The Indiana Law Blog

Thursday, February 05, 2009

Ind. Courts - "Logansport indecent exposure case dismissed again"

Kevin Lilly's report in the Pharos-Tribune begins:

For a second time, the Cass County prosecutor’s office had to dismiss a case against a Logansport man who allegedly “mooned” two children.

Deputy prosecutor Jim Chovanec handled the case against 43-year-old William Elpers, who was charged with class C misdemeanor indecent exposure for allegedly showing his buttocks to two children last year. In a statement given Tuesday, Chovanec said the decision to drop the charge resulted from respecting the wishes of the children’s parents.

“The investigator talked to the children, who were scheduled to give a deposition before trial, and the father indicated that the parents did not want to put the children through any rigors of a trial,” Chovanec said.

Elpers was arrested on April 5 and initially set for a bench trial in September. The prosecution dropped the charge the first time on the day before trial because the children, the only witnesses, could not be found to testify.

Posted by Marcia Oddi on February 5, 2009 01:55 PM
Posted to Indiana Courts

Environment - "Techniques that have dramatically reduced contamination at beaches in Racine, Wis."

Laurie Wink has an interesting article today in the Michigan City News-Dispatch:

Beach advisories and closings at Racine's North Beach went from 62 in 2000 to only one last year, said Julie Kinzelman, with the Racine Health Department. She shared successful beach management strategies at a public meetings in the city council chambers Wednesday night. Mayor Chuck Oberlie, chair of the environmental management policy committee of the Northern Indiana Regional Planning Commission, invited Kinzelman to address the NIRPC committee today.

Indiana has cause for concern about beach water quality, with the state ranked second in the number of beaches exceeding national standards in a 2006 study. In the study, Washington Park beaches were the third highest among all Indiana beaches.

Michigan City could take a financial hit if public beaches are seen as too risky to visit, Kinzelman said. And water quality monitoring is critical to public health as more people use the Great Lakes beaches.

Monitoring involves measuring E. coli levels as indicators of contamination. Besides human and animal waste, E. coli comes from beach sand and seagulls. High E. coli levels can cause stomach aches, diarrhea, skin rashes and respiratory infections, she said. Children are particularly vulnerable because they take in twice as much water as adults when they're swimming, Kinzelman said.

"Swimming is essentially communal bathing," she said. "When you're ill you shouldn't be swimming."

The federal Clean Water Act requires each state to monitor and notify the public of water quality on coastal beaches. Indiana requires water testing two days a week. The La Porte County Health Department uses monitoring data to make decisions about beach closings here. Most E. coli monitoring tests take up to 18 hours to produce results, said Kinzelman, who now is studying a new testing method that produces results in several hours. An ongoing problem, Kinzelman said, is figuring out the key sources of the contamination.

"About 90 percent of beach closing actions are caused by unknown sources," she said. "It's not just what happens at the beach, but also what happens in the watershed."

Three approaches worked in Racine to reduce the numbers of closings due to high E. coli readings. One of the easiest was changing the beach grooming strategy to create deeper grooves, almost like furrows plowed in a farm field, Kinzelman said. Racine added lined waste cans with lids, to cut down on bird scavenging. Volunteers planted dune grass in drainage areas to absorb waste water.

Racine also passed an ordinance prohibiting feeding shore birds, Kinzelman said, but a lot of public education is needed to make it effective.

A more costly but effective approach is to re-engineer storm water systems that feed into the beaches and lake water. Al Walus, general manager of the Michigan City Sanitary District, said Kinzelman's information will be useful to the Trail Creek Watershed Steering Committee in helping to pinpoint sources of E. coli in the Trail Creek system.

Posted by Marcia Oddi on February 5, 2009 01:39 PM
Posted to Environment

Ind. Decisions - Tax Court decides one

In Belterra Resource Indiana v. Ind. Dept. Rev., a 7-page opinion issued 2/4/08, Judge Fisher concludes:

In this light, the subject transaction may seem suspicious: title to the Miss Belterra was transferred to Belterra in international waters immediately after Pinnacle acquired it. Belterra, however, explains that it was necessary for Pinnacle to contract for the construction and purchase of the riverboat because Pinnacle “had the access to the capital and relationships with lenders necessary to engage in the construction of a multi-million dollar riverboat such as the Miss Belterra.” (Plant Aff. ¶ 2, May 11, 2007.) The Department has offered no evidence to controvert that claim. Because Belterra’s stated business purpose is facially valid, the Court concludes that Belterra’s transaction was not a sham.

Conclusion. For the foregoing reasons, Belterra is not subject to use tax on its acquisition of the Miss Belterra. Accordingly, Belterra’s motion for summary judgment is GRANTED, and the Department’s motion for summary judgment is DENIED.

Posted by Marcia Oddi on February 5, 2009 01:25 PM
Posted to Ind. Tax Ct. Decisions

Courts - Justice Ruth Bader Ginsburg undergoes surgery [Updated]

According to MSNBC, she was operated on for early stage pancreatic cancer.

[Updated] Some news reports are now appearing:

"Justice Ginsburg undergoes surgery for pancreatic cancer" by Joan Biskupic of USA Today.

"Ginsburg Hospitalized for Pancreatic Cancer" in the NY Times.

"Ginsburg Has Surgery for Pancreatic Cancer" by Adam Liptak of the NY Times.

Posted by Marcia Oddi on February 5, 2009 01:20 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In Michael Davis v. Review Bd. of the Indiana Workforce Development, and Parkview Health System, Inc., a 10-page opinion, Judge Friedlander writes:

Michael T. Davis appeals the decision of the Unemployment Insurance Review Board of the Indiana Department of Workforce Development (the Review Board) denying him unemployment benefits. Davis presents the following restated issue for review: Is the Review Board’s finding that Davis voluntarily left his employment with Parkview Health System, Inc. (Parkview) without good cause contrary to the law and the evidence? We affirm.

Contrary to Davis’s assertions on appeal, the relevant inquiry is not whether he was “at fault” for his demotion. Rather, the Review Board appropriately looked to whether Parkview acted fairly and reasonably in demoting Davis. Davis’s demotion was clearly justified by ongoing substandard work performance, and Davis has failed to establish that the terms of the alternative position offered him were unreasonable under the circumstances. Parkview did not act so unreasonably or unfairly as to compel a reasonably prudent person to quit work. Therefore, we affirm the Review Board’s determination that Davis voluntarily terminated his employment with Parkview without good cause in connection with the work. Judgment affirmed.

In Alton Moss v. State of Indiana , a 12-page opinion, Judge Riley writes:

Appellant-Defendant, Alton Moss (Moss), brings this interlocutory appeal of the trial court's denial of his motion to suppress evidence in a prosecution against him for felony murder, Ind. Code § 35-42-1-1(2), and conspiracy to commit robbery while armed with a deadly weapon, a Class B felony, I.C. §§ 35-41-5-2, 35-42-5-1. * * *

Issue. Whether the trial court‟s denial of Moss‟ motion to suppress was supported by sufficient evidence. * * * On appeal, Moss argues that the trial court should have granted his motion to suppress because, at the time of his initial incriminating statement, he was being illegally detained, in violation of his rights under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution. * * *

Based on the foregoing, we conclude that the trial court's denial of Moss' motion to suppress was supported by sufficient evidence.

In Mercho-Roushdi-Shoemaker-Dilley-Thoraco Vascular Corp. v. James W. Blatchford, III, M.D. and Eve G. Cieutat, M.D., a 22-page opinion involving enforcement of non-competetion agreements, Judge Riley writes:

In sum, Blatchford and Cieutat cite the live or affidavit testimony of seven Terre Haute doctors who believe that enforcement of the non-competition agreements would have tended to injure the Terre Haute community. MRSD has failed to direct us to any conflicting evidence that it designated to the trial court. Because MRSD has not designated any evidence contradicting Blatchford and Cieutat’s own evidence that tends to show that enforcement of the non-compete clauses would have been contrary to public policy, we affirm the trial court’s conclusion that the non-compete clauses are unenforceable. * * *

Based on the foregoing, we conclude that the trial court did not err in granting summary judgment in favor of Blatchford and Cieutat regarding the enforceability of the non-compete clauses, nor did the trial court err in granting summary judgment in favor of MRSD on Counts I-VII of Blatchford and Cieutat’s Complaint. Affirmed.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Gregory Holland v. State of Indiana (NFP)

Joseph A. Craigo v. State of Indiana (NFP)

Nita Joyce Trott-Fluty v. State of Indiana (NFP)

Christopher G. Parker v. State of Indiana (NFP)

Posted by Marcia Oddi on February 5, 2009 12:40 PM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Yet more on: Issues continue with state's new welfare eligibility system

Updating this ILB entry from yesterday, the Indianapolis Star's editorial today begins:

The welfare modernization program that the Daniels administration has so adamantly defended against mounting criticism will finally take a much-needed timeout, at least partially.

The new head of the state Family and Social Services Administration, Anne Murphy, has decided to halt the rollout of the automated eligibility determination system in the 33 counties where it's not yet in place. She says the FSSA wants to make sure its private contractor is capable of handling the load in those counties, which include Indianapolis and contain the majority of the more than 1 million Hoosiers receiving benefits.

Murphy has met with many concerned parties, from recipients to legislators, since taking over the helm from Mitch Roob in December, FSSA spokeswoman Lauren Auld said.

"The secretary is addressing some of the challenges clients and providers have brought to our attention and trying to make sure people are getting the services they're eligible for," Auld said.

Posted by Marcia Oddi on February 5, 2009 12:33 PM
Posted to Indiana Government

Ind. Gov't. - "Internet provider forces local agencies offline"

Keith Roysdon of the Muncie Star-Press has this report today, which points up something to think about:

MUNCIE -- The local United Way and Chamber of Commerce are working like it's 1999 this week because of massive information technology failures, and officials are frustrated that their IT provider isn't returning their phone calls.

The Web site for the Muncie-Delaware County Chamber of Commerce has been off-line for days and the United Way is relying on primitive technology -- phones and fax machines -- because its e-mail and Web site are down.

Officials are blaming Phoenix Technologies, which has also been targeted for performance failures in Grant County.

"Ultimately, they'll have to answer for what happened," said Gary Chenault, president and CEO of United Way of Delaware County. * * *

The disruption for Web sites and e-mail systems began Friday or over the weekend, when Phoenix Technologies customers ranging from the Chamber of Commerce to Marion General Hospital received e-mails notifying them of a switch in servers. People who received the e-mail told The Star Press they thought the disruption would be relatively brief.

But Marion General Hospital's Web site was down all weekend, said hospital spokesman Randy Deffenbaugh. The Internet site was working this week.

Users trying to reach www.muncie.com -- the Web site for the Chamber of Commerce -- on Wednesday got a "site under construction" page.

The United Way site shows an "address cannot be found" page.

Chamber official Terry Murphy emphasized the concern that prospective customers and developers looking for information about Muncie and Delaware County would reach a dead end.

"We're always working with prospects and they need to be able to get information," Murphy said.

The chamber is working to recover with help from other providers, as is United Way, where Chenault said, "The loss of any device that allows you to communicate -- and we're in a communications world -- you're going to be impacted by it."

Posted by Marcia Oddi on February 5, 2009 12:15 PM
Posted to Indiana Government

Wednesday, February 04, 2009

Ind. Decisions - Apparently none from the Court of Appeals today

Apparently no opinions again today from the Indiana Court of Appeals, making two days in a row. This may portend a slew of them the end of the week.

[Update] Seems like I no sooner posted the above that I received this note from a reader who, like many attorneys I know, reviews every opinion issued each day with care:

I really don't get the push to get a bunch of opinions out at the end of the month (you saw the last couple of days of January) then none or very few for the first week of the month. Why not have a rule that says no more than 4 published and 10 NFPs can be issued on any day? Something is to be said for giving everyone time to digest what is coming down.

ILB: Might be a good idea, but I'd suggest it be an internal policy.

Posted by Marcia Oddi on February 4, 2009 12:12 PM
Posted to Ind. App.Ct. Decisions

Law - More on avoiding tax problems

On Jan. 24th the ILB linked to a useful article providing a step-by-step description of what you have to do to comply with the requirements imposed on household employers by federal and state law.

Today that same writer, Ron Lieber of the NY Times, has another good column, this one headed "How to Avoid a Tom Daschle Tax Problem ."

Also interesting is this Feb. 3rd NY Times column by Catherine Rampell, headed "How Common Is Tax Evasion?" It begins:

So far three of President Obama’s high-profile nominees have acknowledged that they failed to pay some income taxes they owed, and two have already pulled out of contention as a result. Does this high hit rate in the pool of Obama picks likely mean that tax evasion is widespread?

Posted by Marcia Oddi on February 4, 2009 09:59 AM
Posted to General Law Related

Ind. Decisions - "Federal magistrate urges ban of schools’ faith study"

Rebecca S. Green reports today in the Fort Wayne Journal Gazette:

A federal magistrate recommended Tuesday the cessation of the Huntington County Community Schools’ religious education program.

The ruling came about two weeks after a hearing in the case of H.S. vs. the Huntington County Community Schools over the district’s religious release-time education program.

The “By the Book Weekday Religious Instruction” program uses modular trailers plugged into city utilities but parked on the property of Horace Mann Elementary School. It is run by Associated Churches of Huntington.

The lawsuit, filed by the American Civil Liberties Union on behalf of a parent identified only by her initials, seeks to shut down the program, alleging it violates the establishment clause of the U.S. Constitution by allowing religious instruction on school property.

On Jan. 21, the case went before U.S. District Magistrate Roger B. Cosbey for a hearing on whether the program should be temporarily shut down in its current incarnation.

School officials sought the dismissal of the lawsuit, a request Cosbey denied.

In his recommendation, Cosbey wrote that the school district faces minimal harm if the preliminary injunction is granted, while the plaintiff faced irreparable harm with continued violation of her First Amendment rights.

Any inconvenience caused to Associated Churches of Huntington County by the preliminary injunction does not outweigh any harm caused by the constitutional violation, Cosbey wrote in his ruling.

He wrote that the case seemed to be about one ultimate question: whether “religious instruction to elementary students on public school property during the school day, in a church-owned mobile classroom (is a violation) of the Establishment Clause.”

Cosbey found that it was, saying that the use of tax-supported property and the tax-supported public school system to aid religious groups to spread their faiths made the program unconstitutional.

The school system has 10 days to file written objections to Cosbey’s recommendation. If it files a written objection, the plaintiff then has an additional 10 days to respond to those documents.

In a written statement issued Tuesday, school officials said District Senior Judge James Moody, who is in the Hammond Division of U.S. District Court for northern Indiana, will make a ruling after those two deadlines have passed.

Posted by Marcia Oddi on February 4, 2009 09:52 AM
Posted to Indiana Decisions

Ind. Gov't. - Still more on: Issues continue with state's new welfare eligibility system

Updating this ILB entry from Jan. 19th, Ken Kusmer of the AP has a story today that begins:

The state's new social services chief has halted any further rollout of the privatized, automated welfare intake system until agency officials are sure it can handle the additional volume.

The decision by Secretary Anne Murphy of the Family and Social Services Administration comes just weeks into her tenure -- and at a time when lawmakers have introduced bills to tinker with the new system that has met harsh criticism.

Courts - More Indiana decisions cited in Coleman-Frankin Senate dispute

The ILB admits it had lost track of the election law dispute over the U.S. Senate race in Minnesota, soon going into its fourth month. However, Indianapolis attorney Bill Groth has helpfully sent along information about additional Indiana decisions being cited in court filings. Here is his note, updating this ILB entry from Dec. 23rd, 2008:

For the election law geeks among your readers, it may be of interest to note that both sides cite and either rely upon or attempt to distinguish two celebrated Indiana election cases, Roudebush v. Hartke, 405 U.S. 15 (1972)(arising out of the close 1972 senatorial contest between incumbent Democratic Sen. Vance Hartke and his Republican challenger Roudebush) and McIntyre v. Fallahay, 766 F.2d 1078 (7th Cir. 1985)(arising out of the incredibly tight 1984 election between Republican challenger David McIntyre and incumbent Democratic Congressman McCloskey).
Both cases are cited and discussed at pp. 8-10 of Al Franken's reply brief filed in the Minnesota Supreme Court in Franken's suit against Minnesota Gov. Pawlenty and Sec. of State Ritchie seeking an order requiring them to issue him a certificate of election pending the final outcome of Norm Coleman's ongoing contest action. Franken's reply brief can be here.

All the documents in the Franken v. Pawlenty case are available here, via the Moritz College of Law Election Law site. The issue: "Whether Senate candidate Al Franken is entitled to receive an election certificate signed by the governor and secretary of state while an election contest brought by his opponent, Norm Coleman, is ongoing."

All of the documents in the related case, Coleman v. Franken, are similarly available, here. The issue: "Whether there were irrgeularities in the conduct of the election that affected the result."

Posted by Marcia Oddi on February 4, 2009 08:11 AM
Posted to Courts in general

Ind. Courts - "Gwin takes over as Clarksville town judge"

Matthew Ralph reports in the New Albany News & Tribune:

With family present and a handwritten sign on a refreshment table in the back of the room welcoming him back, attorney Sam Gwin was sworn in as Clarksville town judge on Monday night by a governing body he served for more than two decades.

Gwin, 67, retired at the end of 2007 as town attorney and was officially appointed by the town council Monday night to fill a vacancy created when former Town Judge Joseph Weber was elected to Clark Superior Court.

Posted by Marcia Oddi on February 4, 2009 08:08 AM
Posted to Indiana Courts

Ind. Courts - “Think B4UDrive” DVD is the brainchild of Steuben Circuit Court Judge Allen Wheat

Jeff Wiehe reports today in the Fort Wayne Journal Gazette, in a story that begins:

Just like real life, it begins with a traffic stop by a police officer.

The officer approaches the car to find a female driver who appears drunk. She’s given field sobriety tests and a chemical test for alcohol, all of which she fails. She’s hauled in a squad car to jail, where she’s booked and charged with operating a vehicle while intoxicated. A trial in front of a judge and jury follows, complete with real lawyers, presentations of evidence and jury deliberations.

Just like real life, only this time everything is fictional and recorded on a DVD.

Dubbed “Think B4UDrive,” the DVD is the brainchild of Steuben Circuit Court Judge Allen Wheat. It depicts what happens when someone is arrested for drunken driving.

The DVD, produced by a class from Ball State University, will soon be available free to schools in the state.

The DVD and complementary interactive Web site are part of Wheat’s master’s project for the Indiana Judicial Center.

“It just struck me, that when visiting with young men and women, that when they graduated from high school they had sound knowledge of the legislative and executive branch of government, but they knew next to nothing of the judicial branch of government,” said Wheat, who handles Steuben’s juvenile court.

Wheat’s courtroom was used to shoot the footage with local lawyers and other members of the community playing roles in the ensuing drama.

Everything was made as real as possible, Wheat said. He said he didn’t want to make something to scare or intimidate, but to educate.

“It was another day at the office,” he said of the proceedings. “The trial portrayed is a very simple trial, like hundreds of others that go on across the state each week. The primary motivation was not to lecture about the evils of drinking and driving. Kids are lectured about that plenty.”

Posted by Marcia Oddi on February 4, 2009 08:01 AM
Posted to Indiana Courts

Tuesday, February 03, 2009

Ind. Decisions - More on: Transfer list for week ending Jan. 30, 2009

Notable among the cases denied transfer in the list posted today was that of Melinda Loveless v.State of Indiana. See this ILB entry from Nov. 20, 2008 re "her latest bid to have her 60-year prison term thrown out."

Posted by Marcia Oddi on February 3, 2009 04:06 PM
Posted to Indiana Transfer Lists

Ind. Courts - More on "IHSAA appealing Jasmine Watson ruling"

Updating this story from Jan. 24th, and other ILB entries, the AP is reporting this afternoon:

BLOOMINGTON | Faced with a lawsuit it sees little chance winning, the Indiana High School Athletic Association has ruled baseball and softball are not comparable sports and that girls may now try out for their school's baseball team.

Under IHSAA rules, girls may participate on boys' teams in baseball, basketball, football, soccer and wrestling when a comparable girls program does not exist at the school. But following the lawsuit filed against the IHSAA in November on behalf of a Bloomington South freshman, the association's board recently voted 18-9 to let girls try out for baseball even if their school has a softball team.

IHSAA Commissioner Blake Ress said he thought the rule was correct as it was, but he will not fight the change.

"Our odds are against us winning it in court," Ress told The Herald Times. "It's not impossible, but as we researched it, more states are doing this and when there have been court issues, more often they said they could (play) than they couldn't."

Posted by Marcia Oddi on February 3, 2009 03:47 PM
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Two more jail lawsuits thrown out"

Dan Hinkel of the NWI Times is reporting this afternoon:

Two more lawsuits regarding the treatment of inmates at the Lake County Jail have been thrown out of federal court.

On Friday, Fort Wayne federal Judge William C. Lee granted a defense motion for summary judgment in the suit filed by inmate Willie James Gilder, who raised dozens of alleged issues involving a staph infection, medications, jail meals and alleged treatment by guards in a complaint filed in October 2007.

Lee ruled Gilder did not follow jail grievance procedures before he filed his federal suit against Lake County. Lee granted a motion for summary judgment by the defendants, Lake County Sheriff Rogelio "Roy" Dominguez and jail Warden Bernard Freeman.

On Monday, Hammond federal Judge Joseph Van Bokkelen granted a similar motion for summary judgment in the suit filed against Dominguez and Freeman by Robert S. Cranshaw in January 2008. Cranshaw also did not pursue a proper jail grievance process in his long slate of claims involving meals and guard treatment, Van Bokkelen ruled.

Posted by Marcia Oddi on February 3, 2009 03:03 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Transfer list for week ending Jan. 30, 2009

Here is the transfer list for the week ending Jan. 30, 2009. It is three pages long.

Two transfers were granted last week; see details in this ILB entry from Jan. 31st.

Five 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 February 3, 2009 12:04 PM
Posted to Indiana Transfer Lists

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

In Best v. City of Portland (ND Ind., Judge Lee), a 10-page opinion, Judge Williams writes:

In this appeal we must deter- mine the preclusive effect in a federal civil suit of the denial of a suppression motion in an earlier Indiana state criminal case that never reached the merits of the criminal charges. The denial of the suppression motion was affirmed in an interlocutory appeal, but the affirmance was followed by a motion in the trial court to reconsider based on new evidence. The trial court never ruled on that second motion because the govern- ment dismissed the prosecution. Applying Indiana law, as we must under 28 U.S.C. § 1738, we hold that the denial of the suppression motion does not have later preclusive effect because it was an interlocutory ruling that was never subsumed within a final judgment on the merits. We also hold that the use of a criminal defendant’s statements at a suppression hearing held after charges are initiated constitutes use in a “criminal case,” and can be the basis of a valid Fifth Amendment claim.

Posted by Marcia Oddi on February 3, 2009 11:59 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "You can't arrest me, you're a referee"

Indiana courts, but of the hardwood variety.

Ken Kosky reports in the NWI Times:

An angry fan who attacked a referee following a basketball game Friday night didn't realize until too late that the referee he was attacking also is an Indiana State Police trooper.

The trooper ended up having the fan -- Patrick Rempala, 64, of Michigan City -- taken to Porter County Jail on charges of battery and resisting.

The arrest occurred following Friday night's boys basketball game at Washington Township High School, which was hosting Michigan City Marquette.

The referee who was attacked -- Indiana State Police Trooper Glen Fifield -- said Rempala rushed out of the stands after the game and confronted the referees, screaming "you suck."

Fifield said Rempala pointed at his chest and bumped him, but Fifield tried to walk away. A school official stepped in between the two, but he said Rempala went around the official and came after him again. Fifield said Rempala pushed him, at which time he identified himself as a police officer and told him he was under arrest.

Rempala said, "You can't arrest me, you're a referee," and he pushed the trooper again, Fifield said. After a struggle and with assistance from spectators, Fifield gained control of Rempala and arrested him. Fifield said during the struggle, Rempala tried to choke him with his referee's whistle lanyard. Fifield said he suffered knee and shoulder pain after the struggle.

Rempala, once he realized the referee he attacked really was a trooper, reportedly said, "That's not fair."

Posted by Marcia Oddi on February 3, 2009 11:18 AM
Posted to Indiana Courts

Ind. Courts - "Crows invade Fulton Co. Courthouse trees"

From the AP:

ROCHESTER, Ind. — A large flock of crows is creating a mess around the Fulton County Courthouse.

For about a month, hundreds of noisy crows have been roosting in trees and making a mess on the west side of the courthouse in Rochester, about 40 miles south of South Bend.

County Commissioner Roger Rose says it’s the first time crows have invaded the courthouse grounds.

Commissioners plan to use an electronic distress call to scare the crows and force them to scatter. Purdue University Extension Educator Mark Kepler says the only other way to scare the crows is with explosions, which can’t be used in a downtown area.

Kepler says the crows should eventually disperse from the courthouse in the spring to mate and nest.

Posted by Marcia Oddi on February 3, 2009 09:17 AM
Posted to Indiana Courts

Ind. Courts - Yet more on Vanderburgh Little Hatch Act cases

Updating this ILB entry from Jan. 16th, quoting a story from the Evansville Courier & Press that begins:

A ruling on whether the local Republican Party owes a Democratic officeholder thousands of dollars in legal fees will hinge on arguments about the party's intentions.

Thomas B. Langhorne of the C&P reported Feb. 2 in a story beginning:

A judge has ruled the Vanderburgh County Republican Party does not have to reimburse Democratic County Councilman Ed Bassemier for the roughly $12,000 he spent defending himself against a GOP lawsuit that the party ultimately dropped.

The lawsuit alleged Bassemier was ineligible to seek office in 2008 under the Little Hatch Act, which limits the political activities of people whose jobs are funded at least in part by federal money. Bassemier is safety director at Evansville Regional Airport, which receives federal funds.

“The Court does not find that (GOP Chairman Nick) Hermann prosecuted this claim for the primary purpose of harassing or maliciously injuring Bassemier,” Judge Carl Heldt’s ruling says. “The Court also finds that there are reasonable attorneys who would consider that Hermann’s claim was worthy of litigation.”

The C&P has also made available a copy of Judge Heldt's 5-page, Jan. 29th ruling - access it here.

Posted by Marcia Oddi on February 3, 2009 08:33 AM
Posted to Indiana Courts

Ind. courts - "Hudson gets 60 years for abducting attorney"

Updating this ILB entry from July 10, 2008 headed "Anderson police remain on the lookout for a man believed to have abducted his lawyer at knifepoint," the Muncie Star-Press has a report today headed "Hudson gets 60 years for abducting attorney." The story begins:

ANDERSON — A former Jay County resident convicted of abducting his attorney at knifepoint was sentenced Monday to 60 years in prison by Madison Superior Court 1 Judge Dennis Carroll.

Richard L. Hudson, 52, more recently of Anderson, pleaded guilty but mentally ill in December to charges of kidnapping and armed robbery.

On July 7, lawyer Thomas Hamer was returning client Hudson to the Madison County jail after a civil hearing in Indianapolis when Hudson took the lawyer hostage at knifepoint.

Police said Hamer was left bound in a nature preserve on Anderson's east side. The attorney's SUV was found, along with the knife used in the abduction, in a Muncie parking lot two days later. Hudson was arrested July 11 while driving another stolen vehicle in Madison County.

Hudson wasn't in the courtroom Monday when Judge Carroll imposed the sentence. The defendant had stood up and began cursing when Hamer entered the courtroom, insisting he did not want to attend the hearing. The judge eventually agreed to allow Hudson to return to the Madison County jail.

Posted by Marcia Oddi on February 3, 2009 08:12 AM
Posted to Indiana Courts

Ind. Courts - Marion County reportedly suspends bench warrants for delinquent parents

That according to this WTHR 13 Eyewitness News report by Sandra Chapman. Some quotes:

Indianapolis - Arrest warrants have vanished for thousands of deadbeat parents as a result of a new court policy. * * *

"It's going to make it more difficult, there's no question about that," said John Owens, Chief Deputy Prosecutor for Child Support.

Owens' office deals with 72,000 open cases in any given month. Back in 2005, his office rolled out it's "Top Ten Most Wanted" on outstanding warrants. But now, even the worst of the worst can walk free because of a new policy.

"There could be some improvements," said Marion County Court Administrator Glenn Lawrence.

He said the warrants were suspended to allow no-shows the chance to explain why. He also said the county recently settled a case in which a defendant was denied due process.

"They might put them in jail and not bring them immediately before the court," Lawrence said. "So we felt it best to go ahead and do a blanket expungement [sic] of those outstanding - whatever they were - bench warrants."

Marion County's Civil Division says it would typically get between 12 and 15 bench warrants a day for delinquent parents failing to show up in court. But that all stopped abruptly about a week ago.

"Immediately, we had to recall and do away with all of the warrants we had in file and try to run them up around the state of Indiana to notify the sheriffs not to serve our warrants, because they were no longer active," said Marion County Sheriff's Department Capt. Norman Buckner.

Now, the courts can only order what's called a "body attachment".

"It's not really an arrest. It's a notice to bring them before the court," Lawrence said.

The challenge is finding the deadbeats during court hours. With the warrants erased, traffic stops will no longer show police the individual is wanted.

"They're getting a lot more than due process. It's just so unfair to these children that they're going without," Sadler said.

Indiana's Judicial Center is reviewing the new policy. Both the state's prosecutors and judges associations are looking to lawmakers to help remedy the situation.

But for now, failure to appear doesn't mean going to jail.

Posted by Marcia Oddi on February 3, 2009 08:07 AM
Posted to Indiana Courts

Monday, February 02, 2009

Ind. Law - Can you rely on the Indiana Code? Where are we with the Indiana Code issues?

In 2008 I published two articles in Res Gestae titled "Can You Rely on the Indiana Code?" Here is Part I from May, 2008, and here is Part II from October 2008.

The point of the articles was that all the state's substantive statute law was not included in the Indiana Code, that this fact was not general knowledge, and that the General Assembly should act to make all its statutes available in the Indiana Code.

At the second meeting of the 2008 legislative interim Code Revision Commission, held on December 9, the Legislative Services Agency staff presented to the Commission members the draft of a bill (PD 3770) to begin to address the issue of statutes not complied in the Indiana Code. The staff referred to this as "Phase I." The staff also unveiled its plans for "Phase II," to be accomplished during the interim between the 2009 and 2010 sessions.

These plans were not reduced to writing and no minutes of the December 2008 meeting have been posted. However I attended the meeting and took extensive notes, and they are the focus of my latest article on the Indiana Code, that will appear in the January/Feburary 2009 issue of Res Gestae. An advance copy is available here.

The article, titled "Resolving issues of statutes not compiled in the Indiana Code," is in three sections - (1) an introduction and background; (2) my notes of LSA presentation (printed against a gray background); and (3) my concerns about some aspects of the planned approach, which is in some ways unlike that taken with the prior recodifications. These are found in the final two pages of the article.

The Phase I bill, introduced as SB 346, is scheduled to be heard Wednesday by the Senate Committee on Judiciary. SECTIONS 9-33 of the bill add 25 noncode acts or parts of acts to the Indiana Code and SECTION 34 repeals their noncode versions. This is all to the good, although, as the LSA staff indicated in their December presentation, there remain many hundreds of provisions to be dealt with.

SB 346 is definately a step in the right direction and should be enacted. My issue with SB 346 is with SECTIONS 1-7. I would urge that these SECTIONS be eliminated from the bill. These sections rewrite Indiana Code, Title 1, Article 1, Laws Governing the State, to make the expiration of an effective date the equivalent of a repeal. For instance, SECTION 7 would add a new IC 1-1-5-10 to read:

Sec. 10. The expiration of a statute has the same effect that the repeal of the statute, effective on the date of the expiration of the statute, would have had.

My concern is set out in the article:

SECTIONS 1-7 of the 2009 bill draft appear to be unnecessary in light of the LSA staff’s announced plan to include a blanket repealer in the 2010 bill draft, that would repeal all past, expired noncode provisions. Expiration provisions in the future could be drafted as self-repealing provisions.
For example, rather than:
This SECTION expires July 1, 2015.
The provision would be drafted:
This SECTION is repealed July 1,2015.
This would alleviate potential unanticipated consequences resulting from making the major changes currently proposed by SECTION 1-7, which adds an entirely new class, “expiration,” to statutes historically dealing only with the interpretation of the repeal of laws. The proposal has no definitions and gives no indication of whether the change is to operate only prospectively.

These was no discussion at the December meeting of what other states have done, research undertaken, etc. My concern was only enhanced in this past week when I researched the statute involved in the Redmond v. State decision (see today's entry here) -- an example of the ramifications of seemingly harmless language added to the Indiana Code without adequately looking into potential consequences. I do not think a change of this magnitude should ever be made unless: "(1) it is clear that there is a problem; (2) there is only one way in which the problem can be corrected; and (3) correcting the problem will not result in a substantive change in the law." These are the same rules the LSA staff uses in making decisions about technical Code corrections.

I also have concerns about SECTION 8 of the bill, as there was no discussion or explanation of SECTION 8 at the meeting and it appears to have nothing to do with recodification.

As for the Phrase II bill, I have concerns which you may share after reviewing the minutes of the December meeting. Much of the decisionmaking appears to be subjective, rather than objective. As I conclude in the new article, implementing the goal of putting the 24-years' worth of uncodified but still operative, substantive Indiana statute law into the Indiana Code would require adding back:

statutes that the LSA staff has indicated in its testimony it likely would exclude from recodification, including: provisions that may not be anticipated to be used by a large number of people; statutes with future expiration dates; applicability sections; and statutes that one or several legislators might not want made a part of the Indiana Code.

Posted by Marcia Oddi on February 2, 2009 02:25 PM
Posted to Indiana Law

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

For publication opinions today (0):

NFP civil opinions today (2):

Dwight G. Fry v. Indiana Dept. of Correction, Prison Health Services of Indiana, et al (NFP) is a 3-page petition for rehearing. The Court agrees with Fry's claim that his Notice of Appeal was timely filed, based on a 1988 SCOTUS decision that " the date a pro se prisoner delivers notice to prison authorities for mailing should be considered the date of filing, not the date of receipt. * * * Therefore, we withdraw that reason for dismissing Fry’s appeal." However, the Court ays that the other ises were fully addressed in the original opinion, conluding: "We reaffirm our decision to dismiss Fry’s appeal, but grant the petition for rehearing solely for the purpose of clarifying the reasons for that dismissal."

Term. of Parent-Child Rel. of C.S. v. Dept. of Child Services of Grant County (NFP) - " Concluding the Grant County Department of Child Services (“GCDCS”) presented clear and convincing evidence to support the trial court‟s judgment terminating Father‟s parental rights, we affirm. "

NFP criminal opinions today (2):

Jeremy Chambers v. State of Indiana (NFP)

Maurice Carter v. State of Indiana (NFP)

Posted by Marcia Oddi on February 2, 2009 11:48 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on Redmond v. State

Last week the ILB commented on the decision in the case of Dale Redmond v. State of Indiana, noting:

The Court writes:
We find the amendment of Indiana Code § 35-38-1-17(a) in 2005 to include the term “imposed” to be critical.
Here is PL 2-2005 (HEA 1398), SECTION 123, setting out the amendment. SEC. 123 begins on p. 98.

What is confusing to me is that this is a Code Correction Bill. A correction bill is introduced at the beginning of each session to correct technical errors made in the last session - typos, reconciling where two laws amended the same section, etc. Scroll though the act and you will see that.

Code correction bills never make substantive change. Yet there is no clue as to where the "technical" changes made to IC 35-38-1-17 came from. What error are they intended to remedy?

I looked at the history line to the current version of IC 35-38-1-17 and noted that prior to the 2005 amendment, the section had been amended in 2001, but that that amendment did not affect subsection (a). The next most recent amendment was from 1991. So what was the genesis of the "technical correction" made as part of the 2005 bill? What error was intended to be corrected?

The change was part of the "annual technical corrections bill to correct errors in the Indiana Code," a product of the legislative interim Code Revision Commission of 2004. The minutes of the 9/8/2004 meeting, where this bill is discussed, are available online. Here are a few excerpts from the minutes that shed light on the "technical correction" concept:

Craig Mortell, Deputy Director of the Office of Code Revision (OCR), addressed the Commission about the 2005 Technical Corrections (TC) bill. Mr. Mortell distributed: (1) PD 3006, the first draft of the 2005 TC bill; (2) a SECTION-by-SECTION outline of PD 3006; (3) a supplementary draft containing SECTIONS proposed for addition to the contents of PD 3006; and (4) a SECTION-by-SECTION outline of the supplementary draft. [ILB Note - "PD" means preliminary draft.]

Mr. Mortell expressed his gratitude to many persons who provided information on technical problems suitable for resolution in the 2005 TC bill, and especially recognized the contribution of the attorneys of the LSA's Office of Bill Drafting and Research, who reviewed all of the 2004 Acts and informed OCR of the technical problems they found in their review. Mr. Mortell then discussed several types of technical corrections contained in PD 3006, including the following:
-- Conflicts (instances in which two 2004 Acts amended a single Code section in inconsistent but not incompatible ways).
-- Incorrect internal references.
-- Miscellaneous wording and numbering problems (redundancies, missing words, misplaced articles, incorrectly numbered subdivisions, etc.).
-- Prior millennium references (12 instances in which Code sections indicate that the current date is to be filled in on a form and mark the space where the current year is to be filled in with "19__"). * * *

Mr. Mortell said that OCR is careful not to include a correction for a perceived problem in the TC draft unless: (1) it is clear that there is a problem; (2) there is only one way in which the problem can be corrected; and (3) correcting the problem will not result in a substantive change in the law. Out of concern to maintain these standards, he said, OCR wishes to highlight certain "close calls" -- technical corrections presently included in PD 3006 or the supplementary draft that require careful analysis under these standards. He said that OCR wants to draw the Commission's attention to these "close call" corrections and other proposed corrections requiring additional explanation, to make sure that the Commission is comfortable with their inclusion in the 2005 TC bill. Mr. Mortell and Mr. Stieff discussed the following:

I won't quote these all, you may find them on pp. 3-4 of the minutes. But here is one example of what was considered a "close call":

(1) IC 6-1.1-22.5-10: PD 3006 resolves the conflict between the version of IC 6-1.1-22.5-10 as added by P.L.1-2004 and the version of IC 6-1.1-22.5-10 as added by P.L.23-2004. The only difference between the two is that the P.L.1-2004 version includes the word or word fragment "not" in the following context: "the county treasurer shall give not notice of tax rates ...". Because the inclusion of "not" in this context appears to have been unintentional, PD 3006 strikes "not".

The amendment to IC 35-38-1-17 is not mentioned at all in the minutes.

Friday I wrote the LSA:

I have a question about PL 2-2005 (HEA 1398), SECTION 123 that amended IC 35-38-1-17.

Can you tell me what was the genesis of the correction?

I've checked the minutes from 2004, and although they refer to the technical corrections bill, PD 3006, and to several outlines of the bill, none of this appears to be available online.

LSA promptly responded over the weekend with this note, sending me "the relevant excerpt from the 2005 TC bill outline that explains the change to IC 35-38-1-17 that you were inquiring about.":

IC 35-38-1-17
Inconsistent terminology. IC 35-38-1-17 refers to an individual who is the subject of a criminal prosecution both as "defendant" and as "convicted person". HB 1398 makes the references consistent by changing "defendant" to "convicted person". An individual referred to in IC 35-38-1-17 has been convicted and sentenced and has begun serving a sentence, so "convicted person" seems more appropriate than "defendant". No other section in IC 35-38-1 refers to an individual who has already been sentenced as a "defendant".
Effective: Upon passage.
Consulted: Stephen Johnson, Exec. Director, Pros. Attnys Council

But the introduced version of the bill, HB 1398-2005, goes beyond this description to add the new phrase "imposed on the person." Here is subsection (a) from the introduced version:

    SECTION 127. IC 35-38-1-17 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 17. (a) Within three hundred sixty-five (365) days after:
        (1) ~~thedefendant~~ a convicted person begins serving ~~his~~ the sentence imposed on the person;
        (2) a hearing is held:
             (A) at which the ~~defendant~~ convicted person is present; and
             (B) of which the prosecuting attorney has been notified; and
        (3) ~~obtaining~~ the court obtains a report from the department of correction concerning the ~~defendant's~~ convicted person's conduct while imprisoned;
the court may reduce or suspend the sentence. The court must incorporate its reasons in the record.

I have written to LSA asking for any additional background information.

Finally, here are some quotes from the 1996 Court of Appeals decision in Liggin v. State, an opinion which, like the Redmond decision last week, turned on the word "imposed":

Liggin's interpretation of the relevant triggering event is at odds with the plain meaning of IC § 35--38--1--17(a), which does not mention the imposition of sentence but instead states that the court may modify a sentence "after ... the defendant begins serving his sentence." Nevertheless, Liggin cites in support of his position Sanders v. State, 638 N.E.2d 840 (Ind.Ct.App.1994). In Sanders, this court affirmed the trial court's determination that it could not modify the defendant's sentence more than 365 days after it had been imposed unless the prosecutor consented to the modification. Liggin notes that in Sanders, this court stated, "Pursuant to I.C. 35--38--1--17(a), a trial judge may order 'shock probation' within 365 days after a sentence is imposed." Id. at 841. We observe that the above statement was not central to the holding in that case and thus constituted dicta. In any event, and regardless of how it is characterized, it was an inaccurate summarization of the present statute's contents and thus an incorrect statement of the law.

When construing a statute we must give the statute its apparent and obvious meaning. Williams v. State, 600 N.E.2d 962 (Ind.Ct.App.1992). The predecessor to IC § 35--38--1--17 stated that the court could reduce or suspend a defendant's sentence "within one hundred eighty (180) days after it imposes a sentence". See Ind.Code Ann. § 35--4.1--4--18 (repealed 1983). However, in 1983 the statute was amended to provide that the modification could occur "within 180 days after ... the defendant begins serving his sentence", thus unambiguously changing the triggering event from the imposition of the sentence to the commencement of serving the sentence. The present statute is the same as the 1983 amended version in all relevant respects except that in 1991 the Indiana General Assembly changed the time period from 180 days to 365 days. Thus, the current version of the statute specifies that a trial court may modify a sentence within 365 days after the defendant begins serving his sentence. In the instant case, Liggin had not yet begun serving the sentence at the time the trial court purported to modify it. Therefore, the conditions of IC § 35--38--1--17(a) were not present, the trial court was without authority to modify the sentence, and erred originally in doing so. The trial court properly granted the State's Motion to Correct Erroneous Sentence. Judgment affirmed.

Posted by Marcia Oddi on February 2, 2009 08:42 AM
Posted to Ind. App.Ct. Decisions

Environment - "Pollution control at issue: Lawmakers push to reverse policy"

Eric Bradner has this report today in the Evansville Courier & Press. Some quotes from the lengthy story:

Democratic state lawmakers are worried that recent changes in how the Indiana Department of Environmental Management enforces environmental laws will make it tougher to crack down on polluters.

Now, legislators are trying to force the state's environmental agency to reverse those changes. * * *

Two bills before the Indiana Legislature — bills Daniels called "very unwise" — would reverse IDEM's decisions.

House Bill 1351, by state Rep. Ryan Dvorak, D-South Bend, would require IDEM to re-open an enforcement division separate from its other divisions.

Senate Bill 456, authored by state Sen. Bob Deig, D-Mount Vernon, would restart the partnership between IDEM and local air pollution agencies.

Posted by Marcia Oddi on February 2, 2009 08:26 AM
Posted to Environment

Ind. Gov't. - "Critics say FSSA offices fail to offer voter registration forms"

Mary Beth Schneider has a front-page story in today's Indianapolis Star that begins:

When low-income Hoosiers turn to state social-services offices for help, they're supposed to get something more than financial assistance. They're also supposed to be able to register to vote.

But two national voting-rights groups say Indiana is failing that federally required responsibility, and, as they have done elsewhere, are threatening to sue the state.
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Project Vote and the Association of Community Organizations for Reform Now, or ACORN, say their November survey of nine Indiana Family and Social Services Administration offices in Lake and Marion counties found that none were providing voter registration forms to clients. Eight didn't even have the forms available, the groups said.

Nicole Kovite, a Project Vote official, said workers at the FSSA offices were unaware of the federal law that makes social-services offices -- along with Bureau of Motor Vehicle branches and some other public offices -- responsible for helping people register to vote.

"We don't do voter registration here. You'll have to go somewhere else," one FSSA staffer reportedly told a member of the voting group.

Ind. Law - Laws on littering, snow removal

Ken Kosky's NWI Times' "It's the Law" column for this week looks at littering. It begins:

In tough economic times, some people try to save money by cutting spending on anything that isn't essential.

But people who cancel their garbage service should keep in mind that it is illegal to dump garbage along a rural roadside, to burn it or to place it in someone else's garbage can or Dumpster without their permission.

Indiana law states a person who places garbage on the property of another commits littering, a ticketable offense. Indiana law allows fines of as much as $1,000, more if it involves a lit cigarette.

Last week's (Jan. 26th) column dealt with winter-related laws and ordinances. Some quotes:

Most towns, cities and counties have an ordinance that requires people to move their vehicles off the roadway anytime 2 inches or more of snow falls. Generally, the cars must remain off the roadway until the plows remove the snow or the snow melts or is compacted to less than 2 inches.

Porter County Sheriff's Department Lt. Chris Eckert said cars on the roadway were wreaking havoc last week.

"County Highway is having trouble opening streets up and citizens are having trouble navigating the roadways because of those cars buried with snow for days," Eckert said, adding blocked roads also hamper the response of emergency vehicles.

Most jurisdictions also have an ordinance preventing people from shoveling, plowing or blowing snow from private property onto a public street or alley. Police said when people put snow onto the roadway, it could cause a motorist to slide and crash.

Posted by Marcia Oddi on February 2, 2009 08:15 AM
Posted to Indiana Law

Environment - "Hoosier streams still have high levels of mercury: Reduction in air emissions isn't reflected in water"

Shari Rudavsky reports in the Indianapolis Star today in a lengthy, front-page story that begins:

Levels of mercury remain high in several Indiana streams and rivers, despite years of effort to reduce the contaminant, which can cause neurological damage.

More than 80 percent of samples taken from Indiana streams from 2004 to 2006 contained detectable levels of mercury, according to a U.S. Geological Survey study. Preliminary analyses on data collected in 2007 and 2008 indicate that not much has changed.

The 2004-06 study also found that 10 out of the 25 streams monitored had at least one reading that exceeded the safe level for mercury, and about 6 percent of more than 200 samples contained enough mercury to harm humans. Analysis of the 2007-08 data is still under way.

Posted by Marcia Oddi on February 2, 2009 08:08 AM
Posted to Environment

Ind. Law - This week at the General Assembly - Week 4 [Updated]

A few quotes from Bryan Corbin's weekly "Legislative Notebook" report today in the Evansville Courier & Press:

With Indiana's unemployment rate lurching up to 8.2 percent last week, the dual imperatives for state lawmakers and the Daniels administration are to put jobless Hoosiers back to work quickly and ensure them adequate unemployment benefits.

Lawmakers are crafting the next state budget amid plummeting revenues, even as Gov. Mitch Daniels has proposed cutting state agencies by 8 percent, higher education by 4 percent and flat-lining funding for K-12 education to avoid raising taxes or dipping into reserves.

What could change the equation considerably, however, is Indiana's potential $5 billion piece of the $819 billion federal economic stimulus pie,that Indiana could receive, if Congress approves the proposed stimulus in a few weeks. Having passed the U.S. House, it's now before the U.S. Senate.

Such a mammoth $5 billion payout to Indiana would be on top of the $28.3 billion general-fund state budget Daniels is requesting from the Legislature. Between $1.5 billion and $2 billion could be used for roads and bridges, mass transit, school improvements and clean water projects.

[Updated 2/4/09] See this Corbin story today on the week so far.

Posted by Marcia Oddi on February 2, 2009 08:04 AM
Posted to Indiana Law

Legislative Benefits - "Revolving door spins out of control"

From an editorial today in the Indianapolis Star:

Indiana has not experienced a state capitol scandal to rival the Rod Blagojevich affair in many years, but there's little reason for Hoosiers to be smug about their neighboring state's troubles.

On the same day the Illinois governor was thrown out of office, a prominent Indianapolis elected official announced he was stepping down from his post to take a job as a lobbyist. A few days earlier, a newspaper reported that a recently retired state senator was back with his old colleagues -- working as a lobbyist.

We can take their word that Center Township Trustee Carl Drummer and former Sen. Robert Meeks are simply fighting for good government in a new arena. We can also ask what it is about Drummer, and Meeks, and former state Rep. Michael Ripley, and former state Sen. Larry Borst, and the dozens of others who have left the General Assembly or other elected office for the lobbying business, that makes them so employable.

Try connections, influence and particular interests, all of which matter to the industries and organizations trying to steer legislation to their benefit, with the public's benefit being incidental. Before he retired because of illness, for example, Meeks was the Senate's top budget negotiator. As the legislature deliberates on a tight state budget and a federal windfall, he will weigh in for special interests.

The dangers inherent in such coziness have prompted most states, plus the federal government, plus the Daniels administration in the executive branch here, to impose strict rules on lobbying. Indiana's legislature has not kept pace, although reformers have plugged away every year. This year, once again, the vital signs for corrective bills are weak.

Posted by Marcia Oddi on February 2, 2009 08:01 AM
Posted to Legislative Benefits

Ind. Decisions - Upcoming oral arguments this week

This week's oral arguments before the Supreme Court:

None scheduled.

Webcasts will be available here.

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

This Tuesday, Feb. 3rd:

1:30 PM - South Central Bank of Daviess County vs. Lynnville National Bank, et al - Issues raised by Appellant, South Central Bank, the decision of the Warrick Circuit Court concerning the ability of Appellee's refusal to pay a cashier's check it issued. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Kirsch. [Where: Indiana Court of Appeals Courtroom]

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

None scheduled.
_____________
* ILB note: As of now, the 2009 COA webcasts, both live and archived, may be accessed here.

Posted by Marcia Oddi on February 2, 2009 07:46 AM
Posted to Upcoming Oral Arguments

Sunday, February 01, 2009

Law - Yet more on "Kentucky Tests State's Reach Against Online Gambling"

Updating this list of earlier ILB entries under the same heading, Marcia Coyle of The National Law Journal has this lengthy story, dated Feb. 2, headed: "Kentucky suit has Web world in tizzy; At issue: forfeiture of domain names of gambling sites." Some quotes:

WASHINGTON — What if China seized the domain names of U.S. Web sites promoting religions that China bans? Or what if (horrors of horrors!) Nebraska seized and shut down the domain name law.com because its cutting-edge legal content, that state believed, encourages frivolous litigation in violation of state law?

Preposterous, right? Well, not so incredible as to stop a battery of lawyers for Internet businesses, domain registrars, civil liberties groups and others from engaging the state of Kentucky in legal battle over that state's attempt to halt Internet gambling by seizing 141 domain names whose owners are located primarily out of state or overseas.

Kentucky, which prohibits online gambling, persuaded a state trial judge last fall that the domain names were illegal gambling devices under state law, and the judge issued the forfeiture order to registrars — not owners — of the domain names. An intermediate appellate court recently disagreed, 2-1, and the state government late last month filed its notice of appeal with the Kentucky Supreme Court. Vicsbingo.com and Interactive Gaming Council v. Wingate and Kentucky, No. 2008-CA-2036.

As it heads into the state high court, Kentucky sees even odds: Two judges have agreed with its approach and two have disagreed, said Michael Brown, secretary of the Kentucky Justice and Public Safety Cabinet, who, along with Governor Steve Beshear, is leading the state's effort.

But there is nothing "even" about the impact on Internet businesses if Kentucky's legal approach prevails, say its opponents.

"I think it would make the lay of the land very uncertain for Internet businesses," said John Krieger, a partner in the Las Vegas office of Phoenix-based Lewis and Roca, and counsel to the Poker Players Alliance, which filed an amicus brief opposing Kentucky.

The whole idea behind the law, he said, is to try to make it clear enough so businesses can structure their conduct accordingly and see the legal ramifications of their actions.

"If Kentucky were able to go ahead, it certainly would make it much more uncertain for Internet businesses as to what conduct they could engage in and what jurisdiction and laws they would be subject to," he added. "It opens up a Pandora's box."

And it is a box with national and international implications, said A. Jeff Ifrah, shareholder in the Washington office of Greenberg Traurig, who, along with Bruce Clark and Ian Ramsey, Kentucky partners at Stites & Harbison, is counsel to the Interactive Gaming Council, whose members include about 60 owners of the 141 domain names at issues.

"The long-term consequence is you could have any state official on a Web-site-by-Web-site basis making moral or other determinations as to whether they believe their residents should have access," he said. "That's a First Amendment issue, a dormant commerce clause issue and an anyone-in-the-Internet business issue."

Courts - Kentucky judge admonishes lawyers whose briefs contain personal attacks on one another

Michael Stevens of the Kentucky Law Blog has some eye-catching quotes from an opinion by Judge Sara Walters Combs, Chief Judge of the Kentucky Court of Appeals. From the Jan. 23 KLB entry:

The Court of Appeals in a Madison County case (Joshua Spivey v. Commonwealth) sent a warning about unprofessional and inappropriate language in appellate briefs submitted in the case. The appellate decision was issued on Jan. 23, 2009. * * * The court was upset over the unnecessary language in which the attorneys critized the other. * * * Chief Judge Sara Combs wrote:
The briefs of both counsel contain numerous examples of unprofessional and inappropriate language; in some instances, counsel engaged in personal attacks on one another.

In another, a crude parody involving opposing counsel’s name was inserted. In one instance, counsel referred to an opposing argument as “silly.”

One of the briefs also contains unnecessary and extraneous attempts at metaphors that do not constitute arguments of law.

Sarcastic language and insidious innuendoes have no place in any legal document – be it briefs of counsel or opinions of a court. Since both sides have acted in pari delicto, we have declined to strike the briefs or to protract this appeal by ordering the filing of new briefs that conform with the basic tenets of professionalism.

However, we trust that future admonition along these lines will never again be necessary.

Posted by Marcia Oddi on February 1, 2009 01:10 PM
Posted to Courts in general

Environment - Yet more on: IDEM dissolves office of enforcement

Updating this ILB entry from Dec. 19, where I noted that although a pending IDEM guidance document on Compliance and Enforcement Response Policy, available here as 08-006-NPD, provides that it "SUPERSEDES: Classification of Environmental Violations and Criteria For Referral of Such Violations to the Office of Enforcement dated February 5, 2003," and I suggested that it would be good to compare the currently in effect (2003) with the proposed new policy to see what changes were proposed to be made ...

I received a certified letter from IDEM on Saturday, Jan. 31st, six weeks after submitting my FOIA request for a copy of the 2003 guidance document. A copy of the IDEM letter is attached.

My request is denied on the grounds that the 2003 document requested "is exempt from disclosure under IC 5-14-3-4(b) (6)" because the document "is intra-agency deliberative material which was never authorized for promulgation."

Posted by Marcia Oddi on February 1, 2009 12:47 PM
Posted to Environment

Ind. Law - "Bill allows DNA from felony arrestees"

Niki Kelly of the Fort Wayne Journal Gazette reports today on Senate Bill 24. Some quotes:

Tens of thousands of Hoosiers never convicted of a crime could find their DNA in state and federal databases under a bill making its way through the Indiana Senate.

The legislation is an attempt to take the next step with a scientific advance many consider to be the best crime-fighting tool in decades. But others wonder whether government is going too far and invading the privacy rights of citizens.

“Why not just get everyone’s DNA when they are born?” asked Sen. Tim Lanane, D-Anderson. “There is still a presumption of innocence in our system.” * * *

Indiana’s DNA database began in 1996 and has slowly been expanded over the years. Law enforcement currently takes DNA samples from all convicted felons, resulting in a database with about 122,000 samples. * * *

Only seven states have laws requiring everyone arrested for a felony to give their DNA, according to information given at last week’s hearing.

But Asplen said taking the DNA at the point of arrest – rather than conviction – can prevent crimes. * * *

But there is a cost to running all the DNA samples.

According to a fiscal analysis by the Legislative Services Agency, it would cost $3.8 million annually to analyze and maintain the additional DNA samples.

Currently there is a $2 DNA sample processing fee included in court costs for all Hoosiers convicted of misdemeanors or felonies. That fee would have to increase to $11 to process the new felony arrestee DNA.

“Whether you are going to get much bang for the buck is unclear,” said Larry Landis, executive director of the Indiana Public Defender Council. “We would spend millions in public funds upfront and all the savings are speculative.”

But a representative from Strand Analytical Laboratories in Indianapolis gave members of the Senate Judiciary Committee last week a study that showed state and local government would save almost $20 million a year in law enforcement and judicial costs owing to the number of crimes being prevented.

Then there are the privacy concerns. The American Civil Liberties Union fought a measure last summer to expand the federal DNA database to arrestees, noting it could be a Fourth Amendment violation. This amendment protects people from unreasonable searches and seizures.

But the author of the bill, Sen. Joe Zakas, D-Granger, said initial court rulings have upheld the arrestee laws as constitutional.

In the only challenge to reach the state Supreme Court level, the Virginia Supreme Court ruled that the taking of DNA upon arrest “is analogous to the taking of a suspect’s fingerprints upon arrest and was not an unlawful search under the Fourth Amendment.”

Zakas and members of the committee last week did amend Senate Bill 24 to include a provision allowing those whose cases never result in formal charges or were later dismissed or acquitted to expunge the DNA from the database.

The process was described as “fairly” automatic, although the person would have to send a request to the Indiana State Police with supporting documentation.

“The person falsely accused ought not bear any burden,” Landis said. “It’s just another hoop to jump through. If you get dismissed, there should not only be an automatic expungement, there should be an apology.”

Sen. John Broden, D-South Bend, voted for the bill but wants to tweak it so the removal is more automatic and people don’t fall through the cracks.

Littlejohn said the state police might have to conduct more than 100 expungements a day under the law, something that would “overwhelm” the lab.

The high number is because 40 percent of cases statewide are dismissed, Landis said. Also, some people are arrested but not formally charged, and others who are charged with felonies later plead guilty to misdemeanors.

In comparison, there are few convictions that are overturned or vacated annually that would require the DNA to be removed.

Landis did say the public defender council has previously supported the general idea of the database, when convictions are entered and the presumption of innocence is gone. An added feature is that the DNA database can be used to exonerate people.

“It cannot only convict the guilty but it can, and has, freed the innocent,” said Sen. Richard Bray, R-Martinsville.

The bill passed out of committee 7-2 last week and now must go to the Senate Appropriations Committee because of its price tag.

Posted by Marcia Oddi on February 1, 2009 09:53 AM
Posted to Indiana Law

Ind. Law - Notre Dame students hear about alcohol and the law"

Liz Harter has an interesting story today in the South Bend Tribune. Some quotes:

The speaker began his lecture by showing a picture he found on Facebook, a social networking Web site, of underage Notre Dame students holding alcohol in their profile pictures and another of two girls drinking beer while driving.

“Those are public pictures on the Notre Dame network,” said the speaker, C.L. Lindsay. He noted he joined the Notre Dame network, which requires a Notre Dame e-mail address to join, by “borrowing” one.

“A lot of people have their pictures open to the Notre Dame network; that’s a problem.”

Town-grown relations, or the relationship between the University of Notre Dame and the South Bend area, was the agenda at Notre Dame’s “Alcohol, Parties and the Law” lecture last week.

Notre Dame’s student government brought Lindsay, the executive director of the Coalition for Student and Academic Rights, to campus to help students understand their rights when it comes to off-campus partying. Lindsay used humor and pictures of dolls in compromising situations to present important information to the students.

CO-STAR offers free legal help to students. Lindsay is the author of the book “The College Student’s Guide to the Law.”Lindsay then went on to talk about South Bend laws regarding consuming and buying alcohol off campus. Consumption is not illegal in 14 states, but possessing alcohol as a minor is illegal in all 50, he said.

“It’s really impossible to consume beer without possessing it at some point,” Lindsay joked.

He warned, though, that it is “way better” to be underage and drinking than to be someone who is older than 21 and serving alcohol to people underage.

“(Police) want to get to the people who are enabling drinking more than they want to get the people drinking,” he said. “It’s an infraction for every (underage) person that’s at your party.”

If there are 17 underage drinkers at the party, he said, the host would be fined $17,000 and could spend up to eight and a half years in jail.

“It will never be enforced at this level, but that’s where it will start,” he said. “This means that a $5,000 fine and a year on parole is a really good deal.”

Lindsay also provided tips to students on how to throw a party without the police getting involved.

Posted by Marcia Oddi on February 1, 2009 09:44 AM
Posted to Indiana Law

Ind. Law - "2 Indiana legislators want longer sentence for killing fetus"

Jon Murray has this story today in the Indianapolis Star. Some quotes:

An Indianapolis bank shooting that resulted in the deaths of a teller's unborn twins has sparked legislation that would lead to harsher penalties for such crimes.

Two separate proposals would increase the sentences for killing fetuses, while carefully trying to avoid igniting an abortion debate.

The measures would add up to 55 years to the prison sentence of a person convicted of a crime against the mother, depending on the offense, no matter the fetus' stage of development or whether the suspect knew the woman was pregnant.

Such a change would fill what supporters see as a gap in Indiana law. The knowing or intentional killing of a fetus that has attained the ability to live outside the womb, commonly recognized as about seven months by state courts, already qualifies as murder.

But short of viability -- as with the twins of Indianapolis bank teller Katherin Shuffield, who was five or six months pregnant when she was shot -- the most severe charge available is feticide. The Class C felony carries a potential penalty of two to eight years in prison.

"I don't think two to eight years is sufficient for the taking of a human life," said Marion County Prosecutor Carl Brizzi, who worked with the two Indianapolis lawmakers who authored the bills.

Abortion-rights advocates have argued that giving fetuses separate legal status could jeopardize women's reproductive rights or put pregnant women at risk of prosecution for harmful behavior. At the same time, anti-abortion activists have held such laws up as a toehold in the fight to outlaw abortion.

Those are debates Brizzi hopes the bills avoid. "This has nothing to do with reproductive rights," he said. * * *

A legal expert voiced support for Merritt's bill because of its narrower scope. But he cited several potential problems in both proposals, including inconsistent penalties depending on the crime against the mother.

"That sort of bothers me," said Henry Karlson, a retired law professor at the Indiana University School of Law-Indianapolis. "Why should the life of a fetus be worth 10 years in one circumstance and 45 years in another?"

Last year, Karlson suggested that lawmakers increase the feticide charge to a Class A felony, which carries 20 to 50 years in prison.

But Merritt and Brizzi said the sentence enhancement option provides a heavy penalty without making the unborn child's death a separate charge, a route they figured was safer politically by avoiding the debate over when life begins.

"This seems to be the middle of the road," Merritt said.

Indiana is among 36 states with some form of fetal homicide law. If either pending bill becomes law, the state would join at least 19 others with statutes covering the earliest stages of pregnancy. * * *

The Shuffields have run into legal hurdles in a wrongful-death lawsuit accusing Huntington National Bank of ignoring a history of robberies and providing too little security at the branch, which since has closed. Because the Indiana Supreme Court has interpreted the Child Wrongful Death Act to apply only to "children born alive," their best hope to try such a claim is for the daughter who survived for a few hours after birth.

Their attorney, Kathy Farinas, said the couple planned to attend a Senate committee hearing Tuesday morning in support of another proposal, Senate Bill 341. It would expand the civil statute to cover viable fetuses but would apply only to new cases.

Here is the side-bar labeled "The Feticide Bills" prepared by reporter Murray:

State legislators from Indianapolis have authored bills that would create a sentence enhancement for the death of an unborn child at any stage of development. The penalty -- added to a sentence when prosecutors prove the defendant caused the unborn child's death while committing a crime -- would be equal to the crime's "statutory advisory sentence." The advisory sentence is that laid out in Indiana law before any mitigating or aggravating factors are considered that could shorten or lengthen a prison term.

In a murder case where the mother was the victim, the enhancement would add up to 55 years to the prison sentence.

» Senate Bill 236: [Sentence enhancement for feticide.] Applies to murder or felony murder cases. The sponsor, Sen. James W. Merritt Jr., R-Indianapolis, also plans to add attempted murder. Senate Judiciary Committee Chairman Richard Bray, R-Martinsville, said the bill will get a hearing as soon as next week.

» House Bill 1698: Similar to the Senate bill, but the proposal by Rep. Mike Murphy, R-Indianapolis, also covers a wide array of crimes. The bill, co-authored by David Yarde, R-Garrett, has not been set for a hearing in the House Judiciary Committee.

Some background. This ILB entry from April 30, 2008, is headed "Interesting juxtaposition of legal views this week." This ILB entry from June 30, 2008, is headed "Tragic cases often spur fetal homicide laws" The entry includes several useful links, including one to the National Conference of State Legislatures resource on "Fetal Homicde," last updated Nov. 2008.

More background. Senate Bill 341, referenced at the end of today's story, applies to wrongful death or injury of a child, not to the crime of feticide. It specifies that the law concerning the wrongful death or injury of a child: (1) does not apply to a legally performed abortion; and (2) applies to a fetus that has attained viability. Authored by Senators Becker and Steele.

The bill would redefine "Child" in the civil statute, IC 34-23-2-1, to include "a fetus that has attained viability (as defined in IC 16-18-2-365)."

If this rings some bells for readers, it may be because this week, in the case of In Savannah Linley Ann Nelson Ramirez, by her father, Stephen Ramirez v. James A. Wilson and Suzy-Q Trucking (see ILB 1/29/08 summary here, 5th case), plaintiff unsuccessfuly contended that "that S.R., a full-term and viable fetus, should be considered a “child” pursuant to IC 34-23-2-1."

The COA, in a divided opinion, said "no," citing the Supreme Court's 2002 ruling in Bolin v. Wingert, where, based upon the language of the statute, the Supreme Court ultimately concluded that "the legislature intended that only children born alive fall under Indiana's Child Wrongful Death Statue."

Posted by Marcia Oddi on February 1, 2009 08:55 AM
Posted to Indiana Decisions | Indiana Law

Environment - Hazardous chemical and liquid fertilizer spills in the news

"Toxic soup in St. Marys: Chemicals spill from Essex Group; river ice masks extent of fish kill" is the headline to a story today by Dan Stockman in the Fort Wayne Journal Gazette. Some quotes:

A wire factory spilled hundreds of gallons of hazardous chemicals into the St. Marys River along the Rivergreenway and upstream from two popular parks, but state environmental officials said there is no risk to human health.

The spill, which involved chemicals that can burn the skin even when diluted, occurred Jan. 22 and was discovered Jan. 23. Essex Group, 1601 Wall St., notified state and federal officials that an estimated 300 gallons of a chemical mixture had spilled from a rooftop tank.

The tank was surrounded by a containment vault, but the chemical spilled out of the vault and into a stormwater collection system that drained into the river just north of Taylor Street, according to a report filed by Essex with the National Response Center.

The chemical mixture was about 50 percent phenol, about 40 percent petroleum distillates, and about 10 percent cresylic acid, Indiana Department of Environmental Management spokeswoman Amber Finkelstein said. Containing and cleaning up the spill has been difficult because the river is covered by a layer of ice.

Phenol is corrosive and even when diluted can cause serious burns after prolonged contact, according to National Library of Medicine data. Petroleum distillates are toxic and flammable, while cresylic acid can cause severe burns. In 1992, an Essex worker was burned on about 40 percent of his body in a cresylic acid spill inside the facility. * * *

The spill occurred just across the river from the Rivergreenway trail and just upstream from Swinney Park and Headwaters Park, but parks department officials did not know about the spill until contacted by The Journal Gazette on Friday. IDEM’s Finkelstein said the agency contacted the Fort Wayne Fire Department and local homeland security officials.

Fire department spokeswoman Susan Banta said the department did not contact the parks department because “we were not asked to make an official response.”

Local Director of Homeland Security Bernie Beier said parks officials were not notified because there was no danger to humans outside of the immediate area of the spill.

“IDEM felt the majority of it was trapped in the ice,” Beier said.

He said IDEM’s air testing showed there was no vapor threat outside the area and no threat from the water beyond where crews were already working to remove the ice.

“Had IDEM said, ‘There is a risk or a potential risk or we can’t verify the risk,’ there would have been more notifications,” Beier said. “They’re the ones that said there’s no threat to people beyond the immediate spill area.”

"Well shut, test wells to be drilled after liquid fertilizer spill: Former Stanley Fertilizer tank leaked about 500 yards from Franklin Park site" is the headline to this story today by Bruce C. Smith in the Indianapolis Star. Some quotes:

Plainfield has turned off a municipal water well as a precaution and hired a firm to monitor ground water after chemicals leaked into storm sewers from a nearby liquid fertilizer storage tank.

The Town Council voted this week to spend up to $20,000 to have test wells drilled and monitored for chemicals moving toward the well in Franklin Park.
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Plainfield has several other wells in other locations, so the town has plenty of safe water, according to Town Engineer Tim Belcher.

An Indiana Department of Environmental Management report about the December incident indicates that 2,000 to 3,000 gallons of agricultural fertilizer leaked from an old storage tank at the now-closed Stanley Fertilizer Co., 423 N. Vine St.

The spill is about 500 yards from the well in Franklin Park, which is turned off until the hazard is removed, according to town officials.

"Our biggest concern after the initial containment was that the spill occurred within what we consider a wellhead protection area," Belcher said.

The Stanley business is "within the estimated one-year time of travel," he said, meaning the period of time for water or contaminants to move underground to the well.

"Within that boundary, spills such as this are of more concern because they have the potential to reach our well."

Emergency work to contain the fertilizer leak also disclosed strong odors of diesel fuels in the soils up to a foot deep on the site, according to the IDEM report. The property was a bulk petroleum storage facility before the Stanley family bought it in the 1960s for a fertilizer business. That operation has been closed for about a decade.

Town officials said members of the Stanley family have claimed that the fertilizer in the tank was old and diluted with water.

Field tests conducted by IDEM found the spilled chemical, which can cause fish kills in streams, was 13 percent nitrogen and 38 percent phosphorous.

A series of "sentinel" wells will be drilled by Astbury Environmental Engineering to monitor the concentration and direction of travel of the suspect chemicals, Belcher said. The goal is to get an early warning before any contaminant can reach the city water source.

"It is possible that the (chemicals) will dissipate and not pose any problem, but we'll do these tests to find out what's going on."

The town will ask for repayment of its expenses from Stanley Fertilizer.

The spill was discovered Dec. 22 when chemicals ran into the streets around the property.

Posted by Marcia Oddi on February 1, 2009 08:45 AM
Posted to Environment

Saturday, January 31, 2009

Ind. Courts - Judicial Center's Legislative Update #3

Here is the Indiana Judicial Center's Legislative Update, current through Jan. 30th -- a good way to keep on top of court bills, and bills impacting criminal and civil matters.

Posted by Marcia Oddi on January 31, 2009 06:34 PM
Posted to Indiana Courts

Ind. Courts - More on "St. Joseph County Probate Judge to issue pay raises despite council's objections"

Updating this entry from Jan. 28th, the original story from Troy Kehoe from WSBT TV Mishwaka has been updated. Some quotes:

Judge Nemeth defends the increases, saying they are needed to keep and attract competent personnel.

He also told County leaders that none of the changes would cost taxpayers a cent, because all the money would come from "probation user fees" collected from juvenile offenders.

"That's the fund from which we take money to pay the increases probation officers have received over the last few years. And, what I'm asking is that we extend it to some of our other employees," Nemeth said.

But, county leaders say that tactic isn't fair to thousands of other county employees who won't get pay raises this year. * * *

"I can't control the other county offices. All I can do is take care of what I'm entrusted with, and that's the Probate Court," Nemeth said.

And Nemeth told the Council, that's exactly what he plans to do.

"I'm certainly not threatening anybody, I'm just -- I'm going to act," he said.

That's left the County Council with just two options: agree or fight the mandate.

"It makes an already tough situation almost impossible to deal with," said a frustrated Morton.

Still, Nemeth made it clear what he thinks the County's decision should be.

"If you oppose it, that means we go to court," he told the Council. "Then, you will be spending tax money."

For background, start with this ILB entry from Sept. 6, 2008.

Posted by Marcia Oddi on January 31, 2009 06:18 PM
Posted to Indiana Courts

Environment - Leaking underground storage tanks force Muncie plaintiff out of his house

Seth Slabaugh reports today in the Muncie Star-Press:

MUNCIE — For years, the owners of a former gasoline station failed to warn a neighbor that the ground water and soil beneath his house was contaminated with gasoline, a lawsuit alleges.

Jeffery Wray, a computer technician at Ball Memorial Hospital, complains in the lawsuit that gasoline vapors entering his basement from leaking underground storage tanks (LUSTs) forced him out of his home at 1821 S. Walnut St.

“The fumes were so bad I got a headache after visiting for 30 minutes,” said Wray’s attorney, Joey Davis. * * *

IDEM is overseeing cleanup of the site next door to Wray’s house. The agency hasn't taken enforcement action against the responsible party, [Barry Sneed, a spokesman for IDEM] said, because “they've been working cooperatively with our staff to conduct the required environmental studies and submit remediation work plans for our review.”

He added: “The responsible party has informed our staff that they are working to purchase the neighboring property. If this property is purchased, the responsible party may modify their remediation work plan.” * * *

“At no point subsequent to the tests … did anyone from either defendants, or even from IDEM, communicate the findings to plaintiff,” alleges the lawsuit filed in Delaware Circuit Court 1. “In fact, it was not until plaintiff requested the assistance of counsel recently with respect to worsening smells of gasoline in his basement and house that plaintiff learned this his property, including its soil and ground water, are contaminated.”

A ground water sample from a monitoring well just outside Wray’s basement detected benzene levels of 4,160 parts per billion. IDEM requires closure of residential properties when benzene levels reach 5 ppb.

Wray’s father, who died of cancer in 1993, and Wray’s mother, who died of cancer in 2002, both lived at the house for many years, according to the lawsuit. In addition, the couple’s dog died of cancer in 1999. Wray’s aunt, who also lived in the house for several years, died of cancer last year.

Here is a link to IDEM's Leaking Underground Storage Tanks (LUSTs) data page. The Star-Press has taken the data for the five counties it serves in East Central Indiana and created an online database - access it here.

Posted by Marcia Oddi on January 31, 2009 03:34 PM
Posted to Environment

Courts - "Justices Step Closer to Repeal of Evidence Ruling"

From the front-page of this morning's NY Times, a long story by Adam Liptak. Some quotes:

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision. * * *

The fate of the rule seems to turn on the views of Justice Anthony M. Kennedy, who has sent mixed signals on the question. As in so many areas of the law, there are indications that the court’s liberal and conservative wings are eagerly courting him. They are also no doubt looking for the case that, with Justice Kennedy’s vote, will settle the issue once and for all.

The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.

Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.

In Herring, Chief Justice Roberts seemed to be advocating those kinds of approaches. “To trigger the exclusionary rule,” he wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”

The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the case — in which an Alabama man, Bennie D. Herring, was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant — was sloppy recordkeeping in a police database rather than a mistake by an officer on the scene. Since the misconduct at issue in Herring was, in the legal jargon, “attenuated from the arrest,” the decision may apply only to a limited number of cases.

But the balance of the opinion is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”

A broad reading of the decision by the lower courts, Professor [Craig M. Bradley, a law professor at Indiana University] said, means “the death of the exclusionary rule as a practical matter.”

Access earlier ILB entry on Herring from Jan. 15th here.

Posted by Marcia Oddi on January 31, 2009 02:03 PM
Posted to Courts in general

Ind. Decisions - Transfers granted in two cases, including Papa John's Pizza case

The transfer list will not be available until Monday, but the ILB has received notice of two transfers granted Thursday, the 29th.

The first is Thomas Williams and Sanford Kelsey v. Kelly Eugene Tharp and Papa John's U.S.A., Inc. See summary of 7/11/08 COA opinion here. Here is a list of earlier ILB entries on this case, including several press stories.

The second is James H. Helton, Jr. v. State of Indiana - From the 5/16/08 COA opinion: "Given Helton’s trial counsel’s misunderstanding of the law which applies to this available and dispositive defense, he could not have given Helton competent advice on whether to plead guilty, and his performance fell below an objective standard of reasonableness. And had trial counsel filed a motion to suppress, the trial court would have been compelled to grant that motion, and the State would have likely been obliged to dismiss the charges against Helton. The burden to prove “a reasonable probability of acquittal” in making an ineffective assistance of counsel claim after pleading guilty is an onerous one. See Segura, 749 N.E.2d at 503. It is rare that we reverse the denial of a petition for post-conviction relief on these grounds, but Helton has satisfied that burden here. Helton has satisfied both prongs set out in Strickland. The law is with Helton, and, thus, we reverse the post-conviction court’s order. Reversed."

Posted by Marcia Oddi on January 31, 2009 09:33 AM
Posted to Indiana Transfer Lists

Friday, January 30, 2009

Ind. Courts - Updating "LaPorte deputy prosecutor shot"

Updating earlier stories, Laurie Wink of the Michigan City News-Dispatch reported Jan. 28 in a story that begins:

LA PORTE - A judge has ordered Stephan Koethe and his wife, Superior Court 3 Judge Jennifer Evans, to remove all firearms from their residence and to refrain from consuming alcohol right before or during the times when Koethe's two children are in their care.

The ruling comes five weeks after a shooting incident in the Koethe-Evans home in La Porte in which Evans, then a deputy prosecutor, was grazed on the head.

Walter Chapala, special judge in La Porte Superior Court 2, signed the order Tuesday following a Jan. 14 hearing in La Porte Circuit Court. He also ordered all parties, including the children and the children's mother, Megan Koethe, to participate in an evaluation by Gary Durak, Valparaiso. After a report on the evaluations is submitted, Chapala will hold another hearing to determine whether the existing custody and parenting time schedule should be maintained, according to the court order.

From Stan Maddux' report in the NWI Times:

A LaPorte County judge, who was shot last month, and her husband are under orders not to have guns or alcohol present while having custody of his children.

The restrictions are in response to a request for a change in custody by the man's ex-wife and were ordered by Walter Chapala, a special judge in the case under review in LaPorte Superior Court 2.

Specifically, the judge ordered Jennifer Evans and her husband, Stephan Koethe to remove all guns from their home while his children, ages 9 and 8, are in their care.

Evans and Koethe also cannot drink alcohol just before the start of their visitation and while having custody of the children.

The order signed Tuesday resulted from a Jan. 14 hearing on a motion by Megan Koethe for changes in custody and parenting time.

In this story today Laurie Wink reports:

MICHIGAN CITY - The shooting incident that wounded La Porte Superior Court Judge 3 Jennifer Evans late Dec. 22 is still under active investigation by the St. Joseph County Prosecutor's Office.

Posted by Marcia Oddi on January 30, 2009 04:31 PM
Posted to Indiana Courts

Courts - Rhode Island federal judge sprinkles opinion with links to songs

The headline to the story reported by Katie Mulvaney in the Providence Rhode Island Journal is "Judge rules R.I. law restricting billboards unconstitutional." But what interested the ILB was not the crux of the ruling, but the judge's approach. From the story:

PROVIDENCE — In a decision sprinkled with music references, and including links to YouTube, a federal judge has ruled unconstitutional a state law that restricts the content of billboards near highways.

U.S. District Judge William E. Smith on Wednesday upheld Anthony Joseph Vono’s right to keep a billboard on top of a building at 101 Poe St., off northbound Route 95 near the Route 195 split. Smith found that state law violated the First Amendment of the U.S. Constitution by affording greater protection to commercial speech over political speech. * * *

State law and regulations prohibit new billboards close to highways with certain exceptions — including an exception for signs “advertising activities conducted on the property upon which they are located.” * * *

The Rhode Island Affiliate of the American Civil Liberties Union filed suit on Vono’s behalf, arguing that it is unconstitutional to base restrictions on whether the billboard is promoting on-premises or off-premises activities. * * *

Asked about references in his ruling to and Web links to songs such as the Beatles’ “The Long and Winding Road” and Five Man Electrical Band’s “Signs,” Judge Smith explained that he wanted to make the decision more interesting to read and perhaps more accessible to the under-30, computer-oriented generation.

“The novelty of citations to YouTube and the idea that you could access music as you plod through the opinion hopefully makes a kind of dry subject a little more fun and interesting,” he wrote in an e-mail. “It seems to me that judges should look for ways to get people interested in important subjects like the First Amendment, to get them talking about it. Hopefully this will accomplish that goal in a small way.”

Here, thanks to Howard Bashman of How Appealing, is the 37-page opinion in Vono v. Lewis.

See, from pp. 2-3 of the opinion, an example involving footnotes 3 and 4.

Posted by Marcia Oddi on January 30, 2009 02:10 PM
Posted to Courts in general

Law - "Billable Hours Giving Ground at Law Firms "

That is the headline to a lengthy front-page story today in the NY Times, reported by Jonathan D. Glater. The story explores both sides of the issue. It begins:

Lawyers are having trouble defending the most basic yardstick of the legal business — the billable hour.

Clients have complained for years that the practice of billing for each hour worked can encourage law firms to prolong a client’s problem rather than solve it. But the rough economic climate is making clients more demanding, leading many law firms to rethink their business model.

“This is the time to get rid of the billable hour,” said Evan R. Chesler, presiding partner at Cravath, Swaine & Moore in New York, one of a number of large firms whose most senior lawyers bill more than $800 an hour.

“Clients are concerned about the budgets, more so than perhaps a year or two ago,” he added, with a lawyer’s gift for understatement.

Big law firms are worried about their budgets, too. Deals are drying up, and only the bankruptcy business is thriving. Two top firms, Heller Ehrman and Thelen, have collapsed in recent months. Others have laid off lawyers and staff. So cost-conscious clients may now be able to sway long reluctant partners to accept alternatives.

The evidence of a shift away from billable hours is, for now, anecdotal, as few surveys exist. But partners at a half-dozen other big bellwether firms and lawyers at corporations, who sometimes engage outside counsel, say they are more often seeing different pay arrangements.

Mr. Chesler, who is an advocate of the new billing practices, said that instead of paying for hours worked, more clients are paying Cravath flat fees for handling transactions and success fees for positive outcomes, as well as payments for meeting other benchmarks. He said that such arrangements were still a relatively small part of his firm’s total business, but declined to discuss billable rates and prices in detail.

A quote that caught my eye:

Greed may also encourage lawyers to change their payment plans. Law firms are running out of hours that they can bill in a year, said Scott F. Turow, best-selling author of legal thrillers and a partner at Sonnenschein Nath & Rosenthal in Chicago.

“Firms are approaching the limit of how hard they can ask lawyers to work,” he wrote, in an e-mail response to a reporter’s query. “Without alternative billing schemes, lawyers will not be able to maintain the rapid escalation in incomes that big firms have seen.”

The blog Above the Law picks up on the story in this entry.

Posted by Marcia Oddi on January 30, 2009 12:14 PM
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 6 today (and 22 NFP)

For publication opinions today (7):

In In Re the Paternity of Maria E. Duran: Baltasar Regalado v. Maria E. Duran and First National Bank of Valparaiso, et al. , a 24-page combined opinion, Judge Kirsch writes:

This case represents the consolidation of two causes of action pertaining to Joseph Regalado ("Joseph"). The first, a paternity action, is an appeal by Joseph's father, Baltasar Regalado ("Baltasar"), of the trial court‘s order that he could not intervene in the paternity action, which resulted in the determination that Joseph is the biological father of Maria E. Duran ("Duran"). The second, an estate action, is Duran‘s interlocutory appeal of the trial court‘s determination that, pursuant to IC 29-1-2-8, she is not entitled to inherit by means of intestate succession from Joseph's estate. On its own motion, this court consolidated these two cases into the paternity action. On appeal, Duran raises a number of estate issues, which we consolidate and restate as follows: I. Whether the trial court abused its discretion in determining that Indiana law applies to the administration of Joseph‘s estate. II. Whether the trial court erred in determining that Duran is not Joseph‘s heir under the laws of intestacy.

Baltasar also raises a number of issues of which we find the following restated issue to be dispositive: III. Whether the trial court erred in denying Baltasar‘s motion to intervene in the paternity case.

We affirm the decisions of the two trial courts.

In Indiana Family and Social Services Administration v. Alice V. Meyer (Deceased), and Dianne M. Rynn, Trustee, a 14-page, 2-1 decision with three opinions, Judge Bailey concludes:

We conclude that Indiana Code Section 4-21.5-5-13 does not speak to subject matter jurisdiction, does not mandate automatic dismissal for procedural error, and must be read to confer upon the trial court discretion in some circumstances. Just as the trial court has discretion to grant an extension of time, subject to the “good cause” requirement, the trial court has the discretion to find that a petition “subject to dismissal” should not, upon a proper showing, be dismissed. Affirmed.

BARNES, J., concurs in result with opinion. [which includes] I concur in result here because Judge Bailey and I do not see eye-to-eye on the trial court's “discretion.”

MATHIAS, J., dissents with opinion. [which includes] I respectfully dissent. The timely and complete filing of the agency record is a condition precedent to the acquisition of jurisdiction to consider a petition for judicial review.

In Beth A. Forni v. Review Board of the Indiana Department of Workforce Development and Caryn A. Guba, DDS, a 6-page opinion, Judge May writes:

Beth Forni appeals an adverse decision of the Review Board of the Indiana Department of Workforce Development. Because she did not have actual notice of the hearing before the administrative law judge (“ALJ”), the Board erred by affirming the ALJ’s decision. Therefore, we reverse and remand for a new hearing. * * *

The Board mailed notice to Forni, and therefore a presumption arose that she received notice. Scott 725 N.E.2d at 996. However, the Board does not dispute that Forni did not receive actual notice prior to the hearing; therefore, the presumption has been rebutted. Id. Thus, straightforward application of Scott compels a new hearing. * * * Our General Assembly could have made service effective on mailing, but it did not. Therefore, we will adhere to Scott, and we reverse and remand for a new hearing.

Gary Lewis v. Alvis Wynn , a 10page opinion, Judge May writes:

On March 29, 2005, Alvis Wynn shot and killed his step-daughter, Linda Lewis and then killed himself. Linda’s personal representative, her husband Gary Lewis, filed a wrongful death claim against Alvis’ estate and a negligence claim against Phyllis Wynn, who is Linda’s mother and Alvis’ wife. Gary alleged Phyllis “procured or possessed” the gun used in the shooting and “negligently stored, entrusted, monitored or allowed” Alvis to take possession of it. Phyllis moved for summary judgment on the negligence claim and on the issue of whether nonprobate transfers to her were subject to claims against Alvis’ estate. The trial court granted summary judgment for Phyllis on the negligence claim and held her liability would be limited to the extent Alvis contributed to the accounts that were transferred to her on Alvis’ death. We affirm.

In William B. Reedus v. Indiana Dept. of Workforce Development, a 14-page opinion, Judge Bailey writes:

The dispositive issue is whether the trial court erred in dismissing the appeal. * * *

The DWD asserts that Reedus failed to follow the procedure for seeking review of an administrative decision. This issue predates AOPA. * * *

Since this Court‟s decision in Izaak Walton, we have twice affirmed a trial court‟s dismissal of an administrative appeal because the petitioner failed to file an appropriate record. * * *

In light of the recent developments in the common law and the recognized split in authority on how to analyze the adequacy of a petitioner‟s filings, we review AOPA 3-33 and AOPA 5-13. * * *

Frequently, this issue matches a citizen against his state government, which is well- versed in the ways of its own administrative adjudications and the keeper of the relevant documents. Within the context of Due Process, a hyper-formalistic filing requirement is inappropriate, especially when a person has already filed timely a verified petition.

Under a strict application of AOPA, there would exist the potential for a state agency to be intentionally slow and uncooperative in producing a complete record, in hopes of securing a dismissal. In Izaak Walton, the Natural Resources Commission produced the specific documents the petitioner had requested in writing. Subsequently, the Office of the Attorney General argued diligently that the filing of those same documents, and not more, caused the trial court to lack jurisdiction. We recognize the challenge of coordinating the efforts of agencies responsible to different elected officials. Nonetheless, the State?s collective actions in Izaak Walton smacked of the fox guarding the hen house. Also as discussed in Izaak Walton, it would be a waste of resources to require the filing of irrelevant documents, potentially including notices, prehearing orders, every filing by every party, and documents relating to resolved issues. It is hard to imagine that the General Assembly intended these results.

On appeal, Reedus argues that the transcript and exhibits were not necessary for review of the ALJ?s decision. However, in his Petition to the trial court, Reedus asserted that the ALJ's decision was “unsupported by substantial evidence.” AOPA 5- 13(a)(2) requires the filing of “other documents identified by the agency as having been considered by it before its action and used as a basis for its action.” It is clear from the ALJ's order that he relied on the testimony in making his findings. Therefore, the filing of the evidence was explicitly required by AOPA 5-13(a)(2). Reedus' Petition was inadequate.

Conclusion. The trial court did not abuse its discretion in dismissing the Petition. Affirmed.

BARNES, J., concurs.
MATHIAS, J., concurs in result with opinion. [which begins] I concur in result but respectfully disagree with the majority's conclusion that a trial court may exercise its discretion in deciding whether to allow a petition for judicial review if the agency record is not filed in accordance with Indiana Code section 4-21.5-5-13. The timely and complete filing of the agency record is a condition precedent to the acquisition of jurisdiction to consider a petition for judicial review.

James E. Wingate v. State of Indiana - "In sum, having concluded that Wingate‟s trial counsel did not render deficient representation for failing to object to the filing of two additional, factually independent charges on the sixty-ninth day following Wingate‟s request for a speedy trial or for failing to object to the admission of certain evidence at trial, we affirm the judgment of the post-conviction court. "

NFP civil opinions today (8):

In the Matter of the Paternity of C.N.S. (NFP)

Armand Murat v. South Bend Lodge No. 235 of the Benevolent and Protective Order of Elks of the United States of America, et al. (NFP)

Paul Lockhart v. Corporate Svcs., Inc. (NFP)

In the Matter of T.P., b/n/f Carlos Perez v. Aimee Frank n/k/a Aimee Clark (NFP)

Dusty W. Rhodes v. Tracie M. Rhodes (NFP)

Wendy Byers, M.D. v. Linda Jean Quillen (NFP)

Eric W. Cole v. Review Board of the Indiana Dept. of Workforce Development and AVI Foodsystems (NFP)

Christina M. Striker v. Courtney W. Sparkman (NFP)

NFP criminal opinions today (14):

Fred McCormick v. State of Indiana (NFP)

Luis M. Eshebarria-Santiago v. State of Indiana (NFP)

Kassim Al-Awadi v. State of Indiana (NFP)

Paul Johnson v. State of Indiana (NFP)

Rachel Meriwether v. State of Indiana (NFP)

Booker T. Davis, Sr. v. State of Indiana (NFP)

Harry Roberson v. State of Indiana (NFP)

Marquis T. Hawkins v. State of Indiana (NFP)

Travis J. House v. State of Indiana (NFP)

Paul Hess v. State of Indiana (NFP)

Sean Welton v. State of Indiana (NFP)

Dwight Wilcoxson v. State of Indiana (NFP)

Eugene E. Clark v. State of Indiana (NFP)

Arthur Lee Gates, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on January 30, 2009 11:36 AM
Posted to Ind. App.Ct. Decisions

Courts - More on: James Bopp asks Calif. federal judge to stop disclosure of names of Prop 8 donors

Updating this ILB entry from yesterday, today the Sacramento Bee has this story headlined "Judge rejects bid to keep names of anti-gay marriage initiative backers secret." The story has a quote from "Richard Coleson, a Indiana-based elections law attorney hired by the campaign."

Posted by Marcia Oddi on January 30, 2009 10:40 AM
Posted to Courts in general

Law - "U.S. To Unveil Used-Car Database"

Here is a story that was on NPR's All Things Considered last evening. A few quotes:

A new car-titling system from the federal government will save car buyers in the U.S. up to $11 billion dollars a year, according to the Department of Justice. It's called the National Motor Vehicle Title Information System and it was 17 years in the making.

NMVTIS is designed to virtually stop something called "title washing." Scam artists have made a big business out of buying stolen, wrecked and flooded cars for pennies on the dollar, hiding the damage, and then selling them to unsuspecting buyers at full price.

Each state has different titling laws, creating a loophole of which scam artists take advantage. They'll re-title a damaged car in a series of states with different standards until the warning is gone — the title is "washed" clean. * * *

NMVTIS was created as part of the Anti-Car Theft Act of 1992, but it never got off the ground because of opposition from insurance companies, businesses that issue car-history reports, auto dealers, junkyard owners… Just about the only fans were law enforcement agencies and consumer advocates such as Bernard Brown, an attorney in Kansas City, Kan.

"No amount of persuasion would do -— foot-dragging, politics -— it's quite an awful story but at least we're here now," Brown said.

NMVTIS is still missing some key information, such as data about totaled cars from insurance companies and salvage yards. Only 36 states are submitting data so far, the rest will have to do so by the end of 2009.

"It will take us some time to get to the point where everyone is complying and all of the data is in the system," said Jim Burch, acting director of the Bureau of Justice Assistance at the Department of Justice. "But once we reach that point, consumers should feel very comfortable that the critical data is in the system and available to them."

Companies such as AutoCheck and Carfax offer car history information now, but it lacks much of the insurance data NMVTIS eventually will contain. Both companies will be allowed to buy NMVTIS data and include it in their databases.

More information here. And according to this map, Indiana is a participant.

Posted by Marcia Oddi on January 30, 2009 10:33 AM
Posted to General Law Related

Ind. Courts - "Marion County could have 3 death-penalty trials this year"

Jon Murray of the Indianapolis Star has this story today that begins:

A delay Thursday in the Hamilton Avenue slayings case could set the stage for three Marion County capital trials within four months later this year.

The surge would follow seven years without a death-penalty trial in Indiana's largest county, creating a schedule from October to January 2010 so packed that it could strain the Marion Superior Court budget.

Such high-profile cases typically last several weeks and require extra security, staff overtime and hotel rooms for sequestered jurors.

Posted by Marcia Oddi on January 30, 2009 10:30 AM
Posted to Indiana Courts

Law - "Dawn Johnsen, an IU law professor, is awaiting Senate approval"

Updating earlier ILB entries on IU-Blommington law prof Dawn Johnsen, Jon Murray of the Indianapolis Star has a lengthy feature today. Some quotes:

Dawn Johnsen, 47, joined IU in 1998 after spending five years at the Justice Department's Office of Legal Counsel, including two years as its acting assistant attorney general.

Obama nominated her this month to the same position in the influential behind-the-scenes office, pending confirmation by the U.S. Senate. No hearings have been scheduled.

Johnsen declined an interview, citing White House orders.

Her colleagues, students and legal opponents call her sharp and committed. The native New Yorker's politics lean to the left -- she once was the legal director of NARAL Pro-Choice America -- and in recent years, she has devoted her advocacy to concerns about terrorism policies under Bush. * * *

Saying "no," Johnsen told her students, is the most important role for a lawyer advising the White House on the boundaries of presidential power.

Johnsen has written critically about legal opinions under Bush that addressed the war in Iraq, interrogation methods, a military tribunal system denying certain rights to detainees captured in the war on terrorism, and Bush's use of presidential signing statements to ignore provisions of new laws.

"We must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power," she wrote last year on Slate's legal blog. * * *

Conservatives expect Johnsen's team to provide legal support for much of Obama's agenda. She is a former board member of the American Constitution Society for Law and Policy, a liberal law group created in 2001 as a counterweight to the conservative Federalist Society.

"They're going to try to pull the office and the executive branch as a whole in a different direction," said Richard Garnett, a University of Notre Dame law professor and Federalist Society member.

But Garnett was quick to add: "Even if we disagree with the views of these appointees, we can say they are talented lawyers."

No stranger to controversy, Johnsen challenged attempts to regulate abortion in the late 1980s and early 1990s. A frequent opponent, Terre Haute attorney James Bopp Jr., general counsel to the National Right to Life Committee, said she is bright and committed but won't be an impartial adviser, the term he used to describe Bush's top attorneys. * * *

Johnsen has two young sons and teaches Sunday school. Her husband, John Hamilton, serves on the board of the Monroe County Community Schools and is president of City First Enterprises, which invests in neighborhoods in Washington, D.C. Hamilton headed the Indiana Department of Environmental Management and the Family and Social Services Administration under former Gov. Frank O'Bannon.

BTW, Hamilton, who headed IDEM under O'Bannon, is the brother of federal judge David Hamilton and both are nephews of former congressman Lee Hamilton, if I recall correctly.

Posted by Marcia Oddi on January 30, 2009 07:53 AM
Posted to General Law Related

Thursday, January 29, 2009

Courts - Still more on "Justices’ Ruling in Discrimination Case May Draw Quick Action by Obama"

Updating yesterday's ILB entry, today Debbi Wilgoren and Amy Goldstein of the Washington Post report in a story that begins:

President Obama this morning signed a law that expanded the time frame in which workers can sue for discrimination they have experienced based on gender, race, national origin or religion.

The legislation -- the first he has signed since becoming president nine days ago -- is named for Lilly Ledbetter, who after years as a manager at Goodyear Tire & Rubber discovered she was being paid less than her male counterparts. She filed suit and won a jury verdict in 2003. But the lawsuit was deemed invalid, because it wasn't filed within six months of when the discrimination -- unknown to Ledbetter at the time -- began.

Ledbetter, now 70, became an icon for Obama during his campaign for the White House. Obama escorted her into the East Room this morning for the signing ceremony, and led a prolonged round of applause for her as they stood together at the podium.

Posted by Marcia Oddi on January 29, 2009 01:29 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 9 today (and 11 NFP)

For publication opinions today (9):

Thomas P. Harris v. Richard Denning and Susan K. Carpenter - "Thomas P. Harris appeals the grant of summary judgment in favor of Richard Denning and Susan K. Carpenter on Harris’s complaint alleging deceit, collusion, fraud, and misrepresentation during the course of their representation of Harris in post-conviction proceedings. On appeal, Harris raises a single issue: whether the trial court erred in granting Denning and Carpenter’s summary judgment motion. We affirm. "

Michael F. Fowler v. State of Indiana - "The corpus delicti rule provides that a crime may not be proved based solely on a
confession. Malinski v. State, 794 N.E.2d 1071, 1086 (Ind. 2003). To warrant the admission of a confession, the State must provide an inference that a crime was committed, which may be established by circumstantial evidence. Workman v. State, 716 N.E.2d 445, 447 (Ind. 1999). * * *

"The State presented sufficient evidence to provide an inference that a crime was committed, so as to establish the corpus delicti. "

In John D. Giovanoni, II v. Review Board and Clarian Health Partners, Inc. , an 18-page opinion, Judge Crone writes:

John D. Giovanoni II appeals the decision of the Unemployment Insurance Review Board of the Indiana Department of Workforce Development (“the Board”) denying his application for unemployment benefits. We reverse.

Giovanoni raises one issue on appeal, which we restate as follows: whether he was
discharged for just cause.

[Clarian] discharged Giovanoni, a pharmacy technician, after he accumulated eight absences in violation of its no-fault attendance policy. * * *

Having determined that an attendance policy that subjects employees to termination for absences and tardiness regardless of the reason is unreasonable for purposes of Section (d)(2) and that all discharges for absences and tardiness must be examined under Section (d)(3), we now turn to the case at bar. Here, Clarian's attendance policy exposed an employee to termination regardless of the reason for the employee‟s absence. As such, it is unreasonable for purposes of Section (d)(2). Because Giovanoni was discharged for unsatisfactory attendance, we must determine whether Giovanoni has established good cause for his absences under Section (d)(3). * * *

Under these circumstances, we conclude that Giovanoni established good cause for his absences and tardiness. Accordingly, Giovanoni was not discharged for just cause, and therefore we reverse the Board‟s decision.

ROBB, J. concurs.
BROWN, J., dissents with separate opinion. * * * I conclude that Giovanoni failed to demonstrate that Section (c)(2) exempted him from disqualification, and I would affirm the Board‟s decision that he was discharged for just cause.

Anthony L. Todd v. State of Indiana - "Anthony L. Todd appeals from his conviction for Failing to Register as a Sex Offender, as a Class D felony, following a bench trial. Todd raises a single issue for our review, namely, whether the State presented sufficient evidence to support his conviction. We affirm. "

In Savannah Linley Ann Nelson Ramirez, by her father, Stephen Ramirez v. James A. Wilson and Suzy-Q Trucking, a 20-page 2-1 opinion, Judge Bailey writes:

[Ramirez appeals the trial court's grant of partial summary judgment in favor of Appellees upon a claim under Indiana's child wrongful death statute, IC 34-23-2-1. We affirm.]

Ramirez raises two issues: I. Whether the trial court erroneously granted partial summary judgment upon a determination that a full-term fetus is not a “child” under the statute; and II. Whether the statute, as interpreted by our Supreme Court in Bolin v. Wingert, 764 N.E.2d 201 (Ind. 2002), violates the privileges and immunities clause of the Indiana Constitution. * * *

Ramirez contends that S.R., a full-term and viable fetus, should be considered a “child” pursuant to IC 34-23-2-1 * * *

In Bolin, our Supreme Court reviewed a case where the plaintiff had suffered the miscarriage of an eight to ten week old fetus after an automobile accident and had brought a claim for wrongful death under the statute. The trial court granted the defendant‟s motion for summary judgment, and this Court affirmed the trial court. On transfer, our Supreme Court undertook “to determine the scope of the term „child‟ in the Wrongful Death Statute.” 764 N.E.2d at 207. Based upon the language of the statute, the Court ultimately concluded that “the legislature intended that only children born alive fall under Indiana‟s Child Wrongful Death Statue.” * * *

In Horn v. Hendrickson, 824 N.E.2d 690 (Ind. Ct. App. 2005), this Court was asked to determine whether Bolin was inapplicable where a “viable” fetus of six months gestation had died as a result of a vehicular accident. * * * The Horn Court acknowledged that Supreme Court precedent is binding until it is changed either by that court or by legislative enactment, but also observed that “our supreme court‟s words and opinions are not carved in stone, and it is not inappropriate for the parties or the judges of this court to ask the court to reconsider earlier opinions.” * * *

Inasmuch as there exist no genuine issues of material fact, and the Appellees are entitled to judgment as a matter of law on the claim under Indiana‟s child wrongful death statute, the trial court properly granted partial summary judgment. Affirmed.

BRADFORD, J., concurs.
RILEY, J., dissents with opinion. [which begins on p. 8 of 20] I respectfully dissent from the majority‟s decision to affirm the trial court's grant of partial summary judgment in favor of the Appellees. In essence, the majority's opinion refuses to “proceed in direct conflict with controlling supreme court precedent,” while at the same time, it implicitly acknowledges that the result reached in Bolin v. Wingert, 764 N.E.2d 201 (Ind. 2002) is wrong. * * *

[and concludes on p. 20] In light of this dissent, the Horn decision, and this majority‟s decision, I implore the parties here to seek transfer to the supreme court, requesting a modification of its Bolin decision.

In Indianapolis Concrete Inc. v. Unemployment Insurance Appeals of the Indiana Dept. of Workforce Development , a 10-page opinion, Judge Brown writes:

Indianapolis Concrete raises one issue, which we revise and restate as whether the ALJ erred as a matter of law in his conclusion that Indianapolis Concrete is a successor employer of Indy Concrete, Inc., under Ind. Code § 22-4-10-6. We reverse. * * *

In determining whether one employer has acquired substantially all of the assets of another, other courts have considered several factors, including acquisition of: (1) manufacturing equipment and machinery; (2) office equipment; (3) corporate name; (4) inventories; (5) covenants not to compete; (6) possession of premises; (7) good will; (8) work in progress; (9) patent rights; (10) licenses; (11) trademarks; (12) trade names; (13) technical data; (14) lists of customers; (15) sales correspondence; (16) books of accounts; and (17) employees transferred. See Robert Snyder & Assocs., Inc. v. Cullerton, 221 N.E.2d 148, 154 (Ill. Ct. App. 1966); see also Imprint Techs., Inc. v. Comm'r of Econ. Sec., 535 N.W.2d 372, 376 (Minn. Ct. App. 1995); Pee Dee Nursing Home, Inc. v. S.C. Emp. Sec. Comm'n, 399 S.E.2d 777, 779 (S.C. 1990); Riteway Oil & Gas Co., Inc. v. Iowa Dep't of Job Serv., 423 N.W.2d 550, 551 (Iowa 1988).
[ILB Note: Apparently there are no Indiana cases]

Nicholas W. Cooper v. State of Indiana - "On direct appeal from the revocation of his probation, Nicholas W. Cooper asserts that he did not knowingly and intelligently waive his right to counsel. We affirm. "

Travis L. Roberson v. State of Indiana - "Travis Roberson appeals following his guilty plea to Attempted Murder, a Class A felony. Roberson contends that the trial court abused its discretion in waiving him into adult court and that his thirty-eight-year sentence is inappropriate in light of the nature of his offense and his character. We affirm."

Fiducial Investment Advisors v. Troy C. Patton - "Fiducial Investment Advisors, Inc. (“FIA”) appeals from the trial court's confirmation of an arbitration award in favor of Troy C. Patton (“Patton”). FIA presents the following issues for review: 1. Whether the arbitration panel exceeded its authority when it determined that FIA was liable to Patton for vacation pay and unreimbursed business expenses. 2. Whether the arbitration panel's award of attorney's fees was procured by fraud. We affirm. "

NFP civil opinions today (3):

In Phillip V. Frederick v. Discover Bank (NFP), a 10-page opinion in a pro se case, Judge Bradford concludes:

“[V]erification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt.” Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999). “Consistent with the legislative history, verification is only intended to eliminate the . . . problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.'” Id. (quoting S. Rep. No. 95-382, at 4 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1699). There is no concomitant obligation to forward copies of bills or other detailed evidence of the debt. Id. Given this authority and the inapplicability of Spears and Fields, we are not inclined, on this record, to reverse the trial court's summary judgment.

Having reached this conclusion, we wish to point out that it is not an endorsement of the debt collector's practices in this case. Wright & Lerch's October 24, 2005 response letter, purportedly of verification, contained no actual statement or independent documentation of the debt owed, and the debt it referenced, the $12,283.11 requested in the notice, was not the amount ultimately sought in its action against Frederick. Such minimal efforts at verification do not appear to be in the spirit, if the letter, of section 1692g(b), which requires a copy of the debt verification to be sent to the debtor. Were this a more complete appellate record, we would be inclined to reverse on these grounds, especially given the absence of any effort by the appellee to provide a brief or assist in any way with our understanding of its actions or lack thereof.

A.D. v. Allen Co. Dept. of Child Services (NFP) - "April D. (“Mother”) appeals the involuntary termination of her parental rights to her children, T.W. and T.D., claiming there is insufficient evidence supporting the trial court's termination order. We affirm. "

Alan J. Lape v. Debra R. Lape (NFP) - "Alan J. Lape (“Husband”) appeals and Debra R. Lape (“Wife”) cross-appeals from the dissolution decree terminating their marriage. We affirm in part, reverse in part, and remand with instructions. "

NFP criminal opinions today (8):

Meghan Lea Browning v. State of Indiana (NFP)

Jerry D. Johnson v. State of Indiana (NFP)

Sherman Harris v. State of Indiana (NFP)

Ngun Thang v. State of Indiana (NFP)

James R. Worthington v. State of Indiana (NFP)

Brian Williams v. State of Indiana (NFP)

Larry A. Hellyer v. State of Indiana (NFP)

Eric Leo Armstrong, IV v. State of Indiana (NFP)

Posted by Marcia Oddi on January 29, 2009 10:59 AM
Posted to Ind. App.Ct. Decisions

Courts - James Bopp asks Calif. federal judge to stop disclosure of names of Prop 8 donors

Terre Haute attorney James Bopp was featured this morning in a story on NPR's Morning Edition. Read or listen to it here.

Posted by Marcia Oddi on January 29, 2009 08:50 AM
Posted to Courts in general

Ind. Courts - "County's protective order projects starts"

Diane Krieger Spivak reports today in the Gary Post-Tribune in a story that begins:

CROWN POINT -- Lake County's four domestic violence courts are getting more requests than ever for protective orders, officials say.

But the 9-page documents often arrive at the judge's bench incomplete or incorrectly filled out. In some cases, they don't arrive at all because victims often are too traumatized to complete paperwork.

To alleviate the problem and protect as many victims as possible, the Lake County Sheriff's Department's Domestic Violence Task Force is partnering with the Indiana Coalition Against Domestic Violence and local shelters to launch the Protective Order Project.

For three hours this morning, ICADV's legal director Kerry Blomquist will train volunteers to help domestic violence victims complete the often daunting forms. The Sheriff's Department is videotaping the session and will distribute copies to area shelters, said Patti Van Til, co-chair of the Domestic Violence Task Force.

"Domestic violence is a serious problem in Lake County," said Van Til, an administrative deputy chief for the Sheriff's Department. "It's an ever-present issue."

A protective order is a document, signed by a judge, that prohibits contact between specific parties. Besides being daunting, directions for the application can be very intimidating because they call for a description of the abusive actions against victims, Van Til said.

"Revisiting that can be very emotional," she said.

Posted by Marcia Oddi on January 29, 2009 08:46 AM
Posted to Indiana Courts

Environment - "IDEM director gets statehouse grilling"

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

State Department of Environmental Management Commissioner Thomas Easterly faced a barrage of questions Wednesday from legislators convinced changes at the agency will make it tougher to protect Hoosiers from environmental lawbreakers.

Testifying before the House Environmental Affairs Committee, Easterly defended decisions to shutter IDEM's enforcement office and cancel local air monitoring contracts in Gary, Hammond and elsewhere.

The new set-up will make the department more efficient and accountable, Easterly said, while saving about $1.5 million annually.

IDEM announced recently that the local air quality contracts would be canceled effective March 31. Hammond will lose roughly $282,000 in 2009, Gary about $18,000.

IDEM inspectors will do the air quality inspections at businesses currently completed by local employees, Easterly said.

"This will eliminate the duplication of services," he said. * * *

But Rep. Ryan Dvorak, D-South Bend, argued most of the money saved would come in the form of grants which could not in any case be applied to the state's bottom line.

"This is just sort of an accounting trick, then, to satisfy state accountants," Dvorak said.

And Rep. Mara Candelaria Reardon, D-Munster, told Easterly the legislature appropriated the money so IDEM would use it. "I don't think the intent, when the budget was drafted, was to give IDEM a cushion of cash flow," Candelaria Reardon said.

Easterly also faced criticism from Democrats about the decision to fold the agency's enforcement office into its air, water and land divisions.

The commissioner insisted he's trying to speed responses to truly important environmental violations, while working with businesses that have made small mistakes to quickly become compliant.

He said there has been no improvement in the rate of environmental compliance under the current system over the past four years.

But Dvorak said the inevitable impression is that IDEM plans to take it easier on businesses breaking environmental law.

"It can sort of be read that too many people were getting fined," he said.

A recent change in IDEM's definition of the most serious class of violations also drew fire from the committee.

Patrick Guinane of the NWI Times reports under the headline "State environmental chief defends agency shakeup." Some quotes:

Indiana's chief environmental regulator assured skeptical lawmakers Wednesday that decentralizing his agency's enforcement division and ending partnerships with Gary, Hammond and other cities won't make it easier to befoul the Hoosier state.

Thomas Easterly, commissioner of the Indiana Department of Environmental Management, told a state House panel that compliance with pollution permits for power plants, refineries and other facilities has stagnated at 93.5 percent the past four years. So last fall he initiated a plan to eliminate IDEM's stand-alone enforcement division and move those regulators into compliance divisions for air, land and water quality.

"We have to shake up the system," Easterly said. "We're going to do exactly the same monitoring ... and all the people who violate will still go through enforcement."

Easterly said the move should improve communication between compliance staff who monitor permit holders and the enforcement officers who levy fines and other punishments. But the testimony failed to sway some lawmakers.

"I just didn't think any of his rationale was acceptable," said Rep. Mara Candelaria Reardon, D-Munster. "You can develop a structure with the enforcement division that works. Make your deputies accountable. You're in charge."

Easterly said half of the U.S. Environmental Protection Agency's 10 regional offices handle enforcement in the manner the state plans to adopt. IDEM plans to meet with the EPA's Chicago office to discuss the change.

Legislators also questioned IDEM's decision to suspend about $2.5 million in annual recycling grants to local agencies, a move Easterly contends is necessary amid a state budget crunch and a declining market for recyclable materials.

IDEM also in December canceled $2 million in annual air monitoring contracts with Anderson, Evansville, Gary, Hammond, Indianapolis and Vigo County. Easterly said IDEM believes it can handle the work for $500,000 a year, but local officials say the move will result in less oversight.

Posted by Marcia Oddi on January 29, 2009 08:32 AM
Posted to Environment | Indiana Government

Ind. Decisions - Still more on: Upcoming oral arguments this week

Remember, three oral arguments before the Supreme Court this morning, beginning at 9 AM.

Here is the ILB preview from Monday, and here are links to briefs in two of the cases.

To paraphrase some comments a reader has sent about the cases:

Mosley involves the issue of what should appointed counsel do when the issues on appeal are not strong? The court of appeals has encouraged Anders briefs, but will, or should, the supreme court go that way?

Henri involves important issues surrounding communications during jury deliberations. It may be a lively argument with questions about confiscating cell phones during deliberations, especially now that phones can do so much more. It will affect civil and criminal cases.

Posted by Marcia Oddi on January 29, 2009 07:50 AM
Posted to Upcoming Oral Arguments

Wednesday, January 28, 2009

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

For publication opinions today (2):

In Dale Redmond v. State of Indiana , a 7-page opinion, Judge Vaidik writes:

A decade after he was sentenced to consecutive sentences under the same cause number (and soon after he began serving his second sentence), Dale Redmond filed a motion to modify his second sentence pursuant to Indiana Code § 35-38-1-17(a). The trial court denied the motion, and Redmond appeals. Concluding that Indiana Code § 35-38-1-17(a) requires a defendant to file a motion to modify within 365 days after he begins serving the entire sentence imposed him (and not individual sentences under the same cause number) and the triggering date is the date the trial court imposes the sentence, we affirm the trial court. * * *

We find the amendment of Indiana Code § 35-38-1-17(a) in 2005 to include the term “imposed” to be critical. The term “impose” was contained in the 1983 version of the statute, not contained in the 1995 version at the time Liggin was decided (and found to be dispositive in that case), and then added back in 2005. When construing a statute, we presume the legislature was aware of any court decisions upon the subject matter of the legislation being construed. See Holmes v. Jones, 719 N.E.2d 843, 848 (Ind. Ct. App. 1999). As such, when reading the current version of Indiana Code § 35-38-1-17(a), we conclude that the introductory clause, within 365 days after a convicted person begins serving the sentence imposed on him, means within 365 days after a convicted person begins serving the entire sentence imposed on him (and not individual sentences under the same cause number), the court may reduce or suspend his sentence. The triggering date is the date the trial court imposes the sentence.
[See ILB comment at the end of this entry]

In Patrick Ryan v. State of Indiana , a 10-page opinion, Judge Darden writes:

Patrick Ryan appeals the trial court’s order denying his petition for expungement of the record of his arrest for one count of child molesting, as a class C felony. We reverse and remand. * * *

The statute provides that the “individual may petition the court for expungement of the records related to the arrest” when the individual was arrested but no criminal charges were filed, or when “all criminal charges filed against [the] individual [we]re dropped because of a mistaken identity; no offense was in fact committed; or there was an absence of probable cause.” Ind. Code § 35-38-5-1. Ryan was arrested and charged with child molesting, but the criminal charge was “dropped,” id., or dismissed, after the alleged victim’s statements to her mother and to a CPS worker were found unreliable and held to be inadmissible at trial. Thus, the statute authorized the filing of Ryan’s verified petition for expungement. * * *

In sum, the language of the statute unambiguously authorizes the summary denial of a petition only in limited circumstances, which are reflected by trial court findings in that regard. See I.C. §35-38-5-1(d)(3). Here, the trial court made no such determination on Ryan’s petition. Therefore, the trial court was required to set a hearing on the matter. Reversed and remanded.
RILEY, J., concurs.
VAIDIK, J., concurs in result with separate opinion.

NFP civil opinions today (1):

Tammy L. Stewart v. Aydrian J. Howard (NFP) - "Because we find that the
trial court properly excluded the spinal surgeon’s opinions and diagnoses and that
Tammy has failed to show any actual bias or prejudice, we affirm the trial court. "

NFP criminal opinions today (1):

Sidney Tolbert v. State of Indiana (NFP)
_______________

ILB comment on Redmond v. State. The Court writes:

We find the amendment of Indiana Code § 35-38-1-17(a) in 2005 to include the
term “imposed” to be critical.

Here is PL 2-2005 (HEA 1398), SECTION 123, setting out the amendment. SEC. 123 begins on p. 98.

What is confusing to me is that this is a Code Correction Bill. A correction bill is introduced at the beginning of each session to correct technical errors made in the last session - typos, reconciling where two laws amended the same section, etc. Scroll though the act and you will see that.

Code correction bills never make substantive change. Yet there is no clue as to where the "technical" changes made to IC 35-38-1-17 came from. What error are they intended to remedy?

A look at the history line for the current version of IC 35-38-1-17 reads:

As added by P.L.311-1983, SEC.3.
Amended by P.L.317-1985, SEC.1;
P.L.204-1986, SEC.1;
P.L.240-1991(ss2), SEC.92;
P.L.291-2001, SEC.224;
P.L.2-2005, SEC.123.

I've also looked up the 2001 amendment, and it does not appear relevant, as it does not affect subsection (a). Find it here: PL 291-2001 (HEA 1001), SECTION 224. (Find it on p. 227.)

Posted by Marcia Oddi on January 28, 2009 01:03 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "St. Joseph County Probate Judge to issue pay raises despite council's objections"

So reads the headline to this story by Troy Kehoe from WSBT TV Mishwaka. Some quotes from the lengthy story:

A new budget battle is underway over pay raises for St. Joseph County employees. Last year, the County Council mandated a pay freeze for all county employees, as it tried to fill a $6 million loss in revenue. But, one department head has now issued his own mandate, saying his employees will get raises in 2009.

Notice of an impending "mandate" from St. Joseph County Probate Court Judge Peter Nemeth was given to the County Council during a series of committee meetings Tuesday night.

Judge Nemeth also oversees St. Joseph County's Juvenile Justice Center.

In the letter, Nemeth calls the Council's "refusal to permit raises, unjust, unfair and discriminatory." * * *

Under Indiana law, judges can "mandate" the amount of money they need to "operate their courts sufficiently." But, ultimately, their budgets are set by the County Council, and approved by County Commissioners.

"Courts are kind of subject to the fiscal bodies," Nemeth said. "We are a separate branch of government, but we do need to have sufficient funds to be able to operate. And the law provides that -- if we do not receive those funds, or feel we're not receiving those funds -- we have the right to issue mandate proceedings."

For several years, Judge Nemeth says he's stopped short of issuing similar mandates, in part, because the County Council appropriated the funded he'd asked for in recent budgets. But, several times, he says the proposed pay raises included in it were vetoed by County Commissioners.

"Because of that, most [Probate Court employees] have gone -- at least 3 years minimum -- some of them as many as 5-6 years without getting a pay increase," Nemeth said.

Nemeth's proposed mandate would change that; boosting Probate Court employees' pay by a total of $60,208. Including fringe benefit costs, Nemeth estimates the total cost to be around $79,000. Pay would be "retroactive" to January 1, 2009.

Posted by Marcia Oddi on January 28, 2009 12:54 PM
Posted to Indiana Courts

Courts - "Ky. court will hear appeal by Amish: Safety triangles at issue in case "

Updating this ILB entry from Nov. 18, 2008, Peter Smithof the Louisville Courier Journal reports today:

The Kentucky Court of Appeals has agreed to hear the appeal of three Amish men who were convicted in Graves County last year for failing to use bright safety emblems on their horse-drawn buggies.

The court will hear their claim that their religious beliefs -- which oppose the use of bright colors and "worldly" symbols -- are being violated by a state law requiring orange-red triangles on slow-moving vehicles.

"I'm very pleased that they've decided to look into this matter," said Murray attorney Robin Irwin. He is representing Jacob Gingerich, Emanuel Yoder and Levi Zook, who were each assessed $148 in fines and court costs at last February's trial.

Graves Circuit Court Judge Timothy Stark later upheld their convictions, ruling that the law didn't violate their religious freedom because it was "generally applicable" to all users of slow-moving vehicles and "not aimed at particular religious practices."

In November, seven Amish men were convicted on a total of 10 counts in a Graves District Court trial. Their attorney is seeking a review in Graves Circuit Court. * * *

The Swartzentrubers say they're willing to use lanterns and white reflective tape that outlines the rear of their buggies, rather than forming a symbolic shape. They believe relying on a manmade symbol such as a triangle conflicts with trusting in God alone for their safety. Their modesty code also prohibits the use of bright colors.

Irwin argues that under the religious-freedom clauses of the U.S. and Kentucky constitutions, the state has to accommodate such alternatives.

Stark's ruling disagreed. He cited a U.S. Supreme Court ruling saying any person could "become a law unto himself" by challenging any regulation on religious grounds.

In 1985, a Barren District Court judge acquitted a Swartzentruber man on a similar charge, saying his religious beliefs took priority over the state's law, but that case is not binding on other counties' courts.

Pennsylvania and Minnesota courts have also ruled in favor of Swartzentrubers in similar cases on the basis of their state constitutions, according to attorney William Sharp of the American Civil Liberties Union of Kentucky, who represented defendants in the November trial.

Posted by Marcia Oddi on January 28, 2009 10:00 AM
Posted to Courts in general

Courts - More on "Justices’ Ruling in Discrimination Case May Draw Quick Action by Obama"

Updating this ILB entry from Jan. 5th, Robert Pear of the NY Times reports:

Congress gave final approval on Tuesday to a civil rights bill providing women, blacks and Hispanics with powerful new tools to challenge pay discrimination in the workplace. It is likely to be the first significant legislation signed by President Obama.

The 250-to-177 vote in the House came five days after the Senate passed the bill, 61 to 36.

The bill, named for Lilly M. Ledbetter, a longtime supervisor at a Goodyear tire plant in Alabama, would make it easier for workers to win lawsuits claiming pay discrimination based on sex, race, religion, national origin, age or disability.

See also this story by Amy Goldstein of the Washington Post. A quote:

Under the bill, workers may bring a lawsuit for up to six months after they receive any paycheck that they allege is discriminatory. The high court had held that such cases could be brought only within six months of the discrimination's beginning, rejecting a long-held interpretation by lower courts and the U.S. Equal Employment Opportunity Commission that each paycheck represented a fresh act of discrimination.

Posted by Marcia Oddi on January 28, 2009 09:49 AM
Posted to Courts in general

Legislative Benefits - More on "Transparency bills get no respect"

The Fort Wayne Journal Gazette has an editorial today on the new lobbying career of former state Senate leader Robert Meeks. A quote:

Senate Bill 15, sponsored by Sen. Patricia Miller, R-Indianapolis, would ensure that the influence of former lawmakers would at least be tempered. It would establish a one-year limit before a legislator could lobby before the General Assembly.

Its chances for passage, sadly, are poor. It’s been assigned to the Rules Committee, where legislation frequently goes to die.

Meeks, a LaGrange Republican, joined Boyle & Associates within weeks of stepping down from his powerful Senate post. The firm is directed by a close associate of former Senate President Pro Tem Robert Garton.

Meeks has always demonstrated great integrity as a public servant, and this page doesn’t doubt that he would continue to do the same as lobbyist. The lobby registration form he filed discloses multiple issues he might be lobbying on, including the budget, economic development, property taxes and alcoholic beverages. In the 2008 session, his new employer lobbied on behalf of Indiana Public Broadcasting, Harrah’s and Central Indiana Ethanol.

Meeks joined an ever-growing collection of lawmakers-turned-lobbyists: John Gregg, Thomas Fruechtenicht, Matt Whetstone, Michael Smith, Mike Phillips, Sam Turpin, Pat Kiely, Robert Kuzman and Paul Mannweiler, among others.

“Again, it’s just one more reason to do something this year,” said Julia Vaughn, policy director for Indiana Common Cause.

Posted by Marcia Oddi on January 28, 2009 09:41 AM
Posted to Legislative Benefits

Ind. Courts - "Clark County contracts collections for docket fees"

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

Clark County officials hope to collect more than $800,000 in past-due child support docket fees by contracting out collections.

Records show the county is owed more than $1.3 million in docket fees, but that number is probably not accurate, circuit and superior court Clerk Barbara Haas said. The Indiana Support Enforcement Tracking System’s records include duplicate fees and other inaccuracies that will drive the collectable figure down.

Between $850,000 and $900,000 could be collected, which will go to the county’s general fund, Haas said.

Individuals ordered to pay child support are required to pay support docket fees to cover administrative costs incurred by the courts. These fees are owed directly to the county in addition to the amount owed to the custodial parent.

To collect those fees, the county has contracted Eagle Accounts Group LLC. Eagle Accounts will charge a 30 percent collection fee in addition to the docket fee charged by the county. The county is paying Eagle nothing up front for this service, Haas said.

Docket fees owed to the county range between $30 and $220 per person, Haas said.

“None of these are large amounts,” Haas said. “There’s just a large number of them.”

Eagle Accounts will contact those who owe docket fees to the county by mail, according the to the company’s Web site.

Despite the fact that these fees could be as much as 10 years old, Eagle Accounts does not report individuals with delinquent docket fees to national credit bureaus until at least 30 days after notice is sent, according to the company’s Web site.

Posted by Marcia Oddi on January 28, 2009 09:37 AM
Posted to Indiana Courts

Ind. Courts - "'Appeals on Wheels' rolls law, public speaking into one lesson"

Yesterday a Court of Appeals panel heard oral arguments in the case of Michael W. George vs. State of Indiana. Today Sophia Voravong reports on the event in this story and photo in the Lafayette Journal Courier. A quote:

About 500 people, among them members of the Tippecanoe County Bar Association and students from West Lafayette and Central Catholic, packed into the auditorium at West Lafayette Jr.-Sr. High School to watch the hourlong oral argument.

Stemming from an appeal out of Shelby Superior Court, the case dealt with a man, Michael W. George, who was arrested and subsequently convicted for possession of a controlled substance after he initially was stopped for speeding.

George, whose driver's license was suspended, had his vehicle impounded, and morphine pills were found inside.

His attorney, Stephen Gray, argued Tuesday that the inventory search was unconstitutional and that the trial court erred by admitting the pills into evidence.

Deputy Attorney General Mellisica Flippen countered that the search was legal under both the Indiana and U.S. constitutions and necessary for liability should George counter that items in the vehicle were missing.

An opinion on the case has not yet been issued by the appeals court.

But afterward, judges John Baker, Margret Robb and Cale Bradford, along with Gray and Flippen, answered questions from the audience.

Posted by Marcia Oddi on January 28, 2009 09:30 AM
Posted to Ind. App.Ct. Decisions

Tuesday, January 27, 2009

Law - ABA Journal has a special recession issue

Access it here.

And the new February issues features Abraham Lincoln, Esq. Access it here.

Posted by Marcia Oddi on January 27, 2009 03:15 PM
Posted to Courts in general

Ind. Decisions - More on: Upcoming oral arguments this week [Updated]

Supplementing this ILB entry from Monday, the ILB is pleased to report it will be able to post briefs for some (or all) of this week's Supreme Court arguments. Check back for later docs.

Case	Transfer petition	Response	Reply
Bailey v. State	---	---	---
Mosley v. State	Link	---	Link
Henri v. Curto	Link	Link	Link

Posted by Marcia Oddi on January 27, 2009 12:29 PM
Posted to Upcoming Oral Arguments

Ind. Law - "Stalking called underreported, high-tech crime"

Diane Krieger Spivak had this report yesterday in the Gary Post-Tribune. It is based on a new report, Stalking Victimization in the United States, from the DOJ Bureau of Justice Statistics.

Posted by Marcia Oddi on January 27, 2009 12:19 PM
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Alicia Bonilla v. Commercial Services of Perry, Inc., et al, a 17-page, 2-1 opinion, Chief Judge Baker writes:

Appellant-defendant Alicia Bonilla (Alicia) appeals the trial court’s judgment in favor of appellee-plaintiff Commercial Services of Perry, Inc. (“Perry”), as successor in interest to the Federal Deposit Insurance Corporation, which was the successor in interest to Industrial National Bank. Alicia raises a number of arguments, which we restate as follows: (1) the trial court’s judgment that Alicia is liable for the mortgages in question is clearly erroneous, and (2) the trial court’s order of damages pursuant to the promissory notes is clearly erroneous. Finding no error, we affirm. * * *

Notwithstanding the absence of evidence regarding the specific terms of the promissory notes, the record does contain undisputed evidence establishing the terms, dates, amounts of, and interest rates on the two mortgages. Additionally, Alicia conceded that no payments have been made on these mortgages since they were executed over twenty years ago. Although we do not have the precise terms of the promissory notes in the record, the only reasonable inference to draw from this evidence is that the failure to make a single payment on the notes in over twenty years is an event of default. It would be erroneous to draw any other conclusion. Having drawn that conclusion, the only remaining task is calculating the amount owed by Alicia based on the undisputed numbers in the record. Inasmuch as the parties raise no argument about the trial court’s calculation, we affirm.

MATHIAS, J., concurs.
BROWN, J., concurs in part and dissents in part with opinion:

I respectfully concur in part and dissent in part. I concur with the majority’s analysis and determination of the first issue, namely that Bonilla is liable under the mortgages. As to the second issue, I dissent, finding that Perry failed to prove default under the terms of the notes. * * *

Here, evidence on the essential terms is missing. Specifically, no evidence was presented on the terms of the promissory notes, the payment requirements, or what constituted an event of default. Were the notes due in one year? Were they due in ten years? Were they due in 30 years? Although the majority infers default because Bonilla testified that no payments had been made, without the terms of the notes and the payment requirements, I am unable to agree that the evidence presented proved that the loans are in default.

In Robert L. Young d/b/a Bob Young Lodging v. Glen Marling , a 15-page opinion, Judge Vaidik writes:

Robert Young, doing business as Bob Young Logging (“BYL”), appeals from a decision of the full Worker's Compensation Board (“the Board”) affirming the single hearing officer's decision that Glen Marling is entitled to reimbursement for certain medical treatments he received after an injury arising out of and in the course of his employment with BYL. Specifically, BYL argues that the Board's decision is erroneous because Marling is not entitled to reimbursement under the Indiana Worker's Compensation Act (the Act) because the treatments were unauthorized and the findings of fact and conclusions of law are insufficient to support the conclusion that Marling is entitled to reimbursement for these treatments. Because we find that the medical treatments were authorized by a physician chosen by BYL's insurance carrier and that the Board?s findings of fact and conclusions of law are sufficient to support the award, we affirm.

In Emmanuel Stringer v. State of Indiana , an 8-page, 2-1 opinion, Judge Riley writes:

Stringer raises one issue on appeal, which we restate as follows: Whether the trial court erred when it accepted Stringer’s counsel’s stipulation to a prior conviction which established the basis for the enhanced offense of auto theft without first determining that Stringer’s stipulation was made voluntary and intelligently. * * *

Stringer’s challenge to the knowing and voluntary nature of his plea due to the inadequacies of the trial court’s advisements to him cannot be undertaken on direct appeal. Instead, the supreme court has created an avenue for claims addressing the validity of guilty pleas by adopting Indiana Post-Conviction Rule 1 which provides that “post-conviction relief is exactly the vehicle for pursuing claims for validity of guilty pleas.” Tumulty, 666 N.E.2d at 396. Therefore, Stringer can seek a review of his guilty plea only by filing a petition for post-conviction relief.

Based on the foregoing, we conclude that a direct appeal is not the appropriate avenue for Stringer to challenge the validity of his plea of guilty to the enhancement charges against him. Accordingly, his convictions are affirmed.

DARDEN, J., concurs.
VAIDIK, J., dissents with separate opinion [which begins] I respectfully dissent from the majority’s conclusion that Stringer pled guilty to the enhancement of his auto theft conviction from a Class D felony to a Class C felony based on his previous conviction for auto theft. Rather, I believe that Stringer stipulated to the admission of the certified copy of his prior conviction for auto theft and that, based on this evidence, the trial court found him guilty of the enhancement. As such, Stringer has properly brought this direct appeal, and I would affirm the trial court.

NFP civil opinions today (1):

Simon Fire Equipment & Repair, Inc. v. Town of Cloverdale, Indiana (NFP) - "The sole issue for our review is whether the trial court erred in entering judgment in favor of the Town. * * *

"After discussing the financing, the Council passed a restated motion “to accept the bid of Simon for the 2001 demo truck . . . subject to favorable financing after sitting down with financial advisors and making sure that the Town is comfortable with the financial arrangements.” * * * The Council notified Simon that it would accept its bid, subject to the favorable financing. * * *

"Simon does not challenge the trial court's findings. Rather, Simon?s sole contention is that the trial court's findings do not support its conclusions. Specifically, Simon argues that the “decision not to buy the fire truck had nothing to do with the availability of favorable or comfortable financing; the Town merely decided not to buy the fire truck and rejected the available financing package.” * * *

"Vickroy and Sublett both testified that even though the financial package was favorable, they were not comfortable with the financial impact of the truck purchase on the financial health of the Town. This evidence supports the trial court's conclusion that the Town was not comfortable with the financing. Because this condition precedent was not fulfilled, the trial court did not err in granting judgment in favor of the Town. Affirmed."

NFP criminal opinions today (7):

Calvin Johnson v. State of Indiana (NFP)

Robert Hardesty v. State of Indiana (NFP)

Daniel Wasden v. State of Indiana (NFP)

Howard Howe v. State of Indiana (NFP)

Kenneth A. Neal v. State of Indiana (NFP)

Damien Pace-Anders v. State of Indiana (NFP)

Orlando Dillard v. State of Indiana (NFP)

Posted by Marcia Oddi on January 27, 2009 10:45 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "City water and sewer contracts to be put up for bid"

The ILB has had numerous entries over the no-bid sewer controversy in New Albany. Today Jimmy Nesbitt reports in the Evansville Courier & Press in a story that begins:

Contracts to manage Evansville's water and sewer systems will be bid publicly this year — the first time since 1992.

Mayor Jonathan Weinzapfel said Monday the city will issue requests for proposals to manage the water and sewer systems in June. A new utility agreement could be in place by the end of the year, he said. The sewer system currently is managed by Environmental Management Corp. American Water manages the water system. Their contracts historically have been renewed every five years.

Now that they will be publicly bid, the competition for the multimillion dollar contracts could be intense. The Environmental Management Corp. receives about $5 million annually and American Water about $6 million. Weinzapfel said the city also will consider managing the utilities, which serve roughly 60,000 customers.

Opening the contracts to a competitive bidding process could increase efficiency and reduce costs for both the city and utility customers, Weinzapfel said.

"I think it's important that we have that comparison, soliciting bids from a variety of companies that do this work, so we can compare and contrast," he said. "The companies will be able to bid on managing one or the other or both. And we want to compare those bids with what it would cost the city if it actually went back in house. ..."

Weinzapfel said the decision to seek public bids was not related directly to the performance of American Water and the Environmental Management Corp.

Posted by Marcia Oddi on January 27, 2009 08:16 AM
Posted to Indiana Government

Ind. Decisions - "Appeals court overturns 2007 rape conviction"

Last Friday's split Court of Appeals opinion in the case of Otho L. Lafayette v. State of Indiana (see ILB summary here, 2nd case) is the subject of a brief story today by Bill Dolan in the NWI Times. A quote:

The appeals court ruled 2-1 last week that 39-year-old Otho L. Lafayette was denied a fair trial when Criminal Court Judge Thomas P. Stefaniak Jr. permitted testimony that Lafayette was involved in prior sexual misconduct 10 years earlier.

Diane Poulton, a spokeswoman for the prosecutor's office, said Monday they will ask the Indiana attorney general's office to appeal the decision to the Indiana Supreme Court.

Posted by Marcia Oddi on January 27, 2009 08:04 AM
Posted to Ind. App.Ct. Decisions

Monday, January 26, 2009

Law - More on: Obama appoints Cass Sunstein as head of the Office of Information and Regulatory Affairs

Updating this ILB entry from Jan. 8th, Tom Hamburger and Christi Parsons of the LA Times report today in a lengthy article that explores concerns voiced by labor and environmental groups with the Sunstein appointment. A quote:

Few labor and environmental groups offered to comment on Sunstein's nomination. But one organization of liberal lawyers will publicly cast a stone at Sunstein today: The Center for Progressive Reform plans to release an 18-page review of Sunstein's work by member scholars expressing concern. [ILB - here is a copy]

"Professor Sunstein's long track record on regulatory issues is decidedly conservative. As longtime colleagues of Professor Sunstein who have debated him numerous times in a variety of settings, we write this paper to explain those concerns," the report says.

An advance copy of the report, signed by eight scholars from various universities, lists what they see as problematic positions taken by Sunstein, including his support for a controversial statistical approach that agencies include a "life expectancy" calculation when considering the cost of proposed regulations. * * *

The 2003 controversy grew to the point that Sen. Richard J. Durbin (D-Ill.) proposed outlawing the approach.

"The EPA should be creating regulations to protect everybody," Durbin said then. "However, now we are in the cost-benefit era. . . . The EPA is discounting the lives of senior citizens. Their lives are as important to them and to our nation as anyone else's life."

Then-EPA Administrator Christie Todd Whitman announced that the agency would no longer use the calculation.

Left-leaning lawyers are also critical of Sunstein for an academic paper he wrote titled, "Is OSHA Unconstitutional?" [ILB - here is a copy]

He concluded that the Occupational Safety and Health Administration probably was constitutional but that its approach to regulation needed to be modified to consider cost-benefit analysis.

Posted by Marcia Oddi on January 26, 2009 04:13 PM
Posted to General Law Related

Ind. Courts - Commission on Judicial Qualifications files charges against Judge Thomas Felts of Allen Circuit Court

From a release this afternoon by the Indiana Court:

The Indiana Commission on Judicial Qualifications filed charges against Judge Thomas Felts of Allen Circuit Court. Judge Felts is accused of violating the Code of Judicial Conduct during a July 2008 incident.

An investigation by the Commission shows that on July 18, 2008 Judge Felts was arrested in Marion County for Operating a Motor Vehicle with an alcohol content of at least .15, which is a misdemeanor. He was also arrested for public intoxication, also a misdemeanor. In August, Judge Felts plead guilty to the OWI charge and the state dropped the public intoxication charge. A judge sentenced Felts to one year in jail and suspended the sentence for the time served. Judge Felts was also ordered to serve one year probation, have his driver's license suspended for 90 days, and attend alcohol treatment.

The Commission has filed a “Notice of the Institution of Formal Proceedings and Statement of Charges” detailing the above events. The Commission has charged Judge Felts with two counts of judicial misconduct. Count One accuses Judge Felts of violating Canon 1A of the Judicial Code of Conduct which requires judges to uphold the integrity of the judiciary. Count Two accuses Judge Felts of violating Canon 2A, which requires judges to avoid impropriety at all times.

Judge Felts has the right to provide the Commission a written answer within 20 days. At that time, the Indiana Supreme Court will appoint three Masters to hold a hearing on the charges of misconduct. Supreme Court rules also allow for the Commission and the judge to reach a settlement agreement. Any settlement agreement or any decision reached by the Masters must be approved by the Indiana Supreme Court. The Indiana Supreme Court has final authority over all judicial discipline cases.

Here is a copy of the 4-page charging document.

For background, see this ILB entry from Aug. 21, 2008, and this list.

Posted by Marcia Oddi on January 26, 2009 01:40 PM
Posted to Indiana Courts

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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, February 05, 2009

Ind. Courts - "Logansport indecent exposure case dismissed again"

Environment - "Techniques that have dramatically reduced contamination at beaches in Racine, Wis."

Ind. Decisions - Tax Court decides one

Courts - Justice Ruth Bader Ginsburg undergoes surgery [Updated]

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

Ind. Gov't. - Yet more on: Issues continue with state's new welfare eligibility system

Ind. Gov't. - "Internet provider forces local agencies offline"

Wednesday, February 04, 2009

Ind. Decisions - Apparently none from the Court of Appeals today

Law - More on avoiding tax problems

Ind. Decisions - "Federal magistrate urges ban of schools’ faith study"

Ind. Gov't. - Still more on: Issues continue with state's new welfare eligibility system

Courts - More Indiana decisions cited in Coleman-Frankin Senate dispute

Ind. Courts - "Gwin takes over as Clarksville town judge"

Ind. Courts - “Think B4UDrive” DVD is the brainchild of Steuben Circuit Court Judge Allen Wheat

Tuesday, February 03, 2009

Ind. Decisions - More on: Transfer list for week ending Jan. 30, 2009

Ind. Courts - More on "IHSAA appealing Jasmine Watson ruling"

Ind. Decisions - "Two more jail lawsuits thrown out"

Ind. Decisions - Transfer list for week ending Jan. 30, 2009

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

Ind. Courts - "You can't arrest me, you're a referee"

Ind. Courts - "Crows invade Fulton Co. Courthouse trees"

Ind. Courts - Yet more on Vanderburgh Little Hatch Act cases

Ind. courts - "Hudson gets 60 years for abducting attorney"

Ind. Courts - Marion County reportedly suspends bench warrants for delinquent parents

Monday, February 02, 2009

Ind. Law - Can you rely on the Indiana Code? Where are we with the Indiana Code issues?

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

Ind. Decisions - More on Redmond v. State

Environment - "Pollution control at issue: Lawmakers push to reverse policy"

Ind. Gov't. - "Critics say FSSA offices fail to offer voter registration forms"

Ind. Law - Laws on littering, snow removal

Environment - "Hoosier streams still have high levels of mercury: Reduction in air emissions isn't reflected in water"

Ind. Law - This week at the General Assembly - Week 4 [Updated]

Legislative Benefits - "Revolving door spins out of control"

Ind. Decisions - Upcoming oral arguments this week

Sunday, February 01, 2009

Law - Yet more on "Kentucky Tests State's Reach Against Online Gambling"

Courts - Kentucky judge admonishes lawyers whose briefs contain personal attacks on one another

Environment - Yet more on: IDEM dissolves office of enforcement

Ind. Law - "Bill allows DNA from felony arrestees"

Ind. Law - Notre Dame students hear about alcohol and the law"

Ind. Law - "2 Indiana legislators want longer sentence for killing fetus"

Environment - Hazardous chemical and liquid fertilizer spills in the news

Saturday, January 31, 2009

Ind. Courts - Judicial Center's Legislative Update #3

Ind. Courts - More on "St. Joseph County Probate Judge to issue pay raises despite council's objections"

Environment - Leaking underground storage tanks force Muncie plaintiff out of his house

Courts - "Justices Step Closer to Repeal of Evidence Ruling"

Ind. Decisions - Transfers granted in two cases, including Papa John's Pizza case

Friday, January 30, 2009

Ind. Courts - Updating "LaPorte deputy prosecutor shot"

Courts - Rhode Island federal judge sprinkles opinion with links to songs

Law - "Billable Hours Giving Ground at Law Firms "

Ind. Decisions - Court of Appeals issues 6 today (and 22 NFP)

Courts - More on: James Bopp asks Calif. federal judge to stop disclosure of names of Prop 8 donors

Law - "U.S. To Unveil Used-Car Database"

Ind. Courts - "Marion County could have 3 death-penalty trials this year"

Law - "Dawn Johnsen, an IU law professor, is awaiting Senate approval"

Thursday, January 29, 2009

Courts - Still more on "Justices’ Ruling in Discrimination Case May Draw Quick Action by Obama"

Ind. Decisions - Court of Appeals issues 9 today (and 11 NFP)

Courts - James Bopp asks Calif. federal judge to stop disclosure of names of Prop 8 donors

Ind. Courts - "County's protective order projects starts"

Environment - "IDEM director gets statehouse grilling"

Ind. Decisions - Still more on: Upcoming oral arguments this week

Wednesday, January 28, 2009

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

Ind. Courts - "St. Joseph County Probate Judge to issue pay raises despite council's objections"

Courts - "Ky. court will hear appeal by Amish: Safety triangles at issue in case "

Courts - More on "Justices’ Ruling in Discrimination Case May Draw Quick Action by Obama"

Legislative Benefits - More on "Transparency bills get no respect"

Ind. Courts - "Clark County contracts collections for docket fees"

Ind. Courts - "'Appeals on Wheels' rolls law, public speaking into one lesson"

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