Thursday, July 03, 2008
Ind. Decisions - 7th Circuit decides one Indiana case today
In United Steel, Paper etc. Union v. TriMas Corp (ND Ind., Judge Springmann), a 14-page opinion, Judge Cudahy writes:
The defendant TriMas Corporation (TriMas) owns a number of heavy manufacturing plants in the Midwest. In July 2003, it signed a neutrality agreement with an organization whose name is a “mouthful”—the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (Union). In essence, TriMas agreed to cooperate with Union efforts to organize its workforce, at least within certain parameters. The agreement specified that any disputes regarding the terms of the agreement would be settled by arbitration.In 2005, the Union informed TriMas of its intention to organize the Rieke plant, a TriMas facility in Auburn, Indiana. The Union believes that the Rieke plant is a “covered workplace” subject to the provisions of the agreement requiring neutrality. TriMas, however, refused to accord neutrality to the Union. TriMas claimed that the plain language of the neutrality agreement was not controlling because the neutrality agreement had been modified by an oral side agreement. The modified agreement applied to only three or four plants, it argued, and the Rieke plant was not one of them. When the Union insisted that they submit the dispute to arbitration, TriMas again refused. It characterized the dispute as one involving the “scope” of the agreement itself and so claimed that it had no duty to submit it to arbitration.
The Union then brought this action in federal court to compel arbitration under the Labor-Management Relations Act (LMRA). See 29 U.S.C. § 185(a). The parties filed cross-motions for summary judgement, and the district court granted the Union’s motion. TriMas now appeals, claiming that the district court “ignored” the extrinsic evidence that would have established the existence of the side agreement. We believe that the district court was correct in finding that the dispute was covered by the language of the arbitration clause and in leaving consideration of the extrinsic evidence to the arbitrator.
Posted by Marcia Oddi on July 3, 2008 11:25 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
Susan Steinsdoerfer v. Master Guard (NFP) - "Although competent evidence did not support some of the hearing member’s findings, the Board nevertheless properly affirmed the hearing member’s conclusion that Steinsdoerfer failed to establish she sustained an injury arising out of and in the course of her employment with Master Guard."
NFP criminal opinions today (1):
Robert Legan v. State of Indiana (NFP)
Posted by Marcia Oddi on July 3, 2008 11:14 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Porter County prepares to start juvenile drug court
Vicki Urbanik reports in the Chesterton Tribune in a story that begins:
Porter County juvenile court officials are awaiting state approval to begin a new juvenile drug court, which will focus on treatment of offenders with substance abuse problems.With an anticipated start date of Sept. 1, the Porter County Commissioners on Tuesday approved a request from the Juvenile Probation Department for $12,819 in equipment needs for the new court.
Porter County Chief Juvenile Probation Officer Amy Beier said the juvenile drug court will be limited to 10 participants, at least initially. She noted that because this will be an entirely new program for Porter County, officials want to take the time needed to make it successful. Further, a larger drug court could require additional staff.
Only two other Indiana counties currently have juvenile drug courts. Beier commended the support from the Porter County Council, which agreed to fund a new probation officer in this year’s budget specifically for the new court.
Posted by Marcia Oddi on July 3, 2008 11:09 AM
Posted to Indiana Courts
Ind. Courts - St. Joseph Prosecutor Dvorak claims his attorneys aren't receiving comparable pay to public defenders
Pablo Ros reports today in the South Bend Tribune in a lengthy sstory - some quotes:
For most in St. Joseph County's criminal justice system, it has been everything it promised to be.A reimbursement program with the Indiana Public Defender Commission that began a year ago has funneled dollars back to county coffers while helping to strengthen the county's public defender office.
But to St. Joseph County Prosecutor Michael Dvorak, the program, which helped raise the salaries of public defenders while reducing their caseloads, has confirmed the fears he expressed last year that unless the county helped him raise the salaries of his own deputies it would create disparity.
Dvorak claims three deputy prosecutors have left his office this year because those jobs have lost competitiveness in the "attorney market." * * *
The county can expect to receive about $100,000 in excess funds from the state, according to Circuit Judge Michael Gotsch, who advises the public defender board.
The reimbursement program, which was approved by the County Council in June 2007, was supposed to give back to the county up to 40 percent of its eligible public defender expenses while helping to reduce the caseloads of overworked public defenders.
According to figures from the Indiana Public Defender Commission, it has pretty much fulfilled its promises. * * *
John Marnocha, chief judge of St. Joseph Superior Court, said things are running "a lot more efficiently" in the courtroom since the state reimbursement program took effect.
"It's helped us deal with the caseload we have," he said.
With attorneys being less "booked up" and he no longer having to fight everyone's calendar, Marnocha said, cases are being resolved in a more timely way.
Posted by Marcia Oddi on July 3, 2008 11:03 AM
Posted to Indiana Courts
Ind. Courts - Randolph County Courthouse plans still up in air
When last we wrote on this topic, it was under the heading "Search for the front of the Randolph County Courthouse continues." Today Joy Leiker reports the Muncie Star-Press:
WINCHESTER -- In response to public pressure, the Randolph County Board of Commissioners next week will once again consider a new option for its much beleaguered courthouse project.
AdvertisementDuring a special meeting 7 p.m. Wednesday, commissioners will hear from project manager Lester "Spike" Shepler Jr., who will present two new options for a courthouse annex -- in the former Marsh store on East Washington Street or in a new structure that could be built next to the Randolph County Jail.
Both of those options temporarily relieve the pressure of figuring out how to make a two-story annex, planned for the courthouse square, work. The plans on paper, in the works for two years, don't conform to zoning rules and have left the project in a stalemate.
The expansion and renovation of the existing courthouse built in 1877 remains a sore spot for Randolph County residents. It's been the subject of state and national criticism.
But next week's meeting, and the new options, show hope for residents who don't want the annex built on the courthouse square. Don Matchett owns an insurance office across the street from the courthouse, and he's never supported the annex. * * *
Commissioner Ron Chalfant, one of two board members who will leave office this year with a still-incomplete courthouse project, said his rural constituents don't want to spend millions of dollars on a courthouse renovation.
"The folks that I talk to are not in favor of spending a lot of money on this project at all," said Chalfant, who supports the idea of delaying the project even longer, January 2009 when a new board will take office. "To go ahead and push the annex (on the square) forward is a mistake."
Posted by Marcia Oddi on July 3, 2008 10:52 AM
Posted to Courts in general
Courts - More on: Linda Greenhouse points to blog that identified an error in a major SCOTUS opinion
Updating this ILB entry from yesterday, Linda Greenhouse reports today in the NY Times in a story that begins:
In a highly unusual admission of error, the Justice Department acknowledged on Wednesday that government lawyers should have known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Supreme Court of that fact while the justices were considering whether death was a constitutional punishment for the crime.“It’s true that the parties to the case missed it, but it’s our responsibility,” the department’s public affairs office said in a statement.
“We regret,” the statement said, “that the department didn’t catch the 2006 law when the case of Kennedy v. Louisiana was briefed.”
Posted by Marcia Oddi on July 3, 2008 10:30 AM
Posted to Courts in general
Courts - "Next Term: A Fatter, Faster Calendar for Supreme Court"
Tony Mauro of Legal Times writes today in a long story that begins:
The current term is history, so what's up for the Supreme Court's next term, which begins Oct. 6? More cases, heard more quickly, and possibly decided with more division among the justices than the term just ended.The Court has already granted review in enough cases to fill 43 hours of oral argument, allowing Chief Justice John Roberts Jr. to hasten the argument calendar, and making it likely that the Court will decide more cases with signed opinions after argument than this term's 67, the lowest number in more than 50 years.
The cases pose a range of tough and possibly divisive issues from religion in the public square to expletives on the public airwaves. More about those later. At a Court that changes its ways rarely and uneasily, tinkering with the calendar is as significant as the cases it will consider.
Steering the Supreme Court's doctrine in a new direction is one thing. But altering its calendar -- that's a true sign that a new chief justice has taken control of the Court. Roberts announced the change in a June 6 speech at the judicial conference of the U.S. Court of Appeals for the D.C. Circuit.
In October and November, the justices will hear three arguments a day instead of two, likely leaving fewer cases to be argued next spring -- possibly as few as one a day. By front-loading the calendar, Roberts aims to give himself and his colleagues more decisions to write and issue through the winter, alleviating the Court's usual headlong race to finish the term's work in May and June.
Posted by Marcia Oddi on July 3, 2008 08:07 AM
Posted to Courts in general
Ind. Decisions - Still more on: "Booksellers incensed over sexual content law"
As reported here yesterday in the ILB, Attorney General Carter has elected not to appeal Judge Barker's July 1st decision in the Big Hat Books case. Several papers editorialize today on the case.
The Indianapolis Star's editorial is headed "Earning an XXX rating with an anti-porn show:
Tuesday, Barker rightly tossed out a vague, sloppily written state law requiring sellers of "sexually explicit" materials to register with the secretary of state and pay a $250 fee.The Richmond Palladium-Item's editorial is headed "Good choices made to scrap ill-advised law." It concludes:A little over three years ago, the same judge upheld key parts of an Indianapolis ordinance that restricted the operations of adult bookstores. (The ruling remains under appeal).
The difference? The city ordinance was aimed essentially at curbing crime and other unsavory activities spawned by adult businesses. The state law was aimed at the words and pictures they sell, and that violates the First Amendment.
Advertised by its legislative sponsors as an answer to the very real problem of X-rated emporia dominating interstate exits and hawking their wares on giant billboards, House Enrolled Act 1042 said virtually nothing about zoning, location, hours of operation and other issues not related to free speech.
Instead, it cast a net over any and all purveyors of sex-related merchandise, meandering through "definitions" so loose that the law could be applied to classic works of art and to the places that sell and display them. The lawsuit that led to the ruling was filed by bookstores and the Indianapolis Museum of Art, which feared they'd be operating under a cloud if the statute had taken effect Tuesday as scheduled. A sweeping censorship law was not doing the state's national image a great deal of good either.
Not surprisingly, the bill's principal sponsor, Rep. Terry Goodin, D-Crothersville, says the judge got it wrong and he'll be back to try again. Implying that one is leading the battle against the forces of smut is astute politically; but in fairness, Goodin is addressing a real quality-of-life issue. His proposed solution, however, never should have become reality. Gov. Mitch Daniels' rationale for signing HEA 1042 into law -- that he had not heard complaints about it -- is likewise unreal.
There is a solution, or at least an approach, to the problems posed by adult bookstores. The solution must be local, must be focused, and is limited to offshoot effects on the order of noise, drunkenness, prostitution or underage employees or customers. These are not constitutionally protected. Nor are they matters of personal taste. Books, movies, pictures and statues, whether sold off the exit ramp or in the museum gift shop, are another story. Someone should read it to Indiana's elected leaders.
Rep. Terry Goodin, D-Crothersville, said he wrote the law to stop companies from deceiving communities with weak zoning laws. He noted one company told the southern Indiana community of Dale it planned to operate a truck stop, but instead opened an adult business.But that represents a failure of good zoning laws, not cause for an end run around First Amendment guarantees of expression.
As we noted in this space three months ago, just after Gov. Mitch Daniels sought to legitimatize with his signature this ill-conceived legislation: "We struggle with the idea of placing words or pictures on the same kind of state registry now reserved for convicted sex offenders. Words and pictures deserve wider protection."
Thanks to Judge Barker, that struggle is over.
Thanks to Attorney General Steve Carter, there will be no costly appeal, at taxpayers' expense, of the judge's ruling. Carter said Wednesday that if legislators want such a law, they could try again in the next session to enact a stronger law with language that is clearer.
Not to mention constitutional.
Posted by Marcia Oddi on July 3, 2008 07:26 AM
Posted to Ind Fed D.Ct. Decisions
Law - "Ave Maria School of Law Dodges Bullet, Retains Accreditation"
For those following news of the Ave Maria Law School (which the ILB covered for a time last year because of brief speculation it was moving to Fort Wayne - see the last line of this June 4th entry for links), the WSJ Law Blog had this entry yesterday.
Posted by Marcia Oddi on July 3, 2008 07:14 AM
Posted to General Law Related
Wednesday, July 02, 2008
Environment - Bartholomew County hog farmer to pay fine, close operation
Kirk Johannesen has this brief story in the Columbus Republic:
A Bartholomew County hog farmer agreed to close his confined feeding operation and pay a $7,750 fine for environmental violations, according to Indiana Department of Environmental Management.Ron Trotter, a Bartholomew County Board of Zoning Appeals member, and president of Trotter Farms, had been negotiating with IDEM after being fined $32,500 for a manure spill that the state agency said harmed state waterways.
"What we agreed to was a business decision. We couldn't afford to fight it anymore," said Barry Trotter, Ron's son, who works on the farm.
Posted by Marcia Oddi on July 2, 2008 04:40 PM
Posted to Environment
Law - Indiana-born civil rights lawyer Thomas Atkins dies
In an article today in the South Bend Tribune, Laureen Fagan, writes:
Elkhart native and nationally prominent civil rights lawyer Thomas I. Atkins used to say that power was colorless.The story includes a photo:"It's like water. You can drink it or you can drown in it," he'd say.
And when Atkins died Friday at age 69, that was one of the memorable quotes used by the Boston Globe to honor the man who came to their city to attend Harvard Law School, stayed to become the first black to hold a Massachusetts Cabinet post, was president of the city's NAACP chapter -- and argued the landmark Boston school desegregation case.
A Tribune file photo taken from the IU yearbook shows Atkins at his desk in 1961 after he became the student body's first black president, also a first for any Big Ten school.I remember, I was an IU undergrad at the time.
The Boston Globe had a long obituary June 29th that began:
Thomas I. Atkins, a hard-driving champion of racial justice who rose from rural Indiana to become Boston's first black at-large city councilor and faced off against opponents of busing in the 1970s as an NAACP leader, has died at 69.The Globe published this editorial on July 1. Some quotes:The Harvard Law School graduate knew that access to education had enabled his rise and fought to secure opportunities for others, first in Boston and later in desegregation cases across the country.
"He was clearly the most brilliant and insightful civil rights lawyer, both in and beyond Boston, to take on the challenges of school desegregation," said Ted Landsmark, who worked with Mr. Atkins in the late 1970s as a lawyer at Mr. Atkins's Boston law firm, Atkins and Brown. "He was a great humanist."
Mr. Atkins died Friday night at a nursing home in Brooklyn, N.Y., after struggling for nearly two decades with the degenerative muscular disease Amyotrophic Lateral Sclerosis, or Lou Gehrig's disease.
He was a humanist, but he also had a steely resolve. As a central figure in the city during a turbulent era, he received repeated death threats. He fortified his Roxbury home to protect his family, running chicken wire over windows to block Molotov cocktails and installing spigots throughout the seven- bedroom house to connect hoses for fighting fires, said his son Thomas Jr.
THOUGH HE was a native of Elkhart, Ind., Thomas I. Atkins, a civil rights lawyer who combined sharp intellect and political muscle, mastered the art of Boston politics. Atkins, the city's first black at-large city councilor, died Friday at age 69.Atkins's election in 1967 was, in part, a function of the increase in the city's black population, which had climbed to about 90,000 that year. But he also ran well in white working-class neighborhoods where he reached out for votes in local barrooms considered hostile territory by many minorities.
Atkins could be brash, even pushing his way into Harvard Law School long after the application deadline. But there was always an analytical underpinning to his actions, whether fighting for school desegregation nationwide in his role as general counsel for the NAACP or arguing on behalf of Boston neighborhoods threatened by short-sighted urban renewal policies.
Boston has seen more fiery civil rights leaders than Atkins. But none smarter or more strategic.
Posted by Marcia Oddi on July 2, 2008 04:09 PM
Posted to General Law Related
Ind. Decisions - More on: "Booksellers incensed over sexual content law"
Re yesterday's federal court opinion in the case of Big Hat Books v. Prosecutors: Adams, et al - see ILB entries here and here - Attorney General Steve Carter has issued a statement this afternoon:
This week’s ruling by a federal district court judge striking down a new law that would have required retailers selling sexually explicit material to register with the state will not be appealed announced Indiana Attorney General Steve Carter today.“The next general assembly session will provide legislators with an opportunity to explore ways to address the weaknesses of the statute,” Carter said. “The attorney general’s office is available to consult with lawmakers if they choose to pursue revised language to meet their objectives.”
Posted by Marcia Oddi on July 2, 2008 03:04 PM
Posted to Ind Fed D.Ct. Decisions
Courts - Linda Greenhouse points to blog that identified an error in a major SCOTUS opinion
In Kennedy v. Louisiana, issued last week, the Court prohibited states from imposing the death penalty for child rape. Linda Greenhouse writes today in the NY Times:
When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.Here is the entry in Colonel Sullivan's blog. It is titled "The Supremes Dis the Military Justice System." The entry concludes:This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.
It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.
A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were in the National Defense Authorization Act that year. President Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.Anyone in the federal government — or anywhere else, for that matter — who knew about these developments did not tell the court. Not one of the 10 briefs filed in the case, Kennedy v. Louisiana, mentioned it. The Office of the Solicitor General, which represents the federal government in the Supreme Court, did not even file a brief, evidently having concluded that the federal government had no stake in whether Louisiana’s death penalty for child rape was constitutional.
The provision was the subject of a post over the weekend on the blog run by Dwight Sullivan, a colonel in the Marine Corps Reserve who now works for the Air Force as a civilian defense lawyer handling death penalty appeals.
Mr. Sullivan was reading the Supreme Court’s decision on a plane and was surprised to see no mention of the military statute. “We’re not talking about ancient history,” he said in an interview. “This happened in 2006.” [emphasis added]
Many years ago, Professor Schlueter gave a Hodson lecture he called, "Military Justice for the 1990's -- A Legal System Looking for Respect." See 133 Mil. L. Rev. 1 (1991). If the Kennedy Court's apparent unawareness of the military justice system is any guide, 17 years after Professor Schlueter's lecture, military justice remains the Rodney Dangerfield of legal systems.
Posted by Marcia Oddi on July 2, 2008 02:47 PM
Posted to Courts in general
Ind. Decisions - 7th Circuit issues one Indiana opinion today
In Nick's Cigarette City, Inc. v. U.S. (ND Ind., Judge Lozano), a 17-page opinion, Judge Manion writes:
Nick’s Cigarette City, Inc. (“Cigarette City”) brought this action in the United States District Court for the Northern District of Indiana. It sought a refund of federal corporate income taxes that it had paid for the taxable years of 1997 and 1998. The district court concluded that it lacked jurisdiction and dismissed the complaint. For the reasons set forth in this opinion, we affirm the judgment of the district court.
Posted by Marcia Oddi on July 2, 2008 02:37 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Courts - "Division of State Court Administration Seeks Director of Appellate Court Information Technology"
The Courts Site has posted this job notice. A quote:
The Indiana Supreme Court Division of State Court Administration is seeking a Director of Appellate Court Technology to provide the Supreme Court, Court of Appeals, and Tax Court, and their agencies with pro-active planning and forward-looking technology solutions. The Director will oversee a staff of 7 and will be responsible for managing existing and future IT systems, assessing user needs, recommending improvements, developing requests for proposals, managing system acquisitions, and implementing deployment of new technologies.This is good news. Two thoughts:
First, hopefully the phrase "assessing user needs" includes those of us users on the "outside" who have a continual need to access at a minimum the opinions and the dockets.
Second, hopefully the phrase "recommending improvements" will encompass soliciting such recommendations from those of us on the outside.
Posted by Marcia Oddi on July 2, 2008 12:43 PM
Posted to Indiana Courts
Ind. Decisions - Court of Appeals issues 3 today (and 17 NFP)
For publication opinions today (3):
In Indiana Bureau of Motor Vehicles and State of Indiana v. Brent Orange, a 7-page opinion, Judge Kirsch writes:
Intervenor, the Indiana Bureau of Motor Vehicles (the “BMV”), appeals the trial court’s denial of its motion to correct error holding that Brent Orange (“Orange”) was entitled to his plea-negotiated probationary driving privileges after Orange, who held a commercial driver’s license (“CDL”), was convicted of operating a noncommercial vehicle while intoxicated (“OWI”). The issue before us is whether Indiana law prohibits probationary driving privileges for a driver who holds a CDL and is convicted of OWI while driving a noncommercial vehicle. We affirm.In Safe Auto Ins. Co. v. Enterprise Leasing Co. of Indianapolis, Inc., et al. , an 8-page opinion, Judge Mathias writes:
After a policyholder was involved in a automobile accident in Virginia while driving a rental car owned by Enterprise Leasing (“Enterprise”), Safe Auto Insurance Company (“Safe Auto”) filed a complaint for declaratory judgment in Adams Circuit Court arguing its policyholder was not driving a covered vehicle, and therefore, there was no coverage under the Safe Auto policy. Enterprise then moved for summary judgment asserting that Safe Auto’s policy language excluding coverage for leased vehicles is void because it is contrary to Indiana Code section 27-8-9-9. The trial court agreed and entered summary judgment in favor of Enterprise. Safe Auto appeals and argues that there is no conflict between the statute and its policy provision.In Thomas K. Hupfer v. Mary and Ernest Miller , a 6-page opinion, Judge Mathias writes:We conclude that while Safe Auto’s extraordinarily limited coverage for leased vehicles is unusual at the very least, this limited coverage is not in conflict with state statute. Accordingly, the trial court erred when it granted Enterprise’s motion for summary judgment and we reverse and remand for proceedings consistent with this opinion. * * *
While we might be persuaded by Enterprise’s public policy argument, that argument is more properly made to the General Assembly. “[T]he purpose of the Financial Responsibility Act is simply ‘to assure no more than the availability of the statutory minimum amount of coverage.’” Am. Family Ins. Co. v. Globe Am. Cas. Co., 774 N.E.2d 932, 939 (Ind. Ct. App. 2002) (citation omitted), trans. denied. Safe Auto’s policy provides coverage for Harrison’s vehicle and a temporary replacement vehicle in the event that his vehicle is being serviced or repaired, or has been stolen or destroyed. Moreover, insureds have a duty to read and to know the contents of their insurance policies. See Anderson Mattress Co., Inc. v. First State Ins. Co., 617 N.E.2d 932, 939 (Ind. Ct. App. 1993). Contrary to Enterprise’s argument, there is no law in Indiana requiring insurance companies to provide coverage for vehicles leased by their insureds for any reason and in any circumstance. Finally, it is important to note that Harrison admitted that he did not expect his Safe Auto policy to provide coverage for the Enterprise truck, yet he did not purchase Enterprise’s Supplemental Liability coverage.
For all of these reasons, we conclude that the trial court erred when it granted Enterprise’s motion for summary judgment. We therefore reverse the trial court’s judgment and remand for proceedings consistent with this opinion. Reversed and remanded for proceedings consistent with this opinion.
Mary D. Miller (“Miller”) prevailed on a claim filed in Vanderburgh Superior Court for medical malpractice against Thomas K. Hupfer (“Hupfer”). She filed a motion for prejudgment interest, which the trial court granted. Hupfer appeals and argues that the trial court abused its discretion when it awarded prejudgment interest to Miller. We affirm.NFP civil opinions today (5):
Term. of Parent-Child Rel. of J.S.; and L.S. and E.S. v. Dept. of Child Svcs. of Cass Co. (NFP)
Sheila Skobel v. Douglas Shaw d/b/a Doug's Welding & Gate Shop (NFP) - "Finding that Sheila is not bound by the prior litigation because she was not a party and the issue of her liability was not fully litigated and finding multiple issues of fact, we reverse and remand for further proceedings."
Michael Chatwell v. Dave's Automotive (NFP) - "Specifically, Chatwell argues that the court clearly erred by failing to properly consider his submitted evidence. Concluding that the small claims court’s judgment is not clearly erroneous, we affirm."
Kathleen A. Grothe v. Young Park (NFP) - "The evidence must support the findings and the findings must support the judgment. Hyde, 751 N.E.2d at 765. Here, they do not. The inconsistencies between the trial court’s findings and its conclusions render the trial court’s decision clearly erroneous. They also make appellate review impossible. We vacate the trial court’s judgment and remand for entry of new findings, conclusions and judgment consistent with this opinion and consistent with each other. In its entry, the trial court shall give due consideration to the contributions of Kathleen of her pre-marital assets and post-marital earnings. Vacated and remanded."
NFP criminal opinions today (12):
Tomika Johnson v. State of Indiana (NFP)
Marzono R. Shelly v. State of Indiana (NFP)
Johnny P. Ford v. State of Indiana (NFP)
Romie L. Jackson v. State of Indiana (NFP)
Donald Dixon v. State of Indiana (NFP)
Richard Williams v. State of Indiana (NFP)
Corey D. Tyner v. State of Indiana (NFP)
Thomas Pierce, III v. State of Indiana (NFP)
Kelly S. Craig v. State of Indiana (NFP)
Michael Benson v. State of Indiana (NFP)
Brandy Strader v. State of Indiana (NFP)
Willie Erving Taylor v. State of Indiana (NFP)
Posted by Marcia Oddi on July 2, 2008 11:08 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "Haughee's appeals all are denied"
Two new stories today on former Lake County deputy prosecutor Michael B. Haughee (see list of earlier ILB entries).
James D. Wolf Jr.'s Gary Post Tribune report begins:
VALPARAISO -- A Porter County Judge denied all the motions that a former Lake County prosecutor and Hebron council member filed as part of his appeal on a sexual assault conviction.Bob Kasarda's story in the NWI Times begins:Judge Mary Harper said little Tuesday before denying the motions that Michael B. Haughee, 56, filed in April.
Harper said the court had addressed most of Haughee's concerns before the January trial where he was found guilty of sexual battery, criminal confinement and interference with the reporting of a crime in regard to an attack on a woman in a wheelchair.
Haughee has been representing himself in the appeals process, which includes motions for bond while he is working on his case.
VALPARAISO | Former Hebron Town Council President Michael Haughee failed Tuesday to convince a judge to throw out his sexual assault conviction.Haughee, who is currently serving a one-year term at the county jail, argued in part that the woman accusing him of the attack was under the influence of 26 different prescription medications when she testified against him.
Posted by Marcia Oddi on July 2, 2008 10:48 AM
Posted to Indiana Courts
Ind. Law - More on: Hoosiers may apply for gun permits online
Updating yesterday's ILB entry referencing a story from the Fort Wayne Journal Gazette, the Journal Gazette has posted what appears to be a supplemental story today, this one by Becky Manley, reporting that:
After applicants complete the online form, they will still need to visit their local law enforcement agency to pay fees and be fingerprinted, Berkey said. Applicants also will have to provide an identification number obtained during the online application process and provide an ID.Right now the online application is being tested in two small counties. Instead of going to storefronts that advertise "Gun Permits Typed While You Wait," it appears that the procedure, when implemented in a county, will allow applicants to complete that step online.The online process will save the state data-entry time because employees currently enter information from handwritten applications, Berkey said. It also eliminates problems caused by illegible handwriting and missing information.
Posted by Marcia Oddi on July 2, 2008 08:50 AM
Posted to Indiana Law
Ind. Decisions - Stories today on: "Booksellers incensed over sexual content law"
Francesca Jarosz of the Indianapolis Star reports today on yesterday's opinion by federal district judge Sarah Evans Barker in the case of Big Hat Books v. Prosecutors: Adams, et al. - see yesterday's ILB summary and links to the opinion and HEA 1042. From the story:
The law would have required anyone who intended to sell sexually explicit materials -- which plaintiffs say could have included classic literature, as well as pornography -- to register with Indiana's secretary of state, pay a $250 fee and submit a statement with details about the materials. It would have applied to new businesses and existing ones that relocated or began selling the materials after June 30.Reporter Ken Kusmer writes for the AP:"The problem is, sexually explicit materials was defined so broadly," said Ken Falk, legal director for the ACLU of Indiana. "We're not talking about quadruple-X videos. We're talking about 'Lolita' and 'The Joy of Sex' . . . great works of art."
The bill's author, Rep. Terry Goodin, D-Crothersville, said the intent was not to stifle free speech but to help rural communities where weak zoning ordinances allow pornographic establishments to move in. Under the law, the secretary of state would have passed registration information to local officials, who then could more closely monitor the businesses.
Goodin said Barker "totally interpreted (the law) wrong" and that it was perfectly clear that the law targeted pornographic businesses. * * *
Goodin said he didn't know whether the decision would be appealed and planned to consult with the Indiana attorney general's office, which defended the case.
"I'm ready to start all over," he said. "I'm just going to have to figure out a way to tighten (the law) up."
Ruling on the day the law took effect, U.S. District Judge Sarah Evans Barker concluded it was vague, too broad and potentially applicable against "unquestionably lawful, nonobscene, nonpornographic materials being sold to adults.""A romance novel sold at a drugstore, a magazine offering sex advice in a grocery store checkout line, an R-rated DVD sold by a video rental shop, a collection of old Playboy magazines sold by a widow at a garage sale ... would appear to necessitate registration under the statute," Barker wrote.
The author of the legislation, Rep. Terry Goodin, D-Crothersville, said he might take it back to lawmakers at the 2009 session for revision.
"I've got pencil in hand," Goodin said. "I'm ready to go. I'm not going to let this sleeping dog lie."
Posted by Marcia Oddi on July 2, 2008 08:38 AM
Posted to Ind Fed D.Ct. Decisions
Tuesday, July 01, 2008
Ind. Courts - More on: "United States Senate Confirms William T. Lawrence as District Judge"
Updating this ILB entry from June 27, the USDC for the Southern District of Indiana has posted this press release that begins:
The United States District Court for the Southern District of Indiana is pleased to announce that on Tuesday, July 1, 2008, the Hon. William T. Lawrence took the oath to become a United States District Judge. Chief Judge David F. Hamilton administered the oath at noon in Judge Lawrence’s courtroom in the Birch Bayh Federal Building and United States Courthouse in Indianapolis. Judge Lawrence’s wife and a number of court staff attended the swearing in, which took place one day after President Bush signed Judge Lawrence’s commission.
Posted by Marcia Oddi on July 1, 2008 05:40 PM
Posted to Indiana Courts
Ind. Decisions - Yet more on: "Booksellers incensed over sexual content law"
Today federal Judge Sarah Evans Barker, in a 31-page opinion, ruled:
For the reasons detailed in this entry, Plaintiffs’ facial challenge to HEA 1042 is well-founded. We hold that HEA 1042 unduly burdens First Amendment rights, and is unconstitutionally vague and overbroad. Therefore, Plaintiffs’ Motion for Summary Judgment is GRANTED. IT IS SO ORDERED.So, another 2008 law found unconstitutional.
The ILB has had nearly a half-dozen earlier entries on HEA 1042. Access them here.
Here is today's opinion in Big Hat Books v. Prosecutors: Adams, et al. Here are some quotes from Judge Barker's opinion:
In this litigation, brought against the prosecutors of each of Indiana’s ninety-two counties, Plaintiffs challenge the constitutionality of I[HEA 1042], which is to go into effect on July 1, 2008, requiring that persons who intend to offer for sale or sell sexually explicit materials must register with Indiana’s secretary of state, pay a fee, and provide a statement detailing the types of materials intended to be offered for sale. Plaintiffs assert that the statute is not narrowly tailored to meet a compelling government interest, that it unlawfully imposes a content-based fee or tax on First Amendment rights, and that it is fatally overbroad and vague. Defendants dispute Plaintiffs’ contentions regarding the constitutionality of HEA 1042, asserting that the statute is a constitutional, reasonable regulation of speech, and is not unconstitutionally vague or overbroad. * * *Defendants assert that Plaintiffs have not properly brought (and lack standing to bring) a facial challenge to the statute, in accordance with United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”); Washington State Grange v. Washington State Republican Party, 128 S.Ct. 1184, 1190-91 (2008). * * *
Accordingly, we hold that Plaintiffs have standing to facially challenge HEA 1042 in its entirety.
Plaintiffs challenge the constitutionality of HEA 1042 first on the grounds that it is a content-based regulation of protected expression that fails to meet the requisite standard of strict scrutiny. Defendants assert that an intermediate level of judicial scrutiny is proper here, given the “zoning-like” aims of the statute. * * *
It is clear to us that HEA 1042 is precisely the sort of content-based restriction necessitating examination through the lens of strict scrutiny. As Plaintiffs note, courts have consistently found statutes regulating sexually explicit speech to be content-based restrictions. * * * Defendants’ argument that the statute is akin to a zoning ordinance, and therefore subject to an intermediate degree of scrutiny, is unsupported both factually and by controlling precedent. * * *
Our next inquiry, then, becomes whether the statute is narrowly tailored to serve a compelling governmental interest. * * *
The new law, by explicitly encompassing sales of materials to adults, does not embody the narrow tailoring the Constitution requires when First Amendment activity is so burdened. * * *
Plaintiffs also challenge the statute on the grounds that it operates as an unconstitutional fee or tax on the exercise of constitutional rights. * * *
Defendants assert that the $250.00 fee for registration under HEA 1042, though admittedly higher than any other fee charged for registration of various sorts with the Indiana secretary of state, is justified as a means of covering the costs of the statute’s implementation. * * *
Defendants have provided not a shred of evidence suggesting that the $250.00 fee is proportional to the amount of work required by the secretary of state’s office resulting from a filing, and we cannot fathom how “notification of local officials” could justify such a fee. * * *
Plaintiffs also challenge the statute as an unconstitutional permit requirement for the exercise of protected speech, relying upon the Supreme Court’s pronouncement in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 166 (2002), that “[e]ven if the issuance of permits . . . is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in [protected] speech constitutes a dramatic departure from our national heritage and constitutional tradition.” * * *
We therefore conclude that the statute fails constitutional scrutiny on this basis as well. * * *
A statute is unconstitutionally vague if it “fails to define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and it fails to establish standards to permit enforcement in a nonarbitrary, nondiscriminatory manner.” * * *
Plaintiffs assert that several key terms in the statute are inherently vague or defined in a way that fails to provide fair notice, and will thus cause a chilling effect on otherwise lawful conduct. Among these are the requirement that registrants “provide a statement detailing” the types of sexually explicit materials intended to be offered for sale. HEA No. 1042 (to be codified at IC § 23-1-55-2). Plaintiffs object that the statute provides no explanation or instructions regarding the level of detail required in such a statement, or whether (and how often) it needs to be updated when a vendor’s inventory changes.
Defendants admit that the statute suffers from “poor drafting,” but assert that it is not unconstitutionally vague. * * *
There can be no doubt that compliance with such a vague mandate will be unduly burdensome, will have a chilling effect on expression, and will fail to provide ordinary people with a reasonable degree of notice as to the law’s requirements; the Constitution demands no less. * * *
We agree with Plaintiffs that a fair reading of the statute leaves entirely unclear the matter of to whom it applies. Defendants’ argument – that the statute requires only one registration per business per location – is not set out as such in the language of the statute. Inadequate notice of these requirements, the violation of which gives rise to possible criminal sanctions, renders the law unconstitutionally vague. In addition, the likelihood of confusion and the resultant self-censorship on the part of merchants is very high, creating a chilling effect on otherwise free speech. * * *
Plaintiffs’ final argument is that HEA 1042 is substantially overbroad because it burdens a vast amount of expression protected by the First Amendment in an attempt to meet its regulatory aim. * * *
Clearly, a vast array of merchants and materials is implicated by the reach of this statute as written. A romance novel sold at a drugstore, a magazine offering sex advice in a grocery store checkout line, an R-rated DVD sold by a video rental shop, a collection of old Playboy magazines sold by a widow at a garage sale – all incidents of unquestionably lawful, nonobscene, nonpornographic materials being sold to adults – would appear to necessitate registration under the statute. Such a broad reach is, without question, constitutionally disproportionate to the stated aim of the statute to provide a community “heads-up” upon the opening of “adult bookstore-type businesses.”
Conclusion. For the reasons detailed in this entry, Plaintiffs’ facial challenge to HEA 1042 is well-founded. We hold that HEA 1042 unduly burdens First Amendment rights, and is unconstitutionally vague and overbroad.
Posted by Marcia Oddi on July 1, 2008 04:33 PM
Posted to Ind Fed D.Ct. Decisions
Ind. Decisions - 7th Circuit decides one Indiana case today
In U.S. v. Antone C. Harris (SD Ind., Judge Barker), a 17-page opinion, Judge Williams writes:
Harris argues that the district court should not have reconsidered whether the affidavit contained false statements under the law of the case doctrine. Because the law of the case doctrine does not compel a district court to ignore evidence presented at a hearing that clarifies a prior misunderstanding, we find no error in the district court’s decision to reconsider one of its findings. We also find no error in the district court’s decision not to compel the government to disclose the identity of the confidential informant in this case, as the district court was entitled to credit the testimony of Detective Forrest that the confidential informant existed, and Harris has made no showing that such disclosure was essential to his defense. Therefore, we affirm the decision of the district court.
Posted by Marcia Oddi on July 1, 2008 01:30 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Supreme Court issues one today
In Anthony A. Hopkins v. State of Indiana, a 4-page, 5-0 opinion, Chief Justice Shepard writes:
Almost a decade ago, appellant Anthony Hopkins stood trial by jury, and the jury found him guilty of two counts of attempted murder and other offenses. Before proceeding with an habitual offender allegation, he and his lawyer announced they wished to waive jury and acknowledge the habitual. He has now claimed that this was an unknowing and unintelligent “guilty plea.” The post-conviction court denied relief, and we affirm. * * *The burden of one whose petition for post-conviction relief has been denied is a substantial one. This Court will affirm the denial unless “the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002). Hopkins has not overcome this burden. The post-conviction court’s determination that what occurred was a stipulation rather than a plea should stand.
Posted by Marcia Oddi on July 1, 2008 01:22 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
Debra Byrum v. Bookout Properties, Inc. (NFP) - "Debra Byrum appeals the trial court’s order denying her request for unpaid commissions earned before Bookout Properties terminated her employment. Specifically, Byrum maintains that the trial court erred as a matter of law by concluding that her written commission schedule did not satisfy the “signed and written” requirement of the Statute of Frauds, specifically, Indiana Code § 32-21-1-10. Concluding that her written commission schedule satisfies Indiana Code § 32-21-1-10, we reverse and remand."
NFP criminal opinions today (2):
James L. Holliday v. State of Indiana (NFP)
Brian J. Dear v. State of Indiana (NFP)
Posted by Marcia Oddi on July 1, 2008 01:15 PM
Posted to Ind. App.Ct. Decisions
Environment - More on: Rhode Island's Massive Lead Paint Tort Case
Overturned! That is the word this afternoon.
Susan A. Baird of the Providence Business News reports in a long story that begins:
PROVIDENCE – In a unanimous ruling this morning, the R.I. Supreme Court rejected the landmark decision against former lead-pigment makers, holding that public-nuisance law had been misapplied. “This Court is bound by the law and can provide justice only to the extent that the law allows,” the justices wrote.Here is the 83-page opinion in Rhode Id. v. Lead Industries. See also the "summary" of the opinion on this RI Judiciary page.In February 2006, a R.I. Superior Court jury found that lead paint that had accumulated on Rhode Island homes and public buildings in the decades before such pigments were banned constituted a public nuisance, and that Millennium Holdings LLC, NL Industries Inc. (formerly National Lead Co.) and The Sherwin-Williams Co. “were liable for causing or substantially contributing” to that nuisance and should be held responsible for the cost of abating the risk. A fourth defendant, Atlantic Richfield Co. (ARCO) was cleared of liability.
Here is the AP coverage.
For background, start with this ILB entry from May 26, 2008.
See also the Providence Journal's breaking news blog.
Posted by Marcia Oddi on July 1, 2008 01:05 PM
Posted to Environment
Ind. Law - Hoosiers may apply for gun permits online
That from this story this morning by Anne Gregory of the Fort Wayne Journal Gazette. Some quotes:
Residents of Wells and Miami counties are the first people in Indiana who may apply for a firearm permit online.Here is the online application. Here is a State Police FAQ on Firearms, including information on the lifetime handgun license.This is a test of a Web-based computer application system anticipated to be available for statewide use by early 2009, according to Tuesday’s announcement from the Indiana State Police.
The state police, the Indiana Sheriff’s Association and the Indiana Association of Chiefs of Police approved developing the electronic application process. * * *
The new program began Tuesday.
Here’s how it works:
• After completing the online form the applicant receives a control number, printed from their computer.
• The applicant presents this number and identification to their local police chief or the county sheriff, as determined by the applicant’s legal address.
• By state law all handgun permits are ultimately approved or denied, for legal cause, by the superintendent of the Indiana State Police.
NOTE: See this update from July 2.
Posted by Marcia Oddi on July 1, 2008 10:41 AM
Posted to Indiana Law
Ind. Courts - Three justices and at least one appellate judge up for retention this year
In 2006 one Supreme Court justice, Frank Sullivan Jr., and five Court of Appeals judges, James S. Kirsch, Terry A. Crone, Ezra H. Friedlander, Edward W. Najam Jr., and Patricia A. Riley, were up for retention for new 10-year terms. The ILB constructed this website, Resources for the 2006 Indiana Appellate Judicial Retention Election, to aid voters in finding out information about the jurists whose names would be on the ballot, via the question "Shall ___ be retained in office?”
Under IC 33-25-2-2, relating to appeals court judges:
A judge who wishes to be retained in office shall file a statement with the secretary of state, not later than noon July 15 of the year in which the question of retention of the judge is to be placed on the general election ballot, indicating that the judge wishes to have the question of the judge's retention placed on the ballot.Presumably most have filed already, as in 2006 incumbents filed to seek retention as early as Feb. 1, 2006.
Who must stand for retention in 2008, if they wish to remain in office? Three of the five members of the Supreme Court: Chief Justice Randall T. Shepard, Justice Brent E. Dickson, and Justice Theodore R. Boehm. At least one member of the Court of Appeals, Judge Carr L. Darden.
The ILB intends to expand its coverage for 2008. Let me know if you have suggestions.
[More] The law creating the Indiana Tax Court provides at IC 33-26-2-3:
(a) The initial term of office of a person appointed to serve as the judge of the tax court begins on the effective date of that appointment and ends on the date of the next general election that follows the expiration of two (2) years from the effective date of that appointment.Judge Thomas G. Fisher is up for retention this year.
(b) The tax court judge may be approved or rejected for an additional term or terms in the same manner as are the justices of the supreme court under IC 33-24-2.
Posted by Marcia Oddi on July 1, 2008 08:58 AM
Posted to Indiana Courts
Ind. Gov't. - "Like Kelvin Sampson before him, Rick Greenspan agreed not to sue Indiana University in announcing his resignation"
Mike Alesia, who has had a number of good stories covering the legal woes of Indiana University sports (see ILB list here), reports today on "IU's lame-duck athletic director" Rick Greenspan and his separation agreement. Some quotes:
Like Kelvin Sampson before him, Rick Greenspan agreed not to sue Indiana University in announcing his resignation.The Star has posted a copy of Greenspan's 5-page resignation agreement. This joins Coach Sampson's 11-page separation agreement, posted Feb. 25th.Yet it's another clause in Greenspan's agreement, released Monday, that stood out as unique from previous athletic department resignations. The IU athletic director "retains rights to any book he may wish to write and publish."
Greenspan's resignation, effective at the end of the calendar year, was announced Thursday. At the time, IU also disclosed his $441,000 in severance payments.
The resignation announcement came almost immediately after IU released news of the NCAA infractions committee adding a "failure to monitor" charge to allegations of misconduct in the men's basketball program. * * *
In Greenspan's employment contract, there is a paragraph about not disclosing confidential information "during or following employment by the university." It's unclear if that has any relation to the clause about Greenspan's "rights to any book he may wish to write."
Greenspan's employment contract listed several responsibilities, among them "assuring compliance by the Department's coaches, staff and student athletes with NCAA . . . rules, regulations and bylaws."
The contract said he could have been fired "for cause" for not performing his responsibilities. In a "for cause" firing, the university would have owed him nothing.
But specific examples of grounds for a "for cause" firing said only that Greenspan had to use his "best efforts to maintain an environment" in which coaches and employees comply with NCAA rules.
If Greenspan had been fired "without cause," IU would have owed him two years' salary, or $600,000. * * *
The $441,000 IU agreed to pay Greenspan comes on top of the $750,000 buyout for Sampson and the $66,000 buyout for Senderoff. That kind of spending has drawn the ire of many IU fans.
Posted by Marcia Oddi on July 1, 2008 08:44 AM
Posted to Indiana Government
Ind. Courts - More on "Accused officers' drugs cases at risk"
This story, first posted by the Indianapolis Star online yesterday morning (see ILB entry here), is now in an expanded version the main front-page story in today's paper. Reported by Vic Ryckaert and Jon Murray, the story begins:
The arrests of four Indianapolis police officers are forcing the dismissals of more than two dozen pending cases and could cause drug-crime convictions in other cases to be overturned on appeal, prosecutors said Monday.As of today, the Marion County prosecutor's office expects to have dismissed 20 cases investigated by former narcotics officers Robert Long and Jason Edwards, officials said.
"These officers were in this court several weeks ago testifying against defendants," Prosecutor Carl Brizzi said Monday. "Now they are defendants."
Deputy Prosecutor Lawrence Brodeur, the chief of narcotics and gun cases, said he was evaluating 12 other cases and would consider the effect on even more in coming days.
Posted by Marcia Oddi on July 1, 2008 08:37 AM
Posted to Indiana Courts
Ind. Decisions - "Ex-trustee absolved in Steuben sex assault"
The Supreme Court's opinion in Debra A. Barnett v. Camille Clark, Trustee of Pleasant Township, decided last Friday (see ILB entry here), is the subject today of a story by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:
Former Pleasant Township Trustee Camelia Clark cannot be held legally responsible for the sexual battery committed by one of her employees – and husband – the Indiana Supreme Court ruled.The justices issued a decision late Friday, about a month after hearing arguments that upheld the original finding of the trial court, which dismissed the case in favor of the trustee.
Donald Clark pleaded guilty in 2005 to sexual battery and battery involving two women who came to the trustee’s office seeking temporary financial assistance. At the time, he was the deputy trustee and his wife, Camelia Clark, was trustee.
The former chairman of the Republican Party in Steuben County and the 4th District received a two-year prison sentence and has since been released. * * *
At his sentencing, police testified they had investigated seven cases involving Donald Clark and female township residents going back to 1979.
But the trial court granted summary judgment in favor of his wife.
The Indiana Court of Appeals overturned the ruling in December 2007, finding that an employer can be liable for the criminal acts of an employee if the employee’s actions were at least for a time authorized.
The Supreme Court, though, ruled unanimously that the actions of the deputy trustee were not sufficiently associated with his employment duties to fall within the scope of employment.
Attorneys for Barnett argued the case fell within a narrow exception, but the justices disagreed.
“His alleged acts of confining, sexually touching, and raping the plaintiff were not an extension of authorized physical contact. Such acts were not incidental to nor sufficiently associated with the deputy trustee’s authorized duties,” the decision said. “They did not further his employer’s business. And they were not motivated to any extent by his employer’s interests.”
Posted by Marcia Oddi on July 1, 2008 08:16 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Gov't. - More on: Indianapolis Public Schools asks court to rule on vote
Updating this ILB entry from June 13th, Andy Gammill of the Indianapolis Star reports today: "2 get OK to take seats on IPS board: Judge says voters' will should stand; big vote on construction expected today."
A Marion County judge cleared the way Monday for two candidates to take seats on the Indianapolis Public School Board, resolving a legal dilemma just hours before a vote on $278 million in building projects.With many thanks to a reader, here is Marion Superior Court Judge John Hanley's 15-page, June 30, 2008 opinion in the case of Board of School Comm. v. Ind. State Bd. of Education, et al.Michael R. Cohen and Elizabeth M. Gore are scheduled to be sworn in as the board's new at-large members tonight after Judge John Hanley ruled they could take their seats today despite a state law that appeared to disqualify at least one.
State law says the board's two at-large members cannot live in the same part of the district, as Cohen and Gore do. * * *
Incumbents Clarke C. Campbell and Leroy Robinson had argued that they should remain in their seats until properly qualified candidates were selected -- in several years.
Hanley ruled that the state law limiting the number of board members from a district is discretionary rather than mandatory and that conflicts over elections should err in favor of the "choice of the people."
Campbell, who pushed the case, could not be reached for comment Monday. Robinson, who lost to Cohen, said he wishes the retired education professor the best of luck and will not file an appeal.
"That's probably the decision I would have made, too: Let the will of the voters override the state law," Robinson said. "In the court of public opinion, he made the right decision." * * *
Typically, the district screens out candidates who would violate the law because the two seats are up for election in different years. This year was unusual because one of the seats was up in a special election to replace Olgen Williams, who resigned late last year to become deputy mayor.
Hanley's ruling focused on two key legal points:
The wording of the law -- "not more than two of the members who serve on the board may reside in the same board district" -- is more of a recommendation. He ruled that the word "may" suggests "a permissive condition and a grant of discretion" unlike the word "must."
Courts have long ruled in Indiana that election outcomes should not disregard voters, and that courts should err on the side of "promoting the choice of the people."
Posted by Marcia Oddi on July 1, 2008 05:31 AM
Posted to Ind. Trial Ct. Decisions | Indiana Government
Monday, June 30, 2008
Law - "N.C. legislators debate golf carts as transportation as gas prices remain near $4 a gallon"
The Wilmington NC StarNews had this story Sunday, reported by Joe Johnson, that begins
Raleigh | Golf cart owners who want hit the highways instead of the fairways in an attempt to beat $4 gas prices should wait until regulations are in place.Existing state law already allows street-legal golf carts to operate on any street or road where the speed limit is 35 mph or less.
State Rep. Danny McComas, R-New Hanover, has pending legislation that will allow Wilmington and New Hanover County to establish rules for using golf carts as transportation. Last year Wrightsville Beach, Carolina Beach and Kure Beach got the power to regulate the use of golf carts in their towns.
"It is only permissive and it's best to do it before it becomes a problem," McComas said. "Sometimes people have golf carts for other uses. It's going to be up to the cities set up their own regulations."
Wrightsville Beach Police Chief John Carey said he could not recall anybody using a golf cart improperly in his town in the past year. Even though Wrightsville Beach received the power to regulate golf carts last year, Carey said there presently are no town ordinances concerning golf carts. That doesn't mean it is legal to hit the roads in Wrightsville Beach in a golf cart, though.
"A golf cart would have to be street legal," Carey said. "Otherwise, a person could be charged with driving an unregistered vehicle and a myriad of other charges."
Caswell Beach in Brunswick County was one of the first communities to seek the ability to regulate golf carts in 2006. Caswell Beach has a whole section of regulations regarding the use of golf carts in town. Unaccompanied drivers have to be at least 15 and possess a state-issued permit, and the have to follow the town's traffic code. The golf carts have to be street legal. Golf carts are not allowed to be operated on the town's main thoroughfare, Caswell Beach Road, however.
"Safety is the main consideration," said Caswell Beach town administrator Jim Carter.
Posted by Marcia Oddi on June 30, 2008 04:15 PM
Posted to General Law Related
Ind. Decisions - The Supreme Court has now posted two (now three) more this afternoon
Willie Eaton v. State of Indiana is an 11-page, 4-1 opinion, with a 4-page dissent. Justice Dickson writes:
In this direct appeal, the defendant challenges his convictions for Dealing in Cocaine, a class A felony, and Possession of Marijuana, a class A misdemeanor. The Court of Appeals reversed both convictions, finding that evidence was improperly admitted due to the insufficiency of a police affidavit on which an initial search warrant was issued. We granted transfer and affirm the convictions. * * *In 600 Land Inc. v. Metropolitan Board of Zoning Appeals of Marion Co., Indiana, et al., a 3-2 opinion, Justice Sullivan writes:We reject the defendant's claim that the warrant authorizing the search of his home was not supported by sufficient probable cause. * * *
Without explanatory argument or citation to supporting authority, the defendant simply declares that the col-lection and seizure of the items not enumerated in the search warrants "comprises a clear violation" of his constitutional rights against illegal search and seizure. * * *
These claims are not meritorious. A police officer may seize evidence not identified in a warrant "when he inadvertently discovers items of readily apparent criminality while rightfully occupying a particular location." * * *
Conclusion We affirm the judgment of the trial court.
Shepard, C.J., and Sullivan, and Boehm, JJ., concur.
Rucker, J., dissents with separate opinion. [which concludes] Today’s ruling invites the Government’s search of a suspect’s business, home, garage, tool shed, workshop, or any other property a suspect may use simply because a law enforcement officer believes, without more, that evidence of crime can be found there. In my view this is an anathema to the mandate of the Fourth Amendment of the United States Constitution as well as Article I, Section 11 of the Indiana Constitution. There were no bases in this case, substantial or otherwise, for the magistrate to conclude that probable cause existed for the issuance of a search warrant. Eaton’s motion to suppress should have been granted. Therefore I agree with the result reached by the Court of Appeals and would reverse the judgment of the trial court.
600 Land, Inc. is the owner of land in Marion County on which it wants to build a “solid waste transfer station.” The County contends that a special exception from the zoning ordinance is required. The land is zoned to permit a “motor truck terminal” to be operated without a special use permit. 600 Land’s proposed use qualifies as a “motor truck terminal” because “[a] terminal may include facilities for the temporary storage of loads prior to transshipment.” * * *In Brenwick Associates LLC and Town of Whitestown, Indiana v. Boone County Redevelopment Commission and the Board of Commissioners of Boone County, Indiana, a 9-page, 5-0 opinion, Justice Sullivan writes:Conclusion. The judgment of the trial court that 600 Land is required to obtain a special use permit for its transfer station is reversed.
Shepard, C.J., and Dickson and Rucker, JJ., concur.
Boehm, J., dissents with separate opinion in which Dickson J., concurs. [The dissent begins:] I respectfully dissent. The majority concludes that a waste transfer facility is a “motor truck terminal” requiring no special exception under the applicable zoning ordinance. To reach this conclusion the majority parses various provisions of the governing ordinance and cites a number of rules of statutory construction, but in my view fails to deal with those that are central to this case.It seems to me that if we asked a group of average citizens whether a waste transfer station was a motor truck terminal, we would get at best a tie for the position the majority reaches. I acknowledge that the proposed “waste transfer station” meets the technical definition of “motor truck terminal” because it involves the parking, storing, and servicing of trucks. But the activities of a waste transfer station go beyond that definition. Most people would regard garbage as different for purposes of land use regulation from consumer or industrial products on their way to customers. So as a matter of ordinary English, I find the majority’s reading of the ordinance quite strained. But there are also several legal points that the majority does not address.
The Town of Whitestown initiated annexation of unincorporated land in Boone County to spur economic development. Ten days later, the County itself initiated proceedings to establish a special taxing district (called an economic development area) that included the same unincorporated land. Our State’s economic development statutes permitted Boone County to establish the economic development area at issue in this case even though it included the same land that Whitestown was attempting to annex. * * * The judgment of the trial court is affirmed.
Posted by Marcia Oddi on June 30, 2008 03:33 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Courts - Indiana Court Times, May/June 2008, is available online
The Indiana Courts website announces today that the 20-page May/June issue of Indiana Court Times is available online.
Posted by Marcia Oddi on June 30, 2008 03:26 PM
Posted to Indiana Courts
Ind. Decisions - Supreme Court posts one this afternoon
In Phillip Miles v. State of Indiana, a 3-page Per Curiam opinion, the Court concludes:
We grant transfer because Miles is not precluded from seeking appellate sentence review under the circumstances. In Childress v. State, 848 N.E.2d 1073 (Ind. 2006), we rejected the argument that defendants, by entering plea agreements that specify a sentence range, have acquiesced to a sentence in the specified range and thus forfeit the opportunity for appellate sentence review. We held that such defendants may raise the appropriateness of a sentence imposed under the terms of such plea agreements. Similarly here, defense counsel’s arguments at the sentencing hearing about a sixty-five year sentence does not equate to “invited error” or acquiescence in a sixty-five year sentence such that Miles is precluded from asking an appellate court to review his sentence. Rather, the trial court exercised discretion in determining Miles’s sentence and Miles is entitled to contest the reasonableness of a trial court’s sentencing discretion on appeal. See Id. at 1078-79; see also Tumulty v. State, 666 N.E.2d 394, 396 (Ind. 1996) (providing appellate sentence review to defendant on open plea).Having reviewed the merits of Miles’s argument that the sentence should be revised, however, we conclude the sentence was not inappropriate in light of the nature of the offenses and the character of the offender.
Accordingly, we grant transfer, thus vacating the Memorandum Decision of the Court of Appeals, and affirm the sentence.
Posted by Marcia Oddi on June 30, 2008 02:46 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Court of Appeals issues 7 today (and 26 NFP)
Today is the end of the term.
For publication opinions today (7):
In Indiana Department of Natrual Resources and State of Indiana v. Lake George Cottagers Association , a 7-page opinion, Judge May writes:
The Lake George Cottagers Association (hereinafter “the Association”) sought a declaratory judgment the State owns the real estate underneath a dam built in the 1930s and is therefore responsible for repairing it. The Association and the State both moved for summary judgment, and the trial court granted the Association’s motion. We find the legislature could not have intended the Lake Preservation Act to confer on the State “a right, a title, or an interest in or to the property” where a dam is located. Ind. Code § 14-27-7.5-4. We accordingly reverse and direct the entry of summary judgment for the State. * * *In In the Matter of A.T.; Lake County Dept. of Child Services v. A.T. and Lake County CASA , a 7-page opinion, Judge Crone writes:In 1928, a ten acre plot including the Mill Pond was conveyed to the Association. Sometime in the 1930s, the Dam was built on the Association’s property at the south end of the Mill Pond to control the Lake’s water level and prevent flooding of a nearby road.
The Association still has title to the real estate conveyed in 1928. In 1947 the legislature enacted the Lake Preservation Act, which gave the State “full power and control of all of the public freshwater lakes in Indiana” and provided the State “holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes.” I.C. § 14-26-2-5(d).
The Association sought a declaratory judgment the State owned the Dam and the real estate underneath it. Both the State and the Association moved for summary judgment, and the trial court granted summary judgment for the Association. * * *
[Hled] The State did not become an “owner” of the land under the Mill Pond Dam by conveyance, by virtue of the Lake Preservation Act, or otherwise. Summary judgment for the Association was therefore error, and we direct the entry of summary judgment for the State. Reversed.
May a juvenile court discharge an eighteen-year-old CHINS and reinstate jurisdiction over that child before she reaches age twenty-one? According to Indiana Code Section 31-30-2-1(a), it may not: * * *In Clyde Pryor v. State of Indiana , a 9-page opinion, Judge Crone writes:Here, the juvenile court relinquished its jurisdiction over eighteen-year-old A.T. when it discharged her in August 2006. The methods by which a juvenile court may properly reinstate its jurisdiction are found in Indiana Code Sections 31-30-2-3 (sua sponte reinstatement within thirty days upon notification from the Department of Correction regarding the child’s release) and 31-30-2-4 (on petition of the Department of Correction). Neither section is applicable in this case.
Therefore, in August 2007, the juvenile court lacked jurisdiction to reinstate nineteen-year-old A.T. as a ward of DCS. Accordingly, we reverse.
Clyde Pryor appeals his conviction for class D felony auto theft, arguing the evidence is insufficient to support his conviction. * * *In State of Indiana v. William R. Whitney , a 9-page opinion, Judge May writes:While it may have been a relatively simple matter for the State to have introduced the evidence necessary to establish Ambrosia Martin’s ownership of the stolen vehicle, the fact of the matter is that it did not, and that deficiency is fatal to the prosecution. Reversed.
The State of Indiana appeals the grant of William R. Whitney’s motion to suppress evidence of Whitney’s intoxication. We reverse and remand. * * *James Ridner v. State of Indiana - "James Ridner appeals the trial court’s order that he register as a sex offender. We affirm. * * *Deputy Blacker had reasonable suspicion. He stopped Whitney at 12:30 in the morning because Whitney was traveling fifteen miles per hour over the speed limit. When Whitney spoke, Deputy Blacker “thought [he] could smell an odor of an alcoholic beverage coming from him.” Although Deputy Blacker was not positive the smell was alcohol, rather than leather or the motorcycle engine, his belief the smell might have been alcohol was sufficient to justify a brief detention to determine whether Whitney had consumed alcohol. Although Deputy Blacker testified he typically offered field sobriety tests prior to a PBT [portable breath test], we see nothing unreasonable or illegal about his reversing the order of those tests under these facts.
Because Deputy Blacker had the reasonable suspicion to support a PBT, we reverse the grant of Whitney’s motion to suppress and remand for further proceedings. Reversed and remanded.
"The Morgan County Probation Department directed Ridner to register pursuant to the terms of the amended statute. On July 12, 2007, Ridner asked the trial court to classify his conviction as a “Non-Registration Required Offense.” The trial court ruled Ridner is required to register, but stayed its ruling pending appeal. * * *
"The registry requirement is not an ex post facto law as applied to Ridner."
In Randall R. Davis v. M. Brian Davis & Trust of Maybelle V. Reichert, Judge Kirsch writes:
Randall R. Davis (“Randall”), a beneficiary of a trust established by his mother, Maybelle V. Reichert (“Reichert”), filed a petition to have his brother, M. Brian Davis (“Brian” or the “Trustee”), removed as the trustee of the trust. The trial court denied Randall’s petition. Randall appeals raising the following restated issues for our review: I. Whether the trial court abused its discretion in finding that Brian’s actions did not warrant his removal as the trustee of the Trust. II. Whether the trial court erred in setting the interest rate at 4.5% for the Trustee’s repayment of loans despite expert testimony that the applicable rate during that time period was 8%. III. Whether the trial court erred in reducing Randall’s attorney fee award from his requested $29,628.69 to $4,000.00. We reverse and remand.In Steven McCullough v. State of Indiana, a 22-page opinion including a separate opinion concurring in result, Judge Crone writes:
Steven McCullough appeals his convictions for class C felony criminal confinement, class D felony criminal confinement, and class A misdemeanor battery, as well as a habitual offender finding, on sufficiency and double jeopardy grounds. In a matter of first impression, the State brings a cross-appeal asserting that the trial court abused its discretion in balancing aggravating and mitigating factors in imposing McCullough’s sentence and that the sentences for the class C felony and habitual offender counts are inappropriately lenient in light of the nature of the offense and McCullough’s character. We hold that McCullough’s convictions are supported by sufficient evidence but vacate the class D felony confinement conviction on double jeopardy grounds. We further hold that the State may challenge a defendant’s sentence on cross-appeal for an abuse of discretion or inappropriateness, but only if the defendant appeals his sentence in his appellant’s brief. Because McCullough did not appeal his sentence, we do not reach the merits of the State’s cross-appeal.NFP civil opinions today (8):
Heather (Parmeter) Scott v. Shonn Parmeter (NFP)
Hoosier Motor Co. Inc. v. The LaPorte Savings Bank (NFP)
Daniel Jordan, Michael D. Jordan, and Troutwine Estates Development Co., LLC v. Steve Manich (NFP)
Adoption of A.J.; Brenda Johnson v. Velma Johnson (NFP)
NFP criminal opinions today (18):
Rodney B. Armour, Sr. v. State of Indiana (NFP)
Steven Loyd Brinkley v. State of Indiana (NFP)
Patrick Wilson v. State of Indiana (NFP)
Michael A. Peterson v. State of Indiana (NFP)
Rick G. Gwinn v. State of Indiana (NFP)
Earl Jackson v. State of Indiana (NFP)
Roxanne Keen v. State of Indiana (NFP)
Trisha Allen v. State of Indiana (NFP)
Yuri Zavodnik v. State of Indiana (NFP)
Samuel Peters v. State of Indiana (NFP)
Christopher J. Hovious v. State of Indiana (NFP)
Clinton Hernandez v. State of Indiana (NFP)
John H. Redmond v. State of Indiana (NFP)
Gerald L. Stokes v. State of Indiana (NFP)
Dewayne Easley v. State of Indiana (NFP)
Chad Lemons v. State of Indiana (NFP)
Terry Washington v. State of Indiana (NFP)
Anibal Saravia v. State of Indiana (NFP)
Posted by Marcia Oddi on June 30, 2008 12:51 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "Accused officers' drugs cases at risk"
Reported this morning by Vic Ryckaert of the Indianapolis Star, a story that begins:
After an Indianapolis police officer appeared in court this morning on charges he knowingly sold a firearm to a convicted burglar, the Marion County prosecutor admitted he’s worried about the fate of the investigator’s pending drug cases.Jason Barber, 32, appeared in Marion Superior Court on charges of selling a handgun to a felon and official misconduct. Barber, a narcotics detective, was arrested at his home Friday. He is the fourth police officer to be arrested in the last two weeks.
“These officers were in this court several weeks ago testifying against defendants,” Prosecutor Carl Brizzi said after the hearing. “Now they are defendants.”
Posted by Marcia Oddi on June 30, 2008 12:28 PM
Posted to Indiana Courts
Courts - Linda Greenhouse recaps the Court's term
Linda Greenhouse, who took an early buyout from the NY Times and is moving on to Yale, recaps the Supreme Court's term in this article in the Sunday Times. Accompanying the story are two valuable, not to be missed charts, "Close Cases" (here), and "Major Rulings" (here).
Equally valuable are these summaries of the 2007-2008 term’s most important decisions.
Posted by Marcia Oddi on June 30, 2008 10:03 AM
Posted to Courts in general
Ind. Law - More on: Impact of the decision in Heller on Indiana (and Chicago)
Updating this ILB entry from June 27th, David G. Savage of the LA Tmes had an excellent analysis piece June 28th headed "Supreme Court gun ruling leaves questions: How far does the constitutional right to gun ownership extend? Is the right fundamental -- generally not subject to government rules? Or can it be strictly regulated?" A few quotes:
WASHINGTON -- The Supreme Court’s historic ruling this week that clarified Americans' right to own a gun for self-defense left a crucial question unanswered, one that will be resolved only after many years and a torrent of litigation, legal experts said Friday.An editorial today in the Fort Wayne Journal Gazette, however, states without qualification:Is gun ownership a "fundamental right" under the Constitution, or something less? Put simply, is a gun akin to an automobile, a legal but dangerous product that can be strictly regulated by the government? Or is a gun more like a book, both legal and largely off-limits to government regulation?
"There's a lot that needs to be sorted out. The big question is: Is this like the 1st Amendment and the freedom of speech?" said John Eastman, dean of the Chapman University School of Law in Orange. He once was a clerk on the high court. * * *
The justices also barely touched on a threshold issue for future lawsuits.
The decision in District of Columbia vs. Heller did not say the 2nd Amendment applies to states and localities. Washington, D.C., is not a state.
Until the early 20th century, the Bill of Rights was assumed to limit only the federal government, not the states; now the presumption is that the Constitution protects Americans against the government at all levels -- federal, state and local. But the Supreme Court has not said the 2nd Amendment applies to the states.
"That's the next case to come up, but I think it's a foregone conclusion" that the 2nd Amendment will extend to state and local laws, said Washington lawyer Alan Morrison, who wrote the District of Columbia's opening brief defending its law when he was a city attorney.
In the wake of Thursday's ruling, Morrison said: "The bottom line is, it looks like a full-employment decision for lots of gun lawyers and state, federal and municipal lawyers."
The ruling, however, will have little local effect in Indiana, where the state constitution establishes a right to own guns for self-defense in more precise language than the U.S. Constitution.Leaving state/federal issues aside, what exactly does the Indiana Constitution provide? Art. 1, Sec. 32:
The people shall have a right to bear arms, for the defense of themselves and the State.
Posted by Marcia Oddi on June 30, 2008 09:48 AM
Posted to Indiana Law
Ind. Law - "Law requiring schools and governments to receive referendum approval for large, publicly financed projects takes effect July 1"
Niki Kelly reports in the Fort Wayne Journal Gazette today under the headline "New law bolsters voter say on taxes." Her story begins:
A new era of citizen control over property taxes starts Tuesday when a law requiring schools and governments to receive referendum approval for large, publicly financed projects takes effect.Bruce C. Smith has a story in the Indianapolis Star headed "Is Plainfield's the last of the big-ticket schools? Law requiring referendums could quash similar projects." His story begins:That means voters will more directly decide the fate of their own property tax bill – giving a thumbs up or down to many schools, fire stations, libraries and more.
“There are some things I think are pretty central, and I think a referendum process – trusting the people and letting them make decisions before they are taxed for big borrowing – is pretty important,” Gov. Mitch Daniels said earlier this year in a meeting with reporters.
He also has said repeatedly that he doesn’t think a referendum process will mean the end of infrastructure improvement in Indiana.
Schools will likely be the most affected: On average 54 cents of every property tax dollar collected in Indiana goes to schools, and nearly 11 cents of that pays for school construction debt.
At the public opening of the new Plainfield High School on Sunday, high praise flew faster than adjectives and adverbs in a freshman English composition.Beautiful. Outstanding. Exciting. Unbelievable. Wow.
Advertisement"Makes me want to go back to high school," said Avon dentist Lou Menegotto, the father of an incoming senior at the new $103 million school.
Thousands attended a dedication ceremony Sunday and took student-led tours of the spacious 476,000-square-foot home of the Plainfield Quakers. The building at 1 Red Pride Drive is the centerpiece of a 110-acre campus with a 4,000-seat football stadium and a bell in the Tower of Honor.
But in an age of taxpayer revolt and a state law effective Tuesday requiring referendums on expensive government buildings, the future of similar big-ticket schools in Indiana isn't as clear.
Posted by Marcia Oddi on June 30, 2008 09:38 AM
Posted to Indiana Law
Ind. Law - "Tragic cases often spur fetal homicide laws"
Deanna Martin, writing today for the AP, has a long article on fetal homicide. The article starts by referencing Marion County Prosecutor Carl Brizzi's call for a strengthened law after the recent death of two unborn twins in a bank robbery:
"We've got two innocent babies whose lives were abruptly terminated, five months old, and all we can do is charge this individual with a C felony feticide for each life that was taken because of the way the law's written," Marion County Prosecutor Carl Brizzi said after the June 20 arrest of Brian Kendrick. Kendrick also faces other charges in the April 22 shooting that carry longer sentences.Here are three earlier ILB entries on fetal homicide. The entry from April 30th cites this Indianapolis Star story by Jon Murray, which details the history behind Indiana's current law:Some legislators agree with Brizzi that the possible prison sentence for killing a fetus is too short and are looking to change the law. It could make Indiana the newest battleground for the debate that has been waged in other states.
Conservative groups say such legislation is needed to protect human life and to recognize that a crime against a pregnant woman has more than one victim. But abortion rights activists say fetal homicide laws are often a backdoor way to determine that life legally begins at conception and can pit a mother's rights against those of her unborn child.
In Indiana, the law allows prosecutors to file murder charges in cases where a fetus dies, but only if the mother is at least seven months pregnant. * * *
"This is not a reproductive rights issue," said Brizzi, the Marion County prosecutor. "This is protecting unborn children at conception."
The bill was drawn up after the shooting of an Indianapolis couple, Melanie and Kevin Elmore, that killed Melanie's baby after more than eight months of pregnancy. Planned Parenthood called it an abortion bill, but it passed both chambers overwhelmingly.The National Conference of State Legislatures has an informative resource on fetal homicide, last updated in April.Then-Gov. Frank O'Bannon, a Democrat, vetoed the bill over concerns it put abortion doctors at risk. Both chambers overrode the veto in 1998.
That law marked the line at viability. Its sponsor, Rep. Jim Buck, R-Kokomo, now a state senator, said it is time to expand it, in part because advances in medicine have made the legal standard for viability outdated.
Posted by Marcia Oddi on June 30, 2008 09:12 AM
Posted to Indiana Law
Environment - "Congress now focus of Great Lakes compact"
John Flesher, AP Environmental Writer, reports today:
TRAVERSE CITY, Mich. | A year ago, it seemed a proposed compact designed to prevent raids on the Great Lakes might be sunk by squabbles in the states with jurisdiction over nearly one-fifth of the world's fresh surface water.Now the deal is close to ratification on the state level, and supporters are beginning to plot strategy for the final step: winning approval from Congress and the White House.
On the surface, the task would appear easy. Congress has endorsed more than 200 interstate compacts over the years, including 41 dealing specifically with water management. They regulate use of some of the nation's primary water sources, such as the Colorado and Delaware rivers. * * *
But backers remain wary. After all, it was fear of water grabs from other sections of the country -- or even from overseas -- that inspired the eight states to negotiate their deal. * * *
[Before the Compact goes to Congress] approval is needed from the region's eight state legislatures. Minnesota quickly said yes, followed by Illinois, Indiana and New York. Gov. Ted Strickland, of Ohio, signed the bill Friday and Jennifer Granholm, of Michigan, has pledged to sign her state's bill. When she does, the focus will turn to Pennsylvania, where the compact cleared the House in January and is pending in the Senate.
Posted by Marcia Oddi on June 30, 2008 09:01 AM
Posted to Environment
Ind. Decisions - More on "Physical discipline of child not abuse"
Updating this June 12th ILB entry on the Supreme Court's 4-1 decision June 10th in the case of Sophia Willis v. State of Indiana (see ILB entry here, 2nd case), the South Bend Tribune today carries an editorial by the Associated Press on the opinion. The brief editorial concludes:
The court based its reversal on what seems to be a very broad conclusion: Because the injuries were not permanent or serious, battery had not occurred.While we are certain that the court did not intend to put its stamp of approval on beating children, we share Sullivan's concerns. It seems that the issue of corporal punishment has been muddied rather than clarified.
Posted by Marcia Oddi on June 30, 2008 08:55 AM
Posted to Ind. Sup.Ct. Decisions
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:
None scheduled.
Posted by Marcia Oddi on June 30, 2008 06:29 AM
Posted to Upcoming Oral Arguments
Sunday, June 29, 2008
Ind. Law - "Activist lawyer works to keep city honest"
John Ketzenberger's column today in the Indianapolis Star begins:
What's gotten into local attorney Paul Ogden?For background on the Dome lawsuit, start with this ILB entry from March 22nd.A Republican and former political candidate, he has the public-private partnerships long championed by power brokers of both parties squarely in his sights.
The 47-year-old associate with Roberts & Bishop isn't well known in the business community, but the effect of his work is being felt through his clients' lawsuits. Among them:
» In March he sued the Capital Improvement Board over plans to turn over proceeds from the auction of RCA Dome memorabilia to the Indiana Sports Corp. and the Indianapolis Colts Foundation. Ogden argued the money should be used to pay down the $75 million debt related to the dome.
The CIB last month settled the lawsuit and paid nearly $7,900 to cover attorney's fees. The case ended without settling key questions such as who owns the dome's turf.
Posted by Marcia Oddi on June 29, 2008 09:49 AM
Posted to Indiana Law
Ind. Law - Some of the new laws taking effect July 1
Niki Kelly of the Fort Wayne Journal Gazette reports today on some of the new laws taking effect July 1st. The main story focuses on "a new law legalizing some low-stakes games of chance" in bars and taverns. A side-bar looks at some other new laws that take effect July 1, including a law which "requires passengers involved in accidents who are older than 18 or who are at least 15 and have a learner’s permit or driver’s license to alert authorities."
Tomorrow Kelly will report on "new legislation taking effect July 1 that relates to the referendum requirement for construction projects financed by property taxes."
Mike Smith of the AP has a story today headed "More than 140 laws to kick in." A quote from early in the story reads:
But the provisions of another new law that would have allowed police investigators to search the computers of sex offenders at any time -- long after their sentences had been served -- will not take effect as scheduled.Not exactly. See this ILB entry from yesterday.A federal judge struck it down last week, saying it violated constitutional privacy rights.
Posted by Marcia Oddi on June 29, 2008 09:05 AM
Posted to Indiana Law
Saturday, June 28, 2008
Ind. Courts - "Judge takes on new role as deacon" [Updated]
Here are some quotes from a story today by Laura Lane of the Bloomington Herald Times ($$):
Monroe Circuit Judge Marc Kellams may want to consider purchasing a reversible robe.[Updated 6/29/08] "Heeding an ancient call to serve god: Archdiocese revives long-dormant role, ordains 25 as deacons," is the headline to a story today by Robert King in the Indianapolis Star.Black on one side for when he is in his role as judge; white on the other, for his new volunteer job as a deacon in the Catholic church.
Today, 59-year-old Kellams is among 25 men being ordained as the first class of permanent deacons in the Archdiocese of Indianapolis, which covers central and southern Indiana.
More than 1,000 people are expected at the 10 a.m. ordination ceremony at SS. Peter and Paul Cathedral in Indianapolis. The event will recognize the men of faith and formalize their responsibilities as ministers of charity within their parishes. They have spent one weekend each month together during their four-year education process, learning and praying.
The deacons won’t be hearing confessions or consecrating the bread and wine for communion, but they will be able to baptize babies, perform marriages, pray with the sick and dying and serve communion.
The deacons, who have been in training for four years, will serve their parishes for 10 hours a week without compensation. The deacons, dressed in white robes called albs with stoles across their chests, will assist with Mass and occasionally will preach to the congregation. * * *
Kellams will serve St. Charles Borromeo Parish, his home church in Bloomington, where he already coordinates visits to the sick and elderly. “That’s my primary role — assisting the old and the sick,” he said.
Posted by Marcia Oddi on June 28, 2008 06:19 PM
Posted to Indiana Courts
Ind. Law - "Legislative patchwork befuddles state panel"
So reads the headline to a story by Patrick Guinane in yesterday's NWI Times:
INDIANAPOLIS | The legislative labyrinth surrounding Indiana's property tax system proved too difficult Thursday for a state oversight panel to navigate.The Local Government Property Tax Control Board punted on about $5 million in appeals sought by the city of Gary, it's sanitary and stormwater districts and Gary/Chicago International Airport.
Members of the state panel said they had little clue what the General Assembly's intentions were this spring when it extended the deadline for local government to appeal tax shortfalls sustained last year. The board unanimously decided to let Cheryl Musgrave, commissioner of the Indiana Department of Local Government Finance, sort out the situation.
Lake County tax bills went out so late last year -- in December -- that Gary and its sister agencies didn't know how short they would be until the county distributed tax collections in March. City officials now say that assessment errors and taxpayer appeals shorted Gary at least $4.4 million while sapping $521,000 from its sanitary district, $100,000 from the airport and $73,000 from the stormwater district.
State law typically requires local government to take out a newspaper ad announcing any anticipated appeal of its property tax levy, which Gary and the sister agencies didn't do when advertising annual budgets last fall.
But city officials question how they were supposed to forecast shortfalls they didn't know about until the county distributed property tax collections six months later.
Posted by Marcia Oddi on June 28, 2008 01:22 PM
Posted to Indiana Government | Indiana Law
Ind. Courts - "East Chicago racketeering case cleared for trial"
Patrick Guinane reports today in the NWI Times in a story that begins:
INDIANAPOLIS | U.S. District Court Judge James Moody cleared the way Friday for the state's protracted civil racketeering lawsuit against former East Chicago Mayor Robert Pastrick to go to trial.Moody dismissed arguments by Pastrick and other defendants, who said the case against them was so weak it shouldn't go to court. But Moody also threw out most of the motions made by Indiana Attorney General Steve Carter, who argued the Pastrick administration displayed an undisputed pattern of corruption that undeniably harmed city taxpayers.
The ruling, which means the four-year-old lawsuit now will move before a jury, elicited applause from both sides of the case and triggered a political challenge in the race for Indiana attorney general.
Posted by Marcia Oddi on June 28, 2008 01:17 PM
Posted to Ind Fed D.Ct. Decisions
Ind. Courts - Still more on: Supreme Court issues emergency order re handling of forfeiture cases in Muncie
Updating previous ILB entries, the most recent being this one from June 24th, Douglas Walker of the Muncie Star-Press has a new report today that begins:
MUNCIE -- Judge Richard Dailey wants records reflecting all deposits and withdrawals -- and copies of cashed checks -- from a First Merchants Bank account that contained funds confiscated from accused drug dealers by the Muncie-Delaware County Drug Task Force and the county prosecutor's office.The Delaware Circuit Court 2 judge on Friday issued court orders for those banking records, along with those of two city government accounts and tax forms reflecting payments to Delaware County Prosecutor Mark McKinney, Deputy Prosecutor Eric Hoffman and former Deputy Prosecutor Louis Denney, who filed the civil lawsuits that led to the forfeitures.
Dailey -- who in recent weeks has conducted a series of hearings on what the judge referred to in Friday's orders as "allegations of fraud upon the court in civil drug forfeiture cases" -- also issued an order for "all information" on federal grants that city government, the DTF and the county sheriff's department "used for drug interdiction or enforcement, in Muncie, Ind., from 1996 to present..."
In one of Friday's orders, Dailey wrote that McKinney had "repeatedly asserted to this court that he may enter into confidential agreements and dispose of drug forfeiture funds without court adjudication..."
The judge wrote that through his own investigation he had determined that grants from the U.S. Department of Justice required that all forfeitures "must first be adjudicated in state courts."
Posted by Marcia Oddi on June 28, 2008 11:21 AM
Posted to Indiana Courts
Ind. Decisions - More on: Judge Hamilton holds SB 258 unconstitutional
In John Doe v. Prosecutor, Marion County, an opinion issued by federal Judge David Hamilton June 24th, Senate Enrolled Act 248, which takes effect Monday, July 1st, was held unconstitutional, at least in part. The 51-page opinion concluded:
The court will enter a final declaratory judgment stating that the newly enacted Indiana Code § 11-8-8-8(b) may not be applied to members of the plaintiff class.The new lanuage of IC 11-8-8-8(b) is at the top of p. 5. It reads:
(b) If the sex or violent offender registers any information under subsection (a)(7), the offender shall sign a consent form authorizing the:Elvia Malagon of the Gary Post-Tribune reports today on a news conference by Attorney General Steve Carter on enforcement of the the new law. The story, headed "New state law bars sex offenders from social networking Web sites," does not mention the court case.(1) search of the sex or violent offender's personal computer or device with Internet capability, at any time; and
(2) installation on the sex or violent offender's personal computer or device with Internet capability, at the sex or violent offender's expense, of hardware or software to monitor the sex or violent offender's Internet usage.
Benjamin Lanka of the Fort Wayne Journal Gazette, also reports on the Attorney General's press conferences yesterday. Some quotes:
Starting next week convicted child predators will be forced to register their virtual addresses along with their physical addresses in Indiana.Attorney General Steve Carter traveled the state Friday to highlight some state laws taking effect July 1 that protect Hoosier children and consumers. He focused on Senate Enrolled Act 258, which prohibits a registered sex offender convicted of certain crimes involving children from using social networking Web sites, instant messaging programs or chat room programs that the offender knows include children.
Specifically, it requires those offenders to register their e-mail addresses and online user names along with their other information.
“By July 1, cyberspace is going to be a safer place for Hoosier children,” Carter said.
The law requires offenders to update their registry within 72 hours of changing e-mail addresses or user names. Failure to provide such an update will be a Class D felony. Carter said it is likely some offenders will ignore this new provision, but he hopes the threat of further prosecution acts as a deterrent to keep them honest.
A federal judge in U.S. District Court this week ruled the part of the law that requires offenders to allow their computers to be searched is unconstitutional. Offenders would have had to sign a consent form allowing searches of their computers or other Internet-enabled devices at any time. They would also have to install software that monitors their Internet activity at their expense.
On Friday, Carter said the ruling does not curtail the other portions of the law, including the registry of virtual addresses. He said the information on e-mail accounts and user names would be available to the public in the same way home addresses are.
Posted by Marcia Oddi on June 28, 2008 10:58 AM
Posted to Ind Fed D.Ct. Decisions | Indiana Law
Friday, June 27, 2008
Ind. Decisions - Another Supreme Court opinion posted today
Debra A. Barnett v. Camille Clark, Trustee of Pleasant Township, a 6-page, 5-0 opinion by Justice Dickson in a case argued May 22, 2008 - "The deputy trustee's injurious acts did not fall within the scope of his employment for the defendant Trustee, and thus the Trustee is not vicariously liable under the doctrine of respondeat superior."
The Fort Wayne Journal Gazette's Niki Kelly wrote about this case May 23rd after the oral arguments. Her story started:
The Indiana Supreme Court heard arguments Thursday on whether former Pleasant Township Trustee Camelia Clark can be held legally responsible for the sexual battery committed by one of her employees – and husband – Donald Clark.See ILB entry from May 23rd here.Donald Clark pleaded guilty in 2005 to sexual battery and battery involving two women who came to the trustee’s office seeking temporary financial assistance.
Posted by Marcia Oddi on June 27, 2008 07:07 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Transfer list for week ending June 27, 2008
Here is the Indiana Supreme Court's transfer list for the week ending June 27, 2008. Note that there are four pages.
The Court granted five transfers with opinion this week; all have been posted: four (Smith, Neff, Young, and Young.) yesterday and one (Belvedere) today.
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 June 27, 2008 03:35 PM
Posted to Indiana Transfer Lists
Environment - Yet more on: Gary Post-Tribune examines IDEM calls to BP
Updating this ILB entry from June 25th, the Gary Post-Tribnune has an editorial today headed "What is it that IDEM seems bent on hiding?"
Posted by Marcia Oddi on June 27, 2008 02:51 PM
Posted to Environment
Ind. Decisions - Supreme Court issues three opinions today re trash searches
In George Membres, III v. State of Indiana, a 23-page, 3-2 opinion in a case argued 4/17/07, Justice Boehm writes:
We hold that Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), does not apply retroactively because it established a new rule of state criminal procedure that does not affect the reliability of the fact-finding process. We also hold that the warrant in this case was supported by probable cause and was not overbroad. * * *Darius V. Bowles v. State of Indiana, decided 3-2 - "Accordingly, a Litchfield claim is unavailable to Bowles in this appeal."In March of 2005, Deputy Scott Wildauer of the Marion County Sheriff’s Department was involved in an ongoing investigation into possible drug trafficking at the residence of George Membres III. A confidential informant told Wildauer that he saw another drug dealer at Membres’s house and that he was “pretty sure” Membres was dealing “large quantities” of marijuana from his residence. * * *
Based on this information, on March 9, 2005, Wildauer seized the trash from the public area in front of Membres’s residence on a routine trash collection day. A search of the trash revealed twenty-five burnt ends of marijuana cigarettes, marijuana, four plastic baggies with corners missing, two empty packages of rolling papers, and mail addressed to Membres. Based on the evidence recovered from Membres’s trash, the State obtained a warrant to search Membres’s home for “[m]arijuana, controlled substances, U.S. Currency, papers, records, documents, com-puters, or any other documentation which indicates or tends to indicate a violation or a conspir-acy to violate the [Indiana Controlled] Substances Act, paraphernalia, scales, packing materials, and weapons.” A search produced $57,060 in cash, marijuana, rolling papers, paraphernalia, firearms, four Rolex watches and other jewelry, cell phones, and a number of documents. * * *
Membres contends that the search of his trash was unlawful under Litchfield, decided two weeks after the search. * * *
Litchfield “reshaped” the understanding of what constitutes a reasonable warrantless trash search.
Membres argues that because his case was not yet final at the time Litchfield was decided, Litchfield's new rule of criminal procedure applies retroactively to Wildauer’s search of his trash. The Court of Appeals did not discuss the retroactivity of Litchfield. Apparently assuming that retroactive application was proper, the court evaluated Membres’s trash search claim under the Litchfield standard and found that Wildauer did not have reasonable suspicion for the warrantless trash search. * * *
Neither the Supreme Court of the United States nor this Court has ever considered whether these general principles of retroactivity apply to the rule requiring exclusion of evidence that is the product of an unconstitutional search or seizure. * * *
Indiana search and seizure jurisprudence, like federal Fourth Amendment doctrine, identifies deterrence as the primary objective of the exclusionary rule. ... The rule announced in Litchfield is designed to deter random intrusions into the privacy of all citizens. Retroactive application of that rule would not advance its purpose for the obvious reason that deterrence can operate only prospectively. Exclusion of the fruit of a random search, although important in protecting Indiana citizens from unreasonable searches and seizures, does not in any way serve to avoid an unjust conviction. To the contrary, exclusion of relevant and otherwise admissible evidence can prevent conviction where reliable evidence supports it. Because there is this cost to enforcing the exclusionary rule, it should be done only where appropriate to advance its purpose. * * *
[B]ecause the evidence in search and seizure cases is usually inherently probative and reliable, we see no reason to exclude it categorically if the issue has not been raised before the new ruling, and the officers seizing the evidence operated under the rules this Court had announced at the time. * * *
Conclusion. The trial court’s denial of Membres’s motion to suppress and its grant of the State’s mo-tion for turnover order are affirmed.
Shepard, C.J., and Dickson, J., concur.
Sullivan, J., dissents with separate opinion.
Rucker, J., concurs in part and dissents in part with separate opinion.[From Justice Sullivan's dissent] Our long-standing retroactivity rule dictates that new rules of criminal procedure apply to future trials and also to cases pending on direct appeal (or otherwise not yet final) where the issue was properly preserved in the trial court. * * *
Today the Court announces an exception to that retroactivity rule for cases involving warrantless searches of trash that implicate the new rule of Indiana Constitutional law announced in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005). In such cases, the new rule applies only if the issue was raised in the trial court before the new rule was announced. * * *
We should not create an exception for Litchfield to our long-standing rule on retroactivity based on the incorrect propositions that Enlow is precedent or that deterrence is the only purpose of the exclusionary rule. I respectfully dissent.
[Justice Rucker's 6-page dissent begins:] I agree that the trial court correctly denied Membres’ motion to suppress. On this point I concur with the majority opinion. But the majority charts new territory to this Court’s longstanding jurisprudence on the question of retroactivity. I would adhere to established precedent and as a result apply Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), retroactively. On this issue I respectfully dissent.
Ralph Belvedere v. State of Indiana, decided 3-2 - "For the reasons explained in Membres v. State, No. 49S02-0701-CR-33, ___ N.E.2d ___, slip op. at 11 (Ind. June 27, 2008), also decided today, “challenges to pre-Litchfield searches that did not raise Litchfield-like claims in the trial court before Litchfield was decided are governed by pre-Litchfield doctrine.” Because Belvedere’s challenge to this pre-Litchfield search was first raised after Litchfield was decided, Litchfield is not available to him in this appeal."
Posted by Marcia Oddi on June 27, 2008 02:16 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Court of Appeals issues 4 today (and 15 NFP)
For publication opinions today (4):
Bobby Robinson a/k/a Steven Smith v. State of Indiana - "We conclude that the trial court did not abuse its discretion in admitting evidence collected following Robinson’s arrest, as it was supported by probable cause. Moreover, we reject Robinson’s constitutional challenges to Indiana Code section 35-48-4-6(b)(2)(B) for the reasons cited by this court in Manigault, 881 N.E.2d at 687-90."
Term. of Parent-Child Rel. of L.B. and L.C.; Lanny B. v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. - "Based on the record before us, we cannot say that the juvenile court’s termination of Father’s parental rights to L.C. and L.B. was clearly erroneous. We therefore affirm the juvenile court’s judgment."
Travon E. Boyd v. State of Indiana - "Travon Boyd appeals his conviction for domestic battery as a class D felony.1 Boyd raises two issues, which we revise and restate as: I. Whether the domestic battery statute is unconstitutionally vague as applied in this case; and II. Whether the evidence is sufficient to sustain his conviction for domestic battery as a class D felony. We affirm."
In Surjit Singh, M.D. v. Diane Lyday, Betsy Calderhead, and Cara Nichols, a 32-page opinion, Judge Robb concludes:
We conclude the trial court improperly denied Singh’s motion for judgment on the evidence on the Patients’ claims for medical malpractice and gross negligence. We therefore remand with instructions that the trial court enter judgment on the evidence in favor of Singh on these claims. We also conclude the trial court abused its discretion in granting a new trial based on its decisions to exclude evidence at trial. We therefore remand with instructions that the trial court reinstate the jury’s verdict in favor of Singh on the Patients’ claim for battery. The issue of newly discovered evidence raised in the Patients’ motion to correct errors, which the trial court may address on remand, does not affect the insufficiency of the evidence presented at trial to support the Patients’ claims of medical malpractice and gross negligence. See, supra, Part II; see also, supra, note 13. Therefore, if the trial court chooses to grant the Patients’ motion to correct error based on their claim of newly discovered evidence, it should order a new trial on only their battery claim.NFP civil opinions today (7):
William G. Hunert v. Sherry M. Hunert (NFP) - "quently, the district court again denied Groves’ Motion
to Suppress. We affirm. * * * Concluding that neither the trial court’s determination of William’s income nor its apportionment of his daughter’s college expenses is clearly erroneous, we affirm."
Bedford Ear, Nose & Throat Clinic, Inc. v. Review Board of the Indiana Dept. of Workforce Development, and Brandie A. Gilson (NFP) - "Appellant Bedford Ear, Nose & Throat Clinic, Inc. (“Clinic”) appeals a ruling of the Review Board of the Indiana Department of Workforce Development (“Review Board”) affirming the Administrative Law Judge’s (“ALJ”) determination that Brandie Gilson voluntarily left her employment with the Clinic with good cause. We affirm. * * *
"In light of the circumstances surrounding Gilson’s continued employment at the Clinic, we conclude that the sexual comments and sexual advances made by Dr. Samaddar, as found by the Review Board, are such that would impel a reasonably prudent person to terminate their employment under similar circumstances and that Gilson’s reasons for terminating her employment were objectively related to her employment as a receptionist for Dr. Samaddar’s clinic. Furthermore, to the extent that the Clinic claims that Gilson lacked good cause to voluntarily terminate her employment because she failed to notify her employer of her dissatisfaction with her working conditions, we conclude that Indiana law has no such requirement for establishing good cause. The judgment of the Review Board is affirmed."
Debra L. Guyer (n/k/a Debra L. Stover) v. Stephen Guyer (NFP) - "Debra Guyer appeals the trial court’s judgment awarding her $24,880 relating to Steven Guyer’s failure to pay a portion of his son’s college expenses pursuant to the terms of a dissolution decree. The trial court’s judgment, though technically favorable to Debra, effectively granted Steven relief from judgment under Trial Rule 60(B)(8). We conclude that the trial court’s grant was an abuse of discretion because, based on the evidence presented, the trial court could not have concluded that Steven filed his motion for relief within a reasonable time."
Luiz Alves v. Old National Bank, f/k/a St. Joseph Capital Bank (NFP) - "Alves therefore could not rest upon his mere allegations, but was required to designate evidence that he gave the required written notice to Old National, that Old National owed him a duty and that it caused the termination of his employment and/or his removal from MEG. To the contrary, Alves asserted without clear evidentiary support that he gave constructive notice of his claim to Old National. His designated evidence established only that Old National loaned him money and that he agreed to repay it. No duty arose and therefore no duty was breached. For these reasons, we conclude that the entry of summary judgment was proper."
In Lawrence Gunkel and Judy Lynn Gunkel v. Renovations, Inc. by Wagler and Menno D. Wagler, et al (NFP), a 30-page opinion, Judge Kirsch's dissent begins:
Multiple motions. Multiple hearings. Multiple judges. Parties admitting they entered into a contract, then denying that they entered into a contract. Bifurcated trials. Inconsistent positions. Inconsistent rulings. Summary judgments granted. Summary judgments denied. Summary judgments granted but not followed. Three appeals. Eight years and still unresolved. Attorney fees in excess of the amount in controversy.In re the Marriage of Jeffrey Lee and Monica Lee (NFP) - "With regard to the valuation and division of the marital estate, the evidence of record supports the findings of the trial court and the findings support the judgment. As such, the property distribution order is not clearly erroneous. Likewise, the child support order is not clearly erroneous. Affirmed."It will soon be ten years since the Gunkels entered into a contract for construction of their new home. During this decade, they have not been served well by either their contractors or our legal system. Were Dante Alighieri alive today, this case would provide him with the material to add a tenth circle to his Inferno and call it “Litigation Hell.”
This is not a difficult case. It involves one set of homeowners, two contractors and one new house that leaked. New houses should not leak. The leaks were the fault of one or both of the contractors. The contractor or contractors that were at fault should fix the leaks or pay to have them fixed and pay for the damage that the leaks caused to the other property of the homeowners. To the extent that a contractor failed to perform the work set forth in contract, the contractor is liable for breach of contract. To the extent a contractor damaged other property of the homeowners during the performance of its work, the contractor is liable for negligence. Determine the relationship of the parties. Determine whether the contractors failed to perform the work as agreed. If so, determine the amount of the damages. Enter judgment. Next case.
Term. of Parent-Child Rel. of L.B., L.T., JC.C., and JS.C.; and S.C. (NFP) - "We therefore affirm the juvenile court’s judgment terminating Mother’s parental rights to L.C., L.B., Ja.C., Jas.C. and T.C."
NFP criminal opinions today (8):
State of Indiana v. Kelvin Calmes (NFP) - "The State of Indiana appeals the trial court’s grant of a motion to suppress filed by Kelvin Calmes. The State raises one issue, which we revise and restate as whether the trial court erred when it granted the motion to suppress. We affirm."
William T. Spurlock v. State of Indiana (NFP)
Cicero Offerle v. State of Indiana (NFP)
Eric B. Bannister v. State of Indiana (NFP)
Gary Lindsey v. State of Indiana (NFP)
Randall Thomas v. State of Indiana (NFP)
Steven J. Robbins v. State of Indiana (NFP)
Anissa Tyler v. State of Indiana (NFP)
Posted by Marcia Oddi on June 27, 2008 12:40 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - One Indiana case today from 7th Circuit
In U.S. v. Daniel Groves, Sr. (ND Ind., Judge Sharp), a 12-page opinion, Judge Rovner writes:
In this successive appeal, Daniel Groves challenges the district court’s denial of his Motion to Suppress Evidence, claiming that the ammunition which provided the basis for his conviction under 18 U.S.C. § 922(g)(1) was recovered from his apartment during an illegal search, in violation of the Fourth Amendment. In the first appeal, we remanded to the district court for various factual determinations and renewed consideration in light of the then-recent Supreme Court decision in Georgia v. Randolph, 547 U.S. 103 (2006). Subsequently, the district court again denied Groves’ Motion to Suppress. We affirm.
Posted by Marcia Oddi on June 27, 2008 11:22 AM
Posted to Indiana Courts
Ind. Gov't. - "Public access counselor says Muncie violated law"
Seth Slabaugh of the Muncie Star-Press reports:
MUNCIE -- The city of Muncie gave The Star Press "a number of problematic reasons" for denial of access to a proposed street-paving list for 2008, Indiana Public Access Counselor Heather Willis Neal has concluded.The PAC's Advisory Opinion has not yet been posted, but will show up in a few days at the end of this list.
AdvertisementResponding to the newspaper's formal complaint alleging the city violated the Access to Public Records Act (APRA), Neal wrote in an advisory opinion that Mayor Sharon McShurley and City Attorney Frank Gilkison clearly violated APRA and that City Controller Mary Ann Kratochvil likely violated both APRA and a law protecting public records from destruction.
"That's her opinion, not mine," said Gilkison, to whom the mayor referred questions on Tuesday. "I don't agree with that at all."
Kratochvil also disagreed with the opinion, saying she felt "extremely comfortable" regarding her actions. * * *
"Several of the claims made by the city are problematic," Neal wrote.
First, the city contended that the paving list was tentative, premature and not ready for publication.
"To the contrary, my predecessors and I have repeatedly advised and opined that draft documents are public records just as completed or finalized documents are public records," Neal wrote. "The city is free to mark the list with a 'draft' designation..."
Second, the city has alleged it does not yet know the budget for street paving.
"Again, this is not a listed exception to disclosure of records..." Neal wrote. "Third, this is also true for the mayor's contention that she has not yet had time to determine the criteria for street paving. Again, this is not a statutory exception to disclosure."
Finally, both the mayor and city attorney indicated the list was not ready for publication because it would generate controversy and create headaches for the city in the form of citizens calling the office.
"(That) not only is an invalid reason for denying access to public records, but it is contrary to the public policy of APRA, which states, 'Providing persons with information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information,'" Neal wrote.
Kratochvil's destruction of the proposed paving list "is likely not only a violation of APRA, which requires agencies to protect records from loss, mutilation or destruction, but also of state records retention laws," Neal wrote. "The list at issue here was created by a city employee and retained or maintained by a city department, namely the city controller. As such, it is a public record. Regardless of whether it must be disclosed, it remains a public record."
Gilkison told Neal the list was not a public record because it consisted of "intra-agency deliberative material," including materials that are "expressions of opinion or are of a speculative nature, and that are communicated for the purpose of decision making." * * *
In light of the paper's complaint, city attorneys will prepare a memorandum on how city department heads should handle future requests for public records, Gilkison said.
"Most documents are public," he said.
Posted by Marcia Oddi on June 27, 2008 10:03 AM
Posted to Indiana Government
Ind. Courts - "United States Senate Confirms William T. Lawrence as District Judge"
Updating yesterday's ILB on-the-spot entry about the Senate vote, the USDC for the Southern District of Indiana has this morning posted this press release that begins:
On Thursday, June 26, the United States Senate voted unanimously to confirm the appointment of the Hon. William T. Lawrence to the United States District Court for the Southern District of Indiana. Judge Lawrence had served as a United States Magistrate Judge in the Southern District of Indiana since November 2002 and is the first magistrate judge in the Southern District of Indiana to become a district judge. Judge Lawrence was nominated to the judgeship by President Bush following Judge John Daniel Tinder’s elevation to the Seventh Circuit Court of Appeals in late 2007.
Posted by Marcia Oddi on June 27, 2008 09:59 AM
Posted to Indiana Courts
Ind. Gov't. - "Crown Point hires Indy law firm to recover loan money"
Kathleen Quilligan reports today in the NWI Times in a story that begins:
CROWN POINT | The Crown Point Development Corp. will use Indianapolis-based law firm Ice Miller to attempt to recover $380,000 the city loaned to New York-based Plasmatronics.City Attorney David Nicholls said paperwork for litigation against the company has not been filed yet but he expects it will be filed soon.
In a June 6 letter to Nicholls, Ice Miller attorney Fred Biesecker outlines the scope of the legal work for which Ice Miller has been hired and how much it will cost the city. The letter explains the firm may pursue litigation against Plasmatronics Inc., Plasmatronics LLC, and company owners Linda A. Decker and Lonnie P. Lenarduzzi, who signed personal guarantees to obtain the loan.
The firm will charge the city hourly with attorney Phil Whistler's fee at $410 an hour and Biesecker's fee at $395 an hour. The hourly rates of the firm's associates who could work on the case range from $205 to $265 an hour.
In April, the Crown Point Redevelopment Commission and the Development Corp. both unanimously voted to pursue all available avenues to recover the $380,000 after the company terminated its relationship with the city.
Posted by Marcia Oddi on June 27, 2008 09:52 AM
Posted to Indiana Government
Ind. Law - Impact of the decision in Heller on Indiana (and Chicago)
According to two stories today, the impact of the SCOTUS's decision yesterday in District of Columbia v. Heller on Indiana will be minimal.
John Murray has this report in the Indianapolis Star. Some quotes:
Legal experts and advocates on both sides of the gun-control debate agreed Thursday that Hoosiers were likely to see little fallout from the Supreme Court's landmark ruling.Lesley Stedman Weidenbener of the Louisville Courier Journal writes:Indiana law doesn't allow cities and counties to pass restrictions as severe as the District of Columbia's ban on handgun possession, thrown out Thursday in a split decision. While upholding an individual's right to own a firearm, the court left room for limits on more powerful guns and controls including licenses and permits.
Hoosier legislators said yesterday that the U.S. Supreme Court's ruling should have little or no bearing on the state's current laws.[More] See this story from the Chicago Sun-Times.Indiana doesn't require permits or licenses to purchase handguns and puts few restrictions on who can obtain them -- although state law does require a license to carry a handgun.
The General Assembly has also squelched local governments' ability to limit guns, authorizing them to impose only the barest of restrictions, such as bans on guns in public buildings and local permits for gun dealers.
"I think this decision just shores up what we've been doing all along," said state Sen. Johnny Nugent, R-Lawrenceburg, who is a member of the National Rifle Association board of directors. "We've taken the approach in Indiana that we need to defend the Second Amendment of the U.S. Constitution, which is what I believe the Supreme Court has reaffirmed now."
Posted by Marcia Oddi on June 27, 2008 09:45 AM
Posted to Indiana Law
Thursday, June 26, 2008
Ind. Decisions - Supreme Court issues a mini-slew of new opinions late today
In addition to the opinion in Jeter (here), issued earlier, the Supreme Court has now posted five additional opinions.
In Nicole L. Huss v. David M. Huss, a 14-page, 5-0 opinion in a case argued 1/31/08, Justice Dickson writes:
In seeking dissolution of their marriage, the husband and wife each declared that there were four children born of their marriage, and each requested both temporary and permanent custody of all four children from the dissolution court. But while the dissolution case was pending in Adams Circuit Court, the wife initiated a separate paternity action in Wells Circuit Court and obtained a final order establishing that another man was the biological father of one of these children and granting her custody of that child. The wife then sought to use the paternity judgment as a basis to dismiss in the dissolution case all custody proceedings regarding said child. Following a contested final hearing, the Adams Circuit Court ordered the marriage dissolved, divided the marital property, awarded the husband custody of all four children, and ordered child support. The Court of Appeals, in a memorandum decision, vacated the portions of the dissolution decree pertaining to the said child but affirmed the award of custody of the three other children to the husband. Huss v. Huss, 01C01-0504-DR-37 (July 25, 2007). We granted transfer and now affirm the dissolution court's custody determination. * * *In Keith Neff v. State of Indiana, a 6-page, 5-0 opinion, Justice Sullivan writes:Conclusion. Having previously granted transfer, we summarily affirm the Court of Appeals determination of the wife's appellate allegations of improper denial of her Trial Rule 53.1 request and of fundamental unfairness and violation of due process. Finding that the dissolution court was authorized to determine the custody of all four children of the parties' marriage, including the child whose paternity was separately found to be in a man other than the husband, and that the wife has failed to establish that evidence failed to support the findings and judgment of the dissolution court, we affirm the dissolution and custody judgment of the Adams Circuit Court.
Our opinion in Robinson v. State discussed the procedures available to a prisoner for correcting a sentence erroneous on the face of the judgment of conviction. 805 N.E.2d 783 (Ind. 2004). This opinion sets forth the proper handling of three collateral issues that have arisen in the context of Keith Neff’s effort to correct what he alleged was an incorrect calculation of “credit time” to which he was entitled: (1) the absence of a judgment of conviction; (2) the proper calculation of “earliest release date”; and (3) the necessity of invoking the offender grievance process before seeking judicial review. * * *Charles Young v. State of Indiana (363) - "It is, of course, possible that a prisoner could accidentally be deprived of earned credit time toward his sentence. The presumption in Robinson has the effect of treating such an accident as merely an administrative error that can be addressed by the Department of Correction (DOC) easily and efficiently through its offender grievance process. It is for this reason that we hold today in Neff v. State, No. 49S02-0806-CR-362, slip op. (Ind. June 26, 2008), that a pris-oner must show that administrative remedies have been exhausted before pursuing a remedy in the state court system."Conclusion. For purposes of filing a motion to correct erroneous sentence, an abstract of judgment may function in place of a judgment of conviction in a county, such as Marion County, in which trial courts do not regularly issue formal judgments of conviction. Neff concedes that he initially incorrectly calculated the time remaining in his sentence and is therefore not entitled to relief. We hold that where DOC mistakenly fails to give an offender earned credit time, the offender must exhaust administrative remedies before seeking relief from a court.
Charles Young v. State of Indiana (364) - "We offer Young the same admonishment in this case that he receives today with regard to another appeal. See Young v. State, No. 27S02-0608-PC-363, slip op. (Ind. June 26, 2008). If Young hopes to prevail on his claim after he has properly presented it to the Court via post-conviction procedures, he must present evidence supporting each portion of it with his proposed successive petition for post-conviction relief filed along with his Successive Post-Conviction Re-lief Rule 1 Petition Form pursuant to P-C.R. 1(12) (if this were Young’s first post-conviction pe-tition, he would present it directly to the post-conviction court). Here, for example, Young must show in the first place what the relevant DOC administrative grievance procedures are, and then that he has exhausted them at all levels. Young must also present evidence of his diploma and the credentials of the school that awarded it. He must show that he meets each requirement of any necessary statute (for example, I.C. § 35-50-6-3.3). Just as in his other appeal decided today, even if Young’s claim were properly before a court, the court would not be able to decide it without more information."
In Michael D. Smith v. State of Indiana, a 7-page, 4-1 opinion, Justice Sullivan writes:
A jury convicted defendant Michael D. Smith on four counts of child molesting. The trial court ordered four consecutive sentences of 30 years each, a total executed sentence of 120 years. Based on the character of the offender and the nature of the offenses, we revise the sentence to a total of 60 years. * * *Note: These cases were granted transfer with opinion: Smith, Neff, Young, and Young.Shepard, C.J., and Rucker, J., concur.
Boehm, J., concurs in the result.
Dickson, J., dissents with separate opinion. [which concludes] I am not convinced that this case is sufficiently rare or exceptional to warrant appellate intrusion into the trial court's sentencing determination.
Posted by Marcia Oddi on June 26, 2008 06:05 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Law - More on golf carts in Lebanon
Tim Evans comprehensive front-page Indianapolis Star story Sunday, June 22nd (see ILB summary), headlined: "Debate rolls on: Hoosier towns mixed on regulation of golf carts, which advocates see as fuel-saving alternative," began:
LEBANON, Ind. -- Nadine Urban gets more upset every time she looks at her parked golf cart outside her Boone County home.A story on The INDY Channel, 6 News this evening reports:Gas prices have topped $4 a gallon, and Urban, a retiree, would like to use it to run errands around Lebanon. She was able to do that after the town adopted a 2006 ordinance allowing golf carts on local streets.
But a ticket from a State Police trooper and a subsequent local court ruling forced Urban to park her electric cart -- and town officials to shelve their ordinance.
LEBANON, Ind. -- A Boone County woman thought she was within the law when she drove her golf cart to the post office, but it cost her a heavy fine.For more on golf carts, check this long list of entries from the ILB.The legality of an ordinance that once allowed golf carts on Lebanon roads is now in question, 6News' Renee Jameson reported.
Nadine Urban rides her electric golf cart on the grass of her Lebanon home because she can't drive it anywhere else, but that wasn't always true. * * *
Last year, Urban got a permit from the city that allowed her to drive the golf cart in town, with certain restrictions.
When she returned home from a trip on the cart recently, an Indiana State Police trooper issued her a ticket, contending what she was doing is dangerous and that she was violating state law.
A local judge later agreed, but Urban's husband said he doesn't think what happened is right. * * *
City officials declined an on-camera interview Wednesday, but the Lebanon's clerk-treasurer told Jameson that the ordinance in question is essentially on hold and that no new permits are being issued.
Posted by Marcia Oddi on June 26, 2008 05:48 PM
Posted to Indiana Law
Ind. Courts - Nominee to SD Indiana seat being voted on this afternoon
The nomination of U.S. Magistrate Judge William T. Lawrence to serve as U.S. District Court Judge for Indiana's southern district is being voted on by the full Senate at this moment. You may watch on C-Span 2.
[5:00 PM EDT] Passed, 97-0.
Posted by Marcia Oddi on June 26, 2008 04:53 PM
Posted to Indiana Courts
Ind. Decisions - Supreme Court decides one today
In Darryl Jeter v. State, a 12-page, 5-0 opinion in a case argued 12/13/07, Justice Rucker writes:
A jury found Darryl Jeter guilty of murder in the shooting death of Indiana State Trooper Scott Patrick. He was also found guilty of auto theft, a Class D felony. Upon the jury’s recommendation of life without parole the trial court sentenced Jeter accordingly. The trial court also sentenced him to three years for the auto theft conviction to be served consecutively. In this direct appeal Jeter raises three issues, which we recast as four and rephrase as follows: (1) did the trial court err in concluding that Jeter’s attempt to peremptorily challenge a prospective juror violated Batson v. Kentucky, 476 U.S. 79 (1986); (2) did the trial court abuse its discretion by replacing a seated juror with an alternate; (3) was an eyewitness’s in-court identification of Jeter unduly suggestive; and (4) did the trial court err in the admission of certain testimony. We affirm.
Posted by Marcia Oddi on June 26, 2008 03:11 PM
Posted to Ind. Sup.Ct. Decisions
Courts - More on the Heller 2nd Amendment decision today
Here, thanks again to SCOTUSBlog, is the 157-page opinion.
Tony Mauro of Legal Times has a post that begins:
Supreme Court: Scalia and Stevens Duke It OutTom Goldstein of SCOTUSBlog has a useful entry headed "My Sense of the Bottom-Line from Heller."It was an extraordinary 23-minute-long scene at the Supreme Court this morning as Justice Antonin Scalia read from his majority opinion in D.C. v. Heller and then Justice John Paul Stevens read from his unusually pointed dissent. Both cast aspersions on each other's interpretation of the Second Amendment and relevant precedents, and spectators were left with a lot of reading to do to determine what the justices actually decided. The Court had clearly declared an individual right to keep and bear arms under the Second Amendment; Scalia said it could be limited, even rattling off the kinds of regulations that might be acceptable. But Stevens, in dissent, seemed to say that the majority's ruling was broader than Scalia was making it out to be.
"Do not accept the summary you have just heard," Stevens said at one point. Earlier, Scalia told spectators they had to slog through 154 pages of opinions to really understand the Court's position.
Check back for additional items.
Posted by Marcia Oddi on June 26, 2008 12:36 PM
Posted to Courts in general
Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)
For publication opinions today (3):
In Knightstown Banner v. Town of Knightstown, Governmental Insurance Managers Inc., et al, an opinion on rehearing on the issue of attorney fees, Judge Friedlander writes:
It is enough to say that GIE and GIM were aligned with the Town of Knightstown (the Town) as appellees in an appeal from an order proclaiming them jointly and severally liable for an award of attorney fees to the Knightstown Banner (the Newspaper). Those attorney fees stemmed from the Newspaper’s successful lawsuit concerning its request under the Indiana Access to Public Records Act (APRA) to view the settlement agreement between the Town and a former employee (the employee) in a civil rights lawsuit filed by the employee. We write here toaddress the question whether GIE and GIM, which must be viewed as a single entity for our purposes here, should share joint and several liability with the Town for attorney fees and costs. * * *In Janet L. Dillard v. Donald S. Dillard , a 12-page opinion, Judge Darden writes:GIE and GIM’s role in the events leading to litigation, and in conducting the litigation itself, was far from passive. Clearly, GIE and GIM were necessary parties. * * *
GIE and GIM contend they should not be held liable for attorney fees because they are not a public agency within the meaning of APRA, thus its provisions do not apply to them. This court has indicated such is not the case. * * *
Finally, GIE and GIM claim they are not liable for attorney fees because, with respect to GIE and GIM, the Newspaper was not a substantially prevailing party in Knightstown I. * * * Again, the significant factor here is the close relationship between the Town and GIE and GIM with respect to this litigation. Along with the Town, GIE and GIM actively sought to prevent disclosure of the settlement agreement, which in turn triggered the Newspaper’s lawsuit.
For the foregoing reasons, the trial court did not err in imposing joint and several liability upon GIE and GIM with respect to the award of attorney fees and costs.
Janet Dillard (“Wife”) appeals the trial court’s order granting Donald Dillard’s (“Husband”) motion for relief from judgment, thereby modifying the parties’ property settlement. We reverse.Donald Singleton v. State of Indiana - "On appeal of the denial of his petition for post-conviction relief, Singleton contends that his trial counsel was ineffective for failing to object to the State’s late filing of the habitual offender count and that his appellate counsel was ineffective for failing to raise this issue on direct appeal. Concluding that trial counsel’s performance was not deficient in failing to challenge the late amendment and that appellate counsel also did not perform deficiently in failing to raise this issue, we affirm."Issue. Whether the trial court abused its discretion when it modified the parties’ property settlement agreement, which was incorporated in the decree of dissolution. * * *
We find that Husband has made no showing of exceptional circumstances that come within the purview of Trial Rule 60(B). Husband also has failed to show that the circumstances were not a result of his fault or negligence where Husband knew—as early as May of 2006—that there would be tax penalties for his early withdrawal. See Goldsmith, 761 N.E.2d at 474. Accordingly, we find that the trial court abused its discretion in granting Husband relief from the decree of dissolution.
NFP civil opinions today (3):
Jesse Sutton v. Robert and Julia Gardner / United Services Automobile Ass'n (NFP) - "Based upon the foregoing facts, we find that Robert presented reasonable sufficient evidence that could support a jury determination that he suffered damages considerably in excess of his $13,000.00 of medical specials. Robert and his witnesses testified at length that his employment and personal relationships were negatively affected by the accident. We find ample proper bases upon which the jury’s award can be explained. Thus, we find that the jury’s award was not excessive and, further, that the trial court did not abuse its discretion."
Dustin Southard v. Michelle Southard (NFP) - "Dustin Southard (Father) appeals the trial court’s order dissolving his marriage to Michelle Southard (Mother). As the sole issue on appeal, Father contends that the trial court abused its discretion in awarding physical custody of the parties’ minor child, C.S., to Mother. We affirm."
Scotty A. Godbey v. Andrea D.Godbey (NFP) - "We conclude that the trial court did not abuse its discretion when it ordered Husband to continue to pay for one-half of Wife’s daughter’s car loan payment. We also conclude that the trial court did not abuse its discretion when it reallocated Wife’s retirement plan. However, we must agree with Wife’s argument that the trial court made a mathematical error in determining the equalization payment due to Husband. Therefore, we remand with instructions to recalculate the property distribution in accordance with this opinion."
NFP criminal opinions today (5):
Donald Jess Smith, Jr. v. State of Indiana (NFP)
Paul Fox v. State of Indiana (NFP)
Andres Hernandez v. State of Indiana (NFP)
Lonnie Lee Williams v. State of Indiana (NFP)
Jack Chitwood, Jr. v. State of Indiana (NFP)
Posted by Marcia Oddi on June 26, 2008 11:30 AM
Posted to Ind. App.Ct. Decisions
Environment - More on: Plan Commission rejects request to move Wednesday's meeting to a larger location
Updating this ILB entry from June 21, Pam Tharp reports on the meeting under the headline "Seething crowd in Union County sees CAFO ordinance OK'd." Some quotes:
LIBERTY, Ind. -- The Union County Area Plan Commission on Wednesday recommended an ordinance governing the locations of large livestock farms, but their decision didn't please the angry crowd gathered in the 4-H Building.Most of the 80 people attending don't want the 2,000-cow megadairy proposed for Harrison Township and they wanted the plan commission to adopt stricter setbacks and other rules governing the operation of concentrated animal feeding operations, known as CAFOs.
A pickup truck outside the building bore the sign "Megadairy -- Megamess." * * *
The plan commission voted 6-1 to recommend the ordinance to the commissioners, after increasing the setback for churches to a half-mile from large livestock operations, so it matched the half-mile setback for public-use areas such as parks. * * *
The plan commission's recommendation means the ordinance now goes before the Union County Board of Commissioners, which has the final say. The commissioners may approve it, reject it and return it to the plan commission or amend it.
How soon the commissioners will consider the ordinance is uncertain, Commission President Allen Paddock said. Paddock was the only county commissioner in attendance Wednesday.
"It depends on how soon (area plan) gets it to us and whether it has to be advertised," Paddock said. "I expect we'll at least talk about it on Monday."
Resident Krista Carr asked for a larger setback for public-use areas such as Whitewater Memorial State Park and Brookville Lake. Another state reservoir was contaminated by a spill from a CAFO, which caused a "massive" problem, Carr said.
"A good percentage of the people who come here come for the parks. If we don't protect our lakes, our economy will be shot. A half-mile is just not enough," Carr said.
Posted by Marcia Oddi on June 26, 2008 10:51 AM
Posted to Environment
Ind. Law - "Key to safe-haven law is spreading the word"
Lesley Stedman Weidenbener of the Louisville Courier Journal reports today on Indiana's Safe Haven Law. Some quotes:
Since Indiana enacted the law, the National Safe Haven Alliance has recorded six lives saved in the state and 20 illegal abandonments, of which at least seven were fatal.The law is found at IC 31-34-2.5.All states now have safe-haven laws, which the alliance said have saved the lives of at least 1,000 infants nationwide.
Indiana's law allows a parent to give up an infant who is less than 45 days old confidentially at a hospital emergency room, police station or firehouse. The law protects the parents from arrest or prosecution for abandonment.
It also makes medical treatment and social services available to the birth mother and puts the child in the custody of the Indiana Division of Family & Social Services Administration, which places the infant in a foster or pre-adoptive home.
"Safe haven is for the young mother, the 20-something mother, the 30-something mother who loves the child, chooses life, but may not want to go through all the ramifications of selecting the adoptive parents," Hammond said. "They just want to have that child placed with a loving couple."
Posted by Marcia Oddi on June 26, 2008 10:42 AM
Posted to Indiana Law
Courts - Still more on: Final opinion days from the SCOTUS
Check the ever excellent SCOTUSBlog for the details. Only three cases left this term.
Davis v. Federal Election Commission - Millionaire's amendment. "The ruling below, which upheld the law, is reversed and remanded."
Morgan Stanley Capital Group Inc. v. Public Utility District No. 1 of Snohomish County - "The ruling below, which remanded the case to FERC for further review, is affirmed and remanded."
District of Columbia v. Heller - "The ruling below, which struck down the [gun possession] provisions in question, is affirmed." This is a very bigie. Tom Goldstein of SCOTUSBlog notes: "It is striking that the decision is not clouded by ambiguity created by separate opinions. One opinion on each side." Then: "Apologies - there is a second dissenting opinion, but only one majority." Here, thanks again to SCOTUSBlog, is the 157-page opinion
That should do it for this term..
Posted by Marcia Oddi on June 26, 2008 10:01 AM
Posted to Courts in general
Ind. Law - "New laws take effect on July 1"
Ed Ronco of the South Bend Tribune has this story on new laws today. The subhead is "Great Lakes protection, breast-feeding support, crash scene aid among measures." Take alook.
Posted by Marcia Oddi on June 26, 2008 09:53 AM
Posted to Indiana Law
Ind. Decisions - More on: Judge Hamilton holds SB 258 unconstitutional
Updating this ILB entry from Tuesday on U.S. District Court Judge David Hamilton's ruling in the case of John Doe v. Prosecutor, Marion County (available here via the Evansville Courier & Press), a law professors' blog, The Volokh Conspiracy, had an interesting discussion of the opinion yesterday.
Posted by Marcia Oddi on June 26, 2008 08:34 AM
Posted to Ind Fed D.Ct. Decisions
Ind. Law - "Ind. law bars guns at work"; potential impact of Heller
Bryan Corbin of the Evansville Courier & Press reports today in the aftermath of the shootings this week at a plastics plant across the river in Henderson, Kentucky:
INDIANAPOLIS — Unlike their Kentucky counterparts, employers in Indiana generally have the right to forbid workers from bringing firearms onto company property, a legal expert said.Heller. At 10 AM today the SCOTUS is expected to hand down it opinion in the 2nd Amendment case of District of Columbia v. Heller, which may impact current and future gun laws. It is anticipated that Justice Scalia will author the opinion.Hoosiers who are not felons and who meet other criteria have the legal right to obtain handgun permits; but the right to carry firearms is not absolute on private property.
"My understanding is an employer can forbid his employees from possessing a firearm on company property even though they are otherwise lawfully licensed to carry," said law professor Henry Karlson of the Indiana University School of Law in Indianapolis.
Similar provisions apply in most states. According to published reports, six states — including Kentucky — have carved out exceptions to such laws.
In essence, the exceptions bar employers from prohibiting employees from keeping guns locked in their vehicles in the company parking lot, as long as the weapons are not brought into the workplace itself.
Indiana law does not have such an exception however, so if an employer wants to enact a gun-free-workplace policy and penalize any workers who violate it, then the firm is free to do so.
Karlson said there has been a "serious nationwide debate" since the April 2007 Virginia Tech mass shooting at Virginia Tech whether gun-free-zone policies at workplaces or campuses are effective or counterproductive in deterring potential gun violence and shootings.
"Unless you search every automobile going into and out of a plant, there is no way to prevent a crime (such as the one Wednesday in Henderson)," Karlson said. "Clearly, if a person intends to shoot a group of people, getting fired for having a gun will not be one of his concerns."
Posted by Marcia Oddi on June 26, 2008 08:20 AM
Posted to Indiana Law
Wednesday, June 25, 2008
Ind. Gov't. - Competition fierce for Fort Wayne's Lincoln Museum
Updating these earlier ILB entries, Angela Mapes Turner reports today in the Fort Wayne Journal Gazette:
The local group fighting to keep Fort Wayne’s Lincoln Museum collection in Indiana faces powerhouse opposition from four major Washington institutions to relocate the material.[Updated] This story by Jacqueline Trescott appeared in June 25th Washington Post.The Library of Congress, the National Museum of American History, Ford’s Theatre and President Lincoln’s Cottage have formed a partnership to obtain the collection from the museum, which closes Monday after 77 years. * * *
Early this month, the Allen County Public Library and the Indiana State Museum announced a coalition to keep the collection in Indiana. Those organizations are supported by the Indiana Historical Society, Indiana State Library and Friends of the Lincoln Museum.
Ian Rolland, former chairman of the Lincoln Financial Group and leader of the local drive, said he wasn’t surprised to hear the Washington players were in the game.
“We knew the competition was going to be tough,” he said. “I don’t think we need to be afraid of that kind of competition.”
Those hoping to bring the collection to Washington tout the area’s ability to draw large crowds of tourists.
“There really isn’t any group that can match the visitorship and financial stability of the Washington group,” said John Sellers, a Lincoln specialist at the Library of Congress.
Sellers calls Washington the “natural place” for the collection.
“It is where Lincoln became famous and made his mark,” Sellers said. “It is a natural place because the assassination happened here. It is a natural place because of the wealth of material related to Lincoln and the assassination.”
Those same arguments, though, can be turned around in Indiana’s favor, said Geoff Paddock of Fort Wayne, a board member of the Friends of the Lincoln Museum.
Lincoln spent his formative years in the Midwest and the collection was put together in Indiana, Paddock said.
The foundation board plans to narrow the proposals in the fall, invite the finalists to meet with the curators in Fort Wayne and then make site visits to the competing groups. A representative of the foundation said applicants ranged from small, not-for-profit institutions interested in one or two items to the nationally known institutions.
Paddock believes a visit would go a long way to convincing the Lincoln Financial Foundation that Indiana should be the collection’s home.
“A site visit would give us an opportunity to really showcase our proposal,” he said.
The museum’s collection, estimated at $20 million, includes a signed copy of the Emancipation Proclamation and a signed copy of the Thirteenth Amendment that abolished slavery, one of 350 documents in the collection signed by Lincoln.
Posted by Marcia Oddi on June 25, 2008 02:26 PM
Posted to Indiana Government
Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)
For publication opinions today (2):
In Burns-Kish Funeral Homes, Inc. v. Kish Funeral Homes, LLC, a 20-page opinion re an interlocutory appeal, Judge Vaidik writes:
Burns-Kish Funeral Homes, Inc. is a family-run funeral home in northwest Indiana that has been in existence for a century.In State of Indiana v. John M. Dunn , a 23-page opinion (including a concurrence in result), Judge Vaidik writes:When part of the Kish family broke off and opened up a competing funeral home down the road from the Burns-Kish Munster, Indiana, location, litigation by part of the Burns family ensued. Burns-Kish Funeral Homes, Inc., Thomas J. Burns, and Jean Burns (collectively “Plaintiffs”) now appeal the trial court’s denial of their Verified Application for Preliminary Injunction against Kish Funeral Homes, LLC, Kevin Kish, and Patricia Kish (collectively “Defendants”) and the appointment of a custodian over Burns-Kish pending a hearing on Patricia Kish’s Counter-Claim for Judicial Dissolution of Burns-Kish.
Specifically, Plaintiffs argue that because Kevin Kish was an officer of Burns-Kish, he owed a fiduciary duty to the corporation and that he breached that duty when he made plans to open his own funeral home, Kish Funeral and Cremation Services; that the trial court erred in not considering evidence that Kish Funeral and Cremation Services would cause confusion and irreparable harm to Burns-Kish; and that the trial court erred in appointing a custodian over Burns-Kish because it cited the wrong statute.
Because the trial court found that Kevin Kish was not an officer of Burns-Kish and the evidence supports this finding, we conclude that Kevin does not owe a fiduciary duty to Burns-Kish and is free to compete with his former employer. In addition, we conclude that the trial court properly excluded evidence from Plaintiffs’ expert on the topic of confusion between the two funeral homes because he was not properly qualified and also properly excluded evidence from Thomas Burns on the topic of confusion. Although the trial court cited the receivership statute in its conclusions, it also cited and properly applied the custodian statute. We therefore affirm the trial court.
The State’s construction of a median strip that makes the route of travel to a business property more circuitous is not a compensable taking. We therefore reverse the trial court’s partial summary judgment in favor of business owner John M. Dunn against the State and the subsequent damages awarded to Dunn by a jury. * * *Dunn filed an inverse condemnation action against the State, alleging that the erection of the median “has completely eliminated all access to the Hotel and Subject Property from the southbound lane of Green River Road,” as it “prevents all left-hand turns from the southbound lanes of Green River Road into the Hotel’s vehicular entrance.” Therefore, according to Dunn, the median “substantially and materially limited and impaired vehicular access to the Subject Property and vehicular egress from the Subject Property,” and this constitutes “a taking of [his] property without just compensation.” He sought monetary compensation for the taking. The State answered and acknowledged that the median “prohibit[ed] left hand turns to and from Green River Road and the public service road.” However, the State contended that Dunn is not entitled to compensation as a matter of law because the erection of medians resulting in circuitous travel to a business is conducted according to the State’s police powers and does not effect a compensable taking. * * * The jury returned a verdict in favor of Dunn in the amount of $3,650,000, and the trial court entered judgment accordingly. * * *
We find one issue dispositive: whether the trial court erred as a matter of law in granting partial summary judgment in favor of Dunn and against the State when the State built a median that forces traffic moving in certain directions to travel a more circuitous route to and from Dunn’s business property. * * *
We recognize that another panel of this Court recently authored State v. Kimco of Evansville, Inc., 881 N.E.2d 987 (Ind. Ct. App. 2007), reh’g denied, trans. granted, an appeal involving another Evansville business owner’s inverse condemnation action in response to the median on Green River Road. * * * In any event, our Supreme Court recently granted transfer in Kimco, thereby vacating the opinion.
In conclusion, landowners have no property right to the free flow of traffic past their properties. Thus, the construction of a median in a roadway that causes traffic traveling to and from an abutting property to travel a circuitous route does not constitute a compensable taking under Indiana eminent domain law. Therefore, Dunn was not entitled to judgment as a matter of law on the issue of whether he suffered a compensable taking, and the trial court erred in granting Dunn’s motion for partial summary judgment. Reversed.
NFP civil opinions today (3):
The Term. of Parent-Child Rel. of A.B.(child) and Cheryl B. (mother) and Jon R. (father) v. Dept. of Child Svcs. (NFP) - "Appellant Jon R. (“Father”) appeals the involuntary termination of his parental rights to his son A.B. We affirm."
Mark Gallagher v. Kathleen Gallagher (NFP) - "Mark Gallagher (“Husband”) appeals the trial court’s order as to the division of assets and debts in the dissolution of his marriage to Kathleen Gallagher (“Wife”). Husband raises two issues, which we consolidate and restate as whether the trial court abused its discretion in dividing the marital assets and debts. We affirm in part, reverse in part, and remand."
Estate of Elsie F. Powell, Sandra K. Bennett, Judith J. Short, et al v. Neva M. Caplinger (NFP) - "In conclusion, Neva’s position as Elsie’s guardian and attorney-in-fact, combined with Neva’s actions of withdrawing money from the joint accounts prior to Elsie’s death, gave rise to a presumption of undue influence with regard to the transactions in question. However, Neva presented sufficient evidence from which the trial court could have concluded that Neva successfully rebutted that presumption. Affirmed."
NFP criminal opinions today (2):
Paul Mayes v. State of Indiana (NFP)
Quentaun Speller v. State of Indiana (NFP)
Posted by Marcia Oddi on June 25, 2008 12:52 PM
Posted to Ind. App.Ct. Decisions
