Wednesday, February 06, 2008

Ind. Courts - "I'll vote for your dad if you vote for my mom!"

"The sons of Allen County Circuit Court Judge Tom Felts have created a Facebook Group in support of the Judge's re-election." So begins this entry this afternoon in Mitch Harper's blog, Fort Wayne Observed.

Posted by Marcia Oddi on February 6, 2008 03:49 PM
Posted to Indiana Courts

Courts - "Oh, to be an in-house lawyer for big pharma".

So wrote the Wall Street Journal Law Blog, in an entry yesterday headed "Eli Lilly in Advanced Talks With Feds over Zyprexa Probe", which is followed by today's entry, headlined "Lawyer’s Email Slip-up Leads to Zyprexa Leak."

Posted by Marcia Oddi on February 6, 2008 01:24 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Philip A. Paulsen v. Marylou Malone , a 7-page opinion, Judge Bradford writes:

Appellant-Defendant Philip Paulsen appeals the trial court’s order granting Appellee-Plaintiff Marylou Malone’s motion to correct error. We restate the issue as whether the thirty-day time limit for a trial court to rule on a motion to correct error in Indiana Trial Rule 53.3(A) begins to run on the date of the hearing or, if the parties submit additional authority, on the date such additional authority is submitted. Concluding that the thirty-day time limit begins to run on the date of the hearing, we reverse and remand.

In J.F. Schrader v. Porter County Drainage Board , a 14-page opinion, Judge Riley writes:

Schrader raises three issues on appeal which we restate as follows: (1) Whether the trial court erred by ruling it was permissible for the Drainage Board to omit documents about E-coli contamination problems in the Swanson-Lamporte Ditch from the record after the documents were presented to the Board during its public hearing; (2) Whether the trial court erred by permitting the Drainage Board to exclude portions of the watershed from the maintenance assessment area; and (3) Whether the trial court erred by approving the flat rate maintenance assessment of the Swanson-Lamporte Ditch, as established by the Board. * * *

As indicated by the Drainage Board during its public hearing of October 12, 2005, a clean-up of a purported E-coli contamination in the Drain would not be the responsibility of the Board and any assessments collected by the Drainage Board could not be used to address that possible problem. Therefore, we conclude that any paperwork with regard to an E-coli contamination, referenced by Schrader and Mr. Hewitt, did not have to be included in the record as it is not pertinent to the establishment of a maintenance fund. * * *

Based on the foregoing, we conclude that (1) the trial court properly ruled that the Drainage Board did not have to admit documents about a purported E-coli contamination; (2) the Drainage Board was justified in excluding portions of the Drain’s watershed from the assessment area; and (3) the Drainage Board’s imposition of a uniform assessment rate was not arbitrary as a matter of law.

NFP civil opinions today (1):

In Desi G. Jones and Richard A. Jones v. Indiana Insurance Company (NFP), a 16-page opinion, Judge Robb writes:

Desi and Richard Jones, pro se, appeal from the trial court’s order dismissing their claims against Indiana Insurance Company (“Insurance”). The Joneses raise several issues, one of which we find dispositive: whether the trial court properly dismissed the Joneses’ complaint based on the ground that it was brought beyond the expiration of a limitation clause in their insurance contract. We also address whether the Joneses’ claims for interference with economic relations, intentional infliction of emotional distress, and negligence state claims on which relief can be granted. We conclude the Joneses’ claims for interference with economic relations and negligence fail to state cognizable claims. However, we also conclude the trial court improperly dismissed the action on its stated ground and remand for further proceedings on the remaining claims.

NFP criminal opinions today (3):

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

Gregory Nurrenberg v. State of Indiana (NFP)

Jason Gibbs v. State of Indiana (NFP)

Posted by Marcia Oddi on February 6, 2008 01:01 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues attorney discipline action

In the Matter of Richard M. Bash is a 6-page, Per Curiam, attorney discipline action:

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action." We find that Respondent, Richard M. Bash, engaged in attorney misconduct by failure to provide competent legal services to one client and attempted sexual misconduct with another client.

The Respondent's 2000 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. USeeU IND. CONST. art. 7, § 4. For his misconduct, we find that Respondent should be suspended from the practice of law in this state for at least 180 days without automatic reinstatement.

Posted by Marcia Oddi on February 6, 2008 12:49 PM
Posted to Ind. Sup.Ct. Decisions

Courts - "Judges can't take Duke case"

Dan Horn reports today in the Cincinnati Enquirer:

Four federal judges in Cincinnati have bowed out of the antitrust case involving Duke Energy.

The chief judge says the problem is that every federal judge in town is a Duke customer, which makes them all potential parties to the class-action lawsuit filed last month against the utility.

The suit accuses the company, which has 680,000 electric customers in southern Ohio, of paying kickbacks to its biggest corporate customers in exchange for their support of a rate increase.
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It seeks damages on behalf of residential customers.

"I'm a customer, as most of us are who live in this area," U.S. District Judge Sandra Beckwith, chief judge for the southern district of Ohio, said. "No one around here could ethically handle the case."

The case has been reassigned three times since it first went to Judge Herman Weber on Jan. 16. Judges Michael Barrett, Susan Dlott and, finally, Beckwith subsequently recused themselves from the case.

Beckwith said all of the judges are customers of Duke and, therefore, have a conflict of interest. Dlott also is married to Stan Chesley, one of the lawyers who filed the lawsuit.

Beckwith sent the case to Columbus this week hoping to find a judge there who doesn't buy gas and electric service from Duke; the company does not serve the Columbus area.

If that fails, Beckwith said, she might have to assign the case to a visiting judge from out of state.

The suit claims Duke signed side deals with big commercial and industrial customers in 2004 to secure their support for a rate increase, later approved by Public Utilities Commission of Ohio.

Duke officials say the deals are common in the industry and had no bearing on the rate-increase approval.

Posted by Marcia Oddi on February 6, 2008 12:37 PM
Posted to Courts in general

Ind. Courts - More on Muncie mayoral election contest

"Republicans today will try to convince a judge to dismiss a lawsuit seeking a special election in Precinct 46' was how a report in the Jan. 23rd Muncie Star-Press began.

Today a story in the Star-Press by Nick Werner begins:

MUNCIE -- Indiana State Police on Tuesday morning confiscated boxes of election materials in connection with an ongoing investigation into last November's mayoral race.

The boxes were moved from the Delaware County Building into a van.
Sgt. Darrell Thornburg, an ISP investigator, would not comment on exactly what authorities confiscated and where they were taking it, referring those questions to Delaware County Prosecutor Mark McKinney.

Efforts to reach McKinney for comment Tuesday were unsuccessful.

McKinney announced last week he was launching a joint investigation into the election with Indiana Attorney General Steve Carter, the Indiana Secretary of State's office and state police.

Both political parties have accused each other of wrongdoing in connection with the election, which saw Republican Sharon McShurley declared the winner at the end of recount proceedings in December. Her Democratic opponent, James Mansfield, had earlier been certified as the race's winner.

The majority of allegations, however, have centered around Democratic City Council member Monte Murphy, who Republicans have accused of illegally collecting absentee ballots in Precinct 18.

Also today, Nick Werner reports:

MUNCIE -- Democrats Monday lost a legal battle to get a special election in Precinct 46, where a problem with absentee ballots cost Jim Mansfield the mayor's race.

Special Judge Joel Roberts of Jay County dismissed a lawsuit by Democrats on the basis that Democrats missed a statutory deadline to file for a special election.

The decision, according to Republicans, essentially ends the election debate and seals Republican candidate Sharon McShurley's fate as the rightful mayor of Muncie.
McShurley took office Jan. 1.

Democrat attorney Mike Quirk, however, argued he would continue to fight to get Mansfield in office.

The judge's ruling left open an opportunity for Democrats to make changes to their lawsuit and file it with the court one more time, Quirk said.

"I don't want to get into too much detail," Quirk said. "I don't want to tip my hand to anybody. But it's not over." * * *

Democrats filed a petition Dec. 27 with Delaware Circuit Court 5 seeking a special election in Precinct 46, to determine the true winner of the mayor's race.

According to Indiana law, only a losing candidate can file a petition for a special election and must do so no later than 14 days after the original election.

Muncie Democrats argued the statutory deadline did not apply in this case because Mansfield was originally certified the election winner, precluding him from filing the special election petition in a timely manner.

Roberts disagreed with Democrats argument, noting that courts have consistently required strict compliance with the statutory requirements in the cases of special elections.

Posted by Marcia Oddi on February 6, 2008 12:23 PM
Posted to Indiana Courts

Ind. Courts - "Judge Phillip I. Adler has filed as a Democrat for re-election to Vigo County Superior Court Division 2"

From the Terre Haute Trib-Star:

Incumbent Judge Phillip I. Adler has filed as a Democrat for re-election to Vigo County Superior Court Division 2, a position he has occupied since Jan. 1, 1997.

Posted by Marcia Oddi on February 6, 2008 12:18 PM
Posted to Indiana Courts

Ind. Courts - "Incumbent Welch exits race for Monroe Circuit Court judge"

Sarah Morin reports ($$) in the Bloomington Herald-Times in a story that begins:

Monroe Circuit Judge David Welch announced Tuesday that he will no longer seek a fourth term, alluding to members of his own Democratic Party dissuading him from doing so.

His four-sentence statement comes less than a week after he said in a prepared statement he would run for re-election.

Welch refused to give details or further comments on his decision to withdraw from the judge’s race or how party members dissuaded him.

“The essence of my decision is in that statement,” Welch said when reached by phone.

Monroe County Democratic Party Chairwoman Lee Jones said Welch called Sunday to inform her of his decision. She said she was astounded, and that no party official had dissuaded him from re-election.

More from the story:

He was first elected as a judge in 1990.

Bloomington attorney Fred Turner announced Tuesday that he is interested in running as a Democrat for the judge’s seat currently held by Welch.

As of Tuesday, no one had officially filed for the seat with the county clerk’s office.

Party chairwoman Jones said she expects a big May 6 primary, which is usually the case when there’s an open judge’s seat because they don’t come open very often.

Judge Welch is the husband of state representative Peggy Welch.

Posted by Marcia Oddi on February 6, 2008 11:37 AM
Posted to Indiana Courts

Ind - Courts - "Bom To Seek LaPorte Superior Court 3"

From the Michigan City News-Dispatch:

Attorney Steve Bom has announced he'll seek the Republican nomination for La Porte Superior Court 3 Judge in the May primary election. * * *

"And I am the only candidate who challenged the retiring judge, Paul Baldoni, twice for this office during his illustrious and honorable tenure."

Bom said having appeared in front of countless judges in courtrooms all over the country, he's seen processes and procedures that work well and others that don't. He said if elected, we'll attempt to implement those changes that will make Superior Court 3 a better, more efficient, court.

Posted by Marcia Oddi on February 6, 2008 11:29 AM
Posted to Indiana Courts

Tuesday, February 05, 2008

Ind. Decisions - More on: "Judge in Behrman case rejects bid for new trial"

Updating this ILB entry from Feb. 14, 2007, the Louisville Courier Journal reports today:

Arguments are set for next month in the appeal of a man convicted of murdering Jill Behrman, a 19-year-old Indiana University student.

The three-member Indiana Appeals Court has set the case for March 20 in Indianapolis.

In 2006, John Myers II was convicted of murdering Behrman, who disappeared in 2000 while cycling. Her remains were found in April 2003.

The appeal filed in September argues that jurors misbehaved and that pretrial publicity tainted the trial. It also questions whether a forensic pathologist’s opinion that Behrman had been raped, even though there was no evidence of sexual assault, should have been admitted.

Posted by Marcia Oddi on February 5, 2008 02:05 PM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Hamilton prosecutor files paperwork to seek circuit court judgeship"

Tania E. Lopez reports in the Indianapolis Star:

NOBLESVILLE, Ind. -- Hamilton County's prosecutor filed Monday to seek the job of circuit court judge.

Prosecutor Sonia Leerkamp's decision to put her name on the Republican ballot came two days before she is expected to settle a disagreement with the County Council -- also all Republicans -- over how she evaluates the employees in her office.

Judge Judith Proffitt announced last week she will not seek re-election, Leerkamp said. Proffitt, who ran as a Republican, did not return calls Monday.

"I found out Friday that Judge Proffitt would not file for re-election, so I thought I'd throw my name in the hat," Leerkamp said. "I've been an attorney for 33 years now, and when I first started as deputy prosecutor, I always had it in the back of my head that I eventually wanted to be judge."

Leerkamp, 60, is in her fourth term as prosecutor. She announced Jan. 18 that she would not run for re-election when her term ends in three years.

In 1993, Proffitt was the second woman to be elected a circuit court judge in Indiana.

County GOP Chairman Charlie White said Carmel City Court Judge Paul Felix and David Najjar, county magistrate, also intend to run for the judgeship as Republicans.

Leerkamp and Felix have faced off before. In 2006, Felix lost the GOP primary for prosecutor to Leerkamp by 143 votes.

Re the dispute between Leerkamp and the County Council, which is essentially a separation of powers issue, see this ILB entry from Dec. 24, 2007.

Posted by Marcia Oddi on February 5, 2008 01:49 PM
Posted to Indiana Courts

Ind. Courts - Decision in: Wrongful death trial in Ball State student's 2003 shooting

Updating this ILB entry from Jan. 23th, Seth Slabaugh reports today in the Muncie Star-Press:

INDIANAPOLIS -- A former Ball State University police officer was found not liable Monday for the 2003 shooting death of a lost, unarmed, drunken student who allegedly charged at the officer. * * *

After a two-week trial, an eight-member [federal] jury found for ex-BSU officer Robert Duplain, the defendant in an excessive-force lawsuit brought by Tim McKinney, whose son Michael was fatally shot by Duplain in the backyard of 1325 W. North St.

Posted by Marcia Oddi on February 5, 2008 01:42 PM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Allen Circuit Judge Felts pursues re-election"

From today's Fort Wayne Journal Gazette:

With a brief news conference over the lunch hour inside the north entrance of the Allen County Courthouse, Circuit Judge Thomas J. Felts, a Republican, announced his plan to seek re-election.

A number of other Allen County judges and officials were on hand for Felts’ announcement Monday, including Allen County GOP Chairman Steve Shine.

If re-elected, it would be Felts’ second term on the bench. Felts was recently elected president of the Indiana Judges Association.

Posted by Marcia Oddi on February 5, 2008 01:39 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Diana and Christopher Williams v. Christy Kruszka (NFP) - "Christy Kruszka gave birth to Infant K. and executed a consent to adopt the next day. Diana and Christopher Williams, husband and wife, petitioned to adopt the child. They appeal the trial court’s decision to grant Kruszka’s subsequent petitions to withdraw her consent to adopt and to contest the adoption. We affirm."

In the Matter of B.M.G. and L.G., and John Goebel v. Lake Co. Office of Family & Children and Lake Co. CASA (NFP) - "Was the evidence sufficient to prove there is a reasonable probability that the conditions resulting in the children’s removal from Father’s care still exist or that continuation of the parent-child relationship poses a threat to the children’s well-being? We affirm."

NFP criminal opinions today (7):

In the Matter of K.W. v. State of Indiana (NFP) - "K.W. appeals from her adjudication as a juvenile delinquent. We affirm."

Robert Campbell v. State of Indiana (NFP)

Earl E. Wilson v. State of Indiana (NFP)

Charles B. Dillon v. State of Indiana (NFP)

Tami Briscoe-Beck v. State of Indiana (NFP)

Markus S. Singleton v. State of Indiana (NFP)

Edward Chandler v. State of Indiana (NFP)

Posted by Marcia Oddi on February 5, 2008 01:31 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides case involving UCC 405

In Auto-Owners Insurance Company v. Bank One, a 12-page, 3-2 opinion, Justice Sullivan writes:

Kenneth B. Wulf stole more than $500,000 from his employer, Auto-Owners Insurance Company, by depositing checks payable to Auto-Owners into a personal account he opened at Bank One in the name of “Auto-Owners, Kenneth B. Wulf.” Auto-Owners contends that Bank One violated § 405 of the Indiana Uniform Commercial Code by not exercising ordinary care when it opened Wulf’s account. However, we hold that § 405 applies to opening new accounts only in circumstances not present here. * * *

Shepard, C.J., and Rucker, J., concur.
Boehm, J., dissents in part with separate opinion in which Dickson, J., concurs. [The dissent begins] I agree with the majority that the statute of limitations bars much of Auto-Owners’s claim against Bank One. I also agree that the principal issues presented by Auto-Owners’s claim under the Uniform Commercial Code are (1) whether the bank failed to exercise ordinary care in ac-cepting Wulf’s checks, and (2) if so, the extent to which that failure contributed to Auto-Owners’s loss. I do not agree that Bank One is entitled to summary judgment because I believe both questions present issues of fact that are not resolvable on summary judgment.

Posted by Marcia Oddi on February 5, 2008 01:07 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Reports on bills of interest to the Judiciary that were discussed last week

Last Friday, Feb. 1st, the Indiana Judicial Center posted its fifth installment of very useful reports for 2008 on bills of interest to the Judiciary. Access them here. The report begins:

We have reached the halfway point of the session. This installment is a series of topical charts detailing the status of bills of interest to the Judiciary that were heard on third reading. If a bill was amended at any stage in the legislative process, it is designated with an “-A” at the relevant stage.

Posted by Marcia Oddi on February 5, 2008 09:30 AM
Posted to Indiana Courts

Monday, February 04, 2008

Ind. Law - Last Week in Review at the Indiana General Assembly

The Evansville Courier & Press' Bryan Corbin's review of the past week in the General Assembly, which appeared Sunday, is headlined "Legislators tackle session's tough agenda." The story reports:

With the 2008 session not quite half over, the Indiana House has passed one version of property tax relief legislation while the State Senate has passed another.

Now the House and Senate trade bills and consider each other's proposals as the Legislature's short session shifts into its second half.

Although scrutinizing Gov. Mitch Daniels' property tax relief plan has taken up the bulk of the Legislature's time, lawmakers have voted on other important bills. The deadline for final action by both chambers is March 14, when lawmakers adjourn for the year.

The story continues with "a sampling of what's occurred so far."

Posted by Marcia Oddi on February 4, 2008 04:45 PM
Posted to Indiana Law

Ind. Courts - A number of stories on judicial candidates

Here are some recent stories on candidates for the judiciary:

From the South Bend Tribune:

Former Cass County Prosecutor Scott Teter announced today that he is running for district judge.

Teter, 45, is seeking to succeed Cass County 4th Judicial District Court Judge Paul Deats, who plans to retire at the end of the year. Woops! That was Cass County MICHIGAN

From the Crawfordsville Journal Review: Peggy Quint Lohorn announces decision to seek re-election as Judge of the Montgomery Superior Court 2.

Also from the Journal Review: "S. Bryan Donaldson, a local attorney the last 19 years ... has announced his candidacy to run to become Judge of Montgomery County Superior Court I. His competition will be David Ault, who has been the Superior Court I Judge for the past 18 years and who is running for re-election."

From the Shelbyville News: "Judge Russell J. Sanders has announced that he will seek re-election as judge of Shelby Superior Court II. First elected in 1996, Sanders is completing his second full term this year."

In addition, Allen Circuit Court Judge Thomas Felts has announced for reelection, although the ILB has not seen a newspaper story containing the announcement.

Posted by Marcia Oddi on February 4, 2008 02:30 PM
Posted to Indiana Courts

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

Updating this ILB entry from Dec. 29, 2007, Debbie Lowe of the Carroll County Comet reports:

Carroll Circuit Court Judge Donald Currie pled not guilty at an initial hearing Dec. 26 after being arrested for public intoxication Dec. 23 in Boone County. A bench trial was scheduled for March at the initial hearing, but Currie then scheduled a plea agreement for Feb. 19. However, that date was moved up when Currie pled and was found guilty in Boone County Superior Court II by Judge Rebecca McClure Jan. 22.

According to the Lebanon Reporter, Currie was found guilty of a Class B misdemeanor and issued a 180-day suspended sentence with credit given for his day in the Boone County Jail. Currie was ordered to pay $450 legal fees and his drivers' license was restricted. [ILB - Here is the 1/25/08 story from the Lebanon Reporter.]

Currie's case could be investigated by the Indiana Judicial Qualifications Commission concerning judicial conduct violations. According to Meg Babcock, supervisor for the counsel to the commission, that process is completely separate from the court case and is not a matter of public record until the time formal charges are filed with the Indiana Supreme Court.

"There is a lot the commission can do short of filing charges," Babcock said.

She said there could be no investigation, suspension from office without pay and other remedies which include fines, removal from office or disbarment. She called removal from office the "ultimate sanction." Babcock said the Indiana Supreme Court would be the entity to decide upon the sanction if charges were filed. The commission would be making a recommendation to that court.

Babcock referred the Comet to two similar cases investigated by the commission in the past two years. In both cases, the judges stipulated to the facts of the cases and their "misconduct." Both were issued a "public reprimand" for their behavior.

See this ILB entry from Dec. 18, 2007, which discusses similar Indiana and Illinois incidents.

Posted by Marcia Oddi on February 4, 2008 01:42 PM
Posted to Indiana Courts

Ind. Decisions - Two Indiana opinions today from the 7th Circuit

In USA v. Beaver, Chris A. (SD Ind., Judge McKinney), a 22-page opinion involving concrete price-fixing, Judge Kanne writes:

A federal jury found Christopher Beaver guilty of participating in a price-fixing conspiracy, 15 U.S.C. § 1, and making false statements to a federal law enforcement agent who was investigating that conspiracy, 18 U.S.C. § 1001(a)(1). Beaver challenges his convictions on appeal, arguing that the government failed to prove at trial that a price-fixing conspiracy existed, that he joined the conspiracy, or that he made false statements. We affirm.

In USA v. Shaaban, Shaaban Hafiz Ahmad (SD Ind., Judge Tinder), a 5-page ruling on a Motion to Recall the Mandate which was originally issued 1/28/08 in typescript form, Judge Ripple (in chambers), concludes:

Mr. Shaaban does not request expressly the appointment of new counsel, but, throughout his motion, he expresses strong displeasure with present counsel. Moreover, counsel’s response does demonstrate that he both failed to communicate with Mr. Shaaban and already has formed the opinion that a petition for rehearing is unnecessary. Under these circumstances, to ensure the full protection of Mr. Shaaban’s right to counsel, defense counsel is relieved from his appointment to represent Mr. Shaaban in this case. New counsel for Mr. Shaaban will be appointed in a separate order. I express no view as to whether a petition for rehearing would be frivolous. Newly appointed counsel shall, within 30 days from the date of appointment, file either a petition for rehearing or a motion to withdraw on the ground that any such petition would be frivolous. If newly appointed counsel seeks withdrawal because he can discern no nonfrivolous issue to raise in a petition for rehearing, Mr. Shaaban shall have the opportunity to file a response pursuant to Seventh Circuit Rule 51(b). IT IS SO ORDERED.

Posted by Marcia Oddi on February 4, 2008 01:39 PM
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Jim Atterholt, et al v. Geneva Herbst, et al , a 14-page opinion, Judge Mathias writes:

Geneva Herbst, the personal representative of the Estate of Jeffrey A. Herbst (“the Estate”) brought an action seeking excess damages from the Indiana Patient’s Compensation Fund (“the Fund”). The Marion Superior Court granted partial summary judgment and final judgment in favor of the Estate. The Fund appeals and presents two issues for review, which we restate as: whether the trial court erred in granting partial summary judgment in favor of the Estate, and whether the trial court erred in excluding evidence proffered by the Fund. We affirm. * * *

Conclusion. Because the trial court properly concluded in its order granting partial summary judgment that the Fund could not argue that the Healthcare Providers’ malpractice cost Jeffrey only a small chance of survival, the trial court also properly excluded the evidence the Fund sought to admit regarding Jeffrey’s chances of survival. We therefore affirm both the trial court’s grant of partial summary judgment and the trial court’s final judgment.

NFP civil opinions today (1):

Paternity of L.B., Shellie Shaw v. Tony Baumgardner (NFP) - "Based on the foregoing, we conclude that the trial court committed harmless error by failing to explain its reasons for the deviation from the Parenting Time Guidelines in its written Order. Furthermore, we find that the trial court’s visitation schedule conforms with the Guidelines."

NFP criminal opinions today (5):

In State of Indiana v. Mark K. Reed (NFP), a 2-1 opinion, Sr. Judge Robertson writes:

The issue presented for our review is: whether the trial court correctly concluded that the police officer mistakenly believed that Reed had committed an infraction which served as the probable cause or reasonable suspicion for the traffic stop leading to the discovery of Reed’s driver’s license status. * * *

There was no probable cause or reasonable suspicion for the traffic stop. The trial court did not err by granting Reed’s motion to suppress.

DARDEN, J., concurs.
MAY, J., dissenting with separate opinion. [which begins] Because I believe the trial court erred when it granted Reed’s motion to dismiss, I would reverse and remand for trial. Therefore, I respectfully dissent.

Ralph Young v. State of Indiana (NFP)

Gregory L. Henson v. State of Indiana (NFP)

Fabrian Moore v. State of Indiana (NFP)

Gaberella Menifee v. State of Indiana (NFP)

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

Posted by Marcia Oddi on February 4, 2008 01:17 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending February 1, 2008

Here is the Indiana Supreme Court's transfer list for the week ending February 1, 2008.

One case, Keller v. State, was granted transfer Friday, 2/1/08 and remanded to trial court. Another case, Maymon v. State, which was granted transfer 1/18/08 (see ILB entry here) was listed again Friday, this time as a "corrected entry", but no indication was given as to the nature of the correction.

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 February 4, 2008 09:26 AM
Posted to Indiana Transfer Lists

Wednesday, January 30, 2008

About the ILB - Announcement

Announcement: The ILB will be on hiatus, temporarily. Watch for our return!

Posted by Marcia Oddi on January 30, 2008 08:33 AM
Posted to About the Indiana Law Blog

Ind. Courts - Indiana courthouses in the news

Courthouse Preservation. A press release from the office of Senator James Merritt announces: "Senate passes courthouse preservation legislation." Some quotes:

When members of the Farmland Ladies Bridge Club announced a bold plan to save the historic Randolph County Courthouse from demolition several years ago they created a media sensation – and inspired legislation to protect all Indiana courthouses which was unanimously passed today by the Indiana Senate.

Senate Bill 176, authored by Sen. James Merritt Jr., (R-Indianapolis), would create a 12-member commission which would investigate the need for preservation, restoration and maintenance of historic courthouses as well as assist county officials with such projects. According to Merritt, the ladies’ fundraising project – a calendar in which they posed nude with strategically placed replicas of the courthouse – led him to author SB 176. * * *

“In recent years, we have seen an increase in interest to tear down courthouses across Indiana,” said Wayne Goodman, Director of the Eastern Regional Office of HLFI. “This will be a great service for local government.”

According to Goodman, the commission will ensure county officials are adequately prepared for renovation and preservation projects before final plans are developed and work begins. “Renovations to the Fayette County Courthouse in Connersville were underway when some long-forgotten murals were discovered. We have been working with local government to raise funds to preserve them. It would have been nice to know they were there before work began,” he said.

The bill now moves to the House of Representatives for consideration.

See also this Jan. 15th ILB entry on SB 176.

Grant County Courthouse. The Chronicle-Tribune reports today, in a story by Maribeth Holtz:

Renovations to the courthouse cannot wait, Commissioner Mark Bardsley said, and so the commissioners are considering using money from another fund to make improvements to the historic building soon.

Commissioners discussed the courthouse Tuesday at their regular weekly meeting. Jeremy Diller said that cumulative capital development funds can be used for renovations on items such as the building facade, roof, elevator and boiler. CCD funds are revenues set aside for the care and upkeep of capital equipment.

See earlier ILB Grant County Courthouse stories here.

Morgan County Courthouse. "Courthouse roof, other properties heavily damaged by winds" is the headline to a story this morning by Keith Rhoades and Ronald Hawkins in the Martinsville Reporter-Times. Some quotes:

Strong winds and hail ripped through Martinsville at about 7:10 p.m. Tuesday damaging many buildings including blowing the roof off the north side of the Morgan County Courthouse.

Trees were down throughout areas of Morgan County and power outages were widespread.

Twisted and torn metal and other pieces of the roof lay on the north courthouse lawn. At least one tree on the courthouse was blown down as well. Crews were combing the building to determine other damage.

The lack of lights caused by the power outage on the east side of Main Street limited the ability to determine what and how much damage there was along the Public Square. Drivers circled the Square, trying to see the damage.

The courthouse will be closed Wednesday.

Posted by Marcia Oddi on January 30, 2008 08:30 AM
Posted to Indiana Courts

Ind. Decisions - "Court rejects Boney's appeal"

Reporting on yesterday's Court of Appeals decision in the case of Charles D. Boney v. State of Indiana [see ILB summary here - 2nd case], Harold J. Adams of the Louisville Courier Journal writes in a comprehensive story that begins:

The Indiana Court of Appeals ruled yesterday that the conviction of Charles Boney for his part in helping former Indiana State Trooper David Camm kill his wife and two children should stand.

A three-judge panel denied Boney's appeal in a unanimous 30-page opinion.

Floyd County Prosecutor Keith Henderson said the decision bodes well for the Indiana Supreme Court rejecting Camm's pending appeal.

Boney was convicted in Floyd Circuit Court in 2006 of three counts of murder, one count of conspiracy to commit murder and of being a habitual offender. Judge J. Terrence Cody sentenced him to 225 years in prison.

Posted by Marcia Oddi on January 30, 2008 08:23 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Switzerland County might get own circuit court"

Justin Helfrich reports in the Madison Courier:

A bill advancing through the state legislature could give Switzerland County its own circuit court. If House Bill 1096 becomes law, the 91st judicial circuit would be created in Switzerland County, eliminating the joint circuit court now shared by Jefferson and Switzerland counties.

Jefferson Circuit Judge Ted Todd, who currently serves the Jefferson-Switzerland circuit, said the move is needed.

"The Circuit Court in Jefferson County is tremendously busy. It's doing the work of about one and two-thirds judges right now," he said. "That doesn't give me time to take care of Jefferson County as I would like, and it doesn't give me time to take care of Switzerland County as I would like."

Todd said he's optimistic that the bill will pass.

Switzerland and Jefferson counties also share Prosecutor Chad Lewis. Lewis said he also supports the bill.

The bill recently passed unanimously in the House Judiciary Committee and the House Ways and Means Committee.

Lewis said the bill most likely pass both houses and become law. If House Bill 1096 passes, the Switzerland superior court, which shares a judge with Ohio County, will cease to exist in its present form.

Posted by Marcia Oddi on January 30, 2008 08:19 AM
Posted to Indiana Courts

Ind. Courts - "Jarrette Seeks Sixth Term As Kosciusko Superior Court II Judge"

From the Warsaw Times-Union:

James C. Jarrette is running for a sixth term as Superior Court II judge in the Republican May 6 primary.

Jarrette, 60, has served as Superior Court II judge since Jan. 1, 1997.

He served as a Kosciusko County Court judge from Sept. 4, 1979, to Dec. 31, 1996.

Posted by Marcia Oddi on January 30, 2008 07:59 AM
Posted to Indiana Courts

Tuesday, January 29, 2008

Courts - More on: Montana Supreme Court too slow in issuing opinions; Ohio just right

Then there is Texas. Updating this ILB entry from yesterday, Janet Elliot of the San Antonio Express-News also had a Sunday story, headlined "Cases piling up before justices." Some quotes from the long story:

AUSTIN — At a time when the Texas Supreme Court's case backlog has reached record levels, Justice Paul Green was spending Friday driving to Corpus Christi to speak to a group of appeals lawyers.

"It's 40 (degrees) and raining and I'm driving four hours to Corpus Christi," Green said from his cell phone. "Yes, I've got stuff to do at the office, but some of us like to do this."

Green, who wrote the fewest opinions — four — of the high court's nine justices during the 2007 fiscal year, said he thinks it's important to get out of the office and talk about the court's work.

"If all of a sudden I said I'll just stay in my chambers and work on opinions, I don't think people would like that," Green said, adding that he has a "bunch of cases" that are ready to be issued.

Jim Jordan, a Democrat who is challenging Republican Chief Justice Wallace Jefferson, has a different opinion.

He said Green needs to take care of the court's business before he travels to "schmooze" with lawyers. When parties in a legal dispute get to the Supreme Court, they already have been through an expensive and time-consuming trial and appeals process, said Jordan, a Dallas County trial judge. * * *

At the end of 2007, the court left more cases pending than ever before. The court had heard arguments but not issued rulings in 111 cases, including 36 that were more than a year old and 13 others more than 2 years old.

And what about Indiana? The ILB recalls that the school book fees decision, Frank Nagy, et al. v. Evansville-Vanderburgh School Corporation, see ILB entry here, was argued 11/23/04 and an opinion was issued 3/30/06. Nagy may be an outlier. Or others may have lengthier examples. Figures on all cases may exist, already compiled, in the Court's online reports. Or they could be readily derived using the oral argument dates available here.

Posted by Marcia Oddi on January 29, 2008 02:02 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Bank of America v. Kou Chin Ping, Waterwood of Carmel Homeowners Association, Inc., Bank One, N.A. f/k/a Bank One of Indiana, N.A., a 12-page decision, Judge Najam writes:

Bank of America, N.A. (“Bank of America”) appeals the trial court’s denial of its motion for summary judgment and Order on Trial (“Order”) following a bench trial on Bank of America’s claims against Bank One, N.A., n/k/a JPMorgan Chase Bank N.A. (“Bank One”). Bank of America raises two issues for our review,1 which we restate as follows: 1. Whether Bank of America was entitled as a matter of law to a release of Bank One’s mortgage after that mortgage, which secured a revolving line of credit, had been paid in full. 2. Whether Bank of America was entitled to relief under the doctrine of equitable subrogation. We affirm. * * *

Specifically, Ping withdrew, and Bank One advanced, funds against the line of credit after Bank of America had paid the account in full. Thus, merely to pay off the line of credit was insufficient in itself to terminate the Credit Agreement and trigger operation of Indiana Code Section 32-28-1-1. * * *

Here, Bank of America failed to take any affirmative steps to terminate the Bank One Mortgage after Bank of America had paid in full the line of credit. And, as a result, Bank One held open Ping’s line of credit, and Bank One continued to advance Ping funds from that account. Bank of America’s argument would result in an inequitable subrogation. Indeed, Bank One did not enjoy a windfall but advanced additional funds under the line of credit and acted properly under its Credit Agreement and mortgage. Given the plain meaning of the Credit Agreement and the mortgage that secured it, it was incumbent on Bank of America to secure release of the Bank One Mortgage as a condition of its new loan to Ping. That Bank of America failed to do so should not be allowed to prejudice Bank One. On these facts, Bank of America is not entitled to invoke the doctrine of equitable subrogation.

In Charles D. Boney v. State of Indiana , a 30-page opinion, Cheif Judge Baker writes:

Appellant-defendant Charles Boney appeals his convictions for three counts of Murder, a felony, one count of Conspiracy to Commit Murder, a class A felony, and the finding that he was a habitual offender. Specifically, Boney argues that his convictions must be reversed because: (1) the trial court erred in permitting the State to exercise a peremptory challenge regarding a prospective juror who was African American; (2) certain pretrial statements that Boney gave to police officers were improperly admitted into evidence; (3) the trial court abused its discretion in denying a motion for a mistrial based on comments made by two of the State’s witnesses regarding Boney’s previous incarceration; (4) the trial court erred in refusing to give his proffered instruction on accomplice liability; and (5) the trial court should have granted his motion to correct error based on juror misconduct. Finding no reversible error, we affirm the judgment of the trial court.

NFP civil opinions today (3):

In re the Marriage of: Sandra J. Byrd and Charles D. Pierce (NFP) - "The trial court’s decisions on the admission of evidence did not deny Sandra substantial justice. The evidence supports the findings and the findings support the judgment of the trial court. The trial court did not disregard relevant statutes, nor did the trial court abuse its discretion in the valuation or distribution of assets. Finally, the trial court did not abuse is discretion by disregarding claimed tax consequences. Affirmed."

William M. Felsher v. University of Evansville, University of Evansville Press and Dr. George C. Klinger (NFP) - "Felsher did not meet his burden of providing an adequate record on appeal nor did he meet his burden of establishing that summary judgment was improperly granted. We affirm."

In In the Matter of the Paternity of K.I., by Grandmother and Next Friend, Juanita Ivers v. Jeremy Hensley (NFP), an 8-page opinion, Judge Bailey writes:

The Crawford County Circuit Court modified custody of K.I. from Juanita Ivers (“Grandmother”) to Jeremy Hensley (“Father”) and awarded Grandmother visitation. Grandmother appeals and Father cross-appeals. We reverse and remand.

Issues. Grandmother presents two issues for review: I. Whether the trial court applied an improper standard for custody modification from a third party to a natural parent; and II. Whether the trial court abused its discretion because the modification order is unsupported by sufficient evidence. * * *

III. Grandparent Visitation.

Because it may arise on remand, we briefly address the issue of visitation. Father requested that Grandmother be awarded alternate weekends, one week of summer vacation, and a portion of spring break. However, the trial court awarded Grandmother “visitation pursuant to the non-custodial parent’s visitation provided under the Indiana Parenting Time Guidelines.” (App. 12.) Father argues that the time ordered is overly expansive as he also permits K.I.’s Mother (via an informal agreement) to spend time with K.I. Implicitly, he contends that K.I.’s visitation with Grandmother should be at his discretion.

The record clearly discloses that Grandmother was K.I.’s long-term guardian and not her adoptive parent. Nevertheless, Grandmother clearly falls within the purview of the Grandparent Visitation statutes, Indiana Code Section 31-17-5-1 et seq., as she is the grandparent of a child born out of wedlock. Indiana Code Section 31-14-14-3 provides in relevant part: “An order granting or denying visitation rights to a noncustodial parent does not affect visitation rights granted to a grandparent[.]”

Grandmother also contends that she is a “De facto custodian” as defined in Indiana Code Section 31-9-2-35.5. The record discloses that Grandmother was a primary caregiver with whom K.I. resided for more than one year. Thus, the statutory critera are satisfied, and Grandmother may also be awarded visitation time as a de facto custodian. See Nunn v. Nunn, 791 N.E.2d 779, 785 (Ind. Ct. App. 2003) (finding that visitation with a third party may be in the child’s best interests where the third party acted as a custodian of the child).

On remand, should Father be awarded custody of K.I. and the parties do not agree upon Grandmother’s visitation, we instruct the trial court to determine if Grandmother should be granted grandparent or de facto custodian visitation regardless of Mother’s parenting time with K.I., if any.

NFP criminal opinions today (4):

Bradley Shopoff v. State of Indiana (NFP)

Michael T. Foley v. State of Indiana (NFP)

Anthony L. Lofton v. State of Indiana (NFP)

Felipe Romero v. State of Indiana (NFP)

Posted by Marcia Oddi on January 29, 2008 01:35 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides case on statute of limitations for negligence claims against an insurance agent

In Idan (John) Filip and Valaria Filip v. Carrie Block and 1st Choice Insurance Agency, a 13-page, 4-1 opinion, Justice Boehm writes:

Indiana Trial Rule 56(C) requires parties to designate the evidence in support of or opposition to a motion for summary judgment. We hold that this designation may be accomplished in any one of several places but must be done consistently. A court may resolve any inconsistencies in designations against the designating party. We also hold that the statute of limitations for negligence claims against an insurance agent for failure to obtain a desired form of coverage begins to run at the time the failure was first discoverable through ordinary diligence. * * *

On December 9, 2005, the trial court struck the untimely designation of evidence, and limited the Filips’ evidence in opposition to summary judgment to the lines and paragraphs specified in the defendants’ memorandum. The same day, the trial court granted summary judgment in favor of the defendants, holding that the two-year statute of limitations for negligence started on the date of initial coverage in 1999. The Filips appealed. The Court of Appeals reversed on two grounds. First, the Court of Appeals held that the Filips could rely on the pages identified in the defendants’ motion, and were not limited to the lines and paragraphs specified in the memorandum. Filip v. Block, 858 N.E.2d 143, 150 (Ind. Ct. App. 2006). Second, the Court of Appeals held that the statute of limitations did not bar the Filips’ complaint because the statutory period for negligence against an insurance agent starts to run when the claim is denied. Id. at 152. We granted transfer. 869 N.E.2d 455 (Ind. 2007). * * *

Conclusion. The trial court’s grant of summary judgment is affirmed.

Shepard, C.J., and Sullivan and Rucker, JJ., concur.
Dickson, J., concurs in Part I but dissents as to Part II, believing that genuine issues of material fact preclude summary judgment.

Oral arguments were held in this case on 5/30/07.

Posted by Marcia Oddi on January 29, 2008 11:38 AM
Posted to Ind. Sup.Ct. Decisions

Court - "Illegal Globally, Bail for Profit Remains Pillar of U.S. Justice"

Adam Liptak of the NY Times has a long, front-page article today on the American bail system, part of a series called "American Exception" that "will examine commonplace aspects of the American justice system that are actually unique in the world." Some quotes:

[P]osting bail for people accused of crimes in exchange for a fee, is all but unknown in the rest of the world. In England, Canada and other countries, agreeing to pay a defendant’s bond in exchange for money is a crime akin to witness tampering or bribing a juror — a form of obstruction of justice. * * *

“It’s a very American invention,” John Goldkamp, a professor of criminal justice at Temple University, said of the commercial bail bond system. “It’s really the only place in the criminal justice system where a liberty decision is governed by a profit-making businessman who will or will not take your business.”

Although the system is remarkably effective at what it does, four states — Illinois, Kentucky, Oregon and Wisconsin — have abolished commercial bail bonds, relying instead on systems that require deposits to courts instead of payments to private businesses, or that simply trust defendants to return for trial. * * *

Here as in many other areas of the law, the United States goes it alone. American law is, by international standards, a series of innovations and exceptions. From the central role played by juries in civil cases to the election of judges to punitive damages to the disproportionate number of people in prison, the United States has charted a distinctive and idiosyncratic legal path.

Bail is meant to make sure defendants show up for trial. It has ancient roots in English common law, which relied on sworn promises and on pledges of land or property from the defendants or their relatives to make sure they did not flee.

America’s open frontier and entrepreneurial spirit injected an innovation into the process: by the early 1800s, private businesses were allowed to post bail in exchange for payments from the defendants and the promise that they would hunt down the defendants and return them if they failed to appear.

Commercial bail bond companies dominate the pretrial release systems of only two nations, the United States and the Philippines.

The flaw in the system most often cited by critics is that defendants who have not been convicted of a crime and who turn up for every court appearance are nonetheless required to pay a nonrefundable fee to a private business, assuming they do not want to remain in jail. * * *

According to the Justice Department and academic studies, the clients of commercial bail bond agencies are more likely to appear for court in the first place and more likely to be captured if they flee than those released under other forms of supervision.

That may be because bail bond companies have financial incentives and choose their clients carefully. They also have more power. In many states, bond enforcement agents, sometimes called bounty hunters, may break into homes of defendants without a warrant, temporarily imprison them and move them across state lines without entering into the extradition process.

Still, critics say, efficiency and business considerations should not trump the evenhanded application of justice.

The experiences in states that have abolished commercial bail bonds, prosecutors say, have been mixed.

“The bail bond system is rife with corruption,” said Joshua Marquis, the district attorney in Clatsop County, Ore. Since bond companies do not compete on price, they have every incentive to collude with lawyers, the police, jail officials and even judges to make sure that bail is high and that attractive clients are funneled to them.

Mr. Kreins, the industry spokesman, acknowledged scandals in Illinois, where “basically all the agents were in collusion with the judges,” and in Louisiana, where sheriffs were also in the mix.

Posted by Marcia Oddi on January 29, 2008 10:36 AM
Posted to Courts in general

Legislative Benefits - More on: "Insulted" legislators; disrespected citizens

Updating this ILB entry from January 27th, several papers today weigh in with editorials about the Senate committee's reaction to testimony on SB 165.

From the Fort Wayne Journal Gazette, this editorial titled "Waiting for Scandal" :

Pity the poor Indiana lawmakers whose feelings are so sensitive as to be hurt by the mere suggestion of conflicts of interest. Imagine how offended they will be when inevitable scandal rocks the Statehouse and voters point to the next example of broken public trust.

Sen. Marvin Riegsecker, R-Goshen, might not know about an Indiana lobbyist scandal that rocked the General Assembly and sent two lawmakers to prison. He might have missed a later episode where a House Ways and Means Committee chairman was entangled in an ugly incident involving consulting fees and a riverboat contractor. Surely, he missed the lobbyist scandal in Alaska, where legislators on the take from an oil company jokingly claimed membership in the “Corrupt Bastards Club.”

How else to explain why Riegsecker, chairman of the Senate Public Policy Committee, refused to even call Senate Bill 165 for a vote? The legislation would require a reasonable one-year cooling-off period before former lawmakers are allowed to register as lobbyists before the General Assembly.

But testimony on behalf of the bill angered the chairman. Riegsecker said he and other committee members were offended by comments that “we’re taking money under the table.”

Sen. Vi Simpson, D-Bloomington, agreed.

“The testimony was so nasty and mean and personal that the committee members were furious,” she told the Indianapolis Star. “It was a very unpleasant confrontation. That’s not how you get legislation passed around here.”

Maybe not. It seems to be more effective to hire a former lawmaker, whose familiarity with the process and the legislators gives them advantage over members of the general public calling for higher ethical standards. Most other states have already enacted legislation to restrict lobbying by former lawmakers.

Fortunately, there are some legislators with thicker skins and a more realistic view of the public’s perception of elected officials. Reps. Phyllis Pond of New Haven and Win Moses of Fort Wayne were co-authors of House Bill 1063, which would restrict legislators from returning as lobbyists for two years after leaving office. Unfortunately, their bill died in committee. [ILB note: Rep. Day authored the House bill, it was assigned to Rules and Legislative Procedures (which the ILB would consider a graveyard for this type of legislation) by the Speaker. The Senate bill was authored by Senator Miller, Senators Charbonneau and Lubbers were also on the bill.]

Senate President Pro Tem David Long, R-Fort Wayne, also seems to get it.

“I do think we’re going to have to take a hard look at how Indiana compares to other states and ultimately address particularly the issue of how soon you can go out into the hall and lobby,” he told the Star.

There’s no reason the tighter restrictions couldn’t be approved immediately – before easily offended lawmakers have a real reason to be offended by legislative misbehavior.

From the Indianapolis Star, this editorial titled "'Offended' lawmakers defend insulting system":

A modest measure to restrict how fast state legislators can move into the lobbying business has been killed because legislators claim they're offended at the insinuation they have anything but the purest of intentions.

Very principled of them. No law should be considered that might implicitly impugn the motives of those covered. Let's extend the logic.

Certification of car insurance before receiving license plates? Why, who would be so negligent as to drive around without insurance?

Pollution regulation? Are we implying that any Hoosier industrialist, farmer or motorist would fail to protect the air and water?

Campaign finance reporting? Whose business is it where a candidate's money comes from? Surely he's good people.

You catch our drift. When Sen. Marvin Riegsecker, R-Goshen, deep-sixed a bill to make legislators wait a year after leaving office before becoming lobbyists, he huffed and puffed about offended dignity, with an effect as weak as the lobbying laws themselves.

Riegsecker, chairman of the Public Policy Committee, said the public's enthusiastic support for Indianapolis Republican Patricia Miller's bill "angered my fellow senators" -- and passage was unlikely anyway.

The latter statement is believable enough. Efforts to make the Indiana General Assembly less cozy for special-interest lobbyists, more than 30 of whom are former legislators, rarely find much traction. But the notion put forth by legislators and legislators-turned-lobbyists that self-interest and privileged access are just cynical myths is a true insult -- to the taxpayer's intelligence.

In case our indignant elected officials and former elected officials have not noticed, more than half the states have enacted one- or two-year cooling-off periods between jumps from legislator to lobbyist.
The executive branch of this state government, at the behest of Gov. Mitch Daniels, bars former employees from lobbying former colleagues for a year after entering the private sector. Senate President Pro Tempore David Long acknowledges the legislature is going to have to face the issue itself some day. But that day is not here.

Posted by Marcia Oddi on January 29, 2008 07:49 AM
Posted to Legislative Benefits

Monday, January 28, 2008

Courts - More on "Ohio Court Debates Rights to Body Parts"

Updating this ILB entry from Jan. 23 about the case recently argued before the Ohio Supreme Court, Robert Barnes of the Washington Post reports today in a story headlined "Huge Lawsuit Could Change Handling of the Dead." Some quotes:

The Albrechts' discovery that they had buried their son without his brain has led to a federal class-action suit that could cost local governments millions of dollars, force changes in the way medical examiners perform their jobs and establish new rights for the next of kin.

The suit argues that the next of kin, not the state, should make decisions on how to dispose of organs no longer needed for testing, and that denial of such a right violates the Constitution's promise of due process. The federal lawsuit names 87 of Ohio's 88 counties; the other, Hamilton County, which encompasses Cincinnati, has already settled with families for $6 million.

Beyond that, the case has presented two separate courts with existential questions about death and burial rites, religion and grief, and the interests that loved ones have in the remains of the departed. * * *

U.S. District Judge Susan J. Dlott said last spring that before she could rule on whether the class-action lawsuit could go forward, she wanted the Ohio Supreme Court to determine whether the next of kin have a "protected right" under Ohio law to "the decedent's tissues, organs, blood or other body parts that have been removed and retained" by a coroner.

The issue moved last week to the state court's seven justices, who seemed equally skeptical of arguments on both sides. * * *

John H. Metz, who represents the Albrechts, said that families have no unrealistic expectation that every tissue sample or blood specimen will be returned to the body, but that something such as a brain is different.

The coroner had no more right to dispose of that, Metz argues, than to keep Christopher's "heart, head, leg or any other body part."

It is because of Metz, who acknowledges he has been called the "dead bodies lawyer," that Ohio is in the forefront of the issue. In 1991, he successfully represented a woman who discovered that the coroner had harvested her husband's corneas for transplantation without her permission.

The U.S. Court of Appeals for the 6th Circuit held that the woman had a "legitimate claim of entitlement" to her deceased husband's body, protected by the due process clause of the 14th Amendment.

After the successful suit against Hamilton County involving brains, the Ohio General Assembly stepped in.

It passed a law in 2006 stating that "retained tissues, organs, blood, other bodily fluids, gases, or any other specimens from an autopsy are medical waste," to be disposed of in accordance with state and federal law.

That law settles the issue, Landes argued, and shows that the current suit is not about preventing future wrongdoing but "collecting money for people who don't even know" the past practices until contacted by lawyers.

If settlements followed the pattern from Hamilton County, he said, the cost to local governments could be about $90 million.

Metz said that complaining of the possible cost is always the defense of the wrongdoer.

Posted by Marcia Oddi on January 28, 2008 02:37 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 4 today (and 12 NFP)

For publication opinions today (4):

In In the Matter of the Unsupervised Estate of Carl Deiwert; Wallace Richard Deiwert v. Judith McKinney , a 6-page opinion, Judge Bradford writes:

Appellant/Cross-Appellee Wallace Richard Deiwert (“Dick”) appeals from the probate court’s order concluding that he failed to timely exercise an option to purchase certain real estate from the estate of his father Carl Deiwert (“Carl”). Appellee/Cross-Appellant Judith McKinney contends that this court does not properly have jurisdiction over this interlocutory appeal. We affirm. * * *

Because the ultimate effect of the probate court’s ruling was to deliver possession of the McKinney Tracts to McKinney, Dick had a right to appeal that ruling under Rule 14(A)(4), and we therefore decline McKinney’s request to dismiss this appeal. * * *

The probate court properly concluded that Dick failed to properly preserve his right of first refusal as provided for in Carl’s will.

In Indiana Department of Transportation and State of Indiana v. Robert Howard and Lynn Howard, et al., a 12-page opinion on a petition for rehearing, Judge Robb writes:

We grant the petition for rehearing, vacate our earlier decision, and consider the merits of the issue raised by INDOT’s appeal: whether the trial court properly set aside its prior entry of summary judgment. Concluding that the trial court did not abuse its discretion in granting the motions to correct error because a genuine issue of material fact kept INDOT from being entitled to summary judgment, we affirm.

In Tornatta Investments, LLC v. Indiana Department of Transportation , an 8-page opinion, Judge Mathias writes:

Tornatta Investments (“Tornatta”) filed a complaint for declaratory judgment in Warrick Superior Court against the Indiana Department of Transportation (“INDOT”) alleging that INDOT’s purchase of an adjacent property caused a substantial diminution in value of Tornatta’s real estate, which resulted in a taking without just compensation. The trial court concluded that INDOT’s actions did not constitute a taking and entered judgment in favor of INDOT. Tornatta appeals and argues INDOT’s purchase of the adjacent real estate interfered with Tornatta’s right to assemblage, and the interference of such right resulted in a compensable taking. We affirm.

In Samuel Lesjak v. New England Financial , a 10-page opinion, Chief Judge Baker writes:

Appellant-defendant Samuel Lesjak appeals the trial court’s order requiring that he arbitrate the claim filed against him by appellee-plaintiff New England Financial in a forum other than the National Association of Securities Dealers (NASD). We find that the substance of this appeal is moot, inasmuch as New England Financial began arbitration proceedings with the NASD during the pendency of this appeal, notwithstanding the fact that it had argued and represented to the trial court for months that the claim was not arbitrable by the NASD. We also find, however, that Lesjak has established that he is entitled to appellate attorney fees and costs for New England Financial’s bad faith during this appeal. Thus, we dismiss the appeal as moot and remand to the trial court with instructions to consider whether Lesjak is entitled to attorney fees and costs for the litigation that occurred prior to this appeal and to calculate the amount of appellate attorney fees and costs to which Lesjak is entitled.

NFP civil opinions today (2):

Paul W. Grim v. Golden Rule Insurance Company and Gary Fry (NFP) - "In this appeal, Grim argues that the trial court erred in granting summary judgment for Golden Rule because the designated evidence established that Grim was entitled to seek damages for breach of Golden Rule’s implied covenant of good faith and fair dealing. Grim also asserts that the trial court erred in concluding that an intervening bankruptcy necessarily terminated his action against Golden Rule for breach of contract. Concluding that the trial court properly entered summary judgment for Golden Rule, we affirm."

Jack & Pam Miller v. Eugene Wedekind (NFP) is a 2-1 opinion. "The Cass Circuit Court entered judgment in favor of Eugene Wedekind d/b/a Associated Builders (“Wedekind”) in a breach of contract action brought against him by Jack Miller (“Jack”) and Pam Miller (“Pam”) (collectively “the Millers”). The Millers appeal and claim that the trial court’s judgment erroneous. Specifically, the Millers argue that the evidence supports their claim that Wedekind failed to construct a pole building in a workmanlike manner. We reverse and remand for proceedings consistent with this opinion."

From the dissent: "We review findings of fact for clear error. LinkAmerica Corp. v. Albert, 857 N.E.2d 961, 965 (Ind. 2006). Because the trial court’s findings and conclusions are not clearly erroneous, see Ind. Trial Rule 52(A), I must dissent."

NFP criminal opinions today (10):

Darrick Miller v. State of Indiana (NFP)

Christine Barkley v. State of Indiana (NFP)

Shane Locker v. State of Indiana (NFP)

Freeman Irby v. State of Indiana (NFP)

Jamaar Bess v. State of Indiana (NFP)

Steven E. Briscoe & Roger F. Briscoe v. State of Indiana (NFP)

Bradley J. Scott v. State of Indiana (NFP)

Thomas Smith v. State of Indiana (NFP)

Robin L. Schlusser v. State of Indiana (NFP)

Fred Garner v. State of Indiana (NFP)

Posted by Marcia Oddi on January 28, 2008 02:02 PM
Posted to Ind. App.Ct. Decisions

Courts - Montana Supreme Court too slow in issuing opinions; Ohio just right

Supreme Court cases reportedly pile up in Montana. Yesterday the Billings Gazette had three stories on the problem. Some quotes from this lengthy story by Mike Dennison:

HELENA - In Butte, a dispute over building a road to the Our Lady of the Rockies statue has been before the Montana Supreme Court more than two-and-a-half years, with no decision in sight.

In Billings, Peggy Jackson has been waiting more than two years for the high court to rule on the terms of her divorce, which her husband appealed in October 2005.

"I am 65 years old and would like to get my life in order for my kids," she wrote in a letter to the court clerk in December. "Would you please check and see if you can give me any idea when the court will decide my case?"

And in Kalispell, landowner Harry Blazer has been trying for months to sell a piece of property, but he cannot because of a pending court appeal affecting access to the land. The appeal, filed with the Montana Supreme Court by his neighbors, has been before the court since September 2005. * * *

Justices on the court say they're not happy about the long wait and realize it creates problems for those awaiting a decision. But they also say there's not much they can do about it.

"I would stack this court's work ethic against any court that has ever existed" in Montana, said Chief Justice Karla Gray. "I don't think we can do better by any means that any of us haven't thought of - and we have tried."

Gray also said lengthy cases are the exception rather than the rule, noting that the vast majority of decisions are processed in less than a year. About half the decisions also come in under a six-month goal the court sets in its own operating rules.

Nonetheless, attorneys who spoke to the Gazette State Bureau said the wait on some cases is unusually long, and that long waits seem more frequent than they used to be.

Most attorneys declined to speak for the record, saying they don't want their comments to affect cases they have pending before the Supreme Court.

Attorney General Mike McGrath, however, is not shy about giving his opinion on the delays.

McGrath, who is running to succeed Gray as chief justice of the Supreme Court, said the current situation is "unacceptable" and that streamlining the process would be a top priority for him as chief justice.

"There frankly is no excuse for keeping a case up there for more than a year," McGrath said. "It's not fair to the litigants, it's not fair to the public." * * *

Supreme Court justices say reasons for delays are many and that most are beyond their control.

For starters, Montana's Supreme Court has no control over the number of cases it considers, they point out. It must accept and consider any appeal, and Montana is one of only 11 states without an intermediate court of appeals, so appeals from state District Court go directly to the high court.

The court caseload increased dramatically from 1995 to 2004, rising from 580 to a peak of 882. Since then, the load has decreased to 676 cases in 2007, which is only slightly more than the average caseload of the early 1990s.

The Montanna Court has seven justices.

Meanwhile the "Ohio Supreme Court is writing opinions quicker," according to this story from the Cleveland Plain Dealier. Some quotes:

Ohio Supreme Court justices found their stride again in 2007, churning out written opinions on average in five months, a Plain Dealer analysis found.

That was a significant improvement over 2006, when the court slowed to a molasseslike pace, yet Chief Justice Thomas Moyer said he still expects better -- especially from some justices.

The new analysis follows a similar one last year in which The Plain Dealer found that the amount of time it took to turn out majority decisions had increased from an average of five months per case in 2004 to seven months in 2006. One case drew particular attention to the court's 2006 performance: It took nearly a year to release a ruling that freed two Portage County men who had been imprisoned 16 years for a rape and murder they said they did not commit.

Moyer points out that his court is not bound by any time standards for kicking out opinions after a case has been orally argued. But after taking longer each year since 2004 to issue rulings, the high court was earning a reputation for delaying justice.

"That is still a matter in which all of the justices are sensitive," said Moyer, who hopes to further improve the court's efficiency. "We have parties in cases waiting for our decisions. So the time it takes us to announce an opinion is a concern."

In 2007, the justices wrote 131 opinions from cases orally argued and took on average 151 days to return a decision, improving on its 2006 average of 214 days and returning to its 2004 pace of 157. * * *

Just a few state supreme courts around the country have time standards, which range from six weeks to a year. * * *

[Justice Paul Pfeifer] said he thinks last year's Plain Dealer analysis embarrassed the court into rethinking its procedures for releasing opinions.

After that story, the court shortened the period at the end of the process, when opinions are proofread and citations double-checked, from about six weeks to under two weeks.

"All of our numbers will drop" in 2008, Moyer predicted, because of that procedural change.

[Thanks to Howard Bashman's How Appealing for the links.]

Posted by Marcia Oddi on January 28, 2008 11:10 AM
Posted to Courts in general

Ind. Gov't. - Is a public employee's history of internet usage subject to public records access?

Should a public employee's computer browser's list of previous internet sites visited be considered a "public record", required to be disclosed via a public records request?

That is the question addressed in this informal opinion dated Jan. 4, 2008, answering a question posed to the Indiana Public Access Counselor last July.

Of course, we have seen this on TV crime shows -- a check of the victim or suspect's computer discloses the last sites they were looking at before they disappeared -- restaurants, travels sites, porn, etc. These are stored in the web browser as "history," which can be wiped clean at will by the user, or can be automatically retained.

PAC Heather Willis Neal concludes her opinion:

[M]y opinion is that if an agency does somehow proactively create a record containing the internet history from a public employee’s computer (e.g. printing out or electronically saving a regular report), that would likely constitute a public record disclosable under the APRA [access to public records act] unless an exception to disclosure regarding the subject matter exists in section 4 of the APRA. It is further my opinion that as a general rule the internet history from a public employee’s, official’s, or agency’s computer is not a public record for purposes of the APRA. While a public official’s or employee’s usage of a public computer may be a public integrity question, such issues are not within the purview of this office.

In sum, says the PAC, the information stored in the web browser is not a public record subject to the disclosure law, but if that information (of, for example, an agency's employees' history of browser usage) is regularly compiled into a report, the report itself would be a public document.

Posted by Marcia Oddi on January 28, 2008 09:27 AM
Posted to Indiana Government

Environment - Section 303(d) List of Impaired Waters up for public comment through end of January [Updated]

Gitte Laasby of the Gary Post-Tribune reports today that:

Environmentalists are concerned about the lack of progress toward cleaning up Northwest Indiana's most contaminated waters.

They say the Indiana Department of Environmental Management has focused on completing studies of rivers and streams whose levels of E. coli bacteria are too high. Meanwhile, studies of Northwest Indiana waters that are impaired for mercury, polychlorinated biphenyls and other toxic pollutants are left unfinished, which means clean-up plans are delayed.

Tom Anderson, executive director of Save the Dunes Council, said the waters polluted by bioaccumulating chemicals should have priority.

"We drain into the largest collection of freshwater in this country. I understand you need to have TMDL (studies) on waters flowing out of this state. But these are waters that drain into people's drinking water and have a retention of 99 years," he said.

From later in the story:

The proposed impaired waters list for 2008 is up for public comment until Thursday. It contains 1,877 stretches -- 805 fewer than the last list from 2006. IDEM said contrary to the previous list, the new one is only intended to show pollution hotspots.

IDEM has proposed taking 900 stretches of Indiana waters off the list because the agency adopted a new method to determine what consists an impaired water body, not because sampling data shows the condition of the lake or river has improved.

Hoosier Environmental Council member Bryant Mitol questioned whether IDEM is trying to make the state's waters look better on paper than they really are. He said the change in methodology makes it hard to see whether Indiana's waters have actually improved.

"We have no score to say, are we better or worse?" Mitol said. "All of a sudden, I can slide up there in my canoe. I know that's not the case."

The IDEM webpage for information on "Indiana's Draft List of Impaired Waterbodies 2008" and information about submitting public comments is here

[Updated] The Alliance for the Great Lakes has posted a release that begins:

Indiana seeks to remove hundreds of mercury and PCB-tainted waterways from a statewide list of impaired waters -- including several Lake Michigan tributaries – in a move to free the state of a federal mandate to restore them.

Using new methodology, Indiana's Department of Environmental Management proposes to delete more than 800 stream and river segments from the list, even as state regulators warn the public that contamination makes fish from those waters unsafe to eat.

The proposed methodology would no longer determine a waterway's impairment based on the existence of fish consumption advisories, a measure the U.S. EPA has determined meets the intent of the federal Clean Water Act.

"The agency's decision to exclude water bodies that are impaired as a result of pollution from mercury or PCBs violates the Clean Water Act," said Lyman Welch, Alliance water quality manager.

The change leaves Indiana with no data on mercury and PCB contamination levels for many of the waters in question. As those waters would no longer be defined as impaired, the state wouldn't be required to develop plans to restore them.

Posted by Marcia Oddi on January 28, 2008 09:18 AM
Posted to Environment

Ind. Gov't. - Update on canned hunting

Updating a long list of ILB entries on the status of hunting "preserves" in Indiana, the Fort Wayne Journal Gazette has an editorial today on the death of this year's bill to legalize canned hunting:

Proposed legislation that would have legalized the deplorable practice of canned hunting met a quick death, thankfully, in the legislature. But the hunts, sadly, continue at several high-fence game areas while the Indiana Department of Natural Resources continues its long legal battle to enforce state laws banning them and shut them down.

“Certainly, things stay simple in the litigation not having the new legislation enacted,” said DNR deputy director and chief legal counsel Adam Warnke.

House Bill 1351 died in the Indiana House of Representative Natural Resources Committee last week. The legislation would have allowed licensing of game preserves for hunting of privately owned deer and game birds. It’s unfortunate that while many states are closing down canned hunting operations and enacting bans, some Indiana legislators are still looking to legalize the operations.

The next step in the legal battle is a Feb. 14 hearing in Harrison County Circuit Court. The plaintiffs, owners of 10 high-fenced game preserves, want the court to enforce a proposal that was floated but never finalized during settlement talks between the state and the preserve owners in 2006. The proposed settlement would have allowed existing preserve owners to operate for 10 to 12 years to recoup their investment before ultimately ending canned hunting.

“That was a fluid set of discussions, and there was never a concrete agreement,” Warnke said.

The losing side is certain to appeal, and it’s not likely the court will be able to resolve the issue as quickly as sporting hunters, advocates for humane treatment of animals or the DNR would like. At least state natural resource officials won’t have to contend with new legislation confusing the legal case. It’s enough that they must contend with a handful of preserve owners who want to pass off the slaughter of fenced-in animals as hunting.

Posted by Marcia Oddi on January 28, 2008 09:11 AM
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court:

This Thursday, Jan. 31st:

9:00 AM - Genevieve York v. Citifinancial Mortgage Co., Inc. - In this foreclosure action, the trial court granted in rem summary judgment and a decree of foreclosure to Citifinancial. The Court of Appeals affirmed, holding that Citifinancial's designated evidence supported an entry of summary judgment, and York had failed to designate properly any evidence sufficient to create a genuine issue of material fact. York v. Citifinancial Mortgage Company, Inc., No. 03A01-0612-CV-543, slip op. (Ind. Ct. App. 7/25/2007). [See ILB summary here, 2nd case.] York has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorney for York; Michael Wallace of Indianapolis, IN. Attorney for Citifinancial Mortgage Co., Inc.; Matthew Love of Indianapolis, IN.

9:45 AM - Nicole Huss v. David Huss - In marital dissolution proceedings between Nicole and David Huss, the Adams Circuit Court entered a dissolution decree awarding David custody of the four children. On Nicole's appeal, the Court of Appeals affirmed as to three children, but vacated that portion of the dissolution decree pertaining to one child. Huss v. Huss, No. 01A04-0611-CV-680, slip op. (Ind. Ct. App. July 25, 2007), vacated. [See ILB summary here - 4th case.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over this appeal. Attorney for Nicole Huss; Rick Myersof Bluffton, IN. Attorney for David Huss; Joseph Johnson, II of Decatur, IN.

10:30 AM - Brian Tyler v. State of Indiana - At a jury trial on charges of offenses against children, the Ripley Circuit Court admitted certain pre-trial interviews of the children and the children testified at trial. Following a guilty verdict, Tyler was sentenced to consecutive aggravated terms totaling 110 years. The Court of Appeals affirmed in an unpublished memorandum decision, Tyler v. State, No. 69A04-0702-CR-120, slip op. (Ind. Ct. App. Oct. 31, 2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Tyler; Leanna Weissmann of Lawrenceburg, IN. Attorney for the State; Zachary J. Stock of Indianapolis, IN.

Next week's (2/4/08 - 2/8/08) oral arguments before the Supreme Court: - None scheduled.

Webcasts will be available here.

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

None scheduled.

This week's oral arguments before the Court of Appeals that will NOT be webcast:

This Tuesday, Jan. 29th:

2:00 PM - Northern Indiana Public Service Co. vs. U. S. Steel Group - Northern Indiana Public Service Company (NIPSCO) and U.S. Steel Group (US Steel) executed multiple agreements, two of which were approved by the Indiana Utility Regulatory Commission (IURC). Several years after execution of the documents, a dispute arose regarding the price of electricity. US Steel filed a complaint with the IURC, which later granted US Steel's Motion for Summary Judgment. NIPSCO now appeals. The Scheduled Panel Members are: Judges Najam, Bailey and Crone

This Thursday, Jan. 31st:

10:30 AM - Kevin W. Book vs. State of Indiana - Appellant, Kevin Book challenges his conviction and sentence for murder of a child. The Scheduled Panel Members are: Chief Judge Baker, Judges Darden and Bradford.

Next week's (2/4/08 - 2/8/08) oral arguments before the Court of Appeals - None scheduled.

Posted by Marcia Oddi on January 28, 2008 08:22 AM
Posted to Upcoming Oral Arguments

Sunday, January 27, 2008

Ind. Decisions - Court of Appeals issues 3 on Jan. 25th (and 9 NFP)

The opinions issued by the Indiana Court of Appeals on Friday, Jan. 25th are now available online, via the Indiana Courts website.

For publication opinions Jan. 25th (3):

Erin Nicole Lighty v. Barry R. Lighty, Jr. - "The trial court improperly denied Erin’s motion to correct error and dismissed her child custody action. Although the Kansas court was issuing temporary custody orders, it expressly was deferring a final ruling on child custody jurisdiction until after the Indiana court heard the issue. We reverse and remand."

In David Paul Allen v. City of Hammond, a 10-page opinion, the plaintiff , an attorney with a law office in the scity, filed a complaint for declaratory judgment seeking to invalidate the city's business license fee. Judge Barnes writes:

Ordinance 8590 does not regulate who is licensed as an attorney in Indiana, nor does it place any professional requirements on individuals who practice law in the City. At the most, Ordinance 8590 regulates from where an attorney maintains his or her office. Should a licensed attorney decide not to obtain a business license, he or she cannot maintain a business in the City. However, nothing in Ordinance 8590 prohibits an attorney from representing clients within the City limits and maintaining an office outside of the City. These arguments are unavailing.

Conclusion. Allen has not established that Ordinance 8590 is invalid. Because there are no genuine issues of material fact and the City has established it is entitled to judgment as a matter of law, the trial court properly granted the City’s motion for summary judgment and denied Allen’s motion for summary judgment. We affirm.

In Tamara Johnson v. State of Indiana, a 20-page opinion, Judge Darden writes:

Tamara Johnson (“Johnson”) challenges her convictions, after a jury trial, for operating a vehicle while intoxicated, as a class A misdemeanor; and operating a vehicle with an alcohol concentration equivalent to at least .08 grams of alcohol per 210 liters of her breath, as a class C misdemeanor. We affirm.

Issues: 1. Whether the trial court erred when it allowed the State the benefit of the presumption under Indiana Code section 9-30-6-15(b). 2. Whether the trial court improperly admitted the DataMaster certification into evidence.

NFP civil opinions Jan. 25th (2):

Mary E. Knighten v. Review Board of the Ind. Dept. of Workforce Dev. and Red Roof Inns, Inc. (NFP) - "Mary E. Knighten appeals a decision by the Review Board of the Indiana Department of Workforce Development (“Board”) denying her unemployment benefits. Knighten raises one issue, which we restate as whether the Board’s determination that Knighten was terminated for good cause was reasonable. We affirm."

In Thelma Retz v. Robert Lee, Allen Co. Treas., and Therese Brown, Allen Co. Aud. (NFP), a 13-page opinion, Judge Sharpnack concludes:

We conclude that Swami’s claim that the notice provided by the auditor was in violation of his due process rights was available and could have been litigated during its earlier challenge.12 Accordingly, Swami is precluded by the doctrine of res judicata from claiming that the tax deed is void due to inadequate notice. See Shepherd v. Truex, 823 N.E.2d 320, 326 (Ind. Ct. App. 2005) (holding that appellant’s independent action for fraud on the court pursuant to Ind. Trial Rule 60(B), which in many circumstances is a collateral attack on a judgment, is subject to the doctrine of res judicata). In sum, the trial court erred in granting Swami’s motion for relief from judgment, and therefore we reverse.

NFP criminal opinions Jan. 25th (7):

Christopher Collins v. State of Indiana (NFP)

Darrick W. O'Brien v. State of Indiana (NFP)

Luis Vargas v. State of Indiana (NFP)

James D. Roberson, III v. State of Indiana (NFP)

Darrin P. Stogsdill v. State of Indiana (NFP)

Frank Davis, Jr. v. State of Indiana (NFP)

William Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on January 27, 2008 01:00 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 on Jan. 24th (and 5 NFP)

The opinions issued by the Indiana Court of Appeals on Thursday, Jan. 24th are now, finally, available online, via the Indiana Courts website.

For publication opinions Jan. 24th (3):

Tina N. Grant v. Gregory M. Hager - "Based on the foregoing, we find the trial court did not abuse its discretion by not holding an additional hearing prior entering findings of fact and a judgment on remand, or by awarding child support to Father, the non-custodial parent. Affirmed."

In American Heritage Banco, Inc., Alan W. Sidel, and Sheila Schimmele v. Earl Ford McNaughton, Pamela S. McNaughton, George McNaughton, Parkway Mission Industrial, Accommodations LLC, Macneachdain, Inc. , a 13-page opinion, Judge Robb writes:

American Heritage Banco, Inc., (“AHB”) appeals the trial court’s partial dismissal of its claims against Fremont Plastics, Inc., and Lyndon Tucker, contending the trial court erred in determining that AHB had failed to state a claim upon which relief could be granted. Concluding that the trial court properly dismissed AHB’s claims for fraud and civil conspiracy to commit fraud, but improperly dismissed AHB’s claim for treble damages, we affirm in part and reverse in part.

Jason D. Bunch v. Katherine R. Himm - "Based on the foregoing, we conclude that the trial court did not abuse its discretion by setting aside its default order entered against Himm increasing her child support payments."

NFP civil opinions Jan. 24th (2):

Inv. Term. of Parent-Child Rel. of C.K. and Nicole Knapp and Charles Trice, Nicole Knapp and Charles Trice v. Marion Co. Dept. of Child Serv. and Child Advocates, Inc. (NFP) - Termination; affirmed.

Patrice S. Traore v. Sherry Rightmyer and Preferred Professional, Inc. (NFP) - "Simply put, Defendants cannot have breached the purchase agreement with Traore because they were never parties to it. Consequently, the trial court correctly concluded that Defendants were not proper parties in interest. The judgment of the trial court is affirmed."

NFP criminal opinions Jan. 24th (3):

John Michael Naylor v. State of Indiana (NFP)

Jason L. Reed v. State of Indiana (NFP)

Scott Redford v. State of Indiana (NFP)

Posted by Marcia Oddi on January 27, 2008 12:41 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Neary Will Run For LaPorte Superior 3 Judge.

From the Michigan City News-Dispatch:

La Porte Attorney Greg Hofer announced Friday his Republican candidacy for judge of the La Porte Superior Court No. 3 in La Porte.

The current Superior Court 3 judge is Paul Baldoni, who recently announced his retirement.

Posted by Marcia Oddi on January 27, 2008 12:27 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 on Jan. 23rd (and 18 NFP)

The complete list of opinions issued by the Indiana Court of Appeals on Wed., Jan. 23 is now, finally, available online. This entry replaces the earlier, briefer ILB entry posted Jan. 23rd.

For publication opinions on Jan. 23rd (2):

In Jefferey L. Hiland, Administrator of the Estate of Aubra J. Hiland, deceased v. State of Indiana and Department of Transportation, a 10-page opinion reversing the trial court, Chief Judge Baker writes:

This appeal stems from a fatal car accident that occurred when a vehicle in which eighteen-year-old Aubra Hiland was a passenger left the roadway in Jackson County, overturned on a steep slope, landed in a ditch, and filled with water, killing Aubra and the driver of the vehicle. Aubra’s Estate sued the State for wrongful death and the State sought summary judgment, arguing that it was immune from liability pursuant to the Indiana Tort Claims Act (ITCA). 1 The trial court agreed and granted summary judgment in the State’s favor. Appellant-plaintiff Jeffery L. Hiland, Administrator of the Estate of Aubra J. Hiland, deceased (the Estate), appeals the trial court’s order granting summary judgment in favor of appellees-defendants State of Indiana and Indiana Department of Transportation (collectively, INDOT) on the Estate’s wrongful death action. Specifically, the Estate contends that (1) INDOT is not immune under the ITCA based on twenty-year design immunity or the temporary condition of a public thoroughfare that results from weather, and (2) there is a genuine issue of material fact as to whether INDOT had constructive notice of the dangerous conditions at the site of the accident.

Although the ITCA grants the State immunity from claims based on defects in roadway designs when the design or redesign occurred over twenty years prior to the accident, the State still has a duty to provide reasonably safe public roadways. We find—and the State conceded as much at oral argument—that whether the roadway at issue was in a reasonably safe condition at the time of Aubra’s accident is a question of fact that must be answered by a factfinder. Thus, we conclude that the trial court erroneously granted summary judgment in the State’s favor and remand for trial. * * *

Therefore, we remand this matter for trial. We caution the trier of fact, however, that INDOT was not required to redesign or improve State Road 250 to a point at which it met 2004 safety standards. It was not required to straighten the road or to provide the “best” or “safest” road. Instead, what the factfinder must determine is whether State Road 250 was in a reasonably safe condition at the time of Aubra’s accident. If it was, then INDOT fulfilled its statutory duty. If it was not, then INDOT may be held liable if the Estate proves the other elements of its claim.

In David Gertz and Nichelle Gertz v. Douglas Estes and Susan Estes, an 8-page opinion, Judge Bailey affirms the lower court order that defendants remove their fence:

After a series of unpleasant events, David and Nichelle received a permit for and erected on their property an eight-foot wooden fence, running parallel to and eight inches away from the property line. David estimated the cost of building the fence to be $16,000. All along the three supporting horizontal slats, nail points protruded from the side of the fence facing Douglas and Susan’s property. The nails extended between a quarter- and a half-inch from the fence. * * *

David and Nichelle argue that the statute is inapplicable because they received a local permit for the fence. Having a local permit, however, is irrelevant to application of the statute.

Indiana Code Section 32-26-10-1, titled “Description of spite fence,” defines as a nuisance “a fence unnecessarily exceeding six (6) feet in height, maliciously erected . . . for the purpose of annoying the owners or occupants of adjoining property.” * * *

Conclusion The trial court correctly concluded that receiving a local permit was not a defense for purposes of the spite fence statute. Furthermore, evidence supported the trial court’s findings

.NFP civil opinions Jan. 23rd (3):

In the matter of the termination of parent-child relationship of B.A., S.A., J.D. v. White County Department of Child Services (NFP) Termination; affirmed.

Pike Lumber Co., Inc. v. Frances E. Burnett, Bruce L. Burnett, Trustee Harry Ivan Burnett Credit Trust (NFP) "Here, the Burnetts presented evidence that Frances Burnett and her husband used the Public Road and the Dedicated Roadway approximately four times a year beginning in 1938 to access their property. They continued to use the Public Road and Dedicated Roadway until Pike Lumber gated the Dedicated Roadway in approximately 2002. This evidence was sufficient to demonstrate that the Public Road had not been abandoned."

Antony Bibbs v. Madison County Clerk (NFP) - "Indiana Code section 3-12-6-2(a) requires that a candidate seeking a recount must file a verified petition within fourteen days of the election. Although Bibbs’s petitions were timely, they were not verified."

NFP criminal opinions Jan. 23rd (15):

William J. Woodford v. State of Indiana (NFP)

William Heard v. State of Indiana (NFP)

Demond J. Dixon v. State of Indiana (NFP)

Brock Tamsett v. State of Indiana (NFP)

Christopher F. Nelson v. State of Indiana (NFP)

Nura Shelburne v. State of Indiana (NFP)

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

David Jeffrey Lee v. State of Indiana (NFP)

Kweli A. Quiroz v. State of Indiana (NFP)

Charlton L. Smith v. State of Indiana (NFP)

Terri Musselman v. State of Indiana (NFP)

Randolph Ayers v. State of Indiana (NFP)

Derrick Harrington v. State of Indiana (NFP)

Ronald Druschel v. State of Indiana (NFP)

C.T.S. v. State of Indiana (NFP)

Posted by Marcia Oddi on January 27, 2008 10:22 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Lawyer guilty of attack on woman in wheelchair"

James D. Wolf Jr. of the Gary Post-Tribune reports, in a story that begins:

VALPARAISO -- A jury of six people found former attorney, Lake County prosecutor and Hebron Councilman Michael Haughee guilty of sexual battery, criminal confinement and interference with the reporting of a crime Friday night.

Haughee, who committed these offenses against a woman in a wheelchair, faces two to seven years in prison when he is sentenced on March 6.

The verdicts, returned about 9 p.m., followed Haughee's testimony on the witness stand.

The ILB has several earlier entries on Mr. Haughee and his legal troubles.

Posted by Marcia Oddi on January 27, 2008 09:22 AM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Mediation of family court disputes

Deb Kelly of the Terre Haute Tribune Star reports today on the use of mediation in Vigo County family court disputes. The long story begins:

Some of the most contentious and time-consuming court proceedings in Vigo County are not high-profile criminal cases, but rather, the hundreds of custody, divorce and paternity battles that rage off the radar each year.

As the overwhelmed courts struggle to find time for family legal issues, a little-known resource is working hard to clear the court caseload and make the process less painful for the families involved.

The Family Court Project of Vigo County, which began in 2004 as part of a pilot program of the Indiana State Supreme Court, helps the courts identify families that can benefit from a more informal method of resolving disputes — namely, mediation.

Mediation is a method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution.

The neutral third party, the mediator, sits down with the family members – in a custody dispute, usually the two parents – and helps define the issues, needs and desires of each party. Sometimes attorneys are involved, but often the parties do not have representation.

Whatever agreement is reached has to be agreeable to both parties. The mediator is not a judge and cannot make a binding ruling, but if both parties in a mediation work through the process and compromise, the outcome is positive, according to family law mediator John Roach. Roach, who also serves as Terre Haute City Court judge, has been mediating family and civil cases since 2006.

Posted by Marcia Oddi on January 27, 2008 09:16 AM
Posted to Indiana Courts

Legislative Benefits - "Insulted" legislators; disrespected citizens

Updating these earlier ILB entries on SB 165, dated Jan. 17th and Jan. 20th, Mary Beth Schneider reports today in a front-page story in the Indianapolis Star headlined "Insulted, senators kill legislator-to-lobbyist bill":

State Sen. Patricia Miller started this legislative session with hopes of killing any perception that legislators are using their public jobs to win more lucrative positions as lobbyists.

The Indianapolis Republican's fellow lawmakers, however, were so offended by that perception that they killed her bill.

Senate Bill 165, which died after a contentious Senate hearing this month without getting a vote, would have required legislators to wait one year after leaving office before lobbying the Indiana General Assembly. * * *

Sen. Marvin Riegsecker, the Goshen Republican who controlled the bill's fate as chairman of the Senate Public Policy Committee, said * * * "I don't think the bill would have passed anyway."
It has elsewhere.

Twenty-six states have enacted one- or two-year cooling-off periods for lawmakers.

What's more, in 2005, Gov. Mitch Daniels sought and won passage of a law instituting a similar policy in his administration, barring his aides from lobbying their former colleagues for a year after taking private-sector jobs. * * *

In Indiana, more than 30 former lawmakers have registered as lobbyists, including four former speakers of the House.

Last summer, only a few months after starting new two-year terms in the legislature, two state representatives, Republican Matt Whetstone of Brownsburg and Democrat Bob Kuzman of Crown Point, resigned from office to become lobbyists.

It was those growing numbers that led Miller, R-Indianapolis, to file SB 165 this year, even though similar bills have failed in the past.

"There seem to be more and more legislators being hired away from the General Assembly to come back and lobby," Miller said. "I think we need to be sure that there's no appearance of impropriety" * * *

"To be honest, it almost seemed to me that they wanted to be offended so that they would have an excuse not to deal with the problem," said Patricia Wittberg, a sociology professor at Indiana University-Purdue University Indianapolis and a Catholic nun, who came to testify.

Wittberg said that throughout her 18 years of teaching, when she talks to her students about legislators representing them "in a fair and just way, and not influenced by special interests, the students laugh. They laugh."

It was those words that Sen. Vi Simpson, D-Ellettsville, found among the most offensive. "The testimony was so nasty and mean and personal that the committee members were furious," she said. "It was a very unpleasant confrontation. That's not how you get legislation passed around here."

Sandra Mowell, a member of the League of Women Voters who also testified, said it was lawmakers who were "rather nasty."

"I thought they just reacted rather violently without a whole lot of provocation toward us," she said. "People in elective office may say they want people to participate in this process, but I went away with the definite opinion that that's just talk."

Disrespected citizens. Today's Star also publishes a powerful "My View" piece from Bruce K. Hetrick, relating the way a "public hearing" scheduled last week for a bill on smoke-free workplaces, HB 1057, was conducted. Some quotes:

But last week I experienced first hand the kind of government behavior that breeds cynicism, discourages public participation and leaves citizens outraged and at risk.

The occasion was a public hearing on statewide smoke-free workplace legislation. The bill in question emerged from the Indiana Health Finance Commission. But in one of those make-it-go-away maneuvers, it was assigned not to author Charlie Brown's Health Committee, but to the House Public Policy Committee.

Remarkably, the committee chairman scheduled the bill for a hearing.

On the appointed day, supporters and opponents from all over the state gathered to testify. The room was packed and sweltering.

I sat with a scientist who drove up from Bloomington to share results of a study on secondhand smoke and heart disease.

I talked with a Fort Wayne pediatrician who sacrificed a day of patient care so she could explain the impact of secondhand smoke on children.

I talked with a member of a statewide faith group who came to protect his flock.

The 9 a.m. meeting began late. As we sat and waited, committee members discussed lots of other bills.

Then they launched into a convoluted conversation about hands-free cell-phone legislation.

Finally, around 10:20, the chairman announced the bill we'd all come to address. He said there were many interested people in the room and he wanted to hear from supporters and opponents alike -- this was important legislation, after all.

Reporters readied notebooks. TV cameras zoomed in. Rep. Brown began a brief explanation of the legislation.

But someone wanted to talk some more about cell phones. So that went round and round again -- Rep. Brown waiting patiently at the podium.

Finally, at 10:28 or so, the chairman called my name -- the very first witness to support smoke-free workplaces.

I took the podium. I started to explain how my wife died of cancer. How she never smoked. How her doctors blamed secondhand smoke.

Then the chairman cut me off.

He explained to the scientists, the physicians, the lobbyists, the ministers and all the rest of us who'd come to testify that it was 10:30. He said they were out of time for this year. He said he was sorry.
With that, potentially life-saving legislation died a sudden death.

Rep. Brown shouted out that he would refile the bill next year. * * *

Dear legislators, if you want to earn the citizens' respect, start by respecting the citizens.

Don't tease us with dead-end committee assignments.

Don't manipulate agendas and run out the clock on a public hearing.

Don't ask us to bare our souls if you don't intend to listen.

And please, if you're not going to save lives through healthy public policy, then don't waste the time of doctors, scientists and other health professionals who could better spend their hours trying to address the consequences.

Posted by Marcia Oddi on January 27, 2008 08:46 AM
Posted to Legislative Benefits

Ind. Courts - Reports on bills of interest to the Judiciary that were discussed this week

The Indiana Judicial Center has now posted its third installment of very useful reports for 2008 on bills of interest to the Judiciary. Access them here. This week's report begins:

The General Assembly has completed an extremely busy week of committee hearings. We are approaching the mid-point of the short session. The last day for third readings is Wednesday, January 30th for the Senate and Thursday, January 31st for the House. Below are the reports on the bills of interest.

Posted by Marcia Oddi on January 27, 2008 08:08 AM
Posted to Indiana Courts

Ind. Law - Last Week in Review at the Indiana General Assembly

The Evansville Courier & Press' Bryan Corbin's review of the past week in the General Assembly today is headlined "Time running out on Daniels plan." The story reports:

Now that the Indiana House has passed one version of the governor's property tax relief plan and the state Senate is in the process of passing a different version, the Indiana General Assembly is up against a deadline.

Wednesday is the last day for the House to pass its own bills and send them to the Senate and for the Senate to pass its own bills and send them to the House. Bills not approved in at least one chamber usually are dead for the session. Lawmakers likely will work late Wednesday to beat the deadline. * * *

After Wednesday, the House and Senate will trade bills. * * *

Differences between House and Senate versions must be hammered out before the March 14 adjournment deadline. While taxes have dominated the Legislature's 2008 short session, lawmakers have heard other issues as well:

A Senate vote Thursday on the so-called "pharmacist's conscience" bill deadlocked in a nonconclusive tie vote, 24-24. That means it is not defeated, and could be voted on again. The legislation, Senate Bill 3, says that pharmacists would have the option of refusing to fill prescriptions if they believed the drugs would be used to induce abortion, assisted suicide or euthanasia.

Pharmacies would have to have a backup plan for filling prescriptions if a pharmacist objected, however. Several senators complained the bill could be interpreted to deny customers access to contraceptive drugs.

All five of Southwestern Indiana's state senators — Republicans Vaneta Becker and John Waterman and Democrats Bob Deig, Lindel Hume and Richard Young — voted "no" on Senate Bill 3.

Posted by Marcia Oddi on January 27, 2008 08:00 AM
Posted to Indiana Law

Saturday, January 26, 2008

Law - "Feeling Misled on Home Price, Buyers Are Suing Their Agent"

An interesting story reported by David Streitfeld in the Tuesday, Jan. 22nd NY Times. Are are some quotes:

CARLSBAD, Calif. — Marty Ummel feels she paid too much for her house. So do millions of other people who bought at the peak of the housing boom.

What makes Ms. Ummel different is that she is suing her agent, saying it was all his fault.

Ms. Ummel claims that the agent hid the information that similar homes in the neighborhood were selling for less because he feared she would back out and he would lose his $30,000 commission.

Real estate lawyers and brokers say the case, which goes to trial in the north county division of San Diego Superior Court on Monday, is likely to be the first of many in which regretful or resentful buyers seek redress from the agents who found them a home and arranged its purchase.

“When your house appreciates $100,000 in the first six months, you’re not quite as concerned that maybe the valuation was $25,000 or $50,000 off,” said Clifford Horner of the law firm Horner & Singer. “But when your house goes down, you ask: ‘Who might have led me astray here?’ ”

Agents representing buyers rarely had the opportunity to make mistakes during the last real estate boom, in the late 1980s, because the job hardly existed then. For decades, residential transactions almost always involved brokers who, whatever assistance they gave the buyer, legally represented only the seller.

The long boom that began in the late 1990s put an end to that one-sided world. As prices spiked, buyer’s agents and brokers became popular as sounding boards, advisers and negotiators. The National Association of Realtors estimates they are now involved in two-thirds of all residential purchases.

That makes this the first housing collapse in which large numbers of buyers had a real estate professional explicitly looking after their interests. The Ummel case poses the question: In a relationship built on trust, where promises are rarely written down and where — as in this case — there is no signed contract, what are the exact obligations of these representatives in guiding their clients through a sizzling market?

Posted by Marcia Oddi on January 26, 2008 07:09 PM
Posted to General Law Related

Environment - More on "Indiana Utility Regulatory Commission Gives Duke Energy Indiana Approval to Build Integrated Gasification Combined Cycle Plant"

Updating this ILB entry from Nov. 20, 2007, Jeff Swiatek of the Indianapolis Star has a long, front-page story today that gbegins:

Duke Energy won a state environmental air permit Friday for its proposed coal gasification power plant in southwest Indiana, clearing the way for construction to start on the $2 billion plant, even in the face of regulatory appeals by opponents.

Duke, the largest electricity supplier in Indiana and one of the largest in the nation, said the plant could "make history" by being one of the cleanest coal-fired power plants in the world. It would be the first major power plant built in Indiana in about 20 years.

Duke said it will have to raise electric rates for its 770,000 Indiana customers by 16 percent between 2008 and 2012 to pay for the Knox County plant.

The cost to build the plant will be offset by $450 million in local, state and federal tax incentives.
Opponents, including the Citizens Action Coalition of Indiana, have argued that the plant will spew significant amounts of carbon dioxide and other pollutants into the air and might cost much more if strict regulations are passed on carbon dioxide emissions, which are linked to a rise in global air temperatures.

"While this is certainly cleaner (than older coal plants), it is by no means clean," said Dave Menzer, utility campaign manager for Citizens Action Coalition.

He said the activist group will appeal the Indiana Department of Environmental Management's approval of the air permit.

"Clearly, IDEM is acting as a rubber-stamp here . . . in doing the Daniels' administration bidding," Menzer said. Gov. Mitch Daniels has been a supporter of the plant.

Posted by Marcia Oddi on January 26, 2008 04:52 PM
Posted to Environment

Ind. Courts - Filing for judicial positions in Marshall County primary

Anita Munson reports today in the South Bend Tribune, under the heading "Marshall County GOP fills slate for primary: No Democrats filed on first day":

PLYMOUTH -- Marshall County Republicans got a jump-start by filling the slate Wednesday with candidates for the May primary election.

Wednesday was the first day candidates could legally file their intention to run for office, and several GOP members did just that. No Democrat candidates filed that day, according to Voter Registration office records.

Marshall Superior Court II Judge Dean Colvin, Plymouth, filed to keep his position, as did incumbent Marshall County Commissioners Tom Chamberlin, District 2, Plymouth, and Kevin Overmyer, District 3, Culver. * * *

The only elected race at this point in which there are Republican challengers is the county coroner's position, which will be vacated by incumbent John Grolich. Former Argos Police Chief Ed Barcus and William Cleavenger of Culver, first deputy coroner, are both vying for the job.

But there could be other challengers within the party come the November general election.

That's because of the vacancy created by the resignation of Marshall Circuit Court Judge Michael Cook, effective Feb. 29. Technically speaking, the job is not an office up for election this year in Marshall County, but now there's a vacancy. [ILB - see resignation stories (from 1/23/08) here.]

Indiana Gov. Mitch Daniels will appoint an interim judge to serve until the first general election that follows the appointment. In this situation, that's the November election.

Where it gets a little "fuzzy," according to Patty Jones, Marshall County Voter Registration clerk, is that the Indiana Election Division allows the office to be placed on the May primary ballot. And that's what Marshall County officials have done.

Two Republicans, Joseph Morris and Edward Ruiz, both of Plymouth, have placed their names on the primary ballot for the job, and Curt Palmer, Marshall County prosecutor, also a Republican, announced this week his intention to do likewise.

Posted by Marcia Oddi on January 26, 2008 04:41 PM
Posted to Indiana Courts

Environment - "Grand Calumet River dredge job completed"

Gitte Laasby, environmental reporter for the Gary Post-Tribune, reported Friday in a story that began:

GARY -- U.S. Steel Gary Works has completed its dredging of the Grand Calumet River, removing an estimated 38,000 cubic yards of contaminated sediment from a 6,300-foot stretch of the river.

Company representatives announced at a meeting Thursday night that a hydraulic dredging machine completed the job on Dec. 6. That date marked the end of the second part of a $30 million government-ordered dredging project of a 5-mile stretch of the river.

The company had already removed several hundred cubic yards of sediment containing PCBs, heavy metals, benzene, oil and grease, but the initial cleanup wasn't good enough.

The U.S. Department of Justice ordered the cleanup in 1998 because U.S. Steel Gary Works had violated the Clean Water Act and a court agreement by illegally discharging contaminated wastewater for years.

Although sampling reports have yet to be approved by the U.S. Environmental Protection Agency, U.S. Steel is sure it's done this time.

"Most surely, this time all the material has, indeed, been removed," said Rick Menozzi, U.S. Steel director of environmental remediation.

The Grand Cal dredging was on the table over 20 years ago, when I worked briefly at IDEM, Here are a number of ILB entries going back to 2004 mentioning the Grand Cal cleanup.

Posted by Marcia Oddi on January 26, 2008 12:56 PM
Posted to Environment

Courts - Yet more on "Motion suggests guardian to oversee dogs seized from Vick home"

Updating earlier ILB entries, several stories today report on the success of the effort. From the Gary Post Tribune, Bob Kostanczuk writes:

Being the guardian of the pit bulls seized in the Michael Vick case was a test for Rebecca J. Huss.

"It was a very difficult process," Huss, a Valparaiso University law professor, said Friday. "I lost a lot of sleep. I knew it was going to be a challenging project."

Court-appointed, Huss made a recommendation leading to the placement of 47 American pit bull terriers with eight rescue organizations, none in the Midwest, she said.

Huss was previously unable to speak to journalists because of ongoing criminal proceedings, but on Friday could talk openly about her involvement and Vick, the football star at the center of a dogfighting and animal cruelty scandal that broke last year.

"I don't have really any impressions of him," she said.

"Quite frankly, he was not important to my process because my focus was on the dogs," Huss continued. "I'm very confident that these dogs will be successful with these organizations.

"First of all, I helped determine interim-care arrangements, and then, essentially, my mandate was to recommend the disposition of the dogs. My disposition, fortunately, was that these dogs could all be placed."

"We wanted to make sure that the dogs were placed with organizations that had the capacity to handle the dogs for the long term," the professor said. Best Friends Animal Society in Utah received 22 of the dogs.

From the NWI Times, Heather Augustyn give a very thorough report:

VALPARAISO | A local law professor, who viewed the pit bull terriers involved in the Michael Vick dogfighting case, said Friday those that are still alive were spared because the case was a high-profile case.

Rebecca J. Huss, a professor at Valparaiso University who served as court-appointed guardian and special master of the dogs seized in the Vick case, finally spoke to members of the media Friday after the end of the case.

She told reporters that Oscar Allen, the man who attended dog fights and sold a female pit bull to former NFL quarterback Michael Vick, was sentenced Friday morning to three years of probation, a $500 fine and a $50 special assessment.

Allen was the final co-defendant sentenced in the case brought by the U.S. attorney for Northern Viriginia.

Huss said his sentence was light due to his cooperation with investigators.

An expert in animal law, Huss said the condition of the dogs was typical of what is found in dogfighting enterprises.

"It's pretty common that dogs for fighting are chained," Huss said. "All of these dogs were chained and kept outside. When I viewed the dogs last October, they were in pretty good physical condition, but some had scarring.

"Those who didn't we weren't sure if they had ever actually been used in the fights. But you have to remember, dogs were killed if they didn't perform the way they wanted them to."

Huss received 47 dogs that she placed with eight different rescue organizations. She said none has been adopted yet and the dogs are still undergoing evaluation and training. Some 53 dogs were found at the Vick property in Atlanta last July, but one was euthanized and a number of others died.

"They're going through a process of learning to live in the real world. Keep in mind, these dogs in this case have to be evaluated behaviorally continually, so it's more extensive than a typical case," Huss said.

She said the animals seized in this case were spared because they were in the spotlight.

"The reason why we had to have someone appointed guardian is because of all the attention. The attorney got many calls requesting these dogs. One issue in the past is many dogs seized in other cases don't go into placement but are euthanized," she said.

The placement process and the spaying, neutering and microchipping of each dog were part of Vick's agreement to plead guilty to federal conspiracy charges stemming from his involvement in the animal fighting venture.

"He had to make restitution so this process could be used," Huss said.

She stressed the importance of looking at each dog independently.

"Each dog needs to be individually considered and each dog's behavior considered" Huss said, adding that families who adopt the dogs in the future will sign a waiver to indemnify the adoption organization.

Posted by Marcia Oddi on January 26, 2008 12:46 PM
Posted to Courts in general

Environment - More on "House panel stiffens confined feed rules"

In this ILB entry from Jan. 16th, SB 61 and HB 1168 are mentioned. Both are now dead for the session, according to this story today by Rick Yencer of the Muncie Star-Press that begins:

Add a handful of bills involving confined animal feeding operations to the list of dead issues to the sort session of the Legislature.

"It is a sad day for the rural citizens and the environment," said Barbara Cox, a CAFO opponent who owns a farm in Randolph County.

Tom Chalfant, president of the Randolph County Farm Bureau, said the state already had enough regulations over large livestock operations. "There is not a better fit with corn and soybean farmers than with livestock," said Chalfant, a grain farmer.

Sen. Beverly Gard, R-Greenfield, chairman of the Senate Energy and Environmental Affairs Committee, let a trio of CAFO bills die this week, including a CAFO moratorium bill filed by fellow Republican Sen. Allen Paul of Richmond. [ILB - that would be SB 61. ] Thursday was the deadline for bills to come out of committee during the short session.

"I will file this again next year," said Paul, whose district includes Wayne, Randolph and Jay counties, all of which have livestock CAFOs.

Gard said there was not enough time to give the issue a hearing, given all the debate on property tax relief during a short session that ends March 14.

In the House, a bill that established good character disclosure for livestock operations and establishes fees for construction and modifications got out of the House Agriculture and Rural Development Committee, but failed to get through the Ways and Means Committee by deadline. [ILB - that would be HB 1168. ]

[More] Purdue now has this website providing access to a number of CAFO-related papers

Posted by Marcia Oddi on January 26, 2008 09:22 AM
Posted to Environment

Ind. Courts - Still more on "Revised law in play on Wilkes sentence"

Updating ILB entries from Jan. 25th and from Jan. 20th, Kate Braser of the Evansville Courier & Press reports today in a story headlined "Wilkes sentence sets up test case for 2002 death penalty change":

Vanderburgh Circuit Court Judge Carl Heldt's decision Friday to sentence convicted murderer Daniel Ray Wilkes to death marks the first time since Indiana law was changed in 2002 that a judge has had to determine the sentence in a capital murder case after a jury deadlocked over the penalty.

The 2002 amendment required a judge to follow a jury's sentencing recommendation in the case. Before that, judges needed only to consider the jury's recommendation, but could enter a different penalty in a capital murder case.

Last month, 12 jurors seated to hear the trial in Clark County, Ind., convicted Wilkes of three counts of murder in the April 2006 slayings, but in the penalty phase of the trial were deadlocked 11-1 regarding Wilkes' sentence.

Defense attorneys have said the law in some other states requires a judge to sentence a defendant to life in prison without parole when a jury cannot reach a unanimous decision regarding the death penalty. But in Indiana laws require that if a jury cannot reach a unanimous verdict about the penalty in a capital murder case, the trial judge alone determine the sentence.

During and after Friday's sentencing hearing, defense attorneys said repeatedly that a death penalty ruling in the case could open the door to years of appeals, possibly leading all the way to the U.S. Supreme Court.

Addressing their assertions that any penalty other than a prison term would be unconstitutional, Heldt said the laws are clear.

"The law in Indiana clearly states the indecision of a jury cannot be considered by the court," Heldt said.

He set Wilkes' execution date for Jan. 25, 2009, but that will likely be delayed, as defendants issued the death penalty are guaranteed an automatic appeal.

After the sentencing, defense attorney Barbara Williams said Wilkes' case had exposed a "clear flaw in the statute."

"That portion of the statute has never been reviewed by the federal courts," she said. "This will be a huge appellate issue and could result in a U.S. Supreme Court case."

Posted by Marcia Oddi on January 26, 2008 08:18 AM
Posted to Ind. Trial Ct. Decisions

Friday, January 25, 2008

Ind. Decisions - Transfer list for week ending January 25, 2008

Here is the Indiana Supreme Court's transfer list for the week ending January 25, 2008. Be sure to view all 4 pages.

No transfers were granted this week.

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 January 25, 2008 03:07 PM
Posted to Indiana Transfer Lists

Ind. Law - More on: Hoosier homeowners hit by perfect storm

Updating this ILB entry from August 25, 2007 about ballooning property tax bils and home prices spiraling downwards (if there were buyers), the NY Times reports today, in a story by Michael M. Grynbaum, that is headed "Home Prices Sank in 2007, and Buyers Hid":

The median price of an American single-family home fell in 2007 for the first time in at least four decades, according to the National Association of Realtors, a trade group.

“It’s the first price decline in many, many years,” the group’s chief economist, Lawrence Yun, said Thursday. “And possibly going back to the Great Depression.”

The median price of a single-family home fell 1.8 percent, to $217,800, the first annual decline since reliable records began in 1968.

And even as prices plummeted, buyers vanished. Over all, sales of previously owned single-family homes dropped 13 percent in 2007, the biggest decline in a quarter-century. (The group’s survey excludes newly constructed homes.)

Economists now say the housing market, plagued by its worst downturn since the early 1990s, will not bottom out until at least the summer, and even then sales are expected to remain sluggish. [ILB emphasis]

Posted by Marcia Oddi on January 25, 2008 01:17 PM
Posted to Indiana Law

Law - New blog on criminal law launched

The Ohio State Journal of Criminal Law has started a blog, OSJCL Amici: Views from the Field, described as:

A first-of-its-kind, online resource for timely and critical commentaries on the cutting edge of criminal law. Our hope in creating this resource is to help bridge the divide between the academy and the practicing community by creating a venue for leading practitioners to engage with academics, students, the public, and others in the criminal law field.

Access it here.

Posted by Marcia Oddi on January 25, 2008 12:29 PM
Posted to General Law Related

Ind. Decisions - Court of Appeals opinions not posted again Thursday

Although things looked brighter late Wednesday afternoon when the Court of Appeals opinions from earlier this week were finally made available online, again Thursday the Court of Appeals issued a number of opinions, but they have yet to be posted online.

The Clerk of the Courts has posted this message on the Indiana Appellate Opinions page:

Due to technical problems, some opinions recently handed down are not available on this website. Work is being done to correct the problem; please check the site later. If you need a copy of an opinion, please contact the Clerk's Office.

Yesterday afternoon the ILB sent a note to the Clerk, offering to post the opinions online each day (via the ILB) until the state problems are resolved. As yet, no response has been received.

Posted by Marcia Oddi on January 25, 2008 11:12 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - More candidates seek judicial nominations

"Judge Brugnaux seeking another term in Superior Court" is the headline to this story by Howard Greninger in the Terre Haute Trib-Star:

Barbara L. Brugnaux will seek a third term as judge of Vigo County Superior Court Division 5, announcing Thursday she will file today for re-election in the May 6 primary election. * * *

Brugnaux will file as a Democrat. Christopher J. Dailey, former Terre Haute City Court judge, filed Wednesday as a Republican candidate for Division 5 judge.

Fourteen years ago, when Judge William McClain was suspended and temporarily lost his seat, Brugnaux was appointed by the Indiana Supreme Court to fill it, making her the first female judge in Vigo County. Brugnaux was appointed to the position by the governor when McClain later was permanently removed.

Brugnaux, who turns 60 in April, won election as judge of Division 5 court in 1996 and 2002. * * *

Division 5 is among the busiest courts in Vigo County, with more than 1,500 criminal cases, mostly driving while intoxicated and felony drug possession cases, and 3,900 civil cases in 2007.

Dailey, 44, was appointed Terre Haute City Court Judge by Gov. Mitch Daniels last year, to replace Michael Lewis, who had won election to Vigo County Superior Court Division 6. Dailey lost in his first election bid in November for City Court to current Judge John Roach, a Democrat.

"Trent to run as Independent in Court 1" is the headline to a story in the Lafayette Journal Courier:

Attorney Rebecca Trent chose to run as an Independent for the seat of Superior Court 1 because she believes judges should not have political ties.

The partner with Brookston law firm Robert H. Little hopes voters keep that in mind when they go to the polls in November. * * *

The race for Superior Court 1 is shaping up to be a three-person contest in November. Lafayette attorney Randy Williams is running on the Republican ticket. Mike Trueblood, also a Lafayette-based attorney, plans to run as a Democrat.

Posted by Marcia Oddi on January 25, 2008 10:52 AM
Posted to Indiana Courts

Ind. Courts - More on "Revised law in play on Wilkes sentence"

Kate Braser of the Evansville Courier & Press reports today:

More than 20 years ago, another Vanderburgh Circuit Court judge was in a position similar to the one Judge Carl Heldt faces today, when he will decide what punishment to render in Daniel Ray Wilkes' capital murder case.

In 1982, jurors deliberated for more than two days before telling then-Vanderburgh Circuit Court Judge William H. Miller they were hopelessly deadlocked over the fate of Daryl McReynolds. * * *

Indiana law regarding death penalty cases was different in 1982 than it is today. In McReynolds' case, jurors had several penalty options. They could recommend the death penalty or a prison sentence ranging from 30 to 270 years.

Unlike today, Indiana law at that time required only a judge to consider the jury's recommendation. Today, the law requires a judge to abide by the jury's decision. Miller ultimately sentenced McReynolds to 270 years in prison and recommended that future governors never pardon him.

"At that time we did not have life without parole as an option, so Judge Miller maxed him by giving him the maximum penalties for each count, all consecutive," Standley said.

Posted by Marcia Oddi on January 25, 2008 10:49 AM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Lawyers reluctant to challenge sitting judges?

The Evansville Courier & Press has an interesting editorial today, its premise is that few lawyers will challenge sitting judges for their seats, because if they lose they will have to practice before the judge. The editorial concludes:

Our point in bringing up the reluctance of lawyers to seek office against sitting judges goes to our belief that these are some of the most important offices in county government. It in no way goes to the performance of the sitting judges; in fact, as we have said in the past, Vanderburgh County has had a strong lineup of sitting judges who are experienced, conscientious and knowledgeable.

But we believe that all incumbent officeholders will serve us better if they are made to defend their records, at least during each election cycle.

That it does not happen more often is unfortunate.

Posted by Marcia Oddi on January 25, 2008 07:36 AM
Posted to Indiana Courts

Legislative Benefits - Still more on "Legislator to Lobbyist" slowdown bill gets cold shoulder

Updating this ILB entry from Jan. 20th, Indianapolis Star columnist Matthew Tully writes again today on the revolving door in Indiana between legislators and lobbyists. Aquote:

The Statehouse is full of one-time legislators who now lobby their former colleagues. The phenomenon is neither new nor limited to Indiana. But unlike many other states, Indiana doesn't even try to slow the legislative revolving door, which contributes to the cozy relationship between lobbyists and lawmakers.

The two most recent lawmakers-turned-lobbyists were re-elected to the House in 2006. Both served less than half of their terms and are now working for big-name lobbying firms.

Posted by Marcia Oddi on January 25, 2008 07:27 AM
Posted to Legislative Benefits

Ind. Decisions - Supreme Court won't review Atkins guardianship case

Last Friday, Jan. 18th, the ILB reported that the Supreme Court had denied transfer in the case of Guardianship of Patrick Atkins, Brett Conrad v. Thomas and Jeanne Atkins.

Today the Indiananpolis Star has this brief item:

The Indiana Supreme Court has declined to get involved in a case pitting a man against his longtime partner's parents in a bid for guardianship.

In June, the Indiana Court of Appeals sided with a Hamilton County judge who denied Brett Conrad's request to grant him control of Patrick Atkins' care. The two had been partners for 25 years, but Atkins fell seriously ill nearly three years ago after suffering a ruptured aneurysm and a stroke.

Jeanne and Thomas Atkins, Carmel, opposed Conrad's request for guardianship, and Jeanne Atkins said she disapproved of her son's relationship. The appeals court did order the lower court to grant Conrad the right to visit Atkins.

The state Supreme Court on Jan. 17 denied Conrad's request to review the appeals ruling.

Posted by Marcia Oddi on January 25, 2008 05:58 AM
Posted to Ind. Sup.Ct. Decisions

Thursday, January 24, 2008

Law - "Foreclosures Prompt Cities to Make Plea for Aid"

A troubling article today in the NY Times, reported by Ian Urbina, on how the subprime collapse is crippling the budgets of the nation's cities. It is not difficult to envision the impact on Indiana's cities, already in the midst of a property tax crisis. Some quotes:

WASHINGTON — Facing a collapse in the subprime mortgage market that has pockmarked their cities with vacant houses and crippled their budgets, the nation’s mayors pleaded Wednesday for a huge infusion of federal aid.

As more than 250 mayors gathered in Washington for the winter meeting of the United States Conference of Mayors, many agreed that the collapse of the subprime market had left a growing problem of vacant houses, depressed property values, tighter credit, and a need to cut services to close municipal budget gaps. * * *

In December, the conference released a study that said that home values would drop by $1.2 trillion in 2008, hitting city budgets the hardest. States are also beginning to suffer; on Wednesday, the Center for Budget and Policy Priorities in Washington reported that at least 16 states had predicted budget shortfalls for 2009 totaling over $30.1 billion.

“We’re the ones left boarding up these places, cutting their grass, doing demolition on the abandoned structures, picking up the trash, making sure no one breaks in,” said Mayor Frank Jackson of Cleveland.

Cuyahoga County, Ohio, which includes Cleveland, has more than 16,800 homes that have been abandoned because of foreclosures. * * *

The subprime mortgage problem has left many cities scrambling to cut services to try to close budget gaps.

City officials in Sacramento have responded to a $55 million projected budget shortfall for next year city by ordering an immediate hiring freeze and an end to some discretionary spending.

In Virginia, Fairfax County is facing a $220 million deficit for the coming fiscal year and is considering cuts to school districts.

This month, Baltimore’s mayor and City Council announced plans to sue Wells Fargo Bank, contending that the bank’s lending practices discriminated against black borrowers and led to a wave of foreclosures that has reduced city tax revenues and increased its costs.

Cleveland has sought monetary damages from 21 lenders.

“By driving down the value of nearby homes, foreclosures also drive down city revenues and place additional financial burdens on the city and its residents,” said Mayor Sheila Dixon of Baltimore. “It is our responsibility to do what we can to stop it.”

Posted by Marcia Oddi on January 24, 2008 03:54 PM
Posted to General Law Related

Ind. Decisions - 7th Circuit denies FedEx review

On Jan. 22nd the 7th Circuit, according to this item from RTT News:

declined to hear the request of FedEx Ground, an operating unit of FedEx Corp. (FDX), for interlocutory review of the class certification decision in the Kansas case pending before the United States District Court in Indiana. The decision had granted class certification on the Kansas state claims and a national ERISA claim.

The court did not rule on the validity of the contractor model. It also has not decided class certification in any other multi-district litigation case.

For more see "Lawyers for FedEx Drivers Laud Federal Appeals Court Ruling Denying Company's Appeal of Driver Class Certification" (here) from CNNMoney:

SAN FRANCISCO, Jan. 23 /PRNewswire-USNewswire/ -- Lawyers for FedEx Ground/Home Delivery drivers who have been misclassified as independent contractors instead of employees today are hailing the decision of the U.S. Court of Appeals for the 7th Circuit upholding the granting of class certification by the U.S. District Court in Indiana.

The three-judge panel yesterday rejected FedEx's request to review the nationwide class certification of the drivers' claim for employee benefits under the Employee Retirement Income Security Act (ERISA) and other state claims, said Lynn Rossman, lead counsel for the drivers in their nationwide class action.

"This is the latest in a string of major legal setbacks for FedEx," commented Faris. "We now look forward to the District Court issuing the class certification decisions in the remaining lawsuits. The 7th Circuit decision also means the cases can move forward without the delay an appeal would have created. We are one step closer to justice for the tens of thousands of misclassified FedEx drivers."

She noted that the Internal Revenue Service recently ordered FedEx to pay back taxes and penalties of $319 million for a single year, after finding that FedEx misclassified drivers as contractors instead of employers. The total financial liability FedEx faces in the IRS case has been estimated by stock analysts at between $1 billion and $2.5 billion. That does not include what FedEx owes its drivers for expenses, improper deductions from wages and overtime.

And from this article by Colleen Paulson in Motley Fool, a story today that begins:

Is self-employment really the American dream? And what does it mean to be self-employed, anyway? FedEx (NYSE: FDX) and its independent contractor ground drivers are facing those questions right now.

Posted by Marcia Oddi on January 24, 2008 01:52 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More candidates seek judicial nominations

From the Goshen News:

Peter D. Todd has filed the paperwork to become a Republican candidate for Judge of Superior Court 5 in Elkhart County.

Posted by Marcia Oddi on January 24, 2008 01:42 PM
Posted to Indiana Courts

Ind. Decisions - SCOTUS to hear second Indiana case

A very brief story today in the Indianapolis Star reports:

The U.S. Supreme Court has set a date to hear arguments in the Indianapolis case of a man who wants to be his own lawyer.

The justices will hear Ahmad Edwards' case March 26. In 2005, Edwards was convicted in Marion Superior Court of attempted murder and other charges in a 1999 lunch-hour shooting outside Circle Centre mall.

A judge ruled him competent to stand trial but said mental illness prevented him from being able to represent himself. Indiana courts overturned the conviction, and the Indiana attorney general's office asked the high court to take up the case.

The case is Indiana v. Ahmad Edwards. The issue is: Whether the Sixth Amendment grants a defendant found competent to stand trial the right to represent himself in a criminal proceeding. The SCOTUSBlog Wiki entry provides access to the briefs.

The ILB reported on the cert grant in this Dec. 7, 2007 entry. The news here is that this week the SCOTS released the date set for oral arguments -- Wed., March 26th.

Here are pertinent ILB entries on the Indiana Supreme Court's decision in this case:

Ind. Decisions - "As it stands today, we are bound by these authorities as Supreme Court precedent"

Here is a quote from our Supreme Court's May 17th decision in Ahmad Edwards v. State: Here we have a determination by an experienced trial judge that Edwards was incapable of presenting a defense. That determination is necessarily based on factors...

Posted in The Indiana Law Blog on May 21, 2007 09:45 AM

Ind. Decisions - More on: Supreme Court reverses attempted murder conviction

Re yesterday's Supreme Court decision in Ahmad Edwards v. State (see ILB entry here), here are quotes from an AP story which the Indianapolis Star has headlined "Schizophrenic can represent himself. "Anyone who is competent to stand trial has the right...

Posted in The Indiana Law Blog on May 18, 2007 07:48 AM

Ind. Decisions - Supreme Court reverses attempted murder conviction [Updated]

Ahmad Edwards v. State - in a 10-page, 5-0 opinion Justice Boehm writes: "Edward's conviction for attempted murder and battery with a deadly weapon are reversed and this case is remanded for further proceedings. We summarily affirm the Court of...

Posted in The Indiana Law Blog on May 17, 2007 02:55 PM

Posted by Marcia Oddi on January 24, 2008 06:23 AM
Posted to Ind. Sup.Ct. Decisions

Wednesday, January 23, 2008

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP) [Updated]

[This entry has been replaced by an updated entry posted Jan. 27th.]

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (3):

Randolph Ayers v. State of Indiana (NFP)

Terri Musselman v. State of Indiana (NFP) [Added 1/25/08]

Derrick Harrington v. State of Indiana (NFP) [Added 1/25/08]

Posted by Marcia Oddi on January 23, 2008 07:32 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issued 6 opinions on 1/22/08 (and 9 NFP)

The COA opinions from Tuesday, Jan. 22, 2008 are now available.

For publication opinions 1/22/08 (6):

In City of Charlestown Advisory Planning Commission v. KBJ, LLC , an 11-page opinion, Judge Barnes writes:

The Planning Commission is estopped from asserting that Danbury Oaks does not comply with the Charlestown subdivision ordinance. See Equicor, 758 N.E.2d at 40 (“In sum, the Planning Commission had ample opportunity to point out any deficiency in the designation of parking, and Equicor reasonably relied on the absence of any parking issue in processing its proposal. Under these circumstances, the Commission was estopped from asserting this deficiency as the reason for its disapproval of Equicor’s plat.”). Accordingly, the Planning Commission’s refusal to reapprove the replat was arbitrary and capricious. The trial court properly granted KBJ’s petition for writ of certiorari. * * *

Even assuming KBJ is correct in its assertion that Indiana Code Section 36-7-4-1010 applies to plan commissions in addition to boards of zoning appeals, this Section only applies to “costs” and does not mention “attorney fees.” Indiana follows the general rule that each party must pay his or her own attorney fees. * * *

Because Indiana Code Section 36-7-4-1010 does not contain a provision regarding the payment of attorney fees, it cannot be read to authorize such. Regardless of whether the Planning Commission acted in bad faith, as the trial court specifically found, Indiana Code Section 36-7-4-1010 does not authorize the recovery of attorney fees.

Conclusion The trial court properly determined that the Planning Commission erred in denying KBJ’s application for the reapproval of the replat. The trial court improperly awarded KBJ attorney fees pursuant to Indiana Code Section 36-7-4-1010. We affirm in part and reverse in part.

Cynthia Ogle v. East Allen County Schools and East Allen County Schools Employee Group Benefit Plan - "Cynthia Ogle was treated for Common Variable Immune Deficiency (CVID) using intravenous immunoglobulin replacement therapy (IVIG). Her employer, East Allen County Schools, paid for the treatments through its self-funded employee benefit plan (“the Plan”). The Plan administrator’s independent medical reviewers determined the treatment was not medically necessary, and the Plan stopped paying. Ogle sued and the trial court granted summary judgment for the School. On appeal, Ogle argues there are factual questions as to whether the reviewers found the treatments medically unnecessary. We affirm."

In Spring Hill Developers, Inc. and John G. Brinkworth v. Delbert N. Arthur, Jr. and Judith A. Arthur , a 17-page opinion, Judge Robb writes:

Spring Hill Developers, Inc., and John Brinkworth appeal the trial court’s grant of summary judgment in favor of Delbert “Sonny” Arthur and Judith Arthur. On appeal, Spring Hill and Brinkworth raise one issue, which we restate as whether the trial court properly granted summary judgment in favor of the Arthurs. Concluding that the trial court properly applied the statute of frauds to bar Spring Hill’s and Brinkworth’s complaint, we affirm. * * *

Applying the standard expressed in section 129 of the Restatement, we are not convinced the part performance doctrine applies to remove Sonny’s promise from the statute of frauds. Assuming Brinkworth sufficiently changed his position in reliance on Sonny’s promise, the nature of the injury cannot be characterized as so substantial that injustice can be avoided only through specific performance. In this respect, it is important to reiterate that nothing prevents Brinkworth from receiving the reasonable value of his services or restitution, or both. See supra, Part II.A. (discussing possible remedies for Brinkworth’s injuries). Because Spring Hill and Brinkworth cannot establish that injustice can be avoided only through specific performance, it follows that the part performance doctrine does not apply to remove Sonny’s promise from the statute of frauds.

In Jet Credit Union n/k/a Credit Union v. John V. Loudermilk and Continental American Insurance Co., et al, a 7-page opinion, Judge May writes:

Jet Credit Union believed John Loudermilk, a director and officer, committed “acts of malfeasance,” (Br. of Appellant Jet Credit Union (hereinafter “Jet Br.”) at 2), that caused Jet financial losses. Jet would not allow Loudermilk to withdraw the funds he had on deposit with Jet while it was trying to determine the extent of Loudermilk’s financial liability to Jet. In a declaratory judgment the trial court determined Jet could not withhold the money, and Jet released it. Loudermilk later sued Jet for criminal conversion and obtained summary judgment. Because there is no genuine issue as to whether Jet acted with criminal intent, we reverse and remand. * * *

Administrative agencies enjoy broad authority to interpret and enforce pertinent statutes. * * * We acknowledge nothing in Ind. Code chapter 28-11-4 explicitly authorizes DFI to interpret a statute, nor did the legislature explicitly prohibit it from doing so. Nevertheless, we decline Loudermilk’s invitation to hold an administrative agency necessarily “oversteps its authority” anytime it interprets a statute, even if it does not have explicit legislative authorization. In light of DFI’s interpretation of the statute, Jet could not have been aware of a high probability its control over Loudermilk’s money was unauthorized. It therefore had no criminal intent.

Summary judgment for Loudermilk was improper because the designated evidence demonstrates Jet lacked criminal intent. We accordingly reverse and remand for entry of summary judgment in favor of Jet. governing statutes. Rather, we address the effect DFI’s opinion had on whether Jet was aware of a high probability its control over Loudermilk’s money was unauthorized.

In James D. Massey and Margaret E. Massey v. Conseco Services, LLC , a 15-page opinion, Judge May writes:

James D. Massey appeals from summary judgment for Conseco Services, L.L.C. (“Conseco Services”) on its breach of contract claim and the dismissal of his counterclaims. We affirm. [See this ILB entry from 1/23/08]

In Pansy M. Ickes v. Gregory K. Waters, Esq., an 8-page opinion, Judge May writes:

Pansy M. Ickes alleges Gregory K. Waters failed to exercise ordinary skill and knowledge in counseling her and preparing her estate plan. Pansy appeals from summary judgment for Waters. We affirm, finding the trial court properly concluded the statute of limitations had run. * * *

Alternatively, Pansy argues the statute of limitations did not run because of the “continuous representation doctrine.” * * * Even if we were to adopt this rule, Pansy has not designated evidence that she subjectively intended or reasonably expected the relationship to continue. Therefore, summary judgment was appropriate.

NFP civil opinions 1/22/08 (6):

Jerry Terry, Dorman Hill, Barry Clevenger, et al v. Max Rudicel, James Siefert, Ron Chambers, et al (NFP) - "Concluding that the trial court properly applied the statute of frauds to bar Spring Hill’s and Brinkworth’s complaint, we affirm."

James Tomlinson and Frances Tomlinson v. Jerry R. Howard, Indiana Dept. of Transportation, and State of Indiana (NFP) - "The trial court properly struck Tomlinsons’ Exhibit Four from the designated materials and properly granted summary judgment for Howard and INDOT."

Mark P. Campbell v. A.A.A. Bail Bonds, Inc., et al (NFP) - "We conclude that the trial court did not abuse its discretion in denying Campbell’s motions to strike portions of two affidavits because the affidavits comported with Indiana Trial Rule 56(E). Further, we conclude that the undisputed facts show that A.A.A. is permitted to recover under the Indemnity Agreement and that the record does not support Campbell’s contention that there are no damages. Summary judgment in favor of A.A.A. is appropriate."

Gerald Morgan, Rosetta Morgan and A & A Machine Service, Inc. v. Service Industries, LLC, Peter and Heidi Lachmann (NFP) - "Concluding that the trial court properly granted summary judgment on the issue of whether the Lachmanns had acquired a prescriptive easement and whether the Lachmanns had acquired title to the property by adverse possession, we affirm. The Lachmanns also argue that the trial court improperly denied its motion for attorneys’ fees, and also request that we award attorneys’ fees incurred in defending this appeal. Concluding the trial court acted within its discretion in declining to award attorneys’ fees, we affirm the trial court in that respect as well. We also conclude that this appeal was not frivolous, and decline to award appellate attorneys’ fees."

Randall Carl Freeman v. Crystal Freeman (NFP) - "Petitioner-Appellant Randall Carl Freeman appeals the trial court’s denial of his motion to correct error following the court’s distribution of property in the dissolution of Randall’s marriage to Respondent-Appellee Crystal Freeman. We affirm."

James Garrett Small v. Indiana Family and Social Services Administration, et al (NFP) - "I agree with the majority that Marion Circuit Court is the appropriate court to consider Small’s complaint. However, I concur in result because I believe that Indiana Code section 33-29-6-3 would have been an appropriate alternative by which the Marion Superior Court could have handled this case."

NFP criminal opinions 1/22/08 (3):

Roger A. Greathouse, Jr. v. State of Indiana (NFP)

John Carl Fultz v. State of Indiana (NFP)

Milton Smith, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on January 23, 2008 07:19 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - More judicial announcements

From Tree County 1330 in Greensburg:

Williams files early for Decatur Superior Court Judge.
Lora Reed Williams filed paperwork today to run for Decatur Superior Court Judge.

From the Michigan City News-Dispatch:

Neary Will Run For LaPorte Superior 3 Judge.
Democrat Robert Neary has announced his candidacy for La Porte Supe-rior Court 3 judge, the position being vacated by retiring Judge Paul J. Baldoni. Superior Court 3 is in La Porte.

Posted by Marcia Oddi on January 23, 2008 07:08 PM
Posted to Indiana Courts

Ind. Decisions - Supreme Court posts one today, decided 1/22/08

In Randolph County v. Chamness, a 5-page, 5-0 opinion on an interlocutory appeal, Chief Justice Shepard writes:

This case arose when a car carrying four young women left the roadway in Randolph County, and overturned and ejected one of its occupants in Delaware County, severely injuring her. The dispute so far has centered on which county has venue, the very sort of procedural wrangle that venue rules seek to avoid. We hold that when a vehicle leaves the pavement on one side of a county line and comes to rest on the other side, preferred venue lies in both counties. * * *

This extraordinary situation, evocative of a law professor’s hypothetical, merely calls for adherence to the spirit of convenience underlying the venue rules, rather than an examination of the technical language.3 Witnesses are likely to be found in either or both counties. A police report is just as likely found in either county. A jury viewing of the accident site is easily arranged from either county. Most people would say that this accident occurred in both counties, and if we were to hold that an “accident or collision” must occur only in one county, we would not add any level of convenience, only a level of disputatiousness.

If a car runs off the road in one county, and lands in another, an injured plaintiff may file suit in either county. Our construction of Rule 75(A)(3) in this rare circumstance does no violence to the rule’s language, nor can be it be said that the narrow rule we announce today defies the expectations of litigants.

Conclusion. We affirm the trial court’s decision denying change of venue from Delaware County.

Posted by Marcia Oddi on January 23, 2008 06:18 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: OK, where are these opinions?

Earlier today the ILB noted that Court of Appeals opinions were not being posted online this week. A second entry followed up with a report of a conversation between the ILB and COA Chief Judge John Baker, who stated that the Clerk's Office has been and continues to be many weeks behind in opening and processing paperwork of all kinds.

A reader who does a lot of appellate work wrote shortly thereafter about Judge Baker's statement:

This is kind. The [clerk's] office is a disaster. There has been all sorts of turnover, and new staff (at least some of them temps) have no idea what they are doing. There are usually stacks of paper everywhere, and it literally takes weeks for many things to show up on the docket. Lawyers can no longer rely on it.

Although it now appears that the failure to post opinions online this week was due to a computer glitch, the operation of the Clerk's Office is certainly an issue worthy of further comment. The smooth and timely operation of that Office is pivotal to the State's judicial system.

The ILB would welcome hearing from readers who have experience with the Clerk's Office, supporting or disagreeing with what has been written today. (Please let me know if you agree to be identified by name.)

Posted by Marcia Oddi on January 23, 2008 05:33 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Marshall County Circuit Court Judge Michael Cook to resign

From WTCA 1050 in north central Indiana:

Marshall County Circuit Court Judge Michael Cook notified Governor Mitch Daniels on December 31st of 2007 of his intention to resign his position effective at midnight on February 29th.

After more than 29 years on the bench, Judge Cook will take some time to make maple syrup and work on the reconstruction of his home following the tornado this fall that damaged the home and took down 19 trees on his property.

Although stepping away from the bench he still plans on being involved in the legal system. Cook said he plans on sending letters on March 1st to selected law firms in northern Indiana offering his services as a mediator. Judge Cook said in a phone interview Tuesday afternoon that with the Rules for Alternative Dispute Resolution bringing some uniformity into dispute resolution with the view that the interests of the parties can be preserved in settings other than the traditional judicial dispute resolution method he feels his expertise can serve those parties involved in legal battles.

Michael Cook will turn 57 this year. He said with nearly 30 years as a judge, “the time is now for a change.” Cook said, “I just want to quietly fade into the sunset without any big deal.”

And a follow-up story:

Due to the resignation of Judge Michael Cook, Marshall County will soon be selecting a new judge for the Marshall Circuit Court for the first time in twenty-nine years. Prosecuting Attorney Curtis Palmer has announced his candidacy for Circuit Court Judge for the upcoming primary and general elections in 2008.

Curtis Palmer, 48, of Plymouth has been the Marshall County Prosecuting Attorney since 1995 and has been in the prosecutor's office for a total of 23 years. He was a also a ten year member of the Plymouth civil law firm of Jones, Huff and Palmer (now Jones, Huff and Jones).

Posted by Marcia Oddi on January 23, 2008 05:23 PM
Posted to Indiana Courts

Ind. Decisions - Chief Judge Baker on: OK, where are these opinions?

Earlier this afternoon the ILB noted that no COA opinions have been posted online since last Friday, although apparently opinions have been issued, as two press stories quoting opinions have appeared.

A few minutes ago, the ILB spoke with Chief Judge John Baker about the problem. Judge Baker said the Court of Appeals has indeed issued many opinions since last Friday, none of which, unfortunately, have yet been posted to the Internet. But, he continued, the problem is much larger than just the failure to post opinions.

The Clerk's Office, Judge Baker said, has been and continues to be many weeks behind in opening and processing paperwork of all kinds.

Part of the problem can be attributed to the fact that the work load of the Court of Appeals continues to increase; over 2,509 cases in 2006 jumped to 2,868 in 2007. And filings, according to the Judge, are up even more.

Judge Baker said he has expressed his concerns to Kevin S. Smith, Clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court, and Judge Baker said he could report that personnel are being added help alleviate the problems. Because there is no more room in the Office, the added employees are being put on a half shift, working when the other employees are gone.

The good news, says Judge Baker, is that according to Clerk Smith, everything should be caught up by mid-February.

A report from the Indiana Lawyer this afternoon puts the blame on the State's internet provider:

"We regret this is happening, but it's a hazard of technology," said Indiana Supreme Court Administrator and Appellate Clerk Kevin Smith. "You'll have to do what you did before the Internet: travel to Indianapolis to look at them."

Posted by Marcia Oddi on January 23, 2008 03:48 PM
Posted to Ind. App.Ct. Decisions