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Monday, February 27, 2017

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 17 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (2):

M Doed LLC v. Wyeth Barrington, et al. (mem. dec.)

Karen Criswell v. Kenneth Criswell (mem. dec.)

NFP juvenile and criminal decisions today (15):

Ronnie D. Ball, Jr. v. State of Indiana (mem. dec.)

Corey Gilbert Brown v. State of Indiana (mem. dec.)

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

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

Benton Lee Courtney, Jr. v. State of Indiana (mem. dec.)

Kevin McLeod v. State of Indiana (mem. dec.)

Angela Beck v. State of Indiana (mem. dec.)

George Anderson Reese, Jr. v. State of Indiana (mem. dec.)

John Wesley Wright v. State of Indiana (mem. dec.)

Cedric S. Ware v. State of Indiana (mem. dec.)

James D. Smith v. State of Indiana (mem. dec.)

John Berry v. State of Indiana (mem. dec.)

Naveen Rajamony v. State of Indiana (mem. dec.)

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

Ian J. Clark v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, February 27, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending February 24, 2017

Here is the Clerk's transfer list for the week ending Friday, February 24, 2017. It is two pages (and 24 cases) long.

No transfers were granted last week. All 24 listed were denied, with all justices concurring.

All but three of the 24 were NFP memorandum decisions of the COA.

Posted by Marcia Oddi on Monday, February 27, 2017
Posted to Indiana Transfer Lists

Ind. Gov't. - More on "Should you have to pay $20 an hour for a public records search?"

Supplementing this ILB post from Feb. 20th, the South Bend Tribune editorialized this weekend:

Sometimes a bad idea in the Indiana General Assembly is defeated, never to be heard from again.

And then there’s House Bill 1523.

The measure, an assault on the public’s right to know, would allow state and local governments to charge up to $20 an hour for public record searches. The fees would apply when government officials spend more than two hours searching for a record requested by journalists or members of the public. In short, it would weaken Indiana’s Access to Public Records Act.

The measure passed in the House 62-25 and moves to the Senate.

This isn’t the first go-round for this particular bad idea. Legislators passed a similar measure in 2015. At the time, lawmakers said they believed that the fee would deter abusive public records requests or nonspecific searches that gobble up public employee work hours. Then-Gov. Mike Pence vetoed the bill.

The current bill, authored by Kathy Richardson, R-Noblesville, would also prohibit, with certain exceptions, an agency from charging a fee for providing a public record by electronic mail.

The Hoosier State Press Association, which traditionally advocates for open records, supports the bill, emphasizing the importance of the electronic records provision. This will be beneficial as “more and more records are collected electronically,” said HSPA Executive Director Steve Key.

Key, noting that more than half of the states had statutes including search fees, said the limits imposed “strike the proper balance in allowing a public agency to recoup search costs on voluminous requests while not serving as a chilling factor in the public’s ability to learn what its government is doing.”

Our problem with HB 1523 is the same one we expressed with the 2015 bill: It places an unfair burden on members of the public in obtaining records that belong to them. As for the concern about public employees — paid by taxpayers, mind you — spending time on such searches when they have other jobs to do, we think Rep. Matt Pierce, D-Bloomington, put it best: “They are our employees. They work for us. To have to pay to come in and pay to get access to your records I just think is not a good principle, not a good policy.”

In announcing his veto of an earlier incarnation of the bill two years ago, Pence offered this tweet: “The cost of public records should never be a barrier to the public’s right to know.”

That was true then. And it’s true now. HB 1523 should be rejected.

Posted by Marcia Oddi on Monday, February 27, 2017
Posted to Indiana Government

Ind. Gov't. - "St. Joseph Co. to use eminent domain for farmland near power plant"

Interesting long story today in the South Bend Tribune, reported by Ted Booker [ILB emphasis added] - some quotes:

NEW CARLISLE — As construction on a power plant near here moves forward, St. Joseph County has decided to try to acquire nearby farmland by eminent domain after it deadlocked with the owner over a price.

The eminent domain proceeding could force Kenneth Huston, owner of the 37-acre property on Edison Road, to sell his land to the county for a price decided in court.

The county, which needs the property to service an industrial park planned in the area, offered Huston $344,000, or about $9,300 per acre, for the land after determining its appraised value.

But Huston, a farmer who harvests crops on the land, rejected that offer and made a counter offer of $1.8 million, or nearly $50,000 per acre.

That's more than five times what the county was willing to pay for the land, which doesn't have any buildings. It is to the immediate west of the St. Joseph Energy Center, a natural gas-fired power plant that is under construction and is expected to open by June 2018.

Huston said that the sale price of a 93-acre neighboring parcel for the new power plant helped determine his offer. That parcel was sold by a Kenneth Sebasty in 2015 to the St. Joseph Energy Center for $7.5 million — more than $80,000 per acre.

"I don't understand how they can take ground away from me. They say they offered me market value for it, but the ground right next to it is worth a lot more," he said. "I planned on my boy having that ground to farm for the rest of his life, and therefore I'm going to lose income on the ground for the next 45 years."

Posted by Marcia Oddi on Monday, February 27, 2017
Posted to Indiana Government

Ind. Gov't. - "Wrong statements by lawmaker on solar energy stir backlash"

Supplementing this worth rereading Jan. 24th ILB post headed "Utilities wage campaign against rooftop solar," Brian Slodysko of the AP reports this morning in a story that begins:

INDIANAPOLIS (AP) — The third-ranking Republican in the Indiana Senate wrongly said that a financial incentive for installing solar panels would likely disappear unless lawmakers supported his bill to revamp the benefit.

At least one lawmaker said that inaccurate testimony by Sen. Brandt Hershman during a recent Statehouse hearing led him to back the proposal. The bill would sharply curtail the benefit that homeowners, churches, businesses and schools now reap by harnessing the sun's energy.

Hershman, of Lafayette, painted a dire picture when he promoted the bill. He inaccurately stated that without changes included in his measure, everyone who currently benefits from a state "net metering" program would be kicked off once a cap was met.

"Gone. No grandfathering. No guarantee. Nothing," he said during a Feb. 16 hearing. "People ask for a reason for the bill — this is part of it."

If that were true, roughly 1,000 utility customers in Indiana who get credit on their bill for feeding — or "net metering" — surplus power back into the grid would face the possibility of a major financial loss on their investment in alternative energy generation.

The measure, which is expected to come up for a vote before the full Senate this week, was ultimately approved by the committee on an 8-2 vote.

Hershman backed down from his comments in a statement Friday, though he insisted that his testimony was "accurate" and declared it "a non-issue."

"This is a manufactured controversy from a liberal special interest group seeking to perpetuate a program that, as it grows, will hurt consumers while financially benefiting the group's clients," Hershman said.

Indiana law currently mandates that solar panel owners are allowed to feed excess energy they generate back into the power grid, which they must be compensated for.

But utility companies say the current rate of compensation offered through net metering is too generous, and Hershman hopes to reduce that rate through his bill. Solar energy proponents say the current rate is needed in order to break even during the useful life of a solar panel system.

State law requires utilities to allow new customers to join net metering programs until about 1 percent of the utility's energy comes from an alternative energy source, such as solar.

Once the cap is met, utilities are still required to offer the benefit to existing participants, though they may turn away additional people who want to net meter, according to the Indiana Utility Regulatory Commission.

But that's not what Hershman told fellow lawmakers. And opponents suggest that his false statements were intended to drum up support for his bill.

The legislation at issue is Senate Bill 309.

Posted by Marcia Oddi on Monday, February 27, 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 2/27/17):

Thursday, March 2

Next week's oral arguments before the Supreme Court (week of 3/6/17):

Thursday, March 9

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 2/27/17):

Thursday, March 2

Friday, March 3 Next week's oral arguments before the Court of Appeals (week of 3/6/17):

Tuesday, March 7

Thursday, March 9

Friday, March 10

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, February 27, 2017
Posted to Upcoming Oral Arguments

Friday, February 24, 2017

Courts - "Federal judge orders Fort Collins to “free the nipple” — from city regulation"

Adding to a currently short ILB list of similar cases (which includes a 2010 Indiana case), Danika Worthington of the Denver Post reported this week in a long story that includes a copy of the opinion - some quotes:

Fort Collins women are now free to walk down the street without a shirt on — not that they necessarily plan to.

U.S. District Court Judge R. Brooke Jackson granted an injunction Wednesday halting a Fort Collins ordinance that prohibited women from showing their breasts in public, saying it discriminated against women and perpetuated stereotypes that sexualized female breasts.

“I find that the ordinance discriminates against women based on the generalized notion that, regardless of a woman’s intent, the exposure of her breasts in public (or even in her private home if viewable by the public) is necessarily a sexualized act,” Jackson wrote. “Thus, it perpetuates a stereotype engrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not.”

Although the case has not been finished, Jackson wrote that he would grant the injunction in part because he believes he will ultimately find that the ordinance violates the Equal Protection Clause. * * *

In his decision, Jackson ruled against the city’s claims that law maintained public order and protected children. He also ruled against their contention that the order did not discriminate because male and female breasts are different, therefore do not raise an equal protection issue.

The primary difference between male and female breasts is the ability to breastfeed. Beyond that, an expert testified in court that breasts are similarly situated. The court noted physical differences but said that was not enough to warrant different treatment from the government.

Jackson wrote that the mere sight of a female breast does not endanger children because — due to breastfeeding — it is one of the first things a child sees. Additionally, a child of any age might see a woman’s breast while she is breastfeeding, which is allowed by the ordinance, but no one has suggested that they are harmed by that experience.

Posted by Marcia Oddi on Friday, February 24, 2017
Posted to Courts in general

Ind. Gov't. - Former Columbus mayor files public records suit against the man she named chief of police"

Kirk Johannesen reports the story in The Columbus Republic. Some quotes from the lengthy story:

The former Columbus mayor has filed suit against the man she named chief of police.

Former Columbus Mayor Kristen Brown filed a lawsuit Feb. 17 against Police Chief Jon Rohde, claiming he failed to comply with a public-records request for information related to a incident involving two Bartholomew County government employees, a parole supervisor and jail commander.

The lawsuit states that Brown made a records request to Rohde on Sept. 8, 2016, about an incident that occurred about two weeks prior and asked to receive a copy of all information that is required to be maintained — including the factual circumstances and description of any injuries, property or weapons involved. * * *

Brown said she requested information on the incident on behalf of another local resident whose request for the same information was denied. Because of her understanding of public-access laws and the police department’s operating procedures, Brown said it was easier for her file the request.

“I don’t like to see government officials preying on the public’s understanding of state statutes and what’s public information,” Brown said.

Indiana’s Access to Public Records Act requires public agencies to respond to public-records requests made other than in person no later than seven days from the date the agency receives the request, the lawsuit states.

Brown received a public-incident document from Rohde on Sept. 26 — 11 days after the public-records deadline. However, she claims that it did not contain all the factual circumstances and descriptions of injuries, property or weapons involved.

“The incident report was insufficient public information,” Brown said.

She said additional information should be in the reporting officer’s narrative, which is standard operating procedure if there is an alleged crime. Even if some information in the narrative is redacted for investigatory purposes, a minimum amount should be public, she said.

Subsequently on Sept. 30, Brown filed a complaint with Luke Britt, Indiana’s public access counselor.

Rohde and the Columbus Police Department responded to the complaint through Columbus City Attorney Alan Whitted.

In the response to the public access counselor, the city asserted that it was not required to generate documentation about the Aug. 23 incident because no one was arrested, summoned to court or jailed. The city also asserted that no requirement existed for producing a document under state statute, so a complaint about a violation of state law is unfounded, but the public-incident report complies with state law.

The public access counselor issued an opinion Nov. 3 that sided with Brown and said that the public-incident report provided to her was insufficient to meet the standards of the public records act, and that if Columbus Police Department has more documented information then it should be provided to Brown.

Brown alleges that after the public access counselor’s ruling, the police department did not provide her with additional information about the case, even when she informed Rohde on Dec. 7 that more than a month had passed since Britt had issued his opinion.

The lawsuit states that Whitted responded to Brown on Dec. 22, on behalf of Rohde and the police department, and stated that all the information sent to her was all the department had about the Aug. 23 incident.

“I find that difficult to believe knowing they need to keep information by state law, and it’s the procedure to do so, and if there is no (narrative) report that would be highly unusual,” Brown said.

Here is the PAC's Nov. 3, 2016 advisory opinion,

Posted by Marcia Oddi on Friday, February 24, 2017
Posted to Indiana Government

Ind. Decisions - Supreme Court Orders Interim Suspension of Indianapolis Attorney Upon Notice of Guilty Finding

In the Matter of Breanna Joy Strubinger:

The Court, being duly advised and upon consideration of all materials submitted, now finds that Respondent has been found guilty of the following offenses under Indiana law: Operating a Vehicle While Intoxicated with Endangerment, a level 6 felony, and Resisting Law Enforcement, a class A misdemeanor.

IT IS THEREFORE ORDERED that Respondent is suspended from the practice of law in this State, effective immediately.

Posted by Marcia Oddi on Friday, February 24, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 10 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (10):

In Elizabeth Roumbos v. Samuel G. Vazanellis and Thiros and Stracci, PC, an 11-page opinion, Judge Najam writes:

Elizabeth Roumbos appeals the trial court’s entry of summary judgment for Samuel G. Vazanellis and Thiros and Stracci, PC (collectively, “the law firm”). Roumbos raises two issues for our review, which we consolidate and restate as whether the trial court erred when it entered summary judgment. We hold that, although the designated evidence shows that Roumbos, as a business invitee, was aware of a dangerous condition on the floor of the business, a genuine question of material fact exists with respect to whether the business owner should have anticipated Roumbos’ harm despite her knowledge. Accordingly, we reverse and remand for further proceedings.
In East Wind Acupuncture, Inc. v. Review Board of the Indiana Department of Workforce Development and Elly A. Lesnick , a 10-page opinion, Judge Najam concludes:
The Review Board concluded that Zaranski’s treatment of Lesnick gave Lesnick good cause to voluntarily leave her employment. That judgment was squarely within the Review Board’s prerogative on this record. Employees are not obliged to endure treatment such as Zaranski’s treatment of Lesnick. In other words, Zaranski’s treatment of Lesnick was so unreasonable or unfair that “a reasonably prudent person would be impelled to leave” her employment because of it. See Ky. Truck Sales, 725 N.E.2d at 526. East Wind’s arguments to the contrary simply seek to have this court reweigh the evidence on appeal or otherwise consider evidence other than that which is most favorable to the Review Board’s judgment, which we will not do. Accordingly, we affirm the Review Board’s judgment.
C.S. v. State of Indiana

Emmett Reece Sandoval v. State of Indiana

Deborah S. Pridemore v. State of Indiana

Jefferson Jean-Baptiste v. State of Indiana

Jerry L. McClure v. State of Indiana

Billy Brantley v. State of Indiana

Keyshawn D. Sanders v. State of Indiana

Michael Dowdell v. State of Indiana

NFP civil decisions today (3):

Jason Daniel Carlton Webb v. Holly White (mem. dec.)

Aviation Consultants, Inc. v. Timken Alcor Aerospace Technologies,; Honaker Aviation, Inc.; and Jet Access Aviation, LLC (mem. dec.)

Sheila Manhas, M.D. v. Franciscan Hammond Clinic, LLC, Hammond Clinic, LLC, and Deepak Majmudar, M.D., Individually (mem. dec.)

NFP juvenile and criminal decisions today (4):

J.P., Jr. v. State of Indiana (mem. dec.)

Johiney Jesus Acuna-Hinojosa v. State of Indiana (mem. dec.)

Stacey Jo Caton v. State of Indiana (mem. dec.)

Daris Deshawn Grant v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, February 24, 2017
Posted to Ind. App.Ct. Decisions

Ind. Courts - 7th Cir. "to hear Wisconsin's voter ID, early voting cases today"

Patrick Marley reports in the Milwaukee Journal Sentinel in a long story that begins:

CHICAGO – Wisconsin’s voter ID and early voting laws return to the limelight Friday.

A panel of three federal appeals judges will hear arguments to determine whether to reinstate restrictions on early voting and how to deal with people who have the most difficulty getting identification for voting.

The pair of cases the U.S. 7th Circuit Court of Appeals is hearing will shape what voting rules are in place next year, when Republican Gov. Scott Walker and Democratic U.S. Sen. Tammy Baldwin are up for re-election.

Since 2011, Walker and Republicans who control the Legislature have approved the voter ID law, eliminated early voting on weekends and tightened other voting regulations. A string of lawsuits followed.

Last year, U.S. District Judge James Peterson in Madison struck down the restrictions on early voting and a prohibition on allowing early voting in more than one place in each municipality. He found those laws discriminated against minorities.

His ruling allowed local officials to decide when and where to allow early voting. Milwaukee and Madison — the state’s Democratic strongholds — conducted early voting at multiple locations, but the results in November were good for Republicans nonetheless. Donald Trump became the first Republican presidential candidate to win Wisconsin since Ronald Reagan in 1984.

The panel of judges on Friday will hear an appeal from Republican Attorney General Brad Schimel seeking to put the early voting restrictions back in place.

It will also hear a separate appeal from the liberal groups that brought the lawsuit — One Wisconsin Institute and Citizen Action of Wisconsin Education Fund — over aspects of the case they lost. For instance, the groups want the courts to overturn Republican-backed laws that ended straight-ticket voting and the use of special registration deputies to help people sign up to vote.

The panel will also hear arguments on aspects of the voter ID law.

Posted by Marcia Oddi on Friday, February 24, 2017
Posted to Indiana Courts

Ind. Gov't. - More on: Attorney General Opinions, and Golf Carts

Updating this ILB post from Feb. 21st, on Feb. 22nd the Attorney General's office posted to the Indiana Register a number of Official Opinions from prior years (and prior AGs).

Posted by Marcia Oddi on Friday, February 24, 2017
Posted to Indiana Government

Ind. Courts - "Clark County judge applying for Indiana Supreme Court vacancy"

Applications are due March 3rd, but one applicant's name is already public, Clark County Circuit Court No. 4 Judge Vicki Carmichael.

Judge Carmichael, according to this story by Elizabeth DePompei in the Clark County News & Tribune:

... is again applying for a vacancy on the state's highest court. The spot is left open by Justice Robert Rucker, who is retiring after 26 years as an appellate court judge.

Carmichael applied for a vacancy in 2009 and again in 2016 when Justice Brent Dickson retired. Last year, Carmichael made it to a second round of interviews and became one of 15 finalists. She didn't make it to the pool of three finalists, but each time she moves through the process, Carmichael said she learns something new.

"And so this time what I found out — and this always seems a little odd to a judge — is I have a list of who is on the nominating commission, I can contact them directly, speak to them," Carmichael said.

"So that's what I'm going to do."

The nominating commission is composed of six people and chaired by Chief Justice Loretta Rush, according to a news release. Three commission members are elected by their peers and three are appointed by the governor.

The commission will review applications and interview qualified candidates at the Indiana State House in Indianapolis in March and April. Commission members then vote to send the three most qualified candidates to Gov. Eric Holcomb, who has the final say on who fills the vacancy.

Carmichael said she believes the commission chooses candidates based on qualifications. But once the decision the falls to the governor, things can get political. Carmichael was elected to Clark County Circuit Court No. 4 as a Democrat. Holcomb was elected in November as a Republican.

While most prospective judges in Indiana counties run in partisan elections, Carmichael said it's not a partisan kind of job.

"Once you're in office, you don't make your decisions based on politics, because you can't," she said. "Politics doesn't play a part in your decision making when you're looking at the facts, when you're looking at the issues and the witnesses. It doesn't matter what party they're from. The facts are the facts."

If she makes it to the final three, Carmichael expects she'll have the chance to meet Holcomb and make her case for keeping politics out of his decision making. She also noted that Republican governors have previously appointed Democrats, and vice versa.

Posted by Marcia Oddi on Friday, February 24, 2017
Posted to Vacancy on Supreme Court - 2017

Thursday, February 23, 2017

Ind. Gov't. - "Could be 1st state requiring parental notification when unemancipated minors pursue 'judicial bypass' procedure for abortion"

Niki Kelly of the Fort Wayne Journal Gazette reports on yesterday's Senate committee hearing on Senate Bill 404:

Pregnant girls would have to confront their parents if they want an abortion, according to a bill passed 6-4 by the Senate Judiciary Committee on Wednesday.

If Senate Bill 404 becomes law, Indiana would be the first state to require parental notification when unemancipated minors pursue the “judicial bypass” procedure for an abortion.

“The purpose is to strengthen parental rights,” said Corinne Purvis, attorney for Indiana Right to Life. “Parents have a constitutional right to determine the upbringing of their children.” * * *

Indiana law currently requires those younger than 18 to get permission from at least one parent before an abortion. But if they can’t or don’t want to, they can seek a waiver of that requirement from a judge, who considers whether the girl is mature enough to make the decision. In those cases, parents are not currently notified.

Statewide in 2015, 25 girls between the ages of 10 and 14 had abortions, and 219 between the ages of 15 and 17 did. Testimony Wednesday said there are about 20 cases of so-called judicial bypass each year in Indiana.

Jane Henegar, executive director for the American Civil Liberties Union of Indiana, argued that the new notification provision is unconstitutional. That’s because courts have ruled that a girl’s parents can’t exercise an absolute veto over her right to an abortion.

States requiring parental notification or consent must provide an alternate process – for example, petitioning a judge for a waiver. By requiring the girl to notify her parents of the petition, Henegar said it runs afoul of those rulings, and the group would challenge the requirement in court if it becomes law.

But that isn’t all the legislation would do. It would also require an adult giving consent for the abortion to prove to the abortion provider that he or she is the girl’s parent or legal guardian through birth records, court orders and ID cards. Indiana Right to Life and several pro-family groups allude to situations where adults are accompanying young girls to get an abortion and lying about being a parent.

Planned Parenthood of Indiana and Kentucky – the state’s largest abortion provider – requires an ID card and makes a copy. But they require only that the adult sign the consent form under penalties of perjury.

The bill also would require a judge to use a higher standard of evidence for the girl’s maturity – clear and convincing evidence, rather than a simple preponderance – before granting the waiver.

But the parental notification provision in waiver cases is clearly the most problematic.

It was unclear whether one or both parents would have to be notified. One senator pointed out that a girl whose father molests her would have to notify her rapist that she is trying to get an abortion. And several people who testified said the bill requires the girl to use an expensive and time-consuming civil process service.

The bill requires a judge to rule within 48 hours on a waiver request, but it also says the judge can’t rule without proof of notification of at least one parent.

Posted by Marcia Oddi on Thursday, February 23, 2017
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 2 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (0):

NFP juvenile and criminal decisions today (2):

Jay F. Vermillion v. State of Indiana (mem. dec.)

Ricky L. Allen v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, February 23, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Bill prohibiting 'sanctuary universities' moves forward in Indiana Senate"

An ILB post from April 10, 2013 begins (quoting a story from the Kokomo Tribune):

On Tuesday, the House Education Committee voted 8-4 in favor of a bill that would partially roll back a 2011 law banning undocumented students who grew up in Indiana from accessing the lower in-state tuition rate at the state’s public universities. The 2011 law, which requires they pay the more expensive out-of-state rate, led to hundreds of students dropping out.

The version of Senate Bill 207 that passed out of the House committee only covers the students who were enrolled in college when the ban went into effect two years ago.

But Republican bill backers want to expand the legislation’s language to cover more students. With support from Republican House Speaker Brian Bosma, they plan to introduce an amendment to do so when the bill comes up for debate in the full House.

“It really comes down to this: every child in our state needs the opportunity to have an education, “ said state Rep. Rebecca Kubacki, a Republican from Syracuse and the House sponsor of Senate Bill 207.

A July 28, 2013 story provides some follow-up.

Now, in the 2017 General Assembly, the question appears to be not how much additional tuition to charge undocumented immigrants, but whether they may attend Indiana schools at all.

Kaitlin L. Lange of the Evansville Courier & Press reports, in a story reprinted in the Indiana Economic Digest:

An Indiana Senate committee approved a measure Tuesday to make “sanctuary universities” illegal in Indiana — a move that would prohibit universities from letting undocumented immigrants attend school, with some exceptions.

Those who were protected under former President Obama’s Deferred Action for Childhood Arrivals Program (DACA) will still be allowed at universities under House Bill 423 because they were brought into the country as children. But if President Trump were to repeal that program, Indiana universities would no longer be able to allow any undocumented immigrants to attend universities.

The bill’s passage through committee comes just a day after the U.S. Department of Homeland Security sent a memo implementing Trump’s plans to crack down on undocumented immigrants. The memo called for government agents to identify any undocumented immigrant for deportation, with a focus on those who’ve committed crimes.

Trump left DACA untouched for now. Homeland Security spokeswoman Gillian Christensen said Tuesday that those deportation protections for about 750,000 undocumented immigrants would continue to be honored.

If Trump repeals DACA, bill author Sen. Michael Young, R-Indianapolis, said they would have to re-examine the state’s policies.

Still, some opponents of the Indiana Senate bill worry the legislation would just cause worry for immigrants already concerned with Trump’s policy promises on immigration. * * *

The legislation, if it passes in the House and Senate, would only apply to the seven state universities, but a couple of senators suggested extending the measure to private universities on the Senate floor with amendments.

While definitions on “sanctuary universities” can vary slightly, this legislation prohibits universities from not sharing immigration status of students with government officials, maintains that it is illegal for undocumented students to attend universities and prohibits schools from offering instate benefits to these students. Young said the bill has nothing to do with immigration policy; it just requires universities to comply with state and federal government. He maintained that this bill was an expansion of previous legislation that outlawed sanctuary cities. * * *

Some senators said the bill was unnecessary because of the lack of sanctuary schools in the state and were concerned it would only lead to negative perceptions about what the legislature was trying to accomplish.

Posted by Marcia Oddi on Thursday, February 23, 2017
Posted to Indiana Government

Ind. Gov't. - "Bill to reduce regulations on livestock operations raising concerns"

Supplementing this Feb. 21st ILB post headed "Does vote on mega farms stink?" Carol Kugler reports in the $$ Bloomington Herald Times (here reprinted in part in Indiana Economic Digest) - some quotes:

Under current Indiana law, anyone who plans to operate, start construction on or expand a confined feeding operation must submit an application and receive a permit from IDEM before construction or expansion of the facility can begin.

Before approval is given, IDEM engineers review the design and conduct inspections of buildings and manure storage structures. There are also routine and complaint-based inspections.

That could change if House Bill 1494 is passed this year by the Indiana Legislature, and representatives of the Hoosier Environmental Council as well as Hoosier residents are opposing the bill, which they believe takes away some of the needed rules and regulations governing confined feeding operations.

In the synopsis for HB 1494, it states that it would replace the “current prohibition against starting construction or expansion of a CFO without the prior approval of the Department of Environmental Management with the requirement that a person obtain a permit to construct and operate a confined feeding operation.”

The Hoosier Environmental Council is opposed to taking away the rules and regulations that help ensure there are no environmental issues related to the confined feeding operations. Kim Ferraro, senior staff attorney and director of agriculture policy for the advocacy group, said the proposed bill would take away the need for a person or company wanting to start or expand a CFO to notify neighbors and the county government before a permit is issued.

State Rep. David Wolkins, R-Warsaw, author of the bill, said that it would not change the current law, saying that the bill’s wording that a person must obtain a permit means that they must have prior approval from IDEM to receive that permit. “We did not change any existing state requirement” in the bill, Wolkins said.

More from the story:
Another major concern of the Hoosier Environmental Council and Ferraro is that the actual person or organization that applies for the CFO permit no longer would have to be the person or corporation that owns the facility. Also, HB 1494 would allow a person or company applying for the permit to disclose only those prior environmental violations of federal, state or foreign laws that happened in the past five years.

Ferraro said one fear is that large corporations will be able to hide behind someone else who will file for either a new or expanded feeding operation. The concern is that no one will know who the true decision makers for the operation are until it’s too late.

“House Bill 1494 in isolation might not be as problematic,” Ferraro said, but the bill takes current law “further in the wrong direction.” She was also concerned that not disclosing the whole history of environmental violations would not give an accurate portrayal of the applicant.

When asked about those concerns, Wolkins said his proposed bill would be looking into the history of the person who is directly responsible for the operation. “The thought is that the investor who puts money into it, why should they have to go through a background check?”

Before the bill was passed out of committee by a vote of 7 to 3, there were three hearings this month for proponents and opponents to talk to the House Environmental Affairs Committee. Ferraro said there was “standing room only” at all three of the hearings, with most of the people speaking in opposition to the bill.

After the committee voted to allow the bill to move forward, Ferraro sent out a statement that said in part, “Our lawmakers should be looking for ways to address the serious gaps in public health safeguards that leave our environmental and rural communities vulnerable and create perverse incentives for industrial livestock agriculture at the expense of sustainable farmers.

“Our legal opinion remains that HB 1494 would make matters worse by further weakening state permitting requirements for factory farms and making it even easier for factory farms to proliferate regardless of their impact on property values, our lakes and streams, the air we breathe and the quality of life in our rural communities.”

ILB: Rep. Wolkin is also the author of the "no more stringent" law, vetoed last year but overridden earlier this month. The measure prevents prevents state environmental standards from being stricter than federal requirements without prior legislative review.

Given that the new head of U.S. EPA has vowed to eliminate a large number of federal environmental regulations, leaving each state to craft its own limitations, this could pose serious challenges in coming years.

Posted by Marcia Oddi on Thursday, February 23, 2017
Posted to Indiana Government

Wednesday, February 22, 2017

Environment - "The Pruitt Emails: E.P.A. Chief Was Arm in Arm With Industry"

Coral Davenport and Eric Lipton of the NY Times report today:

WASHINGTON — During his tenure as attorney general of Oklahoma, Scott Pruitt, now the Environmental Protection Agency administrator, closely coordinated with major oil and gas producers, electric utilities and political groups with ties to the libertarian billionaire brothers Charles G. and David H. Koch to roll back environmental regulations, according to over 6,000 pages of emails made public on Wednesday.

The publication of the correspondence comes just days after Mr. Pruitt was sworn in to run the E.P.A., which is charged with reining in pollution and regulating public health. * * *

The companies provided him draft letters to send to federal regulators in an attempt to block federal regulations intended to regulate greenhouse gas emissions from oil and gas wells, ozone air pollution, and chemicals used in fracking, the email correspondence shows.

They held secret meetings to discuss more comprehensive ways to combat the Obama administration’s environmental agenda, and the companies and organizations they funded repeatedly praised Mr. Pruitt and his staff for the assistance he provided in their campaign.

The correspondence points to the tension emerging as Mr. Pruitt is now charged with regulating many of the same companies with which he coordinated closely in his previous position. * * *

The emails show that his office corresponded with those companies in efforts to weaken federal environmental regulations — the same rules he will now oversee.

Please find attached a short white paper with some talking points that you might find useful to cut and paste when encouraging States to file comments on the SSM rule,” wrote Roderick Hastie, a lobbyist at Hunton & Williams, a law firm that represents major utilities, including Southern Company, urging Mr. Pruitt’s office to file comments on a proposed E.P.A. rule related to so-called Startup, Shutdown and Malfunction Emissions. [ILB emphasis] * * *

Despite the large volume of correspondence between Mr. Pruitt’s office and the industry players, the emails are unlikely to cause Mr. Pruitt significant new problems. They do expand on email exchanges or topics that previously had been disclosed.

The Oklahoma attorney general’s office has withheld some documents, asking the judge to determine if they can be exempted from the order requiring their release. There are also other pending open-records requests, from the Center for Media and Democracy, The Times and other news organizations.

This site, run by the Center for Media and Democracy, makes available the previously withheld emails.

See also this Feb. 17th ILB post.

Posted by Marcia Oddi on Wednesday, February 22, 2017
Posted to Environment

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 12 NFP memorandum decision(s))

For publication opinions today (5):

In C.S., a Minor Child, by Her Next Friends and Parents, John Stevens and Laura Stevens v. Aegis Women's Healthcare, P.C., Brian W. Cook, M.D., Rhonda S. Trippel, M.D., and Lillette (Alice B.) Wood, M.D., a 10-page opinion with amicus briefs filed on both sides, Chief Judges Vaidik writes:

With limited exceptions, a medical-malpractice plaintiff cannot take her case to court until she has submitted a proposed complaint to the Indiana Department of Insurance and received an opinion from a panel of doctors (a “medical review panel”). Once she has made it through the panel process and into court, however, the plaintiff can present any theory of malpractice that (1) was encompassed by the proposed complaint that was before the panel and (2) is related to evidence that was submitted to the panel. McKeen v. Turner, 61 N.E.3d 1251 (Ind. Ct. App. 2016), trans. pending.

In the case before us, John and Laura Stevens filed a proposed complaint against Aegis Women’s Healthcare, P.C. and several of its doctors (collectively, “Aegis”) after their daughter was born, via emergency c-section, with various health problems. The medical review panel issued an opinion in favor of Aegis, theory of malpractice is that Aegis waited too long to perform the c-section. The parties agree that this theory fell within the broad allegations in the Stevenses’ proposed complaint but dispute whether there was evidence relating to the theory submitted to the panel. Finding that there was, we reverse the trial court’s grant of summary judgment to Aegis. * * *

The Stevenses ask us to reverse the trial court’s ruling that they did not present their “delayed-c-section” theory to the medical review panel and that they are therefore barred from presenting it in court. On appeal from a grant of summary judgment, we address the issues de novo, giving no deference to the trial court’s decision. * * *

Because evidence relating to the “delayed-c-section” theory was submitted to the medical review panel, and because the proposed complaint encompassed that theory, the Stevenses are entitled to present it in court. See McKeen, 61 N.E.3d at 1261. Therefore, we reverse the trial court’s grant of summary judgment in favor of Aegis.

In Pastor Llobet, M.D. v. Juan Gutierrez , 12-page opinion with amicus briefs filed on both sides, Chief Judge Vaidik writes:
Dr. Pastor Llobet performed an angiogram on Juan Gutierrez, and Gutierrez now claims that Dr. Llobet committed medical malpractice. As required by Indiana’s Medical Malpractice Act, Gutierrez first filed a proposed complaint with the Department of Insurance and presented his case to a panel of doctors (a “medical review panel”). His specific argument to the panel was that Dr. Llobet was negligent in his technical performance of the angiogram. The panel issued an opinion in favor of Gutierrez, who then took the case to court.

Shortly before trial was set to begin, it became apparent that Gutierrez intended to present a second theory of malpractice: that the angiogram was unnecessary, i.e., not “indicated.” At that point, Dr. Llobet turned over records from testing that was performed the day before the angiogram—records that apparently support his position that the angiogram was, in fact, indicated. He also moved to strike Gutierrez’s “angiogram-not-indicated” theory altogether, on the basis that Gutierrez did not argue it to the medical review panel. Gutierrez countered with a motion to bar Dr. Llobet from using the testing records, noting that the discovery deadline had passed and arguing that the records had been requested on multiple occasions. The trial court denied Dr. Llobet’s motion but granted Gutierrez’s motion. As it stands, then, Gutierrez would be allowed to present his “angiogram-not-indicated” theory, but Dr. Llobet would not be allowed to respond with a key piece of evidence contradicting that theory.

Because Gutierrez’s “angiogram-not-indicated” theory was encompassed by the proposed complaint he filed with the Department of Insurance and is related to evidence that was submitted to the medical review panel, we affirm the denial of Dr. Llobet’s motion to strike. However, because we conclude that Dr. Llobet should be allowed to use the pre-angiogram testing records to respond to the allegation that the angiogram was not indicated, we reverse the trial court’s order barring that evidence.

Thomas E. Stettler v. State of Indiana, a 15-page opinion, Judge Baily concludes:
The trial court’s admission of evidence barred by Evidence Rule 404(b) was harmless error. The prosecution did not engage in misconduct during closing arguments, and there was accordingly no fundamental error.
In Ashley N. McFall v. State of Indiana, a 15-page opinion, Chief Judge Vaidik writes:
Ashley N. McFall was convicted of Class A felony dealing in methamphetamine (manufacturing) based in part on videos that a man took of her using his personal cell phone and then showed to a detective. The man, however, did not testify at trial.

In order to authenticate videos under the “silent-witness theory,” there must be evidence describing the process or system that produced the videos and showing that the video is an accurate representation of the events in question. See Ind. Evidence Rule 901(b)(9). Here, however, when the videos were admitted into evidence at trial during the detective’s testimony, there was no showing that the videos had not been altered before they were shown to the detective. However, we find that any error in the admission of the videos under the silent-witness theory was rendered harmless by McFall’s subsequent testimony.

McFall also contends that the evidence is insufficient to support her conviction and that her forty-year sentence is inappropriate. While we find that the evidence is sufficient to support her conviction, we revise her sentence to the advisory term of thirty years given that this is McFall’s first felony conviction and the progress that she has made since her arrest to overcome her addiction and get her life in order.

In Bryce A. Swihart v. State of Indiana, a 9-page opinion, Judge Bailey concludes:
There was sufficient evidence to support Swihart’s conviction. The trial court did not err in determining jail credit time. Affirmed.
NFP civil decisions today (2):

Lisa Baushke v. Eric Miller (mem. dec.)

Han Chong v. Jung Hee Kim (mem dec.)

NFP juvenile and criminal decisions today (10):

Samuel R. White v. State of Indiana (mem. dec.)

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

Alberto Cruz v. State of Indiana (mem. dec.)

Sarah Speck v. State of Indiana (mem. dec.)

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

Asia Marshall v. State of Indiana (mem. dec.)

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

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

Jason J. Green v. State of Indiana (mem. dec.)

Jay E. Millen v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, February 22, 2017
Posted to Ind. App.Ct. Decisions

Environment - "U.S. Steel takes pollution control agency to court"

Joseph S. Pete reports today in the NWI Times that:

U.S. Steel has taken legal action against the Minnesota Pollution Control Agency, asking a judge to compel the environmental regulators to hurry up with a long-pending permit.

The Pittsburgh-based steelmaker has been seeking to renew a water permit for its Minnesota Ore Operations Minntac facility, a mine that sends iron ore pellets on freighters over the Great Lakes to Northwest Indiana steel mills, since 1992. U.S. Steel, a major employer in the Region, filed a claim that asks the court to require the Minnesota state agency finally to resolve long-standing issues that have held the permit renewal up for the last 25 years.

U.S. Steel hopes to avoid "significant and unnecessary capital investments in Minntac that could put the facility at a competitive disadvantage, threatening the future viability of the operations and the jobs employed at the operation."

“U.S. Steel has worked cooperatively and successfully with Minnesota's elected leadership on many issues over the years, but we believe filing a Mandamus claim was our only option in this situation,” U.S. Steel Minnesota Ore Operations General Manager Larry Sutherland said. “We felt compelled to take this course of action to ensure specific issues we’ve raised in the past — and MPCA has acknowledged the need to address — are fully resolved so they can be incorporated into our NPDES permit renewal. We recognize the time and resources MPCA needs to do their jobs effectively, and we agree that matters related to our shared environment should be determined by thorough, thoughtful due diligence and scientific evidence."

ILB: A 25-year wait for a permit does seem a long time.

Especially since, if the ILB recalls correctly, the entity continues to operate under the old, much more lenient NPDES standards until the permit is issued.

Posted by Marcia Oddi on Wednesday, February 22, 2017
Posted to Environment

Ind. Law - "Guns are becoming a running theme in Indiana legislature"

A good story today by Robert King of the Indianapolis Star - some quotes:

The proposal [HB 1071] would enable people shielded by court orders of protection — such as victims of domestic violence — to carry handguns without a license.

* * * In a lopsided 71-26 vote, the Indiana House approved sending the measure to the Senate.

"It is extending the right of protection outside the home for those who need it most," said Rep. Sean Eberhart, R-Shelbyville, author of the bill.

More broadly, Eberhart acknowledged the bill strengthens Hoosiers' Second Amendment right to bear arms. It's a popular theme in the General Assembly, where more than a dozen gun-related bills have been introduced this session, including two others that advanced Tuesday.

Senate Bill 43 would enable Department of Corrections workers to keep guns in their locked cars on prison property. It requires that guns must be kept in a locked case, in a locked car and out of sight. Sen. James Tomes, R-Wadesville, said he made the proposal at the request of corrections employees. The Senate is expected to consider final passage Thursday.

Senate Bill 344
would make it a felony for undocumented immigrants to possess a firearm in Indiana. Sen. Michael Young, R-Indianapolis, said he’s been hearing prosecutors in Southern Indiana report an uptick in gun crimes by immigrants here illegally. Already, it’s a violation of federal law for the undocumented to possess a gun, Young said, but local law enforcement agencies need a means to prosecute such crimes under state law. The bill passed the Senate and now moves to the House.

The zeal for gun rights was evident in Eberhart's bill, which carries an amendment that establishes a summer study committee to evaluate the total repeal of Indiana's gun licensing laws. Rep. Jim Lucas, R-Seymour, added the amendment after a bill he proposed to repeal the gun licensing laws became stuck in committee.

That led ​Democrats to describe Eberhart's bill as being less about domestic violence than it was a “Trojan horse” designed to erode firearms restrictions. They've pointed out that domestic violence experts say women are five times more likely to die in domestic violence situations when a gun is present.

Posted by Marcia Oddi on Wednesday, February 22, 2017
Posted to Indiana Law

Law - More on President Trump and civil asset forfeiture

Updating this ILB post from Feb. 10th, Jennifer G. Hickey reported for Fox News on Feb. 13th in a story that begins:

The White House has riled the country's civil libertarian wing after President Trump enthusiastically voiced support for a controversial law enforcement tool that allows an individual’s property or assets to be seized without a guilty verdict.

The president weighed in on what's known as "civil asset forfeiture" during an Oval Office meeting last week with sheriffs. The president, who ran on a law-and-order message, said he shared their desire to strengthen the practice and even said he would “destroy” the career of a Texas politician trying to end it.

The comments revived tensions with libertarians who have been fighting the practice under both Democratic and Republican administrations. Already piqued by the selection of former Alabama Sen. Jeff Sessions, a vocal supporter of asset forfeiture, to lead the Justice Department, the Libertarian Party itself condemned the comments.

“It was really disappointing to hear those words. He campaigned on the idea of helping people who are on the low end of the economic spectrum and this [law] disproportionately affects minorities and those who do not have the means to hire an attorney,” Libertarian National Committee Chair Nicholas Sarwark told Fox News.

Sarwark called the practice "immoral," adding that it is simply “government theft of individual property that flips the nation’s legal system on its head.”

Posted by Marcia Oddi on Wednesday, February 22, 2017
Posted to General Law Related

Ind. Decisions - 7th Circuit issued one Indiana opinion yesterday, a reversal after rehearing en banc

In Alma Glisson v. Correctional Medical Services (SD Ind., Barker), a 36-page, 6-4 opinion, Chief Judge Wood writes:

Nicholas Glisson entered the custody of the Indiana Department of Corrections on September 3, 2010, upon being sentenced for dealing in a controlled substance (selling one prescription pill to a friend who turned out to be a confidential informant). Thirty-seven days later, he was dead from starvation, acute renal failure, and associated conditions. His mother, Alma Glisson, brought this lawsuit under 42 U.S.C. § 1983. She asserts that the medical care Glisson received at the hands of the Department’s chosen provider, Correctional Medical Services, Inc. (known as Corizon) violated his rights under the Eighth Amendment to the U.S. Constitution (made applicable to the states by the Fourteenth Amendment). A panel of this court concluded that Corizon was entitled to summary judgment in its favor. See Glisson v. Indiana Dep’t of Corr., 813 F.3d 662 (7th Cir. 2016). The court decided to rehear the case en banc in order to examine the standards for corporate liability in such a case. We conclude that Glisson presented enough evidence of disputed, material issues of fact to proceed to trial, and we therefore reverse the district court’s judgment. * * *

In closing, we reiterate that we are not holding that the Constitution or any other source of federal law required Corizon to adopt the Directives or any other particular document. But the Constitution does require it to ensure that a well-recognized risk for a defined class of prisoners not be deliberately left to happenstance. Corizon had notice of the problems posed by a total lack of coordination. Yet despite that knowledge, it did nothing for more than seven years to address that risk. There is no magic number of injuries that must occur before its failure to act can be considered deliberately indifferent. See Woodward v. Corr. Med. Servs., 368 F.3d 917, 929 (7th Cir. 2004) (“CMS does not get a ‘one free suicide’ pass.”).

Nicholas Glisson may not have been destined to live a long life, but he was managing his difficult medical situation successfully until he fell into the hands of the Indiana prison system and its medical-care provider, Corizon. Thirty-seven days after he entered custody and came under Corizon’s care, he was dead. On this record, a jury could find that Corizon’s decision not to enact centralized treatment protocols for chronically ill inmates led directly to his death. The judgment of the district court is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

[p. 21] SYKES, Circuit Judge, with whom BAUER, FLAUM, and KANNE, Circuit Judges, join, dissenting. * * *

Nicholas Glisson arrived in Indiana’s custody suffering from complicated and serious medical conditions. Some of Corizon’s medical professionals may have been negligent in his care, as Dr. Sommer maintains, and their negligence may have hastened his death. That’s a tragic outcome, to be sure; if substantiated, the wrong can be compensated in a state medical-malpractice suit. Under traditional principles of Monell liability, however, there is no basis for a jury to find that Corizon was deliberately indifferent to a known or obvious risk that its failure to adopt formal protocols in compliance with HCSD-2.06 would likely lead to constitutional violations. Nor is there a factual basis to find that this alleged gap in corporate policy caused Glisson’s death. Accordingly, I would affirm the summary judgment for Corizon.

Posted by Marcia Oddi on Wednesday, February 22, 2017
Posted to Ind. (7th Cir.) Decisions

Tuesday, February 21, 2017

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 15 NFP memorandum decision(s))

For publication opinions today (1):

In Otis Sams, Jr. v. State of Indiana , a 20-page opinion, Judge Mathias writes:

Otis Sams (“Sams”) was convicted in Putnam Circuit Court of Level 4 felony possession of methamphetamine. Sams appeals, challenging the warrantless search and seizure of the evidence against him. We conclude that the State did not carry its burden to show that the inventory search of Sams’s truck was sufficiently regulated; therefore, we reverse. * * *

For these reasons, we conclude that the search of Sams’s truck was not sufficiently regulated by standardized police procedures and therefore was pretextual. The vague, conflicting inventory regime of the GPD was not capable of sufficiently regulating the search, but even if it was, the officers’ major deviation from that regime gives rise to an inference of pretext confirmed by other evidence and not overcome by the State.

The trial court abused its discretion by ruling the contrary. All fruits of the inventory search of Sams’s truck were inadmissible. Because no admissible evidence supported Sams’s conviction for possession of methamphetamine, that conviction must be vacated. We therefore vacate Sams’s conviction and remand with direction to grant Sams’s motion to suppress and for any further proceedings required in accordance with this opinion. Reversed.

NFP civil decisions today (3):

Robert Schuyler v. Donna Schuyler (mem. dec.)

Timothy E. Strowmatt v. Keith Butts and Mike Smith (mem. dec.)

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

NFP juvenile and criminal decisions today (12):

Brian Eldridge v. State of Indiana (mem. dec.)

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

Kevin Sandifer v. State of Indiana (mem. dec.)

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

John C. McClafferty v. State of Indiana (mem. dec.)

Lazaro Miranda, a/k/a Randall Izquierdo v. State of Indiana (mem. dec.)

Rodney Joe McGuire v. State of Indiana (mem. dec.)

Charles R. Whittington v. State of Indiana (mem. dec.)

Quincy D. Sullivan v. State of Indiana (mem. dec.)

Francisco Esparza-Hernandez v. State of Indiana (mem. dec.)

Brandon M. Gilbert v. State of Indiana (mem. dec.)

Ivan Gooden, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, February 21, 2017
Posted to Ind. App.Ct. Decisions

Law - "Trying to Minimize the Misery of Mug Shots"

The ILB has had a number of posts in the past about the online mug shot racket. On Feb. 12th, the entire "The Haggler" column by David Segal in the NY Times was devoted to this issue. From the intro:

For the uninitiated, these are sites that scrape online mug shots from sheriff’s departments around the country and post them. This is a nightmare for the arrestees because when people search for their names online — for a job-related background check, for instance — up pops the image. The sites typically offer to delete it for a fee, anywhere from $20 to $400. This is high-tech extortion, and the victims are often people who have never been convicted of a crime. They were only arrested.

Posted by Marcia Oddi on Tuesday, February 21, 2017
Posted to General Law Related

Ind. Gov't. - Attorney General Opinions, and Golf Carts

Official opinions of the Indiana Attorney General have been infrequently issued in recent years. Here, for instance, is a list of those issued from 2009 on, averaging less than a half-dozen per year. Here is a list from 2001 to 2008; it is much the same except for 2001, when a dozen were issued.

In past years, many more opinions were issued: for instance, in 1963, there were 64.

The opinions were bound in volumes; a set ranging over the years may be found in the Indiana Supreme Court library.

IUPUIScholarWorks Repository has an online collection that includes volumes of the Indiana Attorney General Opinions from 1933-1976 and will eventually include back to 1921.

There may be a gap in online availability from 1977 through 2000.

HeinOnline, a subscription legal publication service, has Indiana's Attorney General opinions from 1873-2016.

This century's decline in AG opinions may be turning around. Already this year, AG Curtis Hill has issued two opinions. Both are engaging and well-written.

The ILB was particularly interested in Official Opinion 2017-1, "RE: Municipal Regulation of Golf Carts," a topic the ILB has followed closely since 2004.

Posted by Marcia Oddi on Tuesday, February 21, 2017
Posted to Indiana Government

Ind. Gov't. - "Bills that allow police to take DNA upon arrest advance"

Madeline Buckley of the Indianapolis Star reports in a long story:

Two bills that would allow police to take DNA samples from people who are arrested, but not yet convicted, are steadily advancing — but lawmakers have added safeguards for people who may have been falsely accused.

In Indiana, law enforcement officials can only enter DNA samples into a national database upon a felony conviction. But some lawmakers are pushing for a lower threshold, allowing police to take a DNA sample when they make a felony arrest.

Bills similar to those proposed this session — House Bill 1577 and Senate Bill 322 — have failed to generate support in the past, but the issue gained traction last year when DNA from an Ohio database that includes arrestees helped solve both the slaying of an elderly Zionsville man in November and attacks on two Indianapolis police stations.

Posted by Marcia Oddi on Tuesday, February 21, 2017
Posted to Indiana Government

Ind. Courts - Johnson Co. Judge Cynthia Emkes announces retirement

Michele Holtkamp of the Johnson County Daily Journal reports today in a long story:

Johnson County’s longest-serving judge has decided to resign from her post in Superior Court 2, where she has overseen hundreds of trials and issued sentences on crimes ranging from drunk driving to death penalty cases.

Superior Court 2 Judge Cynthia Emkes will resign effective April 28, with nearly four years left in her term. She is the county’s longest-serving judge and first female judge and has presided over her court since 1987.

She announced her decision to retire before the end of her term this week.

“I’ve thought about retiring in the past; however, my decision always came down to the fact that I didn’t want to stop doing something I loved and that I would miss terribly,” Emkes said.

“Given all the same considerations now, I’ve concluded it’s not possible to continue my judicial service and at the same time give due consideration to my family and health needs. I pray that I will strike a happy medium serving in part-time status as a senior judge,” she said, referring to a state program where former or retired judges fill in for full-time judges or work on certain cases.

Gov. Eric Holcomb will select her replacement. * * *

She had been re-elected in 2014 to a six-year term, which means the judge appointed to replace her will serve through the end of 2020.

Posted by Marcia Oddi on Tuesday, February 21, 2017
Posted to Indiana Courts

Ind. Decisions - "Appeals court overturns $550,000 judgment against Hammond schools"

The Court of Appeals opinion Feb. 14th in School City of Hammond District v. Chad Rueth (ILB summary here, 3rd case) is the subject of this story by Dan Carden in today's NWI Times. From the story:

The Indiana Court of Appeals has overturned a $550,000 judgment against the School City of Hammond after determining that a former Gavit High School athletic director was neither defamed nor blacklisted while seeking a similar job elsewhere.

Chad Rueth sued the school district after he wasn't hired in 2012 for the athletic director vacancy at Hammond's Bishop Noll Institute, his high school alma mater.

According to court records, Rueth claimed that individuals connected to Gavit indirectly communicated with the BNI hiring committee in a way that suggested Rueth was "a bad athletic director."

Specifically, Gavit's principal was planning to make Rueth reapply as athletic director, and compete against other applicants for the post, once his one-year contract expired on June 15, 2012.

In a 3-0 decision, the appeals court found any such communication did not meet the legal burden necessary to prove defamation, as the information was not officially disclosed by the school district, was true and also shared with the hiring committee by Rueth himself.

Posted by Marcia Oddi on Tuesday, February 21, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Does vote on mega farms stink?"

Kaitlin L Lange reports in today's Indianapolis Star:

When it came time last week to potentially make it easier for existing Indiana mega farms to expand, Rep. Sue Errington decided not to vote on the issue to avoid a potential conflict of interest.

The Muncie Democrat and her family are partners with Creighton Brothers, a large chicken farm in Warsaw. She said she recused herself from voting because she financially benefits from the farming business, also known as a confined animal feeding operation.

But a colleague with similar interests in a large hog farm in White County had no qualms about voting for the legislation.

Rep. Don Lehe, R-Brookston, said he didn’t see it as a conflict even though he owns Lehe Farms, which has a confined feeding operation permitted for up to 1,000 nursery pigs and 1,890 finishing pigs. He said House ethics rules allow him to vote on the legislation because it doesn't uniquely benefit him.

A government watchdog said the varied approaches to ethical issues at the Statehouse show the shortcomings of allowing lawmakers to police themselves.

"There's way too much self-enforcement when it comes to these conflict of interest laws for these legislators," said Julia Vaughn , policy director for Common Cause Indiana. "There's often this very wide degree of variation in how people interpret their own conflicts."

She said it seems obvious that legislation that likely loosens requirements for animal farms should be considered a conflict for any lawmaker who owns such a farm. * * *

House Speaker Brian Bosma, R-Indianapolis, said he doesn’t think it was necessary for either Lehe or Errington to excuse themselves from voting.

"With a citizens legislature, (there are) veterans who have to deal with veterans matters, we have real estate agents that are dealing with real estate matters,” Bosma said, “and as long as there is not a unique positive impact on that individual, our rules are very clear that it’s not a conflict, and they’re actually required to vote."

The House Ethics Committee, composed of lawmakers, exists to resolve ethics concerns among colleagues and offers advisory or formal opinions on ethical issues.

But Lehe said he did not consult the panel for guidance on House Bill 1494, which could make it easier for existing confined feeding operations to expand — and limits the number of people involved in such farms that would be required to disclose any past environmental violations.

Lehe’s vote came Wednesday during a meeting of the House Agriculture Committee, which endorsed the measure on a 7-3 vote. The legislation is now eligible for consideration by the full House. * * *

House Bill 1494 would seem to provide an occasion for lawmakers who own mega farms to take stock, Vaughn said.

The measure would allow owners to expand their feeding operations by using a permit amendment, instead of applying for a whole new permit. Usually when people apply for a confined feeding permit, they have to inform those living less than a half mile away. * * *

Under the measure, environmental reporting requirements also would be eased. CFO operators would only have to disclose environmental violations in the last five years of the owner and those directly in charge of the environmental aspect of the operation. Other senior management and board members no longer would have to disclose any of their environmental violations.

Vaughn said the legislation — and lawmakers' opposing views on who should be allowed to vote on it — show that current ethics laws are unclear and too open to interpretation.

Posted by Marcia Oddi on Tuesday, February 21, 2017
Posted to Indiana Government

Monday, February 20, 2017

Ind. Decisions - Supreme Court issues judicial disciplinary action

In In the Matter of the Honorable T. Edward Page, Senior Judge, a 2-page, 5-0, per curiam ruling, the Court writes:

Respondent was arrested and subsequently charged in Porter Superior Court with Class A misdemeanor Operating a Vehicle While Intoxicated Endangering a Person, Class C misdemeanor Operating a Vehicle While Intoxicated, and Class A misdemeanor Operating a Vehicle with an Alcohol Concentration Equivalent to .15 or More. On November 15, 2016, he pleaded guilty under a plea agreement to Operating a Vehicle While Intoxicated, a Class C misdemeanor, and the State dismissed the remaining charges. The trial court entered judgment of conviction against on the Cmisdemeanor offense and sentenced Respondent to 60 days in jail, with 59 days suspended and credit for 1 day served in jail. The court also placed Respondent on unsupervised probation for 180 days, imposed an ignition interlock requirement on his driving privileges until December 7, 2016, and imposed fines and court costs of $883.50.

Respondent and the Commission agree that by being arrested and convicted for Operating a Motor Vehicle While Intoxicated, Respondent violated Code of Judicial Conduct Rule 1.1 requiring judges to comply with the law, and Rule 1.2 requiring judges to avoid impropriety and to act at all times in a manner that promotes public confidence in the integrity of the judiciary.

The parties cite no facts in aggravation. In mitigation, they agree that Respondent immediately self-reported his misconduct and voluntarily contacted the Judges and Lawyers Assistance Program (JLAP); that he is compliant with all JLAP requests; that he has been fully cooperative with the Commission throughout its investigation; and that he is remorseful for his conduct. They also agree that under the circumstances, the appropriate sanction is a public reprimand. The Court agrees with the parties.

Accordingly, T. Edward Page, Senior Judge, is hereby reprimanded. This discipline terminates the disciplinary proceedings relating to the circumstances giving rise to this cause. The costs of this proceeding are assessed against Respondent.

See earlier ILB post here, from Jan. 4, 2017.

Posted by Marcia Oddi on Monday, February 20, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Justice Roger O. De Bruler, 82, died Feb. 13th

From the Indianapolis Star obituary:

The Honorable Roger O. De Bruler, 82, Indianapolis, Indiana died on February 13, 2017, with his family at his side. He was born in Evansville on August 5, 1934 to Owen and Mary Lucille De Bruler. Justice De Bruler proudly served his country in the United States Army Intelligence Corp during the Cold War. Roger was a dedicated public servant for the State of Indiana for 33 years. He was appointed Steuben County Circuit Court Judge by late Governor Roger Branigin, and later served as the esteemed Chief Justice of the Indiana Supreme Court for some of his 27 years on that court. He was a graduate of Bosse High School in Evansville, Indiana University, and Indiana University School of Law in Bloomington. He was a member of Christ Church Cathedral on Monument Circle in Indianapolis.

While seated on the Supreme Court in 1971, Roger and his wife Karen decided that the area surrounding the James Whitcomb Riley Home was where they wanted to build a new home and raise their family of four children. Neighbors in what is now known as Lockerbie Square agree that their bold move as the first new construction in the area launched a turn-around in the direction of development of that neighborhood and served as a beacon for further development of downtown living. * * *

Services will be held at Christ Church Cathedral at 125 Monument Circle, Indianapolis on Tuesday, February 21st at 11:00 a.m. Interment will be at the De Bruler family plot at Oak Hill Cemetery, Evansville, Indiana.

A related story appeared in the Indianapolis Star on Feb. 3rd - "Historic Lockerbie cottage for sale." The home was owned until last summer by:
Angela Stroud, who had lived there for nearly 35 years with her late husband, lawyer Ken Stroud. Ken had bought the house in 1972 with his first wife, Diana Stroud, who died six years later. Ken died in August 2015. * * *

When Ken and Diana Stroud moved in, Lockerbie Square was at the beginning of its rebirth as a historic urban neighborhood. Ken helped write the bylaws of the newly formed Indianapolis Historic Preservation Commission, along with his neighbor and colleague, Indiana Supreme Court Justice Roger DeBruler.

Professor Stroud, who earlier clerked for Justice DeBruler, died in August of 2015. Here is the ILB post linking to the relevant stories.

Posted by Marcia Oddi on Monday, February 20, 2017
Posted to Indiana Courts

Ind. Gov't. - "Should you have to pay $20 an hour for a public records search?"

This May 10, 2015 ILB post began:

On Friday Governor Pence vetoed SEA 369, the bill which, inter alia, "would allow government agencies to charge a searching fee for record requests that take over two hours." This April 29th ILB post discussed the provision, which was slipped into the bill via a conference committee report.

The language had originally been buried within SB 500, a bill on education deregulation, until it was deleted during the course of the session.

As one can see from reading the digest of the CCR on SB 369, the addition of the search fee language ultimately became a poison pill to what was otherwise a bill with many good new transparency provisions that have now died with it. Here is the final, enrolled printing of SEA 369, as it was presented to the governor.

The language allowing agencies to charge a fee for any time in excess of two hours was supported by the Hoosier State Press Association both this year and last year, apparently as a trade-off for other new, useful language that would have provided that:

... a public agency shall provide a public record in electronic form or in paper form, at the option of the person making the request for a public record.
It is unclear why such a trade-off, or bargain, was necessary ...

Regardless, another noteworthy item about the veto of SEA 369 by Governor Pence was the manner of its veto announcement...

It was by Twitter.

This weekend, Tony Cook of the Indianapolis Star reported:
The cost to access public records could rise sharply under a bill the Indiana House approved Thursday. House Bill 1523 would allow state and local governments to charge up to $20 an hour for public record searches. Those fees would apply when government officials spend more than two hours searching for a record requested by journalists or members of the public.

The House voted 62-25 in favor of the measure. It now goes to the Senate. * * *

Rep. Karen Engleman, said that as a former Harrison County auditor, record requests could consume a lot of staff time.

“Some people come in and ask for hours and hours of research to be done,” Engleman said. “We don’t get paid anything for doing that.”

Opponents argued that citizens shouldn’t be required to pay for records created and maintained with their own tax money. They also fear the measure could allow government agencies to charge large fees for information they want to hide.

“I just think as a matter of principle these records belong to the taxpayers. Government records are the people’s records. The employees in whatever level of government are paid for by the taxpayers. They are our employees. They work for us,” said Rep. Matt Pierce, D-Bloomington. “To have to come in and pay to get access to your records I just think is not a good principle, not a good policy.”

He cited a case in Florida where a county sheriff’s office charged a newspaper $339,000 for a request seeking emails containing gay slurs. Other counties quoted as little as $37 for the same request.

“I think you’re going to open it up to where people come in that are looking for stuff the government doesn’t want them to see, they’re going to get a really high fee,” Pierce said.

State law currently allows local governments and most state agencies to charge a fee for actual copying costs, but not for the time employees spend gathering records.

ILB Comments: The fiscal impact note for this bill says:
The amount of fees that may be collected under the bill is indeterminable. The impact will depend upon whether agencies assess these fees, and the extent to which employees are engaging in public records searches that qualify for the assessment of fees.
In short, there is no evidence, other than anecdotal, that a bill like this is needed to prevent perceived abuses by the public of their right to access governmental records.

Perhaps there should be some sort of research done before a law like this is enacted, such as requiring governmental officials to track the time it takes them now to fill public records requests. This might reveal where governmental processes currently are operating inefficiently, bottlenecks, duplication, etc.

Alternatively, the proposal should include a way for the public to challenge the amount assessed for a public records request. Under this bill there is no requirement, or indeed, any encouragement for a public official to fill a records request in the most efficient way possible.

Posted by Marcia Oddi on Monday, February 20, 2017
Posted to Indiana Government

Ind. Courts - "Child custody cases straining court resources"

That is the heading to a South Bend Tribune story this weekend by Virginia Black. The subhead: "An ongoing conflict more damaging to kids than the divorce itself." Some quotes:

Lingering custody disputes in divorce and paternity cases not only consume already-strained court resources, judges say, but they also take a toll on the children caught in the middle.

Mediation and parenting programs that encourage parents to agree on shared custody have made great improvements in recent years, St. Joseph Chief Judge David Chapleau says.

Still, Indiana statistics show the average divorce case without children takes 39 minutes of a judge's time in hearings, case review and writing orders, he says.

By contrast, a typical paternity case will consume 146 minutes, and a divorce with children, 259 minutes.

In January, new Indiana Supreme Court rules went into effect, establishing new case designations for local courts to better track the differences in divorces that involve children and those that do not.

"Mediation's made a big difference," Chapleau says of such disputes.

Still, contentious cases abound. And parents at war with each other can make it difficult to determine what's best for the children.

"It can be poisonous," Judge Chapleau says. "It can be difficult to hear all the dirty laundry aired."

In Indiana, as in many other states, judges have the right to determine what's best for children when custody is an issue. But awarding sole physical custody to one parent — usually the mother — while offering the other parent limited parenting time is the default position.

Since 2015, a growing number of states have been considering legislation that would encourage children's time to be split between both parents as equally as possible, according to Pew Charitable Trusts reports.

Indiana Sen. Jon Ford, a Republican in Vigo County, introduced Senate Bill 36 in this year's General Assembly, which would establish "a rebuttable presumption that joint physical custody is in the interests of the child." The bill suggests an every-other-week arrangement for children to live with each parent.

Ford did not respond to several requests for information. His bill was assigned to the Senate Committee on Civil Law but has not been heard.

There is much more in the story.

Posted by Marcia Oddi on Monday, February 20, 2017
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 1 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (1):

Termination: CB v. Indiana Department of Child Services, et al. (mem. dec.)

NFP juvenile and criminal decisions today (0):

Posted by Marcia Oddi on Monday, February 20, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending Feb. 17, 2017

Here is the Clerk's transfer list for the week ending Friday, April 15, 2017. It is two pages (and 24 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, February 20, 2017
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 2/20/17):

Thursday, February 23

Next week's oral arguments before the Supreme Court (week of 2/27/17):

Thursday, March 2

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 2/20/17):

Friday, February 24

Next week's oral arguments before the Court of Appeals (week of 2/27/17):

Thursday, March 2

Friday, March 3 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, February 20, 2017
Posted to Upcoming Oral Arguments

Saturday, February 18, 2017

Ind. Decisions - 7th Circuit decided one Indiana case yesterday

In Indianapolis Airport Authority v. Travelers Property Casualty Co (SD Ind., Magnus-Stinson), a 29-page opinion, Judge Hamilton writes:

In this diversity-jurisdiction case, the Indianapolis Airport Authority sued Travelers Property Casualty Company of America over Travelers’ partial denial of a claim for coverage arising from an airport construction accident that occurred in 2007. On motions for summary judgment, the district court interpreted the insurance contract in favor of Travelers on several issues. Following summary judgment, the Airport Authority’s case was narrowed to a claim for unreimbursed inspection costs associated with the incident. Then, two weeks before trial was set to begin on that claim, the district court entered an evidentiary order that effectively precluded the Airport Authority from proving that sole remaining claim. The Airport Authority sought entry of final judgment so that it could appeal, and the district court entered judgment in Travelers’ favor. On the Airport Authority’s appeal, we affirm in part and reverse in part the district court’s summary judgment order, and we vacate the evidentiary order for further consideration in light of this opinion.

Posted by Marcia Oddi on Saturday, February 18, 2017
Posted to Ind. (7th Cir.) Decisions

Friday, February 17, 2017

Courts - More on: "Louisville panhandling law struck down"

Updating this ILB post from Oct. 14, 2016, about the action of a Jefferson District Court judge, Jason Riley reports today in a WDRB Louisville story headed "Kentucky Supreme Court strikes down Lexington panhandling law as unconstitutional." From the start of the story:

LOUISVILLE, Ky. (WDRB) – The Kentucky Supreme Court has ruled that a Lexington law against panhandling is an unconstitutional violation of free speech.

The landmark ruling - which could affect similar laws across the state - stems from the case of Dennis Champion, who was jailed in 2015 for violating a Fayette County ordinance prohibiting “begging and soliciting upon public streets.”

Champion, according to court documents, was caught standing at an intersection holding a sign that read “begging for alms” in December 2014.

On Thursday, the high court ordered the case be dismissed because the law “unconstitutionally abridges freedom of speech under the First Amendment.”

“Despite the societal stigma associated with panhandling, this form of expression is widely considered to be constitutionally protected speech,” the high court ruled in a unanimous decision. “… Freedom of speech does not exist for us to talk about the weather; to accept this liberty is to welcome controversy and to embrace discomfort.” * * *

A Jefferson District Court judge last year ruled Louisville's panhandling law unconstitutional, but the order is only for his court.

Here, via WDRB, is the 14-page, Feb. 16, 2017 Supreme Court of Kentucky opinion in Champion v. Kentucky.

Posted by Marcia Oddi on Friday, February 17, 2017
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 11 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (6):

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

In the Matter of: L.G. (Minor Child), Child in Need of Services, and M.S. (Mother) & C.G. (Father) v. The Indiana Department of Child Services (mem. dec.)

Krysten A. Overly v. Mark E. Overly (mem. dec.)

James Showalter v. Tanya Ray (mem. dec.)

Steak `N Shake No. 315 v. Ronald E. Smith (mem. dec.)

Christen Hartsock v. Donald Fulkerson (mem. dec.)

NFP juvenile and criminal decisions today (5):

Victor Gersdorff v. State of Indiana (mem. dec.)

Danny L. Hersley, Jr. v. State of Indiana (mem. dec.)

Nicholas Edward Daugherty v. State of Indiana (mem. dec.)

Corey L. Spurlock v. State of Indiana (mem. dec.)

Clinton Bryan Davis v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, February 17, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues 1 today

In Termination: VG, et al. v. Indiana Department of Child Services, an 8-page, 5-0 opinion, Chief Justice Rush writes:

Few liberties are as central to our society as the right of parents to raise their children. Our General Assembly has thus set a high bar for terminating parental rights—requiring a termination petition to allege four defined elements and commanding dismissal when DCS fails to prove each element by clear and convincing evidence.

The first required element establishes three waiting periods to give parents time to reunify with their children, and bars DCS from seeking termination until one of those three periods has passed. Here, DCS failed to allege the only one of those waiting periods that had in fact passed— that Father’s daughters had been removed from him for at least six months under a dispositional decree. Finding this missing element fatal to DCS’s petitions to terminate Father’s parental rights, we reverse and remand. * * *

We realize that DCS’s failure to allege the six-month waiting period was likely a mere drafting error. But a statutory requirement—even one that seems minor or technical—is still a requirement. And here, where that requirement protects the fundamental rights of parents, it takes on particular importance. Terminating Father’s parental rights in spite of this pleading defect therefore requires reversal.

Conclusion. DCS failed to prove the waiting periods it alleged and failed to allege the waiting period it could have proved. We thus reverse the termination of Father’s parental rights regarding his daughters, Bi.B. and Br.B., and remand for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Friday, February 17, 2017
Posted to Ind. Sup.Ct. Decisions

Law - President Trump's executive orders and memoranda

Gregory Korte of USA Today has had several valuable stories recently on President Trump's executive orders.

This story, from Feb. 14th, "White House posts wrong versions of Trump's orders on its website," is eye-catching in itself, but also links to the text of Trump's recent orders. From the story:

By law, the Federal Register version is the legally controlling language. But it can often take several days for the order to be published, meaning that the public must often rely on what the White House puts out — and that's sometimes inaccurate.
Reading some of the executive orders reminds the ILB of the famous Truman quote about President Eisenhower, as set out in this prescient, June 3rd, 2016 (worth-reading in full) NYT opinion piece by Eric Posner ("And if Elected: What President Trump Could or Couldn’t Do"):
Mr. Trump’s biggest obstacle to vast power is not the separation of powers but the millions of federal employees who are supposed to work for him. Most of these employees have a strong sense of professionalism and are dedicated to the mission of their agency. They don’t take kindly to arbitrary orders from above. As President Harry Truman said ahead of Dwight D. Eisenhower’s presidency: “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen.”
With that in mind, look at the text of this "presidential memorandum on a plan to defeat the Islamic State," directing the Secretary of Defense to "develop the Plan."

See also: On Jan. 24th, reporter Korte published this story, headed "Presidential memoranda vs. executive orders. What's the difference?"

Posted by Marcia Oddi on Friday, February 17, 2017
Posted to General Law Related

Law - Repealing federal regulations generally difficult

It is not easy to repeal a federal regulation, as Howard Shelanski, who was administrator of the federal Office of Information and Regulatory Affairs from 2013 to 2017, explains in this Washington Post opinion piece. It begins:

Since taking office, President Trump has signed executive orders instructing officials to reconsider regulation of the financial sector and requiring executive departments and agencies to find two rules to repeal for every new one they issue. But translating those promises into action is going to be a lot harder than the president thinks.

Here’s the rub: It generally takes a new rule to change or remove a regulation that is already on the books. Under long-standing Supreme Court precedent and a law known as the Administrative Procedure Act, agencies must provide a reasoned explanation when they want to change established policy.

Put another way, if an agency wants to abandon a rule it already has in place, it must justify that decision by going through the painstaking process of providing an opportunity for public comment and building a factual record subject to review by the courts. Agencies then have to show that their original decisions were either wrong or have been superseded by events. The law thus requires agencies to be both transparent and accountable, not just in issuing new rules but also in repealing existing rules. The more recent the regulation suggested for repeal, the harder that task tends to be.

See also this Jan 27th ILB post: "Trump's regulation freeze makes losers out of some U.S. businesses."

Posted by Marcia Oddi on Friday, February 17, 2017
Posted to General Law Related

Courts - "On eve of confirmation vote, judge orders EPA nominee to release thousands of emails"

The Washington Post is reporting today, in a story by Brady Davis:

An Oklahoma judge on Thursday ordered Scott Pruitt, the state’s attorney general and President Trump’s nominee to lead the Environmental Protection Agency, to turn over thousands of emails related to his communication with the oil, gas and coal industry.

The Center for Media and Democracy has been seeking the release of Pruitt’s correspondence with fossil-fuel representatives under public records laws for more than two years. The group filed suit over Pruitt’s refusal to turn over the documents and requested the expedited hearing that led to the judge’s decision, which was first reported by E&E News.

The ruling by District Court Judge Aletia Timmons, who said there had been “an abject failure to provide prompt and reasonable access to documents requested,” came a day before the Senate is expected to vote on confirming Pruitt to head the EPA, an agency that he has sued repeatedly during the Obama years.

Timmons gave the attorney general’s office until Tuesday to release the records, meaning they likely won’t come to light until after he is sworn in to his new position.

From the Huffington Post:
Judge Aletia Haynes Timmons of the District Court of Oklahoma County ruled that the attorney general’s office will have until Tuesday to turn over more than 2,500 emails and other documents. The watchdog group Center for Media and Democracy, with legal representation from the American Civil Liberties Union, had filed a lawsuit against Pruitt earlier this month, alleging that his office had violated Oklahoma’s open records law.
From E&E News:
The Center for Media and Democracy sued for his emails. The attorney general's office will have to either turn them over to the group or provide them to the court for inspection, Judge Aletia Haynes Timmons [a state district court judge] said after a 25-minute hearing.

Posted by Marcia Oddi on Friday, February 17, 2017
Posted to Courts in general | Environment

Law - The end of public records, and maybe the end of history?

Adding to these recent stories quoted in a Feb. 2nd ILB post:

here are two more:And from Lifehacker, Thorin Klosowski provides "The Privacy Enthusiast's Guide to Using an iPhone."

Posted by Marcia Oddi on Friday, February 17, 2017
Posted to General Law Related

Thursday, February 16, 2017

Ind. Decisions - Tax Court decides one today

In The University of Phoenix, Inc. v. Indiana Department of State Revenue, a 9-page order, Judge Wentworth writes:

After having successfully defended against and prosecuted discovery enforcement motions either in whole or in part, both the University of Phoenix, Inc. and the Indiana Department of State Revenue claim that an award of expenses pursuant to Indiana Trial Rule 37(A)(4) is warranted. The Court agrees. * * *

The Court, having considered the requirements of Trial Rule 37(A)(4) and the parties’ evidence, arguments, and levels of non-cooperation, awards the University a reimbursement for its expenses in the amount of $9,850.50 for successfully resisting the Department’s second motion for protective order. See Shelby’s Landing-II, Inc. v. PNC Multifamily Capital Institutional Fund XXVI Ltd. P’ship, 65 N.E.3d 1103, 1112 (Ind. Ct. App. 2016) (indicating that the Court may consider several factors in assessing a reasonable fee, including the judge’s own personal expertise, the responsibility of the parties in incurring the fees, and the hours worked or rates charged). In addition, the Court awards the Department $12,900.00 to reimburse its expenses for successfully resisting the University’s motion to compel.

Posted by Marcia Oddi on Thursday, February 16, 2017
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today, re threats on Facebook wall - Posner

In USA v. Samuel Bradbury (ND Ind., Simon), a 7-page opinion, Judge Posner writes:

On June 8, 2014, Jerad and Amanda Miller, originally of Lafayette, Indiana, shot and killed two police officers and one civilian in Las Vegas. The couple died in an ensuing shootout with police, Amanda committing suicide after Jerad was shot. At approximately 11:15 p.m. on June 19, 2014, Samuel L. Bradbury, a Lafayette resident, placed the following message on his Facebook “wall,” where it was readable by his Facebook “friends,” who could moreover take screenshots of the message to convey to others: * * *

On the basis of these discoveries, and the threats in the Facebook post, Bradbury was indicted on federal charges of threatening to use explosive materials to kill law enforcement officers and state court judges and destroy a courthouse and police vehicles, all by means of the thermite found in his bedroom—thermite ignitable by the magnesium also found there. But a superseding indictment changed the charges to “willfully mak[ing] any threat” and “maliciously convey[ing] false information.” The jury trial that ensued resulted in Bradbury’s acquittal of the first charge and conviction of the second. The judge sentenced him to 41 months of imprisonment to be followed by two years of supervised release.

The count of which he was convicted was based on 18 U.S.C. § 844(e), which provides, so far as relates to this case, that “whoever, through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce, or in or affecting interstate or foreign commerce, … maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made or to be made to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property, by means of fire or an explosive, shall be imprisoned for not more than 10 years or fined under this title, or both.” The judge instructed the jury that to act “maliciously” means “to act intentionally or with deliberate disregard of the likelihood that damage or injury will result.” He added that the jury should find the defendant guilty if it concluded that he’d intentionally “conveyed false information, knowing the same to be false,” that “the false information was conveyed maliciously and via an instrument of interstate commerce,” and that it “concerned an alleged attempt to kill or injure law enforcement officers or to damage or destroy the Tippecanoe County Courthouse or other public property by use of fire or explosives.” And so the jury found.

Bradbury argues that the judge’s definition of “maliciously” allowed the jury to convict him merely for posting the message (an intentional act) even if he didn’t intend the post to cause harm—in other words if his Facebook post was a joke and so there was nothing malicious about it, just as in United States v. Hassouneh, 199 F.3d 175, 182 (4th Cir. 2000), which vacated a conviction under the Bomb Hoax Act, 18 U.S.C. § 35(b), in which a similar instruction had been given to the jury and the defendant had argued that the false statements about a bomb in his airline luggage were jokes. * * *

It’s true that the word “maliciously” is not precise; if you google “maliciously synonyms,” Thesaurus.com gives you 16 words, ranging in gravity from “crookedly” to “roguishly.” See www.thesaurus.com/browse/maliciously (visited Feb. 16, 2017). But at least “malice” and “malicious” are reasonably clear and they in turn guide interpretation of “maliciously.” “Malice” is the noun, “malicious” the adjective, and “maliciously” the adverb—and so to act maliciously is to act with malice, or equivalently to be malicious. All three cognates well describe Bradbury’s post, which he knew might be read by people not all of them his pals and communicated by them to the police and to the persons named in the post as intended victims of him and his cronies. Most hoaxes are harmless, but a hoax based on a threat of harm is criminalized by 18 U.S.C. § 844(e), as explained by the district judge, even if the harm that ensues is fright rather than physical injury. AFFIRMED

Posted by Marcia Oddi on Thursday, February 16, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 10 NFP memorandum decision(s))

For publication opinions today (2):

In Town of Knightstown v. Dudley Wainscott , an 18-page opinion, Judge Barnes writes:

In this interlocutory appeal, the Town of Knightstown (“Town”) appeals the trial court’s partial denial of its motion for summary judgment regarding a claim by Dudley Wainscott (“Wainscott”). On cross-appeal, Wainscott appeals the trial court’s partial grant of the Town’s motion for summary judgment. We affirm in part, reverse in part, and remand. * * *

Wainscott substantially complied with the ITCA notice requirements, and the trial court erred when it granted the Town’s motion for summary judgment on his negligence and equity claims. The trial court properly denied summary judgment on Wainscott’s nuisance claim, but it erred when it denied summary judgment on Wainscott’s breach of contract claim. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

In Christopher A. Neeley v. State of Indiana, a 16-page opinion, Judge Brown writes:
Christopher A. Neeley appeals his convictions for intimidation as a level 6 felony and resisting law enforcement as a class A misdemeanor. Neeley raises two issues, one of which we find dispositive and revise and restate as whether the trial court abused its discretion in admitting officer testimony. We reverse. * * *

Ind. Code § 34-28-5-3 gives an officer the authority to detain a person who the officer believes in good faith has committed an infraction for “a time sufficient” to inform the person of the allegation, obtain the person’s identification, and allow the person to execute a notice to appear. A stop predicated on a traffic violation becomes an unlawful and unreasonable seizure if it is “prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.” Rodriguez, 135 S. Ct. at 1612 (internal quotations and brackets omitted). We find that, in each instance of charged criminal conduct, such conduct occurred well after the stop had progressed from what would be a lawful traffic detention to an unlawful seizure under the Fourth Amendment. Thus, even if the stop constituted a lawful traffic detention, our conclusion would be the same, that the court abused its discretion in admitting into evidence the relevant officer testimony.

NFP civil decisions today (3):

Ashley Brown v. Indiana Family and Social Services Administration (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of A.E.S.H., P.M.H. & J.G.A.H., Minor Children, K.M.H., Mother v. The Indiana Department of Child Services (mem. dec .)

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

NFP juvenile and criminal decisions today (7):

Matter of J.S., a Child Alleged to be Delinquent v. State of Indiana (mem. dec.)

T.C. v. State of Indiana (mem. dec.)

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

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

Diego Armando Pacheco Manzo v. State of Indiana (mem. dec.)

Theron Hunter v. State of Indiana (mem. dec.)

Dennis Price v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, February 16, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Indiana AG says ruling on same-sex parent birth certificate issue creates confusion"

WISHTV 8 reports in a story that begins:

Newly-elected Indiana Attorney General Curtis Hill is making headlines after appealing a federal judge’s ruling that would allow female same-sex spouses to be listed on a child’s birth certificate.

Judge Tanya Walton Pratt ruled that requiring a same-sex spouse to adopt a child in order to gain parental rights is unconstitutional. The state currently recognizes the birth mother, but not a same-sex spouse on the birth certificate. That spouse would have to go through the often expensive adoption process to be included on the certificate. Parenting rights make it easier to enroll kids in school and even add them to insurance.

Hill says he’s appealing this decision because Pratt’s ruling creates law that doesn’t exist.

The WISHTV story follows on the Feb. 1st Indianapolis Star story, quoted here in the ILB, that the State is appealing to the 7th Circuit the decision by U.S. District Court Judge Tanya Walton Pratt in Henderson v. Adams.

Posted by Marcia Oddi on Thursday, February 16, 2017
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court issues 1 today, re sports injuries

In Tresa Megenity v. David Dunn, an 8-page, 5-0 opinion, Chief Justice Rush writes:

Our decision in Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011), established a limited new rule: Indiana courts do not referee disputes arising from ordinary sports activity. Instead, as a matter of law, when a sports participant injures someone while engaging in conduct ordinary in the sport—and without intent or recklessness—the participant does not breach a duty. Id. at 404. Today we clarify that under Pfenning ordinary conduct in the sport turns on the sport generally—not the specific activity.

Here, during a karate class drill, David Dunn jump-kicked a bag, injuring Tresa Megenity, who was holding the bag. Since jump kicks are ordinary in the sport of karate generally, and no evidence supports intent or recklessness, Megenity cannot show breach as a matter of law. We thus affirm summary judgment for Dunn. * * *

The trial court granted summary judgment for Dunn, noting that the jump kick was “ordinary behavior of participants in karate within the context of a ‘kicking the bag’ drill.”

Megenity appealed, and a divided panel of the Court of Appeals reversed summary judgment because (1) the “‘general nature of the conduct reasonable and appropriate for a participant’ in a karate practice drill is not ‘commonly understood and subject to ascertainment as a matter of law’” and (2) questions of fact remained as to whether Dunn’s jump kick breached a duty. Megenity v. Dunn, 55 N.E.3d 367, 373 (Ind. Ct. App. 2016) (emphasis added) (quoting Pfenning, 947 N.E.2d at 403–04). Judge Riley dissented, believing that jump kicks are ordinary behavior within karate as a whole. Id. at 374 (Riley, J., dissenting).

We granted Dunn’s petition to transfer, thereby vacating the Court of Appeals decision. Ind. Appellate Rule 58(A). * * *

Like the wayward drive in Pfenning, Dunn’s jump kick may reflect poor technique or faulty execution. But it was ordinary conduct in the sport of karate generally, and no evidence shows intent or recklessness. We therefore find no breach as a matter of law and affirm summary judgment.

Posted by Marcia Oddi on Thursday, February 16, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Cts. - "Marion Co. Traffic Court bailiffs accused of forging documents to get tickets dismissed" [Updated]

Posted this morning by Fox 59, a story that begins:

Two former Marion County Traffic Court bailiffs are accused of forging judges’ signatures in order to get traffic tickets and violations dismissed. One of them accepted bribes, prosecutors say.

Evelyn Hughes is charged with 49 counts including bribery, forgery and official misconduct. Carnetta Arthur faces 14 counts, including forgery and official misconduct.

The charges against the former bailiffs are the result of a report from the Marion County Superior Courts to the Marion County Prosecutor’s Grand Jury Division.

According to the probable cause affidavit, the bailiffs forged judges’ signatures on documents to dismiss infraction charges in court. They forwarded those documents to the Bureau of Motor Vehicles to clear suspensions and reinstatement fees. Prosecutors said Hughes accepted money from people so that their cases would be dismissed.

[Updated at 12:00 PM] Here is a story from the Indianapolis Star.

Posted by Marcia Oddi on Thursday, February 16, 2017
Posted to Indiana Courts

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

Tuesday, February 14, 2017

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 11 NFP memorandum decision(s))

For publication opinions today (4):

In Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals, et al. , a 26-page opinion, Judge Riley writes:

Appellant-Petitioner, Flat Rock Wind, LLC (Flat Rock), appeals the trial court’s decision, affirming Appellee-Respondent’s, Rush County Area Board of Zoning Appeals (BZA), grant of Flat Rock’s amended application to construct a commercial Wind Energy Conversion System, subject to the requirement to locate each industrial wind turbine at least 2,300 feet from a non-participating owner’s property line. We affirm.

Appellant raises two issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion in permitting a group of landowners to intervene in these judicial review proceedings pursuant to Indiana Trial Rule 24(A)(2); and

(2) Whether the trial court erred in affirming the BZA’s zoning decision approving Flat Rock’s amended application for a special exception to construct a commercial Wind Energy Conversion System, subject to a setback requirement that was both greater and measured differently than the zoning ordinance’s minimum setback requirement. * * *

Based on the explicit language of the Zoning Ordinance, we conclude that the BZA did not exceed its authority by creating the Setback Condition, as well as a new method for measuring this Setback. In interpreting the Zoning Ordinance, the BZA viewed the siting setback as a “minimum” guideline, which was subject to “reasonable restrictions” to preserve the health and safety of the public. (Zoning Ordinance, Sec. 6.4.2; see also Zoning Ordinance 10.2). By evaluating Flat Rock’s proposed commercial WECS project as planned and the evidence and testimony received during the hearings, the BZA imposed the Setback Condition to promote the Zoning Ordinance’s and the WECS’ special exception’s stated purpose to promote the public interest. Because we find the BZA’s interpretation reasonable and consistent with the Zoning Ordinance itself, we must defer to the agency’s decision. See Hoosier Outdoor Advertising Corp., 844 N.E.2d at 163. Accordingly, as the BZA did not exceed its powers, we affirm the trial court’s decision.

CONCLUSION. Based on the foregoing, we hold that the trial court properly permitted Remonstrators to intervene pursuant to T.R. 24(A)(2); and the BZA did not exceed its power by interpreting the WECS special exception in the Zoning Ordinance.

In Citizens Action Coalition of Indiana, Inc., et al. v. Southern Indiana Gas and Electricity Company, et al., a 22-page opinion, Judge Altice writes:
Over three years ago, Southern Indiana Gas and Electric Company d/b/a Vectren Energy Delivery of Indiana, Inc. (Vectren) petitioned the Indiana Utility Regulatory Commission (IURC) for approval of projects to modify four of Vectren’s coal-powered generating stations to bring them into compliance with EPA emissions standards. Citizens Action Coalition of Indiana, Inc., Sierra Club, Inc., and Valley Watch, Inc. (collectively, Intervenors) intervened in the action and opposed the petition.

The IURC ultimately approved the petition, determining that Vectren’s proposed projects were reasonable and necessary under Ind. Code § 8-1-8.8-11. Upon Intervenors’ appeal in Citizens Action Coal. of Ind., Inc. v. S. Ind. Gas & Elec. Co. (Vectren I), 45 N.E.3d 483 (Ind. Ct. App. 2015), another panel of this court remanded with respect to two of the proposed projects, finding that I.C. § 8-1- 8.7-3 rather than I.C. § 8-1-8.8-11 applied. This court instructed the IURC to make findings regarding the statutory factors listed in I.C. § 8-1-8.7-3 and then issue or deny a certificate of public convenience and necessity (CPCN) for the two projects.

On remand, the IURC refused a request by Intervenors to reopen the record to consider new evidence. It also issued an order analyzing the nine statutory factors, concluding that public convenience and necessity will be served by the proposed clean coal technology projects, and issuing a CPCN to Vectren for the remaining projects. Intervenors appeal once again. They argue that the IURC’s findings are not adequately explained, are arbitrary and capricious, and are not supported by substantial evidence. Additionally, Intervenors argue that the IURC unlawfully denied the petition to reopen the record. We affirm.

In School City of Hammond District v. Chad Rueth, a 24-page opinion, Judge Riley writes:
Appellant-Defendant, School City of Hammond District (the District), appeals the trial court’s entry of judgment pursuant to a jury verdict in favor of Appellee-Plaintiff, Chad M. Rueth (Rueth), on his claims of defamation and blacklisting. We reverse. * * *

Based on the foregoing, we conclude that there is insufficient evidence to support a verdict for defamation or blacklisting, and, as such, the trial court abused its discretion by denying the District’s Motion to Correct Error.

In Termination: TF v. Indiana Department of Child Services, et al. , a 33-page opinion, Judge Brown writes:
T.F. (“Father”) appeals the involuntary termination of his parental rights with respect to his daughters A.F., D.F., and M.F. Father raises one issue which we revise and restate as whether the trial court abused its discretion in admitting evidence. We affirm.
In State of Indiana v. Sameer Girish Thakar, a 12-page opinion, Judge Barnes writes:
The State appeals the trial court’s dismissal of its charging information against Sameer Girish Thakar for one count of Class D felony dissemination of matter harmful to minors. We affirm.

The sole issue is whether the statutes criminalizing and defining dissemination of matter harmful to minors are unconstitutionally vague as applied to the alleged conduct in which Thakar engaged. * * *

In this appeal, the State makes no attempt to argue that the present case is in any way distinguishable from Salter. Rather, it urges this panel to disagree with the majority opinion in that case and to essentially adopt the dissenting position. We decline to do so and, instead, state our agreement with the Salter majority.

The State reiterates the dissent’s comment that the legislature did not intend to “authorize” or “encourage” sixteen year olds to have sex with adults by establishing sixteen as the age of consent for purposes of the criminal law. We respectfully disagree that the legislature did not “authorize” such conduct. By choosing not to subject adults to punishment for such activity, that is precisely what it has done. As for whether the legislature intended to “encourage” such conduct, it is not the government’s duty or prerogative to encourage any particular persons to have sex. We believe any conjecture on this point is not pertinent to our discussion.

The State also asserts that it is logical to distinguish between in-person sexual activity between an adult and a sixteen-year-old and the dissemination of sexual material from an adult to a sixteen year old, and to punish the second type of conduct but not the first. * * *

The State also suggests that the legislature’s failure to take any action to amend the statutes regarding dissemination of matter harmful to minors after Salter was decided somehow represents a rejection of Salter's holding. If anything, the legislature’s inaction points to the opposite. Judicial interpretation of a statute, accompanied by substantial legislative inaction for a considerable time, may be understood to signify the General Assembly’s acquiescence and agreement with the judicial interpretation. Fraley v. Minger, 829 N.E.2d 476, 492 (Ind. 2005). We need not place too much emphasis on the legislature’s inaction here, especially given that the Indiana Supreme Court has not weighed in on the issue. See id. Still, it has been almost eight years since Salter found these statutes to be unconstitutionally vague and ambiguous with respect to transmission of nude images by adults to sixteen year olds. Moreover, the majority expressly stated at the conclusion of its decision, “we realize our decision is sure to inspire opposition. But . . . our legislature has decided to protect sixteen- and seventeen-year-olds . . . in different ways than it protects other minors. Opposition to that policy choice should be voiced to the legislature, not to the courts.” Salter, 906 N.E.2d at 223. Despite these comments, no change has been made to the statutes aside from a general reclassification of the offense from a Class D to a Level 6 felony. * * *

[W]e conclude, as the majority did in Salter, that the statutes criminalizing and defining dissemination of matter harmful to a minor are unconstitutionally vague and ambiguous with respect to an adult transmitting sexual, non-obscene4 images to a sixteen- or seventeenyear-old, at least where that adult could not be prosecuted for child seduction. We construe the statutes as currently not permitting prosecution of such acts.

Conclusion. We reaffirm the majority holding in Salter. The trial court properly relied upon that holding in dismissing the charging information against Thakar. Affirmed.

NFP civil decisions today (4):

Coventry Court Townhomes v. Brittany D. Bigger (mem. dec.)

Daniel Fuquay v. Teresa Higginson, et al. (mem. dec.)

Cassie L. Carnahan v. Jason M. Carnahan (mem. dec.)

JG v. Review Board, et al. (mem. dec.)

NFP criminal decisions today (7):

AW v. State of Indiana (mem. dec.)

Keri Brewer v. State of Indiana (mem. dec.)

Tommy J. Rubalcada v. State of Indiana (mem. dec.)

Kenneth M. Jordan v. State of Indiana (mem. dec.)

Dax C. Rutherford v. State of Indiana (mem. dec.)

Billy E. Oliver v. State of Indiana (mem. dec.)

Albert Webb v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, February 14, 2017
Posted to Ind. App.Ct. Decisions

Ind. Courts - JQC advisory opinion on tweeting and microblogging in courtroom

The issues posed in Advisory Opinion #1-17:

1) Does Rule 2.17’s broadcast prohibition include activities like microblogging or ‘live tweeting’ of witness testimony?
2) Even if microblogging or tweeting is not considered broadcasting, is it ethically permissible for a judge to impose reasonable restrictions on the use of these mediums (and other electronic modes of communication) in the courtroom?
Conclusion of 4-page opinion:
Differing, but equally valid, interests exist between the public’s desire for transparency and immediate information about court proceedings and the judiciary’s obligation to maintain order and decorum in the court as well as to preserve fairness for all courtroom participants. Recognizing the challenge that new technologies bring regarding the transmission of court proceedings, the Commission believes that it is imperative that this delicate balance be preserved so that neither side’s legitimate interests are wholly disregarded.

The Commission’s view is the use of electronic means of instant communication, such as Twitter or microblogging, in the courtroom is not considered broadcasting under Rule 2.17 of the Code of Judicial Conduct, except in those limited situations when a user transmits video or audio of court proceedings or a link to videotaped court testimony. Further, it is the Commission’s view that a judge continues to act within the spirit of the Code of Judicial Conduct if he or she imposes reasonable restrictions on how and when an individual may use Twitter or other electronic communication tools during courtroom proceedings.

Posted by Marcia Oddi on Tuesday, February 14, 2017
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues rare order granting reinstatement to practice of law

As we saw in this Feb. 14, 2014 ILB post -- "How bad is 'suspension without automatic reinstatement' by the Supreme Court; can it be the kiss of death for an attorney?" -- indeed, it can be.

So this Court order dated February 10, 2017, in In the Matter of: John M. Joyce, is noteworthy. Petitioner, who was suspended "for not less than 180 days without automatic reinstatement," effective June 20, 2014, has now been reinstated to the practice of law in Indiana, effective February 10, 2017.

Posted by Marcia Oddi on Tuesday, February 14, 2017
Posted to Indiana Courts

Ind. Gov't. - "Purdue tackles cheating dilemma"

The Lafayette Journal-Courier had this interesting story this weekend, reported by Meghan Holden. A few quotes from the long story:

WEST LAFAYETTE, Ind. — During a final exam, a Purdue University student watched as a peer was caught cheating, then got away with it.

The course syllabus stated students would fail the course if they cheated, but the professor simply told the student to sit in a different seat. When the student who saw the dismissal went to the head of the department to report the situation, the student was accused of being a "snitch" and getting involved in other people's business.

"It is hard to put academic integrity in high regards when situations like this occur," the student wrote in a 2015 survey about academic integrity and dishonesty sent to Purdue students and faculty.

Several other students commented that they had witnessed professors ignore obvious cases of cheating, as well as some faculty members who said administrators fail to follow up on the cases or penalize the students when they do report them.

Ultimately, many students and faculty were left feeling disillusioned, and sometimes apathetic, with what they perceived as a culture of academic dishonesty at Purdue. One student even wrote, "Purdue does not really enforce any academic integrity policies, so why not just cheat?"

The notion that the campus community viewed cheating as commonplace was a cause for alarm among university leaders and sparked action to curb the trend. * * *

Purdue had 184 cases of academic dishonesty last semester, according to Stefancic. The number of cases was nearly double that last spring, at 335. Since fall 2014, the amount of cases each semester has averaged around 250.

The most common case of academic dishonesty is unauthorized collaboration, or when students work too closely together, he said.

About 40 percent of the 450 faculty who completed the academic integrity survey said inappropriate group collaboration occurs often or very often. These cases are more prevalent in colleges such as engineering in which group work regularly occurs as part of the curriculum, Stefancic said, and some students simply don't know when collaborating crosses the line. * * *

But one of the more complicated issues at Purdue is plagiarism. Some students just don't know what it means to plagiarize, Stefancic said, and they haven't learned how to properly cite or reference other documents.

Although it's a problem for many domestic students, he said, a portion of international students tend to have difficulties with the concept. About 35 percent of academic dishonesty cases involve international students, he said.

Yumin Gao, an engineering senior, said, "Back in China, we don’t necessarily need to cite any references."

In China, it's often acceptable to copy and paste part of someone else's work into your own paper without quoting the original author. The country's education system doesn't focus on ownership of ideas because information is viewed as belonging to the society as a whole.

Chinese students grew up in a collective culture, Gao said, so working with their classmates on assignments is also the norm.

Posted by Marcia Oddi on Tuesday, February 14, 2017
Posted to Indiana Government

Monday, February 13, 2017

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

In Willie Long v. USA (ND Ind., Miller), a 13-page opinion, Judge Kanne writes:

Willie Long pled guilty to being a felon in possession of a firearm. Thereafter, Long sought col‐ lateral relief, arguing that his trial attorney provided ineffec‐ tive assistance of counsel. Unfortunately for Long, his plea agreement contained a provision waiving his right to collat‐ erally attack his conviction and sentence. For that reason, the district court summarily denied his claim.

On appeal, Long argues that the district court erred in denying his claim without an evidentiary hearing. Long cor‐ rectly notes that we will allow a petitioner to circumvent a collateral‐attack waiver if he can prove that his counsel was ineffective in negotiating the plea agreement containing that waiver. Nevertheless, because Long has failed to allege any facts that, if proven true, would entitle him to relief, he is not entitled to an evidentiary hearing. We affirm.  

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Ind. (7th Cir.) Decisions

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

From Fatima Hussein's long, worth-reading in full report this weekend in the IndyStar/USA Today:

When the Indiana General Assembly started regulating hair-braiding salons in 1997, Nicole Barnes-Thomas lost her job, her apartment and, quickly, her life unraveled.

Once self-sufficient, she struggled to find work for about a year, then took an office job, though she says it's not what she'd prefer to do.

"It was devastating to say the least," said Barnes-Thomas, who saw Indiana's strict regulation of an African-American tradition as being culturally insensitive at the least and economically devastating at most.

But now Barnes-Thomas has a new ally, one who may seem unusual in these politically polarized times. A white conservative Republican lawmaker from Elkhart, Timothy Wesco, has taken up her cause of hair braiding, a move that is being repeated across the country.

Already, 20 states have ceased regulating the practice, and bills are pending in Missouri, New Hampshire and New Jersey.

Hair-braiding salons are just one of many businesses Republican lawmakers are hoping to deregulate, with Indiana lawmakers considering changes in the licenses of psychologists, mental health counselors and social workers. But hair braiding, which has been an African tradition for thousands of years, is an industry with a nontraditional constituency for most Republican lawmakers. * * *

"I was independent, I loved what I did, and I enjoyed putting a smile on people's faces," Barnes-Thomas said.

That all changed when House Bill 2011 passed into law in 1997, requiring hair braiders to complete cosmetology school in order to be licensed to practice under Indiana law. The change made it an infraction to braid hair without schooling. Currently, if braiders practice their craft without a cosmetology license, they risk committing a misdemeanor, punishable by fine of up to $500 per infraction.

As a result, many women like Barnes-Thomas have been forced to either give up the craft, spend up to $20,000 for tuition in beauty school to complete 1,500 hours of training or simply operate without a cosmetology degree with the fear of getting caught. And while many women have chosen to operate businesses without a license, Barnes-Thomas said she prefers to follow the law.

Wesco proposed House Bill 1243 earlier this year, which would remove natural hair braiding from the cosmetologist licensing requirement. This past week, the bill passed through the Employment, Labor and Pensions Committee and is headed for a full House vote. He said the change would create economic opportunities for potential business owners.

To Wesco, the regulation is a burden on potential small-business owners and "this is a perfect example of regulation we don't need."

There is push back, however, from the profession itself, including hair stylists. Licensing rules ensure the safety of clients, they say.

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending February 10, 2017

Here is the Clerk's transfer list for the week ending Friday, February 10, 2017. It is two pages (and 23 cases) long.

Two transfers were granted last week:

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

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Indiana Transfer Lists

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 (2):

Katherine Fraze v. The Floyd County Health Department and The City of New Albany Department of Animal Control (mem. dec.)

Lori A. Spang v. Timothy R. Spang (mem. dec.)

NFP criminal decisions today (2):

Charles Goodman v. State of Indiana (mem. dec.)

Josselyn Patricia Johnson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Ind. App.Ct. Decisions

Courts - Want to know more about federal district courts issuing national injunctions?

On Nov. 3, 2016, Amanda Frost had this "Academic Highlight" in SCOTUSblog that began:

Should a single district court judge issue a nationwide injunction against the federal government? That question was front and center in the aftermath of the Supreme Court’s tie vote in United States v. Texas, which left in place a nationwide preliminary injunction barring the Obama administration from granting a temporary reprieve from removal to certain unauthorized immigrants. Would-be beneficiaries of President Barack Obama’s initiative have filed lawsuits in Illinois and New York, arguing that the injunction should not apply outside the states that were parties to the lawsuit. The propriety of nationwide injunctions has come up recently in other contexts as well. Over the past few months, district courts have issued nationwide injunctions barring implementation of the Labor Department’s “persuader rule” and the Education Department’s transgender bathroom policy. Did these courts overstep their bounds?
And of course it has come up again this month, in State of Washington v. Donald Trump, re the travel ban.

Frost's SCOTUSblog article continued:

In a new paper, UCLA School of Law professor Samuel Bray examines the history of nationwide injunctions, as well as their costs and benefits. He concludes with a sensible proposal for limiting such injunctions and argues that the Supreme Court has both the power to impose such a rule and the incentive to do so to ensure that legal issues have a chance to percolate in the courts of appeal.
Here is the abstract to the 63-page, Feb. 9, 2017 version of Bray's paper, "Multiple Chancellors: Reforming the National Injunction."
In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to non-parties. This Article offers a new analysis of the scope of injunctions to restrain the enforcement of a federal statute, regulation, or order. It considers the consequences of the national injunction: more forum-shopping, worse judicial decision-making, a risk of conflicting injunctions, and tension with other doctrines of federal courts. This Article makes two further contributions.

First, it shows that the national injunction is a recent development in the history of equity, traceable to the second half of the twentieth century. There was structural shift at the Founding from a single-chancellor model to multiple-chancellor model, though the vulnerabilities in the latter did not became visible until the mid-to-late twentieth century, with changes in how judges thought about legal challenges and invalid laws. Only with those changes did the national injunction emerge.

Second, this Article proposes a single clear principle for the scope of injunctions against federal defendants. A federal court should give what might be called a “plaintiff-protective injunction,” enjoining the defendant’s conduct only with respect to the plaintiff. No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction. This principle is based on Article III's grant of "the judicial Power," which is a power to decide cases for parties; and on the practice of traditional equity.

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Courts in general

Environment - "'It’s devastating,' says a former Interior Department employee who worked on one of dozens of regulations in Congress' cross hairs"

This story today in Politico, reported by Alex Guillén And Marianne Levine, begins:

Joe Pizarchik spent more than seven years working on a regulation to protect streams from mountaintop removal coal mining.

It took Congress 25 hours to kill it.

The rule is just one of dozens enacted in the final months of the Obama administration that congressional Republicans have begun erasing under a once-obscure law — much to the dismay of agency staffers who hauled those regulations through the long process to implementation.

“My biggest disappointment is a majority in Congress ignored the will of the people,” said Pizarchik, who directed the Interior Department’s Office of Surface Mining Reclamation and Enforcement from 2009 through January. “They ignored the interests of the people in coal country, they ignored the law and they put corporate money ahead of all that.”

The arrival of a Republican president opened the door for GOP lawmakers to employ a rarely used legislative tool, the Congressional Review Act of 1996, to nullify executive branch regulations issued since mid-June. The act allows lawmakers to sandblast recently enacted rules with a simple majority vote — as they did last week to the stream regulation, which the Interior Department had completed in December.

President Donald Trump is expected to sign off on that repeal, along with others moving through the Capitol.

Congress has successfully used the 1996 law only once before, but Republicans are wielding it now to slash away potentially dozens of late-term Obama rules. That has left officials who spent years working on those rules feeling rubbed raw.

ILB: The ILB has a very long list of posts on mountaintop mining.

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Environment

Ind. Gov't - What can happen when Gov. and Attorney General are of different parties ...

Example: Kentucky. From the Lexington Herald Leader on Friday, a story by Daniel Desrochers that begins:

FRANKFORT The feud between Gov. Matt Bevin and Attorney General Andy Beshear continued Friday as Bevin accused Beshear of shirking his duty and Beshear publicly responded to a request for information filed by the governor that sought details about the inner workings of Beshear’s office.

In a news conference live-streamed on YouTube, Beshear defended the accomplishments of his office over the past year, saying he wanted to be as transparent as possible with the public.

“I’m not the governor’s lawyer, or the legislature’s lawyer. I’m the people’s lawyer,” Beshear said.

By releasing his response to Bevin publicly, Beshear said, “I believe the information can’t be taken out of context, regardless of who would take it out of context. You can’t take just one line from a letter and use it in any way to mislead people.”

Beshear, a Democrat, was responding to two requests issued under Section 78 of the Kentucky Constitution, which allows Bevin, a Republican, to request information from the other constitutional officers. Beshear said he has received approximately five of those requests since taking office in January 2016. * * *

Beshear’s news conference came hours after Bevin’s office issued a news release that said, “Beshear has not lifted a finger to defend the constitutionality of HB 2.”

Bevin was referring to a lawsuit filed by the ACLU of Kentucky that challenges the constitutionality of a law approved last month that requires women to view the results of an ultrasound before getting an abortion.

ILB: Of course, a Governor and separately elected Attorney General of the same party also may differ.

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Indiana Government

Ind. Courts - Vacancies on 7th Circuit, Northern & Southern Districts of Indiana, and U.S. Attorney positions

U.S. Senator Todd Young has a webpage requesting applications from qualified individuals who would like to be considered for an appointment as a federal judge, U.S. Attorney, or U.S. Marshall. More:

Federal Judge Applications

Indiana currently has four judicial vacancies: three in the District Court (Northern, Fort Wayne; Northern, South Bend; Southern, Indianapolis) and one in the 7th Circuit Court of Appeals.

U.S. Attorney Applications

Indiana has two U.S. Attorney vacancies: one in the Northern District and one in the Southern District.

U.S. Marshall Applications

has two U.S. Marshall vacancies: one in the Northern District and one in the Southern District.

Links to the applications are provided.

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Indiana Courts

Law - Voting rights and redistricting reform are focus of weekend editorials

The Sunday NY Times editorial is headed "Republicans Hold On to a Myth to Hold On to Power." It begins:

Given the increased political power Republicans won in the last elections, from Washington to red-state legislatures, voters might expect the party to feel that the nation’s voting procedures are working quite well. Yet this is far from the case, as triumphant Republicans are using their enhanced clout to continue their campaign playing up the mythical threat that voter fraud abounds in the nation.

The newest and loudest zealot in this cause is, of course, President Trump, with his scurrilous claim that millions of illegal ballots cost him a popular vote majority. His baseless claim only encourages the renewed efforts at voter suppression reported to be underway in a score of Republican-dominated statehouses intent on making it harder for citizens to register or vote.

Mr. Trump is trying to sell the false idea that he was fraudulently denied a clear mandate. Republican state legislators, in turn, are no more convincing but just as cynical in insisting that elaborate new ballot protections are needed — protections that effectively target poor people, minorities and students, who tend to favor Democratic candidates.

In the Fort Wayne Journal Gazette's Sunday Centerpiece this weekend, Julia Vaughn, director of Common Cause Indiana, writes that "Stalled redistricting efforts need citizens' push."
The 2017 Indiana General Assembly is in full swing, and lots of important issues are getting their time in the legislative spotlight. * * *

House Bill 1014
, legislation that would put a politically balanced and diverse group of Hoosier voters in charge of redistricting, has yet to receive a hearing in the House Elections Committee. If that doesn’t change soon, redistricting reform will be dead for this session. We can’t let that happen.

This issue is so important that the Indiana Bicentennial Visioning Project, led by the much-respected bipartisan team of former congressman Lee Hamilton and former lieutenant governor Sue Ellsperman identified ending gerrymandering as one of Indiana’s most important challenges as we enter our third century. Unfortunately, too many lawmakers are ignoring this call for change. * * *

Let your state representative and state senator know you want an end to gerrymandering and a citizens’ redistricting commission in place before the next round of redistricting in 2021. Tell them we need a group that is truly independent of the legislature to draw the new maps and they must operate in a way that encourages public participation and that is fully transparent. Remind your legislators that it’s not their district, that it belongs to the voters and that we need to play a role in designing what they look like.

ILB: According to this House Election and Appointment Committee webpage (which also lists the membership), the Committee does not even have another meeting scheduled.

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to General Law Related

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 2/13/17):

Thursday, February 16

Next week's oral arguments before the Supreme Court (week of 2/20/17):

Thursday, February 23

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 2/13/17):

Wednesday, February 15

Thursday, February 16

Next week's oral arguments before the Court of Appeals (week of 2/20/17):

Friday, February 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, February 13, 2017
Posted to Upcoming Oral Arguments

Saturday, February 11, 2017

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

In Douglas Bird v. Nancy A. Berryhill (SD Ind., Lawrence), a 5-page opinion, Judge Psoner writes:

The Social Security Administration denied Douglas Bird’s application for disability insurance benefits. After he sought judicial review, 42 U.S.C. § 405(g), the Commissioner agreed with him that the agency’s adverse decision should be set aside and moved that the matter be remanded for further proceedings before an administrative law judge. But that proposal did not satisfy Bird, who wanted the district court to bypass further proceedings before an ALJ and instead simply direct the agency to award him benefits. The district court refused, precipitating this appeal. * * *

[Concerns applicability of findings from the VA]

We close by noting for future reference a recent change in SSA’s regulation regarding decisions by other governmental agencies, such as the VA; see 20 C.F.R. § 404.1504. The current regulation provides that a disability determination by another agency does not bind the SSA. The new regulation adds that for claims filed on or after March 27, 2017, SSA will not try to analyze the other agency’s decision, although it will consider the decision’s supporting evidence. Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5848–49 (Jan. 18, 2017) (to be codified at 20 C.F.R. pts. 404 and 416).

Bird requests that the proceedings on remand be expedited; the Commissioner agrees with the request. AFFIRMED

In USA v. Minas Litos and Adrian and Daniela Tartareanu (ND Ind., Judge Simon), a 10-page opinion in which he comments at length on the Bank of America and its mortgage practices prior to the financial meltdown of 2008, Judge Posner writes:
The three defendants were indicted in 2012 on charges of having committed and conspired to commit wire fraud, in violation of 18 U.S.C. §§ 1343 & 1349, by extracting money from lenders (including Bank of America) that had financed the sale of properties owned by the defendants in Gary, Indiana. The fraud lay in the fact that the defendants had represented to Bank of America (we can ignore the other lenders, who are not affected by this litigation) that the buyers of the properties were the source of the down payments on the houses, whereas in fact the defendants were the source, having given the buyers the money to enable them to make the down payments. They had also helped the buyers provide, in their loan applications to Bank of America, false claims of creditworthiness. In each of the transactions the defendants walked away with the purchase price of the property they had sold minus the down payment amount, since the “down payment” they received was their own cash, which they’d surreptitiously transferred to the impecunious buyer.

The defendants’ guilt of fraud is not at issue. The issue is the propriety of the restitution, in the amount of $893,015, that the district judge ordered the defendants to make to Bank of America, on the ground that they had cheated the bank by pretending that the buyers, not they, were the source of the down-payment money for the sale of their houses. The judge credited a written declaration by a Bank of America representative that “had [the Bank] known the true source of [the] down payment funds, [it] would not have issued the subject loans” to the buyers of the properties. The district judge rejected the defendants’ argument that the bank was not entitled to restitution because it had been a coconspirator; he ruled that the bank “did not participate in the kickbacks to buyers or provide false information on loan applications.”

The judge was right about that, and right too that the bank had lost $893,015 as a result of the buyers’ defaulting on the loans that the bank issued to finance the purchase of sixteen houses from the defendants. But he was wrong to take the bank representative at her word; her affidavit provided no basis for determining that she knew that Bank of America wouldn’t have made the loans had it not been for the defendants’ fraudulent statements.

The order of restitution is questionable because Bank of America, though not a coconspirator of the defendants, does not have clean hands. It ignored clear signs that the loans that it was financing at the behest of the defendants were phony. Despite its bright-eyed beginning as an upstart neighborhood bank for Italian-American workers, Bank of America has a long history of blunders and shady practices * * *

To say the bank was merely negligent would be wrong. Recklessness is closer to the mark. Negligence is merely failure to exercise due care; often it is unconscious. Recklessness is knowing involvement in potentially harmful activity. The bank was reckless. It had to know that it would receive applications for mortgage loans from people who knowing or doubting their ability ever to repay them would misrepresent their assets and earning power in order to obtain the loans, their thinking taking the form of “sufficient unto the day is the evil thereof,” a biblical maxim (meaning “live in the present”) that is better applied to spiritual life than to investment decisions. And the bank knew that in a bubble period it would have no difficulty selling the mortgages it had issued—even mortgages doomed to default; the bank’s failure to demand evidence of the financial sufficiency of the mortgagees constituted deliberate indifference to a palpable risk that the bank’s executives must have been aware of. The bank had every incentive to close its eyes to how phony these loan applications were, because it expected to turn around and sell the mortgages to a hapless Fannie Mae. (It was foiled in this scheme, regarding the sixteen properties at issue, only because Fannie Mae noticed just how “irregular” the transactions were and forced Bank of America to take the mortgages back.)

Restitution for a reckless bank? A dubious remedy indeed—which is not to say that the defendants should be allowed to retain the $893,015. That is stolen money. We don’t understand why the district judge, given his skepticism concerning the entitlement of Bank of America to an award for its facilitating a massive fraud, did not levy on the defendants a fine of $893,015. 18 U.S.C. § 3571(d) authorizes a fine of not more than the greater of twice the gross gain or the gross loss caused by an offense from which any person either derives pecuniary gain or suffers pecuniary loss. * * *

We ask the district judge to give serious consideration on the remand to the possible alternative remedy of a heavy fine on the defendants. With regard to such a possibility the judge may wish to ask either the Board of Governors of the Federal Reserve System or the Office of the Comptroller of the Currency (or both, perhaps in collaboration) to submit an amicus curiae brief addressed to the issue of the appropriateness of an order of restitution in a case such as this. * * *

Bank of America was deliberately indifferent to the risk of losing its own money, because it intended to sell the mortgages and transfer the risk of loss to Fannie Mae for a profit.

Posted by Marcia Oddi on Saturday, February 11, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - More on: Charlestown Ind. Plans to Bulldoze Low-income Neighborhood for Private Development

Updating this last ILB post from yesterday, the NY Times this morning has a long story by Monica Daey on Charlestown, Indiana, headed "Where a City Sees Decay, Neighbors Fight to Save a Community." Some quotes:

Residents of the neighborhood, who say it is one of the few places in Charlestown with rentals available for $400 or $500 a month, say the code violation crackdown is meant to drive out people who do not make much. With the opening of a new bridge between Louisville, Ky., and this part of Indiana, these residents say, Charlestown leaders are dreaming of transforming their city into a high-end bedroom community for that far larger city.

“They don’t want you if they think you’re poor,” said Ellen Keith, as she cut a client’s hair at Hair & Such Beauty Salon.

“Before all this, I thought we were all equal. I thought I lived in a mansion,” said Ms. Keith, who has lived for four decades in a pristine, painstakingly decorated Pleasant Ridge home with her husband, Dave. “But this is all about who is rich and who is poor, and now people around here look at us differently based on our address. It breaks our hearts what’s happened.”

On Friday, residents who hope to save Pleasant Ridge filed a request for a preliminary injunction in state court, aided by the Institute for Justice, a libertarian public interest law firm that sees what is happening here as a troubling new way for a city, in essence, to clear land.

“What’s very unusual about this is using code enforcement to circumvent eminent domain law,” said Jeff Rowes, a lawyer in the case, which asks a judge to stop the city. “And we’re worried about this becoming a model — the model for how to replace housing for people of modest means in states everywhere that have passed limits on the powers of eminent domain.” [ILB emphasis]

Via the Institute for Justice, here is the 61-page complaint, plus exhibits, filed in Clark County Circuit Court on Jan. 31, 2017, and here is the 33-page memorandum of law in support of plaintiffs’ motion for a preliminary injunction, filed Feb. 10 before Special Judge Maria Granger. It concludes:
The City is ignoring its own ordinance, state law, and the state and U.S. constitutions in order to force mostly vulnerable people of modest income to sell to a wealthy developer for pennies on the dollar. Plaintiffs, the Association’s members, and other Pleasant Ridge property owners are in imminent danger of the City moving on to them. Plaintiffs ask this Court to issue a preliminary injunction to stop the City from continuing its illegal and unconstitutional policy while this case is pending.

Posted by Marcia Oddi on Saturday, February 11, 2017
Posted to Indiana Government

Friday, February 10, 2017

Ind. Gov't. - Charlestown Ind. Plans to Bulldoze Low-income Neighborhood for Private Development

Elizabeth Beilman reported last fall for the Clark County News & Tribune, in a very long Sept. 26, 2016 story, that Charlestown’s Pleasant Ridge subdivision, a neighborhood of about 350 homes, has become the focus of a redevelopment project:

For years, Charlestown city officials have tried to improve the neighborhood that is declining in property values and attracting more and more renters.

While the city hasn’t yet worked out the details, one thing is certain — this time around, redevelopment of Pleasant Ridge is in the near future.

“Like any development, its time has come,” Mayor Bob Hall said. “It’s time to start looking to do something else.” * * *

Within a month or so, Charlestown City Attorney Mike Gillenwater said the redevelopment commission will likely pass a resolution declaring Pleasant Ridge “an area needing redevelopment,” which gives the body more authority to intervene.

The commission will request proposals from private developers and choose one or create its own.

If all goes as officials hope, the city could have a solid plan detailing a new neighborhood by the beginning of 2017, Hall said. * * *

John Hampton, an agent with Neace Ventures, has already bought 38 properties in the neighborhood. By the end the week, he hopes to have 100 more. * * *

His goal is to soon own all the properties in Pleasant Ridge. Demolition will begin next year, he said.

“If [city officials] are telling me it’s a blighted area, then I’m very hopeful that I’ll be able to buy the homes,” Hampton said. “That the people who are living there will say, ‘Yes, you’re right.’”

But Hampton may have a fight ahead of him. * * *

When the redevelopment commission declares Pleasant Ridge an area in need of redevelopment, it will have the power of eminent domain, or taking homes through legal means.

Today the Institute for Justice, out of Arlington, VA, has issued a news release headed: "Lawsuit Challenges Mayor’s Mission to Bulldoze Low-income Neighborhood for Private Development: Institute for Justice Partners with Charlestown, Ind. Homeowners to Fight City’s Illegal Land Grab." The lengthy release begins:
Charlestown, Ind.—Imagine being told that the home you’ve lived in for most of your life—a home you own free and clear, a home you’ve raised your family in—was going to be bulldozed by the city to make room for a new housing development. That nightmare is an unfortunate reality for dozens of homeowners in the Pleasant Ridge neighborhood of Charlestown, Indiana. The city, led by Mayor Bob Hall, has concocted a scheme to trample the constitutional rights of its residents by forcing the sale of their homes to a private real estate developer.

Today, in the wake of the city’s unconstitutional actions, the Institute for Justice (IJ) is partnering with the neighborhood to sue the city. The motion, filed in the Clark County Circuit Court, asked the judge to issue an immediate preliminary injunction protecting the homeowners from the city’s illegal scheme and to put an end to the mayor’s mission to destroy this vibrant working-class neighborhood.

“The city’s ultimate goal is to oust the current residents, bulldoze their homes and build a fancy new subdivision for much wealthier people. This is one of the most egregious abuses of property rights the Institute has ever seen,” said IJ Senior Attorney Jeff Rowes, who represents the neighborhood. “Pleasant Ridge is a community of hardworking, blue-collar people who love their neighbors, take care of their neighborhood and want to live in peace. They deserve a government that protects their rights and leaves them be.”

Here’s how the city’s illegal scheme works. In the past, cities used eminent domain to seize homes for private development. But following the notorious Kelo Supreme Court decision, Indiana enacted strong protections to prevent eminent domain from being abused for “economic development” projects like this one. The city and a developer called Neace Ventures, however, concocted a plan to evade these protections by turning the city’s once-benign housing code into a bludgeon.

The ILB has a long list of earlier posts mentioning the "Institute for Justice," including this one from 2014 on the Charlestown project.

Posted by Marcia Oddi on Friday, February 10, 2017
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 3 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (3):

Tradale Jones v. State of Indiana (mem. dec.)

Bert McQueen, III v. State of Indiana (mem. dec.)

Darius T. Sutton v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, February 10, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't - "Mayor says local control at stake with bill that would prohibit inclusionary zoning"

A long $$ story today in the Bloomington Herald-Times, reported by Megan Banta, begins:

Mayor John Hamilton has a request for state lawmakers trying to stop local government from using inclusionary zoning to create more affordable housing: “Please let us do our work.”

Legislators are discussing a bill that would prohibit counties, cities and towns from adopting inclusionary zoning, a policy that either requires or encourages new residential developments to make a certain percentage of units affordable for low- or moderate-income residents.

Inclusionary zoning is an affordable housing tool that no Indiana city has in place — yet. But Bloomington officials were considering adding it to the Unified Development Ordinance, which governs planning decisions.

The bill, authored by Republican state Sen. Travis Holdman of Markle, would stop that plan in its tracks.

Posted by Marcia Oddi on Friday, February 10, 2017
Posted to Indiana Government

Ind. Gov't. - "Pence vetoes effort to limit environmental regs"

That was the headline to a March 24, 2016 story in the Indianapolis Star, reported by Tony Cook. The story is relevant again because yesterday (see this ILB post from earlier today and this one from yesterday) the Indiana House overrode last year's veto. If the Senate also overrides it, and only a majority vote is required, HEA 1082-2016 will become law.

The ILB was among many who applauded this veto by Gov. Pence in 2016 as one of his best decisions. For why, here are some quotes from reporter Cook's 2016 story:

Gov. Mike Pence has vetoed a measure that would have prevented state environmental standards from being stricter than federal requirements.

"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," Pence said in a statement.

Advocates of House Enrolled Act 1082, commonly known as the "no more stringent than" bill, argued that it was needed to protect businesses from overly aggressive environmental regulators. But opponents said the measure would handcuff the Indiana Department of Environmental Management and prevent the state from reacting to environmental and public safety threats. They often cited the water contamination crisis in Flint, Mich., as an example of such dangers.

The measure would have prevented IDEM from setting any standards more stringent than federal rules until the end of the next legislative session. That would give lawmakers an opportunity to review any new, stricter rule.

But Pence, a Republican who has decried new greenhouse gas rules under the Obama administration, agreed with critics that the measure went too far.

"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," he said. "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."

Environmental groups praised the move, but worried the Republican-controlled legislature could override Pence's veto. That's uncommon but not difficult in Indiana, where the General Assembly can override a veto with a simple majority.

Posted by Marcia Oddi on Friday, February 10, 2017
Posted to Environment | Indiana Government

Law - "Watching Donald Trump Try to Puzzle Out What ‘Asset Forfeiture’ Means Is Deeply Discomfiting"

That is the headline to a story in New York Magazine, authored by Jesse Singal. Read it in full here, in conjunction with this Feb.8 ILB post headed "Should Police Be Allowed to Keep Property Without a Criminal Conviction?"

Posted by Marcia Oddi on Friday, February 10, 2017
Posted to General Law Related

Ind. Gov't. - "With Pence gone, fellow Republicans undo his work in Indiana"

This story by Tony Cook, Chelsea Schneider and Kaitlin L. Lange of the Indianapolis Star is in today's USA TODAY. Some quotes:

INDIANAPOLIS — Vice President Mike Pence's fellow Republicans took a number of steps Thursday to undo his policies, just weeks after the former governor left Indiana for the White House.

His handpicked successor and former lieutenant governor, Gov. Eric Holcomb, began the day with a news conference where he announced that he was canceling contract negotiations to lease state-owned cellphone towers to an Ohio company. The Pence administration had struck a tentative deal with the company and promised it would cover the cost of more than $50 million in bicentennial construction projects he initiated.

Holcomb also pardoned Keith Cooper, who was wrongfully convicted of robbery nearly 20 years ago, and declared a disaster emergency for an East Chicago neighborhood where residents have been forced to relocate because of lead contamination. * * *

Holcomb's decision to change directions on those issues are the latest indication that his approach to governing may be more pragmatic and less ideological than that of his predecessor.

Last month, Holcomb said he supported local needle exchange programs to stop the spread of disease among drug abusers. Pence opposed giving local officials that ability. Holcomb has also said he supports tax increases as an option to pay for road work, which Pence opposed last year. * * *

Even as Holcomb was announcing his executive actions in his second-floor office at the Statehouse, lawmakers in the General Assembly — where Republicans have supermajorities in both chambers — were in the process of overriding two of Pence's vetoes from last year.

Pence had vetoed a measure lawmakers passed in 2016 that would have allowed private university police departments to keep many of their records secret. House lawmakers voted 93-2 to overturn the veto.

Pence also struck down a measure last year that would have prevented state environmental regulators from establishing rules stricter than federal rules until the General Assembly had an opportunity to review them. The House voted 65-29 to override that veto. * * *

Senate leader David Long, R-Fort Wayne, said he expects his chamber to vote in favor of overriding the vetoes as well.

Posted by Marcia Oddi on Friday, February 10, 2017
Posted to Indiana Government

Ind. Gov't. - "Governor Holcomb declares disaster emergency at East Chicago Superfund site"

Updating a number of earlier ILB posts, Sarah Reese and Dan Carden of the NWI Times reported yesterday:

INDIANAPOLIS — Gov. Eric Holcomb signed an executive order Thursday declaring a disaster emergency for East Chicago's USS Lead Superfund site.

The declaration provides for 30 days of enhanced state assistance for the estimated 100 residents who have yet to relocate from the lead contaminated West Calumet Housing Complex, as well as other lead-impacted citizens in the affected area.

Specifically, the state will aggressively seek $2 million in federal funding to demolish West Calumet, along with additional federal resources to remediate soil and replace lead water pipes in adjacent neighborhoods.

Holcomb also ordered state agencies to seek federal approval for more lead testing sites throughout the city, promote the development of new, affordable rental housing in East Chicago and create a one-stop website for residents to keep up with federal, state and local progress reports.

In addition, the Indiana Department of Homeland Security is empowered to obtain any services needed on an emergency basis from any level of government.

"What I want to do is make sure we get this right," Holcomb said. "Putting a 30-day shot clock on our efforts, I think, will help us not just corral, but (also) focus all of our efforts — the federal, state and local efforts — on it right now." * * *

Holcomb's predecessor, now-Vice President Mike Pence, rejected East Chicago Mayor Anthony Copeland's request for an emergency declaration before Pence left office one month ago.

In a letter, Pence's general counsel Mark Ahearn said the state already had provided adequate assistance.

Residents and community groups heavily criticized Pence last year for not meeting personally with those affected by the lead and arsenic contamination. His office periodically had representatives on-site.

Posted by Marcia Oddi on Friday, February 10, 2017
Posted to Environment | Indiana Government

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. * * *

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.

Such written dissents to transfer decisions are rare. Here is one from Dec. 2, 2016, and one from April 3, 2013.

Posted by Marcia Oddi on Thursday, February 09, 2017
Posted to Indiana Transfer Lists

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:

    • 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.
    IDEM inspectors work closely with communities to help them return to compliance and oversees implementation of their plans.
  • 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.

Posted by Marcia Oddi on Thursday, February 09, 2017
Posted to Indiana Government

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.

Posted by Marcia Oddi on Thursday, February 09, 2017
Posted to Indiana Government

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.

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 civil decisions today (3):

In the Matter of the Termination of the Parent-Child Relationship of T.P., Mother, S.R., Father, and B.R., Minor Child, T.P. and S.R. v. Indiana Department of Child Services (mem. dec.)

City of Indianapolis v. Erick Amaro-Sanchez (mem. dec.)

In the Matter of the Adoption of K.D., B.D. v. W.D. and D.D. (mem. dec.)

NFP criminal decisions today (3):

Brian D. Thompson v. State of Indiana (mem. dec.)

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

Virginia C. Bryant v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, February 09, 2017
Posted to Ind. App.Ct. Decisions

Ind. Law - "Bill eyes limit for attorney fees"

Tony Cook reports today in a front-page Indianapolis Star story [here is a better link]:

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 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.

The important story continues:
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.

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.

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?"

Here is the current language of HB 1491, SECTION 93:

13 1, 2017]: Sec. 7. (a) This section applies to a class action against the
14 state.
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
34 determination.

Posted by Marcia Oddi on Thursday, February 09, 2017
Posted to Indiana Law

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.

Posted by Marcia Oddi on Thursday, February 09, 2017
Posted to General Law Related

Ind. Gov't. - More on "Ivy Tech refuses to explain why a top South Bend official left"

Updating this ILB post from Feb. 7th, quoting a South Bend Tribune story by Margaret Fosmoe, the Tribune has an editorial today that begins:

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.”

Posted by Marcia Oddi on Thursday, February 09, 2017
Posted to Indiana Government

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).

Posted by Marcia Oddi on Thursday, February 09, 2017
Posted to Ind. (7th Cir.) Decisions

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

Tuesday, February 07, 2017

Ind. Courts - Most Indiana trial court documents will soon be available online

The Supreme Court has announced today:

A wide range of Indiana trial court documents will soon be available online for free through the state's case management system, Odyssey, at mycase.in.gov. The increased access is part of a larger initiative to make court documents more easily available to the public. Nearly 70% of the state's newly filed cases are in Odyssey, which is used by 258 courts in 60 counties. * * *

The Court order describes the timeline for financial information and court orders to be available online. For example, financial information, such as payments made by defendants/litigants to Clerk's Offices will be available March 1. Certain civil orders and expungement pleadings will also be available March 1. Final orders in criminal cases will be available August 1. Attorneys and parties to a case will also gain greater access to cases, including their own electronic records in coming months by registering through the system. The Task Force will continue to meet to study online access to records and is expected to make additional recommendations to the Court. * * *

The next meeting is March 10 at the Indiana Government Center South, conference rooms 4 and 5 from 12:00 – 2:00 p.m. More information about the Task Force can be found online.

See the order itself for complete details and timetable.

For background, start with this ILB post from Nov. 4, 2016.

Posted by Marcia Oddi on Tuesday, February 07, 2017
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today, re question of federal preemption of state's statute of limitations

In In Re: The Matter of D.J. and G.J., Children in Need of Services; Gr.J. (Mother) and J.J. (Father) v. Ind. Dept. of Child Services, a 9-page, 5-0 opinion, Justice Slaughter writes:

We have previously held that a tardy notice of appeal forfeits the aggrieved party’s right to appeal, but does not deprive a reviewing court of jurisdiction to hear the appeal. Today, we hold that a premature notice of appeal likewise is not fatal to appellate jurisdiction. The two prerequisites for invoking appellate jurisdiction were both present here—an appealable trial-court order and entry of the notice of completion of clerk’s record in the chronological case summary.

The trial court found that Parents’ two minor children were “in need of services”—meaning they had been abused or neglected at home and were unlikely to receive the care or treatment they needed without a court’s coercive intervention. A child-in-need-of-services (CHINS) determination is not a final judgment. Finality does not occur until the court, after a dispositional hearing, resolves such questions as what specific services are warranted and whether the child should be placed in an alternative living arrangement, either provisionally or permanently. Although the CHINS determination was not final, Parents filed notices of appeal challenging only this interlocutory ruling and not the court’s later dispositional order. The Court of Appeals concluded that it lacked jurisdiction and dismissed Parents’ appeal. We do not take issue with the Court’s decision to dismiss the appeal; it is never error to dismiss a forfeited appeal. The Court’s only error was its stated reason for dismissal—lack of jurisdiction.

Despite Parents’ forfeited appeal, we exercise our discretion to decide their case on its merits. Having previously granted transfer in this CHINS matter, we reverse the trial court. The record does not support the court’s finding that Parents needed the court’s coercive intervention to provide for their Boys’ needs at the time of the dispositional hearing. * * *

Mother and Father filed separate notices of appeal (on December 11 and 14, respectively) challenging the CHINS determination after the court held the dispositional hearing but before it entered the dispositional order. After full briefing, the Court of Appeals dismissed Parents’ appeal with prejudice based on lack of jurisdiction. Parents then sought transfer, which we granted. * * *

We hold that Parents’ premature notices of appeal did not deprive the Court of Appeals of jurisdiction to hear the appeal. Given the importance of the family interest at issue here, we exercise our discretion to decide this case on its merits. Having previously granted transfer, we reverse the trial court’s CHINS determination, concluding that the Department failed to prove by a preponderance of the evidence that Parents required the court’s coercive intervention to ensure the Boys were properly cared for.

Posted by Marcia Oddi on Tuesday, February 07, 2017
Posted to Ind. Sup.Ct. Decisions

Courts - "National Panel Advises Judges On People Who Can't Pay Court Fees"

Joseph Shapiro reports for NPR:

When NPR in 2014 ran a series about how people around the country end up in debtors' prisons when they don't have the money to pay court fines and fees — even on minor infractions like traffic tickets — one cause of the problem, the stories noted, was confusion among state judges.

Many didn't know that, in 1983, the U.S. Supreme Court had ruled against the practice. Or judges had no set standard for determining who was too poor to pay court fines and fees that typically run hundreds or thousands of dollars. Some judges told impoverished people to pay with their veterans or welfare benefits, or told them to get money from a relative. One man in the NPR series was homeless and got caught in Georgia stealing a can of beer worth less than two dollars, but ended up being sentenced to a year in jail when he couldn't pay fines and costs that ran more than $400 a month.

Now the nation's top state judges have taken a big step to end the practice of sending impoverished people to debtors' prisons. The National Task Force on Fines, Fees and Bail Practices on Friday issued a "bench card" — a clear set of instructions — to be used by state judges across the country.

The two-page set of guidelines, which judges can keep at their fingertips on the bench, tell judges that they're only allowed to send people to jail for non-payment when they have the means to pay, but "willfully" refuse to pay. The instructions spell out how to determine who falls below the poverty line, and how to come up with alternative sanctions, like reducing a fine, extending the time to pay it, or requiring community service, instead.

There is much more in the story.

Here is the 2-page bench card.

Posted by Marcia Oddi on Tuesday, February 07, 2017
Posted to Courts in general

Ind. Gov't. - "Ivy Tech refuses to explain why a top South Bend official left"

Margaret Fosmoe reports today in a lengthy story in the South Bend Tribune:

SOUTH BEND — Ivy Tech Community College is refusing to release information about recent departures of top regional administrators and changed its answer about whether the area’s financial director quit, was fired or was pressured to resign.

And the college’s leaders vow in the future to release no information about employee resignations and terminations, a stance that violates state law and an opinion from Indiana’s public access counselor that the state-funded college must make the information available to the public.

Meanwhile, Ivy Tech’s four-county region, which includes the South Bend, Elkhart County and Warsaw campuses, faces a projected $2.67 million budget deficit for this fiscal year that may result in employee layoffs.

Karen Vargo, executive director of finance, facilities and security for the college’s north-central region, left the college on Sept. 30. Her salary was $116,091 per year.

The South Bend Tribune on Oct. 11 filed a public records request with Thomas Coley, chancellor of the north-central region, requesting information about Vargo’s status. If Vargo was suspended, demoted or terminated, the factual basis for that discipline is required to be public under Indiana’s Access to Public Records Act. * * *

On Dec. 7, The Tribune filed a complaint against Ivy Tech with Indiana Public Access Counselor Luke Britt. The complaint included a copy of the human resources report describing Vargo’s departure as a termination.

Indianapolis attorney J.D. Lux, assistant general counsel for Ivy Tech, filed a response for the college to the PAC office. “Whenever anyone leaves their job it can be said that their employment has been terminated,” Lux wrote.

“There were no formal charges or disciplinary action against Ms. Vargo,” the attorney added.

In his response, Lux did not explain why some employees on the human resources report had “resignation” listed as their reason for leaving, while Vargo’s reason was listed as “termination.”

Britt sided with The Tribune. In his written opinion, he noted that the staffing report provided by Ivy Tech “clearly indicates the employee’s status is listed as ‘termination’ as opposed to ‘resignation’ like the other listed employees.”

Britt further wrote that the dismissal of a public employee “becomes a matter of public business.”

“It is clear ‘termination’ and ‘resignation’ are not used synonymously by Ivy Tech; therefore, there must be a factual basis as to why the employee was let go,” he wrote.

The day after Britt issued his opinion, Lux, the Ivy Tech attorney, asked Britt to reconsider and claimed the college made a mistake by listing Vargo’s departure as a termination.

“The word ‘Termination’ should not have appeared as the reason for the employee’s departure from employment with Ivy Tech on (the human resources report). That description was an error. It was a mistake in the Human Resources department in the South Bend Region,” the attorney wrote.

Posted by Marcia Oddi on Tuesday, February 07, 2017
Posted to Indiana Government

Courts - "Citizens United Lawyer [James Bopp] Targets Texas Campaign Finance Laws"

This long AP story by David Saleh Rauf, dateline Austin TEXAS, begins:

Political "dark money" and the founder of an organization tied to President Donald Trump's accusations of voter fraud will be at the center of a Texas Supreme Court case Tuesday that could reshape campaign finance laws in the country's second-largest state.

Chief questions facing the nine Republican justices on Texas' highest civil court include the legality of the state's ban on corporate contributions and disclosure requirements for political action committees. Some believe the case ultimately could wind up before the U.S. Supreme Court and potentially reshape campaign finance regulations nationwide.

Houston tea party group King Street Patriots, started by Catherine Engelbrecht, has been the focus of a longstanding lawsuit by the Texas Democratic Party accusing the organization of violating state campaign finance laws by engaging in political behavior when it dispatched poll watchers on behalf of the Texas Republican Party during the 2010 election. Democrats have used the case to press for disclosure of the group's donors.

But the nonprofit, represented by attorney James Bopp Jr., architect of the landmark Citizens United case that opened the door for corporations and unions to make unlimited independent expenditures in U.S. elections has fired back with a counterclaim challenging numerous provisions of Texas campaign finance law. The case has played out for years in Texas courts on whether key components of the state's campaign finance and disclosure system are constitutional.

Posted by Marcia Oddi on Tuesday, February 07, 2017
Posted to Courts in general

Ind. Decisions - Plaintiffs file petition for transfer in Pence redacted emails case [Updated]

The ILB has a long list of posts re the Jan. 9th Court of Appeals opinion in the case of Groth v. Pence.

There were two issues in the case. Quoting a Fort Wayne Journal Gazette editorial from Jan. 12th:

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. * * *

[But the governor also argued that under the separation of powers, the open records law did not apply to him.] “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.”

In a 19-page Petition to Transfer filed yesterday, Appellant William Groth presents the follow questions for transfer, and concluding:
1. Did the Court of Appeals improperly expand the common interest doctrine to impose confidentiality on a communication that was not generated in an attorney-client relationship and that was shared outside the relationship with non-clients?
2. Did the Court of Appeals improperly expand the deliberative materials exception in the public records law to include information received from outside an Indiana government agency?
3. Should factual information be disclosed? * * *

William Groth respectfully asks this Court to review the redacted or refused documents, to order the disclosure of the improperly withheld documents, to remand to the trial court for a determination of attorney fees, and for all other appropriate relief.

The deadline for filing is tomorrow. It is unknown whether the State will also file a petition for transfer, on the APRA applicability issue. There may be a question of whether or not they have standing on that issue.

Fatima Hussein of the Indianapolis Star
reports this morning in a lengthy story - some quotes:
An area labor attorney has petitioned the Indiana Supreme Court to take up his case against Vice President Mike Pence, in hopes that the court will reveal the contents of a political white paper the former governor has fought to keep secret for nearly three years.

If successful, the communications could reveal a slew of Republican political strategies that Pence and dozens of other U.S. governors devised against former President Barack Obama and an executive order issued on immigration during his time as president.

William Groth's petition for transfer to the Indiana Supreme Court is part of a more than two-year legal battle between the Democratic attorney and the current vice president, who was acting in his role as Republican governor of Indiana during the events in question.

"The petition we filed today raises important issues regarding the scope and application of certain exceptions to Indiana's public transparency law," Groth told the IndyStar.

Indianapolis attorney Greg Bowes filed the 19-page petition Monday afternoon on behalf of Groth. They claim the appeals court erred last January in determining that the white paper was a "deliberative material" for the purpose of preparing for litigation and thus siding with Pence.

The appeals court ruled that Groth does not have the right to view a political white paper that was included in a 2014 public records request.

The white paper in question contains legal theories in contemplation of litigation that was used by the governor in his decision to join State of Texas et al v. United States of America, which challenged a presidential executive order President Barack Obama issued regarding immigration.

Groth filed a request under the Indiana Access to Public Records Act seeking the documents related to the state’s decision to hire Barnes & Thornburg LLP as outside counsel in the suit.

The story continues:
In the 2-1 appellate court decision, 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, 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.

Chief Judge Nancy Vaidik concurred in part but ultimately dissented because she disagreed with the majority’s conclusion that Pence "has met his burden of showing that the white paper is not subject to disclosure.”

Vaidik wrote that she would "reverse the trial court on this issue and order Governor Pence to produce the white paper.”

In filing the petition to the Supreme Court, Groth is requesting the court consider whether the Court of Appeals improperly found that a document shared outside of the attorney-client relationship, here the white paper, is legally protected by the attorney-client relationship doctrine.

He is also asking the court whether the court of appeals improperly created a "deliberative materials exception" to state public records laws to include information received from outside an Indiana government agency.

"Pence continues to invoke those exceptions in his desire to keep secret from his constituents a document prepared not by his own attorneys but one from the office of the Texas Attorney General," Groth said.

Posted by Marcia Oddi on Tuesday, February 07, 2017
Posted to Ind. App.Ct. Decisions | Indiana Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (2):

In Celadon Trucking Services, Inc. v. Charles Wilmoth and Kent Vassey, on behalf of themselves and all others similarly situated, a 20-page opinion, Judge Barnes writes:

Celadon Trucking Services, Inc. (“Celadon”) appeals the trial court’s judgment in favor of Charles Wilmoth, Kent Vassey, and a class of similarly-situated individuals (“the Class”) in the amount of $3,302,923.60 plus pre- and postjudgment interest. We affirm.

The restated issues before us are: I. whether the trial court properly denied Celadon’s motion for judgment on the pleadings; and II. whether the trial court properly granted summary judgment in favor of the Class members on their claim that Celadon overcharged them for fuel purchases they made using a Celadon-issued debit card. * * *

The standard contract between Celadon and the Class members was ambiguous. There are no genuine issues of material fact precluding us from resolving that ambiguity as a matter of law. We agree with the trial court and the Class’s interpretation of the contract and, therefore, affirm the denial of Celadon’s motion for judgment on the pleadings and affirm the grant of summary judgment in favor of the Class. Affirmed.

In ABC Radiology, P.C., Jane Doe, John Doe, Anonymous Medical Associates, Inc., Sherry Patrick v. Cathy Gearhart , a 14-page opinion, Judge Altice writes:
Cathy Gearhart’s husband, Kent, died from renal cell cancer on January 14, 2015. After filing her proposed complaint for damages with the Indiana Department of Insurance, Gearhart, individually and as personal representative of Kent’s estate, filed the instant action against various defendants. As amended, the complaint alleges two counts based on claims of negligence and one count seeking declaratory judgment. Count I is a medical malpractice claim against ABC Radiology, P.C. (ABC), John Doe, M.D. (Dr. Doe), Anonymous Medical Associates, Inc. (AMA), and Jane Doe, ACNP (Nurse Doe). Count II is a common-law negligence claim against Sherry Patrick and her employer, AMA. Count III (incorrectly denominated as a second Count II in the amended complaint) is a claim for declaratory judgment against the Indiana Patients Compensation Fund/Indiana Department of Insurance (the Fund), AMA, Patrick, and AMA’s medical malpractice and general liability insurers. Count III seeks a determination of whether the claim in Count II is subject to the Indiana Medical Malpractice Act (the Act), which insurance policies provide coverage for this claim, and whether the Fund has a duty to make payments for any damages awarded for Count II.

Gearhart filed the complaint in the Marion Superior Court. Thereafter, the defendants named in Counts I and II (Defendants) jointly filed a motion requesting that the trial court sever Counts I and II from Count III and transfer venue of Counts I and II to Vanderburgh County, where the alleged negligence occurred and Defendants are located. Defendants argued further that Count III was improperly joined.

Gearhart responded that Marion County was a county of preferred venue because a necessary defendant to the action – the Fund – is a governmental organization with its principal office located there. See Ind. Trial Rule 75(A)(5). Gearhart argued also that all three counts were properly joined pursuant to Ind. Trial Rule 20 because they arise out of the same transaction or occurrence and have common questions of law and fact. Following a hearing, the trial court denied the motion. Defendants bring this interlocutory appeal, arguing that Gearhart’s joinder of the underlying negligence claims with the declaratory judgment claim was improper and deprived Defendants of their right to trial in a preferred venue county. Thus, we are asked to determine whether the trial court abused its discretion in denying Defendants’ motion to sever Counts I and II from Count III and transfer venue for those counts to Vanderburgh County. * * *

Defendants have not established that the trial court abused its discretion by finding that Counts I, II, and III were properly joined. Thus, as the Fund is a necessary party to Count III, Marion County is a county of preferred venue for the entire action. See T.R. 75(A)(5).

NFP civil decisions today (2):

Michael Kent Smith v. Thomas L. Taulman, II; Thomas McClelland; Christina R. Hurley; Gary R. Meunier; Denny D. Smith; T.K.O. Enterprises, Inc.,; T.K.O. Commercial Development, LLC; et al. (mem. dec.)

Christine Wedding v. Donald S. Wedding (mem. dec.)

NFP criminal decisions today (2):

Patrick Scott Norman v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Tuesday, February 07, 2017
Posted to Ind. App.Ct. Decisions

Monday, February 06, 2017

Ind. Decisions - Transfer list for week ending February 3, 2017

There were no transfer dispositions last week, and hence, there is no transfer list.

Posted by Marcia Oddi on Monday, February 06, 2017
Posted to Indiana Transfer Lists

Ind. Decisions - Tax Court posts two, one from today and one from Friday

In The University of Phoenix, Inc. v. Indiana Department of State Revenue, a 12-page opinion, Judge Wentworth writes:

The University of Phoenix, Inc. has moved to compel the Indiana Department of State Revenue to produce information and documents regarding 1) Section 14 of House Bill 1349 (“H.B. 1349”), 2) the Tax Competitiveness and Simplification Report of September 2014 (the “Report”), and 3) a presentation on the Report (the “Presentation”) as well as to compel the designation of a proper 30(B)(6) witness. Upon review, the Court grants the University’s motion in part and denies it in part.
In Hamilton County Assessor v. Charles E. Duke, an 8-page opinion filed 2/3/17, Judge Wentworth writes:
This case concerns whether the Indiana Board of Tax Review erred when it determined that, for the 2009, 2010, and 2011 tax years (the “years at issue”), Charles E. Duke’s real property qualified for an educational purposes exemption, but did not qualify for a religious purposes exemption. The Court reverses the Indiana Board’s determination on the educational purposes exemption, and affirms its determination on the religious purposes exemption.

Posted by Marcia Oddi on Monday, February 06, 2017
Posted to Ind. Tax Ct. Decisions

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

For publication opinions today (2):

In Jessica Szamocki v. Anonymous Doctor and Anonymous Group, and Stephen Robertson, Commissioner, Indiana Department of Insurance, a 16-page opinion, Judge Crone writes:

Jessica Szamocki filed a proposed medical malpractice complaint against Anonymous Doctor and Anonymous Group (collectively “A.D.”). A.D. sought summary judgment on the ground that Szamocki’s complaint was barred by the applicable statute of limitations. Following a hearing, the trial court granted summary judgment in favor of A.D. Szamocki now appeals. Concluding that Szamocki’s claim is indeed time-barred, we affirm summary judgment in favor of A.D. * * *

The undisputed facts show that Szamocki was expressly told by doctors on April 9, 2013, and September 17, 2014, and perhaps additional dates in between, that there was a reasonable possibility that mesalamine prescribed by A.D. may be the cause of her renal failure. On those dates, Szamocki possessed enough information that, in the exercise of reasonable diligence, should have led to the discovery of the alleged malpractice. The record simply does not support Szamocki’s contrary assertions. Szamocki has asserted no fraudulent concealment, incapacity or obstacle to initiating litigation, or any other facts that would suggest that it was not reasonably possible for her to file her claim at the very latest by December 10, 2014.6 Accordingly, Szamocki’s claim is time-barred, and we affirm the trial court’s entry of summary judgment in favor of A.D.

In State of Indiana v. James Parrott, a 17-page opinion, Judge Crone writes:
A police officer detected a strong odor of raw marijuana emanating from James Parrott’s vehicle during a traffic stop. The officer had Parrott exit the vehicle, handcuffed him, searched him, and found raw marijuana and other contraband in his pockets. The State charged Parrot with marijuana possession and other crimes. Parrott filed a motion to suppress the evidence seized during the search, arguing that the officer did not have probable cause to conduct a warrantless search because the officer did not smell marijuana on him after he exited the vehicle. The trial court granted Parrott’s motion. The State did not dismiss the charges and appealed the ruling.

Parrott filed a motion to dismiss the State’s appeal, arguing that the State was required to dismiss the charges before it could appeal the suppression order. Because the ultimate effect of the order is to preclude further prosecution of the drug-related charges, at a minimum, we deny Parrott’s motion to dismiss.

The State argues that the trial court erred in granting Parrott’s motion to dismiss, asserting that the officer had probable cause to arrest Parrott based on the strong odor of raw marijuana emanating from his vehicle and conduct a warrantless search incident to that arrest. We agree and therefore reverse and remand for further proceedings.

NFP civil decisions today (0):

NFP criminal decisions today (3):

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

Kevin D. Speer v. State of Indiana (mem. dec.)

Brian Walton v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, February 06, 2017
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: House adopts HB 1036, intended to replace Marion County judicial selection law declared unconstitutional by the 7th Circuit

Updating this ILB post from Feb. 2nd, Fatima Hussein reports today for the Indianapolis Star:

The previous system for selecting judges in Marion County was so flawed a federal judge threw it out. Now some say the proposed solution is little better.

Black legislative leaders say House Bill 1036, which revises the way Marion County's 36 Superior Court judges are selected, would disenfranchise voters in largely black and Democratic Marion County, and limit diversity on the bench.

Under the bill, a merit-selection committee would nominate judges to be chosen by the governor, duplicating the process used in appellate courts. It has been received with equal amounts of praise, criticism and cautious approval in Indiana's legal community. * * *

Supporters of House Bill 1036 say it's a well-balanced approach that gives voters, party leaders and members of the legal community some control over the judicial selection process. * * *

Under the proposed system, a 14-member Marion County Judicial Selection Committee would consider applicants for a vacancy and recommend three finalists to the governor, who would select the judge.

Appointments to the selection committee would be made by Republican and Democratic legislative leaders, various law groups and political party chairs. A member of the Indiana Supreme Court and the Court of Appeals also would be on the committee.

While the selection process relies on the committee and the governor, voters will have a role in retention elections every six years. Additionally, the committee will be involved in reviewing judges who seek retention and can make informed recommendations against retention when appropriate.

The bill, co-authored by Rep. Brian Bosma, Rep. David Frizzell and Rep. Edward DeLaney, passed the Courts and Criminal Code Committee last week, ans passed the House by a vote of 68-to-29.

The proposed bill comes after a federal judge ruled that the current judicial election system is unconstitutional. The 7th U.S. Circuit Court of Appeals upheld that ruling. * * *

Under the previous selection system, the two major political parties conducted primary elections in which they nominated candidates for the exact number of judicial seats to be filled – split evenly between Democrats and Republicans. By contributing money to their respective parties, the judicial candidates had a much better chance of securing an endorsement and winning a judicial seat in the election.

There are concerns, however, that the proposed selection process may not be fair to Democrats when a Republican governor will ultimately sign off on committee-chosen judges.

There are also considerations of a potential lack of diversity in county courts as well as potential voter disenfranchisement. * * *

Marion County Prosecutor Terry Curry said he has "mixed feelings" about the bill but believes it could face a legal challenge.

Curry says HB 1036 would make Marion County the fifth county to adopt merit selection. The four other counties — Allen, Lake, St. Joseph and Vanderburgh — all have large numbers of minorities, as well as Democrats.

The other counties, many with fewer minorities and Democrats, elect their judges.

​"I want quality judges, period," Curry said. "However, if it were thrown into an election, Democrats would win all of the seats (in Marion County) – there could very well be a challenge."

Like Curry, others expressed mixed feelings. "I think it’s a good but not perfect bill," said Joel Schumm, a professor at Indiana University Robert H. McKinney School of Law.

Schumm argues that the proposed bill addresses the need for diversity. "Unlike the statutes for some other selection processes, it expressly requires the committee to consider 'whether the candidate reflects the diversity and makeup of Marion County.'”

Schumm said most of the process is public and transparent and has worked in selecting judges for the appellate and Supreme Court as well as judges in Lake and St. Joseph counties. "The approach is much better than the alternatives," Schumm said. * * *

Julia Vaughn, policy director for Common Cause Indiana, said while she supports HB 1036, it could go further to support diversity on the bench.

"I am disappointed that the bill isn't stronger in ensuring that the selection committee itself should be diverse," she told IndyStar. "We do have reservations, because we need to make sure women and minority groups are adequately represented on the bench."

She wouldn't go so far as to leave judgeship completely up to voters.

"Judges shouldn't be accountable to voters – certainly they should undergo retention votes," she said.

She added that overall she is in favor of the proposed system, "and it's probably the best we can expect out of the legislature we have."

Posted by Marcia Oddi on Monday, February 06, 2017
Posted to Indiana Courts

Ind. Gov't. - "There are three bills in the House and Senate that would restrict womens' access to abortion"

Although House Bill 1134, sponsored by Goshen Republican Rep. Curt Nisly, which would totally ban abortion, will not get a hearing this session, Fatima Hussein of the Indianapolis Star reports that three other abortion-related bills are pending:

Currently in Indiana there are three bills in the House and Senate that would restrict womens' access to abortion:

Senate Bill 404, authored by Sens. Erin Houchin, Travis Holdman and Jeff Raatz, would impose restrictions on minors seeking abortions by removing, in some cases, a judge’s ability to ensure their privacy. Along with requiring parental consent, the bill would make it a criminal offense for a physician or a religious leader to counsel a minor on whether or not to have an abortion.

House Bill 1128, authored by Rep. Ronald Bacon, would require that a pregnant woman be informed orally and in writing before a chemical abortion that the procedure could be reversed or stopped.

Senate Bill 118, authored by Sens. Dennis Kruse and Liz Brown, would require a mandatory ultrasound before an abortion, and, notably, the bill would require the pregnant woman to view the fetal ultrasound imaging and listen to fetal sounds. Currently women can opt out of this procedure.

Opponents say the bills serve no medical purpose and their sole purpose is to restrict women's access to abortion. "These bills are so unnecessary and don't contribute to the safety of the procedure," said Sue Ellen Braunlin, co-director of the Indiana Religious Coalition for Reproductive Justice.

"The bill affecting minors is really worrisome," Braunlin said, because it removes an opportunity for judges to waive parental notice for young women who are at-risk in their own home.

Posted by Marcia Oddi on Monday, February 06, 2017
Posted to Indiana Government

Ind. Gov't. - "Notre Dame remains exempt from records law: PAC declines to rule on complaints filed against Notre Dame"

Margaret Fosmoe reported Feb. 3 in the South Bend Tribune in a long story that builds on her Nov. 17, 2016 story that was headed "Could there be more to Notre Dame police records issue? Legislators inadvertently make campus police subject to public records law."

Here are some quotes from the long Feb. 3rd (Friday) story:

Police departments at the University of Notre Dame and other private universities in the state will remain exempt from Indiana's public records law for the foreseeable future.

With Indiana lawmakers showing no inclination to introduce legislation that would require private university police to follow the same public records laws as city, county and state police agencies, that situation is unlikely to change.

In response to a complaint filed against Notre Dame by the South Bend Tribune, Indiana Public Access Counselor Luke Britt this week deferred to the General Assembly. * * *

Notre Dame in November won a widely watched court case filed by ESPN seeking access to records of the campus police department related to cases involving student athletes. The Notre Dame Security Police department was not a "public agency" under Indiana law and did not have to provide information about investigations the sports media company requested in 2014, the Indiana Supreme Court ruled.

In an ironic twist, in what may have been an inadvertent action, the Indiana General Assembly last winter changed the state's Access to Public Records Act definition of a "public agency" to include a private university police department. The wording was included in HEA 1019, which concerned public access to body cameras worn by police officers.

To test that law, the South Bend Tribune in November filed a request with Notre Dame seeking basic details about four cases reported to NDSP between July 1 and Nov. 21, 2016. The four cases, all listed on the online campus crime log but with no details provided, included a domestic battery case, a rape reported in a men's residence hall, an arrest for disorderly conduct and a motor vehicle theft at the Morris Inn.

Notre Dame spokesman Dennis Brown rejected the Tribune's request, saying in a written reply that the university is not a public agency and not subject to requests for public records. To support that argument, he cited the Indiana Supreme Court ruling in the ESPN vs. Notre Dame case.

Brown referred to the apparently inadvertent change in state law making private university police subject to APRA as a "technical printing error" that would be quickly reversed when the 2017 General Assembly convened and would be retroactive to July 1, 2016.

After Notre Dame's denial, the Tribune filed a formal complaint with the PAC office, requesting a formal opinion on whether the university was required to adhere to the new wording of the state law defining private university police departments as public agencies. * * *

[Britt] noted that his office became aware of the changed "public agency" definition included in HEA 1019 in July, after which he began advising the public that the amended APRA had the full force of law.

Shortly thereafter, the Indiana Legislative Council began taking steps to declare the changed definition a "technical error," to be reversed in the 2017 session. The error is included in HB 1181, the 2017 technical corrections bill. That measure has been referred to the judiciary committee, but has not yet been passed.

The question becomes whether the legislative mistake amounts to good law and subjects NDSP to public access consideration, specifically to providing the same level of details in its crime log as other Indiana police agencies, Britt wrote.

"I hesitate to to categorize it as a simple scrivener's error, however, it appears to be done in error," Britt wrote. [ILB emphasis]

"Given the likelihood of the law's amendment and the clear intent of the General Assembly to strike it from Code, I will defer to the General Assembly on the matter. If the revision passes as proposed, the issue is moot. If the bill is altered and the APRA is not changed, I will revisit this matter in the future," he concluded.

ILB: Some comments:

Posted by Marcia Oddi on Monday, February 06, 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 2/6/17):

Next week's oral arguments before the Supreme Court (week of 2/13/17):

Thursday, February 16

Webcasts of Supreme Court oral arguments are available here.

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

Next week's oral arguments before the Court of Appeals (week of 2/13/17):

Wednesday, February 15

Thursday, February 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, February 06, 2017
Posted to Upcoming Oral Arguments

Friday, February 03, 2017

Courts - "Federal Court Basically Says It's Okay To Copyright Parts Of Our Laws"

That is the headline to this important, new, lengthy post in TechDirt, that begins:

For many years, we've written about Carl Malamud and his non-profit organization Public.Resource.org, which goes to great lengths to make sure that the law and other government documents are widely available to the public. While he's gotten lots of attention for battling states over their claims to hold a copyright in the law, perhaps his biggest fight has been over the question of whether or not private standards that are "incorporated by reference" into the law, are still covered by copyright. And, unfortunately, the federal district court in Washington DC has just ruled against him (link to the opinion), and effectively said it's okay to lock up some important elements of the law with copyright. This is bad news.

Some background: as you probably know, there are tons of standards bodies out there who create various standards. Most techies are quite familiar with various technology standards, developed by various groups. But standards obviously go way beyond just the tech industry. Think: building codes for plumbers and electricians. These are often developed by independent, private bodies. Of course, you may also realize that some of these standards are in the law as well. These are generally known as "incorporated by reference." That's just a fancy way of saying that a private group created a standard and then lawmakers put into the law "this thing we're regulating needs to meet those standards." So, for example, fire codes may be developed by a private body, but then governments say that any building has to meet those standards. Voila: those standards are "incorporated (into the law) by reference."

The question, though, is how accessible are these standards? Many of the standards bodies that create those standards like to sell them. That's often how they make their money. But that seems to be in fairly dire conflict with the idea that the law should be publicly accessible. It's fairly difficult to argue that the rule of law is paramount when you can't even see the law without having to buy a bunch of expensive standards. To deal with this, many regulators and standards bodies have come up with awful hedges -- which basically say that any such standard incorporated by reference must be "available to the public," but they allow that availability to be insanely limited. So, for example, the EPA basically says, sure, you can see all of the standards, if you trek to DC and go to a special reading room (or a few other limited places)

The ILB has many posts on this topic, see for instance this one from May 22, 2013, and this lengthy post from August 7, 2008, headed "Indiana building codes, part of the Indiana Administrative Code, are copyrighted and not available online."

Posted by Marcia Oddi on Friday, February 03, 2017
Posted to Courts in general

Ind. Decisions - 7th Circuit decides two Indiana cases today

In John Jones Bey v. State of Indiana (SD Ind., Pratt), a 5-page opinion, Judge Posner writes:

John Jones Bey, who describes himself as an “Aboriginal Indigenous Moorish-American,” filed in the district court what he labeled a “Writ of Mandamus,” seeking to enjoin state and county officials from taxing real estate that he owns in Marion County, Indiana. He also asked that the defendant officials be ordered to refund the taxes that he’d paid and to compensate him for their alleged wrongs. He asked the district court to award him $11.5 billion. The court refused, and granted the defendants’ motions to dismiss, precipitating this appeal.

Bey says he’s a “sovereign citizen” and therefore can’t lawfully be taxed by Indiana or its subdivisions in the absence of a contract between them and him. We have repeatedly rejected such claims. We do so in this case as well, and thus affirm the district court. [ILB: cites omitted] * * *

But we want to take this opportunity to examine the rights asserted, in this as in the other cases we’ve cited, by persons describing themselves as sovereign citizens by virtue of their alleged Moorish origin. Most of them are African Americans who belong to the Moorish Science Temple of America (MSTA) and claim to be descendants of the Moors of northern Africa, though they are not; Moors are of mixed Berber and Arab descent rather than being African American in the usual sense of being descended from black Africans. * * *

Although we have discussed the MSTA at some length, our aim was to introduce readers who may not be familiar with the “sovereign citizen” movement to its principal institutional establishment. We do not mean to task the district judges of this circuit with having to delve into the history of every particular organization involved in every case before them. Often the organization either played no significant role in the events leading up to the case or if it did, nevertheless it was an organization already well known to the court. The unusual feature of this case is that the sovereign-citizen movement and its institutions, such as MSTA, are at once sources of difficult litigation and not well known outside the sovereign-citizen movement.

The judgment of the district court is affirmed.

In USA v. Abel Covarrubias (SD Ind., Pratt), a 6-page, per curiam opinion, the Court writes:
Abel Covarrubias was convicted by a jury of possessing with intent to distribute 50 grams or more of methamphetamine, and conspiring to commit this crime. On appeal he challenges the denial of his motion to suppress drugs found in a car being delivered to him from across the country. We affirm the judgment because the district court correctly decided that Covarrubias lacked standing to contest the admission of the drugs into evidence. * * *

Covarrubias’s argument is irrelevant because he did not have any expectation of privacy in the car once the car hauler received it. See Crowder, 588 F.3d at 934. In any event his post-Miranda statements to law enforcement are admissible because substantial evidence demonstrates that he understands and speaks English: five law enforcement officers and a paramedic testified that he understands and speaks English, he declined an interpreter when he was arrested, and he sent text messages from his cell phone in English.

Posted by Marcia Oddi on Friday, February 03, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (2):

In Richelle Marie Whitenack v. State of Indiana, an 8-page opinion, Judge Bradford writes:

On November 17, 2015, Gail Whitenack (“Gail”) searched her step-daughter Appellant-Defendant Richelle Marie Whitenack’s vehicle while it was in Gail’s driveway because Gail was concerned that Whitenack was using drugs. During her search, Gail found items that suggested that Whitenack was, in fact, using drugs. Gail called the police and told them what she had found. The police department subsequently issued a tip to its deputies which included a description of Whitenack’s vehicle and the suspected drug related items.

Later that same day, Whitenack was pulled over for speeding and crossing the center line twice. The deputy radioed his location and a description of the vehicle when he realized that the vehicle he had pulled over matched the vehicle in the tip. One or two minutes later, the department’s K9 officer arrived to the scene with his dog. The K9 officer and his dog walked around the vehicle while the deputy finished writing Whitenack’s ticket. The dog indicated the presence of drugs in the vehicle which prompted the deputy and K9 officer to search the vehicle. * * *

On appeal, Whitenack challenges the trial court’s admission of evidence during her bench trial. Specifically, Whitenack raises the following restated issue: whether the trial court abused its discretion when it admitted evidence found in Whitenack’s vehicle during a valid traffic stop. Because the trial court did not abuse its discretion when it admitted evidence found by a K9 officer and his dog during a valid traffic stop, we affirm. * * *

[T]he evidence obtained from Whitenack’s vehicle by the deputies during the traffic stop was the product of a legal search and the trial court did not abuse its discretion when it admitted such evidence at trial. Based upon the above-stated conclusions and evidence in the record, we affirm the trial court’s decision to admit the evidence found during the traffic stop of Whitenack’s vehicle.

In Lonnie L. Burton v. State of Indiana, a 6-page opinion with a pro se appellant, Chief Judge Vaidik writes:
Lonnie L. Burton petitioned to expunge two Class D felony convictions (theft and fraud) pursuant to Indiana Code section 35-38-9-3, and the State moved to dismiss, arguing that Burton is not eligible for expungement because he is a “sex or violent offender” based on other convictions. The trial court granted the State’s motion to dismiss, and Burton appeals. Because the plain language of Section 35-38-9-3(b) provides that a “sex or violent offender” is not eligible for expungement of Class D/Level 6 felonies, we affirm the trial court. * * *

Contrary to how Burton would have the statute read, Section 35-38-9-3(b) does not say that expungement is not available if the conviction sought to be expunged is “_____.” In addition, Section 35-38-9-3(b) provides that expungement of Class D/Level 6 felonies is not available to a “sex or violent offender”; notably, it does not say a “sex or violent offense.” This is critical because a “sex or violent offender” has a very specific meaning. Because Burton is a “sex or violent offender” as defined by Section 11-8-8-5, he is ineligible for expungement of his Class D felonies under Section 35-38-9-3.2

We therefore affirm the trial court’s dismissal of his petition.

NFP civil decisions today (3):

Kansas City Services, Inc. v. Bryan Connan, Julie Connan, and Connan's Zionsville Investors, LLC (mem. dec.)

In the Matter of the Adoption of B.A.M.: G.M., Jr. v. D.E. (mem. dec.)

Margaret J. Wilkinson v. Ivan H. Kuehn and Micki L. Kuehn (mem. dec)

NFP criminal decisions today (4):

Shannon Randolph v. State of Indiana (mem. dec.)

Breasia Sawyer v. State of Indiana (mem. dec,)

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

Anthony W. Brown v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, February 03, 2017
Posted to Ind. App.Ct. Decisions

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

Updating this ILB post from Jan. 27th, Patrick Marley of the Milwaukee Journal-Sentinel reports today in a lengthy story:

MADISON – Republican lawmakers plan to approve behind closed doors giving a blank check to hire two law firms in a legal battle over redrawing legislative maps, adding to a bill that has already topped $2 million.

One of the firms the lawmakers plan to hire is a high-powered legal operation where former U.S. Solicitor General Paul Clement is partner. Clement, who has Wisconsin roots, charges more than $1,300 an hour, according to published reports.

Legislative aides would not say if Clement will be on the legal them they are assembling.

The legislators on deck to approve the plan don't know how much hiring the firms will cost or even their hourly rates. Those details will be ironed out after the votes, said Myranda Tanck, a spokeswoman for Senate Majority Leader Scott Fitzgerald (R-Juneau).

Hiring the firms is set to be approved Thursday by two committees. No further action will be needed. * * *

“It’s outrageous that the Republican leadership won’t specify how much of our taxpayer dollars they are willing to waste by challenging the ruling of the federal judges,” said a statement from Matt Rothschild, executive director of the Wisconsin Democracy Campaign.

Republicans are looking to hire Clement's international firm, Kirkland & Ellis, as well as Bell Giftos St. John. The second firm is based in Madison and the home of former state Deputy Attorney General Kevin St. John.

On average, partners at Kirkland charge $825 an hour, according to a review by the National Law Journal.

The plan also gives Fitzgerald and Assembly Speaker Robin Vos (R-Rochester) the power to hire any other firms they deem necessary to work on redistricting. No one else would have any say in how much they're paid.

A panel of three federal judges in the fall found maps Republicans drew in 2011 were so favorable to their party that they violated the voting rights of Democrats. Last month, the judges ordered them to establish new maps by November.

Republican Attorney General Brad Schimel plans to appeal to the U.S. Supreme Court. Republicans who control the Legislature plan to hire two law firms to supply friend-of-the-court briefs backing the appeal, said Tanck.

Posted by Marcia Oddi on Friday, February 03, 2017
Posted to Courts in general

Ind. Gov't - Clark County has trouble filling County Council seat

On Feb. 1, Elizabeth Beilman of the Jeffersonville News & Tribune reported in a long story that began:

Former State Superintendent of Public Instruction and Clark County native Tony Bennett is now a member of the Clark County Council.

Bennett was one of two Republicans caucused onto the board Wednesday evening in an unexpected move. But Bennett won't be filling the seat vacated by Mike Popplewell, who resigned amid misdemeanor charges.

Instead, Bennett will represent District 2 — and Brian Lenfert, sitting District 2 councilman, was elected to fill Popplewell's at-large seat.

"Our family's roots are in Clark County," Bennett said. "When my family and I moved back to the area, it was an opportunity I saw."

Late yesterday, however, reporter Beilman wrote:
Former Indiana Superintendent of Public Instruction Tony Bennett won't be serving on the Clark County Council after all, as he doesn't meet the residency requirements to hold office.

State law requires office holders must have lived in the district they represent for at least six months and within the county for at least a year.

The Clark County Assessor's office recorded Bennett became the owner of his Jeffersonville home Sept. 8, which doesn't even meet the six-month requirement to live within the council district. His former home in New Albany was transferred to a new owner Aug. 29.

Bennett confirmed Thursday he has only lived in Clark County about six months, having previously lived in Floyd County.

"I'm not aware of any [such law]," he told the News and Tribune when informed by the newspaper of the residency requirement. "Frankly, I would assume [Clark County GOP Chairman Jamey Noel] would know that." * * *

Attorney Larry Wilder, often hired to represent local Republicans, took fault.

"Sometimes when you have lawyers that don't read every word in a statute, they give bad advice," Wilder said. "Tony and I talked about the opening, and I spoke with [Noel] as well, and they both asked a question about eligibility to serve and quite honestly, I made a mistake."

Posted by Marcia Oddi on Friday, February 03, 2017
Posted to Indiana Government

Thursday, February 02, 2017

Ind. Courts - House adopts HB 1036, intended to replace Marion County judicial selection law declared unconstitutional by the 7th Circuit

HB 1036, the Marion County judicial selection bill, has passed the House. Here is the bill synopsis, which hits some of the highlights:

Provides for the selection of Marion superior court (court) judges.

Establishes the 14 member Marion County judicial selection committee

[What happens when there is a vacancy?]

Provides that, when the committee learns of a vacancy on the court, the committee follows certain procedures that conclude in the committee sending the names of three nominees to the governor.

Requires the governor to appoint one of the nominees as judge to fill the vacancy.

[What happens when the currently elected judges' terms end?]

Provides that, at the end of a judge's term on the court, the judge may have the question of the judge's retention on the court placed on the general election ballot.

Provides that, before a judge may stand for retention, the judge must appear before the committee to allow the committee to issue a recommendation to voters concerning the judge's qualifications and suitability to continue to hold judicial office.

Requires that the judge's retention on the court must be approved or rejected by the electorate of Marion County.

ILB readers will recall that in September of 2015 the 7th Circuit threw out as unconstitutional the existing statute concerning the selection of Marion County judges. From the ACLU news release at the time:
The lawsuit, brought by Common Cause Indiana represented by the American Civil Liberties Union of Indiana, challenged the constitutionality of Indiana Code § 33-33-49-13, which results in each major party nominating candidates for only one half of judicial vacancies.

The statute effectively removed any choice from voters and rendered the election of judges a mere formality. Voters in Marion County who did not cast a ballot in the primary election had absolutely no say in electing judges. Even people who did vote in the primary election had a say in only half of the judgeships. * * *

The Seventh Circuit ruling held that: "When an election law reduces or forecloses the opportunity for electoral choice, it restricts a market where a voter might effectively and meaningfully exercise his choice between competing candidates, and thus severely burdens the right to vote." The Court concluded that this severe burden was not justified.

More: Here is IBJ coverage by Hayleigh Colombo, headed "House approves merit-selection system for Marion County judges."

Here is the Indianapolis Star coverage
, by Fatima Hussein.

Posted by Marcia Oddi on Thursday, February 02, 2017
Posted to Indiana Courts | Indiana Government | Indiana Law

Courts - "Cal's top court to decide whether emails and texts sent on personal devices are public record" and much more!

Maura Dolan has the story today in the LA Times. It begins:

Community activist Ted Smith suspected backroom dealing at San Jose City Hall.

San Jose’s former mayor was asking the City Council for government money to help develop a project downtown. Smith filed a public records request for all communications related to the development from elected officials and their staff.

The city responded, providing some records but maintaining that emails, texts and other communications sent by government employees on their private devices were not covered by the California Public Records Act.

Nearly eight years later, the downtown project is complete, helped in part by city funds approved by elected San Jose officials. Smith never received the communications he sought.

But his request is likely to produce new rules to deter government officials from using private phones and computers to keep their communications secret.

During a hearing last month, the California Supreme Court appeared ready to rule that government business conducted on private telephones and computers must be made public.

The quandary expressed by justices was how to fashion a rule to protect the privacy of government employees and still ensure that public business was open to inspection. * * *

In examining Smith’s case, the justices of the state’s top court grappled with several questions: How can government ensure employees retain business-related emails and texts on their private devices? What happens if the communications have been deleted?

Will a new rule make it impossible for employees to discuss their work online for fear it will become a public record? Would a message to a friend or family member about a boss, a work project or colleagues have to be disclosed because the topic involved public business? * * *

Karl Olson, representing the news media, including The Times, argued that many public officials are deliberately using personal computers and telephones to conceal their communications. The practice is widespread, Olson wrote.

The examples Olson cited included Hillary Clinton’s use of a private account while secretary of state, the disclosure of emails that showed aides to New Jersey Gov. Chris Christie created a mammoth traffic jam to punish a Christie foe, and a host of other cases involving public officials using private email addresses in Los Angeles, San Diego, San Francisco and Sacramento.

Without conceding that public officials are using private accounts to evade scrutiny, San Jose’s Frimann said making those communications public wouldn’t necessarily provide the public with more information.

“If private accounts become public records, people will go to phones or meetings” to protect confidentiality, the assistant city attorney said.

There is much more in the long story. Here is the webcast of the oral argument in the appeal.

Making this story particularly relevant are several other stories the ILB has seen this morning:

Posted by Marcia Oddi on Thursday, February 02, 2017
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 0 NFP memorandum decision(s))

For publication opinions today (1):

In Rachel Neal v. IAB Financial Bank, f/k/a Grabill Bank, a 16-page opinion, Judge May writes:

Rachel Neal appeals a summary judgment in favor of IAB Financial Bank (“the Bank”). She argues the trial court erred in finding the Bank owed no duty toward her. We affirm. * * *

Neal sued the Bank, alleging she would not have been injured in the accident but for the Bank employees’ negligent act of helping Biddle change his tire so he could get back on the road. She claimed the Bank assumed a duty of care toward her and other motorists when its employees helped change the tire. The trial court granted the Bank’s motion for summary judgment. It determined that under Indiana law, a party cannot be held liable for a drunk driver causing injuries to a third party unless it furnished the drunk driver alcohol, maintained a legal right to control the vehicle, or had a special relationship with the other parties. * * *

To prevail on a claim of negligence, Neal must demonstrate (1) the Bank owed a duty to Neal; (2) the Bank breached that duty by allowing its conduct to fall below the applicable standard of care; and (3) the Bank’s breach of duty proximately caused a compensable injury to Neal. Absent a duty, there can be no breach. The trial court found the Bank had no duty to Neal. * * *

To the extent Neal argues there is a general duty “not to assist an intoxicated person in driving,” we agree. We held so in Buchanan. Indeed, the Seventh Circuit Court of Appeals noted in its analysis of Buchanan, the consequences of Vowell’s decision to assist her daughter in driving drunk were “predictably tragic.” Spierer v. Rossman, 798 F.3d 502, 512 (7th Cir. 2015). But for reasons already discussed above, the facts here are distinguishable from those in Buchanan. Thus, we cannot say the harm to Neal was foreseeable. * * *

Were we to impose a duty on all individuals to consider the potential risk of harm to third persons before helping motorists in peril, it would require those individuals to weigh their personal risk of exposure to liability to third persons injured by the motorist against the motorist’s immediate need for assistance. We refuse to impose such a duty.

In so holding, we do not unequivocally suggest actors who help motorists never have a duty toward unknown third persons foreseeably at risk of injury resulting from negligent conduct of the driver. But where, like here, there was no prior relationship between the Bank and either Biddle or Neal, nor evidence of an actor’s knowledge of the motorist’s intoxication, imposing a duty on Good Samaritans that could discourage providing assistance to motorists in need of aid is contrary to public policy. As the Court of Appeals for the Seventh Circuit recently noted, “[t]here is simply no case where Indiana courts have recognized responsibility on the part of a person to ensure the safety of intoxicated persons with whom they have unexpectedly come into contact.” Spierer, 798 F.3d at 513. We decline to recognize such a duty today.

Conclusion. Because all three of the Webb factors lean against imposing a duty here, the trial court did not err in concluding the Bank owed no duty to Neal. Accordingly, we affirm the trial court’s summary judgment in favor of the Bank.

ILB: The opinion includes lengthy footnotes.

NFP civil decisions today (0):

NFP criminal decisions today (0):

Posted by Marcia Oddi on Thursday, February 02, 2017
Posted to Ind. App.Ct. Decisions

Courts - "Can an algorithm erase bias in Cook County bond courts?"

Adding to a list of ILB posts on the use by the courts of predictive algorithms, here is a lengthy Oct. 26, 2016 story by Maya Dukmasova, that appeared in the Chicago Reader. It begins:

On a Tuesday morning in mid-September, new arrestees approached a glass-enclosed room in the basement of the Cook County Jail. One by one, they sat down on a stool, opposite a court employee at a computer on the other side of the glass. Over the next 30 minutes to an hour, their past criminal record and history of court appearances would be scrutinized in detail.

This is a computerized risk-assessment test, and in the end, each arrestee was assigned a score rating the likelihood that he or she would show up for his or her next court date, and the likelihood that he or she would commit a new offense if released on bail.
The Public Safety Assessment is the latest change to bond court procedures in Cook County. Previously, court staffers used paper forms to calculate whether a defendant was a flight risk by asking questions about the person's residence, arrest history, employment, and drug use. Unemployed, unstably housed people with drug abuse issues were rated more of a flight risk—an evaluation experts consider to be unfairly biased against people of color and the poor. In contrast, the PSA, fully implemented in central bond court proceedings as of last spring, relies solely on documented evidence of failures to appear and past convictions.

The PSA represents a growing trend of court systems around the country using computerized risk-assessment to inform bond-setting and, in some places, even sentencing decisions. Some experts are welcoming the PSA as a tool for potentially counteracting racial and class bias in judges' bond-setting—a bias that's seen as contributing to the disproportionate pre-trial incarceration of poor, African-American men in the Cook County jail. But critics are concerned that bias persists even in the PSA's supposedly neutral algorithm. And the whole debate is potentially moot in the face of a larger question: are Cook County judges even paying attention to the PSA's scores?

ILB: Some readers may recall that the Cook County Bond Court was featured in several 2015 episodes of The Good Wife, including the show's Season 7 premiere.

Posted by Marcia Oddi on Thursday, February 02, 2017
Posted to Courts in general

Ind. Decisions - 7th Circuit "strikes down part of Indiana vaping law"

A few quotes from the final, Jan. 31st version of the Indianapolis Star story, reported by Tim Evans , Tony Cook and Mark Alesia, on the Jan. 30th 7th Circuit opinion by Judge Hamilton in Legato Vapors, LLC v. David Cook:

INDIANAPOLIS — A federal court on Monday struck down a major portion of Indiana’s restrictive vaping law, which created a monopoly for one security firm and sparked an FBI probe.

A three judge-panel of the 7th U.S. Circuit Court of Appeals in Chicago ruled that the law’s strict requirements guiding the production of the nicotine-laced liquid consumed through vaping imposed “unprecedented” and “extraordinary” regulation for out-of-state companies. The ruling effectively ends the stranglehold that Lafayette-based security company Mulhaupt’s Inc. had on deciding who could enter the Indiana e-liquids market, although it applies only to out-of-state manufacturers.

The Legislature first approved Indiana’s vaping law in 2015, ostensibly to create safety standards for “e-liquid” production. The law was amended last year in a way that effectively gave Mulhaupt’s sole discretion to decide who could be certified to produce “e-liquid” sold in Indiana. The law guided everything from requirements for sinks and cleaning products to the details of contracts with outside security firms and the qualifications of those firms’ personnel, the judges wrote.

The appeals court found that the restrictions violated the U.S. Constitution’s commerce clause and were “akin to telling out-of-state communities how to run their recycling programs.”

“At the most basic level, one might wonder why Indiana cares,” the judges wrote, noting that the law’s “astoundingly specific” provisions “raise still more questions that go well beyond the Commerce Clause.” * * *

When the law went into effect, it drew the attention of the FBI, which questioned a number of people connected to it. Those who have been interviewed said the FBI asked who was involved, what their motivations were for supporting or opposing the law and whether they knew of anyone who was offered anything in exchange for their support.

Since then, leaders in the GOP-controlled Statehouse have pledged an overhaul.

The federal appeals court said the law “looks very much like a legislative grant of a monopoly to one favored in-state company in the security business.”

Posted by Marcia Oddi on Thursday, February 02, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Yet another 7th Cir. opinion yesterday, this one on Ind. Nonprofit Corp. Act of 1991

In Richard Doermer v. Kathryn Callen (ND Ind., Van Bokkelen), a 22-page opinion, Judge Hamilton writes:

This case poses several questions under the Indiana Nonprofit Corporation Act of 1991 about the governance of nonprofit corporations in Indiana. The case pits brother against sister in a long-running dispute over control of a small family foundation established by their parents. Plaintiff Richard Doermer is a member of the board of directors of the Doermer Family Foundation, Inc. (“the Corporation”). He asserts claims in his individual capacity and derivatively on behalf of the Corporation. The defendants include his fellow board members Kathryn Callen (his sister), John Callen (his nephew), and Phyllis Alberts. Richard also named as a defendant the University of Saint Francis of Fort Wayne, Indiana, Inc. Richard seeks injunctive relief against all other board members and a money judgment for the Corporation against Kathryn and Saint Francis.

The district court granted defendants’ motions to dismiss, and we affirm. Under Indiana law, only a shareholder or member of a corporation may bring a derivative action on the corporation’s behalf. Richard lacks standing to bring a derivative claim because he is neither a shareholder nor a member. In fact, the Corporation’s articles of incorporation provide that it “shall have no members.” Richard’s individual claims for money judgment likewise fail. They are properly understood as belonging to the Corporation (and so derivative in nature). Finally, all of Richard’s individual claims fail as a matter of law on their merits.

Posted by Marcia Oddi on Thursday, February 02, 2017
Posted to Ind. (7th Cir.) Decisions

Wednesday, February 01, 2017

Ind. Decisions - Intro to 7th Circuit OSHA case out of Illinois

In Dana Container, Inc. v. Secretary of Labor (OSHA order), a 12-page opinion, Chief Judge Wood begins:

It is not hard to find people who complain about government regulations, but the regulations often exist because people do not take optimal precautions on a voluntary basis. This case illustrates that problem. It arose after toxic fumes in a large container knocked out a man who was working inside it. Fortunately, he was rescued by the local fire department, but his employer, Dana Container, wound up fighting citations from the Occupational Safety and Health Administration (OSHA). After an administrative law judge (ALJ) and the Occupational Safety and Health Review Com‐ mission upheld OSHA’s actions, Dana turned to this Court. Because Dana has not provided a compelling reason to over‐ turn the Commission’s determinations, we deny its petition for review.  

Posted by Marcia Oddi on Wednesday, February 01, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today (2-1): Dissent - "As a result of today’s decision, the Indiana district courts will be deluged with defaulted Strickland claims"

In Dentrell Brown v. Richard Brown (SD Ind., Magnus-Stinson), a 2-1, 35-page opinion, Judge Hamilton writes:

Petitioner Dentrell Brown and his co-defendant Joshua Love were convicted of murder in a joint trial in an Indiana court. After exhausting state court remedies, Brown filed a federal habeas corpus petition under 28 U.S.C. § 2254. He claims he was denied effective assistance of counsel when his lawyer failed to insist that the judge give the limiting instruction required when evidence of a co-defendant’s out-of-court confession is introduced in a joint trial. See Bruton v. United States, 391 U.S. 123 (1968) (protecting codefendant from testimonial confessions of other co-defendants). The district court denied the habeas petition, finding that Brown had procedurally defaulted this claim for ineffective assistance of trial counsel by failing to assert it in state court so that federal review is barred. Brown has appealed.

On the issue of procedural default, we hold that the form of “cause” found in Martinez v. Ryan, 566 U.S. —, 132 S. Ct. 1309 (2012), and expanded in Trevino v. Thaler, 569 U.S. —, 133 S. Ct. 1911 (2013), is available to federal habeas corpus petitioners in Indiana who have substantial claims for ineffective assistance of trial counsel that have been procedurally defaulted in state post-conviction proceedings by lack of any counsel or lack of effective counsel. Brown is entitled to an opportunity to overcome procedural default of his claim for ineffective assistance of trial counsel for failure to request a limiting instruction if he can both demonstrate ineffective assistance of post-conviction counsel and assert a substantial claim of ineffective assistance of trial counsel. We conclude that he is entitled to an evidentiary hearing. * * *

In sum, the Martinez-Trevino doctrine applies to Indiana procedures governing ineffective assistance of trial counsel claims. Petitioner Brown has presented evidence of ineffective post-conviction counsel and made a substantial claim of ineffective assistance of trial counsel. Accordingly, we REVERSE the district court’s dismissal of Brown’s petition and REMAND to the district court for an evidentiary hearing on the issue of ineffective assistance of post-conviction counsel. If the district court finds deficient performance by post-conviction counsel, Brown’s default will be excused, and he will be entitled to an evidentiary hearing on the merits in the district court for the underlying claim of ineffective assistance of trial counsel for failure to request a limiting instruction. * * *

[p. 25] SYKES, Circuit Judge, dissenting.
“Federalism and comity principles pervade federal habeas jurisprudence.” Johnson v. Foster, 786 F.3d 501, 504 (7th Cir. 2015). “One of these principles is that ‘in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner’s federal rights.’” Id. (quoting Coleman v. Thompson, 501 U.S. 722, 731 (1991)). The doctrine of procedural default enforces this principle: A federal court will not hear a state prisoner’s habeas claim unless the prisoner has first presented it to the state courts for one full round of review. Id. (citing Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014)). * * *

As a result of today’s decision, the Indiana district courts will be deluged with defaulted Strickland claims. It is an unfortunate reality in postconviction litigation that ordinary claims of trial error can be easily repackaged as claims of ineffective assistance of trial counsel. Now that Indiana prisoners may use Martinez-Trevino, Indiana district judges will routinely have to contend with the two gateway questions that unlock the door to plenary review of defaulted Strickland claims. A federal judge will have to decide—de novo—whether the prisoner’s postconviction counsel was ineffective, and if so, whether the underlying Strickland claim is substantial. An affirmative answer means full federal review of the defaulted claim unburdened by AEDPA’s deferential standard of review.

This is a serious intrusion on federalism interests. I return to where I started: The “state courts are the principal forum for asserting constitutional challenges to state convictions.” Richter, 562 U.S. at 103. That will no longer be true in Indiana for at least some Strickland claims. After today’s decision, the federal courts, not the state courts, will be the primary forum for more constitutional challenges to state convictions. That result would be unavoidable if Martinez and Trevino inescapably applied. But they do not inescapably apply. I respectfully dissent.

Posted by Marcia Oddi on Wednesday, February 01, 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 Menard, Inc. v. Reba Lane, a 16-page opinion, Judge May writes:

Menard, Inc. (“Menard”) appeals the denial of its motion to set aside the default judgment entered in favor of Reba Lane when Menard failed to appear or defend itself against her personal injury suit. As we conclude the trial court did not abuse its discretion in denying Menard’s motion to set aside the default judgment, we affirm. * * *

Lane attempted service of her complaint and summons in multiple ways, all of which conformed with the requirements of the Indiana Trial Rules. Additionally, Lane’s attorney did not engage in misconduct when she did not notify the two law firms who had represented Menard in the past. Finally, the breakdown in communication between Menard employees regarding the summons and complaint was not excusable neglect. Accordingly, we affirm.

NFP civil decisions today (0):

NFP criminal decisions today (0):

Posted by Marcia Oddi on Wednesday, February 01, 2017
Posted to Ind. App.Ct. Decisions

Law - More on former EPA administrator, Anne Gorsuch Burford

In a post yesterday, I mentioned Anne Gorsuch Burford, mother of the new SCOTUS nominee, Neil Gorsuch. Last evening, NPR's Nina Totenberg quoted from Ms. Burford's July 22, 2004 obituary in the Washington Post, and it is certainly worth a read. Burford took on the assignment in 1982 to serve as the anti-EPA administrator of President Reagan's EPA, and it turned out badly.

Posted by Marcia Oddi on Wednesday, February 01, 2017
Posted to General Law Related

Ind. Decisions - Even more on: Federal district court rules today in complex rights of same-sex couples dispute

Updating this ILB post from July 1, 2016, re the decision by U.S. District Court Judge Tanya Walton Pratt in Henderson v. Adams, and this Aug. 16th update, Stephanie Wang reported yesterday for the Indianapolis Star, in a story headed "State appeals ruling on parental rights for same-sex couples":

The state of Indiana is appealing a federal judge's ruling allowing female same-sex spouses to both be listed on their children's birth certificates.

In June, Judge Tanya Walton Pratt ruled against state laws that allowed for only the birth mother to be listed as a parent on a child's birth certificate, while her spouse had to adopt the child to gain parental rights.

Pratt ordered Indiana to extend the same parental rights to married same-sex couples as it does for married opposite-sex couples, including listing both mothers on a birth certificate.

While the state's appeal of that ruling is pending, same-sex couples will still have their parental rights recognized.

"At this time, our office is merely continuing to defend statutes enacted by the legislature," Indiana Attorney General press secretary Corey Elliot wrote in an email.

Later in the long story:
The state had argued that its laws reflect parenthood by biology or adoption. Parenthood rights, the state said, are not a benefit of marriage.

But the couples said the state was discriminating against same-sex marriages, since opposite-sex parents are treated differently under state laws. The state affords the presumption of parenthood, the lawsuit said, to a man in a heterosexual couple in cases where he may not be the biological father, such as in cases of artificial insemination. But it does not offer the same presumption of parenthood to the wives of birth mothers.

Without those parental rights, women could encounter issues with enrolling their children in school, making medical decisions for their children or listing their children as dependents on insurance policies, the lawsuit said. * * *

The appeal will go through the U.S. Court of Appeals for the Seventh Circuit.

Posted by Marcia Oddi on Wednesday, February 01, 2017
Posted to Ind Fed D.Ct. Decisions