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Wednesday, November 30, 2016

Ind. Courts - Still more on "7th Circuit can make civil rights history for gay and lesbian employees" [Updated]

Here is the direct link to today's en banc oral argument in Kimberly Hively v. Ivy Tech Community College. It is 55 minutes long. (The ILB earlier was confused by the 22-minute audio of the 3-judge panel oral argument).

All 9 active judges on the 7th Circuit participated, along with (as the rules provide) the two senior status judges who were on the original panel. This leaves only Senior Judge Manion as a non-participant. So the lineup today was: Wood, Bauer, Posner, Flaum, Easterbrook, Ripple, Kanne, Rovner, Williams, Sykes, and Hamilton.

In trying to distinguish the voices, be aware that the judges who didn't ask questions were Judges Flaum, Ripple, and Bauer (the latter two have senior status and were on the original panel).

The female questioners are Chief Judge Wood, Judges Williams, Sykes and Rovner (Rovner BTW was on the original panel and asked all the questions at that time).

The male judges' voices are Easterbrook, Posner, and Hamilton. (Update: And Kanne, sorry)

[Updated 12/6/16]
Here is a key to identifying the speakers in the Hively en banc argument, courtesy of Equality Case Files.

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

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 13 NFP memorandum decision(s))

For publication opinions today (4):

In Mark Vinup v. Joe's Construction, LLC and Joe Getz and Property-Owners Insurance Company v. Joe's Construction, LLC and Joe Getz, a 19-page opinion, Judge Kirsch writes:

After Mark Vinup (“Vinup”) was injured on the job while working for Joe’s Construction, LLC and Joe Getz (together, “Joe’s Construction”), Vinup filed a lawsuit against Joe’s Construction seeking damages for his personal injuries. The commercial general liability insurer for Joe’s Construction, PropertyOwners Insurance Company (“Property-Owners”), filed a declaratory judgment action, seeking a declaration that, pursuant to a policy exclusion, it had no duty to defend and no duty to pay any judgment that might be rendered against Joe’s Construction or Joe Getz (“Getz”). The trial court consolidated the declaratory judgment action with Vinup’s action, and, thereafter, Property-Owners and Joe’s Construction each filed a motion for summary judgment. The trial court granted both motions, and Vinup now appeals, raising several issues that we consolidate and restate as: Whether the trial court erred when it determined as a matter of law that Vinup was an employee of Joe’s Construction at the time he was injured. We affirm. * * *

Property-Owners maintain that Vinup was not a “temporary worker” as that term is defined in the Policy. Property-Owners emphasizes that a “temporary worker,” as defined in the Policy is someone who is “furnished to the insured to substitute for a permanent employee or to meet seasonal or short-term workload conditions.” Id. at 112 (emphasis added). Vinup was neither “furnished” to Joe’s Construction by some other party nor was he substituting for a permanent employee. Therefore, Property-Owners asserts, Vinup did not qualify under the Policy’s definition of “temporary worker.” We agree. Vinup testified that Getz asked for his help with the Aberdeen Project, and Getz testified likewise, stating that he offered the work to Vinup. Id. at 154, 193. Under the plain language of the Policy, Vinup was not a “temporary worker,” and the trial court did not err when it granted Property-Owners’s motion for summary judgment.

In Judi Simek, and Scott Everett v. Christopher Nolan d/b/a Lakeside Farm, LLC, and William P. McCall, III, an 11-page opinion, Judge Crone writes:
Judi Simek brings an interlocutory appeal from the trial court’s denial of her motion to reconsider its previous denial of her motion to dismiss the claims filed against her by Christopher Nolan d/b/a Lakeside Farm, LLC, and William P. McCall, III (collectively “the Plaintiffs”). Specifically, Simek asserts that dismissal is warranted pursuant to Indiana Rule of Trial Procedure 12(B)(2) because the trial court lacks personal jurisdiction over her. We agree and therefore reverse and remand with instructions for the trial court to dismiss the Plaintiffs’ claims against Simek. * * *

Simek’s sole relationship with this litigation is the fact that she appears to have a current business arrangement with Everett regarding the ownership of Cinnamon Beach. There are no facts to indicate that she personally initiated, expected, or encouraged contacts with Indiana such that she could have reasonably foreseen being haled into court here. This case is a prime example of when a defendant cannot be haled into a jurisdiction solely as a result of the unilateral activity of another party and/or a third person. Simply put, Simek does not have a substantial connection to Indiana, and therefore she cannot be said to have purposely availed herself of the trial court’s jurisdiction.

In sum, Indiana lacks specific jurisdiction over Simek. Her alleged conduct, even when viewed in the light most favorable to the Plaintiffs, did not establish a substantial connection between herself and this State, and thus cannot support personal jurisdiction. Simek has established prima facie error in the trial court’s denial of her motion to reconsider her motion to dismiss for lack of personal jurisdiction. Consequently, we reverse and remand with instructions for the trial court to dismiss the Plaintiffs’ claims against Simek.

In Hannum Wagle & Cline Engineering, Inc. d/b/a HWC Engineering, Inc., Marlin A. Knowles, Jr., Jonathan A. Day, Tom Mobley, and David Lancet v. American Consulting, Inc., et al., a 41-page opinion (including a concurring opinion) involving "a lawsuit for, among other things, breach of contract" a non-compete agreement and a preliminary injunction. Judge Kirsch writes the majority opinion, affirming the trial court. Judge Baker's concurring opinion, which begins on p. 40:
I am compelled to concur fully with the majority opinion, but I write separately to voice my serious concerns about the extreme breadth of clause two of the relevant provision in the Knowles Agreement. Specifically, Knowles may not “solicit or communicate with any such customers for the purpose of selling, providing, attempting to sell or provide, or assisting any person or entity in the sale or provision of, any Competing Products/Services[.]” HWC Appellant’s App. p. 135-37 (emphasis added). To tell a person who works in sales that he may not even communicate with past or potential clients is to take away his proverbial bread and butter. He may no longer schmooze. That is far too draconian to sit comfortably with me. And in this case, it goes a step farther, because the past and potential clients are all government employees, which takes it even farther into an overly restrictive realm.

We have largely moved as a society from an economy of goods to an economy of services. The disfavor with which this State views restrictive covenants should be heightened, in my view, where the purported irreparable harm cannot be quantified—which is almost always the case when it is the provision of services that is at the heart of a restrictive covenant. Under these circumstances, I believe only the narrowest of restrictive covenants should be enforceable, and I do not believe that clause two of the Knowles Agreement qualifies. With the current state of caselaw, however, I am compelled to concur fully with the majority opinion.

In Sauntio Carter v. State of Indiana, an 18-page opinion (including a concurring opinion), Judge Riley writes:

Carter claims that there is insufficient evidence to uphold his battery conviction. * * *

It is well established that “[a] parent has a fundamental liberty interest in maintaining a familial relationship with his or her child.” Willis v. State, 888 N.E.2d 177, 180 (Ind. 2008). Included within this fundamental liberty interest is “the right of parents ‘to direct the upbringing and education of children,’ including the use of reasonable or moderate physical force to control behavior.” Id. (internal citation omitted) (quoting Pierce v. Soc’y of Sisters, 268 U.S. 510, 534- 35 (1925)). However, the State also “has a powerful interest in preventing and deterring the mistreatment of children[,]” and “the potential for child abuse cannot be taken lightly.” Id. Thus, prosecutors and courts are left with the difficult task of determining “when parental use of physical force in disciplining children turns an otherwise law-abiding citizen into a criminal.” * * *

In order to convict a parent for battery where parental privilege is asserted, “the State must prove that either: (1) the force the parent used was unreasonable or (2) the parent’s belief that such force was necessary to control [his or] her child and prevent misconduct was unreasonable.” Id. (citing Restatement of the Law (Second) Torts, § 147 (1965)). Here, the State does not contest the reasonableness of Carter’s belief that the use of force was necessary. Rather, the State maintains that Carter exerted unreasonable force in disciplining M.C., such that the parental privilege is negated.

While there “are no bright-line rules” as to what is considered “proper and reasonable parental discipline of children[,]” the Indiana Supreme Court has adopted the view that “[a] parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his [or her] child as he [or she] reasonably believes to be necessary for [the child’s] proper control, training, or education.’” * * *

Ultimately, the trial court concluded that Carter’s use of force—i.e., at least fourteen strikes with a belt which resulted in significant bruising and lasting pain—exceeded reasonableness, and on appeal, we are mindful of the trial court’s role in weighing the evidence and assessing witness credibility to determine whether a parent’s actions were justified as reasonable parental discipline. See Smith, 34 N.E.3d at 255. Although we are troubled by the lack of clear guidance for parents to be able to distinguish between reasonable discipline and battery, it was the trial court’s duty to balance the Willis factors, and we decline to reweigh the evidence. Thus, we conclude that there is sufficient evidence to support Carter’s conviction for battery resulting in bodily injury. * * *

Robb, J. concurs
Crone, J. concurs with separate concurring opinion [that begins on p. 16]

As noted above, “prosecutors and courts are left with the difficult task of determining ‘when parental use of physical force in disciplining children turns an otherwise law-abiding citizen into a criminal.’” Slip op. at 6-7 (quoting Willis, 888 N.E.2d at 180). I write separately to suggest that our supreme court made that task much more difficult by importing the vague reasonableness standard of the Restatement of Torts into the criminal arena. * * *

That being said, courts must step in where legislatures decline to tread, so unless and until the General Assembly enacts clearer guidelines for parental discipline (or our supreme court adopts a more workable standard), trial judges and jurors must rely on their experience and judgment to determine when parents cross over the blurry line that separates lawful from unlawful conduct, and appellate courts must give those determinations significant deference. For that reason, I reluctantly concur in my colleagues’ affirmance of Carter’s battery conviction.

NFP civil decisions today (3):

In the Termination of the Parent-Child Relationship of J.P.: J.S. (Father) v. The Indiana Department of Child Services (mem. dec.)

Kenneth Slate v. The Health and Hospital Corporation of Marion County, Indiana, Public Health Division (mem. dec.)

In the Term. of the Parent-Child Relationship of: A.F. (Minor Child), and D.F. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (10):

Matthew C. Elzey, Jr. v. State of Indiana (mem. dec.)

Ronnie Bradfield v. State of Indiana (mem. dec.)

Jeremy Shrum v. State of Indiana (mem. dec.)

Darrell A. Williams v. State of Indiana (mem. dec.)

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

Zachary Clark v. State of Indiana (mem. dec.)

Sammie L. Binion v. State of Indiana (mem. dec.)

Corey Brown v. State of Indiana (mem. dec.)

Brent A. Clemons v. State of Indiana (mem. dec.)

Muhamed Dugonjic v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, November 30, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Update on the Commercial Courts project

On Sept. 27th of this year, the ILB reported:

MyCase.in.gov now has a separate option for "commercial courts." A search run this afternoon by the ILB disclosed that currently 34 cases have filed in the commercial courts around the state.

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

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

Today, two months later, the ILB has run another search. The results:

Posted by Marcia Oddi on Wednesday, November 30, 2016
Posted to Ind. Commercial Courts

Ind. Decisions - Judge dismisses City of Fort Wayne v. SW Allen Co. Fire District and Auditor

James Duffy reported today in the Fort Wayne Journal Gazette - some quotes:

The city of Fort Wayne will have to find another way to claim lost taxes after a judge Monday dismissed a suit filed in May against the Southwest Allen County Fire Protection District, based in Aboite Township, and county Auditor Tera Klutz.

Allen County Superior Court Judge Craig J. Bobay dismissed the suit, saying his court does not have jurisdiction over the case.

The lawsuit covered 1987 to 2006 and claimed that property taxes collected by the Southwest Allen County Fire Protection District should have gone to the Fort Wayne Fire Department. The FWFD had taken over fire protection in an annexed area formerly served by the southwest fire district. * * *

The city’s suit alleged that Klutz had misread the applicable state statute. Klutz disputed the city’s contention that she incorrectly interpreted the law. The city claimed that annexation law was applicable, not tax law.

But Bobay said the city was required to initiate a required administrative appeal from which the state-based Department of Local Government Finance could make a final determination on the matter.

Then the city could seek a judicial review from the Indiana Tax Court.

Read the story for more. Here is the 15-page opinion, dated Nov. 28, 2016.

Posted by Marcia Oddi on Wednesday, November 30, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Jury finds for Elkhart hospital in malpractice case: Psychiatric patient sexually assaulted by another patient"

Virginia Black reports in the South Bend Tribune in a story that begins:

ELKHART — A lengthy medical malpractice trial ended with a jury deciding Elkhart General Hospital was not in the wrong after a patient on its psychiatric wing was sexually assaulted twice by a patient in the next room in 2008.

The trial, which began Nov. 15 and ended Wednesday, involved a young woman who was admitted to the psychiatric wing after being diagnosed as psychotic and suicidal. She had become convinced she was being left behind by the "rapture" of Christians being lifted to heaven.

Having seen another patient — a middle-aged man admitted for detox services — wrapped in a bedsheet, she believed he was Jesus, court documents say. She told hospital officials she wanted to wash the man's feet, and at one point she threw ice water on a doctor trying to treat the man.

The other patient left the hospital but was later readmitted. Although the wing was nearly empty, he was placed in the room next to the young woman's. This, South Bend attorney Rick Morgan said Monday, was despite the man having behaved inappropriately during readmission and even telling the staff, "I have problems with women."

The man twice lured the young woman into his room and, believing he was Jesus and she had to obey him, she submitted to sexual acts. The assaults were later confirmed by a physical exam after officials did not initially believe her.

The lawsuit was filed in 2009 as a negligence case. Hospital attorneys argued it should be treated as a medical malpractice case.

Judge Evan Roberts agreed the case could proceed as a simple civil lawsuit, but Indiana's appeals court reversed the order, citing the issue of the young woman's treatment as key. The state Supreme Court voted 3-2 against hearing the case. [Here is the appellate docket]

Medical malpractice lawsuits are notoriously difficult to win in Indiana, whose law requires a lengthy process involving the appointment of a three-person medical review panel. The findings of such a panel — composed of three other doctors in the same field — are not binding, but they carry a lot of weight with a jury.

The panel in this case had ruled in favor of the hospital.

Posted by Marcia Oddi on Wednesday, November 30, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Filings, people representing themselves on the rise"

Annie Goeller, managing editor of the Johnson County Daily Journal, reports on the recently released Indiana trial court statistics for 2015. Some quotes [ILB emphasis]:

The number of cases filed in local courts went up slightly last year, which officials said is fueled by more police on the streets in local communities.

New case filings in Johnson County increased slightly in 2015, compared to 2014, according to a report from the Indiana Supreme Court.

In the last few years, the number of case filings in local courts has dropped, especially after improvements in the economy, including fewer foreclosures and lower unemployment rates.

That provided some relief to local courts’ caseloads, along with the addition of a new court, Superior Court 4, last year.

But in recent years, filings have started to increase slightly. In 2015, local courts had 28,171 new case filings, just under 1 percent more than the year before, but still significantly down from 2010 when nearly 36,000 new cases were filed, according to the state statistics.

The majority of that increase did not come from new criminal case filings, and instead were from more people being ticketed for traffic violations and local rule violations, Johnson County Deputy Prosecutor Alex Hamner said. In fact, criminal case filings actually went down from 2014 to 2015.

One big reason behind that increase could be due to local communities who have hired more police officers in recent years, he said.

And from 2014 to 2015, the number of new cases filed for ordinance violations, such as certain traffic or parking violations, increased by more than 2,600, he said.

That increase could also be one reason for another spike in the number of people representing themselves in their cases, which hit 7,410 in 2015, up more than 25 percent from 2014.

Often, people choose to represent themselves in those cases, rather than paying for an attorney, he said.

Posted by Marcia Oddi on Wednesday, November 30, 2016
Posted to Indiana Courts

Ind. Decisions - "Indiana Supreme Court clarifies traffic stop rules"

Dan Carden of the NWI Times reports on the two Supreme Court decisions yesterday. The long story begins:

INDIANAPOLIS — The Indiana Supreme Court issued two rulings Tuesday clarifying when police can stop or enter a vehicle after receiving a third-party report of a motorist in danger.

Posted by Marcia Oddi on Wednesday, November 30, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on "7th Circuit can make civil rights history for gay and lesbian employees" [Updated]

Updating this ILB post from Nov. 29th, the en banc 7th Circuit oral argument in Hively v. Ivy Tech. is this morning. My best guess is it will begin at 10:30 EST, 9:30 Chicago time. The Court's daily calendar has not yet been updated for today, it states:

The calendar is posted on the court’s web page each morning by 9:00 a.m. [CST]
You will be able to listen to an audio of the oral argument here. It is numbered 15-1720. Expect some confusion because there may be as many as 11 different judges speaking [WOOD, BAUER, POSNER, FLAUM, EASTERBROOK, RIPPLE, KANNE, ROVNER, WILLIAMS, SYKES, HAMILTON], with no identification. (I'm not certain if you can listen in real time, or if the audio is posted later, if I remember correctly, it is the latter...)

Madeline Buckley of the Indianapolis Star has a long story today on the case, headed "LGBT worker's civil rights case could reach beyond state." A sample from the long story:

The full 7th U.S. Circuit Court of Appeals in Chicago will hear arguments in the case Wednesday in what could be a precedent-setting decision. Ivy Tech has consistently denied that Hively was not promoted because of her sexual orientation.

"Ivy Tech Community College values and embraces diversity," School spokesman Jeff Fanter said in a statement. "It is an equal opportunity employer that does not condone, and in fact explicitly prohibits, employment discrimination based upon a person’s sexual orientation."

If the court was to rule in favor of Hively — which would allow her to go forward with her lawsuit — the decision would implement workplace protections for gay and lesbian residents within the court's jurisdiction of Indiana, Illinois and Wisconsin. That would essentially render moot an ongoing battle in the Indiana General Assembly over legislation that would add a statewide anti-discrimination clause for LGBT Hoosiers.

But if the court rules against Hively, she could appeal her case to the U.S. Supreme Court, setting her case up to potentially have national impact.

The case is cheered by advocates who say it would offer essential protections for lesbian, gay, bisexual and transgender workers and close a gap left from the landmark U.S. Supreme Court decision, Obergefell v. Hodges, that legalized same-sex marriage, but fell short of implementing workplace protections based on sexual orientation and gender identity.

[Updated at 10:28] The great resource, Equality Case Files, has all the briefs here.

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

Tuesday, November 29, 2016

Ind. Decisions - More on: "Anderson attorney placed on indefinite suspension"

Updating this ILB post from May 27th, Ken de la Bastide of the Anderson Herald Bulletin reports:

Madison Circuit Court Judge Angela Sims has approved a summary judgment against embattled local attorney Stephen Schuyler foreclosing on his Adams Township property.

Sims on Nov. 21 granted the motion for summary judgment filed by First Merchants Bank foreclosing on the mortgage in the amount owed by Schuyler and his girlfriend, Kim Golden, entering a judgment of $210,452. She ordered Schuyler to pay $30,612 in legal fees. * * *

Schuyler is scheduled to go on trial in Madison Circuit Court Division 3 on March 9 before Judge Thomas Newman Jr. A final pretrial conference is set for Feb. 6.

Schuyler is facing 15 felony counts of theft, check deception and corrupt business influence for allegedly misappropriating funds from six estates totaling more than $700,000.

Madison County Prosecutor Rodney Cummings said Monday the summary judgment has no impact on the pending criminal cases. He said the trial will probably take place in March. * * *

Schuyler’s legal problems started in January 2015 when a check he wrote to East Lynn Christian Church in the amount of $78,387.13 bounced. The church was named as a beneficiary in the estate of Sara Wilding.

In 2015, Criminal Magistrate Steve Clase removed Schuyler from more than 130 cases in which he had a fiduciary interest in estates and guardianships. The cases were assigned to other attorneys.

This year the Indiana Attorney Disciplinary Commission recommended that Schuyler’s license to practice law be suspended indefinitely for non-cooperation in the investigation of complaints filed against him. The Indiana Supreme Court accepted the recommendation.

Posted by Marcia Oddi on Tuesday, November 29, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Supreme Court decides two today, re search & seizure

In Mary Osborne v. State of Indiana, an 8-page, 5-0 opinion, Justice Massa writes:

Mary Osborne filed this interlocutory appeal following the trial court’s denial of her motion to suppress, on the grounds that the traffic stop giving rise to the charges was not permissible under the Fourth Amendment to the United States Constitution or Article 1, Section 11 of the Indiana Constitution. Although we believe the officer’s actions in this case were prompted by a genuine desire to serve and protect, we hold that, under the circumstances, those actions constituted an improper intrusion upon Osborne’s constitutional privileges against unreasonable search and seizure. Accordingly, we reverse. * * *

a warrantless search or seizure is per se unreasonable, and the State bears the burden to show that one of the “well-delineated exceptions” to the warrant requirement applies. [cites omitted]

The United State Supreme Court has identified one such exception relevant to this matter: that the officer had “an objectively reasonable basis for believing that medical assistance was needed, or persons were in danger.” [cites omitted] * * *

Turning to the instant matter, Officer Arnold responded to a report that a woman was trapped under her car, which undoubtedly could give rise to a reasonable concern that emergency medical assistance was needed, prompting further investigation, as in both Bruce and Trotter. However, the actual facts he subsequently confronted did not objectively support that concern: Officer Arnold learned that Osborne had freed herself prior to his arrival at the gas station, Osborne operated her vehicle normally, and Officer Arnold witnessed no traffic infractions or criminal conduct.

In Eduardo Cruz-Salazar v. State of Indiana, a 4-page, 5-0 opinion, Justice Massa writes:
Eduardo Cruz-Salazar appeals his conviction for Class A misdemeanor possession of cocaine, claiming the warrantless search which led to the discovery of the drugs was improper under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. In this companion decision, issued today with Osborne v. State, No. 29S02- 1608-CR-433, -- N.E.3d -- (Ind. Nov. 29. 2016), we find Cruz-Salazar’s search permissible, and affirm. * * *

In Osborne v. State, No. 29S02-1608-CR-433, -- N.E.3d -- (Ind. Nov. 29. 2016), also issued today, we described in detail the relevant Fourth Amendment and Article 1, Section 11 concerns, and thus we proceed directly to their application here. Police received a report of a stationary vehicle that had been running for 30 minutes, in the early hours of a cold December morning. This alone is sufficiently unusual to merit further investigation, as it could be an indicator of distress. Police arrived on scene to find the situation as reported, and indeed worse: Cruz-Salazar was at the wheel of the vehicle, and was not responsive when Officer Ayler both shined his flashlight through the windows or when he tapped on the window. At this point, the officer had an objectively reasonable basis to open the door and check on Cruz-Salazar’s well-being. See Michigan v. Fisher, 558 U.S. 45, 49 (2009) (holding the Fourth Amendment permits warrantless search and seizure if police had “an objectively reasonable basis for believing that medical assistance was needed, or persons were in danger.”) Accordingly, we find the warrantless entry into Cruz-Salazar’s vehicle permissible under the Fourth Amendment to the Federal Constitution and Article 1, Section 11 of the Indiana Constitution.

Posted by Marcia Oddi on Tuesday, November 29, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (0):

NFP civil decisions today (2):

Jeffery Allen Bell v. Leslie Ann Bell (mem. dec.)

In The Matter of J.H., A Child Alleged To Be Delinquent v. State of Indiana (mem. dec.)

NFP criminal decisions today (2):

Jennifer M. Wright v. State of Indiana (mem. dec.)

Buford G. Lee v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, November 29, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Historic surgeon general's report on addiction"

Aprile Rickert of the News and Tribune reports in a lengthy story (here via the Ind. Econ. Digest):

SOUTHERN INDIANA — Local health leaders are hoping a first-of-its-kind report from the U.S. surgeon general on the growing problem of drug addiction is a groundbreaking moment in fighting substance abuse in Southern Indiana.

The 472-page report, "Facing Addiction in America: The Surgeon General's Report on Alcohol, Drugs and Health," details the scope of addiction in America — from physiological and psychological causes and effects on individuals, their families and communities, to prevention strategies and policy changes to properly address treatment.

It's the first time the surgeon general has issued a report on addiction, and the first of this size and scope since the Surgeon General's Report on Smoking and Health, released in 1964.

Perhaps most notable is Surgeon General Vivek Murthy's words defining addiction. Since it is largely stigmatized and often misunderstood, many do not get treatment they require to return to being healthy and whole members of the community.

“Addiction is not a character flaw,” Murthy states in the report. “It is a chronic illness that we must approach with the same skill and compassion that we approach heart disease, diabetes and cancer.

“Research reviewed in this report should eliminate many of the long-held, but incorrect stereotypes about substance misuse and substance abuse disorders, such as that alcohol and drug problems are the product of faulty character or willful rejection of social norms.”

These misconceptions have gone a long way to keep people from receiving treatment, either out of shame from the stigma or because the resources are not accessible.

Posted by Marcia Oddi on Tuesday, November 29, 2016
Posted to Indiana Government

Ind. Courts - "7th Circuit can make civil rights history for gay and lesbian employees"

From Alison Frankel's Reuters' "On the Case" column Monday - some quotes:

Under federal law as it exists right now in the United States, gay men and lesbians can marry their partners over the weekend and can be fired the following Monday for doing so, without any recourse under the Civil Rights Act.

But that may be about to change.

On Wednesday, the en banc 7th U.S. Circuit Court of Appeals will hear arguments in Hively v. Ivy Tech Community College, in which former Ivy Tech adjunct professor Kimberly Hively claims the college refused to allow her to interview for a full-time job and ultimately did not renew her contract because she is a lesbian. The case gives the 7th Circuit a historic opportunity to fix what three of its own judges have called “a jumble of inconsistent precedents” and a “confused hodge-podge of cases.” If the full appellate court sides with Hively and her lawyers from the Lambda Legal Defense and Education Fund, gays and lesbians will finally receive protection under federal law from workplace discrimination.

Click the link and read on, this is a lengthy, excellent analysis.

See a long list of earlier ILB entries on the case here.

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

Ind. Law - "'Planets are aligned' to get rid of handgun carry license"

Tony Cook reports in today's Indianapolis Star - some quotes from the long story:

Gun rights advocates see the upcoming legislative session as their best shot yet to get rid of an Indiana law that requires a license to carry handguns.

The controversial legislation failed to advance during the last session, but supporters think this time could be different after sweeping Republican victories on Election Day and with a new, gun-friendly lawmaker overseeing the committee that acts as a gatekeeper on such bills.

"I think the planets are aligned this year," said Rep. Jim Lucas, a Seymour Republican who plans to file the bill when lawmakers convene in January.

He and other advocates of so-called "constitutional carry" — including the powerful National Rifle Association — see licensing requirements and fees as unnecessary impediments to their constitutional right to keep and bear arms. They want Indiana to join at least 11 other states that allow people to carry concealed handguns on their person or in their vehicles without a permit.

"I want to decriminalize our constitutional right to bear arms," Lucas said. "Our right to self-defense shouldn’t be controversial."

Boosting his hopes is a new chairman of the Indiana House committee that handles firearms legislation: Rep. Ben Smaltz.

Smaltz, an Auburn Republican, was appointed chairman of the House Public Policy Committee last week to replace outgoing chairman Tom Dermody, who did not run for re-election. The public policy committee is often the first stop for legislation dealing with hot-button issues including guns, alcohol, gambling and abortion.

Smaltz has been a staunch advocate of gun rights. * * *

The state currently has more than 750,000 active handgun licenses. Nearly 4,900 applications were rejected last year, according to Indiana State Police.

Licenses, which have a one-time cost of $75, can be denied for various reasons including felony or domestic violence convictions, certain drug and alcohol convictions and being found mentally incompetent by a court.

The push in Indiana to get rid of handgun licensing requirements is part of a nationwide effort on the part of gun advocates. At least four states — West Virginia, Mississippi, Idaho and Missouri — have passed new laws within the past year to ditch their permitting requirements.

Another reason for optimism among supporters in Indiana is the election of Gov.-elect Eric Holcomb, whose campaign featured commercials of his wife, Janet, training women how to shoot handguns and pledging that her husband would defend gun rights.

Posted by Marcia Oddi on Tuesday, November 29, 2016
Posted to Indiana Law

Monday, November 28, 2016

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

In USA v. Darryl Worthen (SD Ind., Barker), a 6-page opinion, Judge Kanne writes:

Worthen entered into a plea agreement with the government under which he agreed to plead guilty to these two charges and further agreed to waive his appeal rights. In exchange, the government agreed to drop the other charges and promised to not seek the death penalty.  * * *

Irrespective of the appeal waiver, Worthen now appeals his conviction, arguing that Hobbs Act robbery—the predi‐ cate offense for Worthen’s § 924(j) conviction—is not a “crime of violence” as the statute defines that term. Thus, Worthen contends that his § 924(j) conviction is invalid.

Before we can address this argument, Worthen must con‐ vince us that he has not waived his right to an appeal. Gener‐ ally speaking, appeal waivers are enforceable and preclude appellate review. United States v. Sines, 303 F.3d 793, 798 (7th Cir. 2002). Even so, we have recognized a few narrow excep‐ tions to this rule—one of which is that a defendant may al‐ ways contest a sentence that exceeds the statutory maximum for the crime committed. * * *

To be clear, the crux of Worthen’s argument is that the validity of his appeal waiver depends on the validity of his conviction. That argument is entirely circular. Indeed, to determine whether Worthen’s crime‐of‐violence conviction is invalid, we would have to take the appeal in the first place. Then, only if we agree with Worthen and conclude that his conviction is in fact invalid would we find that Worthen’s sentence exceeds the statutory maximum, which in turn would mean that Worthen did not waive his appeal rights. So the rule would be that an appeal waiver is enforceable unless the appellant would succeed on the merits of his appeal. That cannot be the law. * * *

Here, Worthen “expressly waive[d] his right to appeal [his] conviction and sentence … on any and all grounds.” (R. 45 at 4.) His waiver precludes an appeal. We accordingly DISMISS Worthen’s appeal without considering the merits.  

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

Ind. Gov't. - "Industrial wind turbines will not be allowed in or near the Town of Hagerstown"

So reports Bob Hansen in this Nov. 23rd story in the New Castle Courier-Times. The story begins:

The Hagerstown Town Council plans to enact a zoning change that will effectively ban industrial-sized wind turbines in an area referred to as the two-mile fringe, council members told a room full of area residents Monday. The two-mile fringe is an area outside of town where town development and zoning standards apply.

About 15 people attended the meeting to ask the council for action against plans by an international utility company to put up wind turbines.

Even before the assembled group gave its information, council members presented a plan to keep wind turbines out of the area. The plan involves extending a flight path regulation covering the Hagerstown Airport to cover the entire two-mile fringe, said council member Brian Longbons. Most of the two-mile fringe is already in the flight path area, where structures cannot exceed 100 feet in height.

Industrial wind turbines are usually more than 150 feet tall.

Many of the same group of people had attended a town plan commission meeting Nov. 9 to encourage the town to act against a wind turbine proposal put forth by EDP Renewables. According to a map of the proposal, wind turbines are planned north and west of the town’s zoning area. Members of the group said they fear that if that current proposal is approved, it would be only the first step towards having hundreds of wind turbines surrounding the town.

Posted by Marcia Oddi on Monday, November 28, 2016
Posted to Indiana Government

Ind. Decisions - Tax Court issues one today

In The University of Phoenix, Inc. v. Indiana Department of Revenue, a 6-page decision, Judge Wentworth denies the Indiana Department of State Revenue’s motion for a Protective Order, concluding:

“Given that the scope of discovery is broad and highly dependent on the facts of each case, the Court must exercise discretion in determining what discovery is necessary and what is vexatious.” Popovich , 7 N.E.3d at 413 (citations omitted). The Court do es not find UoPX’s request to depose Mr. Alley [Michael Alley, the former Commissioner of IDOR] vexatious . Accordingly , the Department’s Motion is DENIED. Consistent with the requirements of Indiana Trial Rule 37(A)(4), the Court will schedule a hearing regarding the propriety of an award of expenses b y separate cover.

Posted by Marcia Oddi on Monday, November 28, 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):

In the Term. of the Parent-Child Relationship of: T.M., M.M., E.M., Jn.M., and Js.M. (Minor Children), T.M., Jr. (Father) v. Ind. Dept. of Child Services (mem. dec.)

In re: The Adoption of: K.A.M., J.A.M. v. P.E.U. (mem. dec.)

Elizabeth Marshall v. Sean Marshall II (mem. dec.)

NFP criminal decisions today (4):

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

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

Venus G. Graves v. State of Indiana (mem. dec.)

Brandon D. Godsey v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, November 28, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending Nov. 25, 2016

Here is the Clerk's transfer list for the week ending Friday, November 25, 2016. It is two pages (and 28 cases) long.

Two transfers were granted last week (thereby vacating the COA opinions):

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

Posted by Marcia Oddi on Monday, November 28, 2016
Posted to Indiana Transfer Lists

Ind. Gov't. - "Bureau of Indian Affairs blesses South Bend casino, tribal village"

Erin Blasko reported Nov. 24th in the South Bend Tribune in a long story that begins:

SOUTH BEND — The Bureau of Indian Affairs has approved plans by the Pokagon Band of Potawatomi Indians for a $400 million hotel and casino in South Bend.

A press conference on the decision featuring tribal Chairman John Warren, tribal council members, Mayor Pete Buttigieg and Common Council member Oliver Davis is set for 11 a.m. Tuesday at Four Winds Field.

According to a media alert, Warren and others will deliver “(r)emarks related to the decision by the Bureau of Indian Affairs to take into trust 166 acres of Pokagon Band land located between Prairie Avenue, U.S. 31 and Locust Road in the city of South Bend.”

See also this ILB post from May 14, 2015.

Posted by Marcia Oddi on Monday, November 28, 2016
Posted to Indiana Government

Environment - "U.S. Steel to pay $2.2 million fine, clean up Gary pollution"

Joseph S. Pete reported Nov. 23rd in the NWI Times:

U.S. Steel will pay a fine of $2.2 million and clean up pollution in Gary, Michigan and Illinois as part of an agreement with the U.S. Justice Department.

The Justice Department and the states of Indiana, Illinois and Michigan sued the Pittsburgh-based steelmaker in 2012 over alleged Clean Air Act violations. U.S. Steel reached an agreement Tuesday to settle the lawsuit that was filed in federal district court in the Northern District of Indiana.

As part of the consent decree, U.S. Steel agreed to remove contaminated transformers at Gary Works and repair a large opening in a metal shell around a blast furnace to cut down on emissions at the steel mill on Lake Michigan. Such construction projects typically result in jobs for local union tradespeople.

“I applaud the united, collaborative effort by all parties who worked to resolve this matter and to hold accountable those responsible for polluting the environment,” Indiana Attorney General Greg Zoeller said. “No one should be subjected to living and working in a polluted environment.”

Posted by Marcia Oddi on Monday, November 28, 2016
Posted to Indiana Government

Ind. Courts - Magnus-Stinson to be new SD Ind. Chief Judge

From a news release just issued:

INDIANAPOLIS, Indiana (November 28, 2016): On Wednesday, November 23, 2016, the United States District Court for the Southern District of Indiana came under the leadership of a new chief judge, the Honorable Jane E. Magnus-Stinson. She assumed this position upon the expiration of Judge Richard L. Young’s term as chief judge.

Chief Judge Magnus-Stinson received her commission as district judge for the Southern District of Indiana on June 9, 2010, filling a vacancy created by Judge Larry J. McKinney’s assumption of senior status on July 4, 2009. Before becoming a district judge, Chief Judge Magnus-Stinson served the Southern District of Indiana as a magistrate judge from 2007 until her elevation. Prior to that, from 1995-2007, she was a judge on the Marion County Superior Court. Chief Judge Magnus-Stinson is a graduate of Butler University and the Indiana University McKinney School of Law.

Chief Judge Magnus-Stinson currently serves on the Defender Services Committee of the Judicial Conference of the United States, the Seventh Circuit Criminal Pattern Jury Instructions Committee, the Seventh Circuit Advisory Committee on Rules, and the Seventh Circuit Committee on Supervised Release. She has served as Chair of the Facility/Court Security Committee for the Southern District of Indiana since 2010.

During Judge Young’s seven-year term as chief judge, the court welcomed two new district judges (Judge Magnus-Stinson and Judge Tanya Walton Pratt) and four new magistrate judges (Mark J. Dinsmore, Denise K. LaRue, Matthew P. Brookman, and Van T. Willis). During that same time, Judge Sarah Evans Barker assumed senior status, a vacancy that remains unfilled. Also during Judge Young’s time as chief judge, the court closed more than 24,500 civil and criminal cases, placing the Southern District of Indiana 6th in the nation by weighted caseload.

Judge Young provided the court with valuable leadership during his tenure. Under his direction, the court moved to a paperless filing system, except in miscellaneous cases; initiated a prisoner e-filing system that is now in use at eight different detention facilities; operated without interruption during a government shutdown and numerous continuing resolutions; instituted the ability for attorneys to file new cases electronically; and transitioned to a new financial management system. Additionally, for a significant portion of Judge Young’s term as chief judge, the Birch Bayh Federal Building and United States Courthouse was under renovation, necessitating courtroom sharing and multiple moves by the judges and court staff.

The position of chief judge is assigned based on length of service, and is given to the judge in regular active service who is senior in commission of those judges who are (1) 64 years of age or under; (2) have served for one year or more as a judge; and (3) have not previously served as chief judge. The chief judge serves for a term of seven years and handles administrative matters related to the operation of the clerk’s office and the courthouse that do not require the attention of all the judges. The chief judge carries a full caseload in addition to these administrative duties and does not receive any additional pay.

Posted by Marcia Oddi on Monday, November 28, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Coal's future remains cloudy"

That is the headline to a Terre Haute Trib-Star editorial from Nov. 22nd. A few quotes:

In rural areas of southwestern Indiana, including nearby Sullivan and Greene counties, it was not uncommon in the months before the recent presidential election to see signs that simply stated, “Trump Digs Coal.”
Such messages signified support for candidate Donald Trump, who promised during his campaign to revitalize the coal industry by peeling back environmental regulations and put miners back to work.

As is the case with campaign promises from any source, promises don’t always reflect reality. If coal miners who have seen good-paying jobs wither away in recent years are counting on a big resurgence of activity in the coal fields during Trump’s upcoming term, they may find themselves sorely disappointed.

Kery Murakami, CNHI’s Washington reporter, explained the situation in a story that appeared on the front page of Monday’s Tribune-Star [Here is the story in the EagleTribune]. He wrote that while tighter environmental regulations have squeezed the coal market and made the fossil fuel less competitive, other energy market forces also play a major role, and the friendlier policies of a Trump administration won’t necessarily turn coal into a boom industry.

Meanwhile, earlier this month (Nov. 13th) the WSJ had a long, worth reading, $$ story by Rebecca Smith headed "Cheap Gas Tests Trump’s Promise to Revive Coal: U.S. utilities already have retired hundreds of coal-burning power plants." A few quotes:
Donald Trump campaigned on a promise to resurrect the ailing U.S. coal industry and put miners back to work. Delivering on that vow could prove nearly impossible.

Electric utilities that buy more than 95% of the coal mined in America have already retired hundreds of their coal-burning power plants from Colorado to Connecticut—amounting to about a third of the total capacity—and have plans to mothball even more.

While in Appalachia earlier this year, Mr. Trump pledged to “bring the coal industry back, 100%” by rolling back environmental regulations. But coal’s biggest problem is that it is no longer the cheapest fossil fuel around. It is being displaced by natural gas.

American Electric Power Co. of Columbus, Ohio, one of the nation’s biggest utility companies, has sold or retired half its fleet of coal-burning power plants in recent years. No matter who occupies the White House, “it’s not coming back,” said Nick Akins, AEP’s chief executive. * * *

To understand what the coal industry is up against, consider one of the newest coal units in the U.S.: Duke Energy Corp.’s power plant in Mooresboro, N.C. Built in 2012, the plant already needs modernization it so it can compete amid rapidly changing market conditions. Duke is adding equipment so the plant can run on coal or gas, depending on which can produce electricity more cheaply at any given time.

The percentage of electricity Duke generates by burning coal has steadily dropped from 58% in 2005 to 35% in 2015, mirroring a nationwide trend. The company closed 40 coal plants in the last five years and expects its coal-fired power generation to keep dropping until it stabilizes at 23% in 2030.

Posted by Marcia Oddi on Monday, November 28, 2016
Posted to Environment | Indiana Government | Indiana economic development

Ind. Courts - "Gary native on Indiana Supreme Court soon could step down"

That is the headline to Dan Carden's story this weekend in the NWI Times. The story begins:

The sole African-American justice serving on the Indiana Supreme Court is likely to step down early next year.

The Times has learned that Justice Robert Rucker, a Gary native, has informally been advising lawyers and judges in the Region and across the state to be prepared to apply if they’ve ever considered joining Indiana’s five-member high court.

Rucker, who turns 70 on Jan. 19, has not officially announced any plans to resign the Supreme Court seat he’s held since 1999, and declined to comment for this story.

However, Chief Justice Loretta Rush recently acknowledged that she anticipates Rucker will choose to end his court service in 2017.

Posted by Marcia Oddi on Monday, November 28, 2016
Posted to Indiana Courts

Courts - "SCOTUS vacancy dominates talk at national lawyers convention"

Long, fascinating story this weekend by Robert Barnes of the Washington Post on the recent Federalist Society’s national lawyers convention. A few quotes:

“We could have been here in mourning, in sackcloths and ashes, wondering what might become of the republic,” Sen. Ted Cruz (R-Tex.) told a packed ballroom. Instead, the attendees found themselves with a “historic opportunity” and, as he noted, circulated through the Mayflower Hotel with “résumés in your pockets.”

“This gathering may well be the single largest collection of individuals who are likely to serve in the new administration,” continued Cruz, a Federalist Society favorite. “If you look down the aisle at your friends and neighbors and colleagues, I have great confidence that we are collectively looking at scores of federal judges,” as well as Justice Department lawyers and future officials of every federal agency.

But it was the opening on the Supreme Court that dominated the event. * * *

Cruz is not on the list of 21 people from which Trump has said — repeatedly — he will make his choice. “Only from that list I’m going to pick, only,” Trump said recently. “We’re not going outside that list.” * * *

Instead, the list is composed of federal judges and state supreme court justices from around the country. A solid number of them clerked for Scalia or another of the Supreme Court’s current conservatives, raising the possibility that a former clerk would for the first time sit with the justice for whom he or she once worked.

Who is on the shortlist? Who knows. But two names must be elevated, if for no other reason than Trump himself has mentioned them.

“We could have a Diane Sykes, or you could have a Bill Pryor, we have some fantastic people,” Trump said shortly after Scalia died, naming the kinds of judges a Republican president could nominate. * * *

Sykes is a judge on the U.S. Court of Appeals for the 7th Circuit and a former justice on the Wisconsin Supreme Court. She, too, is a Federalist Society favorite, chosen a couple of years ago to interview Thomas at the group’s gala dinner.

Sykes would bring something to the court missing since the departure of Justice Sandra Day O’Connor: She has run for elected office. And she has a solidly conservative voting record, with a requisite defense of gun rights.

One drawback is that she would be 59 at the time of her nomination, and conservatives generally like their nominees to be younger. On the other hand, Justice Ruth Bader Ginsburg was 60 when confirmed, and she has served 23 years and counting.

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

Catch-up: What did you miss over the Thanksgiving weekend from the ILB?

From Friday, November 25, 2016:

Posted by Marcia Oddi on Monday, November 28, 2016
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 11/28/16):

Thursday, December 1

Next week's oral arguments before the Supreme Court (week of 12/5/16):

Thursday, December 8

Webcasts of Supreme Court oral arguments are available here.




This week's oral arguments before the Court of Appeals (week of 11/28/16):

Wednesday, November 30

Next week's oral arguments before the Court of Appeals (week of 12/5/16):

Tuesday, December 6 Wednesday, December 7

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, November 28, 2016
Posted to Upcoming Oral Arguments

Friday, November 25, 2016

Courts - "Overtime Rule Is but the Latest Obama Initiative to End in Texas Court"

That is the headline to this Nov. 23rd NYT story by Noam Scheiber and Barry Meier. Some quotes [ILB emphasis]:

President-elect Donald J. Trump promised to undo many of the Obama administration’s most ambitious regulations. But even before he takes office, federal courts in Texas are doing some of the work for him.

A federal judge’s injunction this week halted a Labor Department rule that would have made millions more Americans eligible for overtime pay.

Over the last two years, Federal District Court judges in the state have chipped away at Mr. Obama’s legacy by striking down or suspending no fewer than five regulations, executive orders or actions, and guidelines, including an action that would have allowed illegal immigrants who are parents of United States citizens to remain in the country, and guidance that would have expanded restroom access for transgender students. * * *

The injunction in the overtime case, issued on Tuesday by a judge nominated by Mr. Obama, has many advocates and legal experts concerned.

It’s a troubling trend because it’s essentially delegating policy oversight to a set of handpicked judges in the South, who can pick and choose which regulations move forward and which do not,” said Matthew Wessler, a principal at the firm Gupta Wessler who has argued multiple cases involving workers before the Supreme Court. * * *

In an interview, the Nevada attorney general, Adam Paul Laxalt, whose state was the lead plaintiff in the case against the overtime rule, said that the coalition of states it led had elected to file in the Eastern District of Texas because the district had a reputation for handing down rulings quickly.

“That was what is known as a fast docket,” Mr. Laxalt said. “The decision was made based on a bunch of variables, but we thought we may be able to get the quickest answer.” Citing the Dec. 1 effective date for the new regulation, he said, “We were really fighting the clock.” * * *

Texas has a rich culture of antigovernment litigation. In 2013, Greg Abbott, now the state’s governor and then its attorney general, jokingly described a typical workday as, “I go into the office, I sue the federal government and I go home.” He bragged that he had sued the Obama administration 25 times in the previous four years.

While federal judges in Texas are officially appointed by the president, not state officials, Senate custom gives the state’s two United States senators considerable influence over the nominations.

“The judges that do manage to get nominated have to somehow pass through the gauntlet of Ted Cruz and John Cornyn,” said Richard Levy, the secretary-treasurer of the state A.F.L.-C.I.O. who served as its legal director for more than 20 years. “It has skewed the bench here in a way I don’t think is probably likely in other places.” * * *

Considered alongside the recent pattern of decisions by Texas judges, however, the ruling might have been foreseen.

Last month, Judge Marcia A. Crone of the Eastern District of Texas ruled against most of an Obama administration directive that required companies to disclose labor violations before they could receive a federal contract worth more than $500,000, a policy that had inflamed the business community.

Last week, Judge Sam R. Cummings of the Northern District of Texas, permanently blocked an administration rule that would have required employers to disclose relationships with consultants they hire to dissuade workers from unionizing.

In perhaps the biggest judicial setback to the president’s executive actions and regulations before the overtime decision, a split Supreme Court decision in June left in place a 2015 ruling by Judge Andrew S. Hanen of the Southern District of Texas that shut down the administration program intended to grant leniency to immigrants in the country illegally with children who are citizens or lawful permanent residents.

President Obama had pointed to the program, which was meant to protect millions of undocumented immigrants from deportation, as one of his major achievements.

Mr. Wessler, the Supreme Court lawyer, marveled at how unprecedented the recent developments have been.

“Using nationwide injunctions coupled with the kind of blatant forum shopping here is not something that we’ve really seen before in the modern age,” he said.

More: Per an @OrinKerr tweet, see this SSRN paper, whose abstract begins:
In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to non-parties. This Article offers a new analysis of the scope of injunctions to restrain the enforcement of a federal statute or regulation. It makes two contributions.

Posted by Marcia Oddi on Friday, November 25, 2016
Posted to Courts in general

Ind. Gov't. - More on "ACLU Challenges Bedford Sign Ordinance Limiting Political Expression"

Updating this ILB post from Nov. 1st, which included a link to the ACLU complaint, WBIW Bedford reported Nov. 24th:

The City of Bedford has entered into an agreement with an Indianapolis law firm to represent the city in its lawsuit over its new sign ordinance.

On October 31, The American Civil Liberties Union of Indiana challenged the ordinance. In the suit, the ACLU claims the ordinance, which was passed by Bedford City Council in September, violates the First and the 14th Amendments to the U.S. Constitution.

City attorney Greg Pittman said that after speaking with the city's insurance carrier, it was recommended the city retain Church Church Hittle and Antrim in Indianapolis. Attorney Liberty Roberts will handle the case at a rate of $275 per hour.

The ACLU filed the case on behalf of Bedford resident Samuel Shaw, who is seeking to stop the city from enforcing the sign ordinance. For years, Shaw has placed signs expressing his opinions in his yard on I Street. After passing the sign ordinance Shaw received a letter from the city's planning director informing him that he was in violation of the ordinance and that the "penalty for sign violations is $300 per day." He removed about 12 signs from his property.

The lawsuit against the City of Bedford claims the ordinance, passed by the Bedford City Council in September, violates the First and the Fourteenth Amendments to the U.S. Constitution. * * *

The city of Bedford prepared the following statement:

The City of Bedford Planning Commission began reviewing the city sign ordinance a few years ago. The sign ordinance was reviewed and revised by a special committee of the Planning Commission and subsequently passed by the Planning Commission. A public hearing was held prior to passage by the City Council on April 14, 2015.

On June 18, 2015 the United States Supreme Court ruled in the case of Reed vs. Town of Gilbert that sign ordinances implemented by many municipalities were null and void based on content restrictions. The citizens of Bedford were informed of this ruling and all sign enforcement ceased with the exception of setback rules and placement of signage on public right-of-way.

Subsequently, the special committee of the Planning Commission began working on a new sign ordinance to comply with the Supreme Court ruling. The result was Ordinance 15-2016 that was passed by the Bedford City Council in September 2016. The current sign ordinance specifies the size and number of signs allowed on residential and non-residential property but does not stipulate restrictions on content.

Elected officials of the City of Bedford took an oath to uphold the Constitution of the United States of America and the State of Indiana and are wholeheartedly committed to upholding their statutes. There is a lack of case studies in existence for local units of government to determine best practices for sign regulation implementation following the newest Supreme Court ruling. Accordingly, we look forward to addressing this matter and resolving it as quickly as possible.

Posted by Marcia Oddi on Friday, November 25, 2016
Posted to Indiana Courts | Indiana Government

Ind. Court - "Editorial: It's not looking good for transparency"

From an editorial today in the Fort Wayne News-Sentinel [ILB emphasis]:

There is not much hope for advocates of government transparency in the Pence case. Earlier this year, the Indiana Supreme Court, in a case involving emails between legislators and lobbyists, ruled that under the Indiana Constitution’s separation of powers clause the judicial system can’t second-guess what another branch of government wants to do. So the legislature can call its emails “work product” not subject to the state’s public records laws. And the soon-to-be ex-governor can probably keep his email private, too.

Too bad. The courts are abandoning their duty to act as a checks-and-balances monitor of other branches of government. The public’s right — and need — to know will suffer. Knowing the state high court has the attitude it does, look for plenty of other officials at all levels of government to start shielding their emails from prying public eyes.

Public officials always want to keep what they’re doing a secret. That’s just the nature of politics. Even when nothing nefarious is going on, it is much easier to get the job done without that pesky public always watching over their shoulders. And as we are seeing, both in Washington and Indianapolis, technological advances will keep enabling the politicians to get better and better at avoiding public scrutiny.

The No. 1 rule when it comes to politicians and the public interest should be: The harder officials try to shield their communications, the more likely it is that they contain something we really need to know and the harder we should work to see them. It’s just too bad the courts have decided to sit out the battle. We could use a friend.

Posted by Marcia Oddi on Friday, November 25, 2016
Posted to Indiana Courts | Indiana Government

Law - More on: Algorithms ... Is there a problem?

Supplementing this Oct. 18, 2016 ILB post, an article Nov. 17th in MIT Technology Review, titled "How to Hold Algorithms Accountable," begins:

Algorithms are now used throughout the public and private sectors, informing decisions on everything from education and employment to criminal justice. But despite the potential for efficiency gains, algorithms fed by big data can also amplify structural discrimination, produce errors that deny services to individuals, or even seduce an electorate into a false sense of security. Indeed, there is growing awareness that the public should be wary of the societal risks posed by over-reliance on these systems and work to hold themaccountable. * * *

Let’s consider one case where algorithmic accountability is sorely needed: the risk assessment scores that inform criminal-justice decisions in the U.S. legal system. These scores are calculated by asking a series of questions relating to things like the defendant’s age, criminal history, and other characteristics. The data are fed into an algorithm to calculate a score that can then be used in decisions about pretrial detention, probation, parole, or even sentencing. And these models are often trained using proprietary machine-learning algorithms and data about previous defendants.

Recent investigations show that risk assessment algorithms can be racially biased, generating scores that, when wrong, more often incorrectly classify black defendants as high risk. These results have generated considerable controversy. Given the literally life-altering nature of these algorithmic decisions, they should receive careful attention and be held accountable for negative consequences.

Posted by Marcia Oddi on Friday, November 25, 2016
Posted to General Law Related

Wednesday, November 23, 2016

Ind. Courts - Still more on "Special judge appointed to Hammond City Court "

This ILB post from June 7th reported that, per the NWI Times, "Three candidates vie to be new Hammond City Court Judge." The story reported that the three were Nathan Foster, Amy Jorgensen and Diana Gonzalez, and that:

[T]he Indiana Supreme Court on April 26 appointed [Gerald P. Kray] to serve as temporary judge until a new judge is appointed by Gov. Mike Pence.
The ILB has seen no news release from the Gov's office on an appointment, but the two Region papers reported Nov. 21st that the Gov. has now made an appointment to fill the judicial vacancy. From the NWI Times:
CROWN POINT — Gov. Mike Pence named former business owner Amy Jorgensen the new Hammond City Court judge on Monday, a decision criticized by the city's mayor.

Jorgensen is the former owner and operator of seven Sylvan Learning Centers in Northwest Indiana and Chicago, according to a resume she provided The Times of Northwest Indiana.

Jorgensen said Monday in an email she sold her remaining interest in the tutoring centers in December 2015, but she remains a consultant for the new owners.

In January, Jorgensen was appointed chairwoman of the St. John Republican Party, but she said Monday she resigned from that position.

Jorgensen obtained a law degree from the Valparaiso University School of Law in 1998, the resume states. * * *

Hammond Mayor Thomas McDermott Jr., a Democrat, criticized the governor Monday for choosing a nonresident of the city to serve as its judge. He also said Jorgensen lacked the law experience necessary to preside over the city's busy court.

“She will get very little respect from me as mayor,” McDermott said in an interview. “This is a carpetbagger coming in to run our City Court and hundreds of thousands of dollars.” * * *

Jorgensen's resume indicates she has had little, if any, professional law experience, but her law license remains active, state records indicate.

She did not respond directly to questions about her law experience, but said Pence reviewed her application and declared she would make an "excellent judge," which should satisfy the mayor.

Jorgensen admitted she was not a current resident of Hammond, but said it was not a requirement for a gubernatorial appointee. However, she said she executed a lease for a Hammond residence last Friday, and she was also seeking to purchase a home.

The Gary Post-Tribune story is headed: "City Judge appointment riles McDermott." The long story begins:
Judicial appointment Vice President-elect Gov. Mike Pence made Monday has Hammond Mayor Tom McDermott Jr. seeing red.

St. John Republican Party Chairman Amy Jorgensen was sworn in as Hammond City Court judge Monday morning, according to a release from Pence spokeswoman Kara Brooks.

Jorgensen, 46, replaces Judge Gerald Kray, who was appointed Hammond City Court Judge by the Indiana Supreme Court after Judge Jeffrey Harkin's death in April.

"Amy Jorgensen possesses the intellect and temperament to make an excellent judge," Pence said in the release. "I am confident that she will serve the community of Hammond with distinction, and I thank her for stepping forward in this capacity."

McDermott said Monday that Jorgensen's appointment was "news to him," as he found out through social media.

"It's such a joke," McDermott said. "Judge Kray didn't even get a call that this was happening."

McDermott said what concerns him most, however, is that Jorgensen has said previously that she has "never used her law degree" from Valparaiso University School of Law.

"She admits she's never practiced law, and she's going to be a judge? This is unprofessional cronyism, and I have no confidence in this appointment," McDermott said. "This lady ran Sylvan Learning Centers."

Posted by Marcia Oddi on Wednesday, November 23, 2016
Posted to Indiana Courts

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

For publication opinions today (3):

In In the Matter of the Commitment of M.E. v. Department of Veterans Affairs , a 15-page opinion, Judge Baker writes:

The Veterans Affairs (VA) Hospital filed a petition to involuntarily commit M.E. by way of forcible medication after M.E. was brought there by local police. The trial court issued an Order of Regular Commitment, committing M.E. to the hospital until discharged, and granted an order to medicate M.E. unless he did not substantially benefit from the medications. M.E. now appeals his involuntary commitment. Finding that M.E. did not receive appropriate notice, that his waiver was invalid, and that the VA did not carry its burden of proof with respect to the elements of dangerousness and grave disability, we reverse and remand with instructions to vacate the order of involuntary commitment. * * *

M.E. makes three arguments on appeal: (1) the VA failed to serve M.E. with the documents it filed with the trial court; (2) the Waiver of Right to Be Present at Commitment Hearing signed by M.E. was invalid; and (3) the involuntary civil commitment was not warranted because the VA failed to establish that M.E. exhibited a grave disability or dangerousness to self. * * *

[I. Service of Pleadings]

Fair notice requires that individuals who may be civilly committed and their counsel receive the petitions and documents supporting the requests for civil commitment. We find, therefore, that the VA’s failure to serve these documents on M.E. and his counsel violated Trial Rule 5’s requirement that each party must be served with every pleading, including and subsequent to the original complaint, and that service must be made upon an attorney of a represented party. * * *

[II. Waiver]

Next, M.E. argues that the “Waiver of Right to be Present at Commitment Hearing” that the VA secured from him was invalid. We agree, finding that any waiver presented to and signed by an individual who has been involuntarily detained, and is alleged by the VA to be mentally ill, cannot be valid.

In supporting its argument that M.E.’s waiver was valid, the VA relies on the fact that the waiver involved in this case was an express, written waiver, and that M.E.’s experience with commitment orders and the mental health unit of NIHCS over the course of fifteen years indicates that M.E. understood the waiver that he signed. This argument is unfathomable. * * *

[A]n individual cannot be considered so mentally ill that an emergency detention is ordered and a petition for regular commitment is filed but, simultaneously, competent enough that any waiver he may sign is validly obtained. Either an individual is competent, or he is not.

Accordingly, we hold that a waiver purporting to relinquish the rights of an involuntarily detained individual, or an individual at risk of being involuntarily committed, is not valid. * * *

[III. Sufficiency of the Evidence]

M.E. argues that there was no clear and convincing evidence of dangerousness to self or grave disability that warranted his involuntary civil commitment. * * *

A. Evidence of Dangerousness. An individual is “dangerous” when, as a result of mental illness, the individual presents a substantial risk that he will harm himself or others. * * *

Thus, the most specific evidence that Dr. Khan could provide about M.E.’s dangerousness merely amounted to unpleasant comments that M.E. made about white women. Such behavior does not constitute a substantial risk that M.E. will harm himself or others, nor does it support an involuntary commitment.

B. Evidence of Grave Disability. An individual is “gravely disabled” when, as a result of mental illness, the individual is in danger of coming to harm because he: 1) is unable to provide for his food, clothing, shelter, or other essential needs; or 2) has a substantial impairment or an obvious deterioration of his judgment, reasoning, or behavior that results in his inability to function independently. I.C. § 12-7-2-96. * * *

We agree with M.E. that there is no clear and convincing evidence to establish a grave disability. The government did not offer any evidence that M.E. is unable to provide for his food, clothing, shelter, or other essential needs, nor did it offer evidence that M.E. suffered from a substantial impairment or obvious deterioration that affected his judgment or made him unable to function independently. In fact, the physician who completed the Physician’s Statement referenced by the Petition for Regular Commitment did not even check the box to indicate that M.E. was suffering from grave disability. Moreover, the VA’s reliance on M.E.’s past behavior ignores the fact that the statutory language looks to the patient’s behavior at the time of the hearings, not to his history. M.E.’s aggression, paranoia, and confrontational attitude do not establish an inability to function independently under the law.

The judgment of the trial court is reversed and remanded with instructions to vacate the order of involuntary commitment.

In Kathy Salyer v. Washington Regular Baptist Church Cemetery v. Kristy Sams , a 10-page opinion, Judge Brown writes:
Kathy Salyer appeals from the May 13, 2016 order of the small claims court on her complaint requesting the return of a burial space she had purchased. We reverse and remand. * * *

Salyer maintains that, because the Cemetery wrongfully buried Johnson at her gravesite, it must relocate Johnson’s body so that the site can be restored to her. She notes that the legislature directed the course of action for a wrongful burial and cites to Ind. Code § 23-14-59-2. * * *

Giving effect to the language of both statutes, in the event a wrongful burial occurs and a cemetery fails to correct it as required by Ind. Code § 23-14-59-2, a court may order the cemetery to perform its duty under the statute but may not find the cemetery liable for damages. Based on Ind. Code § 23-14-59-1, the court in this case erred in finding the cemetery liable for damages.

In addition, an order that a cemetery perform its duty under Ind. Code § 23-14- 59-2 constitutes an order for specific performance or injunctive relief, and the small claims court’s order that Salyer receive “the adjacent burial site just south of her burial site,” Appellant’s Appendix at 6, also constitutes an order for injunctive relief. However, Salyer’s claim was filed and docketed on the small claims docket of the Ripley County Superior Court. The jurisdiction of a small claims court is limited to that granted by the Constitution or by statute. * * *

Moreover, the small claims court does not have jurisdiction to exercise equitable powers such as ordering specific performance or injunctive relief apart from the statute. * * *

Accordingly, the small claims court did not have jurisdiction to grant injunctive relief either in ordering that Salyer receive “the adjacent burial site just south of her burial site,” Appellant’s Appendix at 6, or to order that Johnson’s body be removed from Gravesite #15. * * *

Conclusion. For the foregoing reasons, we find the small claims court erred in finding the Cemetery liable for damages, and that it did not have jurisdiction to enter an order for specific performance or injunctive relief. We therefore reverse the court’s order and remand for consideration of transfer to the court’s plenary docket.

In Benjamin Sheetz v. Ronnie Sheetz, a 29-page, 2-1 opinion, Chief Judge Vaidik writes:
While Benjamin Sheetz (“Husband”) and Ronnie Sheetz (“Wife”) were married and Husband was in prison, Wife got pregnant by another man. Nevertheless, Husband agreed to raise the child as his own and did so for twelve years. He also told Wife not to contact the biological father, not to seek support from him, and not to institute paternity proceedings. Wife later filed for divorce, and at the final hearing, the parties entered into evidence a stipulation that although the child was born during the marriage, Husband is not the child’s biological father. The trial court nonetheless ordered Husband to pay support for the child, and Husband now appeals.

Under these circumstances where Husband told Wife when she was pregnant that he would raise the child as his own (and he did so for twelve years), Husband told Wife not to tell the biological father, not to seek support from him, and not to file a paternity action, and Wife relied on Husband’s representations in not establishing paternity in the biological father, we find that Husband is equitably estopped from rebutting the presumption that he is the child’s biological father. We therefore affirm the trial court. * * *

Baker, J., concurs.
Najam, J., dissents with separate opinion. [that begins at p. 14]

I respectfully dissent. The majority opinion that “Husband is equitably estopped” from claiming that G.B.S. is not a child of the marriage is contrary to law. See Slip op. at 9. The Dissolution of Marriage Act as well as precedent of the Indiana Supreme Court and this court have established that a child support order in a dissolution of marriage can be entered only for a child of both parties to the marriage. Indiana does not recognize equitable estoppel, adoption by estoppel, or in loco parentis as grounds for a child support order. That is, there is no equitable paternity in Indiana. The dissolution court erred when it ordered Husband to pay child support for a child who is neither his biological child nor Court of Appeals of Indiana | Opinion 01A05-1601-DR-80 | November 23, 2016 Page 15 of 29 his adopted child and who is, therefore, not a child of both parties to the marriage. * * *

This court’s equity jurisdiction is not a license to disregard the unmistakable and unambiguous intent of our legislature and the plain meaning of a “child or children of both parties to the marriage.” In effect, the majority has redefined a defined term and usurped a policy question that belongs to the legislature. See In re Snow, 862 N.E.2d at 668; Russell, 682 N.E.2d at 516-17. Indeed, the legislature has already rejected equitable paternity. See I.C. § 31-14-7-2. The question presented has also been considered and decided by both our supreme court and this court in numerous cases, both under the Dissolution of Marriage Act and under prior law going back at least seven decades. See, e.g., Pilgrim, 75 N.E.2d at 162. Neither our legislature nor our courts have recognized adoption by estoppel or paternity by in loco parentis. The majority opinion is contrary to Indiana Supreme Court precedent in Hight, Russell, and In re Snow and is a radical departure from our well-settled family law.

Paternity and a duty to pay child support are indivisible. In Indiana, a man’s paternity is a condition precedent to a child support order against him. The majority opinion is contrary to law. The child in this case is not a child of both parties to the marriage. Husband and other Indiana husbands similarly situated have a reliance interest in the certainty afforded by the plain meaning of the statute and well-settled precedent. If the majority opinion stands, it will not only reverse decades of precedent but will also introduce uncertainty into child support determinations. In order to avoid the risk of an “equitable” child support order, a husband who knows or suspects that his wife’s child is not his child but is the child of another man will now be encouraged, if not compelled, to disavow paternity as soon as possible and rupture the marriage rather than to keep the marriage and family intact.

NFP civil decisions today (4):

In the Matter of: C.K., a Child Alleged to be in Need of Services, F.R. (Mother) and B.K. (Father) v. The Indiana Department of Child Services (mem. dec.)

Rosina Keller v. Gretchen Cheesman, as Administrator of the City of Muncie Unsafe Building Hearing Authority, and the City of Muncie (mem. dec.)

In Re the Visitation of: K.W. and A.W. (Minors), E.B. v. J.W. (mem. dec.)

In re the Adoption of S.M.M., T.M.S. v. K.L.M. (mem. dec.)

NFP criminal decisions today (5):

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

Wilma Beatrice Allen v. State of Indiana (mem. dec.)

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

Michael W.L. Deweese v. State of Indiana (mem. dec.)

Ventura S. Sanchez v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, November 23, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - AG-Elect Curtis Hill apoints another prosecutor to be Deputy AG

Updating this ILB post from Nov. 17th, the Lawrenceberg JournalPress reports:

Dearborn and Ohio County Prosecutor Aaron Negangard announced during the Dearborn County Council meeting Tuesday night, Nov. 22, that he will be leaving his position as county prosecutor to serve as chief deputy for state attorney general-elect Curtis Hill starting Monday, Jan. 9.

Republican Hill was elected as the new attorney general during the Tuesday, Nov. 8, general election over Democrat Lorenzo Arredondo. Hill served as prosecutor for Elkhart County.

Negangard was originally appointed county prosecutor in 2006, when then-prosecutor Sally Blankenship was appointed by past Gov. Mitch Daniels to serve as judge for the newly-created Dearborn County Superior Court No. 2. He was elected to the postion later that same year. He served as a deputy prosecutor and chief deputy prosecutor since 1997. He was last elected in 2014.

Posted by Marcia Oddi on Wednesday, November 23, 2016
Posted to Indiana Government

Tuesday, November 22, 2016

Ind. Decisions - U.S. Steel agrees to resolve Clean Air Act litigation initiated by the United States and Indiana, Illinois and Michigan

A news release issued this afernoon begins:

WASHINGTON – The United States, together with the states of Indiana and Illinois and the Michigan Department of Environmental Quality, announced today that U. S. Steel Corporation (U. S. Steel) has agreed to resolve Clean Air Act litigation initiated by the United States and the three states in August 2012, by undertaking measures to reduce pollution at its three Midwest iron and steel manufacturing plants in Gary, Indiana; Ecorse, Michigan; and Granite City, Illinois. As part of the agreement, U. S. Steel will perform seven supplemental environmental projects totaling $1.9 million, to protect human health and the environment in the communities affected by U. S. Steel’s pollution, including a project to remove lighting fixtures containing toxic chemicals in public schools. In addition, U. S. Steel will expend $800,000 for an environmentally beneficial project to remove contaminated transformers at its Gary and Ecorse facilities and pay a $2.2 million civil penalty. The agreement is memorialized in a consent decree lodged today in federal district court in the Northern District of Indiana. * * *

Today’s settlement, lodged with the U.S. District Court for the Northern District of Indiana, is subject to a 30-day public comment period following notification in the Federal Register and final approval by the court. To view the consent decree or to submit a comment, visit the department’s website: www.justice.gov/enrd/Consent_Decrees.html.

Posted by Marcia Oddi on Tuesday, November 22, 2016
Posted to Environment | Ind Fed D.Ct. Decisions

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

For publication opinions today (2):

In C.V. v. C.R. , a 9-page opinion, Judge Pyle writes:

C.V. appeals the trial court’s issuance of a protective order against him in favor of C.R. He argues that the trial court erred because C.R. did not produce sufficient evidence that he stalked her and, therefore, that a protective order was warranted. We agree and reverse the trial court’s decision. We remand with instructions to vacate the protective order against C.V. * * *

Based on our decision in Maurer, we conclude that C.R. did not produce sufficient evidence that C.V.’s contact with her constituted stalking. Although her testimony regarding the number of times C.V. contacted her was not vague, it is clear that his contact with her was relatively insignificant. He left notes on her car on four occasions, and an interval of seven months passed between two of the notes. C.V.’s contact can hardly be considered frequent. More significantly, though, as in Maurer, C.R. did not produce any evidence that she asked C.V. to stop sending her the notes or that he persisted after she asked him to stop. To the contrary, Officer Trama testified that C.V. did not send any notes once he contacted him and asked him to stop. * * *

[B]ecause there was no evidence that the contents of the notes were threatening, we cannot conclude that there was sufficient evidence that a reasonable person would have felt terrorized, frightened, intimidated, or threatened by C.V.’s acts under these circumstances. Accordingly, we conclude that C.V. has presented a prima facie case that C.R. did not produce sufficient evidence that C.V. stalked her. As a result, we reverse the trial court and remand with instructions for the trial court to vacate the protective order.

In Wendell Brown a/k/a Menes Ankh El v. State of Indiana , a 30-page opinion, Judge Riley writes:

Appellant-Defendant, Wendell Brown, now known as Menes Ankh-El1 (AnkhEl), appeals his conviction for burglary, a Class C felony, Ind. Code § 35-43-2-1 (2011); forgery, a Class C felony, I.C. § 35-43-5-2(b) (2011); and driving while suspended, a Class A misdemeanor, I.C. § 9-24-19-2 (2012). [2] We affirm. ISSUES [3] Ankh-El raises five issues on appeal, which we restate as follows: (1) Whether the trial court had subject matter jurisdiction over this case; (2) Whether the trial court denied Ankh-El the right to counsel in violation of the Sixth Amendment to the United States Constitution; (3) Whether the State presented sufficient evidence to support Ankh-El’s conviction for burglary, forgery, and driving while suspended beyond a reasonable doubt; (4) Whether the charging Information was defective; and (5) Whether the trial court committed fundamental error by exhibiting prejudice. * * *

When Forcum exited his vehicle, one of the men on the balcony—Ankh-El— inquired into Forcum’s presence. Forcum explained that he is a real estate broker, and, in response, Ankh-El identified himself as the new owner of the Property. Knowing this could not be the case given his exclusive listing rights, Forcum returned to his vehicle and drove away from the Property while calling the Indianapolis Metropolitan Police Department (IMPD).

Forcum waited at the end of the long driveway until IMPD officers arrived. Forcum apprised the officers of his concern that there was an individual squatting on the Property, and he provided the officers with his credentials and a copy of the listing agreement which identified him as the agent responsible for selling the Property. Thereafter, the officers proceeded down the driveway and observed Ankh-El and another male standing outside. The officers identified themselves and explained the nature of their visit. Ankh-El informed the officers that he had recently purchased the property for $250,000, and he acted perplexed as to why there would be any indication that the Property was still listed for sale. When asked for proof of his ownership, Ankh-El stated that he had such documentation at another location, so he locked the doors to the house and drove away from the Property while the officers and Forcum waited for him to return. During Ankh-El’s absence, one of the officers contacted the Marion County Assessor’s Office, which reported that the current owner of record for the Property was Bank of New York Mellon. A short while later, Ankh-El drove up to the Property on a black Yamaha motorcycle. Ankh-El provided the officers with an identification card with his name and photograph, which identified him as a “Moorish National” and listed his birthplace as Marion County, Indiana. (State’s Exh. 13). Ankh-El admitted that he had created the identification card himself and explained some of the history of the Moorish people; specifically, he “talked about [how] the laws of [the] land [do not] apply to Moorish Nationals.” (Tr. p. 216).

In addition, Ankh-El tendered a document to the officers entitled “FREEHOLD IN DEED.” (State’s Exh. 1). According to Ankh-El, this deed, which he had also created himself, evidenced his ownership rights in the Property. * * *

Based on the foregoing, we conclude that the trial court had subject matter jurisdiction over this case; the trial court did not violate Ankh-El’s Sixth Amendment right to counsel; the State presented sufficient evidence to support Ankh-El’s conviction for burglary, forgery, and driving while suspended beyond a reasonable doubt; the charging Information was not defective; and the trial court did not commit fundamental error

NFP civil decisions today (2):

In re the Paternity of E.E., J.E. v. T.C. (mem. dec.)

Michelle Powell v. Timothy Powell (mem. dec.)

NFP criminal decisions today (10):

M.P. v. State of Indiana (mem. dec.)

State of Indiana v. Terrence L. Hawkins (mem. dec.)

State of Indiana v. Kenneth R. Trisler (mem. dec.)

William W. Bunner v. State of Indiana (mem. dec.)

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

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

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

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

Brent D. Mullis v. State of Indiana (mem. dec.)

Tonya R. Crump v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, November 22, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Pence, who touts openness, tries to stop document release"

That is the headline to Brian Slodysko's AP coverage yesterday of the oral argument in William Groth v. Mike Pence (for background, start with this LB post from yesterday). Some quotes:

Lawyers for Indiana Governor and Republican Vice President-elect Mike Pence argued in court Monday that the state's judicial branch has no authority to require him to comply with Indiana's public records law.

The civil case before Indiana's Court of Appeals was brought by Indianapolis attorney William Groth, who sued in 2015 after the Pence administration denied a request for un-redacted records, including a document related to Republican efforts to stop President Barack Obama's immigration executive order. * * *

On Monday, Pence attorney Joseph Chapelle told the judges that the separation of powers established under the state's constitution should prevent the court system from forcing Pence and his immediate staff to comply with the open records law if they are sued.

"Inquiry into the personal papers of the governor would (interfere) with the affairs with of the governor's office," Chapelle said. "He's different than other state agencies."

The appellate court took up the case after a lower court ruled that Pence did not have to turn over emails, billing invoices or a document authored by the chief-of-staff to now-Texas Gov. Greg Abbott. The documents, sought by Groth, outlined legal arguments for the GOP's successful challenge to Obama's immigration executive order. * * *

The state's highest court ruled in April that that it could not order the Legislature to release lawmakers' email correspondence because it would violate the state constitution's separation of powers between the legislative and judicial branches of government. * * *

A ruling in the case against Pence is not expected immediately. But government watchdog groups say that if the courts ultimately agree with Pence's interpretation, the Indiana governor's office would police itself when it comes to the release of public records, seriously weakening the law by limiting the ability to sue for records.

Fatima Hussein of the Indianapolis Star writes:
Regarding the nonjusticiability doctrine, the judges strongly challenged Pence's legal team on how previous case law would apply.

Pence's team cited the Indiana Supreme Court ruling in Citizens Action Coalition, et al. v. Indiana House Rep., which determined the legislature's redactions were nonjusticiable under the Indiana Constitution’s separation of powers clause. Groth was also the attorney representing the plaintiffs in that case.

Judge Najam said that decision applied only to the legislature and not the executive branch of state government.

Drawing a distinction between the legislative role of government and the executive branch, Najam asked, "Isn't that the whole purpose of APRA, to see who is soliciting our governor?"

Added Vaidik: "What is the point of APRA then?"

Posted by Marcia Oddi on Tuesday, November 22, 2016
Posted to Indiana Courts

Courts - "Federal court in Wisconsin strikes down GOP-drawn maps"

Jason Stein and Patrick Marley reported late yesterday in the Milwaukee Journal-Sentinel [ILB emphasis]:

Two weeks after a stunning election defeat, Wisconsin Democrats won an equally surprising legal victory Monday as a federal court struck down legislative maps drawn by Republicans in 2011.

The judges ruled 2-1 that the maps were unconstitutional because they were "intended to burden the representational rights of Democratic voters ... by impeding their ability to translate their votes into legislative seats."

Depending on the outcome of an appeal to the U.S. Supreme Court, the case could have national implications because it includes a new method of determining whether legislative maps are drawn in a way that discriminates against voters of a particular party.

"We find that the discriminatory effect is not explained by the political geography of Wisconsin nor is it justified by a legitimate state interest. Consequently, Act 43 constitutes an unconstitutional political gerrymander," the judges wrote in their 159-page decision.

The ruling focused on the state's 99 Assembly seats, but redrawing those districts also would alter the state Senate map. That’s because each Senate district consists of three Assembly districts. The ruling does not affect congressional maps, which also were redrawn to benefit Republicans in 2011.

The judges did not determine how to fix the maps, writing that would be decided in the coming months after the state and the Democrats who brought the lawsuit offer proposals. It's possible the judges would establish a new set of maps or require lawmakers to redraw them. * * *

Finding the maps unconstitutional were Kenneth Ripple, a senior judge with the Chicago-based 7th Circuit Court of Appeals, and U.S. District Judge Barbara Crabb of Wisconsin's Western District.

U.S. District Judge William Griesbach of the state's Eastern District dissented.

Ripple was appointed by Republican President Ronald Reagan, Crabb by Democratic President Jimmy Carter and Griesbach by Republican President George W. Bush.

Redistricting challenges in federal court are unusual in that they are initially heard by a panel of three judges instead of a single judge. Appeals go directly to the U.S. Supreme Court, without making a stop at an appeals court.

Here, via the J-S, is a copy of the 159-page opinion.

Robert Barnes had this story yesterday in the Washington Post. Some quotes:

The three-judge panel in Wisconsin ruled 2 to 1 that such a violation occurred when the Republican assembly and Gov. Scott Walker (R) went to work drawing the state’s legislative districts in 2011. Judges in the majority said the Republicans drew lines to make it impossible for Democrats to receive their share of power.

The evidence presented in a four-day trial established that “one of the purposes of Act 43 was to secure Republican control of the Assembly under any likely future electoral scenario for the remainder of the decade, in other words to entrench the Republican Party in power,” wrote Judge Kenneth Ripple, who was nominated to the U.S. Court of Appeals for the 7th Circuit by President Ronald Reagan.

He was joined by U.S. District Judge Barbara Crabb, who was nominated by President Jimmy Carter. District Judge William Griesbach, chosen by President George W. Bush, dissented.

Such rulings on state redistricting plans go directly to the Supreme Court for review, without the usual stop at an appeals court. The Supreme Court must either affirm the judgment or schedule it for full briefing and decision.

Posted by Marcia Oddi on Tuesday, November 22, 2016
Posted to Courts in general

Monday, November 21, 2016

Ind. Court - 7th Circuit Judge Wood: Lower Word Limits Unnecessary

From a sample of Bloomberg BNA’s The United States Law Week, dated Nov. 17th, this interesting report by Melissa Heelan Stanzione that begins:

Nov. 16 — The new, reduced federal appellate brief word limit, effective Dec. 1, has split the circuits, perhaps because it “is a solution in search of a problem,” Chief Judge Diane P. Wood of the U.S. Court of Appeals for the Seventh Circuit told Bloomberg BNA.

Seven circuit courts of appeals have decided to adopt the new rule, four have rejected the rule, and two others haven’t yet said whether they will adopt the rule.

Amended Federal Rule of Appellate Procedure 32(a)(7)(B) mandates that an appellate brief contains no more than 13,000 words, reduced from 14,000.

The “vast majority” of appellate briefs don’t present a problem because they are well below the word limit, Wood said.

This is why Wood spoke against the proposed decrease in March 2016 at the at the Judicial Conference of the United States, and why the Seventh Circuit opted out of adopting the amended FRAP 32.

Wood conducted an informal survey of the briefs filed in the Seventh Circuit in the past couple of years and concluded that about 85 percent were at or below 12,500 words.

“I think lawyers in the country are careful writers and they are trying to do their job as well as they can,” Wood said.

Lawyers “self-regulate,” meaning that they choose not to use “every last word that is authorized,” Wood said. This is why the Seventh Circuit is opting out of the new word limit, she said.

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

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

Updating this ILB post from July 29, 2016, Will Higgins of the Indianapolis Star reported on Nov. 18th under the headline "Lilly retiree wins Lotto millions, quietly" - the story begins:

For the second time in four months, an overnight millionaire Hoosier Lottery winner has chosen to remain anonymous. Well, mostly anonymous.

On Wednesday, the winner of $6.5 million in the Hoosier Lotto was identified in a lottery news release as "Indy grandfather" who "retired from Eli Lilly after 38 years."

In July, the lottery held a full-on news conference to announce that a "Hamilton County family" had won a $536 million Mega Millions jackpot. But the family not only didn't attend the event, they accepted the prize money through a limited liability corporation to avoid public detection.

"We have some players come in and want to tell the world," said Jerry Grider, who handles public relations, including "winner awareness," for the lottery. "We have some who want to remain anonymous." He said he could not say if lottery winners were increasingly opting for the down low because lottery officials don't keep such statistics.

Posted by Marcia Oddi on Monday, November 21, 2016
Posted to Indiana Government

Ind. Courts - Rough transcript of William Groth v. Mike Pence oral argument

Oral argument was heard earlier this afternoon in William Groth v. Mike Pence.

You will be able to watch the archived video here, later today.

For background on this case, begin with this ILB post from May 20, 2016, quoting a story from the FWJG. The filings in this case are available using the docket.

The ILB has created a rough transcript of the oral argument - access it here.

Posted by Marcia Oddi on Monday, November 21, 2016
Posted to Indiana Courts

Ind. Law - "Marion Attorney Charged With Drug Possession"

Tyler Juranovich reports in the Grant Co. Chronicle-Tribune in a story that begins:

A Marion attorney is facing a drug possession charge stemming from a summertime traffic stop.

Beau J. White, Marion, is facing charges of possession of cocaine and operating a motor vehicle with a schedule I or II controlled substance in person’s body after he was pulled over by the Indiana State Police officer for a traffic incident in July. * * *

Though the incident occurred in July, a warrant for White’s arrest wasn’t issued until Nov. 9, nearly four months later. White was arrested on Nov. 10 and shortly released from jail after paying a $605 bond.

Grant County Prosecutor James Luttrell said the delay in arrest was due to his office waiting on results from the toxicology reports. As of Nov. 17, the results of the toxicology test still haven’t been released.

“It’s not unusual for the toxicology to take this long,” Luttrell said. “We decided we weren’t going to wait longer.”

On Monday Superior Court 3 Judge Warren Haas removed himself as the judge in the case, giving both the plaintiff and defendant seven days to agree on a special judge.

White has worked as a public defender in the past. The Indiana Supreme Court temporarily suspended White’s license for a month in 2012 after the court found him to be guilty of failing to help a client, failing to act promptly, failing to keep the client informed about the status of the case and failing to refund an unearned fee when terminated.

Posted by Marcia Oddi on Monday, November 21, 2016
Posted to Indiana Law

Ind. Courts - Gov. Pence today appointed S. Matthew Cook as the new Noblesville City Court Judge

From the news release:

Cook currently practices law with his father at their firm, Cook & Cook Attorneys at Law, in Noblesville. He is a lifelong resident of Noblesville and has previously served as a board member of the Noblesville Chamber of Commerce and the Noblesville Schools Education Foundation. Cook earned his undergraduate degree from Indiana University in Bloomington and his law degree from Indiana University Maurer School of Law, where he was named to the Order of Barristers.

Posted by Marcia Oddi on Monday, November 21, 2016
Posted to Indiana Courts

Ind. Courts - "Floyd County judges sue county for staff pay raises"

Elizabeth DePompei of the News & Tribune reported this weekend in a lengthy story:

FLOYD COUNTY — Floyd County judges have sued the county in hopes of securing 28 percent increases for the majority of county court reporters.

Floyd County Superior Court No. 1 Judge Susan Orth spoke on behalf of the county's judges at a council meeting in August and requested raises for 18 court employees. The request included bumping salaries up to $42,746 from $30,600 for 14 employees, and from $34,407 for four employees. The judges asked that the new salaries be retroactively dated July 1, 2016.

After at least an hour of discussion, council voted 4-2 (with one abstention) to move a total of $103,513.50 from the rainy day fund to the general fund, with the intention that the money would be appropriated to 2016 court staff line items at the following council meeting. Judges were asked to return to council the following month so that the appropriations could be advertised as required by law. But at that next meeting, on Sept. 13, council members voted 3-3 against the pay raises. * * *

On Monday, judges Orth, Terrence Cody, James Hancock, Maria Granger and magistrate Julie Flanigan each filed a mandate against the county council. The mandate, all filed in Floyd County Circuit Court, states that the council's denial of pay increases was "arbitrary and unreasonable, with no objective policy based decision making explained."

"I think it's very poor form for the judges, when they get denied, to use their judicial power to intimidate council members to give a raise that's really unreasonable," Oakley said. "I don't know anybody else that's asking for a 28 percent raise." * * *

In the mandate, the judges point out that Floyd County was recently ranked 26th out of Indiana's 92 counties in need for more judicial resources, a rank based on number of judicial officers, court staff and types of case loads. The judges added that the current pay rate for their court staff is "substantially less then that of comparable wages paid in adjacent counties." According to public record, the salary for the highest paid Clark County court reporter in 2015 came in at over $43,000. Clark County ranked number one in need for judicial resources, according to the same weighted caseload measure study.

"The court staffs are woefully underpaid, approximately 40 percent below comparable pay in this area for like jobs," said Michael Maschmeyer, the attorney representing the judges. "It's time for the Floyd County council to enter the 21st century and approve competitive, appropriate wages for these employees."

Posted by Marcia Oddi on Monday, November 21, 2016
Posted to Indiana Courts

Ind. Gov't. - "Editorial: High court decision in Notre Dame case a stunning blow to transparency" and some thoughts

That is the heading to an editorial this weekend in the South Bend Tribune. Some quotes:

The Indiana Supreme Court’s ruling on Wednesday that the University of Notre Dame’s campus police department is not a “public agency” under Indiana law deals a strong blow to transparency.

The decision frees Notre Dame and other private colleges with police forces from any obligation to provide details on campus police reports and investigations. City, county and other professional forces are required to do so under the state’s Access to Public Records Act. * * *

The Tribune had filed briefs in support of ESPN. Indiana Public Access Counselor Luke Britt had issued two advisory opinions finding the incident reports and logs kept by the campus security police department are public records. Indiana Attorney General Greg Zoeller had also supported ESPN, arguing that Notre Dame’s Security Police Department operates under the authority of state law. “The notion that a police department exercising these core state powers can be shielded from public scrutiny by dint of its affiliation with a private university is antithetical to the important policy interests underlying the Access to Public Records Act,” Zoeller wrote.

In a surprising twist in the case, the Indiana General Assembly, perhaps inadvertently, changed the state’s APRA definition of a “public agency” to include a private university police department. The change, which involves two bills related to police agencies, has been in effect since July 1. Since then, the public records law has applied to professional police departments at private universities including Notre Dame, according to some legal experts.

We have little faith, however, that legislators will let this change stand once the 2017 session begins. That’s a shame, because news organizations such as ESPN, The Tribune and HSPA aren’t asking for anything extraordinary in seeking more information from private institutions. It’s information already accessible from the state’s public universities. Police departments that operate under the same laws using the same powers granted by the state — including carrying guns and making arrests —shouldn’t be treated differently.

ILB: In regard to the highlighted language above, here are the two opinions from the Indiana Public Access Counselor, from Oct. 31, 2014 and Jan. 5, 2015, regarding records of the Notre Dame police force, issued in response to requests from ESPN. They conclude, respectively:Interestingly, these two more recent PAC opinions were not cited by the Supreme Court in its ESPN v. Notre Dame opinion last week [footnote on p. 7], where in a footnote on "legislative acquiescence" the Court listed three earlier PAC opinions with the opposite conclusion.

See also this ILB post from Nov. 18, which, inter alia, points out that the Supreme Court's opinion did not acknowledge that the definition of "public agency" was amended in 2016.

Here is a long list of ILB entries on the ESPN case.

Posted by Marcia Oddi on Monday, November 21, 2016
Posted to Indiana Government

Ind. Gov't. - "New General Assembly session convenes Tuesday"

Dan Carden reports in the NWI Times:

INDIANAPOLIS — Newly elected and returning members of the Indiana General Assembly, along with their families and friends, will gather Tuesday at the Statehouse for the ceremonial opening of the 2017 legislative session.

The centerpiece of the Organization Day meeting of the 100-member House and 50-member Senate is the formal swearing-in of lawmakers who won their seats in the elections held two weeks ago.

The Legislature will adjourn Tuesday afternoon and not return to the Statehouse until the first week of January.

In the meantime, representatives and senators will be working with the nonpartisan Legislative Services Agency to craft their proposals for new laws that will be debated, amended and possibly enacted during the four-month regular session that runs until April 29.

Posted by Marcia Oddi on Monday, November 21, 2016
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending November 18, 2016

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

Posted by Marcia Oddi on Monday, November 21, 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 11/21/16):

Tuesday, November 22

Next week's oral arguments before the Supreme Court (week of 12/1/16):

Webcasts of Supreme Court oral arguments are available here.




This week's oral arguments before the Court of Appeals (week of 11/21/16):

Monday, November 21

Next week's oral arguments before the Court of Appeals (week of 11/28/16):

Wednesday, November 30 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, November 21, 2016
Posted to Upcoming Oral Arguments

Saturday, November 19, 2016

Courts - More on: Korematsu and Minoru Yasui, before and after the Paris terrorist attacks of November 2015

Supplementing this ILB post from Nov. 24, 2015, see Harvard Prof. Noah Feldman's Nov. 18th op-ed in the NY Times, headed "Why Korematsu Is Not a Precedent." It begins:

The Supreme Court’s infamous 1942 Japanese internment decision, Korematsu v. United States, has never been overturned. But does that mean, as some of Donald J. Trump’s associates have recently implied, that it is still good law, a precedent that could be cited in support of a national registry for Muslim immigrants or other morally repugnant classification schemes?

Posted by Marcia Oddi on Saturday, November 19, 2016
Posted to Courts in general

Friday, November 18, 2016

Ind. Courts - Results of the District 2 Judicial Nominating Commission Election

Updating this ILB post from this morning, here are the results:

James H. Young has won the election for the District II attorney seat on the Judicial Nominating Commission with a total of 971 votes. Julia Blackwell Gelinas was second with 817 votes. Steven L. Tuchman was third with 288 votes.
Here are the certified results.

Posted by Marcia Oddi on Friday, November 18, 2016
Posted to Indiana Courts

Ind. Gov't. - More on "Muncie officials won't disclose attorney fees for lawsuit, FBI probe"

Updating this ILB post from Nov. 10th, Keith Roysdon of the Muncie Star-Press has another long story today. Some quotes:

MUNCIE, Ind. — Since the city of Muncie hired an Indianapolis law firm to represent local officials in a federal court lawsuit, claims paid to the firm have totaled more than $160,000, with $122,000 of that being paid just this week.

Mayor Dennis Tyler has refused since October to release the amount of fees paid to the Ice Miller law firm. But with the approval of the $122,007 payment to the firm in Wednesday's city board of works meeting, the amount paid is becoming more clear.

An Ice Miller representative contacted The Star Press on Thursday and said the law firm and the city would release totals paid to Ice Miller on Monday.

Ice Miller will not, however, release the names of attorneys who worked on the city's behalf — even though the names of two attorneys who represent the city in the federal court lawsuit filed by local contracting firm Shroyer Brothers are part of the U.S. District Court record — or their billable hours or hourly rates, which could top $600 an hour based on a contract between the city and Ice Miller this spring.

"We will never do that," Ice Miller spokesman Kip Tew said about releasing the details about attorneys and billable hours. He said such information would compromise attorney-client privilege, although The Star Press, in a pair of public records requests filed with the city, has not sought confidential information, but only amounts that are normally public record as defined by the office of the Indiana Public Access Counselor. * * *

Additional pressure was placed on the city this week after Muncie City Council member Dan Ridenour asked, following articles and columns appearing in The Star Press, for information about the legal fees. Ridenour said Friday he had not yet received any information about the claims but Tyler's administration "recommended we set up a face-to-face meeting" that would likely include the mayor and city attorneys.

During Monday's meeting, City Controller Audrey Jones told Ridenour the release of fees might be complicated by the city's insurance paying part of the fees to Ice Miller and Tew said Thursday that the agreement with the city's insurance company meant the $122,007 approved this week would be less. But that full amount was approved by the board of works on Wednesday and a check for the full amount was to be mailed Friday. The involvement of the city's insurance carrier also presumably means that insurance premiums paid by the city would add to the expense.

City council member Linda Gregory also pointed out this week that the city already contracts with a Muncie law firm, Quirk, Rivers and Hunter, to act as city attorneys, and questioned why the mayor needed advice from Ice Miller.

Posted by Marcia Oddi on Friday, November 18, 2016
Posted to Indiana Government

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

For publication opinions today (2):

In Jane E. Wilson, M.D., and IU Medical Group v. Tyler Lawless b/n/f Mindy R. Lawless , a 22-page opinion, Judge Brown writes:

Jane E. Wilson, M.D., and the IU Medical Group (“IU,” and together with Wilson, the “Appellants”) appeal the trial court’s judgment in favor of Tyler Lawless on a complaint for damages filed by Tyler’s mother Mindy Lawless as Tyler’s next friend. The Appellants raise two issues which we consolidate and restate as whether the trial court’s judgment is clearly erroneous. We affirm. * * *

The Appellants argue that the court’s Judgment should be reversed because of Mindy’s failure to seek follow up medical treatment for Tyler between the time he was seen by Dr. Wilson and January 22, 2009, when he was seen by Dr. Kosten. They contend that this constituted contributory negligence which must be imputed to Tyler, and that it was an intervening, superseding cause. We address each of the Appellants’ arguments separately. * * *

We decline the Appellants’ invitation to create an exception to the general rule that a parent’s alleged contributory negligence may not be imputed to a child’s medical malpractice claim. * * *

We need not examine the foreseeability of Mindy’s actions because, as asserted by Tyler, we find that the evidence presented at trial did not reveal that the delay in seeking follow up medical attention was an intervening cause of Tyler’s injury, i.e., the loss of his kidney. * * *

[W]e conclude that Mindy’s failure to immediately bring Tyler to see a doctor after he developed flank pain, instead waiting for a few weeks to do so, did not constitute an intervening cause of Tyler’s injury.

In Charles Dunson v. State of Indiana , a 13-page opinion, Judge Barnes writes:
Charles Dunson challenges his conviction for Level 5 felony carrying a handgun without a license. We affirm.

Dunson raises one issue, which we restate as whether the trial court properly admitted into evidence a handgun seized during an investigatory stop. * * *

The collective information known to the law enforcement organization was sufficient to provide reasonable suspicion that Dunson had been involved in criminal activity. The trial court did not abuse its discretion by admitting the evidence gathered as a result of the investigatory stop. We affirm.

NFP civil decisions today (3):

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

William Thatcher and Angela Thatcher v. City of Marion (mem. dec.)

David John Macintosh, Jr. v. Pamela Jo Macintosh (mem. dec.)

NFP criminal decisions today (2):

Timothy J. Hughes v. State of Indiana (mem. dec.)

Jeffrey Murto v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, November 18, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Waiting for results on the election of the 2nd District attorney member of the Judicial Nominating Commission

Updating this comprehensive ILB post from Oct. 25th, voting ended at 4 PM today and announcement of the results should follow shortly. Again, the candidates:

Posted by Marcia Oddi on Friday, November 18, 2016
Posted to Indiana Courts

Ind. Decisions - Re the ESPN private university police departments opinion

Margaret Fosmoe of the South Bend Tribune had an important story late yesterday headed: "Could there be more to Notre Dame police records issue? Legislators inadvertently make campus police subject to public records law." The ILB has several observations to add to the excellent SBT reporting.

First, take a look at this ILB post from March 25, 2016, which deals with Gov. Pence's veto of HEA 1022, the bill which had been intended to assure that private university police department records were not subject to the Indiana access to public records law. From a South Bend Tribune story at the time, quoting Pence's reasons for vetoing the bill:

"Limiting access to police records in a situation where private university police departments perform a government function is a disservice to the public and an unnecessary barrier to transparency," the [veto] statement said.

Pence had hinted at his decision last week, when he said his "strong bias for the public's right to know" would weigh heavily in his decision on whether to veto the bill.

But another bill from 2016, HEA 1019, which did become law (PL 58-2016), now defines a "public agency" at renumbered IC 5-14-3-2(q)(11) to include:
(11) A private university police department. The term does not include the governing board of a private university or any other department, division, board, entity, or office of a private university.
If you look this up in the Indiana Code, your will find two versions of IC 5-14-3-2. "Version a" has the new reference to "A private university police department" as described above. But a second version, "version b", also passed in 2016, is "as amended by P.L.198-2016, SEC.12."

Interesting, the "version b" amendment to IC 5-14-3-2 is part of a 449-page BMV bill, HEA 198. The only change is to IC 5-14-3-2(n)(7), regarding "license branch" [find it on p. 10].

When two or more amendments to a section of law in different bills passed during a session cannot be reconciled, it is the accepted practice of the LSA to publish them side by side in the Indiana Code, as done here. Such conflicts can be resolved only by the General Assembly, usually in a technical correction bill during the next session. Where the resolution would require substantive change, as appears to be the case here, the issue would need to be resolved by the regular legislative process.

Second, it is not sufficient in a court opinion to simply refer to a section of the Indiana Code as, for example, IC 5-14-3-2, because the content may change with time. The Supreme Court's ESPN decision avoids that problem by using this identification the first time the law at issue is cited:

Indiana’s Access to Public Records Act, Indiana Code chapter 5-14-3 (Supp. 2014)
That reference would incorporate all changes to IC 5-14-3 through the 2014 session. Another approach to specifying the version at issue would be "IC 5-14-3, as last amended by ...".

Often, for clarity, a court will, in a footnote, acknowledge any subsequent changes to the provision at issue, and state that they are not relevant to the decision at hand. That was not done in the ESPN case.

Posted by Marcia Oddi on Friday, November 18, 2016
Posted to Ind. Sup.Ct. Decisions

Thursday, November 17, 2016

Ind. Law - Dean William F. Harvey has died at 84

Dean Andrew R. Klein, Indiana University Robert H. McKinney School of Law, sent out the news to his colleagues this afternoon:

I write with very sad news. Bill Harvey, our Dean Emeritus and Carl M. Gray Emeritus Professor of Law, passed away this afternoon.

Dean Harvey joined our faculty in 1968 and served as dean from 1973 to 1979. Following his deanship, he returned to full-time teaching, retiring in 1996. Dean Harvey was widely recognized as leader in our legal community and a devoted mentor to his students. I know that he had great love for our law school, which he served for so many years.

I will pass along information about services and memorials when it becomes available, and will express condolences on behalf of the law school community to Dean Harvey’s wife, Gerry.

Gov. Pence has sent out a statement that begins:
“Professor Bill Harvey was a personal mentor of mine and an intellectual giant who, throughout his distinguished career, garnered the respect and admiration of his peers, colleagues and students. His awards and recognitions were numerous, and his body of work will serve as a guide for those studying the law for generations to come.

“His affinity for the law inspired a generation of Hoosiers, myself included. Indeed, Indiana’s loss with the passing of this extraordinary man is my personal loss. I will always remember Professor Harvey as a champion of the Constitution, a mentor, a veteran and a man of faith."

Biography here

Posted by Marcia Oddi on Thursday, November 17, 2016
Posted to Indiana Law

Ind. Law - ABA censures Valpo Law School

John Scheibel reports in the NWI Times:

VALPARAISO — The American Bar Association has censured the Valparaiso University Law School over its admission practices and has required the school to take steps to correct the problems.

The censure states the VU law school did not comply with ABA standards that require law schools maintain sound admission policies and practices and admit only applicants who appear capable of satisfactorily completing its program.

The ABA is requiring the law school to develop a written plan to bring the school into compliance regarding its admissions policies and supply it with admissions data and methodology and include information that was used in addition to grade point average and LSAT scores and how it was used to determine whether to admit a student. * * *

Andrea Lyon, dean of the VU Law School, said the censure is based on data collected in 2013 by the ABA, which examined the previous seven years.

“VU was accepting students we shouldn’t have been accepting,” she said.

Lyon, who started at VU in 2013, said the school is not losing accreditation and has already put in place tougher standards for incoming law students, including higher indications, like LSAT scores, writing ability and other factors.

She pointed to the growing competition between law schools for the better candidates as reason for the problems.

In addition to raising the standards for incoming students, the school downsized in the spring to remain competitive, she said.

The 36 full-time faculty were offered buyouts in February. Lyon said 12 accepted the buyouts, two retired and seven additional jobs were eliminated.

School officials said the school was facing a sharp decline in student applications and enrollment. The buyouts were intended to more properly align the size of the staff to the number of students enrolled.

Posted by Marcia Oddi on Thursday, November 17, 2016
Posted to Indiana Law

Ind. Courts - 250 residents plan lawsuits against East Chicago officials over lead contamination

Lauren Cross reported this week in the NWI Times:

EAST CHICAGO — About 250 current and former West Calumet residents put state, local and federal officials on notice they intend to file a lawsuit alleging the government knew about the highly lead- and arsenic- contaminated soil but did nothing to prevent future exposure.

The 251 individual tort claims — filed by attorneys Walter Alvarez and Eric Pavlack — put on notice the city of East Chicago, Mayor Anthony Copeland, the city’s department of public and environmental health, the Indiana Department of Environmental Management, the Indiana Department of Health, the state of Indiana, Gov. Mike Pence and Carrie Gosch Elementary School. Anyone wishing to sue a government entity first must file a notice of intent to sue.

The 251 residents represented by Alvarez's law firm include 187 children, according to the firm's news release.

The pending lawsuits — filed Oct. 27 — claim city and state officials knew about the pollution at the construction of the 346-unit West Calumet Housing Complex, built in 1972. * * *

The mayor notified residents in a letter last month they should relocate.

The recent filing is not the first time legal action has been taken against local, state and federal officials for East Chicago contamination.

Other suits target the companies that once operated there, while another lawsuit — filed in September — alleges the city’s forced relocation from West Calumet and plans to demolish the complex violate residents’ civil rights.

Barry Rooth, a Merrilville-based attorney, was the first to file a tort claim notice — back in August — on behalf of families.

For background, see this ILB post from August 31.

Posted by Marcia Oddi on Thursday, November 17, 2016
Posted to Indiana Courts

Ind. Gov't. - AG-elect Curtis Hill talks transition, possible replacement

Ben Quiggle of The Elkhart Truth reports in a long story:

Elkhart County residents are about to see something that doesn't happen often.

A new prosecutor will take office at the beginning of the year, only the fourth such transition since the 1950s. Current prosecutor Curtis Hill was elected Indiana's next attorney general on Nov. 8 in what he calls a "bittersweet" move from the community he has embraced all of his life. * * *

Hill, who has served the county as prosecutor since 2003, transformed a once part-time office into a full-time operation that he said "sets the standard statewide." He said he expects a very smooth transition at the Attorney General's Office in Indianapolis, an office Hill said currently employs over 400 people. * * *

Hill said that he would support current Chief Deputy Prosecutor Vicki Becker as his replacement for the remainder of his term, which runs through 2018. That decision will be in the hands of Elkhart County Republican Precinct Committeemen.

They are set to meet and vote on who should replace Hill on Dec. 2. So far, no other individuals have stepped forward seeking the prosecutor's post.

If Becker was slated to replace Hill she would be the first female prosecutor in Elkhart County history. Becker has a "tenacious spirit" that will help her excel in the prosecutor's role, according to Hill.

Posted by Marcia Oddi on Thursday, November 17, 2016
Posted to Indiana Government

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

For publication opinions today (3):

In Sperro LLC d/b/a Sperro Towing and Recovery, Fenner & Associates LLC, Brian Fenner, and AMI Asset Management, Inc. and Indiana Bureau of Motor Vehicles v. Ford Motor Credit Company LLC , a 27-page opinion, Judge Crone writes:

Sperro LLC d/b/a Sperro Towing and Recovery (“Sperro”) is in the business of transporting and storing collateral. Sperro towed and stored certain vehicles that had been financed by Ford Motor Credit Company LLC (“FMCC”). Sperro sought to assert possessory mechanic’s liens on the vehicles pursuant to Indiana Code Section 9-22-6-2 and sold the vehicles. FMCC filed a complaint against Sperro, Fenner & Associates LLC, and Brian Fenner (collectively “Appellants”), and AMI Asset Management, Inc. (“AMI”), 1 for civil conversion, replevin, tortious interference with a contractual relationship, and conspiracy to commit fraud. FMCC also filed a petition for a preliminary injunction. Following a hearing, the trial court issued a preliminary injunction granting FMCC prejudgment possession of specific vehicles in Sperro’s and AMI’s possession, ordering Appellants to turn over to FMCC any known or not yet identified FMCC-financed vehicles that may be in Appellants’ possession, and enjoining Appellants from taking or maintaining possession of any vehicle on which FMCC is the lienholder.

Appellants now bring this interlocutory appeal of the trial court’s entry of preliminary injunction. Appellants challenge the trial court’s conclusions that they did not comply with IC 9-22-6-2 and that they intentionally induced the vehicles’ purchasers to breach their retail installment contracts with FMCC or proceeded with reckless disregard of their contractual relationship. We conclude that the trial court’s conclusions are not clearly erroneous, and therefore we affirm.

In Kyle Pavan v. State of Indiana, a 9-page opinion, Judge Altice writes:
Kyle Pavan appeals from the denial of his petition for post-conviction relief (PCR). On appeal, he asserts that the post-conviction court erred in rejecting his claim of ineffective assistance of trial counsel. * * *

Essentially, Pavan asks us to transform a tolling provision located within the statute of limitations into an additional element the State must prove to secure a conviction for incest—that the victim or, as in this case, other willing participant, is under thirty-one years old. To accept Pavan’s request would be to embrace an absurd and illogical interpretation of both the statute of limitations and the incest statute. See In re J.S., 48 N.E.3d 356, 359-60 (Ind. Ct. App. 2015) (explaining that “[w]e presume that the General Assembly intended that the language used in [a] statute be applied logically and not to bring about an unjust or absurd result” (quoting Alvey v. State, 10 N.E.3d 1031, 1033 (Ind. Ct. App. 2014), aff’d of reh’g, 15 N.E.3d 72), trans. denied.) If the legislature had wished to place such limitations on the reach of the incest statute, it would have done so explicitly and in the statute defining the offense, not impliedly and by way of the statute of limitations.

In sum, Pavan’s statute-of-limitations argument is without merit, and trial counsel cannot be deemed ineffective for failing to pursue a meritless defense. Accordingly, the post-conviction court properly denied Pavan’s PCR petition.

In Gabriel G. Williams v. State of Indiana , a 10-page opinion, Sr. Judge Sharpnack writes:
After a bifurcated jury trial, the trial court entered judgment of conviction against Gabriel G. Williams on one count of Level 5 felony criminal recklessness, and one count of Level 5 felony carrying a handgun without a license.

On appeal, Williams challenges the sufficiency of the evidence supporting his conviction for criminal recklessness. We affirm.

The sole issue presented in this appeal is whether the evidence is sufficient to support Williams’s conviction for Level 5 felony criminal recklessness. * * *

Here, the bullet entered the siding of one house, passed through the corner exiting that house, ricocheted, and lodged in the siding of the second story of another house, such that it had to be removed from the siding. All of this occurred in the very early hours of the morning in a residential area. To reverse based upon the degree to which the bullet entered the building would be to reweigh the evidence, a task that is inappropriate upon appellate review.

NFP civil decisions today (3):

In Re: The Marriage of Robin R. Phillips v. Thomas R. Lloyd (mem. dec.)

Aaron and Stephanie Muir v. Matthew and Tara McWilliams (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of M.K., Minor Child, and K.K., Mother, K.K. v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (7):

Johnnie Nettles v. State of Indiana (mem. dec.)

Jimmy Lee Bush v. State of Indiana (mem. dec.)

Tory D. Ward v. State of Indiana (mem. dec.)

Sean Clover v. State of Indiana (mem. dec.)

Kenneth W. Kee v. State of Indiana (mem. dec.)

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

Jesse Larry Dean Clem v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, November 17, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Does conservatives' case against RFRA fix belong in court?" Judge rules "yes" [Updated]

Updating this ILB post from Nov. 3rd, Stephanie Wang of the Indianapolis Star is reporting this morning:

Hamilton Superior Judge Steven R. Nation allowed conservatives' lawsuit challenging cities' nondiscrimination ordinances to proceed in court. His order, issued Wednesday, denies the cities' request to dismiss the lawsuit.
ILB Note: Current, trial court documents such as Judge Nation's order yesterday are not available via the Indiana Courts website. As reported in this Nov. 4th ILB post, the Supreme Court is seeking public comment on whether such trial court documents should be made available online, as appellate court documents currently are. Submit your comments through Dec. 1, 2016.

Note additionally that these trial court orders are indeed public documents, even though not readily available online, and will remain available to the public at the courthouse, and nothing prevents, for example, the ILB, from posting any of these documents, so long as they are not confidential. The ILB will endeavor to obtain and post a copy of Judge Nation's order.

[Updated at 1:18 PM]
- The ILB has obtained a copy of Judge Nation's 6-page, Nov. 16th order. Access it here. Notice that in addition to dismissing the Defendant Cities' motions to dismiss, the Court requires:

Plaintiffs shall file a Second Amended Complaint within twenty (20) days of the date of this Order by adding the State of Indiana and/or the appropriate State Officials as a party to this cause.
The ILB discussed at length the failure of the lawsuit to include the State of Indiana as a party in this August 18th post.

Posted by Marcia Oddi on Thursday, November 17, 2016
Posted to Indiana Courts

Ind. Gov't. - "The court is giving up its ability to check another branch of government, and that should worry people”

That is a quote from a Terre Haute Trib-Star editorial, here as reprinted in the Washington Indiana Times-Herald, about the case that will be argued next next Monday before the Court of Appeals, William Groth v. Mike Pence:

TERRE HAUTE -- Pence now trying to shield his email from public scrutiny

Indiana government needs all of the transparency possible right now. Its one-party rule, cemented by the Nov. 8 election, complicates checks and balances on abuses of power.

As a result, an upcoming decision by the Indiana Court of Appeals holds particular importance.

The case involves the administration of Gov. Mike Pence, also now the vice president-elect, concealing the contents of an email sent to Pence by a political ally, according to the Indianapolis Star. Of course, there is deep irony of Pence working to shield email from public scrutiny after he and presidential running mate Donald Trump relentlessly hammered Democratic opponent Hillary Clinton for hiding and deleting emails during her years as U.S. secretary of state. Hypocrisy was a cornerstone tactic of nearly all campaigns for national offices in 2016.

This situation, though, could affect open government practices in Indiana long after any flavor-of-the-month election argument subsides.

President Obama in 2014 issued an executive order as a partial remedy to longstanding immigration problems. He offered temporary legal status to nearly four million undocumented immigrants in the country, deferring deportation of parents of children born in the United States and of children who entered the country before age 16.

As with most actions taken or endorsed by the president, Pence and fellow Republican governors immediately objected and worked to fight Obama’s executive order. That reaction and challenge is fine and part of the nation’s important mix of opposing parties and voices of dissent. The governors’ revolt relied on a lawsuit instigated by Texas Gov. Greg Abbott. Pence joined the lawsuit with an OK from Indiana Attorney General Greg Zoeller, and hired Indianapolis law firm Barnes & Thornburg to represent Indiana on the case.

Later in 2014, an Indy attorney, William Groth, sought information on Pence’s choice to join the lawsuit and hire an attorney, and the cost to taxpayers.

Groth told the Star that the governor’s action “was a waste of taxpayer dollars, and the people have the right to know how much of their money was spent.”

In response, Pence supplied the documents Groth questioned, but with numerous redacted passages. Also, an attached document to an email from Abbott’s chief of staff to Pence and others around the country, was withheld. A Pence spokesman explained the email was shielded under “attorney-client privilege.”

In April, the Marion County Superior Court said the redacted elements could not be second-guessed by the court. Groth appealed that ruling, saying the law was misapplied by the lower court, the Star said. On Monday, Nov. 21, the Appeals Court will conduct oral arguments on the situation.

Beyond the administration’s withholding of this particular information, the greater concern is that an Appeals Court decision favoring the governor’s office could weaken the Access to Public Records Act in Indiana.

It could also remove a judicial branch check and balance on the executive branch. As an Indiana University legal expert told the Star, “The court is giving up its ability to check another branch of government, and that should worry people.”

As governor and vice president-elect, Pence should walk the campaign talk and release the email in question and let open government prevail.

Posted by Marcia Oddi on Thursday, November 17, 2016
Posted to Indiana Government

Ind. Decisions - More on: Supreme Court decides the Notre Dame police force is not subject to the public records act

Updating this ILB post on yesterday's Supreme Court decision in ESPN v. Notre Dame Police Dept., here are several news reports:

Posted by Marcia Oddi on Thursday, November 17, 2016
Posted to Ind. Sup.Ct. Decisions | Indiana Government

Wednesday, November 16, 2016

Ind. Courts - More on "Park Tudor could avoid prosecution in Kyle Cox sexting case"

Updating this ILB post from earlier today, the IBJ posted a story yesterday that contained a link to the 30-page Feb. 4, 2016 criminal complaint filed by federal investigators. Some quotes from the IBJ story:

In an interview with IBJ, [U.S. Attorney Josh Minkler] added: "After Kyle Cox was arrested, Park Tudor certainly turned around and took a 180-degree different approach and was completely cooperative." Minkler said another factor prosecutors considered when opting for a deferred prosecution agreement was that the only Park Tudor administrator implicated is dead.

Minkler added: "I want to stress to you or anybody that Park Tudor was not given special treatment because it is an exclusive, private school." He said the steps the school has taken to protect students from future incidents of misconduct could serve as a template for other schools.

In a statement issued Tuesday afternoon, Park Tudor emphasized that no one beyond Miller was implicated in the federal investigation or a separate internal inquiry led by Barnes & Thornburg partner Larry Mackey. "Nevertheless," the school said, "we recognize that the school made mistakes in relation to the Kyle Cox matter, and we regret those mistakes."

Tim Horty, a spokesman for the U.S. Attorney's Office, said the federal investigation continues.

Michael Blickman, an Ice Miller partner serving as outside counsel for the school when the Cox investigation began, was not immediately available for comment Tuesday.

Minkler would not say whether Blickman was under investigation. But he said Miller and the outside counsel did not follow the law after the father of the girl on Dec. 14 showed them sexually explicit images contained on a laptop, then allowed them to keep it overnight to review the materials.

During that time, Blickman took the laptop to his law office and copied the materials onto a thumb drive. The laptop was returned to the father the next day.

"Clearly, when you take over possession of that, the only proper thing to do is turn that over to law enforcement," Minkler said, noting that investigators ultimately had to get a search warrant to obtain the laptop.

"That is not the way it should happen," Minkler said.

In its statement, Park Tudor said: "Park Tudor's response, through the actions of Matthew Miller and the school's then legal counsel, was inappropriate and not what we expect from our school. Nor is it what we will tolerate going forward."

Posted by Marcia Oddi on Wednesday, November 16, 2016
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today, finding the Notre Dame police force is not subject to the public records act

In ESPN, Inc. and Paula Lavigne v. University of Notre Dame Police Department, a 13-page, 5-0 opinion, Justice Massa writes:

An ESPN reporter requested information from the Notre Dame Security Police Department regarding 275 student-athletes. The Department declined, claiming that Notre Dame is a private university and its police force is not a “law enforcement agency” subject to Indiana’s Access to Public Records Act. The trial court agreed, and dismissed ESPN’s suit. We too find that a private university police department is not a “public agency” for the purposes of APRA, and affirm the trial court. * * *

ESPN appealed, arguing that the Department fits three statutory definitions of a “public agency”: (1) it is a “law enforcement agency” under subsection 2(n)(6); (2) it exercises the executive powers of the state under subsection 2(n)(1); and (3) it exercises delegated “traditional” governmental power under subsection (2)(n)(2)(C). Our Court of Appeals reversed and remanded, holding that the Department is a “law enforcement agency” under subsection (2)(n)(6), and finding that issue dispositive, declined to reach the remaining arguments. ESPN, Inc. v. Univ. of Notre Dame Sec. Police Dep’t, 50 N.E.3d 385, 393 (Ind. Ct. App. 2016). The panel reasoned that the Department “fits within the definition because it was acting as a governmental entity by exercising a governmental function.” * * *

We granted the Department’s petition to transfer, thereby vacating the Court of Appeals opinion. ESPN, Inc. v. Univ. of Notre Dame Sec. Police Dep’t., 54 N.E.3d 371 (Ind. 2016) (table); Ind. Appellate Rule 58(A).

Indiana’s Access to Public Records Act “is intended to ensure Hoosiers have broad access to most government records.” Evansville Courier & Press, 17 N.E.3d at 928 (emphasis added). The crux of this holding, however, is that an entity must first be a “public agency.” Because we find the Department is not a “public agency” subject to APRA, we affirm the trial court.

ILB: Note also footnote 4 on the "doctrine of legislative acquiescence" beginning on p. 7.

Posted by Marcia Oddi on Wednesday, November 16, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Former Marion County small claims judge charged in sexual misconduct case

Updating this ILB post from June 24, 2015, Kara Kenney of WRTV 6 is reporting:

SHELBY COUNTY, Ind. -- A former Lawrence Township judge will learn his fate Wednesday after pleading guilty to official misconduct.

Attorney Clark Rehme was arrested in 2015 for inappropriate sexual conduct with female inmates.

According to a plea agreement signed September 21, 2016, Rehme agreed to plead guilty to felony official misconduct, and in exchange prosecutors dismissed a felony sexual misconduct charge.

Rehme is expected to receive a sentence of 2.5 years of probation, and he can have no contact with the victims.

Rehme must also pay restitution of $183 and pay other probation and court costs.

The former Lawrence Township judge must complete the sex offender management program through community corrections.

At a 10 a.m. hearing Wednesday a judge will officially sentence Rehme in Shelby County.

Posted by Marcia Oddi on Wednesday, November 16, 2016
Posted to Indiana Courts

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

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (1):

Razi S. Razi v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, November 16, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on Madison County ransomware attack

This Anderson Herald Bulletin editorial on the ransomware attack on Madison County government is headed "Madison County hacker attack will cost more than ransom payment" supplementsa this earlier ILB post from Nov. 14. A quote:

The hacker used what is known as Ransomware, a software that infiltrates computers. To have access restored, the "hostage" must pay a ransom using bitcoin, an internet monetary system that is hard to trace. Most payments are between $500 and $1,000 but there has been one recorded at $30,000.

If payment is not made, the hacker can delete the victim's files.

Last week, the Federal Trade Commission warned that Ransomware is emerging as one of the most serious online threats facing businesses.

To get access back, Madison County paid a reported $28,000 after being told by its cybersecurity insurer that it would be the more prudent route.

To fix the problem, the county will need to pay thousands of dollars to defend itself from future attacks. The problem will also impact individual communities in Madison County. All are subject to similar random attacks.

Training again will be crucial. Government and business employees need to be reminded that they shouldn't open unwanted emails. Once a computer is infected, it needs to be unplugged from the network. Backing up data is a must. Those are just the start of security measures.

Foremost, government and business technology officials need to prepare for attacks. This may mean more premium payments to firms that offer cybersecurity insurance.

And the unsettling part is that the scope of Ransomware and other malware is unfathomable.

The editorial links to a FTC page on ransomware.

Posted by Marcia Oddi on Wednesday, November 16, 2016
Posted to Indiana Government

Law - "Old Treaties and New Alliances Empower Native Americans"

The NY Times has a worth-reading story today by Kirk Johnson about Native Americans and public lands. A few quotes from the long story, which also features gorgeous photography:

The simmering standoff between the police and Native Americans and their allies who oppose a giant oil pipeline project in North Dakota is the most visible sign of an emerging movement that is shifting the debate about how public lands across North America should be managed.

From the rocky, pebbled beaches north of Seattle, where the Lummi Nation has led the fight against a proposed coal terminal, to southern Utah, where a coalition of tribes is demanding management rights over a proposed new national monument, to the tiny wooded community of Bella Bella, British Columbia, 350 miles north of the United States border, Native Americans are asserting old treaty rights and using tribal traditions to protect and manage federally owned land. * * *

The force for change comes in part from tribes’ forming new alliances as they defend territorial claims and manage resources. In some places, the focus is on fossil fuels and pollution; in others, on an awareness that climate change could have a disproportionately harsh impact on tribal populations because of where they live, in coastal or forest areas, or their dependence on natural resources or foods.

Posted by Marcia Oddi on Wednesday, November 16, 2016
Posted to Environment | General Law Related

Ind. Gov't. - "What Happens When Golf Carts Hit the Streets?"

Over the years, the ILB has a very long list of entries on the use of golf carts on the streets of Indiana cities and towns, as well as on some county roads.

Last week the Elkhart Truth run a story by Shawn McGrath headed "Golf carts will now be allowed on low-traffic Elkhart County roads." - some quotes:

GOSHEN — After about 10 years of on-and-off wrangling, Elkhart County residents will be able to drive golf carts and low-speed vehicles on less-traveled roads in unincorporated areas.

Elkhart County commissioners unanimously approved amending the county’s traffic code during a meeting Monday allowing the change, which goes into effect Dec. 1.

“In the early going, we thought this was only a relatively small group that cared about this, and over the years the supporters have been very persistent,” Elkhart County Commissioner Mike Yoder said. “From my perspective, I’ve seen a shift in transportation preferences ... within residential areas that happen to be adjacent to schools, to athletic facilities. People have been asking for the option to use these types of vehicles.”

The golf cart issue has been around for at least a decade, according to Yoder, but had been muted until a resident approached commissioners about permitting their use on county roads in 2014. Yoder sees golf carts as an alternative to reliance on automobiles.

The change isn’t without critics, however. * * *

Per the new ordinance, golf cart drivers must be age 16 or older, have a driver’s license and insurance and avoid driving on state highways and numbered county roads.

Drivers are permitted to cross numbered county roads or state highways, but they won't be able to take carts on sidewalks and bike paths, according to the ordinance. Drivers and passengers must wear seatbelts and obey all traffic rules. They can only be driven during the daytime. Carts can only have as many passengers as there are factory-installed seats.

Along with seatbelts, the carts must be equipped with brakes, front and rear turn lights and a rearview mirror. Violators can be fined up to $200, according to the ordinance.

ILB: The "ten years" sounds about right, the first ILB golf cart posts were from 2006, and involved the Town of Lebanon, including a story from the Lebanon Reporter headed "State police considering crackdown on golf carts."

Meanwhile, the PEW publication, Stateline, had a story last week by Jenni Bergal headed "What Happens When Golf Carts Hit the Streets?" A sample:

At least two dozen states have passed laws authorizing local governments to allow golf carts on public roads and regulate their use, said Amanda Essex, a policy associate at the National Conference of State Legislatures. Many states prohibit them from being driven at night, limit them to roads with slower speed limits, or require their drivers to have a license.

At least four states — California, Louisiana, Nebraska and South Carolina — enacted legislation related to golf carts last year and at least nine others considered it, Essex said.

And it’s not just a Sun Belt thing. Cities in states such as Minnesota and Illinois permit golf carts on some local streets. In all, more than 350 cities and counties have adopted laws that allow golf carts on their roads, many in the last few years, according to the International Light Transportation Vehicle Association, a trade group that represents golf cart manufacturers.

“They’re simple to operate and maintain, they’re less costly, and they’re a boon to the environment,” said Fred Somers, the trade association’s general counsel. “As the years go by, people want the freedom of making short runs in a vehicle that doesn’t cost an arm and a leg.”

Posted by Marcia Oddi on Wednesday, November 16, 2016
Posted to Indiana Government

Ind. Law - "Lawmaker to propose total abortion ban in Indiana"

That is the headline to a story today by Dan Carden of the NWI Times - some quotes from the long story:

State Rep. Curt Nisly, R-Goshen, said Tuesday he plans to file a “Protection at Conception” proposal when the Republican-controlled General Assembly convenes in January.

If enacted into law, it would prohibit all abortion in Indiana in all circumstances and authorize the criminal prosecution of any doctor or woman who participates in an abortion.

“It’s time to bring the Roe v. Wade era to its logical conclusion,” Nisly said. “My goal is to deregulate abortion right out of existence in Indiana.”

The federal right to privacy, clarified by the U.S. Supreme Court in its 1973 Roe v. Wade decision and subsequent related rulings, prohibits a state from unduly interfering with a woman’s decision to have an abortion prior to fetal viability, generally considered to be 20 to 24 weeks of pregnancy.

Nisly’s proposed legislation is unconstitutional under that standard.

[Updated] See also this story by Stephanie Wang and Tony Cook in the Nov. 17th Indianapolis Star.

Posted by Marcia Oddi on Wednesday, November 16, 2016
Posted to Indiana Law

Ind. Courts - "Park Tudor could avoid prosecution in Kyle Cox sexting case"

The ILB has had coverage of the Park Tudor and IPS alleged instances of failure to timely report child abuse to DCS, as well as the Indiana Supreme Court ruling that the four hours it took Christopher Smith, then the principal at Muncie Central High School, to report a suspected rape was too long. See particularly this post from March 2, 2016, as well as these posts from Feb. 7 and Feb. 14.

Today Justin Mack reports in a lengthy story in the Indianapolis Star:

Park Tudor School could avoid federal prosecution for its mishandling of a 2015 sexting case that led to the imprisonment of a school official.

The decision not to prosecute comes with key conditions: continued cooperation with investigators, prompt and honest reporting of incidents, and complete access by investigators to people and documents at the exclusive Indianapolis private school, U.S. Attorney Josh J. Minkler said Tuesday.

The school must spend the next 14 months meeting requirements outlined in a 10-page deferment agreement focused on keeping the students of the institution safe, said Minkler, who also said the school did not receive any special treatment.

Minkler said he hoped the agreement can serve as blueprint for future criminal cases involving an institution. * * *

According to court documents, the girl's father discovered the messages and met with former head of school Matthew D. Miller and attorney Michael Blickman on Dec. 14 to tell them what was going on between his daughter and Cox. This was just days before the girl had agreed to meet Cox at his home for sex last December.

The girl's father showed Miller and Blickman screen shots of explicit messages between Cox and his daughter, which included a graphic picture of the girl. He allowed those school officials to keep the computer overnight to review the material.

The next day, on Dec. 15, a different Park Tudor official reported the suspected misconduct to the Department of Child Services by speaker phone. Court documents said Miller failed to inform that school official that Cox had exchanged messages with the student.

"The Park Tudor Head of School was present when the DCS official expressly inquired whether any pictures were exchanged. The Park Tudor Head of School was present when the other school official indicated that she had no information on that, and he did not correct that statement," said a portion of the agreement filed Tuesday.

On Dec. 16, Miller returned the computer to the student's parents and had the school's outside counsel negotiate a confidentiality agreement with them, court documents said.

On Jan. 21, Miller made false statements to IMPD detectives about his presence when the second school official made her report to DCS, the documents said, as well as about having first-hand knowledge of the sexting.

Miller died days later at his home. His death was ruled a suicide, according to the Marion County coroner's office.

The deferred prosecution agreement states Miller's actions made the institution subject to prosecution for the offense of misprision of felony. The offense applies when parties knowingly participate in a felony and do not disclose it to authorities. * * *

In a statement Tuesday afternoon, Park Tudor officials said that other than Miller, no other employees were implicated.

"Nevertheless, we recognize that the school made mistakes in relation to the Kyle Cox matter, and we regret those mistakes," said the school's statement.

Officials added that Cox's victims should be remembered, and that the former coach's actions do not represent the values of the school. In the past few months, administrators at the school say they have trained staff and modified policies regarding child abuse prevention.

According to court documents, substantial revisions have been made to the school handbook and manual on matters of child abuse reporting procedures, digital communication policies and descriptions of prohibited conduct. All faculty, staff and board members have also been trained in programs presented by Prevent Child Abuse Indiana.

The school is also working with former Federal Appellate Court Judge John Tinder on additional student-safety measures.

"Kyle Cox's reprehensible and criminal actions were wrong — both legally and morally — and a betrayal of that for which our school stands. Moreover, Park Tudor's response, through the actions of Matthew Miller and the school's then legal counsel, was inappropriate and not what we expect from our school. Nor is it what we will tolerate going forward," said the school's statement. * * *

"Institutionally, these types of occurrences are happening. You’ve got complainants involving USA Gymnastics. You have complaints involving IPS. So it's important to create, I think, a template institutions can look at and say, 'OK here's how we can turn this around. Here's how we can take full accountability and responsibility for what's going on, and here's how we can prevent this from happening again,' " Minkler said. "Clearly that was our goal in this agreement."

Posted by Marcia Oddi on Wednesday, November 16, 2016
Posted to Indiana Courts

Tuesday, November 15, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 16 NFP memorandum decision(s))

For publication opinions today (3):

In David D. Wooten v. Caesars Riverboat Casino, LLC and Bernard J. Chamernik, a 14-page opinion, Judge Riley writes:

Appellant-Plaintiff, David D. Wooten (Wooten), appeals the trial court’s summary judgment in favor of Appellee-Defendant, 1 Bernard J. Chamernik (Chamernik), which concluded, as a matter of law, that Chamernik’s actions fell within the range of ordinary behavior of participants in the sport of golf. We affirm. * * *

The duty of care owed by participants in athletic events was recently addressed by our supreme court in its pivotal opinion of Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011), which settled Indiana case law’s diverse approaches to liability for sport injuries. * * *

Acknowledging the policy considerations on which Pfenning is grounded, we recognize that encouragement to participate in golf implicitly discourages excessive litigation of claims by persons who suffer injuries from participants’ conduct. The inclusion of golf carts in the sport is “commonly understood” and while an inexact operation of a cart may somewhat “increase the normal risks attendant to the activities of ordinary life outside the sports arena, it does not render unreasonable the ordinary conduct” within the golf game, in the absence of intent or recklessness. See id. at 403. Therefore, we affirm the trial court’s summary judgment in favor of Chamernik.

In In the Matter of the Tr.S. and N.S. (Minor Children) and To.S. (Mother); To.S. (Mother) v. The Indiana Department of Child Services , an 8-page opinion, Judge May writes:
To.S. (“Mother”) appeals the trial court’s Order Approving Permanency Plan and On Review Hearing, 1 which suspended parent-child visitation and other reunification services, modified the previous dispositional order, and changed the permanency plan for Mother’s two youngest children, Tr.S. and N.S. (“Children”). She raises two issues on appeal, one of which we find dispositive: whether the trial court’s order modifying the permanency plan is an appealable final order. Because we conclude the order is not an appealable final judgment, we dismiss. * * *

Because Mother has not followed the proper procedure to seek a discretionary interlocutory appeal, we lack subject matter jurisdiction. Accordingly, we dismiss. See K.F., 797 N.E.2d at 315 (finding Court of Appeals lacked jurisdiction where parents appealed from permanency plan order without proceeding under Indiana Appellate Rule 14).

In Marco A. Galindo v. State of Indiana, a 15-page opinion, Judge Najam writes:
Marco Galindo appeals his conviction for murder, a felony, following a jury trial. He presents a single issue for our review, namely, whether the trial court abused its discretion when it refused to instruct the jury on involuntary manslaughter. We affirm. * * *

Galindo kicked or stomped Horsley in the head multiple times and strangled her with extensive and prolonged force. All of the evidence in this case contradicts Galindo’s general denial that he did not knowingly or intentionally kill Horsley. See Erlewein, 775 N.E.2d at 716. Galindo’s contentions on appeal amount to a request that we reweigh the evidence, which we will not do. The trial court did not abuse its discretion when it refused to instruct the jury on involuntary manslaughter.

NFP civil decisions today (6):

Angela Crim n/k/a Angela Domagalski v. Elias Crim (mem. dec.)

In the Matter of Jo.K. and L.K. (Minor Children in Need of Services), Ja.K. (Mother) and L.K. (Father) v. Indiana Department of Child Services (mem. dec.)

In the Termination of the Parent-Child Relationship of: B.R. (Minor Child) and M.R. (Father) v. The Indiana Department of Child Services (mem. dec.)

Vincent Morford v. TLC Express, LLC, d/b/a Indy Expediting (mem. dec.)

In re the Marriage of: Reed Stoeckley v. Christina Stoeckley (mem. dec.)

Jacqueline K. Durham v. Brandon D. Scott, Adam J. Scott, Raymond E. Decker, and Dianne J. Decker (mem. dec.)

NFP criminal decisions today (10):

Fernando J. Alvarez, Jr. v. State of Indiana (mem. dec.)

Isiaka Habimana v. State of Indiana (mem. dec.)

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

Cissy Chantel Mae Russell v. State of Indiana (mem. dec.)

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

Andrew Lamont Swanson v. State of Indiana (mem. dec.)

Craig Bright v. State of Indiana (mem. dec.)

Charles J. Bise v. State of Indiana (mem. dec.)

Freddie L. Alcantar, Jr. v. State of Indiana (mem. dec.)

Shawn Towell v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, November 15, 2016
Posted to Ind. App.Ct. Decisions

Gen. News - "Podesta reportedly fell for classic phishing scam"

Kim Komando's column, here in the South Bend Tribune, reported yesterday:

Q. All the news about hacking has started to freak me out. Did the hackers use a sophisticated attack to go after John Podesta’s email?

A. No, they did not. These hackers used one of the oldest tricks in the book. Podesta, chairman of the 2016 Hillary Clinton presidential campaign, allegedly received an email from Google that alerted him, “Someone has your password.” It was a classic phishing email that enticed him to hand over his new password to the hackers at a bogus site. He could have avoided the whole mess by setting up basic security on his account. Visit komando.com/378517 for more about the hacking and the steps you should take now, so you don’t become a victim.

Posted by Marcia Oddi on Tuesday, November 15, 2016
Posted to General News

Ind. Law - "Are verbal agreements enforceable?"

Matthew Tarkington, Batesville, an attorney at Lewis Kappes, has a long article under that heading today in the Batesville Herald-Tribune. A sample:

Indiana courts have held that the partial performance doctrine applies only to certain types of contracts governed by the Statute of Frauds. Partial performance may be invoked in the case of a guarantee or surety agreement. It is frequently applied in contracts involving the sale of land. However, the partial performance doctrine will not be applicable where the contract is one that cannot be performed within one year – for instance, a three-year employment contract. Interestingly, a “lifetime contract” can be performed within one year – and thus, is not governed by the Statute of Frauds – because there is the possibility that one could die within a year of signing the agreement.

Other jurisdictions have held that partial performance will not apply for contracts for personal services – such as home renovations, landscaping, lawn services and the like. Contracts for these personal services must be in writing. It is unclear whether or not the Indiana court will follow this lead.

Even if an oral contract is legally enforceable, the best practice is that all contracts be memorialized in writing. Written contracts are important for a number of reasons:

Posted by Marcia Oddi on Tuesday, November 15, 2016
Posted to Indiana Law

Ind. Decisions - Michigan City attorney suspended for noncooperation

In In the Matter of Kimberly D. Kiner, a brief 1-page order filed Nov. 3, the Supreme Court orders that that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately.

The ILB often does not individually mention these non-cooperation orders, as they convey little information. However, Steve Garrison of the NWI Times has a fairly detailed story today in the NWI Times on the suspension - a sample:

Kiner, 37, is under investigation because of unspecified allegations of “professional misconduct,” the order states.

Kiner denied in an interview that she acted unprofessionally, but said she was currently addressing health issues that limited her ability to participate in the investigation.

Kiner said she was diagnosed in August with Stage 3 colon cancer, which she believed was caused in part from the stress related to her job. She said she will not contest the suspension until she was in better health.

Posted by Marcia Oddi on Tuesday, November 15, 2016
Posted to Ind. Sup.Ct. Decisions

Law - "What Could Be Worse Than Repealing All of Obamacare?"

That is the heading to a letter today in the NY Times, written by Jonathan Gruber, an economics professor at the MIT, who was a health care consultant for the Obama administration.

Posted by Marcia Oddi on Tuesday, November 15, 2016
Posted to General Law Related

Ind. Courts - "Delaware County creates domestic battery court"

Douglas Walker of the Muncie Star-Press reports:

[A] domestic violence court in Delaware County [has been] established after winning the approval of the Indiana Supreme Court.

All felony domestic battery cases will now be filed in Delaware Circuit Court 1, although Judge Marianne Vorhees will continue to preside over other types of criminal cases.

The judge “volunteered to create a domestic violence court and took it over,” [Delaware County Prosecutor Jeffrey Arnold] said. “It’s just a blessing to have one court. Because then you have a lot of expertise in one judge, you’ve got consistency and you don’t have to bounce around every day to different courts.”

Arnold’s new deputy prosecutor assigned to the domestic violence unit is Maricel Skiles, formerly a deputy in the state attorney general’s office.

“The court’s been going well,” Skiles said, adding that Vorhees was “doing everything she to expedite (cases) and keep them moving so we keep that relationship with the victim... (and) get to justice as quickly as we possible can.”

Posted by Marcia Oddi on Tuesday, November 15, 2016
Posted to Indiana Courts

Monday, November 14, 2016

Ind. Courts - More on: COA next week to hear public records challenge

Updating this ILB post from this morning, a newly posted brief story for Politico by Matthew Nussbaum, headed "Pence pushes for email privacy," notes:

The effort to shield an email from public scrutiny follows an election in which Hillary Clinton’s campaign was hounded by her use of a private email server while serving at the State Department — a move that was criticized as both a security risk and a blow against transparency.

Posted by Marcia Oddi on Monday, November 14, 2016
Posted to Indiana Courts | Indiana Government

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

For publication opinions today (1):

In William McNeal v. State of Indaina , a 16-page opinion, Judge Crone writes:

William McNeal appeals his conviction for level 5 felony possession of cocaine, following a bench trial. He contends that the trial court abused its discretion in admitting evidence that he claims was obtained in violation of his rights pursuant to the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Finding no federal or state constitutional violation, and therefore no abuse of discretion, we affirm.
NFP civil decisions today (1):

Patrick J. Overman v. Estate of Shirley Ann Overman, William Scott Overman, the Executor, Stuart G. Kelly (mem. dec.)

NFP criminal decisions today (5):

Deandre L. Barnes v. State of Indiana (mem. dec.)

Kraig Von Reese Brown v. State of Indiana (mem. dec.)

Mario Kelly v. State of Indiana (mem. dec.)

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

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

Posted by Marcia Oddi on Monday, November 14, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending November 11, 2016

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

Posted by Marcia Oddi on Monday, November 14, 2016
Posted to Indiana Transfer Lists

Ind. Gov't. - Undercover in the Clark County jail

Long, fascinating story by Elizabeth DePompei of the News and Tribune (here via the Indiana Economic Digest) - it begins:

JEFFERSONVILLE — Clark County Sheriff Jamey Noel knows that when someone is booked into his jail, that person is likely at one of the lowest points of an addiction or mental illness.

Housing them inside a pod isn't enough, Noel said. The majority of people in the Clark County jail need some sort of treatment to keep them from coming back. But how can an underfunded, understaffed jail possibly live up to the task? That's what Noel wanted to explore when he agreed to let TV cameras and undercover participants in the jail last fall.

Posted by Marcia Oddi on Monday, November 14, 2016
Posted to Indiana Government

Ind. Gov't. - "Delaware County investigating hacker safeguards"

Keityh Roysdon reported last week in the Muncie Star-Press:

Delaware County doesn't want to be the next Madison County, particularly when it comes to having information systems held hostage.

Delaware County officials have authorized their information technology department to investigate methods, including software, to prevent the kind of ransomware attack that recently hit neighboring Madison County.

According to news accounts late last week, Madison County officials acknowledged they had been shut out of their servers and that the hacker responsible had demanded an undisclosed amount of payment to restore control. The county couldn't look up old court records or even use its inmate-booking computer program at the jail. Indiana State Police investigators were in charge of the case.

See ILB post here, from Nov. 9th, on the Madison County attack.

The Herald-Bulletin later reported:

Sources say Madison County agrees to pay about $28,000 to computer hackers who demanded payment to unlock encryption key following a “ransomware” attack.
Here is a more detailed story about the aftermath, including:
Indiana State Police Capt. Dave Bursten said the investigation is ongoing.

“Investigations of this nature are complicated, are rarely solved, and typically involve criminal actors from foreign countries,” he said.

Bursten said the best defense to malware attacks is daily backups to segregated backup sources or to third party backup vendors not on the same system. He said internal backups that are not segregated offer no protection to ransomware attacks

Concerning the payment of a ransom, Bursten said ISP concentrates on the criminal aspect of the investigation and makes no recommendation related to the payment or non-payment of ransom.

“Decisions to pay or not pay a ransom are business decisions,” he said.

Posted by Marcia Oddi on Monday, November 14, 2016
Posted to Indiana Government

Ind. Courts - COA next week to hear public records challenge

Fatima Hussein, the new civil courts reporter for the Indianapolis Star, has a long story this morning on a lawsuit to access certain of Governor Pence's email communications. The case originated in a Texas immigration lawsuit Gov. Pence joined, hiring outside counsel after AG Zoeller declined to participate - see this Feb. 18, 2015 ILB post for background.

From today's Star story:

Pence hired Indianapolis law firm Barnes & Thornburg to join the Texas litigation. A representative from the firm — which is also representing Pence in this case — did not respond to IndyStar requests for interview.

In December 2014, [William] Groth requested information regarding Pence's decision to hire outside counsel and the cost to Indiana taxpayers.

"I think joining the lawsuit without the attorney general and hiring that firm was a waste of taxpayer dollars and the people have the right to know how much of their money was spent,” Groth said. * * *

Pence produced the documents in the request “but those documents included substantial redaction,” according to court documents.

The 57-page response also included an email that Daniel Hodge, Abbott's chief of staff, sent to 30 recipients in various states asking them to join the lawsuit against Obama.

The message included an attached white paper, but the governor failed to produce the document, according to court records.

After a yearlong trial, the Superior Court held that the issue was not a matter for the courts to decide, citing a Indiana Supreme Court case decided just days before.

In a 4-1 ruling, the Indiana Supreme Court ruled in Citizens Action Coalition, et al. v. Indiana House Rep., that under the Indiana Constitution’s separation of powers clause the legislature's redactions were nonjusticiable, a legal term that means not for the court to decide. Groth was also the attorney representing the plaintiffs in that case. * * *

Paul Jefferson, a former professor of state constitutional law at the Indiana University Robert H. McKinney School of Law, said the major question for the appellate court to decide is "whether they're going to extend that (Citizens Action Coalition, et al. v. Indiana House Rep.) to the executive branch as a whole."

He said if the court rules in favor of the governor, "that would severely limit the Access to Public Records Act."

ILB: The ILB has had a number of posts on CAC v. Koch, the non-justicability rationale, and its ramifications. See especially this one from April 26th, quoting a story from the Bloomington Herald-Times.

Posted by Marcia Oddi on Monday, November 14, 2016
Posted to Indiana Courts | Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 11/14/16):

Next week's oral arguments before the Supreme Court (week of 11/21/16):

Tuesday, November 22

Webcasts of Supreme Court oral arguments are available here.




This week's oral arguments before the Court of Appeals (week of 11/14/16):

Thursday, November 17

Next week's oral arguments before the Court of Appeals (week of 11/21/16):

Monday, November 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, November 14, 2016
Posted to Upcoming Oral Arguments

Thursday, November 10, 2016

Ind. Gov't. - "Muncie officials won't disclose attorney fees for lawsuit, FBI probe"

Some quotes from a story this evening by Keith Roysdon of the Muncie Star-Press:

MUNCIE, Ind. — City officials won't disclose how much they're paying an Indianapolis law firm to defend a federal court lawsuit and advise Mayor Dennis Tyler regarding an ongoing FBI investigation.

The city refused to release any information sought by The Star Press — the amount paid to attorneys from the Indianapolis law firm of Ice Miller or the number of hours they have devoted to the tasks — citing among other reasons attorney-client privilege. * * *

The city's refusal to release information about attorney fees — which are several hundred dollars an hour according to a contract between the city and Ice Miller — or time the attorneys devoted to those matters came in a letter signed by City Controller Audrey Jones, whose office received the request for information from The Star Press.

The letter notes that The Star Press asked for "draws and amounts for Ice Miller attorneys David Carr, Paul Sweeney plus other attorneys in Shroyer lawsuit and representing Mayor Dennis Tyler for any date."

"This request is not made with reasonable particularity," the letter noted, citing the Indiana standard for release of public records. "Moreover, the city does not have any records containing draws or amounts paid to David Carr or Paul Sweeney or records related to Ice Miller 'representing Mayor Dennis Tyler.' As far as the city knows, Ice Miller does not personally represent Mayor Dennis Tyler, nor would the city possess records related to such a personal representation."

The letter also noted court rulings that "privileged communication between attorney and client is exempt from public inspection because it is declared confidential by statute and Supreme Court rule. Consequently, the request seeks confidential information that is not disclosable."

The office of the Indiana Public Access Counselor told The Star Press that while "attorney invoices are somewhat redacted to protect any attorney-client privileged communication ... the amounts are always public record." That could include everything except a detailed narrative or description of what was communicated. The access counselor comments are from an interview, not from a formal opinion of the public access counselor. Because The Star Press is continuing to seek the information from the city, no formal opinion has been requested. * * *

The Star Press reported in April that the city had hired Ice Miller attorneys to defend the Shroyer Bros. lawsuit in U.S. District Court. At that time, the contract between the city and Ice Miller noted that attorney fees could reach as much as $625 an hour. Lower-level attorneys could make $415 to $560 an hour, while paralegals and legal assistants could be charged at $200 to $300 an hour.

Posted by Marcia Oddi on Thursday, November 10, 2016
Posted to Indiana Government

Ind. Courts - "Auditor says Eskenazi fired her for identifying improper billing" [Updated]

John Russell of the IBJ is reporting this afternoon in a story that begins:

A compliance auditor at Eskenazi Health claims she was fired after alerting her supervisor that the hospital was improperly billing the federal government and Indiana for potentially hundreds of patients whose bills were already being paid by research grants.

Colette D. Jackson filed a complaint Thursday in U.S. District Court in Indianapolis against Eskenazi and its parent, Health and Hospital Corporation of Marion County, saying they retaliated against her after she tried to get them to stop submitting the false claims.

Jackson said she discovered the problems in June, when one of her research billing specialists brought the matter to her attention. The complaint did not specify which grants, studies or types of treatments were involved, nor the amount of money at stake. The problem involved “potentially hundreds” of Medicare or Medicaid patients over at least two years, the suit said.

The ILB will try to post the complaint tomorrow.

[Updated 11/11/16] Here is the 7-page complaint, filed Nov. 10, 2016.

Posted by Marcia Oddi on Thursday, November 10, 2016
Posted to Indiana Courts

Ind. Courts - "A former Madison attorney set to go to trial next week took a plea deal Wednesday"

Some quotes from a Madison Courier story this afternoon, reported by Renee Bruck:

A former Madison attorney set to go to trial next week took a plea deal Wednesday morning and admitted guilt to multiple felony counts of forgery and a charge of felony theft.

John C. Eckert, 67, agreed in Jefferson Circuit Court to plead guilty to 12 Class C felony counts of forgery and a lesser-included Class D felony count of theft. All of the charges fall under the old Indiana criminal code since the crimes occurred before code changes were implemented in July 2014.

The charges stem from a year-long investigation – which was started by Indiana State Police and later taken over by the FBI – into the theft of money through forgery from estates and trusts of which Eckert was a co-trustee. He also took money placed by a family member into Eckert’s law firm trust account. He used the funds for personal purposes.

The forgeries and theft took place between 2003 and 2014, court documents said. * * *

Court records claimed John Eckert was required to give back all of the funds held in the client’s funds trust account to rightful owners after he surrendered his Indiana law license on June 28, 2013, but he did not return the $1.3 million belonging to his brother and sister-in-law.

John Eckert surrendered his law license after the Indiana Supreme Court opened a case against him in July 2013 based on allegations of misconduct, but he did not face disciplinary action after agreeing to give up his license.

Here is an earlier story from Aug. 24, 2015.

Posted by Marcia Oddi on Thursday, November 10, 2016
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 3 NFP memorandum decision(s))

For publication opinions today (2):

In In re the Termination of the Parent-Child Relationship of A.W. and G.S.: H.S. (Mother) v. The Indiana Department of Child Services, a 15-page opinion, Chief Judge Vaidik writes:

H.S. (“Mother”) and G.S. (“Father”) are married and have one child together, G.A.S. Mother has a second child, A.W., from a prior relationship. Mother and Father have raised both children together. After Mother and Father were arrested at the same time, the Department of Child Services (“DCS”) took the children and eventually placed them in foster care. DCS filed petitions to terminate the parental rights of both Mother and Father to their respective children. At the time of the termination hearings, Mother was incarcerated for a drug offense and scheduled to be released in seven months. She and Father both testified that they intend to remain together and live together once Mother is released from prison. The trial court concluded that Mother’s rights to A.W. and G.A.S. should be terminated, but Father’s rights to G.A.S. should not be terminated. The trial court made no mention of the fact that Mother would be living with Father, and therefore G.A.S., despite the termination order. Mother appeals.

We find that the trial court’s decision to terminate Mother’s rights knowing she will be living with G.A.S. is incongruous with and antithetical to the trial court’s finding that the conditions that resulted in the removal of A.W. and G.A.S. from Mother will not be remedied. That contradiction, together with Mother’s efforts in prison to better herself, lead us to conclude that DCS failed to prove by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in A.W.’s and G.A.S.’s removal from Mother will not be remedied. Accordingly, we reverse. * * *

Despite all of this testimony, the trial court still concluded that A.W. and G.A.S. should be separated; A.W. is to be placed for adoption, and G.A.S. is to be returned to the care of his Father. We conclude that DCS has failed to prove by clear and convincing evidence that terminating Mother’s rights to A.W. and G.A.S., thus separating the children, is in their best interests. Reversed.

In William C. Williams v. State of Indiana , a 10-page opinion concerning chain of custody, Chief Judge Vaidik writes:
William C. Williams was charged with two counts of Class B felony operating a vehicle with a schedule I or II controlled substance in his blood causing death. One count was based on having marijuana in his blood, and the other count was based on having methamphetamine in his blood. The jury convicted Williams of both counts. Williams now appeals his methamphetamine-related conviction only. Specifically, Williams contends that the State failed to establish a chain of custody for his blood sample so as to allow the admission of the results showing that his blood sample tested positive for methamphetamine. In order to establish the chain of custody for Williams’ blood sample, the State relied heavily on Exhibit 65, which the trial court admitted under the businessrecords exception to the hearsay rule. Williams, however, claims that the trial court abused its discretion in admitting Exhibit 65 because the State did not properly authenticate it.

We agree that the State did not properly authenticate Exhibit 65 either by a certification that complied with Indiana Evidence Rule 902(11) or by a records custodian who testified that the records were made at or near the time by—or from information transmitted by—someone with knowledge and that they were kept by the lab in the ordinary course of business. Without Exhibit 65, the State cannot establish the chain of custody for the sample of Williams’ blood that tested positive for methamphetamine. We therefore reverse Williams’ conviction based on having methamphetamine in his blood. * * *

Anticipating our conclusion that the State failed to establish the chain of custody for Williams’ blood sample, the State “requests that [we] affirm Williams’ conviction on count I, causing death when operating a motor vehicle with” marijuana in his blood. Appellee’s Br. p. 20 n.9. Accordingly, we reverse Williams’ conviction on Count II, which is based on the methamphetamine evidence, and affirm Williams’ conviction on Count I, which is based on the unchallenged marijuana evidence.

NFP civil decisions today (0):

NFP criminal decisions today (3):

Chandler Turner v. State of Indiana (mem. dec.)

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

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

Posted by Marcia Oddi on Thursday, November 10, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Statistics available from Indiana Supreme Court and Indiana trial courts

Here is the news release.

Posted by Marcia Oddi on Thursday, November 10, 2016
Posted to Indiana Courts

Ind. Gov't. - "Six people inducted into Indianapolis Public Schools' Hall of Fame on Thursday"

From an Indianapolis Star story today by Maureen C. Gilmer, who writes that one of the six honorees will be:

Theodore R. Boehm, former Indiana Supreme Court justice who graduated from Shortridge High School in 1956. * * *

Boehm, who today is a partner with Hoover Hull Turner LLP, said Shortridge was a "fabulous public high school," routinely rated among the top 10 in the country in that era. "You could take Russian, Greek, calculus ... . I grew up in an age with some really terrific teachers who in today's world would be doctors and lawyers, but they were teachers at the high school and elementary level."

He rattled off several English and math teachers who made a difference in his education, recalling an eighth-grade teacher at School 43 who not only taught the structure of language, "but also pounded into us an extensive vocabulary and made us do a lot of reading so I was well-prepared for high school."

Today's IPS faces different challenges than it did 60 years ago, but Boehm is encouraged by the school system's willingness to respond to change and try different programming. Time will tell how successful those initiatives will be, he said.

Posted by Marcia Oddi on Thursday, November 10, 2016
Posted to Indiana Government

Ind. Courts - "Marion County Traffic Court closed until further notice"

Justin Mack reports in today's Indianapolis Star:

Marion County Traffic Court closed without warning Wednesday, resulting in court dates being postponed and rescheduled.

Notices placed on the front doors of the building at 8115 E. Washington St. notified residents that the facility will remain closed until further notice. The letter also cites "mechanical issues" as the reason for the closure.

Visitors who had court slated for Wednesday were informed that their appointment would be rescheduled. If a payment for a citation was due Wednesday, a one-day extension was granted.

Residents who have tickets to pay should return to the building on Thursday or call (317) 327-5741. Calls have been placed to court officials seeking more information about the closure.

The locked doors plastered with notices took many visitors by surprise. One by one, people who had Wednesday appointments walked to the front of the building and read the notices with confused stares.

"I'm not sure what I'm supposed to do now," said Avery Stokes, an Indianapolis resident who was providing a ride to someone who had a Wednesday court appointment. "I moved around work hours and lost money to be here today, but I'm the only one who can get him up here. I'm not trying to go through all that again."

See also this WTHR 13 story by Steve Jefferson that reports:
As of Wednesday morning, the building had no running water. The judge over traffic court suspended all hearings for right now.

The traffic court building is located at 8115 E. Washington St. in Indianapolis.

Drivers have shown up for traffic court at the building all day Wednesday only to find the doors locked.

The court handles about 150 cases per session and receives payment for citations from an additional 100 people during the average business day.

Sources tell Eyewitness News that the building and strip mall that houses the traffic court facility had a broken water meter needing repair.

Marion County court officials have reportedly received notice of the repairs and that they could resume business as usual.

Posted by Marcia Oddi on Thursday, November 10, 2016
Posted to Indiana Courts

Ind. Courts - "Planned Parenthood fights 18-hour ultrasound rule"

Updating this ILB post from yesterday, Fatima Hussein of the Indianapolis Star reported late yesterday:

Planned Parenthood of Indiana and Kentucky argued in federal court Wednesday that Indiana's latest abortion restriction puts an undue burden on women and serves no purpose other than to block their right to an abortion.

The group is seeking an injunction that would block the state from enforcing a clause in House Enrolled Act 1337, passed in March. That clause adds an 18-hour waiting period to an existing requirement that a woman have an ultrasound before she can have an abortion.

Because the rule requires multiple trips to a clinic before an abortion can be performed, said Ken Falk, legal director for the American Civil Liberties Union of Indiana, some women are forced to travel more than 400 miles due to the scarcity of abortion providers in the state.

"This creates a substantial obstacle that disproportionately affects low-income women," Falk told U.S. District Judge Tanya Walton Pratt in the Federal Courthouse in Downtown Indianapolis. The ACLU filed the federal lawsuit in July on behalf of Planned Parenthood. Falk also argued that Planned Parenthood does not have the resources to comply with the new rule.

The state argued that Planned Parenthood's lack of funds does not create a constitutional question and the new law does not create an additional burden on women seeking an abortion — rather, the 18-hour rule gives women time to reflect on their decision, said Thomas Fisher, the state's solicitor general.

"(Planned Parenthood) argues that the accumulated burdens of multiple regulations, a lack of physicians, resources and personnel, and personal circumstances of some patients render this statute unconstitutional," Fisher said, adding that none of those factors make the new rule unconstitutional. * * *

Pratt could rule on the injunction as early as next week. She already granted an injunction in July, suspending a prohibition on abortions sought solely because a fetus had been potentially diagnosed with a disability such as Down syndrome.

That case, filed in May, contends that the state's expanded abortion restrictions are unconstitutional because they infringe on a woman's right to obtain a first-trimester abortion.

House Enrolled Act 1337 has been described as one of the nation's most restrictive abortion laws.

It also require funerals for fetal remains, and the identities of abortion providers must be public information. Also, individual doctors can be liable for violating a state statute.

Posted by Marcia Oddi on Thursday, November 10, 2016
Posted to Indiana Courts

Wednesday, November 09, 2016

Ind. Gov't. - More on "Hackers seize Madison County government servers, demand ransom"

An update on this worrysome story from Nov. 7th.

The heading to the Nov. 9th critical commentary at NetworkWorld: "Ransomware hammers Madison County, Indiana: Madison County Commissioners unanimously agreed to pay the ransom>" Some quotes from the comprehensive report:

[T]here are conflicting reports about the details of the ransomware attack. For example, after the attack reportedly occurred on Friday Nov. 4, locking the county out from accessing records, Fox59 asked Madison County IT Director Lisa Cannon, how could this happen “to an entire county’s computer system?” In return, “Cannon explained that the IT department took all the security measures they could have, but hackers found a way in.”

Wouldn’t taking all the security measures possible have included having offline backups, or at least some backups? Cannon told TheHeraldBulletin, “We’re in the process of adding a backup system.” Unfortunately, that’s too little too late.

Employee awareness might also need a bit of work; or perhaps it was simply sound advice when an Indiana State Police spokesman advised people that it is “critical to back up pictures, files, records - everything either in the cloud or a on a hard drive. Also, avoid clicking on any links you're not familiar with.”

Cannon claimed, “County officials are confident that no personal information from local residents was compromised.” However, she also added, “We’re checking to determine if any information was harvested through the attack.”

There was no mention of the ransomware variant that hit the county. Several articles reference a specific quote on Fox59 that is no longer a part of the article. That missing quote was allegedly a statement by Madison County Sheriff Scott Mellinger: “There are so many unknowns here because even the investigators that had a lot of experience in this area are telling us they have not dealt with this specific virus before.”

Umm, that is doubtful but not impossible. However, now the article quotes Sheriff Mellinger as saying, “They are calling this a very significant event and that means whoever is behind it absolutely knows what they are doing and it is going to be extremely difficult for us to gain access of our servers on our own.”

Additionally, there have been only vague references to the ransom amount demanded. WTHR claimed the ransom was “thousands of dollars.” Cannon refused to reveal the actual amount, but told Fox59 that it was a “large sum.” Yet Madison County Commissioner John Richwin claimed the ransom “was for an amount less than most county residents would have anticipated.”

According to StateScoop, during an emergency meeting on Saturday, county commissioners were told “they had seven days to pay the ransom. Commissioners unanimously agreed to pay the ransom.”

Madison County was covered by Travelers Insurance, which will reimburse a portion of the cost, less the county’s deductible. * * *

As for the county commissioners meeting and voting to pay the ransom on Saturday, did paying the ransom work? As of Monday, it was reported that Madison County was not expected to be up and running until today. StateScoop said earlier today that “services are still being brought online.”

This long story today from the Washington Times-Herald includes:
ANDERSON — On the advice of their insurance company Madison County officials are moving forward to pay the ransom demands by a unknown group that attacked the county’s computer system.

Madison County was hit by a ransomware attack over the weekend that prevented access to county records.

The malware attack has not affected the election where the voting registration records are maintained on a separate computer server.

County officials are hoping the problem will be resolved by Wednesday once the encryption code is received from the hackers.

“We’re following the directions of our insurance carrier,” Madison County Commissioner John Richwine said Monday.

The amount of the ransom is not being provided by the commissioners, but Travelers Insurance, the county’s insurance carrier, will reimburse a portion of the cost, less the county’s deductible.

If you read the whole story, you will see why NetworkWorld raised concerns.

Posted by Marcia Oddi on Wednesday, November 09, 2016
Posted to Indiana Government

"Ind. Courts - More on: "ACLU, Planned Parenthood Challenge New Ultrasound Requirements" [Corrected]

Updating this post from July 7, which links to a copy of the complaint in Planned Parenthood of Indiana and Kentucky. v. Commissioner, Indiana State Department of Health; Prosecutors of Marion, Lake, Monroe and Tippecanoe Counties, the hearing, which originally was set for today, is now set for tomorrow, Nov. 10, according to this report from WSBT:

INDIANAPOLIS (AP) — A federal judge is set to hear arguments in Planned Parenthood's bid to block a new Indiana mandate that women undergo an ultrasound at least 18 hours before having an abortion.

The judge in Indianapolis will hear arguments Thursday from attorneys for Planned Parenthood, who are seeking a preliminary injunction blocking the mandate, and attorneys for the state, who oppose that move.

ILB: The WSBT story is wrong, the hearing was today. I'll post the IndyStar coverage when it is available.

Here it is.

Posted by Marcia Oddi on Wednesday, November 09, 2016
Posted to Indiana Courts

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

Updating this long ILB post from August 29th, Jacob Gershman of the WSJ Law Blog reports today in a story that begins:

Illinois voters in on Tuesday threw their support behind the judicial candidacy of Rhonda Crawford. The former law clerk was vying for a judgeship in the Chicago area and defeated her rival by what appears to be a landslide.

She may have the backing of the people, but for now, Ms. Crawford won’t be taking a seat on the Chicago-area bench. Standing in her way are criminal misconduct charges leveled against her for allegedly donning a judicial robe and illegally posing as a judge in a courtroom.

Another hurdle is her lack of a law license, which a court disciplinary committee suspended after accusing her of illegally presiding over a handful of traffic court cases. Along with yanking her license, the court also barred Ms. Crawford from becoming a real judge while the matter is pending.

The Chicago-Kent College of Law graduate was also fired from her job as a clerk for the chief judge of Cook County’s circuit court.

Posted by Marcia Oddi on Wednesday, November 09, 2016
Posted to Courts in general

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

For publication opinions today (1):

In Amy L. Brown v. Adrian Lunsford , a 17-page opinion, Judge Barnes writes:

Amy Brown appeals the trial court’s order granting visitation with Brown’s daughter, S.B., to Adrian Lunsford, Brown’s former boyfriend, who is unrelated to S.B. We reverse.

Brown presents three issues for our review, which we restate as:

I. whether the trial court had “jurisdiction” to order visitation between Lunsford and S.B.;
II. whether Lunsford should have joined S.B. as a necessary party in the paternity action involving the parties’ child A.L.; and
III. whether the trial court abused its discretion by ordering visitation between S.B. and Lunsford. * * *

Brown has waived her contentions that the trial court erred when it adjudicated this matter pursuant to the UCCJA. Brown also waived her claim that Lunsford failed to join S.B. as a necessary party to this action. Nonetheless, we conclude the trial court abused its discretion when it ordered visitation between S.B. and Lunsford. We reverse.

NFP civil decisions today (3):

L.M. Zeller, Individually, and D/B/A Zeller Elevator Company, LEO Mark Zeller, Louis M. Zeller III, Andrew M. Boeglin, and Matthew Boeglin v. Indiana Fire Prevention, et al. (mem. dec.)

In the Matter of K.C., C.M., Ki.C., & K.M., (Minor Children), and, A.C., (Mother) & R.L.M., (Father) v. The Indiana Department of Child Services (mem. dec.)

In the Matter of C.B., a Child alleged to be Delinquent v. State of Indiana (mem. dec.)

NFP criminal decisions today (2):

Corvette McCampbell v. State of Indiana (mem. dec.)

Tonya L. Gordon v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, November 09, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Right-to-hunt measure passes in Indiana"

Zach Osowski reports for the Indianapolis Star in a story that begins:

INDIANAPOLIS — Indiana voters overwhelming decided to amend the state constitution's bill of rights, adding a right to hunt and fish.

Posted by Marcia Oddi on Wednesday, November 09, 2016
Posted to Indiana Government

Ind. Courts - Floyd County Circuit Court Judge J. Terrance Cody will keep his seat for another six years

Updating this ILB post from Nov. 2nd, which was headed "Prosecutor Keith Henderson running for Floyd Circuit Judge, while awaiting Supreme Court decision on disciplinary charges," Madeleine Winer of the Louisville Courier Journal reports this morning:

Incumbent Floyd County Circuit Court Judge J. Terrance Cody will keep his seat for another six years.

Cody defeated Republican Keith Henderson with 53 percent of the vote to Henderson's 47 percent.

Both Henderson and Cody are well-known Floyd County lawyers who have served in their respective positions for over 10 years. Cody, a Democrat, has served as the county's circuit court judge for 18 years. * * *

In other races, Floyd County Democrats didn't fair as well.

According to this ILB post quoting a News & Tribune story, "Henderson has two years left in his current term as prosecutor."

Posted by Marcia Oddi on Wednesday, November 09, 2016
Posted to Indiana Courts

Ind. Gov't. - More on "Race for attorney general pits Elkhart County prosecutor against Lake County judge"

Updating this ILB post from Nov. 7th, which includes links to earlier posts, Fatima Hussein of the Indianapolis Star reports in a story headed "Curtis Hill elected Indiana attorney general," that four-term Elkhart County Republican prosecutor Curtis Hill was elected Indiana's 43rd attorney general yesterday:

"As your next attorney general, I will defend your freedom," Hill said in his victory speech at the JW Marriott hotel downtown.

"Today we saw a record-breaking turnout here in Indiana and across the nation," Hill said. "We're going to take this country back."

Hill will replace Greg Zoeller, the two-term Republican attorney general who did not seek re-election.

Posted by Marcia Oddi on Wednesday, November 09, 2016
Posted to Indiana Government

Tuesday, November 08, 2016

Law - "U.S. Enforcing Insurance Law to Help Fight Opioid Abuse"

Interesting story today in the NY Times by Robert Pear. A sample:

A White House task force on Oct. 27 said insurers needed to understand that coverage for the treatment of drug addiction must be comparable to that for other conditions like depression, schizophrenia, cancer and heart disease. As an example, the administration said, insurers may not require prior approval for drugs to treat opioid addiction, like buprenorphine, if they do not impose similar restrictions on drugs with similar safety risks that are prescribed for physical illnesses.

Federal laws and rules requiring mental health parity have been adopted with bipartisan support over the last 20 years, but the task force found that compliance was lagging.

Posted by Marcia Oddi on Tuesday, November 08, 2016
Posted to General Law Related

Ind. Decisions - Tax Court posts one, decided Monday, re inheritance tax

In Indiana Department of State Revenue, Inheritance Tax Division v. The Estate of Orville J. Rauch, a 12-page opinion, Judge Wentworth writes:

The Indiana Department of State Revenue, Inheritance Tax Division appeals the Jasper Circuit Court’s (Probate Court) order determining the inheritance tax liability of The Estate of Orville J. Rauch. The Department asserts that the Probate Court erred when it decided that beneficiaries Robert and Claudia Wandless were Class A transferees because they had an in loco parentis relationship with the deceased. The Court affirms. * * *

On appeal, the Department contends that the Probate Court erred in finding that Orville had an in loco parentis relationship with Claudia and Robert and thus erred in granting them Class A Transferee status. (See Appellant’s Br. at 14.) The Department reasons 1) that Orville’s behavior was inconsistent with the plain meaning of the term “in loco parentis,” having neither taken the place of Claudia and Robert’s natural parents nor assumed the legal rights, duties, and responsibilities of a parent; and 2) that the facts show that Orville was their friend, not a parent. * * *

For the reasons stated above, the Court affirms the Probate Court’s order that Claudia and Robert Wandless had an in loco parentis relationship with the deceased, Orville J. Rauch, from before they were 15 years old until his death and are thus Class A transferees regarding the inheritance tax liability of his estate.

Posted by Marcia Oddi on Tuesday, November 08, 2016
Posted to Ind. Tax Ct. Decisions

Law - "A Fifth-Year Could Have Told You About Dupe Emails, WHY COULDN’T THE FBI?

That is the heading of a Nov. 6th post by Elie Msytal of Above the Law. It begins:

Any Biglaw associate could tell you that it doesn’t take very long to review half a million emails. That’s not a hard document review. You throw enough bodies at the problem, and you can get it done in a week. You can get it done even more quickly if most of those emails are dupes that you have already reviewed during your investigation.
ILB: One wonders if this is an indication of the FBI's technological competency?

Posted by Marcia Oddi on Tuesday, November 08, 2016
Posted to General Law Related

Monday, November 07, 2016

Ind. Decisions - Tax Court posts one today, decided Friday, another big box/dark box case

In Monroe County Assessor v. SCP 2007-C-26-002, LLC a/k/a CVS 3195-02, an 8-page opinion, Judge Wentworth writes:

On August 19, 2015, the Indiana Board of Tax Review issued a final determination valuing a CVS store in Bloomington, Indiana for purposes of the 2009 through 2013 assessments. The Monroe County Assessor has challenged that final determination, but the Court affirms. * * *

The Assessor contends that the Indiana Board’s final determination is contrary to law and must be reversed because it does not value the subject property in accordance with Indiana’s market value-in-use standard. (See, e.g., Pet. at 5-6 ¶¶ 15-16, 19-22; Oral Arg. Tr. at 14.) More specifically, the Assessor argues that the Meijer, Trimas Fasteners, and Millennium cases were wrongly decided by the Tax Court and thus, the Indiana Board’s “attachment” to them for purposes of determining a property’s market value-in-use is “unreasonable.” (See, e.g., Pet’r Br. at 2-3, 8-11.) The Assessor reasons that the Legislature enacted Indiana Code §§ 6-1.1-4-43 and -44 in 2015 to put the Indiana Board on notice that the Tax Court’s holdings in Meijer, Trimas Fasteners, and Millennium were “defective” and did not comport with the intended meaning of market value-in-use.

This very same argument has already been advanced in – and rejected by – the Tax Court. * * *

Because the Court believes its previous cases correctly explain the market value-in-use standard and that the Court is not the proper arena to change a law, it continues to stand by its analyses in those cases and need not repetitively address the argument in this opinion. * * *

The Assessor also argues that the Indiana Board’s final determination must be reversed because it is “muddled, inconsistent . . . [and] doesn’t make sense.” (Oral Arg. Tr. at 9, 11, 14 (asserting that the final determination’s inconsistencies make it arbitrary and capricious).) [ILB: note citing of oral argument.] * * *

Through this argument, the Assessor invites the Court to both revisit her first claim that the Tax Court has interpreted market value-in-use incorrectly, (see, e.g., Oral Arg. Tr. at 30-32 (challenging the Court to “tell me how . . . th[ese] different jumbled thoughts value the utility to this CVS” and asserting that “I don’t think value has anything to do in property tax cases anymore”)) [ILB: note citing of oral argument.], and establish bright-line rules for the application of comparable properties under the various approaches to value. The Court need not do either. * * *

The Assessor has not demonstrated that the Indiana Board’s final determination is either contrary to law or arbitrary and capricious. Accordingly, the Indiana Board’s final determination in this matter is AFFIRMED.

ILB: Another Monroe County v. CVS case (this one -00029) was heard by the Tax Court on Oct. 31 - see ILB post here.

Posted by Marcia Oddi on Monday, November 07, 2016
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 7 NFP memorandum decision(s)) [Updated] [Plus! links now corrected]

For publication opinions today (2):

In Stephen W. Robertson, Commissioner, Indiana Department of Insurance, as Admin. of the Indiana Patient's Compensation Fund v. Anonymous Clinic, et al., a 28-page opinion, Judge Bradford writes:

Beginning in 2012, patients around the country began suffering meningitis after being injected with preservative-free methylprednisolone acetate (“MPA”), a steroid purchased from New England Compounding Pharmacy, Inc., a/k/a the New England Compounding Center (“NECC”). It was soon discovered that some lots of MPA had become contaminated with fungus. This consolidated appeal concerns claims brought by injured patients (or those suing on their behalf) (collectively, “the Plaintiffs”) against Anonymous Clinic in St. Joseph County and Orthopedic and Sports Medicine Center of Northern Indiana (“OSMC”) and affiliated entities in Elkhart County (collectively, “the Defendants”). Plaintiffs contend that the Defendants were negligent in choosing to administer preservative-free MPA and in failing to properly evaluate NECC before using it as a supplier. Some of the Plaintiffs brought suit without using the procedures laid out in the Indiana Medical Malpractice Act (“the MMA”), and Defendants moved either for dismissal or summary judgment on the basis that Plaintiffs’ claims were claims of medical malpractice.

Stephen W. Robertson, acting in his capacity as Commissioner of Indiana Department of Insurance, which administers the Indiana Patient’s Compensation Fund (“the PCF”) intervened, arguing that Plaintiffs’ claims were of general negligence and therefore not subject to the provisions of the MMA. The trial courts ultimately agreed with Defendants and Plaintiffs (who had reversed their initial position) that Plaintiffs’ claims were governed by the MMA. In this consolidated appeal, the PCF contends that the trial courts erred in concluding that Plaintiffs’ claims are claims of medical malpractice. Plaintiffs, Defendants, and Amici Curiae (health-care providers facing similar claims in other cases), contend that Plaintiffs’ claims are subject to the MMA as they involve actions informed by the exercise of professional medical judgment. Because we conclude that Plaintiffs’ claims are subject to the MMA, we affirm the judgments of the trial courts and remand for further proceedings consistent with this opinion. * * *

There is really only one issue before the court in this case, whether alleged negligence by a medical provider in selecting a certain drug from a particular supplier are claims subject to the MMA or sound in general negligence. Indiana law stands for the proposition that if allegations cannot be understood by laypersons without resort to expert testimony, the claims are governed by the MMA. We conclude the claims in this case, i.e., that Defendants were allegedly negligent in choosing to purchase and administer preservative-free MPA and in choosing NECC without proper vetting, are allegations that claim negligence in decisions that were made using professional expertise. Because we conclude that Plaintiffs’ claims are governed by the provisions of the MMA, we affirm the judgment of the trial courts and remand for further proceedings consistent with this opinion.

ILB Note: Appellant was represented by Geoffrey Slaughter, now on the Supreme Court.

[Updated at 1:26 pm]
A reader has just sent the ILB a note beginning "oops...someone didn't check the docket when putting names at the top of the opinion" and pointing to a May 20, 2016 Order granting a motion: "Geoffrey G. Slaughter, counsel for Appellant, has filed a Motion for Leave to Withdraw Appearance."

In Jordan Jacobs v. State of Indiana , a 28-page opinion, 2-1 opinion, Judge Bradford writes:

On September 2, 2015, eighteen-year-old Appellant-Defendant Jordan Jacobs was arrested after he was found to be in possession of a handgun without having a license for said handgun. Appellee-Plaintiff the State of Indiana (“the State”) subsequently charged Jacobs with Class A misdemeanor carrying a handgun without a license. Following a bench trial, Jacobs was found guilty as charged. Jacobs challenges his conviction on appeal, arguing that the trial court abused its discretion in admitting the handgun into evidence at trial. We affirm. * * *

Jacobs contends that the trial court abused its discretion in admitting the handgun into evidence at trial because the handgun was recovered in violation of Jacob’s rights under the Fourth Amendment and Article I, Section 11. * * *

Having concluded that the handgun in question was not recovered in violation of either the Fourth Amendment or Article I, Section 11, we conclude that the trial court did not abuse its discretion in admitting the handgun into evidence. The judgment of the trial court is affirmed.

Altice, J., concurs.
Crone, J., dissents with opinion. [which begins, on p. 21] In reversing a criminal defendant’s conviction almost a century ago, the Indiana Supreme Court stated, “‘Refusal to receive evidence when illegally seized tends to discourage the practice and thereby protects the innocent as well as the guilty from obnoxious and disgraceful invasions of their right to privacy and retains the Fourth Amendment and similar state constitutional provisions unimpaired.’” Evans v. State, 198 Ind. 487, 490, 154 N.E. 280, 281 (1926) (quoting CORNELIUS ON SEARCH AND SEIZURE at 56). In this case, Jacobs is undeniably guilty of carrying a handgun without a license. But in holding that the police did not invade his right to privacy by ordering him to the ground and handcuffing him based on a tenuous suspicion of truancy, the majority has impaired the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution for innocent Hoosiers who wish to exercise their constitutional right to walk away from approaching officers who have no valid reason to detain them. See Gaddie v. State, 10 N.E.3d 1249, 1254 (Ind. 2014) (“A person approached by police ‘need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objective grounds for doing so ….’”) (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)).

NFP civil decisions today (2):

Kenneth A. Stocker v. Russel D. Sundholm, Ann M. Clark, David A. Vaughn, Travis M. Sims, and John C. Houston (mem. dec.)

In the Matter of D.C., C.C., and I.S., Children in Need of Services, S.P., Mother, and J.C., Father v. Ind. Dept. of Child Services, and Child Advocates, Inc. (mem. dec.)

NFP criminal decisions today (5):

Theodore T. Schwartz v. State of Indiana (mem. dec.)

Lisa M. Morehouse v. State of Indiana (mem. dec.)

Darrell A. Williams v. State of Indaina (mem. dec.)

Lorenzo Montes-Garnica v. State of Indiana (mem. dec.)

Shaquille Delaney v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, November 07, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending Nov. 4, 2016 [Updated]

Here is the Clerk's transfer list for the week ending Friday, Nov. 4, 2016. It is two pages (and 21 cases) long.

One transfer was granted last week:

[Updated at 11:21 am] The Court has now added another grant to the list:

Posted by Marcia Oddi on Monday, November 07, 2016
Posted to Indiana Transfer Lists

Law - "Janet Reno, First Female U.S. Attorney General, Dies At 78"

NPR's Nina Totenberg had a great tribute to Janet Reno on the Morning Edition today. Read/listen here.

Posted by Marcia Oddi on Monday, November 07, 2016
Posted to General Law Related

Ind. Law - "Should police take a DNA sample when making arrests?"

Following on the ILB post Nov. 3rd, headed " "Boone County prosecutor urges expansion of DNA testing to all felony arrestees"," Madeline Buckeley of the Indianapolis Star had a good story, posted late Nov. 4, asking "Should police take a DNA sample when making arrests?" Some quotes from the long story:

Ohio, unlike Indiana, routinely collects DNA samples from people arrested on felony charges, even if they are not convicted. * * *

Laws such as the one in Ohio have been criticized — and challenged in court — by some who consider them too intrusive. Opponents have raised a number of questions. Is it an invasion of privacy to collect DNA samples from people who are arrested but never charged? Could the information, once gathered, be used for purposes other than law enforcement? Are the risks to personal privacy worthwhile if it helps corral a violent criminal?

Though the U.S. Supreme Court in 2013 ruled in a 5-4 decision that taking DNA upon arrest is constitutional, legislation in Indiana has failed in the past. Most recently, a bill introduced earlier this year was not granted a committee hearing.

Still, the co-authors of that bill — state Reps. B. Patrick Bauer, a Democrat, and Greg Steuerwald, a Republican — plan to reintroduce the bill. They are backed by the Indiana Prosecuting Attorneys Council, which has already sent a letter to House Speaker Brian Bosma and Indiana Senate leader David Long asking for their support. * * *

More than half of states have laws that allow police to take DNA from a suspect upon arrest, though some states have restrictions, such as limiting it to certain felony arrests, or only allowing it when a judge finds probable cause for the arrest.

The issue has federal support, as well. In 2003, a 22-year-old woman was raped and murdered in New Mexico. Investigators collected DNA from under the fingernails of Katie Sepich, which resulted in the arrest of her killer three years later. Her family has spoken out across the country urging states to enact DNA laws.

The case led to a federal law named in Sepich's honor. Signed by President Barack Obama in 2013, the law allows the federal government to award grants to states to implement laws that allow for DNA collection for people upon arrest.

The passing of such laws led to a flurry of judicial challenges across the country. The American Civil Liberties Union has opposed enhanced DNA collection laws, arguing in court challenges that private genetic and medical information could be collected and used without people's consent.

The case that eventually wound its way to the U.S. Supreme Court — Maryland v. King — centered on Alonzo King, a Maryland man who was arrested in 2009 for threatening a group of people with a shotgun. The Maryland DNA Collection Act allowed police to take a DNA swab from King's cheek, and investigators subsequently connected him to a 2003 unsolved rape case.

After King was convicted of rape, the Maryland Court of Appeals struck down portions of the law, arguing that the DNA swab violated his constitutional rights that protected him from unreasonable search and seizure.

The U.S. Supreme Court, though, upheld the law, citing safeguards that prevent the DNA from being used maliciously. It compared it to court rulings that allowed drug tests in schools when the samples students gave were only used to look for drugs, not pregnancy, or other health issues. It also noted that a cheek swab is a minimally invasive procedure.

"The use of DNA for identification is no different than matching an arrestee's face to a wanted poster of a previously unidentified suspect, or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee's fingerprints to those recovered from a crime scene," read the majority opinion, written by Justice Anthony Kennedy.

Yet many citizens still balk at the thought of a widespread, government-maintained DNA database, particularly as a standard of felony arrest for collection would ensnare many more people than the current standard of conviction.

In Indiana, an early attempt in 2013 to pass a DNA collection law was stymied not only by concerns about privacy, but also by the cost of storing and preserving swabs from every person arrested across the state.

"The storage was cost-prohibitive," said Larry Landis, executive director of the Indiana Public Defender's Council. Landis noted that the council also voiced concerns over whether there was a path to expunge the DNA from the system if the case was dismissed, and if the technology allowed for the comparison of enough DNA markers to avoid false matches.

The most recent iteration of the House bill includes language about removing DNA if an arrest results in an acquittal, dropped charges or no charges within 30 days. It also proposes allocating $500,000 in funding semi-annually. A bill was also proposed in the Senate this year that limited DNA swabs to arrests for burglary, residential entry, a crime of violence or a sex offense.

See also these three ILB posts from August 2015, all under the heading "Bill to collect DNA of all arrestees to be considered by study committee."

Posted by Marcia Oddi on Monday, November 07, 2016
Posted to Indiana Law

Ind. Gov't. - "Hackers seize Madison County government servers, demand ransom"

Jim Scott reports for Fox59. Some quotes:

ANDERSON, IND. – Authorities in Madison County are working frantically to find their important files and documents after hackers broke into the system and stole critical information, according to Fox59. Now, the cyber criminals are demanding a large sum of money from the county or threaten to never return the files.

“They are calling this a very significant event and that means whoever is behind it absolutely knows what they are doing and it is going to be extremely difficult for us to gain access of our servers on our own,” said Madison County Sheriff Scott Mellinger.

Madison County police, firefighters, and officials access to their county server and are logging all calls for service by hand.

“We cannot query old information to bring up prior reports or prior court records. If we want to bring somebody’s record up for something in the future, let’s say for somebody that has been arrested or somebody who is even in jail then we cannot look up information that would help us at a hearing. On the sheriff’s office side, we cannot book people into jail using the computers. We are using pencil and paper like the old days,” said Sheriff Mellinger.

The hackers used a computer virus to block access to the files until someone pays a large sum of money to get them back.

“There are so many unknowns here because even the investigators that had a lot of experience in this area are telling us they have not dealt with this specific virus before,” said Sheriff Mellinger.

Although Anderson Police, the Madison County Jail, and the county court systems are locked out of accessing important documents officials do not believe that people’s personal or payment information is at risk. Also, the voting records and ballots are on a separate system and at this time were reportedly not affected by the hack. The Madison County 911 system is also running.

Posted by Marcia Oddi on Monday, November 07, 2016
Posted to Indiana Government

Ind. Gov't. - "Race for attorney general pits Elkhart County prosecutor against Lake County judge"

There have been a number of stories this year about the candidates for Attorney General.

This weekend, Zach Osowski of the Evansville Courier & Press has this long, worth-reading story about the northern Indiana opponents. The story goes beyond each candidate's biography and looks in depth at several issues, including the Keith Cooper pardon case:

A key difference between the two candidates recently emerged over the case of Keith Cooper. He is seeking exoneration from a robbery conviction after the witnesses who testified against him have recanted and the prosecutor who won the conviction has urged the governor to pardon him.

Cooper accepted a deal from Hill that allowed him to become a free man after 10 years in prison if he gave up his bid to challenge his conviction. But Cooper contends the conviction still hinders his opportunities for employment and general quality of life. For the past 7 years he has been seeking a pardon from the governor. In lieu of that, he has asked for a new trial.

Hill on Friday doubled down on the conviction in a case that has received statewide attention and more after Pence, who is Donald Trump's vice presidential running mate, said he would not consider a pardon until Cooper exhausts his remedies in court.

Hill is seeking to deny Cooper's recent request for a new trial.

"The conviction and sentence entered against said defendant were proper under Indiana law and the defendant's petition is completely without merit," reads a legal filing from Hill's office opposing Cooper's request for a new trial.

in a separate statement, Hill said: "Recent media reports have characterized Cooper's 1997 robbery conviction as a 'wrongful conviction' and suggest that Cooper is 'innocent' and/or has been 'exonerated,' Cooper is certainly free to proclaim his innocence. However, to date, there has been no judicial determination that he is 'innocent' or 'exonerated' regarding his 1997 conviction."

Arredondo responded with a statement of his own, saying Hill has not fulfilled his duties regarding Cooper's case.

"No innocent person should spend even a day in prison, let alone 10 years," the statement reads. "I am constrained, however, from commenting on the case because, as attorney general, I may become involved in it. My opponent has a duty, as the Elkhart County prosecutor, to see that justice is done. So far, he has failed in that pursuit."

Posted by Marcia Oddi on Monday, November 07, 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 11/7/16):

Next week's oral arguments before the Supreme Court (week of 11/14/16):

Webcasts of Supreme Court oral arguments are available here.




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

Next week's oral arguments before the Court of Appeals (week of 11/14/16):

Thursday, November 17

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, November 07, 2016
Posted to Upcoming Oral Arguments

Sunday, November 06, 2016

Ind. Gov't. - More on "Illiana continues on slow road through courts"

Updating this ILB post from Nov. 4th, this story from the same day by Zak Koeske of the Chicago Tribune has a somewhat different take. It is headed "Environmental groups happy with judge's ruling on Illiana Tollway project." Some quotes:

Environmental groups that oppose construction of the Illiana Tollway are celebrating a second federal court judge's ruling that the Federal Highway Administration's 2014 approval of the bi-state project was invalid.

U.S. District Court Judge Charles Norgle found Tuesday that portions of the project's proposal that relied on its already legally invalidated foundation also were invalid.

The environmental plaintiffs — Openlands, Midewin Heritage Association and Sierra Club Illinois — had challenged both the Tier 1 and Tier 2 environmental impact statements and the federal government's "records of decision" greenlighting the 47-mile highway project through Will County. * * *

"The federal district court has now twice ruled in favor of the environmental plaintiffs that the Tier 1 and the Tier 2 Environmental Impact Statements are legally invalid," said Howard Learner, executive director of the Environmental Law & Policy Center, which challenged the tollway project in court on behalf of the environmental plaintiffs.

"Enough is enough. It's time for [the Illinois Department of Transportation and the Indiana Department of Transportation] to stop wasting public officials' time and taxpayers' money and bring this to an end."

Shortly after taking office in January 2015, Gov. Bruce Rauner suspended planning and development of the $1.3-billion Illiana project, which aims to connect Interstate 55 near Wilmington with Interstate 65 near Lowell, Ind, as a truckers' alternative to Interstate 80.

While the project remains on hold in Illinois, Indiana is set on seeing it through.

In April, INDOT agreed to fund a new environmental impact statement to comply with the court order in an attempt to keep the controversial project alive. * * *

For Learner, the best path would be to drop the project entirely rather than redraft the environmental impact statements to comply with federal environmental law.

"If they do their job right," he said," it would likely show that the tollway is not economically justified or environmentally sensible.

"The better approach would be to stop wasting taxpayers' money and time and bring the boondoggle to its well-deserved end."

Posted by Marcia Oddi on Sunday, November 06, 2016
Posted to Indiana Government

Friday, November 04, 2016

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

For publication opinions today (1):

In Mickel Thacker v. State of Indiana , a 7-page opinion, Judge May writes:

Mickel Thacker challenges the sufficiency of evidence supporting his conviction of Level 6 felony auto theft and Class A misdemeanor resisting law enforcement. We affirm. * * *

Officer Helton told Thacker and his acquaintance to stop. (Id. at 40.) Officer Helton demonstrated in court how loud he yelled “Stop police [sic],” (id. at 49), at the two men exiting the stolen vehicle. This was sufficient evidence from which the factfinder could conclude Thacker knowingly fled from Officer Helton after Officer Helton ordered Thacker to stop. See Fowler v. State, 878 N.E.2d 889, 895 (Ind. Ct. App. 2008) (resisting law enforcement conviction upheld when visible and audible orders to not flee were ignored by defendant).

As the evidence was sufficient to prove Thacker knowingly or intentionally exerted unauthorized control over a stolen vehicle and resisted law enforcement, we affirm.

NFP civil decisions today (5):

Mt. Vernon Fire Insurance Co. v. Louis Jancetic (mem. dec.)

In the Matter of: N.S. (Minor Child), Child in Need of Services, and C.S. (Father) v. The Indiana Department of Child Services (mem. dec.)

In the Matter of: J.D., a Child in Need of Services, B.D. (Mother) and W.D. (Father) v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.)

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

City of Terre Haute v. Bass Enterprises, LLC, and VCA, LLC (mem. dec.)

NFP criminal decisions today (4):

Antonio West v. State of Indiana (mem. dec.)

Bryan N. Myers v. State of Indiana (mem. dec.)

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

Jody Michael Brooks v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, November 04, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Comments sought on draft report of Advisory Task Force on Remote Access to and Privacy of Electronic Court Records

The ILB has been following this group since Feb. 4th, using the heading "Will the public have online access to e-filed documents - appellate briefs, trial court orders, complaints, etc." Here is a list of post-Feb. 4th ILB entries.

Here is the comprehensive Task Force webpage. This morning the following was released:

Input sought on online availability of court records

An Indiana Supreme Court advisory group is seeking feedback regarding Internet access to court records. The 21-member Advisory Task Force on Remote Access to and Privacy of Electronic Court Records is responsible for studying best practices and policies on Internet access to court records.

The group met in six public meetings over the past year and compiled a report recommending certain trial and appellate court documents be available online free of charge. Comments on the recommendations will be accepted until December 1, 2016. * * *

Once comments are submitted to the Court, it will review the responses and decide whether to adopt the Task Force’s recommendations. The Task Force was created in 2016. It is made up of attorneys, judges, clerks, and others. Earlier this year it recommended appellate briefs and motions be available online. The Supreme Court considered the recommendations and made the documents available online to the public for free.

Here is direct access to the draft report.

Appellate documents. A brief review of the draft report by the ILB
indicates that online public access to appellate briefs, petitions for transfer, and the like, immediately upon filing, has already been implemented. The ILB believes that this has been a great step forward for the court, and for the public.

Trial documents.
See p. 13 of the draft report, where online public access to most civil orders and criminal final orders is discussed... Public online access to trial pleadings and filings in all case types (except expungement cases) is not under consideration by the task force at this time. In short, if the ILB reads this correctly, there will be no online public access to complaints in, for example, civil cases, in the foreseeable future, although it is possible that at some point the trial court orders will be online. (Note, however, that these are all public documents, and will remain available to the public at the courthouse, and nothing prevents, for example, the ILB, from posting any of these documents, so long as they are not confidential.)

Posted by Marcia Oddi on Friday, November 04, 2016
Posted to Indiana Courts

Ind. Gov't. - "Illiana continues on slow road through courts"

Supplementing yesterday afternoon's ILB post, Andrew Steele of the NWI Times reports this morning:

The Illiana Expressway’s lingering presence continued this week with a court ruling affirming that federal approval of the project was based on a flawed and invalid environmental study.

But the decision by Judge Charles Norgle of the U.S. District Court of Northern Illinois leaves open the opportunity for the Indiana and Illinois departments of transportation to revise their environmental studies and continue pursuing the project.

The lawsuit was brought by the environmental groups Openlands, Midewin Heritage Association and Sierra Club. They asked the court to declare the Federal Highway Administration’s approval of the Illiana project’s Tier 2 environmental impact statement to be in violation of federal law. Approval of the Tier 2 EIS is the final step allowing a project to move forward.

But Norgle dismissed the case as moot, because the Tier 2 study was based on a Tier 1 study a federal court found to be flawed last year.

In that separate Tier 1 case, Judge Jorge Alonso ruled that the environmental assessment did not adequately consider the implications of not building the Illiana. Such a “no build” alternative is required by the National Environmental Protection Act.

And because the Tier 2 study “relied upon the invalid Tier 1 approvals,” Norgle wrote in his ruling this week, the plaintiffs’ success in the Tier 1 case “moots this (Tier 2 ) case.”

The story, which links to both the Tier 1 and Tier 2 EIS decisions, concludes:
[T]he Environmental Law & Policy Center, which represents the three plaintiffs, claim the ruling should end the Illiana project “once and for all.”

In a press release, the ELPC noted that Norgle’s ruling states that the Tier 2 EIS is “no longer effective.”

“Federal judges have now twice found the federal and state transportation agencies’ environmental reviews of the proposed Illiana Tollway to be invalid and illegal,” said Howard Learner, the lead attorney and executive director of the ELPC.

Posted by Marcia Oddi on Friday, November 04, 2016
Posted to Indiana Government

Thursday, November 03, 2016

Ind. Gov't. - "Illiana Corridor whacked again in federal court"

On Oct. 10th, the ILB quoted aNWI Times story that began:

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.
But today Greg Hinz of Crain's Chicago Business writes:
A federal judge has stuck another knife into the just barely alive proposed Illiana Corridor.

In a decision released Nov. 1, U.S. District Court Judge Charles Norgle used terms such as "invalid" and "no longer effective" to describe a Tier 2 environmental impact statement prepared on behalf of the project by the Illinois Department of Transportation and its Indiana counterpart.

IDOT had hoped to forestall a ruling. But Norgle held the EIS no longer is valid because of prior court action, so there is no controversy to consider. * * *

The ruling means IDOT and the Indiana agency "must start over their environmental reviews from the beginning based on much more realistic data and do it right without impermissible shortcuts," he said. That will take time and money, and if done right, "would very likely show that the proposed costly Illiana toll way is not economically justified and is not environmentally sensible."

The Crain's story includes the 4-page order in Openlands v. USDOT.

Posted by Marcia Oddi on Thursday, November 03, 2016
Posted to Indiana Government

Ind. Courts - Order Amending Indiana Rules for Admission to the Bar and the Discipline of Attorneys

The Supreme Court has adopted a completely rewritten, 65-page Rule 23 - Disciplinary Commission and Proceedings. It was filed today, Nov. 3rd, 2016, and takes effect Jan. 1, 2017.

For background, see this court page on the proposed amendments, and particularly this 5-page executive summary and this 108-page side-by-side comparison.

Posted by Marcia Oddi on Thursday, November 03, 2016
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 2 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (1):

Momar, Inc. v. Watcon, Inc. (mem. dec.)

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on Thursday, November 03, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Boone County prosecutor urges expansion of DNA testing to all felony arrestees"

Rod Rose, Lebanon Reporter Assistant Managing Editor, writes today (here via Ind. Econ. Digest) - some quotes:

DNA collected from Damione Wilcoxson following his arrest in Ohio for robbery directly contributed to his capture Monday for the murder of a Zionsville man.

Wilcoxson’s DNA was collected because since 2010, Ohio has been collecting DNA samples. Indiana requires that people convicted of a felony — but not those arrested — provide a DNA sample.

Now, Prosecutor Todd Meyer wants DNA collect requirements expanded to include people who have been arrested, but not yet convicted.

About half the states (23) require that DNA be collected from convicted felons, according to the Justice Department.

Indiana is one of those, Meyer said. It’s already solved one case in Boone County, he said. * * *

Indiana’s requirement that DNA samples be taken from convicted felons is recent, Meyer said.

He and other prosecutors want the sampling requirement extended to people who have been arrested, but not yet convicted, much as they are fingerprinted.

“I can think of no really good reason why a state wouldn’t want to have a law like this on the books,” Meyer said.

State Senator Jim Merritt, R-Indianapolis, told WTHR-TV that he would introduce such a bill when the General Assembly convenes next year.

“I think it’s time,” Merritt told the TV station. “We’re taking a fingerprint. We’re taking photographs. DNA should be next on felony arrests.

Court fees could cover the collection costs, Meyer said.

“The obstacles would be cost,” Meyer said. Legislation has been presented in the past that would impose sampling-at-arrest DNA collection, he said. Similar legislation will be submitted again, he said, although it likely will be limited to people arrested for felony crimes.

“I think,” Meyer said, “that’s probably because of the cost of doing it to everyone who is arrested.”

The Office of Justice Programs at the National Institute of Justice in June 2012 estimated that collecting DNA swabs would cost $4 to $6 per person, with analysis of the DNA itself costing between $20 and $40 per sample. * * *

Louisiana began collecting DNA from arrestees in 1997, according to the NIJ. Four other states passed similar laws. In 2005 Congress passed a law requiring that effective Jan. 1, 2009, DNA be taken from any person arrested for a federal crime.

Of the 28 states permitting DNA collection from people under arrest, 13 require it for any felony. The other 15 collect DNA only for violent crimes.

Some of those laws have been overturned in court challenges; others remain on the books, the NIJ said.

Posted by Marcia Oddi on Thursday, November 03, 2016
Posted to Indiana Government

Ind. Courts - "Does conservatives' case against RFRA fix belong in court?"

Updating this ILB post from Monday, re Hamilton Co. judge to hear conservatives' lawsuit challenging RFRA fix, several Indiana papers have lengthy reports today on the challenge. Nink Kelly of the Fort Wayne Journal Gazette has this story - some quotes:

NOBLESVILLE – Two faith-based groups argued Wednesday in a Hamilton County courtroom that anti-discrimination ordinances in four cities “chill” their activities and could “destroy their organization.”

But lawyers for the cities say the groups aren’t even governed by the regulations, which protect the rights of LGBT Hoosiers and haven’t been affected or harmed in any way.

If a judge agrees, that would kill the lawsuit, whose aim is to undo a revision that state legislators passed in 2015 that tempered the Religious Freedom Restoration Act.

“The plaintiffs are trying to find a way so hard to get into court,” said Pam Schneeman, who argued on behalf of the city of Indianapolis.

Alex Whitted, lawyer for the city of Columbus, said he has never had a case where someone is “contorting themselves” to be covered by a law while the city is saying they are not.

Two of the four ordinances – Indianapolis and Bloomington – have been on the books for years, while Columbus and Carmel added theirs more recently. Fort Wayne also has a human rights ordinance but wasn’t named in the suit.

But all such local ordinances could be invalidated if widely known Republican attorney Jim Bopp wins the case.

“It is no comfort to the plaintiffs that counsel tells us not to worry,” Bopp said. “That is not legally binding.”

He added that the groups should not have to wait until they have been threatened with an enforcement action to challenge the ordinances.

Hamilton Superior Court Judge Steve Nation will rule in the coming weeks. * * *

Attorneys for the four cities agreed that the case shouldn’t even proceed to a discussion of whether the RFRA revision or the ordinances are constitutional. That’s because the nonprofit organizations that are suing are political advocacy interest groups, which is not the same as, for example, an ice cream parlor offering goods and services.

Also, the groups don’t have at least six employees, which is required for the employment provisions to apply.

Megan Banta's story in the $$$ Bloomington Herald-Times begins with a big photo of Jim Bopp, captioned "Jim Bopp, a conservative attorney from Terre Haute, is representing groups in arguing that their religious convictions should outweigh local LGBT rights protections." Some quotes:
Bloomington and the other cities are arguing that the conservative groups have neither a ripe claim nor the standing needed to bring the case against the human rights ordinances.

Thomas Cameron, an assistant city attorney for Bloomington, said the plaintiffs’ legal complaint is based only on abstract possibilities.

The groups argue in a pre-enforcement challenge that the city’s ordinance is preventing them from offering programs in Bloomington because they would exclude people who don’t share their beliefs about traditional marriage.

But although the groups all were founded in 2005 or earlier, none of them ever has held an event in Bloomington, Cameron said. The groups merely state in legal briefs that they intend to.

Cameron added that while the groups claim their events and programs would run afoul of the city’s ordinance, there are several steps necessary for the city’s human rights commission to be able to determine there has been a violation and potentially level consequences.

First, the groups would have to hold an event in Bloomington, which they only have asserted they would do.

Then, they would have to make the event open to the general public.

Cameron said at least one of the events the groups reference in legal briefs, the Hoosier Leadership series, is not open to the general public and therefore would not fall under the public accommodations portion of the ordinance, as the groups claim.

“Hoosier Leadership series is not an ice cream parlor,” he said. “It’s not something anyone can go to. It’s not something anyone can attend.”

Even if the groups were to hold the event, they would then have to actually turn someone away or exclude someone based on one of the protected classes in the ordinance, which does not include people with particular views on marriage, Cameron said. That person then would have to file a complaint.

That means the plaintiffs’ argument for standing requires the court to “make a series of presumptions and assumptions,” he said.

Cameron further argued that while the groups claim the ordinance has chilled the free practice of their beliefs, that chill is subjective because there is no threat of prosecution, the law is not aimed at the groups and there is no history of enforcement.

Attorneys for the other cities named in the suit argued largely along those same lines, all citing “ripeness” and “standing” in their request for Superior Court Judge Steven Nation to dismiss the case.

“They’re based on speculations and abstract possibilities,” said Pam Schneeman, an attorney in the Indianapolis corporation counsel’s office. “This is too many ifs to afford ripeness and standing.”

Stephanie Wang reports this morning for the Indianapolis Star in a story that begins:
Attorneys for four Indiana cities argued Wednesday that two conservative groups should not be allowed to challenge civil rights protections based on "hypothetical controversies," noting some city protections for lesbian, gay, bisexual and transgender Hoosiers have been in effect for nearly a decade without being challenged.

Lawyers for two prominent conservative groups countered by saying that LGBT protections encroach on the religious freedom of evangelical Christians, but that they have declined for years to challenge the laws because of a chilling effect those laws have on them.

"We don't want people hiding in wait for us when we go to argue our faith-based principles," Terre Haute attorney Jim Bopp said of the conservative groups. "... Nobody wants to be confronted by the government under the penalties of potential fines."

The lawsuit — filed in Hamilton Superior Court by the Indiana Family Institute and the American Family Association of Indiana — represents a politically significant attempt to invalidate local nondiscrimination ordinances that include sexual orientation and gender identity as protected classes.

LGBT advocates are pushing to pass local measures after failing to win inclusion of LGBT rights in state civil rights law earlier this year. At least 18 municipalities across the state protect gays and lesbians against discrimination in housing, employment and public accommodations, with some also extending those protections to transgender people.

The lawsuit is also an effort to bring back the original Religious Freedom Restoration Act, without the "fix" that prevents the law from being used to discriminate against LGBT people.

The two groups are asking for the RFRA "fix" to be deemed unconstitutional, because they say it dismisses their beliefs on Biblical marriage and sexuality while defending religious liberty for other faiths.

In question Wednesday, however, wasn't RFRA or the validity of its "fix." It wasn't even about whether conservatives had a good argument to make for guarding religious freedom, or the cities for protecting minority groups. It was whether the case even belonged in court at all.

The cities of Indianapolis, Carmel, Bloomington and Columbus argued that the conservative groups had no standing to sue and could not demonstrate real or imminent harm. And they said the groups, each founded more than 20 years ago, have never before contested the 8-year-old Indianapolis ordinance or the even longer-standing Bloomington ordinance.

Posted by Marcia Oddi on Thursday, November 03, 2016
Posted to Indiana Courts | Indiana Government | Indiana Law

Wednesday, November 02, 2016

Ind. Courts - "Clark County courts most overworked in state, recent assessment says"

That is the heading to a long, long story by Elizabeth DePompei, Clark County News and Tribune, here reposted in full by the Indiana Economic Digest. Here is just a sample:

Of the 43 counties that need more judicial officers, Clark County ranks number one. That ranking is based on the number of cases filed, the type of cases filed and the current resources available to handle them. Clark County's seven judicial officers — which includes four elected judges and three appointed magistrates — are handling on average of around 45 percent more than they should be. To bring that number down, the county would need three more judicial officers.

PIECES OF THE PUZZLE

Clark County Circuit Court No. 4 Judge Vicki Carmichael said the county has needed more judicial officers for at least the past 10 years. The court has slowly added magistrates over the years, including one in 2015. Each new judicial officer has to be approved by the Indiana Legislature, the source of funding for judge and magistrate salaries. Carmichael said she has requested one more for next year and expects it will be approved.

Carmichael said that while the number of overall criminal cases might drop over the years, it's the type of cases a court has at any given time that may demand more judicial officers. Clark County has about four ongoing murder cases and continues to see an increase in children in need of services, or CHINS, cases involving abused or neglected children. Murder and CHINS cases tend to be more intricate and take more time, Carmichael said. Some courts, like Circuit Courts 2 and 3, don't handle those particularly time-consuming cases, but the volume of cases is such that it's "just too much" for one or two judicial officers to handle.

And it's not just the judges who feel the burden. Carmichael said the courts need more county-funded support staff. And then there's the shortage of public defenders and prosecutors and even space to contain the growth.

Clark County Prosecutor Jeremy Mull said his office is "vastly understaffed" and "underpaid." He's constantly working to get more funding to pay the staff he has (the state only pays for his salary and his chief deputy prosecutor). Even as the courts increase the number of judicial officers, Mull's resources remain the same. Mull said he can direct his deputy prosecutors on how to handle cases, including objecting when the defense asks for a hearing or trial to be continued. But, he added, the prosecutor's office is only one piece of a large puzzle.

Posted by Marcia Oddi on Wednesday, November 02, 2016
Posted to Indiana Courts

Ind. Courts - "Longtime officeholders running for Floyd Circuit Court judge"

Supplementing this ILB post from this morning, Elizabeth DePompei reports today in the Floyd Co. News & Tribune in a long story - some quotes:

FLOYD COUNTY — Voters will decide between two longtime public servants for Floyd County Circuit Court judge next week.

Circuit Court Judge Terrence Cody, a Democrat, has served the court for 18 years, a record of experience he says makes him the best candidate for the job. Floyd County Prosecutor Keith Henderson has 14 years of experience in the courtroom, and he says it's time for someone new on the bench.

Cody said Circuit Court handles 25 percent of the county's felony cases, plus civil cases and Children in Need of Services cases, or CHINS. He wants to continue serving the court, saying it would bring continuity to the kind of cases he's presided over for so long. * * *

Making the court more efficient is one of Henderson's top goals if elected. He doesn't think there's an "inordinate" amount of CHINS cases overloading the court, but thinks inefficiency is creating more work. He's particularly interested in reforming the juvenile court system.

"I think we need more accountability from the juvenile criminal offenders and we need to have accountability by their parents," Henderson said. "I think too many times we’ve allowed them, especially our more serious juvenile offenders who have committed crimes in our community, not be held accountable and certainly I think we’ve, that the court has done a poor job in holding the parents accountable."

Henderson said felony crime has been reduced by 40 percent during his time in the prosecutor's office, and he hopes to bring the same kind of change to Circuit Court. He would also like to see a "marshaling" of community resources for parents and juveniles, which could include life skills education and vocational training for youth.

Henderson has two years left in his current term as prosecutor and said it would be bittersweet to leave the office, which he was first elected to in 2002. He wont' say who he might recommend to fill his shoes if it comes to that, but he hopes he's helped set up a strong framework to keep the office running as well or better than he says it has been. Henderson also noted his part in creating the Floyd County Combined Accident Reconstruction Team and helping set up the Child Advocacy Center in New Albany.

As for the ongoing Indiana Supreme Court Disciplinary Commission case involving Henderson, he said he's confident the case is finished. * * *

A hearing officer recommended a public reprimand of Henderson in August. The Indiana Supreme Court will review the hearing officer's findings and issue a final decision. Henderson said he disagrees with the officer's findings and doesn't want disciplinary action to set a bad precedent for prosecutors.

"I believe that a prosecutor should be able to tell a story, whether it’s in a book or to CBS '48 Hours' or to '20/20' or to you, once the case is on appeal. Because Indiana law says that the Indiana attorney general has exclusive jurisdiction on appeals, not the prosecutor," Henderson said.

Posted by Marcia Oddi on Wednesday, November 02, 2016
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 2 NFP memorandum decision(s))

For publication opinions today (3):

In David McCollough v. Noblesville Schools and Jeff Bryant , a 25-page opinion, Judge Altice writes:

David McCollough filed a complaint against Noblesville Schools and Jeff Bryant, Principal of Noblesville High School (Bryant) (collectively, the Defendants) in which he asserted claims for defamation, intentional infliction of emotional distress, negligence, breach of contract, and tortious interference with a contract/business relationship. McCollough also claimed that his due process rights were violated. The Defendants filed a motion for summary judgment. The trial court held a hearing and thereafter denied summary judgment as to McCollough’s defamation claim, but granted summary judgment in favor of the Defendants on all remaining claims. In this interlocutory appeal, McCollough challenges the grant of summary judgment while the Defendants cross-appeal the denial of summary judgment with regard to the defamation claim. * * *

In summary, we conclude that the trial court properly granted summary judgment in favor of the Defendants on McCollough’s claims for IIED, breach of contract, tortious interference with a business relationship/contract, and negligence. We also conclude that the trial court properly denied the Defendants’ motion for summary judgment with respect to McCollough’s defamation claim.

In Ron Shoemaker v. Indiana State Police Department , a 15-page opinion, Judge Altice writes:
Ronald Shoemaker, a law enforcement officer with the Indiana State Police Department (ISP) for well over twenty years, was demoted in rank and pay in 2013 shortly after a new Superintendent of ISP was appointed. Shoemaker believes that the demotion was the result of a whistleblower report he filed with his supervisor about four years earlier. Pursuant to Ind. Code § 4-15-10-4, the Whistleblower Law (the WBL), Shoemaker initiated an administrative appeal of his demotion. After his action was dismissed by the administrative law judge (the ALJ) for being untimely filed, Shoemaker did not pursue judicial review of the administrative decision. He filed the instant breach of contract action instead. ISP sought summary judgment on the ground that Shoemaker failed to exhaust his administrative remedies and could not bring an action for breach of contract under the WBL. The trial court granted ISP’s motion for summary judgment, and Shoemaker appeals. * * *

We hold that a state employee seeking redress for an employment action allegedly taken in retaliation for whistleblowing activity must proceed with, and only with, the remedy expressly provided in the WBL.6 Shoemaker began his administrative appeal with the SEAC but did not seek judicial review of the ALJ’s determination that the administrative appeal was untimely filed. Accordingly, the trial court properly granted ISP’s motion for summary judgment in this separate breach of contract action filed by Shoemaker.

In James L. McGraw v. State of Indiana , a 7-page opinion, Judge Bradford writes:
On September 9, 2015, Appellee-Plaintiff the State the Indiana (“the State”) charged McGraw with two counts of Level 5 felony battery resulting in bodily injury to a pregnant woman and one count of Class A misdemeanor domestic battery. Eventually, the case proceeded to a bench trial, during which the trial court found Lance to be an unavailable witness and struck her testimony. Following conclusion of the State’s case-in-chief, McGraw moved for dismissal of the charges pursuant to Indiana Trial Rule 41(B) (“Trial Rule 41(B)”). The trial court granted McGraw’s motion, allowed the State to proceed on the lesser-included offense of Class A misdemeanor battery, and found McGraw guilty of this lesser-included offense. The trial court then sentenced McGraw to a term of 365 days, with sixty-five of those days suspended.

On appeal, McGraw contends that because the trial court’s sentencing order reflects that the original charges were dismissed, but does not designate that the dismissal of the charges constituted an adjudication of the charges on the merits, the sentencing order must be amended to clearly reflect as such. The State argues that no amendment to the sentencing order is necessary. Concluding that no correction to the sentencing order is necessary, we affirm. * * *

Again, Indiana Trial Rule 41(B) clearly states that unless the trial court’s order specifies otherwise, a dismissal under Trial Rule 41(B) “operates as an adjudication upon the merits.” In this case, the trial court’s order does not specify otherwise. As Court of Appeals of Indiana | Opinion 49A02-1603-CR-566 | November 2, 2016 Page 7 of 7 such, we conclude that there is no need to remand the case to correct the sentencing order.

NFP civil decisions today (1):

In the Matter of the Termination of the Parent-Child Relationship of B.S. (Child) and K.S. (Mother); K.S. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (1):

Ann Casildo v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, November 02, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - 7th Circuit Confirms: Title VII Does Not Apply to Sexual Orientation Claims

From The National Law Review, this article by Debra Stegall. A few quotes:

In Kimberly Hively v. Ivy Tech Community College, the U. S. Court of Appeals for the Seventh Circuit decided whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation. On July 28, 2016, the court held Hively failed to state a claim for sex discrimination under Title VII based solely on her sexual orientation, affirming the prior decision by the U.S. District Court for the Northern District of Indiana, South Bend Division. * * *

Hively petitioned the U. S. Court of Appeal for the Seventh Circuit for a hearing before all of the Seventh Circuit Judges. The en banc hearing was granted on October 11, 2016. En Banc Argument is scheduled for November 30, 2016. The EEOC was granted leave to participate in the oral argument, but must use some of Ms. Hively’s allotted time to do so.

Here is a list of ILB posts on Hively.

Posted by Marcia Oddi on Wednesday, November 02, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Prosecutor Keith Henderson running for Floyd Circuit Judge, while awaiting Supreme Court decision on disciplinary charges [Corrected]

Updating a long list of ILB posts on longtime Floyd Prosecutor Keith Henderson, who currently is running for circuit court judge AND awaiting a decision from the Supreme Court in a disciplinary case, Madeline Winer of the Louisville Courier-Journal had this long story late yesterday. Some quotes:

Voters in Floyd County will decide between two well-known political names for circuit court judge next Tuesday: Longtime incumbent J. Terrance Cody and longtime Prosecutor Keith Henderson.

But questions cloud the race, including whether Henderson could sit on the bench if he is suspended from practicing law because of an ethics case involving actions related to the David Camm murder case. * * *

At the beginning of August, David Pippen, a hearing officer from Indiana's Disciplinary Commission recommended to the Indiana Supreme Court that Henderson be reprimanded for his actions in the Camm case.

He wrote Henderson violated ethics rules by pursuing a deal to write a book about the case between the second and third trials, court records say. But in October, a disciplinary commission attorney said Henderson should face suspension.

ILB: More precisely, Pippen was appointed by the Supreme Court to serve as its hearing officer in this case, and the suspension recommendation came from the Indiana Disciplinary Commission Commission on Judicial Qualifications. More from the story:
Henderson, who maintains he did not violate state ethics rules because the book deal was canceled, said voters should focus on his record as prosecutor.

“This campaign isn’t about this so-called ethics issue that’s being reviewed by the court,” said Henderson, a Republican. “It’s standard procedure. This is about how issues will be resolved" by the winner of the judge's race.

According to Indiana law, judges have to be admitted to practice law in the state.

But Charles Gardner Geyh, a law professor at Indiana University, said suspension of a law license would not necessarily disqualify a judge or lawyer from service, since they would retain a license under suspension. [ILB: !] But he said that if elected judge, Henderson would be subject to rules under the Indiana Code of Judicial Conduct. * * *

Cody, Henderson's Democratic opponent, has adopted the slogan “integrity matters” and said he does not have any ethics violations against him. If he did, he said he would not run for re-election. * * *

“My record speaks for itself,” he said of his 18 years in office.

Henderson, who has been re-elected as prosecutor three times, ​said he feels the judge's office needs reform, including its handling of juvenile crime.

“We have an ineffective system in that circuit court and that needs to change,” he said. “We have to hold juveniles more accountable because that’s the biggest increase in crime in Floyd County right now.”

ILB: The story also includes a quote from another attorney, who opined that "oral arguments before the court would begin in the spring, with an opinion issued by the court due in the summer." However, to my knowledge the Supreme Court does not hold oral arguments in disciplinary cases, it appoints a hearing officer, as has been the case here, and then the justices weigh the record and the recommendations of its Commission. Often, a proposed settlement is presented to the Court, which it may revise.

Posted by Marcia Oddi on Wednesday, November 02, 2016
Posted to Indiana Courts

Tuesday, November 01, 2016

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

In USA v. Deandre Armour (SD Ind., Barker), a 15-page opinion, Judge Hamilton writes:

This appeal stems from an at tempted bank robbery. It presents issues concerning the de fendant’s sentence and the defini tion of a “crime of violence” in 18 U.S.C. § 924(c), which provides extra punishment for use of a firearm in committing a crim e of violence. We affirm the district court’s judgment for the most part, but we must re mand for re-sentencing on one count of conviction because the court imposed a mandatory minimum sentence under § 924(c) without a jury finding on the key fact. * * *

To sum up then, we AFFIRM the defendant’s conviction for violation of §924(c) but VACATE the sentence on that count and remand for re-sentencing on that count consistent with this opinion. We also AFFIRM the district court’s decision to sentence defendant as a career offender under the Sentencing Guidelines.

Posted by Marcia Oddi on Tuesday, November 01, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Judge to hear conservatives' lawsuit challenging RFRA fix" [Updated]

Tomorrow, Wednesday, Hamilton County Superior Judge Steven R. Nation, will hold a hearing on a lawsuit "challenging local ordinances [in Indy and Carmel] that protect lesbian, gay, bisexual and transgender people from discrimination." The hearing will take place in Hamilton County Superior Court No. 1, 1 Hamilton Square in Noblesville, Room 345.

For background, see Stephanie Wang's Indy Star story from August 15th.

[Updated]
For more from the ILB, start with this post from August 18, 2016. Note especially the discussion of the failure of the Attorney General to intervene in this case which concerns the constitutionality of an Indiana statute.

Posted by Marcia Oddi on Tuesday, November 01, 2016
Posted to Indiana Courts | Indiana Government

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 2 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (2):

Damon Hohman v. State of Indiana (mem. dec.)

Holly A. Jen v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, November 01, 2016
Posted to Ind. App.Ct. Decisions

Courts - Slate's Amicus podcast with Dahlia Lithwick

One of the ILB's favorite podcasts is "Amicus", Dahlia Lithwick's coverage of the SCOTUS for Slate. This week's episode, #52, concerns challenges to punitive voting restrictions. You can listen here.

Posted by Marcia Oddi on Tuesday, November 01, 2016
Posted to Courts in general

Ind. Courts - "State appeals $31M verdict in DCS case"

Updating this ILB post from Oct. 1, Marisa Kwiatkowski reports today in the Indianapolis Star:

Last year, a federal court jury in Hammond determined that three DCS employees, an Indiana State Police detective and a doctor had violated the constitutional rights of Roman and Lynnette Finnegan and their children. The jury found those officials had sabotaged investigations into the girl's death and retaliated against the couple for complaining about how they were treated.

On Friday, the Indiana attorney general's office asked the Seventh Circuit Court of Appeals to review several decisions made in the case, including jury's verdict and the federal judge's denial of motions for summary judgment and to reduce the amount awarded by the jury.

In a document filed Nov. 6, state officials had argued that the $31 million judgment was "monstrously excessive, without a rational connection to the evidence." The Indiana attorney general's office, which represents the state in the lawsuit, also argued that the jury award was significantly higher than amounts awarded in comparable cases.

U.S. District Judge Rudy Lozano denied the state's motion, saying the amount awarded by the jury was "rationally connected to the evidence presented."

The Star story itself links to all the documents mentioned. So far, only a Notice of Appeal has been filed with the 7th Circuit.

Posted by Marcia Oddi on Tuesday, November 01, 2016
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - "ACLU Challenges Bedford Sign Ordinance Limiting Political Expression"

From a news release yesterday:

Indianapolis -- The American Civil Liberties Union of Indiana today filed a lawsuit on behalf of a Bedford, Ind. resident who is challenging a newly enacted city ordinance regulating yard signs that has the effect of stifling his political expression. The lawsuit claims that the ordinance violates the First and the Fourteenth Amendments to the U.S. Constitution.

The ACLU of Indiana filed the case against the City of Bedford on behalf of Samuel Shaw, who is seeking to stop the city from enforcing City Ordinance 15-2016, which was enacted in September.

Shaw had placed several signs in his yard that express his opinions about political candidates and topical issues. But last month, after receiving a letter from the city's planning and zoning director informing him that he was in violation of the ordinance and that the "penalty for sign violations is $300 per day," he removed the signs from his property.

The City's ordinance has several provisions that the lawsuit alleges violate the Constitution, including:
  • a provision prohibiting permanent non-governmental signs on residential properties and imposing an unconstitutionally vague and content-based definition of what constitutes a "temporary" sign;
  • a content-based provision imposing temporal and quantity restrictions that depend on whether the sign is advertising a special event, an open house, or the sale or rental of a property;
  • a nonconformity provision that incorporates content-based restrictions from a prior ordinance that are unconstitutional; and
  • a provision that limits the number of signs with an unregulated message to one outdoor sign, and one small sign in a resident's window.
"The Supreme Court recently held that the kind of regulations that the City of Bedford has instituted violate the First Amendment of the Constitution," said Jan Mensz, ACLU of Indiana staff attorney. "The Ordinance's limitation of one general use sign on a resident's lawn is a particularly oppressive during election time when citizens wish to voice their support and opposition for multiple candidates and political issues."

The case, Samuel Shaw v. City of Bedford, Indiana, Case No. 4:16-cv-00190-SEB-TAB was filed in the U.S. District Court, Southern District of Indiana, New Albany Division on Oct. 31, 2016.
Here is a copy of the 10-page complaint. From pp. 5-6:
20. On June 18, 2015, the U.S. Supreme Court issued its opinion in Reed v. Town of Gilbert, __ U.S. __, 135 S. Ct. 2218 (2015), holding that regulations based on sign categories 5 violated the First Amendment of the U.S. Constitution because they required government officials to examine the message conveyed by a particular sign to determine how to categorize the sign. Id. at 2230. The Court found that such regulations based on the message of a sign were content - based restrictions that were presumptively unconstitutional under th e First Amendment , and could only be justified if the government proves that the regulations are narrowly tailored to serve compelling state interests . Id. at 2226 - 27, 2230.

Posted by Marcia Oddi on Tuesday, November 01, 2016
Posted to Indiana Government