Monday, April 17, 2017
Ind. Courts - Conference Committee meeting on Marion Superior Court judicial selection is this afternoon
The ILB's most recent post on HB 1036, the Marion Superior Court judicial selection, was on March 30th, headed "Senate Committee amends HB 1036, intended to replace Marion County judicial selection law declared unconstitutional by the 7th Circuit."
The House dissented in the Senate amendments and the bill now is in conference committee. The conference committee is meeting this afternoon, at 3:00 PM. You will be able to watch it live.
The following article by Theodore R. Boehm will appear in the center spread of The Indiana Lawyer this week. I'm told Justice Boehm's views are in agreement with the IndyBar’s, those given by the Marion Superior Court’s lobbyist, and the House bill authors:
Perspectives on House Bill 1036
By Theodore R. Boehm, Hoover Hull Turner LLP
From 1975 through 2014, with a few minor tweaks, half of Marion County judges were elected in the Republican primary and half in the Democratic primary. No party was allowed to nominate more than half the number of seats up for election. This system initially allowed for one loser in the general election, but in the twenty‐first century the parties’ two monopolies, each on half the Superior Court bench, were cemented and the general election became a complete farce.
This shared monopoly worked pretty well in terms of the quality of the bench. So most of us were reasonably satisfied with an undemocratic system that produced, with few exceptions, capable hard working judges. Challenges to this bipartisan accommodation came not from concern about the judges it was producing, but about the pressure put on the legal system by the parties’ demands for ever escalating “slating fees” required for the party’s blessing in the primary that had become the gateway to the bench. When the parties came to see the bench as a cash machine exploiting the willingness of lawyers to support judicial candidates, it was time to challenge a system that turned judicial selection into a private for profit enterprise.
The ACLU challenged this judicial selection system as incompatible with basic democratic principles, and the Seventh Circuit ultimately affirmed Chief Judge Young’s opinion finding it a violation of the Federal Constitution. There were no judicial seats up for election in 2016, so the General Assembly elected to pass on filling the void. Now, however, if nothing is done by the legislature, presumably the courts will design a process for us before the 2018 election.
The Indianapolis Bar Association has endorsed the House version of House Bill 1036 which would fill this gap by creating a new Marion County Judicial Selection Committee. In that version of the bill, the committee is to propose three nominees to the Governor to fill any vacancy. The Governor is constrained by the requirement that no more than fifty‐two percent of the Marion County bench are to be of the same party. The committee’s processes are similar to the seven‐member Judicial Nominating Commission (JNC) that has chosen three candidates to fill any vacancy on the Indiana Supreme Court or the Court of Appeals since 1970.
The Marion County Committee differs from the JNC in its size (14 members) and composition. The JNC is chaired by the Chief Justice of Indiana, and has three members elected by the lawyers of the state and three appointed by the Governor. The Marion County Committee proposed by the House version of H.B. 1036 has four members appointed by leaders of the Indiana House and Senate, four attorneys appointed by the presidents of the Indianapolis Bar Association, the Marion County Bar Association, the Indiana Trial Lawyers Association, and the Defense Trial Counsel of Indiana, four appointed by the Marion County chairs of the two major political parties, and two appellate judges chosen by the Chief Justice and the Chief Judge of the Court of Appeals.
Some have complained that giving appointments of eight of 14 seats on the committee to officeholders or party officials injects “politics on steroids” into the process. But the political appointing officials are equally divided between the two major parties. And H.B. 1036 has two major benefits: it removes the judges from fundraising and assures careful review of candidates’ qualifications and character. In the judgment of those closest to the legislative pulse, giving politicians right to appoint members of the committee is necessary to make the bill palatable to the General Assembly. H.B 1036 isn’t perfect, but it’s the best we can do.
There have been concerns voiced by some members of minority communities that this bill is antidemocratic because it denies the voters a voice in the process. But if the real concern is that the committee will produce a less diverse bench, the experience with the JNC and other commissions shows otherwise. And lawyers in the two counties—Lake and St. Joseph— with nominating commissions report they are pleased with the bench they get from their nominating commissions.
Selecting a judge requires evaluation of professional skills, patience, hard work and integrity. History has shown time and time again that in major metropolitan areas, the vast majority of the general voting public does not know the judicial candidates, and does not have the interest or access to information to make an informed decision. Support H.B 1036 as the best practical hope to confine fundraising to the political branches and ensure proper vetting of candidates.
Boehm served as Associate Justice of the Indiana Supreme Court from 1996 to 2010, authoring the most majority opinions for the court in that span.
Ind. Courts - February 2017 bar exam results listed
The list of applicants who passed the Indiana Bar Exam in February 2017.
Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 5 NFP memorandum decision(s))
For publication opinions today (0):
NFP civil decisions today (2):
NFP juvenile and criminal decisions today (3):
Ind. Gov't. - IBJ EDITORIAL: Don’t price public out of public records
From the April 15th IBJ editorial:
[HB 1523] would allow government agencies to charge the public and the media up to $20 an hour to fill public-information requests that take longer than two hours to retrieve.
That’s right: $20 an hour for an employee paid by taxpayers to search for records funded by taxpayers to provide to those taxpayers.
The fee is an affront to those members of the public and the media who want to try to understand and sometimes keep an eye on the elected officials and their staffs who are spending public money.
Supporters of the bill argue that government agencies can be deluged with public-records requests that pull them away from the work of governing. And at a time when those government agencies face increasingly difficult financial pressures, that concern is easy to understand.
But the problem with the argument is that it implies providing records to the public is not part of elected officials’ jobs. Actually, it’s one of their most essential roles.
After all, an informed electorate is key to a working democracy.
The ability of a city resident—or a TV station or an opposing candidate or whoever—to dig into procurement records that determine which local companies get lucrative government contracts can help keep a city council honest.
A newspaper reporter’s determination to pore through thousands of emails sent and received by elected officials to ferret out whether they are following rules that separate campaigns from official government business can give voters essential information—and might even uncover criminal activity.
And the ability to do that kind of research should not be hampered by an individual’s ability to pay.
Former Gov. Mike Pence—the current vice president—knows that. He actually faced a much more difficult decision in 2015 when a bill with a similar provision reached his desk. In that case, the bill also included several provisions that would have meant positive changes in public transparency.
Still, Pence did not let those better provisions outweigh what was wrong with the legislation. He said when he vetoed the bill that “the cost of public records should never be a barrier to the public’s right to know.”
We urge Holcomb to reach the same conclusion.
Ind. Gov't. - "Indiana legislative session set to end Friday"
Dan Carden reports in the NWI Times in a story that begins:
Hoosier lawmakers are planning to end the four-month annual meeting of the Indiana General Assembly on Friday — eight days ahead of the April 29 mandatory adjournment deadline.
It's not that there isn't legislative work still to be done, but next week, representatives and senators would have nowhere to sleep in Indianapolis as an international firefighters convention is set to take over all the hotel rooms in the state's capital city.
That means the usual end-of-session pressure and deal-making at the Statehouse will be taken to the next level, as lawmakers try to hash out compromise versions of proposals that already have passed the Republican-controlled House and Senate with varying provisions.
Senate President David Long, R-Fort Wayne, said he's expecting "a very, very busy final week that will require a lot of patience, diligence and long hours — and that's the way it should be.
"The pressure to get things done is one of the things that makes Indiana's Legislature unique, and I think it makes us work better," Long said.
House Speaker Brian Bosma, R-Indianapolis, is advising his members not to let perfect be the enemy of the good, as they strive to blend conflicting provisions in their legislative proposals.
"I've encouraged members of conference committees to get their work done, and get it done as quickly as possible, because once we get an agreement on roads, the budget and liquor, we're getting out of here," Bosma said.
Of course, talking about an agreement on those issues always is easier than actually coming to an agreement.
Ind. Gov't. - "Micromanagement could spread to Indiana: Home-rule helicoptering"
The Wall Street Journal reported last week that states are trying a new approach to curbing the powers of local governments.
Florida, Texas and Pennsylvania, the Journal reported, are considering “broad-based approaches to block city ordinances, rather than fighting cities on specific issues like minimum-wage rules. Arizona has already enacted such a rule.”
Given the general legislative hostility toward what used to be known as “home rule,” it's not too early to worry about whether Indiana could be far behind.
“Proponents say these wide-ranging bills are a way to get ahead of a flurry of local actions around the country, such as a plastic-bag levy in New York City, a paid sick-leave requirement in Philadelphia and ride-sharing regulations affecting companies such as Uber,” the Journal reported. Advocates say the new omnibus approach will help states smooth the regulatory environment for businesses. Detractors say it's about power and politics.
The lure of interceding on decisions better left to municipalities is a temptation to which Hoosier legislators frequently succumb.
Last year, the legislature turned aside from weightier matters to head off an effort by environmental activists to ban plastic bags in Bloomington. Now, cities in Indiana are forbidden even to limit or tax the use of such bags. Also in 2016, Rep. Matt Lehman, R-Berne, shepherded through a bill to smooth the way for Uber and other ride-sharing services. That the measure overrode local ordinances in places such as Fort Wayne didn't seem to matter.
This year, the Senate and House are working to finalize a bill that would stop municipalities from prohibiting Airbnb-style short-term rentals and sent a proposal to prevent localities from regulating the size and placement of cellphone companies' transmission towers to a summer study committee. * * *
Win Moses Jr., a Democrat who's seen the issue as a Fort Wayne mayor and as a state representative, said Friday it's been at least two decades since the legislature routinely honored the home-rule concept. Since then, finding compromise between the need for statewide predictability and the rights of communities to determine their own rules has been difficult.
Ind. Decisions - Transfer list for week ending April 14, 2017
There were no transfer dispositions last week, and hence, there is no transfer list.
Ind. Decisions - Upcoming oral arguments this week and nextThis week's oral arguments before the Supreme Court (week of 4/17/17):
- No oral arguments scheduled.
Thursday, April 27
- 9:00 AM - In the Matter of J.B. and L.B.; J.J. (Mother) v. The Indiana Department of Child Services (20A05-1510-JC-01612) The mother and father shared joint custody of their children under an order entered by the Elkhart Superior Court in the parents’ paternity case. The Elkhart Circuit Court adjudicated the children to be Children in Need of Services (“CHINS”) and later issued an order giving the father sole custody and closing the CHINS case without entering a dispositional decree. The Court of Appeals reversed and remanded. In re J.B., 55 N.E.3d 903 (Ind. Ct. App.), superseded on reh’g, 61 N.E.3d 308 (Ind. Ct. App. 2016). The Indiana Department of Child Services has petitioned the Court to accept jurisdiction over this appeal. ILB: This was a June 8, 2016 COA opinion, reversed on a motion for rehearing in a Sept. 8, 2016 opinion (ILB summary here, 5th case)
- 9:45 AM - Howard County Assesor v. Kohl's Indiana LP (49T10-1502-TA-00004) After Kohl’s appealed the Howard County Assessor’s valuation of its property, the Indiana Board issued a determination in favor of Kohl’s, finding that its appraisal (which used vacant big-box stores, or “dark boxes,” as comparable properties) most accurately reflected the market value-in-use standard as interpreted in recent Tax Court decisions. The Tax Court affirmed. Howard County Assessor v. Kohl’s Indiana LP, 57 N.E.3d 913 (Ind. Tax Court Sept. 7, 2016), trans. pending. The Howard County Assessor has petitioned the Supreme Court to accept jurisdiction over the appeal, and amici curiae Indiana County Assessors Association, the Indiana Association of Cities and Towns, and the Indiana Municipal Lawyers Association have filed a brief in support of review.
- 10:30 AM - Summer Snow v. State of Indiana (45S03-1703-CR-00169) and Reginald Harris v. State of Indiana (45S03-1703-CR-00172) In these two cases tried together, Summer Snow and her co-defendant Reginald Harris filed a motion to exclude evidence of Snow’s lawfully-possessed handgun. The Lake Superior Court denied the motion, and the jury convicted Snow and Harris of battery against a public safety official, and convicted Snow of resisting law enforcement. A majority of the Court of Appeals affirmed. Snow v. State, 65 N.E.3d 1129 (Ind. Ct. App. 2016), vacated; Harris v. State, 66 N.E.3d 628 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted transfer and assumed jurisdiction over both appeals pursuant to Appellate Rule 56(A). [sic] The Court will hold a combined oral argument in the two cases, but otherwise has not consolidated the appeals.
ILB: Both were 2-1 opinions of the COA:
- Summer C. Snow v. State of Indiana - this was a 2-1, Dec. 29, 2016 COA opinion (ILB summary here, 6th case). From the dissent: "This case boiled down to Officer Peck’s word against Snow’s and the admission of the gun could have tipped the scales in favor of the State."
- Reginald Harris v. State of Indiana - this also was a 2-1, Dec. 29, 2016 opinion (ILB summary here - 7th case). From the dissent: "I respectfully dissent. For the same reasons explained in my dissent today in the case of Harris’ co-defendant, Summer Snow ...".
This 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)]
Monday, April 24
- 1:00 PM - State of Indiana v. John B. Larkin (46A04-1607-C-01522) In 2012, John Larkin’s wife was found dead from multiple gunshots in their home. At the police station, a conversation between Larkin and his attorneys was recorded. Larkin was later charged with voluntary manslaughter. Prior to trial, Larkin moved to dismiss the charges against him because recording the conversation with his attorneys violated his Sixth Amendment right to counsel; the trial court denied the motion for lack of prejudice. Larkin also filed a motion to disqualify the prosecutor’s office and requested appointment of a special prosecutor because members of the prosecutor’s office had viewed the recording and/or read a transcript of the confidential conversation; the trial court also denied this motion. The trial court’s order denying the motion to disqualify was certified for interlocutory appeal but this court held the question of disqualification was moot because the county prosecutor was defeated in the 2014 primary election and the new prosecutor who took office in January 2015 was not involved in listening to the confidential conversation. Larkin v. State, 43 N.E.3d 1281 (Ind. Ct. App. 2015). After this court’s opinion was issued and the case returned to the trial court, a special prosecutor was appointed on the newly-elected prosecutor’s motion. Larkin then moved to disqualify the regular judge, who denied any reason for recusal but recused nonetheless. The special judge accepted his appointment in February 2016. Larkin then filed a motion for discharge pursuant to Criminal Rule 4(C) alleging the State failed to bring him to trial within one year and a motion to dismiss alleging continuing Sixth Amendment and Article 1, section 13 violations related to the recorded confidential conversation. The special judge granted both the motion to discharge and the motion to dismiss. The State now appeals, arguing 1) Larkin waived any Rule 4 violation and 2) the special judge abused his discretion in reversing the regular judge’s earlier orders and dismissing the case. With respect to Criminal Rule 4, the issue is when the clock began running after this court issued its opinion in the interlocutory appeal and whether the delay resulting from the defendant’s motion for change of judge is chargeable to him. With respect to the dismissal based on misconduct, the issue is whether the trial court erred in applying an irrebuttable presumption of prejudice and in denying the State a hearing on the issue. The Scheduled Panel Members are: Judges Riley, Robb, and Barnes. [Where: Hammond Academy of Science and Technology, 33 Muenich Court, Hammond, IN]
- 10:00 AM - Dustin Sorhaindo v. State of Indiana (49A05-1608-MI-01814) On June 30, 2015, a brown box with black duct tape addressed to Dustin Sorhaindo arrived at a local shipping company in Indianapolis, Indiana. That package was singled out for being suspicious and the local shipping company called the police. Upon conducting a narcotic examination of the package, a K9 officer gave a positive indication of a controlled substance in the suspect package. The State applied for a search warrant which was issued on the same day. Following the execution of the search warrant, the police found twenty-four rubber-banded stacks of United States currency, which amounted to $47,940. In December of 2015, the State filed a motion to transfer the seized money from the State to the federal authorities. In July of 2016, the trial court granted the State’s motion to transfer money.
Sorhaindo appeals, requesting this court to review whether the trial court erred in granting the State’s motion to transfer the money seized to the relevant federal authorities.
The Scheduled Panel Members are: Judges Riley, Robb, and Altice. [Where: Wabash College, Crawfordsville, IN ]
- 1:30 PM - Tyler R. Browder v. State of Indiana (49A04-1608-CR-01857) This case arises out of a traffic stop made just before midnight on November 11, 2014, in Indianapolis, Indiana. Tyler Browder (“Browder”) was driving from his apartment complex to a fast-food restaurant in a car with a license plate that was registered to a different vehicle. An Indianapolis Metropolitan Police Department officer, Sgt. Brady Ball (“Officer Ball”), driving behind Browder ran the license plate and found it did not match the vehicle. Officer Ball then pulled Browder over into a nearby gas station because he suspected the vehicle might be stolen. At that time, Officer Ball turned on his audio recording device and the rest of the stop and arrest were recorded. During the stop, Browder claimed that he and his wife had just purchased this vehicle and he thought they had thirty days to use the transferred plate from their previous vehicle. The Officer Ball explained that the statute required Browder have the title or bill of sale in the vehicle. Browder stated that the paperwork was at his home with his wife and indicated that he did not have a paper registration for the vehicle either. The officer returned to his patrol car and ran Browder’s driver’s license and criminal history against BMV and police records. The IMPD officer found that the vehicle was not registered to Browder and discovered that Browder had been a suspect in a prior auto theft. After learning this information about fifteen minutes into the stop, the officer asked Browder to step out of the vehicle in order to question him further about the vehicle’s ownership and his criminal history. During this conversation, Officer Ball asked Browder if there was any identifying paperwork left in the vehicle from the previous owner. He also asked Browder if anything illegal was in the vehicle. Seventeen minutes into the stop, Browder stated there was nothing illegal in the vehicle and told Officer Ball that he could “check it.” There was further discussion between the two, and Officer Ball advised Browder of his right to refuse a search. Browder stated he had “nothing to hide” and that the officer could search the vehicle. In the vehicle, the officer found a marijuana pipe under an insert in the center console. The officer then handcuffed Browder and placed him in the patrol car. Browder admitted that he smokes marijuana but denied ownership of the pipe and knowledge that it was in the vehicle. Browder was charged with possession of paraphernalia, a Class A misdemeanor, and operating a vehicle on a transferred plate for more than thirty-one days, a Class C infraction. The infraction was later dismissed by the State. The Marion Superior Court conducted a three-part bench trial on March 7, April 26, and July 20, 2016, where Browder was found guilty of possession of paraphernalia. During the trial, Browder objected to the admission of the pipe found during the stop. Browder appeals the trial court’s decision to admit the evidence from the vehicle search, arguing that the search and seizure violated the Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the Indiana Constitution. Specifically, Browder argues that the extension of the stop for a traffic infraction was unreasonable. Browder also argues that his consent to search was not voluntary and, therefore, did not give the officer the authority to search the vehicle. The State responds that the officer did have reasonable suspicion to further investigate based on the nature of the traffic infraction. Thus, the State contends that there are no constitutional violations and that the trial court did not abuse its discretion in admitting the evidence. The Scheduled Panel Members are: Judges Kirsch, Mathias, and Pyle. [Where: Cathedral High School Auditorium, 5225 E. 56th St., Indianapolis, IN]
Thursday, April 27
- 2:00 PM - 401 Public Safety, LLC and Lifeline Data Centers, LLC v. David Ray and Committee to Elect David Ray (49A02-1609-PL-02132) Lifeline Data Center, LLC (“Lifeline”) is a tenant of the former Eastgate Mall site in Indianapolis, and 401 Public Safety, LLC is the owner and lessor of the property. Both Lifeline and 401 Public Safety are managed by an individual who is an owner of both companies. The City of Indianapolis is also a lessee of a portion of the property, which portion is commonly referred to as the “Regional Operations Center.” In 2015, during his successful campaign for the 19th District of the Marion County City-County Council, David Ray and the Committee to Elect David Ray (“collectively Ray”), distributed a flyer to residents in his eastside Indianapolis District stating that Lifeline contributed $1300 to incumbent Councilman Ben Hunter’s campaign. The flyer contains additional statements that Lifeline and 401 Public Safety alleges are false and defamatory. Specifically, the content of the flyer addressed the alleged deteriorating condition of the former Eastgate Mall site and accused incumbent Councilman Hunter of cutting “a sweetheart deal for a political insider. A deal that cost the city millions and ties up the former Eastgate site for 25 years.” The flyer stated, “[w]hat will $1300 from a political insider buy? A contract with the City.” The flyer alleged that code enforcement violations and fire and safety hazards existed, and that investigations had occurred at the former Eastgate Mall site. Finally, the flyer states that the community surrounding the site will be responsible for cleaning it up. Lifeline and 401 Public Safety filed a complaint in Marion Superior Court alleging that the statements in the flyer were false and defamatory. 401 Public Safety alleged that it was defamed because it owns the Eastgate Mall site, which was falsely depicted as a fire and safety hazard with existing code violations. 401 Public Safety also alleged that the flyer contains picture of the property from the 1950s, and the property’s condition is markedly different from the image used in the flyer. Lifeline alleged that it was defamed because Ray’s flyer implies that Lifeline bribed a public official to secure a contract to obtain a favorable lease with the City. Lifeline complains that the statement is false because 401 Public Safety owns the Eastgate Mall site and Lifeline does not have a lease with the City of Indianapolis. Ray raised an affirmative defense under Indiana Code chapter 34-7-7, the Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute and filed a motion to dismiss the complaint. Ray argued that the flyer contains speech on a public issue or a matter of public interest, and that he acted in good faith and with a reasonable basis in law and fact when making the statements contained in the flyer. As required by the Anti-SLAPP statute, the trial court treated the motion as a motion for summary judgment. After the trial court held a hearing on the motion, the court entered summary judgment in Ray’s favor. Lifeline and 401 Pubic Safety now appeal. The Scheduled Panel Members are: Judges Baker, Kirsch, and Mathias. [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.
Ind. Decisions - Tax Court ruling from last Thursday
In Zimmer, Inc. v. Indiana Department of State Revenue, a 10-page opinion dated April 13, 2017, Judge Wentworth writes:
Zimmer, Inc. has challenged the Indiana Department of State Revenue’s assessments of use tax for the 2009, 2010, and 2011 tax years (the “years at issue”). The matter is currently before the Court on the parties’ cross-motions for summary judgment. The dispositive issue is whether Zimmer’s Indiana activities regarding its exhibition booth components constituted a taxable use or non-taxable storage for use outside the state during the years at issue. * * *
The undisputed material facts establish that Zimmer stored its exhibition booth components in Indiana for subsequent use solely at out-of-state trade shows, but that it repaired some exhibition booth components in its Indiana warehouse on an as-needed basis. Accordingly, the Court GRANTS summary judgment in favor of Zimmer on those exhibition booth components that were stored in Indiana for subsequent use solely outside Indiana. The Court GRANTS summary judgment in favor of the Department, however, on those exhibition booth components that were repaired in Indiana during the years at issue.