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Wednesday, March 01, 2017

Ind. Courts - Supreme Court to hold oral argument in Lake County March 9

From a news release:

The Indiana Supreme Court will travel to Theodore Roosevelt College and Career Academy in Lake County on Thursday, March 9. The Court will hold oral argument in a civil negligence case. The argument is in the case of Danny Sims v. Andrew Pappas and Melissa Pappas (45S03-1701-CT-26).

Justice Robert D. Rucker graduated from Gary Roosevelt High School in 1964 and went on to a distinguished legal career including practicing as an attorney in Lake County and 26 years as an appellate court judge. He recently announced he will retire in spring 2017. While a specific retirement date is not set, the argument at his former high school will be one of the final arguments he hears as a Supreme Court Justice.

Posted by Marcia Oddi on Wednesday, March 01, 2017
Posted to Upcoming Oral Arguments

Ind. Decisions - More on "COA upholds Rush County wind decision"

Updating this ILB post from Feb. 15th, on the COA opinion Feb. 14 in Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals, et al, Mary Solada and Andrew M. Pendexter of Bingham Greenebaum Doll LLP have posted an analysis titled "Indiana Court Of Appeals Affirms Expanded Authority Of Local Zoning Boards To Interpret Zoning Ordinances."

Posted by Marcia Oddi on Wednesday, March 01, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Law enforcement’s love-hate relationship with social media: Cops and courts examine pros, cons of online platform"

This is a very good, and long story in the Feb. 28th Mt. Vernon Democrat, reported by Rachel Christian. Some quotes:

Social media has changed the way people communicate, share news and stay connected.

It has also had a surprising impact on how law enforcement officials solve crimes.

Last month, two Mount Vernon suspects were arrested in conjunction with three local church break-ins. There were less than 48 hours between when the first burglary report came in to the Posey County Sheriff’s Office and when the arrests were made.

Why was the police’s work so swift? It turns out that social media played a major role.

“Once members of the churches started posting about the break-ins on Facebook, a lot of folks in the community wanted to help,” said Posey County Deputy Sheriff Tom Latham, who assisted in the case. “They wanted the people who committed the crimes to be brought to justice.”

The information online prompted several citizens to call in helpful tips to the Sheriff’s Office. The tips – as well as good old fashion police and detective work – helped lead authorities straight to the suspected criminals.

Latham said he is glad social media had a positive impact, but noted that isn’t always the case.

“The relationship between social networking and law enforcement is like many things – it can be a blessing, and it can be a curse,” he said.

Leaking sensitive information

Latham said it is now common for victims of a burglary, robbery or theft to post information about the on-going investigation on Facebook. The victims do so to vent about the stressful incident, but in the process, they also end up sharing sensitive details that can hinder a case.

Law enforcement officials say that sharing things like how their home or car was broken into, as well as listing the specific items that were stolen, can actually make it more difficult for authorities to catch the culprit.

“If that post or information gets back to the criminal, they can ditch those items before we even get to them,” Latham said. “They can throw the tool they used during a forced entry into the Ohio River. Those are crucial pieces of evidence that we simply can’t trace back to them now.” * * *

When criminals catch themselves

Criminals can use social media to their advantage, but they can incriminate themselves, too.

Latham said many people might not realize that things they share online can be used to build a case against them, and even become evidence if the case goes to court.

“We’ve had convicted felons post pictures of themselves holding guns, and teenagers driving past cops while smoking a joint,” the deputy said. “There have been people holding stolen items, and they brag about how they obtained those items.”

The false sense of security that comes with sharing information behind a screen is just that – an illusion. More frequently, law enforcement officers and courts in Indiana are using these items as evidence.

In 2014, the Indiana Court of Appeals broadened the admissibility of social media content as evidence in the case of Wilson v. State of Indiana. If a witness can verify that the suspect posted an incriminating photo, video or status, those things can be used as a piece of supporting evidence in the case.

ILB: The opinion is Donnell D. Wilson v. State, April 30, 2015. ILB summary here, 3rd case.

Posted by Marcia Oddi on Wednesday, March 01, 2017
Posted to Indiana Government

Ind. Decisions - More on: Plaintiffs file petition for transfer in Pence/Holcomb redacted emails case

Updating this comprehensive ILB post from Feb. 7, 2017, re the petition to transfer filed in the case of Groth v. State, which sought certain emails from then-Governor Pence, here is the "Corrected Response of Appellee Mike Pence, as Governor of the State of Indiana, in Opposition to Petition for Transfer of Appellant William Groth," [response to transfer petition] which the docket indicates was filed Feb. 24th. From the response:

The Court of Appeals’ majority affirmed the trial court’s decision based on its conclusions that the Governor acted within his discretion in declining to turn over the white paper under the deliberative materials exemption in APRA, Opinion at 30-31, and that the Governor has properly withheld the white paper because it is subject to the attorney-client privilege, id. at 23-30.

However, the Court rejected the Governor’s argument that his decision to withhold the white paper was nonjusticiable under the separation of powers provision of the Indiana Constitution, Opinion 9-18. The Governor has not sought transfer of that issue, but it would be presented for resolution if transfer is granted. Ind. App. R. 58(A). * * *

For the reasons set forth in sections I and II, supra, this Court should deny transfer. If this Court does grant transfer, it should consider addressing the issue discussed in section III, supra.

The "issue discussed in section III" was summarized in a Fort Wayne Journal Gazette editorial:
[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.”
That portion of the Court of Appeals ruling may now be at risk if the Supreme Court grants transfer, even though it is not the portion of the opinion that petitioner Groth is appealing. The ILB asked Groth attorney Greg Bowes about the decision to petition for transfer to the Supreme Court:
We pursued the petition for transfer, because we believe the Court of Appeals decision improperly expanded the common interest doctrine and the interpretation of deliberative materials. Even the Public Access Counselor has written that the deliberative materials exception only applies when the information comes from within the government. We knew the governor could reassert the separation of powers issue, but felt the Supreme Court had very narrowly decided the Koch case, and hoped it would not allow the idea to be extended to the executive branch.

I believe there has been a dangerous pendulum swing away from government transparency, and hope this appeal will provide some pressure to push the pendulum in the opposite direction.
Re whether Pence is still involved in this case, presumably the automatic substitution rule of Ind. App. Rule 17(C)(1) applies:
C. Substitution Of Parties.

(1) Automatic Substitution for Public Officers in Official Capacities. When a public officer who is sued in an official capacity dies, resigns or otherwise no longer holds public office, the officer's successor is automatically substituted as a party.

Next scheduled to be filed is a Reply Argument on Transfer.

Posted by Marcia Oddi on Wednesday, March 01, 2017
Posted to Ind. App.Ct. Decisions | Indiana Decisions | Indiana Government

Ind. Gov't. - Abortion bill that "completely undermines" judicial bypass passes Senate

Niki Kelly reports today in the Fort Wayne Journal Gazette:

An abortion bill [SB 404] that requires parents to be notified when their daughter pursues an abortion without their consent cleared the Indiana Senate on Tuesday.

“This is a bill about parental rights,” said Sen. Erin Houchin, R-Salem. “When speaking of abortions under these circumstances, these are not women seeking abortions. These are children seeking abortions.”

Indiana law currently requires girls under 18 to get permission from at least one parent before an abortion. But if they can’t or don’t want to, they can file a petition for a judicial bypass, in which a judge considers whether the girl is mature enough to make the decision on her own. Parents are not notified in these cases now.

Under the bill, parental notification could come in a variety of ways – giving the petition to the parent or legal guardian; leaving it at their home; sending it by certified mail; or running an ad in the newspaper.

Sen. Karen Tallian, D-LaPorte, said there are some situations in which notifying parents is not a good thing – such as if a girl is afraid she will be physically harmed by a parent for getting pregnant.

“The point of the judicial bypass is that she doesn’t want her parents to know for some good reason,” she said. “The bill completely undermines that.”

In 2015, fewer than 250 girls under the age of 18 had abortions in the state. According to testimony in committee, about 20 girls use the judicial bypass procedure annually.

Here are some other things the bill does:

• Requires an adult who gives consent for a girl’s abortion to prove to the abortion provider that he or she is the parent or legal guardian through birth records, court orders and identification.

• Requires a judge in bypass cases to use a higher burden of proof – clear and convincing evidence the girl is mature enough – before waiving the requirement of parental consent.

• Creates a right for parents of a minor to sue another adult, not immediate family, who “aids or assists” a minor in obtaining an unlawful abortion.

Four Republicans voted against the measure, including Sen. Sue Glick, R-LaGrange. House Speaker Brian Bosma has already said the bill will likely get a hearing.

Posted by Marcia Oddi on Wednesday, March 01, 2017
Posted to Indiana Government

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

Updating this ILB post from Feb. 10th, the Indiana Housing and Community Development Authority (IHCDA) now has a comprehensive web page "to provide status updates, progress reports, and other important information from State, Federal and local partners can be posted."

Posted by Marcia Oddi on Wednesday, March 01, 2017
Posted to Indiana Government

Ind. Courts - NW Ind. community discusses judicial system inequality

A long story this morning by Javonte Anderson of the Gary Post-Tribune - some quotes:

The Indiana Supreme Court's Commission on Race & Gender Fairness hosted the first of five forums statewide Monday in Gary to find potential solutions to the barriers that women and people of color encounter in the Indiana judicial system.

Residents, judges, lawyers and politicians, including an unexpected visit from Gary Mayor Karen Freeman-Wilson, gathered to discuss inequality issues in the state's judicial system and potential ways to remedy said problems. * * *

Lake County Superior Court Judge Bruce Parent said the judicial system is fundamentally flawed. "The system was designed by old white men to protect what they had," he said.

Parent said the statistics are showing that there's more diversity among lawyers and judges, but that they still aren't representative of the population.

"Even if we look at it on a micro-level, I was the third white male in a row chosen to be a judge in Lake County," he said. "I'm happy I was selected but something's not right about that."

Sheila Moss, the first African-American female judge in Lake County, said over her 24 years on the bench she's seen a little progress in terms of more minority lawyers, but there's more work to do.

"It's more diverse now than it ever has been but the demographics of the county have changed, too, so we need to keep pace with that," she said. * * *

After hosting four other forums throughout the state, the commission will deliberate before presenting a formal written report to the Indiana Supreme Court, said Myra Selby, the commission's president and former Indiana Supreme Court judge. * * *

Gilbert King, a black attorney in Gary, said he's pleased that the Supreme Court is willing to hear ways to address the racial and gender disparities that exist, but he hopes that people "aren't here just talking to talk."

"I hope we implement some of these suggestions and not here just talking or we're here just wasting time."

ILB: Here is the membership of the Commission on Race and Gender Fairness and here is its directive.

Here is the schedule of community forums in five cities throughout Indiana. Evansville is next up, tonight, March 1.

Posted by Marcia Oddi on Wednesday, March 01, 2017
Posted to Indiana Courts