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Friday, September 30, 2016

Ind. Courts - Dunkirk City Court judge suspended, effective immediately, following felony battery charge

The Supreme Court has issued this news release:

The Indiana Supreme Court has imposed an interim suspension on Judge Tommy D. Phillips, II of Jay County Dunkirk City Court, effective immediately. The Indiana Commission on Judicial Qualifications filed a “Notice of Criminal Charges and Request for Suspension” with the Indiana Supreme Court on September 29, 2016. After reviewing the request, the Indiana Supreme Court ordered [here is the 9/30/16 order] Judge Phillips suspended with pay, as required by court rule. Judge Phillips’ interim suspension remains in effect until further order of the Court or final determination of any disciplinary proceedings, if any, that may arise from the criminal charges.

The Notice, case number 38S00-1609-JD-517, was filed by the Indiana Commission on Judicial Qualifications when the Commission learned a special prosecutor had filed a Level 6 Felony charge of Battery Against a Public Safety Official against Judge Phillips. According to Admission and Discipline Rule 25(V)(A) of the Indiana Rules of Court, “A judicial officer shall be suspended with pay by the Supreme Court. . .upon the filing of an indictment or information charging the judicial officer in any court in the United States with a crime punishable as a felony under the laws of Indiana or the United States.”

Tommy D. Phillips, II, who is not an attorney according to the Commission request, was appointed to the bench and began his term October 3, 2000. Any questions related to the criminal charges filed in Jay County should be directed to Judge Phillips’ attorney, Jay County Police, or the special prosecutor.

The Indiana Supreme Court will arrange for a judge in Dunkirk City Court.

Posted by Marcia Oddi on Friday, September 30, 2016
Posted to Indiana Courts

Ind. Decisions - Interesting facts in federal summary judgment action involving broken casket handle

In Giovanni v. Matthews International Corp., an Order on defendant's motion for summary judgment, Judge McKinney writes:

Defendant Matthews International Corp. (“Defendant Matthews” or “Matthews”) has moved for summary judgment on the claims brought against it by Plaintiff Richard M. Giovanini (“Plaintiff Giovanini” or “Giovanini”). Dkt. No. 33. For the reasons stated herein, the Motion is DENIED.

Defendant Matthews is a manufacturer of caskets. Plaintiff Giovanini is the owner and operator of a funeral home in Clinton, Indiana. Prior to a funeral mass at a local Catholic Church one of the handles of th e cas ket broke upon its removal from the hearse. With the aid of a special cart, the casket was transported into the Church for the funeral and placed back into the hearse for the procession to the cemetery . Upon arrival at the cemetery , no special cart was available. Plaintiff G iovanini offered the decedent’s family an intact casket for burial at a later time. The family declined the offer and asked for the burial to proce ed apace. Plaintiff Giovanini joined as a pall bearer and issued new instructions that the casket be carried by grasping its underside. As Plaintiff Giovanini and the rest of the pall bearers procee ded to the grave site, with Plaintiff Giov anini assisting to carry the casket , he twisted his ankle. He alleges that his injury was the prox imate result of the defect in the casket handle. Defendant Matthews now brings this summary judgment mo tion alleging that Plaintiff Giovanini has not shown sufficiently that the casket was manufactured by it, that he cannot establish proximate cause as a matter of law , and that the injury suffered by Plaintiff Giovanini was not a natural and probable consequence that should have been for eseen or anticipated by Matthews. * * *

The Court now DENIES the Motion for Summary Judgment. Both proximate cause and foreseeability are issues for a jury in this case. There is no real dispute that Matthews manufactured the casket at issue. With respect to causation, reasonable jurors might conclude that a casket manufacturer should for esee that proce eding to carry a casket to the grave site d espite its broken handle is not unreasonable. A reasonable jury might also conclude that Plaintiff Giovanini’ s injuries were the proximate result of the defect in the casket handle. In short, the issues raised by the Plaintiff’s Complaint are for a jury to decide.

Posted by Marcia Oddi on Friday, September 30, 2016
Posted to Ind Fed D.Ct. Decisions

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

For publication opinions today (4):

In Duane Herron v. State of Indiana, an 11-page opinion, Judge Crone writes:

Duane Herron appeals his conviction for level 6 felony attempted obstruction of justice, following a jury trial. Herron’s central assertion on appeal is that the State was unable to present sufficient evidence to establish that he committed attempted obstruction of justice as charged because the State charged him under the wrong part of the obstruction of justice statute. We restate the dispositive issue as whether the trial court erred in denying Herron’s motion for directed verdict on that basis. Concluding that the trial court erred, we reverse Herron’s conviction for attempted obstruction of justice. * * *

Accordingly, we agree with Herron that “the person” as used in Indiana Code Section 35-44.1-2-2(a)(2)(C) refers only to a person absenting himself or herself from a proceeding or investigation to which the person has been legally summoned. Because the State chose to charge Herron pursuant to subpart (a)(2)(C), and because there is no evidence that Herron attempted to absent himself from his criminal proceeding, the record is devoid of evidence on one or more elements of the charged offense. Therefore, the trial court erred in denying Herron’s motion for a directed verdict. His conviction for attempted obstruction of justice is reversed.

In Robert Kadrowvach v. State of Indiana , a 6-page opinion, Judge Crone writes:
Robert Kadrovach appeals his conviction for class A felony attempted murder resulting from a stabbing incident in downtown Indianapolis. He asserts that the trial court fundamentally erred in instructing the jury as to the mens rea necessary to convict him of attempted murder. Concluding that he has failed to establish fundamental error, we affirm. * * *

Given that Instruction 8 specifically emphasized the intent to kill requirement, we believe that the instructions as a whole were sufficient to indicate that “intent to kill” was required in order to convict Kadrovach of attempted murder. As a result, we do not believe that the jury was misled by the challenged jury instructions. Finding that Kadrovach has failed to establish that he was deprived of a fair trial as a result of the challenged jury instructions, we conclude that the error did not rise to the level of fundamental error. Accordingly, we affirm.

In Jason L. Bloomfield v. State of Indiana, a 12-page opinion, Judge Crone writes:
Jason L. Bloomfield appeals his convictions for two counts of level 5 felony battery of a public safety official resulting in bodily injury and one count of level 6 felony battery of a public safety official. He asserts that the evidence is insufficient to support the jury’s rejection of his insanity defense. We conclude that there was conflicting expert evidence as to whether Bloomfield was able to appreciate the wrongfulness of his actions at the time of the offenses and whether his mental state at the time of the offenses was the result of a mental disease or defect or voluntary intoxication. Thus, there was sufficient evidence for the jury to find that Bloomfield was legally sane when he committed the offenses. Accordingly, we affirm.
In Ricky R. House, Jr. v. State of Indiana, a 10-page opinion, Judge Barnes writes:
Ricky House appeals his convictions for three counts of Level 1 felony rape, two counts of Level 5 felony criminal confinement, and one count each of Level 5 felony kidnapping, Class A misdemeanor battery resulting in bodily injury, and Class A misdemeanor pointing a firearm. We affirm.

House raises one issue, which we restate as whether the trial court properly excluded evidence of the victim’s prior drug usage.

NFP civil decisions today (5):

Janet L. McDaniel v. Mark L. McDaniel (mem. dec.)

In the Matter of the Marriage of Frederick Soskel v. Jo Betty Ingram (mem .dec.)

In re the Termination of the Parent-Child Relationship of E.R. (minor child) and J.R. (father) v. The Indiana Department of Child Services (mem. dec.)

In re the Termination of the Parent-Child Relationship of J.D. and T.M. (minor children) and S.B. (Father) and T.W. (Father) v. Indiana Department of Child Services (mem. dec.)

In re the Termination of the Parent-Child Relationship of: A.H. & P.H. (Minor Children) and T.S. (Mother) and D.H. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (6):

W.B., III v. State of Indiana (mem. dec.)

J.B. v. State of Indiana (mem. dec.)

Billy Campbell v. State of Indiana (mem. dec.)

Myron Tools v. State of Indiana (mem. dec.)

Shane Kervin v. State of Indiana (mem. dec.)

William C. McCollum v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, September 30, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Prosecutors concerned about changing Indiana bail, pretrial release rules"

From the Evansville Courier & Press, a story this morning by Mark Wilson reports:

Vanderburgh County Prosecutor Nicholas Hermann on Thursday said he is concerned reforms to Indiana's system for setting bail will jeopardize public safety. * * *

"I don't have a problem with people being out of jail. I do have a problem with our community being less safe," Hermann said. * * *

Hermann and Elkhart County Prosecutor Curtis Hill on Thursday held a press conference with local law enforcement representatives to call attention to aspects of the rule that concern them.

Currently, judges determine bail for various offenses using considerations laid out by the legislature in the state's criminal code.

The purpose of cash bail, Hermann said, is to ensure defendants show up at trial and protect public safety balanced with the accused's presumption of innocence.

"What this rule does is it substantially changes that balance in favor of defendants," Hermann said.

Hill said he did not believe there was a need for the reform, which he called a "catch and release program."

"This is a very important issue for the public to get its arms around," Hill said. "What's broke about the current system?"

The rule says that trial judges are to use evidence-based risk assessments to decide if a person should be released pending trial or if a cash bail should be set. However, it doesn't specify what those tools should be.

Hermann said the reforms seem to rely mostly on the judge's interview with the arrested person with no victim input.

"It's a subjective test that relies solely on what the defendant tells you," Hermann said. "I know we are pushing for these evidence-based programs but I am somewhat weary of them because they are somewhat subjective."

In addition, Hermann pointed out that the rule bans an arrested person's statement or evidence derived from it to be used against the person in any criminal or civil proceedings.

Hermann and Hill both said the rule could have far-ranging affects [ILB: sic] including possible delays in trials, risking a person will commit more crimes, and increasing costs and workloads for probation departments if they become involved in pretrial risk assessments.

ILB: For more on the recently instituted Indiana bail-reform process, start with this post from Sept. 9th.

Posted by Marcia Oddi on Friday, September 30, 2016
Posted to Indiana Courts

Environment - "State taking input on coal ash lagoons"

The ILB has a lengthy list of posts on the issue of coal ash, dating back to the ILB's start. This post, from Feb. 10, 2004, begins:

"More than 130 groups across the nation, including some from Indiana and Kentucky, petitioned the federal government yesterday to stop allowing waste ash from coal-fired power plants to be dumped where it can come into contact with drinking water supplies." This was the lead to this story today in the Louisville Courier-Journal.
The post also reports on Beverly Shores and The Pines along Lake Michigan.

The most recent post is this AP story from June 20th that begins:

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

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

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

Last evening, Kara Kenney and Audra Levy of WRTV6 reported on another aspect of the issue. Their long story begins:
At the urging of environmental groups, the Indiana Department of Environmental Management has extended the deadline for public comment on a controversial plan to close coal ash lagoons at Indianapolis Power and Light’s Harding Street plant.

IDEM set a new deadline for December 5 at the request of Earth Justice, Sierra Club, and the Hoosier Environmental Council, who argued IPL failed to adequately engage the public on the issue.

IPL has filed a plan to close its coal ash lagoons at its Harding Street plant, however environmental groups say the plan does not address underlying groundwater contamination.

The Harding Street plant burned coal up until February 2016, and the byproducts are stored in unlined coal ash lagoons.

Homeowners and environmental groups are concerned c oal ash is contaminating the aquifer underneath the lagoons and may spread to the groundwater, which supplies water to parts of the city including Sunshine Gardens.

Posted by Marcia Oddi on Friday, September 30, 2016
Posted to Environment

Thursday, September 29, 2016

Ind. Decisions - Tax Court issues one today

In SBP Petroleum, Inc. v. Indiana Department of State Revenue, a 6-page opinion, Judge Wentworth writes:

The Indiana Department of State Revenue has requested that the Court dismiss 2SBP Petroleum, Inc.’s case for failing to diligently prosecute the matter. In the alternative, the Department asks the Court to compel SBP Petroleum to respond to its discovery requests. The Court finds that this case should be dismissed.

Posted by Marcia Oddi on Thursday, September 29, 2016
Posted to Ind. Tax Ct. Decisions

Ind. Courts - "Ceremony Today to Name the Sarah Evans Barker Courtroom"

The ceremony is today at 4:00 PM. Here is the news release, including a photo of the gorgeous courtroom:

Judge Barker is only the third judge in the 111 year history of the courthouse to occupy what was formerly known as Courtroom 216 on a full-time basis. In September 1905, the travelling United States Circuit Court for the District of Indiana originally and sparingly used the courtroom, until the abolition of the circuit courts by Congress in 1911. From 1911 until 1925, the courtroom sat vacant, as the sole judge who served the U.S. District Court for the District of Indiana occupied the companion courtroom down the hallway. That courtroom is named in honor of the late Judge William E. Steckler.

In 1925, the District of Indiana received authorization for a second judgeship, which position was filled by Judge Thomas W. Slick, who occupied Courtroom 216. That arrangement lasted only three years, due to Congress’s decision in 1928 to divide the District of Indiana into separate Northern and Southern Districts. The new U.S. District Court for the Southern District of Indiana was authorized a single judgeship, and that judge, Robert C. Baltzell, continued to occupy the Steckler Courtroom. Judge Slick moved to the Northern District of Indiana, leaving Courtroom 216 vacant once more. The courtroom remained empty until a new judgeship was created 1954, which was filled by the appointment of Cale J. Holder. Judge Holder's term extended over nearly 30 years, until his death in 1983.

In March of 1984, President Ronald Reagan, with the support of then-United States Senators from Indiana Richard G. Lugar and Dan Quayle, appointed Judge Barker to the bench to fill the vacancy created by Judge Holder’s death. Judge Barker became the first woman appointed as a federal judge in Indiana and immediately took up occupancy of the courtroom the now and forevermore bears her name.

Posted by Marcia Oddi on Thursday, September 29, 2016
Posted to Indiana Courts

Ind. Courts - "Lake Circuit Court judge steps down Oct. 15"

Bill Dolan reports in the NWI Times:

CROWN POINT — Lake County Circuit Court Judge George Paras is resigning Oct. 15 after six years on the bench.

Paras, 68, who lost his re-election bid last spring to Highland attorney Marissa McDermott, said Thursday he is leaving office 40 days before his term expires to attend to personal matters he didn't wish to disclose. "I need the full time to do it. I don't want it to interfere with my job," Paras said early Thursday. * * *

The Indiana Supreme Court Wednesday published an order naming Senior Judge Thomas W. Webber Sr. to preside over the Circuit Court until voters fill the vacancy in the Nov. 8 general election with either McDermott, the Democratic candidate, or Douglas M. Grimes, of Gary, the Republican.

The winner is set to take office Jan. 1, 2017. Webber temporarily filled vacancies in the Lake Juvenile Court in 2013 and Lake Superior Court Civil Division in 2014.

The race for circuit court dominated the political landscape last spring.

Factions of the Democratic party had to choose between Paras, who had the support of Sheriff John Buncich, the county's party chairman, or McDermott, the wife of Hammond Mayor Thomas McDermott Jr. The mayor said it was a struggle between the party's younger and older wings. * * *

The circuit court, which presides over thousands of civil disputes ranging from constitutional matters and elections, to domestic law, is the only countywide judicial office that remains in partisan politics, separate from the Lake Superior Court, where merit selection of judges reigns.

Posted by Marcia Oddi on Thursday, September 29, 2016
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides two today, including Justice Slaughter's first opinion, a dissent

In James F. Griffith v. State of Indiana, a 13-page, 5-0 opinion, Chief Justice Rush writes:

James Griffith was convicted of murder, robbery, and conspiracy to commit robbery, and sentenced to life imprisonment without possibility of parole (“LWOP”). On direct appeal, he claims (1) he was denied due process in discovery; (2) he was denied his right to a speedy trial; (3) the trial court abused its discretion in denying his requests to hire at public expense expert witnesses in DNA and blood spatter; (4) the trial court committed fundamental error by allowing witnesses to remain in the courtroom during opening statements; (5) the trial court abused its discretion by allowing the State’s entomologist to testify; (6) the trial court admitted evidence in violation of the Federal and Indiana Constitutions; and (7) insufficient evidence supported his convictions. Finding that Griffith’s claims lack merit, we affirm the trial court in all respects.
In Cynthia Bell v. State of Indiana, a 10-page, 3-2 opinion, Justice David writes:
Indiana Code § 35-38-2-2.3(a)(6) allows a trial court to order a defendant to pay restitution to a victim as a condition of probation, but the defendant’s ability to pay must be considered before the order to pay restitution is entered. In the present case, we find that the trial court abused its discretion because the evidence before the court was insufficient to conclude defendant had the ability to pay. As such, the ordered restitution is vacated. * * *

Under Ind. Code § 35-38-2-2.3(a)(6), a trial court may order restitution as a condition of probation, even if the defendant has been found indigent for other purposes. However, the trial court must fully assess a defendant’s actual ability to pay when ordering restitution. Because the trial court heard testimony as to Bell’s inability to pay, did not make further inquiry, and heard no rebutting evidence as to Bell’s ability to pay, the restitution order was an abuse of discretion. As such, we vacate the trial court’s order for restitution. Rush, C.J. and Rucker, J., concur.

Slaughter, J., concurs in part, dissents in part with separate opinion in which Massa, J., joins.

Slaughter, J., concurring in part, dissenting in part. I agree with the Court that the temporary trial judge abused his discretion in ordering Bell to pay $20 per week in restitution. The judge was obliged to ensure his restitution order was supported by record evidence that Bell could afford the payments he decreed. Yet he failed to do so. The restitution order cannot stand and must be vacated. According to the Court, that ends the matter. On this point, I respectfully dissent. In my view, we should remand to allow the trial court to enter a fully lawful sentence for Bell.

We do not know what sentence the trial court would have imposed had it concluded Bell could not afford restitution. Perhaps the result would have been the same—that the court still would have imposed the same probation, including the suspended sentence, no matter what. Or perhaps not. I would remand to allow the trial court to answer that question for us.

Posted by Marcia Oddi on Thursday, September 29, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Kentucky, Indiana home to top 'super-polluters'"

James Bruggers has a lengthy, informative report today in the Louisville Courier Journal on air pollution in Indiana and Kentucky, including "a documentary produced by The Weather Channel and The Center for Public Integrity about the concentration of toxic air releases at a small number of facilities in the United States".

Posted by Marcia Oddi on Thursday, September 29, 2016
Posted to Indiana Government

Ind. Decisions - "Judge sentences former Lake Station mayor to 4 years in prison: 'Shame on you'"

Updating numberous earlier ILB posts on Former Lake Station Mayor Keith Soderquist (including a few headed "Former Lake Station Mayor Keith Soderquist asking for a new trial; claims the federal judge fell asleep twice"), the Gary Post-Tribune reports today in a very long story by Becky Jacobs that begins:

Federal judges had strong words for a former Lake Station mayor and his wife Wednesday, particularly about the money they used from the Lake Station food pantry.

"What were you thinking? Are you goofy or what?" Judge James Moody asked in a raised voice to Keith Soderquist.

After a brief, silent pause, Moody asked Soderquist to answer him, and Soderquist replied, "no."

"You took full advantage of (the poor)," Moody said. "Shame on you."

In a full day of parties shuffling between courtrooms, medical documents and court transcripts, Keith and Deborah Soderquist were sentenced Wednesday in U.S. District Court in Hammond.

Keith Soderquist was ordered to spend four years in prison — 42 months for his crimes with his wife followed by 6 months for aiding his stepdaughter — while Deborah Soderquist was sentenced to two years in prison. The couple must also pay more than $26,000 in restitution to the city of Lake Station and to the IRS.

Last September, a jury found the couple guilty of using money from his campaign fund and the food pantry on dozens of gambling trips to Michigan.

Earlier this year, Keith Soderquist also pleaded guilty to helping his stepdaughter, Miranda Brakely — who was sentenced to six months of home detention — hide thousands of dollars she stole from the city when she worked there as a court clerk.

And this summer Soderquist admitted in court documents to recording and listening to thousands of phone calls city hall employees made since 2011, including a call made from a phone in the private chambers of a Lake Station City Court judge. Though he wasn't charged for the wiretapping, it factored into the sentencing, documents state.

Posted by Marcia Oddi on Thursday, September 29, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (1):

In Jakob Robinson v. State of Indiana , a 7-page opinion, Judge Najam writes:

While a teacher and coach at McCutcheon High School in Tippecanoe County, Jakob Robinson engaged a student is numerous acts of sexual intercourse and deviant sexual conduct. After the student reported Robinson’s behavior to local authorities, the State ch arged Robinson with five counts of child seduction, each as a Level 5 felony. Robinson pleaded guilty to each of those counts and the trial court sentenced him to an aggregate term of eight years, with five years executed in the Department of Correction a nd three years suspended to probation. [2] On appeal, Robinson asserts that his sentence is inappropriate in light of the nature of his offenses and his character. We conclude that his sentence is not inappropriate. * * *

Robinson’ s reliance on his guilty plea, lack of criminal history, and, to a lesser degree, his community support better explain why he received the sentence he did instead of receiving a higher term. 1 Further , it was within the trial court’s discretion to consider the degree of harm endured by K.F. as well as Robinson’s inability to follow simple court instructions to stay away from his wife. Regardless, however , Robinson’s manipulation of K.F. and his abuse of his position of trust over her plainly reflect his poor character. The sentence the trial court imposed after taking all of those facts into account is not inappropriate. Thus, we affirm.

NFP civil decisions today (5):

Northwest Oral Surgeons, P.C. v. Joseph Lovasko, D.D.S. (mem. dec.) - "The trial court did not err in its construction of the look-back provision in the Severance Agreement. The trial court did not err when it reached a severance benef it amount other than that proffered by Northwest."

D.G. v. R.G. (mem. dec.)

Sandra Winslow v. Fred Winslow (mem. dec.)

In the Matter of L.S. (Minor Child), a Child in Need of Services, D.S. v. Ind. Dept. of Child Services (mem. dec.)

In re the Termination of the Parent-Child Relationship of H.H.:, A.S. (Mother) and J.H. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (4):

Ethan Gee v. State of Indiana (mem. dec.)

Scott L. Wilkins v. State of Indiana (mem. dec.)

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

Ian Defenderfer v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, September 29, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Dark Boxes are Comparable Properties in Indiana "

Howard County Assessor v. Kohl's Indiana LP (ILB summary here), the first of the big box/dark box appeals to be decided by the Indiana Tax Court, is the subject of an article from Bingham Greenebaum Doll LLP. Some quotes:

The primary issue on appeal was whether the use of “dark boxes” as comparable properties was appropriate when appraising the market value-in-use of the property. Dark boxes are big box retail stores (exceeding 50,000 square feet) that are vacant at the time of sale. Kohl’s argued these were appropriate comparable properties because their sales prices reflected the value of the real property absent the value of the business or other fixtures, each of the properties was sold for continued retail use, and properties similar to these dark boxes were regularly sold in the market. The assessor argued that dark boxes were not comparable properties because “dark boxes do not have any utility to either the original owner or another owner/user in the same retail tier,” and that the store was a special purpose property based on the modifications made by Kohl’s. The assessor’s argument hinged on the idea that a “second-generation user” would have a significant expense in transforming the dark box into a usable space.

The Tax Court rejected the Assessor’s argument and plea to overturn past cases finding that sales of properties to second generation retailers are comparable under the market value-in-use standard. [citations omitted] The Tax Court upheld that use of dark boxes are permissible as comparable properties for the Indiana market value-in-use valuation process.

Posted by Marcia Oddi on Thursday, September 29, 2016
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - "Change to Indiana voting law worries major parties"

Maureen Hayden of CNHI reports today in the Terre Haute Trib-Star:

light changes in election rules are causing consternation among party leaders who fear loyal voters will be confused when casting ballots this fall.

A new law says straight-party ballots – cast by 1.5 million Hoosiers in the last two elections – will no longer count in partisan races in which more than one candidate can be chosen. That affects at-large races common at the local level.

Though seemingly minor, the change is a huge deal for local party leaders, who say it will confound voters.

They also fear the erosion of a practice, dating to the 19th century, of voting for a slate of one party’s candidates with a single punch.

Indiana is one of only eight states that still offer the option of straight-party voting. Alabama, Iowa, Kentucky, Oklahoma, Pennsylvania, South Carolina and Texas are the others.

Some lawmakers want to jettison the choice altogether.

In practical terms, party loyalists this fall can still punch once to vote for president, governor, U.S. Senate and some other state races. But they’ll have to manually select candidates running at-large for county council seats.

In the next election, it will affect at-large city council races, as well. * * *

But Rush County GOP chairman Michael Dora is among those who fear confusion -- despite election officials’ best efforts to educate voters.

“We’re going to have a lot of voters, especially older ones, who just won’t know,” he said.

In Dora’s county, for example, three Republican candidates are running for those at-large seats this year and no Democrats. But there is also a well-known candidate, Don Jarman, running as an independent.

Jarman said he likes the fact that traditionally partisan voters will now have to look at his name on the ballot as they are forced to pick among the at-large candidates.

“The first time you vote for an independent, it’s hard,” he said. “But it gets easier the next time, and I think that’s what some party leaders are worried about.”

The law changing the straight-party choice was authored by Republican Sens. Greg Walker and Randy Head, who said it would help improve murky election protocols.

ILB: Screenshots of sample ballots might help explain this ...

Posted by Marcia Oddi on Thursday, September 29, 2016
Posted to Indiana Government

Ind. Courts - "Attorney asks judge to order BMV to pay up to $144 million" to Hoosiers

Updating yesterday's post, Madeline Buckley reports today in the Indianapolis Star on yesterday's trial. Some quotes [ILB emphasis added]:

$32 million or $144 million?

The Indiana Bureau of Motor Vehicles and attorneys launching a class-action lawsuit against the agency are more than $100 million apart on what they say the BMV owes its customers for years of inflated fees.

With millions of dollars at stake, attorneys on Wednesday presented Marion Superior Court Judge John Hanley with two opposing views of how much the agency must pay back after it overcharged residents in fees for titles and registrations.

After the one-day bench trial, Hanley asked for an extension to decide whether the BMV owes state residents more than the $32 million it is in the process of refunding. This is the second class-action suit regarding overcharging. In 2013, the BMV settled a lawsuit for $30 million that focused on fees for driver's licenses.

Attorney Irwin B. Levin argued that the BMV should refund overcharges going back 10 years and pay interest. In total, he calculated, the BMV should refund its customers $144 million. However, he presented an array of scenarios in which the judge could take into account undercharges and pre-existing refunds, with options to issue a ruling that dips as low as $76 million.

But from the BMV's point of view, such a ruling benefits only the attorneys. Carl Hayes, attorney for the BMV, argued that the lawsuit harms taxpayers and lines the pockets of the attorneys representing the plaintiffs.

Hayes said the BMV has calculated only $32 million in overcharges. He asked the judge to dismiss the lawsuit, arguing that the BMV is already in the process of making the refund. Otherwise, he said, the lawyers take home millions in attorney fees while each customer is refunded a small amount of money.

"This kind of lawsuit is bad for Hoosiers, bad for taxpayers," Hayes said, also arguing that the statute of limitations does not allow plaintiffs to seek refunds going back 10 years.

Levin, though, countered that without a looming lawsuit, the BMV would not have begun issuing refunds. He argued that the agency started paying the money back in an attempt to reduce the impact of the suit.

Posted by Marcia Oddi on Thursday, September 29, 2016
Posted to Indiana Courts | Indiana Government

Ind. Law - "New tool for Indiana State Police to scan drugs for chemical makeup at rapid speed"

A brief story this morning on WAVE3, by Jess Raatz, caught the ILB's eye. Some quotes:

A new device is in the hands of Indiana State Police as the war on drugs rages on.

That laser device can tell troopers within seconds what drugs they are dealing with on traffic stops and drugs busts.

"Welcome to the future of drug recognition, this is a big deal," explains Sgt. Phillip Hensley.

Hensley says the device is called Tru Narc, a $21,000 device which uses a laser to detect different drugs.

"Right now, it recognizes 370 different types of drugs. This will analyze and recognize chemicals in a few minutes."

Indiana State Police purchased five of the laser devices for Indiana with federal grant money, with the idea to get more by the end of the year.

"Now if we pull over a car and find a white powder in a plastic baggie, I don't have to send it to a lab and wait several weeks to get the results. We can hold it up to the laser, we never have to touch it. Within a minute, we will have done what would have taken a lab seven weeks to do."

Posted by Marcia Oddi on Thursday, September 29, 2016
Posted to Indiana Law

Wednesday, September 28, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 11 NFP memorandum decision(s))

For publication opinions today (3):

In Larry Myers and Loa Myers v. Bremen Casting, Inc., and Mastic Home Exteriors, Inc., a 21-page opinion, Judge Robb writes:

Larry Myers spent the majority of his career working as an electrician in primarily industrial and commercial spaces, and during this time, Larry was exposed to asbestos. In February 2014, doctors diagnosed Larry with mesothelioma. Thereafter, Larry and his wife, Loa, filed a complaint alleging negligence against numerous product manufacturers and premises owners, including Bremen Casting, Inc. (“Bremen”) and Mastic Home Exteriors, Inc. (“Mastic”) (collectively, the “Defendants”). Specifically, the Myerses allege the Defendants are (1) vicariously liable for the acts of the employees of their independent contractors under the non-delegable duty doctrine, (2) vicariously liable for the acts of their own employees under the doctrine of respondeat superior, and (3) liable as premises owners. The Defendants each moved for summary judgment, and the trial court partially granted each motion. On the motion of all parties, the trial court’s orders were certified for interlocutory appeal and this court accepted jurisdiction and consolidated the appeals under a single cause number, designating the Myerses as Appellants/Cross-Appellees and the Defendants as Appellees/Cross-Appellants.

On appeal, the Myerses argue the trial court erred in granting summary judgment in favor of the Defendants on the Myerses’ vicarious liability claim under the non-delegable duty doctrine and premises liability claim; on crossappeal, the Defendants argue the trial court erred in denying their motions for summary judgment on the Myerses’ respondeat superior claim. Therefore, we consolidate and restate the issues before us as whether the trial court erred in granting in part and denying in part the Defendants’ motions for summary judgment. We conclude: (1) the trial court erred in granting the Defendants summary judgment on the Myerses’ vicarious liability claim pertaining to the negligence of independent contractors, (2) the trial court did not err in denying the Defendants summary judgment on the Myerses’ respondeat superior claim, and (3) the trial court erred in granting the Defendants summary judgment on the Myerses’ premises liability claim. We therefore affirm in part, reverse in part and remand for further proceedings on the Myerses’ claims. * * *

Indiana’s summary judgment standard carries with it a heightened burden for the moving party, and in negligence cases, summary judgment is rarely appropriate. As the moving party, the Defendants were required to designate evidence sufficient to negate the Myerses’ claims. The Defendants did not meet this burden. We conclude there is a genuine issue of material fact as to whether the Defendants can be held liable for the negligent acts of their independent contractors under one of the exceptions to the non-delegable duty doctrine, and the trial court erred in granting summary judgment to Defendants on this vicarious liability claim. In addition, the Defendants can be held liable for the negligent acts of their own employees, and the trial court did not err in denying the Defendants summary judgment on the Myerses’ respondeat superior claim. As to the premises liability claim, there is a genuine issue of material fact as to whether the Defendants can be liable for failure to maintain their premises in a reasonably safe condition, and the trial court erred in granting the Defendants summary judgment on that claim. In sum, Defendants are not entitled to summary judgment on any of the Myerses’ claims, and we accordingly affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

In John W. Thomas v. State of Indiana , a 15-page opinion, Judge Kirsch writes:
Following a jury trial, John W. Thomas (“Thomas”) was convicted of attempted murder, a Level 1 felony, attempted aggravated battery as a Level 3 felony, attempted battery with a deadly weapon as a Level 5 felony, and criminal recklessness as a Level 6 felony. He appeals his conviction for attempted murder and raises the following restated issue: whether the trial court committed fundamental error when it instructed the jury that voluntary intoxication is not a defense to attempted murder. * * *

Thomas argues on appeal that, although a defendant’s voluntary act of becoming intoxicated satisfies the general intent to commit an offense, Indiana law treats attempted murder differently than other intent crimes, as it requires proof of specific intent to kill. Thomas relies on this “special treatment” given to attempted murder, arguing that “this uniqueness affects the constitutionality of Indiana Code section 35-41-2-5, the voluntary intoxication statute, as applied to attempted murder.” Appellant’s Br. at 8. His position is that “[w]hile our Legislature has defined voluntary intoxication as one means of establishing the general intent element of a criminal offense, it has not defined voluntary intoxication as a means of establishing specific intent for crimes such as attempted murder.” Id. at 18 (emphasis added). He contends, then, that the trial court’s Final Instruction No. 28, which prohibited the jury from considering evidence of intoxication when determining whether Thomas possessed an intent to kill Vinson, deprived him of a fair trial and constituted fundamental error such that his conviction for attempted murder should be reversed. * * *

Given that the Indiana legislature has not expressly identified attempted murder as an exception to the law negating voluntary intoxication as a defense, and our Supreme Court has not expressed an indication that any such exception exists, we decline Thomas’s invitation to create one. Final Instruction No. 28 was a correct statement of the law, and Thomas has not established that the trial court committed fundamental error when it instructed the jury. Affirmed.

In Susan E. Sturdivant v. State of Indiana , a 15-page opinion, Chief Judge Vaidik writes:
Charged with possession of methamphetamine and other offenses, Susan Sturdivant told the trial court—at multiple pretrial hearings over the course of fourteen months—that she wanted to waive her right to counsel and represent herself. The court allowed her to do so, and a jury convicted her on all charges. Now represented by an attorney, Sturdivant claims that she is mentally ill and that the trial court should have denied her request for self-representation under Indiana v. Edwards, 554 U.S. 164 (2008), which recognized the authority of trial courts to insist upon representation by counsel for those defendants who “suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” Because the trial court was in the best position to judge Sturdivant’s competency and there is no evidence that Sturdivant was suffering from “severe mental illness,” we affirm the trial court’s decision to allow her to conduct her own defense. * * *

Here, the trial court had numerous opportunities to converse with and observe Sturdivant during more than a year of pretrial hearings. Sturdivant does not direct us to any facts that the trial court knew or could have discovered that would have supported a finding of severe mental illness. Therefore, we cannot say that the trial court’s decision to allow Sturdivant to represent herself was clearly erroneous.

NFP civil decisions today (1):

In re Paternity of Jerry Thomas Leber, Jerry Dillon v. State of Indiana and Laurie Leber (mem. dec.)

NFP criminal decisions today (10):

Leon C. Sieg v. State of Indiana (mem. dec.)

Albert Boyd v. State of Indiana (mem. dec.)

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

Kevin Lee Troxtle v. State of Indiana (mem. dec.)

Anthony E. Jeffares v. State of Indiana (mem. dec.)

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

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

Taiwan Lundy v. State of Indiana (mem. dec.)

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

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

Posted by Marcia Oddi on Wednesday, September 28, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Trial today will untangle whether BMV owes more money"

Madeline Buckley of the Indianapolis Star reports this morning in a story that begins:

Almost three years after the Bureau of Motor Vehicles settled a class-action lawsuit for $30 million, the agency could be on the hook for more money as it goes to trial in a second lawsuit regarding inflated driving fees for Indiana residents.

The class-action lawsuit alleges that the BMV overcharged Hoosiers in its fees for a slew of licenses and titles offered by the agency, such as motor vehicle registrations, semitrailer registrations and personalized license plates. The previous class-action lawsuit solely dealt with fees associated with driver's licenses.

Marion Superior Court Judge John Hanley will hear the case Wednesday in what is expected to be a one-day bench trial.

The biggest contention of the lawsuit is how much money the BMV owes to Indiana drivers. Attorneys for the plaintiffs are arguing that the BMV overcharged residents by tens of millions of dollars.

The BMV, though, has countered that the amount is not that high, and that the agency actually undercharged customers in some cases.

The trial marks another step in the yearslong saga of problems for the BMV regarding overcharging drivers.

The most recent ILB post on this lawsuit was September 15th.

Posted by Marcia Oddi on Wednesday, September 28, 2016
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - More on: Legislative committee to look at administrative adjudiciation

Updating this ILB post from Sept. 20, the Interim Study Committee on Corrections and Criminal Code will hold its second meeting of this interim today at 1:30 PM in Rm. 431 of the Statehouse.

The agenda indicates that the meeting will have further discussion of administrative law courts. First on the agenda, however, is use of global positioning devices in notification in domestic violence cases.

You may watch the meeting live here, at 1:30.

You may watch the archived video of last week's meeting here.

Posted by Marcia Oddi on Wednesday, September 28, 2016
Posted to Indiana Government

Ind. Courts - SCOTUS Justice Sherman Minton featured in Indiana Bicentennial story

Andrea Neal, who is authoring a 100 installment bicentennial series, here in the Crawfordsville Journal Review, writes today on Justice Sherman Minton, who provided one of the four votes needed for the SCOTUS to grant cert in the case of Brown v. Board of Education; the case was later decided unanimously. From today's story:

According to Linda C. Gugin, co-author of “Sherman Minton: New Deal Senator, Cold War Justice,” Minton’s position in Brown “was very consistent with his progressive views on civil rights.”

Minton expressed discomfort with racial discrimination in his highly regarded 1953 opinion in Barrows v. Jackson. The case involved a covenant in a deed, which barred the sale of a residence to a non-white. As stated by Minton: “The question we now have is: can such a restrictive covenant be enforced at law by a suit for damages against a co-covenanter who allegedly broke the covenant?” Minton’s answer was a resounding “no.”

In the Brown case a year later, Minton played a key role in encouraging a unanimous court. He later called it “the most important decision of the century because of its impact on our whole way of life.”

Born in Georgetown in 1890, Minton attended New Albany High School and earned a law degree from Indiana University in 1915. He was elected as a Democrat to the U.S. Senate, serving from 1934 to 1941, and was a strong supporter of President Roosevelt, including Roosevelt’s plan to pack the Supreme Court by adding justices who would support New Deal legislation. Minton lost his bid for re-election.

His friend and former Senate colleague Harry Truman appointed him to the Supreme Court in 1949, where he served until 1956 when he retired due to steadily worsening anemia. He returned to New Albany, served occasionally as a judge on lower federal courts and gave speeches and college lectures. Minton died in 1965. He was the last member of Congress to be appointed to the Supreme Court.

The article also notes:
Minton is often referred to as Indiana’s only Supreme Court Justice, but that is not the case. Willis Van Devanter, who served on the court from 1911 until 1937, was born and raised in Marion.

Posted by Marcia Oddi on Wednesday, September 28, 2016
Posted to Indiana Courts

Courts - "Pro bono bill veto was a shock" - California governor vetos new requirement imposed on law students

Some quotes from a lengthy commentary that Cindy Thomas Archer, associate dean for Clinical Programs and Experiential Learning at Loyola Law School, Los Angeles, wrote September 16th in the Daily Journal [ILB emphasis]:

On Aug. 29, Gov. Jerry Brown vetoed Senate Bill 1257, which would have required those seeking admission to the California State Bar to complete 50 hours of free legal services for those who could not otherwise afford to pay a lawyer for her services.

I was shocked, as were most of the lawyers I knew, by Brown's veto because for years there have been signs that such a requirement seemed inevitable.

Let's go back a few years. In 2012, the State Bar Board of Trustees approved the appointment of the Task Force on Admissions Regulation Reform. For almost four years, TFARR studied proposed competency training requirements for admittees to the California Bar. The seemingly least controversial of its proposals was the requirement that those seeking admission complete 50 pro bono service hours. I spoke with law school public interest and pro bono project directors across the state and, while other aspects of the TFARR recommendations were hotly contested and debated, everyone thought this requirement would easily be instituted. * * *

Then State Sen. Marty Block entered the conversation with SB 1257, an answer to the access to justice gap for the masses who cannot afford a lawyer. A no-brainer, right?

Despite an undisputed gap in access to justice, despite the fact that increasingly attorneys are graduating from schools that instilled the importance of public service, and despite the fact legislators and a State Bar Task Force support a pro bono requirement, Brown vetoed the legislation. Why? Brown has a reputation for compassion for the downtrodden, and he has himself acknowledged the significant access gap in the legal system. But Brown vetoed the bill reasoning that recent law graduates should not be burdened with providing free services when they are struggling with high debt and low employment.

He challenged the state to be more thoughtful about how to balance the need to provide access to legal services with the burden newly minted young lawyers carry. * * *

The governor's veto at least temporarily, ensures providing a prescribed number of service hours does not become another box to check for admission to the bar. It also does not, however, provide any answers to the widening access-to-justice gap. It will require the conversation to continue in even more creative and thoughtful ways. A legal education can be expensive. It is true there is an ever-widening gap for access to justice for some. Also, law is a business as well as a profession. What are the answers? Strict admissions regulations alone, probably not. Maybe technology. Maybe certified, non-lawyers practicing in limited areas. Maybe education reforms. Probably a combination of all of them grounded in the fact that the law is a profession pro bono publico.

Posted by Marcia Oddi on Wednesday, September 28, 2016
Posted to Courts in general

Law - Example of a major universtiy president's contract

On August 27, the $$ Bloomington Herald-Times reporter Michael Reschke had a story about Indiana University President Michael McRobbie’s contract; the Herald-Times obtained a copy of the contract through a public record request. A few quotes from the long $$ story:

As public university president contracts go, Indiana University President Michael McRobbie’s is one of the most sophisticated.

“It would be at the very top of our rating system,” said James Finkelstein, professor emeritus of public policy at George Mason University. “It’s also among the most valuable in terms of total compensation.”

Here is a copy of the 11-page employment agreement that was obtained by the H-T.

Posted by Marcia Oddi on Wednesday, September 28, 2016
Posted to General Law Related

Tuesday, September 27, 2016

Ind. Courts - Commercial courts and e-filing focus of Supreme Court symposium this afternoon

Updating this ILB post from Sept. 19th, the symposium on the 3-year commercial courts pilot project took place this afternoon and was well attended by corporate counsel and others.

The ILB has notes, which will appear later. For now, some highlights:

There are six pilot commercial courts, located around the state. The ILB has a long list of earlier posts on these courts.

Here is an ILB chart
of the 6 courts and the participating judges. The commercial court dockets are in addition to the participating judges' normal dockets.

On June 20th the ILB
posted that there appeared to be no way "to find, or follow, the commercial courts' dockets (or the list of cases docketed in any court) via mycase.IN.gov, or any other resource."

That is no longer the case. MyCase.in.gov now has a separate option for "commercial courts." A search run this afternoon by the ILB disclosed that currently 34 cases have filed in the commercial courts around the state.

A review shows, however, that of the 34 cases, 27 have been filed in Marion Superior Court, Civil Division 1. Of the remaining 7, 5 have been filed in Fort Wayne and 2 in Elkhart County.

Chief Justice Rush pointed out today: "Indiana has statewide venue, you may file your case, any sort of civil case, and any county that you wish, as long as the other side does not file a motion for preferred venue, then the case can remain where it was filed. So, any case that you have can be filed before any of the six."

Posted by Marcia Oddi on Tuesday, September 27, 2016
Posted to Ind. Commercial Courts

Ind. Gov't. - "Indiana attorney general candidates give views on sentences, immigration, more"

Maureen Hayden, CNHI News Service, reports today in the Goshen News, reports on Indiana's attorney general race, in a question and answer format. Here is a sample:

Question: Does the state have a role in enforcing federal immigration laws?

Arredondo: There may be times when the attorney general must use his or her discretion whether or not to act. The state has limited resources to deal with immigration issues and those resources would dictate what role, if any the attorney general would perform.

Hill: I view my role as attorney general to defend freedom, protect families and to inspire solutions. The state absolutely has a role in making certain that its citizens are protected. It’s clear the federal government has dropped the ball on immigration and immigration enforcement. The question becomes, at the point where Indiana citizens are at risk, should the state step in? Indiana’s job is to keep its citizens safe, so there could come a time when the governor, legislators, the attorney general and other leaders in state would need to look at what would need to be done, legally and appropriately, to address those issues.

Posted by Marcia Oddi on Tuesday, September 27, 2016
Posted to Indiana Government

Ind. Gov't. - "Work ethic: Lawmakers do too little to fix tarnished image"

Niki Kelly reported in the Sunday Fort Wayne Journal Gazette:

INDIANAPOLIS – Tucked in a 2015 legislative ethics reform bill was a provision creating the Office of Legislative Ethics.

John Robert “Bob” Rudolph was tapped to serve as the chief counsel, but after one full year, it is unclear what exactly he or the office does.

There are no public statistics kept on issues that are researched. No formal or informal opinions are issued or maintained, though verbal opinions appear to be released often. There is no transparency in terms of records, meetings or minutes.

“The relationship is one of being a counselor, so there is attorney-client privilege attached,” said George Angelone, head of the Legislative Services Agency.

Rudolph makes $119,000 but also has other duties, such as bill drafting. The ethics responsibilities were simply absorbed into the office.

One of Rudolph’s main ethics-related jobs is to put on an annual ethics seminar that legislators are required to attend. He also responds to questions from legislators about whether they have a conflict on a particular bill or issue. And he can answer questions on how to appropriately fill out the statement of economic interest.

“He has the role of a counselor – not an enforcer,” Angelone said.

“We are carrying out the legislative directive, and we do our best to provide the services the legislature needs,” he said.

Rudolph did not speak to the Journal Gazette.

Creation of the office was just one facet of a larger bill pushed by House Speaker Brian Bosma after an ethics scandal involving former member Eric Turner. He privately lobbied against a nursing home bill that would have financially hurt a business run by him and his family.

The measure required lawmakers to disclose more information about their personal financial interests and the lobbying activities of their family members. And it closed several loopholes that allowed state employees to take lucrative jobs with businesses they regulate or to whom they award contracts.

It became clear then that both the House and Senate had their own ethics rules – some of which were more stringent than others.

The story continues with details of the operations of the Senate ethics committee.

Also on Sunday, the Journal Gazette published a strong editorial headed "Work ethic: Lawmakers do too little to fix tarnished image." Some quotes:

For putting a positive spin on an embarrassing ethical mess, it’s tough to top the Indiana General Assembly. The House GOP caucus closed the 2015 session hailing a “historic step for Indiana ethics reform.”

But the ethics bill lawmakers approved looks to be little more than an effort to cover over and move on after a member’s brazen abuse of power.

As The Journal Gazette’s Niki Kelly reported Sunday, the newly established Office of Legislative Ethics is as opaque as the troublesome caucus proceedings that precipitated it: No formal or informal opinions issued or maintained. No public records, meetings or minutes.

What House Speaker Brian Bosma promised was much more. In announcing that Robert “Bob” Rudolph would serve as chief counsel for the office, Bosma said he knew that Rudolph’s work “will help bring more transparency and bolster the public’s trust in the legislative process.”

But a government office without clear purpose or well-defined operations does little to bolster public trust. With no real evidence of the office’s work, it’s tough to believe the ethical comportment of the General Assembly has changed since former Speaker Pro Tem P. Eric Turner privately lobbied lawmakers to kill a proposed ban on nursing home construction that would have hurt Mainstreet Property Group, his family’s business. * * *

Just this month a lawmaker unabashedly admitted he had “let it be known to any and every person that I worked with, whether that be lobbyists in the hallways, people in Legislative Services Agency, (or) people in the business community” that he was looking for a job. That’s precisely the self-interest and abuse of power that leads to troubling conflicts and bad legislation.

The vast majority of lawmakers remember their role as a public servant, but a sense of entitlement by only one member can harm the entire institution.

If legislative leaders truly want to raise the General Assembly in the public’s esteem, they’ll put more substance behind the Office of Legislative Ethics. Kentucky, which endured its own legislative scandal, has a good model to follow, continually reminding lawmakers what constitutes a conflict of interest and pointing out examples where they occur.

Posted by Marcia Oddi on Tuesday, September 27, 2016
Posted to Indiana Government

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

For publication opinions today (1):

In Dale Sedam, Kim Sedam, and Bryan Norris, as co-personal representatives of the Estate of David C. Hamblin, deceased v. 2JR Pizza Enterprises, LLC doing business as Pizza Hut #013413, et al., a 13-page opinion, Judge Mathias writes:

David C. Hamblin (“Hamblin”) was killed in a car accident involving Ralph Bliton (“Bliton”) and Amanda Parker (“Parker”), who was employed as a Pizza Hut delivery driver. Dale Sedam, Kim Sedam, and Bryan Norris, the copersonal representatives of Hamblin’s Estate (collectively “the Estate”), filed a complaint against Parker and her employer, Pizza Hut, alleging that Parker, acting in the course and scope of her employment with Pizza Hut, negligently operated her vehicle and caused the accident that resulted in Hamblin’s death.

The Estate also alleged Pizza Hut negligently hired, trained, supervised, and retained Parker. Pizza Hut filed a motion for summary judgment on that claim, and the Jefferson Circuit Court granted partial summary judgment in Pizza Hut’s favor. The Estate appeals and argues that the trial court erred when it concluded that the Estate could only proceed with its negligence claim against Pizza Hut under a theory of respondeat superior in light of Pizza Hut’s admission that Parker was acting with the scope of her employment.

Concluding that an employer’s admission that its employee committed the alleged negligent act within the course and scope of her employment does not preclude an action for negligent hiring, training, supervision, and retention, we reverse and remand for proceedings consistent with this opinion. * * *

The issue at the heart of this appeal is whether a plaintiff may establish an employer’s liability proceeding on both the theory of negligent hiring and the theory of respondeat superior where the employer has admitted that the employee was acting within the course and scope of his or her employment. To support their respective arguments, the Estate cites to our supreme court’s opinion in Broadstreet v. Hall, 168 Ind. 192, 80 N.E. 145 (1907), and Pizza Hut directs our attention to this court’s opinion in Tindall v. Enderle, 162 Ind. App. 524, 320 N.E.2d 764 (1974). * * *

As we noted above, over a century ago, the Broadstreet court held that allowing a plaintiff to pursue both theories of recovery was proper. Because negligent hiring, retention, or supervision are separate torts that are not derivative of the employee’s negligence, an employer’s admission that the employee was acting within the course and scope of his or her employment should not preclude a plaintiff from arguing both theories of recovery. * * *

Under the doctrine of stare decisis, we are bound by our supreme court’s Broadstreet decision. Moreover, allowing the fact-finder consider Pizza Hut’s and its employee’s fault, if any, in causing the accident that resulted in Hamblin’s death is consistent with our Comparative Fault Act. For all of these reasons, we conclude that the trial court erred when it granted summary judgment to Pizza Hut on the Estate’s negligent hiring and retention claim.

NFP civil decisions today (0):

NFP criminal decisions today (1):

Mark H. Greedy v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, September 27, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - ACLU of Indiana Sues City of Lawrenceburg for Discrimination against People with Disabilities

From the news release:

Indianapolis -- The American Civil Liberties Union of Indiana filed suit against the City of Lawrenceburg, Ind. today on behalf of an organization that assists people with disabilities, saying the city has engaged in "intentional discrimination" by preventing the organization from building a supported living home for people with disabilities. The lawsuit claims that the city violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, in addition to Indiana law and several federal statutes that protect people with disabilities.

The case was filed on behalf of New Horizons Rehabilitation, Inc., which serves the needs of people with intellectual and developmental disabilities in the southeast Indiana counties of Dearborn, Decatur, Franklin, Ohio, Ripley and Switzerland. The organization provides a variety of services to its clients, including job training and community-based employment, day services and individualized home and respite care and supports in five homes it already operates. In 2013, New Horizons was donated property in Lawrenceburg with the understanding that a home for individuals with disabilities would be built on the site.

These supported living homes are recognized in Indiana Code § 12-28-4-8, which specifies that such homes be classified under the same zoning requirements as other residential structures. However, Lawrenceburg has instead classified the residence as a "boarding house or medical facility."
Here is a copy of the 8-page complaint.

Posted by Marcia Oddi on Tuesday, September 27, 2016
Posted to Indiana Courts | Indiana Government

Ind. Courts - Complaint filed against Johnson County prosecutor

Annie Goeller reports today in the Johnson County Daily Journal - some quotes:

The Johnson County prosecutor could face discipline by a state commission over comments he made after a judge found a man convicted of murder incompetent to be executed.

A complaint filed against Prosecutor Brad Cooper said he violated one of the state’s rules of professional conduct for attorneys and should be disciplined for professional misconduct, according to the filing with the Indiana Supreme Court Disciplinary Commission.

The state board is appointed by the Indiana Supreme Court and includes seven lawyers and two non-lawyers, and also has a staff to investigate and prosecute cases.

The complaint stems from comments Cooper made to the media in 2014 about an appeal filed by Michael Dean Overstreet, who was convicted of murdering Franklin College student Kelly Eckart in 1997. Overstreet’s attorneys argued he was not competent to be executed, and a South Bend judge agreed. * * *

After the judge ruled that Overstreet was not competent to be executed, Cooper told two media outlets that he disagreed with the judge’s decision, and called the judge distant and not accountable to local residents, according to the complaint. The appeal case had been moved to South Bend after Johnson County Superior Court 2 Judge Cynthia Emkes recused herself due to health issues.

According to the complaint, Cooper told one media outlet: “I was angry and suspicious when this case was sent to a distant judge who is not accountable to the Johnson County citizenry or a grieving mother who couldn’t even afford to drive up for the hearing. The idea that this convicted murdering monster is too sick to be executed is nothing short of outrageous and is an injustice to the victim, her mother, the jury and the hundreds of people who worked to convict this animal.” * * *

According to the complaint, those statements violated the rule for professional conduct for attorneys that says: “a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”

The judge in the case, St. Joseph County Judge Jane Woodward Miller, filed the complaint and said the statements Cooper made were untrue, Cooper said in an email. The complaint did not say who filed it.

Cooper disagrees, he said in the email.

Cooper said he made the comments on behalf of Eckart, who cannot speak for herself, and will continue to advocate for Eckart and her family. For example, he went to the county and got approval to spend $3,400 from a fund that collects money seized in drug investigations to pay for Eckart’s mother to travel and stay in South Bend and attend Overstreet’s hearings, Cooper said.

“I am proud of the work I did on the Overstreet trial and, while I was not involved in the Overstreet appeal, I will continue to advocate for Kelly and her family until justice is finally served,” Cooper said in an email.

Here is the docket in the attorney discipline case, In The Matter of Bradley David Cooper (41S00-1509-DI-00520). Final hearing is set for Oct. 5.

A search of the ILB has revealed three earlier posts on Prosecutor Cooper. The first, from Nov. 20, 2014, concerns the remarks which are the subject of the current disciplinary action, quoting Vic Ryckaert of the Indianapolis Star in a story on "the reaction of the prosecutor in the trial." The other two earlier posts:

Posted by Marcia Oddi on Tuesday, September 27, 2016
Posted to Indiana Courts

Ind. Courts - United States Magistrate Judge Tim A. Baker up for reappointment

A public notice from the USDC, SD Ind:

The current term of office of United States Magistrate Judge Tim A. Baker, at Indianapolis, Indiana, is due to expire on September 30, 2017. The United States District Court is required by law to establish a panel of citizens to consider the reappointment of the magistrate judge to a new eight-year term.

The duties of a magistrate judge position include the following: (1) conduct of most preliminary proceedings in criminal cases; (2) trial and disposition of misdemeanor cases; (3) conduct of various pretrial matters and evidentiary proceedings on delegation from the judges of the district court; and (4) trial and disposition of civil cases upon consent of the litigants.

Comments from members of the bar and the public are invited as to whether the incumbent magistrate judge should be recommended by the panel for reappointment by the court and should be directed to Laura A. Briggs, Clerk, Attn: Reappointment Panel, United States District Court, 46 East Ohio Street, Room 105, Indianapolis, Indiana 46204. Comments may also be submitted via email to: localrules@insd.uscourts.gov.

Comments must be received by Friday, October 21, 2016.

Posted by Marcia Oddi on Tuesday, September 27, 2016
Posted to Indiana Courts

Monday, September 26, 2016

Ind. Decisions - More on: Full 7th Circuit, 6-3, decides an Indiana case today, a prisoner appeal, reversing the district court, and the 7th Circuit panel

Updating this ILB post from Friday, Sept. 23, the AP is reporting:

Indianapolis — A northern Indiana prosecutor is weighing whether to retry a man after an appeals court threw out the man's triple-murder conviction.

Wayne Kubsch was convicted and sentenced to death in 2005 for the 1998 slayings of his wife, her ex-husband and her 10-year-old son. But the 7th Circuit Court of Appeals reversed those convictions Friday in a 6-3 decision.

The court found that a girl's statement that she saw one of the victims after the time prosecutors say Kubsch committed the killings was "critical evidence" jurors should have heard.

St. Joseph County Prosecutor Ken Cotter said Monday that he will consult with the victims' families and review case files before determining how to proceed.

From the South Bend Tribune:
A federal appeals court ushered in a chance for a third trial for Wayne Kubsch, a man sentenced to death twice after being found guilty in two former trials for the 1998 deaths of his wife, her ex-husband and 10-year-old son.

The 7th U.S. Circuit Court of Appeals ruled Friday that a videotaped testimony from then a 9-year-old girl from the 1998 investigation should have been allowed to be shown to a jury.

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

Ind. Decisions - Tax Court posts one today, decided Sept. 23

In Thor Industries, Inc. and Subsidiaries v. Indiana Department of Revenue, a 9-page opinion, Judge Wentworth writes:

Thor Industries, Inc. and Subsidiaries (collectively “Thor”) has moved to withdraw twenty-nine separately numbered requests for admissions that were conclusively admitted by operation of law when Thor failed to timely respond to the Indiana Department of State Revenue’s First Request for Admissions. The Court grants Thor’s motion. * * *

In instances like these, where a litigant’s use of Trial Rule 36(B) contravenes the Rule’s important purpose of more quickly and efficiently reaching a resolution based on the actual facts, the Court may withdraw the admissions when the presentation of the merits will be subserved and the party benefitting from them is not prejudiced. See, e.g., id. at 353-54. Indeed, Trial Rule 36(B) “‘is not intended to provide a windfall to litigants[,]’” nor is it to be used as a “‘gotcha’ device” or “‘as a trap to prevent the presentation of the truth in a full hearing[;]’” instead, it is to be used “‘as a tool for the fair disposition of litigation with a minimum of delay.’” See id. at 354 (citations omitted). Accordingly, and in keeping with this Court’s long-standing policy of deciding cases on their merits, the Court GRANTS Thor’s Motion. Consistent with the Court’s Order of August 26, 2016, the Department shall file a Notice regarding its intent to maintain or withdraw its Motion for Summary Judgment on or before September 30, 2016.

Posted by Marcia Oddi on Monday, September 26, 2016
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - Referendum questions now at the beginning of the ballot

A Bloomington Herald-Times tweet today includes a photo of the top of the November official ballot for Monroe County. The linked-to $$ story points out:

There's one thing supporters of the tax referendum for the Monroe County Community School Corp. don't have to worry about anymore: The question about whether to extend a property tax increase first adopted in 2010 won't be at the bottom of the general election ballot.

That came as something of a surprise last week, when copies of the final general election ballot were sent out from the Monroe County Clerk's Office. Referendum campaign volunteers had been telling supporters, "Don't stop at the top," thinking the question would be the last thing on the ballot, as it was in 2010.

But in 2011, Indiana law changed to require state constitutional amendments and "local public questions" to be placed at the top, right after instructions for voters and before any officeholders being selected by voters. That's where the MCCSC referendum question will be located when voters go to the polls in November. It will be labeled "School District Question," and it will appear immediately after a proposed state amendment that would make hunting and fishing a constitutional right, and just before straight-party voting options. [ILB emphasis]

Posted by Marcia Oddi on Monday, September 26, 2016
Posted to Indiana Government

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

For publication opinions today (2):

In Jon A. Arnold v. State of Indiana, a 21-page opinion, Judge Brown writes:

Jon A. Arnold
appeals the denial of his petition for post-conviction relief. He
raises several issues for our review, which we consolidate and restate as whether the post-conviction court erred in denying his petition for relief. We affirm.
In A.B. & T.B. v. The Indiana Department of Child Services, a 17-page opinion, Judge Altice writes:
This appeal involves the involuntary termination of parental rights with respect to two children, T.B. and R.K., who are half-siblings. Mother and Father are the parents of T.B., and R.K.’s father is deceased. Mother has been incarcerated throughout the underlying CHINS and termination proceedings. Father engaged in services for several months until his overwhelming distrust and dislike for the Indiana Department of Child Services (DCS) and service providers took over. From that point on, Father angrily rebuffed any attempts by providers to reengage him in services and ceased visiting with the children.

On appeal, Father presents a purely procedural issue. He contends that his parental rights with respect to T.B. were terminated without due process of law because the trial court terminated Father’s telephonic participation during the final hearing due to Father’s angry outbursts. Mother, on the other hand, challenges the trial court’s findings and conclusions supporting the termination. We affirm.

NFP civil decisions today (0):

NFP criminal decisions today (5):

Malena Shumaker v. State of Indiana (mem. dec.)

Steven A. Pearson v. State of Indiana (mem. dec.)

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

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

Jeffrey B. Buskirk v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, September 26, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending September 23, 2016

Here is the Clerk's transfer list for the week ending Friday, Sept. 23, 2016. It is two pages (and 22 cases) long.

NO transfers were granted last week.

There were two cases last week where transfer was denied by a 3-2 vote:

Posted by Marcia Oddi on Monday, September 26, 2016
Posted to Indiana Transfer Lists

Ind. Decisions - More on "Appeals court says video 'indisputably contradicts' South Bend police testimony"

Updating this ILB post from September 9th, quoting from a story that day by Christian Scheckler of the South Bend Tribune on the Sept. 8th COA opinion in Royce Love v. State of Indiana, reporter Sheckler had a new, very lengthy story Sunday in the SBT, headed "Does video of arrest contradict South Bend police?
Use of force, cops' honesty at center of legal fight."
Some quotes:

But the officers’ statements are in question after the Indiana Court of Appeals this month reversed two of Love’s convictions, finding that video footage of the arrest showed he complied with the police and lay on the ground before the officers deployed their Tasers and the dog.

The reversal of Love’s convictions comes as South Bend police face scrutiny over several cases of alleged excessive force and civil rights violations. * * *

Two of the officers in the Love case were involved in a separate case in 2010 that also raised questions about excessive force and ended with an appeals court reversing a man’s conviction.

Love, for his part, has filed a lawsuit against the officers and even called for prosecutors to charge the officers, arguing they lied under oath.

“I think the officers should be charged with battery and perjury. That would only be fair,” Love, 36, said in an interview with The Tribune. “I know there are some good officers out there, and I know there are some bad officers, and I just wish the good officers would stand up and hold the bad ones accountable.”

Yet whether the officers knowingly made false statements is still under debate, and it’s unclear whether the appellate court’s ruling, which seemingly refuted the officers’ sworn statements, could lead to discipline, criminal charges or any other consequences. * * *

Cotter, the county prosecutor, this week maintained that the video of Love’s arrest in the 2013 case did not show that the officers gave false statements. He had not viewed the video but said his staff briefed him on the footage. * * *

Cotter said he expects the Indiana attorney general’s office to ask the state Supreme Court to review the case, a request that should come by early- to mid-October.

Even if some of Love’s actions happened outside the view of the camera, however, a copy of the police video obtained by The Tribune seemed to contradict the officers’ version of how the events played out. * * *

Appellate decisions that refute police officers’ statements based on video evidence are rare but will become more common as footage from police body cameras and other types of video become more widely available, said Joel Schumm, an Indiana University law professor who specializes in appeals.

“The way appellate judges consider video evidence is a developing issue,” Schumm said. “As the Love opinion shows, not all judges agree with what approach to take.”

Court of Appeals Judge Rudolph R. Pyle III dissented with the majority in the Love case, arguing that the court went beyond its authority by re-weighing evidence that was already considered by a trial jury.

By rule, Indiana’s appellate courts are expected to consider only whether the evidence most favorable to the prosecution was enough for a reasonable jury to return a guilty verdict. But the Supreme Court also has held that if the review of facts shows a total lack of evidence strong enough to prove guilt beyond a reasonable doubt, the court has a duty to reverse a conviction.

Posted by Marcia Oddi on Monday, September 26, 2016
Posted to Ind. App.Ct. Decisions

Law - "Phone Makers Could Cut Off Drivers. So Why Don’t They?"

A few quotes from Matt Richtel's September 25th story on the front page of the Sunday NY Times Business section:

With driving fatalities rising at levels not seen in 50 years, the growing incidence of distracted driving is getting part of the blame. Now a lawsuit related to that 2013 Texas crash is raising a question: Does Apple — or any cellphone maker or wireless company — have a responsibility to prevent devices from being used by drivers in illegal and dangerous ways?

The product liability lawsuit, filed against Apple by families of the victims, contends that Apple knew its phones would be used for texting and did not prevent Ms. Kubiak from texting dangerously. The suit is unlikely to succeed, legal experts said, and a Texas magistrate in August preliminarily recommended the case’s dismissal on grounds that it was unlikely that lawyers could prove that the use of the iPhone caused the fatal accident.

Ms. Kubiak was convicted of negligent homicide and sentenced to five years on probation. Her lawyer, Jason Cassel, said she now keeps her phone in the back seat.

“The mere fact she’s putting her phone in her back seat in her purse shows she realizes how tempting it is to look down when we get a beep, chime, vibration,” Mr. Cassel said. “She never wants to be near the possibility” of being tempted to answer it.

The product liability case has brought to light a piece of evidence that legal and safety experts say puts Apple in a quandary — one it shares with other wireless companies. In Apple’s case, the evidence shows, the company has a patent for technology designed to prevent texting while driving, but it has not deployed it.

Posted by Marcia Oddi on Monday, September 26, 2016
Posted to General Law Related

Ind. Gov't. - "Conservatives pour money into races for state attorneys general"

That is the headline to a long Sept. 23rd story in the Washington Post, reported by Steven Mufson. Some quotes:

Conservative organizations are pouring money into the coffers of the Republican Attorneys General Association, which is far outpacing its Democratic rival in fundraising to elect candidates who will stand up to what they see as an activist Democratic agenda. * * *

Recently GOP attorneys general have cast themselves as the last bulwark against federal government encroachment and have thrown themselves against President Obama’s policies on immigration, health-care reform, climate change and Labor Department overtime rules.

RAGA has tapped into the fossil-fuel industry, health insurers and ideological donors from the right wing of the political spectrum for large infusions of cash.

The top contributions, as of early May, included $1,445,000 from the Judicial Crisis Network, devoted to blocking the appointment of liberal judges; $1,180,000 from the U.S. Chamber of Commerce’s Institute for Legal Reform; $500,000 from Republican casino billionaire Sheldon Adelson; and $451,100 from Blue Cross Blue Shield, a large health insurance company that has been struggling to provide plans under the Affordable Care Act.

Posted by Marcia Oddi on Monday, September 26, 2016
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 9/26/16):

Next week's oral arguments before the Supreme Court (week of 10/3/16):

Thursday, October 6

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/26/16):

Next week's oral arguments before the Court of Appeals (week of 10/3/16):

Monday, October 3

Wednesday, October 5

Thursday, October 6

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

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


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

Posted by Marcia Oddi on Monday, September 26, 2016
Posted to Upcoming Oral Arguments

Friday, September 23, 2016

Courts - "California repeals ban on use of assembly video for political purposes" What about Indiana?

That is the headline to an item Eugene Volokh is reporting in the Washington Post's Volokh Conspiracy blog. A quote:

California Penal Code § 9026.5, ... makes it a crime to rebroadcast televised California Assembly proceedings “for any political or commercial purpose, including … any campaign for elective public office or any campaign supporting or opposing a ballot proposition submitted to the electors.”

On June 9, U.S. District Court Judge Morrison England granted our request for a preliminary injunction ordering the state not to enforce the law and promised an opinion in due course. We were ready to keep on fighting to final judgment — the state had indeed been defending the law — but I’m delighted to report that yesterday Gov. Jerry Brown signed a bill repealing the prohibition.

ILB: What about Indiana?

Indiana's website includes this statement with every video:

No part of the audio or video coverage provided, including closed captioned text, may be used for commercial purposes intended to result in a profit or other tangible benefit to any person without the permission of the Legislative Council.

Except as provided in IC 2-5-1.1, audio or video coverage, including closed captioned text, does not constitute legislative history or an expression of the legislative intent, purpose, or meaning of an act enacted or a resolution adopted by the General Assembly.

The ILB thought there was an Indiana statutory prohibition against using videocasts for political purposes, but I'm not finding it. IC 2-5-1.1-13 covers "commercial purposes."

IC 2-5-1.1-14 provides that legislative audio or video coverage "is not part of the legislative history of an act enacted or resolution adopted by the general assembly" except where the general assembly expressly declares otherwise.

IC 25-1.1-15 provides that legislative audio or video coverage "does not constitute an expression of the legislative intent, purpose, or meaning of an act enacted or resolution adopted by the general assembly" except where the general assembly expressly declares otherwise.

In some states, the limitations set out in IC 2-5-1.1-14 & 5 might be considered to be in violation of the constitutional separation of powers.

Posted by Marcia Oddi on Friday, September 23, 2016
Posted to Courts in general

Ind. Decisions - Full 7th Circuit, 6-3, decides an Indiana case today, a prisoner appeal, reversing the district court, and the 7th Circuit panel

In Wayne D. Kubsch v. Ron Neal (ND Ind., Simon), a 68-page, en banc opinion, Chief Judge Wood writes:

On September 18, 1998, someone murdered three people in Mishawaka, Indiana: Beth Kubsch, Rick Milewski, and his son Aaron Milewski. Beth’s husband, Wayne Kubsch, was accused and convicted of the triple murders and sentenced to death. After direct appeals and postconviction proceedings in Indiana’s state courts, Kubsch turned to the federal court for habeas corpus relief under 28 U.S.C. § 2254. Although he raised a number of arguments in support of his petition, by now they have been distilled into one overarching question: did the state courts render a decision contrary to, or unreasonably applying, the U.S. Supreme Court’s decision in Chambers v. Mississippi, 410 U.S. 284 (1973)? The stakes could not be higher: because the state courts found Chambers inapplicable, the jury never heard evidence that, if believed, would have shown that Kubsch could not have committed the crimes. The district court and a panel of this court concluded that the state court decisions passed muster under the deferential standards imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Kubsch v. Neal (Kubsch IV), 800 F.3d 783 (7th Cir. 2015). That opinion was vacated when the full court decided to hear the case en banc. We now reverse and remand for issuance of the writ. * * *

[ILB: The en banc panel was composed of Before WOOD, Chief Judge, and POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON.

Circuit Judge HAMILTON, joined by EASTERBROOK and SYKES, dissent, beginning on p. 54.]

The Indiana courts excluded as evidence an unsworn, ex parte interview of a nine year-old witness who later disclaimed any memory of the interview. That decision did not violate petitioner Kubsch’s constitutional rights. The exclusion certainly was not an unreasonable application of “clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

To overturn Kubsch’s three murder convictions, the en banc majority has crafted a new rule so narrow and case-specific as to be good apparently only for this case: “Only if all of the factors the Court has specified, and we have described, come together must the evidence rule yield.” Ante at 34. That qualification is a red flag signaling a decision in conflict with § 2254(d)(1). True, the majority has built its argument from texts in the volumes of the United States Reports, working from Chambers v. Mississippi, 410 U.S. 284 (1973), and its progeny. But that line of cases requires careful balancing of many case specific factors, which the majority says must all point in the same direction for a rule of evidence to yield. I disagree with the majority’s new, case-specific rule, but the decisive point in this habeas case is that that new rule is not compelled by those precedents. Fair-minded judges can disagree with it. * * *

The rules of evidence, whether in codes or case law, inevitably pose a risk of excluding some reliable and probative evidence in some cases. Our criminal justice system is not infallible, but the rules of evidence have evolved to try to improve accuracy and fairness. The residual risk of error in capital cases is deeply sobering for all of us with roles in the criminal justice system. That risk offers a powerful policy argument against the death penalty. It does not provide a reason to disregard rules of evidence that apply to both sides and have been designed to ensure fair and reliable evaluation of evidence. The majority’s new, narrow, and case-specific exception is not compelled by Supreme Court precedent and does not support habeas relief here.

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

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (1):

In In Re: The Adoption of: J.S.S. and K.N.S., Rayburn and Beth Robinson v. M.R.S., a 10-page opinion, Judge Bailey writes:

B.R. and R.R. (“Foster Parents”) petitioned to adopt J.S.S. and K.N.S. (“Children”) without the consent of M.S. (“Father”). The trial court found Foster Parents had not established the clear and convincing evidence necessary to dispense with parental consent and Foster Parents filed a motion to correct error, which was substantively denied. Appealing a negative judgment, Foster Parents present a sole issue: whether the trial court’s decision is contrary to law. We affirm. * * *

Based upon their assumption that Father delayed for one and one-half years,2 Foster Parents argue that Father should be held accountable for a lack of diligence. However, our review is not one of whether a parent acted promptly or reasonably. Foster Parents were required to show, by clear and convincing evidence, Father failed to communicate “when able to do so.” I.C. § 31-19-9-8. Our review is limited to whether there was any evidence of record to support the trial court’s determination that Foster Parents failed to establish that Father had such ability. J.W., 697 N.E.2d at 481. CHINS orders and caseworker testimony support the trial court’s order.

The trial court did not clearly err in determining that Foster Parents failed to meet their burden of proof to obviate the necessity of Father’s consent to the proposed adoptions. Affirmed.

NFP civil decisions today (2):

Kimberly A. Anderson v. Marc A. Anderson (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of N.D. and A.J., Minor Children, L.J. Mother v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (7):

Andrew Stetler v. State of Indiana (mem. dec.)

Abdullah Alkhalidi v. State of Indiana (mem. dec.)

John E. Gray v. State of Indiana (mem. dec.)

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

Daniel N. Begly v. State of Indiana (mem. dec.)

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

Michael R. Clark v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, September 23, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Polluted Indy golf course could cost taxpayers $6M"

Some quotes from this long, front page story by Brian Eason in today's Indianapolis Star:

For decades, the concoction of trash, industrial chemicals and sewage sludge buried near the Whispering Hills Golf Course was out of sight, out of mind — and, as far as Indiana environmental regulators were concerned, contained.

That is, until recently. In April 2014, an Indiana Department of Environmental Management site inspection discovered the landfill cap had eroded due to natural wear and tear, compromising a critical barrier designed to prevent the toxins from escaping.

Now, Indy Parks may have to pony up as much as $6 million to install new protections for the contamination at the old Julietta Landfill, a longtime industrial dumpsite on the southeast side that the city converted into the public golf course in the early 1990s. * * *

A former pig farm, the property was leased in the 1950s to a sand and gravel company. The mining operation left huge pits in the ground when it abandoned the site in the early 1960s, and residents began dumping their household waste there illegally, according to IDEM records.

Later that decade, it was leased to a private landfill operator, and served as a dump for commercial and industrial waste until 1976, when the Indiana State Board of Health determined the site’s geology was unsuitable for use as a landfill, and the private operator voluntarily closed it. By that time it had accumulated 2.6 million cubic yards of waste, including industrial chemicals, such as glue and oil.

Later, from 1982 to 1985, the city used it to store more than 16,000 tons of sludge from a municipal wastewater treatment plant — the solid, fertilizer-like substance left over from the sewage treatment process.

And as early as 1988, the city began trying to repurpose it as a golf course.

It's not clear now, from a review of IDEM documents, why the plans went forward. But IDEM regulators warned a city consultant in 1988 that the pollution at the site was so extensive that it was under consideration to be added to the National Priorities List, an Environmental Protection Agency designation that makes it eligible for federal Superfund cleanup dollars.

In 1995 — with a landfill cap and various monitoring protocols in place — Whispering Hills Golf Course opened to the public. But under state law, the parks department, as the landowner, also took on the long-term responsibility to keep what was buried there from getting out.

Posted by Marcia Oddi on Friday, September 23, 2016
Posted to Environment | Indiana Government

Ind. Gov't. - "Knightstown, New Castle agree not to oppose Henry County wind farm development"

The ILB has a long list of entries on local regulation of wind turbines. Here is a new story from the New Castle Courier-Times, reported by Kevin L. Green, as reprinted in The Indiana Economic Digest. The story begins:

At the Knightstown Town Council’s Aug. 25 meeting, Susan Huhn, an independent candidate seeking the Henry County Commissioner southern district seat, made a presentation in which she outlined her thoughts on why commercial wind turbines should not be welcomed in Henry County. She asked the council to consider drafting and supporting a resolution denouncing wind farm development

Following discussion of the idea, council member Valerie Trump said she supported the idea of signing such a resolution and following a unanimous vote, the council instructed town attorney Gregg Morelock to prepare such a resolution for the council’s Sept. 20 meeting.

At the Sept. 20 meeting, and before the proposed resolution was presented, the council heard from Apex Clean Energy representative Brenna Gunderson. She presented information about the wind farm Apex has in mind for Henry County. Gunderson countered many of the negative claims Huhn made the previous month and answered several questions posed by council members.

Council member Trump in particular expressed concerns about the reliability of wind power, where power generated locally would go and who it would benefit, the impact turbines might potentially have on property values and the possibility the turbines would adversely impact future economic development efforts. Gunderson addressed each of those concerns, though Trump did not appear to be satisfied with the responses she received.

“We have a two mile fringe outside the town for economic development and when I look at it, you’re setting those turbines inside that two mile fringe,” Trump said.

Additional questions were raised and comments made before council president Sarah Ward said, “The commissioners are going to make the decision, is that right? It doesn’t matter what the town says anyway. ... I think if we’re smart we just keep our nose out of it. We’ve got enough problems to take care of in our own town.”

Several audience members spoke in favor of wind development in Henry County, which was just the opposite of what happened at the council meeting a month prior.

Posted by Marcia Oddi on Friday, September 23, 2016
Posted to Indiana Government

Ind. Gov't. - Kentucky's Governor and Attorney General are of opposite parties, what could go wrong?

Bill Chapell of WBOI.org, a Kentucky NPR station, reported yesterday afternoon in a story headed "Kentucky Governor Can't Cut Universities' Budgets, Court Rules," in a story that begins:

Ruling on a lawsuit filed by a state's Democratic attorney general against its Republican governor, the Kentucky Supreme Court says Gov. Matt Bevin doesn't have the authority to unilaterally slice money out of a state university's budget.
More from the story:
Weeks after Bevin took office, he called for 4.5 percent cuts across much of Kentucky's budget — and when the politically divided state legislature didn't embrace those mid-year cuts, Bevin issued an order imposing them on the university and community college system at the end of March.

In the majority's 50-page opinion
that both affirms the attorney general's right to sue the governor and reverses the governor's budget decree, the Kentucky Supreme Court wrote, "the Governor cannot order the boards of the Universities not to spend funds appropriated to them."

Posted by Marcia Oddi on Friday, September 23, 2016
Posted to Indiana Government

Ind. Decisions - 7th Circuit decided one Indiana case yesterday, re claim of overtime under FLSA

In James Melton v. Tippecanoe County, Indiana (ND Ind., Springmann), an 11-page opinion, Judge Kanne writes:

After he disregarded an order from his supervisor that he could not change his schedule to make up for missed time, Plaintiff James Melton was discharged from his job at the Tippecanoe County Surveyor’s Office. Melton later filed suit against the County, alleging that dur‐ ing his time there, he had arrived early and worked through lunch every day and was not compensated for overtime in violation of the Fair Labor Standards Act. The district court granted summary judgment to the County because Melton had not designated sufficient evidence to find that he worked more than forty hours in a workweek. We affirm. * * *

In his complaint, Melton alleged that his timecards did not accurately reflect the hours he worked because when he put his actual time worked on his timecard, the office secre‐ tary would reduce his hours to 37.5, telling him that he could not be paid for more than 37.5 hours in a workweek. Specifi‐ cally, Melton claimed that he was not compensated for (1) time worked before 8 a.m. even though his supervisor told him to come to work early every day and (2) time worked through all or part of his floating lunch each day.

In support of his claim that he was not properly compen‐ sated, and in response to discovery requests, Melton pro‐ duced a spreadsheet created from memory that purports to show the dates and times he worked during the whole of his employment with Tippecanoe County.  * * *

As we explained earlier, even if Melton had put forth his evidence supporting his claim of overtime lunch hours, his testimony by spreadsheet is so “internally inconsistent [and] implausible on its face” that it cannot satisfy Melton’s bur‐ den to establish a prima facie FLSA case. Seshadri, 130 F.3d at 802. Melton knew that the County was arguing that his rec‐ ollection and spreadsheet were “unreliable,” and he certain‐ ly had a meaningful opportunity to address that argument. Instead, he deemed it “premature.” It was not, and neither was the district court’s grant of summary judgment.

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

Thursday, September 22, 2016

Ind. Decisions - 7th Circuit decides Soccer Labor Dispute

In United States Soccer Federation v. United States National Soccer Team Players Ass'n (ND Ill.), a 22-page opinion, Judge Kanne writes:

Soccer is called “the beautiful game,” but the collective-bargaining process behind the sport can be ugly. This case matches Plaintiff United States Soccer Federation, Inc. (“US Soccer Federation”), the national governing body for soccer in the United States, against Defendant United States National Soccer Team Players Association (“Players Association”), the labor union for members of the Men’s National Team, in a dispute over their current collective bargaining agreement (“CBA”) and uniform player agreement (“UPA” and collectively with CBA, “CBA/UPA”).

The present case kicked off in 2013, when the Players Association disapproved the US Soccer Federation’s proposed tequila poster advertisement, which contained player images. Counterattacking, the US Soccer Federation issued a notice, declaring that the CBA/UPA does not require Players Association approval for use of player likenesses for six or more players in print creative advertisements by sponsors, based on the express terms of the agreement. Crying foul, the Players Association filed a grievance and demanded arbitration, arguing that the CBA/UPA does require this, based on the past practice of the parties.

The arbitrator issued an award in favor of the Players Association. The district court confirmed the arbitrator’s award and granted summary judgment for the Players Association. The US Soccer Federation appealed. We reverse. * * *

In conclusion, we recognize that a goal of arbitration is to provide the parties with “swift, inexpensive and final decisions,” but “this does not vitiate judicial review of an arbitrator’s decision.” Anheuser-Busch, 280 F.3d at 1144. Here, just as the parties agreed to arbitration, they also agreed “to limit the arbitrator’s authority and preserve[] their right to challenge decisions when the arbitrator had reached out and rendered a decision that stray[ed] beyond his delegated authority and is barred by the negotiated contract.” Id.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court is REVERSED. This case is REMANDED with instructions to VACATE the award of the arbitrator and enter judgment in favor of the US Soccer Federation.

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

Ind. Gov't. - "Are Fishing and Hunting a Right or a Privilege? Indiana and Kansas Will Decide"

That is the heading to a September 22nd story in Governing, by J.B. Wogan, that reports:

Voters typically pass right-to-hunt-and-fish measures with large margins, and only one state's voters -- Arizona -- have rejected such an initiative, according to the National Conference of State Legislatures.
Currently 19 states have the ban in their constitutions.

See also this longer ILB post from yesterday.

Posted by Marcia Oddi on Thursday, September 22, 2016
Posted to Environment | Indiana Government

Courts - "Supreme Court Justices Won’t Answer Questions About Their Health"

Tony Mauro has just posted this interesting article at Law.com. A few quotes:

The intense debate over how transparent presidential nominees Hillary Clinton and Donald Trump should be about their health gives rise to another question: What about the health of Supreme Court justices?

After all, the average age of the justices is 69—right between Clinton, who is 68, and Trump, who is 70. And the most extensive medical information about a Supreme Court justice that has been made public pertains to Antonin Scalia—though it was revealed after he died in February.

But the high court marches to its own tune. So when Law.com asked all eight current justices to make public their health statuses earlier this month, a single response came back from Chief Justice John Roberts Jr. this week. His answer, in effect, was: “Thanks for asking, but we’ll release information about our health when we feel the public needs to know.”

Later in the lengthy article:
Concern over the lack of health information about the court predated the recent squabble between Clinton and Trump over their health disclosures. For some, Scalia’s death on Feb. 13 at a Texas hunting resort justified why justices should be more forthcoming.

It was not until after Scalia’s death that the public learned, through a letter from the attending physician of Congress that Scalia had “many chronic medical conditions,” including high blood pressure, diabetes, chronic obstructive pulmonary disease, obstructive sleep apnea and coronary artery disease. Dr. Henry Monahan, whose office treated Scalia for 29 years, wrote the letter to the Texas judge who was assessing the cause of Scalia’s death, and the letter was made public only through a public records request under Texas law.

“Think about how much we learned about Scalia’s health after his death,” said court scholar David Garrow, professor at the University of Pittsburgh School of Law. “It was much worse than we knew.”

George Washington University Law School associate dean Alan Morrison, a longtime court-watcher, said that, if Scalia’s ailments had been publicly known before his death, the justice might have felt compelled to retire, resulting in a “more orderly succession.”

Posted by Marcia Oddi on Thursday, September 22, 2016
Posted to Courts in general

Law - "How The State Bar Of Michigan Is Embracing Technology"

A good article by Nicole Back at Above the Law. A sample:

[The Michigan] Bar established a “21st Century Task Force” with 5 enumerated goals: 1) increase transparency in the legal marketplace, 2) provide better practical skills training for lawyers, 3) use technology to decrease the complexity of legal processes, 4) modernize the rules of professional responsibility, and 5) reduce law firms’ cultural resistance to innovation.

Posted by Marcia Oddi on Thursday, September 22, 2016
Posted to General Law Related

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 Termination of the Parent-Child Relationship of: L.M. and S.M. (Minor Children); M.C. (Father) v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (10):

Darwick Young v. State of Indiana (mem. dec.)

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

Jimmy Isbell v. State of Indiana (mem. dec.)

Devon Ballard v. State of Indiana (mem. dec.)

Brian W. Ellis v. State of Indiana (mem. dec.)

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

Jason Alexander Kays v. State of Indiana (mem. dec.)

Morgan Christopher Foster v. State of Indiana (mem. dec.)

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

Derrick Rafael Burt v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, September 22, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Clark County chief public defender says she was asked to resign"

From the Clark Co. News & Tribune, a story by Elizabeth DePompei that begins:

Clark County Chief Public Defender Amber Shaw said her position with the county is "still up in the air."

A job posting for Shaw's position was posted at the Clark County Government Center on Friday, Sept. 16, with applications due by Wednesday. The posting came less than three months after Shaw was hired by the Clark County Public Defender Board.

Board president Jennifer Culotta and members Ann Pfau and Mark Robinson have not returned multiples messages left last week and Wednesday. According to Shaw, the board asked her to resign from the chief public defender position during a public board meeting Sept. 15.

"I was stunned," Shaw said. "I wasn't given a reason … just that it was in the best interest of the county and the public defender's office, and that's all I’ve been told."

Posted by Marcia Oddi on Thursday, September 22, 2016
Posted to Indiana Courts

Ind. Gov't. - Interim Study Committee on Courts and the Judiciary today

The Interim Study Committee on Courts and the Judiciary will hold its second meeting of the interim at 1:30 today, September 22nd, in Room 404 of the Stathouse.

Its first meeting, held August 30th, was devoted to civil rights issues related to gender identity and sexual orientation.

Today's agenda lists:

1. Requests for new courts or changes to existing courts.
2. Update on the conversion of commissioners to magistrates in Marion County.
3. Visitation, communication, and interaction with a protected person.
You may watch the meeting live here.

Posted by Marcia Oddi on Thursday, September 22, 2016
Posted to Indiana Government

Wednesday, September 21, 2016

Ind. Decisions - 7th Circuit decides one Indiana case today, denying do-over of 2014 Marion County Superior Court primary

In Gregory Bowes v. Indiana Secretary of State (SD Ind., Young), a 16-page opinion, Judge Young writes:

Plaintiffs Gregory P. Bowes and Christopher K. Starkey lost in the May 2014 Democratic pri mary election for Marion County Superior Court judges. A few months later, and just before the general election, the district court for the Southern District of Indiana held that the statute establishing the system for the election of such judges, Indiana Code § 33–33–49–13, was unconstitutional. That decision was affirmed by this Court. Plaintiffs then sought a special election, which they argued was the only way to vindicate their constitutional rights. The district court held that a special election was not appropriate and granted defendants’ motion for summary judgment. For the reasons that follow, we agree and affirm. * * *

In sum, the district court was within its discretion to conclude that plaintiffs’ request for relief was not timely and that the state’s significant interest in governing without disruption outweighed plaintiffs’ interest in being placed on the ballot.

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

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 12 NFP memorandum decision(s))

For publication opinions today (2):

In Andre C. Coleman v. State of Indiana, a 9-page opinion, Judge Mathias writes:

Following a bench trial in Marion Superior Court, Andre Coleman (“Coleman”) was convicted of Class B misdemeanor public intoxication. He was ordered to serve 365 days in jail with 363 days suspended to probation. Coleman presents two issues on appeal, which we restate as whether the trial court abused its discretion in imposing a supplemental public defender fee, probation fees, and a drug and alcohol treatment fee.

We vacate the imposition of the supplemental public defender and probation fees and remand for proceedings consistent with this opinion. * * *

Based on the record, we conclude that the trial court did not impose a supplemental public defender fee or any of the other probation fees reflected on Coleman’s case transaction summary. The imposition of these fees appears to be an error by the probation department. We therefore vacate these fees and remand to the trial court to hold an indigency hearing. Further, if the trial court concludes that Coleman is not indigent, it should order Coleman to pay a $150 alcohol and drug services fee.

In Charles R. Cole, III v. State of Indiana, an 11-page opinion, Sr. Judge Barteau writes:
Cole raises one issue, which we restate as: whether the post-conviction court erred in rejecting his claim of ineffective assistance of trial counsel. * * *

Cole argues the post-conviction court erred by rejecting one of his claims of ineffective assistance of trial counsel. Specifically, he contends his attorneys should have objected to the State’s amendment of the charging information to add an additional count of robbery because the amendment was untimely. The State responds that the prosecutor was allowed under then-existing caselaw to file the amendment, so Cole’s counsel did not render ineffective assistance by declining to object. * * *

Cole has failed to establish that the post-conviction court erred. For the reasons stated above, we affirm the judgment of the trial court.

NFP civil decisions today (6):

David Heavrin, Jr. v. Sarina Kaufman Tearman (mem. dec.)

In re the Termination of the Parent-Child Relationship of: R.T., W.T, A.T., K.T., X.J., and A.J., M.C. (Mother) v. Indiana Department of Child Services (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of I.L. (Child) and K.D.W. (Father); K.D.W. (Father) v. The Indiana Department of Child Services (mem. dec.)

City of Jeffersonville, Indiana, and City of Jeffersonville Sanitary Sewer Board v. Enviornmental Management Corporation (mem. dec.)

New Palestine Plaza, Inc. v. Richards Real Estate, LLC (mem. dec.)

Monique J. Hartley (Mansfield) and Mark J. Mansfield v. Amity Reading (mem. dec.)

NFP criminal decisions today (6):

K.G. v. State of Indiana (mem. dec.)

Jeffrey K. Mitchell v. State of Indiana (mem. dec.)

DeAndre Jordan v. State of Indiana (mem.dec.)

Michael A. Combs v. State of Indiana (mem. dec.)

Donald C. Newlin v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Wednesday, September 21, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Court of Appeals hears dispute over "who owns the Lake Michigan beach?"

Dave Stafford of The Indiana Lawyer has good coverage today of the September 8th Court of Appeals oral argument in Don Gunderson, et al, v. State of Indiana, et al. The argument apparently was not covered by any other news service.

The ILB on May 18 had a long post on the then-upcoming argument. Here is the docket, and here is a link to the videocast of the September 8th COA oral argument.

Posted by Marcia Oddi on Wednesday, September 21, 2016
Posted to Indiana Courts

Courts - More on: Illinois wine shipping law challenged in federal court

Updating this ILB post from September 6th, Wine Speculator has a long story today by Ben O'Donnell on the lawsuit filed in federal court in Chicago suing the State of Illinois "over its regulations hampering out-of-state wine sellers." A Fort Wayne wine retailer is among the plaintiffs. Some quotes:

The book on modern direct-to-consumer wine-shipping law was written at the U.S. Supreme Court in 2005 with the Granholm v. Heald decision. Now, wine retailers are hoping to write their own chapter in the story. Earlier this month, lawyers filed a complaint in a federal court, arguing that an Illinois prohibition on retailer-to-consumer direct shipping is unconstitutional. The same firm is preparing a similar complaint in Missouri.

The Illinois suit, filed on Sept. 1, named Lebamoff Enterprises, Inc. et al v. Rauner et al, states that Irwin Berkley, a Chicago-area resident, wants to buy "wines that are sold-out in Illinois but are still available from retail stores in other states, older vintage wines and limited-production allocated wines" and have them shipped to his home from Cap n' Cork, a chain of Indiana stores owned by fellow plaintiff Lebamoff Enterprises, but cannot.

"We think that the principles of Granholm apply to retailers just as well," Robert Epstein, lead counsel for the plaintiffs, told Wine Spectator. "And we're going to test it." * * *

Lebamoff comes just after Illinois tightened its prohibition on out-of-state wine retailers. On Aug. 26, Gov. Bruce Rauner signed a new law stiffening penalties against out-of-state parties for shipping wine into the state without the necessary licenses. Even small-scale shipments of wine could be prosecuted as a Class 4 felony, which carries a potential one- to three-year prison sentence.

ILB: Here is a long list of earlier ILB posts on wine shipping.

Posted by Marcia Oddi on Wednesday, September 21, 2016
Posted to Courts in general

Ind. Gov't. - "Hoosiers to vote on hunting rights this fall"

Maureen Hayden, CNHI State Reporter, takes a good look today at the constitutional amendment that will appear on November's ballot. Some quotes from the story published in the Terre Haute Tribune Star:

Voters this fall may enshrine a right to hunt and fish in the same article of the state Constitution that protects freedom of speech and the right to a speedy trial.

Included on the same ballot on which Hoosiers will pick the next president and governor is Public Question 1, which asks if they want to “forever preserve” the right to harvest the state’s wildlife.

If voters approve the so-called Right to Hunt and Fish amendment, Indiana will join 19 other states that have enshrined similar language in their constitutions as part of an effort spearheaded by the National Rifle Association. * * *

“No one’s rights are under attack,” said Erin Huang, head of the Humane Society’s Indiana chapter.

She said the measure, once locked into the Constitution, could complicate the management of the state’s wildlife and open the state to lawsuits against hunting restrictions, such as limits on deer season.

In addition to declaring a right to hunt, fish and harvest wildlife, the amendment says “hunting and fishing shall be a preferred means of managing and controlling wildlife.” * * *

For 20 years, the NRA has worked with state legislatures on similar measures, saying they're needed to stave off well-funded efforts by national animal advocacy groups to ban hunting. * * *

The full text of Public Question 1 on this fall's ballot, the proposed "Right to Hunt and Fish" amendment, reads:

Article 1 of the Constitution of the State of Indiana is amended by adding a new section to read as follows:

Section 39. (a) The right to hunt, fish, and harvest wildlife:

(1) is a valued part of Indiana's heritage; and

(2) shall be forever preserved for the public good.

(b) The people have a right, which includes the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to the laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly to:
(1) promote wildlife conservation and management; and

(2) preserve the future of hunting and fishing.

(c) Hunting and fishing shall be a preferred means of managing and controlling wildlife.

(d) This section shall not be construed to limit the application of any provision of law relating to trespass or property rights.

ILB: Notably, this proposed addition to the Bill of Rights reads much like a statute. But if ratified, it will be part of Indiana's Constitution and rules of constitutional interpretation will apply. Among these is the ability of the courts to examine the drafters' intent, just as they look to the 1850 Indiana Constitutional Debates when construing other provisions of our constitution.

[More] The ILB has been writing about this since 2005 - see the long list.

Posted by Marcia Oddi on Wednesday, September 21, 2016
Posted to Environment | Indiana Government

Tuesday, September 20, 2016

Ind Courts - Tippecanoe County Courthouse dome encased in scaffolding

Here is the scaffolding photo, from this story today by Dave Bangert in the Lafayette Journal & Courier, headed "A climb to top of the courthouse dome." There is also a video and many more photos. Some quotes:

Tippecanoe County commissioners on Tuesday, Sept. 20, 2016, scaled the scaffolding around the Tippecanoe County Courthouse dome to pick paint colors and to take in the progress of a $3.5 million restoration project. * * *

“I’m not a big fan of heights, but so far I’ve been OK, so these guys should be OK, too,” said Greg Helms, a senior project manager with Kettelhut Construction. “It is a pretty amazing place to be. I still take pictures when I’m up here.”

Commissioners did the same, steeling any nerves and holding tight to railings with one hand and squeezing smartphones with the other to get photos that looked down on the 10-story Centier Bank building a block away. From Lady Justice’s level, the view stretched beyond Purdue University to the west and traced the Wabash River beyond the Sagamore Parkway bridge to the north.

Posted by Marcia Oddi on Tuesday, September 20, 2016
Posted to Indiana Courts

Ind. Gov't. - Could Indiana change how its legislative districts are drawn?

Dan Carden reports in the NWI Times on the "penultimate meeting Monday [of] the state’s two-year Special Interim Study Committee on Redistricting." The story begins:

It appears likely that Hoosier lawmakers next year at least will consider putting a citizen commission in charge of the once-a-decade process of redrawing legislative district boundaries.

Posted by Marcia Oddi on Tuesday, September 20, 2016
Posted to Indiana Government

Ind. Gov't. - Legislative committee to look at administrative adjudiciation tomorrow

The Interim Study Committee on Corrections and Criminal Code will hold its first meeting of this interim tomorrow, September 21st.

The agenda indicates that the meeting will be focused on administrative law, with staff reports on central administrative law panels, testimony from the AG's office on the Indiana administrative law process, and testimony of attorneys practicing before administrative adjudicative entities.

The Committee will also hear from Senator Steele, who authored SEA 1, which created the Administrative Law Study Commission. That Commission is/was to send a final report to the Legislative Council by Nov. 1, 2016.

You may watch it live here, at 1:30, Room 4040 of the Statehouse.

Posted by Marcia Oddi on Tuesday, September 20, 2016
Posted to Administrative Law | Indiana Government

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

For publication opinions today (2):

In State Farm Mutual Automobile Insurance Company v. Sean Woodgett, a 16page opinion, Judge Brown writes:

State Farm Mutual Automobile Insurance Company (“State Farm”) appeals the trial court’s order on verdict and judgment in favor of Sean Woodgett. State Farm raises three issues, one of which we find dispositive and which we revise and restate as whether the court abused its discretion in excluding certain evidence. We reverse and remand. * * *

The dispositive issue is whether the trial court abused its discretion in excluding evidence of the second automobile accident. We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. * * *

State Farm argues that evidence of the second accident was admissible to inform the jury as to a possible cause of Woodgett’s migraine headaches and that the court abused its discretion in excluding this evidence, ruling that it “was not admissible because it was not supported by any expert medical testimony to demonstrate a connection . . . .” * * *

The court abused its discretion when it excluded evidence of a second automobile accident involving Woodgett, which was inconsistent with substantial justice. We reverse the court’s judgment and remand for proceedings consistent with this opinion. * * *

For the foregoing reasons, we reverse the court’s judgment and remand.

In Christina Schermerhorn v. State of Indiana, a 17-page opinion, Sr. Judge Sharpnack writes:
Schermerhorn argues the trial court should have allowed her to present to the jury the August 2011 audio recording of Stanley choking his teenage son in her presence, along with her testimony about the incident. She further contends the court’s error deprived her of her right to present a defense under the federal and state constitutions. The State responds that Schermerhorn’s evidence was inadmissible under Indiana’s Rules of Evidence and, as a result, her constitutional rights were not violated. * * *

Pursuant to Indiana Code section 35-31.5-2-109, the “past course of conduct” is limited to “repeated physical or sexual abuse” of the defendant by the victim. The statutes do not address acts by the victim against third parties in the defendant’s presence.

Based on the statutory language, we cannot conclude that the recording of Stanley purportedly choking his teenage son two years before the crimes at issue was relevant to Schermerhorn’s effects of battery defense. * * *

In any event, even if the recording should have been admitted, the error was harmless. An error in the exclusion of evidence is harmless if its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect the defendant’s substantial rights. * * *

Schermerhorn argues the trial court should have given her proposed jury instructions on the effects of battery. The State claims in response that the court’s instructions correctly stated the law.

NFP civil decisions today (3):

In the Term. of the Parent-Child Relationship of: T.G. and A.G. (Minor Children) and J.B. (Mother) v. The Indiana Department of Child Services (mem. dec.)

Rita Horn and Charles Horn v. Cesar Antonio Jara, M.D. and Northwest Indiana Cardiovascular Physicians, P.C. (mem. dec.)

Z.C. v. J.K. (mem. dec.)

NFP criminal decisions today (2):

Cesar A. Castaneda v. State of Indiana (mem. dec.)

Jesse E. Kaufman v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, September 20, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "To Work on Parole Boards, No Experience Necessary"

That is the heading to this article in the September issue of Governing, written by Katherine Barrett & Richard Greene. The intro:

The people who decide criminals’ freedom are often ill-equipped to make informed decisions. That’s where risk assessment tools come in, but they aren't always used.
Here is the website of the five-member Indiana Parole Board. IC 11-9-1-1 requires that to qualify for membership, a person must have at least a bachelor's degree, or 10 years of law enforcement experience. In addition, the person "must have the skill, training, or experience to analyze questions of law, administration, and public policy." Members shall devote full time to their duties.

Posted by Marcia Oddi on Tuesday, September 20, 2016
Posted to Indiana Government

Monday, September 19, 2016

Ind. Courts - Commercial courts and e-filing focus of Supreme Court symposium on Sept. 27

As first reported in more depth in this Sept. 2nd post:

The Indiana Supreme Court is hosting a Continuing Legal Education (CLE) symposium to provide information about commercial courts and e-filing.

General counsel from Indiana businesses, lawyers, lawyer-legislators, and other business leaders are invited to the 90-minute learning opportunity.

The event will take place on Tuesday, September 27 at 2:00 p.m. EDT at the State House in the Indiana Supreme Court Courtroom.

There is no indication that the event will be videocast and archived, although access to the seminar could be very beneficial to lawyers, business people, and others throughout the state who may not be able to travel to Indianapolis next Tuesday, and who are not in need of CLE credits.

Posted by Marcia Oddi on Monday, September 19, 2016
Posted to E-filing | Ind. Commercial Courts | Indiana Courts

Ind. Courts - More on "Breaking the code on a Chicago mystery from WWII"

Updating this ILB post from Sept. 16th on the 7th Circuit's 2-1 decision last Friday in Elliot Carlson v. USA, John Keilman reported in the Chicago Tribune last Friday in a long story headed "Secret papers from WWII espionage probe of Tribune could go public," that began:

Te Battle of Midway was still raging in the Pacific Ocean when a bombshell of a different sort exploded on the front page of the Chicago Tribune: The U.S. Navy, the newspaper reported, had obtained advance knowledge of what the Japanese fleet was going to do.

The story, published June 7, 1942, was awash in detail, naming the Japanese vessels involved in the battle and the strategy they were pursuing. Anyone reading the account could have gleaned an unstated but critical piece of information — America had cracked Japan's naval code.

That set off a furious legal fight in which the federal government tried to prosecute Tribune journalists for violating espionage laws. A prosecutor even impaneled a grand jury to seek a criminal indictment.

The grand jury ultimately decided not to indict the journalists, but for 74 years, the testimony that led to that decision has remained under wraps. Now a Maryland historian is closer than ever to revealing those secrets, only to face the opposition of a familiar foe — the federal government.

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

Ind. Gov't. - "Indiana yet to get high on idea of legalized marijuana "

That is the headline to Mauureen Hayden's story this weekend in the Kokomo Tribune. The long story begins:

State legislatures across the nation seem to be increasingly high on the idea of legalizing marijuana for recreational or medicinal use.

Lawmakers in eight states have cleared the way for November ballot initiatives to allow voters to weigh in on a variety of pot initiatives — potentially making 2016 the most expansive year for marijuana yet.

Indiana isn’t among them — and likely won’t follow that path anytime soon.

“Too many legislators are still afraid of it,” said state Sen. Karen Tallian, the Democratic legislator/grandmother/attorney who has tried for years to get her fellow lawmakers to hear her pot-related bills.

Posted by Marcia Oddi on Monday, September 19, 2016
Posted to Indiana Government

Courts - NYT editorial on risk-based scoring for release without bail

The NY Times had an interesting editorial Sept. 16th headed "A Formula to Make Bail More Fair." Some quotes:

San Francisco has introduced a new scoring system to help judges determine bail based on a defendant’s risk of committing another crime or failing to appear in court. * * *

The new scoring system, developed by the Laura and John Arnold Foundation, uses nine factors to estimate risk, including a defendant’s age, whether the charge is a violent offense, prior convictions and previous failures to appear in court. It does not take into account race or gender, and judges still have the final say in setting bail.

This tool is in use in about 30 other cities and states, several of which have seen encouraging results. After Lucas County, Ohio, which includes Toledo, began using the Arnold Foundation tool, the share of defendants released without bail rose to 28 percent from 14 percent. The percentage arrested while out on bail fell to 10 from 20, and the percentage who failed to show up for trial dropped to 29 from 41. The number of people jailed in Mecklenburg County, N.C., dropped by 20 percent in the year after the county began using the tool. Crime did not increase. * * *

The use of scoring systems in criminal justice has raised concerns in the past. An analysis by ProPublica showed that an algorithm developed by the company Northpointe to aid in sentencing decisions wrongly predicted that black defendants would commit future crimes almost twice as often as it made the same mistake with white ones. While any algorithm that relies on criminal history could replicate inequalities in the criminal justice system, the places using the Arnold system have not found the same race-based problems.

It is too soon to tell how the new bail system will perform in San Francisco; some lawyers have expressed skepticism. The courts will have to make sure it does not disproportionately penalize minority defendants.

ILB: For information on the recently instituted Indiana bail-reform process, start with this post from Sept. 9th.

Posted by Marcia Oddi on Monday, September 19, 2016
Posted to Courts in general

Ind. Decisions - "COA: Woman's convictions must be 'expunged'"

Mindy M. Cline v. State of Indiana (ILB summary here), a Sept. 15th Court of Appeals opinion, is the subject of a Sept. 18th story by Douglas Walker in the Muncie Star-Press. Some quotes:

PORTLAND – A state appeals court has ordered Jay Circuit Court Judge Brian Hutchison to expunge a former Dunkirk woman's convictions for dealing in methamphetamine and forgery.

In a ruling last Nov. 13, Hutchison declined to expunge records of the prosecution of Mindy M. McCowan, who was 22 when she was convicted of forgery in August 2003 and 23 when she pleaded guilty to dealing in meth in September 2004.

At a hearing a day earlier, Hutchison had told McCowan he didn't “have any fond memories of you... (and) your criminal behavior.”

The judge focused in part of McCowan's meth-related conviction.

“Putting it bluntly, it's a pain in my ass,” Hutchison said. “I have (to) deal with meth and heroin every damn day here, and I've... I've had a belly full. I'm not doing favors for people who are causing these problems in Jay County.”

In a 2-1 ruling last week, the Indiana Court of Appeals said “the trial court abused its discretion,” adding that "all evidence presented... mitigate toward expungement."

McCowan was released from prison in 2007 and completed probation in 2010. She has since maintained employment and earned an associate's degree and professional certifications, according to the ruling.

In that majority opinion, Judge L. Mark Bailey wrote that Hutchison's “articulation of (his) evaluative process to be particularly troubling.”

Posted by Marcia Oddi on Monday, September 19, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending September 16, 2016

Here is the Clerk's transfer list for the week ending Friday, September 16, 2016. It is two pages (and 21 cases) long.

Three transfers were granted last week:

Posted by Marcia Oddi on Monday, September 19, 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 of 9/19/16):

Thursday, September 22

Next week's oral arguments before the Supreme Court (week of 9/26/16):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/19/16):

Next week's oral arguments before the Court of Appeals (week of 9/26/16):

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, September 19, 2016
Posted to Upcoming Oral Arguments

Friday, September 16, 2016

Ind. Courts - "Judge sharply questions defense of Indiana's Syrian refugee ban"

Updating a long list of earlier ILB posts on the State's ban of Syrian refugees, Stephanie Wang today has a blow-by-blow account of much of Wednesday's oral argument before the 7th Circuit on a challenge to the ban, brought by the ACLU of Indiana.

You may listen to the oral argument for yourself via this link. The first voice you hear will be Judge Posner, the other two judges are Easterbrook and Sykes.

Posted by Marcia Oddi on Friday, September 16, 2016
Posted to Ind. (7th Cir.) Decisions | Indiana Government

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 12 NFP memorandum decision(s))

For publication opinions today (2):

In Jerry Arnold d/b/a Arnold's Jewelry and Gifts, Inc. v. Marcellus Long, Jr., Marcellus Long, Jr., P.C. a/k/a Law Office of Marcellus Long, P.L.L.C., and Hatchett Dewalt & Hatchett, P.L.L.C., et al., a 16-page opinion, Judge Riley writes:

Appellant-Plaintiff, Jerry Arnold d/b/a Arnold’s Jewelry and Gifts, Inc. (Arnold), appeals the grant of a motion to dismiss made by AppelleesDefendants, Marcellus Long Jr.; Marcellus Long Jr. P.C. a/k/a law office of Marcellus Long PLLC (Long); and Hatchett DeWalt & Hatchett PLLC (Hatchett DeWalt) (collectively, Appellees). We affirm.

Arnold raises three issues on appeal, one of which we find dispositive and restate as: Whether the trial court properly dismissed Arnold’s Complaint for lack of personal jurisdiction. * * *

As noted, the reasonableness of exercising jurisdiction over a defendant is determined by weighing five factors, namely (1) the burden on the defendant; (2) the forum State’s interest in adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenience and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several States in furthering fundamental substantive social policies. See LinkAmerica, 857 N.E.2d at 967. * * *

Overall, we conclude that exercising jurisdiction over the Appellees would offend notions of fairness and reasonableness. Accordingly, the trial court properly dismissed Arnold’s Complaint for lack of personal jurisdiction.

In light on the foregoing, we conclude that the trial court properly dismissed Arnolds’ Complaint for lack of personal jurisdiction.

In Bradley Starr by Next Friend Heather Starr-Haller and Heather Starr-Haller v. State Farm Automobile Insurance Company and the Indiana Bureau of Motor Vehicles, a 13-page opinion, Judge Najam writes:
Heather Starr-Haller, on behalf of herself and her minor son, Bradley, appeals the trial court’s entry of summary judgment for State Farm Mutual Automobile Insurance Company (“State Farm”) on Starr-Haller’s complaint. Starr-Haller raises a single issue for our review, namely, whether the trial court erred when it entered summary judgment for State Farm. We affirm. * * *

In sum, the undisputed designated evidence shows that State Farm did not waive its right to deny Starr-Haller the coverage she now claims. The undisputed designated evidence likewise shows that State Farm is not estopped from denying her that coverage. Accordingly, State Farm met its burden to demonstrate that it is entitled to judgment as a matter of law, and Starr-Haller has failed to designate evidence to create a genuine issue of material fact on her claims against State Farm. Thus, we affirm the trial court’s entry of summary judgment for State Farm.

NFP civil decisions today (2):

In Kathy Phariss, Clara Phariss by Next Friend of, Kathy Phariss v. Sara Haynes, Rick Doepping Personally and d/b/a Shangri-La Farms (mem. dec.), an 11-page, 2-1 opinion reversing the trial court, Judge Barnes writes:

Clara Phariss and her mother and next friend Kathy Phariss appeal the trial court’s order setting aside a default judgment against Sara Haynes. We reverse and remand.

The sole issue is whether there was a sufficient evidentiary basis for the trial court to set aside the default judgment * * *

Doepping/Shangri-La Farms contend that the unverified statements contained within the motion to set aside should have been sufficient to have the default judgment vacated. They argue that requiring a movant to present some admissible evidence to support a motion to set aside default judgment constitutes a re-writing of Trial Rule 60(B) and that the rule does not expressly contain any such requirement. Regardless, the rule has been consistently interpreted for decades by the courts of this state to have such a requirement. See, e.g., Bross, 466 N.E.2d at 469. The Indiana Supreme Court has never questioned that interpretation or the requirement that a motion to set aside default judgment must be supported by some quantum of admissible evidence. We continue to adhere to that requirement today. Because Haynes did not support her motion to set aside with any admissible evidence, the trial court abused its discretion in setting aside the default judgment.

Conclusion. The trial court abused its discretion in setting aside the default judgment in favor of the Pharisses and against Haynes. We reverse the granting of that motion and remand for further proceedings.

Riley, J., concurs.
Bailey, J., concurs and dissents with separate opinion. [that begins at p. 8] I concur with the majority’s conclusion that because Haynes failed to support her motion with admissible evidence of excusable neglect, the trial court abused its discretion in setting aside the default. However, because the measure of damages in this case was not certain and liquidated, the trial court should have held a damages hearing before entering judgment in the sum of $50,000. Accordingly, I would reinstate the entry of default, but would set aside the damages portion of the judgment and on remand instruct the court to hold a damages hearing at which Haynes may appear and defend.

Phillip David Long and Kathy Long v. Michael J. Lopez (mem. dec.)

NFP criminal decisions today (10):

Phillip M. Geans v. State of Indiana (mem. dec.)

Jay E. Millen v. State of Indiana (mem. dec.)

Lindsey P. Smith v. State of Indiana (mem. dec.)

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

Johnathan L. Bean v. State of Indiana (mem. dec.)

Raihiem Johnson v. State of Indiana

Jaaz Alexander Jones v. State of Indiana (mem. dec.)

William Wilbert Ward-Bey v. State of Indiana (mem. dec.)

Jeremy D. Washington v. State of Indiana (mem .dec.)

Nathan Hummel v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, September 16, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "What Is Notre Dame’s Police Force Hiding From ESPN?"

That is the headline to this long Above the Law story today by Steve Silver on Tuesday's oral argument in the ESPN v. Notre Dame case.

Posted by Marcia Oddi on Friday, September 16, 2016
Posted to Indiana Courts

Ind. Courts - "Breaking the code on a Chicago mystery from WWII"

Yesterday, in Elliot Carlson v. USA, a fascinating 2-1, 34-page opinion authored by Chief Judge Wood, with Judge Sykes in dissent, the ruling begins:

During World War II, the U.S. Office of War Information warned the populace that “loose lips sink ships.” See The Phrase Finder, http://www.phrases.org.uk/ meanings/237250.html (last visited Sept. 15, 2016). But what if the ships sailed some 70 years before the tongues wag? That is the problem we face in the present case, in which Elliot Carlson, along with a number of scholarly, journalistic, and historic organizations, seeks access to grand-jury materials sealed decades ago. The materials concern an investigation into the Chicago Tribune in 1942 for a story it published revealing that the U.S. military had cracked Japanese codes. The government concedes that there are no interests favoring continued secrecy. It nonetheless resists turning over the materials, on the sweeping ground that Rule 6(e) of the Federal Rules of Criminal Procedure entirely eliminates the district court’s common-law supervisory authority over the grand jury. It takes the position that no one (as far as we can tell) has the power to release these documents except for one of the reasons enumerated in Rule 6(e)(3)(E). If that is so, then Carlson and his allies must fail, because his request is outside the scope of Rule 6(e).

We find nothing in the text of Rule 6(e) (or the criminal rules as a whole) that supports the government’s exclusivity theory, and we find much to indicate that it is wrong. In fact, the Rules and their history imply the opposite, which is why every federal court to consider the issue has adopted Carlson’s view that a district court’s limited inherent power to supervise a grand jury includes the power to unseal grand-jury materials when appropriate. Because the parties agree that this is an appropriate instance (if, in fact, the district court has this power) we affirm the order of the district court. * * *

[Judges Sykes dissent begins on p. 25] Rule 6 of the Federal Rules of Criminal Procedure comprehensively governs the conduct of grand-jury proceedings, and subpart (e) of the rule requires that all matters occurring before the grand jury must be kept secret, subject to certain narrow exceptions. See FED. R. CRIM. P. 6(e)(2)(B), (e)(3)(E). The petitioners here—a group of historians and journalists—asked the district court to unseal grand-jury records from a World War II–era espionage investigation described in fascinating detail in Chief Judge Wood’s opinion. The documents have historical significance, but none of the rule’s exceptions to secrecy even arguably applies. To get around this impediment, the petitioners argued that the exceptions are permissive, not exclusive, and the district court has inherent authority to unseal grand-jury materials for reasons not covered by the rule—here, historical interest.

ILB: This Nov. 21, 2014 editorial in the Chicago Tribune presents some of the backstory. Some quotes:
[A] coalition of American and naval history groups and the national Reporters Committee for Freedom of the Press petitioned the U.S. District Court in Chicago to unseal the transcripts, evidently stored at a National Archives repository in College Park, Md.

We customarily don't tell judges how to rule. But the 50-page filing makes a strong case for breaching grand jury secrecy in what the petitioners call "the first and, to date, only attempt by the U.S. government to prosecute a member of the mainstream press for alleged violations of the Espionage Act of 1917."

Grand jury testimony is secret but, especially as the need for confidentiality recedes, not sacrosanct: Courts have unsealed proceedings in such historically significant cases as those of Richard M. Nixon's Watergate debacle, accused Soviet spy Alger Hiss, executed "atomic spies" Julius and Ethel Rosenberg, and Teamsters boss Jimmy Hoffa. Disclosures typically occur when the principals are dead, privacy issues are moot, and so are such concerns as national security.

This case appears to meet all the criteria for unsealing that other courts have used. The last witness whose identity is known died 17 years ago, and a current judge could order minimal redaction of any lingering threat to privacy.

Opening this testimony could explain how Johnston learned one of this nation's most valuable secrets, how perilous the Navy thought the leak was, and why the investigation halted; the filing alludes to the possibility that the Navy didn't want to tell grand jurors about its codebreaking coup. Another question: Did Roosevelt's administration seek an indictment to punish the Tribune for editorials or articles that had cast doubt on U.S. defense policy?

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

Courts - Results are in on: "Chief judge Timothy Evans in battle to keep job"

Updating this ILB post from September 14th, Steve Mills and Todd Lighty of the Chicago Tribune report today in a long story headed: "Timothy Evans withstands challenge to win sixth term as chief judge."

Posted by Marcia Oddi on Friday, September 16, 2016
Posted to Courts in general

Thursday, September 15, 2016

Ind. Gov't. - Marion County court denies TRO request in BMV refunds case

Updating earlier ILB posts from Sept. 12 and Sept. 13th, Judge John F. Hanley, Marion County Superior Court, Civil Division, Rm. 11, has just issued an order (access it here) denying the Plaintiff's "Application for a Temporary Restraining Order Restraining Defendants from Inequitably Dissipating Common Fund and for a Preliminary Injunction Following a Hearing."

Posted by Marcia Oddi on Thursday, September 15, 2016
Posted to Indiana Government

Ind. Gov't. - "Hoosier lawmakers eye changes to state employee pensions"

Dan Carden reports in the NWI Times in a story that begins:

INDIANAPOLIS — Republican lawmakers who believe state government should not be providing lifelong pensions to its retired employees are crafting a plan for new public workers to give up their pensions — possibly without even realizing it.

Legislation expected to be filed next year at the General Assembly automatically would register new state employees as members of a 401(k)-style defined contribution retirement plan, unless the new hires submit additional paperwork and elect to join the state pension fund.

The sponsor of the measure, state Rep. Wes Culver, R-Goshen, said other states, including Illinois, have demonstrated that public pension funds are unsustainable, and Indiana instead should model its employee retirement benefits on what’s available in the private sector.

“It reduces the risk that 10, 20, 30 years down the road that the state will be unable to meet its obligation,” Culver said.

More from the long story:
However, unlike states undergoing pension crises, the Indiana Public Retirement System is by any objective measure financially prepared and sufficiently funded to meet its pension obligations, said Tony Green, INPRS chief legal officer.

That’s why state Sen. Karen Tallian, D-Ogden Dunes, said it doesn’t make sense to blow up Indiana’s public pension system and reduce the money most state workers will get in retirement, just because of a philosophical disagreement over the role of government.

She said defaulting employees into a defined contribution plan instead of the pension fund is taking advantage of typically financially unaware individuals at a time when most are either just happy to have a job, or overwhelmed by their new hire paperwork.

Posted by Marcia Oddi on Thursday, September 15, 2016
Posted to Indiana Government

Ind. Decisions - Supreme Court decides one today, rules sentence here does not warrant appellate revision

In Kyle Bess v. State of Indiana, a 2-page, 5-0,, per curiam opinion, the Court concludes that although a "Court of Appeals majority found his fully executed sentence inappropriate under Indiana Appellate Rule 7(B)":

Our collective judgment is that the sentence imposed by the trial court in this case is not inappropriate under Appellate Rule 7(B) and does not warrant appellate revision. Accordingly, we grant transfer, see Ind. Appellate Rule 58(A), and affirm the sentence imposed by the trial court.

Posted by Marcia Oddi on Thursday, September 15, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (2):

In D.B. and V.G. v. Indiana Department of Child Services , a 19-page opinion, Judge Altice writes:

D.B. (Father) and V.G. (Mother) appeal following the involuntary termination of their parental rights. On appeal, they argue that the termination of their rights was improper because the termination petition was prematurely filed. Additionally, Father argues that the Department of Child Services (DCS) presented insufficient evidence to support the termination of his parental rights. We affirm.
In Mindy M. Cline v. State of Indiana, a 9-page, 2-1 opinion, Judge Bailey writes:
Mindy Cline (“Cline”) appeals the denial of her petition for expungement, presenting the sole issue of whether the trial court abused its discretion. We reverse and remand. * * *

Cline sought relief pursuant to Indiana Code Section 35-3-9-4, applicable to qualified felonies other than Class D or Level 6 felonies. Subsection (e) of that statute provides that the trial court may order conviction records expunged if the court finds by a preponderance of the evidence that: (1) the requisite period has elapsed (eight years from the date of conviction or three years from the completion of the sentence, or as shortened by prosecutorial agreement); (2) no charges are pending against the person; (3) applicable fines, costs, and restitution have been paid; and (4) the person has not been convicted of a crime within the previous eight years (or a shorter period with prosecutorial agreement) (emphasis added). * * *

[O]ur Legislature has provided a second chance for individuals who have in the distant past committed drug-related crimes. Although the trial court is granted discretion, this does not extend to disregard of remedial measures enacted by our lawmakers. As previously observed, such statutes should be liberally construed to advance the remedy for which they were enacted. Brown, 947 N.E.2d at 490. We conclude that the trial court abused its discretion in denying Cline’s petition for expungement. Reversed and remanded.

Riley, J., concurs.
Barnes, J., dissents with separate opinion. [That begins, at p. 9] I respectfully dissent. Although the commentary from the trial court here was not exactly artful and was unnecessarily harsh, I believe the court was within its discretionary parameters in rejecting Cline’s expungement request, with one possible correction. [ILB: re the number of convictions] * * *

As the majority recognizes, the expungement statute for felonies above Class D or Level 6 provides only that a trial court “may” expunge a conviction upon proof of the statutory requirements; it does not mandate expungement. See Ind. Code § 35-38-9-4(e). Thus, whether to grant Cline’s expungement petition was within the trial court’s discretion. See Key, 48 N.E.3d at 337. The statute is silent regarding the factors a trial court may consider in deciding how to exercise its discretion when ruling on a non-mandatory expungement petition. I see nothing wrong in the trial court here having considered the seriousness of the offenses and the time period since Cline finished her probationary term when ruling on her petition. Additionally, the trial court had face-to-face interaction with Cline that we cannot have. To the extent the majority emphasizes reasons why the expungement petition should have been granted, I believe it is reweighing the evidence and substituting its judgment for the trial court’s. Even if the expungement could have been granted on these facts, I do not believe the facts compelled granting it.

NFP civil decisions today (3):

James Wright v. Natasha G. Wright (mem. dec.)

In the Matter of: K.S., I.S., D.S., S.S., M.S., and G.S, (Minor Children) Children in Need of Services and T.S. (Mother) and J.S. (Father) v. Ind. Dept. of Child Services (mem. dec.)

In In re: The Grandparent Visitation of Jean Allen: Andrew Lemke and Satarah Lemke v. Jean Allen (mem. dec.), a 17-page opinion, Judge Bradford writes:

Appellant-Respondent Andrew Lemke (“Father”) appeals the trial court’s order granting Appellee-Petitioner Jean Allen’s (“Grandmother”) request for grandparent visitation of Father’s two minor children. On appeal, Father contends that the trial court erred in granting Grandmother’s request for grandparent visitation. Father also contends that the trial court abused its discretion in ordering that he pay certain attorney’s fees. Upon review, we conclude that the trial court did not err in granting Grandmother’s request for grandparent visitation or abuse its discretion in awarding Mother’s request for attorney’s fees. However, we are concerned that the amount of visitation ordered exceeds the amount of visitation contemplated by the Grandparent Visitation Act. As such, we affirm in part, reverse in part, and remand to the trial court with instructions. * * *

Again, the Indiana Supreme Court has held that the “‘Grandparent Visitation Act contemplates only occasional, temporary visitation that does not substantially infringe on a parent’s fundamental right to control the upbringing, education, and religious training of their children.’” In re Visitation of M.L.B., 983 N.E.2d at 586 (quoting K.I., 903 N.E.2d at 462). In this case, it seems that the amount of visitation ordered by the trial court includes more than merely occasional visitation. The trial court’s order recognizes that Father is a noncustodial parent who has been awarded parenting time with the Children. While the trial court’s order does not state the extent of Father’s awarded parenting time, it seems likely that the amount of visitation ordered would significantly infringe upon Father’s parenting time with the Children. As such, we conclude that the amount of awarded visitation should be reconsidered. Thus, on remand, we instruct the trial court to craft a visitation schedule which more closely reflects the occasional visitation contemplated under the Grandparent Visitation Act.

NFP criminal decisions today (3):

Nathaniel W. Dickey v. State of Indiana (mem. dec.)

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

Shaun L. Steele v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, September 15, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "New jail-release system focuses on risk when deciding if bond is needed"

The Columbus Republic has a long story today by Julie McClure - some quotes:

A new assessment process allows some criminal defendants to be released from the Bartholomew County Jail without posting bond.

A new pretrial process will use risk-assessment results to determine whether a defendant may be released without posting bond or whether that person needs to put up money, as they did before, before being allowed to leave the county jail.

Bartholomew is one of nine Indiana counties that may start using the new pretrial model under rules approved Sept. 7 by the Indiana Supreme Court. They go into effect in Bartholomew County this week and will be rolled out to all Indiana courts by 2018. * * *

Until now, bond amounts were based on a schedule, with defendants allowed to leave jail if they were willing and able to pay 10 percent of the bond amount in cash.

While a traffic offense such as operating while intoxicated has required a $5,000 bond, acts considered more serious such as possession of methamphetamine carry a $57,500 bond.

If the assessment shows defendants to be high-risk, they would still be required to pay a $500 cash bond when charged with operating while intoxicated or $5,750 in cash when charged with possession of methamphetamine to be released from jail. * * *

Bartholomew County’s past practice has been to set a cash bond, allowing a defendant to pay 10 percent of the bond before being released as a promise that they will appear for upcoming court hearings.But Meek and Maus pointed out that the system allowed suspects who were accused of committing low-level crimes, and who didn’t have resources to post bond, to be kept in jail, while others arrested for high-level crimes but with the means to post bail, were released.

The goal of the Local Evidence-Based Decision Making Team was to prevent a defendant’s social-economic status from dictating whether an individual remained in jail or was released.

The new system uses a screening tool to assess objectively whether a defendant should be eligible for release without bond, Meek said. It will be used from the lowest level of misdemeanors to a Level 1 felony charge.

The assessment evaluates whether the individual is likely to commit another crime while out of jail and whether he or she will come back to court for hearings as required, Meek said.

Research has shown that defendants who are at low risk should be released without conditions from jail, as a low-risk person can become medium- to high-risk by as little as 24 hours after being booked into a jail, the two said.

Medium-risk offenders could be released with specific conditions, which might include electronic monitoring or daily check-ins — while those assessed as high risk should be detained initially and have a bond set, research indicated.

There is much more in the long story.

For more ILB posts on this topic, start with this entry from September 9th.

Posted by Marcia Oddi on Thursday, September 15, 2016
Posted to Indiana Courts

Ind. Courts - More on "Indiana Ban on Syrian Refugees Draws Mockery From 7th Circuit"

Supplementing this ILB post from yesterday, Patricia Manson of the Chicago Daily Law Bulletin reports in a long story that begins:

Indiana Gov. Mike Pence’s bid to hamper efforts to relocate refugees fleeing from war-torn Syria to his state ran into strong resistance today.

In arguments before the 7th U.S. Circuit Court of Appeals, Indiana Solicitor General Thomas M. Fisher was bombarded with questions — as well as criticism and sarcastic comments — as he defended Pence’s attempt to block nonprofit resettlement agencies that assist Syrians from receiving funds under the federal Refugee Act.

Fisher appeared before the court to challenge a preliminary injunction that cleared the way for the agencies to get the funds.

Fisher rejected the notion that Pence’s action has anything to do with the Muslim faith of many Syrian refugees.

“Oh, yes it does,” Judge Richard A. Posner shot back.

He asked Fisher if Pence had singled out Syrians because of their nationality.

Fisher rejected that notion, contending Pence relied on reports from the FBI that people coming from Syria could include terrorists posing as refugees.

And unlike the situation in other countries, Fisher maintained, “we lack a footprint in Syria” that would allow the United States to gather intelligence on individual refugees.

“Honestly, you are so out of it,” Posner responded.

He reeled off a list of countries in the Middle East, Asia and Europe that have produced suspected terrorists.

Posner then asked how the FBI could know everything about terrorists from every nation other than Syria.

The men continued their sparring with Posner occasionally raising his voice and Fisher sometimes interrupting Posner.

The exchanges became so heated that Judge Frank H. Easterbrook told Fisher at one point that it was not a good strategy for a lawyer to talk over a judge.

Posted by Marcia Oddi on Thursday, September 15, 2016
Posted to Indiana Courts

Wednesday, September 14, 2016

Ind. Courts - Legal alien, who happens to be transgendered, cannot change his legal name because he is not a citizen

Earlier today the Indianapolis Star posted a story by Stephanie Wang, headed "Indiana won't let transgender man change name." Some quotes:

A transgender man is suing the state of Indiana for not allowing him to change his legal name — because he's not a U.S. citizen.

State law requiring proof of citizenship for a name change, he said in a lawsuit filed Tuesday, discriminates against him because of his non-citizen status, and it violates his freedom of speech and privacy to protect his gender identity. * * *

He is not a U.S. citizen but lives in the country legally. The man is a 31-year-old Indiana resident whose name is withheld in the lawsuit, which lists him as "John Doe." * * *

"It's really not a case about transgender rights," said Steve Sanders, an associate professor at Indiana University's Maurer School of Law. "It's a case about the rights of legal aliens where, in this case, the impact falls particularly hard and in a particularly dramatic way on a transgender person."

The lawsuit noted that the citizenship requirement in Indiana law, passed in 2010, "was first enacted as part of a measure targeting identity theft and with the specific purpose of making it 'more difficult for illegal immigrants to create new identities.'"

But because the man is a legal immigrant, Sanders said the state would be held to the highest level of scrutiny to prove why it needs to treat him differently from a U.S. citizen.

Some legal privileges apply only to U.S. citizens, but other portions of the law — including the constitutional right to equal protection and due process in the Fourteenth Amendment — treat citizens and non-citizens equally.

While it is a case based on alienage, Sanders said it highlights the indignities and legal difficulties that transgender people often face.

ILB: The ILB has obtained a copy of the 18-page complaint in the case, JOHN DOE, formerly known as JANE DOE v. MICHAEL PENCE, et al.

Posted by Marcia Oddi on Wednesday, September 14, 2016
Posted to Indiana Courts

Ind. Courts - "Indiana Ban on Syrian Refugees Draws Mockery From 7th Circuit"

Here is Jack Bouboushian of Courthouse News in a long, must-read report on this morning's oral argument in Exodus Refugee Immigration, Inc. v. Pence, et al. It begins:

CHICAGO (CN) — Sketching out certain defeat for Indiana's policy against Syrian refugee resettlement, the Seventh Circuit's most outspoken jurists rained a tag-team of rhetorical blows down on the state's attorney Wednesday morning.

Solicitor General Thomas Fisher provoked outrage from the federal appeals court in his attempt to justify Indiana's actions.

Setting the tone for the day, U.S. Circuit Judge Richard Posner jumped in immediately as Fisher cited a supposed statement of the FBI director that the U.S. government lacks intelligence on Syrians because there has not been a large-scale military intervention into the country.

"Aren't all these people screened by the State Department," Posner asked. "You don't trust the State Department? Will you do better?"

Fisher repeatedly returned to the FBI's statement only to be shouted down alternately by Posner and U.S. Circuit Judge Frank Easterbrook.

"What difference does it make what the FBI says," Easterbrook asked. "In an amicus brief, the United States says Indiana has exceeded its authority."

Easterbrook scoffed at Fisher's replies. "When a state targets a policy against people from Syria and says it has nothing to do with national origin, it produces nothing but a broad smile," the judge said.

Fisher tried to emphasize that the policy concerns resettlement only. "If we were actually preventing people from entering the state," he said, "that would be different."

Easterbrook was not convinced, however, saying states cannot selectively apply federal program funds. Either they opt in to the program or they do not, he said.

Fisher stumbled for a minute before settling on "no" when Easterbrook asked if there was any language in the Refugee Act that he was relying on.

This simple answer brought Posner back into the ring. "Are Syrians the only Muslims Indiana fears?"

Fisher halfheartedly replied: "This has nothing to do with religion."

Here is a list of other ILB posts on the appeal.

Posted by Marcia Oddi on Wednesday, September 14, 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 Meridian Health Services Corporation v. Thomas Martin Bell, a 27-page opinion, Judge Robb writes:

Meridian Health Services Corporation (“Meridian”) appeals the trial court’s order finding it in contempt of court for failure to comply with a subpoena duces tecum and appear at a deposition and awarding attorney’s fees as a sanction pursuant to Indiana Trial Rules 26(C) and 37(A)(4). Concluding the trial court did not abuse its discretion in holding Meridian in contempt and ordering it to pay attorney’s fees, we affirm. * * *

[A. HIPAA Privacy Rule] Regardless of whether the parent is otherwise considered a personal representative, HIPAA defers to state law with respect to the ability of the parent to obtain health information about the minor child: the health care provider may disclose to a parent the minor’s protected health information to the extent it is permitted or required by state law; conversely, the health care provider may not disclose the information when and to the extent state law prohibits such disclosure. 45 C.F.R. § 164.502(g)(3)(ii)(A), (B). * * *

[B. Indiana Law]

[C. Restrictions on Access]

Conclusion. Because HIPAA permitted and state law clearly required Meridian to release K.B.’s records to Father, the trial court did not abuse its discretion in ordering Meridian pay Father’s attorney’s fees. We therefore affirm.

In Jeffrey L. McMahel v. Mary A. Deaton, a 22-page opinion, Judge Brown writes:
Jeffrey L. McMahel appeals the trial court’s order awarding certain property to Mary A. Deaton following their cohabitation. McMahel raises one issue which we revise and restate as whether the court’s order is clearly erroneous. We affirm. * * *

While Deaton benefited from the resources provided to her by McMahel, McMahel also substantially benefited from the monetary and other contributions provided by Deaton during their cohabitation of over seventeen years. We conclude the evidence supports the trial court’s award of certain property to Deaton and its order that McMahel pay Deaton the amount of $13,102.30. See Turner, 792 N.E.2d at 950-951 (concluding that there was evidence to support the trial court’s finding that defendant had been unjustly enriched).

Conclusion. For the foregoing reasons, we affirm the December 11, 2015 order of the trial court.

In Bayview Loan Servicing, LLC v. Golden Foods, Inc., and Lewis R. Coulter, a 28-page opinion, Judge Pyle writes:
Bayview Loan Servicing LLC (“Bayview”) appeals the trial court’s order entering judgment in favor of Golden Foods, Inc., (“Golden Foods”) and Lewis Coulter (“Coulter”) on Bayview’s mortgage foreclosure claim and Golden Food’s conversion counterclaim. Bayview argues that there is insufficient evidence that it intended: (1) for Golden Food’s mortgage to merge with the tax deed that Bayview purchased from M. Jewell, LLC (“Jewell”); and (2) to exert unauthorized control over Golden Foods’ property and monthly payments. Concluding that Bayview’s arguments are requests to reweigh the evidence and that there is sufficient evidence that Bayview intended both the merger and the exercise of unauthorized control, we affirm the trial court. * * *

Our review of the evidence reveals that after Jewell acquired the tax deed to the property, Bayview structured a deal to acquire the property and change Bayview’s status from mortgage lienholder to fee simple owner. Specifically, Leuking drafted a settlement agreement, which Piedra authorized, that passed the tax deed directly to Bayview. Four days later, Gonzalez told Coulter that the Madison Street Property taxes had been paid but failed to mention that Bayview had taken title to the property. In the meantime, Coulter, who believed that Bayview had settled the situation with Jewell and that the LAA was in effect, began making the $1,218.55 monthly payment to Bayview. Although Bayview now held title to the property and had never signed the LAA, Bayview accepted Coulter’s payments for ten months until it filed a complaint to quiet title to the property. This evidence supports the trial court’s conclusion that Bayview converted the Madison Street Property as well as Coulter’s LAA payments. The trial court’s judgment is not clearly erroneous.

NFP civil decisions today (2):

G.S. v. T.K. (mem. dec.)

Angel Hill v. Bradley S. Bergman (mem. dec.)

NFP criminal decisions today (4):

Lamar Crawford v. State of Indiana (mem. dec.)

Denise Stone v. State of Indiana (mem. dec.)

Mitchell Maddox v. State of Indiana (mem. dec.)

Richard L. Boswell, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, September 14, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Syrian refugee case oral argument before 7th Circuit this morning

And you generally can't find out until the day of the hearing in the 7th Circuit, when the calendar comes out, who will be sitting on the panel. Interestingly, the random draw resulted in Judges: POSNER, EASTERBROOK, SYKES.

The oral argument audio hasn't been posted yet (the argument was at 9 am), but when it is, you may access it here. 16-1509.

Posted by Marcia Oddi on Wednesday, September 14, 2016
Posted to Ind. (7th Cir.) Decisions

Courts - "Chief judge Timothy Evans in battle to keep job"

Some nuggets from this very long story today in the Chicago Tribune, reported by Steve Mills and Todd Lighty, on the Cook County Illinois court system:

At stake is a position that holds great sway over one of the nation's largest judicial systems, exerting deep influence over cases ranging from traffic violations to murder trials. * * *

Ballots for the three-year term will be cast in secret Thursday. Cook County's 241 circuit court judges vote; 145 associate judges do not.

Races for chief judge tend to focus on management style dominating what are typically rather staid discussions of court procedures, much of it in "Dear Colleagues" letters rather than boisterous campaigning. Candidates sometimes go courtroom to courtroom seeking votes, and elected officials have been known to quietly lobby on behalf of a favored candidate. * * *

Who controls Cook County's massive court system is important; an ineffective system can harm those who pass through it and cost taxpayers greatly. Allen and Ramos have said in letters and to colleagues they can run the system better than Evans. * * *

Today, Evans heads a sprawling system that has 13 courthouses, with about 1.2 million criminal and civil cases pending at any given time. Besides the 386 circuit and associate judges, Evans supervises close to 2,700 employees, and also heads the county juvenile temporary detention center and probation department. The court's 2016 budget is nearly $236 million, according to Pat Milhizer, a spokesman for the chief judge.

Posted by Marcia Oddi on Wednesday, September 14, 2016
Posted to Courts in general

Ind. Gov't. - Editorial: "Rules could block Indiana's police video law"

A South Bend Tribune editorial today calls for the Supreme Court to step in. Some quotes:

Before its passage by the Indiana General Assembly earlier this year, we praised House Enrolled Act 1019 for restoring dash-cam and body-cam videos to the bright light of public scrutiny, “where they belong.”

But without a fix from the Indiana Supreme Court, such videos could be kept in the dark for an indefinite period. * * *

[T]he Indiana Prosecuting Attorneys Council has serious concerns that prosecutors could be in danger of being disciplined under the state Supreme Court’s Rules of Professional Conduct — specifically, Rules 3.6 and 3.8 — if police release video to the public before a criminal investigation is over or before a trial ends.

The rules prohibit influencing a potential jury pool and increasing public condemnation of a defendant.

As David Powell, executive director of IPAC, explained in a Friday op-ed in the Times of Northwest Indiana, “It is important to note that the Indiana Supreme Court has made it clear that prosecutors may not use the Access to Public Records Act as a tool to violate its Rules of Professional Conduct. Law enforcement recordings often include material that is prejudicial to a defendant. Releasing a prejudicial recording would violate the access laws and implicate the Rules of Professional Conduct.”

Steve Key, executive director and general counsel for the Hoosier State Press Association, says the remedy for this problem must come from the Indiana Supreme Court. “The legislature could change the law — but prosecutors would still be under (Rule) 3.8,” says Key, who doesn’t see the matter being resolved in the near future.

Some guidance from the court would help clarify whether the release of certain videos would violate its rules of conduct, but Powell notes, the court “doesn’t give advisory opinions; we’ve asked them to reconsider.”

Unless and until the court steps in, a law intended to support the public’s right to know falls short in that goal.

Posted by Marcia Oddi on Wednesday, September 14, 2016
Posted to Indiana Government

Ind. Courts - "Few takers for LaPorte addiction program"

Stan Maddux reports in the NWI Times in a story that begins:

LAPORTE — A 21-year-old man revived from a heroin overdose who ran out of LaPorte Hospital last week, an IV still in his arm, was just one of about a dozen near-death overdoses reported in LaPorte County in the last three weeks.

As EMS workers and emergency room personnel tend to the overdose patients, police are trying to spread the word about a program to help addicts without the fear of being questioned or arrested.

But, so far, just one person has stepped forward to ask for help since the program started three months ago.

LaPorte Police Chief Adam Klimczak is confident more will come once word of mouth and other forms of publicity take deeper root.

Posted by Marcia Oddi on Wednesday, September 14, 2016
Posted to Indiana Courts

Tuesday, September 13, 2016

Ind. Courts - "Supreme Court considers whether private university police records should be open to public"

This morning the Supreme Court heard oral argument in ESPN, Inc., et al. v. University of Notre Dame Police Department. You may watch the archived oral argument here (although I had to try several devices first ...) and I urge you to do so, to watch two of Indiana's premier appellate attorneys in action, Maggie Smith for the Appellant ESPN, and Peter Rusthoven for the Appellee Notre Dame.

Here is a long list of earlier ILB posts.

You may download all of the briefs in the appeal via the case docket before the Court of Appeals. And here is the Supreme Court docket.

Here is Dan Carden's coverage of today's argument, in the NWI Times. Some quotes:

Should police departments operated by private universities in Indiana be subject to the same open records requirements that apply to state, county and municipal police agencies?

The five justices of the Indiana Supreme Court wrestled with that question during 45 minutes of oral arguments Tuesday as the University of Notre Dame urged the high court to continue allowing it to keep secret all campus police records, especially those pertaining to student athletes.

Notre Dame attorney Peter Rusthoven argued the police provisions of Indiana's Access to Public Records Act do not apply to private universities, because the statute defines a relevant "law enforcement agency" as "any agency or a department of any level of government," and Notre Dame is not that. * * *

Attorney Maggie Smith, representing the sports television network ESPN, which was denied records by the Notre Dame police department, asked the justices to uphold a unanimous March 15 Court of Appeals decision declaring Notre Dame's police department is subject to open records requirements.

She said it is undisputed that under Indiana law private university police departments are equivalent in every way to public police agencies. As such, their records likewise must be open to ensure transparency and accountability.

"Anything that involves a public function should be open to the public," Smith said. "We are talking about the core power of the state — the opportunity to deprive an individual of a liberty interest."

That argument seemed to resonate with Chief Justice Loretta Rush, who noted that when a person arrested by the Notre Dame police department and is charged with a crime, the plaintiff is the state of Indiana.

Justices Steven David and Robert Rucker, a Gary native, also expressed concerns about equal treatment under the law if, for example, Notre Dame police worked alongside South Bend police at an off-campus drunk driving checkpoint as permitted by the Indiana Code.

Madeline Buckley's Indianapolis Star report opens with:
Officers with Notre Dame's police department could patrol the streets around campus and pull over a vehicle. The next vehicle that comes by could be pulled over by an officer with the South Bend Police Department.

In one case, there would be a public record for the stop. In another case, there wouldn't.

That was a scenario posed by Indiana Supreme Court Stephen David Tuesday morning during oral arguments in the public records lawsuit sports broadcaster ESPN is waging against the University of Notre Dame.

At issue in the case: Should Notre Dame, a private university, be able to operate a police department with the power to make arrests, interrogate suspects and investigate serious crimes without making those records public under state law?

"If the South Bend Police Department stopped the second and third car, we have two different sets of interpretations of what might be available to the public by virtue of who the arresting agency was," David posited to Peter Rusthoven, the attorney arguing on behalf of Notre Dame.

Rusthoven replied that David's interpretation is correct.

"The issue before the court is not whether this is smart policy," Rusthoven said, adding that the high court's job is to examine what state law does, and doesn't, say.

Margaret Fosmoe reports for the South Bend Tribune:
The University of Notre Dame wrongly denied ESPN's request for campus police records that should be subject to the same public scrutiny as those of other police departments, an attorney told the Indiana Supreme Court on Tuesday.

Just like other police agencies, Notre Dame Security Police carry guns, investigate crimes and arrest suspects, both on and off campus, attorney Maggie Smith said. The difference is "Notre Dame wants to keep all its records secret," said Smith, representing the Connecticut-based sports media company.

ESPN in 2014 sought campus police records from Notre Dame for cases involving student athletes. The university refused the request, citing its status as a private university, and the sports media company sued. * * *

Notre Dame police have the same training and perform the same functions as other Indiana police agencies, and thus are performing a state-sanctioned function of government, Smith argued.

Notre Dame is a private institution that doesn't function in any way as an agent of Indiana government, and thus the state's public records law should not apply to campus police records, said attorney Peter Rusthoven, representing the university.

He noted that three times previously, Indiana public access counselors had issued opinions stating that private university police records were not subject to Indiana's public records law. The fourth time, which involved the ESPN request for Notre Dame records, public access counselor Luke Britt issued an opinion in favor of ESPN, saying the records should be public and that NDSP powers come from the state.

"We have private universities that have been told three times over a decade that this doesn't apply, and they have organized their affairs accordingly," Rusthoven said. * * *

The South Bend Tribune and Hoosier State Press Association filed a brief in the case supporting ESPN and arguing that Notre Dame police reports and logs are public records. Attorney General Greg Zoeller also backed ESPN, arguing that Notre Dame's police department reports are public records.

Posted by Marcia Oddi on Tuesday, September 13, 2016
Posted to Indiana Courts

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

In William Hinesley, III v. Wendy Knight (SD Ind., Magnus-Stinson), a 28-page prisoner appeal, Judge Rovner writes:

Following a bench trial in Indiana state court, William Hinesley, III, was convicted of molesting his 13 year‐old former foster daughter, V.V. After exhausting his state court remedies, Hinesley petitioned for a writ of habeas corpus, contending that his trial counsel deprived him of effective representation when he allowed the inculpatory out‐of‐court statements of the two principal witnesses against him into evidence without objection and likewise posed no objection to the admission of two statements in which wit‐ nesses vouched for V.V.’s credibility. Hinesley also raised an argument of cumulative ineffectiveness based on these and other purported errors on the part of his lawyer. The district court denied his petition. Hinesley v. Knight, No. 1:14‐cv‐1097‐ JMS‐TAB, 2015 WL 1969643 (S.D. Ind. Apr. 29, 2015). We affirm.

Posted by Marcia Oddi on Tuesday, September 13, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Even more on: "Indiana BMV vs Cohen & Malad?"

Updating this ILB post from yesterday, September 12, where the ILB posted documents filed last week by the firm of Cohen & Malad in Marion Superior Court in the case of Tammy Rabb v. BMV (49Dl1-131O-PL-038001), the ILB has now received and is posting:

Posted by Marcia Oddi on Tuesday, September 13, 2016
Posted to Indiana Government

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

For publication opinions today (2):

In Marvin Hamilton and Linda Hamilton v. Schaefer Lake Lot Owners Association, Inc., a 10-page opinion, Judge Baker writes:

Marvin and Linda Hamilton (collectively, the Hamiltons) appeal the trial court’s judgment entered against them and in favor of Schaefer Lake Lot Owners Association , Inc. (the Association). As consolidated and restated, the Hamiltons contend that they are not members of the Association and do not owe money for annual and special assessments, and that the statute of limitations bars claims for assessments made prior to 2008. Finding that the Hamiltons are members of the Association and therefore owe money for the assessments, and that the statute of limitations does not bar any of the Association’s claims, we affirm. * * *

The Hamiltons argue that they are not members of the Association because the Covenants did not require membership in a lot owners’ association and did not require payment of dues and assessments. They also argue that they are not members of the Association because they never signed or agreed to the 1996 amendments or voluntarily joined the Association. * * *

The record here establishes that the Hamiltons purchased their lot subject to the Covenants. The Covenants expressly provided that the covenants are to run with the land and are binding on all parties subject to them. The Covenants also expressly provided that the Covenants could be amended through an instrument signed by a majority of the then lot owners and recorded. In 1996, a majority of lot owners did vote to amend the Covenants; the amendment provided that all lot owners are members of the Association and subject to the Association’s rules and regulations. In 2002, the Association adopted rules that allow it to establish annual and special assessments against each lot.

We disagree with the Hamiltons’ assertions that the amendment was outside the scope of the Covenants’ intended purpose and that the amendment was an attempt “to force an owner to join a lot owner’s association.” Appellant’s Br. p. 7. The Covenants provided that they could be changed after twenty-five years had run, and the 1996 amendments were passed after this allotted time.

In Bellwether Properties, LLC v. Duke Energy Indiana, LLC, a 28-page, 2-1 opinion, Judge Brown writes:
Bellwether Properties, LLC (“Bellwether”) appeals the trial court’s order granting a motion to dismiss in favor of Duke Energy Indiana, Inc. (“Duke”). Bellwether raises one issue, which we revise and restate as whether the trial court erred in dismissing Bellwether’s complaint for inverse condemnation as time-barred. We reverse and remand. * * *

Bellwether asserts that, under these circumstances, the trial court should have applied the discovery rule, noting that no Indiana court has expressly analyzed whether the discovery rule applies to inverse condemnation actions. The crux of Bellwether’s argument is that the court “erred in conflating two distinct legal concepts: knowledge of the law and the accrual of a cause of action,” asserting that although it is charged with knowledge of the law, its claim had not accrued because it did not have knowledge of certain technical facts giving rise to the claim. Appellant’s Brief at 17. Specifically, Bellwether argues: “The real question is at what point did [it] learn that a certain state of facts existed giving rise to a cause of action, i.e., Duke’s electric supply lines carried enough voltage to require a larger horizontal clearance than was permitted by the easement?” Id. at 14. Bellwether maintains that this question should survive Duke’s motion to dismiss. It asserts that “neither the existence of the strike clearance, nor the type and voltage of the utility lines were visible to the naked eye; yet knowledge of both was necessary to realize a cause of action existed.” [ILB: much discussion of complex arguments follows] * * *

We find that the discovery rule’s purpose “to limit the injustice that would arise by requiring a plaintiff to bring his or her claim within the limitation period during which, even with due diligence, he or she could not be aware a cause of action exists” is served by its application to these circumstances. Rieth-Riley Const. Co., Inc. v. Gibson, 923 N.E.2d 472, 476 (Ind. Ct. App. 2010). We conclude that the court erred when it ruled that the six-year statute of limitations on Bellwether’s Complaint had expired, and we reverse the court’s ruling and remand for further proceedings.

For the foregoing reasons, we reverse the trial court’s Order and remand for proceedings consistent with this opinion. Reversed and remanded.

Baker, J., concurs.
May, J., dissents with separate opinion. [that begins, at p. 22] The majority determines “neither 170 I.A.C. 4-1-26, nor the 2002 NESC, placed Bellwether on notice that Duke’s control over land surrounding the Easement widened from ten to approximately twenty-three feet due to horizontal strike clearance requirements.” (Slip op. at 17.) I believe we are required to hold Bellwether did have notice, and I must therefore respectfully dissent. * * *

If the “ordinary Hoosier” described in Tiplick can be charged with knowledge and understanding of the complex statutory scheme governing synthetic drugs and synthetic substances, then certainly Bellwether must be charged with knowledge that there were horizontal strike clearance requirements, what the requirements were, and that they applied to the Bellwether easement. I therefore do not believe our recent Indiana Supreme Court precedent permits the majority’s conclusion Bellwether could not have ascertained what the applicable rules were and how they would have affected the scope of the easement. I must therefore respectfully dissent.

NFP civil decisions today (1):

In the Matter of the Guardianship of L.B.: Sarah Craft v. Hollie Worthington (mem. dec.)

NFP criminal decisions today (6):

Desarai Xashia Kemp v. State of Indiana (mem. dec.)

Basden Breakfield v. State of Indiana (mem. dec.)

Chad J. Ley v. State of Indiana (mem. dec.)

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

Jeremy M. Hines v. State of Indiana (mem. dec.)

Basden Breakfield v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, September 13, 2016
Posted to Ind. Adm. Bd. Decisions

Courts - "Debtors' Prison for Kids: The High Cost of Fines and Fees in the Juvenile Justice System"

"Court Fines Out of Reach for Indiana’s Young People" is the headline to this Indiana News Service story by Veronica Carter, here published at Eagle County 99.3 FM. The story begins:

(Indianapolis, Ind.) – When a young person is unable to pay court-related costs, he or she can face what’s known as “debtors’ prison,” a practice a new report says can pull them deeper into the juvenile-justice system.

In Indiana, these fees and fines can include the cost of food, clothing, shelter, supervision and court operations. According to the Juvenile Law Center findings, when a family can’t pay up, a young person can be placed in a secure facility or have their probation extended.

Associate director at the center Jessica Feierman called it a punishment for being poor.

“We’re creating two separate systems of justice,” she said. “This is really a glaring example of justice by income. We really can do better. We can set a system that’s fair to all young people, not just the ones who have access to money.”

The report recommends that states eliminate costs, fines and fees by establishing more sustainable and effective models for funding court systems.

The report, "Debtors' Prison for Kids", is available here, at the end of the page.

Posted by Marcia Oddi on Tuesday, September 13, 2016
Posted to Courts in general

Ind. Gov't. - "High Cost of New Hepatitis C Drugs Strains Prison Budgets, Locks Many Out of Cure"

This $$ story by Peter Loftus and Gary Fields is on the front page of today's Wall Street Journal. A few quotes:

GRATERFORD, Pa.—David Maldonado, an inmate at a Pennsylvania state prison, is one of thousands of convicted criminals with hepatitis C, an infectious disease that is one of the country’s biggest killers. Powerful new drugs on the market could help Mr. Maldonado and cut the chances of it spreading outside prison walls.

The medicines, however, are so expensive, and the problem so widespread, that to treat all sufferers would blow up most prison budgets. List prices for the newer drugs range from $54,000 to $94,000 a person for a typical 12-week course. * * *

In a March court filing, the department said treating the state’s estimated 7,000 infected inmates would cost about $600 million, which “would effectively cripple the Department from a budgetary standpoint” and squeeze other medical care and security needs. * * *

The rationing, which has been implemented at both the state and federal level, is an acute example of the dilemmas caused by both high and fast-rising drug prices. Lawmakers and consumers have increasingly pressured drugmakers such as Valeant Pharmaceuticals International Inc. and Mylan NV over the prices they charge, and both presidential contenders have proposed ways to cut them.

Later in the long story:
The Wall Street Journal surveyed all 50 state departments of corrections to determine how many affected inmates are receiving newer hepatitis C drugs. The 34 states that had data reported a total of roughly 101,000 inmates with the condition. Of those, about 3.4% have been treated for hepatitis C with the new drugs. A few states provided estimates of prevalence and treatment rates only. The remaining states didn’t have the data, or declined to comment. Some didn’t respond to phone calls or emails.

The majority of responding states cited cost as a reason for limiting treatment. Few prisoners have private insurance, and federal law generally prohibits Medicaid from funding most types of inmate care that doesn’t require hospitalization.

An accompanying list, showing the "per-patient price paid by state corrections departments for a 12-week course of Gilead Sciences Inc.'s hepatitis drug Harvoni" shows Georgia at the top of the 22-state list at $91,014/12-week course of treatment. Indiana is third highest at $80,000. North Dakota is at the bootm, at $46,021.

There is much more information in the lengthy article.

Posted by Marcia Oddi on Tuesday, September 13, 2016
Posted to Indiana Government

Law - "DNA Dragnet: In Some Cities, Police Go From Stop-and-Frisk to Stop-and-Spit"

A lengthy story by Lauren Kirchner of Pro Publica, the subhead reads: "Police in Florida and other states are building up private DNA databases, in part by collecting voluntary samples from people not charged with — or even suspected of — any particular crime." It begins:

The five teenage boys were sitting in a parked car in a gated community in Melbourne, Florida, when a police officer pulled up behind them.

Officer Justin Valutsky closed one of the rear doors, which had been ajar, and told them to stay in the car. He peered into the drivers’ side window of the white Hyundai SUV and asked what the teens were doing there. It was a Saturday night in March 2015 and they told Valutsky they were visiting a friend for a sleepover.

Valutsky told them there had been a string of car break-ins recently in the area. Then, after questioning them some more, he made an unexpected demand: He asked which one of them wanted to give him a DNA sample.

After a long pause, Adam, a slight 15-year-old with curly hair and braces, said, “Okay, I guess I’ll do it.” Valutsky showed Adam how to rub a long cotton swab around the inside of his cheek, then gave him a consent form to sign and took his thumbprint. He sealed Adam’s swab in an envelope. Then he let the boys go.

Telling the story later, Adam would say of the officer’s request, “I thought it meant we had to.”

Over the last decade, collecting DNA from people who are not charged with — or even suspected of — any particular crime has become an increasingly routine practice for police in smaller cities not only in Florida, but in Connecticut, Pennsylvania and North Carolina as well. * * *

“In Florida law, basically, if we can ask consent, and if they give it, we can obtain it,” said Cmdr. Heath Sanders, the head of investigations at the Melbourne Police Department. “We’re not going to be walking down the street and asking a five-year-old to stick out his tongue. That’s just not reasonable. But’s let’s say a kid’s 15, 16 years old, we can ask for consent without the parents.”

Posted by Marcia Oddi on Tuesday, September 13, 2016
Posted to General Law Related

Ind. Courts - Syrian refugee case oral argument before 7th Circuit on Wed., 9/14

From the ACLU of Indiana:

Exodus Refugee Immigration, Inc. v. Pence, et al. Appellate Cause No. 16-1509 is being heard by a three-judge panel in the Seventh Circuit Court of Appeals in Chicago on Wednesday, September 14 at 9:00 a.m.
Check here for more information, including links to all the documents.

Brandon Smith has a brief story, "Appeals Court To Hear IN Arguments For Blocking Syrian Refugees," at Indiana Public Media.

Posted by Marcia Oddi on Tuesday, September 13, 2016
Posted to Indiana Courts | Indiana Government

Ind. Decisions - "In Indiana, an Absolute Pollution Exclusion May Exclude Absolutely Nothing"

This article in Property Casualty Focus, a Florida law firm blog, is written by Heidi Hudson Raschke. A quote from the long article:

It is well-established that insurance policies are interpreted based on their plain language, and where a term is not defined, that term will be given its plain and ordinary meaning. This rule is not, however, followed by Indiana courts were pollution exclusions are concerned. In Old Republic Insurance Company v. Gary/Chicago International Airport Authority, case no. 2:15-CV-281-JD (N.D. Indiana July 25, 2016), the District Court followed Indiana precedent and denied the insurer’s motion for summary judgment seeking a ruling that it was not responsible for the defense and indemnity of the insured in an action by the Indiana Department of Environmental Management (“IDEM”) in connection with pollution notwithstanding the policies’ exclusions for “claims directly or indirectly occasioned by, happening through or in consequence of pollution and contamination of any kind whatsoever.”
The ILB had a brief post on the decision on July 27, 2016.

Posted by Marcia Oddi on Tuesday, September 13, 2016
Posted to Environment | Indiana Decisions

Courts - 1st Circuit, in Boston, "to decide whether states can ban selfies in voting booths"

That is the headline to a UPI report (via KTTN, Mo.) that begins:

BOSTON (UPI) — A federal appeals court will consider whether the government can bar people from taking pictures of their ballots in voting booths.

The First Circuit Court of Appeals in Boston will hear arguments Tuesday whether it is a violation of free expression or a way to prevent fraud.

New Hampshire became the first state to prohibit ballot selfies in 2014. The law makes it a crime, punishable by a fine of up to $1,000, for voters to take pictures of their ballots and post them on social media. The law was blocked a year ago by a federal judge, and the state appealed. This law was amended from one in 1979 that makes it illegal for a voter to show a ballot to someone else with the intention of disclosing how the person plans to vote.

Twenty-six states ban taking photos of ballots through various laws, including prohibitions on bringing cameras into polling places, according to NBC News.

Ten states appear to allow ballot selfies or have no enforceable state law clearly forbidding it: Arizona, Delaware, Indiana, Maine, New Hampshire, North Dakota, Oregon, Tennessee, Utah, and Wyoming. And the law is unclear in 14 other states: Arkansas, Connecticut, Hawaii, Idaho, Illinois, Kansas, Kentucky, Maryland, Minnesota, New Jersey, Ohio, Rhode Island, Vermont, and Washington.

The story concludes:
One year ago, enforcement of a similar ban in Indiana was blocked by a federal court. Federal District Court Judge Sarah Evans Barker called the law “a blunt instrument designed to remedy a so-far undetected problem” in reference to vote buying.
The ILB had a number of posts about the Indiana lawsuit, brought by the ACLU of Indiana in the fall of 2015. Here is the post linking to Judge Barker's ruling.

Posted by Marcia Oddi on Tuesday, September 13, 2016
Posted to Courts in general | Ind Fed D.Ct. Decisions

Monday, September 12, 2016

Ind. Decisions - Transfer list for week ending September 9, 2016

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

Posted by Marcia Oddi on Monday, September 12, 2016
Posted to Indiana Transfer Lists

Ind. Gov't. - Still more on: Indiana BMV vs Cohen & Malad?

Updating this ILB post from this morning, which quoted a Fort Wayne Journal Gazette story, the ILB has now obtained copies of two documents filed last week in Marion Superior Court in the case of Tammy Rabb v. BMV (49Dl1-131O-PL-038001):

Posted by Marcia Oddi on Monday, September 12, 2016
Posted to Indiana Government

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

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (1):

Marc Lindsey v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, September 12, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "South Bend area governments to keep up fight against big box stores"; A nationwide issue

Jeff Parrott reports in the South Bend Tribune on the Sept. 7th Indiana Tax Court decision in Howard County Assessor v. Kohl's Indiana LP (ILB summary here)- the story begins:

St. Joseph County’s attorney is advising the county to keep defending its property tax assessments of big box retail stores, despite an Indiana Tax Court ruling last week in favor of such stores in a similar case.

The court Wednesday affirmed a decision by the Indiana Tax Review Board holding that a Kokomo Kohl’s store could include property values of nearby vacant store buildings, called “dark sales,” when figuring the assessed value that determines their property tax. Howard County had argued that only occupied store values should be factored into the calculations.

Elected leaders in South Bend, Mishawaka and St. Joseph County side with Howard County, arguing that big box stores that don’t pay their fair share of property taxes ultimately force individuals and businesses to pay more. In April the three governments decided to share costs in hiring appraisers and attorneys to fight several chain stores filing similar assessment appeals.

In the wake of the ruling, St. Joseph County attorney Jamie Woods sent county officials an email stating that they can make a different legal argument than the one Howard County presented to the Tax Court, said county auditor Mike Hamann.

“The idea is to present a more thorough defense of our argument,” Hamann said. “That’s good news. Initially I was a little concerned.”

Frank Agostino, the attorney representing county assessor Rosemary Mandrici, agreed that the ruling won't affect local cases.

"The assessor in that case was mostly attacking the method that was being used by the appraiser for those big box stores," Agostino said. "In St. Joe County, we've hired an expert appraiser and that expert appraiser will deliver an opinion of value."

Meijer, Kohl's, Lowe's, Target and CVS stores have appealed their assessments in St. Joseph County.

ILB: This issue is not unique to Indiana. Liz Farmer of Governing had this story in the September 2016 issue, headed "Big-Box Stores Battle Local Governments Over Property Taxes." Some quotes from the story, that is subheaded "The [big box] retailers are deploying a ‘dark store’ strategy that’s hurting cities and counties around the country" [ILB emphasis]:
On Michigan’s sparsely populated Upper Peninsula, big-box stores are a modern necessity. * * * Landing one large retailer is a coup. Having more than one can make a city or town a regional shopping destination. Marquette Township, a small community adjacent to the larger city of Marquette, is in the unique position of having a handful of big-box chain stores. * * *

But recently, the township suffered a dramatic drop in its property tax revenue. It had to cut back on spending, trim employee benefits and reduce library hours. The impact has reached up to surrounding Marquette County, which earlier this year closed a youth home to save money. The reason for the lost revenue isn’t declining consumer demand. It’s a series of rulings by the Michigan Tax Tribunal that have allowed large retailers to reduce their property tax assessments, in many cases by as much as half.

Big-box retailers argue that the market value of their commercial property should be the sale price of similarly sized but vacant retail buildings. They point out that these buildings are extremely hard to sell as-is once the retailer moves out. They tend to sit empty for long periods. Thus, the assertion is, they aren’t worth nearly as much as local tax assessors have traditionally assumed in valuing the property. * * *

Michigan is far from alone in seeing localities take dark-store hits to their property tax base. Counties in Alabama, Florida and Indiana are seeing widespread challenges that make use of the dark-store method. The National Association of Counties says it’s an emerging issue in Iowa, North Carolina, Ohio, Tennessee, Washington and Wisconsin.

Still, while these cases have been proceeding for the better part of a decade, it’s only been recently that county organizations and public officials have realized the geographical magnitude of the challenge. County assessors forced to respond to it aren’t always aware of similar controversies outside their jurisdiction. This is particularly true in places that are geographically isolated and where assessors are part-time employees. * * *

Even in places where counties have pieced together a coordinated effort to fend off challenges, response on the state level has varied. The Indiana General Assembly took arguably the strong-est action, passing two laws last year that essentially banned the dark-store tactic. But those laws were repealed and replaced with a weaker law this year. Alabama passed a law that amounted to an administrative change giving counties more legal resources. The Michigan Legislature has considered but not approved bills dealing with how the Tax Tribunal hears assessment challenges. In these places and elsewhere, many are concerned that the longer it takes for a concerted state response, the more money counties and local governments will lose.

The lengthy article then goes into a worth-reading discussion that begins:
There are different nuances and different case law in every state, but it can be generally said that appraisers look at three factors in determining the taxable value of property: the sale price of comparable properties, the current cost to build minus depreciation and the income generated by rents charged to tenants. Appraisers can apply a blend of these approaches to arrive at a property’s value, or place most of the weight on just a single approach.
Later in the story:
The big-box retailer Meijer brought a case at one of its most successful Indiana locations, in Marion County, after winning reduced assessments in Michigan. The attorney for Meijer went so far as to tell the Indianapolis Business Journal that the appeal in Marion County was a test case because “whatever the value is there would be the upper limit of the value across the state.” The retailer won in late 2014 and got its assessment slashed from $83 per square foot to $30 per square foot. The decision applied retroactively, requiring Marion County to refund Meijer $2.4 million for nine years of back taxes. Indiana county officials estimated that if the decision were to be extended to the more than 17,000 commercial properties across the state, it would mean a loss of $120 million in property tax revenue statewide.

Indiana lawmakers responded quickly. In 2015, the legislature passed two bills: One effectively banned using the dark-store method to value existing businesses, and the other required using the cost method for properties over a certain square footage. But those laws were repealed this year under concerns they violated the uniformity clause in the state’s constitution, which requires all property to be assessed on an equal basis. The Indiana General Assembly then passed a new law that requires assessments to be based on the value of properties that are “similarly situated in the marketplace.”

Other states have tried other tactics. Alabama passed a law this year that allows counties to remove these cases from their district attorney’s jurisdiction and hire outside attorneys to fight them. In Michigan, a bill passed the House that would require the Tax Tribunal to consider all three valuation methods (rather than just the one the retailer is arguing for). It will be considered in the Senate later this fall.

In short, the legislative authority of lawmakers to intervene is murky. “It’s always appropriate for the legislature to try to clarify and remedy a situation when appropriate,” says Joan Youngman, a property tax expert with the Lincoln Institute of Land Policy. “But you want to be sure this is a problem with the existing law.”

In the end, the best way to beat back the challenges is to win in court. * * *

In Michigan, a recent Court of Appeals ruling may prove to be a turning point. In May, the court overturned a 2015 decision by the Michigan Tax Tribunal that had favored the retailer Menard against the city of Escanaba in a property tax dispute. The court found that Escanaba’s cost-based approach was more reasonable than the retailer’s comparable sales method, which included using dark stores. The case was remanded back to the tribunal with directions to consider all the assessment methods. It may end up setting a precedent for cases in Michigan that are currently open.

Still, for counties and townships that have already lost or settled cases, the damage has been done.

Here is a new story from The Dallas Morning News, headed "Will big box retail's 'dark store' strategy lead to fewer taxes in Texas?."

In addition, the ILB has a long list of earlier stories on the appraisal/assessment of big box stores.

Posted by Marcia Oddi on Monday, September 12, 2016
Posted to Indiana Government

Ind. Courts - "Indianapolis fertility doctor facing charges"

Vic Ryckaert has the story this morning on the Indianapolis Star website. A few quotes:

A fertility doctor accused of using his own sperm to inseminate patients is facing felony charges, records show.

Donald L. Cline, 77, was charged Friday in Marion Superior Court with two felony counts of obstruction of justice, according to online court records.

Cline surrendered to the court during an initial hearing this morning. Magistrate Stanley Kroh ordered him released on his own recognizance and scheduled a hearing for Oct. 17.

Fox59 reported that six adults who had been conceived through Cline's clinic in the 1970s and 1980s discovered through online DNA tests that they were siblings born to the same biological father.

The story begins with this May 12, 2015 Fox 59 story by Angela Ganote - here are some snippets from the long 2015 story:
Carrie is a donor child. Struggling to conceive in the early 80s, her parents visited an Indiana doctor who inseminated Carrie’s mom. She was told the doctor would use fresh sperm from a doctor in training and the same man’s sperm would not be used for more than three successful pregnancies.

You can imagine her concern when she took a DNA test through 23andMe and found she was related to at least eight other people on the site. FOX59 tested those results through Strand Diagnostics, which confirmed that the evidence supports the siblings are related. * * * [ILB emphasis]

The siblings tell me their biggest concerns are not knowing their father’s medical history, not knowing for sure how many siblings they have and not knowing who they are related to.

"I don't think it is fair to have to have my children if they start dating someone to have to have a DNA test just to make sure they aren't cousins!”

Here is the Fox 59 story from Friday, again by reporter Ganote. Some quotes from the worth reading in full story:
On Friday, the now-retired doctor Donald Cline was charged with two felony counts of obstruction of justice for statements he made to investigators.

Court documents filed on Friday describe a meeting that took place in the spring of 2016 between Dr. Cline and six siblings. Cline described to the siblings that he used his own sperm whenever a donor sample wasn’t available. And admitted to wrongdoing by inseminating women with his own sperm.

In a conversation with Angela Ganote this summer, Cline said he didn’t believe he was fathering children, rather helping families who were devastated by being unable to conceive on their own.

Cline explained to the siblings at this spring meeting that he kept medical records of all of his patients and noted which ones received his sperm. However, since all of the cases took place in the late 1970s through the early 80s, Cline says all of those patient records have been destroyed. Indiana law requires medical records to be kept for seven years.

Posted by Marcia Oddi on Monday, September 12, 2016
Posted to Indiana Courts

Ind. Gov't. - "Complete list of which Indiana communities have LGBT protection laws"

The Indianapolis Star published these useful lists on September 8th.

Posted by Marcia Oddi on Monday, September 12, 2016
Posted to Indiana Government

Ind. Decisions - "Local public defender’s law license suspended 60 days"

On August 26th the ILB reported on an attorney disciplinary case, In the Matter of: James A. Shoaf,. A story this weekend by Julie McClure of The Columbus Republic expands on the ruling. Some quotes:

A public defender serving in Bartholomew Superior Court 1 has been disciplined by the Indiana Supreme Court for failing to follow through on three sentencing appeals for criminal defendants.

In a decision signed by Chief Justice Loretta H. Rush, Columbus attorney James A. Shoaf has been ordered to serve a 60-day suspension from practicing law beginning Oct. 6. * * *

Shoaf is one of three public defenders working in Superior Court 2. Records show the case load he was assigned was as large as 384 defendants in 2011, Superior Court Judge Kitty Coriden said. The judge said that the number of cases involving those defendants may be much higher, perhaps as high as 500, as some individuals had multiple cases assigned to Shoaf.

Coriden described Shoaf as being exceptionally responsible in making sure that there will be no break in how his cases are covered while he is on suspension.

The judge said Shoaf has done an exceptionally good job as public defender and his job as a public defender is waiting for him the minute his suspension is over.

Shoaf was to receive a flat fee payment of $2,000 for appeals from sentencing orders, according to the Supreme Court order. * * *

Shoaf did not respond to a request for an interview from The Republic.

Posted by Marcia Oddi on Monday, September 12, 2016
Posted to Ind. Sup.Ct. Decisions

Environment - "Insurance fight prolongs scrap yard's endless pollution"

Seth Slabaugh of the Muncie Star-Press has a long and interesting story today - here are just a few quotes:

HARTFORD CITY — A junk yard and one of the nation's largest insurance companies continue to blame each other for never-ending water pollution.

During five years of court battles with Hartford Iron & Metal, Valley Forge Insurance has spent millions of dollars in a seemingly inept attempt to stop PCB-contaminated storm water from illegally draining off of the salvage yard and into city streets, sewers and waterways.

A citizen group is conducting soil sampling to find out whether the contamination has spread onto neighboring residential properties.

It all started 10 years ago, when the Indiana Department of Environmental Management (IDEM) discovered mismanagement of auto fluids and other waste at Hartford Iron's five-acre site at 209 S. Division St.

In 2009, the scrap yard agreed to remove widespread, dangerous levels of PCBs and lead found in the soil, and to control the runoff of storm water to protect the residential neighborhood. Because of the legal dispute, that still hasn't happened. * * *

"Hartford Iron's scrap yard developed a series of environmental problems, including rain water picking up chemicals from the scrap yard soil and flowing off the property as contaminated storm water," he wrote.

IDEM and EPA brought enforcement actions to make Hartford Iron pay penalties and remediate the site, and Hartford Iron sought liability coverage from its insurer, Valley Forge.

Legal disputes arose, but eventually the insurance company agreed to pay for the cleanup of the site and to defend Hartford Iron against IDEM and EPA.

"The remediation has been fraught with problems and has spawned a variety of conflicts; the environmental regulators continue to impose fines and penalties for ongoing non-compliance, and Hartford Iron and Valley Forge blame each other for the continued problems," Miller wrote. "In general, Valley Forge believes that Hartford Iron's refusal to cooperate with the environmental contractors has prevented effective remediation; Hartford Iron believes the remediation plan thus far has been inept and accuses Valley Forge of trying to pin the blame for the runaway costs solely on Hartford Iron." * * *

"Canvassing the neighborhood around Hartford Iron to get permission from residents to test their soil, it was amazing how many people over the past 30 years have suffered some type of cancer or neurological problems," Eric Evans, president of Blackford County Concerned Citizens, told The Star Press. "We have obtained a grant to do some individual, independent testing to determine whether the contamination has spread beyond the confines of that facility in the middle of a residential area."

The citizen groups is convening a community meeting on Oct. 22 to which it plans to invite Shere as well as government officials, health experts, economic development leaders, brownfield experts and others to see if "maybe we can find some solution," Evans said.

"IDEM pretty much took the position that they couldn't do anything until the federal lawsuit is resolved and they need to just wait until that's done," Evans added. "We viewed that as kind of a lame excuse. We felt IDEM maybe just dropped the ball. In defense of IDEM, like a lot of government agencies, they are under-funded and understaffed. We've decided to try to take this from a negative to a positive, so we are putting together this community discussion."

ILB: Here is the 8/19/16 opinion by federal Judge Robert L. Miller in Valley Forge Insurance Company v. Hartford Iron & Metal Inc et al that is quoted in the story.

Posted by Marcia Oddi on Monday, September 12, 2016
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Gov't. - More on: Indiana BMV vs Cohen & Malad?

Updating this ILB post from Friday, Niki Kelly of the Fort Wayne Journal Gazette reported this weekend, headed "Refunds by BMV are now available: Each side still in fight over fees, payouts" [ILB emphasis]:

INDIANAPOLIS – About 5 million Hoosiers were overcharged by the Indiana Bureau of Motor Vehicles, and an additional $28.75 million in refunds or credits are now available.

But attorneys for the BMV and the class-action lawsuit are still wrangling over legal fees and throwing harsh criticism each other’s way.

“Customers who were overcharged will find credits on their accounts that can be applied to their next transaction, or they can request a check from the BMV,” Commissioner Kent Abernathy said in a news release. “We are currently determining the most efficient ways to contact customers about their refunds, including email notification, postcards, and online notification through BMV’s website.”

BMV officials chastised Irwin Levin, a lawyer for a class-action lawsuit against the BMV on overcharges, for filing paperwork Friday to hold a third of the refunds in escrow.

“It is stunning and inappropriate for Mr. Levin, or any lawyer, while claiming to represent Hoosiers’ best interests, to directly seek to take money out of Hoosiers’ pockets,” said BMV General Counsel Adam Krupp.

Irwin was lead counsel in a case against the BMV for overcharging millions of Indiana citizens for certain driver’s licenses which settled for $30 million. He is class counsel in a subsequent case against the BMV involving overcharges not covered by the initial case.

He said he is simply following the law regarding class-action suits, which requires lawyer fees and expenses be taken out of the same pot of money going to the members of the class. He estimates about $1 million in costs.

The trial in the case isn’t until Sept. 28, and Levin said the BMV is issuing refunds and credits early as gamesmanship.

“As every Hoosier knows by now, with the BMV truth is a random event, and this press release is no different,” Levin said. “They went around the court’s authority and tried to create a payment system that is not transparent. We have not asked BMV to stop paying people. We’ve asked them to follow the law.
“Everyone knows not a penny would have been paid by the BMV without us fighting them in lawsuits.”

It’s the latest chapter in overcharges that have been going on for years and were brought to light by legal action. * * *

Irwin explained that papers filed Friday were to separate a third of the money until the case is resolved.
[Note: The ILB as yet has been unable to obtain these documents.]

Then, if later a judge determines reasonable lawyer fees and costs it would be paid out of that amount. If money remains from the third that was put aside it would then go back to Hoosiers.

And he said that the BMV has squandered $2 million in taxpayer funds fighting the suits.

Posted by Marcia Oddi on Monday, September 12, 2016
Posted to Indiana Courts | Indiana Government

Ind. Courts - July 2016 Bar Exam Results

Here is the 6-page, 2-column list of those applicants who were successful on the July 2016 Indiana Bar Exam.

Posted by Marcia Oddi on Monday, September 12, 2016
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 9/12/16):

Tuesday, Septemeber 13

Next week's oral arguments before the Supreme Court (week of 9/19/16):

Thursday, September 22

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/12/16):

Tuesday, September 13

Next week's oral arguments before the Court of Appeals (week of 9/19/16):

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, September 12, 2016
Posted to Upcoming Oral Arguments

Friday, September 09, 2016

Ind. Gov't - More on: "This small Indiana county sends more people to prison than San Francisco and Durham, N.C., combined. Why?"

Updating this ILB post from September 2nd, which quoted a NYT story that in turn quoted the Dearborn County prosecutor:

“I am proud of the fact that we send more people to jail than other counties,” Aaron Negangard, the elected prosecutor in Dearborn County, said last year. “That’s how we keep it safe here.”
Mike Perleberg of the EagleCounty 99.3FM reported yesterday in a story headed "Prosecutor Stands Firm Following New York Times Feature," that:
(Dearborn County, Ind.) – It’s been an interesting seven days for Dearborn-Ohio County Prosecutor Aaron Negangard since The New York Times featured the county in an article focusing on the discrepancies in criminal sentencing between rural communities and the country’s largest cities.

“I’ve gotten my share of hate social media and emails, but actually the support has been overwhelmingly in favor of it,” Negangard told Eagle Country 99.3’s Bubba Bo on Thursday morning.

The prosecutor said being featured in the article is exciting, but he’s also concerned with some of the information that was not included by the reporters.

(ILB: the story includes more details, plus an audio interview)

Posted by Marcia Oddi on Friday, September 09, 2016
Posted to Indiana Government

Ind. Gov't. - Indiana BMV vs Cohen & Malad?

Here are quotes from a news release issued this afternoon by the Indiana Bureau of Motor Vehicles (ILB emphasis):

INDIANAPOLIS, IN –Bureau of Motor Vehicles (BMV) Commissioner Kent Abernathy today announced approximately 5- million customers who were overcharged by BMV have received an additional $28.75 million in refunds by way of credits to their BMV accounts.

“Customers who were overcharged will find credits on their accounts that can be applied to their next transaction, or they can request a check from the BMV,” said Abernathy. “We are currently determining the most efficient ways to contact customers about their refunds, including email notification, postcards, and online notification through BMV’s website,” he added.

BMV has refunded the $28.75 million to its customers over the last few months. BMV maintains its commitment to refunding known, verifiable overcharges.

Under direction of current BMV leadership, the agency has undertaken additional efforts to complete this refund process. Those overcharges -- and undercharges -- were, in large part, due to the overly complex fee structure that existed throughout the Indiana Code for several years prior to recent statutory changes made through House Enrolled Act 1087. This was a product of collaboration between BMV and Indiana Lawmakers.

This morning, Irwin Levin and his firm, Cohen & Malad, LLP, counsel for plaintiffs in the current class action lawsuit against BMV, filed a court order demanding that BMV take back one-third of the refunds it has already provided to customers who were overcharged. Mr. Levin wants that money “set aside” for him and his firm.

“BMV has been issuing refunds since before the current lawsuit, which Mr. Levin claimed was filed to benefit BMV’s customers. Mr. Levin also claimed to be representing the best interests of Hoosier taxpayers. This request for the court to order BMV to take money away from those same taxpayers flies in the face of Mr. Levin’s claim to be representing their best interests,” said BMV General Counsel Adam Krupp. “It is stunning and inappropriate for Mr. Levin, or any lawyer, while claiming to represent Hoosiers’ best interests, to directly seek to take money out of Hoosiers’ pockets,” Krupp added.

The ILB is interested in posting the "court order" described in the BMV news release ...

Posted by Marcia Oddi on Friday, September 09, 2016
Posted to Indiana Courts

Ind. Courts - Topics relating to press (and perhaps public) access to court information

Steve Key, executive director and general counsel for the Hoosier State Press Association, writing in his monthly column in the September issue of the The Indiana Publisher, describes the newly established commercial courts system. (The ILB has a number of posts on commercial courts, available here.) Mr. Key's article then details some "other court subjects that have drawn our attention" this summer:

Posted by Marcia Oddi on Friday, September 09, 2016
Posted to Indiana Courts

Ind. Decisions - Interesting discussion in immigration case today from 7th Circuit

In Shmael Turkhan v. Loretta E. Lynch (Bd. Immig. Appeals), a 12-page opinion, Chief Judge Wood begins:

Bureaucracy’s “specific nature,” Max Weber said, “develops the more perfectly the more [it] is ‘dehumanized,’ the more completely it succeeds in eliminating from official business love, hatred, and all purely personal, irrational and emotional elements which escape calculation.” Max Weber, Bureaucracy, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 196, 215–16 (H.H. Gerth & C. Wright Mills eds. & trans., 1991). By this standard, the government’s treatment of this case has achieved perfection.

Posted by Marcia Oddi on Friday, September 09, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In Julie R. Waterfield v. Richard D. Waterfield, a 37-page opinion, Judge Riley writes:

Almost twenty years after the dissolution of her marriage to Richard, Julie appeals to this court in an effort to re-open the Settlement Agreement underlying the divorce decree. Claiming to have been the victim of fraud, Julie maintains that Richard misrepresented both the composition and value of the assets in the marital estate. Specifically, she asserts that by exploiting her trust, Richard induced Julie “to accept a divorce settlement that was more than $80,000,000 below that to which she was entitled.” (Appellant’s Br. p. 15). Within this overarching fraud allegation, Julie also disputes the trial court’s summary judgment rulings on her claims with respect

to attorney-client communications and the default judgment on Richard’s counterclaims. * * *

Based on the foregoing, we conclude as follows: (1) the trial court properly decided that Julie failed to establish that Richard had committed fraud during the negotiations leading to the Settlement Agreement; (2) the trial court properly denied Julie’s motion for summary judgment on Richard’s counterclaim for abuse of process; (3) the trial court’s imposition of a default judgment was just; and (4) Richard is entitled to an award of attorney fees.

In Dustin Todd Garner v. State of Indiana , a 7-page opinion, Judge May writes:
Dustin Todd Garner appeals his conviction of Level 6 felony battery with moderate bodily injury.1 The sole issue he raises is whether the trial court abused its discretion when it declined to instruct the jury on the lesser included offense of battery with bodily injury as a Class A misdemeanor. We affirm. * * *

No Indiana appellate court has heretofore considered when there is a serious evidentiary dispute about whether a victim experienced “pain” or “substantial pain.” There are presumably fact patterns under which a trial court might abuse its discretion by declining to instruct a jury about battery resulting in bodily injury as a lesser included offense, but we must affirm the trial court’s decision in this case because the injuries Knowles received could have justified a charge of Level 5 felony battery resulting in serious bodily injury. * * *

As the trial court did not abuse its discretion by declining Garner’s tendered instruction on a lesser included offense, we affirm.

NFP civil decisions today (3):

Connie Harrison v. Hubert Harrison (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of M.B., Father, and K.B., Child, M.B. v. Indiana Department of Child Services (mem. dec.)

Vernando Ross, a/k/a Randle Jackson v. State of Indiana (mem. dec.)

NFP criminal decisions today (6):

James R. Lunsford v. State of Indiana (mem. dec.)

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

Casey Dale Redman v. State of Indiana (mem. dec.)

Levi Runnells v. State of Indiana (mem. dec.)

Marco Lator Smith v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Friday, September 09, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Another view on Indiana bail reform [Updated]

Updating earlier ILB posts (here, here and here) on the newly announced bail reform rule, effective immediately in certain counties, Rod Rose of the Lebanon Reporter writes today:

Changes in Indiana’s bail system that were ordered by the Indiana Supreme Court Wednesday are discouraging to Boone County Prosecutor Todd Meyer. * * *

David Powell, executive director of the Indiana Prosecuting Attorneys Council, said, “We look forward to feedback from the nine pilot counties regarding implementation of the rule to continue to develop sound policy.”

Meyer thinks the policy is far from sound — or needed.

“This new rule is another good example of implementing something for the entire state that isn’t necessarily needed everywhere,” Meyer said Wednesday in an email. “If the system is broken in certain parts of the state then the plan should be to encourage/implement change in those counties and leave the rest of us alone.”

The new rule will allow offenders back into the community to commit more crime, he said.

“I am also concerned that more offenders facing serious felony charges will be given the opportunity to flee this jurisdiction under this new rule,” Meyer said.

Arrestees will provide much of the information for the risk assessments, Meyer said. “As with most risk assessment tools, the result is only as good as the information provided, and if you put garbage in, you’re going to get garbage out.”

He is also worried over the impact on fees, expenses and services that are now paid for by bond money.

[Updated at 3:17 PM] "New Indiana Criminal Rule Excites Defense Attorneys, Worries Prosecutors" is the headline to this EagleCountyOnline story from Mike Perleberg that begins:
(Lawrenceburg, Ind.) – Prosecutors and defense attorneys differ on whether a new criminal rule announced by the Indiana Supreme Court will make the state a safer place.

Posted by Marcia Oddi on Friday, September 09, 2016
Posted to Indiana Courts

Ind. Decisions - "Appeals court says video 'indisputably contradicts' South Bend police testimony"

Yesterday's Court of Appeals opinion in Royce Love v. State of Indiana (ILB summary here, 8th case) is the subject of a story today by Christian Scheckler of the South Bend Tribune. The long story begins:

On Aug. 4, 2013, South Bend police officers stunned Royce Love with Tasers before deploying a dog on the 32-year-old man, who had just led officers on a car chase before being stopped in an alley near downtown.

When Love struggled against the dog, officers delivered several kicks, including a blow to the head, before putting him in handcuffs. Prosecutors later charged Love with a felony count of resisting law enforcement while using a vehicle, along with misdemeanor counts of resisting law enforcement and striking a police animal.

At trial, officers testified that Love was "completely uncooperative" and tried to walk away after he got out of his vehicle.

But video showed otherwise.

On Thursday, the Indiana Court of Appeals overturned one of Love's convictions for resisting law enforcement and his conviction for striking a police animal, ruling that the video evidence "indisputably contradicts" the officers' accounts of Love's actions after he exited his vehicle.

In the 2-1 decision by the appeals court, Judge Elaine B. Brown wrote that footage from a police dashboard camera showed that Love raised his hands, lowered himself to all-fours and lay on his stomach within about 10 seconds after he exited his vehicle.

Love already had peacefully surrendered before officers deployed their Tasers and the dog, Brown wrote, adding that he struggled only to protect himself from the dog.

Another SBT story today, by the same reporter, begins:
Protesters interrupted several times Thursday evening as a panel of South Bend police officers, community activists and civil rights experts discussed the relationship between city police and minorities.

The discussion, held before a packed auditorium at the Salvation Army's Kroc Center, came at a time of heightened tension over high-profile encounters between police and black people.

Across the nation, confrontations have led to not only fatal shootings of black men, but also deadly attacks on police officers. In South Bend, meanwhile, recent news has brought claims of excessive force by police back to the forefront.

Posted by Marcia Oddi on Friday, September 09, 2016
Posted to Ind. App.Ct. Decisions

Thursday, September 08, 2016

Ind. Gov't. - "State AGs Are Increasingly Powerful -- and Partisan"

Alan Greenblatt writes in the September issue of Governing in an article subheaded: "The controversy surrounding Trump University showcases some of the sticky political situations that many attorneys general have been getting themselves in." A few quotes from the long story:

State attorneys general may be the freest actors in the American political system. Their broad discretion gives them enormous power, but it can also open them up to political and legal attacks. * * *

Last year, The New York Times won a Pulitzer Prize for its report on companies willing to wine and dine AGs and contribute heavily to their campaign accounts, in hopes of avoiding investigations and settlements. * * *

Attorneys general, most of whom are elected independently, are often described as the chief law enforcement officers in their states. That’s really a misnomer. Criminal cases are nearly always handled by district attorneys at the county level. AGs can get involved in criminal matters, but most of their focus is on consumer protection and other civil issues.

Indeed, they have become de facto national regulators of various industries, demanding that banks or other businesses change their ways as part of legal settlements. Given their status as free agents, they can turn those pressures off as easily as they can turn them on. “AGs have found a way to transform the office, so it’s not just rote law enforcement but really important in terms of making policy,” says Paul Nolette, author of a recent book about state AGs.

Which cases they choose to pursue is pretty much up to them. That has allowed Republicans to challenge the Obama administration on fronts ranging from health care to environmental regulation. Conversely, Democratic attorneys general opted not to defend state laws banning same-sex marriage.

Posted by Marcia Oddi on Thursday, September 08, 2016
Posted to Indiana Government

Ind. Gov't. - "Medical care in Indiana prisons draws scrutiny" by en banc CA 7

Virginia Black reports today in an important story the South Bend Tribune:

CHICAGO — Did the private company hired to provide medical care to Indiana inmates let Nicholas Glisson die after 37 days in prison by deliberately not coordinating his many health issues?

In a rare hearing Wednesday before the entire U.S. Court of Appeals for the 7th Circuit, 10 judges took turns peppering attorneys with questions before they decide whether an Indiana district judge erred when she decided the answer to that question was “No.”

At stake is whether a decision to overturn the district court — allowing a jury to decide the case — will set a precedent for other prisoner medical cases in the Seventh District, which includes Indiana, Illinois and Wisconsin.

In Glisson’s case, which was featured in a Tribune series in June titled “Profits over prisoners?”, the 50-year-old Centerville, Ind., man had endured surgeries and other treatments for medical conditions that included laryngeal cancer. This was before he was sent to prison in 2010 for his first-time conviction on drug dealing, for giving a friend one of his Oxycontin pills.

Glisson, who had a tube inserted in his trachea along with other accommodations, was still able to care for himself at home. But doctors warned the judge who sentenced him that sending the man to prison would amount to a death sentence.

Their warnings turned out to be prophetic. After Glisson was sent to the Department of Correction, a federal civil rights lawsuit alleges, some symptoms were ignored and no plan was devised to care for the medically fragile inmate.

Corizon Health, the private company Indiana’s DOC hires to provide health care, acknowledges it does not follow a DOC directive to create plans to care for seriously ill prisoners, Indianapolis civil rights attorney Michael Sutherlin told the judges, and that amounts to a policy to provide inadequate care.

More from the story:
Judges by turns interrupted and questioned Sutherlin and Richard Moore, an attorney whose firm represents Corizon, as they referred to their earlier, extensive briefs on the issue.

Those questions included who wrote the DOC health care directives laid out in the DOC’s contract with Corizon, including the directive to create health care treatment plans for chronically ill prisoners, and whether that is generally expected in medical care outside prisons.

There is more to read in the long story.

See also this June 12th story
by reporter Black headed "Inmate dies after 37 days in Indiana prison: Court grants rare rehearing of his case."

Here is the ILB summary of the original, Feb. 17th ruling by a 2-1 7th Circuit panel. The ILB emphasized this sentence from Chief Judge Wood's dissent:

Nicholas Glisson may not have been destined to live a long life, but he was managing his difficult medical situation successfully until he fell into the hands of the Indiana prison system and its medical-care provider, Corizon.
Here is a direct link to the audio of the oral argument yesterday before the entire, 10-member 7th Circuit, 15-1419, Alma Glisson v. Correctional Medical Services.

Posted by Marcia Oddi on Thursday, September 08, 2016
Posted to Ind. (7th Cir.) Decisions | Indiana Decisions | Indiana Government

Ind. Decisions - Court of Appeals issues 8 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (8):

In Thomas A. Carpenter, et al. v. The Cincinnati Specialty Underwriters Insurance Company, a 26-page opinion, Judge Crone writes:

This case arises from an incident at Lovell’s Lounge and Grill, in which Thomas A. Carpenter was injured by Jerry Dean Johnson. Carpenter, Lovell’s Lounge and Grill, LLC, and Jeremy Lovell d/b/a Lovell’s Lounge and Grill (collectively “Appellants”) appeal the judgment in favor of The Cincinnati Specialty Underwriters Insurance Company (“CSU”) on its action seeking a declaratory judgment regarding its obligations under its insurance policy with Lovell’s Lounge. In that judgment, the trial court found that CSU had no obligation to make payments under a consent judgment (“the Consent Judgment”), in which Carpenter and Lovell’s Lounge agreed that Carpenter’s injuries were caused by Lovell’s Lounge negligence or that Lovell’s Lounge was vicariously liable for Johnson’s negligence. Appellants argue that the trial court erred in finding that the Consent Judgment was the product of bad faith or collusion, and therefore collateral estoppel does not require CSU to be bound by the determinations of liability and damages in the Consent Judgment. Because we conclude that CSU has carried its burden to show by clear and convincing evidence that the Consent Judgment was the product of bad faith or collusion, we conclude that the trial court did not err in finding that collateral estoppel does not require CSU to be bound by the Consent Judgment. Therefore, we affirm.

In Jordache White and American Transport, LLC, and Canal Insurance Company v. George Reimer, a 13-page opinion, Judge Najam concludes:

In sum, we agree with the trial court that, under the facts and circumstances of this case, Reimer’s service on White at his Thebes, Illinois, address and service on American Transport through the Secretary of State was reasonably calculated to inform the Appellants that an action had been instituted against them, was effective under the Indiana Trial Rules, and was consistent with due process. Accordingly, we affirm the trial court’s order denying the Appellants’ joint motion to set aside the default judgment.

In Carl Wayne Montgomery v. Patricia Ann Montgomery, a 26-page opinion, Judge Barnes concludes:

The trial court clearly erred in granting Mother’s petition to modify custody, as there was insufficient evidence of a substantial change in circumstances justifying modification or that modification was in A.M.’s best interests. We reverse the modification of custody and remand for primary physical custody and sole legal custody of A.M. to be returned to Father, with parenting time for Mother in accordance with the Indiana Parenting Time Guidelines. Additionally, the trial court abused its discretion in awarding attorney fees to Mother, and we reverse that award as well.

In V. Ganz Builders and Development Co., Inc., and Vladimir Ganz v. Pioneer Lumber, Inc., a 21-page opinion, Judge Crone writes:

V. Ganz Builders and Development Co., Inc. (“VGB”), signed an application for a line of credit with Pioneer Lumber, Inc. (“Pioneer”), and also signed a credit account agreement. The line of credit was secured by a personal guaranty agreement signed by VGB’s president, Vladimir Ganz. Pioneer sued VGB and Ganz (collectively “Appellants”) for breach of contract and to enforce the guaranty. Appellants filed a counter motion for summary judgment, asserting that Pioneer’s claims were time-barred by the applicable statute of limitations. The trial court denied the motion, finding that Appellants waived this defense by failing to plead it in their answer to Pioneer’s complaint. After a bench trial, the court entered judgment in Pioneer’s favor. Appellants filed a motion to correct error, which was denied.

Appellants now appeal. As preliminary matters, Pioneer contends that Appellants failed to preserve their appellate rights and that they may not challenge the summary judgment order. Because Appellants’ motion to correct error was timely filed, and because the summary judgment order was not a final judgment, we disagree. For their part, Appellants assert that the trial court erred in finding that they waived their statute of limitations defense and in denying their counter motion for summary judgment. Because Pioneer has not affirmatively shown that it was prejudiced by Appellants raising the defense on summary judgment, and because Pioneer’s claims against Appellants were untimely filed, we reverse and remand with instructions to enter summary judgment in Appellants’ favor.

In In the Matter of J.B. and L.B.: J.J. (Mother) v. The Indiana Department of Child Services, a 10-page opinion on a motion for rehearing, Chief Judge Vaidik writes:

The Indiana Department of Child Services petitions for rehearing following our June 8, 2016 opinion in which we held that the CHINS court lost jurisdiction as soon as it discharged the parties, at which point the issue of custody reverted to the paternity court. DCS argues that the CHINS court’s custody-modification order survived the termination of the CHINS proceeding. * * *

Given that there are problems with each reading of subsection (d), we will not guess what the legislature meant when it said “[a]n order establishing or modifying paternity of a child by a juvenile court survives the termination of the [CHINS] proceeding.” We therefore ask the legislature to take a deeper look at Sections 31-30-1-12 and -13 in light of these issues. As a result, we reach the same result as our original opinion but for different reasons by looking beyond the language of Section 31-30-1-13 and turning our attention to the policy and purpose of the CHINS statutory scheme. * * *

It is clear that the policy and purpose of the CHINS statutory scheme is not to remove children from their parents without giving the parents a reasonable opportunity to participate. But this goal was not furthered in this case. That is, DCS used the coercive power of the State to insert itself into a family relationship by obtaining a CHINS finding and then had the CHINS court modify sole custody to Father and close the CHINS case thirty days later— without entering a dispositional decree and giving Mother a meaningful opportunity to participate in services that DCS itself had recommended in both the petition for parental participation and the predispositional report. This is particularly troublesome given that a CHINS adjudication has adverse consequences for parents. See Ind. Code § 31-35-2-4(b)(2)(B)(iii) (providing that two separate CHINS adjudications can be the basis for a petition to terminate parental rights). We therefore reverse that part of the CHINS court’s order that discharged the parties and terminated the CHINS case and remand this case for further proceedings consistent with the CHINS statutes, including any appropriate services for Mother.

In Donald J. Burns v. State of Indiana , a 12-page opinion, Sr. Judge Sharpnack writes:

Donald Burns appeals his convictions for murder, a felony, two counts of forgery, as Class C felonies, theft as a Class D felony, and two counts of receiving stolen property, as Class D felonies. He also was found to be an habitual offender. He alleges the trial court abused its discretion when it admitted certain photographs at trial, and that there is insufficient evidence of his intent to kill the victim to support a conviction of murder. We affirm.

In Jason Tibbs v. State of Indiana, a 38-page opinion, Judge Barnes concludes:

The trial court did not abuse its discretion by excluding the third-party perpetrator evidence Tibbs sought to introduce, nor was it fundamental error to exclude evidence Tibbs wanted to use to either impeach the investigation into Rison’s murder or Freeman’s testimony. The trial court properly denied Tibbs’s Trial Rule 60(B) motion for relief from judgment. We affirm.

In Royce Love v. State of Indiana, a 22-page, 2-1 opinion, Judge Brown writes:

Royce Love appeals his convictions for mistreatment of a law enforcement animal and resisting law enforcement as class A misdemeanors. Love raises two issues, which we revise and restate as whether the evidence is sufficient to sustain his convictions. * * *

The Court instructed that appellate courts may review video evidence like any other evidence in the record, but reiterated that they may not reweigh the evidence. A question therefore arises regarding the point at which reviewing video evidence, as part of our appellate duty to probe and sift the evidence most favorable to the State to determine whether substantial evidence of probative value exists, becomes impermissible reweighing of evidence. For help answering that question, we find an opinion by the Court of Criminal Appeals of Texas, Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000), instructive. * * *

As was the case in Carmouche, under these narrow circumstances we cannot blind ourselves to the videotape evidence simply because the officers’ testimony may, by itself, support the guilty verdicts. Based upon the record, we cannot say that the officers were acting in the lawful performance of their duties or that Love was forcibly resisting when they tased Love and deployed the dog, and therefore the evidence is insufficient to support Love’s convictions for resisting law enforcement and mistreatment of a law enforcement animal. * * *

For the foregoing reasons, we reverse Love’s convictions for mistreatment of a law enforcement animal and resisting law enforcement as class A misdemeanors. Reversed.

Baker, J., concurs.
Pyle, J., dissents with separate opinion. [which begins, at p. 19] If I were presented with the script of the latest Star Wars movie, The Force Awakens, before it was released, and asked whether it was a good story, I could probably make an independent assessment concluding that it was excellent. However, I would not be in the best position to make that judgment. Quite simply, I did not see the movie. I did not see the mind-blowing special effects; I did not see the facial expressions of the actors giving meaning to the story; I did not hear the humor, passion, and sorrow that filled the voices of the actors; and I did not hear John Williams’s legendary soaring symphony. In fact, my limited perspective would impact the accuracy of my conclusion. As a result, if you really want to know whether the script is good, you need to go to the movie.

Likewise, at the appellate level, my colleagues and I are asked to make judgments based upon the reading of a script, a transcript. However, we are often not in the best position to make decisions about which witnesses to believe or which piece of evidence is most important. This is true because we do not attend the movie; we are not present at the trial or hearing.

NFP civil decisions today (2):

Timothy C. and Sonia E. Platt v. Citimortgage, Inc. (mem. dec.)

J.B. v. Review Board of the Indiana Department of Workforce Development (mem. dec.)

NFP criminal decisions today (3):

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

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

Robert L. Albores, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, September 08, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Release, bail rules changed: Non-risk arrestees not required to pay"

The Supreme Court's changes, released yesterday, are the subject of this story today in the Fort Wayne Journal Gazette, reported by Rebecca S. Green. Some quotes:

Putting up a bail bond is not necessarily the most effective way of ensuring a defendant appears in court.

In fact, according to research, keeping a person in jail before trial for more than just a day or two often results in greater likelihood of prison sentences and increases the chance they will re-offend, Allen Superior Court Judge John Surbeck said.

“What is it about paying money that makes it likely that a person is going to appear in court?” Surbeck asked.

On Wednesday, the Indiana Supreme Court announced changes to how the state approaches bail and pretrial release.

Those changes include the use of assessment tools to determine whether an arrestee poses a risk to public safety or is a flight risk. If they are deemed not to, they are to be quickly released without having to post bail.

“The reforms are designed to provide for public safety and protect the presumption of innocence,” Indiana Supreme Court Chief Justice Loretta Rush said in a statement. “The prompt release of arrestees who do not pose a public safety risk is associated with reduced recidivism and lower jail expenses.”

Because Allen County has been one of nine pilot counties, the changes go into effect immediately. For the rest of the state, they do not have to implement the new policies until 2018. * * *

Allen County Chief Deputy Prosecutor Mike McAlexander said courts locally are already observing the spirit of the new rules.

Allen County also has a “pretty sophisticated” bond schedule, which determines who pays what to get out of jail on what charges and when, Surbeck said.

But there are still places around the state where the use of jails to detain low-risk arrestees is commonplace.

Indiana does not have a constitutional authority for pretrial detention, except in cases of murder, Surbeck said. So the courts end up doing it artificially, using money as the lock and key, he said.

“We have a bunch of people sitting in jail who are presumed to be innocent who can’t pay some money that can’t get out on bond,” Surbeck said.

Posted by Marcia Oddi on Thursday, September 08, 2016
Posted to Indiana Courts

Ind. Decisions - "Supreme Court won't hear quarry suit"

As the ILB posted Tuesday, the Supreme Court has, 3-2, denied transfer in Rogers Group, Inc. v. Tippecanoe County, et al.

Here is Jeremy Ervin's story in today's Lafayette Journal & Courier. Some quotes:

AMERICUS, Ind. — For a controversial quarry project to move forward in Americus, the company behind it must step back into the public spotlight.

On Sept. 1, the Indiana Supreme Court declined to revisit an appeals court decision that struck down a last-minute ordinance passed in by the Tippecanoe County Board of Commissioners. But the court upheld the county's requirement for a special exception to mine on a flood plain.

"We feel good about that but won't really feel good until it's completely done and over with," said Bill Miller, co-president of the Americus Area Community Coalition. His wife, Kay Miller, also is co-president.

Rogers Group has not yet filed for a special exception with the Area Board of Zoning Appeals.

"We expect that to happen, but we have no idea when that would be," Tippecanoe County Commissioner Tom Murtaugh said Wednesday. * * *

The appeals court ruled that the ordinance was invalid. It also upheld the requirement for the special exception by the Area Board of Zoning Appeals. To get the exception, Rogers Group must complete a detailed mining reclamation plan and file it with the board.

Among other requirements for the special exception, a party also must provide an "Interested Persons List" of people who own property adjacent or close to the project site. The party requesting the exception must take certain steps to notify the public, such as posting signs, mailing letters to people on the "Interested Persons List" and publishing notifications in local newspapers.

Posted by Marcia Oddi on Thursday, September 08, 2016
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Wednesday, September 07, 2016

Ind. Decisions - Tax Court issues first "big box/dark box" assessment appeal; this is big

In Howard County Assessor v. Kohl's Indiana LP, an 11-page opinion, Judge Wentworth writes:

On December 31, 2014, the Indiana Board of Tax Review issued a final determination valuing the Kohl’s store in Kokomo, Indiana for purposes of the 2010, 2011, and 2012 assessments. The Howard County Assessor has challenged that final determination, but the Court affirms. * * *

On appeal, the Assessor asserts that the Indiana Board’s final determination must be reversed. In advancing that assertion, the Assessor has not argued that the Indiana Board erred when it determined that

  1. properties like the subject property frequently trade in the market for a general retail use,
  2. the subject property’s current use was its highest and best use, or
  3. she had not demonstrated that the subject property was a special purpose property.
Rather, the Assessor argues that the Indiana Board’s final determination must be reversed because the Meijer, Trimas Fasteners, and Millenium cases upon which it relied were wrongly decided. * * *

On appeal, the Assessor has done nothing more than express her disagreement with the Court’s decisions in the Meijer, Trimas Fasteners, and Millenium cases. The Court, however, does not believe it “got it wrong” and therefore continues to stand by those decisions.

CONCLUSION

For the foregoing reasons, the Indiana Board’s final determination in this matter is AFFIRMED.

ILB: For background, start with this July 4, 2016 ILB post on the oral argument. The ILB has had a number of posts on the appraisal/assessment of big box stores.

Posted by Marcia Oddi on Wednesday, September 07, 2016
Posted to Ind. Tax Ct. Decisions

Ind. Courts - More on: Bail reform rule announced, effective immediately in certain counties [Updated]

Supplementing this ILB post from this morning, WANE is now reporting, under the heading "Indiana high court orders most arrestees released without bail":

INDIANAPOLIS (WANE) An Indiana Supreme Court-led reform of the state’s bail system has called for suspects placed under arrest in a handful of counties, Allen included, to be released without bail.

The state’s high court said Wednesday that in an effort to enhance public safety and “protect the presumption of innocence,” suspects who do not pose a public safety risk or flight risk must be released after they are charged without bail. The rule was made effective immediately in Allen, Bartholomew, Hamilton, Hendricks, Jefferson, Monroe, St. Joseph, Starke, and Tipton counties. It will be expanded to all courts January 1, 2018.

Evidence-based risk-assessment tools will be used to release suspects, the court said.

The change comes as the state Supreme Court and a coalition of partners, including defense attorneys, probation officers, lawmakers, and trial court judges, overhauled the state’s bail system.

Indiana Public Defender Council Executive Director Larry Landis said the change is a necessary one.

“The current system confines people pretrial if they cannot afford to post bail even if they are neither a flight risk nor a public safety threat,” said Landis. “The new rule will reduce unnecessary, unjust, and expensive pretrial confinement without jeopardizing public safety.”

[Updated at 5:15 PM] Here is Leigh DeNoon's story at WFYI:
Indiana's jails are overcrowded and many defendants are too poor to post bail. Indiana's Supreme Court has adopted a new rule to help remedy the situation.

Seventy percent of those in jail are simply awaiting trail, according to Larry Landis, executive director of the Indiana Public Defenders Council.

“They’ve been charged. They are only there for one reason and that’s because they cannot afford to buy their way out,” Landis said.

Murder has never been a bailable offense – but defendants facing every other serious charge could bail out. “It’s not because anybody’s made a judgment about we need to confine you because you’re a risk of some sort. We just do arbitrary amounts set for bail based on the charge,” he said.

Landis says nine pilot counties volunteered. Allen, Bartholomew, Hamilton, Hendricks, Jefferson, Monroe, St. Joseph, Starke and Tipton will use evidence-based risk assessments for pre-trial release and create a monitoring system to make sure defendants show up for court.

“It asks a series of questions and then based on those questions, they make an assessment of risk of flight, risk of danger to the community," Landis said.

The Supreme Court says the reforms are based on recommendations from defense counsel, probation officers, lawmakers, and trial court judges. The pre-trial release program will go statewide in January of 2018.

Posted by Marcia Oddi on Wednesday, September 07, 2016
Posted to Indiana Courts

Courts - "Sex offender laws and the 6th Circuit’s Ex Post Facto Clause ruling"

Updating this ILB post from August 25th, David Post writes today in the Volokh Conspiracy. From the start of the long post:

I wanted to add a few words to co-blogger Jonathan Adler’s posting about the recent 6th Circuit decision in Doe v. Snyder, in which the court voided application of the Michigan Sex Offender Registration Act (SORA) on the grounds that it imposes retroactive punishment on previously convicted sex offenders in violation of the constitutional prohibition against Ex Post Facto laws.

The decision is an especially important one, possibly signaling, in Mark Stern’s words over on Slate, that “the judiciary has finally begun to view draconian sex offender laws as the unconstitutional monstrosities they obviously are.”

Here’s the case, in a nutshell. The Michigan SORA is typical of the schemes in place in all of the 50 states. Beginning in the mid-’90s, states (with federal encouragement and financial assistance) began requiring all those who had been convicted at any point in the past of having committed a “sex offense” — typically defined, as in the federal statute (42 USC 16911), as “a criminal offense that has an element involving a sexual act or sexual contact with another”** — to provide a wide range of identifying information (names, addresses, places of employment, schools being attended, vehicle make and model, etc.) to law enforcement officials. This information was then placed in state-operated, publicly accessible sex offender registry databases. * * *

Posted by Marcia Oddi on Wednesday, September 07, 2016
Posted to Courts in general

Ind. Courts - Bail reform rule announced, effective immediately in certain counties

The Supreme Court has today issued an Order adopting Criminal Rule 26, urging Indiana trial courts to use evidence-based risk assessments to inform pretrial release decisions.

Here is the accompanying news release:

Chief Justice Loretta Rush explained, "The reforms are designed to provide for public safety and protect the presumption of innocence. The prompt release of arrestees who do not pose a public safety risk is associated with reduced recidivism and lower jail expenses."

The Court is encouraging the use of evidence-based risk assessment tools to inform pretrial release decisions. If an arrestee does not pose a substantial flight risk or danger to the community, the arrestee should be released without bail. There are exceptions, such as murder charges or if the arrestee is on probation. The rule can be found online.

The reforms are based on recommendations from defense counsel, probation officers, lawmakers, and trial court judges. Indiana Public Defender Council Executive Director Larry Landis calls the rule a significant improvement to the bail system. Landis said, "The current system confines people pretrial if they cannot afford to post bail even if they are neither a flight risk nor a public safety threat. The new rule will reduce unnecessary, unjust, and expensive pretrial confinement without jeopardizing public safety."

The rule is effective immediately for Allen, Bartholomew, Hamilton, Hendricks, Jefferson, Monroe, St. Joseph, Starke, and Tipton counties and will be expanded to all courts January 1, 2018. Indiana Prosecuting Attorneys Council Executive Director David Powell explained, "Prosecutors encourage the implementation of fair pretrial procedures that serve to protect the public and we look forward to feedback from the nine pilot counties regarding implementation of the rule to continue developing sound policy."

The rule continues the successful statewide work known as Evidence Based Decision Making (EBDM). EBDM is a criminal justice improvement initiative for both juveniles and adults by local and state leaders to create a safer and healthier Indiana and ensure criminal justice decisions are informed by data.

Posted by Marcia Oddi on Wednesday, September 07, 2016
Posted to Indiana Courts

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

For publication opinions today (0):

NFP civil decisions today (1):

In the Matter of: J.B., A Child in Need of Services: S.M. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (2):

Aaron Isby a/k/a Aaron Israel v. Richard Brown in his capacity as Warden of Wabash Valley Correctional Facility (mem. dec.)

Alan James Hoover v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, September 07, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Guilty plea doesn't bar candidate from running for school board"

That is the headline to this story by Kirsten Clark in the Indiana section of today's Louisville Courier Journal. A few quotes:

An incident in which school board candidate Teresa Bottorff-Perkins pleaded guilty to a felony shoplifting charge two years ago does not disqualify her from running for re-election in November, the Clark County Board of Elections determined Tuesday evening.

Greater Clark County School board challenger Kelli Datillo, who has previously expressed concerns about Bottorff-Perkins’ admission of guilt, requested the hearing to determine whether Indiana statute – a code barring convicted felons from seeking public office – would prevent the incumbent from running. [IC 3-8-1-5 is cited; sec. 5, which was last amended in 2014, begins on p. 4] * * *

The board in a 2-1 vote decided that Bottorff-Perkins, who has served on the school board for four years, would only be barred from running if she had been convicted of the felony, Popp said.

ILB: Here is an ILB post about a somewhat similar situation in 2012.

Posted by Marcia Oddi on Wednesday, September 07, 2016
Posted to Indiana Government

Tuesday, September 06, 2016

Ind. Decisions - Transfer list for week ending September 2, 2016

Here is the Clerk's transfer list for the week ending Friday, Sept. 2, 2016. It is two pages (and 21 cases) long.

Two transfers were granted last week (thereby vacating the COA opinions):

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

Posted by Marcia Oddi on Tuesday, September 06, 2016
Posted to Indiana Transfer Lists

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):

Brian W. Ellison v. State of Indiana (mem. dec.)

Kevin E. Groover v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, September 06, 2016
Posted to Ind. App.Ct. Decisions

Courts - "Analysis: Without conservative Supreme Court majority, voter-law challengers make gains"

This long, excellent report from Robert Barnes of the Washington Post, published here in the Houston Chronicle on Sept. 5th, begins:

WASHINGTON - A coalition of civil rights groups, Democratic lawyers and the Obama administration has scored significant victories in overturning strict voting laws, highlighting how the death of Justice Antonin Scalia has removed the Supreme Court as a crucial conservative backstop for such measures.

With the presidential election approaching, the challengers have rung up wins against their two top targets. Texas and North Carolina are now under judicial order to shelve comprehensive voting laws, passed by Republican legislators, that appeals courts said discriminated against African Americans and Hispanics.

In Wisconsin, federal courts restored some early-voting opportunities - seen as beneficial to African American voters, who overwhelmingly vote Democratic - that had been scotched by the state legislature. And a federal judge has been tasked with overseeing the state's efforts to make it easier for those without the documentation required by the state to cast ballots.

Of the three states, only North Carolina even tried to get the Supreme Court to put the lower-court decisions on hold. But without Scalia, who died in February, to provide a fifth vote for conservatives, the high court deadlocked 4 to 4, and the lower-court prohibitions remained in place.

With the Supreme Court at an ideological impasse and Senate Republicans refusing to allow hearings for President Barack Obama's nominee to the court, Merrick Garland, the final state rules for elections throughout the country are likely to be set in a variety of rulings by state courts and lower-level federal judges.

Posted by Marcia Oddi on Tuesday, September 06, 2016
Posted to Courts in general

Ind. Decisions - "Alexandria man can't get $720 back from drug buy"

The Supreme Court's Sept. 1 decision in D.A. v. State of Indiana (ILB summary here) is the subject of a Sept. 4th story in the Anderson Herald Bulletin that concludes:

"While the plain meaning of the expungement statutes governs this case, we are sympathetic to D.A.’s argument that the purpose of the law is to provide second chances," wrote Chief Justice Loretta Rush in the ruling.

"But a policy of second chances does not allow us to expand Indiana’s expungement law to cover any record with some nexus to a criminal conviction,' he [sic.] wrote.

Posted by Marcia Oddi on Tuesday, September 06, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Appeals court rules judges can ignore complicated law"

Dan Carden of the NWI Times reported this weekend on the Aug. 9, 2016 Court of Appeals decision in Edgardo A. Henriquez v. State of Indiana.

Here is the ILB summary of the 2-1 opinion from Aug. 9, where the ILB highlighted this sentence from the majority opinion: " We also urge the legislature to revisit Indiana Code section 35-38-1-1(b), which imposes an impracticable burden on our trial courts."

From the long story:

INDIANAPOLIS — When a state law is hard to follow and serves a debatable practical purpose, are Hoosiers obligated to obey it?

According to one three-judge panel of the Indiana Court of Appeals, the answer is no.

A recent 2-1 ruling penned by Chief Appeals Judge Nancy Vaidik, a Porter County native, concluded that trial judges can ignore a statutory requirement to inform convicted felons of their possible release dates from prison when pronouncing a criminal sentence.

State law, since at least 1995, mandates that a judge "shall advise the person that the person is sentenced for not less than the earliest release date, and for not more than the maximum possible release date."

In the case before the appeals court, Elkhart Superior Judge Teresa Cataldo read exactly those words in issuing a 40-year sentence without telling convicted child molester Edgardo Henriquez, 36, the actual "earliest" and "maximum" dates he could be released from prison.

Henriquez's lawyer argued in his appeal that he was improperly sentenced, because the trial judge did not calculate and announce his client's possible release dates.

Vaidik brushed aside that argument, claiming "trial courts are not equipped to determine these dates." * * *

Judge John Baker dissented from the appellate court ruling written by Vaidik and supported by Judge Edward Najam Jr.

Baker agreed that Henriquez is not entitled to relief due to the sentencing issue.

But, he said, judges have an obligation to follow the law, "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."

"Yes, it is complicated, and yes, it will require consideration of multiple factors and calendars. But I am confident that the trial judges of this state are up to the task," Baker said.

"The mere fact that a statutory requirement is difficult to fulfill cannot possibly mean that it can be ignored altogether."

Henriquez has until Thursday to decide whether to ask the Indiana Supreme Court to review the appellate decision.

Posted by Marcia Oddi on Tuesday, September 06, 2016
Posted to Ind. App.Ct. Decisions

Courts - Illinois wine shipping law challenged in federal court

Scott Holland of the Cook County Record reported Sept. 2 that Lebamoff Enterprises, which operates 15 wine retail stores in Fort Wayne, Ind., is among the plaintiffs:

... suing the state of Illinois over its regulations hampering out-of-state wine sellers. * * *

According to the complaint [filed Sept. 1 in federal court in Chicago], wine shipping is legal within Illinois, but companies may not export product into the state and consumers may not import from outside Illinois. Doust and Irwin argue the limitations violate federal laws on interstate commerce applicable to retailers and customers.

Posted by Marcia Oddi on Tuesday, September 06, 2016
Posted to Courts in general

Ind. Decisions - Upcoming oral arguments this week and next

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

Next week's oral arguments before the Supreme Court (week of 9/12/16):

Tuesday, Septemeber 13

Webcasts of Supreme Court oral arguments are available here.


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

Thursday, September 8

Next week's oral arguments before the Court of Appeals (week of 9/12/16):

Tuesday, September 13

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

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


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

Posted by Marcia Oddi on Tuesday, September 06, 2016
Posted to Upcoming Oral Arguments

Ind. Decisions - "Parkview argues to keep its billing secret"

The Supreme Court oral argument last Thursday in Parkview Hospital, Inc. v. Thomas E. Frost, et al. (02A03-1507-PL-00959) (you may watch it here) is the subject of a Sept. 2nd story by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – Parkview Hospital argued before the Indiana Supreme Court on Thursday that it should not have to release information about charges and discounts it provides to insured patients.

The question is at the core of a dispute with Thomas Frost, who was catastrophically injured in a truck-motorcycle accident and taken by air to Parkview in October 2013.

He stayed in the hospital for more than a month and then transitioned to skilled nursing at Parkview Randallia. His total bill was more than $625,000. He did not have medical insurance.

Frost is disputing the reasonableness of the charges Parkview has sought under the Indiana Hospital Lien Act. His attorneys asked for information about discounts provided to patients who either had private health insurance or who are covered by government health care programs such as Medicaid and Medicare.

But Parkview has blocked the maneuver and asked the Indiana Supreme Court to reverse decisions by the trial court and Indiana Court of Appeals in Frost’s favor.

The court had not accepted transfer of the case at the time of the arguments. That means if the court denies the transfer, Parkview would lose the case and be forced to provide the requested information. If the justices accept the case the court would issue a ruling in the coming months one way or the other. * * *

Ed Chester, the attorney representing Frost, said a billing expert hired by Frost has determined the reasonable value of the services Parkview provided was $246,640 – about 39 percent of what was charged in the case.

He said rates from the chargemaster – the official list of charges for all procedures, services and goods provided by a hospital – ­aren’t intended to be paid. They are simply a starting point for negotiation between the hospital and insurance company.

It appears there was no negotiation or discount in the Frost case.

Fort Wayne attorney Tom Manges also argued for Frost on behalf of the Indiana Trial Lawyers Association, saying the Legislature has tried to rein in hospital billing in recent years. He said Parkview and other hospitals are very good at maximizing how much money they receive and that it’s relevant to compare Parkview’s costs with its markup.

ILB: Readers may remember an earlier, similar case from 2012 where the Supreme Court, to quote a Star story from the time, "reversed an appeals court ruling that let two uninsured patients sue IU Health over hospital bills that were much higher than insured patients were charged for the same care." See also this ILB post from March 21, 2016.

Posted by Marcia Oddi on Tuesday, September 06, 2016
Posted to Ind. App.Ct. Decisions

Friday, September 02, 2016

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

Updating this Aug. 31 ILB post, SD Ind. Judge Tanya Walton Pratt has today issued a 14-page Order on defendant's motion for attorney fees and costs, ending with:

IV. CONCLUSION. For the foregoing reasons, Taylor Defendants’ Motion for Attorney Fees and Costs and Bill of Costs ( Filing No. 172, Filing No. 173 ) are GRANTED . Taylor Defendants are awarded their attorney fees in the amount of $78,180.00 ( 390.9 hours x $200.00), their costs in the amount of $2,099.65 ($2,349.65 – $250.00), and their appellate fees and costs in the amount of $13,591.50, for a total award of $ 93,871.15 against Plaintiff Richard Bell.

Posted by Marcia Oddi on Friday, September 02, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't - Pence Names Sarah Freeman as a Commissioner of Indiana Utility Regulatory Commission

From the news release:

Indianapolis – Governor Mike Pence today named Sarah Freeman as a Commissioner of the Indiana Utility Regulatory Commission (IURC). Freeman will fill the vacancy created by the departure of Commissioner Carolene Mays-Medley, who was recently appointed Executive Director of the White River State Park Development Commission. Freeman will serve the remainder of Mays-Medley’s term, which expires December 31, 2017.

“Sarah Freeman has dedicated her life to public service and knows firsthand the laws that govern the utilities in our state,” said Governor Pence. “I’m confident her background and subject-matter expertise will serve Sarah well as she continues her work for the people of Indiana as Commissioner of the Indiana Utility Regulatory Commission.”

For more than 15 years, Freeman has worked as a senior staff attorney in the Legislative Services Agency, where she serves as counsel for the House Utilities, Energy, and Telecommunications Committee and the Senate Utilities Committee. In this role, she has drafted or participated in drafting significant utility legislation in recent years. Previously, she has worked as Deputy Attorney General in the Office of the Attorney General, and as a judicial clerk in the Indiana Supreme Court. Freeman was also recently appointed to the National Conference of State Legislatures Task Force on Cybersecurity. Freeman earned her undergraduate degrees at Indiana University in Bloomington and her law degree at Indiana University’s Maurer School of Law.

Posted by Marcia Oddi on Friday, September 02, 2016
Posted to Indiana Government

Ind. Courts - Commercial courts and e-filing focus of Supreme Court symposium

From the Supreme Court today:

The Indiana Supreme Court is hosting a Continuing Legal Education (CLE) symposium to provide information about commercial courts and e-filing. General counsel from Indiana businesses, lawyers, lawyer-legislators, and other business leaders are invited to the 90-minute learning opportunity. The event will take place on Tuesday, September 27 at 2:00 p.m. EDT at the State House in the Indiana Supreme Court Courtroom.

The symposium highlights the Court’s work to modernize the judicial branch. Chief Justice Loretta H. Rush explained, "As the state celebrates the bicentennial we reflect on past accomplishments and pursue new initiatives to ensure our courts' continued success for the next two centuries. Commercial courts and e-filing will allow our judiciary to enter another century of statehood with modern efficiencies built on a foundation of open courts and timely justice."

Commercial courts are designed to bring about more efficient resolution of complex business litigation. As Kevin Brinegar, President and CEO of the Indiana Chamber of Commerce, stated, "Businesses locate in states that resolve disputes consistently and reliably. Establishing commercial courts promotes confidence and predictability and keeps Indiana’s business environment competitive."

A little more than one year after the court launched the revolutionary electronic filing project, approximately 145,000 electronic documents have been accepted. Hamilton County piloted the e-filing project and now requires electronic filings. Judge Paul Felix explained, "E-filing works, it's easy, and it makes the courts more efficient, reliable, and productive."

Space is limited. Media interested in attending should contact Kathryn.Dolan@courts.in.gov. Business leaders and lawyers interested in attending should contact Julie.McDonald@courts.in.gov.

There is no indication that this event will be videocast.

Posted by Marcia Oddi on Friday, September 02, 2016
Posted to E-filing | Ind. Commercial Courts | Indiana Courts

Ind. Decisions - Why is this COA decision NFP?

Indiana attorney Robert Feightner writes to the ILB about today's NFP COA decision in: In the Matter of the Commitment of H.F. v. Eskenazi Health/Midtown Clinic (mem. dec.), noting that the court states that although the case is moot, it states an exception to mootness because the case involves issues of great public interest and likely to recur -- why did the court make it NFP if it is a case of great public interest?

H.F. acknowledges her ninety - day involuntary commitment to Eskenazi hospital has expired and therefore this case is moot. See Appellant’s Brief at 10 - 11. Generally, a case is deemed moot and usually dismissed when a court is unable to render effective relief to a party. R.P. v. Optional Behaviors MHS, 26 N.E.3d 1032, 1035 (Ind. Ct. App. 2015). Because H.F. has been released from her temporary commitment at Eskenazi, this court cannot render effective relief to her. See id. However, “Indiana courts have long recognized that a case may be decided on its merits under an exception to the general rule when the case involves questions of great public interest. Typically, cases falling in the ‘great public interest’ exception contain issues likely to recur.” Id. (citation omitted). We have previously acknowledged the issue of whether there is sufficient evidence to establish a person is gravely disabled and in need of involuntary commitment is a matter of great public importance that is likely to recur. See id. Therefore, we will address the merits of H.F.’s claim.
ILB: This is not the first time ... See this ILB post from July 5, 2016, addressing another civil commitment case, In the Matter of the Civil Commitment of L.V. v. Eskenazi Health (mem. dec.), where another reader asks:
Civil commitment case, moot because commitment over, decided on the merits despite mootness because it is a matter of “great public interest.” If it is a matter of public interest, why is it NFP?

Posted by Marcia Oddi on Friday, September 02, 2016
Posted to Why is this NFP?

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

For publication opinions today (0):

NFP civil decisions today (1):

In the Matter of the Commitment of H.F. v. Eskenazi Health/Midtown Clinic (mem. dec.)

NFP criminal decisions today (2):

Kristen N. Collette v. State of Indiana (mem. dec.)

Timothy D. Shuff v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, September 02, 2016
Posted to Ind. App.Ct. Decisions

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

Updating this ILB post from Aug. 25, the South Bend Tribune reported Sept. 1:

Purvi Patel, the Granger woman who won her appeal of a feticide conviction, was released from prison Thursday morning.
Here is an AP story.

Posted by Marcia Oddi on Friday, September 02, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Gun licenses in Indiana outpacing last year"

Madeline Buckley reports in the Indianapolis Star today in a story that begins [ILB emphasis]:

The number of Hoosiers who hold active licenses to carry handguns has grown by nearly 50 percent since 2012, according to an IndyStar analysis, and the state is on pace to issue substantially more licenses than it did last year.

IndyStar analyzed data kept by the Indiana State Police regarding handgun permit holders. In Indiana, residents do not need a permit to buy a gun or to carry a rifle, and permits are not required to go target shooting or to keep guns at home. Permits are needed only to carry handguns in public.

In short: the data offer only a limited glimpse into how many Hoosiers are gun owners.

The numbers do, though, show a clear increase in the number of Hoosiers who want the option to carry a handgun in public. In the first three months of 2016, the state approved more than 50,000 carry permits, more than half of the total number of permits approved in 2015.

The state also is seeing the number of women permit holders skyrocketing. By the first quarter of 2016, more than 174,000 Hoosier women held permits, up nearly 90 percent from the roughly 92,000 women who held permits in 2012.

The story includes a map of Indiana comparing percent of licensed gun owners by county.

ILB: As to why "the data offer only a limited glimpse into how many Hoosiers are gun owners," the answer may be found in this worth reading in full Dec. 26, 2012 ILB post. Quoted in the post is a Jan. 27, 2010 FWJG editorial about a bill then pending in the General Assembly. The bill became law. From the editorial:

The bill would make permits to carry handguns a private record, no longer open to the public. These are not “gun permits”; these are licenses that specifically allow people to carry handguns in public. Such permits are not necessary to carry rifles or shotguns, nor are they needed to have a handgun in your home.

The move comes after the Indianapolis Star and the Bloomington Herald-Times published information about gun permits. Notably, neither paper published the names and addresses of permit holders – the information the gun lobby says should be secret. The Star’s story, in fact, illustrated exactly why the permits should be a public record: It found numerous instances where the carry permits were wrongly issued to convicted felons or unwisely issued over the recommendations of local police chiefs and sheriffs.

Supporters of the law want to deny the scrutiny that could uncover future cases where convicted felons get permits to carry concealed handguns. And gun rights advocates should note that public scrutiny of records can also guard against people being wrongly denied carry permits.

Posted by Marcia Oddi on Friday, September 02, 2016
Posted to Indiana Government

Ind. Gov't - "This small Indiana county sends more people to prison than San Francisco and Durham, N.C., combined. Why?"

Long, important story today in the NY Times, by John Keller and Adam Pearce. The shocking opening, especially if you are a Hoosier:

LAWRENCEBURG, Ind. — Donnie Gaddis picked the wrong county to sell 15 oxycodone pills to an undercover officer.

If Mr. Gaddis had been caught 20 miles to the east, in Cincinnati, he would have received a maximum of six months in prison, court records show. In San Francisco or Brooklyn, he would probably have received drug treatment or probation, lawyers say.

But Mr. Gaddis lived in Dearborn County, Ind., which sends more people to prison per capita than nearly any other county in the United States. After agreeing to a plea deal, he was sentenced to 12 years in prison.

“Years? Holy Toledo — I’ve settled murders for a lot less than that,” said Philip Stephens, a public defender in Cincinnati.

Dearborn County represents the new boom in American prisons: mostly white, rural and politically conservative.

A bipartisan campaign to reduce mass incarceration has led to enormous declines in new inmates from big cities, cutting America’s prison population for the first time since the 1970s. From 2006 to 2014, annual prison admissions dropped 36 percent in Indianapolis; 37 percent in Brooklyn; 69 percent in Los Angeles County; and 93 percent in San Francisco.

But large parts of rural and suburban America — overwhelmed by the heroin epidemic and concerned about the safety of diverting people from prison — have gone the opposite direction. Prison admissions in counties with fewer than 100,000 people have risen even as crime has fallen, according to a New York Times analysis, which offers a newly detailed look at the geography of American incarceration.

Just a decade ago, people in rural, suburban and urban areas were all about equally likely to go to prison. But now people in small counties are about 50 percent more likely to go to prison than people in populous counties.

The stark disparities in how counties punish crime show the limits of recent state and federal changes to reduce the number of inmates. Far from Washington and state capitals, county prosecutors and judges continue to wield great power over who goes to prison and for how long. And many of them have no interest in reducing the prison population.

“I am proud of the fact that we send more people to jail than other counties,” Aaron Negangard, the elected prosecutor in Dearborn County, said last year. “That’s how we keep it safe here.”

He added in an interview: “My constituents are the people who decide whether I keep doing my job. The governor can’t make me. The legislature can’t make me.”

Posted by Marcia Oddi on Friday, September 02, 2016
Posted to Indiana Government

Thursday, September 01, 2016

Law - Kentucky Ass't AG, an open records expert, resigns after talking to a journalist without permission

A brief AP story at 89.3 WFPL reports:

A longtime assistant attorney general says she has retired after getting reprimanded for talking to a journalist without permission.

Amye Bensenhaver told Kentucky Today that she made her decision to retire on Wednesday “under considerable duress” after being reprimanded in July. * * *

Bensenhaver is widely respected as an authority on open records and open meetings laws in Kentucky. She has written about 2,000 open records and open meetings opinions in the last 25 years.

Some quotes from the much longer story, with photo, in Kentucky Today, reported by Roger Alford:
FRANKFORT, Ky. – Assistant Attorney General Amye Bensenhaver has retired “under considerable duress” after being reprimanded for speaking to a journalist without permission, creating yet another public relations issue for a government agency that has had more than its share in recent months.

For a quarter century, Bensenhaver had been the point person for journalists, private citizens and public agencies at odds over whether government records should be released or whether government meetings should be open to the public.

Widely respected as one of Kentucky’s top authorities on open records and open meetings laws, Bensenhaver’s retirement was effective on Wednesday.

“I came to this decision under considerable duress,” Bensenhaver said in her letter of resignation to Attorney General Andy Beshear. “It is clear to me I cannot survive, much less thrive, in the current office climate, and I have similar concerns about the open records/meetings laws.” * * *

In the reprimand, Bensenhaver was accused of telling the journalist, John Nelson, the former executive editor of The Advocate-Messenger in Danville, that the attorney general’s website provides less access to open records and open meetings materials than in the past. However, Nelson said Bensenhaver didn’t tell him that.

Nelson said he noticed the changes to the website himself and included the observation in a feature article he wrote for the Kentucky Press Association commemorating the 40th anniversary of Kentucky’s open records law.

“It was pretty ironic that the state office in charge of government transparency was acting that way,” Nelson said. “I was not one bit happy that I was having this back and forth with them just because she talked to me about a very innocent subject. She said nothing wrong. She said nothing that they should be concerned about.” * * *

Major disputes over government transparency have ended up on Bensenhaver’s desk over two-and-a-half decades. She has personally written as many 2,000 open records and open meetings opinions, which have the force of law unless overturned by a circuit court.

In the reprimand, Buckner also criticized Bensenhaver for refusing to sign her name to an open records decision with which she disagreed, and, two other instances, for “editing” opinions after they had been approved by her supervisors. Those edits, Bensenhaver pointed out, involved removing a footnote that was factually incorrect and tweaking another footnote that was incorrect.

Buckner also wrote that, by speaking to the journalist and not letting supervisors know about it, Bensenhaver had “severely damaged” her credibility.

Posted by Marcia Oddi on Thursday, September 01, 2016
Posted to General Law Related

Courts - It isn't just Ferguson where court costs ensnare defendants

From the NY Times today, a story by Erik Eckholm headed "Court Costs Entrap Nonwhite, Poor Juvenile Offenders." A few quotes from the lengthy story:

The ways that fines and fees can entrap low-income people in the adult courts have received enormous attention in the past year or two. But the systematic imposition of costs on juvenile offenders, with equally pernicious effects on the poorest of them, is far less known. * * *

Fines, fees and restitution mandates are levied on juvenile offenders to varying degrees in every state, a new national survey of these practices has found. The effects are greatest on the poor and racial minorities, creating a two-tiered system of justice, according to the report, published by the Juvenile Law Center, a legal aid and advocacy group in Philadelphia.

In juvenile systems intended to help wayward youths go straight, the study found, these costs are often counterproductive, drawing young people, especially poor minorities, ever deeper into the maze of criminal courts and straining already-fragile families.

These measures are intended to help recoup public costs, make offenders feel accountable and repay crime victims for losses, but in practice they often do not meet these goals, researchers say. “Asking people to pay what they don’t have doesn’t help anyone,” said Jessica Feierman, an associate director of the law center and the chief author of the report.

In some places, offenders may be offered a chance to enter an after-school program instead of being formally charged — but only if they can pay a program fee, the report found. So, instead, they miss the chance for help and gain a criminal record.

If they cannot pay fees, impoverished offenders may, like Dequan, spend extra months and years on probation. In some cases, they may even be incarcerated longer because they cannot pay the daily fee for a GPS ankle bracelet.

Here is the index page to the report cited in the NY Times story, Debtors' Prison for Kids: The High Cost of Fines and Fees in the Juvenile Justice System." Indiana is one of the states surveyed.

Posted by Marcia Oddi on Thursday, September 01, 2016
Posted to Courts in general

Ind. Decisions - Supreme Court: expungement statute does not include civil forfeiture records

In D.A. v. State of Indiana, an 8-page, 5-0 opinion (Rucker, J., concurs in result), Chief Justice Rush writes:

Indiana’s comprehensive new expungement statutes allow the expungement of records from arrests, juvenile delinquency allegations, criminal charges, and criminal convictions. Here, D.A. successfully petitioned for the expungement of his criminal conviction records. He then filed a second petition asking for the expungement of civil forfeiture records. Because the trial court correctly held that Indiana’s expungement statutes do not reach civil forfeiture records, we affirm the denial of D.A.’s second expungement petition. * * *

Indiana’s comprehensive new expungement statutes provide second chances by broadly allowing records from arrests, juvenile delinquency allegations, criminal charges, and misdemeanor and felony convictions to be expunged. But the plain meaning of the relevant expungement statute does not include civil forfeiture records. Accordingly, we affirm the trial court.

Posted by Marcia Oddi on Thursday, September 01, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court disbars suspended Indianapolis attorney, Harold E. Bean

In In the Matter of: Harold E. Bean, a 3-page, 5-0 per curiam opinion, The Court writes:

We find that Respondent, Harold E. Bean, engaged in attorney misconduct. For this misconduct, we conclude that Respondent should be disbarred. * * *

Respondent was the elected Clerk-Treasurer of the Town of Warren Park. Over the span of several months in 2014, Respondent stole $20,800 from the Town by writing dozens of checks payable to himself. Respondent was charged with theft and official misconduct, both Class D felonies, and later pled guilty as charged. Respondent has been under an order of interim suspension since October 7, 2015, as a result of his felony convictions. See Matter of Bean, 53 N.E.3d 402 (Ind. 2015). * * *

As we have observed before, criminal action by an attorney in public office “strikes at the very heart of public trust in our institutions of government and the legal profession.” Matter of White, 54 N.E.3d 993, 994 (Ind. 2016) (quoting Matter of Gutman, 599 N.E.2d 604, 609 (Ind. 1992)). Such misconduct consistently has resulted in disbarment or a substantial period of suspension without automatic reinstatement. See, e.g., Matter of Philpot, 31 N.E.3d 468 (Ind. 2015) (following an interim suspension of over two years, suspending an elected county clerk convicted of theft and mail fraud for an additional four years without automatic reinstatement); Matter of Hughes, 640 N.E.2d 1065 (Ind. 1994) (disbarring a city court judge convicted of theft and official misconduct); Matter of Willardo, 493 N.E.2d 466 (Ind. 1986) (disbarring an elected coroner convicted of theft for fraudulently diverting county funds into his campaign account). * * *

The Court concludes that Respondent violated the Rules of Professional Conduct by committing crimes that reflect adversely on his honesty, trustworthiness, and fitness as a lawyer. Respondent already is under an order of interim suspension as well as a separate suspension order for nonpayment of dues. For Respondent’s professional misconduct, the Court disbars Respondent from the practice of law in this state, effective immediately.

Posted by Marcia Oddi on Thursday, September 01, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (3):

Steven A. Bedford v. State of Indiana (mem. dec.)


Jerald Clark, III v. State of Indiana (mem. dec.)


Eris Joshua Wallace v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, September 01, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Court says NJ may deny access to public records"

Salvador Rizzo reports in the NJ Asbury Park Press:

Government agencies in New Jersey may deny access to public records by saying they can “neither confirm nor deny” their existence, a state appeals court ruled Wednesday.

New Jersey is now the second state to adopt as law what one veteran media lawyer called “a broad and damaging secrecy tool” first used by the U.S. government during the Cold War to protect its national security interests.

The other state, Indiana, has authorized “neither confirm nor deny” responses through a statute, not a court ruling.

The three-judge panel of the Appellate Division ruled Wednesday against North Jersey Media Group, a division of Gannett that publishes The Record and other newspapers.

The New Jersey appeals court allowed what is known in the federal government as a “Glomar” response, which some agencies have used since the 1970s to block requests for public records submitted under the U.S. Freedom of Information Act.

The lengthy story does not identify the New Jersey decision, and does not cite any Indiana statute.

However, the ILB has an April 16, 2013 post, headed "Bill gives agency right to refuse to acknowledge a record's existence."

Posted by Marcia Oddi on Thursday, September 01, 2016
Posted to Indiana Government

Ind. Gov't. - "Indiana attorney general candidates pressed to explain themselves"

Maureen Hayden, CNHI State Reporter, reports today for the New Albany News & Tribune. The long story begins:

INDIANAPOLIS – The men running for attorney general face a tough challenge in a political season dominated by higher-profile races.

Republican Curtis Hill and Democrat Lorenzo Arrendondo spend much of their time explaining the job and trying to inspire people to care.

“It feels a little like ‘Horton Hears a Who,’” joked Hill, referring to the Dr. Seuss book about an elephant who discovers a tiny, overlooked planet. “It’s like we’re shouting, ‘We are here. We are here. We are here.’”

With most of the political oxygen sucked up by heated races for president, U.S. Senate and governor, Arrendondo said he also finds himself educating voters.

“Most people think we’re the lawyer for the governor,” he said. “That’s not it at all.”

Defining the job is enough of a concern that both candidates — each of whom brings deep legal experience to the race — have posted explanations of what the attorney general does on their campaign websites.

The attorney general is, indeed, the state’s chief legal officer who advises agencies, defends laws challenged in court and prosecutes on behalf of the state.

The person also oversees a team of 160 lawyers involved in duties related to consumer protection — from medical licensing to policing telemarketers.

As current Attorney General Greg Zoeller explains, the job is to help “protect the rights, freedoms and safety” of Hoosiers. Now in his second term, Zoeller has opted not to seek re-election. Arrendondo and Hill have been working to make their cases to the voters since being selected by their respective party’s delegates this spring. And each has the potential to make state history.

Hill, if elected, would be the first black Republican in the office – and only the third African-American in the job. He is a four-term prosecutor from Elkhart County.

Arrendondo, who spent 34 years as a trial judge in Lake County before retiring in 2010, would be the first Latino to be state attorney general.

Neither claim those identities as reason to vote for them. But their experience and biographies, they say, do inform their views.

There is much moreabout the two candidates in this story.

See also this ILB post from Aug. 16
, linking to WSBT 22 interviews.

Posted by Marcia Oddi on Thursday, September 01, 2016
Posted to Indiana Government

Ind. Law - NWI EDITORIAL: Prosecutors thumb noses at police videos law; Meanwhile, in Evansville...

The NWI Times had an editorial Aug. 30th:

The Indiana General Assembly appeared to strike a blow for open records earlier this year by passing a law granting public access to police body and dashboard camera videos.

It’s unfortunate, and untenable, that some Indiana prosecutors appear intent on thumbing their noses at the spirit of the law.

Just last month, the new law, Indiana House Enrolled Act 1019, took effect, deeming such videos open for review by individuals who have been taped and the general public. Certain conditions still allow police to withhold such videos in cases of sensitive, ongoing criminal investigations.

That same exemption exists for nearly all police and criminal records.

However, Indiana Prosecuting Attorneys Council Executive Director Dave Powell and a number of county prosecutors say they’re advising law enforcement not to release such videos, according to the Hoosier State Press Association, until all related investigations are complete, it has been decided no charges will be filed or after trial if charges are filed.

Those advocating against the spirit of what is now Hoosier state law appear to be issuing a blanket edict for police departments not to follow the law.

State law already allows for circumstances under which authorities can temporarily withhold such videos from being released.

But legal exemptions are meant as exceptions, not tools for prosecutors to abuse at their own whims.

The law was enacted to lift a veil from the performance of police in their daily work. Officers following laws and department policies in carrying out their duties should have nothing to fear.

Prosecutors who suggest blanket rejections of open records requests for such videos are failing in their most basic duty to uphold state law.

Meanwhile, the Evansville police are releasing some body cam footage, according to this story last evening by Jessie Higgins of the Courier & Press. Some quotes from the lengthy story, headed "Evansville police release body cam of alleged unfair treatment Michael Flemming":
Evansville Police on Wednesday released body cam footage of officers arresting a man who believes he was unfairly targeted.

The Courier & Press requested the footage of police arresting Michael Flemming in June on charges of resisting law enforcement during a traffic stop. The charges against Flemming were dismissed in July.

During the incident, Flemming was a passenger in a car pulled over for speeding near the corner of Garvin Avenue and Michigan Street. The driver did not have proof of insurance, so police had the car impounded. Flemming was arrested when he did not follow officers' instructions to get out of the car.

Flemming said he feared the arrest was made to intimidate and harass him. Last year, he was involved in an incident with a police officer’s son that remains unresolved.

The officer’s body cam footage released Wednesday shows the entire incident from two officers' perspectives.

See also this Aug. 18 ILB post on the Evansville police proposed fee for viewing camera footage.

Posted by Marcia Oddi on Thursday, September 01, 2016
Posted to Indiana Law

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

Updating this ILB post from yesterday, Matthew J. Anderson, ANDERSON, AGOSTINO & KELLER, P.C., South Bend, sends this note:

Marcia:

Interesting articles today about remonstrators being sued. In my opinion, I believe that those with an affected interest (i.e. adjoining landowners or those with a specific injury) would be proper parties to be joined under Trial Rule 19(A). I am not sure why people who simply spoke up would be sued, but I have my suspicions (see below). The statute does not require them to be named as Defendants nor would the remonstrators have standing to file suit themselves if they were not adjoining landowners or had some specific harm. See, Benton Cty. Remonstrators v. Bd. of Zoning Appeals of Benton Cty., 905 N.E.2d 1090 (Ind. Ct. App. 2009).

On the flip side, I have been in the position of appealing a land use variance from a local BZA and one of the objections raised by the county in the case was that not everyone was properly joined in the case. So, I cannot fault the company for using an abundance of caution in order to appeal the decision.

The remedy here would be for the statute to clearly set forth who would be necessary parties to an appeal of an administrative decision because I am not convinced that it does.

Posted by Marcia Oddi on Thursday, September 01, 2016
Posted to Indiana Courts

Ind. Decisions - "Supreme Court hears arguments in officer's lawsuit against Indy gun seller"

Yesterday's oral argument in KS&E Sports, et al. v. Dwayne H. Runnels (watch the oral argument here) is the subject of a story today in the Indianapolis Star, reported by Madeline Buckley. Some quotes:

The question of whether a gun seller can be held liable for criminal misuse of a gun — when the seller has acted illegally — is at the center of a lawsuit filed by [Dwayne] Runnels in 2013. Indiana law gives immunity in civil cases to sellers and manufacturers when a gun is used to commit a crime by a third party. But the law doesn't spell out whether the immunity protects sellers if they illegally sell a gun to a person who uses it to commit a crime.

The case centers on civil liability and whether companies should have to pay out damages. A gun seller who is proved to have made an illegal sale can face criminal punishment.

The Indiana Supreme Court on Wednesday heard oral arguments in the case after the Indiana Court of Appeals in March ruled that the sporting goods store is not immune from a lawsuit in this case because of the allegation that the store was complicit in an illegal straw sale. In other words, the court said that Runnels should be able to proceed with the lawsuit to try to prove his claims.

Attorneys for KS&E Sports in 2014 asked a Marion Superior Court judge to throw out the case, arguing that the state's immunity statute means the sporting goods store was not responsible for Martin's actions when he shot Runnels. The judge, though, ruled in favor of Runnels, allowing the suit to go forward. The Appeals Court ultimately agreed.

Now, the state's highest court will soon make a decision that could have implications for such cases. If the court rules in favor of Runnels, it could highlight an exception to Indiana's immunity statute that could make a gun seller liable for civil damages if a plaintiff can prove the seller acted illegally. If the court rules against Runnels, it could strengthen the immunity law, making it more difficult to successfully sue a seller or manufacturer.

ILB: The story ends with somewhat confusing discussion of a Gary gun case, which today's story says "remains pending." But see this ILB post from May 4, 2015, and this one from April 16, 2015.

The briefs in this case are available for download via the appellate docket (49S02-1606-CT-00349).

Posted by Marcia Oddi on Thursday, September 01, 2016
Posted to Indiana Decisions