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Monday, October 31, 2016

Ind. Law - "An announcement about Indiana Tech Law School" [Updated]

Supplementing this earlier ILB post, here is a letter sent to Indiana Tech grads:

Dear Warrior Alumni:

I write today to share the news that Indiana Tech Law School will be closing at the end of the 2016-17 academic year. The Indiana Tech Board of Trustees recently voted unanimously to cease operation of the law school effective June 30, 2017.

Our first concern during this difficult time is for our law school students. We will be working hard on behalf of each of them to ensure that the process for transferring, for continuing their legal education, and ultimately earning their law degree takes place with as little disruption as possible.

The faculty and staff at the law school are to be commended for the efforts they have put forth in working with our law students. Despite their many positive achievements, we are not experiencing or projecting enough of a corresponding increase in demand by prospective students for the law school to remain viable into the future.

I know that many of you will have questions related to this decision. To assist in answering them, I have attached a Q&A document with more details on the decision and the process going forward, which you can find linked at the end of this message.

My thanks to all of you for your support of Indiana Tech and our students throughout the years. Though this is not the ending we wished for the law school, our university as a whole continues to thrive and grow. Enrollments at our Fort Wayne campus and in our College of Professional Studies programs for adult learners online and in our regional locations continue to grow steadily. Our financial health remains strong, and our students will continue to receive an excellent education at Indiana Tech far into the future.

Best regards,

Arthur E. Snyder
President

[Updated] It is interesting to review this long list of ILB posts on Indiana Tech Law School through the years, beginning in 2011. It contains little that is encouraging ...

Posted by Marcia Oddi on Monday, October 31, 2016
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (2):

In Lance E. Brown v. State of Indiana, a 13-page opinion, Judge Mathias writes:

Lance E. Brown (“Brown”) was convicted in Wayne Superior Court of battering a public safety officer, a Level 6 felony, by resisting the entry into his Richmond home by two officers (“the Officers”) of the Richmond Police Department (“RPD”). Brown appeals his conviction as unsupported by evidence sufficient to rebut his affirmative defenses of self-defense and defense of his dwelling, and challenges the trial court’s interpretation of applicable statutes. * * *

Under the totality of these specific facts and circumstances, we hold that the Officers’ conduct was reasonable and thus lawful. Accordingly, there is no need to reach the question, as the trial court did, of whether Brown acted with reasonable force in self-defense. Affirmed.

In Justin S. Johnson v. State of Indiana, a 15-page opinion, Judge Brown writes:
Justin S. Johnson appeals the trial court’s order revoking his community corrections placement and ordering him to serve the remainder of his executed sentence in prison. Johnson raises one issue which we revise and restate as whether the trial court abused its discretion in revoking his placement in community corrections. We reverse and remand. * * *

The evidence supports the trial court’s determination that Johnson violated the term of his community corrections placement that he not leave his apartment and its decision to revoke the placement. However, under the circumstances reflected in the record, including the level of Johnson’s functioning and his resources, his previous successful placement on work release, the nature of the violation, and the severity of the court’s sentence, we conclude that the trial court abused its discretion in finding that Johnson’s violation warranted serving the entirety of the remaining portion of his executed sentence in the DOC. * * * Accordingly, we remand to the trial court with instructions to enter an order that Johnson be placed on work release for the remaining portion of his executed sentence.

NFP civil decisions today (2):

In the Matter of P.G. (Minor Child), Child in Need of Services J.G. (Father), P.G. (Guardian), and M.G. (Guardian) v. The Indiana Department of Child Services (mem. dec.)

In the Termination of the Parent-Child Relationship of: J.P. and R.P. (Minor Children), and, N.P. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (5):

Juan Reyes v. State of Indiana (mem. dec.)

Jordon P. Stroud v. State of Indiana (mem. dec.)

Fernando Trujillo v. State of Indiana (mem. dec.)

Erica Lupkin v. State of Indiana (mem. dec.)

Janine M. Jackson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, October 31, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Updating: Four COA judges up for retention next week, but you may only vote for two of them

Supplementing this ILB post from this morning, here is the ILB post from 10 years ago, Oct. 15, 2006, which reported:

Justice Frank Sullivan Jr. of the Indiana Supreme Court and Chief Judge James S. Kirsch, Judge Terry A. Crone, Judge Ezra H. Friedlander, Judge Edward W. Najam Jr., and Judge Patricia A. Riley of the Indiana Court of Appeals are up for a "yes-no" vote on whether they should hold their offices for another 10 years.
Two of the 6 have retired, but Judges Kirsch, Crone, Najam and Riley are on the ballot for another 10-year term.

Posted by Marcia Oddi on Monday, October 31, 2016
Posted to Indiana Courts

Ind. Law - "Indiana Tech Law School to close next June; losses at $20 million"

From the Fort Wayne Journal Sentinel, this long story just posted by Kevin Leniniger begins:

ndiana Tech's law school, which opened in 2013 with far fewer students than expected, failed in its first attempt at accreditation and graduated its first students this year — only one of whom passed the state bar examination — will close, The News-Sentinel has learned.

The school on Maumee Avenue just east of downtown built its $15 million law building to accommodate up to 350 students and expected 100 in its initial class but attracted 28. At the time, some critics doubted the need for the school, saying first-year law school enrollments had dropped 28 percent since 2010 to their lowest level since 1973.

Indiana Tech Arthur Snyder said the university has lost $20 million on the law school and, given projected enrollments, expected the deficit to continue. “This was an extremely difficult decision for all involved," Snyder said. "Over the course of time it has become apparent that the significant decline in law school applicants nationwide represents a long term shift in the legal education field, not a short-term one. Specific to Indiana Tech, the assessment of the Board and our senior leadership team is that for the foreseeable future the law school will not be able to attract students in sufficient numbers for the school to remain viable.”

Indiana Tech Law School currently has a total of 71 students, and Snyder said they will have the option to complete the year, with those in their third and final year having the ability to graduate from the law school in May. First and second year students will have the option to transfer to other law schools at the start of the January 2017 semester, or to complete the year at Indiana Tech Law School and then transfer for the start of the fall 2017 semester.

Posted by Marcia Oddi on Monday, October 31, 2016
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending Oct. 28, 2016

Here is the Clerk's transfer list for the week ending Friday, Oct. 28, 2016. It is one page (and 2 cases) long.

Two transfers were granted last week, both with opinions:

Posted by Marcia Oddi on Monday, October 31, 2016
Posted to Indiana Transfer Lists

Ind. Courts - Four COA judges up for retention next week, but you may only vote for two of them

Quoting from this ILB post from July 18th:

Here are the appellate judges on the retention ballot in 2016:
  • Judge Terry A. Crone, Court of Appeals of Indiana – Third District
  • Judge James S. Kirsch, Court of Appeals of Indiana – Second District
  • Judge Edward W. Najam, Jr., Court of Appeals of Indiana – First District
  • Judge Patricia A. Riley, Court of Appeals of Indiana – Fourth District
Dan Carden, in an Oct. 23rd NWI Times story, had a little background on each judge:
Judge Patricia Riley, a Rensselaer native appointed to the court in 1994 by then-Gov. Evan Bayh and retained by voters in 1996 and 2006.

Judge Terry Crone, a South Bend native appointed in 2004 by Democratic Gov. Joe Kernan and retained by voters in 2006.

Judge Edward Najam Jr., of Bloomington, a 1992 Bayh appointee retained by voters in 1996 and 2006.

Judge James Kirsch, of Indianapolis, a 1994 Bayh appointee retained by voters in 1996 and 2006.

See the Courts' page, Judicial Retention 2016, for more information.

So why can you only vote for two of them? Because when the Court of Appeals was originally established, the statute divided the state into three judicial districts. But, as this COA page explains:

The 15 members of the Court of Appeals of Indiana [now] represent five state districts:
  • Three members of the Court must come from the 1st District, encompassing the southern third of the state;
  • three from the 2nd District, the middle third; and
  • three from the 3rd District, the northern third of Indiana.
Judges named from these districts stand for retention only in their districts.
  • In 1978, a 4th District was created, consisting of three judges, one from each of the first three districts.
  • Likewise, in 1991, a 5th District was added, also with judges from each of the first three districts.
Judges representing the 4th and 5th districts stand for retention statewide.

Posted by Marcia Oddi on Monday, October 31, 2016
Posted to Indiana Courts

Ind. Courts - Tax Court hearing Monroe/CVS "Big Box/Dark Box" Appeal this Morning

The appeal to the Indiana Tax Court in CVS Corporation v. Monroe County Assessor (49T10-1512-TA-00032) is being heard by the Indiana Tax Court this morning at 10:00 AM in Room 413. According to the court calendar:

The Assessor challenges whether, in reducing the taxpayer's assessment, the Indiana Board of Tax Review failed to analyze and interpret "True Tax Value" on the basis of actual property wealth.
Here is the docket in the case.

Ernest Rollins of the Bloomington Herald-Times has a long $$ story today headed "County fighting CVS tax appeal." It begins:

The Monroe County Board of Commissioners has filed an amicus brief with the Indiana Tax Court supporting a lower board’s decision not to change assessments on a local CVS store.

The CVS Corp. petitioned the Indiana Tax Court to reverse the Indiana Board of Tax Review’s determination in a case in which it appealed the 2011-13 assessments of its Ellettsville store. County Attorney Margie Rice said the brief allows the county to give the court a local perspective on the importance of upholding the tax board’s decision while the attorney general, who stepped in to defend the county in this particular case, focuses on the case’s nuts and bolts.

The brief filed states assessors use local data to determine the market value-in-use of a property during the assessment process.

“Unfortunately, once the appeal process reaches the state, a disconnect oftentimes exists between the two processes,” the commissioners write. “The value of property located in, say, Monroe County is valued at the state appeal level by data from other counties, other states, or even aggregate data with the most basic datasets unknown.”

County Assessor Judy Sharp said her hope is that the tax court will put the matter to bed once and for all. She added that what the county is facing is not something only Monroe or even Indiana counties are dealing with. According to the amicus brief, national retail giants such as Meijer and CVS are aggressively attempting to reduce the property taxes they have to pay, even in states that do not use the market value-in-use standard.

“These big boxes are essentially making whatever argument they have to make in whatever jurisdiction that they go into,” Rice said. “It is a means to an end for them, and the end is lower taxes, and you’re getting played by them.”

These attempts, if successful, can mean a shift of property tax burden to residential properties while shortchanging basic government services such as roads and public safety, Rice said.

However, in its petition, CVS argues the decision should be reversed on the grounds that the board acted contrary to law by ordering no change rather than having the assessment revert to the prior year’s and “abused its discretion, and made a final determination that was not supported by substantial evidence, by reversing its position on matters of law in a case that is substantially the same as two prior cases that it decided.”

There is much more in the $$ story. The briefs are available for download via the docket.

Posted by Marcia Oddi on Monday, October 31, 2016
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 10/31/16):

Thursday, November 3

Next week's oral arguments before the Supreme Court (week of 11/7/16):

Webcasts of Supreme Court oral arguments are available here.




This week's oral arguments before the Court of Appeals (week of 10/31/16):

Thursday, November 3

Next week's oral arguments before the Court of Appeals (week of 11/7/16):

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, October 31, 2016
Posted to Upcoming Oral Arguments

Sunday, October 30, 2016

Law- "Groped at a Party by a Colleague" and "Speaking Up About Coarse Language"

Those are the topics of the two questions addressed this week by the columnist Rob Walker, who writes "The Workologist" column in the Sunday New York Times. Some quotes from the questions:

This year’s election news has brought up a painful memory. Several years ago, a group of my work colleagues went to a bar after our company holiday party. We were swapping stories while standing in a tight circle when I suddenly realized, with horror, that a male colleague had his hand up my dress and was grabbing my private parts while pretending to listen to another colleague. * * *

I’m a director of business development in a company serving the corporate market. Since joining several years ago, I have witnessed sexism like I’d never seen before. In my first staff meeting, at which the owner was present, two male colleagues repeated an offensive and sexually charged word in their comments so frequently it was apparent it was for my benefit. One of these men also started a 10-minute conversation about his penis. Situations like this have continued to occur, such as using coarse language in reference to female (but not male) clients.

ILB: Read the full questions, and the answers, for yourself.

IMHO, the Workologist doesn't suggest much that a woman can do, observing that "victims may fear stigmatization, retaliation or additional trauma," and that it may be useful to take notes about what happened and who was there in order to establish "some sort of contemporaneous record." As for the second incident, the Workologist writes:

You could also go directly to the boss and make your concerns explicit; retaliation is illegal, but it certainly happens .... That’s one reason that most people who experience such environments are more likely to seek a new job than risk a confrontation that could spiral into a legal claim.
I think this column indirectly goes a long way toward answering the questions some have posed about why the women allegedly groped by Donald Trump didn't say or do anything at the time. Even today, it appears little has changed.

Posted by Marcia Oddi on Sunday, October 30, 2016
Posted to General Law Related

Friday, October 28, 2016

Ind. Decisions - More on: Original 25 year sentence reduced for Kosciusko County teen who killed at age 12

Supplementing this ILB post from earlier today, the Indianapolis Star has now posted an updated story by Robert King on the Gingerich sentencing. A few quotes from the lengthy story:

Based on Heuer’s sentence, Gingerich could spend as little as three months at the Correctional Industrial Facility, an adult jail in Pendleton. Even then, he would be in a program for inmates with disabilities. Gingerich has Crohn’s disease, an incurable illness that causes inflammation in the lining of the digestive tract. He’s had multiple surgeries, portions of his colon have been removed and he has worn a colostomy bag.

After the prison time, Gingerich would join a re-entry program in Allen County, where he would live with his mother for a year under what essentially is house arrest, monitored via an ankle bracelet.

Then Gingerich would be transferred to the watchful eye of a community corrections program through April 2020. While he potentially could live elsewhere at that point, he’s most likely to remain with his mother and remain under electronic monitoring, Kosciusko County Prosecutor Dan Hampton said.

Beyond 2020, Gingerich would face 10 years of probation.

“There’s going to be restraints on his liberty,” said Monica Foster, Gingerich’s attorney.

In court, and speaking to the media afterward, Foster argued that Gingerich is worthy of being returned to the outside world. At the Pendleton Juvenile Correctional Facility, where he’s been housed for 5½ years, Gingerich earned a high school diploma, held a job, served as a mentor to other offenders and went through what Foster called “moral recognition therapy.” The latter is group counseling that she said attempts to help young offenders consider moral implications of the choices they make. * * *

Foster, who has defended death row inmates, took up Gingerich’s cause at no cost and, in 2013, won a new trial for him. Gingerich pleaded guilty again, receiving the same 30-year sentence, but this time under the light of a law passed that year which gives judges greater flexibility in sentencing young offenders. Enacted in the wake of Gingerich’s steep sentence as a 12-year-old, it was dubbed “Paul’s Law.”

At least 10 juvenile offenders have had their sentences reviewed in light of Paul’s Law. But Heuer, a Whitley County judge who took the case after Gingerich was awarded the retrial, said this was his first case under the law. He admitted to feeling as if he were in uncharted territory.

Posted by Marcia Oddi on Friday, October 28, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Original 25 year sentence reduced for Kosciusko County teen who killed at age 12

Readers will recall the case of Paul Henry Gingerich, sentenced as adult at 12. The first, and still worth reading, ILB post on the story was in January of 2011, and quoted from a WSJ story. A long, long list of ILB posts followed. The most recent, until today, is this April 25, 2016 post headed "Paul Henry Gingerich, sentenced as adult at 12, has hearing upon turning 18."

This afternoon the South Bend Tribune has a brief, unattributed, preliminary story that reports:

WARSAW — A special judge on Friday reduced the sentence of a Kosciusko County teenager who killed a man at age 12.

Paul Gingerich, now 18, admitted to helping his friend Colt Lundy, then 15, kill Lundy's stepfather, Phil Danner, at a home near Lake Wawasee in 2010.

Gingerich was sentenced to 25 years in prison after pleading guilty to conspiracy to commit murder. His first conviction was reversed by the state Court of Appeals, which found a judge acted too quickly in allowing Gingerich to be tried in adult court.

In 2013, Gingerich again pleaded guilty and got the same 25-year sentence, but with the possibility of avoiding prison under a new state law that offered new sentencing options for young offenders.

Special Judge James Heuer on Friday ordered that Gingerich serve 300 days in adult prison, however, that time could be reduced to 90 days with a combination of good behavior and time served credits. Gingerich will also serve a year on home detention and 10 years of probation.

The sentence reduction comes as a result of a law known as "Paul's Law," which allows children convicted of serious crimes in adult court to serve their sentence in a juvenile facility until age 18. After they turn 18, the court must decide how the person will serve the remainder of the sentence.

Alyssa Ivansonof WANE.com writes (plus video):
WARSAW, Ind. (WANE) – A northern Indiana teenager who was 12 years old when he helped kill his friend’s stepfather will be released from prison within a year, a judge ruled Friday.

During a hearing inside the Kosciusko County Courthouse on Friday, Paul Gingerich, now 18 years old, received a modified sentence. His 30-year sentence will now have 20 years served and ten years suspended. That’s different from the previous 30-year sentence of 25 years served and five years suspended he received for pleading guilty to conspiracy to commit murder in the fatal shooting of Phillip Danner, 49.

For the last six and a half years, Gingerich has been in a juvenile correctional facility. After turning 18 in February, he was eligible to be considered for alternative sentences under “Paul’s Law,” which was passed in 2013 and named after him.

Friday, Judge James Heuer ruled that Gingerich will go to an adult prison for 300 days, but because Gingerich will be in a Community Transition Program there, that will be reduced by 120 days. The remaining 180 days are eligible for the “earned good time credit” which allows an offender to take a day off their sentence for every day of good behavior. That means Gingerich could be released from prison in 90 days if he follows the programs.

Once released from the adult prison, Gingerich will be assigned to the Allen County re-entry program for at least one year and then will transition into a less-strict community corrections program and won’t be released earlier than April 28, 2020. The Kosciusko County prosecutor said all of that time will be served on home detention with an ankle bracelet. Once released from the community corrections programs, Gingerich will be on probation with the Kosciusko County Probation Department for ten years.

Posted by Marcia Oddi on Friday, October 28, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Confidentiality and e-filing at the trial and appellate levels"

For those of you who (like the ILB), may not have access to Facebook, here is a printable copy of the article, "Confidentiality and e-filing at the trial and appellate levels," by Kyle C. Gillaspie and Stephanie C. Lin, staff attorneys at the Indiana Court of Appeals, that appears in the September 2016 issue of the ISBA's publication, Res Gestae.

@incourts has called this article: "A must read for attorneys, article about e-filing documents with confidential info."

Posted by Marcia Oddi on Friday, October 28, 2016
Posted to E-filing | Indiana Courts

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

For publication opinions today (1):

In Jennifer R. Quinn v. Daniel P. Quinn, a 24-page opinion, Judge Pyle writes:

In this contentious dissolution action, Jennifer R. Quinn (“Mother”) argues that the trial court erred in: (1) awarding custody of the parties’ son to Daniel P. Quinn (“Father”); (2) calculating child support; and (3) distributing the parties’ property. Concluding that the trial court did not abuse its discretion in awarding custody of the parties’ son to Father or in calculating child support, we affirm those portions of the dissolution order. However, we find that the trial court abused its discretion in distributing the parties’ property because it did not include the value of all of the parties’ assets in the marital pot. We therefore affirm in part, reverse in part, and remand with instructions for the trial court to redistribute the parties’ property without the necessity of a hearing. * * *

Accordingly, the trial court erred in failing to include all property in the marital pot. We therefore reverse that portion of the trial court’s order valuing the marital estate and remand with instructions for the trial court to: (1) include the total value of Father’s pension and the marital residence in the marital pot; (2) redistribute the assets and debts as deemed appropriate; and (3) enter findings that either an equal division of the pension is just and reasonable under the circumstances or, alternatively, that the presumption of equal division has been rebutted by evidence which could include that a portion of the pension was earned by Father before the parties’ marriage, and thus an equal division would not be just and reasonable. The trial court is instructed to recalculate the division of marital assets accordingly without the necessity of a hearing. See Kendrick v. Kendrick, 44 N.E.3d 721, 729 (Ind. Ct. App. 2015), trans. denied, (remanding the case to the trial court with instructions to include in the marital pot that portion of the husband’s pension earned before the marriage without the necessity of a hearing).

Affirmed in part, reversed in part, and remanded.

NFP civil decisions today (1):

Shravan Vudumu v. Namratha Meesala (mem. dec.)

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on Friday, October 28, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "I-69 bond rating drops for 3rd time this year amid construction disputes"

Some quotes from this story in the $$ Bloomington Herald-Times this morning:

Construction delays along the Interstate 69 segment that will run from Bloomington to Martinsville have prompted a New York-based company to once again downgrade the status of bonds issued for that project, the third downgrade reported this year.

Fitch Ratings said Wednesday it's lowered from BB to B the status of bonds issued on behalf of the segment's private developer, I-69 Development Partners LLC. * * *

The state finance authority sold almost $250 million worth of tax-exempt private activity bonds on behalf of I-69 Development Partners in July 2014 to help finance the $325 million project.

Those bonds were originally given a BBB or investment-grade rating. That rating was lowered to BBB- in April of this year, when the expected completion date was extended by about eight months due to delays in obtaining permits. Further delays in meeting a revised schedule, along with default notices issued by the developer, resulted in an August downgrade to BB. Similar issues are behind the most recent additional downgrade to B.

The downgrade means anyone who bought the bonds when they were originally sold would likely have a difficult time selling them, at least in the current market. In August, Scott Zuchorski, senior director with Fitch, told The Herald-Times that a BB rating from Fitch is below investment grade, or junk. The current B rating is a step below that.

Posted by Marcia Oddi on Friday, October 28, 2016
Posted to Indiana Government

Ind. Gov't. - "Voter Group Wants Documents Unsealed in Indiana Search"

Updating this long ILB post compiling some of the earlier stories on the ISP state-wide voter fraud investigation, last evening Rick Callahan of the AP reported:

A voter mobilization facing an investigation into possible voter registration fraud asked a court Thursday to unseal documents from an Indiana State Police search of its offices, saying it "has been publicly demonized by the highest state officials in Indiana."

Patriot Majority USA's attorneys asked a judge to either unseal a search warrant affidavit in the Oct. 4 search of its Indianapolis offices or hold an immediate hearing on its request.

State Police announced Sept. 15 that it had begun investigating in August whether some voter registration applications submitted by Patriot Majority contained elements of fraud, including possible forged signatures. Patriot Majority has said some applications it submitted to county clerk's offices were missing information, but none were fraudulent, and the group had flagged applications it knew were incomplete.

In its motion filed in Marion County Superior Court, Patriot Majority cites comments by Gov. Mike Pence, who's Republican presidential nominee Donald Trump's running mate; Republican Secretary of State Connie Lawson; Pence-appointed State Police Superintendent Doug Carter, among others.

"It would be highly unjust to not release the Affidavit when public officials have refused to provide the facts supporting their reckless conclusory proclamations," the motion states.

The issue has been highly politicized, with Trump and Pence raising the possibility of a "rigged" election without offering proof. Attorneys for Patriot Majority have asked the U.S. Department of Justice's Civil Rights division to look into whether the State Police investigation is an attempt to suppress the votes of black residents. * * *

Linda Pence, an Indianapolis attorney who represents Patriot Majority, said Thursday's motion "speaks for itself."

"We hope and expect that this matter will now be handled in a nonpartisan and professional manner moving forward," she said.

Posted by Marcia Oddi on Friday, October 28, 2016
Posted to Indiana Government

Ind. Courts - Supreme Court heard case in Muncie on Thursday

In the rare road trip (the last one was to Corydon), Stephanie Wiechmann of IPB news reports, in a story with audio:

MUNCIE -The Indiana Supreme Court gaveled into session at Ball State University on Thursday, hearing a sports injury case in front of an auditorium full of high school students. As Indiana Public Broadcasting’s Stephanie Wiechmann reports, justices say they hear a few cases out of the courtroom each year to show the public what they do.

The case, Tresa Megenity v David Dunn, involves an injury sustained in a 2012 New Albany karate class. To decide whether precedent applies to the case, judges are essentially being asked to decide if one karate kick is like another karate kick – and whether the kick was accidental or reckless. That led to asking lawyers for both sides to compare and contrast sports situations.

The Court's webcast of the entire oral argument is not currently available, but check back later for it here.

Posted by Marcia Oddi on Friday, October 28, 2016
Posted to Indiana Courts

Thursday, October 27, 2016

Law - More on "In ballot selfie battle, free speech beats fear of voter fraud"

This ILB post this morning had this question at its end:

This Reuters map of the United States identifies where each state stands on ballot selfies. Indiana is labeled "Yes with exceptions", but gives no indication of what the exceptions are... Anyone know?
The ILB received several answers, all pointing to p. 15, footnote 7 in this 20-page, Oct. 19, 2015 ruling granting plaintiff's motion for a preliminary injunction, issued by SD Ind. Judge Sarah Evans Barker in Indiana Civil Liberties Union v. Indiana Sec. of State.

Footnote 7:

In striking down this portion of Indiana’s election laws, we do not mean to suggest that the State must sit idly by while its voters are coerced or bribed. Indiana has a bribery statute making vote buying and selling illegal, see Ind. Code § 35-44.1-1-1(a)(9), in addition to laws making it illegal for Indiana voters to show their ballots to another person after they are marked or to do “anything to enable any other person to see or know for what ticket, candidates, or public questions the voter has voted.” Ind. Code §§ 3-14-2-16, 18. We presume that law enforcement officials are ready and able to enforce these laws if and when violations are suspected.
Some thoughts from readers:
Just re-read Barker’s ruling. In fn. 7, p. 15, she mentions IC 3-14-2-16 and -18 as criminal statutes making it illegal for an Indiana voter to show a marked ballot to another person, and she remarked that nothing in her ruling should be read “to suggest that the State must sit idly by while its voters are coerced or bribed.” As I read that footnote, those two sections of IC 3-14-2 technically remain enforceable but probably only if accompanied by evidence of an intent to coerce another person or of a scheme to bribe another person to vote a certain way.

Attorney Bill Groth, Indianapolis

Another attorney reader, from Evansville, concluded differently:
[I]t appears to me that if the published selfie includes the voter’s marked ballot, then the voter could be subjected to felony criminal charges. This is somewhat of a concern due to media articles and reports that (mis)inform Hoosier voters that it is fully legal to post ballot selfies without limitation.
Attorney Gavin Rose, ACLU of Indiana, wrote:
I attach our briefing on preliminary injunction, and I’ll direct you to fn. 2 on pages 2-3 of the initial brief and fn. 6 on page 9 of the reply brief, which deal with this issue. I don’t read Judge Barker’s decision to be inconsistent with our position, for if the statutes you reference apply to pictures of the ballot then they are unconstitutional for the same reasons she found.

Posted by Marcia Oddi on Thursday, October 27, 2016
Posted to Indiana Law

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

In Chance Kelham v. CSX Transportation, Inc. (ND Ind., Rodovich, Magistrate Judge), a 6-page opinion, Judge Posner writes:

The plaintiff, Chance Kelham, a railroad engineer, sued the railroad that employed him, ac‐ cusing it of having negligently caused him to be injured, for which he seeks compensation under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51 et seq. The case was tried to a jury, which exonerated the railroad, precipitating this appeal. * * *

It was not unreasonable for a jury to find that Kelham had fabricated the claim that he was injured by the lurch, as unless the railroad bought his story it would not be required by the Federal Employers’ Liability Act to compensate Kelham for the cost of the surgery that he needed to repair the consequences of pre‐accident ailments for which the railroad was not responsible. The jury was entitled to conclude that the negligence of the railroad that resulted in the collision and ensuing lurch had no causal relation to his injuries—that, to repeat, the injuries were the product of ailments that preceded the lurch.     AFFIRMED

Posted by Marcia Oddi on Thursday, October 27, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In In the Matter of the Commitment of J.M., J.M. v. Northeastern Center, Inc., a 7-page opinion, Judge Najam writes:

J.M. appeals her involuntary mental health commitment. Though the issue raised on appeal is moot, we address J.M.’s argument because it is a matter of great public importance. On the merits of her argument, we hold that there was sufficient evidence to support her temporary commitment. As such, we affirm. * * *

J.M. appeals her involuntary commitment at Northeastern. However, we first acknowledge Northeastern’s response that, as J.M.’s ninety-day commitment has expired, her appeal is moot. * * *

J.M. asserts that Northeastern failed to demonstrate that she is dangerous under Indiana Code Section 12-26-2-5(e)(1). “Dangerous” as used in that statute “means a condition in which an individual as a result of a mental illness[] presents a substantial risk that the individual will harm the individual or others.” I.C. § 12-7-2-53. J.M. contends that the evidence on this issue is insufficient because

[a]t no point did any witness describe the actions that led up to J.M. being placed in restraints or why that option was selected by the staff at the Northeastern Center. . . . There was no discussion of any actions of violence or threats of violence or any other actions that might result in harm to J.M. or others.
Appellant’s Br. at 9.

We cannot agree with J.M.’s assessment of the record. A reasonable fact-finder could conclude from Dr. Carder’s testimony that J.M., as a result of her mental illness, presented a substantial risk of harm to herself or others.

NFP civil decisions today (0):

NFP criminal decisions today (1):

Kenneth D. Alvies v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, October 27, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Contested Madison County Circuit Court judge race draws attention"

A story today by Stuart Hirsch in the Anderson Herald Bulletin begins:

ANDERSON — For the first time in recent memory, a sitting judge in Madison County has an opponent in the 2016 general election.

And its a doozy.

Republican Mark Dudley, 50, the hand-picked successor of retired Circuit Court Division 6 Judge Dennis Carroll, has strong backing from both the Republican Party and many local attorneys.

Democrat Rosemary Khoury, 47, was recruited by the Democratic Party, to challenge Dudley. She, too, has the support of prominent local attorneys, party faithful such as Sheriff Scott Mellinger, state Sen. Tim Lanane, and state Rep. Terri Austin.

The long story continues with details about each candidate.

Posted by Marcia Oddi on Thursday, October 27, 2016
Posted to Indiana Courts

Ind. Law - "Notification for farm lease changes should be made in writing", and soon

As the ILB has posted in earlier years, a new alert from Purdue Ag Extension begins:

Indiana landowners and tenant farmers who want to renegotiate or terminate farmland leases should deliver clear, timely, written notification of their intentions rather than relying on word-of-mouth, a Purdue Extension agricultural law specialist says.

The Indiana notification deadline is three months before the end of the current crop year unless the two sides have agreed on a different date. By custom, crop years end the last day of February - in this case, Feb. 28, 2017 - meaning the deadline for delivering notification is before Dec. 1, 2016.

If no changes are made to the lease, the existing terms remain in place for the next year.

Posted by Marcia Oddi on Thursday, October 27, 2016
Posted to Indiana Law

Ind. Courts - More on: Nancy Vaidik reelected as COA Chief Judge

"Porter County native re-elected chief judge of Indiana Court of Appeals" is the heading to Dan Carden's story today in the NWI Times. A quote:

INDIANAPOLIS — The 15 judges of the Indiana Court of Appeals have elected Chief Judge Nancy Vaidik, of Valparaiso, to a second three-year term as their leader.

By law and precedent, the chief judge oversees Court of Appeals administration, serves as court liaison to the legislative and executive branches and represents the court at public and private ceremonies and events.

The court did not disclose Wednesday's vote results for chief judge. Vaidik has held the post since January 2014, and her new term runs through December 2019. * * *

The Valparaiso University and Valparaiso School of Law graduate worked in private practice, served as chief deputy prosecutor and later trial court judge in Porter County before joining the Court of Appeals.

Posted by Marcia Oddi on Thursday, October 27, 2016
Posted to Ind. App.Ct. Decisions

Law - "In ballot selfie battle, free speech beats fear of voter fraud"

That is the heading of this new Reuters "On the Case" column by Alison Frankel. A few quotes from the long story:

Voting is democracy’s most fundamental right and responsibility and recent federal court rulings say you have a constitutional right to post photographs of yourself doing it.

More than a dozen states have laws on the books that bar voters from photographing their ballots or even showing their ballot to another person. In the era of camera-equipped smartphones and social media, states have interpreted those laws to prohibit ballot selfies. Some states have gone a step farther and actually passed laws barring voters from posting photos of themselves at their polling stations. * * *

Last month, the 1st U.S. Circuit Court of Appeals struck down a 2014 New Hampshire law that was enacted specifically to bar voters from photographing themselves in election booths. The case was brought by the American Civil Liberties Union on behalf of three New Hampshire voters who defied the law and posted ballot selfies. * * *

The ACLU said the appellate ruling should apply to all state ballot-selfie bans in states within the 1st Circuit, including Massachusetts.

The group previously won a challenge to a 2015 Indiana law similar to New Hampshire’s statute. Courts in both the New Hampshire and Indiana cases held selfie bans were unconstitutional because the laws were not narrowly tailored and imposed unreasonable restrictions on voters’ right to express their political views.

This Reuters map of the United States identifies where each state stands on ballot selfies. Indiana is labeled "Yes with exceptions", but gives no indication of what the exceptions are... Anyone know?

For background, see this ILB post from Oct. 24th.

Posted by Marcia Oddi on Thursday, October 27, 2016
Posted to General Law Related

Wednesday, October 26, 2016

Ind. Courts - Nancy Vaidik reelected as COA Chief Judge

From the news release:

Court of Appeals re-elects Nancy Vaidik as Chief Judge: Chief Judge Nancy Vaidik’s second term begins Jan. 1

INDIANAPOLIS – The judges of the Court of Appeals of Indiana today re-elected Chief Judge Nancy H. Vaidik to serve her second term as the Court’s Chief Judge. Chief Judge Vaidik’s three-year term of office will start Jan. 1, 2017.

Chief Judge Vaidik was appointed to the Court of Appeals in February 2000 by Governor Frank O’Bannon. She was retained by election in 2002 and 2012 and initially elected Chief Judge in October 2013.

Posted by Marcia Oddi on Wednesday, October 26, 2016
Posted to Indiana Courts

Ind. Gov't. - "Amendment on hunting, fishing is unnecessary"

Thatis the heading to the $$ editorial today in the Bloomington Herald-Times, made available here via Indiana Economic Digest. Some quotes:

Does Indiana really need to add the right to hunt, fish and harvest wildlife into the state constitution?

No, it does not.

But some lawmakers, following the lead of the National Rifle Association, have gotten this public question to the Nov. 8 ballot. * * *

Those who want voters to pick “yes” for this question say this change will forever enshrine hunting, fishing and harvesting wildlife as a valued part of Indiana’s heritage. Here’s what they’re missing:

With or without this amendment, those things will remain a valued part of the state’s heritage.

So will the right to play basketball, grow tomatoes and sweet corn, and race cars or bicycles.

The state constitution needn’t be amended to protect those latter three. And it needn’t be amended to protect the first three, either. If it is, the process will trivialize the state’s most important core protections such as freedom of speech and freedom of religion.

It’s almost impossible to see a political majority in this state or pretty much anywhere that would truly threaten the opportunity of people to hunt, fish or harvest wildlife. And that’s as it should be. Hoosiers should have that right, as the right to shoot a 15-foot jump shot.

But this takes the issue one step further, makes it into an unnecessary political statement and truly degrades the sanctity of what should be the state’s most treasured governmental document.

ILB: Many other ILB posts on this proposed amendment are available here.

Posted by Marcia Oddi on Wednesday, October 26, 2016
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 12 NFP memorandum decision(s))

For publication opinions today (1):

In George D. Jones v. State of Indiana, et al. , a 6-page opinion, Judge Altice writes:

George D. Jones appeals the denial of his petition for specialized driving
privileges, which he filed about six and a half years after having his Indiana driver’s licen se suspended for life by the trial court . On appeal, Jones contends that the trial court improperly denied his petition. Jones asks that we remand the case to the trial court with instructions to stay the lifetime suspension and issue specialized driving privileges with the condition that he be required to use a photo/video ignition interlock device. We affirm. * * *

We cannot conclude that the trial court abused its broad discretion in this case. As observed by the trial court, Jones is a habitual traffic viol ator with approximately twenty - seven traffic - related convictions since 1997 and two OWI convictions in 2004 and 2009. He currently resides in Mississippi, a substantial distance away from Indiana, and his request suggests that he will be driving regularly in Mississippi and Louisiana and occasionally with two small children. The trial court’s concerns about enforceability and public safety under the specific circumstances of this case support its decision to deny Jones’s petition. We reject the invitati on to reweigh the evidence and substitute our judgment for that of the trial court.

NFP civil decisions today (6):

In the Matter of J.T., D.O.B. 12/16/02, alleged to be a Delinquent Child (mem. dec.)

In Re the Marriage of: Cheryl Smith v. Lawrence Robinson (mem. dec.)

C.N. and G.N. v. Indiana Department of Child Services (mem. dec.)

Community Park Investments, Inc. v. Jamie Guess and Barry Lewis, Jr. (mem. dec.)

In the Term. of the Parent-Child Relationship of: S.P. and A.P. (Minor Children), and C.P. (Mother) v. The Indiana Department of Child Services (mem. dec.)

Richard A. Brown and Janet Brown v. City of Valparaiso, Indiana (mem. dec.)

NFP criminal decisions today (6):

Brian L. Blevins, Sr. v. State of Indiana (mem. dec.)

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

Richard D. Carter v. State of Indiana (mem. dec.)

Kent R. Blair, Sr. v. State of Indiana (mem. dec.)

Timothy Weakley v. State of Indiana (mem. dec.)

Antonio L. Ware v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, October 26, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides two today, so far

In F. John Rogers, as Personal Representative of Paul Michalik, Deceased, and R. David Boyer, Trustee of the Bankruptcy Estate of Jerry Lee Chambers v. Angela Martin and Brian Paul Brothers, a 16-page, 5-0 opinion, Chief Justice Rush writes:

Angela Martin and Brian Brothers co-hosted a house party. As it wound down, Brothers and two guests—Jerry Chambers and Paul Michalik—got into a fistfight. Afterwards, Martin found Jerry Chambers bleeding from his face and Paul Michalik lying motionless on her basement floor. Michalik died shortly thereafter.

Chambers’s bankruptcy trustee and Michalik’s estate sued Martin, claiming, in part, that she negligently caused Michalik’s injuries and that she furnished alcohol in violation of Indiana’s Dram Shop Act. Martin filed a motion for summary judgment, which the trial court granted.

Applying principles of premises liability law, we first hold that summary judgment was improper on the negligence claim. As a landowner, Martin owed her invitee Michalik a duty to exercise reasonable care for his protection while he was on her premises. This Court has, on several occasions, decided how this general landowner–invitee duty applies in various circumstances— with foreseeability being the determinative question. Bearing that in mind, we conclude that although Martin had no duty to protect Michalik from the unforeseeable fistfight, she did have a duty to protect him from the foreseeable exacerbation of an injury occurring in her home. Whether she breached this duty by going back to bed instead of taking some affirmative action, like dialing 911, is a question of fact. We therefore reverse summary judgment on the negligence claim.

Summary judgment was proper, however, on the Dram Shop Act claim. Under Indiana’s Dram Shop Act, a person does not “furnish” alcohol by providing it to someone who already possesses it. And here, because Martin and Brothers jointly paid for and possessed the same beer, Martin could not furnish it to Brothers. We thus affirm summary judgment on that claim. * * *

Conclusion. We find that summary judgment was improper on the negligence claim as there remains a question of fact as to whether Martin breached the landowner–invitee “duty to protect” owed to Michalik. However, summary judgment was appropriate on plaintiffs’ Dram Shop Act claim because the plain meaning of “furnish” within the Act requires that Martin have transferred possession of the alcohol to Brothers, which she could not do, as they jointly possessed the beer in question. Accordingly, we affirm summary judgment in part and reverse in part.

In April Goodwin, Tiffany Randolph and Javon Washington v. Yeakle's Sports Bar and Grill, Inc., a 14-page, 5-0 opinion, Justice Rucker writes:
Patrons injured after a shooting in a neighborhood bar sued the bar for negligence. The trial court granted summary judgment in the bar’s favor concluding it owed no duty to the patrons because the shooting was not foreseeable as a matter of law. For the reasons that follow we agree and affirm. * * *

Conclusion. In a negligence action, whether a duty exists is a question of law for the court to decide. And in those instances where foreseeability is an element of duty, this necessarily means the court must determine the question of foreseeability as a matter of law. When doing so the court is tasked with engaging in a general analysis of the broad type of plaintiff and harm involved without regard to the facts of the actual occurrence. Here, focusing on the facts of this case, the trial court employed a now-discarded analytical tool in determining the question of foreseeability. But we review questions of law de novo. Engaging in such review we conclude the trial court properly granted summary judgment in the Bar’s favor. We therefore affirm the trial court’s judgment.

Posted by Marcia Oddi on Wednesday, October 26, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Voter fraud probe could create cynicism" [Updated]

A story today by Maureen Hayden of CNHI gives the best overview I've seen of the Indiana voter registration/voter fraud issues we have all been hearing about for weeks now. Here it is in the Greensburg Daily News and in The Hendricks County Flyer. The story is too long to quote in its entirety, but should be read in full. It begins:

INDIANAPOLIS -- Every election season, Erin Kelley and volunteers with the League of Women Voters get calls from churches and civic groups seeking help signing up voters.

Kelley, state president of the nonpartisan league, said she now worries those calls will stop.

A politically charged investigation into potential voter fraud, targeting an unrelated group, could chill efforts to get more people to perform that most basic act of democracy, she said.

“I don’t think what’s going on now sends a comforting message that you should get involved in voter registration,” Kelley said.

With just two weeks before the election, questions surrounding the case seem unlikely to be resolved soon.

A State Police probe, prompted by a handful of irregular voter registration forms, now involves 56 of 92 counties and 45,000 new voter registrations.

It’s generated accusations of voter suppression of black voters, as well as bitter partisan exchanges during an already contentious campaign season in which the Republican presidential nominee, Donald Trump, has separately claimed the election is rigged.

Late last week, State Police Chief Superintendent Doug Carter claimed in a television interview that “voter fraud” is occurring in Indiana, though he refused to offer details. He defended similar claims by his boss, Gov. Mike Pence, who is Trump’s running mate.

And from later in the story:
Individuals conducting voter registration drives are required by law to turn in every voter application, whether correctly completed or not. [Patriot Majority USA spokesman Bill Buck] said canvassers turned in all applications to county clerks and flagged ones they thought may have missing information or be problematic.

“We think by flagging that information, we inadvertently triggered the investigation,” he said.

State Police have been guarded about their review, but Buck said investigators in late summer started questioning canvassers about their procedures. Early this month, troopers raided the Indiana Voter Registration Project’s office in Indianapolis.

Soon after, Secretary of State Connie Lawson, a Republican ally of Pence, told reporters her office was cooperating. She said the investigation had started when the elected county clerk in Hendricks County reported seeing several questionable forms that had been submitted by the group.

Some other stories worth reading:[Updated at 10:50 am] Here is another recommended, and very long, story, "Indiana: a perfect storm for voter fraud debate," by Ariane de Vogue, CNN Supreme Court Reporter, Oct. 26, 2016. A few quotes:
(CNN)In the final weeks of the campaign as Donald Trump fuels questions concerning voting irregularities, a case in Indiana -- the home turf of the GOP running mate Mike Pence -- perfectly frames the current debate on voter fraud.
On the one side of the controversy are those who say they are working to protect the integrity of the election. On the other side are their opponents who allege that some of those efforts are really a veiled attempt to restrict the vote.

The issue in Indiana is Patriot Majority USA, a liberal group that runs the Indiana Voter Registration Program, which calls itself the largest voter registration program of African-Americans in the state. It says it submitted some 40,000 registration forms this year — until Republican officials stepped in. * * *

Like others, [Rick] Hasen is taking a wait-and-see approach on the Indiana case until [ISP Superintendent] Carter's investigation is complete.

"It's a puzzling case," said Marjorie Hersey, a professor at Indiana University.

"By law, any groups that register voters are required to turn in all the registrations they receive, to make sure that they don't decide to turn in only the forms of prospective voters who favor their party," she said.

It's not infrequent for a state to receive a number of inaccurate registration forms, Hersey said. She is worried that voters might hear allegations of voter fraud and be under the impression that "the old-time, cigar-chomping city 'bosses' that held power in many cities in the late 1800s and early 1900s are still alive and well."

"Once people get a colorful image in their minds, it's not easy to convince them of the reality of today's elections," she said.

Posted by Marcia Oddi on Wednesday, October 26, 2016
Posted to Indiana Government

Tuesday, October 25, 2016

Ind. Decisions - Supreme Court rejects COA's “specious and not supported by cogent reasoning” assessment of appellant's argument

In Victor Karp v. State of Indiana, a 2-page per curiam opinion, the Court writes:

Karp argued the trial court sentenced Karp more harshly because he exercised his constitutional right to a jury trial.

The Court of Appeals affirmed Karp’s conviction and sentence. Karp v. State, No. 15A04- 1601-CR-32 (Ind. Ct. App. 2016). In so doing, the court found Karp’s sentencing argument “specious and not supported by cogent reasoning.” Id. at 6. While we agree with our colleagues’ ultimate resolution of the sentencing issue and the case as a whole, we do not share their assessment of Karp’s sentencing argument. Accordingly, we grant transfer and summarily affirm the Court of Appeals opinion pursuant to Indiana Appellate Rule 58(A), with the exception of the abovequoted passage, which is hereby vacated.

Rush, C.J., and Rucker and David, JJ., concur.
Massa and Slaughter, JJ., concur in result.

Posted by Marcia Oddi on Tuesday, October 25, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today, remanding for resentencing

In USA v. Matthew Elder (SD Ind., Young), an 11-page opinion, Judge Manion writes:

Matthew Elder was convicted for conspiracy to distribute methamphetamine and sentenced to a mandatory term of life imprisonment. He now appeals his conviction and sentence. For the reasons that follow, we af‐ firm Elder’s conviction but vacate his sentence and remand for resentencing. * * *

Under § 841’s “three strikes” provision, a person who con‐ spires to distribute 50 grams or more of methamphetamine must be sentenced to life in prison if he has previously been convicted of two or more felony drug offenses. 21 U.S.C. § 841(b)(1)(A). For purposes of § 841, a prior offense is a “fel‐ ony drug offense” only if, among other things, it is “punisha‐ ble by imprisonment for more than one year.” 21 U.S.C. § 802 (44). Although Elder’s 1997 offense of conviction—possession of drug paraphernalia in violation of Ariz. Rev. Stat. Ann. § 13‐3415(A)—is presently punishable by imprisonment for more than one year, the offense carried a one‐year maximum sentence at the time of Elder’s conviction in 1997. Compare Ariz. Rev. Stat. Ann. § 13‐702(D) (effective Jan. 1, 2009), with Ariz. Rev. Stat. Ann. § 13‐701(C) (amended Jan. 1, 2009). As a consequence, Elder’s 1997 conviction was not a conviction for a felony drug offense within the meaning of § 841, and the district court’s finding to the contrary was plainly erroneous. The government agrees and correctly concedes that the man‐ datory life sentence was improper. We therefore vacate Elder’s sentence and remand for a complete resentencing in conform‐ ity with this opinion.

III. CONCLUSION Forthe foregoing reasons, we affirm Elder’s conviction but vacate his sentence and remand for resentencing consistent with this opinion. AFFIRMED IN PART; VACATED AND REMANDED IN PART.

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

Ind. Decisions - "Case Managers Win Appeal Challenging DCS Staffing"

Re Mary Price v. DCS, decided today by a 2-1 panel of the Court of Appeals, the ACLU of Indiana has now issued this news release:

Decision reverses trial court's order to dismiss, saying case managers have a right to bring an action to force DCS to comply with state law.

Today the Court of Appeals of Indiana handed a victory to case managers at the Indiana Department of Child Services more than a year after they filed a class action lawsuit challenging the failure of DCS to adequately staff the agency as required by law.

In July, 2015, the American Civil Liberties Union of Indiana brought the class-action lawsuit against DCS on behalf of case manager Mary Price and other case managers for violating Indiana Code § 31-25-2-5, which mandates the maximum number of caseloads case managers may have. Today's decision reverses the trial court's Feb., 2016 order to dismiss the lawsuit, saying that case managers have a right to bring an action under mandate to force DCS to comply with the statutory caseload maximums. The case has been remanded to the trial court.

"The vital societal importance of the services provided by DCS case managers cannot be overestimated," said Ken Falk, ACLU of Indiana legal director. "I am happy that we will be given the opportunity to demonstrate to the trial court that the caseload standards that are essential for the case managers to perform their jobs are not being met."

Case managers argue that DCS does not allow them to keep caseloads at levels that allow children to be effectively protected and served. According to the law, a case manager may supervise no more than 17 children at one time. Price carried a caseload of 43 children.

"The statutory caseload maximums included [in the state law] are not an aspirational goal but are a clear and definite number to attain," the decision reads, in part. "Accordingly, as [the law] imposes a clear, absolute, and imperative duty on DCS to comply with maximum caseload standards...and no administrative remedy is available to address this systemic violation of Indiana law, we conclude that Price can proceed with mandate action."

Posted by Marcia Oddi on Tuesday, October 25, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides second case today

In State of Indiana v. Robert Collier, an 8-page, 5-0 opinion, Justice David writes:

At issue in this case is whether the post-conviction court erred in granting Collier’s motion for relief from judgment pursuant to Trial Rule 60(B)(8). In light of the facts and circumstances of this case and given the deferential standard of review, we affirm finding that: 1) Collier filed his motion within a reasonable time given his incarceration, lack of education, limited resources and potential cognitive and/or mental deficiencies; 2) there were extraordinary circumstances due to the post-conviction court’s failure to refer Collier’s petition to the State Public Defender in accordance with the Post-Conviction Rules; and 3) Collier has alleged a meritorious claim. * * *

In sum, the post-conviction court was well aware of the time delay between the denial of Collier’s 2007 petition and his 2015 motion for relief from judgment. It also heard from both parties during two hearings wherein Collier presented evidence regarding his reasons for the delay and the State presented its argument that it was prejudiced by the delay. Nevertheless, the postconviction court ultimately decided that, in light of the court’s own error in not referring Collier’s petition to the State Public Defender in 2007, he should be allowed to have his case heard on the merits with the assistance of counsel. This result is consistent with the facts and circumstances of this case and with this Court’s interest in ensuring fairness, first and foremost. See Huffman, 643 N.E.2d at 901. It cannot be said that the court’s correction of its own error, which was compounded by Collier’s lack of education and potentially his cognitive and/or mental difficulties, is against the “logic and effect of the facts and circumstances before [it].” McElfresh, 51 N.E.3d at 107.

Conclusion. Because Collier’s petition for post-conviction relief was not referred to the State Public Defender as required by the Post-Conviction Rules, and in light of Collier’s lack of education and potential cognitive and/or mental deficiencies, the post-conviction court did not err in granting Collier’s Trial Rule 60(B)(8) motion for relief from judgment so that he could seek meaningful post-conviction review. Collier sufficiently demonstrated that he filed his motion for relief within a reasonable time considering the circumstances and that he is entitled to extraordinary relief. He also alleged a meritorious claim because, in any case, the result of his post-conviction petition will now be different than a summary dismissal. Accordingly, the post-conviction court did not abuse its discretion and we affirm its judgment.

Posted by Marcia Oddi on Tuesday, October 25, 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 Randy Faulkner & Associates, Inc. and Randall W. Faulkner v. The Restoration Church, Inc., a 3-page, 2-1 opinion on rehearing, Judge Robb concludes:

We grant rehearing for the purpose of addressing the Church’s argument about this additional provision of the lease, but for the reasons stated above, reaffirm our decision in all respects.

Crone, J., concurs.
Riley, J., dissents without separate opinion.

In Mary Price, on her own behalf and on behalf of a class of those similarly situated v. Indiana Department of Child Services (DCS); Director, Indiana Department of Child Services, is a 25-page, 3-opinion ruling. This is the ACLU challenge to the DCS failure to follow the statutory case-load restrictions (background post here). The majority opinion by Judge Riley concludes on p. 19 with:
Based on the foregoing, we conclude that even though Price has no private case of action under I.C. § 31-25-2-5, Price’s Complaint states a claim for relief as an action for mandate.
Affirmed in part, reversed in part, and remanded.

Robb, J. concurs in part and concurs in result in part with separate opinion.

Kirsch, J. concurs in part and dissents in part with separate opinion

NFP civil decisions today (0):

NFP criminal decisions today (6):

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

Homer T. Richards v. State of Indiana (mem. dec.)

Mark A. Dickmeyer v. State of Indiana (mem. dec.)

Terik C. Prater v. State of Indiana (mem. dec.)

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

Charles D. Gilliam, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, October 25, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, an attorney disciplinary opinion

In In the Matter of: Terry Lee Smith, a 5-page, 5-0, per curiam opinion involving charges of misconduct against a deputy prosecuting attorney in White County, the Court writes:

The Indiana Supreme Court Disciplinary Commission filed a “Verified Complaint for Disciplinary Action” against Respondent Terry Lee Smith, charging him with attorney misconduct based on actions taken while prosecuting a defendant’s retrial. Respondent’s 1977 admission to this state’s bar subjects him to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4.

This matter is now before the Court on the report of the hearing officer appointed by this Court to hear evidence on the verified complaint and on the post-hearing briefing by the parties. Based on the record before us, we conclude that Respondent did not engage in attorney misconduct as charged and therefore enter judgment in Respondent’s favor.

Posted by Marcia Oddi on Tuesday, October 25, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Report: Indiana Public Defender System 'Structurally Flawed'”

Mike Perleberg of EagleCounty 99.3FM News reports today on a new Sixth Amendment Center 228-page report, “The Right to Counsel in Indiana: An Assessment of Trial Level Indigent Defense Services.” A quote:

The problems, the organization says, largely stem from how Indiana’s public defenders are funded.

“Under U.S. Supreme Court case law, the provision of Sixth Amendment indigent defense services is a state obligation through the Fourteenth Amendment. In Indiana, however, counties are responsible in the first instance to fund and administer services,” the report says.

It is not unconstitutional for a state to delegate this responsibility to counties, but it must guarantee that local governments are providing adequate representation. However, Indiana has been short of the mark.

Among the report’s findings, Indiana has no mechanism to ensure that its constitutional obligation to provide effective counsel to the indigent accused is met in misdemeanor cases in any of its courts, including city and town courts.

Posted by Marcia Oddi on Tuesday, October 25, 2016
Posted to Indiana Courts

Ind. Gov't. - "Vacant structures leave communities big-boxed into a corner"

Rob Earnshaw of the NWI Times has an interesting story today about how big box companies hold on to their vacant buildings. A sample:

St. John Town Manager Steve Kil's thoughts on big-box abandonment are similar.

"You don't have the enforcement authority that you think you do," he said.

Kil said the Kmart property is owned by Garden Properties in New Jersey, and they have no plans to sell it. He said he was told by one of its representatives that it is the policy and business plan of their company to not sell their properties.

"They will only enter into long-term leases with what they consider to be blue chip tenants," he said. "They are willing to sit on properties for decades if that's what it takes."

Kil said he was given an example of a vacant property the company owns in Chicago's northwest suburbs that "took them 10 years to lease."

Posted by Marcia Oddi on Tuesday, October 25, 2016
Posted to Indiana Government

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

Ballots were mailed out this weekend to the home address of those attorneys eligible to vote for the attorney member who will represent the 2nd District on the Judicial Nominating Commission [JNC]/Commission on Judicial Qualifications for the next three years.

Ballots are due back by 4 PM on Nov. 18th. At 4 PM on Nov. 18th the Clerk of the Court will count the ballots.

The winner will assume the seat now held by Lee Christie, Esq., which expires on Dec. 31, 2016.

As I wrote in this August 22, 2016 ILB post, the coming three years are especially important. At least one Supreme Court and probably two or more Court of Appeals vacancies are anticipated.

In addition, a vote on who will be the Chief Justice will occur near the end of the three-year term of this new JNC member. Art. 7, Sec. 3 of the Indiana Constitution provides:

"The Chief Justice of the State shall be selected by the judicial nominating commission from the members of the Supreme Court and he [sic.] shall retain that office for a period of five years, subject to reappointment in the same manner ..."
There are three candidates on the 2016 ballot for the 2nd District attorney representative (links are to their law firm biographies):Here is a copy of the biographical material and statements provided by the candidates that accompany the ballot.

Here is a chart showing all attorneys who have served on the JNC/CJQ since its inception in 1972. Shaded names indicates members who have been elected at least twice. Members may not serve consecutive terms.

The "James Young" on the chart, who served the 2nd District from 2005 through 2007, is, as noted in his bio, the same "James H. Young" on this year's ballot.

ILB Comment. Notable when looking at the list of all the attorneys over the past 45 years who have been elected by their peers to represent Indiana attorneys on the commission that selects state-wide judges/justices and that disciplines Indiana judges is that not one of them has been a woman, although very well-qualified women have run in the past two elections.

Posted by Marcia Oddi on Tuesday, October 25, 2016
Posted to Indiana Courts

Courts - "Report Finds Television Attack Ads Influencing Rulings by Elected State Supreme Court Judges"

The news release begins:

The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals. That’s according to independent research sponsored by the American Constitution Society for Law and Policy (ACS). State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.

The report, Skewed Justice: Citizens United, Television Advertising, and State Supreme Court Justices’ Decisions in Criminal Cases, is a compilation of data from over 3,000 criminal appeals decided in state supreme courts in 32 states from 2008 to 2013. Researchers found that the more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to rule in favor of criminal defendants; and justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the Citizens United decision.

Here is the report.

Posted by Marcia Oddi on Tuesday, October 25, 2016
Posted to Courts in general

Monday, October 24, 2016

Ind. Decisions - SD Ind. Judge Barker's ballot selfie ruling from a year ago

There was so much interest in the ILB tweet this morning:

"Are ballot selfies allowed in Ohio, Kentucky and Indiana?" (Yes in Ind.)
that I thought it would be useful to repeat this ILB post from Oct. 20, 2015:
Ind. Courts - Here is yesterday's ruling in the ballot-selfie case [Updated]

Updating this ILB post from Oct. 19 and this one from Oct. 13, here is yesterday's 20-page ruling granting plaintiff's motion for a preliminary injunction, issued by SD Ind. Judge Sarah Evans Barker in Indiana Civil Liberties Union v. Indiana Sec. of State.

Here is an AP story on the ruling.

The upshot: The State is enjoined from enforcing the law now on the books prohibiting you from taking a photo of your completed ballot and posting it on Twitter. From the opinion:

Here, the balance weighs heavily in favor of the ACLU. The harm to the ACLU and its members as advanced on behalf of Indiana voters—the deprivation of First Amendment free speech rights—is presumptively irreparable. Elrod, 427 U.S. at 373; Joelner, 378 F.3d at 620. The State has failed to identify any harm that would result if an injunction were entered. See Defs.’ Resp. at 12 (conceding that “digital photography has yet to contribute to vote buying issues in Indiana.”). Central to our analysis of these factors is the principle that the public interest is always served when First Amendment freedoms are protected. Elrod, 427 U.S. at 373; Joelner, 378 F.3d at 620. Given the ACLU’s likelihood of success and the balance of these harms, a preliminary injunction enjoining enforcement of this statute is both appropriate and necessary.
[Updated at 12:45 PM] Here is the ACLU of Indiana news release.

Posted by Marcia Oddi on Monday, October 24, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Jared Fogle's ex-wife alleges Subway knew of his 'depravities'"

A few quotes from Madeline Buckley's Indianapolis Star story this afternoon:

The ex-wife of Jared Fogle is suing Subway, claiming the sandwich chain knew of their spokesman's "depravities."

Attorneys for Katie McLaughlin, Fogle's ex-wife, filed a lawsuit against Subway on her behalf in Hamilton Superior Court on Monday. Fogle is serving nearly 16 years in a federal prison for child pornography convictions. * * *

Subway turned Jared's family into a marketing tool, suit says, and used likenesses without their consent.

"Subway's ambition for sales and growth" came at expense of his wife and children, suit alleges. * * *

McLaughlin and her attorneys, from the firm, Church, Church, Hittle + Antrim, were holding a press conference Monday afternoon in Noblesville to unveil the details of the complaint.

Posted by Marcia Oddi on Monday, October 24, 2016
Posted to Indiana Courts

Law - "Should We See Everything a Cop Sees?"

The NY Times Sunday Magazine has a lengthy feature article this week, written by McKenzie Funk, with this intro:

Body cameras have been promoted as a solution to police misconduct. But the strange two-year saga of Seattle shows just how complicated total transparency can be.

Posted by Marcia Oddi on Monday, October 24, 2016
Posted to General Law Related

Environment - "Feds hit brakes on loans to big farms"

Catherine Boudreau has posted a long, fascinating story today in Politico about a 2013 lawsuit and its implications. The story begins:

The Obama administration is slow-walking the credit it gives to large dairy and livestock farms out of fear that it could get slapped with another big environmental lawsuit, POLITICO has learned.

Big farms in the South, Midwest and Northeast are struggling to get the financing they need because of the slowdown, with applications for loan guarantees languishing for more than a year and a half in some cases, lenders and state farm groups say.

The foot-dragging stems from a 2013 lawsuit that the environmental law nonprofit Earthjustice filed against the administration over loans it guaranteed for farmers to build a concentrated animal feeding operation in northern Arkansas. The litigation has forced the Small Business Administration to reevaluate the way it vets the loan applications to include an assessment of the environmental impact of construction, causing major delays in approvals.

The story continiues with much more information and valuable links.

Posted by Marcia Oddi on Monday, October 24, 2016
Posted to Courts in general | Environment

Ind. Decisions - Transfer list for week ending October 21, 2016

Here is the Clerk's transfer list for the week ending Friday, October 21, 2016. It is two pages (and 25 cases) long.

Three 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 Monday, October 24, 2016
Posted to Indiana Transfer Lists

Ind. Courts - More on: Bail reform rule announced, effective immediately in certain counties

This Sept. 7, 2016 ILB post began:

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.
The news release included:
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."
However, on Sept. 30th Mark Wilson reported in the Evansville C&P:
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.

Today the ILB has received a copy of this letter:

Posted by Marcia Oddi on Monday, October 24, 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 10/24/16):

Thursday, October 27

Next week's oral arguments before the Supreme Court (week of 10/31/16):

Thursday, November 3

Webcasts of Supreme Court oral arguments are available here.




This week's oral arguments before the Court of Appeals (week of 10/24/16):

Tuesday, October 25 Next week's oral arguments before the Court of Appeals (week of 10/31/16):

Thursday, November 3

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

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


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

Posted by Marcia Oddi on Monday, October 24, 2016
Posted to Upcoming Oral Arguments

Friday, October 21, 2016

Ind. Decisions - Supreme Court decides one today; and J. Slaughter's 1st majority opinion

In Mary K. Patchett v. Ashley N. Lee, a 12-page, 5-0 decision, including a separate concurring opinion, Justice Slaughter writes:

In Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009), we interpreted Indiana’s collateral-source statute to permit a defendant in a personal-injury suit to introduce discounted reimbursements negotiated between the plaintiff’s medical providers and his private health insurer, so long as insurance is not referenced. Today, we hold the rationale of Stanley v. Walker applies equally to reimbursements by government payers. The animating principle in both cases is that the medical provider has agreed to accept the reduced reimbursement as full payment for services rendered. The reduced amount is thus a probative, relevant measure of the reasonable value of the plaintiff’s medical care that the factfinder should consider. * * *

The parties agreed that Indiana Evidence Rule 413 allowed Lee to introduce her accidentrelated medical bills totaling $87,706.36 as evidence those charges were reasonable. The parties disagreed, however, whether Patchett could introduce evidence that Lee’s providers accepted a reduced amount as payment in full. Specifically, because Lee was enrolled in the Healthy Indiana Plan (HIP), a government-sponsored healthcare program, her providers, as HIP participants, accepted HIP’s prevailing reimbursement rates of $12,051.48 in full satisfaction of those charges— an 86-percent discount from the amounts billed.

Lee moved before trial to prevent the jury from hearing the reduced HIP rates. Patchett objected, but the trial court granted Lee’s motion. In addition to finding that the HIP payments are subject to the collateral-source statute and not permitted by Stanley, the court excluded the HIP amounts under Evidence Rule 403, because it found HIP’s reduced rates would only confuse the jury. The court certified its order for interlocutory appeal, observing that “whether [Patchett] may prove the reasonable value of [Lee’s] medical expenses by introducing evidence of the discounted payments made to her medical providers through HIP is of critical importance to the jury’s determination of damages.”

The Court of Appeals accepted jurisdiction and affirmed. Patchett v. Lee, 46 N.E.3d 476 (Ind. Ct. App. 2015). The court concluded Stanley was limited to “evidence of ‘discounted amounts’ arrived at as the result of negotiation between the provider and an insurer”. Id. at 487. Because the reduced HIP amounts “were not calculated based upon market negotiation”, the court held they are “not probative of reasonable value” and were properly excluded. Id. Patchett then sought transfer, arguing the courts below erred in finding Stanley v. Walker inapplicable to HIP discounts. We grant transfer, thus vacating the Court of Appeals opinion, and reverse. * * *

Stanley v. Walker made evidence of the reduced reimbursements a healthcare provider accepts as full payment for services rendered to be presumptively admissible in a personal-injury suit for damages concerning the reasonable value of necessary medical care. We hold that the trial court misinterpreted Stanley by holding the collateral-source statute required the exclusion of accepted reimbursements from government payers. Moreover, we find the court abused its discretion by excluding such evidence under Rule 403. We reverse and remand with instructions to allow Patchett to introduce evidence of the reduced HIP rates accepted by Lee’s medical providers so long as Patchett can do so without referencing their source.

Rush, C.J., and Massa, J., concur.

Rucker, J., concurs in result with separate opinion in which David, J., joins. Largely for reasons the majority explains I agree “the rationale of Stanley v. Walker applies equally to reimbursements by government payers.” Slip op. at 2 (emphasis added). I write separately however because I continue to believe Stanley was wrongly decided. * * *

Nonetheless neither party nor their aligned amici asks us to reconsider Stanley. And importantly, in the years since Stanley was decided, the legislature has not amended the collateral source statute in a way that demonstrates disapproval with this Court’s judicial interpretation. Further, the landscape in the healthcare industry has not changed dramatically since Stanley was decided and thus our doctrine of stare decisis also militates against charting a different course. For these reasons I concur in the result reached by the majority.

Posted by Marcia Oddi on Friday, October 21, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Two orders suspending attorneys for noncooperation

Two orders issued yesterday: "Suspending Respondent from the Practice of Law in Indiana for Noncooperation"

Posted by Marcia Oddi on Friday, October 21, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (2):

In re the Termination of the Parent-Child Relatinship of A.C. (Minor Child), and D.C. (Mother) v. The Indiana Department of Child Services (mem. dec..)

In the Matter of the Civil Commitment of B.J. v. Eskenazi Hospital/Midtown CMHC (mem. dec.)

NFP criminal decisions today (3):

Kyle Willhite v. State of Indiana (mem. dec.)

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

Jose Gutierrez v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, October 21, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Millions of pages of Gibson County court records will be digitized

Andrea Howe reports in the Princeton Daily Clarion in a story that begins:

Millions of pages of Gibson County court records will be converted digital archives in a $61,000 contract with Van Ausdall & Farrar approved Tuesday by Gibson County Commissioners.

Commissioners approved the company’s quote for the preservation work, which is about $9,500 less than an earlier proposal from another company.

Meanwhile, as that work proceeds, boxes of damp smelly records rescued from the basement of the old Princeton Sanitorium on West State Street are being aired out in the North Main Street Annex Building.

Volunteers from Princeton Public Library are working on copying information from those boxes as the pages dry. The process should take about 12 to 14 months, estimated Gibson County Commissioner Alan Douglas.

Posted by Marcia Oddi on Friday, October 21, 2016
Posted to Indiana Decisions

Ind. Gov't. - “In my own state, in my own state of Indiana our State Police just recently uncovered intentional acts of voter fraud,” Pence said

That is from a WTTV 4 story by Jill Glavan.

The ILB last posted about voter fraud claims in Indiana on Oct. 11th, recalling the ACORN controversy in 2008.

This year there seem to be two parallel stories, and MUCH confusion. But the upshot may be just so much sound and fury ...

A voter registration group is signing up prospective new voters around the state, and the Indiana State Police appears to be investigating them ...

At the same time, as John Tuohy wrote in the Indianapolis Star yesterday:

As Republican presidential nominee Donald Trump repeats his message that the general election process is "rigged," the top election official in the home state of his running mate, Indiana Gov. Mike Pence, said she has found thousands more incidents of what she characterized as potential "voter fraud."

Republican Secretary of State Connie Lawson said her office has found voter registration forms containing first names and birth dates different from what voters provided. She said she has handed those altered records over to the Indiana State Police for review.

But there is much more in the story, including:
Though Lawson said thousands of tampered forms were discovered, neither office spokeswoman Valerie Warycha nor State Police would reveal precisely how many. Warycha said a number of registration forms each election are changed by voters themselves to provide updated information. In addition, government employees make a certain number of data entry errors. But she said the number of changed registrations this year was much higher than in past elections, which led officials to believe fraud was being committed. * * *

In Hamilton County, Republican elections administrator Kathy Richardson said she had not received any complaints and said she was miffed how Lawson concluded so quickly that the alleged anomalies might be fraud.

"I don't know how you distinguish between people purposely changing their information and those who didn't," Richardson said. "In an election like this, where everyone wants to vote, you are going to get a lot of changes. People change their first names or last names or change their addresses. Especially people who haven't voted in a while.

Then the story touches on the State Police investigation:
State Police also are investigating alleged fraud connected to the voter registration efforts of the group Patriot Majority USA. State Police officers raided the group's offices Oct. 4 and days later alleged fraud in 56 counties.

State Police Capt. Dave Bursten said the latest allegations could be linked to the earlier raid.

"What I can tell you at this moment is the changing of a first name and/or date of birth is consistent with what we are seeing on a number of voter registration applications submitted by PMUSA IVRP," he said in an email.

Craig Varoga, president of Patriot Majority USA, accused Gov. Mike Pence last week of using the State Police to suppress Indiana voters and violate their constitutional rights. And the group recently launched radio ads on black-oriented stations and placed ads in black newspapers across the state Saturday, accusing the governor and Republican vice presidential nominee of voter suppression.

Pence and State Police denied the accusations.

On Tuesday, Varoga said Lawson was trying to blame others for mistakes in her own office.

"In 2014 Connie Lawson was publicly forced to admit that 1 in 8 voters in the Secretary of State's registration lists had inaccurate information," he said in an email. "Instead of fixing the problem, now she is blaming the Bureau of Motor Vehicles, online registration and others for her gross incompetence."

The state allegations of fraud come as Trump has made a "rigged" election a prominent allegation in his recent campaign speeches.

“The election is absolutely being rigged by the dishonest and distorted media ... but also at many polling places,” Trump tweeted Sunday.

But, the story continues:
Andy Downs, director of the Mike Downs Center for Indiana Politics, said altering thousands of registration forms online and in the county offices would require a small army, he said.

"Coordinated voter fraud would be very complicated and labor intensive," he said. "I don't know how many people have that type of organization. And creating the false registration record is only part of it. Then you would have to get the fake people into the voting places to cast ballots."

A lengthy Oct. 20 story from Brian Slodysko of the AP begins:
INDIANAPOLIS (AP) — After initially warning of potential widespread voting fraud, Indiana's secretary of state has acknowledged that many of the thousands of altered registration records she flagged might just be residents rushing to correct their names or birth dates ahead of the election.

Republican Secretary of State Connie Lawson told The Associated Press she wanted Indiana State Police to investigate to ensure there was no widespread fraud after her office found a heavier than usual number of changes to voter registration records this election cycle.

"It's very possible that because of heightened activity this year that many of those changes are changes that the individual made," Lawson said Wednesday. "... That should give Indiana voters the comfort that we are vigilant and we are protecting their rights and the elections here are not rigged." * * *

Julia Vaughn, policy director for the nonpartisan government watchdog group Common Cause Indiana, said that before Lawson makes allegations of possible fraud her office "should make sure the voter file records haven't been altered through software snafus or human errors made by people in county or state agencies."

"There is almost no history of this kind of fraud here so her response helps to fuel irrational claims by Donald Trump and others that the election will be stolen through voter fraud," Vaughn said.

Today Zach Osowski and Chelsea Schneider have an Indianapolis Star story headed "Democrats blast Indiana 'voter fraud' talk as partisan." Some quotes:
Indiana Democrats are accusing Indiana Secretary of State Connie Lawson of playing partisan games and using “inflammatory rhetoric” when she alleged thousands of cases of voter registration discrepancies in Indiana could be voter fraud. * * *

Party spokesman Drew Anderson said with high-profile races in Indiana and with Republican presidential nominee Donald Trump claiming the national election is rigged, Lawson using a term like “voter fraud” without proof that fraud has actually occurred reeks of partisan politics.

“It should be the duty of our elected officials to calm the waters ahead of what is sure to be a very vigorous election,” Anderson said at a Thursday news conference. “Instead … Lawson rushed to judgment without apparently knowing all the facts or without doing her homework.”

Responding to Democrats, Lawson said voters have contacted her office for nearly two weeks, saying that their birth date or first name was changed on their registration without their knowledge. Lawson has said her office is unsure why the records were changed, but voters needed to be alerted. * * *

Local election officials in the Indianapolis area expressed confidence in the voting process, saying they're not seeing cases in which a voter's information has been altered without that person's knowledge.

What they are seeing is voters not finding themselves when they check their registration in a separate database kept by the secretary of state at the office's website, indianavoters.com. The clerks suspect those cases stem from voters putting incorrect information into the site.

Emily Shrock, the Democratic Party's voter protection director, said the discrepancies highlighted by Lawson could be as simple as a woman getting married and not changing her name on her voter registration. She said for Lawson to throw around words like fraud without having any proof to back that up depresses voter turnout.

Also today Mitch Smith, dateline Hammond, Ind., reports in a long story for the New York Times appears to pinpoint the genesis of the State Police investigation:
Debbie Hoskins, the elected clerk of Hendricks County, said she noticed problems several weeks ago with roughly 10 voter registration forms submitted by the Indiana Voter Registration Project.

Some of the forms were missing information, said Ms. Hoskins, a Republican. In other instances, the signatures on the forms did not seem to match those already in a state database. Ms. Hoskins said her office contacted one registered voter and asked about a form purporting to update some registration information. The voter claimed to have filled out no such form.

“Things didn’t feel right,” said Ms. Hoskins, whose concerns were to the State Police. “Things didn’t look right.”

THE INVESTIGATION The Indiana State Police served a search warrant on Oct. 4 at the Indiana Voter Registration Project office in Indianapolis, in response to a tip in August about voter registration forms being submitted with “missing, incomplete and incorrect information.”

At first the inquiry focused on just two counties, including Hendricks, but within a few days it had expanded to 56 of Indiana’s 92 counties.

Capt. David Bursten, a State Police spokesman, declined to say how many voter registration forms had been called into question. He said the investigation remained active and that no one had yet been arrested.

The NYT story then makes the jump right to the Secretary of State:
This week Connie Lawson, Indiana’s secretary of state, said that “thousands of dates of births and first names were changed” in the voter registration system and that “this may be a case of voter fraud.”

That expanded the investigation by the State Police. In a statement, Captain Bursten said that “the changing of a first name and/or date of birth is consistent with what we are seeing on a number of voter registration applications submitted” by the voter registration project.

THE VOTERS Reports of altered voter profiles created concern among citizens that they might have been unregistered. Ms. Hoskins, the county clerk, said a number of voters had been calling to check whether they were still eligible to vote.

“There are a lot of people that are worried,” she said, adding that in each of those cases, “We haven’t had a problem so far.”

Posted by Marcia Oddi on Friday, October 21, 2016
Posted to Indiana Government

Thursday, October 20, 2016

Ind. Decisions - 7th Cir. rules on Illinois law regulating the concealed-carry rights of nonresidents

In Culp v. Madigan (CD Ill.), 22-page 2-1 opinion, Judge Posner writes:

The plaintiffs in this case, nonresidents of Illinois each of whom has a concealed-carry license from his home state, travel to Illinois whether on business or for family or other reasons and want, while they are in Illinois, to be allowed to carry a firearm even if they are not within the exceptions to the restrictions on nonresident gun carrying just listed, but are not allowed to do so because they aren’t residents of states that have firearm laws substantially similar to Illinois’. They argue that Illinois’ refusal to issue concealed-carry licenses to them violates Article IV of, and the Second and Fourteenth Amendments to, the Constitution. The district judge declined to issue a preliminary injunction, precipitating this appeal. * * *

The critical problem presented by the plaintiffs’ demand—for which they offer no solution—is verification. A nonresident’s application for an Illinois concealed-carry license cannot be taken at face value. The assertions in it must be verified. And Illinois needs to receive reliable updates in order to confirm that license-holders remain qualified during the five-year term of the license. Yet its ability to verify is extremely limited unless the nonresident lives in one of the four states that have concealed-carry laws similar to Illinois’ law. A trial in this case may cast the facts in a different light, but the plaintiffs have not made a case for a preliminary injunction. AFFIRMED

MANION, Circuit Judge, dissenting. [beginning on p. 8]
Just four years ago, this court invalidated Illinois’ decades-old blanket ban on the carrying of firearms in public. Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012). We recognized that the Second Amendment requires states to “permit law-abiding and mentally healthy persons to carry loaded weapons in public.” Berron v. Ill. Concealed Carry Licensing Review Bd., 825 F.3d 843, 845 (7th Cir. 2016). It was only in response to our decision in Moore that Illinois finally became the last state in the nation to enact a concealed-carry law.

Although Illinois now reluctantly allows its residents to carry concealed weapons with a license, it still significantly restricts the rights of nonresidents to do so. State law prevents the residents of 45 states from even applying for an Illinois concealed-carry license because the Department of State Police has not classified their states’ public-carry qualifications as “substantially similar” to those Illinois imposes. These nonresidents, including the plaintiffs in this case, have no opportunity to prove that they meet Illinois’ requirements. Based solely on their states of residence, they are deprived of any opportunity to exercise their Second Amendment rights in Illinois.

When a state law infringes on the fundamental Second Amendment right to keep and bear arms for self-defense, it must satisfy heightened scrutiny. Our precedents instruct that to sustain such a law, a state must present “an extremely strong public-interest justification and a close fit between the government’s means and its end.” Ezell v. City of Chicago, 651 F.3d 684, 708 (7th Cir. 2011). Illinois has not done so here. As explained below, the state’s chosen method to regulate non-resident concealed-carry license applications is not sufficiently tailored to its goal of properly vetting out-of-state applicants’ criminal and mental histories. Therefore, the ban violates the Second Amendment.

Nevertheless, the court holds that the plaintiffs are not entitled to preliminary relief because the application ban is not “unreasonable.” The court’s application of rational-basis review to the nonresident application ban is directly contrary to Supreme Court and Seventh Circuit precedent. Under the proper standard of review, the plaintiffs are certain to succeed on the merits of their Second Amendment claim.1 I would reverse the district court’s judgment and remand with instructions to issue a preliminary injunction. I respectfully dissent.

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

Ind. Decisions - Supreme Court issued four disciplinary orders October 7th

The Supreme Court issued 4 disciplinary orders on October 7th:

Posted by Marcia Oddi on Thursday, October 20, 2016
Posted to Ind. Sup.Ct. Decisions

Environment - "National Park Service says banquet center at beach would constitute public-to-private conversion"

Updating a lengthy list of earlier ILB posts on the Indiana Dunes pavilion controversy, Kevin Nevers of the Chesterton Tribune reported last evening in a long story beginning:

The proposed banquet center at Indiana Dunes State Park beach would constitute a conversion of public recreational land under the Land and Water Conservation Fund (LWCF) Act of 1965.

That’s the finding of Roger Knowlton, acting chief, recreation grants, at the National Park Service’s Midwest Regional Office, communicated in a Sept. 16 letter to Department of Natural Resources Director Cameron Clark.

Knowlton’s finding means that, before Pavilion Partners LLC may actually break ground on a banquet center, the DNR must identify and substitute--in place of the footprint removed from public recreational use at the Dunes State Park lakefront--some other property “determined by NPS to be of at least equal fair market value and of reasonably equivalent usefulness and location,” as NPS puts it in the final LWCF rule published in the Federal Register in 1986.

Posted by Marcia Oddi on Thursday, October 20, 2016
Posted to Environment | Indiana Government

Courts - "Last night’s presidential debate: The Supreme Court and the candidates"

Amy Howe of SCOTUSblog posts this morning on the discussion of the SCOTUS during last night's 3rd presidential debate, concluding:

No matter who is elected, the next president’s ability to influence the court’s direction will hinge on his or her ability to nominate, and have the Senate confirm, new justices. The current vacancy on the court, created by the death of Justice Antonin Scalia last February, came up only once, when Clinton expressed her “hope that the Senate would do its job and confirm the nominee” – Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, although she did not refer to him by name – “that President Obama has sent to them.” Clinton did not say, and Wallace did not ask, whether she would re-nominate Garland if she were elected and the Senate had not acted on his nomination by the time she took office.

Posted by Marcia Oddi on Thursday, October 20, 2016
Posted to Courts in general

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

For publication opinions today (2):

In James A. McGee v. Shanna Kennedy , a 9-page opinion, Judge Bailey writes:

Shanna Kennedy (“Kennedy”) and James McGee (“McGee”) were involved in an automobile accident and litigation ensued. McGee filed an Indiana Trial Rule 12(B)(6) motion to dismiss on statute of limitations grounds and Kennedy filed an Indiana Trial Rule 59 Motion to Correct Error in order to amend the filing date of her complaint. The trial court granted the Trial Rule 59 motion, McGee filed a motion to reconsider, the motion to dismiss was set for hearing, and McGee initiated an appeal. While the appeal was pending, the trial court purportedly granted the motion to dismiss. Lacking jurisdiction, we dismiss the interlocutory appeal.

McGee presents a single, consolidated issue: whether the trial court properly granted Trial Rule 59 relief. Kennedy presents a single, consolidated issue: whether the trial court properly granted McGee’s Trial Rule 12(B)(6) motion to dismiss. We address the procedural and substantive allegations of the parties to the extent necessary to resolve an issue that we raise sua sponte: whether there is subject matter jurisdiction to hear the appeal. * * *

In essence, Kennedy sought a summary means to amend her complaint by presenting an affidavit and asking the trial court to correct error with reference to Trial Rule 59. McGee, in turn, filed an “exhibit.” (App. at 25.) Kennedy could not, however, simply circumvent summary judgment proceedings by referencing Trial Rule 59 and obtaining a generic ruling thereon. We do not consider her pre-trial motion to be a “timely” filing of a Motion to Correct Error defined as a final judgment by Appellate Rule 2(H)(4).3 Likewise, McGee could not deprive Kennedy of the opportunity to amend her complaint and obtain a final disposition by means of a dismissal while an appeal pended. In short, the procedures employed did not result in a final judgment, that is, one which disposes of all claims as to all parties. With no final judgment before us, we dismiss the interlocutory appeal.

In State of Indiana v. Tyson Timbs and a 2012 Land Rover LR2, a 13-page, 2-1 opinion, Judge Mathias writes:
The State of Indiana filed a complaint for forfeiture in Grant Superior Court seeking to obtain a 2012 Land Rover LR2 owned by Tyson Timbs (“Timbs”). The trial court ruled in favor of Timbs, and the State appeals, presenting one issue, which we restate as whether the trial court erred in concluding that forfeiture of Timbs’s vehicle would constitute a constitutionally excessive fine. We affirm. * * *

Forfeiture of the Land Rover, which was worth approximately four times the maximum permissible statutory fine, was grossly disproportionate to the gravity of Timbs’s offense. We therefore affirm the trial court’s conclusion that forfeiture of the Land Rover violated the Excessive Fines Clause of the Eighth Amendment.

Vaidik, C.J., concurs.

Barnes, J., dissents with opinion. [that begins, on p. 12, and concludes] I am keenly aware of the overreach some law enforcement agencies have exercised in some of these cases. Entire family farms are sometimes forfeited based on one family member’s conduct, or exorbitant amounts of money are seized. However, it seems to me that one who deals heroin, and there is no doubt from the record we are talking about a dealer, must and should suffer the legal consequences to which he exposes himself.

Timbs dealt heroin and got caught. I vote to reverse the trial court’s denial of the State’s forfeiture request.

NFP civil decisions today (3):

Michael A. Wilson v. State of Indiana and Allen County Courts (mem. dec.)

Sondra Rabin v. S.T.M. Enterprises, LLC (mem. dec.)

Eric Leo Kamradt v. Theresa Ann Kamradt (mem. dec.)

NFP criminal decisions today (10):

State of Indiana v. Kevin Ford (mem. dec.)

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

Clifford M. Lawrence v. State of Indiana (mem. dec.)

Ra'Dreeka Gillespie v. State of Indiana (mem. dec.)

Bernie C. Harmon v. State of Indiana (mem. dec.)

Johnny Dutrayl McSwain v. State of Indiana (mem. dec.)

Jeffrey S. Heironimus v. State of Indiana (mem. dec.)

Timothy Hooker v. State of Indiana (mem. dec.)

Elijah Roberson v. State of Indiana (mem. dec.)

Dyshaun Tyrell Elliott v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, October 20, 2016
Posted to Ind. App.Ct. Decisions

Wednesday, October 19, 2016

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

For publication opinions today (6):

In Central Indiana Podiatry, P.C., Northwest Surgery Center, LLC, d/b/a Foot & Ankle Surgery Center, f/k/a Foot & Ankle Surgery Center, LLC and Anthony E. Miller, D.P.M. v. Barnes & Thornburg, LLP, a 23-page ruling with two opinions, Judge May writes:

Central Indiana Podiatry, P.C. (“CIP”), Northwest Surgery Center, LLC d/b/a Foot & Ankle Surgery Center f/k/a Foot & Ankle Surgery Center, LLC (“FASC”), 1 and Anthony Miller, D.P.M. (“Miller”) (collectively “the Miller Parties”) appeal summary judgment for Barnes & Thornburg, LLP (“B&T”). The Miller Parties present multiple issues for our review, which we consolidate and restate as: 1. Whether the Miller Parties’ allegations of fraud preclude B&T from relying on the Release Agreement; and 2. Whether the terms of the Release Agreement preclude the Miller Parties from suing B&T for the alleged acts of malpractice. We affirm.

B&T had provided legal services to Miller, as owner and sole shareholder of CIP and FASC, since the early 1990’s. The current case stems from a disagreement regarding legal fees. * * *

The Miller Parties did not properly present their fraud claims to the trial court because they did not do so in a pleading. The trial court did not err when it granted summary judgment in favor of B&T because the Release Agreement prohibits the Miller Parties from suing B&T for actions taken in the Vogel Federal Litigation. Accordingly, we affirm.

Bailey, J., concurs.
Crone, J., concurs with separate opinion. [that begins, on p. 20] I agree with my colleague’s resolution of the issues presented in this appeal. I write separately, however, to question the wisdom of allowing attorneys to prospectively insulate themselves from liability for future acts of legal malpractice. * * *

Legitimate arguments can be made that lawyers should be allowed to limit liability to clients for past acts of malpractice in arm’s-length negotiations involving independent counsel; this is nothing more than the settlement of an existing claim. But, in my view, allowing lawyers to prospectively limit liability to clients for future acts of malpractice subverts the very nature of the attorneyclient relationship. Until and unless our supreme court abolishes this practice, Hoosiers seeking competent and diligent legal representation may be left to fend for themselves against lawyers who wish to avoid liability for future acts of malpractice.

In Kevin L. Snyder v. Anastasia Snyder, an 8-page opinion, Judge Altice writes:
Kevin L. Snyder (Husband) appeals from the trial court’s order dissolving his marriage to Anastasia Snyder (Wife). Concluding sua sponte that this appeal is untimely, we dismiss.

Because Husband’s motion to reconsider was deemed denied months earlier, his notice of appeal therefrom was untimely. Timeliness aside, the September 29, 2015 order was neither a final judgment nor an appealable interlocutory order. The order was not a final judgment for the same reason as the March 30, 2015 order—it left the valuation and distribution of the Vehicles for a later date and it did not include the “magic language” set forth in T.R. 54(B). Nor does the September 29, 2015 order fall within any of the App. R. 14(A) categories for interlocutory appeals as of right—unlike the March 30, 2015 order, the trial court’s ruling on the motion to reconsider did not include an order for the payment of money. Finally, Husband has not sought or obtained the requisite authorization to pursue a discretionary interlocutory appeal pursuant to App. R. 14(B). Thus, to the extent this is an appeal from the September 29, 2015 order, we lack jurisdiction to entertain it. Appeal dismissed.

In T.A. v. State of Indiana, an 8-page opinion, Sr. Judge Barteau writes:
T.A. appeals the juvenile court’s denial of his petitions for expungement in six juvenile proceedings. We reverse and remand with instructions.

T.A. raises one question of law, which we restate as: whether the juvenile court erred in denying his petition for expungement. * * *

Next, T.A. argues that pursuant to the plain language of the statute, the trial court should have granted the petition because T.A. did not have any pending charges when he filed it. The State responds that, pursuant to statute, the juvenile court was permitted to consider T.A.’s post-petition criminal charge. * * *

The State asserts it would be absurd for the trial court to be allowed to schedule a hearing but disallowed from considering criminal charges that were filed after the petitioner filed the petition for expungement. However, the plain language of section 35-38-9-1(e), as applied to the consideration of whether a petition meets the requirements for expungement, does not contradict any other portion of the statute or the act as a whole. As a result, we must apply the plain language of the statute without recourse to the rules of statutory construction, and we will not read into the statute “a legislative intent other than that which is clearly stated.” Trout v. State, 28 N.E.3d 267, 271 (Ind. Ct. App. 2015). We conclude the court should have determined whether there was a pending criminal charge at the time the petition was filed, as opposed to a later date. As a result, the court erred here in considering T.A.’s post-filing criminal charge. See id. at 272 (trial court that denied petition for expungement erred in considering evidence of another violent act by petitioner that did not result in a conviction, even though the petitioner did not deny committing the act). The State does not claim that T.A.’s petition violated any other provisions of Indiana Code section 35-38-9-1. We must reverse the denial of the petition.

In State of Indiana v. Charles Summers , a 9-page opinion, Chief Judge Vaidik writes:
After being ordered to register as a sex offender in Illinois for ten years, Charles Summers moved to Indiana. Summers later registered as a sex offender in Indiana. When Indiana applied its tolling statute to Summers (in order to extend Summers’ registration period by the amount of time he was incarcerated in Indiana for new crimes committed), Summers claimed that applying the statute to him violated Indiana’s prohibition against ex post facto laws. He argued that when he committed his underlying offense in Illinois, Indiana had not yet enacted its tolling statute. Because Summers was under a tolling requirement in Illinois, we find no punitive burden to maintaining that requirement across state lines. Because there is no ex post facto violation, we reverse the trial court and remand this case. * * *

First, as in Tyson, Summers was a sex offender in Illinois; by moving across state lines, Summers merely maintained his sex-offender status. Second, although Indiana adopted its tolling provision several years after Summers was adjudicated a juvenile delinquent in Illinois, Summers was already under a tolling requirement in Illinois. There is no punitive burden to maintaining both of these requirements across state lines. Because Summers has not established an ex post facto violation, we reverse the trial court’s dismissal of the criminal charges against Summers in Cause No. F6-233 and reverse the trial court’s grant of Summers’ petition to remove his name from the sex-offender registry in Cause No. MI-70. Reversed and remanded.

In Ryan Clark v. State of Indiana, a 6-page opinion, Judge Pyle writes:
Following his participation in a horrific home invasion, Ryan Clark (“Clark”) was convicted of the following sixteen offenses: (1) two counts of rape as Class A felonies; (2) three counts of criminal deviate conduct as Class A felonies; (3) five counts of confinement as Class B felonies; (4) one count of robbery as a Class C felony; (5) one count of carjacking as a Class C felony; (6) two counts of battery as Class C felonies; and (7) two counts of battery as Class A misdemeanors. He now appeals those convictions and argues that the evidence is insufficient to support them. Specifically, he contends that the testimony of victim A.M. (“A.M.”) was incredibly dubious. Finding that the incredible dubiosity rule does not apply in this case, we affirm Clark’s convictions. * * *

Here, our review of A.M.’s testimony reveals that the incredible dubiosity rule simply does not apply in this case. A.M.’s testimony was not inherently contradictory. She never wavered in her identification of Clark and had several opportunities to view his uncovered face, including three times in well-lit conditions. Further, the identifiable mark on Clark’s hip as well as DNA evidence implicating his friend provided circumstantial evidence of Clark’s guilt. Clark’s suggestions that A.M. was too distraught to make a reliable identification or that there was not enough light for her to clearly see the intruders are requests for us to reweigh the evidence. This we cannot do.

In Edward A. Holt, Jr. v. State of Indiana , a 10-page opinion, Judge Pyle writes:
Edward A. Holt, Jr., (“Holt”) appeals his sentence imposed after his guilty plea to two counts of Class C felony child molesting.1 On appeal, he asks us to find that his four year sentence was inappropriate and to reduce or suspend it accordingly. In response, the State requests that we also find Holt’s sentence inappropriate but that we increase it to six years for each conviction. Because we do not find that Holt’s sentence was inappropriate, we affirm. * * *

In light of the nature of Holt’s offenses and his character, we cannot agree with him that his sentence was inappropriate and warrants a reduction in his sentence. As we have also determined that we will not increase his sentence, we affirm the trial court.

NFP civil decisions today (4):

E.F. v. Indiana Department of Child Services (mem. dec.)

Beverly R. Newman v. Meijer, Inc. (mem. dec.)

In the Matter of the Involuntary Term. of the Parent-Child Relationship of A.B. and A.B. (Minor Child) and their Father J.B., J.B. (Father) v. Ind. Dept. of Child Services (mem. dec.)

Gladys Hale and Oma Bolen v. Ricky Handshoe, Gary Handshoe, and Bertha Jimeniz (mem. dec.)

NFP criminal decisions today (5):

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

Leah S. Fink v. State of Indiana (mem. dec.)

Natasha Peters v. State of Indiana (mem. dec.)

Dorris Latrese Dooley v. State of Indiana (mem. dec.)

Jack Hiatt v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, October 19, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "Allowing guns in parks proposed" in Fort Wayne

This Oct. 12th ILB post reported the effort in Fort Wayne to "remove language in the city code prohibiting residents from carrying firearms in city parks" and noted that "This story may sound familiar to many ILB readers who recall similar issues involving Hammond and Evansville," going on to discuss a similar situation in Hammond that resulted in a 3/15/13 COA opinion, Dykstra v. The City of Hammond.

Today Dave Gong reports in the Fort Wayne Journal Gazette:

In a 6-3 preliminary vote Tuesday, the Fort Wayne City Council approved changes to a city ordinance banning firearms from city parks.

The proposal brought forward by Councilman Jason Arp, R-4th, will remove firearms from a list of items including paint ball guns, BB guns and fireworks that are prohibited from city parks. Arp and supporters of the change say the update is necessary to bring the ordinance into line with state law and possibly avoiding future costs in legal fees.

“The reason why is it is a violation to Indiana Code 35-47-11.1, which prohibits local units from the regulation of firearms,” Arp told the council. * * *

[However] Changing the law won’t have an actual impact on city policy, since changes to state law in 2011 regarding the carrying of firearms in public spaces supersede local ordinances, city attorney Carol Helton said.

“Because our ordinance predates the adoption of the state law, … it is not a violation of the state law for that ordinance to remain as written,” Helton said, citing the 2013 case Dykstra v. City of Hammond.

Dykstra states, “regardless of whether the Ordinances were still in the Hammond Municipal Code, they became void upon the effective date of Indiana Code chapter 35-47-11.1. An individual cannot be adversely affected by a void ordinance, because by its very nature, a void ordinance is “[o]f no legal effect; null.”

Therefore, taking the word “firearm” out of the city ordinance would have no legal impact whatsoever, Helton said.

Posted by Marcia Oddi on Wednesday, October 19, 2016
Posted to Indiana Government

Ind. Gov't. - More on "Monroe County treasurer candidate's campaign signs go viral"

Updating this post from yesterday, the $$ Bloomington Herald-Times editorializes today:

Republican candidate for county treasurer Ann Collins has made a couple of simple statements on a billboard. She says “I won’t steal and I know how to count.”

The social media world and some heavy hitters in the national media, including ABC News, have covered the candidate’s direct, no-frills approach. The implication is that these simple promises are kind of funny in a campaign for a public office that so clearly handles public money. Not stealing and knowing how to count should be givens, right?

If they knew of the recent history of some of the people elected to public offices that oversee taxpayer funds in Monroe County, they wouldn’t be laughing.

The Collins campaign is clever, but it makes a serious point about the performance and honesty of too many public officials in the past few elections.

Posted by Marcia Oddi on Wednesday, October 19, 2016
Posted to Indiana Government

Ind. Courts - "Judge: Made decision with tragic result"

Renee Bruck reported yesterday afternoon in the Madison Courier:

Jefferson Superior Court Judge Michael Hensley explained his decision to deny a warrant request on a stalking charge more than a week after an ongoing domestic abuse case turned fatal.

Hensley issued a statement Monday concerning the stalking case filed against Anthony Russell just days before officials believe he killed his wife before killing himself.

Officials found Anthony Russell, 51, of Deputy, dead from a self-inflicted gunshot wound Oct. 7 in the 800 block of West Second Street. Less than two hours later, police and the Jefferson County Coroner found 44-year-old Laura Russell dead from multiple stab wounds at the Russell residence in Deputy. * * *

The two deaths came just days before Anthony Russell was due to appear in Jefferson Superior Court for an initial hearing on a felony charge of stalking after allegedly violating a court-ordered no-contact order with his wife.

Prosecutors requested a warrant be issued in the stalking case, but Hensley denied the request and issued a summons for Anthony Russell to appear in court following a three-day holiday weekend.

[Judge] Hensley’s decision to summons the man to court caused some to question why a warrant wasn’t issued sooner.

The story continues with long statements from both Judge Hensley and Jefferson County Prosecutor Chad Lewis. Judge Hensley writes in part:
When I do not find probable cause on a warrant request, I will now issue an order for a hearing to be held on the same day as the warrant request. I am hopeful the new procedure prevents a similar tragedy in the future.
Prosecutor Lewis writes in a long statement that begins:
The prosecutor’s office welcomes any procedure changes the judge is willing to make in an effort to prevent a similar tragedy in the future. The judge acknowledging that court procedure could help prevent another tragic decision is a step forward to combat domestic violence and aid in public safety. We look forward to being involved in that discussion and have several suggested changes.
A story from KREM2 News by Shay McAlister begins:
MADISON, Ind. (WHAS11) – More than a week after the controversial death of Laura Russell, Jefferson County Indiana Superior Judge Michael Hensley has released a statement in explaining his decision as it relates to the incident.

According to police, Anthony Russell attacked his estranged wife in her home, stabbing her multiple times, killing her and then killing himself. The incidents occurred on Oct. 7. The day before Laura’s murder, court documents show the Jefferson County Indiana Prosecutor filed felony 5 stalking charges and a motion to have Anthony arrested. Hensley denied that motion.

In a statement delivered to the Madison Courier on Monday, Hensley said, “I made what I thought to be the correct legal decision. Obviously I made a decision that had the most tragic result possible. “

Posted by Marcia Oddi on Wednesday, October 19, 2016
Posted to Indiana Courts

Ind. Decisions - Still more on: 7th Cir. to rehear Ivy Tech anti-gay employment discrimination case en banc

Updating this ILB post from Oct. 12th (last week), the 7th Circuit on Tuesday, Oct. 11th announced that it had granted an en banc rehearing of Kimberly Hively v. Ivy Tech Community College, and vacated the earlier panel decision.

Katelyn Haas of the Indiana Daily Student reports today in a story headed "Ivy Tech releases transgender inclusive policy while facing discrimination lawsuit," that:

Ivy Tech released a new policy this week to protect transgender and gender nonconforming students and faculty from discrimination, 
according to a press release.

The policy guidelines 
require all school records to reflect the student’s gender and name, allow students to use the facilities that match their gender identity, and grant transgender and gender nonconforming students the right to express their 
gender identity openly or keep it private, as well as to be addressed by the name and pronouns that correspond to their gender identity.

It also protects them from administrators, faculty or staff from revealing an individual’s transgender status or gender non-conforming presentation to others unless the individual requests or consents to such disclosure.

Chris Paulsen, campaign manager of Freedom Indiana, said the new policy is fully inclusive.

“It’s the strongest policy in the state, actually,” Paulsen said. “It discusses both gender pronouns, name changes. It’s very strong. We’re pretty happy.”

The policy went into effect July 1 and was announced last week. Fanter said Ivy Tech values and embraces diversity. He said the college follows an equal opportunity policy that explicitly prohibits employment discrimination based upon a person’s sexual orientation.

Megan Holden of the Lafayette Journal & Courier also reported on this policy in a story this week:
Ivy Tech Community College has a new policy [copy here] in place to protect transgender and gender nonconforming students.

The statewide college system adopted a guideline that lays out the rights of students with the goal of creating a safe campus community for transgender and gender nonconforming students, Ivy Tech spokesman Jeff Fanter said. It was implemented in July but was only recently made public by advocacy group Freedom Indiana.

"The policy provides a beginning framework for transgender individuals and campus leaders and builds upon Ivy Tech's position of national leadership in higher education by signifying that our LGBTQ students and employees are of vital importance," Fanter wrote in an email interview. * * *

Ivy Tech is facing a lawsuit against a former part-time instructor from the South Bend who's accusing the school of failing to hire her full-time because she is a lesbian.

The suit was dismissed in July because federal law doesn't protect employees from workplace discrimination based on sexual orientation. The 7th U.S. Circuit Court of Appeals in Chicago last week agreed to review the case again. Judges won't examine whether Kim Hively has evidence of discrimination but rather whether she should be allowed to try to prove the claims, the IndyStar reported.

Ivy Tech denies the allegations.

"Ivy Tech Community College values and embraces diversity," Fanter wrote in an email. "It is an equal opportunity employer that does not condone, and in fact explicitly prohibits, employment discrimination based upon a person's sexual orientation."

Posted by Marcia Oddi on Wednesday, October 19, 2016
Posted to Ind. (7th Cir.) Decisions | Indiana Government

Tuesday, October 18, 2016

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

For publication opinions today (1):

In State of Indiana ex rel. Indiana Department of Transportation v. Joshua Dehaven and FBi Buildings, Inc. , a 10-page opinion, Judge Riley writes:

Appellant-Plaintiff, State of Indiana, ex rel. Indiana Department of Transportation (INDOT), appeals the trial court’s denial of its motion for summary judgment in favor of Appellees-Defendants, Joshua DeHaven and FBi Buildings, Inc. We affirm.

INDOT raises two issues on appeal, one of which we find dispositive and which we restate as: Whether INDOT is entitled to recover, as a matter of law, the actual cost incurred to repair the bridge after DeHaven struck it with his trailer. * * *

INDOT contends that the trial court erred when it denied its summary judgment on damages. It asserts that as a tort victim, INDOT must be restored to the position it held prior to DeHaven’s negligence and, therefore, it is entitled to recover the actual cost of repairs, which constitute reasonable damages as a matter of law. However, Appellees respond that once INDOT submitted evidence of the costs to repair the damage to the bridge, Appellees “were afforded an opportunity to designate evidence establishing that the value of the damage sustained was less than the cost evidence tendered by [INDOT], . . . by demonstrating that INDOT had failed to reasonably mitigate its damages.” * * *

While we agree with INDOT that Appellees must take their victim as they find it, we also point out that a victim is under a duty to mitigate damages.

NFP civil decisions today (2):

In the Matter of the Guardianship of A.P., Adult, Louisa Jurich v. Louis Picicco (mem. dec.)

In Re the Matter of the Termination of the Parent-Child Relationship of: G.S. and B.S. (Minor Children), And N.S. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (5):

Cassidi Mosier v. State of Indiana (mem. dec.)

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

Lynn K.C. Sines v. State of Indiana (mem. dec.)

Phillip D. Martin v. State of Indiana (mem. dec.)

Bennie Truth v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, October 18, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "We have come a long way since the days of sitting in the gallery and carefully noting floor votes by hand"

Although I remember those days, that is not the point of this long September Government Technology article by Eyragon Eidam. The point:

While the general design of a website is important to an end user, access to the meat of it all is the important part to government watchdog group the Sunlight Foundation.

“The advice that we have given, particularly as different government agencies come to us and [ask], ‘How can we make our website more functional?’ [is] we often point out that the best way to do this cheaply … is to improve the accessibility of your data so that at least it can get used,” said Sunlight Senior Analyst Emily Shaw.

In releasing data, whatever it may be, Shaw argues that other groups outside of government may be able to translate that data into usable information for other constituents. While an easy-to-navigate website is an added bonus, it means nothing if there’s no substance behind it.* * *

The Center for Data Innovation agrees that there’s work to be done in making more of the legislative process publicly available. Director (and GovTech columnist) Daniel Castro said there are gaps in the process, especially when it comes to things like scanning handwritten notes and committee votes.

He sees this as cause for collecting more digitally. “Right now in some states you’ll basically have handwritten changes to bills or things like that where it is not being captured electronically — especially committee votes — so it’s hard to actually see that process if the information isn’t digital. Capturing the data well in a digital format is another big thing we are looking at.”

In some states, bills are regularly posted as PDFs, which Castro said is a clear indicator that legislatures need to update their systems. The format can make finding information a laborious and difficult process.

“These types of things are a huge impediment to transparency,” he said.

Posted by Marcia Oddi on Tuesday, October 18, 2016
Posted to Indiana Government

Ind. Gov't. - "Monroe County treasurer candidate's campaign signs go viral"

The story by Ernest Rollins is in the $$ Bloomington Herald-Times. A quote from the story:

Republican candidate for Monroe County treasurer Ann Collins has two billboards in Bloomington promoting her campaign. * * *

The billboards alert the public to a simple message about Collins’ campaign — “I won’t steal and I know how to count.” Collins said that message is a shorter version of her campaign slogan. She added it is meant to illustrate two things about her campaign to the voter in a simple, direct way: that she is qualified and she is an honest person.

Posted by Marcia Oddi on Tuesday, October 18, 2016
Posted to Indiana Government

Law - Algorithms ... Is there a problem?

The ILB has had several earlier posts on the use of predictive algorithms in sentencing and in the use "black boxes" (proprietary software) in evidence determinations. Here are some related stories:

Posted by Marcia Oddi on Tuesday, October 18, 2016
Posted to General Law Related

Monday, October 17, 2016

Environment - "Indiana wind turbines blades revolving slower to protect endangered bats"

Christopher Stephens of CNHI News Service reports in a long story that begins:

ELWOOD — With Halloween just around the corner, it’s not unusual to see a plastic bat hanging from a doorway or window.

But for many of the real-life nocturnal mammals in Indiana, October also means migration season and a potential for mass killing of the animal by wind farms.

Between 600,000 and 900,000 bats are killed in the United State each year by wind turbines, according to a study published in the academic journal Bioscience. Many are killed through collisions with whirling blades or through barotraumas, the technical term for internal injuries to an animal when it passes through low-pressure zone created in the wake of a spinning turbine.

“Wind farms really impact the migratory bats – they are getting absolutely hammered,” said Tim Carter, who runs Ball State University’s bat laboratory.

Though all migratory species of bats are susceptible, the deaths in Indiana are particularly damaging to the endangered Indiana bat and northern long-eared bat, which are already facing declining numbers because of the deadly white-nose fungal disease that is decimating Hoosier roosting areas.

More from the leng story:
The Fowler Ridge Wind Farm, which operates 355 turbines in Benton County, worked with the U.S. Fish and Wildlife Service to develop a plan to reduce fatalities by 50 percent. The plan requires that turbines be shut down and turned perpendicular to the wind during low-wind times between sunset and sunrise.

Last year, 118 bat carcasses were found around turbines between Aug. 1 and Oct. 14, according to the company’s take report.

The idea behind Incidental Take Permits is to mitigate deaths while still allowing the clean-energy companies to operate economically, Georgia Parham, a representative of the U.S. Fish and Wildlife Service, said.

Posted by Marcia Oddi on Monday, October 17, 2016
Posted to Environment

Ind. Law - "Counselor: Sexting issue has reached 'boiling point' among youths"

Rebecca R. Bibbs of The Anderson Herald Bulletin has a long story on sexting and efforts to education young people about the legal implications. Some quotes:

ANDERSON – The questions asking whether young people could be arrested for possession or distribution of child pornography and be labeled a sex offender popped up on the screen in the darkened band room at Highland Middle School.

As they did, 30 or so girls twittered among themselves, hitting a button on their Chromebooks to answer whether they thought the statements were true or false.

“Two children exchanging sexts, that’s illegal,” confirmed Julie Coon of Kids Talk. A program of Aspire, Kids Talk allows children to discuss abuse they have experienced in a safe environment.

She spent four days at the school ushering each student through one of six sessions on sexting and social media use. The program is one used for the first time at middle schools throughout Madison County. * * *

Though most people may associate sexting primarily with cellphone use, the term also can apply to the transmission of images and written messages by way of email, instant messaging and social media. The term can apply to the person who creates the image or message, the recipient of the image or message or a person who forwards an image or message.

“Sexting has become such a big issue among youth in Madison County, it’s reached a boiling point,” Coon said.

She said many young people reported they didn’t understand the transmission of nude or semi-nude images was against the law.

“One of the reasons we created the program is to take that excuse away,” she said.

Posted by Marcia Oddi on Monday, October 17, 2016
Posted to Indiana Law

Law - "Missing From Hacked Emails: Hillary Clinton Herself"

This story on p. 6 of today's $$ WSJ, reported by Peter Nicholas, Colleen McCain Nelson and Byron Tau, gives valuable insight into the Clinton campaign's decision-making process. A sample:

The emails, hacked from campaign chairman John Podesta’s private account, depict an operation that treats Mrs. Clinton as something of a board chairman or perhaps a sitting president. There is a formality to dealings with the ex-first lady and secretary of state. Her own campaign manager, Robby Mook, has sent her notes addressing her as “Madame Secretary.” * * *

Conference calls with Mrs. Clinton have been highly scripted, emails show. Staffers planned out the agendas of calls in advance, according to the messages.

Calendar invitations included among the Podesta emails show calls with Mrs. Clinton that routinely included a wide circle of advisers. One call from March 2016 included 24 advisers, consultants and staffers. * * *

One of her closest confidants, Huma Abedin, said in an interview: “It does take a village to support Hillary Clinton.”

This seems a remarkable contrast to the opposition campaign.

Posted by Marcia Oddi on Monday, October 17, 2016
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (1):

In Charles J. Davis Sr. v. Jay Phelps, Bartholomew County Clerk , a 4-page opinion, Judge Baker writes:

Charles Davis Sr. appeals the trial court’s order dismissing his complaint for failure to make a timely payment of filing fees. Finding that the trial court was statutorily required to give Davis forty-five days to make the payment, but gave him only thirty days, and that Davis made the required payment within fortyfive days, we reverse and remand. * * *

In this case, the trial court gave Davis only thirty days from the date of the order denying his motion for waiver of the partial filing fees to make the required payment. Based on the plain language of the relevant statute, Davis should have been afforded at least forty-five days. And the trial court did, in fact, receive Davis’s payment on April 11, 2016—less than forty-five days after March 2, 2016, when the order was entered. Given the plain language of Indiana Code section 33-37-3-3(d), we reverse the trial court’s order dismissing Davis’s complaint and remand with instructions to Davis to re-send the filing fee of $17.18 within forty-five days of the certification of this decision and for further proceedings.

NFP civil decisions today (0):

NFP criminal decisions today (6):

Mark T. Hager v. State of Indiana (mem. dec.)

Tyrice Halliburton v. State of Indiana (mem. dec.)

Mark A. Drescher v. State of Indiana (mem. dec.)

Warren Parks v. State of Indiana (mem. dec.)

Matthew S. Wagoner v. State of Indiana (mem. dec.)

Jeffrey S. Heironimus v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, October 17, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "A study of four Indianapolis area hospitals this year found one in five newborns were born with opiates — from heroin or prescription painkillers — in their bloodstreams"

Maureen Hayden of CHNI newspapers reports again on the opiate crisis in Indiana and other states. A sample:

[T]he overflow crowd that had gathered at the Indiana Convention Center were there for a grim reason: Tied by profession or interest in some way to the problem of drug addiction, they knew the opiate epidemic gripping Indiana appears to be getting worse, not better, as evidence by increasing reports of heroin and prescription painkiller overdoses this past year.

In Indianapolis alone, police and rescue workers are on a record pace to revive over 1,500 overdosed addicts this year.

That number only hints at the reality of addiction's harmful reach: A study of four Indianapolis area hospitals this year found one in five newborns were born with opiates — from heroin or prescription painkillers — in their bloodstreams and had to be treated for drug withdrawal.

"I don't have much reason to feel optimistic," said [Indiana Attorney General Greg Zoeller], who's been an ardent advocate of more resources for addiction prevention and treatment since soon after taking office.

Posted by Marcia Oddi on Monday, October 17, 2016
Posted to Indiana Government

Ind. Decisions - "Widow wins $2M verdict against IU Health"

Shari Rudavsky has a good recounting of a trial court jury verdict in this Oct. 14th Indianapolis Star story. A sample:

Late last week, after deliberating for 2½ hours, a jury returned a $2 million verdict against Indiana University Health Methodist Hospital for Smith’s death in December 2006.

The decision, which took 10 years, in part because the first judge assigned to the case retired, came as long-awaited relief to Monica Smith, who lost her car and house after her husband died at age 45. Under Indiana law, the verdict will be capped at $1.25 million, but that doesn’t bother Smith.

“It’s never been about the financial part. It’s always been about justice for Vincent,” Smith said. “I’m glad I was able to get a jury to actually hear me. … They got to hear me. They got to hear what I was saying. They came back with the verdict I have always known I had.” * * *

In the middle of the night of Dec. 19, Smith was found unresponsive. Attempts to revive him using a drug to reverse the effects of morphine failed. Immediately after Smith died, the pump, which might have revealed how much morphine he had received, was cleaned and Smith’s data erased.

Scott Benkie, Monica Smith’s attorney, argued that in doing so the hospital destroyed data that could have been relevant in determining why Vincent Smith died, a legal term known as “spoliation of evidence.” An autopsy showed Smith had four times the average dose of morphine in his blood at the time of his death.

IU Health disputed the hospital had done anything wrong.

Hospital procedure called for pumps to go immediately for cleaning and redistribution as soon as they were available without recording any data from the device, hospital officials said.

Posted by Marcia Oddi on Monday, October 17, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Transfer list for week ending October 14, 2016 [Updated]

Here is the Clerk's transfer list for the week ending Friday, October 14, 2016. It is one page (and 1 case) long.

One transfer granted last week:

ILB Note: The ILB transfer list entry for Oct. 7th commented:

Interestingly, as of this writing, the Oct. 3rd order of the Supreme Court denying transfer, by a vote of 3-2, in the Parkview Hospital case, is not listed on this Oct. 7th transfer list. The ILB wrote about the denial on Oct. 6th and Oct. 10th.
The Parkview transfer denial is not included in this week's new list either... Did including the Parkview denial on a transfer list simply slip through the cracks?

[Updated 10/18/16] The Court's October 7th transfer list has now been corrected with the addition to the list of the Oct. 3rd denial of transfer in the Parkview Hospital case.

Posted by Marcia Oddi on Monday, October 17, 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 10/17/16):

Thursday, October 20

Next week's oral arguments before the Supreme Court (week of 10/24/16):

Thursday, October 27

Webcasts of Supreme Court oral arguments are available here.




This week's oral arguments before the Court of Appeals (week of 10/17/16):

Wednesday, October 19

Friday, October 21

Next week's oral arguments before the Court of Appeals (week of 10/24/16):

Tuesday, October 25

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, October 17, 2016
Posted to Upcoming Oral Arguments

Friday, October 14, 2016

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

For publication opinions today (3):

In William Brandon, Jr. and Sarah Brandon v. Buddy & Pal's III, Inc., d/b/a Buddy & Pal's Place and Thomas Walker, an 11-page opinion, Chief Judge Vaidik writes:

William Brandon Jr. was injured in a bar fight. He sued Thomas Walker—the person who hit him—and the bar where the fight occurred. Although Walker failed to file an answer and was found to be in default, Walker appeared for trial three years later and represented himself, disputing his liability. During closing argument, Brandon’s attorney urged the jury to find that the bar was 85% at fault and that Walker was only 15% at fault. The jury, however, found that Brandon himself was 100% at fault. Brandon then filed a motion to correct error arguing that the default established Walker’s liability and that the only thing left to be determined was damages. The trial court found that Brandon waived this issue.

We agree with the trial court that Brandon waived this issue. That is, because Brandon did not object to Walker participating in the trial, did not argue the effect of Walker’s default at trial, and asked the jury to find that Walker was 15% at fault, he cannot now fall back on the position that Walker is 100% at fault (based on the default). We therefore affirm the trial court.

In Kent R. Blair, Sr. v. State of Indiana, a 12-page opinion, Judge Robb writes:
Following a bench trial, Kent Blair was convicted of invasion of privacy, a Level 6 felony, and criminal trespass, a Class A misdemeanor. The trial court sentenced Blair to one and one - half years executed in the Indiana Department of Correction. Blair ap peals his convictions and sentence, raising three issues for our review: (1) whether the evidence is sufficient to sustain his convictions, (2) whether the trial court abused its discretion in sentencing him, and (3) whether his sentence is inappropriate i n light of the nature of the offenses and his character. Concluding the evidence is sufficient, the trial court did not abuse its discretion in sentencing Blair, and his sentence is not inappropriate, we affirm.
In Adam K. Baumholser v. State of Indiana , a 13-page opinion, Judge May writes:
Adam K. Baumholser appeals his convictions of three counts of child molesting, one as a Class A felony and two as Class C felonies. As the admission of certain character evidence and forensic interviewer testimony was not fundamental error, and as Baumholser’s sentence was neither inappropriate nor an abuse of discretion, we affirm.
NFP civil decisions today (4):

In re the Termination of the Parent-Child Relationship of R.Q. and N.Q.: K.Q. (Mother) v. Indiana Department of Child Services (mem. dec.)

In the Matter of: V.K. (Minor Child), Child in Need of Services, and M.V. (Mother) v. The Ind. Dept. of Child Services; M.V. v. J.K. (mem. dec.)

In the Guardianship of S.S. and J.N., Minor Children, Marla New v. Kenneth Scrogham and Teresa Scrogham (mem. dec.)

Rachelle L. Purcell v. Gary A. Purcell (mem. dec.)

NFP criminal decisions today (8):

Walter Ward, III v. State of Indiana (mem. dec.)

Mark Madejek v. State of Indiana (mem. dec.)

Herbert Lee Brown, III v. State of Indiana (mem. dec.)

Ronald Weaver v. State of Indiana (mem. dec.)

Dakota Fraley v. State of Indiana (mem. dec.)

Jasmine Sivels v. State of Indiana (mem. dec.)

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

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

Posted by Marcia Oddi on Friday, October 14, 2016
Posted to Ind. App.Ct. Decisions

Law - "David McCraw, a newsroom lawyer for The Times, describes the mosaic of legal issues that he encounters on a typical day"

"FOIA, Subpoenas and Singapore’s Libel Laws: All in a Day’s Work," is the heading to this long "Times Insider" column from August 10, 2016. A sample:

Libel suits are rare — our only active case was just dismissed by a judge in New Orleans — but a steady stream of complaint letters find their way to my desk and need to be dealt with. Some are rants, some are detailed and well-researched lawyer letters. And then there is the person who claims to have uncovered a secret code in a Tweet posted by a Times columnist.

In recent years, I have spent increasing amounts of time waging legal battles against secrecy, seeking to open court files or get documents for our reporters through the Freedom of Information Act. We sue — a lot. And we’re pretty much alone. The last time we checked the statistics, The Times had filed 14 federal FOIA suits over a two-year period; our peers in the mainstream media had filed a total of six altogether.

This column became newly relevant because of the letter New York Times VP and Assistant General Counsel David McCraw sent to Donald Trump’s legal team in response to a retraction request about The Times’s article "Two Women Say Donald Trump Touched Them Inappropriately."

Posted by Marcia Oddi on Friday, October 14, 2016
Posted to General Law Related

Courts - "Louisville panhandling law struck down"

Recall this August 9, 2015 ILB post headed "7th Circuit Invalidates Anti-Panhandling Ordinances After Reed v. Town of Gilbert" and this August 17, 2015 update.

Today Andrew Wolfson reports in the Louisville Courier Journal:

One day before the Kentucky Supreme Court weighs the constitutionality of Lexington’s panhandling ordinance, a Jefferson District Court judge Thursday struck down Louisville’s ordinance.

Judge Eric Haner held that Louisville’s “aggressive panhandling” ordinance enacted in 2007 is unconstitutional because any crime that carries the penalty of incarceration must be the product of the General Assembly. * * *

In the case pending before the state Supreme Court, an attorney for Dennis Champion also argues that the ordinance usurps the power of the legislature to enact criminal laws. Champion’s lawyer, Linda Roberts Horsman, says the Lexington ordinance is “patently unconstitutional because it criminalizes speech” in violation of the First Amendment.

There is much to read in both today's story and the linked earlier story on the case pending before the Kentucky Supreme Court.

Posted by Marcia Oddi on Friday, October 14, 2016
Posted to Courts in general

Ind. Gov't. - "State PAC advises Newburgh to provide public emails to C&P"

Shannon Hall reports today in the Evansville Courier & Press (C&P):

After attempting to charge the Courier & Press hundreds of dollars for access to Newburgh town emails, the town will provide the emails at no cost after the Indiana Public Access Counselor considered it a block of access.

"We received the ruling and we are prepared to provide you with your requested emails. We will get with our IT contractor to pull the emails off the server at no charge per the opinion of the public access counselor," Newburgh Town Manager Christy Powell states in an email sent Thursday.

Later Thursday, Powell issued this statement:

"As you know, the Town of Newburgh is always prepared to provide requested public records in a timely manner. The only question was one of who should bear the cost of these requests, the requester (In this case The Courier) or the taxpayers," the statement reads. "The Public Access Counselor has determined that it is the taxpayers. The Town will abide by the ruling and will charge the Courier only $.10 per page as required by the opinion."

In his decision, the access counselor said Newburgh's attempt to charge hundreds of dollars was, in effect, an attempt to charge the taxpayers twice for a single service.

In August, the Courier & Press requested digital copies for all emails between Newburgh police commission members -- Tonya McGuire, Bill Kavanaugh and Leanna Hughes -- from July 1-31. Powell responded concerning the cost of the request, saying if the Courier & Press wanted emails off the town's servers it would require the town's IT contractor, PC Quest, to retrieve the emails at a rate of $90 an hour.

"This cost will be passed on to the Courier," the August email states.

A PC Quest employee told the town the request would take about six to eight hours, costing $540 to $720. * * *

The town considered the cost of having the contractor to retrieve the emails as a direct cost, which would allow them to pass the cost to the Courier & Press as the requester. The public access counselor disagreed.

"If the town chooses to provide you the information on a thumb drive or a compact disc, it may charge 105 percent of the cost of the CD or flash drive and any labor to drag and drop the .pdf files onto the actual medium," Luke Britt, Indiana's Public Access Counselor, states in his advisory opinion. "This would be a fairly negligible cost and would not come close to approaching the price quoted to you."

The story links to the PAC opinion (and background documents).

(As of this writing, the opinion is not available on the PAC site, but when it is, this link should reach it directly.)

ILB comment: The lesson here may be to ask for the file that results from the search for the emails to be provided digitally on a flash drive.

Otherwise, each individual email and iteration thereof may be printed out and provided in paper form, or printed out and scanned and then provided as an individual pdf document, all at a rate of $0.10/page.

Posted by Marcia Oddi on Friday, October 14, 2016
Posted to Indiana Government

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

Updating yesterday's ILB post, the ILB has now located a link to the police dashboard camera video that is at the center of the dispute.

It is available in this September 9, 2016 South Bend Tribune story on the Court of Appeals opinion.

Posted by Marcia Oddi on Friday, October 14, 2016
Posted to Ind. App.Ct. Decisions

Thursday, October 13, 2016

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

Updating earlier ILB posts on the 2-1, Sept. 8th Court of Appeals opinion in Royce Love v. State of Indiana, Christian Sheckler reports today in the South Bend Tribune in a story that begins:

The Indiana attorney general's office this week blasted the state Court of Appeals for accusing South Bend police officers of giving false testimony about a man's 2013 arrest.

The state filed a petition Tuesday asking the Indiana Supreme Court to reinstate Royce Love's convictions for forcibly resisting law enforcement and mistreating a police dog. Last month, the lower appellate court reversed Love's convictions after finding that video evidence "indisputably contradicts" officers' sworn statements about the arrest.

The officers testified that Love was "extremely combative" and tried to walk away after leading police on a vehicle chase. But in a 2-1 decision, the appellate court said a police dashboard camera showed that Love surrendered before officers used Tasers, deployed a dog and kicked him.

In a petition to the Supreme Court, Deputy Attorney General Ellen Meilaender wrote that the appellate court majority went beyond its authority by re-weighing evidence that was already considered by a jury.

Meilaender also wrote that the video was too dark, blurry and obscured to support allegations that the officers gave false testimony.

ILB: Here is the appellate docket in the case. Here is the State's petition to transfer.

Posted by Marcia Oddi on Thursday, October 13, 2016
Posted to Ind. App.Ct. Decisions

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

For publication opinions today (1):

In Danny Sims v. Andrew Pappas and Melissa Pappas, a 16-page opinion, Sr. Judge Shepard writes:

During a trial over damages caused by a drunk driver, the defendant acknowledged his intoxication and responsibility for the collision. He objected to admitting evidence about two decades-old convictions for alcohol-related offenses. The objection was overruled and the jury ultimately returned a verdict, mostly for compensatory damages.

While we do not embrace his proposal that prior convictions should be barred outright as they mostly would be in a criminal trial, we conclude that in this case they neither proved nor disproved any facts that were central to the main questions the jury decided – compensatory damages and loss of consortium. As they were not relevant to these issues and unfairly prejudicial (though probably not to the question of punitive damages), we reverse and order a new trial. * * *

The trial court erroneously admitted evidence of Sims’ prior alcohol-related convictions from 1983 and 1996, and the error was not harmless. The trial court’s judgment entered on the jury verdict is reversed and this cause is remanded for retrial.

Riley, J., concurs.
Altice, J., dissenting with separate opinion. [that begins, at p. 13] I agree with the majority’s conclusion that the ten-year limit set out in Ind. Evidence Rule 609 does not apply in this context. I cannot agree, however, with the majority’s ultimate conclusion, based on an Ind. Evidence Rule 403 analysis, that the trial court abused its discretion by admitting evidence of Sims’s 1983 and 1996 prior alcohol-related offenses. * * *

Though relevant to the issue of punitive damages, the prior convictions’ remoteness in time does tend to diminish their probative value. In my mind, however, this should go to the weight of the evidence rather than its admissibility, and I cannot say that the trial court abused its discretion in this regard. See Spencer v. State, 703 N.E.2d 1053, 1056 (Ind. 1999) (even though remote crimes had low probative value and the Court was “inclined to think this evidence should not have been admitted”, the Court found no abuse of discretion in the trial court’s admission of the evidence). Accordingly, I respectfully dissent.

NFP civil decisions today (0):

NFP criminal decisions today (5):

Sam Milligan v. State of Indiana (mem. dec.)

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

Thomas King v. State of Indiana

Fronse W. Smith, Jr. v. State of Indiana (mem. dec.)

Dennis Linderman v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, October 13, 2016
Posted to Ind. App.Ct. Decisions

Env. - "Vermont Wind Project Needs Support, So Company Offers to Pay Voters"

Wind farms and turbines continues to be a topic of discussion nationwide, here is a list of some of the ILB entries re Indiana.

Today Katharine Q. Seelye of the NY Times has a lengthy story on a New England project, Some quotes:

WINDHAM, Vt. — To many residents in this tiny town in southern Vermont, the last-minute offer of cash was a blatant attempt to buy their votes.

To the developer that offered the money, it was simply a sign of how attentively the company had been listening to voters’ concerns.

The company, Iberdrola Renewables, a Spanish energy developer, wants to build Vermont’s largest wind project on a private forest tract that spans Windham and the adjacent town of Grafton. The project would consist of 24 turbines, each nearly 500 feet tall, and generate 82.8 megawatts of power, enough to light 42,000 homes for a year if the wind kept blowing, though the houses could be in Connecticut or Massachusetts.

Residents of the two towns will vote Nov. 8 on whether to approve the project, which has pitted neighbor against neighbor. No one knows which way the vote will go. * * *

At the meeting, which drew more than 100 residents, the developer shared its new plan. It reduced the number of turbines to 24 from 28 and increased the money paid to Windham to $1 million from $715,000 a year for the 25 years. The payments would cut property taxes in half and provide $150,000 a year for charities, fire departments and educational scholarships.

The company said it would also set aside $350,000 each year for direct payments to Windham’s 311 registered voters — $1,125 apiece annually, or $28,135 over 25 years, which a voter could accept or not.

In Grafton, the company set aside $215,000 for voter payments. The town’s 504 registered voters would each receive $427 a year, or $10,665 over 25 years. (Windham would have 16 turbines and Grafton eight.)

Asked if the company was trying to buy votes, a spokesman, Paul Copleman, said that Iberdrola was merely responding to what residents had said they would need to win approval, and that the developer would abide by the result.

In an email later, he added, “Our current proposal is based on feedback from community members who are frustrated that the tax relief from the project would give a larger break to those with more expensive properties.”

Kathy Scott, 74, a retired bookkeeper and one of the Windham residents who negotiated the package, said residents, not the company, came up with the idea of payments.

She said her group saw them as a way to “level the playing field” with second-home owners, many of whose homes have high assessments and who would benefit more from the tax cuts. (Although second-home owners pay 60 percent of the town’s taxes, they cannot vote here, a sore point for them.)

Opponents were outraged at the payments, perceiving them as an attempt to buy votes, and complained to state officials.

Posted by Marcia Oddi on Thursday, October 13, 2016
Posted to Environment

Wednesday, October 12, 2016

Ind. Gov't. - "Pence inaction on pardons confusing"

Niki Kelly, who has written a number of stores on Indiana gubernatorial pardons (see ILB posts from Dec. 22, 2014, Sept. 4, 2013 and Jan. 8, 2012, reports this afternoon in the Fort Wayne Journal Gazette in a long story that begins:

INDIANAPOLIS - The man touting grace and forgiveness for running mate Donald Trump has been stingy granting that mercy to those seeking pardons in Indiana.

Gov. Mike Pence has issued only three pardons in nearly 4 years.

In comparison former Gov. Mitch Daniels - who claimed to have the lowest pardon percentage of any governor - issued 62 pardons in eight years. That's about 8 a year.

The Journal Gazette contacted Pence's office Tuesday for a response and had not yet received a statement.

Pence has denied 39 pardons and another 20 are awaiting action.

That includes the now-infamous pardon request of Keith Cooper - a man who spent nine years in prison for a crime it appears he didn't commit.

He hasn't been officially exonerated by a court though DNA evidence tied another man to the crime; eyewitnesses have recanted and the deputy prosecutor in the case has urged pence to pardon Cooper.

"I feel like if this petition had been filed under Daniels he would have had the courage to grant it," said Cooper's attorney, Elliot Slosar.

Pence has total discretion on whether to give pardons, which is essentially executive forgiveness. It is often sought to allow a former offender to move past the restrictions a felony conviction holds - like being unable to get certain jobs or certifications, as well obtain a firearm carry permit.

Posted by Marcia Oddi on Wednesday, October 12, 2016
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides one Indiana case today, relying on res ipsa loquitur

In James Blasius v. Angel Automotive Inc (ND Ind., Van Bokkelen), a 27-page opinion, Judge Blakey (ND Ill., sitting by designation) writes:

In July 2009, Appellant James Blasius purchased a used 2005 Ford Excursion. In June 2012, Blasius entrusted Appellee Angel Automotive, Inc. (“AAI”) with upgrading the vehicle to make it “safe” and “reliable.” Blasius alleges that AAI negligently betrayed that trust when, one day and about 200 miles after pick up, the vehicle caught fire and was destroyed. The district court granted summary judgment for AAI after concluding that: (1) Blasius failed to present evidence that AAI’s work proximately caused the fire; and (2) the doctrine of res ipsa loquitur did not apply. Blasius appealed. For the reasons explained be‐ low, the decision of the district court is REVERSED. * * *

Our ruling, of course, takes no position regarding Appellant’s ability to link his vehicle fire to AAI’s conduct by a preponderance of the evidence at trial, nor do we opine up‐ on the strength of Appellant’s negligence claim as a whole. Such a determination rightfully belongs in the hands of the fact finder at trial. At present, it is enough to say that a genuine issue of material fact exists as to the proximate cause of the fire that consumed Blasius’ vehicle, and that, for the purpose of settling that dispute, Appellant is entitled to rely on the doctrine of res ipsa loquitur.  

For these reasons, the judgment of the district court is REVERSED and REMANDED for further proceedings con‐ sistent with this opinion.  

Posted by Marcia Oddi on Wednesday, October 12, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court decides one today

In Chuck W. Adams, Charles E. Howard, et al. v. ArvinMeritor, Inc., et al., a 3-page, 5-0, per curiam opinion, the Court writes:

Adams and Howard filed a complaint alleging among other things that they are owed unpaid wages because they were not paid the “prevailing wage” for their work. Indiana Code section 11-10-7-3 provides that “an offender employed by a private person under this chapter will be paid at least the prevailing wage for that type of work . . . including applicable wage increases for overtime work.” Meritor Heavy Vehicle Systems and all its related companies, officers, and employees named as defendants (collectively “Meritor defendants”), and the State defendants1 filed motions to dismiss the wage claims, arguing in part that Indiana Code chapter 11-10-7 does not create a private right of action. The trial court granted the motions and dismissed the claims.

A majority of the Court of Appeals reversed, concluding Adams and Howard have a private right of action under section 11-10-7-4, which provides that an enterprise operating under chapter 11-10-7 “is a private enterprise subject to laws governing the operation of similar enterprises in Indiana.” Adams v. ArvinMeritor, Inc., 48 N.E.3d 1, 8-9 (Ind. Ct. App. 2015), aff’d on reh’g by, 53 N.E.3d 1182 (Ind. Ct. App. 2016). The majority noted that private enterprises are subject to the Wage Payment Statute, which allows an employee to file an action in court to collect unpaid wages. See I.C. § 22-2-5-2. And the majority concluded Adams and Howard may pursue their wage claims. Adams, 48 N.E.3d at 9.

Judge May dissented on this issue, concluding the trial court properly dismissed the wage claims because Indiana Code section 11-10-7-4 did not explicitly create a private right of action for offenders to pursue wage claims. Id. at 16, and 53 N.E.3d at 1184 (May, J., dissenting in part). The Meritor defendants seek transfer. We agree with Judge May. We grant transfer, adopt and incorporate by reference the dissent’s original and rehearing opinions addressing the wage claims, see Ind. Appellate Rule 58(A)(1), and affirm the trial court’s dismissal of these claims. We summarily affirm those parts of the Court of Appeals opinions addressing Adams’s other claims. See App. R. 58(A)(2).

Posted by Marcia Oddi on Wednesday, October 12, 2016
Posted to Ind. Sup.Ct. Decisions

Law - "Facebook, Twitter and Instagram sent feeds that helped police track minorities in Ferguson and Baltimore, ACLU says"

Craig Timberg and Elizabeth Dwoskin report today in a Washington Post story that begins:

A powerful surveillance program that police used for tracking racially charged protests in Baltimore and Ferguson, Mo., relied on special feeds of user data provided by Twitter, Facebook and Instagram, according to an ACLU report Tuesday.

The companies provided the data — often including the locations, photos and other information posted publicly by users — to Geofeedia, a Chicago-based company that says it analyzes social media posts to deliver real-time surveillance information to help 500 law enforcement agencies track and respond to crime. The social media companies cut off Geofeedia’s access to the streams of user data in recent weeks after the ACLU discovered them and alerted the companies about looming public exposure.

The popularity of Geofeedia and similar programs highlights how the rise of social media has given governments worldwide powerful new ways to monitor crime and civil unrest.

Posted by Marcia Oddi on Wednesday, October 12, 2016
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 8 NFP memorandum decision(s))

For publication opinions today (1):

In Brenda K. (Layman) Smith and John C. Smith v. Dunn Hospitality Group Manager, Inc. d/b/a Comfort Inn, a 9-page opinion, Judge Riley concludes:

The Smiths contend that the relevant provisions of the Innkeeper Statute are not applicable because “[t]he Comfort Inn’s agents facilitated the theft of the Smiths’ property.” (Appellants’ Br. p. 11). To support their argument, the Smiths rely on a negligence theory to state that “[t]he fact that the Smiths’ personal property was removed from their room and disposed of without their consent or financial benefit clearly establishes injury proximately caused by the Comfort Inn’s act in allowing an unauthorized third party access to the Smiths’ room.” (Appellants’ Br. p. 13). Nevertheless, besides the assertion in the Complaint that the Comfort Inn allowed Crawley to enter their room, the designated evidence is void of any indication that the Comfort Inn or its agents conspired with Crawley to commit a theft of the Smiths’ property. In fact, by specifically relying on a negligence theory in an attempt to establish an intentional tort or criminal activity on the part of the Comfort Inn, the Smiths place their situation squarely within the statutory provision of I.C. § 32-33-7-3. Therefore, we agree with the trial court that no genuine issue of material fact exists that would prevent entering summary judgment in favor of the Comfort Inn.
NFP civil decisions today (3):

In the Matter of A.J.T. (Minor Child) M.T. (Father) v. J.R. (mem. dec.)

In Re: The Paternity of A.R. (Minor Child) A.R. (Minor Child) by Next Friend, C.T., III v. J.R. (mem. dec.)

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

NFP criminal decisions today (5):

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

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

Arnell Lyles v. State of Indiana (mem. dec.)

Emmanuel Arrington v. State of Indiana (mem. dec.)

Charles Anthony Hardy, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, October 12, 2016
Posted to Ind. App.Ct. Decisions

Courts: "In an immigration court that nearly always says no, a lawyer’s spirit is broken"

By Chico Harlan in the Washington Post, a must read story.

To understand why, just view this graphic from the story, "Odds of winning asylum swing from court to court," and focus on the Atlanta district, where the subject of the story, "Elizabeth Matherne had been practicing immigration law for four years."

Posted by Marcia Oddi on Wednesday, October 12, 2016
Posted to Courts in general

Ind. Gov't. - "Allowing guns in parks proposed" in Fort Wayne

Dave Gong reports in the Fort Wayne Journal Gazette:

An ordinance introduced during Tuesday’s Fort Wayne City Council meeting would remove language in the city code prohibiting residents from carrying firearms in city parks.

Introduced by Councilman Jason Arp, R-4th, the measure would amend a section of the Fort Wayne city code related to the Parks and Recreation Department to remove firearms from a list of prohibited items that includes fireworks, firearms, BB guns, slingshots, pea shooters, blow guns and paintball guns.

As currently written, the ordinance violates state law regarding the regulation of firearms, Arp said. * * *

Through his proposal, Arp contends that state law prohibits local government units from regulating firearms. Arp said he believes the change, in addition to being in compliance with state law, will be good public policy. * * *

According to Indiana Code 35-46-11.1-2, local governments may not regulate firearms, ammunition and firearm accessories, or their ownership, possession, carrying, transportation, registration, transfer or storage. But state law does allow local governments to prohibit or restrict firearm possession at hospitals and in places such as the Allen County Courthouse or Citizens Square.

ILB: This story may sound familiar to many ILB readers who recall similar issues involving Hammond and Evansville.

In the Hammond case, a 3/15/13 COA opinion in Samuel G. Dykstra and Michelle L. Bahus v. The City of Hammond, the City of Hammond was sued because it did not remove from its books "city gun restrictions now voided by state law. ... The ordinances had restricted guns from city buildings or at any city board or commission meeting." The Court of Appeals held: "We hold that the trial court did not err in denying the Firearm Owners’ motion for summary judgment and granting summary judgment in favor of the City of Hammond.." As the ILB wrote at the time:

Interestingly, however, the COA designated the opinion as "Not for Publication." This although Appellate Rule 65(A) provides that a Court of Appeals opinion shall be published if it "involves a legal or factual issue of unique interest or substantial public importance."

What is the significance of a NFP designation? Under Rule 65(D): "Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court ..."

The Supreme Court later denied transfer in Dykstra. As this July 17, 2013 ILB post reports:
Included, unremarked, on the transfer list for the week ending July 12, 2013 (on p. 2, 3rd from the bottom) was the case of Samuel G. Dykstra and Michelle L. Bahus v. The City of Hammond (NFP - initially, but then changed to "for publication"). Transfer was denied, leaving the Court of Appeals opinion standing.
The long July 17, 2013 post then goes on to discuss the Evansville case, Magenheimer.

Posted by Marcia Oddi on Wednesday, October 12, 2016
Posted to Indiana Government

Ind. Decisions - More on: 7th Cir. to rehear Ivy Tech anti-gay employment discrimination case en banc

Updating this ILB post from yesterday, here is a story by Michael Tarm of the AP, headed " Court vacates Ivy Tech sexual-orientation bias ruling: Former college instructor claims discrimination." A quote from the story:

Civil rights groups said in filings calling on the 7th Circuit to do what it has now done that Hively's case is a chance "to correct its outdated and unworkable interpretation" Title VII of the 1964 Civil Rights Act and to expand the scope of its protections to include LGBT workers.
Here is a story from Madeline Buckley of the Indianapolis Star. Some quotes:
The fight isn't over yet for a South Bend woman who was told by a court that she could not sue Ivy Tech Community College because federal law does not protect sexual orientation from workplace discrimination.

The 7th U.S. Circuit Court of Appeals in Chicago on Tuesday agreed to take another look at the case brought by Kim Hively, a former part-time instructor at Ivy Tech who is accusing the community college of not hiring her full-time because she is a lesbian.

Hively sued Ivy Tech in 2014, but her case was dismissed. Though federal law protects employees from discrimination based on race, sex, religion, color and national origin, it does not offer protection from discrimination based on sexual orientation. In July, a panel of three 7th Circuit judges had upheld the dismissal, though they criticized the fact that sexual orientation is not included in workplace protections guaranteed under Title VII of the Civil Rights Act of 1964.

Now, the court on Nov. 30 will hear the case before its full panel of judges, the next step in the judicial process that allows Hively to continue fighting for her case. The court's earlier opinion is now vacated.

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

The judges will not be examining whether Hively has evidence that she was discriminated against at work because of her sexual orientation. Rather, the issue at hand right now is whether she should be allowed to try to prove those claims in the first place.

Posted by Marcia Oddi on Wednesday, October 12, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Ohio Supreme Court Decision Clarifies Mineral Rights in Utica and Marcellus Shale Plays"

That is the heading of this Jones Day article in Lexology, subheaded "Law Does Not Provide for Automatic Vesting of Unused Mineral Interest Without Notice." What caught the ILB's eye was the reference to Indiana near the beginning [emphasis added by ILB]:

Many states have "dormant mineral" legislation providing for the transfer of severed mineral interests to the surface owner if the mineral owner does not develop the minerals or take other action manifesting an intent to preserve his interest over an extended period of time, typically 20 years. The basic purpose of such legislation is to promote the development of mineral resources by clearing title of unwanted mineral interests and eliminating the uncertainty about mineral ownership that can arise when many years of devise, descent, and conveyance leave oil and gas rights fragmented and disconnected from surface ownership.

Some of these statutes are expressly self-executing and provide for the automatic vesting of an unused mineral interest in the surface owner, without advance notice to the mineral owner. In 1982, the United States Supreme Court upheld Indiana's self-executing statute against a variety of constitutional challenges. Texaco, Inc. v. Short, 454 U.S. 516 (1982). Other statutes, including the Uniform Dormant Mineral Interests Act (1987), require the surface owner to take some action to reunite the mineral and surface estates.

Posted by Marcia Oddi on Wednesday, October 12, 2016
Posted to Ind. Sup.Ct. Decisions

Tuesday, October 11, 2016

Ind. Decision - 7th Cir. to rehear Ivy Tech anti-gay employment discrimination case en banc [Updated]

The 7th Circuit has voted to rehear its 3-judge opinion in Kimberly Hively v. Ivy Tech Community College. Here, via Equality Case files, is the original, July 28th opinion, plus an August 3rd correction.

Here, via Lambda Legal, is today's order, "by the court," stating:

The Petition for Rehearing En Banc is GRANTED, and the panel's opinion and judgment are VACATED."
From the news release:
In August of 2014, Hively filed a lawsuit in a federal trial court against Ivy Tech Community College, arguing that the school violated Title VII of the 1964 Civil Rights Act when it denied her full-time employment and promotions on the basis of her sexual orientation. The trial court dismissed Hively’s lawsuit and held that Title VII does not protect employees from antigay discrimination.

In April 2015, Lambda Legal filed an appeal on Hively’s behalf seeking reversal and reinstatement of her complaint, but was denied by a panel of three judges in a decision issued July 28, 2016. Today the full Seventh Circuit Court of Appeals has agreed to rehear the case.

Here is the ILB summary of the July 28th opinion of the 7th Circuit.

Here is a July 29th ILB post quoting the Indianapolis Star, and here are quotes from an August 2nd editorial in the Fort Wayne Journal Gazette.

[Updated per EQCF]
Oral argument now set for Nov. 30, 2016 before the full court.

Posted by Marcia Oddi on Tuesday, October 11, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Allen County Plan Commission, et al. v. Olde Canal Place Association, et al., a 9-page opinion, Judge Altice writes:

MRK II, LLC and Max R. Kendall (collectively, MRK) and t he Allen County Plan Commission (the Commission) appeal from the trial court’s order granting Canal Place Association and its members (collectively, OCPA ) relief from judgment under Ind. Trial Rule 60(B)(1). On appeal, MRK and the Commission argue that the trial court abused its discre tion in granting relief because OCPA cannot establish a meritorious claim as required by T.R. 60(B)(1).

We reverse and remand with instructions. * * *

We find Welton instructive. Because OCPA is not permitted to belatedly file the Record, the Record is not, and will never be, properly before the trial court. Without the Record, OCPA’s petition cannot be considered. See TOPS, 20 N.E.3d at 155; Robertson, 19 N.E.3d at 762-63. The trial court’s order setting aside the dismissal of OCPA’s petition was therefore an empty exercise. Because OCPA cannot establish a meritorious claim, the trial court abused its discretion in granting the motion for relief from judgment. We therefore reverse and remand with instructions to vacate the trial court’s judgment setting aside its dismissal of OCPA’s petition for judicial review.

NFP civil decisions today (2):

Keith A. Eenigenburg and Sandra Eenigenburg v. Joan Andreotti (mem. dec.)

Patricia A. Smith v. Kelly J. Fehrenbacher, M.D. and David J. Weaver, M.D. (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on Tuesday, October 11, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending October 7, 2016 [Updated]

Here is the Clerk's transfer list for the week ending Friday, October 7, 2016. It is two pages (and 19 cases) long.

No transfers were granted last week.

Interestingly, as of this writing, the Oct. 3rd order of the Supreme Court denying transfer, by a vote of 3-2, in the Parkview Hospital case, is not listed on this Oct. 7th transfer list. The ILB wrote about the denial on Oct. 6th and Oct. 10th.

[Updated 10/18/16] The Court's October 7th transfer list has now been corrected with the addition to the list of the Oct. 3rd denial of transfer in the Parkview Hospital case.

Posted by Marcia Oddi on Tuesday, October 11, 2016
Posted to Indiana Transfer Lists

Ind. Gov't. - "Bangert: An experiment in voter fraud"

Lafayette Journal & Courier columnist has a long story that starts out with an example of "how easy it would be to get into someone’s voter registration and make changes to it." From there the article looks at the ongoing State Police investigation:

Tippecanoe County isn’t among the 57 counties targeted by the Indiana State Police investigation that started in Marion County. As of late last week, it appeared police were working their way alphabetically through Indiana’s counties, making it to Owen County. Coffey said she was preparing in case police pull Tippecanoe County in next.

State police haven’t offered much about the investigation or about when it would be done. Last week, state police issued a search warrant for the business offices of Indiana Voter Registration Project in Indianapolis. (Patriot Majority USA, the parent organization for Indiana Voter Registration Project, in turn, asked the U.S. Department of Justice’s Civil Rights Division to look for signs that the police probe was an attempt to suppress the black vote.)

As for what they were after, police offered a statement: “Victims of the activities by some agents of the Indiana Voter Registration Project may not discover they have been disenfranchised from voting until they go to vote and realize their voting information has been altered.”

How that might be happening, and whether it includes the state’s online system, state police aren’t saying.

ILB: The ILB remembers the ACORN controversy in 2008, and has located several posts about it. Start with this one from Nov. 14, 2008, headed: "Still more on "ACORN followed law on suspect voter registrations.'"

Posted by Marcia Oddi on Tuesday, October 11, 2016
Posted to Indiana Government

Ind. Gov't. - "Old Crown Point marriage mill ordinance tossed"

Rob Earnshaw reported last weekend in the NWI Times (here via the IED) in an interesting story that begins:

CROWN POINT — A 1936 ordinance banning the commercialization of marriage ceremonies has been wiped off the city slate.

The Crown Point Ordinance Committee doesn't believe the commercialization of marriage ceremonies is a big problem anymore, said Alex Kutanovski, assistant city attorney.

"It was from the time of the marriage mill," he said.

Crown Point was once the Las Vegas for area couples who rushed to be wed on the courthouse steps. From 1915 to the late 1930s, about 175,000 couples were married there.

Brides and grooms married in Crown Point because of the short wait time and ease of becoming legally wed.

Many famous figures got hitched in Crown Point, including Tom Mix, Rudolph Valentino, Muhammad Ali, the parents of Michael Jackson and former President Ronald Reagan, who married his first wife, actress Jane Wyman.

According to the Crossroads Regional Chamber of Commerce, at one point six justices of the peace were marrying couples seven days a week at all hours to keep up with demand.

Posted by Marcia Oddi on Tuesday, October 11, 2016
Posted to Indiana Government

Monday, October 10, 2016

Ind. Gov't. - "Judge, prosecutor seek AG post"

Niki Kelly of the Fort Wayne Journal Gazette reported this weekend in the race for Indiana attorney general. Some quotes:

INDIANAPOLIS – Two men who have dedicated their lives to the law are vying for the open seat of Indiana attorney general in November.

Democrat Lorenzo Arredondo and Republican Curtis Hill Jr. are seeking to replace Greg Zoeller as the state’s top lawyer. Zoeller did not seek re-election. The four-year term pays $94,5000 annually.

Arredondo, a 75-year-old who has called East Chicago home his entire life, is the youngest of 10 children. His parents immigrated from Mexico in 1923 and his union-leader father was killed in 1955 – an event that shifted Arredondo’s focus from working in the steel mill to going to college.

After being a teacher for a while, he decided to go to law school and spent time prosecuting cases before serving as a Lake County judge for 34 years. * * *

Hill, 55, grew up in Elkhart and lives there with his wife and five children. He got his law degree from Indiana University.

“I had traveled and seen different parts of the country, but I wanted to go back to Elkhart to spend time with my parents,” he said. “I hung a shingle, and it was important for my dad to see some of my success.”

His dad was active in the civil rights movement and taught Hill how important community service was.

He practiced law for 27 years – including time as a general lawyer and as a part-time prosecutor. He ran for prosecutor in 2002 on a platform of moving the office to a full-time operation. He is in his fourth term.

“We locked up a lot of bad people doing bad things,” Hill said. “People can’t feel free unless they feel safe.”

More from the story:
The position of attorney general is primarily about defending local convictions or laws the General Assembly passed but has become increasingly political in recent years.

Zoeller, for instance, has signed on to a number of national lawsuits brought against the Obama administration. And he has defended laws passed by lawmakers that were found to be unconstitutional.

Hill said he doesn’t want the office to do things for political reasons but recognizes that executive agencies on the federal level affect Indiana government and sometimes need to be challenged.

He said legislation passed by lawmakers is presumptively constitutional.

“If it’s a situation where I think it’s a clear violation then it’s my duty to say that and be transparent about my concerns,” Hill said. “But I won’t engage in frivolous disagreement. Some legislation I might not agree with, but it’s perfectly legal.”

Arredondo, though, is using this topic as a base of his campaign.

“Lately it’s been a launching pad for young ambitious politicians who want to become governor or senator. I want to bring it back to what it was created for – the people’s lawyer,” he said. “I would not spend taxpayer time and resources on lawsuits that just can’t be won.”

He said Zoeller has used the national suits to fight alleged federal overreach. But Arredondo said he would more carefully review the legal merits of a case, not the political ones.

“Some of those lawsuits are clear and there is no point in getting into them except to make news,” he said.

Arredondo also said he won’t blindly defend questionable laws.

“There is a right not to defend if it’s not defensible,” he said, noting his time as a judge should be a great advantage as he is used to listening to both sides and reviewing all legal precedent before making determinations. * * *

Hill said he would be more aggressive defending convictions obtained by local prosecutors. He would also carefully consider when using outside attorneys at much higher rates than those working for the state.

At times, it seems Hill is talking about serving in a different office – perhaps governor?

“I’m looking forward to the opportunity to serve in this capacity. It’s a very important office,” he said. “Sometimes people ask what it’s about. I say we are the champion for the people – defender of freedom; protector of families; inspiring solutions.”

ILB: The ILB has a number of other posts on this year's race for attorney general.

Posted by Marcia Oddi on Monday, October 10, 2016
Posted to Indiana Government

Ind. Gov't. - "Indiana, Illinois continue work on Illiana Expressway plan fixes"

Updating a long list of earlier ILB posts on the controversial Illiana Expressway project, Andrew Steele of the NWI Times reports:

The Indiana and Illinois departments of transportation anticipate completing revisions to their Illiana Expressway plan this fall, hoping to overcome a federal court’s objections to their original effort.

A late April agreement between the two states aimed to keep the Illiana project alive, with Indiana hiring an engineer to correct flaws in the Illiana’s environmental impact statement.

In a Friday filing in U.S. District Court for the Northern District of Illinois, an Illinois Department of Transportation engineer declared that “IDOT is working cooperatively with INDOT to perform the work necessary to address the issues decided by the Court.”

The declaration, by IDOT’s Region One engineer John Fortmann, stated that the agencies intend to submit a preliminary draft of a new environmental statement to the Federal Highway Administration this fall. * * *

Indiana has continued to support the project, but it was taken off Illinois’ agenda when Gov. Bruce Rauner put a freeze on such projects after taking office.

In Friday’s court filing, IDOT made clear its intention to protect the project against legal challenges, but won’t pursue it without “a determination that the project is financially viable.”

Posted by Marcia Oddi on Monday, October 10, 2016
Posted to Indiana Government

Ind. Decisions - "Uninsured may gain route to challenge health care prices"

The Supreme Court's decision not to grant transfer in the case of Parkview Hospital, Inc. v. Thomas E. Frost, et al., about which Niki Kelly of the FWJG reported on October 6th, is the subject of this story today in the NWI Times, reported by Dan Carden. Some quotes:

Uninsured Hoosiers someday may be entitled to receive hospital care at the same discounted prices insurance companies pay on behalf of their customers.

The Indiana Supreme Court last week appeared to ignore its own precedent, and opened the door for a northeast Indiana man to challenge the reasonableness of health care pricing by presenting evidence of far lower rates paid by insured patients for identical services.

Thomas Frost, who racked up $629,386.50 in medical bills following a 2013 motorcycle accident, does not dispute that he owes Fort Wayne’s Parkview Hospital for his care.

But Frost claims, under Indiana law, he has a right to learn whether his bill, as an uninsured patient, exceeds the payment the hospital would accept from a patient whose charges are paid by an insurance company or the government.

In a 2-1 decision, the Indiana Court of Appeals sided with Frost in March and authorized him to seek hospital billing records to determine how his charges compare to those of insured patients.

With that information, Frost potentially could reduce his bill under the Indiana Hospital Lien Act, which authorizes circuit courts to evaluate the reasonableness of a hospital patient’s charges.

In a somewhat surprising move, the Supreme Court on Oct. 3 declined, 3-2, to set aside that appellate court ruling and decide Frost’s case itself. * * *

That outcome seems to undermine a 2012 Supreme Court decision that affirmed the practice of health pricing secrecy.

In Allen v. Clarian, an unanimous high court ruled that a hospital’s “chargemaster” — its list of undiscounted item and procedure rates billed to uninsured patients — need not be reasonable, or even made available for review prior to a patient signing an agreement to pay his or her incurred charges.

The decision terminated a potential class-action lawsuit brought by uninsured Hoosiers who believed they had been overcharged by the state hospital network now known as IU Health, because Indiana law generally requires reasonable charges for services if the cost is not known in advance.

Writing for the court in that case, Rucker said “a hospital’s chargemaster rates serve as the basis for its pricing,” regardless of whether the prices reflect the actual cost of hospital goods or services.

ILB: The ILB referenced the 2012 case ("Readers may remember an earlier, similar case from 2012 where the Supreme Court...") in this September 6th post, following the oral argument in Parkview. For more, see this March 21, 2016 ILB post, which points to four posts from 2012 on the earlier case.

Posted by Marcia Oddi on Monday, October 10, 2016
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions

Ind. Courts - "Former Notre Dame player sues university, NCAA over concussions"

From a story by Margaret Fosmoe of the South Bend Tribune:

Former University of Notre Dame football player Gary Gray is suing Notre Dame and the NCAA, claiming he suffered repetitive head injuries while playing football and didn't receive proper medical care.

It's among the latest in a wave of federal lawsuits filed by Chicago law firm Edelson PC on behalf of former football players related to concussions suffered during college football play. * * *

The lawsuit was filed Tuesday in U.S. District Court in the southern district of Indiana. The firm has now filed 43 such suits since May.

On Monday, the same law firm filed a lawsuit on behalf of former Ball State University football player Geoff Donner against the NCAA and the Mid-American Conference. That suit claims injury and reckless disregard for the health and safety of BSU student-athletes.

The players are seeking damages. All the lawsuits name the NCCA, and some also name athletic conferences and/or the colleges themselves.

The latest were filed on behalf of Gray and former players from Texas A&M, UCLA, Maryland, Richmond, Idaho, South Carolina, Mississippi, Syracuse, Pittsburgh, Georgia Tech, Alabama and Iowa. A day earlier, suits were filed on behalf of Donner and former players from Memphis, Rutgers, Eastern Michigan and Florida A&M filed lawsuits.

A judge in a previous case ruled one large class-action concussion lawsuit could not be filed against the NCAA.

In a statement, Donald Remy, the NCAA’s chief legal officer, called the lawsuits "mere copycats" and "questionable class actions," the Los Angeles Times reported.

Posted by Marcia Oddi on Monday, October 10, 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 10/10/16):

Next week's oral arguments before the Supreme Court (week of 10/17/16):

Thursday, October 20

Webcasts of Supreme Court oral arguments are available here.




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

Next week's oral arguments before the Court of Appeals (week of 10/17/16):

Wednesday, October 19

Friday, October 21

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, October 10, 2016
Posted to Upcoming Oral Arguments

Friday, October 07, 2016

Ind. Gov't. - "Hamilton County attorney's hiring raises concerns"

That is the headline of this lenthy story by Chris Sikich this morning in the Indianapolis Star. The long story begins:

Noblesville, Ind. — The Hamilton County Council's decision to hire the Massillamany & Jeter law firm is raising questions about a potential conflict of interest and the past drunken driving convictions involving one of the partners.

The council voted 5-1 Wednesday to hire the Fishers firm. The contract pays $20,000 annually, plus $200 per hour for additional services.

Partner Mario Massillamany is the ex- husband of Councilwoman Amy Massillamany. They share joint custody of two children, leading to concerns that the contract would benefit their family. Acknowledging that potential conflict, Amy Massillamany abstained from voting on the contract.

Legal experts contacted by Indy Star said she doesn't have a legal conflict because she does not receive a direct benefit and that nepotism laws do not include ex-spouses. But some county officials believe the hiring doesn't pass the smell test.

Adding to the concerns, Mario Massillamany also has three convictions for operating a vehicle while intoxicated in Hamilton and Marion counties. Two resulted in disciplinary action by Indiana Supreme Court because he was a practicing attorney.

A search of the ILB for "Massillamany" leads to many earlier posts.

Posted by Marcia Oddi on Friday, October 07, 2016
Posted to Indiana Government

Ind. Gov't. - "Property's sale price confirms original assessment, which owners had successfully appealed"

Interesting story in the $$$ Bloomington Herald-Times, reported by Ernest Rollins. The story begins:

The owners of an eastside Bloomington apartment complex, who appealed their property assessment and won, have sold that property for just about what Monroe County Assessor Judy Sharp argued all along was the market value of the property.

According to a September sales disclosure form, IA Bloomington Fields LLC of Oak Brook, Illinois, sold three parcels of The Fields, an apartment complex on Fenbrook Lane, to The Fields SH LLC, of Houston, Texas, for $33.3 million.

According to a 2014 Herald-Times article, the Fields originally was assessed at $33 million, but following an appeal from the owners and several years of waiting for a decision from the Indiana Board of Tax Review, both parties agreed to settle on an assessment value of $28 million. As part of that settlement, the owners were refunded just over $732,000 in taxes paid along with interest while the property was still going through the appeal. The county council at that time moved some money out of the rainy day fund to help cover that mandated expense.

Sharp said the sale of the property at around $33 million is frustrating for her.

“We knew that our value was right on the dollar,” Sharp said. “I have been upset ever since it happened, because I knew my values were correct.”

There is much more in the story, including:
If an appeal reaches the state level, she noted, it can take years before it is resolved, and this is potentially problematic for a county.

“The breakdown is once it leaves the county office and you have to wait for years for resolution to a hearing,” Sharp said.

She said the longer it takes for a decision to be made on an appeal, the more the county has to take into account the potentially growing cost of things such as interest, penalties and refunding taxes if the taxpayer prevails.

Posted by Marcia Oddi on Friday, October 07, 2016
Posted to Indiana Government

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

In USA v. Justin Wykoff (SD Ind., Pratt), a 3-page opinion, Judge Posner writes:

. Justin Wykoff pleaded guilty to wire‐fraud charges growing out of his having solicited bribes and kickbacks while a Bloomington, Indiana, official. The district judge sentenced him to 55 months in prison and to pay restitution of $446,335 to Bloomington and a $1,100 assessment, with both payments “to begin immediately.” The judge added what she called a “special instruction”: “Any unpaid restitution balance during the term of supervi sion [i.e., the period following release from prison when the defendant would be subject to the conditions of supervised release imposed by the judge at sentencing] shall be paid at a rate of not less than 10% of the defendant’s gross monthly income.” * * *

[ILB: Wycoff subsequently opposed garnishment of the total amount by the government] He based the argument on the judge’s “special instruction,” which he interpreted as limit ing his restitution payments to 10 percent of his monthly in come. But the instruction doesn’t say that; it says that 10 per cent is the minimum amount he must pay to complete restitu‐ tion. United States v. Fariduddin, 469 F.3d 1111, 1113 (7th Cir. 2006).

In fact he has no legal leg to stand on. The federal crimi nal code requires that restitution be paid immediately unless the district court provides otherwise, 18 U.S.C. § 3572(d)(1), which it did not. In United States v. Sawyer, 521 F.3d 792, tion “any existing assets should be seized promptly. If the restitution debt exceeds a felon’s wealth, then the Mandato ry Victim Restitution Act of 1996, 18 U.S.C. §§ 3663A, 3664, demands that this wealth be handed over immediately.” This is an important rule—for who knows what might hap pen to Wykoff’s assets during his years of imprisonment. He or members of his family or for that matter the Indiana state pension fund might decide that there are better things to do with those not inconsiderable assets than give them to Bloomington.

In short, his claim is groundless, and so the district court’s judgment is AFFIRMED.

(7th Cir. 2008), we pointed out that at the start of incarcera‐

Posted by Marcia Oddi on Friday, October 07, 2016
Posted to Ind. (7th Cir.) Decisions

Thursday, October 06, 2016

Ind. Courts - Rulings on Carmel traffic ticket "piggy-back" case in federal court

Updating this ILB post from June 6th, the third paragraph of which reads:

In this post from Jan. 12, 2016, the ILB quotes an IBJ story headed "Carmel faces federal class action lawsuit over traffic law," and includes a copy of the federal complaint. The last part of this IndyStar story from Jan. 14th also talks of the federal class action lawsuit, filed by attorney Ed Bielski.
This is that federal class action lawsuit, Lennon et al v. City of Carmel, et al.

In a 41-page order today, Judge Magnus-Strinson begins:

In their third attempt at pleading their case, Plaintiffs assert that their civil rights were violated when they received traffic tickets for violating Carmel, Indiana City Ordinance § 8-2, which incorporated state law traffic violations by reference. It is important to note the context in which this case arose. Jason Maraman, who is not a party to this lawsuit, received a § 8-2 citation for speeding from the Carmel Police Department. When the Carmel City Court entered judgment against him, he requested a trial de novo and filed a motion to dismiss with the trial court. The trial court denied his motion to dismiss and, proceeding pro se, he appealed that decision to the Indiana Court of Appeals. See Maraman v. City of Carmel, 47 N.E.3d 1218 (Ind. Ct. App. 2015). Specifically, Mr. Maraman challenged the validity of § 8-2 based on Indiana’s “Home Rule” laws. Id. at 1221-22 (citing Ind. Code § 36-1-3-8(a)(8) (stating that municipalities do not have the “power to prescribe a penalty for conduct constituting a crime or infraction under statute”)). The Indiana Court of Appeals agreed with Mr. Maraman, found that § 8-2 was invalid and reversed the trial court’s denial of his motion to dismiss, but did not make a determination regarding the constitutionality of § 8-2. Id. at 1224. The Court of Appeals issued its decision on December 11, 2015, and the Indiana Supreme Court denied transfer on April 12, 2016.

In stark contrast to Mr. Maraman, none of the Plaintiffs here sought dismissal of their § 8-2 citations or challenged the end-result of their adjudications, by appeal or otherwise, at the state court level. Nevertheless, in an apparent attempt to piggyback onto Mr. Maraman’s success, Plaintiffs filed this lawsuit a few weeks after the Indiana Court of Appeals’ decision, on December 30, 2015. * * *

IV. CONCLUSION

For the reasons detailed herein, the Court GRANTS the Driving Record Defendants’ Motion to Dismiss, [Filing No. 56], and GRANTS the CarmelDefendants’ Motion to Dismiss, [Filing No. 58]. Plaintiffs’ § 1983 claims are DISMISSED WITH PREJUDICE. Pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), a plaintiff may amend its complaint once as a matter of course in response to a motion to dismiss. Brown v. Bowman, 2011 WL 1296274, *16 (N.D. Ind. 2011). The 2009 notes to that rule emphasize that this amendment “will force the pleader to consider carefully and promptly the wisdom of amending to meet the arguments in the motion. A responsive amendment may avoid the need to decide the motion or reduce the number of issues to be decided, and will expedite determination of issues that otherwise might be raised seriatim.” Plain-tiffs amended their Complaint three times in the first three months after filing their initial com-plaint, and then chose not to exercise their right to amend again as a matter of course pursuant to Rule 15(a)(1)(B) in response to the two current Motions to Dismiss but, instead, chose to brief the motions and adjudicate the issues. The Court is not required to give Plaintiffs yet another chance to plead their federal claims because they have already had multiple opportunities to cure deficiencies in their pleadings. See Emery v. American General Finance, Inc., 134 F.3d 1321, 1323 (7th Cir. 1998). Further, Plaintiffs have not given any indication that they could, in fact, successfully amend their complaint to cure the defects identified above, even if given the opportunity to do so. Considering the procedural history of this case, particularly the fact that Plaintiffs have already had the opportunity to re-plead their allegations, the Court, in its discretion, dismisses Plaintiffs’ § 1983 claims with prejudice. Plaintiffs’ state law claims for unjust enrichment and money had and received are DISMISSED WITHOUT PREJUDICE.

Posted by Marcia Oddi on Thursday, October 06, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Floyd County prosecutor Keith Henderson should be significantly disciplined, not simply reprimanded, Disciplinary Commission recommends

Elizabeth DePompei reports last this afternoon for the Floyd County News & Tribune:

The Indiana Supreme Court Disciplinary Commission has formally asked the state's high court to give Floyd County Prosecutor Keith Henderson more than a "mere slap on the wrist" over findings that Henderson acted unethically.

The disciplinary commission is responsible for investigating claims of misconduct against licensed attorneys, including county prosecutors. In March 2015, the commission filed a complaint alleging Henderson violated rules of conduct when he signed an agreement with a literary agency to produce a book about the high-profile David Camm trials. * * *

The disciplinary commission made its case and Henderson responded during several days of ethics hearings in Indianapolis last October. In early August, Hearing Officer David Pippen released his opinion [ILB: see this Aug. 5th ILB post, which includes a link to the Hearing Officer's recommendation] and found that Henderson did violate ethics by entertaining a book deal. Pippen's recommendation was a "public reprimand."

On Monday, attorneys for Henderson and the commission filed petitions asking that the Indiana Supreme Court review Pippen's findings before handing down a final decision. David Hughes, representing the commission, wrote that Pippen's findings lacked sufficient context and detail.

"The Commission believes that the clear and convincing evidence established serious professional misconduct by [Henderson] so as [to] warrant a significant period of suspension from the practice of law," Hughes wrote.

Hughes also addresses a second count of allegations that Henderson was deceitful in requesting nearly $30,000 of county money. That public money, Hughes argued, was used to pay for Henderson's private attorney fees in response to Camm's request to remove Henderson from the case in light of the book negotiations. Pippen did not offer an opinion regarding the use of public money, but said the disciplinary commission failed to show any evidence that Henderson did anything wrong when seeking reimbursement for his legal fees.

Hughes said in his petition that Pippen focused too much on whether county officials acted properly in approving the funds and too little on the manner in which Henderson requested them. A resolution requiring Henderson to pay the county back died for lack of a second at a Floyd County council meeting on Aug. 9, just days after Pippen's findings were released. * * *

The Indiana Supreme Court will review Pippen's findings and both petitions before handing down a final decision on what sanctions, if any, Henderson will face.

Henderson — who is running for Floyd County Circuit Court judge in November — and his attorney have said they will not comment on the case while the review in ongoing. Hughes, the commission's attorney, said last October that he does not comment on ongoing cases.

The long N&T story links to the Commission's October 3rd petition for Supreme Court review, which concludes:
Respectfully, the Court should conduct a de novo review of this proceeding, find and conclude that the Respondent engaged in the professional misconduct as charged in both Counts I and II of the Verified Complaint For Disciplinary Action, and enter an appropriate order of discipline significantly beyond that of a public reprimand.
ILB: The ILB has downloaded, from the News & Tribune website, both the Commission's Oct. 3rd Brief of the Disciplinary Commission in support of its Petition for Review and the Respondent's 55-page Oct. 3rd Petition for Review seeking Court review of certain parts of the Hearing Officer Report.

Posted by Marcia Oddi on Thursday, October 06, 2016
Posted to Indiana Courts

Ind. Courts - More on: Complaint filed against Johnson County prosecutor

Updating this ILB post from September 27th that quoted from a long story by Annie Goeller in the Johnson County Daily Journal, Goeller, managing editor of the Daily Journal, writes today in a long story:

The Johnson County prosecutor’s statements after a judge ruled a convicted murderer was not fit to be executed were not directed personally at the judge, and he did not violate professional rules of conduct, his attorneys said.

Prosecutor Brad Cooper is accused of violating professional rules of conduct for statements he made after a South Bend judge ruled in 2014 that Michael Dean Overstreet was not fit to be executed in the murder of Kelly Eckart.

Cooper’s attorneys and an attorney for the Indiana Supreme Court Disciplinary Commission both argued their cases in a Richmond courtroom Wednesday.

Now, Wayne County Superior Court Judge Charles Todd [ILB: Who was appointed by the Supreme Court as Hearing Officer in this attornewy disciplinary case] will allow at least 60 days for a transcript to be prepared and both sides to issue their final arguments before making a decision on whether Cooper violated the rule, which states “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.” * * *

[Cooper's attorney, James] Voyles also called multiple attorneys and judges from Johnson County to speak to Cooper’s character, including Johnson County Superior Court Judge Lance Hamner, Johnson County Circuit Court Judge Mark Loyd, defense attorneys Russell Johnson, Andrew Baldwin and Phil Wilson, deputy prosecutor Carrie Miles, Sutton and Stacy Uliana, whose son’s juvenile arrest was expunged by Cooper after the teen was wrongfully arrested in a bomb threat at Center Grove High School.

ILB: Here is the docket in the attorney discipline case, In The Matter of Bradley David Cooper (41S00-1509-DI-00520).

Posted by Marcia Oddi on Thursday, October 06, 2016
Posted to Indiana Courts

Ind. Courts - First ever Indiana domestic violence court

Roger Moon of the Bedford Times-Mail (as republished in The Indiana Economic Digest) reports in a long, worth reading in full, story:

BEDFORD — Three men who graduated Tuesday as the first-ever class from the first-ever — the only — domestic violence problem-solving court in Indiana told how their lives had been changed by their participation in the ground-breaking program. The three addressed family members, friends and criminal justice officials gathered in the Lawrence Superior I courtroom.

The court is offered through Lawrence Superior Court I under Judge Michael Robbins.

The men — Ben Baker, Roger Collier and Matt Tuell — were among 17 men who were accepted into the program and who, without it, would be incarcerated with the Indiana Department of Correction.

But, by meeting the stipulations of the problem-solving court and the goals specific to each participant, and by attaining graduation requirements, all three maintain they have turned their lives around.

Posted by Marcia Oddi on Thursday, October 06, 2016
Posted to Indiana Courts

Courts - "Donald Trump Often Made Donations to State Attorneys General Reviewing His Business"

That is the headline to a lengthy, $$$ front-page story in today's WSJ. The lede:

Republican presidential nominee Donald Trump has throughout his career given campaign contributions to state attorneys general while they weighed decisions affecting his business, a review of his political donations shows.
A search of the ILB shows a number of entries involving Mr. Trump's projects in Indiana. You can find them on this list of ILB posts; start near the bottom with the 2004 posts on Indian gaming and the French Lick casino in Orange County.

Posted by Marcia Oddi on Thursday, October 06, 2016
Posted to Courts in general | Indiana Government

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

For publication opinions today (1):

In In the Matter of the Involuntary Termination of the Parent-Child Relationship of N.G. (Minor Child), and N.R.G. (Mother) v. The Indiana Department of Child Services, an 8-page opinion, Judge Crone writes:

N.R.G (“Mother”) appeals the termination of her parental relationship with her daughter, N.G. She raises three issues, one of which we find dispositive: whether the trial court’s findings of fact are sufficient to satisfy the statutory mandate found in Indiana Code Section 31-35-2-8(c). Concluding that the trial court’s findings of fact are deficient, we remand for proper findings that support the judgment terminating Mother’s parental rights. * * *

Simply put, the trial court’s findings are so sparse that we cannot discern whether it based its termination order on proper statutory considerations. As we are not at liberty to scour the record to find evidence to support the judgment, we remand with instructions for the trial court to enter proper findings of fact and conclusions of law to support the termination of Mother’s parental rights.

NFP civil decisions today (2):

In the Matter of Paternity: Of the Unborn Child of C.C. (mem. dec.)

Claudette Branson v. Malcolm D. Branson, II (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on Thursday, October 06, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Court won't take Parkview rate suit: Hospital must reveal costs, discounts"

On September 6th, an ILB post began:

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.
Today Kelly reports that the Supreme Court voted Monday, Oct. 3, not to grant transfer, meaning the March 14th, 3-2 Court of Appeals ruling on an interlocutory appeal stands. (This information should be on the next Court's transfer list, which likely will not be issued until next Tuesday, October 12th.) Kelly's story this morning begins:
Parkview Hospital will have to release information in a local lawsuit about charges and discounts it provides to insured patients.

That’s because the Indiana Supreme Court decided this week not to take the case in question. The leaves in place a trial court and Indiana Court of Appeals decision in favor of Thomas Frost, who was catastrophically injured in a truck-motorcycle crash and taken by air to Parkview in October 2013.

The court heard oral arguments last month but ultimately voted 3-2 not to take the case.

Chief Justice Loretta Rush, along with Justices Steven David and Robert Rucker rejected the case while Justices Mark Massa and Geoffrey Slaughter would have taken it.

Posted by Marcia Oddi on Thursday, October 06, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Community groups question legal ethics in East Chicago lead crisis"

Here is the beginning of Sarah Reese's report in the NWI Times:

Community activists have raised questions about the ethical practices of some attorneys representing or looking to represent residents at an East Chicago public housing complex where the soil is highly contaminated with lead and arsenic.

A video posted Aug. 31 on Facebook by community group Calumet Lives Matter shows limousines parked in the neighborhood. Member Sherry Hunter said she recorded the video and has been urging residents to talk to attorneys working pro bono, that is, without charge.

Hunter also has been advocating on behalf of housing complex residents and those living in the middle part of the Calumet neighborhood, which is part of a U.S. Environmental Protection Agency Superfund site.

“You want someone that’s got your best interests at heart,” Hunter said.

The Indiana Rules of Professional Conduct say an attorney should not solicit prospective clients in person if the lawyer’s motive is financial gain, unless the person contacted is a lawyer or “has a family, close personal or prior professional relationship with the lawyer.” The rules also say any written solicitation should be clearly marked as an advertisement.

In the video, a woman referred to “Alvarez,” and Hunter said the limos were sent to take residents to a lawyer’s office in Crown Point.

Attorney Walter Alvarez, whose office is in Crown Point, said everyone picked up that day previously had contacted his office seeking a legal consultation.

Alvarez issued a statement that said, “Routinely, when fighting for justice, in behalf of disadvantaged persons — such as our neighbors in East Chicago, I find that the very corporations and government entities that harm such good people, in this case, those who poisoned the men, women, and children of the neighborhood, work hard to prevent access by the victims to medical, political, and yes, legal resources. When such resources do reach the victims, allegations such as this are vollied by my detractors.”

Along with the statement, Alvarez released a copy of a form he said each client he represents has signed. The form says, in part, that the client was not solicited by Alvarez’s office regarding lead in East Chicago and that they had a pre-set meeting.

“As the number of calls grew, a common problem emerged: a lack of transportation to seek the legal representation desired. Transportation was made available solely to efficiently hold a group meeting of citizens, without obligation,” Alvarez’s statement said.

David J. Chizewer, an attorney at Goldberg Kohn, in Chicago, said sending a limo to pick up someone who’s requested legal consultation doesn’t violate the text of the Rules of Professional Conduct, but it does send up a red flag.

[h/t Dan Cardin]

Posted by Marcia Oddi on Thursday, October 06, 2016
Posted to Environment | Indiana Law

Ind. Courts - "Vanderburgh Co. judges working to get mental health court certification"

Jess Raatz of WAVE3, Louisville, reports:

VANDERBURGH CO., IN (WFIE) -

Judges in Vanderburgh County are working towards a unique certification for a mental health court program, only the second of its kind in the state.

The certification means more funding possibilities, fewer mentally ill people in the overcrowded jail system, and more people in treatment.

More than 5,600 people in Indiana prisons have a mental health diagnosis. That's about 20% of the total prison population.

Currently, only Marion County's court system has a certified mental health court system, but judges in Vanderburgh County are well on their way towards achieving that distinction for southwestern Indiana.

Superior Court Judge Jill Marcrum heads the mental health court program in Vanderburgh County, which has been surviving on virtually no funding for several years. During that time, over 150 people have been referred to the program.

Posted by Marcia Oddi on Thursday, October 06, 2016
Posted to Indiana Courts

Wednesday, October 05, 2016

Ind. Law - Non-code provision plays a role in a Tax Court decision today

Today's Tax Court decision in Spencer County Assessor and Grass Township Assessor v. AK Steel Corporation, involves a lengthy non-code provision enacted by the General Assembly in 2008, relating to the taxation of personal property in certain integrated steel mills.

The ILB has written at length on "non-code" provisions in the past. For instance, this Feb. 2, 2009 ILB post begins:

IND. LAW - CAN YOU RELY ON THE INDIANA CODE? WHERE ARE WE WITH THE INDIANA CODE ISSUES?

In 2008 I published two articles in Res Gestae titled "Can You Rely on the Indiana Code?" Here is Part I from May, 2008, and here is Part II from October 2008.

The point of the articles was that all the state's substantive statute law was not included in the Indiana Code, that this fact was not general knowledge, and that the General Assembly should act to make all its statutes available in the Indiana Code.

For some coverage what followed, see this Oct. 26, 2010 ILB post titled "What's happening with fixing the Indiana Code? Part 3," and its links.

Posted by Marcia Oddi on Wednesday, October 05, 2016
Posted to Indiana Law

Ind. Decisions - Tax Court decides two today

In Hamilton Square Investment, LLC. v. Hamilton County Assessor, an 8-page opinion, Sr. Judge Fisher writes:

Indiana’s property tax caps provide taxpayers with credits against their Indiana property tax liabilities. See, e.g., IND. CODE § 6-1.1-20.6-7.5 (2016). The amount of a credit depends on, among other things, a property’s classification (e.g., homestead, residential, agricultural, or nonresidential) and its overall gross assessed value. See I.C. § 6-1.1-20.6-7.5. This case concerns Hamilton Square Investment, LLC’s claim that the Indiana Board of Tax Review erred in upholding the classification of its real property and, thus, the allocation of its tax cap credits for the 2012 tax year. Hamilton Square is correct. * * *

On appeal, Hamilton Square claims that the Indiana Board erred when it limited the term “common areas,” as used in the Residential Property Statute, to solely the land and improvements within the footprint of a multi-unit apartment building (e.g., hallways and stairways). (See Pet’r Br. at 13 n.8.) Hamilton Square maintains that for purposes of the Residential Property Statute, common areas should also include land and improvements beyond an apartment building’s footprint. (See, e.g., Pet’r Br. at 15-18.) (See also Amici Curiae Br. of Gene B. Glick Co., Dominion Realty, Inc., Samaritan Co., & Stygall Co. at 5-7.) * * *

[T]he actual structure and language of the Residential Property Statute does not limit common areas to an apartment building’s footprint as the Assessor has argued. See Indiana Dep’t of State Revenue v. Horizon Bancorp, 644 N.E.2d 870, 872 (Ind. 1994) (stating that “[n]othing may be read into a statute which is not within the manifest intention of the legislature as gathered from the statute itself” (citation omitted)).

CONCLUSION. For the foregoing reasons, the final determination of the Indiana Board is REVERSED. This matter is REMANDED to the Indiana Board so that it may instruct the appropriate assessing officials to take actions consistent with this opinion.

In Spencer County Assessor and Grass Township Assessor v. AK Steel Corporation, a 22-page opinion, Sr. Judge Fisher writes:
Indiana Code § 6-1.1-3-23 provides integrated steel mills with the option of using “Pool 5” to value their personal property for purposes of taxation. The statute defines an “integrated steel mill” as “a person . . . that produces steel by processing iron ore and other raw materials in a blast furnace in Indiana[.]” See IND. CODE § 6-1.1-3-23(a)(3) (2008) (amended 2011). On appeal, the parties have asked the Court to examine whether the “in Indiana” language contained in that definition is constitutional. The Court finds that AK Steel has not shown a constitutional infirmity. * * *

[ILB: See beginning on p. 3, a section titled titled "THE BACKSTORY – WHY WE ARE HERE," for discussion of a lengthy non-code provision [ILB emphasis, see ftnote on p. 5] intended to authorize an optional "fifth pool in the depreciation schedule for valuing the equipment of integrated steel mills [ and] related entities" intended to "to encourage th[at] industr[y] to continue to invest in northern Indiana." As noted in the footnote on p. 7, the legislature codified the non-code provision in 2011. ]

CONCLUSION AK Steel has not shown that the “in Indiana” language contained in Indiana Code § 6-1.1-3-23’s definition of an integrated steel mill is unconstitutional. Accordingly, the Indiana Board’s final determination is AFFIRMED in result.

Posted by Marcia Oddi on Wednesday, October 05, 2016
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (3):

Timothy French v. Stephen R. Elkin and Vanessa G. Elkin, and Greg Harmon and 21st Century Floor Covering, LLC (mem. dec.)

In re: Petition of Wiper Corp. for Tax Deed, Wiper Corp. v. Patricia Godwin, Barbara Sanders, et al. (mem. dec.)

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

NFP criminal decisions today (4):

Jeffrey Brinkley v. State of Indiana (mem. dec.)

Kazie Sekou Cole v. State of Indiana (mem. dec.)

Devell L. Coleman v. State of Indiana (mem. dec.)

Rebecca Lawson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, October 05, 2016
Posted to Ind. App.Ct. Decisions

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

In case you've lost track of the timetable, updating this ILB entry from August 22nd (which includes much information worth reviewing), nominating petitions were due Sept. 19th.

What happens next? Ballots and biographies of the candidates will be mailed to the home address of all Second District attorneys on Oct. 21st, and are due back by 4 PM on Nov. 18th.

At 4 PM on Nov. 18th the Clerk of the Court will count the ballots.

The winner will assume the seat now held by Lee Christie, Esq., which expires on Dec. 31, 2016.

Posted by Marcia Oddi on Wednesday, October 05, 2016
Posted to Indiana Courts

Ind. Courts - "Surgeon accused of hurting assistant at Hobart hospital"

Non-election news is sparse this morning. But this story from Sept. 30th in the NWI Times, reported by Sarah Reese, is notable. Some quotes:

HOBART — A Merrillville orthopedic surgeon faces a misdemeanor battery charge alleging he became angry Aug. 30 in a surgical room at St. Mary Medical Center. He allegedly caused an assistant’s finger to bleed by placing a medical instrument on it and hitting her wrist with a second instrument.

Dr. Joseph B. Koscielniak Jr., 63, was charged Sept. 16 in Hobart City Court with Class A misdemeanor battery, records show. * * *

According to a probable cause affidavit, Koscielniak was in surgery between 12:30 and 1 p.m. Aug. 30 and became angry about a medical instrument he was using.

The surgeon became verbally abusive toward the surgical team, threw several instruments and allegedly told one assistant, “I am going to punch you, push you or knock you to the ground,” the affidavit said.

Another female assistant told police she told Koscielniak, “You are not going to talk to us like that.”

Koscielniak allegedly grabbed an instrument described as a clamp and placed it on the woman’s right index finger, asking, “How does that feel?” according to the affidavit.

The woman, in shock, removed the instrument, and Koscielniak asked her to check her glove “to make sure she was not bleeding in the surgical room,” the affidavit said.

The woman saw there was blood coming from her finger. Koscielniak then grabbed an instrument called a mallet and slammed it back toward the surgical cart, hitting her right wrist with the instrument, the affidavit said.

The woman left the surgical room and reported the incident to her supervisor, who sent her for medical treatment, court records said. Hospital security staff notified Hobart police, who gathered contact information for all possible witnesses, the affidavit said.

Posted by Marcia Oddi on Wednesday, October 05, 2016
Posted to Indiana Courts

Tuesday, October 04, 2016

Ind. Courts - "Disbarred Goshen attorney files appeal"

Adding to a long list of ILB posts on Joseph Lehman (including "Goshen lawyer suspended from practicing law to run for Elkhart Circuit Court judge" from Feb. 5, 2016), Sherry Van Arsdall reports today in the Goshen News:

A Goshen attorney has filed an appeal after being disbarred by Chief Judge Philip P. Simon of the United States District Court for the Northern District of Indiana.

The disbarment was imposed on Joseph Lehman for his contempt of court by practicing law on multiple occasions while under previous disciplinary suspensions in a ruling Aug. 4. * * *

Lehman was disbarred by the Indiana Supreme Court in February 2014 for five counts of misconduct and would have to undergo a reinstatement process outlined by the court and pay the $7,760 cost of his disciplinary hearing, in order to be readmitted to the bar, according to that ruling.

Then in 2015 Lehman was charged and convicted of three counts of practicing law by a non attorney, Class B misdemeanors. Judge David Bonfiglio sentenced Lehman to 180 days in the Elkhart County jail with 180 days suspended and one year reporting probation for those convictions. Lehman was fined $200 plus ordered to pay $183 in court costs and restitution in that case in the amount of $50.

Posted by Marcia Oddi on Tuesday, October 04, 2016
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today [ILB summary now corrected]

In Robert Lewis, III v. State of Indiana, a 4-page, 5-0 opinion, Justice Massa writes:

The trial court affirmed the sentence on remand, and Lewis again appeals, on grounds not previously raised, that imposition of a life sentence violated the Sixth Amendment because the sole aggravating factor supporting the sentence was not determined by the trier of fact beyond a reasonable doubt during the penalty phase. The State does not contest this previouslyoverlooked argument, and agrees that this Court should “reverse the sentence and, as it has done in the past, remand to the trial court to hold a new sentencing hearing and sentence Lewis to a term of years.” * * *

Lewis was convicted of murder, murder in the perpetration of criminal deviate conduct, criminal deviate conduct as a Class A felony (since it resulted in serious bodily injury), and resisting law enforcement as a Class D felony. But we may not give sentences on all four of these counts without running afoul of the double jeopardy restrictions in the Indiana Constitution, as there is a reasonable possibility that the jury may have used the same evidentiary facts to convict Lewis of the essential elements of multiple of these charges. See Gross v. State, 769 N.E.2d 1136, 1139 (Ind. 2002), Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). Accordingly, we revise Lewis’s sentences to 65 years for murder, Indiana Code sections 35-42-1-1(1) (2008) and 35-50-2-3(a) (2008), 20 years for criminal deviate conduct as a Class B felony, Indiana Code sections 35-42-4-2(a) and 35-50-2-5, sustain his prior sentence of 3 years for resisting law enforcement, Indiana Code sections 35-44-3-3(b) and 35-50-2-7(a) and vacate his conviction for felony murder in the perpetration of criminal deviate conduct.2 Moreover, given the depravity of these crimes (as detailed in our previous opinion, see Lewis, 34 N.E.3d at 242–45), we further order each of these terms to run consecutively, pursuant to Indiana Code section 35-50-1-2(c) (2008), for a total term of 88 years. We remand this matter to the trial court with instructions to impose these sentences, and for all other proceedings consistent with this opinion.

ILB Note: Earlier today, the Court briefly posted an opinion from another, earlier appeal by Lewis. That opinion has been replaced; the ILB has now summarized today's opinion.

Posted by Marcia Oddi on Tuesday, October 04, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Charles McKeen, M.D. v. Billy Turner, a 24-page opinion, Judge Baker writes:

Relying on the Indiana Medical Malpractice Act and precedent from our Supreme Court, we hold that a medical malpractice plaintiff need only present the following to a medical review panel: (1) a proposed complaint that encompasses the theories of malpractice alleged in the subsequent litigation sufficiently to satisfy our notice pleading requirements; and (2) evidence relating to the theories of alleged malpractice that the plaintiff seeks to raise during the subsequent litigation. Additionally, we hold that narrative statements submitted to the panel do not subsequently bind the parties. Because these requirements were met in this case, we affirm the trial court’s order and remand for further proceedings. * * *

Dr. McKeen argues that the trial court should have granted his motion to strike the testimony of Dr. Manges insofar as that testimony relates to the prescription (or lack thereof) of anticoagulation medicine to Rowena during and immediately following the first hospital stay. Dr. McKeen contends that because this theory of liability was not presented to the MRP, Turner is prohibited from raising it at this point. Dr. McKeen relies primarily on caselaw in making his argument, although an exploration of relevant statutes is also required. * * *

In this case, Turner’s proposed complaint encompassed the allegations related to the anticoagulation medication prescribed during and after the first hospital stay. And evidence related to those allegations was before the MRP. Consequently, the trial court properly denied Dr. McKeen’s motion to strike evidence related to those allegations.

Conclusion. The Act requires that the MRP consider two things in reaching its conclusion on a claim of medical malpractice: (1) the proposed complaint; and (2) the evidence submitted by the plaintiff. Our Supreme Court has held that so long as, under principles of notice pleading, the proposed complaint encompasses specific allegations regarding the defendant’s alleged malpractice that were not explicitly raised to the MRP, those allegations may be raised for the first time during subsequent litigation. In other words, the plaintiff’s narrative at trial need not be identical to his MRP narrative so long as evidence relating to his theories of malpractice was before the panel.

To synthesize these two sources of authority, we hold that a plaintiff may raise any theories of alleged malpractice during litigation following the MRP process if (1) the proposed complaint encompasses the theories, and (2) the evidence related to those theories was before the MRP. In this case, those requirements were met, and Turner may therefore raise his theory related to the anticoagulant at this time.

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

ILB Note: McKeen v. Turner is Judge Baker's 5,000th opinion for the Court of Appeals.

To clarify:
This is Judge Baker's 5,000th authored majority Court of Appeals opinion.

NFP civil decisions today (1):

In the Matter of: A.K., A Child in Need of Services: J.K. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (1):

Jorge Lopez v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, October 04, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides SSA appeal with a reversal

In George Meuser v. Carolyn Colvin (SD Ind., Hussmann, MJ), a 16 page per curiam opinion, the panel writes:

George Meuser suffers from schizophrenia and applied for Disability Insurance Benefits principally be‐ cause of that impairment. But an administrative law judge concluded at Step 2 of the 5‐step disability analysis that Meuser’s schizophrenia was not a severe impairment and denied benefits on that basis. A magistrate judge presiding by consent, see 28 U.S.C. § 636(c), upheld that ALJ’s decision, but Meuser argues that it rests on a profound misunder‐ standing of the medical evidence and thus is not supported by substantial evidence. We agree. * * *

Meuser, after all, is not claiming that he is disabled by physical limitations, so the proper focus— ignored by the ALJ—is the effect of Meuser’s schizophrenia on his mental functioning, including his abilities to concen‐ trate, perform work tasks without constant supervision, maintain a consistent pace, and work around and with other persons. Whether or not he can pop a frozen dinner into the microwave or occasionally clean the litterbox is irrelevant. Moreover, the ALJ asserted that Meuser was only mildly lim‐ ited in social functioning in part because he was able to spend time with his parents and he got along well with coworkers when he did work. But the ALJ disregarded evi‐ dence that Meuser was “extremely reclusive,” that he seemed to spend time only with his parents, and that his on‐ ly interactions with coworkers were before his alleged onset date. 

III.  CONCLUSION. Because the ALJ misunderstood the medical evidence and improperly rejected the treating psychiatrist’s opinion, the ALJ’s conclusion that Meuser did not have a severe im‐ pairment is not supported by substantial evidence. We there‐ fore REVERSE the judgment of the district court and REMAND the matter to the agency for further proceedings.

Posted by Marcia Oddi on Tuesday, October 04, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on: 7th Circuit decides Indiana case re Syrian refugees

Updating this ILB post from yesterday, here is the ACLU of Indiana news release. A quote:

"The Court of Appeals' decision underscores what we have said throughout this litigation," said Ken Falk, legal director of the ACLU of Indiana. "Governor Pence may not constitutionally or legally discriminate against a particular nationality of refugees that are extensively vetted by the federal government."

"A court has once again rejected Indiana's efforts to block the resettlement of Syrian refugees. This ruling is a stinging rebuke of Governor Mike Pence's anti-refugee actions," said Omar Jadwat, senior staff attorney with the ACLU's Immigrants' Rights Project.

Here are some quotes from a story by Julian Hattem, of The Hill:
In harsh language, a three-judge panel on the Seventh Circuit Court of Appeals accused the Republican vice presidential nominee of unfairly attacking Exodus Refugee Immigration for resettling the refugees, despite “no evidence” that the migrants might be terrorists in disguise.

“[I]t is nightmare speculation,” Judge Richard Posner declared in his opinion.

Pence’s policy barring payments to the organization “is discrimination on the basis of nationality,” Posner declared.

The ruling, which affirmed an injunction handed down by a lower court, is a harsh indictment of the governor's policy, and comes a day before he is set to debate Sen. Tim Kaine (Va.), the Democratic nominee for president.

The decision is all the more jarring given the conservative slant of the court.

Both Posner and Judge Frank Easterbrook, another member of the three judge-panel, were appointed by Ronald Reagan.

Judge Diane Sykes, the final judge on the appeals panel, was listed by Donald Trump as one of his potential picks to replace Antonin Scalia on the Supreme Court, should he be elected president.

Here is a list of the ILB's posts on the Syrian refugee issues.

Posted by Marcia Oddi on Tuesday, October 04, 2016
Posted to Ind. (7th Cir.) Decisions

Monday, October 03, 2016

Ind. Gov't. - More on the Indiana attorney general race

Rick Callahan of the AP has a story today on the two candidates who " are vying for the attorney general post, which has been held by Republicans since 2001."

Posted by Marcia Oddi on Monday, October 03, 2016
Posted to Indiana Government

Ind. Courts - "My grandfather and the First Amendment"

That is the heading of Alexandra Petri's long post today in her Washington Post blog. Some quotes:

It was Tuesday, July 20, 1965. [James T.] Neal was editor of the Noblesville Daily Ledger, a small Indiana newspaper. The day before, he had been arrested and charged with contempt of court for a column he had written criticizing a judge’s new policy to crack down on traffic violations.

The case made local, then national headlines: EDITOR AT NOBLESVILLE RAPS JUDGE; ARRESTED (Rushville Daily Republican of Rushville, Ind.); CHARGE OF CONTEMPT FILED AGAINST EDITOR (Indianapolis Star); IRKED JURIST HAS EDITOR ARRESTED (The News-Palladium of Benton Harbor, Mich).

Neal had not expected to make national news defending freedom of the press. He had not expected his “County Line” column to make news of any kind. As he told the Kokomo Morning Times, “I write a 700-word piece for the County Line almost daily so I never know what to expect from each paragraph.”

He had certainly not anticipated that one paragraph in his Saturday column would so incense Hamilton County Circuit Court Judge Edward New that he would issue him a citation for contempt of court. The citation charged Neal with writing “a disdainful, despicable, scurrilous and contemptuous article about this court” that was “intended to inflict ridicule and indignity on the image of the Hamilton Circuit Court and embarrass the judge thereof, and all law enforcement officers in the county.”

No column would have merited arrest, but this one was considerably milder than the citation made it sound. Neal had called the newly announced policy, which would send all traffic violators to Circuit Court, “an excellent example of shotgun justice,” noting, “it isn’t necessary to upset a whole community to get at the handful of motorists who run wild on the highways. If the past proves a good example, what will happen is some kindly old lady will spend the night in jail for driving too slow, while some mad motorist charged with manslaughter will eventually stall his trial right out of court.”

That is just a sample. From near the end of the long tribute:
James T. Neal was my grandfather. He passed away this week.

In the days since losing him I have been hunting down this story in newspaper archives — partly to pay tribute to his work for journalism, but also, selfishly, so that I could hear from him again. And he is there to be found, in all the stories, in every interview, with his familiar quiet humor and steady dedication to doing what was right. Each sentence is a gift, another chance to wrap a familiar, beloved voice around myself like an old sweater.

ILB: Here is James T. Neal's obituary (Jan 5, 1921 - Sep 27, 2016). It begins:
James T. Neal, 95, who died September 27 in Indianapolis, was the third generation in his family to own, edit, and publish the Noblesville Daily Ledger. He began his 36-year newspaper career as a paper carrier and eventually, as editor, guided the newspaper in 1980 to the title of Blue Ribbon Newspaper in the annual contest of the Hoosier State Press Association. Neal wrote a daily column six days a week for 25 years.

His commitment to freedom of the press and honest and open government prompted his induction in 1990 to the Indiana Journalism Hall of Fame. He had previously received the Ball State University Honors Award for Distinguished Service in Journalism.

Posted by Marcia Oddi on Monday, October 03, 2016
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending September 30, 2016

Here is the Clerk's transfer list for the week ending Friday, September 30, 2016. It is one page (and 1 case) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, October 03, 2016
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit decides one Indiana case today, re Syrian refugees

In Exodus Refugee Immigration, In v. Michael Pence (SD Ind., Pratt), a 6-page opinion, Judge Posner writes:

The governor’s brief asserts “the State’s compelling interest in protecting its residents from the well‐documented threat of terrorists posing as refugees to gain entry into Western countries.” But the brief provides no evidence that Syrian terrorists are posing as refugees or that Syrian refugees have ever committed acts of terrorism in the United States. Indeed, as far as can be determined from public sources, no Syrian refugees have been arrested or prosecuted for terrorist acts or attempts in the United States. And if Syrian refugees do pose a terrorist threat, implementation of the governor’s policy would simply increase the risk of terrorism in whatever states Syrian refugees were shunted to. Federal law does not allow a governor to deport to other states immigrants he deems dangerous; rather he should communicate his fears to the Office of Refugee Resettlement.

He argues that his policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the safety of residents of Indiana. But that’s the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality.

A final oddity about the governor’s position is how isolated it is. There are after all fifty states, and nothing to suggest that Indiana is a magnet for Syrians. Although in the fall of 2015 a number of state governors issued statements opposing the resettlement of Syrian in their domains, their opposition petered out. Since then Syrian refugees have been resettled in 40 states (Indiana of course is one of them), and there is no indication that their absence from the other 10 is attributable to actions by state governments. Indiana is free to withdraw from the refugee assistance program, as other states have done; yet withdrawal might not interrupt the flow of Syrian refugees to the state because in states that choose not to participate in the refugee assistance program the federal government has been authorized to establish an alternative program, called Wilson/Fish, that distributes federal aid to refugees in a state without the involvement of the state government. 8 U.S.C. § 1522(e)(7); 45 C.F.R. § 400.69.

The district judge granted a preliminary injunction in favor of Exodus because she believed it likely to prevail in the trial on the merits that is the usual next stage of litigation after the issuance of such an injunction. She was right, and therefore the preliminary injunction is   AFFIRMED.

Posted by Marcia Oddi on Monday, October 03, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (0):

NFP civil decisions today (2):

In the Term. of the Parent-Child Relationship of H.L. (Minor Child), C.L. (Mother) and L.F. (Father) v. The Ind. Dept. of Child Services

Cynthia Brown and Gregory Brown v. The Boeing Company (mem. dec.)

NFP criminal decisions today (1):

Jeffrey Ashley v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, October 03, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Commercial courts and e-filing focus of Supreme Court symposium

Updating this ILB post from September 27th on the Supreme Court symposium on its commercial courts pilot project:

The ILB post disclosed, inter alia, that 34 cases have filed in the pilot commercial courts. Although most of these (27) have been filed in Marion Superior Court, Civil Division 1, as Chief Justice Rush pointed out:

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.

The Court has now made available a video of the symposium. These statements from Marion Superior Court Judge Heather Welch explain how Indiana businesses will benefit from the practices and procedures in the commercial court [ILB emphasis]:

There's a number of ways that happens, certainly, we expect a higher level of predictability, and anyone that has practiced law understands the value of predictability on the bench.

If you don't know how a judge is likely to rule, it is very difficult to advise your client. It is very difficult to assess the risks and benefits of any kind of litigation.

By having a relatively small number of judges and by making available our decisions, which we hope to be able to do early on, we think we will improve predictability.

But we'll also be able to provide a quicker resolution. Partly because of the benefits of experience and handling more of these types of cases, but also because resources have been provided to us by the Indiana supreme court, by way of law clerks, among other things.

We hope that the practices and procedures that we have developed will also promote efficiency. I can give you an example from a case filed in my court. I had a case management conference with attorneys just last Friday. And I was thrilled by how they had bought into the process. They came to court with a well-thought out, well-developed case management plan, which solved many of the problems that, normally, I would have to solve for attorneys as a judge. I suppose if all lawyers were as cooperative and well prepared as these two we wouldn't need commercial courts, but I suspect there's job security in this for us anyway.

We also hope to bring expertise to this. We attended training through the national judicial college and also, in our experience on the bench, have developed some expertise as well.

At another point in her presentation, when discussing making rulings on complex motions, Judge Welch had additional, related remarks at about 49:19 :
... It is my practice, and I think it will be the practice of my colleagues here, I take those complex cases under advisement. Luckily I have a law clerk, Peter Elliott ... , he is very, very helpful. You cannot imagine as a busy trial court judge what it is like when you, as lawyers, only provide me an 80-page brief and so does your opponent, and so working through that, and working through the cases, it is important that the judge read that information and come to a well-reasoned opinion.

One observation Professor-Justice Sullivan made is that we can widen the number of cases that the appellate courts decide and provide more guidance from an appellate standpoint also on complex commercial cases. I hear lawyers say we don't have anything in this area, what do you do? Well, I think you'll find some of us may turn to other states for guidance and then we'll turn to the court of appeals and supreme court here in Indiana.

Posted by Marcia Oddi on Monday, October 03, 2016
Posted to Ind. Commercial Courts

Ind. Gov't. - Dem. AG candidate: "State must stop pushing agendas via lawsuits"

Some quotes from a letter by Lorenzo Arredondo, a retired Lake County Circuit Court judge, who is the Democratic nominee for Indiana attorney general, published 9/28/16 in the Fort Wayne Journal Gazette:

Gov. Mike Pence tried to stop Syrians from settling in our state by denying them assistance funded by the federal government and administered by state government.

A social services organization sued, arguing Pence’s order was unconstitutional because it penalized only Syrian refugees participating in a federal resettlement program, even though they have been vetted by the State Department. A federal district judge issued an injunction, saying Pence’s action “clearly constitutes national origin discrimination.”

Had the current attorney general exercised good judgment and demonstrated common sense, he would have accepted that decisive and unequivocal ruling – and that would have been the end of the matter. Indiana’s attorney general has that sort of discretion. But instead, he viewed the issue through a political prism and appealed.

The panel of judges for the Seventh Circuit Court of Appeals harshly and incredulously questioned the thinking behind Pence’s order and blasted the Indiana solicitor general, an employee of the Office of the Attorney General who argued the case. One member of the panel said to the solicitor general, “Honestly, you are so out of it.”

Indiana taxpayers are paying for this. They also have footed the bill when the attorney general, pursuing his own political or ideological positions, has sued the federal government, including efforts to deny Hoosiers access to health care. My opponent has pledged to take the same, wrong-headed approach.

This is not to say that I will never use the courts to do what is right for Hoosiers. A good example of the right approach is former Indiana Attorney General Jeff Modisett’s decision to lead a multistate lawsuit against tobacco companies, arguing that states had spent a fortune treating Medicaid recipients with tobacco-related illnesses caused by these companies. The states won more than $200 billion, millions of which came and are still coming to Indiana.

As your next attorney general and the state’s chief consumer advocate, I will never pursue a lawsuit to advance my own political or ideological positions. I will carefully weigh whether a majority of Hoosiers will benefit by our state’s participation in a lawsuit and participate only if the answer is “yes.”

Posted by Marcia Oddi on Monday, October 03, 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 10/3/16):

Thursday, October 6

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

Webcasts of Supreme Court oral arguments are available here.




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

Monday, October 3

Wednesday, October 5

Thursday, October 6

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

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, October 03, 2016
Posted to Upcoming Oral Arguments

Saturday, October 01, 2016

Ind. Decisions - More on "Indiana officials call $31 million judgment in DCS case 'monstrously excessive'" [Updated]

Updating this ILB post from November 30, 2015, which quoted a story from the Indianapolis Star's Marisa Kwiatkowski that began:

State officials want a federal judge to reduce the $31 million judgment they were ordered to pay to an Indiana family "destroyed" by accusations the parents had caused their 14-year-old daughter's death.

Last month, a federal court jury in Hammond determined three Indiana Department of Child Services employees, an Indiana State Police detective and a doctor had violated the constitutional rights of Roman and Lynnette Finnegan and their children. The officials were accused of falsifying records, sabotaging investigations into the death and retaliating against the couple for complaining about how they were treated.

Yesterday federal Judge Rudy Lozano issued a 17-page opinion in Finnegan v. Myers, denying the motion to reduce the judgment. Here is a copy of the September 30, 2016 opinion.

[Updated on Wed., Oct. 4] Here is Marisa Kwiatkowski's Indianapolis Star story posted this morning, headed "Judge denies DCS request to reduce $31M judgment."

Posted by Marcia Oddi on Saturday, October 01, 2016
Posted to Ind Fed D.Ct. Decisions