The Indiana Law Blog

Thursday, September 04, 2008

Environment - More on: John Graham to lead IU SPEA

Updating this ILB entry from April 17, 2008, which quoted the IU announcement of Graham's appointment to head SPEA, the Bloomington Herald-Time's reporter, Nicole Brooks, has this interview ($$) today. Some quotes:

John Graham comes to Indiana University’s School of Public and Environmental Affairs from years in public policy both in educational settings and in the White House, where he served in the Office of Management and Budget from 2001 to 2006.

Graham, SPEA’s fourth dean in the school’s 33-year history, began his duties July 28. He sat down last week to answer questions about his background and his priorities and hopes for the school. * * *

From 1990 to 2001 Graham led the Harvard Center for Risk Analysis, which he also founded. His work at the center led him to testify before both the Senate and the House, where he promoted a greater role for benefit-cost analysis in regulatory policy. * * *

Graham’s job with the OMB was to oversee all federal regulatory agencies, including the Food and Drug Administration, the Labor Department, Homeland Security and the Environmental Protection Agency. His staff of about 50 analysts were graduates of schools like SPEA, and one was in fact a SPEA alum.

Graham first met Daniels when he interviewed for the OMB job, then worked for him two and a half years.

“He taught me an enormous amount about how government works, and how to get things done in a difficult political environment. And then he was generous enough, actually, when I was appointed to the (SPEA dean) position, to have me come in to his office, and we had a good little conversation about how there’s a need in this state for university-based operations like SPEA to devote some of their attention not simply to the global challenges of the world or the national issues, but concrete problems like how should municipal governments and local governments in the state of Indiana be organized? How can they be more efficient?”

Graham said. “I think that his view, and certainly would be my view, is that there’s a much greater degree of opportunity to make a difference on these types of issues. In a way, it’s Indiana University giving back to the state and to the taxpayers what they’ve invested in Indiana University. So it’s not only an opportunity. To some extent, it’s an obligation.”

This obligation will turn into an interesting challenge in a few years, Graham said, when the bulk of SPEA’s faculty will be eligible for retirement.

“The most fascinating thing is, if you look at the profile of the faculty here, there was a surge of hiring from 1975 to 1985,” he said. “And that bulge is nearing the retirement years. So there’s going to be an opportunity to recruit and reshape a whole new generation of faculty at this school. That to me was an enormous opportunity.” * * *

“I think of these kinds of schools, (they) are problem-solving schools,” he said. “So, from my perspective, you look in society, you look in the world, you say ‘what are the big problems?’ And then you try to figure out, how can you position a school like this to help society address these issues,” he said. “In my opinion, the two biggies that we’re facing are the energy and environment challenge, and health care. A lot of what’s in that document is either explicitly or indirectly aimed at positioning the school and its graduates and its research programs to play a role in those two issues.”

Posted by Marcia Oddi on September 4, 2008 01:18 PM
Posted to Environment

Courts - In question of first impression in the circuits, 8th Circuit holds "Attorneys who provide bankruptcy assistance to assisted persons are debt relief agencies under the Bankruptcy Code"

In Milavetz, Gallop & Milavetz, P.A. v. U.S., a 24-page opinion, the Court of Appeals for the 8th Circuit holds on p. 18:

In sum, attorneys who provide bankruptcy assistance to assisted persons are debt relief agencies under the Bankruptcy Code, and § 526(a)(4) is unconstitutional as applied to these attorneys, but §§ 528(a)(4) and (b)(2) are constitutional. Accordingly, we affirm in part and reverse in part.

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In James T. Ferguson, et al. v. Charles D. Chandler, et al. (NFP), a 20-page opinion ("This appeal is the third time we have addressed this litigation."), Judge Robb concludes:

The trial court properly concluded Ferguson failed to prove damages resulting from the Candlers’ breach of fiduciary duty, was not entitled to relief on his claim for constructive fraud, and was not entitled to attorney fees under the Crime Victims Statute. However, the trial court improperly concluded Ferguson was not entitled to damages for destruction of the doors, and we remand with instructions that the trial court award Ferguson damages on that claim in the amount of $1,187.70. We also remand with instructions that the trial court enter findings and conclusions on 1) whether the Candlers complied with the trial court’s September 29, 2003, order and, if not, to determine Ferguson’s damages and 2) whether the Candlers are entitled to damages based on Ferguson’s breach of fiduciary duty, recognizing that such damages are time-barred before June 2, 2000. On remand, the trial court need not conduct a hearing if it so chooses. Affirmed in part, reversed in part, and remanded with instructions.

NFP criminal opinions today (3):

Fred G. Newell v. State of Indiana (NFP)

Joshua Copeland v. State of Indiana (NFP)

James Leroy Kilgore v. State of Indiana (NFP)

Posted by Marcia Oddi on September 4, 2008 12:49 PM
Posted to Ind. App.Ct. Decisions

Environment - "Court Tells EPA to Guarantee Kentucky Rules Do Not Allow Significant New Pollution in State’s Waterways"

From a NKY Sierra Club press release:

Louisville, KY – Today, the U.S. Court of Appeals for the Sixth Circuit issued its opinion in the case of Kentucky Waterways Alliance v. Johnson, reversing and remanding in part Environmental Protection Agency's approval of Kentucky's flawed antidegradation rules. The Kentucky antidegradation rules at issue are required by the federal Clean Water Act, and are intended to protect water quality of streams, rivers and lakes whose quality exceeds the minimum level necessary to support the Act’s “fishable” and “swimmable” goals. * * *

The Court agreed with Plaintiffs that the EPA had acted arbitrarily and capriciously in approving Kentucky's rules that allowed exceptions to the requirement of justifying a lowering of water quality of high quality waters.

The 24-page opinion found that EPA's approval of five of the six exceptions was "arbitrary and capricious" because EPA never required Kentucky to prove that the multiple exceptions contained in Kentucky's rules would cause only insignificant, or "de minimus," degradation of the state's rivers, lakes and streams.

“We’ve long believed that the numerous exemptions in Kentucky’s regulations could seriously degrade water quality. The court opinion makes it clear that the Clean Water Act requires antidegradation rules work to maintain water quality and EPA must look seriously at the individual and cumulative impact of the so-called “de minimis” exemptions prior to approving them,” said Judith Petersen, Executive Director of Kentucky Waterways Alliance

The Court also rejected EPA's approval of Kentucky's proposed antidegradation review for coal mining discharges. Despite the blanket exemption of coal mining discharges from antidegradation review by Kentucky, EPA approved the state rule based on a letter commitment by the state that it would interpret its regulation to require such reviews. The Court agreed with Plaintiffs that securing informal commitments from a state rather than requiring that its regulation be amended violates the Clean Water Act and abridges the right of the public to comment on proposed rules. * * *

Plaintiffs also objected to Kentucky's method for determining which waterways deserve antidegradation protection. The Court agreed that the state must protect all waters whose quality "exceed[s] levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water," but was not persuaded that Kentucky's specific procedures violated the law.

The Court's opinion sends Kentucky's rules back to U.S. EPA for further review. Kentucky will likely have to significantly revise and improve its rules in order to comply with the Court's opinion, and the result will be increased scrutiny of the use of public waters for waste disposal from industries, confined animal feedlot operations, cities, and under stormwater permits.

The LCJ has a story here.

Here is the 6th Circuit's 24-page opinion in the case of Kentucky Waterways Alliance v. Johnson

Posted by Marcia Oddi on September 4, 2008 08:50 AM
Posted to Environment

Ind. Law - More on: "Allen County bill may effectively limit abortion"

Updating this ILB entry from yesterday, Sept. 3, the Evansville Courier & Press today editorializes:

The abortion ordinance issue that erupted in Vanderburgh County last month is about to be tested in Fort Wayne, Ind., but with three significant differences.

Recall that the ordinance requiring doctors who perform abortions to have nearby hospital admitting privileges was passed by the Vanderburgh County Commissioners with practically no public notice.

That's one difference.

According to news reports from Fort Wayne, the public there knows that it is coming. * * *

The second difference goes to the scope of the ordinance.

The Vanderburgh County ordinance, passed unanimously, went right at abortion, requiring that a physician may not perform an abortion in Vanderburgh County unless he has admitting privileges at a hospital in Vanderburgh or an adjacent county.

Also, it requires that the physician notify the patient of the hospital's location, where the patient may receive follow-up care if complications occur. * * *

We wondered at the time, in an Aug. 21 editorial, that if the issue was truly patient safety — as the commissioners said — and not restricting abortions, then why did it not include other outpatient procedures performed in Vanderburgh County?

And, indeed, according to the Journal Gazette, the Allen County ordinance would require all surgeons and doctors who provide outpatient invasive procedures to have ties to a local hospital. It would apply to other medical procedures.

The third difference is between the two communities involved. In fact, Vanderburgh County has no abortion clinic, no place for visiting physicians to perform abortions. Hence, the Vanderburgh ordinance stands more as a bar against a clinic ever opening here.

On the other hand, Fort Wayne does have a clinic operated by the Fort Wayne Women's Health Organization. According to the story, abortions at the clinic are performed by a physician based in South Bend.

That means that if the ordinance is passed, it could put the future of the Fort Wayne clinic in doubt, and create a headache for physicians coming there to perform other procedures at outpatient clinics.

Also, it adds new meaning to big hospital monopolies if visiting physicians — whether they perform abortions or plastic surgery — must get the permission of hospitals to do procedures at medical clinics.

Posted by Marcia Oddi on September 4, 2008 08:39 AM
Posted to Indiana Law

Ind. Courts - "St. Joseph County prosecutor's budget targeted"

Nancy Sulok reports today in the South Bend Tribune:

County officials aimed their budget ax at the prosecutor's office Wednesday night, and there was no mincing of words. * * *

The occasion was the first of several planned sessions designed to trim between $5 million and $6 million from the 2009 county budget. A mandate to all departments to trim their budgets by 8 percent resulted in some savings, and county Auditor Peter Mullen said "we're halfway there.'' Additional cuts of around $2.6 million remain to be made, he said.

But the prosecutor's office was one that did not make the 8 percent cuts, either in the criminal division or the child support division. In the criminal division his 2009 budget cut only 3.9 percent, while in the child support division the cut was only 2.3 percent.

Posted by Marcia Oddi on September 4, 2008 08:35 AM
Posted to Indiana Courts

Ind. Law - "Police to go after unlicensed scooters"

Confusion continues. Today Amanda Iacone of the Fort Wayne Journal Gazette. reports on motor scooters. They require a a title, registration and license plate, according to the BMV, because: "Scooters are designed to go faster than 25 mph and therefore must have a license plate."

Unlike golf carts, which are designed to go less than 25 mph?

Posted by Marcia Oddi on September 4, 2008 08:27 AM
Posted to Indiana Law

Wednesday, September 03, 2008

Ind. Decisions - Two Indiana decisions today from the 7th Circuit, including one from Circuit Judge Tinder

In Wayne David v. Indiana State Police (SD Ind. Judge McKinney), a 7-page opinion, Chief Judge Easterbrook writes:

Wayne Davis, a State Trooper in Indiana, resigned when 42 years old to take another job. Two months later he decided that he had made a mistake and asked for his old job back. The State Police said no, telling Davis that he was too old—for extroopers seeking reinstatement must “meet all the requirements for police employees as specified in . . . 240 IAC 1-4-3”. 240 Ind. Admin. Code §1-4-18(b)(4). Among the requirements in §1-4-3 is that the applicant be at least 21, and under 40, when hired. Davis contends in this suit that, by holding his age against him, Indiana violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–33a. * * *
Davis does not contend that Indiana’s rules, which predate EEOC v. Wyoming, are “subterfuges” to evade the Act. Instead he contends that the decision not to rehire him is not one “pursuant to a bona fide hiring . . . plan”. His principal argument is that Indiana’s system is not “bona fide” because it is senseless; a fallback argument is that the decision not to rehire him, in particular, was not made “pursuant to” the state’s age limits. Indiana allows state troopers to work until age 65. Davis asks why a 2-month break in employment at age 42 should make him a pariah, when he would have been acceptable at age 43, 45, 50, 55, and 60 had he just stayed put. It is a good question, but not one for the federal judiciary. All §623(j)(2) requires is that the plan be “bona fide” and not a “subterfuge” to evade the ADEA. Whether a state’s plan is wise is not material to the application of §623(j)(2). A plan is “bona fide” when it is real rather than a fable spun for the occasion. Kopec, 193 F.3d at 901. * * *
When dismissing Davis’s complaint, the district court did not mention the requirement that the employer’s decision be “pursuant to” the plan; the judge asked only whether Indiana has a bona fide plan. Having a bona fide plan is not enough; that plan must be applied to yield the contested decision. * * *
Because this complaint was dismissed under Rule 12(b)(6), the record is silent on whether the state understands (and applies) 240 Ind. Admin. Code §1-4-18(b)(4) to permit exceptions to the maximum-age-at-rehire requirement. Davis is entitled to collect and present evidence on that question and to contend that, if the Indiana State Police sometimes rehires people at age 40 and above, the decision not to rehire him was not made “pursuant to” a bona fide plan.
The judgment of the district court is vacated, and the case is remanded for further proceedings consistent with this opinion.

In Dean Officer v. Chase Ins. (ND Ind., Judge Sharp), a 14-page opinion, Judge Tinder writes:

This case questions the validity under Indiana law of a suicide exclusion clause in a life insurance policy. Dean Officer (“Officer”), as the beneficiary of his wife’s life insurance policy, brought this suit against Chase Insurance Life & Annuity Company (“Chase”) to recover the face amount of the policy. The district court entered judgment in favor of Chase. We affirm. * * *
A. Insurance Contract Ambiguity. * * * Both parties agree that Indiana law applies here. Officer does not argue that Indiana law prohibits the exclusion of suicide under life insurance policies; Indiana has long permitted exclusions of this type. * * *
These two provisions are not in conflict, though. Chase could have used the same language in both provisions, but the fact that it used different language to express the amount of proceeds payable does not compel the conclusion that two otherwise unambiguous statements have become ambiguous.
B. Disproportionate Forfeiture. Officer argues that, if the exclusion is not ambiguous, then Indiana courts would find that it was a disproportionate forfeiture or an illegal penalty. He asserts that there is no rational relationship between the harm Chase suffered by the breach of the suicide clause and the $999,460 loss he will suffer by being repaid only the premiums. * * *
Chase is not seeking to escape its obligations under the policy; it tendered a check to Officer for the amount it owed. The suicide exclusion is not an unenforceable penalty and is subject to enforcement as expressed.
C. Substantial Performance. Officer also argues that the breach of the insurance contract was immaterial and the doctrine of substantial performance should prevent Chase from discharging its obligation to pay. He asserts that the suicide provision was 95% performed at the time of the breach and its purpose was effectuated because there was no evidence of fraud. * * *
Allowing Officer to recover would thwart the purpose of the exclusion. In any event, the doctrine of substantial performance is simply inapplicable here; an insured is not “performing” a life insurance contract by not committing suicide. We reiterate that “[i]f a plainly expressed exception, exclusion or limitation in an insurance policy is not contrary to public policy, it is entitled to construction and enforcement as expressed.” Boles, 481 N.E.2d at 1098 (emphasis added). Officer is entitled only to the amount of premiums paid.
D. Motion for Certification. Officer moved that we certify two questions to the Indiana Supreme Court pursuant to our Circuit Rule 52: whether the doctrines of illegal forfeiture and substantial performance apply to this insurance contract. * * *
We believe that the Indiana Supreme Court has “illuminate[d] a clear path,” Plastics Eng’g Co., 514 F.3d at 659, for us to confidently resolve Officer’s claim under Indiana law. As such, we decline to certify the questions. * * *
III. Conclusion. The district court properly concluded that the suicide limitation was valid and enforceable. We AFFIRM the district court’s judgment and DENY Officer’s motion for certification of questions to the Indiana Supreme Court.

Posted by Marcia Oddi on September 3, 2008 02:15 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Still more on: Indiana building codes, part of the Indiana Administrative Code, are not available online

Yesterday the ILB posted this entry about how a fellow named Carl Malamud was making available online the building codes for all 50 states, including the until-now-totally-unavailable International Building Codes which form about 95% of each state code. Mr. Malamud is one of the founders of Public.Resource.Org, a nonprofit group seeking to open public access to government records, according to a 2007 NYT article, which also reports:

His motivation is to make the workings of the government more accessible at no cost: “This is society’s operating system,” he said.

Well, come to find out that Mr. Malamud received an MBA from IU-Bloomington. While there he had some classes with two students who are now well known in Indiana circles, Indiana Insight publisher Ed Feigenbaum, and Indiana Attorney General Steve Carter, both of whom were pursuing joint JD/MBA degrees. In answer to my questions, Ed writes:

Steve and I started the JD part in 1979, the MBA part in 1980, and we received both degrees in 1982. I believe that Carl started the MBA program in 1980 and received his MBA in 1982. In the core MBA courses, they assigned us to groups of four or five for group projects, and I was fortunate to have been stuck in with genius Carl, who was our go-to guy for all the quantitative stuff.

This serves as a prelude to this long and fascinating article today in the Santa Rosa CA Press Democrat, reported by Nathan Halverson. Some quotes:

California's building codes, plumbing standards and criminal laws can be found online.

But if you want to download and save those laws to your computer, forget it.

The state claims copyright to those laws. It dictates how you can access and distribute them -- and therefore how much you'll have to pay for print or digital copies.

It forbids people from storing or distributing its laws without consent.

That doesn't sit well with Carl Malamud, a Sebastopol resident with an impressive track record of pushing for digital access to public information. He wants California -- and every other federal, state and local agency -- to drop their copyright claims on law, contending it will pave the way for innovators to create new ways of searching and presenting laws.

"When it comes to the law, the courts have always said there can be no copyright because people are obligated to know what it says," Malamud said. "Ignorance of the law is no excuse in court."

Malamud is spoiling for a major legal fight.

He has begun publishing copies of federal, state and county codes online -- in direct violation of claimed copyright.

On Labor Day, he posted the entire 38-volume California Code of Regulations, which includes all of the state's regulations from health care and insurance to motor vehicles and investment.

To purchase a digital copy of the California code costs $1,556, or $2,315 for a printed version. The state generates about $880,000 annually by selling its laws, according to the California Office of Administrative Law.

Malamud isn't just targeting California. He posted safety and building codes for nearly all 50 states, and some counties and cities such as Sonoma County and Los Angeles.

And that is just the start of the article.

Posted by Marcia Oddi on September 3, 2008 01:08 PM
Posted to Indiana Law

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

For publication opinions today (1):

In Harold McComb & Son, Inc. and American Renovation of IN, Inc. v. JP Morgan Chase Bank , a 17-page opinion, Judge Riley writes:

Appellants-Mechanic’s Lienholders, Harold McComb & Son, Inc. (McComb) and American Renovations of Indiana, Inc. (ARI) (collectively, Lienholders), appeal the trial court’s grant of Appellee-Mortgagee’s, JPMorgan Chase Bank, NA (Chase), motion for partial summary judgment in these consolidated actions against Indian Village Apartments, LLC (Indian Village) for foreclosure of the Lienholders’ mechanic’s liens and Chase’s mortgage. We affirm.

The Lienholders present two issues for our review, which we restate as: (1) Whether the Lienholders have standing to challenge Chase’s foreclosure action against Indian Village; and (2) Whether the trial court properly prioritized the liens of the respective parties. * * *

In Gonzales v. Kil Nam Chun, 465 N.E.2d 727, 729 (Ind. Ct. App. 1984), the case relied upon by the trial court, we held that only the parties to a contract, those in privity with the parties, and intended third-party beneficiaries under the contract may seek to enforce the contract. McComb does not contend that it falls into any of these three categories with regard to the Construction Loan Agreement and the Note between Chase and Indian Village. As such, the trial court did not err in determining that McComb lacked standing to challenge Chase’s foreclosure action.

Next, the Lienholders argue that even if the trial court properly concluded that they do not have standing to challenge the foreclosure proceeding, it erred in prioritizing the liens of the parties. They concede that Chase has priority with regard to the land and the buildings, but they contend that their mechanic’s liens have priority as to the improvements they provided. Resolution of this issue turns on the interplay between three statutes relating to the priority of liens: Indiana Code subsection 32-21-4-1(b), Indiana Code section 32-28-3-2, and Indiana Code subsection 32-28-3-5(d). * * *

[Lienholders] rely on their argument that Indiana Code section 32-28-3-2 constitutes an exception to Indiana Code subsection 32-28-3-5(d), a contention that, as discussed above, is not supported by the historical development and judicial interpretation of those statutes. Under these circumstances, the trial court was correct that Indiana Code subsection 32-28-3-5(d) controls and that Chase’s mortgages have priority over the mechanic’s liens. * * *

Based on the foregoing, we conclude that the trial court did not err in finding that McComb lacks standing to challenge Chase’s mortgage foreclosure action or in prioritizing the respective liens. Therefore, we affirm the trial court’s grant of Chase’s motion for partial summary judgment. Affirmed.

NFP civil opinions today (3):

Curtis Cross v. Bon L. Manufacturing Co. (NFP) - "The trial court did not err when it determined that Cross was a dual employee of GRUS and Bon L. Therefore, it properly granted Bon L’s motion to dismiss for lack of subject matter jurisdiction."

Tanisha R. Saunders v. Review Bd. of the Ind. Dept. of Workforce Development and Logan Comm. Resources, Inc. (NFP) - "Tanisha R. Saunders (“Saunders”) appeals the Unemployment Insurance Review Board’s (“Review Board”) determination that she was not entitled to unemployment benefits. We reverse.Saunders raises one issue, which we restate as: whether the Review Board reasonably determined that Saunders resigned without good cause."

Tri-Quality Enterprises, Inc. d/b/a Rhino Linings of Ft. Wayne v. Total Systems Technology, Inc. (NFP) - This is a 19-page, 2-1 opinion. "Tri-Quality Enterprises, Inc. d/b/a Rhino Linings of Fort Wayne (“Rhino Linings”) appeals the trial court’s grant of summary judgment in favor of Total Systems Technology, Inc. (“TST”), and its shareholders, Charles Piscatelli and Dorothy Piscatelli, on Rhino Linings’ third-party claims of breach of contract, common law indemnity, and fraud, as well as the trial court’s denial of Rhino Linings’ motion for summary judgment on its breach of contract claim. On appeal, Rhino Linings raises five issues, which we consolidate and restate as whether the trial court properly granted TST summary judgment on Rhino Linings’ claims of breach of contract, common law indemnity, and fraud. Concluding that the trial court properly granted TST summary judgment on the breach of contract claim, but not the common law indemnity and fraud claims, we affirm in part, reverse in part, and remand."

NFP criminal opinions today (3):

Jason Widmeyer v. State of Indiana (NFP)

William Henderson v. State of Indiana (NFP)

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

Posted by Marcia Oddi on September 3, 2008 12:47 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues opinion on double jeopardy issue

In Roderick Lee v. State of Indiana, an 8-page, 5-0 opinion, Justice Beohm writes:

Multiple convictions do not violate Indiana’s Double Jeopardy Clause if they logically could have been based on the same facts, but in light of the evidence, the instructions, the charges, and the argument of counsel, there is no reasonable possibility that the jury actually used exactly the same set of facts to establish both convictions. * * *

We note that more deliberate prosecution of multiple offenses would avoid these double jeopardy problems. Had the charges, instructions, and closing argument cited the fact of barging into the home as to the burglary alone, and the threats and demands as to the attempted armed robbery, there would be no double jeopardy question, and the trial and appellate courts would not have been required to assess the degree of likelihood of overlapping convictions.

Because we find that Lee’s convictions do not violate Indiana’s Double Jeopardy Clause, Lee was not prejudiced by his attorney’s failure to raise the issue. He has therefore failed to es-tablish ineffective assistance of counsel.

Conclusion. The post-conviction court’s denial of Lee’s petition for relief is affirmed.

Posted by Marcia Oddi on September 3, 2008 11:58 AM
Posted to Ind. Sup.Ct. Decisions

Courts - "Lawyers difficult to obtain in immigration cases"

An interesting story yesterday in the LA Times, reported by Anna Gorman. Some quotes:

Unlike defendants in criminal courts, individuals in immigration court do not have the right to free representation. Though there are no local statistics on the number of people who appeared in immigration court without lawyers, 58% of respondents nationwide were unrepresented, according to the Executive Office for Immigration Review, which oversees the courts.

"Immigration laws are extremely complex," said Immigration Judge Dana Leigh Marks, president of the National Assn. of Immigration Judges. "It's a tremendous aid to us when someone is competently represented."

But finding an inexpensive or free attorney can be extremely difficult, advocates and lawyers said. And the stakes are high: Foreigners can face deportation, family separation and even political persecution.

"Someone who is not an immigration attorney cannot possibly understand the complexities to do what they need to do to have a fighting chance," said Judy London, who directs the immigrant rights project of Public Counsel, a Los Angeles pro bono law firm.

The federal government, private firms and nonprofit organizations are launching new efforts to increase pro bono representation. But advocates said the only solution would be a public defender program.

"Nonprofits just don't have the resources to represent everybody," said Donald Kerwin, executive director of the Catholic Legal Immigration Network.

The Executive Office of Immigration Review has expanded pro bono programs for unaccompanied children and legal orientation seminars for detained immigrants, and has increased the number of court-sponsored training programs for attorneys willing to take cases at no cost.

Posted by Marcia Oddi on September 3, 2008 11:09 AM
Posted to Courts in general

Ind. Gov't. - "The golden age of Lake County government printing contracts might soon be over"

The ILB has had a number of items on Lake County printing contracts.

"Councilman pushes for no-frills printing contract" is the headline to a story today in the NWI Times by Bill Dolan:

CROWN POINT | The golden age of Lake County government printing contracts might soon be over if Councilman Larry Blanchard, R-Crown Point, has his wish.

Blanchard urged county officials on Tuesday to adopt a consolidated contract for printing county government envelopes, letterhead, business cards and other government forms.

He said the county could save 10 percent or more on its $490,000 in printing contracts -- including service and maintenance fees -- by consolidating the work for dozens of county offices into one competitive bidding package.

"It would be no-frills. No gold lettering or raised lettering or seals, but the savings would be substantial," he said.

Posted by Marcia Oddi on September 3, 2008 11:00 AM
Posted to Indiana Government

Ind. Courts - "New judge sought in Valpo hospital lawsuit"

Bob Kasarda reports today in the NWI Times:

VALPARAISO | Landowners seeking to block the construction of a new Porter hospital at Ind. 49 and U.S. 6 have asked Porter County Circuit Court Judge Mary Harper to turn the lawsuit over to another court.

The Liberty Landowners Association argues there is a conflict since Mary Harper was once married to Porter County Commissioner Bob Harper, who along with the other two commissioners is the target of the landowners' suit.

"It would not be unreasonable to question the impartiality of a judge with respect to a former spouse," the request reads.

The request is opposed by the commissioners, who argue the trial rule governing these matters does not apply since Mary and Bob Harper are no longer married.

A hearing on the issue is scheduled for 1 p.m. Monday before Judge Harper.

Posted by Marcia Oddi on September 3, 2008 10:55 AM
Posted to Indiana Courts

Environment - "Delay of megadairy permits, closure of Brownsville store have commissioners meeting with county attorney today"

Pam Tharp, whose stories appear in the Muncie Star-Press and the Richmond Palladium-Item, reports today in a story that begins:

LIBERTY, Ind. -- Decisions about the next step for a livestock zoning ordinance won't be made until after the Union County Commissioners consult with the county attorney today

The county is being threatened with a lawsuit by Liberty Dairy LLC/Vreba Hoff over its delay in issuing a building permit and septic permit for the 2,500-cow megadairy planned for Harrison Township, commissioners said.

The county was also threatened with a lawsuit on another issue, the Union County Health Board's 2005 decision to close Bobkat's Store in Brownsville for 21 months over its septic system. The commissioners will meet in executive session with county attorney Tom Thompson. Executive sessions are not open to the public.

Ind. Law - "Allen County bill may effectively limit abortion"

Recall the controversy last month, recorded in these ILB entries under the heading "Vanderburgh commissioners pass abortion regulations." Part of that controversy arose because the Vanderburgh commissioners passed the ordinance without effective public notice or input.

Today Benjamin Lanka of the Fort Wayne Journal Gazette reports:

The Allen County commissioners this week plan to introduce a bill that would put additional requirements on physicians performing abortions in the county.

Commissioner Nelson Peters said a bill would be introduced Friday that would require all surgeons and doctors who provide outpatient invasive procedures to have ties to a local hospital and have on-call, after-hours staff to handle emergencies. A draft of the bill was not yet available Monday afternoon.

Peters said it was important for anyone performing invasive procedures to have admitting privileges to local hospitals to ensure people who experience problems with those procedures have somewhere to go and get the best care. While the new local legislation would affect abortions, it would affect other procedures as well.

“It really is a quality-of-care issue,” he said.

The Vanderburgh County commissioners in Evansville passed a similar ordinance last month. Backers say such measures protect patient safety, but abortion providers say they restrict women’s access.

The doctor who performs abortions for the lone clinic in Fort Wayne is based in South Bend. Dr. George Klopfer also works in Gary. Klopfer previously questioned whether county government had jurisdiction to require such a change when he is already licensed through the state.

He also previously predicted that the county couldn’t enforce such a law and that it would likely end up in a lengthy court battle.

Posted by Marcia Oddi on September 3, 2008 08:35 AM
Posted to Indiana Law

Ind. Gov't. - New coalition pushing for changes in local government

Mike Smith of the AP writes today:

Efforts to streamline local government, largely tabled this year as legislators grappled with property-tax issues, could gain momentum under a new coalition that is pushing for changes in a system described as cumbersome and redundant.
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The group, which includes the Indiana Chamber of Commerce, the Indiana Association of Realtors and the Central Indiana Corporate Partnership, expects to spend $300,000 to $500,000 to get more of a state panel's recommendations passed in the next legislative session.

"Indiana taxpayers are paying for more layers of government than almost any other taxpayers in the nation," said, Marilyn Schultz, executive director of the coalition, MySmartGov.org.

A commission led by former Gov. Joe Kernan and state Chief Justice Randall Shepard last year recommended 27 changes to a complex local government system it said was mired in an 1850s reality.

The proposals include eliminating township governments and having one elected county chief executive who would appoint county officials now elected such as the sheriff, assessor and auditor. Small school districts would be reorganized so they have at least 2,000 students.

The proposals would cut the number of elected officials in Indiana from more than 11,000 to about 5,100.

The General Assembly enacted a few of the recommendations last session, including one to have the state assume local costs for providing child-welfare services. Lawmakers also transferred the appraisal duties of more than 900 township assessors or township trustee assessors to the county level.

Posted by Marcia Oddi on September 3, 2008 08:29 AM
Posted to Indiana Government

Tuesday, September 02, 2008

Ind. Decisions - Replacement transfer list for week ending August 29, 2008

Here is the just issued replacement transfer list for the week ending Aug. 29, 2008. It is 5-pages long.

The grants are the same as listed in last Friday's updated ILB entry - there are 7 grants in all, all on p. 1 of the revised list. The remaining 4 pages list the cases denied transfer.

This looks to bring all the transfer information up-to-date.

Over 4.5 years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on September 2, 2008 04:35 PM
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit posts two additional Indiana decisions today

In Michael F. Jackson v. Officer Kotter, et al (SD Ind., Judge Tinder), a 26-page opinion, Judge Kanne writes:

After suffering back injuries on two occasions while incarcerated at the United States Penitentiary in Terre Haute, Indiana, Michael Jackson brought a lawsuit against employees of the prison. He raised a negligence claim under the Federal Tort Claims Act (FTCA), see 28 U.S.C. § 2679, and constitutional claims pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Jackson amended his original complaint to name the United States as the proper defendant of his FTCA action, but the district court dismissed the claim against the United States because the amendment was filed after the applicable six-month statute of limitations specified in 28 U.S.C. § 2401(b)(1). Jackson appeals the district court’s dismissal of the United States, as well as the district court’s dismissal of three individual defendants; its grant of summary judgment in favor of Physician’s Assistant (“P.A.”) Williams, whom Jackson alleged was deliberately indifferent to his medical needs; its refusal to allow an amendment naming a new defendant after the applicable statute of limitations had expired; and its refusal to assist Jackson in securing counsel. We affirm all of the district court’s decisions except for its dismissal of the United States of America in the FTCA action, because Jackson’s amendment naming the United States related back to his original pleading, which was timely filed. See Fed. R. Civ. P. 15(c). * * *
The district court’s dismissal of the FTCA claim against the United States is REVERSED, and that claim is REMANDED to the district court for further proceedings. The district court’s remaining judgments are AFFIRMED.

In Freeland v. Enodis Corp. (ND Ind., Judge Sharp), a 36-page opinion, Judge Cudahy writes:

These appeals arise out of bankruptcy proceedings in which Daniel Freeland, Trustee for Consolidated Industries Corp. (Consolidated), sought to recover transfers made by Consolidated to Welbilt Corporation, a company now known as Enodis Corporation (Enodis). The bankruptcy court concluded that the Trustee could avoid over $30 million in transfers made by Consolidated between 1989 and 1998 and the district court affirmed. In addition, the district court, having withdrawn the reference on two of the Trustee’s claims, found that the Trustee could avoid transfers made within one year of the filing of Consolidated’s bankruptcy petition pursuant to 11 U.S.C. §§ 547 and 548. The defendants appeal these decisions. In his cross-appeal, the Trustee challenges the lower courts’ rejection of his alter ego/veil piercing claims against the corporate defendants, the district court’s refusal to enter judgment against Welbilt Holding Company and the grant of summary judgment for the individual defendants. We conclude that the Trustee can avoid transfers from Consolidated to Enodis between 1989 and 1995 as fraudulent transfers but remand for further findings on the issue of Consolidated’s solvency after 1995. We reverse and remand the district court’s grant of summary judgment for the Trustee on his § 547 and § 548 claims. With respect to the Trustee’s cross-appeal, we remand for further findings on the Trustee’s alter ego/veil piercing claims but affirm the remainder of the district court’s judgment. * * *
To summarize, we affirm the district court’s judgment allowing the Trustee to recover the $6.9 million dividend and transfers made pursuant to the Notes prior to the cancellation of the Notes in 1995. We remand for further findings on the court’s solvency determination after the Notes were cancelled. We reverse and remand the court’s entry of summary judgment for the Trustee on the transfers related to the Hall transaction. We vacate the judgment against the Trustee on his alter ego/veil piercing claims and remand for further proceedings consistent with this opinion. Finally, we affirm the district court’s refusal to enter judgment against Welbilt Holding and its entry of summary judgment for the Hirsch defendants. AFFIRMED in part, REVERSED in part, VACATED in part and REMANDED with directions. Each party shall bear its own costs of these appeals. 9-2-08

Posted by Marcia Oddi on September 2, 2008 04:15 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Law - More on: Indiana building codes, part of the Indiana Administrative Code, are not available online [Updated]

This is big!

Recall this ILB entry, from August 7th, complaining that the Indiana building codes were not available online? That Indiana and many other states simply incorporated by reference codes put out by the International Code Council, a private group, and in the Indiana rules and local ordinances all you will find are the exceptions? More from the Aug. 7th post:

These are exceptions to what is in the published International Code, and of course mean nothing to you if you can't read them with a copy of that Code.So what is an Indiana citizen to do? The copyrighted codes are nowhere freely available online. Go downtown and read the agency's copy. Or maybe there is one at your library. Or you can purchase one for $95 from the International Code. Actually, in all cases it is two: you'll need both the International Code and the state exceptions. And the state has a number of different codes, plumbing, electrical, mechanical, etc.

Well, today Carl Malamud, about whom the ILB has written before, after what has had to have been an enormous amount of effort, has made available online the codes of all the states. He wrote to the FOIA Listserv today:

Your readers may remember our July 4th release of California public safety codes. After a systematic survey of all 50 state fire marshalls, building commissions, administrative codes, and other authorizing legislation and regulations, we are pleased to announce that our code site has now gone national: http://bulk.resource.org/codes.gov/

These codes are all critical for public safety, apply to us all, and the model codes and standards incorporated therein were all intended to be made into laws by the standards creators. It is ironic that the laws that most directly touch our daily lives have been the least accessible, locked up behind a cash register.

In addition, the above-referenced directory features other laws of general applicability, including the California Code of Regulations and California local and county administrative codes.

A readme directory explains some of the underlying issues, making use of the scads of 3-ring binders we accumulated in purchasing materials for this release to create a set for "Code City," a graphic novel of sorts.

This is exciting, but some cautions. The "readme" is fairly quirky, a "Mr. Bill"-type set of 29 slides. I can't find anywhere that he just said what he had to say, straight up. And he should, as he is making an argument as to why these codes are not subject to copyright.

As for the codes themselves, I have downloaded the Indiana building, fire, gas, mechanical, and residential codes. You can't simply look at them online, these are enormous bulk files. The building code, for instance, is 58 MG. It is 750 pages long, but these are scanned pages.

The 2006 International Building Code begins at p. 33 of the 750-page document. As it has been scanned right out of the 3-ring notebooks, it is not searchable, at least not currently.

The Indiana Building Code, 2008 Edition (675 IAC 13-2.5) is based on: International Building Code (2006 Edition) with Indiana amendments. The first 32-page of the document are the exceptions. These are what you may currently find online in the Indiana Administrative Code at 675 IAC 13-2.5.

When I have time I may work with with these files and make them user-friendly. I'll wait to post them, however, until any potential legal problems have resolved themselves.

[Updated] Silly me. You can watch the "Mr. Bill" slides as an animation, here. But then you miss the comments underneath each slide.

Posted by Marcia Oddi on September 2, 2008 02:35 PM
Posted to Administrative Law | Indiana Government | Indiana Law

Courts - "Jury Exemptions for Nursing Mothers"

Amanda Bronstad of The National Law Journal reports today in a story that begins:

Amid a wide blanket of legal protections for women who breastfeed in public, an increasing number of states have passed laws that exempt nursing mothers from jury service, with more states introducing bills on the issue.

Eleven states and Puerto Rico have passed laws that exempt nursing mothers from jury service, according to the National Conference of State Legislatures (NCSL). Most of the statutes became effective in the past five years, including those in Illinois, Kansas, Kentucky, Mississippi, Oklahoma and Virginia. Some laws require nursing mothers to have a note from a doctor; others permit the exemption up to a certain age of the child.

In the past two years, more than a dozen states have introduced bills, most of which failed, relating to jury service exemptions for nursing mothers, according to the NCSL. This year's failed bills include those in Massachusetts, Maryland, Minnesota and New Mexico. Many plan to reintroduce the legislation next year.

The legislation is being driven by constituent complaints at courthouses and often has been enveloped in other laws protecting the rights of nursing mothers in public and at their workplaces.

Posted by Marcia Oddi on September 2, 2008 02:28 PM
Posted to Courts in general

Ind. Decisions - 7th Circuit issues two Indiana decisions today

In US v. Wheeler (ND Ind., Judge Miller), a 19-page opinion, Judge Cudahy writes:

A jury convicted James Wheeler of embezzling, stealing or otherwise converting employee contributions to his company’s health insurance and 401(k) funds in violation of 18 U.S.C. §§ 669 and 664. The district court sentenced him to concurrent 63 and 60 month sentences and three years’ supervised release. On appeal, Wheeler raises two challenges to his conviction. First, he contends that the district court erred in defining the mens rea element of the offense under § 669. He also argues that the court admitted impermissible prior act evidence in violation of Federal Rule of Evidence 404(b). In addition to challenging his conviction, Wheeler challenges his sentence on the grounds that the district court imposed an enhancement that lacked evidentiary support. We affirm Wheeler’s conviction and sentence.

In US v. Ervin and Zambrana (ND Ind., Judge Springmann), a 20-page opinion, Judge Kanne writes:

A federal grand jury charged Jay Zambrana and James Ervin with violating numerous provisions of federal law by participating in a drugtrafficking conspiracy, see 18 U.S.C. §§ 2, 922(g)(1), 1951, 1956(a)(1)(A)(i), (a)(1)(B)(i), 1957; 21 U.S.C. §§ 841(a)(1), 843(b), 846, 856(a)(1), and by killing two men in furtherance of that conspiracy, see 18 U.S.C. § 2; 21 U.S.C. § 848(e)(1)(A). Before trial, Zambrana sought to sever the homicide counts from the drug-conspiracy counts, see Fed. R. Crim. P. 14(a), to no avail. A jury found Zambrana and Ervin guilty on all counts, based largely on the extensive testimony of the two men’s co-conspirators who agreed to testify against them in exchange for immunity or reduced sentences. Two years later, Zambrana and Ervin filed motions seeking a new trial, see Fed. R. Crim. P. 33(a), on the grounds that new evidence came to light showing that (1) one of the co-conspirators who testified against them engaged in several acts of misconduct while detained at the city jail in Hammond, Indiana, before trial; and (2) the government withheld the evidence of that misconduct in derogation of Brady v. Maryland, 373 U.S. 83 (1963). The district court denied the motions. We affirm.

Posted by Marcia Oddi on September 2, 2008 02:12 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

For publication opinions today (1):

In Ronald Sanders, Paul Hardin, Dallas Kelp, et al. v. Board of Commissioners of Brown Co., In, et al., a 10-page opinion, Judge Mathias writes:

After the Brown County Board of Commissioners (“the Commissioners”) passed an ordinance creating a county-wide fire protection district, several property owners (hereinafter referred to as “the Freeholders”) filed a complaint in Brown Circuit Court requesting a declaratory judgment that the ordinance was void. After summary judgment motions were filed, the trial court entered summary judgment in favor of the Intervenor-Defendant, the Board of Fire Trustees (“the Trustees”), and concluded that the Commissioners had the authority to create a fire protection district pursuant to Indiana Code section 36-8-11-4. The Freeholders appeal and argue that the Commissioners lacked statutory authority to create a fire protection district. We affirm. * * *

We agree with the trial court’s interpretation of the Act. First, we note the section 36-8-11-4 language stating, “[a] county legislative body may establish fire protection districts . . .”, does not reference the freeholder petition process established in section 36-8-11-5. If the General Assembly intended the freeholder petition process to be a prerequisite for the establishment of the fire protection district by the county legislative body, it could have easily provided for such limitation in section 36-8-11-4. See Kochis v. City of Hammond, 883 N.E.2d 182, 186 (Ind. Ct. App. 2008) (“[I]t is just as important to recognize what a statute does not say as it is to recognize what it does say.”)

We also find support for our conclusion in the language of section 36-8-11-5, which states, “Freeholders who desire the establishment of a fire protection district[.]” From this language, we can reasonably conclude that the General Assembly desired to empower freeholders with the ability to create the fire protection district if the county legislative body does not do so.

For all of these reasons, we conclude that the Commissioners had the authority pursuant to section 36-8-11-4 to pass the Ordinance, which created a county-wide fire protection district. Accordingly, the trial court properly entered summary judgment in favor of the Trustees.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on September 2, 2008 12:40 PM
Posted to Ind. App.Ct. Decisions

Ind. Law - "Upon request, the veterinarian shall provide the prescription to the client"

JAVMA News has a story dated Sept. 15 on state legislation enacted so far in 2008 relating to veterinary practice. A quote:

Among the highlights this year, Indiana implemented a sweeping revision of its veterinary practice act, redefining the practice of veterinary medicine and the meaning of direct and indirect supervision of veterinary staff. Other important changes included the following:
adding a registered veterinary technician to the Indiana Board of Veterinary Medical Examiners

establishing a veterinary investigative fund for use by the licensing board to investigate the nonlicensed practice of veterinary medicine

clarifying the role of veterinarians in writing prescriptions to a third party, including the right to refuse to write an inappropriate prescription

establishing veterinary medical records as confidential

granting veterinarians immunity from retaliatory litigation for reporting animal cruelty.

Here is the new law, SEA 316. The ILB was particularly interested in SECTION 40 of the bill, which added to IC 25-38.1-4-5, which concerns prescriptions of licensed veterinarians, new subsections (b) through (d). New subsection (d) provides:

(d) If a veterinarian prescribes a drug for the client's animal, upon request, the veterinarian shall provide the prescription to the client, unless prohibited by state or federal law or to prevent inappropriate use.

Posted by Marcia Oddi on September 2, 2008 10:48 AM
Posted to Indiana Law

Courts - Practice Pointer: Filing Non-Record Materials before the SCOTUS

From Ben Winograd , writing in the SCOTUSBlog, an instructive entry that begins:

When the Court grants certiorari in a case, it receives a copy of the record and the parties also compile a joint appendix. But what happens if counsel believes that the Court should have access to non-record materials?

In May 2003, as part of a series of amendments to the Supreme Court rules, the Justices established a straightforward procedure by which parties may “lodge” (not “file”) non-record material.

Posted by Marcia Oddi on September 2, 2008 10:36 AM
Posted to Courts in general

Ind. Court - Posey County Circuit Judge James Redwine writes book on 1878 lynchings

Rich Davis of the Evansville Courier & Press has the story. Some quotes:

MOUNT VERNON, Ind. — One night in October 1878, a white mob stormed the jail and lynched four innocent African-American men on the public square here. * * * That much we know.

But Circuit Judge James Redwine — whose office 130 years later overlooks the same square and who has written a novel called "Judge Lynch!" about the heinous episode and its cover-up — is hoping the book brings atonement.

"At a bare minimum, we owe that to those men and O.C. Thomas, too," he said, referring to the deputy sheriff he believes was killed by friendly fire during one of the arrests.

Redwine, who began researching his book in 1991, would like to see a public marker acknowledging the tragedy. He's also hoping someone will step forward to help bring the full story to light.

"I know human nature," said Redwine, an Oklahoma native and Indiana University Law School graduate who has been a Posey County judge 28 years. "Somebody's got a file cabinet or a family bible or a diary. Something this horrendous did not go unnoticed. A lot of good people at night had to turn on their coal oil lamps and record what happened."

Although the nearly 500-page book, self-published through AuthorHouse, is rooted in fact, Redwine has taken some poetic license with events and characters to spin an epic tale that spans from 1795 to the present day.

Posted by Marcia Oddi on September 2, 2008 09:11 AM
Posted to Indiana Courts

Ind. Law - "Golf carts, state police policy collide"

Niki Kelly of the Fort Wayne Journal Gazette today has the definitive newspaper article, so far, on the golf cart issue. It begins:

INDIANAPOLIS – Hundreds of Hamilton residents use their golf carts to go to the post office, pick up groceries or make an ice cream run in their Steuben County lake community.

And they are properly registered with the town – for a $40 annual fee – under an ordinance passed in May that requires insurance and certain safety features, and limits the number and ages of passengers.

“With the economy faltering and gas prices going through the roof, this is a way to save gas,” said Milton Otero, the Hamilton town manager. “Our residents are saving tons of money and loving it.”

But as the popularity of the fuel-efficient golf carts grows statewide there is still much confusion over their legality on the roads, and Indiana State Police troopers have even ticketed some golf cart drivers.

The state police tried to clarify the situation with a statement last week.

It said Indiana law doesn’t specifically ban or restrict the use of golf carts on public roadways. But there are some caveats.

“What does all this mean?” the state police statement asked. “A golf cart can be lawfully operated on public streets and/or highways if they can be properly registered and plated with the BMV. The BMV will not register a golf cart because it does not meet the safety and equipment standards for motor vehicles that are to be driven on highways.”

The statement went on to say that “while the Indiana State Police is not engaged in an active enforcement campaign to target the operation of golf carts on roadways, troopers will not turn a blind eye where violations of this nature are observed in the course of routine patrol.”

And the state police remind Hoosiers that even if their local communities have an ordinance, state law trumps local law.

Dennis Rosebrough, spokesman for the Bureau of Motor Vehicles, agrees the issue is not an easy one.

“The whole issue of non-traditional motorized vehicle has been heating up,” he said. “It is a topic of discussion among the agencies. The proliferation of golf carts is pushing the limits of the definition and forcing these kinds of conversations.”

He broke the issue down into three facets.

First, a golf cart does meet the basic definition of a motor vehicle, which is that it be self-propelled.

The next important factor, Rosebrough said, is that most traditional golf carts don’t meet the safety equipment requirements set forth in state and federal law to be on the road, such as having a horn, headlights, taillights, turn signals, windshields and even safety belts.

Lastly, he said the BMV would hypothetically consider registering and plating a golf cart but only if the manufacturer equips the vehicles to meet state and federal standards.

From the end of the story:

Rep. Sandy Blanton, D-Orleans, said she is considering a bill to make clear that golf carts are legal and that BMV can and should register them. A constituent of hers was ticketed for being unlicensed while riding a golf cart on a town street in Mitchell.

She also is a member of the Joint Study Committee on Mass Transit and Transportation Alternatives and hopes to lead a discussion on the topic during the coming months.

“A lot of rural areas are very interested in this,” Blanton said. “I hope we can find a balance that serves the safety of Hoosiers and local communities looking for transportation options.”

For the most informative recent ILB entries, see 8/26/08 (State Police analysis); 8/27/08 (State Police answer ILB questions); 8/29/08 (BMV answers ILB question).

Note: If you have strong feelings on this issue, pro of con, and would like to contact your legislator, now might be a good time to do it, before they get busy with the legislative session. (Of course, be aware that the election is Nov. 4, which might change a few legislators).

Posted by Marcia Oddi on September 2, 2008 08:54 AM
Posted to Indiana Law

Monday, September 01, 2008

Ind. Courts - Indiana appellate judges create retention website

As I wrote in this ILB entry on Friday, an item on the agenda of the Commission on Court's meeting Aug. 28th was: "Public access to information concerning retention elections for judges of the Indiana supreme court, court of appeals and tax court."

Judges Terry Crone and Cale Bradford appeared before the Commission on Courts to discuss with legislators what the judiciary is doing to insure a more informed electorate insofar as information for the voters asked to vote "yes" or "no" on this November's ballot re the retention of appellate judges is concerned.

The steps taken so far to make the courts and their work more accessible, they reported, include:

First, "Appeals on Wheels", where the Court of Appeals panels frequently meet outside their Statehouse courtroom, instead traveling to hold oral arguments at various locations around the State.

Second, the judges said, the COA has begun posting its Not for Publication (NFP) opinions online, noting that of the 2,800 opinions issued this year, approximately 2,100 are NFP.

A third step, to go into operation soon, will result from the installation of video equipment in the Court of Appeals Courtroom, so that all the COA Statehouse oral arguments will be watchable via a webcast.

Concerning specific information re judges up for retention, Judge Bradford said he had been assigned to spearhead that task, because at the time he was the newest member of the appellate bench. He said they had developed a site based on the concept of a one-stop retention website, consolidating existing information from a number of sources. Judge Bradford demonstrated the prototype that has been developed.

Links to all of the oral arguments of the judges up for retention will be available from the new site, as well as their every opinion, accessible both by the judge's name, and by subject matter. To do this, Judge Bradford explained, the Court will need to spend about $4,200 for a short-term contract with Lexis. The reason, as the ILB found out later, in response to an inquiry, is that the Court's own opinions database, the one available to the public, only goes back to 1999, not far enough to cover all the opinions of some of the court members, who have served well over 20 years.

Judge Bradford said the site would include a link to the Indiana State Bar Association's results of ISBA members' evaluations of judges.

One of the legislative members of the Commission on Courts noted that in the mock-up, some of the bios included which governor had appointed the judge, and some didn't. She asked that this information be included for every judge, as that was the first question that any voter asked her about a judge.

This new website is not yet available. In response to a question posed later by the ILB to a court representative, it will be available "soon." The ILB will provide a link as soon as the new site is up. The election is Nov. 4th.

Posted by Marcia Oddi on September 1, 2008 02:57 PM
Posted to Indiana Courts

Courts - "Missouri judges evaluated a new way for retention vote"

William C. Lhotka of the St. Louis Post-Dispatch reports today:

Review teams of six lawyers and six laymen will provide voters with an evaluation as well as results from a survey of lawyers and opinions of jurors.

Twenty-three St. Louis-area judges on the Nov. 4 ballot will learn this week whether newly constituted review teams think they should keep their robes.

Also under refreshed scrutiny are Missouri Supreme Court Judge Patricia Breckenridge and three appellate judges from eastern Missouri: Robert Dowd Jr., Roy Richter and Kurt Odenwald.

On Thursday, the Missouri Bar, the Bar Association of Metropolitan St. Louis and the Kansas City Metropolitan Bar Association will release and post online their evaluations recommending which judges should be retained or dumped.

Voters have historically paid little attention to such advice, but lawyers say they hope a revamped system will carry more weight.

The Supreme Court approved the plan, in which committees of six lawyers and six laymen in each jurisdiction will judge the judges. The committees will provide voters with a summary of each judge's background and evaluation, and results from a survey of lawyers. Opinions of jurors who served in their courtrooms also will be revealed.

The process does not apply to outstate Missouri, where judges seek election and re-election in partisan contests. But judges for the Missouri Supreme Court, appellate court and in urban areas are appointed by the governor to terms of up to 12 years, and require a majority vote of the public at retention time to remain.

Judicial performance surveys in Missouri date back to 1948 and were expanded in 1992 to consider more than a dozen factors.

Dale Doerhoff, a Jefferson City lawyer and one of the architects of the revised evaluations, said it came after a 2007 speech by then Chief Justice Michael A. Wolff calling for a more useful evaluation.

Wolff wanted to poll not just lawyers "but also the voices of jurors, litigants, witnesses, court staff and others who have direct experience with the judges."

Doerhoff said the bar studied the surveys of a dozen states, some of which cost taxpayers millions of dollars. Missouri's new one is financed by the state's 28,000 lawyers.

The committees, not just the raw numbers from surveys, decide whether to recommend retention.

Some states, like Colorado and Arizona, provide even broader input, Doerhoff said. Later, he said, "We are going to evaluate ourselves and see how we can make it better next time."

Also new is a requirement that a lawyer filling out an evaluation must certify personal knowledge of a judge. Before, St. Louis area attorneys who appeared 20 times in a courtroom in the city or county could vote on all of the judges up for retention in both locations.

In 2006, the lawyers' Voter's Information Guide recommended against retaining Judges Judy Preddy Draper, who got a 27.5 percent approval rating, and Brenda Stith Loftin, who got a 49.7 percent. Both were retained by significant margins anyway.

Retired Judge Susan Block suggested the two were victims of racial bias; Draper is Asian-American and Stith African-American.

Loftin said she has not seen the new surveys but thinks they may increase diversity. Draper declined to comment.

St. Louis attorney Thomas M. Walsh, a vocal critic of the Missouri's method of judge selection and retention, said the new system might be just window dressing.

"The effect of surveys in the past was negligible at best and made no difference to the voting public," Walsh said, citing Draper.

He said the priority should be getting good judges in the first place. While the governor appoints an appellate or urban judge from a list of three narrowed by a nominating commission, the public learns only the names of the finalists.

Another frequent critic, Professor William Eckhardt of the University of Missouri at Kansas City's law school, praised the revamp. "The more information the public gets, the better," he said.

Doerhoff said the Missouri Bar refrained from asking the Legislature for public funding because of lean financial times. He said Kansas taxpayers provide $250,000 for such a survey.

In Arizona and Colorado, the states send judicial performance reviews to every home with a registered voter. Colorado's evaluations reflect opinions from attorneys, litigants, jurors, crime victims, police, social service caseworkers, probation officers and court employees. They also include sentencing statistics.

Posted by Marcia Oddi on September 1, 2008 02:52 PM
Posted to Courts in general

Courts - "Report cards on Kansas judges are online"

Diane Carroll of the Kansas City Star reports today:

What do you know about the judges in Kansas?

If the answer is “not much,” you may be interested in the “report cards” coming out for the first time today. Evaluations will be online for every judge in Johnson, Douglas and Leavenworth counties — and every judge in the rest of the state who faces a retention vote on the Nov. 4 general election ballot.

“Virtually everyone we’ve talked to says they have no information about the job a judge is doing and that they are voting blindly,” said Rich Hayse, chairman of a commission established by the Legislature in 2006 to manage the evaluation process.

The Kansas Judicial Report Card is designed to provide the information voters need in a nonpartisan manner, Hayse said.

The evaluations are based on confidential surveys of attorneys, witnesses, litigants, law enforcement officers, jurors and others who have worked with the judges. A professional research firm summarizes the results, so the judges never know who said what about them.

Kansas has 264 judges and justices. All 20 at the appellate level and 129 trial court judges — including those in Johnson, Leavenworth and Douglas counties — are chosen by merit selection and face retention votes. The remaining 115 trial court judges, including those in Wyandotte County, run in political elections.

All of them eventually will be evaluated, Hayse said. But the results for those who run in political elections will not be released. Instead, that information will go to each judge for self-improvement purposes.

Chief Judge Stephen Tatum in Johnson County said the county’s judges think the report cards are a good idea. The district court also surveys citizens who have served as jurors.

Unfortunately, the ILB found the site very slow, overly complicated, and difficult to use. And attempting to go directly to the 26-page report on one of the justices locked up the ILB computer, twice. So no details for now on the evaluation criteria, etc.

Posted by Marcia Oddi on September 1, 2008 02:13 PM
Posted to Courts in general

Ind. Courts - "Lake County civil courts to switch to random filing system"

An interesting story today in the NWI Times, reported by Marisa Kwiatkowsli:

Calvin Hawkins was slated to be a traveling judge when he first was appointed as a Lake County Superior Court judge in 2007.

The East Chicago courthouse he took over had consistently low numbers of case filings, so Hawkins was told he had to spend a day each in two other Superior Court judges' courtrooms hearing cases.

"I protested it," Hawkins said. "I understood the rationale, but this is the only ... one-person judge courthouse. In October, if the desire was to close this (East Chicago) court -- and there was a serious move to close it -- that would (have been a mistake)."

Hawkins' court was an example of what some in the Lake County legal community call a flaw in court case filings that a new system is aimed at fixing next year.

In Lake County's seven civil division courtrooms and one circuit court, attorneys can select the venue in which they file their cases. The practice has contributed to a hefty disparity among the courts' caseloads.

There has been as much as a 137-case difference in filings per month this year among the different civil division rooms, excluding the court that handles domestic relations cases, Superior Court filings show.

Starting next year, most of those courts plan to move to a random filing system to ensure more balanced apportionment of cases with courtrooms. The system already is used by the Lake County criminal courts and, to a certain extent, other county courts that are housed in the same building.

Proponents of the plan argue it will help equalize the workload among judges and maximize efficiency.

The weighted caseload plan was approved by Lake County judges and is awaiting approval from the Indiana Supreme Court. The county is mandated to balance its caseloads every two years.

"That's what the public expects from us," Chief Judge John Pera said. "I think the public wants that. It is a no-brainer."

The plan will affect personal injury, mortgage foreclosure and accident cases, major civil litigation and miscellaneous cases that don't fit into specific categories. Judge Elizabeth Tavitas, who primarily handles domestic relations cases, is exempt from those changes.

Hawkins said he is opposed to the plan and argued lawyers filing civil cases should be able to choose their judges. Since he took over East Chicago's county judgeship, filings in that court have continually increased, he said.

A Lake County Bar Association survey, which garnered only 29 responses, shows more than 85 percent of respondents were opposed to random filing.

"Random filing renders obsolete the point of local courthouses," attorney Kenneth J. Allen said, noting that courtrooms in Hammond, Gary and East Chicago give residents more access to the courts.

"I don't favor it," Allen said of random filing.

But Pera said the caseload disparities became more apparent in the last year.

"I understand how lawyers like to select the judge who will be hearing the case, but I think it's more important that all the judges in the county are working at the same level and efficiency," he said. "This will move litigants' cases more quickly through the court system."

Posted by Marcia Oddi on September 1, 2008 12:14 PM
Posted to Indiana Courts

Ind. Law - Disregarding school bus stop arm is a misdemeanor

Ken Kosby has a story today in the NWI Times:

This is the first in a series of articles highlighting commonly broken laws, explaining common misconceptions about the laws and detailing what types of actions will get a person in trouble. With school starting recently, today we examine school zone speeding and school bus stop arm violations. * * *

Most people understand they can be ticketed for speeding in a school zone, but police say many people don't realize that disregarding a school bus stop arm is a misdemeanor, not merely an infraction. In addition, police don't have to witness the offense to charge the offender.

"The bus driver can get the license plate number, vehicle and driver description ... and we can follow up on it," Grennes said.

Portage police Sgt. Keith Hughes reminds motorists that they must stop for a school bus stop arm whether they are going the same direction as the bus or the opposite direction. They must stop even if on two-lane roads with a turn lane in the middle or undivided four-lane roads.

"The only exception is on a divided highway," Hughes said.

Posted by Marcia Oddi on September 1, 2008 12:08 PM
Posted to Indiana Law

Ind. Courts - If approved, new local rule would give co-defendants the same judge

Pablo Ros of the South Bend Tribune has a long story today that begins:

SOUTH BEND — On July 21, a few days after he charged four men with carrying out a murder, chief deputy prosecutor Ken Cotter filed a motion in St. Joseph Superior Court for a change of judge.

He wanted the same judge to preside over the cases of all co-defendants. It was a request he had made before, but occasionally and informally — orally, not in writing. Over the past few months, however, the prosecutor’s office had made it a habit of filing such motions, seeking justice within the walls of the same courtroom for defendants who had allegedly acted together to commit a crime.

This new approach was symptomatic of a more permanent change on the horizon that was engineered behind the scenes of the courthouse.

Chief Judge John Marnocha said he has submitted for approval by the Indiana Supreme Court a new rule that would provide for the assignment of felony cases in which co-defendants have been charged to the same judge or magistrate. If approved, the new rule, which would apply to all felonies except murder, would take effect Jan. 1.

The new rule is significant because it would make court rulings more consistent and the court system as a whole more efficient and fair, those interviewed for this story said. By tinkering with the current status quo — in which felony cases are randomly assigned to each of four judges through a computerized system — it would help avoid the arguably unfair outcome of a recent criminal case that added fuel to the engine of change.

Those interviewed for this story referred to it as the Park Jefferson case.

Posted by Marcia Oddi on September 1, 2008 11:55 AM
Posted to Indiana Courts

Courts - More on: "Kentucky will retain all court records forever"

"Kentucky will retain all court records forever" was the headline to an April 14, 2007 report in the LCJ. This ILB entry has a quote from the no longer available online story:

Kentucky will retain all court records forever, the state's top court administrator said, addressing criticism after tens of thousands of old Jefferson County files were destroyed.

Records from across the state will be stored in a Frankfort warehouse that the Administrative Office of the Courts has budgeted $100,000 to rent, said Jason Nemes, who was named the agency's director Thursday after serving on an interim basis. * * *

AOC's handling of court records emerged as a hot topic last fall after the disclosure that it had destroyed misdemeanor records at least five years old in Jefferson County. Prosecutors and probation officers complained the purge made it more difficult to prove an offender's past misconduct.

The ILB has a number of entries on this Kentucky issue, including the initial coverage from Dec, 16, 2006, including this LCJ quote - emphasis added by ILB:

State court officials have endangered the public and undercut the prosecution of spouse abusers and other offenders by destroying all misdemeanor records 5 years or older, prosecutors and judges in Jefferson County say.

Interim Jefferson Circuit Clerk Michael Losavio said the Administrative Office of the Courts sent "six or seven burly men" to the courthouse Nov. 29 to haul away all microfilm and microfiche records dating from before 2001, all of which have since been destroyed.

Electronic records of old misdemeanor convictions also have been purged from the state court computer system.

State court officials say the records were destroyed based on a statewide document-retention policy amended last year to include electronic records. Previously, only paper court files were destroyed after five years under the policy, which is designed to free up space and save money on storage costs.

Something appears to have been lost in translation between then and now.

Yesterday, Jason Riley had this story in the LCJ, headlined "Kentucky needs new way to archive court records." [Thanks to the Kentucky Law Blog for spotting this story.] Some quotes:

In April of last year, the state's top court administrator said Kentucky would retain all court records forever, a response to widespread criticism after tens of thousands of old Jefferson County files were destroyed.

But now the state archives building in Frankfort and courthouses across Kentucky are overflowing with files of misdemeanors and traffic cases that used to be destroyed.

Officials say they must come up with a different solution.

"We are just out of room," said Kentucky Chief Justice John D. Minton Jr. "We're drowning in paper."

So Minton has formed a committee, led by Court of Appeals Judge Thomas Wine and including judges, court clerks, prosecutors and a representative from the Department of Public Advocacy, to review how the state retains, destroys and archives court records. * * *

The handling of court records by the Administrative Office of the Courts emerged as a hot topic two years ago after the disclosure that it had destroyed misdemeanor and traffic records in Jefferson County that were at least 5 years old.

Prosecutors and probation officers complained the purge made it more difficult to prove an offender's past misconduct. And job applicants have said they are unable to prove that old charges were dropped. They are instead given a sheet of paper to show prospective employers that says misdemeanor cases and traffic charges and convictions before November 2001 have been destroyed.

A report from a panel appointed by former Chief Justice Joseph Lambert in February 2007 blasted the Administrative Office of the Courts for "indifference, inexperience, intransigence and ineptness."

The panel condemned those officials for ignoring the importance of the records and for not realizing they could be stored cheaply in electronic formats.

Jefferson Commonwealth's Attorney Dave Stengel called the situation in Jefferson County an ongoing "nightmare" last week and said the committee should quickly look to move away from its paper-driven system.

"With the technology they have today, they can store this stuff on the head of a pin," he said.

Wine, who also headed the panel appointed by Lambert, agreed that technology is the most obvious answer.

"We need to move the storage issue into the 21st century," he said, adding that the committee will explore the cost of scanning paper files onto disk and move toward keeping the records online.

Wine said the committee will also look at destroying records that "have little or no value," such as old traffic tickets.

"There's not a lot of need for us to keep a speeding ticket," he said.

But both Wine and Minton stressed that all records needed to effectively prosecute people and criminal records that citizens are allowed to have expunged will be available.

"We intend to move forward with technology and at the same time preserve the records we need to preserve," said Minton, who became chief justice in June.

The other issue is the unknown cost to move from hard copy to disk, officials said. That's a concern, given the limited funds available across the state.

But right now, the state is paying more than $150,000 a year in storage costs at the Kentucky Department for Libraries and Archives in Frankfort.

The initial complaint in 2006 was that "burly men" from the state destroyed microfilm and microfiche records, and purged electronic records. The issue, at least as initially reported by the LCJ, was never with paper records.

Posted by Marcia Oddi on September 1, 2008 08:01 AM
Posted to Courts in general

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, Sept. 4th:

9:00 AM - Dennis Conwell v. Gray Loon Outdoor Marketing Group, Inc. - In a contract dispute relating to the redesign and posting of a website, the Vanderburgh Superior Court entered judgment for Gray Loon Outdoor Marketing Group. The Court of Appeals affirmed. Conwell v. Gray Loon Outdoor Mktg. Group, Inc., No. 82A04-0609-CV-488, (Ind. Ct. App., 9/7/2007), reh'g denied, vacated. [See ILB summary here - 3rd case.] The Supreme has granted a petition to transfer the case and has assumed jurisdiction over this appeal. Attorney for Appellant: Robert R. Faulkner, Evansville, IN. Attorney for Appellee: James E. Gentry, Jr., Evansville, IN.

9:45 AM - Edwin Hayes, Jr. v. State - The Dearborn Circuit Court accepted the appellant’s guilty plea to various charges and sentenced him accordingly. The Court of Appeals reversed one of the convictions because the facts did not create a sufficient evidentiary foundation. See Hayes v. State, 879 N.E.2d 1179 (Ind. Ct. App. 1/31/2008), vacated. The Supreme Court has granted a petition to transfer the case, and has assumed jurisdiction over the appeal. Attorney for Hayes: Leanna Weissmann, Lawrenceburg, IN. Attorney for State: Scott L. Barnhart, Indianapolis, IN.

Webcasts will be available here.

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

None scheduled.

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

This Wednesday, Sept. 3rd:

10:00 AM - Andrew Kawlewski vs. State of Indiana - Appellant-Defendant appeals his conviction for possession of cocaine, as a Class D felony, following jury trial. Appellant-Defendant was a passenger in a vehicle pulled over for a signal violation which escalated to a drunk driving investigation of the driver. Appellant-Defendant argues that because he was detained for 19 minutes without any reasonable, articulable suspicion of criminal activity, his constitutional rights were violated. The Scheduled Panel Members are: Judges Riley, Bailey and Bradford. [Where: Indiana Court of Appeals Courtroom]

2:00 PM - Ray A. Haas, M.D., v. Donald Bush, Personal Representative of the Estate of Elaine Brown - In this medical malpractice case, Appellant/Defendant Ray A. Haas, M.D. appeals a jury verdict in favor of Donald Bush, Personal Representative of the Estate of Elaine Bush. Haas claims the Indiana Supreme Court exceeded its authority under the Indiana Constitution when it established the loss of chance doctrine in the case of Mayhue v. Sparkman, 653 N.E.2d 1384 (Ind. 1995). Specifically, his challenge is based on article 1, § 1 and article 4, § 1 (separation of powers) and article 1, § 23 (equal privileges, including an as-applied challenge) of the Indiana Constitution. In a separate argument, Haas claims the trial court erred when it declined to exclude the written opinion of the Medical Review Panel from evidence at trial. The Scheduled Panel Members are: Judges Friedlander, Kirsch and Bailey. [Where: Indiana Court of Appeals Courtroom]

Posted by Marcia Oddi on September 1, 2008 06:19 AM
Posted to Upcoming Oral Arguments

Sunday, August 31, 2008

Courts - Still more on: DOJ moves to improve immigration judges, after months of criticism

This Aug. 10, 2006 ILB entry began: "Some readers may recall this Dec. 26, 2005 ILB entry, quoting from several stories critical of U.S. immigration judges. The 7th Circuit has not been reticent in criticizing the rulings of immigration judges ..." On April 21 of this year, Judge Richard A. Posner, U.S. Court of Appeals, Seventh Circuit, gave a speech before the Chicago Bar Association, Administrative Law Judges Committee, titled "Judicial Review of Immigration Judges."

On July 28th the US Dept. of Justice issued a 146-page report: "An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General."

Charlie Savage, now of the NY Times, recently published an analysis of Justice Dept. data. His report begins:

WASHINGTON — Immigrants seeking asylum in the United States have been disproportionately rejected by judges whom the Bush administration chose using a conservative political litmus test, according to an analysis of Justice Department data.

The analysis suggests that the effects of a patronage-style selection process for immigration judges — used for three years before it was abandoned as illegal — are still being felt by scores of immigrants whose fates are determined by the judges installed in that period.

The data focuses on 16 judges who were vetted for political affiliation before being hired and have since ruled on at least 100 cases each.

Comparison of their records to others in the same cities shows that as a group they ruled against asylum-seekers significantly more often than colleagues who were appointed, as the law requires, under politically neutral rules.

Critics of the politicization of the immigration bench say it is not enough that in 2007 the department stopped using illegal hiring procedures. The fact that many of the politically selected judges remain in power, they say, continues to undermine the perceived fairness of hearings for immigrants fighting deportation.

The immigration court “is now the seat of individuals who were appointed illegally, and that means that in the minds of many people the court symbolizes illegality,” said Bruce Einhorn, a Pepperdine University law professor who was an immigration judge from 1990 until he retired last year.

Peter A. Carr, a Justice Department spokesman, wrote in an e-mailed response to questions, “The fact that the process was flawed does not mean that the immigration judges selected through that process are unfit to serve.” * * *

The Justice Department employs more than 200 immigration judges in more than 50 courts around the country. They conduct hearings for noncitizens asking not to be deported, including asylum-seekers who say they fear religious or political persecution.

Although called “judges,” the hearing examiners are not confirmed by the Senate for life; they are covered by federal civil-service laws, which stipulate that they must be hired on the basis of merit under politically neutral criteria. But in early 2004, political appointees took control of hiring the judges away from career professionals and essentially began treating the positions — which carry salaries of $104,300 to $158,500 — as patronage jobs. They screened out liberals and Democrats, while steering openings to White House-vetted “Bush loyalists” and other job-seekers vouched for by Republican political appointees.

According to the story the administration changed back "to a nonpolitical selection method handled by career professionals" in 2007 "after the Civil Division questions the legality of the process. ... But in the interim 31 immigration judges had been appointed by the flawed process." Who are these judges? See this NYT graphic

Posted by Marcia Oddi on August 31, 2008 05:29 PM
Posted to Courts in general

Ind. Courts - "Lake County judges shy away from exclusive contracts in wake of corruption scandals"

Joe Carlson and Marisa Kwiatkowski of the NWI Times have an enterprising report today looking at current counseling services contracts. The long story begins:

Judges in Lake County have shied away from exclusive contracts with counseling providers, a Times review of city, town and county courts' records shows.

For years, corruption in court-ordered counseling services rattled Lake County's justice system.

The issue has dragged through the federal courts, as prosecutors investigated the dealings of former Schererville Town Judge Deborah Riga, counseling provider Nancy Fromm and former power broker Robert Cantrell.

The Times canvassed city, town and Lake County courts to review their policies for ordering defendants to undergo counseling.

Only Gary, Hammond, East Chicago and Whiting city courts have exclusive contracts -- with driving schools to which they steer their traffic defendants. None of the county courts cited exclusive contracts with counseling providers.

Lake County Superior Court Judge Nicholas Schiralli, Lake County Juvenile Court Judge Mary Beth Bonaventura and Lake County Superior Court Judge Gerald Svetanoff did not respond to repeated requests for public information.

Most judges direct defendants to agencies based on location and what the defendant can afford without contracts, The Times found.

Lowell Town Judge Tom Vanes said he tired of watching counseling programs become "cash crops for political insiders." He now uses Alcoholics Anonymous, which is free.

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

Law - "Police Using G.P.S. Units as Evidence in Crimes"

That is the headline to this AP article published today in the NY Times. Some quotes:

Like millions of motorists, Eric Hanson used a Global Positioning System device in his Chevrolet TrailBlazer to find his way around. He probably did not expect that prosecutors would use it, too — to help convict him of killing four family members.

Prosecutors in suburban Chicago analyzed data from the Garmin G.P.S. device to pinpoint where Mr. Hanson had been on the morning after his parents were fatally shot and his sister and brother-in-law bludgeoned to death in 2005. He was convicted of the killings this year and sentenced to death.

Mr. Hanson’s trial was among recent criminal cases in which the authorities used such navigation devices to help establish a defendant’s whereabouts. Experts say such evidence will almost certainly become more common in court as the systems become more affordable and show up in more vehicles. * * *

Critics, however, say the police should be allowed to acquire global positioning data only by getting a warrant. Renée Hutchins, a University of Maryland law professor, wrote an article recently suggesting Global Positioning System data was protected under the Fourth Amendment.

“I think that in the last couple of years,” Ms. Hutchins said, “people are starting to be aware that if they have these units in their car, people can keep track of you. I think it’s a growing public awareness. The problem is that most people feel like, ‘I’m not doing anything wrong, so who cares?’ But I think that’s the wrong way of looking at it.”

Here is a longer version of the story, by Mitch Stacy of the AP, as published in USAToday.

And the ILB was able to locate the law journal article referenced. Written by Renée Hutchins of the U. of Md. School of Law, here is the 58-page article, "Tied Up in Knotts?" GPS and the Fourth Amendment" 55 UCLA Law Review 1 (2007).

Posted by Marcia Oddi on August 31, 2008 09:58 AM
Posted to General Law Related

Saturday, August 30, 2008

Ind. Courts - More on Rockies Express Pipeline suing Indiana counties [Updated]

On Thurs., Aug. 28th the ILB had an entry quoting a story about Rockies Express Pipeline suing Decatur County in federal court.

Yesterday, Rockies Express filed suit in federal court against Franklin County. Here is a copy of the 9-page complaint, plus a copy of the 25-page memorandum in support of motion for TRO, preliminary injunction, and permanent injunction.

[Updated 8/31/08] Rockies Express has filed four condemnation actions in the SD Ind. in 2008: Franklin County, Aug. 29; Decatur County, Aug. 26; 123.62 Acres, June 6; McCarroll, et al, March 14th.

Posted by Marcia Oddi on August 30, 2008 04:52 PM
Posted to Indiana Courts

Ind. Courts - Two stories today on impact of latest report of weighted caseload measures

Matt Thacker of the Jeffersonville/New Albany News & Tribune reports today:

"Clark County has busiest judicial officers in state," a story that begins:

Clark County has the most over-burdened judicial officers in the state, according to a report published this year.

In 1993, the Judicial Administration Committee of the Indiana Judicial Conference began comparing trial court caseloads by weighing the amount of time on average it takes for particular types of case and how many of those cases each court has. They only take into account new case filings.

The utilization number in Clark County is 1.82, meaning the caseload is 82 percent higher than recommended.

Clark County Superior Court No. 2 Judge Cecile Blau said a new magistrate this year has helped tremendously, but she said it is only a “Band-Aid.”

She believes the judicial system has not kept up with the growth in the county.

“Ever since I’ve been on the bench, I’ve seen an increase in cases,” she said.

Blau said all of the judges are doing more to overcome the high caseload.

"Floyd courts second busiest in state," a story that begins:

Floyd County’s courts are the second-busiest in the state, according to a report published this year, but the judges are confident a new court eventually will help ease their burden.

Circuit Court Judge Terrence Cody said he expects to see the change within six months to a year of when the court is added. * * *

Floyd County’s caseloads are 66 percent higher than recommended, the report states. Because criminal cases legally must take precedent, other cases are sometimes delayed longer than some people want.

“It’s to the detriment of civil cases and domestic cases,” Cody said.

Cody believes some of the burden will be lifted after Jan. 1, when a new Superior Court is added. Some ongoing cases may be transferred to the new court, but it will still take time for the new court to get up and running.

Last year, Floyd County had a utilization of 1.59, of 59 percent higher than recommended. It increased by 0.07 this year.

Floyd County Superior Court Judge Susan Orth said that each Wednesday and Thursday, she and Judge Cody hear criminal cases from 8:30 a.m. until 6:30 p.m. She believes part of the heavy docket may be attributed to more people going to trial who would otherwise be receiving other types of care.

“We have gradually more and more mental health facilities closing,” Orth said.

Another factor for the slight increase may be that Children In Need of Services cases in Floyd County already have surpassed last year’s total, Cody said.

While the new court and new judge will help, Floyd County still will need 11⁄2 more judicial positions to be at the recommended number.

Cody said it would be “ideal” to have an additional magistrate, but is grateful for the new court.

Clark County has the most over-burdened judicial officers in the state, according to the report. The caseload in Clark County is 82 percent higher than recommended.

The Division of State Court Administration's Court Management & Statistics webpage is available here and includes a link to the new 2007 Weighted Caseload Measures report.

Posted by Marcia Oddi on August 30, 2008 03:34 PM
Posted to Indiana Courts

Courts - More on: U.S. seeks clarity on muddy Rapanos ruling

Updating this ILB entry from Aug. 26th, Lyle Denniston of SCOTUSBlog writes Aug. 29th in an entry that begins:

The Justice Department on Friday urged the Supreme Court to leave intact a federal appeals court ruling on the scope of the government’s authority to protect wetlands from pollution — in this case, discharges from home septic tanks. Although the Fifth Circuit Court ruling being challenged in the case, Lucas v. U.S. (07-1512), is one of a series of rulngs contributing to confusion over the meaning of the Clean Water Act, the Justice Department prefers to have that issue decided by the Justices in a newly filed government appeal — U.S. v. McWane, Inc.

Posted by Marcia Oddi on August 30, 2008 03:26 PM
Posted to Courts in general

Ind. Courts - "Shelby County court records available via online firm"

From a long report by Bettina Puckett, staff writer for the Shelbyville News:

The computer age has roared into Shelby County in the form of more than 136,000 Shelby County court records that now can be easily accessed and viewed on the Internet via a company called Doxpop.

The recent addition of Shelby County increases the coverage of the Doxpop Court Record Database to half of Indiana's 92 counties, said Raymond Ontko, president of the Richmond-based public records access company.

Shelby County Clerk Carol Stohry worked in cooperation with Doxpop to make the records of the county's three courts - Circuit, Superior I and Superior II - available online 24 hours a day. Shelby County court records on the Doxpop system date back to July 1995.

The Doxpop network provides online access to judicial case-tracking information without visiting or placing a call to the courthouse, Ontko said. Out-of-town attorneys are a good example of people who normally would make a lot of calls to the clerk's office or ask that office to do a lot of faxing, he said. * * *

When Stohry pitched the Doxpop idea to the Shelby County Board of Commissioners back in February, she emphasized that it would not cost the county's taxpayers a dime. Doxpop makes its money by charging customers subscription fees for the online service.

"Development and installation of the Doxpop interface to Shelby County court records have cost Shelby County nothing, and all related expenses have been assumed by Doxpop," Ontko said. In addition, the ongoing operation of the system is supported entirely by voluntary subscription users of the Doxpop system, so taxpayer money is never required for its operation, he said. * * *

Monthly fees range from $25 for individuals tracking a single case or looking for a small number of documents to $450 for organizations having 20 or more users. The company gives complimentary subscriptions to some county offices, including sheriff's departments.

All data transmitted to Doxpop is held in a secure database, completely isolated from the courts' and recorders' own systems. * * *

Doxpop permits subscription users to see the full case details of open/pending and closed/disposed cases dating back to 1995. The chronological case summary, or docket sheet, is the heart of this information. Users may also see the schedule of upcoming hearings in a case, and any attorney can view a personal court calendar showing events in all Doxpop courts.

The Doxpop system enables searching by name, by case number and by any combination of known bits of data about a case party. Advanced features include automatic e-mail notification of any changes on cases of interest. E-mail notice of calendar changes is also easy to set up on the Doxpop system, the company's press release said.

"Doxpop is rapidly becoming a de facto state-wide system for public and professional access to important public information," Ontko said. "We continue to work with all case management system providers to produce a truly statewide system."

Shelby County is the 46th Indiana county to become a part of the Doxpop network. An additional five Indiana county court systems are expected to join the network by the end of 2008.

And, as you can see via the right-hand column of the ILB, Doxpop has been an ILB supporter since April of this year .

Posted by Marcia Oddi on August 30, 2008 03:17 PM
Posted to Indiana Courts

Ind. Courts - Issue of trying youth in juvenile court or as an adult

Jon Murray of the Indianapolis Star takes a long look today at the issue of trying youth in juvenile court or as an adult. He looks at four decisions made by Marion County juvenile court Judge Marilyn Moores, who has "granted one request to waive a murder defendant to adult court and denied three." Details of each case are provided in a side-bar. The main story itself begins:

An 85-year-old woman beaten savagely inside her home. A man and his 18-year-old son shot to death during a robbery. An auto mechanic fatally shot after an argument over repairs.

In each case, a Marion County boy no older than 15 was accused in the crime.
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And in each case, a Marion County judge decided to try the youth in juvenile court rather than the adult system, where penalties are harsher.

The decisions frustrate victims' family members and highlight an issue being debated in juvenile courtrooms here and across the nation: Should young, violent offenders be punished to the greatest extent of the law and locked up in adult prisons -- or should they have the best opportunity for rehabilitation, which means keeping them in the juvenile system and releasing them before they turn 22?

From later in the lengthy story:

The Marion County prosecutor's juvenile division is adjusting to Moores' approach, but officials don't plan to curtail requests to transfer murder cases to the adult system.

Larry Landis, executive director of the Indiana Public Defender Council, said Moores' stance is progressive, in line with that of many juvenile judges who have digested research on young offenders' brain development.

"Adolescent brains look so much different than adult brains," said Bill Glick, executive director of the Indiana Juvenile Justice Task Force. "One of the questions we have is what purpose is served by a person that age spending so much time in the adult system.

"What are we going to get in the end?"

But some argue the answer is simple: justice and deterrence.

In the 1980s and '90s, state lawmakers nationwide eased the way for juveniles who commit violent crimes to be tried as adults.

In Indiana, juvenile judges make the call in a murder case only when the defendant is younger than 16. Older than that, and state law gives prosecutors the authority to file murder charges directly in adult court.

State law also allows the automatic filing of adult charges at age 16 for several violent offenses. But the decision falls to juvenile courts when youths as young as 14 are accused of acts deemed "heinous or aggravated."

Defendants convicted of murder in adult court face a sentencing range of 45 to 65 years. Those handled in the juvenile system must be released from detention facilities by their 22nd birthdays, but many are freed sooner.

"A lot of young killers are more mature than kids 20 years ago," said Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council. "There are other issues that are in the best interest of society. If you commit a crime as a juvenile, there will be consequences."

Posted by Marcia Oddi on August 30, 2008 02:15 PM
Posted to Indiana Courts

Friday, August 29, 2008

Ind. Decisions - Transfer list for week ending August 29, 2008 [Updated]

Here is the Indiana Supreme Court's transfer list for the week ending Aug. 29, 2008.

The list contains two items, dated Aug. 22 and Aug. 27.

Over 4.5 years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
_____________

[Updated immediately] Okay, I was about to push the button to post the above when I received a message from Supreme Court Administration, with a list of transfers granted yesterday, Aug. 28. None of these, of course, is on the Aug. 29 list just put out by the Clerk's Office. Evidently there is no coordination between the two offices. These transfers granted yesterday (along with the transfers denied, which there appears no way of knowing) will not appear on the Clerk's list until next Friday, Sept. 5th. Here is what I have from Supreme Court Administration, I'll fill in details later:

The following cases have been granted transfer:

Brenda Wagner v. Bobbi Yates 22A01-0710-CV-474 - 8/28/08

Kitchin Hospitality v. Indiana Dep't of Revenue 49T10-0604-TA-35 - 8/28/08

Keith Myers v. Leedy Wesley 85A02-0711-CV-999 - 8/28/08

Tony Gray v. State 10A01-0708-CR-356 - 8/28/08

State v. Shannon Hollars 12A02-0711-CR-979 - 8/28/08

Posted by Marcia Oddi on August 29, 2008 02:46 PM
Posted to Indiana Transfer Lists

Ind. Courts - Report on Thursday's meeting of the Commision on Courts

Last Friday, Aug. 22nd, I attended the meeting of the Commission on Courts to testify about the Indiana Code. The agenda for the next meeting, which took place yesterday, Aug. 28th, looked so interesting that I attended again, this time as a reporter for the ILB.

And a wise decision it was. I came back with pages of notes. Over the upcoming weekend I will reporting to you on:

(1) The judiciary's effort to address the complaints of lack of information for Indiana voters who are asked to decide whether to vote "yes" or "no" on the retention of appellate judges. As you will recall, the ILB attempted to address that issue in 2006 with the creation of a special website, Resources for the 2006 Indiana Appellate Judicial Retention Election. This election cycle, the Court has created its own website.

(2) Judicial mandates. There was a long and lively discussion of judicial mandates yesterday, from the point of view of both the judges and the local officials who have budget-making authority. I, for one, learned some things. In my notes I see I jotted down: "More nuanced than I had realized." Watch for it.

(3) Representative Ralph M. Foley's 2006 effort, HB 1419, to change the Judicial Nominating Commission and the way appellate judges are retained. Rep. Foley is urging the consideration of the proposal again in the 2009 session. Looking back to 2006, I see I wrote quite a bit about the proposal at the time and will bring you up to date.

Posted by Marcia Oddi on August 29, 2008 02:14 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 21 NFP)

For publication opinions today (4):

In Countrymark Copperative, Inc.; et al. v. Joseph Hammes, Trustee of Stephen Turner , a 19-page opinion, Judge Brown writes:

Countrymark Cooperative, Inc., (“Countrymark, Inc.”) and Countrymark Cooperative, LLP, (“Countrymark, LLP”) (collectively, “Countrymark”) appeal a judgment in favor of Joseph Hammes, Trustee of Stephen Turner, (“Turner”). Countrymark raises three issues, which we revise and restate as: I. Whether the trial court erred by denying Countrymark’s motion for summary judgment; II. Whether the trial court erred by granting Turner’s motion to amend his complaint to conform to the evidence; and III. Whether the trial court erred by denying Countrymark’s motion for judgment on the evidence pursuant to Ind. Trial Rule 50. We affirm. * * *

I II. The next issue is whether the trial court erred by denying Countrymark’s motion for judgment on the evidence pursuant to Ind. Trial Rule 50. * * *

Turner argues that Countrymark invited any error, and we agree. A party may not take advantage of an error that he commits, invites, or which is the natural consequence of his own neglect or misconduct. Smith v. McLeod Distributing, Inc., 744 N.E.2d 459, 466 (Ind. Ct. App. 2000). Invited error is not subject to review by this court. Id. Countrymark, Inc., did not file an answer to Turner’s complaint, did not assert an affirmative defense that it was not the real party in interest, and did not file a motion to dismiss under Ind. Trial Rule 12(B)(6). In the remainder of the pleadings, Countrymark variously described itself as both Countrymark, Inc., and Countrymark, LLP. Additionally, although evidence was presented at the trial that Countrymark, LLP, owned the property in question, the insurance policy provided in discovery identified Countrymark, Inc., as the policyholder. Under these circumstances, we conclude that Countrymark invited any error, and we decline to find that the trial court erred by denying Countrymark, Inc.’s motion for judgment on the evidence. See, e.g., Smith, 744 N.E.2d at 465 (holding that equity required that Colonial Mat be held liable for the debt at issue in order to protect an innocent third party from unfairness because Colonial Mat and Colonial Industrial d/b/a Colonial Carpets were treated as if they were adjunct corporations, or mere alter egos or instrumentalities of each other that shared a common identity). For the foregoing reasons, we affirm the judgments against Countrymark, LLP, and Countrymark, Inc.

In Ace Bail Bonds, American Bail Bond Co., Bertholet Bail Bond, and Express Bail Bond v. Government Payment Service, Inc., an 8-page opinion, Judge Kirsch writes:

Ace Bail Bonds, American Bail Bond Company, Bertholet Bail Bond, and Express Bail Bond (collectively, the “Bail Agents”) appeal the trial court’s order: (1) granting the release of the Bail Agents’ $2,500 bond to Government Payment Service, Inc. (“GPS”); and (2) awarding GPS attorney fees in the amount of $88,564. On appeal, the Bail Agents raise the following restated issue: whether the trial court erred in awarding costs and attorney fees to GPS pursuant to Indiana Trial Rule 65(C) following the reversal of a permanent injunction against GPS. We vacate and remand. * * *

The Bail Agents contend that this court’s October 11, 2006 opinion, which denied GPS attorney fees, was binding on the trial court. As such, the Bail Agents argue that it was an abuse of discretion for the trial court to grant GPS the $2,500 bond and attorney fees. Citing to the “law of the case” doctrine, the Bail Agents argue that the issue of costs and attorney fees was previously decided against GPS. We disagree.

As a general rule, “the ‘law of the case’ doctrine designates that an appellate court’s determination of a legal issue is binding on both the trial court and the Court of Appeals in any subsequent appeal given the same case and substantially the same facts.” Herrell v. Casey, 609 N.E.2d 1145, 1146 (Ind. Ct. App. 1993) (quoting Cha v. Warnick, 476 N.E.2d 109, 114 (Ind. 1985), cert. denied, 474 U.S. 920, (1985)). In the 2006 decision, our court determined that costs and attorney fees were not appropriate; however, that decision arose from GPS’s counterclaim for malicious prosecution and not a determination under Trial Rule 65(C). * * *

Under Trial Rule 65(C), “no right of action accrues upon an injunction bond until the court has finally decided that the plaintiff was not entitled to the injunction or until something occurs equivalent to such a decision.” Nat’l Sanitary Supply Co. v. Wright, 644 N.E.2d 903, 906 (Ind. Ct. App. 1994), trans. denied. In Palace Pharmacy, Inc. v. Gardner & Guidone, Inc., we held that a defendant is entitled to attorney fees for defending an injunction if he prevails at a later hearing or otherwise ultimately wins the case. 164 Ind. App. 513, 515, 329 N.E.2d 642, 644 (1975). Here, the wrongfulness of the injunction was not “finally or ultimately determined” until April 12, 2007, when the Clerk certified the 2006 decision. Consequently, GPS’s entitlement to attorneys fees and costs pursuant to Trial Rule 65(C) did not arise until that date. Pflederer v. Kesslerwood Lake Ass’n, Inc., 878 N.E.2d 510, 514 (Ind. Ct. App. 2007). The instant case regarding attorney fees and the counterclaim for malicious prosecution are not the same action. Therefore, the “law of the case” doctrine has no application here. * * *

Here, the Bail Agents’ temporary restraining order was only valid from March 27, 2003 through April 7, 2003. Thereafter, the TRO expired. The trial court did not enter a preliminary injunction, but instead, entered a permanent injunction on July 12, 2005, following a trial on the merits. The Bail Agents are liable to GPS only for the damages that occurred as the result on the wrongfully issued TRO. While we agree that the trial court was within its discretion to grant costs and attorney fees pursuant to Trial Rule 65(C), we reverse and remand for the trial court to determine which fees GPS incurred in connection with its defense of the TRO. Vacated and remanded.

In Janella Matthew v. State of Indiana, a 12-page, 2-1 opinion, Judge Robb writes:

We conclude sufficient evidence exists to support Matthew’s conviction. We remand to allow the trial court to correct the abstract of judgment to indicate that it entered judgment as a Class A misdemeanor instead of as a Class D felony. Affirmed and remanded.

RILEY, J. concurs.
BAKER, C.J. dissents with opinion: [which begins] Although I very much agree in principle with the result reached by the majority, I believe that we are compelled by Willis v. State to reverse Matthew’s conviction. 888 N.E.2d 177 (Ind. 2008). [ILB note: Willis v. State is the 4-1 Supreme Court opinion on corporal punishment of children - see list of ILB entries.] * * *

Considering the propriety of the force used by Matthew, the record reveals that the children had been fighting all day and that throughout the day, Matthew had warned J.M. to stop hitting her brother and sister. Thus, as in Willis, Matthew had employed progressive forms of discipline. As for the nature of the punishment inflicted by Matthew, I observe that J.M. received approximately ten blows from Matthew’s hand and a belt. I see no reason to diverge from our Supreme Court’s conclusion in Willis that, in response to a serious offense, there is “nothing particularly degrading about this manner of punishment. Nor, in context, is it readily apparent that the punishment was disproportionate to the offense.” Id. And as in Willis, Matthew’s discipline left bruises and welts, but “[i]n essence it appears from the record that the bruises [and welts] were neither serious nor permanent,” militating “against a conclusion that the punishment was unreasonable.” Id. at 184. Under these circumstances, I do not see how we can avoid the Willis court’s conclusion that Matthew’s actions herein fall within the parental discipline privilege.

In Lloyd N. Huff, et al. v. Maxine Huff, et al. , a 13-page opinion, Judge Brown writes:

Lloyd N. Huff, as trustee of the Elihu W. Huff Trust, Lloyd N. Huff, as beneficiary of the Elihu W. Huff Trust, and Edith Ham, now deceased, by her duly authorized attorney-in-fact, John Ham, as beneficiary of the Elihu W. Huff Trust (collectively “Beneficiaries”), appeal the trial court’s grant of summary judgment to Maxine Huff and the Estate of Wayne Huff (“Wayne’s Estate”). The Beneficiaries raise three issues, which we consolidate and restate as whether the trial court erred by granting in part the motion for summary judgment filed by Maxine and Wayne’s Estate. On cross appeal, Maxine and Wayne’s Estate raise two issues, which we consolidate and restate as whether the Beneficiaries’ remaining claims against Wayne’s Estate are barred by the doctrines of laches and estoppel. We reverse and remand. * * *

We conclude that there remain questions of fact as to whether Wayne properly disclosed the material facts of the conveyance to the Beneficiaries in accordance with his duty as trustee and that, therefore, summary judgment on the expiration of the statute of limitations was inappropriate. * * *

The final issue raised by Maxine and Wayne’s Estate on cross appeal is whether the Beneficiaries’ breach of trust claim against Wayne’s Estate concerning Wayne’s failure to distribute the trust principal after Elihu’s death is barred by the doctrines of laches and estoppel. * * *

Here, Wayne never filed a final account, and the exception to the special pleading requirement for affirmative defenses for trustees does not apply. Accordingly, the failure of Maxine and Wayne’s Estate to specifically plead the affirmative defenses of laches and estoppel waived the defenses. * * *

For the foregoing reasons, we reverse the trial court’s grant in part of the motion for summary judgment filed by Maxine and Wayne’s Estate and remand for proceedings consistent with this opinion.

NFP civil opinions today (3):

Tram Development Group, Inc. v. Joseph and Florence Maginot (NFP) - "Tram appears to have performed its portion of the contract up until the point that it was no longer advantageous. Despite agreeing to purchase all fifty acres, Tram waited until the last minute to inform the Maginots that it was not willing to buy the last portion of the land, which just happens to be the portion that is not suitable for Tram’s purposes. Tram is essentially asking this Court to permit it to keep the best portions of the land, break its original agreement, and pay a nominal amount as compensation to the Maginots. We do not believe such a solution is equitable. Therefore, we conclude that the trial court did not abuse its discretion in ordering specific performance for the outstanding portion of the contract for real estate. Affirmed."

Tony Elliott v. Elayne Elliott (NFP) - "In sum, the trial court’s conclusions that Tony owed Elayne the principal sums of $2,891.04 in seized taxes and $28,065.11 for the Key Bank line of credit are not clearly erroneous. Further, the court did not abuse its discretion in finding Tony to be in indirect contempt of court. Thus, we affirm the trial court’s judgment in all respects."

JPMorgan Chase Bank, N.A, et al v. Rita E. Nicholson f/k/a Rita Campbell, et al (NFP) - "The trial court erred in granting summary judgment to EverHome because there remains a genuine issue of material fact as to whether Chase Bank was required to release its mortgage lien on Nicholson’s property. Accordingly, the judgment of the trial court is reversed, and this case is remanded to the trial court for further proceedings consistent with this opinion. Reversed and remanded."

NFP criminal opinions today (14):

Kail Fortson v. State of Indiana (NFP)

Elliot Carter v. State of Indiana (NFP)

Curtis N. Cooper v. State of Indiana (NFP)

Michael Myers v. State of Indiana (NFP)

T.H. v. State of Indiana (NFP)

John Prosser v. State of Indiana (NFP)

Anthony E. Miller v. State of Indiana (NFP)

Kevin Ingram v. State of Indiana (NFP)

Charles Wagner v. State of Indiana (NFP)

William D. Hammond v. State of Indiana (NFP)

Stephen Clark v. State of Indiana (NFP)

James E. Wilhelm, Jr. v. State of Indiana (NFP)

Earl Eugene Jackson v. State of Indiana (NFP)

Jacque Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on August 29, 2008 01:23 PM
Posted to Ind. App.Ct. Decisions

Ind. Law - The golf cart issue seems to be snowballing

Following up on my post Wed., August 27th, which quoted both the Indiana State Police press release on golf carts on public roads, and a clarification the ILB requested directly from the ISP spokeman, this morning I send an e-mail to the Bureau of Motor Vehicles spokesperson. I wrote:

Dennis, Can you give me the BMV position on issuing registrations for golf carts? The State Police have told me: "The fact still remains no one can operate the golf carts on the roadways legally unless the BMV should decide to let the operators register them. As to that, the BMV would have to answer the question as to if they will or they won’t." [This is a quote from the Aug. 27th ILB entry]

Mr. Rosebrough is out of the office for the weekend, but I did get a direct response from him a few minutes ago:

Indiana does not permit us to license traditional golf carts. They do not meet State or Federal safety requirements. Please call me ... if we need to discuss. Dennis.

Well, this would seem to put lid on it for now. Or maybe not.

Here are some recent stories from Jay County and from Bluffton.

From yesterday's Bluffton News-Banner, some quotes from a long story by Glen Werling:

She’s tired of the calls and the emails.

You can’t ride a golf cart on Bluffton city streets, emphasized Police Chief Tammy Schaffer Tuesday.

“Up until now I think everyone has turned a blind eye, but this is getting to be a real problem,” said Schaffer.

High gas prices have caused some people to seek alternative sources of transportation for short trips and golf carts are one means to putter about town cheaply.

At last week’s city council meeting, city attorney Andrew Carnall responded to a letter from a Bluffton resident seeking city permission to ride her golf cart on the city streets. He explained that because the state does not recognize golf carts as a motor vehicle, they cannot be operated on public thoroughfares.

Since that time, Schaffer has received letters, emails and oral assaults from people who are sure that Carnall is wrong.

Schaffer contacted the Indiana Association of Chiefs of Police and received a response from Government Relations Co-chair Joe Pitcher advising that state law prohibits all-terrain vehicles, golf carts and other such vehicles on public streets unless they and their operators meet all of the requirements of a motor vehicle. * * *

Small communities appear to be the ones where the push is on to pass these kinds of ordinances. In Fishers—which Pitcher admits is no longer a small community—golf carts are permitted on streets where the speed limit is below 25 MPH, during daylight hours and only in residential neighborhoods.

But even in those cases, Pitcher didn’t believe that the ordinances were really legal. “What isn’t well known is that in most of those cities and towns, the state police has been issuing tickets and towing golf carts they find on public streets, notwithstanding local ordinances. Lebanon was issuing golf cart permits to its citizens, but the Indiana State Police came into town and wrote people riding these on the streets UTTs (uniform traffic tickets).

Two stories from Steve Garbacz, reporting for the Jay County Commercial Review. From 8/23/08, a good story headed "Uncertainty abounds about golf carts." Some quotes:

In the Indiana Code, there is no specific section regarding what a golf cart is. Unlike entries for bicycles, mopeds or off-road vehicles (which specifically exclude golf carts in its outline), there is no listing for golf carts and no rules for their use. Therefore, [Indiana State Police 1st Sergeant Al Klingerberg] said, they fall into the general definition of a motor vehicle, which covers standard vehicles such as everyday cars.

Motor vehicles have certain specifications they must meet before they can be registered and licensed with the Bureau of Motor Vehicles. But since golf carts don't meet those requirements and there are no other special procedures for registering them, it's technically illegal to operate them on roadways without that state certification.

"Indiana Law says that if a vehicle has an engine smaller than 50cc and is not designed to go over 25 mph, it is not a vehicle that gets licensed," said Dennis Rosebrough, communications director for the Indiana Burueau of Motor Vehicles. "We do not issue license plates or register golf carts."

Therefore, the state law, by not having a complete entry for golf carts, nulls Portland and other towns' ordinances allowing golf carts to be driven within city limits, Klingerberg said. This interpretation of the law would also contradict the recent intentions of the Jay County Commissioners to legalize golf cart traffic on county roads. * * *

Klingerberg did mention that during special festival events, such as this week's Tri-state Gas Engine and Tractor show, a town ordinance allowing golf cart usage, such as Portland's, would be legal. Festivals and certain scenarios, he said, do allow for a suspension of the rules. But once the festival is over, so is that allowance.

"Ordinances can't do that," he said. "I think state law would always win outside of the allowable festival."

So far it is winning in other municipalities, as golf cart drivers in Boone and Lawrence counties have been slapped with citations for driving without registration.

A court case challenging a golf cart ticket in the town of Lebanon is set for Nov. 13 and could be a step toward a clearer answer in Indiana.

The golf cart issue is one that will need to be resolved at the state level. In order to effectively allow golf cart traffic on roadways, state legislators would have to work to make an addition to the Indiana Code supplying the much-needed definition and regulations for golf carts. Then, local governing bodies could allow carts on the roads if they so choose.

As far as the state legislature adding golf carts to the Indiana Code, the conversation hasn't surfaced in the state legislature yet, but will likely be coming soon.

"I know it's an area that's going to be discussed at the legislature during the next session," said State Rep. Bill Davis, R-Portland. "I can tell you that it's something that people want and I know that local communities are trying to deal with the safety aspects of that. You have to weigh the convenience - and right now with the cost of fuel and things, the economics - versus the safety."

When January rolls around, the state legislature may work to remedy the problem. But as for now, golf carts will continue to roll through the gray area in the state code.

And from 8/25/08, this story. Some quotes:

Attorney Lon Racster presented research to the Jay County Commissioners this morning on the off-road vehicle and golf cart ordinance which has been proposed to allow these vehicles to travel on county roadways.

Off-road vehicles, Racster said, should be no trouble, since the county can state that as long as drivers follow the provisions in the Indiana Code, those vehicles will be allowed to ride the roadways. The commissioners continued to support that an additional requirement should be added that drivers under 18 years of age will need to wear a helmet.

And then the discussion turned to the muddled golf cart debate. * * *

"Subdivisions cannot pass statutes that are less restrictive than the state," Racster said and added, "Golf carts are not something the state has decided to regulate."

Racster informed the commissioners, however, that the power of the home rule, a rule that allows local governments to regulate the unregulated in their jurisdiction, might allow the county to pass such an ordinance since there is no state statute barring it.

"In my opinion, until such a time as (the state) chooses to regulate (golf carts), the home rule says we could," Racster said.

The lack of clarity leaves options open. A golf cart could fall under the defined sections of a low-speed vehicle. Those are defined as four-wheel, electric vehicles that have certain safety implements non-standard on most golf carts such as mirrors, turn signals and a windshield among others. The definition was likely formed to cover electric cars which have started to appear, but could possibly cover a modified golf cart.

There were questions, though, about whether the county would be liable if someone were injured in an accident while on a golf cart. The county could be liable if they authorize the non-state-regulated carts on the roadways.

There are no clear answers with golf carts since the information isn't complete.

"It's just not addressed," Racster said. "The state legislature has got to address the problem."

Posted by Marcia Oddi on August 29, 2008 10:17 AM
Posted to Indiana Law

Environment- "Great Lakes Compact loophole allows bottled water"

Gitte Laasby of the Gary Post-Tribune has a great story today on the Great Lakes Compact. The story begins:

Lawmakers and concerned environmentalists are sounding the alarm on the Great Lakes Compact just weeks before the historic agreement may be ratified by Congress. They say a loophole would allow businesses to sell bottled Great Lakes water -- exactly what the compact was supposed to prevent. * * *

The compact prevents Great Lakes water in containers 5.7 gallons or larger from being exported outside the natural drainage basin. The agreement exempts water used to produce a product that's transferred out of the watershed -- for instance steel or beer. The problem is, the compact defines a product as intended for "intermediate or end-use consumers" and bottled water could fall under that definition, [U.S. Rep. Dennis] Kucinich said.

Work on the compact intensified after public outrage in 1998 when a Canadian company wanted to sell in Asia the equivalent of 50 tankers per year of Lake Superior water.

"Here we are, 10 years after, with a compact that will allow diversion of water. It significantly limits pipelines and tanker trucks and freighters full of water ... (but) they're allowed to leave the Great Lakes with containers full of water," said Dave Dempsey, spokesman for Conservation Minnesota. "The Great Lakes don't know the difference."

Kucinich, Rep. Bart Stupak, D-Mich., and some environmentalists want Congress to close the loopholes by adding language and clarifying that the lakes are public property and not for private profit. That could be done without sending the compact back to the states, said Jim Olson, an environmental law attorney.

The P-T story includes a link to the "compact", but it is to the long-time "Great Lakes Basin Compact," NOT the now before Congress "Great Lakes Compact."

More about the possible loophole on p. 2 of this Aug. 26th story by Dave Dempsey himself in Alternet. A quote:

What gives critics concerns are two interlocking provisions of the compact that they say open the gates to large-volume exports of water in packages like bottles. First, the compact defines "product" to include that which is produced "by mechanical or human effort" and intended for "intermediate or end users." Anything meeting this definition -- including, presumably, water packaged in bottles -- is exempt from the export ban. A second clause holds that water exported in containers under 5.7 gallons (20 liters) or less in volume is not treated as a diversion, although individual states can treat such proposals more stringently if they choose.

The result, charge the critics, is a policy that endorses withdrawal and packaging of enormous volumes of Great Lakes water in these containers. Wenonah Hauter, executive director of Food and Water Watch, says this "establishes a precedent that water can be grabbed by profit-hungry corporations who want to claim it is a product not subject to the compact. This undermines the very purpose of the compact and creates a dangerous precedent for exporting water in the U.S., in this instance from the largest body of freshwater in North America."

In other words, an agreement born in 1998 because of outrage about the sale of Lake Superior water as a product may allow the sale of all Great Lakes Basin water as a product in containers.

Where is this in the Compact? Here is the Great Lakes Compact as passed by the 2008 Indiana General Assembly - SEA 45. See at p. 28: Section 4.12 - Applicability, item 10, "bulk water transfer." See at p. 41: Sec. 13 - definition of "product" and exception.

[More] Re bottled water, the ILB is reminded of this Oct. 22, 2007 entry, headed "Canadian company mining Indiana aquifer."

Posted by Marcia Oddi on August 29, 2008 08:28 AM
Posted to Environment

Environment - More on the move to wind power - things to watch for

Recently the ILB posted an entry headed "Porter County braces for future in wind power" (8/25/08) and another headed "In Rural New York, Windmills Can Bring Whiff of Corruption" (8/19/08).

Thursday the NY Times had another interesting wind power story, this one headed "Wind Energy Bumps Into Power Grid’s Limits ." Some quotes from the lengthy report by Matthew L. Wald:

When the builders of the Maple Ridge Wind farm spent $320 million to put nearly 200 wind turbines in upstate New York, the idea was to get paid for producing electricity. But at times, regional electric lines have been so congested that Maple Ridge has been forced to shut down even with a brisk wind blowing.

That is a symptom of a broad national problem. Expansive dreams about renewable energy, like Al Gore’s hope of replacing all fossil fuels in a decade, are bumping up against the reality of a power grid that cannot handle the new demands.

The dirty secret of clean energy is that while generating it is getting easier, moving it to market is not.

The grid today, according to experts, is a system conceived 100 years ago to let utilities prop each other up, reducing blackouts and sharing power in small regions. It resembles a network of streets, avenues and country roads. * * *

Politicians in Washington have long known about the grid’s limitations but have made scant headway in solving them. They are reluctant to trample the prerogatives of state governments, which have traditionally exercised authority over the grid and have little incentive to push improvements that would benefit neighboring states.

In Texas, T. Boone Pickens, the oilman building the world’s largest wind farm, plans to tackle the grid problem by using a right of way he is developing for water pipelines for a 250-mile transmission line from the Panhandle to the Dallas market. He has testified in Congress that Texas policy is especially favorable for such a project and that other wind developers cannot be expected to match his efforts.

“If you want to do it on a national scale, where the transmission line distances will be much longer, and utility regulations are different, Congress must act,” he said on Capitol Hill. * * *

The cost would be high, $60 billion or more, but in theory could be spread across many years and tens of millions of electrical customers. However, in most states, rules used by public service commissions to evaluate transmission investments discourage multistate projects of this sort. In some states with low electric rates, elected officials fear that new lines will simply export their cheap power and drive rates up.

Without a clear way of recovering the costs and earning a profit, and with little leadership on the issue from the federal government, no company or organization has offered to fight the political battles necessary to get such a transmission backbone built. * * *

Wind advocates say that just two of the windiest states, North Dakota and South Dakota, could in principle generate half the nation’s electricity from turbines. But the way the national grid is configured, half the country would have to move to the Dakotas in order to use the power.

“We still have a third-world grid,” [Bill] Richardson said, repeating a comment he has made several times. “With the federal government not investing, not setting good regulatory mechanisms, and basically taking a back seat on everything except drilling and fossil fuels, the grid has not been modernized, especially for wind energy.”

Posted by Marcia Oddi on August 29, 2008 07:24 AM
Posted to Environment

Ind. Decisions - One tax court opinion Aug. 28

Brambles Industries v. Ind. Dept. Revenue is a sales tax case, re a sale for resale exemption on leased pallets.

Posted by Marcia Oddi on August 29, 2008 06:14 AM
Posted to Ind. Tax Ct. Decisions

Thursday, August 28, 2008

Ind. Decisions - 7th Circuit posts one Indiana decision today

In Ben-Yisrayl v. Buss (ND Ind., Judge Sharp), a 26-page opinion, Judge Bauer writes:

Obadyah Ben-Yisrayl, formerly known as Christopher Peterson, was convicted of two counts of murder by an Indiana jury. After extensive proceedings through the Indiana and federal courts, he was ultimately sentenced to two consecutive sixty-year terms of imprisonment. He filed a petition for a writ of habeas corpus, claiming various constitutional violations. The district court denied the petition in part and granted the petition in part. We reverse the district court’s grant of the petition and affirm the denial. * * *
We are bound by a state court’s interpretations of state law. See, e.g., Wainwright v. Goode, 464 U.S. 78, 84, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983). The Indiana Court of Appeals properly followed the dictates of the Indiana Code and the Indiana Supreme Court in upholding Ben- Yisrayl’s sentence; and in making this determination, the court did not run afoul of Supreme Court precedent. Habeas relief should not have been granted.

III. CONCLUSION
Accordingly, we AFFIRM the district court’s decision to deny habeas relief, and REVERSE the district court’s limited grant of habeas relief with respect to Ben- Yisrayl’s consecutive sentences.

Posted by Marcia Oddi on August 28, 2008 03:47 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In H.M. v. State of Indiana , an 8-page opinion, Judge Vaidik writes:

After the juvenile court issued true findings that H.M. is a juvenile delinquent for committing offenses that would be Class D felony criminal confinement, Class D felony attempted theft, and Class A misdemeanor battery if committed by an adult, H.M. appeals. Specifically, she argues that her adjudications for attempted theft and battery constitute double jeopardy. Concluding that double jeopardy principles apply to juvenile delinquency proceedings where multiple true findings result in a single delinquency adjudication and that separate evidence supports the battery finding that was not used to support the attempted theft finding, we affirm.

NFP civil opinions today (1):

James D. Victery v. Carol D. Victery (NFP) - In a 30-page opinion in an appeal from a final decree of dissolution, the COA affirms the lower court.

NFP criminal opinions today (4):

Frank Castillo v. State of Indiana (NFP)

John Dean Jr. v. State of Indiana (NFP)

Thomas L. Baker v. State of Indiana (NFP)

Jeffrey Miller v. State of Indiana (NFP)

Posted by Marcia Oddi on August 28, 2008 12:03 PM
Posted to

Ind. Law - Yet another confusing story about the legality of golf carts of public streets and roads

Updating yesterday's ILB entry, here is a story by Katie Shane at WabashValley.com. Some quotes:

By the look of it Gene Deckard is ready for a round of golf.

But if you look closer Gene is also ready for fishing and maybe a trip to the store.

"It's good to go to the grocery store just to go any place in this town," he said.

Gene isn't alone; many residents of Sullivan County are using golf carts instead of cars and trucks to get around.

"It's easier and affordable and a means of transportation and popular here and i think because of the economy related to gasoline they are here to stay," said Sullivan Mayor Scott Biddle.

But while the popularity of golf carts in Sullivan is speeding along Indiana State Police say they want to put on the brakes.

"Technically if you are operating a golf cart for any reason on a public roadway in Indiana you are violating state law," said Indiana State Police Sgt. Joe Watts. "I think there is an illusion for some golf cart owners that since the city has passed an ordinance to allow then to use it on a city street that they can use it but that they don't know is that city and county ordinances don't supersede state law."

Posted by Marcia Oddi on August 28, 2008 10:31 AM
Posted to Indiana Law

Ind. Courts - Yet again on "Landowner calls move by pipeline company as intimidation"

Updating this June 11th ILB entry (see all ILB entries on "pipeline" here), Jason Thomas of the Indianapolis Star has an interesting report today. Some quotes:

A paragraph in a Decatur County zoning ordinance has led the developers of a multistate natural gas pipeline to file a lawsuit in federal court.

Rockies Express Pipeline LLC filed the lawsuit Tuesday in U.S. District Court in Indianapolis, seeking a temporary restraining order against the Decatur County Commissioners and the county Plan Commission.

At issue is a 2007 amendment to the Decatur County zoning ordinance that requires a 6-inch or larger gas line to maintain a 500-foot setback from any structure that is not receiving service from the line.

Rockies Express has been awarded federal approval to build the eastern leg of a 1,600-mile pipeline from Colorado to Ohio. The eastern leg, called Rockies Express-East, will go through nine Indiana counties, including Decatur, as it stretches from Missouri to Ohio.

Because the pipeline is 42 inches in diameter, it would be subject to the Decatur County ordinance.

But Rockies Express argues that the construction of an interstate natural gas pipeline is regulated by the Federal Energy Regulatory Commission through the federal Natural Gas Act, which pre-empts any county ordinance.

"Enforcement of the ordinance . . . constitutes an illegal attempt to regulate facilities used for transportation of natural gas in interstate commerce," the lawsuit states. The suit also states "REX will suffer irreparable harm" if the county enforces the ordinance.

Pipeline officials say the lawsuit is merely formalizing an informal agreement with county officials that the county would not enforce its ordinance.

Brian Keith, president of the Decatur County Plan Commission, said Rockies Express told county officials in a letter a few months ago that it did not have to abide by the ordinance because the pipeline is a federal project.

"This just takes me completely by surprise," he said of the lawsuit, adding he thought it was merely a formality.

In addition to the injunction, the pipeline also is seeking damages, attorney fees and court costs.

Posted by Marcia Oddi on August 28, 2008 10:22 AM
Posted to Indiana Courts

Ind. Decisions - More on: Terre Haute paper loses $1.5 million defamation suit

Updating this ILB entry from July 25th, the Tribune-Star reports today under the headline "Tribune-Star launches appeal of libel verdict," that:

The Tribune-Star has asked the judge who presided over the libel trial against the paper to set aside the $1.5 million jury verdict because it contradicts the state and federal constitutional rights of the press to report citizen allegations against public officials.

The 39-page brief was submitted last week to Magistrate Ann Smith Mischler in a defamation case brought against the paper by Jeff Maynard, a Clay County law enforcement officer. The brief also asked that if the verdict was not overturned, the judge should reduce the jury’s award of $500,000 in compensatory and $1 million in punitive damages, describing both as “excessive” and “outrageous” awards that would deter free speech.

The long story includes links to the Motion to Correct Errors and the Brief Supporting the Motion.

Posted by Marcia Oddi on August 28, 2008 10:16 AM
Posted to Ind. Trial Ct. Decisions

Environment - More on "Plans nixed for BP asphalt plant"

Following up on this story yesterday broken by the Gary Post-Tribune, Christine Kraly of the NWI Times reports today:

HAMMOND | The BP refinery in Whiting has withdrawn its plans to build a portion of its $3.8 billion expansion in the city of Hammond.

BP officials sent a letter to the city officially withdrawing the company's request last week, BP spokesman Tom Keilman said Wednesday. * * *

No BP officials attended the city's Board of Zoning Appeals meeting at which attorneys for the firm offered a one-sentence withdrawal of the permit requests needed to build the facility.

City environmental regulators appeared ready to approve the plan in March when they issued a 96-page report outlining several conditions through which BP could earn a favorable recommendation from the zoning board.

The report sparked a request by BP to postpone any decision on the asphalt center plan -- the seventh such delay since the project was first brought to city officials in October 2006.

"We were just doing our job," Ronald Novak, executive director of the Hammond Department of Environmental Management, said Wednesday night. "Which was dealing with issues brought to our attention by the public."

Posted by Marcia Oddi on August 28, 2008 10:10 AM
Posted to Environment

Environment - Different takes on water pollution antidegradation rule progress

Patrick Guinance writes today in the NWI Times under the headline "State sees progress on water pollution rule." Some quotes:

INDIANAPOLIS | A critical water quality rule designed to head off controversies like the one that dogged BP's Whiting Refinery expansion last summer should be in place by this time next year, Indiana's top environmental regulator said Wednesday.

Indiana Department of Environmental Management officials told a legislative committee that study groups are sorting through a half-dozen issues crucial to crafting a new antidegradation policy. The rule would spell out the circumstance in which the state could allow increased pollution discharges into Lake Michigan and other "outstanding state resource waters."

"I think we are on our way to getting that type of document in place," said Rae Schnapp, water policy director for the Hoosier Environmental Council.

IDEM Commissioner Thomas Easterly said if the committees of business, environmental and municipal leaders remain on track, a draft rule should be ready by year's end, and a final policy could be adopted by mid-2009.

"State's water-quality revisions hit snags" is the headline to the AP report by Rick Callahan that begins:

INDIANAPOLIS -- Revised water quality rules intended to protect Indiana's waters from pollution are taking longer than expected to draft and likely won't be finalized until mid-2009, the state's top environmental official said yesterday.

Thomas Easterly, the commissioner of the Indiana Department of Environmental Management, said in March that he hoped the new water quality rules could be in place by year's end.

But Easterly said yesterday that it has proven difficult for representatives of industry, municipalities and environmental groups to agree on the wording of the new so-called "antidegradation" rules.

His agency will use those rules as a guide when it decides whether to approve wastewater permits for new or expanded industrial operations or to require companies to take greater steps to reduce their pollution discharges.

Easterly said he hopes the new rules' wording is complete by the end of the year, followed by final approval by mid-2009 by the state's Water Pollution Control Board.

"By the end of this year we should know what everybody thinks the rule will say. I'm sure there'll still be discussions, but it should be relatively smooth after that," he said after speaking to a panel of lawmakers, other government officials and environmental stakeholders.

Posted by Marcia Oddi on August 28, 2008 10:00 AM
Posted to Environment

Ind. Law - More on: AG announces filing suit to stop illegal fax blaster

Recall this ILB entry from August 19th, where the AG announced he was filing suit "seeking more than $1.5 million in civil damages from a New Jersey-based company accused of breaking Indiana’s Do Not Fax law."

Here is a story published yesterday in NJ Biz ("All business, all New Jersey") that reports:

An Englishtown company's effort to generate mortgage leads was a bit too ambitious, according to a lawsuit filed by the Indiana state attorney general's office against the firm.

EZ Precious Metals Group Inc., which does business as EZPMG and advertises itself as a "lead generation specialist," violated Indiana’s law against sending unsolicited faxes when it sent more than 1,000 faxes to Indiana residents advertising mortgage services, the state's Attorney General Steve Carter said in an announcement. His office is awaiting a response from the company, a Carter spokeswoman told NJBIZ today.

The lawsuit, which was announced Aug. 18, was filed in Indiana’s St. Joseph County Court. It asks the court to halt EZPMG’s faxing activities in the state, and seeks civil penalties of up to $1,500 per violation against the company and its president, Kenneth B. Elias. The suit also seeks $10,000 for the company’s alleged failure to obtain a certificate of authority from Indiana to do business within the state. EZPMG did not return a reporter’s call seeking comment.

"For each fax brought to our attention, it is likely there were hundreds more that were unreported and caused headaches for people across the state,” Carter said on Aug. 18 in an Indiana state news release. “We have heard from citizens in 51 counties who were supplementing the advertising costs of this East Coast company thousands of miles away. One person in Pulaski County received as many as 200 faxes alone.”

The company had previously been sued by at least two clients in other states for similar alleged violations. At least one of those suits was dismissed.

Posted by Marcia Oddi on August 28, 2008 09:54 AM
Posted to Indiana Law

Courts - More on: "Bankruptcy Filings Near Million Mark for 12-Month Period Ending June 30, 2008"

Supplementing this ILB entry yesterday is a story today in the Indianapolis Star, reported by John Russell and Ted Evanoff, that has an Indiana focus. Headed "Bankruptcy filings are soaring in Indiana: As bankruptcies rise, Indiana ranks 5th on a per-capita basis for all types of filings", it begins:

Bankruptcy filings in Indiana have soared 26.5 percent, the latest sign that the economy is slowing down and taking a toll on businesses and households.

The Hoosier state ranked second nationally for business filings per 1,000 residents, behind only Michigan, which has been hurt by a shift in auto manufacturing from large cars and trucks to more fuel-efficient vehicles.

For individual filings in the 12 months that ended June 30, Indiana ranked eighth nationally per capita, behind first-place Tennessee.

For bankruptcy filings of all types, Indiana ranked fifth nationally per capita, behind Tennessee, Georgia, Alabama and Nevada.

Posted by Marcia Oddi on August 28, 2008 09:50 AM
Posted to Indiana Courts

Ind. Courts - "Judge Wayne Lennington could face criminal charges"

The ILB has had a number of earlier entries about former Delaware Circuit Court 5 Judge Wayne Lennington. Today the Muncie Star-Press has a story headlined "Judge Wayne Lennington could face criminal charges." Reporter Rick Yencer writes in a story that begins:

MUNCIE -- Former Delaware Circuit Court 5 Judge Wayne Lennington now faces a special prosecutor who will decide whether he committed a crime or misconduct.

Indiana General Attorney Steve Carter and Delaware County Prosecutor Mark McKinney sought a special prosecutor earlier this month in the investigation of Lennington, who resigned from the bench last May after acknowledging he was being investigated for financial interests in tax sale properties he judged.

Former Adams County Prosecutor Daniel J. Sigler of Columbia City was appointed by Delaware Circuit Court 1 Judge Marianne Vorhees recently, based on the petition indicating that a joint task force formed by McKinney, Carter and the Indiana State Police was investigating Lennington.

Carter and McKinney would not comment about allegations against the 78-year-old former judge, although McKinney, who faces his own misconduct investigation by the Indiana Supreme Court Disciplinary Commission, felt it was important to get a special prosecutor due to the nature of investigation, which he would not specify and only acknowledged this week, months after it began. It was the first time Carter and McKinney have admitted a criminal investigation existed after going to court to get a special prosecutor.

Posted by Marcia Oddi on August 28, 2008 09:29 AM
Posted to Indiana Courts

Wednesday, August 27, 2008

Ind. Law - More on: State Police issue golf carts press release [Updated with answer from ISP]

The ILB posted the Indiana State Police press release yesterday and thought it was a clear statement of the ISP's interpretation of what is the law is regarding driving golf carts on public roads.

The interpretation turns on this paragraph from the ISP release:

What does all this mean? A golf cart can be lawfully operated on public streets and/or highways if they can be properly registered and plated with the BMV. The BMV will not register a golf cart because it does not meet the safety and equipment standards for motor vehicles that are to be driven on highways.

The ILB read this to mean that the BMV will not register golf carts because the carts don't meet the standards. So the carts don't have plates, and the ISP tickets them.

But several papers are reporting it differently, apparently reading "because" as "if." From Q-100 News:

Indiana State Police are saying if a golf cart has all the proper safety and signal equipment like that of any other any other registered motor vehicle, the BMV can register them. A release by the Indiana State Police say there is nothing in the Indiana Code prohibiting golf carts from being registered at the Bureau of Motor Vehicles. The Indiana Code says golf carts, being self-propelled, are technically defined as motor vehicles and under the jurisdiction of the BMV.

From WBIW News:

ISP: Golf Carts Can Be Registered At BMV

Last updated on Wednesday, August 27, 2008

(UNDATED) - In an unusual turn of events in the debate over golf carts on public roadways, Indiana State Police say there may be a way to drive them currently.

A release by the Indiana State Police say there is nothing in the Indiana Code prohibiting golf carts from being registered at the Bureau of Motor Vehicles, contrary to what was previously thought.

The Indiana Code says golf carts, being self-propelled, are technically defined as motor vehicles and under the jurisdiction of the BMV.

If a golf cart has all the proper safety and signal equipment of any other motor vehicle, the Indiana State Police say the BMV can register it and issue tags, but they won't register it if it doesn't meet requirements.

The ILB has sent a message to Sgt. Anthony Emery, Public Information Office, ISP Indianapolis District, asking for clarification of the ISP position. Yes, ironically, we are parsing the press release, rather than the statutes.

[Updated at 4:17 pm] Sgt. Emery has quickly responded to my message. He writes:

Marcia,

A golf cart can be lawfully operated on public streets and/or highways if they can be properly registered and plated with the BMV. The BMV has the final say as to what they will register and what they will not. If someone had a golf cart that met all the safety standards/equipment and the driver of the golf cart had a valid driver’s license and insurance on the cart, then someone could be legal to the letter of the law. However, the law also states that the BMV has the supreme authority in determining what they will and what they won’t register and plate. It comes down to the fact that a golf cart cannot be operated on roadways legally because they meet the criteria requiring registration and license plate. The BMV could decide to approve a golf cart for registration and plates but are not likely to do so.

Attorneys throughout the state may have varying opinions in this matter. The legal staff for the Indiana State Police has determined that we will continue to take enforcement action for violations relating to the golf carts without the registrations.

I hope this clears up this matter for you. The fact still remains no one can operate the golf carts on the roadways legally unless the BMV should decide to let the operators register them. As to that, the BMV would have to answer the question as to if they will or they won’t.

Let me know if I can be of further assistance to you in this matter. Thanks.

Posted by Marcia Oddi on August 27, 2008 03:41 PM
Posted to Indiana Government | Indiana Law

Courts - Big county courthouse is a hub for local business

ABA News today highlights an interesting story that appeared last Friday, Aug. 22nd in the Columbus Ohio Business First publication. Written by Kevin Kemper and headed "Downtown court complex economic stimulus to many an entrepreneur," the report begins:

It’s almost a small city. A micro economy that feeds dozens of businesses and vendors.

One of the busiest courts in the state, the Franklin County Courthouse complex is a three-building spread that employs an estimated 3,350 people while annually welcoming more than one million people through its doors.

Located at 369, 373 and 375 S. High Street in downtown Columbus, the courthouse and its employees are responsible for not only the administration of justice in Franklin County, but also the well-being of dozens of area businesses that supply the complex and its employees with food, documents and a variety of services.

And when the county’s new courthouse opens just north of the existing complex on High Street, these businesses expect they will continue to act as satellites in the courthouse’s economic orbit.

The story then goes on to highlight bail bond companies, courier services, title searchers, restaurants, and concludes:

Even the city of Columbus makes money off the courthouse.

The roughly 60 parking meters that surround the courthouse brought in $123,690.04 in 2007.

“The meters around the courthouse are some of the busiest (in the city) and in terms of finances, some of the most lucrative,” said Mary Carran Webster, assistant director for the city’s Department of Public Service.

Posted by Marcia Oddi on August 27, 2008 01:33 PM
Posted to Courts in general

Courts - "Bankruptcy Filings Near Million Mark for 12-Month Period Ending June 30, 2008"

Here is the news release from US Courts on the most recently compiled bankruptcy statistics. It begins:

August 27, 2008 — In the 12-month period ending June 30, 2008, there were 967,831 bankruptcy cases filed, according to statistics released today by the Administrative Office of the U.S. Courts. That is a 28.9 percent increase compared to filings for the 12-month period ending June 30, 2007, when cases totaled 751,056. Historic data on bankruptcy filings is available on the Judiciary's website under Bankruptcy Statistics.

Additional statistics released today include business and non-business filings for the 12-month period ending June 30, 2008 (Table F-2, 12-month); a comparison of June 2007 and 2008 filings (Table F), 3rd quarter filings (Table F-2, 3-month); monthly filings for the 12-month period ending June 30, 2008 (Table F-2, Monthly); and filings per capita.

Posted by Marcia Oddi on August 27, 2008 01:29 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In Grover Fitzgerald v. U.S. Steel, a 13-page opinion, Judge Vaidik writes:

Grover Fitzgerald appeals from the Worker’s Compensation Board’s (“Board”) dismissal of his application for adjustment of claim. Concluding that Fitzgerald’s application is time-barred under Indiana Code § 22-3-3-27 (1998), that the reimbursed wages he received from U.S. Steel (“USS”) do not constitute “compensation,” that the date of maximum medical improvement or the date his permanent partial impairment rating was issued is not the starting date for calculating the statute of limitations under the facts of this case, that USS did not make fraudulent misrepresentations to Fitzgerald, and that USS did not breach any legal duties owed to him, we affirm.

In Kempf Contracting and Design, Inc. v. Cynthia Holland-Tucker, an 11-page opinion, Judge Kirsch writes:

Kempf Contracting and Design, Inc. (“Kempf”) appeals the judgment, after a jury trial, in favor of Cynthia Holland-Tucker (“Tucker”) in her action against Kempf for negligence. Kempf raises several issues, of which we find the following dispositive: whether the trial court erred when it entered judgment on a second verdict reached by the jury, where, after an initial verdict was reached, the trial court reconvened the jury, gave them new instructions and verdict forms, and allowed the jury to deliberate a second time. We reverse and remand. * * *

Both parties argue that the trial court erred when it entered judgment on the second verdict by the jury after it realized that the jury had been given an erroneous jury instruction and verdict form and then allowed the jury to re-deliberate after they received a revised jury instruction and verdict form. Kempf contends that it is entitled to a new trial because it believed that the jury did not follow the instruction given by the trial court and issued a verdict that was contrary to the instruction and law of the case. Tucker claims that the original jury verdict pronounced in July 20, 2007 was facially sound and accurate, that the trial court erred when it set aside the original judgment, and that the judgment originally entered should be reinstated. * * *

“From the moment of its official discharge the jury is released from any further obligations or duties in the case” and “may not at any time thereafter be reassembled even on the orders of the judge for the purpose of correcting errors of substance in the verdict or for further deliberation of its verdict.” West v. State, 228 Ind. 431, 438, 92 N.E.2d 852, 855 (1950). When a jury is officially discharged, it becomes functus officio as a jury in that particular case, and anything it does thereafter, even by order of the trial court, is null and void. Id. Based on this, the trial court incorrectly entered judgment after allowing the jury to re-deliberate when it had previously been discharged by the trial court. * * *

Because the jury had ceased to exist as an entity to determine the case when it was discharged, it was not able to render a second verdict. * * *

Therefore, the trial court improperly entered judgment on the jury’s second verdict. We vacate the judgment and remand to the trial court with instructions to declare a mistrial and to order a new trial.

Because it is likely to be raised on retrial, we address the issue of whether the expert testimony was properly admitted. * * *

[W]e conclude that Tucker failed to meet her burden of proving that Tierney’s methodology was scientifically reliable under Indiana Evidence Rule 702(b), and the trial court abused its discretion when it allowed Tierney to testify. Reversed and remanded with instructions.

In Gina Williams v. State of Indiana , an 11-page opinion, Judge Najam writes:

Gina Williams appeals her convictions for Forgery, a Class C felony, and Attempted Theft, as a Class D felony, following a bench trial. Williams raises a single issue for our review, which we restate as the following three issues: 1. Whether Williams’ conviction for attempted theft is barred by Indiana’s prohibitions against double jeopardy. 2. Whether the trial court’s denial of Williams’ motion for involuntary dismissal, pursuant to Indiana Trial Rule 41(B), was clearly erroneous. 3. Whether the State presented sufficient evidence to support Williams’ convictions. We affirm in part and reverse and remand in part. * * *

Williams’ conviction for forgery is supported by sufficient evidence and affirmed. However, because the same evidence was used to convict Williams of both forgery and attempted theft, as a Class D felony, her conviction for attempted theft must be reversed on double jeopardy grounds. Hence, we remand that issue to the trial court with instructions to vacate Williams’ attempted theft conviction.

In Byron Breaston v. State of Indiana , a 20-page opinion, Judge Bradford writes:

Appellant-Defendant Byron Breaston appeals his conviction, following a jury trial, for Theft,1 a Class D felony, and the finding that he was a habitual offender. Breaston raises numerous issues on appeal, which we restate as: (1) whether the trial court erred in denying Breaston‟s request for a mistrial; (2) whether the evidence was sufficient to support the finding that he was a habitual offender; (3) whether the trial court erred in allowing the State to amend the habitual offender enhancement information; (4) whether the sentences resulting from separate findings that one is a habitual offender in separate criminal proceedings may be served consecutively to one another; (5) whether the trial court erred in admitting certain evidence at trial; and (6) whether the trial court erred in denying Breaston‟s motion to dismiss. We affirm.

NFP civil opinions today (2):

In Re: The Marriage of William D. Cronkhite, II v. Tammy Cronkhite (NFP) - "William Cronkhite appeals the trial court’s distribution of marital property in the dissolution of his marriage to Tammy Cronkhite. We affirm. * * *

"It is well settled that we will not consider an appellant’s assertion on appeal when he or she fails to present cogent argument supported by authority and references to the record as required by the rules. Id. If we were to address such arguments, we would be forced to abdicate our role as an impartial tribunal and would instead become an advocate for one of the parties, which we cannot do.

"Moreover, William cannot take refuge in the sanctuary of his amateur status. As we have noted many times before, a litigant who chooses to proceed pro se will be held to the same rules of procedure as trained legal counsel and must be prepared to accept the consequences of his or her action. Accordingly, William’s argument is waived for lack of cogent argument.

Conclusion. Because of the inadequacy of William’s brief, we cannot address the merits of his claim. The issues raised on appeal are waived. We affirm."

Carolyn S. and Richard Kane v. Wibbeler Distributors, Inc. and Jerry Wibbeler (NFP) - "Carolyn S. Kane (“Carolyn”) and her husband, Richard Kane (collectively, “the Kanes”), appeal the trial court’s denial of their motion to correct error after the jury returned a verdict finding that Jerry Wibbeler (“Wibbeler”) was not liable for the damages they allegedly sustained after a van negligently driven by Wibbeler struck the truck driven by Carolyn. We affirm."

NFP criminal opinions today (7):

Antonio Sims v. State of Indiana (NFP)

Willie Anderson v. State of Indiana (NFP)

Martin Estrada a/k/a Martin Pineada Tovar v. State of Indiana (NFP)

Tammy Berry v. State of Indiana (NFP)

Jonathan L. McBride v. State of Indiana (NFP)

Autuan M. Leanyear v. State of Indiana (NFP)

Charles W. Chorpenning v. State of Indiana (NFP)

Posted by Marcia Oddi on August 27, 2008 01:04 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues two today

In Brian Woods v. State of Indiana, a 7-page opinion, Justice Rucker writes:

To reverse a trial court’s decision to exclude evidence, there must have been error by the court that affected the defendant’s substantial rights and the defendant must have made an offer of proof or the evidence must have been clear from the context. The purpose of an offer of proof is to convey the point of the witness’s testimony and provide the trial judge the opportunity to reconsider the evidentiary ruling. Equally important, it preserves the issue for review by the appellate court. [cites omitted]

Neither on direct appeal nor on transfer to this Court does Woods make any attempt to explain why he violated the terms of his probation. More importantly, Woods did not make an offer of proof to the trial court. Generally this failure is fatal to his claim. * * * We affirm the judgment of the trial court.

In Christopher R. Brown, D.D.S., Inc. v. Decatur County Memorial Hospital, a 13-page opinion, Justice Rucker writes:

In this opinion we explore whether the Worker’s Compensation Board may award interest on worker’s compensation benefits including past due medical bills. We conclude that in the absence of express statutory authority it may not do so. * * *

To support his argument for an award of interest, Dr. Brown directs our attention to Indiana statutory and case authority standing for the proposition that once the amount of damage is readily ascertainable as of a particular time a claimant can only be fully compensated by the payment of interest. * * *

Essentially, Indiana’s Worker’s Compensation Act sets forth a comprehensive system for the compensation of injuries arising out of and in the course of employment. As demonstrated by the various approaches taken in other jurisdictions, crafting a rule that allows interest on medical payments or worker’s compensation benefits involves choosing among an array of equally compelling policy considerations. Because the system is uniquely legislative in nature and alters the common law rights and liabilities of both employees and employers, appellate courts should be hesitant to disturb the delicate balance the General Assembly has reached and thus refrain from applying provisions not expressly included in the statutory scheme. * * *

In plain terms, there is nothing in the Act that could be read to authorize an award of interest. If a policy consideration suggests that interest on worker’s compensation awards should be allowed, then the legislature and not the courts should implement such a policy. We conclude the Worker’s Compensation Board properly denied Dr. Brown’s request for interest on unpaid medical bills. * * *

Dr. Brown next contends that any interpretation of the Worker’s Compensation Act that results in the denial of his request for interest on overdue medical bills violates Article I, Section 23 of the Indiana Constitution. * * * In sum, Dr. Brown argues that because the Act requires delinquent payment claims of healthcare providers be submitted to the Board – where no interest is allowed – he is treated differently than healthcare providers who may pursue delinquent payments in court and be awarded interest. * * *

The different treatment accorded Dr. Brown is reasonably related to differences between healthcare providers who provide medical services to patients covered by the Act and those not so covered. As a result Dr. Brown has failed to support his claim that his Equal Privileges rights have been violated.

We affirm the judgment of the Board.

Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Boehm, J., concurs with separate opinion. [which begins] I agree with the majority that Indiana’s Worker’s Compensation Act is silent on the ques-tion of interest for past due compensation benefits and healthcare bills, and that any authorization for interest should come from the General Assembly. I write separately to suggest that the Act already addresses the issue of late payments, and to set out what I see as the practical conse-quences of our decision.

Posted by Marcia Oddi on August 27, 2008 12:26 PM
Posted to Ind. Sup.Ct. Decisions

Environment - "Plans nixed for BP asphalt plant"

A story from the Aug. 5, 2007 NWI Times includes this quote:

Concerns over BP's compliance with city health and safety regulations also led the [Hammond] Board of Zoning Appeals to postpone any approval of a $110 million asphalt production facility planned for North Hammond, which company officials said was the first step in the project to bring Canadian crude oil to its refinery.

From May, 2008:

The proposed asphalt center would be just south of the Lost Marsh Golf Course, and would fill as many as 220 tanker trucks and 80 rail cars per day.

From a May 13, 2008 story in the Gary Post-Tribune:

"We wanted to go with the environmental justice issue since we thought that was completely overlooked in this permit. This permit has been broken down in different sections. This is a major expansion. You spend $3.8 billion and IDEM refers to it as a minor. If you spend that kind of money, it's a major," said Bessie Dent, a Hammond resident and member of the Calumet Project.

If the permit was considered as one rather than three different permits -- for an asphalt plant, a diesel plant and the expansion, it would have been considered a major modification, she said.

Today, at 11:07 am, Gitte Laasby posted this story on the Gary Post-Tribune website:

HAMMOND — BP Whiting has scrapped its plans for an asphalt plant in Hammond.

In a letter to the city of Hammond, the refinery has withdrawn its petition for conditional use and developmental variance for a property at 1304 129th St. across from the Lost Marsh Golf Course.

“At this point, BP has exercised its right to withdraw its petitions that are currently before the Hammond board,” BP spokesman Tom Keilman told the Post-Tribune Wednesday morning.

He said BP is considering whether and where to build another plant.

“We’re currently reviewing our options in terms of the asphalt operations,” he said.

Keilman acknowledged that the city of Hammond had a number of conditions for granting the petition, including requirements to monitor emissions, but he would not comment on whether requirements had anything with BP canceling its plans.

Hammond Mayor Tom McDermott Jr. said he felt he had no choice but to put conditions on granting the request because the asphalt plant would harm the community.

“We didn’t really support it. I support the expansion but the part of moving the asphalt plant to where they wanted in Hammond, we didn’t like it,” McDermott Jr. said. “There was a lot of concern about the health issues. There’s been studies that this can cause cancer clusters in the neighborhood around it. It doesn’t make sense you take that and move it closer to a neighborhood. I didn’t want that to be my legacy if I found out 20 years from now that kids got sick.”

The zoning issue was on the agenda of tonight’s meeting of the Hammond board of zoning appeals.

For more details, read tomorrow’s Post-Tribune.

Posted by Marcia Oddi on August 27, 2008 12:16 PM
Posted to Environment

Ind. Courts - "State supreme court wants documents about McKinney pay"

A story today in the Muncie Star-Press, reported by Rick Yencer, begins:

MUNCIE — The Indiana Supreme Court Disciplinary Commission this week subpoenaed city records documenting payment of attorney fees to Delaware County Prosecutor Mark McKinney for civil forfeiture work.

The Disciplinary Commission is investigating possible misconduct by the prosecutor in regards to his handling of drug forfeiture cases, based on a misconduct complaint filed with the court by Mayor Sharon McShurley.

The records include invoices for payment and checks issued from city funds to McKinney from Jan. 1, 2000, to the present, according to the subpoena issued to City Controller Mary Ann Kratochvil from Donald Lundberg, executive secretary of the Disciplinary Commission.

Kratochvil said that when she became controller in 2006, she questioned the payments McKinney and Deputy Prosecutor Eric Hoffman received from the city.

Posted by Marcia Oddi on August 27, 2008 10:30 AM
Posted to Indiana Courts

Ind. Courts - "Court scuffle puts new alert system to test"

Updating this story from yesterday, Rebecca S. Green of the Fort Wayne Journal Gazette reports today in a story that begins:

Monday’s Courthouse brawl provided one of the most serious tests of a relatively new panic alarm system installed in a number of offices throughout the historic building.

Sheriff’s department Sgt. Brian Sandberg said 64 of the alarms are installed throughout the Allen County Courthouse, with 21 others in a nearby annex, nine in the City-County Building, and 11 in the Bud Meeks Criminal Justice Center.

Three of the alarms near the corridor where the fight occurred were set off Monday morning, and according to department logs, officers responded in less than a minute.

When the alarm is pressed, there is no audible alarm, but county officers in the building receive three radio transmissions telling them the location of the alarm, Sandberg said. Though the alarms are occasionally set off by accident, they are rarely set off on purpose. Monday’s was the most serious occurrence since their installation about a year ago, Sandberg said.

Posted by Marcia Oddi on August 27, 2008 07:56 AM
Posted to Indiana Courts

Tuesday, August 26, 2008

Ind. Law - State Police issue golf carts press release

The Indiana State Police has just issued a press release on golf carts. Here is the whole thing; here are some quotes:

Title 9 of the Indiana Code (I.C.) which regulates “Motor Vehicles” does not specifically ban or restrict the use of golf carts on public roadways and therefore a golf cart could be legally operated on public roadways provided it meets all requirements and restrictions set forth by Indiana Code. I.C. 9-13-2-175 defines a “street” or “highway” as the entire width between the boundary lines of every way publicly maintained when any part of the way is open to the use of the public for purposes of vehicular travel. The term includes an alley in a city or town.

To be lawfully operated upon a public street or highway in Indiana, motor vehicles must be registered and plated with the BMV (see I.C. 9-18-2-29). A golf cart is a motor vehicle as defined by I.C. 9-13-2-105(a) because it is a self propelled vehicle. I.C. 9-13-2-105(a) is a definition statute that excludes certain types of vehicles from the definition of a “motor vehicle.” Golf carts are not specifically excluded from the definition of “motor vehicle” and therefore are included in the definition of a motor vehicle.

In addition, a golf cart would likely be required to display a slow moving vehicle emblem as defined in I.C. 9-21-9 if the golf cart is not capable of being operated at a speed greater than 25 m.p.h. The cart may also be required to be equipped with flashing red or amber lights in further compliance with I.C. 9-21-9. Golf cart operators may even be required to wear safety belts under certain circumstances.

While some municipalities have adopted local ordinances allowing for the operation of golf carts on “city and town” streets, those local ordinances are superseded by state statutes to the extent that such ordinances contradict, duplicate, alter, amend, modify, or extend the subject matter of the applicable statute. Thus, an ordinance does not excuse golf cart operators from liability under state statutes, and state statutes “trump” local ordinances.

What does all this mean? A golf cart can be lawfully operated on public streets and/or highways if they can be properly registered and plated with the BMV. The BMV will not register a golf cart because it does not meet the safety and equipment standards for motor vehicles that are to be driven on highways.

Well, if you've made it this far you see that in the end they tie their hats on the definition of "highway" as including every street and alley, and on the BMV: "The BMV will not register a golf cart because it does not meet the safety and equipment standards for motor vehicles that are to be driven on highways." Where is the law the BMV uses? Presumably it is IC 9-19, Motor Vehicle Equipment. See particularly IC 9-19-1-5:

Sec. 5. Except as otherwise provided in this article, an owner of a vehicle may not cause or knowingly permit to be operated or moved upon a highway in Indiana a vehicle or combination of vehicles that is not constructed or equipped in compliance with this article.

Looking through Title 9, however, I ran across some other interesting laws. For instance, IC 9-21-11, the law relating to bicycles and motorized bicycles. For instance IC 9-21-11-12:

Sec. 12. A motorized bicycle may not be operated under any of the following conditions:
(1) By a person less than fifteen (15) years of age.
(2) By a person who has not obtained an identification card under IC 9-24, a permit under IC 9-24, an operator's license under IC 9-24, a chauffeur's license under IC 9-24, or a public passenger chauffeur's license under IC 9-24.
(3) On an interstate highway or a sidewalk.
(4) At a speed greater than twenty-five (25) miles per hour.

So a kid on a motorized bicycle can ride on a street, and even have a passenger, provided the bike has a second seat, but his grandfather may not do the same in his golf cart.

Back to the State Police bulletin. It concludes with a paragraph that begins:

One might think that police officers should have more pressing traffic enforcement issues that take priority over taking enforcement action against someone driving down a local street on a golf cart.

and ends:

[W]hile the Indiana State Police is not engaged in an active enforcement campaign to target the operation of golf carts on roadways, troopers will not turn a blind eye where violations of this nature are observed in the course of routine patrol.

Posted by Marcia Oddi on August 26, 2008 01:32 PM
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In R.W., Sr. (father) and D.B.W.(mother) v. Marion Co. Dept. of Child Svcs., et al. , an 18-page opinion, Judge Friedlander writes:

Diane B-W. (Mother) and Richard W. (Father) appeal the termination of their parental rights in Marion Superior Court, Juvenile Division, to their respective biological children. They present the following restated issues on appeal: 1. Did the juvenile court commit reversible error when the presiding magistrate failed to sign the final order terminating Mother’s and Father’s parental rights? 2. Did the Marion County Department of Child Services (MCDCS) fail to prove by clear and convincing evidence the statutory elements required for termination of Mother’s and Father’s parental rights? * * *

In sum, we conclude the final termination order was not technically flawed on the basis that it lacked the magistrate’s signature. Additionally, the record reveals the MCDCS proved by clear and convincing evidence all the statutory elements required for the termination of Mother’s and Father’s parental rights to their respective biological children. The judgment terminating parental rights was not clearly erroneous, and therefore is affirmed.

NFP civil opinions today (1):

In Term. of Parent-Child Rel. of V.R. (minor) and Jimmy R. v. Lake Co. Office of Family and Children, et al. (NFP), a 15-page opinion, Judge Vaidik writes:

Jimmy R. (“Father”) appeals the involuntary termination of his parental rights to his daughter, V.R., claiming the Lake County Department of Child Services (“LCDCS”) failed to prove: (1) that the conditions resulting in V.R.’s removal or continued placement outside his care will not be remedied and that continuation of the parent-child relationship poses a threat to V.R.’s well-being and (2) that termination of his parental rights is in V.R.’s best interests. Concluding that the juvenile court’s judgment terminating Father’s parental rights to V.R. is supported by clear and convincing evidence, we affirm.

NFP criminal opinions today (1):

Kevin O. Chevrette v. State of Indiana (NFP)

Posted by Marcia Oddi on August 26, 2008 11:54 AM
Posted to Ind. App.Ct. Decisions

Law - More on: US News Law School ranking system may be changed

If you read the entry earlier today with interest, you may want to check it again -- I've updated it several times now with more information.

Posted by Marcia Oddi on August 26, 2008 11:42 AM
Posted to General Law Related

Courts - "Ever-More-Expensive Court Races Heading Higher "

Three of Indiana's five Supreme Court justices will be on the ballot this fall. But they do not have opponents. Instead, Indiana's justices are appointed by the Governor, from a list of nominees submitted to him by the Judicial Nominating Commission. After an initial two years, and then again every ten years, the names of the justices (should they decide to serve again) appear on the ballot and the voters may vote "Yes" or "No" on the question of whether they should be retained in office. This is the "Missouri Plan" - 16 states use some form of it.

In other states, appellate judges and justices run for office, just an any other candidate. Kathy Barks Hoffman of the AP reported yesterday on the ever-increasing costs of those court races. The report begins:

State courts across the country are caught in a high-stakes, high-priced fight between groups trying to get a handle on large damage awards and others who are concerned consumers and wronged employees are going to be left in the dust.

The struggle is being played out this year in states such as Michigan and Wisconsin, where races for spots on their respective Supreme Courts have drawn millions of dollars in contributions, much of it spent not by the candidates but by business groups, unions and trial lawyers.

"Wisconsin and four other Midwest states ... have become the epicenter of a spreading arms race between corporate interests, trial lawyers, ideological groups and political partisans who are committed to bending judges to their will," said a statement accompanying a report released earlier this year by the Midwest Democracy Network and Justice at Stake Campaign, a Washington-based judicial watchdog group. "It's time for a truce."

Given what's happening as November approaches in many of the 40 contested state Supreme Court races around the country, a truce looks unlikely.

Spending by judicial candidates for the nation's highest state courts races has gone up from $62 million raised between 1993 and 1998 to $165 million between 1999 and 2007, according to the report, raising questions about whether justices can remain impartial when so much money is spent to elect them.

To get around the problem, some states are considering publicly financing judicial races.

See also this ILB entry from Oct. 9, 2006, headed "Big Money and Special Interests Are Warping Judicial Elections."

Posted by Marcia Oddi on August 26, 2008 09:29 AM
Posted to Courts in general | Indiana Courts

Courts - U.S. seeks clarity on muddy Rapanos ruling

SCOTUSBlog's Lyle Denniston has a long entry today that begins:

The U.S. government, arguing that the lower courts have fallen into confusion and disagreement over federal power to protect wetlands, has urged the Supreme Court to make clear what it meant in the “highly fractured” ruling two years ago in Rapanos v. U.S. (04-1034) — a significant decision on the scope of the Clean Water Act.

Here is an ILB entry from Sept. 22, 2006 on a 7th Circuit action on a case out of Wisconsin, U.S. v. Gerke Excavating, which had been remanded to the Circuit Court, post-Raponas.

Posted by Marcia Oddi on August 26, 2008 09:21 AM
Posted to Courts in general

Ind. Courts - More on: "ACLU suit targets state welfare fixes"

This ILB entry from May 20th reported on a suit brought in Marion County by the ACLU.

Today the Indianapolis Star's Tim Evans reports on the filing of a second suit, under the headline: "LaPorte County suit seeks to halt welfare privatization: FSSA privatization effort has led to many losing aid, plaintiffs allege." The story begins:

Claiming Indiana's welfare privatization drive is hurting needy Hoosiers, eight LaPorte County residents who receive assistance through the Family and Social Services Administration are asking a judge to halt its rollout in their part of Northwest Indiana.

The suit seeking to block expansion of the state's $1.2 billion modernization project names Gov. Mitch Daniels, FSSA Secretary Mitch Roob and Zach Main, head of the agency's Division of Family Resources, as defendants.

In paperwork filed Friday, the plaintiffs asked the court to prohibit FSSA from expanding the project to the state's Region 3, which consists of LaPorte, St. Joseph, Lake and 10 other counties in the northwestern part of the state.

LaPorte Circuit Judge Thomas Alevizos has set a hearing for Sept. 2 on their request for a preliminary injunction.

From later in the story:

The LaPorte County suit is the second filed in connection with the FSSA project. In May, the American Civil Liberties Union filed suit in Marion County alleging problems with the project have cost some disabled residents food stamps and other benefits they need to survive.

The new suit contends the modernization rollout in other parts of the state -- which changes the way needy Hoosiers can apply for assistance -- has resulted in thousands losing food stamps, Medicaid or Temporary Assistance to Needy Families benefits at the same time assistance rolls are growing in sections of the state where the old system remains in place.

In particular, the suit notes, the number of applications rejected for failing to cooperate in establishing or verifying income and failing to complete a personal interview increased from 7,162 in May 2006 to 17,919 in May 2008 -- a jump of 150 percent.

The plaintiffs claim that many of the problems and lost benefits stem from changes that replace much of the face-to-face contact with state caseworkers who knew and worked with individual recipients -- the heart of the old system -- with a new intake process that relies heavily on privately run call centers and the Internet.

Posted by Marcia Oddi on August 26, 2008 09:11 AM
Posted to Indiana Courts

Law - US News Law School ranking system may be changed [Updated]

The WSJ reports today, in a front-page story by Amir Efrati headlined "Law School Rankings Reviewed to Deter 'Gaming,'" that:

The most widely watched ranking of U.S. law schools may move to stop an increasingly popular practice: schools gaming the system by channeling lower-scoring applicants into part-time programs that don't count in the rankings.

U.S. News & World Report is "seriously" considering reworking its ranking system to crack down on the practice, says Robert Morse, director of data research at the magazine, who is in charge of its influential list.

Such a move could affect the status of dozens of law schools. It would likely reverse gains recently made by a number of schools that have helped their revenue by increasing their rosters of part-time students with lower entrance-exam scores and grade-point averages, without having to pay a price in the rankings.

In some cases the part-timers' course load is barely less than that of full-timers, and they are able to transfer into the schools' full-time programs in their second year. Statistics about second-year students' pre-law school scores also aren't counted in the rankings.

Counting part-timers would roil the law-school rankings, which have a big impact on where students apply and from where law firms hire. A number of law-school administrators interviewed about the potential change contend it could have another effect: narrowing a traditional pathway to law school for minorities and working professionals. Those groups often perform worse on the important Law School Admission Test, or LSAT, and schools could feel pressure to raise their admission thresholds.

A change in criteria would "catch the outliers but punish part-time programs that have existed forever and aren't doing it to game the system," says Ellen Rutt, an associate law-school dean at the University of Connecticut. If U.S. News makes the move, many schools with part-time programs would have a tough choice: Leave their admission standards for part-timers unchanged, which could hurt their rank, or raise the standards, likely shrinking the programs and cutting revenue.

The story includes a graphic on how some schools' rankings could be affected, but no Indiana law schools are included in the illustration.

[Updated at 11:15 am] A reader writes to point out this paragraph in the story, explaining how these rankings can have a significant impact:

Initially, "the effect of a drop in the rankings is psychological, but it can have real institutional consequences," says Bill Henderson, a law professor at Indiana University-Bloomington who tracks the legal job market. For some schools that fail to effectively manage their U.S. News ranking, the drop could cause a snowball effect over several years in which there is a "falloff in good applicants and eventually a tapering off of employers," he says.

See also this just-posted entry from the WSJ Law Blog. A quote:

These kinds of drops can put the jobs of law school deans in jeopardy. Nancy Rapoport, the former dean of the University of Houston Law Center, resigned in 2006 after the school had fallen from 50th to 70th in the span of a few years. (The school is now ranked 55th; Rapoport has moved on to teach at University of Nevada-Las Vegas.) In the 2009 rankings, Buffalo law school experienced the most precipitous drop in the rankings, from 77 to 100.

A front-page Indianapolis Star story in 2005 (quoted in this April 11, 2005 ILB entry) began:

[T]he latest ranking of the Indiana University School of Law-Indianapolis -- the state's largest of four law schools -- has plummeted from 63rd to a tie for 95th in the U.S. News & World Report graduate school listings.

This entry just posted on the Volokh Conspirary is also worth reading - he discusses "long established part-time evening programs."

More: See Brian Leiter's Law School Reports, here. A quote:

But including part-time students is also going to have pernicious consequences as well, given the way the US News tail wags the legal education dog. For many, probably most, part-time programs serve older, working students, who might not have time for fancy LSAT prep courses, but who bring levels of dedication, seriousness, and pertinent experience that enrich legal education and the legal profession. What a loss it will be if, out of fear of US News, schools start cutting back their part-time programs or rejecting these students whose numerical credentials might impede their crusade for a "higher ranking."

Posted by Marcia Oddi on August 26, 2008 09:03 AM
Posted to General Law Related

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Legal Blawgs Web Archive Collection

Legal Blawgs Web Archive Collection

The Indiana Law Blog

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

Thursday, September 04, 2008

Environment - More on: John Graham to lead IU SPEA

Courts - In question of first impression in the circuits, 8th Circuit holds "Attorneys who provide bankruptcy assistance to assisted persons are debt relief agencies under the Bankruptcy Code"

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

Environment - "Court Tells EPA to Guarantee Kentucky Rules Do Not Allow Significant New Pollution in State’s Waterways"

Ind. Law - More on: "Allen County bill may effectively limit abortion"

Ind. Courts - "St. Joseph County prosecutor's budget targeted"

Ind. Law - "Police to go after unlicensed scooters"

Wednesday, September 03, 2008

Ind. Decisions - Two Indiana decisions today from the 7th Circuit, including one from Circuit Judge Tinder

Ind. Law - Still more on: Indiana building codes, part of the Indiana Administrative Code, are not available online

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

Ind. Decisions - Supreme Court issues opinion on double jeopardy issue

Courts - "Lawyers difficult to obtain in immigration cases"

Ind. Gov't. - "The golden age of Lake County government printing contracts might soon be over"

Ind. Courts - "New judge sought in Valpo hospital lawsuit"

Environment - "Delay of megadairy permits, closure of Brownsville store have commissioners meeting with county attorney today"

Ind. Law - "Allen County bill may effectively limit abortion"

Ind. Gov't. - New coalition pushing for changes in local government

Tuesday, September 02, 2008

Ind. Decisions - Replacement transfer list for week ending August 29, 2008

Ind. Decisions - 7th Circuit posts two additional Indiana decisions today

Ind. Law - More on: Indiana building codes, part of the Indiana Administrative Code, are not available online [Updated]

Courts - "Jury Exemptions for Nursing Mothers"

Ind. Decisions - 7th Circuit issues two Indiana decisions today

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

Ind. Law - "Upon request, the veterinarian shall provide the prescription to the client"

Courts - Practice Pointer: Filing Non-Record Materials before the SCOTUS

Ind. Court - Posey County Circuit Judge James Redwine writes book on 1878 lynchings

Ind. Law - "Golf carts, state police policy collide"

Monday, September 01, 2008

Ind. Courts - Indiana appellate judges create retention website

Courts - "Missouri judges evaluated a new way for retention vote"

Courts - "Report cards on Kansas judges are online"

Ind. Courts - "Lake County civil courts to switch to random filing system"

Ind. Law - Disregarding school bus stop arm is a misdemeanor

Ind. Courts - If approved, new local rule would give co-defendants the same judge

Courts - More on: "Kentucky will retain all court records forever"

Ind. Decisions - Upcoming oral arguments this week

Sunday, August 31, 2008

Courts - Still more on: DOJ moves to improve immigration judges, after months of criticism

Ind. Courts - "Lake County judges shy away from exclusive contracts in wake of corruption scandals"

Law - "Police Using G.P.S. Units as Evidence in Crimes"

Saturday, August 30, 2008

Ind. Courts - More on Rockies Express Pipeline suing Indiana counties [Updated]

Ind. Courts - Two stories today on impact of latest report of weighted caseload measures

Courts - More on: U.S. seeks clarity on muddy Rapanos ruling

Ind. Courts - "Shelby County court records available via online firm"

Ind. Courts - Issue of trying youth in juvenile court or as an adult

Friday, August 29, 2008

Ind. Decisions - Transfer list for week ending August 29, 2008 [Updated]

Ind. Courts - Report on Thursday's meeting of the Commision on Courts

Ind. Decisions - Court of Appeals issues 4 today (and 21 NFP)

Ind. Law - The golf cart issue seems to be snowballing

Environment- "Great Lakes Compact loophole allows bottled water"

Environment - More on the move to wind power - things to watch for

Ind. Decisions - One tax court opinion Aug. 28

Thursday, August 28, 2008

Ind. Decisions - 7th Circuit posts one Indiana decision today

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

Ind. Law - Yet another confusing story about the legality of golf carts of public streets and roads

Ind. Courts - Yet again on "Landowner calls move by pipeline company as intimidation"

Ind. Decisions - More on: Terre Haute paper loses $1.5 million defamation suit

Environment - More on "Plans nixed for BP asphalt plant"

Environment - Different takes on water pollution antidegradation rule progress

Ind. Law - More on: AG announces filing suit to stop illegal fax blaster

Courts - More on: "Bankruptcy Filings Near Million Mark for 12-Month Period Ending June 30, 2008"

Ind. Courts - "Judge Wayne Lennington could face criminal charges"

Wednesday, August 27, 2008

Ind. Law - More on: State Police issue golf carts press release [Updated with answer from ISP]

Courts - Big county courthouse is a hub for local business

Courts - "Bankruptcy Filings Near Million Mark for 12-Month Period Ending June 30, 2008"

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

Ind. Decisions - Supreme Court issues two today

Environment - "Plans nixed for BP asphalt plant"

Ind. Courts - "State supreme court wants documents about McKinney pay"

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