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Wednesday, February 15, 2017

Ind. Decisions - Supreme Court suspends attorney 180 days for bringing frivolous lawsuits

In In the Matter of: Andrew U.D. Straw, a 3-page order, the Court writes:

Facts: The four disciplinary counts in this case arise from frivolous claims and arguments advanced by Respondent in four lawsuits, three filed on his own behalf and the fourth filed on behalf of a client.

The first case, Straw v. Kloecker, arose from a defamation lawsuit Respondent had filed on his own behalf against a publishing company. * * *

In the second case, Straw v. American Bar Association et al., Respondent filed suit in federal court against the ABA and 50 law schools, alleging violations of the Americans with Disabilities Act (“ADA”). * * *

The third case, Straw v. Sconiers, arose from Respondent’s prior representation of a client in connection with an employment discrimination claim. * * *

The fourth case, Rutherford v. Zalas, arose from a post-dissolution proceeding in Marshall Superior Court in which Respondent represented the former husband and another attorney (“Zalas”) represented the former wife. * * *

In each of the four counts, the Commission charged Respondent with violating Indiana Professional Conduct Rule 3.1, which prohibits bringing a proceeding or asserting an issue therein unless there is a basis in law and fact for doing so that is not frivolous. Following a hearing in which Respondent refused to participate, the hearing officer found Respondent violated Rule 3.1 as charged in each of the four counts and recommended that Respondent be suspended without automatic reinstatement. * * *

Discipline: For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 180 days, without automatic reinstatement, effective immediately.

Posted by Marcia Oddi on Wednesday, February 15, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on "Lawmaker seeks to untangle regulations on African-American hair-braiding"

The IndyStar's Fatima Hussein reports today:

Stylists who specialize in braiding hair would no longer have to attend beauty school under a bill approved by the Indiana House on Monday.

House Bill 1243, sponsored by Rep. Tim Wesco, R-Osceola, passed Monday on an 82-11 vote. It now heads to Indiana's Senate for consideration.

The measure effectively removes natural hair braiding from the cosmetologist licensing requirement. Currently, braiders who offer the service are required to obtain schooling in cosmetology in order to obtain a license.

Indiana has one of the strictest hair-braiding regulations in the country, according to the Libertarian law firm Institute for Justice, requiring braiders to complete 1,500 hours of practice before receiving a license.

The measure is supported by several state agencies that monitor hair salons. The Indiana Professional Licensing Agency told IndyStar that the state has never actually seen a complaint from a consumer regarding unlicensed hair braiders.

See the earlier post here.

Posted by Marcia Oddi on Wednesday, February 15, 2017
Posted to Indiana Government

Ind. Decisions - "Boonville attorney suspended from practice for three years"

Today's Supreme Court ruling suspending Gene D. Emmons for three years (see ILB summary here) is the subject of a story in the Evansville Courier & Press, reported by Mark Wilson, that begins:

A Boonville, Indiana attorney who wrote $20,000 in checks to himself from the account of an 88-year-old incapacitated woman has been suspended from practicing law for at least three years.

Attorney Gene D. Emmons was Warrick Circuit Court-appointed guardian for the woman, who was living in a nursing home at the time, according to an Indiana Supreme Court disciplinary order published Tuesday.

The order noted that Emmons had already been indefinitely suspended for not cooperating with the state Disciplinary Commission's investigation and he will not be given credit for that time. He was suspended indefinitely on Jan. 25, 2016.

Posted by Marcia Oddi on Wednesday, February 15, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court issues 2 today, including an attorney suspension for 3 years

In J.D.M. v. State of Indiana, an 11-page, 5-0 opinion, Justice Massa writes:

J.D.M. was adjudicated a delinquent for committing acts which, if committed by an adult, would constitute Class C felony child molestation, and was subsequently ordered to register as a sex offender. J.D.M. appeals, claiming that the statutory prerequisites for placing a juvenile on the sex offender registry were not met. We agree, and reverse. * * *

In both J.C.C. and N.L., this Court emphasized that such strict construction of the juvenile sex offender registration requirement was necessary to accomplish the express statutory goal of “ensur[ing] that children within the juvenile justice system are treated as persons in need of care, protection, treatment, and rehabilitation.” Ind. Code § 31-10-2-1(5) (2016); N.L., 989 N.E.2d at 778 (“The stakes of juvenile sex-offender registration . . . are significantly different than where adult offenders are involved.”); J.C.C., 897 N.E.2d at 935 (“[T]he statutory scheme for dealing with minors who commit crimes is vastly different from the statutory scheme directed to adults who commit crimes. This policy is consistent with the State’s primary interest in rehabilitation, rather than the punishment of juvenile delinquents.”) (internal citations omitted).

In In the Matter of: Gene D. Emmons, a 4-page, 4-1, attorney disciplinary action, the Court writes:
We find that Respondent, Gene D. Emmons, engaged in attorney misconduct by converting guardianship funds, failing to comply with court orders, and failing to cooperate with the disciplinary process. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least three years without automatic reinstatement. * * *

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, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(18).

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

All Justices concur, except David, J., who would reject the conditional agreement.

Posted by Marcia Oddi on Wednesday, February 15, 2017
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (4):

In Mint Management, LLC, and J&MW Holdings, LLC v. City of Richmond, Indiana , a 12-page opinion, Judge Pyle writes:

Owners filed a claim for a declaratory judgment on the issue of whether they were required to pay the City’s fee (“Stormwater Fee”) for financing its stormwater system. The City filed a motion for summary judgment, and the trial court granted the motion. It reasoned that all owners of real estate parcels in Richmond were required to pay the Stormwater Fee pursuant to the language of the City’s stormwater ordinance.

On appeal, the Property Owners argue that we should interpret the City’s stormwater ordinance as exempting their properties from the Stormwater Fee because the stormwater runoff from their properties does not enter the City’s stormwater system. Because we conclude that the language of the ordinance as a whole requires all property owners in Richmond to pay the Stormwater Fee, we conclude that the trial court did not err in granting summary judgment in favor of the City.

In Jason Bokori v. Jasmina Martinoski , an 18-page, 2-1 opinion, Judge Bailey writes:
Jason Bokori (“Bokori”) collided with Jasmina Martinoski’s (“Martinoski”) leased car, totaling it. Insurance payments covered Martinoski’s medical expenses and a portion of the cost of her totaled vehicle, but a balance remained on the lease. Martinoski sued Bokori for the balance in small claims court, and the court entered judgment in her favor. Bokori now appeals. We affirm.

Issue. Bokori presents one issue for our review, whether the small claims court committed clear error in determining fair market value and awarding damages. * * *

The dissent’s argument that Martinoski cannot recover for damages related to a leasehold—something apparently akin to arguing that Martinoski lacks a claim for which relief can be granted under Trial Rule 12(B)(6)—is not an argument Bokori made at trial. And, because it is outside our role to advocate for a party, issues not raised by a party are waived. Perry v. Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct. App. 2014), trans. denied, cert. denied. Here, Bokori has essentially conceded that Martinoski was entitled to pursue this claim. See Ind. Trial Rule 15(B) (providing that issues not raised in the pleadings but tried by express or implicit consent of the parties “shall be treated in all respects as if they had been raised in the pleadings”).

Thus, Bokori’s appeal focuses solely on the question of the trial court’s determination of fair market value. That Martinoski was not the owner of the vehicle does not ipso facto preclude the trial court from hearing or crediting her testimony as to the value of the vehicle, just as surely as Martinoski not owning the vehicle did not preclude her from obtaining insurance. Simply put, she had a contractual interest in the vehicle’s use, and thus a financial stake in any resulting payout for damage to the vehicle. We are not at liberty to aid Bokori, a party represented by counsel in a small claims case, by creating arguments for him, and we are thus not at liberty to take the dissent’s path.

Nor are we at liberty to presume knowledge of the contents of any of a number of documents that might, had Bokori introduced them into evidence, have precluded a recovery. The record includes testimony concerning the existence of a lease and its term. But the lease document itself was not introduced into evidence, and thus we cannot properly rely on what it might say as introducing a bar to Martinoski’s recovery. There is also no evidence about the extent to which some or all of Martinoski’s claims were subrogated either to Toyota Financial or her insurer. * * *

Had Bokori presented other arguments or introduced other evidence, our result might have been different. But we are not bound to do a litigant’s work, and we are not at liberty to reargue the case or reweigh evidence. We therefore affirm the trial court’s judgment. Affirmed.

Brown, J., concurs.

Barteau, Sr. J., dissents with separate opinion. [that begins, at p. 12] The majority concludes that appellate review and disposition of this case hinges on the sufficiency of the evidence of fair market value, and would dispose of this case as an impermissible request by Jason Bokori to reweigh that evidence. I believe that the trial court did not appropriately apply the law, committing clear error, and, therefore, I must respectfully dissent. * * *

Martinoski had a remaining contractual liability on the leased vehicle that was totally destroyed as a consequence of Bokori’s tortious actions. Although the result of the financial choices made seems to lead to a harsh result, Martinoski has no legal remedy against Bokori for her contractual liability under the lease agreement. For these reasons, I must respectfully dissent from the majority opinion affirming the trial court’s decision.

In Harry Hobbs v. State of Indiana, a 7-page opinion, Sr. Judge Barteau writes:
[I]n this case the trial court corrected a limited sentencing error on remand in relation to a motion to correct erroneous sentence. The holdings in Lane and Niece do not compel a conclusion that the trial court or this Court is obligated to consider all of Hobbs’s sentencing claims regardless of whether they are appropriate for a motion to correct erroneous sentence. * * * Affirmed.
In Justin R. Messersmith v. State of Indiana, an 8-page opinion, Judge Bailey writes:
Following a jury trial, Justin R. Messersmith (“Messersmith”) was convicted of one count of Neglect of a Dependent Resulting in Bodily Injury, as a Level 5 felony, and one count of Battery on a Person Less Than 14 Years Old, as a Level 6 felony. Messersmith now appeals, contending that the trial court abused its discretion when, after accepting a plea agreement and entering judgment of conviction against Messersmith pursuant to the agreement, the trial court later granted the State’s request to withdraw the plea agreement. We reverse and remand with instructions. * * *

The circumstances here, however, did offend Messersmith’s constitutional rights. This is because entry of judgment following a guilty plea implicates a defendant’s rights, Coker, 499 N.E.2d at 1138, and due process requires that the government uphold its side of the bargain. Santobello, U.S. 257 at 262. Thus, Messersmith’s due process rights were violated when the trial court allowed the State to avoid the agreement over Messersmith’s objection. Although Indiana law establishes important victim rights, those rights must give way to a defendant’s federal due process rights. U.S. Const. art. VI, cl. 2; Ind. Const. art. 1, § 13(b). We therefore conclude that the trial court abused its discretion when it granted the State’s request to withdraw the plea agreement.

NFP civil decisions today (3):

Courtney L. Donald a/k/a Courtney Cain v. Z.D.C. b/n/f Shana L. Rhodes, et al. (mem. dec.)

In the Termination of the Parent-Child Relationship of: A.B., V.B., C.R., & E.R. (Minor Children), and K.R. (Father) v. The Indiana Department of Child Services (mem. dec.)

In re the Termination of the Parent-Child Relationship of: N.D. (Minor Child) and J.D. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (8):

Thomas Maxfield v. State of Indiana (mem. dec.)

Rafael A. Faulkner v. State of Indiana (mem. dec.)

Grady Jamal Moss v. State of Indiana (mem. dec.)

Allison Moore v. State of Indiana (mem. dec.)

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

Marc Benton v. State of Indiana (mem. dec.)

Tyree Brodley v. State of Indiana (mem. dec.)

Donald E. Morris v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, February 15, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - State preemption of local bans on short term rentals passes house

Updating earlier ILB posts, Chris Sirich reported late yesterday for the Indianapolis Star:

On its second try, the Indiana House passed legislation to prevent local governments from banning Airbnb and similar short-term rental services.

The House voted 53-40 Tuesday to approve House Bill 1133. Lawmakers first tried to pass the bill Feb. 6 but could not reach a constitutional majority of 51 votes to approve the legislation. * * *

Rep. Matt Lehman, R-Berne, filed the bill to prevent local communities from banning residents from renting rooms in their homes. The legislation also would prevent governments from enacting overly strict regulations, such as adding costly fire prevention codes or noise or parking restrictions, that go beyond what other homeowners face.

The legislation would come with some caveats. Owners cannot rent their rooms for 30 consecutive days or for more than 180 days a year. Owners also must purchase liability insurance to cover up to $1 million per incident for third-party claims of death, bodily injury or property damage. * * *

Carmel Mayor Jim 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. Hotels, he said, face stricter zoning regulations than homeowners and are worried they are losing business in an unlevel playing field.

Posted by Marcia Oddi on Wednesday, February 15, 2017
Posted to Indiana Government

Indf. Decisions - "COA upholds Rush County wind decision"

The Court of Appeals decision yesterday in Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals, et al. (ILB summary here) is the subject of a story today by James Sprague in the Connersville News Examiner. The long story begins:

INDIANAPOLIS — The proposed Flat Rock Wind Project in Rush County became a little less likely to happen, at least in Rush County, as of this week.

The Indiana Court of Appeals Tuesday morning issued its opinion on the case involving Flat Rock Wind, LLC. – also known as Apex Clean Energy – and the Rush County Area Board of Zoning Appeals, with that opinion upholding the decision back in July 2015 to enact a 2,300-foot setback distance, from non-participating property lines, on Apex’s special exception permits for construction of industrial wind turbines as part of the proposed wind project which is slated to span both Rush and Henry counties.

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

Posted by Marcia Oddi on Wednesday, February 15, 2017
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Bill Would Set Guidelines For Releasing People On Bail"

Barbara Brosher reports today for Indiana Public Media:

A bill that would set guidelines for determining who can be released from jail on bail passed out of a Senate committee Tuesday.

The proposal says people who do not present a substantial risk of fleeing or danger should be released without bail. It excludes those under court-ordered supervision, those facing other charges and those who are charged with murder. * * *

The proposal comes after the Indiana Supreme Court adopted Criminal Rule 26 last year, which asks courts to use evidence-based risk assessments to help make pre-trial release decisions. Chief Justice Loretta Rush wrote in the order that “the prompt release of arrestees who do not pose a risk to public safety is associated with reduced recidivism and eliminates unnecessary expenses resulting from the over utilization of local jail resources.”

The bill is SB 228.

This story is of interest because, as the story notes, the Supreme Court has adopted a rule in this area, Criminal Rule 26. Pretrial release. For background, see this ILB post from Sept. 9, 2016, which points to the controversy between "prosecutors and defense attorneys differ on whether a new criminal rule announced by the Indiana Supreme Court will make the state a safer place." See also this Sept. 15, 2016 post, quoting a story in the Columbus Republic that began:

A new assessment process allows some criminal defendants to be released from the Bartholomew County Jail without posting bond.

A new pretrial process will use risk-assessment results to determine whether a defendant may be released without posting bond or whether that person needs to put up money, as they did before, before being allowed to leave the county jail.

Bartholomew is one of nine Indiana counties that may start using the new pretrial model under rules approved Sept. 7 by the Indiana Supreme Court. They go into effect in Bartholomew County this week and will be rolled out to all Indiana courts by 2018.

It will be interesting to know more about whether this bill is intended to usurp the court rule, and the positions of the various interest groups. Perhaps this will come out in second house committee.

Posted by Marcia Oddi on Wednesday, February 15, 2017
Posted to Indiana Courts

Law - "IRS has stopped requiring individual filers to indicate whether they maintained health coverage or paid the mandate penalty as required under the law"

That according to a headline to an article dated Feb. 14th in Reason ( "free minds and free markets"), by Peter Suderman. The headline in full: "Major Blow to Obamacare Mandate: IRS Won't Reject Tax Returns That Don't Answer Health Insurance Question: The tax agency has stopped requiring individual filers to indicate whether they maintained health coverage or paid the mandate penalty as required under the law." The story begins:

How much difference does a single line on a tax form make? For Obamacare's individual mandate, the answer might be quite a lot.

Following President Donald Trump's executive order instructing agencies to provide relief from the health law, the Internal Revenue Service appears to be taking a more lax approach to the coverage requirement.

The health law's individual mandate requires everyone to either maintain qualifying health coverage or pay a tax penalty, known as a "shared responsibility payment." The IRS was set to require filers to indicate whether they had maintained coverage in 2016 or paid the penalty by filling out line 61 on their form 1040s. Alternatively, they could claim exemption from the mandate by filing a form 8965.

For most filers, filling out line 61 would be mandatory. The IRS would not accept 1040s unless the coverage box was checked, or the shared responsibility payment noted, or the exemption form included. Otherwise they would be labeled "silent returns" and rejected.

Instead, however, filling out that line will be optional.

Earlier this month, the IRS quietly altered its rules to allow the submission of 1040s with nothing on line 61. The IRS says it still maintains the option to follow up with those who elect not to indicate their coverage status, although it's not clear what circumstances might trigger a follow up.

But what would have been a mandatory disclosure will instead be voluntary. Silent returns will no longer be automatically rejected. The change is a direct result of the executive order President Donald Trump issued in January directing the government to provide relief from Obamacare to individuals and insurers, within the boundaries of the law.

However, this reporting change does not appear to eliminate the penalty for going without coverage. More from the long story:
Although the new policy leaves Obamacare's individual mandate on the books, it may make it easier for individuals to go without coverage while avoiding the penalty. Essentially, if not explicitly, it is a weakening of the mandate enforcement mechanism.

"It's hard to enforce something without information," says Ryan Ellis, a Senior Fellow at the Conservative Reform Network.

The move has already raised questions about its legality. Federal law gives the administration broad authority to provide exemptions from the mandate. But "it does not allow the administration not to enforce the mandate, which it appears they may be doing here," says Michael Cannon, health policy director at the libertarian Cato Institute. "Unless the Trump administration maintains the mandate is unconstitutional, the Constitution requires them to enforce it."

"The mandate can only be weakened by Congress," says Ellis. "This is a change to how the IRS is choosing to enforce it. They will count on voluntary disclosure of non-coverage rather than asking themselves."

The IRS notes that taxpayers are still required to pay the mandate penalty, if applicable. "Legislative provisions of the ACA law are still in force until changed by the Congress, and taxpayers remain required to follow the law and pay what they may owe‎," the agency statement said.

Posted by Marcia Oddi on Wednesday, February 15, 2017
Posted to General Law Related