Thursday, December 06, 2007
Ind. Decisions - Court grants transfer in two cases
The formal transfer list will follow tomorrow, but the ILB has received notice of two cases having been granted transfer this week:
Brenwick Associates, LLC. v. Boone County Redevelopment Comm'n. - According to a story in the Indianapolis Star, the COA opinion "resolves a land dispute betweeen the Whitestown Town Council and the Boone County Commissioners over a prime corridor in the county." See the ILB entry on the July 20th COA opinion here.
Jeffrey Pearson v. State - This was a NFP July 27th COA opinion where the issue was "whether the trial court erred in ordering restitution without determining his ability to pay." The COA reversed and remanded.
Posted by Marcia Oddi on December 6, 2007 04:34 PM
Posted to Indiana Transfer Lists
Courts - State trial court information online
The WSJ Law Blog has just posted an interesting entry about accessing a NY trial court complaint online:
Here we were thinking how valiant we were for trudging over to the New York state courthouse to find the answer to the lawyer bride’s complaint against her florist. Valiant sure, but stupid too! Wrote one reader called “Check online, Law Blog!”:And of course this is confusing if you don't know, or it has slipped your mind, that "Supreme Courts" in NY are trial courts.“No idea why the Law Blog walked across Lower Manhattan to 60 Centre when the answer is available online in its entirety.
Silly Law Blog! We had no idea that you can access the docket for New York State Supreme Court cases if you have the index number.
Most state's appellate court opinions are now online. But the briefs and other appellate documents mostly are not. And at the county or trial court level, online availability of trial court opinions, especially without cost, is very rare, in the ILB's experience. The public online availability of the complaint and other filings is virtually non-existent.
But for New York! Here is the NY webpage, which provides:
WebCivil provides online access to information about cases in Civil Supreme Court in all 62 counties of New York State. You may search for cases by Index Number or the name of the Plaintiff or Defendant, look up cases by Attorney/Firm name, and view Calendars for each court. With our eTrack case tracking service you can receive email updates and appearance reminders for Civil Supreme Court cases.The WSJ Law Blog provides the link to the answer filed in the wedding flower case.
Posted by Marcia Oddi on December 6, 2007 03:52 PM
Posted to Courts in general
Environment - "Coalition sues Land Office over wind farms"; energy alternatives, each with proponents and opponents
The Austin American-Statesman had a story Wed. headed: "Coalition sues Land Office over wind farms: Groups, including King Ranch, want to require extensive environmental review of wind projects." The NY Times had a story by Felicity Barringer on June 6, 2006 headed "Debate Over Wind Power Creates Environmental Rift." A quote: "Wind farms on the empty prairies of North Dakota? Fine. But not, Mr. Boone insists, in the mountainous terrain of southwestern Pennsylvania, western Maryland or West Virginia, areas where 15 new projects have been proposed." In 2003 the Chesapeake Bay Journal had a story headed "Wind turbine proposals for Atlantic Coast face challenges".
"Committed to Coal, and in a Hurry, Too" was the headline to this story in the Nov. 7th, 2006 NY Times. "Midwest Has 'Coal Rush,' Seeing No Alternative" was the headline to a story March 10th, 2007 on the front-page of the Washington Post.
"Indiana Utility Regulatory Commission Gives Duke Energy Indiana Approval to Build Integrated Gasification Combined Cycle Plant" was the headline to this ILB entry from Nov. 20th, 2007.
"Some rethinking nuke opposition" was the headline to this March 22nd, 2007 story by William M. Welch USA Today. Some quotes:
With global warming a rising concern, some environmentalists are rethinking nuclear power because it emits zero greenhouse gases."You can't just write nuclear off," says Judi Greenwald, director of innovative solutions with the Pew Center on Global Climate Change, an environmental research and advocacy group. "I think everybody feels you have to at least look again" at nuclear power.
That attitude is markedly different from the revulsion that environmental groups have directed toward nukes for most of the past three decades.
That opposition is one of a number of factors that nuclear advocates say put in place a virtual ban on new nuclear plants since the late 1970s. * * *
Some environmentalists aren't buying. "We remain steadfastly opposed to nuclear power," Sierra Club spokesman Josh Dorner said. "We're not willing to believe they are as safe as the industry is willing to portray them."
The Sierra Club says it has not wavered in its stand against nuclear power. Greenpeace USA also says it finds nuclear power unacceptable.
Both organizations cite the unresolved debate over long-term storage of radioactive wastes and economic viability because of huge construction costs. They also worry about the possibility of spent fuel getting into the wrong hands and being used for weapons.
"I think there are a lot better carbon-free alternatives for producing electricity," says Christopher Flavin, president of Worldwatch Institute, an environmental research group. * * *
Nuclear already plays a big role in the USA. There are 104 nuclear reactors operating at 66 plants in the country, producing one-fifth of the nation's electricity, according to the Department of Energy. The highest user is Vermont, which gets 72.5% of its electricity from nuclear.
Coal provides far more electricity in the USA and creates greenhouse gases when burned.
Patrick Moore — a founder of Greenpeace who is now co-chairman of the industry-funded Clean and Safe Energy Coalition, which advocates for nuclear power — says coal-fired power plants pose a greater threat to the environment. He says environmental groups recognize that, even those not yet officially embracing nuclear power.
Posted by Marcia Oddi on December 6, 2007 02:48 PM
Posted to Environment
Courts - "Time for Cameras: Those who are interested shouldn't have to line up overnight to watch Supreme Court debates"
The Washington Post published this editorial this morning:<
SOME 70 members of the public queued up in frigid conditions early yesterday -- some camping out overnight -- for a chance to witness the historic Supreme Court argument on the rights of detainees held at Guantanamo Bay. Thanks to more progressive thinking of late from the justices, those who couldn't squeeze into the courtroom could listen to the proceedings on C-SPAN or read the transcript released that afternoon. But no one outside the courtroom could watch, because the justices prohibit television cameras in the court.This is a travesty, especially in a case of such importance. The justices have argued that cameras in the court could lead to grandstanding by lawyers and increase the threat to their own privacy and possibly their security by making them more recognizable. Justice Anthony M. Kennedy, in testimony before Congress last year, obliquely suggested that separation-of-powers concerns could be triggered if Congress tried to require cameras in the court.
These arguments ignore the fact that the court is a public institution, funded with taxpayer money and charged with dispensing legal judgments that can affect everyone. Televising Supreme Court oral arguments could help inform the public how the court functions and might help dispel dangerous and incorrect assumptions about the court. And the justices have already proved that they're perfectly capable of reining in legal histrionics. There's an argument to be made that having cameras in the court makes more sense than allowing an audience in the courtroom; cameras, after all, can't engage in outbursts, but they would allow millions of people, rather than mere dozens, to observe the proceedings.
The Senate Judiciary Committee today once again takes up legislation to allow television cameras in oral arguments at the Supreme Court. The legislation, sponsored in the Senate by Arlen Specter (R-Pa.), calls for the justices to permit coverage of "all open sessions of the Court unless the Court decides, by a vote of the majority of the justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of one or more of the parties." This would provide the justices flexibility of action while giving citizens a glimpse into a marbled world most of them will never be able to experience firsthand.
Posted by Marcia Oddi on December 6, 2007 02:45 PM
Posted to Courts in general
Ind. Decisions - Marion County juvenile court orders release of the juvenile court file and the much larger DCS case file in TaJanay Bailey case
Jon Murray of the Indianapolis Star reports today:
About 1,500 pages from the state Department of Child Services case file on TaJanay Bailey are expected to be released this morning by Marion County juvenile court.Earlier this year, efforts by the Indianapolis Star to access adoption records were unsuccessful, in a case where, according to a Star story, "a Hamilton County judge decided in closed court to allow an unmarried New Jersey man to adopt twin girls over the objection of child welfare officials." Here is a list of ILB entries in the adoption records case.
The records could shed more light on the decision to send TaJanay home for a 30-day trial visit with her mother, Charity Bailey, and Bailey's boyfriend, Lawrence Green, both 20. Both face murder and neglect charges in TaJanay's Nov. 27 death.On Friday, Judge Marilyn Moores ordered the release of both the juvenile court file and the much larger DCS case file.
The state agency's lawyers argued in favor of the release. But Charity Bailey's attorneys vigorously opposed it, and this week they have filed motions with Moores and the Indiana Court of Appeals seeking to reverse the decision or halt the remaining documents' release temporarily.
The Indianapolis Star is among the media outlets seeking the records.
The court's file was given to the media immediately Friday, but the judge delayed the DCS case file's release so she could redact portions to comply with state and federal privacy laws.
On Monday, the appeals court denied Bailey's request for an emergency stay. Public defenders representing Bailey have asked the court to consider an expedited appeal of Moores' original ruling.
Separately, Moores already denied their request for a stay from the bench Friday. But the attorneys drafted another request Tuesday to reconsider her order and again asked for a stay.The judge had not ruled Wednesday.
Bailey's attorneys argue that making the records public would violate her rights to privacy and due process in her criminal case. Some documents include information protected by law from release, the filings say, and any release to the media can't be reversed.
A new hearing has been set for Dec. 18 in juvenile court to consider requests to open documents from other child-welfare cases involving TaJanay and her 6-month-old brother, as well as Charity Bailey's juvenile record.
Posted by Marcia Oddi on December 6, 2007 01:20 PM
Posted to Ind. Trial Ct. Decisions
Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)
For publication opinions today (2):
Matter of the Paternity of J.R.W.; Kevin L. Jemerson & Mamie Darlene Jemerson v. Jack Watterson & Nathanial Green - In this case, an 8-page opinion by Judge Darden, the issue is "Whether the Jemersons had standing as next friends to bring a paternity action on behalf of their maternal nephew, J.W., as his next friends when a panel of this court had previously held that their guardianship rights with respect to J.W. should be dissolved."
Tammy McKay (“Tammy”) and Jack began a romantic relationship when Tammy was already pregnant with another man’s child. Tammy gave birth to J.W. on December 25, 1995. Two days later, Jack executed a paternity affidavit, wherein he averred that he was J.W.’s father. Tammy and Jack married on April 28, 1996. Their union produced a daughter, B.W. The marriage ended in divorce on October 28, 2002, and the dissolution decree identified J.W. and B.W. as children of the marriage. The matter of J.W.’s paternity was not litigated during the divorce proceedings. The divorce court awarded Tammy custody of J.W. and B.W., granted Jack visitation rights, and ordered him to pay child support.In Terrance Hood v. State of Indiana , a 10-page opinion, Judge Bailey writes:Subsequently, Tammy and Jack each remarried. In the fall of 2005, Tammy was diagnosed with terminal cancer. Tammy wrote a will in which she expressed her “strongest desire that no other relative of [her] children, including their non-custodial parent and natural father, be appointed guardian of [her] said children.” See Watterson v. Jemerson, No. 39A01-0609-CV-403, (Ind. Ct. App. April 16, 2007). She requested that her sister, Mamie Darlene Jemerson, be the guardian of J.W. and B.W. Soon thereafter, Mamie and Kevin Jemerson filed a petition for guardianship and a motion to appoint a guardian ad litem (“GAL”) for the children. The trial court granted the Jemersons’ motion to appoint a GAL. On March 22, 2006, the GAL recommended that the Jemersons be named guardians of J.W. and B.W. Tammy died four days later.
On April 6, 2006, the Jemersons filed an amended petition for guardianship. On the following day, the trial court granted temporary guardianship to the Jemersons, ordered visitation for Jack, and took the matter of permanent guardianship under advisement. On June 2, 2006, the trial court awarded the Jemersons permanent guardianship of B.W. and J.W., and imposed a visitation and child support order for Jack. On June 30, 2006, Jack filed a motion to correct error, challenging the trial court’s grant of guardianship to the Jemersons. The trial court conducted a hearing on Jack’s motion on July 31, 2006. On August 21, 2006, the trial court entered an order stating its reasons for awarding guardianship rights to the Jemersons and denied Jack’s motion. Jack appealed to this court. * * *
Because both Jack and Green – as the legal father and biological father, respectively – bear the duty of acting on behalf of J.W., no proper basis exists upon which the Jemersons may assert standing as J.W.’s next friends. The trial court properly granted Jack’s motion to dismiss for lack of standing because the Jemersons cannot be granted relief under any set of facts.
Hood’s conviction for Voluntary Manslaughter must be reversed because evidence corroborative of his self-defense claim was erroneously excluded. However, there is sufficient evidence to permit his retrial on that charge. Because of the necessity of the reversal and retrial, we do not reach Hood’s claim of sentencing error.NFP civil opinions today (0):
NFP criminal opinions today (5):
Vondregus Bailey v. State of Indiana (NFP)
James Drain v. State of Indiana (NFP)
Kevin Boese v. State of Indiana (NFP)
Richard Clark v. State of Indiana (NFP)
David Allen v. State of Indiana (NFP)
Posted by Marcia Oddi on December 6, 2007 12:52 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Announcement from Clerk of Courts re filing in the Statehouse
Kevin Smith, Clerk of Courts, announced Dec. 5th that:
During the period of construction that is occurring at the east entrance to the State House (which is expected to last through the end of December at least), rotunda filing will be available "the old way," meaning that papers may be left with a State Police officer stationed at a desk just inside the north entrance to the State House. The north entrance will remain "swipe card access only"; therefore, those wishing to "rotunda file" between 5 p.m. and midnight will need to knock on the glass door at the north entrance and the State Police officer stationed there will have to let the person in. If the officer is temporarily absent, then the person wishing to rotunda file will have to wait until the officer returns.The forms we currently use at the rotunda filing drop box will be placed at the guard desk for the person tendering the document to fill out once he/she is allowed inside. Instead of using a time clock to place a time/date stamp on the form, however, the State Police officer will place the time and date on the form after the person fills it out. The person tendering the document for filing will still need to attach the top copy of the form to the inside cover of the original document being filed, but instead of then dropping the bundle into the drop box, he/she will leave it with the officer.
Posted by Marcia Oddi on December 6, 2007 12:47 PM
Posted to Indiana Courts
Ind. Courts - Supreme Court to host summit on children
A release today from the Indiana Courts begins:
INDIANAPOLIS – Michigan Supreme Court Justice Maura Corrigan, a noted national expert on child protection, foster care, and adoption, will be the keynote speaker at a special Indiana Summit on Children to be held Friday, December 14, at the Indianapolis Convention Center. More than 300 court officials, judges, legislators, mental health professionals, foster parents, educators, service providers, and state caseworkers serving abused and neglected children are expected to attend the Summit which is titled “Partners Planning for Permanency.”
Posted by Marcia Oddi on December 6, 2007 12:44 PM
Posted to Indiana Courts
Environment - "Former IU SPEA dean completes IDEM permit process review"
On Aug. 13th, the ILB posted en entry titeld "Environment - Governor Daniels asks former dean of SPEA to conduct 6 weeks study of Indiana's IDEM's BP permit." On Nov. 7th, the ILB posted an entry titled "Environment - Governor's review of Great Lakes water-quality laws drags on." Today, Dec. 6th, the Governor's Office has issued a press release headed "Former IU SPEA dean completes IDEM permit process review."
The ILB has not yet had a chance to review the 38-page report and cover letter in detail, but the press release puts a very positive spin on it.
[More] Patrick Guianane and Christine Kraly of the NWI Times have reviewed the report and written this story.
Posted by Marcia Oddi on December 6, 2007 11:51 AM
Posted to Environment
Wednesday, December 05, 2007
Law - "Other countries have done away with the felony murder rule"
I remember how amazed many of us in Dean Cleon Faust's first-year Wrongs class in the 60s were to learn about the felony murder rule. This was, of course, before shows like Law and Order.
Yesterday Adam Liptak of the NY Times had a lengthy front-page story about the "American legal doctrine [that] makes accomplices as liable as the killer for murders committed during felonies." Other counies have done away with the felony murder rule:
Most scholars trace the doctrine, which is an aspect of the felony murder rule, to English common law, but Parliament abolished it in 1957. The felony murder rule, which has many variations, generally broadens murder liability for participants in violent felonies in two ways. An unintended killing during a felony is considered murder under the rule. So is ... a killing by an accomplice.A side-bar notes that this article, headed "Amercian Exception: Murder Once Removed," is "the second in an occasional series of articles that will examine commonplace aspects of the American justice system that are actually unique in the world." An earlier article, published Oct. 17, was titled "Lifers as Teenagers, Now Seeking Second Chance," and reported that "the U.S. stands alone in the world in convicting adolescents as adults and sentencing them to life."India and other common law countries have followed England in abolishing the doctrine. In 1990, the Canadian Supreme Court did away with felony murder liability for accomplices, saying it violated “the principle that punishment must be proportionate to the moral blameworthiness of the offender.”
Countries outside the common law tradition agree. “The view in Europe,” said James Q. Whitman, a professor of comparative law at Yale, “is that we hold people responsible for their own acts and not the acts of others.”
But prosecutors and victims’ rights groups in the United States say that punishing accomplices as though they had been the actual killers is perfectly appropriate.
Posted by Marcia Oddi on December 5, 2007 06:37 PM
Posted to General Law Related
Ind. Decisions - Upcoming oral arguments tomorrow include: Attractive nuisance case involving trampoline; statute of limitations for bringing UST claims
See Monday's weekly survey of upcoming oral arguments here.
Posted by Marcia Oddi on December 5, 2007 02:30 PM
Posted to Upcoming Oral Arguments
Ind. Decisions - Court of Appeals issues 0 today (and 12 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
Matter of the Guardianship of B.D. and L.D., Michelle Doll v. Kevin Doll and Pamela Doll (NFP) - "Appellant-Respondent Michelle Doll (“Mother”) appeals the trial court’s order naming Appellees-Petitioners Kevin and Pamela Doll (“Maternal Grandparents”) permanent co-guardians of minor children B.D. and L.D. (the “children”). On appeal, Mother claims that the evidence was insufficient to support the court’s factual findings and that the court’s legal conclusions were not adequately supported by the facts. We affirm. * * * Although the trial court appropriately refrained from labeling Mother as an “unfit” parent, there is clear and convincing evidence that the children’s best interests are substantially served by placement with their Maternal Grandparents."
Matter of the Commitment of N.B. v. State of Indiana (NFP) - "N.B. appeals his involuntary commitment to Columbus Regional Hospital Mental Health Center (“Columbus Regional”). Specifically, he contends that the evidence is insufficient to support the trial court’s findings that he is dangerous and gravely disabled. Because there is clear and convincing evidence that N.B. is dangerous, we affirm the trial court’s commitment order."
NFP criminal opinions today (10):
James L. Richardson v. State of Indiana (NFP)
Michael A. Love, Jr. v. State of Indiana (NFP)
Dexter Johnson v. State of Indiana (NFP)
Robert Jackey v. State of Indiana (NFP)
Lavar Taylor v. State of Indiana (NFP)
James M. Reynolds v. State of Indiana (NFP)
Brian B. Roberts v. State of Indiana (NFP)
Norman Russell Baker, Jr. v. State of Indiana (NFP)
David Allen v. State of Indiana (NFP)
Ronnie C. Williams v. State of Indiana (NFP)
Posted by Marcia Oddi on December 5, 2007 02:25 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Supreme Court issues one today
In Steven Hollin v. State of Indiana, a 7-page opinion, Justice Rucker writes:
The defendant was convicted of conspiracy to commit burglary, a Class B felony, and found to be a habitual offender. The trial court sentenced him to twenty years for the conspiracy offense, enhanced by twenty years for the habitual offender adjudication. Under our constitutional authority we revise the sentence to a total aggregate term of twenty years. * * *Conclusion. We remand this cause to the trial court with instructions to enter a sentence of ten years for conspiracy to commit burglary as a Class B felony, enhanced by ten years for the habitual offender adjudication.
Shepard, C.J., and Sullivan and Boehm, JJ., concur.
Dickson, J., concurs and dissents with separate opinion. [which begins] I dissent as to the revision of the sentence selected by the trial court. As to the remainder of the Court's opinion, I concur.
Posted by Marcia Oddi on December 5, 2007 02:18 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - 7th Circuit issues three Indiana opinions today
In U.S. v. Amaral-Estrada (SD Ind., Judge Barker), a 16-page opinion, Judge Bauer concludes:
For the reasons stated above, the district court did not err in denying both Amaral-Estrada’s and Lira-Esquivel’s Motions to Suppress Evidence. The district court’s orders are AFFIRMED.In White v. Gerardot (ND Ind., Magistrate Judge Cosbey), a 16-page opinion, Judge Ripple writes:
Arlinthia White, individually and as personal representative of the Estate of Derrick Ford, filed this action under 42 U.S.C. § 1983. Ms. White alleges that Mark Gerardot, a Fort Wayne, Indiana police officer, violated Ford’s Fourth and Fourteenth Amendment rights when he used excessive force to seize Ford. The district court denied Detective Gerardot’s motion for summary judgment based on qualified immunity. Detective Gerardot then appealed this denial under Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). For the reasons set forth in this opinion, we dismiss the appeal for lack of jurisdiction. * * *In CSX Transportation v. Appalachian Railcar (SD Ind., Judge Hamilton), an 8-page opinion, Judge Rovner writes:Conclusion. The district court denied Detective Gerardot’s motion for summary judgment because there were genuine issues of material fact as to whether Ford was a threat to Detective Gerardot. Because Detective Gerardot has not raised any legal arguments based upon the facts that the district court assumed in denying him qualified immunity or on the facts alleged by Ms. White, we lack jurisdiction under the Supreme Court’s holding in Johnson to review the district court’s decision. Accordingly, we dismiss the appeal for lack of jurisdiction.
In April 2004, for reasons still unknown, thirteen railcars derailed in Evansville, Indiana. CSX Transportation determined that the railcars, which belonged to Appalachian Railcar Services (“ARS”), had derailed on CSX-owned track and, therefore, that CSX was liable for the damage. Some time after paying ARS for the damaged railcars, CSX concluded that the derailment had actually occurred on track that it did not own. Believing that its payment to ARS was based on a mistake, CSX brought this suit to recover the payment. The district court granted summary judgment to ARS based on the voluntary-payment doctrine, which precludes a claim for restitution on a voluntary payment made with full knowledge of the relevant facts. Because we believe that the voluntary-payment doctrine does not apply to the facts of this case, we vacate and remand for further proceedings. * * *For the reasons stated above, the judgment of the district court is VACATED and the case REMANDED for proceedings consistent with this opinion.
Posted by Marcia Oddi on December 5, 2007 02:01 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Courts - More on: Porter County Courthouse cell phone ban begins
Updating this ILB entry from Aug. 3, 2007, Bob Kasarda of the NWI Times has a story today headed "Court visitors rustling bushes over cell phone ban":
VALPARAISO | The cell phone ban at the county's three court buildings may have brought some peace of mind to judges and staff since taking effect four months ago, but it continues to create headaches for the public.Despite numerous news articles and colorful signs posted at the entrance to the buildings, visitors are still being turned away with their phones, said Dennis Replin, who heads up court security.
Many simply return their phones to their cars, he said.
But returning to a car can be a hardship for individuals running late for court or for those who parked several blocks away from the Valparaiso courthouse to avoid the two-hour parking limit in the downtown area.
A visitor dropped off at juvenile court this week found himself in a jam by not having a car in which to store his cell phone.
Replin said some visitors are resorting to hiding their phones in the bushes outside of the court buildings.
Porter Superior Judge David Chidester said he saw someone picking up their phone from beneath the bushes outside his office, yet he believes the benefits of the ban outweigh the inconveniences.
"This is an issue of security," he said.
When the ban took effect Aug. 1, Chidester voiced concern about the availability of devices that look like cell phones capable of shooting bullets.
The phones also pose problems at the courts because they can be used to take photographs, record hearings, interrupt the proceedings or be used to access the Internet, he said Tuesday.
An exception in the ban allowing attorneys, judges and officers of the court to carry cell phones in the buildings was criticized this week by Valparaiso City Councilman Robert McCasland, who proposed a resolution requiring those same individuals to wear hot pink lip gloss when visiting buildings owned by the city of Valparaiso.
Chidester was not amused by McCasland's proposal, but he does plan to suggest a change involving attorneys.
He has heard of cases where attorneys have carried their clients phones into the court buildings. He wants to prohibit that practice.
While courthouse security will not hold on to cell phones, the officers are willing to hold knives until a visitor leaves or hold on to guns for police officers visiting for reasons other than work, Replin said.
There has been talk about offering lockers or other options to store phones at the buildings, but Chidester said a private venture along those lines in Allen County failed.
Posted by Marcia Oddi on December 5, 2007 11:27 AM
Posted to Indiana Courts
Ind. Gov't - Vanderburgh County recorder's office records now online, for a fee
Jimmy Nesbitt of the Evansville Courier & Press reports today:
Digital records of documents at the Vanderburgh County recorder's office are now available online.Note that this is different from the Vanderburgh County assessor's records, which have been online since 2004 - see ILB entry here.County Recorder Betty Knight Smith has planned a seminar from 10 a.m. to noon Thursday in Room 301 of the Civic Center to discuss software used to download the documents. Representatives from Fidlar Software and the county recorder's office will demonstrate two remote access products, Laredo and Tapestry.
Laredo allows remote Internet access to county recorder records for a monthly subscription cost, which begins at $50 a month for up to 250 minutes of use to $250 a month for unlimited usage. It is the same software used at the public terminals in the recorder's office. Documents can be printed for a fee of $1 a page. A downloadable version of Laredo Software is available at www.fidlar.com.
Tapestry is a pay-as-you-go program that also allows remote Internet access. It is best suited for people who only occasionally need a document from the recorder's office. A quick search using Tapestry will cost $3.99 and an advanced search will cost $6.99. The user will pay 50 cents for each page viewed.
And this is different from the Vanderburgh County court records, which are not online. See this ILB entry from Sept. 24, 2006, headed "Vanderburgh County seeks to put court records online at no cost to public."
Posted by Marcia Oddi on December 5, 2007 11:16 AM
Posted to Indiana Government
Ind. Law - Still more on: New Albany lawsuit seeks new council districts
Updating this ILB entry from July 8, 2006, Dick Kaukas of the Louisville Courier Journal reports today in a story that begins:
The New Albany City Council made "a good-faith effort" but failed to comply with an agreement to settle a lawsuit seeking to realign the city's voting districts to make their populations more equal, a federal judge said yesterday.U.S. District Judge John Tinder in New Albany, ruling from the bench, extended the period for council compliance by 60 days. By then, Tinder said, the council should file notice of what it had done to meet the agreement's terms.
The plaintiffs in the lawsuit, filed in May 2006 demanding that boundaries of the city's six voting districts be redrawn, would then have 15 days to indicate whether they were "satisfied, or the effort fell short," Tinder said.
A new nine-member council elected last month will take office next month, about midway into the 60-day period, and it wasn't clear yesterday whether the current or new council will try to meet the deadline.
The council's next regular meeting is Dec. 20, although a special session could be called. It would take three votes to pass a redistricting ordinance, but in emergencies the council has sometimes suspended its rules and given an ordinance three votes at a single meeting.
Larry Kochert, the council president whose term expires this month, said after yesterday's court hearing that his preference is not to wait.
"I would like to get it done," he said, adding that he will follow the wishes of the council majority.
Posted by Marcia Oddi on December 5, 2007 11:08 AM
Posted to Indiana Law
Tuesday, December 04, 2007
Ind. Decisions - More on: Retired Grant Circuit Judge Thomas Hunt wins pay suit
Updating this ILB entry from earlier today, here is a copy of the order of John W. Forcum, Special Judge, Grant Superior Court I, in the case of Thomas R. Hunt v. Mike Scott, et al. Many thanks to the reader who promptly provided a copy.
Posted by Marcia Oddi on December 4, 2007 03:32 PM
Posted to Ind. Trial Ct. Decisions
Ind. Gov't. - "Some public records denied with no legal authority"
Seth Slabaugh of the Muncie Star-Press today looks at two recent opinions of the state Public Access Counselor dealing with Delaware County. The story begins:
MUNCIE — One of the most common violations of Indiana’s Access to Public Records Act is when a government agency denies access with no statutory authority, according to Heather Willis Neal, the state’s public access counselor.You can read the actual PAC opinion in conjunction with today's story: 07-FC-190; Alleged Violation of the Access to Public Records Act by the Delaware County Jail is found here: 07-FC-129; Alleged Violation of the Access to Public Records Act by the Delaware County Assessor is found here.For example, the Delaware County Jail this year denied prison inmate Larry Kuhn access to the dates an attorney visited the prisoner in jail.
And Delaware County Assessor James Carmichael in 2005 denied a taxpayer the identities of data collectors numbered 221, 224 and 226 and the name of an appraiser numbered 220 on a property record card.
In both cases, Neal’s office determined the denials violated the law.
Posted by Marcia Oddi on December 4, 2007 01:49 PM
Posted to Indiana Government
Ind. Decisions - 7th Circuit tobacco trademark case out of Illinois turns on pictures
In Top Tobacco v. North Atlantic Operating Co. (ND Ill), a 7-page opinion, Chief Judge Easterbrook writes:
This case illustrates the power of pictures. One glance is enough to decide the appeal.Top Tobacco, L.P., sells tobacco to people who want to roll cigarettes by hand or make them using a cranked machine. This is known as the roll-your-own, make-yourown or RYO/MYO business. Top Tobacco and its predecessors have been in this segment of the cigarette market for more than 100 years, and the mark TOP®, printed above a drawing of a spinning top, is well known among merchants and customers of cigarette tobacco. North Atlantic Operating Company and its predecessors also have been in the roll-your-own, make-your-own business for more than 100 years, though initially only as manufacturers of cigarette paper. Not until 1999 did North Atlantic bring its own tobacco to market. The redesigned can that it introduced in 2001 bears the phrase Fresh-Top™ Canister. Top Tobacco maintains in this suit under the Lanham Act that none of its rivals may use the word “top” as a trademark. * * *
But no one who saw these cans side by side could be confused about who makes which: [pp. 3-4 sets out pictures of tobacco containers] * * *
Top Tobacco insists that even if the amendment (and North Atlantic’s new packaging) preclude equitable relief, it is still entitled to damages under the old version of §1125. But what we have said is enough to show that the word “top” is not famously distinctive “as a designator of source” in any sensibly specified niche of tobacco products. AFFIRMED
Posted by Marcia Oddi on December 4, 2007 01:42 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)
For publication opinions today (2):
In Phyllis J. Wrogeman v. Mitch Robb, Secretary of the Indiana Family & Social Services Administration , an 8-page opinion, Judge Bradford writes:
Appellant-Petitioner, Phyllis Wrogeman, appeals the trial court’s order dismissing her petition for judicial review of a final order issued by Appellee-Respondent Indiana Family and Social Services Administration (“FSSA”). Upon appeal, Wrogeman claims that the trial court, which dismissed her claim on the basis that it lacked jurisdiction, erred in concluding that her failure to include the entire agency record divested the trial court of jurisdiction. Wrogeman additionally claims the trial court erred in concluding that even if it had jurisdiction, her failure to include certified, rather than verified, documents warranted dismissal. We affirm. * * *Here, unlike in Izaak Walton League, Wrogeman failed to include even the transcript of the agency proceedings. In issuing its November 9 decision, FSSA indicated, “The Administrative Law Judge has carefully reviewed the testimony presented at the hearing, all evidence, Federal/State regulations, and policy transmittals in regard to this matter.” App. p. 18. With the exception of the Wrogeman Family Trust, Exhibit B, none of the above material apparently relied upon by the ALJ was included with the petition for judicial review.1 Regardless of whether Wrogeman disputed the ALJ’s findings of fact, such material was part of the agency record below and was specifically relied upon by the ALJ in making the ruling from which Wrogeman sought judicial review. As Wrogeman failed to include the agency record contemplated by Indiana Code sections 4-21.5-5-13 and 4-21.5-3-33, which, unlike in Izaak Walton League, directly concerned the sole decision she was appealing, the trial court properly determined it lacked jurisdiction in dismissing the case. * * *
While not necessary for the disposition of this case, we further observe, as the trial court did, that not only was the agency record in this case incomplete, it was neither original nor certified as required by Indiana Code section 4-21.5-5-13(a). Wrogeman argues that her petition and accompanying exhibits were “verified,” which in her view is adequate to fulfill the requirement that it be “certified.” Aside from offering arguably comparable dictionary definitions, Wrogeman presents no authority to support her position. Given the requirements that the agency maintain “official” records of all adjudicative proceedings and that, when petitioning for judicial review, the accompanying record must be either original or certified, it appears as a matter of common sense that certification must come from the agency creating the record, not from the petitioning party or her attorneys. Indeed, we have stated in the past that verified documents may be substituted for certified documents only where the record shows a good faith effort has been made to secure certified copies, and a petitioner is unable to obtain them due to circumstances beyond her control. * * *
In sum, we conclude that the trial court properly dismissed Wrogeman’s petition due to her failure to include a certified copy of the agency record with her petition for judicial review.
Matter of the Adoption of B.R.; Samuel Lee Shell v. William Brandon Rountree - "The trial court erred in concluding that William’s consent to the adoption was required. Reversed and remanded."
NFP civil opinions today (4):
Paternity of A.J.C.; Robert Crawley v. Andrea Moore (NFP) - "Appellant-Respondent Robert Crawley appeals from the trial court’s order denying his motion to set aside the paternity affidavit filed in response to Appellee-Petitioner Andrea Moore’s petition to establish paternity to provide support pursuant to the execution of the paternity affidavit. After reviewing the record, we conclude that this matter is not yet ripe for appeal and that we lack subject matter jurisdiction over this appeal because the trial court has yet to issue a final judgment. This matter is therefore dismissed."
Termination of the Parent-Child Relationship of M.P., S.F., D.F.; Leanna Fitzgerald and Daniel Fitzgerald v. Daviess County Department of Child Services (NFP) - "Appellants-respondents Leanna and Daniel Fitzgerald bring this consolidated appeal from the trial court’s order terminating their respective parental relationships with M.P., S.F., and D.F. The Fitzgeralds argue separately that there is insufficient evidence supporting the trial court’s termination order. Finding no error, we affirm the judgment of the trial court."
Termination of the Parent-Child Relationship of K.H.; Jessica Hartman v. Delaware County Office of Family & Children (NFP) - "Appellant-respondent Jessica Hartman appeals the trial court’s order terminating her parental rights with respect to her daughter, K.H. Hartman argues that the trial court erroneously admitted laboratory reports revealing the results of a number of Hartman’s drug screens and that the evidence is insufficient to support the termination of her parental rights. Finding no error, we affirm the judgment of the trial court."
James R. Recker, II v. Alley Cat Lounge (NFP) - "Since we have concluded that the trial court did not abuse its discretion by setting aside the default judgment or in denying Recker’s request to introduce additional evidence before the court, we hereby affirm the judgment of the trial court."
NFP criminal opinions today (3):
David Gardner v. State of Indiana (NFP)
Tiffany Stallworth v. State of Indiana (NFP)
Kenneth Hurt v. State of Indiana (NFP)
Posted by Marcia Oddi on December 4, 2007 01:22 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Supreme Court decides contracts dispute
In Ronald D. Liggett, d/b/a Liggett Construction Co. v. Dean and Elisabeth Young, a 12-page opinion, Justice Dickson writes:
The plaintiff, Ronald Liggett, d/b/a Liggett Construction Company, brings this appeal to challenge a trial court summary judgment ruling in a contract dispute arising from Liggett's con-struction of a private residence for his attorney, defendant Dean Young, and Young's wife, Elisa-beth. To address whether the parties' attorney-client relationship affects the resolution of this dispute, we granted transfer, and now reverse the trial court. * * *Having previously granted transfer, thereby automatically vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A), we now reverse both (a) the trial court's final judgment in favor of the Youngs and against Liggett as to all of Liggett's claims against the Youngs and (b) the grant of the Youngs' motion for partial summary judgment as to Liggett's claims. This cause is remanded to the trial court for resolution of the remaining claims of each party in a manner consistent with this opinion.
Shepard, C.J., and Sullivan and Rucker, JJ., concur.
Boehm, J., concurs in result with separate opinion. [that begins] The dispositive issue in this appeal is whether the contract provision bars Liggett’s claim to be compensated for unwritten change orders. I agree with the majority that summary judg-ment in favor of the Youngs must be reversed, and this case should be remanded for trial.I think that despite its odd procedural posture, this case boils down to some familiar and relatively simple points. At a time when Dean Young was acting as Liggett’s attorney, the Youngs contracted for Liggett to build their home. Liggett had no separate attorney. Liggett claims that the parties agreed to oral change orders and that a variety of change orders added substantially to the cost of the project. He seeks compensation for those. The Youngs respond to Liggett’s claims by invoking the provision in their written contract that prohibited unwritten change orders.
Posted by Marcia Oddi on December 4, 2007 12:58 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Retired Grant Circuit Judge Thomas Hunt wins pay suit [Updated]
Mishele Wright reports today in the Marion Chronicle-Tribune:
Former judge Thomas Hunt has won a lawsuit against Grant County in which he asked for back pay to make up for what he said was an illegal reduction in salary.Earlier ILB entries include this one from Dec. 23, 2006, headed "Grant Circuit Court Judge Thomas Hunt retiring," and this one from Nov. 10th, 2006 headed "Grant Circuit Court Judge R. Thomas Hunt sues over cut pay," which includes a link to the complaint.According to the decision, the county will have to pay Hunt $5,000 from 2006, plus interest and court fees.
Mike Scott, president of the Grant County Council, said the county would more than likely appeal, and it has 30 days to do so. He said he wasn't surprised by the decision, which was made Nov. 21.
"From the beginning, I felt this would go much higher than the local level," he said.
Scott said the lawsuit probably would be discussed at the next council meeting, set for Dec. 12. He said he thinks the case will set a precedent for some county employees.
"I'm anxious to see it get to the appellate court," he said.
The decision was made in Grant Superior Court I by a judge from Blackford County, he said. The judges in Grant County refused to hear the case, Scott said.
"It's unfortunate we're even in this situation in the first place, but that's the kind of society we live in," he said. "Anybody and everybody has the opportunity to sue."
Hunt wouldn't comment on the decision, but his attorney Joe Certain said they were pleased with the outcome.
Hunt filed the lawsuit in November 2006 against Scott and other council members, county commissioners and the county auditor.
According to court documents, Hunt submitted to the council the proposed budget for his salary, and the council refused to appropriate the funds for the 2006 rate. Hunt said the council went against the state constitution, which says a circuit court judge's salary cannot be reduced while he is in office, and the Blackford judge ruled in Hunt's favor.
The ILB will attempt to obtain a copy of the trial court ruling.
[Updated] Access the Court's order here.
Posted by Marcia Oddi on December 4, 2007 12:42 PM
Posted to Ind. Trial Ct. Decisions
Ind. Law - "Glaspie said he asked several people in the Republican Party, who he declined to name, if his convictions for intimidation with a deadly weapon and criminal recklessness would make him ineligible"
Another story about a convicted felon and eligibility to public office today, this one in the Lafayette Courier & Journal. Brian Wallheimer reports:
OXFORD -- Two 1993 felony convictions are coming back to haunt David Glaspie.Here is a list of some of the earlier ILB entries on a convicted felon's eligibility to run for, or serve in, public office.Glaspie will likely never take the seat he won on the Oxford Town Council last month, and now his job in the town's street and sewer department could be in jeopardy.
"The fact that he's a felon is a problem with me," said Lowell Gardner, a town councilman. "His employment will be seriously discussed."
Glaspie applied to run as an independent, at-large candidate for the council in this Benton County town. The application specifically asks if candidates are ineligible because of any criminal conviction.
Glaspie said he asked several people in the Republican Party, who he declined to name, if his convictions for intimidation with a deadly weapon and criminal recklessness would make him ineligible.
"When I asked about my criminal convictions, I was told they weren't pertinent on the local level," Glaspie said. "I sought out information to make sure it was on the up-and-up and I found out it's not."
Janet Hasser, Benton County Circuit Court clerk, said she is seeking advice from the Indiana Election Division on what to do. She said she's never had a case similar to this.
"There's no clear answer because it's an at-large seat and there are no state statutes for this and the deadline to contest the election has passed," Hasser said. "He's not eligible to assume office."
Glaspie said he's looking for an attorney to advise him on the matter. He said he wants his options, but isn't looking for a long legal battle.
Posted by Marcia Oddi on December 4, 2007 12:27 PM
Posted to Indiana Law
Ind. Courts - More on: Oral arguments this afternoon before 7th Circuit in Joseph E. Corcoran’s death penalty case
Yesterday morning, Rebecca S. Green of the Fort Wayne Journal Gazette previewed the oral arguments to take place that afternoon before a panel of the 7th Circuit in the State's appeal to reinstate the death penalty in the case of Joseph E. Corcoran v. Buss.
Today Green reviews the arguments, in this story. A sample:
CHICAGO – Nothing was typical about the case of convicted quadruple-murderer Joseph E. Corcoran, but whether a plea offer made by the then-Allen County prosecutor was appropriate is now a matter to be decided by a federal appellate court.Listen to yesterday's oral arguments here.Monday afternoon, Indiana Deputy Attorney General James Martin argued that Allen County Prosecutor Robert Gevers’ offer to withdraw the death penalty during plea negotiations was within his prosecutorial discretion.
Even if that offer came with the caveat that Corcoran give up his right to a jury trial and allow a judge to decide his fate.
A three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago took up the case after Indiana Attorney General Steve Carter appealed a ruling by a federal judge overturning the death penalty, saying Gevers’ offer violated Corcoran’s constitutional rights.
The federal judge’s ruling was the latest step in years of wrangling over Corcoran’s death sentence after he was convicted of murdering his brother, his sister’s fiancé and two of his brother’s friends in July 1997.
Both sides had 30 minutes to present their arguments Monday, and as they spoke, the three judges – William J. Bauer, Ann Claire Williams and Diane Sykes – questioned the lawyers on their interpretations of the law and their arguments.
Gevers’ offer to withdraw the death penalty in exchange for a bench trial instead of a jury trial was no different than any other negotiation common when both sides try to hammer out plea agreements, Martin argued.
Posted by Marcia Oddi on December 4, 2007 12:09 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Gov't. - Still more on "Storm Water Board resigns: Council criticized no-bid contract"
Updating this ILB entry from Aug. 30th, Dick Kaukas of the Louisville Courier Journal writes today in a story that begins:
The New Albany City Council's court challenge to contracts awarded by the city's sewer and storm-water boards without competitive bids won't be considered until next year -- if at all.Floyd Circuit Judge Terrence Cody decided yesterday to delay arguments because four new council members will be seated next month.
At the start of what had been scheduled as a hearing on motions to dismiss the lawsuit, Cody said it's possible that the new nine-member council could vote to drop the litigation.
Cody gave Jerry Ulrich, the lawyer who had filed the complaints, 40 days to submit written responses to the motions to dismiss. Those motions were made by Greg Fifer on behalf of the sewer board and by Mike Summers for the storm-water board.
By the time the 40-day period runs out, the new council will have met, giving members an opportunity to address the issue if they want to do so.
Earlier this year the sewer board voted 5-0 to renew its contract with Environmental Management Corp., which has been running the sewer system for $3.6 million a year. The new contract is for three more years at $3.3 million annually, starting next month.
The storm-water board later voted 2-1 to enter into an agreement with the company to run the storm-water system for $507,000 a year.
Both contracts were awarded without bids, with Fifer and Summers advising that the agreements were for the company to provide "professional services," so competitive bidding was not required.
The council subsequently voted 6-2 to file suit, asking Floyd Circuit Court to rule on the validity of the no-bid arrangements. Ulrich has contended that the contracts are for "public works" projects and must be bid under state law.
Posted by Marcia Oddi on December 4, 2007 12:03 PM
Posted to Indiana Government
Ind. Courts - Another update on: "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"
Referencing the ILB post from yesterday, Richmond attorney E. Thomas Kemp has a post today in his blog, Kemplog, titled "State Court Locks Out Competition," that begins:
Kudos to Marcia Oddi over at the Indiana Law Blog for bringing attention to the move by the Indiana Supreme Court’s administrative division to bring its plan to connect all county courts through a centralized computer network, and in the process, block out a private company that already links about half of Indiana county courts.
Posted by Marcia Oddi on December 4, 2007 10:34 AM
Posted to Indiana Courts
Monday, December 03, 2007
Courts - "There is no such thing as grandparents' rights. A right is something you're entitled to. Therefore, there can't be grandparents' visitation rights,"
That is a quote from the mother's attorney after a successful Illinois Supreme Court ruling involving the child's grandmother. Here are quotes from an editorial yesterday in the Sauk Valley Newspapers (serving Dixon, Sterling and Rock Falls, Illinois). From the editorial:
Fair-minded Illinois grandparents should not take Thursday's Illinois Supreme Court ruling as anything other than what it is - an affirmation that the rights of responsible parents can't be trumped by something called "grandparents' rights."The 7-page opinion, Flynn v. Henkel (Nov. 29, 2007) is available here. Thanks to How Appealing for the links.The case pitted two Dixon women - Alice Henkel, the mother of a 4-year-old boy, and Cindy Flynn, the boy's paternal grandmother. Several factors complicated this relationship.
The boy's father, a convicted drug dealer, is serving a prison term for his second domestic battery case. The mother stated she is afraid of the father and was concerned about the environment her son would be subjected to while visiting the grandmother. Along with that, the mother stated the grandmother did not respect her religion and would not do things she asked with respect to the boy. As the disagreement developed, the mother chose not to allow her son to see his grandmother.
The grandmother, citing the state's grandparent visitation statute, petitioned the court two years ago seeking visitation rights. A local judge approved and then the appellate court upheld the grandmother's supposed right to have the grandson visit her in her home for three hours a month.
With Thursday's ruling, Supreme Court justices overturned those decisions. The court, which already had nullified the grandparent visitation law in 2002, reiterated parents' rights to raise their children as they see fit, except in the case of a child's physical, mental or emotional health being placed in jeopardy. * * *
As important as grandparent-grandchildren relationships are, they must meet with the parents' approval. They can't be forced upon unwilling parents by grandparents wielding a state law.
How did Illinois pass a grandparent visitation law in the first place? Perhaps the rise of irresponsible parents and the added responsibilities on grandparents' shoulders helped sway lawmakers' minds. It also might be a commentary on the age of certain legislators who passed the original law. Maybe there were more grandparents than parents in the bunch.
Regardless, Supreme Court justices made the right decision. The rights of responsible parents should be respected.
Posted by Marcia Oddi on December 3, 2007 02:42 PM
Posted to Courts in general
Ind. Courts - Update on: "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"
In this ILB entry from Oct. 26th, about the JTAC pilot project in Monroe County, the ILB quoted an Indianapolis Star story as stating "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." Then the ILB continued:
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.The entry went on to quote from a DoxPop memo that began "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," and then continued by explaining that DoxPop was attempting to work out an interface between the JTAC and DoxPop systems.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.
Apparently these efforts have thus far proven unsuccessful, according to a letter sent out today by Ray Ontko, President, which begins:
To all Doxpop users:It looks like JTAC's "pilot program" may not encompass any effort to interface the new CMS system with the long-term and wide-ranging existing networks upon which the legal community relies.The Courts of Monroe County plan to stop sending case information to Doxpop on December 17, 2007. Doxpop plans to continue to provide access to historical case information, but new information about current cases will no longer be available via the Doxpop website.
The Monroe Courts are switching to a new case management system (CMS) provided by the State Court's Judicial Technology and Automation Committee (JTAC). On October 25 we formally requested access to Monroe County case information via the new system. We are waiting for the Division of State Court Administration to act on our request.
Posted by Marcia Oddi on December 3, 2007 01:53 PM
Posted to Indiana Courts
Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)
For publication opinions today (3):
In Andre Deshazier v. State of Indiana, a 23-page opinion, Judge Robb writes:
After a jury trial, Andre Deshazier was convicted of carrying a handgun without a license, a Class C felony; two counts of resisting law enforcement, one as a Class D felony and one as a Class A misdemeanor; and possession of marijuana, a Class A misdemeanor. The trial court sentenced Deshazier to eight years with two years suspended for carrying a handgun, three years for felony resisting arrest, one year for misdemeanor resisting arrest, and one year for possession of marijuana. The trial court ordered all sentences to run consecutively, except for the misdemeanor resisting arrest sentence, which it ordered to run concurrent to the felony resisting arrest sentence. Deshazier now appeals the handgun conviction, one of the resisting arrest convictions, and his sentence, raising the following issues:In Ashley N. Galvan v. State of Indiana, a 7-page opinion that criticizes the defendant's attorney's brief and orders him to return his fee for appellate services, Judge Friedlander writes:1. Whether sufficient evidence supports Deshazier’s conviction for carrying a handgun without a license;Concluding sufficient evidence exists to support his conviction, double jeopardy does not bar Deshazier’s two convictions for resisting arrest, and consecutive sentences are permitted, we affirm.
2. Whether the prohibition of double jeopardy precludes one of Deshazier’s convictions for resisting arrest; and
3. Whether the imposition of consecutive sentences violates Indiana Code section 35-50-1-2(c).
Ashley N. Galvan pleaded guilty to Possession of Cocaine, a class D felony, and Operating a Vehicle While Intoxicated (OWI), a class A misdemeanor. The trial court sentenced her to one and a half years for possession of cocaine, with all but ninety days suspended to probation. With respect to the OWI offense, the trial court imposed a concurrent sentence of one year, with all but six days suspended. On appeal, Galvan challenges her sentence as inappropriate. We dismiss. * * *In James H. Lindsey v. State of Indiana , a 15-page opinion, Judge Friedlander writes:In the plea agreement, Galvan expressly waived her right to appeal her sentence. Despite this provision of the plea agreement (the existence of which Galvan never acknowledges in her argument to this court), Galvan appeals her sentence as inappropriate.
Due to flagrant violations of the appellate rules, we dismiss Galvan’s appeal. We have warned Galvan’s attorney, John G. Clifton, on at least three occasions regarding his inadequate appellate advocacy. * * * Therefore, we once again are compelled to address the glaring deficiencies in the appellate materials Clifton has submitted in the instant appeal.
Of particular note, we find the statement of facts wholly inadequate. As Clifton has been reminded several times, Indiana Appellate Rule 46(A)(6) requires the statement of facts section to describe in narrative form “the facts relevant to the issues presented for review” supported by citations to the record. In addition to providing no citations to the record, Clifton makes no attempt to provide us with the facts relevant to the issue presented for review. Rather, he merely offers a recitation of the charges filed against his client. This constitutes a flagrant violation of the appellate rules and is unacceptable appellate practice. * * *
The statement of the case is also incomplete and of little assistance to us in this appeal. Clifton provides no citations to the record and, as set forth above, does not even provide us with a correct statement of the sentence received by Galvan. * * *
Further, the summary of the argument section, though titled as such, cannot be considered a summary of Galvan’s appellate arguments. In this regard, the appellate rules provide: “The summary should contain a succinct, clear, and accurate statement of the arguments made in the body of the brief. It should not be a mere repetition of the argument headings.” App. R. 46(A)(7). Disregarding the rule, Clifton has simply cut and pasted into this section his previous statement of the issue, which also constitutes the argument heading in the brief. In sum, Clifton’s summary is: “I. Inappropriateness of sentence.” * * *
Finally, we observe that the argument advanced by Clifton in support of Galvan’s appeal is inadequate and not supported by cogent reasoning as required by App. R. 46(A)(8)(a). We have recently observed: “‘A brief is not to be a document thrown together without either organized thought or intelligent editing on the part of the brief-writer. Inadequate briefing is not, as any thoughtful lawyer knows, helpful to either a lawyer’s client or to the Court.’” * * * In sum, the argument presented by Clifton offers no assistance to us in addressing Galvan’s appeal. * * *
In light of the numerous and flagrant violations of our appellate rules, we must dismiss Galvan’s appeal. * * * Moreover, due to Clifton’s flagrant and repeated violations of the appellate rules, we conclude that Clifton is not entitled to a fee for his appellate services in this case, and we direct him to return to the payor any fee he may have already received. Finally, we caution Clifton that future violations such as this may result in additional consequences, such as referral to the Supreme Court Disciplinary Commission for investigation, as Indiana Professional Conduct Rule 1.1 requires attorneys to represent their clients competently. Dismissed.
James N. Lindsey was convicted of Operating a Vehicle with an Alcohol Concentration Equivalent (A.C.E.) of .15 or More, a class A misdemeanor, and was also found to be a Habitual Substance Offender (HSO). The trial court sentenced Lindsey to one year on the misdemeanor conviction and enhanced that sentence by an additional seven years for the HSO determination, resulting in a total sentence of eight years. Upon appeal, Lindsey presents five issues for our review:NFP civil opinions today (2):1. Was Lindsey denied due process of law when the State failed to disclose evidence relating to his status as an HSO in violation of a pre-trial discovery order?We affirm.
2. Does Lindsey’s HSO sentence enhancement violate the proportionality clause of the Indiana Constitution?
3. Is it cruel and unusual punishment for Lindsey to serve an eight-year sentence at the Orange County Jail?
4. Did the trial court improperly overlook as a mitigating circumstance Lindsey’s guilty plea to being an HSO when it imposed a seven-year sentencing enhancement?
5. Is Lindsey’s eight-year sentence inappropriate?
Matter of the Termination of the Parent-Child Relationship of M.O.H.; Michael Otis Hampton v. Tippecanoe County Department of Child Services (NFP) - "We conclude the Tippecanoe County Division of Family and Children proved by clear and convincing evidence that continuation of the parent-child relationship posed a threat to M.H.’s well-being and that termination of Hampton’s parental rights was in M.H.’s best interests. Therefore, we affirm the termination of Hampton’s parental rights."
Term. of Parent-Child Rel. of D.M., K.M., and J.M., and Nancy Moore v. Bartholomew Dept. of Child Services (NFP) - "In sum, we cannot say that the trial court abused its discretion in denying Moore’s motion to dismiss the termination proceedings. Although the trial court could have appointed counsel for Moore at an earlier stage of the CHINS proceedings, there is no statute or case law requiring such an appointment. Moreover, Moore has failed to show how the termination outcome would have differed had her request for the appointment of counsel been granted. Hence, Moore has failed to show that her right to due process was violated."
NFP criminal opinions today (12):
In the Matter of K.T. v. State of Indiana (NFP) - "K.T. was adjudicated a delinquent child for committing acts that would constitute Battery, a class A misdemeanor, and Disorderly Conduct, a class B misdemeanor, if committed by an adult. K.T. challenges the true finding of disorderly conduct, presenting two issues for review. We need not address those issues, however, because we find a different issue dispositive of the appeal. That issue is: did the true findings of both battery and disorderly conduct violate double jeopardy principles under the Indiana Constitution? We reverse and remand with instructions."
Charmin Wilson v. State of Indiana (NFP)
C.H. v. State of Indiana (NFP)
Michael L. Jones v. State of Indiana (NFP)
Anton Ligons v. State of Indiana (NFP)
Leon Harris v. State of Indiana (NFP)
Melissa Stanley-Moss v. State of Indiana (NFP)
James E. Turpin v. State of Indiana (NFP)
Kenneth K. Tesky v. State of Indiana (NFP)
Kenya Wright v. State of Indiana (NFP)
Richard Pinkham v. State of Indiana (NFP)
Korean U. Daniels v. State of Indiana (NFP)
Posted by Marcia Oddi on December 3, 2007 01:20 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Oral arguments this afternoon before 7th Circuit in Joseph E. Corcoran’s death penalty case
Rebecca S. Green of the Fort Wayne Journal Gazette reports today in a story that begins:
The Indiana Attorney General’s Office will ask a federal appeals court today to reinstate quadruple-murderer Joseph E. Corcoran’s death penalty that was thrown out this yearIn April, U.S. District Judge Allen Sharp overturned the death sentence imposed in 1999 after a jury convicted the then-22-year-old Corcoran of four counts of murder. In July 1997, Corcoran shot and killed his brother, James Corcoran, 30; his sister’s fiancé, Robert Scott Turner, 32; and two of his brother’s friends – Timothy G. Bricker, 30; and Douglas A. Stillwell, 30 – at a Bayer Avenue home.
Even though he found Corcoran’s habeas corpus request “seriously untimely,” Sharp’s 34-page ruling said that then-Allen County Prosecutor Robert Gevers inappropriately punished Corcoran by pursuing the death penalty against Corcoran after he declined to face a trial before a judge and chose to allow a jury decide his fate.
Though Sharp’s ruling did not grant Corcoran a new trial, it removed the death penalty and sent the case back to an Allen County judge to again pass sentence – this time to a term of life in prison without parole or to a set number of years.
“It is the holding of this court that the prosecution unconstitutionally penalized (Corcoran) by seeking the death penalty when (Corcoran) refused to consent to the prosecution’s offer to forgo the death penalty in exchange for (Corcoran’s) consent to waive a jury trial and proceed with a determination of guilty by the judge,” Sharp wrote.
Attorney General Steve Carter decided to appeal Sharp’s decision and the matter is now to be heard by the 7th Circuit of U.S. Court of Appeals in Chicago. Each side will get 30 minutes to present oral arguments before a panel of three judges this afternoon.
Posted by Marcia Oddi on December 3, 2007 12:01 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Law - "Wine-shipping ruling adds holiday cheer"
The practical implications of the wine-shipping ruling for the holiday shopper were the subject of Dan and Krista Stockman's "Uncorked" column in the Sunday Fort Wayne Jounral Gazette. A sample:
Of course, when the court struck down the parts of the shipping law that made it almost impossible to get wine from Indiana wineries, it also opened the door to out-of-state wineries. As long as those wineries follow the same rules – like getting a state permit – they can ship to you the same way an Indiana winery can. That doesn’t mean, however, that all of them will. Some won’t want to deal with the paperwork and the bother. But you won’t know until you ask. And here’s another hint: If you want them to get a $100 permit so you can order one bottle, they might not be too excited about it. If you’re ordering a case, though, they might be more inclined.Still unsettled is what happens with wine stores. The law only addressed wineries. As it currently stands, it appears wine retailers can deliver wine to you themselves, but not ship it through a third-party carrier such as UPS. Kahn’s Fine Wines in Indianapolis, for example, will deliver anywhere in the state – if the order is big enough.
Posted by Marcia Oddi on December 3, 2007 11:57 AM
Posted to Indiana Law
Ind. Courts - More on "Monroe courts picked as computer test site"
Supplementing, burt not adding anything new to this ILB entry from Nov. 27th is a story today in the Indiana Daily Student headlined "Monroe County first in state with ‘Odyssey’: Computerized system makes court cases electronic."
Posted by Marcia Oddi on December 3, 2007 11:10 AM
Posted to Indiana Courts
Ind. Gov't. - Law change means local government can add labor and overhead when calculating the cost for copies
Seth Slabaugh of the Muncie Star-Press reports today:
In January of 2006, the chief of police in New Castle told an attorney he would have to pay a copy charge of 35 cents a page to obtain police records.Rod Crossland, owner of Wishbone Gifts in downtown Muncie, was charged 25 cents a page in July of 2006 for copies of records maintained by the city of Muncie building commissioner.
Karen Davis, Indiana Public Access Counselor at the time, determined that both cities had violated the state's Access to Public Records Act (APRA) by charging excessive copying fees.
"To me, that was just one more issue in a series of aggravations I was angry at the city about," recalled Crossland, who was involved in a legal dispute with the city over whether he was permitted to occupy an apartment above his store.
Crossland also alleged the city denied him access to public records. Davis found that the city might have done so.
New Castle illegally included labor costs in the setting of its copy fee, and it charged an excessive fee to supplement its fire department budget, according to Davis.
"I agree that at one time the city probably charged more than what state law calls for," said Dave Copenhaver, city attorney for New Castle. He identified the person who complained about the 35-cent copy fee as an attorney seeking traffic-accident reports so he could send letters to personal-injury victims.
State government agencies legally are allowed to charge only 10 cents a copy for most public records, and local government agencies can set a fee schedule not to exceed 10 cents a page for black and white copies.
But that was before July 1, when a change was made in the law by House Enrolled Act 1379. Until then, local government agencies by law could not include labor and overhead when calculating the cost for copies.
"The language excluding labor and overhead was inadvertently stricken from the statute, so, since July 1 of this year, local governing bodies can include those in their copy fees," said Heather Willis Neal, the current Indiana Public Access Counselor. "I expect this to be corrected in the 2008 Legislative session. I have heard that at least one legislator will move to amend the language back in."
Two months ago, Neal investigated a complaint that southern Indiana's Clarksville Town Council violated APRA by adopting a fee schedule of 25 cents a page for copies of public records. The town's planning commission conducted a study of how much it cost to retrieve and copy a document. The study found that the cost was $1.61 a document.
Considering the fact that the council set the copy fee well under $1.61 a page and given the change in state law, Neal found that Clarksville had not violated APRA by establishing a fee schedule of 25 cents a page.
APRA states that "providing persons with information is an essential function of a representative government and an integral part of the routine duties of public officials."
Posted by Marcia Oddi on December 3, 2007 11:03 AM
Posted to Indiana Government
Environment. - More on: BioTown, USA. Remember little Reynolds, Indiana? Population 500
This ILB entry from Nov. 1st featured a Wall Street Journal story headed "An Ethanol Glut Hits Home In BioTown, USA.."
This story today in the Lafayette Journal & Courier, by Joe Larson, reports:
John Heimlich, president of the White County commissioners and president of the BioTown USA Development Authority, said many Reynolds residents are taking an approach similar to Wiese's."I think they're just waiting to see what happens," Heimlich said.
So far, there hasn't been much to see. Construction hasn't started on any of the bioenergy projects planned for the technology suite.
Those behind the BioTown project insist that progress will be made and that Reynolds residents and area farmers need to be patient.
Posted by Marcia Oddi on December 3, 2007 10:58 AM
Posted to Environment
Ind. Decisions - Upcoming oral arguments this week include: Attractive nuisance case involving trampoline; statute of limitations for bringing UST claims
This week's oral arguments before the Supreme Court:
This Thursday, Dec. 6th:
9:00 AM - Beth Kopczynski v. David Barger - The Washington Superior Court entered summary judgment for the Bargers on the complaint of Beth Kopczynski and her daughter, Alisha Palmer, arising out of injuries that Palmer sustained while jumping on a trampoline located in the Bargers' yard. The Court of Appeals affirmed based on conclusions that Palmer was a trespasser on the Bargers' property and the trampoline was not an attractive nuisance. Kopczynski v. Barger, 870 N.E.2d 1 (Ind. Ct. App. June 27, 2007), vacated. [See ILB entry here, 2nd case] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Kopczynski and Palmer, Daniel L. Brown, Salem, IN. Attorney for the Bargers, Thomas E. Scifres, Salem, IN.
9:45 AM - Richard Pflanz v. Merrill Foster - According to a complaint filed by the current owners of certain real property, they incurred costs in closing, removing, and cleaning up environmental contamination caused by, leaky underground storage tanks that a former owner had used as part of a gas station. When the current owners sued the former owner for, among other things, contribution toward the costs, the Jackson Superior Court dismissed the complaint after concluding the claims were barred by applicable statutes of limitations. The Court of Appeals affirmed. Pflanz v. Foster, 871 N.E.2d 971 (Ind. Ct. App. June 19, 2007), vacated. [See ILB entry here, 2nd case] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for the Pflanzes, Donn H. Wray, Justin W. Leverton, Indianapolis. Attorneys for Foster, Rodney E. Farrow, Indianapolis. For Amici Curiae, the Indiana Petroleum Marketers and Convenience Store Association, George M. Plews, Christopher J. Braun, Jeffrey D. Featherstun, John D. Moriarty, Indianapolis. For Amici Curiae, the Insurance Institute of Indiana, Inc., and National Association of Mutual Insurance Companies, John C. Trimble, Richard K. Shoultz, Indianapolis. For Amici Curiae, the Indiana Association of Cities and Towns and Indiana Municipal Lawyers’ Association, Donald M. Snemis, Brent H. Huber, Freedom S.N. Smith, Indianapolis.
10:30 AM - Robert Bassett v. State - Following a retrial, Bassett was again convicted of four counts of murder and, upon the unanimous decision of the jury, he was sentenced to life without parole by the Dearborn Circuit Court. In this direct appeal, Bassett argues: the State’s interference with the attorney/client relationship warrants reversal of the convictions, the trial court erred in admitting certain evidence and excluding other evidence, and the sentence should be reversed. Attorney for Bassett, Joseph M. Cleary, Indianapolis, IN Attorney for the State, Kelly A. Miklos, Indianapolis, IN.
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 Thursday, Dec. 6th:
12:30 PM - Willie G. Eaton v. State of Indiana - Willie Eaton appeals his convictions for Dealing in Cocaine, as a Class A felony, and Possession of Marijuana, as a Class A misdemeanor, following a jury trial. The Court is asked to decide whether the State provided the facts necessary to enable the trial court to find probable cause to issue a search warrant for Mr. Eaton’s residence. Arguing for the appellant, Mr. Eaton, will be David Jordan of Lafuze, Jordan & Cox in Richmond; Deputy Attorney General Scott Barnhart will argue for the State of Indiana. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Mathias. [Where: Rediger Auditorium, Taylor University, Upland, Indiana]
Posted by Marcia Oddi on December 3, 2007 07:31 AM
Posted to Upcoming Oral Arguments
Sunday, December 02, 2007
Ind. Courts - Federal court issues ruling on Carmel efforts to regulate gravel mining
The ILB has posted a number of entries on Carmel and Martinsville's efforts to regulate sand and gravel pits within their jurisdiction. Oral arguments were held Jan. 18th of this year before the Indiana Supreme Court in the case of City of Carmel v. Martin Marietta Materials, Inc.; a decision is pending.
In a case pending in federal court, Martin Marietta Materials v. Brainard, Judge David Hamilton issued a 35-page ruling Nov. 28th on defendant's motion for partial summary judgment:
Martin Marietta Materials, Inc. has sued the City of Carmel, the City of Carmel and Clay Township Board of Zoning Appeals (“BZA”), Carmel Mayor James Brainard, and four members of the BZA on claims relating to Martin Marietta’s current and proposed stone, sand, and gravel mining operations within Carmel city limits. Martin Marietta has asserted claims for: (1) deprivations of constitutional rights actionable under 42 U.S.C. § 1983; (2) common law breach of contract; and (3) inverse condemnation under Indiana Code § 32-24-1-16. Martin Marietta has also (4) appealed the BZA’s denial of its special use application for limestone mining. Defendants have moved for summary judgment on the breach of contract and inverse condemnation claims. As explained below, defendants’ motion for summary judgment is denied on the breach of contract claim as it applies to land that Martin Marietta’s predecessor owned when the contract was signed. In exchange for valuable property and other consideration, Carmel extended a broad promise not to “take any action” to limit, prohibit, or restrict the predecessor’s mining operations on its real estate. Carmel has not offered any persuasive reason why it should not be held to that promise. Carmel is entitled to summary judgment on the contract claim in part, however, to the extent that the claim applies to land that the predecessor did not own at the time the contract was signed. Defendants’ motion is also denied as to the inverse condemnation claim.Discussion of the inverse condemnation claim begins at the bottom of page 25 of the opinion, and concludes on pp. 32-33:
Here, Martin Marietta had a commercial lease to mine Mueller South. It could use the land in a variety of ways, presumably including – at least in theory – as a golf course. But at the time the land was leased and Martin Marietta committed to paying millions of dollars in rent, Martin Marietta reasonably could have expected that mining Mueller South would qualify as a legal non-conforming use allowed as a matter of right. The later enactment of zoning regulations requiring Martin Marietta to apply for discretionary permits to mine Mueller South and the subsequent denial of the mining application could constitute a regulatory taking of Martin Marietta’s property rights as a lessee. The fact that Martin Marietta could still use the land to construct a golf course does not defeat the claim for inverse condemnation. The government has the authority to effect such a regulatory taking, but it also has the obligation to pay for the taking if it does.While it is true that Martin Marietta has not been denied all income generating use of Mueller South, Martin Marietta offered evidence that the BZA has denied all profitable use of Mueller South. The court should not be understood as saying that all property owners or leaseholders are entitled either to make the most profitable use of property or to be paid compensation for the loss of such use. In this case, however, Martin Marietta has come forward with evidence that it committed millions of dollars to the mining of the Mueller South property at a time when it reasonably could have expected to be able to use the property for that purpose. The city later enacted provisions of law that have been applied thus far to prohibit that use. On this record, and as the issues have been framed, Martin Marietta has presented sufficient evidence to allow a reasonable trier of fact to conclude that the defendants have denied Martin Marietta all economically beneficial use of Mueller South. Defendants’ motion for summary judgment is therefore denied as to the inverse condemnation claim.
Posted by Marcia Oddi on December 2, 2007 04:36 PM
Posted to Ind Fed D.Ct. Decisions
Not Law - "Concussions Put College Players in Murky World"
The NY Times had an important front-page story on college football and concussions last Thursday. According to the story, although both the pros and high schools have concussion protocols, the college level does not. (At least not in football. I remember that a Stanford womens' basketball player - a scrappy point guard - who suffered too many concussions to meet Stanford protocol transferred to Texas to successfully complete her collegiate career a few years back.)
Those of you who watched the Stanford-Notre Dame game last weekend may be particularly interested in the multimedia side-bar, which begins: "When football players sustain traumatic blows to the head, some television commentators see a great play while others take a more sober tone."
Posted by Marcia Oddi on December 2, 2007 12:54 PM
Posted to General News
Ind. Courts - Vigo County drug court featured
Deb Kelly of the Terre Haute Trib-Star has two stories today on the Vigo County drug court. The first, headed "Much of Vigo Drug Court work plays out behind-the-scenes," begins:
Much of the behind-the-scenes work of the 11-year-old Vigo County Drug Court happens across the street from the courthouse — at the Community Corrections building — where lab technicians collect and process hundreds of drug screens each week.The second story, headed "Vigo County Drug Court participants work for improvement," begins:Drug court participants attend regular one-on-one meetings with caseworkers, group meetings focused on addiction and their regular court appearances – but one of the primary elements of drug court is testing.
In addition to Judge Barbara Brugnaux, who presides over drug court each week, the staff includes Paul Southwick, coordinator of the drug court and case manager, and Eve Fears, a case manager.
Drug court participants complete the program in phases, which last from 18 to 36 months.
During Phase 1, participants are drug-tested twice weekly; in Phase 2, they are tested weekly; by Phase 3, participants are tested twice a month and in Phases 4 and 5, the drug and alcohol tests become random.
The testing is not cheap, and though participants pay various fees to cover drug tests, the drug court program has been supported in part by federal grant dollars and by the Indiana Criminal Justice Institute. Brugnaux said some funding also has come from the county Prosecutor’s Office and the County Council.
Drug court administrators hope to approach the Indiana Legislature in 2009 to ask for appropriations for the program.
The cost is part of the reason there are so few drug court participants – the program initially was set up for 100 people, according to Southwick. Now, there are about 130, compared with the county Alcohol and Drug program, which currently has more than 650 cases.
During a recent court proceeding, the judge asked an offender if she had anything else to report.The young woman smiled shyly, saying, “I took my GED test.”
The judge, smiling, said, “My, you have had a lot of good news today — I think that deserves some popcorn.”
Several chuckles could be heard through the room, but Judge Barbara Brugnaux wasn’t kidding. Reaching across to her clerk, the judge took an unopened pack of microwave popcorn and handed it down from her platform to the young woman, saying, “Here you go. Keep up the good work. You’re free to go.”
The woman, returning to the gallery to retrieve her things before leaving the courtroom, smiled again as she made her way past the others waiting their turn.
The exchange took place during a recent session of Vigo County Drug Court; the woman, a participant in drug court, was checking in with the judge, who, along with a staff of case managers, coordinates the court.
Brugnaux presides over Vigo County Superior Court Division 5 – the court where most DUIs and drug offenses are heard. She spends each Wednesday morning calling up one by one her most recent flock of wayward drug addicts and alcoholics.
Brugnaux, who is often seen wearing a stern expression (and who is generally known in the courts for her strict adherence to courtroom decorum), breezes into the room for drug court each Wednesday with a cheery “Good morning!”
A chorus of voices returns her greeting; if they aren’t enthusiastic enough, she says again, “I said, good morning!”
It is a different atmosphere than found in most courtrooms – where victims, prosecuting attorneys, the accused, public defenders, and downtrodden family members usually sit quietly on hard benches waiting, with somber expressions, for any kind of news. Most criminal courtrooms are quiet, even when packed with people.
Posted by Marcia Oddi on December 2, 2007 12:44 PM
Posted to Indiana Courts
Saturday, December 01, 2007
Law - "High Stakes for Regulated Industry in Supreme Court Pre-emption Cases"
Marcia Coyle of the The National Law Journal wrote Friday on pre-emption cases before the Supreme Court this term:
A concerted effort by the business community to have federal law preclude, or "pre-empt," state personal injury laws and other regulations has arrived en masse at the U.S. Supreme Court this term.The ILB has had a long list of entries re pre-emption efforts, including this one from Sept. 16th headed "In Turnaround, Industries Seek U.S. Regulation" and this one from Sept. 11th headed "Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority?"The justices have agreed to decide five pre-emption cases that involve products liability, transportation of dangerous substances, labor and other areas, and they have asked the U.S. solicitor general for his views on a sixth case seeking review.
First out of the argument box will be Riegel v. Medtronic Inc., No. 06-179, on Dec. 3. It asks if a provision in the Medical Device Amendments to the federal Food, Drug and Cosmetic Act forecloses state law tort suits claiming injury from the design, manufacture and labeling of a medical device that was granted premarket approval by the Food and Drug Administration.
Posted by Marcia Oddi on December 1, 2007 06:34 PM
Posted to General Law Related
Environment - "Jacobus Tielen's lawyers are trying to resolve criminal and civil proceedings over manure management"
Seth Slabaugh reports in the Muncie Star-Press:
The Delaware County prosecutor's office and the Indiana attorney general's office have been negotiating the settlement of criminal and civil charges against a Delaware County pork producer since last year.The ILB has several related earlier entries.Deputy Prosecutor Eric Hoffman advised Delaware Circuit Court 4 Judge John Feick in July 2006 that an agreement was being negotiated with Jacobus Tielen, 39, rural Eaton, who faces three class D felony counts of violating environmental laws.
Feick this week conducted a status conference at which Tielen and his attorney, Scott Shockley, did not appear. The judge rescheduled the conference for Dec. 12 after Hoffman reported that an agreement to end the criminal case was being held up by the lack of a resolution of the civil matter.
Tielen is accused of knowingly or intentionally failing to maintain the required minimum freeboard of two feet in a lagoon holding 12 million gallons of hog manure. Freeboard is the distance between the manure level in the lagoon and the top of the lagoon.On June 8, 2005, the Indiana Department of Environmental Management filed a lawsuit against Tielen to restrain him from further swine breeding and to address his "brimming manure lagoon." The breeding ban was later lifted.
Criminal charges were filed Oct. 12, 2005, dismissed on April 4, 2006, and re-filed the next day.
Tielen's Indianapolis law firm, Plews, Shadley Racher and Braun, presented a settlement proposal to IDEM on Dec. 15, 2006. This past April 10, IDEM -- represented by the attorney general -- responded with a proposed agreed order.
Tielen's attorneys are reviewing the proposed agreed order and will provide comments to IDEM soon, Valerie Tachtiris, a deputy attorney general, told Delaware Circuit Court 1 Judge Marianne Vorhees.
The parties continue to negotiate in good faith, according to Tachtiris.
Since 1999, Tielen has been fined more than $21,000 for spilling manure, failing to report a manure spill, killing a small number of fish and other violations. Authorities claim Tielen has continually shown contempt for laws, rules and orders governing manure management.
In 2002, one of Tielen's ex-employees told The Star Press he was fired for blowing the whistle to IDEM on a manure spill at Tielen's farm. Tielen, a Dutch immigrant, reportedly told the worker that American inspectors were dumb. Tielen called the worker's story ridiculous and said he was fired for lack of attendance and poor job performance.
Posted by Marcia Oddi on December 1, 2007 06:25 PM
Posted to Environment
Ind. Gov't. - "Allen civil court documents to go online"
Benjamin Lanka reports today in the Fort Wayne Journal Gazette:
People will soon be able to access Allen County court documents online, for a fee.The county commissioners Friday approved a contract with DoxPop of Richmond to place public court documents on the Internet.
Clerk Therese Brown said the service will give attorneys, researchers and the general public a way to access lawsuits and other filings from their homes.
The service doesn’t cost the county anything because the company charges a fee to people wanting to access the information.
The firm charges a monthly access fee from $25 to $450 based on how often someone plans to use the site.
Brown said she has an agreement with the civil court, but she hopes to have approval from the criminal court before the information goes live after the new year.
If the program is successful, Brown said it won’t only provide a convenience for people looking for information, but it also could cut down on some of the requests her staff receives to search for files. She said they will still be responsive to all requests.
The site will not offer access to restricted or confidential materials, Brown said, nor could someone use it to hack into the county’s system because that is a separate system.
Posted by Marcia Oddi on December 1, 2007 06:18 PM
Posted to Indiana Government
Friday, November 30, 2007
Ind. Decisions - Supreme Court denies Bopp motion for an emergency writ regarding the middle initial issue in the recount
Here is the order issued this afternoon in the case of STATE OF INDIANA EX. REL, DUKE BENNETT v. VIGO COUNTY (84 S 00 - 0711 - OR - 00558):
Relator's application papers include a request for an emergency writ. An emergency writ is limited in purpose; it operates as a temporary stay of the proceedings in the trial court until this court hears and rules upon the original action application. Ind. Original action rule 3(e)(1).For background, start with this entry from earlier today.A relator seeking an emergency writ has the burden of demonstrating that an emergency writ must be issued to maintain the status quo and prevent irreparable injury until the underlying application can be heard.
The only allegation of irreparable harm made by relator is his assertion that an emergency writ is necessary because the trial court may conclude the cases below before this court has the opportunity to resolve this original action.
However, such a general allegation is insufficient to establish irreprarable harm.
Accordingly, the court denies the request for an emergency writ.
Nevertheless, the court determines this original action warrants additional briefing. Accordingly, the honorable David R. Bolk (by himself or by counsel) and any party opposing relator in the trial court may each file a brief opposing issuance of the writ and, if appropriate, a supplemental record of proceedings.
Any supplemental record should be submitted in the same format required for the record under original action rule 3(c). Such briefs or supplemental records should be filed directly with the clerk of the supreme court, court of appeals, and tax court and must be physically on file (not merely in the mail) at or before noon on friday, december 7, 2007. Once briefing is completed, the court will take the matter under advisement.
Randall T. Shepard, Chief Justice
Posted by Marcia Oddi on November 30, 2007 06:02 PM
Posted to Ind. Sup.Ct. Decisions | Indiana Decisions | Indiana Government
Ind. Decisions - Voter ID - What's at Stake?
PENNumbra, "A project of the University of Penneslyvania uniting the public and the legal acadamy," presents this 21-page debate between two law profs on Crawford v. Marion County Election Board. Here is the summary:
Professor Smith finds no reason for the Court to tinker with Indiana’s voter ID laws, and leads off the debate by invoking the “broken windows” theory of Kelling and Wilson. He intuits that “to most Americans . . . a requirement that a voter demonstrate that he is who he claims to be is considered a most minimal intrusion.” He continues, even if it is true “that a voter ID law prevents very little fraud in a direct sense, . . . like fixing broken windows and cleaning up litter and graffiti, such a basic procedure may prevent fraud from growing. It sends a message that voting is serious . . . .”Professor Foley agrees that voting is a serious matter—so serious, in fact, that “[e]qual voting rights are a prerequisite to democratic fairness not only for their instrumental value . . . but also . . . for the additional symbolic . . . reason that they signify the equality of citizenship upon which democratic fairness depends.” Professor Foley sees Indiana’s law as unnecessarily draconian and argues that “a fair effort to introduce modernity and rationality to th[e] authentication process would use a form of public-spirited . . . reasoning that attempted to consider the interests of all citizens equally, rather than to select a more onerous than necessary method of authentication because it would promote a partisan advantage.”
Posted by Marcia Oddi on November 30, 2007 05:07 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Transfer list for week ending November 30, 2007
Here is the Indiana Supreme Court's transfer list for the week ending December 30, 2007. Be sure to view all 4 pages.
There were two transfers granted this week (plus one criminal grant, with opinion). See this ILB entry from earlier today for details.
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 November 30, 2007 04:18 PM
Posted to Indiana Transfer Lists
Law - Friday reading: How students enter law school with high-minded ideals and walk out the doors avaricious corporate lawyers
Two good posts this afternoon in the WSJ Blog: "Law Blog Advice Column: What Should Beirne Do?" is the first; "Has 'The Legal Profession' Gone the Way Of the Dodo?" is the second.
Posted by Marcia Oddi on November 30, 2007 02:21 PM
Posted to General Law Related
Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)
For publication opinions today (3):
In Robert Thompson, et al. v. Vigo County Board of County Commissioners , a 12-page opinion, Judge Riley writes:
Thompson raises two issues on appeal which we restate as follows: (1) Whether the trial court erred by granting Vigo County’s Motion to Dismiss because Count I of Thompson’s Complaint should be certified as a public lawsuit, subject to the provisions of Indiana’s Public Lawsuit Statute; and (2) Whether the trial court erred by granting Famco’s and Gibson’s Motion to Dismiss because Count II of Thompson’s Complaint cannot be sustained under the statutory antitrust violations. * * *Paternity of A.R.S.A.; Alberto S. Meneses v. Rudit A. Legunes - "Based on the foregoing, we conclude that the trial court properly ordered Meneses to reimburse Medicaid for fifty percent of the medical expenses incurred during the birth of his son, pursuant to Ind. Code § 31-14-17-1. We further conclude that I.C. § 31-14-17-1 does not violate the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment of the United States Constitution."Requesting us to strictly construe the statute at issue, Thompson now argues that the swap or exchange of real estate between Famco and Vigo County cannot be characterized as the “construction, financing or leasing of any public improvement.” See I.C. § 34-6-2-124. Consequently, he maintains that the trial court erred by imposing the statutory provisions of a public lawsuit on the instant cause. * * *
Thompson next contends that the trial court erred in dismissing his claim against Famco. Specifically, Thompson argues that Famco colluded with Vigo County by engaging in a scheme geared to restrain bidding and restrict free competition in violation of I.C. §§ 24-1-2-3 and 24-1-2-7. Asserting that the Notice to Offer was unduly restrictive as to ensure only Famco satisfied its requirements, Thompson was excluded from the bidding process. As a result, he had to purchase additional property and erect buildings to expand his business. * * *
Based on the foregoing, we conclude that the trial court properly granted Vigo County’s Motion to Dismiss because Count I of Thompson’s Complaint should be certified as a public lawsuit, subject to the provisions of the Public Lawsuit Statute; and the trial court properly granted Famco’s and Gibson’s Motion to Dismiss because Count II of Thompson’s Complaint cannot be sustained under the statutory antitrust violations.
In Surfware, Inc., et al. v. Allied Specialty Precision, Inc. , a 9-page opinion, Judge Riley writes:
The Appellants raise one issue on interlocutory appeal: Whether the trial court properly denied the Appellants’ Motion to Dismiss or in the Alternative Transfer by finding that St. Joseph County constituted a county of preferred venue pursuant to Ind. Trial Rule 75(A)(2). * * *NFP civil opinions today (5):The Appellants aver the trial court incorrectly concluded that St. Joseph County is a preferred venue pursuant to T.R. 75(A)(2). Specifically, the Appellants argue the geographic location of the chattel is not the controlling factor in determining venue under T.R. 75(A)(2), and therefore basing venue on the location of the chattels would undermine T.R. 75(A)(1), (3), (4), and (10). * * *
The Appellants knew Allied was located in St. Joseph County. Schaumberg traveled to St. Joseph County to install the software and when he was unable to properly install the software, he never returned to update the software and train Allied’s employees. Allied did not try to use the software in a third county and file in St. Joseph County claiming it is a county of preferred venue, or keep the software in a third county and file its lawsuit there. Rather, as the trial court notes, “by analogy to automobile accident cases, St. Joseph County is the county in which the ‘accident’ and the resulting damages occurred.” (Appellant’s Br. p. 12). Thus, pursuant to R & D Transport, St. Joseph County is a county of preferred venue.
Second, although the Appellants rely on Burris v. Porter, 477 N.E.2d 879 (Ind. Ct. App. 1985), as a case directly on point with this case, our research reveals Burris has been expressly rejected by this court. * * *
Based on the foregoing, we find the trial court properly denied the Appellants’ Motion to Dismiss or in the Alternative Transfer venue to Boone County as St. Joseph County is also a county of preferred venue pursuant to T.R. 75(A)(2). Affirmed.
In Christopher Cornett v. Everett and Mary Bamish (NFP), a 10-page opinion, Judge Riley writes:
Cornett presents one issue on appeal, which we restate as follows: Whether the trial court properly applied a six-year statute of limitations to Cornett’s action. * * *Matter of the Involuntary Termination of the Parent-Child Relationship of C.T. and I.M.-T.; Wayne Turner v. Marion County Department of Child Services and Child Advocates, Inc. (NFP) - "Based on the overwhelming evidence in this case, we conclude that the trial court’s finding regarding the racial statement made by Turner is superfluous and that any error in considering it is harmless. The trial court properly terminated Turner’s parental rights."In 2003, Cornett and Everett Bamish noticed flooding of Cornett’s property and erosion damage. Cornett attributes flooding of his property and erosion damage to the actions by the Bamishes.
On May 19, 2005, Cornett filed a complaint in Montgomery County seeking damages and equitable relief. On December 12, 2006, the Bamishes filed a Motion for Summary Judgment arguing primarily that Cornett failed to commence the action within the applicable statute of limitations. On January 31, 2007, the trial court applied the six-year statute of limitations codified at I.C. § 34-11-2-7(2) to Cornett’s action, found that it had run prior to Cornett’s commencement of the action and granted the Bamishes summary judgment. * * *
When analyzing the record before us, we find that the trespass of the pipe and the injuries from the flooding must be considered separately. We find that the trespass of the pipe itself is a permanent injury for which Cornett did not satisfy the six-year statute of limitations. Therefore, we conclude the trial court appropriately awarded summary judgment to the Bamishes on Cornett’s claim for damages caused by the trespass of the pipe.
However, the injuries of erosion and flooding are injuries separate and distinct from the trespass of the pipe itself. We cannot tell from the record whether those injuries are permanent or temporary. The record contains only that the erosion and flooding was first noticed in 2003, six years after the installation of the pipe. Moreover, the pipe was placed so that it would drain into an existing waterway on Cornett’s property. There is no evidence in the record that Cornett knew or should have known that the pipe would cause erosion or flooding prior to 2003. Even if the injuries of flooding and erosion are permanent injuries, we find that they were first noticed in 2003, within six years prior to when Cornett filed his complaint addressing those injuries. Thus, we conclude that Cornett has satisfied the statute of limitations for addressing the injuries of flooding and erosion to his property.
Conclusion. For the foregoing reasons, we conclude that Cornett has satisfied the appropriate twenty-year statute of limitations to bring his equitable claim, has satisfied the six-year statute of limitations to bring a claim for damages to address the injuries of flooding and erosion, but has not satisfied the statute of limitations to bring a claim for damages to address the trespass of the pipe. Reversed and remanded.
Matter of M.S.; Jayne Boudia and Robert Shoulders v. Marion County Department of Family & Child Services and Child Advocates, Inc. (NFP) - "Based on the foregoing, we conclude that the DCS failed to prove beyond a preponderance of the evidence that M.S. is a CHINS as to Mother and Father. Accordingly, we reverse the trial court’s CHINS determination as to both parents. Reversed." [ILB - See also the opinion concurring only in result.]
Cloverleaf Healthcare Services, Inc., Wanda Prock, Theodore E. Bruzas, et al v. Boonville Convalescent Center, Inc., et al (NFP) - "Cloverleaf Healthcare Services, Inc., its shareholders, and their spouses, appeal the trial court’s determination of the extent of their liability to their landlord, Boonville Convalescent Center, Inc. Boonville cross-appeals. We affirm in part, reverse in part, and remand."
Term. of Parent-Child Rel. of P.F. & S.F., and Courtney Frierson v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP) - "Courtney Frierson (“Father”) appeals the termination of his parental rights to his daughters, P.F. and S.F., in Marion Superior Court. In so doing, Father raises several issues which we restate as whether the trial court’s order terminating Father’s parental rights to P.F. and S.F. is clearly erroneous. We affirm."
NFP criminal opinions today (9):
James R. Shelton v. State of Indiana (NFP)
Steven Kiser v. State of Indiana (NFP)
Eric Leo Armstrong, IV v. State of Indiana (NFP)
Don E. Tiffin, Jr. v. State of Indiana (NFP)
William Jackson v. State of Indiana (NFP)
Matthew Easterling v. State of Indiana (NFP)
Juan Lizaragga v. State of Indiana (NFP)
Charles Long v. State of Indiana (NFP)
Donald E. Jones v. State of Indiana (NFP)
Posted by Marcia Oddi on November 30, 2007 12:52 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Court grants transfer in two cases
The formal transfer list will follow later today, but the ILB has received notice of two cases having been granted transfer:
Christopher Brown, D.D.S, Inc. v. Decatur County Memorial Hospital , issued by the COA on August 9th, raised one question on appeal: Whether prejudgment interest is available for belated payments to health care providers for services rendered under the Worker’s Compensation Act.
In Alan Jones v. State, issued by the COA on Sept. 21st, the COA ruled:
Given the potential for very serious probation violations, we find that trial courts should have discretion to consider assigning sexually violent predator status when considering probation violations and determining the sentence to be imposed for such violations. We conclude that the plain language of the statute here does not limit the consideration to the initial sentencing hearing, and Jones’s arguments to the contrary must fail.
Posted by Marcia Oddi on November 30, 2007 12:42 PM
Posted to Indiana Transfer Lists
Ind. Courts - Schedule set for COA Second Round Interviews
The Indiana Judicial Nominating Commission has announced that it selected seven of the fifteen applicants for the upcoming vacancy on the Indiana Court of Appeals to return on December 12, 2007 for second interviews.
The seven semi-finalists are:
* Hon. Elaine B. Brown, Dubois Superior Court
* Hon. Jane Spencer Craney, Morgan Superior Court 3
* Mr. Stephen J. Johnson, Executive Director, Indiana Prosecuting Attorneys Council
* Mr. Leslie C. Shively, Evansville
* Hon. P. Thomas Snow, Wayne Superior Court 1
* Sen. Brent E. Steele, Bedford
* Hon. G. Michael Witte, Dearborn Superior Court
The interviews on December 12, 2007 will be open to the public in room 319, Statehouse. The Commission will nominate to the Governor the three most highly qualified candidates. Within sixty days after the formal nomination, the Governor will appoint one of the nominees to succeed Judge John Sharpnack, who is retiring May 3, 2008 after nearly 17 years on the Court of Appeals.
Here is the schedule:
• 9:00 a.m. – 9:20 a.m. – Hon. G. Michael WitteMore about the Judicial Nominating Commission:
• 9:25 a.m. – 9:45 a.m. – Sen. Brent E. Steele
• 9:50 a.m. – 10:10 a.m. – Hon. Elaine B. Brown
• 10:15 a.m. – 10:35 a.m. – Hon. P. Thomas Snow
(Break)
• 10:50 a.m. – 11:10a.m. – Hon. Jane Spencer Craney
• 11:15 a.m. – 11:35 a.m. – Mr. Stephen J. Johnson
• 11:40 a.m. – 12:00 p.m. – Mr. Leslie C. Shively
(Break – Lunch)
• 1:30 p.m. – Deliberations in Executive Session followed by public session and vote to name three nominees for vacancy
The Judicial Nominating Commission recruits and interviews applicants to fill vacancies on the Supreme Court, the Court of Appeals, and the Tax Court, and the Governor appoints one of the Commission's three nominees for each vacancy. Additionally, the Nominating Commission selects the Chief Justice of Indiana from among the five Justices on the Indiana Supreme Court. Finally, the Nominating Commission certifies former Indiana judges as Senior Judges to serve in Indiana 's courts.
Who is on the Nominating Commission?
Chief Justice Randall T. Shepard, Chair, Indiana Supreme Court, Indianapolis
Stephen L. Williams, Esq., First District, Terre Haute
Joan M. Hurley, First District, Sellersburg
James H. Young, Esq., Second District, Indianapolis
Mark Lubbers, Second District, Indianapolis
Sherrill Wm. Colvin , Esq., Third District, Fort Wayne
Dr. Daryl R. Yost, Third District, Fort Wayne
(ILB - Unfortunately, the online list no longer includes information about term beginnings and ends for the Nominating Commission membership.)
Posted by Marcia Oddi on November 30, 2007 12:24 PM
Posted to Indiana Courts
Ind. Courts - "Justices hear appeal in Griffith slayings"
Oral arguments in David Green v. State were previewed in this ILB entry Monday. Today Patrick Guinane of the NWI Times has a report on the oral arguments. Some quotes:
INDIANAPOLIS | Attorneys for a Griffith man convicted of murdering his wife and unborn son three years ago asked the Indiana Supreme Court on Thursday to cut the killer's 90-year sentence in half or order a new trial.The latter could put the death penalty back in play for David Green, who received consecutive 45-year prison terms last year for beating, strangling and stabbing Stacy Green in their Griffith home on Nov. 2, 2004. The Greens had been estranged for nearly two years, but Stacy was just days away from delivering the couple's third child.
David Green, 32, had not been charged when he gave prosecutors a statement that is at issue in his appeal. Green admitted to having a fight with his wife, but he said she attacked him with a knife and her death was accidental.
Lake County prosecutors agreed not to pursue the death penalty in exchange for the statement, which later was presented to the jury over Green's objections. But David Green's attorneys told the Supreme Court the pretrial statement -- placing him at the crime scene -- should have been treated like a plea agreement, making it inadmissible at trial.
Posted by Marcia Oddi on November 30, 2007 12:19 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Law - More on: Because of two conflicting laws, Lake County Councilman Will Smith Jr. on council until sentencing
Updating this ILB entry from Nov. 29th, Patrick Guinane of the Gary Post Tribune writes today:
INDIANAPOLIS | A region legislator has begun work to correct a defective state law that has allowed Lake County Councilman Will Smith Jr. to remain in office two months after being found guilty of tax fraud.A 2005 law was inspired by a trio of East Chicago officials who refused to step down after their conviction in the infamous sidewalks-for-votes scandal. It was intended to force politicians out of office as soon as they're found guilty of a felony. But another measure that went on the books that year contained contradictory language that has left prosecutors powerless to remove Smith.
State Sen. Frank Mrvan, who sponsored the ill-fated 2005 law, said Thursday he has spent the past two weeks drafting legislation to fix the problem. The Hammond Democrat said there's no reason to allow tarnished politicians to stick around, collecting salary and benefit, while they're waiting to be sentenced.
"It's the same old nonsense that happened in 2005, with the East Chicago people," Mrvan said. "I'm just angry. It's not fair that someone else found guilty is going to continue (in office). He forfeited that right when he became a felon and he stole from the poor. And he should not stay in office while he's waiting for sentencing." * * *
The legality of Smith's continued service has come under increased scrutiny as the County Council prepares for a final vote to impose a local income tax. Smith, who supports the 1 percent tax, said county attorneys have assured his vote would withstand a lawsuit.
"I'm not sitting here illegal. And all of the action that I undertake and my vote, from the council's standpoint, is legal action," he said. "There's no way that the attorneys that represent (Lake County) -- Ray Szarmach and John Dull -- are going to allow that to happen if it wasn't factual."
State Sen. Frank Mrvan, D-Hammond, is drafting legislation that will force elected officials to resign as soon as they are found guilty of a felony. He sponsored a similar measure in 2005 but it was canceled out by another law that allows felons to stick around until sentencing. The conflict in state law has allowed Lake County Councilman Will Smith Jr. to remain in office despite being found guilty of tax fraud in late September.
Posted by Marcia Oddi on November 30, 2007 11:46 AM
Posted to Indiana Law
Courts - SCOTUS hears arguments in Rowe v. NH Motor Transport
The SCOTUS heard oral arguments yesterday in Rowe v. NH Motor Transport, a case with potential Indiana impact. Here is the SCOTUSBlog entry and their Wiki page on the case, which states the issue as:
Does the Federal Aviation Administration Authorization Act of 1994 preempt state regulation of carriers that deliver shipments of tobacco and other products? Can a state require shippers of tobacco products to use a carrier that will obtain a signature and verify the age of the person receiving the shipment, in order to keep dangerous items out of the hands of minors? The Supreme Court will hear argument on these questions on November 28, 2007, in Rowe v. New Hampshire Motor Transport Association, No. 06-457. This clash between federal preemption and the public health police powers of states will determine whether states can use delivery regulations to block Internet sales of tobacco to teens.Tom Walker of WTHR Eyewitness News has a brief piece on the case, here.
David G. Savage of the LA Times reports today in a story that begins:
WASHINGTON -- The Supreme Court took up a little-noted case Wednesday that could prove a boon in the era of Internet commerce -- and deal a setback to states' efforts to keep cigarettes, drugs and other harmful products out of the hands of minors.Until the last decade, states restricted sales of certain products by regulating the sellers. For example, retailers were banned from selling cigarettes to those under age 18.
But cigarettes, like nearly every other product, now can be bought over the Internet and sent directly to the consumer, which means the seller cannot verify the age of the purchaser. The number of Web vendors of cigarettes rose from 88 in 2000 to 772 early last year, according to the California attorney general's office.
As a fallback, states increasingly have turned to shippers and delivery services, such as UPS or FedEx, and said they must see to it that certain products, including tobacco, are delivered only to adults, not minors. Maine, for example, adopted a law requiring shippers who deliver tobacco products to obtain a signature from an adult and see a government-issued identification card.
But Bush administration lawyers joined the trucking industry Wednesday in urging the high court to throw out Maine's law and to shield shippers from all such state regulation of delivery services. This would speed the flow of Internet sales and reduce costs, they said.
Posted by Marcia Oddi on November 30, 2007 11:18 AM
Posted to Courts in general
Environment - "BP Alleged to Have Modified Whiting Refinery Illegally"
A release from the Environmental News Service today begins:
CHICAGO, Illinois, November 29, 2007 (ENS) - The federal government today formally notified BP Products North America Inc. of alleged violations of multiple Clean Air Act requirements at its refinery in Whiting, Indiana, near Chicago.The NWI Times also has a brief story today.The U.S. Environmental Protection Agency Region 5 alleges that the BP Whiting refinery, failed to obtain a permit when it made "major modifications" to its fluidized catalytic cracking unit.
A fluidized catalytic cracking unit converts heavier oils into lighter products such as gasoline and naphtha. The modifications were made in BP's pursuit of the capacity to handle more Canadian heavy crude oil by modernizing the refinery located at 2815 Indianapolis Blvd.
The unpermitted modification caused "significant increases" of nitrogen oxide, NOx, sulfur dioxide, SO2, particulate matter, PM10, and carbon monoxide, CO, emissions, says the federal agency.
The agency also claims that BP violated New Source Performance Standards at Whiting by modifying flares without complying with requirements, exceeding SO2 emission limits, and failing to monitor emissions from several sources.
These New Source Performance Standards regulate new and modified industrial facilities that contribute to air pollution.
Finally, BP is accused of failing to conduct timely performance tests of hydrogen chloride emissions from its catalytic reforming units.
BP has 10 days to request a conference to discuss these clean air violations.
At the same time it is being notified of these violations, the company is proposing to lower air emissions limits at the Whiting Refinery.
Posted by Marcia Oddi on November 30, 2007 10:06 AM
Posted to Environment
Ind. Decisions - "Supreme Court reduces ex-Muncie man's sentence"
Reporting on the Supreme Court's Nov. 28th decision in In Aaron Reid v. State of Indiana (ILB entry here), a story today in the Muncie Star Press begins:
ANDERSON -- The Indiana Supreme Court this week provided an early Christmas gifts of sorts for convicted felon Aaron D. Reid -- trimming his 2006 sentence for trying to arrange the slayings of his wife and mother-in-law from 50 to 30 years.Reid, now 24, was being held in the Madison County jail on misdemeanor battery charges in January 2006 when he asked other inmates whether they knew someone who would be willing to kill his wife.
An inmate put him in touch with a Madison County police deputy who posed as a hit man. After a phone conversation, Reid sent the deputy a photograph of his wife and their infant daughter, along with a description of her vehicle and directions to her home in Parker City.
The former Muncie resident also hoped to have his mother-in-law killed, authorities said.
A Madison Superior Court 3 jury found Reid guilty of conspiracy to commit murder in March 2006. The following month, Judge Thomas Newman Jr. imposed a maximum 50-year sentence, despite pleas for leniency for Reid's wife, who said her husband needed "constant counseling," not a lengthy prison term.
In a 5-0 ruling released Wednesday, the Indiana Supreme Court ordered Newman to reduce Reid's prison term to 30 years, the standard sentence for a class A felony conviction.
"If the facts had really been as Reid perceived them, his wife and mother-in-law would have been murdered," Chief Justice Randall Shepard wrote in the opinion. "Still, considering all the circumstances, we cannot say Reid is one of the worst offenders deserving of the maximum sentence."
Shepard suggested Reid's "mental health problems may have made him an easy target" to become involved in the bogus murder-for-hire scheme with his fellow inmate-turned-informant and the undercover officer.
Posted by Marcia Oddi on November 30, 2007 09:48 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Gov't. - Even more on: "Terre Haute Mayor Kevin Burke has thrown opponent Duke Bennett’s eligibility to be mayor into question"
Updating this ILB entry from Nov. 28th, about the Terre Haute mayoral challenge suit, where the Ann and Ed DeLaney Indianapolis law firm represents the challenger, and James Bopp, Jr. represents Mayor-elect Duke Bennett, Austin Arceo reports in the Terre Haute Trib-Star:
TERRE HAUTE — Although a local judge set a date Thursday to hear a challenge in the city’s mayoral race results, the Indiana Supreme Court may prevent that from ever happening.Here is an AP story, based on Trib-Star information:Judge David Bolk of Vigo County Superior Court Division 3 set the trial for 1:45 p.m. Dec. 17 for Mayor Kevin Burke’s challenge of the election he lost to Mayor-elect Duke Bennett. Bolk also said the recount will start at 9 a.m. Monday.
But James Bopp Jr., Bennett’s attorney, on Thursday afternoon filed two mandate actions with the Indiana Supreme Court to overrule Bolk. Bolk earlier this week denied Bopp’s motions to dismiss Burke’s recount and election challenge petitions. Bopp had asked for the dismissal since the petitions left out Bennett’s middle initial, thus did not meet the legal requirement of having the candidate’s name as listed on the ballot.
“It’s fatal to the case because it’s jurisdictional,” Bopp said. “The court does not have jurisdiction over this matter unless it’s properly done.”
TERRE HAUTE, Ind. (AP) -- An attorney is asking the Indiana Supreme Court to overrule a judge who ordered a recount and a trial on a challenge in Terre Haute's mayoral race. * * *Bennett's attorney, James Bopp Jr., this week asked Bolk to throw out the recount request and the election challenge on a technicality.
Bopp argued that the paperwork did not include Bennett's full name - including his middle initial - as it appeared on the ballot as required by law. But Bolk denied his motions, and Thursday Bopp asked the state Supreme Court to intervene.
"It's fatal to the case because it's jurisdictional," Bopp said. "The court does not have jurisdiction over this matter unless it's properly done." * * *
Attorney Ed DeLaney, who represents Burke, said that Bennett's side doesn't want a recount or challenge, "and they want to stop Judge Bolk from doing that over the letter 'A.'"
"They do not want to ever explain how Mr. Bennett complied with the Hatch Act," DeLaney said. "There is no circumstance under which they are willing to answer that question."
Posted by Marcia Oddi on November 30, 2007 09:34 AM
Posted to Indiana Courts | Indiana Government
Thursday, November 29, 2007
Ind. Decisions - More on: Supreme Court issues confusing ruling re Mental Illness and Competency to be Executed
More on the Supreme Court's opinion yesterday in the case of Michael Dean Overstreet v. State of Indiana, a 46-page opinion authored by Justice Rucker for the majority, which, as the ILB observed in its summary Nov. 27th, is "somewhat split." This split is indicated on p. 41, and, on pp. 38-40, when the discussion of the majority opinion turns to the VI-B, the state constitutional claim, the "majority" language becomes that of a minority opinion.
A knowledgeable reader writes in agreement:
I've never seen anything like Overstreet.After hearing oral argument, the court meets in conference and tentatively votes. The case is then assigned to a justice in the majority by consensus. I can't believe it wasn't clear at conference that Justice Rucker would not be in the majority. He has long opposed the death penalty for those with a severe mental illness; no other Justice has expressed that same concern. Therefore, the case should have been assigned to one of the four justices in the majority.
A one-justice lead opinion (complete with "I"s) is very confusing. I feel sorry for the attorney at West who must write headnotes for it. The lead opinion needs to announce the result, even if the dissenting justices announce the rationale or applicable rule of law.
Posted by Marcia Oddi on November 29, 2007 04:07 PM
Posted to Ind. Sup.Ct. Decisions
Law - More on "Georgia's top court overturned a state law Wednesday that banned registered sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate"
Updating this ILB entry from November 21st, Laura Bauer of the Kansas City Star reports today under the headling "Georgia ruling on sex offenders prompts other states, including Missouri, to re-examine laws." The story begins:
A Georgia Supreme Court ruling has refueled the debate on whether states should restrict where sex offenders live.As noted in the earlier entry, Indiana has at least one similar case pending at the trial level. See this August 19th ILB entry for the most recent info the ILB has.The Georgia court struck down its residency restrictions last week, giving opponents of such buffer zones hope that other state laws will be reviewed and possibly overturned.
“It certainly sends a message that creating laws that render people homeless is not in anybody’s best interest,” said Jill Levenson, a professor at Florida’s Lynn University who has done extensive studies on the effect of residency restrictions. “In theory, I believe this could pave the way for a U.S. Supreme Court case.”
At least 21 states — including Missouri — have laws that ban registered sex offenders from living within a specified distance of schools, day-care centers and in some cases parks, swimming pools and bus stops. After high-profile child abductions and sexual assaults, parents across the nation fought for the buffer zones, urging lawmakers to protect their children from sexual predators.
Some authorities think the laws, if properly enforced, are helpful.
“I do think there’s an increased danger if a sex offender is in close proximity to children that they’ll re-offend,” Platte County prosecutor Eric Zahnd said. “Many are pedophiles in the truest sense of the word.”
But for the past three years, opposition to residency restrictions has grown. Opponents say buffer zones create a false sense of security for parents because offenders are restricted only in where they live, not in where they go. Also, Levenson said, in the vast majority of cases children know their molesters.
“They’re not strangers lurking in schoolyards,” she said.
Opponents also say that residency restrictions lead many offenders to stop registering, which they are required by law to do; become homeless; or move to rural areas where they can’t be easily tracked.
In Iowa, where courts have upheld the buffer zones, authorities estimate that they have lost track of many offenders and say it will only get worse. That’s why Georgia’s ruling was “monumental,” said Corwin Ritchie of the Iowa County Attorneys Association.
“When these laws were first bantered about, they sold an awfully convincing bill of goods, that they are awfully good safety measures,” Ritchie said. “I think in Georgia they are seeing the full impact of the unintended consequences and saying this is not constitutional.”
[Thanks to How Appealing for the link to the Kansas City Star story today.]
Posted by Marcia Oddi on November 29, 2007 03:55 PM
Posted to General Law Related
Ind. Law - Because of two conflicting laws, Lake County Councilman Will Smith Jr. on council until sentencing
John Byrne of the Gary Post-Tribune reports today:
Convicted felon and Lake County Councilman Will Smith Jr. appears to be on firm legal ground in his bid to stay on the council until he is sentenced for federal income tax evasion.Another Will Smith related story today in the Gary paper, this one by Jon Seidel and headlinedIndiana Attorney General Steve Carter and Lake County Prosecutor Bernard Carter announced Wednesday that state law does not empower them to force Smith to step down in advance of his sentencing, scheduled for Jan. 9.
The two officials instead resorted to appealing to the ethical and moral standards of Smith and his colleagues on the council, imploring them to do what's best for their reputations and that of the county by having the embattled legislator resign now.
"We're asking them to reach a little higher than the minimum ... legal standard," Steve Carter said.
Bernard Carter concurred. "I certainly would recommend that. I think the right thing to do would be to step down, yes," he said.
Smith, D-Gary, was not available to comment Wednesday. But he has said recently he plans to stay on the council until sentencing, contending his constituents and colleagues support the decision.
And there isn't any way for Smith's fellow council members to force him out, Bernard Carter said.
In the wake of Smith's September conviction for his part in a land fraud scheme, Steve Carter believed state law mandated the councilman step down immediately.
But further analysis revealed two conflicting statutes -- one ordering public officials to leave office upon conviction of felonies, the other allowing them to stay until sentencing -- both of which were signed into law May 4, 2005.
"Attorney to replace convicted colleague":GARY -- Attorney Clorius Lay will fill a void left in the city of Gary's law department by the conviction of his colleague, Willie Harris.
Lay's 13-month contract with the city was approved by the Board of Public Works and Safety on Wednesday. It runs Dec. 1 through Dec. 31, 2008.
City Controller Celita Green said Lay will receive no more than $36,000 for his work in the law department.
Hamilton Carmouche, the city's corporation counsel, said at the meeting that Lay is filling a vacancy, and the money for his contract is already in the city budget.
Afterward, Carmouche said Harris' $20,000 contract has not been terminated because of his involvement with pending litigation.
The contract is scheduled to expire at the end of this year. Harris has been an attorney for the city since April 2006, when Mayor Rudy Clay took office.
Harris was convicted in September of fraud while on trial with Roosevelt Powell and Lake County Councilman Will Smith.
Posted by Marcia Oddi on November 29, 2007 03:42 PM
Posted to Indiana Law
Ind. Courts - "Consumers file lawsuit against two Merrillville collection agencies"
Erik Potter of the Gary Post-Tribune reports:
A pair of Merrillville debt collection companies are facing a class-action lawsuit in federal court for allegedly violating federal debt collection law.The suit was filed Tuesday by Donna Ketchem on behalf of herself and 50 other Indiana consumers against American Acceptance Co., and the law firm of Bowman Heintz Boscia & Vician Professional Corp., both located at the corner of 86th Avenue and Broadway in Merrillville.
The Bowman Heintz Boscia & Vician offices were closed Wednesday, and messages left at American Acceptance Co. were not returned.
The suit claims both businesses are owned by the same people, with American Acceptance Co. purchasing delinquent debt from credit card companies and turning it over to Bowman Heintz Boscia & Vician to pursue collection in court.
The 50-plus members of the suit claim that American Acceptance Co. was misleading when it threatened to charge consumers the legal fees it incurred in collecting their debt, because it was not legally able to collect those fees.
Many major credit card companies, including Citibank, Capital One, Wells Fargo and MBNA (now FIA Card Services), prohibit collection agencies from collecting in-house attorney's fees.
The suit claims that, given the "substantial identity of interest" between American Acceptance Co. and Bowman Heintz Boscia & Vician, that the firm functions like an in-house firm and falls under the same rules.
Posted by Marcia Oddi on November 29, 2007 03:33 PM
Posted to Indiana Courts
Ind. Decisions - "Mentally ill man can be executed "
Reporting on the Supreme Court's decision yesterday in the case of Michael Dean Overstreet v. State of Indiana [see ILB entry here], Charles Wilson of the AP writes:
The Indiana Supreme Court has upheld the death sentence for a mentally ill man convicted in the 1997 abduction, rape and slaying of a Franklin College student -- but with reservations.Attorneys for Michael Dean Overstreet had argued that his severe mental illness at the time he was convicted of killing Kelly Eckart would make his execution cruel and unusual punishment under the state constitution.
Justice Robert Rucker, who wrote the opinion issued Tuesday, agreed.
Rucker said that the 41-year-old Overstreet's mental illness impeded his thought processes to a point comparable with mental retardation. The U.S. Supreme Court has ruled that mentally retarded people are ineligible for the death penalty, and Rucker wrote that he believed Indiana's constitution offered even greater protection.
"Because I see no principled distinction between the diminished capacities exhibited by Overstreet and the diminished capacities that exempt the mentally retarded from execution, I would declare that executing Overstreet constitutes purposeless and needless imposition of pain and suffering thereby violating the Cruel and Unusual Punishment provision of the Indiana Constitution," Rucker wrote in the 46-page opinion.
"Therefore, I would remand this cause to the post-conviction court with instructions to impose a sentence of life imprisonment without parole."
However, the other four justices disagreed with Rucker and held that Overstreet was eligible for the death penalty.
All five justices agreed to uphold Johnson Superior Court's handling of Overstreet's case, dismissing other arguments including that Overstreet had had ineffective counsel.
No evidence of Overstreet's mental illness was presented during his trial, though he had been diagnosed. The defense instead tried to prove that someone else had killed Eckart.
Posted by Marcia Oddi on November 29, 2007 03:27 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Supreme Court holds post-secondary educational orders may include medical expenses for the student
In Michael M. Cubel v. Debra A. Cubel, a 5-page, 5-0 opinion, Chief Justice Shepard writes:
The legislature has authorized trial courts to enter orders providing parental assistance for college students, and it has indicated that such orders may extend beyond age twenty-one, the general cut-off for child support obligations. Appellant Michael Cubel argues that such post-secondary educational orders may not include medical expenses for the student. We hold that the Indiana Code authorizes orders covering these expenses. * * *In this case, we are asked to determine whether the General Assembly intended the child support statutes to include insurance coverage for children during college, in accordance with the Schueneman holding, or whether it did not intend to provide for a child’s health care costs beyond age twenty-one regardless of whether the child is attending college, in accordance with the Sebastian holding. * * *
To the extent there is a conflict in the case law, we hold that a post-secondary educational order may include medical, dental, and optical insurance costs, as well as other health care costs, where the court finds such costs appropriate. As with all payments in post-secondary educational orders, payment of insurance and health care costs must be contingent upon the child remaining enrolled in a post-secondary educational institution. When fashioning the order, the court must consider the child’s aptitude and ability, the child’s reasonable ability to contribute to such expenses, and the ability of each parent to meet these expenses.
Posted by Marcia Oddi on November 29, 2007 03:21 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)
For publication opinions today (1):
In Shafer & Freeman Lakes Environmental Conservation Corp. v. Justin and Corraine Stichnoth, a 19-page opinion, Judge Najam writes:
Shafer & Freeman Lakes Environmental Conservation Corporation (“Shafer”) appeals from the trial court’s judgment in favor of Justin and Corraine Stichnoth (collectively “the Stichnoths”) on their complaint alleging negligence. Shafer presents four issues for our review: 1. Whether the trial court erred when it denied Shafer’s summary judgment motion on the issue of whether Justin was a licensee when he dove into Lake Shafer [ILB - from p. 9: "While most visitors to those lakes may reach the water from private property, that fact alone does not convert a lake otherwise held open for public use into a private lake."] . 2. Whether the trial court abused its discretion when it denied Shafer’s motion to bifurcate the trial. 3. Whether the trial court abused its discretion when it permitted expert testimony regarding Justin’s impaired earning capacity. 4. Whether the trial court abused its discretion when it denied Shafer’s motion to withdraw its nonparty defense. We affirm.NFP civil opinions today (5):
In Termination the Parent-Child Relationship of D.J., K.P. and K.R.; Teffany Reaves v. Marion County Department of Child Services (NFP), an 11-page opinion, Judge Bradford writes:
Appellants-Respondents Kevin and Teffany Reaves (the “Reaveses”) appeal the juvenile court’s order involuntarily terminating Teffany’s parental rights to K.P., D.J., and K.R. (“the children”) and Kevin’s parental rights to K.R.1 Specifically, the Reaveses claim that the Marion County Department of Child Services (“DCS”) did not present sufficient evidence to support the juvenile court’s order terminating their parental rights. Alternatively, they claim that DCS negligently provided them with services, thus impeding their ability to re-acquire custody of their children. We conclude that the sua sponte findings entered by the juvenile court hinder effective appellate review and therefore remand this matter to the juvenile court for the entry of further findings and conclusions thereon. * * *The termination of one’s parental rights is of such importance that we must be convinced that the juvenile court has based its judgment on proper considerations. Therefore, we conclude that the findings of the juvenile court and its recitation of statutory language as its conclusions thereon are such that we cannot make a determination as to the validity of the termination of the Reaveses’ parental rights. Accordingly, we remand to the juvenile court with instructions to enter factual findings that are fully supported by the evidence and to include an explanation as to how its factual findings support its judgment.
In Spring Lake Chapter of the Izaak Walton League of America, Inc. v. Indiana Division of the Izaak Walton League of America, Inc., Charles Siar and Emil Garcia (NFP), an 11-page, 2-1 opinion, concerns an Izaak Walton League dispute involving the national chapter and the Spring Lake and Indiana Dvision local chapters. Judge Bailey writes:
Spring Lake presents five issues for appeal, which we consolidate and restate as the following two issues: I. Whether summary judgment was properly granted in favor of the Indiana Division upon the malicious prosecution claim; and II. Whether summary judgment was properly granted in favor of the Indiana Division upon the abuse of process claim. * * *In Estate of Jerome Mintz v. Connecticut General Life Insurance Company and Wayne E. Gruber (NFP), a 21-page opinion, includes a good discussion of the "law of the case" doctrine and Judge Bailey writes:The grant of summary judgment upon the malicious prosecution claim is reversed. The grant of summary judgment upon the abuse of process claim is affirmed. Affirmed in part; reversed in part; and remanded.
VAIDIK, J., concurs.
BAKER, C.J., concurs in part and dissents in part with opinion.
This opinion addressed the legal issue of breach of contract. It did not address or resolve the outstanding legal issue of whether Gruber was negligent. Therefore, the language in the prior opinion is not the law of the case as to the negligence claim against Gruber. However, the trial court’s entry of summary judgment is sustainable on other grounds. * * *The Kroger Company v. Patricia K. Hammond (NFP), a 9-page opinion by Judge Robb, concludes: "In taking the cart from Hammond and moving it out of the way, Kroger failed to use ordinary care to protect Hammond’s personal property still in the cart. The record supports the small claims court’s conclusion that Kroger breached its standard of care." Judge Robb's summary:[As to bad faith, the Courte wrote] Without some evidence that the insurer’s actions departed from their normal routine or were deceitful, unfounded or fraudulent, a bad faith claim will not survive summary judgment. The trial court did not err in granting summary judgment in favor of Connecticut General.
Conclusion. Gruber’s actions were not the proximate cause of the Estate’s injuries and Gruber and Connecticut General were properly granted summary judgment on the Estate’s claims of negligence and vicarious liability. Connecticut General was also entitled to summary judgment for the remaining claim of bad faith because the Estate’s claim was essentially based on Connecticut General’s unwillingness to depart from its stated procedure and make an exception.
MAY, J., concurs.
SHARPNACK, J., concurs in part and dissents in part with [a 6-page] opinion. [which reads in part] A review of the facts most favorable to the Estate reveals that “Mintz told Gruber his health was failing and indicated his desire to convert the entire value of the group coverage to individual policies. Gruber told Mintz he would take care of ‘everything.’” In April 1995, Gruber mailed an application to Mintz to convert the $62,300 lost by the first reduction of group coverage into an individual policy. When Connecticut General informed Mr. Mintz that the check for the premium was incorrect, Mrs. Mintz spoke with Gruber who informed her that everything was fine and that she did not need to worry about anything. Gruber never sent the Mintzes an application for the second conversion nor did anything else to “take care of everything.” Based on the designated evidence, I cannot conclude, as a matter of law, that Gruber’s actions were not a proximate cause of the Mintzes’ injuries.
The Kroger Company (“Kroger”) appeals a small claims judgment against it and in favor of Patricia Hammond in the amount of $570.00. For our review, Kroger raises two issues, which we consolidate and restate as one: whether the small claims court’s judgment was contrary to law. Concluding that the small claims court’s determination that a bailment existed between Hammond and Kroger and that Kroger breached its standard of care as bailee is not clearly erroneous, we affirm.Invol. Term. of Parent-Child Rel. of O.E., S.E., and M.E., and Desirae Evans v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP) - "Concluding that the trial court acted within its discretion in denying Desirae’s motion for a continuance and that sufficient evidence supports the order, we affirm."
NFP criminal opinions today (3):
Gwendolyn Lewis v. State of Indiana (NFP)
Raymond J. Flack v. State of Indiana (NFP)
Jose Alfredo Brena v. State of Indiana (NFP)
Posted by Marcia Oddi on November 29, 2007 01:12 PM
Posted to Ind. App.Ct. Decisions
Wednesday, November 28, 2007
Ind. Decisions - Supreme Court issues one today
In Aaron Reid v. State of Indiana, a 5-page, 5-0 opinion, Chief Justice Shepard writes:
Appellant Aaron Reid, convicted of conspiracy to commit murder after collaborating with a police informant and an undercover officer, argues that his sentence is inappropriate. We revise his sentence from the fifty-year maximum imposed by the trial court to the thirty-year advisory sentence. * * *Given that no one was injured, both potential victims pleaded for leniency, and Reid had a history of mental health problems, it is inappropriate to order twenty-two year old Reid to serve fifty years. The advisory sentence of thirty years is more appropriate.
We direct the trial court to enter a sentence of thirty years executed time in the Indiana Department of Correction.
Posted by Marcia Oddi on November 28, 2007 04:07 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Court of Appeals issues 2 today (and 23 NFP)
For publication opinions today (2):
In State of Indiana v. Adam L. Manuwal, a 14-page, 2-1 opinion, Chief Judge Baker writes:
Today we have the occasion to decide whether the trial court correctly determined that a driver of an all terrain vehicle (ATV) should not be prosecuted for driving under the influence of alcohol on his own property pursuant to Indiana Code sections 9-30-5-1 and –2, the statutes governing the offense of operating a vehicle while intoxicated. When examining the relevant provisions, it is apparent that the State should have instead proceeded against Manuwal pursuant to Indiana Code section 14-16-1-23, the statute governing a defendant’s operation of an off-road vehicle while under the influence of an alcoholic beverage.Gerald A. Rickert v. State of Indiana - "Gerald A. Rickert appeals his conviction for Robbery While Armed with a Deadly Weapon,1 a class B felony, as well as his sentencing enhancement for being a habitual offender. Rickert presents the following restated issues for review: 1. Did the State present sufficient evidence to support his robbery conviction? 2. Did the trial court improperly sentence Rickert with respect to his habitual offender enhancement? We affirm."Appellant-plaintiff State of Indiana (the State) appeals the grant of appellee-defendant Adam L. Manuwal’s motion to dismiss—which Manuwal styled as a “verified petition for judicial review of probable cause and motion to suppress” (verified petition)—claiming that the trial court erred in concluding that Manuwal could not be prosecuted for Operating a Vehicle While Intoxicated Endangering a Person, a class A misdemeanor (OWI), on his own property. The State contends that prosecuting Manuwal for the alleged commission of the charged offense should proceed because the OWI statues make no distinction between operating a vehicle on private and public property. Concluding that Manual’s verified petition was properly granted, we affirm the judgment of the trial court. * * *
[U]nlike the OWI statutes—which require an operator’s license—there is no requirement that an individual must possess a driver’s license to operate an off-road vehicle on private property. For these reasons, we conclude that the trial court properly granted Manuwal’s verified petition because he was improperly charged under the general OWI statutes. The judgment of the trial court is affirmed.
BAILEY, J., concurs.
VAIDIK, J., dissents with opinion. [which begins] I respectfully dissent. First, although permissible, I find it problematic that the majority has created an argument on behalf of the defendant, completely altering the stated issue in this appeal. Second, after raising the issue of improper charging sua sponte, I believe that the majority improperly applies the law.
NFP civil opinions today (9):
Sebastian Chapman v. J. Mulroony, J. Pemberton, J. Hannish, and Lt. Brough (NFP) - "Sebastian Chapman is appealing a judgment in favor of various State prison officials regarding his claims for alleged civil rights violations under 42 U.S.C. Section 1983 (Section 1983)." Affirmed.
In Re: The Adoption of H.H.; Terry Hamrick v. Bradley Wright (NFP) - "Terry Hamrick (“Father”) appeals the trial court’s denial of his motion to correct error following its determination that his consent was unnecessary to the adoption of his daughter, H.H., by Bradley Wright (“Wright”). We affirm."
Marlan C. Bonds v. Carl Nelson Rutt, M.D. (NFP) - "Marlan Bonds, pro se, appeals an October 30, 2006 order dismissing his medical malpractice action. We affirm."
Dennis Hoffman, Eric Harvey, et al v. WCC Equity Partners, L.P., Eaton Excavating Inc., et al (NFP) - "Because the Neighbors did not provide the trial court with properly designated evidence supporting arguments in opposition to summary judgment, we cannot review the grant of summary judgment in favor of Benchmark and Eaton. Affirmed."
Traci C. Christensen v. J.R. Rumpza Chevrolet, Inc. (NFP) - "Traci D. Christensen appeals from the trial court’s judgment in favor of J.R. Rumpza Chevrolet, Inc. (“J.R. Chevrolet”), on her unpaid wage claim. We remand for more specific findings and for a ruling on the issue of J.R. Chevrolet’s allegedly improper withholding of Christensen’s health insurance premiums."
Max Stillwell v. Deer Park Management (NFP)
Sebastian Chapman v. Steve McCauley, Jayne Grimes, J. Mulroony, et al (NFP) - "Sebastian Chapman is appealing a judgment in favor of various State prison officials regarding his claims for alleged civil rights violations under 42 U.S.C. Section 1983 (Section 1983)." Affirmed.
In the Matter of A.M. V. State of Indiana (NFP) - "A.M. appeals his adjudication as a delinquent child for committing an act that, if committed by an adult, would constitute Child Molesting, as a class B felony." Affirmed.
Joel T. Boucher v. Huntington County Community School Corporation (NFP) - "We affirm the trial court’s grant of summary judgment in favor of Huntington because Boucher did not raise the issue of Huntington’s compliance with Indiana Code Section 20-28-7-2(c) at the hearing before the Board."
NFP criminal opinions today (14):
Terrie L. James v. State of Indiana (NFP)
Gregory Minor v. State of Indiana (NFP)
Wardell D. Wright v. State of Indiana (NFP)
Michael L. Erickson v. State of Indiana (NFP)
Jeffrey L. McNeil v. State of Indiana (NFP)
Charles Hardy v. State of Indiana (NFP)
Rodney Boatright v. State of Indiana (NFP)
Charles E. White v. State of Indiana (NFP)
Thomas Rayford v. State of Indiana (NFP)
Etakase Collins v. State of Indiana (NFP)
Tina Porter v. State of Indiana (NFP)
Juan Carlos Garcia v. State of Indiana (NFP)
Octavious D. Morris v. State of Indiana (NFP)
Kenneth D. Phoenix v. State of Indiana (NFP)
Posted by Marcia Oddi on November 28, 2007 12:51 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - 7th Circuit's case involving “'Pull My Finger Fred,' a farting plush doll," is back
The ILB reported on the "Pull My Finger Fred" case on March 20, 2007. Today the case, JCW INVESTMENTS, INC., d/b/a Tekky Toys, Plaintiff-Appellee v. NOVELTY, INC.. is back. In a 4-page opinion, Judge Diane P. Wood writes:
Tekky Toys won a jury verdict for $575,099.82 on its claim that Novelty, Inc., infringed Tekky’s copyright and trademark on “Pull My Finger Fred,” a farting plush doll; this court affirmed that judgment. See JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 921 (7th Cir. 2007). Thirty days after we entered judgment in Tekky’s favor, it filed a petition for attorneys’ fees, expenses, and costs in the district court. What is presently before us is the petition Tekky filed in this court for an award of appellate attorneys’ fees, expenses, and costs in the amount of $78,037.76.Ultimately Judge Woods decides:
To summarize, Tekky’s petition for costs [in the amount of $132.76] is DENIED, and Novelty is ORDERED to pay Tekky a total of $70,423.75 in attorneys’ fees.
Posted by Marcia Oddi on November 28, 2007 09:55 AM
Posted to Ind. (7th Cir.) Decisions
Law - Brooke Russell Astor and Anna Nicole Smith
The Brooke Astor estate dispute promises to become the stuff of trusts and estates casebooks, moving along-side the Anna Nicole Smith estate fight. (See this March 11, 2007 ILB entry titled "Anna Nicole Smith bankruptcy and estate issues become law school case studies.")
Today the NY Times has the kind of thing the ILB loves, a guide headed "The Astor Estate Dispute: A Chronology." It includes a chronology of the dispute, with links to the actual documents - the last will and testament of Brooke Russell Astor, and the three codicils.
And for those of you who have access to the Wall Street Journal ($$$, for now), here is a story today (p. D1) headed "How to Ensure Relatives Don't Rip You Off: Case of Astor's Son Highlights Risks of Powers of Attorney; Requiring Regular Accounts," by Rachel Emma Silverman and Ashby Jones. It begins:
Sadly, Brooke Astor is making headlines again. But there may be a lesson in the indictment of the late philanthropist's son and a lawyer close to the family's affairs: It can be risky to hand off financial responsibilities even to someone you think you can trust.Estate lawyers say older people are often making use of a tool known as a durable financial power of attorney. This legal document authorizes an agent -- usually a spouse, another family member, or a trusted adviser -- to make financial decisions if you become unable to make them yourself. But naming someone to take control over your money has the potential for serious abuse, and lawyers are increasingly devising strategies to help safeguard their clients.
Among the tactics: Lawyers are including provisions requiring regular accounting statements from agents. They also are naming co-agents who can serve as checks on each other, or naming a supervisor who has the power to fire an agent.
"People want to make sure when they sign the document that they do what they can to protect themselves," says Bernard A. Krooks, a lawyer with Littman Krooks in New York, who specializes in elder-law. "When the power of attorney takes over, you're usually no longer in a position to supervise it."
According to the indictment in the Astor case, made public yesterday in Manhattan, Ms. Astor's son, Anthony Marshall, abused his power of attorney in order to "unjustly enrich" himself and others. The indictment alleges that while his mother had diminished mental capacity, Mr. Marshall took works of art from her home and used her funds in a variety of ways: among them, to increase his salary, pay expenses related to a Maine property that Ms. Astor no longer used and pay the expenses of a yacht captain.
Posted by Marcia Oddi on November 28, 2007 09:02 AM
Posted to General Law Related
Ind. Gov't. - Still more on: "Terre Haute Mayor Kevin Burke has thrown opponent Duke Bennett’s eligibility to be mayor into question"
Updating this ILB entry from Nov. 20th, there are three stories today in the Terre Haute Trib-Star about the Terre Haute mayoral challenge suit, where the Ann and Ed DeLaney Indianapolis law firm represents the challenger, and James Bopp, Jr. represents Mayor-elect Duke Bennett.
An AP story is headlined "Missing initial may doom election challenge." A later story by Austin Arceo is headed "Judge grants recount in Terre Haute mayoral race: Judge David Bolk denies motions to dismiss recount and Burke challenge." A third story is headed "Depositions start Wednesday in Terre Haute mayoral challenge suit."
Posted by Marcia Oddi on November 28, 2007 08:42 AM
Posted to Indiana Government
Courts - Tennessee attorney is loser in Kentucky malpractice lawsuit
Andrew Wolfson has an interesting, an lengthy, story today in the Louisville Courier Journal that begins:
He has been called the lawyer "sued on both ends" -- losing lawsuits filed against him by his client and by the Louisville surgeon his client unsuccessfully sued.From a side-bar headed "Who is Dr. Dry?"As the Kentucky Trial Court Review put it, Tennessee attorney Laurence Dry was found on one hand to have botched a medical malpractice case "so good he couldn't lose it" and on the other hand to have filed a case "so bad he never should have taken it."
The paradoxical result is unprecedented in Kentucky, according to the presidents of both Kentucky Defense Counsel, which defends civil cases, and the Kentucky Justice Association, which represents plaintiffs.
"This must be the first time this has happened in the history of American law," said Louisville lawyer Gary Weiss, who represented another party in the cases.
Known as "Dr. Dry," Laurence Dry was a practicing surgeon for 24 years before he switched to law about 20 years ago. He advises other lawyers on medical negligence cases and tries some himself, according to other plaintiff's lawyers, who say he is nationally recognized in the field.But Dry is also known in Kentucky legal circles for the unusual fashion in which he met his wife, who was a juror on a medical malpractice case he won in Fayette County in 1998.
A few days after the verdict, he called up Wanda McClure, asked her out, and then married her, she later said in a deposition. At their request, the judge who tried the case, Lewis Paisley, performed the ceremony -- after he was assured they had never met before the trial and there was no "funny business" during it, he said.
Paisley, now retired, said it was an innocent case of love at first sight.
The couple is still married, and Wanda McClure Dry, who later went to law school, now practices in his office.
Posted by Marcia Oddi on November 28, 2007 08:37 AM
Posted to Courts in general
Tuesday, November 27, 2007
Courts - "A Judge’s ‘Inexplicable Madness’ Over a Cellphone"
Howard Bashman's How Appealing has all the links that go with a story today from the Buffalo News that begins, "A state panel has ordered City Judge Robert M. Restaino removed from the bench for jailing 46 defendants after a cell phone rang in his courtroom and no one would admit to owning it."
[Updated 11/28/07] "Judge's Removal Recommended for Prolonged Tirade Over Courtroom Cell Phone" is the title to a story today by Joel Stashenko in the New York Law Journal.
Posted by Marcia Oddi on November 27, 2007 08:03 PM
Posted to Courts in general
Ind. Courts - "Monroe courts picked as computer test site"
The ILB has a long list of entries, beginning with this one on March 8, 2005, on the Indiana Supreme Court's efforts to implement a state-wide case management system.
This most recent ILB entry, dated Oct. 26, 2007, headed "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," discussed how the planned state court pilot project in Monroe County might (unnecessarily) interfere with existing DoxPop service in that county.
That situation apparently continues to be unresolved. However, the Bloomington Herald Times ($$$) has a story today by Bethany Nolan proving general background on the Monroe County pilot project:
Monroe County is a test site for a new computerized courts case management system the state hopes will be used by all 92 Indiana counties within the next five years.The state is footing the bill for the Web-based system, which enables courts to automate functions such as imaging, accounting, docketing and creating calendars and reports. Indiana Supreme Court Justice Frank Sullivan, who was in Bloomington Monday to talk with area judges, county officials and attorneys about the new system, said it will also allow citizens to check the status of a case through the Internet for free, create a statewide registry of protective orders, and allow law enforcement to issue paperless “e-tickets” that will transmit directly into the system. It will also connect with the state Bureau of Motor Vehicles, the Indiana State Police, the Department of Correction and the Family and Social Services Administration.
The new system, called Odyssey, will go live in Monroe County on Dec. 17. Marion County’s small claims court is serving as a test site as well. The system was developed by Texas-based Tyler Technology.
“This will move us, by substantial steps, into the 21st century,” Monroe Circuit Judge Kenneth Todd said. “It will move us into a far better position to serve the citizens of Monroe County, and serve them in a more efficient and capable fashion.”
Sullivan, who serves as chair of the state Supreme Court’s Judicial Technology and Automation Committee, said the committee formed several years ago to provide help for local courts. Committee members believe the Odyssey system will create more efficient courts, improve communication with law enforcement and save money by moving counties that operate on different systems to the same case management system, he said.
“The Indiana Supreme Court is proud to be your partner in technology,” he said, adding, “This is all about trying to do things more efficiently by combining the resources of multiple counties.”
The state is paying for the system through user fees — of the fee people pay to file a civil case, $7 is dedicated to the project, Sullivan said. That’s raised enough to pay the expected $7 million to $8 million licensing fees for the program, he said. The state also expects to pay for updates, maintenance and to keep up a central server system in Indianapolis. The committee will also use about $65,000 in grant money to help law enforcement agencies obtain the necessary equipment to issue “e-tickets” rather than traditional paper violation tickets, Sullivan said.
Monroe County got a bonus by being a test site, however. The state is converting the data of more than 250,000 cases in the county’s current case management system to put into the Odyssey system so the county doesn’t have to run two systems in the future.
Sullivan said the committee hopes to see 20 percent of the state’s counties using Odyssey by the end of 2008, with the goal of having most counties online by 2010 or 2011. He said the state chose Monroe County as a test site because of the county’s eagerness to participate and its high quality courts and technology staff.
Posted by Marcia Oddi on November 27, 2007 04:24 PM
Posted to Indiana Courts
Ind. Courts - More on "Admissibility of electronic evidence -- is it "authentic"?
On Nov. 16, 2007 the Lafayette Journal & Courier published a story headlined "Transcript leads to man's conviction," written by Sophia Voravong, that reported:
For nearly two hours Wednesday, a Tippecanoe County jury listened to a sordid exchange between a 24-year-old man and someone he believed was a 13-year-old girl.Given that authentication of computer-related evidence is a relatively new area, the ILB wondered about the steps the prosecution took to get the chat room conversations admitted. In response to a question from the ILB, an observer at the trial responded:The line-by-line recitation came from several online conversations that Justin W. Hicks, now 25, of New Castle had with the "girl," in which he detailed wanting to perform kinky sexual acts on her.
It was a key piece of evidence presented by the Tippecanoe County prosecutor's office during a two-day trial in Tippecanoe Circuit Court -- resulting in Hick's conviction Thursday of two counts of Class A felony attempted child molestation and five counts of Class C felony child solicitation.
Jurors deliberated for about three hours before returning the verdict.
"He was found guilty as charged," deputy prosecutor Laura Zeman said. "We're pleased because we don't want child predators traveling to our community to have sex with our children."
Hicks, a prison guard at New Castle Correctional Facility, was arrested as part of an undercover sting by the Lafayette Police Department. The "girl" he had been chatting with was detective Sgt. Tom Davidson.
He showed up in December 2006 to a Lafayette apartment where he believed the teen lived. The meeting had been arranged online.
The detective posing as the girl and an a female investigator actually read printed pages of the transcripts out loud. The detective read the suspect's "lines" and the investigator (a female) read the 13-year-old's lines.The ILB sent a message to the proscutor asking about how the chat room conversations had been authenticated, but received no response.There were probably a good 20 pages or so of printed chat from a Yahoo chatroom, took about two hours for them to go through it all line-by-line (every LOL, brb, etc).
I know the detective saved each chat at the end and those were copied to a disk. He also printed off copies. They seized Hicks' computer, too. I'm not sure how exactly it works, but we have a similar chat system and you can save all chats verbatim. It gives a timestamp after each entered line.
In an entry dated June 18th, headed "Admissibility of electronic evidence -- is it "authentic"?", the ILB pointed to the May 4, 2007 opinion issued by U.S. Magistrate Judge Paul W. Grimm in the case of Lorraine v. Markel (D Md). The ILB posted the 101-page opinion online, along with a linked TOC. From the TOC it is easy to see the five evidence standards that electronically stored information must satisfy in order to be admissible under Judge Grimm's ruling. These are (1) relevance, (2) authenticity, (3) hearsay, (4) the original writing rule, and (5) balancing probative value against unfair prejudice.
[The second standard, authenticity, has been the focus of several Res Gestae articles I have written, focused on the problems of assuring the authenticy and admissibility of Indiana rules and statues where the official text of these basic legal documents is no longer available in print, but solely online.]
Judges Grimes' May 4, 2007 ruling has a discussion on the admission of "Text Messages and Chat Room Content," found on pp. 43-44 of the Md. federal court opinion.
Interestingly, another federal district case, out of Nebraska, issued a little over a month earlier than Lorraine, illustrates what can go wrong in the authentication of chat room discussions. The decision is U.S. v. Gerald Jackson (D. Neb., 3/28/07), and involves a motion in limine to exclude the chat room evidence. Some quotes:
In his current motion in limine, defendant seeks an order prohibiting the government from introducing the cut-and-paste document of alleged online chat conversations between “gnesta18" and “k8tee4fun” into evidence at trial. * * *The ILB had an entry earlier this year about another chat room conviction, in federal court, involving a former coach "charged with trolling the Web for sex with young girls," according to the NWI Times (see 7/15/07 ILB entry here).The evidence at issue involves certain “instant message” or “chat” conversations conducted via computer between Margritz, posing as fourteen-year-old girl with the screen name k8tee4fun, and the defendant, using the screen name gnesta18. The conversations occurred between July 17, 2001, and August 14, 2001. The parties agree that both defendant’s and Margritz’s computers are missing. The parties also agree that there are no longer original electronic computer printouts or copies on floppy discs or hard drives or disc drives capturing the computer conversations between Margritz and the defendant during that period of time. None of the conversations were saved. It appears from the testimony of Margritz that he wiped his computer clean during a routine upgrade a couple of years after this investigation. Although it is not totally clear, the court believes the government agrees that the computer seized from the defendant has been lost or destroyed. Consequently, the government is attempting to introduce copy-and-paste notes taken by Margritz from the online chats and saved into a Microsoft Word document. Defendant objects to the admissibility of this evidence.
Margritz testified he conducted the online sting operation that resulted in the arrest of Jackson. He further testified that, at the end of each chat session, he saved the conversations between k8tee4fun and gnesta18 by clicking and dragging to highlight the complete conversation from start to finish. Filing No. 71 at 11, 18. He then copied and pasted the entire selection into a word processing document in Microsoft Word. Id. He testified that he saved each conversation chronologically in an ongoing log. Filing No. 71, 12:1-2; 18:14-16. He further testified that immediately after he copied and pasted the conversations into Word, he made another copy for himself and added certain notes and edits to that copy. Filing Nos. 71, 73-74, 77-78. He acknowledged that it was possible to leave out words if they were not properly highlighted and dragged, but stated that there was no human error in this case because he took “great pains” to look back at the screen and make sure he captured everything accurately before closing the chat window. Id. at 12-14, 21-22. He further testified that he never modified the document in any way. Id. at 12:9-13. He testified that he never relied on the archives of Yahoo, apparently because it was unavailable or he had been told it was not reliable.
Kevin H. Peden, a computer forensics expert, also testified at the hearing. He stated that he had seventeen years of law enforcement, had background experience investigating crimes involving children, and he had a computer engineering degree from Spokane Community College. He received training at the computer forensic boot camp, and he attended the NTI school of forensics. He has a computer certificate from Oregon State. He testified that he has conducted over 100 investigations and worked on fifteen child pornography cases. He testified that he always produced a bit-stream image of the hard drive, which was the forensic copy of the hard drive and is the best way to confirm the chat. Peden testified that the bit stream image would be the only way to see the evidence exactly as it appeared during the conversations. According to Peden, other ways to accurately save computer chats would include a screen capture where a log file is saved to the hard drive, found in unallocated space, or use of the ypager log found in Yahoo. He also testified that there were third-party software programs available in 2001 that would accurately save the online chats, and the basic “print screen” and “file-print” options would likewise have captured the entire chat. Peden testified that the cut-and-paste method employed by Margritz was the least effective way to capture the chat log. Filing No. 72, 19:4-12. * * *
The court finds the cut-and-paste document is not admissible at trial. First, the burden is on the government to show the document is authentic. United States v. Black, 767 F.2d 1334, 1342 (8th Cir. 1985); Fed. R. Evid. 901(a); United States v. Tank, 200 F.3d 627, 630 (9th Cir. 2000). The government must make a foundational showing that the transcript is trustworthy. United States v. Webster, 84 F.3d 1056, 1064 (8th Cir. 1996) (with regard to recording). The government attempts to introduce the editorialized version of the cut-and-paste document. However, the court finds the evidence offered by Peden is credible and supportable. Peden testified about a number of methods that could have been utilized to accurately capture the chats, but none of these methods were used. As set forth above, there are numerous examples of missing data, timing sequences that do not make sense, and editorial information. The court finds that this document does not accurately represent the entire conversations that took place between the defendant and Margritz. The defendant argues that his intent when agreeing to the meeting was to introduce his grandniece to the fourteen-year-old girl. Defendant is entitled to defend on this basis, as it goes to the issue of intent. Defendant alleges that such information was excluded from the cut-and-paste document or from a lost audiotape of a phone conversation between him and Margritz. The court agrees and finds the missing data creates doubt as to the trustworthiness of the document. See, e.g., Webster, 84 F.3d at 1064 (government must show trustworthiness of tape recording). Changes, additions, and deletions have clearly been made to this document, and accordingly, the court finds this document is not authentic as a matter of law.
Second, in the alternative, defendant argues that the cut-and-paste document is not admissible as it is not the best evidence. This rule provides an original writing or recording to prove the truth of the contents. Fed. R. Evid.1002. A computer printout is considered the original if it accurately reflects the data. Fed. R. Evid. 1001(3). The same is true of a duplicate. Fed. R. Evid. 1001(4), 1003. As the court has previously stated, the cut-and-paste document offered by the government is not an accurate original or duplicate, because, as previously noted herein, it does not accurately reflect the entire conversations between the defendant and Margritz. In addition, Margritz changed this document by including his editorial comments. Unlike the cases relied on by the government in its brief, in the case before the court there is expert testimony that the cut-and-paste document has been altered. Accordingly, for these same reasons the court likewise finds the cut-and-paste document inadmissible. In that same regard, the court finds the document is inadmissible under Fed. R. Evid. 1004 (allows for the secondary evidence when original is destroyed). See United States v. Gerhart, 538 F.2d 807, 809 (8th Cir. 1976). It is clear that the proposed document does not accurately reflect the contents of the original.
The government relies heavily on United States v. Tank, 200 F.3d 627 (9th Cir. 2000) and United States v. Simpson, 152 F.3d 1241, 1249-50 (10th Cir. 1998) for the proposition that chat room logs are admissible. The court finds the cases relied on by the government to be of little assistance. In both cases, it appears that the actual computer files were offered as evidence, not a cut-and-paste version of the computer files. The court would have no difficulty admitting evidence which had been saved on the computer and was the actual computer printout. The cut-and-paste document is not a computer record nor is it a computer printout. * * *
The motion in limine is granted and the cut-and-paste document is excluded for all purposes.
Posted by Marcia Oddi on November 27, 2007 03:00 PM
Posted to Ind. Trial Ct. Decisions
Ind. Decisions - "The Indiana Securities Law requires more of a director than a simple assumption that all is well."
In Ralph E. Lean v. Charles D. Reed and Paul A. Reinken, and Galaxy Online, Inc. and Galaxy Internet, Inc., a 14-page, 4-1 opinion, Justice Boehm writes:
The Indiana Securities Law creates liability of a director of a corporation for violations of the requirement that the corporation’s securities be registered and for misrepresentations and omissions of material facts in the sale of its securities. The director may establish a defense that in the exercise of reasonable care he did not know and could not have known of the violations. In most cases reasonable care is a fact issue. However, where it is undisputed that the director had no basis other than an assumption that management and counsel had arranged the transaction in conformity to law, failure to exercise reasonable care is established as a matter of law. * * *The Indiana Securities Law requires more of a director than a simple assumption that all is well.
Conclusion. The trial court’s grant of partial summary judgment is affirmed. We summarily affirm the Court of Appeals as to issues not addressed in this opinion. See Appellate Rule 58(A).
Shepard, C.J., and Dickson and Rucker, J.J., concur.
Sullivan, J., dissents, believing this appeal should be dismissed as moot because this case has been settled.
Posted by Marcia Oddi on November 27, 2007 01:27 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)
For publication opinions today (3):
William McDermott v. State of Indiana - "Under the unique facts and circumstances of this case, we find that the State has met its difficult burden of demonstrating probable cause as well as exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. The trial court’s decision is not against the logic and effect of the facts and circumstances before it. Therefore, we do not find that the trial court abused its discretion when it denied McDermott’s motion to suppress."
Theodore Wittl v. State of Indiana - "Theodore Wittl (“Wittl”) pleaded guilty in Marion Superior Court to Class D felony auto theft and Class A misdemeanor criminal recklessness and was ordered to pay $4,918.80 in restitution to Hertz Rental Car of Louisville, Kentucky (“Hertz”). Wittl appeals the amount of ordered restitution. We affirm."
Brian Woods v. State of Indiana - "Brian Woods (“Woods”) was placed on probation in 2002. This case arises from the decision of the Marion Superior Court to revoke Woods’s probation. Woods claims upon appeal that the trial court denied him due process by preventing him from explaining why he violated the terms of his probation. We affirm."
NFP civil opinions today (2):
In the Matter of K.H. v. State of Indiana (NFP) - "Given K.H.’s failure to respond to the numerous lesser measures already afforded her, we cannot say that the juvenile court abused its discretion by concluding that its disposition was the least restrictive alternative consistent with the safety of the community and the best interests of the child. Thus, we cannot say that the juvenile court abused its discretion by making K.H. a ward of the DOC and recommending a six month commitment to the DOC."
Johann L. Backer v. Portage Twp. of St. Joseph County and Portage Twp. Trustee (NFP) - "In sum, the evidence most favorable to the judgment indicates that the Trustee gathered information regarding Backer’s application, applied its guidelines to that information, and granted partial assistance accordingly. The evidence supports the trial court’s findings and the findings support its judgment to uphold the Board’s decision to affirm the Trustee’s notice of poor relief action."
NFP criminal opinions today (8):
Jamar Thomas v. State of Indiana (NFP)
Thomas Morgan, Jr. v. State of Indiana (NFP)
Charles Rigdon v. State of Indiana (NFP)
Richard B. Jessup v. State of Indiana (NFP)
Romaine C. Carter v. State of Indiana (NFP)
Larry Washington v. State of Indiana (NFP)
Terry D. Bryant v. State of Indiana (NFP)
Leroy H. Hall v. State of Indiana (NFP)
Posted by Marcia Oddi on November 27, 2007 01:18 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Supreme Court issues confusing ruling re Mental Illness and Competency to be Executed
Michael Dean Overstreet v. State of Indiana, a 46-page opinion authored by Justice Rucker for the majority, is somewhat split , as indicated on p. 41:
Shepard, C.J., and Dickson, Sullivan, and Boehm, JJ., concur except as to part VI. B, and vote to affirm the judgment of the post-conviction court.Justice Rucker's opinion begins:As to part VI. B, Shepard, C.J. delivers an opinion in which Sullivan, J. concurs and Dickson, J., and Boehm, J., deliver separate opinions.
A jury convicted Michael Dean Overstreet of murder, rape, and criminal confinement in connection with the 1997 strangulation death of 18-year-old Kelly Eckart. The jury recommended a sentence of death, and the trial court accepted the recommendation. On direct appeal we affirmed Overstreet’s conviction and sentence of death. Overstreet v. State, 783 N.E.2d 1140 (Ind. 2003), cert. denied, 540 U.S. 1150 (2004). Thereafter, Overstreet filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. He now appeals that denial raising several issues for our review, at least two of which are waived because they were known and available at the time of Overstreet’s direct appeal, and another three are barred because of the doctrine of res judicata. We address the remaining issues, which we rephrase as follows: (a) was Overstreet denied the effective assistance of trial counsel; (b) was Overstreet denied the effective assistance of appellate counsel; (c) did Overstreet receive a fair post-conviction proceeding; and (d) is Overstreet incompetent to be executed because of his mental illness.Part VI is "Mental Illness and Competency to be Executed"; VI-A relates to the federal constitutional claim, VI-B to state constitutional claim.
Oddly, on pp. 38-40, where the discussion of the majority opinion turns to the VI-B, the state constitutional claim, the language becomes that of a minority opinion, ending on p. 40 with:
Because I see no principled distinction between the diminished capacities exhibited by Overstreet and the diminished capacities that exempt the mentally retarded from execution, I would declare that executing Overstreet constitutes purposeless and needless imposition of pain and suffering thereby violating the Cruel and Unusual Punishment provision of the Indiana Constitution. Therefore, I would remand this cause to the post-conviction court with instructions to impose a sentence of life imprisonment without parole. In all other respects, I would affirm the judgment of the post-conviction court.
Posted by Marcia Oddi on November 27, 2007 10:11 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Law - "Gary cameras may nab drivers who run red lights"
Jon Seidel reports today in the Gary Post-Tribune:
Running a red light in the city might get riskier if talks between the city's administration and other elected officials go as planned.This was an issue in Indiana nearly 3 years ago, as indicated in this Feb. 2, 2005 ILB entry headed "State may jump on red-light camera bandwagon." At the time, a bill was proposed which would allow 10 Indiana cities to install red-light cameras. Another ILB entry, from March 30, 2005, includes these quotes from an Evansville Courier & Press editorial:A proposed law withdrawn from the City Council agenda last week would have allowed the use of cameras to catch drivers ignoring a red light on the road.
Joel Rodriguez, a special assistant to Mayor Rudy Clay, said the ordinance was withdrawn because Clay wants to discuss the idea with City Clerk Suzette Raggs and City Judge Deidre Monroe.
Once that happens, Rodriguez said, the City Council can expect to see the item return for a vote. "Our goal is to have at least four pilot cameras up," Rodriguez said.
Similar devices are in use in Chicago, but Rodriguez said he doesn't know of any city in Indiana that uses them.
Several states have banned red-light cameras and other photographic-enforcement systems.Gary also has an ordinance going into effect Jan. 1, 2008 which prohibits use of cell phones while driving - see this Oct. 8, 2007 ILB entry.Others have rewritten their laws after noticing that violations were being driven more by government greed than by safety considerations.
So from the safety standpoint there is some evidence that red-light cameras work, but there is enough evidence to the contrary to warrant caution. On the issues of intrusiveness and potential for abuse, the verdict would appear pretty clear.
We see a signal indicating the way the Legislature ought to vote on red-light cameras.
It would appear to be flashing yellow.
Posted by Marcia Oddi on November 27, 2007 09:56 AM
Posted to Indiana Law
