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Saturday, December 31, 2016

Ind. Gov't. - Terre Haute orders broadcaster to cease airing police scanner traffic

Lisa Trigg, CNHI, reports in a long story in the Danville Commercial News:

TERRE HAUTE, Ind. — Terre Haute police insist a Texas-based broadcaster of scanner traffic must stop airing its radio transmissions, but the broadcaster is balking, saying it may fight the city in court.

If the dispute does reach the courtroom, it might result in precedent-setting decisions, says one legal expert.

City Attorney Darrell “Eddie” Felling on Dec. 6 sent RadioReference.com LLC a letter asking that Terre Haute agencies “be removed from your broadcasting applications immediately.”

"I understand for some, listening to public safety scanner traffic is a hobby that has been around for years," Felling wrote. "Recently, several of the city's police officers have reported that individuals listening to scanner feeds, like those broadcast by RadioReference.com and/or Broadcastify, have shown up to emergency incident scenes.

"Given the dangers our police officers face today, having our radio traffic broadcast in real-time has created a serious threat to officer safety, the security of incident scenes, and may hinder the officers ability to appropriately ascertain and respond to the emergency situation because listeners are at the scene as well," Felling wrote.

In his "cease and desist" letter, Felling asks RadioReference.com LLC to respond in order "to avoid potential legal action."

While Lindsay C. Blanton III, CEO of RadioReference.com/Broadcastify, has not returned calls from the Tribune-Star seeking comment, he did post a copy of Felling's letter on his website Dec. 13.

ILB: Here is a copy of the correspondence, headed "Broadcastify Receives Cease and Desist from Terre Haute, IN City Attorney."

More from the long Dec. 29th story:

[Police Chief John Plasse] said his commanding officers made the request for radio broadcasts of THPD to be encrypted so the radio traffic cannot be heard by the general public using in-home scanners or devices with scanner apps, such as smart phones and tablets.

“We are trying to take care of our officers and keep them from harm,” Plasse said.

He also pointed out that with today's smart phone technology and the digital scanner applications, it's possible for people committing crimes to monitor police radio traffic so they can avoid police officers dispatched to a crime in progress.

Indiana law, Plasse points out, prohibits the general public from having handheld police scanners for that reason. Now that smart phones and tablets can pickup scanner traffic, they have essentially become a hand-held scanner if used to monitor police communications, he added.

“In the past, mobile scanners have been illegal,” Plasse said. “To me, the scanner app is the same thing. You can hear police being dispatched somewhere, so it defeats our efforts.”

Plasse said he understands that for many years, people have sat at home monitoring police communications on their scanners, and for some people it is a hobby. Those people can still hear non-encrypted broadcasts, but not the "talk groups" that are encrypted.

Plasse said an initial request was not well-received by RadioReference.com, so the city attorney sent the cease and desist letter.

Jeffrey McCall, professor of communication at DePauw University, said it's uncertain how a First Amendment argument by RadioReference might play in court.

Posted by Marcia Oddi on Saturday, December 31, 2016
Posted to Indiana Government

Friday, December 30, 2016

About the ILB - Wrapping up 2016 and looking forward to 2017

Wrapping up 2016, the ILB wants to wish its loyal readers a happy and prosperous New Year!

And to thank the ILB's exclusive sponsor, the law firm of Hoover Hull Turner, for its generous support over the period of transition that was 2016.

Posted by Marcia Oddi on Friday, December 30, 2016
Posted to About the Indiana Law Blog

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 26 NFP memorandum decision(s))

For publication opinions today (3):

In Tina L. Hemingway v. John P. Scott, an 11-page opinion, Judge Crone writes:

John Scott conveyed his property to himself and his girlfriend Tina Hemingway. Earlier that day, Hemingway had signed a contract agreeing that if she cheated on Scott or failed to contribute to the property’s maintenance and expenses, she would reconvey her interest in the property to him. Hemingway later filed a real property partition action against Scott, who filed a counterclaim for breach of contract and replevin. The trial court found Hemingway to be in breach of contract and ordered that she execute a quitclaim deed conveying to Scott all her rights, title, and interest in the property. Hemingway seeks review of the trial court’s interlocutory order, arguing that the deed extinguished the contract pursuant to the doctrine of merger and that the contract was unenforceable as against public policy. Finding that the doctrine of merger does not apply and that the contract is not rendered unenforceable for public policy reasons, we affirm.
ILB: See also this post by Doug Masson: "COA upholds contract requiring forfeiture of real estate as penalty for infidelity."

In Richard Brown and Janet Brown v. City of Valparaiso, Indiana , a 17-page opinion, Judge Najam writes:

The Browns first contend that they have a private cause of action under the Flood Control Act (“the Act”) and, thus, are entitled to pursue their claim that the City was negligent per se when it violated the Act. Accordingly, they assert that the trial court erred when it entered summary judgment in favor of the City on this issue and denied their motion for summary judgment. We cannot agree. * * *

The Browns also contend that they “have the right to pursue monetary damages for the [City’s] creation and maintenance of a public nuisance.” Appellants’ Br. at 22. The Browns point out that Indiana Code Section 13-2-22-13 provides in relevant part that “any structure, obstruction, deposit, or excavation in or on any floodway . . . which will adversely affect the efficiency of or unduly restrict the capacity of the floodway . . . [is] declared to be and to constitute [a] public nuisance[].” The Browns maintain that the Hotter Detention Facility constitutes a public nuisance and, as such, they are entitled to damages for the flooding they sustained to their real property. * * *

Here, the Browns contend that they are entitled to bring a private action for public nuisance because they suffered a “special and peculiar injury” apart from the general public. In particular, they assert that they were the only residents who sustained flooding to their real property “due to the obstructed floodway.” * * *

[W]e hold that the Browns’ damage was neither special nor peculiar for purposes of their public nuisance claim. Thus, the trial court did not err when it entered summary judgment in favor of the City on that claim.

In Dalton Corporation v. Larry Myers and Loa Myers , a 9-page opinion, Judge Robb writes:
Dalton Corporation (“Dalton”) appeals the trial court’s denial of its motion to set aside a default judgment, raising two issues for our review, which we consolidate and restate as whether the trial court abused its discretion in denying Dalton’s motion. Concluding the trial court did not abuse its discretion in denying Dalton’s motion to set aside default judgment, we affirm. * * *

In addition, we take this opportunity to further acknowledge the fact our courts favor deciding cases on the merits and prefer attorneys work together prior to one party seeking to hold another in default. See id. at 659 (recommending lawyers “pick up a phone and remind [opposing] counsel of an imminent deadline” rather than wait for the opposing party to be in default). However, it does not appear there was any contact between the Myerses’ counsel and Dalton’s counsel prior to the Myerses filing the complaint. Thus, it is unlikely the Myerses’ counsel even knew the identity of Dalton’s counsel. In addition, the Myerses properly served Dalton via CSC, and when Dalton neither filed an appearance nor any pleadings, the Myerses still waited nearly three months before filing their motion for default judgment. Because Dalton did not file an appearance, it is likely the Myerses knew only how to contact Dalton via its registered agent, CSC, and the Myerses sent copies of the complaint, motion for default judgment, and the trial court’s order granting default judgment to CSC, all of which were forwarded to Dalton. We are therefore hard-pressed to believe the Myerses could have done anything more to put Dalton on notice.

In sum, the trial court properly considered the parties’ equitable considerations and concluded Dalton did not present exceptional circumstances to warrant setting aside the default judgment pursuant to Rule 60(B)(8). We see no error and conclude the trial court did not abuse its discretion in denying Dalton’s motion to set aside the default judgment.

NFP civil decisions today (8):

In Re the Marriage of: Mark Alan Grube, Jr. v. Brittany P. Grube (mem. dec.)

In the Matter of the Revocable Living Trust Agreement of Joseph W. Dague and the Revocable Living Trust Agreement of Dorothy K. Dague, et al. v. Jean E. Galloway and Joseph E. Dague (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: K.T. and K.O. (minor children) and R.T. (father) v. The Indiana Department of Child Services, et al. (mem. dec.)

Ricardo S. Trevino v. Comprehensive Care, Inc. (mem. dec.)

Jason Tye Myers v. Nalin Desai, et al. (mem. dec.)

Linda H. Gavel v. Vaughan & Vaughan and Charles V. Vaughan (mem. dec.)

Hugo Torres v. Dean White and Town and Country Remodeling, Inc. (mem. dec.)

Allison K. Harper v. James Likens and Jennifer Likens (mem. dec.)

NFP criminal decisions today (14):

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

Devin Brookins v. State of Indiana (mem. dec.)

Robert A. Davis v. State of Indiana (mem. dec.)

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

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

Joseph R. Keller v. State of Indiana (mem. dec.)

Asa Hairston v. State of Indiana (mem. dec.)

Marqwan D. Beserra v. State of Indiana (mem. dec.)

Jason A. Hill v. State of Indiana (mem. dec.)

Robert L. Dowell v. State of Indiana (mem. dec.)

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

Timothy L. Sallee, Jr. v. State of Indiana (mem. dec.)

Lisa Orwig v. State of Indiana (mem. dec.)

Jason E. Hammock v. State of Indiana (mem. dec.)

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

Ind. Gov't. - "A pension fund crisis is looming for Indiana" [Updated Twice]

Ind. Econ. Digest has republished this Dec. 29th editorial by Mark Miller, former publisher and editor, Bluffton News-Banner, headed "A pension fund crisis is looming for Indiana."

It follows on an Oct. 1, 2016 opinion column in the IBJ by Cecil Bohanon and Bill Styring, headed "Government pension plans don't always pay up."

A response letter headed "State can’t ignore its obligations to pensions," from former state budget director Philip Conklin, was published in the IBJ a few weeks later:

In response to a recent column by Bill Styring and Cecil Bohanon, I would like to comment that there is little risk for retired teachers and public employees not receiving benefits as the Indiana General Assembly would be under mandate to provide funds for retirement benefits.

Under the administration of Gov. Ed Whitcomb that attempted to withhold certain funds appropriated to the Teachers Retirement Fund due to a shortfall in state revenue, a Boone County court ruled that the administration could not withhold such funds as the state of Indiana has a contract supported by law with retirees.

Thus, the administration and the Indiana General Assembly would be under a mandate to fulfill their legal obligation to pay retiree benefits regardless of the fiscal condition of the state.

Interesting. The ILB is attempting to find this opinion. So far, I have located a story in the $$ August 6, 1972 Indianapolis Star archive that mentions cutbacks in the teachers pension fund that occurred during the Governor Branigin and "the early administration of Governor Whitcomb," continuing:
Boone Circuit Court has ruled the money must be paid by the state to the teacher's pension fund. The case is on appeal to the Supreme Court.
Anyone happen to have a copy or know the cites?

[Updated at 11:39 a.m.] The ILB has already received an answer to its "what case was that" question, from a self-described "former Daniels staffer who is an anonymous, loyal reader." The case is Etherton v. Wyatt, 293 N.E.2d 43 (1973).

[More at 12:20 p.m.] And here, thanks to the Supreme Court Library, is the official opinion as it appears in the Reports of the Court of Appeals of Indiana, Vol. 155.

Posted by Marcia Oddi on Friday, December 30, 2016
Posted to Indiana Government

Thursday, December 29, 2016

Ind. Decisions - Court of Appeals issues 7 opinion(s) today (and 21 NFP memorandum decision(s))

For publication opinions today (7):

In Andrew Hunter v. State of Indiana, Department of Transportation , a 12-page opinion, Judge Crone writes:

Andrew Hunter was terminated from his employment with the Indiana Department of Transportation (“INDOT”). His administrative appeals were unsuccessful, and he filed a petition for judicial review. INDOT filed a motion to dismiss the petition as untimely, which the trial court granted.

On appeal, Hunter contends that the trial court erred in granting INDOT’s motion to dismiss, claiming that the petition was timely filed. In the alternative, he argues that the untimely filing of a petition is a procedural error, not a jurisdictional error; that INDOT failed to preserve the timeliness issue by not raising it as an affirmative defense; and that, in any event, he should be allowed to demonstrate good cause to excuse the untimely filing. We conclude that the petition was untimely filed; that the error is procedural, not jurisdictional; that the trial court could consider the timeliness issue even if INDOT failed to preserve it; and that because Hunter’s petition was untimely filed, he has waived his right to judicial review and is not entitled to demonstrate good cause to excuse the untimely filing. Therefore, we affirm.

In H.S. v. W.P. , a 9-page opinion, Judge Baker writes:
H.S. (Granddaughter) appeals the judgment of the trial court, which dismissed her guardianship petition regarding W.P. (Grandfather). The trial court found that Granddaughter’s petition was precluded by the doctrine of res judicata because a previous case filed by J.C.P.—her uncle and Grandfather’s son— under the trust code was dismissed with prejudice. The trial court also found that Granddaughter’s petition violated a local court rule. We find that there is no evidence that Granddaughter influenced J.C.P.’s decision to dismiss his own case and that, therefore, the doctrine of res judicata cannot be fairly applied to preclude her petition. Moreover, Granddaughter did not violate the local court rule. Accordingly, we reverse and remand with instructions to vacate the order dismissing her case and for further proceedings.
In Suzanne E. Esserman v. Indiana Department of Environmental Management, a 9-page opinion, Judge Najam writes:
Suzanne E. Esserman appeals the trial court’s dismissal of her complaint against the Indiana Department of Environmental Management (“IDEM”), in which Esserman alleged that IDEM had unlawfully terminated her employment, in violation of Indiana’s False Claims Act, Ind. Code §§ 5-11-5.5- 1 to -18 (2016), in retaliation for her reporting alleged misuse of State funds by certain IDEM officers. Esserman raises two issues for our review: 1. Whether the trial court erred when it concluded that sovereign immunity barred the court from having subject matter jurisdiction over Esserman’s complaint against IDEM. 2. Whether the trial court erred when it concluded that Esserman had failed to state a claim upon which relief can be granted. * * *

8. Esserman objected to approval of some claims made by applicants for dispersal of State funds from the Excess Liability Trust Fund (ELTF), which pays for various projects including the remediation of contamination caused by leaking underground storage tanks. The ELTF is funded in large measure by tax dollars generated from the State tax on gasoline sales.

9. On many occasions, Esserman found that applicants had not properly documented their claims[] and therefore the claims were not “reasonable and cost effected [sic],” as required for ELTF funds under IC § 13-23-9-2 and its implementing regulations.

10. Esserman could not legally approve claims without reviewing them, and when she actually reviewed them, she was disciplined for working too slowly, despite the fact that she found numerous instances in which the applicants should not legally have been paid for all costs invoiced. Appellant’s App. Vol. II at 8. In light of those facts, Esserman claimed that IDEM had unlawfully terminated her employment in retaliation for reporting the alleged misuse of State funds. * * *

In sum, none of the three limited circumstances in which our supreme court has recognized that common law sovereign immunity still exists applies here. See Benton, 721 N.E.2d at 227. And Esserman’s complaint states a claim upon which relief can be granted under Indiana Code Section 5-11-5.5-8. Accordingly, the trial court erred when it dismissed Esserman’s complaint pursuant to Indiana Trial Rules 12(B)(1) and 12(B)(6). We reverse the trial court’s dismissal of Esserman’s complaint and remand for further proceedings.

In William M. Starcher v. State of Indiana, a 6-page opinion, Judge Najam writes:
William M. Starcher appeals his two-year sentence after he pleaded guilty, pursuant to a written plea agreement, to maintaining a common nuisance, a Level 6 felony, and possession of a synthetic drug, as a Class A misdemeanor. Starcher raises a single issue for our review, namely, whether the trial court abused its discretion when it sentenced him. However, we agree with the State that the plain terms of Starcher’s plea agreement demonstrate that he waived his right to appellate review of his sentence. Accordingly, we grant the State’s motion to dismiss this appeal.
In Angela R. Neal v. State of Indiana, a 6-page opinion, Judge Najam writes:
Indiana Code Section 35-38-1-7.8(c) (2016) provides that, “[u]pon determining that a defendant is a credit restricted felon, a court shall advise the defendant of the consequences of this determination.” In this appeal, Angela R. Neal1 presents a question of first impression: whether the trial court’s advisement of the consequences of Neal’s status as a credit-restricted felon complied with Section 7.8(c). We conclude that the trial court’s advisement substantially complied with Section 7.8(c) and that there is no particular language that a trial court must use in order to comply with the statute. Accordingly, we affirm.
In Summer C. Snow v. State of Indiana, a 22-page, 2-1 opinion, Judge Brown writes:
Summer C. Snow appeals her convictions for battery against a public safety official as a level 5 felony and resisting law enforcement as a level 6 felony. Snow raises one issue which we revise and restate as whether the trial court abused its discretion in admitting testimony regarding a handgun. We affirm. * * *

Bradford, J., concurs.
Vaidik, C.J., dissents with separate opinion. [that begins, at p. 14] I respectfully dissent. I do so because the fact that Snow legally possessed a handgun on her own property that she did not use or brandish during her altercation with Officer Peck was not relevant to any issue in this case. And the admission of the gun, including the State’s inflammatory characterization of it as “unregistered” and “literally against the law,” was not harmless error. This case boiled down to Officer Peck’s word against Snow’s and the admission of the gun could have tipped the scales in favor of the State. I would therefore reverse and remand this case for a new trial.

In Reginald Seville Harris v. State of Indiana , a 6-page opinion, Judge Brown writes:
Reginald Seville Harris appeals his conviction for battery against a public safety official as a level 5 felony. Harris raises one issue which we revise and restate as whether the trial court abused its discretion in admitting testimony regarding a handgun. We affirm. * * *

Bradford, J., concurs.
Vaidik, C.J., dissents with separate opinion. [that begins, on p. 5 and reads in full] I respectfully dissent. For the same reasons explained in my dissent today in the case of Harris’ co-defendant, Summer Snow, I believe that the trial court abused its discretion in admitting evidence about a handgun (which belonged to Snow) that was found in Snow’s driveway after [ILB - sic] both Snow and Harris were in custody. Although the majority finds that the error is harmless in light of the other evidence of Harris’ guilt, I disagree because the issue of guilt in this joint trial boiled down to whose version of events to believe: Officer Peck’s version or Snow and Harris’ version. The gun—which Snow never used or brandished during the altercation and, in any event, which Snow legally possessed—and the State’s emphasis on the gun, including the inflammatory (and misleading) fact that it was “unregistered,” colored the jury’s perception of Snow and Harris and led the jury to believe Officer Peck’s version of events. I would therefore reverse Harris’ conviction for Level 5 felony battery against a public safety official and remand this case for a new trial.

NFP civil decisions today (8):

In the Term. of the Parent-Child Relationship of: D.W. and M.W. (Minor Children), R.W. (Father) v. Indiana Department of Child Services (mem. dec.)

In re the Termination of the Parent-Child Relationship of N.B. (Minor Child), and A.H. (Mother) v. Indiana Department of Child Services (mem. dec.)

In the Matter of: C.T., (Child in Need of Services), N.T. v. Indiana Department of Child Services (mem. dec.)

Vassil M. Marinov v. Fiat Chrysler Automotive (mem. dec.)

In In Re the Election of the Mayor of the City of Mitchell; Dan Terrell v. John "JD" England (mem. dec.), a 13-page opinion, Judge Mathias writes:

Dan Terrell (“Terrell”) ran against John England (“England”) and others for the mayoralty of Mitchell in Lawrence County, Indiana. England prevailed over Terrell by four votes. Terrell contested that result in Lawrence Circuit Court and lost. Twice defeated, Terrell now appeals and asks this court to order a special election. * * *

England’s motion to dismiss Terrell’s petition for failure to comply with the contest statute and the Trial Rules was properly granted. Once that order was entered, Terrell’s cause of action was extinguished, and the trial court’s alternative order had no object on which to operate. That order, as well as the findings and conclusions on which it rests, are therefore void and of no force and effect. Affirmed.

Douglas K. Hoffman, as successor trustee of the Hoffman HF Land Trust, and TDM Farms, Inc. v. Andrew G. James and Susan G. James (mem. dec.)

In Angie's List, Inc. v. Rick Myers, Maggie Leonard, and Brock Crabtree (mem. dec.), a 12-page opinion, Judge Baker concludes:

In summary, the trial court properly found that an injunction against working for HomeAdvisor would unduly burden the employees, and it properly ruled in the employees’ favor on that issue. But the evidence unambiguously shows that Leonard and Myers, at the very least, took and failed to return proprietary information. And the evidence unambiguously shows that Myers, at the very least, contacted and encouraged Angie’s List employees to leave their jobs to join HomeAdvisor. As the employees covenanted not to take company documents and not to solicit employees away from the company, the trial court should have granted Angie’s List’s request for a preliminary injunction on these matters.

The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions to enter a preliminary injunction against the defendants to act in accord with their covenants.

Brian E. Lewis v. Bray Lewis (mem. dec.)

NFP criminal decisions today (13):

Alva Oliver Funk v. State of Indiana (mem. dec.)

David A. Penfold v. State of Indiana (mem. dec.)

Ronald E. Harrod v. State of Indiana (mem. dec.)

Joshua A.B. Weathers v. State of Indiana (mem. dec.)

Carlvet Lee v. State of Indiana (mem. dec.)

Clarence Milton Carlisle, II v. State of Indiana (mem. dec.)

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

Keith E. Hopkins, Jr. v. State of Indiana (mem. dec.)

Jeffrey R. Chaney v. State of Indiana (mem. dec.)

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

Larry A. Conn v. State of Indiana (mem. dec.)

Dwayne Pettis v. State of Indiana (mem. dec.)

Steven D. Parks v. State of Indiana (mem. dec.)

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

Law - "Jeff Sessions and Civil Forfeiture"

That was the heading to an editorial that appeared Dec. 26, 2016 in the $$ Wall Street Journal. Some quotes:

The all-too-common practice allows law enforcement to take private property without due process and has become a cash cow for state and local police and prosecutors. Under a federal program called “equitable sharing,” local law enforcement can team up with federal authorities to seize property in exchange for 80% of the proceeds.

Assets are often seized—and never returned—without any judicial process or court supervision. Unlike criminal forfeiture, civil forfeiture doesn’t require a criminal conviction or even charges. According to the Virginia-based Institute for Justice, which tracks forfeitures, 13% of all forfeitures done by the Justice Department between 1997 and 2013 were in criminal cases while 87% were civil forfeitures. And 88% of those forfeitures were done by an administrative agency, not a court. * * *

In 2015 then-Attorney General Eric Holder rolled back part of the equitable-sharing program known as “adoption” which allows state governments to get a piece of the federal forfeiture pie. But this was only a suspension, and the former status quo can be reinstated by another Attorney General.

The lack of procedural protection coupled with financial incentives has turned policing for profit into a slush fund for governments hungry for cash, and the payouts too often come at the expense of civil liberties. We’d like to hear what Mr. Sessions thinks of the practice today.

The ILB has a lengthy list of past entries on the civil forfeiture issue, both in Indiana and nationally.

Posted by Marcia Oddi on Thursday, December 29, 2016
Posted to General Law Related

Ind. Gov't. - More on "Pence could leave state with no energy standards for buildings"

On Dec. 22 the ILB called attention to an important IBJ story by Hayleigh Colombo on what may boil down to an inability of Indiana’s Department of Homeland Security and its Fire Prevention and Building Safety Commission to deal with the normal administrative rulemaking process.

An IBJ story yesterday
by reporter Colombo [Update: Here is a copy of the IBJ story via Ind.Econ.Digest.], headed "Critics decry Pence team for letting state fair stage collapse rule expire," may be considered "chapter 2" of the indictment. Some quotes [ILB emphasis added]:

The Pence administration has let expire the emergency rule put in place after the 2011 Indiana State Fair stage collapse that left seven people dead and dozens injured.

And the regulators in charge of the rule are months or even years away from replacing it.

The emergency rule, which established stricter design and construction requirements for outdoor event equipment such as stage rigging, expired nearly a year ago, on Jan. 1.

Indiana Department of Homeland Security spokesman John Erickson said permanent rule-making to replace the emergency regulations has already started. But he acknowledged the process can take up to two years. * * *

Indianapolis developer Craig Von Deylen, a member of the State Fire Prevention and Building Safety Commission, said he was disappointed the state “let the rule lapse” and said the commission could have noticed the impending expiration of the rule and acted had it been provided adequate staff to do its job. * * *

Von Deylen said the building safety commission is behind on its work because key legal and administrative staff positions once in place at the state level to review and update the codes have been eliminated.

He called for the governor to “provide [the commission] with adequate staff so we can do our job” and wondered if the governor could “sign an emergency order to make the rule come back into effect.”

Asked about the criticism, Erickson told IBJ that “the Indiana Department of Homeland Security staff provides resources based on the Fire Prevention and Building Safety Commission priorities.” * * *

The flap comes amid consternation about the possible lapse of other state codes that the commission promulgates.

IBJ reported last week that critics were also unhappy with the Pence team’s decision not to renew the state’s energy code for commercial structures by the end of the year, which could leave the state without one for up to two years. The residential code is set to expire in 2018.

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

Ind. Law - New IU-McKinney Indiana Law Review includes tributes to Justice Brent E. Dickson

Volume 50, No. 1 of the Indiana Law Review is now available online.

It includes tributes to Justice Brent E. Dickson:

There is also a Symposium on Federal Courts and Partisan Conflict.

A note of interest to the ILB is titled "Paradise Lost: Contracting Away Immunity Under the Indiana Tort Claims Act."

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

Wednesday, December 28, 2016

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 3 NFP memorandum decision(s))

For publication opinions today (2):

In Stardust Ventures, LLC v. Gary Roberts and Teresa Roberts , a 14-page opinion, Judge Robb writes:

Gary and Teresa Roberts (the “Robertses”) entered into an agreement (“Purchase Agreement”) with Stardust Ventures, LLC (“Stardust”) to purchase a houseboat. Thereafter, the Robertses cancelled the agreement and brought suit to recover $75,000 paid to Stardust. Stardust filed a motion to dismiss stating it elected to arbitrate the dispute, as agreed upon in the Purchase Agreement. The trial court denied Stardust’s motion to dismiss, and subsequently entered summary judgment in favor of the Robertses. Stardust appeals, raising several issues for our review, one of which we find dispositive: whether the trial court erred in denying its motion to dismiss. Concluding the trial court erred in denying Stardust’s motion to dismiss, we reverse and remand to the trial court for entry of an order directing the parties to proceed to arbitration. * * *

We conclude the Purchase Agreement is a valid and binding contract between the parties, and that Stardust did not waive its right to request arbitration. Accordingly, we reverse the trial court’s order denying Stardust’s motion to dismiss and remand to the trial court to enter an order compelling arbitration. Reversed and remanded.

In James Gilman v. State of Indiana , a 9-page opinion, Sr. Judge Darden writes:
A jury found James Gilman guilty of leaving the scene of an accident resulting in death, a Level 5 felony. He appeals the trial court’s decision to allow the State to reopen its case after closing argument.

Specifically, the sole issue Gilman presents is whether the trial court erred in allowing the State to reopen its case after closing argument to present evidence in rebuttal of Gilman’s prior knowledge of an existing warrant for his arrest as being unduly prejudicial and an abuse of discretion. * * *

During closing argument, over the State’s objection, Gilman’s counsel argued that Gilman had six seconds to decide what to do at the scene of the accident, stating: “And what was that decision? Do I stick around and risk getting killed or do I run? Split-second decision, life at issue[.]” Counsel later stated: “State argues that he knew that [Robin] hit the tree because they were right by each other. But let’s look at the conditions. It’s dark. He’s scared.” Counsel closed by stating: “. . . I would ask you today to find that there was a reason he ran. He ran out of necessity. Had he known that she had crashed, it might have been a different story. . . And so he ran because he thought his life was in danger.”

The State made its request to reopen its case immediately after defense counsel concluded his closing argument. * * *

The court then allowed Sergeant Heustis to testify regarding Gilman’s prior knowledge of the arrest warrant before the incident, and gave Gilman the opportunity to cross-examine Heustis and present additional closing argument. Based upon the trial court’s pre-trial ruling on the outstanding arrest warrant evidence, the evidence presented during trial, the events that transpired during trial, and the trial court’s careful consideration in attempting to balance and address the equities in this matter, we decline to find an abuse of discretion. * * *

For the reasons stated, we find that the trial court did not abuse its discretion in in allowing the State to reopen its case and present evidence of Gilman’s knowledge of his arrest warrant.

NFP civil decisions today (1):

In the Matter of: V.G. (Minor Child), Child in Need of Services and R.G. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (2):

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

Kevin J. Mamon v. State of Indiana (mem. dec.)

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

Courts - "Racial Quotas at the Texas Bar Are Illegal and Unwise"

This WSJ $$ article by Mark Pullliam, dated Dec. 23rd, is subheaded "No white males need apply for an opening on the state bar’s board. Those seats are reserved for minorities." A few quotes:

[W]hen the State Bar of Texas advertised in October for a position on its board of directors, the posting made clear that white males need not apply. The opening is for a “minority director,” defined by state law to mean an attorney who is “female, African-American, Hispanic-American, Native American, or Asian-American.” * * *

Most of the bar’s 46 directors are elected by the membership. Six are non-lawyers, appointed by the Supreme Court, ironically, “without regard to race, color, disability, sex, religion, age, or national origin.”

Then there are four appointed “minority directors.” This category was created in 1991 by the state legislature, which was then controlled by Democrats. But is it constitutional for state law to exclude white males from these board seats?

The ILB recalls this May 11, 2016 ILB post, headed "Interesting 1996 Nd Ind. Decision on Makeup of Lake Co. Judicial Nominating Commission," summarized as:
In an action challenging a law imposing race and gender quotas on commission membership, the District Court enjoined the application of the race and gender classifications in the selection of judicial nominating commission attorney members

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

Courts - "Charged a Fee for Getting Arrested, Whether Guilty or Not"

Adam Liptak, in his NYT Sidebar column, reports on "booking fees" - the story begins:

WASHINGTON — Corey Statham had $46 in his pockets when he was arrested in Ramsey County, Minn., and charged with disorderly conduct. He was released two days later, and the charges were dismissed.

But the county kept $25 of Mr. Statham’s money as a “booking fee.” It returned the remaining $21 on a debit card subject to an array of fees. In the end, it cost Mr. Statham $7.25 to withdraw what was left of his money.

The Supreme Court will soon consider whether to hear Mr. Statham’s challenge to Ramsey County’s fund-raising efforts, which are part of a national trend to extract fees and fines from people who find themselves enmeshed in the criminal justice system.

Kentucky bills people held in its jails for the costs of incarcerating them, even if all charges are later dismissed. In Colorado, five towns raise more than 30 percent of their revenue from traffic tickets and fines. In Ferguson, Mo., “city officials have consistently set maximizing revenue as the priority for Ferguson’s law enforcement activity,” a Justice Department report found last year.

An unusual coalition of civil rights organizations, criminal defense lawyers and conservative and libertarian groups have challenged these sorts of policies, saying they confiscate private property without constitutional protections and lock poor people into a cycle of fines, debts and jail.

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

Ind. Courts - "Courts haven't seen last of outgoing judge"

That is the headline to this story by James Sprague in the Connersville News Examiner that begins:

She might not have won her bid for re-election last month, but the outgoing judge of the Fayette Circuit Court won’t become a stranger to the courtroom any time soon.

Fayette Circuit Court Judge Beth A. Butsch, last week, received her certification from the Indiana Supreme Court to be appointed as a Senior Judge for the state, which adds her to a list of more than 80 retired or former judges throughout the state who, when needed, fill in as either replacements in the absence of a regular judge or if needed to oversee certain kinds of cases or court programs.

The Indiana Legislature, in 1989, established the Senior Judge program as a way to help “supplement existing judicial resources.”

And the Columbus Republic today reports on the retirement of Bartholomew Circuit Court Judge Stephen Heimann:
When he retires, Heimann, 62, will leave office as the longest-serving judge in Bartholomew County history. His longevity is significant, but it doesn’t begin to describe the impact Heimann has had on the court system and in social issues.

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

Ind. Gov't. - "Some IU employees seek to retain domestic-partner benefits"

The South Bend Tribune has an interesting story reported by Margaret Fosmoe about Indiana University's plan to stop offering domestic-partner health care policies to unmarried same-sex couples, now that such marriages are legal. A few quotes:

The South Bend women are among 22 same-sex IU employees facing the same decision: Get married by the end of this month or one’s partner will lose university health care coverage.

In 2002, long before same-sex marriage became the law of the land, IU started offering domestic partner benefits for gay and lesbian employees. Everyone who applied for the benefit was required to sign an affidavit saying he or she was in a relationship equivalent to a marriage and would marry if the opportunity was available.

The rationale was, those workers weren’t legally able to marry, but they should be entitled to the same benefits for their partners as married heterosexual IU employees.

At its highest point, IU had about 250 registered domestic partners enrolled in university medical plans, according to Margie Smith-Simmons, an IU spokeswoman.

After the June 2015 nationwide legalization of same-sex marriage, that number dropped to 22 as marriage certificates were submitted, Smith-Simmons said. These remaining domestic partners were removed by employees during open enrollment this year following a 14-month transition period.

IU’s human resources department has said it will continue to explore employee requests for IU to expand health care coverage to all same-sex and opposite-sex domestic partners in the future. The university will compare IU benefits to those of peer institutions, and weigh the financial impact of extending coverage.

IU has never offered domestic partner health benefits to unmarried heterosexual employee couples. * * *

While same-sex marriage is legal, that doesn’t mean same-sex couples in Indiana are safe from discrimination based on sexual orientation, some advocates point out. Indiana law permits an employer to fire a worker based on his or her sexual orientation or a property owner to refuse to rent or sell to an individual or couple based on sexual orientation. * * *

The Supreme Court ruling legalizing same-sex marriage only provided one part of the solution to challenges facing same-sex couples, Smith said, noting Indiana’s lack of legal protection in the workplace and housing based on sexual orientation.

“In South Bend, we have leaders like Mayor Pete Buttigieg and many others who are helping create a new sense of community that is widely inclusive, safe and creates opportunities for prosperity,” he said. “Part of that is for all of us to have a rewarding personal life where we feel secure.”

“I really don’t think the university thought this through very much,” Lucal said. “They assumed ‘marriage equality’ meant they didn’t have to think about this anymore.”

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

Tuesday, December 27, 2016

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

There were no transfer dispositions for the week ending Dec. 23, 2016, and hence, there is no transfer list.

Posted by Marcia Oddi on Tuesday, December 27, 2016
Posted to Indiana Transfer Lists

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

For publication opinions today (4):

In P. Kevin Barkal, M.D. and Pemcor, Inc. v. Gouveia & Associates , an 18-page opinion, Judge Riley writes:

Appellants-Plaintiffs, P. Kevin Barkal, M.D. (Dr. Barkal) and PEMCOR, Inc. (Pemcor), appeal the trial court’s grant of summary judgment to Appellee-Defendant, Gouveia & Associates , concluding that Appellants failed to designate expert testimony establishing that Attorney Gouveia breached the standard of care in his legal representation of Pemcor in the underlying bankruptcy case. We affirm. * * *

[Issue] Whether the trial court properly concluded that Appellants failed to designate expert testimony to establish a breach of the appropriate standard of care.

In this seemingly never-ending bankruptcy saga of several medical offices located in California, we are now presented with the alleged legal malpractice component. These sixteen-year-old proceedings arose out of a simple slip and fall personal injury claim which occurred at one of Dr. Barkal’s offices in San Diego, California. * * *

Based on the foregoing, we hold that the trial court properly concluded that Appellants failed to designate expert testimony to establish a breach of the appropriate standard of care.

In Jill, Roeland, Jaymie and Jordyn Polet, et al. v. ESG Security, Inc., a 23-page opinion, Judge Brown writes:
Jill, Roeland, Jaymie and Jordyn Polet, et al., appeal the trial court’s grant of a motion for summary judgment filed by ESG Security, Inc. (“ESG”), and raise three issues which we consolidate and restate as whether the trial court properly granted summary judgment in favor of ESG. We affirm.

This appeal arises out of the collapse of the stage at the Indiana State Fair on August 13, 2011. * * *

In sum, we hold that a stage collapse due to high wind is not foreseeable as a matter of law. Accordingly, we cannot say that ESG had a duty relating to the stage collapse.

Conclusion. For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of ESG.

In Roy A. Smith v. Keith Butts, Jenny Gibson, Amber Berry, Misty Cecil, and Amie Williams, a 10-page opinion, Sr. Judge Darden writes:
Smith claims the trial court erred in granting the Officials’ motion for summary judgment and in denying his motion for summary judgment, arguing that he proved he exhausted his administrative remedies. In response, the Officials assert that his formal grievances were untimely and, further, that he caused the untimely mailing of the motion by asking the Officials to return his legal documents to him rather than mailing them to the United States Supreme Court. * * * Affirmed in part, reversed in part and remanded.
In Watts Water Technologies, Inc. v. State Farm Fire & Casualty Co. a/s/o Richard Lucka, a 19-page opinion, Judge Brown writes:
Watts Water Technologies, Inc. (“Watts”) appeals the trial court’s order denying its motion to compel arbitration. Watts raises three issues which we consolidate and restate as whether the trial court erred in denying its motion. We affirm.
NFP civil decisions today (1):

In Re: The Guardianship of C.R. and A.R. E.R. v. M.S. and D.S. (mem. dec.)

NFP criminal decisions today (3):

Andrew W. Barrus v. State of Indiana (mem. dec.)

George A. Foote v. State of Indiana (mem. dec.)

Ellica Ann Houser v. State of Indiana (mem. dec.)

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

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/26/16):

Next week's oral arguments before the Supreme Court (week of 1/2/17):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/26/16):

Next week's oral arguments before the Court of Appeals (week of 1/2/17):

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 Tuesday, December 27, 2016
Posted to Upcoming Oral Arguments

Monday, December 26, 2016

Courts - "Calif. court officials blame software for wrongful arrests, other legal mishaps"

That is the headline to this Dec. 20th Washington Post story reported by Karen Turner. It begins:

Wrongful arrests, delayed prison releases and other legal mishaps have been caused by inaccurate records processed by a new court management software system installed in Alameda County, Calif., court officials say.

It has gotten so bad that the public defender's office filed a motion last month for the county court to immediately fix the problems caused by the county court's software system, called Odyssey Case Manager, or scrap the system completely. A total of 26 separate incidents were documented in the motion, though Public Defender Brendon Woods stressed that this was “just the tip of the iceberg” in terms of the number of people affected.

“People’s lives are being drastically changed. This is something that needs to be fixed immediately and not later,” Woods said to The Washington Post.

Odyssey manages a court's logistics, keeping track of people who have entered the legal system and the status of their cases. It's employed across 600 counties in 21 different states [ILB: including Indiana], serving an estimated one-third of all courts in the country, according to the company behind the software, Tyler Technologies.

The story cites this Indianapolis Star story from Dec. 22, 2014. However, as the ILB wrote in this Dec. 2, 2016 post (quoting a similar story from ArsTechnica), "there is no mention of a software issue in the Marion County, Indiana complaint."

Posted by Marcia Oddi on Monday, December 26, 2016
Posted to Courts in general

Saturday, December 24, 2016

Ind. Decisions - Rehearing sought in 7th Circuit's 2-1 Nov. opinion denying a challenge to use of "stringray" evidence

The 7th Circuit decided USA v. Damian Patrick (ED Wis) on Nov. 23, 2016. The vote in the 23-page opinion was 2-1, with Chief Judge Wood's dissent beginning on p. 10. Judge Easterbrook, writes for the majority:

After Patrick filed his opening brief, the prosecutor revealed that Patrick’s location had been pinned down using data from a cell‐site simulator. That device (often called a Stingray, the trademark of one brand) pretends to be a cell‐phone access point and, by emit‐ ting an especially strong signal, induces nearby cell phones to connect and reveal their direction relative to the device. * * *

The United States has conceded for the purpose of this litigation that use of a cell‐site simulator is a search, so we need not tackle these questions. The parties join issue, how‐ ever, on the significance of the fact that police did not reveal to the state judge who issued the location‐tracking warrant that they planned to use a cell‐site simulator—indeed, im‐ plied that they planned to track him down using his phone company’s data. Patrick says that leaving the judge in the dark (perhaps misleading the judge by omitting a potentially material fact) makes the location‐tracking warrant invalid. This poses the question whether a judge is entitled to know how a warrant will be executed. * * *

A fugitive cannot be picky about how he is run to ground. So it would be inappropriate to use the exclusionary rule, even if the police should have told the judge that they planned to use a cell‐site simulator to execute the location warrant.

The Department of Justice announced last September that in the future it would ordinarily seek a warrant, plus an or‐ der under the pen‐register statute, 18 U.S.C. §3123, before using a cell‐site simulator, but it has not conceded that this is constitutionally required. Questions about whether use of a simulator is a search, if so whether a warrant authorizing this method is essential, and whether in a particular situa‐ tion a simulator is a reasonable means of executing a war‐ rant, have yet to be addressed by any United States court of appeals. We think it best to withhold full analysis until these issues control the outcome of a concrete case. AFFIRMED

[p. 10] WOOD, Chief Judge, dissenting. This case raises serious is‐ sues about the use of cell‐site simulators to track down the location of a target person. That is how police found Damian Patrick, for whom an arrest warrant had been issued for pa‐ role violations. My colleagues see no serious Fourth Amend‐ ment issues in Patrick’s case, because they believe that a de‐ fendant has no interest in the manner in which a warrant is executed. They also question whether the use of a cell‐site simulator is a “search” at all, noting that Smith v. Maryland, 442 U.S. 735 (1979), holds that the use of a pen register is not a “search,” and that United States v. Knotts, 460 U.S. 276 (1983), says the same thing about the use of a beeper. Finally, they note that Patrick was arrested in a “public place,” by which they mean sitting in the passenger seat of a parked car. All of this matters greatly to Patrick, because if his initial arrest was invalid, then the gun that the police spotted in plain view in the car should have been suppressed as “fruit of the poison‐ ous tree,” see Wong Sun v. United States, 371 U.S. 471, 488 (1963), and Patrick’s conviction under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for being a felon in possession of a firearm would need to be revisited. If the arrest complied with the Fourth Amendment, the gun was lawfully found and seized and his conviction must be affirmed. Because I believe that the panel opinion underestimates the relevant technology’s capa‐ bilities and extends Utah v. Strieff, 136 S. Ct. 2056 (2016), too far, I dissent.

This is the first court of appeals case to discuss the use of a cell‐site simulator, trade name “Stingray.” We know very little about the device, thanks mostly to the government’s re‐ fusal to divulge any information about it. Until recently, the government has gone so far as to dismiss cases and withdraw evidence rather than reveal that the technology was used. * * *

It is time for the Stingray to come out of the shadows, so that its use can be subject to the same kind of scrutiny as other mechanisms, such as thermal imaging devices, GPS trackers, pen registers, beepers, and the like. Its capabilities go far be‐ yond any of those, and cases such as Riley indicate that the Supreme Court might take a dim view of indiscriminate use of something that can read texts and emails, listen to conver‐ sations, and perhaps intercept other application data housed not just on the target’s phone, but also on those of countless innocent third parties. Governmental entities, including the Justice Department itself, see DOJ Policy Guidance, ante at 3– 4, and the State of Illinois, see Citizen Privacy Protection Act, Pub. Act 099‐0622 (2016) (delineating court order, disclosure, and minimization requirements for police use of cell‐site sim‐ ulators), have recognized the weighty Fourth Amendment concerns the device provokes. It is possible that discovery could reveal that none of those concerns is triggered in this case. But before we dismiss them, we should have all the facts before us. For that reason, I would remand this case for further fact‐finding. I respectfully dissent.

The Milwaukee Journal-Sentinel reports today in a long story that begins:
After a split ruling on police use of secret cellphone tracking technology, a Milwaukee man has asked the full U.S. 7th Circuit Court of Appeals to reconsider his case, the first on the issue to reach a federal appellate court.

"It is time for the Stingray to come out of the shadows, so that its use can be subject to the same kind of scrutiny as other mechanisms, such as thermal imaging devices, GPS trackers, pen registers, beepers, and the like," wrote Judge Diane Wood. "Its capabilities go far beyond any of those."

Wood wrote a dissenting opinion in a 2-1 November decision rejecting Damian Patrick's request that his case be sent back to a trial court to learn more about the role a Stingray — a brand of cell tower simulator — played in his arrest. Citing the growing concern about Stingrays, his attorneys this week petitioned for a rehearing by all nine judges of the 7th Circuit.

ILB: Here is a long list of ILB "stringray" posts.

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

Thursday, December 22, 2016

About the ILB - Starting annual semi-vacation until 2017(!)

ILB is now beginning its annual semi-vacation until 2017. Posts will be limited, but opinions will be covered. Happy Holidays!

Posted by Marcia Oddi on Thursday, December 22, 2016
Posted to About the Indiana Law Blog

Courts - Still more on: Many in limbo because a federal district judge in Texas ruled to halt an overtime rule

Updating this ILB post from Dec. 6th, Michael Reschke has a story today in the $$ Bloomington Herald-Times, headed "IU will hold tight before revising overtime rules again." The long story begins:

Indiana University is planning to wait until after President-elect Donald Trump takes office before deciding if it will reverse any of the changes that were made to comply with new federal overtime rules, despite a judge's decision to block the order.

"Once we get into January, we'll see if we can get any information about what the Trump Administration will do with the (Fair Labor Standards Act) change and reassess," said John Whelan, vice president for university human resources at IU. "For now, we made all the changes, and we are not revising any of those changes at this point."

IU began implementing changes in advance of the Dec. 1 deadline to comply with the new rule that would have extended overtime eligibility to millions of Americans. Just a week before the Obama Administration order went into effect, a federal judge in Texas issued a nationwide injunction temporarily suspending the measure.

Posted by Marcia Oddi on Thursday, December 22, 2016
Posted to Courts in general | Indiana Government

Ind. Courts - Spouse of Court of Appeals Judge Melissa May dies after long illness [Corrected]

A memorial service is planned for January 2nd in Martinsville for the husband of Judge Melissa May:

Michael Robert May, 58, passed away after a long battle with cardiac amyloidosis at home under the care of IU Health Hospice.

A celebration of Mike’s life is planned for 7:00 p.m. Monday January 2, 2017 at Costin Funeral Chapel in Martinsville, IN with two hours of visitation prior. In lieu of flowers, a contribution in Mike’s name to the German Shepherd Rescue Indy at P.O. Box 40693, Indianapolis, IN 46240 1831 Prospect Street
Indianapolis, IN 46203
is requested.

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

Ind. Gov't. - "Property tax debt won’t doom Can-Clay: Perry County nearing deal to keep company open"

Stuart Cassidy of the Perry County News has a lengthy, well-reported story today that caught the ILB's interest. Some quotes:

TELL CITY – Instead of a lump of coal, the Cannelton-based pipe manufacturer, Can-Clay Corp., may get a huge gift just in time for Christmas. Amassing nearly a half-million dollars in back property taxes, the financial slate will soon be wiped clean with a county takeover of the grounds. Yet, in a controversial move, the business may be allowed to remain open.

Nearing a Dec. 31 deadline to make good on the delinquency, all indications are that a payment will not be forthcoming. That means the county will assume the property, voiding obligations for the company to pony up the more than $600,000 incurred with penalties.

In September, the county commissioners pulled a tax deed it held on Can-Clay for failure to pay taxes, giving the company 120 days to pay. Failure to meet the deadline forfeits the property into county ownership. But from early on in the process, the county has maintained that they didn’t want to force a seizure, but had little recourse after Can-Clay failed to live up to a previous repayment deal.

In the waning days of 2016, despite the prospective acquisition of the real-estate, the county and the manufacturer are close to a deal that would allow the business to keep producing goods. Terms are not yet finalized, but the county commissioners have said they are willing to allow Can-Clay to lease the grounds and apply that money toward repayment of the debt. Once the county is compensated – to the satisfaction of whatever agreement materializes -– the business would be allowed to repurchase the physical property where it has operated for more than a century.

During a county-held proprietorship of the grounds, Can-Clay wouldn’t incur the annual property taxes. However, they would be taxed on machinery and equipment they use.

Some have expressed concern about giving the company a pass, fearing it sets a precedence for other failing industries to trek a similar bailout path. Yet commissioners have said this is the best way to go about the ordeal, since the alternative means the county receives no money and loses a business. What’s left would be a dilapidated set of properties that could require substantial cleanup efforts on the taxpayers’ dime that would likely take years to complete.

Cannelton Mayor Mary Snyder, who was present at the latest commissioners meeting Tuesday, voiced restrained pessimism about what’s taking place. With her city losing upward of $50,000 a year because of the delinquent tax payments, Snyder said “we’ve already suffered for four years.” Skeptical that the proposed arrangement would offer much benefit, she added that “Can-Clay has always been there and I’m not trying to shut them down,” yet expressed dissatisfaction that the company would be allowed to potentially profit despite its track history and dim financial outlook. * * *

According to county attorney Chris Goffinet, there are still barriers to establishing a covenant with the company, namely “some rather complicated issues on taxes and what we can and can’t do with the land.” In addition, any agreement would need to be signed off by the county redevelopment commission as all the parties determine an overall price, lease payments, duration and any long-term property cleanup efforts. * * *

With a potential of having to wade through a complex legal and tax system in order to finalize a deal, Goffinet recommended the county employ the services of the Ice Miller legal team, which has expertise in business, government and financial matters, and has assisted the county in other previous ventures. Expecting to incur upward of $15,000 for the extra legal advice, the county plans to secure a good-faith deposit from Can-Clay to cover the costs. Any advancement on that front, at this point, would be contingent on the business financing that work.

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

Ind. Gov't. - Attorney General Zoeller's future plans

Elizabeth Beilman of the New Albany News & Tribune has a long story today on Attorney General Greg Zoeller. A sample:

"Two kids going to college — that's not a retirement period," he said in an interview at the News and Tribune office in New Albany on Wednesday. "And I'm still at the top of my game."

Zoeller won't be moving back to New Albany, as was the plan had he won his bid for the 9th Congressional District seat this year.

Instead, he'll stay in his Indianapolis home — though he expects he'll be down in Southern Indiana frequently to work on a new project he will announce in January related to trade and commerce.

Zoeller will also teach a class once a week at a law school in Washington D.C. of which he wouldn't yet reveal the name. He's planning to work in national mediation, too, where he'll help states and companies reach settlement agreements.

The Republican officeholder lost the Congressional race in the primaries against Trey Hollingsworth, who went on to win the general.

"I kind of saw it as a tough job at a tough time really going in and making the best of it," he said, of his run for Congress.

Zoeller decided not to run for re-election as attorney general, an office that doesn't have term limits.

"It's a great time to be leaving, especially with the political arena," he said. "I don't know if I fit today's political arena."

Zoeller is finishing his second term, or eighth year, in office. He leaves with a sense of appreciation.

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

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 10 NFP memorandum decision(s))

For publication opinions today (1):

In M.T.V. v. State of Indiana , a 14-page opinion, Judge Bailey writes:

M.T.V. appeals his adjudication of delinquency for Conspiracy to Commit Aggravated Battery, a Level 3 felony if committed by an adult. We affirm.

M.T.V. raises the following restated issues: I. Whether the trial court abused its discretion when it: A. Determined there was a sufficient foundation to admit records of M.T.V.’s Facebook conversations, and B. Admitted statements made by M.T.V.’s coconspirator in those Facebook conversations; and II. Whether the evidence is sufficient to support M.T.V.’s adjudication. * * *

We conclude that, collectively, the State established the requisite reasonable probability that the Facebook records corresponded to M.T.V.’s and B.E.’s accounts and that M.T.V. and B.E. authored the conversations therein. Therefore, the juvenile court did not abuse its discretion with respect to authentication. Our review does not end here, however, because the content of the authenticated conversations must also be admissible. * * *

We find that there is substantial evidence of probative value to support a factfinder’s determination that M.T.V. and B.E. formed an agreement to inflict injury on J.R., during a school shooting to be carried out on April 20, 2018, that would create a substantial risk of J.R.’s death. Accordingly, there is sufficient evidence to support the true finding.

The trial court did not abuse its discretion in admitting Facebook conversations containing statements made by M.T.V. and his coconspirator, and the evidence is sufficient to support the delinquency adjudication.

NFP civil decisions today (5):

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

Gasser Chair Company, Inc. b. Marlene J. Nordengreen (mem. dec.)

Community Park Investments, Inc. v. Jennifer Mahoney and Curtis Glancy (mem. dec.)

In the Term. of the Parent-Child Relationship of: M.M. (Minor Child), and S.M. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

Kurt Brenneman v. Lisa Brenneman and State of Indiana (mem. dec.)

NFP criminal decisions today (5):

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

Ariel Lasos v. State of Indiana (mem. dec.)

Jonas Jackson v. State of Indiana (mem. dec.)

Trey M. Shirely v. State of Indiana (mem. dec.)

Curtis Bacon v. State of Indiana (mem. dec.)

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

Ind. Gov't. - "Pence could leave state with no energy standards for buildings" Or not

This is a troubling Dec. 21st story by Hayleigh Colombo of the IBJ. It begins:

Indiana could be without an energy code for up to two years after the Pence administration decided against extending the current one—a move that critics say could have negative results for Hoosiers’ energy bills and lead to a “slumlord’s dream” scenario.

The state’s energy conservation code—which covers commercial buildings and apartments and sets minimum energy standards—expires Dec. 31. That's before Gov.-elect Eric Holcomb takes office.

Groups including the American Institute of Architects hoped the Pence administration would extend the code for one year while the new administration worked on updated rules. The current code is based on 2007 industry standards.

But state officials say that the Fire Prevention and Building Safety Commission “could not” readopt the former code after two groups requested changes, although it's not clear why. To make changes, an agency must launch a new rule-making process that can take up to two years but that can happen even as an older rule remains in place.

And without renewing the energy code now, the state will be without regulations to dictate requirements for heating and air, insulation and lighting systems.

“The commission is pursuing energy code adoption, but the final product will take time to come to fruition,” said spokesman John Erickson of Indiana’s Department of Homeland Security.

But the groups say that is the opposite of what they wanted, and that they’re still hoping the Pence administration extends the code by the deadline. Holcomb's spokesman, Pete Seat, said the incoming governor—who is currently the state's lieutenant governor—is aware of the energy code issues but wouldn't comment on the controversy. He said Holcomb "will address these issues, as well as others, after he is sworn into office."

Isaac Elnecave, senior policy manager for the Midwest Energy Efficiency Alliance, said he was shocked to hear that his group’s request to update the state’s energy standards could lead to a decision not to renew current ones.

“I have never heard of a state that suspends an actual code while an upgrading process is underway,” Elnecave said. “That was absolutely not the intention here, to put it bluntly. It actually is the opposite of what we asked for.”

And the result, which would impact new construction, could have negative consequences for middle- or lower-income Hoosiers, according to Jason Shelley, executive director of AIA Indiana.

ILB: What is the Problem Here?

Looking at the Indiana Fire Prevention And Building Safety Commission Rule-Making Docket Index reveals only one "rulemaking" action for 2016, LSA Doc. #16-329 - Readoption.

This document, posted 8/10/2016 in the Indiana Register, indicates that 675 IAC 19-4 2010, the Indiana Energy Conservation Code, is set to "sunset", apparently on Jan. 1, 2017.

A special "sunset" statute applies, IC 4-22-2.5. Sec. 4 covers requests for changes.

Importantly, Sec. 5 provides:

If a rule is not readopted before the expiration date for the rule and the governor finds that the failure to readopt the rule causes an emergency to exist, the governor may, by executive order issued before the rule's expiration date, postpone the expiration date of the rule until a date that is one (1) year after the date specified in section 2 of this chapter.
Problems resulting from the overarching sunset statute have occurred in the post. Most notably, in 2011, it wasn't discovered until July 9th that the entire FSSA has been repealed, effective June 30th. See a number of ILB posts here (see especially this one). Gov. Daniels revived it retroactively by executive order.
___________
The ILB has written a number of times about the way the State handles the various building codes. See this post from August 7, 2008. In brief, the state entities incorporate copyrighted national building codes by reference, and the Indiana rules simply consist of a statement saying that, plus a list of any exceptions. They of course mean nothing to you unless you read them with a copy of the $$$ copyrighted national code. (This is explained more fully in the linked post.)

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

Law - Student loan forgiveness for "public service" job - what happens if government changes mind partway though?

Ron Lieber reported in the NY Times yesterday in a long story that began:

Hundreds of thousands of people with piles of federal student loan debt had not been too concerned because they were counting on a federal government program that would forgive those loans if they worked at least 10 years in a public service job.

But what happens if the definition of “public service” seemed to change midway through that decade?

On Tuesday, the American Bar Association and four lawyers who thought they qualified filed suit against the Department of Education trying to answer that question. The department had informed several of them that their jobs would make them eligible for loan forgiveness, but they later received letters saying that the ruling had changed.

All four, according to the legal brief, might have picked different jobs, borrowed less or entered different repayment plans had they known the rules would change.

The story links to the 45-page complaint filed by the ABA.

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

Courts - "Md. Court officials considered contempt for 'Serial' producers for airing courtroom audio"

Two years ago, the ILB had several posts under the heading, "‘Serial’: An investigative journalism podcast becomes a cultural obsession."

Yesterday, Justin Fenton of The Baltimore Sun had an interesting story headed "Court officials considered contempt for 'Serial' producers for airing courtroom audio." The story begins:

Te popular "Serial" podcast relied in part on Baltimore courtroom audio from the trial of Adnan Syed to help raise questions about and bring attention to his case.

But if the courts had their way, the podcast's millions of listeners wouldn't have heard any of Syed's original trial. Officials disclosed this week that they even considered holding the producers in contempt.

Maryland law prohibits the broadcasting of any criminal case, and court officials this year reached out to producer Sarah Koenig about how the tapes ended up in the podcast. Earlier this year, Syed's conviction was overturned in part on questions raised by listeners of the show.

Koenig said she received incorrect legal advice about the state's rules on courtroom audio, which the court accepted after Koenig agreed she would not broadcast court proceedings in the future.

"In light of her explanation and acknowledgment, a decision was made not to proceed with sanctions such as contempt for this occurrence," said Kevin Kane, a spokesman for the Maryland Judiciary.

Several states allow wide access for cameras in courtrooms. Not only are cameras not allowed under any circumstance in Maryland, but the courts restrict access to share video and audio recorded by courtroom cameras after a case has concluded.

In Baltimore, reporters may only view such video recordings by sitting at the desk of a courthouse staffer. Audio CDs can be purchased, but cannot be shared.

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

Environment - "Congress puts states in coal ash drivers' seats"

That is the headline to James Bruggers' complex Dec. 15th story in the Louisville Courier-Journal. It begins:

Congress weighed in on coal combustion wastes over the weekend, passing a bill that gives the utility industry what it wanted – a clear path for states to take the lead in regulating them.

But the coal ash language Congress inserted into its massive Water Infrastructure Improvements for the Nation Act was quickly interpreted in different ways by the Kentucky Energy and Environment Cabinet and environmental advocates as it relates to a controversial state proposal to greatly relax the permitting process for ash landfills and settling ponds.

The water development bill, which President Barack Obama is expected to sign, mostly deals with water projects across the nation. But it has a few paragraphs that breaks states into two categories – those that participate and create their own regulatory programs as the industry nationally has favored, and those that don't. For those that participate, states would enforce ash dump standards. For those that don't, the U.S. Environmental Protection Agency could step in and take over with federal enforcement. Citizens could still step in and sue in either case, sources said.

ILB: For background, start with this ILB post from Dec. 9th.

Posted by Marcia Oddi on Thursday, December 22, 2016
Posted to Environment

Ind. Decisions - "Orbitz Tax Assessment Tossed in Indiana"

The Indiana Tax Court decision Tuesday in Orbitz, LLC v. Indiana Department of Revenue (ILB summary here) is the subject of a Bloomberg BNA story by Michael J. Bologna that begins:

The Indiana Tax Court handed another victory to online travel companies in their battle with municipal and state revenue agencies, ruling that Orbitz LLC isn’t liable for a sales tax and innkeeper’s assessment levied by the Indiana Department of Revenue ( Orbitz LLC v. Ind., Dep’t of State Revenue, Ind. T.C., No. 49T 10-0903-TA-00010, 12/20/16 ).”

Judge Martha Blood Wentworth on Dec. 20 found no basis for affirming an Indiana revenue department assessment of $200,000 imposed in December 2007. Wentworth ruled that Chicago-based Orbitz couldn’t be characterized as a “retail merchant” under state law and couldn’t be held responsible for any taxes on the “mark up”—the difference between the wholesale room rate charged by hotels to Orbitz and the retail rate paid by customers to Orbitz.

The ruling, however, included a determination that could impact Orbitz’s checkbook.

On a separate question of the proper measure of the tax base for the transactions in question, Wentworth ruled any additional assessments of sales or innkeeper’s taxes that might be due should be assessed against the hoteliers as the proper retail merchants. That determination could be meaningful because most major hotel chains have for many years required the OTCs to enter into agreements that indemnify them against adverse tax rulings.

“During the period at issue, the Department erred in issuing sales and innkeeper’s tax assessments against Orbitz based on the retail rate of Indiana hotel rooms as a matter of law because the hoteliers, as the retail merchants, were liable for the taxes, not Orbitz,” Wentworth wrote.

It was unclear how Indiana would respond to the ruling. A spokesperson for the Indiana revenue department didn’t immediately respond to a request for comment. An attorney representing Orbitz declined to comment.

Posted by Marcia Oddi on Thursday, December 22, 2016
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - More on: Applications available to fill upcoming vacancy on IURC

Updating this ILB post from Dec. 16th, applications will be accepted through close of business on Thursday, January 5, 2017. After the close of the application period, the Nominating Committee will conduct a public meeting to interview applicants on Monday, January 23, 2017.

The process is to fill a the vacancy created by the retirement of Commissioner Carol Stephan, whose unexpired term will end January 31, 2020.

Statute requires the IURC to be bipartisan. But that is not a limitation to applicants for this opening, as the ILB learned through an inquiry to the Governor's office:

Current party make up (after Stephan retires) is 2 Republicans and 2 Democrats. The next appointment can be from either party.

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

Wednesday, December 21, 2016

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 22 NFP memorandum decision(s))

For publication opinions today (4):

In Shelby's Landing-II, Inc., Richard Deckard, Jr., Marilyn Deckard, and Deckard Realty & Development Co. v. PNC Multifamily Capital Institutional Fund XXVI Limited Partnership, et al., a 20-page opinion, Judge Pyle writes:

Appellants-Defendants, Shelby’s Landing-II, Inc. (“Shelby’s Landing”); Richard Deckard, Jr. (“Richard”); Marilyn Deckard (“Marilyn”); and Deckard Realty & Development Co. (“Deckard Realty”) (collectively, “the Defendants”), appeal the trial court’s judgment in favor of Appellees-Plaintiffs, PNC Multifamily Capital Institutional Fund XXVI Limited Partnership (“PNC Multifamily”); Columbia Housing SLP Corporation (“Columbia”); and Shelby’s Landing II-L.P. (“the Partnership”) (collectively, “the Plaintiffs”), in their breach of contract claim. The Defendants argue that it was error for the trial court to find that they had misappropriated the Partnership’s funds and committed theft because the Plaintiffs did not raise misappropriation or theft claims in their complaint. They also argue that the trial court abused its discretion by awarding the Plaintiffs an unreasonable amount of attorney fees.

We conclude that, regardless of the trial court’s misappropriation and theft findings and conclusions, there were adequate uncontested findings and conclusions to support the trial court’s judgment. Because we also conclude that the trial court awarded the Plaintiffs a reasonable amount for their attorney fees, we affirm the trial court’s judgment. * * *

Contrary to the Defendants’ arguments—and as the trial court found—there was substantial discovery in this case. Although the Plaintiffs took only one deposition, the record is replete with the substantial and detailed financial records the Plaintiffs’ attorneys had to investigate in order to prove the Defendants’ liability under the Purchase Agreement—an issue that was not resolved through summary judgment. Also, the amount at controversy in both the claim and counter-claim was significant. We do not find it dispositive that the trial court did not compare PNC Multifamily’s legal expenses with the fee customarily charged in the locality for similar services, because the trial court was not obligated to address all of the factors listed in Indiana Professional Conduct Rule 1.5(a). See Cavallo, 42 N.E.3d at 1010. It is clear that the trial court addressed several of the Rule 1.5(a) factors, including the time and labor required, the novelty and difficulty of the questions involved, and the amount in controversy. Based on these factors, we conclude that the trial court did not abuse its discretion in awarding the Plaintiffs $385,125.26 for their attorney fees.

In In re the Termination of the Parent-Child Relationship of: O.G., II (Minor Child) and K.T. (Mother) & O.G. (Father) v. The Indiana Department of Child Services, a 33-page opinion, Judge Baker writes:
O.G. (Father) and K.T. (Mother) appeal the juvenile court’s order terminating their parent-child relationship with O.G., II (Child). Father argues that the juvenile court erred by admitting certain evidence and both parents argue that there is insufficient evidence supporting the termination order. We find that the juvenile court erroneously admitted certain hearsay evidence. We also find that the evidence does not support the order terminating the parent-child relationship with either parent and reverse and remand for further proceedings. * * *

There is an extraordinarily troubling pattern of behavior in this case. The FCM made little to no effort to contact Father at the initiation of the CHINS case. And then, after DCS made its own internal decision that the case plan was to reunify Child with Mother, the FCM’s minimal efforts to engage Father ceased altogether. While Father’s own record is far from sterling, the evidence in the case establishes that, when he was not incarcerated, he made multiple attempts to contact the FCM and engage in services; furthermore, when he was incarcerated or on work release, he participated with services available to him.

Our Supreme Court has recently reemphasized that “‘[t]ermination is intended as a last resort, available only when all other reasonable efforts have failed.’” In re R.S., 56 N.E.3d 625, 631 (Ind. 2016) (quoting In re V.A., 51 N.E.3d 1140, 1151-52 (Ind. 2016)). In this case, it cannot be said that all other reasonable efforts have failed, given that DCS made an explicit internal decision that it would exercise no effort whatsoever to reunify Father with Child, and proceeded to follow through with that plan. Father has made multiple attempts to contact DCS and reengage with services, notwithstanding complete radio silence from the FCM during his periods of incarceration, and has been rebuffed at every turn. He deserves a genuine chance to prove that he can parent his child. It may be that he cannot meet that bar, but he has a constitutional right to try. Under these circumstances, we find that the evidence does not support the juvenile court’s conclusion that Father is unwilling to be a parent to Child; nor does it support the conclusion that termination is in Child’s best interests. Therefore, we reverse and remand for further proceedings.

In Michael D. Cundiff v. State of Indiana, an 8-page opinion, Sr. Judge Shepard writes:
Appellant Michael D. Cundiff appeals the denial of his petition for relief from his lifetime sex offender registration requirement. We conclude that Cundiff is required to register, but that residence restrictions enacted after his conviction do not apply to him. * * *

The trial court did not err in denying Cundiff’s request to vacate the appointment of the special judge. However, the trial court did err by determining that the residency restrictions of Indiana Code section 35-42-4-11 apply to Cundiff. Therefore, we remand this case to the trial court to issue an order so recognizing.

In Will Thomas v. State of Indiana , a 15-page opinion, Judge Bailey writes:
Will Thomas (“Thomas”) was convicted of Dealing in a Narcotic Drug, as a Class A felony. He now appeals. We reverse.

Thomas raises one issue for our review, which we restate as whether the trial court abused its discretion when it admitted into evidence heroin recovered from Thomas after a warrantless arrest following a traffic stop. * * *

Thomas argues on appeal that police lacked the requisite probable cause to arrest, detain, move, and subsequently search him after the traffic stop. Thomas does not challenge the legitimacy of the traffic stop. Rather, he contends that police detention and transportation of him to a police station in order to conduct a strip search was not supported by probable cause and was unreasonable under the totality of the circumstances. Evidence obtained from the detention, Thomas argues, should have been barred from admission into evidence by the exclusionary rule. * * *

In the absence of probable cause to detain Thomas, the police detention and transportation of Thomas to the Marion Police Department was unconstitutional. The drugs obtained from him after he had been transported were thus “fruit of the poisonous tree,” and should have been excluded from evidence at trial. They were not excluded, and they would not have been found had Thomas not been detained. We accordingly conclude that the trial court abused its discretion when it did not exclude the heroin from evidence.

Police violated Thomas’s constitutional rights when they detained and transported him. The trial court erred when it did not exclude evidence obtained as a result of the detention. We accordingly reverse Thomas’s conviction.

NFP civil decisions today (7):

In the Term. of the Parent-Child Relationship of: A.C. (Minor Child) and M.K. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

In the Matter of the Involuntary Term. of the Parent-Child Relationship of: H.B., E.B., and D.B. (Minor Children); A.B. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

In Re the Guardianship of A.I.K., a Minor: Donal W. Kruchten (mem. dec.)

In the Matter of D.K., Child in Need of Services, N.B. (Mother) v. Indiana Department of Child Services (mem. dec.)

C&R Remodeling, LLC v. City of Hammond, Common Council of the City of Hammond, City of Hammond Department of Planning and Development, and City of Hammond Facade Rebate Committee (mem. dec.)

In the Matter of E.J.-H. & A.J.-H. (Minor Children), Children in Need of Services, and G.J. (Mother) v. The Indiana Department of Child Services (mem. dec.)

In the Term. of the Parent-Child Relationship of: B.A. and B.S. (Minor Children); C.S. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (15):

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

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

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

Gerald Spaulding, Sr. v. State of Indiana (mem. dec.)

Giavonda Chandler v. State of Indiana (mem. dec.)

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

William D. Funderburgh, III v. State of Indiana (mem. dec.)

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

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

Darren A. Mallett v. State of Indiana (mem. dec.)

Joseph Honeycutt v. State of Indiana (mem. dec.)

Hezekiah Joel Colbert v. State of Indiana (mem. dec.)

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

Carl Strobel v. State of Indiana (mem. dec.)

Delmar P. Kuchaes v. Public Storage, Inc. (mem. dec.)

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

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

In USA v. Bruce Jones (SD Ind., Pratt), a 23-page opinion, Judge Hamilton writes:

This appeal in a criminal case presents an unusual combination of offenses: health care fraud and unlawful possession of firearms and ammunition. Defendant Bruce Jones was both a family counselor and a firearms enthusiast who collected dozens of guns and thousands of rounds of ammunition. Jones had a prior felony conviction, so it was a federal crime for him to possess firearms and ammunition. The FBI discovered these weapons while investigating Jones for allegedly fraudulent health care billing. A federal grand jury charged Jones with three counts of possessing firearms and ammunition in violation of 18 U.S.C. § 922(g)(1) and one count of health care fraud in violation of 18 U.S.C. § 1347. The district court bifurcated the case for separate trials on the firearms charges and the health care fraud charge. The juries convicted Jones on all counts. The district court sentenced Jones to 90 months in prison on his fraud conviction and 100 months on each felon-in-possession conviction, with all terms to be served concurrently.

Jones appeals and raises four distinct issues. First, he contends that the ex parte pretrial restraint of certain life insurance policies violated his Fifth and Sixth Amendment rights. Second, he argues that the district court erroneously denied his request for new counsel during his fraud trial. Third, he contends that he was denied the opportunity to testify at his fraud trial. Fourth, he challenges the court’s sentencing guideline computation. We affirm in all respects.

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

Tuesday, December 20, 2016

Ind. Decisions - Tax Court issues opinion in Orbitz case today

In Orbitz, LLC v. Indiana Department of Revenue, a n 11-page opinion, Judge Wentworth writes:

Orbitz, LLC challenges the Indiana Department of State Revenue’s assessments of Indiana sales and innkeeper’s taxes for the January 1, 2004, through December 31, 2006, period (the “period at issue”). The matter is currently before the Court on the parties’ cross-motions for summary judgment. The Court restates the dispositive issue as whether the Department erred in issuing sales and innkeeper’s tax assessments against Orbitz based on the retail rather than the wholesale rate of Indiana hotel rooms. The Court finds in favor of Orbitz. * * *

During the period at issue, the Department erred in issuing sales and innkeeper’s tax assessments against Orbitz based on the retail rate of Indiana hotel rooms as a matter of law because the hoteliers, as the retail merchants, were liable for the taxes, not Orbitz. The Court therefore GRANTS summary judgment in favor of Orbitz and against the Department.

ILB: The last oral argument in this case was Jan. 17, 2014.

See these ILB posts from Jan. 18, 2016 ("Bill may impact pending decision re sales tax on online travel sites") and Jan. 21, 2016 ("Indiana could tax online travel sites").

Here is a long list of ILB entries re Orbitz.

Posted by Marcia Oddi on Tuesday, December 20, 2016
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 10 NFP memorandum decision(s))

For publication opinions today (1):

In Timothy L. Hahn v. State of Indiana, a 28-page opinion, Judge Brown writes:

Timothy L. Hahn appeals his conviction for aggravated battery as a class B felony. Hahn raises three issues which we revise and restate as:
I. Whether the trial court improperly denied his motion for discharge under Ind. Criminal Rule 4(B);
II. Whether the trial court abused its discretion in denying Hahn’s motion to dismiss based on Indiana’s successive prosecution statute; and
III. Whether the trial court erred in refusing Hahn’s proposed jury instructions regarding the definitions of accomplice liability and attempt.
We affirm.
NFP civil decisions today (6):

In Re: the Marriage of S.B. v. J.B. (mem. dec.)

Thomas H. Torson v. Vicky L. Torson (mem. dec.)

Raymond Hollopeter v. Sarah Hollopeter (mem. dec.)

In the Matter of J.M. (Minor Child), Child in Need of Services, and, S.M. (Mother) and J.M. (Father) v. Indiana Department of Child Services (mem. dec.)

In the Matter of Jm.K., (Minor Child in Need of Services), and A.A. (Mother) v. The Indiana Department of Child Services (mem. dec.)

Ricky L. Baker and Victoria Baker v. Fall Creek Housing Partners, LLC (mem. dec.)

NFP criminal decisions today (4):

Byron Early v. State of Indiana (mem. dec.)

John M. Smith v. State of Indiana (mem. dec.)

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

Anthony Arnell Best v. State of Indiana (mem. dec.)

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

Ind. Gov't. - "Council members void ordinance about horse manure in Orange County"

"Messy conflict over horse manure divides Amish, neighbors" was the heading to an Oct. 23, 2015 ILB post, following an Oct. 13, 2015 post headed "Horse manure in the news." Perhaps if any officials in Orange County had read some of the stories quoted in the 2015 ILB posts ...

From the Dec. 17th $$ Bedford Times-Mail, a long story republished by Indiana Economic Digest begins:

PAOLI — A ripple is starting to divide communities in Orange County — a ripple that was started because of issues raised about horse manure, left on county roads by horse-drawn vehicles driven by Amish folk and farmers.

It’s an issue that, according to county Commissioner Don Brewer, a lot of people are complaining about — especially in the area of Orangeville. On Nov. 23, the Orange County commissioners passed an ordinance requiring that waste-catching devices be attached to carriages and buggies in order to clean up the roads.

But it’s an ordinance passed before commissioners talked to any of the people in the county it affects, according to Terry McKnight, a concerned citizen, farmer and avid horseman.

He raised a lot of questions about the ordinance at an Orange County council meeting Thursday. It was up to the council to accept or reject the fines proposed by the commissioners as a punishment for people who don’t comply with the ordinance.

“What was the purpose of the ordinance?” McKnight asked. “Why was it passed without any conversations with the people it affects?”

He attended the meeting with three Amish men and other members of the public — all of whom spoke out against the ordinance.

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

Ind. Decisions - More on: Tax Court posts one today, decided Friday, another big box/dark box case

Updating this ILB post from Nov. 7, re the Nov. 4th Tax Court decision in Monroe Co. Assessor v. CVS, Ernest Rollins of the $$ Bloomington Herald-Times reported Dec. 19th in a story that begins:

The property tax battle between Monroe County and CVS Corp. will continue into another year, with one appeal case going to the Indiana Supreme Court.

Monroe County Assessor Judy Sharp said she plans to take the North College Avenue CVS store appeal to the Indiana Supreme Court after the Indiana Tax Court last month affirmed a lower tax board’s ruling that would lower the property assessments for multiple years at that store. For example, the tax board ordered the total assessment for 2009 to be reduced from $3.9 million to $2.4 million for the store, which is appealing assessments for 2009-13.

“One way or another, if the ‘Supremes’ rule in our favor or the other side, it would be put to bed,” Sharp said. “And that’s what has to happen, because right now it is all over the board.” * * *

Sharp said that of the local CVS stores that already have appealed, four cases were sent to the Indiana Tax Court for appeal, two by CVS and the other two by the county assessor. While the tax court voted to affirm the board of tax review’s decision for the College Avenue store location, Sharp said she is curious what the court will do next, when it rules on the cases in which the board of tax review sided with the county. Sharp said the county did not change its evidence or arguments in the four cases, yet the rulings were different.

Sharp said assessors around the state are fighting because they believe big-box stores need to pay their fair share of property taxes. Sharp said the battle between counties and big-box retail stores does not occur in a vacuum. In her capacity as county assessor, she said, she has worked with legislators, lawyers and government associations such as the Indiana County Assessors Association to resolve the problem, which she said will continue to snowball, especially following the Indiana Tax Court’s decision involving cases such as Meijer Stores Ltd. v. Wayne Township Assessor, which spelled out the concept of sales comparison in assessments.

Sharp said the hope is that the state Supreme Court will fast-track hearing the cases from Monroe and Howard counties, because what is decided at that level is likely to affect not only the county named in each case, but others as well.

ILB: Find all the ILB's "big box/dark box" posts here.

Posted by Marcia Oddi on Tuesday, December 20, 2016
Posted to Ind. Tax Ct. Decisions | Indiana Government

Ind. Gov't. - "Illinois, Indiana work comp law: Same words, different results"

Fascinating analysis yesterday from Matt Dietrich of PolitiFact Illinois. The intro:

One of the hottest and most divisive topics in Illinois politics for the last 18 months has been workers’ compensation reform. Gov. Bruce Rauner and business groups say the state’s workers’ compensation system is unfairly biased against employers and has led, in the most recent national report, to Illinois having the eighth highest workers’ compensation insurance rates in the nation.

Two dominant themes have emerged in the workers’ compensation debate. One is that Indiana has been a magnet for Illinois business relocations because it has very low workers’ compensation insurance rates.

The other is that Illinois has high rates because of the state’s "no-fault" workers’ compensation system. Any injury "arising out of and in the course of employment" is compensable with workers’ compensation benefits, including medical care and paid time off for recovery. In legal terms, Illinois has no-fault standard of "causation." Thus, a pre-existing condition that is aggravated in the course of work is covered under workers’ compensation.

Given all this, a statement made during an Illinois House committee hearing on a workers’ compensation reform bill might have struck an odd chord.

"The causation standard in Indiana is exactly the same as it is in Illinois," said David Menchetti, a labor attorney with the Chicago firm Cullen Haskins Nicholson Menchetti. Menchetti testified at the hearing in opposition to the bill, which would change Illinois’ causation standard to the one described in Rauner’s reform agenda.

If Indiana is attracting businesses away from Illinois because of its low workers’ compensation insurance premiums, and if Illinois’ no-fault causation standard is the cause of its high insurance rates, could Indiana really have the same legal standard as Illinois? We decided to check.

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

Monday, December 19, 2016

Ind. Gov't. North Carolina events likely couldn't happen in Indiana

There has been much in the news about how the North Carolina legislature, in reaction to the election loss by their Republican Governor, convened in special session after the election to pass bills to strip the new Democratic Governor-elect of much of his statutory power. See this earlier ILB post, "North Carolina G.O.P. Moves to Curb Power of New Democratic Governor."

Article 2, Sec. 9 of the North Carolina constitution provides:

The term of office of Senators and Representatives shall commence on the first day of January next after their election.
This means North Carolina legislators have a "lame duck" period between the election in November and winners' assumption of office in January, much like the U.S. Congress.

But Indiana's new legislators take office the day after their election in November:

Article 4, Sec. 3 of the Indiana constitution provides:

Senators shall be elected for the term of four years, and Representatives for the term of two years, from the day next after their general election.

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

Ind. Decisions - "Supreme Court Overturns Driver Welfare Traffic Stop"

Mary Osborne v. State of Indiana, decided Nov. 29th by the Supreme Court, is the subject of a Dec. 16th post at the "Driving politics" blog, The Newspaper.com. It begins:

The Indiana Supreme Court last month ruled that it is more important for police to respect the privacy of drivers than to pull them over to check whether they are in need of assistance. The justices took up the case of Mary Osborne, who on December 14, 2014 forgot to use the parking brake on her black BMW at a Marathon gas station in Fishers. The car rolled backward and briefly pinned her under the car.

The gas station attendant called 911, and Officer Jason Arnold arrived on the scene, only to watch as the BMW safely drove away. Officer Arnold did not see any traffic violations, but he decided to stop her anyway.

"I was concerned that [she] potentially could have been seriously injured, broken bones or anything," he testified. "Or something was wrong with them that started this whole thing to begin with because it's not normal behavior."

Posted by Marcia Oddi on Monday, December 19, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Security procedures for all persons entering SD Ind. federal court facilities [Updated]

From the U.S. District Court, Southern District of Indiana:

Chief Judge Jane E. Magnus-Stinson has issued a new General Order and Public Notice in the matter of court security. All individuals who work or have business in a federal courthouse in the Southern District of Indiana are advised to acquaint themselves with the information contained within the General Order and Public Notice.
Here is the new 7-page order, dated Dec. 19, 2016.

[Updated at 2:05 p.m.]

Here is a one-page Public Notice listing the prohibited items.

Notable re the 7-page policy:

Posted by Marcia Oddi on Monday, December 19, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Trust fund investigation leads to arrest of attorney"

From the Dec. 17 $$ Bloomington Herald-Times:

BEDFORD — Indianapolis attorney Kenneth Shane Service has been arrested by Indiana State Police on a warrant charging him with stealing from a trust fund.

The investigation began in Lawrence County in late September 2015, when PNC Bank filed complaints with the Department of Adult Protective Services and the prosecutor’s office, according to a news release from the ISP.

“Those complaints alleged that Kenneth Service was acting as a trust fund trustee and that large amounts of fraudulent loss had appeared in trust fund bank accounts that were under his management,” the news release reads.

The owners of the accounts weren’t aware of the missing funds until they were notified by Detective Stacy Brown of the ISP.

Kenneth Shane Service is listed as "Suspended" on the Indiana Roll of Attorneys.

Posted by Marcia Oddi on Monday, December 19, 2016
Posted to Indiana Courts

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 (0):

NFP criminal decisions today (4):

Tyrone D. Payton v. State of Indiana (mem. dec.)

Michael D. Hickingbottom v. State of Indiana (mem. dec.)

Christa Spinks v. State of Indiana (mem. dec.)

Carlos D. Bell v. State of Indiana (mem. dec.)

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

Ind. Decisions - Transfer list for week ending December 16, 2016 [Updated at 1:37 p.m.]

Here is the Clerk's transfer list for the week ending Friday, December 16, 2016. It is one page (and 17 cases 18 cases) long. [Updated, court substituted new list]

One transfer was granted last week:

Posted by Marcia Oddi on Monday, December 19, 2016
Posted to Indiana Transfer Lists

Ind. Gov't. - "Carrier blames job cuts on new federal rules, but regulatory burden is tough to measure"

This is a great effort by James Briggs of the Indianapolis Star, in which he tries to pin down the "53 new regulations" which reportedly had forced Carrier's effort to move its west-side factory to Mexico. A few quotes from the lengthy story:

United Technologies officials say Trump's pledge to cut through the Obama administration's red tape gave them confidence to keep building furnaces in Indianapolis.

That assertion, promoted by Trump and Pence, raises questions about how many federal rules are affecting manufacturers such as Carrier and how great of a burden they pose. There are no simple answers.

Experts say regulations do indeed impose billions of dollars of costs on heating and cooling manufacturers — but not necessarily enough financial hardship to cause those companies to shut down plants.

Carrier declined to comment on regulations. Trump, citing numbers often used by Carrier, offered at least a partial explanation during his Dec. 1 visit to celebrate the Carrier deal.

“Since about six years ago, 260 new federal regulations have passed, 53 of which affect this plant," Trump said while standing in Carrier's west-side factory. "Fifty-three new regulations. Massively expensive and probably none of them amount to anything in terms of safety or the things that you’d have regulations for.”

The numbers Trump cited have been circulating since United Technologies announced it would shutter its Indiana factories. Jim Schellinger, the president of the Indiana Economic Development Corp., used them in a letter he wrote to U.S. Sen. Joe Donnelly in March. Schellinger relayed concerns that Robert McDonough, the president of UTC Climate, Controls & Security, had expressed to Pence about those 53 regulations.

McDonough, while meeting with Pence in March, "began his comments by telling the Governor that federal regulations were the significant driver of the board’s decision to relocate 2,100 jobs to Mexico," Schellinger said in his letter.

A few paragraphs later, Schellinger drove home the point.

"Please forgive me for being redundant," he said, "but Mr. McDonough stated several times that, in fact, extensive federal regulations were the leading factor" in the company's move.

IndyStar could not find 53 regulations that would have driven United Technologies to relocate Indiana jobs to Mexico. An IEDC spokeswoman referred questions about a possible list of regulations to the company, which did not provide one.

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

Ind. Gov't. - Hoosier Lottery denies access to details, including cost, of contract with crooner; possibly similar deal in Florida leads to resignations

Indiana Gaming Insight's final issue of 2016 ($$) features its efforts to obtain details of a contract between the Hoosier Lottery and:

... Josh Kaufman, the Hoosier resident who won the sixth season of the popular NBC show The Voice, ... teaming up on the release of a new holiday song, written by Kaufman, called Home for the Holidays.

The song is being played in commercials for the Hoosier Lottery’s Holiday Scratch-off campaign, with the Lottery hoping that it will catch on like the still-recognized Hoosier Holiday Millionaire ditty dating back a few decades.

The story continues [ILB emphasis]:
We [Ind. Gaming Insight] wanted to bring you details about the contract, but the Hoosier Lottery has denied our request for a copy or any of the specific details we inquired about (including how much it cost the Lottery) claiming that “the contract with Josh Kauffman [sic] qualifies as a ‘trade secret’ and therefore the details cannot be released.” * * *

We appealed the initial denial to the Lottery and were told that the contract “is not maintained by the Hoosier Lottery but was entered into by a subcontractor of the Lottery (Mortenson Safer Kim) and J.A. Kaufman Inc” (recall that Kaufman talked about working “with the Hoosier Lottery” in creating the song, in a statement was released by the Lottery, not by his or a contractor’s PR firm).

Of course, numerous rulings have found that the State cannot interpose a third-party contractor exercising the authority of the state to avoid disclosure — and the Lottery seemed to be clear at the time it entered into the private management integrated services agreement (not quite part of this contract) that it would favor full transparency.

Subcontractors are specifically included in the management agreement and must turn over documents to the Lottery.

But the Lottery’s denial of our request to bring you the details included a memo from Kaufman’s management agency claiming that “we cannot disclose privately contracted fees without adversely affecting our ability to negotiate future agreements.” And while the management agency cites Indiana court cases on trade secrets with respect to private entities, there is no reference to trade secrets as part of agreements with state entities involving (arguably) state funds, which carry with it different obligations and public policy arguments.

The Lottery would not even provide us with a copy of the contract redacted to withhold details that they currently contend are confidential. The Access to Public Records Act, however, specifically mentions that a document cannot be withheld in full if only part of it is claimed to be confidential.

The Lottery’s decision to designate the contract amount as containing “trade secrets” and “confidential financial information” that is “prohibited” from disclosure does not seem to comport with the public policy behind both the APRA and state procurement law, which calls for the release of detailed financial proposals submitted by successful contractors, as well as the contracts and substantive responses.

Meanwhile, the Orlando Sentinel reported Dec. 17th that the "Visit Florida" CEO and two other executives had resigned following news of the cost of a possibly similar promotion deal, with rapper Pitbull. A few quotes from the story:
"Visit Florida" CEO Will Seccombe agreed to resign Friday and two other top executives with the tourism promotion group left their jobs in the wake of revelations the agency paid Miami rapper Pitbull $1 million to market tourism in the state.

Gov. Rick Scott called for Seccombe resignation and a series of transparency measures in a letter to Visit Florida board chairman William Talbert. * * *

Pitbull, whose real name is Armando Christian Perez, posted his 2015 contract with the state on Twitter on Thursday, revealing he was paid $1 million in taxpayer dollars to promote Florida in social media posts, at his concerts and in a music video called “Sexy Beaches.”

The move came two days after House Speaker Richard Corcoran, R-Land O’Lakes, filed suit in Leon Circuit Court against PDR Productions, Pitbull’s management company, to unveil contract details, which had been kept secret for more than a year.

Scott’s letter also called for a series of measures aimed at increasing transparency at Visit Florida. The group should publish reports on its spending, return on investment statistics, employee salaries, audits and contract and vendor details, he wrote.

Visit Florida officials announced the one-year deal with Pitbull in September 2015. When the Orlando Sentinel and other news media outlets asked for the contract, nearly all of it was redacted.

Visit Florida officials said Pitbull had declared details like how much he was paid, his duties under the contract and even his agent’s name trade secrets exempt from Florida’s public record laws, even though Visit Florida receives tens of millions of dollars in tax money every year.

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

Courts - "‘Loser pays’ rule in Idaho court system could make justice available only to those with deep pockets"

That is the headline from a story in The Idaho Spokesman-Review, reported by Betsy Z. Russell. The long story begins:

BOISE – The Idaho Supreme Court has launched the state’s entire court system on a new track that might be called “loser pay” – you lose a case, you pay the other side’s attorney fees.

No other state in the nation has gone this route, and the Supreme Court’s 3-2 ruling, issued this fall, has Idaho’s legal community in an uproar.

“Being liable for the other party’s attorney fees, that could be a huge, huge reason not to bring a lawsuit,” said Shaakirrah Sanders, associate professor of law at the University of Idaho. In particular, she said, it would make small businesses or individuals less likely to sue deep-pocketed large businesses.

Justice Roger Burdick, in his dissent, said the ruling would inhibit access to justice and “tilt the table even further toward moneyed interests in our courts.”

The justices set a March 1 start date for the new attorney-fees rule. That gives the Idaho Legislature, which convenes in January, a chance to change the law before it takes effect – and several attorney-lawmakers say they’re already looking at possible changes. * * *

The “loser pays” approach conflicts with the fundamental “American rule” regarding attorney fee awards: That all parties in court cases pay their own legal fees unless a specific statute requires otherwise.

The rule that’s been in effect in Idaho since 1979 requires that losers pay the winning side’s attorney fees only if the case, or the defense, was “frivolous” and without basis.

The new standard set by Idaho’s highest court would tell Idaho judges to award attorney fees to the prevailing party “when justice so requires” – a standard that has lawyers stumped.

“None of us know what ‘when justice so requires’ means,” said Coeur d’Alene attorney Peter Smith, who led a recent continuing legal education session for area lawyers about the decision.

The story includes a link to the 22-page opinion in Hoffer v. Shappard.

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

Courts - Pre-trial diversion programs too costly for many otherwise eligible [Updated]

"After a Crime, the Price of a Second Chance" was the headline to a long, Dec. 12th story in the NY Times, reported by Shaila Dewan and Andrew W. Lehren. It is part of a series, "No Money, No Mercy," that examines "how money undermined reforms to America’s criminal justice system." A few quotes from the story:

As a first-time offender, Ms. Willis, 52, qualified for a big break: a program [in Atlanta] called pretrial intervention, also known as diversion. If she took 12 weeks of classes, performed 24 hours of community service and stayed out of trouble, her case would be dismissed and her arrest could be expunged, leaving her record clean.

Diversion is not uncommon. Last year, Rebecca Horting, a 36-year-old nurse in Topeka, Kan., was offered a similar deal for an offense that caused far greater harm. She was charged with reckless battery and texting while driving after she hit a girl on a bicycle, causing brain damage and the loss of a leg.

Both women did what was required of them, yet their cases took different paths. The reason: money.

Ms. Horting was able to pay $1,138 in fees and is on track to have her case dismissed.

Ms. Willis, who owed $690, had a harder time. When she paid all but $240, her case was sent back to court for prosecution. * * *

Though few people have heard of diversion, the practice is increasingly being embraced as a way for the criminal justice system to save people from itself.

Diversion is intended to relieve overburdened courts and crowded jails, and to spare low-risk offenders from the devastating consequences of a criminal record. It mostly applies to nonviolent cases that make up the vast majority of crimes — offenses like shoplifting, drug possession and theft. There are now diversion programs in almost every state.

But an examination by The New York Times found that in many places, only people with money could afford a second chance. Though diversion was introduced as a money-saving reform, some jurisdictions quickly turned it into a source of revenue.

Prosecutors exert almost total control over diversion, deciding who deserves mercy and at what price, The Times found. The prosecutors who grant diversion often benefit directly from the fees, which vary widely from town to town and can reach $5,000 for a single offense. In a country where 27 million households make less than $25,000 a year, even $500 can be prohibitive.

Diversion, interviews and case records show, can be revoked for failure to pay, or never even offered to defendants deemed too poor to afford it. A prosecutor in Ohio said he rejected applicants if he thought they wouldn’t be able to pay restitution [ILB: "restitution" and "fees" are not the same] within a time limit — one that he imposed.

“To tell somebody that if you can pay for this, you can get your charges dismissed, but if you are poor you are going to go through the system? That’s completely unfair,” said Mark Kammerer, who runs diversion programs for the Cook County state’s attorney in Chicago, where defendants are not charged a fee.

ILB: What about Indiana? Indiana's program is not among those called out in the NYT story. The ILB has located this example of the pre-trial diversion agreement from Vanderburgh County. It mentions both fees and restitution. Monroe County has a FAQ on pretrial diversion, which includes information court costs and fees.

[Updated at 10:54 a.m.]
Thanks to Hamilton County Deputy Prosecutor Eric Overpeck, who just sent this note:
I saw your post about pretrial diversion and fees. The COA held in Mueller v. State, 837 N.E.2d 198, that not allowing a defendant on pretrial diversion based on an inability to pay violated the 14th Amendment. I work at the Hamilton County Prosecutor's Office, and the way we handle it is that you can do extra community service in lieu of paying the fees if you are indigient. I attached Mueller for your review. Keep up the good work. Love the blog!

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

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/19/16):

Next week's oral arguments before the Supreme Court (week of 12/26/16):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/19/16):

Monday, December 19 Next week's oral arguments before the Court of Appeals (week of 12/26/16):

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

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


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

Posted by Marcia Oddi on Monday, December 19, 2016
Posted to Upcoming Oral Arguments

Sunday, December 18, 2016

Ind. Gov't. - More on "Ball State keeps ex-president's email secret" [Updated]

Updating this worth re-reading long ILB post from March 21, 2016, quoting a story from Seth Slabaugh of the Muncie Star-Press, reporter Slabaugh has a new lengthy and informative story in the Sunday Muncie Star-Press, headed, "Why BSU president left, why it matters." It begins [ILB emphasis added]:

MUNCIE — Former Ball State University President Paul Ferguson and the chairman of the university's board of trustees began butting heads early in Ferguson's short-lived presidency over cronyism, politics, a welcome reception and more, The Star Press has learned.

The unhealthy relationship culminated in Ferguson's resignation last January, only 18 months after he took office. The conflict centered on allegations that the chairman micromanages the university. It fragmented the board. And some wonder if it could harm the school's chances of attracting a strong leader as its next president.

Eleven months after Ferguson's sudden, unexplained resignation, a presidential search committee finally has forwarded the names of five finalists to the board for upcoming interviews and a selection.

Board chairman Rick Hall recently dispelled rumors that he is one of those five finalists, though he said he was encouraged to run by dozens of constituents.

While some alumni are grumbling that the university has lost momentum, seen too many administrative turnovers/vacancies and lacked a brand since longtime President Jo Ann Gora left 30 months ago, Hall said in a recent interview the school is performing very well based on metrics including enrollment, affordability, fundraising and helping students find jobs.

Ball State has done all it could to keep the reasons Ferguson left a secret. The board's severance contract with him includes a mutual non-disparagement clause — a protection of reputation clause — a confidentiality clause and a clause controlling public statements by Ferguson and the board. BSU officials also denied the media access to emails, text messages, letters and so forth related to the reasons for the resignation, asserting those records either didn't exist or were not a public record.

Ferguson was viewed as a faculty-friendly president. Several weeks after the resignation, a Faculty Council committee wrote that faculty were "encouraged," "revived" and "reinvigorated" by Ferguson's moves toward an "open, collaborative, communicative campus." The lack of transparency over his departure caused some faculty to express a lack of confidence in the board of trustees as well as concern about the school's ability to hire another top-flight candidate to serve as the next president.

But in the end, with Hall's help, the University Senate approved a resolution "supporting a campus community united in its mission" and elected a new senate chairman who said he has "great pride and respect for our institution" over a reform candidate who had compared the board of trustees to the politburo.

The Star Press has obtained an email written by Ferguson that at long last provides a peek behind the curtain into his heretofore unexplained resignation. Written in March of 2015 from Ferguson's university email account, the digital message was received by senior university officials. Hall's supporters say it paints an inaccurate, one-sided portrait of the chairman. Hall himself — a partner at Indianapolis-based Barnes & Thornburg, one of the 100 largest law firms in the country — says he is legally prohibited from commenting on it. Ferguson, now the dean of a private religious school in his native Southern California, didn't return a phone message from The Star Press.

That is just the start of the very long story.

[Updated 12/19/16] The Star-Press has published a letter in response from the Ball State Board of Trustees. Access it here.

Posted by Marcia Oddi on Sunday, December 18, 2016
Posted to Indiana Government

Friday, December 16, 2016

Ind. Gov't. - Applications available to fill upcoming vacancy on IURC

Following on the naming of a new member of the Utility Regulatory Commission in September, this afternoon the IURC Nominating Committee has announced that it is accepting applications to fill a the vacancy created by the retirement of Commissioner Carol Stephan, whose unexpired term will end January 31, 2020.

There is no explanation as to when Ms. Stephan retired. And there is no clear information as to whether the new vacancy must be filled by a R, D, or I. (Statute requires the IURC to be bipartisan.) There is, however, reference to a resolution concerning how party affiliation is to be determined.

From the news release:

Indianapolis – The Indiana Utility Regulatory Commission Nominating Committee is soliciting applications from persons interested in filling one current vacancy on the Indiana Utility Regulatory Commission (IURC) created by the retirement of Commissioner Carol Stephan.

Applications will be accepted today through close of business on Thursday, January 5, 2017. Applications must be received in the Governor’s Office by close of business on Thursday, January 5, 2017. After the close of the application period, the Nominating Committee will schedule and conduct a public meeting to interview applicants on a date to be determined. Following Governor-elect Eric Holcomb’s inauguration, the Nominating Committee will present then-Governor Eric Holcomb with a list of three qualified candidates from which he will select an individual to fill the remainder of Commissioner Stephan’s term. Commissioner Stephan’s term expires January 31, 2020.

Applicants are encouraged to review the Party Affiliation Resolution posted here. This Resolution identifies how the Nominating Committee will determine an applicant’s party affiliation.

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

Applications for the position may be obtained by emailing boardsandcommissions@gov.in.gov, by calling 317-232-4567, by hard copy in Statehouse, Room 206, or from www.in.gov/gov/2682.htm. Completed applications must be returned to: Allen Paul, Chair, IURC Nominating Committee, c/o Office of the Governor, Statehouse, Room 206, Indianapolis, IN 46204. To be considered timely, applications must be received in the Governor's Office and not simply postmarked by close of business on Thursday, January 5, 2017.
More. This earlier release, from the IURC site, indicates that Ms. Stephan announced on Nov. 30th that she would retire effective Jan. 1, 2017. This page has photos of the five commissioners, but does not indicates who is R, D, or I.

Posted by Marcia Oddi on Friday, December 16, 2016
Posted to Indiana Government

Ind. Decisions - Supreme Court decides two today

In State of Indiana v. Frank Hancock, a 13-page, 4-1 opinion, Justice Rucker writes:

Concluding the burglary statute in this state is not substantially similar to the burglary statute of a sister jurisdiction, the trial court dismissed two counts of an information charging the defendant as a serious violent felon. Reaching the opposite conclusion, we reverse the trial court’s judgment. * * *

The State then appealed the dismissal of the two SVF counts contending the trial court misinterpreted the law when it determined that Hancock’s prior conviction for residential burglary in Ohio was not substantially similar to the elements of residential burglary in Indiana. Affirming the trial court, the Court of Appeals declared “[a]lthough the statutes might seem substantially similar at first glance, when the same factual situation is applied to both statutes, two different legal outcomes are possible based on whether the incident occurred in Ohio or Indiana.” State v. Hancock, 49 N.E.3d 1084, 1086 (Ind. Ct. App. 2016). Having previously granted transfer, we now reverse the trial court’s judgment. * * *

A serious violent felon includes a person who has been convicted in another jurisdiction in which the elements of the crime for which the conviction was entered are substantially similar to the elements of a serious violent felony in this jurisdiction. We conclude the elements of Ohio’s second degree felony burglary statute are substantially similar to the corollary elements of Indiana’s level 4 felony burglary statute. The trial court thus erred in dismissing the informations charging Hancock as a serious violent felon. We therefore reverse the judgment of the trial court.

Rush, C.J., and Massa and Slaughter, JJ., concur.
David, J., dissents with separate opinion. [that appears at p. 13, concluding]
Because Indiana requires a higher showing to constitute a burglary; that is, a felony or theft, I do not believe that the two statutes are substantially similar. Accordingly, I believe we should affirm the trial court.

In Kyle Bess v. State of Indiana, a brief 2-page, 5-0, per curiam opinion on a petition for rehearing, concluding:
Bess is correct that the record reflects he solicited his niece to sit on his lap and she declined, not that he “had her sit on his lap.” See Tr. 48, 51. This factual difference does not alter our original decision. We grant rehearing to correct the facts as reflected herein. In all other respects the original opinion is affirmed.

Posted by Marcia Oddi on Friday, December 16, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

In The Board of Commissioners of Union County, Indiana v. Brandye Hendrickson, in her official capacity as Commissioner of the Ind. Dept. of Transportation, and the State of Indiana, a 20-page opinion, Judge Barnes writes:

The Board of Commissioners of Union County (“the County”) appeals the dismissal of its complaint against Brandye Hendrickson, in her official capacity as Commissioner of the Indiana Department of Transportation (“INDOT”), and INDOT itself (collectively “INDOT”). We reverse and remand.

The restated issues before us are:

I. whether this court is reviewing the dismissal of a complaint under Indiana Trial Rule 12(B)(6) or the granting of summary judgment under Indiana Trial Rule 56;

II. whether the trial court properly concluded that the County lacked standing to seek a declaratory judgment against INDOT; and

III. whether the trial court properly concluded that the County lacked standing to seek an injunction against INDOT. * * *

We have reviewed this case as a Trial Rule 12(B)(6) dismissal of a complaint, not a granting of summary judgment, and accordingly have disregarded Parker’s affidavit in considering the merits of the trial court’s ruling. We hold that the trial court erred in dismissing the County’s action for declaratory judgment and injunctive relief against INDOT and that the County has standing to pursue those claims. We reverse and remand for further proceedings consistent with this opinion.

In Duke Energy of Indiana, LLC v. City of Franklin, Indiana, a 24-page opinion, Judge Bradford writes:
Appellee-Defendant the City of Franklin, Indiana (“the City”), in cooperation with the State, has proposed a plan to revitalize and improve a stretch of Indiana State Road 44 (“SR 44”) that serves a major east-west artery (“the Traffic Plan”). The Traffic Plan includes, inter alia, a proposal to connect the three-way intersection of County Club Lane and Longest Drive (“the Intersection”) to SR 44. Appellant-Plaintiff Duke Energy of Indiana, LLC (“Duke”) holds a utility easement in the land underneath the proposed Intersection expansion and requested a preliminary injunction to prevent the City from completing the expansion of the Intersection, contending the City lacks sufficient property rights to allow it to do so and that the expansion would impermissibly interfere with its easement rights. The trial court denied Duke’s request for a preliminary injunction, and Duke now appeals. Because we conclude that Duke lacks standing to challenge the City’s property interests in the real estate at issue and that the trial court did not abuse its discretion in concluding that Duke does not have a reasonable probability of success at trial, we affirm. * * *

We conclude that Duke, as a mere utility-easement holder, lacks standing to maintain an ejectment action against the City on the basis that the City does not have sufficient property rights to expand the Intersection. Moreover, we conclude that the trial court did not abuse its discretion in determining that Duke failed to show a reasonable likelihood of success at trial. Consequently, the trial court did not abuse its discretion in denying Duke’s request for a preliminary injunction against the City. We affirm the judgment of the trial court.

In Danielle Green v. State of Indiana , a 33-page opinion, Judge Kirsch writes:
Following a jury trial, Danielle Green (“Green”) appeals her conviction and sentence for murder, a felony. She raises four issues that we consolidate and restate as:
I. Whether the trial court abused its discretion when it excluded certain testimony from a defense psychologist and when it admitted evidence from an Indiana State Police crime scene investigator concerning blood spatter;
II. Whether the trial court abused its discretion when, in sentencing Green, it gave no mitigating weight to her claims that she was a victim of domestic violence; and
III. Whether Green’s sixty-year sentence is inappropriate.
We affirm.
NFP civil decisions today (3):

Carl Johnson v. Corrections Officer Captain Blattner and Corrections Officer Schell (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of Ti.C., Tr.C., and Th.C. (Children) and D.C. (Mother) and R.C. (Father); D.C., and R.C. v. The Ind. Dept. of Child Services (mem. dec.)

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

NFP criminal decisions today (6):

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

Marquis Lewins v. State of Indiana (mem. dec.)

Jeremias Manriquez v. State of Indiana (mem. dec.)

Tommie Payne, IV v. State of Indiana (mem. dec.)

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

Javier A. Simental v. State of Indiana (mem. dec.)

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

Ind. Courts - "Civil rights attorneys petition state high court to address deficiencies"

Updating yesterday's post, Virginia Black reports today in the South Bend Tribune in a story that begins:

Two civil rights attorneys call for Indiana’s Supreme Court to oversee the state’s public defender system on the heels of a report that questions the “Indiana Model” of hit-and-miss legal representation of poor people.

Indianapolis lawyer Michael Sutherlin and Fort Wayne lawyer David Frank, each of whom has filed a class-action federal lawsuit involving public defenders in the last year, planned to file a “petition for rule-making” today. The petition asks the state high court to assess the issues highlighted by the report and ensure that training, payment systems and oversight of the state’s 92 counties are not only consistent but also meet constitutional requirements.

The 200-page report by a national not-for-profit, the Sixth Amendment Center, was prepared for the Indiana Indigent Defense Study Advisory Committee. That committee includes representatives from the General Assembly, the Supreme Court, the state bar and judges associations, the Indiana Public Defender Council and Indiana Prosecuting Attorneys Council.

“The Right to Counsel in Indiana” highlights a number of issues, with inadequate funding and oversight a common theme.

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

Ind. Gov't. - "Through the door, and into the lobby: Ex-lawmakers' cooling-off period too short"

That is the heading to the editorial today in the Fort Wayne Journal Gazette:

It is illegal for anyone who serves in the Indiana legislature to become a registered lobbyist for at least a year after his or her term expires.

That law, though, didn’t stop two legislators from walking through the metaphorical revolving door between public service and private policy work this week.

Sen. Carlin Yoder, R-Middlebury, announced he would not be running for re-election this fall because he wanted to spend more time at home with his family. This week, the Indianapolis-based lobbying firm Corydon Group announced Yoder will be joining the group as vice president in January.

After 12 years of service, Brent Steele, R-Bedford, also retired from the Senate this year. And this week, the Indianapolis Star reported Steele, too, will be starting a new job in January – as executive director of the Vapor Association of Indiana, an organization that will be lobbying against repeal of a bill Steele helped pass that effectively shut many vaping companies out of the Indiana market. During the nearly certain legislative battle next year, the Vapor Association will be speaking for the firms that are allowed to do business in the state.

According to a release from the Corydon Group, “Senator Yoder’sdeep knowledge of the public policy process will serve our clients very well.” The announcement added that “Mr. Yoder will not be providing legislative lobbying services during his one-year ‘cooling off’ period from the Indiana Senate.” And Steele “intends to honor the rule by hiring an outside lobbying firm to represent the association at the General Asembly,” the Star reported.

As long as there are ex-legislators in need of jobs, there will be at least the possibility of a conflict between their years of public service and their new private roles. Julia Vaughn, policy director for Common Cause Indiana, the situation points to “the weakness in Indiana’s ethics law.”

Though neither former senator will be registered as a lobbyist next year, “clearly, they’ll be using their relationships and connections that they made in state government,” Vaughn said. The law allows legislators to do this as soon as they leave office, Vaughn explains, because it makes a distinction between individuals who register as lobbyists, and “employer-lobbyists.” Thus, Steele can hire and pay others to lobby even though he himself can’t be a registered lobbyist in 2017.

If the legislature really wants to have a meaningful “cooling-off period” before lawmakers walk through the revolving door, it could forbid them from immediately joining firms engaged in lobbying in any capacity. A legislature really serious about preventing the possibility ex-members could quickly trade on the influence they acquired in public service would also set the no-lobbying-related employment period to at least two years. At least 34 states require a cooling-off period, according to the National Conference of State Legislators, and Kentucky and seven other states already have set that period at two years.

Posted by Marcia Oddi on Friday, December 16, 2016
Posted to Indiana Government

Courts - "Gun Control Advocates Find a Deep-Pocketed Ally in Big Law"

That was the headline to a long Dec. 7th NY Times Dealbook story by Jessica Silver-Greenberg and Ben Protess. The story begins:

In Congress and in the Supreme Court, the gun lobby has racked up some crucial victories in recent years. It won again last month when Donald J. Trump, buoyed by the lobby’s money and support, secured an upset victory in the presidential election.

On the defensive, gun control advocates are now quietly developing a plan to chip away at the gun lobby’s growing clout: Team up with corporate law firms.

After the Orlando nightclub massacre and a string of other mass shootings, Paul, Weiss, Rifkind, Wharton & Garrison; Covington & Burling; Arnold & Porter; and four other prominent law firms formed a coalition with gun control groups that until now have worked largely on their own. Together, the firms are committing tens of millions of dollars in free legal services from top corporate lawyers who typically bill clients $1,000 an hour or more.

This effort is highly unusual in its scale. Although law firms often donate time to individual causes, and some firms have worked on gun control on a piecemeal basis, the number and the prominence of the firms involved in the new coalition are unheard-of for modern-day big law. Other firms are expected to join in the coming months.

It is also the first time in decades that rival corporate law firms, more accustomed to beating back regulation than championing it, have joined forces to file litigation nationwide around such a polarizing social issue as guns. The effort harks back to the civil rights era, when President John F. Kennedy summoned 250 top lawyers to the White House and enlisted their help in fighting segregation.

Just as significant, the gun coalition plans to pursue new legal strategies to avoid some previous pitfalls.

Rather than fighting the political headwinds, the coalition is focusing on courts and state regulatory agencies, among the few places where they might still gain some traction.

Check the story itself for much more.

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

Thursday, December 15, 2016

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

For publication opinions today (0):

NFP civil decisions today (1):

M.S. v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (4):

Robert W. Adams v. State of Indiana (mem. dec.)

Larry Crume v. State of Indiana (mem. dec.)

Trevis Stokes v. State of Indiana (mem. dec.)

L.C. Strong v. State of Indiana (mem. dec.)

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

Ind. Courts - "Attorneys petition Indiana Supreme Court to write public defender rules"

Fatima Hussein reports this morning for the Indianapolis Star in a story that begins:

Two Indianapolis attorneys are determined to change the way public defense operates in Indiana — and today they're taking their fight to the Indiana Supreme Court.

Mike Sutherlin and David W. Frank filed a petition to the court on Thursday, to compel the court to address issues plaguing the state's public defender system. They say the system is woefully underfunded, and the Sixth Amendment right to a fair and speedy trial is routinely violated in Indiana. Sutherlin and Frank were expected to outline their fight at a news conference outside the statehouse on Thursday morning.

The 16-page document, filed on behalf of Allen, Johnson and Vigo county residents Jauston Huerta, Calvin Wilson and Kenneth Alford, requests that the court author a series of rules, procedures and standards which would ensure, at a minimum, constitutional representation under the Sixth Amendment to individuals who rely upon the public defender system.

The three men, the petition states, all received inadequate representation from their assigned public defenders when they were moved through the criminal court system. They are also plaintiffs in separate lawsuits against their respective counties.

See also this Oct. 8, 2015 ILB post, headed "Class action lawsuit to be filed over inadequate Johnson County public defense system," and this Oct. 9, 2015 followup, which included this quote from the Daily Journal:
They [Sutherlin and Little] also filed a separate petition with the Indiana Supreme Court, asking the justices to declare that the way Johnson County is offering public defender services is unconstitutional, Little said. And if this lawsuit doesn’t prompt statewide change, more lawsuits could be filed in other counties, he said.

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

Law - "North Carolina G.O.P. Moves to Curb Power of New Democratic Governor" and the Court

This Dec. 6th ILB post was headed "North Carolina Gov. McCrory finally concedes defeat," 27 days after the election. But that is not the end of the story. Trip Gabriel reports today in the NY Times:

RALEIGH, N.C. — Republicans in the North Carolina legislature on Wednesday took the highly unusual step of moving to strip power from the incoming Democratic governor after a bitter election that extended years of fierce ideological battles in the state.

After calling a surprise special session, Republican lawmakers who control the General Assembly introduced measures to end the governor’s control over election boards, to require State Senate approval of the new governor’s cabinet members and to strip his power to appoint University of North Carolina trustees.

Republicans also proposed to substantially cut the number of state employees who serve at the governor’s pleasure, giving Civil Service protections to hundreds of managers in state agencies who have executed the priorities of Gov. Pat McCrory, a Republican.

If the measures pass the legislature, where Republicans hold large majorities in both chambers, and Mr. McCrory signs off, they would significantly hamstring the new governor, Roy Cooper, who takes office in January. Mr. McCrory conceded the race last week after a nearly monthlong challenge of the vote, a hard-fought race that followed four years in which unified Republican control of state government brought a wave of restrictions on voting access, abortion and gay rights.

A Nov. 15th story in ThinkProgress, reported by Billy Corriher, begins:
Even as Donald Trump won the state, North Carolina voters chose last week to elect a new liberal majority to the state supreme court. The new North Carolina Supreme Court would provide a check on the power of the GOP’s veto-proof super-majority in the state legislature. But the legislature has come up with a scheme that would add two seats to the court and allow Gov. Pat McCrory (R) to appoint two justices — maintaining the conservative majority.
As Rick Hasen tries to put it all together yesterday in his Election Law Blog. And David A. Graham has this story in The Atlantic.

ILB: In 1941 the Indiana General Assembly, unhappy with the incoming Governor, enacted a number of laws taking various agencies out from under the authority of the Governor and placing the responsibility for heading them under other state elected officials, including the Secretary of State, Treasurer, Auditor, and Attorney General. These laws were declared unconstitutional by the Indiana Supreme Court in the case of Tucker v. State, 218 Ind. 641 at 697-699 (Filed June 26, 1941. Rehearing denied July 11, 1941). For more on this, see this Jan. 10, 2005 ILB entry. See also "Maintaining the Balance of Power between the Legislative and Executive Branches of Indiana State Government post 1941," available here.

Posted by Marcia Oddi on Thursday, December 15, 2016
Posted to General Law Related

Ind. Decisions - Interesting 7th Circuit decision involving divorce and federal Wiretapping and Electronic Surveillance Act

In Barry Epstein v. Paula Epstein (ND Ill.), a 12-page opinion (including a separate concurring opinion), Judge Sykes writes [ILB emphasis in bold]:

Barry Epstein sued his estranged wife, Paula, alleging that she violated the federal Wiretapping and Electronic Surveillance Act by intercepting his emails. The action arises from the couple’s acrimonious divorce. Paula accused Barry of serial infidelity, so in discovery Barry asked her for all documents related to that accusation. Paula complied and produced copies of incriminating emails between Barry and several other women. Her discovery response spawned this satellite litigation (the divorce action is still pending). Barry alleges that Paula violated the Wiretap Act by surreptitiously placing an auto-forwarding “rule” on his email accounts that automatically forwarded the messages on his email client to her. He also claims that Paula’s divorce lawyer violated the Act by “disclosing” the intercepted emails in response to his discovery request. The district judge dismissed the suit on the pleadings.

We affirm in part and reverse in part. The complaint doesn’t state a Wiretap Act claim against Paula’s lawyer. The lawyer can’t be liable for disclosing Barry’s own emails to him in response to his own discovery request. The allegations against Paula, on the other hand, technically fall within the language of the Act, though Congress probably didn’t anticipate its use as a tactical weapon in a divorce proceeding. * * *

[p. 11] POSNER, Circuit Judge, concurring. I agree with Judge Sykes that under the existing understanding of the Federal Wiretap Act Paula Epstein violated it if she searched her husband’s computer for evidence of adultery by him that she could use against him in divorce proceedings, without having obtained his consent to her accessing his computer. I write separately to raise a question that neither party addresses and is therefore not before us on this appeal— whether the Act should be thought applicable to such an invasion of privacy; for if not the husband’s suit should be dismissed.

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

Ind. Gov't. - "Former lawmaker lands job with vaping group that benefited from his vote"

That is the headline to this story posted last evening on the IndyStar site by Tony Cook, whose lengthy story begins:

During his final weeks as an Indiana lawmaker, Sen. Brent Steele voted in favor of a controversial vaping bill that allowed only a handful of companies to make e-liquid sold in Indiana.

Now, the recently retired lawmaker has taken a new job representing those companies.

Steele has been hired as executive director of the Vapor Association of Indiana, which represents the few companies licensed to manufacture electronic smoking device liquid under Indiana's stringent new law. The Bedford Republican is scheduled to start the job Jan. 1.

Steele, who did not seek re-election in November, said he sees no ethical issues with his new position.

“My job will be to make sure the association is run professionally and that we continue to assure the public that we have a safe product out on the shelves,” he said.

But the vapor association also will be actively lobbying at the Statehouse during the upcoming legislative session, raising questions about how Steele will follow a rule that prohibits lawmakers from lobbying their colleagues for one year after leaving office.

That restriction is intended to prevent lawmakers from trading on their public service for private financial gain.

Steele said he intends to honor the rule by hiring an outside lobbying firm to represent the association at the General Assembly.

Julia Vaughn, policy director for government accountability group Common Cause Indiana, said the arrangement "reeks of impropriety.”

“It’s walking up right to the ethics laws and getting your toe just about as close as you possibly can,” she said.

Steele's new job places him at the center of a coming showdown over the new law. Legislative leaders have pledged to revisit it in response to a storm of criticism from dozens of companies that were effectively shut out of the Indiana market after operating here for years.

More from the story:
The new law — originally passed in 2015 and revised in March — effectively made a single security firm the gatekeeper of the industry. That security firm, Lafayette-based Malhaupt’s Inc., then approved only six companies for licenses.

The legislation drove companies that couldn't get licenses out of Indiana, and retailers have reported sharp increases in prices. The unusual nature of the legislation prompted the FBI to open an investigation into possible wrongdoing. * * *

The vapor association’s members include the six companies that received licenses and Malhaupt’s. It was originally set up by Zak Laikin, whose Indiana Vapor Company was the leading force behind the legislation.

Steele said he would be replacing Laikin as the association’s leader.

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

Wednesday, December 14, 2016

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

For publication opinions today (1):

In In the Matter of the Marriage of: Mark A. Del Priore v. Jill E. Del Priore , a 26-page opinion, Judge Kirsch writes:

Mark A. Del Priore (“Husband”) appeals the trial court’s decree of dissolution (“the Decree”) of his marriage to Jill E. Del Priore (“Wife”) and its distribution of the marital estate. Husband raises several issues on appeal, which we restate as:

I. Whether the trial court abused its discretion in its valuation of the TD Ameritrade account because the trial court’s findings were not supported by the evidence;

II. Whether the trial court abused its discretion in not excluding certain payments from the marital estate that were made by Husband for the benefit of the parties and their children;

III. Whether the trial court abused its discretion in ordering the payment of graduate school expenses;

IV. Whether the trial court abused its discretion in ordering Husband to pay 65% of the educational expenses of the children;

V. Whether the trial court abused its discretion in its valuation of an investment when the evidence did not support the valuation;

VI. Whether the trial court abused its discretion in making its property distribution because it failed to consider the tax consequences of the property division;

VII. Whether the trial court abused its discretion when it awarded Wife 55% of the marital estate; and

VIII. Whether the trial court abused its discretion when it ordered Husband to pay a portion of Wife’s attorney fees.

We affirm in part, reverse in part, and remand.

NFP civil decisions today (2):

In the Matter of the Termination of the Parent-Child Relationship of P.W., Father, and T.Y., Mother, et al. v. Indiana Department of Child Services (mem. dec.)

In the Matter of the Adoption of A.Y.S.: J.S. (Father) v. C.A.K. (mem. dec.)

NFP criminal decisions today (4):

Victor S. Perez, Jr. v. State of Indiana (mem. dec.)

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

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

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

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

Ind. Gov't. - More on "Study says South Bend casino will cost state $350 million"

Updating this post from earlier this morning, here, via the Lockport Union-Sun & Journal, is veteran CNHI reporter Maureen Hayden's take on the report, headed "Gaming industry sees threat in tribal casino":

INDIANAPOLIS – A regular casino windfall for state budget writers is steadily getting smaller and soon could face one of its biggest declines yet with competition from Native American gaming halls.

The coming of Four Winds casino in South Bend is setting off alarms -- and not the "jackpot" kind -- throughout the casino industry. It will be the first tribal casino in Indiana when it opens in 2018 and likely not the last.

Unlike the state's 13 existing casinos, taxed 30 cents on every dollar gambled, tribal casinos aren't obliged pay state taxes.

On Tuesday, the Gaming Association of Indiana released a dire outlook for both existing casinos and the state budget.

“The introduction of tribal gaming in South Bend will be the single most disruptive occurrence to the casino gaming industry since properties opened their doors 20 years ago,” said Matt Bell, the association's head. * * *

The Pokagon Band of Potawatomi Indians, which will operate Four Winds in South Bend, already operates three casinos in southern Michigan that pull Hoosier bettors over the border.

Longtime gaming analyst Ed Feigenbaum, publisher of Indiana Gaming Insight, calls the arrival of a tribal casino “a real game-changer.”

Unlike the existing, privately owned casinos, the Pokagon Band, considered a sovereign nation, won’t be subject to the state's taxes. And its freedom extends beyond gaming taxes.

ILB: Here is the 68-page, Dec. 9th report prepared for the Casino Ass'n of Indiana by Spectrum Gaming Association. It is titled Market Assessment: Challenges Facing Indiana’s Commercial Gaming Industry, including Planned Indian Casino in South Bend."

Posted by Marcia Oddi on Wednesday, December 14, 2016
Posted to Indiana Government

Ind. Courts - ACLU challenges Clarksville ordinance that allows inspections without property owners permission [Updated]

Yesterday the ACLU of Indiana filed suit in SD Ind., Albany Div., in the case of Mary Hazel Upton v. Town of Clarksville. From the complaint:

On a number of occasions employees of the Town of Clarksville have entered Mary Hazel Upton’s property in Clarksville, without permission or warrant, to make inspections pursuant to the Town’s ordinances that the Town interprets as allowing such inspections. Ms. Upton is subject to similar searches in the future. Such searches, without consent or warrant, are unconstitutional and to the extent that the Town is interpreting its ordinances as allowing such searches the ordinances are unconstitutional. Appropriate injunctive and declaratory relief must enter. * * *

The actions of employees of the Town of Clarksville in entering plaintiff’s property without permission or without a warrant violates the Fourth Amendment to the United States Constitution and the ordinances of the Town of Clarksville that purport to allow such entry violate the Fourth Amendment.

ILB: Attached is a copy of the 5-page complaint plus the exhibits.

More coming.

Updates: Here are some a few ILB posts on similar issues:

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

Courts - "Data Tools Offer Hints at How Judges Might Rule"

Sara Randazzo of the $$ Wall Street Journal reports on new services that predict how judges might rules. A few quotes:

Lawyers looking for an edge in court are increasingly turning to hard data to predict how judges might rule, in some cases long before the judges put pen to paper.

New tools, mined from millions of court documents, offer lawyers statistics on the likelihood of a lawsuit’s being dismissed, for instance, or the average wait time until a trial. Lawyers say the data can help temper client expectations, influence courtroom decision-making and even save money by flagging strategies unlikely to succeed. * * *

Traditionally, judges’ reputations have spread through anecdotes, often gathered by lawyers’ sending a firm-wide email to colleagues. This has led to broad insights, like knowing that the Eastern District of Texas is a plaintiff-friendly patent court, or that a certain judge is short-tempered or gives out light sentences.

Now, a slew of services, from companies including Lex Machina, Ravel Law and Bloomberg Law, are offering far more granular information about judges. * * *

Mr. Jenkins, a partner at Sedgwick LLP, said his data has run counter to some common beliefs. While many lawyers and judges say it is impossible to predict the outcome of an appeal based on oral arguments, he found that at the Illinois Supreme Court, if the judges ask your side more questions, “your odds drop like a rock.”

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

Ind. Gov't. - "Study says South Bend casino will cost state $350 million"

Andrew Steele of the NWI Times has a good, and lengthy, story on the impact of the "the Pokagon Band of Potawatomi Indians' recent start on construction of a casino in South Bend." A few more quotes:

A study commissioned by the association and Blue Chip Casino — not an association member, but the closest casino to South Bend — has concluded that a new Four Winds Casino would lead to a gaming and income tax revenue decline of $354.75 million over five years, and the loss of 732 jobs in the commercial casino industry.

The study also projects a reduction of $3.8 million in Local Development Agreement payments to Hammond, East Chicago, Gary and Michigan City over five years.

"The introduction of a tribal casino in South Bend will have a substantially negative impact on state revenue, employment in the commercial casino industry, payments made to communities through local development agreements and the resulting community benefits those payments support," association President and CEO Matt Bell said in a statement announcing the release of the study prepared by gaming consultancy Spectrum Gaming Group.

Spectrum argues that the tribal casino would have significant competitive advantages, resulting from the favorable revenue-sharing status tribal casinos generally have, that would allow it to draw business away from existing casinos. * * *

The tribe does not need government approval to open a casino with the games, designated class II, planned for phase one.

The Spectrum Gaming report acknowledges that a Four Winds South Bend would itself lessen the negative impacts the report projects, especially concerning employment.

And, the tribe has reached a revenue sharing agreement with South Bend that will provide it 2 percent of its gaming profits.

But the report notes that the Pokagon Band will be required to pay no gaming taxes with its proposed class II gaming facility, "giving it an enormous marketing and pricing advantage, particularly in slot payout rates."

Posted by Marcia Oddi on Wednesday, December 14, 2016
Posted to Indiana Government

Tuesday, December 13, 2016

Ind. Gov't. - More on: The 2017-2019 Budget Committee Hearings Begin Tomorrow, Dec. 7th [Updated]

Updating this ILB post from Dec. 6th, Chief Justice Rush will present the Indiana Supreme Court budget to the State Budget Committee this afternoon at 3:15 p.m.

Here is the entire 33-page presentation; here is the 10-page handout.

These documents contain much information on the operation of the Indiana Court that is otherwise very difficult to locate.

ILB Note: Unfortunately, unless I have missed something, the presentation is not being videocast. In addition, Handout B does not appear to be available. [Update: Here it is]

[Updated at 4:35 p.m.] At least the last part of the presentation was live videocast, but I don't believe it has been archived (let me know if it has).

Here is information the Court submitted to the State Budget Committee:

Posted by Marcia Oddi on Tuesday, December 13, 2016
Posted to Indiana Government

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

For publication opinions today (1):

In State of Indiana v. Douglas Woods Johnston, a 9-page opinion, Judge Baiuley writes:

The State of Indiana (“the State”) appeals the denial of a motion to correct error, which challenged an order granting the petition of Douglas Woods Johnston (“Johnston”) to relieve him of registration requirements under the Indiana Sex Offenders Registry Act, Indiana Code Section 11-8-8-1, et seq., (“SORA”). The State presents the sole issue of whether Johnston was granted relief in contravention of statutory authority. We reverse. * * *

Here, the petition did not comply with the requirements of subsection (k). It was not submitted under penalties of perjury and one of Johnston’s convictions was omitted. The chronological case summary does not reflect the provision of requisite notice to the DOC and the Attorney General. In his petition and at the hearing, Johnston made no claim that he was subject to ex post facto punishment. Nor did Johnston argue at the hearing that he had satisfied his statutory burden of proof with respect to subsection (g). Rather, counsel urged: “The most significant thing to me seem[s] to be his last conviction in 2006, where he was convicted and found guilty but mentally ill, and I think that kind of sums up the whole thing.” (Tr. at 13.) Counsel then argued that “the most important thing” was facilitating Johnston’s relationships with his mental health treatment providers “in some hope for a better quality of life.” (Tr. at 13.) In culmination, the trial court did not make particular findings relative to a change in the law as described in subsection (g) nor did the trial court address ex post facto punishment. * * *

Lacking a proper statutory-based petition for relief, the trial court should have granted the State’s request for dismissal of Johnston’s petition.

Conclusion. Because Johnston’s inadequate petition should have been dismissed, the denial of the motion to correct error was an abuse of the trial court’s discretion. Reversed and remanded with instructions that the trial court dismiss the matter without prejudice subject to further proceedings in the event Johnston files a sufficient petition.

NFP civil decisions today (1):

In the Term. of the Parent-Child Relationship of: E.S., Ed.B. and El.B. (Minor Children), and B.B. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (3):

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

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

Cody Mikework v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, December 13, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Court of Appeals to hear Rush County wind case next month"

James Sprague writes in a long story in the Connersville News Examiner:

RUSHVILLE — It’s going to be a busy, and momentous, coming weeks for the Rush County Board of Zoning Appeals regarding the subject of wind energy.

The fate of two proposed wind projects, at least in Rush County – the Flat Rock Wind Project led by Apex Clean Energy, and the West Fork Wind Energy Center, led by NextEra Energy Resources – could very well be determined in the next month, beginning this very week.

The Rush County BZA on Wednesday night will continue its meeting from November, where the board heard about and considered information regarding the special exception permits, submitted by NextEra, on behalf of the West Fork Wind Energy Center. * * *

Then, almost a month to the day after the Rush County BZA will decide on the future of one wind project, its decision in another such project will be argued in front of the Indiana State Court of Appeals in Indianapolis.

The Court of Appeals, last week, set a date of Friday, Jan. 13, for oral arguments in the ongoing civil case involving the Rush County BZA and Apex Clean Energy, also known as Flat Rock Wind LLC., regarding the proposed Flat Rock Wind Farm project.

That battle between the BZA and Apex Clean Energy revolves around the BZA’s decision in July 2015 to enact a 2,300-foot setback distance, from non-participating property lines, on Apex’s special exception permits for construction of industrial wind turbines as part of their proposed wind project.

That decision by the BZA was later upheld, during a challenge by Apex in Rush Superior Court, by Judge Matthew D. Bailey. Apex argued that the BZA does not have the authority to change the setback distance from the county-stated minimum of 1,000 feet, while Bailey ruled that the BZA did, in fact, have such authority. The decision led to Apex appealing the ruling, thus sending the case to the Court of Appeals.

Posted by Marcia Oddi on Tuesday, December 13, 2016
Posted to Indiana Courts | Indiana Government

Ind. Decisions - "7th Circuit rejects Illinois-Indiana gunrunner’s Facebook argument"

Re the 7th Circuit's decision Dec. 9th in USA v. David Lewisbey, an appeal of a ND Illinois case, Judge Sykes begins:

David Lewisbey wa s a Chicago-based gunrunner who used a fake Indiana I.D. to buy guns at Indiana gun shows and bring them back to Illinois to sell. He came to the attention of law enforcement when he bragged about his gunrunning exploits on Facebook. Federal agents set up a sting, and Lewisbey was arrested and charged with multiple counts of unlawfully transporting and dealing firearms. A jury convicted him on all counts. * * * He also challenges the admission of incriminating text-message and Facebook evidence at trial.
A $$ Chicago Daily Law Bulletin story, excerpted by WANE, reports:
CHICAGO (AP) — An appeals court in Chicago has reaffirmed that your Facebook posting can potentially be used against you in court.

The Chicago Daily Law Bulletin reported Monday that the 7th U.S. Circuit Court of Appeals rejected convicted gunrunner David Lewisbey argument that Facebook photos of himself surrounded by guns shouldn’t have been admissible. It upheld his convictions for buying guns at Indiana gun shows, then reselling them in Illinois.

Lewisbey first drew the scrutiny of agents after bragging about running guns on Facebook.

Posted by Marcia Oddi on Tuesday, December 13, 2016
Posted to Ind. (7th Cir.) Decisions

Monday, December 12, 2016

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

In USA v. Shaft Jones (ND Ind., Springmann), a 6-page opinion, Juydge Posner writes:

A federal jury found the defendant guilty of conspiring to possess, with intent to distribute, five or more kilograms of cocaine, and of related crimes includ‐ ing carrying a gun in connection with drug trafficking. The district judge sentenced him to 270 months in prison. * * * Affirmed.

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

Environment - "Former EPA official James Barnes 'appalled' by Trump's choice to head agency"

From a long story this weekend in the $$ Bloomington Herald-Times, reported by Michael Reschke:

Sitting at his wooden desk last week, [IU SPEA's] James Barnes struggled to express his feelings about President-elect Donald Trump’s decision to nominate Oklahoma Attorney General Scott Pruitt as the next leader of the U.S. Environmental Protection Agency.

“I don’t know what we’re looking at here, but it is, uh,” he said, pausing before he continued. “My reaction was to be not completely surprised but appalled by that choice, and I’ll be glad to explain it.”

Pruitt has been a vocal critic of science that shows the Earth is warming and that man-made carbon emissions are largely to blame. Although he ran unopposed, financial reports show many of the top donors in Pruitt’s 2014 re-election campaign came from the energy and utility industries. He has repeatedly sued the EPA, an organization Barnes is intimately familiar with.

Shortly after the EPA was formed in December of 1970, Barnes became chief of staff [to EPA Administrator William D. Ruckelshaus]. * * *

Shortly after President Ronald Reagan was inaugurated, he appointed Anne Gorsuch to lead the EPA. Believing the EPA was over-regulating businesses, she cut the agency’s budget and reduced its staff. Virtually all of her subordinates came from the ranks of industries they were charged with overseeing, according to her 2004 obituary in the Washington Post. Anne Gorsuch Burford (she had remarried) resigned in 1983 after being cited for contempt of Congress when she refused to turn over thousands of documents related to toxic waste cleanup.

Having what Barnes called a reputation as Mr. Integrity, Ruckelshaus was again appointed as head of the EPA. When he returned to the agency he helped form, Barnes found a staff that was demoralized. Burford and her administration had habitually met in private, announced their decisions and then expected the career EPA employees to follow them, he said. That approach wasn’t popular, and information was leaked. * * *

That second stint at the EPA showed Barnes the importance of having a leader who is familiar with how it works and who is sympathetic to its mission.

“I think it was probably a mistake to have either an out-and-out environmentalist or somebody from industry there,” he said. “The agency’s mission is to protect the public health and protect the environment, and it involves often difficult decisions where economics and science and health and so on are all factors, and you need to chart a course that takes all of them into account.”

Those aren’t the characteristics he sees in Pruitt.

Posted by Marcia Oddi on Monday, December 12, 2016
Posted to Environment

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

For publication opinions today (3):

In Richard Dobeski v. State of Indiana , a 12-page opinion, Judge Altice writes:

Richard Dobeski appeals following his conviction for failure to register as a sex offender. Under the terms of the applicable statute, Dobeski was required to register “not more than seven (7) days after” his release from prison. Ind. Code § 11-8-8-7(g). On appeal, Dobeski argues that the State presented insufficient evidence to support his conviction because seven days had not yet elapsed at the time he was arrested. * * *

For all of these reasons, we conclude that T.R. 6(A) sets forth the proper method of computing the seven-day time frame set forth in I.C. § 11-8-8-7(g). Accordingly, we must exclude the day of the triggering event—Dobeski’s release, which took place on July 16, 2015—and allow Dobeski until the end of the seventh succeeding calendar day—or Thursday, July 23, 2015—to register as a sex offender. When Dobeski was arrested sometime between 2:00 and 2:30 p.m. on that date, “seven (7) days” had not yet elapsed for the purposes of I.C. § 11-8-8-7(g). Accordingly, Dobeski’s conviction for failure to register as a sex offender is not supported by the evidence.

Judgment reversed and remanded with instructions.

In Antonio Waters v. State of Indiana, a 12-page opinion, Chief Judge Vaidik writes:
Antonio Waters pled guilty to criminal deviate conduct, battery resulting in bodily injury, and strangulation after assaulting a woman in 2008. The trial court entered a sentence of imprisonment to be followed by probation. The court imposed the standard probation conditions but said that it would consider sex-offender conditions at a date closer to Waters’ release from prison. Waters did not object to this procedure. The day before Waters was released from prison in 2016, the court held a hearing and imposed twenty-six sex-offender conditions. Waters appeals the imposition of those conditions, arguing that holding the delayed second hearing violated Indiana law and that, in the alternative, seventeen of the twenty-six conditions are unnecessary and inappropriate.

We agree with the State that Waters waived any objection to the bifurcation of the sentencing hearing. However, probation conditions must be reasonably related to the defendant’s treatment and the protection of public safety. Several of Waters’ conditions fall short of this standard. Applying our Supreme Court’s holding in Bleeke v. Lemmon, 6 N.E.3d 907 (Ind. 2014), we conclude that the trial court erred when it imposed four conditions that restrict Waters’ contact with minors even though his offenses did not involve minors. Furthermore, condition 26, which restricts Waters’ access to the internet, is overly broad in its application. Waters’ internet restriction should be limited to websites that are related to his offenses—such as dating websites and websites with sexually explicit material—because the internet has become increasingly pervasive in our daily lives, and Waters did not use the internet to commit his crimes. We affirm in part, reverse in part, and remand with instructions. * * *

Here, there is no evidence in the record to show that Waters used the internet to commit his attack on S.C. or that he has a history of illegal internet use. The trial court noted that Waters has “issues with respect to women,” not issues with the internet. Tr. p. 33. In light of this observation, we acknowledge that the internet has become a popular medium for people to meet, and it is one way Waters could meet women. Modern technology affords the court the tools to limit Waters’ access to certain dating websites and phone applications, as well as websites with sexually explicit materials—restrictions that are reasonably related to his rehabilitation and the protection of public safety.4 For example, the court can order that the parental controls on Waters’ phone be turned on, can order that software be downloaded to Waters’ computer to block specific websites, and can identify the category of websites to be blocked. On remand, the trial court should impose a narrower internet restriction that is more in line with Waters’ conviction and “issues with women.”

Affirmed in part, reversed in part, and remanded with instructions.

In David A. Mathews v. State of Indiana, a 15-page opinion, Judge Mathias writes:
David A. Mathews (“Mathews”) was convicted in Adams Superior Court of misdemeanor operating a vehicle while intoxicated and felony obstruction of justice. Mathews appeals the order of the trial judge, his former lawyer in a tangentially related case, denying his motion for recusal and requests a new trial. We affirm.
NFP civil decisions today (4):

Carolyn F. Brundage v. Brian R. Brundage (mem. dec.)

In the Termination of the Parent-Child Relationship of: Ne.K. & Ni.K. (minor children) and L.K. (Mother) v. Indiana Department of Child Services (mem. dec.)

Afsaneh S. Kleinman and Dr. Elliot Kleinman v. Fifth Third Securities, Inc. (mem. dec.)

Jeremy A. Wroblewski v. FS Financial, LLC (mem. dec.)

NFP criminal decisions today (5):

Michael D. Webb v. State of Indiana (mem. dec.)

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

Terry L. Hill v. State of Indiana (mem. dec.)

Kadijah Danner v. State of Indiana (mem. dec.)

Moses Giger v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, December 12, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "East Chicago lead crisis: 'Our site is parallel with Flint now'" [Updated]

That is the headline to the NWI Times story from Dec. 10, reported by Lauren Cross and Sarah Reese. Here are some earlier ILB posts on the issue.

[Updated at 11:26 a.m.] Reporter Reese today has a lengthy story with many photos, headed "A century of heavy industry transformed East Chicago's Calumet neighborhood."

Posted by Marcia Oddi on Monday, December 12, 2016
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending December 9, 2016

Here is the Clerk's transfer list for the week ending Friday, December 9, 2016. It is two pages (and 22 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Monday, December 12, 2016
Posted to Indiana Transfer Lists

Ind. Decisions - More on "Court of Appeals finds Hoosiers have right to walk near Lake Michigan"

Supplementing the most recent ILB post (from Dec. 8, 2016) on rights to the Lake Michigan shoreline, Stan Maddux of the South Bend Tribune reported this weekend in a long story that included:

LAPORTE — Public access rights to the Lake Michigan shoreline was affirmed this week by the state's Court of Appeals.

In its 3-0 decision Wednesday, the court reaffirmed the extreme shoreline is owned by the state as a public trust for all of its citizens.

Although the ruling upholds arguments from landowners that private property extends to the water's edge, the court stated that granting lake shore property owners the right to exclude the public from state-owned land ''would be inconsistent with the public trust doctrine."

The state's interest extends to the "ordinary high water mark," which the court defined as the line on the shore where the presence and action of water is continuous enough to distinguish it from land through erosion, vegetation changes or other characteristics. * * *

Wednesday’s decision stems from a multi-year legal challenge by the Long Beach Lakefront Homeowners Association, which claims there have been numerous complaints of beach use that include parties, littering and other activities by the public on land that its members felt they had exclusive rights to. * * *

South Bend attorney Michael Knight, who represents the homeowners association, said no decision has been made on whether to appeal the appellate ruling.

He compared the decision to ownership of any residential plot extending to the middle of a street with the area between the street and edge of the yard being public right of way.

Although the court ruled against the ability of private landowners to restrict public access to the lake for activities such as fishing and walking, Knight feels the public shouldn't have the right to stop for any other reason.

''I would say sitting, partying, loitering, stopping is more akin to ownership than it is to merely walking,'' said Knight.

The shoreline is accessed by the public on right of ways owned by the town, which patrols the strip they consider public beach.

Long Beach Police Chief Bob Sulkowski, though, felt the court ruling doesn't prohibit activities by the public and that's how his department has already been handling the situation.

“We've treated it that way ever since this began,” Sulkowski said. “So it's nothing new to us.”

Posted by Marcia Oddi on Monday, December 12, 2016
Posted to Ind. App.Ct. Decisions

Law - "Proposed federal legislation could protect online reviewers from retaliatory suits"

Christopher Elliott reported Dec. 8th in a long story in the Washington Post - some quotes:

SLAPP lawsuits — which most often take the form of a defamation suit — are surprisingly common. They are meant to burden individuals with the cost of a legal defense until they stop their criticism. They affect travelers disproportionately, in large part because travelers’ opinions have the power to raise the fortunes of a hotel or restaurant — or to put them out of business.

Last year, for example, roughly 2,500 TripAdvisor users removed their reviews because they were being harassed by businesses they had rated, according to the site. It’s not known how many disrupted reviews resulted in lawsuits.

The Speak Free Act, which is expected to be considered by Congress in early 2017, allows any person against whom a SLAPP suit has been filed to make a special motion to dismiss the lawsuit. Proponents say a new anti-SLAPP law is needed on the federal level because only a patchwork of state laws exist, and they offer uneven protection against these frivolous legal complaints.

The Speak Free Act would allow travelers to quickly end these suits before they run up legal bills. Supporters say the law would also encourage consumers to offer honest reviews without fear of retribution.

For a related story, see this ILB post from Jan. 5, 2015, quoting a story by Tim Evans, the Indianapolis Star's consumer advocate, headed "Businesses are watching online reviews and, increasingly, striking back with retraction demands — even lawsuits."

Posted by Marcia Oddi on Monday, December 12, 2016
Posted to General Law Related

Courts - "Wife May Not Use Facebook to Notify Husband of Divorce"

Last week the WSJ Law Blog posted:

A court ruling in a Brooklyn divorce case is the latest example of judges rejecting attempts by litigants to serve complaints and summonses via Facebook.

Brooklyn Supreme Court Justice Jeffrey Sunshine this week refused a woman’s request to serve her husband with a summons for divorce through Facebook.

The wife said she couldn’t find another way to communicate with her estranged husband, who she says moved to Saudi Arabia. But the judge was uncomfortable with relying on Facebook. * * *

Judges aren’t totally opposed to the idea of allowing a social network to substitute for a mailman or in-person service. But courts have been reluctant to rely exclusively on Facebook and other popular social-networking sites as a means of communicating with a defendant.

Posted by Marcia Oddi on Monday, December 12, 2016
Posted to Courts in general

Ind. Decisions - Upcoming oral arguments this week and next

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

Thursday, December 15

Next week's oral arguments before the Supreme Court (week of 12/19/16):

Webcasts of Supreme Court oral arguments are available here.




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

Thursday, December 15

Next week's oral arguments before the Court of Appeals (week of 12/19/16):

Monday, December 19 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, December 12, 2016
Posted to Upcoming Oral Arguments

Friday, December 09, 2016

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (4):

In Meridian Health Services Corporation v. Thomas Martin Bell, a 6-page opinion, Judge Robb writes:

In Meridian Health Servs. Corp. v. Bell, 61 N.E.3d 348 (Ind. Ct. App. 2016), we affirmed the trial court’s imposition of sanctions on a mental health provider for failing to appear at a deposition and refusing to release a child’s mental health records to her non-custodial parent. Meridian Health Services Corporation (“Meridian”) seeks rehearing of our decision. We grant rehearing to address one of the grounds raised by Meridian in its petition for rehearing, but reaffirm our original decision in all respects. * * *

It is clear from the entire record of the proceedings that the trial court’s decision to impose sanctions against Meridian only after the records had finally been released to the parties was based on the sum total of Meridian’s actions throughout this litigation and not just on the original failure to comply with a subpoena and appear for a deposition. We did not misread or misunderstand the substance of the trial court’s order, and we therefore reaffirm our original decision that the trial court did not abuse its discretion in ordering Meridian pay Father’s attorney fees incurred in obtaining his child’s therapy records.

In Thomas Hudgins and Sheila Hudgins v. Brian Bemish, Ideal Heating Air Conditioning and Refrigeration, Inc. , a 24-page opinion, Judge Pyle writes:
Appellants-Plaintiffs, Thomas Hudgins (“Hudgins”) and Sheila Hudgins (“Sheila”) (collectively, “the Hudginses”), appeal the trial court’s grant of summary judgment to Appellee-Defendant, Ideal Heating Air Conditioning and Refrigeration, Inc. (“Ideal”), who was the employer of Brian Bemish (“Bemish”). This case originates from the Hudginses’ complaint, alleging negligence, loss of consortium, and property damage based on a collision that occurred when Bemish drove his Ideal work vehicle into a line of vehicles stopped at a traffic light. The Hudginses alleged that Ideal was vicariously liable under respondeat superior and liable based on negligent hiring and retention under Restatement (Second) of Torts § 317.

The Hudginses argue that the trial court erred by granting summary judgment in favor of Ideal because there remain genuine issues of material fact regarding their claims against Ideal. We conclude that, based on the evidence designated to the trial court, there are conflicting facts or conflicting inferences that can be drawn as to whether Bemish was acting in the scope of his employment with Ideal at the time of the accident. Additionally, we conclude that Ideal has not met its initial burden on its motion for summary judgment on the Hudginses’ negligent hiring and retention claim because it has not demonstrated the absence of a genuine issue of material fact regarding that claim and, instead, has merely alleged that the Hudginses have failed to present evidence showing that Ideal was liable under this claim. Accordingly, we reverse the trial court’s judgment and remand for further proceedings.

In Klinique J. Champion v. State of Indiana, a 7-page opinion, Judge Pyle writes:
Klinique Champion (“Champion”) appeals, following a bench trial, her conviction of two counts of intimidation, one as a Class A misdemeanor and one as a Level 6 felony. She challenges the sufficiency of the evidence to support the convictions. Concluding that the evidence is sufficient, we affirm. * * *

To convict Champion of intimidation as a Class A misdemeanor, the State was required to prove beyond a reasonable doubt that Champion communicated a threat to Hoggard with the intent that Hoggard be placed in fear of retaliation for having lawful custody of Champion’s children. See IND. CODE § 35-45-2-1. To convict Champion of the Level 6 felony, the State had to additionally prove that the threat was to commit a forcible felony. See id.

Champion’s sole argument is that the State failed to prove that Hoggard had lawful custody of J.G. and R.G. Champion’s argument is premised on her belief that lawful custody and legal custody are the same thing. They are not. In In re Adoption of B.C.H., 22 N.E.3d 580, 585 (Ind. 2014), the Indiana Supreme Court explained that lawful custody simply means custody that is not unlawful. The Court further explained that “there are many sources of potential lawful custody that span the spectrum from court-ordered custody of a child to de facto custodianship to informal caretaking arrangements, to name a few.” Id. * * *

Hoggard assumed the obligations of the parental relationship with J.G. and R.G. We agree with the State that “Hoggard did have lawful custody of [J.G. and R.G.] as their stepmother and caregiver.” (State’s Br. 13). We therefore find sufficient evidence to support Champion’s intimidation convictions.

In Gary W. Lowrance v. State of Indiana , an 8-page opinion, Judge Pyle writes:
Gary Lowrance (“Lowrance”) appeals pro se the trial court’s denial of his motion to correct error regarding the denial of his motion for a nunc pro tunc order. According to Lowrance, the trial court should have granted both motions because the trial court’s statement at Lowrance’s 1996 sentencing hearing constituted an order to reinstate his right to bear arms. Finding that the trial court’s statement at the 1996 sentencing hearing merely set forth the terms and conditions of Lowrance’s probation, we affirm the trial court’s denial of Lowrance’s motion to correct error. * * *

Because the trial court’s sentencing statement did not constitute an order reinstating Lowrance’s substantive right to bear arms, there was no “omission in the record of action really had.” See Grayson, 851 N.E.2d at 1020. Without such an omission, there was nothing for the trial court to correct with a nunc pro tunc entry. The trial court did not abuse its discretion in denying the motions for nunc pro tunc order and to correct error.

NFP civil decisions today (2):

Kimberly Smee v. Zachary Johnson, individually and as an agent of Northern Ag Services, Inc., and Northern Ag Services, Inc. (mem. dec.)

In re the Termination of the Parent-Child Relationship of N.H. (Minor Child), and J.G. (Mother) v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (5):

Terral Lerron Golden v. State of Indiana (mem. dec.)

Ruben B. Green v. State of Indiana (mem. dec.)

John Kidwell v. State of Indiana (mem. dec.)

Gregory T. Clark, II v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Friday, December 09, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Indiana cities appeal ruling in LGBT lawsuit"

The Columbus Republic is reporting this morning that:

Columbus and three other Indiana cities have asked the Indiana Court of Appeals to overrule a judge’s ruling allowing conservative groups to continue with a lawsuit challenging anti-discrimination ordinances.

The cities, which include Bloomington, Carmel and Indianapolis, argue the appeals court should take the case because it will cost the cities substantial expense arguing the lawsuit on its merits and because the case involves substantial questions of law that have broad implications. The ordinances include protections based on sexual orientation or gender identity, the Herald-Times of Bloomington reported.

The cities are appealing a decision by Hamilton County Superior Judge Steven Nation rejecting their requests that the lawsuit be dismissed. The ordinances are being challenged by the Indiana Family Institute, Indiana Family Action and the American Family Association of Indiana.

Here is Judge Nation's Nov. 16th ruling.

Here is a long list of ILB entries on this case.

The case does not yet appear on the Appellate Court docket.

A look at the trial court docket for Indiana Family Institute Inc, Indiana Family Action Inc, American Family Association of Indiana Inc v. City of Carmel Indiana, City Attorney for the City of Carmel Indiana, Douglas Haney et al(29D01-1512-MI-010207) shows that on Novemember 18th (two days after Judge Nation's order) a Motion to Intervene was filed by the State of Indiana. And on 12/5/2016 the docket shows this entry:

Order Issued Judge's Entry of Dec. 1, 2016 entered. State of Indiana filed STATE OF INDIANA'S MOTION TO INTERVENE on Nov. 18, 2016. The Court dismissed the Compliant in the Order of Nov. 16, 2016 with the right to file an amended complaint with the State added as necessary party. Therefore, the Court finds that such Motion should be and is hereby deemed MOOT.
As of this writing, there is no entry re the filing of an appeal...

Posted by Marcia Oddi on Friday, December 09, 2016
Posted to Ind. Trial Ct. Decisions

Courts - "Justice by Algorithm: Baltimore uses a little-known risk assessment tool to help make bail decisions"

That is the title to this lengthy Atlantic CityLab article by George Joseph. A sample:

Baltimore’s Pretrial Release Services, like many agencies nationwide, uses a risk assessment tool to give defendants proceeding through the court system scores based upon statistical likelihoods of failure to appear or rearrest. These scores are supposed to help pretrial service agents recommend bail decisions to judges based on objective, standardized criteria. But no one else involved in the case, including the defendant and their attorney, gets to see or even hear about their score, much less the impact it has on their bail recommendation.

The use of risk assessment tools has rapidly spread to many different parts of the criminal justice system, from bail to parole, in jurisdictions across the country. Less than 10 percent of U.S. jurisdictions use pretrial risk assessments today, but support for their introduction is growing in cities and states nationwide, financed by foundations interested in finding ways to release more “low-risk” defendants—and cutting down on the billions of dollars spent to hold them.

But in Baltimore, even some defense attorneys are unaware of the use of this tool in the bail recommendation process. Little is known about the factors selected to calculate risk—and the potentially disparate impacts these calculations may have on bail recommendations for defendants from highly policed communities. Transparency on how these risk scores are being interpreted—and how judges are weighing the recommendations based on them—is especially important, as calls for bail reform through the expansion of these tools are growing in Maryland.

Here is a long list of ILB posts on the topic.

Posted by Marcia Oddi on Friday, December 09, 2016
Posted to Courts in general

Ind. Decisions - More on: 7th Circuit decides dispute between Benton Co. wind farm and Duke re wind-generated power

The Dec. 6th 7th Circuit opinion in Benton County Wind Farm LLC v. Duke Energy Indiana, Inc. (ILB summary here) is the subject of this Courthouse News analysis by Molly Willms, headed "Energy Firm Must Pay for Farm’s Unused Wind Power." It begins:

(CN) – An energy company must honor its agreement to pay for wind power a farm generates even if it is not transmitted due to power grid overload, the Seventh Circuit ruled.

When it signed a contract with Benton County Wind Farm LLC, Seventh Circuit Judge Frank Easterbrook ruled that Duke Energy Indiana knowingly accepted the risk that the supply of wind energy would outstrip the capacity of the delivery grids.

“Duke wanted Benton’s facilities to exist and called them into existence by promising to pay even if a shortfall of transmission services should lead to curtailment of deliveries,” Easterbrook wrote in Tuesday’s unanimous opinion.

Posted by Marcia Oddi on Friday, December 09, 2016
Posted to Ind. (7th Cir.) Decisions

Environment - LCJ stories on coal ash regulation and on Trump's EPA nominee

"Kentucky seeks to weaken coal ash oversight," is the headline to this long story posted yesterday by James Bruggers of the Louisville Courier Journal. The story begins:

The Bevin administration is taking steps to make it harder for the public - and the state's own regulatory agencies - to ensure utilities properly manage the mountains of toxic ash and scrubber sludge that their coal-fired power plants produce in Kentucky.

At issue is the Energy and Environment Cabinet's response to U.S. Environmental Protection Agency rules adopted last year that for the first time imposed tighter requirements on utilities to protect against pollution from coal-burning wastes, some of which have been shown to contaminate water, blow in the wind and catastrophically collapse when improperly stored, such as the Kingston, Tenn. disaster that devastated a community and led to a $1 billion cleanup.

The EPA rules also put a burden on citizens to conduct their own regulatory enforcement through lawsuits, and now the Bevin administration's proposal could add to that hardship by cutting the public out of the state's waste management permitting process while curbing state oversight.

The state's utilities including LG&E and KU Energy are embracing the proposed changes, saying the Cabinet's plan will eliminate unnecessary and unproductive regulations. But people who have fought the blowing ash and tainted groundwater from some coal ash dumps and storage ponds - and even one of the Cabinet's own geologists - are calling the Kentucky proposal a risky mistake.

"It's the most reckless regulatory program I have seen proposed in my 36 years of practicing environmental law," said attorney Tom FitzGerald, director of the Kentucky Resources Council, an environmental advocacy organization. "The idea that you are going to allow the generators of waste that contains elevated heavy metals and other pollutants of concern to essentially regulate themselves ... is a recipe for disaster."

There is much more to the story, plus a link to this Dec. 19, 2014 story by reporter Bruggers, headed "Look back | Tennessee coal ash disaster; 5 years, $1 billion later."

And here is a lengthy list of ILB posts on coal ash, dating back a dozen years.

The second story by LCJ reporter Bruggers yesterday
is headed "Oil-backed EPA appointee hails from Kentucky." A sample from the long story:

A spokesman for the Kentucky Energy and Environment Cabinet, John Mura, said cabinet officials appreciate Pruitt's participation in a lawsuit with Kentucky, Indiana and other states that seeks to overturn President Obama's Clean Power Plan to limit heat-trapping emissions from coal-fired power plants.

"We think he will and should take a critical view the cost-benefit trade-off of environmental regulations, because in areas such as the Clean Power Plan and the Stream Protection Rule (for mining), we agree with his viewpoint that the EPA has gone too far," Mura said.

But people in Kentucky and Indiana should know Pruitt is on record crediting fracking and cheaper natural gas for displacing coal and improving air quality. That renews questions about whether Trump can follow through on his promise to restore thousands of lost coal mining jobs in Appalachia.

In Congressional testimony in May, Pruitt said a change in the electricity generation mix away from coal and toward natural gas drove the reductions in emissions. "This didn't happen as a result of the heavy hand of the EPA," he said. "As natural gas becomes increasingly affordable, it becomes an increasingly attractive alternative to coal."

He said he expected that trend to continue "for years to come."

In his old Kentucky home and across the country, expect epic battles, and a lot of lawsuits by environmental organizations if the EPA starts unraveling its regulations, where Pruitt may score some wins. It will be harder to fundamentally change laws like the Clean Air Act and Clean Water Act in Congress, perhaps going as far as what Gov. Matt Bevin has suggested - doing away with the EPA "at the federal level."

Expect protests, too, especially around climate change, an issue that carries a good measure of public sympathy. Just a few months ago, new polling by Gallop found that 64 percent of U.S. adults say they are worried "a great deal" or a "fair amount" about global warming - up from 55 percent a year earlier, and the highest since 2008.

Posted by Marcia Oddi on Friday, December 09, 2016
Posted to Environment

Thursday, December 08, 2016

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

In Sherry Katz-Crank v. Kimberly Haskett (SD Ind., Pratt), a 19-page opinion (including a concur/dissent), Judge Sykes writes:

Sherry Katz‐Crank is a Michigan lawyer with a practice in cemetery management. An unscrupulous client used her services in the course of defrauding cemetery trust funds of $22 million. When Katz‐Crank discovered the fraud, she promptly contacted state regulatory authorities. The client was indicted on embezzlement charges. Katz‐Crank was charged as an aider and abettor, though a jury would ultimately acquit her.

Her reputation disgraced and her law practice in shambles, Katz‐Crank sued the state and county officials who were in any way involved in the prosecution. She alleged that they conspired to violate her federal constitutional rights; she raised several state‐law claims as well. The district judge entered judgment on the pleadings in the defendants’ favor on some claims and dismissed others for failure to state a claim.

We affirm. Most of Katz‐Crank’s claims are barred by the Eleventh Amendment or prosecutorial immunity. The balance of the complaint was properly dismissed for failure to state a plausible claim for relief. * * *

[p. 15] POSNER, Circuit Judge, concurring and dissenting.
I disagree with the majority only in regard to its dismissal of the count of the complaint in which the plaintiff alleges that some of the defendants, notably investigator Haskett, acted outside the scope of their prosecutorial duties “with deliberate indifference to Plaintiff’s constitutional rights.” * * *

We should reverse the dismissal of the defamation claim insofar as it alleges a drastic reduction in the plaintiff’s legal business as a consequence of the misconduct by the defend‐ ants, and remand for a trial.

Posted by Marcia Oddi on Thursday, December 08, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Supreme Court to decide if police need warrant for cell phone location data"

This morning the Supreme Court heard oral argument in the case of Marcus Zanders v. State of Indiana. (Read more here, in "Upcoming Oral Arguments"), and watch the archived video of today' argument here.

Read Dan Carden's coverage of today's oral argument here, in the NWI Times. Some quotes:

Twenty-first century technology and an American civil liberty constitutionally established in the 18th century collided Thursday during oral arguments at the Indiana Supreme Court.

At issue: Are police required to obtain a judicial warrant before asking cellular telephone companies to share business records that include a customer's historical location data?

The Indiana Court of Appeals concluded 2-1 in August that a warrant is mandated under the Fourth Amendment's protections against illegal searches, and threw out the robbery convictions, habitual offender enhancement and 61-year prison term issued to Marcus Zanders, 34, for his alleged role in a pair of 2015 southeastern Indiana liquor store holdups.

Deputy Attorney General Stephen Creason argued to the high court's five justices that Zanders' conviction should be reinstated, because by choosing to own a cell phone Zanders consented to share his location with his phone company to make the phone work. * * *

Leanna Weissmann, Zanders' attorney, said most Hoosiers don't realize their phones are almost constantly generating records of their current location, and they therefore are not knowingly and voluntarily giving up their privacy interest in that "digital debris."

She argued that requiring police to get a warrant requesting specific phone records would prevent overly broad searches that scoop up mounds of data police have no need to possess. * * *

It was not entirely clear, based on their questions to the lawyers, where four of the five Supreme Court justices were leaning in their decision — especially given the potential for real-time police tracking through a phone company without a warrant.

However, Justice Robert Rucker, a Gary native, was explicit in suggesting that turning on a phone isn't consent for police tracking, and that because obtaining a warrant is "a very uncomplicated process" there is little harm in making the police do so.

Posted by Marcia Oddi on Thursday, December 08, 2016
Posted to Indiana Decisions

Ind. Courts - Judge Sara Evans Barker presides over post-election naturalization ceremony

On November 17th, Judge Sarah Evans Barker oversaw the swearing in of new citizens, has she has many times before. This time, however, her words of welcome to the new citizens became the topic of a story by Alex Kotlowitz, published yesterday in The New Yorker. A few quotes from the must-read story:

Tree times a year, Judge Sarah Evans Barker, a federal district judge for the Southern District of Indiana, oversees the swearing in of new citizens. Barker, like most judges, relishes these proceedings, since they’re ordinarily such festive occasions. “You feel the pressure to rise to the level of excitement,” she told me. By choice, Judge Barker handles the naturalization ceremony that falls around the Fourth of July. It’s an elaborate affair, held on the lawn of President Benjamin Harrison’s home, under a tent. There’s live music, and Barker hands out boxes of sparklers to the new Americans. This year, she was also scheduled to conduct the ceremony held nine days after the election, and she worried that what joy people felt would be tempered by fear. “I was concerned about what to say to people who had been buffeted about by the harsh rhetoric,” she told me, “and I wanted to do what I could to soothe their concerns.”

Posted by Marcia Oddi on Thursday, December 08, 2016
Posted to Indiana Courts

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

For publication opinions today (2):

In In re the Expungement/Sealing of Records of H.M. v. State of Indiana and Marion County Sheriff, a 14-page opinion, with a concurring opinion, Judge Bailey writes:

H.M.’s criminal convictions were expunged in 2013. H.M. later applied with the Marion County Sheriff (“the Sheriff”) to serve as a volunteer deputy sheriff. After conducting a background check, the Sheriff declined H.M.’s application. H.M. initiated contempt proceedings alleging discrimination prohibited under Indiana’s criminal history expungement statute. The contempt petition was dismissed upon the Sheriff’s motion. H.M. now appeals. We reverse and remand. * * *

It may well be that the Sheriff had other bases upon which to deny H.M.’s application. But given the precise nature of H.M.’s allegation in the petition and the breadth of the anti-discrimination provisions of the expungment statute, we cannot say as a matter of law that the petition failed to adequately set forth a basis upon which H.M. might proceed in an effort to prove discrimination solely based upon his prior expunged convictions.

We recognize the Sheriff’s need to appoint deputy sheriffs who are qualified under the deputization statutes, as well as the scrutiny to which law enforcement is subjected. Yet the Indiana General Assembly has not limited the scope of the expungement statute by carving out an exception to the antidiscrimination provisions for the designation of deputy sheriffs. It is thus to the legislature—the same body that governs the powers of sheriffs to appoint their deputies—that the Sheriff’s arguments are best directed. * * *

The trial court did not err when it denied H.M.’s motion to strike. The trial court erred when it dismissed H.M.’s contempt petition. Reversed and remanded.

Riley, J., concurs.
Barnes, J., concurs with separate opinion [which appears on p. 14 and begins]
I concur with my colleagues in full. I write, though, to urge our Legislature to examine this provision of Indiana law and carve out some sort of law enforcement exception.

In In re the Adoption of A.G. & J.G., A.R. v. M.G. & J.G., a 7-page opinion, Judge Brown writes:
A.R. appeals from the trial court’s amended decree of adoption. A.R. raises five issues. We find dispositive the restated issue of whether the court abused its discretion in granting a motion to withdraw appearance filed by A.R.’s civil public defender. We reverse and remand. * * *

The dispositive issue is whether the trial court abused its discretion in granting Attorney Byer’s motion to withdraw appearance. A.R. argues that the court abused its discretion in granting Attorney Byer’s motion to withdraw appearance that did not comply with local rules and that this court has held that the appointment of counsel is required in an adoption case. Petitioners argue that Mother invited the error of which she complains by failing to cooperate or communicate with her attorney prior to the adoption hearing, that the denial of replacement counsel was harmless, and that remanding for a new adoption hearing would be against the Children’s best interest. * * *

The November 9, 2015 motion to withdraw appearance filed by Attorney Byer did not state that one of the conditions in section B of the rule occurred and did not state whether Attorney Byer provided A.R. with twenty-one days’ written notice with the information required in section C of the rule. Petitioners do not point to the record to show that Attorney Byer complied with the local rule. The trial court abused its discretion in granting Attorney Byer’s motion to withdraw appearance in violation of the local rule. See K.S. v. Marion Cnty. Dep’t of Child Services, 917 N.E.2d 158, 164-165 (Ind. Ct. App. 2009) (observing, in a case involving the termination of parental rights, there was no evidence that the mother’s attorney informed the mother of her intent to withdraw as required by a local rule, that parents involved in termination proceedings have a right to counsel, and that the local rule’s requirement that a withdrawing attorney expressly inform her client in writing of her intent to withdraw protects that interest, and holding the trial court abused its discretion in granting the mother’s attorney’s motion to withdraw her appearance in violation of the local rule). Further, A.R. did not have an attorney representing her during the adoption proceeding which terminated her parental rights.

Conclusion. For the foregoing reasons, we reverse and remand for further proceedings.

NFP civil decisions today (1):

Joseph Matly and Rima A. Matly v. Citimortgage, Inc. (mem. dec.)

NFP criminal decisions today (6):

Deltrice Watkins v. State of Indiana (mem. dec.)

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

Gerald Edward Johnson v. State of Indiana (mem. dec.)

Bryce Paxson v. State of Indiana (mem. dec.)

Joshua Thompson v. State of Indiana (mem. dec.)

Maximilian Spiegel v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, December 08, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Four Winds Casino South Bend expected to open in 2018"

Supplementing the stories this week from the South Bend Tribune, Andrew Steele of the NWI Times reported yesterday in a story beginning:

SOUTH BEND — A new Four Winds Casino will open in the city in early 2018, according to plans announced Wednesday by the Pokagon Band of Potawatomi Indians, adding a fifth casino to Indiana's northern end and supplementing Four Winds' three gambling operations in southwest Michigan.

But the new casino — at least in its first phase — will be smaller and have fewer types of games than allowed for in a federal government decision published last week. Four Winds South Bend will not have a hotel in its first phase, either, officials said.

The gaming devices will fall under the class II designation, which allows machines similar to slot machines but technically functioning as a bingo-style game. The tribe can operate a class II casino without approval from the state, and without the state compact required for a full-fledged, class III casino with slot machines and table games.

The casino will cover 175,000 square feet and have 1,800 electronic gaming devices, four restaurants, a player's lounge, three bars, a coffee shop and a retail outlet. Northwest Indiana's largest casino, Horseshoe Hammond, has nearly 2,600 slot machines.

Tribal officials and a Four Winds executive were quick to note that the current plan could be followed by a second phase, as happened at the New Buffalo, Michigan, flagship casino.

"It's not going to be as big as New Buffalo in the first phase, but it would ultimately be bigger than New Buffalo if we go that far," said Four Winds Chief Operating Officer Frank Freedman.

The federal government's approval, issued in conjunction with the Bureau of Indian Affairs' taking into trust about 166 acres of land east of the intersection of Ind. 23 and U.S. 31, would allow for a class III facility with 216,000 square feet of gaming space along with meeting facilities and an 18-story, 500-room hotel.

Freedman said a second phase, if business warrants it, would not necessarily include the full complex allowed by the federal government. The class III casino would require an agreement with the state, and Freedman said there have not been discussions with state officials.

Posted by Marcia Oddi on Thursday, December 08, 2016
Posted to Indiana Government

Ind. Decisions - "COA Rules on Irreparable Harm, Laches, Extension Clauses, and More in Recent Restrictive Covenant Case

The lengthy Nov. 30th Court of Appeals opinion 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. (ILB summary here, 3rd case), is the subject of a long article at JD Supra by John Drake of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. that concludes:

Indiana employers may want to reevaluate their noncompetition and non-solicitation agreements in light of this ruling to ensure they protect such legitimate interests as goodwill and relationships based on business development activities. Employers should also be aware that preliminary injunctive relief is harder to obtain the longer a company waits to take action after learning of a breach of a restrictive covenant.

Posted by Marcia Oddi on Thursday, December 08, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Court of Appeals finds Hoosiers have right to walk near Lake Michigan"

Dan Carden of the NWI Times reports on the COA opinion yesterday in Don H. Gunderson v. State of Indiana (ILB summary here). Some quotes:

Northwest Indiana property owners whose land borders Lake Michigan cannot restrict individuals from accessing the lake, fishing or walking on the beach, so long as visitors remain on ground that's usually covered by water.

In a landmark property rights decision, the Indiana Court of Appeals on Wednesday affirmed that the shore of Lake Michigan is owned by the state and held as a public trust for all Hoosiers.

The state's interest extends to the "ordinary high water mark," which the court defined as the line on the shore where the presence and action of water is continuous enough to distinguish it from land through erosion, vegetation changes or other characteristics.

That's a more flexible definition than the specific numerical level used since 1995 by the Indiana Department of Natural Resources to identify the lake's ordinary high water mark.

The court determined that the DNR rule setting a numerical ordinary high water mark impaired the rights of Hoosiers to fully enjoy the Lake Michigan shoreline, and declared it invalid.

The change means landowners bordering Lake Michigan have property rights that overlap with the state's public trust.

Specifically, the court explained that waterfront properties extend to the ordinary low water mark, subject to the public's right to use the shore area between that point and the ordinary high water mark.

"Granting lakeshore owners the right to exclude the public from land between the low and high water marks would be inconsistent with the public trust doctrine," the court said in its 3-0 ruling.

Here is a long list of earlier ILB posts on this dispute.

Posted by Marcia Oddi on Thursday, December 08, 2016
Posted to Ind. App.Ct. Decisions

Environment - "Citizens File Legal Action To Preserve Crown Hill North Woods" [Now with copy of complaint]

That is the heading of a news release yesterday by the Indiana Forest Alliance:

(INDIANAPOLIS, IN) – Today, a request for a preliminary injunction and other relief was filed in U.S. District Court to stay the U.S. Dept. of Veterans Affairs from advancing its columbaria project at Crown Hill Cemetery’s North Woods. The project would strip 14.75 acres of forest with old-growth trees that pre-date European settlement of Indiana.



“The plaintiffs seeking this injunction are neighbors, veterans, scientists and others who see the irreplaceable ecological value of this forest to the city, the surrounding neighborhood and to Indiana’s heritage,” said Jeff Stant, executive director of the Indiana Forest Alliance. “There is no question that alternative sites exist for this worthy project to honor veterans.”

The complaint states that the Veterans Administration violated four fundamental parts of the National Environmental Policy Act (NEPA):
issuing a “Finding of No Significant Impact” for a project that will indeed have a significant environmental impact;
failing to look at alternatives for the project as required by NEPA;
not meeting mandatory requirements to inform the public including holding a public hearing on their environmental documents; and
prejudicing the decision to build at the site prior to the completion of the required environmental reviews that were supposed to be used to inform the decision.

Despite vocal community opposition, the VA moved forward to solicit bids on November 9 to hire companies to remove the trees. Those bids are due back to the VA by December 9; clearing could begin before the end of December.

There is currently an offer on the table to buy the land back from the VA. November 22, the Laura Hare Charitable Trust extended an offer to purchase the land from the VA for a negotiable amount. If accepted, the land would be permanently preserved and opened up to the community for passive recreation. “The Hare Trust works to preserve natural areas, and the Crown Hill North Woods are one of the most ecologically significant sites we have tried to protect,” said Dr. Lenore Tedesco, spokesperson for the Trust. “The destruction of these woods would represent a permanent and significant loss. We believe there are more suitable locations for the columbaria. We are hopeful that our offer to purchase the parcel from the VA will enable them to find a more suitable site for the development that can be celebrated by all.”

The North Woods at Crown Hill is “a relict natural area, not a planting or ‘restoration’, but a true remnant of the once-vast hardwood forests of Indiana. ... This site carries inordinate biological and cultural value,” according to a 2006 Assessment by an ecologist with the Indiana Division of Nature Preserves.

Since the VA did not conduct a tree survey of the site, a team of five certified arborists and 20 volunteers conducted a survey of 738 trees in Crown Hill North Woods in late October. “The goal of the survey was to assess the environmental services provided by these trees by documenting their size, number and diversity,” said Jerome Delbridge, International Society of Arboriculture (ISA)-certified arborist. “Intact forests provide a range of services, including saving energy, storing carbon to mitigate climate change, intercepting and storing storm water to lessen flooding, and filtering pollutants from air. They also increase property values in nearby communities.”

The survey identified 550 healthy trees and included 36 different tree species. The largest tree noted was a Northern Red Oak more than five feet across (63 inches) and more than 16 feet around (16.6’ circumference). Numerous trees were found to be more than four feet across.

“There are very few woods of this quality remaining in Marion County,” said Rebecca Dolan, Ph.D., a botanist and plaintiff in the case. “The vegetation ranks comparably to that of the highest quality nature preserves in Central Indiana.” The lack of invasive plants in the forest interior and the 125 species of plants (90% of them native) make this forest a rarity, and a treasure.

“The loss of this forest dishonors us all,” said Vietnam War-era veteran Paul Richard, also a plaintiff. “The VA should select a more sustainable alternative.”

Many more photos are available here.

[Updated at 10:33 a.m.] The ILB has now received a copy of the 40-page complaint in Indiana Forest Alliance v. Robert A. McDonald, Sec. of Veterans Affairs, et al.

[More] Here is a story in today's Indianapolis Star, reported by Amy Bartner. A quote:

Some of the trees "were growing here before our state came into being, indeed before the United States of America existed," Indiana Forest Alliance Executive Director Jeff Stant said during a news conference

Posted by Marcia Oddi on Thursday, December 08, 2016
Posted to Environment | Indiana Courts

Wednesday, December 07, 2016

Environment - "Trump leaning toward Oklahoma AG Pruitt for EPA chief" [Updated]

A bulletin from Politico includes:

Oklahoma Attorney General Scott Pruitt is President-elect Donald Trump's leading candidate to head the EPA, three sources close to the transition told POLITICO.

Pruitt, who has bashed President Barack Obama's EPA, is meeting with Trump at Trump Tower Wednesday. Trump's transition is expected to announce his EPA chief imminently.

One Trump transition source said Pruitt is the "front-runner" for the job, and another source close to the transition said Pruitt's interviews with the Trump transition team had gone well. But sources cautioned that no final decision has been made.

The nomination would put one of the country's leading EPA critics at the helm of the agency. Pruitt has sued the agency over its water regulations and its climate change regulations for power plants.

[Updated at 3:03 p.m.] NYT story: "Donald Trump Picks Scott Pruitt, Ally of Fossil Fuel Industry, to Lead E.P.A."

Posted by Marcia Oddi on Wednesday, December 07, 2016
Posted to Environment

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (4):

In John C. Morris v. Custom Kitchen & Baths , a 14-page opinion, Judge Robb writes:

John Morris is a licensed building contractor in Vanderburgh County, Indiana, and the sole proprietor of Custom Kitchen & Baths (“CKB”). Morris often uses his contractor’s license, skills, tools, and vehicle in volunteer community projects, particularly with the Boy Scouts of America, in which his son is a participant. In August 2012, Morris suffered an injury while constructing a 10’ x 10’ garden storage shed (“Olivet Project”) for Olivet Presbyterian Church (“Church”) in Evansville, Indiana. The Olivet Project was constructed as a volunteer Boy Scout project and Morris was not compensated for its construction. Following his injury, Morris filed claims with CKB’s worker’s compensation carrier, the Church’s insurance company, and the liability carrier for the Boy Scouts, all of whom paid money to or on behalf of Morris. In 2013, Morris filed an Application for Adjustment of Claim with the Indiana Worker’s Compensation Board (“Board”), which a Single Hearing Member denied. Morris then appealed to the full Board, which affirmed the Single Member’s decision. Morris appeals from the Board’s denial of his Application for Adjustment of Claim, raising one issue for review: whether his injury arose out of and in the course of his employment. CKB cross-appeals, seeking reimbursement of monies paid to or on behalf of Morris. Concluding Morris’ injury arose out of and in the course of his employment, and is therefore covered by Indiana’s Worker’s Compensation Act, we reverse the decision of the Board and remand for a determination of disability benefits. * * *

We conclude the facts presented inescapably lead to a decision opposite of the Board’s decision, and that Morris’ injury arose out of and in the course of his employment. Therefore, Morris’ injury is covered by the Indiana’s Worker’s Compensation Act. Accordingly, we reverse and remand for determination of the benefits he should receive.

In Don H. Gunderson, et al. v. State of Indiana, et al. , a 22-page opinion, Judge May writes:
“The shores of the Great Lakes may look serene, but they are a battleground. Members of the public enjoy using the shores for fishing, boating, birding, or simply strolling along and taking in the scenic vistas.” Kenneth K. Kilbert, The Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. 1, 2 (2010). “Repeatedly, however, owners of land bordering the Great Lakes (i.e., littoral owners), armed with deeds indicating they own the shore to the water’s edge or even lower, have tried to stop members of the public from using their property above the water’s edge.” Id. (internal footnotes omitted). Today we are called on to decide one such case.

Don H. Gunderson and Bobbie J. Gunderson, as trustees of the Don H. Gunderson Living Trust (collectively, “Gunderson”), sought a declaratory judgment that their Lake Michigan property extends to the water’s edge, wherever the water’s edge is at any given moment. The State of Indiana and the Indiana Department of Natural Resources (“DNR”) (collectively, “State”), Alliance for the Great Lakes and Save the Dunes (“Alliance-Dunes”), and Long Beach Community Alliance (“LBCA”), argued the State holds in trust for the public all land up to the ordinary high water mark (“OHWM”), regardless whether that land is covered by water. * * *

We find persuasive the Michigan Supreme Court’s analysis in Glass v. Goeckel, 703 N.W.2d 58 (Mich. 2005), reh’g denied, cert. denied sub nom Goeckel v. Glass, 546 U.S. 1174 (2006). It addressed a dispute similar to that before us – i.e., whether the public trust land extends up to the ordinary high water mark or whether, as Gunderson argues, it applies only to land that is actually under water at any particular moment. * * *

Following the holding and reasoning in Glass, we conclude Gunderson’s private rights are able to co-exist with those rights of the public trust. Therefore, the land at issue below the OHWM is open to limited public use, such as gaining access to the public waterway or walking along the beach, as described in Glass. * * *

Alliance-Dunes argues the DNR is without authority to set the OHWM as it did in 312 IAC 1-1-26(2). Regulations set forth by administrative boards “must be reasonable and reasonably adapted to carry out the purpose or object for which these boards were created. Potts v. Review Bd. of Indiana Emp’t Sec. Div., 438 N.E.2d 1012, 1015 (Ind. Ct. App. 1982). “If the rules are in conflict with the state’s organic law . . . they are invalid.” Id. We hold 312 IAC 1-1-26(2) is in conflict with well-established case law regarding the state’s ability to regulate the shores of Lake Michigan.

In Lake Sand we held: “The state in its sovereign capacity is without power to convey or curtail the right of its people in the bed of Lake Michigan.” 120 N.E. at 716. As the OHWM prior to 1995 was the common law OHWM as held in Shively, 152 U.S. at 41, the DNR’s staking the OHWM at the measurements set forth in 312 IAC 1-1-26(2) most certainly conveyed or curtailed the rights of the people of Indiana in Lake Michigan. Therefore, that portion of the Indiana Administrative Code is invalid, and the OHWM remains that defined by common-law. * * *

The designated evidence indicates the boundary of Section 15 is Lake Michigan. We held above, based on Glass, Gunderson’s property rights overlap with those of the public trust. Therefore, the northern boundary of Gunderson’s property is the ordinary low water mark, subject to the public’s rights under the public trust doctrine up to the OHWM. * * *

We affirm the trial court’s findings regarding the nature and scope of the public trust as it relates to Lake Michigan. However, we reverse the trial court’s determination of the OHWM’s location.

Gunderson owns legal title up to the northern boundary of Section 15, and the State holds the land below the OHWM as defined at common law. The designated evidence consistently indicates the northern boundary of Section 15 is Lake Michigan. Therefore, we reverse the trial court’s finding northern boundary of Section 15 is unknown, and hold the northern boundary of Section 15 is the ordinary low water mark, subject to the public’s rights as part of the public trust. Affirmed in part and reversed in part.

In Reginald Webster v. State of Indiana , a 6-page opinion, Judge Crone writes:
Reginald Webster appeals his conviction for class A misdemeanor carrying a handgun without a license, following a bench trial. He raises two issues for our review, one of which we find dispositive: namely, he asserts that the trial court clearly erred in denying his Indiana Trial Rule 41(B) motion for involuntary dismissal. Finding that dismissal was warranted, we reverse his conviction. * * *

In response to Webster’s motion for involuntary dismissal, the State argued that similar to the defendant’s possession of a valid license, the location where the defendant is carrying the handgun is an exemption or exception to, rather than an element of, the offense of carrying a handgun without a license. Thus, the State maintained, and the trial court mistakenly agreed, that it was Webster’s burden to prove that 1554 East Naomi Street was his dwelling, property, or fixed place of business as opposed to the State having the burden to prove that 1554 East Naomi Street was not his dwelling, property, or fixed place of business. This was clear error. As we already stated, the location where the defendant is carrying a handgun is an essential element of the charged offense.

In Albert Burton v. State of Indiana , 5-page opinion, Judge Crone writes:
Albert Burton pled guilty to operating a motor vehicle while driving privileges are suspended as a level 6 felony under Indiana Code Section 9-30-10-16. The version of the statute in effect when Burton committed the crime provided that a person convicted of a felony under the statute “forfeits the privilege of operating a motor vehicle for life.” Ind. Code § 9-30-10-16(c). Because this provision was repealed before he was sentenced, Burton argued that it did not apply to him. The trial court disagreed but stayed entry of judgment to allow Burton to perfect an interlocutory appeal on the issue. We affirm the trial court and remand with instructions to enter judgment accordingly. * * *

The gist of Burton’s argument is that the lifetime forfeiture provision of Indiana Code Section 9-30-10-16(c) does not apply to him because it was repealed after he committed the offense and before he was sentenced. As a general rule, the law in effect when a crime was committed is controlling. Collins v. State, 911 N.E.2d 700, 708 (Ind. Ct. App. 2009), trans. denied. There are exceptions to this rule,[4] but Burton does not assert, let alone offer any cogent argument, that any of those exceptions apply here. Therefore, we affirm the trial court’s determination that the statute’s lifetime forfeiture provision applies to Burton and remand with instructions to enter judgment accordingly.
______________
[4] For example, “[t]he doctrine of amelioration allows a defendant to be sentenced under the more lenient provisions of a statute which is in effect at the time of sentencing rather than be sentenced under a more harsh statute in effect at the time the offense was committed.” Winbush v. State, 776 N.E.2d 1219, 1224-25 (Ind. Ct. App. 2002), trans. denied (2003). * * *

NFP civil decisions today (1):

In the Term. of the Parent-Child Relationship of: R.P., C.P. and A.A. (Minor Children), and L.B. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (4):

William E. Schini v. State of Indiana (mem. dec.)

James E. Robinson v. State of Indiana (mem. dec.)

Omega R. McCullagh v. State of Indiana (mem. dec.)

William S. Smith v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, December 07, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Computer protection cost is close to $200,000: Commissioners OK contracts in wake of ransomware attack"

Updating earlier ILB posts on the Madison County ransomware attack, Ken de la Bastide of the Anderson Herald Bulletin reports today:

ANDERSON — The cost to Madison County as a result of the ransonware attack is approaching $200,000 after the Madison County Commissioners approved several contracts.

The commissioners on Tuesday approved contracts for off-site storage of data, a cooperative effort with the city of Anderson for firewall protection and a backup system for the court system.

Earlier this year the county’s computer system was hit by a ransomware attack that locked up county files. At the recommendation of the county’s insurance carrier, a $21,000 ransom was paid to obtain the encryption keys.

Lisa Cannon, director of the IT Department, said a contract with U.S. Signal will cost the county $6,400 per month to store data off-site.

She said the total cost of the three contracts is $198,180 with approval from the Madison County Council expected Tuesday.

Cannon said a second option with US Signal for the entire county computer system including the servers would have cost $11,900 per month.

She said if the individual departments believe they need the additional backup system for their servers, that cost should be included in departmental budgets for 2017.

Cannon said another system being implemented will protect the court system computers from viruses and a potential ransonware attack.

Included in the request was a $240 monthly charge to work in conjunction with the city of Anderson on multiple firewalls to protect the computer systems.

Cannon said she has talked to members of the county council who support the expenditure for the backup systems.

This is on top of the $17,500 the county spent to bring in US Signal to help bring the county’s computer system back on line.

Posted by Marcia Oddi on Wednesday, December 07, 2016
Posted to Indiana Government

Ind. Law - "DNA bill would keep sample in system even if charges are dismissed" [Updated]

Updating this ILB post from Nov. 7th, quoting a story from Madeline Buckley of the Indianapolis Star, reporter Buckley has another story today, now that a bill has been prepared (although it apparently is not yet available to the public). From the story [ILB emphasis]:

Indiana lawmakers are once again introducing a bill that would require those arrested on a felony charge to submit to the collection of their DNA for a national database — but this bill would make it harder for arrestees to remove their DNA from the database.

A bipartisan group of lawmakers, along with law enforcement and prosecutors, gathered Tuesday to unveil a bill that state Sen. Erin Houchin, R-Salem, plans to introduce when the next session of the General Assembly convenes in January. Houchin cited the recent arrest of a suspect in the killing of an 82-year-old man — an arrest made because of a DNA collection law in Ohio — as an example of the potential impact of such a law in Indiana.

But Houchin's bill takes a key departure from past versions of the bill: Arrestees could remove their DNA from the database only if they are acquitted of the charge. If prosecutors never file criminal charges after an arrest, or if charges are dismissed, the DNA would remain in the database, under her proposal.

It's a change that is likely to be challenged by critics who believe DNA should be removed from the database if there is not a conviction. However, Houchin said that measure is crucial to keeping people safe.

Removing DNA from the system only upon acquittal is important, she said, because of the challenges of bringing sex crimes to trial. She also noted that often if a case is transferred to federal court, charges are dismissed by the state. * * *

Larry Landis, executive director of the Indiana Public Defender Council, said the group likely would advocate for removal of DNA from the database if no conviction results from the arrest.

"If you’re not convicted, it should be expunged," he said.

Whether a DNA collection bill gets a hearing in the House Courts and Criminal Code Committee depends on how many bills are assigned to the committee, said Rep. Thomas Washburne, who chairs the committee. He said any opposition to measures in the bill could be worked through in committee hearings.

"The opposition to the bill will come from people who think that being arrested is not enough to warrant the invasion of privacy of taking DNA and giving it to government," said Washburne, R-Darmstadt. "Anything that makes it more difficult to get the DNA sample out of the system would engender opposition."

[Updated 12/8/16] This long story today by Marueen Hayden, CNHI State Reporter, includes:
The case may compel reluctant lawmakers to act, said Rep. Tom Washburne, R-Washington, chairman of the House Courts and Criminal Code Committee.

Washburne said he’s opposed to the idea of expanded DNA collection, citing privacy concerns and the potential for abuse by police and prosecutors. But he said he’s likely to give the bill a committee hearing because it’s worthy of debate.

“It pits two fundamental, legitimate things against each other,” he said — the desire to lock up dangerous perpetrators against the forced collection of evidence from those not convicted of crimes.

“That creates a real tension for lawmakers,” he said.

The tension existed for the U.S. Supreme Court, too, in the North Carolina case three years ago that cleared the way for an arrested person’s DNA to be collected and stored in a national database.

The 5-to-4 decision split the justices in an unusual way, with the majority reasoning that a sample doesn’t violate Fourth Amendment protections against unreasonable searches and seizure.

The late Justice Antonin Scalia, a staunch conservative, dissented with three of the court’s liberal judges. He called mandatory DNA sampling a violation of basic civil liberties.

Washburne predicted a similar split in the General Assembly. “We’re going to have to really wrestle with this,” he said.

Posted by Marcia Oddi on Wednesday, December 07, 2016
Posted to Indiana Government

Ind. Gov't. - Butler University Police to release records when requested "as if HB 1022 had become law"

Katie Goodrich, editor of The Butler Collegian, reports in a long story today that begins:

The Butler University Police Department adopted a policy to release some of their police records when requested.

No law mandated this action, but recent activity on the legal landscape of Indiana did.

The Indiana Supreme Court affirmed private university police departments do not have to release their records under Indiana’s Access to Public Records Act in a case two weeks ago.

Gov. Mike Pence vetoed House Bill 1022 during the 2016 legislative session that would have released some private university police records.

Indiana law also does not consider BUPD a public agency.

Despite these facts, BUPD already released records to the Collegian for some articles this year, including the report about the theft from the bookstore in Atherton Union.

“There should be transparency in what we do,” Public Safety Director Ben Hunter said. “If you talk to other campus police chiefs, they would absolutely agree.”

After Butler’s General Counsel Claire Aigotti was told about the new policy, BUPD began operating as if the proposed bill became law.

“What I’ve told my team is that if a student rises to the level of an arrest, that’s a life choice they made,” Hunter said. “They can’t be disappointed if that is a public record. So, we are moving forward like the bill passed.”

House Bill 1022 defined arrest records and other criminal offenses at private universities as public records, meaning BUPD and other private university police departments would have to release those records under Indiana law, but it did not apply to cases handled within the university.

The bill was crafted to not include records protected under Family Educational Rights and Privacy Act, commonly called FERPA. This federal law seals student information, such as grades, health records, discipline files or financial information.

Later in the story:
Hunter and colleagues from the Independent Colleges of Indiana, a nonprofit organization for the 31 private colleges in the state, worked to help pass this bill. Only one legislator voted against the bill, but it could not be law because of Pence’s veto.

This all happened while private university police departments gained headlines from the ESPN v. University of Notre Dame appeal court case, in which an ESPN reporter sued for access to Notre Dame police reports about possible criminal activity of football players.

Pence’s veto came a week after the Court of Appeals unanimously decided on Notre Dame’s side.

“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,” Pence said in a news release.

ILB: From a SB Tribune story at the time:
In a statement explaining his veto, Pence said he has "long believed in the public’s right to know and a free and independent press."

"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 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. * * *

In the ESPN-Notre Dame court battle, the appeals court ruled that the university's police department is a public agency and subject to open records laws. The South Bend Tribune filed a brief in support of ESPN in the court case, and urged Pence in an editorial last week to veto HB 1022. * * *

The bill was sponsored by State Rep. B. Patrick Bauer, D-South Bend. It was pushed by the state's private colleges and would have exempted them from more stringent crime reporting requirements faced by other police agencies in Indiana, including those on public university campuses.

Posted by Marcia Oddi on Wednesday, December 07, 2016
Posted to Indiana Government

Tuesday, December 06, 2016

Ind. Decisions - 7th Circuit decides dispute between Benton Co. wind farm and Duke re wind-generated power

In Benton County Wind Farm LLC v. Duke Energy Indiana, Inc. (SD Ind., Barker), a 26-page opinion, including an 11-page concurring opinion, Judge Easterbrook writes:

In 2005 Duke Energy Indiana offered to buy 100 megawatts of renewable energy at a price high enough to enable potential sellers to finance the construction of wind turbines. As part of the deal Duke would acquire renewable-energy credits that buyers or generators of wind energy can trade or sell to other utilities that lack wind generation. Benton County Wind Farm (Benton) accepted Duke’s offer and built a 100-megawatt facility that became operational in 2008. The contract between Duke and Benton requires Duke to pay Benton for all power delivered during the next 20 years. Duke does not have its own transmission lines in Benton County, and the contract requires Benton to deliver to lines owned by Northern Indiana Public Service Company (NIPSCO) or some other place designated by the regional transmission organization, the Midcontinent Independent System Operator (MISO). * * *

Potential buyers and sellers of electricity could and did foresee when negotiating this contract (and others like it) that electrical grids may be swamped by new sources of renewable power, which usually is located far from the centers of demand. They needed to allocate the risk of that development, which predictably would compel MISO to alter its rules for which sources could put power on the grid. Allocating the risk to Benton would have made it hard, perhaps impossible, to finance the project’s construction, while leaving Duke and similar utilities no incentive to expand the regional grids as wind power became available. Allocating the risk to Duke facilitates both construction of renewableenergy sources and better incentives to match the size of the transmission grid to the capacity for local generation. We read this contract as allocating the risk to Duke, which means that Benton receives the compensation provided by §4.6(a) and Duke has the right incentives to build or buy extra transmission capacity. * * *

The judgment is reversed, and the case is remanded with instructions to determine the relief to which Benton is entitled.

[p. 15] POSNER, Circuit Judge, concurring. I agree with the deci‐ sion to reverse the judgment of the district court and remand for a calculation of damages. But I think the majority opin‐ ion’s analysis could be simplified, and in addition I disagree with the majority’s discussion of damages for the breach of the second contract. * * *

I trust that on remand the district judge will be conscious of the “long tradition in contract law of reading contracts sensibly,” not as “parlor games but [as] the means of getting the world’s work done.” Beanstalk Group, Inc. v. AM General Corp., 283 F.3d 856, 860 (7th Cir. 2002), quoting Rhode Island Charities Trust v. Engelhard Corp., 267 F.3d 3, 7 (1st Cir. 2001).

Posted by Marcia Oddi on Tuesday, December 06, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court affirms trial court in dissolution of marriage dispute

In In re the Marriage of: Thomas Todd Reynolds v. Tricia Reynolds, an 11-page, 4-1 opinion, Justice David writes:

At issue is whether the trial court abused its discretion when it found Father in contempt for failing to provide Mother certain income documentation as required by the parties’ dissolution decree and agreed order of modification. We hold that it did not. Specifically, we hold that: 1) Mother’s motion for rule to show cause was specific enough to excuse strict compliance with the contempt statute and protect Father’s due process rights; 2) Father waived his objections to the evidentiary findings of the trial court when he agreed to a summary proceeding with no objection; and 3) under the facts and circumstances of this case, the trial court was not required to give Father an opportunity to purge himself of contempt. Accordingly, we affirm the trial court. * * *

The Court of Appeals reversed the trial court for abuse of discretion in a memorandum [NFP] decision for two reasons: 1) the trial court did not strictly comply with the rule to show cause statute; and 2) the trial court failed to give Father a way to purge himself of contempt. Reynolds v. Reynolds, 2016 WL 612763 at *6 (Ind. Ct. App. 2016).

We now grant transfer and affirm the trial court, thereby vacating the Court of Appeals opinion. Ind. App. Rule 58(A). * * *

In light of the standard of review and because: 1) Father received sufficient notice of the specific factual allegations underlying the contempt proceeding; 2) Father did not object to a summary proceeding and the evidence was sufficient to support the trial court’s findings; and 3) the trial court was not required to offer Father an opportunity to purge his contempt under these circumstances, we hold that the trial court did not abuse its discretion in finding Father in contempt for not producing certain tax documents pursuant to the parties’ dissolution decree and the agreed order of modification. Accordingly, we affirm the trial court.

Rush, C.J., Rucker and Massa, J.J., concur.
Slaughter, J., dissents with separate opinion. [that begins, at p. 10]
I respectfully dissent from the Court’s decision to reinstate the indirect contempt against Father. A key procedural protection within the governing contempt statute applies here. See Ind. Code § 34-47-3-5. Specifically, Father was entitled “to be served with a rule of the court” that “clearly and distinctly set forth the facts that are alleged to constitute the contempt”. Id. §§ 34-47- 3-5(a), 5(b)(1). Given the trial court’s acknowledged failure to issue a rule to show cause in accordance with this statutory prerequisite, I would reverse its contempt order. * * *

There can be no mistaking the legislative mandate here. The statute’s opening words command that the procedural requirements recited in this chapter apply “[i]n all cases” of indirect contempt. I.C. § 34-47-3-5(a). The statute’s plain meaning required the trial court to issue a rule to show cause detailing the factual basis for Father’s alleged contempt. Because the court failed to do so, its contempt order should not stand. I respectfully dissent from our decision excusing the trial court’s noncompliance and reinstating Father’s contempt.

Posted by Marcia Oddi on Tuesday, December 06, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: Transfer list for week ending December 2, 2016

Yesterday in this post the ILB noted:

Today the ILB received this note:
After noticing the peculiar circumstance of a 3-0 petition denial on Monday, I and my associate, Brooke Smith, were motivated to write an opinion on that topic. I thought it might be of particular interest to you and the law blog in light of your audience, which I believe has numerous appellate lawyers. You have my permission to publish if you deem appropriate.

Scott L. Barnhart
Keffer Barnhart LLP
Indianapolis, Indiana

Here is the memo, which the ILB believes is worth reading.

Posted by Marcia Oddi on Tuesday, December 06, 2016
Posted to Indiana Transfer Lists

Ind. Gov't. - The 2017-2019 Budget Committee Hearings Begin Tomorrow, But Information is Sparse [Corrected]

Each budget year state governmental entities appear before the State Budget Committee, presenting their plans and budget requests for the next biennium. Here is this year's schedule. Here is a PDF version, formatted differently.

The first session is tomorrow, Dec. 7th. Here are the presentations of particular interest to the ILB:

What I don't see are the agency budget requests. These should be available before the agency budget requests are presented, plus the hearings should be videocast, if the past is a guide. (For instance, see this budget agency information on the 2015-2017 hearings, with links to the actual agency budget requests and transmittal letters).

However, right now, with a number of agencies, including the OAG, due to make their presentations tomorrow, I am not finding information on either their requests or on videocasting.


[Corrected 12/14/16] For future reference, the agency requests are posted, when the agency testifies.

Additionally, the testimony is videocast live, from Room 404, but does not appear to be archived.

Posted by Marcia Oddi on Tuesday, December 06, 2016
Posted to Indiana Government

Ind. Decisions - Supreme Court decides one today, an attorney disciplinary action re an Indianapolis attorney

In In the Matter of: Divina K. Westerfield, an attorney disciplinary action, the Supreme Court, in a 4-1, per curiam opinion, writes:

We find that Respondent, Divina K. Westerfield, committed attorney misconduct by improperly soliciting employment, failing to refund unearned fees, and engaging in the unauthorized practice of law in Florida. For this misconduct, we conclude that Respondent should be suspended for at least eighteen months without automatic reinstatement. * * *

In each case, the client (who did not have a prior relationship with Respondent or Tope) met Tope through a seminar or similar event. With Tope’s facilitation, each client signed a flat fee representation agreement with Respondent’s firm and provided Tope a series of post-dated installment checks. Thereafter, Respondent’s firm did little or no work for the clients and never pursued a quiet title action or loan reduction as promised. In each case, the client eventually sought a refund of unearned fees. In two cases, Respondent issued no refund, and in the third case she made only a partial refund. * * *

We concur in the hearing officer’s findings of fact and conclude that Respondent violated these Florida Professional Conduct Rules prohibiting the following misconduct:

4-1.5(a): Charging and collecting a fee generated by employment obtained through prohibited solicitation.

4-1.16(d): Failing to refund an unearned fee.

4-5.5(a): Engaging in the unauthorized practice of law.

4-5.5(b)(1): Establishing an office for the practice of law in Florida despite not being licensed to practice in Florida.

4-7.18(a)(1): Improperly soliciting, either directly or through an agent, employment from a person with whom the lawyer has no prior relationship when a significant motive is the lawyer’s pecuniary gain.

Turning to the issue of appropriate sanction, we first observe that Respondent has a lengthy disciplinary history. * * *

Given the seriousness of the misconduct and the substantial facts in aggravation, we agree with the hearing officer’s recommendation and conclude that Respondent should be suspended for at least eighteen months, after which she may be reinstated only after proving her remorse, rehabilitation, and fitness to practice law. * * *

All Justices concur, except David, J., who dissents regarding the sanction, believing that more severe discipline is warranted.

Posted by Marcia Oddi on Tuesday, December 06, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In L. Ray Yeager, and Phyllis L. Yeager v. Deutsche Bank National Trust Company, as Trustee of the Residential Asset Securitization Tust 2005-A1, Mortgage Pass-Through Certificates, et al., a 10-page, 2-1 opinion, Judge Brown writes:

In this interlocutory appeal, L. Ray Yeager and Phyllis L. Yeager (collectively, the “Yeagers”) appeal the trial court’s provisional order for payment of mortgage, taxes, and insurance premiums (the “Provisional Order”) in a foreclosure action. The Yeagers raise one issue which we revise and restate as whether the court abused its discretion by failing to conduct an inquiry into the Yeagers’ ability to pay prior to issuing the Provisional Order. We reverse and remand. * * *

The record reveals that the court did not hold a hearing or otherwise conduct any inquiry on which to base its determination of the monthly payment prior to issuing the Provisional Order. Indeed, the court granted the Bank’s motion before the Yeagers responded to it. The statute expressly provides that, in issuing a provisional order under subsection (b), “[t]he amount of the monthly payment . . . shall be determined by the court, which may base its determination on the debtor’s ability to pay” and that the amount of the monthly payment “may not exceed the debtor’s monthly obligation under the mortgage at the time the action is filed.” While the statute does not expressly require a hearing, it is implicit that the court have the necessary information on which to base its determination, including the debtor’s current financial information. The record contains no evidence of the Yeagers’ current financial situation, such as earnings from any employment, income from other sources, or other assets. The Indiana legislature enacted Indiana Code §§ 32-30-10.5 to “avoid unnecessary foreclosures” and to facilitate “the modification of residential mortgages in appropriate circumstances.” Nationstar Mortg., LLC v. Curatolo, 990 N.E.2d 491, 493-94 (Ind. Ct. App. 2013) (citing Ind. Code § 32- 30-10.5-1(b)). Under these circumstances, we conclude that the trial court abused its discretion when it failed to hold a hearing or to otherwise obtain information to determine the amount of the Yeagers’ provisional monthly payment.

Conclusion. For the foregoing reasons we reverse and remand for further proceedings consistent with this decision. Reversed and remanded.

Robb, J., concurs. Mathias, J., dissents with opinion [whichbegins, on p. 8] I respectfully dissent from the majority’s conclusion that the trial court abused its discretion by ruling on the Bank’s motion without a hearing. * * *

Here, the trial court determined that the monthly payment should be equal to the monthly mortgage obligation. This was within the trial court’s discretion under the statute, and I see no reason to remand for a hearing to require the trial court to consider something, i.e., the debtor’s ability to pay, which the controlling statute does not require the trial court to consider. Although it might be a better policy to require the trial court to consider the debtor’s ability to pay, the statute does not require this, and I do not believe we are at liberty to engraft such a requirement onto the clear language of the statute.

NFP civil decisions today (1):

In Charles Sweeney v. David C. Long, President Pro Tempore, Indiana General Assembly, et al. (mem. dec.), a 3-page opinion on a petition for rehearing, Sr. Judge Friedlander concludes:

A § 1983 claim need only allege that a person has deprived the claimant of a federal right while that person was acting under color of state or territorial law. Thornton v. State, 43 N.E.3d 585 (Ind. 2015). Sweeney has not met even this low bar as to Senator Long, alleging only that the Indiana General Assembly has failed to act or respond to his requests that Indiana Code section 35-33-10-5 be repealed. Sweeney has not identified how Senator Long has deprived Sweeney of a federal right while acting in his official capacity.
NFP criminal decisions today (3):

Amber Lee Ryle v. State of Indiana (mem. dec.)

Arthur Scott v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Tuesday, December 06, 2016
Posted to Ind. App.Ct. Decisions

Courts - More on: Many in limbo because a federal district judge in Texas ruled to halt an overtime rule

Supplementing this long ILB post from Dec. 1st, Hayleigh Colombo of the IBJ wrote yesterday:

The Obama administration’s new overtime rule is held up in federal court, but that hasn't stopped some Indiana employers from instituting changes to comply with the law.

If fully implemented, the rule—which raised the pay threshold for salaried workers to be exempt from overtime pay—would have affected about 87,000 Indiana workers and 4.2 million workers nationwide. * * *

A federal judge in Texas on Nov. 22 to temporarily suspended implementation of the rule, which was to go into effect Dec. 1. Indiana was one of 21 states that sued the U.S. Department of Labor in September over the rule.

Because of the short turnaround time, Indianapolis compensation adviser Julie Bingham said, many employers had already instituted or communicated salary changes to their employees.

“This is truly a unique situation,” said Bingham of FirstPerson Advisors. “Everyone’s scrambling. My sense is that many employers here will likely just let that be the new reality and hold to those increases.”

Wal-Mart, for example, raised entry-level managers' starting salaries from $45,000 to $48,500 in September to stay above the threshold for paying overtime, and has said that it plans to stick with the raises.

The state of Indiana—itself one of the largest employers in the state—implemented its compliance plan on Nov. 20, according to the Indiana State Personnel Department.

That means 69 state employees received salary increases totaling about $140,000 per year.

“The small number of employees that received salary adjustments [will] retain those new amounts,” spokeswoman Ashley Hungate told IBJ. State employees who would have become eligible for overtime under the new rules will remain exempt from overtime.

Ivy Tech Community College had decided to implement its plan “very close” to last Thursday’s effective date, so some people’s salaries were raised, said spokesman Jeff Fanter.

Other changes will go into effect if the rule stands up in court.

“Preparations are in place for a future effective date should the injunction be overturned,” Fanter told IBJ.

But Purdue University decided not to move forward. About 600 Purdue employees have been notified that their pending salary increases have been put on hold, while about 600 others were told they would remain salaried employees ineligible for overtime.

Bingham said her firm is not recommending that employers take back increases they have already communicated to workers.

Posted by Marcia Oddi on Tuesday, December 06, 2016
Posted to Courts in general | Indiana Government

Environment - North Carolina Gov. McCrory finally concedes defeat

Recall these stories from 2014:

Environment - "Coal Ash Spill Shows How a State Watchdog Was Defanged"

Updating this ILB post from Feb. 26th on the Duke coal ash spill in North Carolina, here are some quotes from the beginning of a lengthy story just posted online by Trip Gabriel of the NY Times:RALEIGH, N.C.

Posted in The Indiana Law Blog on February 28, 2014 03:26 PM

Environment - The Duke coal ash spills in North Carolina and the West Virginia water contamination

While many have been focusing on the same-sex marriage issues, major environmental disasters have been happening in two eastern states known for their pushback against government regulation. The states are West Virginia, home of mountain top mining, and North Carolina,...

Posted in The Indiana Law Blog on February 26, 2014 02:16 PM

A quote from the NYT story at the time:
The episode is a huge embarrassment for [Governor] McCrory, who worked at Duke Energy for 28 years and is a former mayor of Charlotte, where the company is based. And it has become yet another point of contention in North Carolina, where Republicans who took control of the General Assembly in 2011 and the governor’s mansion last year have passed sweeping laws in line with conservative principles. They have affected voting rights and unemployment benefits, as well as what Republicans called “job-killing” environmental regulations, which have received less notice.
Today James Hohmann on the Washington Post's Daily 202 writes that "bathroom bill backlash cost North Carolina’s Republican governor his job" but I suspect the coal ash spill entered into it:
Twenty-seven days after the election, after a recount failed to shift the outcome, North Carolina Republican Gov. Pat McCrory finally conceded yesterday to his Democratic challenger. He is the first governor to ever lose reelection in the Tar Heel State. * * *

In a race so close, one can always claim that small factors were determinative at the margins. Some were mad about the elimination of a tax credit that encouraged movie production in the Wilmington area, for example, and a segment of commuters was upset about a toll project on Interstate 77. But a close review of the election returns, combined with voter interviews, makes clear that McCrory’s reluctant embrace this spring of House Bill 2 – known as “the bathroom bill” – cost him his job more than anything else.

Posted by Marcia Oddi on Tuesday, December 06, 2016
Posted to Environment

Ind. Decisions - "Indiana courts struggle to say when child discipline becomes a crime"

Dan Carden of the NWI Times reports on last week's Court of Appeals opinion in Sauntio Carter v. State of Indiana, which the ILB summarized here (4th case) on Nov. 30th.

From the definitely worth-reading story:

INDIANAPOLIS — Hoosier parents who discipline their children using spanking, whipping or beating generally are immune from criminal sanctions for battery — unless the punishment goes too far.

Where is the line? No one really seems to know.

The Indiana Court of Appeals last week affirmed an Indianapolis man's misdemeanor conviction for battery causing bodily injury after he struck his 14-year-old daughter with a belt 14 times on her buttocks, thighs, back and arms.

According to court records, Sauntio Carter resorted to corporal punishment after he caught the girl posting sexually explicit images online, and his prior discipline, including taking the girl's phone away and making her clean the house, did not change her behavior.

State officials got involved when the girl told her school guidance counselor the day after the punishment that her arm was hurting.

An investigation by the Department of Child Services eventually led to Carter's conviction.

Appeals Judge Patricia Riley, a Rensselaer native, noted that the Indiana Supreme Court has set up a complicated, six-point balancing test to determine whether a parental punishment is sufficiently reasonable to be exempt from criminal charges.

Under that standard, the appellate court ruled the trial judge in this case properly weighed the evidence and determined Carter exceeded his parental authority and committed a crime.

But Riley said her review of similar cases found there is a "lack of clear guidance for parents to be able to distinguish between reasonable discipline and battery."

For example, the Indiana Supreme Court in 2008 concluded in a 4-1 ruling written by Justice Robert Rucker, a Gary native, that an Indianapolis mother was justified in whipping her 11-year-old son up to seven times with a belt or extension cord on his buttocks, arms and thighs. [Willis v. State]

But in 2015, the Court of Appeals upheld the misdemeanor battery conviction of an Indianapolis mother who struck her 13-year-old daughter with a belt 10 to 20 times on her arms, shoulders and legs. [Smith v. State, also by J. Riley]

Appeals Judge Terry Crone, of South Bend, wrote in a concurring opinion that no area of the law "is so fraught with subjectivity," and wondered if Carter had doled out 13 strikes with a belt it might have been deemed reasonable. Or maybe 15 strikes with less bruising?

"Everyone agrees that a line needs to be drawn, but current case law offers little guidance as to where that line is," Crone said.

He admitted part of the problem is that attitudes toward corporal punishment vary widely among Indiana residents, especially between generations and individuals from different cultures, though he said that should not preclude setting a definitive standard.

"If the purpose of the criminal law is to put a person on notice of what conduct is proscribed and what is permitted, then how can one's guilt or innocence depend upon how someone else disciplines his or her children when there is no consensus about what is appropriate?"

Ultimately, Crone acknowledged that Indiana courts simply will have to continue struggling along until either the General Assembly adopts clear guidelines for parental discipline or the Supreme Court fashions a more workable test.

Posted by Marcia Oddi on Tuesday, December 06, 2016
Posted to Indiana Decisions

Monday, December 05, 2016

Ind. Gov't. - Are text messages subject to the Public Records Act?

In a 3-page opinion dated Nov. 23, 2016, Luke Britt, the Indiana Public Access Counselor, addresses an informal inquiry posed by the City of South Bend Legal Department. Some quotes:

You seek a determination as to whether text messages sent by public employees are subject to the APRA and any accompanying retention considerations. You ask whether there is a distinction between messages sent by city-owned phones versus personal cell phones and whether they are both public business messages and personal messages which should be retained. * * *

[T]he very definition of public record leaves no doubt text messages are indeed public business records * * *

The Indiana Archives and Records Administration (IARA) has confirmed there is no specific retention schedule published by the Oversight Committee on Public Records, however, text messages could ostensibly fall into the “general files” category, which carries with it a three-year retention cycle. General files are defined as “Office records that are not related to policy implementation. This series includes correspondence, memos, and routine staff files”. In any case, text messages are not statutorily excepted from disclosure.

Complicating the issue is there is no question many public employees at the state and local level use both government issued and personal cell phones to compose text messages. When a public official is conducting public business, he is acting on behalf of the public agency as an agent of that entity, even if he does so on a personal device on personal time. It is the content of the message which is the critical element. * * *

In my opinion, content is key in determining whether to retain text messages. While most are likely fleeting and transitory, they can certainly document conversations relating to substantive policy and business.

“Transitory” does not have a definition in Indiana Code, however, it is known generally as personal records, unsolicited advertising or spam, carbon copies from mass emails such as a listserv, and duplicative non-records used for reference or research. * * *

The practical problem with retention is that there is often no central server where text messages are stored. Governmental units provide smartphones to their employees through outsourced providers or employees use personal devices. Unlike emails, local government servers do not capture the messages. While they are most likely akin to instant messages and mostly a substitute for brief face-to-face conversations, they are documented records of actions of public employees. The practice of retaining those messages would likely be costly and time-consuming; therefore, my recommendation is each agency develop and implement a policy so that employees do not potentially run afoul of APRA considerations.

Best practice would dictate each employee keep track of his or her own substantive public business messages and retain them on their own respective devices – personal or government issued. This shows good faith and stewardship of government-related information. As for requests for text messages, I would suggest the standard of reasonable particularity for emails be maintained as well: a named sender, a named recipient, a finite subject matter and a six-month-or-less timeframe. Recognizing search capabilities for text messages would be tedious and less robust than an email query, the more specificity the better when it comes to requests.

Posted by Marcia Oddi on Monday, December 05, 2016
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides one Indiana case today; student athletes are not employees

In Gillian Berger v. NCAA (SD Ind., Lawrence), a 13-page opinion with a concurring opinion, Judge Kanne writes:

Former student athletes at the University of Pennsylvania (“Penn”) sued Penn, the National Collegiate Athletic Association (“NCAA”), and more than 120 other NCAA Division I universities and colleges alleging that student athletes are employees who are entitled to a minimum wage under the Fair Labor Standards Act (“FLSA”). The district court disagreed. We agree with the district court and hold that student athletes are not employees and are not covered by the FLSA. * * *

HAMILTON, Circuit Judge, concurring. I join Judge Kanne’s opinion for the court but wish to add a note of caution. The plaintiffs in this case were students who participated in track and field at the University of Pennsylvania. Like other Ivy League schools, Penn does not offer athletic scholarships. Also, as far as I know, track and field is not a “revenue” sport at Penn or any other school. * * *

I am less confident, however, that our reasoning should extend to students who receive athletic scholarships to participate in so-called revenue sports like Division I men’s basketball and FBS football. In those sports, economic reality and the tradition of amateurism may not point in the same direction. Those sports involve billions of dollars of revenue for colleges and universities. Athletic scholarships are limited to the cost of attending school. With economic reality as our guide, as I believe it should be, there may be room for further debate, perhaps with a developed factual record rather than bare pleadings, for cases addressing employment status for a variety of purposes.

Posted by Marcia Oddi on Monday, December 05, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Andre Anderson v. State of Indiana , a 9-page opinion, Judge May writes:

Andre Anderson appeals the admission at trial of a handgun found pursuant to a search of his car following his arrest. We reverse. * * *

[Search Incident to Lawful Arrest] As the U.S. Supreme Court has not spoken on this issue since Gant, we are constrained to hold in accordance therewith that the search of Anderson’s jacket incident to his arrest was unconstitutional because the police unlawfully entered the passenger compartment of Anderson’s car to access the jacket. See Gant, 556 U.S. at 335. * * *

[Inventory Search] While the police department has a procedure in place to tow vehicles, nothing produced at trial demonstrates Officer Heiny followed that procedure. This search, therefore, does not fall within the inventory search exception because Officer Heiny did not follow procedures set out by the Indianapolis Metropolitan Police Policy. See Friend v. State, 858 N.E.2d 646, 652 (Ind. Ct. App. 2006) (to comply with reasonableness standards, an inventory search must comply with “standard police procedures”).

[Conclusion] The search of Anderson’s jacket was not lawful as a search incident to arrest or an inventory search; thus, the trial court abused its discretion when it admitted the handgun into evidence. Accordingly, we reverse Anderson’s conviction of Level 5 felony carrying a handgun without a license with a prior conviction. Reversed.

NFP civil decisions today (1):

In the Matter of: K.S. (Minor Child), and C.S. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (3):

Jerry D. Thompson v. State of Indiana (mem. dec.)

Brian J. Christlieb v. State of Indiana (mem. dec.)

Jason Eugene Shaw v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, December 05, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending December 2, 2016

Here is the Clerk's transfer list for the week ending Friday, April 15, 2016. It is two pages (and 26 cases) long.

Two transfers were granted last week:

In addition:

Posted by Marcia Oddi on Monday, December 05, 2016
Posted to Indiana Transfer Lists

Ind. Gov't. - "How the Pokagon Band went from a small tribe to a business powerhouse" [Updated]

Updating a long list of earlier ILB posts* referencing the Pokagon Band of Potawatomi Indians, the South Bend Tribune had two stories this weekend by Kevin Allen:

*ILB: Interestingly, a review of the earlier posts reveals this one from May 6, 2004, headed "Donald Trump, Indian Gaming, and Indiana Tie-ins."

[Updated] A new, long story this morning by the SBT's reporter Allen, headed "Pokagon plan ups pressure on casinos: The tribe's South Bend site may challenge existing gaming operations." It begins:

The Pokagon Band of Potawatomi Indians’ entrance into the casino business and its expansions in that industry have all been in Michigan — a state where tribes own more than 20 casinos.

But the Pokagons’ next step in expanding its gaming operations is in Indiana — which doesn’t have any tribe-owned casinos but relies on state-regulated casinos as a significant source of tax revenue.

The Pokagons’ plan to build a large casino as part of a tribal village with housing and health facilities on South Bend’s southwest side will remake that corner of the city. It also could have wide-ranging impacts on other casinos in Indiana.

Posted by Marcia Oddi on Monday, December 05, 2016
Posted to Indiana Government

Ind. Courts - Elimination of Hammond City Court would not be a radical idea

Supplementing this ILB post from Dec. 2nd, both the NWI Times and the Gary Post Tribune have stories this morning on the Hammond City Court.

"Hammond mayor seeks end to City Court " heads Ed Bierschenk's long story in the NWI Times. Some quotes:

HAMMOND — Mayor Thomas M. McDermott Jr. wants to see the City Court slowly put out of business over the next few years, which he contends will save Hammond as much as $1.5 million a year.

McDermott's plan involves having city police begin to file cases with the county courts next month and by Jan. 1, 2018, have all new city cases handled by the county rather than the city. An ordinance putting that plan into effect is being sponsored by Councilman Dave Woerpel, D-5th, and will be discussed at the City Council meetings in December, with a final vote scheduled for January.

McDermott estimated that probably about 50 percent of the court's business comes from tickets written by Hammond police.

He said there is probably a 75 percent chance that some criminal defendants may have to go to Crown Point rather than to the Hammond branch of the Lake Superior Court on Russell Street to have their cases heard. He said he has spoken to the county court about trying to have the civil cases and infractions, such as jaywalking and speeding, heard at the Hammond courthouse.

By July 2017, he wants all city ordinance violations handled through some type of ordinance, or code, court headed up by an attorney, which he said may only require one additional staff member.

Craig Lyons and Michelle L. Quinn have a story in the Gary Post-Tribune. A sample:
McDermott admitted he dropped the announcement suddenly on his weekly radio show and tempered his remarks afterward, calling the move "good government" modeled after one of his idols, former Indiana Gov. Joseph Kernan.

"This is not a political move; the court has been a luxury," McDermott said. "Is the timing suspicious with Gov. Pence appointing a St. John resident with no experience to the court? Yes. But if the council passes this, it's one of the things listed in the Kernan-Shepard report (from the Indiana Commission of Local Government Reform). This is a good government move and will save the city $1.5 million per year." * * *

Since the 2017 budget already allots for all court and clerk positions, any phasing out would start in earnest in 2018, McDermott said. As that happens, the city will do its best to place court and clerk employees facing job elimination — specifically, those who are Hammond residents, McDermott said in his segment — in other city positions as they come open.

As for Jorgensen, she would continue to receive her salary through Dec. 1, 2019, regardless of whether there are court cases, the mayor said.

"There will be no election in 2019 because there will no longer be a court," McDermott said. "This isn't a decision to eliminate the court for three years and then bring it back. Amy will be the last City Court judge in the city's history."

ILB: The abolition of city and town courts has long been an objective of the Indiana courts. The publication, "A New Way Forward," is the Indiana Judicial Conference's strategic plan to reform the courts, and includes abolishing city courts. The ILB has several posts on this, including this one from Nov. 5, 2010.

IC 33-35 deals with City and Town Courts. IC 33-35-1-1 deals with their establishment and abolition.

Posted by Marcia Oddi on Monday, December 05, 2016
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

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

Thursday, December 8

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

Thursday, December 15

Webcasts of Supreme Court oral arguments are available here.




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

Tuesday, December 6 Wednesday, December 7 Next week's oral arguments before the Court of Appeals (week of 12/12/16):

Thursday, December 15

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, December 05, 2016
Posted to Upcoming Oral Arguments

Friday, December 02, 2016

Ind. Courts - "Workplace Bias Against Gays Could Be Illegal, 7th Cir. Judges Hint"

A long, excellent story by Michael J. Bologna of Bloomberg BNA, about the en banc oral argument November 30th in Kimberly Hively v. Ivy Tech Community College, begins:

Discrimination based on sexual orientation might be prohibited by federal law, several Seventh Circuit judges suggested, raising hopes among gay rights advocates that the court is poised to fill a gap in the nation’s anti-bias laws.

Six of the 11 judges of the U.S. Court of Appeals for the Seventh Circuit questioned an Indiana employer’s assertion that Title VII of the 1964 Civil Rights Act offers no protection to a lesbian employee who said she was discriminated against because of her sexual orientation.

The judges, hearing oral arguments Nov. 30, expressed frustration with the employer’s strict interpretation of the plain language of the statute.

A critical question before the court is whether Title VII’s prohibition against discrimination on the basis of sex includes discrimination based on sexual orientation.

Title VII says nothing about protections for individuals based on sexual orientation, and Congress has declined to add sexual orientation as a protected class under the statute, John Maley, the attorney for the employer, Ivy Tech Community College, told the court.

But the panel peppered Maley with questions and viewpoints asserting a more expansive understanding of sex in the context of employment discrimination. The judges also pointed to the court’s authority to broaden the statute to adapt to changing social conditions.

“Constantly, judges are reinterpreting statutes in ways that are not consistent with the actual thinking of the people who enacted the statute,” Judge Richard Posner said. “Why isn’t this a perfect case for that?”

Posted by Marcia Oddi on Friday, December 02, 2016
Posted to Ind. (7th Cir.) Decisions

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

Updating this ILB post from Nov. 23rd, which quoted reports that Hammond Mayor Tom McDermott Jr. was unhappy with Gov. Pence's appointment to fill the Hammond City Court judge vacancy, the NWI Gazette has a post today from Ken Davidson that begins:

In his weekly radio show [today, Dec. 2], Hammond Mayor Thomas McDermott, Jr. announced that he has asked the Hammond City Council to begin “systematically and slowly closing down our city court over time.” McDermott stated that closing down the Court would be a three step process that would take up to three years. The first step would be accomplished as soon as January 1, 2017 according to the Mayor. “I will order the Hammond Police Department to stop filing all criminal cases in Hammond City Court effective January 1, 2017” Mayor McDermott announced. Attorney Kevin Smith explained that Hammond City Courts hear primarily three types of cases “the city and town courts around Lake County hear usually ordinance violations, which are like if you don’t cut your grass, don’t have your dog tags, then they have infractions which are like your speeding tickets, traffic tickets, and then they hear criminal misdemeanor cases which carry up to one year in jail that is like theft, DUI . . . ” McDermott explained that Hammond residents who are charged with a crime “may be inconvenienced.” “If you are charged with a crime, you may have to go to Crown Point. I don’t care, don’t get charged with a crime” the Mayor stated.

In 2019 we are predicting that all cases will be out of Hammond City Court by that time and Judge Jurgensen will get paid for nothing. McDermott stated that he hoped all Court and Clerk employees who live in Hammond and may be displaced by the plan would be absorbed into other City jobs.

The Mayor stated that the plan has been in the works for 8 years. “The court continuously loses money” the Mayor stated. “Clerk Golec and I have been talking about this and he has already downsized his staff” the Mayor explained.

Some of the cases, particularly ordinance violations and civil cases, could be absorbed by the Lake Superior Court in Hammond. The Lake Superior Court is located at 232 Russell Street, just steps from the proposed new City Hall and the Hammond Police Station. One area of concern that was not mentioned by the Mayor or Kevin Smith is evictions. The Hammond City Court handles a large number of eviction cases for Hammond residents as well as for tenants in neighboring communities. Many of those cases will now be pushed off to Lake Superior Court in Hammond or Crown Point.

Posted by Marcia Oddi on Friday, December 02, 2016
Posted to Indiana Courts | Indiana Government

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

In USA v. Juan Briseno (ND Ind., Simon). a 17-page opinion, Judge Williams writes:

Juan Briseno was convicted of multiple racketeering crimes relating to his participation in a street gang. On appeal he seeks a new trial, arguing that dur ing closing arguments, the government improperly referenced evidence pertaining to a prior acquittal, impermissibly shifted the burden of proof to him, and vouched for gov ernment witnesses in an inappropriate fashion.  

But Briseno failed to object at trial to any of these state‐ ments, and none was so egregious that the trial judge should have intervened. Although earlier in the trial the govern ment highlighted evidence relating to an attempted murder for which Briseno had been acquitted, that evidence was also relevant to several other distinct charges that were submit ted to the jury. And while the government did erroneously shift the burden of proof by suggesting that Briseno could be acquitted only if the jury concluded that the government’s witnesses had testified falsely, that error was made harmless by multiple curative instructions from the judge and by the significant evidence weighing in the government’s favor. Fi nally, the statements that Briseno argues constitute improper vouching are better viewed as permissible appeals to the ju rors’ common sense.

In addition, Briseno complains that the jury instruction on the RICO conspiracy charge was internally inconsistent and confusing, since it required the government to prove an agreement as to the commission of “at least two acts of rack eteering” but not “two or more specific acts.” We find no er ror in this instruction, as it mirrors our pattern jury instruc tion on the topic and comports with our case law. So we af‐ firm Briseno’s conviction. * * *

In addition, Briseno has failed to demonstrate cumulative error, since he has failed to identify any error that individu ally or in combination with others deprived him of a fair tri al. See United States v. Powell, 652 F.3d 702, 706 (7th Cir. 2011) (Cumulative error requires proof “(1) that multiple errors occurred at trial; and (2) those errors, in the context of the entire trial, were so severe as to have rendered his trial fun‐ damentally unfair.”); Alvarez v. Boyd, 225 F.3d 820, 825 (7th Cir. 2000) (“[C]ourts must be careful not to magnify the sig nificance of errors which had little importance in the trial setting.”). So Briseno has failed to show that he is entitled to a new trial.

Posted by Marcia Oddi on Friday, December 02, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Rare written dissent filed in transfer denial of termination of parental rights case involving ADA

The Court of Appeals decided In the Termination of the Parent-Child Relationship of N.C. (Minor Child) and A.C. (Father) v. The Indiana Department of Child Services on June 21, 2016. Here is the ILB summary. The opinion concluded:

... Father waived the issue of whether the ADA applies in a termination of parental rights proceeding. Waiver notwithstanding, Father’s discrimination claim cannot serve as a basis to attack the trial court’s termination order.
Last yesterday afternoon the Supreme Court filed an order in In the Termination of the Parent-Child Relationship of N.C. and A.C. v. IDCS, which it has just posted, stating that the Court denies a petition for transfer. The vote was 3-2. The order includes a rare, 3-page written dissent from denial of transfer:
Rush, C.J., and Massa and Slaughter, JJ., concur.
David, J., dissents with separate opinion in which Rucker, J., concurs.

I respectfully dissent from the denial of transfer in this case as I believe this Court should grant transfer and address the Americans with Disabilities Act (ADA) issue to provide further guidance and to expressly overrule part of the holding in Stone v. Daviess Cnty. Div. of Children and Family Srvs., 656 N.E.2d 824 (Ind. Ct. App. 1995). * * *

I would grant transfer and hold that a disabled parent may use non-compliance with the ADA as a defense to the termination of his or
her parental rights where DCS has provided discretionary services, but failed to provide reasonable accommodations to a disabled parent.

Posted by Marcia Oddi on Friday, December 02, 2016
Posted to Ind. App.Ct. Decisions | Indiana Transfer Lists

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

For publication opinions today (1):

In First American Title Insurance v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, in his official capacity, on behalf of the Indiana Department of Insurance, a 17-page opinion, Judge Barnes writes:

First American Title Insurance Company (“FATIC”) appeals the trial court’s dismissal of its complaint against Stephen Robertson, Insurance Commissioner of the State of Indiana (“Commissioner”), in his official capacity, on behalf of the Indiana Department of Insurance (“IDOI”). We affirm.

FATIC raises two issues, which we consolidate and restate as whether the trial court properly dismissed FATIC’s Writ of Prohibition and Action for Mandate, Request for Declaratory Relief, and Verified Amended Petition for Judicial Review against IDOI. * * *

There is no claim here that IDOI lacks jurisdiction or general authority to investigate claims like those presented here. Rather, the issue is whether the Commissioner’s order was timely. As in Johnson, this type of fact-sensitive issue should be resolved in the first instance by the administrative agency, not through a declaratory judgment action or action for prohibition and mandate. Further, we note that neither Twin Eagle nor Johnson addressed the specific issue presented here—whether res judicata prevented FATIC from filing a declaratory judgment action and action for prohibition and mandate after having received an unfavorable result through the first appeal process. FATIC had an administrative remedy here and was required to pursue that remedy. Outboard Boating Club of Evansville, Inc. v. Indiana State Dep’t of Health, 952 N.E.2d 340, 343 (Ind. Ct. App. 2011) (“[W]here an administrative remedy is available, filing a declaratory judgment action is not a suitable alternative.”). Although its remedy failed due to its failure to file the complete agency record, res judicata prevents FATIC from taking a second bite at the apple by filing the instant action. We conclude that the trial court properly granted IDOI’s motion to dismiss.

NFP civil decisions today (1):

In the Termination of the Parent-Child Relationship of: I.C. and Z.S., minor children, and C.S., Mother v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (4):

Beth Montgomery v. State of Indiana (mem. dec.)

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

Stephani Merrell v. State of Indiana (mem. dec.)

Gary Chavez v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, December 02, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - ND Ind. rules on application of sex offender ordinance in Hartford City

In Valenti v. Hartford City Indiana, a 32-page ND Ind. opinion by Judge Springmann, the issue is a Hartford City sex offender ordinance. From the opinion:

The Plaintiff moved to Hartford City in 2014 with his wife and minor child. In 1993, the Plaintiff was convicted in California of a sex offense involving a child under the age of 14, and is therefore required to register as a sex offender under Indiana law. Shortly after he moved to Hartford City, a member of the police department informed the Plaintiff about the Ordinance.

The Plaintiff alleges that the Ordinance has caused him to significantly curtail his activities in Hartford City, including going to the library with his child, entering his child’s school, going to Hartford City parks, bowling with his family, attending church where there are separate youth services, joining the YMCA, having his child participate in YMCA activities, and voting at his designated polling place. The Plaintiff maintains that when he lived in California, he would frequently go to his child’s school to work with staff there because his child has learning disabilities, but that he is now unable to do so and his child has suffered because of this. Referring to the original definition, the Plaintiff asserts that he does not know what loiter means, nor does he know all the locations where it would be impermissible for him to loiter. He alleges that the restriction is burdensome, as he cannot wait in the parking lot of places where his child may go bowling or participate in or attend sporting events. In fact, the Plaintiff received a citation from the Hartford Police Department when he was a passenger in his brother’s car, which was parked at his brother’s house across the street from a school. He was waiting to be taken to pick up his own child from another school.

The Plaintiff asserts that the revised definition of loiter remains unclear and causes him uncertainty. He questions whether driving by a park three or four times in the course of running errands would be considered “circulating around a place.” He also complains that the definition does not depend on what he is doing, but on how others might perceive it. * * *

Having weighed the punitive and non-punitive nature of the seven factors as they apply to the Plaintiff and his circumstances, the Court finds that the effects of the Ordinance “are so punitive in nature as to constitute a criminal penalty.” Gonzalez, 980 N.E.2d at 317 (citing Wallace, 905 N.E.2d at 378). The Ordinance imposes substantial affirmative restraints that are historically considered punishment and triggered by a past criminal conviction, and does so in a manner that is excessive in relation to the Ordinance’s stated purpose. It violates the Indiana Constitution’s prohibition on ex post facto laws because it imposes burdens that have the effect of inflicting greater punishment on the Plaintiff than what could have been imposed in 1988 when he committed the crime. The Plaintiff is entitled to a judgment that applying the Ordinance to him violates Indiana’s ex post facto laws. * * *

In his Motion for Partial Summary Judgment, the Plaintiff requests that the Court “[p]ermanently enjoin Ordinance 2008-01.” (Mot. 2, ECF No. 34.) The specifics of that request are not clear. If the Plaintiff is asking that the Defendant be enjoined from enforcing the Ordinance against him because it would be an ex post facto punishment, the Court agrees. If the Plaintiff is asking that the Ordinance be permanently enjoined as to all individuals or all class members, the Court does not find a basis for that request. It is only the inclusion of the loitering prohibition that creates a due process violation. The remainder of the Ordinance has not been challenged, and remains intact and enforceable. Thus, to the extent the Plaintiff seeks to permanently enjoin all enforcement of the Ordinance against the class members, that request is denied.

For the reasons stated above, the Court GRANTS IN PART AND DENIES IN PART the Plaintiff’s Motion for Partial Summary Judgment [ECF No. 34], and DENIES the Defendant’s Cross-Motion for Summary Judgment [ECF No. 37]. Because Hartford City Ordinance 2008-01 violates Indiana Constitution Art. 1, § 24, as applied to the Plaintiff, the Defendant is enjoined from enforcing it against the Plaintiff. The Pre-Amendment Ordinance definition of loiter violated due process. By separate order, the Court will set a telephone status conference to set a trial to determine the Plaintiff’s individual damages. The amended definition of loiter also violates the Fourteenth Amendment, and the Defendant is enjoined from imposing fines for any violation of the loitering prohibition contained in Ordinance 2008-1.

The Court will enter a final judgment outlining the appropriate relief after resolution of the entire case.

Posted by Marcia Oddi on Friday, December 02, 2016
Posted to Ind Fed D.Ct. Decisions

Courts - "New court software is so awful it’s getting people wrongly arrested: Problematic Odyssey Case Manager software package is used nationwide"

That is the headline to a story today by Cyrus Farivar of ArsTechnica. The lengthy story begins:

OAKLAND, Calif.—Most pieces of software don’t have the power to get someone arrested—but Tyler Technologies’ Odyssey Case Manager does. This is the case management software that runs on the computers of hundreds and perhaps even thousands of court clerks and judges in county courthouses across the US. (Federal courts use an entirely different system.)

Typically, when a judge makes a ruling—for example, issuing or rescinding a warrant—those words said by a judge in court are entered into Odyssey. That information is then relied upon by law enforcement officers to coordinate arrests and releases and to issue court summons. (Most other courts, even if they don’t use Odyssey, use a similar software system from another vendor.)

But, just across the bay from San Francisco, Alameda County's deputy public defender, Jeff Chorney, says that since the county switched from a decades-old computer system to Odyssey in August, dozens of defendants have been wrongly arrested or jailed. Others have even been forced to register as sex offenders unnecessarily. “I understand that with every piece of technology, bugs have to be worked out,” he said, practically exasperated. “But we're not talking about whether people are getting their paychecks on time. We're talking about people being locked in cages, that's what jail is. It's taking a person and locking them in a cage.”

Odyssey is used not only in Alameda County and additionally in 25 of California’s 58 county courts, but also in counties nationwide, from Miami-Dade County, Florida, to Kane County, Illinois. Lawyers in at least three counties in as many states have reported problems nearly identical to Alameda's and have begun formal legal proceedings as a result. Earlier this month, an activist group in Shelby County, Tennessee, alleged similar issues in a recently filed federal civil rights lawsuit. According to the Memphis Daily News, Shelby County Commissioners discussed on Wednesday possible legal action against Tyler Technologies.

Due to the same glitches, inmates in Marion County, Indiana, sued the county sheriff nearly two years ago in federal court over a related issue—that case is still ongoing.

ILB: But there is no mention of a software issue in the Marion County, Indiana complaint, only of a two-day delay in a jail release in December, 2014.

Were the Marion County criminal courts even using Odyssey in 2014? This ILB post from June 17, 2014, is headed "Marion County joins Odyssey Case Management System for criminal cases."

Posted by Marcia Oddi on Friday, December 02, 2016
Posted to Courts in general | Indiana Courts

Thursday, December 01, 2016

Ind. Gov't. - "Protest of privatized, politicized pavilion draws 200 to hearing on alcohol in Dunes State Park"

Kevin Nevers' lengthy story in the Chesterton Tribune Wed. began:

Upwards of 200 people appeared at a public hearing on Tuesday to express, in the strongest possible terms, their opposition to alcohol service at a remodeled Pavilion and proposed banquet center at Indiana Dunes State Park.

Over the course of the three-hour hearing 39 actually spoke, every one of them against alcohol service.

The hearing, held at Woodland Park in Portage, was convened by the Indiana Natural Resources Commission (NRC) specifically in connection with a proposed rule change in the Indiana Administrative Code (IAC). That change, as NRC representative Sandra Jensen explained it, would bring the rule currently governing alcohol service at Dunes State Park into compliance with the legislation enacted earlier this year which, on the one hand, authorizes the Department of Natural Resources (DNR) to apply to the Indiana Alcohol and Tobacco Commission (IATC) for three-way permits on behalf of its state parks; and, on the other, requires IATC to grant such permits.

Yet, as Jensen suggested bluntly--after six folks had already remonstrated--the very narrowness of the NRC’s interest in the matter rendered many, if not most, of people’s comments irrelevant to the issue.

Because, Jensen said, the current IAC rule already permits alcohol service “on the licensed premises of a pavilion” at Dunes State Park, pursuant to earlier legislation enacted in 2015. The proposed rule change, accordingly, would simply reflect the new statute, under which not Pavilion Partners LLC would be the three-way licensee but the DNR itself.

“We’re not here to talk about the permit but about the rule proposal,” Jensen said. So “what do we about” the new statute? someone asked from the audience. “I can’t answer that question,” Jensen replied. “It’s beyond me.”

So “what are we commenting on? What are the parameters of the meeting?” someone else asked. “I can’t offer anything with regard to that,” Jensen responded. “I understand and empathize. But I have absolutely nothing to offer in that respect.”

The upshot, however, as Jensen continued, is that the history of alcohol consumption at Dunes State Park, the potential dangers of alcohol near or on the beach, the events which prompted the enactment of the new legislation and the process by which it was enacted, and the politics and business ventures of Pavilion Partners principal Chuck Williams simply aren’t relevant to the decision to be made by the NRC: whether or not to adopt the proposed rule change.

"Hearing on alcohol in park turns contentious" is the heading to Joyce Russell's story in the NWI Times. A sample:
Not only did the residents speak loud and clear about what a mistake they believed it would be to allow alcohol at the park, the hearing officers also got an earful from residents alleging improprieties between developers Pavilion Partners and state legislators.

"Pavilion Partners went down to Indianapolis and got this omnibus piece of crap," said Paul Mache, of Chesterton, referring to legislation passed this year allowing the Department of Natural Resources to apply for liquor licenses for nine state parks, including Indiana Dunes. The DNR applied for and received alcohol permits in August.

Residents pointed out that twice the local alcohol commission denied the partners, who are remodeling the pavilion and hope to construct a beachside banquet center with a liquor permit. When that decision was upheld at the state level, Julie Rosler, of Union Mills, said "a powerful local Republican" went to Indianapolis and used his influence to get the legislation passed.

"Everything about this project has been done behind the curtain," said Duane Davidson, adding residents have been fighting the proposed changes at the state park for 18 months, but seem not to be heard.

And in the Gary Post-Tribune, Amy Lavalley has a long story (here via the Ind.Econ.Digest) headed "Residents frustrated about alcohol at Indiana Dunes State Park pavilion." A quote:
Both the plans for serving liquor at the pavilion and the banquet center have generated a wide swath of opposition from the grassroots group Dunes Action and others since the plans became public more than a year and a half ago.

The change in state law, which allowed the DNR to apply for liquor permits to the Indiana Alcohol and Tobacco Commission for its state parks without public comment, came after both the county and state liquor boards denied a permit for Pavilion Partners' plans at the pavilion.

"You are privatizing profit to Pavilion Partners and socializing risk to Indiana taxpayers," said Julia Roesler of Union Mills, adding that under the terms of the lease, "if Pavilion Partners can't sell alcohol, taxpayers have to pay them back for what they invested."

The process that handed a liquor license to the state park took away local control, said State Rep. Chuck Moseley, D-Portage, adding that even if he filed a bill "to make this go away," the bill would die because of the Republican supermajority in the legislature.

ILB: The ILB has many earlier posts on this topic.

Posted by Marcia Oddi on Thursday, December 01, 2016
Posted to Indiana Government

Courts - Many in limbo because a federal district judge in Texas ruled last week to halt an overtime rule that was supposed to take effect Dec. 1

The ILB had a post last Friday quoting a NYT story headed "Overtime Rule Is but the Latest Obama Initiative to End in Texas Court."

The ILB has seen little about the blocking of the overtime rule, and was pleased to see a long story yesterday by Suzanne Spencer, WSBT, headed "Delayed overtime rule puts 188,000 Michiana workers, businesses on hold." Some quotes from the good story:

Welch Packaging is one of dozens of companies around Indiana and Michigan attempting to navigate its way through a proposed overtime rule.

The rule would have impacted those who make less than $47,476, who are salaried and work more than 40 hours per week.

It also called for an “automatic update” every three years to ensure the wage level was consistent with Department of Labor standards.

A federal judge in Texas issued an injunction, halting the rule, 10 days before the rule was set to take effect.

“It’s something that as a leadership team, we spent time talking about,” said Welch Packaging Director of Human Resources Matt Davis. “There was a cost to it already in just the planning and administrative preparation that went into it.”

Davis said the rule would have impacted 1-2% of their workforce, mostly mid-level managers. While the company did not go as far as making financial changes, they were in the planning stage of staggering shifts to keep a closer-eye on employees to ensure 40-hour work weeks.

“We’ve taken a ‘wait and see’ approach where we’re planning for the change to take effect, but not making any drastic changes in case something like the injunction were to happen,” said Davis.

Other companies did make changes.

“Most employers I’ve talked to are going forward with it,” said St. Joseph County Chamber of Commerce President Jeff Rea. “The court decision hasn’t necessarily affected them one way or another because they’ve already had those conversations with employees.”

Going “backwards,” Rea said, may put a strain on the relationship between employer and employee; particularly, he said, as managers may keep a closer-eye over employees work habits, schedule, or flexibility.

The LA Times has a Q&A story today headed "A judge blocked Obama's expansion of overtime pay. What that means, and what comes next." A snippet:
Businesses nationwide had spent the last several months preparing for the new rule. But the judge’s decision has left them and their employees in limbo. The Labor Department said it’s reviewing its legal options.

(Hourly paid employees generally are eligible for overtime pay regardless of how much they earn per year.)

What happens next? We asked Jared Ashworth, assistant professor of economics at Pepperdine University, to explain.

And from Jonnelle Marte in today's Washington Post, a story headed "Millions of workers in limbo after rule expanding overtime pay eligibility is put on hold." A few quotes:
The Labor Department rule, which would have made overtime pay available to more than 4 million additional workers, was challenged in court by a number of business groups and a collection of states [ILB: 21 states, including the State of Indiana]. The judge ruled that the department exceeded its authority when it more than doubled the salary limit that determines which workers should be made eligible for overtime pay. * * *

The rule would have made overtime pay an option for full-time salaried employees earning up to $47,476 a year — substantially more than the current threshold of $23,660 a year. The rule hadn’t been updated in 12 years.

But business groups, states and other employers expressed concerns that the higher income threshold would hurt their bottom lines, disrupt their business models, or limit opportunities for employees. * * *

The Labor Department said it strongly disagreed with the court’s decision and is currently reviewing its legal options.

The timeline for when the court will reach a final decision depends on what the department does next, legal experts say. If the Labor Department challenges the injunction as expected, some consumer groups said they are worried that the rule advocated by President Obama may not survive under the next administration. One scenario is that the Labor Department under President-elect Donald Trump could decide to drop the case, putting an end to the rule, says Ross Eisenbrey, vice president for the Economic Policy Institute, a left-leaning think tank.

As a result, Eisenbrey said, the institute is researching options for becoming a party in the lawsuit so that it could continue the case even if the Labor Department drops out. “That shouldn’t be the end of the matter,” he said.

The last-minute delay of the rule, which was halted less than two weeks before it was supposed to go into effect, created confusion for some employers that have spent the past several months preparing for the regulation. Some companies offered raises to managers so that their salaries would be above the proposed threshold. Other workers were set to become eligible to be paid time-and-a-half on any time worked beyond 40 hours a week.

Posted by Marcia Oddi on Thursday, December 01, 2016
Posted to Courts in general

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

For publication opinions today (1):

In Corey Middleton v. State of Indiana , a 16-page opinion (including a separate "concur in result with opinion"), Judge Altice writes:

Corey Middleton appeals from the denial of his petition for post-conviction relief. He asserts that the post-conviction court erred in rejecting his claim of ineffective assistance of trial counsel. * * *

As noted previously, there was overwhelming evidence to support his convictions. Judgment affirmed.

Bradford, J., concurs.
Pyle, J., concurs in result with opinion. [that begins, on p. 14]

I concur with my colleagues holding, but I write separately because I believe Middleton’s counsel’s performance fell below current objective professional norms and also prejudiced Middleton. During voir dire, Middleton’s counsel properly explored the issue of race with prospective jurors. However, counsel referred to his absent client as a “Negro.” In a sterile environment, this word might not be any more offensive than the next. But, we do not live in a sterile environment. Words have power. Words convey explicit and implicit meanings they have acquired. While many dictionaries may still define the term “Negro” as “a person of black African origin or descent[,]” it is also cross referenced with the vile slur known euphemistically as “the N-word.” OXFORD ENGLISH DICTIONARY, http://www.oed.com (last visited November 21, 2016) [hereinafter OXFORD ENGLISH DICTIONARY]. * * *

Before evidence had even been introduced, potential jurors saw and heard Middleton’s attorney, the person who was supposed to be his advocate, refer to Middleton in a racially offensive manner. While there is no evidence that counsel intended harm to Middleton, the harm was nonetheless inflicted. Middleton was presented to potential jurors in a racially offensive manner. For these reasons, I believe counsel’s performance during voir dire was deficient and also prejudiced Middleton. Nonetheless, in order for us to reverse the trial courts denial of Middleton’s petition, we would have to believe that “but for counsel’s errors, the result of the proceeding would have been different.” Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010). In this case, the evidence against Middleton was considerable. As a result, I am not convinced that the result would have been different.

NFP civil decisions today (1):

Christopher Pete v. Ray Forrester (mem. dec.)

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on Thursday, December 01, 2016
Posted to Ind. App.Ct. Decisions

Ind. Law - "State Legislative Drafting Manuals and Statutory Interpretation"

That is the title to an interesting 65-page article in The Yale Law Journal, authored by Grace E. Hart. The abstract:

Although legislation has become a central feature of our legal system, relatively little is known about how statutes are drafted, particularly at the state level. This Note addresses this gap by surveying drafting manuals used by bill drafters in state legislatures. These manuals describe state legislatures’ bill drafting offices and outline conventions for statutory formatting, grammar, and style. These documents are valuable tools in statutory interpretation as information about drafting offices provides context for analyzing legislative history, and drafting conventions can illuminate statutory meaning. This Note offers normative justifications for using drafting manuals in statutory interpretation as well as principles to guide state courts in considering drafting manuals in their jurisprudence.
The ILB has referred to Indiana's Bill Drafting Manuals in various posts over the years. For example:

Posted by Marcia Oddi on Thursday, December 01, 2016
Posted to Indiana Law

Ind. Courts - 7th Circuit, sitting en banc, hears argument re whether "whether Title VII of the 1964 Civil Rights Act extends to sexual orientation"

Supplementing this ILB post from yesterday, Fatima Hussein of the Indianapolis Star reports in this morning's edition - some quotes:

The question for the 7th Circuit Court of Appeals [sitting en banc] in Chicago on Wednesday was whether Title VII of the 1964 Civil Rights Act extends to sexual orientation.

The court heard oral arguments from former Ivy Tech Community College adjunct professor Kimberly Hively's legal defense team from Lambda Legal, the Equal Employment Opportunity Commission and legal representatives from the college.

Hively, from South Bend, sued Ivy Tech in 2014, saying it passed her over for a permanent position and refused to renew her contract as an adjunct professor after school administrators learned she is a lesbian.

Ivy Tech has consistently denied that Hively was denied promotion because of her sexual orientation.

Wednesday morning, judges posed questions to both parties. Addressing Ivy Tech's defense attorney John Maley of Barnes & Thornburg, Chief Judge Diane Wood noted: "It is a little odd — you (Ivy Tech) said we deplore sexual orientation discrimination, but we're going to do it anyway." Maley rejected the notion.

One judge questioned Hively's lawyer: "Are we placing too much power in the judiciary to amend the word 'sex' to include sexual orientation when we know this was not the initial intent of Congress? Congress has no affinity for altering the definition of sex." * * *

The 11-judge panel on Wednesday repeatedly compared the case at hand to the landmark Supreme Court case 1967 case Loving v. Virginia, which invalidated laws prohibiting interracial marriage.

Posted by Marcia Oddi on Thursday, December 01, 2016
Posted to Ind. (7th Cir.) Decisions

Courts - "Trump's 21 potential court nominees are overwhelmingly white, male and from red states"

That is the headline and the lede to this long USA TODAY story this morning by Richard Wolf that contains brief looks at the potential nominees, including Diane Sykes of the 7th Circuit.

Posted by Marcia Oddi on Thursday, December 01, 2016
Posted to Courts in general