Monday, April 10, 2017
Law - Pulitzer for editorial writing goes to editor of rural Iowa 3,000 circulation paper
Art Cullen of The Storm Lake Times, Storm Lake, IA, "co-owner with his older brother John of The Storm Lake Times, a 3,000-ciculation twice-weekly newspaper in Storm Lake, Iowa, pop. 10,000, in rural Northwest Iowa," was awarded the 2017 Pulitzer in Editorial Writing today:
For editorials fueled by tenacious reporting, impressive expertise and engaging writing that successfully challenged powerful corporate agricultural interests in Iowa.Here is a Pultizer page with a list (with links) of the 10 winning editorials. I've only read one so far, and I've become a fan. It is called "Unveiling the hidden truth", from March 3, 2016. A few quotes:
We are proud to stand with the Iowa Freedom of Information Council in seeking the release of public records from Buena Vista, Calhoun and Sac counties that would tell us how the counties are financing their defense of a lawsuit filed by the Des Moines Water Works over nitrate pollution of the Raccoon River. Regardless of your opinion about the merits of the water works’ lawsuit, the public deserves to know who is paying law firms in Des Moines and Washington, DC, and under what terms. * * *
Finally, we got the beginnings of an answer. Credit Buena Vista County Supervisor Paul Merten, D-Storm Lake, for telling us the nubbin of the truth: that there is a gigantic account funded by Farm Bureau and virtually every commodity group (corn growers, pork producers, soybean association, etc.) presumably using checkoff funds.
That’s fine, so far as it goes. That is all we are truly asking: How much is the bill and who is paying it? * * *
Ultimately, we believe, those bills are a BV County liability, not just of the drainage districts.
It is good to know for a few reasons.
First, you always follow the paymaster. If Farm Bureau is signing the check, then you know who is really calling the shots on our behalf. We elected a board of supervisors and a county attorney to direct the policies and protectthe taxpayers ofthis county. We did not elect the Farm Bureau or any other interest group to set our course.
Second, you always have friends when you are winning. Not so much when you are losing. We don’t know what the terms are among the slush fund donor(s), the boards of supervisors and the attorneys. But it could be open-ended. If, say,the counties lose during a side appeal to the Iowa Supreme Court, the agribusiness donors may decide to take their bets off the BV nag. Then we are left holding the bag for the rest of the federal trial. That certainly can happen.
Third, the public deserves to know all it can about how this defense is shaped since we believe the county, and its drainage districts, could be on the hook for more than $100 million in damages or, at least, could be subject to violations under the Clean Water Act. This is of the gravest importance. The public deserves to know how its property might be leveraged by the lawsuit, and the contributions to the legal defense add context and could color the outcome.
Fourth, Iowa law requires disclosure of this information. It is illegal to hide it as the supervisors are. There is no question that the information is being hidden. We have asked repeatedly. We do not know why this elaborate secret is being kept. If agribusiness concerns are paying the bills to protect their way of doing business, and the supervisors believe that voters agree and endorse the idea, then there is no reason to keep the truth under wraps.
Seldom have we been stonewalled like this. Obviously, the legal arrangements among the counties and the law firms are complex by design to shield the truth. It will not be easy to penetrate.
Ind. Gov't. - A thought on: "Should you have to pay $20 an hour for a public records search?"
As the ILB wrote earlier:
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.It strikes me that digging into the perceived need for this bill, gathering any evidence, would be a great project for a group of young journalism students ...
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.
Ind. Gov't. - Still more on "Should you have to pay $20 an hour for a public records search?"
The Indiana Professional Chapter of the Society of Professional Journalists calls upon state lawmakers to reject HB 1523, a bill that would let state and local government agencies charge up to $20 per hour to fulfill requests for public records that take more than two hours to find.Ironically, as reported in the SB Tribune editorial:
This legislation goes against the idea that government is supposed to serve the people, would undermine government transparency and could easily be abused to hide public records from the public view.
It is not hard to imagine local governments exploiting such a law to make it cost-prohibitive for journalists and concerned citizens to find out what their elected representatives are doing, and how their tax dollars are being put to use. Some citizens may not be able to afford such search fees and could be denied access to government records that are supposed to be available to all.
Government employees could deliberately drag their feet on such requests, racking up exorbitant charges to produce records the taxpaying public already paid for in the first place, either to shut down requests or deter them in the future.
If anything, the state legislature should be working to make public records more accessible, and available to anyone online. Local officials should not be given the tool of search fees to hide documents that belong to the public and should be open to the scrutiny of all taxpayers and voters.
The bill defeats the entire purpose of Indiana’s public access laws, and should be defeated. It has the potential to be an obstacle to the reporting of a free press and an impediment to finding out the truth that could shroud government doings in secrecy. This legislation is simply not in keeping with the values of Hoosiers or an open, democratic society.
If government agencies are actually struggling with the burden of providing the public with public records, it should be addressed in another way — perhaps by automatically publishing everything on the government agency’s website so journalists and citizens can execute such searches themselves, freeing up government workers for whatever other tasks.
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.Clearly, the IHSPA and the public's interests diverge here. The IHSPA also appears to be at odds with the Society of Professional Journalists...
Ind. Gov't. - "Student journalist protections die in Indiana Senate"
Dakota Connell-Ledwon of the South Bend Tribune reported Sunday in a story that begins:
A bill meant to protect student journalists’ First Amendment rights died in the Indiana Senate on Friday.And as the ILB wrote April 7th, the Kansas story ("These high school journalists investigated a new principal’s credentials. Days later, she resigned.") apparently played a role. Again from the SB Tribune story:
Rep. Edward Clere, author of House Bill 1130, intended the bill to roll back the restrictions imposed by the 1988 Hazelwood Supreme Court decision.
The Hazelwood decision created a precedent that allows school administrators to censor public high school and college publications almost at will.
Clere grew up in Floyd County and attended Floyd Central High School, where he was a student journalist himself. The issue hits particularly close to home for him — his 15-year-old daughter is an assistant news editor at the same school newspaper where he first ventured into journalism.
“Student journalists play a vital role in a school setting in the same way that professional journalists play a vital role in a community at the state or national level,” Clere said. “They foster accountability and transparency, they carry on important conversations, they bring issues and interest to light, and beyond all that, student journalism is a hands-on civics lesson for the entire school community.”
“Hazelwood had created a fuzzy standard for where administrators could step in and censor material,” said Stephen Key, executive director of the Hoosier State Press Association.
He noted that House Bill 1130 wouldn’t have given students the freedom to write just anything and everything.
School administrations "will still have power, but they won’t be able to step in just because they think the story puts them in an unfavorable light or touches on a sensitive topic,” he said. “The administration can still step in if they review the publication and it’s inciting someone to break the law, or if it’s obscene or libelous.”
[Rep. Edward Clere, author of House Bill 1130] claims McCormick misinterpreted a recent instance of student journalism to frighten lawmakers into opposing the bill. While speaking against the bill on Friday, she brought up a group of high school journalists in Kansas whose research uncovered problems with the credentials of their newly hired principal. The principal resigned a few days later.
According to Clere, McCormick used this story as evidence that the bill would result in student journalists getting principals fired.
“We’re going to have to go back to a lot of senators, help them understand that they have been misled and provide them with correct information and the facts which support this legislation,” Clere said. “There’s nothing here for anybody to be scared of.”
Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal
In Thom Howell v. Shawn Smith (ND Ind., Moody), a 14-page opinion, Judge Ripple writes:
On May 15, 2011, Officer Shawn Smith of the Highland, Indiana Police Department received a call from his dispatcher, alerting him to a road rage incident involving the discharge of a firearm. He later came upon a car matching the description and conducted a “high‐risk traffic stop.” Officer Smith placed Mr. Howell, the occupant of the car, in handcuffs and detained him until other officers brought the alleged victim to the scene.2 The victim positively identified Mr. Howell and his vehicle as involved in the road rage incident. Nonetheless, the officers found no weapon and decided to release Mr. Howell. The whole episode lasted approximately thirty minutes.
Mr. Howell initially brought this action in state court, alleging that the officers’ treatment had aggravated a preexisting shoulder condition, which became worse with time and required multiple surgeries. Following the transfer of the proceedings from state to federal district court, Officer Smith moved for summary judgment on the ground of qualified immunity. The district court denied the motion, and Officer Smith filed this interlocutory appeal.
We respectfully disagree with the district court’s decision to deny Officer Smith’s immunity claim. In our view, Officer Smith’s decision to place Mr. Howell, then implicated in a serious crime involving the discharge of a weapon, in handcuffs and to keep him in handcuffs until satisfied that he was not a threat did not violate the Fourth Amendment. Therefore, under the doctrine of qualified immunity, the federal count in the complaint must be dismissed. Accordingly, we reverse the judgment of the district court and remand the case for further proceedings.
Ind. Decisions - Transfer list for week ending April 7, 2017
Here is the Clerk's transfer list for the week ending Friday, April 7, 2017. It is two pages (and 18 cases) long.
Four transfers were granted last week:
- Suzanne E. Esserman v. Indiana Department of Environmental Management - this was a Dec. 29, 2016 COA opinion, where:
... Esserman alleged that IDEM had unlawfully terminated her employment, in violation of Indiana’s False Claims Act, Ind. Code §§ 5-11-5.5- 1 to -18 (2016), in retaliation for her reporting alleged misuse of State funds by certain IDEM officers. * * *See ILB summary here - 3rd case.
In sum, none of the three limited circumstances in which our supreme court has recognized that common law sovereign immunity still exists applies here. See Benton, 721 N.E.2d at 227. And Esserman’s complaint states a claim upon which relief can be granted under Indiana Code Section 5-11-5.5-8. Accordingly, the trial court erred when it dismissed Esserman’s complaint pursuant to Indiana Trial Rules 12(B)(1) and 12(B)(6). We reverse the trial court’s dismissal of Esserman’s complaint and remand for further proceedings.
- Mario Deon Watkins v. State of Indiana - this was a 2-1, Jan. 6, 2017 COA opinion - see ILB summary here.
- Richard D. Shepard v. State of Indiana - this was a Jan. 20, 2017 COA opinion involving good time credit for days served in community corrections. Access the ILB summary here, 2nd case.
- Charles McKeen, M.D. v. Billy Turner - transfer was granted, with opinion, on April 7th. See the ILB summary here.
- Tracy L. Green Snowberger, et al. v. ESG Security, Inc. - this is a 12/27/16 COA decision, involving the foreseeability of collapse of the stage at the Indiana State Fair on August 13, 2011. Transfer Denied - Rucker, Massa, and Slaughter, JJ., vote to deny transfer. Rush, C.J., and David, J., vote for oral argument on the transfer petition.
- Termination: O.G., et al. v. Indiana Department of Child Services, et al. - this is a Dec. 21, 2016 COA opinion (see ILB summary here, 2nd case). Transfer Denied - Rucker and Slaughter, JJ., vote to deny transfer. David and Massa, JJ., vote to grant transfer. Rush, C.J. did not participate.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 7 NFP memorandum decision(s))
For publication opinions today (1):
In Jacob Maciaszek v. State of Indiana, a 12-page opinion, Judge May writes:
The trial could did not err when it denied Maciaszek’s request for presentence credit for actual time served or for good time credit based on the time he spent incarcerated in Florida and New Hampshire prior to his extradition to Indiana. However, the trial court should have granted Maciaszek’s request for presentence credit for actual time served and good time credit for the time he spent in Indiana awaiting trial on the Indiana charges. Accordingly, we affirm in part, reverse in part, and remand for amendment of Maciaszek’s sentencing order to reflect a proper calculation of credit time.NFP civil decisions today (1):
NFP juvenile and criminal decisions today (6):
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Ind. Decisions - Upcoming oral arguments this week and nextThis week's oral arguments before the Supreme Court (week of 4/10/17):
- No oral arguments scheduled.
- No oral arguments scheduled.
This week's oral arguments before the Court of Appeals (week of 4/10/17):
Tuesday, April 11
- 10:00 AM - Indiana Gas Company, Inc., and Southern Indiana Gas & Electric Company v. Indiana Utility Regulatory Commission, et al. (93A02-1604-EX-00943) Appellants/Plaintiffs, Indiana Gas Company, Inc. and Southern Indiana Gas & Electric Company (collectively, “Vectren”), appeal the appellee, Indiana Utility Regulatory Commission’s (“the IURC”), denial of their petition to update their seven-year plan under the Transmission, Distribution, and Storage System Improvement. On appeal, the parties ask us to determine whether a utility may add qualifying new projects to its existing seven-year plan under the TDSIC statute’s update process. Vectren also raises the issue of whether the doctrine of res judicata prevents the IURC from revoking its earlier approval of Vectren’s update plan for its seven-year plan. Indiana Energy Association has filed a “friend of the court” brief that aligns with Vectren, and Industrial Energy Consumers, Inc. has filed a “friend of the court” brief that aligns with the Appellees-Defendants, the IURC and the OUCC.
The Scheduled Panel Members are: Judges Bradford, Pyle, and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]
- 1:30 PM - B&R Oil Company, Inc., Empire Petroleum Partners, and EPP -Atlas Acquisition, LLC v. William E. Stoler, Kathlyn Stoler, Jeffrey A. Levy, and Con-Serve, Inc. (71A04-1603-PL-00608) B&R Oil Company, Inc. (“B&R”) separately leased gas stations to William E. Stoler and Kathlyn Stoler (“Stoler”) and Jeffery A. Levy and Con-Serve, Inc. (“Levy”), and each lease had a “right of first refusal” provision. Subsequently, B&R sold substantially all of its assets to Empire Petroleum Partners, LLC and its affiliate EPP-Atlas Acquisition, LLC (“Empire”). Before closing the transaction with Empire, B&R notified Stoler and Levy, and a dispute arose about Stoler’s and Levy’s rights under the “right of first refusal” provision. Stoler and Levy sued, and the trial court granted partial summary judgment to Stoler and Levy. B&R and Empire now appeal the interlocutory order. The Scheduled Panel Members are: Judges Najam, Bailey, and May. [Where: Court of Appeals Courtroom (WEBCAST)]
- 2:00 PM - Sandburg Trucking, Inc. and Kimiel Horn v. Brittany M. Johnson (79A04-1605-CT-01069)On April 27, 2008, a truck owned by Appellant-Defendant Sandberg Trucking, Inc., and driven by Appellant-Defendant Kamiel Horn struck a deer while southbound on I-65 in the dark. After striking the deer, Horn pulled his truck over to assess the damage to his truck but did not activate his flashers or deploy reflective devices. Shortly thereafter, a car in which Appellee-Plaintiff Brittany M. Johnson was a passenger approached the scene, swerved left to avoid the deer, and collided with Horn’s truck after overcorrecting right. The driver of the car was killed and Johnson was permanently injured. A jury found Appellants to have been 30% at fault for Johnson’s injuries and awarded her $2.13 million. Appellants contend that Johnson did not establish that any action by them proximately caused her injuries, the trial court erroneously allowed the jury to engage in impermissible speculation in reaching their verdict, erroneously concluded that a certain federal regulation applied even though Horn was not involved in interstate commerce, and that the jury’s award was not based on evidence admitted at trial. Johnson contends that the she did establish proximate cause, the trial court properly concluded that the federal regulation at issue applied in this case, and that the jury’s award was supported by ample evidence of permanent disability. The Scheduled Panel Members are: Judges Najam, Riley, and Bradford. [Where: Court of Appeals Courtroom (WEBCAST)]
Next week's oral arguments before the Court of Appeals (week of 4/17/17):
Monday, April 17
- 1:30 PM - David Oaks v. Timothy R. Chamberlain, M.D. (92A04-1609-CC-02041) David Oaks filed a complaint for damages against Dr. Timothy Chamberlain for medical malpractice, alleging that Dr. Chamberlain failed to follow the standard of care requiring serial x-rays for Oaks’ post-operative condition. At a five-day jury trial, both Oaks and Dr. Chamberlain produced expert medical testimony as to the standard of care for a patient in the same post-operative situation as Oaks. Oaks made an offer of proof in which he elicited testimony from one of Dr. Chamberlain’s witnesses, Dr. Moore, that Dr. Moore’s treatment of a patient in the same situation as Oaks would have included ordering x-rays, even though Dr. Moore had testified that x-rays were not required by the standard of care. The trial court excluded that testimony and the jury returned a verdict in Dr. Chamberlain’s favor. On appeal, Oaks raises an issue of first impression in Indiana, namely, whether a trial court abuses its discretion when it excludes a medical expert’s testimony about his medical practices as a provider elicited for the purpose of impeaching the expert’s prior testimony about the standard of care. The Scheduled Panel Members are: Judges Najam, Riley, and Bradford. [Where: Court of Appeals Courtroom (WEBCAST)]
Tuesday, April 18
- 3:30 PM - Larry C. Perry, Jr. v. State of Indiana (02A04-1608-CR-01890) dispatched to the Coliseum Inn located in Fort Wayne, Indiana, regarding a possible disturbance in one of the rooms. When officers arrived, they found Larry C. Perry, Jr. and his wife, Lydia Perry in the room. Officer DeLong noticed that Lydia had a bloody lip. She told him that Perry had hit her in the face. DeLong also noticed some bruising which he later learned was from a previous incident occurring in the evening hours of December 2 or early morning of December 3, 2015. Regarding that incident, Lydia told DeLong that Perry had punched her, attempted to choke her and stabbed her in the thigh with a dinner fork. Perry was arrested and charged with level 5 felony battery, level 6 felony battery, level 6 felony strangulation and two counts of level 6 felony domestic battery. On June 29, 2016, a jury found Perry guilty on all charges and found him to be a habitual offender. He was sentenced to an aggregate sentence of fourteen years. Perry appeals arguing that his convictions are not supported by sufficient evidence because during her testimony, Lydia recanted her statements made to police and testified that she had lied out of vindictiveness and jealousy. He also claims that there was no testimony indicating that the previous incident on December 2nd and 3rd occurred in Fort Wayne. Perry also claims that the trial court erred in denying his motion for mistrial when, during the investigating detective’s testimony, the detective stated that Perry told him he was with his father on December 2nd and 3rd and not with his wife. The detective then blurted out that Perry’s father denied his son’s claim. Finally, Perry claims that his sentence is inappropriate in light of both the nature of the offenses and his character. The Scheduled Panel Members are: Judges Barnes, Crone, and Altice. [Where: Manchester College, 604 E. College Ave., North Manchester, IN]
Thursday, April 20
- 10:00 AM - Bradley Baldwin v. State of Indiana (49A05-1609-CR-02025) Baldwin was charged with murder, attempted murder, unlawful possession of a firearm, and being a habitual offender. At trial, he attempted to introduce evidence of another shooting that occurred on the same night, but the trial court excluded the evidence. During the trial, a juror contacted lawyers she knew personally and discussed the burden of proof in a criminal case with them. The jury found Baldwin guilty of the three crimes, and then the trial court found he was a habitual offender. Baldwin appeals the jury verdicts asserting the trial court abused its discretion by excluding exculpatory evidence and by denying his motion for mistrial based on confirmed juror misconduct. The Scheduled Panel Members are: Judges Baker, May, and Altice. [Where: TriWest High School, 7883 N. State Route 39, Lizton, IN 46149]
Friday, April 21
- 10:00 AM - Rene DiBenedetto v. Timothy Devereux (49A05-1609-CT-02146) After being injured in a car accident, Rene DiBenedetto executed a contingent fee contract for legal services with Conour Law Firm where Timothy Devereux was employed as an attorney. While represented by Conour Law Firm, DiBenedetto met with Attorney Devereux, who responded to DiBenedetto’s inquiry concerning the distribution of her settlement proceeds. It was later discovered that DiBenedetto’s settlement proceeds had been stolen by William F. Conour. DiBenedetto filed this legal malpractice action against Attorney Devereux, arguing that that Attorney Devereux owed her a duty to provide truthful and accurate information, that he breached this duty, and that such breach was the proximate cause of her loss resulting from the mishandling of her settlement proceeds. The trial court granted Attorney Devereux’s motion for summary judgment. The Scheduled Panel Members are: Judges Riley, Crone, and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]
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.