Thursday, June 05, 2008

Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)

For publication opinions today (2):

In Cherokee Air v. Burlington Insurance Co. , a 10-page opinion, Chief Judge Baker writes:

Appellant-defendant Cherokee Air Products, Inc., f/k/a Tippmann Pneumatics, Inc., L.P. (Cherokee), appeals the trial court’s order setting aside its previous entry of default against appellee-plaintiff Burlington Insurance Company (Burlington). Cherokee argues that the trial court erred by setting aside the entry of default against Burlington. Finding no error, we affirm. * * *

[I]t has already been fully and finally decided that PMI is not liable on the precise facts and claims that Cherokee is asserting against Burlington. Thus, to hold Burlington liable under these circumstances would be absurd, inequitable, and unjust. Although we do not celebrate Burlington’s inexplicable failure to respond to Cherokee’s counterclaim, given these facts and our general predilection to decide cases on their merits, we find that the trial court did not abuse its discretion by setting aside the entry of default against Burlington and entering final judgment in its favor. The judgment of the trial court is affirmed.

In Homer Barger v. Tammy Barger, a 7-page opinion, Judge Barnes writes:

Homer M. Barger, Jr., (“Husband”) appeals from the trial court’s issuance of a protective order against him and for the protection of Tammy Sue Barger (“Wife”). We reverse.

Issue. Whether the trial court’s grant of the protective order was proper. * * *

Husband correctly asserts that Wife’s testimony contained multiple or double hearsay. “Double hearsay” is “a hearsay statement that contains further hearsay statements within it, none of which is admissible unless exceptions to the rule against hearsay can be applied to each level.” Black’s Law Dictionary 739 (8th ed. 1999). Indiana Evidence Rule 805 states that hearsay within hearsay “is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule . . . .”

Wife’s double hearsay-laden testimony at the hearing did not bear sufficient indicia of reliability to warrant its admission into evidence. Thus, there is considerable reason to question the reliability of her statements. * * *

The absence of corroborating witnesses is further compounded by Wife’s refusal to testify to any alleged acts of violence toward her by Husband. * * *

Based upon the foregoing, Husband has proven prima facie error. The trial court erred when it granted Wife’s petition for an order of protection after finding that Wife’s double hearsay-laden statements were admissible hearsay. Given the dearth of corroborating witness testimony and Wife’s evasiveness, we find that the record simply does not support a finding that Husband threatened to kill Wife. Thus, we must reverse the trial court’s order granting the order of protection, and find that it committed an abuse of discretion in so doing. Reversed.

NFP civil opinions today (4):

Double J Ranch v. Mark Wiley Trust (NFP) - "Double J Ranch, L.L.C. (“Double J”) appeals from the trial court’s order setting aside a 2004 tax sale and denying Double J’s verified petition for tax deed. * * *

"The bottom line is that the Auditor’s office placed the surplus from the tax sales into the tax sale surplus fund contrary to the Indiana Code. That noncompliance with the applicable statutes invalidates the tax sale. See MJ Acquisitions, Inc. v. Tec Investments, 863 N.E.2d 379, 382-83 (Ind. Ct. App. 2007) (holding tax sale process requires material compliance with each step of the governing statutes). The trial court did not err when it set aside the tax sale and denied Double J’s petition for tax deed. Affirmed."

Term. of the Parent-Child Rel. of D.D.S., and D.T. (Mother) v. Greene Co. Dept. of Child Services (NFP) - "Given the ample evidence that the conditions resulting in D.D.S.’s removal will not be remedied, we find no error in terminating Mother’s parental rights. Affirmed."

Greg Green v. Jenny J. Green (NFP) - "In sum, the trial court expressly found evidence of $25,000 in debt owed to Lawyers Excavating, Inc., and it also expressly found that Greg owed Jenny seventy percent of her attorney’s fees. Further, neither of the parties disputed the existence or value of Jenny’s 401(k) account. However, the debt to Lawyer’s Excavating, Jenny’s 401(k) account, and Greg’s payment of Jenny’s attorney’s fees are not incorporated into the trial court’s Exhibit A, in which the court valuated and distributed the marital assets. Accordingly, we reverse the trial court’s judgment pertaining only to those three issues and remand to the trial court for clarification. In all other respects, we affirm the judgment of the trial court."

In Marriage of Kimberlee (Harstad) Baldwin v. Larry Harstad, Jr. (NFP) - "We conclude that the trial court did not abuse its discretion when it denied Mother’s motion to modify custody. We also conclude that the trial court did not abuse its discretion when it permitted unsupervised parenting time pursuant to Indiana Parenting Time Guidelines. Affirmed."

NFP criminal opinions today (10):

Danny W. Brooks v. State of Indiana (NFP)

John David Haddix v. State of Indiana (NFP)

David T.J. Tuggle v. State of Indiana (NFP)

Angel Aleman Gonzalez v. State of Indiana (NFP)

Steven Mayberry v. State of Indiana (NFP)

Ronnie L. West II v. State of Indiana (NFP)

Isaiah N. Eskew v. State of Indiana (NFP)

Joseph Sellers v. State of Indiana (NFP)

Patrick Davis v. State of Indiana (NFP)

Donielle Sherley v. State of Indiana (NFP)

Posted by Marcia Oddi on June 5, 2008 12:08 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today

In Pavey v. Conley (ND Ind., CJ Miller), a 6-page opinion, Judge Posner writes:

The question presented by this interlocutory appeal under 28 U.S.C. § 1292(b) is whether a prisoner plaintiff in a suit for damages governed by the Prison Litigation Reform Act is entitled by the Seventh Amendment to a jury trial on any debatable factual issues relating to the defense of failure to exhaust administrative remedies. The district court answered yes. * * *

The generalization that emerges from these examples and others that might be given is that juries do not decide what forum a dispute is to be resolved in. Juries decide cases, not issues of judicial traffic control. Until the issue of exhaustion is resolved, the court cannot know whether it is to decide the case or the prison authorities are to. * * *

The sequence to be followed in a case in which exhaustion is contested is therefore as follows: (1) The district judge conducts a hearing on exhaustion and permits whatever discovery relating to exhaustion (and only to exhaustion) he deems appropriate. (2) If the judge determines that the prisoner did not exhaust his administrative remedies, he will then determine whether (a) the plaintiff has unexhausted remedies, and so he must go back and exhaust; (b) or, although he has no unexhausted remedies, the failure to exhaust was innocent (as where prison officials prevent a prisoner from exhausting his remedies), in which event he will be allowed to go back and exhaust; or (c) the failure to exhaust was the prisoner’s fault, in which event the case is over. (3) If and when the judge determines that the prisoner has properly exhausted his administrative remedies, the case will proceed to pretrial discovery, and if necessary a trial, on the merits; and if there is a jury trial, the jury will make all necessary findings of fact without being bound by (or even informed of) any of the findings made by the district judge in determining that the prisoner had exhausted his administrative remedies.

We emphasize that discovery with respect to the merits must not be begun until the issue of exhaustion is resolved. If merits discovery is allowed to begin before that resolution, the statutory goal of sparing federal courts the burden of prisoner litigation until and unless the prisoner has exhausted his administrative remedies will be thwarted.

The judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion. must not be begun until the issue of exhaustion is resolved.

Posted by Marcia Oddi on June 5, 2008 10:57 AM
Posted to Ind. (7th Cir.) Decisions

Law - Lawsuits Test Associational Discrimination Under the ADA

"Lawsuits Test Disabilities Act: Two Cases Cite Little-Known Protections For People Who Aren't Disabled But Care For Those Who Are," was the headline of this article yesterday by Jane Zhang of the Wall Street Journal.. Some quotes:

Two lawsuits now pending could open the door to many more claims under a little-known provision of the Americans With Disabilities Act that protects the jobs of relatives and other caregivers of disabled people.

In the most prominent case, Phillis Dewitt says she was fired in 2005 by Proctor Hospital in Peoria, Ill., as a result of her disabled husband's extensive medical bills. In the other case, a couple from Wyoming employed by the same company, PacifiCorp, alleges that the utility company fired them to avoid the costs of treating their son's brain tumor. Both lawsuits argue that the plaintiffs faced "association discrimination" based on a worker's association with a disabled person. * * *

Association discrimination aims to prevent employers from discriminating against workers based on "unfounded stereotypes and assumptions about" people who care for or work with the disabled, the EEOC says. For example, it forbids businesses from firing a worker who volunteers at AIDS clinics, for fear of contracting the disease; or refusing to hire an applicant with a disabled child, assuming that the person will be unreliable at work, the EEOC says.

Legal victory in such cases, including Ms. Dewitt's, is far from guaranteed. Judge Richard Posner, a member of the Seventh U.S. Circuit Court of Appeals panel that unanimously cleared the Dewitt lawsuit for trial, laid out a strategy for the hospital in his concurring opinion: Show that she was fired strictly to cut costs -- something the law allows.

But that may not be a viable strategy for Proctor Hospital, which, in a motion to dismiss the lawsuit in the lower court, argued the opposite: that Ms. Dewitt wasn't fired for costs and that the hospital kept other workers with higher medical expenses.

Lawrence Rosenthal, a law professor at Northern Kentucky University's Salmon P. Chase College of Law and author of a paper on association discrimination, says that "very few" plaintiffs win their claims because they must establish that the relative's or associate's disability is covered under the ADA and show a direct link between that and their employer's actions.

The Dewitt opinion was issued by the 7th Circuit on Feb. 27th, 2008: access it here.

Posted by Marcia Oddi on June 5, 2008 10:37 AM
Posted to General Law Related | Ind. (7th Cir.) Decisions

Ind. Courts - Yet more on "Intricate political web unravels at Cantrell trial"

Updating the most recent ILB entry, from June 3rd, Joe Carlson of the NWI Times has a story today headed: "Cantrell's trial now focusing on daughter's court." Some quotes:

HAMMOND | When Nancy Fromm and colleague George Safana started an addiction counseling service in 1997, Lake Superior Judge Julie Cantrell was one of the first to send a few court-ordered rehabilitation clients to the firm.

And when Fromm's firm was hurting for business two years later, Fromm recruited the help of Judge Cantrell's father, Robert Cantrell, in squeezing even more clients out of her court, Fromm testified.

But it could not have been known then that Robert Cantrell, an East Chicago political operative, would eventually be criminally charged in Hammond federal court for allegedly profiting from the very kinds of deals he helped set up in his daughter's court.

A federal fraud trial for Robert Cantrell resumes today following a two-day break in testimony.

"Robert Cantrell never took one dime from any case that went through that court," defense attorney Kevin Milner said last week during Robert Cantrell's fraud trial. "Even though that was most of the money, he never took one dime of it."

Between 2000 and 2003, Julie Cantrell's court sent more than $588,000 worth of business to Fromm's firm, Addiction and Family Care Inc.

It was almost half of the $1.3 million in profits that Cantrell is alleged to have helped Fromm's business earn between June 1999 and late 2005. All told, 75 percent of Fromm's business in those years came from contracts secured by Robert Cantrell.

Robert Cantrell has admitted using his political influence to generate the contracts and then taking as much as 50 percent of the profits as a consulting fee, arguing it was a legal arrangement.

"The evidence will show there was complete transparency in all these transactions," Milner said in the trial's opening statements last week.

Assistant U.S. Attorney Orest Szewciw agreed with Milner that Robert Cantrell did not get paid for any of the work referred from Julie Cantrell's court.

But that doesn't mean he didn't use it to his advantage, Szewciw said. Rather, the business from Cantrell's court comprised part of the leverage that Robert Cantrell held over Fromm, Szewciw said.

"This was business that was brought in by him, and it could be stopped by him," Szewciw told jurors in opening statements.

Julie Cantrell could not be reached for comment Wednesday. Milner said last week the judge is likely to be called as a witness in the case.

Julie Cantrell's magistrate, Michael Pagano, declined to comment on the trial Wednesday because it is a pending case.

Posted by Marcia Oddi on June 5, 2008 08:58 AM
Posted to Indiana Courts

Ind. Gov't. - "Pence to announce Dem bid for AG"

Patrick Guinane of the NWI Times reports today:

INDIANAPOLIS | Democrat Linda Pence, an Indianapolis attorney who helped the state settle a high-profile pollution case seven years ago, said she plans to announce her candidacy for state attorney general today.

Pence, the only Democrat to publicly express interest in the post, has scheduled a fly-around with stops in South Bend, Fort Wayne, Indianapolis, Terre Haute, Sellersburg and Evansville.

"I am running for attorney general because Hoosiers need an independent voice to stand up for them," Pence said Wednesday in a statement. "Whether it's fighting mortgage and consumer fraud or battling the scourge of methamphetamine in our communities, Hoosiers deserve an attorney general who is tireless and relentless. I am ready for the challenge."

Republicans chose their nominee for attorney general earlier this week, selecting Greg Zoeller, chief deputy to outgoing Attorney General Steve Carter, over Valparaiso Mayor Jon Costas. * * *

Pence is best known for securing a more than $10 million civil settlement against Guide Corp., an Anderson, Ind., auto part company responsible for White River pollution releases that killed 117 tons of fish in December 1999. The late Gov. Frank O'Bannon, a Democrat, hired Pence to lead the case, which also resulted in $4.1 million in criminal penalties secured by federal prosecutors.

Posted by Marcia Oddi on June 5, 2008 08:55 AM
Posted to Indiana Government

Environment - "Congress asks about trailers made in state"

Maureen Groppe of Gannett reports today in a story that begins:

WASHINGTON -- Congress wants the presidents of four Indiana trailer manufacturers to testify under oath about high formaldehyde levels found in trailers they sold the federal government as temporary homes for hurricane victims.
Advertisement

The House Oversight and Government Reform Committee sent letters yesterday to the four Elkhart County-based companies -- Gulf Stream Coach Inc., Pilgrim International Inc., Keystone RV Inc. and Forest River Inc.

The letters ask the company's presidents to testify at a July 10 hearing.

Trailers made by the companies were among those found by the Centers for Disease Control and Prevention to have significantly higher formaldehyde levels than other travel trailers purchased for victims of Hurricanes Katrina and Rita, according to the committee's chairman, Rep. Henry Waxman, D-Calif.

See related ILB entries here.

Posted by Marcia Oddi on June 5, 2008 08:49 AM
Posted to Environment

Ind. Law - "Bloomfield to 'test' golf carts on the streets this weekend"

Timberly Ferree of the Greene County Daly World reported June 3rd:

Look for golf carts on the streets of Bloomfield this Saturday and Sunday.

During a two-hour meeting on Tuesday, the Bloomfield Town Council voted 2-1 to suspendthe town's no golf cart ordinance with several requirements for the 48 hour period--which includes the annual town-wide yard sale event Saturday.

Board President Jo Ann Carmichael along with Board member Aaron Hamm voted to suspend the ordinance while Council Member Roger Doane cast the dissenting vote.

Requirements on the ordinance suspension in part include: the operators must hold a valid driver's license and proof of insurance, along with vehicle requirements that include head and tail lights and a slow moving vehicle emblem. The carts must also be registered at town hall prior to Saturday. The suspension will only include the hours of 7:30 a.m. to 7:30 p.m. on both Saturday amd Sunday.

Town attorney John Rowe was requested by the council to explain the weekend suspension. "It doesn't mean the operation (of a golf cart) would be authorized," he explained, noting that the council is only suspending the ordinance. "The town doesn't sanction it. It's just not a town ordinance during that time," he added.

But, that doesn't affect state laws, he advised. State statutes pertaining to golf carts are interpreted differently. "The town police also enforce state and federal laws," Rowe said.

During discussion on the matter, Carmichael explained, "If something goes wrong and somebody does something stupid it will probably never get suspended again."

Doane warned that the state police could still ticket drivers of golf carts.

Bloomfield Police Department Chief Deputy Shane Smith added that the police would not be looking to ticket golf carts during the yard sale event, but that lifting the ordinance could cause other problems.

"It will be our (BPD) biggest problems that day trying to keep the peace between golf carts and four-wheelers," he said."I'm not saying don't do it. I'm just saying it will cause a problem."

One resident spoke up by asking, "This is such a controversy why do it?" "It's like opening up a can of worms with four-wheeler owners, she added.

Carmichael then said, "Aaron (Hamm) and I talked about golf carts before the (fall 2007) election and we were definitely for golf carts on the streets of Bloomfield...it's definitely to test the waters." Hamm agreed that the suspension would be a trial period only.

Carmichael also encouraged the BPD to write tickets if the rules of the road are not obeyed. "If a golf cart runs a atop sign I would encourage them (BPD) to give a ticket...," she said. * * *

After the meeting, Doane explained his 'no' vote by simply pointing to a list of golf cart state statutes and saying, "I think it's a tragedy waiting to happen. The State Police have blatantly said they will issue tickets."

The comments section after the story is also interesting. One comment links to this story about the Town of Portland's successful golf cart ordinance, in effect since late 2006. The details of the ordinance were covered in this Dec. 11, 2006 ILB entry.

Here are some earlier ILB entries on Bloomfield and golf carts. Here is a long list of ILB entries on golf carts and the law.

Another golf cart story, from WLKI News, dated June4th:

(ANGOLA) - The use of golf carts will continue to be banned this year in the Steuben County Park campgrounds. Steuben County Commissioners acted upon a recommendation from Park Superintendent Eric Ditmars yesterday after he met recently with a handful of campers. He listed several reasons why he felt golf carts should be banned. Topping the list was children driving the vehicles. The use of motorized wheel chairs will be allowed.

Posted by Marcia Oddi on June 5, 2008 07:23 AM
Posted to Indiana Law

Ind. Decisions - "Jeff case goes to high court: Sewer-bill collection method in dispute"

The case of Pinnacle Properties Development Group, LLC v. City of Jeffersonville, Indiana, which was on the May 30th Supreme Court transfer list (see ILB entry here), is the subject of a story today by Ben Zion Hershberg in the Louisville Courier Journal. Some quotes:

The Indiana Supreme Court has agreed to consider a Jeffersonville case that could affect the finances of municipal sewer departments statewide.
Advertisement

At issue is a dispute between Jeffersonville and Pinnacle Properties Development Group LLC, a large owner and operator of apartment buildings and other real estate in the city.

In a lawsuit, Pinnacle challenged the method -- used by many cities -- to make landlords responsible for unpaid sewer bills of apartment tenants, said Perry McCall, Pinnacle's lawyer.

Jeffersonville has simply transferred delinquent bills to landlords' accounts after a certain amount of time, he said.

Pinnacle contends that state law requires the city to notify the property owner about a tenant's unpaid bill and then take the more formal step of filing a lien against the property to make the owner legally responsible.

Former Clark County Circuit Judge Daniel Donahue upheld the city's procedure. But the Indiana Court of Appeals overturned that ruling in October, saying the city's sewer ordinance "does not provide a mechanism for collection."

Under state law, the city can collect delinquencies from deposits if apartment tenants have been required to pay a deposit for sewer service, the court of appeals said. But in the absence of such deposits, the court said, the city must file a lien against the property owner.

Scott Lewis, the lawyer for Jeffersonville, said yesterday that he was pleased that the Supreme Court had agreed to take the case. The decision reflects the potential statewide impact, he said, and indicates the court believes there's enough substance to his arguments to review them. * * *

The Supreme Court said it did not anticipate holding oral arguments in the case.

Posted by Marcia Oddi on June 5, 2008 07:14 AM
Posted to Indiana Transfer Lists

Wednesday, June 04, 2008

Ind. Decisions - Yet another decision today from the Supreme Court

In Adkins v. State, a 6-page, 5-0 opinion, Justice Sullivan writes:

Henry Adkins was convicted of pointing a firearm as a Class D felony. He contends that the jury was incorrectly instructed that he, rather than the State, had the burden of proving that the gun was unloaded. Had there been any evidence that his gun was unloaded, he would be correct. Because there was not, the instruction constituted harmless error.

Note that this is the second case today where the Court singles out for approval an Appeals Court opinion by Judge Crone: (1) writing in dissent in today's trampoline case (Kopczynski), and (2) with a concurring opinion in Adkins.

Posted by Marcia Oddi on June 4, 2008 04:56 PM
Posted to Ind. Sup.Ct. Decisions

Courts - Still more on "California Supreme Court says same-sex couples have right to marry" [Updated]

Updating this ILB entry from May 18th, the California Supreme Court today has denied a request for a rehearing and a stay of the May 15th decision. From an AP report:

Wednesday's denial clears the way for gays and lesbians in the nation's most populous state to get married starting June 17, when state officials have said counties must start issuing new gender-neutral marriage licenses.

[Updated] The ABA Journal Blog has an entry this afternoon with links to several news stories on the denial. Some quotes:

Setting the stage for a potential confrontation among states about the marital rights of same-sex couples to start sooner rather than later, the California Supreme Court today refused to delay the implementation of an earlier landmark ruling finding that same-sex couples have a right to marry under the state constitution. * * *

While the gay marriages, which are expected to begin June 17, will clearly be legal in California, at least for now, efforts have already begun elsewhere in the U.S. to prevent other states from recognizing them. (Under the principle of comity, states ordinarily recognize as legal marriages that are legal in other states.)

Ordinarily. But this does not take into account states, including Indiana, that have passed the Defense of Marriage Act, or states that have adopted constitutional amendments prohibiting gay marriage.

Posted by Marcia Oddi on June 4, 2008 01:10 PM
Posted to Courts in general

Ind. Decisions - Supreme Court issues a decision today on a direct appeal

In Wayne Jewell v. State of Indiana, a 4-page, 5-0 opinion, Justice Dickson writes:

In this direct appeal, the defendant has challenged his three convictions by asserting six appellate claims as fundamental error. The Court of Appeals sua sponte recharacterized three of these as issues of ineffective assistance of counsel and denied relief, but reversed two of the three convictions on other grounds. Jewell v. State, 877 N.E.2d 864, 872-73 (Ind. Ct. App. 2007). Urging that he did not present any direct appeal issues as claims of ineffective assistance and that he could present this issue in possible future post-conviction proceedings, the defendant sought transfer. We grant transfer and now reject the defendant's procedurally defaulted claims solely on grounds that they do not constitute fundamental error.

Posted by Marcia Oddi on June 4, 2008 12:58 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In Michael J. Gomez v. Alissa M.Gomez, an 11-page opinion, Judge Riley writes:

Father raises two issues for our review, which we restate as: (1) Whether the trial court abused its discretion when it admitted the Parenting Time Coordinator’s recommendation as evidence; and (2) Whether the trial court abused its discretion when it denied Father’s petition to modify parenting time. * * *

[I] From our review of the record, we would agree with Father that the Parenting Time Coordinator served a role akin to that of an expert witness who reviews information relevant to the case and develops an opinion to be accepted or rejected by the trial court. Ind. Evidence Rule 703, which permits “[e]xperts to testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field,” allows experts to rely upon hearsay when formulating opinions. See Commitment of M.M. v. Clarian Health Partners, 826 N.E.2d 90, 95 (Ind. Ct. App. 2005), reh’g denied, trans. denied. We conclude that this rule should apply, by analogy, to the Parenting Time Coordinator’s recommendation here. Therefore, we conclude that the trial court did not abuse its discretion when it admitted the Parenting Time Coordinator’s recommendation, although it was based on hearsay. * * *

[II] The Marital Settlement Agreement provided Father “additional visitation one weekday per week,” and thus, entitled Father to two midweek visits—more than the model provided by the Indiana Parenting Time Guidelines. Moreover, the trial court noted that the parents had stipulated to the authority of a parenting time coordinator, who developed a recommendation that overnight weekday visits with Father on evenings when the children would have to go to school the next morning were not in the best interest of the children. The Parenting Time Coordinator explained that he had interviewed the parents and children, and spoken with the children’s schoolteachers to develop this recommendation. For these reasons, we conclude that the trial court did not abuse its discretion when it denied Father’s petition to modify parenting time.

Conclusion. For the foregoing reasons, we conclude that the trial court did not abuse its discretion when it admitted the Parenting Time Coordinator’s recommendation as evidence, or when it denied Father’s petition to modify parenting time. Affirmed.

NFP civil opinions today (4):

Jelon E. Swope v. Debby S. Swope (NFP) - "Jelon E. Swope appeals the trial court’s order as to division of assets in the dissolution of his marriage to Debby S. Swope. Jelon raises two issues, which we consolidate and restate as whether the trial court abused its discretion in the valuation and division of marital property. We affirm in part and remand in part." [ILB - This may be Judge Brown's first COA opinion, or one of the first.]

Michael and Eileen Glant v. Thomas Bovis and Elizabeth Vogel-Bovis (NFP) - "Appellants Michael Glant and Eileen Glant (collectively, “the Glants”) appeal an order of the Marion Superior Court providing that they are liable for attorney’s fees attributable to deception in a real estate transaction with Thomas Bovis and Elizabeth Vogel-Bovis (collectively, “the Bovises”). We affirm the judgment of the trial court with respect to rescission and consequential damages, but reverse the award of attorney’s fees. * * *

"[Issue] Whether there is sufficient evidence to establish that the Glants, acting with intent to defraud, misrepresented property as suitable for a building site, so as to establish a Deception claim under Indiana Code Section 35-43-5-3 and support the award of statutory attorney’s fees for a crime victim.1On cross-appeal, the Bovises raise two issues, which we consolidate and restate as the following issue: whether they are entitled to additional attorney’s fees and costs."

Chad Saylors v. Gayle Saylors (NFP) - "Chad Saylors’s (“Husband”) and Gayle Saylors’s (“Wife”) marriage was dissolved in Miami Superior Court. Husband was ordered to pay permanent maintenance to Wife in the amount of $100 per week and fifty percent of all non-covered medical expenses. Husband appeals and argues that the trial court abused its discretion when it ordered him to pay permanent maintenance to Wife. We affirm, but remand for clarification of the dissolution decree."

Invol. Term. of Parent-Child Rel. of D.C., and Jannie C. v. Marion Co. Dept. of Child Services and Child Advocates, Inc. (NFP) - "For all of these reasons, we conclude that the evidence supports the trial court’s findings that the conditions that led to the removal of D.C. will not be remedied and that termination of Mother’s parental rights is in D.C.’s best interests. Mother’s request that we determine otherwise is an invitation to reweigh the evidence, which we will not do."

NFP criminal opinions today (4):

George Koukos v. State of Indiana (NFP)

Jonathan Watkins v. State of Indiana (NFP)

Jody D. Selby v. State of Indiana (NFP)

William Bolton v. State of Indiana (NFP)

Posted by Marcia Oddi on June 4, 2008 12:45 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court rules in trampoline case

In Beth Kopczynski v. David Barger, an 8-page, 5-0 opinion, in a case argued Dec. 6, 2007, Justice Boehm writes:

This case presents two issues of first impression. We hold that under some circumstances a minor’s invitation to enter the premises may bind the landowner for purposes of premises liability, and that a trampoline may constitute an attractive nuisance. In this case both issues turn on facts not appropriately resolved on summary judgment. * * *

[W]e agree with Judge Crone that “the reasonableness of twelve-year-old Alisha’s belief that she had permission to jump on the Barger’s trampoline by virtue of six-year-old Bryan’s invitation . . . presents a genuine issue of material fact that precludes a determination of her status as a matter of law.” Kopczynski, 870 N.E.2d at 11 (Crone, J., dissenting). Summary judgment as to Count I must be reversed. * * *

The Court of Appeals held that the attractive nuisance doctrine does not apply because in general the dangers of jumping on a trampoline should be as obvious to children as “the dangers of falling from heights.” The Court of Appeals also found that the plaintiffs failed to designate evidence establishing the latent danger of jumping on a trampoline. * * *

In this case the designated evidence conflicts regarding whether Alisha could have appreciated the dangers of jumping on a trampoline, particularly with multiple jumpers. * * * Accordingly, the Bargers have not established a lack of disputed material facts with regard to the open and obvious nature to Alisha of the dangers of trampolines. * * *

The trial court’s grant of summary judgment is reversed. This case is remanded to the trial court for further proceedings consistent with this opinion.

For the COA opinion, see ILB entry here, 2nd case.

Posted by Marcia Oddi on June 4, 2008 11:42 AM
Posted to Ind. Sup.Ct. Decisions

Law - "A Deluge of Law Schools"

Leigh Jones of The National Law Journal writes today:

As many as 10 new law schools are in the works, with the majority of them proposed in the eastern part of the country.

While their proponents insist that the schools will serve the needs of their communities and beyond, the plans are drawing sharp criticism from those who argue that creating more law schools is irresponsible.

With three new law schools proposed in New York alone and others also in the early stages in Connecticut, Maine, Pennsylvania and elsewhere, developing facilities to pump out juris doctor degrees is the goal du jour for institutions looking to build a bigger name for themselves. * * *

All of those schools are in addition to University of California, Irvine Donald Bren School of Law, expected to open in autumn 2009, and at least seven other law schools that have popped up across the country in the last five years seeking accreditation by the ABA.

"This is beyond absurd," said William Henderson, a professor at Indiana University School of Law -- Bloomington. His scholarship focuses on the legal job market.

Henderson's research, which is based on data obtained from the ABA and ALM Research, a subsidiary of the parent company of The National Law Journal, shows dismal job prospects for many law graduates from lower-tier schools already in existence. New law schools, historically, have fallen into the lower tiers of the rankings by U.S. News & World Report, at least in their first years of operation.

Part of Henderson's research focuses on so-called "bad outcomes" experienced by law students, which include graduates who were unemployed nine months after graduation, graduates whose job status was unknown or students who flunked out. He determined the 50 law schools with the highest percentages of bad outcomes and revealed a range between 49.1 percent and 27.9 percent of bad outcomes among the 20 law schools with the highest percentages of such outcomes. All of those schools were ranked either in the third or fourth tier by U.S. News & World Report.

"The popular perception is that there's a big monolith of wealth," he said. "The reality is that some people are making lots of money, and a lot of people are not able to make a living." * * *

"You have to ask yourself if there is a demand for lawyers," said Thomas Guernsey, dean of Albany Law School of Union University in Albany, N.Y. He said plans for the new law schools in his area are "silly."

The perception that law schools are "cash cows" that bring in big money for universities because they have much lower overhead than other professional schools is a myth, he said.

Law schools need at least $50 million to get started, he said, and have much higher operating costs -- including career services staffers and admissions teams -- than in the past. Moreover, public law schools, which can charge lower tuition, require states to kick in the shortfall, he noted.

Because of restraint of trade issues, the ABA cannot limit the number of law schools that seek or obtain accreditation. In addition, the accreditation process does not specifically require law schools to demonstrate that their students can find employment after graduation.

"That's not the issue for us," said Hulett H. "Bucky" Askew, consultant on legal education for the ABA's Section of Legal Education and Admissions to the Bar.

The job market should be part of a feasibility study, Askew said, but the ABA's concerns are whether a law school seeking accreditation has conducted a thorough feasibility study and whether it is equipped to serve its stated mission.

The new law schools come at a time when applications nationwide are declining. The number of people applying to the 198 ABA-accredited law schools and the nine provisionally accredited schools across the country dropped for the fourth year in a row, according to the Law School Admission Council.

Preliminary figures for fall 2008 showed a 1.0 percent decline in the number of applicants, while the number of applications increased by 2.7 percent. The figures indicate that while fewer people are applying to law school, they are submitting more applications.

At the same time, salaries for the majority of law graduates are not living up to the hype of six-figure first-year pay.

According to Henderson's research, the median salary for the class of 2006 was $62,000, with half the graduates making less than $62,000. The salaries indicated a "bimodal distribution," in which 27.5 percent of the graduates made between $40,000 and $55,000, and 27.8 percent made more than $100,000.

For past talk of a new law school of Indiana, see this Dec. 28, 2005 ILB entry headed "Idea that landed with biggest thud of the year", this one from Jan. 4, 2007, headed "University of Saint Francis has begun exploring the possibility of opening a law school," and this one from Jan. 5, 2007, adding additional material.

Plus we have the "Ave Maria Law School moving to Fort Wayne?" speculation: Feb. 5, 2007, Feb. 20, 2007, and May 1, 2007.

Posted by Marcia Oddi on June 4, 2008 09:24 AM
Posted to General Law Related

Ind. Courts - "Search for the front of the Randolph County Courthouse continues"

Updatng this ILB entry from May 28th, Joy Leiker of the Muncie Star-Press reports today:

WINCHESTER, Ind. -- The search for the front of the Randolph County Courthouse continues.
Advertisement

And it looks like the only way officials are going to find the front door (actually, they're debating the front yard) is through a battle of legal interpretations of the Unified Zoning Ordinance of Randolph County.

Two weeks ago the Board of Zoning Appeals denied a variance that would have allowed a courthouse annex to be built less than 25 feet from the Franklin Street right-of-way. The denial has left county commissioners at a standstill, and the much-debated courthouse renovation and expansion vulnerable to even more public outcry.

Technically, the issue is whether the courthouse must meet the 25-foot setback from all four sides. The courthouse is built on a traditional downtown square. Four streets border the square and the city's downtown businesses all face the courthouse.

The entire area is zoned commercial, and because of that County Attorney John Tanner contends the zoning rules for commercial property don't require minimum setbacks for the sides or back of a property. Tanner said the only setback is for the front door on Main Street, the east side. Since that distance won't be affected by the pending construction project, Tanner thinks the commissioners never needed to go before the BZA in the first place.

But Cathy Flatter, executive director of the Area Planning Commission, said because the courthouse is surrounded by four streets, there are four setback requirements, one on each side of the building.

"When you have four streets there are no side or rear yards. You have to go back to the street," Flatter said Monday. She didn't attend the morning meeting of commissioners.

Posted by Marcia Oddi on June 4, 2008 09:13 AM
Posted to Indiana Courts

Ind. Law - "Red light cameras legal?"

"Red light cameras legal?" is the headlne to this story today in the NWI Times, written by Susan Brown. The report begins:

HAMMOND | When the City Council gave its approval Monday to installing red light cameras at six city intersections, it paved the way for the city to become the first community in the state to adopt the controversial automated enforcement system.

No Indiana community is among the 345 communities listed by the Insurance Institute for Highway Safety as having red light cameras.

State legislation seeking to establish red light cameras in Indiana has failed three times since 2001.

It was unclear Tuesday whether such legislation was needed for Hammond to take action to approve the system.

In an unofficial opinion rendered in 2001, the office of Indiana Attorney General Steve Carter deemed the use of the cameras on state and federal highways unlawful but did not address their use on local streets.

State Rep. David Wolkins, R-Winona Lake, said he believed the measure did require a change in law when he sponsored legislation in 2005.

"I really don't think (Hammond) has a right to do it," he said. "I don't think it falls under home rule."

Wolkins said he suspects since Hammond has approved the cameras, the question of legality may not be decided until the first ticket goes to court.

Earlier ILB entries on this topic include "Gary cameras may nab drivers who run red lights" from Nov. 27, 2007, "State may jump on red-light camera bandwagon" from Feb. 2, 2005, and "Driving to Illinois? Also, red light camera law in Indiana" from March 30, 2005.

Posted by Marcia Oddi on June 4, 2008 09:04 AM
Posted to Indiana Law

Ind. Decisions - "Attempted murder conviction upheld"

Sophia Vorovong of the Lafayette Journal Courier reports today on the Court of Appeals decision yesterday in the case of State of Indiana v. Shannon Hollars (see ILB entry here - 6th case). Some quotes:

Shannon L. Hollars, 46, has been serving time in the Clinton County Jail for dealing marijuana while the Indiana Court of Appeals considered whether he should receive a new trial for attempted murder.

In a unanimous ruling issued Tuesday, the panel of three judges found that Clinton Superior Court Judge Kathy Smith erred when she granted Hollars a new trial on grounds that his first one was not fair.

"During the sentencing hearing in this case, the trial court questioned whether an individual can form the specific intent to kill within three to five seconds after being awakened in the middle of the night," Judge Patricia Riley wrote in the 14-page opinion.

"The short answer is yes. That Hollars was able to form the necessary intent to kill may be inferred from his intentional use of a deadly weapon likely to cause death." * * *

After the trial, Hollars' attorney, Brad Mohler, filed a motion to correct errors -- claiming that he was not provided a medical record prior to the trial that might have suggested that Hollars' back was to police when he was shot in the arm.

It was part of the reason why Smith vacated Hollars' attempted murder conviction and granted him a new trial. Smith also noted when the warrant was issued -- "past midnight, after the household was asleep" -- in her decision.

The appeals court, however, found that Hollars had ready access to his own medical records and that police loudly identified themselves both before entering and once inside Hollars' home.

"The verdict returned by the jury was relative to the weight of the evidence presented. The Court of Appeals opinion shows that," Clinton County Prosecutor Tony Sommer said.

Posted by Marcia Oddi on June 4, 2008 08:51 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Township assessor sues over loss of duty"

Rebecca S. Green of the Fort Wayne Journal Gazette reports today in a lengthy story:

The Huntington Township assessor sued a number of Huntington County officials - and some state agencies - Monday, contesting recent legislation that will phase out township assessors as unconstitutional.

And amid her recitation of portions of the Indiana Constitution and the recently enacted House Bill 1001, Joan Stoffel's lawsuit outlines the jarring transfer of her office to the Huntington County assessor's last month.

Signed by Gov. Mitch Daniels in March, House Bill 1001 cut property taxes statewide by an average of 30 percent this year. One of the provisions of the law the transfer of the duties of the 966 township assessors in townships with less than 15,000 parcels to the county assessors. In the remaining 43 townships of more than 15,000 parcels, voters will decide in November whether to transfer the township assessor's duties to the county.

In early May, Attorney General Steve Carter issued a legal opinion, saying elected township assessors will continue to get their full salaries this year even though the property assessment jobs will shift to the counties' assessors in July.

Stoffel's lawsuit, filed Monday in Huntington Circuit Court, names the state, the Indiana Department of Local Government Finance, Huntington County, the Huntington County commissioners and County Council members and Huntington County Assessor Terri Boone. * * *

Stoffel's attorney, Indianapolis-based John Price, said he and Stoffel believe the township assessors should be allowed to finish out their terms, until Dec. 31, 2010, at full salary.

And he worries other township assessors will be kept from employment at the county assessors' offices, particularly if the two are from different political parties.

In her lawsuit, Stoffel is asking a judge to rule state legislators violated the state's Constitution when they passed House Bill 1001, and, among other requests, find the county-level officials interfered with Stoffel's contract between her and her constituency as an elected official, according to court documents.

Stoffel also wants a judge to grant class-action status to the case because she said she is acting on behalf of the state's township assessors, some of whom have already been told they have no job, or that they will not be paid any salary or other compensation for the rest of 2008, according to court documents.

A class certification would be welcome, said Becky Williams, Franklin Township assessor in Marion County and president of the Indiana Assessors Association.

She said she hears a lot of horror stories from township assessors around the state about what is going on during the transition before the July 1 date, such as township assessors being offered only $1 in salary a year for the remainder of their terms.

“There doesn't seem to be a lot of rhyme or reason to what is going on,” Williams said.

Attorney General Steve Carter's official opinion, HEA 1001 and Transfer of Assessor Duties, is available here.

Posted by Marcia Oddi on June 4, 2008 08:23 AM
Posted to Indiana Courts | Indiana Government

Tuesday, June 03, 2008

Ind. Decisions - Court of Appeals issues 6 today (and 10 NFP)

For publication opinions today (6):

In Term. of Parent-Child Rel. of A.B., and Angela B. and Brian J. v. Lake Co. Dept. of Child Services - a 15-page opinion, the Court reverses an involuntary termination of parental rights, on the basis that "the trial court’s judgment terminating Mother’s and Father’s parental rights to A.B. is clearly erroneous." Judge Vaidik concludes:

Although GAL Schlessinger and caseworker Kelley both recommended termination of Mother’s and Father’s parental rights because they felt it was in A.B.’s best interests to be adopted by Cyprian, this alone may not serve as a basis for termination of parental rights. A parent’s right to his or her children may not be terminated solely because a better place to live exists elsewhere. * * * Indiana Code § 31-35-2-4(b)(2) requires the LCDCS to prove, among other things, either (1) that there is a reasonable probability that the conditions resulting in removal of the child will not be remedied or (2) that continuation of the parent-child relationship poses a threat to the child’s well-being. Neither circumstance has been proven in this case. * * *

Without clear and convincing evidence to support each of the factors set forth in Indiana Code § 31-35-2-4(b)(2), we cannot affirm the termination of a parent-child relationship. Accordingly, the juvenile court’s decision to terminate Mother’s and Father’s parental rights must be set aside.

In Phillip R. Goodson v. Barbara Carlson and David Carlson, a 9-page opinion, the question is whether service of process was adequate. Judge Darden concludes:

Given the evidence, we cannot say that the Carlsons exercised due diligence in attempting to locate Goodson where the Carlsons utilized only one method to determine Goodson’s address; failed to file an alias summons after being granted leave to do so; and did not attempt further notice until nearly two years after commencement of their case. Accordingly, the trial court never obtained personal jurisdiction over Goodson, and the default judgment therefore is void.9 We reverse and remand with instruction for the trial court to grant Goodson’s motion to set aside the default judgment.

In Robert Reich v. Lincoln Hills Christian Church, Inc. , an 8-page opinion, Judge Vaidik's opinion turns on the Statute of Frauds:

Robert Reich, who had a remainder interest in a property, and Lincoln Hills Christian Church, Inc. entered into a written agreement for the exchange of two properties. Reich’s mother, who had a life estate in the property, did not sign the agreement. When the church did not follow through with the agreement, Reich sued for specific performance, and Lincoln Hills filed a motion to dismiss. Reich now appeals the trial court’s Indiana Trial Rule 12(B)(6) dismissal of his complaint. Because the written agreement neither describes with reasonable certainty each party and the land nor states with reasonable certainty the terms and conditions of the promises and by whom the promises were made in violation of Indiana’s Statute of Frauds, we affirm the dismissal of Reich’s complaint.

In Brandon Stanley v. Danny Walker , a 15-page opinion, Judge Darden states the issue as:

Whether the trial court improperly relied on Indiana’s collateral source statute as the basis for excluding Stanley’s proffered evidence of write-offs to Walker’s medical bills, offered to rebut Walker’s medical records, which omitted written-off charges and indicated that Walker had incurred greater medical expenses than he actually had.

After analysis of the common law collateral source rule and the 1986 statute, the opinion concludes:

As we are of the impression that a key policy rationale underlying the common law collateral source rule – namely, safeguarding those benefits for which the injured party “was himself responsible” – remains in effect, we must conclude that write-offs constitute insurance benefits for which the plaintiff has paid directly, and therefore, defendants cannot be allowed introduce evidence of write-offs to reduce damage awards. Restatement (Second) of Torts § 920A.

Such benefits should inure to the benefit of the plaintiffs, who had the foresight to secure insurance and to maintain their coverage through payment of their insurance premiums. That the plaintiff’s insurance company developed a relationship with the plaintiff’s medical providers such that favorable discounts and reductions in rates could be negotiated, to the plaintiff’s benefit, should not serve to diminish the tortfeasor’s liability for harm caused. Moreover, the very real potential for diminution of tortfeasor liability depending upon the insured or uninsured status of the victim further demonstrates the inherent inequity of a scheme that permits tortfeasors to present evidence of write-offs for consideration in calculating the extent of the injured party’s medical expenses.

Based upon the foregoing, we conclude that fundamental notions of tort law, surviving policy justifications of the common law collateral source rule, and concerns of equity warrant the finding that write-offs secured by insurance companies for the benefit of their insureds, constitute insurance benefits for which the plaintiff or the plaintiff’s family has paid directly, and therefore, must be excluded from consideration when calculating the extent of the injured party’s pecuniary loss. Affirmed.

In Michael A. Linton, M.D. v. Lawanda Davis, a 29-page opinion, Judge Riley writes:

Appellant-Defendant, Michael A. Linton, M.D. (Dr. Linton), appeals the trial court’s Order entered on a jury verdict awarding Appellee-Plaintiff, Lawanda Davis (Davis), damages in the amount of $1,250,000 resulting from medical mismanagement of Davis’ labor and delivery. We affirm.

Dr. Linton raises four issues on appeal which we consolidate and restate as the following three issues: (1) Whether the trial court abused its discretion by admitting into evidence testimony regarding the proceedings and rulings of the Indiana Medical Licensing Board; (2) Whether the trial court abused its discretion by excluding from evidence the Indiana Medical Review Panel’s statutory determination not to forward Dr. Linton’s name to the Medical Licensing Board; and (3) Whether the trial court abused its discretion by disallowing Ivanka Prcevski (Nurse Prcevski), called as a skilled lay witness pursuant to Ind. Evidence Rule 701, to testify about her perceptions of the baby’s well-being during Davis’ labor and delivery. * * *

Based on the foregoing, we conclude that whereas the licensure status of a physician who gives an expert opinion is admissible to impeach the physician’s opinion, the Board’s specific findings are not admissible in judicial proceedings. However, here the trial court properly admitted the specific findings because Dr. Linton opened the door to the evidence. Furthermore, we find that the trial court properly excluded the Panel’s determination not to forward Dr. Linton’s name to the Board. Lastly, we conclude that the trial court committed harmless error by refusing to admit Nurse Prcevski’s testimony.

State of Indiana v. Shannon Hollars - "The trial court granted Hollars’ motion to correct error after finding that he was deprived of due process by the cumulative effect of three perceived errors: (1) jury instructions; (2) discovery violation; and (3) timing of the execution of the search warrant. We address each factor in turn. * * *

"Based on the foregoing, we conclude that the trial court abused its discretion by granting Hollars’ motion to correct error because the three perceived errors do not warrant a new trial on the attempted murder charge, either individually or collectively. Therefore, we reverse the judgment of the trial court and direct the trial court to reinstate the jury’s verdict and Hollars’ sentence. Reversed."

NFP civil opinions today (3):

Lloyd G. Perry v. Paper Trust (NFP) - "Accordingly, we find that Perry failed to satisfy his burden of proof, and we find no abuse of discretion in denying Perry’s motion for relief from judgment."

Stephen Lagenour v. Diana Lagenour (NFP) - "Husband argues that the trial court abused its discretion by failing to grant him spousal maintenance and in equally dividing the marital property. Finding that the trial court acted within its discretion, we affirm the judgment of the trial court."

Kay Walser v. Donna Wilkins (NFP) - "Appellant-defendant Kay Walser appeals the trial court’s order affirming the decision of the Delaware County Health Department (Health Department) that directed Walser to vacate, demolish, and properly dispose of his mobile home. Walser argues that this matter should have been filed as a new complaint rather than folded into previously-filed litigation concerning other health and safety complaints regarding his property. He also contends that the evidence is insufficient to support the judgment. Finding no error, we affirm."

NFP criminal opinions today (7):

Ben Plenaar v. State of Indiana (NFP)

Jason Shelton v. State of Indiana (NFP)

Lee Hardacre v. State of Indiana (NFP)

Bradley Morgan v. State of Indiana (NFP)

Hugo Medina v. State of Indiana (NFP)

Keith Flannery v. State of Indiana (NFP)

Deborah Ann Hazel-Morphew v. State of Indiana (NFP)

Posted by Marcia Oddi on June 3, 2008 12:48 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: Indiana Supreme Court bars Geoffrey N. Fieger from temporary admission

Supplementing this May 24th ILB entry, the ABA Journal Blog has a report that not only did a Detroit federal jury acquit Mr. Fieger yesterday on charges of illegal campaign contributions, but his attorney, the legendary Gerry Spence, 80, maintained his record of having never lost a criminal trial, and insured it by announcing his retirement.

Posted by Marcia Oddi on June 3, 2008 11:09 AM
Posted to Indiana Decisions

Environment - "Corn Prices Rise, Pitting Chickens Against Ethanol"

Cindy Skrzycki writes the Tuesday column, The Regulators, for the Washington Post.. Her column today begins:

Taking corn from the mouths of chickens to put into the gas tanks of U.S. cars and trucks is causing feathers to fly in Washington.

The $40 billion chicken industry, along with livestock producers, oil interests, grocers and some environmental and anti-hunger groups are hoping to put up a regulatory blockade to stop the diversion of corn stocks into the brewing of billions of gallons of ethanol for vehicles this year.

"It has never gone up this far, this fast," Richard L. Lobb, a spokesman for the National Chicken Council in Washington, said of the jump in corn prices to $6 a bushel and more, triple what they were two years ago. "We are competing directly with the people who make ethanol, and they are outbidding us for corn."

During the past few weeks, groups hurt by the food-vs.-fuel war over the price of corn have sought waivers -- including the first official petition from the governor of Texas -- from the ethanol mandates that Congress passed as part of last year's energy bill. The exercise illustrates how a victory for one interest group, the corn farmers and ethanol producers, can trigger counter-lobbying by others.

Posted by Marcia Oddi on June 3, 2008 09:32 AM
Posted to Environment

Ind. Courts - Still more on "Intricate political web unravels at Cantrell trial"

Updating yesterday's ILB entry is this story today in the Gary Post-Tribune, reported by Andy Grimm. Headed "Witnesses tell of Cantrell's political clout." the story begins:

HAMMOND -- Witnesses called by federal prosecutors expanded the list of services available in the alleged influence-peddling case against Robert Cantrell.

A former North Township worker explained how Cantrell contacted Trustee Greg Cvitkovich to get her a job.

An East Chicago engineering contractor told of how he reached out to Cantrell to help collect a bill the city had ignored for two years, and received payment in full only days after offering to pay Cantrell $2,000 to help him collect.

Lake County Judge Jesse Villalpando took the stand and eagerly discussed how Cantrell threatened to enter candidates to run against him in the 2006 election if Villalpando didn't steer more court business to a drug counseling company Cantrell allegedly controlled.

Posted by Marcia Oddi on June 3, 2008 09:20 AM
Posted to Indiana Courts

Ind. Law - "Baker & Daniels Opens Chicago Office"

Baker & Daniels LLP issued a press release yesterday "announcing plans to establish a significant presence in Chicago with the opening of a new law office at 311 South Wacker Drive." Access the release here.

ILB Note - The ILB had to read this news in the paper, as it is not on B&D's press release list. What about your firm?

Posted by Marcia Oddi on June 3, 2008 09:13 AM
Posted to Indiana Law

Ind. Decisions - More on: U.S. Supreme Court rules on Lake County definition of "money laundering" case

Updating this ILB entry from yesterday, Warren Richey of The Christian Science Monitor has a long article today headed "Harder task to nail money launderers: Two high court rulings on Monday will complicate US efforts to prove certain crimes." It begins:

Washington - The Supreme Court has made it more difficult for the government to prove certain money-laundering crimes.

Ruling against federal prosecutors in two cases on Monday, the high court reversed the conviction of a man caught with cash hidden in his car in Texas near the Mexican border, and the court refused to reinstate a money-laundering conviction in a case involving an illegal gambling operation in Indiana.

Both decisions hold potentially important implications for crime fighting. In both cases the justices rejected the Justice Department's expansive reading of the federal money-laundering statutes.

Howard Bashman of How Appealing has collected together this morning the links to reports on the decision in the major papers.

Here in Indiana Andy Grimm of the Gary Post-Tribune has a story headed "High court back East Chicago numbers king." The interesting report begins:

East Chicago numbers king Efrain "Puerto Rican Frankie" Santos walked out of federal prison three years ago. Monday, he walked into law books.

In a ruling that will keep Santos from having to return to prison to finish a 15-year sentence, and one law enforcement officials say will make it harder to prosecute organized crime figures, in U.S. v. Santos, the Supreme Court on Monday issued a 5-4 decision to overturn Santos' 1998 conviction for money laundering.

"I was pretty sure about it all along," said Santos, who was released from federal prison in 2004 while his appeal was pending before the court.

Santos served nearly two years of the money laundering sentence, on top of a 4-year term on a separate charge of gambling for running the city's illegal lottery, or "bolita."

Though he faithfully recorded the profits he earned from bolita on his tax forms each year-- in the space for "miscellaneous" revenue-- federal prosecutors had charged Santos concealed some of the ill-gotten gains from his lottery by deducting wages and payouts to winners from the total. The additional charges carried an extra 10 years in prison.

The money laundering statute states that a crime is committed if the "proceeds" of criminal activity are hidden, but Justice Antonin Scalia, writing for the majority, stated the language should be interpreted to mean profits, not gross receipts.

"What I like is that Judge Scalia made the decision, and Judge Scalia is a conservative Justice. He said during the hearing what I said all along: 'If I play a number and I win, I want to get paid.'

"Paying winners, paying your runners, that's just what you've got to do."

See also Bill Dolan's story in the NWI Times that begins: "A local gambling legend beat the odds Monday and won a victory over federal prosecutors in a ruling that is sure to shape the definition of the crime of money laundering."

Posted by Marcia Oddi on June 3, 2008 09:00 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Federal courthouse construction starting this summer" in Terre Haute

Howard Greninger of the Terre Haute Tribune-Star reports today:

Construction is expected to start in July or August on the new federal courthouse at 921 Ohio St., said David Wilkinson, spokesman for U.S. General Services Administration.

Federal offices are scheduled to occupy the new, single-story, 14,000-square-foot building in the summer of 2009, Wilkinson said.

The building site is a 1.9-acre vacant lot east of St. Benedict’s Catholic Church. The lot formerly housed Bunch Nurseries. * * *

The building, which will face Ohio Street, will house the U.S. Southern District Court and bankruptcy court and clerk offices for both courts, as well as offices for U.S. Probation, U.S. Marshal’s Service and U.S. Attorney.

“A big difference is the fact this building will comply with and provide new security standards for federal court operations,” Wilkinson said. “Since Oklahoma City, one of the things that have been emphasized in new courthouse construction, even leased, is a separate circulation system for the public, judges and defendants in criminal cases that they don’t travel the same hallways or elevators. That is an additional expense that courthouses 50 years ago didn’t have to worry about.”

Indiana State University is slated to take over the existing federal building at Seventh and Cherry streets for the university’s College of Business. That building was deemed unsuitable by the federal government after September 2001, when new security guidelines and setback requirements were enacted.

Posted by Marcia Oddi on June 3, 2008 08:52 AM
Posted to Indiana Courts

Ind. Gov't. - More on "Costas falls to Zoeller in AG bid"

There are a number of stories today on Greg Zoeller's victory over the Governor's candidate, Jon Costas, at the Republican state convention yesterday.

Niki Kelly reports in the Fort Wayne Journal Gazette:

Republican attorney general nominee Greg Zoeller stunned many party insiders Monday with a strong win against Gov. Mitch Daniels’ favored candidate, Jon Costas, at the Indiana Republican State Convention.

Zoeller – chief deputy to outgoing Attorney General Steve Carter for the past 7 1/2 years – took 60 percent of the vote, 1,061 to 707. * * *

But the real news of the GOP convention was Zoeller’s spirited campaign against Costas, who is mayor of Valparaiso.

Zoeller, 53, will face Indianapolis attorney Linda Pence in what is expected to be a tight contest in the fall.

“I’m still learning a little about being a politician. A politician promises,” Zoeller said in his victory speech. “I promise to do my best to represent the very best of our Republican Party and I accept your nomination.” * * *

Costas, 50, declined to speak to reporters after the vote was announced.

But Daniels said Zoeller earned the nomination and “the best side won.” He noted that he endorsed Costas only to be inclusive of northwest Indiana, which is often considered presumptive Democratic territory.

Some quotes from a story by Patrick Guinane in the NWI Times:

The governor's endorsement and a perceived geographic edge weren't enough Monday for Valparaiso Mayor Jon Costas, who was soundly defeated by Greg Zoeller in the Republican race for state attorney general.

Zoeller, the chief deputy to outgoing Attorney General Steve Carter, captured 1,061 delegate votes at the Republican State Convention to 707 for Costas, who still has three years remaining on the second mayoral term he won last year.

"That's an excellent consolation," Costas said. "I'm looking forward to getting refocused back on city matters."

Carter announced he would not seek a third term in late March, setting off a sprint between Costas and Zoeller, a New Albany native who joined Carter's political team after losing the 1996 nomination for attorney general.

Costas and Porter County Republican Chairman Chuck Williams said Zoeller's long-standing relationships with state GOP delegates and his hard work campaigning paid off in the truncated contest. Williams said he was exasperated to learn that 51 of 81 delegate votes from Lake County went against Costas. * * *

"I"m thankful for the governor's support, but the delegates are very thoughtful people. And they're independent thinkers, and that's the way it should be," Costas said. "As really a complete unknown statewide, I never would have had the opportunity (to run) had the governor not supported me."

Daniels said he took a side in the race as a continuation of his attempts to end Northwest Indiana's perceived isolation from the rest of the state. He said he fears if his party doesn't fare well in the region this November, "Republicans probably will write it off for good, and Democrats will take it for granted, as they always have."

Carter said Zoeller fared well among Lake County delegates because "people want public corruption pursued. He's committed to doing that."

Indiana Secretary of State Todd Rokita, a Munster native, said he endorsed Costas out of disappointment with the legal assistance his office has received from Carter's office.

"I'm hopeful that Mr. Zoeller will take that to heart and make sure that we get the attorneys and the kind of service that we need," he said.

The candidates parted on less acrimonious terms Monday. Costas exited the convention center as Zoeller's win was being announced but not before delivering some good news.

"Jon came up and told me the vote totals, so that was the first person I heard (that I won) from," Zoeller said. "He's proven himself the fine gentlemen that everyone told me he was."

Posted by Marcia Oddi on June 3, 2008 08:41 AM
Posted to Indiana Government

Monday, June 02, 2008

Ind. Gov't. - "Costas falls to Zoeller in AG bid"

From the NWI Times:

Deputy Attorney General Greg Zoeller defeated Valparaiso Mayor Jon Costas to win the Republican nomination for Indiana attorney general Monday.

Costas fell to Zoeller, 707 delegate votes to 1,061.

Indiana GOP delegates cast secret ballots at the state party's convention in Indianapolis, the results of which were made available just before 4 p.m. Costas' loss comes despite endorsements from top Hoosier Republican leaders, including Gov. Mitch Daniels.

Zoeller, a New Albany, Ind., native, has served as sitting Attorney General Steve Carter's assistant since 2001.

The race for attorney general began shortly after Carter's surprise Easter Sunday decision to forgo a bid for a third term.

From the Indy Star, in a lengthy story by Mary Beth Schneider:

Indiana Republicans picked Greg Zoeller, the current chief deputy attorney general, to be their nominee for attorney general.

Zoeller, 53, defeated Jon Costas, a 50-year-old who in November had just won his second term as mayor of Valparaiso. Zoeller won 1,061 votes from the Republicans who gathered at their state convention at the Indiana Convention Center today. Costas won 707 votes.

The delegates, in picking Zoeller, rejected the pick of Gov. Mitch Daniels, who had endorsed Costas saying his northwestern Indiana home gave geographic balance to the Republican ticket. Daniels is from Indianapolis, while Lt. Gov. Becky Skillman and the man nominated today to be superintendent of public instruction, Greater Clark County schools superintendent Tony Bennett, are both from southern Indiana.

Outgoing Attorney General Steve Carter, who recently decided against seeking a fourth term, had endorsed Zoeller.

The candidates did not get to address the convention directly before the vote was taken by the delegates. Instead, each showed a video, with Costas sitting in front of a burning fireplace with his guitar in the background and his words drowned out by supporters chanting his name.

Zoeller's video in part included his relative golfer Fuzzy Zoeller, who joked that Zoeller is a bad golfer, but a good attorney.

Posted by Marcia Oddi on June 2, 2008 05:15 PM
Posted to Indiana Government

Law - "Gossip blogs bedevil law firms"

Leigh Jones of the National Law Journal has a long article today that begins:

Many of the nation's most renowned law firms have felt the public relations wallop delivered by law gossip blogs, those online tabloids that can turn an interoffice memo into a virtual billboard of bad news for partners or associates.

Whether the topic is layoffs or love affairs, it seems that no subject is too edgy for sites such as Above the Law, Greedy Associates, AutoAdmit and a few others that dig up the legal profession's dirt.

The immediacy — and, at times, the brutality — of the media form is presenting a challenge for firms that are wary of their private matters entering the public domain.

"We're sensitive to the issue that things can very easily end up in cyberspace," said Mairi Luce, a partner at Duane Morris who also handles associate training and development.

Duane Morris "monitors" the blogs, Luce said, "to see what's out there in terms of gossip."

At bonus time last year, Duane Morris sat back and watched while some law firms sent e-mail to associates announcing their bonus amounts, which then were posted on Above The Law and elsewhere.

The postings prompted Duane Morris associates to press management for the details about their own pending bonuses, Luce said, which the firm subsequently disclosed in one-on-one meetings.

Although private meetings do not prevent anyone from revealing the content of a conversation to a gossip blog, they make it more difficult for the information to make the rounds without the glaring reality of a document.

"We're a little bit more cautious and slower to put information out there," she said.

And here is what one of the "gossip blogs," Above the Law, writes about the article.

Posted by Marcia Oddi on June 2, 2008 04:41 PM
Posted to General Law Related

Ind. Gov't. - Republicans nominate ? for attorney general

No word yet, but Patrick Guinane of the NWI Times has just posted a story headed "GOP argues geography versus experience in AG contest." Some quotes:

INDIANAPOLIS | It was no surprise when state Rep. Eric Turner, R-Marion, introduced Valparaiso Mayor Jon Costas to party faithful as a proven vote getter from "a place where Republicans are outnumbered."

After all, Gov. Mitch Daniels and other GOP leaders have billed Costas as the attorney general candidate who could bring geographic balance to the fall election slate.

But Marion County Prosecutor Carl Brizzi turned that argument on its head when it came time to introduce Costas' competitor, Deputy Attorney General Greg Zoeller.

"Who in this room believes experience doesn't matter," Brizzi asked the more than 1,900 state party delegates gathered at the Indiana Convention Center. "Who in this room believes that where you're born is more important than experience?"

Zoeller has served as top lieutenant to Indiana Attorney General Steve Carter since 2001. Costas, who was elected to a second term last year, is a part-time attorney specializing in elder law.

Posted by Marcia Oddi on June 2, 2008 04:00 PM
Posted to Indiana Government

Ind. Courts - "Former South Bend lawyer released from federal prison"

An item posted on the South Bend Tribune web site:

SOUTH BEND -- A once-prominent Michiana lawyer is out of federal prison after serving a four-year sentence.

Paul Kusbach pleaded guilty in 2003 for defrauding a dozen people out of about $1.2 million. In addition to his prison sentence, he was also ordered to pay the money back.

Kusbach is now 70 years old.

Posted by Marcia Oddi on June 2, 2008 03:51 PM
Posted to Indiana Courts

Ind. Decisions - U.S. Supreme Court rules on Lake County definition of "money laundering" case

The ILB has had a long list of entries on the 7th Circuit decision in the case of United States v. Santos, the most recent being this one from Oct. 5, 2007, re the oral arguments before the SCOTUS.

Today the Supreme Court has issued a decision in the case, access it here. The AP has an early story on the decision headlined "Justices rule for defendants on money laundering." A quote:

In a 5-4 ruling, Justice Antonin Scalia said that money laundering refers to profits of an illegal operation, not gross receipts. The court's interpretation is a narrow one opposed by law enforcement agencies.

Scalia said the narrow definition will not unduly burden authorities, who must show only that a single instance of unlawful activity was profitable.

SCOTUS Blog has a useful commentary on the opinion, headed "The Santos Resolution (?)."

[More] Santos was one of two money laundering cases decided today by the SCOTUS, per this story on Bloomberg.com headed "Money Laundering Law Narrowed in U.S. Supreme Court Rulings."

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

Ind. Gov't. - More on: Race for Republican nomination for Attorney General ends today

Updating our report from earlier this morning, Patrick Guinane of the NWI Times has a comprehensive story this morning on the state Republican Convention, focusing on the AG race. Some quotes:

Costas, a part-time attorney specializing in elder law, courted delegates by e-mailing a nearly 12-minute video introducing himself as a triathlon competitor, evangelical Christian and experienced politician. Zoeller stuck to traditional campaign tactics.

"Our strategy has been very simple all along, and that's for Greg to meet one-on-one with as many of the delegates as possible," Zoeller campaign manager Jim Banks said Friday. "He's close to the point where he's personally met with every single delegate."

Zoeller, a New Albany native and former aide to Vice President Dan Quayle, won Carter's endorsement and the support of several downstate Republicans. But Gov. Mitch Daniels and other Costas backers insist on adding a northern Indiana name to a fall GOP lineup that will feature southern Indiana candidates for lieutenant governor and state schools chief. * * *

Lake County Republican Chairman John Curley is one of the more than two dozen county chairmen to endorse Costas. But Curley hasn't demanded the county's 87 delegates follow suit in a contest he said still looked too close to call Friday.

"I don't want a floor fight between the Lake County delegates," Curley said. "I've told them all, 'I've endorsed Costas, you go behind the curtain and do what your conscience tells you to do.' "

The State Republican Convention begins at 12:30 p.m. today at the Indiana Convention Center in Indianapolis. Check nwi.com today for updates from the convention floor.

The main event, scheduled to begin about 2:30 p.m. is the attorney general showdown between Valparaiso Mayor Jon Costas and Greg Zoeller, the chief deputy to Attorney General Steve Carter.

Who decides? There are 2,086 delegates to the state GOP convention (about 1,950 had RSVP'd for the convention as of Friday). They will cast secret ballots for attorney general. The winner needs only a simple majority, so unless there's a tie, there will be just one vote.

Posted by Marcia Oddi on June 2, 2008 09:15 AM
Posted to Indiana Government

Environment - Gary Post-Tribune examines IDEM calls to BP

Gitte Laasby of the Gary Post-Tribune reports today under the headline: "IDEM, BP in cahoots on public hearing? Phone calls reveal clues." The story begins:

A public relations official at the Indiana Department of Environmental Management called a BP official seven times leading up to a public hearing that was heavily attended by proponents of the refinery modernization.

Sandra Flum, director of community relations, also made three calls to the Northwest Indiana Forum, a private business advocacy group.

The phones calls, obtained by the Post-Tribune through public records requests, suggest IDEM might have worked with BP and economic development groups to stack the public hearing in favor of BP's controversial expansion, environmentalists say.

"I don't know that it's inappropriate" to make that number of calls, said Tom Anderson, executive director of Save the Dunes Council, "but the appearance is, the agency is working with the polluter and the (Northwest Indiana) Forum to make it look like there was a lot more support than there is support for this project and the increased pollution."

Anderson said the unusually large attendance at a March 14 hearing in Hammond, when more than 1,000 people showed up mostly in support of the permit, seemed to be a deliberate attempt to orchestrate the hearing and indicate there was more support for the permit than was actually the case.

A sidebar to the story details the Post-Tribune's efforts to access cell phone records:

The Post-Tribune requested itemized cell phone bills for IDEM Assistant Commissioner of the Office of Air Quality Dan Murray for a month around the time of the hearing. Murray made a presentation about BP's air permit before the hearing, which critics said sounded more like a public relations speech for BP. * * *

The Post-Tribune has filed an official complaint with the Public Access Counselor to gain access to the records.

Posted by Marcia Oddi on June 2, 2008 09:03 AM
Posted to Environment

Ind. Courts - More on "Intricate political web unravels at Cantrell trial"

Supplementing this ILB entry from Saturday, Andy Grimm of the Gary Post-Tribune has a long background story this morning on Robert Cantrell. Just a few quotes:

Monday, the trial of Lake County power broker Robert Cantrell enters its second week in U.S. District Court, with the longtime political operative facing charges of honest services fraud and insurance fraud and tax evasion.The Post-Tribune offers a primer. Who is Robert J. Cantrell and why should I care? * * *

Now a close adviser to East Chicago Mayor George Pabey and County Clerk (and soon-to-be Coroner) Tom Philpot -- Cantrell had once been close with Pabey's hated rival Robert Pastrick and Philpot's nemesis, Sheriff Roy Dominguez.

His daughter, Julie, just won re-election as a Lake County judge, and his son, John, was once law partners with Hammond Mayor Tom McDermott Jr. He also had close ties to former North Township Trustee Greg Cvitkovich, who was convicted on corruption charges. * * *

The trial is scheduled to continue another two weeks, with the prosecution expected to put a long list of Lake County politicians on the stand.

If convicted, Cantrell could face prison time and would have to pay restitution to the IRS and possibly others.

But, upon release, he would probably have no trouble finding a job in Lake County.

Julie Cantrell, who handily won re-election this spring, is well-liked even by some of the many local pols who despise her father, and would appear to face no repercussions.

Her younger brother, John, had an immunity agreement with prosecutors, but some who watched his testimony wonder if the state Bar Association would have to consider disciplinary action based on his AFC income and fraudulent insurance coverage.

Posted by Marcia Oddi on June 2, 2008 08:55 AM
Posted to Indiana Courts

Environment - "Possible regulation of CAFOs in Delaware County"

Seth Slabaugh reports today for the Muncie Star-Press in a story that begins:

MUNCIE -- For the third consecutive year, the city-county planning commission is debating whether or not to regulate concentrated animal feeding operations (CAFOs).

The stakes remain high, as do emotions.

A committee is scheduled to report its recommendations on a zoning-ordinance amendment to the commission at 6:30 p.m. Thursday in Heartland Hall at the Delaware County Fairgrounds.

"This is an important meeting that affects everyone in Delaware County who lives outside of Muncie," said CAFO critic Julie Alexander. "Right now, you can have a CAFO 200 feet from your door. Most people wouldn't want industry 200 feet from their front door."

The recommendations seek to protect both the right to farm and the rights of homeowners who oppose CAFOs in their backyards because of air and water pollution from manure lagoons, pits and land application.

Posted by Marcia Oddi on June 2, 2008 08:47 AM
Posted to Environment

Ind. Law - "Local crime scene investigators debunk some myths about their work"

A story today in the Evansville Courier & Press reminds us that police work is not like CSI. Gavin Lesnick reports that the show often heightens expectations. Take fingerprints:

[Tony Walker, a 16-year veteran of the Evansville Police Department's crime scene unit] finds himself at trials all the time, he said, explaining why there are no fingerprints from one crime or another.

People seem to expect they can be lifted from any scene, but a wide range of factors affect the process: the moisture or lack of moisture on a hand, the texture of the surface, the frequency it's been touched (doorknobs pose problems) and the movement of the hand all can render prints unuseable.

"There are just so many variables," said Bill Schafer, another member of the unit.

Cars are particularly problematic. Finding a good print on a steering wheel is a "one-in-a-million" shot, Walker said, and taking them off other interior surfaces is possible but expensive and damaging.

The exteriors actually hold prints well, but such evidence won't stand up in court.

"The defense attorney will say maybe he touched the car," Schafer said. "But that doesn't mean he stole it."

Once back from a scene, the local crime scene unit does input their fingerprint data into a computer, like on "CSI," but it's not quite the same.

Unlike in "CSI," in which the Automated Fingerprint Identification System often turns up a single, definitive match, the real system is rarely, if ever, so specific. It will match up prints with several potential suspects or other investigations and return a list of possible cases. Eight-hundred people have been matched through the system since it was purchased five years ago.

But the computer is just the first step.

From there, the crime scene investigator must compare the prints by hand — painstakingly measuring and analyzing them before determining if there really is a match.

There's no room for error. In court, the first question lawyers often ask is if they have ever made a false identification.

Posted by Marcia Oddi on June 2, 2008 08:37 AM
Posted to Indiana Law

Ind. Gov't. - "Web sites ease access to Kentucky, Indiana services"

Lesley Stedman Weidenbener of the Louisville Courier Journal writes today on state government websites in Kentucky and Indiana. The story begins:

Taxpayers don't always have to drive to their state capitols -- or even to local license branches or government offices -- to keep up with state business anymore.

More and more state services, meetings and documents are available online, giving Kentuckians and Hoosiers access to information without filling up their tanks with $4-a-gallon gasoline.

On the same day last month in Indiana, Clark County residents could watch the state Supreme Court's arguments in the David Camm murder case and a tax control board's consideration of $4.2 million in bonds to renovate a local government building.

Both were Webcast live, which means viewers needed only a computer and a fast Internet connection.

But states aren't just using the Web to broadcast meetings. Taxpayers can file business forms online, buy hunting and fishing licenses, check campaign finance records and book nights at state park lodges.

"States have made remarkable progress putting services online," said Darrell West, director of Brown University's Traubman Center for Public Policy that tracks e-government programs. "People like the convenience of being able to order services electronically as opposed to personally visiting a government office."

In a study released last year, the Traubman Center ranked Kentucky's state government site as fourth best in the country and Indiana's as 16th best, based on services available to taxpayers and privacy protection.

"A great way to use technology is to give people power over information," West said. "Live streaming is becoming more common. Podcasts are big. Agencies are starting to put audio feeds of hearings and official proceedings online and that's a good way to bring government home to people."

Residents can use their computers to watch the legislatures in Kentucky -- through Kentucky Educational Television -- and Indiana. Kentucky Gov. Steve Beshear and Indiana Gov. Mitch Daniels make audio and video files available on their respective Web sites. And courts in both states offer live streams of some oral arguments.

David Remondini, a spokesman for the Indiana Supreme Court, said the justices are "very interested in removing a lot of the mystery from how the courts operate."

"The best way is to let people see how appellate courts work on a regular basis," he said. "And so we made the commitment to install the equipment and arrange for staff to Webcast it with the eye toward educating the public."

Last month, more than 19,200 people viewed the Indiana Supreme Court's oral arguments page. About 25 percent of those views came the day of the Camm case appeal.

"If we had to pick an average number for a so-called typical oral argument, it would be 15," Remondini said. "But now there are times when hundreds of people are watching, either through hundreds of computers or one computer that is broadcasting in an auditorium."

One aspect not touched on is the preservation or archiving of records of public hearings, such as sessions of the Indiana General Assembly. The Indiana House and Senate are not creating public archives of the past sessions of the General Assembly for which video was compiled.

Posted by Marcia Oddi on June 2, 2008 08:23 AM
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

None scheduled.

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

None scheduled.

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

This Tuesday, June 3rd:

1:00 PM - Indiana Bureau of Motor Vehicles vs. Brent D. Orange - Brent Orange's ("Orange") commercial driver's license ("CDL") was administratively disqualified when he was convicted of operating a noncommercial vehicle while intoxicated. Indiana law provides that probationary driving privileges do not apply to a person holding a CDL. The issue before us is whether the trial court abused its discretion when it denied the Bureau of Motor Vehicle's ("BMV") motion to correct error and held that Orange was eligible for probationary driving privileges under his operator driver's license ("ODL"). The Scheduled Panel Members are: Judges Kirsch, Bailey and Crone. [Where: Indiana Court of Appeals Courtroom.]

Posted by Marcia Oddi on June 2, 2008 08:16 AM
Posted to Upcoming Oral Arguments

Ind. Gov't. Race for Republican nomination for Attorney General ends today

The race between outgoing AG Steve Carter's chief deputy, Greg Zoeller, and Valparaiso Major Jon Costas will end today with one of them being selected the Republican nominee at the state Republican Convention. Carter supports Zoeller, Gov. Mitch Daniels supports Costas.

Russ Pulliam has a column in the Saturday Indianapolis Star giving a good picture of each candidate and his supporters.

John Byrnes of the Gary Post-Tribune writes today about "The struggle for the soul of Lake County Republicans." Some quotes:

Zoeller has not conceded Costas' home turf, making repeated trips to Northwest Indiana in recent weeks to meet with delegates face-to-face.

"I just met with Greg Zoeller the other day," said Porter County Republican Chairman Chuck Williams, a staunch Costas supporter. "He certainly has been around."

Zoeller has the support of outgoing Attorney General Steve Carter, who hails from the area.

Carter earned the respect of many locals for his vote fraud investigation in Lake County and his civil racketeering lawsuit against former East Chicago Mayor Robert Pastrick and associates.

Zoeller, Carter's chief deputy, has touted his experience in those investigations and promised to actively pursue them.

Costas' connection to the law firm Burke Costanza & Cuppy LLP, where he is an "of counsel" attorney, has privately left some local Republicans with reservations.

The firm worked extensively for the city of East Chicago during Pastrick's administration, and Burke attorneys defended two men named along with Pastrick in the civil racketeering case.

Interviewed earlier this month, Costas said he is not familiar enough with the RICO case to say how he might proceed with it, if elected.

Costas' fuzziness on the details of the Pastrick prosecution gave Zoeller pause.

"Frankly, I wouldn't think it would become too hard to get familiar with the case if it's in your firm. I would be willing to provide him with (a copy)," Zoeller said recently.

But Williams said Costas' lifetime in Lake County has steeled him to fight corruption.

"He grew up in Gary, and moved away from there," Williams said. "He knows firsthand about bad government and good government, and he's ready to step in and do what needs to be done to combat government fraud."

John Gramlich, of the national Stateline.org ("Where policy and politics news click") wrote Friday under the headline "Indiana AG race mirrors Obama-Clinton." A quote from the long article:

Ahead of the convention, meanwhile, the candidates are trying to make an impression on every last delegate in an effort to sway them one way or the other.

Zoeller, currently a deputy to Carter, has vowed to campaign in key parts of the state “until every one of the delegates has met or talked to me,” according to news accounts. He told Stateline.org he has enlisted campaign help from his famous cousin, professional golfer Fuzzy Zoeller, who is a Democrat but nevertheless will “do a testimonial (at the convention) about what a good guy I am.”

Costas, mayor of the northern Indiana city of Valparaiso, has argued that his popularity in what is traditionally a Democratic part of the state would boost the Republican ticket — headed by Daniels’ re-election bid — in November. He has racked up the support of elected Republicans in the state, including most of the GOP leaders in the General Assembly. Daniels himself has said he is backing Costas because the candidate would contribute geographic diversity to the party’s ticket in the fall.

The Republicans’ race has been compounded not only by the state’s unusual election rules, but by an unexpected March 23 announcement by Carter that he would not seek re-election. The decision threw a curveball into the nominating process, as a seat that party leaders expected Carter to retain without much trouble suddenly opened and became the focus of intra-party jostling — much to the glee of state Democrats.

While the contest between Costas and Zoeller has not turned negative, it has taken on a sense of urgency that is unusual: the shortened campaign condensed a meet-and-greet process between candidates and convention delegates from a more than a year in most election cycles into about two months this year.

“The chaos and turmoil that the Republican party is going through isn’t going to help them. It reflects poorly on their effort to create a statewide campaign,” said Thomas Cook, a spokesman with the Indiana Democratic Party. Cook said Democrats are united behind [likely Democratic nominee Linda L. Pence], who has been able to raise funds and make connections “while the Republicans deal with their in-house troubles.”

Posted by Marcia Oddi on June 2, 2008 06:59 AM
Posted to Indiana Government

Sunday, June 01, 2008

Environment - "Administration Moves to Avert a Rules Rush"

Charlie Savage and Robert Pear have an important, lengthy, front-page story in Saturday's NY Times, headlined "Administration Moves to Avert a Rules Rush." It begins:

The Bush administration has told federal agencies that they have until June 1 to propose any new regulations, a move intended to avoid the rush of rules issued by previous administrations on their way out the door.

The White House has also declared that it will generally not allow agencies to issue any final regulations after Nov. 1, nearly three months before President Bush relinquishes power.

While the White House called the deadlines “simply good government,” some legal specialists said the policy would ensure that rules the administration wanted to be part of Mr. Bush’s legacy would be less subject to being overturned by his successor. Moreover, they said, the deadlines could allow the administration to avoid thorny proposals that are likely to come up in the next few months, including environmental and safety rules that have been in the regulatory pipeline for years.

Many regulations do not take effect until 60 days after they have been issued, and a new president can try to postpone or revise them. After Mr. Bush took office in 2001, for example, he froze hundreds of pending regulations issued by the administration of Bill Clinton.

Mr. Clinton, in turn, had imposed a similar moratorium on last-minute regulations issued by the first President Bush.

Many officials in government agencies said they were caught unaware by the White House’s order, issued May 9.

Some officials described a flurry of activity as they sought to get proposals approved for publication in the Federal Register by June 1.

A graphic accompanying the story, titled "Regulations in the Pipeline," lists "a few potenital new regulations under consideration" and how they would be impacted by the June 1 deadline. Those which will be published in the Federal Register by June 1, according to the graphic, include: Allow Montaintop Mining and Allow Loaded Handguns in National Parks. Those which would miss the cut-off include: Limit Greenhouse Gas Emissions as the Supreme Court Ordered EPA to Consider in 2007.

On Another Note. Some readers may note from the byline that Fort Wayne native Charlie Savage, formerly of the Boston Globe, is now writing for the NY Times. The New York Observer reported May 8th:

A day after the Times announced that there will be layoffs--perhaps around 15--the paper has picked up a star: Charlie Savage, a Pulitzer-winner on his coverage of Bush-Cheney White House, is moving to Dean Baquet's Washington bureau.

Posted by Marcia Oddi on June 1, 2008 12:17 PM
Posted to Environment

Courts - Arkansas Supreme Court rated highly in a U of Chicago study

Thanks to Howard Bashman of How Appealing, here is a report from Saturday's Arkansas Democrat Gazette. Some quotes:

The Arkansas Supreme Court was rated highly in a study made public this month in a University of Chicago Law School working paper series based on opinions written by members of state high courts in 1998-2000.

The study, titled “Which States Have the Best (and Worst ) High Courts ?” ranked Arkansas’ court as second to California in one combination of factors it weighed as a means of evaluating the state courts.

“California comes out at the top, as it has in other academic studies,” said the study. “More surprisingly, Arkansas comes in second.” Arkansas was cited as one of the “top contenders” for best court in the nation.

The study looked at the number of opinions the justices wrote, the number of times their opinions were cited in the rulings by judges in other states, and the independence of the judges to differ with their colleagues.

Here is a link to the 51-page study. According to the abstract:

This paper ranks the high courts of the fifty states, based on their performance during the years 1998-2000, along three dimensions: opinion quality (or influence as measured by out-of-state citations), independence (or non-partisanship), and productivity (opinions written). We also discuss ways of aggregating these measures. California and Delaware had the most influential courts; Georgia and Mississippi had the most productive courts; and Rhode Island and New York had the most independent courts. If equal weight is given to each measure, then the top five states were: California, Arkansas, North Dakota, Montana, and Ohio. We compare our approach and results with those of other scholars and the U.S. Chamber of Commerce, whose influential rankings are based on surveys of lawyers at big corporations.

See particularly pp. 21-23, re composite measures with identical weightings for each factor. Under this ranking, California is #1, Arkansas #2, and Indiana appears to be in the lower third. But there are plenty of other tables. See the study's conclusions on page 32.

Posted by Marcia Oddi on June 1, 2008 12:00 PM
Posted to Courts in general

Ind. Courts - Protection orders in Lake and Porter Counties

Marisa Kwiatkowski of the NWI Times has a story today headed "Protection orders rise in Lake, but drop in Porter County" and another headed "Victims lean on protection orders to break cycle of abuse." A quote from the latter story:

Crown Point Police Chief Pete Land said protection orders today are carried out much more "vigorously" than they were eight to 10 years ago.

"The domestic issue is taken much more seriously by police departments, the prosecutor's office and the courts," he said.

He encouraged victims who have protection orders to contact their local police department every time an order is violated.

For more about protection orders, see this page from the Indiana Courts website, titled "Indiana Court Forms: Protection Orders, No Contact Orders, and Workplace Violence Restraining Orders,"

Posted by Marcia Oddi on June 1, 2008 09:04 AM
Posted to Indiana Courts

Environment - "Flares at heart of BP air permit appeal"

Gitte Laasby of the Gary Post-Tribune has another story today on the BP air permit controversy. Her report begins:

WHITING -- Flares stand at the heart of the appeal of BP's air permit.

You can't miss them. They're those tall Roman-candle like structures that dot refineries and other industrial complexes. But the purpose of flares is the opposite of fireworks. They exist to relieve pressure and gases from start-ups, shut-downs and any other blip in the refining system.

A pilot light on the flare burns off any chemicals dangerous to humans. But the process also creates CO2 and other pollutants and emissions that environmental groups say BP and the Indiana Department of Environmental Management have not properly accounted for.

BP insists it's accounted for what it can account for.

And the whole process of building the largest capital improvement project in the history of Indiana rests on the disagreement over these flares.

Environmentalists say BP and IDEM left out emissions from existing flares and only counted emissions from purge gases and pilot lights, where a small amount of gas is continuously burned to keep the flare system functional. The no-flaring assumption seems to fly in the face of data showing that flares are a large source of oil refinery emissions, environmentalists said.

At refineries in California, emissions of sulfur oxides during startups, shutdowns or emergencies were as high as 70,000 pounds in a day and 3,000 tons in a year, according to a coalition of environmentalists. BP estimated flare emissions would be 0.4 tons per year -- one hundredth of what's allowed without installing best-available pollution control equipment or offsetting emissions.

"I flatly refuse to believe they're building these three new flares with the intention of never using them," said Ann Alexander, senior attorney with the Natural Resources Defense Council, which has taken the lead in the appeal on behalf of environmental groups.

"What we want the Office of Environmental Adjudication to do is tell IDEM you need to include all these emissions in your calculations. We think once you do that, they'd conclude this is a major source, not a minor source permit. It would require the facility to install best-available control technology or achieve lowest achievable emission rates, which would require new permit terms."

Posted by Marcia Oddi on June 1, 2008 08:55 AM
Posted to Environment

Saturday, May 31, 2008

Ind. Courts - "Conviction overturned in minor-drinking case"

The Fort Wayne Journal Gazette has a brief report today on Thursday's COA NFP decision in the case of Hostetler v. State:

The Indiana Court of Appeals on Friday overturned the conviction of a LaGrange County man who threw a party in July 2006 and was later convicted of contributing to the delinquency of a minor.

Marlin Hostetler – then 25 – had a party at his home, where he lived with his parents and siblings, when his parents were out of town. About 50 to 200 people eventually came to the party, some of them underage.

Hostetler and others drank alcohol at the party while some drank Pepsi and Red Bull.

The next morning, police arrived to find about 20 vehicles in the driveway and about 50 people sleeping inside the vehicles. One of them was an underage girl who tested positive for alcohol.

Prosecutors charged Hostetler for contributing to the delinquency of a minor. He was convicted at a bench trial and received a 60-day suspended jail sentence.

The appellate court said the evidence did not show that Hostetler encouraged the girl to drink and that he hadn’t even invited her to the party. Also, she obtained alcohol directly from her boyfriend, who brought his own alcohol and stored it in his truck. The court ordered the conviction be vacated.

See also "Ex-Colts QB Trudeau, wife to pay $5,000 fine in teen party case."

Posted by Marcia Oddi on May 31, 2008 01:24 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Key Hoosier Lottery case up for oral argument" before the 7th Circuit

The ILB has had a number of entries on various aspects of Indiana's quasi-public agencies. For instance, this Sept. 1, 2004 entry headed "Another indictment of an Indiana quasi-public entity" referenced the Intelenet Commission, PERF, the Indiana Economic Development Commission (IEDC), and the BMV Commission.

Other quasi-publics mentioned in ILB entries include include the state Lottery Commission, the State Office Building Commission and the Toll Road Commission.

This ILB entry from August 30, 2004, quoting from a story by Michele McNeil Solida, then of the Indianapolis Star, details the woes that can befall a quasi-public state agency:

Scales' conduct at the academy highlights significant problems with checks and balances at Indiana's Intelenet Commission, which oversaw Scales and the work going on at the academy.

The Intelenet Commission was created by the General Assembly in 1986 to start and operate a statewide telecommunications network for public agencies and libraries. It doesn't fall under many of the controls of state government because it's a quasi-public agency. It has its own personnel rules. It handles its own bills and check-writing instead of using the state auditor's office.

Nobody in the governor's office directly controls Intelenet, although the governor hires the executive director and appoints five of the 16 members of the commission's board. The commission, like the state's other quasi-public agencies, operates free from many government rules, so it can get things done much faster. And the commission, which managed $49 million last year, didn't have many of its own controls in place.

There was no policy for criminal background checks, no policy to regulate what expenses employees could get reimbursed and little training in government ethics. The policy on tuition reimbursement wasn't enforced.

Can an Indiana quisi-public agency maintain its exemption from state law requirements while at the same time asserting that it is immune from federal rules because it is a state agency? Ed Feigenbaum looks at that question in the June 2nd issue of Indiana Gaming Insight ($$$ only), under the heading "Key Hoosier Lottery case up for oral argument":

Oral argument is slated before a panel of the U.S. Court of Appeals for the Seventh Circuit on Friday, June 6 in Burrus v. State Lottery Comm’n of Indiana, No. 08-1142.

This is the case we have been telling you about which involved eight African-American former Hoosier Lottery employees sueing the Lottery under §1981 and Title VII for race discrimination, claiming that they were all terminated between January and August 2005 because of their race, which the Lottery denies. Six of the workers who filed the lawsuit had been employed by the Lottery since its creation in 1989. The Lottery contended that it was immune from the claims in federal court because it is a state agency. Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana denied the Lottery’s jurisdictional motion, finding the Lottery was not a state agency entitled to 11th Amendment sovereign immunity. [Here is Judge Barker's opinion.]

This case is important not only on a macro basis because of its implications for the immunity of similar quasi-state entities, but also on a micro basis for the Lottery. Soon after the Jan. 7th Burrus ruling, in Shisler v. State Lottery Comm’n of Indiana, No. 1:07-cv-01190 (4/25/08), Judge Larry J. McKinney, also of the U.S. District Court for the Southern District of Indiana, denied the Hoosier Lottery’s Motion to Dismiss for Lack of Jurisdiction in the high-profile job discrimination claim filed against the Lottery by its former general counsel, Janna Shisler. As we told you, Judge McKinney relied heavily on Judge Barker’s analysis in the Burrus ruling to agree with her finding that the Lottery was an independent agency and, thus, not entitled to sovereign immunity. As he put it in the Shisler opinion, which drew liberally from Burrus, “The Court cannot disagree with Judge Barker’s analysis.”

Posted by Marcia Oddi on May 31, 2008 01:24 PM
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions | Indiana Government

Environment - "One new gasification proposal survives in the United States"

"Mounting Costs Slow the Push for Clean Coal" was the headline to a story yesterday on the front-page of the NY Times. Some quotes from thelengthy story:

WASHINGTON — For years, scientists have had a straightforward idea for taming global warming. They want to take the carbon dioxide that spews from coal-burning power plants and pump it back into the ground.

President Bush is for it, and indeed has spent years talking up the virtues of “clean coal.” All three candidates to succeed him favor the approach. So do many other members of Congress. Coal companies are for it. Many environmentalists favor it. Utility executives are practically begging for the technology.

But it has become clear in recent months that the nation’s effort to develop the technique is lagging badly.

In January, the government canceled its support for what was supposed to be a showcase project, a plant at a carefully chosen site in Illinois where there was coal, access to the power grid, and soil underfoot that backers said could hold the carbon dioxide for eons.

Perhaps worse, in the last few months, utility projects in Florida, West Virginia, Ohio, Minnesota and Washington State that would have made it easier to capture carbon dioxide have all been canceled or thrown into regulatory limbo.

Coal is abundant and cheap, assuring that it will continue to be used. But the failure to start building, testing, tweaking and perfecting carbon capture and storage means that developing the technology may come too late to make coal compatible with limiting global warming. * * *

Plans to combat global warming generally assume that continued use of coal for power plants is unavoidable for at least several decades. Therefore, starting as early as 2020, forecasters assume that carbon dioxide emitted by new power plants will have to be captured and stored underground, to cut down on the amount of global-warming gases in the atmosphere.

Yet, simple as the idea may sound, considerable research is still needed to be certain the technique would be safe, effective and affordable.

Scientists need to figure out which kinds of rock and soil formations are best at holding carbon dioxide. They need to be sure the gas will not bubble back to the surface. They need to find optimal designs for new power plants so as to cut costs. And some complex legal questions need to be resolved, such as who would be liable if such a project polluted the groundwater or caused other damage far from the power plant.

Major corporations sense the possibility of a profitable new business, and G.E. signed a partnership on Wednesday with Schlumberger, the oil field services company, to advance the technology of carbon capture and sequestration.

But only a handful of small projects survive, and the recent cancellations mean that most of this work has come to a halt, raising doubts that the technique can be ready any time in the next few decades. And without it, “we’re not going to have much of a chance for stabilizing the climate,” said John Thompson, who oversees work on the issue for the Clean Air Task Force, an environmental group.

The fear is that utilities, lacking proven chemical techniques for capturing carbon dioxide and proven methods for storing it underground by the billions of tons per year, will build the next generation of coal plants using existing technology. That would ensure that vast amounts of global warming gases would be pumped into the atmosphere for decades. * * *

Most worrisome to experts on global warming, the utilities have recently been canceling their commitments to a type of plant long seen as a helpful intermediate step toward cleaner coal.

In plants of this type, coal would be gasified and pollutants like mercury, sulfur and soot removed before burning. The plants would be highly efficient, and would therefore emit less carbon dioxide for a given volume of electricity produced, but they would not inject the carbon dioxide into the ground.

But the situation is not hopeless. One new gasification proposal survives in the United States, by Duke Energy for a plant in Edwardsport, Ind.

Posted by Marcia Oddi on May 31, 2008 12:17 PM
Posted to Environment

Ind. Courts - "Intricate political web unravels at Cantrell trial"

Although the ILB has had plenty of mentions of various members of the Cantrell family in Lake County, it has avoided the current federal trial of Robert Cantrell until now.

This story from May 16th by Joe Carlson of the NWI Times gives basic background:

HAMMOND | The trial of political insider Robert Cantrell is scheduled to begin with jury selection May 27. Cantrell appeared in federal court in Hammond Friday for his final pretrial conference. The trial is expected to last three and a half weeks and to include more than 30 witnesses.

One of the government's star witnesses is Hammond attorney John Cantrell, Robert Cantrell's son. Defense attorney Kevin Milner, who represents Robert Cantrell, called his client's son, "an important witness."

Robert Cantrell, 65, of Schererville, was charged in April 2007 with 11 counts of defrauding the public of honest services while working for a public entity. He is also accused of defrauding an insurance company by having a township contractor insure two of his adult children and failing to report kickbacks he received from the contractor for work he steered to them.

The allegations center around Cantrell's dealings with township contractor Nancy Fromm, who owned Hammond-based Addiction and Family Care and has publicly admitted to paying Cantrell a "referral fee" for township business.

This story from May 17th by Andy Grimm of the Gary Post-Tribune provides more detail:

CROWN POINT-- After multiple continuances, Lake County political insider Robert Cantrell appears set to stand trial on fraud and tax evasion charges later this month.

At a hearing Friday, U.S. District Court Judge Rudy Lozano set the trial to start May 27 -- more than a year after Cantrell was charged.

Prosecutors said they may call more than two dozen witnesses to prove Cantrell defrauded taxpayers when he received a six-figure payout from a family friend who ran a counseling service that had accounts with numerous Lake County agencies, including Cantrell's daughter, Lake County Judge Julie Cantrell.

His daughter, who won re-election handily in the May 6 primary, is likely not the only political name to be introduced during a lengthy trial. Though he has never held elected office, Cantrell is as influential as any of the political players indicted in the U.S. Attorney's Restore Public Integrity corruption probe.

The former head of the East Chicago's Republican Party, Cantrell has varied and shifting ties to numerous Lake County political figures, including East Chicago Mayor George Pabey and former Lake County Democratic Party Chairman Stephen Stiglich.

Over the years, Cantrell has found his name on the payrolls of many government entities, including the North Township Trustee's office, which hired family friend Nancy Fromm's Addiction and Family Care (AFC) to provide counseling services.

Prosecutors allege Cantrell accepted more than $270,000 from 2000 to 2003 from AFC for helping the company win contracts with government entities. They also say Cantrell committed fraud by not disclosing his ties to AFC to a trustee, and that some $150,000 of his AFC income was not reported to the IRS.

Witness lists have not been made public record, but in court Friday, defense attorney Kevin Milner asked prosecutors to provide evidence related to possible testimony by Cantrell's son, John, a Lake County attorney.

Asked if he had been subpoenaed to testify against his father, John Cantrell said Friday, "I would love to comment, but I can't."

Now jump to today's stories. Joe Carlson reports:

HAMMOND | In a classic courtroom betrayal by a crony-turned-government-witness, Nancy Fromm on Friday described political fixer Robert Cantrell at the height of greed and paranoia.

In 2003, with the feds on their trail and literally stacks of cash in the backroom office, Fromm said she and Cantrell would grab for themselves pocketfuls of the money that had been collected from addicts attending counseling.

"We didn't talk in the office. He would just point to the drawer, and I would give him the cash," Fromm said. "He thought (investigators) had put bugs in, and I did, too."

But why should anyone believe anything Fromm says? Defense attorney Kevin Milner got Fromm to admit in cross-examination she was a liar and a thief who often blamed others for her own misfortune.

Fromm also has great motive to lie, because she's an admitted felon who is hoping to avoid jail time by cooperating with federal prosecutors in the case against Cantrell.

Fromm, 67, is owner of Addiction and Family Care Inc., a counseling firm that paid Cantrell hundreds of thousands of dollars for using his political connections to "get business" for the firm between 1999 and 2005.

Primarily, the business consisted of court-ordered drug and alcohol therapy and anger management classes for criminal offenders who were sent to AFC by judges who were friends of Cantrell, Fromm said.

The firm also provided educational classes and counseling to public employees in North Township, which also was Cantrell's employer at the time -- between 2000 and 2005.

Cantrell admits receiving some money from AFC. But one key question for the jury will be whether Cantrell received any money that related directly to the North Township work because that would be an illegal conflict of interests. He denies it.

Fromm and Cantrell were once very tight because so much of her revenue depended on him -- revenue she was secretly skimming for herself.

She even lied to investigators to protect Cantrell, although she also was lying to him at the same time about her true income and whether she had shredded incriminating records.

On Friday, she said she decided to come clean.

She said Cantrell got business for her firm using political influence with Sheriff Rogelio "Roy" Dominguez; North Township Trustee Greg Cvitkovich; County Commissioners Rudy Clay and Gerry Scheub; Lake Superior Court Judges Nicholas Schiralli, Sheila Moss and Jesse Villalpando; East Chicago Judge Eduardo Fontanez; Lake Station Judge Kris Kantar; Schererville Town Judge Deb Riga; and Kevin Pastrick, son of East Chicago Mayor Robert Pastrick.

Cantrell received nearly half of the money from clients referred to her through contracts approved by all of those officials, Fromm said.

Andy Grimm's report today:

Jurors in the trial of political kingmaker Robert Cantrell on Friday got a crash course on how to win friends and influence government contracting Friday, the fourth day of the corruption trial of the legendary political fixer.

In her second day on the witness stand, prosecution witness Nancy Fromm laid out the web of political connections that were the lifeblood of her counseling service, with Cantrell brokering dozens of contracts for her Addiction & Family Care.

Cantrell's handwritten notes were quickly added to contracts with his close friends, North Township Trustee's office, the East Chicago City Court and City Hall. He negotiated fees and smoothed over political rifts, then kept nearly half the company's fees and split another $300,000 in off-the-books cash with Fromm over six years.

"The truth is, I never really looked at these (contracts)," Fromm told Assistant U.S. Attorney Orest Szewciw. "I signed them and trusted Mr. Cantrell to do the negotiating."

At Cantrell's advice, Fromm said, she burned some records and hid others from the FBI, and lied to State Police investigators to protect their booming business when a contract with indicted Schererville Town Judge Deborah Riga came under scrutiny. Initially, she tried to cover up for Cantrell when his full-time employer, North Township Trustee Greg Cvitkovich, was brought up on federal charges.

Fromm would eventually fail her political godfather, first by not taking his advice and destroying other incriminating records, and then by agreeing to testify against him after federal prosecutors charged her with obstruction of justice and tax fraud.

Thanks to the many off-the-books transactions and missing records, Fromm's statements are prosecutors' best evidence in the case against Cantrell, who faces an 11-count indictment alleging he violated state ethics laws by not disclosing the thousands he earned from AFC while he was also on the township payroll.

Defense attorney Kevin Milner painted Fromm as willing to lie not just to investigators, but to her business partner. Fromm, who faces as long as 13 years in prison, had no records to show if Cantrell received cash, and she admitted altering business records so that she would have to share less of her take with Cantrell.

Fromm testified that at Cantrell's request, she paid his son, John, for a no-show consulting job and falsified insurance forms to put John and Cantrell's daughter, Jennifer, on AFC's group insurance plan.

But, Milner pointed out, Cantrell also insisted he protect his daughter Julie, a Lake County judge, by not accepting any share of the nearly $600,000 AFC collected for counseling services for defendants in her court.

"Didn't you think it was odd he went to such lengths to protect his daughter Julie and hung his son John out to dry?" Milner asked.

The trial, scheduled to take as long as three weeks, will resume Monday with Fromm still on the stand.

See also the NWI Times Bob Cantrell Trial Blog.

Posted by Marcia Oddi on May 31, 2008 11:45 AM
Posted to Ind Fed D.Ct. Decisions

Friday, May 30, 2008

Law - More on: E-mails and the statutes of frauds

Updating this ILB entry from May 22nd, FindLaw has an article by law prof Anita Ramasastry titled "A New York Appellate Court Holds that an Email Message Can Amend an Employment Contract: Why the Decision Was Correct, and What It Means for Employees." It begins:

Last month, in the case of Stevens v. Publicis, a New York intermediate appellate court held that a series of emails was sufficient to modify an employment contract, because the emails (which included signature lines) counted as “signed writings,” provided details as to the contract modifications and clearly expressed both parties' unqualified acceptance of the modifications.

Businesses and/or employees can avoid the effect of the ruling by amending their original agreements to forbid email modification. But if they do not do so, they should be on notice that a few emails may result in major changes to a contract.

As the article notes:

The key issue arose under the New York Statute of Frauds, which requires the material terms of certain legally enforceable agreements to be memorialized in a writing signed by the parties to be charged (that is, the parties who will have to fulfill the responsibilities the agreement imposed).

Posted by Marcia Oddi on May 30, 2008 06:45 PM
Posted to General Law Related

Ind. Decisions - Transfer list for week ending May 30, 2008

Here is the Indiana Supreme Court's transfer list for the week ending May 30, 2008. Note that there are four pages. [Note: Link is fixed now.]

There were two transfers granted May 29th. They are summarized in this ILB entry from earlier today. However, they are not on today's (May 30th) transfer list.

The two cases on today's list, Pinnacle Properties and Bailey v. Mann, were granted transfer May 27th and May 22nd, respectively. The ILB entry on the Pinnacle COA opinion, dated 10/22/07, is here - 7th case. It deals with the collection of sewer bills,

The Feb. 20th 2-1 COA opinion in Bailey v. Mann (NFP) is here. It involves the trial court’s interpretation of language in the property settlement agreement incorporated into the dissolution order.

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 May 30, 2008 05:22 PM
Posted to Indiana Transfer Lists

Ind. Law - "City considers allowing golf carts on streets"

Our most recent entry on golf carts on city streets was dated May 16th.

Today Jenny Peter of the Vincennes Sun Commercial reports:

The Board of Works is looking into allowing residents to drive golf carts along many of the city's streets.

Police Chief Tom Grove presented to the board Tuesday afternoon a proposed ordinance that would govern the use of golf carts. Each cart would have to be inspected by the VPD and be issued a sticker of compliance that must be displayed on the cart. Drivers also would have to have a valid driver's license and liability insurance.

Golf carts wouldn't be allowed to operate on the city's streets a half hour after sunset or a half hour before sunrise, and the carts would be prohibited from traveling along all state and national highways as well as Sixth, 15th, Hart, Willow and St. Clair streets. They also would be required to have working headlights, tail lights and brake lights as well as display a slow moving vehicle sign.

Those found to be in violation of any of these requirements would be issued a fine of no more than $200 per offense.

Mayor Al Baldwin said he supported the proposed ordinance but said it's likely changes would be made to it before it's sent to the city council for approval.

"I don't particularly object to this, but we want to do it in an orderly manner," Baldwin said. "They need to be safely equipped, and we need requirements that will make the streets safe but afford (drivers) the opportunity to save some money."

Baldwin and Grove said other surrounding communities, namely Oaktown, have similar ordinances involving golf carts.

Posted by Marcia Oddi on May 30, 2008 04:53 PM
Posted to Indiana Law

Ind. Decisions - Court grants transfer in two cases

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

State of Indiana v. Kimco of Evansville, Inc., n/k/a KCH Acquisition, Inc., The Franklin Life Ins. Co., and Vanderburgh County, Indiana, - where the issue was whether Kimco was entitled to damages for its loss of access to a public thoroughfare. See 10/31/07 ILB summary of COA opinion here - 4th case.

Dennis Conwell, Frank Splittorff, and Piece of America, LP v. Gray Loon Outdoor Marketing Group, Inc. (NFP) - a contracts case involving payments for making alterations to a web site. See ILB summary of the 9/7/07 COA opinion here - 3rd case.

Posted by Marcia Oddi on May 30, 2008 02:32 PM
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit decides one Indiana case today

In Harney, Brian v. Speedway SuperAmerica (SD Ind., J. McKinney), a 16-page opinion, Judge Bauer writes:

Plaintiffs brought a class action lawsuit against their employer, Speedway SuperAmerica LLC, alleging that the manner in which Speedway pays and forfeits its employees’ bonuses violates Indiana’s Wage Payment Statute and Wage Claims Statute. The district court granted summary judgment to Speedway, finding that Plaintiffs’ bonuses did not constitute “wages” under Indiana law, and therefore the two statutes did not apply. At best, the district court held, the bonuses were a form of “deferred compensation,” which were forfeited when Plaintiffs failed to meet the bonuses’ condition of continued employment with Speedway. Plaintiffs now appeal the district court’s grant of summary judgment to Speedway, claiming that the district court erred in determining that the bonuses were not “wages” under Indiana law, and that the retention element of Speedway’s bonus programs violates Indiana law.

We have reviewed the issues addressed by the district court and have determined that it ruled appropriately and without error in granting Speedway’s motion for summary judgment. Accordingly, we adopt the district court’s thorough and well-reasoned order, dated September 13, 2007, as our own and affirm the judgment of the lower court on all counts. A copy of the district court’s order is attached and incorporated herein.

Plaintiffs also move to certify certain questions of state law to the Indiana Supreme Court, and to stay this appeal pending a decision from the Indiana Supreme Court. Plaintiffs contend that there is no clear controlling precedent to guide the state law issues of (1) whether the Plaintiffs’ bonuses constitute “wages” under Indiana law; (2) whether the retention element of Speedway’s bonus programs violates Indiana law (specifically, Indiana’s Ten Day Rule) and is void as a matter of law; and (3) whether Speedway’s bon uses constitute “present” or “deferred” compensation. * * *

Our analysis in this case involves the interpretation of a specific bonus program of a single Indiana employer as applied to Plaintiffs’ particular factual circumstances. It is difficult to see how the determination of these employees’ personal circumstances could have a far-reaching precedential effect for others. As the district court’s opinion makes clear, the Indiana Supreme Court has provided guidance on when bonuses constitute “wages” under Indiana law. Because Plaintiffs are merely seeking a determination that their bonuses constitute wages, this case is not appropriate for certification.

We affirm the district court’s grant of summary judgment to Speedway and deny Plaintiffs’ request for certification.

Posted by Marcia Oddi on May 30, 2008 02:29 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 17 NFP)

For publication opinions today (5):

In John R. Myers, II v. State of Indiana , a 44-page opinion, Judge Bradford writes:

Today we state once again that a defendant is entitled to a fair trial, not a perfect trial. Concluding the imperfections in the murder trial of John Myers II did not deprive him of a fair trial, we affirm. * * *

We acknowledge that the case against Myers was entirely circumstantial and that there were certain discrete imperfections in his trial, specifically Dr. Radentz‟s references to rape, Detective Crussen‟s reference to a polygraph, and Detective Lang‟s reference to Myers‟s knowledge of the case. Upon a thorough review of the record, however, we are convinced that these imperfections, occurring over the span of a two-week trial, were more isolated than pervasive in nature, and that they did not create the cumulative effect of depriving Myers of his right to a fair trial. Both Detective Crussen‟s and Detective Lang‟s impermissible statements were countered by strict and thorough admonitions by the trial court, and Dr. Radentz‟s rape references, which were directed at the condition of Behrman‟s remains rather than the identity of the perpetrator, were thoroughly explored by defense counsel on cross-examination and demonstrated to be unconnected to any evidence specific to Behrman. As the State conceded at oral argument, Myers‟s trial may have been cleaner without these imperfections, but, separately or jointly, they were not sufficiently egregious to undermine our confidence in the trial proceedings leading to his conviction sufficient to constitute reversible error. A defendant is entitled to a fair trial, not a perfect one. See Averhart v. State, 614 N.E.2d 924, 929 (Ind. 1993). John Myers II received a fair trial. The judgment of the trial court is affirmed.

For background, start with this March 21 ILB entry, headed "Jill Behrman murder trial unfair, lawyer tells appeals court", and these from March 21 and March 19, with links.

Term. of Parent-Child Rel. of A.B., and Dawn B. v. Dept. of Child Services - "Appellant Dawn B. (“Mother”) appeals the involuntary termination of her parental rights, in Allen Superior Court, to her daughter A.B. We affirm."

Narendra Parbhubhai Patel v. United Inns, Inc. - "In sum, the trial court did not err in concluding that Patel breached his contractual obligation under the Patel Contract. Nor did the court err in granting partial summary judgment to United Inns on the issue of the validity of the liquidated damages clause in the Patel Contract. We therefore affirm the trial court’s order on summary judgment and entry of judgment after the bench trial. Affirmed."

In State of Indiana v. Shawn Massey , a 12-page opinion, Chief Judge Baker writes:

Indiana Code section 9-19-10-2 (the seatbelt statute) provides, in relevant part, that each occupant of a motor vehicle equipped with a safety belt “shall have a safety belt properly fastened about the occupant’s body at all times when the vehicle is in forward motion.” Is an occupant who has the lap belt fastened but who is not wearing the shoulder belt across his shoulder violating the statute? The purpose of the seatbelt statute and the language chosen by the legislature lead us to conclude that an occupant must have the lap belt fastened and wear the shoulder strap of the seatbelt across his shoulder to comply with the statute. * * *

Because the seatbelt’s shoulder strap was not positioned across her shoulder, the juvenile was not properly wearing her seatbelt and Massey, as the driver, had committed an infraction. I.C. § 9-19-11-3.3. Because Massey had committed an infraction, Officer Ferrer had statutory authority to detain her for the time sufficient to ask for her name and driver’s license. I.C. § 34-28-5-3. Thus, we conclude that the trial court erred as a matter of law when it granted Massey’s motion to suppress and we reverse and remand for further proceedings. The judgment of the trial court is reversed and remanded for further proceedings.

In Julie Moore Walker, et al v. James Thad Martin, et al , a 21-page opinion, Judge Kirsch writes:

Julie Moore Walker and Scot Moore, individually and as co-representatives of the Estate of Christopher Scot Moore, Deceased (“Christopher”) (collectively “the Moores”) appeal the trial court’s grant of summary judgment in favor of Timothy LaFountaine, individually and d/b/a LaFountaine Logging (“LaFountaine”). The Moores raise the following restated issues:

I. Whether the trial court erred in determining as a matter of law that truck driver, James Thad Martin (“Martin”), was an independent contractor rather than an employee of LaFountaine;

II. Whether LaFountaine owed a non-delegable duty to Christopher and was thus vicariously liable under one of the exceptions to the general rule that a principal is not liable for the negligence of an independent contractor; and

III. Whether a joint venture existed between LaFountaine and Martin.

We affirm.

NFP civil opinions today (5):

Howard Slusher v. Elizabeth Slusher Rogers (NFP) - "We remand this case to the trial court to enter an order containing: (1) a proper determination of Father’s credit for his prior born child; (2) findings as to whether Mother was voluntarily unemployed and a proper calculation as to her imputed income; and (3) correct calculations of Father’s share of the uncovered medical costs and a proper determination of Mother’s credit for insurance premiums paid. Therefore, we vacate the trial court’s modification order and remand for proceedings consistent with this opinion. Vacated and remanded with instructions."

Christopher Harrison v. Sheena Harrison (NFP) - "Christopher Harrison (“Father”) appeals a trial court judgment awarding primary physical custody of his son, Z.H., to Sheena Harrison (“Mother”). We affirm."

Bret D. Shaw v. American Family Mutual Insurance Co. (NFP) - "Bret D. Shaw appeals the trial court’s order granting summary judgment in favor of American Family Mutual Insurance Company (“American Family”) on Shaw’s bad faith and breach of contract claims based on American Family’s denial of coverage under his homeowner’s insurance policy. We affirm."

Guardianship of A.N.B. and J.N.B., William Baker v. Christine Leigh Baker n/k/a Christine Leigh Weitzenfeld (NFP) - "William Baker (“Father”) appeals from an order granting guardianship of Father’s children, A.B. and J.B. (collectively “the children”), to Mark Weitzenfeld (“Stepfather”) and Claudia St. Germain (“Grandmother”). Father presents a single issue for review, namely, whether the evidence is sufficient to support the guardianship order. We affirm."

T.S. v. Marion Co. Dept. of Child Services and Child Advocates, Inc. (NFP) - "Tiwanna S. (“Mother”) appeals the involuntary termination of her parental rights to her children, H.S. and A.S. Mother raises one issue on appeal, which we restate as whether the juvenile court’s judgment terminating Mother’s parental rights to the children is supported by clear and convincing evidence. We affirm."

NFP criminal opinions today (12):

Raymond East v. State of Indiana (NFP)

Payne T. Randle v. State of Indiana (NFP)

Kelly S. Thomas v. State of Indiana (NFP)

T.L.R. v. State of Indiana (NFP)

Kyle A. Aubuchon v. State of Indiana (NFP)

Tony E. Fields v. State of Indiana (NFP)

Joshua B. Wild v. State of Indiana (NFP)

Sajjad Q. Rasheed v. State of Indiana (NFP)

Luis Raul Lopez v. State of Indiana (NFP)

Nicholas J. Barnhill v. State of Indiana (NFP)

Perry L. Hicks v. State of Indiana (NFP)

Joe Huff, et al v. Stan Sadler (NFP)

Posted by Marcia Oddi on May 30, 2008 01:23 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Ind. high court considers jury selection in Ward appeal"

Yesterday's oral arguments before the Supreme Court in the direct appeal case of Roy Lee Ward v. State are the subject of a story today in the Evansville Courier & Press reported by Bryan Corbin. Some quotes:

Stacy Payne's name barely was mentioned Thursday as the Indiana Supreme Court considered an appeal by her admitted killer.

The justices are being asked to determine if Roy Lee Ward's death sentence for raping and murdering the Spencer County teen should stand, or if the case should be sent back to the trial court for resentencing.

Ward's attorneys do not dispute that Ward killed Payne on July 11, 2001, and he pleaded guilty to the charges. * * *

At issue in the appeal is the fairness of the jury selection process in the sentencing phase of his 2007 trial.

Ward, now 35, had been found guilty and sentenced to death in Payne's slaying, but the Indiana Supreme Court reversed that conviction in 2004 and ordered a new trial, finding the Spencer County jurors had been tainted by pretrial publicity.

The 2007 trial was heard by jurors from Clay County in west central Indiana, with Vanderburgh County Superior Court Judge Robert J. Pigman presiding.

All that was left for the jury to decide was whether he should be sentenced to death, life in prison or a specific prison term.

The second jury deliberated less than 45 minutes before returning a unanimous verdict of death, and Pigman ordered the death sentence.

Ward's attorney, Steven Ripstra, argued Thursday that the Clay County jurors should have been questioned individually, with other potential jurors out of the room, so that one person's answers wouldn't be overheard and influence the next person's.

That is how the two-day jury selection process started, Ripstra said, but by the end of the process, the 120 prospective jurors were lumped into groups of 10 to 20, he said. That prevented Ward from getting a fair retrial, Ripstra contended.

Ripstra and Ward's other attorney, Lorinda Meier Youngcourt, theorized that if jury selection had continued longer, different jurors might have been selected, and they might have decided on a different sentence.

Arguing for the prosecution, deputy state attorney general James B. Martin said Ward's jury was selected fairly.

"Ward got what he wanted: He got another county (Clay), he got a fair trial," Martin told the supreme court. "The main point is, these (defense) claims are without merit." * * *

Ward's death sentence means he receives an automatic appeal before the Indiana Supreme Court. This is the first step in what is likely to be a lengthy appellate process, however. Death sentences can be appealed through the state courts and the federal court system, which typically means years can elapse before an execution is carried out.

Besides jury selection, Ward's defense team is raising several other grounds for appeal. They contend Clay County jurors should not have been shown gruesome autopsy photographs and that evidence collected from Ward during a police search should not have been allowed.

Posted by Marcia Oddi on May 30, 2008 08:19 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Channel 8 didn't defame pharmacy firm, judge rules"

Kevin O'Neal reports in the Indianapolis Star today:

A federal judge dismissed a defamation lawsuit against WISH (Channel 8) on Thursday.

The judge ruled that the station's report on a Canadian pharmacy benefit company that sells drugs to Americans was covered by Indiana's Anti-SLAPP Act, which protects reporters against lawsuits as long as the reporting is done in what the law says was "good faith."

WISH asked U.S. District Judge Larry McKinney to dismiss the suit in late February. The suit was filed by CanaRx Services, a Canadian company that sells prescription drugs by phone and online.

The suit was a response to a November 2007 series of reports on Internet prescriptions titled "Bad Medicine" by reporter Karen Hensel. According to the court ruling, the U.S. Food and Drug Administration had been investigating CanaRx since 2003 and had criticized the Canadian company for making illegal drug imports to the U.S.

The WISH report referred to the FDA's criticism of CanaRx. The Canadian company said that reference, along with quotes from the FDA saying 80 percent of prescriptions ordered from the Internet were counterfeit, defamed it.

McKinney rejected CanaRx's arguments in his Thursday decision granting WISH's motion to dismiss the case.

Here is a copy of federal Judge MCKinney's 17-page opinion. [Note: Fixed now!]

Posted by Marcia Oddi on May 30, 2008 08:04 AM
Posted to Ind Fed D.Ct. Decisions

Thursday, May 29, 2008

Ind. Decisions - Tax Court finds RV Park eligible for a religious purposes exemption [Updated]

In Cedar Lake Conference Association v. Lake County Property Tax Assessment Board of Appeals, a decision dated May 28th, 2008, Indiana Tax Court Judge Fisher writes:

Cedar Lake Conference Association (CLCA) challenges the final determination of the Indiana Board of Tax Review (Indiana Board) which upheld the Lake County Property Tax Assessment Board of Appeals’ (PTABOA) denial of CLCA’s application for a religious purposes exemption on its real property for the 2000 tax year (year at issue). The question before this Court is whether the Indiana Board’s final determination is supported by substantial evidence.

CLCA is an Indiana not-for-profit corporation whose stated purpose is “to conduct religious services and promote religious education.” CLCA owns and operates the Cedar Lake Bible Conference Center RV Park and Campground in Cedar Lake, Indiana. * * *

During the year at issue, CLCA used the RV Park in conjunction with the Conference Center “to promote Christian principles to youth and adults in a camp environment.” As such, participants of CLCA’s programmed events used the RV Park (“affiliated” individuals). The RV Park was also used by “non-affiliated” individuals (i.e., those who did not attend CLCA’s programmed events), other non-profit organizations, churches, and prison ministries. * * *

While property tax exemption statutes are strictly construed against the taxpayer and in favor of the State, an exemption will not be construed so narrowly that the legislature’s purpose in enacting it is defeated or frustrated. * * * Thus, the fact that the RV Park and the Conference Center are delimited (i.e., they are separate parcels with distinct key numbers) neither alters the manner in which CLCA used those properties nor diminishes CLCA’s religious purpose. * * * Furthermore, the fact that some recreational activities may have taken place on the RV Park does not necessarily lead to the conclusion that CLCA’s use of the property does not further its religious purposes. * * * Consequently, when the evidence and testimony presented by CLCA are viewed in their entirety, it is apparent that CLCA predominately used the RV Park for religious purposes.

CONCLUSION For the above stated reasons, the Indiana Board’s final determination is not supported by substantial evidence and is therefore REVERSED. The matter is REMANDED to the Indiana Board so that it may instruct the appropriate assessing officials to take actions consistent with this opinion.

Readers may recall this ILB entry from May 26th headed "Exemptions for Charities Face New Challenges."

[Updated 5/30/08] "Tax Court reverses rulings denying religious tax exemption" is the headline of an AP story today. Some quotes:

A Christian campground is entitled to a religious tax exemption even though some recreational activities may have occurred there, the Indiana Tax Court has ruled.

The ruling overturned decisions by the Indiana Board of Tax Review and Lake County Property Tax Assessment Board of Appeals denying the religious exemption for the Cedar Lake Conference Association, which owns and operates the Cedar Lake Bible Conference Center RV Park and Campground.

The association is a not-for-profit corporation whose stated purpose is "to conduct religious services and promote religious education," according to court documents. The 27-acre RV park, which includes an archery range, walking trails and a prayer garden, was used by churches, prison ministries and other organizations as well as by people who did not attend its programmed religious events. * * *

The state board had found that the association failed to prove that the RV park was predominantly used for religious purposes because it did not document a breakdown of the time spent on religious and non-religious activities.

But the tax court found that the association had maintained the RV park was integral to its religious mission and that more than 67 percent of the park's income came from individuals who participated in its religious programs.

The tax court found that "it is apparent that CLCA predominantly used the RV Park for religious purposes" and "the fact that some recreational activities may have taken place on the RV Park does not necessarily lead to the conclusion that CLCA's use of the property does not further its religious purposes."

Posted by Marcia Oddi on May 29, 2008 05:14 PM
Posted to Indiana Decisions

Ind. Courts - "Bloomington Attorney Charged in Securities Scam"

From a press release issued today by the Indiana Secretary of State's office:

Bloomington police arrested attorney Phillip Chamberlain overnight on charges of misconduct involving his clients and violations of Indiana's Securities Act. The arrest comes after a joint investigation conducted by the Bloomington Police Department and Indiana Secretary of State Todd Rokita's Prosecution Assistance Unit (PAU). Monroe County Prosecuting Attorney Chris Gaal filed the criminal charges. Chamberlain faces five felony counts and could face up to eight years in prison for each charge. * * *

The charges filed indicate that a client of Chamberlain sought legal advice related to investing in rental properties. Chamberlain allegedly offered his client an alternative whereby the client would loan Chamberlain and others money for the development of a golf course and construction of a home in Lawrence County. Instead of investing the client's funds, Chamberlain is being charged with stealing a large portion. He also allegedly forged an endorsement signature on one of the client's checks and then deposited the check into his own bank account.

Specific charges against Chamberlain include two counts of Fraudulent or Deceitful Acts with the Offer, Sale or Purchase of a Security, one count of Forgery, one count of Offer or Sale of an Unregistered Security and one count of Transacting Business as an Unregistered Broker-Dealer or Agent - all Class C felonies. The charges described are merely an accusation. The defendant is presumed innocent until and unless proven guilty.

Posted by Marcia Oddi on May 29, 2008 05:10 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 15 NFP)

For publication opinions today (2):

In In the Matter of the Adoption of D.C.; H.R. v. R.C., a 16-page opinion, Judge Bradford writes:

Appellant-Respondent H.R. (“Biological Mother”) appeals the trial court’s order denying her motion to set aside an adoption decree in favor of Appellee-Petitioner R.C. (“Adoptive Mother”) on the basis that Indiana Code section 31-19-14-4 bars her challenge as untimely. Upon appeal, Biological Mother claims that the adoption decree, which was entered without notice to her, was void for lack of personal jurisdiction and violated her due process rights. Concluding that Indiana Code section 31-19-14-4 is unconstitutional as applied to the instant circumstances, we reverse and remand to the trial court for a hearing on the merits of Adoptive Mother’s adoption petition. * * *

We conclude that section 31-19-14-4, when applied to bar Biological Mother’s challenge to the adoption proceedings in this case, creates an unconstitutional due process violation. Biological Mother has the fundamental right to make decisions regarding the care, custody, and control of her children, and this right falls within the protections of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

R.J.G. v. State of Indiana - "Appellant-Respondent R.J.G. appeals from the juvenile court’s disposition following his admission that he committed what would have been, if committed by an adult, Class C felony Criminal Recklessness and Class A misdemeanor Marijuana Possession. We affirm in part, reverse in part, and remand with instructions."

NFP civil opinions today (5):

James A. Gates, IV v. Kelly Wilder Gates (NFP) - "Appellant James A. Gates IV (“Father”) appeals from the trial court’s December 23, 2007 order regarding his ability to exercise his parenting time over the 2007 Christmas holiday and his child support obligation. On appeal, Father contends that the trial court abused its discretion in modifying the Mediated Settlement Agreement (“divorce agreement”), failing to enforce the agreement, finding that Father was voluntarily unemployed or underemployed, and imputing $50,000 annual income to Father for the purpose of figuring his child support obligation. Concluding that the trial court did not abuse its discretion in any regard, we affirm."

State of Indiana v. Tina S. Weatherwax-Ausman (NFP) - "We cannot conclude that two individuals arriving at a superstore parking lot together and separately proceeding to purchase one box of pseudoephedrine each is in and of itself a reasonable basis for intruding on one’s privacy. Although Trooper Burgess has extensive training and knowledge of methamphetamine-related crimes, Bulington’s holding stands. Without more, there was an insufficient basis to support the stop of Weatherwax-Ausman. Again, the State has not established that all reasonable inferences lead to a conclusion opposite that reached by the trial court."

Dennis Peterson v. Miami Correctional Facility, et al (NFP) - "The Facility was entitled to retain possession of and ultimately destroy Peterson’s hotpot, notwithstanding the not guilty finding in the disciplinary action. We affirm the small claims judgment in favor of the Facility."

Elaine Reynosa v. Review Board of the Indiana Dept. of Workforce Development, and Indianapolis Public Schools (NFP) - "Elaine Reynosa appeals the decision of the Review Board of the Indiana Department of Workforce Development (the “Board”) that she was discharged for just cause and the resulting denial of her unemployment benefits. Reynosa claims that there was insubstantial evidence to support the Board’s decision. We affirm."

Donald E. Beatty v. Stacy Beatty (NFP) - "The trial court properly modified Donald’s weekly child support obligation."

NFP criminal opinions today (10):

John Hollins v. State of Indiana (NFP)

Matthew R. Johnson v. State of Indiana (NFP)

Abjul K. Johnson v. State of Indiana (NFP)

Jerry Craig v. State of Indiana (NFP)

Jerry Shipley v. State of Indiana (NFP)

Ira L. Wilson v. State of Indiana (NFP)

James Rose v. State of Indiana (NFP)

Berry A. Sauer v. State of Indiana (NFP)

Marlin D. Hostetler v. State of Indiana (NFP)

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

Posted by Marcia Oddi on May 29, 2008 12:14 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Unsolved Tippecanoe County Courthouse bombing nearly ten years old

Updating this May 10th ILB entry, Sophia Voravong of the Lafayette Journal Courier reports today in a story that begins:

For nearly 10 years, authorities have been storing the stolen Ford F-250 pickup truck that drove into the Tippecanoe County Courthouse, bursting into flames and causing extensive first-floor damage.

The hope is that the person or people responsible for the attempted bombing on Aug. 2, 1998, will be caught and that the charred vehicle would be compelling evidence.

"I feel strongly that there is someone in our community who has that little piece of information," Tippecanoe County Sheriff Tracy Brown said. "We want a citizen to come forward and do the right thing. We're hoping that this will put us in a position so that we can close the case."

Brown and David Capp, interim U.S. Attorney for the Northern District of Indiana, announced Wednesday that reward money for information that would lead to an arrest and conviction in the case has been raised from $10,000 to $50,000.

The announcement comes just two months before a 10-year federal statute of limitations for arson and related crimes runs out.

Posted by Marcia Oddi on May 29, 2008 10:37 AM
Posted to Indiana Courts

Ind. Courts - Who am I? Why am I here?

Joy Leiker of the Muncie Star-Press reports today:

WINCHESTER -- Where is the front of the Randolph County Courthouse?

The answer to that question could determine when construction of a two-story annex and renovation of the existing 131-year-old courthouse could finally begin.

It's the latest twist to an unending spiral of problems with the courthouse project. This one comes a week after the Board of Zoning Appeals denied a variance for the annex and courthouse. County commissioners had requested the variance because the structure will be too close -- less than 25 feet -- from the right of way on the south side of the downtown courthouse square. (The courthouse sits in the middle of downtown WInchester, nearly centered on a square.)

But the variance was rejected, and now it seems the county is going to settle this latest dispute with a legal fight, one that centers on finding the front of the building.

During a special commissioners meeting Wednesday night, County Attorney John Tanner contended the BZA misunderstood its own rules, and that the 25-foot setback applies only to the front of the courthouse. He said the front of the courthouse is on the east side and faces Main Street, since its address is 100 S. Main St. He wants a judge to decide for sure, and plans to file a writ of certiorari once the minutes to last week's BZA meeting are complete.

But Area Planning Executive Director Cathy Flatter disagreed with Tanner, and said the courthouse has not one front, but four -- one on each side of the courthouse square. In her loud exchange with Tanner, where each one interrupted the other to make a point, Flatter said the definition of frontage in the county code has nothing to do with a building's address.

"The courthouse has four front setback requirements because you have four streets," Flatter said.

And just as that was left unanswered Wednesday night, so was the question of what happens next.

See also May 20th ILB entry, headed "Setback requirement deals setback to Randolph County courthouse project".

Posted by Marcia Oddi on May 29, 2008 10:31 AM
Posted to Indiana Courts

Law - "37 fired attorneys at Sonnenschein represent about 5 percent of the firm's 691 lawyers"

The Chicago Tribune reports today:

Sonnenschein Nath & Rosenthal, one of Chicago's biggest corporate firms, broke with that tradition Wednesday, acknowledging that the lackluster economy is taking a toll on billings and that it has laid off 124 employees, including 37 attorneys, six of whom are partners.

Most law firms hate to admit the need to downsize to avoid any sign of financial weakness in an intensely competitive industry, and a mass layoff such as Sonnenschein's is even more out of the ordinary.

But over the past decade, the law business has undergone a fundamental change, outgrowing its conservative, clubby ways to engage in some of the most common business practices: mergers, the hiring away of talent and, increasingly, layoffs. Partners are being held to specific profit goals, and those benchmarks are being chronicled in legal magazines, increasing the pressure on firm management to take bold steps such as demoting weaker partners or pushing them out the door. * * *

The 37 fired attorneys at Sonnenschein represent about 5 percent of the firm's 691 lawyers. Of the 37, six are partners, four are "of counsel" and 27 are associates, a firm spokeswoman confirmed. The Above the Law blog first reported Sonnenschein's layoffs Tuesday night.

The majority of the layoffs involved paralegals, secretaries and other administrative staff. The total of 124 represent about 7 percent of Sonnenschein's workforce of more than 1,700 in 13 U.S. cities and Brussels.

The Chicago office, where the firm was founded, is its largest and was the hardest hit by the cuts. Ten lawyers and 30 support employees were let go out of a total of 691 employees in the Sears Tower.

The most affected practice areas were real estate and litigation, the firm's largest practices and traditional strengths. Financing for new real-estate projects has dried up after a mortgage crisis locked up credit markets. The cuts in litigation were more surprising, observers said, because the practice is typically countercyclical. * * *

Because of a more bottom-line focus, law firms are more reluctant to carry people in down times, legal recruiters said. Associates are especially vulnerable in the current economic environment because they usually don't have big-money clients. They are also more expensive after last year's salary bump. The salary for many entry-level lawyers at big law firms in Chicago is $160,000. * * *

Last year, Chicago firm Mayer Brown fired or demoted 45 partners as a means of winnowing less-productive members of the firm. The news, reported by the Tribune, stunned others in the legal community because the firm starkly framed its downsizing as a means of improving profitability.

The cuts at Sonnenschein came after a rapid expansion in recent years. The firm hired dozens of partners from other firms and opened five new offices in smaller markets such as Phoenix and Charlotte. It also quietly trimmed less profitable practices, resulting in the demotion or involuntary departure of more than two dozen partners, according to published reports.

The moves are part of an ambitious strategy to lift Sonnenschein's profitability from the middle of the nation's 100 largest firms into the top echelon. But the growth plans have not materialized as quickly as firm management had expected.

The firm hoped to boost its profits-per-partner, a key benchmark, from about $800,000 in 2005, to $1.4 million by 2008. In 2007, the firm's profits-per-partner came in at $915,000, according to American Lawyer magazine.

The economic downturn has not stopped Sonnenschein's recruitment efforts. It has hired about 50 lawyers, including associates, Portnoy said.

He added: "It's not inconsistent at all to add lawyers in areas where there is strong client need and strategic priority while simultaneously reducing lawyers in some areas."

Posted by Marcia Oddi on May 29, 2008 10:18 AM
Posted to General Law Related

Ind. Courts - More on: "McShurley vs. McKinney feud lands in Indiana Supreme Court"

"Allegation a 'disbarment offense'" is the headline to Muncie Star-Press reporter Seth Slabaugh's story today, updating this ILB entry from yesterday. The lengthy story begins:

If Delaware County Prosecutor Mark McKinney misled local courts as alleged by Mayor Sharon McShurley, he could lose his license to practice law.
Advertisement

But the two judges who were allegedly misled about where assets seized from drug dealers were deposited aren't commenting yet.

"I don't dare make any public comment on that," said Circuit Court 2 Judge Richard Dailey. "Obviously, whatever was done (in court) is a public record."

Judge John Feick of Circuit Court 4 said: "If there's an investigation going on, I should stay out of it. I should keep my mouth shut."

The mayor filed a complaint against McKinney with the Indiana Supreme Court Disciplinary Commission on May 19.

"I can't really say anything," McKinney said Wednesday night. "She has filed a complaint with the disciplinary commission."

"I have to answer it through that forum, so I really can't comment until that process runs its course."

One of McShurley's allegations repeats a finding in the 2007 audit of the city of Muncie by the State Board of Accounts.

Going back to at least 1999, the Muncie-Delaware County Drug Task Force (DTF) has ignored a state law requiring cash and proceeds from the sale of other property seized from drug dealers to be deposited in the general fund of the governmental unit employing the DTF officers, according to state examiners.

Posted by Marcia Oddi on May 29, 2008 10:17 AM
Posted to Indiana Courts

Ind. Gov't. - IU's legal bills for Sampson issues are $203K so far

Mark Alesia reports this morning in the Indianapolis Star:

Indiana University's athletic department spent $203,000 through March on outside legal fees connected to allegations of NCAA rules violations by former men's basketball coach Kelvin Sampson and his staff.

The legal bills were obtained Wednesday through a public records request by The Star.

IU spokesman Larry MacIntyre said the school has not yet been billed for work beyond March. But there likely will be additional legal charges connected to IU's lengthy written response to NCAA allegations, filed earlier this month, and its appearance at an infractions committee hearing June 13 in Seattle.

The expenses through March included $178,000 to the Indianapolis firm Ice Miller. The firm conducted an investigation and prepared a report to the NCAA in October 2007 about infractions IU discovered last summer.

Posted by Marcia Oddi on May 29, 2008 10:06 AM
Posted to Indiana Government

Ind. Decisions - A reminder of this morning's oral arguments before the Supreme Court

This morning the Supreme Court will hold oral arguments in three cases, beginning at 9 AM with IDEM v. Raybestos Products Co., where the COA concluded: "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."

See this ILB entry from Monday for details on all three cases to be argued this morning. Webcasts will be available here.

Posted by Marcia Oddi on May 29, 2008 06:45 AM
Posted to Upcoming Oral Arguments

Wednesday, May 28, 2008

Ind. Courts - More on "Four eye Clark judicial post: Governor's appointee will fill rest of term" [Updated]

Updating this ILB entry from May 22nd, which included this quote from the LCJ:

Floyd County Deputy Prosecutor Abe Navarro, 36, and Jeremy Mull, 34, a former Clark County deputy prosecutor now working in Afghanistan for a State Department contractor, have applied for the job, Jankowski said, and Daniels is expected to choose one of them.

[Judge] Donahue will depart next Thursday after more than two decades on the bench.

This afternoon from the LCJ:

Gov. Mitch Daniels today announced the appointment of Abe Navarro as Clark Circuit Court judge. Navarro, 36, will succeed Judge Daniel Donahue, who is retiring.

The appointment takes effect Sunday. Navarro, of Jeffersonville, has been a Floyd County deputy prosecutor since 2002.

The appointee will fill out the remainder of Judge Donahue's term; it is up for election in November.

[Updated 5/29/08] Ben Zion Hershberg of the LCJ has a story today on the appointment of "Abe Navarro, a 36-year-old Republican from Jeffersonville, [to] take office as Clark County circuit judge on Sunday."

Posted by Marcia Oddi on May 28, 2008 06:25 PM
Posted to Indiana Courts

Ind. Decisions - More on: A reminder of today's COA oral argument in Orange County casino case

The ILB posted Monday and early this morning that:

This morning at 11:45 AM in the COA Courtroom, a panel of the Court of Appeals will hear oral arguments in the case of Lauth Indiana Resort & Casino, LLC v. Lost River Development. Unfortunately, the hearing will not be webcast.

But the ILB messed up. The arguments began at 11:00 AM, NOT 11:45 AM.

At least one person missed the oral arguments because they relied on the ILB.

My sincerest apologies - I will try to make sure it doesn't happen again!

Posted by Marcia Oddi on May 28, 2008 04:41 PM
Posted to Upcoming Oral Arguments

Courts - More on "GE Suffers a Redaction Disaster"

Updating this ILB entry from earlier today, if your opponent does ineffectually redact information, can you look?

Presumably redacted material is the same as any other metadata, there have been several articles addressing this issue; the most recent is this one by David Hricik and Chase Edward Scott, of Mercer Law School. A quote:

Can You Look?

Given that metadata is a relatively new concern for lawyers, it is not surprising that formal ethical rules do not yet directly address the question of whether it is proper for a lawyer to search an electronic file sent by another lawyer to see if any useful embedded data is present. However, like most states, Georgia has a general catchall rule that prohibits "professional conduct involving dishonesty, fraud, deceit or misrepresentation." Although the Georgia Bar has not yet addressed the question of whether it is dishonest to look for metadata in a document exchanged between counsel, bar associations in other jurisdictions have and may provide some guidance to Georgia lawyers.

Unfortunately, however, the bar associations that have analyzed the issue have openly split on whether it is ethical for a lawyer to look for metadata. And the split is deep, direct, and irreconcilable.

On one end of the spectrum, the bars of New York, Florida, Arizona, and Alabama have concluded that conducting a purposeful search for metadata is unethical. The New York Bar Association emphasized that "it is a deliberate act by the receiving lawyer, not carelessness on the part of the sending lawyer, that would lead to the disclosure of client confidences and secrets" in the embedded data. Alabama's Bar similarly condemned the act of mining for metadata as "a knowing and deliberate attempt by the recipient attorney to acquire confidential and privileged information in order to obtain an unfair advantage against an opposing party." Florida's Bar also agreed but more softly wrote that a recipient should not try to view metadata the lawyer knows or should know was not intended for his or her viewing. Most recently, Arizona's Bar issued an opinion advising lawyers that as a general rule a lawyer may not "mine" documents from opposing counsel for metadata.

On the other end of the spectrum, both the American Bar Association ("ABA") and the Maryland Bar Association found nothing unethical with deliberately mining documents sent by opposing counsel outside the context of discovery for metadata. The ABA expressed its disagreement in mild terms, however, stating only that "the Committee does not believe that a lawyer . . . would violate" his or her professional duties by mining for metadata. Taking a slightly more nuanced approach, the District of Columbia Bar reasoned that viewing metadata was dishonest only if, before viewing it, the lawyer actually knew that the metadata had been inadvertently sent.

Perhaps representing the more balanced view is a very recent opinion from the Pennsylvania Bar Association. After noting the split detailed above, the Pennsylvania Bar refused to take a bright-line position on whether mining for metadata is unethical. Instead, it stated that "each attorney must determine for himself or herself whether to utilize the metadata contained in documents and other electronic files based upon the lawyer's judgment and the particular factual situation." Similarly, the Pennsylvania Bar stated that whether the information should be used turned upon "the nature of the information received, how and from whom the information was received, attorney-client privilege and work-product rules, and common sense, reciprocity and professional courtesy."

For more, see this article from earlier this year by Marcia Coyle of The National Law Journal titled "Metadata, can you get it, can you use it?" and this one by by Donald R. Lundberg, Executive Secretary of the Indiana Supreme Court Disciplinary Commission, titled "Mining for Metadata: Ethics Questions Surrounding Inadvertently Sent Embedded Data."

Posted by Marcia Oddi on May 28, 2008 01:31 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 11 NFP)

For publication opinions today (0):

NFP civil opinions today (4):

Bayview Trading Group v. City of Marion Board of Public Works & Safety, and Downtown City Center (NFP) - "Based on the facts and circumstances before us, we conclude that the Board’s decision regarding the demolition order, and the trial court’s affirmation of that decision was not arbitrary, capricious, an abuse of discretion, unsupported by the evidence, or in excess of statutory authority."

Term. of Parent-Child Rel. of H.S., Thomas Smith and Sheila Smith v. Wayne Co. Dept. of Child Services (NFP) - "Thomas and Sheila Smith appeal the termination of their parental rights to their daughter, H.S. We affirm."

Jamie Elaine Dunnivan v. ETS, Inc. and Jayne Hanson (NFP) - "Jamie Elaine Dunnivan appeals the trial court’s order granting summary judgment in favor of ETS, Inc. and Jayne Hanson on Dunnivan’s complaint alleging false imprisonment, false arrest, and malicious prosecution. Dunnivan presents three issues for review. But we address a single dispositive issue, namely, whether Dunnivan has presented a cogent argument on appeal. We affirm."

W. Houser Canter v. New Albany Board of Zoning Appeals, City of New Albany, Ted R. Fullmore, et al (NFP) - "The BZA’s denial of Canter’s application was based upon substantial evidence. Neither the City nor the BZA denied Canter his right to due process. The trial court did not err in denying Canter’s claims for inverse condemnation and equitable estoppel. Affirmed."

NFP criminal opinions today (7):

Brandon Rogers v. State of Indiana (NFP)

Felipe Gonzalez v. State of Indiana (NFP)

Ronald Mitchell v. State of Indiana (NFP)

Gary Rutherford v. State of Indiana (NFP)

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

John King v. State of Indiana (NFP)

Allen Bolden v. State of Indiana (NFP)

Posted by Marcia Oddi on May 28, 2008 01:02 PM
Posted to Ind. App.Ct. Decisions

Courts - "GE Suffers a Redaction Disaster"

So reads the headline to an instructive (but not instructive enough, see below) story today by Douglas S. Malan of The Connecticut Law Tribune. Some quotes:

Lawyers involved in the class action sex discrimination case against Fairfield, Conn.-based General Electric in 2007 would rather you not read passages from various filings.

After all, the plaintiffs' firm, Sanford, Wittels & Heisler in Washington, D.C., took the time and effort to black out reams of pages in numerous briefs to make them inaccessible to the public -- or so they thought.

But as of late last week, you could download several documents through PACER's federal court filing system, copy the black bars that cover the text on the screen and paste them into a Word document.

Voilà. Information about the inner-workings of GE's white, male-dominated management and their alleged discriminatory practices against women, which is supposed to be sealed by court order, appears with little technical savvy required. * * *

Late last week, Shea contacted Sanford to discuss the matter. Sanford, the plaintiff's lawyer, then called the Law Tribune to shed more light on the matter.

"I wasn't aware of the severity of this problem," he said. "Certain documents have been filed improperly by us. If this redacted material is in the public domain, it becomes a problem for GE and for us.

"We're going to try to take steps to correct that error. We're doing everything we can today (last Thursday)" to make emergency, corrected filings with federal court clerks who are aware of the problem, Sanford said.

PACER account representative Shawn Robledo, who works in PACER's service center in San Antonio, also was unaware of the problem until she was guided through the process of downloading, copying and pasting.

"We need to report this to the court," she said. "We've never had this problem come up. I've been here for years and have never seen [a redaction] done like this."

The PACER service center is operated by the Administrative Office of the U.S. Courts in Washington, D.C.

Spokesman Richard Carelli said PACER employees do not check filings to make certain that redacted information actually is inaccessible. "The total responsibility rests with the lawyers" to redact properly, he said. * * *

The security breach in her case underscores a hot issue in the legal profession involving uncovered trails of electronic data, known as metadata. Where once a black marker strike on a piece of paper was sufficient, redaction in the digital world requires special software and the know-how to delete the words behind the shield.

Sloppy information management "has been a huge problem" for lawyers, said Connecticut Chief Disciplinary Counsel Mark Dubois. "Metadata is a fascinating area of developing law. It is much discussed in the fields of risk aversion and risk management."

Dubois said a lawyer or law firm who has insufficiently redacted information in a case could be in violation of a host of ethical rules and an easy target for a malpractice lawsuit.

Redaction problems often arise when people use old versions of Adobe software, which turns paper documents into an easy-to-read electronic Portable Document Format, the format of choice for PACER and many other web sites with multiple documents.

There are ways to hide the text in older versions of Adobe, but the process is "cumbersome" and requires multiple programming steps, said Glastonbury attorney N. Kane Bennett, a member of the Connecticut Bar Association's Legal Technology Committee.

"With the newest version of Adobe, it is pretty simple to hide the text with a black box and then scrub the hidden text behind it," said Bennett, who was unfamiliar with problems in the Schaefer case. "This prevents people from copying and pasting into a Word document." * * *

In 2005, the Department of Defense suffered through a similar dispersion of classified information. Redacted segments of an investigative report on the shooting death of an Italian journalist by U.S. soldiers in Iraq could be copied and pasted from a PDF into a Word document.

The article could be more instructive. This is not a new problem, there have been a number of similar stories over the past several years.

Here, for instance, is a NYT story from 2003 that begins:

An internal report that harshly criticized the Justice Department's diversity efforts was edited so heavily when it was posted on the department's Web site two weeks ago that half of its 186 pages, including the summary, were blacked out.

The deleted passages, electronically recovered by a self-described ''information archaeologist'' in Tucson, portrayed the department's record on diversity as seriously flawed, specifically in the hiring, promotion and retention of minority lawyers.

See this Oct. 23, 2003 article from a British publication, The Register.. It talks about the Justice Dept. mistake, and others:

It turns out the report began its life as a Microsoft Word document, and whoever was in charge of sanitizing it for public release did so by using Word's highlight tool, with the highlight color set to black, according to an analysis by Tim Sullivan, CEO of activePDF, a maker of server-side PDF tools. The simple and convenient technique would have been perfectly effective had the end product been a printed document, but it was all but useless for an electronic one. "Using Acrobat, I'm actually able to move the black boxes around," says Sullivan. "The text is still there." [ILB - emphasis added]

In 2000, the ,New York Times made a similar error in publishing on its website a classified CIA file documenting American and British officials' engineering of the 1953 coup that overthrew Iran's elected leadership. Before releasing the document as a PDF file, the paper blacked out the names of Iranians who helped with the plot. But online intelligence archivist John Young published an unsanitized version of the report after discovering that the opaque black lines and boxes concealing the names could easily be removed.

Both cases demonstrate that what you see is not always what you get in electronic documents. Censors could have more effectively eliminated the text by deleting it, rather than painting it over. Additionally, commercial software is available that's designed specifically to help government agencies redact PDF files for release under FOIA and the Privacy Act. Pennsylvania-based Appligent even sells its "Redax" Acrobat plug-in to the Justice Department. "The amazing thing is that there are different divisions in the Department of Justice that are using our software, so it's a little shocking that they would do this in Word," says company president Virginia Gavin.

Here is a May 25, 2005 article (3 years ago!) in New Orleans attorney Ernest Sveenson's blog, PDF for Lawyers, answering Q & As on PDF redaction.

For more, see this June 2006 article from Adobe titled "Redacting PDF files: A survey of tools."

Posted by Marcia Oddi on May 28, 2008 12:19 PM
Posted to Indiana Courts

Ind. Courts - "Attorney's meth case ends in six-year prison sentence"

The ILB has had a number of entries on Teresa Perry, the young Evansville attorney charged with meth-related offenses.

Today reporter Kate Braser writes in a long story that begins:

As he pleaded with a judge to spare his client from jail time for her meth convictions, attorney Doug Walton said when he took the LSAT with Teresa Perry years ago, he never imagined he'd one day defend her in court.

"She was bright-eyed and pursuing her goal of becoming a lawyer," Walton said, describing his client as "truly remorseful."

After listening to more than an hour of arguments by attorneys, Vanderburgh Superior Court Judge Wayne Trockman sentenced Perry to a total of six years in the Indiana Department of Correction.

Perry wept throughout the sentencing, as did many of the more than 20 people who crowded into the courtroom to support her.

Her pastor, the Rev. Jeffrey Stratton of American Baptist East Church, has been active in her recovery. During Tuesday's sentencing, he told Trockman he did not believe Perry should serve jail time.

"When my own brother was in the midst of his addiction, I testified in court that he needed prison time," Stratton said. "But I see this case as a success story. A tremendous amount of resources have been brought to bear, and that shouldn't be held against her."

Perry attended an inpatient treatment program and has continued recovery efforts through other local programs since her arrest.

The judge acknowledged that Perry, 34, a licensed attorney, has been proactive in her recovery, but he said evidence uncovered in the investigation pointed to Perry being more than an addict.

Perry was arrested in May 2007, accused of selling drugs to a police informant. Investigators discovered what they described as a meth lab inside her home in the 3300 block of Waggoner Avenue, near McGary Middle School.

She previously pleaded guilty to two counts of dealing in a controlled substance, a class B felony; two counts of dealing in methamphetamine, a class B felony; and possession of methamphetamine, a class D felony.

Her plea was open, meaning it was up to Trockman to determine her sentence.

Trockman said he considered that Perry was charged with a nonviolent crime, has no previous record, has engaged in voluntary treatment and is unlikely to reoffend.

However, Trockman said he was concerned that some of the drug-related activity took place at Perry's rental home near a school, and he did not believe the items found at her home and law office reflected her as merely an addict.

"And although you did not manufacture drugs in the traditional sense, you were processing them at your home and office to make them more pure," Trockman said.

"This leads me to the most troubling aspect of this crime. Ms. Perry is an addict, and may very well succeed, and we hope that she will, but addicts don't have to be as engaged in the drug culture as Ms. Perry was."

Posted by Marcia Oddi on May 28, 2008 10:31 AM
Posted to Indiana Courts

Ind. Courts - "McShurley vs. McKinney feud lands in Indiana Supreme Court"

Nick Werner reports today in the Muncie Star-Press in a lengthy story that includes these quotes:

MUNCIE -- The feud between Mayor Sharon McShurley and Delaware County Prosecutor Mark McKinney has now escalated into a legal battle.

McShurley, a Republican, last week filed a formal ethics grievance against McKinney, a Democrat, with the Indiana Supreme Court's disciplinary commission alleging he deceived local courts while handling forfeiture cases involving thousands of dollars in money and assets seized from drug dealers.

In doing so, McShurley alleged, McKinney diverted money toward the Muncie-Delaware County Drug Task Force that rightfully belonged to the City of Muncie general fund.

"I believe the city is entitled to reimbursement and has never received it," McShurley said Tuesday.

McKinney, however, denied he or anyone else in the Delaware County prosecutor's office did anything wrong, calling the grievance a political assassination attempt.

McKinney declined to talk about specific allegations, saying he had not seen the grievance as of Tuesday. * * *

McShurley's grievance centers around McKinney's years as a deputy prosecutor, from the late 1990s through 2006, when he was in charge of the drug forfeiture process in Delaware County.

McKinney, as prosecutor, has the authority to file lawsuits against drug dealers seeking the forfeiture of cash, cars and other property that might have been the end result of an illegal operation.

Among other purposes, profits from drug money and the auction of forfeited property should have been used to reimburse the city for costs related to the drug investigations, McShurley said.

"None were," her grievance said.

The grievance alleged that McKinney tricked the Delaware Circuit Court system into diverting all forfeiture money into a fund set up for the drug task force.

Furthermore, the grievance claims, McKinney entered into confidential agreements with drug dealers, whereupon they would voluntarily surrender seized money and assets to a Drug Task Force fund, avoiding a forfeiture lawsuit.

In an interview, McShurley said criminal charges were often dismissed as part of the agreements, which is not by itself a violation of ethics or laws.

The problem, according to the McShurley grievance, is that the agreements were not filed in courts under the scrutiny of a judge, therefore constituting fraud and a "failure of candor toward the courts."

The grievance included an agreement from 2002 where a drug defendant agreed to give over $8,631, drug scales and a cell phone.

Charges against that defendant were dismissed 19 days later.

The grievance did not say how much total money McKinney allegedly diverted away from the city and into the drug task force fund during his time as deputy prosecutor.

The 15-page complaint filed by Mayor McShurley with Don Lundberg of the Supreme Court Disciplinary Commission has been posted here by the Muncie Star-Press.

Posted by Marcia Oddi on May 28, 2008 10:17 AM
Posted to Indiana Courts

Ind. Courts - Plea deal pulled in attorney sex-attack case

Updating this ILB entry from Nov. 7, 2007, headed "New Albany lawyer charged ," Harold J. Adams of the Louisville Courier Journal reports today:

A New Albany attorney charged with sexually attacking a 16-year-old girl is scheduled to go on trial in July after a judge yesterday granted a prosecution motion to withdraw a plea agreement.
Advertisement

Anthony Wallingford is charged with sexual battery and criminal deviate conduct stemming from an April 14, 2007, incident at the girl's Elizabeth home during a social gathering. He is accused of entering the girl's bedroom and committing sex acts.

Harrison County Superior Judge Roger Davis granted the motion of Special Prosecutor David Powell to withdraw a plea bargain that would have let Wallingford, 38, avoid registering as a sex offender and spend no more than 90 days in jail.

The two sides reached and filed a plea agreement on April 8, but Powell moved to back out two weeks later when the girl and her family withdrew their support for the deal. Wallingford's attorney, James Voyles, told Davis yesterday that talks aimed at reaching a new deal are "at an impasse."

Posted by Marcia Oddi on May 28, 2008 10:16 AM
Posted to Indiana Courts

Ind. Courts - Carroll County Comet reports resolution of judges' issues today

The Carroll County Comet is a weekly paper that comes out every Wednesday. Today it has several interesting front-page stories, plus this editorial thanking the attorney who helped negotiate an agreement between the County Ciouncil and the county's two judges:

Thank you, Mr. Huffer: In the spirit of cooperation, great things can happen. All it takes is a willingness to work toward a solution with the idea that some compromising might be necessary along the way.

The agreement reached last week between the Carroll County Council and Carroll Superior Court Judge Jeffrey Smith and Circuit Court Judge Donald Currie may not be what either side really wanted, but it was deemed doable by both sides and it alleviated a mandate by the judges.

The agreement would never have happened without the intervention of Delphi attorney James Huffer. Representing the council, he negotiated the agreement with the judges. He did that at no charge to county taxpayers. He believed he could help facilitate change, and he did.

A willingness to chip in and help out and not want anything in return except the satisfaction of helping
out your county and fellow citizens is what it’s going to take to get this county moving in the right direction.

Mr. Huffer’s desire to step forward and offer his personal and professional assistance should be an example to all of us to look for ways we, too, can help make Carroll County a better place.

This ILB entry from May 23rd, reported that an agreement had been reached. The Comet has the story in today's edition, written by Jenna Buehler, staff writer intern,. It begins:

Carroll County Council met in executive session May 22 for approximately one hour to discuss potential litigation and then for ten minutes to approve an agreement with Carroll County Superior Court Judge Jeffrey Smith and Circuit Court Judge Donald Currie, to avoid a mandate. The agreement, proposed last week and adopted with minor wording changes Thursday night, was to restore in part budget reductions made by the council in April to both courts and the joint courts line items. The agreement was negotiated for the council by local attorney James Huffer.

Council members approved a resolution to thank Huffer for his effort, which resulted in no litigation with the judges and came at no legal expenses to the county for his services.

A second matter affecting the Carroll County judiciary was reported on here yesterday in the ILB, under the heading "Judicial Commission Admonishes Carroll Circuit Court Judge Currie." Today's Comet report, headed "Judge Currie receives public admonition," quotes the text of the admonition itself.

Posted by Marcia Oddi on May 28, 2008 09:31 AM
Posted to Indiana Courts

Ind. Decisions - A reminder of today's COA oral argument in Orange County casino case

This morning at 11:45 AM in the COA Courtroom, a panel of the Court of Appeals will hear oral arguments in the case of Lauth Indiana Resort & Casino, LLC v. Lost River Development. Unfortunately, the hearing will not be webcast. Check Monday's ILB entry for more information.

Posted by Marcia Oddi on May 28, 2008 07:15 AM
Posted to Upcoming Oral Arguments

Tuesday, May 27, 2008

Ind. Law - Still more on: "Booksellers incensed over sexual content law"

Updating this ILB entry from May 7th about HEA 1042, NPR's All Things Considered this afternoon had a feature by Adam Ragusea titled "Indiana Law Targets 'Explicit' Books". The blurb:

A new Indiana law — due to take effect July 1 — would force any bookstore that sold even one book that could be broadly described as "sexually explicit" to pay a $250 license fee and be classified as an "adult bookstore."

Audio for this story will be available here at approx. 7:00 p.m. ET.

Posted by Marcia Oddi on May 27, 2008 05:01 PM
Posted to Indiana Law