Thursday, July 05, 2007

Ind. Courts - Franklin County Magistrate's first day

John Estridge of the Brookville American-Democrat reports today in a long story that begins:

Clay Kellerman did not have a chair.

Monday, July 2, was his first day as the Franklin County Magistrate, and it was also the first day the court system was set up in the North Courthouse Annex.

He solved the chair problem by finding the old witness chair from the Franklin Circuit Courtroom.

Indiana’s Legislature passed funding for the magistrate’s position in the Budget Bill beginning July 1.

When Kellerman and Franklin Circuit Court Judge J. Steven Cox presented the county’s case for a magistrate in the legislative process, it was discovered Franklin County had the greatest need for a second court of any county in the state.

While creating a Superior Court was an option, Cox and Kellerman decided magistrate was the correct way to go at that time.

A magistrate has all the powers of a regular judge except in civil cases. In civil cases, a magistrate reports Findings of Fact to the judge, with the judge signing the order.

By statute, Kellerman will receive 80 percent of a judge’s salary or $80,000 a year for his services. He cannot have a private practice while a magistrate. He will have one court reporter, Maggie Fledderman.

A magistrate is able to use all the equipment and personnel of the sitting judge while a Superior Court Judge must have his or her own equipment and personnel.

“The reason we asked for a magistrate is we did not have the physical facilities to house a second court or the funds available to staff it,” Cox said. “A magistrate is part of the circuit court and resources can be shared.”

Posted by Marcia Oddi on July 5, 2007 02:50 PM
Posted to Indiana Courts

Courts - Historic Courthouse in Seneca County Ohio may be torn down

Mitch Harper of Fort Wayne Observed writes today that "In Tiffin, Ohio, the County Commissioners there have voted 2 to 1 to tear down the 1884 Seneca County Courthouse."

Mitch's entry concludes: "Maybe Seneca County needs some older ladies to get together and start planning a calendar [as happened in Indiana with the Randolph County Courthouse]."

Posted by Marcia Oddi on July 5, 2007 01:24 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In John E. Kraft v. Wendy H. Kraft , a 15-page opinion, Judge Sharpnack writes:

John E. Kraft appeals the trial court’s denial of his petition for modification of child support. Kraft raises three issues, which we consolidate and restate as whether the trial court abused its discretion by denying Kraft’s petition for modification of his child support. * * *

Kraft has incurred a substantial decrease in his pay due to his loss of bonuses.2 Under such circumstances, we have found changed circumstances so substantial and continuing as to make the terms unreasonable. * * *

For the foregoing reasons, we reverse the trial court’s denial of Kraft’s petition to modify child support and remand for proceedings consistent with this opinion.

NFP civil opinions today (1):

In the Matter of J.C.; Alberto Casillas v. Marion County Office of Family & Children (NFP) - termination, affirmed.

NFP criminal opinions today (5):

Gregory A. Buckingham v. State of Indiana (NFP)

Douglas Henderson v. State of Indiana (NFP)

Charles E. Jackson v. State of Indiana (NFP)

Phillip D. Magness v. State of Indiana (NFP)

Hakim Kamau v. State of Indiana (NFP)

Posted by Marcia Oddi on July 5, 2007 01:12 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit chambers opinion appoints counsel to assist in filing cert petition

In U.S. v. Price (ND Ind., James T. Moody, Judge). a 5-page ruling on a motion for appointment of counsel dated 7/3/07, Judge Ripple (in chambers) writes:

Terraun Price has filed a motion for the appointment of counsel to assist him in filing a petition for certiorari in the Supreme Court of the United States, seeking further review of the judgment of this court. ... For the reasons set forth in this chambers opinion, the mandate of this court is recalled and new counsel is appointed to assist Mr. Price in filing a petition for certiorari in the Supreme Court of the United States. * * *

Although Mr. Price does not have a constitutional right to counsel while seeking certiorari, Ross v. Mofitt, 417 U.S. 600, 617 (1974), he does have a statutory right based on the Criminal Justice Act, 18 U.S.C. § 3006A. Wilkins v. United States, 441 U.S. 468, 469 (1979) (per curiam). See also United States v. Howell, 37 F.3d 1207, 1209 (7th Cir. 1994) (Ripple, J., in chambers). Indeed, the Seventh Circuit Criminal Justice Act Plan requires an appointed attorney to prepare and to file a petition for a writ of certiorari if, after consultation, the represented person requests it and there are reasonable grounds for counsel properly to do so. See Seventh Circuit Plan, V.3. If counsel concludes that reasonable grounds do not exist, counsel must promptly inform the defendant, and the defendant may request this court to order counsel to seek certiorari. * * *

Based on Mr. Price’s motion and counsel’s response, I must conclude that appellate counsel did not comply with his obligations under the Seventh Circuit Criminal Justice Act Plan. Counsel’s first letter, fairly read, advised Mr. Price that counsel was preparing to file a petition for certiorari: “We will begin the process and let you know the outcome as soon as possible.” Mr. Price was not informed that counsel had not filed a petition until he made his later inquiry. Mr. Price, therefore, was unable to ask this court to order counsel to seek certiorari. * * *

At this point, when there has been no meaningful consultation between counsel and the defendant, it would be premature for me to say whether a petition would be warranted. At the very least, Mr. Price has the right to consult with counsel about the appropriateness of filing a petition for a writ of certiorari. Accordingly, the mandate of this court is recalled. New counsel will be appointed. Counsel may file, within 14 days of appointment, a petition for rehearing in this court. Alternatively, counsel may elect to file immediately a petition for certiorari in the Supreme Court. If counsel, after consultation with Mr. Price, determines that it would be inappropriate to file a petition for certiorari, he must communicate that appraisal to Mr. Price so that he can ask, if he chooses, this court to determine whether it should order that such a petition be filed.

Posted by Marcia Oddi on July 5, 2007 12:59 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Upgraded security at Howard Count Courthouse

On Aug. 31, 2006, The Kokomo Perspective published a story that began:

Just one year shy of the 20th anniversary of the Howard County Courthouse bombing, security at the building might be enhanced.

Counties across the Hoosier state can apply for a grant to purchase security equipment, thanks to Division of State Court Administration and the Indiana Department of Homeland Security.

That's just one catch: The grant doesn't cover the cost of hiring an employee to operate the equipment.

"I understand that's problematic," Howard Circuit Court Judge Lynn Murray told the county councilmen.

"If you don't' have somebody manning it, it's not any good," commissioner Brad Bagwell said.

On Oct. 4, 2006, an AP story began:

The Howard County Courthouse is getting metal detectors nearly 20 years after a man smuggled a bomb inside and detonated it, killing himself and injuring 15 others.

The county will receive $29,295 grant from the Indiana Department of Homeland Security to buy an X-ray machine, tables and metal detector to increase security at the courthouse, Howard Circuit Court Judge Lynn Murray said Tuesday.

The equipment will be placed at public entrance at the east doorway of the downtown courthouse.

Today the Indianapolis Star has posted an AP story that begins:

Howard County employees will have to wear photo identification badges under new security rules passed two decades after a bomb exploded in the courthouse.

The badges are part of a system that also includes metal detectors and an X-ray machine, expected to be set up at the public entrance later this month.

County commissioners passed the new security rules Monday. The county decided last fall to use a $29,295 Indiana Department of Homeland Security grant to buy the equipment. Two security officers also are being trained, using money appropriated by the county council.

ID cards are also part of the plan. Workers will swipe their cards through a card reader at the employee entrance and won't have to go through the metal detectors.

"All employees should wear the badges at all times when working," Commissioner Dave Trine said.
Certain visitors also will be able to obtain a frequent visitor pass for $50 that allows them to bypass the metal detectors.

No weapons will be allowed inside the courthouse, except for police officers on duty. Off-duty officers must check their weapons at the security office.

Posted by Marcia Oddi on July 5, 2007 08:18 AM
Posted to Indiana Courts

Ind. Courts - How to explain this slip-up?

Here, on June 22nd, the ILB published the Governor's press release on the appointment of Judge Cale Bradford to the Court of Appeals.

Here, nearly two weeks later, the Indianapolis Star has posted the story/press release online, dated July 5, and oddly headlined "Judge misses appeals spot."

Posted by Marcia Oddi on July 5, 2007 07:12 AM
Posted to Indiana Courts

Ind. Law - "Felons and public office"?

An editorial today in the Evansville Courier & Press looks at the Indiana prohibition against felons on the ballot. Some quotes:

The question today in the matter of disqualified City Council candidate Fred Cook is this: When does a person satisfy his debt to society?

To Indiana state law, the answer is "never." The specific law prohibits anyone convicted of a felony from ever running for public office or from holding public office.

As a result, the Vanderburgh County Election Board ruled last week that because Cook was convicted of a felony for armed robbery more than 40 years ago, he cannot be on the ballot as an independent candidate for the 4th Ward City Council seat in this year's election. * * *

Cook is ineligible to serve officially as a representative of his district because of something he did more than 40 years ago when he was still a teenager.

It strikes us that the law should set some benchmark, a period of time and perhaps other qualifications — obviously, staying out of trouble — that allows citizens who long ago satisfied their sentences to return to active participation in the democratic process.

If punishment were our only purpose in dealing with lawmakers, then punishment forever might be appropriate for people such as Cook. But it is not. Another key component of our criminal justice system is the rehabilitation of those individuals not destined to spend their entire adult lives in prison. That's why successful rehabilitation, combined with a long period of time to regain trust and prove responsible behavior, would seem to be a reasonable measurement for returning people to active citizenship.

But don't take our word for it. Consider this quote from a former local public official:

"I don't think we want to be in a position of forever banning someone from office because of a teenage transgression. But that's what we have done."

Here is a list of some of the earlier ILB entries on convicted felons and public office.

Posted by Marcia Oddi on July 5, 2007 07:12 AM
Posted to Indiana Law

Wednesday, July 04, 2007

Law - "Justice Is Unequal for Parents Who Host Teen Drinking Parties"

On June 12th the Washington Post had a story reported by Daniela Deane that began:

A Virginia mother and stepfather began serving 27-month sentences yesterday for serving alcohol to minors at a 16th birthday party for their son nearly five years ago.

Their appeals exhausted, Elisa Kelly, 42, and George Robinson, 52, now divorced, reported separately to Albemarle Charlottesville Regional Jail. They pleaded guilty to nine misdemeanor counts of contributing to the delinquency of a minor stemming from the backyard party for their son Ryan Kenty, now 20.

Kelly and Robinson hosted the party at their Earlysville home, in the hills outside Charlottesville, in August 2002. Kenty had asked his mother to buy beer and wine for his friends, with the understanding that they would stay the night. Court records show that Kelly spent $340.

Kelly said she collected car keys to make sure that no one left the party. She reasoned that the youths were going to drink regardless, and she wanted to keep them off the road.

Police went to the home after receiving calls about underage drinking. About 30 young people, ages 12 to 18, were there when police arrived, scattering into the woods when someone yelled, "Cops!"

"Nobody got hurt. Nobody drove anywhere. How many times can I say I'm sorry, that I made a mistake?" Kelly said before reporting to jail. "This is just too harsh." * * *

Albemarle County Commonwealth's Attorney James L. Camblos III recommended 90-day sentences, but the judge sentenced them to eight years.

Today Ms. Deane has another story, a long one headlined "Justice Is Unequal for Parents Who Host Teen Drinking Parties." Some quotes:

When police showed up recently at a Walt Whitman High School graduation party, three young people were drinking in a vehicle parked outside the Bethesda home. Then three more teenagers walked up with a six-pack in a bag. While the police were dealing with them, the mother came outside, saw the officers and ran back in.

Montgomery County police wrote dozens of citations against the minors who were found to have been drinking at the party. The party-hosting parents were given two civil citations each, carrying fines of up to $1,500 per infraction.

The outcome for the Bethesda parents was considerably less severe than for a Charlottesville area mother and stepfather who recently began serving 27-month jail sentences for hosting an underage drinking party. * * *

The stark contrast in punishments is just one inconsistency in a patchwork of conflicting legal practices and public attitudes about underage drinking parties. Even at a time of strong concern about youth drinking and drunken driving, police and prosecutors say parents in the Washington region are rarely held responsible -- criminally or civilly -- for allowing teenagers to gather at their homes and consume alcohol. That's in large part because it's difficult to prove that the adults provided alcohol or condoned its use.

The issue is becoming more urgent, police say, as more parents, fearing their teenagers will drink anyway, allow alcohol at home to keep the youths off the roads and out of trouble. In both the Bethesda and Charlottesville area cases, the parents had collected teens' car keys to ensure that nobody drove after drinking. The Virginia mother acknowledged buying the alcohol for the party.

"They were fully aware of the party and knew what was going on," Sgt. Tim Kwaloff, head of the Montgomery police Alcohol Enforcement Unit, said of the Bethesda parents. "More and more parents think they'd rather have their kids drinking at home than not know where they are."

Stacy Saetta of the Center for the Study of Law and Enforcement Policy, a California-based research center studying alcohol policy, said the parties are getting larger and can involve "hundreds of kids in this new Internet era of text-messaging, MySpacing and instant communication."

"Some of these parents are hosting these parties out of the goodness of their hearts," Saetta said. "They think they're doing the best thing [by] keeping them at home. But there's just too many dangers present when you get a bunch of young people together with money, with alcohol and with cars."

Posted by Marcia Oddi on July 4, 2007 09:00 AM
Posted to General Law Related

Ind. Law - More on hospital competition

"Competing hospitals will be good for Porter County" is the headline to an editorial today in the NWI Times. It begins:

Memorial Health System's decision to build a hospital in Valparaiso is one of a series of seismic shifts this year in health care in Porter County.

This new hospital will compete with a new hospital to be built by the new owner of Porter Hospital.

This competition is ultimately good news for patients.

South Bend-based Memorial is planning to break ground next year on a 100-bed hospital, expandable to 250 beds, on the east side of Valparaiso. The site is near where Porter planned to build.

In fact, Porter officials had met with retired radiologist Surjit Patheja, the owner of the land Memorial is buying. Porter officials haven't announced a final decision on where to build.

The new 225,000-square-foot hospital should be in operation in 2010. It will be a general hospital, offering an emergency room, surgical services, obstetrics and critical care, said Memorial President and CEO Phil Newbold.

That's a switch from the recent practice of specialty hospitals coming to a community and taking a profitable segment of the health care market from the general hospitals obligated to serve everyone. * * *

It is also a prod to Porter Hospital officials to move quickly to build their new hospital so they can compete on an even footing with Memorial.

Porter Hospital's owner, Community Health Systems, is obligated under the terms of the purchase of the county-owned hospital to replace the 68-year-old hospital within four years.

Once both hospitals are built, competition should shape health care prices and amenities. That should be good news for patients.

Read this in conjunction with the ILB entry from earlier this week (July 1st), headed "State encouraging hospital competition."

Posted by Marcia Oddi on July 4, 2007 08:36 AM
Posted to Indiana Law

Environment - Hassan Barrel Company president indicted over toxic waste storage

The ILB has had several earlier entries about the Hassan Barrel Company of Fort Wayne. The first one, from Oct. 17, 2004, quoted a story in the Fort Wayne Journal Gazette that began:

A NIPSCO worker trying to remove a gas meter for non-payment discovered a mountain of rusting industrial barrels filling the site of a defunct recycling firm.

Formed in 1959, Hassan Barrel Co. cleaned out used barrels so they could be reused. But the company apparently closed abruptly last summer, leaving workers locked out and the site covered with an estimated 10,000 barrels, with as many as 1,000 of them with industrial waste still inside.

Today an AP story, headlined "Company president indicted over toxic waste storage," begins:

FORT WAYNE, Ind. - The former president of a barrel recycling plant where toxic waste was left behind when the company closed four years ago has been indicted on a federal charge.

Alan D. Hersh was arrested Monday in North Carolina following his indictment on one count of violating federal law by storing and disposing of hazardous waste without a permit, according to court documents.

The indictment also names Hassan Barrel Co., which opened in 1959 and recycled industrial barrels on its 7-acre site a few blocks from Adams Elementary School until it closed in the summer of 2003.

Posted by Marcia Oddi on July 4, 2007 08:26 AM
Posted to Environment

Ind. Courts - "Judge gives reprieves to hardship tax delinquents"

Bill Doan of the NWI Times reports:

CROWN POINT | The weak and the strong lined up this week to get a break from the Lake County tax man.

Lake Circuit Court Magistrate Richard F. McDevitt heard dozens of petitions from tax-delinquent owners hoping to remove their beleaguered properties from Monday's tax sale.

Among those who were granted a year's grace from having their property sold out from under them included the Halls of St. George, a Serbian Orthodox church-based banquet hall in Schererville, and Brother's Keeper, a Gary homeless shelter.

Each religious group has a dispute with the county regarding their tax exempt status.

Halls of St. George is appealing a $906,000 bill. James Wieser, an attorney for the county auditor's office, argued in vain that Brother's Keeper should be denied because it already has lost all other appeals to the county and state.

Others at Tuesday's pleadings, such as Bessie Jones, of Gary, benefited from the court's mercy. She is elderly and disabled, and the county was threatening to sell her home to the highest bidder Monday.

She made her way to the Lake Circuit Court podium and pleaded with the magistrate, "I've done everything I could."

The courtroom was filled to capacity with others stricken by illness, family deaths, financial misfortune and the same entreaty for more time to get right with the tax man. Thousands of tax-delinquent owners face losing properties in next week's tax sale.

McDevitt heard their cases one by one Monday and Tuesday and issued on-the-spot rulings.

William Scoggins, of Gary, said, "I have a hardship like everyone else here. Work has been slow. I've lived in this house since 1957. It's the first time I've had trouble like this."

The magistrate granted relief to both Jones and Scoggins.

Posted by Marcia Oddi on July 4, 2007 08:21 AM
Posted to Indiana Courts

Ind. Courts - More on "He was trying to put her over that railing"

Updating the report in a June 23rd ILB entry, Joe Gerrety of the Lafayette Journal & Courier reports today, in a story that begins:

A rural Lafayette man accused of attacking a lawyer at the Tippecanoe County Courthouse after a civil court case last month has been charged with attempted murder, attempted aggravated battery and confinement.

Prosecutors on Tuesday filed the charges in Tippecanoe Superior Court 1 against Russell A. Timmons, 48. The June 22 attack occurred outside Tippecanoe Superior Court 2.

The most serious charge, attempted murder, is a Class A felony punishable by 20 to 50 years in prison.

According to witness accounts and a security surveillance video of the attack, police suspect Timmons was trying to push Fort Wayne attorney Linda Polley over the fourth-floor railing of the courthouse rotunda, which is open to the second floor.

Polley fell to the floor away from the railing, and witnesses said it appeared Timmons tried to pick her up and pull her back to the railing. All the while, another attorney in the case, Theodore Hammond of Indianapolis, was attempting to pull Timmons -- 5-foot-11 and 270 pounds -- off Polley.

Seconds later, Timmons was confronted by courthouse security bailiff Shawn Sherry. Sherry came out of the Superior Court 2 courtroom, where a criminal trial was under way, and pointed pepper spray at Timmons. He complied with her orders and was taken into custody.

Posted by Marcia Oddi on July 4, 2007 08:10 AM
Posted to Indiana Courts

Ind. Gov't. - "Ex-state employee collects '05 travel pay"

Niki Kelly of the Fort Wayne Journal Gazette reported, in a May 2, 2006 story headlined "State FSSA exec goes from public to private at twice the price,":

INDIANAPOLIS – On his last day as a state employee, a top Fort Wayne executive at the Family and Social Services Administration signed an outside contract to perform the same job at a much higher rate of pay – $180,000 a year.

Richard E. Rhoad’s compensation is nearly double the governor’s salary, and is $70,000 more than Mitch Roob receives as the head of the agency.

But Roob and State Budget Director Chuck Schalliol defended Rhoad’s unique contract, saying it is sometimes worth extra money to get the right person to do the job and have geographic diversity in staff members. * * *

Roob admits, he offered Rhoad the position of chief financial officer and promised the state would pay for his Indianapolis housing during the week and travel expenses for trips back and forth to Fort Wayne where his family remained.

Kelly had a number of additional stories following the Rhoad state employee/contractor situation - here is a list of those the ILB noted.

Today Kelly reports again on this story, under the headline "Ex-state employee collects '05 travel pay." Some quotes:

The outgoing state budget director and current Department of Administration commissioner recently approved an exception for $13,700 in reimbursements for travel made by a former state employee from Fort Wayne nearly two years ago.

The disclosure came in a June 29 inspector general’s report involving Richard Rhoad, a Fort Wayne businessman who previously was chief financial officer for the state’s Family and Social Services Administration.

The joint investigation conducted by the inspector general and the State Board of Accounts focused on mileage, lodging, and breakfast and dinner per diem vouchers submitted by Rhoad between Jan. 9, 2005, and June 17, 2005.

Rhoad, who lived in Allen County at the time, was reimbursed at the direction of FSSA Secretary Mitch Roob, but the reimbursements were not in compliance with the state’s travel regulations, the report said. Efforts to reach Rhoad for comment were not successful Tuesday.

Essentially, Rhoad would drive to Indianapolis from Fort Wayne on Sunday evening or Monday morning, stay at hotels in Indianapolis during the week and drive back to Fort Wayne on Friday night.

He was reimbursed despite the fact that his work station was his Indianapolis office. According to state guidelines, employees are not allowed to claim mileage from home to work, and overnight lodging and per diem are also not allowed.

State rules provide for an exception to be approved by the state budget director and commissioner of the Department of Administration. Roob sought that exception in January 2005, but it was denied.

In March 2005, Roob wrote a memo to the FSSA travel office authorizing the continuation of travel payments to Rhoad, the report said.

In July 2005, the Department of Administration notified the state auditor to cease further travel reimbursements to Rhoad because an exception had not been granted.

The inspector general concurred with the State Board of Accounts that Rhoad was not entitled to travel reimbursement and joined in a request for reimbursement that was given to FSSA on May 2 to allow it a response before the report was released to the public.

Instead, Roob submitted an additional request for an exception on May 29 to outgoing State Budget Director Charles Schalliol and Department of Administration Commissioner Carrie Henderson.

The exception was subsequently approved by both, and the investigation was closed, according to Inspector General David Thomas.

Posted by Marcia Oddi on July 4, 2007 07:53 AM
Posted to Indiana Government

Tuesday, July 03, 2007

Ind. Decisions - How long has it been since the 7th Circuit heard oral arguments in the legislative prayer case?

The 7th Circuit heard oral arguments in the case of Hindrichs v. Bosma on September 7th, 2006. See the ILB entry here.

Here is a direct link to the oral argument in the case, if you'd like to listen to it. Or go here for a page providing links to both the earlier 7th Circuit ruling (on the motion to stay) and the MP3 of the oral argument. Here is the page with all the briefs.

Posted by Marcia Oddi on July 3, 2007 01:42 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit rules on disputed bankruptcy question

In a case out of Illinois, In the Matter of Craig Wright, Chief Judge Easterbrook's opinion begins:

Bankruptcy judges across the nation have divided over the effect of the unnumbered hanging paragraph that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 added to §1325(a) of the Bankruptcy Code, 11 U.S.C. §1325(a). Section 1325, part of Chapter 13, specifies the circumstances under which a consumer’s plan of repayment can be confirmed. The hanging paragraph says that, for the purpose of a Chapter 13 plan, §506 of the Code, 11 U.S.C. §506, does not apply to certain secured loans.

Posted by Marcia Oddi on July 3, 2007 12:40 PM
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (3):

In Chester E. Bowman v. Tippmann Enterprises, et al. , a 6-page opinion, Judge Darden writes:

ISSUE: Whether Wells Fargo Bank owed a duty to Bowman to clear ice and snow from the sidewalk adjacent to its property.

FACTS: At approximately 12:00 p.m. on February 6, 2004, Bowman was walking on a sidewalk in downtown Fort Wayne, when he slipped on snow and ice that had accumulated where the sidewalk intersected with the entrance into the drive-through lanes of a branch of Wells Fargo Bank. Bowman fell, fracturing his left femur.

On February 6, 2006, Bowman filed a complaint against Wells Fargo Bank and other defendants, namely, the owners of the buildings and structures adjacent to the sidewalk and driveway area where Bowman had fallen. On August 1, 2006, Wells Fargo Bank filed a motion for summary judgment and memorandum in support thereof. Wells Fargo Bank argued that it did not owe Bowman a duty to maintain the sidewalk because, as a tenant and pursuant to the terms of its lease, Wells Fargo Bank did not “exert possession or control over the sidewalk . . . ” and was not responsible for maintaining the sidewalks. Wells Fargo Bank also argued that it was its landlord’s duty to maintain the sidewalk as the sidewalk was a common area, used by the public.

Bowman filed a response on August 28, 2006. Citing to a Fort Wayne City Ordinance (the “Ordinance”), Bowman argued that Wells Fargo Bank, as an occupant, had a duty to clear the sidewalk of snow and ice. * * *

We recently addressed similar claims in Denison Parking, Inc. v. Davis, 861 N.E.2d 1276 (Ind. Ct. App. 2007), trans. denied. In Denison, the plaintiff, Barbara Davis, slipped on ice while walking on the sidewalk in front of Market Square Arena. Denison Parking was responsible for snow removal from the sidewalks at Market Square Arena. Davis filed a complaint against Denison Parking, and Denison Parking filed a motion for summary judgment, which the trial court denied.

On appeal, Denison Parking argued “that it did not owe the Davis[] a common law duty to clear the public sidewalks of ice and snow, [and] that it did not owe a duty to Davis based upon statute or municipal ordinance . . . .” Davis “counter[ed] that Denison Parking’s duty to maintain the sidewalks surrounding its commercial parking facility in a reasonably safe condition for pedestrian travel arises out of (1) Indiana common law, [and] (2) Indianapolis Municipal Code Section 931-102.”

This court held that “Denison Parking owed no common law or statutory duty of care to Davis.” ... Notably, we found no common-law duty under the balancing test set forth in Webb. Id.
Furthermore, we reaffirmed that city “ordinances such as Indianapolis Municipal Code Section 931-102 . . . are not enacted for the protection of individuals using the streets but rather are for the benefit of the municipality.” ...

Given the undisputed facts, we conclude that Wells Fargo Bank did not owe a duty of care to Bowman. Thus, Bowman cannot establish a claim of negligence against Wells Fargo Bank. We therefore find no error in granting summary judgment in favor of Wells Fargo Bank. Affirmed.

James E. Manley v. State of Indiana - "Manley submitted his request for modification long after the statutory 365-day period had lapsed. He does not direct us to anything in the appellate materials reflecting that the prosecutor approved his petition for modification, nor does our research reveal such acquiescence. Lacking that prerequisite for sentence modification pursuant to I.C. § 35-38-1-17(b), the trial court had no authority to grant Manley’s request. State v. Fulkrod, 753 N.E.2d 630. Therefore, the trial court did not err in denying Manley’s petition."

Reed Hodges and Angelia Hodges v. Timothy Swafford - "Reed Hodges and Angelia Hodges, a/k/a Angela Hodges (collectively, “the Hodgeses”) petition this Court for rehearing on our recently-published opinion, Hodges v. Swafford, 863 N.E.2d 881 (Ind. Ct. App. 2007). In that case, the Hodgeses appealed the trial court’s order finding them liable under the Truth in Lending Act (“TILA”) and awarding damages to Timothy Swafford in the amount of $21,150.00. More specifically, we affirmed the trial court’s determination that TILA applied to the transaction in this case because the Hodgeses were “creditors” and because the loan they made to Swafford was a “high cost loan.” See 15 U.S.C. §§ 1602(f), -(aa)(1)(B). As for damages, we reversed the trial court’s award and remanded with instructions to calculate damages pursuant to TILA’s damages provisions. We now grant the Hodgeses’ petition for rehearing for the limited purpose of correcting our damages calculation."

NFP civil opinions today (3):

Paternity of E.S.W., Steven L. Robbins v. Rebecca J. Shadwick f/n/a Rebecca J. Whited (NFP) - termination, affirmed.

Paternity of D.T.B., a child born out of wedlock; Andre D. Barr v. Paula J. Frison (NFP) - "Moreover, even if we were to find Barr was not properly served, the evidence unequivocally establishes that he soon became aware of the paternity judgment and then waited over six years to challenge it. All the while, Barr acted as a father toward D.T.B. and sat idly by while weekly child support payments were being withheld from his paycheck. For over six years, Barr manifested an intention to treat the paternity order as valid, and his prior actions are inconsistent with his current position that the judgment is invalid. Therefore, Barr is estopped from asserting lack of personal jurisdiction as he voluntarily submitted to the court’s jurisdiction."

Termination of the Parent-Child Relationship of C.B., Jr.; Tyna Sims and Carl Black, Sr. v. Marion County Department of Child Services and Child Advocates (NFP) - "Mother and Father did not complete the necessary medical education to care for their son. Mother attended only five of sixteen clinic appointments with C.B. from February 2005 through June 2006. Father did not attend any of the appointments. In addition, neither parent has stable housing or employment, or reliable transportation to take C.B. to blood draws and follow-up medical appointments. Both parents were incarcerated at the time of the termination hearing.

"Recognizing our deferential standard of review, we find that this evidence supports the trial court’s finding that there is a reasonable probability that the continuation of the parent-child relationship poses a threat to C.B.’s well-being.

"We reverse a termination of parental rights “only upon a showing of ‘clear error’ – that which leaves us with a definite and firm conviction that a mistake has been made.” Egly v. Blackford County DPW, 592 N.E.2d 1232, 1235 (Ind. 1992). We find no such error here, and therefore affirm the trial court. Affirmed."

NFP criminal opinions today (3):

Robert Rodes v. State of Indiana (NFP)

Brandon Spinks v. State of Indiana (NFP)

Kimberly C. Hitchcock and Jeffrey P. Canen v. State of Indiana (NFP)

Posted by Marcia Oddi on July 3, 2007 12:13 PM
Posted to Ind. App.Ct. Decisions

Courts - "D.C. Circuit Panel Reverses Itself on Tax Constitutionality Question" [Updated]

The blog Decision of the Day has just posted an entry on a ruling today from the DC Circuit reversing "its own bombshell holding that a portion of the Internal Revenue Code is unconstitutional." Earlier, in August of 2006, in the case of Murphy v. Internal Revenue Service the Court had ruled that § 104(a)(2) of the Code, "that requires taxes to be paid on many jury awards and settlements" was unconstitutionally broad.

[Updated 7/4/07] "Nonphysical Injury Awards May Be Taxed, Court Rules" is the headline to this story today in the NYTimes, via Bloomberg News. Quotes:

Reversing its own 11-month-old decision, a federal appeals court ruled Tuesday that the United States could tax damage awards for emotional distress and injury to reputation.

A three-judge panel of the court, the United States Court of Appeals for the District of Columbia Circuit, said taxing awards for nonphysical compensatory damages did not violate the Constitution. A 1996 federal law exempts from taxes compensation for physical injuries.

Posted by Marcia Oddi on July 3, 2007 11:45 AM
Posted to Courts in general

Ind. Courts - The Indiana Judges Association is accepting nominations for its annual “Excellence in Public Information and Education" awards

This release was just issued by David Remondini on behalf of the Indiana Judges Association:

The Indiana Judges Association is accepting nominations for its annual awards for “Excellence in Public Information and Education,” Lake Circuit Court Judge Lorenzo Arredondo announced today.

Judge Arredondo, who chairs the Community Relations Committee of the Judicial Conference of Indiana, said the Committee selects the recipients on behalf of the Indiana Judges Association.

The IJA gives two “Excellence in Public Information and Education” awards each year. One award is presented to a member of the Indiana judiciary for special efforts in community relations. In addition, an award is presented to a member of the news media for efforts in responsible reporting on the Indiana judiciary.

Nominations for either award should include a letter outlining the reasons for making the nomination and any supporting information that will assist the committee in its decision-making. The selection will be based on the breadth and depth of the effort, quality of the effort, ingenuity and public response

Nominations must be received at the Indiana Judicial Center by 4:30 p.m. on Monday, August 13, 2007. The awards will be presented at the Indiana Judges Association luncheon on September 20, 2007 in Fort Wayne.

For further information or a copy of the nomination forms, please contact Jennifer Bauer at 317-232-1313. Nomination forms are also available online at www.in.gov/judiciary/center.

However, the nomination forms do not appear to be available yet at that link - the ILB will let you know when.

[Update: The nomination forms are now available, both the judge's nomination form, and the form for media, via the upper right-hand corner of this page.]

This link will lead you to an ILB entry on last year's winners. The ILB was one of the two recipients of the awards in 2006, and would be thrilled to be nominated again this year for its efforts over the past 12 months.

Posted by Marcia Oddi on July 3, 2007 10:53 AM
Posted to Indiana Courts

Ind. Courts - "Rios' peers in Clark County? Allen County Judge to visit southern county to talk about juror selection"

Jeff Wiehe of the Fort Wayne News-Sentinel has two interesting stories today about jury selection for the upcoming Allen County murder trial which is to be held in Allen County, but is to be heard by jurors from Clark County. He writes in the first:

Tuesday, Allen Superior Judge Fran Gull, who announced last month the jury would come from Clark County, is scheduled to make a trip there to talk with law and court officials about the facilities to be used and the logistics of the jury selection. * * *

Although the October-long trial will be in Allen County, Clark County – on the Indiana-Kentucky border just across the Ohio River from Louisville – was chosen as a place to select jurors because it was outside the scope of intense media coverage surrounding the case, as well as a Delaware County case in which Rios already admitted to the rape and murder of a 10-year-old Fort Wayne girl, Alejandra Gutierrez.

The first week of the trial will be devoted to jury selection. Allen County Prosecutor Karen Richards could not be reached for comment as of deadline today. She previously has declined to comment on the ongoing case.

Kraus said she had not studied the demographics of Clark County yet, but said she had heard there was a fairly large and active Hispanic community there. For a defense attorney representing someone such as Rios, having a Hispanic presence on the jury might seem like a valuable thing on the surface.

“I don’t have an opinion whether I’ll want one Hispanic or 20 Hispanics (in the jury pool) so that it complies with the constitution,” Kraus said. “It’d be helpful if there were some.”

But according to the U.S. Census Bureau, out of Clark County’s estimated 100,000 people in 2005, only 2.6 percent are Hispanic or Latino – a number that Jim Keith, executive director of the Clark-Floyd Counties Visitor Bureau, said sounded about right.

Wiehe has a second story, headed "Lawyers think about Rios' jury: Prosecutor, defense attorneys to strategize before juror selection." It begins:

Though it's probable there will be more motions filed and hearings held before Simon Rios' death penalty trial begins Oct. 1, preparations for jury selection will somewhat begin with Allen Superior Judge Fran Gull's scheduled visit to Clark County on Tuesday.

Clark County was picked as a place to select the jury members because the area is outside the scope of intense media coverage surrounding two high-profile cases where children have been killed and Rios was named the suspect.

The lawyers will have to strategize and decide what kind of person they want on the jury, which will be picked during the first week of the trial.

Posted by Marcia Oddi on July 3, 2007 08:44 AM
Posted to Indiana Courts

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

Updating this ILB entry from June 5th, which quoted this report from Patrick Guinane of the NWI Times:

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.

Dan Hinkel of the Times reports today:

An East Chicago state senator who announced last month he would resign has decided to stay in the Senate and run for re-election in 2008. * * *

Smith's 2008 bid could face a challenge. Smith pleaded guilty to tax evasion for failing to pay sales tax at his East Chicago funeral home in 2004. 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.

Regarding the potential for a legal challenge to his candidacy, Smith said only: "Whatever happens."

Smith heard from lobbyists and others that he shouldn't give up the seat, Smith said.

"My head got kind of swollen a little bit," he said. * * *

Smith said he had not officially resigned pursuant to state law and no action will be needed for him to retain the position.

John Byrne of the Gary Post-Tribune has this story. Some quotes:

EAST CHICAGO -- On second thought, Sam Smith's gonna stay put.

The state senator has retracted his plan to resign.

Quite a turnabout less than a month after Smith announced he would step down to concentrate on running his funeral home and support his wife, Diane, to complete his term.

Several candidates with strong political backing came forward in early June to challenge for the soon-to-be-empty seat, making it far from certain Diane Smith would secure the necessary precinct votes to succeed her husband.

But Smith insisted his wife's likely difficulty winning the caucus had nothing to do with his decision to return to Indianapolis.

He said he will finish his term, and likely run again when the 2nd District seat is on the ballot next, in 2008.

"Why not?" Smith asked.

Well, there is the problem of Smith's criminal record.

Though he was finally sentenced in 2004 on misdemeanor charges of failure to remit sales tax in connection with his funeral home, Smith first pleaded guilty to a felony.

That seems to put him at odds with a 2005 state law governing who is eligible to run for office. Convicted felons cannot be on the ballot.

But Smith said he will deal with that problem when it arises.

Posted by Marcia Oddi on July 3, 2007 08:36 AM
Posted to Indiana Government

Ind. Law - New law changes Loan Broker Act, adds Franchise Act and the Collection Agency Act

A brief story today in the Indianapolis Star reports on HEA 1717, which concerns the regulation of loan brokers, franchises, and collection agencies.

Posted by Marcia Oddi on July 3, 2007 08:31 AM
Posted to Indiana Law

Environment - "Lawsuits are becoming a more popular strategy to stop or slow down large livestock farms"

Seth Slabaugh of the Muncie Star-Press writes today:

HARTFORD CITY -- Citizens from 14 counties spoke at a recent statewide strategic planning meeting on how to restrict concentrated animal feeding operations (CAFOs).

Litigation is becoming an increasingly common strategy throughout the state for citizens to fight dairy, pork, calf and chicken CAFOs, which are the source of air and water pollution complaints.

"We chose the court route because it's been the most successful for us," Jae Breitweiser of Jefferson County said during the conference this past weekend at the Lake Placid Conference Center.

Citizens from Benton, Blackford, Carroll, Delaware, Fayette, Henry, Huntington, Jasper, Jefferson, Lagrange, Randolph, Tipton, Wabash and Wayne counties spoke during the morning portion of the conference.

Members of the media were not allowed to attend after lunch when the group, which plans to launch a Web site, broke into committee meetings to talk about the media, a mission statement, state legislation, zoning and water quality/testing.

Breitweiser called the Indiana Department of Environmental Management "crooked and awful," adding, "They lie to you. Fight them with everything you've got."

Bonnie Hahn disagreed. Citizens in Huntington County have become CAFO watchdogs who developed a good relationship with an IDEM inspector, helping result in IDEM's revocation of a dairy CAFO's permit, she said.

Phil Bir of Lagrange County claimed state officials "don't care about you and I who live there" next to CAFOs. "That infuriates me," he said.

Citizens in Lagrange County have sued IDEM in state court and anticipate asking a federal court to decertify the agency as an enforcer of the federal Clean Water Act, putting the U.S. Environmental Protection Agency in charge of enforcement.

"It will be a tremendous blow to IDEM if we succeed," said Bir, whose group goes by the name Hoosiers for Sustainable Agriculture.

Carl Colbert of Tipton County said citizens needed to unite to raise funds to battle CAFOs in court.

Randolph County citizen Rachel Carpenter said that fighting CAFOs is "becoming way too expensive" for citizens.

Eric Stickdorn from Wayne County said he'd been forced to move out of his home because of air pollution from a small dairy farm's lagoon. "We tried to follow the Biblical pattern," he said. "We went before the church. We went to IDEM." The dairy declined mediation, he said, so he's suing.

Michael Platt, executive director of the Indiana Pork Producers Association, said Monday in an interview that groups like GRACE Factory Farm Project and the Humane Society of the United States publish guides on "How to Confront a CAFO" that recommend lawsuits as one strategy to slow down or stop CAFOs.

New York-based GRACE Factory Farm Project sent two keynote speakers to the conference.

"So it doesn't surprise me to see lawsuits in Indiana as well as around the country," Platt said. "Pork producers know there is an environment out there that encourages local citizens to file lawsuits. That certainly has slowed some of their progress and has become an extra cost of doing business. It's a tactic being used against them."

Posted by Marcia Oddi on July 3, 2007 08:25 AM
Posted to Environment

Law - HIPAA frustration: unnecessary secrecy is a “significant problem”

Jane Gross has an important story today on the front page of the NY Times, headlined "Keeping Patients’ Details Private, Even From Kin." She writes of "the way Hipaa is misunderstood by medical professionals, as well as the frustration — and even peril — that comes in its wake." More quotes:

Hipaa was designed to allow Americans to take their health insurance coverage with them when they changed jobs, with provisions to keep medical information confidential. But new studies have found that some health care providers apply Hipaa regulations overzealously, leaving family members, caretakers, public health and law enforcement authorities stymied in their efforts to get information.

Experts say many providers do not understand the law, have not trained their staff members to apply it judiciously, or are fearful of the threat of fines and jail terms — although no penalty has been levied in four years.

Some reports blame the language of the law itself, which says health care providers may share information with others unless the patient objects, but does not require them to do so. Thus, disclosures are voluntary and health care providers are left with broad discretion.

The unnecessary secrecy is a “significant problem,” said Mark Rothstein, chairman of a privacy subcommittee that advises the Department of Health and Human Services, which administers Hipaa. “It’s drummed into them that there are rules they have to follow without any perspective,” he said about health care providers. “So, surprise, surprise, they approach it in a defensive, somewhat arbitrary and unreasonable way.”

Susan McAndrew, deputy director of health information privacy at the Department of Health and Human Services, said that problems were less frequent than they once had been but that health care providers continued to hide behind the law. “Either innocently or purposefully, entities often use this as an excuse,” she said. “They say ‘Hipaa made me do it’ when, in fact, they chose for other reasons not to make the permitted disclosures.”

This is a long story, with much more information.

Posted by Marcia Oddi on July 3, 2007 08:14 AM
Posted to General Law Related

Monday, July 02, 2007

Ind. Law - "Woman didn't know rental house was murder scene" [Updated]

Dione Waugh of the Fort Wayne Journal Gazette has a story today about the new tenants of a house that had been the scene of multiple murders. Some quotes:

Earneshia Mitchell first thought the long, one-story house with blue siding on South Calhoun Street was cute and cozy.

For $550 a month in rent, the three-bedroom, 2 1/2 -bathroom home was a good deal for her and her two sons.

In March, she moved in.

Two months later, she learned Simon Rios was the previous owner and lived there until he was arrested on charges he killed his wife and three young daughters inside. * * *

Mitchell feels foolish for moving into the house without knowing its history. She never would have moved in if she had.

“I needed somewhere to stay,” she said. “My kids needed a place to lay their heads.”

State law does not require an agent to tell a prospective homebuyer or renter if a death occurred in the house unless the agent is specifically asked. Mitchell said her parents thought the house was the site of one of the city’s most gruesome homicides in recent years, but when she asked her landlord whether anything had happened in the house, she said he said no. * * *

Since Mitchell discovered her home’s history, she’s noticed several people driving by who slow down and look at her house.

“They ride by real slow and they’re thinking, ‘I can’t believe somebody lives in that house,’ ” she said. “I feel stupid. I made a mistake, but I needed somewhere to live.”

Though she never would have moved into the house if she had known it was Rios’, Mitchell said she’s not sure she’ll move out when her six-month lease is up in August.

She doesn’t stay in the house alone, she said, and is grateful that her family often drops by because it keeps her from thinking about the killings.

“I look at all the dents in the walls and the doors and I wonder if that was her trying to get out and save her kids’ lives or something,” Mitchell said.

She paused as she turned her head and looked around the home. “It’s a nice house, though.”

Funny, the ILB thought Indiana did have a law re stigmatized property, but if it exists, the ILB hasn't found it.

Here is a great article from the Aug. 7, 2006 WSJ headlined "Scenes of a Crime: Do Homes Associated With Scandal Sell?" Some quotes:

Real-estate professionals call homes tainted by murder, sex scandals or messy divorce "stigmatized properties." While they make up a sliver of the market, they have been the subject of academic research, provided fodder for lawsuits and posed a challenge for brokers. State real-estate agent and appraisal groups regularly include the subject in seminars, and the National Association of Realtors publishes a "Field Guide to Dealing with Stigmatized Property," offering insights on everything from how to market and sell stigmatized homes to dealing with buyer reluctance to own them. One scandal-dampening suggestion from the guide's "tool kit": Enhance the home's facade by painting it or replanting shrubs and flowers.

There are different degrees of stigma, of course. Appraisers and brokers say murder -- in particular, multiple homicides and cult killings -- is by far the toughest kind of notoriety to minimize. Suicides and hauntings come next, followed by illicit sex and celebrity infidelities. When bold-face names aren't involved, hanky-panky appears to have little impact. "If real-estate values were hurt for every house where the owners were unfaithful, we'd have a fire sale out here," says Steven Gaines of East Hampton, N.Y., author of 1999's "Philistines at the Hedgerow: Passion and Property in the Hamptons." * * *

Highly stigmatizing events can cut as much as 15% to 25% from the price a home would otherwise fetch, according to appraisers who specialize in such homes. The largest markdowns, they say, are associated with explosive scandals that receive broad media attention. After two or three years, the stigma begins to diminish. "Time passes, people forget," says Frank Harrison, an appraiser in Woodstock, Ill., who has researched and appraised dozens of affected properties.

From USAToday, dated Aug. 7, 2006, a story with a chart listing locations with notorious crimes and their status today. A quote:

Buyers have plenty of reasons to shun such properties, says Park Dietz, a forensic psychiatrist who testified in the trials of serial killers Jeffrey Dahmer and Joel Rifkin. "People are superstitious. They're afraid of bad luck or ghosts, or that the house is cursed," says Dietz, who has visited dozens of crime scenes and investigated hundreds more through videos and photos. "Or they have a more rational concern that the tragedies will be more salient to them. It may be on their consciousness and decrease their joy in living."

Randall Bell, author of an upcoming book on real estate called Bottom Line Results, has a name for what Dietz describes. Bell calls it "crime scene stigma," which he defines as "the reluctance on the part of the real estate market to pay full price for a property associated with a horrific crime."

A story dated June 9, 2007 in the Toronto Star is headlined "Should vendor disclose a property's past?" Some quotes:

Does Ontario need a law requiring real estate agents or sellers to disclose whether a home being sold has a history of violence?

The question arises in the wake of the publicity surrounding the sale of a house in rural Lake County, Fla., last month. On May 5, when John and Kathy Johnson and their 24-year old daughter Christina began to move into the $227,000 house they had just bought, they were shocked to learn from a neighbour that the Greenbrier St. residence was the scene of a grisly triple murder and suicide.

Back in February 2006, local police officer Michael Mount shot his estranged wife Kim, fellow officer Joe Gomez and Gomez's wife Serena in a jealous rage, before turning the gun on himself.

Six-year old Justin Gomez inherited the house. His maternal grandmother, Debra James, represented the estates of her daughter and son-in-law. She listed the house with Larry Beard, owner of Beard Pippin Properties Inc.

James specifically instructed Beard not to reveal details of the murders and suicide to potential buyers. A Florida state law allows real estate companies to withhold details about a house if they would tend to stigmatize the property. [emphasis added by ILB]

That law says that the fact that a property was the site of a homicide, suicide or death is not a material fact that must be disclosed in a real estate transaction. * * *

Events such as homicides, suicides and deaths, or even the allegation that a house is haunted have been known to affect the value of a property.

The National Association of Realtors in the U.S. requires its members to reveal all material factors that might affect the desirability of a house, but psychological factors are a grey area.

In a study published in 2000, James Larsen, a professor at Wright State University in Ohio, surveyed more than 100 stigmatized houses, including those associated with murders, sex scandals, suicides and hauntings.

Ohio does not have a law requiring disclosure of real estate stigmas, and Larsen discovered that disclosure practices varied widely. More than one-third of the surveyed brokers disclosed relevant information to all potential purchasers, but 19 per cent never disclosed the information at all.

Larsen's study concluded that stigmatized homes sold for just 3 per cent less than those not associated with scandal or violence, but stayed on the market for 45 per cent longer than average.

American law books are filled with reports of cases involving the lack of disclosure of property stigmas. Typically, the vendors and the real estate agents get sued by unhappy buyers. About half of the U.S. states have disclosure laws, and the other half do not.

[Updated 5:40 pm] Thanks to Doug Masson of the blog of the same name, we have an answer. It turns out Indiana does have a law on point, IC 32-21-6, "Psychologically Affected Properties," passed in 2002. It appears to be like the Florida law, referenced above. Some provisions of the Indiana law:

IC 32-21-6-5 Disclosure not required
Sec. 5. An owner or agent is not required to disclose to a transferee any knowledge of a psychologically affected property in a real estate transaction.

IC 32-21-6-6 Refusal to disclose; misrepresentation
Sec. 6. An owner or agent is not liable for the refusal to disclose to a transferee:
(1) that a dwelling or real estate is a psychologically affected property; or
(2) details concerning the psychologically affected nature of the dwelling or real estate.
However, an owner or agent may not intentionally misrepresent a fact concerning a psychologically affected property in response to a direct inquiry from a transferee.

Posted by Marcia Oddi on July 2, 2007 03:34 PM
Posted to Indiana Law

Ind. Decisions - Even more on: Appeal of Indiana voter ID case to Supreme Court anticipated

Updating this ILB entry from June 30th, on the upcoming filing of a cert petition in the Indiana voter ID case (Crawford v. Marion County Election Board), Prof. Rick Hasen of the Election Law blog has now posted the cert petition - access it via this entry.

Posted by Marcia Oddi on July 2, 2007 03:14 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Notre Dame case goes to SCOTUS

The case is JOAN LASKOWSKI and DANIEL M. COOK v. MARGARET SPELLINGS, Secretary of Education, and UNIVERSITY OF NOTRE DAME. For background, see this ILB entry from July 26, 2006, reporting on the 7th Circuit's denial of a rehearing in the case.

Inside Higher Ed reports today, in a story titled "Complicated Legal Win for Notre Dame" that begins:

A complicated legal dispute involving separation of church and state, management of federal grants, and the right to sue may now be decided based on that last question, one of standing, and the University of Notre Dame could benefit.

On Friday, the U.S. Supreme Court accepted an appeal by the University of Notre Dame of an appeals court’s ruling that the university might have to repay a $500,000 federal grant — even though the money had already been spent. The Supreme Court not only accepted the appeal, but vacated the ruling by the U.S. Court of Appeals for the Seventh Circuit, and ordered the lower court to reconsider the case in light of another ruling by the Supreme Court last week. That ruling, on the question of standing, could pose a challenge for those suing Notre Dame as it makes it much harder for citizens to challenge spending that they believe violates the separation of church and state.

The suit that led to all these legal maneuvers was filed by two taxpayers, helped by the Indiana Civil Liberties Union, charging that Congress violated the separation of church and state when it earmarked $500,000 to Notre Dame in 2000 so the university could spread its Alliance for Catholic Education, which helps train teachers for Roman Catholic schools, to other universities. The appeals court ruling last year focused not on church and state, but on the question of whether the university could be forced to pay the government $500,000 when it had already spent the grant money, in accordance with the terms set out by the Education Department to manage the funds. * * *

Last week, the Supreme Court — in one of a series of 5-4 rulings — rejected a challenge brought by taxpayers on church-state grounds to the White House Office of Faith-Based and Community Initiatives. [ILB - that was Hein - access it here.] The opinion held that the taxpayers’ views of the church-state issue did not give them legal standing to challenge it. In ordering the Notre Dame case to be re-evaluated in light of the White House case, the Supreme Court didn’t say explicitly that the standing issue should be examined. But that would appear to be the similarity in the two cases, and may not bode well for the plaintiffs.

Posted by Marcia Oddi on July 2, 2007 01:30 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP)

For publication opinions today (5):

In Leanethi Luphahla v. Marion County Sheriff's Department , a 7-page opinion, Senior Judge Barteau writes:

On December 25, 2002, Luphahla was involved in an accident on Michigan Road in Indianapolis. She filed her complaint alleging that Marion County Sheriff Deputy David Loyal caused the accident by coming into her lane of travel, hitting her car and causing her injury. The Sheriff’s Department filed its answer, affirmative defenses and counterclaim, in which it claimed that Luphahla crossed into oncoming traffic and hit Deputy Loyal’s vehicle, causing him injury. The cause went to trial. Following Luphahla’s presentation of her case-in-chief, the Sheriff’s Department moved for a judgment on the evidence. The trial court granted the Sheriff’s Department’s motion for judgment on the evidence, as well as the Sheriff’s Department’s motion to dismiss its counterclaim. Luphahla then filed a motion to correct error, which the trial court denied. This appeal ensued. * * *

Based upon the foregoing discussion and authorities, we conclude that the trial court properly exercised its discretion in granting the Sheriff’s Department’s motion for judgment on the evidence. Affirmed.

In Marie B. Augle n/k/a Marie B. Deluca v. William H. Augle , a 5-page opinion, Judge Darden writes:

Marie B. (Augle) DeLuca (“Wife”) appeals the trial court’s modification of the post-nuptial agreement entered into by Wife and William H. Augle (“Husband”). We reverse and remand with instructions. * * *

Because the trial court made no findings of “fraud, duress, other imperfections of consent, or manifest inequities,” we reverse the trial court’s judgment only as to Paragraph 11 of the post-nuptial agreement. * * * Thus, we remand this cause to the trial court with instructions to give full force and effect to the post-nuptial agreement in the entirety.

In City of Kokomo, Indiana and Kokomo Board of Public Works and Safety v. John J. Iseminger and Professional Firefighters of Kokomo Local 396, a 5-page opinion, Judge Kirsch writes:

The City of Kokomo (“City”) and the Kokomo Board of Public Works and Safety (“Board”) appeal the trial court’s declaratory judgment in favor of John Iseminger (“Iseminger”) and the Professional Firefighters of Kokomo Local 396, Inc., (“Union”) and order enjoining the Board from holding any further hearings related to the disciplinary charges filed against Iseminger. The sole issue for our review is whether the trial court erred in entering judgment in favor of Iseminger and the Union and enjoining the Board from holding additional hearings on the charges. We reverse. * * *

The settlement of a disciplinary matter such as the one in this case is consistent with the Board’s authority as set forth in IC 36-8-3-2. Indeed, if the Board lacked such authority, the Board’s ability to administer the Fire Department would be seriously undermined. The trial court erred in concluding that the Board lacked the authority to reject or approve the agreement and in enjoining it from holding further hearings.

In Darrin Hornberger v. Farm Bureau Insurance , an 11-page opinion, Judge Darden writes:

Darrin Hornberger brings this interlocutory appeal of the trial court’s denial of his motion for summary judgment in an action brought against him by Farm Bureau Insurance ("Farm Bureau"), as subrogee of Robert Brewington, seeking damages for injuries suffered by Brewington when he was struck by a vehicle driven by Hornberger. We affirm. * * *

Bureau did not suffer a statutory waiver of its subrogation rights pursuant to Indiana Code section 27-5-7-5-6(b). Accordingly, the trial court did not err when it denied Hornberger’s motion for summary judgment so asserting.

In Gregory W. Brown v. J. Michael Katz, et al. , a 16-page opinion, Chief Judge Baker writes:

Appellant-plaintiff Gregory W. Brown (Brown) appeals the trial court’s dismissal of his malicious prosecution action against appellees-defendants J. Michael Katz (Katz), Jonathan Alpert (Alpert), the law firm of Goodman, Katz, Scheele & Bauswell (Katz firm), Lilly M. Schaefer (Schaefer), the law firm of Kopko, Genetos & Retson, LLP (Kopko firm), the Estate of Margaret Jewett (the Estate), the Margaret Jewett Living Trust (the Living Trust), James Jewett (Jewett), individually and as the alternate trustee of the Living Trust, and BroTwo, Inc. (BroTwo) (collectively, the appellees). Specifically, Brown argues that the trial court erred by dismissing his action after determining that he had failed to adequately comply with a discovery order. Finding that the trial court had given Brown sufficient opportunity to comply with its discovery orders, we conclude that the trial court did not abuse its discretion by dismissing the action, and we affirm the judgment of the trial court. * * *

While Brown argues that the trial court should have conducted an in camera review of the contested documents, appointed a special master, or provided him one more opportunity to comply before dismissing his action, we have previously held that

Trial Rule 37 has been substantially rewritten and no longer requires a trial court to impose a lesser sanction before dismissing an action or entering a default judgment, especially where the “disobedient party has demonstrated contumacious disregard for the court’s orders.” . . . . The choice of an appropriate sanction for a discovery violation is a matter committed to the sound discretion of the trial court. The only limitation on the trial court in determining an appropriate sanction is that the sanction must be just. T.R. 37(B)(2). [ILB-citations omitted]

Bankmark of Fl., Inc. v. Star Fin. Card Servs., Inc., 679 N.E.2d 973, 978 (Ind. Ct. App. 1997).

As previously noted, the trial court’s March 2006 order alerted Brown that the evidence sought was discoverable and that he “now has notice” that dismissal with prejudice was a possible sanction for future noncompliance. In light of Brown’s indolence, we agree with the trial court that the appellees had been sufficiently burdened and should not have been required to proceed. Therefore, we conclude that the trial court’s dismissal was just and the sanction not an abuse of discretion. The judgment of the trial court is affirmed.

NFP civil opinions today (2):

Matter of the Termination of Parent-Child Relationship of J.A.W., M.Z.V. and A.D.W.; Dawn Witters v. Warrick County Office of Family & Children (NFP) - termination, affirmed.

In Michael Tharp v. Soon Neff (NFP), a 9-page opinion, Chief Judge Baker writes:

Appellant-plaintiff Michael Tharp appeals the trial court’s dismissal of his complaint for damages against appellee-defendant Soon Neff that stemmed from an automobile accident. Specifically, Tharp argues that even though the complaint and accompanying documents had been incorrectly addressed when they were purportedly mailed to the county clerk’s office, the trial court erred in dismissing the action because the complaint had been properly filed when it was placed in the mail. Concluding that the action was properly dismissed, we affirm the judgment of the trial court. * * *

Although Indiana Trial Rule 5(F)(3) does not state that the filing fee is required—yet Boostrom determined that it was—Trial Rule 5(F)(3) specifically states that the complaint must be “mailed to the clerk,” which Tharp failed to accomplish. Thus, we conclude that Tharp’s mailing on October 17, 2005, did not achieve “filing” as contemplated by Indiana Trial Rule 5(F)(3), and the trial court correctly determined that Tharp’s action was barred by the statute of limitations as a matter of law.

NFP criminal opinions today (6):

M.F. v. State of Indiana (NFP)

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

Tishana Nash v. State of Indiana (NFP)

Carlos C. Rose v. State of Indiana (NFP)

Andrew Rowe v. State of Indiana (NFP)

David Elze v. State of Indiana (NFP)

Posted by Marcia Oddi on July 2, 2007 12:43 PM
Posted to Ind. App.Ct. Decisions

Law - Attorney who represented Seattle parents in a race-based lawsuit aims to recover his pro bono legal costs

The Seattle Times had this story June 29th about the attorney who successfully represented the parents challenging Seattle's plan for assigning students to public schools. (See this June 28th ILB entry headed "U.S. Supreme Court strikes down school integration plans.") A quote from the story:

[Harry] Korrell attributed his confidence to having represented Parents Involved in Community Schools for more than six years — pro bono — in the group's lawsuit against the Seattle Public Schools. The group, and the families it represents, believed the district's "Open Choice" plan violated the Constitution by using race as a factor in assigning students to oversubscribed Seattle high schools. The Supreme Court on Thursday sided with Korrell and the parents' group in a 5-4 decision.

A lenthy story reported by the Seattle Post-Intelligencer, also on June 29th, reports that Korrell aims to recover his pro bono legal costs. The report begins:

Seattle Public Schools, already stung from losing its long-running legal fight over voluntary desegregation measures, now faces a new trial: paying the seven-figure legal fees of the parents who sued the district.

Just one day after the U.S. Supreme Court ruled the district cannot use a racial tiebreaker in determining school assignments, the parents' "pro bono" attorney indicated he will try to recover legal costs he estimates will be seven figures.

"This stuff is expensive," attorney Harry Korrell, a partner at the Seattle law firm of Davis Wright Tremaine, said Friday. "There's no way to fight in federal court ... without racking up quite a legal bill."

District officials were caught off guard Friday but said they planned to fight what would amount to a significant financial hit.

Pressing a public school district to pay more than $1 million in legal fees to a large law firm "is a little contrary to the idea that pro bono is for the public good," said Shannon McMinimee, an attorney for the district.

Posted by Marcia Oddi on July 2, 2007 10:24 AM
Posted to General Law Related

Ind. Law - "IU research finds pediatricians rarely lose malpractice cases that make it to trial"

Shari Rudavsky reports today in the Indianapolis Star business section that begins:

Being served with a medical malpractice suit may rank among a physician's greatest fears.

But pediatricians, at least, rarely lose malpractice cases, says a new study by Indiana University researchers published today.

The study found that despite concerns about society's increasing litigiousness, claims against pediatricians have remained stable in the past two decades. In addition, such cases tend not to go all the way to trial.

About 68 percent of all cases brought in the past two decades against pediatricians were withdrawn or dismissed without payment, according to the study in the journal Pediatrics. About 27 percent were settled for the plaintiff.

Five percent of the claims went to trial and four out of five of those were verdicts in favor of the pediatrician, the study found.

"What was most surprising to us and should be of some comfort to doctors is that . . . the majority of cases just go away with no payment made whatsoever," said Dr. Aaron E. Carroll, an assistant professor of pediatrics at the IU School of Medicine and a co-author of the report.

Posted by Marcia Oddi on July 2, 2007 10:13 AM
Posted to Indiana Law

Ind. Gov't. - "Indiana allows legislators to leap right into lobbying"

Patrick Guinane of the NWI Times reports today:

The transition from Indiana legislator to lobbyist is a simple, lucrative leap that three region lawmakers have made in less than a year.

Crown Point Democrat Bob Kuzman is the latest Statehouse power broker to walk through the revolving door. He resigned his House seat Tuesday, a week after starting as a governmental affairs partner at Ice Miller, the state's third-largest law firm.

While more than two-dozen states mandate a cooling-off period of at least a year, Indiana and Illinois allow former legislators to slide straight into jobs predicated upon their ability to influence past colleagues.

Gov. Mitch Daniels has imposed rules prohibiting most former executive-branch employees from lobbying state agencies for one year after leaving the administration. But the Republican governor doesn't plan to push reluctant lawmakers to follow suit.

"If the Legislature decides to lift its own standards, apply some of these same principles, I'd be happy to see that," Daniels said.

Don't expect that to happen anytime soon. Lawmakers routinely rejected past efforts to limit their career paths, including a one-year lobbying ban that languished in the House in 2005. Whenever such restrictions come up, detractors are quick to note that Indiana employs a part-time Legislature, one that pays a base salary of only $11,600 plus another $25,000 in annual expense reimbursements. * * *

All told, roughly two-dozen former lawmakers patrol the Statehouse as lobbyists, including at least three former House speakers.

Posted by Marcia Oddi on July 2, 2007 10:05 AM
Posted to Indiana Government | Legislative Benefits

Courts - "Indiana lawyer tackles campaign-finance, election laws, winning 4 out of 5 challenges"

Maureen Groppe of the Indianapolis Star Washington Bureau has a long story today about Terre Haute attorney Jim Bopp. Some quotes:

WASHINGTON -- Not many attorneys get to argue before the U.S. Supreme Court.

Terre Haute attorney James Bopp Jr. has done it five times and won four of them, including an election law challenge decided by the court last week.

"Four out of five, that's 80 percent," Bopp said. "It doesn't really get any better than that."

The court agreed with Bopp's client, Wisconsin Right to Life, that it could air ads mentioning lawmakers and financed by unknown donors shortly before an election. That's a major change to the McCain-Feingold campaign finance law, passed in 2002 to try to reduce the role of money in politics.

Bopp's one loss was the North Carolina Right to Life's unsuccessful argument that nonprofit organizations should be exempt from a ban on corporate contributions to federal candidates.

"He's a dynamo, one of the most tenacious lawyers I've ever seen," said Richard L. Hasen, a law professor at Loyola Law School, Los Angeles, who has been on the opposite side in some of Bopp's cases, including the latest one.

Hasen said Bopp has been successful in part because recent changes in the Supreme Court's composition have given his arguments a more receptive audience. But Bopp also "used every procedural tool at his disposal to force the court to address the issue," Hasen said.

In a profile of Bopp last year, the American Bar Association's journal called the 59-year-old "perhaps the most prominent lawyer in the country in campaign finance and election law, especially as the go-to guy for conservative religious groups wanting to work within the system, but work it for sure."

"He's kind of made the field for himself," Hasen said. "There wasn't anybody before Jim that was going around the country, trying to knock out every campaign finance law and judicial speech code he could find."

Bopp said of his strategy: "I think we do everything legally possible and ethically permitted to win."

There is much more to the story, including some mixed reviews.

Here is a long list of earlier ILB entries mentioning Mr. Bopp; here is the Nov. 3, 2006 ABA Journal entry.

Posted by Marcia Oddi on July 2, 2007 09:53 AM
Posted to Courts in general

Sunday, July 01, 2007

Law - More on "Some law firms paying to do pro bono work"; More on pro bono in general

This June 19th ILB entry quoted from two Wall Street Journal articles, the first from Dec. 1, 2005, titled "Trial-less Lawyers: As more cases settle, firms seek pro bono work to hone associates' courtroom skills," and the second, from June 19, 2007, titled "Law Firms Willing to Pay to Work for Nothing."

This story from the June 24th Boston Herald editorial staff, described charities requiring law firms to pay to do their pro bono work as engaging in a "shakedown":

The legal profession never ceases to astonish us. Big law firms now are paying charities for access to cases the firms can then handle without a fee.

These cases are not landlord-tenant squabbles, divorces of poor couples or fights between neighbors, all of which go begging for lawyers who will donate their services, The Wall Street Journal reports. No, the cases in question will dress up any lawyer’s resume - things such as overhauling the legal system of Liberia - and augment the bragging rights of his or her firm, especially when it comes to recruiting at upper-echelon law schools. For that, big firms like to stress the amount of pro bono work (from the Latin pro bono publico, “for the public good”) they handle.

Lawyers Without Borders, which tries to strengthen legal systems overseas, was reported to require law firms to donate $7,500 a year if they want to get referrals. Volunteer Lawyers for the Arts Inc. “gives first crack at desirable cases” to firms that contribute.

More on the boom in pro bono in general. A press release from Winston & Strawn last week announced that:

CHICAGO--(BUSINESS WIRE)--McDonald's Corporation announced today that it has entered a partnership with its law firm Winston & Strawn LLP designed to enhance its current substantial pro bono program by encouraging participation among personnel across McDonald's legal department.

"McDonald's is a terrific corporate citizen, and their partnership with us to assist the underserved in our society is just another demonstration of their spirit of goodwill," said Winston & Strawn chairman Dan K. Webb.

The partnership is part of McDonald's May Pro Bono Month initiative and will include training of volunteers, currently underway, to provide pro bono assistance in three distinct areas:

* Adoption assistance: Volunteers will help process the adoptions of Illinois children for low-income guardians.
* Domestic violence victim assistance: Volunteers will assist victims of domestic violence in obtaining asylum relief through a program initiated and funded by the United States Department of Justice.
* Low income home buyers program: Volunteers will represent clients who receive housing choice vouchers in applying these vouchers toward a home purchase.

"We're thrilled to partner with our longtime law firm, Winston & Strawn, to do something so important for the community," said Gloria Santona, executive vice president, general counsel and secretary, McDonald's Corporation.

The New York Lawyer reported on June 19th:

Wounded soldiers who allege that the government is downplaying their injuries and cheating them out of benefits have some new legal ammunition: three major law firms offering free legal services.

Concerned that injured soldiers are getting a raw deal upon returning home, three firms: Foley & Lardner; Atlanta's King & Spalding; and New York's LeBoeuf, Lamb, Greene & MacRae, have offered to do pro bono work on behalf of veterans who are appealing low disability ratings made by the government.

Those ratings dictate how much money injured veterans are entitled to, along with any medical and retirement benefits.

According to attorneys, numerous veterans at Walter Reed Army Medical Center who have served in Iraq and Afghanistan have claimed that the military is underrating their injuries, thus shortchanging them of benefits they've earned.

Ehren Halse, one of 15 King & Spalding attorneys who has volunteered to help the veterans, said, "it's outrageous to think that these people would suffer in the line of duty and then not be given their disability.

"When I first heard these stories, I thought, 'You know what, there's got to be a role for lawyers here,' just to advocate and help these veterans through the process. "

A July 2 story from The American Lawyer is headlined "Pro Bono Starts at the Top." Some quotes:

"Historically, I had always been a busy lawyer," says the former litigator, who has served as head of Morgan, Lewis & Bockius since 1999. "I billed large hours. But I had not spent any time on pro bono since my early days as an associate. Once I became chair, I began to think about the glue that holds an organization together. I began to think about our obligations as lawyers."

Those obligations, he decided, went beyond profits. In 2005 he told Morgan Lewis partners at an annual retreat that they must rededicate themselves to pro bono work. He also announced that he would lead by example. Milone took on his first case in many years -- representing a disabled teenager who is suing a public school district outside Philadelphia for better educational opportunities -- and went on the road, preaching the good word about pro bono to lawyers in the firm's 11 largest American offices. "I found pent-up demand for attention to this area," he says. * * *

Our five-year review also shows that for a pro bono revolution to stick, it had better begin at the top. That was true at Morgan Lewis, where lawyers, spurred by Milone, devoted an average of 67.1 hours each to pro bono matters in 2006, a 90 percent increase from 2002, when they averaged 35.4 hours. It is also true at DLA Piper, where a long-serving pro bono partner has the ear of co-chairmen Francis Burch Jr., and Lee Miller and has helped the firm nearly double its pro bono average, to 89 hours from 45 hours in pre-merger 2002; and at Hogan & Hartson, another firm that has spent the last five years chipping away at the competition.

"A move toward a common definition of pro bono work" is the title of a second American Lawyer article, also dated July 2nd. This is an important article. Here are some quotes:

When we began measuring pro bono activity in the '90s, we relied on a version of what's come to be known as The Pro Bono Institute's definition, also known as the Law Firm Pro Bono Challenge. With the exceptions and modifications below, we once again adopt it as our own. Here's the pertinent text:

The term "pro bono" refers to activities of the firm undertaken normally without expectation of fee and not in the course of ordinary commercial practice and consisting of (i) the delivery of legal services to persons of limited means or to charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of persons of limited means; (ii) the provision of legal assistance to individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights; and (iii) the provision of legal assistance to charitable, religious, civic, community, governmental, or educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate.

The PBI definition comes with a body of commentary, some of which can be found at probonoinst.org. We ask firms that report their pro bono numbers to The American Lawyer to follow the PBI rules with the following exceptions:

# We do not include pro bono hours by summer associates or paralegals.

# We understand that in a limited number of cases, firms will seek court-awarded legal fees. We ask that at the beginning of cases where such fee applications may be possible, firms commit to donate their fees to legal service organizations, to their own charitable foundations, or into an earmarked firm account to cover pro bono expenses. If a firm does not make that commitment, we ask that hours on these cases not be reported to us as pro bono work. This is in line with pro bono principles announced by the Association of the Bar of the City of New York.

# We ask that firms interpret strictly the rules governing pro bono activities for well-endowed nonprofit organizations, such as human rights, animal rights and cultural institutions. Work that furthers programs that address the needs of poor people or protects civil or public rights qualifies as pro bono for these purposes. Work that organizations could otherwise pay for that does not address those goals does not qualify. The work may be worth doing -- we have high regard for symphonies, art museums and humane shelters -- but it doesn't count as pro bono. Please don't include it in the number you report to us.

# We underline PBI's decision not to count hours spent on board service for nonprofits or general bar activities unrelated to performing legal services for poor persons or fulfilling civil or public rights.

We have tried to keep this simple and have kept our exceptions to a minimum. Undoubtedly there will be further modifications in the coming years as PBI and The American Lawyer gain wisdom. There are several definitional issues that PBI is confronting, and we await the results of its work, reserving the right to disagree. For one thing, at some point we expect that the PBI drafters will do better than the phrase "persons of limited means." On its face, who doesn't meet that test? We'd prefer something more objective, such as "income pegged to 200 percent of federal poverty guidelines."

Re issues about what constitutes pro bono reported in earlier ILB entries, see this entry from Nov. 15, 2005, titled "More on Winston & Strawn LLP's free defense of former Illinois Gov. George Ryan,", and this one from Nov. 10, 2005, titled "Definition of "pro bono" at issue in Milwaukee Clean Water Act case."

Read about the Indiana Pro Bono Commission here, on the Indiana Courts website.

Posted by Marcia Oddi on July 1, 2007 06:05 PM
Posted to General Law Related

Ind. Law - "Law criminalizes notario publico deception"

Pablo Ros of the South Bend Tribune reports today on a new state law: "Starting today, a new state law would regulate how notaries public or notarios publicos advertise their services. The law would require a disclosure that the person is not an attorney." More from the story:

A notario público, according to the Web site of the National Association of Mexican Notaries, is "a highly specialized lawyer with special juridical formation."

A notary public, on the other hand, is "a public officer of the state, authorized by law to certify documents, take affidavits, and administer oaths," according to the Web site of the Indiana Secretary of State.

While a notario público and a notary public share some duties, like certifying documents, the former is a highly educated professional and the latter could be anyone at least 18 years old who is a legal resident of the state.

But the difference is often lost in translation. While some Spanish speakers interviewed for this story said they knew the distinction, others said they believed a notary public to be a lawyer.

A new law that goes into effect today would make it illegal for a notary public in Indiana to advertise in either Spanish, English or both languages without including the following disclosure: "I am not an attorney licensed to practice law in Indiana, and I may not give legal advice or accept fees for legal advice."

A violation of this law is a Class A misdemeanor, punishable by up to one year in prison and a $5,000 fine.

The new law builds on existing legislation. It also makes it a Class A misdemeanor for a person who is not an attorney to advertise or claim to be an expert on immigration matters. And it forbids a person convicted of notario publico deception from reapplying for a new commission.

The new law is SEA 445.

Not mentioned in the story, but something that may be recalled by regular ILB readers, is that in late 2005 our Supreme Court issued an unauthorized practice decision against a woman providing "immigration services" as a notary public. The case was State of Indiana ex rel. Indiana State Bar Assoc., et al v. Ludy Diaz, as reported in this Dec. 6, 2005 ILB entry. See also this follow-up entry from Dec. 12, 2005.

Posted by Marcia Oddi on July 1, 2007 10:03 AM
Posted to Indiana Law

Courts - More on: The Supreme Court - birth of a new jurisprudential era?

Updating this ILB entry from June 29th, David Savage of the LA Times writes in a lengthy front-page story today:

WASHINGTON — In what may signal a generational shift in power, new Chief Justice John G. Roberts Jr. led a confident conservative majority at the Supreme Court this year and moved the law to the right on abortion, religion, campaign funding and racial diversity.

Working with a 5-4 majority, Roberts prevailed in nearly all the major cases.

In just his second term, the 52-year-old chief justice wrested control from the 87-year-old John Paul Stevens, the remaining justice who served on the court during its liberal era. Roberts was able to prevail because of the key votes cast by Justice Samuel A. Alito Jr., 57, who last year succeeded centrist Justice Sandra Day O'Connor.

Robert Barnes writes in the Washington Post:

Chief Justice John G. Roberts Jr. started the Supreme Court term in October with sunny forecasts of strong majorities and collegial agreements based on finding common ground.

He ended it listening to a long lecture from a justice objecting not just to the most important decision Roberts has written in his time on the court, but to the way the court has changed under the chief justice.

"It's not often in law that so few have changed so much so quickly," Justice Stephen G. Breyer said in what served as a lament for liberals both on and off the court.

The court's steady and well-documented turn to the right this term came as justices confronted some of the nation's most politically charged issues -- abortion, race, free speech, the death penalty, the separation of church and state. One issue missing from that list -- the campaign against terrorism -- was added to next year's agenda with the announcement Friday that the court will review the rights of terrorism suspects detained at Guantanamo Bay in Cuba.

Linda Greenhouse of the NY Times has a front -page story headed "In Steps Big and Small, Supreme Court Moved Right." The long report begins:

It was the Supreme Court that conservatives had long yearned for and that liberals feared.

By the time the Roberts court ended its first full term on Thursday, the picture was clear. This was a more conservative court, sometimes muscularly so, sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small.

As a result, the court upheld a federal anti-abortion law, cut back on the free-speech rights of public school students, strictly enforced procedural requirements for bringing and appealing cases, and limited school districts’ ability to use racially conscious measures to achieve or preserve integration.

The story is accompanied by some marvelous graphics, the most striking being this chart (suitable for framing) labeled "Major 5-4 Decisions of the Term," which vividly illustrates how, as several have said, this is Justice Kennedy's court now..

Posted by Marcia Oddi on July 1, 2007 09:23 AM
Posted to Courts in general

Ind. Law - "State encouraging hospital competition"

Seth Slabaugh of the Muncie Star-Press reports in a long and informative story today headlined "State encouraging hospital competition: If Clarian builds a hospital west of Muncie, it would be consistent with Indiana's public policy." Some quotes:

MUNCIE -- Clarian Health Partners, which is rumored to be considering a site west of Muncie for a new hospital, has been spreading out in all directions from its Indianapolis base the past several years.

"Hospitals are told to compete," said Robert Morr Jr., vice president of the Indiana Hospital and Health Association, a trade group. "That's the rules by which they play."

Clarian was formed 10 years ago by the merger of three Indianapolis hospitals -- Indiana University, Methodist and Riley Hospital for Children.

In the past three years, Clarian has opened new hospitals in Avon and Carmel, broken ground on a hospital in Lafayette, bought 95 acres for a hospital in Fishers, bought 158 acres in Bargersville for health-care facilities and signed an agreement to pursue collaborative opportunities with Morgan Hospital and Medical Center in Martinsville.

Clarian reportedly will buy 100 acres southwest of Ind. 332 and Nebo Road -- across the street from a Menards superstore -- if the site is annexed by Muncie and de-annexed by Yorktown.

Indiana stopped regulating how many hospital beds should be built in the state in the mid-1980s. Since then, certificates of need no longer have been required to build hospitals.

"The public policy in Indiana -- and in Washington -- for 20 years has been to stimulate competition," Morr said. "The public debate is: Does competition lower cost and increase quality, or does it increase cost and lower quality? After 20 years, that question has not been answered." * * *

"I'd be surprised if Clarian built a hospital up there (in Muncie), but you never know," said Dennis Dawes, president of Hendricks Regional Health, a 45-year-old, county-owned hospital in Danville, just eight miles from where Clarian opened a hospital in Avon three years ago. "Keep in mind, Hendricks County is the second-fastest-growing county in the state. That's why Clarian did what they did."

Delaware County has been losing population since 1970 as auto and other factories have downsized and closed.

"I would think they wouldn't want to go to an area like that," Dawes said. "Clarian's impact on us has been very minimal because we're a fast-growing area."

Adding a second hospital to a county whose population is declining "certainly will not do anything but drive costs up if it happens to dilute the patient volume," Dawes said.

Clarian's hospital strategy in Delaware County could be to attract as many good-paying, heavily insured patients as possible and "keep the others -- the uninsured and underinsured -- going to the other place," Dawes said.

More from the astory:

Blake Dye, president of Henry County Memorial Hospital, also questions whether more hospital beds are needed.

"We have a responsibility in health care to build what is needed," he said. "I just read today there is overbedding in Indianapolis, which can lead to duplication and increased costs, which is not good for citizens or businesses. I don't know why anyone would go into Delaware County to compete. Ball Memorial Hospital has historically met the community's needs and I think it still does. So I don't understand it."

Morr responded: "From a public policy standpoint, the answer to the overbedding question is that competition serves the public interest. In a free market, patients will vote with their feet. In a free market, you can build filling stations on all four corners. Do you need four on the same corner? The market will decide. Can they all survive? Probably not. Right now in Indiana, we're seeing an explosion of pharmacies -- Walgreens and CVS in the same market. Are we well served? Should there be government regulation of pharmacies? The answer is no." [emphasis added]

But is this a free market? Can an uninsured person find out all the information he needs to choose the "best" hospital? (Or is the real question, can an uninsured person even be admitted to a hospital, regardless of promise to pay?) And if the individual is insured, isn't it the insurer which will be "voting with its feet," not the patient?

Finally, not mentioned in today's story, but important in this discussion are two Indiana federal court decisions in late 2005 and early 2006, where county efforts to place a moratorium on health care construction were rejected by the courts. See this Jan. 31, 2006 ILB entry titled "Re recent federal court decisions on whether Indiana communities have right to restrict new medical centers."

Posted by Marcia Oddi on July 1, 2007 08:48 AM
Posted to Indiana Law

Ind. Law - More on new laws taking effect July 1

"Buckle up, Hoosiers: New laws take effect" is the headline to this story by Niki Kelly in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on July 1, 2007 08:30 AM
Posted to Indiana Law

Saturday, June 30, 2007

Ind. Courts - New federal Judge Van Bokkelen to avoid criminal cases

Joe Carlson writes today in the NWI Times:

If indicted public figures like Robert Cantrell, Jewell Harris Sr. or Will Smith Jr. go on trial someday, they won't go to the courtroom of U.S. District Judge Joseph Van Bokkelen.

The soon-to-be judge will be prohibited from hearing any of those ongoing criminal cases, because they originated during Van Bokkelen's tenure as the top prosecutor in the Office of the U.S. Attorney of the Northern District of Indiana.

The recusals won't be limited to those three cases, which involve the alleged East Chicago political fixer, the Gary powerbroker, and the Lake County councilman, respectively.

Any case that came through the U.S. attorney's office between his appointment in October 2001 and when Van Bokkelen formally takes the bench next month will be off limits in his court.

"It's a very broad recusal," Van Bokkelen said. "If I was going to err, I'd err on the side of recusal."

In order to avoid the appearance of bias, Van Bokkelen said he intends to stay away from any case in which an FBI agent has even held preliminary discussions with a federal prosecutor in his office.

That means the new judge will probably hear very few criminal cases in his first year on the bench, he said, adding that the recusal policy will also extend to civil cases involving U.S. attorney staff, like bankruptcies and environmental actions.

Posted by Marcia Oddi on June 30, 2007 12:02 PM
Posted to Indiana Courts

Ind. Law - Many new laws take effect July 1

Here are some of the stories reporting on new laws taking effect July 1:

From WISHTV 8: "New Laws Taking Effect July 1 in Indiana"

From CBS News: "Hundreds Of New Laws Take Effect July 1" (focus on weather radios in mobile homes)

From Terre Haute Trib-Star: "New Indiana seat-belt laws will affect nearly all passengers on Hoosier roads"

From the Muncie Star-Press: "New law: Everybody must wear seat belt starting Sunday"

From the Gary Post Tribune: "Seat belt law applies to all Hoosiers on Sunday"

From the Muncie Star-Press: "New state gambling laws doom poker clubs, Cherry Masters"

From the AP: "New state laws take effect July 1"

Posted by Marcia Oddi on June 30, 2007 11:49 AM
Posted to Indiana Law

Ind. Decisions - More on "Ruling supports Carmel annexation"

Updating this ILB entry from June 27th, John Tuohy of the Indianapolis Star writes today under the headline "Town officials ready to go after Geist: But annexation foes say Fishers' case unlike Carmel one." His report begins:

Town officials said Thursday they would waste little time trying to annex property in unincorporated Geist now that the Indiana Supreme Court has ruled in a Carmel annexation dispute.

"My hope was that the court's decision would provide a roadmap, and that appears exactly what they have done," said Fishers town attorney Doug Church.

In a ruling many legal observers considered landmark, the court said Wednesday that Carmel could annex 8.3 square miles in southwest Clay Township. Several Indiana municipalities with annexation plans put them on hold until the Carmel case was decided.

Those towns and cities, including Fishers, see the finding as a green light.

"To me, this ruling just reinforces that annexation is permitted in the state of Indiana," Fishers Town Council President Scott Faultless said. "So long as we follow the law, we can successfully annex areas . . . involuntarily."

Faultless said he would move ahead as soon as possible to annex 2,000 homes and aims to finish by year's end.

Opponents, however, have other ideas, according to the Tuohy story.

Posted by Marcia Oddi on June 30, 2007 11:39 AM
Posted to Ind. Sup.Ct. Decisions

Law - More on: "5-4 ruling limits use of race by district"

Updating this entry from June 29th on the SCOTUS public school racial diversity opinion, Ese Isiorho of the Fort Wayne News-Sentinel writes:

The Supreme Court's 5-4 decision Thursday to strike down school integration plans in Louisville, Ky., and Seattle could affect the ethnic makeup of Fort Wayne Community Schools.

As Allen County's most diverse school district, with almost 32,000 students who speak 71 different languages, FWCS uses several methods to ensure diversity in its individual schools.

“Through a combination of choice and magnet schools and racial balance, we try to get a diverse mix of students at every school,” said FWCS spokeswoman Susan Imler. Racial balance means schools must have no less than 10 percent to 15 percent black students and no more than 45 percent to 50 percent. * * *

While FWCS has been following the Supreme Court decision, Imler said “it's going to take us a while to really digest it.” FWCS lawyer Bill Sweet, who is studying the ruling, was unavailable for comment.

Posted by Marcia Oddi on June 30, 2007 11:31 AM
Posted to General Law Related

Ind. Decisions - Still more on: Appeal of Indiana voter ID case to Supreme Court anticipated

On May 16th the ILB reported:

The ILB has just learned that the ACLU-represented plaintiffs and the Indiana Democratic Party have each made final decisions to file separate but complementary cert petitions in Crawford v. Marion County Election Board. The petitions are currently due July 5.

For background, see this May 2nd ILB entry titled "Potential appeal of Indiana voter ID case to Supreme Court anticipated."

Today the Fort Wayne Journal Gazette's Washington reporter, Sylvia A. Smith, reports in a lengthy story:

The Supreme Court will decide whether Indiana’s voter ID law is too much of a burden for some people, as the state’s Democratic Party argues, or is a prudent way to prevent voter fraud, as Republican lawmakers contend.

The Democratic Party and the American Civil Liberties Union of Indiana will file a request Monday asking the court to review the legal fight over the law. Voter ID has operated in two primaries and a fall election since the state legislature adopted a requirement that voters must produce photo identification at polling places.

The court will either agree to hear the case – ultimately choosing between the Indiana Democratic Party’s view and the state law – or refuse to consider it, which would be a victory for backers of the law.

No one can predict which cases the Supreme Court will decide to hear. Thousands are submitted for review; only a handful are chosen each year. * * *

Two dozen states have similar laws, and the federal appeals courts have disagreed on whether they are constitutional.

Although about six states have had voter identification requirements for years, most laws were passed in the past decade, prompted by fears that people who weren’t eligible to vote would try to cast ballots, said Jennifer Bowser of the National Conference of State Legislatures.

“There’s a lot of controversy over whether that’s true,” she said of the concerns about widespread voter fraud.

Nevertheless, that was the rationale Indiana’s Republican-controlled legislature used when it approved the law in 2005.

“We have come to a time … where voters need more confidence in the election process,” Secretary of State Todd Rokita said as the Indiana General Assembly was considering the legislation.

Opponents argue that a voter ID requirement addresses a non-existent problem and deters some people from voting. They say poor, elderly or minority voters are more likely to sit out Election Day if they have to produce some kind of identification. Poor and minority voters tend to vote Democratic.

A federal court didn’t buy that contention, in part because when the state Democratic Party and the American Civil Liberties Union sued to overturn the law, they did not name anyone who was rejected at the ballot box for lack of an ID.

“By not even having found one of these people, that does not convey substantial disenfranchisement,” Judge Richard Posner said when the case was argued in Chicago.

In the 2-1 ruling he wrote for the 7th U.S. Circuit Court, Posner said, “No doubt there are at least a few such people in Indiana, but the inability of the sponsors of this litigation to find any such person to join as a plaintiff suggests that the motivation for the suit is simply that the law may require the Democratic Party and the other organizational plaintiffs to work harder to get every last one of their supporters to the polls.” * * *

William Groth, an Indianapolis attorney for the state Democratic Party, said the appeals court should have made the state prove that impostors have voted in Indiana and that the law would fix that. Instead, he said, Posner put the burden of proof on the opponents of the law.

“There is no evidence that this type of impostor voting has occurred in the state of Indiana,” Groth said, “yet there’s lots of evidence it occurs in absentee balloting. But the legislature chose to exempt absentee voting.”

Posted by Marcia Oddi on June 30, 2007 11:11 AM
Posted to Ind. (7th Cir.) Decisions

Friday, June 29, 2007

Ind. Decisions - Supreme Court issues opinion in air bag warning case

In Ford Motor Company and Eby Ford Lincoln Mercury a/k/a Eby Ford Sales, Inc. v. Marilyn Rushford, an 8-page, 5-0 opinion in a case where oral arguments were heard Dec. 14, 2006, Justice Rucker writes:

A retail merchant has a duty to warn a buyer of the danger posed by a product it sells. However, absent special circumstances not present in this case, if the manufacturer provides adequate warnings of the danger of the product and the seller passes these warnings along to the buyer or consumer, then the seller has discharged its duty to warn.

In May 2002, along with her husband, then seventy-year-old Marilyn Rushford purchased a new 2002 Ford Focus Wagon from Eby Ford Lincoln Mercury a/k/a Eby Ford Sales, Inc. (“Eby”). When the couple bought the car, Rushford informed the Eby salesperson that she had never driven an automobile. * * *

Concerning Eby, the Court of Appeals determined there was a genuine issue of material fact as to whether it was reasonable for Eby not to warn Rushford to read the air bag warning in the owner’s manual. Accordingly, the Court of Appeals affirmed the trial court’s denial of Eby’s motion for summary judgment. Having previously granted transfer we now reverse the judgment of the trial court on this issue. Except as otherwise provided we summarily affirm the Court of Appeals’ opinion. See Ind. Appellate Rule 58(A)(2). * * *

In this case there is no dispute about the adequacy of the air bag warnings contained in the owner’s manual provided by the manufacturer. Nor is there any dispute that the owner’s manual was provided with the 2002 Ford Focus Wagon when Eby sold it to Rushford. Further, there is no claim that the automobile was modified or altered such that the manufacturer’s warnings would be insufficient to place Rushford on notice concerning air bag danger. Thus, we conclude that having provided Rushford with the manufacturer’s warning, Eby was under no duty to give Rushford additional warnings, including advising Rushford to read the manufacturer’s warnings based on Eby’s knowledge of “Rushford’s peculiar characteristic.” Rushford, 845 N.E.2d at 203. To conclude otherwise would place retail sellers like Eby in the position of attempting to determine which particular manufacturer warnings may be of unique importance to an individual consumer and then direct the consumer’s attention to those warnings. In our view this is an untenable position and an unnecessary burden.

Conclusion. We reverse that portion of the trial court’s order denying Eby’s motion for summary judgment. This cause is remanded with instructions to enter summary judgment in Eby’s favor.

Posted by Marcia Oddi on June 29, 2007 03:46 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Governor announces new Public Access Counselor, effective immediately

From a press release this afternoon:

Governor Mitch Daniels announced today the appointment of Terre Haute native Heather Willis Neal as public access counselor for the state of Indiana. She succeeds Karen T. Davis whose term will expire on June 30.

Neal, who earned her law degree from the Indiana School of Law-Indianapolis, worked for nearly six years in the Office of the Indiana Secretary of State. She first served as director of business services and general counsel for former Secretary of State Sue Anne Gilroy and then, from 2003 to 2005, as chief of staff for Secretary of State Todd Rokita. Most recently, she was the executive director of School Choice Indiana, Inc.

Neal earned her undergraduate degree from Franklin College. Her appointment will be effective on July 1 and will expire on June 30, 2011.

Posted by Marcia Oddi on June 29, 2007 03:40 PM
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending June 29, 2007

Here is the Indiana Supreme Court's transfer list for the week ending June 29, 2007.

Note the "transfers with opinion"; these cases were posted earlier this week.

One grant today does not include an opinion, Central Indiana Podiatry, P.C. v. Kenneth Krueger & Meridian Health Group, P.C. The ILB posted the Court of Appeals decision Jan. 31, 2007, under the heading "Non-compete clause likely valid, court says".

Also of interest, the Court has denied transfer in the case of Denison Parking v.Barbara L. Davis & Jack Davis, where the Court of Appeals ruled that the business owner had no duty to clear the adjacent sidewalk. Oral arguments were heard in this case Tuesday - see ILB entry here.

Finally, this marks the end of the Court's fiscal year. Statistics on opinions issued, etc., cover the fiscal year period. This will probably be the last transfer list until July 20th. The Court's next conference is currently scheduled for the 3rd week of July.

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 29, 2007 03:14 PM
Posted to Indiana Transfer Lists

Courts - The Supreme Court - birth of a new jurisprudential era?

The American Constitution Society for Law and Policy hosted a 90-minute review yesterday of the 2006-07 Supreme Court term. It was going on even as the opinions on the last case (the school cases) were being delivered at the Court. You can watch it online here.

One of the participants, Thomas C. Goldstein, Akin Gump Straus Hauer & Feld LLP's Supreme Court Practice Chief; Lecturer, Stanford Law School and Harvard Law School; and founder of SCOTUSblog, had these concluding remarks, which you can find at about 1:24 of the video:

What we're probably going to look back on this term as, as if it were June 15, 1961 in reverse.

June 15, 1961 was the day that Mapp v. Ohio was decided, and it was, in effect, sort of the birth of the Warren Court era. It was decided by a 5-vote majority, they overruled Wolf v. Colorado and applied the 4th Amendment to the states, and it started a whole trend, a series of cases, from Reynolds v. Sims to Frontiero v. Richardson, all of the major doctrines that law students today think of as if they were written into the Constitution, had their birth at the end of the term in 1961.

The Court can really only go the right from here in terms of what you would expect in terms of retirements. So it is very unlikely that we will start heading back to the left in any significant way. And so it may be the birth of an entirely new jurisprudential era.

Read it and weep, or read it and cheer, depending on your proclivities, but the prediction itself looks pretty sound.

Posted by Marcia Oddi on June 29, 2007 01:18 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 20 NFP)

For publication opinions today (1):

In Ronald Hensley v. Melissa Hensley , a 10-page opinion, Judge May writes:

Ronald Hensley appeals the modification of his support obligation for two daughters born during his marriage to Melissa Bales. He alleges the court placed an excessive obligation on him. We reverse and remand. * * *

When dividing college expenses, the trial court must take into account “the ability of each parent to meet” the educational expenses required for college. Ind. Code § 31-16-6-2(C). Our calculations indicate Hensley will be unable to provide for himself or his family under this educational support order, while Bales will be permitted to remain unemployed and have money returned to her. Consequently, it is not clear the trial court, when fashioning this order, properly considered the parents’ abilities to meet college expenses. We conclude the result reached is inequitable and unjust.

As a final matter, we stress that this case is not about a father who is unemployed or underemployed. Nor is it about a parent who amassed a huge support arrearage by failing to pay support for a number of years. Before Bales sought to modify support to include college expenses, Hensley was current in his child support payments. He works nights to make more money per hour, and he already works more than 60 hours per week to support himself and his four children. He cannot be expected to do any more. The current order effectively penalizes Hensley for working overtime, while rewarding Bales for remaining unemployed.

Because our examination of the record leaves us with the firm conviction a mistake has been made, we reverse and remand for the court to enter a new order based on the evidence already before it.

NFP civil opinions today (2):

Gregory L. Brown v. Medical Licensing Board of Indiana (NFP) - "Appellant-petitioner Gregory L. Brown appeals from the trial court’s dismissal of his petition for judicial review of appellee-respondent Medical Licensing Board of Indiana’s (Board) request for relief from a default order terminating his license to practice medicine in Indiana. Brown argues, among other things, that the trial court erroneously ruled on the Board’s motion to dismiss before his time to respond thereto had passed and that he should have been entitled to seek relief analogous to that provided by Indiana Trial Rule 60(B) even though he was litigating in an administrative setting. Finding that even if the trial court ruled on the motion precipitously such error was harmless, and finding that even if Brown was entitled to seek something akin to Rule 60(B) relief he has failed to establish that such relief was warranted, we affirm the judgment of the trial court."

Rochelle Fichter v. Larry A. Fichter (NFP) - "We reverse the trial court’s interpretation of Father’s child support obligation pursuant to the Dissolution Order. The contract unambiguously conditioned Father’s seventy-five dollar per week payment on the existence of marital debt. Thus, we remand that issue with instructions that the trial court recalculate Father’s child support arrearage from the date Father had completely paid off the marital debt to the present at the rate of $160 per week. In all other respects, we affirm the trial court. Reversed in part and remanded with instructions."

NFP criminal opinions today (18):

Shirley Walker v. State of Indiana (NFP)

Valerie Hogston v. State of Indiana (NFP)

Glenn Swift v. State of Indiana (NFP)

Jill Mansfield v. State of Indiana (NFP)

Tammy Jo Pabst v. State of Indiana (NFP)

Donald Anderson v. State of Indiana (NFP)

Karen Maples v. State of Indiana (NFP)

Julie Gardiner v. State of Indiana (NFP)

Roger D. Gamble v. State of Indiana (NFP)

James E. Middleton, Jr. v. State of Indiana (NFP)

Jeffrey House v. State of Indiana (NFP)

Phillip Benson v. State of Indiana (NFP)

Troy Monroe v. State of Indiana (NFP)

Robert D. Eddie v. State of Indiana (NFP)

Arthur I. Williams v. State of Indiana (NFP)

William Ward v. State of Indiana (NFP)

Michael Hardin v. State of Indiana (NFP)

Byron D. Thompson v. State of Indiana (NFP)

Posted by Marcia Oddi on June 29, 2007 12:35 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Federal trial involving what constitutes illegal speech on the Internet goes to jury today

Updating yesterday's ILB entry, Joe Carlson of the NWI Times reports today:

HAMMOND -- After an afternoon of deliberations, a federal jury Thursday convicted Vikram Buddhi of 11 counts of using the Internet to threaten American leaders and the nation's infrastructure.

Buddhi, an Indian national who has spent a decade studying at Purdue University in West Lafayette, never disputed writing online messages such as, "Call for the assassination of GW Bush."

Rather, the jury in U.S. District Court in Hammond was asked to decide whether Buddhi's comments were true threats or part of a crude online protest of the Iraq War that should be protected by free speech rights.

The jury ruled that a reasonable person reading Buddhi's messages online could conclude that he intended to harm the president, the vice president, their wives and the secretary of defense, and to blow up various power plants and methods of mass transit. * * *

Buddhi never took the stand in his three-day trial, and the defense offered only one witness, an attorney who had located other threatening messages on the same financial news message board Buddhi used.

Secret Service Special Agent Wade Gault testified the case would have set a new standard for speech if Buddhi had not been punished for exhorting assassination. * * *

Defense attorney John Martin argued crude political banter is common on Internet message boards, and Buddhi had no actual intention of harming anyone.

"Where does it say Mr. Buddhi is going to kill the president, the vice president? It doesn't. These comments are posted in the context of the debate about the Iraq War," Martin said.

"You have to look at what was going on in the world at that time."

Martin compared Buddhi's remarks to a comment that commentator Ann Coulter made this week, wishing that presidential candidate John Edwards would be killed by terrorists.

Assistant U.S. Attorney Philip Benson said Buddhi must be held accountable for the words he chose to write on his computer and publicly post for anyone in the world to read.

"What is this? Is the Internet the wild, wild West, where you can say anything? That's not the way it's worked out," Benson said. "It's the same as sending a letter."

Posted by Marcia Oddi on June 29, 2007 09:22 AM
Posted to Ind Fed D.Ct. Decisions

Law - "5-4 ruling limits use of race by district" [Updated]

The Louisville Courier Journal has much coverage today of yesterday's SCOTUS ruling directly impacting the Louisville school system. The lead story begins:

A divided U.S. Supreme Court struck down Jefferson County Public Schools' desegregation policy yesterday -- saying the district's use of race in assigning students was unconstitutional.

The landmark decision placed new limits on the ability of districts nationwide to pursue racial diversity.

In a 5-4 decision, Chief Justice John Roberts said that by classifying students by race, the Louisville and Seattle school districts perpetuated unequal treatment and had failed to justify the use of race.

[Updated] The Indianapolis Star has posted the LA Times story by David Savage, accompanied by this sidebar by Andy Gammill on Indianapolis Public Schools' reaction:

Indianapolis Public Schools uses race as a factor in assigning students to schools, but officials believe the policy is acceptable within the court's ruling.

The district bases its policy on the desire to ensure diversity in schools and to avoid isolating students, which are the reasons Justice Anthony M. Kennedy advocated in his opinion, said Maree Sneed, IPS' Washington-based lawyer.

"Indianapolis has said that it's important to have diverse schools," said Sneed, who also represented Seattle in its case before the Supreme Court.

She said IPS will review the ruling to ensure the district doesn't need to refine its policies, but it appears IPS need not make changes.

Other districts in the area said they don't use race as a factor. Lawrence Township Schools changed its policies recently to assign students based on other factors, such as socioeconomic status.

Warren, Washington and Wayne townships confirmed they don't consider race.

Officials with the Indiana School Boards Association said they knew of no other Indiana districts that took race into account, and association lawyers could not recall any districts that had made inquiries about the topic.

Posted by Marcia Oddi on June 29, 2007 09:12 AM
Posted to General Law Related

Ind. Decisions - More on U.S. Supreme Court opinion in Panetti issued

In this ILB entry on the U.S. Supreme Court's ruling yesterday in Panetti v. Quarterman (née Drake), the ILB quoted the Jan. 17th order of our Supreme Court staying the pending execution of Norman Timberlake based on the SCOTUS grant of cert in the Texas Panetti case and the likelihood that the high court "may soon revisit and address the application of the Eighth Amendment to claims that mental illness bars execution."

Today in a lengthy story in the Louisville Courier Journal, Lesley Stedman Weidenbener looks at the implications of the Panetti ruling for Norman Timberlake. Some quotes:

[Gary Secrest, the Indiana Attorney General's section chief for appeals and capital cases] and Timberlake's lawyer yesterday had different views on the Panetti ruling's impact.

"It's our belief that Norman is as sick if not sicker" than the defendant in the Texas case, said Timberlake's attorney, Brent Westerfeld.

And Paula Sites, assistant director of the Indiana Public Defender Council, said the U.S. Supreme Court's decision is a good one for Timberlake because it means he'll likely be entitled to a hearing to determine whether he is too delusional to understand why he's being executed.

But Secrest said the high court's decision simply makes clear that Indiana already applies the correct standard for determining whether a defendant is so mentally ill that the death penalty would be unconstitutional. * * *

Yesterday's ruling did not establish new guidelines for courts to use in determining whether a defendant's mental illness makes the death penalty unconstitutional.

"They don't give a short, catchy new standard," said Andrea Keilen, executive director of the Texas Defender Service. But the court said "you have to consider someone's severe mental illness as a factor in whether the person has a rational understanding and appreciates the connection between the crime and punishment."

According to a court-appointed psychiatrist, Timberlake "believes that he is the subject of torture by a computer-driven machine operated by prison officials 24 hours a day, seven days a week." However, Timberlake also retains the "capacity to understand that he is about to be executed and why," the psychiatrist said.

The latter is why the attorney general's office believes "it's pretty clear" that the Texas decision will allow Timberlake's death sentence to stand, Secrest said.

But Westerfeld said, "Norman believes he's being executed because he's trying to prove the government" is using the computer-driven machine to torture him. "He's been thoroughly convinced that machine exists and he's being killed because he's been trying to prove that for a number of years now."

Posted by Marcia Oddi on June 29, 2007 08:57 AM
Posted to Indiana Decisions

Ind. Courts - More on: Allen County Judge recuses herself in case where son has role

Updating yesterday's ILB entry, Dionne Waugh reports today in the Fort Wayne Journal Gazette:

The U.S. Army says a Fort Wayne attorney was not correct when he told a judge that a recruiter – possibly the judge’s son – misled a woman about the status of her criminal charges.

Defense attorney Al Anzini told Allen Superior Court Judge Fran Gull that his client had enlisted in the Army and left the state for training because her recruiter convinced her the charges had been dropped.

Gull recused herself from the case Wednesday after Anzini filed paperwork that appeared to show Gull’s son – Sgt. Cody Gull – was the recruiter. She had previously refused to do so because she believed the case only involved her son’s recruiting station, not her son.

On Thursday, Mary Auer, public affairs officer for the U.S. Army’s Indiana Recruiting District, said Sgt. Gull was not the woman’s recruiter. She also said numerous background checks, including one by the FBI, showed that the woman had no pending charges.

Posted by Marcia Oddi on June 29, 2007 08:53 AM
Posted to Indiana Courts

Ind. Courts - "Attorney, defendant fail to show up for trial"

Nick Werner reports today in the Muncie Star-Press:

MUNCIE -- An Indianapolis defense attorney who failed to appear in court for a Thursday trial could face contempt charges and will be fined for the cost of trial preparations, a judge said.

Delaware Circuit Court 5 Judge Wayne Lennington sent home 28 prospective jurors after waiting unsuccessfully for an hour Thursday morning for attorney Kimberly Powell and her client, Kyle Ivy, 23, to show up.

The judge apologized on behalf of the attorney for wasting their time and taxes.

"We spent $831.16 of your money to get this far and now there's nothing we can do because we don't have a defendant and we don't have an attorney," Lennington said.

The calculated loss included labor for court employees, copy costs for juror questionnaires and other papers, postage, and the $15 stipend that jurors receive for going through jury selection before trial.

It did not include overtime for Delaware County Sheriff's Deputy Scott Brand, a witness in the trial, which will be calculated in later, the judge said.

Lennington said he would recover the money from Powell.

The judge also set a hearing for July 10 in which Powell must show cause why the judge should not hold her in contempt of court. Lennington did not rule out jail time should he find her guilty.

Lennington said he would notify the Indiana Supreme Court Disciplinary Commission of the problem.

The judge held a 10-minute hearing Thursday morning in the presence of the jurors in which assistant court reporter Chris Doerner testified that he mailed a notice of the trial to Powell's office and tried reaching her by phone to remind her.

Efforts to reach her by phone failed, Doerner said, because her phone had been disconnected.

By Thursday afternoon, the court had yet to reach Powell.

Posted by Marcia Oddi on June 29, 2007 08:47 AM
Posted to Indiana Courts

Thursday, June 28, 2007

Ind. Courts - U.S. Senate unanimously confirms Joseph S. Van Bokkelen to serve as U.S. District Judge for the Northern District of Indiana [Updated]

A press release this afternoon begins:

U.S. Sen. Dick Lugar announced today that the U.S. Senate unanimously confirmed Joseph S. Van Bokkelen to serve as U.S. District Judge for the Northern District of Indiana:

“I congratulate Joe Van Bokkelen on his Senate confirmation. His performance as U.S. Attorney for the Northern District of Indiana has been nothing short of remarkable and I am confident that he will approach his judgeship with the same enthusiasm and proficiency.

“Judge Rudy Lozano has been a remarkable leader on the Federal bench and we look forward to his continued leadership as he assumes senior status."

[Hat tip to Fort Wayne Observed]

[Updated 6/29/07] "Van Bokkelen wins confirmation" is the headline to a story today in the Gary Post-Tribune by Andy Grimm that begins:

U.S. Attorney Joseph Van Bokkelen, whose prosecutions of crooked politicians made him one of Northwest Indiana's most popular and prominent public officials, has been confirmed as federal judge for Northern Indiana District of Indiana.

The U.S. Senate on Thursday afternoon approved the Highland resident to replace Judge Rudy Lozano, who will take senior status -- essentially taking on a partial caseload -- in July.

"I'm going to go home and try to pull my head out of the clouds," Van Bokkelen said Thursday as he stood outside the ceremonial courtroom at the Hammond Federal Building, the room that will become his office.

"I always thought it would be neat to be a federal judge."

Dan Hinkel writes in the NWI Times:

The veteran trial lawyer said he was "honored" to be suggested by Republican Sen. Dick Lugar, nominated by President Bush and confirmed by the Senate.

Van Bokkelen said he is proud of a U.S. attorney's office staff that has done its job with "dignity" since President Bush appointed him a U.S. attorney in 2001. In six years, Van Bokkelen's office has tallied dozens of public corruption indictments and convictions while also attacking gun and drug cases.

"What I'm most proud of is the professionalism of the office," he said.

Lugar called Van Bokkelen this afternoon to tell the attorney he was unanimously confirmed by the full Senate, Van Bokkelen said. Lugar praised Van Bokkelen for his aggressive pursuit of corrupt officials and his prosecutions of gun and drug crimes.

Posted by Marcia Oddi on June 28, 2007 08:23 PM
Posted to Indiana Courts

Ind. Courts - New court in Monroe County to cost $1.38 million

The Blooomington Herald Times has a story today ($$$) by James Boyd that begins:

The new Monroe County court, slated to come online on Jan. 1, 2008, will require 18 employees, supplies and equipment at a cost of about $1.38 million.

Judicial officials presented their plan Wednesday night to the county council on how much it’s going to cost and how they think it should be paid for.

The $1.38 million will be paid for through an excess levy.

But if history is any indication, Monroe County can expect to have that figure trimmed down by the state.

The county proposed a $1.5 million increase in property taxes to pay for the court that began in 2006, but saw that figure dwindle to about $1 million after the state Department of Local Government Finance got its hands on it.

There hasn’t been a determination yet as to what kind of court the new one will be. It could be civil, criminal or a combination of the two.

Either way, it will require a new judge, three court reporters, two bailiffs, seven probation officers, three clerks, a court administrator and a justice information specialist.

Posted by Marcia Oddi on June 28, 2007 02:19 PM
Posted to Indiana Courts

Law - Register today for Sept. 14 conference featuring Justice Alito

Register today for the Sept. 14 conference featuring Justice Alito at the IU Indianapolis law school. Only 125 seats.

Posted by Marcia Oddi on June 28, 2007 02:13 PM
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 4 today (and 10NFP)

For publication opinions today (4):

In Robert M. O'Brien d/b/a Links Mortgage v. 1st Source Bank , a 12-page opinion, Judge Najam writes:

Robert M. O’Brien appeals from the trial court’s grant of summary judgment on the breach of contract claims of 1st Source Bank (“Bank”). O’Brien presents a single issue for our review, namely, whether the Bank acquired an enforceable lease against O’Brien from the bankruptcy of the Bank’s borrower. We affirm and remand with instructions.

Pinnacle Media is a familiar case, it went to the Supreme Court, including a rehearing denial, last year. See this ILB entry from May 3, 2006. Today, in Pinnacle Media, LLC v. Metropolitan Development Commission of Marion County and the Department of Metropolitan Development of the City of Indianapolis , a 10page opinion, Judge Najam writes:

Pinnacle Media, L.L.C. (“Pinnacle”) appeals from the trial court’s order denying its motion to amend its complaint in Pinnacle’s declaratory judgment action against the Metropolitan Development Commission of Marion County and the Department of Metropolitan Development of the City of Indianapolis (collectively “the City”).

Pinnacle raises two issues on appeal, which we restate as: 1. Whether res judicata bars Pinnacle’s proposed amended complaint. 2. Whether the trial court erred when it refused to apply Indiana Code Section 36-7-4-1109 to the claims raised in Pinnacle’s amended complaint. * * *

[The Court rules that res judicata applies, and as to issue 2] The law-of-the-case doctrine provides that an appellate court’s determination of a legal issue binds both the trial court and the court on appeal in any subsequent appeal involving the same case and substantially the same facts. The purpose of the doctrine is to minimize unnecessary relitigation of legal issues once they have been resolved by an appellate court. Accordingly, under the law-of-the-case doctrine, relitigation is barred for all issues decided “directly or by implication in a prior decision.” However, where new facts are elicited upon remand that materially affect the questions at issue, the court upon remand may apply the law to the new facts as subsequently found.

Because Pinnacle has already asked our Supreme Court to apply Indiana Code Section 36-7-4-1109 in this case, and the court has declined to do so, the issue has been resolved. Pinnacle does not direct us to “new facts” found since remand to warrant revisiting the issue. The trial court did not err when it did not apply the statute in this case. Affirmed.

Henry D. Hull v. State of Indiana "Henry Hull appeals the order that his suspended sentence be executed, arguing the trial court should have offered him the opportunity to speak at his hearing. We affirm. * * * Because Hull neither asked to speak nor objected to the lack of opportunity to speak, he waived his right of allocution."

In Jeff Doerr v. Lancer Transport Services , an 8-page opinion, Judge May writes:

Jeff Doerr appeals the decision of the Full Worker’s Compensation Board, which held that to reinstate his worker’s compensation claim against his employer, Lancer Transport Services, Doerr was required to pay Lancer the sums he obtained in a settlement reached with the third-party tortfeasor without Lancer’s knowledge or consent. Lancer cross-appeals alleging the Full Board erred when it reversed the Single Hearing Member’s decision to dismiss Doerr’s worker’s compensation claim. Finding the Single Hearing Member correctly dismissed Doerr’s claim, we reverse. * * *

Paragraph Two of Ind. Code § 22-3-2-13 requires us to hold Doerr’s settlement with the third-party tortfeasor without the written consent of Lancer or Legion, relieved Lancer of liability for Doerr’s worker’s compensation claim. If the legislature intended a different result under these facts, then we must leave it to the legislature to modify Ind. Code § 22-3-2-13. The decision of the Full Worker’s Compensation Board is reversed, and Doerr’s application for adjustment is dismissed.

NFP civil opinions today (2):

Oscar Guillen, Sr. v. Kerusso Properties (NFP) - "Guillen argues he is entitled to prejudgment interest under Ind. Code § 34-51-4-7, which provides: “The court may award prejudgment interest as part of a judgment.” However, this statute applies only to a “civil action arising out of tortious conduct.” Ind. Code § 34-51-4-1. Guillen’s claim sounds in contract and not in tort. Guillen has failed to establish prima facie error and we accordingly affirm."

Roy Alan Veatch v. Karen Veatch (NFP) - "Concluding that the trial court did not abuse its discretion with regard to parenting time, but that the court erred by dividing the marital assets without giving clear consideration to all the relevant statutory elements, we affirm in part and remand for a redetermination of the division and distribution of the parties’ marital assets."

NFP criminal opinions today (8):

Patrick Cox v. State of Indiana (NFP)

Monty Cook v. State of Indiana (NFP)

Andrew Evans v. State of Indiana (NFP)

Timothy Woodrfuff v. State of Indiana (NFP)

Damon Anderson v. State of Indiana (NFP)

Ronald C. Dixon v. State of Indiana (NFP)

Nick Dotts v. State of Indiana (NFP)

Calvin L. Wilson v. State of Indiana (NFP)

Posted by Marcia Oddi on June 28, 2007 01:49 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues one today

In Carolyn Kochert v. Adagen Medical (ND Ind., Allen Sharp, Judge), a 10-page opinion, Judge Sykes writes:

This appeal presents the question whether a claim for fraudulent inducement of a contract is subject to the contract’s forum-selection clause, and if so, whether the district court correctly dismissed this suit for improper venue. Carolyn Kochert, a medical doctor based in Lafayette, Indiana, filed a single-count complaint in federal court in the Northern District of Indiana seeking damages against Adagen Medical International, Inc., and North American Medical Corporation (collectively “Adagen”), each with principal places of business in Georgia. Kochert alleged Adagen made fraudulent written and verbal representations to induce her to enter into a contract to purchase a piece of medical equipment. The district court dismissed Kochert’s complaint for improper venue, citing the contract’s “Governing Law/Venue/Forum” clause, which provides (among other things) that Kochert consents to “jurisdiction, venue and forum in the State Court of Fulton County, Georgia.” The court took the view that any misrepresentation forming the basis of Kochert’s fraudulent inducement claim “necessarily” became “part of” the contract, making the claim subject to the forum-selection clause.

We affirm, but on different reasoning. A misrepresentation made in the inducement of a contract is not “necessarily” incorporated into the contract. A fraudulent inducement claim generally requires an election of remedies: either affirm the contract, retain the benefits, and seek damages, or rescind the contract, return the benefits, and seek restitution (reimbursement for expenses incurred as a result of the fraud). Here, Kochert elected to affirm the contract and sue for damages; that election, however, does not necessarily make the alleged misrepresentation “part of” the contract, as the district court apparently thought was required for the forum-selection clause to apply.

But dismissal for improper venue was correct in any event. The forum-selection clause contains no language limiting its application to certain categories of claims or remedies. The parties agreed to the State Court of Fulton County, Georgia, as the place of “jurisdiction, venue and forum” for disputes about their respective rights and obligations without regard to the nature of the claim; that choice is valid, enforceable, and broad enough to apply to Kochert’s fraudulent inducement claim.

Posted by Marcia Oddi on June 28, 2007 01:19 PM
Posted to Ind. (7th Cir.) Decisions

Law - "U.S. Supreme Court strikes down school integration plans"

Lyle Denniston of SCOTUSblog.com has just posted this entry that begins:

Concluding its current Term with a historic ruling on race in public policy, the Supreme Court divided 5-4 on Thursday in striking down voluntary integration plans in the public schools of Seattle and Louisville. Chief Justice John G. Roberts, Jr., wrote the majority opinion in the combined cases. Justice Anthony M. Kennedy did not join all of the majority opinion, but joined in the result.

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Roberts wrote. On the two school plans, the majority found that the districts have "failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts."

The Chief Justice, in his oral announcement of the ruling, insisted that the Court was remaining faithful to Brown v. Board of Education in barring public school districts from assigning students on the basis of race. Answering that, Justice John Paul Stevens said in dissent that there was a "cruel irony" in making that claim, because it involved a rewriting of the history "of one of this Court's most important decisions." Stevens noted that he joined the Court in 1975, and asserted that "no member of the Court" at that time "would have agreed with today's decision."

Access the 185-page rulings, via SCOTUS blog, here. Denniston outlines the features of the Seattle and Louisville school plans here.

Posted by Marcia Oddi on June 28, 2007 10:47 AM
Posted to General Law Related

Ind. Decisions - U.S. Supreme Court opinion in Panetti issued

The U.S, Supreme Court has just issued its opinion in Panetti v. Quarterman (née Drake) (via SCOTUSblog). In an order issued Jan. 17, 2007, our Indiana Supreme Court stated:

A recent development suggests that the Supreme Court of the United States may soon revisit and address the application of the Eighth Amendment to claims that mental illness bars execution. On January 5, 2007, the Supreme Court granted certiorari to the Court of Appeals for the Fifth Circuit in Panetti v. Drake. * * *

Timberlake's situation is sufficiently similar to Panetti's that a stay of Timberlake's impending execution is appropriate.

See the Jan. 17 and Jan. 18 ILB entries.

See Prof. Orin Kerr's entry on the decision here. He quotes the "key passage" from today's ruling:

Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose. It is therefore error to derive from Ford, and the substantive standard for incompetency its opinions broadly identify, a strict test for competency that treats delusional beliefs as irrelevant once the prisoner is aware the State has identified the link between his crime and the punishment to be inflicted.

MORE LATER

Posted by Marcia Oddi on June 28, 2007 10:40 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Federal trial involving what constitutes illegal speech on the Internet goes to jury today

Joe Carlson of the NWI Times has been covering an interesting trial in federal court this week - here is a complete list of stories. The trial, in U.S. District Court in Hammond, involves "Vikram Buddhi, an Indian national who has lived in the United States for more than a decade while attending engineering classes at Purdue University," according to this story from June 20th:

Prosecutors say that on three occasions in December 2005 and January 2006, Buddhi posted messages in Yahoo! Finance message boards urging Iraqi militants to kill the president and other government figures and to attack Americans.

"Kill GW Bush ... Rape And Kill Laura Bush ... Kill Donald Rumsfeld The Old Geezer Crook ... Rape And Kill The Anglosaxon Republicans," Buddhi wrote Dec. 15, 2005, in a message board devoted to chatter about the technology company JDS Uniphase.

Martin has said that although the speech was admittedly crude and offensive, it was protected by the First Amendment because the messages were intended as a protest of the Iraq War, not "true threats" that Buddhi intended someone to carry out.

Martin already has tried to convince Moody to dismiss the case on First Amendment grounds, but the judge ruled that only a jury could decide what Buddhi's true intentions were in posting the messages.

Assistant U.S. Attorney Philip Benson disclosed in court files that he intends to argue at trial that Buddhi's attempts to use other Purdue students' Internet Protocol addresses to conceal his online identity is evidence of his guilt.

Although the advanced engineering student used other people's IP addresses, Purdue eventually connected Buddhi with the postings using a second type of digital identifier called a Media Access Control address.

"Buddhi's use of stolen IP addresses to conceal his computer's identity is no different from a defendant who uses a false ID to hide his identity while committing a crime," Benson wrote.

From the June 26th story on jury selection:

Asked about Internet use, only one of the initial 15 jurors said he had ever read an Internet blog. [U.S. District Judge James Moody] even said he did not know what a blog was.

Reporter Carlson's June 27th story relates that Secret Service Special Agent Wade Gault, on April 13th, arrested Buddhi and:

had search warrants executed on his apartment. In recent e-mails to prosecution witnesses, Gault wrote, "This case is very important and it could lay a new foundation of what is free speech and what is not."

Buddhi has argued his comments are political protest and protected by the First Amendment.

Gault said the law is clear that such threats against the president's life are illegal.

"Those are statements that as far as I know have always been prosecuted by the Secret Service," Gault said in court Tuesday. "If it was determined by this court that you could say those words and not be prosecuted, that would be something new."

At issue are five messages Buddhi posted to Yahoo! financial message boards in December 2005 and January 2006, three of which bore the headline, "Call for the assassination of GW Bush."

Gault said the long delay in arresting Buddhi came because Yahoo was slow in responding to subpoenas, and because Purdue computer experts had to take time to unravel Buddhi's method of disguising his identity.

Today's story reports:

HAMMOND | Vikram Buddhi, charged with using Internet forums to call for the killing of President Bush, put his fate in the hands of an obscure New York stock analyst Wednesday.

Buddhi's attorneys are hoping that a scalding series of insults hurled at Bank of America analyst Jonathan Jacoby in an online forum in 2005 can help them prove the point that nasty communication is common on the Internet. * * *

"It should be illegal speech," said Texan Hayward McMurray, a prosecution witness who first reported Buddhi's comments to the Secret Service. "I don't consider free speech as calling for the rape and murder of anyone."

Defense attorney John Martin has argued that the comments never were intended as true threats, but rather a part of a crude protest of the Iraq War.

McMurray said he had never seen anything so shocking in an online forum before.

But in a surprise move Wednesday, Martin said his legal team had just discovered other vicious messages on the same financial news forum, posted minutes after the Dec. 13, 2005, message that led McMurray to complain.

The messages called for Jacoby to be mugged and murdered because he downgraded his rating of a satellite radio stock. The message writers said Jacoby's family should be murdered in front of him and that he should be raped by a gang of men.

After trying unsuccessfully to convince U.S. District Judge James Moody not to admit the new evidence, Benson said the messages were irrelevant. And because of the late notice, the government had not had time to investigate whether the people who wrote the messages had been prosecuted.

Buddhi is an Indian national who has lived legally in Indiana for more than a decade while attending advanced math and physics classes at Purdue University in West Lafayette. He was charged with 11 crimes for posting the five messages.

Secret Service Special Agent Wade Gault has said the Buddhi case is significant because it could set a new legal precedent for what constitutes illegal speech on the Internet.

Closing arguments are scheduled this morning.

Posted by Marcia Oddi on June 28, 2007 09:26 AM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Allen County Judge recuses herself in case where son has role

From the Fort Wayne Journal Gazette, a story by Dionne Waugh:

Allen Superior Court Judge Fran Gull recused herself from a case Wednesday after learning her son, an Army recruiter, was involved in the case.

When Ericka M. Anderson did not appear in court June 18 for a pretrial hearing, her defense attorney, Al Anzini, told the judge her Army recruiter – later identified in documents as Army Sgt. Cody C. Gull – had convinced Anderson the charges against her had been dropped. * * *

Court officials were notified in May when Anderson did not appear for an appointment. Officials told the court they’d discovered Anderson had enlisted in the Army and was at Fort Leonard Wood, Miss. Without permission to leave the state, Anderson was in violation of her bond.

Last week, Fran Gull revoked Anderson’s bond for the violation but declined to recuse herself despite a request from Anzini. At the time, she said she had no reason to recuse herself even though the case involved her son’s recruiting station.

On Wednesday, when Anderson appeared in court, Judge Gull recused herself from the case upon learning her son was Anderson’s recruiter. She did not know her son was the recruiter last week, only that it was his recruiting station, she said.

Posted by Marcia Oddi on June 28, 2007 09:18 AM
Posted to Indiana Courts

Ind. Decisions - "McManus returns to death row: State reverses ruling"

Bryan Corbin of the Evansville Courier & Press reports today on yesterday's 3-2 Supreme Court decision in State of Indiana v. Paul M. McManus (ILB entry here - 2nd case):

An Evansville man convicted of killing his wife and two children is not mentally retarded and therefore is eligible for the death penalty, the Indiana Supreme Court ruled Tuesday.

The state's highest court overturned a lower-court ruling that had declared Paul M. McManus could not be executed because he met the legal standard for mental retardation. * * *

A jury in 2002 rejected his insanity defense and convicted him of three counts of murder. McManus was sentenced to death.

McManus' appellate attorneys filed an appeal called a post-conviction relief petition, which a Vanderburgh County judge, Senior Judge William Brune, partially granted last year. Based on mental health experts who testified at the appellate hearing but not at the original trial, Brune found that McManus fit the legal standard for mental retardation, and therefore under a state statute and a 2002 U.S. Supreme Court ruling, McManus could not face execution. Brune altered McManus' sentence to life without parole. * * *

Written by Chief Justice Randall Shepard, the 19-page majority decision [issued yesterday] analyzes the mental health experts' testimony from McManus' hearing last year. Of the five IQ tests McManus has taken since childhood, he scored above the retardation level of 70 to 75 on three of them, and was borderline on the other two, Shepard wrote. Although Brune's ruling "concluded McManus was significantly sub-average as to intellectual functioning," Shepard wrote, "this finding is not supported by the record and is clearly erroneous." Four other issues raised in the appeal were also decided in favor of the prosecution.

Posted by Marcia Oddi on June 28, 2007 09:07 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Court overturns death penalty in child's murder"

Charles Wilson of the AP reports today on the 7th Circuit's June 18th decision in Christopher M. Stevens v. Daniel McBride (see ILB entry here). Some quotes:

A federal appeals court has overturned the death penalty for a man who raped and murdered a 10-year-old boy while on parole for child molesting -- a crime that led to the creation of the Indiana Sex Offender Registry.

Jurors might have spared Christopher M. Stevens if his attorneys had presented adequate evidence of his mental illness, the 7th U.S. Circuit Court of Appeals in Chicago concluded. * * *

"In this case, we find a reasonable probability ... that the result would have been different if the jury had heard mainstream expert psychological testimony," Judge Diane P. Wood wrote in the 2-1 ruling that found Stevens' defense inadequate.

Other experts who testified at hearings on post-conviction relief said Stevens likely suffered from a dissociative disorder, in which parts of the mind can be closed to each other, triggered by a childhood history as a victim of abuse. * * *

The June 18 ruling stopped short of overturning Stevens' conviction, though Judge Kenneth F. Ripple wrote in a separate concurring opinion that he believed that Stevens might not have been found guilty if a proper mental-illness defense had been mounted.

Judge Daniel A. Manion dissented, saying he believed the sentence should stand.

Posted by Marcia Oddi on June 28, 2007 08:52 AM
Posted to Ind. (7th Cir.) Decisions

Law - More on "High court ends ban on corporate-funded campaign ads"

Updating this ILB entry from Monday (June 25th) about the Supreme Court decision in FEC v. Wisconsin Right to Life, Arthur E. Foulkes of the Terre Haute Tribune-Star writes today:

Terre Haute attorney James Bopp Jr. got his fourth career victory in the U.S. Supreme Court on Monday when the high court ruled to allow “grass roots lobbying” that mentions a federal political candidate’s name just before an election.

The 5-4 decision came in the case of Federal Election Commission vs. Wisconsin Right to Life, whom Bopp was representing.

“It’s a huge victory,” Bopp said of the decision. “The court gave us more than we asked for.” * * *

“It was a huge victory,” Bopp repeated. “[The Supreme Court] has really seriously limited the application of that very broad [McCain-Feingold] law.”

Sen. John McCain (R-Ariz.), a co-author of the McCain-Feingold law, called the court’s ruling “regrettable,” but he characterized it as a “narrow exception” to the existing law.

Bopp disagrees, saying the court’s ruling makes it clear that the “blackout” period will only apply to advertisements that are clearly advocating for or against a specific federal candidate.

Bopp also believes that if McCain and others make enforcing the court’s Monday decision difficult, it’s possible a future decision would overturn the entire law.

“If there is defiance [to the court’s ruling] … I think they will strike down the whole law,” Bopp said.

This was the fifth case Bopp has argued before the Supreme Court – and his fourth victory in that setting.

Posted by Marcia Oddi on June 28, 2007 08:43 AM
Posted to General Law Related

Ind. Decisions - Tippecanoe Court upholds ordinance banning smoking

Joe Gerrety of the Lafayette Journal & Courier reports:

West Lafayette's workplace smoking ban will go into effect on Sunday.

Judge Thomas Busch of Tippecanoe Superior Court 2 on Wednesday granted a motion for summary judgment in favor of the city and against two plaintiffs -- Harry's Chocolate Shop, a West Lafayette bar; and David Rollings, a bartender and manager at the Wabash Yacht Club.

The plaintiffs filed a lawsuit in March seeking a declaratory judgment and court order prohibiting the city from enforcing the ban.

"The desire of the plaintiffs to continue to operate as they have done in the past is understandable," Busch wrote in an eight-page order upholding the smoking ban.

"The city could have accommodated this interest by granting all bars the option of allowing or forbidding smoking. However, the City Council decided to draw the line in a different place. ... The plaintiffs' remedies are in the political process, not the courts." * * *

The plaintiffs alleged that the ordinance violates the equal privileges and immunities clause of the Indiana Constitution because it exempts certain businesses, giving those businesses and their employees privileges denied the plaintiffs.

The most controversial exemption built into the ordinance appears to affect only one business -- Hookah!, a restaurant in Chauncey Hill Mall a few doors down from the Wabash Yacht Club where the main attraction is flavored tobacco smoked through rented pipes.

Such "tobacco bars," defined as establishments that derive at least 25 percent of their revenue from the sale of tobacco products and the rental of smoking devices, are exempt from the ban.

The ILB is pleased to note that the J&C story includes a link to Judge Bursch's 8-page opinion, which the J&C has posted online - access it here.

Posted by Marcia Oddi on June 28, 2007 08:32 AM
Posted to Ind. Trial Ct. Decisions

Wednesday, June 27, 2007

Ind. Decisions - "Ruling supports Carmel annexation" [Updated]

Bill Ruthhart of the Indianapolis Star reports this afternoon on the Supreme Court decision earlier today in the case of City of Carmel, Indiana v. Certain Southwest Clay Township Annexation Territory Landowners (see ILB entry here - 3rd case). Some quotes:

In an opinion released this afternoon, the Indiana Supreme Court has ruled Carmel should be allowed to annex southwest Clay Township.

The 5-0 opinion from the state's highest court overrules a Hamilton County judge's 2006 ruling that Carmel could not annex some of the state's wealthiest neighborhoods.

In question was a 2005 agreement between the city and a group called No Ordinance for Annexation, or NOAX.

NOAX had collected petitions against Carmel's attempt to annex the 8.3-square-mile area, roughly located west of U.S. 31, north of 96th Street, east of the Boone County line and south of 116th Street.

As required by state law, NOAX collected petitions against annexation from more than 65 percent of homeowners in the area. NOAX then entered negotiations with the city and Mayor Jim Brainard. * * *

NOAX dropped its court challenge to the annexation after the deal, but a second group, the Southwest Clay Community Association, picked up the fight. That association argued NOAX didn't have the authority to strike a deal on behalf of all homeowners.

In the Hamilton County court, Judge William Hughes, agreed, throwing out the agreement.

Today, the Indiana Supreme Court overruled that opinion, granting Carmel the right to annex southwest Clay under the deal with NOAX.

For background, start with this March 8, 2007 ILB entry.

[Updated 6/28/07] This morning Bil Ruthhart of the story has long and comprehensive coverage of yesterday's opinion, including these quotes:

The court's 5-0 ruling eventually will affect the pocketbooks of some of Indiana's wealthiest residents while increasing the tax revenues of one of the state's most affluent cities.

But interest in the annexation case extended far beyond Carmel, as communities from South Bend to Jeffersonville looked to a Supreme Court ruling as guidance on how to conduct future annexations. The Carmel decision marked the first time the state's highest court has ruled on current annexation law.

"Everyone -- cities and towns all over Indiana -- have been waiting for the Supreme Court to interpret this annexation statute," Carmel Mayor Jim Brainard said. "For that reason, this is a landmark case."

More from the story:

Fishers Town Council President Scott Faultless said the decision will be key in whether his town moves forward with plans to annex more than 2,000 properties in the wealthy waterfront community of Geist. Wednesday's ruling also likely will affect Carmel's annexation of Home Place, a case pending before the Indiana Court of Appeals.

But the most immediate effect will be felt in southwest Clay Township, where the nearly 10,000 residents who call some of Indiana's most exclusive neighborhoods home will soon become part of Carmel.

Here is the heart of the decision:

"The organization leading the remonstrance negotiated favorable terms with the city and decided to settle," Shepard wrote in the opinion. "In a referendum among landowners, a majority voted in favor of settling. We conclude they were entitled to do so, and reverse the trial court's judgment which effectively held otherwise."

Michael Shaver, an annexation consultant who has done work for Carmel and several other cities and towns across the state, said the Supreme Court's ruling effectively sets the NOAX deal as an example for other communities and property owners to follow.

"I really think this is not just a victory for Carmel, but a victory for democracy," Shaver said. "Carmel went to a lot of trouble to deal with the NOAX folks in an honest way, came up with an offer that was substantially better and then held a referendum to make sure people agreed with it.

"That was the center of the Supreme Court's decision: When you go to that kind of effort, a judge just can't ignore it."

The ruling makes Carmel's deal with NOAX effective this fall. Since that agreement calls for a three-year annexation delay, southwest Clay residents would not officially become part of Carmel until 2010.

Even then, they won't pay the full municipal tax rate because of the tax-break deal NOAX negotiated. Homeowners wouldn't pay the full municipal rate until 2013.

Rebecca Berfanger wrote late yesterday in the Indianapolis Business Journal:

“The decision confirms that the Supreme Court is committed to the idea of reinforcing a legislative system that empowers municipalities to annex land if the conditions of the statute are met,” [Bryan Babb, an attorney who represents Carmel] said. “Hiring an expert to poke holes in a city’s fiscal plan isn’t enough to stop an annexation that is done properly.”

The opinion also will help parties in annexation cases around the state, including those who face similar issues and who filed amici briefs on this case, Babb said, because “this opinion—for the first time ever—interprets the difference between signing a remonstrance and opposing an annexation. In this case, the trial court equated the two.”

“This opinion reinforces what the court has been saying for years now, that judges shouldn’t micromanage annexations,” Babb added. “There are important public-policy benefits from allowing annexations to go forward when they are done under proper conditions. In almost every annexation, there will be a vocal minority which will not want to be annexed, but that shouldn’t be enough to stop the annexation when done properly.”

Posted by Marcia Oddi on June 27, 2007 04:26 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP)

For publication opinions today (4):

Guardianship of Patrick Atkins; Brett Conrad v. Thomas Atkins and Jeanne Atkins - The question here is whether Brett, Patrick's life partner for 25 years, would be permitted visitation and contact with Patrick, who had had a stroke, over objections of Patrick's parents. The decision is 2-1, with a dissent beginning on p. 19. Chief Judge Baker writes:

We find, among other things, that although the trial court did not abuse its discretion by naming the Atkinses to be Patrick’s co-guardians, there is overwhelming evidence in the record establishing that it is in Patrick’s best interest to continue to have contact with Brett, his life partner of twenty-five years. We also find that the trial court erroneously refused Brett’s request to have a portion of his attorney fees and costs paid by the guardianship estate. Thus, we affirm in part, reverse in part, and remand with instructions to grant Brett the visitation and contact with Patrick that he requested and to calculate the amount of Brett’s attorney fees and costs to be paid by the guardianship estate. * * *

Conclusion. We are confronted here with the heartbreaking fracture of a family. Brett and Patrick have spent twenty-five years together as life partners—longer than Patrick lived at home with his parents—and their future life together has been destroyed by Patrick’s tragic medical condition and by the Atkinses’ unwillingness to accept their son’s lifestyle.

Although we are compelled to affirm the trial court’s order that the Atkinses be appointed Patrick’s co-guardians under our standard of review, we reverse the trial court with respect to Brett’s request for visitation, inasmuch as all credible evidence in the record establishes that it is in Patrick’s best interest to continue to have contact with his life partner. We also find that the trial court should have required Patrick’s presence at the hearing but that Patrick’s GAL waived that right by failing to enforce it. Additionally, we conclude that the trial court properly set off the entirety of the Charles Schwab account to the guardianship estate. Finally, we find that the trial court erroneously refused Brett’s request that the guardianship estate pay a portion of his attorney fees and costs and remand for a calculation of the amount to be paid therefrom. * * *

ROBB, J., concurs.
DARDEN, J., dissents with opinion: I would respectfully dissent from the majority’s conclusion that the trial court erred when it did not enter an order granting Brett’s request for his visitation and contact with Patrick. * * *

When the majority concludes that “the overwhelming wealth of evidence in the record, as well as common sense” supports the determination that visitation should be ordered, I believe that it has impermissibly substituted its judgment for that of the trial court. * * *

Here, the trial court did not find that Patrick’s welfare would be best served by limiting the scope of the Atkinses’ co-guardianship. The majority opinion necessarily implies such a finding by the trial court. To such a conclusion I would also respectfully dissent and suggest that the majority has impermissibly reweighed the evidence and assessed witness credibility in violation of our long accepted standard of review.

In Beth Palmer Kopczynski v. David Bryan Barger and Peggy Lucas Barger , a 19-page, 2-1 opinion, Chief Judge Baker writes:

[T]the Palmers claim that summary judgment was improper because there was a genuine issue of material fact as to whether the Bargers were negligent in allowing Alisha to play on their trampoline without any supervision. Alternatively, the Palmers contend that the Bargers should be held liable for the injuries that Alisha sustained because the trampoline was an attractive nuisance. Concluding that summary judgment was properly entered for the Bargers, we affirm the judgment of the trial court. * * *

In essence, the designated evidence established that Alisha knew of the trampoline’s dangers, and the record is devoid of any evidence that there was any hidden peril that Alisha could not have comprehended.

There is also no evidence that the Bargers knew that children might trespass on their property and be injured by the trampoline. As noted above, there was no communication or interaction between the Bargers and the Palmers before the accident occurred. In our view, this lack of interaction between the families supports the notion that the Bargers would not anticipate that Alisha would enter their property and use the trampoline. Moreover, Beth had specifically instructed her children not to wander on to the neighbors’ property. Finally, the designated evidence established that the Bargers permitted other children on the trampoline only if the adults had invited them onto the property.

In light of this evidence, it is apparent that the Bargers had no reason to know that Alisha might enter their property and jump on the trampoline without their express permission. Thus, the Palmers have failed to show that the Bargers may be held liable for Alisha’s injuries under an attractive nuisance theory. While we are sympathetic to Alisha’s plight, we conclude that summary judgment was properly entered for the Bargers. The judgment of the trial court is affirmed.

FRIEDLANDER, J., concurs.
CRONE, J., dissents with opinion. [that begins] I respectfully disagree with the majority’s conclusion that Alisha was a trespasser and that the trampoline was not an attractive nuisance as a matter of law. Therefore, I dissent.

In Pam Kuehne and Larry Kuehne v. United Parcel Service, Inc., a 13-page opinion, Chief Judge Baker writes:

In this case, we are asked to resolve an issue of first impression in Indiana. Appellants-plaintiffs Pam and Larry Kuehne (collectively, the Kuehnes) appeal the grant of summary judgment in favor of appellee-defendant United Parcel Service, Inc. (UPS), regarding their claim against UPS for negligence after Pam tripped over a package that a UPS driver left on the Kuehnes’ doorstep. Specifically, the Kuehnes argue that the trial court erred in determining that their claims against UPS were preempted by federal law. In response, UPS argues that the Kuehnes’ claims are preempted because “Congress has barred the application of state laws to determine how UPS provides its services.” Concluding that the Kuehnes’ claims against UPS are not preempted by federal law, we hold that summary judgment was improperly entered for UPS. Thus, we reverse the judgment of the trial court and remand this cause for trial.

Alexander C. Thompson v. Carmen M. Thompson - "Our Supreme Court has ruled that the question of the proper treatment of the Social Security retirement benefits received by a child in calculating child support should be left to the sound discretion of the trial court. We hold that a trial court abuses that discretion in setting support at a level that varies to such an extent from the standard of living that the child would have enjoyed had the family remained intact and that devotes substantially higher percentages of total family income to such support for families receiving Social Security benefits than those that do not. Accordingly, we reverse the trial court’s support calculation and remand for a recalculation of the support obligation consistent with this opinion."

NFP civil opinions today (3):

Robyn Hayden v. The Guardianship of D.H., a minor child (NFP) - guardianship, affirmed.

Charles E. DeMorrow v. Eunice L. DeMorrow (NFP) - property settlement agreement, affirmed.

Mitzi Ruth Stephens n/k/a Mitzi Ruth Elliott v. Kevin Ray Stephens (NFP) - "We conclude that Elliott has not demonstrated that the trial court improperly ordered that she must reimburse Stephens for college expenses he advanced due to Elliott’s failure to meet her obligation. Affirmed."

NFP criminal opinions today (3):

Richard A. Ostrander v. State of Indiana (NFP)

Donald Adkins v. State of Indiana (NFP)

Jeremiah T. Peters v. State of Indiana (NFP)

Posted by Marcia Oddi on June 27, 2007 01:41 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court posts three

In Tina M. Grant v. Gregory J. Hager, an 8-page (including the dissent), 3-2 opinion, in a case argued Jan. 18, 2007, Justice Sullivan writes:

Under the circumstances of this case, the trial court ordered a custodial parent to make child support payments to the non-custodial parent based on the court’s reading of the Indiana Child Support Guidelines. We hold that there is a rebuttable presumption that a custodial parent is not required to make child support payments under these circumstances but that a trial court has authority to deviate from that presumption in accordance with the Indiana Child Support Rules and Guidelines. * * *

The trial court recognized that Grant was the primary custodial parent but concluded that the Guidelines produced a “negative credit” and required modification of the support order. Accordingly, the trial court entered a judgment modifying child support and ordered Grant, the custodial parent, to pay child support to Hager, the non-custodial parent, in the amount of $92 per week. The parties were also to share certain other child-related expenses for extra-curricular activities in the same proportion as their incomes.

Grant appealed. Although she did not contest the trial court’s application of the Child Support Obligation Worksheet or calculation of Hager’s Parenting Time Credit, Grant argued that because the worksheet after credits produced a negative child support obligation for Hager, the Court of Appeals should terminate child support altogether. Basically, Grant contended that the Guidelines cannot result in a custodial parent paying support to the non-custodial parent. The Court of Appeals agreed and reversed the trial court’s award of child support payable to Hager and remanded with instructions to order that neither party owes the other support under their respective current incomes and their shared parenting time arrangement. * * *

[A] court could order a custodial parent to pay child support to a non-custodial parent based on their respective incomes and parenting time arrangements if the court had concluded that it would be unjust not to do so and the court had made the written finding mandated by Child. Supp. R. 3. The dissolution court’s conclusion here may very well be supportable on this basis but the court did not make the required findings here, apparently believing instead that the Guidelines themselves authorized it to order Grant to pay child support to Hager. We remand this matter to the dissolution court for reconsideration in accordance with the principles enunciated in this decision. * * *

Shepard, C.J., and Rucker, J., concur.
Boehm, J., dissents with a separate 3-page opinion in which Dickson, J., concurs. I believe the trial court properly applied the Guidelines and therefore respectfully dissent. An important purpose of the Indiana Child Support Guidelines is to ensure that children “receive the same proportion of parental income after a dissolution that they would have received if the family had remained intact.” * * *

Disparity of income between the custodial and noncustodial parent coupled with increased shared parenting time may produce a Parenting Time Credit that exceeds a noncustodial parent’s child support obligation. If so, it is appropriate for the trial court to order the financially advantaged custodial parent to make child support payments to the less advantaged noncustodial parent. If that is not done, either the noncustodial parent bears a dis-proportionate share of the cost of maintaining the child or the resources devoted to the child suf-fer. Neither is a desirable result. These considerations may be outweighed by others, but unless and until the Guidelines are adjusted to strike a different balance, a “negative credit” is called for under circumstances such as these. I would affirm the trial court’s order.

In State of Indiana v. Paul M. McManus, a 20-page, 3-2 opinion, in a case where oral arguments were held April 12, 2007, Chief Justice Shepard writes:

Having completed his direct appeal, Paul McManus sought post-conviction relief. The post-conviction court largely rejected his claims, except for his contention that he is mentally retarded. Persuaded by his retardation claim, the post-conviction court vacated the sentence of death and entered a sentence of life without parole. We direct judgment for the State. * * *

Conclusion. We reverse the post-conviction court’s holding on retardation, but otherwise affirm. Judgment for the State.

Dickson and Sullivan, JJ., concur.
Boehm, J., dissents [in a one-page opinion] with separate opinion, in which Rucker, J., concurs: I respectfully dissent. The majority has stated the applicable law correctly as I understand it. I believe, however, that the majority’s review of the evidence does not give sufficient deference to the trial court’s finding of mental retardation. * * * McManus’s IQ tested at 70 at age 22 and 72 at age 14. Both scores are in the range of intellectual functioning qualifying for mental retardation. The explanation offered that low IQ scores can be attributable to stress or inattention is for the trial court to accept or reject. * * *

We recently affirmed a finding by a trial court that a defendant was not mentally retarded despite significant evidence suggesting that he was. See Pruitt, 834 N.E.2d at 90. In my view the clearly erroneous standard of review dictates affirming this trial court’s determination as to mental retardation as well.

In City of Carmel, Indiana v. Certain Southwest Clay Township Annexation Territory Landowners, an 11-page, 5-0 opinion, where oral arguments were held March 8, 2007, Chief Justice Shepard writes:

The City of Carmel annexed territory in the southwest corner of Hamilton County representing roughly 3,400 parcels, and remonstrators contested the annexation. The organization leading the remonstrance negotiated favorable terms with the city and decided to settle. In a referendum among landowners, a majority voted in favor of settling. We conclude they were entitled to do so, and reverse the trial court’s judgment which effectively held otherwise. * * *

A substantial number of amici curiae have filed briefs supporting the two sides. We granted transfer under Ind. Appellate Rule 56(A), permitting a direct appeal. * * *

As a threshold issue we must determine what happens if a fiscal plan is amended after a remonstrance is filed, as in this case. The trial court concluded that a fiscal plan is frozen as of the adoption of the annexation ordinance that it supports. In other words, the court held that the fiscal plan supporting the original ordinance could not be amended – even in light of the settlement reached between Carmel and NOAX, confirmed by a majority vote of property owners. * * *

The trial court should have considered the settlement and the fiscal plan supporting the amended ordinance. * * *

We now review the trial court’s findings and conclusions as they bear on Carmel’s amended annexation ordinance and revised fiscal plan. * * * We do not set aside findings or judgments unless they are clearly erroneous, but we review questions of law de novo. * * *

To defeat an otherwise valid ordinance, all conditions of section 13(e)(2) [IC 36-4-3-13(e)(2)] must be met. They were not. Conclusion. We reverse and direct judgment for the City.

Posted by Marcia Oddi on June 27, 2007 12:51 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decides Indy Parks equal pay case

In Kimberly M. Sims-Fingers v. City of Indianapolis (SD Ind., V. Sue Shields, Magistrate Judge), a 7-page opinion, Judge Posner writes:

The plaintiff, the manager of a sixacre park owned by the Indianapolis and Marion County park system, complains that she is paid less than some of the male managers in the park system and that the difference in pay violates the Equal Pay Act. (She also claims that it violates Title VII; we take up that claim at the end of our opinion.) The Equal Pay Act requires an employer to pay his male and female employees at the same rate “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” 29 U.S.C. § 206(d)(1). The district court granted summary judgment for the city on both the Equal Pay Act and Title VII claims. * * *

Managing a park with a pool is, as we said, a more responsible job than managing a park without one, other things being the same. How large a wage premium should that greater responsibility command? Who knows? Our society leaves such decisions to the market, to the forces of supply and demand, because there are no good answers to the normative question, or at least no good answers that are within the competence of judges to give.

The proper domain of the Equal Pay Act consists of standardized jobs in which a man is paid significantly more than a woman (or anything more, if the jobs are truly identical) and there are no skill differences. An example might be two sixth-grade music teachers, having the same credentials and experience, teaching classes of roughly the same size in roughly comparable public schools in the same school district. ... The jobs of the managers of the different parks in the sprawling Indianapolis park system are nonstandard, mainly because the parks are so different from one another.

We turn last and briefly to the Title VII claim. Title VII does not require equal work, but neither does it allow for recovery on the basis of the theory of comparable worth. So merely showing that a man and a woman who perform different jobs for the same employer are paid differently does not get a Title VII plaintiff to first base. As that is all the evidence of sex discrimination that the plaintiff has presented, her Title VII claim was properly dismissed as well. ... We therefore need not consider the bearing of the Supreme Court’s recent decision in Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162, 2165-69 (2007), on the timeliness of the plaintiff’s Title VII claim; the decision has no bearing on her claim under the Equal Pay Act.

Posted by Marcia Oddi on June 27, 2007 12:40 PM
Posted to Ind. (7th Cir.) Decisions

Environment - VP Cheney's impact on the environment

The Washington Post has been running a 4-part series on the role of Vice President Cheney. Today's is Part 4, on the VP's influence on the environment. The Post description of today's story:

By combining unwavering ideological positions -- such as the priority of economic interests over protected fish -- with a deep practical knowledge of the federal bureaucracy, Cheney has made an indelible mark on the administration's approach to everything from air and water quality to the preservation of national parks and forests.

Posted by Marcia Oddi on June 27, 2007 11:53 AM
Posted to Environment

Not law but interesting - "Neuter Scooter rolls into town"

Who could resist a headline like that? And the "neuter scooter" is a great idea, that I hadn't heard of before. Read the story by Susan O'Leary in the NWI Times that begins:

They came in crates, humane traps and plastic storage bins with holes poked in the top. Twelve hours later, all of them would be leaving without something.

Posted by Marcia Oddi on June 27, 2007 11:26 AM
Posted to General News

Ind. Courts - "Gary attorney has been charged with trafficking with an inmate"

Ruth Ann Krause reports today in the Gary Post-Tribune, in a story that begins:

A Gary attorney has been charged with trafficking with an inmate, for allegedly delivering an envelope with contraband to a man who eventually was convicted of murder.

Carl C. Jones, 39, was charged in Lake Superior Court-County Division with the class A misdemeanor, which carries a maximum one-year sentence.

Jones is accused of sliding a manila envelope containing letters from family members, cigarettes and makeup to Jeffery Perez on Jan. 26 in the Lake County Jail's attorney-inmate room. Perez put his legal papers on top of the envelope and took it with him, the probable cause affidavit states.

Posted by Marcia Oddi on June 27, 2007 11:20 AM
Posted to Indiana Courts

Ind. Decisions - "Judges must justify felony sentences; case tests new Indiana law"

Niki Kelly of the Fort Wayne Journal Gazette writes today about yesterday's Supreme Court ruling in the case of Alexander J. Anglemyer v. State of Indiana (see ILB entry here). Some quotes:

The Indiana Supreme Court ruled unanimously Tuesday that judges sending felons to prison have to issue a sentencing statement that includes a reasonably detailed list of reasons for the sentence.

The decision came in the case of Alexander Anglemyer, a 20-year-old Kosciusko County man convicted of robbing and beating a pizza deliveryman in May 2005. * * *

The case was the first time the Indiana Supreme Court had the chance to weigh in on Indiana’s new sentencing laws since they were changed by the legislature in 2005.

Previously in Indiana, judges sentenced criminals by a guideline that provided a presumptive sentence but allowed the judge to add or subtract time for mitigating or aggravating circumstances.

For instance, someone convicted of robbery faced a presumptive sentence of 10 years to which 10 years could be added and four years could be subtracted.

But the U.S. Supreme Court – followed by the Indiana Supreme Court – ruled that any factors used to enhance a sentence have to be proven to a jury. That means judges can’t use additional information to add to the presumptive sentence without a separate jury proceeding.

To meet the new rules, lawmakers in 2005 passed Senate Bill 96, which removed presumptive sentences from Indiana’s system – leaving just the range of years for judges to choose from.

According to the law, a judge can impose any sentence “regardless of the presence or absence of aggravating circumstances or mitigating circumstances.”

The law also established the old presumptive sentence as a non-binding advisory guideline but gave far more discretion to the judge than in the old system.

The question before the court was whether judges are bound to provide any sentencing statement explaining the reasons behind a sentence, as three decades of court precedent have required.

Tuesday’s ruling reinforced the former practice, noting that sentencing statements help guard against arbitrary and capricious sentencing and provide a basis for appellate review.

Posted by Marcia Oddi on June 27, 2007 09:04 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Court upholds woman's arrest for shouting"

Yesterday's Court of Appeals decision in Latoya Blackman v. State of Indiana (ILB entry here - 3rd case) is the subject of a brief AP story this morning. Some quotes:

Free speech does not protect a woman from being prosecuted for disorderly conduct after she continued to shout at police officers who warned her to stop, the Indiana Court of Appeals ruled.

Latoya Blackman of Indianapolis shouted "This is unconstitutional" and various obscenities at the officers as they arrested her brother on drug charges in front of their home in May 2005, according to court records. Officers told her to stop yelling and leave, but she instead yelled even louder and a crowd began to gather.

The officers warned her she would be arrested if she did not leave and handcuffed her when she failed to comply. She was later convicted of disorderly conduct.

Blackman's attorney argued that the noise she caused wasn't unreasonable given the circumstances and that her shouts were protected speech under Indiana's constitution.

The three-judge panel disagreed Tuesday. "The facts before us plainly indicate that Blackman made unreasonable noise and continued to do so after being repeatedly asked to stop," Judge Carl Darden wrote in the 3-0 decision. * * *

In a separate concurring opinion, Judge James Kirsch said the ruling appeared to overturn a 1993 Supreme Court order that set aside the disorderly conduct conviction of a woman who was arrested after she shouted obscenities at police officers who were arresting another person.

Posted by Marcia Oddi on June 27, 2007 08:53 AM
Posted to Ind. App.Ct. Decisions

Tuesday, June 26, 2007

Ind. Decisions - Supreme Court issues three more today

In Carlos M. Jackson v. State of Indiana, a 15-page, 3-2 opinion, in a case that was argued Nov. 28, 2006, Justice Boehm writes for the majority:

We hold that a trial court may find a knowing and voluntary waiver of a defendant’s right to be present at his jury trial if (1) the defendant knew his trial date and (2) the defendant did not provide an adequate explanation for his absence from trial. We also hold that a trial court is not required to readvise a defendant of his right to counsel or the perils of self-representation when the trial court revokes a defendant’s attorney’s pro hac vice status if (1) the defendant was ad-vised of his right to have appointed counsel at his initial hearing and (2) the defendant had initially retained counsel and had made no indication to the trial court that he could not afford to hire another attorney or intended to proceed pro se. Finally, under these circumstances, a defendant’s intentional and inexcusable absence from trial can serve as a knowing, voluntary, and intelligent waiver of the right to counsel. * * *

Shepard, C.J., and Dickson, J., concur.
Rucker, J., dissents with separate opinion in which Sullivan, J., concurs: Because the defendant in this case did not knowingly and intelligently waive his right to counsel, I respectfully dissent. * * *

I agree that a trial court cannot “hunt down a defendant to admonish him about the dangers and disadvantages of self-representation.” Such an inquiry is quite obviously impossible when a defendant fails to present himself before the court. But one’s fugitive status is a separate wrong with its own consequences, and returned fugitives should be punished, if appropriate, for violations of court orders or statutes which compel their presence in court. See Ind. Code §§ 35-44-3-6; 34-47-3. It is not grounds for forfeiting the right to representation by counsel. For the foregoing reasons, reasons, I respectfully dissent and would reverse the judgment of the trial court.

InMark Clarke v. State of Indiana, a 12-page, 4-1 opinion, in a case argued Jan. 25, 2007, Justice Boehm writes for the majority:

We hold that a police officer who neither explicitly nor implicitly communicates that a person is not free to go about his or her business may ask questions of the person to investigate allegations of criminal activity without implicating the Fourth Amendment or requiring the advisement of rights under the Indiana Constitution. * * *

Conclusion We affirm the trial court’s denial of Clarke’s motion to suppress. We summarily affirm the Court of Appeals as to issues not addressed in this opinion. See Appellate Rule 58(A).

Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Rucker, J., dissents with separate opinion. [which concludes:] In this case the majority distinguishes between “custody” and “seizure” concluding that “Pirtle advisements” are required for the former, but not the latter. I see no principled distinction between the two. By whatever nomenclature, the key question to be asked is whether the person is entitled to disregard police questioning and walk away. If not, then the person must be informed of the right to consult with counsel about the possibility of consenting to a search. Otherwise no valid consent can be given. Indeed the primary authority on which the majority relies makes this very point. Discussing Jones, 655 N.E.2d at 56, the Court in Cooley v. State, 682 N.E.2d 1277, 1279 (Ind. 1997), recognized, “Had Jones refused to give the police permission to search, he would have been given two citations and been free to leave.” In this case Clarke had no such option. And because he was not given a Pirtle advisement any alleged consent was invalid as a matter of state law. Accordingly, I agree with the result reached by the Court of Appeals and would reverse the trial court’s denial of Clarke’s motion to suppress.

In Aaron Israel v. Indiana Department of Correction , an 8-page, 3-2 opinion, in which there was no oral argument, Justice Sullivan writes for the majority:

[Inmate] Israel responded by filing a small claims action against the DOC in the Small Claims D-vision of the LaPorte Superior Court. His argument was that the DOC’s withdrawal of funds from his trust account violated the terms of a written agreement he had with a prison counselor that purported to limit the amount the DOC could withdraw from his account. The small claims court decided the case against him.

Israel appealed. The DOC sought dismissal of the appeal on grounds that the small claims court did not have jurisdiction to review a disciplinary decision against Israel, citing this Court’s recent pronouncement in Blanck v. Indiana Department of Correction that “[f]or a quarter-century, our Court has held that DOC inmates have no common law, statutory, or federal constitutional right to review in state court DOC disciplinary decisions.” 829 N.E.2d 505, 507 (Ind. 2005). The Court of Appeals rejected the DOC’s jurisdictional argument, but decided the merits in the DOC’s favor. ... We grant Israel’s petition for transfer and hold that the trial court should have dismissed Israel’s lawsuit. * * *

Shepard, C.J., concurs and Rucker, J., concurs with separate opinion.
Boehm, J., dissents with separate opinion in which Dickson, J., concurs.

Rucker, Justice, concurring. In my view Blanck v. Ind. Dep’t of Corr., 829 N.E.2d 505 (Ind. 2005), was wrongly decided. Indeed I joined Justice Boehm’s concurring in result opinion for that reason. But Blanck, and the authority on which it rests, is now settled law, namely: the enforcement of prison disciplinary sanctions are not subject to judicial review. I therefore concur in the majority opinion in this case.

Boehm, J., dissenting. [in a 4-page opinion, which concludes:] The majority’s holding today extends Blanck. Even if related to discipline, a breach of contract claim is subject to judicial review and within the subject matter jurisdiction of state courts. I do not suggest there is merit to Israel’s claims. They may be subject to dismissal for failure to state a claim. They are, however, within the jurisdiction of the courts.

Posted by Marcia Oddi on June 26, 2007 03:36 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 17 NFP)

For publication opinions today (5):

In Putnamville Correctional Facility v. Robin Church, a 6-page opinion, Judge Sharpnack writes:

Putnamville Correctional Facility (Putnamville) appeals the Putnam Circuit Court’s judgment enforcing an Award of the Indiana Worker’s Compensation Board (the Board) in favor of Robin Church, pursuant to Ind. Code Ann. § 22-3-4-9(a) (West 2005).

Putnamville presents the following restated issues for review: 1. Did the circuit court have jurisdiction under I.C. § 22-3-4-6(a) to render judgment on the Award when Church provided five days notice to Putnamville before filing a certified copy of the Award with the court but did not obtain an order from the Board to file said Award with the court? 2. Did the trial court improperly modify or interpret the Award? We reverse and remand. * * *

[The court concludes that although it need not decide the second issue] "Therefore, without deciding whether a court has authority to interpret (as opposed to modify) an ambiguous Award or whether such interpretation is the exclusive authority of the Board, we simply caution Putnamville to more fully consider its position, which is clearly contrary to established case law.

Cathy Webb v. Terry Webb - "Appellant-Respondent, Cathy Webb (Mother), appeals the trial court’s Child Custody Modification Order awarding sole legal and physical custody over the minor children, T.W. and C.W, to Appellee-Petitioner, Terry Webb (Father). We affirm."

In Latoya Blackman v. State of Indiana , a 16-page, 3-0 opinion (including a separate concurring opinion), Judge Darden writes:

Issues. 1. Whether sufficient evidence existed to support Blackman’s conviction. 2. Whether Blackman’s conduct constituted political speech protected under the Indiana Constitution and, therefore, cannot be the basis for a charge of disorderly conduct. * * *

The right to speak is undeniably a right of paramount importance under our Constitution. That said however, individuals who have expressed opinions, even protected opinions, must quiet down thereafter to enable police officers to do their work. The fact that one is engaging in protected political speech does not obviate one’s responsibility to act in a civically responsible manner.

Police officers conducting a legitimate investigation must be able to perform their duties without unreasonable interruption. Johnson, 719 N.E.2d at 449. Under the facts of this case, we find that the State could have rationally concluded that where Blackman obstructed and interfered with the officers’ attempts to function as law enforcement officer, her conduct constituted an abuse of the right to speak and fell within the State’s police power. Accordingly, Blackman’s arrest for disorderly conduct did not violate Article 1, Section 9 of the Indiana Constitution.

Affirmed. MATHIAS, J., concurs. KIRSCH, J., concurs with separate opinion. [Here are the beginning and conclusion of Judge Kirsh's 3-page concurring opinion] I concur. I write separately only to note what I believe is a fundamental shift in Indiana’s constitutional jurisprudence. * * *

Without regard to whether J.D. is the death knell of Price and Indiana’s independent constitutional jurisprudence, Blackman’s speech here falls within that determined to be abusive by the Court in J.D. Accordingly, I concur in the majority’s decision.

Elliott D. Tyson v. State of Indiana - "Elliot Tyson appeals the post-conviction court’s denial of his petition for post-conviction relief. Tyson raises one issue, which we restate as whether the post-conviction court erred by summarily denying his petition for post-conviction relief. We affirm."

James A. Washburn v. State of Indiana - "Based on the foregoing, we conclude that the trial court properly denied Washburn’s Motion to Suppress evidence seized during the execution of a search warrant based on information obtained from a warrantless trash pull."

NFP civil opinions today (4):

David W. Brankle v. Kimberly K. Brankle (NFP) - "For our review, David raises several issues relating to his motions for visitation and the division of property following the granting of his wife’s petition for dissolution of marriage. Concluding the trial court did not abuse its discretion by denying the motions, we affirm."

North American Capital Corp./MBNA America Bank v. Kelly Hickman (NFP) - "Here, Hickman merely presented her own personal circumstances, together with a plea to the trial court to lower her garnishment. The record is devoid of any evidence establishing an extraordinary circumstance, let alone, a meritorious claim or defense, as required by T.R.60(B)(8). Due to Hickman’s failure to carry her burden of proof, we conclude that the trial court abused its discretion by granting her relief from the garnishment order. Therefore, we reverse the trial court’s Findings and Recommendations and remand for further proceedings in line with today’s holding. Conclusion. In light of the foregoing, we find that the trial court abused its discretion by setting aside its previous Order to garnish Hickman’s wages pursuant to T.R. 60(B)(8). Reversed and remanded."

Tamera L. Tebbe v. Leonard J. Tebbe (NFP) - This is a 38-page opinion. The statement of the case is: "Tamera L. Tebbe (“Wife”) challenges the trial court’s order regarding the division of the marital estate. Leonard J. Tebbe (“Husband”) cross-appeals the trial court’s order for the payment of Wife’s attorney fees and litigation expenses. We reverse and remand with instructions."

Involuntary Term. of Parent-Child Rel. of A.W., Rageing Warr v. Marion Co. Office of Family & Children, and Child Advocates (NFP) - Termination, affirmed.

NFP criminal opinions today (13):

David R. Jones v. State of Indiana (NFP)

William H. Duvall, III v. State of Indiana (NFP)

Antoinette Jenkins v. State of Indiana (NFP)

Mark Padgett v. State of Indiana (NFP)

Eric D. Smith v. State of Indiana (NFP)

Joseph McClimans v. State of Indiana (NFP)

Prince Deno McClendon v. State of Indiana (NFP)

Robert Warner v. State of Indiana (NFP)

Anngelic Leclair v. State of Indiana (NFP)

Edward A. Harper v. State of Indiana (NFP)

Casey Baker v. State of Indiana (NFP)

Michael A. Cozad v. State of Indiana (NFP)

Star Gentry v. State of Indiana (NFP)

Posted by Marcia Oddi on June 26, 2007 12:18 PM
Posted to Ind. App.Ct. Decisions