Thursday, June 07, 2007

Ind. Decisions - Court of Appeals issues 2 today (and 17 NFP)

For publication opinions today (2):

In Norman R. Carlson, Jr., et al v. Sweeney, Dabagia, Donoghue, Thorne, James & Pagos, et al, a 28-page opinion dealing with questions of alleged attorney malpractice in will drafting, Judge Robb writes:

Norman R. Carlson, Jr., individually, and as executor of the estates of Norman R. Carlson and Hilda D. Carlson, and as Trustee of the Trust established under the last wills and testaments of Norman Sr. and Hilda, Margaret Ann Carlson, Beth Carlson Montigue, and David R. Carlson, (when referred to collectively, the “Carlsons”), filed a complaint against the law firm of Sweeney, Dabagia, Donoghue, Thorne, Janes and Pagos, and lawyer John H. Sweeney (the “Lawyers”), alleging legal malpractice that resulted in adverse tax consequences. The Lawyers filed a motion for summary judgment, raising two issues. The trial court denied the Lawyers’ motion as to one issue, but granted it as to the other. The Carlsons now appeal, raising a single issue, which we restate as whether the trial court properly granted summary judgment based on its determination that reformations to the Wills drafted by the Lawyers effectively eliminated any malpractice that occurred relating to the drafting of the original Wills. On cross-appeal, the Lawyers raise a single issue, which we restate as whether the trial court properly denied its motion for summary judgment on the grounds that the original Wills would result in adverse tax consequences. The Lawyers also raise the following issues: 1) whether the “substantial adverse interest exception” protects the Carlsons from adverse tax consequences; 2) whether the Carlsons have brought this suit too early, as the IRS has not yet assigned a tax penalty; and 3) whether the trial court improperly considered the opinion of an attorney hired by the Carlsons. We conclude the adverse interest exception does not protect the Carlsons, the Carlsons are not precluded from bringing their suit at this time, and that the Lawyers waived their argument relating to the opinion of the expert witness by not raising it before the trial court. We further conclude that the trial court properly found that the original Wills would result in adverse tax consequences, and affirm the trial court’s denial of the Lawyers’ motion for summary judgment on that issue. However, we conclude that the reformations did not effectively avoid potential adverse tax consequences, reverse the trial court’s grant of summary judgment on that issue, and remand for further proceedings. * * *

Conclusion We conclude that the trial court properly determined that the original Wills did not establish an ascertainable standard regarding a Trustee’s ability to invade the trust corpus; that the “adverse interest” clause does not protect the Trust from tax liability; and that the Carlsons did not bring this suit prematurely. Therefore, we affirm the trial court’s denial of the summary judgment motion on these grounds. We also conclude that the reformations did not comport with Indiana law, and that the trial court therefore improperly granted summary judgment. We therefore reverse the trial courts grant of summary judgment and remand for further proceedings.

Chaffew James Curtis Scott v. State of Indiana - "To find Scott guilty of both forgery and money laundering requires proof of at least one unique evidentiary fact. Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002). For Scott’s forgery conviction, the unique fact is that Scott uttered or presented a forged check to the bank to be deposited into his account. For Scott’s money laundering conviction, the unique fact is that Scott agreed to facilitate a broader money-laundering scheme, wherein he agreed to receive and deposit altered checks. In addition, Scott agreed to wire ninety percent of the money overseas, or in other words to facilitate the transaction involving criminal proceeds. Scott did indeed receive a check from Lau for $68,000 in furtherance of this scheme. Because each conviction was established by at least one unique evidentiary fact, we conclude that Scott’s convictions do not violate Indiana’s prohibition against double jeopardy. Conclusion Scott’s convictions are supported by sufficient evidence and they do not violate Indiana’s double jeopardy clause."

NFP civil opinions today (5):

Involuntary Term. of Parent-Child Rel. of L.D., and Natasha Bowman and Larry Dennison v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - termination, affirmed.

Involuntary Term. of Parent-Child Rel. of K.T. and Dennis Brown v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - termination, affirmed.

In Christy Gehrig v. Mary Jefferson (NFP), a 10-page, 2-1 opinion, Judge Mathais writes for the majority:

Christy Gehrig (“Gehrig”) appeals the Allen Superior Court’s denial of her motion for attorney’s fees under the qualified settlement offer statute. Concluding that a defendant may incur attorney’s fees even though a third party pays such fees on the defendant’s behalf, we reverse and remand for proceedings consistent with this opinion. * * *

On appeal, Gehrig maintains that a party is not required to personally pay the legal costs for his or her representation in order to be eligible for an award of attorney’s fees under the QSO statute. Jefferson, on the other hand, contends that the word “incurred” in the statute must be narrowly construed to signify that only a party who has personally paid such attorney’s fees may recoup them under the statute. * * *

Our court recently interpreted the language “incurred by the offeror” in Scott v. Irmeger, 859 N.E.2d 1238 (Ind. Ct. App. 2007). In Scott, we determined that a defendant may incur attorney’s fees even though a third party pays such fees on his or her behalf, entitling the defendant to recover attorney’s fees under the QSO statute. * * *

In the case at hand, Jefferson refused to settle for any amount less than $7500. Yet, the jury awarded Jefferson no damages. Believing that the QSO statute would not apply to her case, Jefferson forced Gehrig to incur more than $13,000 in attorney’s fees in preparation for a jury trial. A primary purpose behind the QSO statute is to provide the offering parties with leverage to encourage the other party to seriously evaluate the merits of his or her case. Scott, 859 N.E.2d at 1241. Accordingly, we conclude that the trial court should have awarded attorney’s fees to Gehrig under the QSO statute. Reversed and remanded for proceedings consistent with this opinion.

KIRSCH, J., concurs. SHARPNACK, J., dissents with separate opinion [which begins:] By the happenstance of our case assignment system, this case was assigned to the same panel as Scott v. Irmeger, 859 N.E.2d 1238 (Ind. Ct. App. 2007), reh’g denied. In that case, the trial court awarded attorney fees to the defendant from the plaintiff. Here, the trial court refused to award attorney fees to the defendant. In each case, the defendant was represented by an attorney employed and selected by the defendant’s insurance company. I dissented in Scott, and I dissent here.

Termination of Parental Rights of T.W., I.W., and D.W., and Clinton Walden v. Gibson Co. Child Services (NFP) - termination, affirmed.

Henry Booker v. Bartholomew Co. Dept. of Child Services (NFP) - termination, affirmed.

NFP criminal opinions today (12):

Stephen E. Koscher v. State of Indiana (NFP)

Mark A. Jones v. State of Indiana (NFP)

Mark A. Jones v. State of Indiana (NFP)

Ferid Ogresevic v. State of Indiana (NFP)

Donna Harlow v. State of Indiana (NFP)

Ralph Wood v. State of Indiana (NFP)

Sergio Campos v. State of Indiana

Anibal Saravia v. State of Indiana (NFP)

Eddie Lee Strong v. State of Indiana (NFP)

Jeffery D. Banter v. State of Indiana (NFP)

Willie Ray Lee v. State of Indiana (NFP)

Darmon Graves, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on June 7, 2007 01:26 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One today from the 7th Circuit

In U.S. v. Jeremy D. Hagenow (ND Ind., Robert L. Miller, Jr., Chief Judge), a 7-page opinion, Judge Williams writes:

In this appeal, we consider for the second time Jeremy Hagenow’s sentence for his conviction of being a felon in possession of a firearm and ammunition. At the initial sentencing hearing, the government introduced an affidavit attached to an information to demonstrate that Hagenow’s prior conviction for criminal confinement was for a “crime of violence” within the meaning of the sentencing enhancement provided in U.S.S.G. § 2K2.1. Subsequent case law made clear that such an affidavit was not an acceptable way of showing that a conviction constituted a crime of violence. At the sentencing hearing on remand, the government introduced instead the plea colloquy transcript from Hagenow’s criminal confinement matter. Because we conclude that the district court properly allowed the government on remand to introduce, for the first time, the plea colloquy transcript in support of its argument that the conviction was for a crime of violence, we affirm. * * *

We are satisfied that only after the initial sentencing did case law make clear that the affidavit should not have been utilized to demonstrate that Hagenow’s prior conviction constituted a crime of violence for the purposes of a sentencing enhancement. We believe this intervening case law warrants a departure from the general rule that the government does not receive multiple opportunities to present evidence in support of a sentencing enhancement. As a result, the district court did not err when it allowed the government to introduce the plea colloquy for the first time on remand.

Posted by Marcia Oddi on June 7, 2007 10:32 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals postings

Well, the Court of Appeals has already posted 16 opinions this morning, mostly criminal NFPs. As regular readers may recall, the ILB used to summarize these cases as soon as they were available.

But it was burned once too often by additional opinions being added by the Court throughout the day. Nothing wrong with that, but unfortunately these newly added cases are intermingled on the Court's site with the earlier added cases of the same date, so that picking them out required the ILB to log on often and visually compare the Court site list case-by-case with the cases the ILB had already summarized, a time consuming effort that the ILB now avoids by waiting until early afternoon to access the by-then hopefully completed list.

This also allows the ILB to arrange the opinions into the categories of For Publication and NFP (civil and criminal).

Posted by Marcia Oddi on June 7, 2007 09:11 AM
Posted to Ind. App.Ct. Decisions

Ind. Law - A twist on: Do the changes to the sex offender law mean longtime homeowners must move?

Following up on ILB coverage of Lafayette Journal & Courier reports on the effects of the sex offender law, Dionne Waugh has a story today in the Fort Wayne Journal Gazette that begins:

Indiana taxpayers are apparently paying for at least six sex offenders to live in two Allen County motels indefinitely after they were forced to move out of the Fort Wayne Rescue Mission.

When legislators declared the Rivergreenway a park last year, it meant most convicted sex offenders could not live within 1,000 feet of it, in accordance with state law. The Rescue Mission is within 1,000 feet of a stretch of the greenway.

Law enforcement did not start enforcing that law until last week, however, and the sex offenders on probation or parole were forced to leave the shelter Friday.

According to two of those offenders and the Rescue Mission, the state is paying for the offenders’ accommodations for an undetermined period.

Posted by Marcia Oddi on June 7, 2007 08:47 AM
Posted to Indiana Law

Ind. Courts - "Typo prompts appeals court to order new murder trial" [Updated]

The AP reports on the Court of Appeals decision Tuesday in Tony Perry v. State of Indiana (ILB entry here - 4th case):

INDIANAPOLIS (AP) — An error in a typewritten response to jurors’ questions helped lead to an appeals court ordering a new trial for a murder defendant.

The state Court of Appeals in a 2-1 ruling Tuesday reversed Tony Perry’s 2006 murder conviction and his 70-year prison sentence.

Perry, 23, was convicted in Marion Superior Court of shooting two men — one fatally — in an attempted drug buy on Indianapolis’ east side in March 2005.

During deliberations for his July trial, the judge declared jurors had reached an impasse and allowed them to submit questions to resolve it. The jurors submitted four questions centering on testimony that could have implicated Perry as the triggerman.

The typewritten response to jurors’ questions inadvertently switched Perry’s name with that of a witness, and defense attorneys argued that made it appear that Perry had admitted to firing shots.

Chief Judge John Baker and Judge Ezra Friedlander decided that the trial judge acted too swiftly in declaring an impasse and that the typewritten error might have influenced the jury’s verdict, and voted to overturn the conviction.

Judge Terry Crone dissented, saying that Perry’s attorney should have objected to the typographical error at the time of the original trial.

“I find it extremely unlikely that the typo misled the jury and resulted in Perry’s conviction,” Crone wrote in a dissenting opinion.

[Update] This from Editorial Briefs in the Fort Wayne News Sentinel, headed "A Costly Error":

Somebody in the Marion Superior Court system could probably use some proofreading skills. The Indiana Court of Appeals has reversed Tony Perry’s 2006 murder conviction and his 70-year prison sentence because of an error in a typewritten response to jurors’ questions. During deliberations, the judge declared that jurors had reached an impasse and allowed them to submit questions to resolve it. The jurors submitted four questions, and the typewritten response to the questions inadvertently switched Perry’s name with that of a witness, and defense attorneys argued that made it appear that Perry had admitted to firing shots. It’s probably a stretch to say that a jury that had heard all the trial testimony would be misled by a simple switching of names. But two of the three appeals court justices decided otherwise, proving that all those teachers who said, “Pay attention – you will need this later in life,” were probably right.

Posted by Marcia Oddi on June 7, 2007 08:17 AM
Posted to Indiana Courts

Ind. Gov't. - General Assembly sets priorities for summer studies

Niki Kelly of the Fort Wayne Journal Gazette reports today in a story that begins:

INDIANAPOLIS – Legislative leaders Wednesday determined which issues lawmakers will tackle in various summer study committees but held off on examining various problems surrounding the Indiana Toll Road lease.

The Indiana Legislative Council – headed by Senate President Pro Tem David Long, R-Fort Wayne – approved the other topics unanimously.

They include:

Imposition of the death penalty on the mentally ill

Vehicle crashes involving commercial motor vehicles

Various annexation issues

The use of judicial mandates

Evaluation of economic development incentives enacted in 2001

Whether the Indiana Gaming Commission has the authority to grant permission for riverboats to operate on barges

Confined feeding operations

Posted by Marcia Oddi on June 7, 2007 08:03 AM
Posted to Indiana Government

Ind. Courts - Update on: Evansville lawyer sentenced in misdemeanor case

Updating this ILB entry from April 6th, Kate Braser of the Evansville Courier & Press reports today:

An Evansville attorney accused of having a meth lab in his law office and apartment is now suspended from practicing law.

The Indiana Supreme Court issued Brad Happe's suspension this week, effective immediately and until further order by the court.

Happe, 30, is facing charges for conspiracy to commit dealing in methamphetamine, a Class B felony, and dealing in methamphetamine, a Class B felony.

According to state court documents, the Supreme Court was asked in April to consider ordering an interim suspension after two-thirds of the Indiana State Supreme Court Disciplinary Commission reportedly voted Happe could pose a threat to his clients.

The Disciplinary Commission is responsible for investigating and prosecuting claims of misconduct against lawyers. The commission is also responsible for protecting lawyers against unwarranted claims of misconduct. * * *

Happe's case in Vanderburgh County continues. He rejected a plea agreement last month, and his attorney withdrew from the case.

Access the "Order of Interim Suspension from the Practice of Law" here.

Posted by Marcia Oddi on June 7, 2007 07:56 AM
Posted to Indiana Courts

Ind. Courts - More on: French Lick casino disputes continue to be aired in Orange Circuit Court

In this ILB entry from Jan. 10, 2007, a quote from the Bedford Times-Mail begins:

PAOLI — Lawyers outnumbered spectators Tuesday during a daylong Orange Circuit Court hearing further delving into the bitter dispute between the partners that developed the French Lick Springs Resort Casino.

Orange Circuit Judge Larry Blanton let both sides know he wished they could settle their differences outside the courtroom.

“Sometime, someplace, someone from Cook and someone from Lauth is going to have to sit down and bring some common sense and resolution to this matter,” the judge said. “What we have here is an economic and financial divorce in the making. Let’s either get on with it, or kiss and make up.”

Now apparently they have. This story today by Kevin O'Neal in the Indianapolis Star reports:

A dispute over control of the French Lick resort and casino appeared to be over Wednesday when Bill Cook's casino company agreed to buy out its partner in the project.

Orange County Holdings, backed by Cook, will buy out Lauth Resorts and Casinos, a company headed by Bob Lauth, CEO of Lauth Property Group.

The disagreement between Cook, a medical supplier headquartered in Bloomington, and Lauth, one of the state's largest private developers, had seen lawsuits and injunctions from both sides.

The two became partners in 2005, winning the last of Indiana's 11 casino licenses after a group involving Donald Trump had to back out.

By April 2006, Lauth and Cook were having conflicts over the project. They turned to an arbitration panel as well as an Orange County judge.

Posted by Marcia Oddi on June 7, 2007 07:36 AM
Posted to Indiana Courts

Law - Valuable information on legal research

As someone who does a lot of legal research, I was surprised and pleased when reviewing the responses to this post by Eugene Volokh yesterday to find some hints and a number of links that were new to me. Check it out.

Posted by Marcia Oddi on June 7, 2007 07:27 AM
Posted to General Law Related

Law - "U.S. Attorneys Flock to Animal Law"

The National Law Journal, in a story by Lynne Marek, reports today in an account that begins:

The practice of animal law is expanding in the United States as animal rights advocates build up law school studies in the area and ramp up litigation.

"It's growing really fast, and faster than we can probably keep up with," said Jonathan Lovvorn, who leads the Humane Society of the United States' litigation department and has quadrupled his staff to 12 during the past two years.

Work by groups such as the Humane Society and the Animal Legal Defense Fund is encouraging student and attorney interest and funneling it into legal activity. Lovvorn's department has 40 cases pending around the country and has handled 100 since starting in January 2005.

Lawyers in the area say that the public is increasingly interested in staking out legal protections for animals, and that courts are more receptive to such arguments than they have been in the past. They also credit a rise in law school interest, buoyed by $7 million in support for animal law courses from a foundation set up by "The Price is Right" television show host Bob Barker.

University of Michigan Law School is likely to become the next recipient of a $1 million Barker grant, which would be the eighth since 2001.

Georgetown University Law Center is using its grant to fund a clinic that will give students credit for working with the Humane Society's litigators. The money will also be used for a fellowship at the society for a graduate and an animal law conference next year.

Harvard Law School, Columbia Law School, Duke University School of Law, Northwestern University School of Law, University of California at Los Angeles School of Law and Stanford Law School have also received Barker grants, said Henri Bollinger, a spokesman for the TV host. * * *

Bruce Wagman, an attorney in the San Francisco office of Chicago-based Schiff Hardin who brings cases for the fund, said he turned his attention nearly full time to animal law about three years ago because of rising demand. Owners setting up trusts for their pets to be taken care of after they die is an example of the kind of work that is increasing, he said.

The ILB has had several past entries about animal law. See this ILB entry from Sept. 16, 2005, headed "Legal Aid for Animals", and this one from Sept. 3, 2006, headed "New Breed of Lawyer Gives Every Dog His Day in Court ".

Posted by Marcia Oddi on June 7, 2007 06:40 AM
Posted to General Law Related

Wednesday, June 06, 2007

Ind. Decisions - 7th Circuit issues one Indiana opinion today

Griffin and Yarden v. Sisters of Saint Francis (SD Ind., Richard L. Young, Judge), is a 12-page, per curiam opinion that begins:

Charles Griffin and Julia Yarden were fired from their jobs at Michaela Farm in Oldenburg, Indiana. The farm is owned and run by the Sisters of Saint Francis (“SOSF”), an order of Catholic nuns. Griffin, who had worked on the farm for nearly four years, and Yarden, who had been there for just a few months, believed that they were terminated because Yarden was pregnant, and they sued SOSF under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (“PDA”). They lost on summary judgment, and on appeal, Griffin and Yarden—who proceed pro se—argue that they provided ample evidence that their supervisor knew of Yarden’s pregnancy, fired the couple for that reason, and offered pretextual reasons for the decisions. For the reasons that follow, we affirm the judgment of the district court.

Posted by Marcia Oddi on June 6, 2007 01:29 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 3 NFP)

For publication opinions today (6):

In GPI at Danville Crossing v. West Central Conservancy District , a 15-page opinion, Judge Najam writes:

GPI at Danville Crossing, L.P. (“GPI”), appeals from the trial court’s entry of summary judgment in favor of West Central Conservancy District (“the District”) on GPI’s claim for injunctive relief. GPI presents two issues for our review: 1. Whether the trial court erred when it concluded that the District’s classification of GPI as a “residential user” was not arbitrary and capricious. 2. Whether the trial court erred when it concluded, in effect, that the District’s method of calculating penalties was not contrary to law. We affirm in part, reverse in part, and remand with instructions. * * *

[I] In sum, GPI cannot show that the District’s classification of Settler’s Run was arbitrary and capricious. Indeed, GPI does not make any argument that the District lacked a rational basis for the classification. And the undisputed evidence shows that the District has classified all apartment complexes as residential users under Res. 02-02. See Brewer, 839 N.E.2d at 703 (noting “a consistently applied policy weighs against the notion that it is arbitrary”). Because Settler’s Run fits the District’s definition of residential user, it was neither arbitrary nor capricious for the District to classify it as such. * * *

[II] Here, we hold that the language in Indiana Code Section 36-9-23-31 is clear and unambiguous. The statute does not provide for compounding penalties. Rather, a single penalty of 10% is applied to the total amount of delinquent fees. * * *

But we conclude that there is nothing reasonable or logical about compounding penalties where the statute does not so provide. The legislature intended to penalize non-payment of sewage fees, but limited that penalty to 10% of the total delinquent fees. As such, the District is not authorized to invoke its residual powers to compound the statutory penalty on which the Legislature has spoken. We reverse the trial court’s grant of summary judgment on the issue of the amount of fees and the total penalty GPI owes the District. We remand for a hearing to determine the amount of delinquent fees owed, plus a 10% penalty on that total amount, plus reasonable attorney’s fees.

In Walter Thompson v. Mark Hays , a 9-page opinion, Judge Robb writes:

Walter Thompson sued Mark Hays, seeking a declaratory judgment that Hays was holding two lucrative offices and also seeking an order that Hays reimburse the county for the compensation he received for one of the offices during the time of dual office-holding, plus treble damages. Hays filed a motion to dismiss, which was granted by the trial court. Thompson appeals, raising the sole issue of whether the trial court properly granted the motion to dismiss. Concluding that Hays was not holding two lucrative offices because a sheriff’s deputy is an employee, not a public officer, we affirm the decision of the trial court. * * *

Our decision that deputy sheriffs are employees is consistent with both existing case law and legislative intent. As Gaskin noted, prior case law had already determined that city police officers are employees rather than public officers. 622 N.E.2d at 528. Gaskin itself decided that deputy town marshals are employees. Id. There is nothing significantly different about sheriff’s deputies and city police officers or deputy town marshals and no compelling reason to come to a different conclusion herein. Moreover, we note that the legislature has expressed a clear intent that sheriff’s deputies be considered employees. Indiana Code section 36-8-10-11(c)(1) provides that a county police officer may “be a candidate for elective office and serve in that office if elected.” Indiana Code section 5-6-4-3, which neither party cited in their briefs to this court and upon which we therefore do not rely, states that “[f]or purposes of Article 2, Section 9 of the Constitution of the State of Indiana, the position of appointed deputy of an officer of a political subdivision . . . is not a lucrative office.”10 Conclusion For the reasons stated herein, we hold that a sheriff’s deputy is not the holder of a lucrative office for purposes of Article II, section 9. The trial court’s decision dismissing Thompson’s complaint for failure to state a claim is, therefore, affirmed.

In Green Tree Servicing, LLC v. Random Antics, LLC and Auditor/Treasurer of Delaware County, a 14-page opinion, Chief Judge Baker writes:

Today, we hand this case down along with Green Tree Servicing, LLC v. Auditor and Treasurer of Howard County, No. 34A02-0608-CV-679 (Ind. Ct. App. June 6, 2007), which involves the notice requirements of the distribution of surplus funds following a tax sale of real property. In this case, appellant-third-party-plaintiff Green Tree Servicing, LLC (Green Tree) f/k/a Conseco Finance Servicing Corp., appeals the trial court’s summary judgment order and quiet title decree in favor of appellee-counterclaim-defendant Random Antics LLC, (Random Antics), and appellees-third-party-defendants the Auditor of Delaware County (Auditor) and the Treasurer of Delaware County (Treasurer) (collectively, the appellees), regarding the right to possession of a mobile home. Specifically, Green Tree claims that the grant of summary judgment in the appellees’ favor was erroneous because Green Tree was entitled to possession of the mobile home. Moreover, Green Tree contends that its right to due process was violated when it was not provided with notice of the existence of tax sale surplus funds or of an individual’s claim for the surplus funds. As a result, Green Tree argues that the Auditor and Treasurer negligently disbursed the surplus funds.

We conclude that the trial court erred in granting the appellees’ motion for summary judgment with regard to the possession of the mobile home. However, we affirm the trial court’s entry of summary judgment as to notice regarding the distribution of the tax sale proceeds, and conclude that the Auditor and Treasurer were not negligent in disbursing those funds. Thus, we reverse in part, affirm in part, and remand this cause to the trial court with instructions to enter judgment for Green Tree with regard to the possession of the mobile home and for further proceedings consistent with this opinion.

In Green Tree Servicing, LLC v. Auditor/Treasurer of Howard County - a 7-page opinion, Chief Judge Baker writes:

Today we hand this case down along with Green Tree Servicing, LLC v. Random Antics, LLC, and Auditor and Treasurer of Delaware County, No. 18A05-0605-CV-233 (Ind. Ct. App. June 6, 2007) (Random Antics), which involves the notice requirements of the distribution of surplus funds following a tax sale of real property.

In this case, appellant-plaintiff Green Tree Servicing, LLC (Green Tree), appeals the trial court’s grant of appellees-defendants’ Howard County Auditor (Auditor) and Howard County Treasurer’s (Treasurer) (collectively, the appellees) motion to dismiss Green Tree’s claim against the appellees regarding the disbursement of tax sale surplus funds to a third party following a sale of real estate. As in Random Antics, Green Tree argues that its due process rights were violated when it was not given notice of the existence or establishment of a tax sale surplus fund. Thus, Green Tree asserts that the appellees were negligent in distributing the tax sale surplus funds to delinquent taxpayers rather than to the mortgagee of record. Concluding that the appellees’ motion to dismiss was properly granted, we affirm the judgment of the trial court.

Robert Lynn Company, Inc. v. Town of Clarksville Board of Zoning Appeals and Town of Clarksville Plan Commission is a 25-page opinion in a case involving the following issues: "I. Whether the BZA’s conditional approval of Lynn’s application for a development standards variance from the local zoning ordinance is valid; II. Whether the BZA’s subsequent revocation of its conditional approval is valid; and III. Whether the Plan Commission should be mandated to approve Lynn’s application for primary approval of an amended plat." The conclusion: "To reiterate, we reverse the trial court’s judgment on the Town’s motion to correct error in part and hold that the BZA issued a valid conditional approval of Lynn’s application for a development standards variance from the zoning ordinance. We affirm the trial court’s judgment in part and hold that the BZA’s revocation of its conditional approval is void. We also hold that any references in Clarksville’s zoning or subdivision control ordinances to the Plan Commission’s authority to grant variances from the subdivision control ordinance are void and ineffective. We remand for the Plan Commission to conduct a hearing and issue a written decision stating its reasons for approving or disapproving the variance conditionally granted by the BZA. If the Plan Commission approves the variance, it may consider Lynn’s application for primary approval of an amended plat for the R-1 Property. We affirm the trial court’s conclusion that mandate is an inappropriate remedy with respect to the plat approval process."

Mustafa Nur v. State of Indiana - "Moreover, the record as a whole does not indicate that Nur was unable to effectively participate in his defense because of the alleged difficulty with English.[14] Nur participated in numerous question-and-answer sessions with the court in English. Nur’s responses in those sessions were “responsive” and “indicative of his ability to speak English.” See Luna, 772 F.2d at 451 (finding that a defendant did not have a language difficulty significant enough to require an interpreter when, other than having some syntactical errors, his testimony was “very responsive” and “indicative of [his] ability to speak and understand English.”). Additionally, and as noted by the trial court in its denial of Nur’s motion for a new trial, neither Nur nor his attorney ever requested an interpreter; Nur communicated with the court in English, both orally and in writing; and the evidence at trial showed that Nur communicated with native English speakers in English when orchestrating the crime. Thus, based on the record, we cannot say that the court had notice that Nur had a significant language difficulty. As such, the court’s failure to appoint an interpreter on its own motion was not fundamental error. See, e.g., Martinez v. State, 451 N.E.2d 39, 41 (Ind. 1983) (holding that it was not error for a trial court to have failed to provide, sua sponte, a competent interpreter where counsel did not request one prior to trial and defendant spoke and understood English well enough to conversantly discuss the crime with a police officer and had no trouble answering questions at the sentencing hearing). We therefore affirm the trial court’s denial of Nur’s motion for a new trial.
_________
[14] There is evidence that Nur had some difficulty understanding certain legal concepts and issues. We are not prepared to hold, however, that this difficulty was due to Nur’s inability to speak or understand English. We agree with the State’s observation that even native English-speaking non-lawyers have difficulty understanding the criminal justice system."

NFP civil opinions today (2):

In the Matter of the Paternity of M.D.D.; Anne McNevin v. David Duncan (NFP) - "Appellant-Petitioner Anne McNevin (“Mother”) appeals a paternity court order that awarded custody of her child, M.D., to Appellee-Respondent David Duncan (“Father”), apportioned costs of the custody evaluation, and determined the child support arrearages of each parent. We affirm in part, reverse in part, and remand."

Jearldine Heffernan v. Bruce B. Heffernan (NFP) - "Mother argues that Father failed to meet his burden of proving that Zachary was emancipated. Concluding that the trial court properly determined that Zachary was emancipated under subsection (a)(3) of the emancipation statute, Indiana Code § 31-16-6-6, because Zachary was eighteen years old, was not attending nor enrolled in school for a four-month period of time, and was capable of supporting himself through employment, we affirm the judgment of the trial court."

NFP criminal opinions today (1):

Richard W. Collier v. State of Indiana (NFP)

Posted by Marcia Oddi on June 6, 2007 12:34 PM
Posted to Ind. App.Ct. Decisions

Law - "Wellpoint’s Lawyer-CEO Takes Reins, Faces Challenges"

The WSJBlog this morning features Indianapoplis-based WellPoint's new CEO, Angela Braly. The entry begins:

We kvelled in February when WellPoint named lawyer Angela Braly as its CEO, making it the largest U.S. company run by a woman. Now just days into taking over the reins, the 45-year-old Braly is having to flex those lawyer muscles big time.

Earlier this week, two days before she officially assumed the CEO post, Braly and the outgoing chief asked WellPoint’s well-regarded CFO, David Colby, to resign for violating the health-insurance giant’s code of conduct. What led to his departure? It’s unclear, but the company says the violation wasn’t illegal and didn’t affect the company’s business. The WSJ reports that Colby’s entangled personal life might have had something to do with his being asked to step down.

Posted by Marcia Oddi on June 6, 2007 09:35 AM
Posted to General Law Related

Courts - More on: What is left for the Supreme Court to decide this term?

Updating the ILB entry from June 3, Marcia Coyle of The Nation Law Journal has a very comprehensive survey today of what the expect in the few remaining weeks of this term. She also looks at the "most significant rulings thus far."

And SCOTUSblog has just announced a new edition of its StatPack, with added features. But to go directly to one feature, the 9-page Outstanding Cases for OT06 (October Term 2006 - Pending Merits Cases), click here.

Posted by Marcia Oddi on June 6, 2007 06:38 AM
Posted to Courts in general

Ind. Law - More on: Do the changes to the sex offender law mean longtime homeowners must move?

Following up on its stories last month on the sex offender law, the Lafayette Journal & Courier has an editorial today headed "Loopholes in offender laws will be tried." A few quotes:

Most parents will go to any extent to keep their children safe, especially from the threat of sex offenders.

But just how far should we restrict child sex offenders' rights? * * *

In Tippecanoe County, the prosecutor's office is following a state law, prohibiting sex offenders from living within 1,000 feet of a school, public park or youth program center. The county is enforcing the law, believing that it requires offenders to move, regardless of whether they committed the offense before or after July 1, 2006, when the law took effect.

Legislation in other states has met different fates.

In Iowa, sex offenders convicted of crimes involving children are barred from living within 2,000 feet of a school or day care center. A group of sex offenders challenged Iowa's legislation, claiming it was unconstitutional but the state's appeals court allowed the law to stand.

However, in Missouri, a Circuit Court judge in Cole County overturned a 2006 law that forced sex offenders to move if they lived near a school, even if they moved in before the change took effect. * * *

And just how often do we have to force sex offenders to move in order to keep our peace of mind?

Take, for example, a sex offender who moves into a rural area and lives peacefully without breaking the law. Years later, sprawl descends around his home, bringing with it new neighbors, a new school and a new park.

Should that sex offender be forced to move, years after paying his debt and staying out of trouble?

The law would seem to say yes.

We support laws that protect our children wisely. We fear this one leaves too many loopholes for exploitation, by both prosecutors and the predators.

One thing, however, is certain about this type of law: Whether it's Iowa's, Indiana's or another state's version, it will surely wind up in the Supreme Court.

Posted by Marcia Oddi on June 6, 2007 06:30 AM
Posted to Indiana Law

Ind. Courts - "Clark, Floyd courts receive interpreter grant"

Jennifer Rigg of the New Albany News and Tribune reports:

Courts in Floyd and Clark counties received a grant from the Indiana Supreme Court which will allow them to hire interpreters for the area’s growing Spanish-speaking population without dipping into the counties’ general funds.

Floyd County received $3,500 that will go into a fund from which all three courts can draw to hire and pay interpreters. Clark County received $2,500. * * *

Floyd County Superior Court Judge Susan Orth said her court applied for the grant for the second year in a row because it was seeing a greater need for interpreters.

“On average, we have four to five cases a month where we would need an interpreter,” Orth said, adding that they use interpreters not only for the Spanish-speaking population, but also for those with hearing impairments. “(This grant) is terribly important. It alleviates a burden that the taxpayers would have to pay because the only other avenue would be to have the money taken from (Floyd County’s) general fund.

Orth went on to say the Indiana Supreme Court had been “very progressive” in its effort to aid counties in hiring interpreters, and also has provided each court with a person’s constitutional rights recorded in Spanish on a CD.

“There’s a lot of things that we can piece together to try and accommodate the particular individual,” Orth said.

On average, Judge Orth and Clark County Superior Court 2 Judge Cile Blau — whose court authored the grant for Clark County — said interpreters are paid $35 an hour for their services. Floyd County often will prorate that amount for intervals of 15 minutes. Clark County requires a minimum of two hours of service, but also pays mileage.

“In the last five or six years, we’ve started seeing more Hispanic individuals in our court,” Blau said, “which, I think, is pretty consistent with the population numbers that we’re seeing.

“We’re very grateful to receive (this money) because the county is strapped for funds,” she continued. “So we appreciate the ability to get these monies.”

A release on the Indiana Courts website begins:

The Indiana Supreme Court has awarded $168,250 in Court Interpreter Grants that will be used in 40 counties to help local trial courts break down language barriers faced by non-English speaking litigants, Chief Justice Randall T. Shepard announced today.

The Supreme Court received 36 applications this year, including two that involved multi-county blocks.

Posted by Marcia Oddi on June 6, 2007 06:24 AM
Posted to Indiana Courts

Tuesday, June 05, 2007

Ind. Decisions - "Does Judge Posner Write Too Much?"

That is the question posed today by the blog, Decision of the Day, referencingJudge Posner's today opinion in Harzewski v. Guidant Corp., which the ILB earlier summarized here (or scroll down one), D of the D writes:

Anyway, Judge Posner writes and writes and writes, often raising and addressing issues that go well beyond what is necessary to decide a particular appeal. Usually his Seventh Circuit colleagues go along for the ride. But not today. In an appeal of a district court decision dismissing an ERISA case for lack of standing, the Seventh reverses, explaining that the plaintiffs do in fact have standing. But Judge Posner can’t stop there. He vacates and “remand[s] with directions” about how the district court should deal with the merits of the action. Indeed, after “clear[ing] a lot of brushwood” on the standing issue, the second half of the opinion deals with all kinds of merits issues including an analysis of how damages should be calculated in ERISA actions, speculation about whether the plaintiffs’ theory of liability will hold water, and even an aside on whether the plaintiffs have a claim for securities fraud against the defendant.

That’s all a bit to much for Judge Ripple, who writes a short concurrence agreeing with the majority’s fine reasoning on the standing issue, but noting that the Court should simply remand without commenting on the merits.

Posted by Marcia Oddi on June 5, 2007 03:20 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides two Indiana cases today

In Harzewski, Erisa v. Guidant Corp (SD Ind., Larry J. McKinney, Chief Judge), a 17-page opinion, Judge Posner writes:

October 2004 to November 2005 was a period, prior to Boston Scientific’s acquisition of Guidant (which took place in April 2006), when according to the complaint the price of Guidant stock was inflated by a fraud committed by the company’s management. The alleged fraud consisted of the concealment of information concerning defects in the company’s implantable defibrillators, which accounted for nearly half its revenues. Very shortly after Boston Scientific’s acquisition of Guidant, the full gravity of Guidant’s problems came to light and the revelation contributed to the drop in the price of Boston Scientific stock from $22.49 when Boston Scientific bought Guidant to $16.33 on May 3 of this year.

The district court dismissed the complaint on the ground that the named plaintiffs have no “standing” to bring this suit because they retired from Guidant and cashed out their pension benefits before the filing of the amended complaint, and so ceased to be participants in the pension plan. The lawyers for the class could, to keep the class action alive, have substituted as named plaintiffs members of the class who remained participants in the plan—current employees. But being unwilling to abandon the claims of class members in the situation of the named plaintiffs, they decided instead to appeal the district court’s ruling. * * *

So the case must go back to the district court. But as its first order of business, that court will have to take a very careful look at the plaintiffs’ theory of how they were injured. * * *

VACATED AND REMANDED, WITH DIRECTIONS.

RIPPLE, Circuit Judge. I am pleased to join that part of the panel’s fine opinion that holds that the district court erred in dismissing this case for lack of standing. In my view, it would be far better, as a prudential matter, to refrain from commentary on the merits at this time. Therefore, I respectfully decline to join that part of the panel’s opinion that addresses the merits of the case.

In Abstract & Title Guaranty Co. v. Chicago Insurance (SD Ind., John Daniel Tinder, Judge), a 9-page opinion, Judge Kanne writes:

This diversity case comes to us after entry of summary judgment in favor of the defendant. The plaintiff appeals. For the reasons set forth below, we affirm. * * *

In summary, a jurisdiction might choose to have a law that prevents an insurer from interpleading the policy limit. Such a law might require that insurers pay claims one at a time in the order that they are filed, or perhaps find some other way to prioritize the claims. Some jurisdictions have chosen such a rule of law, but the Indiana Court of Appeals in Mahan indicates that Indiana is not one of them. Furthermore, a company might choose to buy an insurance policy that requires the insurer to defend even after the policy limits are met, or to prioritize legal fees so that they are paid before other claim expenses and damages. ATG did not choose to buy such a policy, but instead asks the courts to write that requirement into its contract after the fact. We decline to do so. In light of these facts, we agree that summary judgment in favor of CIC was proper on the question of breach of contract. * * *

ATG also argues that CIC has breached its duty of good faith throughout these proceedings. * * * We find ourselves, once again, instructed by the recent decision in Mahan. * * * There, like here, “after investigating the facts and circumstances surrounding the accident, [the insurer] determined that [the insured] was [liable], and . . . most likely would be subject to multiple claims, the total of which would meet, if not exceed, the limits of the policy . . . . [The insurer] did not breach its duty of good faith. ” Mahan, 862 N.E.2d at 677. We see no evidence that leads us to a contrary conclusion in this case.

Posted by Marcia Oddi on June 5, 2007 12:23 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 5 NFP)

For publication opinions today (5):

In The National Mutual Insurance Company, et al. v. Jason Curtis , a 13-page opinion, Judge Riley writes:

National Mutual raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred by concluding that National Mutual’s homeowner’s policy, issued to the Curtises, provided coverage against Beaulieu’s claim for injuries under the personal liability provisions because the policy did not clearly express an exclusion of liability coverage for injuries arising out of the ownership or use of a trampoline. * * *

[H]ere, the confusion does not lie in the policy’s language but rather in the structural ambiguity where the liability coverage and exclusions are inserted in the main policy, with an additional exclusion clause buried in a completely unrelated section fourteen pages later. The structural complexity of the policy as a whole is such that the disputed clause is obscured and a reasonable person would not realize its existence and application, regardless of his duty to read the policy. Accordingly, we hold as a matter of law that the placement of the trampoline exclusion is inconspicuous, amounting to an ambiguity in the policy. Therefore, we affirm the trial court’s Order. See AutoXchange.com, Inc., 816 N.E.2d at 47.

We reiterate that the result reached today does not do violence to the legitimate and understandable interests of insurers in limiting their liability coverage. However, if an insurance carrier desires to exclude coverage, this should be spelled out for the policyholder in clear and unmistakable language with conspicuous and plain positioning.

CONCLUSION Based on the foregoing, we conclude the trial court properly found that National Mutual’s homeowner’s policy, issued to the Curtises, provided coverage against Beaulieu’s claim for injuries under the personal injury provisions because the policy did not clearly express an exclusion of liability coverage for injuries arising out of the ownership or use of a trampoline.

In Mari O. Hunter v. Anne Klimowicz, a 9-page opinion (including a concurring opinion) Chief Judge Baker writes:

Appellant-defendant Mari O. Hunter, individually and as trustee of the Anne Klimowicz Irrevocable Trust (the Trust), appeals from the trial court’s order rescinding the Trust. Hunter raises a number of arguments regarding the rescission of the Trust, focusing on allegations of undue influence and capacity. Finding that Anne lacked proper capacity to create the Trust, we affirm the judgment of the trial court. * * *

We are persuaded that this testimony from Anne’s treating physician establishes that she was not of sound mind and did not have a reasonable understanding of the nature and effect of the act and the terms of the Trust at the time of its creation. Although Anne’s statements recorded at the time of the Trust could be viewed as evidence of her mental capacity, we find them to be ambiguous and note that, at a later date, she could not recall the meeting at all and was perplexed when shown the documents bearing her signature. Under these circumstances, we conclude that the trial court properly ordered that the Trust be rescinded.

DARDEN, J., concurs. ROBB, J., concurs in result with opinion [which begins:] I concur in the result reached by the majority, but write separately to emphasize an important distinction between this case and the typical estate case regarding testamentary capacity.

In Norwood Promotional Products, Inc., et al. v. Thomas B. Roller Judge Darden writes:

This case comes to us on an interlocutory appeal. Norwood Promotional Products Holdings, Inc. * * * appeal the trial court’s denial of their motion to compel arbitration of tort and securities fraud claims alleged by Thomas Roller (“Roller”) under the Indiana Securities Act. We affirm.

ISSUE Whether the trial court erroneously denied Norwood’s motion to compel arbitration of Roller’s alleged complaint for securities fraud and tort claims. * * *

Norwood correctly notes Indiana’s strong policy favoring enforcement of arbitration agreements, and the general view that arbitration agreements should be interpreted in light of that policy. Chesterfield Management, Inc. v. Cook, 655 N.E.2d 98, 102 (Ind. Ct. App. 1995). However, it is not the appellate court’s policy to extend arbitration agreements by construction or implication. Mislenkov, 743 N.E.2d at 289. “The arbitration promise is itself a contract.” Smith v. Meijer, 858 N.E.2d 693, 693 (Ind. Ct. App. 2006). Parties are bound to arbitrate those issues that by clear language they have agreed to arbitrate. Safety Nat., 829 N.E.2d at 1000 (citing Mislenkov, 743 N.E.2d at 289). Herein, the parties’ contract is unambiguous; thus, we give the words used in the contract their plain and ordinary meaning. Accordingly, we find that Norwood has not demonstrated that the parties agreed to submit securities disputes to arbitration.

In Tony Perry v. State of Indiana , a 2-1 opinion, Chief Judge Baker writes:

Appellant-defendant Tony Perry appeals his convictions for Murder, a felony, and Aggravated Battery, a class B felony. Specifically, Perry argues that (1) the trial court erroneously declared the jury to be at an impasse and (2) a scrivener’s error in the trial court’s response to a jury question resulted in “incalculable” prejudice. Concluding that the trial court erroneously declared the jury to be at an impasse and that the scrivener’s error was prejudicial, we reverse the decision of the trial court and remand this cause for a new trial. * * *

We emphasize that a trial court’s typographical error does not necessarily mandate reversal. * * *

Here, however, the evidence of Perry’s guilt was not overwhelming—as demonstrated by the jury’s extensive deliberations—and we cannot say that it would have been improper for the jury to have acquitted Perry because the jury notes make it clear that the jurors were uncertain about the evidence presented at trial. In sum, we cannot say that the trial court’s error did not influence the jury’s verdict, thereby prejudicing Perry and resulting in seventy years of imprisonment. For that reason, we reverse the trial court’s conviction and remand this cause for a new trial. * * *

FRIEDLANDER, J., concurs. CRONE, J., dissents with opinion. [which begins:] “It has been held repeatedly that a defendant is not entitled to a perfect trial, but is entitled to a fair trial, free of errors so egregious that they, in all probability, caused the conviction.” Averhart v. State, 614 N.E.2d 924, 929 (Ind. 1993). I respectfully disagree with the majority’s conclusion that the trial court’s typographical error in its response to Jury Note #4 is so egregious that it warrants the reversal of Perry’s convictions. Therefore, I dissent.

Gregory John Long v. State of Indiana - "Gregory John Long appeals his convictions, after a trial by jury, on one count of corrupt business influence, a class C felony, and two counts of theft, as class D felonies, and the sentence imposed by the trial court thereon. We affirm."

NFP civil opinions today (2):

Mark Lemerick v. Jerry Johns, et al. (NFP) - "The gravamen of Lemerick’s argument is that the trial court erred by concluding that the appellees did not have a fiduciary relationship with Landis that was based on constructive fraud. Finding that a fiduciary relationship did not exist between the appellees and Landis, we affirm the judgment of the trial court."

In Re the Matter of the Termination of the Parent-Child Relationship of K.M., N.M., B.M., M.M. & P.M.; Loretta Harris v. Tippecanoe County Office of Family & Children (NFP) - termination, affirmed.

NFP criminal opinions today (3):

State of Indiana v. Linden Cornewell (NFP)

Lesley Jackson v. State of Indiana (NFP)

Francisco Eguia v. State of Indiana (NFP)

Posted by Marcia Oddi on June 5, 2007 10:51 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: "But by resigning before July 31, Smith also qualifies for lifetime, state-subsidized health insurance"

Updating this ILB entry from earlier this morning, see also: this entry this morning from Mitch Harper's blog, Fort Wayne Observed and This entry this morning from Gary Welsh of the blog Advance Indiana.

See also this March 4th ILB entry titled "Ind. Gov't. - Senate passes a non-transparent and convoluted pay raise bill," which included this discussion:

SECTION 12 amends IC 5-10-8-8, which deals with group health insurance for public employees, including the controversial subsections (f) and (j) concerning health care for legislators. Rather than repealing IC 5-10-8-8.4, which provides that the legislative health care benefit may not be revoked except by the law passed by the General Assembly:

IC 5-10-8-8.4. Revocation or alteration by employer
Sec. 8.4. Except as provided by an enactment of the general assembly, an election by an employer under:
(1) section 8(f) of this chapter concerning the payment of a retired employee's premium; or
(2) section 8(j) of this chapter concerning Medicare coverage and program eligibility;
may not be revoked or altered at any time by the employer or a subsequent employer to the detriment of a person entitled to benefits under section 8.2 of this chapter.
As added by P.L.184-2001, SEC.6.

SB 401 adds a new provision to the end of section 8:

(l) The president pro tempore of the senate and the speaker of the house of representatives may not elect to pay any part of the premium for insurance coverage under this chapter for a former member of the general assembly or the spouse of a former member of the general assembly whose last day of service as a member of the general assembly is after July 31, 2007.

Q - What does all this mean? A - It seems to mean that the existing health plan remains in place for retired legislators, their spouses, and employees, but legislators (and their spouses) retiring after this July will not be covered.

Q- Didn't the leadership revoke the plan last year - does this extend it another year? A - I don't know.

Posted by Marcia Oddi on June 5, 2007 10:23 AM
Posted to Indiana Government | Legislative Benefits

Ind. Decisions - Warrick County court reporter finishes transcript [Updated]

The transcript is in. (This is an update to the ILB entry from earlier this AM.)

Ryan Kircher of WHAS11News out of Louisville reported at 9:43 AM in the Camm-Boney Murder Trials Blog:

Mary Kennedy, the court reporter for the Warrick County Superior Court #2 in Boonville, Indiana, submitted the transcript of the second David Camm murder trial late yesterday afternoon.

By filing the transcript before the end of the business day yesterday, Kennedy effectively avoids potential legal charges. The Indiana Supreme Court granted her three extensions to file the transcript of the two-month trial, which was expected to weigh in at roughly 10,000 pages.

In the Indiana Supreme Court's last order, issued Friday, the court said that if Kennedy failed to meet yesterday's deadline, she would "be ordered to appear before this court in person to show cause why she should not be held in contempt."

The transcript was completed at the last minute. As of 4:00 yesterday afternoon, it had yet to be filed. Kennedy was able to meet the deadline because the filing office was open late yesterday due to traffic court.

Now that the transcript has been filed, the clock begins ticking again -- this time for the defense team. Starting today, Camm's attorneys have 30 days to file the official brief outlining their arguments for appeal.

Katharine Liell, Camm's lead defense attorney, has previously indicated that she herself will ask for a 90-day extension to file this brief.

[Updated] Here is an update now filed by the LCJ reporting the filing.

Posted by Marcia Oddi on June 5, 2007 10:06 AM
Posted to Ind. Sup.Ct. Decisions

Courts - "Supreme Court Declines Case of Ala. Leukemia Victim's Widow"

From an AP story reported today at Law.com:

The widow of a leukemia victim failed to persuade the Supreme Court Monday to consider allowing her to sue oil companies over her husband's exposure to a toxic chemical, a case her lawyer calls a legal "Catch 22" in Alabama.

The justices without comment declined to take up the case of Martha Jane Cline, who is trying to hold the companies accountable for her late husband's health problems. Jack Cline, of Vance, Ala., died in January.

The Alabama Supreme Court ruled that he waited too long to sue, even though Cline didn't know he was sick until after the deadline to sue had passed. Cline's attorney, Robert Palmer, who has filed many suits in other states over exposure to toxic chemicals, said all other states have a time limit that begins when a person learns of an illness.

Alabama courts have held there is a two-year window period to file a lawsuit from the last exposure to toxic chemicals, but they also have held there must be an injury before a lawsuit is filed. There was never a time when Cline, a longtime chemist who blamed exposure to benzene for his illness, could have filed suit because the two-year deadline passed in 1989 and he wasn't diagnosed with the disease until 1999. * * *

The case is Cline v. Ashland, Inc., 06-1329.

Posted by Marcia Oddi on June 5, 2007 10:03 AM
Posted to Courts in general

Law - "Test Case Linking Vaccines and Autism Reaches Federal Court"

Tony Mauro of The Legal Times has a long and very informative story today headed "Test Case Linking Vaccines and Autism Reaches Federal Court." Here are a few quotes:

On June 11, the case of Michelle Cedillo * * * goes before an extraordinary tribunal assembled by the U.S. Court of Federal Claims. Its goal is to determine, for the first time in a judicial proceeding, whether the combination of certain vaccines and thimerosal, a mercury-based vaccine preservative, can cause autism -- a set of disorders that is gaining attention as more and more children are diagnosed, as many as one in 150 children born in the United States. The government has long denied such a link exists. * * *

Cedillo v. Secretary of Health and Human Services was picked as a test case from more than 4,800 autism claims that have been filed with the little-known court, which sits anonymously overlooking Lafayette Square near the White House. The outcome of the case, the court hopes, will guide the disposition of other claims and prevent the need for repetitive discovery and expert witness testimony.

The determination also could shake -- or bolster -- public confidence in the vaccine system and affect autism litigation worldwide.

During three weeks of testimony, the hotly contested issue of causation will be advanced and picked apart by expert witnesses. A sign of the emotions infused into the case: The court sealed the names of the witnesses, for fear they would be harassed.

The trial before three special masters will take place in a 400-seat courtroom that may be filled with parents and their lawyers, as well as lawyers and lobbyists for the pharmaceutical industry, which has a huge but indirect stake in the case. Special arrangements have been made to enable out-of-town parents to listen to the trial by phone, and transcripts and audio of the trial will be made available online. * * *

The question of whether thimerosal leads to autism did not surface widely until the late 1990s. Parents and autism groups now point angrily to both government and drug company documents that show questions were being raised years earlier about the safety of the mercury preservative. Environmentalist Robert F. Kennedy Jr. wrote a controversial Rolling Stone article in 2005 accusing the government of "whitewashing" evidence of thimerosal's effects.

But the government, while phasing out the use of mercury preservatives in most vaccines, still says there is "no evidence of harm" from thimerosal. A 2004 study released by the Institute of Medicine, founded as part of the National Academy of Sciences, said the accumulation of scientific evidence "favors rejection of a causal relationship."

For many, that closed the debate, but for parents, bolstered by new studies that reach the opposite conclusion, as well as their own experiences, the connection is still apparent. Future test cases before the claims court will examine whether thimerosal alone, or the MMR vaccine alone, can also cause autism.

The Cedillo trial is a crucial moment not only for the causation issue but for the vaccine compensation system, devised by Congress in 1986 to limit the liability of vaccine makers.

Broad-based vaccination is one of the success stories of the 20th century, effectively killing off diseases ranging from smallpox to polio that used to afflict millions. The compensation system was meant to handle the rare but inevitable injuries that result from allergic and other reactions to vaccines. Under the 1986 law, instead of suing manufacturers, those injured by vaccines file claims against the government in the federal claims court -- which some call the "Vaccine Court."

Special masters acting as trial judges hear individual cases and award damages once a causal connection has been made. Pain and suffering damages are capped at $250,000, but lost wages, medical and educational costs, and lawyers' fees can all be compensated. Awards can top $1 million, and more than $750 million has been paid out since the program began.

But nobody envisioned the torrent of autism claims. * * *

If causation is shown, where will the money to compensate victims come from? Under the program, patients pay a 75 cent excise tax for each vaccine, which adds $200 million to a compensation fund each year, for a current total of $2.5 billion.

So the autism litigation, even if successful, won't actually cost the pharmaceutical industry a dime. And no drug-company lawyer will have a formal role in the upcoming trial. Yet the drug companies will be watching.

One concern the companies have is the effect the case might have on public confidence in vaccines generally, says Randolph Moss, a partner at WilmerHale who advises pharmaceutical industry clients on vaccine issues. "This trial is a big deal from a public health perspective," Moss says. "There could be very dramatic public health consequences if the judges were to conclude, despite the strong scientific evidence to the contrary, that there is some connection between vaccines and autism or similar neurological disorders."

Posted by Marcia Oddi on June 5, 2007 09:53 AM
Posted to General Law Related

Ind. Law - "Attorney picks up where AG leaves off"

Columnist John Ketzenberger of the Indianapolis Star writes today:

Attorney Irwin Levin has another class-action lawsuit brought under the state's deceptive-consumer-sales statute.

Levin has the business because Attorney General Steve Carter's office chose not to pursue a claim against computer-maker Dell on behalf of the state's consumers.

Levin, who has gone to bat many times for consumers, sees a winnable case where Carter's office didn't. These kinds of judgment calls happen all the time. But Indiana's consumer-protection law is considered among the nation's weakest. New York and California, for instance, are considered much more consumer-friendly. * * *

Levin is not too proud to note his case is ripped right from the brief Cuomo filed in New York on behalf of the Empire State's residents. After Girolami failed to persuade Carter's office to take the case, another attorney recommended Levin. It's not the first time he has gotten a case the state refused.

Is Carter doing enough to protect the state's consumers?

Carter sued Walgreen in 2005, alleging the pharmacy altered prescriptions to boost Medicaid payments. And Indiana has joined some other states' consumer cases.

Carter contends his office does the best it can with the law it has to work with. But the only recent change to Indiana's consumer-protection law was to increase the penalty for violations to $5,000 each. Carter got that done in the General Assembly.

We won't know what kind of a consumer-protection crusader Carter could be until he pushes a tougher law.

Until then, it's up to Levin -- who is following the lead of New York's attorney general.

Emphasis added. See this May 27th ILB entry titled "Is It OK for Lawyers to Copy Complaints?"

Posted by Marcia Oddi on June 5, 2007 09:29 AM
Posted to Indiana Law

Ind. Gov't. - "But by resigning before July 31, Smith also qualifies for lifetime, state-subsidized health insurance"

John Byrne of the Gary Post-Tribune reports today:

EAST CHICAGO -- State Sen. Sam Smith wants to pass his legislative seat to his wife.

Smith, D-East Chicago, said he will resign, effective Wednesday.

He said he has received commitments from Democratic leaders in East Chicago and Hammond to support the candidacy of his wife, Diane Smith, in the precinct caucus to name his successor.

Smith said he wants to focus on running his business, Divinity Funeral Home, which is preparing to open a larger location in East Chicago.

But by resigning before July 31, Smith also qualifies for lifetime, state-subsidized health insurance.

The General Assembly passed a law this spring, eliminating the insurance package as part of a pay increase for legislators, but the new law has not yet taken effect. * * *

In 2004, Smith won the Democratic nomination on his way to another term despite a scandal touching him.

The senator pleaded guilty that year to misdemeanor charges of failure to remit sales tax in connection with his funeral home.

The transgression came to light during an investigation of misappropriated Build Indiana funds Smith helped secure for a proposed women's shelter in East Chicago which was never constructed.

Yet Smith resisted calls for his resignation then.

Now, he said, the time is right.

"(Diane) will do a great job, and I need to be here now," he said.

Ed Feigenbaum writes this morning in Indiana Daily Insight:

Some folks tell us to see a spate of additional retirements announced before the July 31 take it (and leave) or leave it deadline for the lucrative old legislative health insurance benefit package.

Patrick Guinane of the NWI Times reports:

State Sen. Sam Smith, D-East Chicago, said he is resigning to focus on an expansion of his family's funeral home and wants his wife to serve the remaining 18 months of his term.

A senator since 1998, Smith faced a potential re-election roadblock next year. He pleaded guilty to tax evasion for failing to pay sales tax on his East Chicago funeral home in 2004. And a state law approved a year later prohibits those charged with a felony but convicted of a misdemeanor, as Smith was, from seeking public office.

He is asking fellow Democrats to select his wife, Diane Smith, to complete the remaining 18 months of his term.

"I was going to run and let the chips fall where they may," Smith said Monday. "This (resignation) was all based on me getting the larger (funeral home)."

Smith said his resignation is effective Wednesday.

Posted by Marcia Oddi on June 5, 2007 09:13 AM
Posted to Indiana Government | Legislative Benefits

Ind. Courts - "Officials make progress to keep federal court in Terre Haute"

Howard Greninger of the Terre Huate Tribune-Star reports today in a story that begins:

The General Services Administration still is evaluating proposals for new Terre Haute locations for the federal offices that will move from the building at Seventh and Cherry streets, a GSA spokesman said Monday.

David L. Wilkinson, spokesman for the GSA, said Monday that awarding contracts for new locations of federal tenants remains a most important task for the government.

In March, 2006, the GSA published a notice saying it wants to lease about 12,500 to 15,400 square feet of space for the courts and other tenants.

“The progress is that we are currently evaluating proposals that have been submitted as new locations for those tenants,” Wilkinson said. “No anticipated decision date has been stated, as yet.”

The building has been identified as a security risk since the terrorist attacks of September 2001, prompting the need for a new federal court facility. The current federal building lacks set-back distances from vehicular traffic.

A memorandum of understanding has been signed by Indiana State University, the U.S. Postal Service and the U.S. General Services Administration to allow ISU eventually to obtain the building.

More than $6 million in federal funds have been secured for work on the building. In 2005, ISU officials estimated the total project at $18 million, with ISU to obtain more than $12 million in private funding to convert the building for use by its College of Business.

The GSA’s lease on the federal building, which includes the courts, expires in September 2009, however the federal building could be vacated by late 2008. The building is now owned by the U.S. Postal Service.

The tenants are the federal courts, a U.S. Marshal’s office, federal adult probation office and an FBI office. The Postal Service will continue to have space in the existing building, Wilkinson said.

Posted by Marcia Oddi on June 5, 2007 09:07 AM
Posted to Indiana Courts

Ind. Courts - Wells County closer to securing Courthouse

Rebecca S. Green of the Fort Wayne Journal Gazette reports today:

BLUFFTON – More than 10 years after Wells County officials discussed tightening security at the county Courthouse, they revisited the issue Monday, coming closer to installing metal detectors and other security devices.

With a vote of 2-1, the Wells County commissioners passed a resolution on to the County Council asking the council to support the findings of a Courthouse security committee.

Created in 1995, the committee was formed to look into providing security for the four-story building – which has eight exterior doors that are always opened.

But nothing much has happened with the committee since 1995, and the issues have not gone away, Superior Judge Everett Goshorn said.

In recent years, county employees have been threatened on rare occasions, including once with a gun, Goshorn said.

A new security committee was established in February, made up of county government officials, judicial officials and local security experts. The group heard reports from vendors regarding ways to secure the building, and how much it will cost. * * *

Among the committee’s recommendations was that the commissioners focus on the eight doors to the building, including the commissioners’ room.

The plan would be to install an X-ray scanner and metal detectors inside a ground-floor door, a 24-hour video surveillance system and assign two deputies to Courthouse security, at a cost of about $47,460 to be included in the 2008 budget, Goshorn said. * * *

Mossburg said he agreed the Courthouse needs security but said he wants the county to take a smaller step in between the “panic buttons” currently installed in county offices and closing most of the doors to the building.

“I think we’re going above and beyond the next step,” he said.

Here is a list including some earlier ILB entries on courthouse security and discussions of the availability of $50,000 Homeland Security grants.

Posted by Marcia Oddi on June 5, 2007 08:57 AM
Posted to Indiana Courts

Ind. Decisions - Results on: Supreme Court orders the Warrick County court reporter to finish typing the transcript of the David Camm murder retrial [Update]

Did the Warrick County court reporter get the transcript filed under the deadline set last Friday by the Indiana Supreme Court order which concluded:

This is a final extension. If the remaining portion of the transcript is not completed and filed on or before June 4, 2007, the court reporter will be ordered to appear before this Court in person to show cause why she should not be held in contempt.

(See this ILB entry from Saturday for background.)

We don't know yet. Watch this spot.

This story in the Louisville Courier Journal this morning reports only that: "A Warrick County court reporter and other court staff worked into yesterday evening to finish a transcript of last year's retrial of David Camm to meet an Indiana Supreme Court deadline."

[Update] The transcript was filed on time. See this update.

Posted by Marcia Oddi on June 5, 2007 08:47 AM
Posted to Ind. Sup.Ct. Decisions

Monday, June 04, 2007

Ind. Courts - More on: St. Joseph County felony public defenders overwhelmed [Updated]

The South Bend Tribune today has Part 2 of Pablo Ros' report on St. Joseph County's public defender program. (See ILB report on Sunday's story here.) Some quotes from the lengthy story exploring the pros and cons of involvement in the state reimbursement program:

St. Joseph County's historical reluctance to join a state program that reimburses some public defender expenses has been fueled at least in part by fears that the program does not fully work.

Fifty-seven of Indiana's 92 counties have signed up for reimbursement from the Indiana Public Defender Commission, according to the commission's Web site.

For related stories, see this Jan. 6, 2007 ILB entry headed "Porter's public defenders overwhelmed", and three ILB entires, ending with this one from March 9, 2006, titled "Failure to submit paperwork to Indiana Public Defender Commission costly to many counties, including Marion."

Here is the website of the Indiana Public Defender Commission, which includes links to more information on excessive caseloads.

[Updated] The AP has a story today that begins:

Lake County's chief public defender thinks a state program that reimburses some public defender expenses should be done statewide.

Vanderburgh County's chief public defender Stephen Owens does not share that view. He says he doesn't believe other counties should be allowed to join until the Indiana Public Defender Commission can keep its financial commitment its current members.

"The more counties come in and the more fingers in the pie, the less money to pass around," Owens told the South Bend Tribune for a Monday story.

Posted by Marcia Oddi on June 4, 2007 03:20 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In Donald and Jacquelyn Lindsey v. De Groot Dairy, LLC and IDEM, a 7-page opinion, Judge Bailey writes:

Donald and Jacquelyn Lindsey (“Lindseys”) appeal the dismissal of their Verified Petition for Judicial Review (“Verified Petition”) of an administrative law judge’s order. We reverse. * * *

De Groot Dairy LLC (“De Groot”) operated a farm with dairy cows, including pools used to collect waste. The Indiana Department of Environmental Management (“IDEM”) issued a confined-feeding-operation permit to De Groot. Later, De Groot and IDEM entered an Agreed Judgment, pursuant to which IDEM issued an amended permit. The Lindseys live near the farm. On January 25, 2005, they filed a Petition for Administrative Review and Stay of Effectiveness of the Amendment, alleging a series of harms. The Chief Environmental Law Judge (“ELJ”) dismissed the Lindseys’ Petition for Administrative Review for failure to state a claim upon which relief can be granted.

On February 27, 2006, the Lindseys filed their Verified Petition in Huntington Superior Court, sending summons to the Attorney General, the ELJ, an IDEM attorney, and the attorney who had represented De Groot in the administrative proceeding, Todd Janzen (“Janzen”). However, no summons was sent to De Groot. De Groot filed a Motion to Dismiss, contesting subject matter jurisdiction. Also, it moved for an automatic change of judge. A special judge granted De Groot’s Motion to Dismiss. The Lindseys now appeal. * * *

[The court examines IC 4-21.5-5-1 which provides that: "A petitioner for judicial review shall serve a copy of the petition upon: . . . (4) each party to the proceeding before an agency; in the manner provided by the rules of procedure governing civil actions in the courts." The Court notes "we are presented with an issue of first impression."]

Indiana law strongly prefers disposition of cases on their merits. Coslett v. Weddle Bros. Constr. Co., Inc., 798 N.E.2d 859, 861 (Ind. 2003), reh’g denied. We prefer not to erect procedural obstacles to their presentation. Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843, 848 (1976). In light of the considerations noted above, we conclude that service pursuant to Trial Rule 5 satisfies Indiana Code Section 4-21.5-5-8. To rule otherwise would create a procedural trap for unwary litigants, especially where, as here, the parties had already been engaged in the dispute for some time. If the General Assembly would prefer service to be achieved under Trial Rule 4, it should so specify. Conclusion We conclude that the trial court erred in dismissing the Lindseys’ Verified Petition for Judicial Review. Reversed.

See this ILB entry from June 2, 2007 for some of the other matters involving DeGroot Dairy.

NFP civil opinions today (0):

NFP criminal opinions today (8):

Eric Crawford v. State of Indiana (NFP)

Elvis A. Pack v. State of Indiana (NFP)

Darrell Washington v. State of Indiana (NFP)

Kurt M. Taylor v. State of Indiana (NFP)

In the Matter of A.J.C. v. State of Indiana (NFP)

Stephen Gaskey, Jr. v. State of Indiana (NFP)

Bruce Lamson v. State of Indiana (NFP)

Carlos Ramirez v. State of Indiana (NFP)

Posted by Marcia Oddi on June 4, 2007 02:57 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana decision today from 7th Circuit

In U.S. v. Elton Burks (ND Ind., Philip P. Simon, Judge) Judge Bauer writes:

Burks was convicted on the attempted murder charges and sentenced by an Indiana state court to 76 years’ imprisonment. After his sentence, Burks was delivered to federal custody on a writ of habeas corpus to face trial on the federal indictment. He filed a motion to suppress all evidence recovered from his arrest; the district court denied the motion.

Burks pleaded guilty to being a felon in possession of ammunition, reserving his right to appeal the denial of his motion to suppress. The district court sentenced Burks to 84 months’ imprisonment to run concurrent to his 76-year state term of imprisonment. He now challenges the denial of his motion to suppress and the calculation of his sentence. We affirm.

Posted by Marcia Oddi on June 4, 2007 01:30 PM
Posted to Ind. (7th Cir.) Decisions

Sunday, June 03, 2007

Courts - What is left for the Supreme Court to decide this term?

Here are some guides.

"Supreme Court ending term with big issues: School integration, campaign ads, Bush's faith-based initiative and more are on the divided justices' docket this last month" is the headline to a David G. Savage story dated June 2 in the LA Times. This comprehensive report begins:

The Supreme Court heads into the final month of its term next week, and is expected to deliver major decisions on the future of school integration, the role of corporate money in political campaign ads and a taxpayer challenge to President Bush's faith-based initiative.

There will probably be more 5-4 rulings and sharply worded dissents as the justices hand down rulings in the 26 remaining cases by the end of June and then leave town for the summer.

Mark Sherman of the AP has a story June 1 that begins:

Important cases on race in schools, campaign finance and student speech rights are still to be decided before the Supreme Court adjourns for the summer.

The outcome of those cases, as well as a dispute over President Bush's faith-based program, will help show how far to the right Bush's two nominees, Chief Justice John Roberts and Justice Samuel Alito, have moved the court.

The justices have about 25 opinions to issue - more than one-third of the 71 cases they have heard since October - before they leave town at the end of June for teaching gigs, foreign travel and vacations.

And for the real nitty-gitty, the experts at SCOTUSblog.com are up to Edition 3 of their "Stat Pack", a 20-page PDF covering both "Details and Questions Presented for Pending Cases in OT06" and "Details and Questions Presented for Granted Cases for OT07 (New)."

Posted by Marcia Oddi on June 3, 2007 10:39 AM
Posted to Courts in general

Ind. Law - "Law would allow judges to seal coroners’ reports"

"Public records lawyers say Jill Behrman's death report illegally sealed " was the heading of this ILB entry from March 2, 2006, with follow-ups March 10th and June 8th of 2006.

Today Niki Kelly of the Fort Wayne Journal Gazette reports that a new law may change that. Some quotes:

While lawmakers were busy detailing new training requirements for county coroners, they also inserted a provision that will make it easier for prosecutors to seal coroners’ reports in sensitive death investigations.

Under current law, coroners must make certain information available for public inspection and copying for every death investigation, often called a coroner’s report.

Some of these items include the name, age, address, sex and race of the deceased; the address where the body was found; the name of the person reporting the death; limited information regarding an autopsy; and conclusions on the cause and manner of death.

But Steve Key, lobbyist for the Hoosier State Press Association, said some coroners just weren’t completing the reports, possibly at the behest of police trying to keep details under wraps.

Newspapers in three high-profile homicide cases statewide sued, alleging the coroners weren’t following current state law to provide the reports.

But Key said the judge had no recourse because no timeline is specified in the law for when such a report must be made available.

That’s why the press association pushed for a provision that made it into the bill – and will become effective July 1 – clarifying that the information must be made available no later than 14 days after the completion of the autopsy report or any other report – such as toxicology – requested by the coroner as part of the investigation. * * *

But the state prosecutors association wasn’t happy with the language and worked with Key to add a section allowing the reports – including the cause and manner of death – to be sealed in some situations.

Specifically, the new law says a prosecutor can petition a local judge to prohibit the coroner from publicly disclosing information otherwise required to be available to the public. The judge must find that public access or dissemination of the information would create a significant harm to the criminal investigation of the death.

Judges have sometimes sealed coroners’ reports, the most famous of which was the Jill Behrman case. The 19-year-old Indiana University student disappeared while riding her bicycle in 2000.

Key said it was questionable whether the judge actually had the right to seal the report in that case, but the new provision provides that specific authority via state statute.

Allen County Chief Deputy Coroner Dick Alfeld said the coroners association didn’t object because the provision is helpful to law enforcement officials to keep certain information private to weed out possible suspects.

“It makes our position much stronger,” he said.

But he and others don’t think the provision sealing records will be used often.

“My understanding is it would be rarely used,” said Sen. Patricia Miller, R-Indianapolis, the author of the legislation. “I don’t think a judge would allow them to do this on a whim. There has to be some compelling reason.”

Key also said it was not the intention to regularly shield a coroner’s report from the public. In fact, the entire purpose at the beginning of the session was to ensure coroners were actually doing the reports.

“If prosecutors are routinely filing requests to seal the coroner’s report then we will have a problem and we’ll have to go back to the General Assembly,” he said. “That was not the intent of the legislation.”

It will be very hard to put the toothpaste back in the tube ...

Posted by Marcia Oddi on June 3, 2007 09:43 AM
Posted to Indiana Law

Ind. Decisions - Still more on: Judge Nation has ruled against Lauth Indiana Resort & Casino

The AP has now picked up the story of last Tuesday's ruling by Judge Nation's ruling against in Lost River Dev. v. Robert L. Lauth, Jr. See the ILB entry from last Friday here.

Today's AP story begins:

NOBLESVILLE – A judge has ruled that a contract existed between an Orange County casino partner and a company that accuses it of negotiating secretly to win the casino contract.

The ruling by Hamilton Superior Judge Stephen R. Nation in Noblesville could pave the way for a trial over the French Lick Resort Casino’s operating contract.

Nation ruled on May 22 that a contract had in fact had existed between Lauth Indiana Resort & Casino and Merit Management, which joined together to form Lost River Development in a bid for the Orange County casino license.

His ruling rejected Lauth’s request for summary judgment on the contract issue.

Merit Management is suing Lauth, alleging that the Indianapolis-based resort and casino firm entered into secret negotiations with Bloomington-based Cook Inc. to cut out Merit Management in their attempts to win a contract for the casino from the Indiana Gaming Commission.

Lauth general counsel Vernon Back said Lauth never questioned if it had a contract with Merit at one time.

“That agreement was terminated,” Back said. “There was nothing in the agreement that says if there’s a second partner, that we had to reapply with (Merit).”

Back said Lauth will file many more summary judgments.

“It’s really of no effect,” he said of the ruling. “It just means that count wasn’t dismissed.”

Posted by Marcia Oddi on June 3, 2007 09:33 AM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - St. Joseph County felony public defenders overwhelmed

The South Bend Tribune today has a story by Pablo Ros headed "Defenders: We're overwhelmed." Some quotes from the lengthy story:

In late 2005, Julie P. Verheye, also a felony public defender, asked a St. Joseph County Superior Court judge for help in resolving a case overload problem.

Verheye wrote she already had 116 cases that year and was concerned that "further appointments will result in inadequate representation in violation of the Rules of Professional Conduct," which instruct attorneys to provide competent representation, be diligent and prompt in representing a client and communicate fully with a client, among other things.

Failure to provide competent representation may result in "discipline or suspension from the practice of law," Verheye wrote, citing legal precedents. "Because of the sheer number of cases being assigned, it is getting very difficult if not impossible for this and other defense attorneys who represent indigent clients to conform with the Rules of Professional Conduct."

Verheye said she was too busy to be interviewed for this article.

[Greg] Kauffman recalled that in response to their complaints, "three or four" attorneys were hired to handle D felony cases "to see if they could work out pleas to try and lighten the load."

But, Kauffman recalled, that only worked temporarily.

"I compare that to the boy who puts his finger in the dike and thinks he's going to stop it from flooding the city," he said. * * *

Those interviewed for this story also said that although their income as public defenders is less than half of their total income as lawyers, the work they do as public defenders represents most of the total legal work they do -- the rest being their private practice.

"It is impossible to make a good living when you spend 80 percent of your time only making 30 percent of your yearly income," Kauffman said.

Part of what makes part-time public defender work appealing is that it gives one time to develop a private practice while being eligible to receive some benefits, including health and life insurance and a retirement fund.

"You can maybe make five times as much privately on a case-by-case basis," said James F. Korpal, the county's chief public defender.

Felony public defenders are paid about $35,000 a year, including a stipend for office expenses.

Posted by Marcia Oddi on June 3, 2007 09:17 AM
Posted to Indiana Courts

Saturday, June 02, 2007

Ind. Decisions - More on: Supreme Court orders the Warrick County court reporter to finish typing the transcript of the David Camm murder retrial

On May 4th the ILB quoted from a Ben Zion Hershberg story in the Louisville Courier Journal that began:

The Indiana Supreme Court has ordered the Warrick County court reporter to finish typing the transcript of the David Camm murder retrial by June 1 or face possible contempt-of-court charges.

The stern warning by the court, issued Wednesday, followed court reporter Mary C. Kennedy's request for a delay until Aug. 1 to finish the transcript of the eight-week trial, which was held early last year in Warrick County Superior Court.

Today Hershberg has a story headlined "Camm case transcript not ready: Court reporter risks contempt order." Some quotes:

Despite risking a contempt-of-court charge by the Indiana Supreme Court, the Warrick County court reporter responsible for typing the transcript of David Camm's murder retrial last year has asked for more time -- but only until Monday.

In May, the Supreme Court ordered Mary C. Kennedy to file the completed transcript by yesterday, saying she could be charged with contempt if she failed to do so. * * *

Kennedy said she expected the seven people who have been working on the transcript with her to finish the typing yesterday, but that wouldn't leave enough time to compile the massive document and create a table of contents, lists of witnesses and exhibits, and then assemble volumes of exhibits before the end of the day.

All that will be done by Monday, Kennedy said, if the court gives her an extension through the end of the business day Monday.

The Supreme Court wasn't expected to take any action in the case yesterday, a staff attorney said.

However, this morning the ILB was delighted to discover that WHAS11.com, out of Louisville, has a Camm - Boney Murder Trials Blog - access it here.

The WHAS11 Blog has an entry from late yesterday afternoon reporting that the deadline extension had been granted, and setting out the order in full. Some quotes from the June 1 Supreme Court order by Chief Justice Randall T. Shepard:

Court Reporter Kennedy has now filed "Court Reporter's Final Verified Motion For Extension of Time to File Transcript," her third motion, asking for an extension of time of three days, to Monday, June 4, 2007, in which to complete and file the transcript.

Court reporters are expected to comply with court orders just as parties are, and the particular circumstances that prevent the transcript from being completed June 1 is not necessarily apparent from the motion.

On the other hand, the court reporter has designated her motion as a "final" request for extension of time and the bulk of the additional time requested occurs over a weekend when the court is closed.

The court reporter's motion is GRANTED. Court Reporter Kennedy is ORDERED to complete and file the remaining portion of the transcript on or before the close of business June 4, 2007.

This is a final extension. If the remaining portion of the transcript is not completed and filed on or before June 4, 2007, the court reporter will be ordered to appear before this Court in person to show cause why she should not be held in contempt.

For some background on unfinished or lost transcripts, and court transcripts in general, see this ILB entry from April 22, 2007.

Posted by Marcia Oddi on June 2, 2007 08:40 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: Supreme Court sets date for Lambert execution

Updating this May 23rd ILB entry, the AP reports today:

INDIANAPOLIS -- The state asked a federal court of appeals yesterday not to grant a stay of execution for a man scheduled to die by lethal injection in two weeks for killing a Muncie police officer.

The state also asked the 7th U.S. Circuit Court of Appeals in Chicago not to grant Michael Lambert a new sentencing hearing, arguing that he has used up his appeals. * * *

In its filing yesterday, the attorney general's office argued that the only way that Lambert should be allowed another hearing is if he can "prove that he is actually innocent of murdering Officer Winters."

Lambert doesn't deny shooting Winters. * * *

Attorneys for Lambert argued in a motion Thursday that he deserves a new hearing because of a U.S. Supreme Court ruling last year.

They contend that the jury should not have heard from Winters' widow, Molly, about the effect that her husband's death had on her family before handing down the sentence.

The Indiana Supreme Court has ruled that the jury should not have heard the statements, but concluded that the aggravating circumstances outweighed the mitigating circumstances and affirmed his death sentence.

Posted by Marcia Oddi on June 2, 2007 08:34 AM
Posted to Ind. (7th Cir.) Decisions | Ind. Sup.Ct. Decisions

Environment - Closing the farm proves challenging to IDEM

The Fort Wayne Journal Gazette has an editorial today exploring the potential ramifications of IDEM's action to revoke the permit of the DeGroot dairy in Huntington County.

(For background, see this ILB entry from May 4th and this one from May 10th.)

Here are some quotes from the editorial:

Some Huntington area residents may feel pleased that DeGroot Dairy, the rural Huntington County dairy cited for environmental infractions, is in danger of losing its state operating permit. But the problems at the farm point to a larger dilemma and a need for firmer state guidelines for large animal-feeding operations.

Decommissioning the 1,400-cow dairy creates a host of questions and concerns about how to care for the animals in a humane and environmentally sound manner if necessary. State leaders have made it a goal to grow agricultural business in Indiana, but rules to ensure the farms don’t harm the environment or neighboring property owners need to keep up with the growth. * * *

Amy Hartsock, a spokeswoman for IDEM, said the Office of Environmental Adjudication has scheduled a pre-hearing conference on the appeal for Monday. * * *

“This is the first time we have gone through the revocation process,” Hartsock said. “And because this is the first time we are taking this type of action we are taking it step by step. We anticipated that there was going to be an appeal.”

There are animal welfare as well as environmental issues involved with closing down the farm. If the DeGroots lose the appeal, something will have to be done with the cows. Dairy cows require special care and will continue to require feeding and will continue to produce large amounts of manure. Hartsock said ensuring the manure is handled appropriately during that process and long-term compliance with environmental regulations will remain the department’s focus regardless of the outcome of the appeal.

State environmental officials face a challenging problem in revoking the DeGroot Dairy permit. More comprehensive regulations for zoning and operating large animal feeding operations from state lawmakers could help prevent the need to close farms in the future.

Posted by Marcia Oddi on June 2, 2007 08:19 AM
Posted to Environment

Friday, June 01, 2007

Ind. Decisions - More on: Judge Nation has ruled in favor of Merit Management in a lawsuit filed against Lauth Indiana Resort & Casino

The ILB has now received a copy of Judge Nation's opinion in the case discussed this afternoon (see earlier ILB entry here or simply scroll down two).

Here is the 5-page opinion in Lost River Dev. v. Robert L. Lauth, Jr.

Thanks to Ed Feigenbaum of Indiana Gaming Insight (IGI), who has also granted me permission to quote a bit from his front-page exclusive published last evening, reporting on Judge Nation's May 22nd ruling.

Ed tells me: "Believe it or not, even with the local connection, the amount of $$ at stake, and the fact that it is a casino-related matter, the only thing that has been written about this case in the last year (until today) has been in Indiana Gaming Insight." Some quotes from his IGI story:

On May 22, Judge Nation rules against Lauth Indiana’s Motion for Partial Summary Judgment filed last June. He finds that the April 2004 letter agreement between Merit and Lauth which teamed the two entities together in a Lost River Development, LLC proposal for the original Orange County operating agent contract was itself a contract between the parties that had no termination date and must remain in force “until its purpose is accomplished or until that purpose becomes impracticable.”

While Lauth contends that the contract ended or became impracticable when the Indiana Gaming Commission approved the Trump Spring Valley OAC application on July 20, 2004, Judge Nation finds that “The actions of the parties after the ... contract was awarded to Trump create a genuine issue of material fact as to whether the contract was impossible or impracticable after that date.” * * *

The bottom line here is that Lauth loses its key threshold argument that there was no contract in effect once the original Orange County deal was awarded to Trump. Judge Nation believes that there is enough of a question about whether the actions of the parties after that date amounted to an understanding that the deal was still in effect that a jury must decide the matter.

Even so, his denial of the Motion for Summary Judgment serves up some higher hurdles than Lauth probably expected, including turning one important 1997 federal appellate court ruling cited by Lauth in its favor against Lauth in ruling on the motion. [emphasis added]

That case was Scandinavian Airlines v. McDonald's Corp. (7th Cir. 1997). See Judge Nation's finding 17 at the bottom of page 4 of the opinion.

Posted by Marcia Oddi on June 1, 2007 05:41 PM
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Transfer list for week ending June 1, 2007

Here is the Indiana Supreme Court's transfer list for the week ending June 1, 2007.

(Always be sure to go through all the pages, as the "list" is really two combined lists.)

Over three years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on June 1, 2007 03:55 PM
Posted to Indiana Transfer Lists

Ind. Decisions - Hamilton County Superior Court Judge Nation has ruled in favor of Merit Management in a lawsuit filed against Lauth Indiana Resort & Casino over a joint venture involving the development of the French Lick Resort Casino

Inside Indiana Business is reporting this afternoon:

A judge in Hamilton County Superior Court has ruled in favor of Merit Management in a lawsuit filed against Lauth Indiana Resort & Casino over a joint venture involving the development of the French Lick Resort Casino.

An attorney representing Merit tells Inside INdiana Business that the ruling now opens the door for the lawsuit to go to trial. Merit Management had partnered with Indianapolis-based Lauth Property Group to form Lost River Development. That group lost out on a gaming license after the Indiana Gaming Commission awarded the license to a company owned by Donald Trump. That license was later rescinded due to Trump's financial problems.

Merit claims that Lauth was in breach of contract when Lauth then partnered with Bloomington-based Cook Group to seek the gaming license. Merit says it is seeking $100 million from Lauth Indiana Resorts & Casinos and its principals Robert Lauth, Jr., Gregory Gurnik and Vernon Back.

The IIB story, which appears to be based on a press release from Merit Management, concludes:

[Merit Management’s attorney Gary Grasso of the Chicago law firm of Grasso Bass & Williams] stated: “We believe that Mr. Lauth and Mr. Gurnik took advantage of Merit and their partners, playing the game with them until they saw an 11th hour opportunity to double-cross them and become the sole bidder for the contract with the Cook Group. We understand all too well, as the Cook Group apparently does now given its litigation with Lauth over the French Lick casino, that you must be careful before placing your trust in the Lauth people.”

The ILB would be pleased to post a copy of Judge Nation's opinion, and the reaction of Lauth Indiana Resort & Casino, should either become available.

Posted by Marcia Oddi on June 1, 2007 03:04 PM
Posted to Ind. Trial Ct. Decisions

About this blog - ILB selected by Library of Congress

The ILB received an email this morning from the Library of Congress that begins:

The United States Library of Congress has selected your Web site for inclusion in its historic collections of Internet materials related to Legal Blogs. The Library's traditional functions, acquiring, cataloging, preserving and serving collection materials of historical importance to the Congress and to the American people to foster education and scholarship, extend to digital materials, including Web sites. We request your permission to collect your Web site and add it to the Library's research collections. We also ask that we be allowed to display the archived version(s) of your Web site.

With your permission, the Library of Congress or its agent will engage in the collection of content from your Web site at regular intervals over time. The Library will make this collection available to researchers onsite at Library facilities. The Library also wishes to make the collection available to offsite researchers by hosting the collection on the Library's public access Web site. The Library hopes that you share its vision of preserving Internet materials and permitting researchers from across the world to access them.

Of course I do. I am honored to have been selected for inclusion in this project.

And what is this LOC project? It is number 2 in this list from the LOC website. The description:

Legal Blogs. A selective collection of authoritative blogs associated with American Bar Association approved law schools, research institutes, think tanks, and other expertise-based organizations, containing journal-style entries, articles and essays, discussions, and comments on emerging legal issues, national and international. Collection dates: March 2007 - December 2007

Posted by Marcia Oddi on June 1, 2007 01:43 PM
Posted to About the Indiana Law Blog

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Pike County Commissioners, G. Todd Meadors and Pike County Sheriff's Department v. Jason P. Traylor (NFP) - "Because Traylor did not file his tort claim notice until April 29, 2004, one hundred and eighty-three days after his initial injuries, we find that his tort claim notice was not timely filed. Thus, the trial court erred by denying Pike County’s summary judgment motion."

NFP criminal opinions today (2):

Sean Monaghan v. State of Indiana (NFP)

John Wondra v. State of Indiana (NFP)

Posted by Marcia Oddi on June 1, 2007 01:36 PM
Posted to Ind. App.Ct. Decisions

Law - Legal issues raised by the TB quarantine story

Mike Stobbe of the AP has an interesting story today looking at various legal issues raised by the situation of an Atlanta personal injury attorney, Andrew Speaker, with drug-resistant TB. Some quotes:

ATLANTA (AP) -- The case of a jet-setting tuberculosis patient might soon shift from the hospital wards to the courts. The patient, Andrew Speaker, an Atlanta personal injury attorney, could sue the federal government for being quarantined on the basis of federal regulations that some scholars see as unconstitutional.

Or Speaker could be sued by fellow airline passengers, especially if any caught the disease from him - which some legal scholars say is much more likely.

"He may be personally liable if someone contracts TB" from being near him on his recent flights to and from Europe, said Peter Jacobson, a University of Michigan professor of public health law. "I can see a jury coming down very hard on someone like that who willfully ignored advice not to travel."

Speaker flew to Europe for his wedding and honeymoon after being advised by health officials not to make the trip because he had TB. Then, while he was in Rome, U.S. health officials told him to stay put because further tests showed he had an even more dangerous, drug-resistant type of TB than previously thought.

The 31-year-old newlywed disregarded those instructions, taking commercial jets to Prague and then Montreal in an attempt to sneak back into the United States. * * *

Lawrence Gostin, a public health law expert at Georgetown University, agreed with those who feel Speaker has exposed himself to possible litigation.

"There are a number of cases that say a person who negligently transmits an infectious disease could be held liable," he said.

Perhaps the most significant legal issues in Speaker's case concern the federal quarantine law, and the difficulty federal health officials had trying to learn the identities of those who were exposed to Speaker, Gostin said.

The quarantine order was the first issued by the federal government since a patient with smallpox was isolated in 1963, according to the Centers for Disease Control and Prevention.

CDC officials have been requesting changes in the nation's antiquated quarantine laws to gain easier access to airline and ship passenger lists, provide patients a clearer appeals process when subjected to quarantines and give health officials explicit authority to offer vaccinations and medical treatment to quarantined people.

In the past week, Speaker was quarantined in New York City and then again - under guard - at an Atlanta hospital. The quarantine order was not approved by a judge, but rather issued under the CDC's administrative powers.

There's a reason for that, Jacobson said: In certain rare instances, such action is deemed necessary to avoid legal delays in rapidly protecting the public from a disease-carrying person.

While Speaker was still in Atlanta on Wednesday, a CDC official said Speaker had the right to request an administrative hearing to appeal the quarantine order but had not. (On Thursday, Speaker was flown to a Denver hospital, where he is no longer under guard.)

The legal rights of a quarantined person, including the right to request a hearing, are not clear under current law, Gostin said. Some legal scholars said the absence of clear guidelines could lead to a legal tangle that might stall government quarantine actions during an outbreak of pandemic flu or other contagious diseases.

Speaker can challenge the constitutionality of the quarantine order, and might even be able to seek a federal payment for damages, Gostin said.

Airlines can be slow to hand over passenger information because of concerns of violating customer privacy. It was not until late Wednesday that the CDC got full information from Air France about U.S. passengers on Speaker's May 12 flight from Atlanta to Paris.

One proposed change in the law would require airlines and cruise lines to electronically submit passenger and crew lists to the CDC upon request.

Posted by Marcia Oddi on June 1, 2007 01:24 PM
Posted to General Law Related

Ind. Decisions - "Appeals court agrees evidence was suppressed in Julian's trial"

Yesterday's NFP ruling in the case of State of Indiana v. Billy Wayne Julian (see ILB entry here - it is the last summarized opinion) is the subject of a story today in the Anderson Herald Bulletin. Some quotes from the story by Stacey Grosh:

Authorities knew that Brooks had been on in-home detention the night of the fire and, according to the Madison County Probation Department, Brooks never left his home that night. On four occasions, Julian’s attorney had filed requests for Brooks’ criminal history. It was finally supplied after a search of the Madison County Sheriff’s Department database. No reference to Brooks being on in-home detention was noted, although it was a part of city records.

“The State’s failure to provide a complete criminal history amounts to suppression of this information,” according to the ruling. The prosecutor’s office has a “duty to disclose evidence favorable to a criminal defendant.”

In May 2006, Circuit Court Judge Fredrick Spencer granted Julian’s post-conviction relief request after an Elwood Probation Department employee testified that its records indicated Brooks was home the night of the fire.

Posted by Marcia Oddi on June 1, 2007 01:13 PM
Posted to Ind. App.Ct. Decisions

Thursday, May 31, 2007

Ind. Courts - Special prosecutor named in attorney's fatal DUI case

Jon Murrary reports this afternoon in the Indianapolis Star:

A Marion Superior Court judge this afternoon appointed a special prosecutor to handle the case of an attorney accused of getting drunk at a strip club before a car crash that killed the other driver.

Former Monroe County Prosecutor Barry Brown will take over the case against Terry Record once he formally accepts the appointment.

Record, 27, is charged with two felony counts of operating a vehicle while intoxicated, causing death, and one count of reckless homicide in the May 6 death of Jimmy R. Cash. Record is on home detention at his family's house while he awaits trial and did not attend this afternoon's brief hearing before Judge Grant Hawkins.

Marion County Prosecutor Carl Brizzi, a Republican, frequently relies on Brown, a Democrat, in cases with the appearance of a conflict of interest.

Record worked for Brizzi as a deputy prosecutor-in-training for one week in October, but he was fired for lying about his involvement in another crash. After the latest crash, Record was fired from his job as a staff attorney for the Indiana State Department of Health.

See May 11th story here.

Posted by Marcia Oddi on May 31, 2007 04:09 PM
Posted to Indiana Courts

Ind. Decisions - Acceptable fee arrangements in medical malpractice actions

In Re Daniel B. Stephens is an opinion on the motion to intervene by the Indiana Trial Lawyers Association in this attorney disciplinary action. It is a 13 -page per curiam ruling, including a 1-page concurring option by Chief Justice Shepard. I can't begin to explain it, but instead will quote the following:

Shepard, Chief Justice, concurring in result.
It is far from clear that today’s per curiam represents the best policy for determining reasonable fees at the intersection of Rule 1.5 and the medical malpractice statute. This process has morphed from an agreed-sanction disciplinary case into something that looks much like rule-making, except that it has lacked many of the steps thought useful for good rule-making. Partly for this reason, it does not answer a good many questions important to the topic. I join in the outcome largely because the submissions of the Indiana Trial Lawyers Association, especially the brief and the several affidavits, have been so persuasive and the per curiam tracks their re-quest. And because the defendants against whom they file claims (and their associations and re-lated institutions with apparent stake in the outcome) have elected to stand silent, and our Disci-plinary Commission has found itself in the awkward position of noting the interests of a client it does not represent, the General Assembly.

Posted by Marcia Oddi on May 31, 2007 01:52 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 17 NFP)

For publication opinions today (6):

In Keith B. Von Hor v. Jane Doe and State Farm Insurance Companies, a 7-page opinion, Judge Crone writes:

In advocating for coverage under his vehicle’s insurance policy, motorcyclist Von Hor raises three issues, which we consolidate into one. We address whether the “strike,” or physical contact, requirement within an uninsured motorist clause may be disregarded when independent evidence exists that an unidentified miss-and-run driver was the proximate cause of an accident. * * *

Von Hor’s case is remarkably similar to that presented in Rice v. Meridian Insurance Company, wherein we affirmed summary judgment in favor of an insurance company. Rice, 751 N.E.2d 685 (Ind. Ct. App. 2001), trans. denied. More specifically, we concluded, “The hit-and-run vehicle did not directly or indirectly physically contact [Dianna Rice’s] car and, therefore, the accident that occurred does not fall within the scope of the [uninsured motorist] policy provision.” Like Von Hor, the Rices raised public policy and corroborative evidence issues issues, which we addressed as follows: [ILB - lengthy quotations omitted] * * *

In addressing Von Hor’s argument, we would add that the same justices that denied transfer of the Rice case remain on our supreme court today. Furthermore, six years have passed since our decision in Rice. During that time, our legislature has had ample opportunity to amend the Act to mandate miss-and-run motorist coverage. Yet, our lawmakers have chosen not to make such a change. See Allis, 628 N.E.2d at 1255-56. We are not authorized to redraft legislation. See id.; St. Vincent Hosp. & Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 703-04 (Ind. 2002) (“Clear and unambiguous statutory meaning leaves no room for judicial construction.”). Accordingly, however compelling we may find the facts and logic presented, we, as an intermediate appellate court, must reject Von Hor’s invitation to adopt the corroborative evidence test. Therefore, we will not overturn the summary judgment granted in State Farm’s favor.

Bobbie J. Rowe v. State of Indiana - "We cannot say that Rowe’s sentence is inappropriate in light of the nature of the offenses and the character of the offender."

Indiana Surgical Specialists v. Helen Griffin and MDS Courier Service, Inc. - "Indiana Surgical Services (“Indiana Surgical”) appeals the small claims court’s decision that the earnings Helen Griffin received as an independent contractor for MDS Courier Services (“MDS”) could not be garnished. Although Griffin was an independent contractor, she received periodic payments for her personal services, which payments were earnings that could be garnished. We reverse and remand."

In Re the Involuntary Termination of the Parent-Child Relationship of K.L., K.L., and S.G.; Pamela Eden v. Johnson County Department of Child Services - termination, affirmed.

In Re the Matter of The Adoption of J.D.B.; Gregory Lucas v. C.F.K. and Marion County Department of Child Services - affirmed.

In the Matter of M.K. and K.K.: Paula Sokol v. Porter County Office of Family & Children, Mark Sokol and Jean Sokol, and Court Appointed Special Advocate - "Paula Sokol (“Sokol”) appeals the trial court’s denial of her motion to terminate the guardianship of her two children, fifteen-year-old K.K. and twelve-year-old M.K. Sokol raises one issue, which we restate as: Whether the trial court erred in denying her petition. We reverse and remand."

NFP civil opinions today (4):

Rita Beatty, et al. v. James T. Martin, et al. (NFP) - "Specifically, the Beattys claim that the trial court erred in granting summary judgment for Wood because the designated evidence created a genuine issue of material fact as to whether Martin was Wood’s employee. Alternatively, the Beattys argue that summary judgment was improper because Wood should be held liable for Martin’s acts under an exception to the general rule of non-liability of a general contractor for the torts of an independent contractor. Also, the Beattys claim that this court should adopt a new exception to the general rule regarding non-liability when the potential independent contractor lacks sufficient financial resources to perform the contract “in a way that would not be detrimental to other persons lawfully upon the highway.” Concluding that summary judgment was properly entered for Wood, we affirm the judgment of the trial court."

In the Marriage of James L. Blaising and Nikki J. Blaising v. Bonnie L. Blaising and William R. Blaising (NFP) - "Mother raises one issues on appeal which we restate as follows: Whether the trial court properly granted joint legal custody of A.B. to Mother and the Grandparents, with primary physical custody retained by the Grandparents. * * *

Based on the evidence presented, we agree with the trial court’s decision to gradually increase Mother’s involvement in A.B.’s life by instituting joint legal custody. At the moment, A.B. is only familiar with his Grandparents’ environment: he was effectively raised by them since three months of age and has established a close emotional bond with them resulting in a deep mutual affection and feeling of safety. Immediately and without any warning uprooting A.B. from what he considers to be his home would not be in his best interests. Mindful of this, the trial court formulated a beneficial custodial arrangement for A.B. by allowing him to continue to build on the stable foundation of his relationship with his Grandparents, while at the same time expanding his relationship with his Mother. Consequently, we find that the evidence supports the trial court’s findings and the findings support its judgment. See Staresnick, 830 N.E.2d at 131. As such, we decline to set aside the trial court’s Order."

In Re The Matter of the Involuntary Termination of the Parent Child Relationship of S.B., A.B. and A.B.; Lori Bracken v. Marion County Department of Child Services and Child Advocates, Inc. (NFP) - "The trial court did not err in concluding there is a reasonable probability that the conditions resulting in the children’s removal from Bracken’s care still exist and will not be remedied, and that Bracken did not have sufficient income and adequate housing to support her children. Judgment affirmed."

Mike Whittman and Linda Whittman v. Carolyn Duning, Mark Brown and Heavenly Scents Candly Company, LLC (NFP) - "Mike Wittman and Linda Wittman appeal an order enforcing a settlement agreement in favor of Carolyn Duning, Mark Brown, and Heavenly Scents Candle Company, LLC. Because there was no “meeting of the minds” regarding the terms of a settlement agreement, no agreement was formed. We accordingly reverse and remand."

NFP criminal opinions today (12, now 13):

State of Indiana v. Billy Wayne Julian (NFP) - "The State of Indiana appeals the grant of post-conviction relief to Billy Wayne Julian. We affirm. * * *

There is a reasonable probability the result of the trial would have been different if Julian had been made aware Brooks was on home detention the night of the fire. The evidence most favorable to the post-conviction court’s ruling indicates Brooks was in his home several miles from the school and did not violate his home detention during the relevant time. Consequently, Brooks could not have sold marijuana to Julian at the school shortly before the fire. Although other evidence and testimony placed Julian at the scene,7 this evidence is sufficient to undermine our confidence in the outcome of the trial. We conclude Julian’s claim under Brady prevails and, accordingly, affirm the court’s grant of post-conviction relief. Affirmed."

Shane Craig v. State of Indiana (NFP)

S.J. v. State of Indiana (NFP)

Jason Tye Myers v. State of Indiana (NFP)

Robert Evan Wright v. State of Indiana (NFP)

Edward Dancy v. State of Indiana (NFP)

Vincent Antoine Irving v. State of Indiana (NFP)

Lonzell Mobley v. State of Indiana (NFP)

Darius V. Bowles v. State of Indiana

Tamera Richards v. State of Indiana (NFP)

Pedro A. Cordoba v. State of Indiana (NFP)

James E. Doss v. State of Indiana (NFP)

Will E. Dunlap v. State of Indiana (NFP) [NEW]

Posted by Marcia Oddi on May 31, 2007 01:52 PM
Posted to Ind. App.Ct. Decisions

Courts - Job opportunities at the Supreme Court

Check here for a list of employement opportunties, ranging from Supreme Court clerkships to web developer.

Posted by Marcia Oddi on May 31, 2007 01:41 PM
Posted to Indiana Courts

Courts - Litigants blogging

On May 21st, Diana L. Skaggs of the Kentucky Divorce Law blog had an entry titled "Litigant Blogs Facts Of Case." You can read her entry, and my response, citing some ILB entries, here.

Today the Boston Globe has a story by Jonathan Saltzman headed "Blogger unmasked, court case upended." Some quotes:

It was a Perry Mason moment updated for the Internet age.

As Ivy League-educated pediatrician Robert P. Lindeman sat on the stand in Suffolk Superior Court this month, defending himself in a malpractice suit involving the death of a 12-year-old patient, the opposing counsel startled him with a question.

Was Lindeman Flea?

Flea, jurors in the case didn't know, was the screen name for a blogger who had written often and at length about a trial remarkably similar to the one that was going on in the courtroom that day.

In his blog, Flea had ridiculed the plaintiff's case and the plaintiff's lawyer. He had revealed the defense strategy. He had accused members of the jury of dozing.

With the jury looking on in puzzlement, Lindeman admitted that he was, in fact, Flea.

The next morning, on May 15, he agreed to pay what members of Boston's tight-knit legal community describe as a substantial settlement -- case closed.

The case is a startling illustration of how blogging, already implicated in destroying friendships and ruining job prospects, could interfere in other important arenas. Lawyers in Massachusetts and elsewhere, some of whom downloaded Flea's observations and posted them on their websites, said the case has also prompted them to warn clients that blogs can come back to haunt them.

[More] I see the WSJ Blog also has an entry on this Globe story. Access it here.

Posted by Marcia Oddi on May 31, 2007 12:18 PM
Posted to Courts in general

Ind. Law - Do the changes to the sex offender law mean longtime homeowners must move?

That is the question addressed in two stories by Sophia Voravong of the Lafayette Journal & Courier.

Some quotes from her story of May 17, 2007:

A local man will have to leave his home of more than 20 years. Another will have to figure out how he can continue at-home care for his mother.

They are among the 28 registered sex offenders convicted of crimes against children who soon must move -- most likely into rural Tippecanoe County.

"I've been met with disgust. Some of the offenders are angry about it," said sheriff's Detective Greg Haltom, who runs the sex offender registry for Tippecanoe County. "But it's our job to enforce the law, and that's how the law is written."

A state law that took effect in July 2006 prohibits child offenders from living within 1,000 feet of a school, public park or youth program center. But only now are the sheriff's department and prosecutor's office able to enforce it.

Haltom since April has been hand-delivering letters from prosecutor Pat Harrington, letting the offenders know they have 45 days -- from the day they get the letter -- to find new housing. Twelve people had been notified as of Tuesday.

Those who refuse to move will be charged with a Class D felony.

"There are no exceptions," Harrington said. "The law is clear."

Like Haltom, Harrington said he already has received some concerned e-mails from those who must move. He expects that the issue could go before the Indiana appellate or supreme courts.

Lafayette attorney Bruce Graham, who has represented some child sex offenders, agrees. He sees it as an additional punishment for those who already served jail time.

"The basic issue is a constitutional one. I'm sure there is going to be a due process argument," he said. "They're imposing an additional condition after the fact.

"In effect, people are being forced to do something that they had no prior knowledge of having to do. ... They had no chance to give input."

From today's story:

State Rep. Joe Micon, D-West Lafayette, voted last year on legislation requiring that certain sex offenders living near children relocate.

He did so believing that it applied to those previously convicted and listed in Indiana's Sex Offender Registry who meet the established terms.

"Absolutely, they have to move," Micon said. "I believe that was the legislative intent."

The Tippecanoe County prosecutor's office was still waiting Wednesday to hear from the state's prosecuting attorneys council to see if it correctly interpreted the law, which took effect July 1, 2006.

Letters to offenders convicted of crimes against children went out in late April, stating that the offender could not live within 1,000 feet of a school, public park or youth program center. Twenty-eight offenders in Tippecanoe County must move.

Confusion comes from the statute's legislative history, which says it applies "only to crimes committed after June 30, 2006."

Deputy prosecutor Laura Zeman said the prosecutor's office is viewing the crime -- as defined in the statute -- not as the original offense but as the violation of the state's residency restrictions.

Posted by Marcia Oddi on May 31, 2007 12:07 PM
Posted to Indiana Law

Law - Update on: Louisville's "Jewish Hospital sues lawyers who unsuccessfully sued it"

This story continues. See update here from The Kentucky Law Blog. See earlier ILB entries here.

Posted by Marcia Oddi on May 31, 2007 12:00 PM
Posted to General Law Related

Ind. Courts - Fort Wayne attorney suspended after DWI conviction

Dionne Waugh of the Fort Wayne Journal Gazette reports today, in a story that begins:

The Indiana Supreme Court has temporarily suspended a local attorney’s law license after he was convicted of drunken driving and injuring a motorcyclist.

In April, an Allen Superior Court judge sentenced Douglas O. Beerbower, 56, of the 4200 block of Winding Way Drive, to four years in prison for operating a vehicle while intoxicated causing serious bodily injury, a felony.

Beerbower, who also has three prior misdemeanor convictions for drunken driving, had been one of the in-house attorneys for Lincoln National Life Insurance for nearly 20 years.

But Beerbower’s felony conviction and temporary suspension do not necessarily mean he’s automatically or permanently barred from practicing law.

The Indiana Disciplinary Commission asked the court to issue the emergency suspension until it is able to investigate further and give Beerbower a chance to respond before having a full hearing in front of the Indiana Supreme Court.

See earlier ILB entry, from April 24, 2007, here.

Posted by Marcia Oddi on May 31, 2007 11:52 AM
Posted to Indiana Courts

Ind. Courts - Hamilton County Superior Court Judge William Hughes featured

An Indianapolis Star story dated May 30th by Ryan Heath is headed "County judge is finalist for seat on state bench." Some quotes:

NOBLESVILLE -- Hamilton County Superior Court Judge William Hughes has witnessed a lot of change in his almost 19 years on the bench, and hopes to have an opportunity to take his skills and experience to the next level as an Indiana Court of Appeals judge.

Hughes said he applied in mid-March to succeed Judge Patrick Sullivan, who will retire Aug. 1 after nearly 38 years on the Court of Appeals.

Hughes was selected as a finalist for the seat May 11 after surviving a vigorous application and interview process with the seven-member Judicial Nominating Commission, which is made up of three lawyers elected by the legal community, three non-lawyers appointed by the governor, and chaired by Indiana Chief Justice Randall Shepard.

The other two finalists for the judgeship are Marion County Superior Court Judges Cale Bradford and Robyn Moberly. Governor Mitch Daniels has 60 days after the commission makes its nominations to select one for the job.

Shepard said Hughes' reputation among his legal peers made him a standout candidate. The chief justice said many judges from across the state have told him when they are in doubt over a legal matter, they seek Hughes' advice.

"He's a judge who's very much sought-after as a teacher of other judges," Shepard said, adding that Hughes has been very involved in continuing education seminars and chaired the Indiana Judicial Center's education committee for several years. * * *

Shepard said the governor and his staff will interview the three finalists in hopes of selecting the new judge by the end of July.

"The people of Indiana are going to win regardless of who is chosen," Shepard said. "These are three outstanding people."

Posted by Marcia Oddi on May 31, 2007 11:47 AM
Posted to Indiana Courts

Ind. Courts - Judge Hanley is reprimanded

The Supreme Court has issued a 2-page public reprimand of John F. Hanley, Judge of the Marion Superior Court, who was arrested for DUI on Dec. 4, 2006. From the document:

Pursuant to a plea agreement, the Respondent pled guilty to the class A misdemeanor charge and the State dismissed the remaining two charges. The court sentenced the Respondent to one year in the Marion County Jail, suspended but for one day served, and to one year of probation. The court accepted additional terms of the plea agreement that included the suspension of the Respondent’s driver’s license for ninety days and the payment of fines, costs, and fees totaling $509.50. * * *

John F. Hanley, Judge of the Marion Superior Court, 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 the Respondent.

For background, begin with this March 7, 2007 ILB entry, headed "Judicial commission charges judge after OWI conviction." A Dec. 7, 2006 Indianapolis Star story cited includes this quote:

Meg Babcock, a lawyer for the Judicial Qualifications Commission, declined to comment on Hanley's case but said the Supreme Court has disciplined five judges for drunken driving since 1986. Typically, judges facing a first drunken-driving offense were given a reprimand and allowed to remain on the bench.

Posted by Marcia Oddi on May 31, 2007 11:35 AM
Posted to Ind. Sup.Ct. Decisions

Courts - It is best not to tell the judge she is "a few french fries short of a Happy Meal"

AbovetheLaw.com had the details, including excerpts from the transcript, in this entry last week.

Today Daniel Ostrovsky of the Daily Business Review has this lengthy story. Here are a few quotes:

Saying a bankruptcy judge was "a few french fries short of a Happy Meal" may cost an out-of-state lawyer the ability to practice in U.S. Bankruptcy Court for the Southern District of Florida.

The comment already has cost Chicago-based McDermott Will & Emery partner William P. Smith his client -- Miami Beach's Mount Sinai Medical Center & Miami Heart Institute.

Bankruptcy Judge Laurel Myerson Isicoff in Miami also slapped the hospital with a restraining order at the same hearing where Smith made his fast-food quip. She found Mount Sinai's anti-competitive actions in the bankruptcy case of South Beach Community Hospital violated bankruptcy law.

During a May 7 hearing, Smith told Isicoff, "I suggest with respect, your honor, that you're a few french fries short of a Happy Meal in terms of what's likely to take place."

Smith's comment and a show-cause order against him were first reported by the legal blog Above the Law. * * *

Isicoff issued the show-cause order May 21 summoning Smith to explain why he should not be suspended from practicing before the court and why his pro hac vice status as a visiting attorney should not be suspended. Isicoff also distributed her order to her colleagues on the district's bankruptcy bench.

Prominent South Florida bankruptcy lawyers say Smith's comment reflects a superior attitude that out-of-town lawyers sometimes display in South Florida courts.

Smith, who heads the national bankruptcy practice at McDermott, has retained the Miami bankruptcy boutique Genovese Joblove & Battista to represent him before Isicoff on the show-cause order set for hearing June 25.

Posted by Marcia Oddi on May 31, 2007 07:46 AM
Posted to Courts in general

Law - This week's Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co

Howard Bashman of How Appealing has collected the newspaper articles on the Supreme Court's ruling Tuesday in Ledbetter v. Goodyear Tire & Rubber Co . Earlier artcles are listed here.

I particular recommend the Linda Greenhouse NY Times article, that begins:

WASHINGTON, May 29 — The Supreme Court on Tuesday made it harder for many workers to sue their employers for discrimination in pay, insisting in a 5-to-4 decision on a tight time frame to file such cases. The dissenters said the ruling ignored workplace realities.

See also the Steven Greenhouse article, also in the Times, headed "Experts Say Decision on Pay Reorders Legal Landscape." A quote:

In yesterday’s 5-to-4 decision, the Supreme Court ruled that workers generally lose their right to sue for pay discrimination unless they file charges within 180 days of a specific event, like a boss giving a worker a smaller raise because of her sex. Establishing a pattern of discrimination over several years will no longer be possible.

Some legal experts said the ruling would put pressure on workers to file discrimination claims within 180 days even when they are still seeking more conclusive evidence that they were discriminated against.

“Unless they notice it on the first paycheck or a recent paycheck, they’re going to be in trouble,” said James Brudney, a professor of labor and employment law at Ohio State University.

Finally, see the Workplace Law Prof Blog and this entry, headed "Some Reflections on the Ledbetter Decision."

Posted by Marcia Oddi on May 31, 2007 07:29 AM
Posted to General Law Related

Wednesday, May 30, 2007

Ind. Law - Judicial Center surveys court-relevant 2007 statutes

This final legislative update, prepared by the Indiana Judicial Center, contains summaries of select bills of interest or portions of bills that were signed into law this session.

Posted by Marcia Oddi on May 30, 2007 01:19 PM
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 6 today (and 16 NFP)

For publication opinions today (6):

In Anthony N. Stewart v. Signe L. (Stewart) Vulliet, an 18-page opinion, Judge Sharpnack writes:

Anthony N. Stewart (“Father”) appeals the trial court’s grant of a motion to dismiss filed by Signe L. (Stewart) Vulliet (“Mother”). Father raises three issues, which we consolidate and restate as whether the trial court abused its discretion by dismissing child custody and visitation issues based upon inconvenient forum. On cross appeal, Mother argues that the trial court abused its discretion by finding that Mother waived any argument regarding their child’s home state under the Uniform Child Custody Jurisdiction Act (“UCCJA”), Ind. Code §§ 31-17-3-1 to -25. We affirm in part, reverse in part, and remand.

The relevant facts follow. Mother and Father married in August 1992 in the State of Washington. They lived in Washington until May 2003, when they relocated to Indiana. Mother’s family lives in Washington, while Father’s family lives in Indiana. * * *

The Washington court clearly gave Mother a more favorable custody arrangement and visitation schedule than the Indiana court had ordered or than Douglass had recommended. The timing and sequence of events in this case give the appearance that Mother was attempting to manipulate the UCCJA to gain a favorable result. As in Bowles, “[w]e cannot allow such manipulation to be rewarded.” Bowles, 721 N.E.2d at 1250. We conclude that, as in Bowles, the trial court erred by granting Mother’s motion to dismiss the custody and visitation issues based upon inconvenient forum. See, e.g., id.

For the foregoing reasons, we affirm the trial court’s determination that Mother waived any argument regarding A.S.’s home state, we reverse the trial court’s grant of Mother’s motion to dismiss the custody and visitation issues, and we remand for proceedings consistent with this opinion.

Terri A. Troyer v. Ronald J. Troyer - "The marriage of Appellant-Respondent Terri A. Troyer (“Terri”) and Appellee-Petitioner Ronald J. Troyer (“Ronald”) was dissolved. On the following day, the trial court found Terri in contempt of court for presenting six post-trial motions. Terri now appeals, challenging the allocation of a tax refund and the trial court’s determination that she was in direct contempt of court. We affirm in part and reverse in part."

"Issues. Terri presents three issues for review: I. Whether the trial court abused its discretion by allocating the parties’ federal income tax refund to the payment of charge account debt rather than allocating it to Terri for the payment of attorney’s fees [ILB - the CA said no]; II. Whether the trial court abused its discretion by denying Terri’s motion for a continuance to permit her fourth attorney to adequately prepare for a hearing [CA - no]; and III. Whether the trial court erred by finding Terri in direct contempt of court and ordering her to pay $500.00 as a sanction. [CA - yes]"

In Richard Wolfe, D.O. v. Estate of Donald Custer , a 21-page opinion, Judge Vaidik writes:

Richard Wolfe, D.O. appeals the judgment in favor of Rosetta Custer (“Rosetta”), for herself and as personal representative of the estate of her late husband, Donald Custer (“Donald”) (collectively, “the Custers”). Wolfe essentially challenges the sufficiency of the evidence, arguing that the trial court erred by entering judgment against him because the Custers failed to present expert medical testimony demonstrating that any increased risk of harm caused by Wolfe was a substantial factor in causing Donald’s harm and showing that Donald’s medical expenses were necessary or causally related to any act or omission by Wolfe. Concluding that the evidence was sufficient to support the jury’s verdict, we affirm the trial court’s entry of judgment in favor of the Custers and against Wolfe. * * *

In summary, the evidence was sufficient to support a finding of medical malpractice against Wolfe, and the trial court did not err by entering judgment for $432,000.00 in favor of the Custers and against Wolfe.

In Trustcorp Mortgage Company v. Metro Mortgage Company, Inc. , a 22-page opinion with Chief Judge Baker's dissent beginning on p. 20, Judge Friedlander writes:

Trustcorp Mortgage Company (Trustcorp) appeals the trial court’s order denying its motion for summary judgment and granting summary judgment in favor of Metro Mortgage Co., Inc. (Metro). We affirm. * * *

[W]e conclude that the designated evidence establishes that Metro did not contract to provide a perfect appraisal, but that it agreed to produce origination documents, including an appraisal, in accordance with the requirements drafted by Trustcorp and set forth in the Buy/Sell Agreement. Furthermore, in obtaining a licensed appraiser, and in satisfying all other requirements set forth in Sections 106 and 106.1, Metro fulfilled its contractual obligations and was therefore not in breach of its contract with Trustcorp when it refused to repurchase the Schulke loan. The fact that both Trustcorp and Fannie Mae subsequently purchased the Schulke loan further substantiates our conclusion that Metro’s origination documents did in fact “qualify for” Fannie Mae. Judgment affirmed.

CRONE, J., concurs. BAKER, C.J., dissents with separate opinion [which begins:] I respectfully dissent from the majority’s interpretation of the Buy/Sell Agreement and from the ultimate disposition of this matter. Initially, I quarrel with the application of the rule by which we construe an ambiguity in contract language against the drafting party. Here, the contracting parties were two large, sophisticated businesses that regularly entered into agreements that are similar to the one at issue herein. Under these circumstances, I believe that there should not be an automatic presumption against the drafting party, inasmuch as both parties are on equal footing with respect to the content, negotiation, and application of the agreement.

Moreover, I find a well-established, long-standing rule to be instructive: “Public policy holds that he who is best able to avoid a loss should bear it.”

Brett Gibson v. Thomas A. Neu and Elizabeth A. Neu , a 25-opinion, concludes: "In summary, we conclude that the trial court erred by granting summary judgment to the Neus and Washington Mutual regarding the release of Gibson’s mortgage. However, we conclude that the trial court properly granted the Neus and Washington Mutual equitable subrogation over Gibson’s mortgage."

In Safe Auto Insurance Company v. Farm Bureau Insurance Company, et al. , a 9-page opinion on rehearing, the Court reverses its earlier opinion (Nov. 8, 2006 - see ILB entry here - 2nd case) affirming the trial court. Judge Robb concludes:

We stand by our original determination regarding Safe Auto’s obligation under its policy language to cover Duran’s vicarious liability. The policy agrees to indemnify Duran for vicarious liability and pursuant to a Michigan statute, she was vicariously liable for this claim.3 For that reason, her omissions with regard to Badillo – the omissions primarily focused on by the parties – are not material, because Duran would have been vicariously liable regardless of who was driving her vehicle. But also for that reason, her omission with regard to her move to Michigan is material. As Safe Auto has noted, the Michigan statute imposes vicarious liability that Indiana law, which would apply had the accident occurred here, would not. As the move preceded the policy renewal, Duran is not covered because her move to Michigan directly affected the risk accepted as well as the loss incurred. The trial court erred in granting summary judgment to Farm Bureau and in denying it to Safe Auto. Reversed.

NFP civil opinions today (5):

Brian D. Hodges v. Eli Lily Federal Credit Union (NFP) - "Regardless of whether or not Hodges was properly served, the issue is now moot as the judgment has been fully satisfied."

Granger Family Dentistry v. Preferred Health Care (NFP) - "The small claims court did not err as a matter of law by determining that Granger was contractually obligated to pay Preferred Health $1,800.00 annually and owed the unpaid balance for the contract year of mid-2006 to mid-2007."

Gary F. Otto v. Peggy S. Fox (NFP) - "Gary F. Otto appeals the trial court’s ex parte order for protection. We reverse and remand with instructions. * * * Otto filed his request with the trial court nine days after the order was issued, and yet the trial court denied his motion without explanation. At the very least, Otto has established prima facie error. “On the face of it,” the trial court violated Otto’s due process rights by denying him the opportunity to defend himself in this matter. Therefore, we reverse the trial court’s order denying Otto’s motion for hearing, and we remand for the trial court to schedule a hearing to occur within thirty days of the date of this opinion."

Adoption of C.M.M.; Julie P. Parker v. Annamaria Miller (NFP) - "Appellant-respondent Julie Pastorious, formerly Julie Parker, appeals from the trial court’s order granting appellee-petitioner Annamaria Miller’s petition to adopt Julie’s biological child, C.M.M., and terminating Julie’s parental rights. Specifically, Julie contends that there is insufficient evidence in the record supporting the trial court’s conclusion that Julie’s consent to the adoption was not statutorily required. Finding no error, we affirm the judgment of the trial court."

Ted A. Czanderna v. Noreen F. Fear (NFP) - "Appellant-Respondent, Ted A. Czanderna (Czanderna), appeals the trial court’s protective order enjoining him from contact with Appellee-Petitioner, Noreen Faye Fear (Fear), and members of Fear’s family, for a period of two years. We affirm."

NFP criminal opinions today (11):

Mark A. Darnell v. State of Indiana (NFP)

Adam Ross v. State of Indiana (NFP)

Christopher Mershon v. State of Indiana (NFP)

Brian K. Barrick v. State of Indiana (NFP)

Anquan Walters v. State of Indiana (NFP)

David Parado v. State of Indiana (NFP)

Timothy J. Ryon v. State of Indiana (NFP)

Harold W. Craigo, Jr. v. State of Indiana (NFP)

A.S. v. State of Indiana (NFP)

Brandon Gregg v. State of Indiana (NFP)

Michael Nunez v. State of Indiana (NFP)

Posted by Marcia Oddi on May 30, 2007 12:24 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on yesterday's CA decision on murder charge filed 12 years later

Yesterday's Court of Appeals decision In Ralph Barnett v. State of Indiana (see ILB entry here - 2nd case) is the subject of a lengthy story today by Shawn McGrath in the Anderson Herald Bulletin. Some quotes:

In an opinion issued Tuesday, the Indiana Court of Appeals reversed a Pendleton Correctional Facility inmate’s voluntary manslaughter conviction because the state waited too long to bring the case to trial.

Madison Superior Court 3 Thomas Newman Jr. sentenced Ralph Barnett, 54, to 30 additional years in prison on Class A felony voluntary manslaughter in March 2006 for stabbing to death fellow inmate 29-year-old Ricky L. Combs in January 1993. Originally charged with murder, a jury found him guilty of the lesser crime.

In his opinion, Appellate Court Judge James S. Kirsch writes that the Madison County Prosecutor’s Office erred in waiting until July 2005 — 12 years after the slaying — to file a murder charge against Barnett, despite knowing he was a likely suspect.

“Repeatedly, throughout the record, the State concedes that the investigators and prosecutors on Barnett’s case made a mistake by waiting 12 years to prosecutor him,” Kirsch writes. “While there is no direct evidence that the delay was intentional, there is no evidence that the delay was justified.”

Because the prosecutor’s office waited so long to file the murder charge, several potential witnesses — including the prison’s chief internal investigator and an Indiana State Police detective on the case — had died when the case finally went to trial, endangering Barnett’s ability to get a fair trial.

“The State, without plausible explanation or justification, delayed for more than 12 years in bringing charges in this case,” Kirsch writes. “There is no explanation for why the prosecutor, now deceased, allowed a case to sit in his office for over a year and a half without looking at it or why he returned it to the investigator instead of leaving it for his successor.

“Here, Barnett was clearly prejudiced by the State’s unexplained and unjustified delay — whether intentional or negligent — in bringing the charges.” * * *

Further clouding the investigation, six knife-like weapons, all similar, were found on Barnett’s and Combs’ cell block, but guards didn’t document which weapon was discovered in which cell.

“Barnett was the only suspect questioned about Combs’ death at the time it happened in 1993,” Kirsch writes. “No additional evidence was sought or discovered to cause the state to bring charges at anytime after the initial investigation. It is undisputed that Barnett stabbed Combs. The issues are whether Barnett acted in self-defense and whether another inmate (or more than one) with a knife may have also stabbed Combs causing the fatal stab wound.”

Posted by Marcia Oddi on May 30, 2007 08:56 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Update on "Court tosses challenge to hunter harassment law"

The Supreme Court has denied transfer in the case of a Beverly Shores couple's challenge to the state's hunter harassment law. Bob Kasarda of the NWI Times has a report on the denial today.

A check of the records shows the actual denial occurred April 13th and is listed on p. 3 of this transfer list - both the ILB and the NW Indiana papers failed to pick up on it at the time. The Clerk's docket shows the denial vote was 4-1, with Justice Sullivan voting to reveiw the case.

Today's story:

The Indiana Supreme Court has opted not to consider a Beverly Shores couple's challenge to the state's hunter harassment law.

Frederick and Rosanne Shuger now are considering taking their case to the U.S. Supreme Court, according to the couple's Chicago attorney, James Morsch.

Morsch said to his knowledge, no state hunter harassment law has been argued before a state supreme court.

"I thought it would be a good case to take up," he said.

The Shugers were convicted in July 2005 of violating the state law by interfering with a town-sanctioned deer kill four years earlier in Beverly Shores.

Frederick Shuger, who also was found guilty by the jury of a more serious offense of intimidation, was sentenced to 15 days of community service and one year and four months of unsupervised probation.

Rosanne Shuger was sentenced to five days of community service and four months of probation.

The couple targeted a section of the law that prohibits behaviors "that will tend to disturb or otherwise affect the behavior of a game animal."

The wording is unconstitutional in that it is both over broad and vague, according to the couple's challenge to the Indiana Court of Appeals that was thrown out earlier this year.

"There is no objective description of what behavior would land you in trouble with the state," Morsch has said.

This clause places Indiana's law at the extreme when compared to most other hunter harassment statutes around the country, according to the appeal. If allowed to stand, the law will chill the expression of free speech.

The Indiana Court of Appeals upheld the hunter protection law as constitutional, ruling it regulates only the place and manner of speech.

The Shugers had compared the Hunter Harassment Act to a law against flag burning that was struck down by the federal courts. That comparison does not apply, the appeals court ruled, because the hunter harassment law does not restrict the content of speech.

The ILB has had a number of earlier entries on this case - here is the list. See particularly this ILB entry from January 23, 2007.

Posted by Marcia Oddi on May 30, 2007 08:15 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: Supreme Court reinstates trial court's murder conviction

Updating yesterday's ILB report on the Supreme Court's decison in Ronnie Drane v. State, here is some press coverage.

The Gary Post-Tribune has a story headed "High court reinstates 85-year sentence," reported by Ruth Ann Krause. Some quotes:

Ronnie Dontell Drane is a convicted killer and rapist once again.

The Indiana Supreme Court reinstated Drane's convictions in the 2002 rape and murder of Tamarra "Precious" Taylor, which had been reversed by the Indiana Court of Appeals last year because of insufficiency of evidence.

The court's opinion reinstates the 85-year sentence Drane re-ceived in February 2005 from Lake Superior Court Judge pro tem Thomas Webber Sr., who presided at Drane's bench trial.

Taylor, 25, of Hammond, was found partially clothed at M.C. Bennett Park at 25th Avenue and Grant Street in Gary on May 27, 2002.

"To make a long story short, we think the Court of Appeals reweighed the evidence," Chief Justice Randall Shepard wrote. "It is the fact-finder's role, not that of the appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction."

Drane, who remains in custody at the Indiana State Prison in Michigan City, has two more murder cases pending.

From an AP story in the Indianapolis Star:

The state Supreme Court on Tuesday reinstated murder and rape convictions against a Gary man, overturning a state appeals court ruling that prosecutors did not present enough evidence to support the convictions.

The high court unanimously ruled that the conviction of Ronnie Drane should be reinstated, saying: "There is more than sufficient evidence to support both the murder and rape convictions."

Two years ago, Lake Criminal Court Judge Thomas Webber found Drane guilty of killing 25-year-old Tamarra Taylor of Hammond and sentenced him to 85 years in prison. Drane was accused of raping and strangling Taylor in a Gary park in May 2002.

Drane, 33, testified he had consensual sex with Taylor and that she left his house unharmed.
The Supreme Court said the appeals court improperly "reweighed the evidence" last year when it reversed the convictions.

In the ILB entry yesterday I mentioned that the Court of Appeals ruling was not readily available because it had been designated NFP and at the time, NFPs, although available in paper form from the Clerk's Office, were not posted online.

This morning in my email I found a scanned (and then OCRed) copy of the June 29, 2006 Court of Appeals opinion in Drane v. State. Thanks to Bloomington attorney Michael Ausbrook, editor of the excellent Indiana blog INCourts (dedicated to commentary on criminal appellate opinions).

Posted by Marcia Oddi on May 30, 2007 07:38 AM
Posted to Ind. Sup.Ct. Decisions

Tuesday, May 29, 2007

Ind. Decisions - On the Supreme Court's calendar for tomorrow

Oral arguments before the Supreme Court tomorrow in two cases:

9:00 AM - Michael Robertson v. State

Following a jury trial, the Marion Superior Court entered a judgment of conviction for theft as a Class D felony and sentenced Robertson to an enhanced term of 2 years to be served consecutive to his sentence for a drug offense in another county. In an unpublished memorandum decision, the Court of Appeals determined there was sufficient evidence, and affirmed the conviction. As to the enhanced sentence and the interpretation of Indiana Code § 35-50-2-1.3, the Court of Appeals remanded with instructions for the trial court to impose the advisory sentence, but noted the conflict with White v. State, 849 N.E.2d 735 (Ind. Ct. App. 2006), trans. denied. See Michael Robertson v. State, No. 49A05-0512-CR-731, slip op. (Ind. Ct. App. Jan. 24, 2007), vacated. [ILB - see discussion of the CA split on the interpretation of § 35-50-2-1.3 beginning on p. 6 of Robertson.]

The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorney for Robertson: Kurt A. Young Nashville, IN Attorney for State: Justin F. Roebel Indianapolis, IN

9:45 AM - Idan Filip v. Carrie Block

On the Filip's claim against an insurance agent and insurance agency for negligent failure to procure insurance, the Starke Circuit Court entered summary judgment for the insurance defendants. The Court of Appeals reversed, indicating that the main designation of evidence pursuant to Trial Rule 56 should be in the summary judgment motion, finding issues of fact about whether the Filips reasonably relied on the agent's representations, and determining that the statute of limitation began to run on the day of the fire. Filip v. Block, 858 N.E.2d 143 (Ind. Ct. App. 2006), vacated.

The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorney for Filip; Robert W. Mysliwiec of South Bend, IN. Attorney for Block; Philip E. Kalamaros of St. Joseph, MI.

Posted by Marcia Oddi on May 29, 2007 01:52 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In the Matter of V.C., and Sarah Thomas v. Christopher Carlson, Marion County Department of Child Services and Child Advocates, Inc. is a 27-page opinion, with J. Riley's dissent beginning on p. 25. Judge Kirsch writes for the majority:

Sarah Thomas (“Mother”) appeals the trial court’s adjudication of her daughter, V.C., as a Child in Need of Services (“CHINS”) as well as the consolidation of the CHINS case with Christopher Carlson’s (“Father”) paternity action. * * * We affirm.

FRIEDLANDER, J., concurs. RILEY, J., dissents with separate opinion [which begins]: I respectively dissent from the majority because (1) I do not believe Father’s request to amend the CHINS petition effectively notified Mother that the threat she posed to V.C. would be an issue at trial, and (2) I believe it was improper to consolidate the CHINS action with Father’s paternity and custody action.

In Ralph Barnett v. State of Indiana , a 9-page opinion, Judge Kirsch writes:

Ralph Barnett appeals his conviction for voluntary manslaughter, a Class A felony. Barnett raises two issues on appeal, one of which is dispositive: whether the trial court erred in denying his Motion to Dismiss. We reverse. * * *

Here, the State, without plausible explanation or justification, delayed for more than twelve years in bringing charges in this case. There is no explanation for why the prosecutor, now deceased, allowed a case to sit in his office for over a year and a half without looking at it or why he returned it to the investigator instead of leaving it for his successor. During this time, a number of key witnesses have died; and several more no longer have any recollection of the events which gave rise to this case. There were apparently at least twenty inmates out of their cells and in the area when the incident occurred. Lack of key witnesses makes it more difficult for Barnett to support his claim of self-defense. Furthermore, in a shakedown of the areas after the incident, six knives were found. There is no evidence of who possessed those knives, no testimony from the person or persons who collected the knives, no DNA testing on the knives, and no medical testimony as to whether more than one knife was used in the stabbing or which knife caused the wound to the stomach which, according to the autopsy report, was the proximate cause of Combs’ death.

Here, Barnett was clearly prejudiced by the State’s unexplained and unjustified delay -- whether intentional or negligent -- in bringing charges. Reversed.

NFP civil opinions today (1):

In the Matter of the Parent-Child Relationship of M.H.; Wendy Hoskins and Charles Roberts v. Delaware County Division of Family & Children (NFP) - "Wendy Hoskins (“Mother”) and Charles Roberts (“Father”) appeal the trial court’s termination of their parental rights with respect to M.H., a minor child. They each raise a single issue for our review, which we restate as whether the Delaware County Division of Family and Children (“DFC”) presented sufficient evidence to support the termination of their respective parental rights. We affirm."

NFP criminal opinions today (6):

Randal R. Shepard v. State of Indiana (NFP) - Yes, I did a doubletake too!

David Bezy v. State of Indiana (NFP)

Aaron Reid v. State of Indiana (NFP)

Jeffrey A.R. Stephens v. Jessica Stephens (NFP)

Justin N. Shinabarger v. State of Indiana (NFP)

Jarrod A. Milner v. State of Indiana (NFP)

Posted by Marcia Oddi on May 29, 2007 01:30 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court reinstates trial court's murder conviction

In Ronnie Drane v. State, a 7-page, 5-0 opinion, Chief Justice Shepard writes:

At the conclusion of a bench trial, the court found appellant Ronnie Drane guilty for the rape and murder of Tomorra “Precious” Taylor and sentenced him to a combined total of eighty-five years. The Court of Appeals reversed for insufficient evidence. Having granted transfer, we affirm the trial court. * * *

Sufficiency of the Evidence. To make a long story short, we think the Court of Appeals reweighed the evidence. * * *

Conclusion. We affirm the trial court.

Although it would be interesting to read the June 29, 2006 Court of Appeals opinion, it was designated Not For Publication at the time, and this action came before the decision of the courts in the fall of 2006 to make NFP opinions available online.

A July 27, 2006 ILB entry quoted from a belated newspaper report of the ruling and noted:

Although this is a reversal, the panel determined it did not meet the criteria of Appellate Rule 65, and designated the 15-page opinion as Not for Publication (NFP). Thus it is not available on the court website. * * * Opinions designated by the Court of Appeals panel as "not-for-publication" currently are neither generally available nor citeable. But they are public documents. Why should they not be made available online, along with the other rulings of the Court of Appeals?

Interestingly, a petition for rehearing was filed in the Drane case, which the Court of Appeals granted in a Sept. 8, 2006 ruling. (This rehearing is not noted in today's opinion.) Although also designated NFP, this Sept, 8, 2006 ruling came after the decision to post NFPs online, and so may be accessed here. A quote from p. 2 of the opinion:

As noted in our memorandum decision, we are well aware that we must not reweigh the evidence or judge the credibility of witnesses. We reversed Drane’s convictions because our review of the evidence did not reveal substantial evidence of probative value to support them.

Posted by Marcia Oddi on May 29, 2007 11:19 AM
Posted to Ind. Sup.Ct. Decisions

Monday, May 28, 2007

Ind. Courts - Court employee charged with changing computer records in his own case

Ruthann Robinson of the NWI Times reported Saturday:

CROWN POINT | Investigators said a former employee of the Lake County clerk's office made computer changes to his own criminal case.

Prosecutors charged Karl Gaisser, 55, of Schererville, the defendant in the case he's accused of changing, with felony computer tampering and misdemeanor computer trespass.

Gaisser had previously been charged with conversion, or stealing.

The chief bailiff of the Schererville Town Court discovered the discrepancies after the victim in the conversion case called about restitution Gaisser owed him, court records show. Details about the conversion case were not available Friday.

When the bailiff checked the entries on the computer system against the court file, he saw that six orders had been deleted and a notation that the case had been dismissed had been entered, court records allege. No such dismissal order existed.

A check of the electronic Courtview system Friday showed the discrepancies had not yet been corrected.

Gaisser worked in the juvenile division of the Lake County clerk's office until he resigned May 7, court records state.

Stve Walsh of the Gary Post Tribune had a similar report:

A Lake County deputy clerk was accused of trying to dismiss his own criminal case Friday.

Karl Gaisser, 55, of Schererville was charged with a felony count of computer tampering and a misdemeanor count of computer trespass.

Gaisser, a worker in the juvenile division of the Lake County Clerk's office, was scheduled to appear in Schererville Town Court on charges of conversion. A worker in the town court noticed the changes in the county's Court View electronic record system, after the victim in the case, Walter Alexander, called the town court asking about restitution, according to court documents.

Detectives with Schererville Police found most of the changes were made under Gaisser's password in the county clerk's office. Gaisser told police he resigned May 7 from the clerk's office for an unrelated matter, after working in the office since July 2006.

He suggested his co-workers may have changed his case, under his password, while he was away from his computer.

The ILB has quoted from these reports at length because the security and reliability of electronic court and other legal records are issues which this blog hopes to address in coming weeks: Are they "official"? Are they authentic? Are they permanent and secure?

Posted by Marcia Oddi on May 28, 2007 09:09 AM
Posted to Indiana Courts

Law - "More than half the cases the court agrees to hear are not constitutional, but statutory"

Linda Greenhouse of the NY Times has a column today that discusses the importance of the statutory cases the Supreme Court decides to hear:

More than half the cases the court agrees to hear are not constitutional, but statutory, presenting questions much like the one posed by Hackworth v. Progressive Casualty Insurance Company, No. 06-1300. To whom does a statute apply? Precisely what behavior does it prohibit? How does it fit with another law on the books that seems to suggest something quite different? * * *

The 73 cases the court selected for argument during the current term included 41 statutory cases, 27 that raised chiefly constitutional issues and 5 other kinds that raised issues of retroactivity and jurisdiction. (These calculations are subject to interpretation; at the margins, the categories can easily overlap, as when the court is asked to interpret a statute in such a way as to avoid a potential constitutional problem.)

Statutory cases are not necessarily less challenging for the justices or less important to the country than constitutional cases; whether the Clean Air Act applies to global warming, to recall one statutory case from the current term, is a question with more impact than whether a certain type of appeal in patent cases meets the jurisdictional requirements of Article III of the Constitution, to recall another case, this time a constitutional one.

Read the column itself for more on the Hackworth case.

Posted by Marcia Oddi on May 28, 2007 08:57 AM
Posted to General Law Related

Environment - "Cleaning Up the Clean Water Act"

Today's NY Times has an editorial endorsing pending proposals to strengthen the Clean Water Act:

A series of murky Supreme Court decisions have left the agencies responsible for enforcing the Clean Water Act in a state of confused paralysis, exposing millions of acres of wetlands and thousands of miles of streams to illegal and destructive development. Companion bills in the House and Senate would solve this problem by reaffirming the broad protections intended by Congress when it passed the law nearly 35 years ago. These bills deserve prompt passage.

Two factors have caused the confusion — ambiguity in the law itself, and a Supreme Court looking for any excuse to narrow the regulatory reach of the federal government.

There is little doubt that Congress originally intended to extend federal protection to all the waters of the United States, from small streams and wetlands to large rivers. But because the word “navigable” pops up in the act from time to time, developers and other opponents of the law have argued that it should apply only to large, clearly navigable waters or streams immediately adjacent to such waters — thus excluding most of the waters of the United States from federal jurisdiction.

A Supreme Court decision last June left the matter more tangled than ever. One result is that for nearly a year the agency responsible for carrying out the law — the Environmental Protection Agency — has not been able to issue guidance to its field staff, opening the way to the pollution of waters that should have been protected.

The bills before Congress would resolve the issue in favor of the broadest possible protection by removing the word “navigable” from the law and by specifying in detail the waters — large rivers, tiny streams, ponds, lakes and wetlands — to be protected. All of which, of course, makes perfect hydrological and ecological sense. The destruction or pollution of any part of an aquatic system affects the integrity of the whole system.

Posted by Marcia Oddi on May 28, 2007 08:45 AM
Posted to Environment

Sunday, May 27, 2007

Law - "Is It OK for Lawyers to Copy Complaints?" And what about copyrighting briefs?

The Wall Street Journal Blog had a thought-provoking entry May 16th asking "Is It OK for Lawyers to Copy Complaints?" Peter Lattman of the WST Blog writes that of the two class-action lawsuits he had reviewed this month, the second "bears a striking resemblance to" the first, filed by another firm. Lattman contiues:

Last year we linked to a law review article on this topic. Law professor Davida Isaacs noted that “infringement suits against fellow members of the Bar may be on the horizon,” but said this would be a bad idea. Copying another firm’s litigation documents, she said, should qualify as “fair use” under the copyright laws because it doesn’t diminish those documents’ market value.

The 56-page article is titled "The Highest Form of Flattery? Application of the Fiar Use Defense against Copyright Claims for Unauthroized Appropriation of Litigation Documents," by Davida H. Issacs and appeared in the Missouri Law Review.

There are a number of interesting comments following the entry, including "Comment by IP lawyer - May 16, 2007 at 5:08 pm," "Comment by Frank Pasquale of ConcurringOpinions.com - May 16, 2007 at 5:24 pm ," and "Comment by Professor Davida Isaacs - May 17, 2007 at 12:42 am."

As for copyrighting briefs, apparently that was an issue several years ago but I haven't been able to find anything more recent than a brief discussion on the Law Librarians listserv from 4/17/02 referencing a "story on Marketplace (from Minnesota Public Radio and PRI) focused mainly on Milberg' disenchantment with other class-action litigators scanning, editing and filing briefs they had written." Using that, I was able to locate the Marketplace show from Tuesday, April 16, 2002. Here is the show description, including a link to the audio. The segment of interest:

Copyrighted Briefs
No, not those kind of briefs. Wouldn't you know it. Lawyers are in the habit of copying each other's legal briefs. And some lawyers -- those whose work is often duplicated -- are looking to copyright their documents, to prevent just this sort of thing from happening. But is this practical, in a branch of our social system that is so dependent on precedent? Amita Sharma has the story.

The segment (just over 3 minutes long) starts at 10:40 minutes into the program, and those interviewed pretty much put a damper on the idea, which may be why we haven't heard much about it in the past 5 years.

Posted by Marcia Oddi on May 27, 2007 10:57 AM
Posted to General Law Related

Ind. Courts - Update on one of the Evansville attorneys charged with meth violations; suspension recommended for Bloomington attorney

Updating this May 11th ILB entry titled "Two young attorneys in different parts of the state in court for drug/alcohol related charges," the Evansville Courier & Press reports, in a story by Kate Braser, that:

The pastor of a local attorney accused of having a meth lab in her home is convinced the woman is determined to overcome her addiction to the drug.

The Rev. Jeffrey Stratton, pastor of American Baptist East Church, expressed his belief during testimony at a bond hearing Friday morning for attorney Teresa Perry. She was arrested earlier this month and charged with eight counts related to possessing and distributing methamphetamine.

The day after Perry was arrested on charges of dealing methamphetamine after she allegedly sold drugs to a police informant, investigators reportedly discovered a meth lab inside her rental home in the 3300 block of Waggoner Avenue. The home is within 1,000 feet of McGary Middle School.

At Friday's hearing, her attorney, Douglas Walton, said arrangements had been made to admit Perry into Tara Treatment Center Inc. in Johnson County, Ind. * * *

"This is a unique case," Walton said as he tried to persuade Superior Court Judge Scott R. Bowers that Perry would not be a flight risk at the treatment facility.

"Here we have an individual who has maintained a practice as an officer of this court. She has a lot at stake, her recovery, her health and her future," he said.

After Bowers expressed concern about allowing Perry to seek treatment so far from Vanderburgh County, Stratton said his church would pay for a GPS ankle bracelet to track her while she is at the facility, to ensure she stays.

According to a report ($$$) in the Bloomington Herald-Times yesterday by James Boyd:

A hearing officer appointed by the Indiana Supreme Court has recommended a Bloomington attorney be suspended for no less than two years over accusations he violated professional conduct standards.

David Colman has 30 days to file an appeal with the Supreme Court, which will ultimately determine any punitive measures against him.

The hearing officer, Evansville attorney Leslie Shively, recommended Colman’s suspension after finding two violations of proper conduct. Three complaints had been lodged by clients, but Shively found Colman did not do anything wrong in the third allegation.

Seth Pruden, staff attorney for the Indiana Supreme Court Disciplinary Commission, said Shively found enough evidence to rule against Colman in the matters of George Archer and Michael Massey.

In 2002, Colman drafted the will for Archer — then 95 years old — and named himself as Archer’s primary beneficiary to the $250,000 estate.

Massey’s case revolved around payments made toward legal fees while he was facing federal drug charges.

According to Massey’s initial complaint, he told Colman to go to his condominium and get $20,000 he had hidden, and $30,000 from a safety deposit box for Colman’s legal services. Instead of depositing the money into a designated trust account, Massey says, Colman put the money in his own personal account and took over ownership of Massey’s condo.

After Massey discovered the move, he filed his complaint against the attorney.

Shively ruled in favor of the disciplinary commission in both of those complaints, Pruden said. * * *

Ultimately, though, it will depend on what the Supreme Court decides before Colman knows his fate. The court can recommend giving Colman a warning, a suspension, or even disbarment. If he does receive a two-year suspension, he will have to apply to be reinstated as an attorney.

Colman now has 30 days to file a petition to have Shively’s findings reviewed.

“Nothing will happen until those 30 days have run,” Pruden said. A Supreme Court decision could take a month or two.

Until that time, Colman remains in good standing to practice law.

Posted by Marcia Oddi on May 27, 2007 10:35 AM
Posted to Indiana Courts

Saturday, May 26, 2007

Ind. Decisions - "Appeals court upholds dismissal of U.S. Grand Prix lawsuit"

Here is an AP story on the 7th Circuits ruling yesterday upholding Judge Sarah Evans Barker's "dismissal of a class-action lawsuit against Formula One, French tiremaker Michelin and the Indianapolis Motor Speedway by fans upset with the boycott of the 2005 U.S. Grand Prix by seven race teams." From the story:

Angry fans sued after concerns about tire safety prompted 14 of 20 drivers to pull off the track just as the race was about to start. The fans argued that the defendants were obligated not only to put on a race, but to put out their best efforts to make it exciting.

But Chief Judge Frank Easterbrook dismissed such claims in the 14-page ruling. The reduced race was allowable under F1 rules, he wrote, "and once it is established that the plaintiffs received a regulation race, they admit that they had no additional right to a race that was exciting or drivers that competed well."

The discord led to months of uncertainty over the race's future at Indianapolis. The 2007 U.S. Grand Prix is scheduled for June 17 at the speedway.

The Associated Press left a phone message Friday seeking comment from Indianapolis attorney Henry J. Price, who represented the plaintiffs.

Posted by Marcia Oddi on May 26, 2007 10:16 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on Joel M. Schumm v. State

One of the Court of Appeals opinions issued last Monday, May 21st was Joel M. Schumm v. State of Indiana, a 27-page opinion in which attorney and IU Law prof Joel Schumm represented himself. See the ILB summary here - third case. This is the case where, as the CA ruled, the trial court "improperly denied Schumm’s Batson challenge."

Today Kevin Leininger of the Fort Wayne News-Sentinel has an opinion piece on the decision, headlined "Taxpayers lose most in retrial of taillight case: Richards wants to retry, but we should reserve jury trials for important cases." Some quotes from the lengthy article:

A lot of people thought it was just plain silly to spend Allen County taxpayers’ money on a jury trial about a broken taillight.

So what would you call doing it twice?

We may soon find out, now that the Indiana Court of Appeals has thrown out the $100 fine an Allen Superior Court judge imposed last July against Indianapolis attorney Joel Schumm.

“We will retry the case. Why not?” said Prosecutor Karen Richards.

Why not? More on that later. But first, a little background. As befits this incredibly goofy but expensive case, the verdict was thrown out on a bizarre legal technicality having absolutely nothing to do with what happened on Dec. 23, 2005.

Schumm, 36, an associate professor at the Indiana University School of Law in Indianapolis, was visiting a friend when Fort Wayne Police officer Martin Grooms ticketed him for an “improper taillight” while driving his blue 2002 Volkswagen Jetta near Peal and Webster streets.

Schumm argued police department guidelines recommend a warning in such cases, and challenged the ticket in court. Last July, the jury took less than 30 minutes to decide he had broken the law, after which Judge Marcia Lansky imposed the fine.

Schumm paid the fine, but appealed the verdict. Last week, the Appeals Court decided several errors had been made in the original trial – one of which was serious enough to throw out the jury’s original verdict.

It seems Schumm – a young, white, presumably affluent professor and attorney – was unconstitutionally victimized by racial discrimination when prosecutors rejected the only black member of the jury pool.

In 1986, the U.S. Supreme Court ruled in Batson vs. Kentucky that attorneys could not base one of their automatic or “peremptory” challenges to prospective jurors solely on the juror’s race. When the prosecutor in Schumm’s case excused the only black prospective juror without stating a reason for doing so, Schumm objected. But Lansky ruled the Batson case didn’t apply because Schumm is white.

“The state did not provide a race-neutral explanation (for excusing the prospective juror), as the trial court did not give it the opportunity,” the Appeals Court decision states. “Therefore, the trial court’s rejection of Schumm’s Batson claim was clearly erroneous.” * * *

“You can’t put a price on principle,” said Schumm, who has made the 200-mile round trip to Fort Wayne at least five times to defend himself. “I feel vindicated.”

“We’re all paid to try cases, and we have a budget for juries,” added Richards, arguing the additional cost of a second trial would be minimal.

All of which misses the obvious point: Prosecutors, judges, jurors and support personnel who could have been paid to decide important cases were instead squandered on a case that never would have been tried if not for an officer’s need to meet a quota – a case that may be retried on the flimsiest of technicalities. Settle this farce. Now.

Posted by Marcia Oddi on May 26, 2007 10:03 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "New Albany man gets 20 years in prison, again"

Jennifer Rigg of the New Albany News-Tribune reports today:

NEW ALBANY — A New Albany man again was sentenced to 20 years in prison Thursday after his initial 20-year sentence for shooting and killing a Jeffersonville man was overturned by the Indiana Court of Appeals.

Floyd County Circuit Court Judge J. Terrence Cody gave 29-year-old Steven I. Paul the same sentence — 20 years with one year suspended to probation — as he did in 2004 after a jury convicted Paul of aggravated battery. Paul was originally charged with murder for shooting 35-year-old Donald Burnett, but a jury returned a guilty verdict for a lesser offense of aggravated battery.

Judge Cody then decided that five aggravating circumstances existed in the case — the main one being that the battery resulted in Burnett’s death — and sentenced Paul to the maximum sentence. Without the aggravators, Paul likely would have received the presumptive sentence of 10 years and could possibly have been released from jail as early as next month.

Judge Cody’s original sentence was overturned after rulings by the U.S. and Indiana supreme courts led to changes in sentencing rules. A jury is now required to find that aggravated circumstances exist before a judge can use them to lengthen a presumptive sentence.

But last month, a Floyd County jury partially agreed with Cody and decided two aggravating circumstances existed in the case: the battery resulted in Burnett’s death and the shooting occurred in a public place during the day. They rejected two others: that Burnett was unarmed and that he was shot in the back.

Only one aggravator is needed for a judge to enhance a sentence. * * *

During Thursday’s second sentencing hearing, [Paul’s attorney, John W. Mead of Salem] asked Cody to consider what he considered several mitigating circumstances — those that could lessen a sentence — including Paul’s completion of two college degrees while incarcerated at Branchville Correctional Facility in Tell City and that he had a minimal criminal history. Cody rejected Mead’s request, saying he found no mitigating factors in the case, and that the fact that Burnett died from his injuries “far outweighed any other circumstances.”

An earlier ILB entry on this case, from Sept. 6, 2006, quotes from a Louis Curier Journal story that begins:

Floyd Circuit Court Judge J. Terrence Cody will decide soon whether to remove himself from the re-sentencing trial of a New Albany man convicted last year in the shooting death of a Jeffersonville man.

An attorney for Steven Paul argued on Friday that Cody should step aside because his previous sentencing of Paul creates an appearance of bias.

Cody sentenced Paul, 27, last year to the maximum 20 years in prison after he was convicted of aggravated battery in the fatal shooting of 35-year-old Donald "Ducky" Barnett.

The Indiana Court of Appeals threw out the sentence because of new sentencing procedures called for in federal and state Supreme Court rulings made after Paul's trial.

Posted by Marcia Oddi on May 26, 2007 09:54 AM
Posted to Ind. App.Ct. Decisions | Ind. Trial Ct. Decisions

Law - Still more on: Louisville's "Jewish Hospital sues lawyers who unsuccessfully sued it"

Updating these two stories from the past few weeks, Andrew Wolfson of the Louisville Courier Journal reports today:

In an unusual move for a plaintiff in a lawsuit, Jewish Hospital has asked a Jefferson circuit court judge to bar lawyers on either side from discussing its suit against two lawyers who unsuccessfully sued the hospital over allegedly unsanitary conditions.

Responding in court papers, Gary Weiss, who represents one of the lawyers, called the motion hypocritical, noting that the hospital already has twice commented to the media on its suit, including for a story in The Courier-Journal.

"The dread of having press coverage at that time did not dawn on the hospital because one of its media people was all too happy to be freely quoted about the alleged horrors perpetrated on Jewish Hospital by Joe White and Mike O'Connell," Weiss said.

Weiss also claimed the proposed gag order is designed to spare the hospital from ridicule and bad publicity, not to prevent a jury from being tainted, which is why such orders are usually issued. * * *

"It is absurd on its face to believe that candid and honest answers ... could affect Jewish Hospital's right to a fair trial … in 2009 or 2010," Weiss said. * * *

Doug Morris, a veteran plaintiffs' lawyer who is secretary of the Kentucky Academy of Trial Attorneys and has no connection to the case, said he had never heard of a plaintiff requesting a gag order.

Plaintiffs usually want society "to find out what wrongful conduct has gone on," he said.

Gag orders typically are issued to protect the rights of criminal defendants to a fair trial.

In its motion, filed Thursday, the hospital said such an order is needed in part because of the media interest in the suit. The hospital also cited the "prominent role that the media played in the underlying litigation" and the number of press conferences White and O'Connell held while those cases were pending.

The two lawyers filed 96 lawsuits alleging unsanitary conditions caused infections that led to patient illnesses and deaths.

Of those lawsuits, 84 have been dismissed, most of them after the lawyers said they couldn't afford to continue. Two suits were dismissed by judges on their merits. * * *

In an interview last week, Polson and the hospital's lawyers said they were disappointed that White and O'Connell were trying to re-litigate the underlying cases, which they have already lost.

But the hospital has since been criticized by legal commentators for thinking it could sue the lawyers and not expect them to defend themselves by bringing up the claims they made in their original suits.

Former Carroll County Judge Stan Billingsley said in his Lawreader.com blog on Tuesday that the hospital's managers were "sadly mistaken" or "ill advised" if they expected that.

In an interview, Weiss said the public has a strong interest in following the hospital's suit because it could make it harder in the future to find lawyers willing to take on unpopular, expensive cases.

This is the commentary of former Carroll County Kentucky Judge Stan Billingsley referenced above. For a lot more, see this entry by Michael Stevens of the Kentucky Law Review.

[Updated 5/27/07] Here is another Stevens entry today.

Posted by Marcia Oddi on May 26, 2007 09:19 AM
Posted to General Law Related

Courts - "I was shocked it got overturned on such a technicality. That's something I would think a court in New York or California would do, but not Alabama."

Some quotes from this story today in The Decatur (Alabama) Daily, reported by Holly Hollman:

ATHENS — A woman serving life for capital murder in the alleged poisoning death of her husband may get a new trial.

The Alabama Court of Criminal Appeals unanimously overturned the 2003 conviction of Kathy Diane Birge, 53, of Madison in Limestone County.

The court said the prosecution failed to establish a sufficient chain of custody for samples extracted from the body of Cecil Birge, Kathy Birge's husband.

"I haven't read the opinion, but from what I've been told, it sounded like a trivial technicality," Sheriff Mike Blakely said Friday. "I was shocked it got overturned on such a technicality. That's something I would think a court in New York or California would do, but not Alabama."

The court ruled that the trial judge, former Circuit Court Judge George Craig, should not have let the prosecution enter the toxicology report as evidence. The court said Craig also should not have allowed Dr. John Pless, an Indiana pathologist, to testify about the toxicology report and give his opinion as to the cause of death. * * *

Kathy Birge tried to have her husband cremated, but Cecil Birge's daughter from another marriage filed an injunction and was able to bury her father in Indiana. That's where his daughter lives.

When Limestone authorities discovered Kathy Birge had forged her husband's will, they exhumed his body.

Pless performed the autopsy in Indiana and took samples to test for drugs. During the August 2003 trial, Pless testified that the amount of drugs in Cecil Birge's body equaled 25 to 30 pills.

Pless could not identify everyone who handled the toxicology samples after they were locked in a refrigerator. There also was an unsigned report from the lab where the samples were transferred.

The court ruled this showed several missing links in the chain of custody and overturned the conviction because the report was "the crux of the prosecution's case."

"We do not reverse a capital murder conviction lightly," the court's ruling stated.

The court also stated that, "Only the toxicology results established that Cecil died of a multiple-drug overdose, and that evidence allowed the jury to conclude that the (prosecution) presented sufficient proof that Birge had murdered her husband."

Here is more information about Dr. Pless. The newspaper includes a link to the text of the appeals court decision -- unfortunately it is to a damaged copy of the PDF document. I have sent them a note - perhaps it will be repaired and this link will work later.

Posted by Marcia Oddi on May 26, 2007 08:52 AM
Posted to Courts in general