Thursday, January 03, 2008

Ind. Decisions - "This Seventh Circuit decision is a real gem"

Decision of the Day today highlight's another Easterbook opinion (his Indiana decision was summarized in an earlier ILB entry today). The highlighted case originated in Illinois and is titled Federal Trade Commission v. QT Inc. Chief Judge Easterbrook's opinion begins:

WIRED Magazine recently put the Q-Ray Ionized Bracelet on its list of the top ten Snake-Oil Gadgets. See http://blog.wired.com/gadgets/2007/11/10-awesome-gadg.html.

The opinion continues with a photo of the “Gold Deluxe” Q-Ray Ionized Bracelet

Robert Loblaw's blog entry about the decision begins:

If you only read only opinion by Judge Easterbrook this year, make it this one. It may be a little early to start handing out superlatives for 2008, but this Seventh Circuit decision is a real gem.

Posted by Marcia Oddi on January 3, 2008 01:08 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

Note: All five of these documents currently are corrupted and cannot be read. The ILB has informed the Clerk's office.

For publication opinions today (1):

Donyea Fowler v. State of Indiana

NFP civil opinions today (2):

David Boilek v. Olin Barham and Indiana Insurance (NFP)

In the Matter of the Paternity of B.L.A.S.; Jerry L. Brodie v. Alicia Shotts (NFP)

NFP criminal opinions today (2):

Timothy L. Johnson v. State of Indiana (NFP)

Scott E. Stidham v. State of Indiana (NFP)

Posted by Marcia Oddi on January 3, 2008 12:53 PM
Posted to Ind. App.Ct. Decisions

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

In U.S. v. Moon (ND Ind., Judge Lozano), an 8-page opinion, Cheif Judge Easterbrook writes:

Anthony Alexander and George Moon have been convicted of distributing cocaine and of some ancillary crimes. See 21 U.S.C. §841. Alexander received a sentence of life imprisonment and Moon of 190 months. The principal question on appeal is whether a chemist violated the Confrontation Clause of the Sixth Amendment when testifying that the substance seized from defendants was cocaine. * * *

Thus we agree with Washington that the Sixth Amendment does not demand that a chemist or other testifying expert have done the lab work himself. Our decision in United States v. Ellis, 460 F.3d 920 (7th Cir. 2006), is to much the same effect—though it does not involve expert analysis. A hospital conducted blood and urine tests that were introduced into evidence as the hospital’s business records. See Fed. R. Evid. 803(6); see also Rule 803(4). Then the arresting officer testified that the results demonstrated the presence of methamphetamine in Ellis’s system. Ellis holds that the test results were not “testimonial” under Crawford and Davis. 460 F.3d at 923–24. We did not consider the possibility that the data are not “statements” in the first place. Thus Washington and Ellis reach the same result: the Confrontation Clause does not forbid the use of raw data produced by scientific instruments, though the interpretation of those data may be testimonial.

For more, see this entry by Howard Bashman of How Appealing.

Posted by Marcia Oddi on January 3, 2008 12:41 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - More on: Defeated Anderson mayor refuses to step down

Updating yesterday's ILB entry, a posting at 9:11 pm last evening by Jessia Kerman on the Anderson Herald Bulletin website reports:

A Madison County judge has requested the Indiana Supreme Court appoint a special judge to decide whether Kris Ockomon was eligible to be elected as mayor of Anderson. * * *

Because of the lawsuit, Kevin Smith announced Tuesday that he would not relinquish his position as mayor of the city of Anderson.

“That’s why we need to get this to court as quickly as possible,” Smith said Wednesday at a press conference.

While Ockomon still controls the office on the fifth floor of the City Building, Smith has not stepped down from the position, a “constitutional obligation” he is required to do.

“What we’re dealing with here is a legal issue,” Smith said. “Yes, the keys may be surrendered, but that’s not what the issue is.”

Today the Herald Bulletin has a comprehensive editorial headed "Ockomon is the mayor."

WISH TV 8 also has brief coverage of the story.

Posted by Marcia Oddi on January 3, 2008 08:33 AM
Posted to Indiana Government

Wednesday, January 02, 2008

Courts - "Fledgling Kentucky public defender takes case to highest court"

Not only the Indiana voter ID cases, but the Kentucky lethal injection case (see Sept. 28th ILB entry here) will be heard by the SCOTUS next week. Lethal injections will be Monday, Jan. 7th, voter ID will be Wed., Jan. 9th.

Today the AP's Brett Barrouquere has this story. Some quotes:

FRANKFORT, Ky. -- One of the biggest capital punishment cases to come before the U.S. Supreme Court in a generation was put together largely by a young, fresh-out-of-law-school member of Kentucky's overworked and underpaid corps of public defenders.

David Barron, now 29, filed an appeal on behalf of two Kentucky death row inmates, arguing that the three-drug cocktail used in lethal injections can cause excruciating pain, and thus amounts to cruel and unusual punishment in violation of the Eighth Amendment to the Constitution.

After three years of long hours on Barron's part, the Supreme Court agreed to hear arguments in the case on Monday. This is the first time in more than a century that the high court will address the legality of a method of execution. Thirty-six states use lethal injection, and executions across the country have come to a halt in the meantime. * * *

The challenge is the ninth case Kentucky's public defenders have gotten before the high court in the past three decades. Among others was the landmark 1986 ruling Batson v. Kentucky, in which the Supreme Court found it unconstitutional to dismiss a juror because of race.

Barron works in the public defender's capital post-conviction unit, a corps of five attorneys who handle appeals for Kentucky's 38 death row inmates.

For this case, the public defender's office is bringing in Donald Verrilli, a Washington lawyer who frequently appears before the high court, to argue the challenge.

Posted by Marcia Oddi on January 2, 2008 11:58 AM
Posted to Courts in general

Ind. Decisions - 7th Circuit issues two Indiana opinions

In Mesman v. Crane Pro Services (ND Ind., Magistrate Judge Cherry), a 15-page opinion, Judge Posner writes:

This products-liability case is before us for the second time. 409 F.3d 846 (7th Cir. 2005). Federal jurisdiction is based on diversity of citizenship, and the tort issues are governed by Indiana’s productsliability statute and its common law of torts. John Mesman, an employee of a manufacturer of steel products named Infra-Metals, was gravely injured when a load of steel sheets that he was unloading from a boxcar fell on him from the crane that was lifting the sheets out of the boxcar. He brought suit under the products-liability law against the firm that had rebuilt the crane, Konecranes. A jury awarded the plaintiffs (Mesman and his wife) $5.6 million, based on its judgment that Konecranes was one-third responsible for the accident and Infra-Metals—which Mesman could not join in the suit because it was his employer—two-thirds responsible. But the judge set the verdict aside and entered judgment for the defendant. She further ruled that if she was wrong in doing this the defendant was entitled to a new trial because the jury had been confused by irrelevant evidence and had ignored critical instructions. We reversed the judgment for the defendant but affirmed the order for a new trial. The case was retried and this time the jury returned a verdict for the defendant. The magistrate judge presiding at the retrial refused to set the verdict aside. Hence this second appeal, which is by the plaintiffs. * * *

The defendant’s principal argument was not that the danger was obvious, whether to the accident victim or to the crane’s operator, but that the safety precautions were adequate and that the culpable cause of the accident was Infra-Metals’ failure to instruct the operator adequately in the safe operation of the crane. Apparently the jury was persuaded. There are no grounds for setting aside its verdict. The judgment for the defendant is therefore AFFIRMED.

In Nelson v. Hodowal (SD Ind., Judge Hamilton), a 9-page opinion, Chief Judge Easterbrook concludes:

A trustee’s duty to furnish information to beneficiaries, on which see Restatement (Third) of Trusts §82 (T.D. 4, 2005), may be discharged directly or through an intermediary such as Merrill Lynch. Often delegating the function to a specialist is best for a novice investor.* * * ERISA does not hold a fiduciary responsible for the decline in an investment’s value, when an informed and independent investment adviser has been furnished without charge to all beneficiaries, who exercise full control over which investments their accounts will hold. AFFIRMED.

Posted by Marcia Oddi on January 2, 2008 11:44 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Court upholds OWI sentence"

The Dec. 3rd COA ruling [see ILB entry here - 3rd case] in the case of James H. Lindsey v. State of Indiana is the subject of a story today by Diana Wires of the Bedford Time-Mail. Some quotes:

INDIANAPOLIS — James N. Lindsey’s conviction and sentence for driving drunk and being involved in an accident that killed two teens was upheld by the Indiana Court of Appeals last month.

Lindsey, 40, formerly of Mitchell, was convicted by a jury in February of operating a vehicle while intoxicated with an alcohol concentration equivalent of 0.15 percent, a Class A misdemeanor. Later, he pleaded guilty to being a habitual substance offender. * * *

Lindsey was sentenced by Orange Circuit Court Special Judge Kenneth L. Lopp to eight years in jail.

“On April 23, 2007, the trial court issued a new sentencing order, ordering that Lindsey serve the remainder of his sentence at the Orange County Jail because the Department of Correction would not accept Lindsey based on the fact that his conviction was for a misdemeanor,” according to the Indiana Court of Appeals’ opinion from Dec. 3.

Lindsey’s attorney Nick Herthel appealed the conviction and sentence on Lindsey’s behalf and had five specific issues.

The Indiana Court of Appeals affirmed all of the Orange County court’s rulings.

“Here, the record reflects that the State’s failure to disclose the evidence upon which it intended to rely to support the HSO allegation appears to have been inadvertent, not deliberate. …,” the opinion stated. “Further, we note that the evidence produced by the State as part of its discovery materials at least put Lindsey on notice of the prior convictions on which the State intended to rely to prove the HSO allegation. The exercise of due diligence would have led Lindsey to discover sufficient evidence existed to establish Lindsey’s prior convictions beyond a reasonable doubt in order to prove the HSO allegation. Thus, Lindsey cannot now argue he was prejudices by the State’s failure to produce the certified documents because it caused him to request the instruction on the lesser included Class A misdemeanor offense.”

Lindsey’s prior criminal history includes three prior Class A misdemeanor and a Class D felony drunken driving charges. He was sentenced to one-year of incarceration for the latest drunken driving with a blood-alcohol content of 0.15 percent or more charge, and Lopp added seven years to that sentence for him being a habitual offender.

Lindsey also argued that serving his sentence at the Orange County Jail was cruel and unusual punishment.

“Lindsey maintains that the county jail does not provide him with access to recreation, education, counseling, or other rehabilitative services that would be available to him if her were incarcerated in the DOC,” the opinion stated. “Lindsey asserts in his brief that he is a large man, confined to a small, dark cell for much of every day. Lindsey contends that his incarceration at the county jail ‘inflicts purposeless, needless and unintended pain and suffering’ and further asserts that ‘[w]ith the advent of the modern DOC, it is obsolete or unusual for such a lengthy commitment to be served at a county jail.”

The appeals court ruled that the Orange County Jail was an acceptable.

Posted by Marcia Oddi on January 2, 2008 11:38 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Defeated Anderson mayor refuses to step down

Updating this ILB entry from Dcc. 29, where the ILB quoted from a story in the Anderson Herald Bulletin that began:

Opponents of Kris Ockomon have mounted a legal challenge to his eligibility as mayor just four days before he’s set to take office.

On Friday, a temporary restraining order and a request for permanent injunction were filed against Ockomon, challenging his eligibility as a candidate. Ockomon is scheduled to be sworn-in on Tuesday, but the Madison County courts will be closed until Jan. 2.

, the Herald Bulletin reported this morning at 9:52 am:

On the same day that Kris Ockomon was sworn in as the city’s new leader, Kevin Smith said he would not step down as mayor of Anderson.

Smith, a Republican, said Tuesday that the issue of Democrat Ockomon’s residency must be resolved before Ockomon can rightfully take over the office or mayor. On Friday, five people, some of whom had worked in the Smith administration, filed an injunction to halt Ockomon from becoming mayor because he had allegedly not been a city resident for the required year.

Smith said in a statement: “Given the obvious potential for a vacancy in the office of mayor based upon the lawsuit which has been filed, and given my constitutional duty to remain in office, I am today announcing that I have not and will not be surrendering the office of mayor pending a determination by the courts as to whether Kris Ockomon is or is not qualified to be the mayor of Anderson.” * * *

Smith said in a phone interview that his decision to remain in office came after meeting with the people who filed the injunction and their attorney.

“They pointed out that they believe that Ockomon was not a qualified candidate, because of the residency issue,” Smith said. “In light of that, they don’t believe he was qualified to be sworn in as mayor.”

[State Sen. Tim Lanane, D-District 25, who is Anderson’s new city attorney under Ockomon] said if the residency issue were legitimate, Smith should have raised an objection sooner.

“He had every right to raise this issue in the campaign,” Lanane said.

From a story posted at 11:04 am:

Madison County Superior Court 1 Dennis Carroll ordered Wednesday morning the immediate appointment of a special judge to determine the residency of Mayor Kris Ockomon.

A lawsuit was filed Friday seeking an immediate order restraining Ockomon from taking the oath to be Anderson's mayor on Tuesday and a permanent injunction to restrain him from assuming or exercising any duties as mayor. The request for the restraining order was denied and Ockomon took office. A judge did not rule in the matter of a permanent injunction.

Mayor Kevin Smith declined to surrender the office of mayor Tuesday until the merits of this litigation has been determined. Smith claims Ockomon did not live in Anderson the required one year before his election to office.

The Madison County judges believe they each have a conflict of interest in the case, according to Carroll's order. A request has been sent to the Indiana Supreme Court for a special judge to be appointed.

Posted by Marcia Oddi on January 2, 2008 11:23 AM
Posted to Indiana Government

Ind. Courts - "New judge’s first experience in courtroom was as a juror"

Laura Lane reports today in the Bloomington Herald Times ($$$) on new Monroe County Judge Christine Talley Haseman in a story that begins:

Christine Talley Haseman’s interest in lawyering grew not from Perry Mason reruns or a respected barrister in the family.

It is rooted instead in her up-front seat as a juror in a gruesome murder trial 20 years ago.

A 34-year-old man named Robert E. Lee stood accused of killing and dismembering Indiana University graduate student Ellen Marks. Haseman was one of the 12 jurors who decided he was guilty.

Monroe Circuit Judge Kenneth Todd sentenced Lee to 60 years in jail. With credit for good behavior, Lee is set to be released in eight years.

Back then, Haseman was a 21-year-old college student on the fast track to an MBA at Indiana University.

Today, she dons a black robe as Monroe County’s ninth judge.

In between, she got that MBA, worked with children with severe disabilities, became a production control specialist at General Electric, completed law school, served as a juvenile judge in Lawrence County, established a private law practice and had two children.

Haseman was perched to launch herself into a career in business and marketing when she was chosen as a juror in the Lee trial.

The experience got her thinking about a change of course.

Here is a list of earlier ILB entries referencing Haseman.

Posted by Marcia Oddi on January 2, 2008 09:39 AM
Posted to Indiana Courts

Law - "A Taxing Issue: What to Render Unto Whom?"

A timely article today ($$$) on the front page of the Marketplace section of the Wall Street Journal, given the interest in this issue evidenced by members of the 2008 General Assembly. Suzanne Sataline reports:

With expansion-minded churches managing real-estate portfolios, sports centers and even shopping malls, religious leaders are increasingly getting unwelcome visits from tax collectors.

Local government officials say they are levying taxes because churches are running businesses that don't have a charitable mission. At a time of greater federal scrutiny of religious finance, these efforts are targeting fast-growing Protestant megachurches and television evangelists, as well as established Catholic and Jewish congregations. Church leaders counter that they aren't trying to turn a profit but find entrepreneurial ways to serve the poor and the faithful.

These ventures are a far cry from bingo. In 2004, Christ Chapel Community Church in Macon, Ga., paid $6 million for SportsTowne, an athletic club offering tennis, basketball, and roller hockey for a fee. On the weekend, church members set up seats for 1,000 worshipers. * * *

By longstanding tradition, state laws exempt properties used for religious or charitable purposes -- or for operations, such as church parking lots, that aid that mission. But the U.S. Supreme Court has ruled that taxing bodies aren't required to give religious exemptions.

Tax officials and church leaders say assessments have accelerated over the past several years, leading to sometimes lengthy disputes and, in some case, court fights. Congress has also been interested in some churches' expansive bent. Late last year, the Senate Finance Committee asked six televangelists with large operations to share extensive financial data, seeking to determine, among other things, whether they had strayed outside their nonprofit mission.

The changing nature of churches "forces both courts and agencies and tax commissioners to decide what's a religious or charitable use," says John Witte Jr., director of the Center for the Study of Law and Religion at Emory University in Atlanta.

Posted by Marcia Oddi on January 2, 2008 06:55 AM
Posted to General Law Related

Law - "Same-Sex Divorce Challenges the Legal System: Most States Lack Law, Precedent To Settle Issues"

Dafna Linzer of the Washington Post has a lengthy report today -- here are some quotes:

When her three-year-old marriage broke up, the 44-year-old doctor assumed she and her ex would split their property and jointly parent their two children. Her stay-at-home spouse wanted sole custody and the right to move the children out of Massachusetts.

In pretrial motions, both parents made the same argument to a judge: The children should be with me; I'm their mother.

For years, family court judges leaned toward a maternal preference when it came to custody disputes. But what to do when both parents are women, or neither is? Judges in Massachusetts have been grappling with that question since gay and lesbian couples began filing for divorce in 2004, seven months after the state Supreme Court legalized same-sex marriage.

Nearly 10,000 gay and lesbian couples married after the ruling. Massachusetts does not keep records on the number who have divorced, but lawyers who specialize in family cases say it is in the dozens. Those who choose to end their marriages soon discover that the trauma of divorce is compounded by legal and financial difficulties that heterosexual couples generally are spared.

"One of the benefits of marriage is divorce," said Joyce Kauffman, a Boston divorce lawyer who has handled a dozen same-sex divorce cases. "But for a lot of couples, that benefit is very complicated and very costly in ways that heterosexual couples would never have to experience." * * *

In 1996, Congress passed, and President Bill Clinton signed, the Defense of Marriage Act, which says that no state is required to recognize a same-sex marriage that occurred in another state. States that do not recognize those marriages "would probably not divorce a same-sex couple from Massachusetts," said a 2004 handbook on marriage produced by the Massachusetts Lesbian and Gay Bar Association.

Under Massachusetts law, both people seeking a divorce must reside in the state. That left Cassandra Ormiston and Margaret Chambers of Rhode Island in a bind. The two were wed in Massachusetts in 2004, soon after the state legalized same-sex marriages. But in 2006, they filed for divorce in their home state, where the law is silent on whether such marriages are legal.

The divorce issue then fell to the Rhode Island Supreme Court, which ruled in December that the state's family court lacks the authority to grant a divorce for same-sex couples because the state legislature has not defined marriage as anything other than a union between a man and a woman.

"There is now no way for me to get divorced unless I move back to Massachusetts, establish residency and then wait a year before I file, and I simply will not do that," a bitter Ormiston said after the ruling.

Andrew Koppelman, a law professor at Northwestern University, published a book in 2006, "Same Sex, Different States: When Same-Sex Marriages Cross State Lines." Koppelman urged states that oppose same-sex marriage to agree at least to perform divorces. "You have to have a way for people to get out of these things -- otherwise, you have multiple claims on the same property and no protections for people entering into new marriages. I think states that try to adopt these rules refusing to recognize the marriages just haven't thought it through."

Posted by Marcia Oddi on January 2, 2008 06:47 AM
Posted to General Law Related

Ind. Courts - More on "Lake Judges, lawyers look to improve system's efficiency"

Updating this ILB entry from Dec. 31, 2007, NWI Times columnist Mark Kiesling writes today:

Once the camel has its nose in your tent, so the saying goes, it's not long before the whole beast is inside.

The Lake County courts system began expansion in earnest after the release of a 1994 study by the Indiana Supreme Court, which said the civil division of Lake Superior Court was overworked and the criminal division was underworked.

New courts were created from thin air. Towns which never had courts before established them. Existing courts expanded.

Judges and magistrates were given docket administrators, magistrates, probate commissioners, bailiffs, probation officers and more to ease caseloads, and they retained the ability to appoint a judge pro tempore to simply take time off.

The camel is now all the way inside, and he is very comfortable where he is.

But figures do not support a need for all the courts we have. The civil courts do a lot of cases, but most of those are perfunctory hearings, many done by fax or phone. The county division of Superior Court disposes of more than 95 percent of its cases by pleas.

It costs an estimated $24 million annually to run the 27 courts in Lake County, but is the money being wisely spent?

Again, another study done by an outside organization suggests not.

The National Center for State Courts, a Virginia-based nonprofit organization that has analyzed state justice systems since 1971, has said our court system has duplication of effort, too many employees, is confusing and costs too much.

The study by NCSC Consulting, "Lake County, Indiana, Operational Efficiency and Effectiveness Study with MAXIMUS," does not appear to be available online.

Posted by Marcia Oddi on January 2, 2008 06:35 AM
Posted to Indiana Courts

Tuesday, January 01, 2008

Environment - How much pollution do Indiana facilities discharge into Lake Michigan each year?

The Sunday before Christmas (Dec. 23rd) the Gary Post-Tribune published a series of stories by their environmental reporter, Gitte Lasby, seeking to answer the question of "How much pollution do Indiana facilities discharge into Lake Michigan each year?" The lead story, headed "Progress, but not enough," reports in part:

The Clean Water Act set out to "virtually eliminate" discharges to U.S. waterways by 1985. But a Post-Tribune analysis shows Indiana's major facilities discharged more than 378 million pounds of pollutants into Lake Michigan and its tributaries in just one year.

Dumping of nearly all pollutants discharged by Indiana's 33 major polluters has fallen dramatically since 1979. The Clean Water Act has made a difference.

Dumping of nearly all pollutants discharged by Indiana's 33 major polluters has fallen dramatically since 1979. The Clean Water Act has made a difference.

But it hasn't reached its goal of zero discharges, or come near it. * * *

Releases of two substances have increased since then in Lake Michigan. Facilities dumped more than 10 times as much hexavalent chromium -- a human carcinogen -- than 26 years earlier. It would take 1.15 trillion gallons of water to dilute that much hexavalent chromium -- 1,918 pounds -- to safe drinking levels. Lake Michigan, at 1.3 quadrillion gallons, has 1,130 times that much water.

They also unloaded more than 227 million pounds of dissolved solids, such as salt. That's more than 15 times the amount released in 1979. * * *

No new deadline has been set to reach the goal of no discharges. But with the public firestorm this summer over the wastewater permit for BP Whiting and increased public interest in wastewater permits in general, environmentalists say the Clean Water Act is getting new scrutiny.

The last major overhaul was 20 years ago and it may be time for a new generation of the act, Cameron Davis, president of the Alliance for the Great Lakes, said.

"As I think the BP case told us, some people have lost sight of the fact that the Clean Water Act is supposed to get us to zero over time. And that needs to continue to be our goal. There's a lot of talk about reducing or eliminating our carbon footprints. We need to be doing the same to reduce our water footprint," Davis said.

Botts said last time public interest was this high was when pollution in the Cuyahoga River in Ohio caught on fire in 1969. The incident spurred an avalanche of pollution control activities, which resulted in the Clean Water Act.

"Progress, whether it's enough, remains to be seen. How it (the Clean Water Act) deals with growth, and still reducing pollution as you go, that's a bigger question for me," Botts said.

"The goal was to eliminate pollution. That's the direction we should continue to go. Recognize that we have made progress, but it's not enough."

Here are links to the accompanying stories:

The numbers: "Pounds discharged into Lake Michigan and tributaries" is available here.

"How the P-T got the story" is available here.

"Why should you care about the pollutants?" is available here.

"10 things you can do to help the lake" is available here.

Posted by Marcia Oddi on January 1, 2008 04:12 PM
Posted to Environment

Monday, December 31, 2007

Ind. Decisions - Court of Appeals issues 9 today (and 29 NFP)

Additional summaries may follow

For publication opinions today (9):

Harold Brandon Harris v. State of Indiana

Lloyd Harris v. State of Indiana

N.W.W. v. State of Indiana

Kevin Cole v. State of Indiana

James and Lisa Deaton v. Justin Robison and Knight Rifles, Inc. - "That evidence shows that Knight reasonably believed that Robison would realize the danger of unloading the rifle while pointing it at someone, regardless of whether one or both safeties were engaged. Thus, we conclude that Knight is not liable for failure to warn. The trial court did not err when it entered judgment on the evidence on this issue."

Christian John Gauvin v. State of Indiana

Thomas Keller and Shirley Rohrs v. Daniel Keller - "Defendants-Appellants Thomas Keller (“Tom”) and Shirley Rohrs (“Shirley”) appeal the trial court’s order finding that the family farm (“the Farm”) could not be partitioned and should be sold at a public auction. We affirm."

Debbie Pflederer v. Kesslerwood Lake Association, Inc. - "Case Summary: Debbie Pflederer, as personal representative of the estate of her brother, Douglas Schmidt, appeals from the denial of Schmidt’s motion to correct error following the denial of his motion for attorney’s fees and costs pursuant to Indiana Trial Rule 65(C). We reverse and remand for a hearing to determine the amount of fees and costs to which Schmidt is entitled for defending against a wrongfully issued injunction.

"Issue: Was Schmidt’s Trial Rule 65(C) motion properly before the trial court?"

American Family Mutual Insurance v. Louis and Susan Matusiak - [ILB - Unbeknownst to the parties, hail damaged the house's roof after the home inspection and before the closing.]

"At some point in September of 2005, the Martins noticed that several of their neighbors were having their roofs replaced and soon learned that their roof had sustained hail damage as well. The Martins contacted the Matusiaks regarding the roof, and received assurances that the Matusiaks would file a claim with their insurance company and pay the $1000 deductible required by the policy. The Martins subsequently received two estimates for the repair of the roof, one for $7834 and the other for $8643. In the end, American Family denied the Matusiaks’ claim, on the basis, inter alia, that they had suffered no loss resulting from the hail storm."

NFP civil opinions today (9):

Jimmy Robinson v. Review Board and Bayer Healthcare LLC (NFP)

Jennifer Wright Hobbs, et al v. S & A Services of Marion LTD, et al (NFP)

City of Warsaw and R. Paul Schmitt v. Richard and Jan Orban (NFP)

Bowman, Heintz, Boscia, Vician, P.C., Glenn S. Vician, et al v. David C. Jensen, John P. Twohy, et al (NFP)

Kimberly Tice v. Devin Tice (NFP)

Dennis Walburn v. Synda K.Walburn (NFP)

Stanley F. Collesano v. PFSI Financial Solutions, et al (NFP)

Jeffrey L. Alholm v. Rebecca A. Alholm (NFP)

Dennis A. Jackson v. Martina K. Jackson (NFP)

NFP criminal opinions today (20):

Barry D. McAtee v. State of Indiana (NFP)

Anthony A. Hopkins v. State of Indiana (NFP)

Josefina Hernandez-Romulado v. State of Indiana (NFP)

George Leachman v. State of Indiana (NFP)

Justin Mowry v. State of Indiana (NFP)

Clyde Miller v. State of Indiana (NFP)

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

Ashanti Clemens v. State of Indiana (NFP)

B.H. v. State of Indiana (NFP)

Anthony Irons v. State of Indiana (NFP)

John F. Gruber v. State of Indiana (NFP)

Jeffery Whitacre v. State of Indiana (NFP)

Raymond C. Bowyer v. State of Indiana (NFP)

Benjamin Harrison v. State of Indiana (NFP)

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

Timothy Runyon v. State of Indiana (NFP)

Charles Etienne v. State of Indiana (NFP)

Johnny Tilson Moore v. State of Indiana (NFP)

Kevin Martin v. State of Indiana (NFP)

Michael Felton v. State of Indiana (NFP)

Posted by Marcia Oddi on December 31, 2007 02:46 PM
Posted to Ind. App.Ct. Decisions

Law - Does anyone else find this off-putting?

On Dec. 14, 2007, I received a letter from LexisNexis headed "Martindale-Hubbell Institutes a Peer Review Ratings Administration Fee." About half-way into the letter about its "database of rated lawyers," the letter announces:

In order to provide this same level of service to the Bar, we have found that it is necessary to institute an annual nominal administration fee to cover these costs. The $50 administration fee will be billed annually to all our rated lawyers. * * *

This administration fee has no impact in the actual rating received by a lawyer. Martindale-Hubbell Peer Review Ratings are established by lawyers. The legal community respects the accuracy of a rating because it knows that its own members are directly involved in the process. Martindale-Hubbell facilitates this process and does not determine the actual attorney rating.

We have provided you with easy payment options.

"Say what?" I asked myself. After more than 30 years M-H is hoping to charge me $50 a year for my AV rating? And they seem to be trying to catch this on the downslide, I reflected to myself -- there are many more ways to find out about lawyers nowadays than there ever have been in the past. Why do they think I am going to pay them $50 a year? I filed the letter away.

Today, Dec. 31st, 2007, I received another letter from LexisNexis, this one headed "Martindale-Hubbell Peer Review Ratings Administration Fee -- 2nd Notice." This one, which is less pleasant that the first letter, begins:

Dear Marcia J. Oddi

We recently notified you of an annual $50 administration fee associated with the maintenance and upkeep of your Martindale-Hubbell Peer Review Ratings listing displayed throughout the Martindale-Hubbell Legal Network. While we assume this nominal fee remains unpaid through an oversight, you should know that if it is not paid by 1/11/08, your rating will no longer be displayed in our online and print resources, This would not eliminate your coveted rating; however, it would exclude your rating from being seen by over 1 million visitors that reference Martindale-Hubbell when evaluating and selecting a legal resource.

[ILB - emphasis added]

Conclusion? The M-H list in the future will no longer be a comprehensive list of rated lawyers, but a less useful list of those lawyers who are rated and who have elected to pay a minimum of $50 a year to LexisNexis for the privilege of having their rating published by M-H.

Posted by Marcia Oddi on December 31, 2007 01:31 PM
Posted to General Law Related

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, Jan.. 3rd:

9:00 AM - Tonda Nichols v. Rex Minnick - In this action by a seller to recover a commission she had paid to a broker, the trial court entered judgment for the broker. The Court of Appeals affirmed in an unpublished memorandum decision, holding the broker's failure to disclose to the seller that he lent money to the buyer to complete the transaction was not a serious breach of his duty to the seller. Nichols v. Minnick, 53A01-0606-CV-268 (Ind. Ct. App. April 13, 2007), vacated. [See ILB entry here - 5th case] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for Nichols; William Jenner and Darrell Auxier both of Madison, IN. Attorney for Minnick; Robert Price of Bloomington, IN.

9:45 AM - Dawn E. McDowell v. State - Over McDowell's objection, the Howard Circuit Court gave a jury instruction regarding intent to kill. The jury found McDowell guilty of voluntary manslaughter, and she was sentenced to forty years. The Court of Appeals affirmed the conviction and sentence in McDowell v. State, 872 N.E.2d 689 (Ind. Ct. App. Aug. 31, 2007), vacated. [See ILB entry here - 5th case] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for McDowell: Brent R. Dechert, Kokomo, IN. Attorney for State: Justin F. Roebel, 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:

None scheduled.

Posted by Marcia Oddi on December 31, 2007 10:59 AM
Posted to Upcoming Oral Arguments

Ind. Courts - "Lake Judges, lawyers look to improve system's efficiency"

Bill Dolan writes today in the NWI Times:

CROWN POINT | Lake County judges and lawyers are discussing ways to make local courts more efficient, thorough and less time-consuming before efficiency is thrust upon them by downstate officials.

"Committees of judges and attorneys are meeting to discuss what we do good and what we can do better," said Michael Pagano, a Lake Superior Court magistrate and president of the Lake County Bar Association. "It's something we have to do if we want to be masters of our own fate."

Pagano said court officials have little taste for suggestions to shrink or centralize the county's system of 27 criminal, civil, juvenile, family and municipal courts. But all officials know better efficiency is needed, he said.

State and county records indicate it costs the public more than $24 million to operate all county courts annually.

The National Center for State Courts of Williamsburg, Va., said in a study a year ago the courts' overlapping jurisdictions result in confusion and duplication of public cost.

It suggested abolishing city and town courts in Crown Point, Gary, Hammond, East Chicago, Hobart, Lake Station, Lowell, Merrillville, Schererville and Whiting and creating a centralized county court system.

The center's plan would create a chief judge with the power to move other judges and court personnel to wherever they are needed. Currently, judges remain in specific courts through their careers. The study states that system is too inflexible and results in unfair caseload burdens. * * *

The bar held an all-day seminar this fall on the topic and surveyed 124 judges and attorneys who participated.

Three out of four are opposed to abolishing city and town courts, and more than half are opposed to consolidating city and town courts into the Superior/Circuit Court system.

Some 56 of the participants said they favored closing the less frequently used Superior Courts in Gary, Hammond and East Chicago. More than half favored creating specialized courts for the collection of bad debt and the resolution of inheritance, child support and custody disputes.

Posted by Marcia Oddi on December 31, 2007 10:45 AM
Posted to Indiana Courts

Sunday, December 30, 2007

Ind. Gov't. - Still more on: Lake County printing contracts questioned

Updating this ILB entry from Feb. 27, 2006, John Byrne of the Gary Post-Tribune reports that problems continue with bidding printing contracts in Lake County. Some quotes:

CROWN POINT -- Lake County officials are investigating whether two bidders for government printing contracts illegally joined forces in an effort to freeze out a third company vying for the work.

County Prosecutor Bernard Carter said Thursday he had been notified of allegations that Hammond printing companies A-1 Union Graphics and Sheffield Press Printers & Lithographers had colluded in their bids for 2007 contracts.

"Right now the information we have is incomplete," Carter said. "The situation definitely deserves further investigation. We have been in contact with the Attorney General's Office to determine which agency will proceed with that investigation."

Officials from A-1 and Sheffield could face civil or criminal charges if it is determined they violated Lake County's non-collusion agreement, Carter said.

Between them, Sheffield and A-1 won three classes of printing contracts in 2007, deals worth a total of $140,795.

In each case, they underbid Haywood Graphics of Lafayette.

This fall, Haywood officials presented the county copies of the bid packets submitted by A-1 and Sheffield last year.

It appears the same person filled out each bid, according to county attorney John Dull.

"If the same person filled out the Form 5 for A1 Union Graphics and for Sheffield, then there was collusion," Dull wrote in a letter to company officials.

The A-1 and Sheffield bids were also notarized on the same date, by the same Illinois notary. * * *

The printing bids have been contentious in recent years.

In late 2005, Shonk complained the county's bid proposals were obsolete, asking bidders to estimate costs to print forms the county had not used in years.

Shonk argued the out-of-date proposals gave Haywood, which had won the printing contracts several years running, an unfair advantage, because Haywood officials could submit artificially low estimates for products they knew they would never be asked to produce.

County purchasing officials undertook an audit of all bid forms, and A-1 became much more competitive in winning printing contracts thereafter.

Posted by Marcia Oddi on December 30, 2007 09:13 AM
Posted to Indiana Government

Saturday, December 29, 2007

Ind. Courts - "Four lawyers seeking two Clark judicial seats"

Larry Thomas reports today in the Clark/Floyd County News & Tribune in a story that begins:

Four candidates already have announced they will seek the judgeships in a pair of Clark County courts where judges are retiring at the end of next year.

Judge Cecile Blau had already started campaigning for a third six-year term in Clark Superior Court 2 when she surprised supporters in October by announcing that she was withdrawing her candidacy and would retire at the end of next year.

Clark Superior Court 3 Judge Steve Fleece, who has served on the bench since 1985, announced several years ago that he would not seek another term.

The old Clark County Court was created in 1976 and Fleece and Sam Gwin were the only judges to preside there. In 1995, the Indiana General Assembly elevated County Court to Superior Court 3.

Senior Judge Jerry Jacobi and attorneys Andrew Adams and Dan Moore all have announced that they are running for the seat Blau will vacate in Superior Court 2. Clarksville Town Court Judge Joe Weber is the only candidate to announce his intention to run for the seat Fleece is leaving.

The filing period for candidates begins Jan. 23 and concludes at noon Feb. 22.

Both retiring judges and all four candidates are Democrats.

Posted by Marcia Oddi on December 29, 2007 02:40 PM
Posted to Indiana Courts

Ind. Courts - "Carroll County judge charged with public intoxication"

The Lafayette Journal & Courier reported on Dec. 26th:

A misdemeanor charge of public intoxication was filed today against a Carroll County judge.

Judge Donald E. Currie of Carroll Circuit Court appeared for an initial hearing this afternoon in Boone Superior Court 2, where he is charged with a Class B misdemeanor, according to court staff.

A Boone County sheriff's deputy arrested Currie about 9:20 p.m. Sunday on Interstate 65 near Boone County Road 400 East. Further details of the arrest were not available today.

A more comprehensive story appeared in yesterday's Lebanon Reporter, under the headline "Boone County officer arrests Carroll County judge: A Carroll County judge had his initial hearing for public intoxication Wednesday." Drew Stone reports:

A Carroll County judge had his initial hearing for public intoxication Wednesday.

Circuit court judge for Carroll County Donald E. Currie, 49, Delphi, is charged in Boone County for a Class B misdemeanor of public intoxication. His case is in Boone County Superior Court II.

According to his case file, Currie was arrested by the Boone County Sheriff’s Department Sunday evening.

BCSD Deputy Scott Rolston reported he was driving onto Interstate 65 northbound from Indiana 267 when he noticed a black Volkswagen parked on the shoulder of the ramp and a man behind the car, appearing to be vomiting over the guardrail.

Rolston approached Currie, who said he was sick.

Rolston reported that Currie carried a strong odor of alcohol, and had red and blood shot eyes and spoke with a slur.

When Rolston asked Currie how much he had to drink, the Carroll County judge reportedly replied, “Too much.” Rolston reported Currie went on to say he was driving from Indianapolis and pulled over because he realized he should not be driving and that he had been parked on I-65 for awhile.

Rolston reported he then tried to have Currie perform a field sobriety test, but Rolston said he was unable to see the pen Rolston was holding which he was using for a field of vision test. Rolston then retrieved his blood-alcohol test kit, but Currie refused to take it.

Currie was then placed under arrest for public intoxication and taken to Boone County Jail. It was reported that on the ride to jail, Currie asked if they could stop to get some coffee. Currie also reportedly asked to get some coffee so he could “sober up” once they arrived at the jail.

If Currie is found guilty on the misdemeanor charge, he could face up to 180 in prison and fines of $1,000. His bench trial is set for March 28, 2008.

A Letter to the Editor from Judge Currie appears in today's Journal & Courier:

Currie: I take full responsibility

It is with regret and great embarrassment that I write this letter.

On Dec. 23 I was arrested for public intoxication in Boone County, Ind. It is an offense and conduct for which I take full responsibility. I offer no mitigation or extenuation.

There is no way to make it better or to make it go away; nor is there any reason to offer up any excuses. I made a big mistake, and for that, I am truly sorry. My conduct was shameful, and I am fully prepared to accept the consequences of my actions.

While I am embarrassed personally and professionally, I am most embarrassed and regret the pain and agony that I have brought upon my family. I also deeply regret that my conduct may reflect poorly on my community, a community that I have come to love, a community that deserves nothing but the best from those who serve it.

So, my one and only request is that any ill feelings and/or resentment be reserved for me, and me alone.

I hope and pray that this very hard lesson, one that I believe has purpose in my life, will make me a better, stronger and wiser person. I doubt that this will be the last error I make in this life, but I am confident that I will not repeat the same mistake.

Again, I am truly sorry for my behavior.

Judge Don Currie

Delphi

See this Dec. 18th ILB entry and the links re judges' arrests for drunken driving in Illinois and Marion County.

Posted by Marcia Oddi on December 29, 2007 02:18 PM
Posted to Indiana Courts

Law - "Attorneys often avoid medical malpractice suits because California limits 'pain and suffering' awards to $250,000"

The caption under the photo or a doctor in surgical gear on today's LA Times front-page reads:

Once an advocate of the California medical malpractice law, Dave Stewart, an anesthesiologist, now opposes it. His 72-year-old mother died after a double knee-replacement surgery last April, he and his sisters decided to sue. But no one would take the case, saying it wasn't worth the money.

From the lengthy story, reported by Daniel Costello:

Stewart and his two sisters decided to sue, and they approached two dozen lawyers. One after another declined to take the case, always for the same reason: It wasn't worth the money.

In 1975, California enacted legislation capping malpractice payments after an outcry from doctors and insurers that oversized awards and skyrocketing insurance rates were driving physicians out of the state.

The law limited the amount of money for "pain and suffering" -- usually the physical and emotional stress caused from an injury -- to $250,000. There is no limit on what patients can collect for loss of future wages or other expenses.

Over the years, it has been easy to quantify the effects of the law, known as the Medical Injury Compensation Reform Act, or MICRA. In the years since the law was enacted, malpractice premiums in California have risen by just a third of the national average, and doctors say the law now helps attract physicians to the state. Proponents also say it discourages frivolous lawsuits.

Thirty states have enacted similar legislation. Two Republican presidential candidates -- Mitt Romney and Rudolph W. Giuliani -- have recently endorsed the approach as a possible national model.

It's been harder to tally the law's costs. Critics say it is increasingly preventing victims and their families from getting their day in court, especially low-income workers, children and the elderly. Their reasoning: The cap on pain and suffering has never been raised nor tied to inflation.

Meanwhile, the costs of putting on trials are often paid by attorneys and continue to rise each year. That means those who rely mainly on pain and suffering awards -- typically people who didn't make much money at the time of their injury -- are increasingly unattractive to lawyers.

Several states have set their malpractice caps considerably higher than California's because of worries that they affected poorer patients the most. Some state courts have begun to examine the fairness of their malpractice laws, especially those not tied to inflation. California lawmakers have rarely reconsidered the state's malpractice legislation.

Yet a Times analysis of state court records, physician payment data and insurer financial records suggests that the cap is increasingly preventing families such as the Stewarts from getting their day in court. * * *

Some state courts have struck down malpractice caps that didn't rise over time. Last month, an Illinois circuit court judge ruled unconstitutional a 2005 state law that caps noneconomic damages in medical liability cases. The case is on appeal.

In 2006, a Louisiana appeals court ruled that its state malpractice cap, established in 1975, did not adequately compensate patients and needed to be raised to $1.6 million. The ruling was overturned this year by the state's Supreme Court.

Some families who succeed at trial in California are often surprised at how little money they see in the end.

Posted by Marcia Oddi on December 29, 2007 11:26 AM
Posted to General Law Related

Ind. Courts - And another mayorial election contest? It seems so

First it was Terre Haute. Then yesterday Muncie. Today it is Anderson, according to this report by Justin Schneider in the Herald Bulletin. Some quotes:

Opponents of Kris Ockomon have mounted a legal challenge to his eligibility as mayor just four days before he’s set to take office.

On Friday, a temporary restraining order and a request for permanent injunction were filed against Ockomon, challenging his eligibility as a candidate. Ockomon is scheduled to be sworn-in on Tuesday, but the Madison County courts will be closed until Jan. 2. * * *

Lisa Patton, director of public relations for Ockomon’s transition team, issued a statement Friday, on Ockomon’s behalf, concerning the challenge.

“Today’s attempt by some members of the outgoing administration to stop the inauguration of the city of Anderson’s new mayor is frivolous and embarrassing to the community,” the statement read.

“This is evident by Judge Anderson’s immediate decision to deny the attempt to file a last-minute court action before the inauguration. Mayor-elect Ockomon is competent he has met the necessary residency requirements and is fully eligible to serve as the mayor of Anderson.”

State Sen. Tim Lanane, D-District 25, who was appointed city attorney by Ockomon, agreed that the judge’s decision was correct.

“The court denied what I think is the most important part of the case, which is to prevent Kris from being sworn in next Tuesday,” Lanane said Friday. “The court ruled correctly in denying that temporary restraining order. It was a last-minute attempt to subvert the will of the people of the city of Anderson.”

Lanane said the injunction could not stop the swearing in and will be decided through the courts, should the plaintiffs elect to proceed.

The complaints, based on Ockomon’s residency, were brought by Carol Auker, Nick Vores, Doug Zook, Larry Davis and John Suko, identifying themselves as “registered voters.” Auker is a longtime member of the Republican party; Vores is the outgoing Anderson street commissioner; Zook is outgoing parks department superintendent; Davis is director of the Anderson Animal Shelter and reportedly, though no official word has been given, will be replaced by an Ockomon appointee; and Suko‘s wife, Gracie, is a Smith administration employee.

Ockomon’s residency was brought into question early and often during the election cycle that ended Nov. 6. The Anderson Police Department detective was living outside the city limits at 4669 Woodscliff Circle, but says he rented a house at 420 E. 36th St. in Anderson in order to meet eligibility requirements. Under code, a candidate for mayor must reside in the city at least one year prior to the election.

Posted by Marcia Oddi on December 29, 2007 11:18 AM
Posted to Indiana Courts

Ind. Gov't. - "Four lawyers will do city work for Jeffersonville"

Ben Zion Hershberg reports today in the Louisville Courier Journal:

In an effort to control the city's legal costs, Jeffersonville Mayor-elect Tom Galligan is appointing four lawyers to handle municipal business rather than rely primarily on the services of one city attorney.

"They will work as a team," Galligan said of his plans for the city's law department. Each lawyer will work from five to 15 hours a month on city business, he said. * * *

He said he hopes the new structure will save the city money. There have been high costs recently for what is supposed to be a part-time job. The city attorney also maintains a private practice.This year, for example, the city law department spent more than $90,000 for lawyers, including city attorney Les Merkley, who has a $45,000-a-year base salary. The city also has paid $32,000 for the law department's paralegal.

The four lawyers who will make up the new law department will be paid $100 per hour. They're expected to provide their own secretaries and offices. * * *

If one of the lawyers needs extra hours for city work, he must get approval from a three-member litigation committee to be appointed by Galligan. If all of a lawyer's hours aren't used in a month, the unused time will be added to what's available the next month.

Galligan said the lawyers' work will be coordinated in periodic meetings he will have with them.

Posted by Marcia Oddi on December 29, 2007 11:13 AM
Posted to Indiana Government

Friday, December 28, 2007

Ind. Decisions - Transfer list for week ending December 28, 2007

Here is the Indiana Supreme Court's transfer list for the week ending December 28, 2007.

There were no transfers granted this week.

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 December 28, 2007 02:55 PM
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 13 today (and 21 NFP)

Additional summaries may follow.

For publication opinions today (13):

In Paul McMurray v. Nationwide Mutual Insurance Co. , a 12-page opinion, Judge Mathias writes:

At issue in this appeal is whether “other insurance” clauses in the polices of both Nationwide and GuideOne Elite Insurance Company (“GuideOne”) are mutually repugnant, requiring each insurer to be liable for a prorated amount of the damages. We reverse and remand for proceedings consistent with this opinion. * * *

If this court were to attempt to harmonize and give effect to both Nationwide’s escape clause and GuideOne’s excess liability clause, then McMurray would have no coverage under Nationwide’s policy and only excess liability under GuideOne’s policy.5 Indiana law is clear that when insurance coverage provisions are mutually repugnant, they should be ignored, and each insurer should be liable for a prorated amount of the resultant damage not to exceed its policy limits. Id. As in Indiana Ins. Co., Nationwide’s escape clause and GuideOne’s excess liability clause are irreconcilable. Therefore, the Lamb-Weston rule must be applied, and both clauses should be disregarded, making both GuideOne and Nationwide primarily liable on a prorated basis for McMurray’s proven damages at issue. Reversed and remanded for proceedings consistent with this opinion.

[ILB note: See footnote 5 on p. 12]

In Mark White v. Carol White , an 11-page opinion, Judge Bailey writes:

Case Summary: Appellant-Respondent Mark White (“Mark”) appeals the denial of his Motion to Correct Error, which challenged the denial of his motion to set aside an income withholding order for child support receivable by Appellee-Petitioner Carol White (“Carol”) and the State of Indiana. We reverse and remand.

Issue: Mark presents five issues for review, which we consolidate and restate as a single issue: whether he is entitled to equitable relief from a child support withholding order when clerical error caused claimed deductions in excess of that legally allowable. * * *

Neither the Guidelines nor statutory authority contemplate the tender of virtually all of one parent’s income as child support, regardless of the number of children.

Moreover, an income withholding order is not to be utilized to deprive an obligor of his or her means of self-support. * * *

Finally, the trial court’s determination that Mark knew he was ordered to pay $266.00 weekly is contrary to the evidence of record. Mark testified that he did not receive a copy of the wage withholding order. Carol testified that she never objected that she was receiving less than the court-ordered amount of child support. It defies logic to infer that had Mark known he was ordered to pay virtually all his disposable salary as child support, he would have merely acquiesced.

In light of the foregoing, the trial court is instructed on remand to correct the child support withholding order to reflect that the deduction was to be $266.00 bi-weekly (from the date of the order until modified on January 13, 2005), and to calculate the child support arrearage, if any, consistent with this opinion.

Pierre Fisher v. State of Indiana In Dreaded, Inc. v. St. Paul Guardian Insurance, et al , a 12-page opinion, Judge Kirsch writes:

Dreaded, Inc. (“Dreaded”) appeals the trial court’s grant of summary judgment in favor of St. Paul Guardian Insurance Company, St. Paul Protective Insurance Company, and St. Paul Fire and Marine Insurance Company (collectively “St. Paul”) holding that St. Paul is not liable for environmental cleanup defense costs incurred prior to receiving notice of potential liability. Dreaded contends that the trial court erred in holding that its delay in notifying St. Paul of its claim was a material breach of Dreaded’s comprehensive general liability policy (“policy”) with St. Paul. Dreaded raises two issues, which we consolidate and restate as: whether the trial court erred in entering summary judgment finding that Dreaded cannot recover defense costs that it incurred prior to notifying St. Paul. Affirmed in part, reversed in part, and remanded for further proceedings.

Travis Marlett v. State of Indiana

Willie Eaton v. State of Indiana

Heather Parmeter v. Cass Co. Dept. of Child Services - "However, we conclude that the trial court’s findings do not support the judgment. In support of the CHINS determinations, the trial court listed only one fact-specific finding, namely, the court’s observation of Mother’s expert witness as he viewed a video tape of Mother “hysterically” questioning the children and referring to Father as a “bad daddy.” That factual finding, without more, is insufficient to support the CHINS determinations. Thus, we remand for the trial court to make proper findings and conclusions in support of its judgment."

Kerry L. Meredith v. State of Indiana

In Filter Specialists, Inc. v. Dawn Brooks, Charmaine Weathers, and Michigan City Human Rights Commission , a 55-page, 2-1 opinion (including a 16-page dissent by Judge Vaidik beginning on p. 40), Judge Robb writes:

Filter Specialists, Inc., appeals from the trial court’s order affirming the decision of the Michigan City Human Rights Commission (the “Commission”), which found Filter took adverse employment action against two employees, Dawn Brooks and Charmaine Weathers (referred to collectively as the “Employees”), based on their race.1 Filter raises five issues, which we restate as: (1) whether Filter was subject to the Commission’s jurisdiction; (2) whether the Commission’s decision cannot stand based on the Employees’ failure to introduce the local ordinance proscribing racial discrimination by employers; (3) whether the trial court abused its discretion in granting the Commission’s motion to be joined as a party; (4) whether sufficient evidence supports the Commission’s decision; and (5) whether the evidence supports the Commission’s award of back pay. We conclude Filter has waived its jurisdictional argument, the Employee’s failure to introduce the applicable ordinance is not fatal, and the trial court properly joined the Commission as a party. However, concluding the Commission’s decision was not supported by sufficient evidence, we reverse. * * *

We conclude that Filter was subject to the Commission’s jurisdiction and that the Employees’ failure to introduce the local ordinance into evidence is not fatal, as we take judicial notice of it at this time. We further conclude that the trial court properly joined the Commission. Finally, we reverse, concluding that the Commission’s decision was not supported by substantial evidence.

BRADFORD, J., concurs.
VAIDIK, J., dissents with opinion. [which begins] I respectfully dissent from the majority’s decision to reverse the trial court’s order affirming the Michigan City Human Rights Commission’s (“Commission”) determination that Filter Specialists, Inc. (“Filter”) unlawfully terminated the employments of Dawn Brooks (“Brooks”) and Charmaine Weathers (“Weathers”). I disagree with the majority’s conclusion that the Commission’s decision was not supported by sufficient evidence, and I believe that the majority’s burden-shifting analysis requires clarification. In addition, I write to express my position on one preliminary matter addressed by the majority. Specifically, I believe that the majority’s resolution of Filter’s challenge to the Commission’s recognition of local law, while reaching the correct result, is problematic.

In The State Group Industrial (USA) Unlimited v. Murphy & Associates Industrial Services , a 12-page opinion, Judge Robb writes:

The State Group Industrial (USA) Limited (“State Group”) appeals from the trial court’s judgment awarding State Group actual damages but denying State Group’s request for relief under Indiana Code section 34-24-3-1. State Group raises the sole issue of whether the trial court improperly denied it relief under this statute based on a contract provision. Concluding the Contract does not proscribe the relief sought by State Group, we remand with instructions that the trial court determine whether and to what extent damages under this statute are warranted. * * *

Recovery under the Crime Victims Statute is not based on a breach of contract, but must be predicated on an independent tort. * * *

The indemnification clause in this case lacks the requisite specificity, as it in no way refers to criminal or fraudulent conduct on the part of M&A. In this sense, it “contains no clear statement that would give [State Group] notice of the harsh burden that complete indemnification imposes.” Exide Corp. v. Millwright Riggers, Inc., 727 N.E.2d 473, 480 (Ind. Ct. App. 2000), trans. denied. We hold that the Contract did not protect M&A from liability under the Crime Victims Statute stemming from M&A’s intentional misrepresentations.

Conclusion: We conclude that the Contract did not explicitly protect M&A from liability for damages stemming from its own fraudulent representations. Having found that the Contract did not preclude damages under the Crime Victims Statute, we remand to the trial court with instructions that it exercise its discretion in determining whether to award damages and the amount of any damages.6 See MCS LaserTec, Inc. v. Kaminski, 829 N.E.2d 29, 35 (Ind. Ct. App. 2005) (“[T]he award of damages above the actual damages is within the discretion of the trial court.”). 5 Even in the absence of a specific and explicit indemnification statement, we have upheld release clauses where the damages “are inherent in the nature of the activity.” Anderson v. Four Seasons Equestrian Ctr., Inc., 852 N.E.2d 576, 585 (Ind. Ct. App. 2006), trans. denied. We are not willing to hold that the risk that a party to a contract will commit the crime of deception is inherent in the nature of business transactions. 6 As the trial court has already heard all the relevant evidence, the trial court should make this determination without holding any additional hearings.

In In the Matter of the Adoption of Z.D., an 8-page opinion concerning grandparent visitation, Judge Mathias writes:

Karen Dawson (“Dawson”) filed a petition to adopt her grandchild, Z.D., in Benton Circuit Court. Before her petition was adjudicated, the Tippecanoe Circuit Court granted Z.D.’s foster parent’s adoption petition. Dawson then filed a motion to correct error and a petition to intervene in the Tippecanoe Circuit Court, but her motions were denied. Dawson appeals and argues that the Benton Circuit Court had exclusive jurisdiction over the adoption of Z.D., and therefore, the Tippecanoe Circuit Court’s decree of adoption is void. We affirm. * * *

From the record before us, it appears that the TCDFC was acting in Z.D.’s best interests when it refused to consent to the adoption of Z.D. by Dawson. Dawson’s son and Z.D.’s father is a convicted child molester whose parental rights have been terminated, yet Dawson indicated that she would allow her son to maintain contact with Z.D. Appellant’s App. pp. 43-44, 47. For this reason, the Benton County Department of Child Services also opposed Dawson’s petition to adopt Z.D. Appellant’s App. p. 51.

We find further support for our conclusion in the following well-settled principles of Indiana law. Grandparent visitation rights survive the adoption of the child by a stepparent or a “person who is biologically related to the child as” a grandparent, a sibling, an aunt or uncle, or a niece or nephew. Ind. Code § 31-17-5-9 (1998). However, “[i]f a person not included in this list adopts a grandchild, the grandparent no longer has a right to seek visitation.” In re Guardianship of J.E.M., 870 N.E.2d 517, 521 (Ind. Ct. App. 2007). Therefore, Dawson no longer has a right to seek visitation with Z.D.

For all of these reasons, we conclude that Dawson was not entitled to notice of Z.D.’s foster parent’s adoption petition and the Tippecanoe Circuit Court properly denied Dawson’s motion to correct error and motion to intervene. Furthermore, the Benton Circuit Court did not err when it dismissed Dawson’s petition to adopt Z.D. Affirmed.

Jeffrey Douglas v. State of Indiana

In Donald L. Garriott, et al v. Edward L. Peters, et al , a 20-page opinion, Judge Robb writes:

Case Summary and Issues: Donald, Larry, Mark, and Dennis Garriott appeal the trial court’s denial of their motion for summary judgment and its subsequent judgment following trial denying their claim for title by adverse possession and resolving a boundary dispute between them and Edward Peters and Patsy Christian (referred to collectively as “the Appellees”). The Garriotts raise four issues, but we need address only two: whether the trial court improperly denied the Garriotts’ motion for summary judgment and whether the trial court erred in finding that the Garriotts failed to prove the elements of their adverse possession claim. Although we conclude the trial court properly denied the Garriotts’ motion for summary judgment, we also conclude the trial court improperly found that the Garriotts failed to establish title by adverse possession. We therefore reverse. * * *

Conclusion: Although we conclude the trial court properly denied the Garriotts’ motion for summary judgment, we also conclude that the trial court’s judgment following trial was clearly erroneous. Reversed.

NFP civil opinions today (9):

In the Matter of M.P.T. v. State of Indiana (NFP)

Nancy J. McDonough v. Scott McDonough (NFP)

Regina Fender v. Bartholomew Co. Dept. of Child Services (NFP)

Horace Franks, Jr. v. Cheryl Rush (NFP)

Parkland, Inc. d/b/a Village Green Mobile Home Park v. Alanya (Eisenmenger) Cunningham (NFP)

Term. of Parent-Child Rel. of A.B. and M.B., IV, and M.B. v. Marion Co. Dept. of Child Services, and Child Advocates (NFP)

Glory (Jordan) Harris v. Jonathan J. Jordan (NFP)

Matthew McHugh v. Rebecca L. Lockard, et al (NFP)

Carl L. Peters v. J. Russell Sutton (NFP)

NFP criminal opinions today (12):

Stanley Mooney v. State of Indiana (NFP)

Tyrone Grayson v. State of Indiana (NFP)

Noel E. Shuck v. State of Indiana (NFP)

James A. Hayes v. State of Indiana (NFP)

Kenan M. Powell v. State of Indiana (NFP)

Robert G. Anderson v. State of Indiana (NFP)

Calvin T. Brown v. State of Indiana (NFP)

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

Rodger W. Newport v. State of Indiana (NFP)

Leslie P. McGuire v. State of Indiana (NFP)

Haywood Rice v. State of Indiana (NFP)

State of Indiana v. Cynthia Cambron (NFP)

Posted by Marcia Oddi on December 28, 2007 01:53 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "The Pros and Perils of Pro Se"

Remember this ILB entry from Dec. 24th? "Dress code suit costs couple $40,931.50: Anderson plaintiffs' predicament illustrates the risks of being your own lawyer"

The ruling by Judge Tinder, and the discussion of it -- including the ILB's contributions -- are highlighted in this just-posted WSJ Law Blog entry today, headed "Open Thread — the Pros and Perils of Pro Se." It will be interesting to follow the blog readers' comments.

Posted by Marcia Oddi on December 28, 2007 11:34 AM
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Another mayorial election contest? It seems so

The Muncie Star-Press reports today, in a story by Douglas Walker, that "It's not over." Some quotes:

Democratic mayoral nominee James Mansfield announced late Thursday afternoon he was filing a petition seeking a "special election" in Muncie's Precinct 46, where a recount commission last week disallowed 19 ballots, making Republican Sharon McShurley the next mayor.

The recount commission had discovered 19 absentee ballot cards in Precinct 46 that were not endorsed with the initials of both a Republican and a Democratic election worker, as required by Indiana law. The ballots were missing the Republican initials.

The three-member recount commission on Dec. 20 officially certified McShurley as the winner in the Muncie mayoral race, reversing earlier results that had Mansfield winning by nine (and later 11) votes. * * *

Mans-field said the special election he's calling for -- only involving registered voters in Precinct 46 -- would be conducted at the former Claypool Elementary School, the eastside precinct's usual polling place.

"The voters in Precinct 46 exercised their constitutional rights to cast a ballot in this election only to be disenfranchised by the commission based on an error made by a Republican appointee in the Republican controlled county clerk's office," the Democrat said in the press release. "All voters in Precinct 46 deserve to have their votes counted."

Indianapolis attorney Bill Groth, who represents the plaintiffs in the voter ID suit to be argued before the SCOTUS in early January, and who begins his note to the ILB this morning by disclosing "I have provided informal assistance to the attorneys representing Mansfield", has sent the following:

The really interesting aspect of this from a lawyer’s perspective is whether the contest petition will be considered timely, since it clearly was filed outside the statutory time limits. On the other hand, Mansfield had no reason or grounds to file a contest after the election since he was 11 votes ahead and was certified by the clerk to be the winner. It wasn’t until the recount had been completed last week that his Republican opponent was declared the winner, based entirely on the disallowance of some 19 absentee ballots due to the missing initial, and only then did he learn of the problems with the absentee ballots from one precinct.

One of the arguments Mansfield’s attorneys will likely make is that the Court has jurisdiction under these circumstances to decide the issues raised by the contest petition, notwithstanding its facial untimeliness, based on equitable principles. The Supreme Court held in Pabey v. Pastrick that the time limits in the election contest and recount statutes can be extended under unusual or extraordinary circumstances, and it will be interesting to see if the court buys into that argument and finds that it has jurisdiction. This is a case that could well be on its way to our supreme court.

Posted by Marcia Oddi on December 28, 2007 11:19 AM
Posted to Indiana Courts

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

In U.S. v. Fernando Figueroa-Espana (SD Ind., Judge Hamilton), a 15-page opinion, Judge Bauer writes:

After the district court denied his motion to suppress evidence, Fernando Figueroa- Espana pleaded guilty to one count of possession with intent to distribute five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii). He reserved the right to appeal the district court’s denial of his motion to suppress and his sentence. For the following reasons, we affirm. * * *

Figueroa-Espana argues that the district court (1) erred in denying his motion to suppress evidence uncovered after an unconstitutional search; and (2) improperly considered the fact that he made a motion to suppress in calculating his sentence. We address these issues in turn.

Posted by Marcia Oddi on December 28, 2007 11:10 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Fulton Circuit Court Judge Morton to retire

The ILB has received word that Judge Douglas B. Morton has announced today that he will retire at the end of 2008. Morton has been judge of the Fulton Circuit Court since 1978.

Posted by Marcia Oddi on December 28, 2007 09:24 AM
Posted to Indiana Courts

Environment - More on "Randolph County could zone 220,000 acres for CAFOs"

Updating this ILB entry from Nov. 25th, about a proposed new "intensive agricultural district " that would occupy 75.88 % of the county, Seth Slabaugh of the Muncie Star-Press reports today:

WINCHESTER -- The Area Planning Commission approved a controversial ordinance Thursday night to allow concentrated animal feeding operations (CAFOs) in a new intensive agricultural district covering about 220,000 acres of Randolph County.

Last month, the commission spent more than two hours defending the proposed ordinance at a meeting attended by dozens of opponents living in rural areas.

The opponents, concerned about air and water pollution and loss of property values, accused the commission of "choosing pigs over people" and turning 75 percent of the 289,813-acre county into an industrial park for CAFOs.

On Thursday night, the meeting room at the Randolph Center for Family Opportunity quickly filled with 50 spectators, mostly opponents of the ordinance. About fifty others waiting in the hallway presented a petition asking for the meeting to be postponed because they couldn't hear the proceedings. * * *

Fred Luddington argued unsuccessfully to include odor-control "best management practices" in the ordinance. He then suggested that Randolph County just get rid of CAFOs, to which farmer Drew Cleveland responded, "We should get rid of gun shops, too."

Luddington owns a gun shop in Parker City.

Union City Mayor-elect Bryan Conklin convinced fellow commission members to increase the minimum distance between CAFOs and dwellings to 1,324 feet and distance between CAFOs and schools to a half-mile.

He was unsuccessful in convincing the commission to increase the distance between communities and CAFOs beyond the 1-mile limit set in the draft ordinance.

The proposed ordinance will be forwarded to county commissioners for final action.

Posted by Marcia Oddi on December 28, 2007 08:09 AM
Posted to Environment

Courts - "Ohio Supreme Court upholds cap on damages"

From a story by Kimball Perry in the Cincinnati Enquirer:

The Ohio Supreme Court upheld a state law Thursday that limits how much a person injured by a defective product can collect in pain-and-suffering damages - a nationally watched case that pitted an Anderson Township woman against a New Jersey drug company.

The law's authors said the case would help improve Ohio's reputation as a pro-business state.

But critics said the ruling would make it harder for ordinary Ohioans to hold big companies accountable. * * *

The majority opinion in the 5-2 ruling, written by Chief Justice Thomas J. Moyer, said the Ohio law as revised did not violate the constitutional rights of injured parties to trial by jury, to a remedy for their injuries or to due process and equal protection. * * *

[Plaintiff] challenged the law change in court, saying a jury - not Ohio lawmakers - should determine how much someone should be awarded for pain and suffering and that the law that caps the monetary damages violates Ohio's law allowing a jury to hear the case.

The court ruled that the law that caps those damages doesn't violate citizens' rights to have the issues decided by a jury.

Ohio's "General Assembly is responsible for weighing those concerns and making policy decisions; we are charged with evaluating the constitutionality of their choices," Chief Justice Thomas Moyer wrote in the opinion. * * *

The case is being watched throughout the country because Ohio's law change that caps the "pain and suffering" damages is being considered by other states. Some already have adopted caps.

The U.S. Chamber of Commerce, National Association of Manufacturers and the National Federation of Independent Business Legal Foundation joined in urging the court to uphold the law.

Groups urging the court to overturn it included the Ohio Academy of Trial Lawyers, the Ohio Conference of the National Association for the Advancement of Colored People and Mothers Against Drunk Driving. * * *

In his dissent, Justice Paul Pfeifer blasted the majority.

"If the damage cap of $250,000 is constitutional, why can't the General Assembly limit damages for claims they do not favor to $100,000? Or $1,000? Or $10?" Pfeifer wrote. "Under this court's reasoning, there is nothing in the Ohio Constitution to restrain the General Assembly from limiting noneconomic damages to $1."

Posted by Marcia Oddi on December 28, 2007 08:04 AM
Posted to Courts in general

Ind. Decisions - More on "Church’s admission of abuse not enough, accuser says"

Updating this ILB entry from Dec. 18th, which included this quote from a story by Robert King in the Indianapolis Star:

The scene today in Marion Superior Court could become increasingly common: the archdiocese squaring off in court against a former parishioner who claims the church knew the Rev. Harry Monroe was a danger to children but did nothing to spare them from harm.

In addition to John Doe NM, 12 men who claim to have been abused by Monroe as boys have sued the archdiocese. Today, attorney Jay Mercer asked Judge David A. Shaheed to rule in favor of the archdiocese on the basis that the claim was filed too late. He said it should have been made by the time John Doe NM, now in his early 40s, turned 20.

Before making that case, Mercer did what the archdiocese had denied in its initial responses to the lawsuits — he acknowledged the former priest’s abuse. * * *

Today, [John Doe NM’s attorney, Pat Noaker] argued that the case should go forward because the six-year time limit on fraud cases should have begun ticking only after John Doe NM learned, in 2005, that the archdiocese knew of Monroe’s abusive tendencies before assigning him to St. Catherine’s Parish.

For the archdiocese to assign Monroe a position in a parish where he had free access to children, Noaker said, was akin to actively representing that Monroe was a person of good character and of no threat to children. That, he said, is the essence of fraud.

Today Jon Murray of the Star reports:

A judge has refused to throw out a lawsuit claiming the Archdiocese of Indianapolis covered up abuse by a former Catholic priest three decades ago.

The ruling by Marion Superior Court Judge David A. Shaheed means the suit could be the first of 13 against the archdiocese to move forward to trial. It alleges fraud, arguing the archdiocese knew of previous abuse by the Rev. Harry Monroe when it moved him in 1976 to St. Catherine's Parish in Indianapolis.

No one disputes that the plaintiff suffered abuse, Shaheed wrote. The former altar boy at the Southside parish is called John Doe NM in court documents.

His abuse-related claims have been withdrawn, since the statute of limitations ran out long ago. But the judge ruled Dec. 20 against the archdiocese's motion for summary judgment, which sought dismissal of the suit, writing that the six-year statute of limitations on fraud began running only in 2005, when the plaintiff learned that the archdiocese had known of other abuse before Monroe's transfer.

"The court has recognized that placing a priest in a parish and giving him responsibility for kids is a representation that that priest is safe around children," said Pat Noaker, a St. Paul, Minn., attorney representing all 13 plaintiffs. "What we won is the right of the plaintiff to press his case." * * *

Noaker said 10 other cases involve similar fraud claims that could be affected favorably by Shaheed's ruling. The John Doe NM case is the first to survive a summary judgment challenge; no trial date is set, but Noaker anticipates going to trial by late 2008.

The ILB would be pleased to post a copy of Marion Superior Court Judge David A. Shaheed's Dec. 20th opinion, if someone is able to email or fax it to me.

Posted by Marcia Oddi on December 28, 2007 07:26 AM
Posted to Indiana Decisions

Thursday, December 27, 2007

Ind. Courts - Allen Circuit Court Hearing Officer Appointed

According to a release just received:

John D. Kitch III, has been appointed as the new Allen Circuit Court Hearing Officer, Circuit Court Judge Thomas J. Felts recently announced. Kitch will be taking over the duties presently being fulfilled by former Allen Circuit Court Judge Tom Ryan. Those duties include presiding over the Circuit Court’s IV-D child support enforcement cases. Kitch’s duties may also be expanded to include assisting with the Circuit Court’s criminal calendar, and the Court’s domestic relations calendar, as well. The appointment was made pursuant to I.C. 33-33-2-4(b), and is effective January 1, 2008.

When asked about his selection of Kitch, Judge Felts declared: “We were very fortunate to have several outstanding candidates for the position from which to choose. John’s experience, demeanor and commitment made him the best candidate. I expect great things from him.”

Kitch, age 34 was admitted to practice after graduating from law school at Valparaiso University in 1998. His undergraduate degree is from DePauw University. John was, a deputy prosecuting attorney in Marion County and Allen County, Indiana, from 1998-2005. Since 2006, he has been in private criminal defense practice with the Arata Law firm in Fort Wayne. Kitch was born in Fort Wayne, on April 11, 1973.

Judge Ryan is hanging up his gavel after 24 years on the full time bench. First appointed to the office in 1983, he decided not to seek reelection in 2002, paving the way for long time Circuit Court Magistrate Felts to become his successor. Judge Ryan will continue to serve in the capacity of Senior Judge.

Posted by Marcia Oddi on December 27, 2007 08:06 PM
Posted to Indiana Courts

Law - "Documents of Library in Boston to Go on Web"

John Markoff reports today in the NY Times:

The historical record of the United States government will soon be more accessible.

A digital library partnership, including two nonprofit organizations and the Boston Public Library, is preparing to begin making digital copies of the library’s paper-based government documents collection, which will then be made available on the Internet.

The project, which will take two years and require the hand scanning of millions of pages of government hearings and related publications, will cost an estimated $6 million, according to the project’s sponsors.

Boston Public Library librarians said they planned to begin by digitizing the House Committee on Un-American Activities hearings from the 1950s, which is regularly sought after by its patrons.

The project is being undertaken by Public.Resource.Org, a nonprofit group seeking to open public access to government records, and the Internet Archive, a San Francisco-based digital library.

The project is the brainchild of founders of the two organizations, Carl Malamud and Brewster Kahle, and it is initially being financed by a $250,000 grant from a foundation established by Mr. Kahle and his wife, Mary Austin, and a matching grant from the Omidyar Network, a support organization created by Pierre Omidyar, the founder of eBay.

Mr. Malamud said his goal is to digitize the entire United States government documents collection, which has been estimated to include up to 100 million pages of publications ranging from the Congressional Record to the Federal Register. * * *

This summer Mr. Malamud embarked on a separate effort to digitize all federal case law, and he said he was now negotiating with two private companies to purchase existing digital collections, which would drastically shorten the time required for the undertaking.

He had originally planned to use optical character recognition equipment to collect the data, which is now made available from private companies for a fee. The government documents scanning project might also be accelerated if a private online company agrees to sell data to the project, he said.

His motivation is to make the workings of the government more accessible at no cost: “This is society’s operating system,” he said.

ILB readers may recall an entry from Aug. 20th, quoting from another John Markoff NYT article titled "A Quest to Get More Court Rulings Online, and Free."

Posted by Marcia Oddi on December 27, 2007 06:22 PM
Posted to General Law Related

Ind. Courts- More on "Greene County Prosecutor Jarrod Holtsclaw has initiated a ‘no refusal’ blood test program"

Thanks to Morgan County Chief Deputy Prosecutor Bob Cline for sending this note in response to the ILB posting immediately below:

Marcia,

Morgan County and a lot of other prosecutor's offices have a blood draw search warrant program in place, where a refusal will result in a request for a search warrant for blood evidence. Ours was made possible by ICJI and is done by fax at this time.

Bob

Posted by Marcia Oddi on December 27, 2007 04:00 PM
Posted to Indiana Courts

Ind. Courts - "Greene County Prosecutor Jarrod Holtsclaw has initiated a ‘no refusal’ blood test program"

From an unattributed story in the Bloomfield Free Press:

BLOOMFIELD - In an effort to stem the tide of drunken drivers on the county’s highways over the New Year’s holiday weekend, Greene County Prosecutor Jarrod Holtsclaw has initiated a ‘no refusal’ blood test program.

Last year, nine motorists were taken to jail between Dec. 29 and Jan. 1 as a result of drinking and driving.

According to Indiana law, a motorist who is suspected of driving while intoxicated may refuse to take any of the tests.

Doing so will result in a mandatory one-year suspension of all driving privileges - unless the driver has a prior drunken driving conviction, in which case the suspension is for a period of two years.

For a number of years, attorneys have advised their clients never to take the breath test - as it is another way for lawmen to gather evidence against suspected drunken drivers.

In a special program initiated by Holtsclaw and both judges in Greene County, a motorist will still be able to refuse the breath test, but they are still likely to be charged with the full boat of operating a vehicle while intoxicated charges - thanks to search warrants. [ILB emphasis]

“The purpose of this program is to reduce the number of impaired drivers during the holiday season, and therefore hopefully eliminate serious or fatal vehicle crashes that all too often occur after impaired motorists take to the roads in Greene County,” Holtsclaw said in a press release issued for release Wednesday morning.

Holtsclaw explained the program by saying that while a motorist may refuse the breath test - and take the automatic license suspension - if there is probable cause to suspect that they are drunk, his office will obtain a search warrant and the alleged offender must submit to a blood test for intoxication.

“Thus, in all OVWI investigations during the New Year’s holiday, officers will be collecting chemical evidence of motorists’ levels of impairment,” Holtsclaw said. “In addition, the mandatory license suspension still applies to any motorist who refused the offer of a chemical (breath) test, but is subject to a blood draw.”

Holtsclaw explained that it is not the intention of his office, or of any of the police departments participating in the ‘No Refusal’ program to simply increase the number of OVWI arrests over the New Year’s holiday.

“Though, that may occur,” he said. “Instead, it is to notify all those who operate vehicles on our roadways that law enforcement does take seriously the dangers posed by impaired drivers.”

He said that it is the hope of all the agencies involved that “citizens will take notice of this new program and avoid operating vehicles after consuming drugs or alcohol.”

Holtsclaw also said that he realizes that the holiday season is a time of great joy and celebration, “but there is simply no excuse for endangering the lives of others as a result of driving while impaired.”

“Find a designated driver, call a friend or family member for a ride, spend the night or have a party at home,” he said. “But, please don’t drive impaired this holiday season.”

A number of local law enforcement agencies will have extra patrols on during the New Year’s period - which runs from Dec. 29 through New Year’s Day.

All local law enforcers have agreed to participate in the program, including Bloomfield Police, Linton Police, Greene County Sheriff’s Department, Worthington Police, Lyons Police, Indiana State Police and Jasonville Police.

“I think Jarrod has a great idea,” said Bloomfield Town Marshal Ken Tharp. “And I’m impressed that the judges are supporting it.”

Here is the story from the Dec. 25th Greene County Daily World, reported by Anna Rochelle:

Under the "No Refusal" Program in effect from Saturday through New Year's Day, extra officers will be working the roads across Greene County looking for drivers who are operating vehicles while intoxicated or under the influence of other substances. Facts about the program, according to Greene County Prosecutor Jarrod Holtsclaw, are listed below.

No Refusal Program

Any motorist who exhibits signs of impairment will be stopped and transported to the Greene County Sheriff's Department for standardized field sobriety testing.

In those cases where there is probable cause to believe that the motorist has operated a vehicle while intoxicated, the motorist will be offered a chemical test to determine the amount of alcohol in the motorist's blood or breath pursuant to law.

For those motorists who exercise their right to refuse the offer of a chemical test, their driver's license shall be suspended for one year if they have no prior convictions for OVWI, or for two years if they do have a prior conviction for OVWI, pursuant to Indiana Code 9-30-6-9.

During the "No Refusal" program, in all cases where probable cause exists that a motorist operated a vehicle while intoxicated and the motorist refuses a chemical test, officers will request a search warrant from a judge for a sample of the motorist's blood for chemical analysis to determine the motorist's blood alcohol content.

Thus, in all OVWI investigations during the New Year's holiday, officers will be collecting chemical evidence of motorist's level of impairment.

In addition, the mandatory license suspension still applies to any motorist who refuses the offer of a chemical test but is subjected to a blood draw pursuant to a search warrant.

Posted by Marcia Oddi on December 27, 2007 02:59 PM
Posted to Indiana Courts

Ind. Courts - New honors for Don Lundberg and Mark Rutherford

From press releases issued today by the Indiana Courts:

Indiana Supreme Court Disciplinary Commission Executive Secretary Donald R. Lundberg, has been elected president of the National Organization of Bar Counsel and appointed to the editorial board of the ABA/BNA Lawyers’ Manual on Professional Conduct.

Mark W. Rutherford has been elected president of the Indiana Public Defender Commission. An attorney at Thrasher Buschmann Griffith & Voelkel, P.C. in Indianapolis, he is a graduate of Wabash College and the Valparaiso University School of Law.

When the releases are posted online,. the ILB will add links.

Posted by Marcia Oddi on December 27, 2007 02:23 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)

For publication opinions today (5):

In Hopper Resources Inc., Construction Div. v. Wendell Webster , a 13-page opinion, Judge Darden writes:

Hopper Resources, Inc., Construction Division (“Hopper”), appeals the trial court’s order denying judgment to Hopper on its claim asserted against Wendell Webster in a complaint seeking the foreclosure of a mechanic’s lien and additional damages. We affirm.

In Joyce Carlson, et al v. Ernest and Anita Warren , a 17-page opinion, Judge Vaidik writes:

Joyce Carlson (“Carlson”), the administrator of Noel Mangus’s (“Mangus”) estate, and Elizabeth Alderson (“Alderson”), Mangus’s sister, challenge Mangus’s inter vivos conveyance of his farmland to his caretakers, Ernest and Anita Warren (the “Warrens” or “Ernest” or “Anita,” respectively). We find that, by designating deposition testimony in support of their motion for summary judgment that relates to the deed transfer at issue in this case, Carlson and Alderson waived the applicability of Indiana Code § 34-45-2-4 (“Dead Man’s Statute”). Further, the Warrens’ attorney’s testimony regarding his preparation of the warranty deed in question was relevant to show that he executed the deed in conformity with his habit and was therefore admissible. Finally, we conclude that summary judgment in favor of the Warrens was appropriate because Carlson and Alderson failed to show that the Warrens and Mangus had a confidential relationship by operation of law and otherwise failed to meet their initial burdens of proof on their tort claims against the Warrens. We affirm.

In In the Matter of L.H. v. State of Indiana , an 11-page, 2-1 opinion, Judge Robb writes:

L.H. was found by the juvenile court to have committed child molesting, a Class C felony if committed by an adult, and battery, a Class B misdemeanor if committed by an adult. L.H. appeals the true findings, contending that he was denied a fair trial when the juvenile court, at the State’s request and over his objection, incorporated testimony, evidence, and exhibits from a child hearsay hearing into the fact-finding hearing. Concluding that the juvenile court improperly incorporated the record of the child hearsay hearing, we reverse and remand. * * *

BARNES, J., concurs.
KIRSCH, J., dissents with separate opinion. [which begins] I believe that L.H. has failed to show prejudice resulting from the trial court’s incorporation of the evidence from the child hearsay hearing into the fact-finding hearing. In the absence of such prejudice, I believe that the trial court acted within its discretion, and, accordingly, I respectfully dissent.

In Jeannine Porod v. State of Indiana , a 5-page opinion, Judge Najam writes:

Jeannine Porod appeals her conviction for Acquiring Possession of a Legend Drug by Fraud, a Class D felony, following a jury trial. She presents a single issue for our review, namely, whether the State presented sufficient evidence to support her conviction. We affirm. * * *

Porod’s sole contention on appeal is that the State did not present sufficient evidence to prove that Ritalin is a legend drug as defined by statute. * * *

[ILB - The Court cites the definition of legend drug in IC 16-18-2-199, which includes a drug "(2) listed in the Prescription Drug List as: (A) *** Tenth Edition, (1990); and (B) revised in * * * Cumulative Supplement to the Tenth Edition, Number 10 (1990)."]

The publication referred to in subsection (2) is commonly known as the “Orange Book.” The list of drugs contained in the Orange Book includes Ritalin.

During trial, the State presented testimony that Ritalin is a legend drug, but the State did not introduce into evidence the Orange Book or a copy of 21 U.S.C. § 353(b)(1). On appeal, Porod argues that had the State “provided the judge with a copy of I.C. 16-18-2-199 and 21 U.S.C. [§] 353(b)[,]” that would have been sufficient to prove the legend drug element. Brief of Appellant at 8. In the alternative, Porod contends, the State “could have produced, and requested the judge take judicial notice of, [the Orange Book].” Id. But, Porod asserts, because the State did not pursue either manner of proof during trial, the evidence is insufficient to support her conviction. We cannot agree. * * *

Here, the statute defining “legend drug” incorporates by reference 21 U.S.C. § 353(b)(1), which does not include a list of drugs, and the Orange Book, which expressly includes Ritalin in its list of drugs. While not a statute, the Orange Book is promulgated by a federal agency, and we hold that the statute properly incorporates the Orange Book by reference. Because of that incorporation, Ritalin is, as a matter of law, specifically listed as a legend drug under Indiana Code Section 16-1-8-2-199. See White, 316 N.E.2d at 704. Accordingly, here, the trial court need only refer to the statutory definition and determine that Ritalin is a legend drug as a matter of law. See id. at 702; Barnett, 579 N.E.2d at 86. The State presented sufficient evidence to support Porod’s conviction.

[ILB note: Some questions remain for the ILB. IC 16-18-2-199 was enacted in 1993 and has not been amended since. It incorporated the 1990 (10th) edition of the Prescription Drug Product List. A general rule is that a statute cannot incorporate by reference a law or rule of another jurisdiction as it may be amended in the future, it must identify a specific version. So questions unanswered for the ILB because the evidence was not introduced at trial include (1) is Ritalin listed in the 1990 edition? (2) does Ritalin have more than one formulation? (3) where is it stated that the "Orange Book" is the equivalent of the 1990 Prescription Drug Product List?

In Bryon Uylaki v. Town of Griffith, et al , a 6-page opinion, Judge Bradford writes:

Appellant-plaintiff Bryon Uylaki appeals from the trial court’s dismissal of his wrongful termination claim against appellees-defendants the Town of Griffith, Town Councilmen of Griffith, the Department of Public Works, and the Chief Executive Officer, political subdivision of Indiana (collectively, “the Town”). We affirm. * * *

We believe that Uylaki had a fair opportunity to fully litigate the issues, even if he may not have fully exploited that opportunity. We conclude that administrative collateral estoppel applies, and the trial court, therefore, correctly dismissed Uylaki’s claim.

NFP civil opinions today (5):

In Mainsource Bank v. Calvin E. Brenneman, Leo N. Stenz, et al (NFP), a 7-page opinion, Senior Judge Barteau writes:

The sole issue presented for our review in this appeal is whether the trial court erred by entering summary judgment in this cause of action involving liability on personal guaranties for a business loan. * * *

The trial court erred by granting the Appellees’ motion for summary judgment. A genuine issue of material fact exists regarding Unger’s authority to sign for some or all of the Appellees. Resolution of those conflicting facts bears directly on the issue of the validity of the personal guaranties. Therefore, we remand this matter to the trial court for further proceedings consistent with this opinion. Reversed and remanded.

Invol. Term. of Parent-Child Rel. of A.P., M.P., and S.P., and Mary Palmero v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP) - Similar to yesterday's ruling out of the same court, Judge Sharpnack remands this ruling of a magistrate to Marion Superior Court Judge Moores on the basis that: "Because the record does not establish judicial approval of the magistrate’s findings in this case, we remand to the juvenile court for its consideration and further action consistent with this opinion. We retain jurisdiction of this appeal pending action by the juvenile court."

William R. Pinner v. Patrick S. Skidmore and American Family Insurance Co. (NFP) - Citing IC 34-9-3-3 and Trial Rule 25(A)(1), Judge Sharpnack writes:

Thus, for Pinner to continue his action against Skidmore after Skidmore passed away, Pinner, the court, or Skidmore’s counsel had to move to substitute Skidmore’s personal representatives. Because neither the court, nor the parties, including Pinner, moved to substitute Skidmore’s personal representative, Pinner could not continue his action against Skidmore. Thus, we cannot say that the trial court erred when it dismissed Pinner’s case. See McCalment v. Eli Lilly & Co., 860 N.E.2d 884, 896 (Ind. Ct. App. 2007) (concluding that the trial court did not err by granting defendant’s motion to dismiss). For the foregoing reasons, we affirm the trial court’s grant of Skidmore’s motion to dismiss. Affirmed.

Mark S. Priest v. Denise Priest (NFP) - "The appeal by Mark Priest is hereby dismissed and the judgment of the trial court is in all respects affirmed."

Christina M. Graham v. Terry A. Graham (NFP) - "STATEMENT OF THE CASE. Christina M. Graham (“Mother”) appeals the trial court’s granting of the motion to correct error filed by Terry A. Graham (“Father”). We reverse and remand.

"ISSUE. Whether the trial court abused its discretion in granting Father’s motion to correct error."

NFP criminal opinions today (7):

Bennie A. Williams v. State of Indiana (NFP)

Aaron L. Goldsby v. State of Indiana (NFP)

Timothy Kilbourne v. State of Indiana (NFP)

Freddie Byers v. State of Indiana (NFP)

George Jayne v. State of INdiana (NFP)

Misty R. Evans v. State of Indiana (NFP)

Anthony Taylor v. State of Indiana (NFP)

Posted by Marcia Oddi on December 27, 2007 12:55 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Angie's List is suing a rival over unfair use of its well-known logo"

From this Indianapolis Star story by Tom Spalding:

Angie's List, well known for its cartoon-character logo of a servicewoman giving a thumbs-up, is giving a thumbs-down to a publishing rival.

Brownstone Publishing, parent company of the Indianapolis-based online directory of local businesses, filed a trademark infringement lawsuit against Ameritech Publishing, alleging Ameritech violated the Angie's List copyright.

The suit was filed Dec. 10 [ILB- sic.] in U.S. District Court for the Southern District of Indiana.
Brownstone alleges Ameritech published Angie's List ratings in the yellow-page telephone directory listings of the businesses.

Angie's List calls its five logos "service marks" - which include the servicewoman giving a thumbs-up.

Angie's List executives say that in the first half of 2007, they repeatedly brought to Ameritech's attention that a version of its logos appeared in ads for companies that do gutter repair, glass installation and plumbing.

"Ameritech assured plaintiff that it would cease," the lawsuit states. "However, these promises were mere lip service. In fact ... when Ameritech released its 2007-08 Yellow Pages ... it continued to infringe."

The ILB has obtained and posted a copy of the 17-page complaint, dated and filed Dec. 19, 2007.

Among the remedies requested, on p. 16:

#3 That Ameritech be required to deliver to Plaintiff proof of destruction or all Yellow Pages directories possessed, used or distributed by Ameritech, or on their behalf, which refer to or are at all similar to Plaintiff's Marks;

#4. That Ameritech be required to account to Plaintiff for any and all profits gained by Ameritech through the conduct complained of herein and to pay all such profits over to Plaintiff.

Posted by Marcia Oddi on December 27, 2007 12:38 PM
Posted to Indiana Courts

Ind. Decisions - "Court says registry violated offender's constitutional rights"

The Indiana Court of Appeals 2-1 opinion yesterday in Todd L. Jensen v. State of Indiana (See ILB entry immediately below, or check here) is the subject of an AP story published by a number of papers today. Some quotes:

A legal change that forced a convicted sex offender to register for life as a sexually violent predator even though he was not originally determined to be one violated his constitutional protection against retroactive laws, the Indiana Court of Appeals ruled today.

The law was amended to require lifetime registration for certain offenses in 2006, two years after Todd L. Jensen was released from probation. Applying that requirement to Jensen violated prohibitions against ex post facto laws in the state and federal constitutions, the court said in a 2-1 ruling.

The ruling, which reversed a lower court decision, said that the retroactive lifetime registration requirement violated the constitution "as applied to him." It was not immediately clear whether the ruling might have wider impact. * * *

When Jensen was sentenced, the law required consultation with two experts to determine if someone was a predator who might be a repeat offender. The General Assembly later changed the law so that anyone convicted of certain offenses was defined as a sexually violent predator. One of those offenses was vicarious sexual gratification.

"Therefore, the 2006 version of the statute has changed the elements or ultimate facts and evidence necessary to prove that a defendant is a sexually violent predator," the court found. "Consequently, the 2006 version, which the trial court clearly used at Jensen's status determination hearing, is ex post facto law as applied to him."

The Court of Appeals also noted that it had found that courts have the power to review sexually violent predator status if an offender violates probation - but Jensen had not done so.

In a dissenting opinion, Judge Cale J. Bradford wrote that the lifetime registration requirement did not violate the clause against retroactive laws because it was intended to monitor the whereabouts of the offender, not as punishment.

Posted by Marcia Oddi on December 27, 2007 07:29 AM
Posted to Ind. App.Ct. Decisions

Wednesday, December 26, 2007

Ind. Decisions - Court of Appeals issues 4 today (and 15 NFP)

For publication opinions today (4):

In Todd L. Jensen v. State of Indiana , a 10-page, 2-1 opinion, the Court rules that "the amendments to Indiana’s Sex Offender Registry as applied to Jensen violate the ex post facto clauses of the federal and state constitutions." Senior Judge Robertson writes:

Defendant-Appellant Todd L. Jensen (“Jensen”) appeals from the trial court’s order classifying him as a sexually violent predator and requiring Jensen to register as such for the remainder of his life. We reverse and remand.

ISSUES. Jensen’s appeal presents the following dispositive issue for our review: whether the amendments to Indiana’s Sex Offender Registry as applied to Jensen violate the ex post facto clauses of the federal and state constitutions.

FACTS. On January 18, 2000, Jensen pled guilty to vicarious sexual gratification, a Class C felony, and child molesting, a Class C felony. Jensen was sentenced on February 18, 2000, to three years executed with three years suspended on each count. The sentences were ordered to be served concurrently. Pursuant to Ind. Code §5-2-12-13 (repealed by P.L. 140-2006, SEC. 41 and P.L. 173-2006, SEC. 55), Jensen was to report as a sex offender for a period of ten years.

Jensen was released from prison, began the probationary period of his sentence on July 12, 2001, and was formally released from probation on July 12, 2004. Since his release from prison, Jensen has annually reported and registered as a convicted sex offender. On September 20, 2006, the Allen CCounty Sheriff Department’s Sexual Offender Registry Coordinator informed Jensen that he would have to register for life as a sexually violent predator and as an offender against children. Jensen filed a motion to determine registration status with the trial court, and a hearing was set on that motion for February 12, 2007. Ultimately, the trial court found Jensen to be a sexually violent predator, and determined that Jensen must register for life. This appeal arises from the trial court’s ruling. * * *

We hold that imposition of a lifetime registration requirement in Jensen’s case violates ex post facto considerations. We reverse the trial court’s order determining that Jensen is a sexually violent predator, and instruct the trial court to enter an order determining Jensen’s registration requirement to be for ten years’ duration. * * *

SHARPNACK, J., concurs.
BRADFORD, J., dissenting with separate opinion. [which concludes] Given the public interest in certain informational filings, it is my opinion that requiring a sexually violent predator to maintain his current address in the registry, even for a lifetime, does not rise to the level of being so punitive as to overcome its non-punitive legislative intent, that is, to monitor the whereabouts of a violent sexual predator, the necessity of which does not diminish over time. I would affirm the trial court on this issue.

In Harvey N. Berman v. James Cannon and Rhonda Cannon, a 12-page opinion, Judge Sharpnack writes:

Harvey N. Berman appeals the judgment against him in favor of James and Rhonda Cannon. Berman raises three issues, which we consolidate and restate as: I. Whether the trial court abused its discretion when it refused to allow Berman’s counsel to explain the medical reasons behind Berman’s absence from the trial; and II. Whether the jury’s damage awards to Rhonda and James Cannon were excessive and unreasonable in light of the evidence. We affirm.

In State of Indiana v. Michael A. Cozart , a 10-page opinion, Chief Judge Baker writes:

When Michael Cozart agreed to plead guilty, he did not understand that the trial court was without discretion to suspend any of the minimum sentence he faced because of his prior felony convictions. After Cozart fully understood the trial court’s sentencing authority, he moved to withdraw his guilty plea, but the trial court refused to permit the withdrawal. On post-conviction, the court found that Cozart had not knowingly and voluntarily pleaded guilty because the trial court had not adequately advised him regarding the potential length of the sentence it was about to impose.

Appellant-respondent State of Indiana appeals from the post-conviction court’s order granting appellee-petitioner Michael A. Cozart’s petition for post-conviction relief. The State argues that the trial court was not required to advise Cozart regarding the effect his prior felony convictions would have on its authority to suspend any portion of the minimum sentence he faced following a guilty plea to a class A felony. Finding that Cozart did not plead guilty knowingly and voluntarily, we affirm the judgment of the post-conviction court.

Trenyon R. Page v. State of Indiana - "Trenyon Page appeals his sentence for three counts of robbery as class C felonies.1 Page raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion in sentencing Page; and II. Whether Page’s sentence is inappropriate in light of the nature of the offense and the character of the offender. We affirm."

NFP civil opinions today (4):

Aubrey Anderson v. Patricia Anderson (NFP) - "Appellant-Respondent Aubrey Anderson (“Father”) appeals parenting time and child support orders concerning L.A. and B.A., his children with Appellee-Petitioner Patricia Anderson (“Mother”). We affirm."

In Invol. Term. of Parent-Child Rel. of A.G., K.G., A.R., and K.N., and Debra Gillard v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP), a 3-page opinion out of Marion Superior Court, Judge Sharpnack writes:

This case comes to us on appeal from an order terminating the parental rights of Debra Gillard to A.G., A.R., Z.N., and K.G. The order included in the record reflects that it was signed by the magistrate presiding over the case but does not indicate that the juvenile court judge approved entry of the order. The docket indicates that the order was approved on April 5, 2007, but there is no indication as to how this approval was accomplished.

The authority of magistrates to act is determined by statute. As provided in Ind. Code §§ 33-23-5-5(14) and 33-23-5-9(b), a magistrate presiding at a criminal trial may enter a final order, conduct a sentencing hearing, and impose a sentence on a person convicted of a criminal offense. There is no such provision for magistrates to act in termination of parental rights cases. Rather, Ind. Code § 33-23-5-9(a) provides that, except in criminal proceedings, a magistrate “shall report findings” in an evidentiary hearing or a trial and that “the court shall enter the final order.” Because the record does not establish judicial approval of the magistrate’s findings in this case, we remand to the juvenile court for its consideration and further action consistent with this opinion. We retain jurisdiction of this appeal pending action by the juvenile court. Remanded.

Eric D. Smith v. Dept. of Correction, Westville Control Unit, et al (NFP) - "Appellant-plaintiff Eric D. Smith appeals the trial court’s orders entering summary judgment in favor of appellees-defendants Indiana Department of Correction, Westville Control Unit, Correctional Lieutenant Brooks, Correctional Officer Jason Jacob, Correctional Officer Marty Sexton, and Counselor Steve Euler (collectively, the DOC) on Smith’s complaint against the DOC, denying his motion for appointment of an attorney, and denying his motion to amend the complaint. Finding no error, we affirm the judgment of the trial court."

Wal-Mart Stores v. Timothy Kinnison, et al (NFP) - "Wal-Mart’s principal place of business is in Bentonville, Arkansas, and it is licensed to operate in Indiana. Its registered agent for service of process in Indiana is CT Corporation, which is located in Indianapolis. When a lawsuit is filed against Wal-Mart in Indiana, CT Corporation forwards the complaint and summons to the legal department in Bentonville. At that time, the case is assigned to one of Wal-Mart’s in-house attorneys.

"On September 21, 2006, the Kinnisons filed a complaint against Wal-Mart in Noble County, seeking damages stemming from an allegedly negligent oil change performed by Wal-Mart employees in Perris, California. Despite the facts that the alleged tort occurred in California and that CT Corporation is Wal-Mart’s registered agent in Indiana, the Kinnisons attempted to serve the complaint and summons by sending them via certified mail to a Wal-Mart Store in Kendallville. The envelope was addressed to “Wal-Mart Stores, Inc. * * *

"In sum, because service of process was inadequate, the trial court did not have personal jurisdiction over Wal-Mart and the default judgment is void. Therefore, the trial court abused its discretion when it refused to grant Wal-Mart’s motion for relief from the default judgment. The judgment of the trial court is reversed and remanded for further proceedings on the Kinnisons’ complaint."

NFP criminal opinions today (11):

Dean Jones v. State of Indiana (NFP)

Hannah Rae Birdsong v. State of Indiana (NFP)

Roger L. Brooks v. State of Indiana (NFP)

David Paul Clark v. State of Indiana (NFP)

Thomas J. Eaton v. State of Indiana (NFP)

Anthony W. Kramer v. State of Indiana (NFP)

Richard H. Lyons v. State of Indiana (NFP)

George E. Winget v. State of Indiana (NFP)

Leonard Thomas v. State of Indiana (NFP)

Ronald D. Luthe v. State of Indiana (NFP)

Brandon Rutherford v. State of Indiana (NFP)

Posted by Marcia Oddi on December 26, 2007 02:40 PM
Posted to Ind. App.Ct. Decisions

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

In U.S. v. Haskins (ND Ind., Judge Lozano), a 13-page opinion, Judge Rovner writes:

A wild night at Dena’s Pub, a local nightclub in Gary, Indiana, ended prematurely when police arrived on the scene and confiscated drugs and firearms from Dena’s patrons and employees. One employee was Dwayne Haskins, who worked as a security guard at Dena’s. Police took Haskins’ firearm but later returned it because he lawfully possessed it. Police also inadvertently gave Haskins a Beretta .40- caliber pistol. Not one to “look a gift horse in the mouth” (as he later put it), Haskins accepted the weapon, although it was not his. He later sold the Beretta to Darryl Eller, his friend and fellow security guard at Dena’s. Unfortunately for Haskins, Eller was not only a convicted felon, he was also cooperating with federal agents. Consequently, Haskins was convicted of violating 18 U.S.C. § 922(d), which makes it a crime to sell a firearm to an individual known or reasonably believed to be a felon. Haskins appeals, and we affirm.

Posted by Marcia Oddi on December 26, 2007 10:39 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Electronic signs stir debate"

James D. Wolf Jr. reports today for the Gary Post-Tribune:

VALPARAISO -- Battles are brewing over electronic signs in rural Porter County as rules get more restrictive toward signs that flash, scroll messages or simulate movement.

Sometime in January or February, the Porter County Commissioners will vote whether to restrict electronic signs -- even those that tell time and temperature. The Board of Zoning Appeals has tabled requests for three electronic signs.

The restrictions have received a favorable recommendation from the Porter County Plan Commission at its Dec. 12 meeting.

"We're trying to keep the rural atmosphere, and you can't have that with signs for gentlemen's clubs and fireworks," said Robert Harper, county commissioner and plan commission member.

This would amend the Unified Development Ordinance passed this summer, which allowed for "static message" electronic signs, as well as "semi-static," but doesn't define them.

Manually placed text would be allowed, Harper said.

The plan commission has a vision for Porter County where "we'll see trees and grass and deer," Harper said.

Banks would need a variance from the Board of Zoning Appeals to have a temperature sign, county planner Robert Thompson said earlier in December.

However, owners of sign requests that are on hold at the BZA, and under current restrictions, say that they're being mistreated while board members review a flood of paperwork regarding the safety of electronic signs.

On Aug. 2, 2007 the ILB had this entry, headed "High-tech billboards targeted: Kentucky officials want them gone." A Cincinnati Enquirer story is quoted:

Kentucky's Transportation Cabinet has told outdoor advertising companies operating in Northern Kentucky that the digital boards should be torn down, turned off or converted back to static displays. No state law specifically permits electronic billboards, and their changing messages may violate other state and federal highway rules, the cabinet says.

Meanwhile, today, the Kenton County Planning Commission is to consider a ban on any more high-tech signs at least through Dec. 31, when a consultant can recommend new sign regulations.

Twelve electronic billboards have been planted in Greater Cincinnati and Northern Kentucky along Interstates 75, 71, 275 and 471. At night, they're often the brightest objects in the landscape.

Some motorists love the sharp color and rotating ads. Critics say they're a neighborhood nuisance and perhaps unsafe. * * *

Ohio permits the digital signs, provided each commercial message remains fixed for at least 8 seconds, and that the sign itself is at least 1,000 feet from another multiple-message board.

Some 156 electronic displays already line the state's interstates and highways, according to the Ohio Department of Transportation. Another 13 are in the pipeline.

The entry goes on to ask "What about Indiana," pointing to HEA 1373, passed last year, which allows, according to a story by Patrick Guiane of the NWI Times dated Feb. 13, 2007, "moving interstate billboards into the digital age."

Posted by Marcia Oddi on December 26, 2007 07:45 AM
Posted to Indiana Law

Tuesday, December 25, 2007

Ind. Courts - Yet more on: "St. Joseph County judge has stopped sending female offenders to the Indianapolis Juvenile Correctional Facility"

Updating these earlier ILB entries from Dec. 20th and 21st, the Lafayette Courier & Press reports today:

A Tippecanoe County judge says she shares concerns about a state-run juvenile center in Indianapolis that was accused last week of lack ing services and being understaffed.

Juvenile court Judge Loretta Rush said she tries to send only serious, violent offenders to the Indianapolis Juvenile Correctional Facility, which is run by the Indiana Department of Corrections.

Parents have brought forth complaints about the facility in her courtroom.

"I've been tracking (parents') concerns and can say I'm not happy with it," Rush said. "I would love to not send offenders there, but unfortunately there are not a lot of other options."

Last week, St. Joseph County Judge Peter Nemeth sent a letter to Gov. Mitch Daniels explaining that he has stopped sending female offenders to the center because "I have decided it is neither safe nor productive."

He said the center doesn't have adequate rehabilitative and educational services and that he's also received reports of sexual activity between inmates and between inmates and staff.

Daniels said Thursday that he would read Nemeth's letter and seriously weigh his concerns.

"The Girls School had a very positive audit," Daniels said. "His opinion appears to be a very isolated one."

DOC Chief of Staff Randall Koester said the department will review the judge's concerns. But he questioned the accuracy of the accounts provided by the juveniles in the review.

Koester said the department hired a new superintendent, Robert B. Rivenburg, in August to head the center, where 258 youths were housed as of Wednesday.

Rush said one of her concerns about the center is that once a juvenile offender is sent there, the county has no ability to pull the child out.

Posted by Marcia Oddi on December 25, 2007 12:27 PM
Posted to Indiana Courts

Ind. Law - "Bill: Hold accused abusers 8 hours "

Lesley Stedman Weidenbener reports today in the Louisville Courier Journal. Some quotes:

Accused batterers would have to remain in custody for at least eight hours to help cool off domestic violence situations under legislation filed by a state senator for next year's General Assembly session.

Senate Bill 27 would give victims time to find help or go to shelters while their accused abusers were settling down in jail rather seeking retribution, said Sen. Jim Arnold, D-LaPorte.

"We're calling it a cooling-off period," said Arnold, a former two-term sheriff. "Right now, we have too many officers going back to these situations on a repetitive basis. So we're trying to look at this in a little different light." * * *

Some Indiana judges already impose similar restrictions, but there's no statewide requirement.

In Harrison County, for example, accused batterers face a court-ordered 24-hour hold, said Corydon Police Chief Jim Kendall.

"It works great," Kendall said. "It gives the batterer time to calm down … and it lets us get the victim to a safe house."

In Clark County, judges have a standing order that people arrested on domestic violence charges aren't released until they see a judge, said Sheriff Danny Rodden. That typically takes 24 to 72 hours, he said.

"Everybody has cooled down a little bit by then," Rodden said.

But in some places, alleged batterers can get out of jail on bond or be released without bail soon after they are charged.

"There's county-by-county discretion," said Barb Miller, executive director of the Albion Fellows Bacon Center, an Evansville-based organization that serves domestic violence victims in 11 counties, including Orange, Crawford and Harrison.

For example, "You can be arrested and be bonded out in a matter of a couple hours" in Vanderburgh County, Miller said.

That's often not enough time for victims to be able to find help, pack their belongings and get their children to a safe location, she said. "The time is so critical," she said.

Arnold introduced the legislation after meeting with the LaPorte County Domestic Violence Task Force, whose members were concerned that accused abusers were leaving jail too quickly.

The bill has been assigned to the Judiciary Committee. Chairman Sen. Richard Bray, R-Martinsville, has not set the bill for a hearing and did not return a call yesterday seeking comment.

The Indiana Coalition Against Domestic Violence plans to endorse the bill, said Kerry Hyatt Blomquist, the group's legal counsel.

Posted by Marcia Oddi on December 25, 2007 12:08 PM
Posted to Indiana Law

Ind. Decisions - Voter ID to be argued Wed., Jan. 9th

The Washington Post today has a good overview of the "Partisan Fissures Over Voter ID". Robert Barnes writes in a lengthy report:

The Supreme Court will open the new year with its most politically divisive case since Bush v. Gore decided the 2000 presidential election, and its decision could force a major reinterpretation of the rules of the 2008 contest.

The case presents what seems to be a straightforward and even unremarkable question: Does a state requirement that voters show a specific kind of photo identification before casting a ballot violate the Constitution?

The answer so far has depended greatly on whether you are a Democratic or Republican politician -- or even, some believe, judge.

"It is exceedingly difficult to maneuver in today's America without a photo ID (try flying, or even entering a tall building such as the courthouse in which we sit, without one)," Circuit Judge Richard A. Posner, a Ronald Reagan appointee, wrote in deciding that Indiana's strictest-in-the-nation law is not burdensome enough to violate constitutional protections.

His colleague on the U.S. Court of Appeals for the 7th Circuit, Bill Clinton appointee Terence T. Evans, was equally frank in dissent. "Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic," Evans wrote. * * *

The state's Republican-led legislature passed the law in 2005 requiring voters to have ID, even though the state had never prosecuted a case of voter impersonation.

Democrats there challenged the requirement as unconstitutional, although they have not produced a person who wanted to vote but was unable to do so because of the law.

Posted by Marcia Oddi on December 25, 2007 08:58 AM
Posted to Ind. (7th Cir.) Decisions

Monday, December 24, 2007

Ind. Courts - Second candidate files for Clinton Superior Court

Martha O'Brien reports in the Frankfort Times:

May's primary election is still several months away, but one race is already getting attention.

Friday, Frankfort attorney Michael E. Douglas announced he will seek the Republican nomination for Clinton Superior Court judge. He is the second candidate to file for the position.

"I have had the privilege and honor to be a part of the legal profession for many years," Douglas said. "It is my desire to continue with my passion, the law, and to continue my legal career as judge of Clinton Superior Court."

Kathy Smith, the presiding Superior Court judge, told The Times earlier this month that she will not seek another term at the end of 2008.

The impending vacancy has fueled interest among Frankfort's lawyers. On Dec. 6, attorney Justin Hunter announced his intention to pursue the Republican nomination for the seat.

Posted by Marcia Oddi on December 24, 2007 04:32 PM
Posted to Indiana Courts

Ind. Gov't. - Hamilton County Prosecutor and County Council at odds

Tania E. Lopez of the Indianapolis Star reports:

NOBLESVILLE -- Hamilton County Prosecutor Sonia Leerkamp has accused the County Council of extortion after it cut her salary for not submitting employee performance evaluations.

"Quite frankly, I believe what they have done is not permitted by law," she said. "They can't use (the stipend) as leverage. It's called extortion or blackmail."

In a special meeting Thursday, four members of the council voted unanimously to take away the $5,000 stipend typically added to Leerkamp's annual salary of $110,500 paid by the state.

Council members Brad Beaver, Meredith Carter, Judith Levine and Steve Schwartz cut the stipend because Leerkamp failed to submit employee evaluations of her staff, according to Beaver and Schwartz. * * *

"Back at the budget hearings, she was asked to do all the performance appraisals of all her employees and to sign the (employee) handbook," Schwartz said after Thursday's special meeting. "She didn't do it."

Even though county taxes are used to fund the salaries of employees in the prosecutor's office, Leerkamp said, the council cannot dictate how she runs the office. She interprets constitutional case law as giving prosecutors the ability to operate their offices independently.

"My employees are not county employees because of that unique status," she said. "The responsibility of the county (council) is for them to fund my office, and that's the only statutory authority they have over me."

Leerkamp said she never signed the county's handbook because she had objections over revisions that were made to the documents in 2006.

Posted by Marcia Oddi on December 24, 2007 04:28 PM
Posted to Indiana Government

Ind. Decisions - New election called in Rome City

Mitch Harper of Fort Wayne Observed as an interesting entry today that begins:

Sometimes an election recount results in a winner different than the one announced on election night. (Note the Muncie mayoral election.) More rarely does a new election get called as the result of petition filed for a recount and contest.

However, northeast Indiana will see a new town election being held as the result of a petition filed by losing candidates in town board of trustees (town council) election.

Late Friday, Noble County Circuit Judge G. David Laur issued a ruling calling for a new election in Rome City. The November 6th election was called into question due to several voters being turned away when told that they were not registered to vote in the town's precincts.

There was an error in the voting lists as prepared by the Secretary of State's office.

The voters were turned away rather than being provided a provisional ballot. A decision whether to count a provisional ballot is made after a reexamination of the reasons for the voter's disqualification. A provisional ballot preserves the right of the voter to cast a vote in the event of an error.

Posted by Marcia Oddi on December 24, 2007 04:23 PM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Yet more on: Marion County juvenile court orders release of the juvenile court file and the much larger DCS case file in TaJanay Bailey case

Updating four previous ILB entries headed "Marion County juvenile court orders release of the juvenile court file and the much larger DCS case file in TaJanay Bailey case" (dated Dec. 11, 9, 7 an6 6 - see ILB list here), Jon Murray reports today in the Indianapolis Star:

Even before TaJanay's death Nov. 27, juvenile court Judge Marilyn Moores had begun recruiting members for the CHINS Task Force. It will work to improve everything involving Child in Need of Services cases, Moores said, which could include increasing the frequency of state Department of Child Services reports to the court, reducing the time it takes to resolve a case and creating risk-assessment tools for parents and children.

"Our system now is too ponderous, too pokey, too cookie-cutter," said Moores, who presides over the juvenile court. "It's just too slow. Cases stay open too long. We can do better, and we have to do better."
In January, the court will add one docket, or court session, to each magistrate's schedule, which will give them more time to handle each case.

"We've kind of been accused of having the rocket docket," said Cynthia Booth, executive director of Child Advocates, an agency that oversees volunteers appointed to represent the interests of children in child welfare cases. After the change, "there will be more meaningful hearings."

In another step to reform the system, Moores called a meeting earlier this month to discuss communications gaps revealed by TaJanay's death. The meeting produced a new countywide system for notifying police about families involved in the child welfare system and whether they are heading to an address under scrutiny by DCS. * * *

"The system doesn't give us crystal balls," Moores said, "but we have to know that we've done everything we can."

After TaJanay's death, Moores opened up the DCS case file to public scrutiny. She also gave the media copies of the juvenile court's own file.

She could rule this week on The Indianapolis Star's requests for more records and to listen to a recording or see a transcript of the Aug. 30 hearing.

The task force's work is part of a model courts program run by the National Council of Juvenile and Family Court Judges. There are 31 such courts across the country, all working with the council to improve the way they handle child welfare cases.

In Marion County, Moores and six magistrates handle DCS-initiated cases either full time or part time.
They face full dockets, handling one-quarter of the state's child welfare caseload. Last year, 1,392 abuse or neglect petitions were filed; the average case takes two years to reach closure.

The magistrates rely on DCS reports and ask questions of social services workers who attend court hearings every two or three months.

Booth, one of about 30 task force members, said the magistrates are devoted, despite the heavy caseloads.But the volume can be daunting.

In smaller courts, a judge is more likely to know all the social workers, lawyers and advocates involved in a case, said Leslie Rogers Dunn, who heads the state Guardian Ad Litem/Court Appointed Special Advocate program.

"They may know them on a first-name basis and even have their cell phone number. In fact, they probably know the family before they come into the system. That's the way small towns work."

Moores said the task force will look for ways to make the Marion County court's work with each case more meaningful. Booth is hopeful that the docket change will result in more hearings that start on time, making it easier for more players in a case to attend.

Their input is crucial, Dunn said, because the magistrates rely on their viewpoints to make decisions.
Those decisions are not easy. It's not always obvious whether a parent will care for a child properly once the child is returned.

"A lot of times, we make tough calls," Dunn said. "That's clear about the TaJanay Bailey case."

Posted by Marcia Oddi on December 24, 2007 10:24 AM
Posted to Indiana Courts

Ind. Courts - "Dress code suit costs couple $40,931.50: Anderson plaintiffs' predicament illustrates the risks of being your own lawyer"

So reads the headline to this Indianapolis Star story today by Jon Murray. A few quotes from the story:

Laura and Scott Bell took on their school district's new dress code, but their lawsuit was booted from court after they missed critical deadlines and pressed claims that a judge deemed frivolous.

Four months later, the judge has ordered them to pay up for the trouble.

The Bells now are on the hook for $40,931.50, the amount Anderson Community Schools said its law firm charged for fending off the couple's lawsuit in July and August. The couple represented themselves in court.

U.S. District Judge John D. Tinder's decision underlines the risk of wading into legal waters without a lawyer. The danger is higher in litigation, where paying the winning side's attorney fees is common.

"What in the hell are we supposed to do?" Laura Bell asked, noting that the amount is more than the family's annual income. "It's flat ridiculous."

From a side-bar:

The case at a glance

Scott and Laura Bell filed their lawsuit in July. It challenged a strict dress code adopted by Anderson Community Schools, citing violations of Indiana's guarantee of a free public education and their children's rights to free expression.

A U.S. District Court judge granted summary judgment to the school district in August because the Bells had not met deadlines to detail evidence. He also wrote that the Bells, as nonlawyers, could not represent their five school-age children and stepchildren in court and that other claims were frivolous.

The judge sent the remaining state claims back to Madison Circuit Court, where the case is still open but has been dormant. The Bells say they now want it dismissed. [ILB emphasis added]

Note that the U.S. Supreme Court made a narrow exception to the general rule that parents may not represent their children in court in last term's decision in Winkelman v. Parma School District, where, according to SCOTUSBlog, "the Court decided that parents of a disabled child have an independent right to enforce the federal law on public education of children with disabilities. Thus, they do not have to have an attorney. The rights of the parents, the Court found, are independent of those of their child." [See 5/21/07 ILB entry here]

The ILB has been unable to find Judge Tinder's decision online, assuming it has been issued recently. There is the 25-page opinion from August 7th, linked to in this ILB entry from that date.

More: Here it is -- a 6-page "entry on defendant's motion for attorneys' fees," dated Dec. 13th, and the 2-page "order awarding attorneys fees" in the amount of $40,931.50.

Posted by Marcia Oddi on December 24, 2007 09:28 AM
Posted to Ind Fed D.Ct. Decisions

Sunday, December 23, 2007

Law - Where do the presidential candidates stand on signing statements?

Charlie Savage of the Boston Globe has written an article on where the candidates stand on signing statements, based on a Globe survey. The article is titled "Candidates on executive power: a full spectrum - They assess use of signing statements."

Posted by Marcia Oddi on December 23, 2007 12:41 PM
Posted to General Law Related

Saturday, December 22, 2007

Ind. Courts - "Delaware County ahead of the curve in addressing child abuse cases"

"Delaware County ahead of the curve in addressing child abuse cases: County's Child Advocacy Center improves communication among local agencies representing victims of child abuse," is the headline to this story by Gail Koch in today's Muncie Star-Press. A quote from the lengthy story:

Child abuse advocates say no matter how hard they try, cases of child abuse can fall through the cracks. But local officials say Delaware County is "ahead of the curve" in combating child abuse and neglect with the county's new Child Advocacy Center (CAC). Statewide, there are about 10 to 12 fully developed centers, according to McKinney, with about 400 child advocacy centers in place nationwide.

Located inside the former Morrison-Mock Elementary School, Delaware County's CAC is a component of Meridian Service's Suzanne Gresham Center. Its major focus is to offer a safe environment for law enforcement and Child Protective Services to interview children involved in child abuse investigations.

Posted by Marcia Oddi on December 22, 2007 02:17 PM
Posted to Indiana Courts

Environment - More on: Hearing in Edwardsville today on proposed Duke Energy power plant

Updating this ILB entry from Dec. 20th, here are further reports on the hearing.

Mark Wilson reported in the Evansville Courier & Press later the morning of the 20th:

Opponents of a 630 megawatt power plant proposed for Knox County say they will boycott a state hearing on its proposed air pollution permit today to protest environmental officials' refusal to extend the time for public comment. * * *

The Indiana Department of Environmental Management denied a request to extend the public comment period beyond its Dec. 31 deadline. However, when it set the comment period the agency made it 45 days. Typically, the public is given only 30 days to comment on pollution permits. Such comments must be answered in written document included with the final permit.

Dave Menzer, of the Citizens Action Coalition of Indiana, said the timing of the hearing during the holiday season was problematic because it made it difficult for concerned citizens to research and file informed comments.

The following day, Dec. 21st, Wilson reported in a lengthy story:

BICKNELL, Ind. ---- Opponents of a new $2 billion coal-fired power plant Duke Energy is proposing to be built at Edwardsport, Ind., cite concerns of higher electricity rates and in increased pollution from the plant.

But those weren't concerns expressed by the more than 600 Knox County residents attending a public hearing Thursday evening on the plant's air pollution permit.

Miles of signs supporting the project lined the road leading to North Knox High School where the Indiana Department of Environmental Management held the three-hour hearing on the air pollution permit for the proposed 630-megawatt power plant.

"IGCC Yes!" the signs declared in bold red letters from almost every yard along the route.

Instead of burning coal directly, it would be designed to use a new, largely untried "clean coal" technology called integrated gasification combined cycle, or IGCC.

The process converts coal into a synthetic gas used to power the turbines that generate electricity.

Duke is proposing to create the new power plant by modifying its existing, conventional plant.

Edwardsport Town Councilman James Newkirk recalled the black spots on the snow from that power plant when he was a child.

"Edwardsport wants this power plant," he said.

Newkirk was one of dozens of speakers who said they favored not only the jobs the revamped power plant would provide but also its lower pollution levels. When former State Rep. John Gregg asked for a show of support for the plant from those in the auditorium, nearly every hand went up.

Posted by Marcia Oddi on December 22, 2007 02:07 PM
Posted to Environment

Ind. Decisions - "Judges uphold twins' adoption"

Reporting on yesterday's COA opinion in the case of Adoption of Infants H., Marion Co. Div. of Indiana Dept. of Child Services v. Stephen Melinger [see ILB entry here], Keith Manning of the Indianapolis Star writes:

The Indiana Court of Appeals on Friday rejected an effort by state child welfare officials to block a New Jersey man's controversial adoption of twins born in Indianapolis.

At the heart of the case was the state's contention that the children were ineligible for an out-of-state adoption and that the rules governing such adoptions were broken.

But on a 3-0 decision, the Court of Appeals rejected those arguments by the Department of Child Services and affirmed the adoption of Kathy Zee and Karen Zaria Melinger. Stephen F. Melinger hired a surrogate mother more than two years ago, when he was 58. * * *

Melinger filed an adoption petition April 13, 2005. There were numerous court hearings and motions by the state during the next 18 months. The adoption was finalized in October 2006.

In the ruling, appeals court judges said many of the doubts raised by DCS attorneys were the result of mistakes by the agency itself.

For example, DCS attorneys said in their appeal that Indiana courts could not grant the adoption because the girls were not residents of the state. But the agency failed to make that claim during the initial adoption hearing, which the judges ruled made the point moot for appeal.

Indiana law says children must be considered "hard to place" before they can be adopted by someone from outside the state. DCS attorneys argued that the twins did not meet those criteria, which include such factors as race, ethnic background, disability or being siblings.

The court found "remarkable DCS' allegation the twins are not a 'sibling group that should be placed in the same home.' . . . Twins are siblings from birth."

The department also argued that the adoption did not meet the requirements of the Interstate Compact on the Placement of Children, which governs adoptions across state lines.

But the appeals court judges ruled that it was up to DCS to raise such concerns during the initial court proceedings. Failing to do so is a mistake the appeals court cannot reverse.

"DCS . . . is responsible for any error in the trial court's failure to comply," the judges wrote. "DCS cannot now be heard to complain about the trial court's noncompliance."

Posted by Marcia Oddi on December 22, 2007 06:19 AM
Posted to Ind. App.Ct. Decisions

Friday, December 21, 2007

Ind. Decisions - Transfer list for week ending December 21, 2007

Here is the Indiana Supreme Court's transfer list for the week ending December 21, 2007. Be sure to view all 4 pages.

There was one granted this week: Travelers Casualty and Surety Co., et al. v. United States Filter Corp., et al. See this ILB entry from earlier today for more 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 December 21, 2007 04:14 PM
Posted to Indiana Transfer Lists

Ind. Decisions - "Appeals court stymies EC in cash bout" [Updated]

Today's 38-page COA opinion in the case of City of East Chicago, Indiana v. East Chicago Second Century, Inc., RIH Acquisitions, et al (see ILB entry here, 2nd case) is already the subject of a brief NWI Times story:

INDIANAPOLIS | The Indiana Court of Appeals dealt East Chicago a setback today in its two-year legal battle to win control of millions in casino-funded community development dollars.

The city, led by Mayor George Pabey, wants the courts to void a pair of agreements that steer $8 million a year to the Foundations of East Chicago, a nonprofit, and East Chicago Second Century, a for-profit developer. Until recently, both groups received the casino subsidies under a 1994 deal former Mayor Robert Pastrick brokered to bring riverboat gambling to the lakefront city.

The appeals court denied the Pabey administration's motion for summary judgment, upholding the ruling Marion County Judge Cale Bradford made in June 2006. The ruling sets the stage for a trial on the merits of the case, though the city could instead ask for a rehearing or appeal to the Indiana Supreme Court.

The Pabey administration argues the Foundations and Second Century, both of which are run by former Pastrick allies, have squandered huge chunks of the casino cash on salaries and overhead. Indiana Attorney General Steve Carter has backed up those allegation in financial investigations of both groups.

The Pabey administration contends the people of East Chicago would be better served if the casino subsidies are turned over to the city. It has found success before the General Assembly and the Indiana Gaming Commission, but the court battle has prevented the money from flowing to the city.

For more, read The Times on Saturday.

[Updated 12/22/07] Patrick Guinane has the full story here in the NWI Times. And here is coverage from Christin Nance Lazerus of the Gary Post-Tribune.

Posted by Marcia Oddi on December 21, 2007 03:11 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Judge rules in Terre Haute mayoral Hatch Act challenge [Updated]

Updating this ILB entry from earlier this afternoon, here is Judge David R. Bolk's 14-page opinion in Kevin D. Burke v. Duke Bennett (Dec. 21, 2007).

[Updated 12/22/07] Austin Arceo of the Terre Haute Trib-Star reports on the ruling today:

Though a Vigo County judge agreed that Mayor-elect Duke Bennett was affected by a law limiting political activity, a challenge came too late to overturn his election victory.

Judge David Bolk, of Vigo County Superior Court Division 3, ruled that Bennett is eligible to take the city’s top executive office. Mayor Kevin Burke, who lost by 110 votes to Bennett last month, contested the election results by challenging Bennett’s eligibility due to the Hatch Act, a federal law that limits the political activity of employees of some not-for-profits receiving federal money, such as Head Start funding. * * *

Bennett’s attorneys contended that the mayor-elect’s role with the Hamilton Center’s Head Start funding was so insignificant that Bennett was not subject to the Hatch Act.

Burke’s side said that Indiana law prevented Bennett from taking office if he was subject to the federal act.

But Bolk ruled that, since Bennett was now the mayor-elect and not a candidate, which is written in the state law, he is not affected by the Indiana statute.

He also stated that Bennett cannot be disqualified under the state law because he has not taken office.

“At the time of taking mayoral office, Bennett will no longer be employed at the Hamilton Center,” Bolk stated in the ruling. “Thus, when he is assuming office, he will no longer be employed by the Hamilton Center and, consequently, will not be subject to the” Hatch Act.

Bolk cited a previous Indiana case in which the court “held that ineligibility must exist at the time the term of the office begins.” * * *

“The ruling itself begs for an appeal,” Burke said during a phone interview Friday, “but I have to tell you, I’m running out of gas.” * * *

Burke attorney Ed DeLaney said this case has been the most unusual he’s seen. He also said the issue of a candidate’s qualification rarely comes up “because people don’t normally do what Mr. Bennett did.”

Bennett attorney James Bopp Jr. said that Burke had a claim, but failed to act. Bopp also said that Burke thought this challenge was his trump card to win another term if he lost the election, “and instead the trump card came up a joker.”

Burke’s lawyers on Thursday also filed paperwork in which they indicated they won’t appeal the recount, DeLaney said.

Burke said that the recount won’t be challenged because it “would be counter-productive to what actually needs to be done,” which is improve how elections are administered.

Bopp said that everything is final and Bennett will take office. The attorney also said that he was pleased that voters “get their choice for the new mayor” based on Bolk’s ruling.

“It’s a pretty complex question that he’s been dealing with, and I thought it was thoughtful and well-reasoned,” Bopp said, “and … I’m confident it would be sustained on appeal.”

Burke said that he understands that people are growing weary of the situation, and he’ll decide on a potential appeal soon, though it was not determined Friday.

“So like I said, today’s not the day to make that important of a decision,” Burke said. “Emotions are a little raw, and you don’t make your best decision when you’re feeling that way.”

Posted by Marcia Oddi on December 21, 2007 03:03 PM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Insanity defense forces courts to ask for more money"

Aleasha Sandley of the Crawfordsville Journal Review reported this lengthy and interesting story yesterday that began:

In the past few months, Montgomery County Circuit Court has seen an outbreak in the number of criminal defendants using the insanity defense, and it’s costing the county money.

At a recent county council meeting, Circuit Court Judge Thomas Milligan appeared before the council to request that money from other areas of the court’s budget be transferred to psychiatric services to cover the expenses of dealing with those who claim they are not responsible for their actions due to mental disease or defect.

Milligan’s court usually sees one or two defendants a year who use the insanity defense, but he has seen five or six cases since summer, he said.
“It’s a rare thing, traditionally, that we have had any,” Milligan said.

When an attorney, either a public defender or private counsel, enters an insanity defense, the court is obligated to provide two psychiatric evaluations, which cost $1,200-$2,400 each, he said.

“That’s $3,000-5,000 per person, which really gets expensive,” he said.
Montgomery County has a contract with Wabash Valley Mental Health for psychiatric services, but since summer, the hospital has been unwilling to do the evaluations, citing understaffing as the reason. This has made the evaluations far more expensive for the county, Milligan said.

“This is sort of like the stars all aligned and it’s raining on us all at once,” he said.

You may want to read the rest of this long article.

Posted by Marcia Oddi on December 21, 2007 02:21 PM
Posted to Indiana Courts

Ind. Decisions - "Briefing complete in Indiana voter id case"

Prof. Rick Hasen of Election Law Blog has sent a note headed "Briefing complete in Indiana voter id case," plus a pointer to this entry, reminding us that the oral argument is January 9, 2008.

Check this Nov. 14th ILB entry for links to sources of all briefs and all legal documents in the Indiana voter ID cases.

Posted by Marcia Oddi on December 21, 2007 02:15 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit issues Indiana decision today

In Elizabeth A. Bright v. Hill's Pet Nutrition and Colgate-Palmolive (SD Ind., Judge Hamilton), a 9-page opinion, Chief Judge Easterbrook writes, beginning on p. 6:

All of this is so straightforward that the reader must be wondering why we have bothered to recap it in a published opinion. The fact that the district judge balked, in mid-trial, at implementing the Morgan rule is one reason. That Hill’s Pet Nutrition has stoutly defended the district court’s decision, when it should have confessed error in light of Isaacs (released after this case was tried), is another.

According to the employer, Isaacs is irrelevant because the facts at the trial of Bright’s suit differ from the facts in the summary-judgment record of Isaacs’s claim. That the proof differs is true enough; that’s inevitable even when two claims arise from the same workplace at roughly the same time. But what has this to do with rules of law? Counsel for Hill’s Pet Nutrition appears to believe that rules of law shift from case to case, so that anyone who “ought” to win (as Hill’s Pet Nutrition is sure that it should) must have the benefit of some favorable legal rule. That approach is nothing less than a challenge to the proposition that there are rules of law at all; it is a claim that every case should be tried “on its own facts” in a kind of law-free zone. We doubt that the employer would be so ready to jettison rules that favored its position; no more can it avoid legal rules that favor the plaintiff. Every case will have its own factual pattern, but the law does not change with the facts. * * *

The judgment in favor of Colgate-Palmolive is affirmed. The judgment in favor of Hill’s Pet Nutrition is reversed, and the case is remanded for a new trial.

Posted by Marcia Oddi on December 21, 2007 02:06 PM
Posted to Ind. (7th Cir.) Decisions

Law - More on "Louisville panel opposes panhandling ordinance"

"Metro Council OKs restrictions on panhandling" is the headline to a story today in the Louisville Courier Journal reported by Dan Klepal. An earlier story was reported in this Dec. 11th ILB entry. From today's story:

The ordinance, approved 18-8, will take effect with Louisville Mayor Jerry Abramson's signature. Spokesman Chad Carlton said the mayor supports the ordinance and will sign it.

It will replace an existing panhandling ordinance that bars begging everywhere. But the current ordinance is seldom enforced because it is overly broad, and could apply to things such as charities or Girl Scout cookie sales, said Bill O'Brien, an assistant county attorney.

Convictions can bring up to a $250 fine and 90 days in jail, the same as in the current ordinance.

Council members David Tandy, D-4th District, and George Unseld, D-6th, sponsored the ordinance, which originally outlawed so-called "aggressive" panhandling. It went through several changes in the past three months.

Most notably, "aggressive" was dropped in favor of "menacing" behavior while begging.

The type of begging that could bring arrest includes approaching or following pedestrians; repetitively soliciting despite refusals; the use of abusive or profane language; unwanted physical contact; and the intentional blocking of vehicular or foot traffic.

"Menacing" behavior already is illegal under state law, and is defined as any activity that makes a "reasonable" person fear for his or her safety.

Two provisions were struck from the original ordinance: Panhandlers will still be allowed to ask for money after dark and within six feet of an entrance to a public building.

Posted by Marcia Oddi on December 21, 2007 02:02 PM
Posted to General Law Related

Ind. Decisions - Judge rules in Terre Haute mayoral Hatch Act challenge

Austin Arceo reports today in the Terre Haute Trib-Star that:

A local judge this morning ruled that Mayor-elect Duke Bennett is eligible to take office Jan. 1.

Judge David Bolk, of Vigo County Superior Court Div. 3, ruled in Bennett's favor in a case challenging his candidacy.

Mayor Kevin Burke, who lost to Bennett by 110 votes in the election last month, contended that the Hatch Act disqualified Bennett.

The Hatch Act is a federal law that limits the political activity of employees of some not-for-profits receiving federal money, such as Head Start funding.

Bennett is the director of operations at Hamilton Center Inc., which operates an Early Head Start program.

Bolk stated in his ruling that no evidence indicates Bennett "willfully flouted" the Hatch Act.

"Although the Court finds Bennett was subject to the Hatch Act, it is clear that the violation was not willful or intentional," Bolk wrote in the ruling.

Bolk also wrote in the ruling that Bennett could not be disqualified under the Indiana law that Burke's attorneys contended would prevent the mayor-elect from taking office.

See the most recent (Dec. 17th) ILB entry on this case here.

Posted by Marcia Oddi on December 21, 2007 01:57 PM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Gary judge loses consulting contract with county"

Bill Dolan reports in the NWI Times today:

CROWN POINT | Gary attorney Deidre Monroe became the latest lawyer to lose a consulting contract in Lake County government in a crackdown on double dipping.

The Lake County Board of Commissioners voted this week to refuse Monroe a contract that would have paid her as much as $12,000 in 2008 to provide legal advice for county Recorder Michael Brown.

Brown said Friday he will talk with commissioners to see if they will reconsider funding Monroe, who has worked in his office for several years.

"She has been working with me to investigate people who are filing bogus deeds to get homestead credits," Brown said. "This is a very serious problem, and I need her help."

Commissioner Fran DuPey, D-Hammond, said commissioners are cracking down on county employees who get extra pay by becoming consultants in addition to their county jobs.

Commissioners also refused to renew consulting contracts for four Lake Criminal Court public defenders recently who also work as public defenders in different county courts.

Monroe is listed as a public defender in the county's juvenile court, earning a salary of $28,000 per year. She also serves as Gary city judge.

Brown said he previously had an agreement with commissioners that he would pay Monroe out of user fees he charges those who record documents in his office.

Posted by Marcia Oddi on December 21, 2007 01:54 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

For publication opinions today (4):

In a much reported adoption case [see ILB entry - "State appeals twin girls' adoption by N.J. man" from Jan. 21, 2007], Adoption of Infants H., Marion Co. Div. of Indiana Dept. of Child Services v. Stephen Melinger, the COA today issued a 23-page opinion written by Judge May:

The Marion County Department of Child Services (“DCS”) appeals the adoption granted to Stephen Melinger.

DCS raises the following restated issues: 1. The court erroneously granted the adoption without a period of placement and supervision; 2. The court lacked jurisdiction over the children because they were not Indiana residents; 3. The court lacked authority to grant the adoption to a non-resident because the children were not “hard to place” pursuant to Ind. Code § 31-9-2-51; and 4. The court failed to comply with the Interstate Compact on the Placement of Children, Ind. Code ch. 31-28-4.

Melinger raises two issues on cross-appeal: 1. DCS has no standing to appeal because it did not appeal the court’s July 18, 2006 entry that ordered DCS’s “responsibility for the placement of these children is terminated effective today.” (Tr. at 281); and 2. The court erred in denying Melinger’s motion to dismiss the CHINS case.

We affirm.

In City of East Chicago, Indiana v. East Chicago Second Century, Inc., RIH Acquisitions, et al , a 38-page opinion with a partial dissent, Judge May writes:

The City of East Chicago (“East Chicago”) appeals the denial of its motion for summary judgment and the dismissal of most of its counterclaims and cross-claims against the East Chicago Community Development Foundation and the Twin City Education Foundation (collectively “the Foundations”) and East Chicago Second Century, Inc. (“Second Century”). It also asserts the trial court should not have consolidated the contract action with the review, in another branch of the same court, of an administrative action involving the same parties. We affirm in part, reverse in part and remand. * * *

CONCLUSION. East Chicago was not prejudiced by the consolidation of the civil court review of the administrative action and the summary judgment and dismissal action. East Chicago’s summary judgment motion was properly denied, and Counts I through VIII of its cross-claims and counterclaims were properly dismissed. However, the trial court should also have dismissed Count IX. We accordingly affirm in part, reverse in part, and remand.

SHARPNACK, J., concurs.
BAILEY, J., concurring in part, concurring in result in part with separate opinion. [which begins] I concur in result, but write separately in light of the majority’s conclusion that the letter agreements do not terminate until revocation of the gaming license. On all other issues, I concur.

As an initial matter I must note that, incredibly, East Chicago argues that the letter agreements are not enforceable, yet asks to receive increased payments through their enforcement.

In Andrew H. Miller v. Indiana Dept. of Workforce Development, et al, a 17-page opinion, Judge Robb writes:

Andrew Miller appeals from the decision of the Indiana Department of Workforce Development Review Board (the “Board”) affirming the decision of the Administrative Law Judge (“ALJ”), who found Miller ineligible for unemployment compensation benefits. Miller raises two issues, which we restate as whether Miller was denied due process based on inadequate notice of the issues to be decided at his hearing before the ALJ and whether the Board’s decision was unsupported by its findings. Concluding that Miller was denied due process and that the Board’s findings do not support its decision, we reverse.

Billy J. Lemond v. State of Indiana - "Billy J. Lemond appeals his convictions of and sentences for attempted murder, a Class A felony,1 and criminal recklessness, a Class D felony.2 We affirm. * * *

"Lemond raises several issues, which we restate as follows: (1) whether the failure to give instructions on lesser included offenses was fundamental error; (2) whether the jury verdicts were inconsistent; (3) whether the trial court abused its discretion by disallowing questions submitted by the jury; (4) whether counsel was ineffective; (5) whether the trial judge was biased; and (6) whether his sentence is inappropriate."

NFP civil opinions today (3):

John E. Lewchanin v. Madeleine M. Lewchanin (NFP) - "John E. Lewchanin (“John”) challenges the trial court’s interpretation of his father’s will and trust. * * * CONCLUSION. Settlor intended to permit Madeleine and her children to receive the Trust’s net income, and corpus as necessary, and to gradually distribute the corpus of the Trust to his other beneficiaries. The distribution to the beneficiaries was to begin at Settlor’s death. Separate trusts would frustrate Settlor’s intent to provide for Madeleine and her children. We accordingly affirm in part, reverse in part, and remand."

William Lee Pallett v. Indiana Parole Board (NFP) - "William Lee Pallett appeals the dismissal of his petition for writ of habeas corpus. Pallett alleges his parole was revoked after he was discharged. Finding his petition is not frivolous, we reverse and remand. * * *

"Pallett’s petition alleges the Department of Correction “turned him over” to the Monroe County Jail, thus discharging his life sentence. He further alleges, because he was discharged from the Monroe County Jail in January 2003, there was no parole to revoke in October 2003. These allegations create an arguable basis in law and fact that he is entitled to release, and there is no suggestion his petition is made to harass a person. While the documentary evidence Pallett submitted to the trial court does not entirely support his allegations, Pallett did not have a burden at this stage of the proceeding to present all possible evidence. His only burden was to show an “arguable basis” in law and fact. See I.C. § 35-58-1-2. Accordingly, he should be permitted to proceed."

Borovilos Restaurant Corporation, II v. Lutheran University Association, Inc. (NFP) - "Broadway Café raises the issue of whether the trial court abused its discretion in granting a preliminary injunction that did not enforce the entire scope of its easements for ingress, egress, and parking. * * *

The arguments and cases proffered by Broadway Café relate to a permanent injunction. That is not the situation before us. Here, a preliminary injunction was ordered to temporarily freeze all actions regarding the Kelsey parcel in order to protect both parties’ interests while the merits of the case were tried. The trial court concluded that removal of the fencing that enclosed the parking spaces east of the demolition area would adversely affect the public safety. Thus, the scope of the preliminary injunction was narrowly tailored to protect the interests of all parties involved. Broadway Café has not demonstrated that the trial court abused its discretion by narrowing the scope of the preliminary injunction in order to protect the public interest. Affirmed."

NFP criminal opinions today (2):

Marie Graham v. State of Indiana (NFP)

Brandi N. Lewis v. State of Indiana (NFP)

Posted by Marcia Oddi on December 21, 2007 01:16 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court grants transfer in Wheelabrator case

The formal transfer list will follow later today, but the ILB has received notice that the case of Travelers Casualty and Surety Co., et al. v. United States Filter Corp., et al. has been granted transfer.

According to a story in Business Insurance.com, quoted in this July 27th ILB entry:

Companies that acquire liabilities through mergers or acquisitions have the right to seek coverage under the acquired companies’ occurrence-based insurance policies for losses that occurred before the transaction, an Indiana appellate court has ruled.

The Indiana Court of Appeals also found in Travelers Casualty and Surety Co. et. al vs. United States Filter Corp. that the insurance company doesn’t have to approve the transfer of coverage to the acquiring company for it to have the right to tap the policies when necessary.

"Insured's coverage passes to acquirer, court rules" was the heading to a July 25th Indy Star story, cited here.

See the ILB entry on the July 24th COA opinion here.

Posted by Marcia Oddi on December 21, 2007 09:44 AM
Posted to Indiana Transfer Lists

Ind. Law - What about "The Year 2007 in Review as seen from the Indiana Law Blog"?

The ILB ended last year with a 13-page "Indiana Law Year 2006 in Review."

And here is the link to the 9-page review for law year 2005, titled "The Year in Review as seen from the Indiana Law Blog."

The Review takes quite a bit of time to put together each year. The question is, is it worth doing? Let me know.

Posted by Marcia Oddi on December 21, 2007 07:33 AM
Posted to Indiana Law

Ind. Courts - "A Hamilton County judge on Thursday threw out a plea agreement made with an Indiana National Guard sergeant" [Updated]

James A. Gillaspy reports in today's Indianapolis Star. The story begins:

A Hamilton County judge on Thursday threw out a plea agreement made with an Indiana National Guard sergeant after learning three of his alleged victims thought the deal was too lenient.

Judge Steven R. Nation said the case against former recruiter Eric P. Vetesy, who had admitted sexually assaulting seven young women, would be reset for trial.

The judge rendered his decision after County Prosecutor Sonia Leerkamp disclosed that three of the women disagreed with her plan to punish Vetesy with community corrections, which could include work release or home detention, and probation.

After she read Nation letters from the two women and addressed her recent contact with a third, Leerkamp said all three asked "that the plea not be accepted" under the current conditions.

Vetesy, 39, Westfield, was indicted in 2005 and charged with a pattern of sexual assaults involving mostly high school girls he recruited. Among the 39 counts he faced was one charge of rape.

Although he went before Nation last month and pleaded guilty to 10 counts -- including sexual assault charges involving each of the women named in the case -- Nation told Vetesy and Leerkamp in a hearing Thursday that the proposed punishment did not fit the crime.

"The court cannot accept the plea agreement in that it's not giving the court proper sentencing alternatives," Nation said.

No trial date was set.

[Updated 12/22/07] An AP story today on a somewhat similar case, headlined "Man who admitted sexual misconduct gets probation." The story begins:

NEW CASTLE, Ind. -- A foster father who pleaded guilty to sexual misconduct after he impregnated a 15-year-old girl who had been placed in his home was sentenced to five years of probation.

Darrin K. Reid, 37, will spend three of those years on electronic monitoring under terms of the plea agreement approved this week by Henry Circuit Judge Mary Willis.

[Updated again 12/22/07] Just ran across this story by Stephanie Mojica in the New Albany News & Tribune, reporting on the COA Dec. 13th opinion in Lavern Baltimore v. State of Indiana :

The 53-year sentence of a New Albany man convicted of sexually assaulting a deaf woman was upheld by the Indiana Court of Appeals, according to court records.

Lavern Baltimore, 47, unsuccessfully appealed a ruling by Floyd County Superior Court Judge Susan L. Orth on the convictions for class A felony burglary resulting in bodily injury and class D felony sexual battery. * * *

Baltimore was convicted of breaking into his neighbors’ apartment in 2006 and assaulting a deaf woman who lived there by grabbing her neck, dragging her into the hallway and putting his hands under her shorts and also onto her breasts, according to a probable-cause affidavit filed in Floyd Superior Court.

“To victimize someone so vulnerable, as was the victim in this case, is an example of the ultimate predator,” Floyd County Prosecutor Keith Henderson said in a telephone interview Thursday.

After a jury found Baltimore guilty, Orth levied the maximum sentence on both charges.

Posted by Marcia Oddi on December 21, 2007 07:18 AM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Still more on: "St. Joseph County judge has stopped sending female offenders to the Indianapolis Juvenile Correctional Facility"

The Indianapolis Star editorial this morning is headed "Governor must act now on juvenile justice." Some quotes:

Gov. Mitch Daniels and Department of Correction administrators need to swiftly answer the alarm sounded this week by a St. Joseph County judge over conditions at the Indianapolis Juvenile Correctional Facility.

Judge Peter Nemeth says the juvenile prison doesn't have enough staff members to keep inmates safe and lacks sufficient educational and rehabilitative programs. The judge also has raised concerns about sexual activity involving inmates and staff. He won't send additional female inmates to the facility until conditions improve.

Nemeth's allegations merit Daniels' personal attention for two reasons. The first is Indiana's poor history in operating juvenile prisons. The state and the U.S. Department of Justice reached an agreement last year on a plan to confront rampant violence and sexual activity at juvenile facilities. The judge's new accusations mirror some of the DOJ's concerns.

The second reason for Daniels' involvement is the judge's complaint that he was unable to receive a satisfactory response from DOC Commissioner J. David Donahue. "(Donahue) basically said he thought they were doing a good job and said you can't believe anything the girls say,'' Nemeth told The Star's Tim Evans.

And, as reported by WISH TV yesterday (see the ILB entry directly below):

I-Team 8 caught up with the Governor and asked him what he plans to do. "Well, we'll read the letter. [We also got] a very positive audit. His [the judge's] opinion appears to be a very isolated one. And I asked this morning, has there been any serious injury? And the answer to that was "no." But, we'll take his letter seriously," said Gov. Daniels.

The Star editorial concludes:

At the very least, the governor needs to call together the judge, the review panel and DOC officials to address the issues raised in Nemeth's letter. There then needs to be a public explanation of how DOC will correct any problems that are documented.
Indiana has failed too often in how it treats juvenile inmates to brush aside Nemeth's accusations. An aggressive review is needed.

Posted by Marcia Oddi on December 21, 2007 06:48 AM
Posted to Indiana Courts

Thursday, December 20, 2007

Ind. Courts - More on: "St. Joseph County judge has stopped sending female offenders to the Indianapolis Juvenile Correctional Facility"

WISH TV has an interesting story this evening by Karen Hensel on the St. Joseph County judge's letter re the Indianapolis Juvenile Correctional Facility, blogged earlier today in this ILB entry. Some quotes:

In a letter to Gov. Daniels, St. Joseph Probate Judge Peter Nemeth calls Indianapolis Juvenile Correctional Facility "neither safe nor productive."

Judge Nemeth is refusing to send girls to the Indianapolis Juvenile Correctional Facility until problems there are corrected.

The I-Team 8 investigation "Juvenile Justice" exposed the same problems more than two years ago, the lack of safety for the girls, and the lack of education and appropriate mental health care.

Over the course of those two years, teachers and mental health counselors at the former Indiana girls' school have spoken with and sent letters to state legislators about the problems.

The legislators did nothing to help solve them.

Now the judge is asking Indiana's Governor for action.

"I would like to see the Governor take the leadership role in seeing that the matter is corrected, to examine closely what's going on, not only in the girls' school, but perhaps the whole department, and taking steps to ensure that it is adequately staffed, adequately funded, that there are positive programs in effect which will help children get rehabilitated," said Judge Nemeth.

I-Team 8 caught up with the Governor and asked him what he plans to do.

"Well, we'll read the letter, girls school for a very positive audit. His opinion appears to be a very isolated one. And I asked this morning, has there been any serious injury? And the answer to that was "no." But, we'll take his letter seriously," said Gov. Daniels.

Indianapolis Juvenile has had four Superintendents since David Donahue was named Commissioner of the Department of Correction.

Since then, I-Team 8 has documented a mass exodus of teachers and mental health counselors who devoted their careers to helping the troubled girls at the facility.

Many of the professionals who left the facility told I-Team 8 they left because of poor management and decision making from the DOC central office.

Indianapolis Juvenile Correctional Facility now houses 177 teenage girls and 81 teenage boys.

Posted by Marcia Oddi on December 20, 2007 06:53 PM
Posted to Indiana Courts

Courts - Still more on: Florida "Lawyer may lose license for blog entry on Broward judge"

Here is the initial ILB entry from Dec. 14th. It was follwed by this entry from later that same day.

Today Jordana Mishory of the Daily Business Review has an interesting article titled "Attorney Whose Blog Post Blasted Controversial Judge Fights Bar Investigation." The lengthy article begins:

Do lawyers check their free speech rights at the courthouse steps?

That's exactly what some are wondering after it was disclosed that a criminal defense attorney is facing Florida Bar ethics charges for critical comments he posted on a Web log about a controversial Broward, Fla., judge.

A number of constitutional experts claim attorneys give up the full force of the First Amendment when they join the Bar, but other lawyers say they have every right to speak their mind.

The debate resurfaced after the Bar found probable cause against Fort Lauderdale, Fla., criminal defense attorney Sean Conway for calling Broward Circuit Judge Cheryl Aleman an "evil, unfair witch" who is "seemingly mentally ill" on a blog about the courthouse. Formal charges against Conway are pending.

Posted by Marcia Oddi on December 20, 2007 05:18 PM
Posted to Courts in general

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

Supplementing this ILB entry from Tuesday, Dec. 18th centering on Tippecanoe County, Bob Kasarda has this story today in the NWI Times:

VALPARAISO | A sex offender was sentenced Wednesday to six months behind bars after pleading guilty to violating the law by living within 1,000 feet of Myers Elementary School in Portage.

Jerry Coates, 31, and other sex offenders were not in violation of the state law until a tougher version took effect July 1, 2006.

Police said they told Coates of the change Sept. 12, 2006, but he had not moved as of Jan. 11. He was arrested on a sex offender registry offense, which is a felony.

Porter Superior Court Judge Julia Jent, who was sitting in Wednesday for Porter Circuit Court Judge Mary Harper, accepted the sentence prosecutors and defense attorney Ken Elwood had agreed to.

Several sex offenders who had been allowed to live near elementary schools, parks and youth centers in Porter County were told they had to move after Indiana revised its sex offender laws.

Because of the hardship involved in uprooting people whose living arrangements suddenly changed in status from legal to illegal, offenders in Porter County were given six months to comply.

Prior to the change in sex offender laws, a condition -- not dictated by law -- of some people's probation or parole prevented some offenders from living within 1,000 feet of a school, park or youth center.

Several interesting NWI Times reader comments follow the story.

Posted by Marcia Oddi on December 20, 2007 05:10 PM
Posted to Indiana Law

Ind. Decisions - More on: 7th Circuit issues Indiana-based meth sentencing decision today

Today's 7th Circuit opinion in the ND Indiana case, U.S. v. Mendoza [see ILB summary from earlier today] is referenced in Prof. Douglas Berman's frequently cited Sentencing Law and Policy blog in this entry today, headed "Circuits continue to have no trouble finding within-guideline sentences reasonable."

Posted by Marcia Oddi on December 20, 2007 04:49 PM
Posted to Ind. (7th Cir.) Decisions

Environment - More on: Hearing on Great Lakes Compact today at 1 pm

Today's AP story on the SB 45, the Great Lakes Compact, points out what the ILB should have picked up on in this entry yesterday -- the main author of the bill is the highly respected Senator Beverly Gard, long-time chair of the Senate Energy and Environmental Affairs Committee. Gard's committee held a public hearing on the bill yesterday. From the AP story:

A state lawmaker is pushing legislation that calls for Indiana to join a regional compact intended to prevent arid Sun Belt states from tapping the Great Lakes' waters.

Sen. Beverly Gard, R-Greenfield, said her bill is supported by business and environmental groups that want Indiana to sign onto the Great Lakes Water Resources Compact.

She said it's "extremely important" for Indiana to protect the Great Lakes waters it now uses for business and recreational purposes from drought-stricken states in the West and South.

"We don't want to be in the situation that New Mexico is in or that Georgia is in, so it's something that deeply concerns all of us," she said.

Among the eight Great Lakes states, only Minnesota and Illinois have ratified the agreement, but legislation is being discussed in Indiana, Michigan, New York, Ohio, Pennsylvania and Wisconsin.

Congress also must give its approval to the compact, which the Great Lakes states' governors and the premiers of Ontario and Quebec agreed to in December 2005, pending legislative approval.

With limited exceptions, the compact would prohibit diverting water from the lakes and the rivers linking them, which hold nearly 20 percent of the world's supply of surface fresh water.

The compact instructs the Great Lakes states to regulate water use and adopt conservation plans.
Gard said there are real "immediate threats" to the Great Lakes -- Erie, Huron, Michigan, Ontario and Superior -- some of which are facing drops in water levels. * * *

On Monday, more than a dozen business and environmental groups testified in favor of Gard's bill before the Indiana Senate's environmental affairs committee, which she chairs.

See also this comprehensive coverage of yesterday's hearing from the Gary Post Tribune.

Posted by Marcia Oddi on December 20, 2007 02:46 PM
Posted to Environment

Indiana Courts - More on "New computerized courts case management system went live in Monroe County Monday"

Updating these ILB entries from Dec. 18th and Dec. 17th, the Indiana Courts JTAC Commitee has issued a release, available here, titled "Odyssey CMS Live in Monroe County & Washington Township, Marion County." Some quotes:

“The eight Circuit Courts in Monroe County and the Washington Township Small Claims Court in Marion County have begun using the Indiana Supreme Court’s ‘Odyssey’ computer system to manage their cases,” Chief Justice Randall T. Shepard said today. “This is a major step forward in the Supreme Court’s goal to equip all Indiana courts with 21st century case management technology.” Washington Township began using the system on December 14 and the Monroe County courts on December 17.

Public information on cases in these courts is available at no charge via the Supreme Court’s website (www.courts.in.gov). This information will expand each time a new court begins to use Odyssey. Public access and connections between Odyssey and law enforcement and other government agencies furthers the Supreme Court’s companion goal to connect Indiana courts’ case management system to those who need and use court information.

Chief Justice Shepard said the pioneering work of the nine pilot courts in Monroe and Marion Counties will benefit the entire state. “Being first can be a point of pride, but it also requires a special commitment. Monroe Circuit Court Presiding Judge Kenneth G. Todd, Monroe Circuit Court Clerk Jim Fielder, and Washington Township Judge Kimberly Brown, and their colleagues and staff gave us the full measure of their input and expertise,” said Shepard. “They have been great partners in this endeavor.” * * *

“A significant upgrade to Odyssey is scheduled to be released in late winter,” Sullivan said, “adding even more features to help Indiana courts and court clerks – and we hope to have many additional courts using Odyssey by next year’s end.” Statewide rollout will follow over the next several years.

Although the Odyssey system is and will be used by local Indiana courts, Sullivan said that the Supreme Court will be responsible for all costs associated with the licensing, maintenance, and further upgrading of the system. “The General Assembly has directed that a portion of court filing fees underwrite the cost of this project,” Sullivan said, “and we are deeply grateful for the Legislature’s confidence in this effort.”

“With more than 1.5 million cases filed in Indiana courts each year, Hoosier courts and court clerks need 21st century case management systems and Hoosier law enforcement officers, lawyers, government agencies, and citizens need timely and accurate court information,” Shepard concluded. “With nine Indiana courts using Odyssey, free public access to their records, and aggressive rollout plans for 2008 and beyond, we are well underway toward meeting those needs.” [emphasis added by ILB]

The ILB has added emphasis because these statements raise questions; there seems to be little transparency re details of the state-wide system and how it will operate. For instance:

• Right now there does not seem to be a way to do across-the-board searches on, for instance, "John Doe." Although only Monroe County courts and Washington Twp. of Marion County small claims courts are online, it looks like one would have to run three searches: Washington Twp., Monroe County Criminal, and Monroe County Civil, and then manually combine the results. Will there be a way to run an across-the-board search as more courts come online?

• The options for public searches are extremely narrow right now. As the ILB said in an earlier entry, there is no way to search for something as elemental as "new cases filed." Will this change? "Even more features" are promised. What are they?

Posted by Marcia Oddi on December 20, 2007 02:02 PM
Posted to Indiana Courts