« December 2016 | Main | February 2017 »

Tuesday, January 31, 2017

Ind. Gov't. - Indiana native William Ruckelshaus' career is relevant to two national stories today

The Washington DC career of William Ruckelshaus, an Indianapolis native who practiced law in this city, served as Indiana House majority leader, and lost the U.S. Senate election to Birch Bayh in 1968, is relevant today for two reasons:

ILB: See a long list of other ILB posts on Mr. Ruckelshaus, including this one from Nov. 24, 2015, headed "William D. Ruckelshaus to receive Presidential Medal of Freedom today."

Posted by Marcia Oddi on Tuesday, January 31, 2017
Posted to Indiana Government

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

For publication opinions today (4):

In Russell F. Dumka v. Lori Erickson and Edward Jones , a 9-page opinion, Judge Crone writes:

Russell F. Dumka appeals from the trial court’s order denying garnishment of an individual retirement account inherited by Lori Erickson from her husband. Although he concedes that the asset is exempt from garnishment, he argues that the trial court erred by applying the statutory exemption because it was Lori’s burden to assert the exemption and she failed to do so. Concluding that the order complies with the evidence and the law, we affirm.
In Harrison County Sheriff's Department v. Leandra Ayers, Personal Representative of the Estate of Christine Britton, Deceased, a 9-page opinion, Judge Baker writes:
The Harrison County Sheriff’s Department (the Sheriff) appeals the trial court’s denial of its motion to correct error in which the Sheriff argued that it was entitled to judgment on the evidence. The trial court’s order came after a jury returned a verdict in favor of Leandra Ayers, representative of the Estate of Christine Britton (the Estate), for $1.2 million. The jury found the Sheriff vicariously liable under the doctrine of respondeat superior because Christine’s husband, Sheriff’s Deputy John Britton, knew that Christine had expressed suicidal thoughts but left her in a room by herself with his gun. The Sheriff argues that there is insufficient evidence, as a matter of law, that John was acting in the scope of his employment during the incident, and that the trial court made several errors in the admission of evidence and in its jury instructions. Finding that John’s actions were undertaken in a purely private capacity and had no connection to his employment as a sheriff’s deputy, we reverse and remand with instructions to grant the Sheriff’s motion to correct error. * * *

In short, because John’s actions took place in the most private and intimate of circumstances, during an argument between two spouses, while he was off duty, in an encounter to which the Sheriff had absolutely no connection, as a matter of law the Sheriff cannot be held vicariously liable for his crimes.

ILB: See this Jan. 9th post, "Is a law enforcement agency liable for off-duty officers?"

In Kenneth Brittain v. State of Indiana , an 18-page opinion, Judge Brown writes:

Kenneth Brittain appeals his convictions for murder and attempted murder as a class A felony. Brittain raises three issues which we revise and restate as: I. Whether the court’s admission of deposition testimony violated Brittain’s right of confrontation; II. Whether the court abused its discretion in admitting deposition testimony into evidence; and III. Whether the court erred by denying Brittain’s motion for a mistrial. We affirm.
In Devonte Owens v. State of Indiana , a 9-page opinion, Judge Baker writes:
Devonte Owens appeals his sentence for Carrying a Handgun Without a License, a Class A Misdemeanor, arguing that he was denied due process at his sentencing hearing. Finding that Owens did not receive due process, we reverse and remand for a new sentencing hearing. * * *

Owens argues that the trial court denied him due process during sentencing when it failed to advise him of his right to speak on his own behalf, failed to give him an opportunity to make a statement, and failed to allow his counsel to make a meaningful sentencing argument. We agree. * * *

We are dismayed by the trial court’s disregard for the statute that governs a defendant’s rights during sentencing. Our General Assembly clearly intended for a defendant to be advised of his right to speak at sentencing and to be able to speak if he wanted to do so; the statute mandates that, “before pronouncing sentence, the court shall ask the defendant whether the defendant wishes to make such a statement.” I.C. § 35-38-1-5 (emphasis added). Thus, a trial court must advise a defendant of this right and provide him with an opportunity to speak, if he so chooses. We understand that trial courts are busy, but to be so curt with defendants and their counsel, as the trial court was here, is penny wise and pound foolish—the denial of due process only leads us back to where defense counsel wanted us to be during sentencing, but at the expense of our taxpayers. See Ind. Judicial Conduct Rule 2.8(B) (“A judge shall be patient, dignified, and courteous to litigants . . . lawyers . . . and others with whom the judge deals in an official capacity . . .”). We take this opportunity to remind trial courts of their statutory duty to afford criminal defendants the rights that our General Assembly intended them to have during sentencing.

NFP civil decisions today (4):

In the Commitment of S.C. (mem. dec.)

Benjamin Odneal v. Circle Medical Management (mem. dec.)

William L. Scales v. Chester Levels (mem. dec.)

Melissa Freeman; Melissa Freeman Realty, Inc.; and Realty Group-Freeman, LLC d/b/a Prudential Indiana Realty Group v. Property-Owners Insurance Company (mem. dec.)

NFP criminal decisions today (7):

Chad T.B. Steiner v. State of Indiana (mem. dec.)

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

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

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

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

Christopher M. Konkle v. State of Indiana (mem. dec.)

Jarrad L. Mastin v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, January 31, 2017
Posted to Ind. App.Ct. Decisions

Ind. Courts - Whither the Indiana Tax Court?

On May 15, 2015, the Supreme Court created a 9-member Tax Court Task Force, with a reporting deadline of May 1, 2016.

On May 24, 2016, as detailed in this post, the ILB was able to post the report of the task force.

On June 27, 2016, the ILB posted a somewhat critical story from the Indiana Chamber Blog, headed "Tax Court Under Scrutiny."

Next, another committee. This July 7, 2016 ILB post is headed "Supreme Court creates a Tax Court Advisory Committee." The directive is:

... to work with, advise, assist, and assess progress by the Indiana Tax Court in implementing the reforms and improvements recommended by the Task Force, and to provide periodic written progress reports to this Court.
That is the most recent information the ILB has seen, there have been no public reports, etc.

However, two bills relating to the Indiana Tax Court have been introduced in the current session of the General Assembly.:

Background: On Sept. 14, 2014, the ILB had a lengthy post on the Tax Court backlog, headed "Ind. Courts - A look at the Indiana Tax Court." An update followed on Nov. 18, 2014.

Posted by Marcia Oddi on Tuesday, January 31, 2017
Posted to Ind. Tax Ct. Decisions

Ind. Courts - Still more on: Complaint filed against Johnson County prosecutor [Updated]

Updating this ILB post from Oct. 6th, Vic Ryckaert reports in the Indianapolis Star that a judge appointed to serve as hearing officer in a disciplinary proceeding against Cooper:

... has recommended a public reprimand for Johnson County Prosecutor Brad Cooper for criticizing another judge who set aside the death penalty against convicted murderer Michael Dean Overstreet.

Cooper made the statements to IndyStar and The Associated Press in 2014. * * *

Wayne Superior Court Judge Charles K. Todd last week recommended a reprimand for Cooper following the statements. In his ruling, Todd said the evidence showed Cooper is a "hard working, honest and ethical public servant," and noted that he has publicly apologized for the comments.

"It is difficult to imagine a case with much more by way of mitigation," Todd wrote.

The Indiana Supreme Court will make the final decision on Cooper's discipline.

Cooper's comments came in reaction to St. Joseph Superior Judge Jane Woodward Miller's ruling that Overstreet, the man convicted in the 1997 rape and murder of Kelly Eckart, was not competent to be executed.

Woodward Miller took over the case after Johnson Superior Judge Cynthia Emkes, who presided over Overstreet's trial, removed herself for health reasons.

ILB: Here is the docket in the Cooper disciplinary hearing. There is this entry:
1/24/2017 --- Hearing Officer's Findings
but no document link or summary is included, although the hearing officer report is public record, and has been made available in other high-profile disciplinary cases, such as that of Floyd Prosecutor Keith Henderson.

[Updated at 1:06 pm] The ILB has now obtained and is able to post the 17-page, Jan. 24, 2017 Hearing Officer's Report (h/t @VicRyc).

Posted by Marcia Oddi on Tuesday, January 31, 2017
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decided two additional Indiana cases yesterday

In John Casey v. Nancy A. Berryhill (ND Ind., Lozano), a 16-page opinion, Judge Hamilton writes:

In 2009, the Social Security Ad‐ ministration notified Plaintiff John Casey that he needed to repay about $334,000 in disability benefits he should not have received. Casey sought a waiver, but an administrative law judge denied his request. Six months later, Casey submitted an untimely request to the Appeals Council seeking review of the ALJ’s decision. Casey argued that he had good cause for his delay. The Appeals Council seemed to agree. On April 12, 2012, the Council extended Casey’s deadline to submit evi‐ dence or a statement in support of his waiver claim. But on July 17, 2013, the Appeals Council reversed course, informing Casey that it had dismissed his request for review because there was “no good cause to extend the time for filing.” Casey then sued the Acting Commissioner of Social Security in dis‐ trict court. The Commissioner moved to dismiss, and a mag‐ istrate judge recommended granting the Commissioner’s mo‐ tion. The district judge adopted the magistrate’s recommen‐ dation and dismissed the case.

The district court erred. The action by the Appeals Council in first granting and then retroactively denying Casey’s good cause request was arbitrary, having the effect of an unfair bu‐ reaucratic bait‐and‐switch. To be sure, the Council had discre‐ tion to determine initially whether Casey offered good cause for his late administrative appeal. See 20 C.F.R. §§ 404.968(b), 404.911. But having granted Casey’s request, the Council could not simply change its mind and dismiss Casey’s appeal on the theory that he had not adequately justified his delay, after leading him on for over a year without suggesting he needed to provide more information, an affidavit, or anything else by way of support. We reverse the judgment of the district court and remand with instructions to remand this matter to the agency for administrative proceedings consistent with this opinion.

In Estate of William A. Miller v. Helen Marberry (SD Ind., Magnus-Stinson), a 16-page, 2-1 opinion, Judge Easterbrook writes:
While confined at the federal prison in Terre Haute, Indiana, William Miller fell out of an upper bunk and broke his back. Contending that he should have been in a lower bunk, Miller seeks compensation in this Bivens action. Miller died in June 2016; the record does not show why. His estate has been substituted as the plaintiff, but we use his name to make the exposition easier to follow. * * *

Miller’s allegation ... is that Rogers and Marberry brushed off his complaints, leaving them to be handled through the chain of command. That brings Miller’s claim within the scope of Iqbal, Vance, and Burks rather than Haywood. AFFIRMED

[p. 8] POSNER, Circuit Judge, dissenting. In November 2006 Wil‐ liam Miller was convicted of bank robbery and sentenced to 120 months in prison. Between then and his imprisonment, which began thirteen months later in the Federal Correction‐ al Complex in Terre Haute, Indiana (“FCC Terre Haute” as the prison is more commonly known), he was diagnosed with a thalamic brain tumor (more commonly referred to in the medical profession as a thalamic glioma) that impaired the feeling in the left side of his body—a typical symptom of the disease.

A month after entering prison, Miller was given a “low‐ er‐bunk restriction”: his doctor ordered that he be assigned to a lower bunk because of his medical condition, and a no‐ tation to that effect was added (or should have been added) to his profile in the prison’s electronic record‐keeping sys‐ tem. A year later, for unknown reasons (but there is no indi‐ cation that the reasons were disciplinary), he was assigned to a more restrictive housing unit in the prison than he’d originally been in, called the Special Housing Unit. He was initially given a lower bunk, but within hours was moved to an upper one. He complained to Gary Rogers, the number one guard in the unit, that because of his brain tumor he had a lower‐bunk restriction, but Rogers told him he wouldn’t be switched to a lower bunk and if he refused the upper bunk he would “receive a disciplinary report for refusing a direct order.”

Yet just five days after this contretemps, climbing down the ladder from his upper bunk Miller became dizzy, slipped, and fell to the concrete floor, hitting his head and losing consciousness. * * *

Judge Easterbrook’s opinion cites Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009), for its rejection of a theory of “supervi‐ sory liability” that would make supervisors liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” * * *

I have no quarrel with that. But knowledge and duty can be entwined. “A prison official’s knowledge of prison condi‐ tions learned from an inmate’s communications can, under some circumstances, constitute sufficient knowledge of the conditions to require the officer to exercise his or her author‐ ity and to take the needed action to investigate and, if neces‐ sary, to rectify the offending condition.” Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996). Both Rogers and Marberry were responsible for the safety of prison inmates and were on no‐ tice that Miller’s safety was jeopardized as a consequence of confining him to an upper bunk. They were complicit in his suffering and may have hastened his death.

A dog would have deserved better treatment.

We should reverse.

Posted by Marcia Oddi on Tuesday, January 31, 2017
Posted to Ind. (7th Cir.) Decisions

Monday, January 30, 2017

Ind. Decisions - Transfer list for week ending January 27, 2017

Here is the Clerk's transfer list for the week ending Friday, January 27, 2017. It is one page (and 2 cases) long.

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

Posted by Marcia Oddi on Monday, January 30, 2017
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit decides one Indiana case today, reversing e-cigarette dismissal [Updated]

In Legato Vapors, LLC v. David Cook (SD Ind., Barker), a 22-page opinion, Judge Hamilton writes:

In 2015 the State of Indiana enacted the Vapor Pens and E-Liquid Act to regulate the manufacture and distribution of vapor pens and the liquids used in so-called e-cigarettes. 2015 Ind. Acts 1870, Ind. Code §§ 7.1-7- 1-1 et seq. The Act is written so as to have extraterritorial reach that is unprecedented, imposing detailed requirements of Indiana law on out-of-state manufacturing operations. The Act regulates the design and operation of out-of-state production facilities, including requirements for sinks, cleaning products, and even the details of contracts with outside security firms and the qualifications of those firms’ personnel. Imposing these Indiana laws on out-of-state manufacturers violates the dormant Commerce Clause of the United States Constitution.

The federal Constitution leaves Indiana ample authority to regulate in-state commerce in vapor pens, e-liquids, and ecigarettes to protect the health and safety of its residents. For example, the Act’s prohibitions on sales to minors, its requirements for child-proof packaging, ingredient labeling, and purity, and requirements for in-state production facilities pose no inherent constitutional problems. Indiana may not, however, try to achieve those health and safety goals by directly regulating out-of-state factories and commercial transactions. As applied to out-of-state manufacturers, the challenged provisions of the Act violate the dormant Commerce Clause prohibition against extraterritorial legislation.

We reverse the judgment of the district court dismissing this case and remand with instructions to enjoin enforcement of the challenged provisions against the plaintiffs and to declare the challenged provisions unenforceable against out-ofstate manufacturers. To explain our reasons, we first review the statutory provisions and procedural history of the case. Then we apply the Commerce Clause analysis to three categories of challenged provisions: security terms, clean room specifications, and audit requirements. * * *

The Indiana Act directly regulates the production facilities and processes of out-of-state manufacturers and thus wholly out-of-state commercial transactions. It poses the clear risk of multiple and inconsistent regulations that would unduly burden interstate commerce. As applied to out-of-state manufacturers, the challenged extraterritorial laws violate the Commerce Clause. * * *

For these reasons, we REVERSE the district court’s grant of summary judgment to the defendant state officials and REMAND to the district court to declare the challenged provisions unenforceable against out-of-state manufacturers and 22 No. 16-3071 to enjoin their enforcement against the plaintiffs. These instructions apply to the following provisions: Indiana Code §§ 7.1-7-4-1(d)(1)–(3), (6), (8)–(10); 7.1-7-4-6(b)(8), (10)–(16), and (19).

Here is the June 30, 2016 SD Ind. opinion.

[Updated at 2:00 pm] Here is preliminary Indianapolis Star coverage, by Tim Evans , Tony Cook and Mark Alesia.

Posted by Marcia Oddi on Monday, January 30, 2017
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 16 NFP memorandum decision(s))

For publication opinions today (2):

In Dennis Garner v. Gregory Stewart Kempf and Vanderburgh County Clerk, a 14-page, 2-1 opinion, Judge Altice writes:

Dennis Garner appeals from the trial court’s order denying his motion for proceedings supplemental. We reverse and remand with instructions. * * *

On appeal, Garner argues that the Clerk wrongfully released the bond proceeds to Kempf’s attorney after the attachment of an equitable lien and, as a result, is liable to him in the amount of $5,000. The trial court rejected this claim, reasoning that it was incumbent upon Garner to see to it that an entry was made on the CCS in the criminal case so as to notify that court of the lien. In support of this conclusion, the trial court relied on a purported “rule” issued by the Vanderburgh Circuit and Superior Courts.

The “rule” relied upon by the trial court, a copy of which is attached to its written order, is not a rule at all. Instead, it appears to be an internal memo, dated February 5, 2003, from the “Vanderburgh Circuit and Superior Courts” to a former Vanderburgh County Clerk. Id. at 13. This memo is not a part of the Vanderburgh County Local Rules, and there is no indication that it was ever even published or otherwise made available to the public. * * *

The trial court essentially concluded that it was Garner’s duty to provide notice of the lien to the criminal court. The parties have not directed our attention to any authority supporting the trial court’s conclusion that Garner was required to take an additional step not set forth in the garnishment statutes to preserve his claim to the bond proceeds, and any such requirement would appear to conflict with I.C. § 34-25-3-1. The Clerk’s failure to fulfill its duty as a garnishee defendant prevented Garner from collecting on his lien and, consequently, the Clerk is liable to Garner in the amount thereof. We therefore reverse and remand with instructions for the civil court to enter judgment accordingly.

Bradford, J., concurs.

Pyle, J., dissents with opinion. [that begins at p. 12] ... Because bail statutes are criminal statutes which must be strictly construed, I would conclude that the absence of legislative authorization allowing unrelated third parties to bring civil judgments into criminal courts to attach bond money means that there is no error in this case. See Hook v. State, 775 N.E.2d 1125 (Ind. Ct. App. 2002). Despite any local rule to the contrary, Garner was without authority to seek attachment of the bond money in this criminal case. * * *

Here, Kempf’s bond money was to serve the specific purposes listed in INDIANA CODE § 35-33-8-1. Fees could be deducted and/or attached only as authorized by statute. Otherwise, once the specific purpose was accomplished upon the disposition of the criminal case, any remaining balance must be returned to Kempf.

In Richard D. Shepard v. State of Indiana , a 6-page opinion, Sr. Judge Sharpnack writes:
Shepard raises one issue, which we restate as: Whether the trial court erred in denying Shepard good time credit for days served in community corrections. * * *

In the current case, the trial court did not choose to deprive Shepard of good credit time as a sua sponte sentencing consideration but instead acknowledged the community correction program’s disciplinary decisions and incorporated them into the final judgment. Requiring the trial court to ignore the program’s deprivation of Shepard’s credit time for his violations of the rules would have effectively nullified the program’s disciplinary decisions. Pharr is distinguishable and does not compel reversal of the trial court’s decision.

NFP civil decisions today (4):

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

In the Termination of the Parent-Child Relationship of: C.H. (Minor Child), and D.S. (Father) v. The Indiana Department of Child Services (mem. dec.)

James F. Glass v. Gilliatte General Contractors, Inc. (mem. dec.)

Engel Manufacturing Company, Inc. v. Review Board of the Indiana Department of Workforce Development and D.R. (mem. dec.)

NFP criminal decisions today (12):

Nahamani Sargent v. State of Indiana (mem. dec.)

Elliott Tyson v. State of Indiana (mem. dec.)

Leonard Blackmon v. State of Indiana (mem. dec.)

David L. Moses v. State of Indiana (mem. dec.)

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

Melvin D. Levy v. State of Indiana (mem. dec.)

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

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

Terry R. Twitty v. State of Indiana (mem. dec.)

Joshua R. Walker v. State of Indiana (mem. dec.)

Harry Spicer v. State of Indiana (mem. dec.)

Christopher E. Wilson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, January 30, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - 2017 Session Legislative Deadlines

Important to keep in mind as you follow the General Assembly are the deadlines.

The most important ones coming up in February are:

Posted by Marcia Oddi on Monday, January 30, 2017
Posted to Indiana Government

Ind. Gov't. - "Funding elusive for Pence’s bicentennial projects"

Tony Cook had this important story on the front-page of the Sunday Indianapolis Star. A few quotes:

Vice President Mike Pence has a new home in Washington, D.C., and an office in the White House, but back in Indiana, state officials are still scrambling to figure out how to pay for several bicentennial construction projects Pence initiated as governor without a solid financing plan.

At issue are $53.5 million in new projects Pence sought as part of the state’s 200th birthday celebration last year. They included a new $2 million Bicentennial Plaza at the Indiana Statehouse, a $2.5 million education center at the neighboring State Library, a new $25 million state archives building and a $24 million inn at Potato Creek State Park in St. Joseph County.

Construction on the plaza — with its two large sculptures and water features — and the education center already are complete. Some design work for the archives building also has occurred. So far, the state has spent more than $5 million.

Skeptical lawmakers allowed Pence to spend taxpayer money on the projects as part of the state's 200th birthday celebration after he assured them he could pay for projects by leasing excess space on the Indiana's 340 state-owned cell towers.

But two years after those assurances were made, a cell tower deal has yet to materialize.

Now, Gov. Eric Holcomb, Pence's successor and fellow Republican, is trying to find a way to fill the $5.5 million hole those projects left in the state budget. * * *

[L]awmakers raised concerns when Pence first proposed funding the projects with a cell phone tower deal. Even Republican fiscal leaders expressed doubts about Pence's proposed funding mechanism after IndyStar exposed last year that any cell tower deal likely would fall short of fully funding the projects.

“I’m going on faith," Senate Appropriations Chairman Luke Kenley, R-Noblesville, said last year. "They assured me they can get this done.”

Amid such concerns — and in the heat of the presidential campaign — Pence announced in September that a cell phone tower deal had been reached with Ohio-based Agile Networks. The deal would provide the state with $50 million upfront and more during the life of the 25-year lease, his administration said.

“This agreement, if approved, will put underused assets into full play, enhance Indiana’s communication capabilities throughout the state and fund the state’s bicentennial projects,” Pence said at the time.

What Pence didn't say was that the deal with Agile Networks was far more expansive than advertised. Not only would it have given Agile control over the state's cell phone towers, it also would have allowed the company to use the state's vast fiber network.

That stirred fierce opposition from the state's cable and broadband trade groups, which represent companies such as AT&T, Comcast and Time Warner.

A spokesman for Agile declined comment for this story.

The deal was supposed to go before the state budget committee for final approval in December, but it did not end up on the agenda amid the behind-the-scenes controversy.

Now, the fate of the deal is uncertain.

Posted by Marcia Oddi on Monday, January 30, 2017
Posted to Indiana Government

Ind. Gov't. - "Indiana lawmakers' occupations not representative of population"

Michael Reschke of the $$ Bloomington Herald-Times reported Sunday:

When it comes to occupations, the Indiana General Assembly doesn’t exactly mirror the state’s workforce. According to occupational employment statistics from the U.S. Department of Labor for May 2015 — the most recent available online — Indiana’s 92,490 retail salespersons accounted for the largest percentage of the state’s 2.9 million workers. Combined food preparation and service workers made up the second-largest category, with 84,250 people.

Nearly 30 percent of the Indiana General Assembly’s 150 members are business owners, by far the largest occupation category in a Herald-Times analysis. The Legislature’s 24 lawyers or attorneys make up the second-largest category, at about 15 percent.

The Department of Labor’s data set did not include a category specifically for business owners, but lawyers made up about 0.2 percent of the state’s workforce.

Although the full-text is available only to subscribers, Indiana Economic Digest has republished this portion of the story.

Posted by Marcia Oddi on Monday, January 30, 2017
Posted to Indiana Government

Courts - "Will The SCOTUS End Venue Shopping In Patent Cases?"

That is the heading of a long Jan. 26th National Law Review article on the case of TC Heartland LLC v. Kraft Foods Group Brands LLC (SCOTUSblog case page here), authored by Arun J. Mohan and Jaimin Shah of Schiff Hardein LLP - it begins:

The Supreme Court recently agreed to hear a challenge to the current interpretation of the venue statute in patent infringement cases. As the Federal Circuit currently interprets the patent venue statute, a plaintiff may sue in any district where the defendant is subject to personal jurisdiction, which for many corporations means virtually any venue in the land. In its petition to the Supreme Court, TC Heartland LLC argues that this broad range of venue choices available to plaintiffs has spurred “venue shopping” in patent cases.

Venue shopping has concentrated patent infringement litigation in a few “plaintiff-friendly” districts. In 2015, almost 65 percent of patent cases were filed in just five district courts. The Eastern District of Texas was the most preferred venue, accounting for more than 40 percent of patent cases filed.

TC Heartland urges a narrower interpretation of the venue statute—e.g., where the defendant is incorporated. It argues that a narrower interpretation would limit a plaintiff’s venue choices, disperse patent cases more widely throughout the federal courts system, and reduce forum shopping.

Kraft Food Groups Brand LLC sued TC Heartland in the District of Delaware alleging infringement of three patents related to liquid water enhancer products. TC Heartland asserted that it is not registered to do business in Delaware and has no contracts to do business in the state; TC Heartland is an LLC organized under Indiana law and is headquartered in Indiana. TC Heartland, therefore, moved to transfer venue to the Southern District of Indiana. Kraft opposed.

Posted by Marcia Oddi on Monday, January 30, 2017
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 1/30/17):

Next week's oral arguments before the Supreme Court (week of 2/6/17):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/30/17):

Next week's oral arguments before the Court of Appeals (week of 2/6/17):

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

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


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

Posted by Marcia Oddi on Monday, January 30, 2017
Posted to Upcoming Oral Arguments

Friday, January 27, 2017

Law - "Trump's regulation freeze makes losers out of some U.S. businesses"

Lorraine Woellert reports for Politico in a long story that begins:

President Donald Trump’s quick suspension of new federal regulations has triggered some unintended consequences: sudden pain and deeper uncertainty for a broad array of U.S. businesses.

Oil and gas companies, ethanol producers, real estate agents and small farmers are among those that could be hurt by the regulatory freeze. Some are lobbying to preserve regulations that Trump put on hold.

“I want him and whoever’s in his Cabinet to look at what the rules are saying,” said Eric Hedrick, a West Virginia chicken farmer trying to save an Obama-era rule. “Don’t just say that it’s another regulation. Look at what it says. Look at what the rule will do for farmers and ranchers across the country.”

The sweeping executive order, signed hours after the president’s inauguration, was intended to help American businesses by halting rules developed in the waning days of the Obama administration. Trump later vowed to cut regulations by 75 percent.

While many businesses are cheering Trump’s sprint to deregulate, the reaction from some corners of the business landscape underscores how complicated the issue is. For every government regulation, there are winners as well as losers.

ILB readers may recall a similar controversy in Indiana earlier this month, with posts such as "Pence could leave state with no energy standards for buildings" and "Troubling lapse: State loses sight of fairground tragedy lessons", culminating with this Jan. 9th post, headed "Editorial: Ideology shouldn’t trump safety."

Posted by Marcia Oddi on Friday, January 27, 2017
Posted to General Law Related

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

Updating this ILB post from Nov. 16, 2016, the federal district court for the WD Wis. has today filed an 8-page order setting out the remedy:

IT IS ORDERED that the defendants are enjoined from using the districting plan embodied in Act 43 in all future elections.

IT IS FURTHER ORDERED that the defendants have a remedial redistricting plan for the November 2018 election, enacted by the Wisconsin Legislature and signed by the Governor, in place no later than November 1, 2017. This plan must comply with our November 21, 2016 order but may be contingent upon the Supreme Court’s affirmance of our November 21, 2016 order.

The clerk of the court is directed to enter judgment in favor of the plaintiffs.

Here is coverage from the Milwaukee Journal-Sentinel. It begins:
Madison — After striking legislative maps down as unconstitutional two months ago, a federal court Friday ordered Wisconsin Gov. Scott Walker and lawmakers to redraw the state's legislative maps by Nov. 1 to ensure their use in the fall 2018 elections.

The three-judge federal panel rejected the state's request to wait until the U.S. Supreme Court has weighed in on the case, which is being watched closely nationwide because it relies on a novel legal argument.

Posted by Marcia Oddi on Friday, January 27, 2017
Posted to Courts in general

Ind. Decisions - 7th Circuit decides one Indiana case today, on immunity of witnesses

In Lana Canen v. Dennis Chapman (ND Ind., Lozano), a 16-page opinion, Judge Ripple writes:

Lana Canen was convicted of felony murder on August 10, 2005 in Indiana state court. Over seven years later, the state postconviction court vacated her conviction after Detective Dennis Chapman, the state’s fingerprint expert, recanted his trial testimony. He conceded that he mistakenly had identified a latent fingerprint found at the crime scene as belonging to Ms. Canen. The misidentification occurred because Detective Chapman only was trained to compare “known prints” (i.e., digital, ink, or powder fingerprint exemplars), not “latent prints” (i.e., invisible, unknown fingerprints found at a crime scene), and thus lacked the necessary qualifications to identify the latent print removed from the crime scene. At no time had he disclosed his lack of training to any party in the underlying state criminal proceeding.

Following her release, Ms. Canen brought this action against Detective Chapman under 42 U.S.C. § 1983. She claimed that he had withheld his lack of qualification to perform latent fingerprint analysis and therefore had violated Brady v. Maryland, 373 U.S. 83 (1963). The district court dismissed the case at summary judgment. It held that Detective Chapman was entitled to qualified immunity. Ms. Canen then filed an appeal in this court.

We now hold that the district court’s analysis was correct. Detective Chapman’s failure to disclose that he was not trained as a latent print examiner cannot be characterized as a violation of any clearly established right, and, accordingly, the doctrine of qualified immunity protects Detective Chapman. Moreover, to the degree that this action is premised on the preparation or presentation of his trial testimony, absolute immunity protects him. Accordingly, we affirm the judgment of the district court.

Posted by Marcia Oddi on Friday, January 27, 2017
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Roger Wilkinson v. State of Indiana , a 24-page opinion, Sr. Judge Barteau writes:

Roger Wilkinson appeals his convictions of possession of methamphetamine, a Level 5 felony, unlawful possession of a syringe, a Level 6 felony, operating a vehicle while intoxicated, a Class A misdemeanor, operating a vehicle with a Schedule I or II controlled substance or its metabolite in the body, a Class C misdemeanor, and possession of marijuana, a Class B misdemeanor. We affirm.

Wilkinson raises the following restated issues for our review: I. Whether there was sufficient evidence to support his convictions related to operating a vehicle; II. Whether the warrantless search of his vehicle violated the Indiana and Federal constitutions; and III. Whether the trial court abused its discretion when it denied his motion to correct error alleging juror misconduct.

NFP civil decisions today (1):

In the Matter of the Term. of the Parent-Child Relationship of K.T., Father, and L.T., Child, K.T. v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (6):

Alfred S. Sanders v. State of Indiana (mem. dec.)

Deontray Foster v. State of Indiana (mem. dec.)

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

Diana S. Davis v. State of Indiana (mem. dec.)

Joshua Batchelor v. State of Indiana (mem. dec.)

Marilyn Viers v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, January 27, 2017
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Allen County courts going paperless Feb. 6"

The subhead to this good Jan. 21st story in the Fort Wayne Journal Gazette, reported by Ron Shawgo, is "29 counties online as part of state effort; public access unclear." Some quotes from the long story [ILB emphasis]:

A seismic shift is coming in the way work is done at the Allen County Courthouse.

Electronic filing, the computerized way to record documents without setting foot in a courthouse, is arriving Feb. 6 as part of a statewide effort to go paperless. Twenty-nine counties are already online.

“It’s really been a foundational rethinking of how the courts work in Indiana,” said John McGauley, Allen Superior Court executive.

Like filing tax returns electronically, court e-filing will allow legal documents to be submitted from distant computers, saving law firms time and money and easing the workload for courthouse staff. Remote access to those online documents for the general public is yet to be determined.

It has been a steep learning curve in Allen County. The way paper has moved through the courthouse for decades is not the way it will move electronically, McGauley said.

Aside from new cables, monitors and software, part of the process requires court personnel to scan old documents into the new electronic system. Lawyers are also learning the process, and the Allen County Bar Association plans a Feb. 3 seminar for them, said Gina Zimmerman, bar executive director.

In Allen County, e-filing will be voluntary for attorneys beginning Feb. 6 and mandatory on April 7.

More from the story:
“We will no longer lose any filings or files, which has long-plagued paper court systems all over the country,” Allen Superior Court Judge Craig Bobay said. “But once those documents are in the system, we know where to locate them.”

While the public will be able to e-file documents if, say, they are defending themselves in a legal matter, the system will not allow access to detailed records. The state court system is still grappling with how to handle sensitive records, such as divorce decrees, that could pose a risk or an embarrassment to children if easily accessed online, Bobay said.

That information is public now, he added, “but you have to come down to the courthouse and know to look up that file, and you have to spend the time to read through all that. I think they call it something like practical obscurity.”

“Presently it’s a case management system, not a case records system,” Bobay said of the new e-filing setup. “And it’s my hope that eventually it becomes both.”

Posted by Marcia Oddi on Friday, January 27, 2017
Posted to Indiana Courts

Ind. Gov't. - More on: AG Hill "expresses concern of needle exchange legislation"

Updating this ILB post from yesterday, Shari Rudavsky of the Indianapolis Star reports today:

Needle exchanges may turn out to be a prickly subject between the governor and the state’s top lawyer.

Earlier this month, Gov. Eric Holcomb said he supports allowing local officials to approve syringe exchange programs that aim to reduce the spread of diseases such as hepatitis and HIV among intravenous drug users.

But when an Indiana House of Representatives committee heard testimony Wednesday about a bill that would do just that, Attorney General Curtis Hill raised concerns about the proposal.

In a statement released after the meeting of the committee on public health, Hill said the current needle exchange legislation, passed two years ago, has “evolved into a needle giveaway.” * * *

The Centers for Disease Control and Prevention endorses syringe exchange programs as a way to reduce harm and prevent people who use intravenous drugs from contracting HIV.

For many years, such programs were illegal in Indiana. But two years ago, after an HIV outbreak associated with intravenous drug users in Scott County, the state passed a law allowing for needle exchange programs. Nine counties currently have needle exchange programs.

In addition to making it easier for local officials to adopt needle exchange programs, Holcomb said he planned to create the position of drug czar in his office to address substance abuse.

Posted by Marcia Oddi on Friday, January 27, 2017
Posted to Indiana Government

Ind. Courts - "Court of Appeals wipes clean Granger man's $10k credit card debt"

That is the heading to this Jan. 26th WNDU16 story by Mark Peterson, about the Jan. 20th Court of Appeals opinion in Kevin T. Williams v. Unifund CCR, LLC (ILB summary here). The story begins:

Good economic times are a great time to try and collect bad debt racked up during the recession.

In fact, a local court case indicates that some collectors are trying too hard. “And there have been many cases where people paid a debt off and debt collectors came after them, some companies got in trouble for selling debts that were discharged in bankruptcy,” said Judy Fox, Director of the Notre Dame Clinical Law Center.

The law center took the case of a Granger man who claimed his $10,000 credit card debt was accumulated past the statute of limitations. This week, the Indiana Court of Appeals reversed the case—effectively eliminating the debt.

Much of the increased debt collection activity comes from debt buying companies that are commonly a source of consumer complaints. “And when they buy these debts they come with a contract that says right on there that he company is not guaranteeing that any of these are legitimate. That the debt buyer is buying them knowing that they might not be legitimate debt,” Fox said. * * *

In the local case, the Indiana Court of Appeals ruled that a debt buying company called Unifund failed to prove it had the right to collect the past due debt of a Granger man, and failed to prove that the debt even existed.

ILB: Interesting also is this case (via SCOTUSblog), recently argued before the SCOTUS.

Posted by Marcia Oddi on Friday, January 27, 2017
Posted to Ind. App.Ct. Decisions

Thursday, January 26, 2017

Courts - "Texas voting-rights case may pivot"

Carl P. Leubsdorf, a columnist for the Dallas Morning News, writes today on the Texas voting rights case. His comments are particularly interesting in light of: (1) the voter ID cases in which Indiana has played a part, and (2) President Trump's insistent assertions of massive voter fraud in the last election. A few quotes:

A three-year fight to protect the voting rights of Texas minorities seems to have become one of the first targets of Donald Trump's presidential administration. The outcome could have far-reaching implications, and an interim Supreme Court ruling might only provide short-term comfort.

Within hours of Trump's inauguration, his administration requested and received a one-month delay in Tuesday's scheduled Corpus Christi federal court hearing on issues surrounding the constitutionality of the 2011 Texas voter ID law, which allowed voters to use only a handful of identifications at polling places. * * *

The voter ID case is one of two long-pending court cases that challenge efforts by Texas Republicans that many consider aimed at diluting the voter strength of the state's rapidly growing Hispanic population. The other concerns the 2011 reapportionment of congressional and legislative seats.

Critics of the latter said it minimized the voting rights of minorities, who tend to vote more Democratic than Republican. While a three-judge federal court implemented an interim, fairer plan, the original case remains undecided.

On voting rights, Obama's Justice Department refused -- using the Voting Rights Act's provision for pre-review of such changes -- to approve the Texas law on grounds that by limiting the number of acceptable IDs for voters, it placed an undue burden on Hispanics and African-Americans and could disenfranchise up to 600,000 Texans.

But when the Supreme Court ruled in June 2013 that pre-clearance was no longer needed, Texas implemented its law, prompting litigation to block it. * * *

Civil rights groups expressed deeper fears. "We are deeply concerned that this Justice Department is preparing to abandon its commitment to enforcement of the nation's civil rights laws," said Kristen Clarke, president and executive director of the Lawyers Committee for Civil Rights.

Rights groups say restrictive voter ID laws enacted in more than a dozen states since 2011 are Republican political efforts to curb voting by Democratic-leaning minorities. While the stated purpose of such laws is to prevent voter fraud, supporters have been unable to show that fraud is a problem, in Texas or elsewhere.

Texas rejects the contention of critics that such laws limit voting. However, Texas' 43 percent turnout of its voting age population in November was again one of the country's lowest.

The Supreme Court sanctioned voter ID laws in a 2008 decision on an Indiana statute. However, the authors of both the appeals court decision in the Indiana case, conservative Judge Richard Posner, and the Supreme Court verdict, retired liberal Justice John Paul Stevens, have since expressed doubts about their actions.

Both the Texas law, which limits valid IDs to seven items, and a strict North Carolina law rejected by another appeals panel are more restrictive than the Indiana law. Additional court cases are pending on other states' statutes, meaning the court's ultimate verdict could have a far-reaching impact.

And while the Obama Justice Department sought wherever possible to make voting easier, signs are the Trump administration's goal may be to make it harder.

Posted by Marcia Oddi on Thursday, January 26, 2017
Posted to Courts in general

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

For publication opinions today (1):

In U.S. Bank, National Association, Successor to National City Bank v. Jewell Investments, Inc., a 14-page opinion, Judge Crone writes:

Jewell Investments, Inc. (“Jewell”), filed a foreclosure action naming U.S. Bank, National Association, Successor to National City Bank (“Bank”) as a defendant as to a certain piece of real estate. Bank filed a summary judgment motion, asserting that it was a bona fide purchaser of the real estate and therefore its lien was entitled to priority over Jewell’s. The trial court denied Bank’s motion. Bank now appeals. We conclude that Bank carried its burden to show that there is no genuine issue of material fact as to whether it is a bona fide purchaser and that it is entitled to judgment as a matter of law. Accordingly, we reverse and remand with instructions to enter summary judgment in favor of Bank. * * *

Here, Jewell concedes that the Jewell Mortgage does not contain the legal description of the Real Estate. Accordingly, Bank cannot be charged with constructive notice of Jewell’s interest. Nevertheless, Jewell argues that its “description of the Real Estate on the mortgage provided U.S. Bank with sufficient notice of Jewell’s superior interest.” In essence, Jewell’s argument is that Bank may be charged with implied or inferred actual notice. * * *

Although Jewell asserts that the street address on the Jewell Mortgage was sufficient to provide Bank with notice, Jewell did not designate any evidence regarding how the street address would operate to alert Bank to Jewell’s interest and its unauthenticated title search is inadequate to show that there is a genuine issue of material fact. Based on the designated evidence, we conclude that Bank established that it was a bona fide purchaser for value as against Jewell. Accordingly, the trial court erred in denying Bank’s motion for summary judgment. We reverse and remand for entry of summary judgment in favor of Bank.

NFP civil decisions today (2):

Mobile Home Management Indiana, LLC v. Avon Village MHP, LLC and State of Indiana Bureau of Motor Vehicles and Treasurer of Hendricks County Indiana (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of J.W. (Minor Child), and B.W. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (3):

Antwain Starks v. State of Indiana (mem. dec.)

Damon L. Taylor v. State of Indiana (mem. dec.)

Wallace Henderson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, January 26, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Demajio Ellis v. State of Indiana , a 14-page, 5-0 opinion, Justice Rucker writes:

Petitioner appeals the denial of post-conviction relief contending his plea of guilty to four class A felony offenses was invalid because at the time Petitioner entered the plea he also professed his innocence. We agree and reverse the judgment of the post-conviction court. * * *

In a memorandum decision the Court of Appeals affirmed the judgment of the post-conviction court. See Ellis v. State, 50 N.E.3d 154 (Ind. Ct. App. 2016) (Table). Having previously granted transfer, we now reverse the judgment of the post-conviction court. Additional facts are set forth below.

In this appeal Ellis abandons his claim that his plea of guilty was not entered knowingly, intelligently, and voluntarily as well as his claim that there was no factual basis to support the plea. Instead Ellis focuses on a single allegation of error: the trial court’s acceptance of Ellis’ plea in light of his protestation of innocence. * * *

At the guilty plea hearing, Ellis expressly asserted he “didn’t cut nobody” and he “did not rob nobody.” He further professed that he tried to stop the attack by telling Alexander “don’t do it.” These statements equate to a denial of culpability on Ellis’ part and we cannot ignore such repudiations even though the defendant contributed to his own demise by pleading guilty. See Norris v. State, 896 N.E.2d 1149, 1154 (Ind. 2008) (Boehm, J., concurring in result) (“Any system of justice must allow for correction of injustice based on clear and convincing evidence of innocence, even if the defendant can be said to have contributed to his own plight by pleading guilty.”). In sum, the declarations here are a denial of culpability such that Ellis “never made the reliable admission of guilt that Indiana requires.” Carter, 739 N.E.2d at 130. And where Ellis’ “guilty plea [wa]s accompanied with a protestation of innocence and unaccompanied by evidence showing a factual basis for guilt, the trial court should [have] never accept[ed] it.” Boles v. State, 303 N.E.2d 645, 654 (Ind. 1973).

Conclusion. On de novo review we conclude that by a preponderance of the evidence the petitioner has demonstrated that the evidence as a whole leads unerringly and unmistakably to the conclusion the post-conviction court erred in denying his petition for relief. We therefore reverse the judgment of the post-conviction court and remand this cause for further proceedings.

Posted by Marcia Oddi on Thursday, January 26, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - AG Hill "expresses concern of needle exchange legislation" [Updated]

Jacob Burbrink, Internet Director, WPTA21, reported late yesterday:

Ind. (WPTA 21) -
Indiana's Attorney General addressed his concerns Wednesday of legislation introduced that would expand statewide needle exchange programs.

The proposed legislation would allow a county or municipality to approve the operation of a syringe exchange program. The programs enacted in this way would be allowed to be renewed for not longer than two years. They would also be required to keep a sufficient supply of an overdose intervention drug in stock. The state health commissioner would be given written notice when the programs are renewed, expired or terminated or if the organization operating it changes.

Currently, only counties possess the ability to call for needle exchange programs. They can only do this when a health emergency, such as Hepatitis-C or HIV outbreaks, occur. Indiana Attorney General Curtis Hill says the proposed bill would eliminate the requirement that exchange programs only be initiated in response to health emergencies. He says while well intended, this can lead to issues down the road.

“The current needle exchange program may be well intended, but it has evolved into a needle giveaway, ultimately contributing to more syringes being passed around and shared in our communities," Attorney General Hill said.

Attorney General Hill says the proposed bill would only allow more communities to pass out needles without justifiable cause. He says this would be a detriment to efforts to get victims of drug abuse the treatment they need. * * *

Attorney General Hill assured the Public Health Committee that his office is willing to work with them towards a more comprehensive solution aimed at solving the State’s heroin problem.

“I don’t want another Hoosier to die from their addiction – especially with a needle provided by the State of Indiana.”

ILB: It is unclear from the story whether this is from a news release, or if AG Hill testified at a committee hearing.

The bill is HB 1438.

[Updated at 10:25 AM] Okay, it was a news release. You may read the full release here. It includes:

Attorney General Curtis Hill made this statement following his testimony this afternoon.

Posted by Marcia Oddi on Thursday, January 26, 2017
Posted to Indiana Government

Environment - "Indiana's dependence on coal is complicated"

That is the heading to a NUVO story by Michele Whitehair. A sample:

The harmful effects of coal do not end when it is burned to create energy. The next question in the debate over coal is what to do with the coal ash left over after coal is burned.

That question was partially solved in April 2015, when the EPA issued rules governing the disposal of coal ash. Adopting the rules was made voluntary for the states, but Indiana decided to go ahead with them.

The rules include practices for the disposal of coal ash in landfills and surface impoundments, or lagoons, as well as for beneficial use, which is where Indiana came across a snag in the plan, Maloney says. The issue is that existing laws will not allow the Indiana Department of Environmental Management to regulate beneficial use.

Enter House Bill 1230, which aims to allow IDEM to adopt the EPA's guidelines. Maloney testified on the bill when it was passed through the House Committee on Environmental Matters on Wednesday.

Posted by Marcia Oddi on Thursday, January 26, 2017
Posted to Environment

Ind. Courts - "Heavily armed suspect had map to Johnson Co. judge's home"

Vic Ryckaert of the Indianapolis Star reported yesterday in a story that begins:

INDIANAPOLIS — When police in Indiana busted a 31-year-old man with bomb-making materials, a rifle and a homemade silencer, they thought he might have been targeting a mall.

Christopher Byrne was in the parking lot of Greenwood Park Mall when a Greenwood police officer stopped him. But new evidence released in court this week shows he had home addresses for law enforcement officers and a judge.

According to court records filed Monday, authorities unlocked Byrne's cellphone and discovered "the defendant had obtained the home address of the presiding judge in this case, via Google maps, just a few days before his arrest."

The same day the information came to light, Johnson Superior Court Judge Cynthia Emkes recused herself and ordered that the Indiana Supreme Court assign a special judge to preside over Byrne's sentencing hearing.

Posted by Marcia Oddi on Thursday, January 26, 2017
Posted to Indiana Courts

Ind. Courts - More on "Supreme Court issued disciplinary opinion re Keith Henderson"

Updating a long line of ILB posts on Floyd County Prosecutor Keith Henderson (here is the most recent), Henderson's Supreme Court reprimand has now become a case study in ABA/BNA Lawyers’ Manual on Professional Conduct™. Access the article here, written by Samson Habte. After an introduction, the article continues:

The disciplinary proceedings were noteworthy to professional responsibility lawyers because there are few published court opinions addressing one ethics rule Henderson allegedly violated.

That rule—which exists in some form in every U.S. jurisdiction except California—says lawyers can’t negotiate for the media rights to literary or cinematic works based on a case they are handling for a client or a case they have been asked to handle for a prospective client.

Voting unanimously, the Indiana Supreme Court held that Henderson did violate Indiana’s version of that standard, which is identical to ABA Model Rule 1.8(d).

But the court went on to impose a public reprimand in a brief opinion that disappointed bar authorities, who argued for a harsher sanction.

There are few reported disciplinary cases interpreting state versions of Model Rule 1.8(d), and one legal ethics treatise notes that “leading national commentators” give the rule “little or no attention.”

The treatise’s author, William J. Wernz, also wrote that the rule aims to eliminate the “severe conflicts” that can arise when a lawyer acquires the literary or media rights to portrayals of a client’s case before a representation has concluded. Minnesota Legal Ethics 455 (5th ed. 2015).

“A lawyer who foresees financial gain from publicizing a case would have an incentive to make the case sensational, or suspenseful, or to emphasize a client’s colorful but unseemly character traits or behavior,” Wernz wrote.

Posted by Marcia Oddi on Thursday, January 26, 2017
Posted to Ind. Sup.Ct. Decisions | Indiana Courts

Wednesday, January 25, 2017

Ind. Decisions - Supreme Court decides two today

In Michael T. Shoun v. State of Indiana, a 12-page, 5-0 opinion, Justice David writes:

A jury found defendant guilty of murdering his 17-year-old girlfriend and recommended a sentence of life without parole. The trial court entered judgment accordingly. In a direct appeal, defendant now challenges his sentence arguing that: 1) the trial court committed fundamental error because it should have sua sponte determined that he had an intellectual disability, precluding a life without parole sentence, even though his trial counsel withdrew the petition to determine whether he had said disability; 2) his sentence is unconstitutionally disproportionate pursuant to Article 1, Section 16 of the Indiana Constitution; and 3) his sentence is inappropriate pursuant to Indiana Appellate Rule 7(B). In light of the facts and circumstances of this case, we hold that the trial court did not commit fundamental error, that defendant’s sentence is proportional considering the severe nature of the crime and that defendant’s sentence is not inappropriate in light of the nature of the crime and his character. Accordingly, we affirm the trial court. * * *

Shoun makes three arguments that his LWOP sentence is inappropriate, each hinged primarily on his assertion that he suffers from an intellectual disability. However, Shoun’s own trial counsel did not believe he could make the required statutory showing to prove this intellectual disability and withdrew the petition for such a determination. Because the record on this issue is incomplete, the trial court did not commit fundamental error by not finding sua sponte that Shoun suffered from an intellectual disability. We also find that because the nature and quality of Shoun’s alleged intellectual disability is uncertain and the nature of the crime so severe, Shoun’s sentence is proportioned to the offense and thus, does not violate Article 1, Section 16 of the Indiana Constitution. Finally, looking at the severe nature of the crime and Shoun’s character, Shoun’s sentence is not inappropriate pursuant to Appellate Rule 7(B). Accordingly, we affirm the trial court’s LWOP sentence.

In Anthony J. Wampler v. State of Indiana, a 3-page, 5-0, per curia opinion, the Court writes:
Defendant Anthony Wampler has a history of psychiatric problems and hospitalizations
dating back to approximately 1981, when he was in his teens. * * *

[ILB: In the July 28, 2016 COA 2-1 opinion affirming Wampler's sentence for two counts of Class B felony burglary and his status as an habitual offender, J.Mathias dissented, writing in part, as quoted in this ILB post:

This is a clear case of punishing someone for mental illness rather than having any interest in humanely recognizing the difference between mental illness and criminal behavior. We Hoosiers are better than that, and indeed, I believe that Article 1, Sections 15, 16 and 18 of the Constitution of Indiana expect us to be better than that. * * *

Under these facts and circumstances, I cannot agree that a thirty-three-year sentence is appropriate given the nature of the offense—a minor burglary—and the character of the offender—a man with obvious, serious mental health issues. I therefore respectfully dissent from the majority opinion. Because Wampler challenged only his sentence as inappropriate, I would find it to be so and reverse Wampler’s sentence and remand with instructions to impose the minimum sentence of six years with a ten-year habitual offender enhancement.

The Supreme Court today, after also quoting portions of the dissent, concludes:]

Pursuant to our authority under Appellate Rule 7(B), and on the strength of Judge Mathias’s dissent, we find that an aggregate sentence of thirty-three years is inappropriate. Accordingly, we grant transfer and revise Wampler’s sentences to concurrent six-year terms on the burglary convictions, and ten years on the habitual offender adjudication, for an aggregate sentence of sixteen years. In all other respects we summarily affirm the Court of Appeals’ decision. See Ind. Appellate Rule 58(A)(2). We remand this case to the trial court with instructions to enter a revised sentencing order consistent with this opinion.

Posted by Marcia Oddi on Wednesday, January 25, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decides second Indiana case today, a prisoner appeal

In Thomas James v. Lorenzo Eli (SD Ind., Lawrence), a 7-page opinion, Judge Posner writes:

James, a former inmate of Indiana’s New Castle Correctional Facility, appeals from an adverse judgment, following the district judge’s grant of summary judgment for the defendants, in his suit under 42 U.S.C. § 1983 against two doctors who he contends were deliberate‐ ly indifferent to his need for medical treatment for an infect‐ ed toenail and an injury to his jaw. * * *

We are mindful that there is no right to an appointed lawyer in civil litigation. We are mindful too that despite lawyers’ ethical obligation to assist those who are too poor to afford counsel, there may be a dearth of lawyers in a district who are willing and able to serve in this sort of case, and 28 U.S.C. § 1915 does not authorize a district court to command unwilling lawyers to represent prisoners. Mallard v. U.S. Dis‐ trict Court for the Southern District of Iowa, 490 U.S. 296, 310 (1989). When there is a scarcity of willing lawyers, a trial judge can and should exercise discretion to assign those lawyers to cases in which they are most needed. But we have also recognized (and not only in Rowe v. Gibson) that law‐ suits involving complex medical evidence are particularly challenging for pro se litigants. See, besides Rowe, Dewitt v. Corizon, Inc., 760 F.3d 654, 658 (7th Cir. 2014); Henderson v. Ghosh, 755 F.3d 559, 566 (7th Cir. 2014); and Santiago v. Walls, 599 F.3d 749, 761 (7th Cir. 2010). If a pro se plaintiff in such a case is unable despite his best efforts to obtain a lawyer and a medical expert, and if the case would have a chance of suc‐ cess were the plaintiff represented by counsel, the trial judge should endeavor to obtain them for him. Rowe v. Gibson, su‐ pra, 798 F.3d at 631–32; Miller v. Campanella, 794 F.3d 878, 880 (7th Cir. 2015); Henderson v. Ghosh, supra, 755 F.3d at 566; Montgomery v. Pinchak, 294 F.3d 492, 504–05 (3d Cir. 2002). * * *

Now it is possible that, more than nine years having elapsed since the injury to his jaw, the plaintiff is incorrectly attributing his present pain and jaw dysfunction to the inju‐ ry; and it is also possible that he received adequate treatment from the two defendant doctors and wouldn’t have benefit‐ ted from surgery on his jaw. Yet he says he still experiences jaw pain and dysfunction (difficulty eating, sleeping, etc.) and recently he’s been diagnosed with a tumor in his neck, which he attributes to his jaw injury because the tumor is close to his jaw. That may be mistaken, but it definitely is possible that he has a meritorious Eighth Amendment claim if his current difficulty with his jaw is attributable to the in‐ jury and if there was some type of treatment or surgery that could have prevented it, which he would have received had he been given adequate medical treatment. On the basis of the record compiled so far, all we know is that he may have suffered terribly because of inadequate treatment and may have sustained permanent injury.

We close by noting that this suit began in 2009 and will soon be in its eighth year even though it should have been apparent from the start that the plaintiff would need counsel and a medical expert witness in order to get to first base. We are vacating the judgment of the district court for the reasons explained in this opinion, and we urge the district court on remand to expedite the litigation.

Posted by Marcia Oddi on Wednesday, January 25, 2017
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Jerry Baker v. State of Indiana, an 8-page opinion, Judge Altice writes:

Jerry Baker pled guilty to operating a vehicle while intoxicated as a Class A misdemeanor. Following a restitution hearing, the trial court ordered Baker to pay restitution in the amount of $2,082.00, which was the difference between the insurance payout for the totaled vehicle and the cost of a replacement vehicle. On appeal, Baker argues that the trial court abused its discretion in ordering him to pay restitution in the amount of $2,082.00. We reverse and remand.

The parties make competing arguments as to how to classify the restitution order—as a condition of probation or a part of the executed sentence. A review of the record reveals that Baker agreed to the standard conditions and fees of probation, which included the requirement that he “pay all Court-ordered fines, costs, fees and restitution as directed.” Further, in the written sentencing order, the court noted “restitution to [N]ancy Apollos TBD” in a comment section for probation. This same notation is included in a description of terms of probation on the Standard Conditions form. Thus, despite the fact that the trial court did not check a separate box indicating restitution was a condition of probation, we think that restitution was clearly intended as such. Consequently, it was incumbent on the trial court to inquire into Baker’s ability to pay and to fix the manner of performance with regard to the payment of restitution. See Bell v. State, 59 N.E.3d 959, 963 (Ind. 2016) (citing Pearson, 883 N.E.2d at 772). On remand, the trial court is directed to make such inquiry.

NFP civil decisions today (2):

Janet Caraboa v. Johnson County Fraternal Order of Eagles, Inc. #4132, New Whiteland Post #6978, Inc. Veterans of Foreign Wars, and Paul Martin (mem. dec.)

Rachel Stempien v. Jacqueline R. Keating (mem. dec.)

NFP criminal decisions today (3):

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

Matthew B. Bakewell v. State of Indiana (mem. dec.)

Daniel Massey v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, January 25, 2017
Posted to Ind. App.Ct. Decisions

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

In Rollie Mitchell v. USA (SD Ind., Barker), a 10-page opinion, Judge Bauer writes:

After his conviction for cocaine distribution, Petitioner Rollie Mitchell appealed his sentence; this Court affirmed. Petitioner then filed a motion for post‐ conviction relief under 28 U.S.C. § 2255, claiming that he receivedineffective assistance of counsel. He arguedthat,prior to trial, his attorney failed to inform him adequately of the details of the government’s plea offer and failed to advise him ofthe potentialramifications ofrejecting the offer andproceed‐ ing to trial. The district court denied the motion, finding that counsel’s performance was adequate and that Petitioner could not demonstrate that, absent any deficient performance, he would have accepted the plea offer. We affirm.

Posted by Marcia Oddi on Wednesday, January 25, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on "Ex-lawyer requests new judge in his theft case"

Updating this ILB post from June 15, 2016 about former Wayne County lawyer E. Thomas Kemp, Mike Emery reported Jan. 23rd in the Richmond Palladium-Item - the long story begins:

After a one-hour hearing Monday, a special judge denied a former Wayne County attorney's third request that the judge remove himself from a felony theft case.

Judge J. Steven Cox of Franklin County said he's "heard nothing new here today" and referred to his denial of the first request as the reason that he denied the latest application for a new judge filed by attorney Nathaniel Connor on behalf of E. Thomas Kemp.

However, the issue might reach the Indiana Supreme Court. Previous filings in the case indicated the defense was considering an emergency petition to the state's highest court, asking that the court order Cox to remove himself. The trial had been scheduled to begin Monday, but Cox pushed it back at the prosecution's request until Feb. 27.

Now that Cox has ruled that he will continue presiding over the case, the petition to the Supreme Court remains a possibility.

Cox accepted jurisdiction over the case when Superior Court II Judge Gregory Horn recused himself because of Kemp's prior service as a public defender in Wayne County.

Kemp, 49, is charged with nine counts of Class D felony theft and eight counts of Class A misdemeanor conversion. He is accused of mishandling money in a trust fund in one felony count and accepting money from clients without providing any legal services in the other counts. He ceased his local practice in 2014.

The application for a change of judge said Kemp believes he wouldn't receive a fair and impartial trial under Cox's jurisdiction. The supporting affidavit said Cox twice remarked during a pretrial conference in May that he had never accepted a felony plea agreement that included less than one year of incarceration for the defendant.

Each of the three applications for Cox to remove himself has come following Cox's rejection of a proposed plea agreement.

Posted by Marcia Oddi on Wednesday, January 25, 2017
Posted to Indiana Courts

Ind. Courts - "Free CLE- Annual Black History Month Event at the U.S. District Court"

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

The United States District Court for the Southern District of Indiana, along with the Bankruptcy Court, U.S. Attorney's Office, Probation Office, Marshals Service, and Indiana Federal Community Defenders, Inc., has announced that its annual Black History Month event is set for Friday, February 24, 2017. This year's speaker is Ms. A'Lelia Bundles, Madam C.J. Walker's great-great granddaughter and biographer. Madam Walker, born 150 years ago this December, is an Indianapolis legend, renowned for her entrepreneurial skills (she was one of the first female self-made millionaires) and philanthropy. Ms. Bundles will discuss Madam Walker and her attorney, Freeman B. Ransom, in a presentation titled, "An Amazing Partnership of Business and Law: Madam C. J. Walker and Attorney F. B. Ransom."

The event will take place at the Birch Bayh Federal Building and United States Courthouse (46 East Ohio Street, Indianapolis) on February 24 from 2:00 - 3:00 pm, in the William E. Steckler Ceremonial Courtroom (courtroom 202). One hour of CLE credit is pending approval. Musical entertainment will be provided by the North Central High School Northernaires gospel choir, and refreshments will be provided following the program. Registration is not required.

Posted by Marcia Oddi on Wednesday, January 25, 2017
Posted to Indiana Courts

Ind. Gov't. - "Indiana Senate [re]approves balanced budget amendment"

Back on May 1, 2015 the ILB had a post headed "Balanced Budget Amendment Passes First Round In General Assembly." It points to a "must-read in full article from Payne Horning of WFYI." The link is still good and the article is still worth reading.

Proposed constitutional amendments must pass two separately-elected General Assemblies, so the proposal may be adopted again in the 2017 or 2018 term of the current General Assembly. Here is Dan Carden's story yesterday in the NWI Times, reporting the approval of the amendment by the Indiana Senate. Some quotes:

On Tuesday, the Republican-controlled Indiana Senate voted 43-4 for Senate Joint Resolution 7, a proposed constitutional amendment requiring lawmakers spend no more in a two-year budget period than is expected to come in through tax collections.

State officials of both political parties have long followed that practice in accordance with the constitution's general prohibition on most types of state debt. * * *

State Sen. Karen Tallian, D-Ogden Dunes, was among the four senators voting against the amendment.

She suggested Hershman's proposal is imprecisely worded and could effectively prevent the state from ever spending its $2 billion reserve fund, or require billions of dollars be spent immediately to prop up state pension accounts if a stock market dip reduces their funding levels.

"I do not believe that we need this as a constitutional amendment," Tallian said.

The proposed amendment now goes to the Republican-controlled House, which overwhelmingly approved identical language in 2015.

If representatives again endorse the amendment, Hoosier voters will be asked to ratify or reject it at the 2018 general election.

Here is SJR 7.

Posted by Marcia Oddi on Wednesday, January 25, 2017
Posted to Indiana Government

Tuesday, January 24, 2017

Ind. Law - More on: Is Indiana law explicitly banning taking photographs in voting booth unconstitutional?

Updating this ILB post from Aug. 25, 2015, and this Oct. 24, 2016 ILB post that includes a link to Judge Sarah Evans Barker's Oct. 19, 2015 order granting the ACLU its motion for a preliminary injunction against IC 3-11-8-17.5, the law prohibiting a voter from taking a selfie of the voter's completed ballot:

Sec. 17.5. (a) Voters may use cellular telephones or other electronic devices in the polls as long as electioneering or loud or disruptive conversations do not occur.
(b) A voter may not do the following:
(1) Take a digital image or photograph of the voter's ballot while the voter is in a polling place, an office of the circuit court clerk (under IC 3-11-10-26), a satellite office established under IC 3-11-10-26.3, or a vote center established under IC 3-11-18.1-4, except to document and report to a precinct election officer, the county election board, or the election division a problem with the functioning of the voting system.
(2) Distribute or share the image described in subdivision (1) using social media or by any other means.
Now Judge Barker, in a 20-page order dated Jan. 19, 2017, has concluded:
Here, the State has failed to establish that the potentially broad array of photographs and images proscribed by Ind. Code § 3-11-8-17.5 are necessarily related to or limited to those involved in vote buying and voter coercion. Thus, the burden imposed on speech by the restrictions contained in this statute will fall on voters who are engaged in legally innocuous activities. This statute clearly does not advance the State’s asserted goals. At best, it provides an indiscriminate, blunt instrument to remedy a so-far undetected problem. As such, along with other defects, it fails to survive intermediate scrutiny for lack of narrow tailoring.

Conclusion. For the reasons detailed in this order, we hold that Ind. Code § 3-11-8-17.5 embodies a content-based restriction on speech that cannot survive strict or intermediate scrutiny because it neither serves compelling or significant state interests nor is it narrowly tailored to achieve those interests. Plaintiff ACLU’s Motion for Summary Judgment is therefore GRANTED and the State’s Cross Motion for Summary Judgment is DENIED. Final Judgment and Permanent Injunction of the enforcement of Indiana Code § 3-11-8-17.5 shall enter accordingly.

Posted by Marcia Oddi on Tuesday, January 24, 2017
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court issues disciplinary order suspending attorney at least two years for professional misconduct

In In the Matter of: Narles W. Coleman, a 6-page, 5-0, per curiam attorney disciplinary action, the Court writes:

We find that Respondent, Narles Coleman, engaged in numerous acts of attorney misconduct in connection with his representation of a client and subsequent civil suit against that client, and by committing domestic battery against his wife. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least two years without automatic reinstatement. * * *

Respondent already is under an order of suspension for dues nonpayment and for failing to fulfill his continuing legal education requirements. For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than two years, without automatic reinstatement, effective from the date of this opinion. Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, cures the causes of all suspensions then in effect, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(18).

The costs of this proceeding are assessed against Respondent, and the hearing officer appointed in this case is discharged.

Posted by Marcia Oddi on Tuesday, January 24, 2017
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (0):

NFP civil decisions today (3):

Jessica Mataranglo v. Meijer Stores Limited Partnership and Shannon Fuentes-LaCross (mem. dec.)

Erin McCallion-Holmes v. Sherrie Holmes (mem. dec.)

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

NFP criminal decisions today (1):

Javonieo d. White v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, January 24, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "Utilities wage campaign against rooftop solar"

Updating this March 09, 2015 ILB post is a lengthy Jan. 21st story in the IBJ, reported by John Russell, headed "Bill alarms solar-power advocates." The story reports on:

... a 12-year-old Indiana policy of allowing homeowners who generate their own electricity to ship any energy they don’t use to the grid and get a dollar-for-dollar credit from their utility.

But now, a bill introduced in the Indiana General Assembly would discontinue that policy, known as net metering—effectively wiping out a key financial incentive for homeowners and businesses to install rooftop solar systems and windmills.

The measure, known as Senate Bill 309, is sure to renew a fight between solar advocates, who want to keep the current system in place, and utilities, who say it’s unfair and should be changed.

Solar advocates say they are helping produce cleaner energy and supporting a growing industry. They argue state policy should encourage more people to do the same.

But utilities say customers with rooftop solar systems are basically getting a free ride, because they receive credits for producing their own energy yet still have access to the grid whenever they need it.

Utilities note that, when customers produce their own power, the cost of maintaining the grid doesn’t go down; it shifts to the rest of the customer base.

The bill is complex and the timetable for changes uncertain. But the outcome of the fight could shape whether Hoosier consumers and businesses embrace clean-energy alternatives in the decades to come, or remain largely on the sidelines.

Under the current system, if you generate your own electricity, you consume what you need and send the excess to the grid. Net metering is a mechanism that measures that excess. You are credited at an equal rate—now about 11 cents a kilowatt-hour, or what household customers pay for electricity at the retail rate.

Under the proposed changes, you would not get to keep the energy you produce, but would have to sell it all to the utility at a lower, wholesale rate—now about 3 cents a kilowatt-hour. Then you would have to buy all of their energy from the utility at the higher retail rate. That system is known as “sell all, buy all.”

The utility would keep the difference—now about 8 cents a kilowatt-hour—to maintain the grid and pay for other expenses.

Posted by Marcia Oddi on Tuesday, January 24, 2017
Posted to Indiana Government

Ind. Gov't. - Proposed compensation fund for those wrongfully convicted

Madeline Buckley reported earlier this week in the Indianapolis Star:

[23 people] have been officially exonerated in Indiana, according to the National Registry of Exonerations. They lost their jobs, freedom and family. They maintained their innocence as they lived for years, even decades, in Indiana prisons.

And they are largely on their own when they return to society and try to build a life. But lawmakers are trying to change that.

With bipartisan support, legislators have proposed two different bills that would establish a fund to compensate people for time spent imprisoned if they are exonerated by DNA evidence. The two bills — identical except for the amount of money offered — are a good start, experts say.

But the effort also shows how far Indiana still has to go before it catches up with other states that do far more for those who are wrongfully convicted.

"Indiana is still in the Stone Age,"[Willie Donald spent 24 years behind bars for a crime he didn't commit] said. * * *

If the measures pass, Indiana will join the 32 states that have compensation funds to help those who were wrongfully convicted start new lives. Such laws also help inoculate the state against lawsuits, as those seeking compensation give up their right to sue.

The measures already have the backing of both Democrat and Republican lawmakers — even though they haven't, at the outset, agreed on the level of compensation.

Rep. Greg Steurerwald, R-Avon, authored a bill offering compensation people wrongfully convicted. It was assigned to the Committee on Courts and Criminal Codes, of which Steurerwald is a majority member.

"These are innocent people," Steurerwald said, noting that the fund offers an alternative to a lawsuit. "Their lives have been disrupted and/or destroyed because of wrongful conviction."

Rep. Greg Porter, D-Indianapolis, who submitted another bill, said he was inspired by an IndyStar series that told the stories of the wrongfully convicted in Indiana. In particular, he noted the story of Keith Cooper, who pleaded to the governor's office for a pardon to erase his armed robbery conviction after the evidence against him fell apart. He served a decade in prison before he struck a deal with prosecutors for his release. * * *

Debate will likely focus on the amount of money the state should offer to people who have been exonerated. Porter's bill offers $35,000 per year imprisoned. Steurerwald's offers $25,000.

Both figures are on the low end. Texas, which has one of the most robust compensation laws in the nation, offers $80,000 per year of incarceration. Model legislation from the Innocence Project suggests a starting point of $50,000 per year of wrongful imprisonment, adjusted for inflation, and $100,000 per year on death row.

ILB: There is much more to read in this long story. One thing missing, however, is the bill numbers.

Posted by Marcia Oddi on Tuesday, January 24, 2017
Posted to Indiana Government

Ind. Gov't. - Johnson County: "Flood maps set to change"

Annie Goeller of the Johnson County Daily Journal reports in a long story that begins:

A [nation-wide] federal project to update maps of properties at risk of flooding has been restarted, and hundreds of homes and businesses could be included.

The city of Franklin recently sent letters to more than 600 property owners who would be impacted by the changes to the federal flood maps. What that would mean for those home, business and land owners could range from paying for flood insurance every month to facing restrictions when building.

The Federal Emergency Management Agency first unveiled the changes late in 2015. But the agency ran out of funding for the project and had to delay the process to update the maps until now, Franklin senior planner Joanna Myers said.

Now, that process is moving forward, and the city wants to make sure property owners know how they will be impacted and what they can do if they want to challenge the change, Myers said.

Here are some earlier ILB posts on flood map change.

Posted by Marcia Oddi on Tuesday, January 24, 2017
Posted to Indiana Government

Monday, January 23, 2017

Ind. Law- "Attorney who shot alleged attacker sues owners of Louisville parking garage where incident happened"

WAVE3 News, Louisville, had this brief story this afternoon by Joey Brown. The story begins:

LOUISVILLE, KY (WAVE) - A woman who shot and wounded a man who allegedly attacked her one year ago inside a downtown Louisville parking garage has filed a lawsuit against the garage's owners and others, claiming negligent security.

Attorney Kristen McMains was held up at knifepoint on January 26, 2016. She said John Ganobcik followed her onto the Fourth Street Live! parking garage elevator. When the doors opened, she ran to her car, but she said Ganobcik caught her, slammed her against her car, pulled a knife on her, demanded her money, and hit her in the face.

Ms. McMains is a licensed attorney in both Kentucky and Indiana. Today's WAVE story links to several earlier stories, including this one from last July that includes surveillance video ("Woman who shot man in parking garage: 'I thought he was going to kill me'") and another headed "Louisville attack survivor subject of NRA ad."

Posted by Marcia Oddi on Monday, January 23, 2017
Posted to Indiana Law

Law - "Jared Kushner, Trump’s Son-in-Law, Is Cleared to Serve as Adviser"

Michael S. Schmidt, Eric Lipton and Charlie Savage reported for the NY Times on Jan. 21st:

WASHINGTON — Hours after President Trump took his oath on Friday, the Justice Department issued an opinion saying that his appointment of his son-in-law, Jared Kushner, as a senior White House adviser would be lawful despite a federal antinepotism law.

In a 14-page opinion signed on Friday, a longtime career lawyer in the Justice Department’s Office of Legal Counsel said that the president’s special hiring authority exempted White House positions from a 1967 law barring the president from employing relatives at a federal agency. * * *

The revised position came after an effort by Jamie S. Gorelick, Mr. Kushner’s lawyer and a deputy attorney general during the Clinton administration who is now a lawyer at the firm WilmerHale, to clear away obstacles to Mr. Kushner’s appointment.

The entire story is worth reading and includes a link to the 14-page opinion from the Office of Legal Counsel.

Posted by Marcia Oddi on Monday, January 23, 2017
Posted to General Law Related

Law - "When Horse Diapers and Freedom of Religion Collide"

This topic is not new to the ILB. See this ILB post from Dec. 20, 2016 headed "Council members void ordinance about horse manure in Orange County" that also links to several other posts.

Nicole Hong of the $$ WSJ reported this weekend that "A law requiring horses to wear equine diapers is dividing a Kentucky town, where Amish residents say it violates their religion." Some quotes:

Horse diapers have been thrust into the debate over religious freedom.

Two Amish men in Auburn, Ky., filed a lawsuit last month saying a city ordinance requiring horses to wear equine diapers—bags designed to catch manure—violated the ability of Amish residents to exercise their religion.

The ordinance, passed in 2014, broadened an existing law mandating the removal of dog waste in public places. The new law, which the city said was spurred by complaints from neighbors about horse manure, requires a “properly fitted collection device” to be placed on all horses walking on the street. * * *

The plaintiffs are members of the Old Order Swartzentruber Amish religion, one of the most conservative Amish orders. They believe in shunning things that are “of the world,” the lawsuit said, including technology that some Amish groups accept, like fax machines, LED lights and gas-powered refrigerators. Before the ordinance passed in 2014, the community elders decided the equine diapers wouldn't be permitted by the Swartzentruber church. * * *

In Kentucky, a similar battle erupted around 2008 over the Amish’s refusal to affix orange-safety triangles to the back of their buggies. The Kentucky Supreme Court in 2012 ruled against the Amish. The following year, the state passed the Religious Freedom Restoration Act, which says the government can’t burden religious freedom unless there is a compelling interest and unless the government is using the least restrictive means to further that interest.

Posted by Marcia Oddi on Monday, January 23, 2017
Posted to General Law Related

Ind. Gov't. - Still more on "Carmel cracks down on homeowners listing their property on Airbnb" [Updated]

Updating this Jan. 18th ILB post, the Indianapolis Star has a long story by Chris Sikich. Some quotes [ILB emphasis]:

Now, local entrepreneurs such as McCormack who have been making money using their homes for short-term rentals are in a tough spot. Carmel mailed letters to area homeowners warning they were in violation of city zoning laws and had 10 days to cease operations or file for a variance. There are no provisions to allow short-term rentals in areas zoned for single-family homes within the city. People who live in apartments can continue to rent space on Airbnb and other sites, Carmel officials said, because their zoning regulations are different.

Mayor Jim Brainard isn't sure how many, if any, variances the city might grant homeowners. Carmel has never received, let alone approved, a request to use a home as a short-term rental on a travel website. The closest it has come is approving a house in Old Town as a bed-and-breakfast about 10 years ago after a lengthy zoning process.

Brainard said he has received complaints from residents, homeowners associations and area hotels about problems caused by short-term rentals. Residents, he said, are worried their property values and quality of life will be damaged by problems such as noise, speeding and increased traffic caused by a high turnover of people who don't care about the community.

"Someone who has bought a home probably has made the biggest investment of their lifetime," Brainard said, "and they have a right to rely on zoning being enforced. They have a right to know their neighborhood is going to remain single-family residential." * * *

Rep. Matt Lehman, R-Berne, has filed legislation that would prevent local communities from banning residents from renting rooms in their homes. An influential member of the Republican caucus, he ushered through similar legislation in 2015 for personal car rental services such as Uber and Lyft.

In addition to prohibiting a zoning ban, Lehman's bill seeks to prevent local governments from effectively banning short-term rentals by over-regulating them. The legislation would prevent governments from enacting overly strict regulations, such as adding costly fire prevention codes that go beyond what other homeowners face.

Governments and homeowner associations could enact regulations on issues such as noise and maintenance so long as they apply to all homes, not just rentals.

Owners renting out their homes would face some requirements. They would need to purchase insurance. They could not use the property as a short-term rental for more than 30 consecutive days. Lehman also is considering an amendment to limit the number of days per year the home can be used as a rental to deter people from purchasing homes as investment properties for short-term rentals. * * *

The [Carmel] mayor has heard from residents such as Shannon Minnaar. She emailed him recently to tell him investors had purchased a house in her neighborhood and now have it listed on a number of short-term rental sites. She told IndyStar she thinks the home has been used exclusively for rentals. Minnaar, 47, said neighbors are concerned about noise, traffic and the number of unknown people coming and going from the neighborhood at all hours. Carmel's decision, she said, was welcome.

"For me, the fact that Carmel zoning laws protect me from this type of behavior, or from this type of business being run in the neighborhood, is a lifesaver," she said.

Matthew Tully has a good column today in the Indianapolis Star headed "With Airbnb bill, another attack on local control." It begins:
Do we really have to do this every year?

It’s an annual tradition: State lawmakers who insist that they are small-government conservatives pepper us with bills aimed at stripping away the power of local governments to do what they think is best for their communities. It’s not only an annual tradition, it’s a particularly unfortunate one — kind of like pothole season, but even more annoying.

It’s most annoying because it reinforces the notion among many state lawmakers that they know better than the leaders and residents of cities and towns about what is best for those cities and towns. They seem to forget every year that mayors and local councils are elected by the people they serve, and that they are closest to the people they serve. And, it should be noted, mayors and council members are also the most likely to be held accountable for decisions that directly impact their communities.

The latest example of lawmakers butting into local issues comes from Rep. Matt Lehman. The Northern Indiana Republican has introduced a bill that would bar cities and towns from prohibiting homeowners from renting out their homes night after night on websites such as Airbnb. Carmel and other cities have taken steps to prohibit restrict such short-term rentals and it’s led to fascinating debates about property rights, both for those renting out homes they own and the neighbors impacted by having their blocks turned into hotel strips.

Regardless of where you fall on this issue, let’s agree that such decisions should be made by local residents and leaders, and perhaps by the courts. State lawmakers, this is not your business. Leave it to the locals.

This section of the column especially reverberates:
[T]he problem pops up every year at the Statehouse.

Republican lawmakers, for instance, have intruded on the ability of local officials to offer early voting options to their constituents. In Marion County, they ridded the City-County Council of four at-large seats, which happened to be held by Democrats, against the will of many local leaders and residents. They have taken steps that make it harder to address local environmental problems and last year, apparently with little else to do, they passed a blanket prohibition against local restrictions on disposable plastic bags at grocery stores.

Now you may hate the ideal of banning plastic bags. That’s fine. But if the city of Bloomington wants to encourage the use of reusable bags, and if the citizens of that city heartily support such a move, is it really the state legislature’s business?

In recent years, lawmakers have stepped hard on local efforts to fight back against slumlords and the owners of abandoned properties. They’ve overruled local efforts to place sane rules on when and where fireworks can be detonated. And while Republicans have been the biggest offenders in recent years, Democrats were not innocent back in the days when they had power at the Statehouse. * * *

Matt Greller, executive director of the Indiana Association of Cities & Towns, is used to the annual fight against local control at the Statehouse. He said it’s actually better this year than in previous years, but he and others are fighting hard against the bill to block local restrictions on short-term home rentals, House Bill 1133, which he argues, very convincingly, would adversely impact neighborhoods.

“There are variance hearings and local boards to appeal to in every city and town,” he said. In other words: This is a local issue and the state legislature should mind its own business.

ILB: HB 1133 is up for amendment and vote in first house committee tomorrow at 10:30 am. Here is the agenda.

Here is another, earlier story, from Lindsey Erdody, Indianapolis Business Journal, dated Jan. 20th and republished in the Indiana Economic Digest. The heading: "MIBOR opposes Carmel's short-term rental restriction."

Posted by Marcia Oddi on Monday, January 23, 2017
Posted to Indiana Government

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

For publication opinions today (2):

In GHPE Holdings, LLC, d/b/a Godby Heating Plumbing Electrical v. Jason Huxley , an 18-page opinion, Judge Barnes writes:

GHPE Holdings, LLC, d/b/a Godby Heating Plumbing Electrical (“Godby”) appeals the trial court’s grant of summary judgment in favor of its former employee, Jason Huxley, in a suit brought under the Wage Payment Act (“WPA”). Godby also appeals the trial court’s judgment amount against Huxley in a counterclaim brought by Godby. We affirm in part, reverse in part, and remand. * * *

We reverse the trial court’s award of $972.71 in base wages to Huxley, as well as the doubling of that amount as liquidated damages. We remand for calculation of the wages to which Huxley is entitled after consideration of mandatory tax withholding only; Huxley is entitled to that net amount plus double the net amount. We affirm the trial court’s damages award on Godby’s counterclaim and its refusal to award treble damages or attorney fees to Godby. We also remand for a calculation of the reasonable appellate attorney fees to which Huxley is entitled with respect to defending the WPA judgment only.

In Indiana Bureau of Motor Vehicles, and Kent Abernathy, Commissioner of the Indiana Bureau of Motor Vehicles v. Craig Watson, a 14-page opinion, Judge Robb writes:
In 2015, the Indiana Bureau of Motor Vehicles (“BMV”) denied the renewal of Craig Watson’s chauffeur’s license. Following an unsuccessful administrative appeal, Watson petitioned for and the trial court granted him special driving privileges. BMV refused to issue Watson’s special driving privileges, and Watson subsequently filed a motion to compel the issuance of a valid chauffeur’s license, which the trial court granted. The Attorney General of Indiana then intervened on behalf of BMV and filed a motion to correct error alleging the trial court lacked personal jurisdiction to consider Watson’s motion to compel. The trial court denied BMV’s motion to correct error. BMV now appeals, raising one issue for our review, whether the trial court erred in denying its motion to correct error. Because Watson effectively petitioned the trial court for judicial review of an agency action without having served the Attorney General of Indiana, as required by the Indiana Administrative Orders and Procedures Act (“AOPA”), we conclude the trial court did not have personal jurisdiction and therefore could not enter an order directing BMV to issue Watson a chauffeur’s license. We therefore reverse the trial court’s denial of BMV’s motion to correct error and vacate its order directing BMV to issue Watson a chauffeur’s license. * * *

Although labeled otherwise, we conclude Watson’s Motion to Issue a Valid Driver’s License Credential effectively asked the trial court to engage in judicial review of an agency action. As such, Watson was required to comply with AOPA and serve the Attorney General, which he failed to do. Absent valid service upon the Attorney General, the trial court lacked personal jurisdiction to order BMV to issue a chauffeur’s license to Watson. Accordingly, we reverse the trial court’s denial of BMV’s motion to correct error and vacate its order directing BMV to issue Watson a chauffeur’s license. Reversed and vacated.

NFP civil decisions today (2):

Keith Krzeminski v. James Carr and Renee Carr (mem. dec.)

In re the Paternity of Stephenie Buck Elizabeth (Buck) Tyler v. Steven Vetor (mem. dec.)

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on Monday, January 23, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Who is who in state government - a must-have chart [now with chart]

"Holcomb opts for team of veterans" is the headline to this story by Hayleigh Colombo in the latest issue of IBJ. The paper issue, on the newstands now, has a "must have" full-page chart showing all the Holcomb appointees (cabinet and agency heads), their salaries, and whether they also served in the Pence or Daniels administrations.

[Updated 1/24/17] The "must have" @IBJnews chart is now accessible here.

Posted by Marcia Oddi on Monday, January 23, 2017
Posted to Indiana Government

Courts - "Manager says he was forced to take classes in Scientology"

Stuart Hirsch reports in the Anderson Herald-Bulletin in a story today that begins:

ANDERSON — A local businesswoman is under fire for alleged religious discrimination and unlawful retaliation, wrongful discharge, and breach of contract in her dealings with two former employees.

Those allegations are the basis of a lawsuit filed against Judy Nagengast last week in the Darke County (Ohio) Court of Common Pleas Civil Division by Paul and Chelsea Wysong, of Palestine, Ohio.

Nagengast is the president and chief executive officer of Anderson-based Continental Design Co. Inc., which operates several business divisions including staffing, quality control, and specialty LED lighting.

Wysong joined the company working as a quality control manager in July 2016, according to the legal compaint; his wife, Chelsea, began working for the company in October 2014. Both were fired Dec. 29.

Wysong earned $80,000 per year, plus certain bonuses and commission on sales.

According to the complaint, “he was required by Ms. Nagengast to participate in Scientology religious practices, such as audits, made to partake in Scientology training, was given numerous pieces of Scientology literature and instructed to attend Scientology courses at locations in California, Indiana and Florida.”

The Wysongs, who identified themselves as Christians, said in the complaint, “Ms. Nagengast’s conduct in imposing her religion of Scientology on Mr. Wysong was unwelcome and created a hostile work environment for Mr. Wysong.”

Posted by Marcia Oddi on Monday, January 23, 2017
Posted to Courts in general

Ind. Decisions - Transfer list for week ending Jan. 20, 2017

Here is the Clerk's transfer list for the week ending Friday, January 20, 2017. It is two pages (and 25 cases) long.

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

In addition, there were three cases last week where transfer was denied by a 3-2 vote:

Posted by Marcia Oddi on Monday, January 23, 2017
Posted to Indiana Transfer Lists

Ind. Courts - "Rucker hopes Supreme Court successor will be voice for the voiceless"

That is the headline to a story this weekend by Dan Carden of the NWI Times. Some quotes:

Retiring Indiana Supreme Court Justice Robert Rucker has no specific person in mind to replace him later this year on the state's highest court.

But Rucker said Thursday that he favors both "diversity" and "independence of thought" in judicial selection, and hopes his successor will be well-qualified and have "some amount of life experience that gives voice at a table where oftentimes voices are not heard."

The longest-serving current justice and sole African-American on the five-member Supreme Court confirmed Wednesday that he plans to leave the bench sometime this spring, after hearing one of his final oral arguments March 9 at his alma mater, Gary Roosevelt High School.

Posted by Marcia Oddi on Monday, January 23, 2017
Posted to Indiana Courts

Courts - Emoluments Clause challenge, brought by topnotch legal team [Updated]

"Foreign Payments to Trump Firms Violate Constitution, Suit Will Claim" is the headline to a NY Times story this morning reported by Eric Lipton and Adam Liptak that begins:

WASHINGTON — A team of prominent constitutional scholars, Supreme Court litigators and former White House ethics lawyers intends to file a lawsuit Monday morning alleging that President Trump is violating the Constitution by allowing his hotels and other business operations to accept payments from foreign governments.

The lawsuit is among a barrage of legal actions against the Trump administration that have been initiated or are being planned by major liberal advocacy organizations. Such suits are among the few outlets they have to challenge the administration now that Republicans are in control of the government.

[Updated] Copy of 39-page complaint, filed 1/23/17.

Posted by Marcia Oddi on Monday, January 23, 2017
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 1/23/17):

Next week's oral arguments before the Supreme Court (week of 1/30/17):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/23/17):

Monday, January 23 Tuesday, January 24

Next week's oral arguments before the Court of Appeals (week of 1/30/17):

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

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


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

Posted by Marcia Oddi on Monday, January 23, 2017
Posted to Upcoming Oral Arguments

Friday, January 20, 2017

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (3):

In Kevin T. Williams v. Unifund CCR, LLC, a 10-page opinion, Judge Riley writes:

Appellant-Defendant, Kevin T. Williams (Williams), appeals the trial court’s judgment in favor of Appellee-Plaintiff, Unifund CCR, LLC (Unifund), on Unifund’s Complaint against Williams for nonpayment of credit card debt. We reverse. * * *

[Issue] Whether the evidence admitted at trial supports Unifund’s claim. * * *

Based on the totality of the evidence before us, Unifund failed to satisfactorily establish that it owns Williams’ account and is entitled to collect the debt associated with it.

Based on the foregoing, we hold that the trial court abused its discretion by entering judgment in favor of Unifund. Reversed.

In Christopher Johnston v. State of Indiana, a 10-page opinion, Judge May writes:
Christopher Johnston appeals the qualification of State’s expert called to discuss forensic analysis of social media records and digital trails, and the admission of that expert’s opinion regarding the statistical probability of multiple Facebook accounts belonging to people other than Johnston. We affirm. * * *

The trial court did not abuse its discretion in qualifying Sergeant Schafer as an expert, and Johnston has not demonstrated fundamental error in the admission of Sergeant Schafer’s Polar Bear Analogy. Accordingly, we affirm Johnston’s convictions.

In Wiley W. Walters, Jr. v. State of Indiana, a 12-page opinion, Judge May writes:
Wiley W. Walters, Jr. appeals his convictions for two counts of Level 1 felony child molest and two counts Level 4 felony child molest. Walters raises two issues, which we restate as:
1. Whether the court abused its discretion in allowing hearsay testimony pursuant to the exception for statements made for medical diagnosis or treatment, and
2. Whether his fifty-year sentence was inappropriate.
We affirm.
NFP civil decisions today (0):

NFP criminal decisions today (4):

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

Jerry D. Vest v. State of Indiana (mem. dec.)

Anthoni C. Thornburgh v. State of Indiana (mem. dec.)

Geoffrey Quarles v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, January 20, 2017
Posted to Ind. App.Ct. Decisions

Thursday, January 19, 2017

Ind. Decisions - "Supreme Court justices doubt 'indisputable' video of South Bend man's arrest"

This morning the Supreme Court heard oral argument in the case of Royce Love v. State of Indiana. By a vote of 2-1, a Court of Appeals panel had concluded that video evidence indisputably contradicted police officer testimony about the events underlying the convictions. The South Bend Tribune covered the case, reporting the objections of the police and prosecutor.

This afternoon, Christian Sheckler of the South Bend Tribune reports in a long story, with the dash-cam video, that begins:

Supreme Court justices Thursday rejected the notion that a South Bend police dash-cam video "indisputably" contradicted officers' testimony about a 2013 arrest, as the lower Indiana Court of Appeals ruled earlier this year.

The Supreme Court justices raised their doubts during oral arguments in the case of Royce Love, a South Bend man who was convicted of two counts of resisting law enforcement and one count of mistreating a police animal before the appellate court reversed two of convictions in September.

The state attorney general's office asked the Supreme Court to review the appellate court's decision, which state lawyers described as an overreach.

In the appeals court's decision, a majority of a three-judge panel found that officers used unreasonable force by deploying a Taser and dog on Love even though he appeared to surrender and get on the ground after a car chase.

Several police officers said Love resisted and refused to surrender, but the appellate court majority said the dash-cam video indisputably showed the officers' statements were inaccurate.

The Supreme Court is considering two questions: Whether the video evidence was indisputable and, if so, to what extent that evidence allows the appellate courts to intrude on a jury's right to weigh and judge the evidence at trial.

On Thursday, several Supreme Court justices expressed doubt on both questions.

"What I saw was grainy, vague, dark — I couldn't discern what was going on," Justice Robert Rucker said as he pressed Love's attorney, Jeff Kimmell, on his position. "Couldn't a jury also decide whether or not it's indisputable and weigh that in favor of what the officers said?"

Kimmell responded that the visible portions of the video provided ample evidence that Love was on the ground before he was stunned and attacked by the dog. * * *

There is no timetable for the Supreme Court's decision.

Here is today's oral argument.

Posted by Marcia Oddi on Thursday, January 19, 2017
Posted to Ind. App.Ct. Decisions

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

For publication opinions today (3):

In Dermatology Associates, P.C. and Sonya Campbell Johnson, M.D. v. Elizabeth C. White v. Commissioner of Indiana Department of Insurance, and Douglas J. Hill, Esq., Medical Review Panel Chair, a 21-page, 2-1 opinion, Judge Robb writes:

On September 7, 2012, Elizabeth White visited Dr. Sonya Campbell Johnson at Dermatology Associates, P.C. (collectively, the “Providers”), for laser hair removal on her face. Due to a reaction between the makeup White was wearing and the treatment, part of White’s face was burned and remained discolored thereafter. In 2013, White filed a complaint for medical negligence against the Providers directly with the trial court, seeking damages in an amount not greater than $15,000 for her injury. Later, White moved to dismiss that complaint. The trial court granted the motion to dismiss without prejudice, and on November 18, 2014, White filed a proposed complaint with the Indiana Department of Insurance. The Providers filed a petition for preliminary determination and a motion for summary judgment alleging White failed to timely file her claim with the Department of Insurance. The trial court denied the motion for summary judgment but certified its order for interlocutory appeal. The Providers raise one restated issue for our review: whether the trial court erred in denying their motion for summary judgment. Concluding the statute of limitations bars White’s action and the Providers are entitled to judgment as a matter of law, we reverse. * * *

The facts of this case are not in dispute. The Providers have shown that White did not file her proposed complaint with the Department of Insurance within two years of her action accruing. White in turn has failed to establish she is entitled to the benefit of Indiana Code sections 34-18-8-6(c) and 34-18-7-1(c) extending the statute of limitations in certain circumstances. Section 34-18-8- 6(c) imposes certain requirements on the ability to benefit from the extended time to file a medical negligence action, and White has failed to meet those requirements. White had every right to dismiss and refile her cause of action in order to seek additional damages, but under these facts, she needed to do so within the two-year statute of limitations.

Conclusion. The Providers are entitled to judgment as a matter of law on their motion for summary judgment alleging White’s proposed complaint was filed with the Department of Insurance outside the applicable statute of limitations. The trial court’s denial of the motion is reversed.

Brown, J., concurs. Mathias, J., dissents. [with an opinion that begins, on p. 18] I respectfully dissent. The majority’s explanation of the statutory framework of the issue before us is commendable. I disagree only with the majority’s interpretation of this statutory framework. * * *

The majority concludes that White failed to allege that she learned anything new or different about her injury after filing her original complaint. However, she averred that the discoloration still remained. Thus, because the discoloration had still not improved, White came to the personal conclusion that a lifetime of facial disfiguration was worth more than $15,000. In terms of the statute, White “learned” that her claim, based upon her permanent facial disfiguration, was worth more than $15,000. Under the facts and circumstances before us, I think a woman’s ultimate decision that a lifetime of facial disfiguration was worth more than $15,000 is something she could, and here did, “learn” from looking into the mirror every day, trying without success to use make-up to make the scarring less noticeable. I believe this alone is sufficient to trigger the 180-day extension provided for by Indiana Code section 34-18-7-1(c).

Accordingly, I would affirm the trial court’s denial of the Provider’s motion for summary judgment.

In George S. Fischer v. Jennifer M. Fischer , a 16-page opinion, Judge Robb writes:
Jennifer Fischer filed for dissolution of her marriage to George Fischer on October 30, 2014. The trial court held a final hearing on August 27, 2015, and issued an order dissolving the marriage on November 23, 2015. George appeals the dissolution decree, raising two issues for our review, which we consolidate and restate as one: whether the trial court abused its discretion in dividing the value of certain stock options as part of the marital estate. Concluding the value of the stock options at issue are not properly included in the marital estate, we reverse and remand. * * *

Because the stock options at issue vested after the date of the parties’ final separation, they should not have been included in the marital estate as an asset subject to division. Accordingly, we reverse the trial court’s order in this respect and remand for further proceedings consistent with this opinion.

In Daniel Ray Holloway v. State of Indiana, a 14-page opinion, Judge Pyle writes:
Daniel Ray Holloway (“Holloway”) appeals his convictions, received following a jury trial, for Class B felony dealing in methamphetamine, Class D felony maintaining a common nuisance, and Class D felony possession of chemical reagents or precursors. At trial, the trial court admitted, over Holloway’s objection, evidence of items used in methamphetamine manufacturing that investigators had discovered during a warrantless search of Holloway’s car. On appeal, Holloway argues that the trial court abused its discretion in admitting this evidence because the search that produced it violated his right to privacy under the United States and Indiana Constitutions. We conclude that the trial court did not abuse its discretion because the exigent circumstances exception to the prohibition against warrantless searches under the United States Constitution applied, and the search was reasonable under the Indiana Constitution. We affirm.
NFP civil decisions today (1):

In the Term. of the Parent-Child Relationship of: G.C., A.R., and B.R. (minor children); E.R. (mother) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (2):

Rebecca Michelle Mason v. State of Indiana (mem. dec.)

Amy Morinskey v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, January 19, 2017
Posted to Ind. App.Ct. Decisions

Courts - "SCOTUS Justices Appear Willing to Protect Offensive Trademarks"

Adam Liptak reports today in the NY Times on yesterday's SCOTUS oral argument in Lee vs. Tam. The story begins:

WASHINGTON — The Supreme Court on Wednesday appeared deeply skeptical about the constitutionality of a federal law that denies protection to disparaging trademarks. Almost every member of the court indicated that the law was hard to reconcile with the First Amendment.

The court’s decision in the case, concerning an Asian-American dance-rock band called the Slants, will probably also effectively resolve a separate one in favor of the Washington Redskins football team.

Robert Barne's story in the Washington Post takes a similar tack, the headline is "Can disparaging trademarks be denied? The Supreme Court is skeptical."

"Asian American band the Slants takes its trademark battle to the Supreme Court: Is it free speech or a racial slur?" is rthe headline to David G. Savage's story in the LA Times.

Posted by Marcia Oddi on Thursday, January 19, 2017
Posted to Courts in general

Ind. Gov't. - AG Hill joins lawsuit against Office of Surface Mining Reclamation and Enforcement

According to a press release (h/t EagleCountyNews), Attorney General Curtis Hill:

... today announced Indiana’s participation with 11 other states in a lawsuit against the U.S. Office of Surface Mining. The lawsuit alleges that regulations set in place by that office’s new Stream Protection Rule violate the Surface Mining Control and Reclamation Act, and thereby represent serious policy overreach by the federal government.
Here is a copy of the 52-page complaint, filed 1-17-17 in the U.S. District Court for the District of Columbia. Twelve states are signatories.

Posted by Marcia Oddi on Thursday, January 19, 2017
Posted to Indiana Government

Ind. Law - "Limiting Damages Through Evidence of Medical Write-Downs"

Here is an interesting article in The National Law Review, authored by Kara Kapke of Barnes & Thornburg that begins:

What a medical provider lists as the charge for a particular service often bears no relationship to the actual amount paid by the patient or his insurer. Both private and government insurers negotiate with the medical providers to pay less than the “listed charge” for services, resulting in medical “write-downs” of expenses. Can a tort victim recover the listed charge as damages, or should the plaintiff be limited to recovering only those amounts actually paid? Both courts and state legislatures have taken up the issue.

Indiana is a leading state in suggesting that a plaintiff may be limited to recovering only those amounts actually paid, as court decisions have allowed evidence of medical write-downs. In October 2016 in Patchett v. Lee, the Indiana Supreme Court re-affirmed its decision in Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009), concluding that reduced reimbursements are admissible evidence, even when a government provider negotiates or mandates the discount. In his first majority opinion for the court, Indiana Supreme Court Justice Geoffrey Slaughter provided a history of case law involving medical write-downs in the decision, noting that Delaware, Texas, California and Kansas allow evidence of the discounted amount paid to prove reasonable value of medical services.

Posted by Marcia Oddi on Thursday, January 19, 2017
Posted to Indiana Law

Ind. Decisions - "SBT Opinion: Appeals court ruling holds Pence to open records law"

That is the heading to an editorial this week in the South Bend Tribune:

Last week’s ruling from the Indiana Court of Appeals was, at first glance, a win for former Gov. Mike Pence.

The court ruled that Pence’s staff appropriately withheld and redacted several documents in a public records dispute in a case brought by an Indianapolis attorney who sued the Pence administration after it denied his request for a document related to efforts of Republican governors to stop President Barack Obama’s immigration executive order.

But the court didn’t buy the governor’s larger argument that his responses to requests under the state’s Access to Public Records Act are exempt from judicial review.

In short, that’s good news for advocates of transparency, who had reason to fear that a victory for Pence on this critical question could set a dangerous precedent — one basically allowing other governors to refuse to disclose public documents with no government oversight.

The argument used by Pence lawyers mirrors one successfully used in a case involving the release of lawmaker email communications with lobbying groups and businesses. In that case, the state Supreme Court ruled that although Indiana legislators are subject to the state’s public access law, ordering the release of lawmaker email communications with lobbying groups and businesses violates the state constitution’s separation of powers between the legislative and judicial branches of government.

Fortunately, the court didn’t buy Pence lawyers’ claim that “Just as the judiciary should not ‘intermeddle’ with the legislature’s determination of what constitutes its own work product, the judiciary should not ‘intermeddle’ with the executive’s determination of what constitutes its own work product, deliberative material, or privileged material.”

According to the court, this argument “would, in effect, render APRA meaningless” as applied to the governor and his staff. “APRA does not provide for any such absolute privilege, and the separation of powers doctrine does not require it. We reject the Governor’s assertion that his ‘own determinations’ regarding whether to disclose public records are not subject to judicial review.”

The decision is a critical one for transparency in a case that the former governor, a self-described advocate of open government, never should have made in the first place.

ILB: For background, start with this Jan. 12th post headed "More on COA opinion in Groth v. State."

Posted by Marcia Oddi on Thursday, January 19, 2017
Posted to Ind. App.Ct. Decisions | Indiana Government

Ind. Courts - More on Justice Rucker's retirement

"Rucker to retire from Indiana Supreme Court" was the heading to Dan Carden's story yesterday in the NWI Times.

"Indiana's sole minority Supreme Court Justice to retire this year" reads the headline to Fatima Hussein's story this morning in the Indianapolis Star.

Posted by Marcia Oddi on Thursday, January 19, 2017
Posted to Indiana Courts

Ind. Courts - 2017-2018 Marion Superior Court Executive Committee Elected

From the press release yesterday:

On January 17 2017, the General Term of the Marion Superior Court elected its new Executive Committee for the 2017-2018 Term. Judge Timothy Oakes was elected to serve as the Presiding Judge. Judge Sheila Carlisle, Judge Christina Klineman and Judge Heather Welch will join him on the Executive Committee as Associate Presiding Judges.

About the Marion Superior Executive Committee

The Executive Committee is comprised of four judges: one Presiding Judge and three Associate Presiding Judges, who are responsible for the operation and conduct of the Court.

About Judge Timothy Oakes

Judges Oakes has served the Marion Superior Court since 2009. He currently presides over Civil Court 2. Prior to his time on the bench, Oakes served as a Deputy Prosecutor, private practitioner and legislative lobbyist. Oakes has served the Court as a Legislative Liaison, Commissioner/Magistrate Taskforce, IT Committee, Ethics Committee, Court Reporter Committee, Building and Facilities Committee, and Library Committee. Oakes currently serves on the Committee on Character and Fitness for the State Board of Law Examiners. In addition to his service to the Courts, Oakes has served in leadership roles with the Indianapolis Bar Association, the Indiana Judges Association, and the Inns of the Court as well as adjunct professor roles with McKinney Law School and IUPU-SPEA.

About Judge Sheila Carlisle

Judge Carlisle has served the Marion Superior Court since 2001. She currently presides over Criminal Court 3. Prior to her time on the bench, Carlisle served as a Deputy Prosecutor, Chief Deputy Prosecutor and Chief Trial Deputy in Johnson and Marion counties. She has previously served the Court as the Criminal Term Chair, member of the Commissioner/Magistrate Taskforce, Court Reporter Committee, Ethics Committee and Criminal Local Rules Committee. She has served at the state level on the Judicial Conference Board of Directors, Jury Committee and Criminal Instructions Committee. Carlisle currently serves on the Character and Fitness Committee for the State Board of Law Examiners, the Criminal Law Policy Committee, and the Board of Managers for the Indiana Judges Association. Carlisle was appointed in 2016 to the Mayor’s Task Force on Criminal Justice Reform.

About Judge Christina Klineman

Judge Klineman joined the Court in 2015. She currently presides over Criminal Court 17. Klineman previously served as a commissioner for the Court in the criminal and civil divisions from 2009-2014. She has served the Court as the Arrestee Processing Center Advisory Judge and a member of the Commissioner/Magistrate Taskforce. She currently serves on the Judicial Administration Committee for the Indiana Supreme Court and is a member of the Mayor’s Criminal Justice Reform Taskforce. She has previously held leadership roles at the Indianapolis Bar Association.

About Judge Heather Welch

Judge Welch joined the Court in 2007. She currently presides over Civil Court 1 and one of the six Indiana Commercial Court Pilot Project Courts. Welch previously served as a commissioner for the Court from 2001-2006. She has previously served the Court as the Civil Term Chair, Budget Committee Chair, member of the Ethics Committee and Legislative Liaison. She is also member of the Mayor’s Criminal Justice Reform Taskforce.

Posted by Marcia Oddi on Thursday, January 19, 2017
Posted to Indiana Courts

Ind. Courts - Justice Rucker announces spring 2017 retirement; applications available, due March 3

The Supreme Court announces this morning:

Indiana Supreme Court Justice Robert D. Rucker will step down from the bench in the spring of 2017 after 26 years on the bench. He is Indiana's 105th Supreme Court justice. Rucker said, "It has been an honor to serve Hoosiers for a quarter century." Justice Rucker will be available for media interviews today (January 19) at the State House in the Law Library (room 316) at 11:15 a.m. EST. * * *

The exact date Justice Rucker will step down from the bench in spring 2017 is not yet known. The Judicial Nominating Commission will search for a successor to fill the vacancy; applications for the position are available on the Court's website at courts.in.gov/jud-qual/3306.htm and are due March 3, 2017.

ILB: See this ILB post from yesterday ...

Posted by Marcia Oddi on Thursday, January 19, 2017
Posted to Courts in general | Vacancy on Supreme Court - 2017

Ind. Gov't. - Former IDEM head to lead Missouri's Department of Natural Resources [Updated]

The Daily Progress today carries an AP story by Katie Kull that begins:

JEFFERSON CITY, Mo. (AP) — Gov. Eric Greitens has chosen the commissioner of Indiana's Department of Environmental Management to lead Missouri's Department of Natural Resources.

Carol Comer will be the newest addition to Greitens' Cabinet. She worked under Indiana Gov. Mike Pence, who will be sworn in as vice president Friday.

A video posted Wednesday to Greitens' Facebook and Twitter accounts showed the governor standing by Comer in front of the Missouri River. Comer touted her success in partnering Indiana's environmental department with economic organizations to promote business and investment.

"I'm looking forward to doing the same thing here in Missouri so that we can protect the air and the land and the water quality, but still encourage economic growth," she said on the video.

[Updated at 1:00 pm] Here is a more detailed story, from Celeste Bott of the St. Louis Post-Dispatch. It includes a video announcement. From the story:
Comer, who stood beside Greitens for the announcement, said in Indiana, the Department of Economic Development partnered with the Department of Environmental Management to create jobs and attract businesses and investment.

"I'm looking forward to during the same thing in Missouri, so that we can protect the air and the land and the water quality, but still encourage economic growth, so that everybody prospers," she said. * * *

Comer was rumored to have been on President-elect Donald Trump's shortlist to lead the Environmental Protection Agency, before Greitens' announcement on Wednesday. Pence, her former boss, campaigned for Greitens during his gubernatorial bid.

Posted by Marcia Oddi on Thursday, January 19, 2017
Posted to Indiana Government

Wednesday, January 18, 2017

Ind. Gov't. - Attorney General Hill Announces Staff Appointments

From the news release:

Leading Hill’s executive staff is Aaron Negangard, who has been appointed Deputy Chief, serving as second in command. Negangard was the Dearborn-Ohio County Prosecutor since 2006 before joining Hill’s staff.

Joan Blackwell
will serve as Hill’s Chief of Staff. Blackwell served as section chief in the Office of the Attorney General from 2014 to 2016, and most recently worked as an attorney at the law firm of Barnes and Thrornburg. Rounding out Hill’s executive staff is Kelly Craven, who will work as Hill’s Senior Advisor during his first term. Craven was a Deputy Assistant Secretary of the Air Force in the George W. Bush Administration, and served as the Chief of Staff for Indiana congressman Steve Buyer, before most recently serving as the Director of House Operations for Speaker Paul Ryan.

Hill’s communications staff will be led by Jeremy Brilliant, an award-winning journalist who spent more than 10 years as a TV reporter in Indianapolis, most recently working for the city’s NBC affiliate. Brilliant was hired this week as the Director of Communications, and will handle media relations, as well as public outreach for the Hill administration.

A strong group of employees throughout the Office of the Attorney General will work with these key posts, forming an extremely talented staff that will help Hill serve with bold, courageous leadership. Several of the office’s most invaluable positions have been filled. Mary Allen will fill the role as Director of Strategic Planning and Resources. Allen is the former director of the Indiana Criminal Justice Institute where she led the state’s criminal justice policy and planning agency.

Former Marion County Prosecutor Scott Newman joins Hill’s staff as Chief Counsel in the Advisory Division, while Denise Robinson will work as the Senior Deputy Attorney General. Robinson most recently served at the Marion County Prosecutor’s Office. Patricia McMath left her role as Appellate Public Defender at the Marion County Public Defender Agency to join Hill’s staff as the Section Chief of Civil Appeals.

Posted by Marcia Oddi on Wednesday, January 18, 2017
Posted to Indiana Government

Ind. Courts - Expect announcement soon that applications are available for upcoming Supreme Court vacancy

Based from the past process, look for the announcement any day now.

Timing on most recent vacancy, occasioned by the retirement of Justice Dickson:

Posted by Marcia Oddi on Wednesday, January 18, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Courts - Justice Rucker's retirement date likely will be sometime in March

Chief Justice Loretta Rush, in the annual State of Judiciary address this afternoon, announced that Justice Robert D. Rucker would participate in his final oral argument March 9th, in Gary, Indiana.

Posted by Marcia Oddi on Wednesday, January 18, 2017
Posted to Indiana Courts | Vacancy on Supreme Court - 2017

Ind. Decisions - Still more on: Federal Judge Barker decides GEFT challenge to Indianapolis digital sign prohibition

Updating this Jan. 11th ILB post, Hayleigh Colombo of the IBJ reported on Jan. 12th in a story that begins:

Despite a new court settlement that allows billboard company GEFT Outdoor LLC to operate two digital billboards in Indianapolis, the ruling doesn’t appear to open the floodgates to others hoping for the same outcome.

City officials say GEFT had a unique case that wouldn’t apply to the several other billboard companies that have been hoping to get past the city’s ban on digital billboards.

"The court’s order turns on state-law claims reviewing specific variance denials and has no effect beyond the specific signs at issue,” said Donald Morgan, the city’s chief litigation counsel. * * *

Digital billboards are still banned. “They sued under the old ordinance,” said Republican Council member Jeff Miller. “This does not invalidate our ordinance. No one else can sue and [get a digital] billboard for the same reasons. That was a big relief to me.”

Posted by Marcia Oddi on Wednesday, January 18, 2017
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (3):

In The Estate of Gary Pfafman v. Lori Lancaster, Individually, and as Guardian of the Estate of Kole Craig, a 34-page opinion (with a concurring opinion), Judge Najam writes:

The Estate of Gary Pfafman (“Pfafman’s Estate”) appeals the trial court’s grant of a new trial following a jury verdict in favor of the Estate on a complaint filed by Lori Lancaster, Individually and as Guardian of the Estate of Kole Craig (“Craig’s Estate”). Pfafman’s Estate presents two issues for our review, one of which is dispositive, namely, whether the trial court complied with the requirements of Indiana Trial Rule 59(J) when it ordered a new trial on the grounds that the verdict was against the weight of the evidence and that the evidence was insufficient to support the jury’s verdict. We reverse. * * *

In sum, despite its length,17 the trial court’s order omits any meaningful analysis of the evidence, including testimony by Craig’s Estate’s own expert witnesses, that Diehm and Farm Innovators proximately caused Craig’s injuries. While the trial court’s findings include a list of some of that evidence regarding the nonparties’ negligence, the court did not explain in its conclusions why that evidence would not support a jury’s allocation of fault to one or both of the nonparties with none to Pfafman’s Estate. We hold that the trial court’s findings and conclusions are not based on a complete analysis of the law and facts, see T.R. 59(J), and the court did not make “a clear showing that the ends of justice required” a new trial. Walker, 943 N.E.2d at 352. When a court grants a new trial without making sufficiently specific findings, the remedy on appeal is to reinstate the jury verdict. Id. at 353. Because the trial court’s findings are insufficient here, we reinstate the jury’s verdict.

Conclusion. The trial court’s findings and conclusions in granting Craig’s Estate’s motion for a new trial are insufficient under Trial Rule 59(J). The trial court did not relate the evidence of the nonparties’ negligence to the issue of comparative fault under the Act, but erroneously concluded that Pfafman’s conduct was the sole cause of Craig’s injuries. And the trial court did not address the possibility that the jury allocated 100% fault to Diehm and/or Farm Innovators despite the lack of an intervening cause. Given the evidence that there were several but-for causes of Craig’s injuries attributable to the nonparties, the jury was entitled to allocate 100% fault to one or both of the nonparties and 0% to Pfafman. Accordingly, we reverse the trial court’s order and reinstate the jury’s verdict in favor of Pfafman’s Estate. Reversed.

Baker, J., concurs.

Vaidik, C.J., concurs in result with separate opinion. [that begins at p. 29] The trial court erred in finding as a matter of law that Pfafman proximately caused Craig’s injuries. Therefore, I concur in the result and would reinstate the jury’s verdict. But, I respectfully disagree with the majority that a jury is allowed to find an actor proximately caused an injury, yet decline to allocate a percentage of fault to that actor.

In Elberta N. Jackson v. State of Indiana , a 13-page opinion, Judge Riley writes:
Jackson raises two issues on appeal, which we restate as follows:

(1) Whether the State presented sufficient evidence to support Jackson’s conviction for operating a vehicle with an ACE to at least 0.15 beyond a reasonable doubt; and

(2) Whether Jackson’s due process rights were violated by the imposition of a two-year administrative driver’s license suspension. * * *

Based on the foregoing, we conclude that there is sufficient evidence to support Jackson’s conviction for operating a vehicle with an ACE to at least 0.15, and we further conclude that Jackson’s due process rights were not violated.

In Jeremiah Edward Ericksen v. State of Indiana , a 12-page opinion, Judge Riley writes:
On November 11, 2015, officers conducting surveillance on Ericksen witnessed him putting a black bag, a “possible gun case type thing,” inside the trunk of a black Jaguar, which was registered to Marilyn Ericksen (Marilyn). * * *

To convict Ericksen of carrying a handgun without a license as a Level 5 felony, the State was required to establish beyond a reasonable doubt that Ericksen did knowingly or intentionally carry a handgun in or upon his vehicle or person without a license in his possession after he had already been previously convicted for carrying a handgun without a license. * * *

Focusing on the “carry” element of the offense, Ericksen argues that “there is no evidence that [Ericksen] ‘carried’ the handgun.” (Appellant’s Br. p. 13). In essence, Ericksen claims that because the statute requires a person to be carrying, rather than possessing a handgun, constructive possession is not an appropriate analysis to find a defendant guilty of carrying a handgun without a license. * * *

Based on the foregoing, we hold that the State presented sufficient evidence beyond a reasonable doubt to support Ericksen’s conviction for carrying a handgun without a license; and the trial court tendered a proper jury instruction on the charge of carrying a handgun without a license.

NFP civil decisions today (3):

State of Indiana v. David Biela, Gregory Czizek, James Liverman, and Stanley Mazur (mem. dec.)

In the Matter of: L.B., C.L., B.L., G.L., M.L., and T.L. Children in Need of Services, C.B. and T.B. v. Indiana Department of Child Services (mem. dec.)

County Motors, LLC, and Thomas Kouttoulas v. Clarence Russell, Jr., and Angela Sullivan (mem. dec.)

NFP criminal decisions today (4):

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

John Paul Garcia v. State of Indiana (mem. dec.)

Wallace Briscoe v. State of Indiana (mem. dec.)

Isaiah Levert Hughes v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, January 18, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on "Ind. Decisions - Supreme Court issued disciplinary opinion re Keith Henderson"

Updating this ILB post from Jan. 13th, Madeline Winer reports today in the Louisville Courier-Journal, in a story headed "David Camm prosecutor slapped for misconduct," that begins:

Floyd County Prosecutor Keith Henderson has received a public reprimand from the Indiana Supreme Court for his "misconduct" while prosecuting the David Camm triple-murder trial, court documents show.

The decision, filed last week, says Henderson's misconduct "adversely affected the administration of justice" in the Camm case. But with his "distinguished career as a public servant" and his actions being limited to one case, the court strayed from suspending him from practicing law, court documents show. Henderson has served as Floyd County prosecutor since 2003.

Henderson declined to comment on the court's findings.

The story concludes:
The decision issued by the Supreme Court said Henderson violated professional rules of conduct because his duties to the state conflicted with his personal interests. The court did not find evidence that Henderson misled Floyd County officials when he asked for reimbursement of his attorney fees used to litigate the complaint, leading officials to believe the fees were tied to the case instead for defending himself personally against potential disciplinary charges.

After the disciplinary commission suggested Henderson be suspended, he lost the race for Floyd County Circuit Court Judge against longtime incumbent J. Terrance Cody in November's election.

Henderson dismissed his ethics complaint in an interview before last year's election with the Courier-Journal and said he pitched writing the book because he thought the community needed to know about the "biggest case in county history."

Posted by Marcia Oddi on Wednesday, January 18, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on "Carmel cracks down on homeowners listing their property on Airbnb"

Updating this ILB post from earlier today, Niki Kelly of the Fort Wayne Journal Gazette reports today on yesterday's hearing on HB 1133, in a story headed "Bill would allow short-term rentals: Property owners use online sites to lease rooms, homes." Some quotes:

INDIANAPOLIS – Cities and towns in the state wouldn’t be allowed to ban short-term rentals found on websites like Airbnb under a bill heard by state lawmakers Tuesday.

Rep. Matt Lehman, R-Berne, said he is trying to find the balance between protecting home rule and the rights of Hoosiers to use their property as they see fit.

“This is an attempt to thread that needle,” he said. “We want to allow this emerging technology to continue.”

Lehman said House Bill 1133 doesn’t strip local control from local governments, though those who testified on the bill said it’s a basic preemption bill. * * *

Fort Wayne has 56 rentals currently available on Airbnb.

A number of cities in other states have banned short-term leasing while some have added inspection and permit fees. Indianapolis has taken a permissive approach but recently Bloomington considered an ordinance cracking down on short-term rentals.

Lawmakers suggested several times during the meeting that this is about allowing people to rent their homes for the Super Bowl or the Final Four, but a Carmel couple told of a different side of the technology.

Shannon and David Minac said owners three doors down from them specifically bought the house to use year-round as online rental lodging. The homeowners don’t live there and people are continuously coming and going.

They expressed concern about there not being background checks and sex offenders being able to rent.

Committee Chair Kevin Mahan, R-Hartford City, said hotels don’t do background checks either.

The Minacs expressed concern that they are running a business in a residential neighborhood setting and said the city of Carmel is issuing cease-and-desist letters this week to some homeowners.

Posted by Marcia Oddi on Wednesday, January 18, 2017
Posted to Indiana Government

Ind. Courts - State of the Judiciary address today at 2 pm

Indiana Chief Justice Loretta H. Rush will address the Governor and a joint session of the Indiana General Assembly for the annual State of the Judiciary. Learn more here.

You may watch the address live.

Posted by Marcia Oddi on Wednesday, January 18, 2017
Posted to Indiana Courts

Environment - "Trump’s nominee to head EPA has opposed the Chesapeake Bay cleanup"

And so has Indiana. In fact, Indiana did not merely sign on to the amicus brief, Indiana was one of three co-authors of the brief.

From Darryl Fears story today in the Washington Post:

Oklahoma is 1,400 miles from the entrance of the Chesapeake Bay at Havre de Grace, Md., halfway across the country. But the distance didn’t matter to Oklahoma’s attorney general, Scott Pruitt, after the Environmental Protection Agency drew up a plan to clean the polluted bay. He tried to stop it.

Pruitt was one of 21 state attorneys general who signed an amicus brief opposing the largest cleanup of a water body in U.S. history. The brief supported a federal lawsuit filed by the American Farm Bureau Federation and the Pennsylvania Farm Bureau that claimed the EPA usurped the power of states in the watershed to regulate pollution that flows into the bay from cities and farms.

Pruitt is now President-elect Donald Trump’s nominee to run the EPA, the agency that Pruitt has railed against, suing it more than a half-dozen times over regulations on clean water and clean air that he disagreed with.

The story links to a Feb. 5, 2014 WAPO story by the same reporter, headed "From Alaska to Florida, attorneys general join fight to end Chesapeake Bay cleanup." Snippets:
State attorneys general, most of them Republicans, from as far as Alaska and Montana joined the American Farm Bureau Federation in its fight to prevent the Environmental Protection Agency from carrying out its plan to clean up the nation’s largest estuary. Impaired waters have led to fish-killing dead zones and other marine life die-offs for decades. * * *

The 21 states were described as geographically varied, but they were solid in their opposition to President Obama in the 2012 election, with the president taking only Michigan and Florida.

The other states are Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.

In fact, as the ILB wrote on Feb. 26, 2014: "AG Zoeller co-author[ed] amicus brief challenging Chesapeake Bay cleanup." A quote:
Although Attorney General Zoeller is concerned about Asian Carp in the Wabash, he is challenging a plan crafted by US EPA and the Chesapeake Bay watershed states to save the Bay.

Zoeller, on behalf of the State of Indiana, joined the states of Missouri and Kansas as authors of an amicus brief supporting the plaintiffs in a case in the Third Circuit: American Farm Bureau Federation, et al v. US EPA (13-4079).

Posted by Marcia Oddi on Wednesday, January 18, 2017
Posted to Indiana Government

Ind. Gov't. - "Legislative leaders have vowed to straighten out regulation of production of vaping liquids in the state"

Updating this list of ILB posts on vaping liquid laws, the Fort Wayne Journal Gazette has a long editorial today headed "A smoking mess:Untangling of vaping liquid laws overdue." A sample:

Goodcat LLC of Naples, Florida, one of the vaping companies left out in the cold, challenged the constitutionality of the arrangement and won a preliminary injunction in U.S. District Court. Also last year, two legislators told the Indianapolis Business Journal that they had been questioned about the bill by the FBI. Whether the bureau is still investigating is not known.

There was other worrisome fallout from the vaping-law situation. One of the legislators who voted for the law, Rep. Alan Morrison, R-Terre Haute, took a job last September with Mulhaupt’s. Morrison told the business journal his vote had nothing to do with his getting the job. And Bedford Republican Brent Steele, who backed the measure before retiring from the Senate at the end of last year, began a new job this month as executive director of the Vapor Association of Indiana, a group that represents the six companies that have been approved to produce vaping liquids. The association will be lobbying to keep the present law, and Senate rules preclude Steele from registering as a lobbyist until a year after he leaves the Senate. But Steele told the Indianapolis Star everything will be on the up-and-up – he’s going to hire another firm to do the lobbying.

Maybe it’s because of those dubious ethical situations, or the interest of the courts, or the possible interest of federal investigators. Or it could be just a latently triggered sense of good old-fashioned Hoosier fairness. But there appears to be general agreement that something has to be done.

Posted by Marcia Oddi on Wednesday, January 18, 2017
Posted to Indiana Government

Ind. Gov't. - "Carmel cracks down on homeowners listing their property on Airbnb"

Last session, the Indiana General Assembly banned local governments from restricting single-use plastic bags. Here is a long list of posts, highlights include:

Yesterday a House committee heard HB 1133, re preemption of local bans on short term rentals.

Connecting the dots, last evening, Katie Cox of WRTV6 reported in a story headed "Carmel cracks down on homeowners listing their property on Airbnb." Some quotes:

CARMEL, Ind. -- The City of Carmel has a message for homeowners who have been listing their homes for rent on the popular travel website Airbnb: No more.

The city's Division of Building and Code Services has been sending letters to residents who have their homes listed on the site, telling them that they are in violation of the city's zoning laws. Homeowners have 10 days to remove their home from listings or file for a zoning variance.

City officials said they've received complaints from residents, homeowners associations and local hotels about the number of homes listed on the travel site.

Airbnb, which allows users to list their homes for rent or search for homes to rent in areas all over the world, currently has over 300 rentals listed in and around Carmel, Indiana.

Posted by Marcia Oddi on Wednesday, January 18, 2017
Posted to Indiana Government

Tuesday, January 17, 2017

Environment - More on "EPA Causes Massive Spill of Mining Waste Water in Colorado, Turns Animas River Bright Orange"

Here is the Aug. 7, 2015 story in Newsweek - don't miss the photo.

Today Reuters has a story by Keith Coffman headed "EPA denies $1 billion-plus in claims from toxic Colorado mine spill." The story begins:

The U.S. Environmental Protection Agency on Friday denied $1.2 billion in claims for economic losses stemming from a 2015 toxic wastewater spill accidentally triggered by the agency at a defunct Colorado mine, that fouled waterways in three states.

The EPA said in a statement that it was "not legally able to pay" damage claims over the discharge from the century-old Gold King Mine, located near the town of Silverton in southwestern Colorado.

Farmers, ranchers and river-running raft companies, among others, filed the claims seeking compensation for lost business or wages from the spill.

The agency said federal law grants immunity to government agencies if something goes awry from "discretionary" action taken by its employees.

"Therefore, the circumstances surrounding the Gold King Mine incident unfortunately do not meet the conditions necessary to pay claims," the statement said.

In August 2015, an EPA contractor hired to slow seepage of pollutants from the mine breached a tunnel wall, unleashing a torrent of wastewater that had built up behind the mountainside.

The discharge sent some 3 million gallons of orange-colored water containing 900,000 pounds of heavy metals, including arsenic, cadmium, lead and mercury, cascading into a creek that feeds the Animas River.

The plume of contamination then poured downstream into the San Juan River in New Mexico and across Native American lands before reaching Lake Powell in Utah days later.

The EPA decision, which the agency said can be appealed to the federal court system within six months, drew angry responses from elected officials in the affected states.

Posted by Marcia Oddi on Tuesday, January 17, 2017
Posted to Environment

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

For publication opinions today (3):

In In Re: the Grandparent Visitation of G.S., J.S. v. M.S. , a 6-page opinion, Judge Baker writes:

J.S. (Mother) appeals the portion of the trial court’s order mandating that G.S. (Child) be permitted to have contact with other paternal relatives when participating in grandparent visitation with M.S. (Grandmother). Mother argues that there is no statutory authority for a trial court to order a child to have visitation with anyone other than a grandparent in the face of a parent’s objections. We agree, and reverse in part. * * *

In reaching this result, we intend to express no opinion about the character of Child’s paternal relatives, or even whether being permitted to maintain contact with them would be in her best interests. Indeed, we encourage Mother to reconsider her position; considering all that Child has lost in her short life, it seems wise to permit her to maintain contact with anyone and everyone who loves and supports her. But while we encourage her to do so, we—and the trial court—are without authority to order her to do so. As such, we reverse the portions of the trial court’s order relating to all individuals other than Grandmother.

In Edward Taylor v. State of Indiana, a 9-page opinion, Judge Robb writes:
Police encountered Edward Taylor passed out behind the wheel of his running car. Suspecting he was intoxicated, they sought a search warrant for a blood draw. Because of statutory time constraints on conducting a chemical test, a photograph of the signed search warrant was sent by email to an officer’s cell phone. Taylor objected to the blood draw because the officer was unable to show him a physical copy of the search warrant and struggled with the officer before finally complying. After Taylor was charged with battery, resisting law enforcement, driving while suspended, and operating a vehicle while intoxicated, he filed a motion to suppress the blood draw evidence. The trial court denied the motion but certified its order for this interlocutory appeal in which Taylor raises the sole issue of whether the trial court erred in denying his motion to suppress. Concluding the trial court did not err in denying the motion to suppress because the blood draw was conducted pursuant to a valid search warrant, we affirm. * * *

Taylor’s only objection is that Sergeant Brahaum did not have a physical piece of paper to show him when he asked to see it; he does not claim that the affidavit and search warrant were not properly retained. A photograph or PDF of a search warrant transmitted via email is as valid and effective as a paper copy. See Smith v. State, 311 P.3d 132, 140 (Wyo. 2013) (noting that while state constitutional requirements for a written affidavit showing probable cause for issuance of a warrant remain the same, “[w]hat has changed over time, because of technological advances, is the meaning of the word ‘written.’ Recorded sworn testimony, which if preserved, and from which a transcript may be produced, is as much a ‘writing’ in today’s world as was a quill-penned line on a piece of parchment two centuries ago. To conclude otherwise would ignore today’s technological realities, and would place form over substance.”). That Sergeant Brahaum had only an electronic copy of the search warrant at the time of the blood draw did not violate Taylor’s rights because the search warrant was otherwise valid.

The trial court did not err in denying Taylor’s motion to suppress evidence because the evidence was obtained via a valid search warrant despite the fact the officer had in hand only an electronic copy at the time of the search. The trial court’s order is therefore affirmed.

In S.S. v. State of Indiana , a 6-page opinion, Judge May writes:
S.S. appeals the trial court’s order requiring him to pay restitution. S.S. presents two issues for our review, one of which we find dispositive - whether the juvenile court abused its discretion when it ordered him to pay restitution after it determined he did not have the ability to pay restitution. We reverse. * * *

Here, S.S. made a record regarding his ability to pay wherein he testified he was fifteen years old, did not have a job, did not have a bank account or savings, and lived with his mother. The juvenile court stated in its dispositional order, “[S.S.’s counsel] requests that the youth be found indigent as he does not have [t]he ability to pay restitution. Court notes same. Court authorizes the release of youth’s documents to the victim for civil litigation.” (App. at 15.) As the juvenile court noted S.S. was not able to pay restitution, and S.S. presented evidence of his indigency, the juvenile court abused its discretion in ordering him to pay restitution. See Bell v. State, 59 N.E.3d 959, 966 (Ind. 2016) (vacating trial court’s restitution order because Bell presented “sufficient and unrebutted testimony” of her inability to pay).[3] * * *
_______________
[3]As an aside, we note the juvenile court’s comment during the dispositional hearing regarding mother’s responsibility for the payment of S.S.’s restitution. * * * (parents are not liable for payment of child’s restitution obligation).

NFP civil decisions today (3):

Beverly Twilley v. Pangea Real Estate, PP Indy 6, LLC and All Unknown Persons (mem. dec.)

In the Termination of the Parent-Child Relationship of: E.L., S.L., L.L., & I.L., (Minor Children) and J.K. (Mother) v. The Indiana Department of Child Services (mem. dec.)

Wyckford SK Realty, LLC v. JPMCC 2006-CIBC14-7777 Wyckford Ct LLC (mem. dec.)

NFP criminal decisions today (3):

Fabian Roman Rubio v. State of Indiana (mem. dec.)

George King v. State of Indiana (mem. dec.)

Kenyatta Robinson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, January 17, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending Jan. 13, 2017 [see note]

Here is the Clerk's transfer list for the week ending Friday, Jan. 13, 2017. It is two pages (and 26 cases) long.

No transfers were granted last week.

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

Posted by Marcia Oddi on Tuesday, January 17, 2017
Posted to Indiana Transfer Lists

Ind. Law - "Could Indiana pass forfeiture reform this year?"

Could Indiana pass forfeiture reform this year? Ohio did earlier this month - see this Jan. 5th ILB post headed "Ohio Gov. Kasich signs bill limiting use of civil forfeiture."

Today Fatima Hussein of the Indianapolis Star reports:

At least eight Republican state lawmakers and a Democrat are making a concerted effort to upend the way citizens' personal property is seized by the government.

If they succeed, Indiana will join the ranks of a growing number of states that have reined in the widely used law enforcement practice of confiscating cars, money and other personal assets of criminal suspects, some of which may not be the fruits of a crime.

State lawmakers have submitted eight bills this legislative session dedicated to reforming the state's controversial civil forfeiture law, which is used to raise millions of dollars each year for local law enforcement agencies around the state.

Law enforcement officials consider civil forfeiture an important tool in fighting illegal drugs, but critics say it leads to "policing for profits" and abuses of private property rights.

Some of the bills would allow for the seizure of property only after a criminal is convicted of a crime. Other bills would restrict the way proceeds from civil forfeitures could be used. One calls for a study on the best practices for reforming forfeiture laws, and another calls for a change in the way criminal organizations' property is seized.

"I don’t know why no one has done this here before," said state Sen. Phil Boots, R-Crawfordsville, co-sponsor on one of the bills.

But civil asset forfeiture has long been a topic, both nationally and in Indiana. See, for example, this long Feb. 22, 2015 ILB post that begins:
Although much has been reported nationally (the Washington Post has made it a major focus) and in the ILB on the topic of civil asset forfeiture (here is a long, long list of ILB posts), and the issue was raised briefly in Indianapolis a few years back (in 2011 Heather Gillers had stories in the Star on the question of why these forfeitures were not going to the Common School Fund, as mandated in the Indiana Constitution), the practice and alleged abuses have continued.
Nationally, there is the memorable "Last Week Tonight with John Oliver" video from Oct. 5, 2014 that does a great job of explaining civil asset forfeiture.

Reporter Hussein's long story details some of this year's Indiana proposals:

This year Boots and fellow Republican Michael Young proposed Senate Bill 8, which would repeal a current provision permitting the state to turn over seized property to the federal government.

While the proposal would be effective this July, the extent of any state revenue reduction is unknown, according to the bill's fiscal impact statement.

Specifically, the bill requires that at least $15,000 in cash be involved before a civil asset-forfeiture process may be triggered, and it requires in most cases that a criminal conviction first be obtained or at least a criminal charge filed.

Sen. Lonnie Randolph, D-East Chicago, proposed Senate Bill 26, which would require authorities to notify property owners of the government's intent to seize property. Randolph's bill also requires a prosecuting attorney "to show by clear and convincing evidence that the owner of the property was convicted of and entered a plea of guilty or no contest to the offense that gave rise to the forfeiture," according to the text of the law.

Senate Bill 113, submitted by Sen. Dennis Kruse, R-Auburn, also would require a criminal conviction, would establish a procedure for criminal forfeiture and require that certain information concerning forfeitures be annually reported to the legislative council.

And Senate Bill 41, authored by Sen. Ronald Grooms, R-Jeffersonville, addresses the use of forfeiture proceeds in a rather complicated mathematical equation.

The bill provides that, in a forfeiture proceeding, one-third of the proceeds be given to the prosecuting attorney, "unless the prosecuting attorney has declined a request from the state police department to transfer the forfeiture to federal jurisdiction, in which case 20 percent of the proceeds but not more than $5,000 may be transferred to the prosecuting attorney."

The bill also provides that "of the remaining proceeds, 15 percent shall be provided to the common school fund and 85 percent shall be distributed to an account for distribution to law enforcement agencies participating in the seizure as necessary law enforcement expenses."

A bill that addresses Curry's request for a study committee was introduced on New Years Eve by state Rep. Timothy Wesco, R-Osceola.

Wesco's House Bill 1123 assigns a study committee on the topic of civil forfeiture laws. "One of the greatest obstacles is the revenue local communities receive from forfeiture proceeds, and there's concern about how to replace that revenue," he said. The purpose of the study would be to determine where to find replacement funds.

"My desire is for greater reform, but I take a pragmatic approach."

The study committee, which could cost upwards of $16,000 according to its fiscal impact statement, would be required to issue a final report with recommendations to the legislature no later than November this year.

Jeff Cardella, an Indianapolis criminal law attorney and professor at Indiana University's Robert H. McKinney School of Law, asks whether it's worth taking a summer to think it over.

Cardella recently filed a class-action lawsuit in federal court against Marion County's prosecutor, Indianapolis' mayor and the chief of police for civil forfeiture practices that he says violate criminal defendants' constitutional right to due process.

"I am glad that the Indiana legislature agrees that what is occurring is a constitutional violation and is drafting legislation to prevent this from occurring in the future," Cardella said.

The long story today concludes:
Part of the impetus for the legislation may be a growing number of challenges to the statutes.

Suits in Marion County have challenged both the manner in which property is seized and how the proceeds are spent.

Sam Gedge, an attorney at the Institute for Justice, a libertarian nonprofit based in Arlington, Va., filed a lawsuit last February in Marion Superior Court charging IMPD and prosecutors with violating the Indiana Constitution by not forwarding all civil forfeiture proceeds to the state’s common school fund.

Instead, the county is keeping 100 percent of the money in a “policing for profit” scheme, the institute said.

The Marion County prosecutor’s office and IMPD divvy up all the money received from civil forfeitures based on a 30/70 split, according to the lawsuit.

Whatever the cause, more legislators are pushing for reforms. The bill introduced by Boots and Young was heard by the Committee on Corrections and Criminal Law, last week.

The ILB has been following "civil forfeiture" since 2004. Here is a long list of posts.

Posted by Marcia Oddi on Tuesday, January 17, 2017
Posted to Indiana Courts | Indiana Government | Indiana Law

Monday, January 16, 2017

Ind. Gov't. - Controversy in Tippecanoe Co. re ink vs electronic fingerprints

WLFI 18's Kayla Sullivan reported Friday in a story that begins:

TIPPECANOE CO., Ind. (WLFI) — Indiana State Police said it has always accepted ink fingerprints and wouldn’t advise otherwise if an electronic fingerprint machine goes down. This response comes after the Tippecanoe County Sheriff’s Office told News 18 someone with ISP said it would not accept ink fingerprints as an alternative to electronic prints.

As News 18 was first to report on Wednesday, during the summer of 2016 an electronic fingerprinting machine went down for about a month and as a result about 500 inmates were not fingerprinted. But as we learned, the two agencies are not on the same page when it comes to procedures.

Now, state police and the sheriff’s office talk about what’s next.

“We do not have the manpower as a state police agency to hand hold and babysit grown adults that are charged with the responsibility of running their agencies,” said David Bursten, state police public information officer.

Indiana State Police are not taking the fall for the Tippecanoe County Sheriff’s Office’s failure to fingerprint 500 inmates last summer, nor does it want to hold the agency accountable.

“The trouble they get is with their local officials, with county prosecutors, with the voters who put them in office,” Bursten said.

But the sheriff’s office was quick to point fingers at state police Wednesday, when we asked why jailers didn’t use ink to fingerprint inmates while the electronic system was glitching for about a month.

“Everything is electronic now. Nobody wants to deal with paper and paper prints. They told us at that time, we probably won’t accept these,” Chief Deputy Steve Hartman told News 18 on Wednesday.

Posted by Marcia Oddi on Monday, January 16, 2017
Posted to Indiana Government

Environment - Still more on "Citizens File Legal Action To Preserve Crown Hill North Woods"

Updating this ILB post from Friday, Michelle Johnson had this story this weekend for WFYI:

INDIANAPOLIS - A federal judge has denied a request by an environmental group to stop a U.S. Department of Veterans’ Affairs project at Crown Hill Cemetery.

In her ruling, Chief Judge Jane Magnus-Stinson of the U.S. District Court of Southern Indiana wrote that the Indiana Forest Alliance’s overstated the impact of the project on a 15-acre parcel in the cemetery’s North Woods.

The group argued that the VA’s environmental impact assessment was flawed, and had asked that the project not go forward until a court could review it. Magnus-Stinson rejected that argument.

Jeff Stant, the executive director of the Forest Alliance, said his group will appeal the ruling to the 7th Circuit U.S. District Court in Chicago.

“We do not believe that the VA complied with the spirit or the letter of the National Environmental Policy Act (NEPA),” Stant said in a statement.

Unless the circuit court intervenes, Magnus-Stinson’s ruling appears to clear the way for the VA to develop a columbarium, which will house the cremated remains of military veterans. The VA bought the 15-acre parcel from Crown Hill Cemetery, Inc. in 2015.

The North Woods at Crown Hill is one of the few remaining pre-settlement, old-growth areas in Indiana, according to a 2006 assessment by an ecologist with the Indiana Division of Nature Preserves.

The Indiana Forest Alliance argued that given the site’s biological and cultural value, the VA should look for alternative site for the columbarium.

There will be a public candlelight vigil for the forest Monday, January 16 at the Crown Hill North Woods from 4 to 5 p.m.

From a WTHR story:
The VA has not responded to the Laura Hare Charitable Trust’s offer made on November 22 to purchase the land for a nature preserve, enabling the VA to find an alternate and more suitable site. “These forests are irreplaceable, and as we continue to lose the last remnants, we are all impoverished,” said Lenore Tedesco, a spokesperson for the Hare Trust. “It’s unfortunate that the VA has chosen this destructive course when they have a viable partner to save this forest and also achieve their goals.”

Since Sept. 1, hundreds of citizens have appealed to Indiana’s congressional delegation and VA Secretary General Robert McDonald to reconsider the project.

Posted by Marcia Oddi on Monday, January 16, 2017
Posted to Environment

Ind. Courts - "Hamilton County court expansion could shrink"

John Tuohy reports in the Indianapolis Star today:

Hamilton County commissioners will soon see early designs for a $22 million expansion of the government center, but one official said he will recommend less courtroom space than originally planned.

“Initially it looked like we needed four courtrooms, but now it seems one or two is more realistic,” said court administrator Orval Schierholz. * * *

Schierholz said judges in the circuit court and six superior courts have large backlogs of cases, but the way the state measures those backlogs is about to change. When the Indiana Office of State Court Services makes the modifications to the “weighted caseload measure” system, it will show that Hamilton County is in need of one or two more courtrooms, rather than four.

“What's changing are the rules, not the number of cases," Schierholz said. * * *

[County Commission President Steve] Dillinger said officials want to avoid the type of miscalculation made when a new juvenile detention center was built in 2007.

The $28.5 million facility was to hold what law enforcement officials expected would be a growing juvenile inmate population. But subsequent changes in state sentencing laws put more juveniles on probation and home detention rather than in jail. The facility, designed to hold 76 youth offenders, usually houses fewer than 10.

“The legislature is constantly tinkering with the laws, and sometimes it is hard to predict what they will do in the future,” Dillinger said.

Posted by Marcia Oddi on Monday, January 16, 2017
Posted to Indiana Courts

Ind. Law - NRA: "We are happy to report that a number of pro-gun bills have been filed"

Here is the list, published at NRA-IRA:

Senate Bill 14, introduced by state Senator James Tomes and state Senator Mark Messmer (R-48), would allow professional staff of the Indiana General Assembly, who are licensed to carry a handgun, to do so at the capitol complex.

House Bill 1071
, introduced by state Representative Sean Eberhart (R-57), would allow the petitioner of a civil protective order to temporarily carry a handgun without a permit. This would ensure that victims of domestic violence are not left defenseless at their most vulnerable time while waiting for their carry permit to be approved.

House Bill 1095, introduced by state Representative Woody Burton (R-58), would reform the definition of “armor piercing ammunition” to mirror the federal law. By doing so, it would update the current Indiana law which erroneously prohibits plastic coated ammunition. Coating a bullet in plastic does not make it armor piercing, but it does reduce fouling and wear on a firearm and reduces lead fumes without the higher cost of copper plated bullets. This would simply allow target shooters in Indiana to take advantage of the same advances in polymer technology that many others around the country enjoy when shooting recreationally.

House Bill 1159, introduced by state Representative Jim Lucas (R-69), would eliminate the requirement to obtain a permit in order to lawfully carry. This bill recognizes a law-abiding adult’s unconditional Right to Keep and Bear Arms for self-defense in the manner he or she chooses. This bill will make the current permitting system optional to allow citizens to obtain permits to take advantage of reciprocity agreements with other states.

House Bill 1161, introduced by state Representative Jim Lucas, would create a state income tax credit for expenses incurred when receiving firearms instruction or for purchasing firearm storage devices. This would reduce the financial burden for low income citizens who wish to responsibly exercise their Second Amendment rights.

House Bill 1258, introduced by state Representative Jim Lucas, would allow those who can legally carry their firearms in Indiana to carry on a college campus. There is no reason that an arbitrary border should prevent a law-abiding person from being able to defend themselves once they cross that border. So called “gun free zones” do little to protect people as criminals and those with bad intent simply ignore them, knowing that they will not encounter opposition from armed citizens.

NRA-ILA is the Institute for Legislative Action, the lobbying arm of the National Rifle Association.

Posted by Marcia Oddi on Monday, January 16, 2017
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/16/17):

Thursday, January 19

Next week's oral arguments before the Supreme Court (week of 1/23/17):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/16/17):

Thursday, January 16 Next week's oral arguments before the Court of Appeals (week of 1/23/17):

Monday, January 23 Tuesday, January 24

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, January 16, 2017
Posted to Upcoming Oral Arguments

Friday, January 13, 2017

Environment - More on "Citizens File Legal Action To Preserve Crown Hill North Woods"

Updating this ILB post from Dec. 8, 2016 (complete with photos of some of the magnificant endangered trees), federal Judge Magnus-Stinson has today issued a 25-page order denying the Plaintiffs' motion for a preliminary injunction. From the order:

For the reasons that follow, the Court denies IFA’s [Indiana Forest Alliance's] request for a preliminary injunction. IFA overlooks the limited scope of this Court’s administrative review, overstates the impact of the Project, and minimizes or even disregards the extensive process the Defendants utilized to solicit feedback and determine the environmental impact of the Project on the Property. Additionally, despite bearing the burden to support its injunction request, IFA assumes the public interest element of the analysis in its favor—without proof—and completely ignores that Crown Hill National Cemetery is currently at capacity and cannot accept additional Veterans for burial. IFA also ignores that Defendants reviewed the environmental impact of the Project after soliciting feedback pursuant to NEPA and made the decision to move forward with the Project after issuing a comprehensive analysis and making the report available to the public in various ways. IFA improperly asks this Court to second-guess that decision, which it cannot do within the context of administrative review. Because IFA has not met its burden to prove that a preliminary injunction is appropriate, its request must be denied. * * *

The Seventh Circuit has emphasized that “a preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it.” Girl Scouts, 549 F.3d at 1085. IFA has not met its burden to show that this is such a case. For the reasons detailed herein, the Court DENIES the Motion for Preliminary Injunction. [Filing No. 17.] This matter will proceed with summary judgment briefing, although the Court asks the assigned Magistrate Judge to hold a conference with the parties to determine if the parties can reach an agreed resolution.

Posted by Marcia Oddi on Friday, January 13, 2017
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court issued disciplinary opinion re Keith Henderson

Updating a long list of earlier ILB posts re Floyd County Prosecutor Keith Henderson, including this one from Oct. 6, 2016, headed "Floyd County prosecutor Keith Henderson should be significantly disciplined, not simply reprimanded, Disciplinary Commission recommends," the Supreme Court has issued a 4-0 opinion today, imposing a public reprimand. Chief Justice Rush concludes:

We decline to disturb the hearing officer’s decision to allow the Commission to amend Count 1 in advance of the final hearing. Upon careful review of the materials before us, we find sufficient support for the hearing officer’s findings and conclusions with respect to each of the charged rule violations. Accordingly, we find Respondent violated Professional Conduct Rules 1.7(a)(2), 1.8(d), and 8.4(d) with respect to Count 1, and we find in favor of Respondent on Count 2.

Discipline: The hearing officer recommended that Respondent receive a public reprimand. The Commission argues he should be suspended. The violation is serious and adversely affected the administration of justice in this case. However, noting Respondent’s misconduct occurred in connection with a single, unusual case and is an aberration from what otherwise has been a long and distinguished career as a public servant, we conclude a suspension is not warranted in this case. Thus, for Respondent’s professional misconduct, the Court imposes a public reprimand.

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

Posted by Marcia Oddi on Friday, January 13, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on "Missed Deadline Could Terminate Appeal of Gary Triple Murderer"

Updating this ILB post from earlier today, Eric Berman of WIBC has just reported:

A Gary triple murderer will be allowed to appeal his death sentence, despite missing a deadline last year.

Just one day after hearing arguments, a 4-1 Indiana Supreme Court has granted Kevin Isom's attorneys permission to go ahead with his appeal. Isom had refused to sign one of the necessary papers because he was dissatisfied with his state public defenders. His attorneys say he's declined to even meet with them. * * *

The Court issued a terse two-paragraph order reopening the appeal, and ordering the two sides to submit a schedule within a month for a hearing and final ruling. Justice Geoffrey Slaughter dissented.

ILB: Here is the order.

Posted by Marcia Oddi on Friday, January 13, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 15 NFP memorandum decision(s))

For publication opinions today (3):

In Samuel W. Koonce v. Kim M. Finney , a 22-page opinion, Judge May writes:

Samuel W. Koonce (“Husband”) appeals an order denying his Verified Motion for Relief from Judgment Pursuant to Trial Rule 60(B)(6) and his Verified Motion to Clarify Dissolution Decree. We affirm. * * *

Because the Dissolution Court’s Divorce Decree was not void, Husband is not entitled to relief from the judgment under Rule 60(B)(6). The Civil Court did not abuse its discretion when it denied Husband’s motion to clarify. We accordingly affirm.

In Rodney Tyms-Bey v. State of Indiana, a 2-1, 26-page opinion, Judge Baker writes:
Rodney Tyms-Bey brings this interlocutory appeal of the trial court’s order granting the State’s motion to strike his notice of defense under Indiana’s Religious Freedom Restoration Act (RFRA). Our legislature has carved out a statutory exception to RFRA protections when the government’s imposition of a burden furthers a compelling interest and is the least restrictive means of furthering that interest. We find as a matter of law that the State’s compelling interest in a uniform and mandatory taxation system falls into the statutory exception such that RFRA affords no relief to Tyms-Bey. Therefore, we affirm and remand for further proceedings. * * *

We adopt the analysis of the Lee Court and hold as a matter of law that, in the context of Indiana’s RFRA, there is a compelling governmental interest in collecting income tax revenue. Moreover, we hold as a matter of law that the least restrictive means of furthering that compelling interest is uniform and mandatory participation in the income tax system. There are no facts that TymsBey could proffer with respect to his exercise of religion that would not be overcome by the State’s compelling interest and the means used by the State in furthering that interest. In other words, as a matter of law, Indiana’s RFRA offers no protection for the allegedly criminal nonpayment of income taxes by TymsBey, and the trial court did not err by denying his request to assert the defense.

The judgment of the trial court is affirmed and remanded for further proceedings.

Vaidik, C.J., concurs.

Najam, J., dissents with a separate opinion. [that begins, on p. 10 of 26] I respectfully dissent. Tyms-Bey’s alleged RFRA defense may ultimately not succeed, but he is entitled to his day in court. The majority’s holding that, in effect, Tyms-Bey has not stated a claim under RFRA and that he is not even entitled to present evidence in support of his alleged defense is too quick to dispose of Tyms-Bey’s claim and denies him the particularized adjudication that is expressly afforded to him by Indiana’s RFRA. Moreover, in enacting Indiana’s RFRA, our legislature explicitly reserved to itself, and withheld from our judiciary, the right to declare categorical exemptions from RFRA’s application. The majority’s holding disregards that command and categorically removes tax-based actions from RFRA’s application. The majority’s analysis further misunderstands the least restrictive means test under RFRA and denies Tyms-Bey his right under Article 1, Section 19 of the Indiana Constitution. And the majority’s selective use of federal authority fails to consider federal cases in which religious exemptions from facially neutral tax laws have been permitted, and, in any event, the authority relied on by the majority is readily distinguishable. * * *

Tyms-Bey is entitled to his day in court and to the same due process as any other criminal defendant, including his right to present his affirmative defense to a jury. Otherwise, RFRA is for naught and offers no more protection to the exercise of religion than does the First Amendment. Accordingly, I would reverse the trial court’s judgment and remand for further proceedings that comply with the unmistakable commands of RFRA, with Article 1, Section 19, and with the same criminal trial procedure we follow when, as here, the defendant asserts an affirmative defense.

In K.G. v. State of Indiana , a 6-page opinion, Judge Altice writes:

K.G. appeals from his adjudication as a delinquent for committing an act that would constitute Class A misdemeanor theft if committed by an adult. Relying upon Ind. Code § 31-37-11-2(b), K.G. argues that he was entitled to discharge because the fact-finding hearing was not commenced within sixty days, excluding Saturdays, Sundays and legal holidays, of the petition being filed. * * *

Although Section 2 uses “must” regarding the time limits for holding the hearing, we conclude that the term is intended to be directory rather than mandatory in this context. Cf. Parmeter v. Cass Cty. Dep’t of Child Servs., 878 N.E.2d 444, 448 (Ind. Ct. App. 2007) (regarding the required timing of a dispositional hearing in a CHINS case, the court found that the use of the term “shall” in the applicable statutes was directory rather than mandatory). Accordingly, we decline the invitation to read a discharge remedy into Section 2(b) that the legislature did not mandate, especially where the legislature specified precise remedies in other parts of the chapter. Judgment affirmed.

NFP civil decisions today (4):

In the Matter of D.T.T., A Child Alleged to be in Need of Services, M.T. v. Indiana Department of Child Services (mem. dec.)

In the Termination of the Parent-Child Relationship of: B.L.D.H. (Minor Child), and D.D. (Mother) & B.H. (Father) v. The Indiana Department of Child Services (mem. dec.)

Rachea Eytcheson v. Jason Eytcheson (mem. dec.)

Brian S. Moore v. Del Anderson (mem. dec.)

NFP criminal decisions today (11):

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

Ricky Snelling v. State of Indiana (mem. dec.)

Samuel Pinkston v. State of Indiana (mem. dec.)

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

Edward M. Tate, Jr. v. State of Indiana (mem. dec.)

Lavon Washington v. State of Indiana (mem. dec.)

Nancy L. Robinson v. James Robinson (mem. dec.)

Samuel L. Wait v. State of Indiana (mem. dec.)

Dwana Prince v. State of Indiana (mem. dec.)

Kazie Sekou Cole v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Friday, January 13, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "Boone County donates $10,000 to fund amicus brief in pivotal tax court appeal"

Updating this Jan. 6th ILB post, Rod Rose follows up last week's "big box/dark box tax" appeal story in The Lebanon Reporter with another, dated Jan. 12 and headed "Chief justice sets filing deadline for amicus briefs in tax bill case." Some quotes:

On Friday, Chief Justice Loretta H. Rush granted the Indiana Association of Cities and Towns — now known as Accelerate Indiana Municipalities — and IMLA permission to file an amicus brief by no later than Jan. 24. She denied an objection filed by Paul Jones Law, LLC, on behalf of Kohl’s Indiana LP, which claimed “there is no good cause” to grant IACT and IMLA’s request to file “because being unaware of the proceedings does not demonstrate good cause,” and that “all parties have completed the original briefing schedule and the filing of additional briefs places an undue burden” on Kohl’s.

Rush said Kohl’s must respond to the IACT/IMLA brief 20 days after it is filed.

Other amicus briefs have been filed by the Indiana Legal Foundation, Inc., and the Association of Indiana Counties. The ILF opposes the supreme court hearing the tax court appeal, claiming acceptance “would be a dangerous affront to stability in the law with a negative impact on Indiana businesses.”

At issue is the taxable value of an 88,242-square-foot Kohl’s at the Boulevard Crossing shopping center in Kokomo. The Howard County Assessor put those tax values at $5.984 million, $5.685 million and $5.906 million in 2010, 2011 and 2012 respectively. Kohl’s unsuccessfully appealed to the Howard County Property Tax Assessment Board of Appeals, then successfully appealed to the Indiana Board of Tax Review. Howard County took that decision to the Indiana Tax Court, where Tax Court Judge Martha Blood Wentworth in September ruled in favor of the retailer. * * *

Tuesday, Boone County Commissioner Jeff Wolfe told the county council that he has verbal agreements from other counties to contribute to the IACT/IMLA brief’s costs. Towns and cities are likely to be willing to contribute as well because of the potential devastating impact on their budgets, should Kohl’s argument be upheld and distribution and manufacturing companies seek similar relief from tax bills.

The story also reports:
Howard County asked the Indiana Court of Appeals to overrule the tax court. The appellate court instead upheld the tax court, prompting Howard County to seek an Indiana Supreme Court ruling.
The ILB believes the above is incorrect, in that appeals from Tax Court decisions would go directly to the Supreme Court.

Here is the docket
in Howard County Assessor v. Kohl's Indiana LP. Here is the ILB summary of the Sept. 7, 2016 Tax Court opinion.

Here is the 43-page Howard County petition for review, filed with the Supreme Court Nov. 7, 2016.

Here is the 27-page amicus brief of the Indiana County Assessors Ass'n., filed Nov. 23, 2016.

Here is the 41-page Kohl's brief in response, filed Dec. 14, 2016.

Here is the 22-page amicus brief of the Indiana Legal Foundation, filed Dec. 19, 2016.

Posted by Marcia Oddi on Friday, January 13, 2017
Posted to Ind. Tax Ct. Decisions | Indiana Courts | Indiana Government

Ind. Decisions - "Missed Deadline Could Terminate Appeal of Gary Triple Murderer"

The sub-header to this story by Eric Berman of WIBC is "Attorneys ask justices to treat unsigned document as technicality, reinstate appeal of death sentence." The case, a direct appeal argued Thursday before the Supreme Court, is Kevin Charles Isom v. State of Indiana. Reporter Berman writes:

The Indiana Supreme Court will decide whether a Gary man who murdered his family has blown his chance to appeal his death sentence.

Kevin Isom has been on death row for four years for gunning down his wife and two teenage stepchildren in 2007. But when Isom's public defenders brought him his appeal papers to sign, they forgot one. When they went back to correct it, Isom viewed the oversight as a sign of incompetence, and refused to sign it or even meet with them unless he got a new lawyer. Despite a judge's warnings he'd lose his right to appeal, Isom stuck to his refusal and let the filing deadline pass.

The Court is considering whether the missing document is a harmless oversight, or if allowing his appeal would give defendants a new delaying tactic. Deputy attorney general Kelly Loy notes the missed deadline has already put the case in limbo for a full year. And she questions whether Isom is really interested in appealing. Justice Mark Massa notes Isom flatly said in court he'd sign if he got a new lawyer, and Justice Steve David says the defender's office could definitively resolve the issue by assigning a new attorney and see if it changes Isom's position.

But Justice Robert Rucker says the stalemate reflects a defendant trying to make his own rules. And Massa questions whether Isom's actions and statements indicate that he doesn't understand what's going on, or that he understands perfectly and is trying to game the system.

Isom could still appeal in federal court, but that deadline is seven weeks away. State public defender Anne Kaiser argues Isom's refusal to sign suggests he's mentally incompetent to make decisions about his defense, and says lawyers may pursue the same argument if Isom doesn't authorize a federal appeal.

ILB: Watch the oral argument here.

Posted by Marcia Oddi on Friday, January 13, 2017
Posted to Ind. Trial Ct. Decisions

Thursday, January 12, 2017

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

For publication opinions today (2):

NFP civil decisions today (0):

In Paul and Michelle Riley v. AAA Automotive, LLC, d/b/a 3A Automotive, a 12-page opinion, Judge Bailey writes:

Paul and Michelle Riley (“the Rileys”) appeal a judgment entered upon an arbitrator’s award in favor of AAA Automotive, LLC d/b/a 3A Automotive (“3A Automotive”). The Rileys present the sole, restated issue of whether the trial court erred in refusing to vacate the award, which consisted almost entirely of attorney’s fees, apparently itemized in an ex parte document submitted to the arbitrator but not provided to the Rileys in accordance with Alternative Dispute Resolution Rule 3.4(B) or provided to the trial court. We reverse. * * *

On appeal, the Rileys concede that they did not oppose arbitration after mediation could not be timely scheduled or was unsuccessful. However, neither party provided this Court with an agreement defining the scope of arbitration. The Chronological Case Summary does not reflect the filing of an agreement to arbitrate. Even assuming a proper arbitration order, without an agreement, we cannot definitively discern whether the arbitrator exceeded his authority as to substantive provisions. However, the lack of impartial and fair proceedings is evident. The arbitrator accepted an ex parte document upon which he apparently rested the award. The Rileys’ lack of notice and opportunity to respond is readily apparent from the argument and admissions made by the attorney for 3A Automotive at the motion to correct error hearing:

I did not give those [attorney fee’s invoices] to the Defendant because I feel like they’re Work Product and protected by Attorney/Client Privilege because they actually have my strategies inside of them. No objection was made that those details weren’t there. But the affidavit, which is attached – I can – yeah, I don’t have a copy of the affidavit. But in arbitration, an affidavit where I swore that all my attorney fees were correct and accurate was presented to the arbitrator and to the Defendant. And I also presented the arbitrator with my detailed invoices with a claim that they were Attorney/Client Privilege and I wasn’t going to turn [them] over to the Defendant. And there were objections during the arbitration made that I didn’t turn those over to anyone. And the arbitrator looked at my invoices and the hours that I spent on it. My rate is very reasonable. It’s too reasonable in some cases.
(Tr. at 31.) Attorney Obermeyer went on to claim that his fee was “fair” but also concede that the fees “still got out of hand.” (Tr. at 31-32.) Subsequent commentary indicated that he claimed entitlement to fees to obtain a copy of the Carfax report, something relevant to his own client’s defense of the counterclaim for fraud.

There is no evidence of an arbitration agreement in the record and, hence, no evidence that there was a meeting of the minds concerning the scope and terms of the arbitration. Thus, the arbitration proceedings were for naught, and the judgment on the arbitration award must be vacated.[6]

The trial court erred in entering judgment upon the purported arbitration award. Reversed.
__________________
[6] As a cautionary note, alternative dispute resolution has reached full bloom since it was first recognized by our Indiana Supreme Court. Nevertheless, absent a contract, our courts are to remain open – pursuant to Article 1, Section 12 of the Indiana Constitution – and participation in alternative dispute resolution is still voluntary. While we encourage voluntary settlement and resolution, we do so only after full disclosure of the nature of the alternative dispute method selected and its consequences to the litigants. It is incumbent upon the mediator or arbitrator to document the agreement to mediate or arbitrate in the Chronological Case Summary. See A.D.R. 1.8. And, moreover, where an individual has been selected first as a mediator, we question the propriety of that individual continuing to participate as an arbitrator, when he or she has first participated with the same litigants in a failed mediation.

In In the Matter of: S.G., L.G., D.G., & A.W. and S.S. (Mother) v. Indiana Department of Child Servcies, and Child Advocates, Inc., a 19-page opinion, Judge Riley writes:
Mother challenges the trial court’s order that DCS need not undertake reasonable efforts to reunify her with the Children. In general, once a child has been declared a CHINS, DCS is legally required to “make reasonable efforts to preserve and reunify families . . . to make it possible for the child to return safely to the child’s home as soon as possible.” Ind. Code § 31-34-21-5.5(b)(2). However, such reasonable efforts at reunification “are not required if the court finds . . . [that] [t]he parental rights of a parent with respect to a biological or adoptive sibling of a child who is a [CHINS] have been involuntarily terminated by a court.” I.C. § 31-34-21-5.6(b)(4) (No Reasonable Efforts Statute). In the trial court’s Order adjudicating the Children to be CHINS, it found that reasonable efforts are not required based on the fact that Mother’s parental rights to M.G. and A.G. were previously terminated. Mother now contends that “[t]his [N]o [R]easonable [E]fforts [S]tatute is unconstitutional as applied to [her] and is also void for vagueness.” (Appellant’s Br. p. 12) (internal quotation marks omitted). In the alternative, even if we find that the No Reasonable Efforts Statute is constitutional, Mother asserts that the trial court abused its discretion by applying it in this case. * * *

Based on the foregoing, we conclude that the No Reasonable Efforts Statute is not unconstitutional as applied to Mother, and the trial court did not abuse its discretion by granting DCS’ request to forego reasonable efforts.

NFP criminal decisions today (1):

Michaeel Gonser v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, January 12, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on COA opinion in Groth v. State

Updating a long list of ILB posts, of which this one on Jan. 10th is the most recent, here in full is an editorial today in the Fort Wayne Journal Gazette. The heading is "Balance of power: Judge wisely holds Pence to open-records law":

Monday, the day his term as Indiana’s 50th governor ended, Mike Pence got a going-away present from the Indiana Court of Appeals. But it came, thankfully, with some crucial qualifiers.

A long-running legal battle over the governor’s decision to deny a 2014 open-records request was resolved in Pence’s favor by a three-judge panel.

By a 2-1 vote, the court upheld a lower court’s ruling that Pence acted properly when he withheld some documents that had been sought by Indianapolis attorney William Groth under the Indiana Access to Public Records Act. The court agreed with Pence’s argument that the documents, which related to Indiana’s decision to join the state of Texas in a legal challenge to an immigration order by President Barack Obama, were legal working papers that were exempt from public disclosure.

Judge Edward Najam wrote that one of the documents the governor decided to withhold, a “white paper” on legal strategy that was prepared by a Texas official, “is exactly the type of record that may be excluded from public access under APRA.” The court ruled that the governor’s decision to redact some information from legal invoices related to the decision was similarly within the law.

This is the way the law is supposed to work. The Indiana public access counselor, Luke Britt, and a superior court judge had previously come to the same conclusion.

But Pence’s legal team sought to go much further, citing an Indiana Supreme Court decision last year that has made the legislature virtually exempt from its own open-records requirements.

That case also involved a request by Groth. He had sought access to any communications that might have flowed between Rep. Eric Koch, R-Bedford, then the chairman of the House Utilities, Energy and Telecommunications Committee, and utility executives regarding a bill Koch was writing that would have discouraged homeowners and other private entities from producing solar power.

Last April, the Indiana Supreme Court effectively washed its hands of ruling on Groth’s request, contending that though the open-records law applied to the legislature, the court should not be determining whether the lawmakers’ definition of a “work product” was appropriate because of the doctrine of separation of powers. (Legislators who profess to be in favor of open government still must address the problem that ruling has created.)

Pence’s attorneys argued that the high court’s concern with separation of powers meant that the governor should be making his own decisions about when and how the open-records law applies to him.

But in a powerfully written opinion, Najam rejected that argument.

“The governor’s argument would, in effect, render APRA meaningless as applied to him and his staff,” Najam wrote. “APRA does not provide for any such absolute privilege, and the separation of powers doctrine does not require it. We reject the Governor’s assertion that his ‘own determinations’ regarding whether to disclose public records are not subject to judicial review.”

Steve Key, executive director of the Hoosier State Press Association, said the decision was a key one. “They didn’t buy the governor’s argument that this is a separation-of-powers issue,” he said Tuesday.

Pence’s attempt to claim exemption from the open-records law was puzzling; he has generally been a strong champion of open government. In any case, new Gov. Eric Holcomb has an opportunity to reset the clock by indicating he accepts the court’s decision and intends to live within the letter and spirit of Indiana’s open-records law.

Posted by Marcia Oddi on Thursday, January 12, 2017
Posted to Ind. App.Ct. Decisions

Ind. Law - "South Bend school board president accused of sending 'vulgar and derogatory' text"

Kevin Allen reports today in a story in the South Bend Tribune that begins:

On Monday evening, South Bend Community School Corp. board members voted unanimously to make Stan Wruble the board's new president.

Near the end of that same meeting, local attorney Pete Agostino stood up during the public comment period to say the board should censure Wruble, who also is a local attorney. Agostino's reason: a "vulgar and derogatory" text message that Wruble sent to one of Agostino's clients.

"But it isn't the vulgarity of that message that causes me to be here," Agostino told the board. "The words that Mr. Wruble used were not just offensive. They manifested his prejudice based on gender, sexual orientation and national origin. And that is why I'm here. There should be no room in the South Bend Community School Corp. for behavior like that — especially among members of this board."

Agostino handed a printout of Wruble's text message to each member of the board, but he didn't ask for it to be read aloud at the meeting.

The Tribune filed a public records request for the document on Tuesday. South Bend school administrators acknowledged that the document is a public record, but they had not provided it by Wednesday night.

Posted by Marcia Oddi on Thursday, January 12, 2017
Posted to Indiana Law

Ind. Gov't. - "Coalition fighting abortion bills"

Niki Kelly reports in the Fort Wayne Journal Gazette:

As legislators push to add more regulations to abortions – and even a total ban – a new alliance supporting reproductive rights has sprouted.

The Indiana Reproductive Justice Coalition is going to fight abortion limitations this session and started Wednesday by delivering 3,000 petitions to Gov. Eric Holcomb’s office against House Bill 1134.

The legislation, sponsored by Goshen Republican Rep. Curt Nisly, would ban abortion.

“We hoped to move beyond bills trying to strip Hoosiers of their constitutional rights,” said Harmony Glenn of Indy Feminists. “We find this unacceptable.”

It is the latest attempt by Republicans, who have a supermajority in the Indiana House and Senate, to try to reduce or eliminate the number of abortions in the state.

Several recent Indiana bills have been struck down by federal judges, including one last year that would have prohibited abortions sought because of a fetus’ genetic abnormalities – such as a diagnoses of Down syndrome.

Nisly’s bill is meant as a test case to see if a new U.S. Supreme Court will overturn Roe v. Wade – the 1973 decision legalizing abortion.

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

But that’s not the only bill on the table.

Sen. Dennis Kruse, R-Auburn, has another one that has a much better chance of becoming law because it builds on current restrictions.

Senate Bill 118
would push back the waiting period to 48 hours between an initial visit and when a person could have an abortion. And at least 48 hours beforehand, women would be forced to view an ultrasound of the fetus and listen to the fetal heartbeat.

Current law allows women to opt out and the waiting period for informed consent is 18 hours.

Kruse said his bill isn’t about patient safety – it’s about hoping more women will reconsider and decide not to abort.

“I’m pro-life so I think it would advance that cause,” he said. “When women actually hear the heartbeat or see the baby on an ultrasound, many decide to keep it. They see it as a human being.”

House Speaker Brian Bosma hasn’t killed Nisly’s bill but also hasn’t embraced it, saying, “I don’t think we should buy a lawsuit, personally.”

It has been sent to House Public Policy where new Chairman Rep. Ben Smaltz, R-Auburn, hasn’t decided if it will get a hearing.

Kruse’s bill has been sent to the Health and Provider Services Committee, where abortion bills have regularly passed.

Posted by Marcia Oddi on Thursday, January 12, 2017
Posted to Indiana Government

Ind. Gov't. - "DNR hearing officer backs state park alcohol ruling change"

More on the Indiana Dunes Pavilion alcohol controversy, via a story yesterday by Amy Lavalley in the Gary Post-Tribune. (List of earlier posts.) The lengthy story begins:

A change to bring a state rule into compliance with a new state law that allowed the Indiana Department of Natural Resources to apply for a liquor permit for the pavilion at Indiana Dunes State Park recently got an apparent boost.

The hearing officer who presided over a public hearing on the change held in late November at Woodland Park recommended the state's Natural Resources Commission make the change in a filing made public Tuesday on the DNR's website for the pavilion project.

The commission is scheduled to consider the matter during a Jan. 17 meeting in Indianapolis.

The 145-page filing, which includes public comments made at the hearing as well as those submitted electronically and by mail, also includes a DNR response to concerns raised by the public about safety and other matters if liquor were made available along the lakefront.

ILB: Here is the 145-page report.

Posted by Marcia Oddi on Thursday, January 12, 2017
Posted to Indiana Government

Ind. Gov't. - "New Superintendent of Public Instruction, Jennifer McCormick, is responding to concerns about layoffs and resignations at the Department of Education" [Updated]

Kara Kenney reported last evening for WRTV6:

The new Superintendent of Public Instruction, Jennifer McCormick, is responding to concerns about layoffs and resignations at the Indiana Department of Education.

“This is the part of transitioning that nobody enjoys,” said McCormick. “Obviously they’re good people that are in just a situation where we want to make some changes.”

Call 6 Investigates has confirmed 34 people have been pink-slipped and an additional 26 people have resigned, for a total of 60 workers.

That’s approximately a quarter of IDOE’s entire 250 person workforce.

As the office changes from Democrat to Republican leadership, some of the layoffs were expected, especially among Glenda Ritz’s cabinet, such as chief of staff and government affairs.

However, among those pink slipped also included outreach coordinators who worked with children and teachers in struggling schools. * * *

McCormick denied politics were at play when it came to layoffs.

“It wasn't a political activity,” said McCormick. “We looked at job performance and where we want to go with programming." * * *

Call 6 Investigates also checked with other elected offices, such as the Indiana Attorney General’s office and the Governor’s office, but they did not provide any layoff or resignation figures.

[Updated at 10:05 a.m.] Kara Kenney tweets: "@INATTYGENERAL office confirms 24 people gone from office through resignations, retirements and firings."

Posted by Marcia Oddi on Thursday, January 12, 2017
Posted to Indiana Government

Ind. Decisions - Tax Court posts one, filed Jan. 11

In Merchandise Warehouse Co., Inc. v. Indiana Department of State Revenue, an 11-page opinion, Judge Wentworth writes:

Between October 2009 and September 2012 (the period at issue), Merchandise Warehouse Co., Inc. purchased certain freezer equipment and electricity to power its freezer equipment. Upon review, the Court finds that those retail transactions were not exempt from Indiana sales tax under Indiana Code § 6-2.5-5-3 and Indiana Code § 6- 2.5-5-5.1. * * *

Merchandise Warehouse does not produce other tangible personal property in an integrated production process when it freezes its customers’ food products. Accordingly, the Court GRANTS summary judgment in favor of the Department and AGAINST Merchandise Warehouse.

Posted by Marcia Oddi on Thursday, January 12, 2017
Posted to Ind. Tax Ct. Decisions

Wednesday, January 11, 2017

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

In Stephen H. Perron v. J.P. Morgan Chase Bank, N.A. (SD Ind., Pratt), a 12-page opinion, Judge Sykes writes:

Stephen Perron and Christine Jackson owned their home in Indianapolis subject to a note and mortgage serviced by J.P. Morgan Chase Bank. In 2012 the couple divorced, ending their 25-year marriage. They blame Chase for contributing to the collapse of their marriage by failing to comply with its obligations under the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601–2617.

RESPA requires mortgage servicers to correct account errors and disclose account information when a borrower sends a written request for information. In 2011 Perron and Jackson sent two such letters accusing Chase of erroneously paying the wrong homeowner’s insurer using $1,422 from their escrow account. The mistake was their own fault; they had switched insurers without telling Chase. When the bank learned of the change, it promptly paid the new insurer and informed the couple that their old insurer would send a refund check. The bank also told them to forward the refund check in order to replenish the depleted escrow.

They didn’t. When the refund came, they pocketed the money instead. So the bank adjusted their monthly mortgage payment to make up the shortfall. When the couple refused to pay the higher amount, the mortgage went into default. Instead of curing, they sent Chase two letters requesting information under RESPA and demanding that the bank reimburse their escrow. In response Chase sent a complete account history, including a detailed escrow statement.

The couple then sued Chase claiming that its response was inadequate under RESPA and caused more than $300,000 in damages—including the loss of their marriage. They tacked on a claim for breach of the implied covenant of good faith and fair dealing. The district judge entered summary judgment for Chase.

We affirm. Chase’s response almost perfectly complied with its RESPA duties. To the extent that any requested information was missing, Perron and Jackson suffered no actual damages and thus have no viable claim. Nor did Chase breach the duty of good faith and fair dealing, assuming that Indiana would recognize the implied covenant in this context.

Posted by Marcia Oddi on Wednesday, January 11, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Monroe County: "Court officials feeling impact of sentencing code changes"

Ernest Rollins reports today in the $$ Bloomington Herald-Times in a long story - some quotes:

A change in state law has been in effect for a full year, and court officials say the local justice system is feeling the impact of the recent law change regarding the incarceration of Level 6 felons.

Starting on Jan. 1, 2016, Level 6 felons were ineligible to be sentenced to state correctional facilities. The state Legislature approved the change in 2014 as part of its revision of the Indiana Criminal Code. Sentencing for Level 6 felonies ranges from 6 months to 2½ years, and can be for crimes such as possession of controlled substances or check deception and fraud.

The story continues that under a "federal consent decree that required the jail not to exceed a 248 secure bed count number" the Marion County jail population is monitored on a daily basis.
[Monroe County Circuit Court Judge Kenneth Todd] said since the ruling went into effect, the typical number of inmates in secure beds at the jail has increased to the point where the county has hit the ceiling — or surpassed — jail capacity as part of the consent decree. * * *

When the jail exceeds allowed jail capacity, Crowe said, the county looks to other jails to house offenders. * * *

But the strategy of transporting inmates to other counties when Monroe has capacity issues is becoming harder to carry out.

“We are not getting other counties willing to accept them,” Crowe said, adding the common refrain is that the jails do not have any room. Crowe said the law change has affected other counties much more than Monroe. He said many of the inmates are at the jail on charges of probation violation or failure to appear in court, generally Level 6 felons and below who were already convicted and spent time in the county jail.

Changes to the criminal code also affected the county’s community corrections department, which saw an increase in referrals.

Posted by Marcia Oddi on Wednesday, January 11, 2017
Posted to Indiana Courts

Ind. Decisions - More on "Court says IU South Bend professor who filed suit wasn't defamed: IU found another professor responsible for plagiarism"

Updating this ILB post from Jan. 4, 2017, Margaret Fosmoe of the South Bend Tribune updates her earlier story by reporting today:

SOUTH BEND — Tenured longtime Indiana University South Bend business professor Douglas Agbetsiafa was fired in 2014 for plagiarism, according to Indiana University.

The Tribune made a formal request to IU about the circumstances of Agbetsiafa's departure. * * *

Agbetsiafa was a professor and at one time chair of IU South Bend's economics department. He was paid a salary of $108,351 in 2013, according to the state's online database of public spending.

A Jan. 4 Tribune article reported the outcome of a defamation lawsuit filed by IU South Bend business professor Peter Aghimien against another business professor, Mark Fox.

Posted by Marcia Oddi on Wednesday, January 11, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Appeals court reverses drug conviction after EPD SWAT raid"

The 2-1 Court of Appeals opinion last Friday, Jan. 6th in Mario Deon Watkins v. State of Indiana is the subject of a story today by Jon Webb in the Evansville Courier & Press that begins:

The Indiana Court of Appeals last week ruled to reverse an Evansville man’s felony drug sentence, claiming city police used unreasonably intrusive methods during an arrest involving a SWAT team and flash-bang grenades.

In a 2-1 decision published Friday, the court ruled that some evidence in the trial shouldn’t have been admitted because of how it was obtained. Judges particularly criticized the use of a flash-bang grenade that went off in the same room as a 9-month-old baby.

“Comparing the factors, we conclude that while there was a considerable degree of suspicion, the extent of law enforcement needs for a military-style assault was low and the degree of intrusion was unreasonably high,” Judge Elaine Brown wrote in the majority opinion. “Under these specific circumstances and particularly in light of the use of a flash bang grenade in the same room as a 9-month old baby who was ‘very close’ to where the flash bang was deployed, the State has not demonstrated that the police conduct was reasonable under the totality of the circumstances. We conclude that the search violated Watkins’s rights under Article 1, Section 11 of the Indiana Constitution ... ."

Later in the story:
Cullum said the department has since changed the way it employs flash-bang devices, putting them on the threshold of a residence as opposed to tossing them inside. The impact, he said, is the same.
The ILB recalls this 2015 7th Circuit opinion, also involving the Evansville police and flash-bang grenades.

Posted by Marcia Oddi on Wednesday, January 11, 2017
Posted to Ind. App.Ct. Decisions

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

For publication opinions today (1):

In Dominique Castillo v. State of Indiana, a 10-page opinion, Sr. Judge Sharpnack writes:

The trial court revoked the probation of Dominique Castillo and ordered that he serve the whole of his suspended sentence. He appeals contending that the trial court violated his due process rights because it did not explain why it ordered him to serve hi s entire suspended sentence. He also claims that because the trial court did not explain its choice, it is possible that it may have considered inappropriate testimony. He requests that we “reverse the trial court’s order revoking his suspended sentence and remand for an additional hearing to address the appropriate sanction for his violation of probation after which the trial court should issue a statement of its reasons for its decision.” Appellant’s Reply Br. p. 7. We affirm. * * *

Castillo’s argument, by his own admission, is “pure speculation because” according to Castillo “there is [no statement] from which the trial court’s rationale [in choosing a sanction] can be discerned.” Appellant’s Br. p. 11. However, w e already have determined the trial court was not required to provide specific reasons for imposing the sanction. W e are un persuaded the trial court may have considered inappropriate testimony. No abuse of discretion occurred here.

NFP civil decisions today (0):

NFP criminal decisions today (5):

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

Alisha M. King v. State of Indiana (mem. dec.)

Billy T. Reames v. State of Indiana (mem. dec.)

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

John Webb v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, January 11, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Federal Judge Barker decides GEFT challenge to Indianapolis digital sign prohibition

Updating this ILB post from May 20, 2016, the ILB reports today in a detailed story that begins:

Billboard company GEFT Outdoor LLC and the city of Indianapolis have agreed to a court settlement that will allow the company to operate two local digital billboards while sparing the city any financial liability for a former sign ordinance that was found to be unconstitutional.

Judge Sarah Evans Barker issued an order stipulating terms of the agreement Tuesday in U.S. District Court in Indianapolis.

Under the settlement, Indianapolis-based GEFT will be able to convert two traditional billboards near Interstate 70 on the city’s east and west sides into digital signs, as long as it abides by certain conditions.

The city had previously denied GEFT's requests to convert the billboards, which are at 4305 W. Morris St. and 5780 E. 25th St.

GEFT agreed to abandon its claim for damages and attorneys’ fees against the city. The company said in June that it expected those damages would amount to millions of dollars.

The agreement effectively ends a legal fight that began in October 2015 when GEFT sued the city over its sign ordinance. The company claimed that a recent U.S. Supreme Court decision made the city’s sign ordinance unconstitutional.

Here is a copy of the 14-page, Jan. 10, 2017 order.

Posted by Marcia Oddi on Wednesday, January 11, 2017
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - More on: Elimination of Hammond City Court would not be a radical idea

Updating this Dec. 5, 2016 ILB post, Ed Bierschenk of the NWI Times reported yesterday in a story headed "Hammond council votes to phase out City Court" that begins:

HAMMOND — The Hammond City Council on Monday approved an ordinance that would phase out the City Court over the next two years, despite some vociferous objections by some council members, attorneys and a few members of the public.

"I'm disappointed," said recently appointed Hammond City Court Judge Amy Jorgensen following the council vote.

Under the proposed ordinance, most of the new filings normally made with the City Court would be made instead in Lake Superior Court in the coming year. The exemption would be ordinance violations, which Mayor Thomas McDermott Jr. is proposing be heard by a separate Ordinance Court in the city.

Under the ordinance sponsored by Dave Woerpel, D-5th, "the Hammond City Court will cease to exist on Dec. 31, 2018."

Woerpel and McDermott said their reason for eliminating the court had to do with saving perhaps $1.5 million a year in the city budget. The said the savings are needed in the wake of tax caps that could cost the city $3.5 million to $5.5 million in annual property tax revenue in 2020.

Posted by Marcia Oddi on Wednesday, January 11, 2017
Posted to Indiana Courts

Ind. Law - "Two lawmakers want to protect student journalists"

That is the headline to this story today in the Kokomo Tribune, reported by Maureen Hayden of CNHI. Some quotes:

Principals and superintendents who censor student newspapers may face new limits under a proposal to restore First Amendment rights to young journalists.

Indiana lawmakers are considering a move to reverse the effects of a 1988 U.S. Supreme Court ruling that gave school officials free rein to stop the publication of stories they deemed objectionable - even ones that meet other journalistic standards.

The bill is carried by two lawmakers with ties to journalism - Rep. Ed Clere, R-New Albany, a former newspaper reporter, and Rep. Ed Delaney, D-Indianapolis, a former newspaper lawyer who’s defended reporters in court.

Clere said student reporters have operated for too long without the freedoms afforded to professional media as their stories, or even ideas, get censored before going to print. * * *

The legislation models laws passed in several states - including Illinois, Missouri and South Dakota - with support from the Student Law Press Center.

The laws prevent high schools and colleges from operating under a precedent set by Hazelwood School District v. Kuhlmeier, the ruling that gave administrators the authority to censor most school-sponsored media.

Advocates for student journalists say the legislation is needed to ensure young journalists can report on news of public concern without interference from those who may be embarrassed by their coverage. * * *

The legislation has support from the Indiana Collegiate Press Association, whose student-members worked on the bill's language and are encouraging their local legislators to vote for it. The bill would also give student journalists at Indiana’s public universities more free speech protections that were curbed by 1988 court ruling.

ILB: For background, see this ILB post from 2006. (Be aware that none of the links are still active.)

Hazelwood was a 1988 SCOTUS decision that held the First Amendment rights of high-student journalists are not violated when school officials prevent the publication of certain articles in the school newspaper.

In 2005, in the case of Hosty v. Carter, the 7th Circuit, meeting en banc, held 7-4 that "Hazelwood extends to a university setting." The SCOTUS denied cert.

The proposal is HB 1130. Here is the introduced version. The bill is in the House Education committee.

Posted by Marcia Oddi on Wednesday, January 11, 2017
Posted to Courts in general | Ind. (7th Cir.) Decisions | Indiana Law

Tuesday, January 10, 2017

Ind. Decisions - Does the State have standing to appeal in Groth v. State?

Concerning this ILB post this morning re the Court of Appeals decision in Groth v. State, where the FWJG quoted attorney Willam Groth as saying:

Groth doesn’t believe that the Pence administration –now run by new Gov. Eric Holcomb – has standing to appeal because it won the underlying case.
An attorney reader has sent the ILB this note:
Appellate Rule 57(B). Decisions From Which Transfer May be Sought. Transfer may be sought from adverse decisions issued by the Court of Appeals in the following form ...

Although technically a win ("affirmed"), I think the decision is still arguably adverse to the State because of the way in which it won.

ILB: Another question, of course, is whether the new administration would even want to appeal.

Posted by Marcia Oddi on Tuesday, January 10, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer lists for weeks ending Dec. 30, 2016, and Jan. 6, 2017

There have been no transfer dispositions for the past two weeks, and hence, no transfer lists.

Posted by Marcia Oddi on Tuesday, January 10, 2017
Posted to Indiana Transfer Lists

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

For publication opinions today (1):

In Jacob Skipworth v. State of Indiana, a 9-page opinion, Judge Robb writes:

Following a bench trial, Jacob Skipworth was convicted of criminal confinement and strangulation, both Level 6 felonies. The trial court sentenced Skipworth to one year for each conviction, to be served concurrently. The trial court gave Skipworth 258 days’ credit for time served and ordered the remaining 107 days to be suspended to probation. As a condition of probation, the trial court ordered Skipworth to complete twenty-six weeks of domestic violence counseling, and stated if Skipworth complied with all conditions of probation, it would grant alternate misdemeanor sentencing. Skipworth now appeals, raising one issue that we expand and restate as two: (1) whether the trial court abused its discretion in ordering domestic violence counseling, and (2) whether the trial court’s oral and written sentencing statements conflict. Concluding the trial court did not abuse its discretion, but that the Sentencing Order and Abstract of Judgment contain clerical errors, we affirm and remand to the trial court to correct these errors. * * *

We conclude the trial court did not abuse its discretion in ordering domestic violence counseling. However, the trial court’s Sentencing Order and Abstract of Judgment contain clerical errors and we remand to the trial court to correct those errors.

NFP civil decisions today (0):

NFP criminal decisions today (2):

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

Christopher C. Brown v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, January 10, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Pence wins ruling on withholding records"

Yesterday's 2-1 Court of Appeals opinion in Groth v. Pence is the subject of several news stories today.

Niki Kelly reports in the Fort Wayne Journal Gazette:

The Indiana Court of Appeals ruled Monday that former Gov. Mike Pence’s staff appropriately withheld and redacted several documents in a public records dispute.

But the court rejected the governor’s claim that his response to requests under the Access to Public Records Act are immune from judicial review. Without such a finding, Hoosiers would have had no legal recourse when denied a public record by the executive branch.

The ruling said Pence made a categorical claim of executive privilege from disclosure of his records.

“The Governor’s argument would, in effect, render APRA meaningless as applied to him and his staff. APRA does not provide for any such absolute privilege, and the separation of powers doctrine does not require it,” the court found.

“We reject the Governor’s assertion that his ‘own determinations’ regarding whether to disclose public records are not subject to judicial review.”

Reporter Kelly's story continues:
The Pence case began in 2014 when the governor hired outside counsel – Barnes & Thornburg – to join a multistate suit led by Texas against President Barack Obama’s executive order providing work permits and protection from deportation to as many as 5 million immigrants in the country illegally.

Indianapolis attorney William Groth sought the attorney’s contract and invoices, as well as emails between Texas officials and Pence’s office. The documents he received were redacted or not produced, so he filed a lawsuit. As soon as the House case was decided, Pence’s attorneys submitted a new argument in the case saying the Koch case means the courts can’t get involved.

Monday’s ruling said Pence’s office turned over more than 50 pages of documents. But some of it was redacted. And Groth specifically wanted a “white paper” that was attached to an email from Texas officials looking for additional states to sign onto the lawsuit.

The appellate court reviewed that paper privately and agreed that it was a privileged attorney-client communication devoted to legal theory and strategy. The ruling also upheld redactions on the invoices.

Groth told The Journal Gazette he was pleased with the decision. The only reason he appealed it was Pence’s last-ditch effort to extend the legislative decision in the Koch case to the executive branch.

“And the court unanimously rejected his argument,” he said.

Groth said he will have to consider whether he might appeal.

He noted the decision on the white paper is a close legal question but might not be worth opening up the case for reversal on the larger separation of powers issue.

“I will have to decide whether it’s worth taking that risk,” he said.

Groth doesn’t believe that the Pence administration –now run by new Gov. Eric Holcomb – has standing to appeal because it won the underlying case.

Fatima Hussein reports in a long story in the Indianapolis Star:
An Indiana Appeals Court sided with Vice President-elect Mike Pence in ruling that an Indiana attorney does not have the right to view a political white paper that was included in a 2014 public records request.

The court, however, did not relinquish its power to second-guess the executive branch on matters of the Indiana Access to Public Records Acts.

That was an important finding because advocates of government transparency feared a Pence victory in the suit could set a broader precedent that would embolden future governors to refuse to disclose or heavily redact public documents with no court oversight.

Judge Edward W. Najam, in a 41-page opinion issued Monday, affirmed the merits of the Governor’s decision to withhold the white paper from public disclosure.

Najam added, however, "the Governor contends that his 'own determinations' under APRA are conclusive and that it would violate the separation of powers doctrine for the judiciary to 'second guess' those determinations."

"We cannot agree."

In other words, the opinion concluded that a governor's decision to deny a public records request can be reviewed by the court.

Posted by Marcia Oddi on Tuesday, January 10, 2017
Posted to Ind. App.Ct. Decisions

Ind. Courts - State of the Judiciary scheduled for Wed., January 18

From the news release:

Indiana Chief Justice Loretta H. Rush will address the Governor and a joint session of the Indiana General Assembly for the annual State of the Judiciary. The formal update on the work of the judicial branch will be held Wednesday, January 18, 2017 at 2:00 p.m. EST in the chamber of the Indiana House of Representatives.

The Chief Justice is required to provide lawmakers with an update on the “condition of the courts” according to Article 7, Section 3, of the Indiana Constitution.

The 2017 address “Praise for our Partners in Justice” will focus on the work of clerks, public defenders, prosecutors, probation officers, volunteers, advocates, law enforcement, interpreters, service providers, mentors, educators, local government officials, attorneys, and others whose contributions are vital to the success of the judicial branch.

Posted by Marcia Oddi on Tuesday, January 10, 2017
Posted to Indiana Courts

Ind. Gov't. - Decatur County Board of Zoning Appeals (BZA) denies shooting range petition

Brent Brown of the Greensburg Daily News had a very detailed story Jan. 6th on a BZA denial that is likely to be appealed. Some quotes:

GREENSBURG — Citing safety concerns, the Decatur County Board of Zoning Appeals (BZA) shot down a petition by the owners of a local rifle manufacturing company that would have allowed the proprietors to operate a shooting range for the purpose of testing precision firearms on the property.

There were few, if any, empty seats in the Decatur County Courthouse meeting room when the petition by Bell Precision Rifles was heard Wednesday night, and the issue was debated for nearly two hours by the board members, the petitioners, their attorney, friends and clients of the owners, and several neighbors living in the vicinity of the range.

In the end, board president Albert Armand, vice president Jay Hatton, and members Roger Krzyanowski, Steven Dudley and Joyce Brindley all voted against the proposal, largely on the grounds of worries concerning public safety and the owners’ alleged non-compliance with certain county ordinances.

The board’s decision prohibits the owners – and their on-site customers – from firing weapons on the range, a practice neighbors said has been taking place on the property for years, outside the bounds of a previously granted zoning petition. * * *

Guy Relford, the attorney for the Bells and an NRA certified firearms expert and trainer, said the location of the range and the precision of the weapons created and /or modified by Joseph Bell would make the 600-yard range safer than any other location in which shooting occurs in Decatur County, such as hunting areas or other rural private property.

Relford explained that the weapons are fired primarily from the prone position, with the shooter taking aim at earthen berms specifically constructed to absorb the impact of bullets. The downward angle of the shots, and the pinpoint accuracy of the weapons used, would ensure the range is as safe as possible, the attorney reasoned.

Posted by Marcia Oddi on Tuesday, January 10, 2017
Posted to Indiana Government

Ind. Courts - "Justice delayed in Lake Station's OWI cases"

Bill Dolan of the NWI Times reported yesterday in a lengthy story:

The past finally caught up with hundreds convicted of serious traffic offenses in Lake Station City Court.

The Indiana Bureau of Motor Vehicles recently announced it has imposed sanctions, including the suspension of driver's licenses, on approximately 700 drivers for serious violations that, in some cases, occurred as long as eight years ago.

This belated reckoning is the result of a long-running failure in the Lake Station City Court to report convictions of OWI (Operating a vehicle While Intoxicated), reckless driving and other traffic violations to state officials between 2008 and 2014.

LaPorte County Prosecutor John Espar, who oversaw a state police investigation, called it a "general and widespread failure" of the court's legal duty.

But no one will pay the price for justice delayed.

Espar concluded in a report made public last week that although it was clear Miranda Brakley was the city court clerk who was responsible for not sending the reports, there is no evidence she or anyone else committed bribery, official misconduct or was a ghost employee under current state law.

He said the General Assembly changed the legal definition of official misconduct in 2011 to decriminalize a public official's failure to perform official duties, and any of Brakley's failures to report convictions to the BMV prior to 2011 now are beyond the state's five-year statute of limitations. * * *

He also said that although she failed to submit convictions to the BMV as her job required, "Under current law, whether good, bad or indifferent, a public servant my not be prosecuted for official misconduct, based exclusively upon a general failure to perform a statutory duty."

Posted by Marcia Oddi on Tuesday, January 10, 2017
Posted to Indiana Courts

Monday, January 09, 2017

Ind. Decisions - Federal Judge Young makes permanent injunction against county court policy prohibiting certain employees from engaging in any "political activity"

Updating this ILB post from May 6, 2016, re the case of Allen v. Bartholomew County Court Services Dept., et al., where the federal court enjoined the application of the prohibitions of of Canon 4 of the Code of Judicial Conduct to a county court services employee who performed no judicial functions, this order issued today:

Docket Text:
ORDER on [33] Joint Stipulation - The preliminary injunction entered on May 6, 2016 [27] is to be made permanent. This entry disposes of all issues in this matter and judgment consistent with this entry will be entered. SEE ORDER. Signed by Judge Richard L. Young on 1/9/2017.

Posted by Marcia Oddi on Monday, January 09, 2017
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - More on: COA decides Pence email case, Groth v. Pence

The ILB has had a number of posts on Groth v. Pence, the email public records challenge.

Today the Court of Appeals issued its opinion.

In answer to an ILB question, William R. Groth, plaintiff in the case, replies:

Two principal observations. The COA completely rejected Pence’s contention that CAC v. Koch shields his emails or makes non-justiciable claims like this under APRA. [ILB - see opinion, beginning on p. 15] Second, today’s decision revealed a sharp split in the panel over the application of the common interest privilege to the Texas AG’s “white paper.”
Groth adds that no decision has been made yet on a petition for transfer.

Posted by Marcia Oddi on Monday, January 09, 2017
Posted to Ind. App.Ct. Decisions | Indiana Government

Ind. Decisions - COA decides Pence email case, Groth v. Pence

In Groth v. Pence, a 41-page, 2-1 opinion, Judge Najam writes:

The Indiana Access to Public Records Act (“APRA”) provides that “it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.” Ind. Code § 5-14-3-1 (Supp. 2014). Thus, in APRA our legislature declared that transparency in government is the public policy of the State of Indiana. But the public’s right of access to public records is also subject to well-recognized exceptions under APRA. * * *

We hold that, on these facts, Citizens Action Coalition does not apply to the request for public records directed to the Governor. We also hold that the trial court did not violate Groth’s due process rights. And we affirm on the merits of the Governor’s decisions to withhold the white paper from public disclosure and to partially redact the invoices. The white paper contains legal theories in contemplation of litigation, was used by the Governor in his decision to join the litigation, and is exactly the type of record that may be excluded from public access under APRA. Similarly, the Governor’s redactions from the legal invoices were within his discretion under APRA. * * *

Baker, J., concurs.
Vaidik, C.J., concurs in part and dissents in part with separate opinion. [that begins, on p. 34] I concur with the majority as to all issues except one. That is, I dissent from the majority’s conclusion that Governor Pence has met his burden of showing that the white paper is not subject to disclosure under APRA because it is a privileged attorney-client communication pursuant to the common-interest doctrine. In order for the common-interest doctrine to apply, the parties must first come to an agreement, and documents exchanged before an agreement is reached are not protected from disclosure. Here, there is no evidence in the record that Governor Pence and Texas officials reached an agreement before the white paper was emailed. As a result, I believe that the email served as a recruiting or lobbying tool by the State of Texas to encourage other states to join its legal challenge to President Obama’s executive orders on immigration. Because lobbying and soliciting are not protected by the common-interest doctrine, I believe that Governor Pence has not met his burden of showing that the white paper is protected from disclosure under APRA. * * *

The policy of APRA is to provide the public with full and complete information about the affairs of the government. Indeed, providing the public with information “is an essential function of a representative government.” I.C. § 5-14-3-1. Because the record reflects that Hodge emailed the white paper to Governor Pence’s chief of staff in order to lobby or solicit Indiana to join Texas’ legal challenge, and before any sort of agreement between Governor Pence and Texas was reached, I believe that Governor Pence has not met his burden of showing that the white paper is protected from disclosure under APRA. I would therefore reverse the trial court on this issue and order Governor Pence to produce the white paper.

Posted by Marcia Oddi on Monday, January 09, 2017
Posted to Ind. App.Ct. Decisions

Environment - "Closing IPL's toxic ponds could cost millions"

Here is a long list of the ILB's earlier posts on coal ash, dating back to 2014. The most recent post, from Dec. 22, 2016, is headed "Congress Puts States In Coal Ash Drivers' Seats."

In the newest issue of the IBJ, John Russell reports, in a lengthy, important story:

For decades, Indianapolis Power & Light Co. dumped coal ash from its power plants at Harding Street in Indianapolis and Eagle Valley in Martinsville into unlined, industrial waste ponds—a common industry practice and completely legal. Over time, the ponds grew into small lakes with high embankments, up to 50 feet deep.

Now, as IPL is ditching coal in favor of natural gas at both power plants, and with new regulations taking effect, the utility wants to close the pits, cover the tops with plastic membranes, and top them off with nearly three feet of sand and soil.

But environmental groups and some public officials are urging IPL and state regulators to consider other options. They say the “cap-in-place” technology is too risky, because the ponds are near rivers and groundwater aquifers, raising the chances of drinking-water contamination.

They want IPL to dig up the coal ash from the pits and move it to safe, lined, dry landfills away from the waterways, or send it off to be reused as building materials.

“This is an environmental problem that’s been around for a long time,” said Tim Maloney, senior policy director at Hoosier Environmental Council. “It’s like an 18th century technology.”

The issue looms large for Indiana, which leads the nation in coal ash ponds, with 84 scattered around the state, according to a recent report from Maloney’s group.

Statewide, the ponds have had at least 13 documented cases of ash spills and other documented cases of groundwater contamination. One of the worst was a spill of 60 million gallons of coal ash into the West Fork of the White River near Martinsville in 2007 and 2008 when a levee failed at IPL’s Eagle Valley power plant.

Posted by Marcia Oddi on Monday, January 09, 2017
Posted to Environment

Courts - "First criminal trial in deadly meningitis outbreak to begin"

That is the headline to this story today by Stacey Barchenger in The Tennesssean. Some quotes:

Peay was one of about 750 people nationwide sickened by fungal meningitis attributed to tainted steroid injections made by a Massachusetts pharmacy in 2012. Seventy-six people died in the outbreak, according to an investigation by the U.S. Food and Drug Administration.

Now, after a lengthy federal probe and two years of legal battling, Peay and other victims are anxiously watching as the first pharmacy executive goes to trial on criminal charges.

Facing a jury is Barry J. Cadden, the director of the New England Compounding Center who is charged with 25 counts of second-degree murder connected to deaths in seven states and other crimes. He and 13 other company executives and pharmacists were indicted in 2014.

Opening statements are scheduled to begin Monday in federal court in Boston.

The story links to the indictment.

The story points out that there were 11 deaths in Indiana, per the CDC.

The ILB recalls this related Indiana COA opinion in a civil suit, filed Nov. 7, 2016, that began:

Beginning in 2012, patients around the country began suffering meningitis after being injected with preservative-free methylprednisolone acetate (“MPA”), a steroid purchased from New England Compounding Pharmacy, Inc., a/k/a the New England Compounding Center (“NECC”). It was soon discovered that some lots of MPA had become contaminated with fungus. This consolidated appeal concerns claims brought by injured patients (or those suing on their behalf) (collectively, “the Plaintiffs”) against Anonymous Clinic in St. Joseph County and Orthopedic and Sports Medicine Center of Northern Indiana (“OSMC”) and affiliated entities in Elkhart County (collectively, “the Defendants”). Plaintiffs contend that the Defendants were negligent in choosing to administer preservative-free MPA and in failing to properly evaluate NECC before using it as a supplier.

Posted by Marcia Oddi on Monday, January 09, 2017
Posted to Courts in general

Ind. Decisions - "COA OKs gun evidence in trial on non-gun charges"

Dan Carden of the NWI Times reported this weekend on two 2-1 COA opinions, involving the two co-defendants, both issued Dec. 29, 2016 (the 6th and 7th opinions summarized here by the ILB). The story begins:

Should a jury be told that a person on trial possessed a gun while allegedly committing a crime, if the gun was not used in the incident and is not directly connected to the charges?

That question, of the potentially prejudicial effect of legally carrying a gun, recently resulted in a sharply divided opinion by a three-judge panel of the Indiana Court of Appeals.

Posted by Marcia Oddi on Monday, January 09, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Drug crimes dominate federal sentences in Southern Indiana"

Mark Wilson reported this weekend in the Evansville Courtier & Press in a long story that begins:

New court statistics show a growing percentage of prisoners sentenced for federal drug crimes in Southern Indiana are heroin offenders.

Heroin accounted for 12.9 percent of the sentences for federal drug crimes in Southern Indiana during the federal government's 2015 fiscal year, up from 5 percent in 2014, according to a U.S. Sentencing Commission report. The report compiles data from every district court in the nation from Oct. 1, 2014 to Sept. 30, 2015.

The trend appears to have continued in 2016 with no immediate signs of slowing. It's yet another indicator of Indiana's emerging problem with opioid drugs, including both prescription painkillers and heroin.

"In terms of percentage of cases, we are going to see an increase in heroin cases," said Josh Minkler, United States District Attorney for Southern Indiana.

However, methamphetamine cases still overwhelmingly account for the greatest percentage of drug offense sentences in the U.S. District Court for the Southern District of Indiana, which covers 60 counties from Indianapolis to the Ohio River.

Methamphetamine offenses accounted for 51.4 percent of drug crime sentences in federal court for Southern Indiana in 2015, up from 42 percent of drug sentences in 2014. Marijuana accounted for 20.7 percent of federal drug sentences in 2015 compared to 16 percent in 2014.

Sentences for cocaine have dropped dramatically, from 28.6 percent of federal drug sentences in 2014 to just 4.3 percent in 2015.

Posted by Marcia Oddi on Monday, January 09, 2017
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Editorial: Ideology shouldn’t trump safety"

Updating this ILB post from Jan. 4th, which pointed out that "On Gov. Mike Pence’s first day in office, he signed an executive order creating a moratorium on state rules and regulations," the IBJ has a great editorial in its latest issue:

At nearly the last possible moment, outgoing Gov. Mike Pence reversed course and extended rules that dictate the minimum standards builders must use for insulation, heating and air, and lighting systems in commercial buildings and apartments.

That was the right decision.

But it wasn’t clear Vice President-elect Pence was going to make it.

Just a week earlier, a spokesman for the Indiana Department of Homeland Security said Pence planned to let the rules expire, an irresponsible move critics say would have let unscrupulous builders skimp on energy-related systems in a way that could have left unknowing buyers and tenants with ridiculously high utility bills and perhaps even unsafe conditions.

We don’t know exactly what Pence was thinking. We can presume his zeal for reducing government regulations was at play here. After all, Pence imposed a moratorium on all rule-making—with exceptions for health and safety regulations—when he took office four years ago.

But we don’t really know. His office declined to comment, referring questions instead to the Department of Homeland Security, which oversees the code. The spokesman there provided an unsatisfactory—and factually inaccurate—excuse that the code could not be renewed because two outside groups had requested changes.

Yes, those changes—if the agency decided to go along with them—could have meant a longer process for passing new standards. But it was clear then that the governor could extend the existing rules for one year while those changes were underway, which is exactly what he did on Dec. 28, three days before the energy code was to expire and to the relief of many conscientious builders, architects and developers in the construction industry.

But this was not some isolated incident caught just in time to correct.

A year ago, the Pence administration let expire the emergency rules that had been put in place after the deadly Indiana State Fair stage collapse in 2011, leaving the state vulnerable to another disaster.

One member of the State Fire Prevention and Building Safety Commission, which votes on the rule, told IBJ the Pence administration had eliminated key legal and administrative staff positions once in place to review and update codes. He called for the governor to provide the commission “with adequate staff so we can do our job.”

We’re not sure what’s scarier—that Pence would choose deregulation at the expense of Hoosiers’ safety or that he’s pared state agencies down so far that there isn’t the staff available to handle what are basic duties of government.

Posted by Marcia Oddi on Monday, January 09, 2017
Posted to Indiana Government

Ind. Courts - "Is a law enforcement agency liable for off-duty officers?"

The case of Harrison County Sheriff's Department v. Leandra Ayers, which is being argued Tuesday before a panel of the Court of Appeals (see this morning's Upcoming Oral Arguments post) is the subject of a story today in the Indianapolis Star, reported by Madeline Buckley. It begins:

An Indiana sheriff's deputy in 2009 was arguing with his wife at his home, court documents say. She threatened to kill herself. He replied, "fine," and removed his personal gun from his belt and laid it on the bed. Then he left the room.

Moments later, John Britton, a deputy with the Harrison County Sheriff's Office, heard a shot. His wife, Christine, fell off the bed.

What's clear: Britton violated criminal law. A grand jury indicted him for assisting a suicide and he pleaded guilty to criminal recklessness.

What's not clear: Whether the Harrison County Sheriff's Office should be held responsible for Britton's actions.

In February, a jury decided it should. It awarded a $1.2 million verdict to Leandra Ayers, Christine Britton's daughter from a previous relationship. Now, the county is appealing the money judgment. The Indiana Appeals Court on Tuesday will hear oral arguments in the case.

It's a case that could have far-reaching implications for law enforcement agencies in Indiana, the attorneys for Harrison County argued in a brief. A central question: Is a law enforcement agency liable for the actions of sworn officers when they are off-duty?

Posted by Marcia Oddi on Monday, January 09, 2017
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Mary Harper now longest-serving female state court judge"

Bob Kasarda reported this weekend in the NWI Times. The long story begins:

Porter Circuit Court Judge Mary Harper was in her final semester of law school when her grandfather was murdered while walking to church in South Bend.

Those believed responsible for the killing were released when witnesses refused to testify, she said.

"I thought that was so wrong," Harper said. "I decided to work in social justice."

She went on to become the county's first female deputy prosecutor, first female chief deputy prosecutor, first female county judge, first female superior court judge and first female circuit court judge. Now 32 years later, she has become the longest-serving female state court judge in Indiana's history.

"I've got a little grandfather on my shoulder," she said, who reminds her to "be fair, be just."

"I felt guided through my whole career," Harper said.

Harper, who believes women have it much easier these days in the area of law, is a graduate of the Valparaiso University School of Law, which she completed in an accelerated two and a half years.

The South Bend native decided to remain in Porter County and said she went to work in 1975 at the local prosecutor's office.

"It was the prosecutor's office or go work for a bank in South Bend," she said.

She worked her way up to the chief deputy post before leaving in 1981 to pursue a private legal practice where she found herself on the opposite side of the courtroom, defending those she had been seeking to lock up.

"It's a big switch," Harper said.

She took another big leap in 1984 by running against and defeating incumbent judge and fellow Republican Terry Johnston.

After winning a general election challenge against Democrat Thomas Webber, who later made it to the bench himself, Harper spent the next 12 years handling small claims and misdemeanor cases before running for her current circuit court seat that was left open by the retirement of Raymond Kickbush.

"When he was announcing, I was down filing (as a candidate) in Indianapolis," she said.

The leap to circuit court, which she has held on to through three additional elections, put more serious, felony-level cases before her. But what drew her to seek out the post was its role in running the county's juvenile system.

Posted by Marcia Oddi on Monday, January 09, 2017
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/9/17):

Thursday, January 12

Next week's oral arguments before the Supreme Court (week of 1/16/17):

Thursday, January 19

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/9/17):

Tuesday, January 10 Thurssday, January 12 Friday, January 13

Next week's oral arguments before the Court of Appeals (week of 1/16/17):

Thursday, January 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, January 09, 2017
Posted to Upcoming Oral Arguments

Friday, January 06, 2017

Ind. Decisions - Posner opinion, begins "A very unusual case, this"

In Reginald Hart v. Amazon.com, Incorporated (ND Ill.), a 4-page opinion, Judge Posner writes:

A very unusual case, this. The plaintiff, unrepresented by counsel (the district judge had recruited counsel initially, who, however, upon discovering that the suit was groundless, requested and was allowed to withdraw from the case, leaving the plaintiff to proceed pro se), has sued Amazon, claiming that it permitted third par‐ ties to advertise on its website six counterfeit copies of books called Vagabond Natural and Vagabond Spiritual that the plain‐ tiff had written and self‐published (that is, published himself rather than handed to a publisher). * * *

He claims to have been surprised and angered to discov‐ er that hard‐cover copies of both books were being adver‐ tised on Amazon by booksellers to whom he had not (he says) sent any copies of his books. He says he learned that a cousin of his had purchased a copy of each of his books ad‐ vertised (without his authorization) on Amazon. He has sued Amazon on a variety of grounds, but all amounting to alleging a theft of his intellectual property after Amazon re‐ fused his repeated requests to remove the advertisements for the books from Amazon’s website (though eventually, re‐ lenting, Amazon did remove them). * * *

Granted, there is counterfeiting of books (especially text‐ books), in which Amazon may be involved to the extent of advertising and selling such books, though without neces‐ sarily knowing they’re counterfeit. See, e.g., Eliza Green, “The Problem of Fake Books on Amazon,” May 9, 2012, http://elizagreenbooks.com/the‐problem‐of‐fake‐books‐on‐ amazon/ (visited Dec. 24, 2016, as was the next website cit‐ ed). But counterfeiting can’t be presumed. For example, “all of the apparent copycat books that Fortune found on Ama‐ zon were made through CreateSpace, which is a division of Amazon.” Mario Aguilar, “Amazon Is Overrun With a Plague of Bestseller Knockoffs,” April 16, 2012, http://gizmodo.com/5902283/amazon‐is‐overrun‐with‐a‐plag ue‐of‐fake‐books. Hart’s obscure self‐published titles are a far cry from the pirated bestsellers regularly found on Ama‐ zon, and his assertion that the Internet giant must have un‐ dertaken the cost of reproducing his hardcover books be‐ cause they were “not sourced” by him and lack his nail in‐ dentations (when neither do his self‐published books, if one may judge from the photos) doesn’t meet even a minimum standard of plausibility. The judgment of the district court dismissing his suit with prejudice is therefore AFFIRMED.

Posted by Marcia Oddi on Friday, January 06, 2017
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Mario Deon Watkins v. State of Indiana, a 24-page, 2-1 opinion, Judge Brown writes:

Mario Deon Watkins appeals his convictions for two counts of possession of a controlled substance as class A misdemeanors, possession of cocaine as a level 6 felony, possession of marijuana as a class B misdemeanor, and maintaining a common nuisance as a level 6 felony. Watkins raises two issues, one of which we find dispositive and which we revise and restate as whether the court abused its discretion or erred in admitting evidence discovered as a result of a search. We reverse. * * *

Comparing the factors, we conclude that while there was a considerable degree of suspicion, the extent of law enforcement needs for a military-style assault was low and the degree of intrusion was unreasonably high. Under these specific circumstances and particularly in light of the use of a flash bang grenade in the same room as a nine-month old baby who was “very close” to where the flash bang was deployed, the State has not demonstrated that the police conduct was reasonable under the totality of the circumstances. We conclude that the search violated Watkins’s rights under Article 1, Section 11 of the Indiana Constitution and that the trial court erred in admitting the evidence discovered as a result of the search.

To the extent the State suggests that we adopt the inevitable discovery exception as a matter of Indiana constitutional law, we observe that under the Fourth Amendment, the inevitable discovery exception to the exclusionary rule “permits the introduction of evidence that eventually would have been located had there been no error, for [in] that instance ‘there is no nexus sufficient to provide a taint.’” However, the inevitable discovery exception has not been adopted as a matter of Indiana constitutional law. Ammons v. State, 770 N.E.2d 927, 935 (Ind. Ct. App. 2002), trans. denied. The Indiana Supreme Court has held that “our state constitution mandates that the evidence found as a result of [an unconstitutional] search be suppressed.” Despite the State’s request, we are not inclined to adopt the inevitable discovery rule as part of Indiana constitutional law in light of the Indiana Supreme Court’s firm language. [ILB: citations omitted]

For the foregoing reasons, we reverse Watkins’s convictions. * * *

Baker, J., concurs.
May, J., dissents with separate opinion. [that begins, at p. 22] Unlike my colleagues, I would hold the search of Watkins’ residence was reasonable under the totality of the circumstances. I therefore respectfully dissent.

NFP civil decisions today (0):

NFP criminal decisions today (0):

Posted by Marcia Oddi on Friday, January 06, 2017
Posted to Ind. App.Ct. Decisions

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

Updating this Dec. 22, 2016 ILB post quoting an IBJ story by Hayleigh Colombo, and then continuing with ILB remarks ("What is the Problem Here?") that concluded this was a "Sunset" statute issue that could be resolved ("Problems resulting from the overarching sunset statute have occurred in the post."), a story yesterday from the ILB staff is headed: "Pence extends minimum energy standards for buildings." Some quotes:

Gov. Mike Pence has signed an executive order extending the state’s energy code for one year, a move that ensures developers of commercial buildings and apartments meet minimum standards for insulation, heating and air, and lighting.

Pence signed the order on Dec. 28, just days before the code was to expire and a week after critics said failing to do so could let unscrupulous builders cheat tenants and others of basic protections against weather.

In his executive order, Pence said the expiration of the rule would cause “an emergency to exist and creates a danger to commercial structures since they will not have energy compliance rules in place.”

The story also reports that:
... the homeland security department is continuing to work on new outdoor event equipment rules that were prompted by the Indiana State Fair stage collapse in 2011, Erickson said.

Emergency rules put in place immediately after the incident, which killed seven people and injured dozens more, expired roughly a year ago, IBJ reported last month. [ILB post here and here] Those rules had established stricter design and construction requirements for outdoor event equipment such as stage rigging.

Posted by Marcia Oddi on Friday, January 06, 2017
Posted to Indiana Government | Stage Collapse

Ind. Decisions - "Are college athletes the same as prisoners? These judges seem to think so"

"These judges" referred to in this Washington Post headline to a column by Sally Jenkins are on the 7th Circuit. The case is Berger v. NCAA, decided Dec. 5, 2016 (ILB summary here). A few quotes from the column:

The case is called Berger v. NCAA, and in it, some former track runners from Penn contended that athletes put in enough work at universities to be entitled to minimum wage under the Fair Labor Standards Act. It’s one of a raft of cases seeking pay for college athletes, and it wouldn’t stand out except for the obnoxious grounds on which it has been summarily dismissed by a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit, the NCAA’s home court. The majority opinion reasoned that college athletes have no more right to ask whether they might be employees than inmates laboring in jails. A plea for a rehearing en banc was rejected by the Seventh Circuit Wednesday night.

Posted by Marcia Oddi on Friday, January 06, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Boone County donates $10,000 to fund amicus brief in pivotal tax court appeal"

Rod Rose of the Lebanon Reporter writes this morning in a lengthy story that begins:

Funds are being sought from the state's cities, towns and counties to help pay for an appeal of the Indiana Tax Court’s September decision that slashed the tax value of a Howard County Kohls store.

The Indiana Court of Appeals upheld the tax court’s decision. Howard County is asking the Indiana Supreme Court to hear an appeal, county attorney Bob Clutter said.

At issue is whether property tax values on a “big box” store — any building larger than 500,000 square feet — can be based on the value used for a vacant store — a so-called “dark box.”

Officials at the local level fear that should Kohls’ argument remain unchallenged, it could have a devastating impact on the budgets of cities, towns and counties.

Tuesday, the Boone County Commissioners authorized a $10,000 contribution for an amicus brief to be filed if the Supreme Court agrees to take the case. That brief would be written by Accelerating Indiana Municipalities (formerly the Indiana Association of Cities and Towns) and the Indiana Municipal Lawyers Association. An amicus is an impartial advisor to a court case.

ILB: This is the latest in a long list of posts on the big box/dark box issue. This post, from Dec. 20, 2016, quoted the Bloomington Herald-Times story that:
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. * * *

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.

Posted by Marcia Oddi on Friday, January 06, 2017
Posted to Indiana Courts | Indiana Government

Thursday, January 05, 2017

Law - Ohio Gov. Kasich signs bill limiting use of civil forfeiture

The ILB has had a long list of entries on civil forfeiture at the state and federal level, including most recently, on Dec. 29th, "Jeff Sessions and Civil Forfeiture."

Today, via a news release from the Heartland Institute, this news and quote for attribution from Jesse Hathaway, their Research Fellow, Budget & Tax Policy:

Ohio Gov. John Kasich (R) yesterday signed into law House Bill 347, which would require law enforcement agencies to seek a criminal conviction before a person’s property is forfeited over to the government. The legislature had passed the measure, with little opposition, on December 9.

“With Gov. John Kasich’s (R) signing of House Bill 347, Ohio joins a growing number of states – including California, Nebraska, New Mexico, and Wyoming – in protecting taxpayers’ due-process and property rights.

“Reducing perverse economic incentives, the new law prohibits local governments from using the U.S. Department of Justice’s ‘equitable sharing’ program as a loophole to bypass constitutional protections on property rights in most cases, while still allowing government law enforcement agents to perform their duties and protect people.

“Government law enforcement should not be financially motivated, but motivated by a desire to protect and serve taxpayers. Civil asset forfeiture creates an economic incentive to engage in the forfeiture process, perverting the law. This measure reduces that incentive to do wrong and will help protect against the possibility of abuse.

“This is a step towards removing the profitability of violating an individual’s inherent property rights, and lawmakers in other states should look to Ohio for ideas on how to solve the civil asset forfeiture problem in their communities.”

And an earlier story from OhioWatchdog.org:
A bill designed to curb civil forfeiture practices in Ohio is set to pass next week despite opposition from the state’s law enforcement community.

The U.S. Justice Action Network, a coalition of conservative and progressive organizations, and fellow proponents of the bill appear to be closing in on victory after an eighteen-month battle for reform.

The bill, which passed the state House in May, is expected to see a Senate vote next week. Originally the bill would have eliminated the practice of civil forfeiture entirely. Opposition from prosecutors and police chiefs pushed lawmakers to amend the measure to allow for the seizure of assets valued at more than $25,000.

Posted by Marcia Oddi on Thursday, January 05, 2017
Posted to General Law Related

Ind. Gov't. - House Democratic leader endorses binding citizen initiative and referendum

Dan Carden reports today for the NWI Times that:

House Democratic Leader Scott Pelath, D-Michigan City, wants Hoosiers to take a more active role in deciding state policies.

He filed a constitutional amendment Wednesday to establish a binding citizen initiative and referendum process for proposing and enacting new laws or constitutional amendments, and enabling Hoosiers to reject statutes approved by the General Assembly.

The measure, HJR 1(2017) [to be available at this link shortly]:
permits a citizen-initiated law or constitutional amendment to go on the ballot for enactment, or a referendum be held on an existing law, if supporters gather petition signatures equal to 2 percent of the total votes cast in the most recent election for secretary of state.

That would be 26,700 signatures based on voter participation in the 2014 secretary of state contest.

If a majority of voters support the initiative or referendum at the next election, the proposal would take effect five days after the results are certified.

ILB: Some might say, be careful what you wish for ...

Posted by Marcia Oddi on Thursday, January 05, 2017
Posted to Indiana Government

Ind. Decisions - "Judge Rejects Changes to Indiana Birth Certificate Ruling"

Updating this most recent ILB post from Aug. 16, 2016, Marcie Shields of Courthouse News provides comprehensive coverage of the latest action, a ruling issued Dec. 30th by Judge Tanya Walton Pratt. The Jan. 4th story, which includes links to all the documents, begins:

INDIANAPOLIS (CN) – A federal judge in Indiana declined to amend her earlier ruling that the state must name both same-sex parents on their child’s birth certificate, not just the birth mother.

Indiana Attorney General Greg Zoeller filed a motion on behalf of the Indiana State Health Commissioner to amend a June 2016 judgment in favor of eight female same-sex couples who brought discrimination and civil rights claims against the state.

The motion stems from a federal lawsuit filed in 2015 in Indianapolis federal court, in which the lesbian couples claimed Indiana violates their constitutional rights regarding the information included, and excluded, on their children’s birth certificates.

Posted by Marcia Oddi on Thursday, January 05, 2017
Posted to Ind Fed D.Ct. Decisions

Wednesday, January 04, 2017

Ind. Courts - Pence appoints citizen member to Judicial Nominating Commission

Molly Kitchell, Zionsville, who served on the Judicial Nominating Commission from 1/1/11 to 12/31/13 as a citizen member, has just been appointed by Governor Pence to another term, beginning 1/1/17. (Appointees may not serve consecutive terms.) Kitchell replaces David Tinkey, Brownsville, who term expired 12/31/16. See this June 9, 2015 post.

Posted by Marcia Oddi on Wednesday, January 04, 2017
Posted to Indiana Courts

Ind. Courts - Discipline charges filed against Senior Judge T. Edward Page [Updated]

Here is the news release:

The Judicial Qualifications Commission (JQC) has filed disciplinary charges against Senior Judge T. Edward Page. JQC alleges one count of judicial misconduct related to an Operating a Vehicle While Intoxicated conviction. Judge Page has 20 days to file an answer to the charges.

The 4-page "Notice of the Institution of Formal Proceedings and Statement of Charges" is public record and has been filed with the Appellate Clerk’s Office. The charges are brought by the 7-member Commission which investigates alleged ethical misconduct by judges. They are separate and distinct charges from any criminal or civil proceedings in the trial court system.

Generally, the disciplinary charges assert Judge Page violated judicial canons which require judges to respect the law, avoid impropriety, and promote confidence in the judiciary. In November 2016 Judge Page pled guilty in case 64D03-1610-CM-009279 to Operating a Vehicle While Intoxicated, a Class C misdemeanor. The conviction stems from a Porter County traffic stop.

The Supreme Court has final authority to determine what, if any, judicial misconduct occurred. The Court can dismiss the charges, accept or reject a disciplinary agreement between JQC and Judge Page, appoint a panel of judges to conduct a public hearing, impose a fine, or impose sanctions ranging from a reprimand to a suspension to a permanent ban on holding judicial office in Indiana.

[Updated at 6:00 p.m.] Here is more, via a story from the Gary Post-Tribune.

Posted by Marcia Oddi on Wednesday, January 04, 2017
Posted to Indiana Courts

Ind. Decisions - "Court says IU South Bend professor who filed suit wasn't defamed: IU found another professor responsible for plagiarism"

Peter Aghimien and Mable Aghimien v. Mark Fox, an August 10, 2016 NFP Court of appeals decision that the ILB briefly summarized at the time, is the subject of a long, interesting story today in the South Bend Tribune, reported by Margaret Fosmoe. A sample, but you will need to read it in the context of the whole story:

His name cleared of the cloud of plagiarism, [Peter] Aghimien and his wife, Mabel Aghimien, in 2014 filed a civil lawsuit against [Mark] Fox, alleging defamation, interference with business relationship, infliction of emotional distress and loss of consortium.

In December 2015, Judge Michael G. Gotsch of St. Joseph Circuit Court granted Fox summary judgment in the case. He ruled that Fox's emails and blog posts were not defamatory, because there was evidence that plagiarism had occurred and Fox's allegations had merit.

Gotsch also said the standard for a defamation finding requires evidence of malice, and that the plaintiff failed to show that Fox made the allegation with malice. By creating the blog and providing sources that could lead a reader to believe his own presumption, Fox was able to demonstrate his claims while not expressing an opinion, the judge wrote.

It is obvious that Fox made "snarky, obnoxious, and critical comments" in his email, but he wrote the comments to make a contentious point about the management and direction of the accounting department, Gotsch wrote.

The Aghimiens appealed the case, and the Indiana Court of Appeals in August affirmed the lower court ruling in favor of Fox. The Indiana Supreme Court in December declined to hear the case, so the ruling stands.

Claims of professional misconduct at a state university are a matter of public concern, so the actual malice standard applies in the case, the Appeals Court said. It appears that in the email Fox sent, he was expressing a good-faith opinion about what he viewed as misconduct, the court concluded. And the Aghimiens didn't provide any countervailing evidence to indicate that Fox falsely or recklessly accused Aghimien of plagiarism.

Posted by Marcia Oddi on Wednesday, January 04, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Troubling lapse: State loses sight of fairground tragedy lessons"

Following on Hayleigh Colombo's important ILB story last week, the Fort Wayne Journal Gazette had this editorial yesterday. Some quotes:

Investigations after the stage collapse revealed serious omissions in requirements for equipment at outdoor events. State officials wisely drafted emergency rules to ensure such a disaster was not repeated.

Incredibly, those emergency rules expired a year ago. The Indiana Department of Homeland Security has begun the permanent rule-making process, but it could take as long as two years.

Craig Von Deylen, a member of the State Fire Prevention and Building Safety Commission, told the Indianapolis Business Journal he was disappointed that Gov. Mike Pence’s administration “let the rule lapse.” The commission could have noted the impending expiration of the emergency rules and ensured permanent rules were in place, had it been provided with adequate staff for the task.

“People died in an incident in the state prior to that rule,” Von Deylen told IBJ. “It cost the state a considerable amount of money in both legal fees and settlements.”

He said the building safety commission is behind on its work because key legal and administrative staff positions responsible for reviewing and updating the codes have been eliminated.

Those positions were eliminated under an administration that proudly noted it closed out the 2015 fiscal year with a $210 million surplus and $2.14 billion in reserves.

“I was extremely surprised and disheartened to learn that the administration allowed these safety rules to lapse without bringing it to the attention of the General Assembly,” Senate Minority Leader Tim Lanane said in a news release. “The outdoor stage safety rules were a bipartisan effort to ensure tragedies like the 2011 Indiana State Fair collapse will not happen again.”

The Anderson Democrat said he will file legislation to extend the temporary rules, which already had been extended once by lawmakers.

“In the interest of public safety, I now urge Gov. (Mike) Pence and Gov.-elect (Eric) Holcomb to act swiftly and provide the staffing and resources necessary to make the rules permanent as soon as possible,” Lanane said.

ILB: Note the paragraph above, highlighted by the ILB. An earlier, Dec. 22nd story by reporter Columbo reported that the Fire Prevention and Building Safety Commission (part of the Homeland Security Dept.) was unable to deal with the statutory-required state process of readopting rules every 7 years, or allowing them to "sunset", and that as a result "The state’s energy conservation code—which covers commercial buildings and apartments and sets minimum energy standards—expires Dec. 31."

The current administration vowed to reduce or eliminate "restrictive rules and regulations." For example, see this FWJG story from June 24, 2013, that begins:

On Gov. Mike Pence’s first day in office, he signed an executive order creating a moratorium on state rules and regulations.
All the state agencies responsible for the state's various building codes are in this same department, Homeland Security, and likely are facing the same constraints.

Posted by Marcia Oddi on Wednesday, January 04, 2017
Posted to Indiana Government | Stage Collapse

Ind. Decisions - "Girlfriend cheats way out of [property interest], court says"

Last Friday's Court of Appeals opinion in Tina L. Hemingway v. John P. Scott (ILB summary here) was the subject yesterday of a story in the Indianapolis Star reported by Fatima Hussein. The story begins:

Eight years into their relationship, John Scott decided to add his girlfriend's name to the title of 10 acres he had long since inherited. But the Madison man had a condition: She couldn't cheat on him.

And they put it in writing.

About two months after they signed the handwritten contract, his girlfriend, Tina Hemingway, became pregnant. By another man.

Their relationship was about to end. Their court battle was about to begin.

Hemingway delivered the child in January 2013. She moved out in early June 2013, and that same month, Scott sent Hemingway written notice that she was in breach of the contract and must return her interest in the property to him, according to court documents.

Hemingway filed a suit to partition the property, and subsequently, Scott filed a counterclaim for breach of contract.

Scott won round one last year when Jefferson Circuit Court judge Darrell M. Auxier ruled in his favor. Hemingway filed an appeal in April.

Posted by Marcia Oddi on Wednesday, January 04, 2017
Posted to Ind. App.Ct. Decisions

Tuesday, January 03, 2017

Ind. Decisions - 7th Circuit issues two more Indiana-related opinions late this afternoon

In Dee Frye v. Auto-Owners Insurance Company (ND Ind., Lozano), a 13-page opinion, Judge Flaum writes:

Dee Frye was injured in a car accident caused by an underinsured driver. Frye sued his insurance company for coverage, and the parties reached a partial settlement, but Frye thought he was entitled to additional payments under the policy. The district court disagreed, and awarded summary judgment to the insurer. Frye appeals, and for the reasons that follow, we reverse the decision of the district court. * * * Frye argues that § 27-7-5-2 of the Indiana Code obligates insurers who provide UIM coverage to provide such coverage in amounts equal to the limits of liability for bodily injury in general. Thus, says Frye, although the umbrella policy here purported to cap Auto-Owners’s UIM liability at $1 million, the statute required a UIM liability limit equal to the policy’s general per-incident limit of $5 million. * * *

Section 27-7-5-2(d) allowed Auto-Owners to abstain from providing UIM coverage in the umbrella policy issued to Frye’s employer. Once the insurance company elected to afford such coverage, however, it was required under § 27-7-5-2(a) to provide that coverage in limits equal to or greater than the policy’s general liability limit: $5 million. We thus agree with Frye that the latter limit applies here by operation of statutory law. * * *

For the foregoing reasons, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

In Patriotic Veterans, Incorporat v. State of Indiana(SD Ind., Lawrence), a 6-page opinion, Judge Easterbrook writes [ILB emphasis]:
Plaintiff, a veterans’ group, contends that an anti-robocall statute, Ind. Code §24-5-14-5, violates the First Amendment to the Constitution, applied to the states by the Fourteenth Amendment. The Telephone Consumer Protection Act, 47 U.S.C. §227, which contains a similar limit, has been sustained by two circuits. See Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014), affirmed on other grounds, 136 S. Ct. 663 (2016); Van Bergen v. Minnesota, 59 F.3d 1541, 1549–56 (8th Cir. 1995); Moser v. FCC, 46 F.3d 970 (9th Cir. 1995). The same circuits have approved state laws as well. See Van Bergen (sustaining a Minnesota law in addition to §227); Bland v. Fessler, 88 F.3d 729 (9th Cir. 1996) (California law). But relying on Cahaly v. LaRosa, 796 F.3d 399 (4th Cir. 2015), which found South Carolina’s antirobocall law to be unconstitutional, plaintiff maintains that Reed v. Gilbert, 135 S. Ct. 2218 (2015), made these decisions obsolete and dooms both state and federal anti-robocall statutes as instances of content discrimination. We disagree with that contention and conclude that Indiana’s law is valid. * * *

Everyone has plenty of ways to spread messages: TV, newspapers and magazines (including ads), websites, social media (Facebook, Twitter, and the like), calls from live persons, and even recorded spiels if a live operator first secures consent. Plaintiff can ask its donors and potential donors to agree to receive robocalls. Preventing automated messages to persons who don’t want their peace and quiet disturbed is a valid time, place, and manner restriction. Other circuits’ decisions, which we have cited, spell out the reasoning; repetition would be otiose. Because Indiana does not discriminate by content—the statute determines who may be called, not what message may be conveyed—these decisions have not been called into question by Reed. AFFIRMED

Posted by Marcia Oddi on Tuesday, January 03, 2017
Posted to Ind. (7th Cir.) Decisions

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

In Duane Turner v. Richard Brown (SD Ind., Lawrence), a 9-page opinion, Judge Flaum writes:

Duane E. Turner has filed a petition for a writ of habeas corpus in federal court raising claims of ineffective assistance of counsel in challenging his sentence for murder. The district court denied his petition as untimely, concluding that the last day on which Turner could have filed his federal habeas petition was September 23, 1998, one year after his murder conviction and sentence became final. We granted a certificate of appealability, asking the parties to address whether Turner’s petition was timely filed under Jimenez v. Quarterman, 555 U.S. 113 (2009). For the reasons that follow, we affirm the district court’s denial of the petition as untimely, * * *

As the petition is time‐barred, we need not address the merits of Turner’s ineffective‐assistance claims.

Posted by Marcia Oddi on Tuesday, January 03, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Tax Court posts one, filed Dec. 30

In Lake County Trust Co., Trust No. 6, (Flowers for Heaven, Inc.) v. St. Joseph County Assessor, a 4-page opinion, Judge Wentworth concludes:

[T]he Court finds that an objection to the untimely filing of the certified administrative record in an appeal from a final determination of the Indiana Board must itself be filed before the merits of a case have been furthered. Here, the Assessor filed its Motion after the Trust filed its brief; at that point, however, the merits of the case had already been furthered. Consequently, the Assessor waived its objection to the Trust’s untimely filing of the certified administrative record.

CONCLUSION. For the foregoing reasons, the Court DENIES the Assessor’s Motion.

Posted by Marcia Oddi on Tuesday, January 03, 2017
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Supreme Court decides one today, re question of federal preemption of state's statute of limitations

In Kennedy Tank & MFG. Co., Inc., and Hemlock Semiconductor Operations LLC and Hemlock Semiconductor, LLC v. Emmert Industrial Corporation d/b/a Emmert International, an 11-page, 5-0 opinion, Chief Justice Rush writes:

After Emmert Industrial Corporation (“Emmert”) successfully transported an enormous process tower vessel from Indiana to Tennessee, the vessel’s manufacturer—Kennedy Tank & Manufacturing Company (“Kennedy”)—refused to pay nearly $700,000 in unforeseen transportation expenses. Emmert attempted to collect, but Kennedy still had not paid by the time a federal statute of limitations expired. Emmert eventually sued for breach of contract and unjust enrichment, and Kennedy raised the federal statute of limitations as an affirmative defense, arguing it preempts Indiana’s longer limitations period. On this issue of first impression, we disagree with Kennedy and hold that Indiana’s ten-year statute of limitations is not preempted. Emmert’s collection claim may therefore proceed. * * *

The ICCTA’s eighteen-month statute of limitations does not preempt Indiana’s ten-year statute of limitations governing breach of contract claims. Congress’s purpose was not to preempt state statutes of limitations, and Indiana’s statute of limitations does not do major damage to the ICCTA’s deregulatory purpose. Kennedy and Hemlock, therefore, have not carried their burden to establish preemption. We affirm the trial court.

Posted by Marcia Oddi on Tuesday, January 03, 2017
Posted to Ind. Sup.Ct. Decisions

Law - Fascinating story on finanical regulation specialist tapped by Trump

"How Trump’s Regulation Skeptic Helps Wall Street Navigate the Rules: Paul Atkins, tapped by Donald Trump to oversee his early financial deregulation strategy, has spent seven years counseling clients on how to influence regulators," a long $$ story dated Dec. 31st, reported by Dave Michaels, that appears in today's print WSJ (B7), gives insight on a niche regulatory speciality. It begins:

WASHINGTON—Paul Atkins is Wall Street’s regulation whisperer.

The man tapped by President-elect Donald Trump to oversee his early financial deregulation strategy has spent the past seven years counseling clients how to influence regulators—sometimes charging $1,200 per hour for the advice, according to people familiar with the matter.

Mr. Atkins founded his behind-the-scenes consulting business, Patomak Global Partners LLC, in the garage of his suburban Washington home in 2009 after he stepped down as a Republican member of the Securities and Exchange Commission.

Since then, he has prepared private-equity firms for compliance exams, devised strategies for mutual funds to resist government curbs on risk-taking, and helped Chinese accounting firms avert a ban on doing business in the U.S., according to the people familiar with the matter. Patomak’s other clients have included the U.S. Chamber of Commerce and Fidelity Investments, the people said.

Patomak—named for an old spelling of the Potomac River bordering Washington—also sells its expertise to the government, monitoring financial companies that commit to upgrade their compliance systems. Even so, Mr. Atkins remains a critic of regulation, attacking Democrats he says believe they can direct the invisible hand of the market.

His libertarian political views, combined with his technical grasp of securities laws, made him a fitting choice to head the part of Mr. Trump’s transition team responsible for digging into financial agencies.

Posted by Marcia Oddi on Tuesday, January 03, 2017
Posted to General Law Related

Ind. Courts - "Few Indiana court cases resolved by jury trial"

Dan Cardin reported in a long story Sunday in the NWI Times:

INDIANAPOLIS — Trial by jury, a hallmark of the American court system, seems to be disappearing in Indiana — in practice, if not in principle.

In 2015, there were 1,160 jury trials across the state's 92 counties out of 1,361,787 new criminal, civil, infraction and ordinance violations filed in Indiana.

That's nine fewer jury trials in the state than in 2014, and a sharp decline from the 1,514 cases resolved by a jury in 2010, and the 2,450 jury trials in 2005, according to data published by the Indiana Office of Court Services.

Similarly, jury trials are increasingly rare in Northwest Indiana courthouses. * * *

Indiana is not alone in seeing fewer cases go to a jury. Many states report similar declines, and data show the number of jury trials in the federal court system dropped 52 percent between 1997 and 2015.

Indiana Chief Justice Loretta Rush, who lived in Munster as a child, said there are several explanations for the 53 percent statewide decline in jury trials over the past decade.

For one, she said, there were some 320,000 more cases filed in 2005 than in 2015. She also said civil cases tend more often to be resolved through mediation these days than they were in the past.

"We will always protect the right to a jury trial," Rush said. "(But) if parties come to a resolution of the matter in a timely process, I think that's great." * * *

Another reason for the relative paucity of jury trials is that traffic tickets and ordinance violations, which seldom go to a jury, comprised 43 percent of the court cases filed statewide in 2015.

There were just 63,582 felonies (5 percent of all cases) charged to Indiana's 6.6 million residents, including 232 murders. * * *

Rush said it's too soon to tell the impact on jury trials from Indiana's 2014 criminal code reforms that generally reduced prison terms for all but the worst crimes, and favored community corrections, drug treatment or other diversion programs, over locking most criminals up for long stretches.

Some county prosecutors initially chafed at their apparent loss of plea-bargaining power, since the changes eliminated what once were lengthy prison terms for mid-level felonies.

However, the initial data show prosecutors do not seem to be taking more cases to juries seeking a maximum sentence.

Here the the Indiana Court page linking to its reports and statistics.

Posted by Marcia Oddi on Tuesday, January 03, 2017
Posted to Indiana Courts

Ind. Courts - "Civil and criminal cases that will have an impact in the coming year""

Madeline Buckley reported this weekend in the Indianapolis Star in a long story that begins:

Discrimination based on sexual orientation. A drug kingpin. Problems in the Marion County Jail.

In 2017, judges in Indiana will tackle a wide variety of legal issues and face some of the most notorious criminal cases in recent years.

Here are civil and criminal cases that will have an impact in the coming year.

Among the cases listed is Hively v. Ivy Tech, which was heard en banc by the 7th Circuit on Dec. 1, 2016, and could be decided any day now. The issue is "whether Title VII of the 1964 Civil Rights Act extends to sexual orientation."

Another case awaiting a ruling, this one by our Court of Appeals (Star correct), is William Groth v. Mike Pence. Oral argument was Nov. 21, 2016.

Posted by Marcia Oddi on Tuesday, January 03, 2017
Posted to Indiana Courts

Ind. Gov't. "Important role of educators in an era of 'fake' news"

Educator and journalist Andrea Neal had an important article this weekend that everyone can learn from.

See also this excellent Dec. 5, 2016 NPR article, "Fake Or Real? How To Self-Check The News And Get The Facts."

And "After Comet Ping Pong and Pizzagate, teachers tackle fake news." from the Dec. 11, 2016 Washington Post.

Posted by Marcia Oddi on Tuesday, January 03, 2017
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

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

Next week's oral arguments before the Supreme Court (week of 1/9/17):

Thursday, January 12

Webcasts of Supreme Court oral arguments are available here.


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

Next week's oral arguments before the Court of Appeals (week of 1/9/17):

Tuesday, January 10 Friday, January 13

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

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


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

Posted by Marcia Oddi on Tuesday, January 03, 2017
Posted to Upcoming Oral Arguments