that Henderson violated any rules related to those funds.

"While the hearing officer did not offer an opinion on the legality of the payments made by Floyd County on claims submitted by Mr. Henderson for his personal legal fees in defending the disciplinary case, it is well past time for him to repay all $27,539.55 of taxpayer funds expended on his behalf," Dickey said in the statement. “It’s time we elected people of high morals that can help rebuild the trust citizens have lost in their government. Mr. Henderson is not that person.”

Posted by Marcia Oddi on Friday, August 05, 2016
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 8 NFP memorandum decision(s))

For publication opinions today (3):

In Jason Dean Hubbell v. State of Indiana, a 20-page opinion involving a pro se appellant, Judge Brown writes:

Jason Dean Hubbell appeals the denial of his petition for post-conviction relief. Hubbell raises three issues which we consolidate and restate as whether the trial court abused its discretion when it declined to take judicial notice of the record and whether the court denied Hubbell a fair hearing by refusing to obtain his direct appeal record from the Supreme Court Clerk. We reverse and remand. * * *

Rather than obtaining the Record of Proceedings for Hubbell, the post-conviction court imposed on Hubbell “the affirmative duty to get the [R]ecord [of Proceedings] to the PCR Court.” Post-Conviction Transcript at 25. It is not apparent how Hubbell could have accomplished that task when he is not a licensed lawyer, he is proceeding pro se, and he is indigent. Nor does there

None of the Indiana Supreme Court orders entered under the direct appeal or the Standing Order referenced above explicitly prohibit releasing the Record of Proceedings from a direct appeal to persons who are not licensed attorneys or employees of the Public Defender’s office, but that is a fair inference, as neither the Public Defender nor a petitioner’s lawyer is permitted to allow the Record of Proceedings out of his “supervision” or “control.”

Hubbell is not represented by the State’s Public Defender, who presumably would be responsible for bringing the Record of Proceedings to a post-conviction hearing. Hubbell is not a licensed lawyer, so he cannot check out the Record of Proceedings himself. Neither can he send a friend or relative, unless such person happens to be a licensed attorney.

Hubbell is proceeding as an indigent. Therefore, he presumably cannot afford to hire licensed counsel for the sole purpose of transmitting the Record of Proceedings from the Supreme Court to the post-conviction court. Nor should we presume he has the funds to purchase from the trial court reporter a new certified copy of the proceedings, which the post-conviction court acknowledges included a 28-volume transcript. See Order Denying Amended Verified Petition for Post-Conviction Relief at 1.

Hubbell acknowledges he once received the copy of his Record of Proceedings to which he was entitled. See Post-Conviction Rule 1(9)(b) (“Petitioners who are indigent and proceeding in forma pauperis shall be entitled to production of guilty plea and sentencing transcripts at public expense, prior to a hearing, if the petition is not dismissed.”). But he asserted in his December 30, 2014 motion that his copy is not certified and “may not be to the standard required by the court through damage occurring through shake downs . . . .” Appellant’s Appendix at 146.

Under these facts, it is difficult to see what more could be expected of Hubbell as he was attempting to present his post-conviction arguments. Until such time as electronic transcripts and records make this issue moot for all petitioners, pro se petitioners need to know how they may ensure the Records of Proceedings from their direct appeals are available for a post-conviction hearing. [ILB emphasis]

For the foregoing reasons, we reverse the post-conviction court’s denial of Hubbell’s petition for post-conviction relief, order the court to obtain the direct appeal Record, and permit Hubbell to question his witnesses and present his arguments with the benefit of a certified Record of Proceedings.

In Cory L. Montgomery v. State of Indiana, a 6-page opinion, Judge Najam writes:
Cory L. Montgomery appeals the trial court’s revocation of his probation. Montgomery raises a single issue for our review, namely, whether the trial court’s revocation of his probation, which followed the court’s revocation of his placement in a community transition program, violated the doctrine of res judicata. It did not. As such, we affirm.

Placement on probation and placement in a community transition program are not one and the same, and the court’s consideration of those options is not mutually exclusive. Rather, those options are two of many tools in the trial court’s toolbox for the court’s use in the administration and supervision of a defendant’s sentence, over which the court has continuing jurisdiction. We conclude that the trial court’s revocation of Montgomery’s probation was not barred by res judicata and was not otherwise an abuse of the trial court’s discretion. Accordingly, we affirm the trial court’s judgment.

In William J. Woodford v. State of Indiana, a 12-page opinion, Judge Bailey writes:
William J. Woodford (“Woodford”) appeals the trial court’s order modifying his sentence placement, arguing that the court abused its discretion by failing to grant the full relief he sought after he demonstrated exemplary rehabilitative efforts, including remaining free of conduct violations for the entirety of his nearly sixteen-year imprisonment. We remand.

[Issues] Woodford presents one issue: whether the trial court abused its discretion by ordering that the final twelve years of his sentence be served in community corrections, but not reducing his sentence.

We also address an issue raised by the State: whether the trial court had authority to modify Woodford’s sentence without the prosecutor’s consent. * * *

The trial court had authority to entertain Woodford’s first petition under the latest version of the sentence modification statute. We remand with instructions to hold a new hearing on Woodford’s petition and consider it under the revised statute, Indiana Code § 35-38-1-17 (Supp. 2015).

NFP civil decisions today (4):

In the Matter of: A.C. (Child Alleged to be in Need of Services) and K.R. (Mother); K.R. (Mother) v. The Indiana Department of Child Services (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of M.S. and K.S. (Children) and D.S. (Mother); D.S. (Mother) v. The Indiana Department of Child Services (mem. dec.)

Castlewood Property Owners Association, Inc. v. Leticia Guerra-Danko (mem. dec.)

In the Matter of the Adoption of S.W.F., a Minor Child, S.D.F. v. M.C.T. (mem. dec.)

NFP criminal decisions today (4):

Darnell L. Parks v. State of Indiana (mem. dec.)

James Eubanks v. State of Indiana (mem. dec.)

Tony R. Brockway v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Friday, August 05, 2016
Posted to Ind. App.Ct. Decisions

Law - "50 state analysis of legislation around body-worn cameras by police departments"

Read the full report here, from the Sunlight Foundation. Some points from the news release:

Posted by Marcia Oddi on Friday, August 05, 2016
Posted to General Law Related

Ind. Decisions - "Police must get warrant for cell phone location data"

Yesterday's 2-1 Court of Appeals decision in Marcus Zanders v. State of Indiana (ILB summary here) is the subject of a good story today in the NWI Times, reported by Dan Carden. Some quotes:

INDIANAPOLIS — Police must obtain a judicial warrant to access the cellular phone location records of a suspected criminal, the Indiana Court of Appeals ruled Thursday.

In a 2-1 decision, involving a first-of-its-kind issue for Indiana, the appellate court determined Hoosiers have an expectation of privacy in their location data maintained by cellphone providers, and police do not have automatic authority to access and use those records as a tracking device.

Appeals Judge Patricia Riley, a Rensselaer native writing for the court, distinguished cellphone location data from similar records individuals voluntarily convey to businesses, or other third parties, which those entities are free to provide to police or the government, upon request.

She said cell tower tracking information is neither tangible nor visible to a user, is gathered quietly and constantly without notice and cannot be effectively disabled without rendering the device, which "has become essential for full cultural and economic participation," all but useless.

"A cellphone user cannot be said to voluntarily convey to her service provider information that she never held but was instead generated by the service provider itself without the user's involvement. Accordingly, the third-party doctrine does not (apply)," Riley said.

As a result, the appeals court held that cellphone location records are similar to data, photographs and other personal information stored in a phone, which the U.S. Supreme Court ruled in 2014 generally cannot be searched by police without a warrant — even if the device belongs to a person under arrest.

Likewise, a different three-judge panel of the Indiana Court of Appeals found in 2015 that Hoosiers have an expectation of privacy for historical location data stored in a vehicle's GPS device, and barred police from accessing that information without a warrant. [link to earlier NWI Times story on GPS ruling]

"So here. too," Riley said. "We require police officers to do what they have done for decades when seeking to intrude upon a reasonable expectation of privacy: get a warrant."

"Cell-site data is not the type of information which spoils or perishes during the short time it takes to get a warrant and, as such, imposing the requirements for a warrant under these circumstances would hardly shackle law enforcement from conducting effective investigations."

The story also notes that:
... the Republican-controlled General Assembly this year enacted a statute specifically addressing police access of cellular geolocation data.

House Enrolled Act 1013, signed by Republican Gov. Mike Pence on March 21, requires police obtain a warrant every time an officer requests location data from a cellular provider, except if needed to respond to a call for emergency services or in an emergency situation involving the risk of death or serious bodily injury.

Under those circumstances, the law provides police a 72-hour window after receiving the data to get a warrant.

Posted by Marcia Oddi on Friday, August 05, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Pregnant woman, 'mauled' by police K-9, sues IMPD"

Michael Anthony Adams has the story today in the Indianapolis Star. A few quotes:

Mara Mancini was seven months pregnant in July 2015 when an Indianapolis Metropolitan Police Department K-9 tore into her arm and thigh as the dog was chasing a suspect through her west-side neighborhood. * * *

Mancini's attorney, Jon Little, told IndyStar that Indiana has a law granting immunity for police dogs, and their handlers, in such incidents. According to Indiana law, a dog and its owner are exempt from the state's dog bite liability statute if the dog is owned by a government agency and the "dog is engaged in assisting the owner or the owner's agent in the performance of law enforcement or military duties."

"In Indiana, by law, and by previous precedent, police dogs can run amok without any form of redress for people," Little said. "That's why we're bringing a federal claim for deprivation of liberty for the time she was being mauled by the dog, the literal time she was being mauled by the dog.

"If this doesn't work, there is absolutely no way for her to sue, or anyone to sue, in Indiana when they are brutalized by a police dog."

Posted by Marcia Oddi on Friday, August 05, 2016
Posted to Indiana Courts

Ind. Courts - More on "Reprimand recommended against Floyd County Prosecutor Keith Henderson over actions in David Camm case"

Updating yesterday's ILB post, which includes a link to the Hearing Officer recommendation, here is more press coverage:

Posted by Marcia Oddi on Friday, August 05, 2016
Posted to Indiana Courts

Thursday, August 04, 2016

Ind. Decisions - Supreme Court decides one today, re a refusal-to-identify conviction

In Corey T. Weaver v. State of Indiana, a 2-page, 5-0, per curiam opinion, the Court writes:

A majority of the Court of Appeals reversed Defendant Corey T. Weaver’s conviction for refusing to identify himself to a law enforcement official, finding insufficient evidence to support the conviction. We agree with the dissenting opinion that the evidence was sufficient, and therefore grant transfer and affirm the trial court. * * *

After a bench trial he was convicted as charged, and the trial court imposed a $100 fine for the refusal-to-identify conviction. A majority of the Court of Appeals reversed, finding insufficient evidence that Weaver violated the statute. Weaver v. State, 53 N.E.3d 1225 (Ind. Ct. App. 2016). Judge Altice dissented, and would have affirmed the trial court. Id. at 1229.

We agree with Judge Altice that the evidence was sufficient to support Weaver’s conviction under Indiana Code section 34-28-5-3.5. Accordingly, we grant transfer, see Ind. Appellate Rule 58(A), and affirm the judgment of the trial court.

Posted by Marcia Oddi on Thursday, August 04, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Reprimand recommended against Floyd County Prosecutor Keith Henderson over actions in David Camm case"

Travis Kircher has the just posted story for WDRB Louisville.

The hearings took place in October of 2015 before hearing officer David Pippen. The WDRB story links to a copy of the hearing officer's report. [Update - Here is a copy hosted by the ILB.]

Here is a long list of ILB entries mentioning Mr. Henderson, including a number reporting on the 2015 disciplinary hearing.

From today's story:

LOUISVILLE, Ky. (WDRB) -- The hearing officer of the Indiana Disciplinary Commission has recommended that the Indiana Supreme Court issue a public reprimand against Floyd County Prosecutor Keith Henderson over his actions in the David Camm case.

The recommendation came down on Wednesday, Aug. 3.

Specifically, the recommendation found that Henderson's pursuit of a deal to write a book about the case between Camm's second and third trials violated an ethics rule prohibiting attorneys from negotiating publicity rights arising from representation of their clients.

"The Hearing Officer recommends that Respondent, Keith A. Henderson, receive a public reprimand to make clear to all public attorneys that they should not allow personal interests [to] enter into their public representation," the recommendation concludes.

The hearing officer's recommendation must now go before the Indiana Supreme Court, which must choose whether to accept or reject it.

Posted by Marcia Oddi on Thursday, August 04, 2016
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides one Indiana case today, 2-1

In Glenn Bradford v. Richard Brown (SD Ind., Magnus-Stinson), a 37-page, 2-1, prisoner appeal, Judge Posner writes:

In 1993 Glenn Bradford was convicted in an Indiana state court of a murder and arson committed in Evansville the previous year, and was sentenced to 80 years in prison, where he remains. In 2013 he filed this federal habeas corpus suit, in which he claims that he can prove his innocence. He asks for a new trial, which the district judge denied, precipitating this appeal. * * *

The judgment denying habeas corpus is AFFIRMED.

[p. 12] HAMILTON, Circuit Judge, dissenting. Petitioner Bradford has come forward with powerful evidence of both his innocence and his trial lawyers’ ineffective assistance in dealing with the critical scientific issue—the duration of the fire in Tamara Lohr’s bedroom. The State and the courts upholding Bradford’s convictions have not yet offered a plausible theory to account for the physical evidence of the fire and the time Bradford supposedly set it. Instead, to rebut the scientific foundation for Bradford’s petition for a writ of habeas corpus, the majority has struck out on its own with some modest criticisms based on the majority’s own research and analysis. Those criticisms do not undermine the conclusion that Bradford could not have been the arsonist and murderer. Bradford and his key post-conviction expert also have not had an opportunity to respond to even these modest criticisms. Rather than affirm the denial of relief for Bradford based on these untested critiques, we should order a new trial to test all the relevant evidence. I respectfully dissent. * * *

[p. 36] To sum up, even if Carpenter’s analysis has a couple of mi-nor errors in it, his analysis is the only analysis of the fire’s duration with a scientific and empirical basis. His conclusion appears sound, and the State did not show otherwise. If it is correct, it exonerates Bradford. In a new trial, the State would have the chance to attack the scientific analysis on its merits. Perhaps the State would then be able to show that Carpenter’s work is not to be trusted. Or perhaps it could present, finally, an expert who could explain in reliable scientific terms how a fire could have done the damage this fire did so quickly with-out leaving unmistakable signs of a much hotter fire.

Given the state court’s conclusion that the analysis Carpenter provided was available at the time of the original trial, I would treat the failure to seek and find such critical expert evidence as ineffective assistance of counsel. In the alternative, I would treat this case as appropriate for an actual innocence grant of habeas corpus. We should order issuance of a writ of habeas corpus directing that Bradford be released or retried.

Posted by Marcia Oddi on Thursday, August 04, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (4):

In David Shelton, as Personal Representative of the Estate of Sharon K. Clearwaters v. Kroger Limited Partnership I, a 12-page opinion, Judge Bradford writes:

In this complaint, [Appellant-Plaintiff David Shelton, in his position as personal representative for Sharon Clearwaters’s estate] alleged that in light of other medications which Clearwaters took in connection with a chronic heart condition, Dr. Doe and ABC were negligent in prescribing Clearwaters with Levofloxacin and Kroger, the pharmacy which filled the prescription, was negligent in filling the prescription. Dr. Doe and ABC were eventually dismissed from the underlying trial court action after settling with Shelton.

Following the dismissal of Dr. Doe and ABC, Kroger sought and received permission to amend its answer to Shelton’s complaint to assert a non-party defense as to Dr. Doe and ABC. Kroger also filed a motion for partial summary judgment in which it sought a judicial ruling that it was entitled to a credit or set-off for Shelton’s settlement with Dr. Doe and ABC. Shelton opposed Kroger’s motion, arguing that under the Indiana Comparative Fault Act, Kroger was not entitled to a credit or set-off and that Kroger’s only remedy was to name Dr. Doe and ABC as non-parties and to ask the jury to apportion them fault. The trial court subsequently issued an order granting Kroger’s motion for partial summary judgment. Concluding that the trial court erred in granting Kroger’s motion for partial summary judgment, we reverse and remand the matter to the trial court with instructions.

In Schuchman/Samberg Investments, Inc. v. Hoosier Penn Oil Co. Inc., et al., a 24-page opinion, Judge Altice writes:
In this certified interlocutory appeal, Schuchman/Samberg Investments (SSI) appeals the trial court’s order granting summary judgment in favor of defendants Hoosier Penn Oil Company, Inc., Union Oil Company of California, and BP Corporation North America, Inc. (collectively, the Former Operators) on SSI’s claims under Indiana’s Environmental Legal Actions Statute (ELA) and Petroleum Releases Statute (PRS). Specifically, the trial court ruled that the ELA claim was time-barred and that SSI had not established that it had a right to recover under the PRS. SSI raises the following restated issues on appeal:

1. Did the trial court err in concluding that the ELA claim was subject to the six-year statute of limitation applicable to claims for damage to real property?
2. Did the trial court err in concluding that the statute of limitation applicable to the ELA claim had expired?
3. Did the trial court err in concluding that the PRS did not permit SSI to recover investigation and remediation costs from the Former Operators under the circumstances of this case? * * *

[1] SSI is seeking recovery of costs incurred to remediate its own property. No amount of careful wording or clever analysis can transform what is so plainly a claim for damage to real property into one for contribution. We also note the absurdity inherent in the approach SSI proposes—it would subject an innocent purchaser of contaminated property to a shorter statute of limitation than a property owner who had contributed to the property’s damaged condition. Indeed, purchasers could theoretically extend the applicable statute of limitation by releasing hazardous substances onto their own property. We will not endorse such an illogical result. For all of these reasons, we conclude that SSI’s ELA claim is, in substance, a claim for damage to real property. See Cooper, 899 N.E.2d at 1284 (noting that “[t]he substance of a cause of action, rather than its form, determines the applicability of the statute of limitation”). As such, it is subject to the six-year statute of limitation set forth in I.C. § 34-11-2-7. * * *

[2] Under these facts and circumstances, we conclude that by July 1998 at the latest, SSI had knowledge sufficient to trigger its duty to inquire further in order to determine whether a legal wrong had occurred. See Martin Oil, 908 N.E.2d at 1188-89. Because SSI filed its ELA claim in November 2009, well outside the applicable six-year statute of limitation, the claim is time-barred. * * *

[3] Because we find the language of the PRS clear and unambiguous, we may not engage in judicial construction. * * * We are not at liberty to construe the PRS more broadly than its language allows so as to relieve SSI of the consequences of its failure to file its ELA claim within the applicable limitation period.

Conclusion. For all of these reasons, we conclude that the trial court correctly concluded that SSI’s ELA claim is time-barred and that the PRS does not provide SSI with a right to recover from the Former Operators under the circumstances of this case. Accordingly, we affirm the trial court’s partial summary judgment order on those claims.

In Marcus Zanders v. State of Indiana , a 29-page, 2-1 opinion, Judge Riley writes:
[Issues (ILB emphasis)] (1) Whether the trial court abused its discretion by denying Zanders’ motion for mistrial after the State elicited an improper in-court identification of Zanders by a witness; and
(2) Whether the warrantless seizure of Zanders’ cell phone provider’s records, which included the location data of Zanders’ cell phone, violated his Fourth Amendment Rights. * * *

The day after the J & J Liquor store robbery, Detective Bridges obtained Zanders’ cell phone records from Provider through an emergency request and without a warrant. These records included Zanders’ historical location data, i.e., the detailed records of his calls and cell-site location, as well as his GPS location. The trial court admitted these records at trial over Zanders’ objection. In an issue of first impression, Zanders now contends that the warrantless search of his cell phone’s historical location data as compiled by Provider violated the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. * * *

The extent of information that we expose to third parties has increased by orders of magnitude since the Supreme Court decided Miller and Smith. To now apply a rigorous application of Miller and Smith, as the State advocates, would create a rule that would preclude virtually any Fourth Amendment challenge against government inspection of third-party records. As Warshak suggests, Smith and Miller do not endorse a blind application of the third party doctrine in cases where information, in which there exists clearly reasonable privacy expectations, is recorded by a third party through an accident of technology. See Warshak, 631 F.3d at 287-88. “[I]f a new technology permits the government to access information that it previously could not access without a warrant, using techniques not regulated under preexisting rules that predate technology, the effect will be that the Fourth Amendment matters less and less over time.” Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 215 Harv. L. Rev. 476, 527 (2011). * * *

Continuing in the direction shown by our Supreme Court in Riley and Jones, and this court’s recent pronouncement in Wertz, we hold that Zanders had a reasonable expectation of privacy in the historical location data generated by his cell phone but collected by Provider. * * *

Based on the foregoing, we conclude that the trial court properly denied Zanders’ motion for mistrial. However, we hold that the warrantless seizure of Zanders’ historical location data compiled by his cellular network provider violated his Fourth Amendment Rights. Reversed.

Pyle, J. concurs
Kirsch, J. dissents with separate opinion [that begins, at p. 28] I respectfully dissent. In United States v. Graham, the United States Court of Appeals for the Fourth Circuit, sitting en banc, held that individuals do not have a reasonable expectation of privacy in historical cell-site location records maintained by cell phone providers. No. 12-4659, No. 12-4825, 2016 WL 3068018, at *3 (4th Cir. May 31, 2016). As a result, the government’s acquisition of such data from the defendant’s cellular providers, without a warrant, did not violate the Fourth Amendment to the United States Constitution. [the dissent goes on to cite 3 additional circuits]

In Harold E. Chastain v. State of Indiana , an 11page opinion, Judge Barnes writes:

Chastain urges that we should reverse his intimidation conviction in light of our reversal of intimidation convictions in Blackmon, Casey, and Ransley v. State, 850 N.E.2d 443 (Ind. Ct. App. 2006), trans. denied. * * *

In Roar v. State, 52 N.E.3d 940 (Ind. Ct. App. 2016), a different panel of this court disagreed with the holding and reasoning in Causey. * * *

We conclude that this case is unlike Casey, Ransley, and Blackmon. And, to the extent this case is highly similar to both Causey and Roar, our supreme court has now made it clear that Roar is correct and Causey is not. * * *

We conclude that, as held by this court in Roar and as adopted by our supreme court, a conviction under the intimidation statute should not depend upon a precise parsing of the threatening language used by a defendant or a detailed timeline of when a threat was issued in relation to a prior lawful act. Here, it is clear that Beegle engaged in a prior lawful act, and there was a clear nexus between that act and Chastain’s threat to kill Beegle while pointing a gun at him. Thus, there is sufficient evidence to support the jury’s finding that Chastain committed the crime of intimidation while drawing or using a deadly weapon.

NFP civil decisions today (3):

Alison Truelove v. Graham M. Hennessey (mem. dec.)

Robert Faulds v. Jennifer Faulds (mem. dec.)

Penelope M. Edwards v. Eric M. Edwards (mem. dec.)

NFP criminal decisions today (5):

Samuel Sutton v. State of Indiana (mem. dec.)

Clarence Parsley v. State of Indiana (mem. dec.)

Tara L. Wakefield v. State of Indiana (mem. dec.)

Nikia Hayes v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Thursday, August 04, 2016
Posted to Ind. App.Ct. Decisions

Courts - "Voter fraud is mostly a myth" [Corrected]

From the Washington Post last month in July of 2014 (long before all the court rulings), a story by Christopher Ingraham headed "7 papers, 4 government inquiries, 2 news investigations and 1 court ruling proving voter fraud is mostly a myth."

[More] Attorney Bill Groth, who in advising me of the error, also sent a link to a new article, that additionally includes data from Indiana. The paper is mentioned in this article.

Posted by Marcia Oddi on Thursday, August 04, 2016
Posted to Courts in general

Environment - "Cheap pork comes at a harsh and until now unmeasured cost"

The Chicago Tribune has published a major series on the costs of producing cheap pork in Illinois. In addition to the lead story, there are other long reports on animal abuse, pollution, and "the job." The latter explains at length how "corporations took over the hog business" and the impact that has had on the farmers and their neighbors. A sample:

Under the arrangements that now dominate swine production, "contract" farmers like Seabaugh own the confinement buildings, raise the thousands of pigs inside and manage the millions of gallons of waste produced. But the animals are the property of larger companies that pay these growers a "pig space" fee and dictate conditions of care, including supplying the feed and medications.

Some operators have prospered under the contract system, but the agreements also can lock farmers into a life of grinding toil and leave them barely able to make their bank payments. Seabaugh likens himself to an indentured servant, saying he earns just a living wage for grueling workdays 365 days a year.

"If I wasn't in it so deep, I'd never do it again," he said.

The system can also inflict misery on surrounding communities when financially strapped confinement owners fail to control noxious air emissions and poisonous manure spills. Seabaugh is fighting a suit filed by his neighbors over airborne gases they say damaged their lives.

And there is a video.

Posted by Marcia Oddi on Thursday, August 04, 2016
Posted to Environment

Law - "Indiana businesses call for federal immigration reform"

Stephanie Wang reports today in the Indianapolis Star:

In coordination with states around the nation, Indiana business leaders Wednesday touted immigrants' economic contributions and advocated for comprehensive reform of the federal immigration system.

"We're here today to talk about the positives that immigrants continue to make on our Hoosier economy and also globally," said Patrick Tamm, president of the Indiana Restaurant and Lodging Association. "I think that's the story that oftentimes people don't want to listen to and don't want to realize."

Federal laws, including restrictions and delays on visas, can obstruct the hiring of workers in the farming, home-building and hospitality industries, the leaders of state trade associations said. The rules can also inhibit the retention of talented entrepreneurs and college-educated workers in science, technology, engineering and math fields, which in turn can make it difficult to attract businesses to locate in Indiana.

Later in the long story:
Industries including farming already often face worker shortages, said Megan Ritter, executive director of administration for the Indiana Farm Bureau. Immigrants fill many jobs that native-born Americans aren't showing an interest in, such as manual labor, Wajda added.

Immigration legislation remains a politically divisive issue that Congress hasn't been able to agree — or act — on recently, and it's likely to become a major issue for the next president. * * *

Business leaders said Wednesday they want comprehensive federal reform, as opposed to state-level moves. They are seeking a more efficient legal process to facilitate legal immigration and said they want to get away from the political discourse around immigration.

Posted by Marcia Oddi on Thursday, August 04, 2016
Posted to General Law Related

Wednesday, August 03, 2016

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

In USA v. George Robey (SD Ind., Barker), a 17-page opinion, Judge Kanne writes:

Defendant George Robey operated a modern‐day “chop shop”—he and his associates stole cars, altered their identities using office and computer equipment, and then sold them. He was convicted by a jury, and the district court sentenced him to 110 months’ imprisonment and three years of supervised release.

Robey appeals his conviction and sentence on three grounds. First, he argues that he did not receive a speedy trial, in violation of the Speedy Trial Act and the Sixth Amendment. Second, Robey contends that the district court erred in allowing the government to amend the indictment by dropping nineteen of the twenty‐five charges. Third, he argues that the district court erred at sentencing by finding that Robey’s theft of ten vehicles, in addition to the four vehicles forming the basis of his conviction, constituted relevant conduct. We affirm.

A. Factual Background
From 2009 until 2011, Robey and his associates stole cars from lots around Indianapolis, altered the cars’ identities, and then sold them. As part of this operation, Robey would change a stolen car’s identity by giving it a new Vehicle Identification Number (“VIN”), a unique 17‐digit identification code. Robey would also create counterfeit documents to support a stolen car’s new identity, which included generating a title, insurance card, sales contract, and temporary license plate. Robey created these counterfeit VINs and documents using a computer, scanner, printer, and digital image editing software.

Posted by Marcia Oddi on Wednesday, August 03, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court reprimands Sr. COA Judge Garrard

In In the Matter of the Honorable William I. Garrard, Senior Judge of the Indiana Court of Appeals, a 3-page, 5-0, per curiam opinion in a judicial disciplinary action, the Court concludes :

Respondent and the Commission agree that by being arrested and convicted for Operating While Intoxicated Endangering a Person, Respondent violated Code of Judicial Conduct Rule 1.1 requiring judges to comply with the law, and Rule 1.2 requiring judges to avoid impropriety and to act at all times in a manner that promotes public confidence in the integrity of the judiciary. They further agree that Respondent also violated Rule 1.2 by asking a police officer to “just take [him] home and forget about the drinking and driving” and stating to the officer that he is a senior judge for the Court of Appeals.

In aggravation, the parties agree that Respondent was involved in a property damage accident, and that he was questioned by police but not charged approximately a month prior for another property damage accident (hitting a road sign) and was under the influence of alcohol when police spoke with him at his residence that same night. In mitigation, they agree that Respondent immediately self-reported his misconduct and voluntarily contacted JLAP; that he is compliant with all JLAP requests and regularly attends Alcoholics Anonymous meetings; that he has been fully cooperative with the Commission throughout its investigation; and that he is remorseful for his conduct. Finally, they agree that under the circumstances, the appropriate sanction is a public reprimand. The Court agrees with the parties.

Accordingly, William I. Garrard, Senior Judge of the Indiana Court of Appeals, is hereby reprimanded. This discipline terminates the disciplinary proceedings relating to the circumstances giving rise to this cause. The costs of this proceeding are assessed against Respondent.

Access the 6-page notice of charges here, filed July 15, 2016.

Posted by Marcia Oddi on Wednesday, August 03, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court denies transfer in suit challenging State's retention of newborn blood samples

One of the cases denied transfer by the Indiana Supreme Court last week was A.B. Doe v. State Health Commissioner, a case decided by the Court of Appeals on April 19th.

This April 22nd ILB post quoted a story in CharismaNews, headed "Court Ruling Strikes a Blow Against the Protection of Baby DNA."

This long April 14th story
by Bob Segall of WTHR 13 was headed "Indiana storing blood & DNA of 2 million children without parents' consent." A quote from the story:

State health officials say its collection of dried blood and DNA is currently stored in 666 bankers boxes in a large warehouse in Indianapolis. ISDH agreed to provide 13 Investigates with a photo that shows rows of boxes stacked on shelves inside the warehouse, but it would not allow WTHR to visit the warehouse or say where the warehouse is located.

"Right now we have samples dating back to 1991, so there are approximately 2.25 to 2.5 million samples currently being held," said Bowman. "We do have a lot."

Because the boxes contain blood sample cards for almost all children born in Indiana over the past 23 years, they contain the DNA of native Hoosiers who are toddlers, adolescents, teenagers – even recent college graduates.

According to Bowman, the blood samples have been detached from personal identifying information, which is maintained separately in a state computer database.

Health officials have been storing all of the leftover blood in case it is requested for medical research. ISDH has received several requests but, so far, has not agreed to release the blood samples, realizing it did not obtain proper consent to do so.

Here is the docket for the case.

Posted by Marcia Oddi on Wednesday, August 03, 2016
Posted to Ind. Sup.Ct. Decisions

Courts - And what about Crawford, upholding Indiana's voter ID law?

Harvard prof Noah Feldman addresses that question in this Bloomberg column today that begins:

Are the federal courts revolting against the U.S. Supreme Court by striking down voter identification laws? In 2008, the justices upheld Indiana’s voter ID law, and, in 2013, the court gutted the Voting Rights Act. Together these decisions signaled to the states that they could enact laws that superficially seem like reasonable protections of the voting process but actually make it harder for minorities to vote.

In the last two weeks alone, however, federal courts have used the Voting Rights Act to strike down ID laws in Texas, North Carolina, Wisconsin and North Dakota. The timing of the decisions isn’t coincidental: Courts are rushing to get opinions out in time to set the rules for November’s election. Collectively, the decisions show that the federal courts aren’t giving up the Voting Rights Act for dead -- and that they aren’t taking guidance from the Supreme Court’s conservative majority.

Posted by Marcia Oddi on Wednesday, August 03, 2016
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 2 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (2):

Lynn K.C. Sines v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Wednesday, August 03, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Secret rejected plea agreements would hamper the public’s ability to monitor the work of elected prosecutors and trial court judges"

That is a quote from this long July 27th column on the Hoosier State Press Ass'n site, posted by Steve Key, the HSPA's executive director and general counsel, that begins:

Some trial court judges may be keeping rejected plea agreements secret.

I suggest editors have a conversation with whoever is covering the courts to determine what your circuit and superior court judges are doing in your coverage area.

Inconsistent treatment of plea bargains prior to judge acceptance arose from interpretation of I.C. 35-35-3-3(b). The code states that the content of plea agreements shall not be part of the “official record” of the case unless the judge accepts the agreement submitted by the prosecutor.


The policy argument for secrecy is that public disclosure of the rejected plea agreement could make it more difficult if potential jurors assume the defendant has admitted guilt by signing the agreement the judge rejected.

Does “official record,” mean that the plea agreement is confidential until approved? If rejected, does it remain confidential? If confidential, prosecutors would need to file the plea agreements on green paper, so court clerks know it is a confidential record, not to be shared with reporters or the public.

Fortunately, the Records Management Committee of the Indiana Supreme Court recommended that the Division of State Court Administration send trial court judges a message that plea agreements should not be filed on green paper.

Some judges who read the statute in question equate “shall not be part of the official record” as “confidential.” A message saying the plea agreement isn’t filed on green paper, may not in itself convince those judges that your reporter has the right to inspect and/or copy the plea agreement when it’s filed – before any decision by the judge to accept or reject it.

The newspaper may need to proactively seek a change in the judge’s policy.

Posted by Marcia Oddi on Wednesday, August 03, 2016
Posted to Indiana Courts

Law - Now illegal in Mass. to ask for your salary history in a job interview

Stacy Cowley has the story in this morning's NY Times. It begins:

In a groundbreaking effort to close the wage gap between men and women, Massachusetts has become the first state to bar employers from asking about applicants’ salaries before offering them a job.

The new law will require hiring managers to state a compensation figure upfront — based on what an applicant’s worth is to the company, rather than on what he or she made in a previous position.

The bipartisan legislation, signed into law on Monday by Gov. Charlie Baker, a Republican, is being pushed as a model for other states, as the issue of men historically outearning women who do the same job has leapt onto the national political scene. * * *

By barring companies from asking prospective employees how much they earned at their last jobs, Massachusetts will ensure that the historically lower wages and salaries assigned to women and minorities do not follow them for their entire careers. Companies tend to set salaries for new hires using their previous pay as a base line.

Posted by Marcia Oddi on Wednesday, August 03, 2016
Posted to General Law Related

Tuesday, August 02, 2016

Ind. Gov't. - "Does coal mining have a future in Indiana?"

Jenny McNeece, Vincennes Sun-Commercial, had this interesting story today (reprinted by Indiana Economic Digest). It begins:

Despite a rather precarious future, officials at Vincennes University voted Monday to continue investing in Indiana's coal industry.

The board awarded a $2.07 million contract to Krempp Construction in Jasper for the construction of a 40,000-square-foot training facility on its Gibson County campus at Fort Branch.

Despite a steady industry decline, VU president Chuck Johnson said the university still trains thousands each year in coal mining safety.

And VU officials argue that the facility — the first of its kind in Indiana, perhaps in the Midwest — will have other uses.

Johnson said the underground structure modeled after another at the University of Virginia with large open rooms and corridors to mimic a coal mine setting could be used for homeland security exercises and firefighter training.

The facility would also be applicable to training associated with other kinds of mining, such as limestone and metals.

“There is a whole spectrum of training that could occur here, not just mining,” said Phil Rath, vice-president of finance and government relations.

Some board members, however, had reservations about spending so much on a facility geared toward such a struggling industry. Mines continue to close and consolidate, and fewer and fewer people are entering the industry at all.

Posted by Marcia Oddi on Tuesday, August 02, 2016
Posted to Environment | Indiana Government

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 0 NFP memorandum decision(s))

For publication opinions today (2):

In State of Indiana v. Wallace Irvin Smith, III, an 11-page opinion, Judge May concludes:

The trial court had authority under Ind. Code § 35-50-2-7(d) (2014) to convert Smith’s felony conviction to a misdemeanor because the legislature intended such conversion could be done after sentencing. The terms of Smith’s plea agreement do not preclude the conversion because conversion after sentencing could not have been contemplated by the parties when they entered the agreement. Accordingly, we affirm.
In William A. Connor v. State of Indiana, a 20-page opinion with a separate concurring opinion, Judge Robb writes:
William Connor entered a plea of guilty to criminal deviate conduct as a Class B felony, in exchange for which the State dismissed a charge in a separate case. The trial court sentenced Connor to fourteen years in the Indiana Department of Correction (“DOC”) with four years suspended to probation. Connor appeals his sentence, raising the sole issue of whether it is inappropriate in light of the nature of his offense and his character. Concluding his sentence is not inappropriate, we affirm. * * *

Crone, J., concurs.
Najam, J., concurs in result with separate opinion. [that begins, at p. 15] I concur in the result. I agree that Connor’s sentence should be affirmed, but I cannot join in the majority’s interpretation of Indiana Appellate Rule 7(B). The majority states that we can review and revise a sentence on appeal when the appellant argues that his sentence is inappropriate under either the nature of the offense or his character. See Slip op. at 6-10. That interpretation is contrary to how Indiana’s appellate courts have consistently understood and applied Rule 7(B). And, for this court to address both parts of Rule 7(B) in the absence of an appellant’s own cogent argument, this court will have to become an advocate for the appellant, which is not our role. See, e.g., Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003); see also Ford v. State, 718 N.E.2d 1104, 1107 n.1 (Ind. 1999) (concluding that the appellant forfeited appellate review of his Rule 7(B) issue for failing to state a cogent argument).

NFP civil decisions today (0):

NFP criminal decisions today (0):

Posted by Marcia Oddi on Tuesday, August 02, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Court: Lack of LGBT protections is 'paradoxical'"

Another good editorial today from the Fort Wayne Journal Gazette, this one relating to the 7th Circuit July 28th opinion in Kimberly Hively v. Ivy Tech Community College (see ILB posts here and here). Some quotes:

A ruling last week by a federal appeals court underscores the need for Indiana to upgrade its civil rights laws to include gays, lesbians and transgendered persons.

After the disastrous Religious Freedom Restoration Act of 2015 made it appear Indiana lawmakers were condoning discrimination against the LGBT community, the law’s backers professed shock anyone could support that sort of thing. Gov. Mike Pence argued Hoosiers are such welcoming people that discrimination would never be on their minds.

In this year’s legislative session, an effort to add gays – though not transgendered persons – to the list of groups protected under Indiana’s civil rights law failed even to reach a vote. Proposals like this take time to catch on, advocates were advised.

But the ruling by the 7th U.S. Circuit Court of Appeals Thursday upholding dismissal of a lesbian’s lawsuit against Ivy Tech Community College made it clear that LGBT rights aren’t just a theoretical issue for civics classes to chew on. * * *

[F]ederal law doesn’t include protections against discrimination on the basis of sexual orientation, either. In other words, unless there are local or state protections that apply, it’s OK to discriminate, the court said.

The court noted the legal landscape is changing rapidly. * * *

“Perhaps the writing is on the wall,” the 7th Circuit panel added in its opinion. “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.”

Posted by Marcia Oddi on Tuesday, August 02, 2016
Posted to Ind. (7th Cir.) Decisions | Indiana Government

Courts - "Turning the Tide on Voting Rights"

That is the title to this op-ed piece this morning in the NY Times, authored by Richard L. Hasen, professor of law and political science at the University of California, Irvine.

Prof. Hasen is among those on the Diane Rehm show this morning, Aug. 2nd, talking about "Voter Access In 2016: Latest On Restrictions Across The Country."

Posted by Marcia Oddi on Tuesday, August 02, 2016
Posted to Courts in general

Ind. Courts - "Two former IPS employees sue for wrongful termination"

Chelsea Schneider and Marisa Kwiatkowski report today in the Indianapolis Star:

Two Indianapolis Public Schools administrators fired over their handling of sexual abuse allegations involving a counselor are suing the district in federal court for wrongful termination.

Deb Leser, former IPS director of student services, and William Jensen, a former assistant principal, were fired from the district in June amid fallout over school officials not immediately reporting allegations against then-counselor Shana Taylor to the Indiana Department of Child Services.

In separate complaints, Leser and Jensen contend IPS provided “overly vague” information to support allegations that they violated district policy. That limited Leser and Jensen’s ability to counter the claims against them – violating their due process rights, argued their attorney Kevin Betz.

In Leser’s case, her attorneys noted that IPS posted a job opening for her position prior to her official termination. The district’s actions show it “had already clearly made the decision to terminate Ms. Leser’s employment if IPS was already seeking another individual for Ms. Leser’s position," federal court records state.

Jensen’s complaint argues district officials refused to reschedule his termination hearing before the IPS School Board even though he couldn’t attend. Jensen had “longstanding” plans to visit his ill brother, according to court records. * * *

At least seven IPS officials knew about allegations against Taylor as early as Feb. 17, but no one reported them to the Indiana Department of Child Services until Feb. 23 — six days later. Court records indicate officials didn't report the allegations until after they learned that a news outlet was aware of them.

ILB: Here are the lawsuits, filed July 29th in the SD Ind., presiding judge Tanya Walton Pratt:I've downloaded from PACER and linked the latter of the two.

Posted by Marcia Oddi on Tuesday, August 02, 2016
Posted to Indiana Courts

Monday, August 01, 2016

Ind. Gov't. - "Federal audit slams Floyd Co. Sheriff's Dept."

The Floyd County, Indiana Sheriff's Department was the subject of a Louisville Courier Journal story reported late last week by Matthew Glowicki. It begins:

The U.S. Department of Justice criticized the Floyd County Sheriff's Department in a recent audit for its accounting practices involving federal money, including not having receipts for nearly $120,000 spent on informants.

The Sheriff's Department was audited for a period of 2012 through 2015 on its use of equitable sharing revenues, which is money from the sale of forfeited assets that are seized in some criminal investigations. During that period, the sheriff's department received $577,877 from the Department of Justice's shared revenues.

More: "The audit, released this week, was conducted by the DOJ's Office of the Inspector General." From the executive summary:
The objective of the audit was to assess whether the FCSD properly accounted for equitable sharing funds and used such revenues for allowable purposes defined by applicable guidelines. Our testing revealed that the FCSD failed to comply fully with DOJ guidelines for using equitable sharing funds. Specifically we found:
  • The FCSD does not have written procedures for administering equitable sharing funds.
  • During the period under review, the FCSD utilized $124,220 in equitable sharing funds to pay informants. We found that the FCSD could not provide adequate documentation to support $119,320 of these expenditures.
  • Floyd County has not adequately responded to recommendations in its FY 2012 Single Audit Report, causing the Department’s primary granting agency to designate Floyd County as high-risk. Moreover, Floyd County submitted its FY 2012 and FY 2013 Single Audit Reports late, and as of May 2016, it has not submitted its 2014 Single Audit Report, which was due in February 2016.

Posted by Marcia Oddi on Monday, August 01, 2016
Posted to Indiana Government

Courts - Many big election law decisions last Friday [Updated]

Jonathan H. Adler of The Volokh Conspiracy has a quick recap, pointing to Rick Hasen's Election Law Blog for more.

"Appeals court strikes down North Carolina’s voter-ID law" is the heading of a long Washington Post story reported by Robert Barnes and Ann E. Marimow on Friday. Some quotes:

Voting rights activists scored legal victories in key presidential election states Friday, the most important being a federal appeals court ruling that North Carolina’s Republican-led legislature enacted new voting restrictions in 2013 to intentionally blunt the growing clout of African American voters.

The unanimous decision by a three-judge panel of the U.S. Court of Appeals for the 4th Circuit was an overwhelming victory for the Justice Department and civil rights groups. Election law experts consider North Carolina’s voter law one of the nation’s most far-reaching.

In Wisconsin, where one federal judge already had eased restrictions on voter-ID requirements, a second judge found that additional elements of the law passed by the legislature and signed by Gov. Scott Walker (R-Wis.) were unconstitutional.

U.S. District Judge James D. Peterson suggested he would strike the entire law if he were not bound by the Supreme Court’s decision that states may use properly written voter-ID laws to guard against voter fraud.

“The evidence in this case casts doubt on the notion that voter ID laws foster integrity and confidence,” Peterson wrote. “The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities. To put it bluntly, Wisconsin’s strict version of voter ID law is a cure worse than the disease.” * * *

The decisions are likely to prompt the states to ask the Supreme Court for emergency action. But it is far from clear whether the eight justices, evenly divided between conservative and liberal, would get involved. The proximity of an election is often reason for justices to let an appeals court ruling stand.

There is much more worth reading in this long story.

The NY Times
had a long July 31st story by Michael Wines on "Efforts by Counties and Towns to Purge Minority Voters From Rolls." A sample:
A June survey by the NAACP Legal Defense and Educational Fund found that governments in six former preclearance states have closed registration or polling places, making it harder for minorities to vote. Local jurisdictions in six more redrew districts or changed election rules in ways that diluted minorities’ votes.

Alabama moved last year to close 31 driver’s license offices, almost all in rural areas with large African-American populations, as a cost-saving measure. After lawsuit threats and complaints that the closings would severely curtail local voter registration, the state chose to open the offices at least one day a month. Gov. Robert J. Bentley, a Republican, has strongly denied that the closings were racially motivated. * * *

The Republican majority in North Carolina’s General Assembly redrew the political districts last year in Wake County, whose main city is Raleigh, concentrating black voters in the city center into a single voting district. (A three-judge panel of the United States Court of Appeals for the Fourth Circuit ruled that map unconstitutional.) In Pasadena, Tex., officials eliminated two District Council seats in largely Hispanic areas in 2014 and replaced them with at-large seats chosen largely by white voters. Hispanic voters have filed a federal lawsuit seeking to undo the change. * * *

While those changes took place in states that once were wholly or partly under Justice Department supervision, other restrictions have been adopted by mostly Republican legislatures and election officials in states never cited for voting discrimination. Wisconsin’s unusually stringent photo ID law is the object of a federal lawsuit. A South Dakota county is in litigation over equal access to its polling places for Native Americans.

[Updated at 4:11 pm] See also this long story,"Judge strikes down Wisconsin voter ID, early voting laws," by Patrick Marley and Jason Stein of the Milwaukee Journal Sentinel.

Posted by Marcia Oddi on Monday, August 01, 2016
Posted to Courts in general

Ind. Gov't. - "Wind advocates seeking to loosen restrictions"

Updating a very long list of earlier ILB posts on wind farms and wind turbines and the laws/ordinances regulating them, the Fort Wayne Journal Gazette has this important editorial today:

Motorists traveling east on U.S. 30 see massive wind turbines long before they reach the Ohio border. Timber Road II wind farm began operating in Paulding County, Ohio, in 2011. But turbine setback restrictions approved by the state have hampered development of new large wind farms, including additional turbines in Allen County’s neighboring county.

The same opposition that spurred the Ohio law can be found in Indiana, where some county officials are taking steps to make their communities unattractive to wind farm developers, with setback restrictions or outright bans. Officials in Howard and Tipton counties both amended setback ordinances recently, according to the Kokomo Tribune.

Rural residents who don’t want the massive turbines in their backyards increasingly find wind farm developers aren’t the only force they must counter, however. As the push for renewable energy grows, corporations are joining the fray. Amazon.com is touting 2,000 jobs it will bring to Ohio as it pushes for restrictions to be lifted there.

Columbus Business First reported earlier this year that Amazon wants to harness energy generated by new turbines in Paulding County to power its operations in a central Ohio data center.

“Unfortunately Ohio’s wind turbine setback standards enacted a little more than two years ago have significantly diminished the attractiveness to further investments in wind generation in Ohio,” the chief lobbyist for the Seattle-based company told an Ohio House Committee in May. “In fact, the current setbacks have acted as a moratorium of sorts on new wind development.” Amazon has said it will generate some of the power for its planned $1.1 billion data center in central Ohio at a new Amazon Web Services Wind Farm in Indiana’s Benton County, near the Illinois border.

Amazon has committed to eventually powering all of its facilities with clean energy. Its proposed wind farm in Paulding County is a partnership with EDP Renewables to build the 100-megawatt Amazon Wind Farm US Central near the Indiana border. Next May is the targeted operation date for the Timber Road expansion. To accommodate the project, some Ohio lawmakers are pushing “wind corridor” legislation to supersede current turbine setback restrictions.

Indiana property owners and elected officials should note the drama playing out to the east. They must be prepared to balance energy and economic interests with property rights as wind energy development grows.

Posted by Marcia Oddi on Monday, August 01, 2016
Posted to Environment | Indiana Government

Ind. Decisions - Transfer list for week ending July 29, 2016

Here is the Clerk's transfer list for the week ending Friday, July 29, 2016. It is two pages (and 21 case) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, August 01, 2016
Posted to Indiana Transfer Lists

Ind. Courts - Rare Murder Trial This Week at Brown County Courthouse

"Slam dunk or rush to judgment? Messel trial jurors will decide" is the heading of a $$$ July 31 story in the Bloomington Herald-Times. A few quotes:

NASHVILLE — There was no mystery to solve, Brown County Prosecutor Ted Adams said, when it came to figuring out whom to charge with killing Hannah Wilson in the spring of last year, just two weeks before she was to graduate from Indiana University. Investigator's found Daniel Messel's cellphone on the ground beneath Wilson's beaten body.

And when police tracked Messel down at home, he was leaving, carrying a clear trash bag containing jeans, shoes and a T-shirt, all stained with the 22-year-old college student's blood. Tests later confirmed it was Wilson's hair and blood inside the accused killer's 2012 Kia Sportage, the prosecutor said. An IU tunic inside the SUV had her blood on it as well.

"A cellphone was the key ... then the clothing in the trash bag," Adams told potential jurors this week during a two-minute synopsis of the case. "There was no mystery." * * *

"Daniel Messel was on their radar after the cellphone was found, and he was under arrest for murder a mere 13 hours later," [defense attorney Dorie] Maryan said. "Was this good police work, or a rush to judgment that caused them to disregard leads that would have proved him innocent?" * * *

Wilson was out partying during Little 500 Weekend in 2015 when friends decided she was too intoxicated and paid a cab driver to take her to her house on East Eighth Street. Police say she arrived there, but went missing soon after.

Her body was discovered hours later in Brown County. That afternoon, when Wilson's friends reported her missing to police, a detective at the scene texted a picture of the unidentified victim to the officer taking the report, and Wilson's identity was confirmed.

An Indianapolis Star story Sunday, reported by Madeline Buckley, is subheaded: "The county prepares for only its third murder trial in recent decades." A few quotes:
The Brown County Courthouse is an unassuming, red-brick building with a tidy patch of flowers near the door. It stands in the middle of Nashville, Ind., a town of 1,000 that seems frozen in time. Candy shops and stores that sell homemade fudge fill out the brown wooden buildings that line downtown. An old-fashioned train takes sightseers through Main Street, advertising historic tours. * * *

Thousands mourned [Hannah] Wilson, and a mountain of media coverage followed the killing. Her death also brought to the surface other dark moments for IU students: the 2012 disappearance of Lauren Spierer and the 2000 murder of Jill Behrman.

Brown Circuit Judge Judith Stewart, the sole judge in Brown County, besides a magistrate, on Thursday began the long process of questioning 150 potential jurors, one by one, to determine whether their judgments of the case have been swayed by intensive pretrial publicity.

"It's stuck in my mind that his cellphone was found," Juror No. 154 told Stewart on Thursday.

"Anyone who is charged with a crime is presumed innocent," Stewart responded. "Could you disregard what Facebook said about the cellphone?"

The woman shrugged. Then she voiced doubt that she could forget what she read.

"You are excused," Stewart said courteously.

Next came an older man. He wore a light denim jacket with jeans and had a shock of white hair. The juror made those in court laugh when he said his wife had formed an opinion on the murder case, but he hadn't.

"Can you disregard your wife's opinion?" the judge asked.

The man chuckled and said yes. Stewart asked him to return for the final round of jury selection.

On Monday, Stewart will whittle down those who say they can view the case with a clear and unbiased mind to a panel of 12 jurors and two alternates. Attorneys expect opening arguments in the case to begin Tuesday. * * *

The case marks the first murder trial Ted Adams will tackle as Brown County prosecutor. Attorneys say the trial likely will be expensive and could cause a backlog of other cases. It’s a disruptive and time-consuming experience for the three prosecutors who work in the office; two are handling the trial, and the third is addressing everything else.

Posted by Marcia Oddi on Monday, August 01, 2016
Posted to Indiana Courts

Ind. Courts - When e-filing will come to your county

Check this Indiana Courts list of dates for voluntary and mandatory e-filing.

E-filing in Franklin, Rush and Union counties now available (as of August 1); mandatory September 30.

Posted by Marcia Oddi on Monday, August 01, 2016
Posted to E-filing

Ind. Courts - "Crown Point City Court ordered out of historic courthouse"

From the NWI Times this weekend, a story by Phil Wieland - some quotes:

CROWN POINT — The City Court, which has used a courtroom in the historic Lake County Courthouse for 40 years, has been asked to vacate the premises by the end of August.

City Judge Kent Jeffirs said he was forwarded a letter July 18 from the Lake Court House Foundation giving notice of the termination of the lease. The court pays $1,000 a month for the use of the third-floor court and a small office for the court staff. Court sessions are held each Tuesday for cases involving local traffic tickets or things like small time thefts or battery with no serious injury.

"It was quite a surprise," said Jeffirs, who has been the judge for 13 years. "You would think a community court and a community building would warrant some discussion if they are planning on changing. I have not received any calls or notifications from the foundation. I'm disappointed they took action without talking to the mayor or the judge."

From later in the story:
An effort was made a couple of years ago on the council to eliminate the court and have all the cases sent to the county courts. Councilman Robert Clemons said he and former Councilman Mark Schweitzer opposed it and succeeded in keeping it with the help of the judge, who showed the court pays for itself. The city would keep less of the money if the cases are handled by the county.

"Every year it seems we have a big to-do with someone on the council (over the court)," Clemons said. "Our officers can go there much easier, and we keep the money. It's ironic this comes up during budget time. I've got the support of the mayor, and I think I have the support of the council to keep it."

City Attorney David Nicholls said, "The court is a creation of the city by ordinance, so it is up to the city to provide the court its space. The legal department has gotten along well with the court and the judge, and the convenience of having it right in town is a definite benefit."

Jeffirs said, "I thought we were doing a service to the community by paying $1,000 a month to use the court. Apparently they don't need that money anymore. It amazes me the foundation that is supposed to be there for the community doesn't want the community court."

Posted by Marcia Oddi on Monday, August 01, 2016
Posted to Indiana Courts

Law - "Debt Collectors’ Abuses Prompt Consumer Agency to Propose New Rules"

On May 5th the ILB posted quotes from a NYTimes Dealbook column headed "Consumer Agency Moves To Assert Bank Customers’ Right To Sue," including:

The new rules would mean that lenders could not force people to agree to mandatory arbitration clauses that bar class actions when those customers sign up for financial products.
Late last week Stacy Crowley reported in Dealbook that [ILB emphasis]:
Under the proposed regulations, which will undergo a lengthy review process, debt collection companies will have to more fully document the debt they are trying to collect, make it clear how a consumer can dispute the debt, and observe state statutes of limitations that bar them from legally pursuing older debts — all safeguards that are frequently flouted, according to the Consumer Financial Protection Bureau, the federal agency that plans to put forth the new rules on Thursday.

The regulations also take aim at the stereotype of the harassing debt agency: Collectors would be barred from trying to contact people more than six times in a week. And, after a debtor dies, the collectors would have to wait 30 days before contacting family members about paying up. * * *

The debt collection proposal is the third major initiative to come out of the consumer bureau this year. In May, it proposed a rule to prohibit mandatory arbitration clauses and to restore customers’ rights to bring class-action lawsuits against companies. Last month, it released a draft of tighter rules covering payday lending that are aimed at keeping low-income people out of an endless cycle of ballooning debt.

A sidebar to Thursday's article summarizes the CFPB's proposed rules.

Here is the CFPB website.

Posted by Marcia Oddi on Monday, August 01, 2016
Posted to General Law Related

Ind. Decisions - Upcoming oral arguments this week and next

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

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

Webcasts of Supreme Court oral arguments are available here.


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

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

Thursday, August 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 Monday, August 01, 2016
Posted to Upcoming Oral Arguments