Thursday, February 09, 2017
Ind. Decisions - Rare written dissent filed in denial of petition to transfer
The case of Montgomery v. Montgomery was decided by the Court of Appeals on Sept. 8, 2016 (3rd case).
Transfer was applied for and the result should appear on the new Supreme Court transfer list next Monday, as "Transfer denied - All Justices concur, except" with J.David and C.J. Rush listed as dissenting.
However, in this case Justice David dissented with a 3-page opinion, in which Chief Justice Rush joined. It begins and concludes:
I respectfully dissent from the denial of transfer. In finding that the trial court’s order granting Mother’s petition to modify custody of A.M. was clearly erroneous, I am afraid the Court of Appeals engaged in impermissible reweighing of evidence . It seems to me that such a significant departure from accepted law warrants review by this Court and I would grant transfer to affirm the trial court’s order. * * *Such written dissents to transfer decisions are rare. Here is one from Dec. 2, 2016, and one from April 3, 2013.
To me, it seems the trial court’s findings here were not clearly erroneous and t he Court of Appeals should have afforded the trial court’s findings gr ea ter deference. While the high deference given to trial court in such matter s is not absolute, See Kirk, 770 N.E.2d at 307 n.5, I believe sufficient evidence existed here to support the trial court’s findings and the judgment . Thus, I would grant transfer and affirm the tria l court’s judgment.
Ind. Gov't - House today overrides two bills vetoed last year by Gov. Pence
Because this is important, the ILB is reprinting its post from March 24, 2016:
Here are the Governor's press statements, which include his veto message, which sometimes can otherwise be hard to locate:
- Governor Pence Vetoes Bill That May Lessen Ability to Maintain Clean and Safe Drinking Water
Indianapolis – Governor Mike Pence today vetoed House Enrolled Act 1082, known as the "no more stringent" bill, which would have prevented environmental standards or rules put forth by the Indiana Department of Environmental Management that impose a restriction or requirement more stringent than federal law from going into effect until after adjournment sine die of the next General Assembly.
“In recent months, public concern over clean and safe drinking water has grown as a result of the situation in Flint, Michigan,” said Governor Pence. “Our Indiana Department of Environmental Management is vigilant about requiring regular testing of water systems across the state for lead and working with any systems that are out of compliance to implement plans that will return the water to safe levels. IDEM must have the necessary flexibility to take action to protect Hoosiers. House Enrolled Act 1082 restricts IDEM’s ability to act and imposes unnecessary delay in its rulemaking process. At a time when we must do all that we can to enhance public trust in the agencies charged with protecting our environment, this bill moves in the wrong direction and will therefore receive my veto. With this veto, Hoosiers can be assured that we will continue to have the necessary discretion and flexibility to create Indiana solutions at the state level and act in a timely way to protect our drinking water.”
Background: Every six months, IDEM requires Indiana’s 1,369 drinking water systems to sample and test water for lead and copper, both at the treatment facility and at the tap. Results must be submitted to IDEM. IDEM standards also require that a system that switches sources of water to sample before distributing the water to assess treatment that will ensure safe and clean water. Water systems can treat the water with phosphorus to eliminate corrosiveness.
If more than 10 percent of results show greater than 15 parts per billion (ppb) for lead, IDEM issues a Lead Exceedance Letter that requires the system to formulate and implement a plan to reduce lead levels and do the following:
IDEM inspectors work closely with communities to help them return to compliance and oversees implementation of their plans.
- Notify the public by newspaper and in the water bill or separate mailing to all users within 30 days.
- Educate the public about sources of lead, what the system is doing to reduce lead levels and steps that can be taken to reduce the possibility of ingesting lead by running cold water at their taps before use.
- Treat the water to reduce its corrosive characteristics.
- Add chemicals that coat the pipes to help prevent further corrosion.
- Replace lead distribution lines if necessary.
- Governor Pence Vetoes Bill That Would Limit Transparency at Private Universities
Indianapolis – Governor Mike Pence today vetoed House Enrolled Act 1022, which provides that certain records of a private university police department relating to arrests for criminal offenses are public records and that an educational institution, a governing board of an institution, a delegated office or governing board, or an individual employed by an educational institution as a police officer have the same immunities of the state or state police officers. The bill would have allowed private universities’ police departments to have different standards for public records than public police departments.
“Throughout my public career, I have long believed in the public’s right to know and a free and independent press. Limiting access to police records in a situation where private university police departments perform a government function is a disservice to the public and an unnecessary barrier to transparency. While House Enrolled Act 1022 provides for limited disclosure of records from private university police departments, it would limit the application of the Access to Public Records Act following the Court of Appeals decision and result in less disclosure, therefore I have decided to veto the bill. Hoosiers may be assured that my administration will always be vigilant to preserve government accountability and the public’s right to know.” –Governor Mike Pence
On March 15, 2016, the Court of Appeals of Indiana ruled in ESPN v. University of Notre Dame that Notre Dame’s police department is a “public agency” not a private entity under the Indiana Access to Public Records Act (APRA) and as such is subject to APRA requirements to produce certain documents unless otherwise protected from disclosure by APRA.
Ind. Gov't. - State preemption of local bans on short term rentals eligible for vote again today
Updating earlier ILB posts on HB 1133, the Airbnb bill (state preemption of local bans on short term rentals), Katie Stancombe of The Statehouse File reported at length yesterday in a story at the IBJ headed "Bill on short-term rentals resurrected in Indiana House." Re the status of the bill:
The Indiana House could consider a bill as soon as Thursday that would limit how much control local municipalities such as Carmel might have in restricting these Airbnb-style rentals.
The bill, authored by Rep. Matthew Lehman, R-Berne, failed to garner the necessary 51 votes to pass on Monday. But Tuesday, lawmakers agreed by a 48-44 vote to reconsider the measure when they return to session on Thursday.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 6 NFP memorandum decision(s))
For publication opinions today (1):
In Andy A. Shinnock v. State of Indiana, a 6-page opinion, Sr. Judge Sharpnack writes:
Andy A. Shinnock appeals his conviction of bestiality, a Level 6 felony. We reverse and remand.NFP civil decisions today (3):
Shinnock’s sole issue on appeal is whether the trial court erred by admitting his confession because the State’s evidence did not establish the corpus delicti of the crime. * * *
For the reasons stated, we conclude the trial court erred in admitting Shinnock’s confessions at trial because the corpus delicti of the crime charged was not established.
NFP criminal decisions today (3):
Ind. Law - "Bill eyes limit for attorney fees"
The chairman of a legislative committee that deals with the Indiana Bureau of Motor Vehicles is seeking to limit the fees class-action attorneys receive when they sue the state.The important story continues:
The move comes after a pair of class-action lawsuits that exposed massive overcharges at the BMV, resulting in nearly $60 million in refunds to millions of Hoosiers and more than $15 million in attorneys fees for the Downtown law firm that represented motorists.
Now, House Road and Transportation Committee Chairman Ed Soliday wants to restrict how such attorneys fees are calculated — a move critics say could come across as revenge.
“We feel we need some protections when the government finds an error and they are fixing it and this becomes a class-action suit,” Soliday, a Valparaiso Republican, said during a hearing on the bill Wednesday. “All you’re doing is canonizing what is good practice.”
He emphasized that the new restrictions on attorney fees would only apply to future cases, not pending ones.
But opponents worry that the measure could make cases such as the BMV lawsuit less appealing for lawyers. That could undermine one of the few mechanisms to hold the government accountable when it wrongfully overcharges or withholds small amounts of money from a large number of citizens.
“If you want to curtail attorneys fees in cases like this, why don’t you curb the greed and avarice of those taking from Hoosiers without the right to do so,” said attorney John P. Young, president of the Indiana Trial Lawyers Association.
Rep. Dan Forestal, the ranking Democrat on the committee, also raised concerns about the message Soliday’s legislation sends.
“What law firm will ever get involved in a suit if they think the state will seek revenge?” the Indianapolis Democrat said.
Ultimately, the committee voted 9-4 along party lines to advance the measure to the full House.
House Bill 1491 contains a laundry list of minor tweaks and technical corrections to the laws governing the BMV. In fact, the bill is titled “Title 9 revisions,” a reference to the section of Indiana code that deals with motor vehicle laws.
But tacked onto the end of the 64-page bill is a provision that has nothing to do with motor vehicles. Instead, it would change Title 34, which governs civil law and procedure.
The provision would require that the maximum recovery for attorney’s fees in a class-action lawsuit against the government be based on hours worked and a reasonable hourly rate. That differs from another common method for calculating fees, which is based on a percentage — often about 33 percent — of the money awarded to an attorney’s clients.
Cohen Malad, the law firm handling the BMV cases, received about $6 million in fees as part of its first lawsuit against the BMV. That equaled about 21 percent of the $30 million settlement.The ILB has had many earlier posts on the various BMV fees issues, going back for years. It appears that without the outside impetus of law suits, the situation might never have been resolved. Even so, it is taken quite a while. See, for example, this post from May 26, 2015, headed "Did Patronage Lead to BMV Overcharges?"
In November, the court awarded the firm another $9.6 million in fees as part of an ongoing second lawsuit that the judge said prompted the BMV to refund another $28.75 million to customers. Those fees represent 33 percent of the refund. The two sides are still awaiting a decision on how much additional money the state owes motorists for unauthorized BMV fees.
Soliday has railed against the attorneys fees, which he says come at the taxpayer’sexpense. “When the government is cleaning up it’s own house, let’s not provide an incentive to pile on,” Soliday said.
But Marion County Superior Court Judge Richard Hanley found in November that the BMV had concealed the overcharges for years, as IndyStar reported in 2015. He also found that Cohen Malad’s efforts were largely responsible for the BMV’s decision to refund money to customers.
Here is the current language of HB 1491, SECTION 93:
11 SECTION 93. IC 34-52-2-7 IS ADDED TO THE INDIANA CODE
12 AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
13 1, 2017]: Sec. 7. (a) This section applies to a class action against the
15 (b) This section applies to an action filed after June 30, 2017.
16 (c) Subject to the requirements this chapter, a court shall award
17 attorney's fees to a prevailing party based on the rate charged for
18 services and hours worked in preparation for the action. In
19 determining the reasonableness of the rate charged,the court shall
20 consider the nature, extent, and value of the services, including:
21 (1) whether the services were performed within a reasonable
22 amount of time commensurate with the complexity,
23 importance, and nature of the action;
24 (2) whether the attorney has demonstrated skill and
25 experience; and
26 (3) whether the compensation is reasonable based on the
27 customary compensation charged by comparably skilled
28 attorneys in similar actions.
29 (d) The court shall conduct a hearing to determine the award of
30 attorney's fees under this section. The hearing may include:
31 (1) presentation of evidence;
32 (2) testimony of expert witnesses; and
33 (3) any other evidence the court requires to make its
Law - Apps being used to avoid public records laws
Updating this ILB post from Feb. 2nd, which in its second half listed several methods federal workers were using to avoid the public records law, Jonathan Swan and David McCabe of AXIOS report on "Confide: The app for paranoid Republicans." Some quotes:
Confide — an encrypted messaging app that deletes chats after they're read — is fast becoming a tool of choice for Republicans in Washington.
Numerous senior GOP operatives and several members of the Trump administration have downloaded the app, spurred by the airing of hacked Democratic e-mails. * * *
Public service announcement for administration officials: All official business is supposed to be conducted via White House e-mail so communications can be archived for the presidential record.
Ind. Gov't. - More on "Ivy Tech refuses to explain why a top South Bend official left"
Even though they run an institution of higher education, regional administrators at Ivy Tech Community College might benefit from a refresher course in reading comprehension.
They should start with Indiana Code 5-14-3-4. Granted, state laws don’t make for the most exciting reading. But this code seems pretty clear when it mandates that public bodies have to release “the factual basis for a disciplinary action” that results in an employee “being suspended, demoted, or discharged.”
Ind. Decisions - 7th Circuit decided one Indiana case yesterday
In USA v. Kevin Hoffman (ND Ind., Miller), a 10-page opinion, Judge Manion writes:
For conduct arising out of one day’s sexual abuse, Kevin Hoffman was convicted after a two‐day federal jury trial of one count of exploitation of a child and one count of possession of child pornography in interstate commerce, and faced a sentence of up to thirty years in prison. While his sentence was pending, he was convicted in state court of sexual abuse of the same child over a period of eight‐ een months, and faced a sentence of up to fifty years in state prison. This case involves the discretion of a federal district court judge under U.S.S.G. § 5G1.3 to impose a concurrent or consecutive sentence, or to decline to impose either, when a subsequent state sentence for relevant conduct is anticipated. Hoffman argues that the plain language of the Sentencing Guidelines requires a district judge to impose a concurrent sentence in such a situation. Because the Guidelines are advi‐ sory, and because U.S.S.G. § 5G1.3 is inapplicable in this case, we affirm the decision below. * * *
As tried in federal court, the jury did hear some testimony of Jane Doe related to her long‐term abuse at the hands of Hoffman, but this testimony was limited because the charges were related to a single day’s conduct. The district court ob‐ served that the potentially more expansive state criminal trial might unveil additional factors, both aggravating and miti‐ gating, that could serve to place the state judge in a better po‐ sition than the federal judge to determine whether a concur‐ rent or consecutive sentence was warranted. As it turns out, the state judge did preside over a more expansive prosecution covering not one day, but 18 months of repeated abuse of a 6‐ year old girl at the hands of a man who was supposed to be caring for her. The state court found several aggravating fac‐ tors, no mitigating factors, imposed the statutory maximum sentence, and imposed that sentence consecutively. The in‐ stincts of the federal judge in this case about the need to defer were entirely appropriate.
To find the district court order in error, vacate it, and re‐ mand for a third resentencing could thus place Hoffman in no better position than he is now. As the district judge indicated, even applying § 5G1.3(c) he would still decline to impose a concurrent sentence, so that any hypothetical error clearly did not affect the district court’s decision. United States v. Gill, 824 F.3d 653, 662 (7th Cir. 2016).