The Indiana Law Blog

Thursday, May 01, 2008

Ind. Courts - Senate hearing today on nominee to fill SD Ind. seat vacated by Judge Tinder's appointment to 7th Circuit

As reported by an announcement Feb. 15th on the SD Indiana website:

On February 14, 2008, United States Magistrate Judge William T. Lawrence was nominated by President George W. Bush to fill the vacant seat on the bench of the United States District Court for the Southern District of Indiana. The vacancy was created by the elevation of Judge John Daniel Tinder to the United States Court of Appeals for the Seventh Circuit last year. Judge Lawrence now faces a hearing in front of the Senate Judiciary Committee, followed by a confirmation vote by the full Senate. A timeline for these proceedings has not been established.
Magistrate Judge Lawrence has been serving in his current position since November 2002, when he was appointed by the District Judges. Prior to his appointment, he was elected Judge of the Marion County Circuit Court from 1996 to 2002. He was also a parttime Master Commissioner at the Marion County Circuit Court from 1983 until his 1996 election.

Today the Senate Judiciary Committee held its hearing on Judge Lawrence's nomination. Here is Senator Lugar's statement introducing Judge William Lawrence to the Senate committee.

Posted by Marcia Oddi on May 1, 2008 04:54 PM
Posted to Indiana Courts

Ind. Courts - "Howard County Judge accuses deputy prosecutor of drug use"

Patrick Munsey of the Kokomo Perspective reports today in a lengthy story that begins:

Last week, Howard Superior Court II judge Stephen Jessup held a contempt of court hearing against deputy prosecutor David Steele concerning his absence for criminal cases in which he represents the state. But, according to those who were there, the hearing got out of hand and resulted in the judge accusing Steele of being "strung out on drugs."

Steele has declined to comment on the events of the April 21 hearing, but the Perspective obtained copies of the proceedings; the transcript accompanies this story.

It is alleged that Jessup went to the Prosecutor's Office on April 18, searching for Steele when he did not appear in court for a criminal plea hearing. Deputy prosecutor Michael Krebes appeared on Steele's behalf. When Jessup was told that the prosecutor didn't know Steele's whereabouts, he openly accused the attorney of drug use. During Steele's contempt hearing on April 21, the judge admitted to making the accusation.

According to the story, the printed version of the paper contains at least two transcripts of proceedings. However, they do not appear to be accessibe online.

Posted by Marcia Oddi on May 1, 2008 04:27 PM
Posted to Indiana Courts

Ind. Courts - "Should drug-addicted pregnant women be criminalized?"

Angela Mapes Turner of the Fort Wayne Journal Gazette had a lengthy story last Sunday, April 27th, headed: "Pregnant addicts blur crime debate: Authorities waver on punishment for neglect, abuse." Some quotes from the thoughtful report:

In December 2006, police say, Brooke Honaker was using methamphetamine.

Honaker, who was 21 at the time, already was on probation when she tested positive twice for the drug.

The bigger problem?

She was pregnant.

In June 2007, LaGrange County authorities charged her with neglect of a dependent, a felony. Honaker’s ongoing case – another hearing is scheduled for Monday – reflects an issue that periodically surfaces throughout the U.S.

Should drug-addicted pregnant women be criminalized?

Opponents say prosecution of such crimes can deter a pregnant drug addict from seeking prenatal care or help for her addiction, while supporters say drug use by pregnant women causes harm and should result in punishment.

The story references a 1993 Fort Wayne case, where formal charges also were filed against a pregnant crack cocaine user who premature one-pound infant died:

If Judge Kenneth Scheibenberger set precedent by continuing with the charges, it could dissuade other pregnant addicts from seeking prenatal care, Paltrow said.

Scheibenberger ruled that to be accused of reckless homicide in Indiana, a person must engage in reckless behavior that results in the death of a human being. A fetus, according to state law, was not a human being, he said in his ruling. The reckless homicide charge was dropped.

The issue, as Scheibenberger acknowledged in his ruling, often devolves into an argument over when human life begins – part of the core debate regarding abortion.

That debate doesn’t necessarily apply in Honaker’s case, LaGrange County Prosecutor Jeff Wible said. The judge tasked to Honaker’s case won’t be asked to judge harm to a fetus but rather issues that Honaker’s child might develop later in life.

If called to testify, a doctor who has examined Honaker’s child will say that Honaker’s meth use hasn’t caused detectable damage at this time, but that the meth use will be detrimental to the child’s health and well-being, Wible said.

“The judge will have to decide if future harm is enough to justify a conviction,” he said.

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

For publication opinions today (1):

Jeffrey Buckley v. State of Indiana - "Jeffrey Buckley appeals his conviction of Carrying a Handgun Without a License,1 as a class C felony. The sole issue presented on appeal is whether the trial court abused its discretion in admitting evidence of the handgun, which Buckley claims was discovered as a result of an unconstitutional seizure. We reverse and remand."

NFP civil opinions today (1):

John R. Solek v. Karee L. Solek (NFP) - "John Solek (Father) appeals from an order of the trial court requiring him to contribute to his son’s college expenses and continue to pay his income-percentage share of his son’s uninsured medical expenses."

NFP criminal opinions today (5):

State of Indiana v. Robert E. Savage (NFP) - "Therefore, we conclude that the good faith exception does not apply here and that the trial court properly granted Savage’s motion to suppress."

Jocko Dean Davis v. State of Indiana (NFP) - From the final paragraph of the opinion: "With regard to the nature of the offense, 5’10”, 380-pound Davis engaged in sexual contact with a 14-year-old intoxicated girl who had apparently passed out."

A reader, pointing this out, comments: "It seems to me it's wrong to have sex with a 14 year old, whether a person is 110 pounds, 200 pounds, or 500 pounds. I've never seen a court use a person's weight against them quite like this." Interesting.

Mindy Troxal v. State of Indiana (NFP)

Frankie A. Johnson v. State of Indiana (1) (NFP)

Frankie A. Johnson v. State of Indiana (2) (NFP)

Posted by Marcia Oddi on May 1, 2008 12:48 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Judge John T. Sharpnack will retire from the Indiana Court of Appeals on Friday

From a press release today:

Judge John T. Sharpnack will retire from the Indiana Court of Appeals in a ceremony in the Supreme Court courtroom at 3:00 p.m. on Friday, May 2, 2008. Chief Judge John G. Baker will preside. Judge Sharpnack’s family, colleagues, former law clerks, and special guests will attend the ceremony, followed by a reception. (Seating is by invitation, but the media is welcome to cover the event.)

Judge Sharpnack, appointed by Governor Evan Bayh in January 1991, served more than 17 years. He reaches the constitutionally-mandated retirement age of 75 on May 7th, and his last day on the court will be May 3, 2008. He will continue to serve the citizens of Indiana as a senior judge beginning May 5th.

Judge Sharpnack, who was retained on the Court of Appeals by election in 1994and 2004, served as Chief Judge of the Court of Appeals from September 9, 1992 to December 31, 2001. During his tenure as Chief Judge, the court created a motions panel to rule on motions made prior to a case being fully briefed; initiated a rotating panel system for deciding cases; and started a senior judge program for the Court of Appeals. Case closure rates markedly improved following these innovations.

Before joining the court, Judge Sharpnack maintained a private practice of law as a partner at Sharpnack, Bigley, David and Rumple, the Columbus (Indiana) firm founded by his grandfather. Earlier, following graduation from law school in 1960, Judge Sharpnack joined the Honor Graduate Program at the Antitrust Division of the U.S. Department of Justice in Washington, DC as an attorney, where he served until 1963.

A native of Columbus, Indiana, Judge Sharpnack grew up in West Virginia, Washington, DC, Pennsylvania and Cincinnati. He served for three years in the United States Army, from 1955 to 1957. He received his bachelor’s degree from the University of Cincinnati’s College of Arts and Science and his law degree from UC’s College of Law, where he was also Editor-in-Chief of the Law Review.

Posted by Marcia Oddi on May 1, 2008 12:38 PM
Posted to Indiana Courts

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

In Mas Capital v. Biodelivery Sciences (SD Ind., Judge Hamilton), a 5-page opinion, Judge Easterbrook concludes:

The district judge was not amused, and neither are we. Tsai and his corporations take the law, and their promises, entirely too lightly. Tsai himself performed the services; any claim that MAS Financial (and thus MAS Capital) may have is derivative of his endeavors, and he has released any claim. We need not go beyond the clause in the release pledging that Tsai will not receive any further benefit from Biodelivery “directly or indirectly”. Any recovery by MAS Capital would provide an indirect benefit to Tsai, the corporation’s beneficial owner. The district judge therefore acted rightly in granting summary judgment to Biodelivery.
We will send copies of this opinion to NASDAQ and the SEC so that they may judge for themselves, in their ongoing administrative proceedings, whether Tsai’s promises are credible. We also direct MAS Capital to show cause within 14 days why we should not impose sanctions under Fed. R. App. P. 38 for this frivolous appeal.

U.S. v. Shaaban (SD Ind., Judge Tinder) is a 3-page opinion re counsel's request to withdraw as appointed counsel for Mr. Shaaban and to permit Mr. Shaaban to proceed pro se. Granted.

Posted by Marcia Oddi on May 1, 2008 12:25 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court grants transfer in four cases

The formal transfer list will follow later this week, but the ILB has received notice that four* cases have been granted transfer:

James Butler v. Indiana Dep't of Ins. - Transfer granted after oral argument yesterday April 30th. See summary here.

In the Matter of the Paternity of K.I., by Grandmother and Next Friend, Juanita Ivers v. Jeremy Hensley (NFP), a Jan. 29th COA opinion (5th case): "On remand, should Father be awarded custody of K.I. and the parties do not agree upon Grandmother’s visitation, we instruct the trial court to determine if Grandmother should be granted grandparent or de facto custodian visitation regardless of Mother’s parenting time with K.I., if any."

Estate of Jerome Mintz v. Connecticut General Life Insurance Company and Wayne E. Gruber (NFP) - a Nov. 28, 2007 COA 2-1 opinion - see ILB summary here (4th case). "Gruber’s actions were not the proximate cause of the Estate’s injuries and Gruber and Connecticut General were properly granted summary judgment on the Estate’s claims of negligence and vicarious liability. Connecticut General was also entitled to summary judgment for the remaining claim of bad faith because the Estate’s claim was essentially based on Connecticut General’s unwillingness to depart from its stated procedure and make an exception."

Bruce Wayne St. Clair, Jr. v. State of Indiana, a Feb. 20th 2-1 COA opinion. See ILB summary here, 6th case. "Bruce Wayne St. Clair, Jr. appeals the denial of his petition for leave to file a belated appeal. The State opposed St. Clair’s petition on the ground St. Clair had waived his right to a direct appeal by entering a plea agreement with a fixed plea. The trial court summarily denied St. Clair’s petition. Finding St. Clair had an open plea and has met the requirements of Post-Conviction Rule 2, we reverse and remand."
___________
*In addition, Sergio Campos v. State of Indiana was granted transfer yesterday, with opinion (see ILB entry here).

Posted by Marcia Oddi on May 1, 2008 11:02 AM
Posted to Indiana Transfer Lists

Ind. Law - More on: Well-known Merrillville attorney killed in car crash

Updating yesterday's ILB entry, Marisa Kwiatkowski of the NWI Times has a long story today headed "Prominent attorney's death shocks community." It begins:

CROWN POINT | Lake County court officials mourned Wednesday the death of defense attorney Garry Weiss.

Weiss, 53, was one of four people who died Tuesday night in a three-vehicle crash at the Merrillville-Winfield border of 101st Avenue and Randolph Street.

The Crown Point resident's unexpected death shook the region's legal community.

Weiss was a practicing attorney for more than 25 years. He also was the chief public defender for Lake Superior Court Judge Jesse Villalpando since 2002.

"He was a first-class attorney in every respect," Villalpando said. "Over the years he became a very close and personal friend. His tragic death is a huge loss to not only our court but to me personally."

Villalpando said he will remember Weiss' "easy smile" and "unpretentious, down-to-earth" nature.

Posted by Marcia Oddi on May 1, 2008 10:57 AM
Posted to Indiana Law

Ind. Decisions - Sentence of Pendleton woman for shooting her husband to death while he slept upheld

Yesterday's COA opinion in the NFP criminal case, Kathy Jo Ward v. State of Indiana, is the subject of a story in the Anderson Herald Bulletin by Shawn McGrath. Some quotes:

The Indiana Court of Appeals on Wednesday upheld the 30-year sentence given to a Pendleton woman for shooting her husband to death while he slept.

Kathy Jo Ward was sentenced to 30 years in prison after she was convicted in June of voluntary manslaughter, a Class A felony that has a sentencing range of 20 to 50 years behind bars. The standard sentence for an A felony is 30 years. * * *

Ward, 38, appealed the sentence, however, arguing the prison term handed down by Madison Circuit Court Judge Fredrick Spencer was inappropriate because of her good character and lack of any criminal history. She argued for the minimum sentence.

In the unanimous opinion handed down by the three-judge Appeals Court panel, Ward’s argument was denied.

“In considering the nature of the offender, we note that Ward, who was 36 years old at the time of the offense, had no criminal history,” Senior Judge Betty Barteau wrote in the opinion. “She had been a productive member of society and had been employed by Sallie Mae for eight years. She had achieved an associate’s degree from Indiana Business College and was working on a bachelor’s degree at the time of the shooting. She supported her teenage son without assistance from his biological father. She expressed sincere remorse for the shooting, and she cooperated with the police during the investigation.

“If the appropriateness of a sentence (under Indiana law) was based merely on the character of the offender, we would find that the imposition of the (standard) sentence was inappropriate,” Barteau continues. “However, our evaluation also includes the nature of the offense. The shooting of a sleeping, defenseless victim warrants the sentence imposed by the trial court.”

Posted by Marcia Oddi on May 1, 2008 10:31 AM
Posted to Ind. App.Ct. Decisions

Courts - "U.S. Appeals Court Rejects NY City’s Suit to Curb Guns"

Alan Feuer of the NY Times reports today:

A federal appeals court threw out New York City’s longstanding lawsuit against the gun industry on Wednesday, ruling that a relatively new federal law protects gun makers against such suits.

The appellate ruling killed perhaps the boldest avenue by which the city has sought to stem the flow of illegal guns into New York: a claim that gun makers and distributors have knowingly flooded illicit, underground markets with their weapons.

The city’s suit, filed in 2000, was upheld in December 2005 by Judge Jack B. Weinstein of Federal District Court in Brooklyn. Judge Weinstein allowed it to move forward, despite protests by gun makers like Beretta U.S.A., Browning Arms, Colt Manufacturing, Glock and Smith & Wesson, all of which cited a federal law that had been passed two months earlier.

That law, the Protection of Lawful Commerce in Arms Act, banned all suits against the gun industry except those in which a plaintiff could prove that gun makers had violated state or federal statutes in their sales and marketing practices.

The city contended that the gun makers did exactly that, by failing to monitor retail dealers closely enough and, therefore, by allowing guns to end up in the hands of criminals. As a result, the city said, the manufacturers had created a “condition that negatively affects the public health or safety” and, thus, had violated New York State’s public-nuisance law. It requested an injunction.

But the Second Circuit Court of Appeals rejected that argument, ruling that the nuisance law did not constitute a permissible exception under the Protection of Lawful Commerce in Arms Act. It reversed Judge Weinstein’s decision and ordered the suit dismissed. * * *

Gun makers have been sued dozens of times by city and state officials across the country, but no suit has ever been successful. New York City’s suit against the industry, in fact, went further toward a trial than most, said Andrew Arulanandam, a spokesman for the National Rifle Association.

The city of Gary, Ind., has so far been able to pursue its own case against the gun industry in the Indiana state court system. When he was New York State’s attorney general, Eliot Spitzer tried to sue gun makers in the New York courts, but the suit was dismissed in 2003 when a state appellate court ruled that there was no reasonable legal claim in his complaint.

The New York Law Journal also has a story today, headed "2nd Circuit Dismisses NYC's Suit Against Gun Manufacturers: Gun makers found insulated under U.S. law."

More about the Gary case: This ILB entry from Oct. 29, 2007, is headed "COA issues ruling today in Smith and Wesson case." See also this list of "Smith and Wesson" entries. For background on the case, start with this ILB entry (2nd half) from Sept. 8th, including links to the Indiana Supreme Court's 2003 ruling and then Lake Superior Court Civil Division 5 Judge Robert Pete's Oct. 6, 2006 ruling that "a year-old federal law shielding gun makers from lawsuits" was unconstitutional.

Where is the Gary case now? A check of the Clerk's docket (45 A 05 - 0612 - CV - 00754 SMITH AND WESSON ET AL. -V- CITY OF GARY Interlocutory) shows that Appellants' motion for rehearing was denied 1/9/08, that Appellants' motion for transfer was filed 2/7/08, that briefs have been filed, and that Appellants' motion for oral argument was filed 3/17/08.

Posted by Marcia Oddi on May 1, 2008 08:27 AM
Posted to Courts in general

Ind. Courts - Yet more on: Judicial mandate mentioned in Carroll County

Updating this ILB entry from April 16th (and this list of earlier entries), Debbie Lowe reports today in the Carroll County Comet:

Things were looking up for Carroll County Council through most of its Tuesday morning meeting. It seemed the latest communication with the Indiana Department of Local Government Finance (DLGF) would solidify the 2008 budget after making drastic reductions for the past several months in the first draft. However, council members learned at the very end of the meeting that Carroll Superior Judge Jeffrey Smith and Carroll Circuit Court Judge Donald Currie would issue a mandate to reinstate the latest budget reductions for their courts and the joint courts.

Council reduced the three courts' budgets by $90,000 earlier in the year. Salaries for the chief probation officer and the probation secretary were transferred from the general fund to the probation account. Using figures from budget worksheets prepared during the reductions session, the cost of the mandate to county general could be at least $143,130.86.

"Judge Currie and I will be proceeding as indicated," Smith told council members from the back of the commissioners meeting room at the end of the meeting. "We will all incur attorney fees." * * *

Smith said in a follow-up interview Tuesday afternoon he and Currie intended to "make sure the courts will have what they needed to function." Smith would not state when the judges intended to file the petition and refused to comment further about the matter.

"I'm terribly disappointed with the judges," Abbott said Tuesday afternoon. (He was not present in the meeting when Smith announced the intention to file a mandate.) "For them to exercise the right to mandate just because they can doesn't make it right. I know it's not a perfect system, but at this time they should work with us."

"They get to hide behind their pow- ers to mandate and that's wrong," he continued. "Mike Durr (EMS director) and Tony Burns both worked with us. I wish the judges had the same attitude. We looked at every office for cuts and sacrifices. What does this say to the other offices and department heads that don't have the same power? It's been a hard time for the county employees."

Posted by Marcia Oddi on May 1, 2008 08:13 AM
Posted to Indiana Courts

Wednesday, April 30, 2008

Ind. Gov't. - More on: Wondering if you can vote in the Democratic primary?

Updating this ILB entry from March 27th, West Coast law professor Rick Hasen of the Election Law Blog has a piece today in Slate that begins:

Set aside, for a moment, the Supreme Court's decision Monday upholding Indiana's voter-identification law. It's another little-noticed election law in the state that could come into play during next week's Clinton-Obama contest for the Democratic presidential nomination. Republicans and independents can vote in Indiana's Democratic primary. But this quirky state law gives voters the right to challenge other voters at the polls for not being sufficiently loyal to the political party in whose primary they are voting.

Posted by Marcia Oddi on April 30, 2008 07:03 PM
Posted to Indiana Government

Courts - "Supreme Court is rejecting broad legal challenges"

A must read analysis today of several recent Supreme Court rulings, by David G. Savage of the Los Angeles Times, deals with facial challenges and narrowly drafted opinions. A few quotes:

The Supreme Court's recent rulings upholding Indiana's voter ID law and Kentucky's use of lethal injections reflect a subtle but profoundly important shift in how the justices decide constitutional questions.

In the past, the court was willing to strike down laws before they went into effect out of concern that the rights of some people might be violated. For example, the justices used that approach to void laws that regulated abortion or restricted pornography on the Internet.

But since Chief Justice John G. Roberts Jr. joined the court three years ago, that approach has been cast aside. Broad and sweeping attacks on state laws have met with defeat.

Instead, Roberts and his colleagues have been sending a new, sterner message to legal advocates: Produce evidence that a law has actually violated someone's rights, and name names if you can. Only then might the court rule that a law is unconstitutional for those in the same situation.

The high court's newfound skepticism toward broad legal challenges was on display Monday when the justices, in a 6-3 decision, upheld Indiana's law requiring voters to show photo identification at their polling places.

As with recent rulings rejecting broad challenges to laws on "partial-birth" abortions and lethal injections to carry out the death penalty, the court ruled that the plaintiffs had failed to prove their cases. In Indiana, for example, the challengers did not point to a single voter who had been deterred or discouraged from casting a ballot because of the need to obtain a photo identification from the state. * * *

"On the basis of the record that has been made in this litigation, we cannot conclude that the [Indiana] statute imposes excessively burdensome requirements on any class of voters," Stevens wrote. * * *

Election law experts were quick to say it was a mistake to have rushed the voter ID case to the Supreme Court before there was any evidence of its actual effects.

Ohio State University law professor Daniel P. Tokaji said the Indiana ruling carried "an important lesson for voting rights lawyers who lose in lower courts: Think long and hard before seeking Supreme Court review," he wrote on an election law blog. "It's fair to point out that plaintiffs' lawyers put together a pretty weak case."

After losing before a judge in Indiana and the U.S. Court of Appeals in Chicago, they took their case to the Supreme Court, and finished 0 for 3.

Posted by Marcia Oddi on April 30, 2008 06:51 PM
Posted to Courts in general

Ind. Decisions - Supreme Court declares search illegal in decision today

In Sergio Campos v. State of Indiana, a 13-page, 5-0 opinion, Justice Boehm writes:

This case involves a traffic stop resulting in a vehicle search that uncovered cocaine. We hold that there was no probable cause to conduct the search, so consent was required. Because the officer communicated to the occupants of the car that consent to search was “necessary,” the ensuing purported consent was invalid. The search therefore violated both the Indiana and Fed-eral Constitutions, and the seized cocaine may not be admitted in evidence.

A second issue arises because the two occupants of the car were seated in a police cruiser while the search proceeded, and they made incriminating statements which were recorded on the cruiser’s video-tape of the stop. The recorded statements are admissible in evidence. Although the statements were an indirect product of an unlawful search, they were freely given and not the result of unlawful interrogation.

Posted by Marcia Oddi on April 30, 2008 03:11 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 21 NFP), including an appeal lost in the Clerk's office until last month [UPDATED]

For publication opinions today (3):

In Cory Pierce, Judith McIntosh, Thomas Ferrara, Judy Willis, et al v. State of Indiana Dept. of Correction, et al , a 28-page opinion, Judge Sharpnack writes:

Cory Pierce, Judith McIntosh, Thomas Ferrara, Judy Willis, Linda McHargue, and all other institutional teachers at a juvenile correctional facility who are not certified for teaching special education (the “Teachers”) appeal the trial court’s denial of their motion for judgment on the record. The Teachers raise one issue, which we revise and restate as, whether the trial court erred by affirming the State Employees’ Appeals Commission’s (“SEAC”) decision that the Indiana Department of Correction (“DOC”) could require all juvenile correctional facility teachers to obtain special education licenses. On cross-appeal, the DOC, et al., argue that the trial court improperly ordered the DOC to comply with the SEAC’s recommendations. We affirm in part and reverse in part. * * *

In summary, we conclude that the administrative law judge and the SEAC did not exercise jurisdiction over the issues the recommendations address. Any “recommendation” made by the SEAC did not involve a specific case and therefore does not constitute a mandatory recommendation. Thus, the trial court improperly ordered the DOC to comply with the SEAC’s recommendations.

In City of Clinton, Indiana v. Todd Goldner, a 15-page opinion, Judge Sharpnack writes:

The City of Clinton appeals the trial court’s grant of summary judgment to Todd Goldner. The City raises three issues, which we revise and restate as: I. Whether the trial court erred by granting Goldner’s motion for summary judgment; and II. Whether the trial court abused its discretion by awarding Goldner liquidated damages and attorney fees pursuant to the Wage Payment Statute. We affirm in part, reverse in part, and remand. * * *

Here, the designated evidence reveals that the Mayor told Goldner that his request to return to work would be granted as soon as work became available. In effect, the Mayor suspended him for more than five days.3 Ind. Code § 36-8-3-4 grants the Board, not the Mayor, the power to suspend Goldner. See Town of Highland v. Powell, 168 Ind. App. 123, 127-128, 341 N.E.2d 804, 807-808 (1976) (holding that police officer was discharged in violation Ind. Code § 18-1-11-3, a predecessor to Ind. Code § 36-8-3-4). Thus, we conclude that the trial court did not err by granting Goldner’s motion for summary judgment and by denying the City’s motion for summary judgment. * * *

Here, Goldner did not render labor or service for the period between October 24, 2005, and April 12, 2006. Thus, we conclude that the Wage Payment Statute is not applicable. * * * Thus, we conclude that the trial court abused its discretion by awarding Goldner liquidated damages and attorney fees. * * *

For the foregoing reasons, we affirm the trial court’s grant of Goldner’s motion for partial summary judgment, reverse the trial court’s award of liquidated damages and attorney fees, and remand for proceedings consistent with this opinion. Affirmed in part, reversed in part, and remanded.

In Jamie Hieston v. Gregory Hendricks, et al, a 14-page opinion, Judge Vaidik writes:

Brown v. Brown, 849 N.E.2d 610 (Ind. 2006), established a bright-line test for determining when Social Security disability payments should be credited toward a child support arrearage. Brown determined that a disabled parent is entitled to credit against the parent’s child support obligation for Social Security benefits paid to a child effective as to the date the parent files a petition to modify a support order. Accordingly, we find that Mother cannot receive credit for the lump sum payments of retroactive Social Security disability paid to her children for arrearages accumulated before she filed a petition to modify her child support. This is so even though the trial court and the Title IV-D Prosecutor were aware that she had filed a Social Security disability claim nearly two years before she filed her petition to modify support.

Further, Brown dictates that any prospective Social Security disability payments that exceed the modified child support amount are to be considered as a gratuity to the children and shall not be applied as a credit toward any arrearages. As such, the trial court erred in crediting those prospective payments toward the arrearage. We, therefore, affirm in part, reverse in part, and remand.
----------------
[1] As we have pointed out in Lake County Board of Elections & Registration v. Copeland, 880 N.E.2d 1288, 1290-91 (Ind. Ct. App. 2008), reh’g denied, and Gilbert v. State, 874 N.E.2d 1015, 1015 n.1 (Ind. Ct. App. 2007), trans. denied, we have recently become aware of some difficulties in receiving the prompt transmission of fully-briefed appeals to our court. Indeed, briefing was complete in the present case on July 31, 2007, when Mother filed her Reply Brief, but the case was not transferred to our court until March 18, 2008—a delay of over seven months. We remind counsel that 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.

NOTE that this case was lost in the Clerk's office until last month. And although the Court urges attorneys to check the online docket to make sure their briefed cases have been submitted to the judges, the Clerk has inexplicably been removing entire categories of appeals, such as juvenile appeals, completely from the online docket.

For example, here is an opinion issued last Friday, April 25th, in the case of In The Matter of B.F. and T.F., Children in Need of Services, Audrey Faver v. Marion County Department of Child Services, and Child Advocates, Inc. . The docket number is 49A05-0709-JV-515. The ILB just looked up that case in the online Clerk's docket. It does not exist in the docket.

In other words, anyone looking to see if the case had been appealed would not find it in the docket; the first notice of the appeal would have been the issuance of the COA's opinion. And no attorney in the case would have been able to check the online docket, as the COA appeals has been suggesting, because there is no docket at all for the case.

For background, start with this ILB entry from April 3rd.

[UPDATED] Here is a case that the ILB had not caught before, an April 10th NFP opinion in the case of Term. of Parental Rights of A.B., Violet Tunstall v. Dearborn County Div. of Child Services. The Court included the same footnote, ending with: "We remind counsel that 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." So the ILB just checked the docket for the docket number 15A01-0612-JV-540. There is NO online docket for this case!

NFP civil opinions today (7):

Candice Lloyd v. Terry Lloyd (NFP) - "Candice Lloyd appeals from the trial court’s order dissolving the marriage between her and Terry Lloyd, dividing their marital property, and denying her request for attorney’s fees. Candice raises three issues, which we restate as: 1) whether the trial court abused its discretion in awarding Terry more than half of the marital estate; 2) whether the trial court’s valuation of Terry’s pension is clearly erroneous; and 3) whether the trial court abused its discretion in denying Candice’s request for attorney’s fees. Concluding that the trial court’s finding regarding the value of Terry’s pension is clearly erroneous, we reverse and remand. However, we affirm the trial court in all other respects."

Donald Smith v. Beth (Smith) Dial (NFP) - "The trial court concluded that Father’s current child support obligation is offset by the Social Security disability payments currently received by Mother, but that Father was not entitled to credit against his support arrearage for the Social Security disability payment. The court also concluded that parties never agreed that Father’s child support obligation should be permanently modified to $40 per week. Father appeals and argues that the parties agreed to modification of child support in 2004, and therefore, he is entitled to credit against his support arrearage for the 2006 Social Security disability payment. We affirm."

Keith Myers v. Wesley C. Leedy (NFP) - "Myers raises one issue, which we restate as whether the trial court’s conclusion that Leedy’s interest in the property as a tenant survived the forfeiture of his landlord’s land sale contract is clearly erroneous. We reverse and remand."

Regina C. Kerber and Dennis L. Guthrie v. Don C. Guthrie (NFP) - "Concluding that the trial court could not order reformation when it was not requested by the parties but that the trial court’s findings and conclusions support the imposition of a constructive trust as sought in Dennis and Regina’s complaint, we reverse and remand."

Timothy A Thomas v. City of Hammond (NFP) - "Timothy A. Thomas appeals the termination of his employment as a member of the Hammond Police Department by the City of Hammond Board of Public Works and Safety (“the Board”). We affirm."

Janet H. Devittorio v. Joseph M. Devittorio (NFP) - "The trial court’s findings and conclusions in favor of Joseph on the issues of modification of the property equalization payment and mortgage/alimony payments is supported by the evidence. The trial court did not err."

Invol. Term. of Parent-Child Rel. of D.D. and Rhonda D. v. Marion Co. Dept. of Family & Children and Child Advocates (NFP) - "Rhonda D. (“Mother”) appeals the termination of her parental rights to her son, D.D. As the juvenile court’s judgment is supported by clear and convincing evidence, we affirm."

NFP criminal opinions today (14):

Michael A. Allen v. State of Indiana (NFP)

Otis Freshwater v. State of Indiana (NFP)

Fernando R. Ramirez v. State of Indiana (NFP)

Craig Reveter v. State of Indiana (NFP)

Nathanial Dodson v. State of Indiana (NFP)

Phillip Collins v. State of Indiana (NFP)

Leo Dent v. State of Indiana (NFP)

Christopher Gibbs v. State of Indiana (NFP)

Robert Karr v. State of Indiana (NFP)

Kathy Jo Ward v. State of Indiana (NFP)

Steven Winners v. State of Indiana (NFP)

Montaz Lewis v. State of Indiana (NFP)

Ronald Adamson v. State of Indiana (NFP)

Michael L Schidler v. State of Indiana (NFP)

Posted by Marcia Oddi on April 30, 2008 01:40 PM
Posted to Ind. App.Ct. Decisions

Environment - "CAFOs rule Randolph commissioner race"

Randolph County has been the site of many CAFO battles, including an "intensive agricultural district " for Randolph County that would occupy 75.88 % of the county, and a moratorium on CAFOs. See ILB entries from Jan. 8th and Feb. 9th. Today Joy Leiker of the Muncie Star-Press, in writing about the upcoming contests for county council and board of commissioners, reports that:

The regulation of confined animal feeding operations (CAFOs) in Randolph County remains the biggest and most emotional issue in the county. After five years of study and discussion by the planning commission and a number of spin-off committees, county commissioners in January rejected an ordinance that would have created two agricultural districts in the county and limited CAFOs to an intensive district.

Posted by Marcia Oddi on April 30, 2008 09:34 AM
Posted to Environment | Indiana Government

Law - Interesting juxtaposition of legal views this week

Earlier this week the ILB pointed to Justice Scalia's 60 Minutes interview. After reading Jon Murray's story in the Indianapolis Star this morning headed "Brizzi aims to expand fetal homicide laws: Deaths of unborn twins lead prosecutor to seek language that includes any child in the womb," I Iooked back at the Scalia transcript to locate this quote:

"What is the connection between your Catholicism, your Jesuit education, and your judicial philosophy?" Stahl asks.

"It has nothing to do with how I decide cases," Scalia replies. "My job is to interpret the Constitution accurately. And indeed, there are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that's still in the womb the way you treat other human beings. I think that's wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons. You don't count pregnant women twice."

Posted by Marcia Oddi on April 30, 2008 09:17 AM
Posted to General Law Related | Indiana Law

Ind. Law - Well-known Merrillville attorney killed in car crash

From the Chicago Sun-Times:

CROWN POINT. A woman and three men -- including a well-known lawyer -- were killed Tuesday night in a three-vehicle crash in Crown Point, Ind. * * *

Garry Weiss, 53, of the 1700 block of Beachview Court in Crown Point, was dead on the scene with multiple blunt force trauma injuries, according to the spokesman, who said Weiss was driving the car.

Weiss was a well-known lawyer who recently defended Gary firefighter Carlton Davis Jr., who was convicted Tuesday of running a dogfighting operation out of his home. He was one of three full-time attorneys at the Law Offices of Garry A. Weiss P.C., in Merrillville, Ind.

The Gary Post-Tribune today has a report by Andy Grimm on yesterday's dogfighting verdict. It begins:

Animal rights activists Tuesday morning were applauding the conviction of Gary firefighter Carlton Davis Jr. on charges he trained fighting dogs and promoted dog fights.

"When I heard about it I cried," said Betty Clayton, director of the Humane Society of Northwest Indiana, who attended parts of Davis' six-day trial.

Posted by Marcia Oddi on April 30, 2008 08:50 AM
Posted to Indiana Law

Ind. Law - Is ACLU-Indiana on a losing streak?

Ken Kusmer of the AP uses the ACLU-Indiana loss Tuesday before the SCOTUS in the voter ID case to explore the question -- is the local ACLU on a losing streak? Some quotes:

The U.S. Supreme Court ruling that upheld the state's voter-ID law marked the latest in a series of high-profile setbacks for the American Civil Liberties Union of Indiana, but observers say that the trend speaks mostly to the conservative bent of the federal judiciary.
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Monday's 6-3 ruling, in which the court said states can require voters to produce photo IDs came on the heels of failed ACLU-Indiana challenges this month of Indiana's "In God We Trust" license plates and of a Bureau of Motor Vehicles policy to revoke driver's licenses if information doesn't match Social Security records.

It also followed a 7th U.S. Circuit Court of Appeals ruling in October tossing out an ACLU-brought lawsuit challenging sectarian prayer in the Indiana House because a group of taxpayers who sued over the practice did not have legal standing to do so.

Whether one supports the mission of the ACLU or opposes it, experts said, the losing streak underscores the conservative shift of the federal courts, especially since the confirmations of Chief Justice John Roberts and Associate Justice Samuel Alito more than two years ago.

"There is a losing streak of sorts in some of these high-profile cases," said Daniel Conkle, a First Amendment and constitutional law expert at Indiana University School of Law-Bloomington. However, that doesn't diminish the ACLU's role, he said.

"A group like the ACLU plays an important function in society in bringing cases that might be controversial," he said.

What does Kevin Falk have to say? Kusmer's story continues:

Ken Falk, ACLU-Indiana's legal director, rejected the notion that he was on a losing streak. He noted he and his two colleagues at ACLU-Indiana win many cases that go unnoticed by the media.

For instance, Falk said a case brought by inmates over conditions at the Elkhart County Jail resulted in the construction of a new $97.3 million lockup there in a case resolved earlier this month. Also, Franklin Community High School cleared a student's record and withdrew threats to punish him for refusing to stand during the Pledge of Allegiance after the ACLU threatened a lawsuit.

The very fact that the ACLU wins some of those cases underscores an important quality about U.S. law.

"We do nothing but take umbrage at what the government does," Falk said. "The fact that we are as successful as we are speaks to the strength of the American legal system."

He was philosophical about Monday's ruling. It was clearly a loss for the ACLU, he said, but the court left open the possibility it will reconsider such laws if attorneys can show they place an unreasonable burden on voters. "The law that's been established allows for future challenges. I think everybody would agree with that," Falk said.

Ind. Law - More on: Sommer Barnard may merge with Cincinnati firm

Updating this ILB entry from yesterday, Alexander Coolidge of the Cincinnati Enquirer reports today:

In its largest acquisition ever, downtown Cincinnati law firm Taft Stettinius & Hollister will acquire Indianapolis-based law firm Sommer Barnard.

The deal will add more than 100 attorneys to Taft's roster for a total of about 320 in nine offices across Ohio, Kentucky and Indiana as well as in China as of next month.

Financial terms were not disclosed. The merger will vault the regional practice to the nation's 125th-largest firm, up from 200th. The deal is expected to be final today.

"Greater scale enables us to do greater things," said Thomas Terp, Taft's managing partner. "This deal provides our clients a bigger and better toolkit."

Terp noted that both firms have strong corporate practices, but added that Sommer will provide Taft with attorneys specializing in insurance regulation, white-collar criminal defense and internal investigations.

He said Taft will provide Sommer clients with deeper labor law, tax, municipal finance and intellectual property expertise. No jobs will be eliminated, both sides said.

Though neither firm publishes a list of regular clients, the acquisition adds medical device giant Cook Group of Bloomington, Ind.; broadcaster Emmis Communications, and private-equity firm Hammond Kennedy Whitney & Co. to Taft's other high-profile client list that includes U.S. Bank, AK Steel, Children's Hospital and the Bengals.

Sommer's managing partner, Roberts Hicks, said law firms are under pressure to bulk up as corporate clients go multinational and their legal needs become more complex. * * *

Hicks will become partner-in-charge of Taft's Indianapolis office, which will become Taft's second-largest with 105 attorneys, compared with the Cincinnati office that has almost 130.

The new deal, which was negotiated over two years, easily dwarfs past Taft acquisitions.

Posted by Marcia Oddi on April 30, 2008 08:23 AM
Posted to Indiana Law

Tuesday, April 29, 2008

Ind. Gov't. - "Advocacy groups say Indiana's law, regulations are among top 6 in nation"

The Indianapolis Star has a story today by David Crary of the AP, along with Tim Evans of the Star, which begins:

NEW YORK -- Indiana was cited among national leaders for its policies and laws regarding the release of information about deadly and life-threatening child abuse cases, according to a new report today by two child advocacy groups.

Indiana was among six states to receive a grade of A or A minus in the report issued by First Star, a national nonprofit that advocates for abused children, and the University of San Diego School of Law's Children's Advocacy Institute.

"The reason Indiana did so well is because they have a state law that is easy to access and, most importantly, makes the release of information mandatory," said Amy Harfeld, First Star's executive director and a co-author of the report.

Harfeld said Indiana got the A minus because the state law on what should be released is "fairly vague."

The report, "State Secrecy and Child Deaths in the United States," a report by the Children's Advocacy Institute at the University of San Diego and First Star, is available here.

[Possibly more later]

Posted by Marcia Oddi on April 29, 2008 04:01 PM
Posted to Indiana Courts | Indiana Government | Indiana Law

Ind. Decisions - Court of Appeals issues 6 today (and 5 NFP)

For publication opinions today (6):

In General Casualty Insurance Co. v. Diana Bright, a 5-page opinion, Judge Sharpnack writes:

General Casualty Insurance Company (“General Casualty”) appeals the trial court’s grant of Diana Bright’s motion to dismiss. General Casualty raises one issue, which we revise and restate as whether the trial court erred when it dismissed General Casualty’s complaint. We reverse and remand. * * *

We hold that the clause providing that a suit be brought within one year after the date of the loss unambiguously refers only to suits against General Casualty, as its heading indicates, and not to General Casualty’s claim against Bright.

In Fifth Third Bank v. PNC Bank, Indiana, Inc., John O. Sturdy, Jr., Diana K. Sturdy, Sturdy Construction, John W. Waggoner, Young, Lind, Entres & Kraft Title Co. LLC. , a 7-page opinion, Judge Bradford concludes:

Fifth Third contends that the trial court abused its discretion in that its order did not punish PNC, the disobedient party. We agree with Fifth Third. Both the wording of Trial Rule 37 and our jurisprudence indicate that the sanctions to be imposed pursuant to a violation of a discovery order should be to the detriment of the offending party, and we see none to PNC here.1 Although there was some benefit conferred on YLEK, an order issued for the purpose of benefiting the offended party does not serve any of the purposes for Trial Rule 37 that we have recognized unless it also punishes the offending party.2 Here, due to the relationship between the parties, the trial court’s order has benefited YLEK and harmed Fifth Third, without punishing PNC in the least. In the end, we fail to see how an order that does not punish PNC would aid in ensuring compliance with future discovery orders or prevent PNC from profiting from its intransigence. We therefore conclude that the trial court abused its discretion in crafting an order that failed to punish PNC and reverse its dismissal of YLEK from the case. On remand, if the trial court concludes that sanctions are still justified, it is instructed to impose sanctions in a manner consistent with this opinion and Trial Rule 37 that serves to punish PNC for its failure to comply with discovery orders.

In In the Matter of the Adoption of L.M.R., Ricky Rybolt and Margaret Rybolt v. Bobbie Sue Brooks, a 14-page opinion, Judge Riley writes:

Appellants-Petitioners and Respondents, Margaret (Grandmother) and Ricky Rybolt (Grandfather) (collectively, the Grandparents), appeal the trial court’s Order denying their Petition for Adoption of L.M.R. in favor of Appellee-Respondent and Petitioner, Bobbie Sue Brooks (Brooks). We affirm.

Joyce Hawkins v. State of Indiana - "The trial court did not abuse its discretion by allowing Sergeant Kelly to testify regarding his opinion of how Tim was shot and a crime concealed. The trial court properly admitted Joyce’s confession, prison phone calls, and prison letters. The trial court did not err in excluding the other conversations on the CD. Additionally, the evidence was sufficient to support Joyce’s conviction for murder. Affirmed."

Gary D. Beer v. State of Indiana - "For the foregoing reasons, we affirm Beer’s convictions and sentence for three counts of dealing in cocaine as class A felonies, unlawful possession of a firearm by a serious violent offender, dealing in a narcotic drug with intent to deliver, and maintaining a common nuisance as a class D felony. Affirmed."

In Leslie G. Miller v. State of Indiana, a 17-page opinion, Judge Riley concludes:

Based on the foregoing, we conclude that the evidence is sufficient to support Miller’s conviction for child molesting as a Class A felony; that the trial court did not violate Miller’s Blakely rights in sentencing him; that Miller’s sentence is not inappropriate; and that the trial court erred in failing to inquire into Miller’s ability to pay before making the payment of $10,770.00 to the Jennings County Prisoner Reimbursement Fund a condition of Miller’s probation. Therefore, we remand this cause to the trial court to either make a proper inquiry into Miller’s ability to pay or to remove the reimbursement order as a condition of Miller’s probation.

NFP civil opinions today (2):

Thomas Pottschmidt v. GDI Construction Corp. (NFP) - "Appellant/Plaintiff/Cross-Appellee Thomas Pottschmidt appeals from the trial court’s order granting Appellee/Defendant/Cross-Appellant GDI Construction’s (“GDI”) motion for summary judgment. Specifically, Pottschmidt contends that issues of material fact remain and thus the granting of GDI’s motion for summary judgment was inappropriate. Pottschmidt also contends that, as a matter of law, an oral employment contract cannot be altered by a subsequent offer of employment letter. On cross-appeal, GDI challenges whether the trial court improperly dismissed its request for attorney’s fees and costs incurred in defending Pottschmidt’s claims. We affirm."

Commitment of H.H. v. The Health and Hospital Corp. of Marion County, d/b/a Wishard Health Services, et al (NFP) - "H.H. appeals an order granting the petition, filed by the Health and Hospital Corporation of Marion County, d/b/a Wishard Health Services/Midtown Community Mental Health Center (“Midtown”),1 for his involuntary regular commitment. H.H. asserts that there was insufficient evidence to establish that he was dangerous to others. We affirm."

NFP criminal opinions today (3):

Dean Maust v. State of Indiana (NFP)

Kelli Plump v. State of Indiana (NFP)

Bertha Bedwell v. State of Indiana (NFP)

Posted by Marcia Oddi on April 29, 2008 01:20 PM
Posted to Ind. App.Ct. Decisions

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

In Gerald C. Ellis v. United Parcel (SD Ind., Judge Young), a 14-page opinion, Judge Evans writes:

This case centers around United Parcel Service’s nonfraternization policy, which forbids a manager from having a romantic relationship with any hourly employee, even an employee the manager does not supervise. The purpose of this policy, according to UPS, is to prevent favoritism and the perception of favoritism. The policy extends to workers outside of a manager’s supervisory authority because UPS says it frequently transfers managers and a manager could end up supervising any hourly employee. Unsurprisingly, this policy does not stop Cupid’s arrow from striking at UPS. As the discovery taken in this case reveals, intracompany dating is prevalent, although employees often take precautions to keep their relationships secret. Gerald Ellis was one such employee, but, unfortunately for him, he got caught. Ellis, who is an African-American, sued UPS claiming it fired him because of his race and because he is married to a white woman, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and 42 U.S.C. § 1981. The district court granted summary judgment for UPS, and Ellis appeals.
[Judge Evans, who concludes that UPS was entitled to summary judgment on all counts, then writes:]
In closing, we emphasize that our decision today should not be construed as an endorsement of the UPS nonfraternization policy. When a company like UPS runs expensive ads that ask “What can Brown do for you?” it might be wise for it to ask if this policy is really worth all of the fuss this case has created. As we observed in Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1353 (7th Cir. 1995):
As the work force grows and people spend more of their time at work, the workplace inevitably becomes fertile ground for the dating and mating game. It is certainly not unusual, and it may even be desirable, for love to bloom in the workplace. Contiguity can lead to sexual interest, which can lead to soft music, candlelight dinners, serious romance, and marriage, or any stops along the way.
By all accounts, Ellis was a good employee. He started with UPS as a driver right out of high school in 1979 and worked his way up to a managerial position. After 21 years with the company, he met a woman, apparently fell in love, and, after a 4-year relationship, got engaged. A year later he got married. That’s a fairly nice story, and so is the fact that Ellis and his wife were smooching at a summer concert several months after their wedding. Heck, some marriages today don’t even last that long. Although UPS, for the reasons we have stated, comes out on top in this case, love and marriage are the losers. Something just doesn’t seem quite right about that. The judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on April 29, 2008 01:11 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court rules re duty of broker

In Tonda Beth Nichols v. Rex David Minnick & R. David Minnick, Inc., d/b/a Commercial Properties, an 8-page, 5-0 decision, Justice Boehm writes:

We hold that a broker who breaches his fiduciary duty to disclose material information to his client loses his right to receive a commission for his services. * * *

The trial court’s order is reversed and the case is remanded with instructions to enter judgment ordering Minnick to assign to Nichols the note representing his commission and to disgorge to Nichols any payments received on that note, with interest on those payments at the statutory rate of eight percent per annum pursuant to Indiana Code section 24-4.6-1-101 (2004).

Posted by Marcia Oddi on April 29, 2008 10:17 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Appeals court upholds Glenn murder conviction"

The April 15th decision of the Court of Appeals in the case of Ronald Glenn v.State of Indiana (see ILB entry here - 3rd case) was the subject of a story yesterday in the Martinsville Reporter-Times by Keith Rhoades. A quote:

The court ruled the 30-year sentence for his conviction of robbery causing serious bodily injury, however, violated the double jeopardy standard and his prison sentence for that charge should be vacated by the trial court.

The court ruled that even though Judge Brian H. Williams did merge the sentences, he did so after announcing them. The court said the merging should have been done before announcing the sentences.

Robert Cline, Morgan County chief deputy prosecutor/acting prosecutor, said the court ruling will not affect the amount of time Glenn spends in prison.

Cline said it is a technical matter in the case. He said for the state to charge felony murder, it had to have the robbery charge. Cline said Glenn still has the 50 year sentence that means he will spend at least 25 years in prison.

Posted by Marcia Oddi on April 29, 2008 09:30 AM
Posted to Ind. App.Ct. Decisions

Ind. Law - Sommer Barnard may merge with Cincinnati firm

Ted Evanoff of the Indianapolis Star reports today in a story that begins:

Partners at the Indianapolis law firm Sommer Barnard will vote today on merging their company into Taft Stettinius & Hollister of Cincinnati, two people knowledgeable about the deal confirmed Monday.

A merger would unite nationally known Taft, a law firm that traces to the 1880s, with far-younger Sommer, a 100-attorney Indianapolis firm reputed to be a tenacious defense litigator.

Although a deal would bring a new rival into the Indianapolis legal business, it was not clear Monday how Taft might differentiate itself from the established law firms already in place. About 1,500 lawyers are associated with the metro area's dozen largest legal firms.

Law firms searching for higher revenue have been merging throughout the nation for more than a decade, a trend that experts say is not expected to catch on soon in Indianapolis for reasons peculiar to the legal business. Experts suggest a deal could help Taft gain clients in Indianapolis, which has one of the Midwest's strongest economies, and enhance the Ohio firm's corporate defense practice.

"Taft is known as what you might call a silk stocking firm, doing primarily corporate and defense work,'' said Indianapolis lawyer Irwin Levin, managing partner at Cohen & Malad. "I would say, just by reputation, the Sommer Barnard lawyers are known as being very innovative. It's not perceived as being a stuffy law firm. One can only wonder what the culture will be'' after a merger.

Posted by Marcia Oddi on April 29, 2008 09:24 AM
Posted to Indiana Law

Courts - Still more on: Supreme Court rejects voter ID law challenge

New or expanded stories today in the Indiana voter ID ruling yesterday by the Supreme Court.

Lesley Stedman Weidenbener of the LCJ reports here. The Fort Wayne Journal Gazette's Sylvia Smith's story has been expanded and appears here.

Tony Mauro of Legal Times writes:

The Indiana law won the support of six justices, who divided on the rationale. The main opinion in Crawford v. Marion County Election Board, authored by Justice John Paul Stevens, found that the state's interest in protecting the integrity of the voting process outweighed the insufficiently proven burdens the law imposes on voters.

"The evidence in the record is not sufficient to support a facial attack on the law," wrote Stevens, who was joined by Chief Justice John Roberts Jr. and Justice Anthony Kennedy.

The Stevens opinion also acknowledged that all of the state's Republican legislators, and none of the Democrats, voted for the law in 2005. But partisan motivation does not invalidate a law, Stevens said, as long as there are "valid neutral justifications" such as reducing voter fraud.

Justice Antonin Scalia, joined by Justices Clarence Thomas and Samuel Alito Jr., wrote separately to assert that the burden on voters imposed by the law is "minimal and justified" and therefore no further inquiry about the nature of the burden is needed.

While the opinion leaves open the possibility of an "as applied" challenge by actual voters who show the law disadvantaged their right to vote, analysts on both sides indicate the Court's opinions will make it difficult for those suits to succeed.

Even the dissenters recognized the state's interest in preserving the integrity of the elections, and none of the justices embraced the difficult-to-meet strict scrutiny standard urged by the challengers to Indiana's law, says Thor Hearne of Lathrop & Gage.

"This should shut the door on efforts to manipulate the election process by lawsuit," says Hearne, who wrote a brief for members of Congress who favored the Indiana law.

"This opinion will be read as a green light for the enactment of more partisan election laws in an attempt to skew outcomes in close elections," wrote Richard Hasen, a professor at Loyola Law School Los Angeles, on his widely read Election Law Blog. Hasen wrote a brief on the side of challengers to the law.

Hasen adds that if laws like Indiana's must now be challenged "as applied," that is "going to make it tough for a lot of plaintiffs who are burdened" to make their case.

Robert Barnes' story yesterday for the Washington Post is expanded here this morning.

Warren Richey of The Christian Science Monitor has this story, subheaded "Monday's ruling gives a green light to aggressive antifraud efforts often favored by the GOP."

Linda Greenhouse of the NY Times has a lengthy story this morning. Some quotes:

Six states in addition to Indiana — Florida, Georgia, Hawaii, Louisiana, Michigan, and South Dakota — now require voters to provide photo identification before casting a ballot. Bills are pending in two dozen other states, although they are not likely to pass this year in more than a handful, due to short legislative sessions and Democratic opposition.

The Indiana law, adopted by the Republican-controlled legislature in 2005 without a single Democratic vote, is regarded as the strictest in the country. It requires a voter to present a photograph as part of an unexpired document issued either by Indiana or the federal government, a requirement that in most cases can be satisfied only by a current driver’s license or a passport. The state’s motor vehicle agency provides a free photo ID card for people who do not drive, but obtaining it requires a “primary document” like an original birth certificate or a passport. * * *

The Indiana law was challenged in separate suits filed by the Indiana Democratic Party and by another group of plaintiffs that included elected officials and community groups. The plaintiffs argued that the state had failed to justify a requirement they said would place a special burden on thousands of eligible voters in Indiana who lack driver’s licenses, a group that disproportionately includes the poor, the elderly and people with disabilities.

The plaintiffs lost, both in Federal District Court in Indianapolis and in the United States Court of Appeals for the Seventh Circuit, in Chicago. Writing for the 2-to-1 majority at the appeals court, Judge Richard A. Posner agreed with the plaintiffs that the law would have the greatest impact on people who were “low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates.” While that fact gave the Democratic Party standing to sue, he said, it did not make the law unconstitutional.

The suits were filed before the statute took effect, challenging the law “on its face.” This technique, known as a “facial challenge,” has been a staple of election litigation, based on the notion that once an election has taken place, the asserted damage has been done and it is too late to make judicial amends.

A debate over the legitimacy of a facial challenge in the voter ID context did not enter this case until the Bush administration filed a brief at the Supreme Court stage supporting Indiana. Solicitor General Paul D. Clement told the court in his brief that, as a facial challenge, the suit was premature and based on nothing more than “speculation and as-yet untested evidence.” In the decision on Monday, Crawford v. Marion County Election Board, No. 07-21, the Supreme Court did not go quite so far as to make facial challenges unavailable. But Justice Stevens said in his opinion that in their effort to invalidate the statute in all its applications, the plaintiffs failed to carry their “heavy burden of persuasion,” given the weight of the state’s interest in election integrity.

In his dissenting opinion, which Justice Ginsburg also signed, Justice Souter examined the case from the opposite end of the telescope. Given that there was “no evidence of in-person voter impersonation fraud in a state, and very little of it nationwide,” he said it was Indiana’s job to justify placing even a slight burden on even a limited number of people. “The interest in combating voter fraud has too often served as a cover for unnecessarily restrictive electoral rules,” Justice Souter said.

Justice Breyer, in a separate dissenting opinion, compared Indiana’s law with those in Georgia and Florida, which also require photo identification but accept a range of more broadly accessible documents. Florida accepts student identification cards, employee badges and cards from neighborhood associations, for example, and accepts a provisional ballot as long as the voter’s signature matches one on file. Indiana has not justified its “significantly harsher” requirements, he said.

The vote of Justice Stevens, a reliable anchor of the court’s liberal bloc, was something of a surprise. Some speculated that his strategic aim was to keep Chief Justice Roberts and Justice Kennedy from joining the Scalia camp. Edward B. Foley, an election law expert at Ohio State University, said the Stevens opinion might represent an effort to “depoliticize election law cases.”

Also in the NY Times today, a report by Ian Urbina headed "Decision Is Likely to Spur Voter ID Laws in More States," that examines the potential impact of the decision.

For earlier ILB coverage on yesterday's opinion and what led up to it, see this long list of ILB entries on "voter ID".

Posted by Marcia Oddi on April 29, 2008 08:52 AM
Posted to Ind. (7th Cir.) Decisions

Monday, April 28, 2008

Courts - More on: Supreme Court rejects voter ID law challenge

Maureen Groppe of the Indianapolis Star Washington Bureau has this coverage of today's voter ID decision. Sylvia Smith, the Fort Wayne Journal Gazette's Washington editor, has this report.

David Stout of the NY Times has this article this afternoon. Robert Barnes of the Washington Post has this story. David Savage of the LA Times reports here.

Ben Adller of Politico has a story headlined: "Activists: Ruling hurts youth voters." Some quotes:

In Indiana, voters must present a government-issued photo identification card with the one’s current address at the voting booth.

Young people, because they move residences frequently, are less likely to have such an ID. For instance, Rock the Vote’s February poll of 18-29 year olds found that 19 percent of respondents did not have a photo ID with their current address on it.

Student voting-rights activists had hoped that the Indiana law would allow a broader spectrum of identification cards, including student IDs, to meet the requirement. But many schools’ identification cards will not qualify.

“Student identification from a private university in Indiana is not an acceptable form of identification,” explained Tova Wang, Common Cause’s vice president for research. “It’s now been reported that public universities like Ball State and Purdue won’t be able to use IDs because they don’t have expiration dates, which are required,” she added. * * *

Other youth activists point out that many young people do not have driver’s licenses. “This will particularly affect young voters in larger cities who do not have cars,” B. Lee Drake, southwest regional director of the College Democrats of America, wrote in an email. “In addition to making it more difficult for younger people to vote, this also adversely affects the poorer members of Indiana communities who don’t have photo ID.”

In Milwaukee County, Wisconsin, nearly three-quarters of African Americans and fully two-thirds of Hispanics aged 18 to 24 did not have a valid driver’s license.

Here is the ILB's entry from earlier today.

Posted by Marcia Oddi on April 28, 2008 04:14 PM
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Jon S. Johnson v. Stephon Blackwell, et al , a 12-page opinion, Judge Vaidik writes:

Following his conviction in federal district court for possession with intent to distribute crack cocaine, the Seventh Circuit reversed Jon S. Johnson’s conviction in 2005, and the indictment against him was dismissed in 2006. Nearly four years after his February 27, 2003, arrest, Johnson filed a complaint against Stephon Blackwell, Cliff Cole, the Anderson Police Department, and the Madison County Sheriff’s Department (collectively “Defendants”) on November 21, 2006, in Marion Superior Court alleging civil rights violations, false imprisonment/false arrest, wrongful infliction of emotional distress, and invasion of privacy by intrusion. Finding that these causes of action accrued when Johnson was arrested or bound over for trial in 2003 and that the doctrines of continuing wrong and fraudulent concealment do not operate to toll the statute of limitations, we conclude that Johnson’s complaint is barred by the two-year statute of limitations for injury to person. We therefore affirm the trial court.

NFP civil opinions today (2):

Jan Hayden v. Thomas Lilley (NFP) - "Jan Hayden appeals the trial court’s decision in a contract dispute involving the failed sale of her property to Thomas Lilley. * * *

"The trial court’s conclusions regarding Lilley’s breach and the return of the $110,000 are contradictory and not supported by the findings. We also conclude that Hayden is entitled to the attorney fees accrued defending Lilley’s action. We reverse and remand."

Joseph A. Galus v. Marycatherine Galus n/k/a Marycatherine Papp (NFP) - "Joseph A. Galus (“Husband”) appeals the trial court’s judgment ordering him to pay a portion of his child’s post-secondary education expenses. He raises one issue, which we restate as whether the trial court erred in its division of the parental portion of college expenses because the division was not in proportion to the parents’ resources. We affirm."

NFP criminal opinions today (4):

Dale C. Englehardt v. State of Indiana (NFP)

Raynard Shank v. State of Indiana (NFP)

Jonathan J. Birk v. State of Indiana (NFP)

Antonio Jefferson v. State of Indiana (NFP)

Posted by Marcia Oddi on April 28, 2008 01:48 PM
Posted to Ind. App.Ct. Decisions

Courts - Supreme Court rejects voter ID law challenge [Updated]

See the writeup by Lyle Denniston of SCOTUSBlog here. Some quotes:

The Supreme Court, voting 6-3, on Monday rejected a constitutional challenge to Indiana’s law requiring voters to show a photo ID before they may cast a ballot. Three Justices said the evidence offered against the requirement in Indiana did not support a challenge to the law as written — that is, a “facial” challenge, and three others said the law only imposed a minimal and justified burden on voters. Three Justices dissented. The decision, in the case of Crawford v. Marion County Election Board (07-21) and a companion case, was the only ruling of the day. * * *

Putting together the three votes of Justices who found the particular challenge to Indiana’s law wanting on the evidence, with the votes of the three dissenters, means, however, that a majority of the Court has not barred all future challenges to voter ID laws, provided future cases seek to test such laws as they were actually applied in a specific election. Still, the plurality opinion that announced the Court’s judgment – written by Justice John Paul Stevens — probably means that any such “as-applied” challenges would not be easy to make.

Here is the opinion. Here is initial AP coverage.

[Updated] Here is Rick Hasen's initial take on the ruling, via the Election Law Blog.

Posted by Marcia Oddi on April 28, 2008 10:41 AM
Posted to Courts in general

Law - More on "Ave Maria Law Wants To Sell Its Naming Rights"

Updating this entry from Dec. 19, 2007, a brief article by Julie Kay in today's National Law Journal is headed "Ave Maria to Relocate Law School Once Again." Some quotes:

Ave Maria School of Law, apparently unable to sell naming rights to its planned new building in Ave Maria, Fla., will instead move to an older building in nearby Naples. * * *

When the school started by Domino's Pizza founder Thomas Monaghan first announced in February 2007 it was moving from Ann Arbor, Mich., to the town Monaghan was starting in southwest Florida, the plan was to relocate to a posh new building. Drawings of the new school were even released.

The first signs of financial woe came in December 2007 when Ave Maria announced it wanted to sell naming rights to the building for $20 million to fund construction.

Apparently, there have been no takers. Instead, according to the press release, the school will move into modest digs -- the former Ave Maria University temporary campus 35 miles away.

Posted by Marcia Oddi on April 28, 2008 07:58 AM
Posted to General Law Related

Courts - Justice Scalia interview

CBS 60 Minutes host Leslie Stahl conducted a remarkable interview of Justice Antonin Scalia, broadcast last evening. You can read the transcript here, but I highly recommend that you watch the interview - links to Part I and Part II are available here.

Posted by Marcia Oddi on April 28, 2008 07:42 AM
Posted to Courts in general

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Wednesday, April 30th:

9:00 AM - James Butler v. Indiana Dep't of Insurance - After a partial settlement of this medical malpractice case, the Marion Superior Court held a bench trial and entered judgment for the Indiana Department of Insurance, Administrator of the Patient's Compensation Fund; the court ruled that Butler, personal representative of a deceased patient's estate, was not entitled under the Adult Wrongful Death Statute to recover damages for medical expenses originally billed but later written off. The Court of Appeals affirmed. Butler v. Indiana Dep't of Ins., 875 N.E.2d 235 (Ind. Ct. App. Oct. 22, 2007) [See ILB entry here - 10th case]. Butler has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorney for Butler; James Young of Indianapolis, IN. Attorneys for Indiana Dep't of Ins.; A. Richard M. Blaiklock and Stephanie L. Cassman of Indianapolis, IN. Attorneys for Amicus Curiae The Indiana Trial Lawyers Ass'n; Mark Scott of Kokomo, IN and Susan Rempert of Indianapolis, IN. Attorneys for Amicus Curiae Ins. Institute of Indiana, Inc.; Bryan Babb and Kelly Scanlan of Indianapolis, IN. Attorneys for Amicus Curiae Defense Trial Counsel of Indiana; James Johnson of Evansville, IN and Christine Stach of Fort Wayne, IN.

9:45:AM - In the Matter of J.C.C. v. State of Indiana - The trial court ordered J.C.C., who had been adjudicated delinquent for acts that would be child molesting if committed by an adult, to register as a sex offender, and denied J.C.C.’s motion to set aside the adjudications. The Court of Appeals affirmed in an unpublished decision. J.C.C. v. State, No. 49A02-0403-JV-266 (Ind. Ct. App., Dec. 28, 2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. For Appellant J.C.C.: Katherine A. Cornelius. For Appellee State of Indiana: Zachary J. Stock. Online

Webcasts will be available here.

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

None scheduled.

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

None scheduled.

Posted by Marcia Oddi on April 28, 2008 06:50 AM
Posted to Upcoming Oral Arguments

Sunday, April 27, 2008

Environment - "Interpretation of state law led to 20-day BP public hearing notice"

The Gary Post-Tribune's awarding-winning environmental reporter, Gitte Laasby, has this story today:

Indiana Department of Environmental Management officials acted against advice from the U.S. Environmental Protection Agency to check state law when IDEM provided 20 days’ notice of a public hearing on BP Whiting’s air permit in Hammond.

State law requires 30 days. IDEM asked the EPA in January how much advance notice was required and was told state law applies, according to e-mails the Post-Tribune obtained under a Freedom of Information Act request from the U.S. Environmental Protection Agency.

State law specifies 30 days’ notice is required.

“With regard to BP’s public hearing, (...) do you believe we need to provide 30 days notice for a formal Hearing?” chief of IDEM’s Office of Air Quality permits branch Matt Stuckey asked in an e-mail to Sam Portanova, an environmental engineer with the U.S. Environmental Protection Agency, on Jan. 21.

Portanova replied the next day.

“Regarding public hearing requirements, to my knowledge there aren’t any public hearing requirements in the federal regs for minor construction permits. Therefore, the need to provide notice would be based on Indiana rules,” Portanova replied.

Despite the advice from EPA, IDEM went ahead and scheduled a hearing without the required 30 days’ notice for minor modifications. IDEM first notified the public of a Feb. 25 hearing this via e-mail on Feb. 5 — 20 days in advance.

The legal ad announcing the hearing, which counts for legal purposes, was scheduled to run in the Post-Tribune Feb. 7 — 18 days in advance — but was canceled before it ran.

IDEM Commissioner Tom Easterly said he knew IDEM talked to EPA, but that IDEM’s lawyers did not believe 30 days’ notice was required.

“We’d have to get our legal people to find the real answer, but their interpretation at the time was that we didn’t have to do that,” Easterly said in an interview with the Post-Tribune Friday. “But it doesn’t matter because we decided to do it. It wasn’t worth the discussion. People asked for more time so that was one thing we could do.”

Asked whether Stuckey checked with legal counsel on the notice requirement after receiving the note from EPA that state law applies, Easterly said, “I can’t speak for what somebody else did.” * * *

On Feb. 11, IDEM ran a new legal ad in the Post-Tribune, announcing the hearing date as Friday, March 14, in Hammond.

“We provided additional time for the public to participate in the review process while still ensuring effective review and meeting our statutory requirements for issuing a decision,” IDEM spokesman Rob Elstro explained.

If IDEM had not renoticed the hearing, the permit could have been successfully challenged at the state or federal level for lack of notice. Construction can’t start until the permit is in hand.

The Friday night hearing seemed unusual to many, including former IDEM Assistant Commissioner Janet McCabe. McCabe had never experienced a hearing on a Friday night and wrote current IDEM Assistant Commissioner of Air Quality Dan Murray to ask for an explanation.

“Ran out of date options,” Murray replied on Sunday, Feb. 10, in an e-mail released by IDEM in a response to a public information request by the Post-Tribune.

McCabe, who is now the executive director of Improving Kids’ Environment, pressed Murray on the issue in another e-mail. Murray elaborated, but suggested a hearing was not required.

“I hope this is you and I discussing this,” Murray wrote. “We started at Feb. 25th and pushed it back due to pressure. We wanted it early than the 14th, but the facility wasn’t available. The 14th is as far back as I’m willing to push it back and is more than we’ve done in the past.”

McCabe replied: “My concern is that there’s a growing feeling that IDEM is not interested in public input and just does what the businesses want, after checking with them. Agree with it or not, scheduling a public hearing on a Friday — when people may have to choose between going to that and going to their kids’ basketball game — just fuels that fire.”

Murray replied: “You understand the unfortunate reality of source mods (modifications), there are projects and schedules involved.”

Easterly said IDEM ran into problems with availability of personnel and space to hold the hearing and didn’t have many other dates available.

“We had trouble getting the room. We don’t own these rooms. And while we had it all set up for the first meeting, there was very little time that they gave us to choose to use it again,” Easterly said.

He said people should have time to comment on what they heard at the hearing. The e-mail released by EPA said BP had a “June 1 commence construction deadline.”

The story is accompanied by this timeline of events:

Feb. 5, 2008: IDEM announces BP’s air permit meeting and hearing on Feb. 25 via its listserv.
Feb. 7: Legal ad announcing the meeting and hearing on Feb. 25 is scheduled to run in the Post-Tribune, but an IDEM employee cancels the ad before it runs. The law requires at least 30 days’ notice.
Feb. 8: IDEM reschedules the meeting and hearing, announcing via its listserv that the event is now March 14.
Feb. 11: A new legal ad runs in the Post-Tribune, announcing the meeting and hearing on March 14. This time, the notice is 32 days in advance.

Posted by Marcia Oddi on April 27, 2008 01:45 PM
Posted to Environment

Ind. Courts - Even more on "Judicial Candidates Sue to Protect Judicial Speech Rights"

Updating earlier ILB entries from April 18th, April 21st and April 23rd, the Richmond Palladium Item has an editorial today, titled "Let judges express their views." It reads:

Two Indiana judicial candidates have joined the Indiana Right to Life Committee as plaintiffs in a federal lawsuit seeking to block enforcement of Indiana rules the judges say prohibit them from explaining their views on abortion, euthanasia and other hot-button, divisive issues.

This one is not easy, but critically important.

The issue arises from a preliminary advisory opinion from the state's Judicial Qualification Commission warning that judicial candidates who make "broad statement on disputed social and legal issues" run the risk of violating the Indiana Code of Judicial Conduct.

Several candidates for Indiana judgeships declined to respond to a Right to Life survey, citing the Indiana code.

The 7th U.S. Circuit Court of Appeals tossed out the case, initially filed by Indiana Right to Life, saying there was no evidence that a judicial candidate faced commission reprisal for answering the survey.

But that was before the two judicial candidates -- Marion Superior Court Judge David Certo and Torrey Bauer, a candidate for judge in Kosciusko County Superior Court -- joined plaintiff Right to Life, saying they did in fact fear reprisal for answering.

In the 2002 case of Minnesota Republican Party v. White, the U.S. Supreme Court struck down the "announce clause" in Minnesota's Code of Judicial Conduct that said that a judge shall not "announce his or her views on disputed legal or political issues." A similar "announce clause" in Indiana's code of judicial conduct was subsequently removed.

In its advisory opinion, the commission seems to acknowledge the pre-eminence of First Amendment free speech guarantees and the Supreme Court's ruling in the Minnesota case, but then goes on to split legal hairs over how a judicial candidate may or may not answer position questions.

The commission has an obvious interest, one shared by a conscientious public, to assure judicial independence and neutrality -- far apart from the kind of pandering and promise making that accompanies the rawness of political campaigns.

Judicial candidates, if they feel a need to respond at all -- and they are not required to do so -- are well advised to remind Right to Life or any other lobby or interest seeking to impose a dangerous political litmus test on their appointment or election, that they will rule on the law, without sway of personal view. Who could ask for more?

Meanwhile, Indiana's Commission on Judicial Qualifications should take to heart its own opinion, notably the part that quotes Justice John Paul Stevens in his dissent in the Minnesota case. Stevens noted that even if a judicial conduct code may not sanction judicial candidates from exercising free speech rights in their views on issues, the commission holds full free speech rights of its own. It can, for example, publicly draw attention to "the speaker's unfitness for judicial office" where his or her remarks or promises compromise judicial integrity.

"If the solution for harmful speech is more speech," Stevens wrote, "so be it."

It's a time-honored, deserving principle that the nation's finest justices have advanced.

The April 21st ILB entry includes links to most of the documents filed so far in the suit, including the "preliminary advisory opinion" referenced in the editorial.

Posted by Marcia Oddi on April 27, 2008 01:34 PM
Posted to Indiana Courts

Saturday, April 26, 2008

Law - U.S. Senate kills bill to right the wrongs of Ledbetter

Remember Ledbetter v. Goodyear Tire & Rubber Co ., the Supreme Court decision from last May, where, to quote Steven Greenhouse of the NYT, "the Supreme Court ruled that workers generally lose their right to sue for pay discrimination unless they file charges within 180 days of a specific event, like a boss giving a worker a smaller raise because of her sex. Establishing a pattern of discrimination over several years will no longer be possible."

Dahlia Lithwick of Slate has an article today that begins:

On Wednesday, Senate Republicans blocked a bill that would have overturned a Supreme Court ruling that sharply limited pay-discrimination suits based on gender under Title VII. In Ledbetter v. Goodyear (2007), the Supreme Court, by a 5-4 margin, held that the clock for the statute of limitations on wage discrimination begins running when the employer first makes the decision to discriminate, and does not run for all the subsequent months—or in this case, years—that the disparate paychecks are mailed. Justice Samuel Alito, writing for the court, found that the plaintiff in this case, Lilly Ledbetter, was time-barred from filing her discrimination suit because it took more than 180 days after she first got stiffed to discover that she was being stiffed on account of her gender. The court agreed her jury verdict should be overturned.

See also this ILB entry from June 16, 2007.

Posted by Marcia Oddi on April 26, 2008 08:14 AM
Posted to General Law Related

Friday, April 25, 2008

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

Here is the Indiana Supreme Court's transfer list for the week ending April 25, 2008.

There were four transfers reportedly granted this week. Three were summarized in this ILB entry from earlier today - it is the entry immediately below. However, these transfer grants are not on the list just posted.

Instead, a single transfer is on the list: Indiana Department of Environmental Management v. Raybestos Products Company. See the ILB summary of the 11/15/07 COA decision here (2nd case), which concludes: "Clearly, an agreement which would permit cleanup levels over twenty times that of the applicable federal regulations would be contrary to public policy, and Raybestos may not rely upon such an agreement or recover for any breach thereof by IDEM. We therefore reverse the judgment of the trial 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 April 25, 2008 05:59 PM
Posted to Indiana Transfer Lists

Ind. Decisions - Court grants transfer in three cases

The formal transfer list will follow later today, but the ILB has received notice that three cases have been granted transfer:

Michael Hill v. State of Indiana - an Oct. 23, 2007 NFP opinion, which concluded:

Based on the foregoing, we conclude that (1) the trial court did not err by permitting the State to amend the charging Information by adding Count III, attempted sexual misconduct with a minor, after the omnibus date; and (2) the State did not present sufficient evidence to convict Hill of attempted sexual misconduct with a minor. As a result we remand to the trial court to vacate Hill’s conviction for Count III, attempted sexual misconduct with a minor. Reversed and remanded with instructions.

State v. Raymond Washington, an Oct. 22, 2007 2-1 opinion: "The sole restated issue is whether, when a person is stopped for a traffic infraction and there are no indicia of criminal activity, the police officer violates Article 1, Section 11 of the Indiana Constitution against unreasonable searches and seizures when he asks the individual if he is in possession of drugs. We affirm."

John Roberts, MD v. Community Hospitals of Indiana., Inc. - a Dec. 12, 2007 14-page opinion that concluded: "For the foregoing reasons, we conclude that Roberts has been prejudiced by the trial court’s failure to provide clear and unambiguous notice prior to consolidation of the preliminary injunction hearing with the trial on the merits and remand for further proceedings. Reversed and remanded."

Posted by Marcia Oddi on April 25, 2008 01:04 PM
Posted to Indiana Transfer Lists

Ind. Decisions - "This is one of those cases that gives lawyers a bad name"

An opinion issued yesterday in the case of Cheryl Janky v. Speros Batistatos et al., by Judge Simon, ND Ind., has this catchy introduction:

This is one of those cases that gives lawyers a bad name. It began as a routine copyright infringement dispute but has deteriorated into a nuclear arms race of costly litigation tactics and the worst kind of mean spirited attorney game-playing. It has spawned two federal cases, three appeals, one state case, a judicial recusal and multiple instances of court-imposed sanctions. Some of the low lights include the filing of spurious motions and a letter from one party to another containing bad poetry composed by one of the lawyers.

Posted by Marcia Oddi on April 25, 2008 12:57 PM
Posted to Ind Fed D.Ct. Decisions

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

For publication opinions today (2):

In Kenneth Hay v. Wanda J. Hay, a 5-page opinion, Judge Barnes writes:

Kenneth raises two issues, which we consolidate and restate as whether the trial court properly ordered the sale of property that Kenneth held jointly with Wanda. * * *

Referencing Indiana Code Section 32-17-4-12(a),3 which permits the trial court to “order the whole or any part of the land to be sold,” Kenneth claims that the trial court should have ordered the sale of Wanda’s interest only. This section, however, provides for the sale of a portion of the land, not a portion of the co-tenants’ interests in the land. Our reading of the statute is in keeping with the holding that “the trial court does not have the power to order one tenant to sell his interest to the other, while allowing the tenant in possession the right to retain the entire tract.” * * * There is no indication that the trial court was permitted, let alone required, to order the sale of only Wanda’s interest in the property. The trial court properly granted Wanda’s motion for summary judgment.

In State of Indiana v. Tracey Lamont Martin, a 7-page opinion, Judge Crone writes:

The State of Indiana appeals from the trial court’s directed verdict in favor of Tracey Lamont Martin, who was charged with domestic battery as a class D felony. We reverse.

Issue. The State raises as a reserved question of law the issue of whether the trial court erred in determining that a witness’s pretrial statements were testimonial and thus inadmissible at trial. * * *

In sum, we must conclude that the circumstances of the officers’ interrogation of Brooks objectively indicate that its primary purpose was to assist police in resolving an ongoing emergency. Therefore, Brooks’s statements to police were nontestimonial, and the trial court abused its discretion in excluding them. Reversed.

NFP civil opinions today (1):

In In The Matter of B.F. and T.F., Children in Need of Services, Audrey Faver v. Marion County Department of Child Services, and Child Advocates, Inc. (NFP), a 7-page opinion, Judge Crone writes:

Audrey Faver (“Mother”) appeals from the trial court’s denial of her request for visitation with her children, B.F. and T.F., during the pendency of child in need of services (“CHINS”) proceedings and the trial court’s failure to appoint a public defender to represent her in the CHINS proceedings. Mother also alleges that she was denied the effective assistance of counsel in violation of the state and federal constitutions. We dismiss Mother’s appeal for lack of jurisdiction. Issue. The dispositive issue is whether we have jurisdiction to consider Mother’s appeal. * * *

The trial court’s order does not fall under any of the categories enumerated in Appellate Rule 14(A); thus, Mother was not entitled to an interlocutory appeal as a matter of right. Because Mother did not seek to file a discretionary interlocutory appeal pursuant to Appellate Rule 14(B) and no basis exists for a statutory interlocutory appeal pursuant to Appellate Rule 14(C), we hereby dismiss Mother’s appeal for lack of jurisdiction. See, e.g., Moser v. Moser, 838 N.E.2d 532, 534 (Ind. Ct. App. 2005) (“This court may dismiss appeals upon its own motion when it discovers it does not have jurisdiction. An appeal from an interlocutory order is not allowed unless specific authority is granted by the Indiana Constitution, statutes, or the rules of court. Moreover, any such express authorization for an interlocutory appeal is strictly construed.”) (citations and quotation marks omitted), trans. denied (2006). Dismissed.

NFP criminal opinions today (3):

Jerome Lee Fine v. State of Indiana (NFP)

Billy J. Freeman v. State of Indiana (NFP)

Trenell C. Bright v. State of Indiana (NFP)

Posted by Marcia Oddi on April 25, 2008 12:27 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on Monroe County Circuit Judge Division 6 primary race

A story ($$$) in the Bloomington Herald-Times today begins:

Four Democrats are seeking the nomination for Monroe County Circuit Judge, Division 6. Republican Joby Jerrells is running unopposed for his party’s nomination.

Seat 6, which now handles civil cases, divorce proceedings and protective orders, is the seat being vacated by Democrat David Welch, who announced earlier this year he would not seek re-election.

The seat is one of nine judgeships in the unified court system, which expanded to that number in January with the addition of the ninth court. The ninth seat also is on the ballot in the fall. Candidates for nomination for Seat 9 will be profiled in a coming edition of The Herald-Times.

The candidates are profiled, followed by their individual answers to the following questions:

1) Which qualities of the judges you’ve observed would you most want to emulate if you were on the bench?

2) How do you think the current space/resource crisis at our jail should be addressed?

3) What is the most important job of a judge?

Posted by Marcia Oddi on April 25, 2008 11:26 AM
Posted to Indiana Courts

Ind. Decisions - Even more on: Jeffersonville bans sex offenders from parks

Updating this ILB entry from April 3rd, Ben Zion Hershberg of the Louisville Courier Journal reports today:

Jeffersonville City Court Judge Ken Pierce rejected a man's request for an exemption from the city's ban on sex offenders using city parks yesterday, citing other court cases faced by the man who said he wanted to watch his son play baseball.

Eric Dowdell, 34, argued that he had completed his 1996 sentence for sexual battery and no longer was required to register with the state's registry of sex offenders.

At a hearing on his request April 11, Dowdell submitted letters from the president of the Clarksville Little League, which is using the Jeffersonville Little League Ballpark this year, and from the mother of a friend of his son supporting the request.

Dowdell also submitted documentation showing he had successfully completed counseling and probation for the conviction and testified that he has coached his son and others in sports.

But under questioning by Larry Wilder, a lawyer for the city, Dowdell acknowledged that he has faced several other charges since the conviction, although none were for a sexual offense. Some of the charges are pending and some have been dismissed, Dowdell said, and he pleaded guilty to domestic battery and battery.

Pierce cited those convictions and pending charges in denying the exemption.

Posted by Marcia Oddi on April 25, 2008 11:21 AM
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "ACLU to appeal loss in BMV case"

A story today in the Indianapolis Star via the AP reports:

The ACLU of Indiana will appeal a court ruling that allows the state to revoke driver's licenses if information on them doesn't match Social Security records.

Marion Superior Court Judge Kenneth Johnson on Wednesday denied the ACLU's request to halt the Bureau of Motor Vehicles' invalidation process. The BMV has a strong interest in maintaining accurate records to reduce fraud and identity theft, Johnson said in the ruling.

But state law and the Indiana Constitution do not allow the BMV to revoke licenses just because records don't match, said Ken Falk, legal director for the ACLU of Indiana. Falk said Thursday he would appeal the ruling.

"The BMV has to follow the law," he said. "The BMV can't decide on its own how it's going to prevent fraud."

Posted by Marcia Oddi on April 25, 2008 11:16 AM
Posted to Ind. Trial Ct. Decisions

Thursday, April 24, 2008

Ind. Decisions - "Dueling awareness days and accompanying t-shirts"

Nuxoll v. Indian Prairie School District, an opinion in a case out of Illinois issued late yesterday by the 7th Circuit, is discussed last evening in this entry by Gary Welsh of Advance Indiana.

The ruling is also featured in Robert Loblaw's Decision of the Day. A quote:

Judge Posner’s lead opinion is worth reading, as always. But so is Judge Rovner’s concurrence. While Judge Posner scratches his head wondering why kids are so silly and why anyone would be offended at a t-shirt, Judge Rover spills an inordinate amount of ink explaining why the slogan is derogatory. But she spills even more ink explaining why speech in schools is so important. It is a breath of fresh air after decisions like this and this, in which judges have openly disdained students who pursue First Amendment crusades.

Indeed. Here is a quote from Judge Rovner's dissent, at p. 16:

Moreover, I heartily disagree with my brothers about the value of the speech and speech rights of high school students, which the majority repeatedly denigrates. Youth are often the vanguard of social change. Anyone who thinks otherwise has not been paying attention to the civil rights movement, the women’s rights movement, the anti-war protests for Vietnam and Iraq, and the recent presidential primaries where the youth voice and the youth vote are having a substantial impact. And now youth are leading a broad, societal change in attitude towards homosexuals, forming alliances among lesbian, gay, bisexual, transgendered (“LGBT”) and heterosexual students to discuss issues of importance related to sexual orientation. ... The young adults to whom the majority refers as “kids” and “children” are either already eligible, or a few short years away from being eligible to vote, to contract, to marry, to serve in the military, and to be tried as adults in criminal prosecutions. To treat them as children in need of protection from controversy, to blithely dismiss their views as less valuable than those of adults, is contrary to the values of the First Amendment.

Posted by Marcia Oddi on April 24, 2008 01:47 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 10 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Susan Crager v. John Crager (NFP) - "Appellant-respondent Susan Ann Crager appeals the decree of dissolution of her marriage to appellee-petitioner John Crager, as modified by the trial court’s ruling following Susan’s motion to correct error. We summarize and restate Susan’s arguments as follows: (1) the trial court erroneously valued certain real property; and (2) the trial court erroneously found John’s testimony regarding his assets and income to be credible. Finding no error, we affirm."

Bryan Woodard v. City of New Albany (NFP) - "Appellant-plaintiff Bryan Woodard appeals the trial court’s order granting summary judgment in favor of appellee-defendant City of New Albany (New Albany) and affirming the decision of New Albany’s Board of Public Works and Safety (Safety Board) to terminate Woodard’s employment as a firefighter. Woodard raises a number of arguments on appeal, many of which have been waived, and we combine and restate the non-waived arguments as follows: (1) the trial court erred by striking a portion of Woodard’s designated evidence and brief in opposition to New Albany’s motion for summary judgment; and (2) the trial court erroneously affirmed the Safety Board’s decision, which was arbitrary and capricious and not based on substantial evidence. Finding no error, we affirm."

NFP criminal opinions today (8):

Teresa J. Jackson v. State of Indiana (NFP)

Leslie Stone v. State of Indiana (NFP)

Paul R. Wallace v. State of Indiana (NFP)

Brent Minard v. State of Indiana (NFP)

Jon J. Reid v. State of Indiana (NFP)

Emmett White v. State of Indiana (NFP)

Christopher Stephens v. State of Indiana (NFP)

Derick Walker v. State of Indiana (NFP)

Posted by Marcia Oddi on April 24, 2008 01:26 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Veolia accused of failing to read meters regularly and overestimating usage"

John Russell reports in the Indianapolis Star today on a lawsuit filed yesterday against the company managing the Indianapolis Water Company. Some quotes:

Veolia Water is being sued for allegedly failing to read the meters of its customers at least every two months, as required under law, and overestimating water usage for hundreds of thousands of customers.

The lawsuit against Veolia Water was filed Wednesday in Marion Superior Court by two residential customers, who are seeking class-action status on behalf of more than 250,000 customers.

Veolia Water North America, a subsidiary of a French company, has managed the city-owned Indianapolis Water Co. since 2002. It is responsible for reading meters, billing, and handling service calls, along with treating and distributing water.

In recent weeks, dozens of customers have complained to The Indianapolis Star of overbilling by Veolia Water, claiming the company hasn't read their meters in months, despite a law that requires the company to read meters at least once every two months. The lawsuit refers to Star articles and letters to the editor as part of its allegations.

The lawsuit's two plaintiffs make similar allegations. David Lear, Indianapolis, alleges Veolia has read his meter only twice in the past 17 months and overestimated his usage. Jason Bond, Zionsville, alleges Veolia hasn't taken an actual meter reading at his house in more than five months.

"I think these are very typical stories," said their lawyer, Peter S. Kovacs of the Indianapolis law firm Stewart & Irwin. "I've looked at a number of bills, and it shows a very similar story of overcharging." * * *

According to the suit, Veolia is entitled to earn incentives for meeting certain benchmarks, including customer service. Under the management agreement, Veolia received $9.2 million in incentive payments from the city for 2007. For meeting the "meter reading" incentive, Veolia received $334,976 last year. That is in addition to the annual service fee received by Veolia from the city, which exceeds $33 million a year, the suit said. * * *

The suit accuses Veolia Water of deceptive practices and fraud and seeks up to $1,000 per violation, plus attorneys' fees. The suit said Veolia breached its management agreement by using a flawed methodology for estimating residential customers' water bills, which it said unfairly inflates water usage during typically lower-consumption months.

It also accuses Veolia of unfairly imposing late charges on estimated bills, which in turn "are inflated by virtue of the fact that the bills are themselves overestimated." Late fees are calculated as a percentage of the bill.

Access a copy of the 14-page complaint and 1-page "2007 monetary incentive summary" (Ex. B) here, via the Indianapolis Star website. The 289-page Exhibit A, which contains the agreement between USFiler and Indianapolis Waterworks, is available here, via the Stewart & Irwin site.

Posted by Marcia Oddi on April 24, 2008 09:54 AM
Posted to Indiana Courts

Ind. Law - More on "Vigo’s Ephedrine ordinance could be revamped"

On April 17 the ILB quoted from a Terre Haute Trib-Star story about Vigo County's local ordinance on meth ingredients. Today the same Trib-Star reporter, Howard Greninger, writes:

Vigo County law enforcement officers will no longer issue tickets against retailers because a county ordinance aimed at ingredients used to make methamphetamine cannot supersede state law, County Attorney Robert Wright said.

In addition, the county has received a cut in grant funds that helped pay for a computer analysis of required documents from retailers showing who is buying ephedrine products. The result is the county will no longer consistently track that data, said Vigo County Sheriff Jon Marvel.

Vigo’s 2004 ordinance targets ephedrine, pseudoephedrine, ephedrine hydrochloride, pseudoephedrine hydrochloride, pseudoephedrine sulfate and phenylpropanolamine, substances used to make meth.

Vigo County is the only Indiana county with such a local ordinance because it was passed before a state law took effect in 2005.

However, some officials last week voiced concern that the county ordinance has a loophole, as it does not hold sellers responsible.

The ordinance restricts buyers from purchasing more than two packages in seven days; however, buyers have been violating that provision. The county ordinance limits sellers to no more than two packages to a customer, but has no provision for the seller to limit that number in a seven-day period.

State law also has that loophole, Wright said.

“The existing ordinance that we have is a good law,” Wright told the county Board of Commissioners on Tuesday. “The one thing that creates a problem for Vigo County to amend their existing law is that that state law reads that a governmental unit may not adopt an ordinance after Feb. 1, 2005, that is more stringent than” state law. * * *

Wright said county officials would have to seek an amendment in state law.

Posted by Marcia Oddi on April 24, 2008 09:41 AM
Posted to Indiana Law

About this blog - Still more on: Announcement from the ILB editor

Updating the initial ILB entry on this topic from August 20, 2007, and this update from February 11, 2008, I am happy to report that yesterday I completed my final radiation treatment. What remains? I feel extremely fortunate to be able to report that all that is on the agenda are quarterly checkups to make sure things remain good. Hopefully, then, this is my final report to you on this topic. As before, your thoughts and prayers have been, and continue to be, much appreciated.

Posted by Marcia Oddi on April 24, 2008 09:25 AM
Posted to About the Indiana Law Blog

Wednesday, April 23, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 11 NFP)

For publication opinions today (5):

In Prime Mortgage USA, Inc. and David M. Law v. Delie T. Nichols, a 67-page (!) opinion, Judge Robb writes:

Prime Mortgage USA, Inc. (“Prime”), and David Law (referred to collectively as the “Defendants”) appeal following the trial court’s order of default judgments in favor of Delie Nichols as a penalty for the Defendants’ discovery violations. The trial court held a hearing on damages, and awarded roughly eight million dollars to Nichols. In a subsequent proceedings supplemental, the trial court issued an order of garnishment on a life insurance policy held by Law. * * *

We conclude that Nichols’s claims were not barred by the statute of limitations or the doctrine of unclean hands and that the trial court did not abuse its discretion in denying the Defendants’ request for a jury trial or in entering a default judgment based on the Defendants’ discovery violations. We further conclude that the trial court’s award of damages was within the scope of the evidence. We also conclude that Nichols’s compensation constitutes a “wage” for purposes of the Wage Payment Statute. However, we conclude that it was improper to grant a judgment against Prime on Nichols’s claim for breach of fiduciary duty, and reverse the trial court’s order in this regard. Finally, we remand with instructions that the trial court determine whether any of Law’s life insurance policy is exempt from execution. Affirmed in part, reversed in part, and remanded.

In Cory L. Bowman v. State of Indiana , a 10-page, 2-1 opinion, Judge May writes:

Cory L. Bowman appeals the denial of his motion for discharge and dismissal. He alleges his prosecution was barred by Indiana Criminal Rule 4(C), the Sixth Amendment to the United States Constitution, and Article 1, Section 12 of the Indiana Constitution. We affirm. * * *

[Re 4(C)] His arrest placed him on notice the State was interested in filing charges against him. See id. at 617-18 (arrestee “is aware he must face a charge of committing a crime on a particular date”). Simple measures, such as leaving a forwarding address or updating his address with the Bureau of Motor Vehicles, would have made it possible for the State to notify Bowman of the charges against him. When the State has made reasonable efforts to locate an arrestee, it cannot be found at fault for delay caused by the accused’s disappearance. To hold otherwise would create an incentive for arrestees to relocate in the hope they will not be found within a year. The trial court did not abuse its discretion by determining the delay was chargeable to Bowman.

[Re constitutional argument] In sum, two of the factors – the length of the delay and Bowman’s prompt assertion of his right to a speedy trial – weigh in favor of Bowman. However, the other two factors – fault and prejudice – weigh against him. As Bowman acknowledges, we have traditionally placed the greatest weight on whether the defendant will be prejudiced. (Appellant’s Br. at 19.) Furthermore, because Bowman could have prevented the delay, we believe his prompt assertion of his right after receiving notice is entitled to little weight. Therefore, we conclude the balance of the factors indicates Bowman’s right to a speedy trial has not been violated. Affirmed.

RILEY, J., concurs.
KIRSCH, J., dissenting with opinion: I respectfully dissent.

The State took no action to notify him of the charges for four and one-third years after learning that Bowman no longer resided at the address that it had for him. There is no evidence that it made any attempt whatsoever to acquire an updated address. There is no evidence that the State even checked the records of the Bureau of Motor Vehicles to determine whether Bowman had updated his address. Indeed, when Bowman did update his address with the Bureau in February 2006, the State still took no action to notify him of the charges. Had Bowman not been stopped for speeding in Illinois, this matter would still be pending with no notice to the defendant.

My colleagues hold that the State did what it reasonably could to notify Bowman of the charges. I disagree. From my perspective, the State did virtually nothing. I believe the trial court erred in determining that the four-year, four-month delay was attributable to Bowman. I would reverse the trial court’s order and remand with instructions to dismiss the pending charge.

ILB Note: The April 8th, 2-1 decision by another COA panel , in the case of Robert Jeffrey Pelley v. State of Indiana (see list of ILB entries here), which reversed a murder conviction under the speedy trial provision, is not referenced in today's opinion. The April 8th panel was Sharpnack, and Riley, with Friedlander dissenting; today's panel was May and Riley, with Kirsch dissenting.

Charles Sweeney v. State of Indiana - "Sweeney did not present any testimony at the post-conviction hearing from which the post-conviction court could make a factual determination as to whether or not Clark County officials or State of Indiana officials were accompanied by a federal official when transporting Sweeney from Kentucky to Indiana. No statutory violation was established. Also, Sweeney does not present legal authority for the proposition that his Indiana sentence was “stopped,” illegal, or subject to “correction” if challenged by appellate counsel.

"In light of the foregoing, Sweeney has not established that he received ineffective assistance of appellate counsel due to counsel’s failure to fully develop an ineffectiveness argument pertaining to trial counsel."

In Nicole A. Schaffer v. Robert J.Schaffer, an 11-page opinion, Judge Vaidik writes:

Nicole A. Schaffer appeals the trial court’s denial of her request to terminate third party stepparent Robert J. Schaffer’s visitation rights with her daughter, M.S. Specifically, Nicole argues that the trial court’s denial violated her due process rights because the court failed to apply a parental presumption favoring her decisions regarding the care, custody, and control of M.S. Finding that this parental presumption applies to initial visitation proceedings but that Nicole did not appeal the order establishing visitation between Robert and M.S., we conclude that the parental presumption does not apply to the modification of visitation. As such, because Nicole has failed to prove that it is in the best interests of M.S. to terminate visitation with Robert, we affirm the judgment of the trial court.

Mario L. Sims, Sr. v. Linda Lopez - "Mario Sims appeals the trial court’s affirmation of a protective order requested by Sims’ ex-wife Linda Lopez and entered ex parte. We remand so the trial court may determine whether the protective order would prevent Sims from prosecuting any pre-existing civil cases."

NFP civil opinions today (2):

In Re: The Marriage of Christopher Mark Kincaid v. Shelley Rae Kincaid (NFP) - "Christopher Mark Kincaid appeals the trial court’s calculation of child support. Because two of the court’s findings of fact are clearly erroneous, we reverse and remand for the court to re-determine Christopher’s weekly income and recalculate support using corrected incomes for both Christopher and his ex-wife, Shelley."

Michelle L. Wood (Mulhern) v. Terry L. Wood (NFP) - "Michelle L. Wood (n/k/a Mulhern) appeals the order dissolving her marriage to Terry L. Wood. She asserts error in the admission of evidence, determination of custody, and assignment of income to her for child support purposes. We affirm."

NFP criminal opinions today (9):

Brian K. Wynne v. State of Indiana (NFP)

Robert Hicks v. State of Indiana (NFP)

William Tyrone Thomas v. State of Indiana (NFP)

James Williams v. State of Indiana (NFP)

David Long v. State of Indiana (NFP)

Lana Thomas v. State of Indiana (NFP)

Jason A. Nicely v. State of Indiana (NFP)

James Love v. State of Indiana (NFP)

Marvin Lee Kelly v. State of Indiana (NFP)

Posted by Marcia Oddi on April 23, 2008 01:49 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Indiana photo-ID decision coming tomorrow?

Updating this ILB entry from Monday, the blog, Ballot Access News, edited by Richard Winger, reports today:

No U.S. Supreme Court Election Law Decision on April 23: Although the U.S. Supreme Court issued an opinion on April 23 in a non-election law case, it did not issue the Indiana photo voter ID decision. The next possible date for that decision is April 28, Monday. The Court will be sitting in April, May and June for the sole purpose of issuing decisions; the oral arguments for this session will be over by noon on Wednesday, April 23.

Posted by Marcia Oddi on April 23, 2008 01:39 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Still more on "Judicial Candidates Sue to Protect Judicial Speech Rights"

Updating this ILB entry from April 21st, James Bopp has has sent out this update to the lawsuit:

This is an update on the case filed last week against Indiana's judicial canons which prevent judicial candidates from answering a candidate questionaire distributed by Indiana Right to Life.

(1) Judge Miller of South Bend has recused himself and the case has been assigned to Judge Springmann of Ft. Wayne.

(2) Judge Springmann has set a hearing on the plaintiffs' Motion for Preliminary Injunction for April 30th at 11:00 am in federal district court in Ft Wayne.

(3) The Indiana Attorney General will be filing their response to the plaintiffs' motion by noon on April 29th.

Posted by Marcia Oddi on April 23, 2008 01:32 PM
Posted to Indiana Courts

Ind. Courts - More on: Muncie and Terre Haute mayoral election contests continue

Yesterday Arthur E. Foulkes of the Terre Haute Trib-Star reported in a story that begins:

Lawyers for former Terre Haute Mayor Kevin Burke have filed what could be the final brief in the legal battle for Terre Haute City Hall.

Burke’s attorneys, Ed DeLaney and Amanda Couture of Indianapolis, filed papers Monday with the Indiana Court of Appeals in response to papers filed by Bennett at the end of March.

Burke lost the Nov. 6 election to Bennett by 110 votes.

Burke later appealed that result in Vigo County Circuit Court claiming Bennett should not be named mayor because he was in violation of the federal Hatch Act while running for office.

Today Nick Werner of the Muncie Star-Press reports in a story that begins:

Democrat James Mansfield is not giving up in the battle for mayor.

Mansfield announced Tuesday that he would ask the Indiana Court of Appeals to review an election deadline he believed was unconstitutional.

A favorable ruling by the appeals court could help Mansfield win a special election in Precinct 46, where a problem with absentee ballots cost him the election.
"I don't think it would be fair for the 6,000-plus individuals who supported me in this campaign to drop anchor and not do anything," Mansfield said during a press conference Tuesday at Delaware County Democratic Party Headquarters.

Efforts by Mansfield earlier this year to win a special election in Precinct 46 failed after a judge dismissed two lawsuits.

In dismissing at least one of the lawsuits, special Judge Joel Roberts ruled that Mansfield missed a statutory deadline to file the lawsuit.

Posted by Marcia Oddi on April 23, 2008 08:44 AM
Posted to Indiana Courts

Tuesday, April 22, 2008

Ind. Courts - Indiana Court Times, March/April 2008, is available online

The Indiana Courts website announces today that the 16-page March/April issue of Indiana Court Times is available online.

Posted by Marcia Oddi on April 22, 2008 01:18 PM
Posted to Indiana Courts

Courts - Intensive competition for Supreme Court clients described

From Howard Bashman's How Appealing today:

"Supreme Court - The Hottest Docket in Town; Firms Clamor to Be Among the Few To Go Before the Nation's Final Arbiter": Brent Kendall has this very interesting front page article today in The Daily Journal of California.

Don't miss this.

Posted by Marcia Oddi on April 22, 2008 01:13 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 16 NFP)

For publication opinions today (3):

In Jamie L. Freyn v. State of Indiana, a 4-page opinion, defendant appeals his sentence for domestic battery, as a Class D felony, Ind. Code § 35-42-2-1.3. Judge Riley writes:

Freyn argues that the trial court erred by sentencing him to a two-and-one-half-year sentence for Count II, domestic battery, as a Class D felony. Specifically, Freyn contends that a consecutive sentence beyond the advisory is prohibited by Indiana Code § 35-50-2-1.3, citing Robertson v. State, 860 N.E.2d 621 (Ind. Ct. App. 2007), trans. granted, vacated by Robertson v. State, 871 N.E.2d 280 (Ind. 2007). * * *

Since Freyn filed his Appellant’s Brief, our supreme court has overruled our decision in Robertson by explaining that a trial court is not limited to imposing the advisory sentence when imposing a consecutive sentence, unless (1) the consecutive sentence is imposed for nonviolent felony convictions arising out of a single episode of criminal conduct in accordance with Indiana Code section 35-50-1-2, (2) the consecutive sentence is an additional fixed term to an habitual offender under Indiana Code section 35-50-2-8, or (3) the consecutive sentence is an additional fixed term to a repeat sexual offender under Indiana Code section 35-50-2-14. Robertson, 871 N.E.2d at 285 (citing I.C. § 35-50-2-1.3(c)). Freyn does not allege that any of these three exceptions apply requiring the trial court’s imposition of the advisory sentence. Therefore, we conclude that Indiana Code section 35-50-2-1.3 did not prohibit the trial court’s imposition of a consecutive sentence in excess of the advisory for Freyn’s conviction for domestic battery, as a Class D felony.

In Indi Investments, LLC. v. Credit Union 1, an 8-page opinion, Judge Sharpnack writes:

Indi Investments, LLC (“Indi Investments”), appeals the trial court’s denial of its motion to set aside a sheriff’s sale. Indi Investments raises two issues, which we consolidate and restate as whether the trial court abused its discretion by denying Indi Investments’s motion to set aside the sheriff’s sale. We affirm. * * *

Here, Indi Investments had the means of obtaining information regarding the Waterfield mortgage. Indi Investments could have performed a title search or simply reviewed the trial court’s file and the Judgment to discover that the property was being sold subject to the Waterfield mortgage. However, Indi Investments failed to do so. Indi Investments is charged with actual notice of the Waterfield mortgage and, consequently, is not a bona fide purchaser. See, e.g., Vonderahe v. Ortman, 128 Ind. App. 381, 389-390, 146 N.E.2d 822, 826 (1958) (holding that the purchaser of property from an estate’s executor had a duty “to search the records as to the source of their title and determine therefrom the rights, duties and limitations of the executor” and the principle of caveat emptor applies “in sales by executors and administrators”). We conclude that the trial court did not abuse its discretion by denying Indi Investments’s motion to set aside the sheriff’s sale.

In Rebecca Lohmiller v. State of Indiana , a 23-page opinion, Chief Judge Baker writes:

Appellant-defendant Rebecca D. Lohmiller appeals her convictions and sentence for six counts of Forgery, a class C felony, and twenty-one counts of Practicing Nursing without a License, a class B misdemeanor. Specifically, Lohmiller argues that (1) the trial court erred by denying her pretrial motion to sever the charges; (2) the evidence presented was insufficient to sustain her convictions for forgery; (3) the trial court infringed on her right to testify by limiting her testimony regarding her previous involvement with the federal Witness Protection Program; (4) the trial court abused its discretion by not allowing a proffered expert witness to testify; (5) the trial court erred by denying the jury’s request for a dictionary during deliberations and its question regarding two jury instructions; (6) her convictions violate the double jeopardy clause of the Indiana Constitution; and (7) the trial court committed fundamental error by ordering her to pay $25,000 in restitution. Finding that the trial court committed fundamental error when it ordered Lohmiller to pay restitution, but finding no other error, we affirm in part, reverse in part, and remand with instructions contained herein.

NFP civil opinions today (4):

Victoria Robinson v. St. Joseph County Department of Child Services (NFP) - "Mother raises one issue for our review: was the evidence sufficient to support the termination of Mother’s parental rights. We affirm."

John C. Lewis v. Tradewinds Marine, Inc. v. Dearborn Savings Assoc., F.A. & American State Bank (NFP) - "Lewis appeals the trial court’s order denying his motion to correct error, arguing that there is insufficient evidence supporting the amount of the judgment in favor of appellee-plaintiff American State Bank (the bank). Finding no error, we affirm."

Nancy Olivares v. Carol White (NFP) - Pro se procedural errors, affirmed.

Bruce McAlvain v. Andrew Beagle (NFP) - "Bruce McAlvain appeals the trial court’s judgment awarding damages to Andrew Beagle in the amount of $417,357.13 and costs, expenses, and attorney fees in the amount of $11,066.17. McAlvain raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion by admitting exhibits of Beagle’s expenses; II. Whether the trial court abused its discretion by awarding Beagle damages in excess of the earnest money. We affirm."

NFP criminal opinions today (12):

Hythoris Beard v. State of Indiana (NFP)

Terry W. Helsley v. State of Indiana (NFP)

Theodore Johnson v. State of Indiana (NFP)

Catina King v. State of Indiana (NFP)

Danny J. Shuler v. State of Indiana (NFP)

Phillip Patterson v. State of Indiana (NFP)

Richard King v. State of Indiana (NFP)

Brian D. Burns v. State of Indiana (NFP)

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

Darby Hahn v. State of Indiana (NFP)

Kenneth Dodd v. State of Indiana (NFP)

Henry Garcia v. State of Indiana (NFP)

Posted by Marcia Oddi on April 22, 2008 12:36 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Favorite headlines this morning

Slow news day, so far. But two favorite headlines this morning:

From the Gary Post-Tribune: "Judge folds in a lecture after man pleads guilty".

From the Evansville Courier & Press: "Defense spins paper cocoon around Brooks".

Posted by Marcia Oddi on April 22, 2008 08:47 AM
Posted to Indiana Courts

Monday, April 21, 2008

Ind. Decisions - More on: Supreme Court holds Three Strikes Law unconstitutional

Writing about the Supreme Court decisions April 8th on the "three-strike" law (see ILB entry here), the Indianapolis Star's Jon Murray has a lengthy and comprehensive report today on the ramifications. Some quotes:

Locked away for setting an apartment fire, Eric D. Smith filed dozens of lawsuits against the prison system. He penned threats to the judge who sent him there. And he declared civil war against Indiana.

Now he's a precedent-setter.

One of his lawsuits spurred the Indiana Supreme Court this month to overturn a four-year-old law barring inmates from suing if courts had deemed three previous suits frivolous.

The dissenting justices in the 3-2 decision predicted a new influx of lawsuits would slow the gears of the court system for other Hoosiers.

As the attorney general's office looks for ways to salvage the law by loosening the restriction, it is bracing for more serial-filers like Smith, 29, now at Indiana State Prison in Michigan City.

One state attorney said Smith had filed 67 suits or claims since he was sentenced less than seven years ago by a Marion County judge.

In its April 9 decision, the Supreme Court ruled the law's absolute restriction against repeat-filers violated the open courts clause of the Indiana Constitution.

"This does not mean that meritless claims may not be summarily dismissed under the Frivolous Claims Law," said the opinion, written by Justice Theodore R. Boehm. "It does mean that an individualized assessment of each claim is required." * * *

The Supreme Court has sent the case back to Marion Superior Court to address whether it is frivolous.

When state legislators passed the so-called "three strikes" law, they sought to deter the flow of litigation from prisons full of amateur lawyers with plenty of time on their hands.

Since then, the number of inmate suits against the Indiana Department of Correction has decreased by nearly half, Erdmann said. Last year, state lawyers handled 148 lawsuits filed by inmates, not including some ruled frivolous.

The three-strikes law provided an exemption for prisoners in immediate danger of serious bodily injury.

Not enough, the Supreme Court said; that could still block an inmate who suffered a property theft or other wrong.

Advocates for prisoners' rights say laws that crack down on frivolous filers must be crafted so legitimate claims also aren't axed. * * *

Other states and federal law require inmates who file too many lawsuits to pay full court fees or ask a court's permission to file another claim. Indiana was the only state to cut off access to the courts, the Indiana opinion says.

The decision dismisses the concerns of dissenting Chief Justice Randall T. Shepard and Justice Frank Sullivan Jr. by noting a court's review of a suit for frivolity takes a little more time.

The same day the court issued the Smith decision, it reversed Court of Appeals rulings barring three suits by another inmate, James Higgason Jr., because of the three-strikes law.

But in those decisions, the Supreme Court threw out Higgason's claims -- all dealing with copying fees charged for legal documents -- because they are outside the courts' jurisdiction.

Posted by Marcia Oddi on April 21, 2008 06:39 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on "Judicial Candidates Sue to Protect Judicial Speech Rights" [Updated]

Updating Friday's ILB entry, today the documents filed April 18th in the suit filed in ND Indiana by James Bopp, Torrey Bauer, et al. v. Randall T. Shepard, et al., are available via PACER.

The ILB has downloaded them; paying the hefty fee of about $14.00. Much of that goes for the appendices to the complaint:

Main Document - 21 pages
Exhibit 1 - Articles of Incorporation - 25 pages
Exhibit 2 - Bylaws - 12 pages
Exhibit 3 - IN Commission on Judicial Qualifications Preliminary Advisory Opinion - 6 pages
Exhibit 4 - Letter for IRL Questionnaire - 2 pages
Exhibit 5 - IRL Questionnaire - 6 pages
Exhibit 6 - IRL Questionnaire Responses Part 1 (A) - 25 pages
Exhibit 6 - IRL Questionnaire Responses Part I (B) - 31 pages
Civil cover sheet - 1 page

In addition, there is the 32-page "Memorandum in support of plaintiffs' motion for a TRO," and the 5-page "Motion for the TRO."

Posted by Marcia Oddi on April 21, 2008 04:51 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In Town & Country Ford, Inc. v. Robin A. Davis (NFP), a 6-page opinion, Judge Vaidik writes:

In this small claims action, the trial court, in construing an installment contract for the purchase of a used vehicle and a service contract for an extended service plan on the vehicle, found an ambiguity existed and entered judgment in favor of the purchaser, Robin A. Davis, and against the dealership, Town & Country Ford, Inc. (“Town & Country”). Finding no ambiguity in the contracts, we conclude that the trial court erred by entering judgment in Davis’s favor and reverse. * * *

Construing these two documents, we conclude that there is no ambiguity. The Installment Contract makes reference to a sixty-month Service Contract, and the Service Contract unambiguously provides that the sixty months was to begin on April 29, 2000 (which is apparently the date the vehicle was originally purchased) and was to end on April 29, 2005.

Here, Davis purchased her used 2000 Ford Ranger in January 2003. At that time, she purchased an extended service plan, thereby extending the warranty on the vehicle to sixty months from April 29, 2000 to April 29, 2005. Davis had problems with her engine in September 2005, which was beyond the date of coverage for the extended service plan. Accordingly, we must reverse the trial court’s judgment entered in favor of Davis. Reversed.

In Tri-County Conservancy District v. Gradex, Inc. (NFP), a 14-page opinion, Judge Barnes wrties:

Tri-County Conservancy District (“Tri-County”) appeals the trial court’s award of prejudgment interest in the amount of $200,437.65 on a judgment totaling $283,149.38 entered in favor of Gradex, Inc. We affirm.

The restated issues before us are: I. whether the trial court properly determined that Gradex is entitled to prejudgment interest; and II. whether the accrual of prejudgment interest should have partially stopped after Tri-County tendered $218,870.62 to the trial court clerk at an earlier stage of the litigation. * * *

Conclusion. The trial court did not err in awarding prejudgment interest to Gradex in the amount of $200,437.65. We affirm.

NFP criminal opinions today (4):

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

Jason Foster v. State of Indiana (NFP)

Yolanda Weathers v. State of Indiana (NFP)

Earnest Webb v. State of Indiana (NFP)

Posted by Marcia Oddi on April 21, 2008 01:23 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Indiana photo-ID decision coming tomorrow?

The blog, Ballot Access News, edited by Richard Winger, reports today:

The U.S. Supreme Court did not release any full opinions on April 21, but it probably will on April 22. That might include the Indiana government photo-ID case for voting at the polls.

Also, on April 22 the Court hears arguments in Davis v Federal Election Commission, the case over the part of the McCain-Feingold law called the “Millionaires’ Amendment.”

Posted by Marcia Oddi on April 21, 2008 12:53 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, April 24th:

9:00 AM - State of Indiana v. Charlene Davis - Davis was found to be incompetent to stand trial on certain criminal charges, and it was determined that she would not likely be restored to competence within the foreseeable future. The Marion Superior Court granted Davis's motion to dismiss the criminal charges. The Court of Appeals reversed in State v. Davis, 875 N.E.2d 779 (Ind. Ct. App., Nov. 8, 2007) (see ILB summary here). Davis has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorneys: For Appellant State of Indiana: Cynthia L. Ploughe, Indianapolis, IN. For Appellee Charlene Davis: Anna E. Onaitis, Indianapolis, IN. Attorneys for Amicus American Civil Liberties Union of Indiana: Kenneth Falk, and Gavin Rose, Indianapolis, IN. [Note: Arguments apparently will not be webcast.]

9:45 AM - Kirk Reuille v. E.E. Brandenberger Construction, Inc. - After the parties in this case reached a private settlement on all claims except for attorney fees, the trial court denied the plaintiff's request for attorney fees under the parties' written contract that allowed the prevailing party to collect fees. The Court of Appeals affirmed, holding that the plaintiff did not qualify as a prevailing party. Reuille v. E.E. Brandenberger Constr., Inc., 873 N.E.2d 116 (Ind. Ct. App., Sept. 6, 2007), vacated (see ILB summary here). The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Reuille; Craig Patterson of Fort Wayne, IN. Attorneys for E.E. Brandenberger Constr., Inc.; A. Dale Bloom and Jeremy J. Grogg both of Fort Wayne, IN.

Webcasts will be available here.

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

None scheduled.

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

This Monday, April 21st:

3:00 PM - Tim Sinks v. Krista L. Caughey - Defendant appeals denial of motion to dismiss plaintiff's complaint arising from automobile accident on basis of statute of limitations (SOL). Trial court found that although amended complaint was filed after SOL had run, it related back to date of filing original complaint pursuant to Trial Rule 15(c). The Scheduled Panel Members are: Judges Sharpnack, Vaidik and Barnes. [Where: Valparaiso University School of Law.]

This Tuesday, April 22nd:

10:30 AM - James H. Helton v. State of Indiana - Petitioner was charged with possession of methamphetamine and possession of marijuana. After a trial started he decided to plead guilty to possession of methamphetamine and the State agreed to dismiss the other charge. He was sentenced, filed a petition for post-conviction relief, which the court denied. Petitioner now appeals. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and May. [Where: Springs Valley Jr/Sr High School, 326 S. Larry Bird Blvd., French Lick, Indiana.]

This Thursday, April 24th:

9:30 AM - Jerald J. Womack vs. State of Indiana - Jerald J. Womack appeals from his Kosciusko County convictions for Class D felony marijuana possession and for being a habitual controlled substance offender as well as the sentence imposed. The convictions are based on evidence that marijuana was found in a car in which Womack had been driving and that he had a certain number of prior controlled substance convictions. Womack contends that the police search of the car violated his rights under the Indiana and federal constitutions and that the State failed to prove that he possessed the marijuana that was found, he was driver of the car, and he was the person convicted of a prior crime that then supported the finding that he was a habitual controlled substance offender. Womack also contends that his aggregate nine-year sentence is inappropriate in light of the nature of his offenses and his character. The Scheduled Panel Members are: Chief Judge Baker, Judges Crone and Bradford. [Where: Wawasee High School, 1 Warrior Path #1, Syracuse, Indiana.]

Posted by Marcia Oddi on April 21, 2008 06:41 AM
Posted to Upcoming Oral Arguments

Sunday, April 20, 2008

Ind. Courts - "If the public is to not only understand the procedures in place for protecting children from abuse and neglect, but also to influence change in those procedures when necessary, it must have information"

Near the end of 2007 the ILB had a number of entries, including this one from Dec. 24, 2007, involving Marion County juvenile court Judge Marilyn Moores' order to release of the juvenile court file and the much larger DCS case file in TaJanay Bailey case.

Last Tuesday, April 15th, Kate Braser of the Evansville Courier & Press reported:

Seven of Amanda Brooks' and Terry Lay's children are scattered among relatives and foster homes in Indiana and Illinois.

That is according to records released Monday by Vanderburgh Juvenile Court Judge Brett J. Neimeier regarding the children's ongoing custody.

Prosecutors last week charged Brooks and Lay with murder in connection with the alleged beating death of 3-year-old Kalab Lay. The couple are also accused of abusing Kalab's twin sister. * * *

Illinois Department of Children and Family Services officials previously said Kalab and the three siblings were placed in foster care in Illinois in July 2004 after their parents were arrested on methamphetamine charges. On Dec. 18, 2007, Saline County Circuit Court Judge Todd Lambert ordered Kalab and his twin be sent for an extended visit with their parents.

The order was granted against the recommendation of the Lutheran Social Services and the Illinois Department of Children and Family Services.

And, in records submitted to Vanderburgh County Juvenile Court, a local Department of Child Services caseworker wrote that the placement was also against the recommendations of the Indiana Interstate Compact Unit. Indiana Department of Child Services officials previously have explained that when a child removed from a home is scheduled to come to Indiana from another state to visit with a parent for more than 30 days, the child's state of origin should request an Interstate Compact for the Placement of Children.

According to paperwork explaining the family's history, when Brooks and Lay were arrested in the Saline County case, the four children found living with them in the alleged methamphetamine lab were "in poor physical condition and undernourished."

The Vanderburgh Juvenile Court case was not opened until after rescue crews were called to the family's mobile home at 2417 Long Point Drive on March 31 for a report of a 3-year-old not breathing. When they arrived, they learned that besides Kalab, a newborn boy, Kalab's twin sister and a 1-year-old lived in the home.

A side-bar to Tuesday's story reports:

In an order issued Monday, Vanderburgh County Juvenile Court Judge Brett J. Niemeier wrote "due to our community's interest in the ongoing welfare of the Lay children, this Court is granting access to the media so the public will gain new insight into the workings of the Court and Department of Child Services."

The judge added that "due to the graphic nature or identifying features in photographs, the Court will not release the photographic evidence which was presented to the Court."

Niemeier cited specific Indiana Code stating "the juvenile court may grant any person having a legitimate interest in the work of the court or in a particular case access to the court's legal records. In exercising its discretion, the court shall consider that the best interests of the safety and welfare of the community are generally served by the public's ability to obtain information about the alleged commission of an act that would be murder or a felony if committed by an adult or the alleged commission of an act that would be part of a pattern of less serious offenses."

Niemeier said such access has been granted to media representatives before, in September 2000 and in May 2007.

He said media representatives will be allowed to attend future hearings in his courtroom regarding the custody of the youngest children of Amanda Brooks and Terry Lay, but the names of the children will not be made public.

From an editorial today in the C&P:

If the public is to not only understand the procedures in place for protecting children from abuse and neglect, but also to influence change in those procedures when necessary, it must have information.

But that information is not always easy to come by, given the confidentiality built into the system for the protection of children. In addition, some believe that same built-in secrecy can protect child protection systems in Indiana and other states from public scrutiny.

These issues have come to the forefront of public attention in recent weeks because of the tragic case of 3-year-old Kalab Lay. Emergency workers found him on March 31 not breathing, the victim of a beating at the Evansville home of his parents where he was on an extended visit from foster care in Illinois.

One of the key unanswered questions in this case is what information led a judge in Saline County, Ill., to order Kalab and his twin sister returned to their parents, Terry Lay and Amanda Brooks — each with criminal records — for the extended visit, and against the recommendations of two agencies, Lutheran Social Services and the Illinois Department of Children and Family Services.

Unfortunately, that Illinois judge, Todd Lambert, has declined to discuss the case, citing an open juvenile case. However, another judge, Brett Niemeier, who presides over Vanderburgh County Juvenile Court, on Monday granted the news media access to Vanderburgh records regarding Kalab Lay and his twin sister.

We believe Niemeier has it right in his statement on the release of the records, and we applaud him for not only assisting, but also trusting the public.

He wrote in his order that "due to our community's interest in the welfare of the Lay children, this court is granting access to the media so the public will gain new insight into the workings of the court and Department of Child Service."

Precisely.

He said that in exercising the court's discretion to release records, "the court shall consider that the best interests of the safety and welfare of the community are generally served by the public's ability to obtain information about the alleged commission of an act that would be murder or a felony if committed by an adult or the alleged commission of an act that would be part of a pattern of less serious offenses."

Posted by Marcia Oddi on April 20, 2008 12:31 PM
Posted to Indiana Courts

Ind. Gov't. - "Some county departments have cut paperwork"

The South Bend Tribune's Nancy J. Sulok writes today:

A couple of county councilmen are studying ways to cut the amount of paperwork they encounter. Heath Weaver, D-District H, and Mark Catanzarite, D-District G, traveled to LaPorte County earlier this month to observe the paperless trends there.

But some county government departments here in St. Joseph County already have grasped the digital concept.

Bill Bruinsma, director of the Thomas N. Frederick Juvenile Justice Center, said the JJC started moving toward a paperless operation in 1997, and "it's one of the most difficult things I've ever done."

"We're pretty much trying not to use paper as much as possible," said Jerry L. Johnson, chief probation officer for the county. His department's move away from paper started in 2000.

They are just two of the government departments moving away from paper.

Every department within the JJC is on a computer program known as Quest, Bruinsma said. Not much paper is kept, he said. The biggest bulk of paperwork is from documents coming into the JJC from outside, he said. But even that is scanned into the system and kept electronically.

"The filing cabinet has gone away,'' Bruinsma said.

It's gone away in the Adult Probation Department, too, Johnson said.

His department uses a program called DocuWare to keep records of everyone sentenced in the county. Records are kept from the time of sentencing until seven years after a person is discharged from the system. For a criminal who receives a long sentence, that could mean keeping records for 30 or 40 years, Johnson said.

In 2000, he said, he was looking at the potential need for dozens, if not hundreds, of file cabinets to store the 2 million documents he has on file. Storage was consuming too much office space.

Now, Johnson said, records are stored electronically and hard copies are destroyed. Out of that, he continued, came the use of e-mail to replace faxes, saving not only paper but also time and money.

Johnson said he is looking at a time when he could be totally paperless, but until the courts and the clerk's office join the effort, "we're stuck dealing with paper.''

Going paperless does not necessarily save a lot of money, Johnson said. Instead of buying file cabinets, he's buying computers, software and related items.

Posted by Marcia Oddi on April 20, 2008 12:23 PM
Posted to Indiana Government

Law - Another update on efforts to receive compensation for land taken to build Kentucky Camp Breckenridge

This ILB entry from May 22, 2007 began:

The ILB has had four earlier entries about Kentucky families' "long legal fight to get compensation for land taken from their families by the federal government to make way for a World War II training camp."

Today the Evansville Courier & Press carries this story that begins:

LOUISVILLE, Ky. — A federal judge has recommended a $34.3 million award to a group of former landowners in Western Kentucky whose property was taken to create a World War II-era military training post.

Judge Susan Braden of the U.S. Court of Federal Claims in Washington, D.C., recommended that Congress appropriate at least $34,303,980.42 in restitution for land and mineral rights lost by the landowners when the government appropriated their land to create Camp Breckinridge.

Braden issued a 53-page ruling late Friday, saying the amount represents only 27 percent of the $127 million benefit the government received from taking the land and mineral rights.

"In considering this recommendation, Congress should be mindful that the entire amount of revenue that the government received for the lease and sale of these rights is unknown, because the government failed to produce or destroyed relevant documents that would verify the correct amount," Braden wrote.

The former landowners and their heirs were finding out about the decision Saturday.

"We ought to get more than that," said William Griggs, 83, whose grandparents were forced off their land in 1942. "But if we get that much, we're fortunate." Braden's decision now goes before a three-judge panel. If the panel approves Braden's recommendation, the measure will go to Congress, which must appropriate the money before the landowners are compensated.

The long-running dispute over Camp Breckinridge involves more than 1,000 former landowners and their families in Western Kentucky that was brought against the federal government in 1993.

Posted by Marcia Oddi on April 20, 2008 12:13 PM
Posted to General Law Related

Ind. Courts - Madison County courts change to Superior

Today in the Anderson Herald Bulltetin, Derek Reiff reports:

On Jan. 1, 2009, Madison County will no longer operate county courts. A bill originally written and introduced by state Sen. Tim Lanane, D-Anderson, will take effect shortly after the November 2008 county elections.

The county currently operates Superior Courts 1, 2 and 3, in addition to County Courts 1 and 2.

The final draft, House Bill No. 1096, would abolish the only county courts remaining in Indiana. * * *

The new Superior Courts will have more jurisdiction and a broader scope of case types, with the intention of both sharing more load and moving cases through the building more quickly.

The differences in court functions are levels of severity. County Courts are allowed to see only claims below $10,000, and, in, criminal cases, County Courts can see only Class D felonies while Superior Courts can rule on Class A, B and C felonies.

Small-claims, cases involving less than $3,000, will still be handled by an established small-claims division.

Residents of Madison County will not see effects of the change.

“The current judges assured me that there would be no additional expenses; they will be able to function in the same facility and with the same staff,” Lanane added.

This page from the Indiana Courts site sets out the current Madison County court system.

Posted by Marcia Oddi on April 20, 2008 12:02 PM
Posted to Indiana Courts

Saturday, April 19, 2008

Ind. Courts - "Man Kicked Out Of Court"

Kaitlin Vanderpool reports today in the Michigan City News-Dispatch:

LA PORTE - A man sitting in the gallery was thrown out of La Porte Circuit Court Friday morning after Judge Thomas Alevizos saw him "flashing gang signs" at defendants allegedly involved in a stabbing last weekend.

"If anyone thinks this courtroom is an appropriate place to flash gang sings, you're wrong," Alevizos said, before telling the man he was not to be seen in the courtroom again unless he was a defendant.

"In which case, I'd be glad to see you in orange," Alevizos said.

The individual may have been in court Friday to witness five suspects speak in their initial hearings following what police say might have been a gang-related stabbing around 6 a.m. Saturday, April 12, in the 300 block of Maple Avenue.

Gang signs? According to this site on gang signs and symbols:

Most gangs use hand signs to identify their gang and as a form of communication. Hand signs are also used to "flash" a warning or a threat to rival gangs. Some gangs have elaborate hand and body signals, so advanced, that they can have complete conversations without saying a word. These signs are frequently used when they don't want others to know what they are about to do.

The Route 222 Corridor Anti-Gang Initiative website, sponsored through the Office of U.S. Attorney Patrick Meehan, Eastern Pennsylvania District, has an extensive section on gang signs.

Posted by Marcia Oddi on April 19, 2008 01:46 PM
Posted to Indiana Courts

Ind. Courts - Delaware County "Judicial races drawing most local campaign donations"

Rick Yencer reports today in the Muncie Star-Press:

Delaware County's contested judicial races -- especially the campaign for the Democratic nomination in Circuit Court 5 -- are drawing the most money in advance of the May 6 primary election.

Friday marked the deadline for pre-primary reports of candidates seeking election in the primary.

"With high interest in presidential and gubernatorial contests, there has been a strain on money coming to local candidates," said Allie Craycraft, vice chairman of the Delaware County Democratic Central Committee.

Muncie City Court Judge Linda Ralu Wolf -- in a Democratic primary race with Deputy Prosecutor Joe Orick for the Circuit Court 3 nomination -- donated the entire $8,000 in contributions reported by her campaign committee, spending $6,702 on billboards and advertising.

Orick raised $13,121, from friends, relatives and fellow members of Prosecutor Mark McKinney's staff. He also donated $3,050 to his campaign.

In the Democratic race for judge of Circuit Court 5, Democrats Tom Cannon Jr., Ron Henderson and Kimberly Dowling had combined raised more than $45,000, making it the biggest spending of the local races.

Cannon raised the most money of any judicial candidate, $21,097, with Henderson next at $14,250, and Dowling third at $10,045.

"We have not had a lot of fundraisers," said Larry Dailey, Cannon's campaign treasurer.

Cannon and his wife put $10,000 of their money into the campaign while Dailey, and attorney and son of Circuit Court 2 Judge Richard Dailey, added another $2,500, with the balance from other contributors.

Henderson -- who has had fundraisers at Democratic Party headquarters -- contributed $6,400 to his own campaign, with the rest of his money coming from about 20 other contributors.

In the Republican race for Circuit Court 3 judge, Mark Delgado reported $8,536 in contributions, while GOP primary opponent Judi Calhoun had $3,598. Both candidates listed largely unitemized contributions.

"For the most part, we have not used our own money," said Delgado, who held a fundraiser Friday and maintained no one had turned him down for a contribution.

Longtime Circuit Court 3 Judge Robert Barnet Jr. has announced plans to retire at year's end, while Circuit Court 5 Judge Wayne Lennington has resigned effective next month in the wake of criminal and professional misconduct investigations. Both men are Democrats.

Posted by Marcia Oddi on April 19, 2008 10:11 AM
Posted to Indiana Courts

Environment - "Corn-Based Ethanol Tied to Higher Food Costs"

Siobhan Hughes of the WS Journal reports today:

Energy Secretary Samuel Bodman said Friday that the growing emphasis on corn-based ethanol has contributed to higher food prices, and he said the nation should begin "moving away gradually" from ethanol made from food such as corn.

"As we pursue diversity in our overall energy mix, we must also pursue diversity in our biofuels," Mr. Bodman said at a conference in Alexandria, Va. "This means moving away gradually from ethanol produced from foodstocks like corn."

Mr. Bodman's remarks come as efforts to make motor-vehicle fuels from grains such as corn are coming under fire amid soaring world food prices and food riots in several countries. A U.N. report Tuesday called biofuels a "crime against humanity."

Also today, a brief story by Joy Leiker in the Muncie Star-Press, headed "Court decision looming for Blue River Ethanol plant." Some quotes:

On Friday, Randolph County Judge Peter Haviza, the special judge appointed to the Henry County case, heard a final hour's worth of arguments from six attorneys representing various parties, including residents who live near the Mount Summit site, landowners, the planning commission and zoning administrator

His decision will come nearly a year after a group of residents, those who live closest to the plant site along Henry County Road 400-N, sued. Until the litigation is settled, there will be no construction.

Posted by Marcia Oddi on April 19, 2008 09:57 AM
Posted to Environment

Friday, April 18, 2008

Ind. Decisions - No transfer list for week of April 18th, 2008

No transfer list was issued by the Supreme Court for the week ending April 18, 2008.

Posted by Marcia Oddi on April 18, 2008 04:50 PM
Posted to Indiana Transfer Lists

Ind. Courts - "Judicial Candidates Sue to Protect Judicial Speech Rights"

From a press release this afternoon from Indiana attorney James Bopp, Jr.:

Two Indiana judicial candidates filed suit today in federal court to block enforcement of Indiana rules prohibiting them from responding to a survey asking their views on abortion, euthanasia, and other issues. Judge David Certo, a Superior Court Judge in Marion County, and Torrey Bauer, a candidate for Superior Court Judge in Kosciusko County are joined in the suit by Indiana Right to Life Committee, a non-profit organization.

The case arises out of a survey Indiana Right to Life sent to candidates for judicial office in the May 2008 election, requesting that they state their views on policies and court decisions related to abortion, euthanasia, and other related issues . Several of the judicial candidates refused to do so, especially in view of a Preliminary Advisory Opinion issue by the Commission on Judicial Qualifications that warned that judicial candidates who make “broad statements on disputed social and legal issues” run the risk of violating the Indiana Code of Judicial Conduct.

Indiana Right to Life had previously challenged these Indiana rules during the 2004 election. But while a federal district court initially found the Canons in question unconstitutional, the case was ultimately dismissed on the grounds that Indiana Right to Life had not shown there were any judicial candidates who wanted to answer its questions.

That’s not a problem this time, as two of Indiana Right to Life’s co-plaintiffs are candidates for judicial election in 2008.

According to Terre Haute attorney James Bopp, Jr., lead counsel for the plaintiffs, the Indiana rules “contradict the U.S. Supreme Court, which clearly stated that judicial candidates have a right to respond to surveys like this and that voters have a right to hear what they have to say.” Bopp, who argued the case challenging the Minnesota judicial rule struck down by the U.S. Supreme Court in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), stated that Indiana’s rules and policy were being interpreted to suppress the same sort of free speech that Minnesota had tried to punish. “Judicial candidates should be able to respond to questions about their beliefs so that voters will have something more to vote on other than their names, law school rank, and date of birth,” said Bopp.

Plaintiffs have asked for a temporary restraining order so that judges may respond to Indiana Right to Life’s survey without fear of disciplinary action prior to the May 6 primary.

The case is Bauer v. Shepard, et al., No. 08-CV-196 (N.D. Ind. Apr. 18, 2008). Links to follow.

Judge Certo was appointed to the Marion County bench by Governor Daniels. Mr. Bopp is Indiana Republican National Committeeman, appointed by Governor Daniels.

Posted by Marcia Oddi on April 18, 2008 03:23 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)

For publication opinions today (1):

In Robert & Melinda Sexton, Stephanie & Craig Flinn, David & Gail Helt, et.al. v. Jackson County Board of Zoning Appeals and members, et.al., an 11-page opinion, the dispositive issues were:

I. whether the trial court properly determined that the Appellants did not have standing to petition for the writ of certiorari; and II. whether the trial court abused its discretion in determining that no violation of the Indiana Open Door Law (“IODL”) occurred.

At issue is the Jackson County Board of Zoning Appeals (“BZA”) grant of a special exception to build and operate a concentrated animal feeding operation (“CAFO”). The Appellants lived near the site of the proposed CAFO, ranging from 1200 feet away to a half a mile away.

Judge Barnes writes:

[I. Standing] We conclude that the proximity of the Appellants’ properties to the alleged harm is not dispositive in determining whether they have standing. The Appellants presented evidence showing that they will suffer a pecuniary loss by the granting of Lykins’s permit. This is sufficient to show that they are “aggrieved” and therefore sufficient to establish that they have standing to petition for a writ of certiorari. The trial court’s findings and conclusions to the contrary are clearly erroneous.

Although the trial court concluded that the Appellants did not have standing, it appears to have analyzed whether there is sufficient evidence to support the BZA’s approval of Lykins’s application and concluded that there was sufficient evidence to support the BZA’s decision. This analysis, however, did not address all of the Appellants’ claims. Based on our conclusion today, we remand for consideration, or reconsideration as the case may be, of the claims in the Appellants’ petition for writ of certiorari in light of the fact that they have standing to pursue the claims. * * *

[II. Indiana Open Door Law] The Appellants also argue that the trial court improperly failed to consider supplemental evidence relating to its IODL claim. Specifically, during the October 11, 2005 BZA hearing, approximately twenty-two minutes are not included in the transcript after the first vote but before the second vote. The Appellants allege that during this time, the four BZA members “deliberated, in whispering tones out of earshot of the public and their recording equipment.” In their petition, the Appellants alleged that this action was in violation of IODL. * * *

We cannot resolve this question, however, because the Appellants were not permitted to supplement the record. During the trial court proceedings, the Appellants sought to supplement the record with a videotape of the October 11, 2005 hearing, an advisory opinion for the Indiana Public Access Counselor, and a letter from the Jackson County Council notifying a BZA member that his appointment to the BZA had been revoked. The trial court ultimately struck the supplemental evidence and concluded that no IODL violation occurred. * * *

Although the trial court was not required to consider supplemental evidence, it should have done so here. At issue is the conduct of the BZA members during the hearing—certainly the Appellants should have been able to supplement the record with evidence of what happened during the hearing. Further, Lykins and the BZA’s arguments against the supplementation of the record go to the weight of the evidence, not to whether the record should be supplemented. * * *

Conclusion. The Appellants are aggrieved by the BZA’s decision and have standing to petition for a writ of certiorari. The trial court improperly failed to supplement the record regarding the Appellants’ IODL claim. Accordingly, we reverse and remand for the trial court to consider the merits of the Appellants’ claims in light of our decision. We reverse and remand. Reversed and remanded.

NFP civil opinions today (3):

Regina Webb v. Review Board of Ind. Workforce Development and Veterans of Foreign Wars (NFP) - "We restate the issue presented by Webb as whether the Board erred in concluding that she left her employment without good cause in connection with her work. We affirm."

Lloyd E. Philpott v. Nola L. Philpott (NFP) - "In light of the foregoing evidence most favorable to the trial court’s judgment, we conclude that Husband has failed to establish that the trial court abused its discretion in dividing his pension and the equity in the marital residence equally between the parties. See Grimes v. Grimes, 722 N.E.2d 374 (Ind. Ct. App. 2000) (finding no abuse of discretion in equal division of husband’s retirement plan, where parties were separated eight years prior to wife petitioning for dissolution and wife did not work for first nineteen years of marriage), trans. denied. Consequently, we affirm the dissolution decree. Affirmed."

Barry Geyer v. Terry (Geyer) Serie (NFP) - "In rare cases, one parent has been ordered to reimburse the other parent for college expenses already paid. * * * Such circumstances as fraud or contempt of court are not present here.

"Here, the trial court concluded that Mother was not required to reimburse Father for tuition payment made to the university because (1) Father failed to move to stay the execution of the trial court’s judgment pursuant to Indiana Trial Rule 62(B)(5) or to post bond to stay upon appeal pursuant to subsection (D); and (2) Mother did not mislead Father or reap a direct financial benefit to herself. The evidence of record supports the trial court’s refusal to order reimbursement upon equitable grounds. Father has demonstrated no clear error. Affirmed."

NFP criminal opinions today (8):

Buford Earls v. State of Indiana (NFP)

Cero W. Russell v. State of Indiana (NFP)

Dennis Mikel v. State of Indiana (NFP)

Raymond Cowan v. State of Indiana (NFP)

Joseph Pryor v. State of Indiana (NFP)

Joe E. Markley v. State of Indiana (NFP)

Jason Aliff v. State of Indiana (NFP)

Kevin R. Perkins v. State of Indiana (NFP)

Posted by Marcia Oddi on April 18, 2008 01:35 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Memorandum Decisions Reclassified as For Publication"

This is great. I just noticed it today, although it may have been up for much longer. It is something this blog in the past has mentioned as needed.

The Indiana Appellate Opinions page now has a link to a list of "Memorandum Decisions Reclassified as For Publication," with the explanation:

The Indiana appellate opinions below were originally classified as Not-for-Publication Memorandum Decisions when handed down by the Court of Appeals, see Ind. Appellate Rule 65(A), but later reclassified as For Publication by Court order. Opinions are listed in reverse chronological order by date of the order reclassifying the opinion. The "Decision Issued" column lists the original date of issuance. This list includes only opinions ordered published after 01/01/2007.

The list, as of today, contains 22 opinions, since the beginning of 2007, reclassified from NFP to FP. This means that the limitation of Rule 65(D) not longer applies to these reclassified opinions:

(D) Precedential Value of Not-For-Publication Memorandum Decision. Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.

Posted by Marcia Oddi on April 18, 2008 01:12 PM
Posted to Ind. App.Ct. Decisions

Courts - "When the Ex Blogs, the Dirtiest Laundry Is Aired"

Leslie Kaufman of the NY Times has this long story today. Some quotes on the legal aspects:

In separation, of course, one person’s truth can be another’s lie. Often the postings are furtive. But even when the ex-spouse is well aware that he or she is starring in a blog and sues to stop it, recent rulings in New York and Vermont have showed the courts reluctant to intervene. * * *

In a decision only weeks ago, however, a justice of the Supreme Court of the State of New York said his complaints [a husband who sued arguing his ex-wife's podcast contained "statements that were 'obnoxious, derogatory or offensive' and that they violated the terms of the divorce settlement that she not 'harass' or 'malign' him"] were not grounds for blocking the podcast. While Laurie’s statements may be “ill-advised and do not promote co-parenting,” the court wrote, they were covered by the First Amendment.

Obviously, divorce lawyers are taking note. Deborah Lans of Cohen Lans, a Manhattan law firm with a thriving matrimonial practice, said, “The last thing you want to see is angry people making uncontrolled statements.”

Ms. Lans said her divorce agreements included a confidentiality provision that forbade either party to publish even fictionalized accounts of the marriage, but not every lawyer insists on that. The judge in Laurie’s case explicitly noted that her agreement did not have such a provision.

Earlier this year, a court in Vermont did tell William Krasnansky to take down his lightly disguised account of his divorce, in which he described his ex-wife in an unflattering light and blamed her for forcing him to sell their home at “a ruinous loss.” Mr. Krasnanksy’s ex-wife had complained that it was “defamatory.” But weeks later, after a firestorm of criticism, the court reversed itself and gave him the right to continue to publish.

Posted by Marcia Oddi on April 18, 2008 10:08 AM
Posted to Courts in general

Ind. Decisions - "Who gets bill for juvenile facilities?"

Yesterday afternoon a panel of the Indiana Court of Appeals heard oral arguments in the case of Marion County, et al vs. State of Indiana, et al.. (See ILB "Upcoming oral arguments" entry, from April 14th.)

Jeff Parrott of the South Bend Tribune reports on the case today. Some quotes:

St. Joseph County and the state of Indiana moved closer Thursday to resolving their long-standing dispute over who should pay for juvenile detention costs by arguing their cases before the Indiana Court of Appeals.

The property tax overhaul bill signed into law this year by Gov. Mitch Daniels shifts those costs to the state, and reduces the county tax levies by which counties raised those funds, effective July 1. But the legal case covers costs incurred in 2003, 2004 and part of 2005.

The county, along with co-plaintiff Marion County, sued the state in 2005 after the state tried to recover $75 million it had spent in operating juvenile detention facilities. The state said Marion County owed it $67 million in arrearage, while St. Joseph County owed more than $7 million.

A Shelby County trial court judge last spring ruled in favor of the state, prompting the counties to appeal.

The state pays to house adults in prison but traditionally has made counties share half the costs of detaining juveniles.

The state constitution declares that "The General Assembly shall provide institutions for the correction and reformation of juvenile offenders." But the legislature in 1953 enacted a law allowing the state to charge counties for housing juveniles in the Indiana Boys' and Girls' Schools.

The counties say that law violated the constitution.

The state argues, among other things, that the counties lack legal standing to sue the state over such a constitutional claim, and that the counties are instead trying to assert the rights of their residents, according to a synopsis of the case provided by the Court of Appeals staff. The counties have standing only to assert rights belonging to the counties as entities, the state argues. * * *

The three-judge appeals panel heard the arguments, limited to 20 minutes by each side, at the University of Southern Indiana in Evansville. The court took the case under advisement and will issue a ruling later.

Posted by Marcia Oddi on April 18, 2008 08:31 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: "Judge: 'God' plates OK without fee"

Niki Kelly's story in the Fort Wayne Journal Gazette this morning adds:

The American Civil Liberties Union of Indiana filed suit last April on behalf of Fort Wayne resident Mark E. Studler.

The lawsuit alleged that the BMV gave preferential treatment to motorists wanting the plates, which also feature the American flag, because they don’t have to pay the $15 administrative fee that the agency collects on sales of most other Indiana specialty plates.

The BMV charges the administrative fees in addition to other costs of up to $25, with proceeds supporting the causes of the groups or universities.

“We weren’t challenging the message of ‘In God We Trust,’ just that any other message plate has a cost to it,” ACLU-Indiana attorney Ken Falk said.

He said the trial court accepted the state’s argument that the “In God We Trust” plate is a regular plate and not a specialty plate, and therefore not a violation of the Indiana Constitution.

But Falk said an appeal to the Indiana Court of Appeals is likely.

Studler’s phone number is unlisted and he could not be reached by The Journal Gazette.

At the time Studler filed the lawsuit, he said he liked the “In God We Trust” plate but it irked him that for years, he has had to pay a $15 administrative fee to the BMV for his specialty environmental plate.

It’s about fairness, Studler told The Journal Gazette in April 2007. If he has to pay a fee, then so should the people who buy the “In God We Trust” plates. Either that or the administrative fee for other specialty plates should be eliminated, he said.

Posted by Marcia Oddi on April 18, 2008 08:21 AM
Posted to Ind. Trial Ct. Decisions

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Legal Blawgs Web Archive Collection

Legal Blawgs Web Archive Collection

The Indiana Law Blog

Focus is on Indiana law, and on interesting developments in law, government, and more (not just in Indiana).

Thursday, May 01, 2008

Ind. Courts - Senate hearing today on nominee to fill SD Ind. seat vacated by Judge Tinder's appointment to 7th Circuit

Ind. Courts - "Howard County Judge accuses deputy prosecutor of drug use"

Ind. Courts - "Should drug-addicted pregnant women be criminalized?"

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

Ind. Courts - Judge John T. Sharpnack will retire from the Indiana Court of Appeals on Friday

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

Ind. Decisions - Court grants transfer in four cases

Ind. Law - More on: Well-known Merrillville attorney killed in car crash

Ind. Decisions - Sentence of Pendleton woman for shooting her husband to death while he slept upheld

Courts - "U.S. Appeals Court Rejects NY City’s Suit to Curb Guns"

Ind. Courts - Yet more on: Judicial mandate mentioned in Carroll County

Wednesday, April 30, 2008

Ind. Gov't. - More on: Wondering if you can vote in the Democratic primary?

Courts - "Supreme Court is rejecting broad legal challenges"

Ind. Decisions - Supreme Court declares search illegal in decision today

Ind. Decisions - Court of Appeals issues 3 today (and 21 NFP), including an appeal lost in the Clerk's office until last month [UPDATED]

Environment - "CAFOs rule Randolph commissioner race"

Law - Interesting juxtaposition of legal views this week

Ind. Law - Well-known Merrillville attorney killed in car crash

Ind. Law - Is ACLU-Indiana on a losing streak?

Ind. Law - More on: Sommer Barnard may merge with Cincinnati firm

Tuesday, April 29, 2008

Ind. Gov't. - "Advocacy groups say Indiana's law, regulations are among top 6 in nation"

Ind. Decisions - Court of Appeals issues 6 today (and 5 NFP)

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

Ind. Decisions - Supreme Court rules re duty of broker

Ind. Decisions - "Appeals court upholds Glenn murder conviction"

Ind. Law - Sommer Barnard may merge with Cincinnati firm

Courts - Still more on: Supreme Court rejects voter ID law challenge

Monday, April 28, 2008

Courts - More on: Supreme Court rejects voter ID law challenge

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

Courts - Supreme Court rejects voter ID law challenge [Updated]

Law - More on "Ave Maria Law Wants To Sell Its Naming Rights"

Courts - Justice Scalia interview

Ind. Decisions - Upcoming oral arguments this week

Sunday, April 27, 2008

Environment - "Interpretation of state law led to 20-day BP public hearing notice"

Ind. Courts - Even more on "Judicial Candidates Sue to Protect Judicial Speech Rights"

Saturday, April 26, 2008

Law - U.S. Senate kills bill to right the wrongs of Ledbetter

Friday, April 25, 2008

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

Ind. Decisions - Court grants transfer in three cases

Ind. Decisions - "This is one of those cases that gives lawyers a bad name"

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

Ind. Courts - More on Monroe County Circuit Judge Division 6 primary race

Ind. Decisions - Even more on: Jeffersonville bans sex offenders from parks

Ind. Decisions - "ACLU to appeal loss in BMV case"

Thursday, April 24, 2008

Ind. Decisions - "Dueling awareness days and accompanying t-shirts"

Ind. Decisions - Court of Appeals issues 0 today (and 10 NFP)

Ind. Courts - "Veolia accused of failing to read meters regularly and overestimating usage"

Ind. Law - More on "Vigo’s Ephedrine ordinance could be revamped"

About this blog - Still more on: Announcement from the ILB editor

Wednesday, April 23, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 11 NFP)

Ind. Decisions - More on: Indiana photo-ID decision coming tomorrow?

Ind. Courts - Still more on "Judicial Candidates Sue to Protect Judicial Speech Rights"

Ind. Courts - More on: Muncie and Terre Haute mayoral election contests continue

Tuesday, April 22, 2008

Ind. Courts - Indiana Court Times, March/April 2008, is available online

Courts - Intensive competition for Supreme Court clients described

Ind. Decisions - Court of Appeals issues 3 today (and 16 NFP)

Ind. Courts - Favorite headlines this morning

Monday, April 21, 2008

Ind. Decisions - More on: Supreme Court holds Three Strikes Law unconstitutional

Ind. Courts - More on "Judicial Candidates Sue to Protect Judicial Speech Rights" [Updated]

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

Ind. Decisions - Indiana photo-ID decision coming tomorrow?

Ind. Decisions - Upcoming oral arguments this week

Sunday, April 20, 2008

Ind. Courts - "If the public is to not only understand the procedures in place for protecting children from abuse and neglect, but also to influence change in those procedures when necessary, it must have information"

Ind. Gov't. - "Some county departments have cut paperwork"

Law - Another update on efforts to receive compensation for land taken to build Kentucky Camp Breckenridge

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