Thursday, April 03, 2008
Ind. Courts - More "Governor appoints Bluffton City Judge"
Updating this ILB entry from Feb. 28, quoting from the Governor's press release appointing Bob Bate, and this one from Jan. 19, quoting a Fort Wayne Journal Gazette story that reported in part:
Markley took office Jan. 1 and quit 14 days later. The part-time job pays less than $9,500 and involves handling traffic tickets, ordinance violations and other small civil matters.Yesterday the Bluffton News-Banner reported, in a story by Glen Werling:On Jan. 15, Markley submitted his resignation to Bluffton Mayor Ted Ellis, blaming poor record keeping by his predecessor, Markley’s own “limited technology skills” and a “lack of knowledge of the requirements of the court system,” according to his resignation letter.
April 15 is the target date to reopen city court, according to newly-appointed Judge, Bob Bate.Bate was appointed to the position by Gov. Mitch Daniels Feb. 28 following the resignation of Gary Markley, who defeated long-time incumbent Lyle Cotton in last November’s election.
Even though the court has been essentially “closed” since Cotton’s last day on the job in December—Markley never held court before resigning—Bate said that payments for tickets are still being accepted at the Bluffton Police Department.
“We’re still taking care of people, we’re just not holding any court right now,” said Bate. However, if anyone wishes to pay a ticket, they may bring it to the Bluffton Police Department during business hours of 8 a.m. to 4 p.m. and pay the receptionist either cash or money order for the fine and fees.
“We will not accept personal checks,” iterated Bate. * * *
The delay in getting started with court has partly to do with the changes that Bate plans to implement to make the court more user friendly.
“We’re going to hire a full time person who will split time between the police department and the city court so that people can come in and pay tickets anytime. They won’t have to come in on just Tuesdays or Thursdays,” said Bate.
The delay has also been caused by a need to do some house cleaning, admitted Bate.
“We’re going through and rearranging some things and we’ve applied with the state to get some of the older records destroyed,” said Bate, adding, “Some of those records go way, way back. We’re just trying to clean house.”
Posted by Marcia Oddi on April 3, 2008 03:20 PM
Posted to Indiana Courts
Law - "Lawyers Fight DNA Samples Gained on Sly"
A long and very interesting front-page NY Times article today on “surreptitious sampling” of DNA, reported by Amy Harmon. Some quotes:
The two Sacramento sheriff detectives tailed their suspect, Rolando Gallego, at a distance. They did not have a court order to compel him to give a DNA sample, but their assignment was to get one anyway — without his knowledge.Recently, the sheriff’s cold case unit had extracted a DNA profile from blood on a towel found 15 years earlier at the scene of the murder of Mr. Gallego’s aunt. If his DNA matched, they believed they would finally be able to close the case.
On that spring day in 2006, the detectives watched as Mr. Gallego lit a cigarette, smoked it and threw away the butt. That was all they needed.
The practice, known among law enforcement officials as “surreptitious sampling,” is growing in popularity even as defense lawyers and civil liberties advocates argue that it violates a constitutional right to privacy. Mr. Gallego’s trial on murder charges, scheduled for next month, is the latest of several in which the defense argues that the police circumvented the Fourth Amendment protection against unreasonable search and seizure.
Critics argue that by covertly collecting DNA contained in the minute amounts of saliva, sweat and skin that everyone sheds in the course of daily life, police officers are exploiting an unforeseen loophole in the requirement to show “probable cause” that a suspect has committed a crime before conducting a search.
“The law cannot tolerate such back-door methods, which seize something that any reasonable person expects to remain private,” Mr. Gallego’s lawyer, David Lynch, wrote in a motion to suppress the DNA evidence extracted from the cigarette butt.
Posted by Marcia Oddi on April 3, 2008 02:37 PM
Posted to General Law Related
Law - "Private data tossed in the trash by businesses trigger a crackdown"
Tresa Baldas of The National Law Journal writes today in a story that begins:
Shred it, or regret it.That's the message that attorneys, and state and federal authorities, are sending out to companies that throw sensitive and confidential information into the trash, an illegal yet widespread practice that has triggered litigation and legislation in several states.
The practice has become particularly prevalent in the crippled banking and mortgage industries.
"Local offices are being closed. Local mortgage companies are going out of business. There is so much information left behind when that happens," said attorney Luis Salazar, a member of the data privacy and security law group in Greenberg Traurig's Miami office.
But the problem goes far beyond foundering mortgage loan companies.
Texas Attorney General Greg Abbott has filed six lawsuits against companies in the past year, including CVS Caremark Corp., RadioShack Corp. and Select Medical Corp., alleging illegal disposal of records.
Most recently, Abbott announced a judgment on March 26 against CVS, which will pay $315,000 and overhaul its information security program to settle claims that hundreds of customer records were dumped behind a CVS store in Liberty, Texas. Texas v. CVS Pharmacy, No. CV-72881 (Liberty Co., Texas, Dist. Ct.).
CVS spokesman Michael DeAngelis said that all 6,200 CVS stores have policies in place to protect the privacy of their customers. He also said that no personal customer information was disclosed in the Liberty incident.
SPREADING CRACKDOWN
In Indiana, the attorney general has filed 36 complaints with the state pharmacy board against 18 pharmacies -- including CVS and Walgreens Co. -- and 18 pharmacists for allegedly throwing personal medical information into the trash.In Kentucky, an investigation by the state attorney general's office last fall revealed that 33 companies were illegally dumping private records into the trash. Charges were not filed, but the attorney general's office said that it is working with the companies to bring them into compliance with state disposal laws.
Posted by Marcia Oddi on April 3, 2008 12:36 PM
Posted to General Law Related
Ind. Courts - Yet more on the sealing of records in the Clerk of the Courts Office
Perhaps related to the total disappearance of some cases from the Clerk's docket, so that even the fact of their existence is no longer discernible, an attorney who recently visited the clerk's office sends this note this morning:
I saw your posts about the juvenile records, and realized that I had seen a notice on the cabinet where extra copies of briefs and motions are shelved awaiting pick up by attorneys who want file-stamped copies back.See this post from yesterday.The notice reads: "If you are looking for extra copies of a filing from a Juvenile matter (JV) please see a Case Manager for assistance. Those items will no longer be placed on this bookshelf for pick-up."
And to quote again from the ending of the original post on this topic yesterday:
The first time one of my cases was sealed, I called the Clerk's office to inquire and was told that one of the parties must have requested it. Uh, no. That would have required a filing of some sort, I would imagine. And as the attorney of record, I didn't receive anything.The ILB had a number of entries last year on the topic of secret dockets - i.e. court cases being kept off the public docket so that not even the fact of their existence is knowable. To review these entries, start with this post from Oct. 18, 2007. The examples, however, involve wrongful sealing by judicial order, not by administrative action.I just checked one of my old TPR cases I did from earlier this year. Completely missing from the docket. No record found. Yet that case was not sealed the entire time I was progressing through the Court. And interestingly, the opinion issued and posted online used the parties' names (since they were adults) but changed the child's name to initials. Why would that case need to be sealed? Yet while searching for that TPR case, I found other TPR cases that were NOT sealed.
Posted by Marcia Oddi on April 3, 2008 12:12 PM
Posted to Indiana Courts
Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP), including an interlocutory appeal lost in the Clerk's office for eight months
For publication opinions today (2):
In State of Indiana v. Harold Lewis, a 10-page opinion, Judge Crone writes:
On interlocutory appeal, the State challenges the granting of a motion in limine filed by defendant Harold Lewis. The State asserts that in this trial on a charge of criminal recklessness resulting in serious bodily injury, the State should be permitted to present evidence of the victim’s death, which occurred after Lewis allegedly shot him. We reverse and remand. * * *This follows upon the ILB entry from March 27th and is the fifth such case that has surfaced so far. And this one is an interlocutory appeal, which as such is supposed to be expedited according to Appellate Rule 21(A).Applying the aforementioned law to the present dispute, we must conclude that while Lewis was free to request a stipulation regarding serious bodily injury, the State was not required to agree. Moreover, the State is entitled to prove that Lewis committed criminal recklessness resulting in serious bodily injury by evidence of its own choice. Thus, assuming admissibility decisions are based upon our Indiana Rules of Evidence, gory photographs, the fact that Hensley died some time after the incident, other evidence, and/or some combination thereof, may all be fair game. Accordingly, we must reverse the grant of Lewis’s motion in limine and remand for proceedings consistent with this opinion.
_____________
Ftnote 1 [on p. 6] Although briefing was complete in June 2007, we did not receive this case from the Clerk’s office until February 28, 2008. We regret the delay – particularly in an interlocutory appeal.
Although in the March 27th opinion, CJ Baker advised counsel that after your appeal has been fully briefed, check that it has in fact been transmitted to the judges (rather than simply assuming that the court is taking a long time to act on it). However, as we learned yesterday from several readers, some cases have been totally (and inexplicably) "disappearing" from the online docket.
In Progressive Halcyon Insurance Company v. Michael and Autumn Petty, a 17-page opinion, the question is whether Michael and Autumn are entitled to underinsured motorist (“UIM”) coverage under Autumn’s policy with Progressive. The trial court said yes. Judge Crone writes:
In sum, we conclude that Michael and Autumn are not entitled to UIM coverage under the Policy. Therefore, we reverse and remand with instructions to grant summary judgment in Progressive’s favor.NFP civil opinions today (0):
NFP criminal opinions today (4) [Link to Cases]:
Jill A Hayden v. State of Indiana (NFP)
Julie A. Gardiner v. State of Indiana (NFP)
Sammy Davis v. State of Indiana (NFP)
Felix Hernandez v. State of Indiana (NFP)
Posted by Marcia Oddi on April 3, 2008 11:36 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Questions posed to candidates in Floyd County Superior Court 3 Democratic Primary
The New Albany News & Tribune is running Q&As in contested primary races, including The Superior Court 1 & 3 Democratic primaries. Take a look here at Court 3 and here at Court 1. Several interesting questions are asked and answered.
Posted by Marcia Oddi on April 3, 2008 10:33 AM
Posted to Indiana Courts
Ind. Law - Yet more on: Jeffersonville bans sex offenders from parks
Updating this ILB entry from Sept. 13, 2007, Ben Zion Hershberg of the Louisville Courier Journal reports today in a story that begins:
A convicted sex offender who is banned by a Jeffersonville ordinance from entering city parks has asked a judge for permission to watch his son play baseball in the city's Little League complex.
AdvertisementAn April 11 hearing is set in Jeffersonville City Court to consider the request by Eric Dowdell, 34, who said he will seek an exemption from the ban based on his completion of counseling, probation and other requirements set by the ordinance for an exemption.
"I do think kids needs to be protected," Dowdell said. But he said he believes a distinction should be made between someone like him, who made a mistake years ago and has been a good parent, and someone who might harm children.
Dowdell was convicted of sexual battery in 1996, according to the Indiana Sheriff's Registry of Sex Offenders, and was no longer required to register as an offender after 2006.
Although Dowdell lives in Clarksville and his 11-year-old son plays in the Little League there, the games will be played in the Jeffersonville complex this year because the Clarksville site is undergoing a $5.3 million renovation.
Dowdell also sought a Jeffersonville exemption last year to attend games that his son played there, but the request was denied by then-City Judge Scott Lewis because Dowdell didn't have all the documentation required under the ordinance to obtain an exemption.
Posted by Marcia Oddi on April 3, 2008 10:26 AM
Posted to Indiana Law
Ind. Decisions - "Dad wins due-process appeal: Parental rights wrongly severed"
Yesterday's COA decision in the case of Term. of Parent-Child Rel. of S.F. and J.F., and Michael Farley v. Allen County Child Services (ILB entry here) is the subject of a story today in the Fort Wayne Journal Gazette. Reporter Niki Kelly writes:
An Allen County judge violated a Fort Wayne man’s due process rights when he used information from an outside investigation to terminate the man’s parental rights, the Indiana Court of Appeals ruled Wednesday.In 2005, two of Michael Farley’s children were found to be in need of services based on one of them having scabies and lice, as well as overall concerns regarding the children’s living conditions.
The Allen County Department of Child Services then filed a petition in July 2006 to terminate Farley’s rights to the two children.
A trial took place in December 2006, and in February, the trial court issued an order saying “additional investigation is required” and requesting an inspection of Farley’s home by the Fort Wayne-Allen County Health Department.
Two judges are listed on Wednesday’s court ruling – Allen Superior Court Judge Charles Pratt and Senior Judge William Briggs – but the decision is unclear as to which judge acted in the case.
After receiving a report from the health department, the judge issued an order in April terminating Farley’s rights as a parent, finding “there is a reasonable probability that the conditions that resulted in the child’s removal and the reasons for the placement of the child outside the home will not be remedied.” * * *
Farley sued, alleging the trial court’s independent investigation about 45 days after the conclusion of the trial violated his due process rights. He said that after the trial court received the report, no further proceedings were held and that he was not given an opportunity to cross-examine the health department inspector or to offer his own evidence contradicting the report.
The Indiana Court of Appeals agreed, saying that if the state had met its burden in providing clear and convincing evidence that the conditions that led to the children’s removal had not been remedied, the additional inspection would have been unnecessary.
“Here, not only did the trial court conduct an independent investigation, it did so without giving Farley an opportunity to respond. This is fundamental error,” the appellate ruling said.
Posted by Marcia Oddi on April 3, 2008 10:20 AM
Posted to Ind. App.Ct. Decisions
Ind. Gov't. - "Colleagues in politics salute Okeson's service"
Niki Kelly of the Fort Wayne Journal Gazette reports today on the death of Indiana attorney and Fort Wayne native John Okeson. Some quotes:
Former Republican state officeholder John Okeson, who died suddenly late Tuesday after a short illness, strived to leave every place or situation he was in at least a little better than he found it.Mitch Harper of Fort Wayne Observed posted a number of entries yesterday on Mr. Okeson's passing. He reports:Friends and colleagues said Wednesday that he did just that.
The news of Okeson’s death shocked those in Fort Wayne and Indianapolis, where he split time as a father of three, a lawyer and public servant.
“There have been a lot of tears around here today, and some of them are mine,” Gov. Mitch Daniels said. “He was wise and calm under pressure. I learned a lot from him.”
Okeson worked as Daniels’ senior legislative counsel for nearly two years. * * *
Okeson graduated from Carroll High School and Indiana University-Purdue University Fort Wayne before receiving a law degree from Indiana University in 1989. He was considering a run for county auditor when several local politicos convinced him to think bigger.
Instead he ran for Indiana clerk of courts – and was elected at age 33 in 1994. Bucking conventional political wisdom, he didn’t seek a second term because he felt he had accomplished what he could. The office is now an appointed position.
That wasn’t the first time Okeson would make news not running for office. In the years to follow, his name popped up as a potential candidate for dozens of posts – from mayor to state party chairman to lieutenant governor to attorney general.
“He was always the guy who was Mr. Clean and when people wanted to have an outstanding candidate with impeccable credentials and background, his name would always surface,” said Steve Shine, Allen County Republican Party chairman. “All I can say is I am shocked, and it’s a tragedy to lose someone so young and vigorous.”
The funeral service for John Okeson will be held at 1 PM Saturday at Trinity English Lutheran Church in downtown Fort Wayne.Calling hours are 2 PM to 4 PM and 6 PM to 8 PM at the church at 405 W. Wayne Street. Burial will be in Highland Park Cemetery on Fort Wayne's north side.
Posted by Marcia Oddi on April 3, 2008 07:22 AM
Posted to Indiana Government
Wednesday, April 02, 2008
Ind. Courts - Even more on the sealing of records in the Clerk of the Courts Office
Yet another reader writes in response to this post this morning:
I agree with many of the concerns you posted from a reader earlier today. Some of my juvenile cases have disappeared from the docket; others are still there. Although I am quite concerned about juvenile privacy rights, I would never have suggested removing a case from the docket. The online docket in no way violates a juvenile's privacy rights. It does, however, provide very important and timely information to counsel.
I'm not sure who made this decision or when, but I think it is ill-advised and hope it will be changed.
Posted by Marcia Oddi on April 2, 2008 05:53 PM
Posted to Indiana Courts
Ind. Courts - Yet more on the sealing of records in the Clerk of the Courts Office
Updating this ILB entry from this morning, another reader writes:
I too have had a case go from present online with "sealed" annotation to completely missing.
Posted by Marcia Oddi on April 2, 2008 01:31 PM
Posted to Indiana Courts
Ind. Law- More on: 2008 US News Law School Rankings now available
Updating this ILB entry from last Friday, the WSJ Law Blog has an interesting entry this morning about how the U.S. News rankings are unrealistic because they rank the handful of national schools along with regionally-based schools which have "strong local ties," and treat law schools as "interchangeable commodities."
Posted by Marcia Oddi on April 2, 2008 12:04 PM
Posted to Indiana Law
Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)
For publication opinions today (2):
In Term. of Parent-Child Rel. of S.F. and J.F., and Michael Farley v. Allen County Child Services, a 15-page opinion, Judge Barnes writes:
Michael Farley appeals the termination of his parental rights to his children, J.F. and S.F. We reverse and remand.In Marlene Decker v. David K. Zengler, et al, a 12-page opinion, Judge Sharpnack concludes:Issue. Farley raises three issues. We address the dispostive issue, which we restate as whether Farley was denied due process when the trial court conducted an independent investigation and did not allow Farley an opportunity to respond. * * *
Because of the trial court’s independent investigation and the trial court’s failure to provide Farley an opportunity to respond to the Health Department’s report, Farley was denied due process. We reverse and remand with instructions for the trial court to conduct another trial.
The Siblings and the Estate have produced no evidence that, at the time Helbling and Decker created the joint accounts, Helbling did not intend for Decker to have a right of survivorship, or that Helbling’s intent later changed and she notified the financial institution in writing to this effect. Accordingly, there is no genuine issue of material fact about these issues. The Siblings and the Estate have failed to overcome the statutory presumption in favor of a right to survivorship, and we therefore hold that Decker is entitled to summary judgment as a matter of law. See, e.g., Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 42-43 (Ind. 2002) (holding that the trial court correctly entered summary judgment in favor of defendant and denied plaintiff’s motion for summary judgment where plaintiff failed to establish by clear and convincing evidence that defendant breached its duty to act in good faith).NFP civil opinions today (0):For the foregoing reasons, we reverse the trial court’s grant of the motion for summary judgment filed by the Siblings and the Estate and the trial court’s denial of Decker’s motion for summary judgment and remand for proceedings consistent with this opinion.
NFP criminal opinions today (6):
Brian E. Kemp v. State of Indiana (NFP)
David D. Darr v. State of Indiana (NFP)
Shan Vandervliet v. State of Indiana (NFP)
Sylvester Anderson v. State of Indiana (NFP)
William Long v. State of Indiana (NFP)
Jerry Larkey v. State of Indiana (NFP)
Posted by Marcia Oddi on April 2, 2008 11:33 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - More on the sealing of records in the Clerk of the Courts Office
The ILB has posted a number of entries on sealed cases. A good wrap-up is provided by this ILB entry from July 12, 2007.
A very big concern is that when an entire case is sealed, the case must least be listed in the Clerk's docket, with at a minimum a notation that the case has been sealed. Otherwise, there is no way for the public to know that the case is in the system. Another concern may be that cases are "sealed" arbitrarily and not listed at all.
This morning the ILB received several communications from reader who does a lot of appeals. With permission, here are some quotes:
I am a faithful reader of your blog and have been watching the discussions closely about the Appellate Courts' Clerk's Office. I practice regularly in the Court of Appeals and have had up to this point no problems with the Clerk's Office. I read most of the opinions handed down by the Court, so I've read the Court's multiple footnotes about cases that have been "lost" in the Clerk's office. Usually the Court warns that attorneys need to keep on top of our cases by checking the online appellate docket regularly. Which I do. However, recently the Clerk's office has begun "sealing" cases that deal with juvenile delinquency matters and TPR/CHINS matters. No big deal, except for two things: (1) they do not inform the attorneys of record when they do this; and (2) they have begun completely removing any information about the case from the online docket, even the case's very existence.More:
Case in point: I am currently working on an appeal in a juvenile delinquency case. Over a week ago, I filed a motion for extension of time within which to file my brief * * *. I then heard nothing about my motion. Because my brief was due tomorrow and concerned that something might have happened, I contacted a staff attorney at the Court of Appeals and was told my motion had already been granted, but that he could not give me details about the Order. However, he assured me the information would be posted on the online docket quickly. I checked the online docket yesterday afternoon and found that the Order still had not been posted, only my motion. I arrive at work this morning to check again; only this time, there is no record of the case. I search my last name, the client's last name, the old cause number, and the new cause number...nothing. I finally call the Clerk's office and am told that the case is sealed, so I will no longer be able to access information about the case online.
What seems particularly odd to me is that juveniles' names are initialed in all of our filings, in the opinion itself, and on the online docket in order to maintain their anonymity. Why would there be a further need to completely remove the online docket information? Furthermore, how are we as attorneys supposed to make sure our cases are "transmitted" to the Court of Appeals in a timely fashion if we cannot check their progress on the online docket?
What is weird is that when they began "sealing" the cases online, there used to be a notation when you looked the case up on the online docket that it was "sealed." Now there is no record of the case at all. It just makes no sense, considering that the opinion issued in these cases will all be posted online for all to read, so why would the docket, which really contains very little useful information to anyone other than the parties, not be allowed to be posted at all?More:
The first time one of my cases was sealed, I called the Clerk's office to inquire and was told that one of the parties must have requested it. Uh, no. That would have required a filing of some sort, I would imagine. And as the attorney of record, I didn't receive anything.
I just checked one of my old TPR cases I did from earlier this year. Completely missing from the docket. No record found. Yet that case was not sealed the entire time I was progressing through the Court. And interestingly, the opinion issued and posted online used the parties' names (since they were adults) but changed the child's name to initials. Why would that case need to be sealed? Yet while searching for that TPR case, I found other TPR cases that were NOT sealed.
Posted by Marcia Oddi on April 2, 2008 10:09 AM
Posted to Indiana Courts
Courts - New York judges may sue for raises
Joel Stashenko of the New York Law Journal reports today:
As the New York Legislature prepared to begin passing the 10th consecutive budget that does not contain a pay raise for judges, Chief Judge Judith S. Kaye's attorney on Monday outlined her possible suit to force lawmakers and the governor to break the salary impasse."This is a legitimate case, a legitimate legal case," attorney Bernard W. Nussbaum told more than 100 judges and other supporters of a judicial pay raise who gathered Monday at New York State Bar Association headquarters in Albany.
Though Chief Judge Kaye continued to insist that a pay suit by the judiciary against the other two branches of state government was a last resort, she spoke for the first time of when she was prepared to bring the action.
"I would say shortly, during April," she said. "Earlier rather than later." * * *
Kaye said the problem with the judicial pay increase was, once again, the refusal of some lawmakers to depart from tradition and raise judges' salaries without also increasing their own. Neither judges nor legislators have gotten a raise since January 1999, and the chief judge said judges have since suffered a 26 percent erosion in salary due to inflation.
For a number of reasons -- chiefly, the poor economy and the fact it is an election year for all state lawmakers -- legislative leaders have discouraged their members from seeking a pay raise in the budget. More typically, lame-duck Legislatures return after Election Day to approve pay-raise bills in the increases that have been enacted over the past two decades.
Kaye said Monday that court administrators and judges are tired of being given lip service that a judicial pay increase is "right on the horizon." * * *
Kaye has retained Nussbaum, a former White House counsel and litigation partner at Wachtell Lipton Rosen & Katz, to represent her in the threatened suit against the governor and Legislature. Nussbaum is working pro bono.
If it comes to a suit, Nussbaum said the action would probably be filed in Manhattan Supreme Court. The judiciary would seek to have the case heard as expeditiously as possible, he said.
"We're going to call the chief judge to the stand -- she's the plaintiff -- so she can describe some of the things she described today," Nussbaum told the pay advocates at the state bar Monday. "And then we're going to call [Assembly] Speaker [Sheldon] Silver to the stand, and we're going to call Sen. Bruno to the stand. ... We'll call [Gov.] David Paterson to the stand. And let them explain the hostage-taking. Let them explain why, for over a decade, they've allowed judges' pay to be cut by 26 percent. That'll be our case, and that'll be my arguments."
He said a suit by the judiciary would accuse the other two branches of failing their constitutional obligation to provide for an independent judiciary by not voting a raise sooner. The chief judge's suit would also contend that judges are being singled out for unfair pay treatment in a state government where, virtually, all other employees get cost-of-living adjustments and other salary increases.
The action also would argue that judges' constitutional protection against having their salaries diminished is being violated by denying them raises for nearly a decade. The effects of inflation during the period effectively represents a reduction in salary for judges, Chief Judge Kaye said.
According to Nussbaum, top state courts in both Pennsylvania and Illinois have upheld suits seeking higher judicial pay on grounds similar to those he would argue in New York on behalf of the chief judge.
Posted by Marcia Oddi on April 2, 2008 09:57 AM
Posted to Courts in general
Ind. Decisions - "Ex-professor loses appeal over lawsuit"
The Supreme Court's decision yesterday in the case of Virginia Hartman and Suzanne Swinehart v. Dr. Gabe Keri (ILB entry here - 2nd case) is the subject of a story today in the Fort Wayne Journal Gazette. Niki Kelly reports:
The Indiana Supreme Court ruled Tuesday that a former IPFW professor cannot sue two students who filed complaints against the teacher under the school’s anti-harassment procedure.“We hold complaints made by a current student pursuant to a university anti-harassment policy are protected by an absolute privilege and cannot serve as the basis for civil liability to a person who is the subject of the complaint,” the court found in a unanimous decision.
Gabe Keri had sued Virginia Hartman and Suzanne Swinehart in Allen Superior Court for alleged slander, libel and malicious interference with Keri’s employment contract. The trial court refused to grant summary judgment to the women, which would have ended the case.
The Indiana Supreme Court took the case on interlocutory appeal to address an issue of first impression in Indiana – or a subject that has not yet been ruled on. * * *
Keri sued Purdue University in federal court, but the court eventually granted summary judgment on behalf of the school. He also sued Hartman and Swinehart in state court.
“Hartman and Swinehart acted under the procedure Purdue established,” the Supreme Court opinion said.
“Protecting their complaints with anything less than an absolute privilege could chill some legitimate complaints for fear of retaliatory litigation.”
The ruling also noted that Purdue’s procedure is orderly and reasonably fair and requires discipline for those who file knowingly false or malicious complaints.
“If Keri has been unfairly treated, his complaint is against Purdue University as the architect and implementer of the policy and procedures, not the students who invoked the process,” the decision said.
Karen Orr, attorney for Swinehart and Hartman, said she and her clients were pleased with the decision.
Keri’s attorney did not return several messages left Tuesday.
Posted by Marcia Oddi on April 2, 2008 06:09 AM
Posted to Ind. Sup.Ct. Decisions
Tuesday, April 01, 2008
Ind. Decisions - "High Court Upholds Life Sentence In Child's Torture, Murder" [Updated]
Channel 6 News, Indianapolis, reports this afternoon on the Supreme Court's decision earlier today in the case of Michelle Gauvin v. State, summarized here in the ILB.
[Updated 4/2/08] "Court upholds sentence: Stepmother will serve life term for Aiyana's death" is the headline to this report on the decision by Sophia Voravong of the Lafayette Journal & Courier.
Posted by Marcia Oddi on April 1, 2008 04:19 PM
Posted to Ind. Sup.Ct. Decisions
Courts - Do state courts flout Supreme Court precedent?
An article in the March 2008 issue of Cornell Law Review, authored by Frederic M. Bloom, Assistant Professor of Law, Saint Louis University, and titled "State Courts Unbound", begins:
State courts live by simple rules. One rule holds that state courts may adjudicate federal questions—or most of them, at least. Another rule permits state courts to play a pivotal role in the “elaboration of federal constitutional principles.” But still another rule says that state courts may not reject binding Supreme Court precedent—or so we tend to think.Thanks to How Appealing for the link.There are good reasons to believe this third rule still holds true. Venerable doctrine, long-enforced court hierarchies, and deepseated fears of jurisprudential “chaos” all teach a now-familiar lesson: state courts must abide Supreme Court doctrine on questions of federal law. This is a brute fact of adjudication, a now-standard legal refrain.
But like any refrain too many times repeated, this one has grown a bit stale. So confident are we that state courts will not disregard Supreme Court doctrine that we scarcely notice when and why they actually do.
And state courts do flout Supreme Court precedent. In fact, state courts have done so very recently and very insistently, nowhere more clearly than in cases highlighting the Court’s recent docket—like Lockyer v. Andrade, Roper v. Simmons, and Smith v. Texas.
Posted by Marcia Oddi on April 1, 2008 03:16 PM
Posted to Courts in general
Ind. Courts - More on: "Landowner calls move by pipeline company as intimidation"
Jason Thomas reports this afternoon in the Indianapolis Star that:
An interstate pipeline company has reached an agreement with a group of landowners that were the target of a federal lawsuit filed by the pipeline last month to gain immediate access to their property.Rockies Express, LLC was seeking the court's permission to access the land to conduct surveys to finalize the 638-mile route of Rockies Express - East, the final leg of a more than 1,600 mile pipeline project stretching from Colorado to Ohio.
AdvertisementThe landowners and the pipeline company reached an agreement this morning prior to a hearing on the lawsuit, which asked for temporary restraining orders to allow the survey work.
U.S. District Court Judge Richard L. Young granted restraining orders against seven property owners who did not appear at today's hearing.
The request for restraining orders were dropped against those landowners who reached an agreement with the pipeline company.
As part of the agreement, the pipeline company must give 48 hours notice before entering onto the property owners' land.
Posted by Marcia Oddi on April 1, 2008 03:13 PM
Posted to Ind Fed D.Ct. Decisions
Ind. Decisions - Supreme Court issues a third opinion today
In Theron W. Hunter v. State, a 7-page, 4-1 opinion, in a case argued Nov. 15, 2007, Justice Dickson writes:
The determinative issue in this case is whether there was sufficient evidence to support the revocation of the defendant's probation for violating a probation condition of disputed mean-ing. We conclude that the condition lacked sufficient clarity to provide the defendant with fair notice that the conduct at issue would constitute a violation of probation. * * *The specific probation condition alleged to have violated required:
The defendant must never be alone with or have contact with any person under the age of 18. Contact includes face-to-face, telephonic, written, electronic, or any indirect contact via third parties. You must report any incidental contact with persons under age 18 to your probation officer within 24 hours of the contact.This probation condition was expressly stated in the trial court's sentencing judgment. The trial court revoked probation, ordered the remaining sentence served, and imposed additional sanctions. The Court of Appeals affirmed by memorandum decision. Hunter v. State, 69C01-9912- CF-43 (Ind. Ct. App. June 21, 2007). We granted transfer and now reverse. * * *If the trial court intended a condition of probation to prohibit the defendant from the be-havior shown by the evidence in this case, effective deterrence and fair advance notice necessi-tate that the choice of language must clearly describe the prohibited conduct. The probation condition in this case lacked sufficient clarity to provide the defendant with fair notice that the conduct at issue would constitute a violation of probation. * * *
Boehm and Rucker, JJ., concur.
Shepard, C.J., concurs in result.
Sullivan, J., dissents with separate opinion.
Posted by Marcia Oddi on April 1, 2008 03:02 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)
For publication opinions today (1):
In Michael R. Craig v. State of Indiana, an 11-page opinion, Judge Barnes concludes:
The trial court erroneously denied Craig’s motion to withdraw his guilty plea because the double enhancement was improper based on Mills. There is sufficient evidence to support Craig’s conviction for possession of a firearm by a serious violent felon. Craig’s twenty-year sentence is not inappropriate. We affirm in part, reverse in part, and remand for the vacation of the habitual offender enhancement.NFP civil opinions today (3):
In Thelma Retz, Robert Lee - Allen County Treasurer, and Therese Brown - Allen County Auditor v. Swami, Inc. (NFP), a 4-page opinion, Judge Crone writes:
Swami, Inc., petitions for rehearing in Retz v. Swami, Inc., No. 02A03-0706-CV-254 (Ind. Ct. App. Jan. 25, 2007), in which we reversed the trial court’s grant of Swami’s motion for relief from judgment. We grant Swami’s petition for the sole purpose of clarifying the basis for our decision but affirm our decision in all respects.In Michael W. Thomas v. Salin Bank and Trust Company (NFP), a 10-page opinion, Judge Crone writes:In our memorandum decision, we determined that Swami’s claim that the auditor failed to provide constitutionally adequate notice to Swami of a tax sale and issuance of the tax deed was available at the time of the underlying litigation, and therefore Swami was barred by the doctrine of res judicata from presenting this argument in its motion for relief from judgment. * * *
Simply put, Swami had an opportunity to present a claim that the auditor’s notice failed to comply with constitutional due process in the underlying litigation and chose not to pursue that line of argument; Swami may not take a second bite at the apple. We affirm our original decision in all respects.
Michael W. Thomas appeals a summary judgment award of $122,492.92 to Salin Bank and Trust Company (“Salin Bank”). We reverse and remand.In Eli Lilly and Company and Mark Hughes v. Charles Green (NFP), an 11-page, 2-1 opinion, Judge Friedlander writes:We re-state the issues as follows: I. Whether the trial court erroneously concluded that Thomas waived the argument that his liability was limited to fifty percent of the principal debtor’s indebtedness due to Salin Bank; and II. Whether the trial court erroneously interpreted Thomas’s Third Commercial Guaranty when calculating the damage award.
Eli Lilly and Company and Mark Hughes (collectively Appellants) appeal the trial court’s denial of their motion for summary judgment on Charles Green’s intentional infliction of emotional distress claim. Appellants raise the following restated issue: Did the trial court properly deny Appellants’ motion for summary judgment on Green’s intentional infliction of emotional distress claim? We reverse. * * *NFP criminal opinions today (4):Appellants contend that they are entitled to summary judgment on Green’s intentional infliction of emotional distress claim because no genuine issues of material fact exist about whether Hughes’ conduct was extreme or outrageous. “Liability for intentional infliction of emotional distress is found only if there is extreme and outrageous conduct.” Bradley v. Hall, 720 N.E.2d 747, 752 (Ind. Ct. App. 1999). * * *
Hughes’s conduct is not of the same nature as that seen in Bradley. Hughes’s comments did not concern personal aspects of Green’s life, his relatives, or his physical attributes. Instead, they centered on work-related matters. Additionally, Hughes’s comments were not sexually explicit and did not use profane language. Therefore, Bradley is distinguishable. * * *
We conclude as a matter of law that Hughes’s conduct does not constitute extreme or outrageous behavior sufficient to support a claim for intentional infliction of emotional distress. Therefore, the trial court erred in denying Appellants’ motion for summary judgment on Green’s intentional infliction of emotional distress claim. Judgment reversed.
MATHIAS, J., concurs.
ROBB, J., dissents with separate opinion. [that begins] I respectfully dissent. I acknowledge that the conduct in this case is not of the same nature as that in Bradley. However, I believe at least as important as the nature of the conduct is the range and frequency of the conduct.
Richard Canterbury v. State of Indiana (NFP)
Joshua Steelsmith v. State of Indiana (NFP)
Oliver H. Williams v. State of Indiana (NFP)
Derek L. Carter v. State of Indiana (NFP)
Posted by Marcia Oddi on April 1, 2008 12:57 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Supreme Court decides two today
In Michelle Gauvin v. State of Indiana, an 11-page, 4-1 opinion, in a case argued Nov. 14, 2007, Chief Justice Shepard writes:
Appellant Michelle Gauvin pled guilty to the confinement, neglect, and murder of her four-year-old stepdaughter. The trial court imposed life without parole.In Virginia Hartman and Suzanne Swinehart v. Dr. Gabe Keri, a 12-page opinion, in a case argued Nov. 24, 2007, Justice Boehm writes:Gauvin’s sentence rests in part on a finding that she tortured the child. Gauvin contends she was correcting the child’s misbehavior. Parental supervision is crucial to rearing children, but the duration and severity of the pain and suffering Michelle’s stepdaughter endured adequately established torture as an aggravating circumstance.
Gauvin also claims that her sentence is inappropriate. We affirm. * * *
Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., dissents with separate opinion [which begins] I respect the analysis of Michelle’s sentence by the trial court and my colleagues and agree with it in many respects. But this Court has never affirmed a sentence of life without possibility of parole for a mother who has pled guilty to killing her child or stepchild and I do not believe we should do so here.
We hold complaints made by a current student pursuant to a university anti-harassment policy are protected by an absolute privilege and cannot serve as the basis for civil liability to a person who is the subject of the complaint. * * *At least three states have held that communications to school authorities raising complaints against educators enjoy the same absolute privilege the law accords to statements in judicial proceedings. * * *
Hartman and Swinehart acted under the procedure Purdue established. Protecting their complaints with anything less than an absolute privilege could chill some legitimate complaints for fear of retaliatory litigation. Other faculty-student disputes would result in traditional litigation rather than academic resolution to avoid any risk of loss of the absolute privilege accorded statements in judicial proceedings. A university should be given the latitude to tailor its processes to the educational environment without degrading the protection the law gives to com-plaints of misconduct in the educational setting. * * *
This case is remanded to the trial court with instructions to grant the defendants’ motion for summary judgment.
Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Rucker, J., concurs in result with separate opinion
Posted by Marcia Oddi on April 1, 2008 12:26 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - More on "McManus returns to death row: State reverses ruling"
The ILB has a long list of entries on Paul M. McManus. The most recent quoted from this June 28, 2007 story by Bryan Corbin of the Evansville Courier & Press that began:
An Evansville man convicted of killing his wife and two children is not mentally retarded and therefore is eligible for the death penalty, the Indiana Supreme Court ruled Tuesday.Today Kate Braser of the C&P reports:The state's highest court overturned a lower-court ruling that had declared Paul M. McManus could not be executed because he met the legal standard for mental retardation.
The U.S. Supreme Court will not hear an appeal from death row inmate Paul McManus.But the decision by the nation's highest court this week does not mark an end to McManus' potential appeals.
Vanderburgh County Prosecutor Stan Levco learned of the decision Monday. He said he was satisfied, but predicted it still will be "many years" until McManus runs out of appeals.
"He does have federal appeals left," Levco said, adding he was not surprised by the court's decision.
"I have thought that is the right decision, but there is still a ways to go," he said.
The decision comes a little more than one year after the Indiana Supreme Court overturned a lower-court ruling that had declared McManus could not be executed because he met the legal standard for mental retardation.
The state court ruled that McManus, of Evansville, is not mentally retarded and therefore is eligible for the death penalty.
Posted by Marcia Oddi on April 1, 2008 09:40 AM
Posted to Ind. Sup.Ct. Decisions
About this blog - 5th birthday of ILB; new supporter signs on
5th Birthday. The Indiana Law Blog had its 5th Birthday on March 16th. To see the first entry you'd have to go back to March 2003 on the Old Blog Site. Starting on January 29, 2004, the ILB moved to the NewBlog Site - the one you are reading now.
High Stats. The ILB quietly made its SiteMeter stats accessible some weeks ago. In addition, check Justia, a site that ranks around 2,000 law blogs. The ILB consistently ranks in the top ten.
Supporters. Many thanks to the Indiana State Bar Association, which signed on as an annual supporter last July 1st. And welcome today, for the start of the 2nd quarter, Doxpop, LLC.
Become an Annual Supporter. Your firm or company can join the list of annual ILB supporters. I hope you will consider doing so, thereby permitting me the time to keep the ILB operating at a consistently high level.
What will be your benefits? Your name listed as a supporter in the right-hand column and on the supporters' page with a link to your site. Exposure to a statewide and national legal readership. The knowledge that you are contributing to an effort that has demonstratively enhanced communication and knowledge, both within the Indiana legal community, and with the general public.Contact me to find out about adding your firm or organization to the list of annual supporters of the Indiana Law Blog.Non-benefits of supporting the ILB. The ILB speaks with an independent voice, supporters have no influence on our editorial judgment.
Individual Donations. Of course, individual donations also are very welcome. Check here for information (donations made via this link are anonymous). Unfortunately, this route has had very limited success - over the years the ILB has received less than $100 total in individual donations!
Posted by Marcia Oddi on April 1, 2008 08:46 AM
Posted to About the Indiana Law Blog
Monday, March 31, 2008
Ind. Decisions - Court of Appeals issues 4 today (and 19 NFP)
For publication opinions today (4):
In Sally Gibbs, et al v. Jack David Kashak, et al , a 9-page opinion, Judge May writes:
Sally Gibbs and Jack David Kashak are siblings and the beneficiaries of their parents’ trusts. Jack served as trustee until he was removed by court order on August 5, 2005. Sally filed suit seeking partition of land held by the trust and damages from Jack for breach of fiduciary duty. Sally wanted the land sold and the proceeds divided. Instead, the trial court ordered the land divided. It also denied Sally’s claim for damages. We affirm. * * *In Wayne House v. First American Title Company, Security Title Services, LLC, et al, an 11-page opinion, Judge May writes:As trustee, Jack had authority and discretion to make disbursements for the education, health, maintenance, and support of the beneficiaries. There is no indication the $65,000, which was drawn over a period of three years, was disproportionate to the beneficiaries’ needs or unnecessarily depleted the trusts, which were worth over $2 million. The trial court made a general judgment on this issue, which we will affirm if it can be sustained on any legal theory supported by the evidence. Estate of Skalka, 751 N.E.2d at 771.5 The foregoing evidence supports a conclusion Jack did not misappropriate or misuse trust funds, and the trial court’s judgment is not erroneous.
Wayne House appeals the dismissal of his complaint against First American Title Company, Security Title Services, and Centex Home Equity Company. We affirm in part, reverse in part, and remand. * * *In Barbara Burcham, Christine Balt, and Crooked Creek Community Council, Inc. v. Metropolitan Board of Zoning Appeals Div. 1 of Marion County, et al , a 19-page opinion, Judge May writes:The trial court properly dismissed House’s claim against Centex and his claim under Ind. Code § 34-24-3-1 against First American. However, the trial court erred by dismissing his claim against Security Title and the remaining claims against First American, and we remand for further proceedings on those claims. Affirmed in part, reversed in part, and remanded.
Crooked Creek Community Council, Inc., appeals the trial court’s affirmation of a zoning variance granted to Celebration Fireworks [to sell fireworks at 5860 North Michigan Road]. On cross-appeal, Celebration and the Metropolitan Board of Zoning Appeals Division I of Marion County (“BZA”) assert we should dismiss this appeal because Crooked Creek does not have standing to challenge a zoning variance. We hold the Appellees waived Crooked Creek’s alleged lack of standing, the trial court did not commit reversible error when it declined Crooked Creek’s request to submit additional evidence, the BZA had authority to modify its 2002 order, and the record supports the grant of the variance. Accordingly, we affirm. * * *Because the evidence in the record supports all five of the statutory findings [necessary to the granting of a variance], we affirm the BZA’s grant of the variance to Celebration.
Richard K. Klaff v. State of Indiana - "Appellant-Defendant Richard K. Klaff challenges his conviction, following a jury trial, for one count of Class C felony Burglary and one count of Class D felony Theft. Klaff specifically contends that the evidence at trial was insufficient to support his conviction. Concluding that the evidence was sufficient, we affirm. * * *
"Here, the evidence establishes not merely that Klaff was at the house, but also that Klaff was an active participant. The recorded images clearly depicted Klaff walking down the stairs carrying a long, thin object, which resembled the eight-foot copper pipe that was later determined to be missing from the house. The recorded images further depicted Klaff walking, with the long thin object, toward the rear of the house where police later found an open window. Even though the recorded images depict Klaff walking out the front door of the house without the object in his hand, a reasonable jury could infer that he slipped the object out the open rear window because the copper pipe was never recovered anywhere in or surrounding the house. We therefore conclude that the evidence establishes that not only was Klaff present at the house, but also that he was an active participant, and thus the evidence may raise a reasonable inference of guilt."
NFP civil opinions today (5):
In Marlene Mattocks v. Larry and Karen Albanese (NFP), a 13-page opinion, Judge Kirsch writes:
Marlene Mattocks, as the Personal Representative of the Estate of Darwin Schultz, (the “Estate”) appeals the trial court’s decision granting judgment in favor of Larry and Karen Albanese (“Albanese”) and denying the Estate’s counterclaim. The Estate raises three issues, which we restate as: I. Whether the trial court erred in awarding Albanese damages and denying the Estate’s counterclaim; II. Whether the trial court abused its discretion when it did not allow several of the Estate’s witnesses to testify based on Indiana’s Dead Man’s Statute; and III. Whether the trial court abused its discretion when it denied the Estate’s request for discovery sanctions. We affirm.Term. of Parent-Child Rel. of S.L.H.S., and Andrew Thompson v. Elkhart County Office of Family & Children (NFP) - Termination, affirmed.
In Brenda and Joseph Ottinger v. Patricia Sawyer and Ashwood I Homeowners' Association (NFP), a 13-page, 2-1 opinion, Judge May writes:
Displeased with a fence built by Brenda and Joseph Ottinger, Patricia Sawyer sued to enforce the Covenants of Ashwood I Subdivision. The Ottingers filed a third party complaint against the Ashwood Homeowners’ Association (“Association”), alleging they had detrimentally relied on a voicemail message from an Association board member when they built the fence. The trial court ordered the Ottingers to reconstruct their fence and pay Sawyer’s attorney fees, and it found the Association was not liable to the Ottingers. We conclude the Ottingers violated the Covenants and did not demonstrate that the voicemail estopped the Association from enforcing the covenants. However, the award of attorney fees to Sawyer is not supported by the record; therefore, we affirm in part and reverse in part. * * *Invol. Term. of Parent-Child Rel. of S.M., and Idowa H. v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - Termination, affirmed.The Ottingers did not comply with the Covenants or the written approval, and they did not establish the elements of promissory or equitable estoppel. Therefore, the Ottingers must reconstruct their fence as ordered by the trial court. However, Sawyer did not support her full request for attorney fees, and the award must be reduced to $6,598.50. Affirmed in part and reversed in part.
RILEY, J., concurs.
KIRSCH, J., dissents, with opinion. [which begins] Do fences make good or bad neighbors?Apparently, in the Ashwood subdivision in Hamilton County, it depends on which way they face. To me, the trial court’s resolution of this dispute between neighbors is a triumph of form over substance, formalism over fairness, and legalism over reasonableness. Accordingly, I respectfully dissent.
April M. Hines v. Timothy A. Hines (NFP) - Dissolution decree, motion to correct errors, "We affirm in part, reverse in part, and remand."
NFP criminal opinions today (14):
Richard L. Joiner v. State of Indiana (NFP)
Josh Griffith v. State of Indiana (NFP)
Nicholas Allen Gaunt v. State of Indiana (NFP)
Lucino Martinez Magno v. State of Indiana (NFP)
Harry Keene v. State of Indiana (NFP)
Ronald E. Rogers v. State of Indiana (NFP)
Miguel Gutierrez v. State of Indiana (NFP)
Rojae Brown v. State of Indiana (NFP)
Scott W. Chappell v. State of Indiana (NFP)
A.L. v. State of Indiana (NFP)
Anthony Cole v. State of Indiana (NFP)
Lolita Harris v. State of Indiana (NFP)
Cordell Laster v. State of Indiana (NFP)
Kathie M. Evans v. State of Indiana (NFP)
Posted by Marcia Oddi on March 31, 2008 12:54 PM
Posted to Ind. App.Ct. Decisions
Law - "Foreclosure Machine Thrives on Woes"
The NY Times had a very long, front-page article Sunday explaining how mortgage servicers and law firms specializing in default have been profiting from the mrotgage crisis. Some quotes:
NOBODY wins when a home enters foreclosure — neither the borrower, who is evicted, nor the lender, who takes a loss when the home is resold. That’s the conventional wisdom, anyway.The reality is very different. Behind the scenes in these dramas, a small army of law firms and default servicing companies, who represent mortgage lenders, have been raking in mounting profits. These little-known firms assess legal fees and a host of other charges, calculate what the borrowers owe and draw up the documents required to remove them from their homes.
As the subprime mortgage crisis has spread, the volume of the business has soared, and firms that handle loan defaults have been the primary beneficiaries. Law firms, paid by the number of motions filed in foreclosure cases, have sometimes issued a flurry of claims without regard for the requirements of bankruptcy law, several judges say.
Much as Wall Street’s mortgage securitization machinery helped to fuel questionable lending across the United States, default, or foreclosure, servicing operations have been compounding the woes of troubled borrowers. Court documents say that some of the largest firms in the industry have repeatedly submitted erroneous affidavits when moving to seize homes and levied improper fees that make it harder for homeowners to get back on track with payments. Consumer lawyers call these operations “foreclosure mills.” * * *
The possibility that some lenders and their representatives are running roughshod over borrowers is of increasing concern to bankruptcy judges overseeing Chapter 13 cases across the country. The United States Trustee Program, a unit of the Justice Department that oversees the integrity of the nation’s bankruptcy courts, is bringing cases against lenders that it says are abusing the bankruptcy system.
Joel B. Rosenthal, a United States bankruptcy judge in the Western District of Massachusetts, wrote in a case last year involving Wells Fargo Bank that rising foreclosures were resulting in greater numbers of lenders that “in their rush to foreclose, haphazardly fail to comply with even the most basic legal requirements of the bankruptcy system.”
Law firms and default servicing operations that process large numbers of cases have made it harder for borrowers to design repayment plans, or workouts, consumer lawyers say. “As I talk to people around the country, they all unanimously state that the foreclosure mills are impediments to loan workouts,” Mr. Maynard said. * * *
A generation ago, home foreclosures were a local business, lawyers say. If a borrower got into trouble, the lender who made the loan was often a nearby bank that held on to the mortgage. That bank would hire a local lawyer to try to work with the borrower; foreclosure proceedings were a last resort.
Now foreclosures are farmed out to third-party processors who hire local counsel to litigate. Lenders negotiate flat-fee arrangements to try to keep legal bills down.
AN unfortunate result, according to several judges, is a drive to increase revenue by filing more motions.
Posted by Marcia Oddi on March 31, 2008 09:54 AM
Posted to General Law Related
Ind. Courts - "Vanderburgh Superior Court gets video arraignment system"
Kate Braser of the Evansville Courier & Press reports today:
Within a couple of weeks, some inmates facing charges in Vanderburgh Superior Court won't have to leave the jail for all court proceedings.That's because courtroom 126A at the county courthouse now is equipped to have hearings transmitted live to and from the Vanderburgh County Jail. The equipment for the video arraignment system was installed in Vanderburgh Superior Court last week.
David Rector, general manager for the Evansville-Vanderburgh County Building Authority, said total cost and installation in both the superior court and at the jail was $71,863.
A similar system was installed for misdemeanor court in July 2006. Vanderburgh County Sheriff Eric Williams said 3,875 defendants were arraigned in misdemeanor court via the video conference system last year.
"We still did 21,058 trips to the courthouse for hearings," Williams said. "But even reducing our transport load by 3,875 is a huge savings for us. Now we will work toward eliminating a percentage of that larger number by using the system for felony pre-charges, bond hearings, progress hearings or just about anything where the trial rules don't require an in-person appearance." * * *
[Vanderburgh Superior Court Judge Robert] Pigman said besides dramatically cutting the number of transports necessary from the jail to the courthouse, the system brings additional benefits.
"One of the side benefits of the video arraignment procedure in misdemeanor court is that with the monitors up, the crowd has been quieter and more sedate, so the whole decorum in the courtroom has improved," Pigman said.
Posted by Marcia Oddi on March 31, 2008 09:37 AM
Posted to Indiana Courts
Ind. Decisions - Upcoming oral arguments this week
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
None scheduled
This week's oral arguments before the Court of Appeals
This Monday, March 31st:
12:30 PM - State of Indiana vs. Anthony Pollard - Pollard is a convicted sex offender who had lived within 1,000 feet of a school property, a youth program center, or a public park for approximately twenty years. Pursuant to Indiana Code section 35-42-4-11, Pollard could no longer reside there. Pollard was charged with violating this statute. He argued that the law was an ex post facto law and unconstitutional. The trial court determined that the statue as applied to Pollard was unconstitutional The Scheduled Panel Members are: Judges Friedlander, Robb and Mathias. [Where: Indiana University Law School-Indianapolis, Wynne Courtroom, Room 100]
Posted by Marcia Oddi on March 31, 2008 09:23 AM
Posted to Upcoming Oral Arguments
Sunday, March 30, 2008
Ind. Courts - More on "Vanderburgh court records move to the Web"
On March 16th the ILB quoted from an Evansville Courier & Press story that began:
After years of planning, Vanderburgh County officials have approved a deal that will make court records available to the public on the Internet.Saturday the same paper had an editorial about resolving the incompatibility between the private company and the state court project. Some quotes:The records should be accessible online by the end of summer.
The deal means people who regularly squeeze into the cramped Room 219 of the Vanderburgh County Courthouse to look up a court record on one of the six public access computers will be able do it from home.
The Richmond, Ind.-based company Doxpop already is providing online records systems for 43 Indiana counties, including Spencer, Warrick, Daviess and Perry.
Anyone who has ever tracked down their Vanderburgh County court records at the Civic Center knows what a hassle it is. Every day, people queue up at Room 219, waiting their turn at one of six public computer terminals where they can look up basic court records. Customers have to squeeze in past a copy machine, the room is stuffy, the old computer system is slow, and the data available — dates, case numbers and brief summaries — is limited. To see actual court documents, you must go to the Clerk's Office and request the case file, assuming it's not checked out.Sound familiar? Yes, the ILB has written about this a number of times before.Unnecessary trips to the Civic Center could be avoided if basic court records were on the Internet — an idea the county has studied for years. Courier & Press staff writer Kate Braser reported that Vanderburgh County now has struck a deal with Doxpop, a private firm that already posts court records online in 43 other Indiana counties.
Unregistered users of Doxpop can search cases by name and number and get basic information for free — something intended for the occasional user of court records.
Subscription plans of between $25 and $450 monthly are available to registered users doing detailed legal research, such as attorneys, paralegals or other professionals.
This comes as Indiana Chief Justice Randall T. Shepard recently unveiled a separate project, through the Judicial Technology and Automation Committee, or JTAC, to link Indiana courts electronically and post their case records online. It relies on a different system, Odyssey, from a different vendor, Tyler Technologies.
Monroe County courts and one court in Marion County are JTAC's pilot-project sites and went "live" in December.
Plans call for expanding it to eight more counties by next year, and Shepard has proposed linking all Indiana courts by 2015.
The problem is, JTAC and Doxpop have not reached accord on how the private firm would be able to interface with the state's new Odyssey system. That means, for the time being anyway, the two systems are incompatible and users could not access Odyssey's court records through Doxpop.
Most Indiana counties have some sort of computerized case management system (CMS) to track records and cases before their courts. This information is public but generally requires, as has been the case in Vanderburgh County, going the courthouse, where either you must make your inquiry through the clerk or, if you are fortunate, there are some computer terminals available to the public in the courthouse.
What Doxpop has done is enter into agreements with a number of counties to link into their local systems and publish the court case information online. As I understand it, the remote access service is free or discounted to the governmental officials, and available to others for a fee. Subscribers may not only access their own county's records, but all the other counties that have agreements with Doxpop. - currently a network of over 40 Indiana counties.
The Indiana Court, through its JTAC Committee, a few years ago began a project to link or network all of Indiana's courts. But rather than build on top of the counties' existing, and varied, case management systems, JTAC decided to replace the county systems, one by one, with its own CMS system. The JTAC project will also link up the systems and publish the information online. The JTAC project, which began in 2003, has moved very slowly. Currently the first pilot projects, Monroe County, and Washington Twp. of Marion County, are in process.
The impasse described in the editorial came about when JTAC replaced the Monroe County case management system with its own CMS and did not authorize Doxpop to transfer its interface to the new CMS. This cut off Doxpop's flow of new information from Monroe County effective Dec. 17, 2007. Effective February 15, 2008, all historical case information was removed from Doxpop.
On Dec. 5, 2007, the Supreme Court adopted an Order titled "In Re the matter of public access to electronic court records under Odyssey case management system." The concluding paragraph:
Commercial vendors seeking access to the data in the Odyssey case management system should direct inquiries to the Division of State Court Administration pursuant to the requirements of the Court's Administrative Rule 9(F).But, as the Evansville editorial makes clear, an accord has not been reached. The editorial continues:
As described by Lilia Judson, executive director of the Division of State Court Administration, it's not a technical issue so much as a policy question: Should a private firm be able to earn a profit off public records that the state itself seeks to make available online for free? (The state project is paid for through court fees and federal grants.)Is this really such a difficult problem? Certain of Monroe County's case information is now available online, free to anyone anywhere who wishes to access it, via the JTAC project,. Presumably this situation would remain the same if private companies were allowed to tap into the new Monroe County CMS.Another issue is competition: While Doxpop is the dominant player in the Indiana market, other software vendors want to offer the service. * * *
The Indiana Supreme Court ought to resolve this dispute — and soon. The justices must do so in a way that ensures basic court records, at least, will be online for free; that the eventual statewide project will be compatible with systems counties already use so that years of effort won't be wasted; and that all private vendors are dealt with fairly while ensuring public access.
Re the question posed in the editorial: "Should a private firm be able to earn a profit off public records that the state itself seeks to make available online for free?" Why not? What is the difference between this situation and the Indiana Opinions, which the Court makes available online to the public, but which private companies such as West Publishing and Lexis also access directly from the Court and publish for their own subscribers in a number of enhanced formats? It is the public itself who will decide whether the free version is adequate to its needs, or whether it needs to purchase West's or Lexis' enhancements.
The same should be the case for Doxpop and any other company wishing to access the data stream from the Monroe County case management system.
Posted by Marcia Oddi on March 30, 2008 05:14 PM
Posted to Indiana Courts
Ind. Decisions - "A madman had his day in court yesterday"
That is the lede to this comment on The Atlantic site about the oral arguments before the SCOTUS March 26th in the case of Indiana v. Edwards/Ahmad Edwards v. State - for background see this ILB entry. The Atlantic's commentary is followed by links to other viewpoints.
[More] See also this article by Linda Greenhouse in the March 27th NY Times, headed "Court Looks at Legal Role for Mentally Ill."
Posted by Marcia Oddi on March 30, 2008 09:55 AM
Posted to Ind. Sup.Ct. Decisions
Saturday, March 29, 2008
Ind. Courts - "Landowner calls move by pipeline company as intimidation"
The ILB has an entry dated June 19, 2006 quoting from a story in the Martinsville Reporter-Times of that date that began: "The path of the proposed Rockies Express Pipeline through Morgan County would cut through the site of a major proposed housing development, possible Interstate 69 construction and across at least three creeks and rivers."
Today Annie Goeller writes in a long story in the Reporter-Times:
Indiana landowners could delay approval and construction of a planned natural gas pipeline if they continue to refuse access to their land for surveys, the pipeline company claims.That delay, which also could stop the company from meeting expected timelines in contracts with future customers and potentially lose money, is one of the main reasons for a lawsuit against 21 property owners throughout the state.
Rockies Express Pipeline Co. has filed a lawsuit in U.S. District Court and is seeking a court order that would allow the company to enter the properties for surveys needed to finalize the pipeline route, which stretches 1,679 miles from Colorado to Ohio.
The company wants immediate access to the properties, a temporary restraining order against the landowners to prevent them from interfering with the surveys, an order directing the U.S. Marshals Service to assist if necessary, and damages, attorney fees, costs and any other relief the court finds appropriate.
Posted by Marcia Oddi on March 29, 2008 04:11 PM
Posted to Indiana Courts
Friday, March 28, 2008
Ind. Law- 2008 US News Law School Rankings now available
Here is a comparative ranking of the four Indiana law schools.
IU-Bloomington, #36; IU-Indianapolis, #68; Notre Dame, #22; Valparaiso, Tier 4 (where schools are listed alphabetically).
Last year's rankings:
IU-Bloomington, #36; IU-Indianapolis, #85; Notre Dame, #28; Valparaiso, Tier 4 (where schools are listed alphabetically).
Looks like IU-Indy has made quite a jump up the rankings!
Posted by Marcia Oddi on March 28, 2008 07:23 PM
Posted to Indiana Law
Ind. Decisions - Transfer list for week ending March 28, 2008 [Updated]
Here is the Indiana Supreme Court's transfer list for the week ending March 28, 2008.
(Note that there are 6 pages to the list this week.)There were 7 transfers granted this week. Six were announced in this ILB entry dated March 24. Here are descriptions of those cases:
In the Matter of J.C.C. - whether the juvenile court erred when it ordered J.C.C. placed on the sex offender registry.The seventh transfer grant is Debra A. Barnett v. Camille Clark, Trustee of Pleasant Township, summarized in this ILB entry from Thursday, March 27th.Richard Wallace v. State - "Appellant-defendant Richard P. Wallace appeals his conviction for Failing to Register as a Sex Offender, a class D felony. Specifically, Wallace argues that the requirement for him to register is an ex post facto law and the State forfeited its right to prosecute him in light of a previous plea agreement that had been negotiated."
Todd Jensen v. State - In a 10-page, 2-1 opinion, the Court rules that "the amendments to Indiana’s Sex Offender Registry as applied to Jensen violate the ex post facto clauses of the federal and state constitutions."
Marla K. Young v. Timothy S. Young - calculation of child support
Anthony Hopkins v. State - "Because the record shows that the trial court did not advise Hopkins of all of his Boykin rights, his plea was thus unknowing and involuntary and must be vacated."
State v. Michael Cozart - "The State argues that the trial court was not required to advise Cozart regarding the effect his prior felony convictions would have on its authority to suspend any portion of the minimum sentence he faced following a guilty plea to a class A felony. Finding that Cozart did not plead guilty knowingly and voluntarily, we affirm the judgment of the post-conviction court."
Over 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 March 28, 2008 03:54 PM
Posted to Indiana Transfer Lists
Ind. Courts - More on Allen County courthouse-wide cell phone ban
Allen County was the first to ban cellphones in the courthouse. A story from June 15, 2007 Fort Wayne Journal Gazette began:
It’s been almost six months since Allen County banned cell phones, cameras, iPods and nearly all other electronic devices from its court facilities.A JG editorial from June 19, 2007 was headed "Hardly a ringing success."Yet, hundreds of people still try to bring them in every day.
“It’s amazing,” Allen Superior Court Chief Judge Fran Gull said. “It’s a little discouraging that we still have this much of a problem this far past (January).
“There’s signs posted everywhere. People seem to think the sign has no applicability to them. It’s very frustrating for court security who get the brunt of people’s complaints. * * *
Gull said she has continued to receive requests for exemptions from doctors, out-of-town visitors, jurors and photographers, but none have been granted.
County judges made the decision to ban most electronic devices, saying cell phones were disruptive and a safety concern when people used them to take pictures and video of jurors, witnesses, victims and attorneys.
Today the JG's Rebecca S. Green reports:
A local attorney and area school board member will not be getting his cell phone back from the Allen County courts.On Wednesday, Allen Superior Court Judge Fran Gull denied a request from attorney John Bloom for the return of his cell phone, confiscated in late January.
Bloom’s cell phone issue is the latest of a few upsets since a ban against electronic devices took effect in the Allen County halls of justice just over a year ago. * * *
In his motion for the return of his cell phone, Bloom said the signs in the Courthouse, which say property unclaimed for 30 days may be destroyed, left a mechanism for him to seek the return of the phone.
Gull scheduled a hearing for earlier this month and Bloom, along with his two attorneys, argued he should be able to get his phone back, sparing its destruction along with other confiscated devices.
In her ruling Wednesday, Gull quoted from Bloom’s testimony during the hearing.
He said he found the court’s cell phone ban appropriate and wondered whether it was even necessary for attorneys to have their phones in the building, according to court documents.
Gull wrote that, should she give Bloom his phone back, it would be “patently unfair” to the others who had had their property confiscated and destroyed and would be unfair to attorneys who had already complied with the January 2007 court order banning phones, according to court documents.
She ordered the phone destroyed.
Posted by Marcia Oddi on March 28, 2008 02:09 PM
Posted to Indiana Courts
Ind. Decisions - Court of Appeals issues 0 today (and 10 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
Caroletta H. and Stephen T. v. Howard County Department of Child Services (NFP) - "In sum, we conclude that the alleged procedural irregularities in the underlying CHINS proceedings did not serve to deprive Mother and Father of the process that was due them in the termination proceedings. Additionally, clear and convincing evidence supports the trial court’s judgment terminating the parents’ parental rights to D.H. and G.T. Accordingly, we find no error."
Julia Darnell v. John Darnell, Larry Stassin and Sachs & Hess, P.C. (NFP) - "Appellant-Plaintiff Julia Darnell (“Julia”) appeals a grant of summary judgment in favor of attorney Larry Stassin (“Stassin”) and law firm Sachs & Hess, P.C., upon Julia’s tortious infliction of emotional distress claim arising out of a custody dispute with her former husband, John Darnell (“John”). We affirm. * * *
"Inasmuch as Stassin and Sachs & Hess, P.C. established that Stassin acted with immunity and negated the outrageousness element of Julia’s claim, they have demonstrated their entitlement to judgment as a matter of law. Summary judgment was properly granted to Stassin and Sachs & Hess, P.C."
NFP criminal opinions today (8):
Thomas Hollowell v. State of Indiana (NFP)
Marvin E. McGraw v. State of Indiana (NFP)
Floyd Merrell v. State of Indiana (NFP)
Raymond Wiefling v. State of Indiana (NFP)
Rockie L. Jernigan v. State of Indiana (NFP)
Thomas Burzynski v. State of Indiana (NFP)
Dwayne Kelly v. State of Indiana (NFP)
Alfredo C. Botello v. State of Indiana (NFP)
Posted by Marcia Oddi on March 28, 2008 01:52 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "Muncie judge calls it quits"
Rick Yencer and Nick Werner of the Muncie Star-Press report today:
Judge Wayne Lennington has resigned from the Delaware Circuit Court 5 bench, effective May 15, in the wake of a probe by a state commission that oversees judicial conduct, and a criminal investigation by local and state authorities.A list of earlier ILB entries about Judge Lennington may be found here.Lennington submitted his letter of resignation to Gov. Mitch Daniels -- who will select his successor -- on Tuesday.
On Thursday, the 77-year-old judge said he was leaving the bench as a result of health problems.
"It should not be suggested that I resigned because of the investigation," said Lennington, a Democrat appointed to the bench in 1998 by then-Gov. Frank O'Bannon.The Indiana Judicial Qualifications Commission has been investigating alleged conflicts between Lennington's business interests and judicial obligations, commission counsel Meg Babcock confirmed on Thursday.
"The commission and judge reached an agreement that a prompt resignation was in the best interest of the judiciary," said Babcock.
Whether Lennington committed any misconduct was never determined because the investigation was suspended once Lennington agreed to resign, Babcock said.
The commission was fully prepared to move through the investigation, and if warranted, to a long proceeding that could have resulted in the judge's removal from office, she added.
"Instead, he agreed to resign," Babcock said. "It's the perfect outcome for the Delaware County courts and its public."
After being informed that Lennington had said he was leaving the bench for health reasons, the commission provided The Star Press with a copy of its signed agreement with the judge.
"Judge Lennington will make no public statements misrepresenting the status of the commission's investigation, of the criminal investigation or of the terms of the commission's agreement," the agreement stated.
A second story today reports on how a successor will be selected.
Posted by Marcia Oddi on March 28, 2008 08:02 AM
Posted to Indiana Courts
Ind. Gov't. - Even more on "Storm Water Board resigns: Council criticized no-bid contract"
Updating this ILB entry from Dec. 4, 2007, Dick Kaukas of the Louisville Courier Journal reports today in a story that begins:
A lawsuit filed by the New Albany City Council challenging two contracts awarded last year without competitive bidding has been dismissed.The council has struggled with the no-bid issue, first authorizing the lawsuit and then voting to end it, but reversing itself again in February and deciding to pursue the case.
Both contracts were awarded last summer to Environmental Management Corp. by the city's sewer and storm-water boards to operate New Albany's sewer and storm-water systems.
In a decision issued Wednesday, Floyd Circuit Judge J. Terrence Cody wrote that he was granting motions asking that the complaint be thrown out. Cody said the contracts did not have to be bid under state law because they were for "professional and technical services," not for a "public work" project.
Only for such a project would competitive bidding have been required, the judge concluded.
In reaching that conclusion, Cody adopted the arguments of sewer board lawyer Greg Fifer and storm-water board lawyer Michael Summers, and rejected the contentions of Jerry Ulrich, the council's attorney.
"I'm a bit surprised and disappointed," said Ulrich, who had argued that the contracts were for public works projects.
Posted by Marcia Oddi on March 28, 2008 07:56 AM
Posted to Indiana Government
Thursday, March 27, 2008
Ind. Courts - Still more on: David Camm appeal brief filed with the Supreme Court
Updating this ILB entry from Feb. 13th reporting that both the appeal brief and the response had been filed with the Supreme Court, a brief item this evening from Louisville WAVE 3 News reports:
WAVE 3 News has learned there are new developments in the murder case invovling David Camm. The Indiana Supreme Court has decided to hear arguments in the case.
Camm has been convicted twice in the September 2000 murders of his two kids and wife.The Supreme Court will hear the oral arguments May 22nd at 9 a.m. in Indianapolis.
Posted by Marcia Oddi on March 27, 2008 06:36 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Another case granted transfer since the last list was posted
Although there was no transfer list issued last week, the ILB has just received a notice of transfer granted by the Supreme Court today. Here is the ILB summary of the COA opinion from Dec. 11, 2007:
Debra A. Barnett v. Camille Clark, Trustee of Pleasant Township - "Debra A. Barnett asserts Camelia Clark, as Pleasant Township Trustee, is vicariously liable for the sexual misconduct of her employee, Donald Clark. Barnett appeals from summary judgment for Camelia. Finding an issue of fact exists, we reverse and remand. * * *"Like the equipment manager, Donald used his official duties to create an opportunity to be alone with the object of his sexual misconduct. Donald did more than create a pretext for being alone with Debra; he was performing his duties before and after his misconduct. Therefore, whether Donald was acting in the scope of his employment is an issue of fact, and it was error to grant summary judgment for Camelia. Reversed and remanded."
Posted by Marcia Oddi on March 27, 2008 06:30 PM
Posted to Indiana Transfer Lists
Ind. Decisions - Federal court dismisses employee suit against Indianapolis Star
Interesting reading for those of you interested in the inner-workings of the Star, this case has been pending for several years, but the ILB cannot find that it has posted previous entries on it, although it has heard a lot about it.
In James Patterson and Lisa M. Coffey v. Indiana Newspapers, Inc., a 29-page opinion, Judge McKinney grants the Star's motion for summary judgment:
This cause is before the Court on Defendants’, Indiana Newspapers, Inc., an Indiana corporation, publisher of The Indianapolis Star, owned by Gannett Co., Inc., a foreign corporation (“THE STAR”), motion for summary judgment (Docket No. 90). Plaintiffs, James Patterson (“Patterson”) and Lisa M. Coffey (“Coffey”) (Patterson and Coffey collectively, “Plaintiffs”) brought this lawsuit against THE STAR alleging violations of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), and state law. More specifically, Patterson claims that THE STAR (1) discriminated against him because of his religion, race, and age; (2) unlawfully retaliated against him for filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”); and (3) negligently inflicted emotional distress. Coffey claims that THE STAR (1) discriminated against her because of her religion; (2) constructively discharged her by creating and maintaining difficult working conditions; and (3) negligently inflicting emotional distress. The summary judgment motion has been fully briefed and is now ripe for ruling.For the reasons stated herein, THE STAR’s motion for summary judgment is GRANTED.
Posted by Marcia Oddi on March 27, 2008 06:14 PM
Posted to Ind Fed D.Ct. Decisions
Law - "Loan repayment assistance programs progress"
From a February article in the ABA's "Your ABA":
The House of Representatives passed its version of the Higher Education Act on Feb. 7, which includes two critical programs designed to ease the burden of student loan debt for prosecutors, public defenders, as well as for legal aid lawyers.The first of these measures, The John R. Justice Prosecutor and Defender Incentive Program, provides for $10,000, up to a maximum amount of $60,000, in student loan debt forgiveness per year in exchange for a commitment of at least three years of qualifying service.
A second HEA provision will provide $6,000 per year, up to a maximum of $40,000, of student loan debt forgiveness for legal aid lawyers with three years of service.
Since the Senate-passed version of the HEA is slightly different, a conference committee will meet to iron out differences. The ABA is hopeful that this will occur soon and the legislation will be signed by the President before March 31, when the current HEA extension expires.
Posted by Marcia Oddi on March 27, 2008 04:48 PM
Posted to General Law Related
Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP), including an appeal lost in the Clerk's office for two years
For publication opinions today (1):
In Karen Berry Williams v. State of Indiana, a 9-page opinion, Chief Judge Baker writes:
Appellant-defendant Karen R. Berry Williams appeals the revocation of her probation, claiming that the trial court’s failure to advise her that an admission of guilt to a violation of the Shelby County Adult Day Reporting Program (ADRP) rules could also constitute a basis for a probation revocation. Williams further claims that the trial court allegedly failed to consider certain mitigating evidence regarding her sentence and that her counsel was ineffective because he failed to advise Williams that her admission to the ADRP violation would also constitute an admission to the probation violation. Finally, Williams contends that she received the ineffective assistance of counsel because her attorney failed to specifically set forth mitigating circumstances for the trial court to consider in imposing the sentence on the probation violation. Finding no error, we affirm the judgment of the trial court.This follows upon the ILB entry from March 20th and is the fourth such case that has surfaced. How many more are there? CJ Baker instructs that after your appeal has been fully briefed, check that it has in fact been transmitted to the judges (rather than simply assuming that the court is taking a long time to act on it).
_________
Ftnote 1. As we pointed out in Gilbert v. State, 874 N.E.2d 1015, n.1 (Ind. Ct. App. 2007), we have recently become aware of some difficulties in receiving the prompt transmission of fully-briefed appeals to our court. The case herein was fully briefed on March 28, 2006 but was not transferred to our court until February 18, 2008.The Clerk of the Court has assured us that a new system and periodic inventory review program have been implemented to minimize future delays. In the event of an extraordinary delay—such as what has occurred here—it may be helpful for counsel to make inquiry with the Clerk’s office regarding the status of the case. Additionally, a link to the Clerk’s online docket is available at http://www.in.gov/judiciary/cofc/ and counsel may check the docket to confirm that the case has, in fact, been transmitted to this court after being fully briefed.
NFP civil opinions today (1):
Jodie Patrick v. Brian Patrick (NFP) - "Jodie R. Patrick (“Mother”) appeals the order of the Knox Superior Court granting the petition of Brian T. Patrick (“Father”) to modify custody of the Patricks’ child, B.P. On appeal, Mother claims that the trial court abused its discretion in modifying custody based upon Mother’s plan to move out of state. We affirm."
NFP criminal opinions today (2):
Joshua Jones v. State of Indiana (NFP)
Darrell L. Hall v. State of Indiana (NFP)
Posted by Marcia Oddi on March 27, 2008 01:47 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Supreme Court rules on restitution and ability to pay
In Jeffrey Pearson v. State of Indiana, a 6-page, 5-0 opinion, Justice Rucker writes:
When a trial court orders restitution either as a condition of probation or as a condition of a suspended sentence, it is required to inquire into the defendant’s ability to pay. Although the trial court did not make such an inquiry in this case, we nonetheless affirm its judgment because the defendant did not raise his inability to pay restitution as an issue on appeal. * * *Thus, “when restitution is ordered as a condition of probation or a suspended sentence, the trial court must inquire into the defendant’s ability to pay in order to prevent indigent defendants from being imprisoned because of their inability to pay.” Ladd v. State, 710 N.E.2d 188, 192 (Ind. Ct. App. 1999) (emphasis added). In the case before us the trial court made no such inquiry. However, for reasons explained below we disagree with our colleagues on the Court of Appeals that this matter should be remanded to the trial court. * * *
The expiration of Pearson’s one-year probationary term does not terminate his obligation to pay restitution. And because Pearson does challenge the amount of restitution or his ability to pay $150.00 per month in discharge of his obligation, there is no need to remand this cause to the trial court. Conclusion We affirm the judgment of the trial court.
Posted by Marcia Oddi on March 27, 2008 01:35 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - One Indiana decision today from 7th Circuit
In U.S. v. Price (ND Ind., Judge Simon), a 16-page opinion, Judge Wood writes:
When Officer Terry Smith of the Gary, Indiana, police department responded to a call on June 28, 2003, about fires that people were setting in alleys located in a high-crime area, he stopped to question Veronica Sanchez, whose car was parked nearby. As Officer Smith spoke with Sanchez, Benjamin Price strolled past him, said nothing, and sat down in the passenger side of Sanchez’s car. It was not long before Smith and another officer discovered a gun in the car, near Price’s feet. In due course, Price was indicted on charges of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e)(1). After a number of false starts, which we describe below, he was tried, convicted by a jury, and sentenced to 250 months in prison. Appointed counsel on appeal have raised a number of challenges both to his conviction and to his sentence. While we appreciate their efforts, we find no reversible error and thus we affirm.
Posted by Marcia Oddi on March 27, 2008 01:29 PM
Posted to Ind. (7th Cir.) Decisions
Law - "Rising toll revives helmet issue"
The Indianapolis Star has a story today by John Yaukey and Robert Benincasa of Gannett News Service reporting:
WASHINGTON -- Death rates from motorcycle crashes have risen steadily since states began weakening helmet laws about a decade ago, according to a Gannett News Service analysis of federal accident reports.A sidebar notes:As deaths have increased, so has the proportion of older riders killed. Dying on a motorcycle could soon become a predominantly middle-aged phenomenon, the GNS analysis shows.
AdvertisementMost states once required all motorcycle riders to wear helmets. But a trend in the other direction began accelerating after 1995, when the federal government decided to stop withholding highway money from states without helmet laws.
As states weakened or repealed the laws, the percentage of riders who wore helmets began dropping. And fatality rates increased. * * *
Under Indiana law, people younger than 18 or who have a learner's permit are required to wear a helmet if they operate a motorcycle. But the mandatory helmet law for adults, introduced in 1967, was repealed in 1977.
Two decades ago, 47 states required helmets for all riders. Today, only 20 do. Twenty-seven states require helmets only for younger riders.
Posted by Marcia Oddi on March 27, 2008 12:22 PM
Posted to General Law Related
Ind. Law - More on: "Booksellers incensed over sexual content law"
Updating this ILB entry from March 28th quoting from an Indianapolis Star story, the Star today has an editorial criticizing the new law.
Posted by Marcia Oddi on March 27, 2008 12:18 PM
Posted to Indiana Law
Ind. Decisions - Even more on: SCOTUS to hear second Indiana case
This ILB entry yesterday gave some early reaction to oral arguments heard yesterday by the SCOTUS in the Indiana case of Ahmad Edwards v. State. There are many stories today, including: "Court hears Ind. self-representation case," reported by Maureen Groppe, IndyStar Washington Bureau; and "The rights of the Mentally Ill: High Court Weighs Self-Representation," reported by Robert Barnes of the Washington Post.
Posted by Marcia Oddi on March 27, 2008 10:40 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Gov't. - Wondering if you can vote in the Democratic primary? [Updated]
Indianapolis Star columnist Andrea Neal had a column yesterday pointing out that Indiana is an open primary state and describing the worst that can happen if you go to the poll this May and declare yourself as a Democrat when the voting book shows you with a long string of Republican ballots requested in the past. Or vice versa.
She doesn't cite the applicable statutes, however, as this is not a legal article. Can someone help out?
[More] OK, here is the section re challenging a voter at a primary election - IC 3-10-1-9
Sec. 9. A voter in a precinct may challenge a voter or person who offers to vote at a primary election. The challenged person may not vote unless the challenged person:(1) is registered;
(2) makes:
(A) an oral or a written affirmation under IC 3-10-12; or(3) either:
(B) an affidavit:(i) that the challenged person is a voter of the precinct; or
(ii) required under IC 3-10-11 if the voter declares that the voter is entitled to vote under IC 3-10-11; and(A) at the last general election voted for a majority of the regular nominees of the political party for whose candidates the challenged person proposes to vote in the primary election and intends to vote for the regular nominees of the political party at the next general election; or
(B) if the challenged person did not vote at the last general election, intends to vote at the next general election for a majority of the regular nominees of the political party holding the primary election.
As added by P.L.5-1986, SEC.6. Amended by P.L.17-1993, SEC.9; P.L.12-1995, SEC.62.
Posted by Marcia Oddi on March 27, 2008 10:32 AM
Posted to Indiana Government
Law - More on: NYT reporter Linda Greenhouse may move on
Updating this Feb. 29 ILB entry quoting an AP story that "Linda Greenhouse, who has covered the Supreme Court for The New York Times for 30 years, said Wednesday that she has accepted a buyout package from the newspaper" -- A reader has pointed me to this press release quoted in Poynter Online headed "Linda Greenhouse Returning To Yale Law School in 2009 as Journalist-in-Residence." It begins:
Linda Greenhouse '78 M.S.L., Pulitzer Prize-winning legal writer and Supreme Court reporter for The New York Times for the past three decades, will return to Yale Law School in January 2009 as the Knight Distinguished Journalist-in-Residence and Joseph M. Goldstein Senior Fellow. In that capacity, she will advise on the framing and development of the new Yale Law School Law and Media Program (LAMP), work on her own research about the Supreme Court and constitutional law, teach through lectures and seminars, and participate in various Law School activities, including Yale Law School's Supreme Court Clinic.
Posted by Marcia Oddi on March 27, 2008 10:25 AM
Posted to General Law Related
Wednesday, March 26, 2008
Ind. Courts - Dillinger movie shot at Wisconsin locations representing Indiana courtrooms
From a long story today in the Madison Wisconsin Captial Times, this tidbit:
"I ended up being smack-dab in the middle of the courtroom," she said. [Former court reporter Ellen] Weisling was one of seven people in the scene, which also included a heavily guarded Depp as Dillinger as well as some real-life Wisconsin National Guard members dressed as Indiana National Guardsmen from the 1930s. Although much of the film is being shot in Wisconsin, including a bank robbery in Columbus, the locations are supposed to represent a bank robbery and the subsequent court appearances in Indiana.[Update] However, filming was done at the old Lake County jail in Crown Point, site of Dillinger's escape.Weisling said she was impressed by the meticulous detail paid by the film's director, University of Wisconsin graduate Michael Mann, and his crew.
"The attention to detail was phenomenal," she said. "It's so '30s I looked like my mom."
Posted by Marcia Oddi on March 26, 2008 03:40 PM
Posted to Indiana Courts
Ind. Decisions - Still more on: SCOTUS to hear second Indiana case
The SCOTUS heard oral arguments this morning in the Indiana case of Ahmad Edwards v. State. (For background, start with this ILB entry from March 22nd.)
Read Joan Biskupic's USA TODAY coverage here. The lengthy story begins:
WASHINGTON — Indiana Solicitor General Thomas Fisher Wednesday urged the Supreme Court to allow judges to bar confused and incoherent defendants from representing themselves to keep a trial "from descending into a farce."The Blog of Legal Times's report includes this:In a case closely watched by numerous states, defense lawyers and psychiatric experts, Fisher asked the justices to reverse an Indiana ruling throwing out a defendant's attempted-murder conviction because he was denied his Sixth Amendment right to represent himself.
A majority of the nine justices appeared open to arguments that a mentally ill defendant who is found competent to stand trial but is not able to communicate clearly could be kept from representing himself.
When Indiana Solicitor General Thomas Fisher suggested a test that would allow judges to bar self-representation for those who "cannot communicate coherently with the court or jury," Justice Antonin Scalia could not resist the bait. Casting his eyes toward the Court's coffered ceiling, Scalia mulled the phrase. "Cannot communicate coherently?... I sometimes think that the lawyers cannot communicate coherently." Ba da boom. Spectators laughed. How often do the justices get to tell lawyer jokes?
Posted by Marcia Oddi on March 26, 2008 03:31 PM
Posted to Ind. Sup.Ct. Decisions
Courts - "Eli Lilly Pays $15 Million to Settle State of Alaska's Lawsuit Over Drug Zyprexa"
From the AP, a story that begins:
Eli Lilly and Co. and Alaska announced a $15 million settlement Wednesday in the state's lawsuit over the use of the drug Zyprexa in its Medicaid program.Tom Spaulding of the Indianapolis Star has a story here.The deal ensures that Alaska will be treated as well as any other state that may settle with Lilly over similar claims involving the drug, which is used to treat schizophrenia and bipolar disorder.
The agreement included no admission of wrongdoing by Lilly.
The state sued for hundreds of millions of dollars to cover costs to Medicaid for treating what it says are Zyprexa-related health problems, including weight gain, high blood sugar and diabetes.
The settlement ended a case in which jurors began hearing testimony on March 6. Lilly attorneys got a sense of the challenges they faced earlier this month.
Anchorage Superior Court Judge Mark Rindner said on the bench, without jurors present, that without lawsuits like the one the state of Alaska brought, claims that drugs cause health problems "might well go unaddressed."
Posted by Marcia Oddi on March 26, 2008 03:04 PM
Posted to Courts in general
Ind. Decisions - Court of Appeals issues 1 today (and 12 NFP)
For publication opinions today (1):
In Jaimen Scruggs v. State of Indiana , a 6-page opinion, Judge Najam writes:
Jaimen Scruggs appeals her conviction for Neglect of a Dependent, as a Class A misdemeanor, following a bench trial. She presents a single issue for our review, namely, whether the State presented sufficient evidence to support her conviction. We reverse. * * *NFP civil opinions today (2):A conviction on the scant evidence presented in this case would amount to a per se rule that merely leaving a seven-year-old child home alone for any period of time constitutes neglect of a dependent, as a Class D felony. We do not read the statute and relevant case law to support that result. * * * We agree with the trial court that this is a close case, but the State bore the risk of nonpersuasion and has failed to prove the mens rea element of the crime.
Sharon McLavey-Ford v. Gary W. Ford (NFP) - "Sharon McLavey-Ford (“Wife”) appeals from the trial court’s order (“Order”) denying her motions to set aside a property settlement agreement without a hearing." Affirmed.
Edmund W. Ade v. Joann C. Ade (NFP) - "Edmund Ade (“Husband”) appeals from the trial court’s dissolution decree which ended his marriage to JoAnn Ade (“Wife”)." Affirmed.
NFP criminal opinions today (10):
Rageing Warr v. State of Indiana (NFP)
Edgar Hernandez v. State of Indiana (NFP)
Jason Lynn v. State of Indiana (NFP)
Robert Deshawn McCollum v. State of Indiana (NFP)
John David Haddix v. State of Indiana (NFP)
Raylon Young v. State of Indiana (NFP)
Lamont Darion Taylor v. State of Indiana (NFP)
Otis L. Reed v. State of Indiana (NFP)
Joseph C. Jenkins, Jr. v. State of Indiana (NFP)
George Leachman v. State of Indiana (NFP)
Posted by Marcia Oddi on March 26, 2008 01:10 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Supreme Court holds "that the exception recognized in footnote 4 of Cavinder Elevators, Inc. v. Hall, applies to permit the defendants to raise that issue on appeal"
In Homeq Servicing Corp. v. Bradley and Constance Baker, a 6-page, 5-0 opinion, Justice Dickson writes:
In this appeal, we address two issues. First, we hold that cross-error is available to appeal issues presented in a motion to correct error that is belatedly granted contrary to the "deemed denied" provisions of Ind. Trial Rule 53.3(A). Second, we hold that a trial court may not consider untimely filed materials opposing summary judgment. * * *Conclusion The defendants do not dispute the plaintiff's claim that the defendants' motion to correct error challenging the grant of summary judgment was deemed denied pursuant to T.R. 53.3(A), but the defendants correctly assert that they are entitled to challenge by cross-appeal the summary judgment entered without consideration of the defendants' untimely opposing affidavit. Considering that claim, we conclude that the trial court correctly excluded the untimely affidavit, and we affirm the grant of the plaintiff's motion for summary judgment and remand for entry of judgment consistent with this opinion.
Posted by Marcia Oddi on March 26, 2008 12:57 PM
Posted to Ind. Sup.Ct. Decisions
Environment - More on: Environment - "Huntington County dairy coming under new management"
Updating this ILB entry from Monday, March 24, which quoted an IDEM press release, Niki Kelly reports today in the Fort Wayne Journal Gazette:
There is good news and possible bad news for neighbors who have been fighting with the troubled DeGroot Dairy in rural Huntington County.For a history of Vreba-Hoff dealings with the IDEM Office of Enforcement, go to this link, type "vreba" in the company name box, and change the start date to Jan. 1, 1995.Owner Johannes DeGroot and DeGroot Dairy LLC are barred from operating animal feeding operations in Indiana through 2048 under an agreement with the Indiana Department of Environmental Management.
But the new operator – Ohio-based Vreba-Hoff Dairy Development LLC – has had regulatory skirmishes in other states and plan to nearly double the herd size of the Huntington farm to pay for improvements. * * *
As part of the agreement, DeGroot agrees to sell the dairy operation to Vreba-Hoff and allows Vreba-Hoff to take immediate responsibility for daily operations.
With Vreba-Hoff’s help, almost 50 Dutch families have set up dairy farms in Michigan, Indiana and Ohio over the past decade.
According to a Washington Post report from August, Vreba-Hoff and many of its dairies have clashed with state regulators and residents. People complain of an overpowering stench and environmental pollution from the dairies, which generally house several thousand cows in what are known as concentrated animal feeding operations and produce hundreds of thousands of gallons of manure each day.
The Environmental Protection Agency released a report in January 2007 that cited a former Vreba-Hoff-owned dairy near Fremont for violations of numerous environmental standards, including allowing illegal waste discharges. Vreba-Hoff sold the 39-acre, 900-cattle dairy farm to DeJong Dairy LLC, 5409 E. Ray Clark Road, in December 2004.
And the Michigan Department of Environmental Quality has been in a legal tug of war with Vreba-Hoff for several years, filing a lawsuit in 2003 that resulted in a 2004 consent decree in which the company agreed to build an on-site waste treatment facility. Last year, the department asked a judge to hold the company in contempt of court for violating the decree, asserting that Vreba-Hoff was still failing to correctly dispose of manure.
But Barry Sneed, public information officer with IDEM, said Vreba-Hoff is in good standing in Indiana. It owns two facilities in the state and is associated with 24 others.
“We haven’t had problems with the new owner, and the new owner will fix problems that are there,” Sneed said. “Any time we can bring a facility into compliance and have future compliance as well, that’s kind of a win-win for us.”
IDEM is reviewing a new permit application for construction projects at the dairy as well as a request for expansion. The facility will operate under the new name Andrews Dairy LLC.
Lindsey said as an adjoining landowner he already received information that Vreba-Hoff wants to expand the herd size from 1,400 to 2,500. * * *
Vreba-Hoff spokeswoman Cecilia Conway said the additional 1,100 cows are needed to finance all the improvements that are planned, including a new anaerobic treatment process.
“We want to improve the design of the facility and incorporate some new manure-handling technology,” she said. “We are trying to calm the concerns of the locals and put the farm under better management.”
Conway said Vreba-Hoff will operate the farm and eventually own it.
Posted by Marcia Oddi on March 26, 2008 11:44 AM
Posted to Environment
Ind. Law - "Booksellers incensed over sexual content law"
Tim Evans reports today in the Indianapolis Star on a law passed by the General Assembly and signed by the Governor that oddly the ILB has not seen mention of before, either in the press or by those opposed to it. Some quotes:
A new state law that requires sellers of adult material to register with the state has Hoosier bookstore owners fuming about government censorship and threatening a legal challenge.The bill does not provide that it applies only to counties without zoning. Further, it appears that any new book or other item meeting the definition of the statute, offered by an existing business after June 30, would bring it under the statute."This lumps us in with businesses that sell things that you can't even mention in a family newspaper," said Ernie Ford, owner of Fine Print Book Store in Greencastle.
AdvertisementFord was talking about House Enrolled Act 1042, which Gov. Mitch Daniels signed into law last week. Ford was one of 15 independent Indiana booksellers who signed a letter last week urging Daniels to veto the legislation.
The new law that takes effect July 1 requires businesses that sell sexually explicit material to pay a $250 fee and register with the secretary of state, which would then pass the information to municipal or county officials so they can monitor the businesses for potential violations of local ordinances.
The bill was aimed specifically at helping counties that do not have zoning ordinances track businesses selling sexually explicit material, including videos, magazines and books, said Sen. Brent Steele, R-Bedford, who was a co-sponsor of the legislation.
Steele said the bill's author, Rep. Terry Goodin, D-Austin, was targeting adult stores popping up in rural areas along interstates in Southern Indiana. Goodin could not be reached Tuesday for comment.
Jane Jankowski, the governor's spokeswoman, said in a statement issued Tuesday that Daniels' office has no record of receiving the letter from booksellers. * * *
Steele said he believes bookstore owners are getting worked up over nothing.
The law does not apply to businesses that sell sexually explicit material on or before June 30; it applies only to new businesses, those that relocate or businesses that begin offering such material after that date.
"I just don't think that their concern is legitimate," Steele said.
See also this entry this morning by Gary Welsh of Advance Indiana.
Posted by Marcia Oddi on March 26, 2008 10:19 AM
Posted to Indiana Law
Tuesday, March 25, 2008
Courts - More on: Oklahoma Supreme Court "cuts off online access to records"
Updating this ILB entry from March 12th, John Greiner of The Oklahoman reports today:
The Oklahoma Supreme Court today rescinded its controversial rules that would limit public access to court information on its Web site and in court files, saying it wanted to give the issue further study and consideration.The rule change was heavily criticized after the court issued the new rules March 11. * * *
Criticism and concerns voiced by people about those rules apparently played a role in the court's decision to rescind them.
In a brief statement, the Supreme Court said:
"The Supreme Court of Oklahoma is very aware of privacy and identity theft concerns of individuals related to personal data that may appear on the Court's Web site. We are cognizant that many businesses and individuals rely on the information court clerks have placed on our Web site. Personal privacy balanced with reliable public information is critical for every free society.
"Due to the very important issues for all concerned, the Supreme Court is hereby withdrawing its Privacy and Public Access order... handed down March 11, 2008, to give the issue further study and consideration." Free-speech advocates praised the court's decision to reverse course.
“We're happy that they withdrew the order,” said Mark Thomas, executive vice president of the Oklahoma Press Association. “A broad, sweeping closure of massive public records is not the answer to identity theft problems.”
Posted by Marcia Oddi on March 25, 2008 02:52 PM
Posted to Courts in general
Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)
For publication opinions today (2):
In Jeffrey Kochis v. City of Hammond, Indiana, et al, a 12-page opinion, Judge Darden writes:
Jeffrey Kochis appeals the trial court’s order granting summary judgment to City of Hammond, Indiana (“City”); Fire Department of the City of Hammond, Indiana, and Chief David Hamm; and Board of Public Works & Safety of Hammond, Indiana (“Safety Board”) (collectively, “Hammond”) on Kochis’ complaint.1 We reverse and remand. * * *In Sherri Gleeson v. Preferred Sourcing, LLC , a 27-page opinion, Judge Vaidik writes:As the party moving for summary judgment, Hammond bore the initial burden of showing no genuine issue of material fact and the appropriateness of judgment as a matter of law. Monroe Guar. Ins. Co., 829 N.E.2d at 975. Hammond’s designated evidence falls woefully short of making a prima facie showing that the demotion was one that fits within the economic exception. Because such remains as a genuine issue of fact, summary judgment should not have been granted to Hammond.
Kochis also argues that his motion for summary judgment should have been granted. However, because we find that whether the economic exception applies here is a question of fact, his argument in this regard must also fail.
Reversed and remanded for further proceedings consistent with this opinion.
Sherri Gleeson appeals the trial court’s grant of her former employer Preferred Sourcing, LLC’s (“Preferred”) motion for a preliminary injunction against her, which sought to enforce the terms of a non-compete agreement that she signed. Finding that Preferred has proven the requirements for a preliminary injunction and that several defenses do not apply, we conclude that the trial court did not abuse its discretion in granting the preliminary injunction. In addition, we conclude that the court abused its discretion in refusing to order security for the preliminary injunction. Accordingly, we affirm in part and reverse in part.NFP civil opinions today (0):
NFP criminal opinions today (1):
Jacklyn A. Thomas v. State of Indiana (NFP)
Posted by Marcia Oddi on March 25, 2008 01:01 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - 7th Circuit issues an Indiana opinion today
In Christina Soltys and Danuta Pauch v. Yvonne Costello (ND Ind., MJ Rodovich), a 14-page opinion, Judge Kanne writes:
Christina Soltys and Danuta Pauch were seriously injured in a car accident caused by Yvonne Costello, who, at the time, was driving under the influence of alcohol. Soltys and Pauch sued Costello, who admitted liability; trial was limited to the amount of damages owed to Soltys and Pauch. The district court denied Soltys and Pauch’s eleventh-hour motion to amend their complaint to add a count for punitive damages. After the jury returned its verdict, the district court denied Soltys and Pauch’s motion for a new trial. The district court did not abuse its discretion on either of these issues, so we affirm. * * *The facts of the accident underlying this case are simple enough * * *.
The facts of the litigation surrounding the accident, on the other hand, are muddled and chock-full of attorney blunders. Soltys and Pauch hired attorney Benjamin Nwoye, who filed a complaint in federal court against Costello in June 2004, on the basis of diversity jurisdiction. The complaint included negligence counts, and averred that Costello was legally intoxicated at the time of the accident. Unfortunately for Soltys and Pauch, Nwoye made numerous mistakes after the pleading stage of the litigation, some of which led to the imposition of sanctions against Soltys and Pauch. But Nwoye was not the only attorney committing errors in the case. * * *
The outcome of this case seems unfortunate, as the district court noted. Two individuals were hit by an intoxicated driver and suffered serious injuries but were denied proper relief because their attorney did not comply with discovery orders and did not raise valid legal issues that would likely have led to adequate relief for his clients. But, being constrained as we are to review only the issues properly before us on appeal, we cannot remedy this situation. As the district court noted, “any blame lies with the plaintiffs’ attorney.” If Soltys and Pauch have any hope of securing additional relief, they must look to Benjamin Nwoye.
Posted by Marcia Oddi on March 25, 2008 12:50 PM
Posted to Ind. (7th Cir.) Decisions
Environment. - Yet more on: BioTown, USA. Remember little Reynolds, Indiana? Population 500
The ILB has had a number of entries on "BioTown", going back to this one from Sept. 13, 2005, headed "Daniels hopes to transform town of Reynolds so it's powered only by renewable power sources."
Today Tom Murphy of the AP reports, in a lengthy story that begins:
REYNOLDS, Ind. -- This one-stoplight farming hamlet had big dreams in 2005 when it was christened BioTown USA.Its goal: to become the first U.S. community to meet all electricity and gas needs through renewable energy by using everything from farm waste to sewage.
AdvertisementIndustry and government officials led the early charge. BP installed a gas pump offering an ethanol fuel blend, and South Dakota-based VeraSun Energy Corp. started building an ethanol production plant near town.
Former U.S. agriculture secretary Mike Johanns stopped by in support, as did the band Crosby, Stills, Nash & Young. Visitors also included a group of Chilean corn farmers who were touring the Midwest and interested in learning more about biofuels.
But the visitors are long gone, and many say the excitement is too. Money problems, leadership changes and other obstacles have sparked skepticism that Reynolds will ever succeed at moving the state, much less the nation, toward homegrown energy and away from foreign oil.
Posted by Marcia Oddi on March 25, 2008 10:25 AM
Posted to Environment
Ind. Gov't. - More on: Attorney General Carter will not run for third term
Updating yesterday's entry, Tim Evans reports today in an Indianapolis Star story headlined "Attorney general's decision not to run sets off scramble", that begins:
At least three Republicans and one Democrat surfaced Monday as potential candidates to succeed state Attorney General Steve Carter, who surprised even political insiders with a weekend announcement that he will not seek a third term.Confirming interest in filling the void on the GOP ticket were Marion County Prosecutor Carl Brizzi; Carter's chief deputy, Greg Zoeller; and Indianapolis attorney Tom Wheeler, who is chairman of the State Election Commission.
AdvertisementIn November, the Republican nominee likely will face Democrat Linda Pence, a former U.S. Justice Department attorney who is a partner in the Indianapolis law firm Sommer Barnard.
Democrats and Republicans will select their attorney general candidates at the parties' respective state conventions in June. The Republican convention is June 2; Democrats will caucus June 20-21.
Posted by Marcia Oddi on March 25, 2008 10:21 AM
Posted to Indiana Government
Ind. Decisions - "Driver's DWI tossed on appeal"
The Court of Appeals' decision yesterday in the case of State of Indiana v. Christopher L.Rager (see ILB entry here - 4th case) is the subject of a story by Niki Kelly in today's Fort Wayne Journal Gazette. Some quotes:
Police in Noble County had no justifiable reason to pull over Christopher L. Rager during a concentrated patrol in April 2006, the Indiana Court of Appeals ruled Monday.The decision affirms an earlier trial court decision throwing out evidence related to the felony drunken-driving stop and charge. * * *
The appeals court noted first that because Indiana 9 is not a four-lane highway, Rager was not required to change lanes.
The decision also said Feller had no idea whether Rager reduced the speed of his vehicle as he approached the site of the traffic stop, and there was no evidence that his speed was unsafe.
The appellate court also noted that the trial judge viewed the videotape of the traffic stop recorded from Feller’s vehicle and didn’t “see much difference” in the speed of Rager’s truck compared with that of other passing vehicles.
Without evidence from the stop, the prosecution will be forced to dismiss the case.
Posted by Marcia Oddi on March 25, 2008 08:01 AM
Posted to Ind. App.Ct. Decisions
Monday, March 24, 2008
Environment - "Huntington County dairy coming under new management"
From a press release issued this afternoon by IDEM:
Under an agreement reached with the Indiana Department of Environmental Management (IDEM), Huntington County dairy owner Johannes DeGroot and DeGroot Dairy, LLC, operating in Indiana since 2001, is barred from operating livestock facilities in the State of Indiana. The Agreed Order, signed by DeGroot Dairy, LLC, and IDEM, resolves all compliance issues currently in litigation and allows for the dairy’s sale and operation in compliance with strict environmental regulations.Here is a list of earlier ILB entries referencing "DeGroot."“All Indiana livestock operations must meet their environmental responsibilities or face serious consequences,” said Thomas W. Easterly, IDEM commissioner. “We have utilized the courts and worked effectively with all parties, including Johannes DeGroot, area residents, and new operators for the facility, to ensure it is managed in a way that protects area streams and the Salamonie Reservoir.”
Under the agreement, DeGroot will not operate any animal feeding operation, confined feeding operation or concentrated animal feeding operation in Indiana through 2048. In addition, DeGroot agrees to sell the Huntington County dairy operation to Vreba-Hoff and allows Vreba-Hoff to take immediate responsibility for daily operations.
Vreba-Hoff immediately assumes responsibility for the farm’s management. A signed purchase agreement between DeGroot and Vreba-Hoff requires the property transfer to be completed by December of 2009. Once the transfer is complete, DeGroot is also barred from ownership of any livestock operations in the State of Indiana.
This agreement resolves several pending legal proceedings involving the dairy. IDEM took legal action against this facility last year to protect state waters.
Posted by Marcia Oddi on March 24, 2008 05:22 PM
Posted to Environment
Ind. Law - Governor's action on 2008 bills now complete
From a media advisory:
The 2008 Bill Watch on the governor’s Web site has been updated. Thirty-three bills were signed by the governor today. This completes the bill process for 2008.Note that only one bill, HEA 1210, Teacher certification, was vetoed.
Posted by Marcia Oddi on March 24, 2008 05:14 PM
Posted to Indiana Law
Ind. Decisions - Cases granted transfer last Thursday and today
Although there was no transfer list issued last week, the ILB has just received this list of transfers granted by the Supreme Court March 20 (last Thursday), and today.
| In the Matter of J.C.C. | 49A02-0403-JV-266 | 3/20/08 | Transfer granted |
| Marla Young v. Timothy Young | 09A05-0701-CV-52 | 3/20/08 | Transfer granted |
| Anthony Hopkins v. State | 49A05-0705-PC-279 | 3/24/08 | Transfer granted |
| State v. Michael Cozart | 22A01-0704-PC-183 | 3/24/08 | Transfer granted |
| Richard Wallace v. State | 49A02-0706-CR-498 | 3/24/08 | Transfer granted |
| Todd Jensen v. State | 02A04-0706-CR-351 | 3/24/08 | Transfer granted |
Posted by Marcia Oddi on March 24, 2008 03:35 PM
Posted to Indiana Transfer Lists
Ind. Decisions - 7th Circuit issues one Indiana opinion
In U.S. v. Odell Corley (ND Ind., Judge Lozano), a 22-page opinion, Judge Rovner writes:
The defendant-appellant Odell Corley was convicted of a number of charges including bank robbery and capital murder, and was sentenced to death on October 27, 2004. He appeals his convictions and his sentence. * * *[Updated 3/25/08] From an AP story:The conviction and sentence are AFFIRMED.
A federal appeals court has upheld the death sentence for an Indiana man convicted of killing two bank tellers during a botched robbery.A three-judge panel of the 7th Circuit Court of Appeals unanimously turned down arguments from attorneys for Odell Corley, who is black, that prosecutors had improperly rejected blacks from serving on the jury in his trial.
The judges also denied claims that prosecutors wrongly influenced jurors during the sentencing phase by bringing up allegations that Odell had been involved in an Atlanta murder.
Corley was sentenced to death in 2004 after a federal jury in Hammond convicted him of murder and other charges in the shooting at the First State Bank of Porter in the Town of Pines that also left a security guard paralyzed.
Posted by Marcia Oddi on March 24, 2008 01:08 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP) [Corrected]
For publication opinions today (4):
Andrew Joseph Scott v. State of Indiana - "We conclude that the probable cause affidavit was properly filed and that the associated search warrant was supported by sufficient probable cause. Moreover, we conclude that information that ether had been detected within the prior two months at Scott’s residence and that he had been convicted four years previously of manufacturing methamphetamine at the same address was not stale. The judgment of the trial court is affirmed."
Johnson County Rural Electric Membership Corp. and American Meter Reading, LLC. v. South Central Indiana Rural Electric Memebership Corp. - "Johnson County REMC timely filed its motion for automatic change of judge and the trial court was required to grant it; Johnson County REMC did not waive its right to challenge the denial of that motion. We reverse and remand for further proceedings consistent with this opinion, including selection of a special judge in accordance with Indiana Trial Rule 79. Reversed and remanded."
In Nassirou Gado v. State of Indiana , a 9-page opinion, Judge Barnes writes:
We do not believe a trial court has to accept at face value a defendant’s professed lack of understanding of English, anymore than it must accept an assertion of incompetency to stand trial, or must accept in-court disruptiveness as indicative of incompetency. See Bramley v. State, 543 N.E.2d 629, 633-34 (Ind. 1989) (holding, with respect to competency findings, that a trial court has a duty to ensure “that causes are tried and final determinations made” and that “[i]t would be impossible to accomplish this if a defendant is permitted to purposely frustrate the procedures by disruptive behavior.”). The trial court here essentially found that Gado intentionally was attempting to frustrate his prosecution by faking inability to communicate in any language other than Djerma, a rare language for which it is very difficult to find interpreters. There is evidence in the record to support that conclusion and that Gado adequately understood English, and possibly French, so as to proceed with his trial without the aid of a Djerma interpreter. The trial court was in the best position to judge witness credibility firsthand and decide whether Gado required an interpreter. It did not abuse its discretion in concluding that he did not. * * *State of Indiana v. Christopher L.Rager - "We conclude that Deputy Feller mistakenly believed that Rager violated the statute. State Road 9 was not a four-lane highway at the site of Deputy Feller’s traffic stop, and therefore Rager was not required by statute to change lanes as he approached Deputy Feller’s vehicle.4 Moreover, Deputy Feller had no idea whether Rager reduced the speed of his vehicle as he approached the site of the traffic stop, and there is no indication that Rager was maintaining an unsafe speed for the existing road conditions. After viewing the videotape of the traffic stop recorded from Deputy Feller’s vehicle, the trial court remarked that it did not “see much difference” in the speed of Rager’s truck compared with the speed of the other passing vehicles. Tr. at 17. Under these circumstances, we conclude that Deputy Feller, and by extension Marshal Fennell, did not have an objectively justifiable reason to stop Rager’s vehicle. Therefore, we affirm the trial court’s granting of Rager’s motion to suppress. Affirmed.The trial court did not abuse its discretion in proceeding to trial without obtaining a Djerma interpreter and in admitting items found in Felemban’s apartment into evidence. We affirm.
NFP civil opinions today (3):
The City of East Chicago, Indiana v. Herbert and Alma Lasser (NFP) - "Here, the termination agreement did not embrace the entire substance of the former contract. At the most, it included a settlement provision and terms for the removal of fixtures. Further, the termination agreement contains no express indication that either party intended to repudiate the original lease agreement. We cannot conclude that the original lease agreement was merged into the termination agreement. The trial court properly awarded the Lassers property damages and attorney fees pursuant to the original lease agreement.
"Conclusion The security system and wire cages were fixtures, and East Chicago improperly removed them when it vacated the property. The original lease agreement did not merge into the termination agreement. We affirm."
Shavaughn Carlos Wilson-El v. Indiana Dept. of Correction (NFP)
NFP criminal opinions today (3):
Preston Woods v. State of Indiana (NFP)
Daniel Carmichael v. State of Indiana (NFP)
Misty Dawn Boyer v. State of Indiana (NFP)
Posted by Marcia Oddi on March 24, 2008 01:02 PM
Posted to Ind. App.Ct. Decisions
Ind. Law - New law would target loan predators
Bryan Corbin of the Evansville Courier & Press reported Sunday in a lengthy story that begins:
After seeing families forced to move from their homes in recent months because of rising mortgage payments, the Indiana General Assembly attempted this year to reduce the number of future foreclosures by putting tighter controls on the home-mortgage industry.And while legislation passed this year won't aid people who have already lost their homes, it is intended to weed out unscrupulous players in real estate transactions so future buyers will be less likely to get snared in financial traps.
The legislation, House Bill 1359, was passed by the Legislature on March 14 and sent to Gov. Mitch Daniels' desk.
Local mortgage brokers said they could support changes to state law.
"They've allowed too many people in the broker business that shouldn't be in it. There's too much fraud — people taking advantage of older people or people without much financial knowledge," Dave Clark, president of Talon Mortgage of Evansville, said last month. "And I think it's our job to educate borrowers on what kind of loan they're taking, instead of just saying, 'Sign here.'"
Daniels has until Thursday to sign the bill, House Enrolled Act 1359, into law.
It would make a number of changes that law enforcement, state regulators and the mortgage-banking industry had advocated.
Posted by Marcia Oddi on March 24, 2008 10:13 AM
Posted to Indiana Law
Ind. Gov't. - Attorney General Carter will not run for third term
John Strauss of the Indianapolis Star reports:
Indiana Attorney General Steve Carter, who focused on consumer protection and championed the state's Do-Not-Call list during two terms in office, said Sunday that he would not seek re-election this year."We have achieved a lot, but I think we can achieve things outside government," Carter, 54, said at a news conference in his office. His term expires early next year. * * *
State payroll records from last year show Carter's base salary at $79,400. A living allowance of about $12,000 pushed that to $91,400, and this year he will make about $95,000 -- far less than attorneys with similar responsibilities can expect to make in the private sector.
Posted by Marcia Oddi on March 24, 2008 10:09 AM
Posted to Indiana Government
Ind. Courts - "Courts lose some say on kids in state's care"
Tim Evans of the Indianapolis Star has a story today that begins:
Tucked into the 600 pages of tax-reform legislation signed into law last week by Gov. Mitch Daniels are several provisions that will mean judges might no longer get the last word in deciding what's best for abused children in the state's care.The coming changes have already made judges and others apprehensive, though advocates say they will deliver millions in savings to taxpayers while expanding the state's ability to collect federal reimbursements.
AdvertisementThe new policies and procedures outlined in House Enrolled Act 1001 are part of a shift that makes the state, rather than counties, responsible for the $440 million annual cost of providing services to abused and neglected children and their families as well as to youths in the juvenile justice system.
James W. Payne, who heads the Department of Child Services, called the legislation "a unique opportunity to move forward" with child welfare reforms launched by Daniels in 2005. Most of the changes are set to take effect Jan. 1.
But Payne acknowledged there will be an adjustment period for judges, service providers, local officials and others who will see their roles changing -- in some cases, significantly.
Posted by Marcia Oddi on March 24, 2008 10:06 AM
Posted to Indiana Courts
Ind. Decisions - Upcoming oral arguments this week
ILB note: Tuesday's oral argument at 11 AM before the COA, in the case of Allianz Insurance Company v. Guidant Corporation, looks to be a "don't miss" event. It will be webcast; see details below. The ILB has made a pdf of the case docket, as it exists this morning. Access it here.
______________
This week's oral arguments before the Supreme Court:
This Thursday, March 27th:
9:00 AM - Willie Eaton v. State - Following a jury trial in the Wayne Circuit Court, Eaton was convicted of dealing in cocaine and other offenses. Evidence obtained by the Sate pursuant to search warrants was admitted over Eaton's objection. The Court of Appeals determined the evidence had been obtained improperly and reversed the convictions in Eaton v. State, 878 N.E.2d 481 (Ind. Ct. App. 2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Eaton; David M. Jordan of Richmond, IN. Attorney for the State; Scott L. Barnhart of Indianapolis, IN. [Where: Indiana Supreme Court Courtroom]
This week's oral arguments before the Court of Appeals that will be webcast:
This Tuesday, March 25th:
11:00 AM - Allianz Insurance Company v. Guidant Corporation - In addition to the issues relayed by the parties in their original briefs to show cause why sanctions should not be imposed for failing to follow the Motion Panel's directive concerning the submission of a meaningful public access set of briefs as ordered on July 17th, 2007, the parties' attention is directed to the Supreme Court's order in Palmer v. Comprehensive Neurologic Services, P.C. et al, 32A01-0512-CV-553, dated June 29, 2007, wherein the court stated that "as a general proposition, court records are accessible to the public unless excluded from public access by a provision of Rule 9(g)(2)" The oral argument herein scheduled shall be a public hearing to balance the public's interest in access with the movant's interest in restriction access. The Scheduled Panel Members are: Chief Judge Baker, Judges Riley and May. [Where: Indiana Supreme Court Courtroom]
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will NOT be webcast:
This Thursday, March 27th:
10:00 AM - Danny Quick vs. State of Indiana - What: If the evidence is sufficient to support Appellant's conviction of murder. The Scheduled Panel Members are: Chief Judge Baker, Judges Darden and Bradford. [Where: Indiana Court of Appeals Courtroom]
Posted by Marcia Oddi on March 24, 2008 07:59 AM
Posted to Upcoming Oral Arguments
Sunday, March 23, 2008
Courts - Who has authority over Ohio court records?
On March 12th the ILB had an entry about the Oklahoma Supreme Court cutting off on-line access to public court records.
Today the Cleveland Plain Dealer has this story by Reginald Fields. Some quotes:
Columbus- A leading open- government advocate says the Ohio Supreme Court is exceeding its powers by trying to take control of state court records.Cleveland lawyer David Marburger, of the Ohio Coalition for Open Government, said a court- appointed commission drawing up rules on what court records the public should have access to does not have the constitutional authority to do so.
"When you give a small group of people, seven people, the power to decide what everyone should have access to, you have automatic mischief, maybe not intended mischief," said Marburger, an open-records attorney who represents The Plain Dealer and other Ohio newspapers.
"The court doesn't have this kind of power," he said. "The court is not a little legislature."
But Justice Judith Ann Lanzinger, who chairs the Commission on the Rules of Superintendence for Ohio Courts, said Marburger is wrong.
She points to the Ohio Constitution, which states that the high court is to oversee all state courts and set rules and procedures for how those courts operate.
"The Supreme Court has the authority to make sure the courts are operating in a just fashion," she said this month following a commission meeting. "So I don't know where this constitutional argument is coming from." * * *
For more than a century, if access to Ohio court records became a debatable issue, judges tended to lean on the state's legislatively authored open-records law or case law, the body of prior judicial decisions.
But two years ago, the Ohio legislature tinkered with the public-records law and considered slipping in a provision to exempt all court records, which led to an argument over separation of powers.
At that point, Chief Justice Thomas Moyer decided to move court records under the judicial branch of government, as he says the constitution allows him to do, and appointed Lanzinger's commission to draft the rules.
The rules essentially try to define what is a court record, which records are public, how they can be disseminated and what remedies are available when access is denied.
So far, the drafted rules are similar to the public-records law, but red flags have been raised by provisions allowing some litigants to hide their identities in court records or allowing some records to be closed without a public hearing.
Lanzinger said she was surprised that the general feedback from the public was that the commission was trying to close off access rather than keep it open. Nothing could be further from the truth, she said, and the commission is considering revisions before meeting again in June.
Those access concerns are at the heart of Marburger's complaint. He suspects the commission will pass rather benign rules now to appease the public, but he says that does not stop future justices from later changing the guidelines on a whim.
"I don't know how often, but I promise you that there will be a point when one group will say 'Dismissed complaints against certain kinds of people should be closed' or 'Divorce records should be closed,' " he said.
Posted by Marcia Oddi on March 23, 2008 01:51 PM
Posted to Courts in general
Ind. Decisions - "Condo owners fail to win damages: Claimed Kamm Island span blocked their river view"
Reporting on the Court of Appeal's March 20th opinion in Center Townhouse Corp et. al. v. City of Mishawaka (ILB entry here, 3rd case), Marti Goodlad Heline writes today for the South Bend Tribune:
Five years ago, owners of condominiums near Kamm Island hired an attorney to attempt to stop the city from building a bridge they said would interfere with their view of the St. Joseph River.After five years of litigation, they are no better off than when they started. A ruling from the Indiana Court of Appeals in Indianapolis affirmed a jury verdict that gave no monetary damages to the owners.
A request for an injunction failed and the pedestrian bridge to Kamm Island was built as part of Mishawaka's Riverwalk.
The Schellinger Square condominium owners' 2002 lawsuit in St. Joseph Circuit Court also sought compensation from the city of Mishawaka for what they said was an unlawful taking of their property to build the bridge.
The first trial in the lawsuit took place in 2004. The ruling by then-Circuit Court Magistrate David Chapleau found the owners of the condos, located behind the 100 Center, were entitled to compensation for their loss of their "riparian" rights to freely use the water adjacent to their shoreline but not for their loss of a scenic view.
A second trial in 2006 was held to determine what damages, if any, were owed the five owners. After appraisals were done following the ruling in the 2004 trial, the owners insisted they were owed at least $145,000 from the city of Mishawaka.
The owners maintained the bridge not only interfered with their view of the river but restricted where they could swim, cast a fishing line or use a pontoon boat on the river or build a pier.
At the second trial in 2006, the jury found the loss was too minimal, so the city of Mishawaka owed no monetary damages to the owners.
That was despite a ruling that the city's action amounted to an "inverse condemnation" by the city because the bridge did affect the owners' rights to fully use their property, according to the 2004 ruling.
Both sides appealed after the 2006 verdict. The owners challenged the zero verdict and the instructions the jury was given. The city of Mishawaka challenged the ruling that an involuntary taking of property occurred.
In a 17-page ruling issued Thursday, the Indiana Court of Appeals upheld the jury verdict and prior rulings by Circuit Judge Michael Gotsch and Chapleau.
The appellate judges said the city failed to meet the burden to show the ruling was in error that Mishawaka had taken the owners' riparian rights involuntarily.
The appellate court also found the ruling issued was correct in that riparian rights do not include an unobstructed view of water. There was no problem with the jury instructions, the appeals judges said.
Either side may ask the Indiana Supreme Court to review the case, but that court is under no obligation to do so.
Posted by Marcia Oddi on March 23, 2008 11:11 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "Fountain County judge's order blocked an Indy TV station from airing a parent's criticism of child welfare agency"
That is the headline of a story by Tim Evans in today's Indianapolis Star.. Some quotes:
Mark McGaha wanted to share his frustrations about the Department of Child Services with the public, but he never got the chance.McGaha did an interview with an Indianapolis TV station, but a Fountain County judge issued a restraining order barring the station from airing his complaints or even showing his face -- apparently without even having seen the footage.
The segment about family advocacy group Honk For Kids was broadcast March 13, without McGaha's comments and with his face blocked out in a group shot of parents.
A legal scholar called Judge Susan Orr Henderson's action unconstitutional and said it "borders on judicial misconduct."
"Quite simply, a judge does not have the authority to stop the press from publishing or airing a story," said Henry Karlson, a professor at Indiana University School of Law-Indianapolis. "Any person has a right to contact the press and say a public agency is not treating them right."
Karlson said the judge's action amounted to "prior restraint," or government censorship, which is a violation of the First Amendment. * * *
After the TV segment aired, Honk For Kids asked the station, WXIN (Channel 59), why McGaha's face had been blurred and was told of the restraining order. That was the first that anyone, including McGaha, had heard about the judge's action.
Gavin Maliska, news director at WXIN, said station officials discussed challenging the order, which was issued the day the segment was to air, but decided McGaha's contributions weren't essential to the story.
"It came down to principle versus practical," he said. "If it would have affected what we were trying to do with the story, we probably would have had a different outcome."
Maliska said the court order was sought by the guardian ad litem who represents McGaha's children in a Child in Need of Services case in Fountain County.
The guardian ad litem, Covington attorney Sue White, did not return calls from The Indianapolis Star, and the court would not release a copy of the order. Bailiff Dianne Cotten said it was part of the confidential records of the CHINS case and could not be made public.
However, a copy obtained by The Star showed that Henderson barred WXIN "from broadcasting any portion of an interview involving Mark McGaha and his minor children until such time as the guardian ad litem and/or court has an opportunity to review" the report.
The order said the injunction was issued to protect the best interests of the children. Karlson said that does not provide the constitutional standard for such an order.
"I see no basis on which a prior restraint could have been imposed," he said. "He has an absolute right to complain about his treatment by the court or any other government agency."
McGaha could appeal the judge's ruling, Karlson said, "but it's basically a moot point" because the opportunity to air his complaints on TV has passed.
"I don't know what's more outrageous: the judge ordering this and not knowing it violates the Constitution, or knowing and still issuing the injunction," Karlson said.
Posted by Marcia Oddi on March 23, 2008 08:39 AM
Posted to Indiana Courts
Saturday, March 22, 2008
Courts - "Justice for Sale"
Check out this opinion piece today from the Wall Street Journal, authored by James Sample, an attorney with the Brennan Center for Justice at NYU School of Law. Some quotes:
Certain American values transcend partisan divisions. One is that money should not influence the courts. But with record sums pouring into judicial elections, the ideal of due process is giving way to a perception of pay-to-play justice. * * *John Grisham's latest bestseller, "The Appeal," is a shadowy tale of a chemical company that buys a favorable legal ruling by funding the election of the judge who makes it. Farfetched? Not according to West Virginia Supreme Court Justice Larry Starcher. In a scathing opinion last month, he decried a "cancer" of moneyed influence in his court, asserting that "John Grisham got it right when he said that he simply had to read The Charleston Gazette to get an idea for his next novel."
The citizens of 39 states elect some or all of their judges. These contests have become costly arms races. An investigation by the Los Angeles Times, "In Las Vegas, They're Playing with a Stacked Judicial Deck," revealed that even Nevada judges running unopposed collected hundreds of thousands of dollars in contributions from litigants. The report noted that donations were "frequently" dated "within days of when a judge took action in the contributor's case."
Business interests and trial lawyers both lay out campaign cash to ensure that sympathetic judges are elected. Both sides attempt to manipulate courts; business just happens to be better at winning. The U.S. Chamber of Commerce got involved in 13 judicial races in 2004 and won 12. Nationwide in 2006, business donors contributed twice as much to state supreme court candidates as attorneys, according to the National Institute on Money in State Politics.
Consider three recent episodes in light of the American Bar Association's requirement that judges disqualify themselves whenever their "impartiality might reasonably be questioned."
Lloyd Karmeier, the winner of a $9.3 million campaign for the Illinois Supreme Court in 2004, was supported by $350,000 in direct contributions from employees, lawyers and others directly involved with the insurer State Farm and/or its then pending appeal, and by an additional $1 million from larger groups of which State Farm was a member, or to which it contributed. Almost immediately upon taking the bench, he cast a vote ending proceedings on a $456 million claim against State Farm. A St. Louis Post-Dispatch editorial put it this way: "Although Mr. Karmeier is an intelligent and no doubt honest man, the manner of his election will cast doubt over every vote he casts in a business case."
Wisconsin Justice Annette Ziegler declined, in December, to recuse herself from a case involving Wisconsin Manufacturers & Commerce, which spent $2 million -- more than her Ziegler's own campaign -- supporting her 2007 win. In light of that decision, as well as additional revelations that Justice Ziegler had ruled on 11 cases involving a company for which her husband was a director, editorials around the state called for her to step down from the case, and even from the bench. Not coincidentally, all seven of Wisconsin's Supreme Court justices, a broad majority of Wisconsin's public, and even a plurality of self-identified "very conservative" Wisconsin voters support public financing of judicial elections.
In November, West Virginia Chief Justice Elliot Maynard voted in a 3-2 majority to overturn a $76 million judgment against the companies of coal executive Don Blankenship. In January, photos surfaced depicting Messrs. Maynard and Blankenship vacationing in the French Riviera while the appeal was before the court.
Posted by Marcia Oddi on March 22, 2008 06:05 PM
Posted to Courts in general
