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Wednesday, February 08, 2017

Law - "Should Police Be Allowed to Keep Property Without a Criminal Conviction?"

That is the headling of a long, timely article today by Scott Rodd of Stateline, a publication of the PEW Charitable Trusts. And it focuses on Indiana.

The article begins:

When Sean Devonish and Jeremy Keets, two friends from Indianapolis, set out for a weekend trip to Cincinnati in 2013, they anticipated a few relaxing days out of town. Instead, they wound up having to hand over $16,500 in cash to officers from the Hamilton County Regional Narcotics Unit — without ever being charged with a crime.

The two men were pulled over on Interstate 74 for a lane violation and consented to a search of their vehicle, which is when the officers discovered the $16,500 — money that was intended for gambling at the casino and shopping in the city, according to their attorneys.

Hamilton County is a hotbed of interstate drug activity, and the Regional Narcotics Unit makes regular drug busts along the highways heading into and out of Cincinnati. In this case, however, officers seized the money based on the mere suspicion — without evidence — that it was tied to criminal activity. After county prosecutors proceeded with a civil forfeiture case, a county judge determined the money had no connection to a crime. The $16,500 was returned to Devonish and Keets, but only after two years of court battles and several thousand dollars in attorneys’ fees.

Civil asset forfeiture, a practice that allows law enforcement to permanently seize property without pressing criminal charges, funnels hundreds of millions of dollars into state and federal coffers every year. According to a 2015 report by the Institute for Justice, a nonprofit civil liberties law firm, net proceeds from civil forfeitures across 14 states more than doubled between 2002 and 2013, jumping from around $100 million to $250 million. Net assets in forfeiture funds within the U.S. Department of Justice and the U.S. Treasury Department exploded during this time as well, climbing from less than $1 billion in 2001 to nearly $4.5 billion in 2014.

As proceeds from civil forfeiture have swelled, so has the controversy surrounding the practice. A number of states are considering changes — from creating tracking systems that promote transparency to effectively banning forfeitures without a criminal conviction.

For much more, start with this Jan. 17th ILB post headed "Could Indiana pass forfeiture reform this year?"

And recall the widely-reported happening from yesterday, here via a story in Politico by Louis Nelson headed "Trump invites sheriff to 'destroy' Texas state lawmaker who opposes asset forfeiture."

Posted by Marcia Oddi on Wednesday, February 08, 2017
Posted to General Law Related

Ind. Gov't - Allen Co. Judge rules against Galindo for County Council seat

Rosa Salter Rodriguez reports today for the Fort Wayne Journal Gazette:

An Allen County judge today ruled against Democrat Palermo Galindo of Fort Wayne, in his challenge of November's Allen County Council election.

Galindo filed suit saying that Republican candidate Roy Buskirk, who died four days before the Nov. 8 balloting, was improperly left on the ballot.

Galindo maintained that he should have won the seat because he received the fourth-highest vote total in a six-candidate race for three seats.

Special Judge Craig J. Bobay ruled, however, that election officials did not err in leaving Buskirk's name on the ballot and declaring him the winner of the election.

The ruling acknowledges the nonexistent, vague and sometimes contradictory nature of laws pertaining to the situation, but concludes the intent of voters must be seen as primary.

"Given the large margin of victory for the three top vote earners over the bottom three in this race of six candidates, it is clear that the intent of the Allen County voters was not to elect Galindo to the office," the judge concluded.

Here is a copy of Judge Bobay's 22-page order in Palermo Galindo v. The Allen County Election Board.

Posted by Marcia Oddi on Wednesday, February 08, 2017
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In City of Lawrence Utilites Service Board, City of Lawrence, Indiana, and Mayor Dean Jessup, Individually and in his Official Capacity v. Carlton E. Curry, a 12-page, 4-1 opinion, Justice Massa writes:

The City of Lawrence’s newly-elected mayor terminated the City’s utility superintendent, Carlton Curry, after their differences in policy became apparent. Curry sued, claiming he was wrongfully discharged under the utility superintendent statute, he is owed unpaid wages under the Wage Payment Statute, and the mayor tortiously interfered with his employment contract. The trial court granted summary judgment in favor of Curry on the wrongful discharge claim and in favor of the City on the Wage Payment Statute claim, but denied summary judgment on the tortious interference claim. We affirm the trial court in all respects. * * *

In a divided, published opinion, our Court of Appeals affirmed summary judgment in favor of the City as to the Wage Payment Statute, reversed the denial of summary judgment for the City on the intentional inference claim, reversed the grant of summary judgment in favor of Curry on the wrongful discharge claim, and remanded with instructions to grant summary judgment in favor of the City. City of Lawrence Utils. Serv. Bd. v. Curry, 55 N.E.3d 895, 899–902 (Ind. Ct. App. 2016). Curry sought transfer, which we granted, thereby vacating the opinion of the Court of Appeals. * * *

Based on the clear and unambiguous language of Indiana Code section 8-1.5-3-5(d), the USB had the sole authority to terminate Curry, after notice and a hearing. Any other method for termination is up to the legislature to determine as a matter of policy. With respect to Curry’s Wage Payment Statute and intentional interference with an employment relationship claims, we also affirm. Thus, we affirm the trial court in all respects.

Rush, C.J., and Rucker and Slaughter, JJ., concur.
David, J., concurs in part and dissents in part with separate opinion. [which begins, at p. 10]

While I agree with the majority that Curry is not entitled to wages pursuant to the Wage Payment Statute and thus, the trial court should be affirmed on that issue, I write separately because I disagree with the majority’s analysis on the other two issues: wrongful discharge and intentional interference with a business relationship. I would reverse the trial court on both issues. * * *

In sum, I do not believe the plain language of the statute limits the mayor’s ability to terminate the superintendent at will. I also do not believe that the mayor’s actions were unjustified and thus, Curry cannot prove his claim for intentional interference with an employment relationship. As such, I respectfully dissent in part. I would reverse the trial court on both issues.

Posted by Marcia Oddi on Wednesday, February 08, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't - Indy Star asks Holcomb for Pence records; PAC says give them some time

An interesting Public Access Counselor response was issued February 1 to the Indianapolis Star. Some quotes:

Your complaint dated December 22, 2016, alleges the Office of the Governor has violated the APRA by not providing your requested documents in a reasonable time.

On or about September 16, 2016, you submitted a records request to the Office of the Governor for several sets of email correspondence between Governor Mike Pence from his private email account. A request was made by the Governor’s Office to narrow down your request to meets its standards of reasonable particularity. After doing so on October 20, 2016, the Governor’s Office indicated it would initiate the search. After a significant amount of time passed, several status update requests were unsuccessful; therefore, a formal complaint was filed with this office.

Due to the timing of the election season, the Holcomb administration responded on behalf of Former Governor Pence’s office. According to Mr. Heerens, the Former Governor passed along his office’s files and public records to the incoming administration. This includes the records responsive to your request. The new administration has taken on the task to curate the Former Governor’s records for potential production. Governor Holcomb’s legal team is reviewing those files for release and assures any records appropriate for distribution will be produced in the near future. * * *

[T]he past several months have been historically unprecedented in state government. The usual course of business has been anything but usual. If any circumstances were to ever qualify as extenuating, the past few months would certainly be so. The challenges faced by administration transitions (including staff turnover), elections and even the holiday season are all valid justifications for delay in responding to a public records request. This was no doubt exacerbated by the influx of public record requests submitted to the Pence administration after he accepted the candidacy for Vice President.

A nine-week delay with no status updates and no piecemeal production of documents would normally run contrary to any reasonable interpretation of timeliness. While the release of requested public records should always be a priority, there were undoubtedly competing priorities in the last weeks of the Pence administration. By the same token, in its first few weeks, the Holcomb administration has been concerned with the business of establishing itself as head of the executive branch while also preparing for the 2017 legislative session. Given those responsibilities coupled with the task of being the custodian of a prior administration’s public records, a subsequent delay in the production was inevitable. Yours is unlikely to be the final request for the records of Vice President Pence’s gubernatorial records. Whether those records are retained by the administration or transferred to the state archives with past administrations’ files, it is my sincere hope the future accessibility of these records is swift and easy.

By no means am I minimizing the importance of yours or any other public records request. But given the unique nature of recent events, I am inclined to defer to the Former Governor’s office on the issue of timeliness. My advice to both parties is to consider this Opinion an outlier. Based on my brief conversations with the Holcomb administration staff, I am confident they are committed to best practice and good governance as it relates to transparency, including matters of timeliness.

Posted by Marcia Oddi on Wednesday, February 08, 2017
Posted to Indiana Government

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

For publication opinions today (1):

In Matthew James Cole v. State of Indiana , a 17-page opinion, Judge Altice writes:

Following a jury trial, Matthew Cole was convicted of Level 3 felony resisting law enforcement, Level 5 felony possession of an altered handgun, Level 5 felony possession of methamphetamine, Level 5 felony possession of a narcotic drug, three counts of class A misdemeanor carrying a handgun without license, and class A infraction possession of paraphernalia. On appeal, Cole argues that the State presented insufficient evidence to support a number of his convictions. We affirm. * * *

[1. Resisting Law Enforcement] In sum, Cole created a situation in which Officer Harper’s only option to protect himself was to discharge his weapon. The fact that Officer Harper was able to get a clear shot at Dyer and not Cole does nothing to relieve Cole of responsibility for the foreseeable results of his actions. For all of these reasons, we conclude that the State presented sufficient evidence to prove that Cole’s operation of the car was a proximate cause of Dyer’s death. Accordingly, his resisting law enforcement conviction was properly elevated to a Level 3 felony.

[2. Possession of an Altered Handgun] * * * This evidence supports an inference that Cole not only possessed the Ruger, but had been carrying it on his person for some length of time. Under these circumstances, it was reasonable for the jury to infer that Cole knew that the Ruger had been altered.

[3. Possession of a Narcotic Drug] * * * Cole makes no argument that he did not possess the heroin found in the manicure kit. Accordingly, we cannot conclude that the evidence was insufficient to support his conviction for possession of a narcotic drug.

[4. Carrying a Handgun without a License] * * * The sheer ubiquity of ammunition and firearm accessories throughout the entire car was more than sufficient to support an inference that Cole had control of the car with knowledge of the guns’ presence, as well as the intent to convey or transport those weapons. Accordingly, Cole’s convictions for carrying a handgun without a license are supported by sufficient evidence.

NFP civil decisions today (2):

Carisa Coffman v. Theodore Brown, Toyota Material Handling Midwest, Inc. (mem. dec.)

Lori Enfield, Richard Enfield, Marvin Enfield, Thomas E. Wilson as Guardian for Sharon Enfield, and Steuben County Treasurer v. The Farmers & Merchants State Bank (mem. dec.)

NFP criminal decisions today (5):

Thomas E. Sparks v. State of Indiana (mem. dec.)

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

Justine Archer v. State of Indiana (mem. dec.)

Billy Stacy Jr. v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Wednesday, February 08, 2017
Posted to Ind. App.Ct. Decisions