Thursday, October 02, 2008
Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)
For publication opinions today (1):
In Joshua Perez-Grahovac v. State of Indiana , a 13-page opinion on an interlouctory appeal, Judge Barnes writes:
[Issue] Whether collateral estoppel precluded the trial court from denying Perez-Grahovac’s motion to suppress evidence. * * *NFP civil opinions today (3):Perez-Grahovac contends that the trial court erred in denying his motion to suppress evidence. He specifically argues that the State was collaterally estopped from contending that the search of 2213 East Spring Street was proper because the Floyd Superior Court had previously determined in Phillips’ case that the search was improper and that any evidence seized as a result of the search should be suppressed. * * *
Here, Perez-Grahovac has not shown he is entitled to the use of collateral estoppel. The only portions of the record from Phillips’ case that Perez-Grahovac provided to the trial court and to this Court are the CCS and Phillips’ motion to suppress. The CCS reflects that the Floyd Superior Court granted Phillips’ motion to suppress, but because the trial court did not make findings of fact or conclusions of law, this gives us little insight into why the court granted Phillips’ motion. The transcript of the January 5, 2007 suppression hearing in Phillips’ case could have provided some clues as to why the Floyd Superior Court granted Phillips’ motion to suppress, but Perez-Grahovac has failed to provide this. Nor has Perez-Grahovac provided the charging information or any other pleadings or evidence from Phillips’ case. Perez-Grahovac has failed to provide a record from which we can determine what evidence was presented in Phillips’ case. Without this, we cannot determine whether in Phillips’ case the Floyd Superior Court could have based its decision upon an issue or fact other than that which Perez-Grahovac seeks to foreclose from consideration here. The appellant bears the burden “to present a record that is complete with respect to the issues raised on appeal, and this burden includes a duty to ensure that the court has a transcript of the appropriate trial proceedings.” Because Perez-Grahovac has not presented a complete record, he has not shown that the trial court abused its discretion in failing to allow him to invoke the use of collateral estoppel. * * *
Perez-Grahovac has not shown that the trial court abused its discretion in denying his motion to suppress. The trial court’s order denying Perez-Grahovac’s motion to suppress is therefore affirmed.
Term. of Parent-Child Rel. of A.D.W. and A.N.W.; and Leasa W. v. Child Services of Vanderburgh County (NFP) - "Appellant-respondent Leasa Wedding appeals the trial court’s denial of her motion for continuance and motion for parenting services from appellee-petitioner, Department of Child Services of Vanderburgh County (DCS). In addition, Wedding appeals the trial court’s judgment terminating her parental rights with regard to her two children, A.D.W. and A.N.W. Specifically, Wedding argues that the denial of her motions violates the Americans with Disabilities Act1 and that DCS failed to establish the requirements of Indiana Code section 31-35-2-4(b)(2) by clear and convincing evidence as required to terminate her parental rights. Finding no error, we affirm the trial court’s judgment."
Deanne Thompson Stull v. Larry L. Thompson Revocable Trust, Derek Thompson, and Vicki Thompson Craver (NFP) - "There is enough evidence in the record to create a genuine issue of material fact as to whether Derek had a confidential relationship with his father, Larry. Derek lived only eight houses away from Larry. Despite Derek and Vicki being Estate representatives and trustees of the Trust, Larry gave only to Derek the directions of how to handle the Trust assets. In fact, Vicki was not aware that the Trust existed until after Larry’s passing. Based on these facts, the determination of the existence of a confidential relationship between Derek and Larry should be left to the fact finder.
"In addition to this question of fact, the fact finder will be faced with the factual issue of determining the true content of Larry’s directions to Derek and whether Derek agreed to carry them out. Because these genuine issues of material fact exist, summary judgment was not appropriate. We therefore reverse and remand for further proceedings."
In the Matter of T.H., J.H., and J.B. v. Lake Co. Dept. of Child Services (NFP) - "Therefore, we find that the elements necessary to sustain the termination of Mother’s parental rights have been established by clear and convincing evidence."
NFP criminal opinions today (6):
Oswaldo Mendoza v. State of Indiana (NFP)
Dale Beaver v. State of Indiana (NFP)
Victor Jackson v. State of Indiana (NFP)
Yolanda G. Thompson v. State of Indiana (NFP)
Phillip Herron v. State of Indiana (NFP)
Thomas L. Daniels v. State of Indiana (NFP)
Posted by Marcia Oddi on October 2, 2008 01:33 PM
Posted to Ind. App.Ct. Decisions
Ind. Law - "Prof. Amy Applegate honored with 2008 Women in the Law Award"
From an IU release today that begins:
BLOOMINGTON, Ind. -- Amy Applegate, clinical professor and director of the Family and Children Mediation Clinic at the Indiana University School of Law--Bloomington, will be honored today (Oct. 2) with the 2008 Women in the Law Recognition Award.The award is presented by the Indiana State Bar Association to a female attorney in the state who has contributed to the legal profession as a whole or to a particular area of practice.
Posted by Marcia Oddi on October 2, 2008 01:21 PM
Posted to Indiana Law
Courts - "Campaign-finance reform urged for Michigan Supreme Court races"
Lynn Turner reports in the Kalamazoo Gazette:
KALAMAZOO -- More than $20 million has been spent in Michigan Supreme Court races since January 2000, and in some cases it's impossible to tell where the money came from, the executive director of a nonpartisan watchdog organization said Wednesday.The campaign donations raise questions about whether court candidates, once elected, play favorites with large campaign contributors, said Rich Robinson, of the Michigan Campaign Finance Network.
"The current system is an incubator for conflicts of interest," Robinson told about 50 people at Western Michigan University's Little Theater during a session sponsored by the League of Women Voters. * * *
The American Bar Association recommended in 2007 that campaign contributions to judges or justices be considered as grounds for disqualification from handling cases involving the contributors, Robinson said. Although 18 states, including Ohio and Indiana, implemented that rule, Michigan has not, he said.
Posted by Marcia Oddi on October 2, 2008 11:28 AM
Posted to Courts in general | Indiana Courts
Environment - "An Increasingly Environmental Term"
That is the heading of an entry by Jonathan Adler on The Volokh Conspiracy that lists and discusses six grants so far.
Posted by Marcia Oddi on October 2, 2008 11:20 AM
Posted to Environment
Ind. Gov't. - More on: "Leaky roof a catalyst for moldy record books in Boonville"
Updating this ILB entry from Sept. 30th, Lydia X. McCoy has a follow-up today in the Evansville Courier & Press:
BOONVILLE, Ind. — Donning face masks, gloves and protective suits, Warrick County officials spent most of Wednesday going through volumes of moldy county records stored in the former Carquest building just off Boonville Square.(ILB - The last two paragraphs appear to be at odds.)Officials were determining what could be destroyed and what needed to be salvaged.
"Everything that we are getting rid of (Wednesday) is either on computer or is a duplicate of something that is being kept some place else," said Warrick County Clerk Shannon Weisheit. "These are just records that the county has kept for years and years. It would be really expensive to reproduce them and clean them up, and they are of no historical value." * * *
Some of the "finds" of the day included an original plat map for the Rose Hill Cemetery in Newburgh from 1940, the treasurer's records of receipts from 1899 that determined how much taxes were that year and a ledger of receipts also from 1940.
And while the records may have been old, they weren't of historical value — only things the state says must be kept for a certain period of time, county officials have said.
Posted by Marcia Oddi on October 2, 2008 11:04 AM
Posted to Indiana Government
Ind. Decisions - "Courts are tending to side with faculty members who seek unemployment payments when their contracts are terminated through no fault of their own"
The Indiana Supreme Court's June 17th decision in the case of Indiana State University v. William C. LaFief and IDWD (Review Bd.) - see ILB entries here and here, is the subject of a commentary by Nicolas M. Manicone in The Chronicle of Higher Education that begins:
A case that the Indiana Supreme Court recently ruled on dealt with the question of whether a professor whose fixed-term contract expires becomes unemployed on a voluntary or involuntary basis.
Posted by Marcia Oddi on October 2, 2008 10:50 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Courts - "Attorney wants new venues after judge allegedly curses client"
Shawn McGrath of the Anderson Herald Bulletin reports in a story that begins:
An Anderson attorney wants a new venue for five criminal cases after a judge used an expletive to describe one of his clients during a court hearing and purportedly entered into plea negotiations with the defendant without him being present.
Posted by Marcia Oddi on October 2, 2008 10:41 AM
Posted to Indiana Courts
Law - "Registration lawsuits could shape election"
Tim Jones has an interesting story today in the Chicago Tribune that begins:
In a furious, multistate campaign raging far from television cameras and cable TV chatter, scores of lawyers are arguing over the voting rights of perhaps millions of Americans who plan to cast ballots in the presidential election.This is the courtroom campaign beneath the presidential campaign, fought in politically strategic states including Ohio, Florida, Wisconsin and others. The outcome of battles over voter registration, absentee ballots and the integrity of state voting lists could prove to be decisive in states where the margin of victory is expected to be slim.
"Voter registration is likely to be the issue of the 2008 election season," said Daniel Tokaji, an election law specialist at Ohio State University Moritz College of Law.
The legal battles come as millions of previously disinterested Americans, most of them Democrats energized by the primary contest between Sens. Barack Obama and Hillary Clinton, have registered to vote in November's election. With Democrats emboldened by large gains in voter registration and Republicans relying on an effective get-out-the-vote machine, the election could turn on pre-election arguments over who is allowed to vote.
Some of the current clashes are partisan, but many of them involve politically unaffiliated groups that have long been active in voting rights debates—the American Civil Liberties Union, the League of Women Voters and the Brennan Center for Justice at New York University School of Law.
Posted by Marcia Oddi on October 2, 2008 09:26 AM
Posted to General Law Related
Ind. Courts - Information about appellate jurists on the November ballot
At the Commission on Courts meeting August 28th, as noted in this Sept. 1st ILB entry:
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.This website is now available, although apparently has not yet been announced. Access it here. I expect the announcement will come shortly, as absentee voting begins Monday, Oct. 6th.
Here is the website the ILB created in 2006 to provided needed information on the judges running for retention in the 2006 election. Check out the section of that website headed "Voting to Retain or Reject Indiana Appellate Judges and Justices," which links to several Res Gestae articles I have written explaining that "voters need information about judges' records in order to make informed decisions and to make the retention vote meaningful." Included is this quote from the 2005 article:
As shown in the tables, in 2006 one Supreme Court justice and five Court of Appeals judges will be up for retention, should they so choose. In 2008, as the facts stand now, the Tax Court judge, one Court of Appeals judge and three Supreme Court justices may be on the ballot. It is up to the state and local bar associations, the media, and the League of Women Voters and similar civic groups, to start now to assure that the citizenry will have the information they need to make their votes on retention meaningful.The new Court site on those up for retention in 2008 contributes to meeting this need. The information will be enhanced when the Indiana State Bar Association evaluations are available. But more information is needed, such as newspaper articles featuring appropriate questions to the judges, so that voters may compare and contrast the answers.
And the ILB hopes to add, within the next few days, an "at a glance" table of relevant information about the candidates for retention.
Posted by Marcia Oddi on October 2, 2008 08:12 AM
Posted to Indiana Courts
Ind. Courts - "Group calls for merit selection of Lake County judges"
John Byrne of the Gary Post-Tribune reports:
Representatives of the Lake County Bar Association and local officials will testify Friday before the state Commission on Courts to explain why County Division judges in Lake County should be chosen by merit, rather than popular election.Bill Dolan of the NWI Times reports:Critics of elected judges have argued the four County Division judges -- Nicholas Schiralli, Julie Cantrell, Jesse Villalpando and Sheila Moss -- maintain large, expensive staffs of public defenders to help finance their re-election campaigns.
Some also say the judges' appearance of impartiality is compromised by the fact they must be elected.
Cantrell herself will testify about the need to change to a merit system, where judges are selected by a local panel from a list of nominees submitted by the governor.
Scott Yahne, president of the Lake County Bar Association, said Wednesday his organization, which represents many of the county's lawyers, supports including the four courts in the county's merit selection system, which ensures judges' decisions will be independent of political influence.Here is the agenda for tomorrow's meeting of the Commission on Courts. On the agenda, in addition to "(3) Merit selection of judges of the Lake Superior Court County Division," is another item, "(2) Selection of judges in St. Joseph County."Lake County is one of two counties in the state in which most Superior Court judges are nominated by a panel of lawyers and lay people and appointed to office by the governor. They face the voters every six years in nonpartisan retention-rejection referendums.
This should be interesting, as the Lake group is urging that the remaining judges in Lake County be made merit, while in the only other county in Indiana with merit selection of judges, the Commission on Courts is charged with considering:
D. Whether judges in St. Joseph County should be selected by election or appointment and if the selection process is changed, how should it be changed and how should the changes be implemented (SEA 329-2008 - SEC. 25, p. 23)
Posted by Marcia Oddi on October 2, 2008 07:55 AM
Posted to Indiana Courts
Wednesday, October 01, 2008
Ind. Decisions - 7th Circuit issues Illinois election decision that references Indiana
In Allan J. Stevo v. Keith et al, a decision just posted by the 7th Circuit, "in typescript", and argued 9/25/08, which deals with the number of signatures required to get one's name on the November 2008 general ballot as an independent candidate for the U.S. House of Representatives from Illinois’s Tenth Congressional District, which encompasses parts of Lake and Cook Counties, Judge Posner writes:
But the plaintiff argues that Illinois’s disparate treatment of the two types of district shows that a 5 percent minimum is arbitrary, at least in Illinois. He is using the 5,000‐signatures provision of the law just to show that if it is good enough in newly redistricted districts, it is good enough in all districts. * * *Suppose the Indiana approach, whereby disaggregation of votes to the precinct level in the preceding election enables the same percentage to be required in districts that have recently been redistricted and districts that have not been, is indeed a compellingly superior approach; nevertheless the plaintiff would not have standing to urge its adoption. The Indiana approach is a solution to the problem of determining previous voter turnout after a redistricting, and the Tenth Congressional District is not a newly redistricted district. So the plaintiff is forced to argue that a uniform rule requiring 5,000 signatures (or a slightly higher number, provided it is below the number of valid signatures he was able to obtain) is so far superior to the present system that the Constitution requires that it be substituted for it. That is wrong, given the disparity in voter turnout in the different districts. We have just seen that requiring a number rather than a percentage may well be a bad feature of Illinois’s treatment of elections in recently redistricted districts; the plaintiff urges us to impose that quite possibly inferior method in all elections, rather than, as at present, in just the elections in newly redistricted districts.
We warned in Crawford v. Marion County Election Board, 472 F.3d 949, 954 (7th Cir. 2007), affirmed, 128 S. Ct. 1610 (2008), against federal judicial micromanagement of state regulation of elections. * * * But the appeal in this case fails on a more basic level: the change the plaintiff asks us to make in the Illinois voting system might well make that system more arbitrary than it already is. AFFIRMED.
Posted by Marcia Oddi on October 1, 2008 04:11 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court grants one transfer this week
The formal transfer list will not be out until next Monday, but the ILB has just received notice that the case of Brandon Stanley v. Danny Walker was granted transfer yesterday, Sept. 30th.
See the ILB summary from June 3rd (4th case), where Judge Darden stated the issue as:
Whether the trial court improperly relied on Indiana’s collateral source statute as the basis for excluding Stanley’s proffered evidence of write-offs to Walker’s medical bills, offered to rebut Walker’s medical records, which omitted written-off charges and indicated that Walker had incurred greater medical expenses than he actually had.The conclusion:
Based upon the foregoing, we conclude that fundamental notions of tort law, surviving policy justifications of the common law collateral source rule, and concerns of equity warrant the finding that write-offs secured by insurance companies for the benefit of their insureds, constitute insurance benefits for which the plaintiff or the plaintiff’s family has paid directly, and therefore, must be excluded from consideration when calculating the extent of the injured party’s pecuniary loss. Affirmed.
Posted by Marcia Oddi on October 1, 2008 02:18 PM
Posted to Indiana Transfer Lists
Ind. Decisions - More on yesterday's COA decision in the BMV ID rules case
The COA decision yesterday in the case of In Joel Silverman, Commissioner of the Indiana Bureau of Motor Vehicles v. Miguel Villegas, Betty Doe, et al., is the subject of a story today by Eric Berman of WIBC. The story is headlined "State must pay legal fees because procedural error briefly invalidated ID rules."
Toughened BMV requirements to prove your identity before getting a driver's license withstood a court challenge -- but the state still must pay $112,000 to three illegal aliens who challenged the rules.This is the case where the COA held identification requirements put in place by the BMV invalid because they were, according to the ruling: "not promulgated pursuant to the Indiana Administrative Rules and Procedures Act (“ARPA”), Indiana Code § 4-22-2 et seq. Because the requirements were not promulgated in accordance with the ARPA, they are void and without effect." See this Aug. 12, 2005 ILB entry.The immigrants filed a class-action suit in 2002, contending stricter ID requirements were unconstitutional. They lost that claim, but the Indiana Court of Appeals ruled in 2005 the BMV had violated notice requirements in imposing the rule. The BMV fixed the procedural error in 2006.
When you get sued and lose, you generally have to pay legal fees. The state argued since it won the main point, it shouldn't have to pay. A 2-1 appeals court disagrees.
To correct this problem, the BMV had to start over and go through the entire rulemaking process, designed to ensure procedural due process. This took a number of months, including a public hearing. See this ILB entry from Sept. 10, 2005 re the details.
On March 10, 2006 the Supreme Court dismissed the BMV's transfer petition as moot, according to this ILB entry.
Next followed the current case to collect attorney fees. The write-up for the July 8th oral argument states:
This case follows Villegas v. Silverman, 832 N.E.2d 598 (Ind. Ct. App. 2005). The Bureau of Motor Vehicles' ("BMV") identification requirements were challenged by illegal aliens. After this court held that the BMV had to comply with rulemaking procedures to adopt identification requirements and remanded to the trial court, the BMV properly promulgated identification rules. The trial court on remand granted summary judgment to the plaintiffs because the previously-challenged identification requirements were void. The trial court then granted the plaintiffs' motion for attorney fees in excess of $100,000 upon finding that they were "prevailing parties" for the purpose of 42 U.S.C. § 1988. Joel Silverman, in his official capacity as Commissioner of the BMV, appeals the trial court's award of attorney fees. The Scheduled Panel Members are: Chief Judge Baker, Judges Riley and Judge Robb.
Posted by Marcia Oddi on October 1, 2008 12:52 PM
Posted to Ind. App.Ct. Decisions
Courts - Many new cases added to docket by SCOTUS today
From SCOTUSLaw:
The Court also added ten new cases to its decision docket for the year; most of these are likely to be heard in January or February. (All available certiorari-stage filings are available here.)Read the details from SCOTUSLaw.Among those ten, seven involved issues of criminal law.
The other three cases raised issues about requiring all companies who had some role in dumping polluting wastes to pay the full costs of clean-up, when that liability could be split up among them (Burlington Northern v. U.S., 07-1601, and Shell Oil v. U.S., 07-1607, consolidated for briefing and argument), about the federal government’s duty to help Indian tribes protect their mineral resources (U.S. v. Navajo Nation, 07-1410), and about the authority of the state of Hawaii to sell lands without resolving claims to that land by native Hawaiians (Hawaii v. Office of Hawaiian Affairs, 07-1372).
See also this page from the SCOTUSLaw Wiki for details on the individual cases.
Posted by Marcia Oddi on October 1, 2008 12:33 PM
Posted to Courts in general
Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (1):
Robert Brantley, Jr. v. State of Indiana (NFP)
Posted by Marcia Oddi on October 1, 2008 12:30 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "Why It Mattered That Lincoln Was a Lawyer"
A free 1.5 hour CLE offered by the Indiana Supreme Court this Friday, Oct. 3, from 3-4:30. Or you can view it online, with no CLEs. Either way, info here.
Posted by Marcia Oddi on October 1, 2008 12:26 PM
Posted to Indiana Courts
Ind. Courts - More on: "If you cannot afford an attorney, one will be appointed for you."
Updating this ILB entry from Sept. 26th on the appointment of counsel for indigent defendants, where I commented:
I'm told that in at least some Indiana counties little effort is made to determine eligibility before a public defender is assigned. The ILB would be interested in comments from readers on this point.I have received the following from a reader with indisputable credentials:
Be aware that the appointment of counsel requirement in Indiana is even more stringent when dealing with alleged delinquent children, i.e.:31-32-4-2. Delinquent children -- Other children.The same is true by statute in termination cases:(a) If:
(1) a child alleged to be a delinquent child does not have an attorney who may represent the child without a conflict of interest; and
(2) the child has not lawfully waived the child's right to counsel under IC 31-32-5 (or IC 31-6-7-3 before its repeal);
the juvenile court shall appoint counsel for the child at the detention hearing or at the initial hearing, whichever occurs first, or at any earlier time.
(b) The court may appoint counsel to represent any child in any other proceeding.
31-32-4-3. Termination proceedings -- Other proceedings.Further, caselaw requires appointment of counsel in contempt situations even if the contempt proceeding is brought by a private person rather than by the state:(a) If:
(1) a parent in proceedings to terminate the parent-child relationship does not have an attorney who may represent the parent without a conflict of interest; and
(2) the parent has not lawfully waived the parent's right to counsel under IC 31-32-5 (or IC 31-6-7-3 before its repeal);
the juvenile court shall appoint counsel for the parent at the initial hearing or at any earlier time.
(b) The court may appoint counsel to represent any parent in any other proceeding.
"we hold that where the possibility exists that an indigent defendant may be incarcerated for contempt for failure to pay child support he or she has a right to appointed counsel and to be informed of that right prior to commencement of the contempt hearing." In re Marriage of Stariha, 509 N.E.2d 1117, at 1121 (Ind. App. 1987)
Posted by Marcia Oddi on October 1, 2008 08:45 AM
Posted to Indiana Courts
Ind. Law - "When deadly force is justified"
Francesca Jarosz of the Indianapolis Star writes today on the Indiana law justifying the use of deadly force. Some quotes:
The Indiana law that justifies use of deadly force for people defending themselves, their home or others in danger is seldom used, but this week's case involving a Northwestside family brings it to the spotlight.The ILB has had a long list of entries on "deadly force" laws. See particularly this entry from Sept. 11th.Sunday, Robert McNally put a chokehold on a naked intruder. The man died, and McNally faces no charges.
Law enforcement officials said McNally's actions were merited by the law, which does not require people to back away before defending themselves or someone else from serious bodily injury or a forcible felony.
Indiana is like 22 other states, mostly in the Midwest and South, that since 2005 have strengthened deadly force laws to ensure that crime victims could not be prosecuted for rightfully defending their family or home. * * *
Henry Karlson, a retired professor of law at Indiana University, said it doesn't appear that McNally used deadly force because it wasn't foreseeable that his actions could cause death. But Karlson and other experts agree that even if he had, the use of deadly force would be merited.
The right to self-defense has been in existence in Indiana since the state's constitution was drafted, Karlson said. It was expanded to include the right to defend a third person in the 1970s.
In 2006, Indiana lawmakers strengthened the law to state that a person can use deadly force without first trying to back away from danger. Rep. Eric Koch, R-Bedford, who wrote the bill, said it was implemented to assure crime victims that they can defend themselves without fearing prosecution or a lawsuit.
"What we were doing is really expressing the intent of the Second Amendment," Koch said. "(People) can be confident of their rights."
Though there is no movement to expand or rein in the laws in Indiana, backers like the NRA continue to encourage such laws' expansion in other states. These supporters call them "stand your ground" laws.
Opponents, however, call them "shoot first" laws and identify examples of misuse in some states.
Here is HEA 1028 from 2006, which amended the deadly force law to include "does not have a duty to retreat" and expanded the law from protection of the person's dwelling, to include "an occupied motor vehicle."
Posted by Marcia Oddi on October 1, 2008 08:27 AM
Posted to Indiana Law
Ind. Courts - Court hears oral arguments in plea case of first impression
The oral arguments before the Supreme Court Tuesday in the case of Shawn E. Norris v. State (see ILB background) are the subject of a story today by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:
Four years after pleading guilty to molesting a young girl, Shawn Norris wants to use newly discovered evidence to exonerate him of the crime.Listen to the oral argument here.But first the justices of the Indiana Supreme Court have to give him that option.
The state’s high court heard oral arguments about the Kosciusko County case Tuesday.
It is one of first impression, which means there are no previous legal rulings on the issue in Indiana.
Defendants have long had the right to use the post-conviction relief process to introduce newly discovered evidence and argue their guilt. But the avenue has been used only by those convicted at trial – not those who voluntarily admit their guilt. * * *
Nancy McCaslin, attorney for Norris said he is intellectually challenged – or mildly mentally retarded, according to court records – and he believed that he had molested the girl based on what the girl’s mother told him.
But in 2006, the girl’s mother signed an affidavit recanting the allegations, saying they are “wholly and completely false.”
She said she initiated the case against Norris to regain custody of her children.
“At the time I initiated these false claims I was fully aware that Shawn Norris was mentally retarded and I knew I could force him to say whatever I told him,” the affidavit said. * * *
Several of the justices seemed concerned about the breadth of cases this could open up for review – with the simple recantation of one witness or co-defendant.
“It’s our obligation to look beyond this case,” Chief Justice Randall T. Shepard said. “You are asking us to say everybody who can roust up an affidavit or some other piece of data that might have been admitted had there been a trial may be entitled to set aside the plea in which the person said, ‘I did it.’ ”
And Justice Frank Sullivan Jr. noted that Norris could appeal his plea as not being “knowing, voluntary and intelligent” due to his diminished mental capacity without creating new case law.
Arthur Thaddeus Perry, a deputy attorney general fighting to maintain the conviction, encouraged the justices to dismiss the case by finding the woman’s affidavit doesn’t meet a nine-point test to count as newly discovered evidence.
That would leave open the ultimate question of whether someone who pleads guilty has the right to later challenge that conviction with newly discovered evidence.
“I thought it was always a judicial principle that courts don’t decide questions they don’t have to,” Perry said.
Posted by Marcia Oddi on October 1, 2008 08:04 AM
Posted to Upcoming Oral Arguments
Law - Law prof creates useful websites for his students and others
Douglas O. Linder, Elmer Powell Peer Professor of Law, University of Missouri- K. C. School of Law, has created a number of very cool law websites, on famous trials, constitutional law, the First Amendment, and the jury. Check them out here.
Posted by Marcia Oddi on October 1, 2008 07:53 AM
Posted to General Law Related
Tuesday, September 30, 2008
Ind. Decisions - Court of Appeals issues 4 today (and 24 NFP)
For publication opinions today (4):
In Joel Silverman, Commissioner of the Indiana Bureau of Motor Vehicles v. Miguel Villegas, Betty Doe, et al. , a 24-page, 2-1 opinion, Judge Robb writes:
Three illegal aliens instituted a class action against the Commissioner of the Indiana Bureau of Motor Vehicles (“BMV”) claiming they were unable to obtain State of Indiana driver’s licenses and/or identification cards because of identification requirements implemented by the BMV on July 15, 2002. In a prior appeal, this court held that the identification requirements constituted an administrative rule, which was void because it was not promulgated pursuant to the Indiana Administrative Rules and Procedures Act (“ARPA”). We therefore instructed the trial court to enter summary judgment in favor of the plaintiffs. Villegas v. Silverman, 832 N.E.2d 598, 610 (Ind. Ct. App. 2005), reh’g denied, trans. dismissed (“Villegas I”). The trial court entered judgment in the plaintiffs’ favor on their complaint and granted the plaintiffs’ motion for attorney fees and costs as prevailing parties pursuant to 42 U.S.C. § 1988 (“section 1988”), ordering the BMV to pay such attorney fees and costs in the amount of $112,468.43. The BMV appeals the trial court’s grant of this motion, raising for our review the issue of whether the plaintiffs are prevailing parties pursuant to section 1988 for the purpose of awarding fees. Concluding that the plaintiffs are prevailing parties and that their success in having the identification rule voided merits an award of attorney fees, we affirm. * * *In French-Tex Cleaners v. Cafaro Co. and Towne Management Co. , a 23-page opinion, Judge Kirsch writes:The plaintiffs are prevailing parties for succeeding on a state statutory claim that is pendent to a substantial federal constitutional claim that arises from a common nucleus of operative fact. Moreover, the plaintiffs’ success in having the identification requirements declared void merits an award of attorney fees. The trial court’s section 1988 attorney fee award is therefore affirmed. Affirmed.
RILEY, J., concurs.
BAKER, C.J., dissents with separate opinion. [that concludes] The majority seemingly takes the view that a claimant need only advance “some” type of constitutional claim and succeed on a non-related state claim to become entitled to attorneys’ fees under Section 1988, regardless of any failure to prove the constitutional claim or even make a showing that the federal claims were substantial. To me, such a notion contradicts the spirit of the Section 1988 provisions. Because the plaintiffs’ counsel did not achieve any recovery that was beneficial to their clients pursuant to their federal claim, I believe that the award of attorneys’ fees in this case was not warranted under Section 1988. Thus, I would reverse the judgment of the trial court.
French-Tex Cleaners, Inc. (“French-Tex”) brings this interlocutory appeal of the trial court’s grant of summary judgment: (1) in favor of Cafaro Company (“Cafaro”) on French-Tex’s breach of contract and conversion claims; and (2) in favor of Towne Management Company (“Towne”) on French-Tex’s conversion claim. Towne brings an interlocutory cross-appeal on the trial court’s grant of summary judgment in favor of French-Tex on French-Tex’s breach of contract claim. The parties raise the following restated issues: I. Whether the trial court erred in granting summary judgment in favor of French-Tex on its breach of contract claim against Towne. II. Whether the trial court erred in granting summary judgment in favor of Towne on French-Tex’s conversion claim. III. Whether the trial court erred in granting summary judgment in favor of Cafaro on French-Tex’s claims for breach of contract and conversion. We affirm in part, reverse in part, and remand.In Bridget Pavese v. Cleaning Solutions , a 12-page opinion, Judge Vaidik writes:
After the Indiana Supreme Court in Milledge v. The Oaks, 784 N.E.2d 926 (Ind. 2003), adopted the positional risk doctrine that placed the burden of proof on employers in cases involving neutral risks, the Indiana General Assembly amended Indiana Code § 22-3-2-2(a) to place the burden of proof on employees throughout the proceedings. In this case, Bridget Pavese fell on the job and received medical treatment for a head injury. Her employer, Cleaning Solutions, refused to pay her medical bills. Pavese now appeals the decision of the full Worker’s Compensation Board affirming the decision of a hearing member, who concluded that she experienced a personal event on the job that is not covered by the Worker’s Compensation Act. Specifically, Pavese contends that the amendment to Indiana Code § 22-3-2-2(a) is unconstitutional as applied to her because it places on her the burden of proving a negative, that is, that her injury is not the result of a personal health condition. In the event we find the amendment constitutional, Pavese asserts that she has nevertheless met her burden of proof. Concluding that Pavese has not met her burden of proving that the amendment to Indiana Code § 22-3-2-2(a) is unconstitutional and that she also has not met her burden of proving that her injury arose out of her employment, we affirm.In Franklin R. Marshall v. State of Indiana , a 17-page opinion, Judge Kirsch writes:
Following a jury trial, Franklin R. Marshall was convicted of five child molesting felonies, four as Class A felonies1 and one as a Class B felony.2 Marshall raises four issues, which we consolidate and restate as: I. Whether the trial court committed errors in the admission and exclusion of evidence during trial; II. Whether any trial court error occurred with respect to Marshall’s claim that the jury saw him before or after trial being transported in handcuffs; and III. Whether Marshall’s aggregate ninety-six year sentence is inappropriate given his character. We affirm.NFP civil opinions today (7):
Indiana Alcohol and Tobacco Commission v. Ultimate Place, et al. (NFP) - "From the foregoing, we conclude that the ATC’s, and the local board’s, decision to deny Ultimate Place’s application for an alcoholic beverage permit renewal was not based upon substantial evidence and was arbitrary and capricious. The trial court did not improperly reweigh the evidence. The decision of the trial court is affirmed. Affirmed."
Guaranteed Muffler and Brake v. Arthur M. Rosales (NFP) - "Guaranteed Muffler and Brake (Guaranteed) appeals the small claims court’s judgment awarding Arthur M. Rosales monetary damages relating to repair work performed on Rosales’s car by Guaranteed. The following issue is dispositive of the appeal: Did the trial court err in concluding that Guaranteed is liable to Rosales because it failed to warn him about the defective fuel rail in his engine and the immediate dangers inherent therein? We affirm. * * *
"In balancing the three factors set out above, we conclude that Rosales’s direct customer-client relationship with Guaranteed, the foreseeability that his car could catch fire if the fuel rail malfunctioned, and the foregoing public policy considerations all mitigate in favor of the imposition on Guaranteed of a duty to warn, a duty which the trial court found that Guaranteed failed to discharge. Accordingly, Guaranteed has failed to establish a prima facie case that the trial court’s judgment was clearly erroneous."
Kirby T. Hobbs v. Tiana L. Hobbs (NFP) - "Kirby T. Hobbs (“Husband”) appeals the trial court’s denial of his motion to correct error filed subsequent to its dissolution decree awarding Tiana L. Hobbs (“Wife”) one half of the marital estate. Wife asserts that she is entitled to reasonable appellate attorney’s fees. We affirm the trial court’s disposition of the property and remand for a determination of appellate attorney’s fees. * * *
"The trial court retains jurisdiction to award appellate attorney’s fees even after the perfection of this appeal. Thompson, 811 N.E.2d at 929. We therefore remand this case to the trial court to determine whether appellate attorney’s fees should be awarded and in what amount."
J. Michael Ray v. Laidlaw Medical Transportation, Inc., et al (NFP) - "J. Michael Ray (“Ray”) appeals from the Allen Superior Court’s grant of summary judgment in favor of Laidlaw Medical Transportation, Inc. d/b/a American Medical Response of Fort Wayne (“AMR”) in Ray’s “whistleblower” suit against AMR. Upon appeal, Ray claims that the trial court erred in concluding that Ray was required to have reported a violation of federal law or regulation in writing before he was protected under the whistleblower statute, Indiana Code section 22-5-3-3 (2005). We affirm. * * *
"Although Ray makes several arguments regarding public policy reasons for protecting employees from retaliation for verbal reports, such arguments are best directed toward our General Assembly, which apparently chose not to protect employees who did not file written reports. As AMR notes, several states have whistleblower statutes which protect employees for making either written or verbal reports of violations. * * * Our statute could have been written to similarly provide protection for employees who report violations of the law either verbally or in writing, but it does not.
"Because Ray did not make a written report of the alleged violations prior to his discharge, the whistleblower statute affords him no protection. The trial court therefore did not err in granting summary judgment in favor of AMR."
The Matter of Term. of Parent-Child Rel. of E.M. v. Jackson Co. Dept. of Child Svcs. (NFP) - "Concluding that the trial court’s judgment terminating Father’s parental rights is supported by clear and convincing evidence, we affirm."
Term. of Parent-Child Rel. of S.B., and Jennifer B. v. State of Indiana, Office of Family and Children (NFP) - "J.B. (“Mother”) appeals the trial court’s termination of the parent-child relationship with her son, S.B., upon petition of the Allen County Department of Child Services (“DCS”). The sole issue for our review is whether there is sufficient evidence to support the termination. We affirm."
In the Matter of T.S. and B.S. (NFP) - "Appellant-Petitioner Warrick County Department of Child Services (“WCDCS”)
appeals the juvenile court’s determination that the evidence was insufficient to prove that
T.S. and B.S. were Children in Need of Services (“CHINS”) with respect to their mother,
Brenda Simmons. We affirm."
NFP criminal opinions today (17):
Andre Powell v. State of Indiana (NFP)
Joshua Engler v. State of Indiana (NFP)
John W. McMaster v. State of Indiana (NFP)
Steve Delp v. State of Indiana (NFP)
Krystal Joanna Raney v. State of Indiana (NFP)
Joshua Bennett v. State of Indiana (NFP)
Shaun Long v. State of Indiana (NFP)
Christine D. Edwards v. State of Indiana (NFP)
Hassan Bledsoe v. State of Indiana (NFP)
Jermaine Davis v. State of Indiana (NFP)
D.R., Jr. v. State of Indiana (NFP)
Jacqueline Hohenberger v. State of Indiana (NFP)
Armone Neely v. State of Indiana (NFP)
Antonio Carney v. State of Indiana (NFP)
Tracy D. Mayes v. State of Indiana (NFP)
Edwin Thomas v. State of Indiana (NFP)
Billy Moore v. State of Indiana (NFP)
Posted by Marcia Oddi on September 30, 2008 12:43 PM
Posted to Ind. App.Ct. Decisions
Ind. Law - Still more on: "Can you rely on the Indiana Code?"
In this ILB entry from Aug. 23rd, I reported that I was preparing Part II of my Res Gestae article, "Can you rely on the Indiana Code?" Here is a direct link to Part I, and here are earlier, related links.
Part II, titled "More noncode provisions, some recommendations," will appear in the Oct. 2008 issue of Res Gestae. The article begins with examples from readers, then continues on with other specific examples of substantive provisions of interest that are the law of the State, but were never included in the Indiana Code. Next, the article addresses the question of whether the use of noncode provisions has increased over the years. The article concludes with specific recommendations.
It is my opinion that these recommendations need to be implemented as soon as possible. Here is the link to an advance copy of Part II.
Posted by Marcia Oddi on September 30, 2008 11:12 AM
Posted to Indiana Law
Ind. Gov't. - "Leaky roof a catalyst for moldy record books in Boonville"
Lydia X. McCoy reports today in the Evansville Courier & Press:
BOONVILLE, Ind. — Row after row of old record books fills the former Carquest building on Boonville's Main Street.The county has been using the small, brick building for storage, but a leaky roof has left the items in moldy disarray.
Now county officials have to figure out the answers to a number of questions: What can be thrown away? What needs to be kept? Where do you store them — and future records — to keep them safe?
"It's no surprise to anyone that the records are in such bad shape because of the mold and the rain and everything that has damaged them over the years," said Circuit Court Judge David Kelley, who is also the chairman of the county's records retention commission, during a recent meeting. * * *
Warrick County Commissioners President Don Williams said that body found out about the moldy records several weeks ago.
"We had no idea those records were out there like that ... the pictures that I saw were not good," he said. "We have to have a more secure area for our records."
The problem was discovered when some children were spotted on the roof of the building after an ice storm earlier this year. When one of the county's maintenance workers went on the roof to check things out, he discovered a hole in the roof.
The hole wasn't repaired, in part because the county was debating future uses for the building, and with the spring's rains, more and more records became wet and started molding.
"We knew there was no heat and no cooling in there," Weisheit said. "Everybody knew it leaked, but we didn't know it was ever in such bad shape."
Before the Judicial Center was built about 10 years ago, old records were stored off site with a company called Kinder for $6,000 a year. The records were given a bar code and put in inventory. After the Judicial Center was built, it was decided the $6,000 could be saved by storing the records at an off-site building owned by the county.
Posted by Marcia Oddi on September 30, 2008 10:51 AM
Posted to Indiana Government
Environment - "Shuttered EPA libraries to open doors tomorrow after two years"
From a release issued by the Public Employees for Environmental Responsibility, which begins:
Washington, DC — Under orders from Congress, the U.S. Environmental Protection Agency tomorrow will again provide access to library services in 15 states and its own headquarters to agency employees and the public. This ends a 30-month campaign by the Bush administration to restrict availability of technical materials within EPA but leaves in its wake scattered and incomplete collections under new political controls of library operations, says Public Employees for Environmental Responsibility (PEER).On September 30th, the last day of the federal fiscal year, EPA will re-open its regional libraries in Chicago (serving the Great Lakes region), Dallas (Mid-Southern region) and Kansas City (Mid-Western region) after more than two years. In addition, a long-shuttered library in EPA Headquarters will re-open and include a small portion of holdings from what had been a free-standing Chemical Library, for research on the properties and effects of new chemicals, as a “special Chemical Collection”.
In its September 24, 2008 Federal Register notice, EPA promises that these re-opened facilities “will be staffed by a professional librarian to provide service to the public and EPA staff via phone, e-mail, or in person…for a minimum of 24 hours over four days per week on a walk-in basis or by appointment.”
Posted by Marcia Oddi on September 30, 2008 10:05 AM
Posted to Environment
Ind. Decisions - More on: Court grants transfer in school finance case
Updating this ILB entry from yesterday, Karen Francisco, of the Fort Wayne Journal Gazette's education blog, Learning Curve, has some commentary today.
See this ILB from Aug. 19th for links to several of the briefs filed re the transfer petition.
Posted by Marcia Oddi on September 30, 2008 09:57 AM
Posted to Indiana Transfer Lists
Ind. Decisions - "Mortgage Lenders Fight Off Rescission Class Action in 7th Circuit"
Reporting about the 7th Circuit's Sept. 24th decision in the case of Andrews v. Chevy Chase Bank, Pamela A. MacLean of The National Law Journal writes today:
In a boon for the mortgage lending industry, a federal appeals court has said the Truth in Lending Act does not allow for rescission of mortgages on a class action basis.Judge Sykes' opinion begin:The 7th U.S. Circuit Court of Appeals, in a 2-1 decision on Wednesday, averts the potential of significant damages for creditors accused of violating disclosure requirements in some of the exotic mortgage vehicles that exacerbated the mortgage market meltdown and has Congress contemplating ways to restore credit market confidence.
The Circuit decision joins an earlier ruling by the 1st and 5th Circuits and one California state appellate court that have held that the Truth in Lending Act (TILA) does not allow claims for rescission in a class action format.
In this interlocutory appeal, we are called on to answer one question: May a class action be certified for claims seeking the remedy of rescission under the Truth in Lending Act (“TILA”), 15 U.S.C. § 1635? The only two federal appellate courts to have addressed this question have answered “no,” see McKenna v. First Horizon Home Loan Corp., 475 F.3d 418 (1st Cir. 2007); James v. Home Constr. Co. of Mobile, Inc., 621 F.2d 727 (5th Cir. 1980), and we agree. TILA’s statutory-damages remedy, § 1640(a)(2), specifically references class actions (by providing a damages cap), but TILA’s rescission remedy, § 1635, omits any reference to class actions. This omission, and the fundamental incompatibility between the statutory-rescission remedy set forth in § 1635 and the class form of action, persuade us as a matter of law that TILA rescission class actions may not be maintained.This entry this morning in How Appealing links to a Sept. 24th story in the Milwaukee Journal Sentinel, which includes some interesting quotes.
Posted by Marcia Oddi on September 30, 2008 09:49 AM
Posted to Ind. (7th Cir.) Decisions
Monday, September 29, 2008
Ind. Decisions - Court of Appeals issues 1 more this afternoon (and 2 more NFP)
For publication opinions today (1):
Michael A. Smith v. State of Indiana This is a 2-1, 12-page opinion. Chief Judge Baker writes:
Appellant-defendant Michael A. Smith appeals the trial court’s order finding him in direct contempt of court. Smith argues that his due process rights were violated because the trial court did not appoint a neutral judge to preside over the hearing at which Smith was sanctioned for his behavior and that the trial court erroneously found his actions to be directly contemptuous. Finding no error, we affirm. * * *NFP civil opinions today (0):ROBB, J., concurs.
RILEY, J., dissents with opinion. [which begins] I respectfully dissent. Master Commissioner Rubick did not have the authority to enter a final order on contempt. Our legislature has promulgated statues that should control our disposition of this case. The majority has ignored those statutes.
NFP criminal opinions today (2):
Linden Cornewell v. State of Indiana (NFP)
Jennifer Harding v. State of Indiana (NFP)
Posted by Marcia Oddi on September 29, 2008 03:47 PM
Posted to Ind. App.Ct. Decisions
Ind. Gov't. - Still more on: Coach Crean's contract online
Updating earlier ILB entries on IU Coach Crean's contract, now, thanks again to the Indianapolis Star, we have access to Purdue Coach Painter's contract. The links are part of Star reporter Mark Alesia's story today headed "Painter's deal with Purdue is much less lucrative than Crean's with IU." From the long story:
The guaranteed money per season in the contract of Purdue men's basketball coach Matt Painter is a little more than one-third that of Indiana coach Tom Crean, according to public documents released to The Star this week.Painter, last season's Big Ten Coach of the Year, has a six-year contract through 2012-13 that guarantees him an average of $843,000 per year.
Crean, hired from Marquette to rebuild IU's program after an NCAA investigation and the resignation of former coach Kelvin Sampson, is guaranteed $2.36 million per year in a 10-year contract through 2017-18.
"You could take the IU contract and contrast it with a lot of universities," Purdue athletic director Morgan Burke said. "They had their reasons."
Both coaches signed their contracts during the summer after agreeing to general terms several months earlier.
Posted by Marcia Oddi on September 29, 2008 03:18 PM
Posted to Indiana Government
Environment - Resources for Indiana environmental lawyers
The 2008 edition of the Indiana Environmental Statutes (I am the editor) is now available from the Indiana State Bar Ass'n. Access the order blank here.
The Indiana Environmental Enforcement Database, a totally searchable resource currently containing nearly 6,000 Indiana AOs, NOVs, and COs (with more being added every month), is open to new subscribers via my company, Environmental Information Solutions,. Details here.
Posted by Marcia Oddi on September 29, 2008 02:12 PM
Posted to Environment
Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)
For publication opinions today (3):
In Charlotte M. v. Jasper Co. Dept. of Child Svcs. , a 19-page opinion, the Court reverses a termination of parent rights. Judge Najam concludes:
In failing to provide a nexus between its purported findings, which simply recite the evidence presented during the termination hearing, and its decision to terminate Mother’s parental rights to the twins, the trial court’s termination orders fail to satisfy the requirements of Indiana’s termination statutes. Additionally, although cognizant of the high degree of deference to be given a trial court’s decision to terminate a parent-child relationship, we nevertheless can affirm a trial court’s judgment only if we find that a reasonable trier of fact could have concluded the judgment was established by clear and convincing evidence. Without weighing the evidence or assessing witness credibility, a thorough review of the record leaves us with a firm conviction that the trial court’s termination orders are not supported by clear and convincing evidence. Accordingly, the trial court’s orders terminating Mother’s parental rights to C.R.M. and C.B.M. are clearly erroneous. Reversed.In Ray A. Haas, M.D. v. Donald H. Bush, Rep. of the Estate of Elaine M. Bush , a 9-page opinion, Judge Friedlander writes:
Ray A. Haas, M.D. appeals a wrongful death judgment entered in favor of Donald H. Bush, as personal representative of the estate of his deceased wife, Elaine M. Bush (the Estate). Dr. Haas presents the following consolidated and restated issues for review: 1. Did the Indiana Supreme Court exceed its authority under the Indiana Constitution when it adopted Section 323 of the Restatement (Second) of Torts? 2. Did the trial court erroneously admit the written opinion of the medical review panel into evidence? We affirm.In John J. Balvich, Arlene Balvich, et al. v. Stephen C. and Maureen Spicer, a 23-page opinion, Chief Judge Baker writes:
Appellants-defendants John, Arlene, Jordan, and Beth Balvich (collectively, the Balviches) appeal the trial court’s judgment entered in favor of the appellees-plaintiffs Stephen and Maureen Spicer (the Spicers) regarding the Spicers’ claim against them for contribution on various deficiency judgments that had been entered against the Spicers. Specifically, the Balviches argue that the Spicers’ action against them was barred by the statute of limitations, that joint and several liability should not have attached, and that the Spicers erroneously obtained a judgment against them with regard to tax liabilities of the various business entities because the Indiana Tax Court had exclusive jurisdiction over such matters. Finding no error, we affirm the judgment of the trial court. * * *NFP civil opinions today (1):In light of our discussion above, we conclude that the Spicers’ action against the Balviches for contribution was not barred by the statute of limitations. Additionally, the evidence established that the Spicers were entitled to contribution from the Balviches on the AT&T and Bank One judgments, and the trial court properly concluded that the Spicers were entitled to contribution from Arlene on the Indiana tax trust liabilities.
Ilene R. Maurer v. Herman Maurer (NFP) - "Ilene Maurer appeals the trial court’s Indiana Trial Rule 12(B)(6) dismissal of her complaint against Herman Maurer. Ilene raises five issues on appeal, which we consolidate and restate as two issues: (1) whether the trial court erred when it dismissed her intentional interference with expectance of inheritance claim; and (2) whether the trial court erred when it dismissed her Intentional Infliction of Emotional Distress (“IIED”) claim. Concluding that although Ilene’s claims are not barred by the necessity of bringing them as a will contest pursuant to Indiana Code section 29-1-7-17, she nonetheless has failed to sufficiently plead a claim for which relief may be granted, we affirm."
NFP criminal opinions today (7):
Jason J. Green v. Laura S. Green (NFP)
Adrian E. Cofield v. State of Indiana (NFP)
Michael Williams v. State of Indiana (NFP)
Donald S. Lacy v. State of Indiana (NFP)
Kenneth William Shryock v. State of Indiana (NFP)
Jharon Holland v. State of Indiana (NFP)
Emigdio Lopez v. State of Indiana (NFP)
Posted by Marcia Oddi on September 29, 2008 12:45 PM
Posted to Ind. App.Ct. Decisions
Law - More on: "Tech activist takes on governments over 'copyrighted' laws"
Updating this ILB entry from Sept. 26th, two new stories today:
"Who Owns the Law? Arguments May Ensue " is the headline to a NY Times story today by Noam Cohen that contains a number of interesting points. Some quotes:
IN a time when scientists are trying to patent the very genetic code that creates life, it may not be too surprising to learn that a variety of organizations — from trade groups and legal publishers to the government itself — claim copyright to the basic code that governs our society."Sebastopol man puts code manuals online" is the headline to a story by Matthew B. Stannard, published Saturday in the San Francisco Chronicle. Some quotes:Well, it is still a bit of a head-scratcher. Let me try to explain.
To be clear, it has been established by the United States Supreme Court (no less) that the law and judicial decisions cannot be copyrighted. They are in the public domain and can be used and reused in any way possible, even resold.
Yet, in the real world, judicial decisions and laws and regulations can be exceedingly hard to find without paying for them, either in book form or online. And that doesn’t even include quasi-official material like the numeric codes doctors are required to use when filing for Medicaid or Medicare payments or the fire safety codes that builders are required to follow.
“The law is pretty clear that laws and judicial opinions and regulations are not protected by copyright laws,” said Pamela Samuelson, a professor at Boalt Hall School of Law at the University of California, Berkeley. “That isn’t to say that people aren’t going to try.”
A favorite method of trying, as Ms. Samuelson and other legal scholars explain, is to copyright the accoutrements surrounding the public material. So while the laws and court decisions themselves may be in the public domain, the same is not necessarily true for the organizational system that renders them intelligible or the supporting materials that put them into context. * * *
Into this maze of fuzzy law and competing ownership claims enters Carl Malamud, who for 15 years or so has used the Internet to liberate information that nominally exists in the public domain. He has pulled up federal court decisions, corporate filings to the Securities and Exchange Commission and, in an example of near performance art, the copyright registrations at the United States Copyright Office.
“So many people have been moving into the public domain and putting up fences,” he said in an interview from his office in Sebastopol, Calif., where he runs a one-man operation, public.resource.org, on a budget of about $1 million a year. Much of that money goes to buy material, usually in print form, that he then scans into his computer and makes available on the Internet without restriction.
Currently, safety codes for plumbers are “totally unavailable unless you pay $100 per copy,” he wrote in an e-mail message; a boiler safety code costs $13,000. (For that price, shouldn’t they throw in the boiler?)
As of Labor Day, he had put, he estimates, more than 50 percent of the nation’s 11 public safety codes online, including rules for fire prevention. “We have material from all 50 states, but we don’t have all 11 codes for all 50 states,” he said. * * *
To avoid legal fights, Mr. Malamud said, he takes the trouble not to scan material packaged within shrink wrap and bearing warnings that whoever breaks the seal agrees not to reuse the material. In those cases, like the American Society of Mechanical Engineers’ Safety Code for Existing Elevators and Escalators, he says, he finds another source without the implied license.
“If you require citizens to know, read and obey the rules, then it is in the public domain,” he said.
Even some critics of the current system say they understand why copyright has infiltrated the basic codes of the government. Peter Martin, a law professor at Cornell who was a pioneer in making legal material available on the Internet, explained the dilemma. A company “will say to some city, all your city council has to do is pump out ordinances, we’ll help you organize it and we’ll get to copyright it,” he said. “That is part of the quid for our quo.”
Professional organizations like the American Bar Association and the American Medical Association stress that they are performing a valuable, and expensive, service, by creating a code to rationalize the way doctors or lawyers behave, and deserve to be compensated. Take away the incentive, and there is no innovation, so the argument goes.
Rick King, executive vice president and chief operations officer of the North American Legal unit of Thomson Reuters, which owns many legal and medical databases, did not necessarily see Mr. Malamud’s cause as a threat. “I do think they are complementary,” he said about public.resource.org and his company’s legal research publishing, “as long as people are respectful of the parts that are copyrighted.”
He stressed that with more and more information being available online, his company’s value-added material would become even more valuable.
“If I am a regulator working for the E.P.A.,” Mr. King said, referring to the Environmental Protection Agency, “do I want to go to Google or a free database, or go to a Web site and see the historical changes in the code so I can understand why a code has changed the way it has?”
"It's very clear in American law that you can't get intellectual property protection for law," said Pamela Samuelson, co-director of the UC Berkeley Center for Law and Technology. "Law belongs to everybody."This year Malamud persuaded the Oregon legislature not to enforce its copyright claim to Oregon Revised Statutes - after he put them online. Now he'd like to see California - and other agencies that claim copyright over public codes and regulations - do the same.
"This stuff has been locked up behind a cash register," Malamud said. "(It's) way too important to just leave it there."
If Malamud is fishing for a lawsuit - something he denies - so far nobody is biting. Officials at the agencies whose codes Malamud has posted all say they are aware of his efforts but have no plans for legal action.
Which doesn't mean those agencies are giving up their copyright - especially if someone republishes the codes for profit, said Linda Brown, deputy director of the California Office of Administrative Law.
"If somebody is going to make commercial use of that, the people of California deserve to benefit," she said.
Brown said Malamud's rhetoric is misleading - many of the codes on his site are already available free online.
The state's administrative law office Web site, for example, allows users to search the California Code of Regulations. Many other state and federal agencies do the same.
But it's not enough, said Malamud. Many of the free codes carry notices banning downloading for commercial use or downloading, printing or more-complicated options. * * *
What's more, said California's Brown, some codes - including the California Code of Regulations - change frequently. Those changes are pushed out to people who purchase official subscriptions, but republishing sites like Malamud's may not be up to date.
Creating and updating the codes that help build safe schools, homes and offices is enormously complicated, said Michael Colopy, spokesman for the International Code Council. And the money from selling codes pays for that process.
"It is ultimately a disservice to the public if in the name of access to so-called free codes the very process that develops and enhances public safety is undermined," Colopy said. "The public is the big loser."
Malamud said he is sympathetic and willing to work with the ICC. But he argued that the ICC must grapple, like many industries, with the way the Internet is disrupting its business model.
"I think there is a lot of ways to keep that going without taking it out on the back of the kid in the pickup truck studying for the plumber's license," he said.
Posted by Marcia Oddi on September 29, 2008 12:08 PM
Posted to General Law Related
Ind. Decisions - Transfer list for week ending Sept. 26, 2008
Here is the just issued transfer list for the week ending Sept. 26, 2008. It is 3 pages long.
Three transfers were granted last week. Two are discussed in this ILB entry from Tues., Sept. 23rd, the third is discussed in this entry from earlier today.
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 29, 2008 11:58 AM
Posted to Indiana Transfer Lists
Law - "Neb. Officials: Parents Misusing Infant Drop-Off Law"
From NPR's Morning Edition this morning:
A new law intended to protect abandoned infants in Nebraska is having an unexpected effect. So far, 14 children — many preteens or teenagers — have been dropped off at Nebraska hospitals. State officials say parents fed up with raising unruly older children are misusing the law. Now they're calling on the legislature to change the law to restrict the age to younger children.Listen here.
Indiana's safe haven law in discussed in this June 26th ILB entry.
Unlike other states, Nebraska's law safe haven has no maximum age limit. See this AP story from Sept. 26 headed "Neb. lawmakers consider revising 'safe-haven' law."
Indiana's upper limit is 45 days of age.
Posted by Marcia Oddi on September 29, 2008 10:39 AM
Posted to General Law Related
Ind. Courts - "Interpreters in courtrooms a money issue"
James D. Wolf Jr. reports today in the Gary Post-Tribune:
VALPARAISO -- On Oct. 20, Vietnamese-born Len Huynh will stand trial for welfare and Medicaid fraud, but there's a complication: language.The ILB has had a number of entries on the Jesus Arrieta v. Indiana decision.Although she's been in U. S. foster homes since she was about 13, she's been tested as having a first-grade comfort level with English, according to her attorney, Eric Neff.
Huynh will have to provide her own translator, according to an Indiana Supreme Court ruling this year.
Since the Jan. 9 decision of Jesus Arrieta v. Indiana, translators for the accused are like expert witnesses or investigators in state felony cases, and that affects Porter County courts, mostly because they don't have to pay for trial translators.
"If the defendant has the ability to hire counsel, they have the ability to hire an interpreter," Judge Roger Bradford of Superior Court 1 said in explanation of the ruling.
Defendants who rely on a public defender can get a paid interpreter.
Otherwise, only when a jury can't understand either a defendant or a witness on the stand is the court obligated to pay, as Bradford's court did in the mid-August Arturo Garcia-Torres rape case.
When Garcia-Torres, 21, is sentenced on Nov. 14 on charges of rape, attempted rape and two counts of burglary, he'll have to find his own interpreter.
His attorney, Visvaldis Kupsis, used two volunteer translators for Garcia-Torres from missionary and church organizations.
Neff, however, is pricing translators for Huynh and noted she had one for a previous trial in Marion County. * * *
However, the courts have a resource for the pre-trial hearing where language becomes a barrier.
For initial hearings, where defendants find out what they're charged with, and for status hearings, the courts have had use of the Language Line.
The State Court Administrator began buying $25,000 worth of time at about $1.25 a minute from the California firm about two years ago, and usually the county courts use it.
"We get a lot of 'operating with no license,'" when the person has a Mexican license, Judge David Chidester of Superior Court 4 said.
Language Line is immediate, just a call to the company.
The court, which is the only county court at the Valparaiso courthouse, has used it about four times, mostly for Spanish, Court Reporter Becky Stowers said.
"It saves us from having to pay for an interpreter," Stowers said.
The firm also has interpreters on call around the world, including for indigenous, rare languages like those from small Mexican tribes, said Lilia Judson, executive director for the State Court Administrator.
Posted by Marcia Oddi on September 29, 2008 10:27 AM
Posted to Indiana Courts
Ind. Courts - "Porter County to get juvenile drug court"
James D. Wolf Jr. reports today in the Gary Post-Tribune in a story that begins:
VALPARAISO -- The Porter County Juvenile and Family Drug Court begins its first session Oct. 8, as the third active juvenile drug court in the state.It's an opportunity for those in the Porter County juvenile system to have the same substance abuse alternative as adults.
Seven juveniles and their families have qualified for the program, which will oversee juvenile court cases where drugs or alcohol were a factor.
The families then go into an intensive program.
"This is not just a juvenile drug court; it's a family drug court," Judge Mary Harper said. It won't have jurisdiction over siblings or other juveniles, but for parents, "the court can instill willingness through use of parental participation court orders."
Not only will parents need to participate in programs, they'll also have to take drug screenings.
"Most of the children who come through the court get their drugs from their parents or got started on drugs through their parents," she said.
Posted by Marcia Oddi on September 29, 2008 10:24 AM
Posted to Indiana Courts
Ind. Law - It's the Law: Getting arrested for being with a lawbreaker
Ken Kosky's "It's the Law" column in the NWI Times this week focuses on getting arrested for being with a lawbreaker. It begins:
Most people realize they will go to jail if they are caught burglarizing a house or taking illegal drugs.But what many people fail to consider is that they can be arrested just for being in the same car, house or other location with an offender.
For example, if police discover drug usage in a car, house or other location, the homeowner or driver can be charged with felony maintaining a common nuisance. But the people who are with the offender can be arrested on misdemeanor visiting a common nuisance charges.
Posted by Marcia Oddi on September 29, 2008 10:21 AM
Posted to Indiana Law
Ind. Decisions - Court grants transfer in school finance case
The formal transfer list from last week should be out this morning, but the ILB has just received notice that another case was granted transfer on Sept. 24th:
Joseph Bonner et al v. Mitch Daniels et al, the school finance case, was granted transfer. Here is the ILB summary of the May 2, 40-page COA 2-1 opinion. And here is a follow-up entry from the next day. Here is the Supreme Court case number: 49 S 02 - 0809 - CV - 00525
Posted by Marcia Oddi on September 29, 2008 10:02 AM
Posted to Indiana Transfer Lists
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Tuesday, Sept. 30th:
9:00 AM - Shawn E. Norris v. State - Norris pleaded guilty to child molesting in 2004, and then in 2007, petitioned for post-conviction relief on grounds of newly discovered evidence that he had not committed the offense. The Kosciusko Superior Court denied relief without a hearing. The Court of Appeals reversed, concluding that issues of material fact precluded summary disposition. Norris v. State, 881 N.E.2d 691 (Ind. Ct. App., 2/28/ 2008 - see ILB summary here), vacated. The Supreme Court has granted a petition to transfer the case, and has assumed jurisdiction over the appeal. Attorney for Norris: Nancy A. McCaslin, Elkhart, IN. Attorney for State: Arthur Thaddeus Perry, Indianapolis, IN.
9:45 AM - Filter Specialists, Inc. v. Dawn Brooks - After the Michigan City Human Rights Commission ruled that Filter Specialists engaged in racial discrimination when firing two employees and awarded back pay, Filter Specialists petitioned for judicial review. The LaPorte Circuit Court affirmed the Commission's decision. The Court of Appeals reversed and held that the Commission's decision was not supported by substantial evidence. Filter Specialists, Inc. v. Brooks, 879 N.E.2d 558 (Ind. Ct. App. 12/28/2007, a 2-1, 58-page opinion - see ILB summary here, about half-way down the page), vacated. The Supreme Court has granted a petition to transfer and has assumed jurisdiction over the appeal. Attorneys for Filer Soecialists: Timothy W. Woods and Brian Gates, South Bend, IN. Attorneys for Brooks and Weathers: Shaw R. Friedman,LaPorte, IN. Jay Lauer, South Bend, IN. Attorney for Michigan City Human Rights Commission: Lawrence W. Arness, Michigan City, IN .
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will be webcast:
This Monday, Sept. 29th:
2:00 PM - State of Indiana, Bureau of Motor Vehicles vs. Ash, Inc. - Appellant Indiana Bureau of Motor Vehicles ("BMV") appeals the trial court's order granting Appellee Ash, Inc.'s motion for summary judgment. Ash, Inc. cross-appeals, challenging the trial court's award of damages. In 2000, BMV leased two properties from Ash, Inc. for a period of ten years. Pursuant to a cancellation clause in the original leases, BMV terminated the leases in 2005. Ash, Inc. filed suit against BMV alleging that the parties modified the leases in 2003 by eliminating the cancellation clause and that BMV breached the leases when it vacated the properties in 2005. Both parties filed motions for summary judgment. The trial court granted Ash, Inc.'s motion for summary judgment finding that BMV breached the modified leases when it vacated the properties. The trial court also found that Ash, Inc. was not entitled to future damages. The Scheduled Panel Members are: Judges Friedlander, Darden and Barnes. [Where: Indiana Supreme Court Courtroom]
This week's oral arguments before the Court of Appeals that will NOT be webcast:
This Monday, Sept. 29th:
6:00 PM - Paul L. Mishler vs. State of Indiana - Was there sufficient evidence to support convictions for two counts of Child Molesting? The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Mathias. [Where: I.U. Law School, Bloomington, Indiana] [For more info, see this ILB entry from Sept. 19th]
This Tuesday, Sept. 30th:
10:00 AM - James H. Bowden and Edward E. Bowden vs. City of West Lafayette, Indiana - The Bowdens appeal the trial court's grant of summary judgment in favor of the City of West Lafayette in the City's claim that the Bowdens violated city zoning ordinances by allowing too many tenants in one residential unit, submitting false rental affidavits, and operating a business on the property. After the Bowdens were charged with zoning violations, the trial court bifurcated the issues of injunctive relief and fines. A permanent injunction was entered after the trial court found that the Bowdens had committed zoning violations. Thereafter, the trial court granted summary judgment in favor of the City on the issue of fines. The Bowdens contend that the trial court erred in denying their request for a jury trial on the question of fines. The Scheduled Panel Members are: Judges Kirsch, Vaidik and Crone. [Where: Indiana Court of Appeals Courtroom]
11:00 AM - Adam Drake vs. State of Indiana - Appellant was charged with Battery, a Class D Felony and Resisting Law Enforcement, a Class A Misdemeanor. Did he knowingly waive his right to assistance of counsel? The Scheduled Panel Members are: Chief Judge Baker, Judges May and Brown. [Where: Vincennes University, Vincennes, Indiana ]
Posted by Marcia Oddi on September 29, 2008 10:00 AM
Posted to Upcoming Oral Arguments
Ind. Gov't. - "Utah Tops 2008 Digital States Survey"
So reads the headline to this Sept. 16th story by Steve Towns in Government Technology. The report begins:
Utah topped the Center for Digital Government's 2008 Digital States Survey after delivering the clearest evidence yet that electronic delivery of government services has matured.What about Indiana? It is hard to tell, because the announcement lists only the top 31 states (including 6 ties), and does not mention Indiana. The report itself is not yet available.To reduce energy costs and carbon emissions, Utah Gov. Jon Huntsman Jr. announced in June that most state offices would be closed on Fridays. With more than 800 state government services online -- many boasting high user adoption rates -- Utah could close physical offices statewide without inconveniencing citizens.
Paul Taylor, chief strategy officer for the center and a member of the Digital States judging panel, said Utah's move signals a tipping point for electronic government services.
"Utah demonstrates that you can close offices on a normal office day, and people can still conduct real business with their government," said Taylor. "This is what the ATM did for the banking industry. It reduced branch hours, but cash was still available. Ten years later, we're reducing government office hours, but government's still available."
[Thanks to Indiana Daily Insight for the tip.]
Posted by Marcia Oddi on September 29, 2008 07:19 AM
Posted to Indiana Government
Sunday, September 28, 2008
Law - Text of the bailout bill [Updated]
[Updated 9/29/08] Here is the 110-page, publicly accessible "Discussion Draft" posted by the WSJ.
Here is the same, via the NY Times, accompanied by a quick summary.
Posted by Marcia Oddi on September 28, 2008 03:32 PM
Posted to General Law Related
Ind. Law - "Law clerk job led to contacts with those shaping society"
IU’s Vice President of Engagement William Stephan writes today in the Indianapolis Star in an article that begins:
You might say I'm celebrating the 25th anniversary of my big break, which came late in the summer of 1983 as I began my third year at Indiana University School of Law at Indianapolis. That's when Marion Superior Court Judge Ken Johnson hired me as his bailiff and law clerk, opening the door to an often unpredictable, but ultimately rewarding career.A talented jurist with a love for the law, curious mind, delightful sense of humor and strong Christian faith, Ken served as a role model, mentor and friend to a very green kid who had few connections in Indianapolis. My work in the court connected me with some of our community's finest attorneys, dedicated public officials and a wide assortment of colorful characters and personalities.
Posted by Marcia Oddi on September 28, 2008 09:52 AM
Posted to Indiana Law
Courts - "Kenctucky Prosecutor says plea deal punishes philanthropist Robert Clarkson in DUI case"
Not Indiana, but interesting. Andrew Wolfson of the Louisville Courier Journal has a long report today that begins:
Driving drunk on Hurstbourne Parkway on June 12, Louisville insurance executive Robert Clarkson smashed his 2008 Mercedes into a motorcycle, breaking the cyclist's pelvis and nearly taking his life.
AdvertisementThe 67-year-old owner of the Robert H. Clarkson Insurance Co. was charged with DUI and felony assault -- the latter punishable by five to 10 years in prison.
But when Clarkson, who was not injured in the crash, appeared in Jefferson District Court the next month, the county attorney's office agreed to amend that felony to a violation -- careless driving -- which carries a maximum fine of $100.
Clarkson, a longtime philanthropist and civic booster, pleaded guilty to that charge, which is less than a misdemeanor, as well as to drunken driving, a traffic violation, and agreed to serve 30 days of home incarceration in his 6,877-square-foot, $1.7 million house in Anchorage.
Chief DUI prosecutor Bob Fleck said in an interview that he "agonized" over reducing the felony charge so drastically but decided to do it so the victim -- Rich Wiseman, 33, who may be permanently disabled -- can benefit from Clarkson's $3 million umbrella insurance policy.
Fleck said lawyers for Clarkson and Wiseman told him the policy excludes coverage for any acts that occur during commission of a felony or misdemeanor. He acknowledged that he did not read the policy himself. And court documents provide no details about the insurer.
Posted by Marcia Oddi on September 28, 2008 09:43 AM
Posted to Courts in general
Ind. Gov't. - Attorney General race heats up
Seth Slabaugh has a good story today in the Muncie Star-Press. Don't miss it. It concludes:
"I have literally represented over a thousand clients, and they hire me because I am a fighter and I win, and he's never prosecuted one case," Pence said of Zoeller. "Compare my resume to his and you make the decision. He was Dan Quayle's legislative aide for a long time and a sidekick to Carter for eight years."As an attorney for the U.S. Department of Justice, Pence fought oil companies over gas price gouging in the 1970s. As a federal prosecutor, she "put a lot of people in jail" for security fraud, banking fraud, commodity fraud, government contract fraud, bribery and tax fraud.
Representing the state of Indiana, Pence won a $14.2 million settlement in 2001 from Guide Corp. of Anderson over the killing of millions of fish in the White River.
Indiana Republican Party Chairman Murray Clark said that for the past eight years "Greg Zoeller has had only one client: the state of Indiana.
"His experience and knowledge of the office cannot be matched. In stark contrast, Linda Pence is running on her experience as a litigator, one who represents clients against whom Greg Zoeller has been fighting on behalf of Hoosiers. Side by side it's abundantly clear Greg Zoeller has exactly the right background to do the best job as our next attorney general."
Posted by Marcia Oddi on September 28, 2008 09:36 AM
Posted to Indiana Government
Ind. Courts - "Finances a factor in capital punishment"
Doulgas Walker has a long story today in the Muncie Star-Press on the use of the death penalty in the various counties. Some quotes:
The role that a county's financial status plays in whether a local prosecutor pursues a death sentence for an accused killer apparently depends on whom you ask -- and perhaps where you live.David Daly, Randolph County prosecutor since 1995, has yet to pursue capital punishment following one of his community's infrequent slayings.
In a largely agricultural county of about 25,000 people, Daly acknowledged whether Randolph County could afford the staggering costs -- perhaps going into the hundreds of thousands of dollars -- of staging a death-penalty trial might be a factor in any future decision.
"I would probably consider finances, unless it was the shooting of a judge or a police officer," which would likely make pursuit of a death sentence a foregone conclusion, he said.
Daly said it's likely he would consult with the county council about the financial impact of pursuing capital punishment.
As a young attorney, Daly spent five years working in the Marion County prosecutor's office, where some staff members specialized in death-penalty cases.
"They have so many more resources" than do prosecutor's offices in smaller counties, he noted.
That being the case, of 103 death sentences issued in Indiana since the state reinstituted capital punishment in 1977, a total of 45 have been issued in the state's two most populated counties, Lake (with 23 death sentences) and Marion (with 22).
Indiana's other 90 counties accounted for the remaining 58 death sentences.
(Many of those sentences were ultimately overturned on appeal, with most inmates being resentenced to lengthy, or life, terms. Over the past 31 years, 19 convicted killers have been executed in the Indiana State Prison's death chamber in Michigan City. About 15 inmates are now on death row.)
Posted by Marcia Oddi on September 28, 2008 09:27 AM
Posted to Indiana Courts
Law - "Companies increasingly adopt gay-friendly policies"
Dana Hunsinger reports today in the Indianapolis Star:
Large corporations are finding it increasingly important to create a welcoming environment for a diverse work force that makes it easier to recruit and keep talent and improve worker productivity.Baker & Daniels is among the leaders in that regard. This month it was given a 100 percent rating in the Washington, D.C.-based Human Rights Campaign's Corporate Equality Index, which looks at fair treatment, practices and policies in the workplace for gay, lesbian, bisexual and transgender employees.
Baker & Daniels is the only law firm in Indiana to boast the rating and one of just three companies statewide. Cummins and Eli Lilly and Co. also made the list.
To earn a score of 100, companies had to go above and beyond, offering not only domestic partner benefits, but policies barring discrimination based on sexual orientation and gender identity. Companies on the list offer affinity groups and diversity training that covers sexual orientation and gender identity. They also have supportive gender transition guidelines. Some companies even pay for hormone replacement and surgery for transgender employees.
"Law firms across the country are starting to take these things more seriously, and I like to think we are progressive on this in Indiana," said Tom Froehle, chair and chief executive partner at Baker & Daniels. "This rating is just one piece of evidence we're ahead of the curve." * * *
While Indiana is progressing with three companies on the list, it isn't the best in the Midwest. This year, Illinois has 22 on the list; Ohio, nine; and Michigan, eight. Kentucky has one.
Posted by Marcia Oddi on September 28, 2008 09:23 AM
Posted to General Law Related
Courts - "The issues include the ability to sue over faulty but federally regulated drugs; dirty words on TV; and Navy sonar"
"Supreme Court opens new term" is the headline to David G. Savage's story today in the LA Times that begins:
WASHINGTON -- Against the backdrop of a tight presidential election that probably will shape its future, the Supreme Court goes back to work this week, facing cases on whether the government can forbid foul language on television, whether drug makers can be sued by injured patients, and whether environmentalists can protect whales off California from the Navy's sonar.The court also will decide whether high officials can be held liable for violations of rights that took place on their watch. In a Los Angeles case, the justices will decide whether the former county district attorney can be sued by a man who was wrongfully convicted of murder based on the testimony of a jailhouse informer with a record of lying. And in a New York case, the justices will decide whether John Ashcroft can be held liable for the arrest and alleged mistreatment of Muslim immigrants after the Sept. 11 attacks, when he was attorney general.
On Monday, the justices will meet behind closed doors to sift through more than 2,000 appeal petitions that have piled up over the summer. They are expected to announce Tuesday that they will hear a handful of those cases.
On Oct. 6, the court will begin hearing oral arguments. First up is a case that tests whether the makers of "light" and "low tar" cigarettes can be sued for allegedly seeking to fool smokers into thinking these cigarettes are safer.
Posted by Marcia Oddi on September 28, 2008 07:44 AM
Posted to Courts in general
Saturday, September 27, 2008
Courts - "Pre-emption Looms Large in Supreme Court's Upcoming Business Cases"
So writes Marcia Coyle in her lengthy National Law Journal article to be dated Sept. 29th. It begins:
The Roberts Court's affinity for issues close to the heart of the nation's business community will continue into the October 2008 U.S. Supreme Court term as the justices take on major questions concerning federal pre-emption of state tort suits, environmental regulation, workplace discrimination, arbitration, pensions and antitrust.Further on in the article:The Court has agreed to decide 15 business-related cases thus far, noted Mark I. Levy, chairman of the Supreme Court and appellate advocacy practice in the Washington office of Atlanta's Kilpatrick Stockton. "That's a pretty impressive number, about 30 to 40 percent of the docket, and a number in line with what the Court had last term and where it was 10 years ago," he said. "That is a trend that is continuing."
The argument docket, which is likely to increase in number after the justices' summer conference today, is also notable for the type of business cases not there yet, but which have been something of a staple in recent terms: patent, securities and tax. And what was missing last term has returned: environmental cases -- significantly, four very different ones -- and an antitrust challenge.
"There also are a significant number of labor and employment cases on the docket," said Levy, adding, "I think that is a trend and probably reflects the underlying circumstances of our society and the legal system. We see a lot of ERISA [Employee Retirement Income Security Act] and age discrimination cases as the work force ages."
The four environmental cases on the docket thus far are:• Summers v. Earth Island Institute, No. 07-463, stemming from a lawsuit against the U.S. Forest Service over regulations limiting notice, appeals and public comment for certain activities.
• Winter v. Natural Resources Defense Council, No. 07-1239, in which the Navy, which did not complete an environmental impact statement, challenges an injunction on sonar training exercises that could harm marine mammals.
• Entergy Corp. v. EPA, nos. 07-588, -589, -597, raising the issue of whether the Clean Water Act authorizes the Environmental Protection Agency to weigh costs and benefits of systems to be used at water cooling structures rather than using the most advanced technology available.
• Coeur Alaska Inc. v. Alaska Conservation Group, nos. 07-984, -990, in which a gold mining company and Alaska challenge a bar against an Army Corps of Engineers permit for discharging toxic tailings into the Lower Slate Lake.
John Echeverria, director of Georgetown University Law Center's Environmental Law & Policy Institute, noted that environmental groups won in the lower courts in all four cases and he voiced pessimism about the justices' rulings.
"The Supreme Court increasingly has become the place where environmental laws go to die, and the coming term doesn't look like it's going to be any more positive for the environment," he said. "Most interesting," said Echeverria, is Winter -- a dispute between national security concerns and environmental protection -- and Entergy, raising a "fundamental question" about cost-benefit analysis.
Posted by Marcia Oddi on September 27, 2008 06:31 PM
Posted to Courts in general
Friday, September 26, 2008
Ind. Courts - Two Hoosiers on the 7th Circuit? [Corrected - Three Hoosiers]
Maureen Groppe of the Star Washington Bureau is reporting:
WASHINGTON -- President Bush has nominated Indiana judge Philip P. Simon to the 7th U.S. Circuit Court of Appeals, the White House announced Friday.Already on the Court, Judge Tinder. Plus Judge Manion, recently retired, but continuing to write opinions.Simon has been a federal district court judge for Northern Indiana since 2003.
If confirmed by the Senate, Simon would replace Judge Kenneth F. Ripple who has retired.
The 7th Circuit is the last stop before the U.S. Supreme Court for cases from Indiana, Illinois and Wisconsin.
Simon earned his law degree from the Indiana University School of Law in 1987. His professional experience includes heading the criminal division for the U.S. Attorney's Office for the Northern District of Indiana and teaching at Valparaiso University School of Law.
[Corrected at 4:29 PM] Just received this message from "msk" - "I realize that where I live (Northwest Indiana - Rensselaer) is not considered an actual part of the Hoosier State, perhaps because we are part of the Chicago metropolitan area ---- but I have not given up my Indiana residency. "
So here is the ILB's corrected copy, with apologies: Hoosiers already on the Court, Judge Kanne and Tinder. Plus Judge Manion, recently retired, but continuing to write opinions.
Posted by Marcia Oddi on September 26, 2008 02:43 PM
Posted to Indiana Courts
Courts - "If you cannot afford an attorney, one will be appointed for you."
The Brennan Center on 9/16/08 published the 46-page "Eligible for Justice: Guidelines for Appointing Defense Counsel.". From the description:
For more than four decades, the Supreme Court has been clear: the Constitution requires states to provide a lawyer to people facing criminal charges who are unable to afford their own counsel. Unfortunately, neither the Supreme Court, nor any other source, has detailed how communities should determine who can afford counsel and who cannot. As a result, eligibility is determined differently almost wherever one looks: some communities don't have any official screening processes at all, while others apply widely varying criteria and procedures.Re Indiana's standards, see the 2006 publication, "Standards for Indigent Defense Services in Non-Capital Cases."The result has been a policy disaster.
Without fair standards for assessing eligibility, some people who truly cannot afford counsel without undue hardship are turned away. This may be because a relative posted bond for them, or they have a house or a car that they could sell to pay for a lawyer. pull quoteYet these arbitrary assumptions about who can pay and who cannot are devastating to families and communities. Families that truly cannot afford to pay for counsel may have to go without food in order to pay legal fees. Wage-earners forced to sell the vehicle they use to commute to work, in order to pay for counsel, may lose their jobs. People who simply cannot come up with the necessary resources end up trying to represent themselves, often pleading guilty because they are not aware of their rights.
On the other hand, some individuals receive counsel who should not. In these times of fiscal austerity, every dollar spent representing someone who can afford to pay for counsel robs resource-poor indigent defense systems of money that could be better spent representing people who are truly in need. The result is that indigent defense systems already stretched to their breaking points—with enormous caseloads for each attorney, and no funding for essential functions such as investigators and experts—are stretched further. This, too, results in constitutional violations, as people entitled to adequate representation end up getting a lawyer who cannot provide them with a meaningful defense.Finally, without clear guidelines for how to determine who should be appointed counsel, decisions whether to appoint counsel hang on the serendipity of where an individual lives, the personal characteristics of the decision-maker, institutional conflicts of interest, or any of the other improper factors that substitute for more reliable standards and procedures.
I'm told that in at least some Indiana counties little effort is made to determine eligibility before a public defender is assigned. The ILB would be interested in comments from readers on this point.
See also this Sept. 19th ILB entry headed: "Suits, Legislation Over a Civil Right to Counsel Grow Across U.S." One of the stories cited in the entry reports: "CROWN POINT | Support is growing among Lake County officials to thin out the ranks of lawyers defending at public expense indigent people accused of minor crimes."
Posted by Marcia Oddi on September 26, 2008 02:09 PM
Posted to Courts in general | Indiana Courts
Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)
For publication opinions today (2):
In Samuel Hardley v. State of Indiana , a 17-page, 2-1 opinion (including a 6-page dissent), Judge Bradford writes:
Hardley contends that the State failed to produce sufficient evidence to sustain his conviction for criminal confinement and that that conviction and his battery conviction violate prohibitions against double jeopardy. The State cross-appeals, contending that the trial court erred in ordering sentences Hardley received in two different cause numbers to be served concurrently. We affirm in part, reverse in part, and remand with instructions. * * *In Zeus B. Eaton v. State of Indiana , an 8-page opinion, Judge Bradford writes:Mathias, J., concurs.
Sullivan, S.J., dissents with opinion. [that concludes] For the reasons stated I would vacate the battery conviction but would affirm the conviction and sentence upon the confinement conviction and would also affirm the concurrent sentences imposed in the disparate cause numbers.
Appellant/Respondent Zeus Eaton challenges the trial court‟s partial revocation of his probation by alleging that he did not knowingly, intelligently, and voluntarily waive his right to counsel in the probation revocation proceeding. We reverse and remand. * * *NFP civil opinions today (3):We conclude that the record does not establish that Eaton waived his statutory right to counsel. We further conclude that, even if he had waived his right to counsel, he was not adequately advised before doing so.
Gaia Wines, Inc. and Angee D. Walberry, et al. v. Heartland Community Bank, et al. (NFP) - "Because we conclude that the record would have supported a finding that Heartland performed in a reasonable time, we therefore affirm the trial court’s grant of Heartland’s motion to enforce the Agreement and its denial of the Gaia parties’ motion to correct error. We dismiss the appeal in part and affirm the judgment of the trial court in part."
Gordon and Phyllis Broyles v. The Boad of Commissioners of Henry Co. (NFP) - "The Broyleses additionally claim that the trial court erred in failing to award interest pursuant to Indiana Code section 32-24-1-11(d)(6) (2002). Because this issue was not presented to the trial court in the proceedings below, we deem it waived and decline to consider it for the first time on appeal. The record demonstrates that the question of interest was not argued at trial and that the trial court made no findings or conclusions on this issue. Indeed, apart from a single reference to a proposition of law regarding interest awards, the Broyleses proposed no findings or conclusions relating to this topic, nor did they suggest or include an award of interest in their proposed judgment. The Broyleses’ claim on this issue is therefore waived. See Poulard v. Lauth, 793 N.E.2d 1120, 1123 (Ind. Ct. App. 2003).
"III. Conclusion. Having concluded that the Broyleses’ challenges to the trial court’s award of damages are without merit, and having determined that their claim for interest is waived, we affirm the
trial court’s award in the amount of $45,007."
Jamie Wicker v. Rodney McIntosh, Rebecca Goebel, et al. (NFP) - "According to Wicker‟s complaint, on September 13, 2003, he was riding in a golf cart driven by Rodney and/or Rebecca when he was thrown from the cart, suffering severe and permanent injury. * * *
"Wicker contends that the trial court abused its discretion in dismissing his claim pursuant to Indiana Trial Rule 41(E) * * * We will reverse a Trial Rule 41(E) dismissal for failure to prosecute only in the event of a clear abuse of discretion. * * *
"Under the circumstances of this case, we conclude that the trial court abused its discretion in immediately imposing the harshest possible sanction of dismissing Wicker‟s lawsuit altogether. While we certainly do not condone the dilatory tactics of Sciantarelli, we believe that dismissal would unfairly penalize Wicker for the actions of his attorney. * * *
"Finally, we believe that dismissal under the circumstances of this case would clearly run counter to Indiana's oftstated policy of having cases decided on their merits whenever possible. In summary, the effect of a dismissal here would be to punish Wicker for the sins of his attorney, a result we do not wish to endorse. We reverse and remand for reinstatement of Wicker‟s cause of action."
NFP criminal opinions today (4):
Damian Jones v. State of Indiana (NFP)
David Farrell v. State of Indiana (NFP)
Walter Rowley v. State of Indiana (NFP)
Bruce L. Morgan v. State of Indiana (NFP)
Posted by Marcia Oddi on September 26, 2008 01:35 PM
Posted to Ind. App.Ct. Decisions
Ind. Gov't. - When are meeting minutes public documents?
An interesting question was posed yesterday on the national FOIA listsevr - When are meeting minutes public documents? The details:
Q - We have an odd law in Utah that keeps meeting minutes as "protected" documents until they are officially approved by the government body. I need examples of states where the minutes are readily available after a meeting and are considered a public document.This is an issue I have run into in Indiana on occasion. Here are some of the answers posted to the listserv from other states - these are all quotes:
A - Oklahoma’s attorney general, Drew Edmondson, told The Oklahoman in 2005 that minutes become records available to the public when they are first created. He said public bodies often mistakenly believe they can withhold minutes from the public until the minutes are approved by the public body. “It’s a document, and once it’s created, it’s subject to the Open Records Act,”What about Indiana? From opinions of the Indiana Public Access Counselor:A - In Kansas meeting notes, recordings and draft versions prior to approval by the governing body would be drafts. Drafts normally are excluded from “mandatory disclosure” under the Kansas Open Records Act. I suppose even drafts would be subject to “mandatory disclosure” if they were to be cited during an open meeting. Meeting minutes would not be considered such until approved by the governing body as accurately recording the previous meeting’s discussions and decisions. The Utah law does not seem odd at all to me. Sometimes, errors happen, especially if a meeting is not recorded on tape or digitally and the clerk is taking notes only – the governing body should have an opportunity to correct errors so that official minutes accurately document its decisions and how it reached them. No confusion or dispute on this that I know of here in Kansas.
A - I've heard this issue come up every now and then in different states, and it's all over the map. From what I can tell, and I might not have all of this correct, some states require by law that the minutes be recorded and provided to the public promptly, within a reasonable time, or without delay (e.g., California, Florida, Indiana, Alabama, Louisiana, New Jersey, West Virginia). In Arizona minutes or a recording are required to be provided to the public three working days after the meeting. Some states require disclosure within 30 days. In Hawaii, Mississippi and Idaho, draft minutes (or even "raw notes" in Idaho) are specifically named as subject to public disclosure. In Illinois, it's public within seven days of formal approval by the body, and in Michigan they separate between draft (eight days) and approved minutes (five days from approval).
4/16/04 (04-FC-45) - "The draft minutes of a governing body are a public record of the public agency and are thus subject to disclosure upon request. There is no exemption available to withhold production of a public record because it is in “draft.” Accordingly, if your request sought the unapproved or draft minutes, the Trustee would be obligated to provide them, and because they are apparently immediately available, the Trustee could not reasonably be heard to delay production."2/28/05 (05-FC-23) - The Department wrote you in denying you the record that “Minutes to Board meetings are not public records until approved by the Health Board, per Dr. Louck.” This determination that unapproved minutes are not public records was not consistent with the plain language of the APRA. Hence, the Department’s denial of the rough draft minutes or notes of the meeting was in violation of the APRA. You had the right to inspect the notes of the meeting and to copy them. As this office has frequently stated, a public agency may mark draft minutes as “draft” or “subject to approval” to assuage the concern that its draft minutes will be misconstrued as adopted minutes of the governing body.
4/10/06 (06-FC-51) - "Minutes or memoranda from a public meeting, even in draft form, do not fit the definition of “advisory or deliberative material that are expressions of opinion.” Draft minutes are statements of what transpired at a public meeting. This office has stated many times that such draft minutes are not exempt from disclosure. The minutes may not be denied merely because they have not been approved by the Board. The refusal to provide you with an electronic copy of unapproved minutes constituted a denial of access in violation of the Access to Public Records Act."
6/17/08 (08-FC-134) - To the contrary, my predecessors and I have repeatedly advised and opined that draft documents are public records just as completed or finalized documents are public records. See Opinions of the Public Access Counselor 01-FC-65 and 07-FC-45 for a discussion of draft meeting minutes. The City is free to mark the list with a “draft” designation, but the City may not withhold the list on the basis it is a draft or unapproved document.
Posted by Marcia Oddi on September 26, 2008 10:27 AM
Posted to Indiana Government
Ind. Courts - 7th Circuit decides one Indiana case today
In U.S. v. Derrik Hagerman and Walbash Env. Tech. (SD Ind., Judge Hamilton), a 5-page opinion, Judge Posner dismisses the appeal, writing:
The defendants were convicted of criminal violations of the Clean Water Act, and Wabash was ordered to pay $250,000 in restitution to a federal Superfund account and was placed on probation (18 U.S.C. § 3563) for five years. Corporate probation has been called “a flexible vehicle for imposing a wide range of sanctions having the common feature of continued judicial control over aspects of corporate conduct.” * * * The government, contending that Wabash had violated the conditions of probation by refusing to begin paying the restitution (and a $4,000 special assessment), that had been ordered, petitioned the district court for relief, as authorized by 18 U.S.C. § 3563(c). The court dismissed the petition after the government and Wabash resolved their differences by Wabash’s agreeing to start paying restitution and to furnish specified information concerning the company’s finances. Nevertheless, Wabash has filed an appeal to this court from the order of dismissal, as has its codefendant, Hagerman.Hagerman’s appeal must be dismissed because he was not a party to the probation-violation proceeding and no order naming him was entered. Wabash’s appeal must also be dismissed, apart from doubts that Wabash was aggrieved by the dismissal of the probation-violation proceeding. Wabash has no lawyer in this court (it was represented in the district court by a lawyer who has since withdrawn). Hagerman, who is not a lawyer, claims the right to represent Wabash because he “is not only a major stockholder [presumably he means ‘member,’ since Wabash is an LLC, not a corporation] but is [also the] current President of [Wabash].” And it was Hagerman who filed this appeal on behalf of Wabash as well as himself. He complains about the deal that Wabash struck with the government, making this like an appeal by a party that agrees to a settlement but later thinks better of his decision and tries to get the appellate court to rescind it.
A corporation is not permitted to litigate in a federal court unless it is represented by a lawyer licensed to practice in that court. * * * A limited liability company is not a corporation, but it is like one in being distinct from a natural person. * * *
We have not had occasion to rule on whether, like a corporation, an LLC can litigate only if represented by a lawyer. * * *
[The opinion concludes that "the privilege of pro se representation" is denied to corporations, limited liability companies, and partnerships.]
Posted by Marcia Oddi on September 26, 2008 10:11 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Law - "County abortion regulations closely watched in Indiana"
Judy Keen reports in USA Today:
Abortion opponents in Indiana are encouraging passage of regulations at the county level that abortion-rights groups say might be the leading edge of a nationwide effort to limit access to the procedure.For background, see these ILB entries on Vanderburgh County, and these on Allen County from 9/22/08, 9/5/08, 9/4/08 and 9/3/08.Two Indiana counties have passed ordinances that require doctors who perform abortions to have the authority to admit patients at local hospitals. A third county is considering a similar measure.
Some abortion clinics are staffed by doctors who are based elsewhere and are unlikely to have admitting privileges at local hospitals, so the rules present a new obstacle for abortion providers.
"Absolutely, it's a new strategy," says Mike Fichter, president of Indiana Right to Life. The ordinances ensure that women with complications after abortions can quickly get medical care, he says, but he hopes they also make abortions harder to get. * * *
Action so far in Indiana:
• Vanderburgh County commissioners last month voted unanimously to require doctors who perform abortions in the county to have admitting privileges there or in an adjacent county.
The county has no abortion clinic. Mary Ellen Van Dyke of Vanderburgh County Right to Life, says the measure was proposed after the Indiana Legislature failed to pass a similar law this year.
• Dubois County, which has no abortion clinic, passed the regulation last month. "We want to get out ahead of it where we can prevent" one from opening, says Commissioner Larry Vollmer.
• In Allen County, where there is an abortion clinic staffed by a doctor from another county, commissioners haven't scheduled a vote. They are considering broadening a proposed ordinance to include all "itinerant" medical procedures such as laser eye surgery, Commissioner Nelson Peters says.
If Allen County votes to require hospital admitting privileges, her group would consider legal action, Mizrahi says. The group says the ordinance would encroach on state authority.
Posted by Marcia Oddi on September 26, 2008 09:59 AM
Posted to Indiana Law
Ind. Courts - "Judge to resume Muncie-Delaware County Drug Task Force hearings"
Rick Yenser has another report today in the Muncie Star-Press on issues surrounding the Muncie-Delaware County Drug Task Force property seizures. Here is a list of some earlier ILB entries.
Posted by Marcia Oddi on September 26, 2008 08:00 AM
Posted to Indiana Courts
Thursday, September 25, 2008
Ind. Courts - "New Albany attorney sentenced to year in prison for sexual battery" [Updated]
Matt Thacker of the New Albany News & Tribune reports in a lengthy story that begins:
A New Albany attorney was sentenced to one year in prison after a Harrison County judge threw out his plea agreement and accused him of trying to “manipulate the system.”Here is a list of earlier ILB entries on this case.Anthony J. Wallingford, 39, pleaded guilty Wednesday night to class D felony sexual battery for touching a 16-year-old girl’s breasts with his hands and mouth in April 2007 in Elizabeth. Harrison County Superior Court Judge Roger Davis sentenced Wallingford to one year in prison and two years probation.
In the original plea agreement filed Aug. 8, Wallingford pleaded guilty to the same charge but could not have been sentenced to more than 120 days in jail.
Davis said he was prepared to accept the plea until he read the pre-sentencing report. In the report, a probation officer said Wallingford told her that he was “not really guilty” and that he “didn’t grab (the victim) for sexual gratification” as is required for a sexual battery conviction.
[Updated 9/26/08] Here is Harold J. Adams' story today in the LCJ.
Posted by Marcia Oddi on September 25, 2008 02:34 PM
Posted to Ind. Trial Ct. Decisions
Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP); Tax Court issues one
For publication opinions today (1):
In Emma Smith v. Gary Public Transportation Corp. , a 7-page opinion, Judge Barnes writes:
Smith raises several issues. However, we address one dispostive issue, which we restate as whether the trial court properly granted GPTC’s motion to dismiss because it lacked subject matter jurisdiction. * * *NFP civil opinions today (2):“The Indiana Worker’s Compensation Act (“the Act”) provides the exclusive remedy for recovery of personal injuries arising out of and in the course of employment.” Although the Act bars a court from hearing any common law claim brought against an employer for an on-the-job injury, it does permit an action for injury against an “other person” provided the third-party is neither the plaintiff’s employer nor a fellow employee.
Smith contends that although GPTC was her employer, she was permitted to sue GPTC because it was acting as an “other person” by self-insuring for purposes of uninsured and underinsured motorist liability. * * *
We conclude that a self-insured employer is not an “other person” for purposes of IC 22-3-2-13. In addition to limiting suits against employers and fellow employees, this statute also allows an employer or worker’s compensation insurer to attach a lien to any damages the injured employee received from the third party. “The purpose of the statute is to make the employer or its carrier whole and prevent a double recovery by the worker.” Walkup, 702 N.E.2d at 715. Requiring GPTC to pay twice—once as an employer and once as an insurer—does not advance the policy of Indiana Code Section 22-3-2-13. Further, if we were to allow Smith to recover underinsured motorist payments directly from GPTC, GPTC would be entitled to a lien on those proceeds so as to prevent a double recovery for Smith, who has already received worker’s compensation benefits. We do not interpret the statute in that way. * * *
GPTC is not an “other person” pursuant to IC 22-3-2-13. Therefore, the trial court properly granted GPTC’s motion to dismiss based on the lack of subject matter jurisdiction. However, because the trial court lacked subject matter jurisdiction it could not address the merits of the case and grant GPTC’s motion for summary judgment. We affirm in part and reverse in part.
Eric Goetz, Eric Goetz Master Building, Inc. v. Christopher and Beth Boyer (NFP) - "The Boyers petition for rehearing * * * The Boyers point out on rehearing that our recalculation of the markup of the contract price is erroneous. * * *
"Although this recalculation makes it unnecessary for the reversal in part and remand, our interpretation of the contract and substance of the opinion does not change. We affirm the substance of our earlier decision, but due to this recalculation the reversal in part is no longer necessary. The opinion of the trial court is affirmed in all respects. We affirm."
William Pettit v. Steve Webb and AMCO Ins. Co., d/b/a Allied Property and Casualty Ins. Co. (NFP) - "Issue. Whether an action for spoliation of evidence can be maintained against an alleged tortfeasor’s liability insurance company for failing to preserve evidence that was in the possession of the alleged tortfeasor.
"Here, Webb, the named defendant to the underlying litigation, is the person who altered or destroyed the relevant evidence. Thus, it is a first party, the alleged tortfeasor, who allegedly destroyed or discarded evidence. As noted in Gribben, the remedies under Indiana law for first-party spoliation include an inference that the spoliated evidence was unfavorable to the party responsible, various sanctions under Indiana Trial Rule 37(B), criminal prosecution, and various penalties including disbarment if attorneys are involved in the destruction or concealment of evidence. Id. at 351. Because Pettit will have remedies available to him if spoliation by Webb is established, we decline the invitation to expand the language of Thompson and instead choose to follow the language and direction of our Supreme Court in Gribben."
NFP criminal opinions today (6):
Ronald M. Murphy v. State of Indiana (NFP)
Myron Larry v. State of Indiana (NFP)
Kenneth Stewart v. State of Indiana (NFP)
DaShawn Works v. State of Indiana (NFP)
Robert Spears v. State of Indiana (NFP)
Timothy Dion Hampton v. State of Indiana (NFP)
Tax Court's for publication opinions today (1):
SAC Finance, Inc. v. Indiana Dept. of State Revenue - "The issue for the Court to decide is whether SAC is entitled to the remainder of its requested sales tax refund pursuant to Indiana Code § 6-2.5-6-9. * * *
"Based on the foregoing reasons, SAC cannot write off as bad debt more than what it actually paid for the installment contracts at issue. As a result, summary judgment is GRANTED in favor of the Department and AGAINST SAC. The parties shall bear their own costs."
Posted by Marcia Oddi on September 25, 2008 02:13 PM
Posted to Ind. App.Ct. Decisions
Law - "In scattered cases, state regulation of reproductive rights remains a part of the legal culture"
Dan Slater has an interesting article today in the Wall Street Journal, beginning with discussion of forced sterilization for the "feeble-minded" in earlier times and then continuing:
Following the horrors of eugenics in Nazi Germany, the sterilization movement dwindled.Yet in scattered cases, state regulation of reproductive rights remains a part of the legal culture -- now amid very different circumstances. Just this month, for example, a judge in Texas ordered a woman, as a condition of her probation, to stop having children after her daughter was badly abused. The order, by Judge Charlie Baird, is difficult to enforce and possibly unconstitutional. It reflects the willingness of some judges to push the limits of punishment in ways that hark back to a time before a series of landmark Supreme Court decisions elevated individual rights.
In other areas, too, the impulse behind a law can linger, in society and in the courtroom, long after the law itself has fallen into disfavor or disuse. For a long time, the state asserted control over who could marry whom. It was only in 1967 that the Supreme Court struck down Virginia's anti-miscegenation law, giving constitutional protection to interracial marriage -- and creating a broader social assumption that marriage in general was a private matter. Three decades later, many states still resist same-sex marriage.
Similarly, the rationale behind forced sterilization is making its way back into the courts in the form of no-pregnancy orders, in small numbers and often overturned on appeal. In 1999, after finding a mentally retarded woman guilty of neglecting a dependent, in connection with the death of her infant son, a state court in Indiana ordered her not to become pregnant as a condition of her eight-year probation. A state appeals court struck down the no-pregnancy condition, ruling that it violated the woman's "privacy right of procreation" and that the goal of preventing injury to a child could be served by less-restrictive means.
Posted by Marcia Oddi on September 25, 2008 09:22 AM
Posted to General Law Related
Law - "Tech activist takes on governments over 'copyrighted' laws"
Updating these earlier ILB entries on making building codes and similar documents available online, CNET's Declan McCullagh has a great column today that begins:
SEBASTOPOL, Calif.--From a corner of a nondescript office building at the edge of wine country, Carl Malamud is masterminding an electronic guerrilla war against governments across the nation.Most geeks tend to be a bit obsessive, and Malamud is no exception. He's devoted his life to liberating laws, regulations, court cases, and the other myriad detritus that governments produce daily, but often lock up in proprietary databases or allow for-profit companies to sell for princely sums.
Posted by Marcia Oddi on September 25, 2008 08:53 AM
Posted to General Law Related
Law - Article titled "What states can and should do to reduce illegal immigration"
Updating this ILB entry from Sept. 18th, headed "Courts - 9th Circuit upholds Arizona immigration law imposing employer sanctions," a law professor, Kris W. Kobach (University of Missouri at Kansas City - School of Law) has written a law journal article, "Reinforcing the Rule of Law: What States Can and Should Do to Reduce Illegal Immigration" (Georgetown Immigration Law Review, Vol. 22, 2008). It is available via SSRN. Prof. Kobach indicates that he served as "Attorney General Ashcroft’s chief adviser on immigration law and border security" and is currently "counsel advising the state of Arizona in the defense of illegal-immigration-related statutes and ordinances."
Particular interesting is the discussion beginning at p. 7 of the article. A quote:
What follows is a summary of eight areas in which states or cities can constitutionally act in the field of immigration. Those eight areas are:A. Denying public benefits to illegal aliens;In all of these areas, there are three important restrictions that must be built into any state statute if it is to conform to the requirements of federal law and avoid preemption: (1) the statute must not attempt to create any new categories of aliens not recognized by federal law; (2) the statute must use terms consistent with federal law; and (3) the statute must not attempt to authorize state or local officials to independently determine an alien’s immigration status, without verification by the federal government.
B. Denying resident tuition rates to illegal aliens;
C. Prohibiting the employment of unauthorized aliens;
D. Enacting state-level crimes that mirror federal immigration crimes;
E. Enacting state-level crimes against identity theft;
F. Providing state and local law enforcement assistance to ICE;
G. Presuming illegal aliens to be flight risks for bail purposes;
H. Denying driver licenses to illegal aliens.
Posted by Marcia Oddi on September 25, 2008 08:28 AM
Posted to General Law Related
Ind. Law - More on: Brush up on your election law knowledge
Updating yesterday's ILB entry on elections, the Greencastle Banner Graphic has a comprehensive story today headed "Various deadlines for election nearing."
Posted by Marcia Oddi on September 25, 2008 08:23 AM
Posted to Indiana Law
Ind. Decisions - "Court: OK to use seized evidence in murder trial"
The Indianapolis Star has a brief story today on yesterday's COA decision in the case of Kenneth Allen v. State of Indiana (see ILB summary here - 2nd case):
The Indiana Court of Appeals on Wednesday upheld a ruling allowing prosecutors in the Kenneth Lee Allen death penalty case to use evidence seized from a house in his trial.Allen, 32, is accused of killing his mother and grandparents and burying them in concrete in the house's basement in 2005. His attorneys argued that an initial police search of the Eastside home, owned by his grandparents, was illegal because the officer lacked a warrant.
Marion Superior Court Judge Tanya Walton Pratt ruled against Allen in August 2007, putting his trial on hold while he appealed. The appeals court agreed with Pratt, saying Allen lacked standing to challenge the search because he was a trespasser.
Posted by Marcia Oddi on September 25, 2008 08:15 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - "Ruling in Plainfield's case considered key for Indiana communities with similar rules"
The COA decision yesterday in the case of John Doe v. Town of Plainfield, Indiana (see ILB summary here) is a front-page story today in the Indianapolis Star. Bruce C. Smith reports in a story that begins:
Plainfield won a key court decision Wednesday in the fight over banning sex offenders from parks, a case closely watched by other Indiana cities and towns with similar bans.Here is a list of earlier ILB entries on the Plainfield case. And from Oct. 6, 2006, here is an ILB entry on the Indianapolis ban, headed "Federal Court Rules Sex Offender Ordinance Unconstitutional."Although courts struck down an Indianapolis ban two years ago, Plainfield's ordinance is the latest in a series of narrower measures to survive court challenges. Lafayette and Michigan City enacted bans against individual sex offenders that have withstood court review.
Greenwood enacted a ban similar to Plainfield's two years ago, and a suit over the constitutionality of that ordinance has been on hold pending the outcome of the Plainfield case. Another suit is pending concerning a ban in Jeffersonville.
The Indianapolis ordinance prohibited convicted sex offenders within 1,000 feet of a park or school. A federal judge found the ordinance overly broad, noting there were few places in the city that were not within 1,000 feet of a park, a school, a playground or other children's gathering spot.
Indianapolis officials chose not to appeal the ruling, and the City-County Council has not discussed trying to draw up a new version that might survive in the courts.
On Wednesday, the appeals court, in a unanimous ruling, said that while Plainfield's ban does have a punitive aspect, the ordinance did not violate guarantees to the rights of life, liberty and the pursuit of happiness under the Indiana Constitution. The ruling upholds a March decision by Hendricks Superior Court Judge Robert Freese in favor of Plainfield.
ILB entries re other cities mentioned: Greenwood, 8/6/08; Jeffersonville - a long list; Michigan City - 9/5/06 7th Circuit; Lafayette - 2/24/05 7th Circuit.
Posted by Marcia Oddi on September 25, 2008 07:50 AM
Posted to Ind. App.Ct. Decisions
Wednesday, September 24, 2008
Law - "Authentic Legal Information in the Digital Age"
The American Association of Law Libraries has a long and very useful online resource collecting together many articles, including a number of mine, on the question: "Are government-hosted legal resources on the Web official and capable of being considered authentic?" The collection of materials is updated frequently.
Posted by Marcia Oddi on September 24, 2008 02:00 PM
Posted to General Law Related
Ind. Decisions - Court of Appeals issues 5 today (and 7 NFP)
Five "for publication" opinions today, including one holding constitutional an ordinance banning registered sex offenders from Plainfield's park:
In John Doe v. Town of Plainfield, Indiana , a 20-page opinion, Judge Robb writes:
The Town of Plainfield, Indiana (“Plainfield”), enacted Ordinance 16-2002 (the “Ordinance”) prohibiting individuals such as John Doe, who are listed on the Indiana sex and violent offender registry, from entering Plainfield’s parks and recreation areas. On appeal from the trial court’s grant of summary judgment in favor of Plainfield (as well as the denial of Doe’s motion for summary judgment), Doe argues the Ordinance violates Article I, Sections 1, 12, and 24, of the Indiana Constitution on its face. Concluding that the Ordinance does not violate any of these constitutional provisions on its face and that the trial court therefore properly granted summary judgment in favor of Plainfield and against Doe, we affirm. * * *For more on this case, start with this ILB entry from March 30th.Section 18 does not violate Article I, Sections 1, 12, and 24, of the Indiana Constitution on its face. As such, the trial court properly granted summary judgment in favor of Plainfield and against Doe.
In Kenneth Allen v. State of Indiana, a 14-page opinion on an interlocutory appeal, Judge Crone writes:
In this interlocutory appeal of the trial court’s denial of his motion to suppress evidence, Kenneth Allen raises the following dispositive issue: Whether he has standing to assert an unreasonable search and seizure claim pursuant to Article 1, Section 11 of the Indiana Constitution. We affirm. * * *In Dwight G. Fry v. Indiana Dept. of Correction, et al., a 7-page opinion, Sr. Judge Hoffman writes:Allen cannot establish standing to bring an Article 1, Section 11 claim merely by showing that he had “control” and “possession” over the Linwood residence. * * *
Allen was a trespasser. He did not have the owners’ permission to be on the premises. Any control and possession of the Linwood residence exercised by Allen was obtained by illegal means, i.e., the alleged murder of the rightful owners. He has made no showing that he had a legitimate right to control and possess the Linwood residence. Any expectation of privacy he had is not one that society is prepared to recognize as reasonable, and therefore he did not have an objective expectation of privacy in the premises. Accordingly, we conclude that the trial court did not err in finding that Allen lacked standing to challenge the searches of the Linwood residence pursuant to Article 1, Section 11 of the Indiana Constitution. [Allen is accused of killing his mother and grandaprents and burying them in the Linwood residence of the grandparents.]
Plaintiff-Appellant Dwight G. Fry (“Fry”) appeals from the trial court’s order entering a default judgment in favor of Defendant-Appellee Indiana Department of Correction (“DOC”). We dismiss this appeal.In Audrey Triplett v. USX Corp. , a 27-page appeal from the state workers' compensation board, Judge Crone writes:Although Fry raises an issue for our review, we find the following issue to be dispositive: whether Fry’s appeal should be dismissed because he failed to comply with the Indiana Rules of Appellate Procedure. * * *
The default judgment order was entered on January 14, 2008. Fry filed his notice of appeal on February 14, 2008, thirty-one days after the order was entered. Ind. Appellate Rule 9(A) provides that appeals from final judgments must be filed within thirty days after the entry of a final judgment. The rule provides that the time period is extended if a motion to correct error has been filed. However, the motion to reconsider is not the same as a motion to correct error and does not work to extend the time period for filing the notice of appeal. Ind. Trial Rule 53.4(A); Ind. Appellate Rule 9(A)(1). If the trial court has issued a final judgment, the party must file a motion to correct errors rather than a motion to reconsider.
Audrey Triplett appeals the decision of the Full Worker’s Compensation Board (“the Board”) finding that she failed to establish that she was permanently and totally disabled, that she sustained a five-percent permanent partial impairment (“PPI”) rating from an at-work accident that occurred September 20, 2001 (“the Accident”), and that she failed to prove that she sustained vertigo, or any resulting impairment from vertigo, as a result of the Accident. We affirm.In Nick and Patricia Peterson v. Robert and Karen Ponda , an 11-page interlocutory appeal, Judge Crone writes:
Nick Peterson and Patricia Peterson (collectively, “the Petersons”) appeal from the trial court’s denial of their motion for summary judgment. We affirm. * * *NFP civil opinions today (1):I. Assumption of Duty to Provide Safe Work Environment The Petersons’ main argument is that because the trial court determined in a prior order that Robert was an independent contractor at the time of his injury, the trial court had no option other than to grant the Petersons’ motion for summary judgment. * * *
We agree with the Pondas that the trial court’s determination that Robert was an independent contractor did not require the trial court to grant the Petersons’ motion for summary judgment. Whether the Petersons assumed a duty to provide Robert with a safe work environment calls for a different analysis than was necessary for the independent contractor determination. * * * In sum, the Petersons have failed to prove that they are entitled to judgment as a matter of law.
II. Premises Liability. The Petersons also argue that the trial court erred in failing to grant summary judgment in their favor on the Pondas’ premises liability claim. In premises liability cases, the determination of whether a duty is owed depends primarily upon whether the defendant was in control of the premises when the accident occurred. * * *
As discussed above, given the varying accounts of the events leading up to the accident, we agree with the trial court that summary judgment is likewise not appropriate on this issue. Affirmed.
KFT Realty, LLC v. Prestwick Community Svcs. (NFP) - "In summary, Prestwick Villas was successfully annexed into the Prestwick CSA pursuant to the 1995 Final Plat approved by the Hendricks County Plan Commission and recorded in the Hendricks County Recorders Office. When KFT purchased Prestwick Villas in 2003, it did so subject to the restrictions and obligations for which the Final Plat put it fairly on notice. Such included the obligation to pay assessments to Prestwick CSA for managing and maintaining the common areas of its property. The trial court did not err in so holding."
NFP criminal opinions today (6):
Yvonne Lynn Maxwell v. State of Indiana (NFP)
Steven Chad Thomas v. State of Indiana (NFP)
Joseph Smith v. State of Indiana (NFP)
Danny K. Wheeler v. State of Indiana (NFP)
Timothy W. Allen v. State of Indiana (NFP)
Bryan S. Harper v. State of Indiana (NFP)
Posted by Marcia Oddi on September 24, 2008 12:42 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "Ex-official is again a wanted man"
Bob Kasarda reports today in the NWI Times in a story that begins:
VALPARAISO | Just a few weeks after spending six months behind bars for sexual assault, former Hebron official and former Lake County Deputy Prosecutor Michael Haughee is once again a wanted man.The ILB has had a number of earlier entries on Mr. Haughee.Porter Circuit Court Judge Mary Harper signed an arrest warrant this week for Haughee based on accusations he has already violated the terms of his probation by failing to register as a sex offender or show up for treatment.
Haughee could not be reached Tuesday for comment and was not yet in custody at the county jail by midday.
When Haughee, a suspended attorney, was released from the Porter County Jail earlier this month, he was transported to Lake County to face a felony charge of stealing money from one of his law clients, said Neil Hannon, chief of Porter County Adult Probation.
After bonding out of jail in Lake County, Haughee decided to live in Dyer, but failed to register there as a sex offender, Hannon said.
He then decided to move south to Tell City, Ind., but needed permission from the court, Hannon said. Haughee is accused of changing his cell phone number, failing to provide the new number to his probation officer and moving to Tell City without the necessary permission.
Hannon said his department tracked Haughee down and met with him for two hours to explain his obligations.
Posted by Marcia Oddi on September 24, 2008 12:29 PM
Posted to Indiana Courts
Law - "Wine Lovers See Red Over State Laws That Restrict Home Delivery of Bottles"
"Wine Lovers See Red Over State Laws That Restrict Home Delivery of Bottles" is the headline to this story by David Kesmodel in today's Wall Street Journal (it is unclear to me whether the link will allow public access or not). Some quotes:
A handful of states in recent years have enacted laws that, while permitting direct shipments, include requirements that bar or discourage many out-of-state wineries from participating.One of the ILB's readers did just that ealier this month and sent the ILB this note:Besides Massachusetts, Arizona, Kentucky and Ohio have all passed laws that ban direct shipments from larger wineries, which disadvantages many vintners in big wine-producing states, such as California. Kansas and Indiana require residents ordering out-of-state wine to first visit that vineyard and show identification proving they're of legal drinking age; Kansas requires consumers to make the journey each time they order from the same vintner.
Critics say these laws fly in the face of a landmark 2005 Supreme Court ruling that struck down as discriminatory state laws that permit in-state wineries to ship to local consumers while denying the same right to out-of-state wineries. At the time, 26 states allowed some form of direct shipping from outside their borders. These were exceptions to the nation's so-called three-tier system, a patchwork of state laws that usually require alcohol producers to funnel their wares through distributors to reach a store or bar. Legislators created the system in the wake of Prohibition, partly to discourage overconsumption.
The high-court decision has been generally positive for the industry. But now some of the laws enacted after the decision are being challenged in several federal courts. A judge is expected to rule on a challenge to the Massachusetts law this fall.
Advocacy groups for wineries say local wine and liquor distributors have pressured state lawmakers into drafting laws that protect distributors, who fear a loss of revenue from direct shipping. "What the wholesalers really want is to preserve as much as they can their monopoly pricing power, which is considerable," says Bill Nelson, president of WineAmerica, a trade group for wineries. * * *
Bill Glick, a 58-year-old wine drinker in Columbus, Ind., says "it's criminal" his state requires him to visit a winery at least once before placing a direct-shipment order. He and his wife are fans of some small Napa and Sonoma Valley vineyards and can't find their wines at local retailers. "At some point, we're going to have to bite the bullet and fly out to California or New York or wherever and take a handful of affidavits that satisfy the Indiana code," says Mr. Glick, a financial consultant.
Spent part of last week in Napa Valley. Saw 6 wineries, 2 agreed to ship to home, 2 told us they would but not during the current heat, and 2 refused, but one (and the other 2) offered a local FedEx-Kinkos address for shipping to ourselves.More from the Journal:We paid the extra cost and carried most of it home in an insulated carry box provided for a price by one of the wineries.
The ability to ship wine to homes is important to many smaller winemakers, which often find it difficult to sign up with out-of-state distributors. Wineries' direct sales, including shipments ordered in tasting rooms, accounted for about $2.8 billion of the industry's more than $30 billion in revenue last year in the U.S., says Barbara Insel, head of Stonebridge Research, a Napa, Calif., market-research firm.Myriad shipping statutes affect an industry with an estimated 5,000 wineries in the U.S. And the direct-mail business is expanding. In the next month or so, Web retailer Amazon.com is expected to enter the fray when it begins selling wines from 26 states. Earlier this month The Wall Street Journal's marketing department also announced the launch of a direct-to-home wine service. * * *
Last month, the U.S. Court of Appeals for the Seventh Circuit in Chicago upheld part of Indiana's law. The court, reversing a district-court ruling, said Indiana could require Hoosiers to visit a winery at least once before being able to place direct-shipment orders. The appellate court agreed with the lower court, however, that Indiana couldn't bar shipments by wineries that have licenses in other states to distribute directly to retailers, a stipulation that covers many California, Oregon and Washington wineries.
Jim Purucker, executive director of Wine and Spirits Wholesalers of Indiana, a defendant in the Indiana case, says the group was "real happy" to see a key part of the state's law upheld. He defended Indiana's requirement that consumers visit vineyards before a direct shipment, saying, "Indiana is a conservative state. We want to make sure alcohol beverages are treated with special care and...that they don't get into the wrong hands."
Posted by Marcia Oddi on September 24, 2008 10:57 AM
Posted to General Law Related
Law - Brush up on your election law knowledge
The ABA has a website designed both for the public and for attorneys. The main page provides information for voters. There are also resources for trial judges, including an Election Law Manual and Video Lectures.
For Indiana-specific information, this link gives useful pointers on where to look in the Indiana statutes when various challenges are presented on election day. Too bad the statute links aren't live, but here is the general link to Title 3 - Elections..
And the Secretary of State's Election Division site has probably everything you would want to know.
Finally, if you haven't seen it, and no matter what side you favor, watch the HBO movie Recount.
Posted by Marcia Oddi on September 24, 2008 10:20 AM
Posted to General Law Related
Ind. Courts - "Review and Public Hearing of Proposed Reentry Court Rules"
The Problem-Solving Courts Committee of the Judicial Conference of Indiana has written proposed Reentry Court Rules and will submit these Rules to the Board of Directors of the Judicial Conference for adoption under IC 33-23-14 following a public comment period and public hearing. See this webpage for much more information.
Posted by Marcia Oddi on September 24, 2008 10:06 AM
Posted to Indiana Courts
Environment - "EPA Needs More Information and a Clearly Defined Strategy to Protect Air and Water Quality from Pollutants of Concern"
That is the title to a just published, 85-page report of the U.S. Government Accountability Office. Here is the summary of what GAO found:
Because no federal agency collects consistent, reliable data on CAFOs, GAO could not determine the trends in these operations over the past 30 years. However, using USDA data for large farms that raise animals as a proxy for CAFOs, it appears that the number of these operations increased by about 230 percent, going from about 3,600 in 1982 to almost 12,000 in 2002. Also, during this 20-year period the number of animals per farm had increased, although it varied by animal type. Moreover, GAO found that EPA does not have comprehensive, accurate information on the number of permitted CAFOs nationwide. As a result, EPA does not have the information it needs to effectively regulate these CAFOs. EPA is currently working with the states to establish a new national data system.The discussion of the federal court decisions begins on p. 48 of the Report.The amount of manure generated by large farms that raise animals depends on the type and number of animals raised, but large operations can produce more than 1.6 million tons of manure a year. Some large farms that raise animals can generate more raw waste than the populations of some U.S. cities produce annually. In addition, according to some agricultural experts, the clustering of large operations in certain geographic areas may result in large amounts of manure that cannot be effectively used as fertilizer on adjacent cropland and could increase the potential of pollutants reaching nearby waters and degrading water quality.
Since 2002, at least 68 government-sponsored or peer-reviewed studies have been completed that examined air and water quality issues associated with animal feeding operations and 15 have directly linked air and water pollutants from animal waste to specific health or environmental impacts. EPA has not yet assessed the extent to which these pollutants may be impairing human health and the environment because it lacks key data on the amount of pollutants that are being emitted from animal feeding operations.
As a first step in developing air emissions protocols for animal feeding operations, in 2007, a 2-year nationwide air emissions monitoring study, largely funded by industry, was initiated. However, as currently structured, the study may not provide the scientific and statistically valid data it was intended to provide and that EPA needs to develop air emissions protocols. Furthermore, EPA has not established a strategy or timetable for developing a more sophisticated process-based model that considers the interaction and implications of all emission sources at an animal feeding operation.
Two recent federal court decisions have affected EPA’s ability to regulate water pollutants discharged by CAFOs. The 2005 Waterkeeper case required EPA to abandon the approach that it had proposed in 2003 for regulating CAFO water discharges. Similarly, the 2006 Rapanos case has complicated EPA’s enforcement of CAFO discharges because EPA believes that it must now gather significantly more evidence to establish which waters are subject to the Clean Water Act’s permitting requirements.
Posted by Marcia Oddi on September 24, 2008 09:39 AM
Posted to Environment
Ind. Gov't. - Medicaid rulemaking proposal draws criticism from elder law attorneys
Here is the proposed rule. The Indiana FSSA posted a "Notice of Intent' to adopt a rule on 4/30/08. As its title indicates, the notice is just that, it does not spell out the specifics.
The FSSA posted the text of the proposal rule changes on 8/27/08, along with a notice that there would be a public hearing on Sept. 19th. The applicable law, IC 4-22-2-24, requires a minimum of 21 days between the time the text of a proposed rule is made available and the date of the public hearing. The date of the public hearing here met that standard, providing you include weekends in the count.
Today Ken Kusmer of the AP reports:
INDIANAPOLIS -- Advocates for the infirm and nursing homes say the state is rushing Medicaid changes that would leave some patients with no means to pay for care and some nursing homes forced to close their doors because of money given to family members or charities years ago.Tim Evans reports today in the Indianapolis Star:
AdvertisementUnder rule changes proposed by the Family and Social Services Administration, someone who gave $1,200 to a church each of the past five years, $500 to charity and $2,500 to help a financially strapped child might be penalized more than two months of Medicaid coverage for nursing-home care, elder-law attorneys say.
Also raising alarm has been the speed with which the agency has moved the rule toward adoption: A draft was published Aug. 27, and the agency held a public hearing last week. A public-comment period was set to close Friday, with the rule due to take effect Dec. 1.
"I don't think many people realize how devastating these proposed rules might be," Robert Smith, a Syracuse attorney who helps nursing homes get Medicaid or other payments for patients, said yesterday. "This thing is coming through like a runaway freight train."
Family and Social Services, in response to the criticism from the attorneys and others, has extended the public-comment process by one week to Oct. 3, state Medicaid Director Jeff Wells said. He added that the proposed rule is a draft subject to revisions and likely won't take effect before early next year.
"We'll take a look at all comments and concerns presented by the public," he said. "There's no interest on the part of the agency to move any faster than what the normal rulemaking process is."
Smith said that the rule changes could force already struggling nursing homes to turn away patients or to admit patients with no assurance that they'll get paid. Hospitals that normally would send patients to nursing homes for rehabilitation or extended care might find no one willing to take them.
"That starts to stack up residents in the hospitals," Smith said.
The agency is adopting the rules to comply with the Federal Deficit Reduction Act of 2005, aimed in part at preventing people with ample means from scamming the government into providing Medicaid or other forms of assistance.
Critics complain the rule changes at issue would dock Medicaid applicants for money they had given over the previous five years as gifts to children and grandchildren, to churches and charities, to family members with financial problems, or payments to relatives who help care for them unless they had entered into a legally binding personal services contract. * * *
The Indiana chapter of the National Academy of Elder Law Attorneys has sought a voice in the rulemaking for two years but charged the Indiana agency has been so focused on privatizing eligibility services for Medicaid, food stamps and other welfare that the agency put off action on the federally required rulemaking until recently.
"Seniors, disabled people, nursing homes and elder-law attorneys have all reported increasing difficulty reaching the people who make decisions about a Medicaid application, even by phone. Face-to-face meetings with a decision-maker are virtually nonexistent," the academy said in a statement.
The chapter submitted a 35-page brief at the public hearing, but has received no response, said Keith Huffman of Bluffton, the chapter's president.
"They have been totally consumed by the privatization process," he said. "This has gotten a back burner."
Wells, however, said that the first notice of the rulemaking was published in April and nursing homes and some other stakeholders have had voices in the process. He also said privatization of eligibility services had no effect on the rulemaking process.
Indiana is proposing new limits on Medicaid coverage for people seeking nursing home care if they used their money to make a contribution to a charity or paid a family member who is caring for them without a formal contract.What happens next? Additional written public comments may be submitted to FSSA by Oct. 3rd, according to the Star story. From the applicable statute:The state says its proposal is aimed at preventing fraud, which occurs when people who otherwise have the means to pay for care transfer those assets to relatives and others so they can qualify for Medicaid. Applicants would be considered eligible for the state's help once it's determined they meet the new financial thresholds.
Critics, however, say the new rules would be among the most punitive in the nation.
Indianapolis lawyer Scott R. Severns and other members of the Indiana Chapter of the National Academy of Elder Law Attorneys contend the changes would punish senior citizens for contributions they make to churches and charities. Even legitimate payments to family members who care for their elderly parents or relatives without a contract could disqualify applicants, he said. * * *
Indiana's director of Medicaid, Dr. Jeff Wells, said many of the changes are necessary to meet requirements of the federal Deficit Reduction Act of 2005, including extending the "look-back" period for many transactions to five years from three. At least 33 other states have already enacted new rules to meet the federal mandate, according to Donna Folkemer of the National Conference of State Legislatures.
The state Family and Social Services Administration, which administers the Medicaid program, conducted a public hearing on the changes last week and will accept written comments through Oct. 3.
Wells said the proposed rules are just a starting point.
"There are some areas where there is some flexibility, which is why the (public's) feedback is so critical," he said.
The new rules are needed to prevent "gaming" of the system by people who have the financial resources to pay for their own care, Wells said.
Under current regulations, he said, many older Hoosiers are able to hide or improperly shift assets so they qualify for Medicaid.
IC 4-22-2-27. Consideration of comments received at public hearingsThen FSSA will finalize the rule; if normal procedures are followed, the next the public will see of it is when the final text of the adopted rule is posted online.Sec. 27. The individual or group of individuals who will finally adopt the rule under section 29 of this chapter shall fully consider comments received at the public hearing required by section 26 of this chapter and may consider any other information before adopting the rule. Attendance at the public hearing or review of a written record or summary of the public hearing is sufficient to constitute full consideration. (As added by P.L.31-1985, SEC.16.)
The ILB has obtained a copy of the "brief submitted at the public hearing" by Keith P. Huffman, President of the Indiana Chapter of the National, Academy of Elder Law Attorneys, Dale & Huffman, Bluffton, IN. Access the brief here.
Posted by Marcia Oddi on September 24, 2008 08:54 AM
Posted to Indiana Government
Courts - New term of SCOTUS begins October 6th
Marcia Coyle of The National Law Journal reports today under the headlne "In the New Term, High Stakes for the High Court ." The long story begins:
Following a blockbuster term involving guns, Guantanamo Bay and the death penalty, the U.S. Supreme Court opens its doors to a new term with less drama, more cases initially and many challenges having potentially major implications for business, the environment, injured consumers, job bias victims and law enforcement.If the docket thus far appears to lack possible landmark cases, the term's drama level could change quickly after the justices hold their summer conference meeting on Sept. 29 in which they generally add cases from more than a thousand filed during the summer months. They also continue to add cases to the term's argument docket until about mid-January.
One case likely to raise the stakes considerably, if granted review, is perhaps the most significant voting rights case in decades -- Northwest Austin Municipal District Number One v. Mukasey, No. 08-322. The case challenges Congress' recent reauthorization of Section 5 of the federal Voting Rights Act of 1965, the heart of the landmark law that changed the voting landscape in America.
The justices will return in the new term to several areas of apparent strong, ongoing interest:
• Business is seeking federal pre-emption of state personal injury suits in the pharmaceutical drug and tobacco arenas.
• Employees and employers square off in two job bias cases, one involving retaliation and the other pregnancy leave and retirement credit.
• Sexual harassment in schools draws the justices into the interplay of two major discrimination statutes.
• And an unusually large number of environmental cases -- four -- will be argued, ranging from Navy sonar and its effect on marine mammals to the use of cost-benefit analysis in setting environmental standards.
• Among other issues, there also are "dirty words" in a Fox Television challenge; a free speech challenge involving a monument to the "Seven Aphorisms" of the Summum religion; liability-immunity issues for prosecutors and top federal officials; terror victim compensation lawsuits; and counsel representation in state clemency proceedings.
Posted by Marcia Oddi on September 24, 2008 08:47 AM
Posted to Courts in general
Tuesday, September 23, 2008
Ind. Decisions - Court grants transfer in two cases
The formal transfer list likely won't follow until next Monday, Sept. 29th, but the ILB has received advance notice of two cases granted transfer:
George Jackson v. State was granted transfer today, Sept. 23rd. Here is the ILB summary of the July 8th COA 2-1 opinion, re the validity of a search warrant.
Scottie R. Adams v. State was also transferred today, Sept. 23rd, according to the Clerk's docket. Here is the ILB summary of the July 25th COA opinion which held "Specifically, Adams argues that the trial court erred in instructing the jury on the offense of voluntary manslaughter when he was charged only with murder and that the trial court abused its discretion in denying his motion for a mistrial. Finding no error, we affirm the judgment of the trial court."
Posted by Marcia Oddi on September 23, 2008 05:33 PM
Posted to Indiana Transfer Lists
Environment - More on "Ban Near on Diverting Water From Great Lakes"
Gitte Laasby of the Gary Post-Tribune has just reported:
The Great Lakes Compact just passed the U.S. House of Representatives by a 390-25 vote.See this entry from earlier today.The Senate has already passed the Compact. This means the historic compact to prevent the diversion of water from the Great Lakes basin is headed to President Bush’s desk. He has previously said he’ll sign it into law
Posted by Marcia Oddi on September 23, 2008 12:42 PM
Posted to Environment
Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)
For publication opinions today (3):
In Roy Beatty and Vanda Beatty v. Liberty Mutual Insurance Group, et al , a 15-page opinion, Judge Najam writes:
[W]e consider only the question of whether the Beattys can maintain this action in the Marion Superior Court or whether this action must be dismissed because the same or a substantially similar action is pending in the Marion Circuit Court. We affirm. * * *In Anna Westlake v. State of Indiana , an 11-page (including a 4-page dissent), 2-1 opinion, Judge Mathias concludes:In sum, the Marion Superior Court properly dismissed the Beattys’ action against Liberty Mutual because an action that is substantially the same is pending in the Marion Circuit Court. Further, having affirmed the Marion Superior Court’s dismissal of the Beattys’ action against Liberty Mutual, we must also conclude that the Beattys lack standing against the remaining named defendants, none of whom injured the Beattys. As such, the Beattys lack standing to continue their action against the Insurance Defendants either individually or as a class action, and we affirm the Marion Superior Court’s dismissal of the Beattys’ complaint. We express no opinion on the Marion Circuit Court proceedings or whether the Beattys may seek to amend their complaint in that court.
For all these reasons, we remand this case to the trial court with instructions that it vacate Westlake’s sentence and impose a sentence of seven years imprisonment for Class B felony dealing in cocaine and a concurrent three-year term for Class C felony neglect of a dependent for an aggregate term of seven years imprisonment. Two years of this sentence are suspended, one to supervised probation and one to unsupervised probation with credit for time already served, and the executed portion of the sentence is to be served in the Tippecanoe County Community Corrections program. Reversed and remanded.G.R. v. State of Indiana - "G.R. was adjudged a juvenile delinquent for committing the following acts: criminal gang activity, a Class D felony if committed by an adult, criminal trespass, a Class A misdemeanor if committed by an adult, criminal mischief, a Class D felony if committed by an adult, and criminal mischief, a Class B misdemeanor if committed by an adult. G.R. appeals his adjudication for criminal gang activity and argues that the evidence was insufficient to establish that he participated in a “criminal gang.” Concluding that the evidence is insufficient to establish that G.R. was involved in a gang with at least five members, we reverse."BAKER, C.J., concurs.
BROWN, J., dissents with opinion.[which concludes] I cannot agree with the majority’s significant reduction to almost minimum, concurrent sentences with two years suspended and the executed portion of Westlake’s sentence served in community corrections. Rather, I believe that the trial court took Westlake’s mental illness, progress in treatment, and success in the pre-conviction release program into account by imposing the advisory sentences. At most, I could recommend concurrent rather than consecutive sentences for her offenses.After due consideration of the trial court’s decision, I cannot say that the sentence imposed by the trial court is inappropriate in light of the nature of the offense and the character of the offender. I would affirm Westlake’s sentence or, at most, order concurrent rather than consecutive sentences. Consequently, I dissent from the majority’s significant reduction of her sentence.
NFP civil opinions today (4):
Michael J. Hood v. Robbin G. Hood (NFP) - "Therefore, we conclude that the trial court did not abuse its discretion in finding that Father did not prove a substantial change in circumstances that would have warranted modification of custody. * * *
"As previously stated, Father had a legitimate right to be concerned about the violence in Mother’s home and this provided him with a valid, good faith basis for seeking modification of custody. Therefore, we conclude that an award of appellate attorney’s fees to Mother is not warranted. Affirmed."
Wesley K. Files v. Rebecca R. Demeester (NFP) - "We conclude, however, that on these particular facts, the trial court’s decision was well within its discretion and did not contravene the well-established principle that laches does not apply in a case involving a parent’s effort to collect child support."
Charles N. Pollack, M.D. v. Sisters of St. Francis Health Services, Inc., et al (NFP) - "Charles N. Pollack, M.D. (Dr. Pollack) appeals the trial court’s grant of summary judgment in favor of Sisters of St. Francis Health Services, Inc. d/b/a St. Francis Hospital & Health Centers f/k/a St. Francis Hospital & Health Centers, Inc. (St. Francis) on Dr. Pollack’s complaint for damages resulting from a claimed breach of contract over the termination of his medical staff privileges at St. Francis. On appeal, Dr. Pollack presents six issues for our review, which we consolidate and restate as: did the trial court properly grant summary judgment in favor of St. Francis? We affirm. * * *
"From the designated evidence, it is clear that St. Francis acted reasonably and within the provisions of the Constitution and Bylaws and Rules and Regulations. In instances where St. Francis did not follow the letter of its rules, i.e., in extending Dr. Pollack’s leave of absence beyond one year after it had expired, it did so to the benefit of Dr. Pollack, extending him every opportunity to resume his practice at St. Francis. Finding no dispute in the material facts, we conclude that the trial court properly granted summary judgment in favor of St. Francis on Dr. Pollack’s complaint for breach of contract."
Deloris and Bobby England v. Fairfield Contracting, et al (NFP) - "Appellants-defendants Deloris E. England and Bobby G. England, as guardians of the Estate and person of Robert E. England, an incapacitated adult (the Estate), appeal the trial court’s order denying the Estate’s motion for partial summary judgment against appellee-defendant Fairfield Contracting, Inc. (Fairfield). The Estate contends that the trial court should have found as a matter of law that Fairfield had assumed a contractual duty of care to Robert. The Estate also argues that the trial court erroneously gave two jury instructions that were allegedly improper statements of law and invaded the province of the jury. Additionally, Fairfield cross-appeals the trial court’s order granting cross-appellee/third-party defendant Ed Muller Masonry, Inc.’s (Ed Muller) motion for judgment on the evidence on Fairfield’s indemnity claim against Ed Muller. Finding no error, we affirm."
NFP criminal opinions today (3):
Joseph Ooten v. State of Indiana (NFP)
Charles Johnson v. State of Indiana (NFP)
James Brown v. State of Indiana (NFP)
Posted by Marcia Oddi on September 23, 2008 12:08 PM
Posted to Ind. App.Ct. Decisions
Environment - "Ban Near on Diverting Water From Great Lakes"
So reports Susan Saulny of the NY Times today in a story that begins:
The House began debate Monday on a sweeping bill that would ban almost any diversion of water from the Great Lakes’ natural basin to places outside the region.The measure is intended to put to rest longstanding fears that parched states or even foreign countries could do long-term damage to the basin by tapping into its tremendous body of fresh water.
The bill, which would also put in place strict conservation rules for the eight states that border the lakes, is expected to win House approval, perhaps as soon as Tuesday. It has already been passed by the Senate, and the Bush administration has signaled its support.
So House backing for the measure, known as the Great Lakes Compact, is regarded by its many advocates across the Midwest and in New York and Pennsylvania as a long-sought final piece to a complicated puzzle whose solution started taking shape a decade ago in an effort to give the region control over its water. The fear was that without strict, consistent rules on who is entitled to that water, it might start disappearing.
“People realized that Great Lakes water is a finite resource and that death by a thousand straws is a real threat,” said Jordan Lubetkin, a spokesman for the National Wildlife Federation. “There is a perception that because the Great Lakes are so vast, they are immune from harm. That is not the case.”
Posted by Marcia Oddi on September 23, 2008 08:46 AM
Posted to Environment
