Thursday, August 07, 2008
Ind. Decisions - "Circuit Court rejects suit opposing religion in vets care"
The 7th Circuit's decision 32-page decision yesterday in the case of Freedom from Religion Foundation v. Nicholson, out of Wisconsin, is the subject of an AP story today in the Fort Wayne Journal Gazette. Some quotes:
MADISON, Wis. – Taxpayers cannot sue the U.S. Department of Veterans Affairs for incorporating religion into its health care programs for the nation's veterans, an appeals court has ruled.The 7th Circuit Court of Appeals ruled Tuesday the Madison-based Freedom From Religion Foundation and three of its members have no legal standing to bring the case.
The group was trying to end the department's practice of asking patients about their religion in "spiritual assessments," its use of chaplains to treat patients, and drug and alcohol treatment programs that incorporate religion. It claimed those practices violated the separation of church and state.
But the court ruled that federal taxpayers cannot challenge those expenditures. The court cited a U.S. Supreme Court decision last year in which the same group was not allowed to sue over President Bush's faith-based initiative.
In that case, the court ruled 5-4 the executive branch cannot be sued by taxpayers for expenses that allegedly promote religion. Cases can only be brought when the questionable expenditures are explicitly authorized in a congressional spending bill, the court ruled.
Congress never authorized spending on the chaplain services, pastoral care and other programs challenged, the 7th Circuit ruled.
Posted by Marcia Oddi on August 7, 2008 01:30 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)
For publication opinions today (2):
In LHT Capital LLC v. Indiana Horse Racing Commission, et al. , a 19-page opinion, Judge Brown writes:
LHT asserts that the Commission demanded a $15 million transfer fee. In an August 6, 2007 letter to the Commission’s counsel, counsel for Indiana Downs and LHT complained regarding the Commission’s “illegal attempts to extract $15 million or more from our client.” Indiana Downs and LHT included a draft complaint with the letter and argued that the Commission’s “transfer tax” for non-controlling interests [ILB - but authorized by an emergency rule of the commission] was not authorized by the legislature and was unconstitutional. * * *In Craig Cross v. Victoria Cross , a 17-page, 2-1 opinion, Judge Brown writes:The issue is whether the trial court abused its discretion by granting the motion to dismiss for failure to exhaust administrative remedies. * * *
Failure to exhaust administrative remedies deprives the trial court of subject matter jurisdiction. Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979, 984 (Ind. 2005). Under the Administrative Orders and Procedures Act (“APOA”), “[a] person may file a petition for judicial review under this chapter only after exhausting all administrative remedies available within the agency whose action is being challenged and within any other agency authorized to exercise administrative review.” Ind. Code § 4-21.5-5-4(a). Moreover, a person may obtain judicial review only of an issue that was raised before the administrative agency. Ind. Code § 4-21.5-5-10. * * *
On appeal, LHT argues that the trial court erred by dismissing its petition for judicial review because: (1) it exhausted its administrative remedies by raising the constitutionality and legality of the Emergency Rule before the Commission and by filing a timely petition for judicial review; and (2) it was not required to exhaust its administrative remedies because doing so would be futile and because it is challenging the rule as facially invalid and unconstitutional. * * *
LHT also argues that it was not required to exhaust its administrative remedies because the Emergency Rule was facially invalid or unconstitutional. Under some circumstances, the Indiana Supreme Court has concluded that a litigant may bypass the exhaustion of administrative remedies where “a statute is void on its face,” and “if an agency’s action is challenged as being ultra vires and void.” Ind. Dep’t of Envtl. Mgmt. v. Twin Eagle LLC, 798 N.E.2d 839, 844 (Ind. 2003). * * *
However, unlike both Tioga Pines and Twin Eagle, LHT did not file a declaratory judgment action challenging the regulation; rather, LHT brought a petition for judicial review of the Commission’s order allowing it to transfer ownership of its shares of Indiana Downs. * * *
Because LHT’s arguments regarding the validity of the Emergency Rule are mainly issues of law, we might have reached a different result if LHT had simply filed a declaratory judgment action rather than pursuing the settlement with the Commission. * * * However, having pursued the settlement with the Commission and having failed to present its arguments regarding the validity of the Emergency Rule, LHT failed to exhaust its administrative remedies.
In summary, we conclude that LHT did not argue to the Commission that the Emergency Rule was invalid and unconstitutional. LHT’s failure to raise the issue with the Commission is not excused by futility or by its challenge to the constitutionality of the rule. Because LHT failed to exhaust its administrative remedies, the trial court did not have subject matter jurisdiction and properly granted the Commission’s motion to dismiss. * * * Given our resolution of this issue, we express no opinion on LHT’s argument that the Emergency Rule is facially invalid and unconstitutional.9 For the foregoing reasons, we affirm the trial court’s grant of the motion to dismiss. Affirmed.
Craig Cross appeals the trial court’s grant of Victoria Cross’s petition for modification of child support and the denial of his petition to claim their children for tax exemption purposes. Craig raises five issues, which we consolidate and restate as: I. Whether the trial court abused its discretion by granting Victoria’s motion to withdraw admissions; II. Whether the trial court abused its discretion by granting Victoria’s petition for modification of child support; and III. Whether the trial court erred when it denied Craig’s petition to claim their children for tax exemption purposes. We affirm in part, reverse in part, and remand. * * *NFP civil opinions today (0):For the foregoing reasons, we affirm the trial court’s grant of Victoria’s motion to withdraw admissions, its exclusion of V.E.C.’s SSI from its determination of Craig’s child support obligation, and its denial of Craig’s petition to claim the children for tax exemption purposes. We reverse the trial court’s order crediting Victoria for her daycare expenditure and remand for proceedings consistent with this opinion. In this regard, the trial court is free to enter a written finding articulating its reasons for deviating from the Child Support Guidelines or, alternatively, to adjust Craig’s child support obligation without crediting Victoria for the daycare expenditure.
MATHIAS, J. concurs
BAKER, C. J. dissents in part with separate opinion [which begins] I respectfully dissent from the majority’s conclusion regarding Victoria’s weekly childcare expenses. I believe that the majority’s application of the Child Support Guidelines is overly literal. The record herein reveals that Victoria was a full-time caregiver for her disabled daughter and a part-time caregiver for a patient with Alzheimer’s Disease. In fact, Victoria often cared for both at the same time, bringing her daughter with her to the patient’s home. It is certainly reasonable that Victoria sought a break from her responsibilities once a week for five hours. That break likely gave Victoria an opportunity to relax and recharge so that she could continue to care for her daughter and maintain her paying job.
NFP criminal opinions today (1):
William Le'Shawn Thomas v. State of Indiana (NFP)
Posted by Marcia Oddi on August 7, 2008 12:56 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Lake County Council "frowns on unchanged budgets from county judges "
John Byrne reports today in the Gary Post-Tribune:
CROWN POINT -- The Lake County Council is ready to put several county judges on notice.See this Aug. 5th ILB entry quoting an earlier, related story.Unhappy with initial 2009 budget proposals from three of the four County Division courtrooms, council members said Wednesday they need to call the judges on the carpet.
"They're going to need to be corralled together for a meeting," said Councilman Tom O'Donnell, D-Dyer.
Judge Jesse Villalpando was the only one of the four to turn up for initial budget hearings Tuesday in Crown Point.
And only Villalpando presented a plan to cut positions from his courtroom, announcing he would close out three secretarial spots.
Representatives for judges Nicholas Schiralli, Julie Cantrell and Sheila Moss proposed 2009 budgets largely unchanged from this year.
That didn't sit well with the council, which is hoping to adopt a 2009 county budget $15 million smaller than this year's.
The County Division judges have also been in the Lake County commissioners' crosshairs of late.
The four are the only ones of 16 Lake County judges still chosen in partisan elections.
In a letter released this week, the commissioners said they believe state legislators will now support a statutory change to have the County Division chosen by a judicial commission and the governor, like their peers.
Posted by Marcia Oddi on August 7, 2008 09:35 AM
Posted to Indiana Courts
Ind. Courts - More again today on the Delaware County drug forfeiture investigation
The most recent ILB entry on the drug forfeiture investigation in Delaware County was Aug. 6. Today Rick Yencer of the Muncie Star-Press reports in a story that begins:
Delaware Circuit Court 2 Judge Richard Dailey on Wednesday concluded his series of hearings on the handling of forfeitures and seizures in local drug-related cases, making no finding of criminal activity.
Advertisement"That is something left to someone else to do," said Dailey, referring to a grand jury or special prosecutor.
Dailey reviewed 10 more cases Wednesday in which the Muncie-Delaware County Drug Task Force, Delaware County Prosecutor Mark McKinney and Deputy Prosecutor Eric Hoffman used confidential settlements or affidavits to seize and disperse the money and assets of alleged drug dealers.
While state law requires that such money be placed local government and school funs, the DTF maintained separate city accounts and checkbooks in which they deposited and spent hundreds of thousands of dollars over the past decade and equipment, vehicle, charitable donations and other expenses.
Dailey spoke from the bench to McKinney and Hoffman, along with city attorney Charles "Chic" Clark, after Wednesday's hearing, saying he had not seen evidence of criminal activities by police in the nearly 40 cases he had reviewed so far.
Posted by Marcia Oddi on August 7, 2008 09:31 AM
Posted to Indiana Courts
Courts - "Groups Urge High Court to Review Key Judicial Recusal Case"
Updating this ILB entry from Aug. 4th, Marcia Coyle of The National Law Journal reports today in a brief story:
Bar, campaign reform and citizens' groups this week filed briefs urging the U.S. Supreme Court to hear a case challenging a West Virginia Supreme Court justice's refusal to recuse himself from a case involving his chief campaign contributor.The American Bar Association, the Washington Appellate Lawyers Association and Public Citizen filed amicus briefs, along with the Brennan Center for Justice, the Reform Institute and the Campaign Legal Center.
In Caperton v. Massey Coal, No. 08-22, the president of a coal company, represented by former Solicitor General Theodore B. Olson, argues that his due process rights were violated because West Virginia Supreme Court Justice Brent Benjamin refused to recuse himself from hearing the appeal of a $50 million jury verdict against a rival coal company. The rival's chief executive officer contributed more than $3 million in direct and indirect support of Benjamin's campaign for the bench. Benjamin ultimately was the deciding vote in overturning the verdict.
The ABA and the other organizations urged the high court to grant review to address whether and when the due process clause of the Constitution requires judges to recuse themselves, or withdraw, from ruling in cases in which they have accepted campaign contributions from parties to a case.
"This case perfectly illustrates how large contributions in judicial races can distort the judicial process, providing, at the very least, the appearance of corruption," said Cecilia Martinez, executive director of the Reform Institute. "When litigants feel that they are at a disadvantage in court proceedings due to contributions to the presiding judge from the opposing party, respect for the rule of law suffers."
Posted by Marcia Oddi on August 7, 2008 06:09 AM
Posted to Courts in general
Wednesday, August 06, 2008
Ind. Decisions - Improvements needed to highlight late-added opinions
Late this afternoon, another COA opinion was posted by the Clerk; the stamp indicates it was filed at 3:40 pm. The NFP case is Mitchell Jackson v. State of Indiana (NFP).
Only by accident did the ILB discover this, noticing that the count from earlier in the day, 15, had now increased to 16. To determine which of the list of 16 was new, the ILB had to tediously compare the old list against the new list. As one can see from looking at the list of postings, the newly added Jackson falls in the middle of the 8/6/08 postings.
I have no idea how often this happens and goes undiscovered. The last time the ILB spotted one of these late-added opinions was June 5th: "[Note: This opinion was posted after the regular posting; as the ILB has stressed before, there is always the danger that additional opinions added later in the day with no designation as such will not be spotted.]"
The ILB has written about this issue several times. This ILB entry from Dec. 12, 2007 is headed "Suggestions to improve COA postings:"
Readers will notice there are two sets of Court of Appeals decisions this afternoon. When the ILB checked at noontime, there were a number of opinions dated 12/12/07, which the ILB duly posted with summaries. A few minutes ago the ILB checked the COA site again, and it appeared that more cases dated 12/12/07 had been added.These small improvements would be very simple to implement and would benefit the many people who access the opinions each day. Perhaps others will add their voices.The problem is, there is no easy way, from the way the COA site is set up, to distinguish between additions to the list, other than by date. When additional cases are added in the same day, they are intermingled with the cases already posted, rather than being added to the top or bottom of the list, or otherwise identified.
Someone looking at the list at the wrong time of a day may miss important opinions and not realize it, or may look a second time and see that the list for the day looks longer, but have to open each opinion again to see which ones are new.
The ILB has corresponded with a COA representative about this problem twice, suggesting possible resolutions. Here is the message, sent Sept. 7th and Oct. 26th:
Here is two small things the Court of Appeals could do to improve its reporting of opinions on the court website.Most days it appears that the opinions go to the clerk for posting in batches. What that means is that when the public checks the site it can tell all the cases posted for a certain date, but it cannot distinguish between what was added first thing in the morning and what was added later. So, especially on busy days, if you look at 10 there is a long list of cases, and if you look at 2 the list may be even longer, but no way to determine what has been newly added.
This could be easily remedied by, for instance, having DP somehow separate this first batch from the second, rather than intermingling them.
A second improvement, that I suggested to the Clerk's office several years ago, has to do with corrected opinions. It appears that when an opinion is corrected for typos, etc. a new version is posted in place of the old with nothing said. So different people may be reading different versions, depending on when they accessed the opinion. Why not append a correction sheet to the revised version?
Posted by Marcia Oddi on August 6, 2008 06:58 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - More on the authority of magistrates and master commissioners
In Invol. Term. of Parent-Child Rel. of A.P., M.P., and S.P., and Mary Palmero v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP) (12/27/07) and In the Matter of the Involuntary Termination of the ) Parent-Child Relationship of A.G.; K.G.; A.R (NFP) (12/26/07), Judge Sharpnack addressed the authority of a magistrate. From Palmero:
This case comes to us on appeal from an order terminating the parental rights of Mary Palmero to M.P., A.P., and S.P. The order included in the record reflects that it was signed by the magistrate presiding over the case but does not indicate that the juvenile court judge approved entry of the order. The docket indicates that the order was approved on May 22, 2007, but there is no indication as to how this approval was accomplished.Today, in Baniaga v. State, and earlier in Ervin Crabtree v. State of Indiana (NFP) (7/25/08), CJ Baker looks at the master commissioner. From today's opinion, footnote 1:The authority of magistrates to act is determined by statute. As provided in Ind. Code §§ 33-23-5-5(14) and 33-23-5-9(b), a magistrate presiding at a criminal trial may enter a final order, conduct a sentencing hearing, and impose a sentence on a person convicted of a criminal offense. There is no such provision for magistrates to act in termination of parental rights cases. Rather, Ind. Code § 33-23-5-9(a) provides that, except in criminal proceedings, a magistrate “shall report findings” in an evidentiary hearing or a trial and that “the court shall enter the final order.” Because the record does not establish judicial approval of the magistrate’s findings in this case, we remand to the juvenile court for its consideration and further action consistent with this opinion. We retain jurisdiction of this appeal pending action by the juvenile court. Remanded.
Master Commissioner Patrick Murphy heard this case and signed the abstract of judgment. Indiana Code section 33-33-49-16(e) provides that a “master commissioner shall report the findings in each of the matters before the master commissioner in writing to the judge or judges of the division to which the master commissioner is assigned.” However, the statute also provides that a master commissioner has the powers and duties prescribed for a magistrate under Indiana Code section 33-23-5-5, including the power to enter a final order, conduct a sentencing hearing, and impose a sentence on a person convicted of a criminal offense. Given the manner in which these statutes have evolved in conjunction with the authority specifically granted by Indiana Code section 33-23-5-5, we believe that section 33-33-49-16(e) means that a master commissioner must keep the judge apprised regarding the matters before him, but not that the judge needs to approve by signature the master commissioner’s statutorily authorized actions.
Posted by Marcia Oddi on August 6, 2008 03:58 PM
Posted to Indiana Courts
Ind. Law - "Barnes & Thornburg is cutting its summer associate program next year in its Chicago office"
From a story by Lynne Marek in the National Law Journal:
Barnes & Thornburg, a 450-lawyer firm based in Indianapolis, is cutting its summer associate program next year in its Chicago office because first-year associates are so available in the city and competing firms have reduced the programs, the firm said.The firm typically has about two to three summer associates in the Chicago office with the typical offers for a first-year position in the fall of the following year after the law student finishes school. Lately, the firm has found it so easy to attract first-year associates in Chicago that weren't a part of its summer program that it decided it was needless effort to host the summer associates and then be forced to shoehorn hiring plans into the 18-month wait for new associates, said Jon Froemel, the firm's hiring partner for the Chicago office.
"We've hired successfully so many first-years that it seems, at least for next year, there wasn't a need," Froemel said.
The firm's partners also said they had heard other law firms were cutting back their summer programs, making Barnes & Thornburg's move a competitive response. They declined to name other firms making the reductions.
Posted by Marcia Oddi on August 6, 2008 02:20 PM
Posted to Indiana Law
Ind. Courts - More again today on the Delaware County drug forfeiture investigation
This column by Larry Riley in the Muncie Star Press attempts to give an overview of the issues. This article by Rick Yencer reports that: "An ongoing investigation of drug forfeiture and seizure cases is now turning to federal funds that helped pay for Muncie-Delaware County Drug Task Force operations over the past 20 years.."
Posted by Marcia Oddi on August 6, 2008 01:25 PM
Posted to Indiana Courts
Ind. Gov't. - "State rejects retroactive rental property code "
The headline to the Aug. 5th story ($$) by Laura Lane in the Bloomington Herald Times is "State rejects retroactive rental property code: Forcing owners to meet new city standards is not fair, commission says; city may appeal decision." Some quotes:
INDIANAPOLIS — Bloomington’s 1993 property maintenance code, which requires owners of rental houses and apartments to comply with new standards even though the structures met the codes in force when they were built, is not worth the paper it is written on.That’s the opinion of the Indiana Fire Prevention and Building Safety Commission, which on Tuesday rejected the city’s maintenance code for rentals, saying is unreasonable and conflicts with state law.
“I think it is unenforceable,” said commission chairman David Hannum. “It will not be approved by this body in its current form. What the city of Bloomington needs to do is rewrite its code, to make sure they do not usurp authority they do not have.”
There was confusion over whether the state commission had ever reviewed, or needed to authorize, the code. But the city went before the group to have it passed by the state, making it more binding legally.
“At face value, a property maintenance code would not have to be approved by us,” Hannum said. “Except for that one, which is retroactive to codes that were not in place when a structure was built.”
He said making rental property owners conform to new codes counters the commission’s rules.
“We can’t approve rules that require retroactive changes,” he said. “It is clearly mandated by the Legislature that buildings have to comply with the codes in place at the time of construction.”
The city’s property maintenance code is being challenged by at least three lawsuits pending in Monroe Circuit Court. * * *
City corporation counsel Kevin Robling said his staff will review the code and the commission’s stance before determining how to proceed. He said the city could appeal the commission’s decision.
“I think it’s fair to say the chairman of the commission and I may have varying positions on his role and the city’s role in this matter,” Robling said. “The commission might want to make sure it understands its authority, because it’s clear to me they do not have control over our property maintenance code.”
Posted by Marcia Oddi on August 6, 2008 01:18 PM
Posted to Indiana Government
Ind. Law - Greenwood homeowners assoc. bans sex offenders
From WISHTV8, August 8, some quotes from a lengthy story:
GREENWOOD, Ind. (The Daily Journal) - A group of Greenwood residents have a message for registered sex offenders: Stay out.Here is a link to a comprehensive June 16th story by Pamela A. MacLean in the National Law Journal headed "Challenges grow over sex offender laws: Welter of confusion over restrictions."Pines of Greenwood, near Worthsville and Averitt Roads, is believed to be one of the first subdivisions in the state to prohibit registered sex offenders from moving in or living there, the homeowners association attorney said.
The homeowners association adopted the ban in hopes of protecting neighborhood children and preserving property values.
The 175-home subdivision on Greenwood's southwest side may be the first in Indiana to block sex offenders from living there, but communities in New Jersey and the Kansas City area have put similar policies in place.
A developer in Texas has marketed "sex offender-free neighborhoods."
After adding the ban to the subdivision's covenant, the association can evict any sex offender who buys a home in the subdivision or any current resident who's convicted of a felony sex crime in the future. By owning property in the subdivision, Pines homeowners agree to not allow sex offenders to live in their homes or to rent or sell their properties to sex offenders. * * *
ACLU of Indiana spokesman Ken Falk said the ban was legal and that his group had no plans to challenge it in court, unless someone claimed it violated their rights. Even then, the only challenge would be on technical grounds if the prohibition were adopted correctly, Falk said.
Federal housing law prohibits discrimination against people on the base of race, religion, creed, national origin or disability status. No federal protection is given for past criminal behavior.
Similar prohibitions elsewhere in the country, including one in New Jersey, have survived lawsuits, Tanner said.
Under the ban, any sex offenders who already are living in the subdivision will not be kicked out, but no new registered offenders will be allowed to live in homes in Pines.
Posted by Marcia Oddi on August 6, 2008 01:07 PM
Posted to Indiana Law
Ind. Law - A number of new golf cart stories today
From the Elkhart Truth, a brief report from the Middlebury Town Council meeting of 8/4/08:
Discussed possibly allowing residents to drive golf carts on town roads. Council members said they were open to considering the issue, but more research is needed into the cost and safety of such a plan before any decision can be made. The council likely will seek public input in an open hearing that will be scheduled at a later date.A longer story on Middlebury from Dave Martin of the the Goshen News:
MIDDLEBURY, Ind. — Should golf carts be allowed on city streets?From the Bedford Times-Mail, a good story by Krystal Slaten. Some quotes:That’s the question before the Middlebury Town Council, and they’d like the public’s help in deciding.
The issue was raised when a resident asked the council at a recent meeting if operating a golf cart on Middlebury’s streets would be legal. The resident, who could not make Monday’s Town Council meeting, said that he would like to use his golf cart in place of his car to get around town and save gasoline.
This spurred Town Manager Lowell Miller into research.
Miller said that he looked at golf cart use in other Indiana towns and at Indiana statutes.
He said golf carts are considered moving vehicles and state statutes place “significant restrictions” on what must be included in any town ordinances relating to golf cart use on streets and highways. For example, before carts can be used on streets and highways, they must be registered as moving vehicles and undergo safety inspections, much like automobiles did in the 1960s and 1970s.
“(The public) needs to know they can’t just jump on a golf cart and go (on the streets),” Miller said.
Councilman Jack Kortie added that golf cart drivers must have a driver’s license to operate a cart on the public streets.
And Council President Gary O’Dell cautioned that Middlebury’s ordinances on the issue would not apply to Ind. 13, since it is a state highway.
After the meeting, Miller said that only one person has inquired on the issue at the town offices this summer.
Following Miller’s report, council members decided to table the issue and take informal public comments. If significant response is elicited, the panel will then schedule a public hearing on the golf cart issue.
MITCHELL — To ride or not to ride is definitely the question plaguing the owners of golf carts in Mitchell these days.From News 25, Evansville, a story headed "Sharing the Road with Golf Carts and Scooters? It Could Happen Soon in Kentucky."The problem arose July 26 when Harold Sanders was pulled over on Main Street in Mitchell by Lawrence County officer Lonnie Johnson for driving his gas-powered golf cart. Sanders was ticketed for failure to provide registration when required and was slapped with a fine.
Sanders immediately went to visit Mitchell Mayor Dan Terrell to see what the problem was. That’s because, in the previous weeks, Terrell came out publicly encouraging the use of golf carts within the city limits.
But it appears there is a gray area in Indiana when it comes to laws concerning the use of golf carts, and it’s an issue likely to face state legislators soon, as gas prices continue to hover around $4 a gallon.
Legal issues. The use of golf carts, according to Lawrence County Prosecutor Michelle Woodward, isn’t just an issue in Mitchell. Other cities tackle it enough that the Indiana Prosecutor, the newsletter for the Indiana Prosecuting Attorney Council, reports about the issue at least once a year.
“Title 9 of the Indiana Code does not specifically mention golf carts or ban their use or operation on public highways. However, Title 9 does impose certain requirements and restrictions upon the use of golf carts operated on public highways,” the newsletter stated in its June/July 2007 issue.
Woodward agrees. “Golf carts can be operated on public highways, but — and this is a big but — they must be registered and plated with the Bureau of Motor Vehicles,” Woodward said.
“And if you go in to the BMV and tell them you want to plate your golf cart, they are going to look at you quite strangely because there is no method for registering or plating a golf cart.”
The problem, Woodward says, lies in the law. “This is an issue we won’t solve without legislators taking action,” she said. * * *
“We just like to ride our cart around town, taking it to the grocery store and coffee shop,” Rondee Sanders said. “For us, it’s safer. We are disabled and it’s so much easier to get in and out of our golf cart to run errands, and we’re saving on gas. And, sometimes, we just take a ride at night just to have something to do, outside of sitting at home watching reruns.”
Terrell, who encouraged the use of golf carts a few weeks ago, is upset because he believes Mitchell’s senior citizens are the ones who are being punished by an unclear law.
“I am mad,” Terrell said. “A couple of Mitchell’s senior citizens are playing the price for an unclear law. This is common sense gone nuts. Mitchell police are plenty capable of controlling our senior citizens gone wild on golf carts.”
A solution? The mayor points to statistics, such as one that says 1,000 people are hurt on golf carts annually and 800 of those injuries take place on the golf course. Still, however, he knows the issue will have to be tackled at the Indiana Statehouse.
“Our state legislators are going to have to address this,” Terrell said. “But I don’t see how anyone can give a ticket on a law that’s so muddy and cloudy. Since we don’t have any way to register golf carts in the state, I am just telling people that Mitchell police aren’t writing tickets for this. Mitchell supports golf carts, their use and the conservation of fuel.
Posted by Marcia Oddi on August 6, 2008 12:49 PM
Posted to Indiana Law
Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP) [Corrected]
For publication opinions today (2):
In Denia Baniaga v. State of Indiana , a 9-page opinion, CJ Baker writes:
Appellant-defendant Denia Baniaga appeals her convictions for Possession of Cocaine, a class C felony, and Driving While Suspended, a class A misdemeanor. Specifically, Baniaga argues that (1) the search of her vehicle following her arrest violated Article I, section 11 of the Indiana Constitution; (2) the civil forfeiture of her vehicle and subsequent criminal prosecution for possession of cocaine violated the prohibition against double jeopardy; and (3) the evidence was insufficient to support her conviction for possession of cocaine. Finding, among other things, that the search of Baniaga’s vehicle was not reasonable pursuant to the Indiana Constitution, we affirm in part, reverse in part, and remand with instructions outlined herein. * * *In Gary L. Williams, Jr. v. State of Indiana , a 24-page opinion, Judge Najam writes:We conclude that Officer Ball’s search of Baniaga’s vehicle was not reasonable in light of the totality of the circumstances. Although Baniaga was under arrest for driving while suspended, the officer did not fear for his safety and there was no indication that Baniaga had engaged in drug activity. Moreover, Officer Ball admitted that he did not need to search the vehicle to preserve further evidence of Baniaga’s licensure offense. Thus, we conclude that the search of Baniaga’s vehicle violated the protections provided by Article I, section 11 of the Indiana Constitution. Consequently, the trial court abused its discretion by admitting evidence stemming from the vehicle search. Thus, we reverse Baniaga’s conviction for possession of cocaine and remand with instructions for the trial court to vacate the conviction and sentence imposed thereon.
____________
[1] Master Commissioner Patrick Murphy heard this case and signed the abstract of judgment. Indiana Code section 33-33-49-16(e) provides that a “master commissioner shall report the findings in each of the matters before the master commissioner in writing to the judge or judges of the division to which the master commissioner is assigned.” However, the statute also provides that a master commissioner has the powers and duties prescribed for a magistrate under Indiana Code section 33-23-5-5, including the power to enter a final order, conduct a sentencing hearing, and impose a sentence on a person convicted of a criminal offense. Given the manner in which these statutes have evolved in conjunction with the authority specifically granted by Indiana Code section 33-23-5-5, we believe that section 33-33-49-16(e) means that a master commissioner must keep the judge apprised regarding the matters before him, but not that the judge needs to approve by signature the master commissioner’s statutorily authorized actions.
Gary L. Williams, Jr. appeals his convictions and sentence on two counts of Dealing in Cocaine, as Class A felonies; one count of Possession of Cocaine, as a Class A felony; two counts of Possession of Cocaine, as Class C felonies; and one count of Possession of Marijuana, as a Class D felony. Williams raises eight issues for our review * * *NFP civil opinions today (3):In sum, we hold that Williams’ request to have the bond premium remitted to him by ASC is not properly before us. We also revise Williams’ seventy-three year sentence to forty total years. We affirm the trial court on all other issues raised in this appeal. Affirmed.
Shawanna Butler v. St. Joseph Co. Dept. of Child Svcs. (NFP) - "The trial court’s determination that continuation of the parent-child relationship poses a threat to the Children’s well-being is not clearly erroneous. The evidence sufficiently supports the trial court’s decision to terminate the parent-child relationship between Mother and the Children. Judgment affirmed."
Renaissance Remodeling Inc. v. J. & L. Cargo Express Inc. (NFP) - "Appellant-plaintiff Renaissance Remodeling, Inc., d/b/a DBR Plumbing, Inc. (DBR), appeals the trial court’s judgment in favor of appellee-defendant J&L Cargo, Inc. (J&L), claiming that a damage award was improper because the evidence established that J&L had violated a bailment agreement by failing to return a trailer to DBR. DBR raises a number of issues, which we have consolidated and restated as follows: (1) whether the trial court properly awarded damages to J&L, which represented the value of a trailer it had loaned to DBR that was subsequently stolen; (2) whether the trial court erred in offsetting the total judgment award as a result of DBR’s counterclaim against J&L for the loss of use of its trailer; and (3) whether the trial court abused its discretion in awarding mediation sanctions against DBR. Finding no error, we affirm the judgment of the trial court."
Re the Marriage of M.B. v. J.E. (NFP) - "Modifying custody of L.E. and J.E. despite no finding or evidence of a substantial change in circumstances sufficient to warrant a change of physical custody, as required by Indiana Code section 31-17-2-21, constitutes an abuse of discretion. However, given the evidence in the record, we find that a modification of Father’s visitation would serve the best interests of L.E. and J.E. See I.C. § 31-17-4-2 (“The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child.”).
"As a result, we affirm in part and reverse in part the trial court’s order and remand to the trial court with instructions to enter an order, granting Father 1) weekly visitation from Tuesday afternoon to Tuesday evening at 6:30 p.m. and Thursday afternoon to Thursday evening at 6:30 p.m.; and 2) biweekly weekend visitation from Friday afternoon to Monday morning.
"Affirmed in part, reversed in part, and remanded with instructions."
NFP criminal opinions today (10):
Antonio Manuel v. State of Indiana (NFP)
Cameron Williams v. State of Indiana (NFP)
Vernon D. Brady v. State of Indiana (NFP)
Ron Banet v. State of Indiana (NFP)
Justin Kinnett v. State of Indiana (NFP)
Maritza Ramos v. State of Indiana (NFP)
Helen C. Young v. State of Indiana (NFP)
Nickolas Trobaugh v. State of Indiana (NFP)
Julie D. Hayden v. State of Indiana (NFP)
Jason Gaboian v. State of Indiana (NFP)
Posted by Marcia Oddi on August 6, 2008 12:16 PM
Posted to Ind. App.Ct. Decisions
Courts - Georgia Appeals Court Candidates Confront Anti-Abortion Group's Survey
Alyson M. Palmer of the Fulton County Georgia Daily Report writes today in a lengthy story:
It's unlikely the Georgia Court of Appeals will ever issue a ruling on whether the state or federal constitution contains a right to abortion. But a Georgia anti-abortion group still wants to know what the seven candidates seeking an open seat on the court think on the hot-button subject.See this long list of ILB entries on the Indiana Right to Life case, including most recently this May 18th ILB entry quoting a story by Rebecca S. Green of the Fort Wayne Journal Gazette giving an overview of the issues. Check here to go directly to a copy of the detailed Indiana Right to Life Questionnaire.Georgia Right to Life has sent candidates to succeed Judge John H. Ruffin Jr. a 10-point questionnaire about such topics as whether an unborn child is "biologically human and alive" and how courts should handle lawsuits over infants born with disabilities.
The Court of Appeals generally doesn't have jurisdiction to decide whether statutes -- including those limiting abortion -- are constitutional. And the viability of so-called "wrongful birth" lawsuits by parents of disabled children was effectively squelched by the state Supreme Court in 1990.
But the candidates' reaction to the questionnaire suggests how open they will be to sharing their views on specific issues -- and what they think of traditional warnings to judges not to talk about potential cases.
In 2002, federal courts struck down rules limiting what judicial candidates could say. Since then, some candidates have embraced their freedom to speak out, while others have maintained that judges and candidates risk their impartiality by expressing views on issues that could come before their courts. * * *
The group has presented each candidate with 10 statements, asking them to note whether they agree or disagree with the statement or are undecided or decline to answer. A footnote explains that a "decline" to answer response means the candidate believes he or she must decline because any other response would violate judicial ethics canons or require a subsequent recusal.
Georgia Right to Life is best known for its anti-abortion stance, and several items on the questionnaire deal explicitly with that topic. The group asked under what circumstances abortion should be permitted and whether the state constitution requires the use of public monies for abortion. The questionnaire also asks whether the landmark abortion decision, Roe v. Wade, 410 U.S. 113 (1973), was wrongly decided and whether the state constitution protects a right to abortion.
But abortion is not the only issue covered on the questionnaire. It also asks the candidates whether they believe the state constitution protects a right to assisted suicide and whether embryos conceived through in vitro fertilization should be "treated in accord with their best interests in any dispute over their disposition."
Posted by Marcia Oddi on August 6, 2008 09:01 AM
Posted to Courts in general
Law - Law librarian comments on the law student "search" mentality
The Houston Chronicle had a feature August 1st on DeCarlous Spearman, law library director at Texas Southern University's Thurgood Marshall School of Law. A quote:
Q: What is your goal as the TSU law library director?A: My goal is to bring the library truly to the next level, bring it truly into the electronic age. I want podcasts of classes and seminars and webcasts, too, so students can see the materials being discussed. In research, seeing the tools can be as important as hearing about how to use them.
First-year students expect the databases to do it all for them. I want them to learn that legal research is not like that.
Q: What do you miss? What has technology taken away?
A: What I miss is what technology's taken away from the students.
Students now want quick, fast answers — yesterday. But they have no idea how to get the complete answers, or what it takes to get the entire picture. Technology's taken that from the student body and even faculty members.
I call it the microwave age: If it can't go in and come out ready in five minutes, they don't want it. But that's not enough. Research isn't always quick. Complete research has to be comprehensive.
Sometimes one source won't do it. But today students want what I call Wal-Mart research — one-stop shopping. Students 12 years ago were more patient. They mixed book research with Lexis or Westlaw. I'm not OK with the quick answers.
Posted by Marcia Oddi on August 6, 2008 08:52 AM
Posted to General Law Related
Ind. Courts - Change of venue in Kalab Lay murder trial [Updated]
Evansville's Kalab Lay murder trial (see earlier ILB entries here) has been moved to Clark County, about two hours east of Evansville. Today the Evansville Courier & Press has an editorial stating that the venue decision is appropriate. The editorial concludes:
It's also worth noting local history: the sensational murder trial of Evansville's Leslie "Mad Dog" Irvin on six counts of murder in 1955. Although moved next door to Gibson County, Irvin's first trial was held in an atmosphere of bias and prejudice.[Updated already] Michael Stevens of the Kentucky Law Blog has just posted an entry that begins:The U.S. Supreme Court in 1961 overturned Irvin's conviction and death sentence, ruling the trial should not have been held anywhere close to Evansville, and so Irvin had to be retried.
The Irvin legal precedent stands to this day. It means that in most high-profile cases, either trials are moved out of the media market or an outside jury is brought in from elsewhere, to ensure jurors don't decide a case before they have heard courtroom evidence.
The Internet age has eroded geographic boundaries somewhat, since it's simple to look up Web articles about out-of-town court cases. But prospective jurors are far more likely to know many details of a case — and thus be unable to put aside what they have read — if the crime happened in their backyard.
If a trial in this high-profile case were held in Vanderburgh County and ended in a conviction, then it would be grounds for an appeal, reversal and retrial, at further cost to taxpayers.
Thus it's in everyone's interest — the defendant's, the prosecution's and the public's — to move the mother's trial to another county. A change of venue in the trial of Kalab's father, Terry Lay, would be appropriate for the same reasons.
Here's an interesting situation from a story in the Courier-Journal about a pending criminal trial in which the defendant is moving to strike certain statements are inadmissible and which are now posted on the internet and in the newspaper.Here is the CJ story.If the defendant wins the motion to suppress are then entitled to a change in venue?
If the defendant loses the motion, would a change in venue cure the publicity problem?
Can the bell be "unrung" through jury selection?
A criminal defendant's presumption of innocence and right to a fair trial versus the freedom of the press in the digital age of news delivery poses an interesting question.
Posted by Marcia Oddi on August 6, 2008 08:46 AM
Posted to Indiana Courts
Ind. Law - More on "Deadline looms for lenders, mortgage brokers must pass test"
Updating this ILB entry from July 8th, here is the list of revoked mortgage brokers from the Secretary of State's page.
Meagan Ingerson of the Indianapolis Star reports the story today under the headline: "360 mortgage brokerages don't cut it with state: Many across Indiana face sanctions by not responding to new rules on compliance by Tuesday's deadline."
Posted by Marcia Oddi on August 6, 2008 08:29 AM
Posted to Indiana Government | Indiana Law
Tuesday, August 05, 2008
Ind. Courts - "Blood test put judge's alcohol at twice limit"
So reports Rebecca S. Green in this story today in the Fort Wayne Journal Gazette. Some quotes:
With the results of a blood test showing a blood-alcohol content more than twice the legal limit, Allen Circuit Judge Thomas Felts might now be faced with losing his driver’s license.According to officials at the Marion County Prosecutors Office, Felts’ blood tests, ordered after the judge was arrested last month in downtown Indianapolis, revealed a blood-alcohol content of 0.19 percent. The legal limit in Indiana is 0.08 percent
Now that they have the results, prosecutors intend to ask a judge to suspend Felts’ driving privileges, allowed under Indiana law for a positive blood-alcohol test, said Matthew Symons, spokesman for the Marion County Prosecutor’s Office. * * *
An earlier effort by prosecutors to have Felts’ license suspended based on the refusal failed after a judge found a refusal did not provide probable cause.
Symons said a judge could schedule a hearing to discuss the prosecution’s request or make a ruling on the motion without a hearing.
A pretrial hearing was scheduled for Aug. 21 at Felts’ initial hearing last month.
Posted by Marcia Oddi on August 5, 2008 04:30 PM
Posted to Indiana Courts
Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)
For publication opinions today (1):
In First Farmers Bank & Trust Co. v. Dianna F. Whorley , a 19-page opinion, Judge Riley writes:
Appellant-Defendant, First Farmers Bank & Trust Co. (First Farmers), appeals the trial court’s denial of its motion for summary judgment and the grant of partial summary judgment in favor of Appellee-Plaintiff, Dianna F. Whorley (Whorley), in an action for breach of fiduciary duty following a guardianship. * * *NFP civil opinions today (1):Based on the foregoing, we find that the trial court properly denied First Farmers’ motion for summary judgment. However, we conclude that the trial court erred by granting Whorley’s motion for partial summary judgment.
Andy's Trucking & Equipment Co. v. City of Gary, Indiana; Mayor Rudolph Clay (NFP) - "Andy’s presents three issues for our review, which we restate as one: whether the trial court’s findings of fact and conclusions of law are clearly erroneous.
"Andy’s Truck & Equipment Co., Inc. (“Andy’s”) is a business in Gary, Indiana that sells used truck parts and machinery. Andrew Young is the president of Andy’s. The City of Gary (“the City”) filed a complaint against Andy’s alleging that Andy’s was using its property in violation of city ordinances. After prolonged litigation, a bench trial was held, and the trial court entered its findings of fact and conclusions of law enjoining Andy’s from engaging in certain activities on its property. This appeal ensued." Affirmed
NFP criminal opinions today (5):
Devan White v. State of Indiana (NFP)
Devon L. Upshaw v. State of Indiana (NFP)
Delores March v. State of Indiana (NFP)
Robert W. Thompson v. State of Indiana (NFP)
Joshua Renick v. State of Indiana (NFP)
Posted by Marcia Oddi on August 5, 2008 01:14 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "Stop making judges run for office, Lake County commissioners argue"
John Byrne of the Gary Post-Tribune reports today:
No judges in Lake County should run for election in political campaigns, the Lake County commissioners argue in a memo released Monday.The commissioners contend county government could be run more efficiently, and inexpensively, if the four County Division judges -- Jesse Villalpando, Julie Cantrell, Sheila Moss and Nicholas Schiralli -- were part of a "merit system," like the county's other 12 Superior Court judges.
In the merit system, appointments are made by the governor from nominees screened by the Lake County Judicial Nominating Commission. Once appointed, judges run for retention or rejection on a countywide, nonpartisan basis every six years.
The County Division judges have been criticized by the County Council and Board of Commissioners in recent years because the judges have 27 part-time public defenders -- seen by council members and commissioners as an inordinate expense during tough budgetary times.
Replacing the 27 part-time defenders with five full-timers and one part-timer would save the county $696,000 a year, the county's finance committee reported recently.
Commissioner Roosevelt Allen said the judges rely on the attorneys to raise money for their re-elections and, thus, have no compelling reason to get by with fewer public defenders.
"We feel (merit selection) might make the court system more efficient and accountable," Allen said.
Lake County switched most of its judicial seats to a merit system in the mid-1970s, when state legislator Adam Benjamin of Gary argued judges should be removed from Lake County politics.
Other than St. Joseph County, the rest of the counties in the state have continued to elect their county judges.
The exception in Lake County has been the County Division, where judges have always been elected on a partisan basis.
Superior Court Chief Judge John Pera, himself appointed via the merit system, believes the time has come to unify the selection process.
"Having judges run for election and raise the amount of money required to run effectively has some serious drawbacks," Pera said, pointing out that lawyers who argue before the County Division judges often contribute money to their election campaigns.
"That's not to say the elected judges don't apply the law impartially, but it just looks bad," Pera added.
Posted by Marcia Oddi on August 5, 2008 09:36 AM
Posted to Indiana Courts
Ind. Courts - More again today on the Delaware County drug forfeiture investigation
Two stories today by Rick Yencer of the Muncie Star-Press, updating this ILB entry from Aug. 2nd: "Reed, Winkle spar over DTF testimony," and "Adrian Kirtz case scrutinized in DTF case", available here and here.
Posted by Marcia Oddi on August 5, 2008 09:29 AM
Posted to Indiana Courts
Ind. Gov't. - "County mulls appealing doctors' offices tax status"
Bill Dolan reports today in the NWI Times in a story that begins:
CROWN POINT | Lake County Assessor Paul Karras said the county may decide later this week whether to appeal a state ruling to exempt from taxation five doctors' offices and a chaplain's home associated with St. Margaret Mercy Healthcare Centers.The Indiana Board of Tax Review recently ruled in favor of the hospital's position that its charitable work with uninsured patients justifies the property tax exemptions for the physicians' offices.
The state board ruled the chaplain's home, located on the state line near the hospital campus in downtown Hammond, was exempt because the chaplain performed masses at the hospital.
Posted by Marcia Oddi on August 5, 2008 09:20 AM
Posted to Indiana Government
Courts - "A Primer on What Lawyers Can Say About Judges"
Bruce A. Campbell of the Texas Lawyer has this article. A quote:
What happens when an attorney makes a false statement about a member of the judiciary? Will the offending attorney be disciplined? Perhaps, but not necessarily.In 1964's Garrison v. State of Louisiana, the U.S. Supreme Court held that the First and 14th Amendments to the U.S. Constitution protect lawyers who make false statements about judges from imposition of civil, criminal and disciplinary sanctions unless the statement is made "with knowledge of its falsity or in reckless disregard of whether it was false or true."
Indeed, the Colorado Supreme Court noted in 2000's In the Matter of Green that "if an attorney's activity or speech is protected by the First Amendment, the disciplinary rules governing the legal profession cannot punish the attorney's conduct."
But attorneys should not view the First Amendment as a license to disparage the judiciary. The test that has been uniformly applied to challenged lawyer statements about judges is a version of that set out in the U.S. Supreme Court's 1964 decision in The New York Times Co. v. Sullivan, et al. First, did the disciplinary authority prove that the statement was a false statement of fact or a statement of opinion that necessarily implies an undisclosed false assertion of fact? Second, did the attorney utter the statement with actual malice -- that is, with knowledge that it was false or with reckless disregard as to its truth?
Posted by Marcia Oddi on August 5, 2008 09:15 AM
Posted to Courts in general
Ind. Courts - " 'Dead' woman sues Porter hospital"
James D. Wolf Jr. of the Gary Post-Tribune reports today:
VALPARAISO -- The very much alive Jackson Township woman declared dead by Porter hospital in January filed suit last week against the hospital.Here is a link to the earlier story by Jerry Davick of the P-T: "Alive, well ... and a little peeved."Diane Wright, 67, and her husband are suing for damages caused when Porter staff declared her dead after a 46-year-old North Judson woman with her name died in the hospital on Jan. 25.
Since then, Wright has had her Social Security and Blue Cross/Blue Shield terminated. The federal government billed her husband, Delbert Wright, $2,941.80 for Social Security paid into their joint account.
"This is not one of those 'I spilled coffee in my lap at McDonald's (lawsuits)," said Thomas Hillers, attorney for the Wrights.
They tried to clear things up through the hospital, but they received no replies about the months-long mess they had to wade through and correct.
"They had to do this on their own. Porter hospital wouldn't help," Hillers said.
Hillers said that Indiana law doesn't allow attorneys to name a dollar amount in initial court documents.
"We're going to leave it up to them and negotiate with them," Hillers said of Porter. "My clients are distraught enough that it will be high."
"They just want it to be made right," he said.
The Wrights never received a call from the hospital while trying to correct the error. But that changed when the Post-Tribune printed a Jerry Davich column July 30 about Wright's story.
"That very night, the CEO of Porter hospital called," Hillers said.
The CEO tried to apologize, and when the Wrights asked that he speak with Hillers, he tried to get them to handle the situation without lawyers, Hillers said.
The Wrights felt after seven months, it was "too little, too late," Hillers said.
Posted by Marcia Oddi on August 5, 2008 09:11 AM
Posted to Indiana Courts
Ind. Law - Attorney Alan T. Nolan, 85, dies
Today's Indianapolis Star contains the obituary of Alan T. Nolan, prominent Indianapolis attorney and historian, who practiced 45 years with the firm of Ice Miller.
His brother Val Nolan Jr., 87, eminent ornithologist and Indiana University Professor Emeritus of Law and Biology died March 27, 2008 in Bloomington.
Posted by Marcia Oddi on August 5, 2008 07:58 AM
Posted to General Law Related
Monday, August 04, 2008
Ind. Decisions - 7th Circuit issues 2 Indiana opinions today
In US V. Broadnax (ND Ind., Judge Sharp), a 14-page opinion, Judge Wood writes:
Having concluded that the district court properly found the sentence that the Guidelines recommend for Broadnax’s offense, all that remains for us is to ensure that the court recognized the advisory nature of the Guidelines and took into account the factors set forth in 18 U.S.C. § 3553(a). The record leaves no doubt that the court knew what it was supposed to do. During the sentencing hearing, the court expressly stated that the decision whether to impose consecutive versus concurrent sentences was “my call.” And before making that call, the court thoroughly and on the record addressed the statutory factors as required by § 3553(a), and only thereafter decided that this situation called for Broadnax’s sentences to run consecutively, rather than concurrently. Nothing about this process constituted legal error or an abuse of discretion, and so we reject Broadnax’s challenge to his sentence.In US v. Stewart (SD Ind., Judge Young), a 15-page opinion, Judge Sykes writes:III. The judgment of the district court is AFFIRMED.
We affirm. Whether the interrogating officer deliberately withheld Miranda warnings as part of a two-step interrogation process designed to elicit an unwarned confession is a question of fact that we review for clear error. The district court’s supplemental findings were not clearly erroneous, and therefore the admission of Stewart’s postwarning confession was not improper under Seibert. We also agree with the district court that the inculpatory statement Stewart made before being Mirandized was voluntary. Accordingly, although inadmissible (and not admitted) at trial, Stewart’s unwarned, first statement did not affect the admissibility of his second, fully warned and voluntary confession. See Oregon v. Elstad, 470 U.S. 298, 314 (1985).
Posted by Marcia Oddi on August 4, 2008 03:02 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Law - ILB makes the complete history of the Indiana Code of 1971 accessible; and a plea for funding
Today I am very pleased to announce that I have been able to make available online the complete legislative history of the Indiana Code of 1971. Here is the preface:
This is the complete history of the deliberations of the Indiana Statute Revision Commission, covering the course of its existence - 1969-1970.The plea. I started the Indiana Law Blog over five years ago with a number of goals:I served as the Director of the Commission. I kept a copy of every official document. These copies have been stored away for nearly 40 years, in large part because it was nearly impossible to find anything in the foot-high stack of papers.
Recently when I began looking into the current status of the Indiana Code, I turned to this invaluable history and determined to make it generally available. This involved quite a bit of effort.
I have scanned all documents [the files occupy 50MB], arranged them, and created indices making them accessible both chronologically and by topic. As they are scanned documents, they are not searchable by word. But that seems unnecessary due to the arrangements.
A lot of people whose names are now a part of history contributed to the creation of the Indiana Code of 1971. This record is a memorial to their work.
Marcia J. Oddi
August 4, 2008
- One was to keep track of Indiana appellate decisions at both the state and federal level, and to put a spotlight on our courts.
- Another was to bring together law-related stories from all over the state, and news from outside the state that might have an impact here, creating a kind of shared warehouse of knowledge -- I have seen too much of people in various counties re-solving the same problems.
- And I wanted to help create an Indiana-wide legal community so no matter whether you are a big city lawyer or in an isolated rural county, whether you are located across the border from Chicago or Louisville, you can still access the internet and read material that might actually be important to you.
- Also, and this was essential, I wanted to tie things together -- I didn't want to have to scratch my head and think -- I've read something like that before. Hence my hopefully very accessible archives, going back to 2003 and even before.
- One more goal was to show the public that "law" impacts much of what we do and is not limited to court decisions or statute books.
- A final goal was to be a spark for new ideas and new ways of doing things. For instance, well over four years ago now the Indiana Law Blog received authority to post Supreme Court transfer lists every week. And the Indiana Law Blog long argued for making not-for-publication opinions more available; as they now are.
I continue to hope that Indiana law firms, business organizations, and not-for-profit associations will sign on as substantial annual supporters of the ILB so that I may continue my efforts.
Current supporters of the ILB, to whom I am very grateful, are listed in the blog's right-hand column. The ISBA this July renewed its support for a second year. DoxPop signed on in April.
Other than these contributors, the Indiana Law Blog, along with the ILB's Resources on Judicial Retention and other similar projects I hope to undertake in the future, is entirely self-funded. Hence this plea.
Now where is that complete legislative history of the Indiana Code of 1971? Access it here.
Posted by Marcia Oddi on August 4, 2008 02:24 PM
Posted to About the Indiana Law Blog | Indiana Government | Indiana Law
Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)
For publication opinions today (4):
In Filemon Sanchez v. State of Indiana , a 5-page opinion, Judge May writes:
Filemon Sanchez appeals his sentence of forty years in the Indiana Department of Correction for Class A felony dealing in cocaine. Sanchez argues the sentence is inappropriate based on his character and the nature of his offense. * * *In Robert Rovai v. Ann Marie Rovai, a 7-page opinion, Sr. Judge Sullivan writes:The court specifically noted the amount of cocaine sold was not a factor in sentencing because it is an element of the offense. Nor did it note anything else about Sanchez’s crime to distinguish it from a typical dealing in cocaine offense. Although the nature of Sanchez’s offense is not remarkable, Sanchez’s character supports the enhancement of his sentence. We find his sentence appropriate. Affirmed.
Robert Rovai (Husband) challenges the dissolution decree dissolving his marriage with AnnMarie Rovai (Wife) insofar as it pertains to the distribution of the marital assets and liabilities. More particularly, Husband makes three claims which we rephrase as follows: (1) The court erred in specifically determining that the monetary award to husband as reduced to judgment was payable “without judgment interest.”; (2) The court erred in conditioning payment of the monetary judgment to husband on any of three occurrences, two of which were within wife’s control; and (3) The court erred in apportioning federal and state tax refunds for three years according to the respective incomes of the parties for the particular year. * * *Fern E. Firestone, et al v. American Premier Underwriters , an 8-page opinion, Sr. Judge Sharpnack writes:We conclude that the court did not err with regard to any of the issues presented by husband upon appeal; accordingly, we affirm the judgment of the court.
Appellants-Plaintiffs Wayne E. Boyd and Bunker Farms, LLC, by Dean V. Kruse (collectively “Bunker Farms”) appeal a judgment enjoining them from pursuing a quiet title action and ordering DeKalb County officials to issue title of real estate to American Premier Underwriters, Inc. (“APU”), formerly known as Penn Central Corporation. We affirm.In Michael B. Smith v. State of Indiana , a 22-page opinion, Judge May writes:Bunker Farms raises one issue for our review, which we restate as: Whether the trial court erred in concluding Bunker Farms’ claims to the subject real estate do not fall within the category of title disputes excluded from the scope of the declaratory judgment entered by the Boone Circuit Court on October 25, 2004. * * *
The trial court properly interpreted Paragraph 8 of its 2004 declaratory judgment order; therefore, its January 29, 2008 order was not erroneous. Affirmed.
Michael B. Smith appeals his conviction of murder, arguing evidence was admitted in violation of Ind. Evidence Rule 404(b) and the evidence was insufficient to support his conviction. * * *NFP civil opinions today (2):There was sufficient evidence for a rational jury to find Michael guilty of murder. Affirmed.
Kevin R. Boyd, et al v. The Board of County Commissioners of Daviess County, Indiana (NFP) - "Boyd argues, without citation to authority, that it is for the court, rather than a party, to invoke the public standing doctrine. 'A party waives an issue where he fails to develop a cogent argument or provide adequate citation to authority and portions of the record.' City of East Chicago v. East Chicago Second Century, Inc., 878 N.E.2d 358, 369 (Ind. Ct. App. 2007), reh’g denied; see also Ind. App. R. 46(A)(8)(a). Therefore, we affirm the dismissal of Boyd’s case."
In the Matter of L.A.R., Janel R. v. Tippecanoe Co. Dept. of Child Services (NFP) - "Nevertheless, we note that, even if Mother’s reports to Reynolds and Stone were inaccurate, other findings by the trial court are more than adequate to support the determination L.A.R. is a CHINS." Affirmed.
NFP criminal opinions today (5):
Stephen J. Taylor v. State of Indiana (NFP)
Roy Singh v. State of Indiana (NFP)
Taro Brewer v. State of Indiana (NFP)
Antwan Jumar Love v. State of Indiana (NFP)
Michael L. Cox v. State of Indiana (NFP)
Posted by Marcia Oddi on August 4, 2008 02:08 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "It's time to open up our Hoosier courts to cameras: Technology has changed the meaning of having a public trial"
An excellent editorial today in the Fort Wayne News Sentinel:
The Indiana Supreme Court should just decide one way or the other whether to allow cameras in the courtroom instead of continuing to tease Hoosiers with the issue.The court approved an 18-month pilot program allowing cameras in certain court- rooms, but only if all involved agreed. Only six cases ended up being involved, because in many cases defendants and their lawyers objected. All the judges involved in the pilot program gave positive reactions, and the Supreme Court justices are now said to be “reviewing the results.”
Now the state high court has announced it will let a documentary maker film inside a Lake County juvenile court, giving supporters of cameras in court new hope. “I see this as another good sign moving forward,” said Dan Byron, general counsel for the Indiana Broadcasters Association. The broadcasters and the Hoosier State Press Association have led the fight to get still cameras and TV cameras into courts.
They have a vested interest, of course. Courtrooms produce riveting human drama, and that can translate into more readers and viewers. But they are also pursuing their mission to keep the public informed.
Trials are meant to be public. At one time that required people to actually attend or to depend on the accounts of writers hired to watch the proceedings. Technology has evolved to allow people to follow the proceedings even if they're not physically present. The criminal justice system just needs to keep up with technology.
Justices at least seem aware of the need. Cameras have been allowed inside the Indiana Supreme Court and the Indiana Court of Appeals, and both courts have offered Webcasts of their hearings since 2001.
The strongest arguments against the cameras are that they could intimidate witnesses and jurors or that some in the proceedings might have a tendency to “play to the camera.” But other states have long allowed cameras, and they seem able to handle the potential negative side effects.
And the potential good so outweighs the potential bad. If people have a better understanding of what goes on in courtrooms, they are more likely to have faith in the system, and that faith is an essential part of achieving justice. It's time to bring Indiana courts into the modern era.
Posted by Marcia Oddi on August 4, 2008 11:54 AM
Posted to Indiana Courts
Law - Employee cellphones a fringe beneifit, per IRS
From a July 28th story by Jim Puzzanghera of the Los Angeles Times:
Times and technology have changed. Federal tax rules have not. The Internal Revenue Service still considers cellphones to be a pricey fringe benefit and has started enforcing regulations beginning in 1989. That's when Congress decided that mobile phones should be treated like company cars and other executive perks: Their personal use qualifies as extra compensation.The law requires employees to keep detailed records of all calls made on their work-issue cellphones, indicating whether they were business or personal. If they don't, the phone and wireless service are deemed a perk that must be listed as taxable income to the employee.
Most employers were unaware of the rules until the last few years, when the IRS began cracking down and requiring additional taxes to cover the value of the cellphone service provided to employees.
UCLA, for example, was hit with a $239,196 bill this year after IRS auditors found that employees with cellphones were not keeping logs. UC San Diego had to shell out $186,471 for the same reason.
Posted by Marcia Oddi on August 4, 2008 10:15 AM
Posted to General Law Related
Ind. Decisions - "Lawyers and Employers Take The Fight to 'Workplace Bullies'"
Indiana's "workplace bullying" case, Daniel H. Raess, M.D. v. Joseph E. Doescher (ILB summary here), about which the ILB has had many entries, is the subject of a column by Cari Tuna today in the WSJ's Career Journal that begins:
A recent U.S. court case and new research are focusing attention on "workplace bullying," prompting some employers to take steps to curb aggressive behavior.[More] More today about workplace issues. "N.J. justices add religion jokes to workplace ban" - see the entry from How Appealing. "Desk Rage" - see the entry from ABA Journal Blog.Experts define workplace bullying as subtle, persistent and often nondiscriminatory harassment of co-workers. Unlike sexual or racial harassment, workplace bullying isn't necessarily illegal. But bullying can contribute to absenteeism and turnover and escalate into illegal behavior if left unchecked, experts say.
In April, the Indiana Supreme Court reinstated a $325,000 verdict for Joseph Doescher, a former medical technician who had sued Daniel Raess, a cardiovascular surgeon, for assault in 2002.
Mr. Doescher's attorneys portrayed Dr. Raess as a verbally abusive workplace bully. In the 2002 incident, Mr. Doescher claimed Dr. Raess yelled at and advanced toward him with clenched fists. Dr. Raess's lawyers argued that the bully label was irrelevant and the surgeon's actions didn't amount to assault. But four of the five justices disagreed, deeming workplace bullying an "entirely appropriate" term.
The ruling doesn't mean that employees can sue for workplace bullying alone. But Kevin Betz, who represented Mr. Doescher, calls the ruling "a major breakthrough," as the first time a court recognized bullying as an issue. Dr. Raess couldn't be reached for comment, and his lawyer, Karl Mulvaney, declined to comment.
Posted by Marcia Oddi on August 4, 2008 08:58 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Courts - Sound Bend Tribune starts new series on sentencing by St. Joe County courts
The South Bend Tribune had a series in the fall of 2006 titled "Judging the Judges." The last story in the series, as quoted in this Sept. 28, 2006 ILB entry, was about problems with inconsistency in sentencing.
Sunday the Tribune began a new series, reported again by Jeff Parrott.
Sunday's report focuses on "How often are St. Joseph County judges letting high-level drug offenders avoid prison?" A quote from Sunday's lengthy story:
Under Indiana law, dealing in cocaine, methamphetamines, heroin and other narcotic drugs is a Class A felony, punishable by 20 to 50 years in prison. But a 2001 state law aimed at stemming the spread of methamphetamine abuse might have had an unintended consequence.The law also gave judges, for the first time, discretion to commit Class A and B felony drug convicts, no matter the drug involved, to community corrections programs without ever sending them to prison.
St. Joseph County judges have made frequent use of that option, according to a Tribune analysis of court records. Since 2003, 17 of the 45 defendants convicted of Class A felony drug crimes — dealing or possessing large amounts, or possessing the drugs near schools, parks and youth centers — received suspended sentences, to be served in community corrections and on probation instead of prison.
In other words, about 38 percent of convicted drug dealers have avoided prison — at least before going on to commit new crimes later.
Monday's report: "How successful is predicting whether offenders will violate probation or commit new crimes?" Some quotes from the lengthy story:
Two convicted drug dealers who have been charged with killing people after they had received prison-free sentences represent extreme cases, but they are hardly alone in having violated probation, according to a Tribune analysis of court records. * * *Sunday's story is accompanied by this useful sidebar:Judges are basing their sentencing decisions partly on the presentence investigation report that they order the probation department to compile for each defendant. In recent years, a key part of that report has become a "risk-assessment" tool called the Level of Service Inventory-Revised, or LSI-R.
In the LSI-R process, the probation or community corrections officer asks the defendant a series of 54 questions, on everything from their criminal history to how they spend their free time. The offender's answers make up a numerical score, which is used to establish a level of risk — low, medium or high — that they will reoffend if released into the community.
Historically, corrections and court officials had based sentencing decisions largely on their own subjective feelings about a defendant's criminal history.
Levels of community correctionsIn St. Joseph County, there are four levels of community corrections. From most restrictive to least restrictive, they are:
- Work release: Offenders live, eat and sleep at the Ducomb Center, a converted home on Madison Street in South Bend.
- Day reporting with electronic monitoring: Offenders live at home and wear electronic ankle bracelets, which transmit a signal monitored by community corrections officers.
- Home detention: Offenders live at home and are monitored electronically, and they must report to the community corrections office once a week.
- Day reporting without electronic monitoring: Offenders live at home and are monitored by random phone calls, and they report to the office daily, with reporting decreasing over time.
Posted by Marcia Oddi on August 4, 2008 08:27 AM
Posted to Indiana Courts
Courts - Still more on: The plot of John Grisham's latest novel may have already come to life in W. Va.
Updating this ILB entry from Feb. 19th, Marcia Coyle reports today in The National Law Journal that begins:
The ethical hornets' nest stirred up by the refusal of an acting West Virginia chief justice to recuse himself from a multimillion-dollar appeal involving his major campaign contributor has reached the U.S. Supreme Court in a petition framing today's increasingly unsettling intersection of money and judicial elections.The high court petition, fall-out from a bitter battle between competing coal companies, asks the justices to resolve "a recurring issue of far-reaching national importance." When, in the context of campaign contributions, does due process demand a judge's recusal? Caperton v. A.T. Massey Coal Co., No. 08-22.
"Although judicial elections -- and contributions to elected judges -- are a well-established means of selecting a state judiciary, there will be rare cases where campaign expenditures by a litigant create a constitutionally unacceptable appearance of impropriety. This is such a case," contends former Solicitor General Theodore B. Olson, co-chairman of the appellate and constitutional law group in the Washington office of Los Angeles' Gibson, Dunn & Crutcher.
As the amount of money poured into judicial elections skyrockets -- as documented by news and scholarly reports -- the number of instances in which a litigant or an attorney has contributed significant funds to a judge also will increase, and so too will recusal requests, said Olson, who represents Hugh Caperton, president of Harman Mining Co.
"A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge," he said.
Posted by Marcia Oddi on August 4, 2008 08:23 AM
Posted to Courts in general
Ind. Courts - Security will be beefed up at the East Chicago courthouse
Lori Caldwell of the Gary Post-Tribune writes today:
Every hearing for a protective order has potential for an emotional, sometimes hostile confrontation.The victims seeking court-ordered solace from an abuser must make their request in public, before a judge, and often, with the abuser in the same room.
For Lake Superior Court Judge Calvin D. Hawkins, these cases pose a danger for himself, his staff and every member of the public at the East Chicago courthouse.
"With the volume of work we are getting, there needs to be someone to make sure people are orderly," Hawkins said.
For several weeks, he and Lake County Sheriff Roy Dominguez corresponded regarding what Hawkins said was a shortage of deputies in the building.
"Court filings were down drastically here prior to my arrival, now they have drastically gone up," Hawkins said.
This year Hawkins has presided over more than 100 protective orders, while there were none filed in his court in 2007.
Dominguez and Hawkins met last week and agreed on changes that will increase security in and around the courthouse.
"We added security without additional employees to the payroll," Dominguez said. * * *
"We're living in a different world. Rather than wait for something to happen and then say it's a tragedy, I thought it was important to address this now," Hawkins said.
"The sheriff's office is more sensitized to that," he added.
Hawkins said he has also discussed security issues with Mayor George Pabey.
"Now, periodically, there is police presence above and beyond what we already have. I am extremely appreciative," Hawkins said. The judge said he will attend a seminar on court security next month.
Posted by Marcia Oddi on August 4, 2008 08:18 AM
Posted to Indiana Courts
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
None scheduled.
This week's oral arguments before the Court of Appeals that will be webcast:
None scheduled.
This week's oral arguments before the Court of Appeals that will NOT be webcast:
None scheduled.
Posted by Marcia Oddi on August 4, 2008 08:16 AM
Posted to Upcoming Oral Arguments
Ind. Courts - "Jurors tend to be younger in summer"
Rebecca S. Green of the Fort Wayne Journal Gazette has a lengthy story this morning that begins:
Oh, the sights of summer – parades, festivals, picnics, younger people among the pool of potential jurors.Say what?What? Younger jurors? Yep.
Each summer, for the past few years, the pool of potential jurors in Allen County – and likely elsewhere in the state – gets a bit younger, like just old-enough-to-vote younger.
The fresh(er)-faced jurors are likely a product of the changes to Indiana’s jury rules a few years ago, which barred exemptions for certain professions automatically, like veterinarians and ferry boat operators.
Posted by Marcia Oddi on August 4, 2008 08:10 AM
Posted to Indiana Courts
Sunday, August 03, 2008
Law - Strict Construction & Judicial Acitivism.
Lawrence B. Solum, John E. Cribbet Professor of Law & Professor of Philosophy at the University of Illinois College of Law, has a useful entry this weekend in his Legal Theory Lexicon, titled Strict Construction & Judicial Acitivism.
Posted by Marcia Oddi on August 3, 2008 04:40 PM
Posted to General Law Related
Law - "If You Run a Red Light, Will Everyone Know?"
That is the headline to an essay today in the NY Times, written by Brad Stone, who covers Internet trends and consumer technology for the Times. Some quotes:
WANT to vet a baby sitter? Need to peek into the background of a prospective employee? Curious about the past of a potential date?There is much more in the article. More is presented by the same author in this NYT Technology Blog entry by the same author headed "Is ChoicePoint a Model of Restraint in Releasing Criminal Records?" - it begins:Last month, PeopleFinders, a 20-year-old company based in Sacramento, introduced CriminalSearches.com, a free service to satisfy those common impulses. The site, which is supported by ads, lets people search by name through criminal archives of all 50 states and 3,500 counties in the United States. In the process, it just might upset a sensitive social balance once preserved by the difficulty of obtaining public documents like criminal records.
Academics have a term for the old inaccessibility of records like those for criminal convictions: “practical obscurity.” Once upon a time, people in search of this data had to hire private investigators to navigate byzantine courthouses and rudimentary filing or computer systems, and to deal with often grim-faced legal clerks. In a way, the obstacles to getting criminal information maintained a valuable, ignorance-fueled civil peace. Convicts could start fresh after serving their time without strangers knowing their pasts, and there was little risk that unsophisticated researchers could confuse people with identical names.
Well, not anymore. The information on CriminalSearches.com is available to all comers. “Do you really know who people are?” the site blares in large script at the top of the page.
In Sunday’s paper, I write about CriminalSearches.com, the first free, ad-supported database of criminal archives in all 50 states and 3,500 counties in the United States. The site presents the entertaining and somewhat guilt-inducing opportunity to dig for dirt on all your friends and colleagues.Thoughts from the ILB: The story raises a number of issues. Here is one you may not have immediately thought of.It also promises to tear apart the social fabric. What kind of society do we live in if people can look up criminal histories on each other without restriction, then rush to judgment based on incomplete and often confusing information? The story deals with that thorny question.
One perspective that did not make it into the piece came from data aggregator ChoicePoint. One of its divisions has the same records as CriminalSearches.com, but chooses to make them available only to companies and not the general public. I asked the company why.
I checked my name on CriminalSearches.com and nothing turned up. Then I checked the names of a couple Indiana convicted criminals and nothing turned up. Then I did a search using only "Indiana" and 50 names turned up, but only two of them had an address in Indiana, and when I checked further, these were identified as "possible previous addresses."
Suspicious now, I picked a last name at random, "Mongomery," and added "Indiana" as the location. I got 16 results, with Indiana addresses. But as I looked at the details of each result, I did not find one that gave an Indiana entity as the source of the information.
Conclusion? Indiana crimes/convictions are not covered. But nothing on the site that I could find leads one to the conclusion that all jurisdictions are not covered. On the contrary, there is a drop-down box for Indiana.
At the end of the Times story, Bryce Lane, president of PeopleFinders, which runs the database, "compares his site to the seat belt, saying it will make everyone safer." Perhaps, but at least insofar as Indiana criminal history is concerned , it looks like people could rely on it to their detriment.
Posted by Marcia Oddi on August 3, 2008 12:25 PM
Posted to General Law Related
Environment - More on: "EPA Closure of Libraries Faulted For Curbing Access to Key Data"
Updating this ILB entry from March 15th, The Volokh Conspiracy reports the good news that the libraries will be reopening by the end of September.
Posted by Marcia Oddi on August 3, 2008 09:46 AM
Posted to Environment
Ind. Courts - More re: U.S. District Judge Joseph Van Bokkelen first jury trial [Updated]
Updating this ILB entry from July 7th, quoting a NWI Times story by Joe Carlson, today the Times has a story reported by Carolyn Thompson, headlined "Judge rules in favor of fired worker." Some quotes:
HAMMOND | U.S. District Judge Joseph Van Bokkelen on Friday ruled in favor of Blanca Camacho in her wrongful termination suit against East Chicago. Late last year, a federal jury returned verdicts totaling $250,000 in favor of Camacho.[Updated 8/5/08] A story in the Gary P-T today includes this quote:Camacho's attorney, Anthony DeBonis, said that Van Bokkelen entered judgment on the verdict in full and he and his client were pleased.
Damian Rico, East Chicago spokesman, said City Attorney Carmen Fernandez would file an appeal. * * *
East Chicago attorneys would have to appeal to the U.S. Court of Appeals in Chicago, which will take about a year and a half, DeBonis said.
Camacho was working as a restaurant inspector when she was fired in 2005, just months after Mayor George Pabey took office. She said she was fired for political reasons and sued Pabey, the city and its human resources chief, records show.
Jurors in November awarded her $250,000, including $25,000 in punitive damages, for violation of her First Amendment rights.
In April, East Chicago attorneys filed a motion asking the judge to reverse the verdict and enter a judgment on the grounds of insufficient evidence.
Documents show Camacho is among more than two dozen former East Chicago workers who were fired shortly after Pabey took office. She is the only city worker to have a jury decide in her favor.
DeBonis has filed 17 wrongful termination lawsuits against the city since Pabey took office.So far, only Camacho has reached trial. Camacho made less than $40,000 a year in her job as a restaurant inspector, DeBonis said.
In a similar case, Joanna Kollintzas, wife of former City Councilman Frank Kollintzas, and her daughter, Thespena, reached a $350,000 settlement with the School-City, which is controlled by Pabey appointees on the School Board. Other DeBonis clients have reached smaller settlements.
Debonis said Monday he had been contacted by "numerous" employees who were dismissed in June in another wave of payroll cuts.
Posted by Marcia Oddi on August 3, 2008 09:20 AM
Posted to Ind Fed D.Ct. Decisions
Ind. Courts - Distribution of cases when two judges facing charges
Rebecca S. Green of the Fort Wayne Journal Gazette has a lengthy story today about the distribution of cases in Allen County courts, where two judges are facing charges. Some quotes:
Can a judge who has a pending drunken-driving case preside over other cases involving alcohol-related offenses? Should a judge accused of speaking derogatorily about a man he believed sold his late son drugs continue to handle cases involving accused drug dealers?With two local judges making news in recent weeks, facing those exact allegations, some in the community might be asking those exact questions.
While other professions might have ethical questions or potential conflicts of interest handled by specific boards or commissions, when it is a judge, the decision about what is a conflict of interest rests solely with the individual judge.
In the past month, Allen Superior Court Judge Kenneth R. Scheibenberger and Allen Circuit Court Judge Thomas J. Felts made headlines for allegations of professional misconduct and drunken driving, respectively.
The Indiana Commission on Judicial Qualifications filed formal charges with the Indiana Supreme Court on July 15 against Scheibenberger, accusing him of violating the rules of judicial conduct when he got into a verbal altercation with the family of a criminal defendant in another courtroom last November. * * *
Scheibenberger handles many of Allen County’s low-level felony cases, many of which involve illegal drugs.
Days after Scheibenberger was charged, Felts, 53, was arrested in the early-morning hours of July 18 in downtown Indianapolis after being pulled over by Capitol Police for failing to use his turn signal. According to court documents, Felts’ eyes were glassy, his speech was slurred, and he admitted to drinking. He was arrested and charged with operating a motor vehicle while intoxicated and public intoxication.
Felts, the sole Circuit Court judge, handles both civil and criminal cases. The majority of the criminal cases he handles involve alcohol.
Posted by Marcia Oddi on August 3, 2008 09:13 AM
Posted to Indiana Courts
Courts - "Ky. court fees spike sharply under new deal"
Jason Riley of the Louisville Courier Journal has a story today on the increased court costs in Kentucky. Some quotes:
Looking to get a court case expunged in Kentucky? The court fee just shot up to $100 from $25.Here is a chart on Kentucky fees that accompanies the story.And you better bring extra money to the courthouse if you want to file a lawsuit -- which increased $35 -- or post a bond for somebody, because the bond filing fee jumped more than sixfold, to $25 from $4.
Almost three dozen fees in courts across the state rose last month in a deal completed on May 22 among Kentucky's Supreme Court, court officials and legislators.
The deal is expected to raise an additional $20 million over the next two years. The first $5 million each year will go back to the courts and the rest to Kentucky's General Fund, which pays for most state programs.
Both state and court officials say the higher fees were set to help counter state budget cuts, including a $55 million reduction in the judiciary budget over the next two years.
"It was essential," said Jason Nemes, director of the Administrative Office of the Courts. "The state is in a very difficult financial situation, and the judiciary is in the same boat."
Some court officials across the state, as well as citizens paying the new criminal and civil fees, say it is too large an increase happening too quickly, and that it hurts those least able to pay. * * *
State officials noted that Kentucky's court fees had fallen far behind those in other states and are now much more in line -- though actually a little higher.
In Ohio, the fees differ by county, but in Cincinnati, for example, it costs $50 to get a case expunged and at least $225 to file a lawsuit, compared to $100 for an expungement here and $153 to file a suit in circuit court under the new fee structure.
In Tennessee, expungements also cost $100 and filing a lawsuit can cost anywhere between $75 and $225.
Indiana, however, charges just $5 for a bond fee and $100 to file a lawsuit.
What about Indiana? First, expungement appears to be a limited remedy in Indiana. A case dealing with the issue was granted transfer on July 11th - see ILB entry here. See also this ILB entry from Feb. 24, 2007 and its links. And if you are a lawyer who has been disciplined , you are totally out of luck - the Supreme Court has no procedures to expunge a lawyer’s record of professional misconduct - see this Feb. 26, 2007 ILB entry.
Second, re Indiana's court costs, three years ago the Fort Wayne Journal Gazette had several articles on soaring court costs in Indiana. The stories are quoted in this Aug. 14, 2005 ILB entry. Some quotes from the JG:
Fees and costs work somewhat differently in civil and criminal courts, although usually contain three possible layers.Here is !C 33-37, dealing with court fees. I've been unable to locate a simple, one-page statement of current Indiana court fees.When a case of any kind is filed in a civil court the filer is charged a fee. The majority of that fee consists of a base $100 but over the years legislators have added fees. For instance, to initiate divorce proceedings costs $130. The additional $30 encompasses a second layer of fees: a document storage fee, an automated record keeping fee, a public defense administration fee, a judicial insurance adjustment fee, a judicial salaries fee and a court administration fee.
And the cost could go even higher depending on a third layer of fees that are discretionary to each county or judge, such as a $20 alternative dispute resolution fee collected in Allen County that kicks the cost to $150.
On the criminal side, the costs are paid only after conviction. The base criminal costs are $120 but a second layer of mandatory fees makes it $156 for felonies and misdemeanors and $106 for infractions and ordinance violations.
There are about a dozen other possible fees that can be added by a judge in specific cases, such as a child abuse prevention fee, domestic violence prevention and treatment fee, a safe schools fee and highway work zone fee. * * *
The most dramatic increase in court fees, and the one that seems to ring an alarm bell, is in the small-claims division.
Known as a citizens’ court, this is where average Hoosiers come to settle smaller monetary disputes without an attorney.
In 2000, the cost to file a small-claims case was just $35, which can be recouped if a person wins the case.
But as of July, that filing fee has doubled to $70 and is among the highest in the nation, according to Tom Gordon, senior counsel for HALT, a consumer advocacy group based in Washington, D.C., that focuses on the consumption of legal services.
Posted by Marcia Oddi on August 3, 2008 08:11 AM
Posted to Courts in general
Saturday, August 02, 2008
Ind. Courts - "Officials unveil Vigo County Courthouse renovation"
Crystal Garcia reports today in the Terre Haute Trib-Star:
Nearly four years and more than $13 million later, the 19th century Vigo County Courthouse’s 21st century renovation is complete.This ILB entry from June 22nd links to another, still available, Trib-Star story that has a number of photos of the renovations.Past and present county officeholders spread a ribbon in front of the entrance Friday as commissioner David Decker cut it with the ceremonial large pair of scissors before the community was allowed inside to tour the courthouse.
County historian Mike McCormick was the master of ceremonies for a brief program before the ribbon-cutting. He was also on hand to explain the history of the structure.
Judge Phillip Adler of Vigo County Superior Court Division 2 has worked in the building for 25 years, during which the courthouse had two temperatures: too hot and too cold, he said at the ceremony. * * *
Originally dedicated June 7, 1888, the courthouse now has all new plumbing, electrical and heating and cooling equipment as well as new duct work, telecommunications and data wiring. The restroom count has doubled to 25, giving each court a staff restroom and jury restroom in addition to seven main restrooms.
The initial structure cost $443,000 to build, the renovations: $13.65 million. Some other improvements include two fire stairs, an extra elevator, 100 historic doors and almost 100 historic light fixtures.
With all the energy-saving changes, the county will save more than $3.81 million in a 10-year period.
Posted by Marcia Oddi on August 2, 2008 11:16 AM
Posted to Indiana Courts
Ind. Courts - "Judge orders arrest of no-show juror"
Bill Dolan reports today in the NWI Times in a story that begins:
CROWN POINT | A judge ordered the arrest Friday of a former Lake County Criminal Court juror suspected of lying and avoiding jury duty last spring.Court records indicate Judge Thomas Stefaniak Jr. issued the warrant for Michael Leibengood after Leibengood failed to appear Thursday for a court hearing to discuss the juror's conduct during the spring murder trial of Antonio Rose.
Posted by Marcia Oddi on August 2, 2008 11:11 AM
Posted to Indiana Courts
Environment - Great Lakes Compact passes US Senate
Jeff Burton reports in the NWI Times:
PORTAGE | The U.S. Senate approved an interstate agreement that creates unified standards for Great Lakes water and resource management Friday, moving the compact a step closer to becoming law.The agreement, negotiated and approved by eight Great Lakes states, addresses a freshwater shortage and prevents countries or remote states from tapping into the lakes from their natural drainage basin. It also requires states to regulate large-scale water uses.
Posted by Marcia Oddi on August 2, 2008 10:12 AM
Posted to Environment
Ind. Decisions - "Appellate court reverses ruling on school shooting"
The Court of Appeals opinion July 28th in the case of Gary Community School Corp. v. Neal Boyd III and Theresa Stanback (see ILB entry here, 5th case) is the subject of a story today in the Gary Post Tribune by Sharlonda Waterhouse. Some quotes:
The Indiana Court of Appeals reversed a decision against the Gary Community School Corp. this week, calling for a new trial in the case of the family of Neal Boyd, who sued after he was shot and killed at Lew Wallace High School.A jury had awarded damages $2,162,675 to the family.
In 2001, Boyd, 16, was shot on the steps of Lew Wallace. After a 2006 mistrial, the Boyd family won a complaint in 2007 in Lake County Superior Court, after alleging the school district was negligent in providing reasonable safety.
Gary attorney Tracy Coleman sought an appeal on behalf of the school district arguing that the district should have been immune from responsibility and that the trial court should not have admitted evidence of past violence at Lew Wallace.
Appellate Judge James S. Kirsch agreed to the latter argument but not immunity in siding with Coleman. * * *
In his written decision, Judge Kirsch said evidence of past violence at Lew Wallace was often too many years prior to Boyd's death or involved different circumstances -- such as students getting hit by stray bullets. The judge ruled such evidence created prejudice against the school district.
"The trial court therefore abused its discretion and the admission of the evidence of prior violence was a reversible error," the judge wrote.
Posted by Marcia Oddi on August 2, 2008 09:22 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Both Clark County judicial nominees certifed by State Election Board
The ballot dispute in Clark County appeals to be resolved. See the most recent earlier ILB entry here, from Aug. 30th.
Dann A. Mann of the Jeffersonville News & Tribune reported last evening:
Both candidates for Clark County’s Circuit Court Judge seat will be on the ballot this November, following a pair of votes by the Indiana Election Commission on Friday.Lesley Stedman Weidenbener of the Louisville Courier Journal reports today:After an hour-long hearing in Indianapolis, the commission voted 4-0 to throw out a challenge to the candidacy of Republican Abe Navarro, which had been made by Democrats. It then voted 4-0 to allow Democrat candidate Dan Moore on the ballot, despite technical errors.
The Indiana Election Commission decided yesterday to put the Republican and Democratic candidates for Clark Circuit judge on the Nov. 4 ballot.
AdvertisementIn a unanimous ruling that can be appealed, commission members said the parties and candidates -- Republican Abe Navarro and Democrat Dan Moore -- made errors in filing papers with the Indiana Election Division that could have resulted in neither being certified.
But they also acknowledged that the election laws and rules were confusing.
"We want to err on the side of putting people on the ballot so voters get to make the decision," said Sarah Steele Riordan, a Republican on the four-member panel.
The ruling ended a sometimes bewildering discussion in which attorneys for the candidates attempted to show how their side met the various filing and other requirements and their opponents did not.
In the end, however, commission members seemed less concerned with the technicalities than the potential impact of having no candidate running for the office, which was vacated in May when Judge Daniel Donahue retired.
Gov. Mitch Daniels appointed Navarro to serve through the end of the year.
After yesterday's meeting, commission Chairman Tom Wheeler said the General Assembly and the courts have directed the panel to read the laws "liberally to give the people the ability to make decisions on these candidates." * * *
The commission, which also is split with two Republicans and two Democrats, appeared frustrated by the arguments and united in finding a bipartisan compromise. Wheeler said a 2-2 vote would likely have left neither candidate on the ballot.
"From my standpoint, that is a bad result," Wheeler told the candidates and their attorneys. "That forces you into litigation."
Moore said he has no interest in taking the commission's ruling to court. But Buskill said Republicans will have to decide "if it's worth doing anything. … We'll look at our options."
Posted by Marcia Oddi on August 2, 2008 09:11 AM
Posted to Indiana Courts
Ind. Courts - More again today on the Delaware County drug forfeiture investigation
The most recent ILB entry on the drug forfeiture investigation in Delaware County was July 30. Today Rick Yencer of the Muncie Star-Press reports in a story that begins:
An ongoing investigation into the possible misuse of seized funds by the Muncie-Delaware County Drug Task Force this week uncovered two new cases in which Delaware County Prosecutor Mark McKinney played a key role.McKinney signed off on a handful of civil forfeiture cases last year among more than 70 pending or ordered by Delaware Circuit Court 4 John Feick. McKinney insists payments he received last year for work on forfeiture cases and signing off on affidavits and judgments as the DTF attorney was for duties performed before he took office as the county's elected prosecutor in January 1997.
State law prohibits a full-time prosecutor from maintaining a private law practice.
"I have not committed a crime," McKinney said following a hearing this week. The prosecutor also said he had no intention of stepping down as a result of ongoing investigations by Circuit Court 2 Judge Richard Dailey and the Indiana Supreme Court's disciplinary commission, which is reviewing a complaint from Mayor Sharon McShurley about McKinney's handling of forfeiture cases.
The latest cases subject to review by Judge Dailey involve convicted felons Bradley Chappell and Kelvin Lampkins. In both cases, McKinney signed orders last year disbursing funds the to DTF and was paid as DTF attorney.
In a third case, money was disbursed, without a court order, through a confidential settlement with high profile fugitive Adrian Kirtz.
In another case, Feick recently ordered the DTF to return $25,212 seized without a court order to the county clerk's office pending disposition.
Posted by Marcia Oddi on August 2, 2008 09:02 AM
Posted to Indiana Courts
Friday, August 01, 2008
Ind. Decisions - More on: Court grants transfer in 3 cases
I've just learned there will be no transfer list this week, so expect to see the three transfers listed earlier today on next week's list.
Posted by Marcia Oddi on August 1, 2008 02:34 PM
Posted to Indiana Transfer Lists
Ind. Decisions - Court grants transfer in 3 cases
The formal transfer list should follow later today, but the ILB has received advance notice about three cases granted transfer, two yesterday, July 31st, and one today, August 1st.:
Estate of Prickett v. Womersley - See 4/10/08 NFP COA re an interlocutory appeal here (6th NFP decision), concerns Womersley’s claim for compensation and reimbursement “for the time that [she] spent attending to [her mother’s] needs."
McSwane v. Bloomington Hosp - A 2-1 COA opinion issued March 12th (see ILB entry here, 4th case), where "Bloomington Hospital treated Malia Vandeneede for injuries she said she sustained when she fell off a horse onto some debris. After treatment, she was discharged into her former husband’s custody. He killed her on their way home, then killed himself." Held: "The Hospital therefore should not have been granted summary judgment on the ground it owed Malia no duty."
Kerry Meredith v. State - See Dec. 28, 2007 COA opinion here and petition for rehearing here - concerns, as summarized in this ILB entry, admissibility of cocaine "obtained pursuant to a legitimate traffic stop for an improperly displayed temporary vehicle tag. We grant the State’s petition for the sole purpose of clarifying that, while the initial traffic stop was legitimate, the investigating officer’s probable cause or reasonable suspicion to detain Meredith had expired well before the discovery of cocaine in Meredith’s vehicle."
Posted by Marcia Oddi on August 1, 2008 01:39 PM
Posted to Indiana Transfer Lists
Environment - "Indiana's worst beaches not in Porter County"
That is the "good" news. The bad news was published in an AP story in the Porter County-based Chesterton Tribune yesterday and in this story by Gitte Laasby in the Gary Post Tribune on July 30th:
Indiana had nearly twice as many beach closings in 2007 as it did the year before, according to a report released Tuesday by the Natural Resources Defense Council.Total closing and advisory days increased to 213 days, the highest level of closures in 18 years. That's nearly twice as many as the 111 days of closing and advisory days in 2006.
Total closing and advisory days increased to 213 days, the highest level of closures in 18 years. That's nearly twice as many as the 111 days of closing and advisory days in 2006.
High levels of E. coli bacteria contribute to illnesses for swimmers, such as diarrhea, ear, nose and throat problems and hepatitis. It also negatively impacts the tourism industry and the economy because the cost of closing a Lake Michigan beach is estimated at $8,000 to $37,000 per day, according to the report.
High levels of E. coli bacteria contribute to illnesses for swimmers, such as diarrhea, ear, nose and throat problems and hepatitis. It also negatively impacts the tourism industry and the economy because the cost of closing a Lake Michigan beach is estimated at $8,000 to $37,000 per day, according to the report. * * *
The worst beaches in Indiana were Jeorse Park near the marina in East Chicago and Washington Park in LaPorte County. Jeorse Park beach exceeded Indiana's maximum acceptable level of E. coli bacteria 52 percent of the time samples were taken. Washington Park beach exceeded the limit 42 percent of the time, according to the report. Most of the beaches sampled were in the teens.
Posted by Marcia Oddi on August 1, 2008 11:10 AM
Posted to Environment
Ind. Decisions - More on 7th Circuit decision yesterday in US V. Gladish
In US V. Gladish, decided yesterday (see ILB summary here), Judge Posner ruled:
The defendant’s conviction of violating 18 U.S.C. § 2422(b) is reversed with instructions to acquit. The sentence for violating section 1470 will stand.It appears the defendant, who was arrested in St. Joseph County, was one of 24 arrested for child solicitation in August of 2006, according to this story from Aug. 23, 2006 by Sophia Voravang of the Lafayette Journal & Courier. From the story:
This weekend, detectives in Tippecanoe, Porter and St. Joseph counties arrested 24 men accused of trying to coerce teen girls online to engage in alleged sexual activity, U.S. attorney Joseph Van Bokkelen of Indiana's Northern District announced Tuesday morning.It appears from the story that only some of those arrested actually traveled to a proposed meeting place:
Eleven of the men arrested during the 21-day-long federal sting actually traveled to a proposed meeting place, including five who came to Tippecanoe County. The other arrests were based on alleged explicit chatroom conversations.This story yesterday in the Journal & Courier gives the sentencing information from the 2006 Tippecanoe County arrests, both those who actually traveled to the proposed meeting place and those who did not. The ILB has not located similar information for the Porter and St. County arrests.
Posted by Marcia Oddi on August 1, 2008 10:40 AM
Posted to Ind. (7th Cir.) Decisions
Courts - Kentucky judge rules highway bill is invalid
I haven't had a chance to look into this matter facing our sister state to the south, but it does appear interesting - Tom Loftus reports today in the LCJ in a story that begins:
FRANKFORT, Ky. -- The General Assembly's 2008 highway construction bill is invalid because it was not delivered to the governor on time, a judge ruled yesterday.Franklin Circuit Judge Phillip Shepherd said the bill was not delivered to Gov. Steve Beshear until April 16 -- one day after the General Assembly was required by the Kentucky Constitution to adjourn -- and was therefore "null and void."
The ruling came in a lawsuit brought by Senate President David Williams, challenging the validity of Beshear's veto of the bill and the governor's subsequent decision to devise his own road plan, one that had not been passed by the legislature.
Williams' suit claims that Beshear missed by one day the constitutional deadline to veto the legislature's plan, House Bill 79. And even if the veto was valid, the suit contends, state funds can be spent only under a road plan adopted by the General Assembly.
Both sides in the case agreed to first resolve the question of whether Beshear had vetoed the bill in time. But in a surprising order, Shepherd ruled that the question is "moot" because the General Assembly missed its deadline to get the bill to Beshear.
At the same time, the judge acknowledged that he was ruling on an issue on which the two sides had not submitted written briefs. Because of that, he said he would allow the parties to file arguments asking him to reconsider.
Posted by Marcia Oddi on August 1, 2008 10:16 AM
Posted to Courts in general
Ind. Courts - Still continuing with "Judicial candidate's registration in question"
Updating this ILB entry from July 29th, on the upcoming Indiana Election Commission hearing Friday in Indianapolis (set for today) to review the nominations for Clark Circuit Court judge, Ben Zion Hershberg reports today in the Louisville Courier Journal:
A Democratic precinct committeeman in Clark County is circulating a petition asking the Indiana Election Commission to give the Republican and Democratic candidates for Circuit Court judge 30 more days to properly file their nominating documents.Edward Culpepper Cooper said he decided to circulate the petition because of strong support for Democratic candidate Dan Moore at the party caucus in June, and he wanted the commission to know how people felt.
"We're asking them to allow both people to be on the ballot" because the voters deserve to choose, Cooper said yesterday.
The commission, which oversees state election procedures, is to hold a hearing today in Indianapolis to consider questions that have been raised about both parties' judicial nominees. * * *
David Buskill, the Clark County Republican chairman, said he doesn't believe the petition will have an impact on the commission's decision.
"The law will determine the decision," he said, adding that he believes Navarro was nominated properly.
Leslie Barnes, the Democratic co-general counsel of the election division that advises the commission, said she wasn't aware of the commission ever extending a filing deadline for nomination documents.
The deadline for the Nov. 4 general election was noon July 3.
Posted by Marcia Oddi on August 1, 2008 10:08 AM
Posted to Indiana Courts
Thursday, July 31, 2008
Ind. Decisions - 7th Circuit issues one Indiana decision today
In US V. Gladish (ND Ind., CJ Miller), an 8-page opinion, Judge Posner writes:
A jury convicted the defendant of having violated two federal statutes: 18 U.S.C. § 1470, which prohibits knowingly transferring or attempting to transfer obscene material to a person under 16, and 18 U.S.C. § 2422(b), which, so far as bears on this case, forbids knowingly attempting to persuade, induce, entice, or coerce a person under 18 to engage either in prostitution or in any sexual activity for which one could be charged with a criminal offense. * * *The defendant challenges only his conviction for violating section 2422(b). * * *
The defendant of course did not succeed in getting “Abagail” to have sex with him, and if he had, he would not have been guilty of a completed violation of section 2422(b) because the agent who called herself “Abagail” was not a minor. The question (the only one we need answer to resolve the appeal) is whether the defendant is guilty of having attempted to get an underage girl to have sex with him. To be guilty of an attempt you must intend the completed crime and take a “substantial step” toward its completion. ... But the term “substantial step” cannot be applied to a concrete case without an understanding of the purpose for punishing unsuccessful attempts to commit crimes. * * *
You are not punished just for saying that you want or even intend to kill someone, because most such talk doesn’t lead to action. You have to do something that makes it reasonably clear that had you not been interrupted or made a mistake—for example, the person you thought you were shooting was actually a clothier’s manikin—you would have completed the crime. * * *
In the usual prosecution based on a sting operation for attempting to have sex with an underage girl, the defendant after obtaining the pretend girl’s consent goes to meet her and is arrested upon arrival ..* * *
But the fact that the defendant in the present case said to a stranger whom he thought a young girl things like “ill suck yoru titties” and “ill kiss yrou inner thighs” and “ill let ya suck me and learn about how to do that,” while not “harmless banter,” did not indicate that he would travel to northern Indiana to do these things to her in person; nor did he invite her to meet him in southern Indiana or elsewhere.. * * *
We are surprised that the government prosecuted him under section 2422(b). Treating speech (even obscene speech) as the “substantial step” would abolish any requirement of a substantial step. It would imply that if X says to Y, “I’m planning to rob a bank,” X has committed the crime of attempted bank robbery, even though X says such things often and never acts. The requirement of proving a substantial step serves to distinguish people who pose real threats from those who are all hot air; in the case of Gladish, hot air is all the record shows. So he is entitled to an acquittal on the section 2422(b) count, the effect of which will be to reduce his sentence from 13 years to 10 years.
We add, because it bears on our analysis of the attempt issue, that the district judge should not have prevented the psychologist whom the defendant had hired as an expert witness to testify with respect to the attempt. The expert’s report states that the defendant seeks sexual gratification in Internet chat rooms and in watching pornographic films because he has a “character pathology” that has produced “a pervasive interpersonal apprehensiveness with the expectation that others will reject and disparage him.” * * *
In fairness to the district judge, we note that the defendant’s lawyer did not make as clear as he should have what the intended focus of the expert’s testimony would be. He said that the expert would testify that the defendant did not have a “real intent” to have sex with “Abagail.” But it is reasonably clear that what the lawyer meant was that the expert would testify that the defendant was unlikely to have acted on his expressed intent.
The defendant’s conviction of violating 18 U.S.C. § 2422(b) is reversed with instructions to acquit. The sentence for violating section 1470 will stand.
Posted by Marcia Oddi on July 31, 2008 02:52 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Courts - Supreme Court will again allow documentary filmmaker Karen Grau, of Calamari Productions, access to the Lake County juvenile court
From a release today on the Courts siter:
The Indiana Supreme Court will again allow documentary filmmaker Karen Grau, of Calamari Productions, access to the Lake County juvenile court, Chief Justice Randall T. Shepard announced today. Filming will begin soon in the Hon. Mary Beth Bonaventura’s courtroom. The documentary is expected to air on MSNBC in 2009.Grau plans to produce six, one-hour documentary programs. She said the goal of the series is to shed light on the issues facing the courts and the children served by the court. With that understanding, the Supreme Court agreed to allow cameras in the courtroom. Chief Justice Shepard said, “The court is always evaluating how it can more effectively help children and families in trouble. With that in mind, it is important to keep citizens informed about the issues facing the juvenile justice system. A national broadcast produced by a respected journalist is one avenue to promote that understanding.”
Having worked with Grau in the past, Judge Bonaventura believes the series will educate parents and teens. Bonaventura explained, “There was an overwhelmingly positive response to the previous MTV series. Viewers commented on the value of seeing consequences for teens involved in trouble.” Judge Bonaventura expects Grau’s new project to have similar value while highlighting more serious offenses. * * *
In February 2007, “Juvies”, an 8-part documentary series that featured Judge Bonaventura’s courtroom aired on MTV.
Posted by Marcia Oddi on July 31, 2008 01:14 PM
Posted to Indiana Courts
Ind. Decisions - Court of Appeals issues 6 today (and 14 NFP)
For publication opinions today (6):
In Robert L. Quakenbush v. Review Board of the Indiana Dept. of Workforce, et al. , an 8-page opinion, Sr. Judge Sharpnack writes:
The Review Board contends that the dismissal of Quakenbush’s appeal attempt is proper, even when the attempt was seemingly timely sent, if sent to the wrong fax number or address within the divisions of the Indiana Department of Workforce Development. Quakenbush submits documentation showing that he faxed a letter, to the attention of “Patricia” on November 15, 2007, to a different fax number than is listed on his determination notice. Quakenbush argues that Patricia told him which fax number to use, and that his appeal was timely filed. The Review Board argues that misinformation provided by a government employee should not be a basis for estoppel, especially in situations where the other party had access to the correct information. See Dennistarr Environmental, Inc. v. Indiana Dep’t. of Environmental Mgmt., 741 N.E.2d 1284, 1289-90 (Ind. Ct. App. 2001). * * *In Susana Henri v. Stephen Curto , a 21-page 2-1 decision with 3 opinions, Judge Riley writes:The statute [IC 22-4-17-3] provides in relevant part that an appeal be taken by the party adversely affected by the decision of the ALJ within fifteen days after the date of notification or mailing of such decision. That decision was mailed to Quakenbush on November 7, 2007, and he faxed his notice of appeal to the Indiana Department of Workforce Development on November 15, 2007. Quakenbush did all that was required of him by statute in order to timely initiate the appeal of the ALJ’s dismissal of his appeal. Submitting the notice of appeal to a particular subdivision of the entity known as the Indiana Department of Workforce Development is not a statutory requirement. * * *
The DWD may not take advantage of its size and compartmentalization to frustrate this appeal because it was sent to the “wrong” subdivision of the larger entity.
CONCLUSION We conclude that the Review Board erred by dismissing Quakenbush’s appeal of the ALJ’s dismissal of his appeal from the adverse decision regarding his eligibility for unemployment benefits. The fax sent to the Indiana Department of Workforce Development was sufficient to timely initiate an appeal. Reversed and remanded.
Appellant-Plaintiff, Susana Henri (Henri), appeals the trial court’s judgment in favor of Appellee-Defendant, Stephen Curto (Curto), finding that Curto did not rape her and awarding him $45,000 on his counterclaim. We reverse and remand for further proceedings.In Michael Carpenter v. Shawna Carpenter , a 25-page opinion, Judge Robb writes:Issues. Henri raises two issues for our review, one of which we find dispositive and which we restate as: Whether the trial court abused its discretion when it denied Henri’s motion to correct error. * * *
In sum, the trial court engaged in ex parte communications with the jury when it fielded the question from the jury without notifying the parties that the question had been submitted. See Rogers, 745 N.E.2d 995. Typically, we refuse to speculate as to how or why jurors come to their verdict. See, e.g., Newbill v. State, 884 N.E.2d 383, 392 (Ind. Ct. App. 2008). But, as here, where a party has submitted a sworn affidavit identifying ex parte communications and improper outside influences improperly brought to bear upon deliberating jurors, we must speculate to determine the effect of the influences on the fair determination of the evidence. The statement that was conveyed to the jury in response to its question misstated the law and likely affected the fair determination of the evidence by misinforming the jurors about their ability to abide by their conscientiously held opinions and their ability to prevent a verdict that they disagree with. Further, the outside influences likely compounded the error created by the ex parte communication. Therefore, we conclude that the presumption of error from the ex parte communication has not been rebutted, and the trial court abused its discretion by denying Henri’s motion to correct error. * * *
Reversed and remanded for further proceedings.
ROBB, J., concurs with separate opinion. [which begins] I concur fully in the majority opinion, but write separately to address certain points made by the dissent. * * *
BAKER, C.J., dissents with separate opinion. [which concludes] And while I acknowledge that if, in fact, the bailiff informed the jurors that they had to reach a unanimous verdict, the situation was not ideal, I simply do not find it sufficient to take the radical act of reversing a jury verdict and remanding for a new trial. For all of the reasons stated herein, I disagree with the majority’s resolution of this issue and would proceed to address the other arguments made by Henri on appeal.
Michael Carpenter (“Father”) appeals from the trial court’s order on his petitions for modification of child custody and child support; and for emancipation of child and for child support. Father raises four issues, which we restate as: 1) whether the trial court’s finding that Father’s son, B.C., was only partially capable of supporting himself was clearly erroneous; 2) whether the trial court improperly declined to order that Father be reimbursed for overpayment of a child support arrearage; 3) whether the trial court improperly modified the initial decree by allowing his former wife to claim two tax exemptions previously used by him; and 4) whether the trial court improperly determined the amount of weekly child support owed by Father. Concluding the evidence does not support the trial court’s finding that B.C. is only partially capable of supporting himself, we reverse and remand. We also conclude that the trial court’s findings do not support the re-assignment of the tax exemptions, and instruct the trial court to reconsider its determination after addressing the factors set out in the Child Support Guidelines. Finally, we direct the trial court to make findings of fact regarding Father’s overpayment, and to issue new findings regarding this issue. Because we are remanding for a new order, we need not address the fourth issue.In Thomas E. Caraway v. State of Indiana , a 13-page opinion, Judge Riley writes:
Caraway raises one issue on appeal, which we restate as: Whether the trial court erred in denying his motion to suppress when Caraway was not advised of his right to counsel prior to signing an Agreement to Take Polygraph and Stipulation of Admissibility (stipulation agreement). * * *In A.M. v. State of Indiana , a 7-page opinion, Judge Mathias writes:In sum, we conclude that Caraway’s right to counsel attached immediately prior to Detective Herr’s request to sign the stipulation agreement. Caraway had to stand alone against the State, and make a decision that may damage his defense at trial. At that critical stage, the absence of Caraway’s right to an attorney derogated his right to a fair trial. Furthermore, as Caraway was never informed of his right to counsel prior to stipulating the results of a polograph examination, he could not have waived it. Accordingly, we conclude that the trial court improperly denied Caraway’s motion to suppress. * * *
Reversed and remanded.
BAKER, C.J., concurs.
ROBB, J., concurs in result with separate opinion. [which concludes] The timing of the advice of rights is an important distinction between Kochersperger and this case. On the basis that Caraway was not advised of and did not waive his right to counsel before signing the stipulation, rather than on the basis of the Sixth Amendment, I agree that the trial court should have granted Caraway’s motion to suppress, and I therefore concur in result.
A.M. was adjudicated a delinquent child in Marion Superior Court for carrying a handgun without a license, a Class A misdemeanor if committed by an adult. A.M. appeals and argues that the juvenile court abused its discretion when it admitted the handgun into evidence. Concluding that the handgun was properly admitted because the pat-down search which led to its discovery was not conducted in violation of the Fourth Amendment and Article I, Section 11 of the Indiana Constitution, we affirm.In Yankee Park Homeowners Association, Inc. v. LaGrange County Sewer District, an 11-page opinion, Judge Brown writes:
Yankee Park Homeowners’ Association, Inc. (“Yankee Park”), appeals the trial court’s declaratory judgment in favor of the LaGrange County Sewer District (“District”). Yankee Park raises four issues, which we consolidate and restate as whether the trial court erred by finding that the District’s actions in defining the terms “mobile home” and “mobile home court” and classifying Yankee Park as a mobile home court rather than a campground were not arbitrary and capricious. We affirm. * * *NFP civil opinions today (2):As in Bass Lake, the statutes and regulations governing the Indiana Department of Health may define mobile home community and campground differently than the District’s ordinance, but those definitions are not binding upon the District. The statutes governing the District do not define mobile home community or campground, and the District’s decision to classify properties containing mobile homes as mobile home courts rather than campgrounds regardless of the seasonal usage is rational. The District’s basis for distinguishing between mobile home courts and campgrounds was not arbitrary or capricious. Moreover, the District’s classification of Yankee Park as a mobile home court rather than a campground based upon the change was not arbitrary or capricious.
Term. of Parent-Child Rel. of L.B., and David L. v. Lake County Dept. of Child Services (NFP) - "We conclude that Father was not denied his constitutional right to due process when the juvenile court did not appoint counsel to represent him during the CHINS and termination proceedings. Further, the LCDCS established by clear and convincing evidence the requisite statutory elements to support the involuntary termination of Father’s parental rights to L.B. Affirmed."
Walsh & Kelly, Inc. v. International Contractors, Inc., Signature Properties, Inc., et al (NFP) - "Whether the trial court erred in granting Partial Summary Judgment to Developer, when Subcontractor has sought a mechanic’s lien against Developer’s property although Developer has already fully paid the general contractor for the work provided by Subcontractor. * * *
"We conclude that the trial court did not err in granting Partial Summary Judgment to Developer because the mechanic’s lien is invalid and unenforceable. Affirmed."
NFP criminal opinions today (12):
Marcus Brabson v. State of Indiana (NFP)
Jonathan Brewster v. State of Indiana (NFP)
Kenneth Faust v. State of Indiana (NFP)
Amanda Johnson v. State of Indiana (NFP)
Randall Winbush, Jr. v. State of Indiana (NFP)
Charles E. Perkins v. State of Indiana (NFP)
David M. Bolan v. State of Indiana (NFP)
Timothy Williams v. State of Indiana (NFP)
Michael Massie v. State of Indiana (NFP)
G.I.P., a Minor v. State of Indiana (NFP)
Terry Verhoeven v. State of Indiana (NFP)
Michael R. Bryant v. State of Indiana (NFP)
Posted by Marcia Oddi on July 31, 2008 11:54 AM
Posted to Ind. App.Ct. Decisions
Courts - "Filing for Bankruptcy Becomes More Costly"
Jacquelllline Palank of the WSJ reports today:
Individuals who have filed for bankruptcy protection since Congress overhauled U.S. bankruptcy laws in 2005 have faced a more expensive process as attorneys' fees have risen by roughly half, according to a government report.Here is a link to the 53-page June 2008 report.In a report issued Monday, the U.S. Government Accountability Office said attorneys' fees for individuals who file for Chapter 7 bankruptcy-court protection increased by 51% since the Bankruptcy Abuse Prevention and Consumer Protection Act took effect in October 2005.
The report attributes the increase to the heavier load of legal work that is necessary to meet the law's requirements, which experts say has created a significant hurdle for financially strapped individuals.
"We've imposed enormous costs on the system which, among other things, have been a real barrier to people filing for bankruptcy because it's so expensive," said Henry Sommer, president of the National Association of Consumer Bankruptcy Attorneys.
According to the report, the average lawyer's fee for a Chapter 7 bankruptcy case -- in which an individual's assets are liquidated and debts are discharged -- climbed to $1,078 in February and March of 2007, compared with $712 for the same period in 2005.
For Chapter 13 bankruptcies, which allow individuals to develop creditor-repayment plans, the median attorney's fee rose to $3,000 in February 2008 from $2,000 just before the law was passed.
Not only do individuals face higher attorneys' fees, but the accountability office also said that the fees to file for bankruptcy rose by $90, to $299, for Chapter 7 filers and by $80, to $274, for Chapter 13 filers.
Posted by Marcia Oddi on July 31, 2008 11:07 AM
Posted to Courts in general
Law - "Workers' Religious Freedom vs. Patients' Rights"
Rob Stein of the Washington Post has a lengthy story today that begins:
A Bush administration proposal aimed at protecting health-care workers who object to abortion, and to birth-control methods they consider tantamount to abortion, has escalated a bitter debate over the balance between religious freedom and patients' rights.The Department of Health and Human Services is reviewing a draft regulation that would deny federal funding to any hospital, clinic, health plan or other entity that does not accommodate employees who want to opt out of participating in care that runs counter to their personal convictions, including providing birth-control pills, IUDs and the Plan B emergency contraceptive.
Conservative groups, abortion opponents and some members of Congress are welcoming the initiative as necessary to safeguard doctors, nurses and other health workers who, they say, are increasingly facing discrimination because of their beliefs or are being coerced into delivering services they find repugnant.
But the draft proposal has sparked intense criticism by family planning advocates, women's health activists, and members of Congress who say the regulation would create overwhelming obstacles for women seeking abortions and birth control.
There is also deep concern that the rule could have far-reaching, but less obvious, implications. Because of its wide scope and because it would -- apparently for the first time -- define abortion in a federal regulation as anything that affects a fertilized egg, the regulation could raise questions about a broad spectrum of scientific research and care, critics say.
Posted by Marcia Oddi on July 31, 2008 09:45 AM
Posted to General Law Related
Ind. Law - Looking back through the ILB archives
From the Indiana Law Blog archives, one year ago July 25th-31st:
- Courts - New Albany, adult store still await ruling (July 29, 2007). Update: Another year has now passed and New Albany DVD (05-1286) still awaits a ruling. Oral argument was 9/26/05.
- Ind. Courts - Judge Felts Named President of Indiana Judges Association (July 26, 2007)
- Ind. Courts - Governor appoints Lake and Marion Superior Court judges (July 26, 2007). "Calvin Hawkins will serve as judge of the Lake County Superior Court replacing Judge Robert A. Pete who died on March 6. David Certo will fill the vacancy on the Marion County Superior Court created by the governor’s appointment of Judge Cale Bradford to the Indiana Court of Appeals last month."
- Law - "Law-related blogging starting to see a coming of age" -- But can a law blogger ever be considered a "journalist"? (July 31 2006)
- Ind. Courts - "Ind. Courts - Judge unseals records in French Lick casino dispute today" (July 31, 2006)
- Ind. Courts - Commission on Judicial Qualifications has filed judicial disciplinary charges against Judge Thomas Newman, Jr., Madison Superior Court #3. (July 30, 2006) Update: Judge Newman was censured Dec. 19, 2006
- "Ind. Gov.t. - Attorney general Carter appoints state's first solicitor general" (July 29, 2005)
- Indiana Courts - Federal Courts to Have Online Filing (July 25, 2004)
- Indiana Decisions - Wilkins appeals disciplinary decision to U.S. Supreme Court (July 27, 2003)
Posted by Marcia Oddi on July 31, 2008 08:51 AM
Posted to Indiana Law
Wednesday, July 30, 2008
Ind. Decisions - Recent COA NFP custody decision receives some attention
The July 24th Court of Appeals opinion in the case of Diana E. Lowhorn v. Brian E. Lowhorn (NFP) [See ILB summary here, 7th case], was the focus of an entry this evening by law prof. Eugene Volokh. Mr. Volokh, as profs are prone to do, poses a hypothetical:
Say we have two parents vying for custody. The children don't like associating with the transgendered people, lesbians, uncool people, disfigured people, fundamentalist Christians, Wiccans, blacks, or whites whom one parent invites over for dinner. (It may well be that the legal rules should be different for the different categories -- or maybe not.) The other parent offers an environment that the children seem to like more. Assume there's no serious threat to the children from the associates, nor any evidence of outright psychological damage stemming form the children's embarrassment -- just the sort of unease that people sometimes have, rightly or wrongly, from being around certain kinds of people. Should a court consider this? Under what circumstances? What role should the child's age play?The entry caused me to reread the NFP decision to reverse and remand. Here are some quotes from the 18-page opinion, written by Judge Brown:
Mother has had a platonic friendship with Galen for several years. Father described Galen as “a super nice guy.” In August 2005, Father learned that Galen had transgendered from male to female. Father also learned that Mother had taken the children to the Jesus Metropolitan Community Church (“JMCC”), a church open to gay, lesbian, bisexual, and transgender people.On January 6, 2006, Father filed a petition to modify custody, in which he requested sole legal and primary physical custody of the children. The trial court held a hearing on the petition on November 9, 2006, and conducted an in camera hearing with the children. On October 31, 2007, the trial court issued its findings of fact and conclusions of law. The trial court found that “[s]ince the entry of the Decree, there has been a substantial and continuing change of circumstances such that the Court’s prior Order pertaining to custody of said children and the parenting time arrangements is not in the children’s best interests.” Specifically, the trial court found that: (1) Mother had failed to provide Father with information regarding parent-teacher conferences, extracurricular activities, religious training, and medical issues; (2) Mother had forced the children to be seen publicly with her transgendered friend; (3) Mother had forced the children to attend church at JMCC with her; (4) Mother had failed to provide Father with the right of first refusal for additional parenting time; (5) both children had expressed a strong desire to live with Father; and (6) Mother was unwilling or unable to address the psychological and physical needs of the children. The trial court found that joint legal custody was “unworkable” and that Father should have sole legal and physical custody of the children with Mother having parenting time. * * *
After Father confronted Mother about Galen, Mother agreed that she would not “have the kids around. Galen.” For a few months, the children had no contact with Galen. Now, the only interaction between the children and Galen is when Galen comes to Mother’s house for dinner two or three times a month.
The trial court’s finding that “Mother continues to subject the children to being seen with the person in restaurants, in front of their friends, and at the children’s extracurricular activities” is clearly erroneous. Rather, the evidence demonstrates that, after the children’s concerns were brought to Mother’s attention, the children had interaction with Galen only a few times a month for a private dinner in their residence. There is no evidence that the children’s occasional interaction with Galen during private dinners is harmful, and the evidence is simply insufficient to demonstrate a substantial change to modify custody. See, e.g., Downey v. Muffley, 767 N.E.2d 1014, 1020 (Ind. Ct. App. 2002) (holding that no rational basis existed for custody order preventing the mother from living with her same-sex domestic partner where there was no evidence of an adverse effect upon the children based upon the mother’s sexual preference and relationship with same-sex partner); Johnson v. Nation, 615 N.E.2d 141, 146 (Ind. Ct. App. 1993) (holding that the trial court erred by modifying custody solely based upon changes in the father’s attitude toward and involvement in religious activities without evidence that the children’s physical health was being endangered or their emotional development was being significantly impaired); D.H. v. J.H., 418 N.E.2d 286, 293 (Ind. Ct. App. 1981) (holding that homosexuality of a parent, standing alone, without evidence of any adverse effect upon the welfare of the child does not render the homosexual parent unfit as a matter of law to have custody of the child).
Posted by Marcia Oddi on July 30, 2008 06:48 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Debra McVicker Lynch selected to replace retired Magistrate Judge V. Sue Shields
A release posted today by the Clerk of the USDC in Indianapolis announces:
The United States District Court for the Southern District of Indiana announced today the selection of Debra McVicker Lynch for the position of United States Magistrate Judge. This position became available due to the elevation of William T. Lawrence to an Article III judgeship, effective July 1, 2008. Magistrate judges preside over many pretrial proceedings in both civil and criminal cases in federal court. A critical part of the job is conducting mediation and settlement proceedings in civil cases, helping parties settle their disputes by agreement.A Magistrate Judge Merit Selection Committee chaired by retired Magistrate Judge V. Sue Shields reviewed more than 50 applications and recommended five candidates for the position. The District Judges of the court then selected Ms. Lynch from among those five candidates.
Posted by Marcia Oddi on July 30, 2008 05:08 PM
Posted to Indiana Courts
Ind. Courts - 7th Circuit's use of Wikipedia in Home Depot case cited as "troubling"
Law prof Eugene Volokh of the widely-read Volokh Conspiracy writes today about the 7th Circuit's decision July 28th in Rickher v. Home Depot, Inc. Some quotes from Volokh:
Courts have cited Wikipedia over 300 times, and many of those cites are in my view just fine when the citation is for a tangential and uncontroversial matter. But the Seventh Circuit's use of Wikipedia in Rickher v. Home Depot, Inc., handed down Monday, strikes me as troubling.The NY Times had a very good article Jan. 29, 2007 that the ILB quoted here. A quote from the article:The key issue as to one part of the plaintiff's lawsuit was the definition of "wear and tear." The plaintiff cited Webster's II New College Dictionary and Random House Webster's College Dictionary, which defined the term as “Depreciation, damage, or loss resulting from ordinary use or exposure” and “Damage or deterioration resulting from ordinary use; normal depreciation,” But the court disagreed [and cited Wikipedia]. * * *
If the judges wanted to argue based on their experience, based on logic, or based on contrary lexicographic authorities — including, for instance, the use of the phrase in other sources — that's fine, and they did that in some measure. But they cited Wikipedia as the lead authority supporting their conclusion, and as the source for their important and controversial definition; and this strikes me as troubling.
First, there does seem to me to be a serious risk of manipulation by the parties in this sort of situation. * * *
And, second, I don't see much reason to see why, even unmanipulated, Wikipedia should be a substantial authority here. We don't know who wrote the definition, so we can't rely on his knowledge. This doesn't seem likely to be the sort of definition that would attract a great deal of attention and review in case of error, so that we can rely on a possible "wisdom of crowds." Dictionaries and encyclopedias aren't perfect, and I know there are arguments that Wikipedia is on balance roughly as accurate as the Encyclopedia Britannica (as well as arguments in response). But it does seem to me that, at least until such rough equivalence of Wikipedia and other sources is further demonstrated, courts should rest their decisions about important and controverted matters on sources — such as dictionaries, technical dictionaries, or encyclopedia entries — that at least have some more indicia of likely expertise.
In a recent letter to The New York Law Journal, Kenneth H. Ryesky, a tax lawyer who teaches at Queens College and Yeshiva University, took exception to the practice, writing that “citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in turn use that judicial opinion as authority.”In the Jan. 29, 2007 entry I observed:
Citation to anything on the web is nothing more than a link to the location of a document on a server located somewhere in cyberspace. The document can be removed, the server can be taken down. That is one set of problems. They are addressed by sites such as WebCite.com, which describes itself as "an archiving system for webreferences (cited webpages and websites)." More from the site:.Interestingly, another prominent use by the 7th Circuit of Wikipedia references was in Judge Wood's dissent in the voter ID case, quoted in this April 5, 2007 ILB entry.Authors increasingly cite webpages in medical and scientific publications, which can "disappear" overnight. The problem of unstable webcitations has recently been recently referred to as an issue "calling for an immediate response" by publishers and authors.The other set of problems involves the fact that the document may be changed, with no indication, meaning that the citation now leads to something other than that which the judge or author intended, and who is to know? Or the document may indicate it has been corrected or revised, but give no clue to what it said before. These are problems, as the ILB has written before, inherent in the Indiana General Assembly's website, as it relates to the Indiana Code, the Acts of Indiana, and the Indiana Register
Posted by Marcia Oddi on July 30, 2008 01:38 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Two Indiana opinions today from 7th Circuit
In Parrott v. US (SD Ind., Judge Young), a 21-page opinion, Judge Wood writes:
The remand resulted in a grant of summary judgment against Parrott on both of his claims. In addition to challenging that ultimate decision on appeal, Parrott, who represented himself pro se throughout the district court proceedings, also argues that the district court erred when it denied various discovery motions. Parrott asserts that the district court’s handling of discovery provides an independent basis for reversal, particularly on the failure-to-protect claim. We agree with him, and we therefore remand the case to the district court once again for further discovery on the question whether BOP officials negligently failed to protect Parrott from Gregory’s assault.In Hall v. Forest River, Inc. (ND Ind., CJ Miller), an 18-page opinion, Judge Manion writes:
Shellee Hall sued her former employer, Forest River, Inc., for sex discrimination, constructive discharge, and retaliation, under Title VII. The district court granted Forest River summary judgment on the constructive discharge claim and, following the close of Hall’s case-in-chief, granted Forest River judgment as a matter of law on the retaliation claim. The sex discrimination claim was submitted to a jury, which returned a verdict in favor of Forest River. Hall appeals, challenging only the district court’s decision granting Forest River judgment as a matter of law on her retaliation claim. We affirm. * * *In order to avoid judgment as a matter of law, Hall needed to present sufficient evidence of causation to support a jury’s verdict of retaliation. Hall failed to do so, however, pointing instead to evidence irrelevant to the issue of causation or insufficient as a matter of law to support a jury verdict in light of the undisputed evidence that Forest River believed another candidate was better qualified for a promotion. For these and the foregoing reasons, we AFFIRM.
Posted by Marcia Oddi on July 30, 2008 12:47 PM
Posted to Ind. (7th Cir.) Decisions
Courts - "Sizing Up the 2007-08 Supreme Court Term"
Legal Times' seventh annual Supreme Court review, with print and audio versions, available here.
Posted by Marcia Oddi on July 30, 2008 12:44 PM
Posted to Courts in general
Law - "Conflicting Gay Marriage Laws Cause Headaches for Companies"
Some quotes from an article by Sherry Karabin in Corporate Counsel:
California wasn't the first state to legalize same-sex marriage; Massachusetts did so four years ago. (Six countries, including Canada, also allow gay and lesbian couples to marry.) But ever since Congress passed the Defense of Marriage Act (DOMA) in 1996, only opposite-sex marriages are recognized under U.S. federal law.As a result, companies have to follow two sets of rules, says Maureen O'Neill, an employment law partner at Paul, Hastings, Janofsky & Walker. "For example, a same-sex spouse may be entitled to health insurance coverage under the company's insurance plan if the policy is governed by California law, but the provision of such benefits will be taxable for purposes of federal income tax," says O'Neill.
Same-sex spouses also can't file a joint federal income tax return, aren't eligible to receive each other's Social Security death benefits, and can't roll over a 401(k) plan to the other spouse without income tax consequences. As PG&E's Campos notes, "Employers have no choice but to treat same-sex couples differently in terms of taxation."
Posted by Marcia Oddi on July 30, 2008 12:41 PM
Posted to General Law Related
Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)
For publication opinions today (2):
In Tony Billings v. Kendra Odle , an 8-page opinion, Judge Bradford writes:
Appellant-Respondent Tony Billings appeals following the trial court’s order finding him in arrears of his child support obligation. On appeal, Billings claims that he was entitled to credit for child support paid while exercising physical custody over Daughter and that the termination of his obligation to pay a portion of Daughter’s post-secondary education expenses should be applied retroactively to the last date which Daughter was enrolled at a post-secondary institution. Concluding that Billings was entitled to credit for child support paid while exercising physical control over Daughter and that Billings should only be obligated to pay Daughter’s educational expenses for the period of time in which she was actually enrolled at a post-secondary institution, we reverse and remand to the trial court for further proceedings not inconsistent with this opinion.In Terry Baxter v. State of Indiana , a 20-page opinion, Judge Barnes concludes:
The statutes making failure to properly dispose of a dead animal a Class D felony are constitutional. Allowing Animal Control to retain possession of the nine horses while this case was pending complied with Indiana Code Section 35-46-3-6. The search of Baxter’s property and the seizure of the nine horses did not violate the Indiana Constitution. Finally, there is sufficient evidence to support eight of Baxter’s convictions for Class B misdemeanor animal neglect, but insufficient evidence to support four of those convictions. We affirm the four Class D felony convictions and eight of the Class B misdemeanor convictions and reverse four of the Class B misdemeanor convictions.NFP civil opinions today (3):
In Re the Adoption of R.W.L.; Rusty L. v. James and Susan M. (NFP) - "In consideration of the facts most favorable to the judgment, the trial court did not clearly err in granting James and Susan’s Petition for Adoption of J.R.M."
American Contracting & Service, Inc. v. City of Jeffersonville, Indiana; et al. (NFP) - "Having concluded that the trial court did not err in denying American summary judgment and having interpreted the contract’s terms to provide that American was entitled to no additional compensation for costs relating to the excavation and replacement of problem soil, we affirm the trial court’s judgment in favor of American in the amount of $1045."
In Re the Matter of Y.O., D.N. & C.o.; and S.N. v. Marion Co. Dept. of Child Svcs. (NFP) - "Seneca N. (“Mother”) appeals from the juvenile court’s determination that her minor children, Y.O., D.N., and C.O., are Children in Need of Services (“CHINS”). Specifically, she contends that her children’s out-of-court statements were not supported by sufficient indications of reliability and that the trial court violated her rights under the Indiana and United States Constitutions by holding the child hearsay hearing and CHINS fact-finding hearing close in time on the same day. Concluding that the trial court did not abuse its discretion in finding that her children’s out-of-court statements were supported by sufficient indications of reliability and that she invited any error relating to the hearing procedure, we affirm."
NFP criminal opinions today (9):
Alfrederick Williams v. State of Indiana (NFP)
Billy J. Oeth v. State of Indiana (NFP)
In re E.T. v. State of Indiana (NFP)
Robert Lyons, Jr. v. State of Indiana (NFP)
Douglas R. Martin v. State of Indiana (NFP)
Charles Sharpe v. State of Indiana (NFP)
James Phillips v. State of Indiana (NFP)
Robert E. Payton, Jr. v. State of Indiana (NFP)
Shane Hillebrand v. State of Indiana (NFP)
Posted by Marcia Oddi on July 30, 2008 11:36 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Two new stories today on the Delaware County drug forfeiture investigation
The most recent ILB entry on the drug forfeiture investigation in Delaware County was July 24. Today Rick Yencer of the Muncie Star-Press has two new stories.
"Oversight over DTF seizure, forfeiture already in place" is the headline to this story, that begins:
Some new rules governing the seizure and forfeiture of money and property from criminal defendants already are in effect as local judges prepare to adopt new checks and balances.A second story, headlined "McKinney can't withdraw from DTF forfeiture cases," begins:Seized money and assets from alleged drug dealers are no longer held in the Muncie-Delaware County Drug Task Force safe on Kilgore Avenue, according to Muncie Police Capt. Mark Vollmar, who supervises the city police investigations unit.
And Delaware County Prosecutor Mark McKinney told Delaware Circuit Court 2 Judge Richard Dailey Tuesday that deputy prosecutors were no longer handling drug forfeiture cases.
McKinney told The Star Press that Dailey's investigation had effectively killed asset forfeiture from criminal defendants. He told the judge it had been difficult to find any attorney to take over the civil cases given the court's investigation that found evidence that property and money was seized and spent by the DTF without court orders. Then-deputy prosecutor McKinney made well over $100,000 during the last decade representing the DTF in those cases.
Dailey again met with local legal, financial and law enforcement officials to finalize new rules before local judges consider them next month.
Among the biggest oversight in the new rules is one that Delaware Circuit Court 4 Judge John Feick imposed after finding the DTF was putting seized money into its own checking account without a court order.
All drug forfeitures must be adjudicated according to state law, and adjudication of the civil forfeiture should not commence until the criminal case is disposed.
Delaware County Prosecutor Mark McKinney's effort to withdraw from dozens of cases where he represented the Muncie-Delaware County Drug Task Force on civil forfeiture was denied Tuesday.
AdvertisementMcKinney, represented by Indianapolis attorney Kevin McGoff, said it was no longer appropriate for him to represent the DTF in cases Delaware Circuit Court 2 Judge Richard Dailey planned to review in an ongoing investigation into whether the DTF took money in violation of state law.
McKinney wrote in his motion that his relationship with the DTF was nonexistent, given the city filed a disciplinary complaint against him and also sought a special prosecutor to investigate whether a crime or conflict of interest exists.
Besides that, he said, full-time prosecutors cannot maintain a private law practice.
There's been no action by the Indiana Supreme Court's disciplinary commission on the complaint or by Special Judge Michael Peyton of Henry County on the special prosecutor request.
Posted by Marcia Oddi on July 30, 2008 09:56 AM
Posted to Indiana Courts
Ind. Decisions - "Wrongful conviction case hits new snag"
This Jan. 16, 2008 ILB entry quotes from an Indianapolis Star story that mentions, at the end of a long story about another individual:
Buntin said he hasn’t decided whether to file a federal lawsuit seeking compensation for a wrongful conviction. Larry Mayes, who spent 19 years in prison for a rape in Hammond before DNA evidence exonerated him, was awarded $9 million by a jury in 2006; that verdict is on appeal.In this March 11 entry Sara Brown reported in the NWI Times that:
HAMMOND | Five months after the city of Hammond asked a federal appeals court to overturn a $9 million judgment in the wrongful conviction lawsuit won by Larry Mayes, attorneys are expected to file a motion today asking the court not to rule in the case.Today Joe Carlson reports in the Times under the headline "Wrongful conviction case hits new snag" in a story that begins:
HAMMOND | City officials want to pay $4.5 million to settle with a man they wrongfully imprisoned for 20 years, and the man wants to accept.Here is a copy of the 9-page July 29th opinion and order from the ND Ind., Hammond Div. that begins:But federal judges are standing in the way, at least for now.
In 2006, Larry Mayes won a lawsuit he filed against the Hammond Police Department, which manipulated evidence to send Mayes to prison for a 1980 rape that modern DNA evidence now proves he did not commit.
Police officials admitted at trial that a detective on the case had used hypnotism on the victim of the attack to try to produce memories of her assailant, despite department policy against the unorthodox technique.
A federal jury awarded Mayes $9 million.
While the verdict was out on appeal, city officials and Mayes' attorneys agreed to settle the case out of court for $4.5 million -- but only if city officials floated a bond for the settlement and if federal judges agreed to invalidate the $9 million judgment.
The Hammond City Council approved the bond in April, but the 7th Circuit Court of Appeals has denied the request to throw out the jury award.
Many appeals courts across the country will automatically vacate an earlier court decision in order to promote settlements, but the Chicago-based 7th Circuit has refused, citing a concern about wasting judicial resources and other issues, U.S. Magistrate Judge Paul Cherry wrote.
"The parties do not have a settlement without the entry of an order vacating the jury verdict," Cherry wrote.
This matter is before the Court on an order from the United States Court of Appeals for the Seventh Circuit [DE 546], issued on July 15, 2008, and filed with this Court on July 17, 2008. The Court of Appeals has remanded this case for the limited purpose of allowing the Court to inform the Court of Appeals whether it is inclined to vacate the judgment and jury verdict.It ends with:
Based on the foregoing, the Court now ORDERS the parties to FILE a joint brief, on or before August 8, 2008, setting forth the law and facts, as requested in Part B of the Analysis, necessary for the Court to inform the Court of Appeals whether the Court is inclined to vacate the jury verdict and judgment in this case as a condition of settlement. Upon receipt of the brief, the Court will expeditiously issue an order in response to the Court of Appeals’ inquiry.
Posted by Marcia Oddi on July 30, 2008 06:53 AM
Posted to Ind Fed D.Ct. Decisions
Tuesday, July 29, 2008
Ind. Courts - "Courthouse Girls" movie to air soon on your local PBS station
So reports Bill Richmond of the Winchester News-Gazette. Some quotes:
A documentary on the Courthouse Girls calendar saga will make its network television debut Thursday evening on PBS channel WIPB. Courthouse Girls of Farmland airs July 31 at 9 p.m. on WIPB. * * *"The calendar is only one part of this story," said co-executive producer Angela Soper. "The bigger issue is what's happening to small towns all across America, especially those with history to be preserved in the form of their buildings, their culture and the lives of their citizens.
"It's also a story about the value offered society by those who are older."
She said the film is not only about those who worked to save the courthouse. The team of filmmakers made a point to talk to people who were against saving it and express a differing point of view.
"We really wanted to get other people's opinions as much as possible," she said.
Soper said the Muncie PBS broadcast will be the first time the program has been widely available to the public. It was previously seen only in showings to private groups and at film festivals. * * *
WIPB General Manager Alice Cheney said Courthouse Girls of Farmland is an excellent documentary on the revitalization of a small community.
"We are thrilled to have been a part of the production," Cheney said.
WIPB Marketing Manager Angela Rapp said, as the presenting station, WIPB has offered the Courthouse Girls documentary to all the Indiana Public Broadcasting Service (IPBS) stations. Those stations include: WNIT-TV South Bend/Elkhart, WFWA-TV Fort Wayne, WYIN-TV Merrillville, WFYI-TV Indianapolis, WVUT-TV Vincennes, WNIN-TV Evansville and WTIU-TV Bloomington. At this time all the stations have expressed an intent to air the program.
Posted by Marcia Oddi on July 29, 2008 09:26 PM
Posted to Indiana Courts
Ind. Law - Proposed Vincennes golf cart ordinance "driven to committee"
Updating this ILB entry from July 22, Jenny Peter of the Vincennes Sun Commercial reports today:
An ordinance that would regulate the use of golf carts on city streets went for the first time before the city council Monday night, and with little fanfare, was sent to a sub-committee for further review.Two men took the podium to speak about the ordinance, each with very different opinions.
Dode Hall, who lives along the 1400 block of Mentor Street, is against the proposed ordinance and said he would rather see golf carts - as well as motorbikes, mopeds and motorized wheelchairs - banned from the city's streets altogether. * * *
But Bob Dunn, who lives along 13th Street, buzzes all over town in his golf cart and says it's possible, even likely, that full-size vehicles and golf carts can share the city's streets amicably.
"So far, everyone has been very courteous," he told the council. * * *
The ordinance will now go before the city council's street and sanitation committee for further review. Typically, the ordinance would go before the public safety committee, but it is currently reviewing a proposed ordinance that would institute a city ambulance service.
City Councilman Don Kirk said the golf cart ordinance was given to the street and sanitation committee to "free up" the public safety committee. No announcement was made at the meeting as to when the street and sanitation committee would next meet.
Posted by Marcia Oddi on July 29, 2008 09:17 PM
Posted to Indiana Law
Ind. Courts - Attorneys' lounge now available in the Birch Bayh Federal Building and United States Courthouse (Indianapolis Division)
Here is the announcement.
Posted by Marcia Oddi on July 29, 2008 09:13 PM
Posted to Indiana Courts
Ind. Courts - More on: "Case in jeopardy because of typos"
Updating this ILB entry from July 19th, Kevin Lilly of the Logansport Pharos-Tribune reported on July 23rd, under the headline "Judge says typo didn’t harm case":
A judge ruled this week that multiple clerical mistakes did not prejudice the defendant’s rights in a sexual misconduct case.Cass Circuit Court Judge Leo Burns overruled a defense motion to dismiss the prosecution’s second amendment to a charge of sexual misconduct with a minor against 23-year-old Jesse Alan Philapy of Kokomo.
Philapy’s attorney, Randy Hainlen, argued that the prosecutor’s office missed the deadline to make changes to the charging information used to inform defendants of the charges they face.
In a hearing last week, Chief Deputy Prosecutor Lisa Swaim argued that the flaws were merely typographical errors. * * *
Since the original filing, the prosecution twice made modifications to the age-sensitive sexual misconduct charge.
In August, the prosecution changed the time frame to 2007, changed the last name of the victim and removed the date of birth. In May, the prosecution filed another amendment in an attempt to correct the time frame and change the victim’s age to 15. Hainlen objected to the second attempt to modify the language.
In his ruling, Burns considered the question, “Does the amended information prejudice the substantial rights of the defendant?”
Burns indicated that Philapy had been aware of the charges throughout the proceedings. He pointed out that the second amendment was made more than 90 days before trial and that the defendant had been notified of the alleged victim’s age at multiple hearings.
“The mistakes made by the state in the first two informations were obvious,” Burns wrote. “The fact that the state, whether through inadvertence or lack of attention to detail, unnecessarily complicated a charging information that should have been easy to present accurately in the first instance, has not prejudiced the defendant’s substantial right to be informed of the nature of the charge pending against him. Nor does it affect his ability to properly prepare a defense.”
Posted by Marcia Oddi on July 29, 2008 01:44 PM
Posted to Ind. Trial Ct. Decisions
Ind. Decisions - Court of Appeals issues 5 today (and 14 NFP)
For publication opinions today (5):
In Daniel J. Milliner v. State of Indiana , a 9-page, 2-1 opinion, Judge Bailey writes:
In this consolidated appeal, Daniel J. Milliner challenges his conviction for failure to register as a sex offender, as a Class D felony, and the order revoking his probation and reinstating his previously suspended sentence. We affirm. * * *In Liberty Mutual Insurance Co. v. Michigan Mutual Insurance Co. . a 12-page opinion, Judge Friedlander writes:Milliner concedes that he moved from the home he shared with his wife in late July, and he admits he did not re-register as a sex offender within seven days. But he points to his testimony that he lived with various relatives during the relevant period and claims he did not “change” his home address, as required by the statute but, rather, he “lost” it. Indeed, Milliner repeatedly describes himself as “homeless” during the relevant period.
Here, the evidence shows that Milliner made his home with others, not that he was homeless. Consistent with his argument at trial, Milliner now emphasizes that he did not live in one place for seven days or more. But we do not read the statute as having triggered the duty to re-register only after an offender lived seven consecutive days in a new location. * * *
Milliner also claims that the trial court abused its discretion when it ordered him to serve his previously suspended sentence. He asks that we revise his sentence based on the nature of the probation violations and upon his character. * * *
First, we note that the court had discretion to order execution of the entire sentence suspended at the time of initial sentencing. See Ind. Code § 35-38-2-3(g)(3). Additionally, Milliner committed multiple offenses in a reasonably short period of time, and he violated multiple terms of his probation. His actions show a lack of respect for the law and for the opportunities afforded him. The trial court’s decision is not clearly against the logic and effect of the facts and circumstances. The court acted within its broad discretion when it ordered Milliner to serve the one-year previously suspended sentence. Affirmed.
FRIEDLANDER, J., concurs.
KIRSCH, J., dissents with opinion. [which begins] When does a cardboard box under a bridge qualify as a “home address?” A park bench? What about a pile of rags next to a trash bin? Or a homeless shelter where one had a bowl of soup for lunch, but cannot return that night because there is no room?Homelessness is not a crime, but my colleagues make it so for anyone who is required to register under Ind. Code § 5-2-12-9 (repealed, see now Ind. Code § 11-8-8-17). While they resolve the evidentiary sufficiency issue in this case, they raise the specter of due process concerns in countless others.
Liberty Mutual Insurance Company (Liberty Mutual), as subrogee of Duke Realty Corporation d/b/a Duke-Weeks Realty Services (Duke), appeals the grant of summary judgment in favor of Michigan Mutual Insurance Company (Michigan Mutual) in a declaratory judgment action regarding Michigan Mutual’s duty to defend and indemnify Duke under a commercial general liability policy issued by Michigan Mutual to Trilithic, Inc. (Trilithic), a tenant of Duke. Liberty Mutual contends that summary judgment should have been granted in its favor because the liability in question arose out of Trilithic’s use of the leased premises and Duke was, therefore, covered under the policy as an additional insured. * * *In Conway Jefferson v. State of Indiana , a 16-page opinion, Judge Brown writes:There is no allegation that the ice and snow on which Swann slipped originated on the leased premises, was caused by the leased premises, was connected to work done on the leased premises, or had any other significant connection with the leased premises. Rather, the accident in question clearly arose out of Duke’s own failure to maintain the pathway from the parking lot to the employee entrance. The only way Swann’s fall was even remotely related to the leased premises was due to the fact Swann was on her way to work. We deem this “isolated connection” insufficient to bring the accident within the coverage of the policy under the additional insured endorsement. Therefore, Michigan Mutual had no duty to defend or indemnify Duke, and the trial court properly granted summary judgment in favor of Michigan Mutual. Judgment affirmed.
Conway Jefferson appeals his conviction for dealing cocaine as a class A felony.1 Jefferson raises three issues, which we revise and restate as: I. Whether the trial court abused its discretion by admitting the evidence obtained during the search; and II. Whether the trial court failed to permit Jefferson to present a defense. We affirm.In Chanelle Linet Alexander, et al. v. The Marion Co. Sheriff and The Commissioner of the Indiana Dept. of Admin., a 19-page opinion, Judge Friedlander writes:
1. Did the trial court err in determining that the Appellees had the authority to enter into contracts to provide telephone service to the Marion County jail and IDOC facilities that called for service providers to pay commissions in accordance with the respective contracts? 2. Did the trial court properly determine that the telephone rates charged by the phone companies to recipients of collect telephone calls from the Marion County jail and IDOC inmates are reasonable? We affirm.In Gary Community School Corp. v. Neal Boyd III and Theresa Stanback, a 10-page opinion, Judge Kirsch writes:In a nutshell, this case concerns the authority of the Sheriff and the IDOA to enter into contracts that provide for the Sheriff and the State to receive commissions from telephone service providers. * * *
Having reviewed the record, and even considering the affidavits stricken by the trial court, we conclude the Class failed to meet its burden of establishing that there is a genuine issue of fact with regard to the reasonableness of the rates charged. The Sheriff and the State, respectively, negotiated and entered into bi-lateral contracts with telephone service providers in which the service providers voluntarily agreed to pay commissions in accordance with contract terms. Based upon the undisputed, designated evidence, the challenged rates were reasonable. Judgment Affirmed.
Gary Community School Corporation (“GCSC”) appeals a jury verdict in favor of Neal Boyd III and Theresa Stanback (collectively “Parents”), as parents of Neal Boyd IV (“Neal”) on Parents’ claim of negligence against GCSC for the death of Neal, which occurred at Lew Wallace High School (“Lew Wallace”), a part of GCSC. GCSC raises several issues, of which we find the following dispositive: whether the trial court abused its discretion in admitting evidence of prior acts of violence that had occurred at or around Lew Wallace. In addition, because it will arise on remand, we address the following issue: whether the trial court erred in denying GCSC statutory immunity under the Indiana Tort Claims Act. We affirm in part, reverse in part, and remand for a new trial.NFP civil opinions today (3):
Samuel L. Paiz v. Trans-Corr, Inc., et al (NFP) - "Samuel Paiz appeals, pro se, the decision of the Worker’s Compensation Board (“the Board”) that denied his application for additional medical treatment for the injury he suffered November 14, 2003, in an accident in the course of his employment. We affirm."
Edna Taylor v. Brian Miller (NFP) - "Plaintiff-Appellant Edna Taylor, by her guardian and power of attorney Roy Taylor, appeals the denial of her motion to correct error following the trial court’s entry of judgment in favor of Defendant-Appellee Brian Miller. We affirm."
Peter and Marie Torres v. Solid Platforms, Inc., et al. (NFP) - "Peter and Maria Torres sued Solid Platforms, Inc. (SPI), L&H Company, Meade Electric Company, Inc. (Meade), and the Estate of William Bales (Bales) for personal injuries Peter received while working for his employer, BP Amoco. The Torreses appeal a grant of summary judgment in favor of the SPI, Meade, and Bales. The Torreses present five overlapping and interrelated issues for review. We condense and restate those issues as follows: 1. Did the trial court err in determining that no material issue of fact existed with respect to the placement of the tent in question? 2. Did the trial court’s determination in that regard prejudice the Torreses’ subsequent case against SPI and Bales on a separate theory?"
NFP criminal opinions today (11):
Charles Christian v. State of Indiana (NFP)
Andre Leroi McGhee v. State of Indiana (NFP)
Angel Merida v. State of Indiana (NFP)
Ronnie Drane v. State of Indiana (NFP)
Jerry White v. State of Indiana (NFP)
William H. Duvall III v. State of Indiana (NFP)
Keith Smith v. State of Indiana (NFP)
Ronald C. Stryjewski v. State of Indiana (NFP)
Lawrence Gregory-Bey v. State of Indiana (NFP)
Heather D. Hillebrand v. State of Indiana (NFP)
Brend D. Mullis v. State of Indiana (NFP)
Posted by Marcia Oddi on July 29, 2008 01:04 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "Both sides claim free speech rights in battle over sex shop"
The ILB has had at least a dozen entries on Spencer County's court battles to restrict an adult business, 231 Adult Plaza.
Today Francesca Jarosz of the Indianapolis Star reports on efforts by 24-hour per day protesters in Jackson County, against the Lion's Den, an adult superstore in Uniontown. Some quotes from the lengthy story:
The idea: to potentially embarrass anyone who walks into the Lion's Den, an adult sex shop off I-65 in this rural Jackson County town 80 miles south of Indianapolis.Their ultimate aim, though, is to shut the store down.
It is a conflict that has dragged on for nearly three years, pitting residents of this sparsely populated farming area against the Ohio-based corporate owners of a chain of about 30 Lion's Dens. * * *
Like other such fights, zoning laws are part of the equation. But an even bigger legal issue is present: the First Amendment rights that both sides claim as their own.
While the lawyers fight it out, the more visible battle is being waged a stone's throw from the interstate exit. Every hour of every day since the Lion's Den -- a 24-hour, seven-day-a-week business -- opened here in August 2005, Gillaspy, Howard or someone else in their group of Christian activists and others has maintained the parking lot vigil.
Their organization, called Jackson County Watchdog, has set up on an abutting plot of county-owned land where its wooden shed -- with its towering cross -- provides members shelter and where signs offer free Bibles and warn drivers that they enter the store at the risk of being exposed online at www.war-line.org. * * *
Late last month, the fed-up owners of the Lion's Den filed a lawsuit against Jackson County and some of its officials. In the suit, the owners note that the shed set up by the protesters on county land was erected without a permit, and yet the county refuses to do anything about it.
And that, they contend, is a clear indication that the county is showing favoritism to the protesters -- in violation of the Lion's Den's constitutional rights.
The store further claims the protesters' actions have cost it $300,000 in lost business over a six-month period. The next step is for the county to formally respond to the suit, which should happen within six weeks.
The suit creates a free-speech riddle that more than one First Amendment expert said would make a challenging law-school exam question:
Does the privilege lie with the store owners, who say the county should protect the Lion's Den's right to do business without subjecting its customers to the harassment posed by the protesters, or with its opponents, who say the county should protect their right to protest?
"The First Amendment seems to cut both ways here," said Neil Richards, a law professor who specializes in privacy and First Amendment issues at Washington University in St. Louis. "The business has a pretty good claim they're being discriminated against because the county doesn't like their message. On the other hand, one of the great red flags is the use of . . . laws (like the zoning ordinances) to punish people because they don't like their message."
Posted by Marcia Oddi on July 29, 2008 08:50 AM
Posted to Indiana Courts
