Thursday, November 01, 2007

Court - Reduced crack cocaine federal sentencing guidelines effective today

Erik Potter of the Gary Post-Tribune has the only Indiana story the ILB has seen on this. It begins:

New federal sentencing guidelines are set to go into effect today that will reduce the average sentence for a crack cocaine offense by 15 months.

The change, put in place by the U.S. Sentencing Commission, could be applied retroactively, which would mean an early release for more than 260 prisoners in Northern Indiana, and 19,500 nationwide.

"This is a clear recognition by Congress that the penalties imposed (for crack) were unfair," said Kerry Collins, a community defender at the federal courthouse in Hammond.

The reason for the sentence reduction is to address a disparity created in the 1980s when Congress established mandatory minimum sentences for drug crimes.

The law set up a system where crack cocaine -- which is made from powder cocaine -- carried much stiffer penalties than its powdered derivative.

A crime involving five grams of crack cocaine carries a mandatory sentence of five years in prison, and 50 grams carries a 10-year penalty. However, it takes 500 and 1,000 grams of powdered cocaine to trigger the same five and 10 year sentences.

That disparity has earned particular criticism because of the racial overtones it carries, as crack offenders are more likely to be black and powder cocaine offenders are more likely to be white or Hispanic.

For comprehensive coverage, see this Sentencing Law and Policy Blog entry from Oct. 31, including its many valuable links.

Posted by Marcia Oddi on November 1, 2007 02:02 PM
Posted to Courts in general

Ind. Courts - "The Perry Circuit Court has an immediate opening for a Magistrate"

Posted on the Indiana Courts website today is this announcement that begins:

The Perry Circuit County [sic.] has an immediate opening for a Magistrate. Perry County is a small, primarily rural county. The Court is located in beautiful Tell City on the Ohio River. The entire county is served solely by the Circuit Court, so the Judge and her Magistrate oversee every type of litigation. Compensation is $96,400 annually with excellent state benefits.

Applicants must have a current Indiana license in good standing. Applicants must have excellent verbal and written skills, able to make evidentiary rulings quickly, have a judicial temperament, with high energy. Applicants do not need to be residents of Perry County, but must be willing to relocate if the position is accepted.

Posted by Marcia Oddi on November 1, 2007 01:55 PM
Posted to Indiana Courts

Ind. Courts - Senate Judiciary committee approve Tinder nomination to 7th Circuit

Maureen Groppe of the Star Washington Bureau reports this afternoon:

WASHINGTON - The Senate Judiciary Committee today unanimously approved U.S. District Judge John Daniel Tinder's nomination to the federal appeals court.
The Indianapolis native must still be voted on by the full Senate.

Tinder was unanimously confirmed for his current position, which he's held since 1987, and when he was nominated to be U.S. attorney for Indiana's southern district in 1984. * * *

Tinder's nomination had the bipartisan support of Indiana senators Richard Lugar, a Republican, and Evan Bayh, a Democrat.

If approved by the Senate, Tinder would replace retiring Judge Daniel A. Manion on the 7th U.S . Circuit Court of Appeals.

For background, start with this Sept. 30th ILB entry, or see this list of all ILB entries including the name "Tinder."

Posted by Marcia Oddi on November 1, 2007 01:48 PM
Posted to Indiana Courts

Ind. Courts - "Malpractice complaint filed against Muncie attorney"

Rick Yencer of the Muncie Star-Press reports today:

MUNCIE -- A well-known Muncie attorney has been sued for malpractice over how he handled a local woman's estate.

Sharon Green, who retained attorney Bruce Munson to handle her late mother's estate, filed suit in Delaware County Circuit Court 3, seeking more than $40,000 in legal fees and other damages from Munson.

The suit claims that Munson, a former state lawmaker, advised Green and her siblings that there was no need to open a formal estate after her mother, Marjorie Conquest, died in 2001.

Munson proceeded to advise that a trust, managed by Green, could handle her mother's assets, consisting of real estate and other personal property valued at more than $300,000.

Green claims that Munson did not advise her to account for her activities, or keep her mother's assets separate from her own. That led to disputes between Green and her sister and brother, causing other litigation requiring more attorney fees, according to the suit.

Indianapolis attorney Lance Wonderlin, representing Green, said the assets should have been managed under a court-supervised estate. The suit claims Munson's advice was incorrect and constituted malpractice.

During an interview Wednesday, Munson disagreed with the complaint and said Green "was put through the wringer" by members of her own family.

"I have become a scapegoat for things that simply are not correct," said Munson, adding that the trust was properly organized and funded.

Posted by Marcia Oddi on November 1, 2007 01:41 PM
Posted to Indiana Courts

Ind. Courts - More on "Lawrence County Judge Found Dead In Home"

Updating this ILB entry from yesterday, Diana Wires reports today in the Bedford Time-Mail:

BEDFORD — The manner of Lawrence Circuit Court Judge Richard D. McIntyre’s death is “most consistent with self-induced,” according to the county coroner.

McIntyre, 51, Bedford, who has been Lawrence Circuit Court judge since 1988, was found unresponsive by his wife, Meredith, in the front seat of a 2007 GMC Yukon parked inside a detached garage at his home Tuesday evening.

“Judge Richard McIntyre’s cause of death is carbon monoxide poisoning,” Lawrence County Coroner John Sherrill stated in a formal statement issued this morning. “The manner of death is most consistent with self-induced.”

Sherrill declined to say how he reached that conclusion.

“Judge McIntyre’s death is a shock felt throughout the Indiana judiciary,” Indiana Supreme Court Chief Justice Randall T. Shepard said in an e-mail message sent to the Times-Mail Wednesday afternoon. “His integrity and energy made all the rest of us feel good about working in the courts. He lived in a way that offered an example to us all. Judges all around our state will keep Meredith and the McIntyre children in our prayers.”

What’s next. The Indiana Supreme Court will appoint a judge pro-tem to handle any pressing court matters in McIntyre’s court, said Supreme Court staff member Dave Remondini.

He expects that decision to be made soon, likely within the next week.

Lawrence Circuit Court is closed until Monday.

The judge pro-tem will hold the office until Gov. Mitch Daniels appoints someone to permanently fill the vacancy.

“It sort of varies (on how the pro-tem appointment is made),” Remondini said. “It depends on the size of the county and who is available and for how long the appointment might last. So if it’s, let’s say, only going to be a couple of days, in theory the court might appoint a judge from another court.”

Remondini said he was saddened to learn of McIntyre’s death. As a reporter for The Indianapolis Star, Remondini covered one of McIntyre’s campaigns for Congress. He specifically remembered a trip with McIntyre on a plane from Bedford to Evansville.

“Judge McIntyre has been a judge for a number of years, and was very well thought of,” Remondini said. “It was really shocking for us to get the news today, and we were just very saddened to learn about his passing. We’re just very concerned about his family.”

McIntyre was a member of the Indiana State Bar Association, Indiana Judges Association, Indiana National Guard, American Legion Gillen Post No. 33, F.O.P. and St. John’s Episcopal Church. He also was a State Judge Advocate and a former state representative.

He was appointed judge on Nov. 19, 1988, to complete the term of Linda Chezem, who resigned. He was elected to the bench in 1990 and re-elected in 1996 and 2002, each time running without opposition.

McIntyre is survived by his wife, Meredith McIntyre, of Bedford; two sons, Richard D. McIntyre Jr. of Vine Grove, Ky. and Robert David McIntyre of Richmond, Va.; one daughter, Emily Turner of Indianapolis; and one sister, Emily Hawkins of Bedford.

Arrangements. Visitation will be from 10 a.m. to 3 p.m. Friday in the Lawrence County Courthouse Rotunda and from 5 to 8 p.m. Friday at Ferguson-Lee Funeral Home.

Funeral services will begin at 10 a.m. Saturday in the Schafer Auditorium.

Here is the obituary.

Posted by Marcia Oddi on November 1, 2007 12:42 PM
Posted to Indiana Courts

Ind. Courts - Still more on the property tax challenge in Tax Court

Updating this ILB entry from Oct. 26th, the Evansville Courier & Press and the Louisville Courier Journal sent their reporters to cover the oral arguments yesterday before Tax Court Judge Thomas G. Fisher in a suit challenging the property tax, but the Indianapolis Star apparently did not.

Bryan Corbin of the C&P reports:

INDIANAPOLIS — A group of homeowners and taxpayer groups are challenging the constitutionality of Indiana's property tax system, but whether they get to argue the merits of their case depends on its first clearing a procedural hurdle.

The plaintiffs' attorney for the group of homeowners and taxpayer associations is asking Indiana Tax Court Judge Thomas G. Fisher to keep the lawsuit alive.

Attorneys for the state government, city of Indianapolis and Marion County are asking him to dismiss the case on procedural grounds. They contend the plaintiffs did not exhaust all the administrative remedies available to them before taking their case to court.

Wednesday, Fisher heard lengthy arguments on the government's motion to dismiss the case. He will issue a ruling within 10 days. If the judge decides to keep the lawsuit alive, then the plaintiffs plan to call witnesses at a hearing Nov. 16. * * *

The plaintiffs are asking Fisher to:

n Void the deadline extensions Gov. Mitch Daniels previously ordered that gave counties more time to adopt local-option income taxes to reduce their property taxes. The plaintiffs contend Daniels could not extend those deadlines administratively, that only the Legislature could.

n Overturn a recent 1.65 percent income tax increase in Indianapolis, because one of the Indianapolis City-County Council members who voted to adopt it should have been disqualified over his residency. That council member, Patrice Abduallah, later resigned.

The suit raises broader questions over the legality of statewide assessment methods and the use of tax abatement. It contends the current tax structure does not comply with the state constitution's requirement for a "uniform and equal rate of property assessment and taxation."

Fisher must decide whether to dismiss the case first.

Government attorneys Jon Laramore, Fred Biesecker and Andrew Swain argued the plaintiffs filed the constitutional challenge without trying to resolve their dispute by appealing to state agencies first. They contended the Indiana Tax Court does not have jurisdiction to hear the case, at least not yet.

Price, the plaintiffs' attorney, countered the constitutional issues are too broad to be decided by local tax boards or state agencies.

Lesley Stedman Weidenbener of the LCJ reports:

Attorneys representing the state asked a judge yesterday to dismiss a lawsuit challenging the constitutionality of Indiana's property tax system, saying the plaintiffs must first pursue their claims through state and local agencies.

Attorney Jon Laramore told Judge Thomas Fisher that state law requires residents to exhaust all administrative remedies -- such as appeals and petitions through agencies -- before they can come to the state tax court for help.

"Administrative agencies are fully capable of adjudicating complicated issues," Laramore said.

Attorney John Price, who represents the taxpayers as well as taxpayer groups from across the state, said, however, that those agencies don't have the authority to declare a law unconstitutional and are therefore not the correct venue for his clients' complaints. Requiring them to exhaust those remedies first would be expensive, time-consuming and foolish, he said. * * *

The arguments yesterday focused largely on Laramore's contention that Fisher doesn't have the authority to hear the case until the plaintiffs exhaust all their administrative options.

For example, he said, before the taxpayers can challenge the property tax system in court, they must first appeal their assessments to county boards and then to the Indiana Board of Tax Review. Only when that process is finished can they appeal to the tax court, Laramore said.

Also, he said, the taxpayers challenging an income tax increase in Marion County -- on the grounds that a deciding vote was cast by someone who shouldn't have been a member of the City-County Council -- should have first petitioned the Department of Revenue for relief.

The General Assembly set up those administrative remedies as first steps, Laramore said, because they allow for the settling of some claims without coming to court.

But Price said state agencies can only decide whether an assessment or a tax rate comports with state law. Overturning state laws as unconstitutional is only for a court to decide, he said.

Posted by Marcia Oddi on November 1, 2007 07:44 AM
Posted to Indiana Courts

Wednesday, October 31, 2007

Ind. Decisions - Court of Appeals issues 8 today (and 15 NFP)

For publication opinions today (8):

In Beverly R. Newman v. Jewish Community Center Association of Indianapolis, Inc., et al, a 24-page opinion, Chief Judge Baker writes:

Beverly Newman and her daughter, Julie Sondhelm, have an extremely volatile relationship, as detailed in our memorandum decision dismissing Newman’s appeal from the trial court’s denial of her petition for grandparent visitation with Sondhelm’s children, M.S. and K.S. In re Visitation of M.S. & K.S., (Ind. Ct. App. Jan. 24, 2007). While the harmful effects of Newman and Sondhelm’s relationship were initially confined to the immediate family, Newman has chosen to involve third parties by filing suit against numerous defendants, including appellees-defendants Jewish Community Center Association of Indianapolis, Inc. (the JCC), Nancy Riddle-Mills, Bev Brown, and Beth Grimm (collectively, the appellees). Newman’s latest complaint alleges claims for defamation and invasion of privacy by false light and intrusion.

Newman appeals from the trial court’s grant of summary judgment in favor of the appellees. Specifically, Newman argues that (1) the trial court erred by dismissing various defendants; (2) the trial court erred by dismissing Newman’s claim for invasion of privacy by intrusion; (3) the trial court abused its discretion during discovery; and (4) the trial court erred by granting summary judgment in favor of the appellees. Finding no error, we affirm the judgment of the trial court.

In Paternity of J.T.I., Elisabeth A. Irvin v. Delenore Q. Guyton, a 12-page, 2-1 opinion, Judge Barnes writes:

The sole issue we address is whether Irvin could be held in contempt where no rule to show cause was issued. * * *

Because there was no compliance with the rule to show cause statute, we reverse the trial court’s contempt finding against Irvin and remand for further proceedings consistent with this opinion.
Reversed and remanded.

ROBB, J., concurs.
KIRSCH, J., dissents with opinion. [that concludes] At the hearing on January 31, 2007, Mother was held in contempt not only for her failure to make the parties’ son available for visitation, but also for her failure to appear at the hearing. The majority correctly notes that a litigant’s failure to appear at a hearing has been deemed to be an indirect contempt. While the trial court also found Mother in contempt for her failure to comply with the Indiana Parenting Time Guidelines, it stayed such finding and ordered Mother to show cause why the order should not be carried out at a hearing to be held on February 7, 2007. In so doing, I believe the trial court fully complied with Indiana Code Section 34-47-3-5.

In Bryan Carson v. Cynthia Carson, a 6-page opinion, Cheif Judge Baker writes:

Appellant-petitioner Bryan E. Carson appeals the trial court’s order directing him to pay his daughter, Rachel’s, educational expenses, which included room and board at Manchester College (Manchester). Specifically, Bryan argues that the order was clearly erroneous because the evidence established that Rachel was twenty-one years old, resided with her mother—appellee-respondent Cynthia Carson—and commuted to class. Concluding that the evidence did not support the trial court’s decision ordering Bryan to pay a percentage of room and board expenses in accordance with Manchester’s fee schedule because Rachel does not reside on campus, we remand this cause to the trial court for a re-determination of those expenses.

In State of Indiana v. Kimco of Evansville, Inc., n/k/a KCH Acquisition, Inc., The Franklin Life Ins. Co., and Vanderburgh County, Indiana, a 17-page opinion, Judge Barnes wrties:

Case Summary. The State appeals the jury’s verdict in favor of Kimco, et al., in the amount of $2,300,000.00 for an appropriation of Kimco’s real estate in 2000. We affirm.

Issue. The State raises two issues, which we consolidate and restate as whether Kimco is entitled to damages for its loss of access to a public thoroughfare. * * *

Conclusion. Given these specific facts, we conclude that Kimco suffered a taking of its access rights as a matter of the law, and the jury properly determined the amount of damages for the taking suffered by Kimco for its loss of access. The trial court properly admitted evidence related to loss of access and properly instructed the jury regarding loss of access. Further, the jury’s verdict is not excessive because Kimco’s loss of access was a proper consideration when assessing damages. We affirm.

David Mark Frentz v. State of Indiana - "David Mark Frentz appeals his convictions and fifty-nine-year aggregate sentence for murder, class C felony methamphetamine possession, class C felony cocaine possession, and class D felony marijuana possession. We affirm."

Random Justice Phillips v. State of Indiana - "Random Justice Phillips appeals his conviction and sentence for possessing material capable of causing bodily injury by an inmate, a Class C felony. We affirm."

Brian K. Crain v. State of Indiana - "Brian K. Crain asks us to reverse his conviction of non-support of a dependent, claiming his waiver of counsel was not knowing, voluntary, and intelligent. Because his claim must be raised in a post-conviction petition, we dismiss his appeal."

Ruben Green v. State of Indiana - "Ruben Green was convicted of murder. He argues his retrial after a mistrial subjected him to double jeopardy, the trial court should have declared the second trial a mistrial, the jury was improperly instructed, and the evidence was insufficient for a conviction of murder. We affirm his conviction."

NFP civil opinions today (5):

Valerie Heuring v. All Star Construction (NFP)

Term. of Parent-Child Rel. of J.K., Michelle Kendall Bluck v. Monroe Co. Dept. of Child Services (NFP)

Roger D. Edwards v. Mary L. Edwards (NFP)

Termination of Parental Rights of J.C.; Jeffrey Collins v. Huntington County Department of Child Services (NFP)

Kenneth R. Beaudoin v. Judy Beaudoin (NFP)

NFP criminal opinions today (10):

Brian Tyler v. State of Indiana (NFP)

Michael Sakha v. State of Indiana (NFP)

Lawrence Smith v. State of Indiana (NFP)

Juan M. Castro, Sr. v. State of Indiana (NFP)

Michael W. Anderson v. State of Indiana (NFP)

Rory Patton v. State of Indiana (NFP)

Anthony Bean v. State of Indiana (NFP)

Ryan Baskett v. State of Indiana (NFP)

Dontae Sellars v. State of Indiana (NFP)

Jeffrey Rodriguez v. State of Indiana (NFP)

Posted by Marcia Oddi on October 31, 2007 12:10 PM
Posted to Ind. App.Ct. Decisions

Law - Two worth reading entries from WSJ Blog

" Should Law Schools Adopt the B-School Case Method?" posted Oct. 30, 2007 at 5:21 pm, with 42 comments so far.

"Law Blog News You Can Use: How to Get a BigLaw Job" posted Oct. 30, 2007 at 9:36 am, with 125 comments so far. The WSJ article by Amir Efrati that is quoted builds on his earlier articles.

Posted by Marcia Oddi on October 31, 2007 08:52 AM
Posted to General Law Related

Ind. Decisions - Still more on: 7th Circuit decides legislative prayer case, dismissing for lack of standing

Coverage this morning of the 7th Circuit's 2-1 decision yesterday in the legislative prayer appeal includes:

"House prayer ban falls on appeal: Court finds plaintiffs have no legal right to sue," reported by Niki Kelly of the Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – The 7th Circuit U.S. Court of Appeals ruled on Tuesday that Hoosier taxpayers have no standing to challenge the content of prayer given in the Indiana House chamber, a move that effectively ends restrictions that have been in place since 2005.

The decision remands the case with orders to dismiss it for lack of jurisdiction, though it can be appealed.

The court did not rule on the merits of the case – whether prayers offered at the podium to open legislation session can be sectarian or favor one religion.

Instead, the judges found in a 2-1 decision that the taxpayers who sued lacked legal standing to bring the case.

“The plaintiffs have not tied their status as taxpayers to the House’s allegedly unconstitutional practice of regularly offering a sectarian prayer,” the ruling said. “They have not shown that the legislature has extracted from them tax dollars for the establishment and implementation of a program that violates the Establishment Clause.”

The ruling goes on to acknowledge that a minimal amount of money is spent in the administration of the program but “the plaintiffs have not pointed to any specific appropriation of funds by the legislature to implement the program.”

The decision relied heavily on a recent U.S. Supreme Court decision. * * *

But the dissent in the case points out that nothing in the opinion should be construed as a ruling in favor of the House’s procedures.

“Should someone come along who meets the majority’s concept of standing, the question whether the House may sponsor prayers at state expense urging everyone in the chamber to adhere to Christianity, or edicts declaring the room a ‘hallowed place,’ or musical exhortations, revival-style, to ‘talk with Jesus,’ is an open one.”

"Limits on House prayers lifted: Plaintiffs don't have standing, court says," reported by Lesley Stedman Weidenbener of the Louisville Courier Journal. Some quotes:

A federal appeals court yesterday lifted a lower court's restrictions on prayers in the Indiana House that had banned ministers from referring to Jesus Christ or making other overt references to specific denominations.

The 7th U.S. Circuit Court of Appeals did not rule on whether such references are constitutional. Instead, it said the taxpayers who filed a lawsuit challenging past sectarian prayers did not have standing to do so.

The court said that the taxpayers had not shown that the state had a specific appropriation to fund the prayers or had "extracted from them tax dollars for the establishment and implementation" of government-backed religion. That was necessary to have the right to sue, the appeals court said.

"We are well aware of the time and energy that the parties and the district court have expended on the merits of this matter," the appeals court said. "However, if a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so." * * *

The dissenting judge in the ruling, Circuit Judge Diane Wood, wrote that her colleagues were too narrow in their definition of standing and should not have determined that an appropriation for the prayers had to be present for the taxpayers to be aggrieved.

"Under the majority's approach, even if the Speaker decides to start working his way through the Anglican Book of Common Prayer day by day, notwithstanding the presence of Jewish, Muslim, Hindu, Buddhist, and other legislators, staff, and constituents, nothing can be done to enforce the command of the Establishment Clause," Wood wrote.

"As long as a majority of the House is Christian, it is also reasonable to predict that the House itself will never take action to curb such a practice," she wrote.

The headline on the front-page of my printed Indianapolis Star this morning reads: "Court answers only part of House House prayer: Foes of sectarian prayers say ruling leaves door open for new appeal." Bill Ruthhart reports:

Sectarian prayers, including those to Jesus Christ, could return to the front of the Indiana House chamber after a court ruling Tuesday, but opponents warned of a legal challenge if that happens. * * *

Tuesday’s decision didn’t center on whether the prayers should be allowed. It focused more narrowly on whether the plaintiffs, a group of four taxpayers, had the legal standing to sue.

In its 2-1 opinion, the court ruled there were no expenditures directly tied to the prayers. Therefore, as taxpayers, the plaintiffs had no standing to sue.

But that doesn’t mean the legislature should resume its practice of sectarian prayers, said Ken Falk, an attorney for the ACLU of Indiana.

“The one bit of caution is that the 7th Circuit did not approve the prayer practices, and I would hope that the result of this is that the state does not go back to this practice of sectarian prayer,” Falk said. “If that would occur, there could be people who could bring litigation.”

Falk said his organization would not hesitate to file another lawsuit if approached by someone who “regularly attends the sessions and is subjected to the unwanted prayers.”

Under Tuesday’s ruling, he argued, such people would have the standing to sue.
“This doesn’t in any way make the practice any less unconstitutional than it was,” Falk said. “It just indicates that the people who brought this lawsuit, in the estimation of the two judges, were not the proper people.”

Bosma dismissed the threat of another suit.

“I’m sure the Civil Liberties Union won’t rest until all prayer is erased from every aspect of public life,” he said.

Bosma said he wasn’t concerned that the ruling wasn’t based on the case’s merits.

“We’ll take a win any way,” he said. “A hole in one is a hole in one no matter if it hits a tree or you hit it right in the cup.”

Falk said he is recommending his clients ask for Tuesday’s decision to be heard by the 7th Circuit’s full panel of 11 judges. Bosma said he’s confident the ruling would stand.

Carl Tobias, a constitutional law expert at the University of Richmond in Virginia, said he isn’t so sure.

“I think it is really a close case, and I think it will go to the whole court of the 7th Circuit to make the decision,” Tobias said. “A majority of that whole court might yet find that there is standing. So it’s not over yet.”

Judge Diane Wood, who wrote the dissenting opinion Tuesday, argued, “In my view, “the taxpayer-plaintiffs before us have alleged enough to win the right to present their challenges to the House prayer.”

Posted by Marcia Oddi on October 31, 2007 08:27 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Lawrence County Judge Found Dead In Home" [Updated]

From WBIW News this morning:

(BEDFORD) - A Lawrence County circuit judge is found dead in his home last night by Bedford police.

Major Dennis Parsley of the Bedford Police Department says they received a 911 call from the home of 51-year-old Judge Richard D. McIntyre, Sr. on Hill Drive in Bedford, regarding a potentially deceased individual.

Upon arrival, police confirmed the death of Judge McIntyre, who is a judge of the Lawrence County Circuit Court.

Lawrence County Coroner John Sherrill was called to the scene and assisted by Bedford officers. No other information has been released about the incident by press time.

[More] Here is an update posted on the Indy Star website:

BEDFORD, Ind. — A Lawrence County Circuit Court Judge has been found dead in his Bedford home.

Police have not released any information on the cause of death of 51-year-old Richard D. McIntyre Sr.

Police were called to his home just before 6 p.m. Tuesday and found McIntyre dead. * * *

McIntyre is survived by his wife and three children.

[Updated 12:37 PM] The Bedford Times-Mail has updated information here, including photos. The story, reported by Diana Wires, Bob Bridge and Roger Moon, begins:

BEDFORD — Lawrence Circuit Court Judge Richard D. McIntyre Sr., 51, was found dead at his Brook Knoll home Tuesday night.

Police received a call at 5:58 p.m., according to Bedford Police Department Maj. Dennis Parsley.

“I got a call saying Meredith (McIntyre’s wife) found him in the garage,” said Lawrence County Clerk Julie Blackwell Chase. “Rick was such a wonderful man. He was such a good friend, but then Rick was everyone’s friend.”

Lawrence County Coroner John Sherrill confirmed McIntyre died, and was found in a detached garage. No firearm was involved, but he would not elaborate on how McIntyre died.

Sherrill said a post-mortem examination will be conducted today, and further information will be available later today or Thursday. McIntyre’s death remains under investigation.

The Times-Mail also has a story headed "Jurists mourn McIntyre," reported by Mike Lewis and Mike Ricketts, here.

Posted by Marcia Oddi on October 31, 2007 08:17 AM
Posted to Indiana Courts

Ind. Courts - "Gary Judge springs lawyer without requiring bond"

Read the story by Lori Caldwell here in today's Gary Post-Tribune.

Posted by Marcia Oddi on October 31, 2007 07:32 AM
Posted to Indiana Courts

Ind. Decisions - More on "State has 128 days to retry Delph"

Updating this ILB entry from Oct. 27th, Shawn McGrath of the Anderson Herald Bulletin reports:

An attorney for Rex David Delph said Tuesday he is “99 percent certain” he will ask either that the Indiana Court of Appeals to review its ruling giving prosecutors 128 days to try the accused double murderer or that a higher court review the decision. * * *

The appeals court ruled on Friday that the Madison County Prosecutor’s Office has 128 days to try Delph on charges he intentionally set the May 2004 fire that killed his wife and son.

Madison Circuit Court Judge Fredrick Spencer tossed out the charges against Delph in December, ruling that prosecutors took too long to bring Delph to trial. In general, prosecutors have a year from when charges are filed to put the defendant on trial. The appeals court’s ruling effectively reinstated the charges against Delph. * * *

Madison County Prosecutor Thomas Broderick Jr., who took office a month after Spencer dismissed the charges, said he plans on filing a motion in the coming days asking the judge to set a trial date.

“Our plan is that we’re going to move forward on the case, regardless of what the defense is planning,” he said.

Broderick said that, if defense attorneys ask the appeals court to review its own decision, the deadline to try Delph continues to close. If the Indiana Supreme Court agrees to review the ruling, then the case will be put on hold.

Cleary said if the appeals court declines to review its decision, he can still seek to have the case transferred to the Indiana Supreme Court.

Posted by Marcia Oddi on October 31, 2007 06:39 AM
Posted to Ind. App.Ct. Decisions

Law - "Many Teens Don't Know the Law About Sex"

Shannon McCaffrey of the AP had a story yesterday, dateline Atlanta, that reported:

The tough Georgia law that sent Genarlow Wilson to prison for having oral sex with a fellow teenager has been watered down. But in Georgia — and in many other states — it's still a crime for teenagers to have sex, even if they're close in age.

Legal experts say it's rare for prosecutors to seek charges. But, as the Wilson case illustrates, they can and sometimes do.

And the rising popularity of sex offender registries can often mean that a teen nabbed for nonviolent contact with someone a year or two younger might face the same public stigma as a dangerous sexual predator.

"It's ludicrous," Wilson's lawyer B.J. Bernstein said. "In order to look tough on crime they (lawmakers) are criminalizing teen sex."

Wilson was freed Friday after the Georgia Supreme Court found that the 10-year mandatory sentence he received for having oral sex with a 15-year-old girl at a New Year's Eve party in 2003 when he was 17 was cruel and unusual punishment. He had served almost three years in prison.

Georgia's law has since been rewritten to make the same act a misdemeanor punishable by up to a year in prison.

Across the country, ages of consent range from 14 to 18.

Lawyers and health educators say most teens — and even many parents — are unaware that even consensual teenage sex is often a crime. The patchwork of laws and ages from state to state leaves many confused and critics say more education is badly needed.

"We do a disgraceful job of educating kids about the very real consequences that they face," said J. Tom Morgan, a former DeKalb County district attorney who has a new book coming out called "Ignorance Is No Defense: A Teenagers Guide to Georgia Law."

"If society is going to punish them as adults," said Morgan, "then society ought to educate them." * * *

Some states have moved in recent months to craft so-called Romeo and Juliet exceptions to prevent sexually active teenagers from being lumped together with child molesters.

Indiana changed its law so that teens in "dating relationships" would not be prosecuted. Exactly what that means is unclear, said Larry Landis, executive director of the Indiana Public Defender Council.

"I think there is a view now that 'hey, maybe we overdid it on the sex offender registry,'" Landis said.

Connecticut changed its law to stop prosecuting teens if the age gap is three years or less. And Texas has changed the way it classifies sex offenders so that some low-risk teens will no longer have to register.

For more on the Indiana law, see this ILB entry from July 8th and this one from July 16th.

Posted by Marcia Oddi on October 31, 2007 06:29 AM
Posted to General Law Related

Tuesday, October 30, 2007

Ind. Decisions - More on: COA issues ruling in Smith and Wesson case

Updating this ILB entry from yesterday, Diane Krieger Spivak of the Gary Post-Tribune reports today:

The city of Gary won an appeal Monday to allow its quest to make gun manufacturers liable for selling guns to criminals.

The ruling in the Indiana Court of Appeals could have national implications, the Brady Campaign to Prevent Gun Violence said.

The lawsuit names 16 firearms manufacturers.

Washington, D.C.-based attorney Brian Siebel, representing the city of Gary, said the manufacturers knowingly violated an Indiana public nuisance statute.

"Now we have to go to trial to prove it," Siebel told the Post-Tribune on Monday.

The ruling stems from a suit by Gary that resulted from a sting operation in 1998 that revealed that six northern Indiana gun dealers provided more than 60 percent of the crime guns recovered in Gary, Siebel said.

Some dealers were in the top 20 dealers in the United States selling crime guns.

"This is the first appellate court in the nation to rule on the scope of the federal gun industry shield law," Peter Hamm, representing the Brady Center.

Patrick Guinane of the NWI Times has more comprehensive coverage:

The City of Gary can move ahead with a 1999 lawsuit seeking to hold gun manufacturers responsible for the criminal misuse of their products, the Indiana Court of Appeals ruled Monday.

In a unanimous decision, the three-judge panel allowed the city's public nuisance lawsuit to go to trial despite a new federal law intended to shield the firearms industry from most liability claims.

The Protection of Lawful Commerce in Arms Act -- approved by Congress and the president in 2005 -- does not protect gun manufacturers and sellers from liability in cases in which they "knowingly" violated state or federal laws concerning the marketing and sale of their products. The Court of Appeals, citing a 2003 decision by the Indiana Supreme Court, ruled the city can pursue its claim that gun manufacturers intentionally ran afoul of the state's public nuisance law.

"This is not simply suing them because they sell guns," said Brian Siebel, a senior attorney with the Brady Center to Prevent Gun Violence. "This is suing them because they sell guns in a manner that supplies the criminal market."

Gary contends gun manufacturers aided the flow of illegal weapons by selling to distributors and dealers that facilitated "straw purchases" in which a third party, often a friend or relative, purchased handguns on behalf of a convicted felon. The city launched the lawsuit after an undercover investigation in which police officers claiming to be straw purchasers were allowed to buy numerous handguns and ammunition from region gun dealers.

Dozens of cities, including Chicago, filed similar lawsuits in the late 1990s, but only a handful remain alive in the courts. The Brady Center, which helped represent Gary in the suit, called Monday's decision "a landmark ruling with national implications" for pending cases in New York and Washington D.C.

Meanwhile, the firearms industry dismissed the appellate ruling as a minor setback and vowed to continue the court battle.

"Obviously, we're disappointed by the ruling because the City of Gary's lawsuit is precisely the kind of lawsuit that the Protection of Lawful Commerce in Arms Act is intended to stop," said Lawrence Keane, senior vice president and general counsel for the National Shooting Sports Foundation. "I'm confident that we will pursue all appellate remedies available to us to stop this lawsuit."

The gun manufacturers named in the lawsuit, including Beretta U.S.A. Corp., Glock Inc. and Smith & Wesson Corp., could ask for a rehearing from the appellate court or petition for a transfer to the Indiana Supreme Court. Attorneys for the city, meanwhile, will prepare for a trial in Lake County Superior Court.

Posted by Marcia Oddi on October 30, 2007 06:40 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 13 NFP)

For publication opinions today (1):

In Michael Hale v. State of Indiana , a 13-page opinion, Judge Vaidik writes:

Michael Hale (“Hale”) appeals his conviction for dealing in cocaine as a Class A felony and his fifty-year sentence. Specifically, he argues that the trial court erred in denying his motion for mistrial, the evidence is insufficient to support his conviction, and his sentence is inappropriate. Concluding that the trial court did not abuse its discretion in denying Hale’s motion for mistrial, the evidence is sufficient to prove that he knowingly or intentionally delivered cocaine in an amount weighing three grams or more, and Hale’s sentence is not inappropriate in light of the nature of the offense and his character, we affirm the trial court.

NFP civil opinions today (4):

Termination of the Parent-Child Relationship of N.R.L.S.; Corey Leonard Sneed v. St. Joseph County Department of Child Services (NFP) - "Corey Sneed appeals the trial court’s involuntary termination of his parent-child relationship with N.R.L.S., his minor child. On appeal, Sneed raises two issues, which we consolidate and restate as whether sufficient evidence supports the trial court’s conclusion that continuation of the parent-child relationship poses a threat to N.R.L.S.’s well-being. Because we conclude sufficient evidence supports the trial court’s determination, we affirm."

ITermination of the Parent-Child Relationship of C.N.; Valerie Newman and Josh Newman v. Scott County Department of Child Services (NFP) - "For the foregoing reasons, we affirm the trial court’s involuntary termination of Mother and Father’s parental rights to C.N."

In Old Paths Baptist Church, an Unincorporated Association, and John T. Lewis v. Dan Young, Duane Cleghorn, Bert Engler, et al (NFP), a 24-page opinion, Judge Robb writes:

Old Paths Baptist Church, an independent unregistered church in Campbellsburg, Indiana (“Old Paths”), appeals from the trial court’s judgment against it in its action against various individuals regarding a dispute over ownership of land. In addition, John Lewis, pastor of Old Paths, appeals from the trial court’s judgment against him on Nora Shepherd’s counterclaims against him. * * *

The trial court properly determined that there was an oral contract for the purchase of land and that part performance of the contract removed it from the requirements of the Statute of Frauds. Evidence adduced at trial supported the trial court’s order of specific performance and imposition of a constructive trust. The trial court’s findings regarding the legal descriptions of the three parcels of land were supported by the evidence. Lewis was not deprived of due process in the service of Nora’s counterclaims against him, and the trial court’s conclusion that Lewis should pay Nora’s attorney’s fees was not clearly erroneous. The judgment of the trial court is, therefore, affirmed.

Mirar Development, Inc. v. Leland Mark Scott (NFP) - "Mirar Development, Inc. (“Mirar”) appeals the judgment of the Lake Circuit Court in favor of Leland Mark Scott (“Scott”) in Scott’s action seeking payment for work performed as a sub-contractor on behalf of Mirar. Upon appeal, Mirar presents two issues, which we restate as: (1) whether the applicable statute of limitations bars Scott’s action; and (2) whether the amount awarded to Scott was proper.
We affirm."

NFP criminal opinions today (9):

Eddie G. Love v. State of Indiana - "Love’s argument is merely an invitation to assess the informant’s credibility and reweigh the evidence in his favor. This we may not do. Therefore, we affirm."

Robert Gaddie v. State of Indiana (NFP)

Jeremiah Kelley v. State of Indiana (NFP)

Stephanie J. Parman v. State of Indiana (NFP)

Brian Campbell v. State of Indiana (NFP)

Michael Bales v. State of Indiana (NFP)

Eddie G. Love v. State of Indiana (NFP)

Leroy McClain v. State of Indiana (NFP)

Christopher Culbreath v. State of Indiana (NFP)

Posted by Marcia Oddi on October 30, 2007 06:20 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: 7th Circuit decides legislative prayer case, dismissing for lack of standing [Updated]

Updating this ILB entry from earlier today, Bill Ruthhart of the Indianapolis Star reported this afternoon:

All prayers, including those to Jesus, once again can be given from the podium of the Indiana House.

The 7th U.S. Circuit Court of Appeals in Chicago ruled today to overturn the decision of a U.S. district court judge who ruled that sectarian prayers could not be offered from the floor of the Indiana House.

The initial decision, rendered by U.S. District Judge David Hamilton in November 2005, ruled that opening prayers in the House could not mention Jesus nor endorse a particular religion. Then House Speaker Brian Bosma, R-Indianapolis, appealed that decision and current Speaker B. Patrick Bauer, D-South Bend, decided to continue it.

The lawsuit challenging the House prayers was filed by the American Civil Liberties Union of Indiana on behalf of four citizens.

In a 2-1 ruling today, the appeals court said those plaintiffs did not have the standing to sue because public tax dollars could not be linked to the practice of prayer.

[Updated] See this entry by Robert Loblaw's Decision of the Day and this entry from Gary Welsh's Advance Indiana.

Posted by Marcia Oddi on October 30, 2007 06:09 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - In addition to legislative prayer decision, 7th Circuit issues two other Indiana decisions today

In Digrugilliers v. City of Indianapolis (SD Ind., Judge Barker), a 10-page opinion, Judge Posner writes:

The plaintiff is the pastor of the Baptist Church of the West Side, a small congregation (30 to 50 members) that conducts church services in a building that it has leased in a part of Indianapolis zoned C-1. Under the Indianapolis zoning code, the church’s building is a “religious use,” defined as “a land use and all buildings and structures associated therewith devoted primarily to the purpose of divine worship together with reasonably related accessory uses, which are subordinate to and commonly associated with the primary use, which may include but are not limited to, educational, instructional, social or residential uses.” City of Indianapolis Zoning Code § 735-751(b). A religious use is forbidden in C-1 districts without a zoning variance. So the City told the plaintiff that he would have to either apply for a variance, which would require a proceeding before the board of zoning appeals, see Ind. Code § 36-7-4- 918.4, or move his church. The plaintiff did neither, but instead brought this suit; he is authorized by the charter of the church to sue on the church’s behalf.

The suit charges that the requirement of obtaining a variance in order to make a religious use of land in C-1 districts violates the provision of the Religious Land Use and Institutionalized Persons Act of 2000 [RLUIPA], 42 U.S.C. § 2000cc et seq., that forbids a local government to “impose or implement a land use regulation in a manner that . . . . treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” § 2000cc(b)(1). The plaintiff moved for a preliminary injunction that the district court denied on the sole ground that the suit has negligible prospects of success. The plaintiff appeals from that denial. * * *

So the plaintiff’s claim that the City is violating the federal Act has at least some, and possibly great, merit. The district judge, having ruled that it had no possible merit, did not consider the other factors, besides the merits, that are germane to the decision whether to grant or deny a preliminary injunction. The judge would have been right to pretermit that inquiry had she been right that the claim had no merit; but we have seen that it has at least some merit, and no more is required to necessitate an inquiry into the balance of irreparable harms. Cavel International, Inc. v. Madigan, No. 07-2658, 2007 WL 2239215, at *4 (7th Cir. July 18, 2007). The balance seems to favor the plaintiff. If his church must vacate its premises while his case wends its way to completion, the church’s religious activities will be hampered. It is hard to see what difference it can make to the City if the church is allowed to remain in its current premises until final judgment (by which we do not mean the Day of Judgment). The church has been in its present premises since the middle of 2005, without, so far as appears, causing any trouble to anyone, including other users of land in its vicinity. But striking the balance of irreparable harms (the harm to the plaintiff if preliminary relief is denied, the harm to the City if it is granted) is a task for the district court in the first instance. REVERSED AND REMANDED.

In Holmes v. Buss (SD Ind., Judge McKinney), a 15-page opinion, Judge Posner concludes:

We do not prejudge the remand. As the petitioner’s lawyer concedes, the fact that a litigant is psychotic does not mean that he cannot assist in his case, United States v. Teague, 956 F.2d 1427, 1432 (7th Cir. 1992); Eddmonds v. Peters, 93 F.3d 1307, 1314 (7th Cir. 1996); Smith v. Armontrout, 865 F.2d 1502, 1506 (8th Cir. 1988) (en banc), especially at the appellate level. United States v. Roberts, 915 F.2d 889, 891-92 (4th Cir. 1990). Much of the time, even at the December hearing, the petitioner was lucid, even articulate. He has a good memory, at least a rudimentary familiarity with the legal process, knows who he is, where he is, etc.; and we take seriously the possibility voiced by Dr. Olive that the petitioner is malingering. If he is not malingering, however, he seems insanely preoccupied with a frivolous ground of appeal and oblivious to the other, more substantial, grounds that his lawyers wish to press, as well as severely distracted by fear of diabolical beings who are scheming against him, preventing him from reading any documents relating to his case. These matters require further exploration in the district court, pending which the appeals will remain on our docket. REMANDED

Posted by Marcia Oddi on October 30, 2007 01:56 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court grants rehearing and modifies opinion in Anglemyer

In Alexander Anglemyer v. State of Indiana, a 4-page ruling on a petition for rehearing, Justice Rucker writes:

The defendant-petitioner, Alexander J. Anglemyer, seeks rehearing following our decision affirming his sentences for robbery and battery. We grant rehearing solely to clarify that a defendant who pleads guilty does not forfeit the opportunity to claim on appeal that the trial court should have considered his guilty plea a mitigating circumstance even though the defendant failed to assert this claim at sentencing.

Posted by Marcia Oddi on October 30, 2007 01:49 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decides legislative prayer case, dismissing for lack of standing

The 7th Circuit has issued its long-awaiting decision today in the legislative prayer case, dismissing it for want of jurisdiction. [For background, see this long list of ILB entries.]

In Hindrichs v. Bosma [now styled Speaker of the House of Representatives] (SD Ind., Judge Hamilton), a 57-page, 2-1 opinion in the case argued Sept. 7, 2006 and issued Oct. 30, 2007, Judge Ripple writes:

Four Indiana taxpayers, Anthony Hinrichs, Henry Gerner, Lynette Herold and Francis White Quigley, brought this action against the Speaker of the House of Representatives of the Indiana General Assembly, challenging the House’s practice of opening each session with a prayer. The district court agreed with the plaintiffs that the practice of legislative prayer as implemented by the House violated the Establishment Clause and issued a permanent injunction. The Speaker timely appealed and sought a stay of the district court’s ruling pending full briefing before this court. We denied the stay but noted that our decision was based only on a preliminary understanding of the facts surrounding Indiana’s practice. See Hinrichs v. Bosma, 440 F.3d 393 (7th Cir. 2006). After briefing, oral argument and supplemental briefing, we now hold that the plaintiffs do not have standing to maintain this action. We therefore reverse the district court’s judgment and remand the action with instructions to dismiss for want of jurisdiction.

In the present case, the plaintiffs are challenging the practice of legislative prayer as implemented by the Indiana House of Representatives. It is clear from the parties’ stipulations that Indiana’s practice consists of a “Minister of the Day” program that involves the offering of a prayer by a member of the clergy with representatives filling in to offer the invocation only when “no cleric [is] present.” R.16 at 3. The program, as it is presently administered, is not mandated by statute. The origin of the practice is House Rule 10.2, and that rule merely provides that a prayer or invocation be given each meeting day before the House conducts any business. The manner in which the program is currently administered is a matter of House tradition, implemented at the discretion of the Speaker. Although there is some minimal amount of funds expended in the administration of the program, the plaintiffs have not pointed to any specific appropriation of funds by the legislature to implement the program. Furthermore, other than the costs of webcasting, the only costs incurred are postage for the sending of thank-you letters and pictures. These costs not only are unrelated to the content of the prayers offered, they are unnecessary for the administration of the “Minister of the Day” program.

Under these circumstances, we simply cannot conclude that the nexus requirements of Flast, as explained in Hein, have been met. The plaintiffs have not tied their status as taxpayers to the House’s allegedly unconstitutional practice of regularly offering a sectarian prayer. They have not shown that the legislature has extracted from them tax dollars for the establishment and implementation of a program that violates the Establishment Clause. The appropriations, which cover the incidental costs of the program, “did not expressly authorize, direct, or even mention the expenditures,” Hein, 127 S. Ct. at 2566, attendant to the “Minister of the Day” program. Instead, the plaintiffs allege only an “ ’expenditure of government funds in violation of the Establishment Clause,’ ” which the Court explicitly rejected as inadequate in Hein. Id. at 2565 (internal citations omitted). * * *

We are well aware of the time and energy that the parties and the district court have expended on the merits of this matter. However, “[i]f a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” Cuno, 126 S. Ct. at 1860-61.

Conclusion. For the foregoing reasons, we reverse the district court’s judgment, and we remand the case to the district court with instructions to dismiss for want of jurisdiction. The Speaker may recover his costs in this court.

[Dissent by Judge Wood beginning on p. 33, concludes on p. 56-57] In my view, the taxpayer-plaintiffs before us have alleged enough to win the right to present their challenge to the House Prayer before a judicial forum. They are challenging a legislative act, and they have alleged concrete pocketbook injuries. Given both the ruling in Marsh and the qualifications on that ruling, the issue they wish to present is a serious one. They argue, in essence, that preferential access to the Speaker’s stand for adherents to the Christian faith is exactly the kind of problem that the First Amendment’s Establishment Clause was supposed to remedy. Were this a simple Establishment Clause case in which they complained about hearing the prayers as they walked past the door of the House Chamber on their usual way to work, they may very well have been entitled to proceed. The majority overextends the command of Freedom From Religion in denying them a day in court. I respectfully dissent.

Posted by Marcia Oddi on October 30, 2007 12:37 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Diversion programs may come under question [Updated Twice]

The ILB has had a number of entries on court diversion programs. Here, for instance, from an Aug. 28th entry, is a quote from an editorial in the Evansville Courier & Press that begins:

There was a time when people who committed crimes while under the influence of drugs or alcohol would serve their sentences and then be released — right back into the environment that led them to jail in the first place.

Increasingly, however, the criminal justice system recognizes that alcohol and drug offenders need follow-up treatment and monitoring to prevent them from relapsing into the same criminal conduct.

That's the rationale behind Vanderburgh County's Day-Reporting Drug Court, founded and administered by Superior Court Judge Wayne Trockman.

Yesterday, Indianapolis' WIBC News posted a story by Eric Berman on the topic:

Prosecutors will have to account for diversion programs that let you keep traffic violations off your record, if a legislative study committee recommendation becomes law.

Most Indiana prosecutors let you avoid a traffic fine by paying a fee instead. The prosecutor's office keeps the money, and as long as you don't break the law again, your record stays clear.

Senator Tom Wyss (R-Fort Wayne) complains no one checks to make sure you didn't slip up. And he says he's seeing too many drunken-driving charges reduced to reckless driving, and then dropped through diversion. Wyss says that sends the wrong message about the seriousness of DUI.

Drunken driving has been Wyss's signature issue in the Senate. He spearheaded the lengthy battle to lower the legal blood-alcohol limit to .08%.

Wyss charges some prosecutors are letting truckers into diversion programs, even though federal law specifically prohibits that. The study committee he chairs [ILB - see information at the end of this entry] wants prosecutors to turn over an annual list of every vehicle-related charge they file and what happens to them.

Re truckers, see this Aug. 15 ILB entry.

The legislative committee charged with studying the issue is the Forensic Diversion Study Committee, which according to press reports quoted by the ILB, heard a number of judges and others testify on forensic diversion programs. Unfortunately, as is the case with most other interim legislative committees, the information made available to the public is sketchy at best. Here the only items posted are meeting agendas and the names of the members.

Senator Wyss is not on the Forensic Diversion Study Committee. He does chair the Interim Study Committee on Transportation Matters, which apparently is to be the source of these legislative recommendations on forensic diversion programs.

[Updated 10:00 AM] The ILB has received a communication from the Honorable Thomas J. Felts, Judge, Allen Circuit Court, who is also head this year of the Indiana Judges Association:

I know this is a topic that has had much discussion in the past and will likely have more this session. One correction I did want to point out, though, is that the Forensic Diversion Study Committee has no connection with the type of "diversion" programs mentioned in your posting. I was a member of the initial Study Committee appointed by then-Gov. Kernan and have served on the Committee ever since. Forensic Diversion is a statutory process whereby those with diagnosed mental health and/or substance abuse disorders are identified early in the criminal justice process and, depending on the county, are required to participate in specific treatment-related programming. In our program in Allen County, the "diversion" aspect is diversion from the Department of Corrections (who provided funding for pilot programs in 6 counties which run through next Spring) - not diversion such as the type I believe Sen. Wyss is discussing (reckless driving, etc.).

The ILB certainly appreciates the clarification.

[Updated again at 11:45 AM] The Honorable David Chidester, Porter Superior Court IV, agrees, writing: "Forensic Diversion is not Senator's Wyss's target. It is pre-trial diversion through the prosecutor's office." He continues:

I am involved in a case where defense counsel has challenged the court's authority to determine compliance with a pre-trial diversion agreement. Sua Sponte, I re-docketed the matter to begin as a new pending criminal case. The defense attorney has moved for a change of judge, citing my sua sponte prejudice. I issued the attached Order, finding that judges do have authority to check compliance with pre-trial diversion. But, the matter would be clear if Senator Wyss would include 3 key provisions in the pre-trial diversion statute:

1. Allow judges discretion to reject a pre-trial diversion;
2. Allow judges to control compliance and re-docket if the pre-trial diversion agreement fails;
3. Mandate that if a defendant fails in his/her pre-trial diversion, he/she may not be allowed to re-enter a diversion program;
4. Mandate that a pre-trial diversion may not be applied to a lesser charge; (that would cure the reckless driving from DUI issue).

The reason the prosecutor should not determine compliance is that often, they are protective of their agreement and won't re-docket even if they know the agreement has been breached. I would also split the fee the prosecutors receive for the pre-trial diversion in half, with 1/2 to the prosecutor and 1/2 to the county general fund, as Courts spend a lot of time on diversion agreements and the prosecutors reap 100% of the deal. I hope to reach Senator Wyss soon.

Posted by Marcia Oddi on October 30, 2007 07:21 AM
Posted to Indiana Courts

Monday, October 29, 2007

Ind. Law - Rochester Indiana's Ted Waggoner quoted in Nov. ABA Journal

"Charging by the Slice: Value billing shows that breaking up (the case) isn’t hard to do" is the title of a feature story by Margaret Graham Tebo in the November issue of the ABA Journal. Here is how the story begins:

Blame it on Abraham Lincoln. The 16th pres­ident is often credited with the adage “A lawyer’s time and advice are his stock-in-trade.” True enough. But the question is still how to charge a client for that.

For as long as there have been lawyers, it seems, legal services have been charged by the hour.

But new technology means lawyers can be more efficient, and lawyers must serve more clients to keep billable hours up. And to many lawyers, doing the job more quickly doesn’t mean the work is worth less.

Enter value billing, a relatively new idea that’s making its way to many solos and small-firm practitioners. Lawyers break a case into its component parts, charging a specific fee for each segment. The client can stop after any segment if she doesn’t have the next payment or doesn’t think it’s worth continuing. It also prevents the lawyer from doing work before getting paid.

For example, says Ted Waggoner of Rochester, Ind. [pictured here], he might tell a client that for a certain fee he will make calls and write letters to settle a case. If the case doesn’t settle, he will conduct discovery for another set fee. If the case still doesn’t settle after discovery and the client wishes to continue and file the lawsuit, a third specific fee will be due.

“People don’t often understand the value of what you do,” Waggoner says. “Now I spend more time talking to potential clients to get a feel for what the case is worth to them.”

Waggoner is quoted again later in the story.

Posted by Marcia Oddi on October 29, 2007 02:45 PM
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

Smith & Wesson Corp., et al & United States of America v. City of Gary, Indiana by its Mayor Rudy Clay - see ILB summary here, prepared earlier today.

In Mark A. Kline v. State of Indiana, a 7-page opinion, Judge May writes:

Mark A. Kline challenges his sentence for multiple counts of sex offenses against minors, arguing it exceeded the judge’s authority. We agree and remand for resentencing. * * *

Kline did not file a belated appeal for the purpose of taking advantage of the new rule in Blakely. He raised other valid claims, which resulted in his case being remanded for resentencing in a post-Blakely world. If Kline must be resentenced, we see no reason why the trial court should not comply with the current state of constitutional law. Therefore, on remand, the trial court may not enhance Kline’s sentence based on additional facts “unless those facts are either (1) a prior conviction; (2) facts found by a jury beyond a reasonable doubt; (3) facts admitted by the defendant; [or] (4) facts found by the sentencing judge after the defendant has waived Apprendi rights and consented to judicial factfinding.” Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007).

This case is remanded for resentencing in accordance with this opinion and the terms of the original plea agreement.

In Henry Banks, Jr. v. Dick Brown, C. Kinnaman, Sheryl Keyes, Janice Snider, Craig Hanks, a 4-page opinion (with high-powered counsel arguing on behalf of appellant), Judge May writes:

Henry Banks, Jr. appeals the judgment of the small claims court, arguing he is entitled to reimbursement from the State for his costs. We affirm. * * *

Costs are punitive in nature. City of Hammond v. Conley, 498 N.E.2d 48, 53 (Ind. Ct. App. 1986). Banks’ claim was brought pursuant to the Indiana Tort Claims Act, which prohibits awards of punitive damages against the State: “A governmental entity or an employee of a governmental entity acting within the scope of employment is not liable for punitive damages.” Ind. Code § 34-13-3-4(b). Accordingly, Ind. Code § 34-13-3-4(b) prohibits the assessment of costs against the State. For these reasons, the court’s order denying Banks’ request for costs is affirmed.

NFP civil opinions today (6):

Molly Allen, Joe M. Gilstrap, et al. v. Great American Reserve Insurance Company and CONSECO Insurance Company (NFP) - "The determinations by this court and our Supreme Court that the Flex II policy had a front-end load are the law of the case, and the trial court was obliged to so find in considering the subagents’ amended complaint on remand. We accordingly affirm.
Affirmed."

In Re the Matter of the Involuntary Commitment of R.K. (NFP) - "The trial court found that R.K. was gravely disabled, and the trial court’s commitment order represents a conclusion that a reasonable person could have drawn and was sufficiently supported by clear and convincing evidence."

Steven B. Sexton v. Deborah L. Sexton (NFP) - "Steven B. Sexton appeals the division of marital property in the dissolution of his marriage to Deborah L. Sexton. He claims the court erred in finding certain of his retirement benefits were vested and erred in dividing the marital assets equally between the parties. We affirm."

Frank Polston v. Donna Jean Polston (NFP) - "Frank Polston appeals the order dissolving his marriage of twenty-nine years to Donna Jean Polston. Frank claims the court abused its discretion when it divided the marital estate equally and declined to award him spousal maintenance. We affirm."

James Jason Boren v. Valerie L. Boren (NFP) - "We conclude that the trial court did not err in denying Father’s petitions for contempt and to terminate parenting time, granting Mother’s petition to modify parenting time, and rescinding its order appointing a CASA."

Aaron (Israel) Isby v. Allen Finnan (NFP) - "Aaron (Israel) Isby appeals the Allen Superior Court’s determination it did not have jurisdiction over his motion for writ of habeas corpus. Because exclusive jurisdiction over his motion lies in Sullivan County, we affirm."

NFP criminal opinions today (2):

Simon Wills v. State of Indiana (NFP)

Benny Knight v. State of Indiana (NFP)

Posted by Marcia Oddi on October 29, 2007 12:10 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - COA issues ruling today in Smith and Wesson case

Oral arguments were heard by the COA earlier this month in the case of Smith and Wesson Corporation, et al v. Town of Gary, et al. Today the COA has issued its ruling, notable in part for the 3 pages of names lined up on the side of Smith & Wesson:

In Smith and Wesson Corporation, et al v. Town of Gary, et al, a 24-page opinion, Judge Sharpnack writes:

Smith & Wesson, et al. (“Manufacturers”), bring this interlocutory appeal from the trial court’s denial of their motion to dismiss or, in the alternative, motion for judgment on the pleadings in the action brought by the City of Gary, Indiana (“City”). The Manufacturers raise two issues, which we restate as:

I. Whether the Protection of Lawful Commerce in Arms Act (“PLCAA”), 15 U.S.C. §§ 7901-7903, bars the City’s nuisance claims; and

II. Whether the PLCAA violates the Due Process Clause, separation of powers principles, and the Tenth Amendment.

Because we conclude that the PLCAA does not bar the City’s claims, we need not address the constitutional issues. We affirm. * * *

Indiana’s public nuisance statute was a legislative enactment, which the Indiana Supreme Court interpreted as applying to the City’s claim. Thus, we conclude that the City’s claim is not an attempt to expand the common law and that it is not an attempt to circumvent the legislative branch of government. * * *

Based on the language of the predicate exception, the specific context of the predicate exception, and the broader context of the PLCAA, we conclude that the predicate exception is unambiguous. Because the City’s complaint and the Indiana Supreme Court’s opinion indicate that the City alleged that the Manufacturers “violated a State or Federal statute applicable to the sale or marketing of the product,” we conclude that the City’s action falls under the predicate exception and is not barred by the PLCAA. Because we conclude that the predicate exception applies and that the PLCAA does not bar the City’s claims, we need not address the remaining issues.

For the foregoing reasons, we affirm the trial court’s denial of the Manufacturers’ motion to dismiss or, in the alternative, motion for judgment on the pleadings in the action brought by the City.

For background on the case, start with this ILB entry (2nd half) from Sept. 8th, including links to the Indiana Supreme Court's 2003 ruling and then Lake Superior Court Civil Division 5 Judge Robert Pete's Oct. 6, 2006 ruling that "a year-old federal law shielding gun makers from lawsuits" was unconstitutional.

Posted by Marcia Oddi on October 29, 2007 11:42 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Upcoming oral arguments this week

[Note: The information below is compiled each Monday morning from the online court oral argument calendars and the court oral arguments online website.]

This week's oral arguments before the Supreme Court:

This Thursday, Nov. 1st:

9:00 AM - Querrey & Harrow v. Transcontinental Ins. Co. - Transcontinental, an excess insurer, filed a legal malpractice claim against the attorneys who had represented the insured in an earlier case. The Lake Superior Court denied the attorneys' motions for summary judgment. In this interlocutory appeal, the Court of Appeals reversed and held that the attorneys could not be held liable to Transcontinental and were entitled to summary judgment. Querrey & Harrow, Ltd. v. Transcontinental Ins. Co., 861 N.E.2d 719 (Ind. Ct. App. Feb. 19, 2007), vacated. [See ILB entry here.] The Supreme Court has granted a petition to transfer and has assumed jurisdiction over the appeal. Attorneys for Querrey & Harrow; Robert Brown of Merrillville, IN and James Stamos and George Hoffman of Chicago, IL. Attorney for Sanders Pianowski, LLP; Edward Hearn of Highland, IN. Attorneys for Transcontinental Ins. Co.; Andrew Crosmer of Dyer, IN and Gary Grasso of Burr Ridge, IL.

9:45 AM - Emma McPeek v. Charles McCardle - McPeek sought a declaration that the marriage of her late mother to McCardle, which was licensed in Indiana but solemnized in the State of Ohio, was invalid. The Circuit Court of Ohio County, Indiana, dismissed the lawsuit after concluding that the marriage was voidable, not void, and could not be challenged by McPeek. The Court of Appeals affirmed, concluding that our statutes do not require that a marriage licensed in Indiana be solemnized in Indiana and, alternatively, that the alleged defect would not render the marriage void. McPeek v. McCardle, 866 N.E.2d 387 (Ind. Ct. App. May 17, 2007), vacated. [See ILB entry here.]The Supreme Court has granted a petition to transfer and has assumed jurisdiction over the appeal. Attorney for McPeek: Leanna Weissmann, Lawrenceburg, IN. Attorney for McCardle: Alison T. Frazier, Dupont, IN.

10:30 AM - Sergio Campos v. State - After a routine traffic stop, police found cocaine in the truck of a vehicle in which Campos was a passenger, and Campos was charged with dealing in cocaine. The Lake Superior Court denied Campos’s motion to suppress the cocaine and a recording of statements by Campos during the search. The Court of Appeals affirmed in Campos v. State, 867 N.E.2d 676 (Ind. Ct. App. June 7, 2007). Campos has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorney for Campos: Kathleen Sweeney, Indianapolis, IN. Attorney for State: Ann L. Goodwin, Indianapolis, IN.

Webcasts will be available here.

This week's oral arguments before the Court of Appeals that will be webcast:

This Wednesday, Oct. 31st:

1:30 PM - Michael A. Linton, M.D., v. Lawanda Davis - Appellant, Dr. Linton, requests this court to decide three issues, raised as matters of first impression in Indiana: (1) Whether the trial court abused its discretion by admitting into evidence testimony regarding the proceedings and rulings of the Indiana Medical Licensing Board; (2) Whether the trial court abused its discretion by excluding from evidence the Indiana Medical Review Panel's statutory determination not to forward Dr. Linton's name to the Medical Licensing Board; and (3) Whether the trial court abused its discretion by disallowing Ivanka Prcevski (nurse Prcevski), called as a skilled lay witness pursuant to Ind. Evidence Rule 701, to testify about her interpretation of the baby's well-being during Davis' labor and delivery. The Scheduled Panel Members are: Judges Sharpnack, Riley and Kirsch. [Where: Indiana Supreme Court Courtroom.]

Webcasts will be available here.

This week's oral arguments before the Court of Appeals that will NOT be webcast (unless otherwise noted, arguments take place in the Indiana Court of Appeals Courtroom):

This Monday, Oct. 29th:

12:00 PM - Shafer & Freeman Lakes Conservation Corp. v. Justin Stichnoth - Justin Stichnoth and his wife filed a complaint alleging that the negligence of Shafer & Freeman Lakes Environmental Conservation Corporation caused the injuries that Justin sustained when he dove into Lake Shafer from his parent's dock and struck a dredge pipe that had been installed in the channel. Justin's parents and an engineering firm were later added as nonparties. At the close of trial, a jury assessed 50% fault to the Corporation. On appeal, the Corporation contends that the trial court (1) should have granted its summary judgment motion on the issue of whether Justin was a licensee when he dove into the lake; (2) should have granted the Corporation's request to hold separate trials on liability and damages; (3) should not have permitted an expert's testimony regarding Justin's earning capacity; and (4) should have allowed the Corporation to withdraw its nonparty defense. The Scheduled Panel Members are: Judges Najam, Mathias and Bradford. [Where: Moot Court Room of the Indiana University School of Law in Bloomington.]

This Tuesday, Oct. 30th:

1:00 PM - Andre Deshazier v. State of Indiana - Andre Deshazier was convicted of carrying a handgun without a license, a Class C felony, two counts of resisting law enforcement, a Class D felony and a Class A misdemeanor, and possession of marijuana, a Class A misdemeanor. He was sentenced to an aggregate sentence of twelve years. Deshazier appeals, contending the evidence was insufficient to convict him of carrying a handgun without a license; his sentence exceeds that allowed by statute for crimes committed in "an episode of criminal conduct"; and he was subjected to double jeopardy by being convicted and sentenced for two counts of resisting law enforcement. The Scheduled Panel Members are: Judges Kirsch, Robb and Barnes. [Where: Benton Central High School, Oxford, Indiana]

1:00 PM - Jet Credit Union vs. John V. Loudermilk, et al, - Jet Credit Union believed Loudermilk, a director and officer, committed acts of malfeasance and caused Jet financial losses. It did not allow Loudermilk to withdraw funds he had on deposit with Jet while it was trying to determine Loudermilk's financial liability. The trial court determined Jet could not withhold the money, and Jet released it. Loudermilk later sued Jet for criminal conversion and obtained summary judgment, which Jet appeals. The Scheduled Panel Members are: Judges Sharpnack, Bailey and May.

This Wednesday, Oct. 31st:

11:00 AM - Terrance A. Hood vs. State of Indiana - Terrance Hood seeks a reversal of his conviction for Voluntary Manslaughter, a Class A felony, contending that the State failed to rebut his evidence of self-defense. He also challenges the trial court's decision to impose an enhanced sentence of forty years for that crime, and to impose a consecutive sentence of six years for Carrying a Handgun Without a License, a Class C felony. The Scheduled Panel Members are: Judges Darden, Bailey and Robb. [Where: Shircliff Auditorium, Shircliff Humanities Building, Vincennes University, Vincennes, Indiana ]

This Friday, Nov. 2nd:

10:00 AM - Plaza Group Properties v. Spencer County Plan Commission - This appeal presents issues related to how and when a business can establish lawful conforming use status as a sexually oriented business. The Scheduled Panel Members are: Chief Judge Baker, Judges May and Crone. [Where: Indiana Supreme Court Courtroom, but apparently not to be webcast]

Posted by Marcia Oddi on October 29, 2007 06:46 AM
Posted to Upcoming Oral Arguments

Sunday, October 28, 2007

Courts - "Judicial Races Now Rife With Politics"

That is the headline to a long story on page 1 of the Sunday Washington Post, reported by Robert Barnes. Some quotes:

Judicial elections are an almost uniquely American invention, with a patchwork of more than 16 selection systems spread across the country. In the 21 states that hold direct partisan and nonpartisan elections for the high court, some already have evolved from quiet, down-ballot contests to full-blown campaigns with consultants and multimillion-dollar advertising campaigns. An Illinois Supreme Court contest in 2004 cost more than 18 of the 34 U.S. Senate contests that year, and candidates for chief justice of the Alabama Supreme Court last year raised a total of $8.2 million.

The spending increases in large part reflect a decision by business groups to get involved in the contests. The National Association of Manufacturers announced in 2005 that it was establishing the American Justice Partnership to promote tort reform in the states, and the resulting battles between trial lawyers and business groups such as the Chamber of Commerce have led to some of the most expensive campaign battles.

A large majority of the money raised for races in 2005 and 2006 was spent in 10 states, and 44 percent of it came from business interests, the National Institute on Money in State Politics found. That was about twice as much as was given by lawyers, who had traditionally funded the campaigns.

The heightened spending and increasingly aggressive tone of the contests have alarmed nonpartisan groups and judges from around the country. Retired Supreme Court justice Sandra Day O'Connor, a longtime critic of judicial elections, has taken the lead in denouncing what she has called the "arms race" in campaign fundraising, and at a recent conference she presided over at Georgetown University Law Center, two of her like-minded former colleagues -- Justices Stephen G. Breyer and David H. Souter -- were in the audience.

"The reputation of the American judiciary is in the hands of the state courts," Breyer said. The rising demands on judges to raise money for their expensive campaigns -- plus the spending of outside groups -- could lead to the impression that the courthouse door "is open to some rather than the door is open to all.''

Thomas R. Phillips, a retired chief justice of the Texas Supreme Court, said canons of conduct outside the courtroom make judges "uniquely unable to defend themselves from attacks" from groups angry about unpopular decisions that judges have made.

That issue has particular resonance in Pennsylvania, where a 2005 middle-of-the-night decision by the legislature to grant pay raises for all three branches of government continues to roil state politics.

The state Supreme Court ruled that lawmakers could rescind their own pay raises but not those for judges. The state constitution did not allow judicial salaries to be reduced, the court said, a prohibition meant to insulate judges from political retaliation. Electoral retaliation was another matter: One justice lost his seat when he faced voters later that year.

Now, a group called PACleanSweep is urging voters to reject 66 of the 67 sitting judges on the ballot for retention this year -- the only exception being one judge who returned her raise to the state treasury.

Posted by Marcia Oddi on October 28, 2007 05:49 PM
Posted to Courts in general

Environment - More on "States eye lakes water management"

Following up on yesterday's ILB entry, Tim Jones of the Chicago Tribune has a lengthy story headed: "Great Lakes key front in water wars: Western, Southern states covet Midwest resource." It begins:

While the West burns and the Southeast bakes, there is little to suggest a large-scale, climatological catastrophe playing out any time soon in the Midwest. In fact, farmers in Iowa and Minnesota had trouble last week harvesting their corn and soybean crops because there had been too much rain.

But potentially huge battles over water are looming in the Great Lakes region as cities, towns and states near and far fight for access to the world's largest body of fresh surface water, all of it residing in the five Great Lakes.

Call them water wars, with the Great Lakes states hunkering down to protect what they see as theirs.

More from the story:

With fresh water supplies dwindling in the West and South, the Great Lakes are the natural-resource equivalent of the fat pension fund, and some politicians are eager to raid it. The lakes contain nearly 20 percent of the world's surface fresh water.

"You're going to see increasing pressure to gain access to this [water] supply," said Aaron Packman, a professor of civil and environmental engineering at Northwestern University. "Clearly it's a case of different regional interests competing for this water."

Eight Great Lakes-area states, from Minnesota to New York, and two Canadian provinces have proposed a regional water compact that would, among other things, strengthen an existing ban on major water diversions outside the Great Lakes Basin, home to 40 million Americans and Canadians. That proposal still has to work its way through several legislatures, and then it must go to Congress, where the political balance of power has been tilting west and south for decades.

Coveting Great Lakes water is not a recent development. In the past two decades, governors have effectively resisted attempts to divert water outside the Great Lakes Basin. For instance, they joined forces with Canada in 1988 to block an effort by then-Illinois Gov. James Thompson to tap into the Great Lakes to help free up drought-stalled barge traffic in the Mississippi River.

Those are the loud fights, conjuring images of enormously expensive pipelines delivering billions of gallons of water daily to distant, parched lands.

But there also are smaller but no less significant frictions among the states trying to protect the water, notably in the Milwaukee suburb of Waukesha, which wants to pipe Lake Michigan water into its community because its drinking water wells show high levels of cancer-causing radium. The Waukesha conflict stems from the city's being outside the vast Great Lakes Basin, which means the Lake Michigan water it would use would not be returned to the lake; it would be lost, draining into the Fox River and ultimately down the Mississippi and into the Gulf of Mexico.

Waukesha is a small but important example of the potential precedent-setting nature of diverting water to a city or state outside the Great Lakes Basin.

"There's a concern that the thirsty in the Great Lakes region will set the precedent locally, even though they may be 5 or 10 miles outside the basin. But 20, 30 or 50 years from now, that precedent could be used to send water to far-flung reaches of the continent," said Peter Annin, author of "The Great Lakes Water Wars."

"If you make the exception at 15 miles, what about 30 or 50 or 500 miles? That's the fear," Annin said. * * *

Water levels of the Great Lakes are down substantially, and while that may be part of the historic cycle of ups and downs, water managers argue the region must jealously guard what is here. At the same time, more communities are discovering contamination of their drinking-water supplies, which already has increased the pressure to obtain Great Lakes water. A recent report forecast water shortages in northeast Illinois by 2020.

"We are the water belt of the nation, and we have a real opportunity to not only do the right thing environmentally but also have a sustainable management policy that makes tremendous economic sense for the region," said Todd Ambs, water division administrator for the Wisconsin Department of Natural Resources.

"I wouldn't say we are awash in water, but there's certainly enough [water] to have a strong economic driver," Ambs said, to lure back businesses that left the region.

The following quote particularly caught the eye of the ILB, given the Oct. 22nd ILB report of Indiana's arrangement with a Canadian bottling company:

In Michigan, Granholm fought with Nestle Waters North America over the company's pulling millions of gallons from Lake Michigan for its Ice Mountain bottled-water franchise. The state has negotiated limits on the amount the company can pump.

Posted by Marcia Oddi on October 28, 2007 05:35 PM
Posted to Environment

Ind. Courts - Evansville federal courthouse installs monitors in jury box

Kat Braser of the Evansville Courier & Press reports today:

Eight monitors installed this month in the jury box of the federal courthouse in Evansville have arrived in good time.

The screens, which will be used to display evidence and documents to jurors in upcoming federal trials, should save court officials from making stacks of photocopies during what federal court staff anticipate to be a busy start to 2008.

Dana Schuler, courtroom deputy, said the U.S. District Court for the Southern District of Indiana typically sees seven or eight trials per year, but 2008 may see more activity than usual. Schuler said trials are already scheduled to take place there in January, February and March of next year. * * *

Schuler said previously attorneys relied on a large, bulky single monitor. He added the layout of the jury box made it difficult for jurors to see the content displayed on the monitor in detail.

"Before we used one huge monitor to show some of these documents to jurors, or else they had stacks and stacks of papers to shuffle through," Schuler said. "These will make things easier."

The new monitors — each about the size of a laptop computer screen — are affixed in the jury box between seats, so that each juror is within arm's length of one. * * *

Schuler said the screens were previously installed in a federal courtroom in Indianapolis, but the recent installation here made Evansville the only federal courthouse in the Southern District of Indiana to receive the new monitors. [ILB - that is somewhat confusing.]

Posted by Marcia Oddi on October 28, 2007 05:30 PM
Posted to Indiana Courts

Saturday, October 27, 2007

Ind. Courts - More on "Donors wanted for $500,000 decorative Randolph County Courthouse roof"

Updating this ILB entry from Oct. 2, Joy Leiker of the Muncie Star Press reports today in a lengthy story, complete with photos, timelines and side-bars, that begins:

WINCHESTER -- The plan: Use one historic Randolph County building to raise money for another.

On Sunday, a group of residents -- who call themselves the Save Our Courthouse group -- will open the doors of the former county home for public tours. Organizers say it might be the first time in the building's history that the doors will be open to the public.

And though it's now void of residents -- the last ones were moved out last year -- the building is full of ornate and interesting architecture. The cost of admission -- $10 in advance or $12 at the door -- will go to a fund to help recover some of the history that was torn off the top of another local structure -- the county courthouse, on Winchester's downtown square.

Posted by Marcia Oddi on October 27, 2007 04:57 PM
Posted to Indiana Courts

Environment - "States eye lakes water management"

On October 22nd the ILB posted an entry headed "Canadian company mining Indiana aquifer." The entry concluded:

No talk here of water management policies. The day may soon be past, and perhaps it should be already, when a community will so eagerly, and with the help of the state administration, sell off the rights to draw down its aquifer for the promise of 100 jobs.

Today Gitte Laasby of the Gary Post-Tribune reports:

Great Lakes water levels are near historic lows. And with droughts in the Southeast and Southwest, the pressure to turn to the Great Lakes as a source of fresh water is growing.

So is the need for states to pass the Great Lakes Compact to prevent diversions.

The Georgian Bay Association released new figures in August indicating that an extra 2.5 billion gallons of water are being drained from the lakes every day. It takes about 99 years for water in Lake Michigan to replenish itself.

Meanwhile, New Mexico Gov. and Democratic presidential hopeful Bill Richardson hinted earlier this month that he'd be willing to divert Great Lakes water when he said "states like Wisconsin are awash in water." He later partially withdrew that statement. * * *

State groups and supporters of the Compact expect to have legislation for the Indiana General Assembly to consider this spring. The compact says states have discretion to decide their own thresholds for diversions, but the default is 100,000 gallons per day.

Indiana has suggested new or increased withdrawals from Lake Michigan be capped at 5 million gallons per day on average for a 90-day period. Withdrawals from other lakes, streams or groundwater would be capped at a million gallons per day average. Above those limits, facilities would need a permit from the state.

Existing uses, for instance municipal plants, would be protected up to the facilities' current withdrawal capacity, but require a permit to go beyond.

There's bipartisan support for the compact, but a short legislative session doesn't leave room for many delays. Minnesota and Illinois have already adopted it. For the compact to take effect, the states would have to pass identical legislation and Congress would need to approve. [Emphasis added by ILB.]

Posted by Marcia Oddi on October 27, 2007 04:47 PM
Posted to Environment

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

Updating this ILB entry from May 31st, Jon Murray of the Indianapolis Star reports today:

A former state attorney accused of drunken driving in a fatal wreck now faces a drug-related charge in that crash.

Charges allege that Terry Record, 27, caused the accident in May after leaving a strip club, where police said he had been drinking heavily. Jimmy R. Cash, 46, died at the scene.

The new charge is operating a motor vehicle with marijuana detected in the blood, causing death. Special prosecutor Barry Brown submitted the new charge to a Marion Superior Court judge, and Record's attorney did not object to its acceptance during a hearing Friday.

Brown said lab test results showing signs of marijuana in Record's blood at the time of the crash spurred the new charge. The Class B felony carries a penalty of six to 20 years in prison.

Record already faced two counts of operating a vehicle while intoxicated, causing death, and another count of reckless homicide. The lead drunken-driving charge also is a Class B felony. * * *

During Friday's hearing, Judge Grant Hawkins approved a two-week delay of Record's trial to March 10, on Brown's request.

The judge also will consider a request by Record's attorney, David E. Lewis, to let Record live with his grandmother in Evansville until the trial.

Hawkins said he likely will grant the request over Brown's objection as long as electronic monitoring will be used.

Posted by Marcia Oddi on October 27, 2007 04:42 PM
Posted to Indiana Courts

Ind. Courts - More on: Evansville attorney previously charged with meth violatons allegedly fails drug test

Updating this ILB entry from Oct. 23rd, which quoted a story in the Evansville Courier & Press, John Martin of the same paper reports today:

A local attorney who was jailed for allegedly failing a drug test ordered as a condition of bail was released Friday when the test results turned out to be a false positive.

Teresa Perry's trial on methamphetamine charges stemming from her spring arrest had been scheduled to begin this week.

Instead, Perry spent the week in jail after testing positive for drugs during a required check-in.

Perry, 33, maintained the result was inaccurate, and Vanderburgh Superior Court Judge Wayne Trockman released her Friday after a follow-up drug screening contradicted the earlier one.

"The science proved our contention that she did not use drugs on bail. ... The truth was brought out," Perry's attorney, Doug Walton, said.

Perry's trial on eight counts related to distributing and possessing methamphetamine has been rescheduled for Dec. 10.

Trockman on Friday refused to discuss Perry's case specifically but said that "false positive" tests, while rare, are not unprecedented.

He said confirmation tests, which are requested by the court and take about three days to process, are 100 percent accurate.

Posted by Marcia Oddi on October 27, 2007 04:35 PM
Posted to Indiana Courts

Ind. Decisions - "State has 128 days to retry Delph"

Reporting on yesterday's COA decision in the case of State of Indiana v. Rex David Delph (see ILB entry here - 2nd case), Steve Dick of the Anderson Herald-Bulletin writes:

The Indiana Court of Appeals has given the state 128 days to retry Rex Delph for two counts of murder, Class A felony arson resulting in bodily injury and two counts of felony murder, and Madison County Prosecutor Tom Broderick said his office would proceed promptly.

On Dec. 6, 2006, Judge Fredrick Spencer of Madison Circuit Court dismissed all charges against Delph, claiming the state took 429 days to bring the defendant to trial. The appellate opinion lists numerous continuances in the trial of Delph. * * *

Delph had sought the dismissal based on Criminal Rule 4(C), which states: “No person shall be held on recognizance or otherwise to answer a criminal charge for a period ... embracing more than one year from the date the criminal charge is filed or from the date of his arrest on such charge, whichever is later; except where a continuance is had on his motion or the delay was caused by his act or where there was not sufficient time to try him due to court congestion.”

According to a Herald Bulletin article at the time, Spencer said many of the continuances were because the prosecutor’s office failed to share evidence from the investigation. Delph’s attorney, Zaki Ali, was searching for two oil lamps found in Delph’s home. Ali, according to previous reports, wanted an expert to examine the lamps. It took two months to find the lamps in custody of the Anderson Fire Department, according to the Court of Appeals opinion.

The appellate court sought to break down the number of days that could be charged to the state and days charged to Delph to determine if the case violated Criminal Rule 4(C).

In the ruling, of the 429 noted by Spencer, 237 days were attributed to the state with the remainder to Delph. That means the state has 128 days to retry Delph.

“That’s not a great deal of time, if there are no other delays,” said Broderick.

“I will ask the judge Monday to set a trial date (in that time period). It will give us time to be prepared and look over evidence.”

Broderick said delays could come if Delph would request another look by the appellate court. Delph has 30 days to do so. Another 30 days could be added if, after another appellate review, Delph decided to transfer the case to the Indiana Supreme Court, according to Broderick.

Posted by Marcia Oddi on October 27, 2007 04:25 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Two fresh faces run for judge: Goshen will get first new judge since '84"

That is the headline to a story today in the Elkhart Truth, reported by Tim Vandenack. Some quotes:

GOSHEN -- The race for judge of Goshen City Court features an Elkhart County prosecutor, Republican Gretchen Hess Lund, and longtime local attorney Joe Lehman, a Democrat.

Neither has held elective office, so it'll be a first for whoever gets the nod from voters on Nov. 6 for the part-time post.

Moreover, the race is something of a watershed. With incumbent Cecilia McGregor sitting it out because of health reasons -- subs have filled in as city judge since October 2005, when she took medical leave due to multiple sclerosis -- the winner will be the first new city judge here since 1984. That's when McGregor, who won re-election five times, was first appointed.

Lehman, 58, who has run his own general practice since 1990 save for a three-year stint with another law firm, touts his years of experience.

"My success as a local attorney as well as my 16 years of serving the public in the Goshen community make me the best candidate," he said.

Lund, 32, who handles felony child support cases as an assistant county prosecutor, says resolving disputes is her strength, making her a natural fit for the judgeship.

"Ultimately that's what a good judge should do -- come up with good resolutions to things that happen in our community," she said.

Goshen City Court came under fire last year by some who said the body should be eliminated because of the cost of running it. Both hopefuls, however, back its continuation, saying the court is vital as a means of handling local disputes locally.

City court handles misdemeanors, traffic infractions, ordinance violations and other such cases originating in Goshen.

A second story, this one written by John Kline of the Goshen News and published Friday, begins:

The two candidates for Goshen City Court Judge fielded numerous questions Thursday evening at the Goshen Chamber of Commerce as part of the 2007 Judge Candidates Forum.

Republican candidate Gretchen Hess Lund was joined by Democratic candidate Joseph L. Lehman in discussing their campaigns and highlighting their goals for the City Court Judge office if elected this November.

“I felt I was qualified for this position not only on my expertise, but also on my energy,” said Lund, who has served as a Deputy Prosecuting Attorney for the Elkhart County Prosecutor’s Office since May of 2006.

Lehman also has a strong history in Goshen, having graduated from Goshen Middle School, High School and Goshen College and spending 16 of his 24 years as an attorney in the Goshen area.

Posted by Marcia Oddi on October 27, 2007 04:19 PM
Posted to Indiana Courts

Ind. Courts - Defendant's sentence includes watching his electronic gambling machines being destroyed

Sophia Voravong reports today in the Lafayette Courier & Press:

A Lafayette businessman watched Friday afternoon as 38 gambling machines seized from his former all-ages nightclub in May 2004 were crushed and destroyed.

That was part of the punishment handed down to Rodger L. Heer, 57, on Friday morning by Judge Don Johnson of Tippecanoe Superior Court 1.

Heer also was sentenced to unsupervised probation and ordered to pay $10,000 in restitution.

"This was four years ago," Heer said, gesturing to the machines being smashed by a bulldozer in the parking lot at the city of Lafayette's fleet maintenance facility.

"I don't even know why I'm here."

Heer pleaded guilty to promoting professional gambling, a Class D felony, on the morning jury selection was to begin in his trial last month.

Three other charges, including Class C felony counts of corrupt business influence and money laundering, were dropped.

The machines -- some that Heer bought brand new and some that were used -- had an approximate value of $2,200 each, according to Lt. Jim Taul of the Lafayette Police Department. * * *

Taul, who investigated the complaints, said he hopes it sends a message to other business owners who have gambling devices.

"I would think that it would encourage anyone operating the illegal machines to get rid of them," he said, "before they get arrested and charged. Because now, we have a citizen with a felony on his record."

Posted by Marcia Oddi on October 27, 2007 04:12 PM
Posted to Ind. Trial Ct. Decisions

Friday, October 26, 2007

Ind. Courts - Two interesting issues raised in Tippecanoe trial

Sophia Voravong of the Lafayette Journal & Courier has a story today that touches on two interesting issues:

The city code on West Lafayette's official Web site does not include information explaining to landlords how they should monitor over-occupancy at their properties.

That issue was raised Thursday in Tippecanoe Superior Court 2 by attorney William Kealey whose clients, Patti and Jerry Weida, are being sued by the city.

The civil bench trial, being heard by Judge Thomas Busch, began Tuesday morning. A decision could come today.

"You could not look up the definition of 'monitoring' by going to the site," Kealey said. "... What does duty to monitor mean for her (Patti Weida) business?"

The city of West Lafayette alleges that the Weidas allowed five women to live in a rental home together at 112 Sylvia St. in early 2006. The city's code allows up to three unrelated people to live together in areas zoned residential.

The Weidas and all five students are named as defendants in the lawsuit.

It will be up to Busch to decide whether the Weidas were diligent in monitoring the property, if they did not know of the additional residents and if they charged reasonable rent for the permitted occupancy.

Allen Grady, West Lafayette's assistant director of development, testified Thursday that he does not provide landlords with a checklist of how to monitor properties.

But he said they're encouraged to routinely visit properties, maintain contact with tenants and look at the number of vehicles parked outside.

He sent the Weidas a letter on March 6, 2006, asking them to update their occupancy affidavit.

"City ordinance states what they should do," Grady said.

The civil complaint against the Weidas was one of three recently filed by the city over code violations by landlords. In September, $61,000 was transferred into the city's legal budget to fight the court battles.

The first appears to be the duty of the city to make available to its citizens the legal requirements they are expected to follow.

The second is the issue of local ordinances in Indiana limiting the number of unrelated people who may live together. Although this issue is often raised in college towns (see this table), and our Supreme Court has issued a ruling on it (Dvorak v. City of Bloomington - 9/23/2003), there is a federal suit pending against the Town of St. John - see this Advance Indiana entry. Here is a copy of the complaint filed by the DOJ.

Posted by Marcia Oddi on October 26, 2007 04:16 PM
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending October 26, 2007

Here is the Indiana Supreme Court's transfer list for the week ending October 26, 2007.

There were two transfers granted this week, summarized in this entry from earlier today.

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 October 26, 2007 03:59 PM
Posted to Indiana Transfer Lists

Ind. Courts - Orange County Court relocating temporarily

From Q-100 News in Orange County:

The Orange Circuit Court, the Orange county Probation Department and the Orange County Clerks office will be relocating while the remodeling of the Orange county Courthouse is underway. Those offices will relocate to the Boyer building on North Gospel Street in Paoli. The rent is expected to be $2750.00 a month with a one years lease. The building will be ready to move into this week. The elevator project at the Orange County Courthouse is underway.

Posted by Marcia Oddi on October 26, 2007 03:39 PM
Posted to Indiana Courts

Ind. Courts - Warsaw company charges competitor breached its dealer website

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

A Warsaw-based projection screen maker is suing a competitor in federal court, claiming the competitor trespassed on its computers.

Filed this month in South Bend, the lawsuit alleges employees at Spiceland-based Draper Inc. gained unauthorized access to the dealer Web site for Da-Lite Screen Co.

Through that access, Draper employees found information about how much Da-Lite quoted specific customers for products and freight costs, bids prepared for those customers and products customers had bought. That information gave Draper an unfair competitive advantage in the projection screen market, according to court documents.

Da-Lite officials are seeking to recoup any financial losses they suffered, the costs of responding to the security breach, punitive damages and statutory damages of $1,000 per time Draper’s employees accessed Da-Lite’s Web site, estimated by Da-Lite to be more than 200 times since August 2005.

A phone call to Draper’s Milwaukee-based attorney was not returned Thursday. Da-Lite’s attorney declined to comment.

Posted by Marcia Oddi on October 26, 2007 02:37 PM
Posted to Indiana Courts

Ind. Decisions - 7th Circuit dismisses challenge to Indiana canons of judicial ethics

In Right to Life v. Randall T. Shepard (ND Ind., Judge Sharp), a 10-page opinion, Judge Evans writes:

Indiana Right to Life and Arline Sprau (we will refer to them collectively as Right to Life) filed this complaint against the Indiana Commission on Judicial Qualifications and the Indiana Disciplinary Commission, contending that two canons in the Indiana Code of Judicial Conduct violate their First Amendment rights. The district court agreed that one of the canons was unconstitutional and the state defendants appeal.

The canon at issue—Canon 5A(3)(d)(i) and (ii)—provides:

A candidate, including an incumbent judge, for a judicial office . . . shall not: (i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; (ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.

In the parlance of cases such as the one before us, the two clauses in this canon are referred to respectively as “pledges” and “commitments” clauses. The contention that the clauses are unconstitutional grows out of Republican Party of Minnesota v. White, 536 U.S. 765 (2002), which declared unconstitutional a provision in Minnesota’s Code of Judicial Conduct. The provision, commonly called an “announce” clause, stated that a candidate for judicial office shall not “announce his or her views on disputed legal or political issues.” The clause, the Court said, covered much more than promising to decide an issue a particular way; it prohibited merely stating a candidate’s current position, even if he did not bind himself to maintain that position after the election. That broad a prohibition was found to violate the First Amendment. The more limited provisions—pledges or promises clauses—were not challenged, and on those clauses, the Court specifically said it “express[ed] no view.” It is with its eye on invalidating the latter clauses that various groups have filed lawsuits throughout the country. See, e.g., Pennsylvania Family Institute v. Black, 489 F.3d 156 (3rd Cir. 2007); Alaska Right to Life v. Feldman, ___ F.3d ___, 2007 WL 2743603 (9th Cir. 2007). * * *

Despite recognizing that its claim is for a right to listen, Right to Life nevertheless contends that Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (7th Cir. 1993), requires that we find standing in this case. There is a significant and obvious difference, however, between the case before us and Buckley—or White, for that matter. Neither White nor Buckley is a right-to-listen case. More importantly, in both, the plaintiffs were themselves judicial candidates whose right to speak was constrained. * * *

In a right-to-listen case, Right to Life would have standing if there are otherwise willing speakers who are constrained by the Judicial Code. Right to Life says there are. We cannot agree. No judicial candidate in Indiana has been disciplined for a violation of the canon at issue. The two candidates who answered the questionnaire in 2004 have stated that they have no fear of disciplinary action for doing so. In addition, of the remaining six who responded to Right to Life but did not answer the questions, clearly none stated that they declined to answer based on the canon. Some mentioned the canon but went on to say that they were relying on their own personal feeling as to what was appropriate for a judicial candidate to say. Right to Life attempted to put words in the candidates’ mouths by setting out a footnote to the response “decline” on the questionnaire. The footnote seems to be an attempt to indicate that the only reason for declining would be the Code. The individual responses show that is not true and negate any force that the footnote could conceivably have. In addition, the organization’s targeted, chosen speaker, Newton, turned out to be unwilling to speak regardless of the Code. Right to Life has failed to establish standing to bring this action.

Our decision is in line with the previously mentioned decisions of the Courts of Appeals for the Third Circuit and the Ninth Circuit. In Pennsylvania Family Institute, plaintiffs had argued that if a candidate responded “Decline to Answer” with its accompanying footnote referencing the judicial code, he was communicating a belief that they were prohibited from speaking by the Code. The court said that perhaps some of the candidates, in fact, did believe they were prohibited by the Code, but, nevertheless, in order to have standing, the plaintiffs must “at least demonstrate that but for a regulation, a speaker subject to it would be willing to speak.” In Alaska Right to Life, the court looked at ripeness. As here, there was no evidence of a real threat of enforcement; accordingly, the case was not ripe. The court said that the district court should have declined jurisdiction for lack of a justiciable case or controversy. Like those cases, the case before us does not present a case or controversy. Right to Life has no standing to bring the case, and it should have been dismissed.

The decision of the district court that Canon 5A(3)(d)(i) and (ii) is unconstitutional is REVERSED. We REMAND the case to the district court with instructions to dismiss it.

Note that this opinion is well worth reading in full.

For background, see this Sept. 12th ILB entry headed "Challenge to Indiana judicial canons goes before 7th Circuit."

[More] See Robert Loblaw's Decision of the Day's summary here, headed "Seventh Rejects Judicial Ethics Challenge on Standing Grounds."

Posted by Marcia Oddi on October 26, 2007 01:41 PM
Posted to Indiana Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 2 NFP)

For publication opinions today (3):

COA holds that that imposition of a lifetime registration requirement for sexually violent predators runs afoul of ex post facto considerations. In Anthony Thompson v. State of Indiana , a 12-page opinion, Senior Judge Sullivan writes:

Anthony Thompson (Thompson) challenges the sentencing procedures followed by the sentencing court in imposing his aggregate sentence of sixty-three years for multiple sexual offenses perpetrated upon the fifteen-year-old victim. He also challenges the sentences themselves. * * *

IV. Thompson challenges the trial court’s finding that Thompson is a sexually violent predator.

The instant offenses were committed February 2, 2005, but Thompson was not sentenced until September 25, 2006. During the interim, the General Assembly, effective July 1, 2006, amended the statute concerning a determination that a person is a sexually violent predator. At the time these offenses were committed, the statute then in effect (I.C. 5-2-12-4.5), as does the amended statute (I.C. 35-38-1-7.5), defined a sexually violent predator as a person “who suffers from a mental abnormality or personality disorder that makes the individual likely to repeatedly engage in any. . . . offenses [enumerated in I.C. 11-8-8-5]. * * *

Thompson argues that the lifetime registration impact by reason of the trial court’s determination is violative of ex post facto principles. We disagree.

Insofar as the actual determination made that Thompson is a sexually violent predator, we discern no difference between the prior statutory scheme and the scheme allegedly employed by the sentencing court. Accordingly, we do not conclude that ex post facto considerations are implicated in that determination.

Quite a different question is presented by Thompson’s challenge to the lifetime registration aspect of the trial court’s order. The statute formerly in place, Ind. Code § 5-2-12-13, provided that the duty of a sex and violent offender to register terminated after ten years unless the individual had been determined to be a sexually violent predator, in which case the registration requirement was for an “indefinite period.” This proviso was subject to an exception if a court “assisted by a board of experts finds that the sex and violent offender is no longer a sexually violent predator. . . .”

The amended statute currently in place, Ind. Code § 11-8-8-19, contains a change. It provides for a ten-year registration period for a sex or violent offender unless that person has been determined to be a sexually violent predator, in which case he must register “for life.” The change from a registration requirement for “an indefinite period subject to termination if the individual was found to be no longer a sexually violent predator” to an unequivocal and absolute requirement of registration for life is not an inconsequential change. This conclusion leads us to a consideration of Thompson’s claim of an ex post facto violation.

We first observe that although the statutory provision for determination that a person is a sexually violent predator (Ind. Code § 35-38-1-7.5) is placed within the criminal code, the provision for registration and the duration of the registration period is within the statutory code provisions dealing with the Department of Correction. This factor of placement within the Indiana Code does not provide us with a vehicle for stating with certitude that the provision is clearly not penal in nature but rather is purely regulatory. The lifetime registration impact of the trial court’s sexually violent predator determination most assuredly has penal implications. See Goldsberry v. State, 821 N.E.2d 447 (Ind. Ct. App. 2005); but see Spencer v. O’Connor, 707 N.E.2d 1039 (Ind. Ct. App. 1999), trans. denied.

In keeping with the tenor of the Goldsberry decision, we hold that imposition of a lifetime registration requirement runs afoul of ex post facto considerations. Accordingly, we affirm the convictions and the sentences imposed but reverse the sexually violent predator determination insofar as it requires Thompson to register for life. We remand with instructions to amend the registration requirement to be for an indefinite period subject to the right of Thompson to seek a determination at some time in the future that he is no longer a sexually violent predator.

Affirmed in part and reversed in part and remanded.

In State of Indiana v. Rex David Delph , an 11-page opinion, Judge Bradford writes:

Appellant-Plaintiff the State of Indiana appeals from the trial court’s discharge of Rex David Delph, who had been charged with two counts of murder, one count of Class A felony arson, and two counts of felony murder, pursuant to Indiana Rule of Criminal Procedure 4(C). * * *

We conclude that the trial court correctly charged the State with a delay of 221 days from the date Delph was charged to the original trial setting, as the State conceded below that it should have been charged 221 days. The 147-day delay at issue, however, should have been charged to Delph, as he acquiesced in it. As for the delay caused by the final trial setting, we conclude that it was properly charged to the State but that sixteen additional days (and not sixty-three) should have been charged to the State. Finally, we decline to dismiss this appeal on the basis that the State failed to file a timely Brief of Appellant. We reverse and remand with instructions that the State will have a total of 128 days4 to bring Delph to trial following certification of this opinion.

Carla M. Browell v. Rick W. Bagby, II - "Carla (Bagby) Browell (“Mother”) appeals the trial court’s grant of Rick Bagby’s (“Father”) petition to modify custody after Mother filed a notice of intent to move to Nashville, Tennessee. Because we find that the trial court acted within its discretion in granting the petition, we affirm. * * * For the foregoing reasons, we conclude that the trial court did not abuse its discretion in granting Father’s petition to modify custody."

NFP civil opinions today (1):

In the Matter of the Merrillville Conservancy District (NFP) - "Independence Hill Conservancy District (“IHCD”) appeals the trial court’s order granting Merrillville Conservancy District’s (“MCD”) petition to annex certain real estate owned by GCC Merrillville Ventures, LLC (“GCC”), to MCD’s sanitary sewer service territory. We affirm."

NFP criminal opinions today (1):

Jaconiah I. Fields v. State of Indiana (NFP)

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

Ind. Law - Learn about accessing Indiana government information

The 2007 Access Boot Camp, a joint program of the Indiana Coalition for Open Government, Indiana State Bar Association and Hoosier State Press Association, is sponsoring an all-day seminar on Thursday, Nov. 8th. Here are the details. Of particular interest to the ILB is this session:

From Rules to Laws: Where is the Indiana Register?
Indiana’s rulemaking process can be difficult to navigate. Controversial changes to the Indiana Register, a must-read for both investigative journalists, lawyers and lobbyists, has resulted in limited access to significant policy changes underway in Indiana. Experts explore the consequences of changing notice and public provisions in what was once the gold standard guide to the process of making [administrative] laws.

Here is the registration form. However, lawyers seeking 5.1 hours CLE credit should register here.

Posted by Marcia Oddi on October 26, 2007 08:32 AM
Posted to Indiana Law

Ind. Courts - More on the property tax challenge in Tax Court

Updating these ILB entries from Sept. 7th and Sept. 17th reporting that "Carmel attorney John Price has filed suit in the Indiana Tax Court challenging the property tax," here is further information:

The Hearing in the taxpayers’ Constitutional Tax Case has been moved by the Indiana Tax Court from October 25th to October 31st. The Hearing will be at 9:30 AM in the Supreme Courtroom (Room 317 of the State House). Argument will be heard on pending motions. At issue in the case are a.) the legality of the Marion County COIT increase of 65%; b.) the legality of the deadline extension by the State Respondents for Indiana Counties to adopt COIT increases; and c.) numerous Constitutional challenges to Indiana’s property tax system as currently administered.

The Tax Court on October 23rd approved the Petitioners’ Motion for Leave to Amend. Changes in the case are:

1.) The addition of three (3) new taxpayer organizations as Petitioners, which brings to a total of ten (10) the number of such Indiana taxpayer associations in the case

2.) Deletion of claims for refunds by Marion County taxpayers who had overpaid their spring tax bills at the 2006 level, in that Marion County Treasurer Rodman last week notified Marion County taxpayers that he would credit their overpayments to the fall installment. With this refund action the Marion County Taxpayers who initially brought suit in July for a reassessment, at the 2006 tax cap level, and asked for refunds of overpayments, have obtained what they requested in the suit in all three instances.

3.) The addition of four (4) new individual Petitioners.

More:

Judge Fisher has set the second Hearing in our Constitutional Tax Case for November 16, 2007 at 11 AM, also in the Supreme Court Courtroom, Room 317, State House. The second Hearing will be on all requests for injunctive relief that survive the Motions to Dismiss being argued on 10/31, and also on our request for certification as a class action.

Posted by Marcia Oddi on October 26, 2007 08:21 AM
Posted to Indiana Courts

Ind. Decisions - Court grants two transfers this week

The formal transfer list will follow later today, but two cases have been granted transfer this week:

HomeQ Servicing Corp. v. Bradley Baker - see April 13th ILB entry on COA ruling here (3rd case): "Pro se appellees lose in mortgage servicing company appeal - pro se's lack of knowlege of procedure at the trial and appeals level played a significant role in this case."

Larry Walden v. State - This is a May 10, 2007 NFP COA opinion. One of the isues in the case:

Walden first contends that the trial court abused its discretion by allowing expert witnesses to testify as to which person was driving the pickup truck based upon their knowledge of accident reconstruction. Walden contends that the witnesses’ testimony amounted to common knowledge and experience of ordinary persons, and therefore should not have been allowed as expert testimony.

The Court's conclusion:

We conclude that the trial court did not abuse its discretion in admitting expert testimony about who was driving the vehicle, or in rejecting Walden’s proposed jury instruction. There was sufficient evidence to support the jury’s conclusion that Walden had a prior conviction for operating a vehicle while intoxicated, and Walden’s aggregate sentence of fifty years is not inappropriate in light of the nature of the offense and character of the offender. Affirmed.

Posted by Marcia Oddi on October 26, 2007 08:04 AM
Posted to Indiana Transfer Lists

Ind. Courts - State court plan to link county courts by 2015 may not permit interfaces by long-existing private company that already links more than 40 counties

Over the years, the ILB has posted several entries mentioning Doxpop, an Indiana company with which many ILB readers are familiar, that has put the court records of many Indiana counties online. The most recent, from July 10th, indicates that currently Doxpop has "about 40 counties and 125 courts on-line."

Here is the Doxpop Court Cases introductory page. it notes:

Doxpop provides access to over 7,066,093 current and historical cases from 133 courts in 42 Indiana counties in the Doxpop Network. During the average working day a new case is added every twenty seconds.

You can use our court case search features to find basic information about open cases, or you can subscribe to become a registered user and access all available information about current and historical cases.

The historical case information extends from three years to twenty years back depending on the jurisdiction. Most courts have at least ten years of historical case information available though Doxpop.

The court case information provided through the Doxpop Services is not the official public record. Our mission is to provide an accurate and current copy of the official record by maintaining a mirrored copy that is updated regularly.

Here is information from a posting the ILB published on March 10, 2005 (Note that it appears the number of counties Doxpop links has more than doubled since 2005.):

If you are a lawyer in one of these twenty Indiana counties -- Bartholomew, Brown, Clinton, Daviess, Delaware, Elkhart, Howard, Jay, Johnson, Marshall, Miami, Monroe, Montgomery, Putnam, Randolph, Spencer, Sullivan, Sullivan, Vigo, Wabash, and Wayne -- you probably already are aware that for $39/month you can have online access to not only current case tracking information from your county's courts, but to the same information in the other nineteen listed counties. In other words, all these counties' courts are computerized and linked.

This service is provided by an Indiana business, Doxpop, LLC. According to its literature, Doxpop provides access to over 3,111,733 current and historical cases from 86 Indiana courts in the Doxpop Network (i.e. the 20 counties). During the average working day a new case is added every twenty seconds.

What exactly does Doxpop do? As explained in the same post:

Ninety of Indiana's ninety-two have counties currently have computerized case-management systems (CMS). A number of different vendors provide these services to various of the counties, including CSI Computer System, Inc., providers of judicial tracking software, and Maximus, court and justice solutions. Doxpop works on top of a county's case management system. * * *

What Doxpop does, in the most basic terms, is at 10-minute intervals take the information from these court-based case tracking systems and make it accessible, via protected internet access, to its registered users, wherever they may be.

Here is Doxpop's "testimonial page", which gives an indication of how it is used. Note several commenters from Monroe County.

If this sounds a lot like the Indiana State Court's Judicial Technology and Automation Committee (JTAC) plan to link all the courts in the State, it is, at least in part. As the ILB understands it, the JTAC plan is to install their case management systems (CMS) in county courts, and link them. It is the linking part that DoxPop already appears to have perfected, having linked as of now nearly half the counties, no matter what kind of CMS they use.

This ILB entry from Sept. 30th gives a good overview of the State Court's project. The JTAC timetable for installing its CMS in counties extends to 2015. According to an Indianapolis Star quote in the post:

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.

In other words, counties will be able to continue to use their own CMSs. This has been, and continues to be, a matter of much concern in some of the counties.

This seems to leave two questions unanswered, however. (1) If a county, such as Marion County, does not switch to the JTAC case management system (CMS) for its own court records, will the county be included in the state web of linked courts? (2) If a county does switch over to the JTAC CMS, can it still be a part of the DoxPop Network?

The answer to the latter question, at least for now, appears to be "No", according to this memo sent out by DoxPop yesterday to all its users:

The Courts of Monroe County are planning changes that will affect your ability to access up-to-date Monroe County case information via the Doxpop system after December 17, 2007.

The Monroe Courts are planning to discontinue use of their current Case Management System (CMS) as of December 17th in order to pilot the use of a CMS provided by the State Court's Judicial Technology and Automation Committee (JTAC). The JTAC CMS is capable of sending information to other systems, including the Doxpop system, but some configuration on the part of JTAC is required to enable this data interface feature.

On January 29, 2007, Doxpop submitted its first written request for a meeting with JTAC to begin work on an interface between the two systems. This meeting was deferred several times by JTAC and we had our first meeting on October 11. At that meeting we learned from JTAC that it had a clear directive to go live in Monroe County on December 17, and that it could not accommodate our request to develop an interface without specific authorization to do so. With the help of Judge Kenneth Todd, Monroe County, we met with representatives of the Division and JTAC via conference call on October 24, yesterday. In that meeting we were told that the existing authorization for us to publish Monroe County Court data under Trial Rule 77(k) was inadequate, and that we must submit a new application under Administrative Rule 9 in order to authorize JTAC to consider our request for an interface.

Today, Doxpop has submitted to the Division of State Court Administration a formal request to authorize Doxpop as a recipient of information from the JTAC system. The Division has indicated its intention to bring this matter before the Indiana Supreme Court. If the request is approved, it will take some time to implement the interface between the two systems. Since both the JTAC and Doxpop systems are designed to support such interfaces, we are hopeful that this can be completed without significant delay.

We are working hard to prevent any interruption in up-to-date service. If we have not secured approval and established an interface with the JTAC system by December 17, Doxpop will continue to provide access to historical cases, but will no longer be able to keep you informed of new cases or events as they develop after that date. The change in Monroe County will not affect your access to cases in the 42 other counties that work with Doxpop.

We will keep you informed as we learn more and as this date approaches. In the meantime, we will continue to work with the Monroe Courts, JTAC and the Division to secure approval and establish a data interface.

With no working solution yet available to us, we believe it our obligation to keep you, our customers, and the general public informed of the situation so that you may prepare for a possible disruption of your access to Monroe County Court data. However, we remain hopeful that it is possible to preserve the public access to court records we have provided for the last five years on behalf on Monroe County.

Thank you for using Doxpop.

Ray Ontko, President
866-369-7671

P.S. If you have questions regarding access to ongoing matters before the Monroe County Courts, you may call the office of the Clerk of the Circuit Court at 812-349-2600 or the Circuit Court directly at 812-349-2615. If you are an attorney in Monroe County, Judge Kenneth Todd has requested that you convey your thoughts on this matter to the Monroe County Bar President.

P.P.S. A copy of this letter is available online at http://www.doxpop.com/prod/MonroeCounty20071025.pdf

Posted by Marcia Oddi on October 26, 2007 06:00 AM
Posted to Indiana Courts

Ind. Courts - Porter County Circuit Court Judge Mary Harper honored

The Chesterton Tribune reported earlier this week:

Porter County Circuit Court Judge Mary Harper has received a statewide award that honors leadership in addressing unmet legal needs of children.

The Indiana State Bar Association has selected Harper as this year’s recipient of the Honorable Viola J. Taliaferro Award. Taliaferro, the Monroe County Circuit Court Judge, is recognized nationally as an advocate for children, and the award named in honor is given annually to a person who best exemplifies her efforts on behalf of youth.

Harper was recognized for her service on the Mayor’s Commission Against Domestic Violence, the Porter County Early Intervention Planning Team, and the Porter County Community Corrections Advisory Board, all of which she chairs. She also serves on the Porter County Safe School Commission and the Porter County Juvenile Summit.

Under Harper, Porter County was named one of Indiana’s original three pilot site counties for a new Family Court. Harper also helped developed Porter County’s truancy diversion program known as Project ATTEND, affordable mediation services for low-income families, and a community service access center to link families to court-ordered services immediately following a juvenile court proceeding.

The State Bar Association also noted Harper’s role in obtaining funding for Porter County to implement juvenile mental health diversion programming and for securing Porter County’s participation in the Indiana State Juvenile Mental Health Screening, Assessment and Treatment Pilot Project, of which she serves as advisory board chair.

She also serves on the board of the Indiana Council of Juvenile and Family Court Judges. This year, Gov. Daniels appointed her to the board of the Indiana Criminal Justice Institute. She has been recently named to chair the Youth Division Committee of the Indiana Criminal Justice Institute.

Among her many awards, Harper has been honored with the Aled P. Davies Award for Public Policy on Health and the Marilyn J. Niequist Memorial Award for Outstanding Contributions to Youth. She has also been recognized as Judge of the Year by the Indiana Correctional Association and has received the Robert J. Kinsey Award for her work in judicial service for youth.

Taliaferro, of Bloomington, Ind., has served as a juvenile justice advisor to former U.S. Attorney General Janet Reno and as a member of the National Research Council on Juvenile Crime. She has also been named Judge of the Year by the National Court Appointed Special Advocate Association.

Posted by Marcia Oddi on October 26, 2007 05:52 AM
Posted to Indiana Courts

Courts - Kentucky Supreme Court joins 16 other states, including Indiana, with online webcasts of oral arguments

Brett Barrouquere of the AP reported yesterday in the Louisville Courier Journal:

The Kentucky Supreme Court is going live and online.

The high court started showing oral arguments yesterday through a Web site, joining at least 16 other states in employing the technology. The court estimated it had about 1,700 online viewers for its first Webcast, said Susan Clary, a spokeswoman for the court.

"It's gone great. No hitches," Clary said.

Kentucky joins states from Alaska to Florida in Webcasting oral arguments.

"Broadcasting Supreme Court oral arguments live gives every citizen access to our proceedings and an opportunity to see their highest court doing its work," Chief Justice Joseph Lambert said.

To see a Webcast, viewers go to the Supreme Court Web site, www.courts.ky.gov, and click on "Supreme Court LIVE."

Kentucky's high court finally had the technology in place to start Webcasting after studying the idea for several years, Clary said. The court is also looking into having attorneys file court records online, which is similar to what many federal courts require, Clary said.

ILB comments: Unfortunately, unlike Indiana's, the Kentucky oral arguments are not archived - you must tune in as they are taking place. This page lets you see the schedules of when the Kentucky Supreme Court is in session.

This posting Wednesday from Michael Stevens of the Kentucky Law Blog indicates his assumption that the arguments will be archived, but I see no indication of this on the Kentucky Court's site. Perhaps later.

Posted by Marcia Oddi on October 26, 2007 05:29 AM
Posted to Courts in general

Thursday, October 25, 2007

Ind. Decisions - One Indiana opinion today from the 7th Circuit

In Thomas M. Klein and Annie J. Rice v. DePuy Orthppaedics, et.al. (ND Ind., Judge Springmann)., a 12-page opinion, Judge Evans writes:

In this products liability/personal injury suit, the defendants, DePuy Orthopaedics, Inc., DePuy, Inc., and Johnson & Johnson, contend that North Carolina law applies and that the case must be dismissed under its six-year statute of repose. The plaintiffs, Mitch Klein and Annie Rice, * * * maintain that Indiana law applies and that the suit is timely under its more generous ten-year statute of repose. Alternatively, Klein contends that, if he is stuck with North Carolina law, an exception should be applied to permit his suit to be viewed as timely. According to DePuy, no such “exception” exists.

District Judge Theresa Springmann thought that DePuy had the better of the argument, so she granted its motion for summary judgment. Klein v. DePuy, Inc., 476 F. Supp. 2d 1007, 1023 (N.D. Ind. 2007). The case is now before us on Klein’s appeal. As only questions of law are presented, our review is de novo. * * *

In sum, we agree with Judge Springmann that North Carolina law, rather than Indiana law, applies to Klein’s claims. We also agree that, had the North Carolina Supreme Court received this case, it would not have applied a “disease exception” to the six-year statute of repose at issue. The plain language of the statute, its history, and North Carolina case law all support our belief that no exception was intended. We leave it up to the North Carolina legislature to amend the statute if we are mistaken.

For the foregoing reasons, summary judgment in favor of the defendants is AFFIRMED.

Posted by Marcia Oddi on October 25, 2007 02:16 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 20 NFP)

For publication opinions today (2):

Michael Loos v. State of Indiana - "Loos appears to assert that the trial court’s omission of the word “aggravating” in its sentencing statement is an abuse of discretion. We disagree. The trial court adequately described the factors that supported the eight-year sentence: Loos’s history of criminal behavior and his violent acts against a pregnant woman. The omission of the word “aggravating” does not make the court’s reasoning any less apparent, and we decline any invitation to require such a “magic word.” Creekmore v. State, 853 N.E.2d 523, 529 (Ind. Ct. App. 2006), trans. denied. The record supports the trial court’s findings, and “[t]he relative weight or value assignable to reasons properly found or those which should have been found is not subject to review for abuse.” Anglemyer, 868 N.E.2d at 491. We therefore affirm."

In Lawrence Golladay v. State of Indiana , an 11-page opinion, Judge Friedlander writes:

Lawrence Golladay appeals his conviction of Home Improvement Fraud,1 a class A misdemeanor. The following restated issue is dispositive of the appeal: Did conviction under I.C. 35-43-6-12(a)(4) violate due process when the defendant was charged under I.C. 35-43-6-12(a)(3)? We reverse.* * *

Golladay challenges the conviction on several bases, two of which warrant reversal. Although we reverse the conviction on due process grounds, we will briefly discuss the other basis for reversal because we find no other cases explaining the elements of Subsection (a)(4), and wish to provide clarification on that subject. In presenting this issue, Golladay frames the question in terms of sufficiency of the evidence. The real issue, however, in view of the trial court’s comments when announcing its decision, concerns the nature of the elements of the offense set out in Subsection (a)(4). * * *

According to the trial court’s interpretation, it is enough that a false promise was made in the contract and the homeowner was induced to sign the contract in part because of that false promise, even if the homeowner knew the promise was false. Golladay contends the homeowner must have been deceived by the false promise. We agree. * * *

Subsections (a)(3) and (a)(4) clearly define similar conduct. Both require the existence of a home improvement contract, and both require some sort of deception on the part of the defendant with respect to that contract. The only difference between the two is that Subsection (a)(4) requires that the defendant use such deception to induce the consumer to enter into the contract. As such, Subsection (a)(4) contains an element that is not contained in Subsection (a)(3). Thus, it is not an inherently included offense of Subsection (a)(3). * * *

Examining this language, it is apparent that the allegations concerning the means used to commit the crime charged (i.e., Subsection (a)(3)) do not include all of the elements of Subsection (a)(4); the element of fraudulent inducement to enter into the contract is missing. An offense is not factually included within the charging instrument if critical elements of the crime convicted are excluded from the charging instrument. Chinda v. State, 754 N.E.2d 981 (Ind. Ct. App. 2001), trans. denied. Thus, Golladay could not be convicted under Subsection (a)(4) because it included an element that was neither a part of Subsection (a)(3) (the crime charged) nor factually included in the charging instrument. * * * Therefore, the conviction under Subsection (a)(4) violated due process and must be reversed. We therefore remand with instructions to enter a judgment of acquittal as to that conviction. Judgment reversed.

NFP civil opinions today (4):

In the Matter of J.V., C.V., D.V. and A.V.; Jose Vega, Sr. and Patty Alonzo v. Allen County Department of Child Services (NFP) - "Sufficient evidence was presented to support the trial court’s determination that the children were CHINS."

Charles Robert Greer v. William R. Fuchs (NFP) - "Based on our review of the record, we cannot say that the trial court abused its discretion in ruling on Greer’s motion for relief from judgment without hearing additional testimony and permitting additional discovery." Affirmed.

Connie (Query) Reed v. Robert Query (NFP) - "In summary, we affirm the trial court’s modification of Father’s obligation to provide for N.Q.’s post-secondary education except to the extent such modification was made retroactive so as to terminate Father’s obligation with respect to such expenses incurred by N.Q. prior to Father’s filing of his petition for modification. We therefore remand with instructions for the trial court to correct the support modification order consistent with this opinion"

Randall Walden v. Val Majors Castrodale (NFP) - "Randall Walden appeals the denial of his “Petition to Rescind All Orders and Rulings” filed in relation to the 1996 dissolution of his marriage to Val Majors Castrodale. We affirm and remand."

NFP criminal opinions today (16):

William Taboada v. State of Indiana (NFP)

James C. Caldwell v. State of Indiana (NFP)

Raymond Freeman v. State of Indiana (NFP)

Joseph Aaron Burnett v. State of Indiana (NFP)

Shawn Alexander v. State of Indiana (NFP)

Eric McGee v. State of Indiana (NFP)

Michael Lewis v. State of Indiana (NFP)

Hugh Allen Hedden v. State of Indiana (NFP)

Diontae Green v. State of Indiana (NFP)

Marlon Bell v. State of Indiana (NFP)

Lonnie Piercefield v. State of Indiana (NFP)

Joseph Mangiaracina v. State of Indiana (NFP)

Andrea Wallace v. State of Indiana (NFP)

Oren Munson v. State of Indiana (NFP)

Sabrina I. McCammon v. State of Indiana (NFP)

Maurice Cole v. State of Indiana (NFP)

Posted by Marcia Oddi on October 25, 2007 01:58 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Upcoming oral arguments this week

Updating this ILB entry from Monday, previewing the oral arguments before the Indiana Supreme Court this week, yesterday (Wednesday) the Court heard arguments in the case of Hartman v. Keri. . Niki Kelly of the Fort Wayne Journal Gazette reports today:

INDIANAPOLIS – Two former IPFW students went to the Indiana Supreme Court on Wednesday to defend their ability to file harassment complaints against a professor without fear of legal retribution.

Virginia Hartman and Suzanne Swinehart – both graduate students in the School of Education – filed complaints alleging inappropriate behavior by then-Indiana University-Purdue University Fort Wayne professor Gabe Keri in 2003.

Both students alleged harassment by Keri. Hartman specifically also said Keri discriminated and retaliated against her by affecting her grade-point average and that he bashed homosexuals and Catholics during class.

Swinehart alleged Keri made inappropriate sexual comments to her, including a reference to her not having big enough breasts because she is white.

Keri’s supervisor received other complaints about his behavior, several of them anonymous, and wrote that “students continue to be subjected to discussion of inappropriate topics irrelevant to the content of the course within the classroom,” and “the trust and respect of students has been diminished by misuse of power.”

IPFW Chancellor Michael Wartell appointed Elaine Blakemore – chairwoman of the psychology department – to investigate the formal complaints of Swinehart and Hartman. Blakemore interviewed all those involved, including about a dozen current and former students.

Some of them had no complaints, but others offered accounts that were “startlingly consistent.”

She concluded that Keri created a hostile educational environment for both Swinehart and Hartman and had harassed Hartman.

Blakemore didn’t find Swinehart was harassed largely because the complaint wasn’t reported in the required time frame. As a result, Keri’s contract was not renewed for the next academic year because of unsatisfactory performance.

Keri later sued IPFW in federal court, but the case was dismissed. Then he sued Swinehart and Hartman in Allen Superior Court for alleged defamation. In that lawsuit, he alleged they “concocted a scheme” to file false complaints against him.

The issue before the high court Wednesday was whether the women are entitled to immunity because their allegations were made through the school’s anti-harassment proceedings.

The story continues:

Karen Orr, attorney for the women, told the five Indiana Supreme Court justices that all her clients did was follow the process set up by Purdue University and the legislature, including filling out the required forms, showing up to hearings and providing details to the investigator. And yet Keri sued them as a result of that process, she said.

“How can we encourage someone to file if we can’t protect them from retaliatory lawsuits?” she asked, noting a lack of immunity would create a chilling effect on the process.

For the women to have immunity, they must show their comments were made in a quasi-judicial proceeding.

While Orr argued that the procedure allowed for proper notice of the complaints to Keri and permitted him to present his own evidence and witnesses, several justices noted he was not allowed to use an attorney.

Swaray Conteh – attorney for Keri – also questioned the phone interviews Blakemore had with other students because they were used to establish a pattern, but no transcripts were made of the calls and Keri was never told who the students were.

The court will rule in the coming months.

You can watch yesterday's oral arguments here.

Posted by Marcia Oddi on October 25, 2007 08:03 AM
Posted to Indiana Decisions

Wednesday, October 24, 2007

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

For publication opinions today (3):

Darrel M. Maymon v. State of Indiana - On rehearing: "We agree that the proper remedy would be to remand to the trial court for retrial of the two burglary counts where theft did not occur. We grant rehearing and vacate our previous order to enter convictions for residential entry on these two convictions and to sentence Maymon accordingly. Instead, we reverse Maymon’s two convictions for Class A felony burglary and remand for retrial on those two counts. We reaffirm our original holding in all other respects."

State of Indiana v. Charles A. Parham, II - "The State of Indiana brings this appeal from the Allen Superior Court’s grant of a motion to suppress filed by defendant Charles A. Parham II (“Parham”). The State raises one issue: whether the trial court erred when it suppressed evidence from a search of the vehicle Parham was driving. We affirm."

In Steven Shelby v. State of Indiana , a 10-page opinion, Judge Bradford writes:

Following a jury trial, Appellant-Defendant, Steven Shelby, appeals his conviction and sentence for Auto Theft as a Class D felony and the trial court’s finding him to be a Habitual Offender.1 Upon appeal, Shelby challenges the sufficiency of the evidence to support his conviction and further claims that the trial court erred by rejecting certain proposed jury instructions. We reverse and remand. * * *

Having found the evidence insufficient to support Shelby’s conviction for auto theft, we find it unnecessary to reach Shelby’s challenge to the trial court’s rejection of his proposed jury instructions. Accordingly, we reverse and remand to the trial court with instructions to vacate Shelby’s conviction for auto theft and the resulting habitual offender finding resting upon that conviction.

NFP civil opinions today (3):

In Re the Paternity of K.B.G.; Dayonna Murdock v. Joseph Laycock (NFP) - "On appeal, Mother does not challenge the trial court’s decision to allow Laycock to proceed with his petition to set aside the original paternity order pursuant to Rule 60(B)(8). Mother only argues that the trial court “was required to dismiss” Laycock’s petitions to set aside the paternity order because Laycock failed to establish “fraud on the court.” Because the trial court did not rely on a finding that Laycock had established fraud on the court in issuing its decision, we need not address Mother’s argument. Consequently, we affirm the trial court’s order denying Mother’s motion to dismiss Laycock’s petition to set aside the paternity order naming Godbey as K.B.G.’s father. Affirmed."

Jerry Fitchpatrick v. Cathy Fitchpatrick (NFP) - "Having concluded that the trial court did not abuse its discretion by ordering Jerry to pay $150.00 per week in spousal maintenance to Cathy and having further concluded that the trial court did not abuse its discretion by denying Cathy’s claim for COBRA insurance as a part of her spousal maintenance, we affirm the judgment of the trial court. Likewise, having concluded that Cathy’s request for appellate attorney fees is unwarranted, we deny her request for such relief.
The judgment of the trial court is affirmed."

Dawn Frederick v. Jim Frederick (NFP) - "The trial court abused its discretion when it failed to assign a value to the Fun Time Scuba business and failed to include the 1966 Chevrolet Impala in the marital estate. Accordingly, we remand this case for recalculation and redistribution of the marital estate. Reversed and remanded for proceedings consistent with this opinion."

NFP criminal opinions today (8):

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

T.L. v. State of Indiana (NFP)

Michael Schackart v. State of Indiana (NFP)

Artie Kembal Person v. State of Indiana (NFP)

Joseph Kent Sowder v. State of Indiana (NFP)

W.P.T. v. State of Indiana (NFP)

Nicholas R. Corbin v. State of Indiana (NFP)

Brent Besser v. State of Indiana (NFP)

Posted by Marcia Oddi on October 24, 2007 12:42 PM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Indianapolis Public School Board met illegally Monday night"

Andy Gammill of the Indianapolis Star reports today:

The Indianapolis Public School Board met illegally Monday night when it convened in private to discuss closing five schools, several public meeting experts said.

Board members justified the closed-door executive session by citing a state law that allows private meetings to discuss pending litigation. * * *

How the district handles its school closings, IPS said, relates to the 1968 lawsuit in which the district was found guilty of de jure segregation. The district is still under a court order on its implementation of that ruling, and a district spokeswoman said officials cited that case in good faith.

Districts cannot, however, cite cases that already have been closed, said Heather Neal, the state's appointed public access counselor. The counselor is appointed by the governor to help the public understand the state's laws governing access to records and public meetings.

IPS could have such an executive session, Neal said, only if the case was still pending. She said the court order signifies the case was finished. The late Judge S. Hugh Dillin ruled against the district in 1971. * * *

"It's astonishing, and it's an affront to the public that they would make that sort of claim," said Fred Cate, a law professor at Indiana University. "The general principle to the law is that all of the public's business should be done in public."

IPS attorneys did not return phone calls Tuesday seeking comment. Superintendent Eugene White said even if pending litigation was a mistaken basis for a closed meeting, the law would allow the board to meet privately to discuss personnel issues that arise from closing schools.

Indiana law allows boards to hold executive sessions on personnel matters only to discuss job-performance reviews or to interview job candidates. Cate said that limits the board to only a few narrow topics.

The district, Cate said, should only be holding an executive session on pending litigation to discuss strategy with its attorneys and not to discuss broad issues that could be related to a case.
IPS had other options available to lay the groundwork for school closings without making the information public, Cate said. But once the board became involved, it should have been open, he said.

Posted by Marcia Oddi on October 24, 2007 08:09 AM
Posted to Indiana Government

Ind. Law - How Hoosiers’ sales tax stacks up

The story this morning in the Indianapolis Star reporting on Gov. Daniels' speech last night announcing a property tax plan contains a side-bar intended to show how an increase in the state sales tax from 6% to 7% would stack up against some other states:

Indiana’s state sales tax would be 7 percent, higher than other Midwestern states. How Indiana’s sales tax compares now:
•: Illinois: 6.25 percent.
•: Indiana: 6 percent.
•: Kentucky: 6 percent.
•: Michigan: 6 percent.
•: Missouri: 4.225 percent.
•: Ohio: 5.5 percent.
Source: Taxfoundation.org

In the story, the Star calls the proposed 7% rate "the nation’s highest sales tax" and a separate story this morning is headlined, "Sales tax would be highest in U.S." Some quotes:

Indiana will have the highest sales tax rate in the nation, joining just four other states that tack on 7 percent every time shoppers buy a pair of shoes, a gallon of paint, a car, or any of thousands of other purchases, under the governor's plan.

Gov. Mitch Daniels on Tuesday evening proposed increasing the state sales tax from 6 percent to 7 percent, a level matched only by Tennessee, Rhode Island, New Jersey and Mississippi, according to the Federation of Tax Administrators. * * *

[However] shoppers in many other states actually pay more than 7 percent after counties add local options to the state sales tax, often boosting it by several more percentage points.

In some Tennessee counties, for example, the sales tax is as high as 12 percent. Indiana does not allow local options on top of the state sales tax.

For a better picture, see this chart from The Sales Tax Clearinghouse, showing state sales tax rates along with combined average city and county rates.

Posted by Marcia Oddi on October 24, 2007 07:42 AM
Posted to Indiana Law

Tuesday, October 23, 2007

Courts - More on: Pennsylvania Rule Prohibiting Judicial Candidates’ Speech Enjoined

This ILB entry from May 14th quoted a press release from attorney James Bopp, Jr., lead counsel for the plaintiffs in a Pennsylvania suit, stating that: "Federal District Court Judge Marvin Katz has granted a preliminary injunction against provisions of the Pennsylvania Code of Judicial Conduct that prohibited state court judicial candidates from responding to a questionnaire asking their views on legal and political issues." The ILB noted: "Bopp obtained a similar remedy in Indiana last November; see this Nov. 14, 2006 ILB entry."

This ILB entry from May 23rd begins:

Torsten Ove of the Pittsburgh Post-Gazette has a long article yesterday on the impact of the recent federal district court decision in Pennsylvania enjoining that State's rules that forbid judicial candidates from making “pledges or promises” of conduct in office or statements that “commit or appear to commit” candidates on issues likely to come before them. The article is too long to quote in full but deserves close reading, particularly because a similar federal court decision was issued here in Indiana last November.

Today Peter Jackson of the AP reports:

HARRISBURG, Pa. - Judicial candidates in Pennsylvania are free to discuss the issues of the day on the campaign trail, so long as they do not promise to rule in a particular way once they are elected, a federal judge has ruled.

"Any speech by a judicial candidate, short of a pledge, promise, or commitment to adjudicate a particular result, is speech permitted by the [Pennsylvania Code of Judicial Conduct] and by the First Amendment," Senior Judge Marvin Katz of the U.S. District Court in Philadelphia wrote in a decision issued last week.

The ruling stemmed from a lawsuit filed in the spring by the Pennsylvania Family Institute, which sent questionnaires to more than 100 candidates for state and county judgeships in which the group solicited the candidates' views on issues including abortion, gay marriage and school prayer.

Six Republican candidates running in the May 15 primary joined in the lawsuit, saying they wanted to respond to that survey and to one from another group but were barred by judicial rules.

The plaintiffs said portions of the code, written by the Pennsylvania Supreme Court, were so vague that they violated candidates' right to free speech.

Katz, who also lifted a May order that temporarily barred enforcement of rules governing judicial campaign speech, stressed that they were only one factor that a judicial candidate must consider in deciding whether to speak out on controversial topics.

"Many candidates refused to answer those questions, because they feared their answers would force them to recuse themselves from future cases, and more importantly, cast doubt on the impartiality and integrity of Pennsylvania's courts," Katz wrote. He said he "wholeheartedly agreed with these sentiments."

Only 19 candidates responded to the questionnaire, according to court papers.

Oddly, little other than today's AP story has appeared on this 68-page ruling, Penn. Family Institute v. Celluci, issued Oct.16. The ILB has obtained a copy.

Posted by Marcia Oddi on October 23, 2007 03:28 PM
Posted to Courts in general | Indiana Courts

Ind. Decisions - Court of Appeals issues 9 today (and 9 NFP)

For publication opinions today (9):

Invol. Term. of Parent-Child Rel. of B.M., Monica Runkel v. Miami Co. Dept. of Child Services - "Mother raises one issue, which we revise and restate as whether Ind. Code § 31-34-1-16, which limits the ability to terminate parental rights to a child voluntarily placed out of the home for special treatment, requires reversal of the trial court’s order terminating Mother’s parental rights. We affirm."

Billy R. Mead, Jr. v. State of Indiana - "Based on the foregoing, we conclude that the trial court (1) properly granted Mead’s Petition for Permission to File a Belated Notice of Appeal, and (2) did not abuse its discretion in sentencing Mead."

In State of Indiana v. Christine Penwell, an 8-page opinion, including a 3 -page dissent, Judge Kirsch writes:

The State of Indiana appeals the trial court’s order discharging Christine Penwell for violation of Indiana Criminal Rule 4(C) contending that the trial court erred in charging the delay resulting from a stay pending Penwell’s petition for certiorari to the Supreme Court of the United States to the State. We agree. We reverse and remand for further proceedings. * * *

Penwell sought and received an indefinite delay in her trial to allow her to file a petition for certiorari with the United States Supreme Court. Having done so, it was incumbent upon her to take affirmative action to notify the trial court that she was dissatisfied with the delay and desired to go to trial. Until she did so, the time under Crim. R. 4 (C) was attributable to her. The trial court erred in granting Penwell’s motion for discharge.

ROBB, J., concurs.
BARNES, J., dissents with separate opinion. [which begins] I respectfully dissent. I believe the State fell asleep at the switch here, and that the delay in setting a trial date for Penwell after the United States Supreme Court denied her petition for certiorari is chargeable to the State.

In Ralph Belvedere v. State of Indiana , a 22-page opinion, including a 4-page dissent, Judge Najam writes:

Belvedere raises three issues for our review, which we restate as: 1. Whether our Supreme Court’s recent decision in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), applies and prohibits the introduction of evidence at trial that was obtained following a police search of Belvedere’s trash. 2. Whether the good faith doctrine can be applied to that trash search. We reverse. * * *

In sum, we decline to hold that Litchfield does not apply to Belvedere, a person similarly-situated to the Litchfields and whose case was “pending on direct review or not yet final” at the time Litchfield was decided. See Smylie, 823 N.E.2d at 687; Pirnat, 607 N.E.2d at 974. Hence, Litchfield must be applied in our analysis of the constitutionality of Detective Earley’s search of Belvedere’s trash. In reviewing that search under Litchfield, we conclude that the search violated Article I, Section 11 of the Indiana Constitution, and that Indiana’s constitutional good faith exception cannot save the evidence seized by that search.

We also hold that Belvedere has “a right to invoke a new constitutional rule promulgated by our [S]upreme [C]ourt.” * * * Accordingly, the statutory good faith exception cannot be applied here as it would vitiate Belvedere’s right to invoke the new rule promulgated by our Supreme Court. Thus, all evidence seized from Detective Earley’s trash search, including the evidence seized pursuant to the subsequent search warrant, should have been excluded from Belvedere’s trial. As no other evidence was introduced by the State, Belvedere’s convictions must be reversed.

MATHIAS, J., concurs.
BRADFORD, J., dissents with separate opinion. [which begins] While I agree, in the abstract, with the majority’s conclusion that the Indiana Supreme Court’s decision in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), applies retroactively,7 I must respectfully dissent, as I conclude that the good faith exception applies in this case. Consequently, I would affirm the trial court in all respects.

David J. Mitchell v. Alicia Mitchell n/k/a Alicia Zamarron - "It was not an abuse of discretion for the trial court to reduce David’s responsibility for spousal maintenance to $250 per month and to assign $1,500 of Alicia’s attorney’s fees to David. We affirm the trial court on all issues."

Ricardo B. Fuller v.State of Indiana - "Fuller’s conviction and sentence for Class C felony stalking must be reversed because of the untimeliness of the addition of the stalking charges. There is sufficient evidence to support his convictions for Class A felony burglary and Class B felony criminal confinement. Finally, we conclude his sentence is not inappropriate. Affirmed in part and reversed in part."

Timothy D. Knisely v. Susan L. Forte "Based on the foregoing, we conclude that the trial court did not abuse its discretion in modifying its Order for child support and uninsured medical expenses. In addition, the trial court did not err in ordering Timothy to make these payments retroactive to a date prior to Susan’s filing of a Petition for Modification of Support. However, we remand to the trial court for further consideration of the post-secondary education expense in line with this opinion"

In Jeffrey Padgett v. State of Indiana, a 15-page opinion, Judge Riley states as the second issue:

Whether the trial court: (a) failed to follow proper procedure, and (b) violated the federal Constitution’s prohibition against ex post facto laws in determining that Padgett is a sexually violent predator under I.C. § 35-38-1-7.5 (2006). * * *

Here, we conclude that the 2006 version of I.C. § 35-38-1-7.5 altered the definition of a sexually violent predator for some offenders. Previous versions of the statute, versions in effect when Padgett committed the crime and when he was charged, required consultation with two experts before any defendant could be found a sexually violent predator. In contrast, the version in effect at the time Padgett was sentenced required the trial court to find him a sexually violent predator per se for having been convicted of child molest as a Class A felony under I.C. § 35-42-4-3. See I.C. §§ 35-38-1-7.5 (2003); 35-38-1-7.5 (2006). Thus, the 2006 version changed the elements or ultimate facts and evidence necessary to prove that a defendant is a sexually violent predator. See Stroud, 809 N.E.2d at 288. In this sense, we conclude Padgett is correct in identifying the 2006 version as ex post facto law in his case.

Nevertheless, as the trial court stated in its Order finding Padgett a sexually violent predator, Padgett’s revised plea agreement specifically stated that he agreed “to comply with all conditions of the Indiana sex offender registry statutes . . . and any successor statutes and any similar statutes in any other state which the offender resides, as well as all statutory requirements imposed upon sexually violent predators.” (Appellant’s App. p. 215) (emphasis added). Therefore, as a plea agreement is contractual in nature and binding upon the defendant, we conclude that the trial court properly found Padgett a sexually violent predator under the version of I.C. § 35-38-1-7.5 in effect at the time of sentencing.

In Mary C. Konger v. Tamorah Schillace, K. Tina Lewis, Kevin P. Konger, Teresa L. McEvoy and Molly E. Miller, a 15-page opinion, Judge Najam concludes:

Mary was individually liable on the Line of Credit, and, as such, that debt was hers to pay. Although Mary may have had a contingent claim against Dean’s estate, the Indiana Code required her to file that claim within three months of the published notice of Dean’s death. See I.C. §§ 29-1-14-1(a)(1), -7. She did not. Thus, we cannot say that the trial court erred in concluding that Mary was “barred from receiving contribution from the estate towards payment of the [L]ine of [C]redit,” and, therefore, that she “is required to fulfill her contractual responsibility and to continue to make payments [on the Line of Credit], so as to maintain the remainderm[e]n’s interest in the real estate.”1 Nor can we say that the trial court abused its discretion in denying Mary’s Petition that Dean’s estate pay the monthly payments due on the Line of Credit during administration. Affirmed.

NFP civil opinions today (2):

Termination of the Parent-Child Relationship of K.M. and Z.M.; Tammy Castle v. Tippecanoe County Department of Child Services (NFP) - termination, affirmed.

In Re The Guardianship of C.M., N.W.M., T.W.; Virginia Watson and Howard Watson v. Donald Mier and Rose Mier (NFP) - "Florida satisfied the home state test because the Parents and the Children had lived there for five years, and since the Parents still reside there. The Children’s continued absence from Florida, as a result of the Grandparents’ actions, does not change the fact that Florida is the Children’s home state. Therefore, we conclude that the trial court erred in seeking to find jurisdiction in Indiana under an alternative basis. Our conclusion makes it unnecessary to address the lack of evidence and/or findings regarding either abandonment by the Parents or a rejection of jurisdiction by a Florida court. Reversed."

NFP criminal opinions today (7):

Eric Pieper v. State of Indiana (NFP)

Michael Hill v. State of Indiana (NFP)

Sandra Wong v. State of Indiana (NFP)

Everett L. Clair, III v. State of Indiana (NFP)

Shawn M. Siener v. State of Indiana (NFP)

James M. Joyce v. State of Indiana (NFP)

Tommy D. Ford v. State of Indiana (NFP)

Posted by Marcia Oddi on October 23, 2007 01:01 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: Trial court ruling could void IMPD arrests

As noted here in the ILB on Oct. 9th, the Supreme Court has granted emergency transfer under Rule 56(A) in the case of State v. Cheryl Oddi-Smith, bypassing the Court of Appeals. Oral arguments have been set for Wed., Nov. 14th at 9:30 AM. Appellant's brief was due yesterday, Oct. 22. Appellee's brief is due Nov. 7.

Today a press release issued by the Appellant's counsel, Attorney General Steve Carter, announces:

The Attorney General’s office has filed its appeal with the Indiana Supreme Court, arguing that former members of the Indianapolis Police Department (IPD) and the Marion County Sheriff’s Department (MCSD), who transferred to the new Indianapolis Metropolitan Police Department (IMPD), did not have to be re-sworn in order to retain full law enforcement authority.

Officers of the IMPD are properly hired, trained, and legally entitled to do their jobs. Nothing in the law requires officers to be resworn after the merger of law enforcement bodies.”

The attorney general asked the Supreme Court to expedite the appeal and the Court agreed after the Marion County Superior Court dismissed criminal charges against a defendant charged with driving while intoxicated. The trial court dismissed the charges stating that the arresting officer had not been resworn after the merger.

In the appeal the state argues: "Nothing in either Indiana Code Section 5-4-1-1 or the more relevant Indiana Code Section 5-2-1-17 requires re-swearing of an officer when his department consolidates with another agency and he automatically becomes a sworn officer with the new agency."

Posted by Marcia Oddi on October 23, 2007 12:41 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit issues opinion today on Fair Debt Collection Practices Act

In Evory v. RJM Acquisitions (a combined opinion where SD Ind. Judge Hamilton authored two of the decisions, the other two cases are out of Illinois), a 17-page opinion, Judge Posner writes:

We have consolidated for decision four intertwined cases that present nine questions under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq., several of which have engendered considerable controversy at the circuit level and even some circuit splits. We shall first try to answer the questions and then indicate the disposition of each of the appeals that follows from our answers.

Here are the questions:

1. Whether, if the consumer (as the statute refers to the putative debtor) is represented by a lawyer, a debt collector must give the same written notice to the lawyer that section 1692g would require were the consumer unrepresented and the notice sent directly to him.

2. Whether communications to lawyers are subject to sections 1692d through 1692f, which forbid harassing, deceptive, and unfair practices in debt collection. Compare Sayyed v. Wolpoff & Abramson, 485 F.3d 226 (4th Cir. 2007), answering yes, with Guerrero v. RJM Acquisitions LLC, No. 05-15121, 2007 WL 2389825 (9th Cir. Aug. 23, 2007) (per curiam), and Kropelnicki v. Siegel, 290 F.3d 118, 128 (2d Cir. 2002), both answering no.

3. Whether, if the answer to question 2 is yes, the standard applicable to determining whether a representation is false, deceptive, or misleading under section 1692e is the same whether the representation is made to the lawyer or to his client.

4. Whether a settlement offer contained in a letter from the debt collector to a consumer is lawful per se under section 1692f. Compare Lewis v. ACB Business Services, Inc., 135 F.3d 389, 398-400 (6th Cir. 1998) (yes), with Goswami v. American Collections Enterprise, Inc., 377 F.3d 488, 495 (5th Cir. 2004) (no).

5. If it is not per se lawful, whether its lawfulness should be affected by whether it is addressed to a lawyer, rather than to the consumer directly.

6. Whether there should be a safe harbor for a debt collector accused of violating section 1692e by making such an offer.

7. Again, if such a letter is not per se lawful, what type of evidence a plaintiff must present to prove that a settlement offer violates section 1692e.

8. Whether the determination that a representation is or is not false, deceptive, or misleading under section 1692 is always to be treated as a matter of law. Compare McMillan v. Collection Professionals, Inc., 455 F.3d 754, 759 (7th Cir. 2006); Taylor v. Cavalry Investment, LLC, 365 F.3d 572, 575 (7th Cir. 2004), and Walker v. National Recovery, Inc., 200 F.3d 500, 502, 504 (7th Cir. 1999) (no), with Wilson v. Quadramed Corp., 225 F.3d 350, 353 n. 2 (3d Cir. 2000), and Terran v. Kaplan, 109 F.3d 1428, 1432-33 (9th Cir. 1997) (yes).

9. Whether, if that determination is not always a matter of law, nevertheless a charge under section 1692e can sometimes be dismissed on the pleadings on the ground that the challenged representation was, as a matter of law, not false or misleading.

Posted by Marcia Oddi on October 23, 2007 12:27 PM
Posted to Ind. (7th Cir.) Decisions

Courts - "Lawsuit Targets Facebook Mobile Texting"

According to an AP story out of San Francisco written by Michael Liedtke (and picked up this morning by the Indy Star), an Indiana woman (from Patriot, IN) with a Chicago attorney is bringing suit in a San Jose CA federal court against Facebook.com.

Posted by Marcia Oddi on October 23, 2007 12:06 PM
Posted to Courts in general

Environment - "Will U.S. Steel -- Gary Works be allowed to increase or decrease its discharges to the Grand Calumet River when the company's wastewater permit is renewed?"

"Will U.S. Steel -- Gary Works be allowed to increase or decrease its discharges to the Grand Calumet River when the company's wastewater permit is renewed?" writes Gitte Laasby of the Gary Post-Tribune in a story today. "For now," the story continues, "the answer is both."

A column in the Monday Martinsville Reporter-Times, by economist Morton Marcus, comments on the state of Indiana's environment:

Greenness: Want to change Indiana's image? Then change its reality. According to Forbes.com, Indiana ranks 49th of the 50 states in greenness. We ranked above only West Virginia. Our score was 15.3 on a 50-point scale; Vermont was first with a score of 43.6 out of 50. If New Jersey can be in the top ten, why can't we?

Greenness involves the carbon footprint of a state, meeting EPA water and air standards, smog and ozone measures, hazardous waste management, and other factors. Given our lack of amenities, Indiana's polluted rivers, air, and land can only deter responsible people from locating here.

When the federal EPA repudiates Indiana's Department of Environmental Management, all we can say is that things are better now than in the past. When will Hoosier administrators be able to say, with honesty, that we have achieved long-term environmental goals? That day will come when we recognize that the economic benefits realized by polluters impose greater costs on the rest of us.

Note: The national agency is the EPA accepting responsibility for Protection; our department is IDEM assuming Management. There's a difference in attitude for you.

Posted by Marcia Oddi on October 23, 2007 11:55 AM
Posted to Environment

Ind. Courts - Evansville attorney previously charged with meth violatons allegedly fails drug test

The ILB has had previous entries on two Evansville attorneys charged separately with meth violations. See the list here. Today Kate Braser of the Evansville Courier & Press reports:

A local attorney whose trial on meth charges was supposed to begin this week is now in the Vanderburgh County Jail, awaiting a final confirmation for whether she tested positive for drugs during a recent check-in.

Teresa Perry, 33, appeared in court early Monday. She has been in custody since the drug test Friday.

During the hearing before Vanderburgh Superior Court Judge Wayne Trockman, defense attorney Doug Walton said Perry is "adamant" the test will prove to be a false positive.

"I spoke with my client and she is adamant that she hasn't done any violations and we are asking that the results be tested further," Walton said, requesting the judge allow Perry to be released on $500 cash bond pending the results of additional tests.

Prosecutors objected to allowing Perry to be released from the jail, and Trockman said Perry's bond will remain at $25,000 cash only.

Walton also asked Trockman to order a hair-follicle test.

"The court will not order a hair test, but we will allow you to do a test privately and will ask that the jail assist," Trockman said.

"I understand there are false positives, and the confirmation test results should be available within the next two or three days."

Trockman said the results of the confirmation test will be conclusive for the court.

Perry was arrested in May and faces eight counts related to possessing and distributing methamphetamine.

She allegedly sold drugs to a police informant, and investigators reportedly discovered a meth lab inside her rental home in the 3300 block of Waggoner Avenue.

The home is within 1,000 feet of McGary Middle School.

Posted by Marcia Oddi on October 23, 2007 11:48 AM
Posted to Indiana Courts

Ind. Courts - "Terre Haute Attorney Arrested"

From WTHI News out of Terre Haute, Joe Stoll reports, complete with video, that:

A hit and run accident ends with a Terre Haute attorney in jail.

Attorney William Earls is in the Vigo County Jail charged with operating a vehicle while intoxicated, possession of marijuana and running from the scene of a crash.

It was quite an accident that ended with a power pole getting snapped, power outages and a prominent Terre Haute attorney behind bars.

This was the scene of an accident Mnday night on US. Hwy. 40 near Fruitridge Ave.

Police say attorney William Earls went off the road toppling a speed limit sign and then striking a utility pole - knocking out power to more than 100 people.

Authorities say Earls then fled the scene. Police caught up with Earls at his Terre Haute home.

Posted by Marcia Oddi on October 23, 2007 11:43 AM
Posted to Indiana Courts

Ind. Decisions - "Drug question improper: Tossing of evidence by Allen judge is upheld"

The COA opinion yesterday in the case of State of Indiana v. Raymond L. Washington, Jr. (see ILB entry here - 2nd case), is the subject of a story today in the Fort Wayne Journal Gazette, reported by Niki Kelly. Some quotes:

The Indiana Court of Appeals ruled Monday that a Fort Wayne police officer violated the Indiana Constitution when he asked a man stopped for possible traffic violations whether he had any drugs on him.

The case is one of “first impression,” which means the court has not previously dealt with the issue. * * *

During the stop, Hoffman asked Washington whether he had any guns, drugs or anything that might harm the officer. Washington answered that he had marijuana in his front pocket and was arrested and charged with misdemeanor drug possession.

Allen Superior Court Magistrate Robert Ross tossed out the marijuana as evidence, saying the officer violated the state’s constitutional protections against unreasonable search and seizure.

According to Monday’s appellate court ruling, Hoffman claimed Washington was acting nervous during the traffic stop, including not making eye contact with him.

But the appeals court said that wasn’t enough to justify the question.

“Because it is not at all unusual that a citizen may become nervous when confronted by law enforcement officials, other evidence that a person may be engaged in criminal activity must accompany nervousness before the nervousness will evoke suspicion necessary to support detention,” the decision said.

Several times in the 2-1 opinion, the judges mentioned the increasing practice of officers stopping vehicles for minor traffic offenses and asking about the presence of illegal substances.

The ruling upholds the rights of officers to ask about weapons out of concern for officer safety.

But the court found Hoffman’s inquiry about drugs in this case – in which there were no indication of drugs or other criminal activity – was not related to the purpose of the stop or to officer safety.

“While we concede that Officer Hoffman’s inquiry was minimal in terms of duration, it nevertheless extended the duration of the stop,” the decision said. “Of greater significance, however, is the fact that to allow police to routinely question individuals during a traffic stop about the presence of drugs would open the door to all sorts of inquiries, including whether the person cheated on his last year’s tax return or had in the past illegally pirated music from the Internet. While tax fraud and Internet piracy are – like illegal drug possession – serious concerns, routine traffic stops are not the place for such inquiries.”

Posted by Marcia Oddi on October 23, 2007 11:33 AM
Posted to Ind. App.Ct. Decisions

Monday, October 22, 2007

Courts - More on "For the elite of the Supreme Court Bar, this is the Gilded Age. Or call it the Age of the Guild"

Updating this ILB entry from earlier today, Richard Lazarus has now made his article, "Advocacy Matters Before and Within the Supreme Court: Transforming the Court By Transforming the Bar" . to be published in the Georgetown Law Journal, Vol. 96, 2007, available online at SSRN. Access it here. The abstract:

During the past two decades, the Supreme Court has witnessed the emergence of an elite private sector group of attorneys who are dominating advocacy before the Court to an extent not witnessed since the early nineteenth century. This development is significant for the simple reason that advocacy matters, including before the Supreme Court. Better, more effective advocates influence the development of the law and there is generally no court where such advocacy can wield more far-reaching influence than the Supreme Court. And that is precisely what the modern Supreme Court Bar has quietly and increasingly been accomplishing in recent years. The Court grants the petitions filed by the expert members of the Bar at a significantly higher rate and they also prevail on the merits more frequently. This article documents the extent of the modern Bar's domination of the Court's docket, arguments, and rulings, considers the extent to which business interests who serve as the Bar's primary clients are enjoying heightened success before the Court as a result, and suggests ways of promoting a fairer allocation of Supreme Court advocacy expertise in the future

Posted by Marcia Oddi on October 22, 2007 04:49 PM
Posted to Courts in general

Ind. Law - More on "IU rifle incident is quickly resolved: No one was hurt; law student arrested"

Following up on this ILB entry from Oct. 17th, which quoted from the blog, Above the Law, the WSJ Blog today claims more information about the incident:

What jumped out at the [WSJ] Law Blog were reports that he was apparently aiming his rifle at his Real Estate Transfer Finance and Development casebook (pictured, top right). The book was found in the parking lot, shot clean through by two rounds, according to investigators. Sneed, who reportedly had an AR-15 and an AK-47 in his apartment, is reportedly set to undergo a psychiatric evaluation while awaiting a court appearance.

The Law Blog reached out for the authors of Real Estate Transfer Finance and Development, law professors Grant Nelson (pictured, bottom left) and Dale Whitman (pictured, bottom right). The book, now in its seventh edition, was first published in 1976. As far as we know, it’s the first time it’s been shot at.

Posted by Marcia Oddi on October 22, 2007 02:27 PM
Posted to Indiana Law

Ind. Courts - Still more on "Marion Superior Court judges plan to start cracking down on prospective jurors who don't show up on the days they're assigned"

Updating this ILB entry from last Saturday, Oct. 20th, Jon Murray of the Indianapolis Star reports this afternoon that:

More people than usual reported for jury duty this morning in Marion Superior Court, spurred by the judges' vow to call no-shows back to court and institute penalties. * * *

Starting today, jurors who don't show when their groups are called in will hear from the court. Summonses will go out to the remaining 45 percent or so who didn't come this morning. They'll face a judge, who will give them a new date for jury duty. If they fail to show again, they will be held in contempt of court.

Penalties could include community service and, in some instances, time in jail.

Today's turnout, 55 percent, might not seem significant, but it beat the 41 percent who showed up a week earlier, well short of the courts' requests on a particularly busy day. The result was delays to the start of at least two trials.

Judge Mark Stoner, who oversees the jury pool, aims to drive turnout up permanently. Last year, 52 percent of those called for a given day didn't show up. The number fluctuates, but it's edged closer to 60 percent lately.

Posted by Marcia Oddi on October 22, 2007 01:42 PM
Posted to Indiana Courts

Ind. Decisions - Two Indiana decisions today from 7th Circuit

In USA v. Wiszowaty (ND Ind., Judge Moody), a 7-page opinion, Judge Evans writes:

A jury convicted Jim Wiszowaty, an orthopedic and prosthetic products salesman, of one count of conspiracy to commit health care fraud and 64 counts of health care fraud. He was sentenced to a 41- month prison term. Wiszowaty now appeals, claiming that the district court should have admitted into evidence a General Accounting Office report highlighting the poor quality of information Medicare provides to doctors. Second, he argues that the district court erred in refusing to instruct the jury that if he reasonably relied on the statement of a public official when he acted as he did, he should be found not guilty. * * * Affirmed.

In In re Boone County Utilities (SD Ind., Judge McKinney), a 7-page opinion, Judge Evans concludes:

Proof of claim 16 is clearly untimely. After the deadline for claims, one day before the hearing (which had been adjourned two times), amended claim 16 was filed. Not only is it untimely, but, as we said, it is a different claim. It does not mention a contract; it changes the date on which the debt was incurred from the date of the contract (September 8, 1995) to March 12, 2003; and it increases the claim from $648,200.35 to over $7 million. Yet, somehow Branham expects us to conclude that the bankruptcy judge abused his discretion in determining that this claim does not relate back to the prior claims and is therefore untimely. That we cannot do. As the district court (Chief Judge Larry J. McKinney) aptly noted:

The Bankruptcy Court has the responsibility to administer its cases. It is well within its discretion under the rules to decide that an amended claim filed the night before a hearing, which had been continued twice by the claimant . . . is just too late.

We agree. The judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on October 22, 2007 01:29 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 11 today (and 16 NFP)

For publication opinions today (11):

In Joseph Guzik v. Town of St. John, Indiana , a 25-page opinion, Chief Judge Baker writes:

Appellant-plaintiff Joseph Guzik appeals the trial court’s grant of summary judgment in favor of appellees-defendants Town of St. John (the Town), and Town of St. John Metropolitan Police Commission (Police Commission) with regard to his claim for a declaratory judgment and injunctive relief, which stemmed from his allegedly coerced resignation as the Town’s police chief. * * *

We conclude that the trial court properly ordered various portions of Guzik’s affidavit to be stricken from the record. Additionally, while we find that the trial court properly granted the Town and Police Commission’s motion for summary judgment, we further conclude that the motion should also have been granted with regard to Guzik’s request for the return of his property. Thus, we affirm in part, reverse in part, and remand this cause to the trial court with instructions that it enter final judgment for the Town and Police Commission as to Guzik’s request for the return of his personal property.

In State of Indiana v. Raymond L. Washington, Jr., a 13-page, 2-1 opinion, Judge Kirsch writes:

The State of Indiana appeals the trial court’s order that granted Raymond L. Washington, Jr.’s motion to suppress marijuana that was seized from his pocket during a traffic stop. The sole restated issue is whether, when a person is stopped for a traffic infraction and there are no indicia of criminal activity, the police officer violates Article 1, Section 11 of the Indiana Constitution against unreasonable searches and seizures when he asks the individual if he is in possession of drugs. We affirm. * * *

We conclude that under the totality of the circumstances Officer Hoffman’s inquiry that asked whether Washington had any drugs on him or with him was unreasonable within the meaning of Article 1, Section 11 of the Indiana Constitution. Consequently, the trial court properly granted Washington’s motion to suppress the marijuana seized during the traffic stop.

ROBB, J., concurs.
BARNES, J., dissents with separate opinion. [that begins] I respectfully dissent. The question of whether a police officer can ask a motorist stopped for a traffic violation questions unrelated to the initial reason for the stop, aside from questions related to weapons, appears to be one of first impression in Indiana. The case law from other jurisdictions is mixed on this point, but I would side with those cases holding that police officers generally may ask such questions.

Joseph L. Florio and Connie Florio v. Ray Tilley and CalArk International, Inc. - "Here, the crux of the Florios’ argument is that, but for Tilley’s purportedly negligent speed, Tilley’s vehicle would have been at a different location when Oliver lost control of his vehicle, thereby avoiding the multiple-vehicle collision."

Jeannie Lewis-Levett v. Richard D. Day & Martha A. Day - "Although public policy favors home day care, we conclude that such policy is not violated by the enforcement of the restrictive covenants in this case. In other words, Indiana public policy favoring home day care does not supersede otherwise legitimate restrictive covenants prohibiting the use of lots in Golfview Estates for commercial purposes. Lewis-Levett operates a licensed day care home out of her residence, using sixty percent of her home for that purpose. She cares for twelve children, none of whom are related to her, and she concedes that there could be up to twelve vehicles entering and exiting Golf View Estates twice each day. On the facts presented in this case, we cannot say that the trial court erred when it granted summary judgment enjoining Lewis-Levett from operating a licensed day care home at her residence in Golf View Estates."

In Peggy Wiley v. Doris Mae McShane, et al. , an 8-page opinion, Judge Kirsch writes:

Peggy Wiley appeals the trial court’s order that required her to file a bond, pursuant to IC 29-1-7-19, after she filed a complaint challenging the validity of her deceased mother’s last will and testament. She raises five issues, but we find the following restated issue dispositive: whether the trial court abused its discretion when it set the will contest bond at $75,000. We reverse and remand.

Keith Bohlander v. Brenda Bohlander - "Keith Bohlander appeals the trial court’s order permitting his ex-wife, Brenda Bohlander, to claim a tax exemption for their daughter, J.B., for the 2006 tax year and requiring him to a pay for a portion of J.B.’s driver’s education classes and her church camp. We dismiss. * * * We address the dispositive issue, which we restate as whether Keith’s notice of appeal was timely filed."

In John Crist v. Creation of South-West Lake Maxinkuckee Conservancy District, et al., a 20-page opinion, Cheif Judge Baker writes:

Appellant-intervenor John Crist appeals the trial court’s order creating the South-West Lake Maxinkuckee Conservancy District (the Conservancy District). Specifically, Crist argues that (1) the trial court erred by withdrawing various signatures from the petition opposing the creation of the Conservancy District, (2) the Conservancy District is not contiguous as required by Indiana Code section 14-33-3-1, (3) the trial court erred by not specifically defining one of the seven districts within the Conservancy District, and (4) the trial court’s finding that the Conservancy District would promote public health is clearly erroneous. Although we conclude that the trial court erred by withdrawing ten signatures from the remonstrators’ petition, that petition still does not have the amount of signatures that are required to dismiss the petitioners’ petition. Finding no other error, we affirm the judgment of the trial court.

In Jerry & Linda Pardue v. Jerry & Linda Smith, et al., a 12-page opinion, Judge Bradford writes:

Appellants-Plaintiffs Jerry Pardue and Linda Pardue (collectively, “the Pardues”) appeal the trial court’s judgment, following a bench trial, in favor of Jerry Smith and Linda Smith (collectively, “the Smiths”), Stephen M. Carter and Carolyn Sue Carter (collectively, “the Carters”), and the Town of Plainfield (“Plainfield”) with regard to the alleged dedication of certain real property to Plainfield and an easement by necessity across the land.

The Pardues raise three issues on appeal, which we consolidate and restate as: (1) whether the trial court erred in determining that the disputed property had been dedicated to the public; and (2) whether the evidence was sufficient to support a claim for an implied easement by prior use. Plainfield, in turn, requests appellate attorneys’ fees pursuant to Indiana Appellate Rule 66(E).

Concluding that the trial court properly denied the Pardues’ requested relief, we affirm. Additionally, we decline Plainfield’s request for attorneys’ fees.

In Pinnacle Properties Development Group, LLC v. City of Jeffersonville, Indiana, a 5-page opinion, Judge May writes:

Pinnacle Properties Development Group, LLC (“Pinnacle”) appeals a ruling that the City of Jeffersonville (“City”) could transfer the delinquent sewer accounts of Pinnacle’s tenants to Pinnacle’s accounts. We reverse and remand. * * *

Ind. Code ch. 36-9-23 does not authorize a municipality to collect a delinquent sewer bill by any other means. See Ind. Code § 36-9-23-28 (“Any excess [balance] that remains due after application of the [deposit] forfeiture may be collected in the manner prescribed by section 31 or 32 of this chapter.”). Therefore, the trial court erred in holding the City could collect delinquent tenant bills by transferring the overdue balance from the tenant to the property owner without notice. See Ind. Code § 36-1-3-6(a) (when a statutory provision requires a power to be exercised in a specific manner, the municipality must exercise the power in that manner).

In James Butler v. Indiana Department of Insurance, et al., a 14-page opinion, Chief Judge Baker writes:

Appellant-plaintiff James Butler, as the personal representative of the Estate of Nondis Jane Butler (the Estate), appeals from the trial court’s judgment in favor of appellees-defendants Indiana Department of Insurance, as the administrator of the Patient Compensation Fund, and Clarian Health Partners, Inc. (Clarian) (collectively, the Fund). Specifically, the Estate argues that (1) the trial court erroneously admitted evidence regarding payments and benefits from Medicare and Medicaid in violation of the collateral source rule, and (2) the trial court erred by denying the Estate’s request to recover Nondis’s unpaid medical expenses pursuant to the Indiana Adult Wrongful Death Statute (AWDS).

We conclude that the trial court properly admitted evidence regarding the medical provider write-offs involving Medicare and Medicaid and any error resulting from the admission of the Medicare and Medicaid payments was harmless. We also conclude that, as a matter of law, the Estate was only entitled to recover the amount of actual pecuniary loss incurred as a result of Nondis’s medical expenses; therefore, the trial court properly denied its claim for additional compensation, and we affirm the judgment of the trial court.

In Robert D. Storey v. State of Indiana , a 15-page opinion, Judge Vaidik writes:

Following re-trial, Robert D. Storey (“Storey”) appeals his convictions and sentences for Possession of Methamphetamine in Excess of Three (3) Grams with Intent to Deliver and Manufacture of Methamphetamine in Excess of Three (3) Grams. Storey argues that his separate convictions for these two crimes violate Indiana’s Double Jeopardy Clause, that the trial court abused its discretion in its consideration of the aggravating and mitigating circumstances, and that his sentence is inappropriate in light of the nature of the offenses and his character. Finding that the State sufficiently distinguished the possession offense from the manufacturing offense and provided independent evidence to support both convictions, we conclude that Storey’s possession and manufacturing convictions do not violate Indiana’s Double Jeopardy Clause. As to his sentence, we find that the trial court did not abuse its discretion in its consideration of the aggravating and mitigating circumstances in arriving at a sentence and that his sentence is not inappropriate.

NFP civil opinions today (4):

Diane Harmon v. George Jackson (NFP)

John Goodman v. Angie Sheely (NFP)

Allen R. Lane v. McDowell Builders, Inc., and C & D Technologies, Inc. (NFP)

Monica Conn Baker v. Delbert L. Baker (NFP)

NFP criminal opinions today (12):

Mark Pedzinski v. State of Indiana (NFP)

Paul Gossage v. State of Indiana (NFP)

Kory McGlan v. State of Indiana (NFP)

Terry Coffin v. State of Indiana (NFP)

Willie Kemp Walker v. State of Indiana (NFP)

Scottie Edwards v. State of Indiana (NFP)

Shawn L. Kimmel v. State of Indiana (NFP)

Damone Ward v. State of Indiana (NFP)

Christopher Horice v. State of Indiana (NFP)

Rex Howard, Sr. v. State of Indiana (NFP)

Mary L. Burnett v. State of Indiana (NFP)

Brian Richardson v. State of Indiana (NFP)

Posted by Marcia Oddi on October 22, 2007 12:53 PM
Posted to Ind. App.Ct. Decisions

Courts - "For the elite of the Supreme Court Bar, this is the Gilded Age. Or call it the Age of the Guild"

The is the introduction to Tony Mauro's article today in Legal Times, headed "New Study Suggests Veteran Advocates Sway Supreme Court." Some quotes from the beginning of the lengthy article:

The Court's docket continues to shrink. Yet dramatic new research by Georgetown University Law Center professor Richard Lazarus shows that more and more of the Court's cases are brought and argued by the seasoned veterans who have honed Supreme Court practice into a fine, and exclusive, art form. Last term, fully 44 percent of the nongovernment petitions that were granted review by the Court were filed by such veteran advocates. In 1980, that number was less than 6 percent.

The justices and their law clerks, it seems clear, pay special attention to the briefs and arguments of these virtuosos of the bar. Chief Justice John Roberts Jr., after all, was once one of them, arguing 39 cases to the Court in his days as an appellate lawyer in the private and public sector. And Lazarus cites a 2004 survey published in the Journal of Law & Politics indicating that 88 percent of law clerks openly acknowledged giving extra consideration to briefs filed by what one called the "inner circle" of the Supreme Court Bar. The clerks, who play a crucial role in screening incoming cases for their justices, often then go to work for these same firms, garnering hiring bonuses that this year have reached $250,000.

But this is not just a "rich get richer" tale about lawyers. Lazarus, founder of the university's Supreme Court Institute, goes a step further to make the claim that the increasing dominance of the veteran Supreme Court Bar is beginning to have an impact on the Court's doctrine.

The study, set for publication soon in the Georgetown University Law Journal, draws a direct and controversial connection between the growth of the Supreme Court Bar and the Court's widely noted new pro-business tilt.

The WSJ Blog has picked up on this, in its usual entertaining fashion. Peter Lattman's post is headed "Are the Supremes Starstruck Like the Rest of Us?"

Posted by Marcia Oddi on October 22, 2007 11:20 AM
Posted to Courts in general

Environment - Canadian company mining Indiana aquifer

The Diane Rehm Show on NPR today focuses on:

U.S. Weather Patterns and Drought: Severe drought conditions in several southern states and in large areas of the west are prompting new concerns about possible water shortages. An update U.S. weather patterns and water management policies.

The report goes far beyond the bare description. There is much discussion on how water supplies cannot be taken granted anymore anywhere in the country. There is discussion about how Canada does not allow its water to be shipped to the U.S.

While listening to the show, which is available here, I was reminded of this story in a number of papers last week, including the Rensselaer Republican:

KENTLAND - Canadian water bottler Ice River Springs announced it will locate a new water bottling operation in Kentland - creating up to 100 new jobs.

The Ontario-based bottler will invest more than $20 million to build and equip a 273,000 square-foot production and distribution center in the town’s industrial park where it will manufacture and fill plastic bottles with water from a nearby spring. * * *

“The Town of Kentland is very pleased that Ice River Springs made Kentland Indiana their choice in site location for their new water bottling facility,” said Dave Smart, Kentland Town Council President. “We believe they will be a great Corporate Citizen and we are excited at the opportunity to be working with them. The team efforts of our board, the Newton County Economic Development Commission, Kentland Bank and the State of Indiana proved to be successful in winning this economic development project. This is a wonderful example of what can happen when business, state, county and local government can work together.”

The Indiana Economic Development Corporation offered Ice River Springs up to $410,000 in performance-based tax credits and up to $36,000 in training grants based on the company’s job creation plans. The state will also provide the Town of Kentland with a grant of up to $47,000 to assist in off-site infrastructure improvements needed for the project. The Town of Kentland will provide Ice River Springs with property tax abatement. The Newton County Economic Development Commission assisted in the effort.

Here is the Oct. 16th Indianapolis Star report, which begins:

Kentland doesn't have an Ice River, but it's near a natural spring that will help produce jobs in northwest Indiana.

The Indiana Economic Development Corp. announced today that Canadian water bottler Ice River Springs will build a 273,000 square-foot production and distribution center in the town’s industrial park.

The $20 million investment in Newton County will create up to 100 new jobs. It opens in 2008.

No talk here of water management policies. The day may soon be past, and perhaps it should be already, when a community will so eagerly, and with the help of the state administration, sell off the rights to draw down its aquifer for the promise of 100 jobs.

It would be interesting to learn the details of this "deal."

Posted by Marcia Oddi on October 22, 2007 10:50 AM
Posted to Environment | Indiana economic development

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Wednesday, Oct. 24th:

9:00 AM - Walden v. State - Following a jury trial in the Delaware Circuit Court, Walden was convicted of causing death while operating a motor vehicle under the influence of a controlled substance, and was found to be an habitual offender. Walden appealed, arguing in part that the trial court erred in refusing Walden’s tendered jury instruction, which stated: “Even where the jury finds the facts of the prerequisite prior felony convictions to be uncontroverted, the jury still has the unquestioned right to refuse to find the Defendant to be a habitual offender at law.” The Court of
Appeals affirmed the conviction and sentence in an unpublished memorandum decision, Walden v. State, No. 18A02-0605-CR-420, slip op. (Ind. Ct. App. May 10, 2007). Walden has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorneys: For Appellant: Kelly N. Bryan. For Appellee: Gary Damon Secrest

9:45 AM - Hartman v. Keri - Hartman and Swinehart, students at Indiana University-Purdue University at Fort Wayne, filed a complaint against a professor, Dr. Keri, pursuant to the University's procedure for complaints of harassment. Thereafter, Keri filed a complaint in the Allen Superior Court against Hartman and Swinehart. The trial court denied Hartman and Swinehart's motion for summary judgment on Keri's claim for defamation. A majority of the Court of Appeals reversed, holding the University's complaint procedure was a quasi-judicial proceeding and Hartman and Swinehart's complaint absolutely immune from a defamation claim. Hartman v. Keri, 858 N.E.2d 1017 (Ind. Ct. App. Dec. 27, 2006), reh'g denied, vacated. [See ILB entry here.] The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorney for Hartman and Swinehart: Karen R. Orr, Lafayette, IN Indianapolis, IN. Attorney for Keri: Swaray E. Contech, Indianapolis, IN. Attorneys for Amici Curiae Boards of Trustees Of Ball State University, Indiana State University, Indiana University and Purdue University: Scott E. Shockley, James R. Williams, Muncie, IN.

See also this ILB entry from June 13th headed: "Supreme Court grants transfer in absolute privilege case."

Webcasts will be available here.

This week's oral arguments before the Court of Appeals that will be webcast:

None scheduled.

This week's oral arguments before the Court of Appeals that will NOT be webcast:

This Monday, Oct. 22nd:

1:00 PM - State of Indiana v. Adam L. Manuwal - Whether the trial court erred when it ruled that because Defendant was driving the off road vehicle on his own property he could not be charged with operating a vehicle while intoxicated. The Scheduled Panel Members are: Chief Judge Baker, Judges Bailey and Vaidik.

Posted by Marcia Oddi on October 22, 2007 07:57 AM
Posted to Indiana Decisions | Upcoming Oral Arguments

Sunday, October 21, 2007

Law - Controversy over voting machines in Pennsylvania cites 2003 Indiana election

The Pittsburgh Tribune-Review today has a story about problems with voting machines in some western Pennsylvania counties. A quote:

"I don't see how they can say the machines are reliable when they have no way of showing whether the machines are reliable," said Chester County attorney Marian K. Schneider, who took state officials to court last year to ban use of iVotronics and other machines.

The case is before the state Supreme Court.

"Touch-screen machines are bad for voting," said one of the plaintiffs, Danny Sleator, 53, of Squirrel Hill, a Carnegie Mellon University computer science professor. "They're too vulnerable to both machine errors (and) calibration errors ... as well as nefarious manipulation of the vote."

"This is an essential issue for maintaining our democracy," said Jeanne Zang, 58, of Sewickley, another plaintiff in the lawsuit. "We all need to be concerned that our votes are being counted properly."

Electronic machines have caused controversy ever since Congress mandated the transition to electronic voting after the 2000 election debacle in Florida.

Black Box Voting, a nonprofit elections watchdog, reports e-voting glitches -- such as 19,000 voters in one Indiana county somehow casting 144,000 votes in 2003, and the disappearance of 70 ballot "memory cards" in Ohio last year.

Really?

Posted by Marcia Oddi on October 21, 2007 04:02 PM
Posted to General Law Related

Environment - More on Indiana and Lake Michigan pollution

Gitte Laasby of the Gary Post-Tribune has a story today headed "EPA still unsure on lake polluters." It begins:

The U.S. Environmental Protection Agency still has not determined how much pollution goes into Lake Michigan, despite a request from U.S. Sen. Richard Durbin, D-Ill.

Durbin re-quested the information after public outcry erupted over BP Whiting's wastewater permit this summer. He wanted to find out how much of various pollutants are discharged, which facilities discharge the most, and which pollutants pose the biggest threats to the environment and human health.

The intent was to determine what can be done to improve the water quality in Lake Michigan and what potential legislative steps need to be taken to reduce pollution.

In a 43-page response to Durbin's questions released to the Post-Tribune, the EPA states that because of limitations with the database that contains monitoring reports from the major facilities, the agency has not tried to calculate how much of each pollutant is discharged into Lake Michigan overall.

Here is the part of the story that the ILB found fascinating:

There are 565 wastewater permits in effect for facilities within the Lake Michigan basin. Of these, 113 are in Indiana, 251 are in Michigan, 193 in Wisconsin and eight in Illinois. In addition, states also issue general permits that cover a total of 4,238 facilities, but not all of them are located within the Lake Michigan basin.

Compare these numbers against the Lake Michigan shoreline of each state!

Posted by Marcia Oddi on October 21, 2007 03:43 PM
Posted to Environment

Ind. Law - "Blogs fair game for school code of conduct"

Updating this ILB entry from Oct. 9th, which quoted from a Lafayette Journal & Courier story by Meranda Watling headlined "Student says Facebook posts led to suspension", today Ms. Watling writes under the headline "Blogs fair game for school code of conduct." Some quotes:

Though West Lafayette school administrators won't talk about the specifics of that case, a review of local school codes of conduct and discussion with area principals show some general rules on Internet posting do prevail.

Basically, if student expression -- whether at school or posted from home on popular social networking sites like Facebook or MySpace -- disrupts school, it could get the student suspended. If it goes as far as harassment, it could get the kid expelled and be handed over to police. If it's harmless gossip or blowing off steam? Schools generally have other things to worry about.

"Unless it's a threat, if something is brought to our attention, we probably will just notify the parents," said Glade Montgomery, Jefferson High School principal. "If someone's calling me a name, I don't worry about that ... unless it becomes a disruption to the educational environment."

That's the same approach John Beeker, principal of McCutcheon High School, takes.

"We don't sit around and read Facebook all day," Beeker said. "... But if it lands on our desk, we're going to react to it.

"We feel an obligation to students to let them know this could prevent you from getting into different (activities) at McCutcheon. It's just not the right thing to do."

Beyond speech, area schools prohibit cameras outside classwork. And some schools dish punishments for postings showing inappropriate behaviors by student athletes in their uniforms or those involved in extracurricular activities.

West Lafayette freshman Michael Garland didn't think about the rules, which he said are largely unenforced, when he captured a fight in a school classroom on his camera and later posted it online.

In return for that action, which sparked the discussion where Casseday's post [ILB - the subject of the earlier story] was made, Garland said he was given an expulsion. He has been allowed to return to school on probation, but not without a lesson.

"It was the first time I've done that -- and last," Garland said.

Casseday's mother, Sophia Wilcox, said she was disappointed in the school's reaction and disagrees with students choosing to censor themselves. She said the school missed out on a teachable moment.

"The idea that you're not allowed to express your opinion in opposition, this is a serious problem," Wilcox said. "... We've taught them how to do this. Now we're saying you're not allowed?"

See also this Sept. 2nd ILB entry, quoting from a story by Sue Loughlin of the Terre Haute Tribune-Star on "a whole new territory" - the impact of MySpace and Facebook on students.

Posted by Marcia Oddi on October 21, 2007 03:24 PM
Posted to Indiana Law

Ind. Law - Is the City of South Bend's Strip Bar Ordinance Enforceable?

An interesting article today in the South Bend Tribune, written by Jamie Loo, begins:

SOUTH BEND -- Is the city's adult business ordinance enforceable?

Citizens for Community Values Political Action Committee has argued repeatedly that the city isn't enforcing the entire ordinance passed by the Common Council in 2000.

But city attorney Chuck Leone says that because a judge struck down parts of the ordinance in 2001, the city can only enforce the parts ruled constitutional.

In a case in 2001:

Judge Michael Scopelitis issued a 77-page partial judgment on the case, finding that some parts of it pre-empted by state liquor laws are unconstitutional.

The most controversial finding was that the 10 p.m. closing time can't be applied to establishments with a liquor license, because they are pre-empted by state liquor laws. It can only be enforced for businesses without liquor licenses.

The provision that calls for a $2,500 fine for physical contact between entertainers and customers was also struck down. Scopelitis wrote in his ruling that the way it was worded made it a violation "for patrons and entertainers to engage in a simple handshake or inadvertent or accidental touching even while both are fully clothed."

Scopelitis held more hearings a few months later, beginning in February 2002 through October 2002, to clear up the remaining issues in the case, such as whether there were enough "negative secondary effects" from the strip bars to enact the ordinance in the first place, the licensing fee and whether adult business owners were harmed by the law and entitled to damages.

During that time, Indiana attorney general Steve Carter filed a "friend of the court" brief supporting South Bend's case, including the 10 p.m. closing time. Carter felt that state liquor laws didn't pre-empt the closing time.

At the October hearing, the judge told The Tribune he expected to finish ruling on the case sometime after Jan. 27, 2003.

But before Scopelitis could rule, the Colleys and the city reached a settlement in November 2005, which dismissed the case entirely. The city bought two of the Colleys' former strip bars, and as part of the agreement, they dropped their lawsuit against the city. * * *

In a press release issued last month, CCV specifically insisted the 10 p.m. closing time should be enforced.

"We're pointing to the closing time because that's one of the most glaring things that isn't being enforced," Mangan said.

The fact that there was a lawsuit is "irrelevant" at this point because it doesn't exist anymore, he said. Carter has weighed in on the issue supporting the ordinance, he said, and the city should enforce it. Mangan said the lack of enforcement appears to be a "political problem" and that a change in city administration would mean the ordinance would be enforced properly.

"It's time for the mayor and Chuck Leone to be honest about the enforcement issues," he said. "The attorney general has told them and they know this: that the South Bend adult business ordinance isn't pre-empted by state law."

But Staci Schneider, spokeswoman for the Indiana attorney general's office, said Carter's brief in the adult business ordinance case is only an opinion, not a ruling.

Whenever a constitutional issue comes up in a court case, the attorney general's office has to be notified so it has the opportunity to intervene. Schneider said the attorney general doesn't have the authority of a judge, and Carter's opinion doesn't supersede a court order.

"The judge's ruling is the judge's ruling," Schneider said.

Leone said this is an unusual situation because the case never received a final judgment and was dismissed. He said what was ruled on sent a "clear message" to the city that parts of the ordinance are not enforceable and wouldn't stand a challenge in court.

"Our expectation is if we litigate the same issues, we would get the same results," he said.

Because of that, Leone said the city is only following the guidelines that are still enforceable. This includes general licensing provisions, age restrictions on patrons and restrictions on viewing booths.

Leone said enforcement of ordinances is generally complaint-driven, and as a "general rule" the city doesn't go out looking for violations.

In the past few years, Leone said the city hasn't received specific complaints at adult businesses to cause the city to respond. He said that if the city started hearing many complaints about a specific establishment, the city would determine whether city codes were violated.

It's a matter of appropriately allocating resources, Leone said. For example, Leone said the city spends a fair amount of time enforcing other quality-of-life ordinances such as those involving noise, drug houses and "disorderly" houses.

"That's where we hear from the residents of South Bend that there are issues," he said. "So that's where we focus our resources and try to be responsive in that way."

The wording of the entire ordinance is still in the city code and would take amendments enacted by the Common Council to officially remove them.

Posted by Marcia Oddi on October 21, 2007 03:17 PM
Posted to Indiana Law

Saturday, October 20, 2007

Courts - "The Indianapolis Museum of Art wanted its Caravaggio back"

So begins this story today in the NY Times, reported by Anemona Hartocollis, about the problems resulting from the closing of a gallery:

They were among dozens of claimants, mainly lawyers, in a Manhattan courtroom yesterday to pick at the chaos that once was the glorious Salander-O’Reilly Galleries, situated in a town house off Madison Avenue.

The gallery, on East 71st Street, closed its doors on Tuesday as people waited on the sidewalk for a major show, which included the Caravaggio, to open, according to accounts given yesterday in court.

The gallery and its principal dealer, Lawrence Salander, have been accused in a string of lawsuits of defrauding customers and business partners, in part by selling the same paintings to many different people.

In the hearing yesterday, one of the largest claimants, Renaissance Art Investors, wanted to make sure that the gallery remained closed and barred from selling any of its artworks. And after listening to the claims of Renaissance Art Investors and others, Justice Richard B. Lowe III of State Supreme Court essentially agreed.

“The directive of this court is that the gallery will remain secured until further notice,” the judge said. He also ordered an inventory of the gallery’s holdings. * * *

Looking out on a gallery filled with dozens of grim-faced lawyers, Justice Lowe invited them to stand up one by one and state their claims, and at least a dozen did so. * * *

Deborah Mayer, the lawyer for the Indianapolis Museum, said the Caravaggio, “Sleeping Cupid,” had been on loan to the gallery. The museum “is the custodian of the Caravaggio, and is very anxious to get the painting back today, with your honor’s permission,” Ms. Mayer said, adding that the painting was “priceless.”

Her request drew a chuckle from the judge, and loud guffaws from some of the other lawyers.

The judge expressed sympathy for the museum’s plight, but decided that it would not be prudent to return any paintings without further investigation.

Here is the IMA's web page on the Sleeping Cupid.

Posted by Marcia Oddi on October 20, 2007 11:22 AM
Posted to Courts in general

Environment - Indiana listed as next to last "greenest" state by Forbes

Here, from the current issue of Forbes, is its list of America's Greenest States. Scroll down to 49th to find Indiana.

46-50: Mississippi, Louisiana, Alabama, Indiana, West Virginia.

From the main article in Forbes:

So who's at the bottom? Mississippi, Louisiana, Alabama, Indiana and, at No. 50, West Virginia. All suffer from a mix of toxic waste, lots of pollution and consumption and no clear plans to do anything about it. Expect them to remain that way.

The Gary Post-Tribune features the Forbes article today in this story by Gitte Laasby.

Posted by Marcia Oddi on October 20, 2007 10:35 AM
Posted to Environment