The Indiana Law Blog

Thursday, November 06, 2008

Ind. Courts - Making sense of court fees

In the second half of this ILB entry from August 3rd, there is a discussion of Indiana court fees, ending with "I've been unable to locate a simple, one-page statement of current Indiana court fees."

That is still the case. However, the ILB has just obtained copies of an overview of court fees and information on the revenue generated by these fees, prepared by the LSA for the legislative Commission on Courts meeting last month. Access the 3-page report here.

In addition, these two charts (each is extra-wide and extends onto the following page) list "Fee Type" and how they have changed over the period from 1990-2008.

Posted by Marcia Oddi on November 6, 2008 02:45 PM
Posted to Indiana Courts

Ind. Courts - Supreme Court receives international award for information systems

A press release issued today begins:

The Indiana Supreme Court has been recognized by the Information Integrity Coalition (IIC) for providing accurate, consistent and reliable information. Chief Deputy Executive Director of State Court Administration, Dave Remondini, accepted the award on behalf of the Court in Chicago, Illinois on October 20th at the 13th annual awards banquet. The court was honored for its work on major technology initiatives including the Odyssey statewide case management system; electronic Protection Order Registry; electronic Citation and Warning System for law enforcement and electronic reporting of driver suspensions and convictions to the Bureau of Motor Vehicles.

Who else received awards? As announced here:

Winners and Finalists in the Non-Profit category included:
Gold Winner - Akshara Foundation – Bangalore, India

Gold Winner - Pratham Mumbai Education Initiative – ASER, Mumbai, India

Silver Winner - Metropolitan Sewer District of Greater Cincinnati – Cincinnati, Ohio, USA

Bronze Winner - Office of the CFO, US Department of Labor – Washington, District of Columbia, USA

Finalist - Indiana Supreme Court – Indianapolis, Indiana, USA

Finalist - Office of the Clerk of the Circuit Court of Cook County – Chicago, Illinois, USA

Finalist - The MITRE Corporation – McLean, Virginia, USA

Posted by Marcia Oddi on November 6, 2008 01:20 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)

For publication opinions today (2):

In Fairbanks Hospital v. Dan Harrold, et al , an 11-page opinion, Judge Friedlander writes:

Upon interlocutory appeal, Fairbanks Hospital (Fairbanks) appeals the trial court’s determination that a claim filed against it by Dan, Eva, and Natalie Harrold (collectively, the Harrolds) does not fall within the scope of the Indiana Medical Malpractice Act. Upon appeal, we consider the following restated issue: Does a complaint alleging negligent hiring, training, and supervision of a hospital employee fall within the Act if the underlying tort allegedly committed by that employee was unwanted sexual advances? We affirm. * * *

The IDI, however, does cite one case that we deem to be dispositive of the appeal: Winona Mem’l Hosp., Ltd. P’ship v. Kuester, 737 N.E.2d 824 (Ind. Ct. App. 2000).

The relevant facts in Winona are that the patient/plaintiff alleged that Winona Hospital and affiliated medical providers were negligent in credentialing a doctor whose malpractice caused injury to her. Winona moved to dismiss the complaint on the basis that the patient had failed to comply with the requirement of the Act that a patient first obtain an opinion from a medical review panel. The trial court denied the motion to dismiss and Winona filed an interlocutory appeal. This court took the occasion to address a question of first impression in Indiana, i.e., “[w]hether a claim against a qualified health care provider for the negligent credentialing of a physician is an action for malpractice subject to the provisions of the Medical Malpractice Act?” There, as here, the court observed that the patient’s claim alleged that her injuries were proximately caused by two acts – Winona’s negligence in credentialing the doctor in question, and, of course, that doctor’s negligence in treating the patient. We observed that, as pleaded, in order for the patient to prove the tort of negligent credentialing, she was first required to establish that a negligent act of the doctor’s proximately caused her injury “before she can proceed against Winona.” * * *

We thus learn from Winona that a medical malpractice action cannot become completely unmoored from the provision of what our case law has established is the very essence of health care, i.e., “conduct, curative or salutary in nature, by a health care provider acting in his or her professional capacity[.]” This is especially true where, as here, the patient is required to prove more than one layer – or multiple acts - of tortious conduct in order to prevail. It is for this reason that the court held in Winona that it availed the patient nothing to prove that Winona was negligent in credentialing the physician in question if the patient did not also prove that said physician’s negligence in rendering health care services was a proximate cause of the patient’s harm. In other words, both allegedly tortious acts that comprised the patient’s claim of malpractice must sound in medical malpractice and not merely ordinary negligence.

Applying these principles to the instant case, the Harrolds’ claim against Fairbanks requires proof, at least so far as this appeal is concerned, both that Shears was guilty of sexual misconduct with Natalie, and that Shears was in a position to do this as a result of Fairbanks’s negligent supervision. * * * As set out above, this court has consistently held that an employee’s sexual conduct with a patient cannot constitute a rendition of health care or professional services, and thus a claim based thereon does not fall under the Act. [citations omitted] For these reasons, the trial court did not err in determining that the claim filed against Fairbanks by the Harrolds does not fall within the purview of the Act. Ruling affirmed.

Steven A. Powell v. State of Indiana - " Steven Powell appeals the sentence imposed after he pleaded guilty to one count of attempted child molesting as a Class A felony and one count of child molesting as a Class C felony. We affirm. "

NFP civil opinions today (2):

In Re: C.A.W., Jr. (NFP) - "In light of C.A.W.’s failure to justify the seven-year delay in seeking to set aside his juvenile adjudication and the great prejudice resulting to the State because of this delay, C.A.W. has not met his burden of showing that he filed his T.R.60(B)(8) motion within a reasonable amount of time. (Compare the instant case with G.B. v. State, 715 N.E.2d 951 (concluding that T.R. 60(B) motion challenging the voluntariness of waiver of counsel in juvenile proceeding was timely filed ten months after modification hearing when juvenile initiated procedures to obtain transcripts of hearing for purposes of filing T.R. 60(B) motion within three months of disposition modification proceeding)). We therefore conclude that the trial court did not abuse its discretion in denying C.A.W.’s requested relief. "

Carr Development Group v. The Town of North Webster (NFP) - " Carr Development Group, LLC, (Carr), appeals the trial court’s grant of declaratory relief in favor of the Town of North Webster upon its complaint for
reformation of a contract between the parties.

"The sole issue for our review is whether the trial court erred in ordering the contract reformation. We affirm. * * *

"Here, the parties to the contract had a prior understanding that North Webster would not waive any fees in the Carr project. Carr nevertheless drafted an amendment contrary to this understanding and permitted North Webster to sign the contract without informing North Webster of the amendment. This is inequitable conduct that supports the reformation of the parties’ contract. We find no error. "

NFP criminal opinions today (1):

Jeremy A. Bishop v. State of Indiana (NFP)

Posted by Marcia Oddi on November 6, 2008 12:38 PM
Posted to Ind. App.Ct. Decisions

Law - "An Early Line on Legal Slots in Obama Administration "

Marisa McQuilken and Brian Katkin of Legal Times run though some of the regulatory agency and Justice Department speculation in this article.

Posted by Marcia Oddi on November 6, 2008 08:51 AM
Posted to General Law Related

Ind. Courts - Frustration with the Appellate Clerk's Office Operations

Some attorneys are reporting problems filing, or accessing information, at the Appellate Clerk of the Court's office. From a note I received from a reader in August:

Let me assure you, everything is messed up. I've had problems getting stuff in the last few weeks because of the move. They are split between two locations temporarily, and are having major logistical problems. Stuff comes in to the State House office, gets shipped to the South Meridian location,. and comes back to the judges. Stuff is not always happening on a timely basis, and they are just as frustrated as you and me.

I'm told that when they come back, it will be better in terms of public access to briefs, etc. No, not on-line yet it seems. Apparently, however, there will at least be better short-term access to folks who walk in (who have not even been able to see any -- period -- for the last two months).

From notes received recently:

I wonder if other attorneys have complained about the (extremely) long wait to file anything in person at the Appellate Clerk's office. I was there recently and for the second time my wait was over 25 minutes. But this time I had to leave before getting anything filed, so my wait would probably have been much longer. Other attorneys I have talked to have waited up to an hour or more, just to file a brief.

From what I understand, it won't get any better once construction is done. The clerk's office will have a "banker's window" for filing, which will still allow only one person at a time to assist someone with a filing. The rest of the area will be a waiting room for attorneys. It seems so inefficient.

At first I thought the long wait would be temporary. But it has been going on for a while now. It used to be cheaper to run downtown and file a brief in person rather than trying to send it through the mail. But if you consider the time it takes to file it (especially if you are a solo without a legal assistant), it may be cheaper to send it by mail).

Any comments?

Posted by Marcia Oddi on November 6, 2008 08:29 AM
Posted to Indiana Courts

Environment - Pollution Dilution; New EPA CAFO Rules; Other EPA Action

Pollution Dilution. Gitte Laasby of the Gary Post Tribune reports:

BP says the diffuser it plans to use to dilute wastewater in Lake Michigan will not harm people's drinking water or wildlife -- but a federal agency wants the company to use wetlands on its own property to mitigate environmental impact.

The refinery has proposed building a diffuser consisting of a pipe extending 3,500 feet into Lake Michigan from the Whiting refinery. At the end, 12 exit ports would dilute the wastewater so pollutants come out less concentrated.

"When IDEM (the Indiana Department of Environmental Management) approved the (wastewater) permit, they determined the mixing zone would not cause harm to human health and aquatic life. It would not block passage of wildlife, it would not have an impact on habitat. It would not impact drinking water intakes. It's an ideal location," said BP spokesman Scott Dean.

The project requires a construction permit from the U.S. Army Corps of Engineers, which took public comments until last week. Environmental groups and the U.S. Fish and Wildlife Service disagree with BP's assessment, saying that diffusing pollutants could degrade drinking water, make spills harder to contain, result in more algal blooms and encourage the spread of invasive fish at the expense of lake trout and sturgeon.

New CAFO Rules. Gary Truitt of Hoosier Ag Today writes:

The EPA has announced the long delayed regulations on Confined Animal Feeding Operations (CAFOs). Tough but fair is how the National Pork Producers Council reacted to the new CAFO rules. * * * The Indiana Department of Environmental Management (IDEM) told HAT they are still analyzing the rules to see how they fit with state regulations. Indiana Pork is also reviewing the documents, but was not ready to issue a statement at this time.

Here is the US EPA press release on the new rules. Here is the EPA's CAFO page.

Other EPA Action? An editorial in the NY Times Monday was headed "So Little Time, So Much Damage." Some quotes:

Most presidents put on a last-minute policy stamp, but in Mr. Bush’s case it is more like a wrecking ball. We fear it could take months, or years, for the next president to identify and then undo all of the damage. * * *

The administration has been especially busy weakening regulations that promote clean air and clean water and protect endangered species.

Mr. Bush, or more to the point, Vice President Dick Cheney, came to office determined to dismantle Bill Clinton’s environmental legacy, undo decades of environmental law and keep their friends in industry happy. They have had less success than we feared, but only because of the determined opposition of environmental groups, courageous members of Congress and protests from citizens. But the White House keeps trying.

Mr. Bush’s secretary of the interior, Dirk Kempthorne, has recently carved out significant exceptions to regulations requiring expert scientific review of any federal project that might harm endangered or threatened species (one consequence will be to relieve the agency of the need to assess the impact of global warming on at-risk species). The department also is rushing to remove the gray wolf from the endangered species list — again. The wolves were re-listed after a federal judge ruled the government had not lived up to its own recovery plan.

In coming weeks, we expect the Environmental Protection Agency to issue a final rule that would weaken a program created by the Clean Air Act, which requires utilities to install modern pollution controls when they upgrade their plants to produce more power. The agency is also expected to issue a final rule that would make it easier for coal-fired power plants to locate near national parks in defiance of longstanding Congressional mandates to protect air quality in areas of special natural or recreational value.

Interior also is awaiting E.P.A.’s concurrence on a proposal that would make it easier for mining companies to dump toxic mine wastes in valleys and streams. * * *

We suppose there is some good news in all of this. While Mr. Bush leaves office on Jan. 20, 2009, he has only until Nov. 20 to issue “economically significant” rule changes and until Dec. 20 to issue other changes. Anything after that is merely a draft and can be easily withdrawn by the next president.

Unfortunately, the White House is well aware of those deadlines.

Posted by Marcia Oddi on November 6, 2008 08:13 AM
Posted to Environment

Wednesday, November 05, 2008

Law - SEC's Division of Enforcement issues a 122-page Enforcement Manual

Amy Walsh of the New York Law Journal has a long article today headed "New SEC Enforcement Manual: Better Late Than Never." It begins:

Since its establishment in 1934, the policies and practices governing the Securities and Exchange Commission have existed under a shroud of mystery accessible only to those who previously worked at the SEC or to those who represented parties in front of the commission.

In February, at least one SEC commissioner, Paul S. Atkins, noted the irony of this black box approach coming from an agency that demands transparency from those it regulates: * * * Among other suggestions relating to transparency, Commissioner Atkins proposed that the SEC publish an enforcement manual that describes the internal policies and procedures of the Enforcement Division, "similar to the U.S. Attorney Manual."

On Oct. 6, 2008 -- eight months after Commissioner Atkin's remarks, and amid the most significant market turmoil since 1929 -- the SEC's Division of Enforcement issued a 122-page Enforcement Manual that addresses a multitude of subjects, ranging from waiver of the attorney client privilege to the best practices for Bates stamping documents.

Posted by Marcia Oddi on November 5, 2008 05:49 PM
Posted to General Law Related

Ind. Gov't. - AG issues official opinion on public bidding of school roof repair work

The Attorney General issued an Official Opinion Nov. 3rd in response to a question posed by the State Board of Accounts:

You have requested our opinion regarding the extent to which the public work laws apply to certain expenditures by school corporations. Although you posed several questions related to this matter, we understand the basic question to be whether the public work statute applies to roof repair / replacement projects undertaken by school corporations and whether school corporations participating in educational service centers are excepted from the public work statute.

Brief Answer. The public work statute at Indiana Code chapter 3 1 - 1- 12 applies to roof repair / replacement projects undertaken by school corporations, including those schools participating in educational service centers.

The conclusion:

It is the opinion of this Office that school corporations are covered by the public work statute and are subject to the procedures for bids and quotes whenever they contract for public work even when the public work is contracted through an educational service center. The process required to award a contract for a particular public work project is determined by the cost of the project except in the event of a declared emergency. The definition of "public work" includes repairs to a roof, including those made to a portion of a roof.

Thanks to the reader/blogger who pointed the ILB to this opinion.

Posted by Marcia Oddi on November 5, 2008 05:40 PM
Posted to Indiana Government

Courts - "Miss. Voters Unseat Three High Court Justices"; Alabama race

That is the headline of this AP story by Jack Elliot Jr. that begins:

Three sitting members of the Mississippi Supreme Court were ousted Tuesday by voters.

Chief Justice Jim Smith, Presiding Justice Oliver Diaz Jr. and Justice Chuck Easley lost to opponents in balloting.

Attorney Jim Kitchens defeated Smith, who had been on the court for 15 years, the past four years as chief justice.

"Alabama Supreme Court Race Too Close to Call" is the headline to this AP story by Phillip Rawls that begins:

Republican Greg Shaw has taken a 7,300-vote lead over Democrat Deborah Bell Paseur for the state Supreme Court. But final precinct counts are being awaited Wednesday to decide a bitterly contested race that maintained Alabama's tradition of expensive court races where black robes end up muddy.

Posted by Marcia Oddi on November 5, 2008 02:35 PM
Posted to Courts in general

Courts - More on: "An 'Orgy of Negativity' in Michigan Judicial Race"

Updating this ILB entry from yesterday, the Detroit Free Press is reporting today, in a story by Zachary Gorchow:

Diane Hathaway sprung a stunning upset Tuesday of Clifford Taylor, the conservative chief justice of the Michigan Supreme Court who was the target of a scathing advertising campaign from Democrats.

Hathaway, a Wayne County Circuit Court judge nominated by the Democrats, is the first challenger to unseat an incumbent justice since 1984.

The loss is a devastating blow to the Michigan Republican Party, which was braced for a bad night elsewhere on the ticket but badly wanted to re-elect Taylor, who has been a critical member of the conservative majority that has ruled the court the last decade. * * *

Taylor was favored to win re-election because he had an incumbent designation on the ballot and was on the nonpartisan ballot, theoretically inoculating him from the Democratic wave that swamped the state.

The race exploded in the last two weeks when the Michigan Democratic Party funded scathing ads labeling Taylor "the Sleeping Judge," claiming he fell asleep during a case -- a charge Taylor and Republicans denounced as a lie. * * *

Republicans countered the assault by attacking Hathaway's record on crime and claiming that she once told a newspaper she only wanted to serve on the state Court of Appeals to enhance her vacation time.

With 73% of the precincts reporting, Hathaway led with 49%- 40% for Taylor. Libertarian Robert Roddis had 11%.

Taylor has been a fixture of the Republican court majority that alternately has been hailed and castigated during the past decade for its conservative rulings.

Business interests and Republicans said Taylor and his fellow conservatives have taken a more literal interpretation of the law that has created a better climate to do business in Michigan.

But Democrats and plaintiffs' attorneys said Taylor has been part of a majority that has overturned years of precedent and stacked the deck against individuals trying to sue businesses and government.

The court has five justices nominated for election by the Republican Party and two nominated by the Democrats.

Posted by Marcia Oddi on November 5, 2008 12:28 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

For publication opinions today (5):

In Jeremy W. Combs v. State of Indiana , a 13-page pinion, Judge Vaidik writes:

Following a jury trial, Jeremy W. Combs was convicted of Class D felony operating a vehicle while intoxicated. On appeal, he argues that the trial court abused its discretion in admitting the results of his blood alcohol test into evidence. Specifically, Combs contends that the search warrant used to obtain his blood was not based upon probable cause and that the State failed to lay a proper foundation for admitting the test results because it did not present evidence that the person who drew Combs’s blood acted under proper protocol. We conclude that the search warrant was based upon probable cause but that the State failed to lay a proper foundation for admitting the test results, namely, that Combs’s blood was drawn under the direction of or under a protocol prepared by a physician. Therefore, the trial court abused its discretion in admitting this evidence. However, this error is harmless because the evidence is otherwise sufficient to support Combs’s conviction. We therefore affirm.

In John Edward Skolak v. Linda Skolak, a 12-page opinion, Judge Darden writes:

John Edward Skolak appeals the trial court’s order finding that the State’s action to collect child support arrearage was not untimely. We reverse. * * *

Skolak argues that the applicable statutes of limitation bar the State’s action of August 20, 2007, to determine and collect an arrearage of his court-ordered child support payments. We agree. * * *

The State has conceded that unless Indiana Code sections 31-16-16-2 and 34-11-2-12 apply so as to allow pursuit of its action to collect Skolak’s child support arrearage after August 20, 1987, its action against Skolak is time-barred. Finding that the State’s argument in that regard cannot prevail, we reverse the trial court’s order.

Term. of Parent-Child Rel. of J.M. v. A.S. and A.M., Allen Co. Dept. of Child Services - "Given the evidence presented, including the GAL’s testimony that termination would be in J.M.’s best interests, we conclude that the trial court’s denial of the petition for termination of both Mother’s and Father’s parental rights is clearly erroneous. Accordingly, we reverse the trial court’s determination that Mother’s and Father’s parental rights as to J.M. should not be terminated, and we remand to the trial court with instructions to enter an order terminating the parental rights of Mother and Father. Reversed and remanded. "

Brian A. Staley v. State of Indiana - "In his appellate brief, Staley devotes fifteen pages to explain the differences between the Deputies’ testimonies and his own. However, his argument amounts to nothing more than a request to reweigh the evidence, which we will not do. See Perez, 872 N.E.2d at 212-13. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). In the case before us, we conclude that the jury was presented with sufficient evidence of probative value that Staley was driving intoxicated and endangering the public, the police, or himself.

"CONCLUSION. Based on the foregoing, we conclude that the trial court properly instructed the jury and the State presented sufficient evidence to support Staley’s conviction beyond a reasonable doubt. Affirmed."

In Joseph K. Alvies v. State of Indiana , a 7-page opinion, Judge Riley writes:

Appellant-Defendant, Joseph K. Alvies (Alvies), appeals his conviction for panhandling, a Class C misdemeanor, Ind. Code § 35-45-17-2. We affirm. * * *

Laws targeting street begging have been around for many years, but in the last twenty years, communities have tried to narrowly draw ordinances to target the most bothersome types of street solicitations and give police another tool in their effort to make public areas, particularly downtown areas, safe and inviting. * * *

Rather than ban all panhandling outright, the statute is restricted to only those circumstances when panhandling can be considered especially unwanted or bothersome—at night, around restaurants and sidewalk cafes, at financial institutions or commercial establishments, or by blocking an individual’s path. These represent situations in which people most likely would feel a heightened sense of fear or alarm, or might wish especially to be left alone. Moreover, the statute is limited to the bare request 5for cash or valuables. Under the statute, panhandlers may ply their craft lawfully by holding up a sign that says ‘give me money’ and sing ‘I’m cold and starving,’ so long as one does not voice the words to the effect of ‘give me money.’ * * *

Based on the facts before us, we conclude that Alvies panhandled. He solicited money from Officer Shaughnessy by stepping in front of him in the downtown business district at night and repeatedly requesting money. Therefore, we hold that the trial court properly convicted Alvies of panhandling, a Class C misdemeanor.

NFP civil opinions today (4):

The Health and Hospital Corp. of Marion Co. d/b/a Wishard Memorial Hospital v. Phyllis Long (NFP) - "Following a jury trial in this personal injury action, Appellant-Defendant The Health and Hospital Corporation of Marion County, Indiana, d/b/a Wishard Health Services (“Hospital”) appeals a $245,000 verdict and judgment in favor of Appellee-Plaintiff Phyllis Long. Upon appeal, the Hospital challenges the sufficiency of the evidence to support the verdict by claiming that there was no evidence at trial that the Hospital knew or reasonably should have known of the premises defect causing Long?s injuries. We affirm. "

Carmen R. Posey v. Elkhart County Sheriff's Department (NFP) - "Thus, we conclude that the trial court properly granted summary judgment in favor of the Sheriff’s Department and Drug Task Force, upon a finding that Posey’s tort claims are barred by the statute of limitations and for noncompliance with the notice requirement pursuant to the Indiana Tort Claims Act."

Aleksander Stojceski, et al. v. Northern Indiana Public Svc. Co. (NFP) - "Based on the foregoing, we reverse the trial court’s denial of NIPSCO’s Motion for Judgment on the Evidence with regard to Kiriakopoulos’ damages. With regard to the remaining claims of Stojceski and Prentoski, we find that the trial court properly denied Appellants’ Motion for Judgment on the Evidence concerning comparative fault. Also, we affirm the trial court with regard to its jury instructions on comparative fault and a motorist’s duties, but reverse the trial court with regard to the Res Ipsa Loquitur jury instruction. Affirmed in part, reversed in part, and remanded for further proceedings with regard to Stojceski’s and Prentoski’s claims for damages."

In Re the Paternity of C.W.R. (NFP)

NFP criminal opinions today (5):

Jorge Lopez v. State of Indiana (NFP)

Maurice A. Stantz v. State of Indiana (NFP)

Emily L. Castro v. State of Indiana (NFP)

Phil L. Honer, Jr. v. State of Indiana (NFP)

Maurice A. Stantz v. State of Indiana (NFP)

Posted by Marcia Oddi on November 5, 2008 11:54 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Voters Retain All Indiana Supreme Court, Court of Appeals, and Tax Court Judges on the November Ballot

From the official release on the Court website:

Indiana Supreme Court Chief Justice Randall T. Shepard, Supreme Court Justice Brent E. Dickson, Supreme Court Justice Theodore R. Boehm, Court of Appeals Judge Carr L. Darden, and Tax Court Judge Thomas G. Fisher were all retained by Indiana voters. The Indiana Secretary of State reported all five appellate judges garnered more than 650,000 “yes” votes.

For the first time, Indiana voters had access to a website designed specifically for voters interested in learning more about the judges on the ballot. [ILB - but see note below] The new site, courts.in.gov/retention, was launched in October. It gave voters access to biographical information about the judges and details about the decisions they have made while serving on the bench. Court of Appeals Judges Terry Crone and Cale Bradford (who were not on the November ballot) coordinated the website creation. The Indiana Division of State Court Administration provided technical support.

Note: That is not really correct - it is the first "official" website. The ILB created an extensive ILB judicial retention website for the 2006 election, because there was no official retention information available at that time.

Posted by Marcia Oddi on November 5, 2008 11:08 AM
Posted to Judicial Retention

Ind. Law - "Lake County sees climb in provisional ballots Tuesday" [Updated]

Marisa Kwiatkowski has this report in the NWI Times. A quote:

Lake County voter rolls couldn't keep up with the flood of new voters Tuesday, elections officials said.

More than 29,000 new people registered to vote in Lake County this year, according to the Indiana secretary of state's office.

Deputy Elections Commissioner John Moos said that new glut of registrations meant a larger number of provisional ballots were cast Tuesday because some new voters who received their registration cards were not listed in the voter roll books in time.

Provisional ballots are votes cast by people who either fail to present photo IDs at the polls or aren't listed as registered to vote in the precincts in which they cast the provisional ballots. In order for their votes to count, provisional voters must provide evidence -- such as photo IDs -- to county elections officials within 10 days of the election showing they were eligible to vote.

[Updated] For a nation-wide view, see this article, titled "Malfunctioning Machines, Ballot Glitches, Election-Law Litigation -- and a Busy Day for Lawyers," by Amanda Bronstad of The National Law Journal."

Posted by Marcia Oddi on November 5, 2008 08:34 AM
Posted to Indiana Law

Law - Social issues on the ballot

How Appealing has a rundown, here.

Posted by Marcia Oddi on November 5, 2008 08:31 AM
Posted to General Law Related

Ind. Courts - Reports on some local court races

From the LCJ, a report by Harold Adams:

Democrats swept four contested judgeships in Clark, Floyd and Harrison counties last night, with two victories in Floyd County, one in Clark and another in Harrison.

In the Clark Circuit Court race, Democrat Dan Moore unseated short-term Republican incumbent Abraham "Abe" Navarro with 59 percent of the vote. Gov. Mitch Daniels had appointed Navarro to the bench in June to replace Democrat Daniel Donahue, who retired.

Navarro stumbled in his first week on the job when he fired two longtime Donahue staffers and unsuccessfully attempted to replace one of them with the Clark County Republican Party chairman.

Moore said last night that he believes he benefitted from Navarro's missteps. "It's just the kind of thing you don't expect from your court," he said.

But Moore said ideas he put forth for changing the court also helped him win. "We talked about longer hours and a good hard work ethic for the court. I think people want that."

In Floyd County, which had two newly created Superior Court judgeships up for grabs, Democrat Glenn Hancock, the incumbent judge of Floyd County Court, which is being converted to Superior Court 2, beat Republican Chris Lane, a deputy county prosecutor.

Hancock garnered 59 percent of the vote.

Democrat Maria Granger, a real-estate attorney, beat out Republican Richard Fox for the Floyd Superior Court 3 seat, getting 54 percent of the vote.

Granger said: "I really think that people believe in building the court on integrity, fairness and respect. I think they knew that … I was dedicated … to making sure that that happened."

In Harrison County, Democratic incumbent Roger Davis, narrowly won a third term by defeating Republican John Evans with 52 percent of the vote.

From the Greenecastle Banner Graphic, this story that begins:

In a tight race for Putnam County's Superior Court Judge, Denny Bridges beat out Craig Kenny by 2,677 votes. Bridges received 8,299 votes and Kinny had 5,622.

From the NWI Times, a story by Bob Kasarda that begins:

VALPARAISO | Porter County Superior Court Judge Roger Bradford was one of the few local Republicans who remained standing Tuesday following a strong turnout by Democratic voters.

The 63-year-old was re-elected to a fifth term against Democratic challenger William Suarez.

Also victorious Tuesday was incumbent Democratic Superior Court Judge David Chidester, who handily defeated Republican challenger Tim Vojslavek.

MORE?

Posted by Marcia Oddi on November 5, 2008 08:15 AM
Posted to Indiana Courts

Ind. Gov't. - "Zoeller wins state's attorney general post"

From the NWI Times, a story that begins:

INDIANAPOLIS | Republicans retained control of the Indiana attorney general's office Tuesday, as voters narrowly elected new GOP faces to replace long-serving incumbents stepping down this year.

Republican Attorney General Steve Carter will be replaced by his chief deputy, Greg Zoeller, who beat Democrat Linda Pence. Carter is leaving his post after 8 years.

See also this story by the AP's Deanna Martin. A quote:

Zoeller and Pence, meanwhile, disagreed on the role of the attorney general's office.

Pence, a feisty Indianapolis trial attorney, pledged to investigate gas prices in Indiana and wanted the attorney general to do more to help local prosecutors who need additional resources. Zoeller — a cousin of golfer Fuzzy Zoeller — said Pence was misleading the public into thinking the role is that of a prosecutor. It's the job of local prosecutors to go after criminals, he said, while the attorney general defends the state on appeals to make sure those criminals stay behind bars.

Jon Murray of the Indianapolis Star has this report that begins:

Hoosiers faced a clear choice for attorney general: the insider vs. the crusader.

Election returns Tuesday evening showed a close race most of the night. But the insider, Republican Greg Zoeller, pulled out the win led against Democrat Linda Pence.

Zoeller, the chief deputy to outgoing Attorney General Steve Carter, ran on promises to expand on programs such as the popular do-not-call list.

He also pledged to adopt Carter’s low-key style against a challenger proposing top-to-bottom changes that would bring flash and a higher profile to the office.

But heading into Tuesday’s election, there was little indication which way the scales might tilt. Recent polls found many likely voters undecided.

Posted by Marcia Oddi on November 5, 2008 08:15 AM
Posted to Indiana Government

Ind. Courts - "Indiana high court retained by voters"

So reads the LegalNewsline headline today to a report by Scott Sabatini that begins:

INDIANAPOLIS (Legal Newsline)--Change may be among the most prolific words used this campaign season, but Indiana voters stayed the course with a majority of state Supreme Court seats up for election.

According to early results provided by the Indiana Secretary of State, all three incumbents will overwhelmingly be approved by voters Tuesday night. The victory gives each justice another 10-year term.

Supreme Court Chief Justice Randall Shepard, along with fellow Justices Brent Dickson and Theodore Boehm enjoyed wide margins in their respective "retention" elections.

Early polling numbers showed voters all three justices with roughly 70 percent of voters choosing yes to retain them on the ballots.

Posted by Marcia Oddi on November 5, 2008 07:55 AM
Posted to Judicial Retention

Tuesday, November 04, 2008

Courts - "An 'Orgy of Negativity' in Michigan Judicial Race"

Marcia Coyle of The National Law Journal reports today in a story that begins:

Michigan's Supreme Court race has turned into the nation's nastiest judicial campaign, according to a nonpartisan organization that monitors judicial races.

Bert Brandenburg, executive director of the Justice at Stake Campaign, said recent and numerous television ads in the race between Republican Chief Justice Cliff Taylor and his Democratic challenger, longtime trial judge Diane Hathaway, have created an "orgy of negativity."

The ads have depicted Taylor as asleep on the bench and a "good soldier" of big business, and Hathaway as a goldbricking, terrorist sympathizer who gives light sentences to sexual predators, according to Brandenburg.

Posted by Marcia Oddi on November 4, 2008 04:40 PM
Posted to Courts in general

About this Blog - Notable items concerning the ILB

Election Law. Last Friday a Marion County trial court issued a ruling on how absentee challenges would be handled today - election day - in Marion County. Appellants filed an emergency motion for stay pending appeal and requested a schedule for expeditious resolution of the motion to stay. At 11:45 that night, the COA issued an order setting 9 AM yesterday (Monday) as the deadline for response to the motion for stay. The ILB was able to post these documents during the weekend, thanks to ILB readers who forwarded copies. Yesterday was even more remarkable, the ILB was able to follow events and post relevant documents within minutes of submission to, or issuance by, the Court of Appeals and Supreme Court. Thanks here go not only to participants, but to the Courts themselves and to the new public information officer, Kathryn Dolan, who didn't waste a minute in getting the Courts' rulings out to the media. What all this shows, I think, is how well a blog such as the ILB is able to deal with the speed of the news cycle, when called upon to do so. And an added benefit is that the materials in this case are now archived via the ILB, affording the public easy availability in the months and years to come. [Note: I continue to regret not receiving copies of the appellate briefs in the Lake County case. BTW - it not too late ....]
Judicial Retention. Yesterday, the ILB had nearly 5,000 page views in one day, a record. Checking the stats, I found that a large number of people had reached the ILB last evening while searching for variations of the phrase "randall t. shepard". Of course! -- they were preparing for their visit to the polls today, and wanted more information before they cast their votes on the judicial retention question.
The ILB / ReaMatch Law Jobs Connection. A few days back, the ILB announced:
The ILB has agreed to act as a host for the RealMatch job network -- providing access to Indiana legal jobs for both job seekers, and employers. You will shortly be able to access the network from the ILB and just look around, or submit your resume, or advertise an opening, all at no cost. And because RealMatch is nationwide, your access will extend to the national job market, should you so choose. Watch for this!
And now it is here - check the link near the top of the right-hand column of the ILB to learn your options as a job seeker or employer, OR scroll down to the bottom of the right-hand column of the ILB to find direct links to job ads. I hope that your firm or business will turn to the ILB / ReaMatch connection to find your next employee, and I hope that you job seekers will sign up. Not only will it be to your advantage, but it may help to assure the continuation of the ILB.
ILB Supporters. Finally, I want to take a moment to express appreciation for the ILB's supporters, the Indiana State Bar Association, and DoxPop, and to urge those of you associated with some of the State's larger law firms to think about adding your firm to the ILB Supporters list.

Posted by Marcia Oddi on November 4, 2008 01:06 PM
Posted to About the Indiana Law Blog

Ind. Gov't. - 5-year Mitchell City Council member may never have lived in the city

Krystal Slaten of the Bedford Times-Mail has an interesting report - some quotes:

MITCHELL — The issue hotly debated during Monday night’s city council meeting in Mitchell was whether or not Everett Ferrel, a five-year veteran of the council, could rightfully serve in his elected capacity.

That’s because Ferrel recently learned he does not live in the city limits.

He doesn’t pay city taxes. However, he’s afforded city services and votes in municipal elections.

Ferrel said his property was supposed to be annexed into the city in 1979, and he assumed that happened. Not long ago, however, he attempted to sign property over to his daughter and learned his home was not within city boundaries.

“I’m going to see my attorney tomorrow,” Ferrel said after the council meeting. “It’s going to come to a lawsuit. I am not vacating my seat. We’ll fight this.

Monday night’s council meeting started off with prayer and the Pledge of Allegiance. Before taking the roll call, however, Mitchell Mayor Dan Terrell read a prepared statement about Ferrel’s council qualifications.

“Within the past week, one of the council members has informed me that he does not reside within the city limits of Mitchell,” Terrell read. “Last week, Everett Ferrel told me that for a number of years he believed he lived within the city limits, but that he now knows his residence is not inside the city.

“... Under Indiana Code section 36-4-5-3, as the mayor, I am required to enforce the ordinance of the city and statutes of the state. With the information I have, and upon advice of the city attorney, I believe I must take action on this matter. Accordingly, as Mr. Ferrel has ceased to be resident of the city of Mitchell, by the terms of the Indiana Code, he forfeits his office. I declare his office vacant, and I will notify the county clerk at my next opportunity.”

Ferrel took the opportunity to clarify.

“I haven’t moved, and I am not vacating this seat,” he said. “This was a clerical, man-made error. I have a signed affidavit from Jerry Hancock (Mitchell’s mayor from 1968-2000) saying that property was supposed to be annexed into the city in 1979.”

Terrell said he believes the affidavit means little.

“You must have something in writing from that time period,” Terrell said. “We have found nothing existing saying that was supposed to be annexed or that was the intention of the council at that time. Anyone can swear 30 years later that it was supposed to be that way, but if there’s nothing in writing from that time period, then there’s not much to go on.”

Dale Simmons, co-general counsel for the Indiana Election Division for the Secretary of State’s office in Indianapolis, said that “residency is a requirement that applies throughout the term of someone who holds office as a common councilman.” He cited Indiana Code 36-4-6-2 as the statute that applies in this situation. It reads, “... A member of the legislative body must reside within ... the city as provided in Article 6, Section 6 of the Constitution of the State of Indiana; and ... the district from which the member was elected, if applicable. ... A member forfeits office if the member ceases to be a resident of the district or city.”

“Once a person has assumed office and is currently holding office illegally because of their lack of residency, then there are several possible remedies,” Simmons wrote in an e-mail response to the Times-Mail, “however, none of these specifically indicate that it is the right or duty of the county election board to pursue these remedies. Any remedy at this point must be one pursued in court.”

If the court decides Ferrel must vacate the office he’s held for the past five years, it does not discount the work he’s done while on the council, Simmons noted.

“Even if someone was removed from office by a court action because they failed to meet the residency requirements for holding that office that does not mean all the actions taken by that person while holding office would be invalidated,” Simmons wrote. “The court cases considering this issue indicate that a person who takes office under a claim of right and holds that office is a de facto office holder and their actions are valid until removed.”

Interesting. There is more, and also a side-bar.

Posted by Marcia Oddi on November 4, 2008 01:04 PM
Posted to Indiana Government

Ind. Law - "Impact of Photo Identification at the Polls Through an Examination of Provisional Ballots"

A new and timely election law article (40 pp., including 18 pp. data), forthcoming in the Journal Law and Politics, authored by Michael J. Pitts, Associate Professor, Indiana University School of Law - Indianapolis, may be accessed here via SSRN. The abstract:

Despite the Supreme Court's opinion from last term in Crawford v. Marion County Election Board, it seems like the debate over laws that require prospective voters at the polls to present government-issued photo identification will continue to rage in both legislatures and courtrooms throughout America. However, one of the fundamental missing pieces in this debate is an empirical assessment of how many prospective voters are unable to cast a countable ballot because of photo identification laws. This article analyzes data related to the 2008 Indiana primary election to determine: (1) how many voters arrived at the polling place without a photo identification and then cast a provisional ballot; and (2) how many of the photo identification-related provisional ballots were ultimately counted. Importantly, the analysis presented here takes a unique empirical approach because as part of this research actual documents related to provisional ballots were obtained. In the end, it is estimated that at the 2008 primary election nearly 400 persons cast provisional ballots because they lacked photo identification and the vast majority (80% of those ballots) were not counted. After presenting the numbers, this Article concludes with a discussion of the limits of this study and how opponents and proponents of photo identification might employ this research in the ongoing debate over photo identification.

Posted by Marcia Oddi on November 4, 2008 11:53 AM
Posted to Indiana Law

Law - "As Building Projects Collapse, Suits Pile Up"

Lynne Marek of The National Law Journal reported yesterday on the legal aspects of the commercial building crisis. Some quotes:

Litigation is cropping up across the country over multimillion-dollar hotel, condominium and manufacturing building developments that unraveled as U.S. financing tightened during the past year, leaving financiers, developers and contractors to fight over who should pay for the failed deals.

Although many developments have fallen into foreclosure in the past few years with courts sorting out claims, others that stalled or stopped are now devolving into litigation as parties that invested money, labor and materials in the projects turn on each other to recoup what they can.

From a $181 million hotel envisioned for Norfolk, Va., to a planned $530 million auto parts plant in Tipton, Ind., lawsuits are popping up over deals gone bad. At the same time, some companies are waiting in the wings, assessing whether to sue or hope that the improving credit market will solve their problems, said litigators being drawn into the real estate disputes. * * *

The first step that construction companies and contractors often take when a development project stalls is to place liens against the developers. While liens don't always turn into litigation, it becomes more likely over time as the liens pile up and as claimants encounter their own financial pressures. Laws regarding liens vary from state to state, but generally a claimant has up to six months to file a lawsuit to enforce a lien.

In Chicago, liens are stacking up against two major developments that have slowed. The planned 1,200-condominium building known as "The Chicago Spire" for its corkscrew shape, designed by Santiago Calatrava, is just a hole in the ground near the shores of Lake Michigan, and the luxury Shangri-la Hotel that's slated to open in downtown Chicago in 2011 has only 27 of its 90 stories completed.

Posted by Marcia Oddi on November 4, 2008 09:28 AM
Posted to General Law Related

Law - "Online Law Grads: Older, No Slackers"

Karen Sloan of The National Law Journal has a long and interesting story today on online law schools. A sample:

Online schools still have something to prove when it comes to the performance of their graduates on standardized law exams.

Of the approximately 525 students who have graduated from Concord with juris doctor degrees since the school opened, slightly more than 200 have been admitted to the California Bar, said Skibbe. Some graduates opt not to sit for the bar, while others don't pass.

Concord, generally, has the highest bar passage rates among online and correspondence law schools, but it still has a significantly lower passage rate than ABA-accredited schools overall. For example, the passage rate for first-time test takers at ABA-accredited schools in California was 62 percent for the February bar. Concord had a first-time pass rate of 38 percent. Skibbe said Concord's overall pass rate is 50 percent.

The statistics for the baby bar also show room for improvement. Correspondence and online law school students had a 22 percent overall pass rate last October.

Like it or not, online law schools are here to stay. That's the opinion of Concord Dean Barry Currier, who said it's just a matter of time before distance-education law schools are eligible for ABA accreditation.

Online and correspondence law schools don't meet current ABA-accreditation standards. That's because ABA standards measure factors such as libraries, facilities, clinical experience and interaction between students and professors, Askew said. It's virtually impossible to measure those elements when it comes to online schools, thus the standards would have to be dramatically modified to cover those programs.

Online coursework is slowly becoming more accepted in the law school community. The ABA modified its accreditation standards in 2003 to allow students to take 12 of the 90 credit courses required for a juris doctor degree online.

That limit could increase in the future, but that discussion hasn't taken place, Askew said.

"Distance education is growing dramatically at the graduate level. Who knows what will happen five years from now?" he said.

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

Courts - "Justices Agree to Consider DNA Case"

Adam Liptak reports today in the NY Times that the SCOTUS "agreed Monday to decide whether people convicted of crimes have a constitutional right to test DNA evidence that could prove their innocence." More:

The case pits the value of finality in criminal cases against the possibility of proving an inmate’s innocence long after trials and appeals are concluded.

In April, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ordered prosecutors in Alaska to turn over DNA evidence that had been used to convict William G. Osborne of kidnapping and raping a prostitute. The appeals court said that biological evidence — hairs and semen — could be subjected to more sophisticated DNA testing than had been used by the prosecution to implicate Mr. Osborne. * * *

The federal government and 44 states — but not Alaska — have laws allowing post-conviction DNA testing. * * *

The Supreme Court has in earlier cases left open the question of whether people convicted after fair trials may nonetheless file federal claims based solely on evidence that they are in fact innocent.

Barry Scheck, a director of the Innocence Project at Cardozo School of Law, which represents Mr. Osborne, said he could not understand why prosecutors in Alaska have opposed testing.

“The State of Alaska concedes that DNA testing could prove William Osborne’s innocence, while fighting his right to testing,” Mr. Scheck said. “Why would anyone be afraid to learn the truth in this case? There is no rational reason to deny DNA testing that could prove innocence or confirm guilt.”

For more, see this entry from The Volokh Conspiracy blog.

Posted by Marcia Oddi on November 4, 2008 09:11 AM
Posted to Courts in general

Ind.Courts - "Challenged absentee ballots should be set aside for later review, high court finds"

In the Indianapolis Star today, Jon Murray gives an overview of yesterday's election challenges. Some quotes:

Conflicting court rulings handed down Monday gave Marion County election officials whiplash as they tried to keep up with a legal fight over how to handle absentee ballots challenged at the polls today.

But when the dust cleared, the upshot remained the same: If you've already cast an absentee ballot and your eligibility to vote is challenged today at your precinct, your ballot will be set aside until a bipartisan team can review it later this week.

That was decided by a unanimous decision Monday evening by the Indiana Supreme Court, which sided with the Marion County Republican Party. The ruling brought quick criticism from county Democrats.

It came less than two hours after an Indiana Court of Appeals panel, voting 2-1, issued a stay halting a Circuit Court ruling from taking effect. In its decision, the Supreme Court vacated the stay.

The high court let stand Marion Circuit Judge Theodore Sosin's ruling Friday that the Election Board would violate Indiana law by telling poll workers to decide the merits of absentee challenges immediately.

Instead, Monday's ruling means any ballots that are challenged won't show up in tonight's results but will be added later if they are deemed valid.

A record 93,000 Marion County voters have submitted absentee ballots at early voting centers or by mail -- about 13 percent of all registered voters. * * *

The dispute between the Republicans and the Election Board centers on conflicting readings of Indiana law.

The statute does not fully spell out when absentee challenges should be handled or by whom, but it refers to the provisional voting process used when a walk-in voter's residency or eligibility is challenged.

In concurring opinions, two Supreme Court justices noted the law's murkiness.

"Thus, on the one hand the statute suggests that a challenged vote must be treated as a provisional ballot and counted later if at all, while on the other hand a challenged absentee vote must be counted at the precinct polling place so long as the affidavit shows the voter is a legal voter of the precinct," Justice Robert D. Rucker wrote. "These provisions are at least ambiguous and at most simply irreconcilable."

But most Indiana counties follow the Republicans' interpretation, and Marion County also has in the past.

Rucker cited as compelling an election handbook put out this year by the Indiana secretary of state and the Indiana Election Division. It also advises setting challenged absentee ballots aside to be counted after Election Day.

In a related story today, Maureen Groppe of the Star Washington Bureau reports:

Six months after its primary-day embarrassment, Lake County has taken steps to avoid a repeat of its slow tally, though its ballot counting could still be delayed by the volume of votes and the way absentee votes will be counted.

Lake County election officials say increased staff and more machine counters are some of the changes that will enable them to have 98 percent of the vote counted by 11 p.m. EST today. * * *

Northwest Indiana's Lake County is still the state's only urban county that counts its absentee ballots in a central location. That's slower than counting them at multiple precincts, according to Secretary of State Todd Rokita. * * *

Rokita said he's not going to judge Lake County's decision, because it could have good reason for wanting a central location, one close to the county's bipartisan election board, which can handle any disputes.

"The fact of the matter is, counties have up to 10 days to legally report their results to us," Rokita said. "And I am not going to sacrifice fairness or accuracy for speed."

Lake County's early voting has already generated controversy. The Indiana Court of Appeals stepped in last week to uphold the legality of early-voting sites in three Lake County cities. Republicans had sued to close the sites, saying they violated local election rules and created a risk for voter fraud. Democrats accused Republicans of trying to suppress the vote.

Lake County stumbled into the national spotlight during Indiana's primary when it took far longer to report its vote totals than Indiana's 91 other counties.

Posted by Marcia Oddi on November 4, 2008 08:30 AM
Posted to Ind. Sup.Ct. Decisions

Monday, November 03, 2008

Ind. Courts - No last word yet in Marion County early voting case?

BREAKING: The Supreme Court has granted transfer and vacated the just-issued earlier this afternoon Order of the Court of Appeals imposing the stay. "The trial court's Order granting the injunction is reinstated and remains in effect pending final resolution of this appeal or further order from the court." Per Randall T. Shepard, Chief Justice.

The new case number: 49S00-0811-CV-586.

MORE? Yes, just received the Supreme Court's 5-page Order, filed at about 5:20 PM. Interestingly, it is 5-0. Access it here.

In his concurring opinion, Justice Sullivan notes:

Given that there has been no allegation in this case of any fraudulent absentee voting taking place, that tendering a fraudulent absentee ballot is a crime, and that falsely challenging an absentee ballot is perjury, I expect few if any ballots to be implicated by this decision.

See earlier ILB entries from today here, here, and here.

Posted by Marcia Oddi on November 3, 2008 05:40 PM
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Courts - Yet more on Marion County early voting case

The Court of Appeals has just issued this ruling:

HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS FOLLOWS:
APPELLEES' VERIFIED MOTION TO CONTINUE TO HOLD THE BOARD'S EMERGENCY STAY REQUEST IN ABEYANCE UNTIL THE INDIANA SUPREME COURT RULES ON APPELLEES' PENDING APPELLATE RULE 56(A) MOTION IS DENIED.
APPELLANT'S EMERGENCY MOTION FOR STAY PENDING APPEAL IS GRANTED.
JOHN G. BAKER, CHIEF JUDGE BAKER, C.J., MATHIAS, J., CONCUR. BROWN, J., DISSENTS WITH OPINION.

Here is the Order in Marion Co. Election Board v. Raymond J. Schoettle, Erica Pugh, et al. Chief Judge Baker writes:

As another panel of this court said just last week, "in interpreting Indiana's election laws, we respect the franchise: "In the absence of fraud, election statutes generally will be liberally construed to guarantee to the elector an opportunity to freely cast his ballot, to prevent his disenfranchisement and to uphold the will of the electorate," Curley v. Lake County Board of Elections and Registration. No. 45A03-08IO-CV-512. slip op. p. 17 (Ind. Ct. App. Oct 31. 2008) (quoting Brown v. Grzcskowiak. 230 Ind. 110. 128. 101 N.F.2d 639. 646 (1951 ). Thus. we must view the arguments before us with eyes that are lightly focused on the electorate and the franchise that are the heart of American government.
The statutes at issue contemplate a variety of problems that may arise with absentee ballots and explain how to resolve those problems. * * *
Before us now. however, are are the legislature's instructions on how to proceed if a written, emailed, or in-person absentee ballot is challenged prior to being placed in the ballot box on Election Day. Before Election Day. a challenge to the signature contained on the absentee ballot is resolved under Indiana Code sections 3-11-10-4. -5. -6. and -7. On Election Day, an absentee ballot challenge is made "for the reason that the absentee voter is not a legal voter of the precinct where the ballot is being cast. I.C. § 3-11-10-21. * * *
We hold that residency-based challenges to absentee ballots that occur on Election Day are to be resolved by the precinct boards according to the procedures outlined in Article 3-11.7: in other words, precinct boards are to take the same steps on Election Day regarding challenged absentee ballots as the county election board must take in the days following Election Day to determine whether a challenged provisional ballot is valid and must be counted or invalid and must be discarded. Thus. we conclude that the trial court erred by finding that the appellees are likely to succeed on the merits and entering a preliminary injunction in their favor.
For all of these reasons, we hereby order that the preliminary injunction issued by the trial court is dissolved. Furthermore, we order that the declaratory judgment entered by the trial court is stayed pending an appeal thereof. Should the parties wish to submit full briefs and further authority in support of their respective positions on the declaratory judgment, we direct the appellants to submit their materials within fifteen days of this order and the appellees to submit their materials vviihin fifteen days of the filing of the appellants" materials.

Posted by Marcia Oddi on November 3, 2008 04:21 PM
Posted to Indiana Courts

Courts - "Juror in Stevens Case: My Father is not Dead"

This is not something the ILB would ordinarily cover, but it is too bizarre to miss. This entry from the Blog of Legal Times begins (but be sure to read the rest of it):

The juror in the trial of Alaska Sen. Ted Stevens who abruptly left the panel before a verdict was reached lied when she told the court her father had died. The real reason she said she could not deliberate further? The juror wanted to attend an event in California—the 2008 Breeders' Cup World Championships at Santa Anita Park.

Posted by Marcia Oddi on November 3, 2008 03:16 PM
Posted to Courts in general

Ind. Courts - Still more on Marion County early voting case

Updating this ILB entry last updated late this morning, Jon Murray has posted on the Indianapolis Star site a good overview of what is going on, that begins:

The Indiana Court of Appeals or the state Supreme Court are likely to weigh in today on a Marion County judge's ruling directing poll workers on Election Day to set aside any challenged absentee ballots.

Courts - "Supreme Court Hears Case Involving Drug Labels" [Updated]

Today the SCOTUS hears oral arguments in the case of Wyeth v. Levine (see a list of earlier ILB entries here). Earlier this morning NPR's Nina Totenberg had an excellent, nearly 8 minute, report on the case. Listen here.

[Updated 11/4/08] Here is Tony Mauro's report on the oral argument in the Legal Times. It begins:

The Supreme Court appeared torn Monday over whether a federal law on drug labeling should pre-empt a jury's $7 million verdict against Wyeth in the case of a Vermont woman who lost her arm to gangrene after being given a Wyeth drug for a migraine headache.

The case, Wyeth v. Levine, has been billed as a major milestone in the effort by the pharmaceutical and other industries to free themselves of unpredictable state court tort litigation by embracing instead a single federal regulatory regime -- in short, federal pre-emption.

But based on the hour-long argument Monday, the case could be decided narrowly, giving little guidance about broader pre-emption issues beyond the area of drug labeling.

Posted by Marcia Oddi on November 3, 2008 11:55 AM
Posted to Courts in general

Ind. Courts - More on Marion County early voting case [Updated]

[Note: This entry has been UPDATED and moved to the top of the list.]

Updating this ILB entry from Friday, Nov. 1, we are awaiting the Plaintiffs' response to the COA order issued late Friday that Plaintiffs respond to the Marion County Election Bd.'s motion for emergency stay by 9 am Monday.

[More] Sorry, the earlier Cause # was wrong, it was from one of the documents I posted this weekend. The correct one is 49A02-0810-CV-979.

I now have the Plaintiff/Appellees' documents. They have requested that the Indiana Supreme Court take the case and filed with the COA a 38-page "Verified Motion to Continue to Hold the Board's Emergency Stay Request in Abeyance until the Indiana Supreme Court Rules on Appellees' Pending Appellate Rule 56(A) Motion & Response to the Board's Stay Request" (here) and with the Supreme Court a 52-page "Emergency Verified Appellate Rule 56(A) Motion To Accept Jurisdiction Over Appeal" (here).

[More] Here is the Docket as of 10/2/08.

[Updated at 11:35 AM] Here is the 8-page Marion County Election Board's Response to Appellete Rule 56(A) Motion and to Appellees' Opposition to Stay Pending Appeal.

Posted by Marcia Oddi on November 3, 2008 11:35 AM
Posted to Ind. App.Ct. Decisions

Ind. Law - "It's the law" today examines election laws

Ken Kosky's "It's the Law" column in the NWI Times this week focuses on election laws. From the article:

A huge voter turnout is expected Tuesday because the presidential race Indiana holds key votes for the first time in decades.

But with extra people heading to polls -- many of them first-time voters -- there's an increased chance for violations of election law. In an effort to prevent problems, officials are reminding voters, candidates and supporters about what is expected of them.

First and foremost, "Nobody gets in their place of voting without first showing a valid photo ID. That could be a driver's license, a state ID or a passport," said Kathryn Kozuszek, Democratic director for voter registration.

Procrastinators can get an ID from the Bureau of Motor Vehicles today or tomorrow and still vote, she said. [ILB - see below]

Next, Kozuszek reminds voters that electioneering -- which essentially means campaigning -- is prohibited inside polling places or along the 50-foot chute leading into the polling place.

That means candidates must stand more than 50 feet away to hand out flyers, buttons or other items. And such items can't be brought inside. Kozuszek said people who show up wearing candidate shirts need to turn them inside out, and they need to stuff buttons and flyers into their pockets.

The 50-foot chute will play a larger role this election than just a buffer from campaigning. Kozuszek said poll workers will, at exactly 6 p.m., identify the last person in line to vote. Anyone who arrives after that will be turned away.

As for vote fraud, Kozuszek doesn't anticipate any problems.

"In Porter County, out of all those new registrations -- close to 5,000 since this spring -- only two were questionable," she said.

Kozuszek does want to remind voters that if they have moved, they can't vote at their old precinct without filling out a form at the Voter Registration office.

Re obtaining an ID from the BMV - don't go unprepared. Here is the BMV page on what kind of ID documentation you need in order to be issued a BMV identification card. Here is the simplified list.

Posted by Marcia Oddi on November 3, 2008 10:40 AM
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending Oct. 31, 2008

Here is the just issued transfer list for the week ending Oct. 31, 2008. It is 3 pages long.

One transfer was granted last week, in the case of Mahmoud M. Basileh v. Arwa G. Alghusain - see the ILB summary of the 7/28/08 opinion here.

A notable decision denied transfer was the John Meyer II appeal - see ILB entry here from Oct. 31st.

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 November 3, 2008 10:12 AM
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

This Thursday, Nov. 6th:

9:00 AM - Keith Myers v. Wesley C. Leedy - Following a bench trial on a tenant's complaint for damages against a land sale vendor, after forfeiture of the vendee-landlord's interest, the trial court entered judgment in favor of the tenant. The Court of Appeals reversed in an unpublished decision, holding that the tenant's interest in the property did not survive the forfeiture of his landlord's interest. Myers v. Leedy, No. 85A02-0711-CV-999 (Ind. Ct. App. 4/30/2008), vacated. [See ILB summary here - 3rd NFP opinion.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
Attorney for Myers: T. Andrew Perkins, Rochester, IN. Attorney for Leedy: Jeffry G. Price, Peru, IN.

9:45 AM - Brandon Stanley v. Danny Walker - Following a trial, the Johnson Superior Court entered a judgment for plaintiff Walker in this personal injury case. The Court of Appeals affirmed and held that the trial court correctly applied the Collateral Source Statute to preclude the defendant Stanley from introducing evidence that the amount of the plaintiff's original medical bills had been reduce by "write-offs" negotiated between the plaintiff's health insurance company and medical service providers. Stanley v. Walker, 888 N.E.2d 222 (Ind. Ct. App. 6/3/2008), vacated. [See ILB summary here.] The Supreme Court has granted a petition to transfer and has assumed jurisdiction over the appeal.
Attorneys for Stanley: Mark A. Holloway and Bradley D. Pippin, Indianapolis, IN. Attorneys for Walker: David W. Stone, IV, Anderson, IN. Michael Phelps, Bloomington, IN. Attorneys for Amicus Curiae Defense Trial Counsel of Indiana: Donald B. Kite, Sr. and Kelly R. Eskew, Indianapolis, IN. James D. Johnson, Evansville, IN. Attorneys for Amicus Curiae Ins. Institute of Indiana, Inc.: Bryan H. Babb and Kelly Scanlan, Indianapolis, IN. Attorney for Amicus Curiae Indiana Trial Lawyers Association: Mark A. Scott, Kokomo, IN.

10:30 AM - R.J.G. v. State of Indiana - The Porter Circuit Court, Juvenile Division, adjudicated R.J.G. a delinquent and entered a dispositional order committing R.J.G. to the Department of Correction ("DOC") and placing him on probation upon his release from the DOC. R.J.G. appealed, arguing the court could not enter a single dispositional order that both commitment him to the DOC and placed him on probation upon his release. The Court of Appeals affirmed. R.J.G. v. State, 888 N.E.2d 213 (Ind. Ct. App. 5/29/2008), vacated. [See ILB summary here - 2nd case] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
Attorney for R.J.G.: T. Edward Page, Merrillville, IN. Attorney for State: Ellen H. Meilaender, Indianapolis, IN.

Webcasts will be available here.

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

This Wednesday, Nov. 5th:

2:00 PM - Karen Long & Clifford Thorson vs. Biomet, Inc., et al - On September 21, 2006, the plaintiff shareholders brought a derivative action against the former directors and board members of Biomet, Inc., alleging their improper backdating of stock options from 1996 - 2000. They appeal the dismissal of their action subsequent to the sale Biomet, Inc. on September 25, 2007. 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 Tuesday, Nov. 4th:

12:00 PM - Mercho-Roushdi-Shoemaker-Dilley-Thoraco-Vascular Corporation vs. Dr. James W. Blatchford, III & Dr. Eve Cieutat - Mercho-Roushdi-Shoemaker-Dilley Thoraco-Vascular Corporation (MRSD) hired Dr. James Blatchford III (Blatchford) and Dr. Eve Cieutat (Cieutat) to provide surgical services. Blatchford and Cieutat signed agreements that contained covenants not to compete with MRSD. The relationship between the parties deteriorated, and Blatchford and Cieutat began practicing in competition with MRSD. Blatchford and Cieutat filed a lawsuit against MRSD, and MRSD filed a counterclaim, alleging that Blatchford and Cieutat were practicing in violation of the covenants not to compete. The trial court granted summary judgment in favor of Blatchford and Cieutat on MRSD's counterclaim, concluding that the covenant not to compete was unreasonably restrictive and therefore unenforceable. MRSD now appeals the trial court's decision. The Scheduled Panel Members are: Judges Riley, Bailey and Bradford. [Where: Scottish Rite Cathedral, 650 North Meridian Street, Indianapolis, Indiana] Note: I double-checked the date.

This Thursday, Nov. 6th:

10:30 PM - Brandon Philson vs. State of Indiana - This case deals with Indiana Code 31-30-1-4, which vests automatic jurisdiction over juveniles at least sixteen years old in adult court for certain offenses, including rape and any offense that is based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan under Indiana Code 35-34-1-9(a)(2). Here, Brandon Philson was charged with rape, and charges of child molesting (which were not listed in Indiana Code 31-30-1-4) were joined with it. Philson was then acquitted of rape but convicted of one of the joined charges. The question is whether the adult court retains jurisdiction or whether jurisdiction vests in the juvenile court. This appears to be a question of first impression in our state. The Scheduled Panel Members are: Judges Kirsch, Vaidik and Crone. [Where: Indiana Court of Appeals Courtroom]

Posted by Marcia Oddi on November 3, 2008 06:02 AM
Posted to Upcoming Oral Arguments

Sunday, November 02, 2008

Law - "Was There a Loan It Didn’t Like?"

The NY Times Pulitzer-winning business and finance editor Gretchen Morgenson has a long column today about the testimony of former Washington Mutual senior mortgage underwriter, Keysha Cooper:

Ms. Cooper is one of 89 employees whose stories fill a voluminous complaint filed against officers of the company by the Ontario Teachers’ Pension Plan board, a big shareholder. Topping the list of defendants is Kerry K. Killinger, the WaMu chief executive who was ousted in mid-September.

WaMu was seized by federal regulators in late September, the biggest bank failure in the nation’s history. It was sold to JPMorgan Chase for $1.9 billion.

The shareholder complaint depicts WaMu’s mortgage lending operation as a boiler room where volume was paramount and questionable loans were pushed through because they were more profitable to the company.

When underwriters refused to approve dubious loans, they were punished, she says.

Posted by Marcia Oddi on November 2, 2008 02:14 PM
Posted to General Law Related

Ind. Courts - "LaGrange farm sued over heifers: Manager says Ohio company knew cows it bought were sterile"

Rebecca S. Green of the Fort Wayne Journal Gazette had a fascinating story Oct. 30th that the ILB nearly missed:

A LaGrange County farm is at the center of a federal lawsuit filed by an Ohio farm, alleging hundreds of thousands of dollars in damages because of the sale of nearly 300 sterile cows.

But the manager of Brigitte Holmes Livestock Co. in Shipshewana said the Ohio farm knew exactly what it was buying and that there are signatures to prove it.

In a lawsuit filed late last week in U.S. District Court in Fort Wayne, officials with LDT Keller Farms in Fort Recovery, Ohio, sued Brigitte Holmes Livestock Co., Brigitte Holmes, Samuel Holmes and Mervin Mishler, all of LaGrange County.

Three Loogootee farmers – Levi Graber, Joseph Graber and Freeman Raber – are also named as defendants.

According to court documents, Brigitte Holmes Livestock bought 284 Holstein heifers between May 10, 2006, and Jan. 31, 2007, and all but three of the cows turned out to be sterile.

Each of the heifers had a male twin. In such situations, females are almost always sterile and are known as “freemartins.” LDT Keller Farms alleges that Brigitte Holmes Livestock bought the heifers for less than $50 apiece.

Brigitte Holmes Livestock then sold the heifers directly to LDT Keller Farms or to the Grabers and Raber, who then sold them to LDT Keller Farms, according to court documents.

In total, LDT paid $480,000 for the 284 cows. In the 10-count lawsuit, LDT Keller Farms alleges multiple counts of breach of contract, breach of warranty fitness for a particular purpose, violation of the federal packers and stockyard act and fraud.

LDT seeks $480,000 in compensatory damages and punitive damages of more than $1.4 million.

The attorney for Brigitte Holmes Livestock Co. declined to comment on the pending litigation, but Samuel Holmes, manager of the company, said LDT Keller Farms’ allegations are false and that he has the paperwork to back it up.

“He bought them not to be good, to be ‘iffys,’ ” Holmes said. “It’s wrote all over the bills, ‘breedability not guaranteed.’ We have our evidence in black and white. He knows how he bought ’em.”

Brigitte Holmes Livestock plans to countersue LDT Keller Farms, Samuel Holmes said.

Well, yes, I wanted to know more, and found this information from a genetics site at Colorado State University:

Chimeric cattle are not at all rare. When a cow has twins, it is almost inevitable that anastomoses (areas of joining) develop between the fetal circulatory systems early in gestation. This leads to exchange of blood between the two fetuses. Fetal blood contains hematopoietic stem cells, and each fetus is permanently "seeded" with stem cells from its twin. The result is that both animals are hematopoietic chimeras. A variable fraction of all their cells that are derived from hematopoietic stem cells (peripheral blood cells, Kupffer cells in the liver, lymphocytes and macrophages in lymph nodes and spleen, etc) are from the twin.

Major clinical signifcance is seen when one fetus is a female and one a male. In such cases, the female fetus is exposed to hormones from the male and is masculinized. Such female cattle are called freemartins. The external genital tract of a freemartin looks like a female, although usually infantile. The degree to which the internal genital tract is masculinized varies, but typically, the vagina is very short and uterine horns are rudimentary. Pretty obviously, these animals are sterile. Freemartins are seen occasionally in other species, although much less commonly than in cattle, probably because those animals do not have the propensity seen in cattle to form vascular anastomoses among fetuses early in gestation.

The case is LDT Keller Farms LLC et al v. Brigitte Holmes Livestock Co Inc et al. Here is the 27-page complaint, filed 10/17/08. Here is a 10/21/08 order: "Plaintiffs are ORDERED to filed an amended complaint forthwith that adequately articulates the citizenship of each party, tracing the citizenship of all unincorporated associations through all applicable layers of ownership."

Posted by Marcia Oddi on November 2, 2008 12:43 PM
Posted to Indiana Courts

Ind. Courts - "Judgment call: 3 justices are on the ballot"

An article today by Jon Murray of the Indianapolis Star:

Hoosier voters will have a chance to throw out a majority of the Indiana Supreme Court on Tuesday.

If history is a guide, the justices shouldn't be sweating.

Three of the five Supreme Court justices are up for retention votes, joining one Indiana Court of Appeals judge and the State Tax Court judge.

It's possibly the least-noticed portion of the ballot this year. As long as at least half of the voters mark "yes," all will keep their jobs for additional 10-year terms.

While voters still elect county judges, since 1972, Indiana's appellate judges have been appointed by the governor and then faced periodic retention votes. No judge has lost such a vote.

Up for retention on Election Day are Supreme Court Chief Justice Randall T. Shepard and justices Brent E. Dickson and Theodore R. Boehm; Appeals Court Judge Carr L. Darden; and Tax Court Judge Thomas G. Fisher.

The five Supreme Court justices and 15 appeals court judges face retention in staggered election cycles.

For most voters, the unfamiliar names are unlikely to provoke much consideration in the voting booth.

Even so, said Noblesville attorney Douglas Church, "I think it's important that they vote. . . . We have a highly competent and qualified group of judges up for retention."

If you don't trust Church's assessment, a survey by the Indiana State Bar Association showed wide support for the judges among other lawyers. Approval rates of the five judges ranged from 83 percent to 90 percent among 1,500 attorneys who cast ballots. The survey had an 18 percent response rate.

"These are the people who actually have day-to-day exposure to the opinions (issued by the judges)," said Church, who is the bar association's immediate past president.

In some states -- including all four surrounding Indiana -- appellate judges are elected by voters, often in contested races. They sometimes run TV ads and stump for votes.

Indiana's system is a hybrid meant to reduce politics on the benches of the Supreme Court and Court of Appeals, which have the power to set precedent and reverse trial court decisions. The Indiana Supreme Court is the state's court of last resort.

Here is the ILB entry reporting the ISBA poll results. And by clicking the link in the upper right-hand corner of the ILB, you can find a list of all ILB entries on this year's retention election, including links to newspaper stories and editorials.

Posted by Marcia Oddi on November 2, 2008 12:33 PM
Posted to Indiana Courts

Not law but - "JG editorial staff ‘best in show'"

From today's Fort Wayne Journal Gazette:

The Journal Gazette’s editorial page staff won first place last week in the Editorial Excellence Contest sponsored by the University of Kansas on behalf of the Inland Daily Press Association.

Editorial page editor Tracy Warner and editorial writers Karen Francisco and Stacey Stumpf competed against newspapers with circulations of more than 25,001 and also won the Sweepstakes. That means their editorials were the best in show in all categories. * * *

The judges wrote: “The Journal Gazette’s editorials were hard-biting and clearly the product of a watchdog newspaper that holds government accountable to serve the public good. Each of the five pieces submitted had a strong focus, made well-supported arguments, and presented a logical and practical proposal for action. As importantly, they were written with flair. Praise to the editors for imbuing the tone and turn of phrase that evokes images of a neighbor who is thoughtful and skeptical, rather than knee-jerk and strident.”

Well deserved, IMHO.

Posted by Marcia Oddi on November 2, 2008 12:22 PM
Posted to General News

Saturday, November 01, 2008

Ind. Courts - Documents in: "Marion Co. GOP seeks ballot scrutiny" [Corrected]

[Updated and revised at 6:50 PM]

Updating this entry from earlier today on the arguments in Circuit Judge Theodore Sosin's courtroom Friday, here is the judge's 10/31/08 ruling in Schoettle, et al v. Marion County Election Bd.

Here are the pleadings filed thereafter in the Court of Appeals Friday afternoon: the 14-page Emergency Motion for Stay Pending Appeal and the 3-page Request for Schedule ("requests that this Court set a schedule for disposition of the motion for stay pending appeal so that the motion is decided before the polls open on November 4, 2008.")

And here is Court of Appeals 2-page Order granting Appellant MCEB's Request for Schedule (requiring the Republican Plaintiffs to respond to the motion for emergency stay by 9 am Monday) and holding in abeyance Appellant's Emergency Motion for Stay Pending Appeal. A source reports "[the COA] put this out electronically at 11:45 p.m." Friday.

There is no appellate docket available yet. The number is 49A05-0810-CV-637.

Posted by Marcia Oddi on November 1, 2008 03:13 PM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Answers to questions on the JTAC case management system

JTAC, the Indiana Supreme Court's Judicial Technology and Automation Project Committee, has a blog with occasional entries - access it here.

The Oct. 3rd entry announces: "We have just posted a new document to our website listing answers to frequently asked questions about the Odyssey CMS." Access the FAQ here. It is interesting reading. The front page states that the following "Questions regarding the May 13, 2002 Indiana Supreme Court Policy Statement on Trial Court Case Management Systems" are answered within the document, namely:

• Is the May 13, 2002 Indiana Supreme Court Policy Statement on Trial Court Case Management Systems still applicable? (Page 3)

• Section 4 of the Supreme Court Policy Statement states that “Any county that elects, at its expense, to upgrade substantially an existing or acquire a new case management system other than the statewide case management system may do so only with the written permission of the Division.” What is an “upgrade” in the eyes of the Division? (Page 4)

• What is the process for receiving approval from the Division for upgrading a system? (Page 4)

• What is the process for receiving approval from the Division for purchasing a new system? (Page 5)

• If I intend to utilize the Odyssey CMS, should I consider upgrading my system in the meantime? (Page 5)

• Are there any other Supreme Court Rules that I need to be aware of when contemplating upgrading or purchasing a CMS? (Page 6)

• May I receive financial assistance from JTAC to help upgrade my legacy system? (Page 6)

The answers begin on p. 4.

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

Law - More on: Judge orders Michigan to Allow Wine Shipping by Out-of-State Retailers

Dan & Krista Stockman, authors of Uncorked - A column for those who want to love wine, but don't know how, that appears weekends in the Fort Wayne Journal Gazette, wrote a column this week that updates this ILB entry from Oct. 3rd. The Stockmans begin:

The landmark Supreme Court case in 2005 that threw the already confused system into absolute chaos dealt only with wineries shipping their product to consumers, and did not address another, maybe equally important player in the game: wine stores.

But recent court cases in Texas and Michigan may change that.

The column ends:

After the 2005 Supreme Court decision, many state legislatures responded by banning shipping altogether. Some of the proposed laws – like Indiana's – appeared to be written by the liquor lobby itself. The General Assembly, which claims to be pro-small business, pro-family business, pro-farm and pro-free market, took a bill to regulate both in-state and out-of-state shipping, gutted it, and replaced it with language that would have essentially shut down Indiana's wine industry. If the court decisions continue on letting wine stores ship directly to consumers, you will see similar efforts all over again.

Why do you need to be able to buy wine from any store in the country and have it shipped to you?

Because wines are unique in their vintage – this is what fuels wine collectors. Here's an example: A few years ago, Krista bought Dan a bottle of Port from the year he was born, 1970. While a few stores in the area sell fine vintage Port, they carry only what their wholesaler ships them, and wholesalers carry only the current vintage. If you want an old Port, you'll need to find a store that specializes in old, vintage Port. Under the law of most states, if that store is across a state line, you're out of luck. In many states, including Indiana, even in-state stores can't use a third-party shipper.

What all this means is that the market remains tied up by government regulations, which means less competition, higher prices and fewer choices for consumers.

Posted by Marcia Oddi on November 1, 2008 01:49 PM
Posted to General Law Related

Ind. Courts - Still more on: "Marion Co. GOP seeks ballot scrutiny"

Updating this ILB entry from yesterday, Jon Murray of the Indianapolis Star reports today:

A Marion County judge ordered Friday that absentee ballots challenged at the polls on Election Day be set aside for review by bipartisan teams later in the week.

County Republicans said the ruling, issued in response to their lawsuit, is likely to end up affecting few ballots and would follow a process in place in Marion County under the previous clerk.

But it means that any ballots facing challenges won't be counted Tuesday or show up in election results that night.

Circuit Judge Theodore Sosin, a Republican, stressed after hearing four hours of arguments Friday that all valid ballots would eventually be counted.

At the center of the dispute are tens of thousands of early votes cast by mail or in person in an election drawing record interest.

Those ballots will be sent in sealed envelopes to the voters' precincts Tuesday to be counted. Republicans didn't like the way election officials, led by Democratic County Clerk Beth White, planned to advise poll workers to deal with any challenges of those votes, allowing some to be counted immediately.

A statement issued late Friday by White said the Election Board would comply with Sosin's order but planned to request an immediate review by the Indiana Court of Appeals. Sosin denied a motion by the Election Board to stay his ruling.

Sosin's order said the process White and Election Director Andy Mallon planned to use for challenged absentees would violate Indiana law.

They had said a "precinct board" -- made up of one inspector and a judge from each party -- should address on the spot any challenge based on a voter's eligibility to vote in the precinct. If a majority agrees the ballot is valid, Mallon said, they should feed it into the counter.

But Sosin wrote that the process would provide no remedy if the voter turned out to be ineligible, since ballots fed into a machine can't be tracked.

He wrote that the order applied to mail-in ballots, but those are lumped in with absentee ballots cast early in person before they're sent to the precincts.

The judge agreed with Republican Party attorney David Brooks, who argued the law's intent was that absentee ballots drawing challenges be treated the same as challenges of in-person voters Tuesday.

If their residency or eligibility is in question, such voters' ballots are set aside as provisional. After Election Day, the Election Board convenes bipartisan teams to examine voter registrations and decide whether to count the ballots.

A handbook put out by the Indiana secretary of state and the Indiana Election Board advises treating challenged absentee ballots as provisional.

Former County Clerk Doris Anne Sadler, a Republican, said Marion County followed the same rule and set aside all challenged absentee ballots when she oversaw elections, through 2006. Sadler attended Friday's hearing.

Sosin's order said the Election Board should attempt to notify absentee voters whose ballots are set aside.

Posted by Marcia Oddi on November 1, 2008 01:40 PM
Posted to Ind. Trial Ct. Decisions

Friday, October 31, 2008

Ind. Courts - Still more on: Court of Appeals hears oral argument in the Lake County early voting case [Updated]

Updating this entry from this morning, the Court of Appeals panel has issued a 29-page opinion in John B. Curley, et al vs. Lake County Board of Elections and Registration, et al . But when, and where it is, I can't tell you right now. Here is what the docket says - I just checked it:

10/31/08 ISSUED THE ENCLOSED OPINION:
AFFIRMED AND REMANDED------NAJAM, J.
MAY, J. AND ROBB, J. CONCUR
29 PAGES KM

What was affirmed? Here is the 23-page opinion of Lake County Special Judge Diane Kavadias Schneider - see this ILB entry from Oct. 22nd for details.

[Update at 3:57PM] Okay, here it is, John B. Curley, et al. v. Lake Co. Board of Elections and Registration, et al, a 29-page, 3-0 opinion filed at 3:15 PM. Judge Najam writes:

The Curley Plaintiffs, the Appellees, and the State as amicus curiae raise numerous issues for our review, including issues under Indiana’s Constitution, the Voting Rights Act, and the Constitution of the United States. But this challenge to early voting—legally described as “in-person absentee voting”—presents the court, primarily, with a question of statutory interpretation. * * *

[I]t is unnecessary to address all the claims and defenses asserted before the trial court and this court in order to decide this case.5 In addressing the broad issue of whether the Board showed by a preponderance of the evidence that it met the four requirements for the issuance of a preliminary injunction, we focus on two questions of law:

1. Whether in-person absentee voting locations at offices of the circuit court clerk are “satellite offices” for purposes of Indiana Code Sections 3-11-10-26 and 3-11-10-26.3; and

2. Whether Indiana Code Section 3-11-10-26(a)(1) requires the Board to hold in-person absentee voting only in the Board’s office.

We hold that the trial court’s order was not clearly erroneous when the court determined that offices of the circuit court clerk are not “satellite offices” and that Indiana Code Section 3-11-10-26(a)(1) does not restrict the authority of the Board of Elections to conduct in-person absentee voting in the offices of the circuit court clerk. Thus, we affirm the Preliminary Injunction. * * *

Critical to the Curley Plaintiffs’ position on appeal is their allegation that the Board clearly violated Indiana law by opening the disputed in-person absentee voting locations. More specifically, the Curley Plaintiffs assert that the Board of Elections’ decision to open in-person absentee voting sites at the offices of the circuit court clerk in Gary, Hammond, and East Chicago violates Indiana Code Sections 3-11-10-26(a)(2) and 3-11-10-26.3. * * *

The Board’s conclusion that an office of the circuit court clerk is not a satellite office for purposes of in-person absentee voting is not clearly unlawful. See I.C. §§ 3-11-10-26, 3-11-10-26.3. The Board of Elections did not clearly misinterpret the law when, in exercising its general authority over local elections, it provided for early voting in the offices of the clerk. See I.C. §§ 3-6-5.2-6, 3-11-10-26. In sum, we hold that the Board did not clearly violate the law when it authorized in-person absentee voting in offices of the circuit court clerk in Gary, Hammond, and East Chicago.

Thus, the trial court did not abuse its discretion, and its order was not clearly erroneous, when the court granted the preliminary injunction prohibiting the Board from terminating early voting in the circuit court clerk’s offices in those locations. It was reasonable for the court to conclude that the office of the circuit court clerk is not equivalent to a temporary satellite voting site selected by the Board under Section 26.3, such as a school, church, or library, but is instead a permanent absentee voting location specifically identified in the statute. And the public interest in exercising the right to vote unquestionably weighs heavily on the side of the Board’s decision to open these early voting locations, especially when the Curley Plaintiffs have wholly failed to show that they have been harmed in any way. As such, the Curley Plaintiffs are unable to satisfy the demands of the per se rule, and they have not demonstrated that the trial court clearly abused its discretion in granting injunctive relief under the standard four-prong test. Walgreen, 769 N.E.2d at 169.

Under our standard of appellate review in an appeal from the grant of a preliminary injunction, we conclude that the trial court did not abuse its discretion and that the trial court’s determination is not clearly erroneous. The court’s findings are supported in the record, and the judgment is supported by the findings. Accordingly, we affirm the preliminary injunction.

Affirmed and remanded for proceedings not inconsistent with this opinion.

[Updated 11/1/08] Ken Kusmer of the AP has a story today on yesterday's COA's ruling. A quote:

The Court of Appeals rejected Republican arguments that state law required a unanimous decision by the election board to open the satellite centers.

The Indiana Republican Party had no comment on the ruling, spokesman Jay Kenworthy said. It was unclear whether the GOP would appeal the case to the Indiana Supreme Court with only one regular business day remaining before Election Day. * * *

Republican attorney Karl Mulvaney said Thursday, in oral arguments before the appeals court, that the GOP was no longer challenging the centers over voter fraud concerns but simply wanted the legalities addressed.

Up until then, Democrats had accused Republicans of using scare tactics by raising concerns about voter fraud and said the GOP was trying to suppress votes by the poor and minorities who would favor Obama. Many of those residents lack transportation to the county's other early voting site in predominantly white Crown Point and might not be able to cast ballots on Election Day, Democrats have argued.

Posted by Marcia Oddi on October 31, 2008 03:31 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 8 today (and 26 NFP)

For publication opinions today (8):

In Term. of Parent Child Rel. of M.B. and S.B. , an important 25-page opinion, Judge Brown concludes:

A partial termination of parental rights does not exist under Indiana law. See Ind. Code § 31-35-6-4. Either the parent-child relationship survives, or it does not. Given the plain and unambiguous language of Indiana Code Section 31-35-6-4(a)(1), coupled with Indiana’s strong public policy to protect the emotional well-being of children whose parents have been either unable or unwilling to provide for their basic needs over a prolonged period of time, we conclude that Mother’s addendums to the voluntary consent forms are void ab initio and thus unenforceable as a matter of law.

Removal of the illegal addendums under the particular facts of this case, however, does not frustrate the basic purpose of the voluntary consent contracts, which were freely and voluntarily executed by Mother. Moreover, given the procedural posture of this appeal, Mother was required to establish, among other things, that HCDCS committed fraud, misrepresentation, or misconduct in order to obtain relief under Trial Rule 60 (B)(3). Simply put, we find no such evidence in the record. Accordingly, we conclude that the trial court did not abuse its discretion in denying Mother’s motion to set aside its order for voluntary termination of Mother’s parental rights to M.B. and S.B.

Notwithstanding our ultimate conclusion under the particular facts of this case, we nonetheless have serious concerns regarding the actions of the trial court, attorneys, and HCDCS in approving a post-termination visitation plan like the one involved herein. Trial courts are cautioned to refrain from approving post-termination agreements such as these in the future as they are contrary to Indiana law and are likely, under a different set of circumstances, to provide false hope to parents facing termination of their parental rights. Affirmed.

In Lloyd N. Huff, et al. v. Maxine Huff, et al. , a 9-page opinion on rehearing re an estate dispute, Judge Brown writes:

We grant rehearing and revise our original opinion as set forth herein. The result of the appeal is not changed, and we affirm our original opinion in all other respects.

In Best Chairs, Inc. v. Review Board of the Indiana Dept. of Workforce Development, a 9-page opinion, Chief Judge Baker concludes:

Under these circumstances and given this record, we can only conclude that—as in Quillen—the change in the terms of Schilling’s employment was not so unfair or unjust as to compel a reasonably prudent person to quit work under similar circumstances. Thus, we find that Schilling failed to meet her burden of establishing that she voluntarily terminated her employment with good cause and that there is not substantial evidence supporting the result reached by the Board. Consequently, we reverse.

In Rita Beatty v. Timothy LaFountaine, et al , a 13-page opinion, Chief Judge Baker writes:

The Beattys argue that summary judgment was improper because a genuine issue of material fact exists as to whether the defendant truck driver—James Martin—was an independent contractor or LaFountaine’s employee when the accident occurred. The Beattys also contend that LaFountaine is liable because it assumed a nondelegable contractual duty to place Martin under its exclusive control and to ensure that the driver “took all necessary precautions for the safety of all persons affected by the work.” Thus, the Beattys maintain that the trial court erred in denying their motion for summary judgment. Concluding that the trial court properly determined that LaFountaine was an independent contractor and finding no other error, we affirm the grant of summary judgment in LaFountaine’s favor.

In Cory Heinzman v. State of Indiana , a 19-page, 2-1 opinion, Judge May writes:

Cory Heinzman, a Child Protective Services caseworker with the Indiana Family and Social Services Administration (FSSA), was convicted after a jury trial of sixteen counts including official misconduct and various sexual offenses involving minors. He argues on appeal his charges should have been severed for trial, the State did not establish venue with regard to one victim, and there was insufficient evidence of official misconduct. We affirm in part, reverse in part, and remand. * * *

Conclusion. We reverse Heinzman’s convictions of official misconduct involving R.S., and remand with instructions to vacate those convictions, and affirm in all other respects. Affirmed in part, reversed in part, and remanded.
MATHIAS, J., concurring.
VAIDIK, J., dissenting with opinion. [which begins] I respectfully dissent from the majority’s reversal of Heinzman’s convictions for official misconduct relating to his offenses against R.S. Because I believe that the evidence is sufficient to support Heinzman’s convictions, I would affirm.

In Matthew W. Stevens v. State of Indiana , a 5-page opinion, Sr. Judge Hoffman concludes:

Because the trial court has jurisdiction to review DOC’s [educational] credit time determination, we reverse and remand with instructions for the trial court to send this case to the DOC for a review and determination of Stevens’ entitlement to the credit on all three grounds enumerated in I.C. 35-50-6-3.3(a).

In Henry Tillberry v. State of Indiana , a 9-page opinion, Judge May writes:

Henry Tillberry appeals the revocation of his probation. Because he was not afforded due process and because the trial court’s findings are unsupported by evidence, we must reverse. * * *

The informal conversation between the judge and parties at a hearing on the State’s Notice of Probation Violation not only failed to comport with Tillberry’s right to due process at a probation revocation, it also failed to elicit evidence to support by a preponderance of evidence the finding there had been two violations. Therefore, we reverse the revocation of Tillberry’s probation.

In Patrick Bergerson and Patrice Bergerson v. Michael Bergerson , an 18-page opinion, Judge May writes:

Patrick and Patrice Bergerson appeal the denial of their claim for damages arising out of a landlord-tenant relationship with Michael Bergerson. We affirm the judgment, and we deny Michael’s claim for appellate attorney fees. * * *

We have concluded the trial court ruled Patrick and Patrice were in substantial default of the lease, but its order is not a model of clarity, and we cannot say Patrick and Patrice’s interpretation of it was devoid of plausibility. Clarification of the earlier order may have helped the parties frame their arguments for appeal. This appeal is marked with the bitterness typical of family disputes, but we do not believe Michael has made a strong showing that the appeal was frivolous or in bad faith.

NFP civil opinions today (13):

In the Matter of the Adoption of A.L.M. (NFP)

Wendy Lyn Carr v. Jeffrey Scott Reagan (NFP)

In Re J.D. and D.D. (NFP)

Maurice Brown v. JPMorgan Chase Bank (NFP)

In the Matter of: K.M. (NFP)

In the Matter of J.F., S.O., & H.S.; and Melissa O. v. Vigo Co. Div. of Family & Children (NFP)

Joseph Primerano v. Indiana State Police (NFP)

The Invol. Term. of G.Y.; R.Y. (mother) v. Marion Co. Dept. of Child Svcs. (NFP)

John R. Nixon v. Dawn D. Nixon (NFP)

Alicia K. Dotson v. Stephen M. Dotson (NFP)

State of Indiana v. Honey Loehmer (NFP)

In the Matter of C.P. and C.P. (NFP)

A. Wayne Gibson and Don Shearer v. R. Bruce Dye (NFP)

NFP criminal opinions today (13):

Daniel A. Johnson v. State of Indiana (NFP)

Anthony Dix v. State of Indiana (NFP)

Michael Boyd v. State of Indiana (NFP)

Marvin Jackson v. State of Indiana (NFP)

Michael Batts v. State of Indiana (NFP)

Angel Hernandez v. State of Indiana (NFP)

Rocky Critser v. State of Indiana (NFP)

Scotty W. Garland v. State of Indiana (NFP)

Phillip Keyser v. State of Indiana (NFP)

Robert E. Myers v. State of Indiana (NFP)

Andre L. Gorman v. State of Indiana (NFP)

Dean Ross v. State of Indiana (NFP)

Terry Bryant v. State of Indiana (NFP)

Posted by Marcia Oddi on October 31, 2008 11:58 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: "Marion Co. GOP seeks ballot scrutiny"; NAACP foreclosure suit

Updating this ILB entry from yesterday, Jon Murray of the Indianapolis Star reports today in a story that begins:

Marion County election officials said Thursday that a Republican Party lawsuit seeking more scrutiny of absentee ballots was overblown and based on a misunderstanding of early-voting procedures.

Marion Circuit Judge Theodore Sosin will hear both sides today in the dispute, which is based on potential challenges of ballots cast early, either by mail or in person. County GOP Chairman Tom John said the party took action over concerns that improper absentee ballots would be counted as valid by poll workers Tuesday even if they lack the voter's signature or have other defects.

The lawsuit comes in the pressure cooker of an election that has drawn record early voting, a point not lost on Marion County Democrats.

Democratic Party Chairman Ed Treacy said the suit was meant to make way for mass challenges of such ballots on Election Day.

"Ed, you know that's not true," said John, who was standing nearby in Sosin's courtroom Thursday. "All we want to do is have the law followed."

Under Indiana law, a challenge to any voter's residency or eligibility could result in the ballot being set aside as a provisional ballot. Such ballots aren't counted until eligibility is verified after the election.

Kevin O'Neal of the Star reports today under the headline "NAACP suit filed to protect voters" in a story that begins:

A lawsuit filed by the Indianapolis chapter of the NAACP, which aims to protect voters from being turned away at the polls if their homes have been foreclosed, could be settled this morning.

Negotiations were under way Thursday to reach an agreement on a potential court order that would keep anyone from using Marion County foreclosure lists as the sole basis of a voter challenge, according to the county Republican chairman.

"A foreclosure never could have been an adequate basis for a challenge on its own," said Tom John, chairman of the Marion County Republican Central Committee.

A newspaper story that quoted the chairman saying foreclosure challenges were possible was mentioned at the beginning of the National Association for the Advancement of Colored People's court filing. But the lawsuit names only the Marion County Election Board, a bipartisan body, as the defendant. The plaintiffs are an Indianapolis couple who lost their home to foreclosure.

Posted by Marcia Oddi on October 31, 2008 09:47 AM
Posted to Indiana Courts

Ind. Law - No satellite voting in Allen County

Niki Kelly of the Fort Wayne Journal Gazette has a long story today that reports:

INDIANAPOLIS – Voters in Lake, Marion, St. Joseph, Monroe and other Indiana counties have been voting early at convenient satellite locations in recent weeks.

But not voters in Allen County, the largest county geographically in the state.

Allen County voters wanting to cast early ballots have only one location choice – the City-County Building on Main Street.

Members of the Allen County Election Board say adding satellite sites was discussed but the logistics couldn’t be worked out in time.

“We don’t like large mistakes,” Democratic member Andy Downs said. “We wanted to be certain we could do it and do it right.”

In Indiana, eligible voters can cast an early absentee ballot in person with a photo ID without having to give a reason. In addition, traditional mail-in absentee ballots are available for those who are ill, can’t travel or might be out of town.

As of Thursday morning, 409,000 Hoosiers have submitted absentee ballots, which won’t be counted until Election Day. Of that number, about 302,000 are in-person, early absentee votes, the secretary of state’s office confirmed.

“It’s very popular, just exploding,” said Pam Finlayson, director of the Allen County Election Board, who estimated Allen County averages 1,000 early voters a day.

One of the reasons early voting is attractive is that Hoosiers can avoid long lines expected at the polls on Election Day on Tuesday. But those voting early have faced lines of their own.

Some counties, such as Hamilton and Marion in central Indiana, have reported that voters have had to wait several hours to cast ballots.

Finlayson said Allen County is lucky to have the large lobby of the City-County Building to hold the lines of people wanting to vote early and that the lines generally moved quickly.

“But Allen County will have regional absentee sites in the future. There is a need. The volume has outgrown the facility,” she said, noting the election board had originally thought it would try satellite voting in the primary with its new voting machines.

“But then everything became so historic that we decided it was not a good year to launch an entirely new process,” Finlayson said.

All counties can have satellite early-voting sites with unanimous approval of the election board.

Posted by Marcia Oddi on October 31, 2008 09:39 AM
Posted to Indiana Law

Ind. Courts - More on: Court of Appeals hears oral argument in the Lake County early voting case

Updating this ILB entry from yesterday, Patrick Guinane reports today in the NWI Times:

Republicans still are seeking to halt early voting in the three Democratic strongholds. Attorneys for the Democratic-controlled Lake County Board of Elections and Registration contend the Republicans haven’t provided a compelling reason to do so.

"There is no harm in valid voters voting, nor is there any evidence of fraud," said Jonathan Weissglass, an attorney representing labor unions and the NAACP, which have intervened in the dispute.

At issue is whether the East Chicago, Gary and Hammond sites are satellite voting centers, which, under state law, can only be opened by a unanimous vote of the county election board. The board last month voted 3-2 along party lines to open the centers.

Democrats argue state law allows them to open early voting centers at both the elections board office in Crown Point and at the circuit clerk’s offices in East Chicago, Gary and Hammond.

Republicans say the law allows only one early center per county. In 90 counties, they contend, that location is the clerk's office, while in Lake and Tippecanoe counties, where the county elections boards have greater authority, the location is the elections board offices.

In addition to requesting an injunction to shutter the three early voting sites, the Republicans have asked the appeals court to rule on the underlying argument regarding what state law allows. They want a precedent set for future elections.

"This issue will keep coming back," Karl Mulvaney, the GOP's attorney, told the court. "We need to make that decision so it doesn't keep happening."

John Byrne's story in the Gary Post-Tribune reports:

In a key reversal, Republicans in Lake County no longer are asking courts to throw out thousands of votes cast at early voting sites in Gary, Hammond and East Chicago.

Arguing before the state Court of Appeals on Thursday, Republican Party attorney Timothy Sendak said the party no longer will seek to have votes already cast at the three sites invalidated -- a possibility GOP attorneys had raised in earlier hearings.

But after Thursday's hearing, Sendak said individual candidates retain the right to challenge votes and demand recounts after the election.

"We don't anticipate any of that," Sendak said. "That's up to the candidates."

However, the ILB did not see Mr. Sendak arguing before the COA - it was GOP attorney Karl Mulvaney who filled the entire 30 minute segment.

WBEZ 91.5 FM, Chicago Public Radio, reported Wednesday:

Long, long lines at four early voting sites in Lake County have made some voters angry.

Four-hour waits have been reported in the county hub in Crown Point, as well as at satellite offices in Gary, Hammond and East Chicago.

That interest had the county’s election board voting to keep all four sites open through Friday.

Voting will also be allowed at the sites Saturday and Sunday and until noon on Monday. The general election is Tuesday, November 4.

But longer hours aren't welcomed by everyone. Two Republican members of the county election board voted against the extention.

BTW, when I click on this story, I also get an ad for Barnes & Thornburg, which is a supporter of the Chicago public radio site. Unfortunately, the ILB has NOT been as successful in having Indianapolis law firms provide needed support to the widely-read ILB.

Posted by Marcia Oddi on October 31, 2008 09:16 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Brief editorial in Bloomington paper on state judges up for retention

"Lawyers' poll backs state judges" is the heading to a brief editorial ($$) today in the Bloomington Herald-Times:

A reader recently asked the H-T editorial board about the judicial retention questions on the ballot. While they are initially appointed, judges on the Indiana Court of Appeals, Supreme Court and Tax Court are submitted to voters every 10 years for a “yes” or “no” vote on retention.

One measure of a judge’s success is how he or she is viewed by practicing attorneys. In response to the Indiana State Bar Association’s 2008 poll, 83.8 percent of 1,500 lawyers responded that Chief Justice Randall Shepard should be retained on the Supreme Court; 90.3 percent voted “yes” to Justice Theodore Boehm; 88.6 percent voted “yes” to Justice Brent Dickson. Court of Appeals Judge Carr Darden received 87.2 percent “yes” votes; Tax Court Judge Thomas Fisher received 88 percent “yes” votes.

For more information on judicial retention, visit www.in.gov/judiciary/retention.

Posted by Marcia Oddi on October 31, 2008 08:35 AM
Posted to Judicial Retention

Ind. Decisions - More on "Ruling in Plainfield's case considered key for Indiana communities with similar rules"

Updating this ILB entry from September 25th on the Court of Appeals decision in the case of John Doe v. Town of Plainfield, Indiana (check it for a number of useful links), Bruce C. Smith of the Indianapolis Star today reports:

Convicted sex offender John Doe is continuing his long-running legal battle to be allowed in Plainfield's town parks.

Attorneys from the American Civil Liberties Union of Indiana, representing the Marion County man, have asked the Indiana Supreme Court to hear their latest appeal against a Plainfield ordinance banning convicted sex offenders from the town's parks and trail system.

The ACLU is asking the state's high court to consider further review of a September ruling by the Indiana Court of Appeals, which upheld the town's ordinance. * * *

In the newest filing, the ACLU is asking the Supreme Court to look at legal issues in the most recent state Court of Appeals ruling because of the potential for statewide impact.

"The question of whether sex offenders can be banned from public parks merely because of their past convictions is important because other communities have similar ordinances," said Ken Falk, legal director for the ACLU of Indiana.

In a 19-page petition for transfer, he wrote to the Supreme Court that more Hoosier communities undoubtedly would be prompted to enact similar ordinances.

Plainfield's ordinance, passed in 2000, has survived challenges in Hendricks Superior Court and the state appeals court. 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. An ACLU suit is pending on similar issues about a ban enacted in Jeffersonville.

In Indianapolis, courts have struck down a broadly worded ordinance that attempted to ban sex offenders for 1,000 feet around parks, schools and other places. The size of the prohibited area was considered unworkable. * * *

Falk wrote to the Supreme Court that the lawsuit now centers on the potential for a sex offender to commit a crime again.

He warned that appeals court rulings leave open the possibility that Plainfield and other communities could expand "sex offender bans to any places where children or other persons could possibly be present."

Posted by Marcia Oddi on October 31, 2008 08:28 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer denied in John Myers II appeal

Reportedly, transfer has been denied re the May 30th Court of Appeals decision in the case of John R. Myers, II v. State of Indiana (see 5/30/08 ILB summary here). Myers was convicted in 2006 of killing IU student Jill Berman. See a long list of ILB entries on the case here.

From the AP report:

MARTINSVILLE, Ind. (AP) — The Indiana Supreme Court will not hear the appeal of the man convicted in the 2000 slaying of 19-year-old Indiana University student Jill Behrman.

Chief Justice Randall Shepard says the supreme court justices reviewed and discussed the case before rejecting the appeal of John Myers II.

The official Clerk's transfer list, which lists the transfers granted and denied for this week, will not be available until Monday. (Yes, it used to be available on Friday afternoons. I'm told the Court generally conferences on Thursdays.)

Posted by Marcia Oddi on October 31, 2008 08:15 AM
Posted to Indiana Transfer Lists

Thursday, October 30, 2008

Ind. Courts - "Marion Co. GOP seeks ballot scrutiny"

Earlier today the ILB posted "There are rumors of an early voting suit being filed in Marion County this morning ..."

Jon Murray and Brendan O''Shaughnessy have a story up on the Indianapolis Star website - access it here. Some quotes:

The Marion County Republican Party has asked the Circuit Court judge for an order requiring election workers next Tuesday to more closely scrutinize absentee ballots before counting them.

Circuit Court Judge Theodore Sosin this morning delayed a hearing on the issue until 10 a.m. Friday at GOP officials’ request. Marion County Democratic Party Chairman Ed Treacy said the move is an attempt to challenge the record number of early votes cast already in Marion County, a charge GOP Chairman Tom John denied.

Yes, these are the "early votes" that many of us have already cast.

The lawsuit says the Marion County Election Board and County Clerk Beth White, a Democrat, are instructing poll workers to run all absentee ballots into a precinct’s machine on Tuesday. They have received no instructions on what to do with challenged absentee ballots, which the suit says should be treated as provisional ballots and set aside — not counted on Election Day.

John said a key issue is that the Election Board has not examined in-person and mailed-in absentee ballots before the election to throw out those lacking signatures. Those missing a signature — possibly dozens — could become subject to challenge at the polls Tuesday.

Here is the complaint. The Star will have more tomorrow.

Posted by Marcia Oddi on October 30, 2008 03:58 PM
Posted to Indiana Courts

Ind. Courts - Court of Appeals hears oral argument in the Lake County early voting case [Updated]

The argument in John B. Curley, et al vs. Lake County Board of Elections and Registration, et al commenced at 1:30 PM this afternoon. Judge Najam, heading the three-judge panel that includes Judges Robb and May, spoke at the conclusion of the argument to say that the panel had received the case assignment last Friday, Oct. 24th and has been working on it since that time. He said "We are aware of the date of the election and we will be working to issue a written opinion as soon as possible."

If you missed the webcast, it is archived here. If you have had an opportunity to listen to the arguments, you will recognize that it would be much easier for the public to understand the issues in this case if the briefs of the parties had been made available. (I'm still hoping to obtain copies.)

The interpretation of IC 3-11-10-28 ("a voter is entitled to cast an absentee ballot before an absentee voter board") and 28.3 (authorization of satellite offices) was at issue in the arguments. Access the statute here.

[3:33 PM] Here is the first report in, a brief item on the Gary Post-Tribune site:

INDIANAPOLIS -- A panel of three Court of Appeals judges heard arguments Thursday afternoon in the Lake County early voting case, and Judge Edward W. Najam Jr. said they would rule as quickly as possible on whether to allow voting in the three sites to continue.

"We are aware of the date, that the election is approaching," Najam said.

During his argument on behalf of the Lake County Republican Party that the voting sites are illegal, attorney Karl Mulvaney said his clients would not seek to have votes already cast in the three northern cities invalidated, as attorneys for the GOP had previously told other judges they would do.

What the ILB heard on this point was Judge Najam asking Mr. Mulvaney a question, to paraphase the Judge: Going back to the initial pleading in the Judge Hawkins Court: -- unless restrained, voters risk having their votes held for naught and disallowed. We are not hearing this on the merits today but what is the relief sought, to set aside votes of early voters on the merits? Mr. Mulvaney responded: My clients are asking for declaratory judgment. * * * asking that the court issue a stay or an opinion that would be certified immediately back because this will keep coming back, it is not moot.

[3:51] Here is Patrick Guinane's story in the NWI Times:

INDIANAPOLIS | Lake County Republicans are no longer asking the courts to throw out ballots cast at contested early voting sites in East Chicago, Gary and Hammond.

Appearing before the Indiana Court of Appeals on Thursday, a lawyer for Lake County Republican Chairman John Curley said he also has dropped his contention that opening the early voting sites would increase the likelihood of vote fraud.

The Republicans still are seeking to halt early voting in the three Democratic strongholds. Attorneys for the Democratic-controlled Lake County Board of Elections and Registration contend that the Republicans haven’t proven anyone would be harmed if the sites remain open.

At issue is whether the East Chicago, Gary and Hammond sites are satellite voting centers, which, under state law, can only be opened by a unanimous vote of the county election board. The board voted 3-2 along party lines to open the centers.

The Democrats argue that the state law allows them to open early voting centers at both the election board office in Crown Point and at the circuit clerk’s offices in East Chicago, Gary and Hammond.

Republicans say the statute spells out an either or scenario designed to accommodate Lake and Tippecanoe counties, where the election board has more control over the voting process than the clerk. In the 90 other counties, the clerk is in charge.

Early voting began Oct. 6 at the election board office in Crown Point. It started Oct. 14 in East Chicago, Gary and Hammond, after lower-court judges refused the Republicans’ request for an injunction to stop those offices from opening.

Appeals Court Judge Edward Najam, who presided over Thursday’s arguments, said the three-judge panel would do its best to issue a decision as soon as possible. Early voting ends at noon on Monday.

[Updated at 7:40 PM] Mike Smith of the AP reports this evening:

INDIANAPOLIS - An attorney for Lake County's Republican chairman urged the Indiana Court of Appeals to close three early voting centers that they say opened illegally but said they would not seek to have thousands of votes already cast thrown out.

Attorney Karl Mulvaney told the court's three judges today that the sites in Gary, East Chicago and Hammond should not have opened because state law requires a unanimous vote to open satellite voting centers. The Democrat-led Lake County election board voted 3-2 along party lines to open the centers.

Today's hearing was the latest in the nearly monthlong dispute that has taken on racial overtones in the heavily Democratic county, which also is the state's most diverse. * * *

Mulvaney said today that the GOP was no longer challenging the centers over voter fraud concerns but simply wanted the legalities addressed.

A special judge appointed by the Indiana Supreme Court ruled Oct. 22 that closing the voting centers could jeopardize people's fundamental right to vote and violate the federal Voting Rights Act.

Lake County Superior Court Judge Diana Kavadias Schneider acknowledged in that ruling that state law requires a unanimous vote to open satellite voting centers but said the three sites in Gary, East Chicago and Hammond were allowable under interpretation of Indiana law. She noted that Lake County's court system is unique, with clerk's offices in multiple locations.

Mulvaney, however, said the law requiring a unanimous vote was clear and that if people wanted it changed, they should take their case to the General Assembly.

Appeals Court Judge Edward Najam asked both sides what would best serve the public's interest.

Mulvaney said it was in the public's interest that state law be followed.

"Who draws the line in this kind of situation is the General Assembly," he said.

Attorney Jonathan Weissglass countered that the public's interest was in early voting. He said it was a historic election and that long lines at precinct polling places are expected on Election Day. Without early voting, many people won't be able to cast ballots, said Weissglass, representing unions and the Indiana chapter of the NAACP who joined the case on the side of the Lake County election board.

Weissglass said Republicans were trying to shutter the extra voting centers in Lake County for fear that too many people would get to vote.

"What they are trying to do is stop people voting who differ from them," he said.

Indiana has a record 4.5 million voters registered this year, and state election officials have encouraged early voting to ease congestion at the polls on Election Day. As of this morning, nearly 410,000 people had cast early ballots statewide, more than 27,000 of them in Lake County.

Najam said the court would try to rule soon. Early voting ends at noon on Monday.

Posted by Marcia Oddi on October 30, 2008 02:55 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Virgil L. Pride v. Kelvin Christian, et al (NFP) - " Either way, it was Pride that breached the terms of the purchase agreement. Accordingly, the trial court did not err in ruling in favor of the Christians. * * * The trial court did not err in ordering Pride to pay damages to the Christians, including fees and costs. Furthermore, the trial court did not err in ordering Pride to pay broker and attorney fees directly to Hoskins."

Power, Little & Little v. Barbara Adams (NFP) - This is a dispute over attorney's fees owed. "At trial, Adams testified that she was told by a representative of the Firm that the Firm's representation would cost $2500 plus mediation costs. Adams further testified that she had no further conversations with any representative from the Firm regarding attorney's fees. Additionally, the Firm's own representative testified that he had told Adams that the estimated fee for services would be between $2500 and $5000 plus the cost of mediation. Nothing in the record suggests, as the Firm contends, that the parties entered into a contract, agreeing that Adams would pay the Firm on an hourly basis. Here, in light of the evidence presented at trial and the long-standing proposition in Indiana law that the plaintiff, not the defendant, bears the burden of proving the existence and nature of a contract, we are unconvinced that the trial court erred in finding that the Firm failed to meet its burden of proof. See Ochoa v. Ford, 641 N.E.2d 1042, 1044 (Ind. Ct. App. 1994). Therefore, we reject the Firm's claim that the small claims court's statement regarding the burden of proof was contrary to law. * * *

"Having concluded that the small claims court?s statement that the Firm, which bore the burden of proof, failed to carry such burden was not contrary to law and that the Firm is not entitled to recover under the equitable doctrine of quantum meruit, we affirm the judgment of the small claims court.

"The judgment of the small claims court is affirmed. "

In the Matter of the Support of T.M., by next friend Shana Daniel v. Nathan McAlister (NFP) - "In sum, having concluded that the evidence to support the trial court’s determination that the substantial change in the circumstances warranted modification of the prior custody arrangement, and that the custody modification was in T.M.’s best interests, we affirm the judgment of the trial court. "

NFP criminal opinions today (3):

Jerry Pettigrew v. State of Indiana (NFP)

Courtney Simpson v. State of Indiana (NFP)

Timothy Cunningham v. State of Indiana (NFP)

Posted by Marcia Oddi on October 30, 2008 11:48 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - More about today's Lake County early voting oral arguments

Names of the three Court of Appeals judges who will be on today's panel have been released by Chief Judge Baker. They are: Judges Najam, May, and Robb.

There are rumors of an early voting suit being filed in Marion County this morning - I'd appreciate hearing from anyone with information or, more importantly, papers to post.

Posted by Marcia Oddi on October 30, 2008 10:58 AM
Posted to Indiana Courts

Courts - "Election Law Litigation — Everyone’s Doing It"

The WSJ Law Blog has a new entry today on current election law litigation. The blog references a number of stories today in the WSJ itsself, including this one headed "Rising Tide of Suits Filed in Search of Political Edge." Their section on early voting in Lake County says "The case is headed to the state Supreme Court.." Well, it has been there, momentarily, and now it is heading to oral argument before the Court of Appeals this afternoon. After that decision, the dispute may be heading to the Supreme Court again, albeit it may be moot, as it will no longer be "early."

Posted by Marcia Oddi on October 30, 2008 09:47 AM
Posted to Courts in general

Ind. Law - "Lake County officials to decide long lines issue during election meeting Saturday"

Bill Dolan reports today in the NWI Times:

CROWN POINT | Lake County elections officials are debating whether long lines anticipated at polling places on Election Day should be deemed a voting emergency.

Democratic members of the county elections board want poll workers to be able to pass out emergency paper ballots if voters threaten to leave because of long waits.

Republican board members question whether the law permits emergency ballots to be used for any reason other than failure of electronic machines at polling places.

It is another facet of the monthlong dispute that has divided the Lake County elections board between Republicans protesting efforts to expand voting accessibility out of fears of vote fraud and Democrats claiming Republicans are trying to suppress the Democratic voter turnout.

The board put off the question of approving emergency ballots until its final election meeting Saturday to give lawyers for both parties time to research the law.

Michelle Fajman, county elections supervisor, said, "There is no doubt in my mind you will have long lines Tuesday wherever you go."

Thus far, waits at early voting locations have ranged from one hour in Crown Point to more than three hours in Gary. * * *

Jim Brown, a Republican elections board member, said, "The polls are open 12 hours. If the law says emergency ballots should only be for machine failure, then I don't know how this board can go beyond the power of what the statute authorizes."

Posted by Marcia Oddi on October 30, 2008 08:15 AM
Posted to Indiana Law

Law - Fort Wayne paper's editorial on "The right to vote"

Well worth reading, access it here.

Posted by Marcia Oddi on October 30, 2008 07:52 AM
Posted to General Law Related

Courts - "DOJ Study: Plaintiffs Win More Than Half of State Court Civil Trials"

Vesna Jaksic of The National Law Journal reports today:

Plaintiffs won in more than half of state court civil trials in 2005 and were more likely to get a favorable verdict in bench than jury trials, according to a new U.S. Department of Justice report.

Plaintiffs won in 56 percent of all general civil trial cases. Judges ruled in their favor in 68 percent of the cases, while juries favored the plaintiffs 54 percent of the time.

The report was released Tuesday by the Bureau of Justice Statistics at the U.S. Department of Justice. The study is the first nationally representative measure of general civil bench and jury trials in state courts.

The report found that plaintiffs were awarded an estimated $6 billion in compensatory and punitive damages, with the final median damage award of $28,000. More than 14 percent of plaintiff winners were awarded damages of more than $250,000, while about 4 percent got more than $1 million.

State courts handled nearly 27,000 civil cases through bench or jury trials. Sixty-one percent of them involved a tort claim, and the most common tort claim involved motor vehicle accidents.

Out of the 14,000 civil trials that went in the plaintiffs' favor, punitive damages were awarded in about 5 percent of the cases, with $64,000 as the median punitive damages award.

The report also pointed to a major drop in the number of civil trials, with numbers decreasing by 52 percent from 1992 to 2005 in the nation's 75 most populous counties. In these counties, the median final award also decreased, from $72,000 in 1992, to $43,000 in 2005.

But some tort cases did see higher awards. In products liability trials, median awards were five times higher in 2005 and median medical malpractice awards more than doubled, from $280,000 in 1992 to $682,000 in 2005.

Access the DOJ site here; where you will find this link to the 20-page report.

Posted by Marcia Oddi on October 30, 2008 06:40 AM
Posted to Courts in general

Wednesday, October 29, 2008

Ind. Courts - Charges filed against Senior Judge Walter P. Chapala

From a just-issued release:

The Indiana Commission on Judicial Qualifications filed formal charges of judicial misconduct against the Honorable Walter P. Chapala, a Senior Judge and former Judge of the LaPorte Superior Court #1, the Commission announced today.

The Commission filed a “Notice of the Institution of Formal Proceedings and Statement of Charges” with the Clerk of the Indiana Supreme Court accusing Senior Judge Chapala of violating ethical rules for judges. The charges stem from the judge’s conduct in two separate cases. In the first allegation, the Commission charges that Senior Judge Chapala, when he was the elected judge, suspended a significant portion of a man’s prison term in the Department of Corrections in exchange for the man’s father’s $100,000.00 contribution to two court programs. In the second allegation, the Commission charges that Senior Judge Chapala, also while an elected judge, instituted contempt proceedings against the Sheriff of LaPorte County for having lawfully returned Chapala’s daughter-in-law’s nephew over to Michigan authorities, then continued to preside over the nephew’s Indiana case. * * *

Senior Judge Chapala is entitled to file an answer to the charges within 20 days, after which the Supreme Court will appoint a panel of three judges to preside over an evidentiary hearing and report its findings to the Indiana Supreme Court. If the Court finds the Commission proved its charges, it will determine the appropriate sanction, which could involve discipline against Senior Judge Chapala both as a senior judge and as an attorney.

The ILB has posted the 6-page charging document here. [Note: It is a large, scanned file and thus may load slowly.]

Posted by Marcia Oddi on October 29, 2008 02:11 PM
Posted to Indiana Courts

Ind. Decisions - "Court upholds conviction in quadruple killing"

The Supreme Court's decision yesterday in the case of Bassett v. State (see ILB summary here) is the subject of an AP story today that begins:

COLUMBUS, Ind. - The Indiana Supreme Court has upheld the convictions and life sentence for a man convicted of killing a woman and three children while they were on a camping trip in Bartholomew County.

Robert Bassett Jr. had claimed in his appeal of his four murder convictions that Bartholomew County Prosecutor Bill Nash's review of the phone calls between he and his attorney was unethical and affected the outcome of the trial.

Nash had listened to the phone calls recorded while Bassett was in the Bartholomew County Jail. The jail's automated system warned callers that the conversations were being recorded.

The Supreme Court's ruling issued Tuesday said that the phone calls were not confidential or privileged.

"Bassett's decision to proceed with calls to his attorney after receiving the automated warnings and understanding their implications constituted a knowing waiver of the attorney-client privilege," Justice Frank Sullivan Jr. wrote.

Posted by Marcia Oddi on October 29, 2008 02:07 PM
Posted to Ind. Sup.Ct. Decisions

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

In Jack Bell v. DaimlerChrysler Corp. (SD Ind., Judge Tinder), a 26-page opinion, Judge Rovner writes:

Pursuant to section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a), the plaintiffs-appellants brought suit in the district court al- leging that defendant-appellee DaimlerChrysler Corpora- tion (“Chrysler”) breached its contractual obligations to certain workers laid off in the late 1970s and early 1980s by failing to recall these workers for job openings at Chrysler’s plants in Kokomo, Indiana. The district court granted summary judgment in favor of Chrysler, reasoning in part that the plaintiffs had failed to exhaust their intra-union remedies prior to bringing suit. Bell v. Daimler Chrysler Corp., 2007 WL 1266773 (N.D. Ill. May 1, 2007). We agree and affirm.

Posted by Marcia Oddi on October 29, 2008 12:57 PM
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In The Marriage of: Suzanne Hebert Hamilton v. Richard Wayne Hamilton , a 15-page opinion, Judge Vaidik writes:

Suzanne Hamilton appeals the trial court’s order finding that her former husband, Richard Hamilton, was not in contempt of court for failing to pay child support as ordered by a Florida trial court. We hold that the trial court’s decision to enforce the Florida child support obligation for less than the amount ordered by the Florida court was not an impermissible modification under the Uniform Interstate Family Support Act (“UIFSA”). We also find that the trial court did not abuse its discretion because the evidence clearly shows that Richard complied with the Indiana trial court’s order. We affirm.

NFP civil opinions today (2):

Ronald R. Mote and Carrie J. Mote v. Jess A Wilkinson and Tracy E. Wilkinson (NFP) - "The Motes raise several issues, of which we find the following restated issue dispositive: whether the trial court erred when it found that the Motes committed fraud by making a material misrepresentation as to the condition of the septic system, which was made with knowledge or reckless ignorance of its falsity. We affirm. "

T.N. v. B.D. (NFP) - "Tracie M. Nelson (Mother) appeals the trial court’s modification of custody order, which granted Billy Dupree (Father) legal and physical custody of the parties’ daughter, K.D. She presents the following restated issue for review: Did the trial court abuse its discretion by modifying custody? We affirm. "

NFP criminal opinions today (3):

Santos R.C. v. State of Indiana (NFP)

George W. Hill, Jr. v. State of Indiana (NFP)

Joshua J. Smedley v. State of Indiana (NFP)

Posted by Marcia Oddi on October 29, 2008 11:59 AM
Posted to Ind. App.Ct. Decisions

Law - "Get Ready to Relearn the ADA"

An important heads-up article today in Legal Times, reported by Lawrence Lorber, Fredric C. Leffler and Samantha Morris. It begins:

Get ready to relearn the Americans with Disabilities Act -- by Jan. 1, 2009. New legislation signed last month has defanged a common employer defense, and the changes are going to have real repercussions in the workplace.

On Sept. 25, 2008, with his father looking on, President George W. Bush quietly signed legislation that significantly broadened the scope of protection available under the ADA. The legislation, known as the ADA Amendments Act of 2008 (ADAAA), "carries out the ADA's objectives" to expand coverage by, among other things, expressly rejecting Supreme Court cases that narrowly construed the definition of "disability" under the ADA.

The critical inquiry under the amended law is no longer on whether the individual has a disability, which has been a primary battleground of past court decisions. Rather, as of Jan. 1, 2009, the focus is directed to whether covered entities have complied with their obligations to reasonably accommodate disabled applicants and employees.

For background, see this ILB entry from Sept. 12 and this one from June 5th.

Posted by Marcia Oddi on October 29, 2008 11:50 AM
Posted to General Law Related

Ind. Decisions - Supreme Court decides one today

In Stephanie Bailey v. Lewis Mann, a 4-page, 5-0 opinion, Justice Boehm writes:

The parties entered into a property settlement agreement awarding a jointly leased automobile to the wife. There was no express requirement in the agreement that the wife remove the husband’s name from the lease. We hold that the law does not imply such a requirement in the absence of an express provision addressing it. * * *

The trial court stayed its order requiring the wife to remove the husband’s name from the lease pending her appeal.

The Court of Appeals affirmed the trial court in an unpublished memorandum decision. Bailey v. Mann, No. 34A04-0709-CV-506, slip op. at 2 (Ind. Ct. App. Feb. 20, 2008). The Court of Appeals agreed with the trial court’s conclusion that the Property Settlement Agreement was ambiguous, and held that the trial court correctly ordered the wife to remove the husband’s name from the lease to effectuate the “spirit” of the Property Settlement Agreement. Judge Kirsch dissented, observing the difficulty and expense of removing a party from a joint debt. * * *

We agree with the wife and Judge Kirsch. The Property Settlement Agreement requires the wife to make payments on the lease, but does not require her to refinance or remove the husband’s name from the lease. The husband is correct that the agreement provides the wife with “separate” assets. However, the term “separate” is used generally to describe all assets, and the phrases “subject to the lease thereon” and “joint debt” specifically modify the Pontiac G-6. As Judge Kirsch pointed out, the husband was free to negotiate a provision explicitly requiring the wife to remove his name from the lease. In fact, property settlement agreements frequently cover refinancing and removal of one party’s name from a joint debt. * * *

For several reasons, notably the desire to avoid refinancing costs, one or both of the parties may have agreed to leave both names on the lease or omitted to address the issue. We therefore do not find a requirement to remove the husband’s name to be an inevitable inference from an award of the vehicle to the wife. * * *

We reverse the part of the trial court’s order requiring the wife to remove the husband’s name from the Pontiac G-6 lease and affirm the part denying the wife’s motion for attorney fees.

Posted by Marcia Oddi on October 29, 2008 10:55 AM
Posted to Ind. Sup.Ct. Decisions

Law - "A Myth of Voter Fraud"

The Washington Independent (which "belongs to a network of state-based online news sites founded by the Center for Independent Media") had an article earlier this week by Daphne Eviatar headed "A Myth of Voter Fraud: In Pursuit of an Unlikely Crime." Some quotes:

For months now, Republicans have been claiming that voter fraud is rampant and that government officials aren’t sufficiently cracking down. Democrats insist that voter fraud is practically nonexistent –- the real problem is intimidation and harassment of voters at the polls, they say.

The story includes some discussion of the ACORN controversy.

Posted by Marcia Oddi on October 29, 2008 10:43 AM
Posted to

Ind. Courts - "Appeals court visits Ball State"

Sean Armie reports in the Ball State Daily News:

The Indiana Court of Appeals offered students a glimpse at the judicial process in Pruis Hall on Tuesday.

More than 200 Ball State University students and faculty gathered to watch a panel of three judges listen to oral arguments for the case of Melissa Christian v. The State of Indiana. * * *

[Christian was found intoxicated in a parking area adjacent to a private residence. Christian argues that the evidence is insufficient to support her conviction because the State failed to prove that she was in a "public place."]

Attorney Joe Thoms, speaking on behalf of Christian in Pruis Hall on Tuesday, said Christian was not on public property because the parking area she was arrested in was private and was next to a private residence.

Attorney Arturo Rodriguez, representing the state of Indiana, argued that Christian was on public property at the time of the arrest because the parking lot didn't belong to any particular person and was used by many people wishing to park their vehicles.

The two attorneys delivered their arguments to the panel of three judges: Chief Judge John G. Baker, Judge Paul D. Mathias and Judge Elaine B. Brown.

Posted by Marcia Oddi on October 29, 2008 10:34 AM
Posted to Indiana Courts

Ind. Courts - "Supreme Court won’t halt molest trial"

Shawn McGrath of the Anderson Herald Bulletin reports:

The Indiana Supreme Court denied Tuesday a defense attorney’s emergency request to stop a Tipton man’s trial on child molestation charges and ordered it to proceed.

Defense attorney Zaki Ali filed the motion Tuesday on behalf of Steven W. Everling, shortly after Everling’s trial began with jury selection in Madison Circuit Court. Ali sought the postponement after Judge Fredrick Spencer refused Ali’s request for a new judge.

Ali had asked for a new judge in five criminal cases in September after Spencer purportedly used an expletive to describe another of Ali’s clients, Christopher J. Mier, during Mier’s initial court hearing in July. * * *

While the Supreme Court justices refused to halt Everling’s trial, they did ask for Spencer to write a brief responding to Ali’s claim that Spencer should have recused himself from the five cases. The Supreme Court also gave the Madison County Prosecutor’s Office and Indiana Attorney General’s Office the opportunity to file briefs. The deadline is Nov. 10 to file the briefs, and then the Supreme Court will take the issue into consideration.

Posted by Marcia Oddi on October 29, 2008 10:28 AM
Posted to Indiana Courts

Ind. Decisions - Curley early voting oral argument tomorrow [Updated twice]

Note: This entry has been UPDATED and moved to the top of the list.

The oral argument in the case of John B. Curley, et al vs. Lake County Board of Elections and Registration, et al will be tomorrow, Thursday, Oct. 30th, before a Court of Appeals panel. (Oddly, the names of the panel members are not yet available - generally they are listed on the COA oral arguments calendar.)

The argument will be webcast and you may view it live at 1:30 PM EDT, or later, via this link.

The ILB so far has received a copy of only one brief - the "Motion of the State of Indiana to intervene for purposes of defending the validity of state statutes or, in the alternative, for leave to file a brief as amicus curiae in support of appellants." of the Attorney General, accompanied by the 27-page "Brief of the State of Indiana as interneor or amicus curiae."

Hopefully, someone out there can send the ILB copies to post of one or the other (or both) of the party's briefs, to add to this list of available documents:

10/23/08 Curley motion to Supreme Court, along with background documents
10/24/08 Order of the COA - sets expedited briefing schedule and Oral Argment for Thursday, Oct. 30th at 1:30 PM in the Supreme Court Courtroom
Attorney General's motion to intervene and amicus brief to COA, filed 10/27/08 [Note: Motion to intervene denied 10/28/08 -see below]
Plaintiff-Appellant John F. Curley brief to COA - filed 10/27/08
Defendant-Appelle Lake County Board of elections brief to COA - filed10/29/08
Others

Here is a current list of all the ILB entries on the Lake County early voting dispute.

[Updated at 9:50 AM]

Order issued by the COA on 10/28/08:

HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS FOLLOWS:

APPELLANTS' REQUEST FOR "AN IMMEDIATE STAY OF ALL EARLY IN-PERSON VOTING IN THE HAMMOND, GARY AND EAST CHICAGO SATELLITE CENTERS," REQUESTED WITHIN THE BRIEF OF APPELLANTS, IS DENIED.

FOR THE COURT, JOHN G. BAKER, CHIEF JUDGE MS

Order issued by the COA on 10/28/08:

HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS FOLLOWS:

1. THE STATE OF INDIANA FILED ITS MOTION OF THE STATE OF INDIANA TO INTERVENE FOR PURPOSES OF DEFENDING THE VALIDITY OF STATE STATUES OR, IN THE ALTERNATIVE, FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE IN SUPPORT OF APPELLANTS.

2. THE STATE OF INDIANA'S MOTION TO INTERVENE IS DENIED.

3. THE STATE OF INDIANA'S MOTION FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE IN SUPPORT OF APPELLANTS IS GRANTED.

4. THE CLERK OF THIS COURT IS DIRECTED TO FILE THE STATE'S BRIEF OF AMICUS CURIAE AS OF THE DATE OF THIS ORDER.

FOR THE COURT, JOHN G. BAKER, CHIEF JUDGE MS

[Updated at 2:53 PM] I've just received a document containing the two above orders, an order re webcasting, plus copies of orders granting temporary admission.

Posted by Marcia Oddi on October 29, 2008 09:57 AM
Posted to Ind. App.Ct. Decisions

Environment - "Coal plant foes seek Daniels' e-mails" [Updated]

A number of Indiana papers today are carrying this AP story by Rick Callahan. Some quotes:

Opponents of Duke Energy Corp.’s $2.35 billion coal gasification plant want Gov. Mitch Daniels to turn over e-mails, letters and other communications from his office to state regulators and Duke Energy related to the project.

Three citizens and environmental groups filed a public disclosure request with Daniels’ office Tuesday, two weeks after suffering a court setback in their bid to halt the plant.

The groups’ filing includes a request for e-mails, letters, faxes and any other “actions, public or nonpublic” that the governor or his administration may have taken to promote the 630-megawatt plant being built near Edwardsport about 90 miles southwest of Indianapolis.

Grant Smith, executive director of the Citizens Action Coalition of Indiana, said his group, the Sierra Club and Valley Watch believe the Daniels administration had been “too cozy” with the coal and utility industries before and after the plant was approved in November 2007.

This effort is reminiscent of successful efforts by the Gary Post-Tribune (see story's second paragraph) to obtain IDEM e-mails re certain communications with BP.

[More] Here is a press release issued by the groups filing the email disclosure request: Hoosier Chapter Sierra Club; Valley Watch; Indiana Citizens Action.

[Updated 11//2/08] "Daniels Administration Too Cozy With Coal Industry? Three Groups File Public Records Demand to Expose Ties Between Governor, Duke Energy" is the headline to this MarketWatch release dated Oct. 29.

Posted by Marcia Oddi on October 29, 2008 09:31 AM
Posted to Environment

Ind. Gov't. - More on "Marion County Sheriff has spent $3M on law firm"

Updating this entry from Oct. 27th, the Indianapolis Star has an editorial today headed "Time to bail out of sweetheart legal deal." It begins:

As Star reporter Brendan O'Shaughnessy revealed this week, Marion County Sheriff Frank Anderson has shelled out $3.1 million in public money to the Locke Reynolds law firm since he took office in 2003. Last year, he signed five contracts with Locke Reynolds that could cost the public another $1.5 million.

Who's the attorney handling most of this work for the sheriff? It just happens to be Kevin Murray, who just happened to run Anderson's election campaigns in 2002 and 2006.

Anderson argues that he needs all of this extra legal assistance, despite the 27 public lawyers already employed to represent city and county agencies, because his department is so large and complex.

Posted by Marcia Oddi on October 29, 2008 09:25 AM
Posted to Indiana Government

Courts - Interesting items from 7th Circuit yesterday

Howard Bashman of How Appealing has an entry on two non -Indiana items yesterday that may be of interest, one re a discussion of the pros and cons of class actions, the other where "Judge Posner rejects plaintiffs' motion to strike the entire fact section from the defendants' appellate brief."

Posted by Marcia Oddi on October 29, 2008 09:04 AM
Posted to Ind. (7th Cir.) Decisions

Courts - "Appeals Courts Pushed to Right by Bush Choices"

Charlie Savage of the NY Times has a lengthy article today on the reshaping of the federal courts. Some quotes:

On Oct. 6, Mr. Bush pointed with pride to his record at a conference sponsored by the Cincinnati chapter of the Federalist Society, the elite network for the conservative legal movement. He noted that he had appointed more than a third of the federal judiciary expected to be serving when he leaves office, a lifetime-tenured force that will influence society for decades and that represents one of his most enduring accomplishments. While a two-term president typically leaves his stamp on the appeals courts — Bill Clinton appointed 65 judges, Mr. Bush 61 — Mr. Bush’s judges were among the youngest ever nominated and are poised to have an unusually strong impact.

They have arrived at a time when the appeals courts, which decide tens of thousands of cases a year, are increasingly getting the last word. While the Supreme Court gets far more attention, in recent terms it has reviewed only about 75 cases a year — half what it considered a generation ago. And Mr. Bush’s appointees have found allies in like-minded judges named by Mr. Bush’s father and Reagan.

Republican-appointed judges, most of them conservatives, are projected to make up about 62 percent of the bench next Inauguration Day, up from 50 percent when Mr. Bush took office. They control 10 of the 13 circuits, while judges appointed by Democrats have a dwindling majority on just one circuit. * * *

Appeals courts tend to change the law incrementally rather than in rapid shifts. They are constrained to follow Supreme Court precedent, and most of their work consists of unanimously disposing of routine cases.

Still, every year courts encounter some controversial cases in which they have greater discretion. In such circumstances, several studies have shown that judges appointed by Republican presidents since Reagan have ruled for conservative outcomes more often than have their peers.

They have been more likely than their colleagues to favor corporations over regulators and people alleging discrimination, and to favor government over people who claim rights violations. They have also been more likely to throw out cases on technical grounds, like rejecting plaintiffs’ standing to sue.

Posted by Marcia Oddi on October 29, 2008 08:58 AM
Posted to Courts in general

Tuesday, October 28, 2008

Ind. Courts - La Porte Superior Court 2 judge contest

Dave Hawk reports in the Michigan City News-Dispatch, in a story that begins:

The Republican running for La Porte Superior Court 2 judge, Thomas Rutkowski, grew up in Wisconsin, but has been in Michigan City for 35 years.

Rutkowski brings something of an outsider's perspective, but it's because he spent 20 years as an executive in a major steel corporation, while his Democratic opponent, Richard Stalbrink, who was born in the southern La Porte County town of La Crosse, clerked for two local judges, worked as a deputy prosecutor in the county and has been a magistrate in Circuit Court for a year.

Rutkowski and Stalbrink vie in the election next Tuesday to replace retiring Judge Steven King.

Posted by Marcia Oddi on October 28, 2008 07:29 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

In Adam Drake v. State of Indiana , a 16-page opinion, Chief Judge Baker writes:

Appellant-defendant Adam Drake appeals his conviction and sentence for Battery, a class D felony. Specifically, Drake argues that his Sixth Amendment right to counsel was violated because he did not knowingly and intelligently waive that right when the trial court granted his request to proceed pro se. Concluding that Drake did not make a knowing and intelligent waiver of his right to counsel, we reverse and remand for new trial. * * *

Again, we stress that whether or not a defendant made a knowing and intelligent waiver of the right to counsel depends upon the totality of the circumstances in each individual case, and there are no specific guidelines or “talking points” that a trial court must follow. Poynter, 749 N.E.2d at 1126. Rather, the trial court must determine whether a voluntary, knowing, and intelligent waiver exists by making certain that the defendant is aware of the dangers and disadvantages of proceeding without counsel and ensuring that the record reflects that the defendant made the decision with his or her “eyes open.” Osborne, 754 N.E.2d at 920-21. The guidelines discussed above are only meant to be a resource to trial courts in making this sometimes difficult determination.

In Johanna P. Williams v. State of Indiana , a 20-page opinion, Judge Riley concludes:

Based on the foregoing, we conclude that Williams was sentenced in violation of Blakely, so we remand this cause to the trial court to allow the State the opportunity to properly establish the position of trust aggravator. However, we also conclude that the evidence was sufficient to support the trial court’s determination that Williams is a sexually violent predator and that the lifetime registration requirement, as applied to Williams, does not violate constitutional prohibitions on ex post facto laws. Affirmed in part, reversed in part, and remanded with instructions.

In Ronald Lynn Scott, Jr. v. State of Indiana , a 14-page opinion, Judge Rley concludes:

Based on the foregoing, we conclude that (1) the trial court did not err in failing to hold a hearing requiring the doctors to explain their conclusions regarding Scott’s alleged status as a sexually violent predator and (2) the evidence is sufficient to support the trial court’s finding that Scott is a sexually violent predator. Affirmed.

NFP civil opinions today (1):

Lafayette Accounts Svc., Inc. v. Larry Richard Bartley (NFP) - "Lafayette argues that inasmuch as there are no issues of material fact and it is entitled to judgment as a matter of law, the trial court should have granted summary judgment in its favor on its complaint against Bartley for an account stated based on medical bills that Bartley has allegedly failed to pay. Finding that Lafayette is entitled to judgment as a matter of law, we reverse and remand with instructions. "

NFP criminal opinions today (9):

S.M.J. v. State of Indiana (NFP)

Jarmarcus T. Lasley v. State of Indiana (NFP)

Scott Morris II v. State of Indiana (NFP)

Michael Johnson v. State of Indiana (NFP)

Heartfield Steele v. State of Indiana (NFP)

Gregory Scott Michael v. State of Indiana (NFP)

Ronald Lynn Scott, Jr. v. State of Indiana

Brian Wagner v. State of Indiana (NFP)

Shaun A. Miles v. State of Indiana (NFP)

Posted by Marcia Oddi on October 28, 2008 07:06 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Bassett v. State, an 18-page, 5-0 opinion, Justice Sullivan writes:

Robert Bassett, Jr., appeals his four convictions for murder and sentences of life imprisonment without the possibility of parole primarily on grounds that the prosecuting attorney in this case listened to a number of non-confidential telephone conversations that Bassett had with his lawyer. This conduct did not violate Bassett’s legal rights or prejudice him at trial. We affirm the convictions and sentences.

Posted by Marcia Oddi on October 28, 2008 06:54 PM
Posted to Ind. Sup.Ct. Decisions

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Legal Blawgs Web Archive Collection

Legal Blawgs Web Archive Collection

The Indiana Law Blog

Focus is on Indiana law, and on interesting developments in law, government, and more (not just in Indiana).

Thursday, November 06, 2008

Ind. Courts - Making sense of court fees

Ind. Courts - Supreme Court receives international award for information systems

Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)

Law - "An Early Line on Legal Slots in Obama Administration "

Ind. Courts - Frustration with the Appellate Clerk's Office Operations

Environment - Pollution Dilution; New EPA CAFO Rules; Other EPA Action

Wednesday, November 05, 2008

Law - SEC's Division of Enforcement issues a 122-page Enforcement Manual

Ind. Gov't. - AG issues official opinion on public bidding of school roof repair work

Courts - "Miss. Voters Unseat Three High Court Justices"; Alabama race

Courts - More on: "An 'Orgy of Negativity' in Michigan Judicial Race"

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

Ind. Courts - Voters Retain All Indiana Supreme Court, Court of Appeals, and Tax Court Judges on the November Ballot

Ind. Law - "Lake County sees climb in provisional ballots Tuesday" [Updated]

Law - Social issues on the ballot

Ind. Courts - Reports on some local court races

Ind. Gov't. - "Zoeller wins state's attorney general post"

Ind. Courts - "Indiana high court retained by voters"

Tuesday, November 04, 2008

Courts - "An 'Orgy of Negativity' in Michigan Judicial Race"

About this Blog - Notable items concerning the ILB

Ind. Gov't. - 5-year Mitchell City Council member may never have lived in the city

Ind. Law - "Impact of Photo Identification at the Polls Through an Examination of Provisional Ballots"

Law - "As Building Projects Collapse, Suits Pile Up"

Law - "Online Law Grads: Older, No Slackers"

Courts - "Justices Agree to Consider DNA Case"

Ind.Courts - "Challenged absentee ballots should be set aside for later review, high court finds"

Monday, November 03, 2008

Ind. Courts - No last word yet in Marion County early voting case?

Ind. Courts - Yet more on Marion County early voting case

Courts - "Juror in Stevens Case: My Father is not Dead"

Ind. Courts - Still more on Marion County early voting case

Courts - "Supreme Court Hears Case Involving Drug Labels" [Updated]

Ind. Courts - More on Marion County early voting case [Updated]

Ind. Law - "It's the law" today examines election laws

Ind. Decisions - Transfer list for week ending Oct. 31, 2008

Ind. Decisions - Upcoming oral arguments this week

Sunday, November 02, 2008

Law - "Was There a Loan It Didn’t Like?"

Ind. Courts - "LaGrange farm sued over heifers: Manager says Ohio company knew cows it bought were sterile"

Ind. Courts - "Judgment call: 3 justices are on the ballot"

Not law but - "JG editorial staff ‘best in show'"

Saturday, November 01, 2008

Ind. Courts - Documents in: "Marion Co. GOP seeks ballot scrutiny" [Corrected]

Ind. Courts - Answers to questions on the JTAC case management system

Law - More on: Judge orders Michigan to Allow Wine Shipping by Out-of-State Retailers

Ind. Courts - Still more on: "Marion Co. GOP seeks ballot scrutiny"

Friday, October 31, 2008

Ind. Courts - Still more on: Court of Appeals hears oral argument in the Lake County early voting case [Updated]

Ind. Decisions - Court of Appeals issues 8 today (and 26 NFP)

Ind. Courts - More on: "Marion Co. GOP seeks ballot scrutiny"; NAACP foreclosure suit

Ind. Law - No satellite voting in Allen County

Ind. Courts - More on: Court of Appeals hears oral argument in the Lake County early voting case

Ind. Courts - Brief editorial in Bloomington paper on state judges up for retention

Ind. Decisions - More on "Ruling in Plainfield's case considered key for Indiana communities with similar rules"

Ind. Decisions - Transfer denied in John Myers II appeal

Thursday, October 30, 2008

Ind. Courts - "Marion Co. GOP seeks ballot scrutiny"

Ind. Courts - Court of Appeals hears oral argument in the Lake County early voting case [Updated]

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

Ind. Courts - More about today's Lake County early voting oral arguments

Courts - "Election Law Litigation — Everyone’s Doing It"

Ind. Law - "Lake County officials to decide long lines issue during election meeting Saturday"

Law - Fort Wayne paper's editorial on "The right to vote"

Courts - "DOJ Study: Plaintiffs Win More Than Half of State Court Civil Trials"

Wednesday, October 29, 2008

Ind. Courts - Charges filed against Senior Judge Walter P. Chapala

Ind. Decisions - "Court upholds conviction in quadruple killing"

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

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

Law - "Get Ready to Relearn the ADA"

Ind. Decisions - Supreme Court decides one today

Law - "A Myth of Voter Fraud"

Ind. Courts - "Appeals court visits Ball State"

Ind. Courts - "Supreme Court won’t halt molest trial"

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