Thursday, October 04, 2007
Ind. Courts - Caseload of Jasper County Circuit Court judge continues to grow
Sherri Morrison, staff writer for the Kankakee Valley Post-News, has a Q & A today with Jasper County Circuit Court Judge John Potter, focusing on juvenile cases. Some quotes:
In 2003 there were 153 total juvenile cases seen by the court in Jasper County. In 2006, that number more than doubled to 354 juvenile cases. With Jasper County's population growing at a rapid rate, the caseload of Circuit Court Judge John Potter continues to increase also. With no facility in Jasper County to house juvenile offenders, the courts are working to come up with effective solutions to handle the growing problem.Q. What type of cases do you usually see in juvenile court?
A. Primarily two types. Welfare cases in which children are being taken away from their parents and delinquency cases which are kids in trouble. * * *Q. Is there some type of child advocate in the court system for these neglected or abused children?
A. We do not have a child advocate now but we are in the process budgeting a child advocate for next year. The state is required us to do so. The county pledged $12,000.00 which the state will match. The program is called CASA (Court appointed special advocate). These are volunteers who are trained to help these children.Q. Do you see many welfare cases where children are being neglected or abused in Jasper County?
A. There are approximately 60 children removed from their homes in Jasper County right now. That does not include children who have been placed with other family members such as grandparents, aunts, etc. * * *Q. What solutions to the rising caseload have you come up with?
A. What we have discovered is “if you're sweating and tired from working, you may not get in as much trouble.” The problem was we had 1000's of hours for juveniles to do community service with no place to send them.Q. What was the problem?
A. Businesses and municipalities were afraid of the liability and didn't have the manpower to supervise.Q. How did you resolve this issue?
A. We hired a college student, Joe Gudeman to coordinate juvenile community service hours with off-duty police and correctional officers to supervise these offenders. The off-duty officers were then paid with the probation user fees issued to the juvenile offenders. Gudeman exceeded our expectations and over 2000 community service hours were used by municipalities, parks, churches, Jasper County Hospital and cemeteries all over Jasper County. This was our first year doing this and we plan on doing it again next year.Q. What about those serious or repeat offenders?
A. Since we do not have a juvenile facility in Jasper County, we rent out bed space at Porter County Juvenile Detention Center and space in Muncie, Indiana which is a “military boot camp” type facility. There is also a boys' or girls' school which is, in fact, ran by the Indiana Department of Corrections for serious offenders.
Posted by Marcia Oddi on October 4, 2007 12:39 PM
Posted to Indiana Courts
Ind. Courts - Still more on: CASA partners with IRTA
Updating this ILB entry from Tuesday, Bryan Corbin of the Evansville Courier & Press reports today on the court system's the new partnership with the Indiana Retired Teachers Association. Some quotes:
A program started in Evansville years ago to have volunteers advocate in court for abused children has expanded throughout much of the state. With more court cases than volunteers to go around, however, the state is enlisting the help of retired teachers to serve as court-appointed special advocates for victimized children.Chief Justice Randall Shepard, an Evansville native, as well as state Rep. Dennis Avery, D-Evansville, and Gov. Mitch Daniels unveiled the new partnership with the Indiana Retired Teachers Association on Wednesday. The association is recruiting some of its 23,000 retired teachers — who donated a combined 1 million hours volunteering each of the past three years — to serve as child advocates in the Court Appointed Special Advocates or CASA program. * * *
In some counties, attorneys are appointed as guardians ad litem and paid an average of $50 an hour to represent the abused or neglected children. The court-appointed special advocate program instead uses volunteers who are trained to investigate the case and speak on the child's behalf in court, without pay. * * *
About two-thirds of counties now have CASA programs, Shepard said. Posey County — with approximately 20 cases of children under court intervention — is one that does not. Since the court does not use a CASA program, attorneys are appointed as guardians ad litem. Posey Circuit Court Judge James Redwine, who presides over such cases, was out of the office and unavailable Wednesday, his staff said.
Posted by Marcia Oddi on October 4, 2007 07:58 AM
Posted to Indiana Courts
Ind. Decisions - Still more on: U.S. Supreme Court to hear Lake County definition of "money laundering" case
Updating this ILB entry re yesterday's oral arguments before the SCOTUS in the case of United States v. Santos. the Indianapolis Star today has a feature by Jon Murray on the Indianapolis attorney, Todd Vare of Barnes & Thornburg, who argued on behalf of Mr. Santos, headlined "Supreme Court 'intimidating,' but he was ready." Mr. Vare, a patent and IP specialist, handled the case pro bono through a federal court system program, according to the story.
Posted by Marcia Oddi on October 4, 2007 07:49 AM
Posted to Ind. (7th Cir.) Decisions
Wednesday, October 03, 2007
Ind. Law - Golf cart use on Bloomfield streets draws town council discussion
In another of the ILB's long list of stories about the legality of golf carts on streets and highways, Timberly Ferree reported Tuesday in the Greene County Daily World:
Discussion turned to the pros and cons of legalizing golf carts on the streets of Bloomfield during its town council meeting on Tuesday.The topic was brought up by a Bloomfield resident during the meeting's public participation forum.
Town Council President Eric Harrah explained that currently mopeds and scooters can be legally used for transportation within the town limits, but golf carts and four-wheelers are prohibited.
"Probably by not having golf carts we could possibly be penalizing responsible adults because kids who are 14-years old can ride around on a scooter anyway," Harrah explained.
Town Marshal Ken Tharp said that the current town ordinance would allow him to impound a golf cart that was driven within the town limits.
According to state statute, golf carts are considered recreational off-the-road vehicles, Tharp noted.
In the past, Harrah stressed his main concern about legalizing golf carts had a lot to do with non-licensed kids driving them.
The same resident also inquired whether or not golf carts could be driven in the upcoming Apple Festival Parade--which is scheduled for Sunday.
Former Town Marshal Bob Richardson joined the conversation and said, "We've had four-wheelers (in the parade) before."
Tharp then explained, "I think the parade is a special event in town and it would be kind of overlooked…if the Apple Festival approved you to be in the parade then you can be in the parade."
Harrah explained, "I see both sides. I was mostly against it in the past…but only looking at bad things that could happen…"
Council Member Gary Swinney agreed with Harrah and explained that the council's past decision to not allow golf carts on the streets was based entirely upon the cons.
The decision was originally made when Swinney, Harrah and the late Russell Basye made up the council, Swinney noted.
Tharp also stressed that allowing golf carts to be legally driven in town would call for writing a whole new book of codes for violations.
Another con noted by Tharp was possible insurance rate increases.
"I'm looking at the big picture," Tharp added.
Harrah also requested some feedback from those at the meeting.
He asked if those in favor of passing a golf cart ordinance would be willing to pay a registration fee and if so what fee would fee feasible.
The majority of those at the meeting agreed that paying an annual fee would be acceptable. Some suggested that the fee be as low as $25.
Harrah stressed that some towns require an annual fee as high as $140 for golf cart registration.
Some towns also require an annual safety inspection of all golf carts, he said.
No action was taken on the golf cart discussion.
Harrah as well as those in attendance were happy with the matter being brought to the table.
"If you do it (legalize golf carts) do it the right way," Harrah stressed--noting that the discussion was a great opportunity to hear from the public on the idea.
Posted by Marcia Oddi on October 3, 2007 06:13 PM
Posted to Indiana Law
Ind. Courts - Jefferson Circuit Court judge insists on complaints being filed before approving IDEM agreed order
Peggy Vlerebome reports in The Madison Courier, under the heading "IDEM suit against city merely a technicality," that the Indiana Department of Environment has entered into agreed orders with cities throughout the state whereby the municipalities agree to embark on programs to remedy combined sewer overflows (CSOs). When they got to Madison, however:
[T]he judge who had to accept the agreed orders [who the story does not identify by name] said there couldn't be agreed orders without complaints being filed.Confused? Here is more from the story:So last week the state attorney general's office, on behalf of IDEM, filed 23 complaints across the state, including in Jefferson Circuit Court against Madison. [Emphasis added by ILB]
City officials had not received a copy of a complaint or heard about it until a reporter asked about it at city hall Tuesday.
The mayor called the attorney general's office and left a message, and later the city received a call saying that Madison had not done anything wrong.
That was the word, too, from IDEM.
"It's one of those weird things," IDEM spokesman Steve Polston said about the complaint. "It doesn't signify that anyone's done anything wrong."
The Indiana Department of Environmental Management filed a complaint Thursday in Jefferson Circuit Court against the City of Madison.But it turned out that the city hadn't done anything wrong.
The complaint said the city continues to pollute the Ohio River and three creeks because of combined sewer overflows. In wet weather, sewage gets into waterways because Madison has an antiquated system whereby sewage and storm runoff travel in the same pipes.
The city has a long-term plan for separating the runoff from the sewage that will take more than five years to complete.
As part of the process for IDEM and the city to agree on what will be done and when, IDEM and the city signed an agreed order for IDEM to file in court.
Posted by Marcia Oddi on October 3, 2007 05:43 PM
Posted to Environment | Ind. Trial Ct. Decisions
Courts - Still more on: Outcome of Indiana cert petitions to SCOTUS
Updating this ILB entry from yesterday on the two Indiana cases that failed to be granted cert last Monday, Gilles v. Blanchard, and Mayer v. Monroe County, here are two news stories from yesterday on the cases:
From the Chronicle of Higher Education, a story headed "Supreme Court Passes Up Case of Preacher's Restricted Access to Campus."
From the Fort Wayne Journal Gazette, a story by Sylvia Smith headed "Justices let stand firing of teacher."
Posted by Marcia Oddi on October 3, 2007 04:30 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)
For publication opinions today (2):
In Michael Owen Proctor v. State of Indiana , a 6-page opinion, Judge Bradford writes:
Upon appeal, Proctor claims the trial court erred by admitting evidence in violation of his Sixth Amendment right to confrontation pursuant to Crawford v. Washington. * * *In C.L.M. v. State of Indiana , a 9-page opinion, Judge Vaidik writes:As the United States Supreme Court held in United States v. Owens, 484 U.S. 554, 558 (1988), as long as the declarant testifies, the Confrontation Clause is satisfied, even if the declarant is unable to recall the events in question. * * *
As Sheila was present at trial and responded willingly to questions, we find no Crawford violation in the admission of her taped statement in State’s Exhibit 3. Accordingly, we conclude that Proctor’s challenge to his convictions on the basis of Crawford is without merit.
C.L.M., who was nine years old at the relevant time, appeals his adjudication as a delinquent child for committing what would have constituted Class C felony child molesting if committed by an adult for touching or fondling his three-year-old half-sister with intent to arouse or satisfy his sexual desires. Specifically, he argues that the trial court erred in admitting statements he made to a police officer during an interview at a child advocacy center into evidence because he was in custody and not given a Miranda warning. Finding that the trial court abused its discretion in admitting C.L.M.’s statements into evidence because he was in custody at the time and therefore should have been given a Miranda warning and that the State has not shown that the admission of C.L.M.’s statements did not contribute to his adjudication, we reverse the trial court.NFP civil opinions today (1):
Kenray Association, Inc., et al. v. Hoosier Insurance Company (NFP) - "The claims brought by Kenray’s customer’s fall within the impaired property exclusion to coverage under Hoosier’s claims, and the “sudden and accidental” physical injury exception to this exclusion is inapplicable. Because we conclude that the claims fit within this exception, we need not consider whether they also fit within other exceptions to coverage. The trial court therefore did not err in granting summary judgment in favor of Hoosier. Affirmed."
NFP criminal opinions today (9):
Dustin Burkhardt v. State of Indiana (NFP)
Shaka Shakur v. State of Indiana (NFP)
James C. Murphy v. State of Indiana (NFP)
Elijah Gibson v. State of Indiana (NFP)
Conway Jefferson v. State of Indiana (NFP)
Jesus Lozano Rodriguez v. State of Indiana (NFP)
Laronda Dunbar v. State of Indiana (NFP)
Courtney Hall v. State of Indiana (NFP)
David Smith v. State of Indiana (NFP)
Posted by Marcia Oddi on October 3, 2007 12:25 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Still more on: U.S. Supreme Court to hear Lake County definition of "money laundering" case
Updating this ILB entry from April 24th, the SCOTUS is hearing oral arguments this morning in the case of United States v. Santos. According to this entry in SCOTUS Blog:
At 11 a.m., the Court is scheduled to hear argument in United States v. Santos (06-1005), asking whether the term “proceeds” in the principal federal money laundering statute refers to total receipts from illegal activity or just the profits. Matthew D. Roberts of the Solicitor General’s office will argue for the petitioner, and Todd G. Vare of Indianapolis, Ind., will argue for the respondent. For a preview of the argument, click here. (SCOTUSwiki)
Posted by Marcia Oddi on October 3, 2007 11:41 AM
Posted to Ind. (7th Cir.) Decisions
Courts - Former NY Court's highest judge regains law license
"Sol Wachtler Got His Law License Back" is the headline to this post by Peter Lattman in the WSJ Blog, including links to other stories.
The ILB has covered this story over the years; check here for earlier entries.
Posted by Marcia Oddi on October 3, 2007 11:32 AM
Posted to Courts in general
Ind. Decisions - "Fired worker blames porn on malware" (malicious software)
A September 26th ruling by Federal District Judge Sarah Evans Barker, in the case of David Farr v. St. Francis Hospital (access the ruling via the ILB here), is the subject of a story today by Declan McCullagh , a writer for CNET News, published both by CNET and here in the New York Times technology section.
According to the opinion, "Plaintiff, David Farr (“Farr”), brought suit against St. Francis, his former employer, after his employment was terminated when St. Francis allegedly discovered pornography on a workplace computer used by Farr." From p. 3 of the opinion:
An expert in computer science retained by Farr has analyzed the material provided by St. Francis and concluded that the pornography was not intentionally downloaded onto the respiratory therapists’ computer; rather, the pornography was retrieved and saved by a computer virus without the computer operator’s knowledge.This is an employment law case and the decision is based on Indiana law. The news story adds context. Both the opinion and the coverage are well worth reading. Judge Barker's opinion concludes:
Despite the reiteration of the narrowness of the public policy exception by the Indiana Supreme Court, Plaintiff implores us to extend the public policy exception to allow a claim for wrongful discharge when an employee is fired out of expediency to cover up an alleged violation of law by the employer. To bolster his argument, Plaintiff claims that his termination contravenes Plaintiff’s “right to live his life free of specious and knowingly false accusations that were designed to hide his employer’s wrongs.” Although it is likely that most people would like to live a life free from specious and false accusations, Plaintiff fails to indicate how such a freedom is clearly secured by statute (specifically, HIPAA). As such, Plaintiff’s proposed extension of Indiana law fails to meet even the minimum requirements of the public policy exception: that termination contravene a clear statutory right or duty. “General expression of public policy do not support new exceptions to the employment-at-will doctrine,” Montgomery, 849 N.E.2d at 1128; accordingly, we decline to extend the public policy exception here and Rule 12(b)(6) dismissal is appropriate.
Posted by Marcia Oddi on October 3, 2007 10:59 AM
Posted to Ind Fed D.Ct. Decisions
Ind. Law - Gary ordinance to prohibit use of cell phones while driving
Jon Seidel writes today in the Gary Post-Tribune:
GARY -- A law prohibiting drivers from using their cell phones while behind the wheel on city streets was approved Tuesday night by the Gary City Council.Originally introduced three months ago, it is the first such law in Northwest Indiana, and it is scheduled to go into effect Jan. 1, 2008. * * *
Under this new ordinance, drivers will be prohibited from using cell phones unless they are using a "hands-free" device, calling 911 or sitting in a parked car.
The law, based on Chicago's ban on driving and dialing, does not apply to police officers or emergency vehicle drivers.
Although it applies to "any street or highway within the city limits," an Indiana State Police spokesman said in July that troopers do not enforce local ordinances while patrolling interstates that weave through Gary.
Those include Interstates 65, 80/94 and the Indiana Toll Road.
Posted by Marcia Oddi on October 3, 2007 09:56 AM
Posted to Indiana Law
Ind. Courts - East Chicago Courthouse to stay, newest judge promises
Teresa Auch reports today in the Gary Post-Tribune:
Calvin Hawkins, newly sworn in as a Lake County Superior judge, already has plans for his office, including keeping it in East Chicago.See an earlier, Sept. 17th ILB on the East Chicago Courthouse here."I'll do whatever it takes," he promised the audience Tuesday at his swearing-in.
Hawkins was appointed in August by Gov. Mitch Daniels, who came to the ceremony.
The East Chicago courthouse has the smallest caseload of all the county courthouses, and there has been recent talk of closing the office.
But not only did Hawkins throw his support behind the courthouse, he called for his position to be fully committed to it, instead of also going to the Gary and Hammond courthouses.
"If the judge is not there, the lawyers and people will go elsewhere," he said.
The new judge said he would also support allowing lawyers to file their cases with specific judges, instead of the current random filing system.
Posted by Marcia Oddi on October 3, 2007 09:52 AM
Posted to Indiana Courts
Environment - Adinistrative hearing in Indy on BP air variance challenge
The second half of this ILB entry from August 25th includes this quote from a Gary Post-Tribune story by Gitte Laasby:
BP and the Indiana Department of Environmental Management are facing new opposition against BP's air variance.In this Oct. 2 P-T story, Laasby reports:The City of Chicago, the Illinois Attorney General, the Natural Resources Defense Council and the Environmental Law and Policy Center filed a petition Friday for administrative review of the air variance IDEM Commissioner Tom Easterly granted BP on July 5. * * *
DEM argued that the Office of Environmental Adjudication (OEA) should reject Illinois' petition because it was incomplete.
Illinois countered that rejecting the petition would prevent a "meaningful public review of IDEM's decision."
An OEA environmental judge is expected to respond in the coming weeks.
An environmental law judge plans to decide at the end of October or early November whether an Illinois appeal of BP's air variance will move forward.Mary Davidsen, chief environmental law judge with the Office of Environmental Adjudication (OEA) heard oral arguments in Indianapolis on Monday from BP, the Indiana Department of Environmental Management and a group of Illinois petitioners, including the Illinois Attorney General, the city of Chicago, the Natural Resources Defense Council and the Environmental Law and Policy Center.
The Illinois petitioners want the OEA to review IDEM's decision in July to grant BP the variance, which allows the company to continue to emit the same amount of tiny particles into the air rather than reducing emissions by about half.
IDEM and BP have argued that the Illinois parties submitted an incomplete petition, and that a judge should not have agreed to hear the case.
Posted by Marcia Oddi on October 3, 2007 07:33 AM
Posted to Environment
Ind. Courts - Still more on: "A judge has ordered a defendant to 'return to the South Bend Tribune and admit that he lied' to a reporter."
Updating this ILB entry from yesterday, here is Jeff Parrott of the South Bend Tribune's report on the incident in the paper's newsroom:
As a judge recently advised him to do, a man charged with having sex with a 15-year-old girl walked into The Tribune newsroom Monday and said he lied to a Tribune reporter when he said he had never touched the girl in a sexual manner. * * *Legal experts contacted for comment Monday said they had never before seen such a case.
"No, the whole thing is strange," said Craig Bradley, professor at the Indiana University School of Law in Bloomington. "It kind of puts (The Tribune) in an awkward position. You want to report the news; you don't want to be the news."
Steve Key, legal counsel for the Hoosier State Press Association, agreed.
"I've been with HSPA since 1993 and I don't know that I've run across a situation where a criminal defendant has come into a newsroom and retracted his story that claimed his innocence," Key said. "I would say that's very rare."
Bradley noted that the U.S. Supreme Court, in a 1970 ruling, held that a defendant may plead guilty to a crime while professing their innocence. Such a plea, known as an "Alford plea," is allowed in federal courts and in many states, including the four that border Indiana.
But Indiana has not allowed Alford pleas since a state Supreme Court ruling in 1953.
Sheneman was initially charged with sexual misconduct with a minor as a Class A felony, which involves intercourse. Under the plea agreement, he would avoid prison time in exchange for testifying against Tyrone Vaughn, a former tenant of Sheneman's who has been charged with sending the girl to Sheneman.
Frese has yet to act on Sheneman's plea agreement and has said he won't do so until after Sheneman testifies against Vaughn. Sheneman is due to appear before Frese again on Oct. 8.
After Sheneman read his brief statement to The Tribune on Monday, McLaughlin said he felt his client had complied with Frese's order, and neither he nor Sheneman would comment further.
A Tribune editor then told Sheneman that if he wanted to talk about the case in the future, he knew how to contact the newspaper.
"It gets me in trouble, because -- " Sheneman started, before his attorney gestured to his client to stop talking.
Posted by Marcia Oddi on October 3, 2007 07:23 AM
Posted to Indiana Courts
Ind. Decisions - "Seventh Expands Terry Frisks"
Robert Loblaw of Decision of the Day Blog reports on yesterday's 7th Circuit opinion in the Illinois case of U.S. v. Barnett.
Posted by Marcia Oddi on October 3, 2007 07:00 AM
Posted to Ind. (7th Cir.) Decisions
Tuesday, October 02, 2007
Courts - More on: Outcome of Indiana cert petitions to SCOTUS
In this ILB entry from Sept. 25, and this ILB entry from Sept. 22, background was given on three 7th Circuit opinions in Indiana cases that were on the list of cases to be considered for cert at the conference of the SCOTUS on Monday, Sept. 24th:
- Gilles v. Blanchard, et al., a case involving religious speech on a public university campus - Vincennes Unniversity.
- Mayer, Deborah v. Monroe County - "Honk for peace" case
- Crawford v. Marion County Election Board/Democtratic Party v. Rokita - voter ID case
This SCOTUS Blog entry states that:
Three cases that were slated for consideration at last Monday’s conference have been re-listed for the upcoming conference on Friday, October 5.But neither the Vincennes University case nor the "Honk for Peace" case are among them. Instead, both cases have now been formally denied Supreme Court review, meaning the 7th Circuit's rulings stand.
Posted by Marcia Oddi on October 2, 2007 04:55 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Courts - More on: CASA partners with IRTA
Updating this ILB entry from Sept. 30th, a "media advisory" on the main Indiana Courts page today announces:
The Indiana Retired Teachers Association has chosen the Indiana Supreme Court’s Guardian Ad Litem/Court Appointed Special Advocate program as its members’ special volunteer project. They will link IRTA members across the state with volunteer opportunities with GAL/CASA. The IRTA has 23,000 members. Indiana law requires the appointment of a guardian ad litem or court appointed special advocate in child abuse and neglect cases so one party is focused exclusively on the child.A "Launch of new partnership between the Indiana Supreme Court’s Guardian Ad Litem/Court Appointed Special Advocate Program and the Indiana Retired Teachers Association that will benefit abused/neglected children across Indiana." will occur at 10 AM Wed., Oct. 3, 2007 in the Supreme Court Courtroom and will be webcast live.
Posted by Marcia Oddi on October 2, 2007 01:47 PM
Posted to Indiana Courts
Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)
For publication opinions today (1):
In Nathan D. Feeney v. State of Indiana , a 9-page opinion, Judge Vaidik writes:
Nathan Feeney (“Feeney”) appeals his cumulative forty-year sentence for his convictions on ten counts of burglary as a Class B felony, which consists of four consecutive and six concurrent ten-year sentences. He contends that the sentence is inappropriate in light of the nature of his offenses and his character under Indiana Appellate Rule 7(B). We agree and therefore revise Feeney’s sentence to fourteen years, with ten years executed in the Indiana Department of Correction, two years served with Tippecanoe County Community Corrections, and two years on supervised probation. * * *NFP civil opinions today (4):Of greater concern to us is Feeney’s young age and complete lack of juvenile delinquency adjudications and adult criminal convictions. * * * Feeney is certainly a young man in need of reformation, but a forty-year sentence is unduly harsh under the circumstances. Even if Feeney were to behave himself while incarcerated, he could still be in prison well into his late thirties, where, as his counsel states, he may very well end up under the tutelage of experienced criminals. We therefore find it appropriate to revise Feeney’s sentence to fourteen years, with ten years executed in the Indiana Department of Correction, two years served with Tippecanoe County Community Corrections, and two years on supervised probation. Reversed.
ROBB J., concurs.
SULLIVAN, Sr. J., concurs with separate opinion. [which states in part] I do however agree that the court did not use a free-standing “additional” aggravator as the basis for imposing consecutive sentences. The court utilized the “sheer number of burglaries” both as an aggravating circumstance in its balancing process and then re-used the same aggravator to impose consecutive sentences.
Tracy Denny v. Donald Meade (NFP) - "Where injury to the property is permanent, the appropriate measure of damages is the difference between the fair market value of the property prior to and after the injury. Id. As a general rule, permanent injury occurs when the cost of restoration of the property to its pre-injury condition exceeds the market value of the real estate prior to injury. Neal v. Bullock, 538 N.E.2d 308, 309 (Ind. Ct. App. 1989). A temporary injury is one which is not defined as permanent. Id. In cases where the injury is temporary or repairable, the measure of damages is the cost of repair. Warrick County v. Waste Management of Evansville, 732 N.E.2d 1255, 1258 (Ind. Ct. App. 2000). * * *
"We reverse and remand with instructions that the trial court grant Denny’s request for a new hearing on damages. In this new hearing, the parties may present evidence of loss of use, restoration, and any other damages occasioned by the continuing nature of Denny’s nuisance."
Quail Run Associates v. B. Steve Hancher (NFP) - "Respondent/Appellant Quail Run Associates Limited Partnership (“Quail Run”) appeals from the Indiana Civil Rights Commission’s (“Commission”) decision in favor of Complainant/Appellee B. Steve Hancher (“Hancher”). We reverse and remand with instructions."
In Re The Adoption of A.S. and O.S.; Scott Spencer v. Jeromy Hileman (NFP) - "Scott Spencer (“Father”) appeals the trial court’s order granting the petitions for adoption filed by Jeromy Hileman (“Stepfather”). We reverse."
In Christine and Lloyd Overton v. Marshall Grillo, M.D. (NFP), a 12-page opinion, Judge Darden writes:
Christine Overton (“Christine”) and Lloyd Overton, individually and as husband and wife (collectively, “Overton”), appeal the trial court’s order granting the motion for summary judgment of Marshall Grillo, D.O., against whom they brought an action alleging that Dr. Grillo had negligently failed to detect the presence of a cancerous lesion in Christine’s right breast when he reviewed a film of her bilateral mammography. We reverse.NFP criminal opinions today (7):Issue. Whether the trial court erred when it found that the two-year statute of limitations barred Overton's claim and, therefore, granted Dr. Grillo’s motion for summary judgment. * * *
Thus, the question remains: on October 2, 2000, did Christine have “enough information that would lead a reasonably diligent person” to discover the existence of malpractice?
Based upon the evidence designated to the trial court, we find that whether the fact of Christine’s diagnosis in October of 2000, without more, was knowledge sufficient to lead a reasonably diligent person to discover there had been malpractice by Dr. Grillo is a question of disputed fact. Therefore, the trial court erred in granting Dr. Grillo’s motion for summary judgment based upon his statute of limitations defense. Reversed.
BAKER, C.J., concurs.
ROBB, J., concurs in result with separate opinion. [which concludes] I do not believe that we should place the burden of medical knowledge on the patient, but rather on the trained medical professionals on whom we should be able to rely. Therefore, I would hold as a matter of law that Christine did not discover the alleged malpractice until more than two years after it occurred and reverse summary judgment on that basis.
Dywan Trelane Masterson v. State of Indiana (NFP)
Lewis Jones v. State of Indiana (NFP)
Stephen L. Herron v. State of Indiana (NFP)
Clifford A. Warner v. State of Indiana (NFP)
Richard S. Oldfield, Jr. v. State of Indiana (NFP)
Mitchell Lyster v. State of Indiana (NFP)
Tammy Jackson v. State of Indiana (NFP)
Posted by Marcia Oddi on October 2, 2007 01:17 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "Hawkins to be sworn in as judge in Lake County civil court"
The Huntington County Herald-Press reports:
A 1967 Huntington College graduate will be sworn in Tuesday as a judge in the Civil Division of the Lake County Superior Court.Calvin Hawkins, a resident of Gary, will succeed Judge Robert A. Pete, who died on March 6.
The ceremony will take place at 2:30 p.m. in the East Chicago Courthouse.
Huntington University President Dr. G. Blair Dowden will offer greetings, while Gov. Mitch Daniels will officiate the ceremony.
In addition to his undergraduate degree from Huntington, Hawkins earned a law degree from Howard University and a master of divinity degree from Wesley Theological Seminary. * * *
Hawkins has spent his life as a private attorney in Gary, specializing in civil and church litigation, bankruptcy law, probate and family law. He is also a member of the Gary Police Civil Service Commission.
Posted by Marcia Oddi on October 2, 2007 12:09 PM
Posted to Indiana Courts
Ind. Courts - Elkhart Superior Court judge won't seek reelection
The Elkhart Truth reports today (registration required):
James Rieckhoff, longtime judge of Elkhart Superior Court No. 5, won't seek re-election next year, paving the way for a new face in the local judiciary."I still have the interest, the energy and the enthusiasm to continue serving," he said Monday in a press release. "But I would like to spend more time with my family members and to engage in some additional non-judicial activities."
Rieckhoff, a Republican, started his career as judge on Feb. 22, 1982, after Gov. Robert Orr appointed him to the post. He has been re-elected four times since.
Though the election to fill his slot isn't until next year, Rieckhoff, in making Monday's announcement, said he wanted to give would-be candidates as much time as possible to prepare their campaigns. Superior Court No. 5 handles both criminal and civil cases.
Posted by Marcia Oddi on October 2, 2007 12:05 PM
Posted to Indiana Courts
Courts - "Judicial mandate not popular device"
Who knew?
"Judicial mandate not popular device" is the headline to an editorial today in the Goshen News:
Mention a judicial mandate to a county council member and it is guaranteed to cause an increase in blood pressure.For more on the Supreme Court's decision in the Montgomery Conty mandate case, start with this ILB entry from Sept. 28th.A judicial mandate ordering pay hikes for court employees in Montgomery County was recently upheld by the Indiana Supreme Court, which again confirms the legality of the action.
But that doesn’t make it any more palatable for other county officials. Just because a judge can issue a mandate doesn’t mean he should do it.
Consider the Montgomery County case. The judges said they were losing staff to higher-paying jobs, but county officials said they couldn’t afford the raises. The County Council had cut $1.2 million from the budget.
Yet the judicial power of the state reaches from the Supreme Court at the state level all the way to the courts of general jurisdiction at the local level. So even though staffers who work for the courts are considered county employees, their pay can’t be controlled by the county council. * * *
A judicial mandate is a device that should be used sparingly, if at all. If a need is compelling, judges should be able to draw on their background of advocacy to persuade county officials to go along with the request.
Posted by Marcia Oddi on October 2, 2007 07:46 AM
Posted to Indiana Courts
Ind. Courts - More on: "A judge has ordered a defendant to 'return to the South Bend Tribune and admit that he lied' to a reporter."
Updating this ILB entry from Sept. 13th, an AP story today reports:
A man walked into the newsroom of the South Bend Tribune under a court order today and admitted lying to a reporter when he denied having sexual contact with a 15-year-old girl.Michael P. Sheneman, 56, pleaded guilty on June 4 to fondling the girl but denied the charge in an interview with a Tribune reporter for a story two weeks later.
St. Joseph Superior Judge Jerome Frese chastised Sheneman during a hearing last month, telling him that his conflicting stories had cast the criminal justice system in a bad light and ordering him to return to the newspaper to admit that he had lied.
Posted by Marcia Oddi on October 2, 2007 07:35 AM
Posted to Indiana Courts
Ind. Courts - "Donors wanted for $500,000 decorative Randolph County Courthouse roof"
Joe Leiker reports today in the Muncie Star-Press about the Randolph County Courthouse, until recently slated for demolition. Some quotes:
WINCHESTER — More than 50 years ago, the clock tower and decorative mansard roof were ripped off the top of the Randolph County Courthouse.To some, it was one of the biggest mistakes of the century, a mistake preservationists didn’t want repeated with the demolition of the entire building.
The courthouse now is safe, and plans for renovations and an expansion are ongoing. With two historic-minded members leading the board of county commissioners, Randolph County now might be on its way to correcting the roof destruction that took place in 1954.
On Monday, commissioners took their first look at two drawings of replacement decorative roofs. One is a bit more detailed than the other, but both feature mansard roofs and a tall clock to be built on top of the tower, which will hold a new elevator.
And though Commissioners Dave Lenkensdofer and Kathy Beumer both expressed their delight with the drawings, that doesn’t change the fact the county has no intention of paying for the roof and clock tower. (The third member of the commission, Ron Chalfant, was absent Monday.) * * *
A committee of residents — including many who spearheaded the popular nearly naked Courthouse Girls calendars of 2006 and 2007 — is working to raise money to pay for the decorative elements. Larry Francer of Farmland, the man who led the calendar effort, asked commissioners Monday for permission to hold a fund-raiser later this month in the former county home.
Ron Ross, of the engineering and architectural firm Martin Riley, estimated those roof details would cost about $500,000.
That price is on top of the $7 million estimate for the rest of the work at the courthouse, which includes a two-story annex to be built on the south side of the existing building.
Posted by Marcia Oddi on October 2, 2007 07:28 AM
Posted to Indiana Courts
Ind. Courts - "Timothy M. Morrison begins serving as acting U.S. state's attorney for the Southern District of Indiana this week"
Kate Braser's report today in the Evansville Courier & Press continues:
On Monday, the Bloomington, Ind., resident stepped into the role, taking over as the federal district's chief law enforcement officer.His appointment comes in the wake of an announcement by former U.S. States Attorney Susan Brooks, who said last month she was leaving the Southern District of Indiana position after nearly six years to serve a dual role as general counsel and vice president of workforce development at Ivy Tech.
Morrison, 58, will oversee federal law enforcement for the state's southern 60 counties. He will be in charge of a staff of 30 lawyers and another 40 professionals.
He has served as the First Assistant United States Attorney for the Southern District of Indiana for the past 19 years. During that time, he has served twice before as interim U.S. Attorney. * * *
Morrison said it is unlikely Bush will appoint a U.S. Attorney for the district before his term expires.
According to federal guidelines, Morrison became acting U.S. Attorney after Brooks left because he was second in command. Morrison said he can serve in this role for 210 days. After that period, the Department of Justice can appoint an interim U.S. Attorney to serve for 120 days. After the 120 days, district court judges can select a replacement until the president appoints a new one. * * *
Morrison is a 1974 graduate of the Indiana University School of Law in Bloomington and previously worked as a supervising deputy prosecuting attorney in both Marion and Monroe counties, serving as chief deputy in Monroe County between 1975 and 1981.
Posted by Marcia Oddi on October 2, 2007 07:23 AM
Posted to Indiana Courts
Monday, October 01, 2007
Courts - Cameras in the courtroom
Definitely worth watching, the 2 hour and 30 minute U.S. House Judiciary Committee Hearing on Cameras in Federal Courts, via C-SPAN, which took place 9/27/07. Much mention is made of the state courts' having figured out how to successfully allow cameras in their trial courts in nearly all states, while the federal courts lag behind. Right now it is listed on this C-SPAN page, under "Recent Programs."
Posted by Marcia Oddi on October 1, 2007 02:30 PM
Posted to Courts in general
Courts - SCOTUS declines to hear challenge to Zyprexa patent
Updating this Dec. 27, 2006 ILB entry, headed "Lilly wins major Zyprexa patent case," (and including a link to the United States Court of Appeals for the Federal Circuit 23-page opinion in the case of Eli Lilly v. Zenith Goldline Pharmaceuticals), the Indianapolis Star's Maureen Groppe reports today that:
The Supreme Court has declined to hear a patent challenge to Zyprexa, the world's top selling schizophrenia drug and the top revenue-generating drug of Eli Lilly and Co.See also this ILB entry from Jan. 2, 2007.The court without comment Monday let stand a federal appeals court ruling that Lilly's patent is valid.
Posted by Marcia Oddi on October 1, 2007 02:20 PM
Posted to Indiana Decisions
Courts - "A guide to key cases on the Supreme Court's 2007-2008 docket"
From the Washington Post, a very nice "A guide to key cases on the Supreme Court's 2007-2008 docket" that begins with the Indiana voter ID case.
Posted by Marcia Oddi on October 1, 2007 02:15 PM
Posted to Courts in general
Ind. Decisions - 7th Circuit decides one Indiana case today
In Hunt Construction v. Allianz Global Risks (SD Ind., Judge Tinder), a 13-page opinion by Judge Poser, the trial court is reversed. Judge Posner:
Hunt, a construction company, brought this diversity suit governed by Michigan law against the Allianz insurance company, and appeals from the grant of summary judgment in favor of Allianz. The district judge’s ground was that Michigan law reads into the insurance policy on which Hunt’s suit is based a oneyear statute of limitations. Hunt contends that the suit is governed by the six-year statute of limitations applicable to contract actions for which no other limitations period is specified. If the longer statute of limitations applies, the suit is timely and the decision of the district court must be reversed. * * *The judgment is reversed and the case remanded for further proceedings consistent with this opinion.
Posted by Marcia Oddi on October 1, 2007 01:09 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - "Gary gun liability case in court today"
Patrick Guinane of the NWI Times reports today:
The Indiana Court of Appeals will hear arguments this morning in the city of Gary's eight-year battle to hold gunmakers responsible for violence wrought by their products.[For more, scroll down to the next ILB entry.]Gary, led by then-Mayor Scott King, was among dozens of U.S. cities to file lawsuits against firearm manufacturers and gun dealers in the late 1990s.
The city launched the suit after an undercover investigation in which police officers claiming to be convicted felons were allowed to purchase numerous handguns and ammunition. Gary's suit accused gunmakers of negligently designing and distributing their products and creating a public nuisance in Gary by failing to prevent criminals from obtaining and misusing handguns.
A Lake County judge dismissed the case in 2001. The state Court of Appeals reinstated the nuisance claim a year later, but ultimately ruled against the city. Gary found a more receptive audience with the Indiana Supreme Court, which in 2003 ruled the lawsuit could proceed.
Then the legislative branch got involved. In 2005, Congress approved and President Bush signed the Protection of Lawful Commerce in Arms Act, which shields firearm dealers and manufacturers from being held liable for crimes committed with their products.
A Lake County judge subsequently ruled the new federal law wiped out Gary's claim, but declared the law itself unconstitutional, ruling it infringed on due process rights, violated the separation of powers clause and unfairly applied retroactively.
"That's the only judge in the nation, so far, that has ruled in a case where the (new law) was asserted," said Lawrence Keane, a spokesman for the firearms industry. "Other courts that have adjudicated motions to dismiss, etc., have all concluded that the act is a constitutional exercise of power under the commerce clause by Congress. And we would, of course, agree with that."
Posted by Marcia Oddi on October 1, 2007 08:05 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
None scheduled.
This week's oral arguments before the Court of Appeals that will be webcast:
This Monday, Oct. 1st:
10:00 AM - Smith and Wesson Corporation, et al v. Town of Gary, et al - The City of Gary filed a complaint against a number of manufacturers and distributors of handguns. The City alleged that the manufacturers negligently designed and distributed handguns and created a public nuisance in Gary by failing to take steps to prevent criminals from acquiring and misusing their products. The manufacturers filed a motion to dismiss the City's complaint or for judgment on the pleadings and argued that the Protection of Lawful Commerce in Arms Act ("PLCAA") required dismissal of the case. The trial court found that the PLCAA destroyed the City's cause of action but that the PLCAA was unconstitutional because it: violated the Due Process Clause, constituted an ex post facto law, and violated the separation of powers. On interlocutory appeal, the manufacturers argue that the PLCAA bars the City's lawsuit and that the PLCAA is constitutional. The City argues that the PLCAA does not provide a basis to dismiss this case and that the PLCAA is unconstitutional. The United States of America argues, as an intervenor, that the PLCAA is constitutional.
[For background on this case, see this Sept. 8, 2007 ILB entry, beginning at "And what of Indiana's Gary-based gun suit?"]
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will NOT be webcast:
This Monday, Oct. 1st:
1:30 PM - Maverick Musser, by his next friends; Mischelle Musser and Michael Musser vs. Daniel A. Roby, David J. Stach and Roby & Hood Law Firm - Maverick Musser, by his parents and next friends, Mischelle and Michael Musser (the Mussers), brought a legal malpractice action against Daniel Roby, David Stach, and Roby & Hood Law Firm (the Law Firm). The Mussers based their claim, in relevant part, upon the Law Firm's failure to properly disclose expert medical witnesses in a federal medical malpractice suit, which resulted in the exclusion of said expert testimony and the grant of summary judgment in favor of their deceased son's medical providers. The Law Firm sought summary judgment on the basis that the Mussers were not injured by the Law Firm's failure to designate certain witnesses (two treating physicians and three nurses) as experts because the Mussers would not have survived summary judgment in the federal case even if said witnesses had been properly designated. The trial court agreed and granted summary judgment in favor of the Law Firm. The Mussers now appeal. The Scheduled Panel Members are: Chief Judge Baker, Judges Friedlander and Crone.
This Wednesday, Oct. 3rd:
10:00 AM [at Sullivan High School, Sullivan, Indiana] - Jeffrey Douglas v. State of Indiana - Jeffrey Douglas pled guilty for failing to register as a sex offender, but challenges his sentence. In 1997, Douglas was convicted and sentenced for sexual misconduct with a minor, as a Class C felony. Douglas initially registered as a sex offender and reported a Madison County address, but moved without notifying or providing local law enforcement with a forwarding address. On appeal, Douglas argues that as applied to him the statute requiring registration by sex offenders is an ex post facto law. Douglas contends that the registration requirement is an additional penalty that did not exist at the time of his conviction, because the statute was modified after he was convicted to include those who committed misconduct with a minor, as a Class C felony. Additionally, Douglas claims that his enhanced sentence violates both the U.S. and Indiana Constitutions and that his sentence is inappropriate in light of the nature of the offense and the character of the offender. The Scheduled Panel Members are: Chief Judge Baker, Judges Bailey and Vaidik.
This Thurssday, Oct. 4th:
11:00 AM [at Indiana State University, Terre Haute, Indiana] - State of Indiana vs. Rex David Delph - The State appeals from the trial court's dismissal of all charges against Rex David Delph, who was accused of setting his home on fire, resulting in the deaths of his wife and son. The State had charged Delph with two counts of murder, Class A felony arson, and two counts of felony murder. The trial court, however, dismissed all charges against Delph on the basis that the State had failed to bring him to trial in a timely fashion, thereby violating his constitutional right to a speedy trial. The Scheduled Panel Members are: Judges Riley, Robb and Bradford
Posted by Marcia Oddi on October 1, 2007 06:11 AM
Posted to Indiana Courts
Courts - The First Monday in October
Today is of course the first Monday in October and the Supreme Court of the United States is beginning a new term.
See stories this morning by Tony Mauro, Linda Greenhouse, and David G. Savage.
Here, via the Washington Post, is the Court's schedule for this week.
And, to keep on top of everything, check the SCOTUS Blog.
Posted by Marcia Oddi on October 1, 2007 05:59 AM
Posted to Courts in general
Sunday, September 30, 2007
Ind. Courts - More on: "Five applicants have submitted their names to be considered for the new Monroe County judge position that will open on Jan. 1, 2008"
Updating this ILB entry from Sept. 27th, the Bloomington Herald-Times yesterday had this thoughtful opinion piece ($$$) headed "Challenges loom ahead for new judge:"
Five attorneys have applied for the judgeship of Monroe County’s ninth circuit court, scheduled to begin Jan. 1, 2008. Pursuant to the new court’s enabling legislation, Governor Daniels will appoint a judge to serve for an initial term of one year. If the new judge wants to stay in office, he or she will have to run for election to a six-year term in November 2008.Some say the new judge has an unfair advantage; as an incumbent, even a short-timer incumbent, the sitting judge may have a head start on the candidates who have to run in the general election. But as illustrated by the case of former judge Jeffrey Chalfant, who received a one-year appointment and then lost in the subsequent November election, that advantage may be slight compared to the power of the political process.
Few dispute that anyone who volunteers to take on a one-year appointment to a new court under the current system faces a huge challenge. The new judge must hire staff, establish policies and procedures, organize and manage the case load, preside over court proceedings, and attend required judicial events. While these duties are expected for any judge, for a new appointee, there is yet another burden: as soon as he or she crosses the judicial threshold, it’s time to run for office — a job which any county officeholder would acknowledge requires planning, networking, volunteer coordination, and public appearances.
One solution would be to establish new courts with a general election instead of an appointment. Another would be to adopt legislation that would provide for a bipartisan commission to select new appointees instead of the governor, with the initial appointments being for a longer period of time before a general election is held. Even more radical would be the elimination of partisan elections for judges altogether.
Until a better system is adopted, a new judicial appointee to a newly created court faces a very busy first year in office. We trust these five candidates have their eyes fully open to the challenges ahead for the winner.
Posted by Marcia Oddi on September 30, 2007 12:31 PM
Posted to Indiana Courts
Ind. Courts - CASA partners with IRTA
From a story in the Brazil Times dated 9/24:
Leaders of the Indiana Retired Teachers Association (IRTA) announced a new partnership recently between IRTA and CASA (Court-Appointed Special Advocates), in which IRTA members will be encouraged to serve as CASA volunteers across the state.The partnership was introduced at IRTA's annual fall workshop, which took place in South Bend, Delphi/Lafayette, Pendleton and Corydon. * * *
"We have chosen this partnership with CASA as a statewide project for the next two years," IRTA President Gene Wease said.
"The National Retired Teachers Association is looking at Indiana to use our program as a national model. I am excited about the opportunity to help children across Indiana."
Posted by Marcia Oddi on September 30, 2007 12:28 PM
Posted to Indiana Courts
Ind. Decisions - John Myers, convicted of killing IU student Jill Behrman, files appeal
Updating this ILB entry from Feb. 14, 2007, headed "Judge in Behrman case rejects bid for new trial", the Bedford Times-Mail reports today, in a story by Laura Lane:
[Defense attorney Patrick] Baker filed the appeal Sept. 21 after being granted three extensions of time. In June, Appeals Court Chief Judge John G. Baker granted the trial lawyer’s request to file an “oversized brief.” Appellate rules generally limit appeals briefs to 14,000 words, but the judge said Myers’ lawyer could submit up to 28,000 words.Baker agreed to continue representing Myers, without pay, during the appeals process.
The brief includes a statement of issues Baker addresses at length:
Should Burnham have granted a change of venue, given the blanket coverage of the case by local media? Baker wrote that the public was influenced “by the media hysteria, which memorialized Ms. Behrman, while demonizing and displaying Mr. Myers as an evil person.” He said the trial should have been moved “to a county as far away as possible from Morgan County.” He accused the media of engaging in “a clear pattern of prejudicial press coverage” that caused his client to be “the subject of vicious character assassination.”
Should the judge have not allowed damaging testimony from Myers’ former girlfriend and from his grandmother? The girlfriend said he took her to the spot where Behrman’s body was later found. The grandmother testified Myers told her he had done a very bad thing that could send him to jail for life.
Should a forensic pathologist’s opinion that Behrman was raped, even though there was no evidence available of sexual assault, have been admitted?
Should the jurors have been allowed to listen to an audiotape of police interrogating Myers?
Should the judge have excluded an FBI report that focused on other suspects in Behrman’s killing?
Was the separation-of-witness order violated?
Should the judge have granted a mistrial when a police officer referred to Myers’ refusal to take a lie detector test, and after another officer’s statement that Myers knew things about the crime that only the killer would know?
Does the jurors’ conduct, including the high-heels incident, nightly drinking at dinner and reports that they smuggled a TV and cell phone into their hotel, warrant a mistrial? “Is this the type of conduct expected from grown adults involved in such an important case, deciding a man’s liberty?” Baker asked.
Was there enough evidence presented to support a guilty verdict?
Do the alleged errors combined, even if each is not substantial enough on its own, meet the legal standard of cumulative error, justifying overturning the verdict?
The Morgan County Prosecutor’s Office has 30 days to respond. Then, members of the Indiana Court of Appeals will consider the case and issue a ruling.
Posted by Marcia Oddi on September 30, 2007 12:14 PM
Posted to Ind. Trial Ct. Decisions
Courts - More on Indiana Voter ID Law goes to Supreme Court [Updated]
The Evansville Courier & Press today editorializes in favor of upholding Indiana's voter ID law, concluding:
Passing this law was more about political posturing than integrity of the ballot box. To the extent that voter fraud exists in Indiana, it's more likely to occur with mail-in absentee ballots.Hmmm, the voter ID law as a post 9/11 security measure.While there was little need for this law, we don't have a huge objection to requiring ID at polling places. People are asked to show identification every day to board airplanes, cash checks or buy alcohol. Flashing ID before voting is not particularly onerous — as long as the ballot remains secret and there are backup measures for Hoosiers who lack identification. For example, someone who just lost his home, possessions and ID in a pre-election tornado or house fire might very well need provisional balloting.
The current Supreme Court under Chief Justice John G. Roberts has been relatively supportive of post-Sept. 11 security measures. We hope the justices will see through the political machinations motivating both sides in this case. The eventual decision ought to be crafted narrowly enough to uphold the basic legality of the voter ID law, while still ensuring that no eligible voter is disenfranchised.
[Updated] The NY Times today, in an editorial runthrough of some upcoming issues before the Supreme Court, says this about the voter ID case:
The case that will most test the court’s ability to rise above partisanship is a challenge to Indiana’s voter ID law. Indiana is one of a growing number of states that require voters to present a government-issued photo ID. Such laws have been billed as anti-vote-fraud measures, but there is little evidence of vote fraud at the polls. The Republicans who have pushed these laws are trying to make it hard for poor and minority voters, who are less likely than other groups to have drivers’ licenses — and more likely to vote Democratic — to cast ballots. The court has traditionally championed voting rights, but a conservative majority may boost Republican chances in 2008 by endorsing this disturbing barrier to voting.
Posted by Marcia Oddi on September 30, 2007 11:14 AM
Posted to Indiana Courts
Ind. Courts - "Two courts set to test records system"
The ILB has a long list of entries, beginning with this one on March 8, 2005, on the Indiana Supreme Court's efforts to implement a state-wide case management system.
Information on the progress of this project is not frequent. The most recent ILB entry was this one from June 11, 2007, based on a press release from Tyler Technologies, announcing that the company had signed a contract with the Indiana Supreme Court. At that time, and today, the most recent information on the Court's website was dated May 24, 2007. A quote:
JTAC is working with Tyler Technologies, Inc., to implement Odyssey in a phased approach. Phases 0 and 1 are currently in progress. During these two phases, Odyssey will be implemented in two pilot locations: all Monroe County Circuit Courts and Washington Township Small Claims Court in Marion County. Odyssey is anticipated to be live in these courts by the end of 2007.From half-way through Jon Murray's story today in the Indianapolis Star we get the news:
Monroe Circuit Court and Washington Township Small Claims Court in Marion County are up first. They plan to switch to Tyler's Odyssey case-management software in December.But perhaps the real news is in the next paragraphs:
Frustrated by the delays, however, Marion Superior Court judges sought permission from the Supreme Court to proceed with their own upgrade of the county's nearly 20-year-old case-management system, JUSTIS.The initial story on the Court's project appeared in the Indianapolis Star on March 8th, 2005. Written by Staci Hupp, it was headed "Plan to link 400 courts hits a wall: Costly software glitch halts effort to computerize records statewide". Portions are quoted in this 3/8/07 ILB entry, including:Like Odyssey, the county's new system will be Web-based and promises many of the same improvements. Employees have been working with consultants to build it from the ground up, paying for the work within the court's maintenance budget.
"Our courts have been chomping at the bit to move forward," said Glenn Lawrence, the Marion Superior Court administrator. "It's a film camera as opposed to a digital camera." * * *
Marion County's system could be ready to go live in the spring. But the judges also will keep an eye on the state's efforts, Lawrence said, and could decide to wait it out based on a financial analysis and how well the pilot testing goes. If the county keeps its own system, Lawrence said, it still would be able to connect with those in the state's web. * * *
The Supreme Court's Judicial Technology and Automation Committee (JTAC) is overseeing the effort. Its other projects include the computerization of traffic tickets and protective orders.
The computerized court system could expand across the state over six years, beginning in 2009, if later pilot counties are successful. Counties won't be forced to make the switch, DePrez said. If Marion County, which handles one-quarter of the state's cases, signs on, it likely would get priority, she said.
With both systems, the public likely would be able to view some case information online.
The breakdown surfaced in December, as Marion County officials tested a piece of software designed for Indiana civil courts. They found it lacked a critical element -- the ability to keep tabs on court fines and costs.Today's Star story includes this Timetable for the revamped project:
• June 2007: Initial analysis of Indiana courts' needs. Completed.• December 2007: Begin a test drive of Tyler's Odyssey software in Monroe Circuit Court and Washington Township Small Claims Court in Marion County.
• By mid-2009: Continue refining the program based on the first two sites. Convert five other pilot counties to the new system.
• 2009 to 2015: Begin sending "deployment teams" county to county to install the system across the state.
Posted by Marcia Oddi on September 30, 2007 10:21 AM
Posted to Indiana Courts
Ind. Gov't. - Ed Thuma, first head of the Legislative Services Agency, dies at 74
The Indianapolis Star today contains the obituary of Edison L. Thuma, who died Sept. 16th in Danville. From the obit:
Ed then served in state government in Indiana in various capacities, including the first Executive Director of the Legislative Services Agency and served as Governor Otis Bowen's budget director during the Governor's first term in office. He served as Deputy Health Commissioner and Mental Health Commissioner for Governor Robert Orr. * * *Ed was a well-liked and well-respected figure in state government for many years. I worked for him at the Legislative Services Agency and at the State Budget Agency. He will be missed.Ed is survived by his wife, Sharon, and his four children, Nathan of Napa Valley, California, David of Albuquerque, New Mexico, Jennifer of Indianapolis and Eric of Bloomington, as well as four grandchildren, Tobin, Gabrielle, Malcolm and Kate. * * *
A memorial service in his honor will be held Saturday, October 6, 2007 at 1 p.m. at Blanton House, 625 N. Washington St., in Danville.
Posted by Marcia Oddi on September 30, 2007 10:10 AM
Posted to Indiana Government
Ind. Courts - More on: Judge Tinder sails through confirmation hearing
Maureen Groppe of the Indianapolis Star Washington Bureau has a second report today (see earlier 9/26 report here) on Judge John Tinder's Sept. 25th hearing before the Senate Judiciary Committee. It is very similar to the first story.
Posted by Marcia Oddi on September 30, 2007 10:04 AM
Posted to Indiana Courts
Ind. Gov't. - More on: - Should legislators be allowed to serve as officers or directors of state universities and schools?
The ILB posted this entry on Oct. 8, 2006, quoting from several earlier entries, including: "The fact that Ivy Tech employs both the Senate President Pro Tem and the House Minority Leader (or Speaker, depending on the year) has been a subject of conversation for years. But nothing has been done about it." This ILB entry from March 30, 2007 is headed "More on "Ivy Tech’s troubled roots: Political entanglements deter community college mission". This ILB entry from April 17, 2007 describes the Pulitzer Prize for Investigative Reporting this year:
INVESTIGATIVE REPORTING: BRETT J. BLACKLEDGE, The Birmingham NewsToday's top story in the Indianapolis Star, reported by Brendan O'Shaughnessy, is headed: "Does Monroe Gray have two different jobs? The council president draws two paychecks, but the city can't produce work from his Fire Department job." But it includes plenty of mention of the long-time situation at Ivy Tech, including:Mr. Blackledge, 43, won for his work exposing extensive corruption and cronyism in Alabama’s network of 26 two-year colleges and training schools.
Mr. Blackledge’s reporting has led to the chancellor’s dismissal and to a move by the governor to ban the hiring of any state legislator by any of the colleges.
His dual role is an example of a larger issue in Indiana: the potential conflict of interest that can result when state and local laws allow elected officials to work in government jobs.The Star's newly updated government salaries database, released last week, remedies the shortcomings of last year's database, as the ILB wrote in this entry last Sunday, salaries of Ivy Tech employees are included in this year's database.Other states, including Ohio and Kentucky, have made it illegal for public employees to hold office in the same jurisdiction in which they work. State law changes in 1981 and 1995 made it legal to hold dual roles in Indiana. * * *
Gray is not the only public official working in a potentially conflicting role. Others include House Speaker B. Patrick Bauer, D-South Bend, and Rep. Bill Crawford, D-Indianapolis, who are among legislators who collect paychecks from Ivy Tech Community College of Indiana and from the legislature while voting on measures that affect state colleges. Bauer earns $137,289 for the two roles; Crawford earns $106,153 for them.
A side-bar to today's front-page Star story restates the updated salary information:
House Speaker B. Patrick Bauer, D-South Bend; Rep. Bill Crawford, D-Indianapolis; and former Senate President Pro Tem Robert D. Garton, R-Columbus, received more than $40,000 each annually for their service to the Indiana General Assembly and receive additional pay for working for Ivy Tech, a state college funded by taxpayer dollars. Bauer earns a total of $137,289 for both jobs; Crawford, $106,153. All three men have voted on the budget, which includes state college funding.
Posted by Marcia Oddi on September 30, 2007 09:27 AM
Posted to Indiana Government
Saturday, September 29, 2007
Ind. Courts - "Caesars' bid to dismiss suit rejected"
"Caesars' bid to dismiss suit rejected: Woman says casino exploited addiction," is the headline to a story by Grace Schneider in today's Louisville Courier Journal. Some quotes:
A request by Caesars Indiana to dismiss a Tennessee woman's lawsuit claiming that the casino took advantage of her gambling addiction was rejected yesterday by a Harrison County judge.Here are some quotes from an earlier story (9/3/07) by the same reporter:Circuit Judge H. Lloyd Whitis' ruling in the case of Jenny Kephart could open the door to a trial examining a casino's duty in handling compulsive gamblers. * * *
Whitis did not explain his reason for denying Caesars' motion. Kephart sued the casino in May after Caesars had taken her to court to recover $125,000 that Kephart lost during a single night of gambling in 2006.
Kephart, 52, of suburban Nashville, Tenn., has admitted losing more than $900,000 at casinos owned by Harrah's Entertainment Inc., which owns Caesars.
Her counterclaim alleges that Caesars knew that she had received a $1 million inheritance and enticed her with giveaways such as meals and overnight hotel stays and provided money on credit for her to gamble, despite knowing she was a compulsive gambler.
Noffsinger has said that casino executives also knew that Kephart had gone through bankruptcy four years earlier when parent Harrah's was one of her creditors. Kephart has worked in real estate but is now unemployed.
Indiana courts have shown little sympathy to gamblers who insist that casinos should be liable for their losses, ruling in similar cases that casino operators don't have to prevent customers from gambling.
Langdon had argued in written briefs and during a hearing before Whitis in August that Caesars employees had no way to know that Kephart was addicted to gambling because she didn't ask to be placed on a self-exclusion list allowing gamblers to have themselves banned from casinos.
In Indiana, 2,097 gamblers have requested self exclusion -- for periods of one year, five years or life -- since the program's inception in July 2004, according to Indiana Gaming Commission reports.
Kephart's case centers on whether a casino has a duty to protect an addicted gambler from himself or herself.Her lawyer, Terry Noffsinger, Evansville, contends that pathological gambling is widely viewed as a mental illness. He argued that Caesars' representatives knew Kephart couldn't control her gambling binges but still took "affirmative steps to persuade her to gamble" by calling her at home and offering her credit and complimentary hotel rooms, meals and limousine rides.
In similar cases, Indiana courts have held that casino operators don't have to prevent customers from gambling and consequently aren't responsible for their losses.
But Noffsinger stressed that the law is not fully settled in cases involving problem gambling.
"If she had just gone in (to Caesars) on her own, that would be one thing," he said. Instead, he told the judge Wednesday, he intends to prove that casino officials knew that Kephart was an addicted gambler and that they pursued her because she had money to spare from a $1 million inheritance she received in 2004. * * *
Noffsinger previously represented Evansville resident and professed gambling addict David Williams in a federal lawsuit in which the precedent that casinos have no duty to protect a compulsive gambler from himself was upheld.
Posted by Marcia Oddi on September 29, 2007 10:38 AM
Posted to Indiana Courts
Ind. Courts - Updating: More problems with the Camm trial transcript?
Updating these ILB entries from August 16th and August 16th-2 on reconstructing the inaudible objections in the David Camm transcript, Lesley Stedman Weidenbener of the Louisville Courier Journal reports today:
Lawyers for David Camm will have two more weeks to file the appeal of his convictions in his second murder trial, but Indiana Chief Justice Randall Shepard won't let them write as much as they want about the case.In an order issued yesterday, Shepard agreed to another extension of the deadline for the brief supporting Camm's appeal to the Indiana Supreme Court.
But Shepard denied the attorneys' request to increase the size limit on the brief from 21,000 words to 28,000. * * *
Shepard's ruling on the appeal extension gives court officials in Warrick County time to incorporate in the transcript reconstructed versions of objections raised during the trial. The court reporter had not been able to hear discussions about the objections, which took place near the judge's bench, so they were not included in the official transcript.
Warrick County Superior Court Judge Robert Aylsworth earlier this week approved some reconstructions of the discussions for inclusion in the transcript. The court reporter has until Oct. 3 to complete the new transcript, and then Camm's attorneys have until Oct. 12 to finish the brief.
Posted by Marcia Oddi on September 29, 2007 10:11 AM
Posted to Indiana Courts
Ind. Courts - More on: Vigo County Drug Court has saved taxpayers nearly $3 million over 10 years
Updating this ILB entry from yesterday, this ILB has located the NPC Research reports referenced in the stories. Here is the April 2007 report titled "Indiana Drug Courts: Vigo County Drug Court - Process, Outcome and Cost Evaluation - FINAL REPORT." Here is the entire list of reports, including several other Indiana counties.
Here is the Indiana Courts page on Drug Courts.
Posted by Marcia Oddi on September 29, 2007 09:38 AM
Posted to Indiana Courts
Ind. Decisions - More on the Supreme Court's probation fees decision
Updating this entry on Wednesday's Supreme Court decision in Clark County Council and Clark County Auditor v. Daniel F. Donahue, Cecile A. Blau, Vicki Carmichael, and Steven M. Fleece, the probation fees decision, Larry Thomas of the New Albany News and Tribune reports on what is next :
Clark County’s Circuit and Superior court judges are largely thankful that a nearly three-year lawsuit with the County Council has ended following an Indiana Supreme Court decision on Wednesday.Justices ruled 5-0 that the County Council illegally exerted control over probation user fees in 2005 and 2006, and remanded the case to DuBois County Superior Judge Elaine Brown — who is special judge in the case — to determine how much money the council must repay the courts’ probation user fee funds.
Superior Court 3 Judge Steve Fleece said he would prefer to return to Brown with an agreement with the council that stipulates the amount of money to be repaid, rather than forcing Brown to sort through budgets and other documents before imposing a figure on the sides.
“This all requires that they’re going to act in good faith,” said Fleece, referring to council members.
Fleece added that the county’s 2004 budget — the last before the council began supplementing the county’s budget with probation funds — would likely be the starting point for such research.
“We’re pulling those budgets to take a look,” said Superior Court 2 Judge Cecile Blau.
Blau said judges are likely to consider the county’s current fiscal health if the council will participate in repayment negotiations.
“We want to ascertain what the condition of the council really is,” she said.
On Wednesday, County Council President David Abbott said he wants to resolve the repayment matter quickly and plans to call an executive session next week to discuss the Supreme Court’s ruling with other council members and the board’s lawyer.
Abbott was not a member of the council when the 2005 and 2006 budgets were approved.
The Supreme Court’s ruling grants the council the authority to appropriate probation user funds, but found that its use of the money during the previous two years was contrary to state law.
Posted by Marcia Oddi on September 29, 2007 09:16 AM
Posted to Ind. Sup.Ct. Decisions
Friday, September 28, 2007
Ind. Decisions - Transfer list for week ending September 28, 2007
Here is the Indiana Supreme Court's transfer list for the week ending September 28, 2007. Be sure to view all 7 pages.
There were four transfers granted this week, three of which were summarized in this entry from Wednesday. The fourth is in the case of Timothy Ray Creech v. State of Indiana (NFP)
Nearing four 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 September 28, 2007 04:07 PM
Posted to Indiana Transfer Lists
Courts - Kentucky lethal injection case granted cert Tuesday by SCOTUS [Updated]
James R. Carroll of the Louisville Courier Journal reported Sept. 25th in a story that began:
The Supreme Court agreed yesterday to hear a Kentucky case that challenges the constitutionality of the mix of drugs used in lethal injections.Today the NY Times reports:This will be the first time the high court will consider whether such injections violate the Eighth Amendment of the Constitution prohibiting cruel and unusual punishment.
The decision to hear the case is likely to have an immediate impact beyond Kentucky, said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit organization based in Washington.
"Virtually all executions are by lethal injection," Dieter said. "It will at least hold up all executions in the country for a time and may require broad revisions in the law."
In a fresh sign that the use of lethal injection in capital punishment faces an uncertain future, the Supreme Court issued an unusual last-minute reprieve for a death-row inmate in Texas late last night.Regular ILB readers may recall this May 1, 2007 entry headed "Judge Young denies challenge to Indiana's lethal-injection procedures," perhaps worth rereading.Although the court gave no reason for its decision, the inmate, Carlton Turner Jr., had appealed to the court after it agreed on Tuesday to consider the constitutionality of lethal injection, the most commonly used method of execution in the United States. The decision suggests that until it issues a ruling on lethal injection, the court may be receptive to requests to delay such executions, at least for defendants whose cases raise no procedural issues. * * *
Earlier in the day, another rare stay of an execution came in Alabama, where Gov. Bob Riley said the state would not execute an inmate named Tommy Arthur while it came up with a new formula for lethal injection. State officials said they wanted to make sure prisoners were completely unconscious before they were killed.
The full effect of the Supreme Court’s decision is not yet known, but it may interrupt what appears to be emerging as a patchwork, state-by-state response to its decision Tuesday to look at whether lethal injection causes unnecessary suffering.
Some states, even ardent pro-death penalty ones like Alabama, are slowing down. Others, like Texas, had been cruising at full speed; the state executed a prisoner a few hours after the court’s decision on Tuesday and was planning to proceed with its 27th execution of the year last night when the Court intervened. Eleven states have stopped lethal injections altogether, as litigation proceeds.
Three Indiana Death Row inmates had joined the request for a preliminary injunction. Subsequently, David Leon Woods and Michael A. Lambert have been executed by lethal injection. Norman Timberlake, who filed the original suit last December in U.S. District Court in Indianapolis, remains on Death Row. For more, see this list of ILB entries.
[Updated 9/29/07] "Lethal Injection Under Scrutiny" is the heading of a comprehensive story by the AP's Ron Word.
"Texas Planning New Execution Despite Ruling" is the headline to a story in today's NY Times by Ralph Blumenthal and Linda Greenhouse that begins:
HOUSTON, Sept. 28 — A day after the United States Supreme Court halted an execution in Texas at the last minute, Texas officials made clear on Friday that they would nonetheless proceed with more executions in coming months, including one next week.See this entry today from Sentencing Law Blog, headed "Everyone trying to figure out if there is now an execution moratorium."Though several other states are halting lethal injections until it is clear whether they are constitutional, Texas is taking a different course, risking a confrontation with the court.
“The Supreme Court’s decision to stay convicted murderer Carlton Turner’s execution will not necessarily result in an abrupt halt to Texas executions,” said Jerry Strickland, a spokesman for Attorney General Greg Abbott of Texas. “State and federal courts will continue to address each scheduled execution on a case-by-case basis.”
Shortly before midnight on Thursday, the Supreme Court stayed the execution of Mr. Turner, who had been scheduled to become the 26th Texas inmate executed this year by lethal injection in Huntsville. * * *
Several legal experts said the Supreme Court reprieve would be seen by most states as a signal to halt all executions until the court determined, probably some time next year, whether the current chemical formulation used for lethal injections amounts to cruel and unusual punishment barred by the Eighth Amendment.
Eleven states had halted executions for that reason. On Thursday, Alabama stayed an execution for 45 days to come up with a new formula.
“There is a momentum quality to this,” said Douglas A. Berman, a law professor at Ohio State University who has a blog, Sentencing Law and Policy. “Not only the Supreme Court granting the stay, but also the Alabama governor doing a reprieve that is likely to lead to other states with executions on the horizon waiting to see what the Supreme Court does. I’ll be surprised if many, and arguably if any states other than Texas, go through with executions this year.”
On his blog on Friday, Professor Berman predicted that there would be few if any executions in the country for the next 9 to 18 months, while the court deliberates and, later, as lower courts parse the meaning of its eventual ruling.
Texas, which has a history of confrontations with the Supreme Court over its prerogatives in criminal justice, does not appear interested in waiting. That forces lawyers for condemned prisoners to appeal each case as high as the Supreme Court.
Posted by Marcia Oddi on September 28, 2007 02:55 PM
Posted to Courts in general
Ind. Law - Restrictive covenants in Allen County
Mitch Harper of Fort Wayne Observed has an important entry this afternoon building on a column today by Kathleen Quilligan of the Fort Wayne News-Sentinel. I recommend you read both.
Posted by Marcia Oddi on September 28, 2007 02:43 PM
Posted to Indiana Law
Ind. Courts - List of those applicants who were successful on the July 2007 Indiana Bar Examination
Access the results here, 5 single-spaced, double-columned lists of names,
Posted by Marcia Oddi on September 28, 2007 02:29 PM
Posted to Indiana Courts
Ind. Decisions - Court of Appeals issues 3 today (and 22 NFP)
For publication opinions today (3):
In Crider & Crider, Inc. v. Royal Downen and Anthony Ross "Tony" Downen , a 9-page opinion, Judge Bailey writes:
Appellant-Defendant Crider & Crider, Inc. (“Crider”) appeals the denial of its motion to correct error, which challenged the $37,267.52 award of damages to Appellees-Plaintiffs Royal Downen and Anthony Downen (collectively, “the Downens”) after Crider admitted it breached its contract for the rental of the Downens’ farm property to dispose of muck generated in the process of highway construction. We revise the award of damages to $35,760.00. * * *In Delta Building Group, Inc. v. Michael A. Laurenzano and Livia A. Laurenzano and Newcomer Lumber and Supply Co., Inc., et al., a 12-page opinion, Judge Crone writes:The trial court properly awarded damages for partial restoration of the property and for diminution in value and the amount of those damages was within the range of the evidence presented. However, the evidence on damage to personal property supports a maximum award of $8,000.00. Therefore, we reduce the award of damages by $1,507.52, providing for a revised damages award of $35,760.00. Revised.
Case Summary. Delta Building Group, Inc. (“Delta”) appeals the trial court’s finding in favor of Michael A. Laurenzano and Livia A. Laurenzano (collectively “the Laurenzanos”) on their complaint for interpleader. We affirm.In Carl A. Major v. State of Indiana , a 19-page opinion, Judge Bradford writes:Issue. The dispositive issue is whether the trial court violated the Uniform Arbitration Act (“the UAA”) by improperly modifying or vacating a prior arbitration award. * * *
Delta claims that the trial court violated the UAA by improperly modifying and/or vacating the arbitration award in the instant case. The Laurenzanos counter that they never intended to challenge the arbitration award and that the trial court’s orders “simply enforce[d] the arbitration award and protect[ed] the Laurenzanos from multiple liability.” We agree. * * *
[W]e agree with the Laurenzanos that the trial court’s orders enforced the arbitrator’s award and distributed it so as to protect the Laurenzanos from multiple liability as to these particular funds.1 In sum, we see no error in the trial court’s decision to find in favor of the Laurenzanos on their complaint for interpleader. * * *
The trial court distribution order simply enforced the agreed stipulation entered into by Newcomer, Window One, and Thermocore. We find no error in the trial court’s distribution of funds.
Following a jury trial, Appellant-Defendant Carl Major appeals his convictions for three counts of Murder in the Perpetration of a Robbery, a felony,1 and one count of Aggravated Battery as a Class B felony2 and his corresponding aggregate sentence of 175 years. Upon appeal, Major claims the trial court erred in empaneling an anonymous jury and that his sentence was inappropriate. Concluding that the trial court erred in empaneling an anonymous jury but that such error was harmless, and further, that Major’s sentence was not inappropriate, we affirm.NFP civil opinions today (7):
Dawn D. Davis v. Review Board and Rossville Consolidated School District (NFP) - denial of unemployment benefits affirmed.
Stephen H. and Jennifer A. Perlmutter v. E.E. Brandenberger Construction, Inc. (NFP) - "We conclude the Perlmutters were unjustly enriched by improvements they requested and then refused to pay for, the parties’ conduct modified the terms of the construction contract, and the Perlmutters breached the contract. The trial court did not err in awarding Brandenberger attorney fees; however, the trial court awarded double recovery to Brandenberger and the judgment should be reduced by the amount of that double recovery. Judgment affirmed in part and remanded in part."
Termination of the Parent-Child Relationship of E.E.S. and E.T.S. and J.S.S.; Melissa Plumm v. Bartholomew County Department of Child Services - "The BCOFC agreed to support “the family bond” until Plumm was released from prison and had an opportunity to carry out the case plan requirements, and it violated that agreement by proceeding with termination prior to her release from prison. We disapprove of this type of agreement, because it restricts the OFC from acting pursuant to the termination statutes or in the best interests of the children. Nevertheless, neither can we allow an OFC to ignore such an agreement when the parent’s consideration for the agreement was, in essence, waiver of the right to due process at the CHINS proceeding. Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion."
Termination of the Parent-Child Relationship of E.N.; Dawn Nowak v. Lake County Department of Child Services and CASA (NFP) - Dawn Nowak appeals the termination of her parental rights to E.N. Affirmed
Matter of the Commitment of H.H. v. Wishard Health Services Midtown Health Center (NFP) - "H.H. appeals from the trial court’s order involuntarily committing him temporarily to a mental institution.1 He raises one issue, which we restate as whether sufficient evidence supported the finding that he is dangerous or gravely disabled. * * * Given the evidence presented, and applying the proper standard of review, we find that the temporary involuntary commitment order represents a conclusion that a reasonable person could have drawn. Indeed, there was sufficient evidence to meet one or both prongs of Indiana Code Section 12-26-6-1. Hence, we must affirm."
Steven E. Jahn, Greg Tucker and Cindy Tucker v. Patrick Hogan and Cynthia Hogan (NFP) - 27-page opinion. "Appellants Greg and Cindy Tucker (collectively, “the Tuckers”) and Steven Jahn (“Jahn”) appeal an order of the Allen Superior Court providing that Jahn is liable for damages and punitive damages attributable to his fraud in a real estate transaction, and also liable for contract-based attorney’s fees, and the Tuckers are liable for nuisance and for interference with an easement possessed by Patrick and Cynthia Hogan (collectively, “the Hogans”) across a pond touching the Tucker and Hogan properties. We affirm in part, reverse in part, and remand for further proceedings with respect to damages."
Tracy A. Butler v. Alan D. Butler (NFP) - "Tracy Butler (“Mother”) appeals the grant of custody of their two children to her ex-husband Alan Butler (“Father”). Mother claims the court erroneously gave preference to Father because he would be “co-parenting” with Nancy Butler, the children’s paternal grandmother (“Grandmother”). This was improper, she asserts, because the court did not enter the findings required for Grandmother to be a de facto custodian. Because the evidence, findings, and judgment do not support Mother’s position regarding the court’s consideration of Grandmother, we affirm."
NFP criminal opinions today (15):
Rickey E. Graham v. State of Indiana (NFP)
Robert D. Hoskins v. State of Indiana (NFP)
Robert Clark v. State of Indiana (NFP)
Danny L. Smith v. State of Indiana (NFP)
Edward G. Sallee v. State of Indiana (NFP)
Crawford L. Arrington v. State of Indiana (NFP)
Terrence Coleman v. State of Indiana (NFP)
Clyde Piggie v. State of Indiana (NFP)
Justin Bunch v. State of Indiana (NFP)
Ronald Mastrog v. State of Indiana (NFP)
John A. Murphy v. State of Indiana (NFP)
Donald Winchester v. State of Indiana (NFP)
Joshua E. Davis v. State of Indiana (NFP)
Leo D. Stanford v. State of Indiana (NFP)
Eugene Wroblewski v. State of Indiana (NFP)
Posted by Marcia Oddi on September 28, 2007 02:02 PM
Posted to Ind. App.Ct. Decisions
Law - "Ohio Wine Lovers to be Cut-off October 1"
A press release from Free the Grapes begins:
NAPA, Calif.--(BUSINESS WIRE)--A new law effective Monday, October 1 will prevent Ohio wine lovers from continuing to purchase wines directly from many popular mid-sized wineries, according to Free the Grapes! (www.freethegrapes.org)During the closing stages of this year’s budget process, an amendment was slipped into the budget bill that prohibits medium and large wineries and wine companies whose total production exceeds 62,500 cases from shipping wine directly to Ohio consumers. The law was signed in June and goes into effective Monday.
Additionally, the law creates a potentially unworkable system that may scare eligible wineries from shipping any wine to Ohio consumers. The bill sets a 24-case annual shipping limit per “family household,” rather than an annual limit per winery, per individual, as is common in most states. Because wineries cannot be sure how much wine a household has purchased directly from others, wineries will not risk the penalties of non-compliance. Other states using a similar measurement, including Indiana and Massachusetts, have been considered “prohibited” by wineries and common carriers.
Posted by Marcia Oddi on September 28, 2007 08:53 AM
Posted to General Law Related
Courts - More on Indiana Voter ID Law goes to Supreme Court
Daniel P. Tokaji, a law professor at Ohio State University, where he teaches election law, has an Op-Ed piece today in the LA Times. It begins:
The U.S. Supreme Court announced this week that it would hear a challenge to an Indiana law that requires people to show government-issued photo identification in order to have their votes counted. Two other states have passed such laws in recent years, and others have debated the issue. Promoters of these laws argue that they are needed to prevent fraud. Opponents claim that they will impede eligible citizens from voting -- a disproportionate number of them poor, elderly, disabled or racial minorities.From an editorial today in the Fort Wayne Journal Gazette:In fact, there's reason to believe that suppressing turnout is precisely the motivation behind the strictest voter ID laws. There are almost no documented cases of people pretending to be someone they're not at the polls, the only "problem" that these laws purport to address. On the other hand, there is considerable evidence that requiring ID will suppress turnout among some groups of voters.
A sharply divided Supreme Court could issue a sharply divided opinion in its review of Indiana’s restrictive voter identification law. But it’s gratifying to see the decision won’t rest with the Court of Appeals and on Judge Richard Posner’s troubling views on the value of voting.The high court’s decision will represent a test to more than Indiana’s law, which was challenged in two separate suits now consolidated by the Supreme Court. As it did in the Indiana General Assembly, support for voter-ID laws elsewhere breaks clearly on partisan lines. Indeed, Posner’s ruling conceded that the voters who most likely don’t have photo identification are those “low on the economic ladder” and thus are more likely to vote for Democratic than Republican candidates. Posner was joined in affirming the lower court decision by Judge Diane Sykes, another Republican appointee. Judge Terence T. Evans, who dissented, was a Democratic appointee.
Posted by Marcia Oddi on September 28, 2007 08:46 AM
Posted to Courts in general
Ind. Courts - Vigo County Drug Court has saved taxpayers nearly $3 million over 10 years [Updated]
Deb McKee Kelly reports today in the Terre Haute Tribune Star: in a story that begins:
TERRE HAUTE — The Vigo County Drug Court saved taxpayers nearly $3 million over 10 years from its inception in 1996 to June 2006, according to a new report commissioned by the Indiana Judicial Center.[Updated 9/29/07] This story by Katie Shane of WOWO reports:The evaluation, by NPC Research of Portland, Ore., studied Vigo, Marion, Monroe, Vanderburgh and St. Joseph counties’ drug courts, and was funded by a $250,000 grant from the Indiana Criminal Justice Institute.
The study was designed to show whether the drug courts reduce recidivism (re-arrest of offenders after completing the program), whether they save taxpayers money, whether they reduce substance abuse and whether they deliver services to the targeted population.
For every question explored in the study, the answers were positive, making the 11th anniversary of Vigo County’s drug court – “almost to the day,” according to Judge Barbara Brugnaux – a sweet one.
Brugnaux said the results of the study “blew me away.”
Among other findings, the Oregon research company found that the re-arrest rate for graduates of the Vigo County Drug Court is 7 percent, compared to a 39 percent re-arrest rate for nonparticipants.
For those participants in drug court who did not complete the program, the re-arrest rate is 20 percent.
The taxpayer savings were calculated for Vigo County by determining the cost per participant in drug court, which is $3,684, compared with the adjudication costs for nonparticipants, which is $7,935.
One Valley court is making good things happen and saving tax payers money in the process.Division 5, which serves as the Vigo County Drug Court, was reviewed by NPC research.
The study looked at four other courts in Indiana to determine goals of reducing re-arrests and saving taxpayer money.
NPC studied Vigo County over a ten year period from September 1996 to June 2006.
In that time division five saved 2.9 million tax dollars.
Another high note for the court was the low amount of re-arrests for graduates of the drug court.
Only 7 percent of graduates were re-arrested after completing the program.
Division 5 Judge Barbara Brugneaux says the study will be important in the future in order to receive additional state funding.
"It's absolutely reaffirming," Judge Brugneax said. "I was just blow away when I saw that 2.9-million dollar figure. It took me a while to understand how they calculated that figure and it was very impressive to me and I hope that it will be equally impressive to members of the General Assembly when we go and ask for state funding."
The court's findings will be held and presented to the state during the 2008 budget talks.
Judge Brugneax says she hopes with the positive report the court will receive more state and federal funding.
Posted by Marcia Oddi on September 28, 2007 08:42 AM
Posted to Indiana CourtsInd. Decisions - Montgomery County paper's take on the Supreme Court's mandate ruling
Updating this ILB entry from yesterday, today we have The Paper of Montgomery County's report, written by community editor Barry Lewis, on the Supreme Court's decision Wednesday in the court employee salary case: In Re: Order for Mandate of Funds; Montgomery County Council v. Hon. Thomas K. Milligan, Hon. David A. Ault and Hon. Peggy Q. Lohorn:
After nine months of waiting the Indiana Supreme Court has rendered its decision in the case between the Montgomery County Council and the judges' mandate of funds.In a decision made Wednesday and received Thursday, the Supreme Court did not agree with the findings special trial Judge Julian L. Ridlen who ruled in favor of the judges. After a two-day trial in July of 2006, Ridlen issued an order on Sept. 19, 2006 that the Montgomery County Council pay the salaries mandated by the three Montgomery County judges, along with attorney fees of more than $124,000.
The Supreme Court's decision did give all nine court employees pay raises, but not at the level the judges had sought. The ruling also cut the amount of the judges' legal fees from $124,525 to $72,810.29.
"We felt like what the judges had asked for was excessive and it's nice to see that the Supreme Court agreed with us," current Council President Don Peterson said.
Sen. Phil Boots, who was a council member at the time of the mandate and the trial, had mixed feelings about the decision.
"I am happy that the Supreme Court basically agreed with what we were willing to offer originally," he said. "I am disappointed that the fact that we had to go through all this legal mumbo-jumbo to get to this point. We tried to negotiate a number very similar to this and the judges refused. Now, we are about where we could have been, but it has cost the taxpayers a lot more money to get to that point."
The judges declined comment individually, but released a statement, which in part, read:
"Adequate funding for the courts' staffs had become an issue that could not be postponed any longer. The judges regret that the conflict developed as it did. To the credit of both the council members and the judges the disagreement did not become personal, but all parties remained professional."
The judges had mandated that court reporters and administrative assistants be paid $31,200 and that the secretary/ bailiff/ receptionist be paid $27,200. The Council offered the judges $27,000 for the court reporter and administration assistant positions.
According to the ruling, court reporters will receive $29,800 for time worked from Aug. 15, 2005 (when the original mandate was issued) to Dec. 31, 2005 and $30,700 for 2006. The salary for 2007 will be the 2006 salary, plus whatever raise was given. The administrative assistants will be awarded $27,600 for 2005, $28,400 for 2006 and 2007 will be whatever raise was given. The secretary/ bailiff/ receptionist salary will go to $26,100 for 2005, $26.900 for 2006 and the salary for 2007 will be whatever raise was given.
According to the Supreme Court ruling the figures were based on comparison salaries from the contiguous counties (Boone, Clinton, Tippecanoe, Fountain, Parke, Putnam and Hendricks).
"Comparisons with competing and contiguous counties take into account the most immediate 'threat' to a court's ability to attract and retain employees," the ruling said. This is what the Supreme Court used as its benchmark to determine the salaries.
"To me it was a win-win for us," Councilman Jim Fulwider said. "The figures came back about where we had offered. I was very impressed with the Supreme Court taking the time to study the issues and make a very well-informed decision. I think most people didn't ever think a group of judges would rule against another set of judges. The Supreme Court proved those people wrong. They looked at the evidence and made a good decision. The employees got a raise, but it was in line with what it should have been, not some artificial figure."
According to Peterson the court employees will have their extra money by the end of the year and "more than likely, sooner than that."
"It will take some time to recalculate everything, but they will get their money as soon as we can get it to them," he said.
The county has until the end of 2008 to pay the judges' legal fees. Three equal installments are to be paid on Dec. 31, 2007, June 30, 2008 and Dec. 31, 2008. No appellate attorney fees were awarded. Furthermore, the Supreme Court ruled that Montgomery County Auditor Jeff Dossett was not in contempt after Ridlen found him in contempt earlier.
Posted by Marcia Oddi on September 28, 2007 08:34 AM
Posted to Ind. Sup.Ct. DecisionsThursday, September 27, 2007
Ind. Decisions - Supreme Court interprets tax sale statute
In In Re: Parcels Sold for Delinquent Taxes; Vanderburgh County Auditor, et al. v. Michiana Campgrounds, LLC, a 6-page, 5-0 opinion, Justice Boehm writes:
We hold that a purchaser at a tax sale who does not seek an order to issue a deed is not entitled to the partial refund of the purchase price provided in Indiana Code section 6-1.1-25-4.6(d). * * *The trial court and the Court of Appeals agreed with Michiana that it was entitled to the refund under section 4.6(d). The County responds that Michiana is not entitled to the refunds because section 4.6(d) allows a refund only where a petition for a tax deed is filed and the trial court refuses issuance of the deed. The County argues that because Michiana issued the first notice under section 4.5 but never attempted to issue the second notice required by section 4.6, Mi-chiana was not “refused” a deed. Rather it chose to fail to fulfill the requirements for issuance of a deed. The County also contends that section 4.5(j), discussed below, addresses situations where, as the County puts it, a “tax sale purchaser simply elects not to file a petition for a tax deed.” Michiana does not address section 4.5(j). * * *
We think that the statutory reference to “refusal” purposefully limits refunds to purchasers who go to the time and expense of seeking a deed. Buyer’s remorse is not a basis for a refund. * * *
The trial court’s grant of Michiana’s motion for refund of the purchase price minus a twenty-five percent penalty is reversed.
Posted by Marcia Oddi on September 27, 2007 03:19 PM
Posted to Ind. Sup.Ct. DecisionsInd. Decisions - Court of Appeals issues 1 today (and 5 NFP)
As of 1:30 PM today, no cases posted. As of 3:13 PM, however, the following had been posted:
For publication opinions today (1):
John Eversole v. State of Indiana - "As a result of our review, we believe evidence of Eversole’s good character, including his guilty plea, present an arguable case for a lesser sentence. However, at the same time, we find it difficult to ignore the serious nature of Eversole’s offense -- specifically, that his actions resulted in the death of another human being. Thus, ultimately, it is our opinion that the trial court arrived at an appropriate sentence after considering these factors. Additionally, we note the trial court followed the recommendation of Eversole’s Probation Officer in sentencing him to the advisory sentence of thirty years. Accordingly, we conclude the trial court appropriately sentenced Eversole."
NFP civil opinions today (1):
Termination of the Parent-Child Relationship of K.H. and R.M.: Billie Jo Hiner v. Whitley County Department of Child Services (NFP) - "Based on the foregoing, we find the trial court used the correct standard when entering its findings of fact, and there was sufficient evidence to support the trial court’s termination of Mother’s parental rights to K.H. and R.M."
NFP criminal opinions today (4):
D.C. v. State of Indiana (NFP)
William J. Cain v. State of Indiana (NFP)
Keith Curtis Spencer, Jr. v. State of Indiana (NFP)
David Rosenthall v. State of Indiana (NFP)
Posted by Marcia Oddi on September 27, 2007 01:30 PM
Posted to Ind. App.Ct. DecisionsInd. Courts - "Five applicants have submitted their names to be considered for the new Monroe County judge position that will open on Jan. 1, 2008"
According to the story in the Bloomington Herald Times:
The applicants are all from Bloomington, and some applied for the most recent judicial opening back in 2005, for the court that came online in 2006.This year’s candidates are:
-- Donald Francis Jr., 43. Francis is in private practice with a focus on family law and is a judge pro tempore in Monroe Circuit Court.
-- Joby Jerrells, 40. Jerrells, a former deputy attorney general and Monroe County deputy prosecutor, is in private practice and assists with appellate work for the Indiana attorney general.
-- Valerie Haughton, 58. Haughton, a candidate for judge last year, is a former deputy Monroe County prosecutor and current deputy public defender.
-- Christine Haseman, 41. Haseman is in private practice, focusing on child advocacy, family law and estate planning.
-- Herb Kilmer, 60. Kilmer, a former Monroe County commissioner, is currently in private practice and teaches at Indiana University’s Law Enforcement Academy.
Indiana Gov. Mitch Daniels is expected to name the new judge sometime before the end of November, spokeswoman Jane Jankowski said. “Interviews will likely be sometime in October, and the goal is to have the new appointee selected by November,” Jankowski said.
The new judge is expected to oversee a mixture of small claims and domestic relations matters.
Kilmer and Haseman, along with five others, applied for the county’s last judicial opening in 2005.Frances Hill was appointed to that position and then survived a challenge by Haughton in the 2006 countywide election.
Posted by Marcia Oddi on September 27, 2007 01:18 PM
Posted to Indiana CourtsInd. Law - Legislative Annexation Study Committee hears testimony
"Annexation tactics prompt complaints: Remonstrance rules unfair, panel told" is the headline to this story by Niki Kelly in today's Fort Wayne Journal Gazette:
INDIANAPOLIS – Citizens from various parts of Indiana urged a state panel Wednesday to make major changes to the state’s annexation law or possibly prohibit forced annexations altogether.Here is a link to the webpage of the Annexation Study Committee. The Committee was created by SECTION 143 (pp. 163-164) of HEA 1478, which reads in part:Matt Milam, president of a central Indiana group fighting an annexation in Hamilton County, said Indiana is one of only six states that allow involuntary annexations.
He claimed some cities looking to annex are unethical, even setting hearings on holidays or during the winter when it is hard to get the necessary signatures to remonstrate.
Milam told the Annexation Study Committee that his tax bills would go up 24 percent as a result of the annexation.
But he said that’s not why he is in opposition. It’s because the officials in Carmel – the city trying to annex Home Place – are on a spending spree.
Aboite Township Trustee Barbara Krisher, a member of the panel, empathized with the effort it takes to fight an annexation and the tactics used.
“I don’t think it’s just about money,” she said.
She also criticized the new annexation technique of having subdivision developers who are seeking city sewer and water service on their land waive the future right of homeowners to remonstrate against annexations.
Krisher said some people are not told about the waiver until the day of closing and are forced to make an immediate, untenable decision. She supports more notice requirements for these types of waivers.
That issue will be discussed in more depth at the panel’s Oct. 10 meeting.
Meanwhile, some communities in southern Indiana have begun to get crafty with the waivers. In one Floyd County annexation, the specific boundaries made it impossible to reach the 65 percent remonstrance threshold because more than 35 percent of the landowners were bound by such waivers.
Gene Thompson, who fought a forced annexation in Boone County, said the 65 percent amount is hard to achieve and does nothing but get the remonstrator a day in court.
He believes the law should be changed so that a remonstrator must get signatures of 65 percent of those who are able to sign, which would exclude those with waivers. Otherwise, those who are not bound by waivers are disenfranchised because they can’t meet the threshold. Thompson likened the current rules to requiring a city council member or state representative to receive votes from 51 percent of all registered voters – not 51 percent of the votes cast.
He said the entire process would be smoother and cleaner if there were a simple referendum on the annexation of the affected landowners.
“Let the citizens vote on who is going to govern them,” he said.
The committee will have at least two more meetings and recommendations to the General Assembly for the 2008 legislative session.
(b) The annexation study committee is established. The committee shall study:
(1) revising the statutes concerning municipal annexation of territory. The committee's study may not include the annexation statutes in IC 36-3-2; and
(2) whether "one and fifteen hundredths (1.15)" in STEP THREE of IC 6-1.1-18.5-3(a) and STEP THREE of IC 6-1.1-18.5-3(b) is sufficient to raise adequate property taxes for a municipality annexing territory.Posted by Marcia Oddi on September 27, 2007 08:44 AM
Posted to Indiana LawInd. Courts - "Terre Haute attorney Craig McKee is installed as a new part-time federal magistrate judge"
Deb McKee Kelly of the Terre Haute Tribune-Star reports:
TERRE HAUTE — Under a 20-foot mural depicting the signing of the Magna Carta, Terre Haute attorney Craig McKee was sworn in Wednesday afternoon as a part-time United States magistrate judge.The ceremony took place in the courtroom of the U.S. District Court for the Southern District of Indiana, in the federal building on Seventh and Cherry streets – a courtroom that McKee recalled seeing for the first time as a young lawyer, when he clerked for the Judge Gene E. Brooks of the district court.
During an address to assembled colleagues, friends, family and presiding federal Judge Larry J. McKinney, McKee expressed his initial awe at the courtroom, a massive space with nearly 30-foot ceilings, walls of cherry wood and the colorful mural.
McKee, 49, replaces longtime Magistrate Jordan Lewis, who retired from the federal bench earlier this year after more than 28 years of service.
During his comments, McKee said serving as part-time federal magistrate will allow him to experience “the best of both worlds,” as judge and practicing attorney. * * *
McKee’s magistrate duties will focus on the court’s pre-trial criminal proceedings in the Terre Haute division. The position oversees arraignments and initial appearances by criminal defendants facing charges through the U.S. Attorney’s office in U.S. District Court.
Part-time magistrate judges are appointed through a merit-selection process by the judges of the U.S. District Courts for terms of four years, and are eligible for reappointment to successive terms. The court anticipates that McKee will be appointed upon completion of required Internal Revenue Service and FBI background investigations.
Posted by Marcia Oddi on September 27, 2007 08:35 AM
Posted to Indiana CourtsCourts - "Supreme Court to Address Pharmaceutical Companies' Protection From State Suits" [Updated]
AP reporter Christopher S. Rugaber writes today:
The Supreme Court said Tuesday it will decide a case that centers on whether federal regulation of pharmaceuticals pre-empts state law.[Update] SCOTUS Blog has just posted an entry on this case.The case involves a product liability lawsuit against Pfizer's Warner-Lambert unit.
A group of Michigan plaintiffs led by Kimberly Kent in April 2000 sued Warner-Lambert Co. over alleged injuries caused by its Rezulin diabetes drug. Rezulin was ordered off the market in March 2000 by the Food and Drug Administration after it was linked to nearly 400 deaths and hundreds of cases of liver failure.
A federal district court dismissed the suit in 2005, citing a Michigan law that shields FDA-approved pharmaceuticals from liability lawsuits. The case was brought under Michigan law but was moved to federal court because other states were also involved.
An exception in Michigan's law that allowed the suits to proceed if a pharmaceutical company misrepresents information presented to the FDA was pre-empted by federal laws governing the regulation of pharmaceuticals, the district court said.
The 2nd U.S. Circuit Court of Appeals, based in New York, reinstated the suit. The appeals court disagreed that the exception in Michigan's law for cases involving fraud against the FDA was pre-empted by federal law.
That decision conflicted with other appeals court rulings in previous cases. Such conflicts in the federal appeals courts are one criterion the justices consider when deciding to take a case.
The Supreme Court's interest in weighing in on the federal pre-emption of state laws is rooted in a surge of product liability lawsuits in state courts, "particularly in the area of drugs and medical devices," said Paul Smith, an attorney at Jenner & Block.
The industry, Smith said, has sought to use pre-emption as a way to protect itself and "this court has a majority that is sympathetic to that view."
The justices have already agreed to hear a similar case, Riegel v. Medtronic, which focuses on whether the federal approval of a medical device shields the device from liability claims under state law.
The case is Warner-Lambert v. Kent, 06-1498. Oral arguments haven't yet been scheduled. The case will likely be decided before the Court's term ends in June.
Posted by Marcia Oddi on September 27, 2007 08:30 AM
Posted to Courts in generalInd. Decisions - More on: Supreme Court issues two anticipated mandate decisions today
Updating this ILB entry from yesterday (or simply scroll down one), Ben Zion Hershberg of the Louisville Courier Journal writes on yesterday's Supreme Court decision in Clark County Council and Clark County Auditor v. Daniel F. Donahue, Cecile A. Blau, Vicki Carmichael, and Steven M. Fleece, the probation fees case. Some quotes:
In a case watched closely by judges statewide, the Indiana Supreme Court said yesterday that Clark County's judges -- not the County Council -- have the authority to determine how to use about $500,000 in probation fees collected annually.The only coverage of the second Supreme Court opinion yesterday, In Re: Order for Mandate of Funds; Montgomery County Council v. Hon. Thomas K. Milligan, Hon. David A. Ault and Hon. Peggy Q. Lohorn, , dealing with court employee salaries, is this brief AP story, which reports:But the court also upheld the council's appropriation authority, saying the council can determine how much of the fees are spent from year to year.
Clark County Superior Court 3 Judge Steven Fleece called the decision a powerful victory for the judges and estimated the council will have to repay the local courts "several hundred thousand dollars" for spending fees on court costs that the Supreme Court said are not allowed.
But Scott Lewis, a lawyer for the council, said the ruling was "a split decision" because it said the council can decide how much will be appropriated for use by the courts in a given year. The council has more authority than the judges recognized in their arguments, he said.
Fleece responded, "If it was a split decision, it was split in our favor 99.9 percent and .1 percent" for the council.
David Lewis, a lawyer representing Clark County's four elected judges, said the ruling is an important victory for his clients and other judges across the state.
"It clarifies the relationship between the council and the judges" and gives the judges the authority to determine how the fees are used to support probation activities, said David Lewis, who is not related to Scott Lewis.
The Supreme Court did not determine how much money, if any, the council must repay the courts. That issue will go back to the trial judge for a ruling or may be settled by agreement between the council and the judges.
The dispute began in late 2004 when the council, struggling with a fiscal crisis, began appropriating probation fees to pay various court expenses.
The judges argued that state law strictly restricted the use of such fees to supplement the salaries of probation officers and probation program expenses at the discretion of the courts.
State law says such fees can't be used to replace county general fund money that is spent on the courts, the judges argued. Making the judges rely on fees raised from people being sentenced to pay a large part of court operating expenses would put their objectivity at risk, they said.
Special Judge Elaine Brown of Dubois County ruled in favor of the judges in March 2006, ordering the council to repay hundreds of thousands of dollars in probation fees the council appropriated for court expenses.
The council appealed, and after mediation failed, the Supreme Court heard arguments in December.
The Supreme Court agreed with most of the judges' arguments. In its decision, the court said, "The language of the statute itself and its legislative history make clear that it was contrary to law" for the council to use probation fees to pay court costs other than probation-related expenses budgeted by the judges.
Montgomery County officials must raise the pay of nine court employees to make their salaries more competitive with counterparts in other Indiana counties, the Indiana Supreme Court has ruled.The justices on Wednesday modified a judicial mandate issued in September 2006 by Special Judge Julian L. Ridlen of Cass Circuit Court. Ridlen's ruling upheld an August 2005 mandate issued by Montgomery County's three judges that required the county to increase pay for each court's reporter, administrative assistant and secretary/bailiff.
The judges said they were losing staff to higher-paying jobs, but county officials argued that the county could not afford the raises.
The state Supreme Court said judges can order that court employees be paid enough to attract and keep workers.
However, the raises it ordered for court employees were smaller than those in the original mandate.
Posted by Marcia Oddi on September 27, 2007 08:15 AM
Posted to Ind. Sup.Ct. DecisionsWednesday, September 26, 2007
Ind. Decisions - Supreme Court issues two anticipated mandate decisions today
This first decision is in the long-time dispute over the control of adult probation services funds, which has impact beyond Clark County.
In Clark County Council and Clark County Auditor v. Daniel F. Donahue, Cecile A. Blau, Vicki Carmichael, and Steven M. Fleece, an 8-page, 5-0 opinion, Justice Sullivan writes:
A dispute has arisen in Clark County over the purposes for which “probation users’ fees” collected from persons placed on probation can be spent and the authority for making those spending decisions. State law is clear that probation users’ fees may be spent only to supplement probation services and to supplement salaries for probation officers; they may not be used to re-place other funding of probation services. The county fiscal body shares authority for spending decisions with the courts in the county that provides probation services. * * *The ILB has posted many entries on this dispute. For background, start with this one from March 2, 2007.The dispute in this case is over the purposes for which money in the county supplemental adult probation services fund can be spent and the authority for making those spending decisions. The Clark County Council takes the position that it has the power to appropriate from the county supplemental adult probation services fund without the participation of county judges and that its use of the funds has not constituted the “replacement” of other funds. The judges of the Clark Circuit and Superior Courts take the position that county judges should decide how to spend the county’s supplemental adult probation services fund, and that the Indiana Code does not allow for money from the fund to replace money budgeted for probation services in prior years. * * *
Although we agree with the Clark County judges that the decision of the County Council to spend money in the supplemental adult probation services fund for general court and probation services violated the statutory restrictions that the money be spent only to supplement probation services and probation officer salaries, we do not agree with the judges that the County Council’s role with respect to appropriating money in the fund is purely ministerial. * * *
We have been gratified at the extent to which county fiscal bodies and courts throughout our state have been able to cooperate on the use of probation users’ fees. Probation departments, persons on probation, and the communities of this state have been the beneficiaries of this cooperation. We have attracted and retained high-quality probation officers by supplementing their salaries and have been able to keep many low-risk offenders who otherwise would have been incarcerated close to their families and in productive employment. We are hopeful that today’s decision clarifies the respective roles and responsibilities of the county fiscal bodies and the courts so that this highly productive degree of cooperation continues apace.
Conclusion. This case is remanded to the trial court with directions that the Clark County Council is to appropriate or otherwise return to the county adult probation services fund an amount, if any, equal to that expended from the fund for purposes other than to supplement probation services and probation officer salaries.
This second opinion today involves the more traditional issue of who sets salaries of court employees.
In In Re: Order for Mandate of Funds; Montgomery County Council v. Hon. Thomas K. Milligan, Hon. David A. Ault and Hon. Peggy Q. Lohorn, a 10-page, 5-0 opinion, Justice Sullivan writes:
Indiana Trial Rule 60.5 establishes procedures by which intra-county disagreements about court funding may be resolved. These procedures are infrequently invoked in Indiana. In this case, however, T.R. 60.5 has been called into play in a dispute about salaries for court staff in Montgomery County.For background on this case, see this Feb. 10, 2007 ILB entry, as well as this Feb. 22nd, 2007 entry about proposed legislation relating to judicial mandates and the Montgomery County dispute.For several years, the Judges of the Montgomery Circuit Court, Montgomery Superior Court 1, and Montgomery Superior Court 2 had requested that the Montgomery County Council increase the salaries of their employees to a level that would be competitive with court staff salaries in neighboring or comparable counties. Although the Council had approved salary increases approximating increases in cost of living indices in most budget years, no salary increase was granted in 2005.
After their efforts in 2004 to obtain salary increases failed, and following the loss within a relatively short time period of three Circuit Court staff members to, and the offer to the Circuit Court administrative assistant of, higher-paying jobs in both the public and private sectors, the Judges issued an order on August 16, 2005, and an amended order on August 22, 2005. As amended, the order directed the Council to show cause why the annual salaries for all Montgomery County court reporters, administrative assistants, and positions classified as “secretary/bailiff/receptionist” should not be increased to specified levels for the balance of 2005 and for the 2006 budget year. * * *
Part I. The issues to be decided in a mandate proceeding are whether the funds ordered paid are reasonably necessary for the operation of the courts and any court-related functions and whether any specific fiscal or other governmental interests are so severely and adversely affected by the payment as to require the order to be set aside. * * *
As noted above, salaries of court employees may be ordered paid at sufficient levels to attract and retain qualified persons. See Morgan Circuit Court, 550 N.E.2d at 1304. Mandated funds must be “reasonably necessary” for the operation of the courts, and a mandate may be issued when there is a “clear and present danger” of impairment to the courts’ operation. Id. * * *
Tables 1, 3, and 4 show that all but one of the salaries of Montgomery County court staff prior to the mandate were below the low end of the salary ranges of contiguous counties, and all of the salaries were below both the mean and median salaries of contiguous counties. However, the mandated salaries of $31,200 for court reporters and administrative assistants and $27,200 for SBRs exceed both the means and medians of the 2005 salary ranges in contiguous counties, by anywhere from several hundred dollars to several thousand dollars. Accordingly, while a mandate was warranted, it cannot be approved in the amounts requested.
We direct that the salaries of each category of employee be as set forth in the following table. [see opinion] * * *
Part II. Given that the proper delivery of judicial services is often at stake in T.R. 60.5 proceed-ings, this Court has recognized the necessity of proper compensation for attorneys who represent courts in such matters. Kramer v. Hancock County Court, 448 N.E.2d 1190, 1192 (Ind. 1983). At the completion of the trial in the present matter, counsel for the Judges submitted an invoice for legal services and expenses totaling approximately $128,300. The Council challenges this amount as excessive.
The amount of attorney fees awarded in T.R. 60.5 proceedings has occasionally been challenged, but not in the recent past. Perhaps as a consequence, the amounts at stake were far less than the amount involved here. * * *
This case was protracted, including as it did a full trial and all of the time and labor that requires. The hourly rates initially charged by the lawyers involved in the case were $320 by the senior-most lawyer involved, $190 by a second, and $140 by several law clerks assigned to the case. (The rates of the two lawyers were increased by $20 per hour during the course of the rep-resentation.) The senior lawyer testified that the firm’s billing rates are reviewed and adjusted annually by the firm based on factors including the type of work, degree of sophistication, years of practice, experience, and survey of other lawyers’ rates in the Indianapolis and Carmel areas. He further testified that an extensive amount of “legwork” was required to collect evidence on comparative salary data. There was no evidence that the firm was precluded from other em-ployment because of this representation. The substantial experience and superior reputation and ability of the lawyers here and of their firm are well known. * * *
We have examined the fee and expense request in some detail and note that it seeks $124,525 in fees and $3,772.79 in costs. The fee request is based on 574.25 hours. The Council does not contest the number of hours nor the amount of costs; its only request is that the hourly rate for the work be limited to the normal range for attorney fees in Montgomery County. Based on the factors set forth in the preceding two paragraphs and particularly on the fact that the Council does not contest the number of hours worked, we conclude that the attorney fee award shall be $72,810.29, calculated as set forth in the margin. * * * No appellate attorney fees shall be awarded. * * *
Conclusion. The order of the trial court mandating certain salary increases for employees of the Circuit and Superior Courts is affirmed to the extent set forth in part I of this decision. The request of counsel for attorney fees is affirmed to the extent set forth in part II.
Posted by Marcia Oddi on September 26, 2007 03:06 PM
Posted to Ind. Sup.Ct. DecisionsInd. Decisions - Three cases granted transfer today, including whether myspace.com postings are protected political speech
Three cases granted transfer today by the Supreme Court
Adkins v. State - The ILB summary to the COA opinion reads: "Henry J. Adkins appeals his conviction for pointing a firearm as a class D felony. Adkins raises two issues, which we restate as: I. Whether the trial court abused its discretion when it did not allow Adkins’s wife to testify as a witness; and II. Whether the trial court erred when it instructed the jury regarding the elements of the offense. We affirm."
Baxendale v. Raich - The very brief ILB summary to the COA opinion reads: "Valerie Baxendale appeals the denial of her request to relocate to Minneapolis that resulted in the modification of the custody of her eleven-year-old son, A.R., to her ex-husband, Samuel Raich, III. We reverse."
A.B. v. State - The ILB summary to the COA opinion sets out the issue: "Whether the message authored by A.B. and posted on a myspace.com website is protected political speech." See also this ILB entry from April 10, 2007, this one from July 17, 2007, and this one from Sept. 2, 2007.
Posted by Marcia Oddi on September 26, 2007 02:14 PM
Posted to Indiana Transfer ListsInd. Decisions - Court of Appeals issues 0 today (and 0 NFP)
As of 1:30 PM today:
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (0):
Posted by Marcia Oddi on September 26, 2007 01:26 PM
Posted to Ind. App.Ct. DecisionsInd. Courts - More on: Supreme Court asked to intervene in election dispute
Updating this ILB entry from Saturday, Sept. 22, in the case of 45 S 00 - 0709 - OR - 00366; STATE OF INDIANA EX REL LAKE CTY BD OF ELEC -V- LAKE SUP CT, the Gary Post Tribune reports today:
The state Supreme Court has ruled: Anthony Copeland can remain on the ballot for East Chicago City Council.Bill Dolan of the NWI Times writes:The court Tuesday denied a move by three Democratic council candidates and the Lake County Election Board to get a new hearing in their fight to halt Copeland's Independent candidacy for an at-large seat.
At-large candidates Richard Medina, Myrna Maldonado and Juda Parks wanted a change of venue after Lake Superior Court Judge Diane Kavadias Schneider ruled last week that Copeland's name could appear on the November general election ballot.
Kavadias Schneider overruled the election board, which had said Copeland couldn't run as an Independent because he currently holds an at-large seat as a Democrat.
In its ruling, the Supreme Court stated it would not be appropriate to address the plaintiffs' argument for a change of venue, because they made the request after Kavadias Schneider ruled.
EAST CHICAGO | The Indiana Supreme Court is reaffirming the right of City Councilman Anthony Copeland, D-at large, to run for re-election Nov. 6 as an independent candidate.Three city Democrats were challenging Copeland's campaign on grounds he couldn't run for a new term as an independent while continuing to hold his council seat under the Democratic party label.
The Lake County Board of Elections and Registration ruled against Copeland earlier this month and removed his name for the ballot.
Lake Superior Court Judge Diane Kavadias Schneider ruled last week Copeland's political strategy is proper under state law and returned him to the ballot.
The Supreme Court, in an order dated Tuesday, refused to review Kavadias Schneider decision.
Posted by Marcia Oddi on September 26, 2007 07:46 AM
Posted to Ind. Sup.Ct. DecisionsInd. Courts - Judge Tinder sails through confirmation hearing
Maureen Groppe of the Indianapolis Star Washington Bureau reports today:
The Indianapolis native's confirmation hearing was uncontentious and short, a contrast to the lengthy battles the president and Senate Democrats have had over some of the president's judicial nominees.Tinder received bipartisan backing from Indiana's senators, Republican Richard Lugar and Democrat Evan Bayh.
"He is the embodiment of good judicial temperament, intellect and even-handedness," Bayh said.
Lugar praised Tinder's opinions as "clear, well reasoned and thorough."The American Bar Association gave Tinder its highest rating of "well qualified."
The only questions for Tinder came from Sen. Richard Durbin, D-Ill., who chaired the hearing and praised Tinder's "excellent reputation."
But Durbin did ask Tinder about a racial discrimination case Tinder dismissed that was later reversed on appeal. Tinder said he made a mistake in ruling that there was not enough evidence for the suit to go forward.
"I was incorrect," he said.
Pointing out that Tinder has been reversed on some of the cases in which he has ruled against an employee, prison inmate or criminal defendant but never when he ruled in favor of them, Durbin asked whether that record suggests any tendencies.
"I try to look at each case on its own merits and don't approach any case with a predisposition on how it should come out," Tinder said, adding that he's handled thousands of cases and been reversed on few.
Asked what about his background would give a poor person hope that he would be treated fairly in Tinder's courtroom, Tinder noted that when he served as a public defender, he worked with criminal defendants, many of them indigent.
"I've been in their jail cells talking to them, waiting for the juries," he said. "I've been in their homes, investigating their cases, talking with their families. ... I've been there so that should give them some comfort."
The Senate Judiciary Committee could vote in the next month on whether to confirm Tinder to the appeals court, which serves Indiana, Illinois and Wisconsin and is one step below the Supreme Court.
Tinder was unanimously confirmed for his current position, which he has held since 1987, as well as when he was nominated to be U.S. attorney for Indiana's southern district in 1984.
Posted by Marcia Oddi on September 26, 2007 07:41 AM
Posted to Indiana CourtsCourts - Still more on: Outcome of Indiana cert petitions to SCOTUS - voter ID review gets nod
Stories today on the Indiana voter ID case:
"High court takes case on voter ID in Indiana: Ruling on state law may affect elections across the U.S." reported by Rob Schneider of the Indianapolis Star.
"Justices to consider voter IDs: Supreme Court agrees to rule on document required by Indiana," reported by David G. Savage in the Baltimore Sun.
"Supreme Court to Examine Lethal Injection, Voter Identification," written by Tony Mauro of Legal Times.
"Supreme Court to Consider Use of Voter ID: Justices Will Also Hear Lethal-Injection Case," reported by Robert Barnes of the Washington Post."Justices Agree to Hear Case About Voter ID Laws" by Linda Greehouse of the NY Times.
"High court takes voter-ID challenge: Justices to review state law in '08" reported by Sylvia A. Smith, Washington editor of the Fort Wayne Journal Gazette.
"Justices to rule on Indiana's voter-ID law: Critics call rule an unfair burden," reported by Grace Schneider of the Louisville Courier Journal.For background, start with this ILB entry yesterday.
For more on the lethal injection grant, yesterday, see "Ky. case may settle issue of execution: Lethal-injection drug combo challenged," reported by James R. Carroll of the LCJ.
Posted by Marcia Oddi on September 26, 2007 05:52 AM
Posted to Courts in general | Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions | Indiana LawInd. Courts - "Five attorneys — two Republicans and three Democrats — have applied for Jackson County’s newest judgeship"
Dan Davis of the Seymour Tribune reports, in a story that begins:
Five attorneys — two Republicans and three Democrats — have applied for Jackson County’s newest judgeship.Those applying were Republicans Bruce MacTavish and Stephanie Mellenbruch, both of Seymour, and Democrats Susan Darlage and Joseph M. Robertson of Seymour and Loren Reuter of Nashville.
Gov. Mitch Daniels’ staff is expected to review the applications, with interviews expected to take place sometime in October, Mary Ann Longwith of Daniels’ office said Monday afternoon.
Longwith said she was unsure whether all five applicants would be interviewed.
The appointee will fill the opening created when the Indiana General Assembly established a second superior court. The court must be running Jan. 1, 2008.
The job pays $119,893.80 annually, according to the Indiana Judicial Center.
Whoever the governor appoints, they’ll sit on the bench for three years and face election to a six-year term in 2010.
Posted by Marcia Oddi on September 26, 2007 05:47 AM
Posted to Indiana CourtsTuesday, September 25, 2007
Ind. Courts - More on: Federal District Judge John Tinder Senate hearings on nomination to 7th Circuit Tuesday, Sept. 25th
The time of the Tinder hearing has been changed to 3:30 PM. Try to listen to the hearing via this C-Span site, by selecting "Dicksen 226" at now 3:30 pm. Apparently audio only is available.
Posted by Marcia Oddi on September 25, 2007 03:21 PM
Posted to Indiana CourtsCourts - More on: Outcome of Indiana cert petitions to SCOTUS - voter ID review gets nod
Updating this ILB entry from earlier today, Reuters has this report this afternoon.
Lyle Denniston of SCOTUS Blog has an entry titled "Analysis: An election issue for an election year," here. A quote:
The Justices will be deciding on the constitutionality of an increasing popular form of balloting restriction: requiring those who show up at the polls to vote to first show a photo ID, such as a driver's license or a passport. In perhaps half of the states and in the federal government, such identification requirements have been written into law in varying forms -- defended by their sponsors as necessary checks upon voting fraud, assailed by their critics as cynical efforts to keep poor and minority (and likely Democratic) voters away from the polls.Posted by Marcia Oddi on September 25, 2007 03:09 PM
Posted to Courts in general | Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions | Indiana LawInd. Decisions - Supreme Court decides insurance assignment case
In State Farm Mutual Automobile Insurance Co. v. Ruth Estep, a 24-page, 3-2 opinion, Chief Justice Shepard writes for the majority:
In this motor vehicle collision case, defendant’s insurance carrier offered to pay policy limits even as it continued to defend its insured. Plaintiff refused the offer. A jury awarded damages above policy limits, and the carrier immediately paid on its policy.In proceedings supplemental, the trial court ordered the insured to assign any cause of action he might have against his insurer and directed plaintiff’s counsel to prepare the assignment. The assignment became a global one, which plaintiff deployed to sue both the carrier and defendant’s personal attorney. We held fifteen years ago, however, that assigning claims against lawyers is impermissible. Most of the reasons for that rule also pertain to involuntary assignments such as the one before us. * * *
The trial court’s order requiring Perkins’ forced assignment of his chose in action against State Farm was error. This does not in any way prohibit Perkins from directly suing State Farm or from voluntarily assigning his chose in action.
Conclusion. We reverse the order issued during proceedings supplemental forcing Perkins’ assignment of any potential chose in action against State Farm and hold invalid any assignment by Perkins against his attorneys.
Sullivan and Rucker, JJ., concur.
Boehm, J., concurs and dissents with separate opinion in which Dickson, J., joins. [which begins on p. 11 of 24]I agree with the majority that under this Court’s precedent in Picadilly, Inc. v. Raikos, 582 N.E.2d 338 (Ind. 1991), Perkins’s legal malpractice claims against his attorney Jerry L. Susong are not assignable. I also agree with the majority’s brief statement that because proceedings supplemental are “merely an extension of the underlying action, the merits of any assigned claim should not be tried in this limited forum.”
I dissent in part because I do not agree with the majority that State Farm should have been allowed to intervene in the proceeding supplemental. The Court of Appeals concluded that State Farm had a right to intervene pursuant to Indiana Trial Rule 24(A). The majority does not directly address intervention as of right but finds permissive intervention proper. I do not agree that State Farm should have been permitted to intervene pursuant to Indiana Trial Rule 24(B). I also disagree with the majority’s view that the trial court erred in ordering assignment of Perkins’s claims against State Farm. * * *
Finally, I believe the majority is mistaken in its concern that permitting involuntary assignments will result in widespread use of that technique. Most insureds cheerfully assign bad faith claims to settle with a plaintiff who obtains a judgment in excess of policy limits. In the rare case where that does not occur, the plaintiff/judgment creditor must evaluate the risks and potential rewards of pursuing a bad faith claim on behalf of an insured when the insured professes satisfaction with the insurer’s performance. The practical barriers to such a claim will deter many if not most such claims. I would permit the Estate to take its chances.
Dickson, J., joins.
Posted by Marcia Oddi on September 25, 2007 02:56 PM
Posted to Ind. Sup.Ct. DecisionsInd. Courts - 2007 Excellence in Public Information and Education Awards go to two judges
In a press release dated Sept. 24 and issued today:
Two trial judges were honored by the Indiana Judges Association for their outstanding efforts to educate the public about the working of the state’s judicial system, Judge Tom Felts of the Allen Circuit Court announced today.Judge Felts, president of the Indiana Judges Association, said the association solicited nominations from the judiciary and the public for its Commendations for Excellence in Public Information and Education Awards.
“These awards give us a wonderful opportunity to celebrate the very fine work done by judges across Indiana to help citizens gain a better understanding of the justice system,” Judge Felts said.
Judge John Rader of Warren Circuit Court received the award for Excellence in Public Information and Education. He was nominated by Judge Susan Orr Henderson of Fountain Circuit Court for his efforts to educate the community about the judicial system and the workings of his court. He writes a weekly column featured in the Review Republican in Williamsport, Indiana.
Judge Christopher Burnham of Morgan Superior Court #2 was also honored with a Special Merit Award for his cooperative efforts in working with the media during the John R. Myers murder trial in 2006. Judge Burnham created an innovative media plan that allowed reporters to have immediate access to court rulings and evidence presented during the trial, allowing for a smooth trial and minimal disruption to the operation of the Morgan County Courthouse.
The awards were presented during the Indiana Judges Association luncheon in Fort Wayne on September 20, 2007.
Posted by Marcia Oddi on September 25, 2007 01:09 PM
Posted to Indiana CourtsInd. Decisions - 7th Circuit decides Indiana case today
In USA v. Jeffrey Collins (SD Ind., Judge McKinney), a 5-page per curiam opinion, the panel of Coffey, Evans and Sykes writes:
Five years after Jeffrey Collins’s plea agreement and conviction, the government asked the district court to find him in breach of the agreement. In this appeal we review whether the district court had jurisdiction to do this, and if so, whether the district court’s finding of breach was clearly erroneous. We hold that the district court had jurisdiction, and that its finding was not clearly erroneous.Posted by Marcia Oddi on September 25, 2007 01:03 PM
Posted to Ind. (7th Cir.) DecisionsInd. Decisions - Court of Appeals issues 2 today (and 13 NFP)
For publication opinions today (2):
In Mark Dorman and Tracy Dorman v. Osmose, Inc. , a 14-page opinion, Judge Crone writes:
Mark and Tracy Dorman appeal the denial of their motion to correct error following the verdict in favor of Osmose, Inc., on their amended complaint alleging negligence and strict liability. We affirm.In Keith A. Adams v. Lisa A. Adams , a 9-page opinion dealing with an denial of a petition for modification of child support, Judge Sharpnack writes:Issues. The Dormans raise three issues, which we restate as follows: I. Whether the Dormans waived their claim that the trial court abused its discretion in deciding not to replace a juror; II. Whether the trial court abused its discretion in excluding certain language from Osmose’s brief submitted in a prior appeal; and III. Whether the trial court abused its discretion in instructing the jury on contributory negligence.
Because the trial court did not issue findings of fact and conclusions thereon, we do not know whether the trial court deviated from the Child Support Guidelines by imputing income to Keith. “There is a rebuttable presumption that an award of child support based on application of the Guidelines is the correct amount.” Sims v. Sims, 770 N.E.2d 860, 864 (Ind. Ct. App. 2002); Ind. Child Support Rule 2. “If a court concludes that a particular amount reached by application of the Guidelines would be unjust, then it must ‘enter a written finding articulating the factual circumstances supporting that conclusion.’” Sims, 770 N.E.2d at 864 (quoting Ind. Child Support Rule 3). “For this reason, the trial court was required to enter written findings detailing the circumstances making application of the Guidelines unjust.” Id. (citing Child Supp. R. 3). Therefore, we remand this cause to the trial court for entry of findings showing why application of the Guidelines would be unjust in the instant case. See, e.g., id.NFP civil opinions today (5):For the foregoing reasons, we remand for proceedings consistent with this opinion.
Matter of C.W. and S.R.; Patrice Roberson v. Marion County Department of Child Services and Child Advocates, Inc. (NFP) - "Under the facts and circumstances before us, DCS presented sufficient evidence to support the CHINS determination. Affirmed."
In Estate of William Garey v. Larry E. Geswein and South Capitol Properties, LLC (NFP), a 12-page opinion, Judge Crone writes:
The Estate of William Garey (“the Estate”) appeals the denial of its motion to correct error, following the trial court’s determination that the Estate committed actual or constructive fraud in making a real estate contract with Larry E. Geswein and South Capitol Properties, LLC (collectively, “Geswein”). We reverse and remand.North Side Service Center, Inc. and Henry Duncan v. Herbert Kulwin and Shirley Kulwin (NFP) - "North Side Service Center, Inc., and Henry Duncan (collectively, “North Side”) appeal the trial court’s denial of their motion for relief from judgment filed in the action brought against them by Shirley Kulwin and the Estate of Herbert Kulwin (collectively, “the Kulwins”), predecessors-in-interest to SMK Ventures, Inc. (“SMK”). North Side raises one issue, which we restate as whether the trial court abused its discretion by denying their motion for relief from judgment under Ind. Trial Rule 60(B)(7). We affirm."Issue. The dispositive issue is whether the trial court clearly erred in concluding that the Estate committed actual or constructive fraud. * * *
Geswein used the tires as an excuse to stop making payments on the contract. It is undisputed that the Estate fulfilled its contractual obligation to remove all tires from the property; any delay in removing the buried tires was due solely to Geswein’s refusal to allow the Estate to enter the property. On appeal, Geswein wisely does not argue that he was injured by any material misrepresentation regarding the buried tires or that his failure to make payments on the contract was otherwise legally justifiable. In light of the foregoing, we conclude that Geswein defaulted on the contract and that the trial court clearly erred in concluding that the Estate committed actual or constructive fraud. Therefore, we reverse and remand for a determination of the Estate’s damages and remedies pursuant to the contract, including the recovery of trial and appellate attorney’s fees.
Rose Mary Whitson and Joseph E. Whitson v. Diane West (NFP) - appeal of a decision of the small claims court, reversed. "Our review of the record reveals no basis for the judgment of $3230 in favor of Vest. At the time Fifth Third Bank repossessed the vehicle, Vest had enjoyed its use for two years and ten months. Fifth Third Bank sold the vehicle for $4283, an amount less than the amount still owed to Fifth Third Bank. The vehicle had a negative value, and therefore, as a matter of law, Vest could not have suffered a loss by reason of the bank’s repossession of the vehicle. * * * To suppose that Vest was unaware that failure to make the required payments would result in anything other than the bank’s repossession of the vehicle strains credulity. Further, we stress that throughout the years that Vest made payments to the bank, she enjoyed the full use of the vehicle. Based on the foregoing, we conclude that the judgment of the small claims court is clearly erroneous. Reversed."
James Hodapp and Sarah Hodapp v. Bartholomew Co. Dept. of Child Services (NFP) - termination, affirmed.
NFP criminal opinions today (8):
In State of Indiana v. Damon Lewis (NFP), an 8-page, 2-1 opinion, Judge Crone writes:
The State appeals the order granting the trial court’s motion to correct error, in which it vacated Damon Lewis’s convictions and habitual substance offender finding and ordered a new trial. We affirm.Lukuman Aderibigbe v. State of Indiana (NFP)Issue. The issue is whether the trial court abused its discretion in ordering a new trial. * * *
Here, the parties’ failure to establish during voir dire that Orcutt was related to Officer Berner, and the trial court’s refusal to allow further questioning of Orcutt once that information came to light, prevented all concerned from determining whether Orcutt could render a fair and impartial verdict. Under these circumstances, we cannot conclude that the trial court abused its discretion in ordering a new trial.
FRIEDLANDER, J., concurs.
BAKER, C. J., dissents with opinion. [which concludes] Concededly, Orcutt’s presence on the jury was not ideal. But I do not believe that this error—if it can be called an error—was so egregious that it caused the convictions. At the most, it was relevant only during the habitual offender proceeding, inasmuch as Officer Berner had no involvement whatsoever with the underlying charges. Consequently, I would reverse the trial court’s order awarding Orcutt a new trial.Jabe E. Stewart v. State of Indiana (NFP)
Christopher A. Turner v. State of Indiana (NFP)
Jess James Bumbalough v. State of Indiana
Charles G. Parsons v. State of Indiana (NFP)
Steven Paul Weaver v. State of Indiana (NFP)
Terry Stafford v. State of Indiana (NFP)
Posted by Marcia Oddi on September 25, 2007 12:26 PM
Posted to Ind. App.Ct. DecisionsLaw - NYT review of Charlie Savage's book on presidential power
Michiko Kakutani of the NY Times has a good review today of a new book the ILB has been reading, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, by Boston Globe reporter and Fort Wayne native Charlie Savage.
The ILB has had a number of earlier entries on Savage's Pulitzer Prize winning stories on presidential signing statements and the theory of the unitary executive.
From today's article:
Mr. Savage won a Pulitzer Prize this year for a series of articles he wrote for The Globe about executive power and Mr. Bush’s use of “signing statements,” which the president has attached to dozens of laws enacted by Congress, asserting his authority to disregard certain provisions because they conflicted with his interpretation of the Constitution. With “Takeover” Mr. Savage has expanded those articles into a book that is important reading for anyone interested in how the current administration has amped up presidential power while trying to undermine Congress’s powers of oversight and the independence of the judiciary. * * *But this volume is distinguished by his ability to pull together myriad story lines into a succinct, overarching narrative that is energized by his own legal legwork and interviews with key figures like John C. Yoo, a former deputy assistant attorney general, and Brent Scowcroft, who was national security adviser to the first President Bush.
Mr. Savage — who holds a master’s degree from Yale Law School — not only situates moves made by the current administration in historical perspective with earlier assertions of unilateral presidential power (made by the likes of Harry S. Truman and Nixon), but also shrewdly assesses those moves in terms of mainstream constitutional scholarship. * * *
At the end of this chilling volume Mr. Savage offers a concise and powerful conclusion: “The expansive presidential powers claimed and exercised by the Bush-Cheney White House are now an immutable part of American history — not controversies but facts. The importance of such precedents is difficult to overstate. As Supreme Court Justice Robert Jackson once warned, any new claim of executive power, once validated into precedent, ‘lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition embeds that principle more deeply in our law and thinking and expands it to new purposes.’
“Sooner or later, there will always be another urgent need.”
Posted by Marcia Oddi on September 25, 2007 12:14 PM
Posted to General Law RelatedCourts - Outcome of Indiana cert petitions to SCOTUS [Updated]
A pair of Indiana voter ID cases on the order list were granted cert:
07-21 ) CRAWFORD, WILLIAM, ET AL. V. MARION CTY. ELECTION BD., ET AL. )Thanks to SCOTUS Blog.
07-25 ) IN DEMOCRATIC PARTY, ET AL. V. ROKITA, IN SEC. OF STATE, ET AL.
The petitions for writs of certiorari are granted. The cases are consolidated and a total of one hour is allotted for oral argument. The brief of petitioners is to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Monday, November 5, 2007. The brief of respondents is to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Monday, December 3, 2007. A reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, December 28, 2007. Briefs of amici curiae are to be filed with the Clerk and served upon counsel for the parties on or before 2 p.m., 7 days after the brief for the party supported is filed, or if in support of neither party, within 7 days after the petitioners’ brief is filed.Here is early AP coverage.
Rick Hasen of Election Law Blog has this "breaking news" post.
[More] See also this entry from Ballot Access, which discusses the fact that "The Court did not say anything today about the Pennsylvania ballot access case, Rogers v Cortes, no. 06-1721."
The WSJ Blog has a new entry, with comments, here.
Posted by Marcia Oddi on September 25, 2007 10:08 AM
Posted to Courts in generalInd. Courts - More on: Federal District Judge John Tinder Senate hearings on nomination to 7th Circuit Tuesday, Sept. 25th
Reminder: Check here to watch the Tinder hearing at 2:30 pm.
Posted by Marcia Oddi on September 25, 2007 10:02 AM
Posted to Indiana Courts
