Thursday, March 05, 2009

Courts - "Reasonable or Discriminatory? The Peremptory Strike Conundrum"

Some interesting reading in the WSJ Law Blog today.

Posted by Marcia Oddi on March 5, 2009 10:33 AM
Posted to Courts in general

Ind. Law - "A little push to open door to public"

The Indianapolis Star has a second editorial today supporting SB 232. Some quotes:

As expected, the measure to put teeth into enforcement of open-records and open-meetings laws had its fangs filed down considerably in committee. Yet it still meets its essential purpose of imposing consequences on public servants who refuse to carry out their legal duty to let citizens know what their government is up to.

Headed to the House on the wave of a 49-0 vote by the Senate, the bill has several provisions to promote transparency.

The principal feature would allow judges to impose fines of up to $100 for the first violation and up to $500 for succeeding offenses after citizens have sued over denial of access to information and have won.

Originally, the bill sponsored by Sen. Beverly Gard, R-Greenfield, set a maximum fine of $1,000. Even the reduced penalties are a welcome improvement upon the current situation, in which neither the courts nor the state Public Access Counselor have any force to bring to bear on an agency or public official found in defiance of the law. * * *

The Indiana Association of Counties, for one, says the proposed law would be OK if individuals were spared and agencies took the punishment. That will be an issue in the House and may wind up as another compromise for the cause. That said, we would agree with Stephen Key, general counsel to the Hoosier State Press Association, that consequences are more compelling when they're personal.

There's still more value in SB 232. It calls for Web notices of meetings and would authorize the courts and the access counselor to review blotted-out parts of records that are released to requesters.

Those requesters, it bears repeating, are not the news media in the vast majority of cases. While self-interest may play its part in a newspaper's advocacy of open government, unaffiliated taxpayers seek help from the access counselor far more often than news-gatherers. It's the people who own those records and meeting rooms. They should have the clout to do more than politely knock to be let in.

Here is the Feb. 11th editorial.

Posted by Marcia Oddi on March 5, 2009 10:27 AM
Posted to Indiana Law

Environment - "Pick of the Chick" in the news again

Updating these two ILB entries on "Pick of the Chick," Alicia Gallegos of the South Bend Tribune reports today:

A St. Joseph County farm has made some progress toward waste disposal compliance, according to a state official, after decades of reportedly violating health requirements.

Pick of the Chick egg farm, 16901 Madison Road, was the subject of a January Tribune article reporting that the farm had received orders beginning in 1991 to build a system to collect wash water from eggs and chicken waste.

Despite repeated fines and orders by the Indiana Department of Environmental Management, the farm had never completely complied, according to Marc Nelson, St. Joseph County Health department environmental manager, and had for years allowed chicken waste to overflow into county ditches, streams and groundwater. * * *

Pick of the Chick's compliance was also a discussion subject at the most recent St. Joseph County Agricultural Advisory Board meeting.

Nelson told the board that since the recent Tribune article and a resulting editorial about the farm, IDEM officials have stepped up their regulation.

Nelson said IDEM has expressed embarrassment for the decades-long case of noncompliance and the lack of enforcement.

"A couple articles in the newspaper seemed to get action very quickly," Nelson told the board.

The Pick of the Chick case has since been reassigned to different case managers, he said, who seem to have a better commitment to regulating the issue. Nelson expressed his own confidence that if the issue is not soon resolved, the farm could actually be closed.

IDEM officials plan an upcoming joint inspection of the farm with the health department, according to Sneed, "to help the farm understand what they need to do."

Posted by Marcia Oddi on March 5, 2009 10:20 AM
Posted to Environment

Courts - "No Legal Shield in Drug Labeling, Justices Rule"

Updating yesterday's brief ILB entry on the Wyeth decision, here are some quotes from Adam Liptak's front-page story today in the NY Times:

The Supreme Court has been sympathetic in recent years to arguments that federal law should pre-empt state injury suits. Last year, in Riegel v. Medtronic, an eight-justice majority of the court ruled that many state suits concerning injuries caused by medical devices were barred by the express language in a federal law. Wednesday’s decision addressed implied pre-emption, a different legal standard.

Drug companies and other businesses, supported by the Bush administration, had hoped the Vermont case would establish broader protections. They relied not on express language in a statute enacted by Congress, as in Riegel, but on what might be implied from federal regulatory standards and policies — in this case, from the drug agency’s authority to approve drug labels.

Producers of goods as different as antifreeze, fireworks, popcorn, cigarettes and light bulbs have sought to take refuge behind federal oversight in recent years to fend off litigation. After Wednesday’s decision, those efforts are most likely to succeed if they are based on express language in a Congressional statute or a specific regulatory action that makes compliance with state requirements impossible.

The Times also has a story in the business section, by Barry Meier and Natasha Singer, headed "Drug Ruling Puts Devices in Spotlight." It begins:

An injured consumer can sue a drug maker — but not a medical device maker?

That seemed to be the contradictory result of a decision Wednesday by the Supreme Court, ruling that federal law does not protect drug companies from product liability suits in state courts.

In contrast, the Supreme Court ruled last year that federal law does bar such lawsuits against the makers of heart stents, artificial joints and other critical medical devices.

The discrepancy reflects the different legal issues in the two cases. But the fallout from Wednesday’s decision, legal experts said, could be considerable for drug and device makers alike.

Drug makers, for their part, may now face a flood of new lawsuits. They may also feel compelled to settle current litigation that would have been dismissed if the Supreme Court decision had gone their way.

Meanwhile, influential members of Congress plan to introduce a bill soon that would supersede last year’s Supreme Court device ruling, their aides say. If that legislation became law, injured people or their survivors would have the same right to sue device makers that the Supreme Court on Wednesday gave to people claiming injury or death from unsafe drugs.

The ILB has had a number of early entries, such as this one, about federal agencies, by regulation, attempting to override or preempt state laws -- stealth pre-emption. I'm unclear, however, about how or if they fit into the picture of the current decisions.

[More] Okay, this is right on point, according to an article today in the WSJ by Avery Johnson, Alicia Mundy and Jess Bravin, headed "Ruling Ripples Beyond Drug Firms ." Some quotes:

One of Wyeth's strongest arguments drew on a 2006 regulation in which the Bush administration declared that permitting product-liability suits conflicted with the FDA's role "as the expert federal agency responsible for evaluating and regulating drugs."

But Justice John Paul Stevens wrote in his majority opinion that the Bush position "is entitled to no weight." He wrote that the 2006 regulation was "inherently suspect," because it provided no evidence to support its position and gave neither states nor the public an opportunity to comment before it was issued.

The White House strategy to pre-empt state laws, which got under way in 2001, used agency regulations as a way to sidestep Congress, according to former Bush domestic policy adviser Jay Lefkowitz, who was a leader of the strategy. The policy had strong backing from the U.S. Chamber of Commerce and its Institute for Legal Reform.

In early 2005, The Bush Consumer Product Safety Commission issued a regulation barring state product-liability suits against mattress makers whose products catch fire. By the end of 2008, the administration had inserted pre-emption language into 50 different regulations from agencies including the Federal Railroad Administration, the Pipeline and Hazardous Materials Safety Administration, and the National Highway Traffic Safety Administration.

Mr. Lefkowitz said he and other officials working for Mr. Bush had believed the rule changes would be hard to undo. But the move to adopt some pre-emption outside the formal rule-making process may have backfired. Justice Stevens's harsh criticism may hold "significant implications for areas other than the regulation of prescription drugs," Mr. Lefkowitz said. It will make certain pre-emption cases "far more difficult to maintain," he said. * * *

The impact on each industry will depend on the specific laws governing it. A year ago, for instance, an 8-1 Supreme Court found that medical devices were exempt from state product-defect lawsuits as long as the manufacturer had complied with the FDA approval process. In that case, Congress had specifically pre-empted state regulation of medical devices, and implied that private suits under state law were also barred.

Posted by Marcia Oddi on March 5, 2009 07:56 AM
Posted to Courts in general

Ind. Decisions - More on: Transfer list for week ending Feb. 27, 2009

Updating this ILB entry from March 2nd ....

The entry noted: "Notable among the cases not granted transfer was LHT Capital, LLC v. Indiana Horse Racing Comm., et al."

Two more cases denied transfer last week should be noted.

The first would be Bruce Herdt, et al v. City of Jeffersonville -- the denial was the subject of a story today in the Louisville Courier Journal, reported by Ben Zion Hershberg. Some quotes:

Ending an 18-month battle, the Indiana Supreme Court has declined to take up a lawsuit challenging the biggest part of Jeffersonville’s bid to annex more than 7,800 acres and 9,000 people in Clark County.

Supporters and opponents of the takeover of the Oak Park Conservancy southeast of Allison Lane said today the decision ends the case.

“The annexation is complete,” said Larry Wilder, lawyer for the City Council.

Bruce Herdt, a leader of opponents, agreed the court battle is over.

“I’m disappointed we never got to court, because I truly believe the evidence we had” would have convinced a judge to stop the annexation, he said.

The challenge was based on opponents’ belief that Jeffersonville consultants undercounted the number of households in Oak Park by about 40 percent, leaving the plan to pay for providing municipal services to the area seriously underfunded.

But the challenge was rejected by Clark County Circuit Court and the Indiana Court of Appeals because the signatures of residents required to fight the annexation were filed two days after the lawsuit—and after the deadline for filling the challenge.

The second would be IDEM v. Steel Dynamics. I'll have more about that later this morning.

Posted by Marcia Oddi on March 5, 2009 07:26 AM
Posted to Indiana Transfer Lists

Wednesday, March 04, 2009

Ind. Courts - "Terre Haute Lawyer Arrested for Drunk Driving Again"

Jon Swaner reports at MyWabashValley.com:

A Terre Haute attorney previously arrested for drunk driving was arrested by police once again for the same crime.

William Earls also failed to appear at his hearing in front of a judge.

Early Saturday morning, West Terre Haute police arrested attorney William Earls for driving while intoxicated. Earls not only failed field sobriety tests, the police report also indicates he was twice the legal limit.

During his court appearance on Tuesday, the judge said Earls initially made it to his hearing set for Monday, but he left and never returned.

That forced the judge to issue a warrant for Earls' arrest.

Terre Haute police caught up with his just after 9 p.m. Monday.

Earls offered no comment as he walked to court Tuesday afternoon. His most recent arrest is his second OWI in a year and a half. * * *

It's unclear at this time how Earls' latest arrest will impact his legal career. What we do know is that Earls faces stiffer charges now that he did back in 2007. The prosecutor's office charged Earls with a felony since this was his second OWI within a five year time frame.

The Indiana Disciplinary Commission also told us he likely faces additional discipline from the state Supreme Court. * * *

After his 2007 drunken driving arrest, the state Supreme Court disciplined Earls the following year. In the complaint filed by the Disciplinary Commission, they claimed Earls admitted to drinking six beers while awaiting a trial verdict to a murder trial in which he was prosecuting in Vigo County. That happened back on August 10, 2007. The commission also cited the October 22, 2007, accident that led to Earls’ arrest.

The Supreme Court suspended earls for 180 days, however they stayed the suspension, and placed him on 24 months probation. That probation period was to begin once Earls completed his criminal probationary period on November 13 of last year. The court further said if Earls violates his probation, the commission will not only move to revoke his probation, but also asked he serve his suspension without automatic reinstatement.

Earls has been entered into the jail linkage program, which is a six-week program with Hamilton Center. He will remain jailed for the duration of that program. Judge Michael Rader recused himself from the case, and a special judge will have to set a hearing date for the new charge.

Here are several earlier ILB entries on Mr. Earls.

Posted by Marcia Oddi on March 4, 2009 02:22 PM
Posted to Indiana Courts

Law - Various gay marriage issues in the news

(1) California's Prop. 8 challenge will be argued before the California Supreme Court tomorrow. Maura Dolan of the LA Times has a story headed "California Supreme Court may reveal stance on Prop. 8 on Thursday". Some quotes:

The California Supreme Court may reveal Thursday whether it intends to uphold Proposition 8, and if so, whether an estimated 18,000 same-sex marriages will remain valid, during a high-stakes televised session that has sparked plans for demonstrations throughout the state.

By now, the court already has drafted a decision on the case, with an author and at least three other justices willing to sign it. Oral arguments sometimes result in changes to the draft, but rarely do they change the majority position. The ruling is due in 90 days. * * *

"It is one of the most important cases in the history of the California Supreme Court," said Mark Rosenbaum, legal director of the ACLU of Southern California. "The core tenet of our constitutional democracy is that fundamental rights of historically disadvantaged minorities are not dependent on the whim of the majority."

The challenges to the initiative are based on novel legal theories. Gay rights lawyers argue that the measure was an illegal constitutional revision, rather than a more limited amendment. The court has struck down constitutional amendments passed by voters as impermissible revisions only twice in its history, and there are relatively few precedents on the subject.

"While no case forecloses the revision argument, there is no case that really supports it, and most of the cases mildly cut against it," said UC Davis law professor Vikram Amar.

Upholding existing same-sex marriages would be a lower hurdle for the court, Amar and other scholars said.

"There is enough ambiguity in Prop. 8 that the court could easily interpret the measure as not applying to existing marriages," Amar said. "That is a legally plausible interpretation, and it is so clearly the just interpretation that I think getting four votes for that seems easier."

State Atty. Gen. Jerry Brown's office will ask the court to uphold the marriages and strike down the initiative as an illegal repeal of an inalienable right without compelling justification. Brown's argument is even more novel than the revision challenge, which his office said had no merit.

The Proposition 8 case has attracted more friend-of-the-court briefs than the marriage dispute that led to last year's historic ruling -- the previous record-holder. Most of the outside groups that have weighed in have asked the court to overturn the initiative.

The San Francisco Chronicle has a "viewer's guide":

How to watch: The hearing is scheduled from 9 a.m. to noon at the court's chambers at 350 McAllister St. in San Francisco. It can be viewed live on the California Channel, which is carried on Comcast cable systems in the Bay Area. The channel number varies from city to city, so check local listings.

-- A group favoring same-sex marriage will sponsor a public viewing of the oral arguments on a JumboTron in San Francisco's Civic Center Plaza.

-- A live Webcast will also be available at www.calchannel.com.

Opponents: Lawyers for two groups of same-sex couples challenging Prop. 8 will have 30 minutes each to present their case. The city of San Francisco, representing local governments opposing Prop. 8, will also have 30 minutes.

Proponents: Kenneth Starr, representing Protect Marriage, sponsor of Prop. 8, will have one hour.

Attorney general's office: Attorney General Jerry Brown's office will have 15 minutes for arguments that Prop. 8 is unconstitutional because it denies fundamental rights to a minority group. His office also will have 15 minutes, however, to counter Prop. 8 opponents' arguments that the measure is an invalid revision of the state Constitution and a violation of separation of powers.

(2) Same-sex unions with federal status.Two writers, David Blankenhorn and Jonathan Rauch, published an op-ed in the Feb. 21st NY Times headed "A Reconciliation on Gay Marriage." It is described as "A federal compromise on the issue of gay marriage that could satisfy both sides in the short run.." NPR's Talk of the Nation for March 2nd has a 17-minute discussion on the proposal.

(3) "Same-sex spouses sue federal government: Legally married couples say they suffered injustices under the Defense of Marriage Act, which deprives them of benefits accorded others." That is the headline to this story today, by Carol J. Williams, in the LA Times. It begins:

Saying they suffered injustices under the Defense of Marriage Act, a dozen legally married same-sex spouses filed suit against the federal government Tuesday, alleging that the 1996 law deprives them of a range of benefits accorded other couples.

The suit filed in Boston by the Gay & Lesbian Advocates & Defenders, or GLAD, challenges a section of the federal law denying gay couples access to more than 1,000 federal programs and legal protections in which marriage is a factor.

Legal analysts predicted it will be years before the suit makes its way through the federal court system, but said they believed it had a good chance of eventually leading to the invalidation of the act's power to discriminate on the basis of sexual orientation.

"The statute wouldn't be ripped to shreds," said Laurence H. Tribe, a constitutional law professor at Harvard Law School, "but it would be unconstitutional as applied to circumstances like these where you have two couples identically legally married in the states where they live but one is entitled to financial or other tangible benefits that the other couple can't get."

From the Boston Globe, a story by Jonathan Saltzman that begins:

Fifteen gay and lesbian residents from Massachusetts who wed after this state legalized same-sex marriages filed a discrimination suit today, challenging a federal law that defines marriage as a union between a man and a woman.

Six same-sex couples and three men whose husbands have died -- one of the deceased was retired congressman Gerry E. Studds -- said in the suit that the 1996 Defense of Marriage Act treats them like second-class citizens and is unconstitutional. The 92-page complaint was filed in US District Court in Boston.

The suit, which legal specialists described as the first serious challenge to the federal law signed by President Bill Clinton, contends that the statute has deprived the plaintiffs of benefits enjoyed by heterosexual married couples.

Those benefits include health insurance for spouses of federal employees, tax deductions for couples who jointly file federal income tax returns, and the ability to use a spouse's last name on a passport.

"Suit Seeks to Force Government to Extend Benefits to Same-Sex Couples " is the headline to this story in the NY Times. NPR's Morning Edition has this nearly 5-minute story March 3rd.

Posted by Marcia Oddi on March 4, 2009 01:42 PM
Posted to General Law Related

Ind. Decisions - 7th Circuit rules in one Indiana case today

In Williams v. Lemmon (SD Ind., Judge McKinney), a per curiam 15-page opinion in a case argued Oct. 2, 2007, the Court writes:

An Indiana jury found Ronald Williams guilty of murder, and the state trial court sentenced him to 75 years’ imprisonment. Williams’s conviction and sen- tence were upheld on direct appeal and on collateral review in the Indiana courts. Williams then petitioned for a writ of habeas corpus. The district court denied that petition. We issued a certificate of appealability on the question whether his trial counsel rendered constitution- ally deficient assistance. On appeal Williams faults trial counsel for failing to interview one of two other people who arrived at the scene where the murder was com-mitted. * * *

Unless counsel never can rely on statements taken by the police, a state court does not act unreasonably when holding that choices such as Inman’s fall short of ineffective assistance. Because the Supreme Court has not established such a per se rule we do not have a single “egregious” omission that spoils what was otherwise a competent defense. Given the state court’s findings of fact, and the context of the complete work Inman did for his client, the state judiciary’s decisions cannot be set aside under the standard of §2254(d). AFFIRMED

Posted by Marcia Oddi on March 4, 2009 01:34 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Gina Johnson v. Robert C. Johnson, a 10-page opinion, Judge Darden writes:

Gina Johnson (“Wife”) appeals the trial court’s order granting Robert Johnson’s (“Husband”) motion to have Wife’s judgment lien subordinated. * * *

More importantly, however, the parties failed to specifically address Wife’s lien or its priority, if any, over other liens in the Settlement Agreement. In fact, the Settlement Agreement did not even recognize that Wife would have a judgment lien. Such an omission occurred despite both parties having knowledge of the line of credit; its necessity for maintaining Sunset Dairy’s operations; and representation of both parties by counsel. Thus, we cannot say, where Wife’s judgment lien originally was subordinate to the Bank’s lien and the Settlement Agreement did not address the priority of Wife’s judgment lien, the trial court modified the Settlement Agreement. Rather, it sought to enforce the Settlement Agreement as written. Cf. Phillips v. Delks, 880 N.E.2d 713, 723 (Ind. Ct. App. 2008) (finding no improper modification of a property settlement agreement, which provided that the husband would become the sole owner of the parties’ vehicle, where trial court did not order the husband to transfer the ownership of the vehicle to the wife, but rather ordered him to sell or refinance it). We find no error. Affirmed.

Jason McReynolds v. State of Indiana - "Jason McReynolds appeals his conviction for class D felony battery of a person less than fourteen years of age, asserting that the evidence is insufficient. We affirm. * * *

" Clearly, the force was disproportionate to the offense, unnecessarily degrading, and could even result in permanent scarring and long-term emotional trauma. Accordingly, we affirm McReynolds’s conviction for class D felony battery."

NFP civil opinions today (0):

NFP criminal opinions today (5):

Reginald R. Bragg v. State of Indiana (NFP)

Willie L. Joseph v. State of Indiana (NFP)

Ricky Bingham v. State of Indiana (NFP)

Robert Freeman v. State of Indiana (NFP)

Kara Crisp v. State of Indiana (NFP)

Posted by Marcia Oddi on March 4, 2009 01:26 PM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Is a city attorney working on contract subject to the statutory prohibition against advance payment?

Jill Blocker of the Muncie Star-Press has an interesting story today. Some quotes from the story, headed "Gaston attorney's contract stirs up controversy":

[Ralph E.] Dowling's contract stated he would be paid his $5,000 compensation in two installments: $2,500 by Jan. 31, and $2,500 by Sept. 1. He also receives $150 an hour for his attorney services.

Believing the contract is against Indiana Code, because Dowling would be getting paid in advance of any work he performed, Gaston Clerk-treasurer Jennifer Shell initially withheld his first payment.

"When I talked to State Board of Accounts they said that you can't pay in advance for services not yet rendered," Shell said.

Indiana Code 5-7-3-1 states that public officers may not draw or receive their salaries in advance.

Dowling told The Star Press his contract was the same as that of previous city attorneys. [Andrea Koontz, Gaston board president], however, acknowledged that she wrote the early payment into the contract herself because there were a number of cases Dowling needed to work on right away. She said the code doesn't apply to Dowling's case because he is not a public officer. The second board member who signed the contract, Joe Hardwick, said he was unaware of any clauses that allowed Dowling to be paid in advance of services.

"He's not appointed or elected to office," Koontz said. "He just applied."

Indiana Code 5-13-4-21 states that a public officer is anyone elected or appointed to any office of the state or any political subdivision, including an officer of all boards, commissions, departments, institutions, and other bodies established by law, that are supported wholly or partly by appropriations of money made from the treasury of the state or political subdivision or that are supported wholly or partly by taxes or fees. State Board of Account officials contend that includes a town attorney like Dowling.

Posted by Marcia Oddi on March 4, 2009 10:40 AM
Posted to Indiana Government

Courts - SCOTUS rules federal approval of labels giving warnings about effects of drugs does not bar lawsuits under state law

This was a much anticipated ruling - see earlier ILB entries here.

See Lyle Denniston's summary of today's ruling here, at SCOTUSBlog. Here is the opinion.

[More] The WSJ Law Blog's just-posted entry notes: "The decision is the second this term that rejected business groups’ arguments that federal regulation effectively preempts consumer complaints under state law.."

Posted by Marcia Oddi on March 4, 2009 10:35 AM
Posted to Courts in general

Ind. Decisions - Supreme Court holds that the shopping center owners are not entitled to consequential damages from street reconfigurations that affect traffic flow

In State of Indiana v. Kimco of Evansville, Inc., et al, a 14-page, 3-2 opinion, Justice Boehm writes:

In State v. Ensley, 240 Ind. 472, 164 N.E.2d 342 (1960), this Court held that roadway improvements that reduce or interfere with traffic flow to a commercial property do not constitute takings of a property right of the owner of the property. We reaffirm Ensley and hold that the shopping center owners are not entitled to consequential damages from street reconfigurations that affect traffic flow through the center and prevent expansion of existing points of ingress or egress, but leave existing points in place. * * *

The jury awarded Kimco $2,300,000.

The State appealed, arguing that the trial court erred by admitting Kimco‘s loss-of-access evidence and by giving the quoted instruction. See State v. Kimco of Evansville, Inc., 881 N.E.2d 987 (Ind. Ct. App. 2007). The Court of Appeals affirmed, concluding that the sum of the State‘s roadway improvements created an injury to Plaza East that amounted to more than mere inconvenience, and that Kimco suffered a taking of its access rights as a matter of law. The Court of Appeals held that the trial court therefore properly admitted Kimco‘s loss-of-access evidence and that the court properly instructed the jury on the compensability of lost access. We granted transfer. * * *

There is no question that an exercise of eminent domain, such as the condemnation of the 0.154-acre strip in this case, is a constitutional "taking." Other forms of governmental action, however, are "takings" only if they meet the prevailing federal standard, which is that govern-ment action effects a taking if it deprives an owner of all or substantially all economic or produc-tive use of his or her property. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538–40 (2005). Factors considered under the foregoing test include the economic impact of the regulation on the property owner, the extent to which the regulation has interfered with distinct investment-backed expectations, and the character of the government action. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). The effects of the road improvements on Plaza East, if viewed separately from the taking of the 0.154-acre strip, plainly do not meet the Lingle test. Presumably for this reason Kimco presents its case in terms of Indiana case law. Because recent constitu-tional takings cases to some extent have modified Indiana case law, a discussion of these consti-tutional cases is useful background. [ILB - the review follows on pp. 6-7.] * * *

Indiana law has specifically addressed the damages to adjacent landowners from reconfigured highways. Many of the principles applicable to this case come from this Court‘s opinion in State v. Ensley, 240 Ind. 472, 164 N.E.2d 342 (1960). * * *

The principles announced in Ensley have since been applied and clarified in a series of eminent domain cases dealing with traffic flow issues and rights of ingress/egress. Each of these cases addresses a unique set of facts, but collectively they affirm the distinction first drawn in Ensley: although an elimination of rights of ingress and egress constitutes a compensable taking, the mere reduction in or redirection of traffic flow to a commercial property is not a compensable taking of a property right. * * *

Given the record testimony assessing the compensable takings at no more than $100,700, the $2,300,000 verdict is excessive as a matter of law. The judgment of the trial court is reversed and the cause remanded for proceedings consistent with this opinion.

Shepard, C.J., and Sullivan, J., concur.
Dickson and Rucker, JJ., dissent, believing that the Court of Appeals correctly decided this case.

Appendix A - [Before and after diagrams]

Here is the ILB entry from Aug. 25, 2008 that includes links to the COA opinion and oral argument webcast.

Posted by Marcia Oddi on March 4, 2009 10:07 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Muncie mayoral election dispute set for oral argument

Updating this ILB entry from Feb. 24th, that includes links to earlier related stories, plus court filings ...

"Mansfield v. McShurley ... the saga continues" is the headline to a story today in the Muncie Star-Press, reported by Rick Yencer:

MUNCIE -- The legal challenge of Republican Mayor Sharon McShurley's election by Democrat James Mansfield is still very much alive.

The Indiana Court of Appeals set a hearing for next month after denying McShurley's move to dismiss the case last year. The court will hear oral arguments on Mansfield v. McShurley and the Delaware County Election Board during "Know Your Rights Week" on the Purdue University campus April 14. * * *

Mansfield, executive director of the Muncie Visitors Bureau, initially prevailed in the 2007 city election, but then lost by 13 votes after 19 absentee ballots were thrown out because they were not initialed by a Republican election clerk. Special Judge Joel Roberts of Jay County then denied Mansfield's effort to hold a special election for disenfranchised voters in Precinct 46 where the absentee ballots were tossed out.

Indianapolis attorney William Groth, representing Mansfield, said Tuesday that the trial court erred by dismissing Mansfield's statutory contest as being untimely, although he had no way of knowing McShurley's recount petition would result in absentee ballots being thrown out.

"Mansfield filed his contest petition promptly after the recount commission certified his opponent as the winner," Groth said, adding that under a 2003 Indiana Supreme Court decision, Pabey v. Pastrick, the trial court should have entertained Mansfield's contest petition even though it was filed beyond the deadline in the statute.

By failing to give Mansfield access to the court, Groth also argues the trial court violated Mansfield's constitutional rights to equal access to election remedies in the law, as well as disenfranchising voters.

Mansfield seeks a special election in Precinct 46 that would ultimately decide who won the 2007 election.

"Indiana law typically allows for special elections," said Groth.

Indianapolis attorney David Brooks, representing McShurley, said the law also was clear on absentee ballots, saying those without the initials of both Republican and Democratic clerks were invalid.

"You don't have statutory or case law authority for a special election under these circumstances," said Brooks, adding he was comfortable that the trial court followed the law in dismissing Mansfield's complaint.

Brooks said there was nothing new or different in Mansfield's appeals arguments that the trial court rejected, although he said he was unsure what the appeals court would do.

Mansfield hopes the appeals court will correct problems in the law that allows only an election loser to contest election results with no remedy for a winner who becomes a loser in a recount, he said.

Posted by Marcia Oddi on March 4, 2009 08:58 AM
Posted to Indiana Courts

Law - "You’re Dead? That Won’t Stop the Debt Collector "

So reads the headline to this long story today in the NY Times by David Streitfeld. Some quotes:

MINNEAPOLIS — The banks need another bailout and countless homeowners cannot handle their mortgage payments, but one group is paying its bills: the dead.

Dozens of specially trained agents work on the third floor of DCM Services here, calling up the dear departed’s next of kin and kindly asking if they want to settle the balance on a credit card or bank loan, or perhaps make that final utility bill or cellphone payment.

The people on the other end of the line often have no legal obligation to assume the debt of a spouse, sibling or parent. But they take responsibility for it anyway. * * *

Dead people are the newest frontier in debt collecting, and one of the healthiest parts of the industry. Those who dun the living say that people are so scared and so broke it is difficult to get them to cough up even token payments.

Collecting from the dead, however, is expanding. Improved database technology is making it easier to discover when estates are opened in the country’s 3,000 probate courts, giving collectors an opportunity to file timely claims. But if there is no formal estate and thus nothing to file against, the human touch comes into play.

Posted by Marcia Oddi on March 4, 2009 08:51 AM
Posted to General Law Related

Courts - Sandra Day O'Connor was on The Daily Show last night

Here is a USA Today pre-story. The clips to parts 1 and 2 are available here and here.

Posted by Marcia Oddi on March 4, 2009 08:01 AM
Posted to Courts in general

Tuesday, March 03, 2009

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

In US v. Brazelton (ND Ind., Judge Miller), a 10-page opinion, Judge Coffey writes:

Appellant Brazelton argues that his conviction should be set aside, arguing that one of the jurors seated was related to the victim in the shooting that led to Brazelton’s arrest and the search of his home. He makes this argument even though the victim did not testify and his name was not mentioned again after it was mentioned at voir dire. More importantly, though, Brazelton waived the issue raised for argument at trial even though he was aware of the juror's relationship at voir dire, and told the judge during the juror selection process that he did not want the juror to be struck for cause.

Brazelton also claims, and the government concedes, that he should be resentenced in light of Kimbrough v. United States, 128 S. Ct. 558 (2007) because the district court followed the then-governing case law rejecting Brazelton’s argument that the court had discretion to impose a below-guidelines sentence based on a disagreement with the crack-powder ratio. We agree and remand for resentencing and we affirm Brazelton’s conviction. * * *

In this circuit, there is no ambiguity on the question whether the right to an impartial jury can be waived. We have held that “[t]he Sixth Amendment right to an impartial jury, like any constitutional right, may be waived.”

Posted by Marcia Oddi on March 3, 2009 01:58 PM
Posted to Ind. (7th Cir.) Decisions

Environment - More on: "IDEM updates compliance and enforcement policy to reflect changes to agency structure"

Updating yesterday's ILB, Gitte Laasby reports today in the Gary Post-Tribune in a story that begins:

The Indiana Department of Environmental Management is not backing down from its controversial new enforcement policy.

IDEM posted a version with minor changes on its Web site Monday. The agency mainly revised its October draft to reflect that it no longer has a separate enforcement branch. The new draft does not address concerns that the policy would make it tougher for IDEM staff to enforce against polluters who violate their permits. * * *

The policy is now up for public comment for 45 days. After that, IDEM will take it to the state's air and water pollution control boards and to the solid waste management board before it takes effect.

The procedure for IDEM's putting a nonrule policy document (NPD) into effect is set out in IC 13-14-1-11.5(b) Subsection (a) states: "the proposed policy or statement may not be put into effect until the requirements of subsection (b) have been met."

Basically under subsection (b), for at least 45 days before it presents the policy to the appropriate environmental board or boards, IDEM must post the proposed NPD and associated information on the IDEM website, along with the date, time, and location of the presentation to the appropriate board, and information on how to submit comments.

That is it. After presentation of the proposed NPD to the appropriate board (the board really has no say, there is no provision for a vote, etc.), IDEM is to send it to the Indiana Register for publication. But the last step for effectiveness is presentation to the board(s).

Thus, I would disagree with that part of the Tribune story that quotes an environmental representative as stating:

* * * the public comment period must be noticed in the Indiana Register, but wasn't.

"If they did, they certainly didn't follow the statutory requirements," she said. "I have checked listings of the Indiana Register for September, October and November and there are no such notices."

Posted by Marcia Oddi on March 3, 2009 01:22 PM
Posted to Environment

Ind. Decisions - "Special prosecutor to take impersonation case "

The Court of Appeals decision Feb. 27th in the case of Bruce Jones v. State of Indiana -- see ILB summary here, 4th case --- is the subject of a story today by Justin Leighty of the Elkhart Truth. The story begins:

The Indiana Court of Appeals ruled last week that Curtis Hill's office shouldn't be prosecuting a man accused of impersonating Hill, and ordered the re-appointment of a special prosecutor to handle the case.

Posted by Marcia Oddi on March 3, 2009 01:17 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Mishawaka loses bid to hold Uniroyal liable for Mishawaka’s clean up costs

Updating this ILB entry from Feb. 27th, Sue Lowe of the South Bend Tribune today has this story. The story begins:

MISHAWAKA — The company that is all that’s left of Uniroyal does not have to pay the city of Mishawaka for costs it incurred cleaning up pollution at the old Ball Band/Uniroyal site near downtown.

A federal judge has ruled that Uniroyal Holding Inc. is not responsible for the cost of cleaning the site on the St. Joseph River at Main Street.

"It’s not good news for the city," Mayor Jeff Rea said of the ruling by U.S. Magistrate Judge Christopher A. Nuechterlein.

He said lawyers representing the city are exploring the city’s options.

"We believe the people we’re dealing with (Uniroyal Holding) have some responsibility," Rea said.

The suit is being handled by the law firm of Plews Shadley Racher & Braun.

Rea said the firm won’t get paid unless they collect money for the city.

However, he said the city is probably out as much as $6,000 for producing documents and other evidence.

Posted by Marcia Oddi on March 3, 2009 01:10 PM
Posted to Ind Fed D.Ct. Decisions

Environment - "Prison for toxic polluter;" Hassan Barrel site in Fort Wayne

An ILB entry from July 4, 2007 quotes an AP story headed "Company president indicted over toxic waste storage."

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

Before he was sentenced for causing millions of dollars in damage with toxic waste, Alan D. Hersh had plenty to say.

He chatted with attorneys and investigators inside the massive U.S. District Court room Monday afternoon, talking about driving with his dog in the car and making small talk about Indiana industry.

But when U.S. District Judge Theresa Springmann asked him whether he had anything to say before she sentenced him to 15 months in federal prison and ordered him to start paying immediately on $1.7 million in restitution, Hersh fell silent.

And when approached in the hallway after his hearing for comment on the environmental disaster he created at the former Fort Wayne-based Hassan Barrel Co., he offered no more than a grunt and a dismissive wave of his hand.

So the last word went to Springmann, who in court and in a 12-page sentencing memorandum found Hersh's remorse and understanding of the damage he caused less than complete or convincing. * * *

[The] crime involved walking away from the company's 7-acre Summer Street site, leaving thousands of barrels leaking paint wastes and caustic chemicals and open pits where the company apparently dumped hazardous material into the ground, according to court documents.

The Hassan Barrel site was a few blocks from Adams Elementary School. The soil at the abandoned facility is contaminated with what leaked from the barrels, including butanone, ethyl-benzene and toluene, cadmium, chromium, lead and mercury. The chemicals cause a range of health problems from cancer to kidney and liver damage and lung problems.

At last tally in November, the Environmental Protection Agency had spent $1.7 million on cleanup at the site.

Here are earlier ILB entries on Hassan Barrel.

Posted by Marcia Oddi on March 3, 2009 12:33 PM
Posted to Environment | Ind Fed D.Ct. Decisions

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

For publication opinions today (1):

In Gary West, et al. v. The City of Princeton , a 12-page opinion, Judge Bradford writes:

Appellants/Remonstrators Gary West, et al., (“Appellants”) appeal from the trial court’s denial of their motion for summary judgment and its judgment in favor of Appellee/Respondent the City of Princeton. Appellants contend that the trial court erred in denying their summary judgment motion because Princeton allegedly failed to strictly comply with the relevant notice statute. Moreover, Appellants contend that the trial court’s judgment is clearly erroneous in several respects. We affirm the judgment of the trial court and its denial of Appellants’ summary judgment motion.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Donald Cassetty v. State of Indiana (NFP)

Posted by Marcia Oddi on March 3, 2009 12:23 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Supreme Court Seeks Public Comment as it Considers Clarifying What Constitutes Pro Bono Work and a Rule Change Regarding Change of Venue

The Indiana Supreme Court is interested in obtaining comments from judges, attorneys and the public as it considers changes in two specific areas.

• The Rules Committee is recommending adding commentary to Professional Conduct Rule 6.1 to clarify what types of activities do and do not qualify as Pro Bono work, which is legal help an attorney provides to a client for no fee or a significantly reduced fee.

• The Rules Committee is also recommending that after a final decree in dissolution of marriage and paternity cases, a party shall not be entitled to a change of judge in connection with a petition to modify, except where a legally recognized reason for a change of venue is shown.

Here is the notice and request for comments. These are due April 30, 2009.

Posted by Marcia Oddi on March 3, 2009 12:18 PM
Posted to Indiana Courts

Ind. Courts - Indiana Supreme Court is interested in receiving comments concerning whether custodial interrogations in criminal investigations should be electronically recorded

From the Supreme Court:

The Indiana Supreme Court is interested in receiving comments from the bench, bar and public concerning (1) whether it should adopt a rule requiring that custodial interrogations in criminal investigations be electronically recorded in some circumstances, and (2) if so, the appropriate content of such a rule. To that end, the Court asked the Committee on Rules of Practice and Procedure to develop and publish such a rule.

In the request, two prototypes of a custodial interrogation rule are presented, along with some arguments for and against. Comments will be accepted through April 30, 2009.

Posted by Marcia Oddi on March 3, 2009 12:11 PM
Posted to Indiana Courts

Ind. Decisions - Marion County Judge rules cap on punitive damages is unconstitutional [Updated]

Note this is about the punitive damages cap itself, not the allocation requirement. Jon Murray reports today in the Indianapolis Star in a lengthy story. Here are a few quotes:

A Marion County judge has ruled that state lawmakers violated the Indiana Constitution when they set a limit on monetary damages juries could impose to punish defendants in lawsuits.

For now, Marion Superior Court Judge David Dreyer's ruling won't directly affect other cases. Limits on punitive damages -- to three times the compensatory damages or $50,000, whichever is greater -- likely will stand until Indiana's appeals court weighs in.

Some legal experts think the ruling will be overturned. They say lawmakers exercised a valid power when they restricted punitive damages and did not infringe on the authority of the courts. While Indiana law restricts punitive damages, it doesn't limit damage awards that compensate a plaintiff for actual losses or pain and suffering.

The ruling came Friday in case where a jury had awarded a Greene County man $5,000 in compensatory damages in his sexual abuse lawsuit against a priest. Jurors also added $150,000 in punitive damages, which would have to be reduced under the cap to $50,000.

But when the priest's attorneys asked Dreyer to reduce the award, he ruled the limits were unconstitutional. * * *

As his rationale, Dreyer cited the separation of powers between the legislative and judicial branches as well as the right to a trial by jury that is among the core values of the state constitution.

"The Statute's two provisions . . . interpose the will of the General Assembly to supersede otherwise valid jury verdicts," Dreyer wrote in the decision. * * *

The Indiana Supreme Court hasn't ruled directly on the punitive damage limits the General Assembly approved in 1995. But it has addressed another part of the law, upholding in a 3-2 ruling in 2003 a provision requiring successful plaintiffs to cede 75 percent of punitive damage awards to the state. The Indiana Violent Crime Victim Compensation Fund gets those funds.

The 2003 Indiana Supreme Court decision referenced in the story is Cheatham v. Pohle. Here is what the ILB wrote at the end of a 5/15/2004 entry:

And what of Indiana? Indiana's punitive damages allocation statute, IC 34-51-3 [Sec. 4 is the cap; Sec. 6 is the allocation] , provides that an award of punitive damages is to be paid to the clerk of the court, who is then to pay 75% to the State's Violent Crime Victims' Compensation Fund and 25% to the plaintiff. This law was enacted in 1998. The law was challenged and upheld by the Indiana Supreme court in the case of Cheatham v. Pohle (5/30/03). Access the ILB coverage of the opinion here. The 7th Circuit recently relied on Cheatham in its opinion in Juarez v. Menard, Inc. (April 2004). See ILB coverage here. A quote from the 7th Circuit opinion:

Punitive damages, however, go beyond compensating a tort victim for a cognizable wrong. They are designed to deter and punish wrongful activity, and as such, are quasi-criminal in nature. Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind. 2003). Under Indiana law, which we must apply in this diversity action, (see Erie R.R. Co. v. Tompkins, 304 U.S 64, 78 (1938)) civil plaintiffs have no right to receive punitive damages. Cheatham, 789 N.E.2d at 472. And, in fact, the Indiana General Assembly has demonstrated a disinclination toward allowing unchecked punitive damages awards by enacting legislation that limits the amount of money a plaintiff may receive from a punitive damages award (IC 34-51-3-6) and by requiring that a plaintiff establish the facts warranting an award of punitive damages by clear and convincing evidence rather than the usual preponderance of the evidence standard. IC 34-51-3-2. Thus in Indiana, before a court may award punitive damages, a plaintiff must demonstrate by clear and convincing evidence that the defendant acted with malice, fraud, gross negligence or oppressiveness that was not the result of mistake of fact or law, honest error of judgment, overzealousness, mere negligence, or other human failing. [cites deleted] Moreover, a trier of fact is not required to award punitive damages even after finding all of the facts necessary to justify the award. Cheatham, 789 N.E.2d at 472. The requirements for an award of punitive damages, therefore, go far above and beyond those required for a finding of negligence.

The Indiana Supreme Court also ruled, in the case of Stroud v. Lints (6/25/03), issued a few weeks after Cheatham, that "the amount of punitive damages awarded by a trial court is subject to appellate review de novo." In Stroud the Court remanded "so that the trial court may enter an award of punitive damages in an amount reflecting proper consideration of the defendant's financial status." [ILB - The IC 34-51-3-4 limit is not addressed.]

In an Oct. 16, 2005 ILB entry, a Court of Appeals Sept. 14, 2005 decision, Ricky Westray, et al v. Delores Wright, et al., is discussed. The COA addressed a trial court ruling reducing the punitive damages award from $15,000,000 to $3,435,000. The trial court reduced the punitive damages award based on IC 34-51-3-4. See p. 8 and ftnote 4. The COA, however, does not further address the statute. Instead it concludes:

Ultimately, therefore, the punitive damages award was inappropriate insofar as it was designed to punish Bekins directly. * * *

In sum, we conclude as follows: (1) the jury’s finding of negligence with respect to appellants and its corresponding award of compensatory damages are appropriate; and (2) the jury’s award of punitive damages was inappropriate inasmuch as there was not clear and convincing evidence that Westray or Bekins acted with the mental state sufficient to sustain such an award.

The judgment of the trial court is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

[Updated] Here is a copy of Judge Dreyer's order in the case, John Doe v. Father Jonathan Lovill Stewart.

Posted by Marcia Oddi on March 3, 2009 06:35 AM
Posted to Ind. Trial Ct. Decisions

Monday, March 02, 2009

Environment - "IDEM updates compliance and enforcement policy to reflect changes to agency structure"

IDEM has today issued a press release headed "IDEM updates compliance and enforcement policy to reflect changes to agency structure." What I understand it to mean is that they have amended the long-pending revised policy document, 08-006-NPD, which has suddenly disappeared from their webpage, and updated it to reflect the fact that the Office of Enforcement was abolished. However, I can't be sure because the earlier proposal is no longer available. Here is the new document.

For background, see this list of ILB entries, and particularly this one from Dec. 19, 2008.

Here is today's press release:

Today, the Indiana Department of Environmental Management (IDEM) unveiled a new policy to help businesses and citizens understand the agency’s compliance and enforcement process. The Compliance and Enforcement Response Policy (CERP) is available for public comment over the next 45 days.

“Revising the CERP was necessary to bring the policies and procedures up-to-date with current agency structure and operations,” said IDEM Commissioner Thomas Easterly. “The updated policy will inform Hoosiers about IDEM’s compliance process. I encourage everyone to read the policy for themselves and participate in the public comment process.”

Revising and formally adopting the CERP establishes a clear process for referring compliance violations to IDEM’s enforcement program. Changes in the current document reflect the integration of IDEM’s enforcement activities into the compliance branches.

Additionally, the CERP categorizes compliance violations into three classes and prioritizes severe violations. Based on the severity of the violation, the policy directs IDEM’s initial response, ranging from an immediate enforcement referral to technical assistance provided by compliance staff. The policy defines how enforcement will be used as a tool to achieve compliance in the three classes of violations.

“IDEM’s goal continues to be increased compliance with environmental regulations,” said Commissioner Easterly. “This revision has been an extensive process to provide a clear and accurate document that will be helpful to agency staff, Hoosiers and businesses.”

The CERP can be found online [here]. Details on the public comment process, including how to submit comments, are included on the Web page. After the public comment period, the policy is reviewed by four of Indiana’s environmental boards before going into effect.

Posted by Marcia Oddi on March 2, 2009 04:47 PM
Posted to Environment

Ind. Decisions - Supreme Court issues one today,

In In the Matter of Robert E. Lehman, a 4-page per curiam opinion in an attorney disciplinary action, the majority writes:

We find that Respondent, Robert E. Lehman, engaged in attorney misconduct by committing the federal felony of willfully making a false tax return. * * * For his misconduct, we find that Respondent should be disbarred from the practice of law in this state. * * *

For Respondent's professional misconduct, the Court disbars Respondent from the practice of law in this state effective immediately. Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent. * * *

Shepard, C.J., and Dickson and Boehm, JJ., concur.
Sullivan and Rucker, JJ., concur, except that they would impose a three-year suspension without automatic reinstatement.

Posted by Marcia Oddi on March 2, 2009 04:39 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending Feb. 27, 2009

Here is the transfer list for the week ending Feb. 27, 2009. It is six pages long.

Six transfers were granted last week, in five cases; see details in this ILB entry from Feb. 27th.

Notable among the cases not granted tranfer was LHT Capital, LLC v. Indiana Horse Racing Comm., et al. - see ILB entry from August 7, 2008 here, and on reh. den. here. For even more, see this ILB entry from Jan. 2, 2009, headed "Quirks of the Rules of the State Lottery Commission and Horse Racing Commission."

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 March 2, 2009 04:27 PM
Posted to Indiana Transfer Lists

Courts - "Supreme Court Enters the YouTube Era "

Adam Liptak's column in tomorrow's NYT will be titled "Supreme Court Enters the YouTube Era ." The article begins:

The Supreme Court is entering the YouTube era.

The first citation in a petition filed with the court last month, for instance, was not to an affidavit or legal precedent but rather to a video link. The video shows what is either appalling police brutality or a measured response to an arrested man’s intransigence — you be the judge.

Such evidence verité has the potential to unsettle the way appellate judges do their work, according to a new study in The Harvard Law Review. If Supreme Court justices can see for themselves what happened in a case, the study suggests, they may be less inclined to defer to the factual findings of jurors and to the conclusions of lower-court judges.

In 2007, for instance, the Supreme Court considered the case of a Georgia man who was paralyzed when his car was rammed by the police during a high-speed chase. The chase was recorded by a camera on the squad car’s dashboard, and that video dominated the court’s analysis.

The 70-page, Jan. 2009 Harvard Law Review article, "WHOSE EYES ARE YOU GOING TO BELIEVE? SCOTT V. HARRIS AND THE PERILS OF COGNITIVE ILLIBERALISM," by Dan M. Kahan, David A. Hoffman, and Donald Braman, is available here. More from the NYT column:

The court posted the video on its Web site. “I suggest that the interested reader take advantage of the link in the court’s opinion and watch it,” Justice Breyer said in a concurrence.

Three law professors accepted that invitation and made it the basis of an interesting study published in January in The Harvard Law Review. They showed the video to 1,350 people, who mostly saw things as the justices did. Three-quarters of them thought the use of potentially deadly force by the police was justified by the risk Mr. Harris’s driving posed.

But African-Americans, liberals, Democrats, people who don’t make much money and those who live in the Northeast were, the study found, “much more likely to see the police, rather than Harris, as the source of the danger posed by the flight and to find the deliberate ramming of Harris’s vehicle unnecessary to avert risk to the public.”

Video creates a danger, the study said, of “decision-making hubris” by judges.

Many judges do not seem to understand, said Jessica Silbey, a law professor at Suffolk University in Boston, that video is not categorical or irrefutable proof like DNA but only a partial, volatile and dangerously persuasive account of what happened.

Posted by Marcia Oddi on March 2, 2009 02:15 PM
Posted to Courts in general

Ind. Courts - Judicial Center's Legislative Update #7

This is the mid-session review:

We have reached the halfway point of the session. This installment is a series of topical charts detailing the status of bills of interest to the Judiciary that were heard on third reading. If a bill was amended at any stage in the legislative process, it is designated with an “-A” at the relevant stage.

Posted by Marcia Oddi on March 2, 2009 02:08 PM
Posted to Indiana Courts

Courts - "W.Va. mining case could shape U.S. judicial races"

A good preview of tomorrow's SCOTUS argument in Caperton v. Massey can be found here, written by Lyle Denniston, at SCOTUSBlog.

The Charleston West Virginia Gazette-Mail has a story Sunday headed "W.Va. mining case could shape U.S. judicial races".

"Case May Define When a Judge Must Recuse Self: W.Va. Justice Ruled for a Man Who Spent Millions to Elect Him," is the headline to a story today by Robert Barnes in the Washington Post.

Posted by Marcia Oddi on March 2, 2009 01:56 PM
Posted to Courts in general

Ind. Law - This week at the General Assembly - Week 8

Bryan Corbin's weekly "Legislative Notebook" report appears today in the Evansville Courier & Press with this headline: "State Senate, House to swap bills." It begins:Like turning over an old LP record onto its flipside, the Indiana General Assembly starts afresh this week.

The Indiana House passed and sent bills to the state Senate, and the Senate sent its bills to the House, ahead of last Wednesday's midsession deadline.

Now each side will take apart the other's bills, often recrafting or entirely rewriting them, setting the stage for late-session haggling to reach compromises before the April 29 adjournment deadline.

Senate President David Long warned there could be an "overtime" special session if the Legislature cannot agree on how to fix the state's insolvent unemployment insurance trust fund by that deadline.

"If people aren't willing to roll up their sleeves and work to find a solution, we could be here until the end of May working on this particular issue," Long, R-Fort Wayne, said last week.

Posted by Marcia Oddi on March 2, 2009 01:52 PM
Posted to Indiana Law

Ind. Decisions - 7th Circuit considers doctrine of impossibility in Wisconsin opinion

Wis. Electric Power Company v. Union Pacific RR is a 13-page opinion by Judge Posner that begins:

WEPCO, an electric utility that is the plaintiff in this diversity suit for breach of contract (governed by Wisconsin law), appeals from the grant of summary judgment to the defendant, the Union Pacific railroad. The contract was for the transportation of coal to WEPCO from coal mines in Colorado between the beginning of 1999 and the end of 2005. The appeal presents two issues: whether a force majeure clause in the contract authorized the railroad to increase its rate for ship- ping the coal, and whether the railroad breached its duty of good-faith performance of its contractual obligations by failing to ship the tonnage requested by WEPCO on railcars supplied by the railroad.

The doctrine of impossibility in the common law of contracts excuses performance when it would be unreasonably costly (and sometimes downright impossible) for a party to carry out its contractual obligations.

Posted by Marcia Oddi on March 2, 2009 01:47 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit withdraws Feb. 27th opinion

In this ILB entry from Feb. 27th, the ILB reported the 7th Circuit opinion in US v. Dunson, where the per curiam panel affirmed a SD Ind. opinion by Judge Tinder.

Today this 7th Circuit has posted this document, withdrawing the Feb. 27th opinion and vacating the judgment.

Posted by Marcia Oddi on March 2, 2009 01:41 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Kernan-Shepard local government reform bills scorecard

The Evansville Courier & Press has a mid-session scorecard of the commission on local government reform's recommendations.

It accompanies this long story by Bryan Corbin on SB 512, headed "Warm welcome unlikely for reform bill: Diluted rewrite on townships may not get House hearing."

Posted by Marcia Oddi on March 2, 2009 01:32 PM
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In In the Matter of the Stuart Cochran Irrevocable Trust; Chanell and Micaela Cochran v. Keybank, N.A., a 22-page opinion, Chief Judge Baker writes:

Appellants-petitioners Chanell and Micaela Cochran (the Beneficiaries) appeal the trial court’s order entering final judgment in favor of appellee-respondent KeyBank, N.A. (KeyBank), on the Beneficiaries’ petition seeking an accounting and alleging that KeyBank had breached its obligations as Trustee. The Beneficiaries argue that the trial court erroneously concluded that KeyBank did not violate the prudent investor rule and or breach its duties as trustee. Finding no error, we affirm. * * *

In sum, we find that the trial court did not erroneously conclude that, while KeyBank’s decisionmaking process and communication with the Beneficiaries was not perfect, it was sufficient. Although it is tempting to analyze these cases with the benefit of hindsight, we are not permitted to do so, nor should we. KeyBank chose between two viable, prudent options, and given the facts and circumstances it was faced with at that time, we do not find that its actions were imprudent, a breach of any relevant duties, or a cause of any damages to the Beneficiaries.

NFP civil opinions today (0):

NFP criminal opinions today (3):

David Nibbs v. State of Indiana (NFP)

John Dixon v. State of Indiana (NFP)

Benjamin Zell v. State of Indiana (NFP)

Posted by Marcia Oddi on March 2, 2009 01:16 PM
Posted to Ind. App.Ct. Decisions

Ind. Law - "Minitruck" bill passes first house, while golf cart bills remain in committee

A discussion in the middle of LCJ Reporter Lesley Stedman Weidenbener's lengthy interview today on Sen. Richard Young, D-Milltown caught my attention:

Q: You authored a bill that would legalize the use of minitrucks, which are tiny versions of pickup trucks. What happened with that bill?

A: It didn't get a hearing in the Senate, but it has been heard and passed out of the House and that bill is coming to me (to sponsor in the Senate).

It's important to me because I have dealers in my Senate district that are selling these vehicles and they feel like that by allowing these to be used on state roads, other than interstates, as they are in many other states, they will have a broader market for their products.

It could bring some economic improvement to my district and to the state.

Q: What are minitrucks?

A: They run about 60 mph. That's about the top speed. They have enclosed cabs, unlike ATVs. They have to have all the safety devices, turn signals that any other vehicles used on the highway would have. But their gas mileage is infinitely better than traditional vehicles.

Like the reporter, the ILB has never before heard of "mini-trucks." But it has posted many entries on golf carts and on the sustained interest of citizens all around the state in being able able to legally use the economical golf cart as transport on city streets. Five bills to accomplish this goal were introduced this year, all remain in first house committee.

Posted by Marcia Oddi on March 2, 2009 12:52 PM
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court:

This Thursday, March 5th:

9:00 AM - James H. Helton, Jr. v. State of Indiana - Helton pleaded guilty to possession of methamphetamine with intent to deliver, a class A felony. The Elkhart Superior Court denied post-conviction relief. The Court of Appeals reversed, finding that Helton had been denied the effective assistance of trial counsel as a matter of law with respect to the failure to file a motion to suppress evidence. Helton v. State, 886 N.E.2d 107 (Ind. Ct. App. 5-16-2008), vacated. [See ILB summary here.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

9:45 AM - Thomas Williams v. Kelly Tharp - Plaintiffs filed a complaint against Papa John's restaurant and its employee, alleging defamation, false imprisonment, intentional infliction of emotional distress and other claims. A Papa John's employee reported one of the plaintiffs had "pulled out a gun" while in the restaurant, but police found no gun. The Hamilton Circuit Court entered summary judgment for the employee and Papa John's. The Court of Appeals reversed. Williams v. Tharp, 889 N.E.2d 870 (Ind. Ct. App. 7-/11/2008), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [See ILB summary of 7/11/08 COA opinion here. Here is a list of earlier ILB entries on this case, including several press stories.]

Next week's oral arguments before the Supreme Court:

None currently scheduled.

Webcasts will be available here.
_______________________________________________________________________________

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

None scheduled

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

This Tuesday, March 3th:

3:00 PM - Indiana Patient's Compensation Fund v. Gary Patrick - This is an appeal from the trial court's entry of judgment in favor of a father after witnessing the death of his adult son. The issue on appeal is whether the trial court erred in denying PCF's Motion For Summary Judgment and awarding emotional distress damages to father where (a) such damages are not recoverable under the Adult Wrongful Death Act and (b) father does not have an "independent claim" under the Medical Malpractice Act for the emotional distress he alleges he incurred as a result of the malpractice in the treatment of his son. The Scheduled Panel Members are: Judges Riley, May and Robb. [Where: Baxter Hall, Campus of Wabash College, 301 Wabash Avenue, Crawfordsville, Indiana]

This Thursday, March 5th:

1:00 PM - Bruce C. Scalambrino, et al vs. Town of Michiana Shores, et al - Appellants-Plaintiffs filed suit against the Town of Michiana Shores, several individual defendants, and T-Mobile regarding a lease between the Town and T-Mobile allowing erection of a cell phone tower on Town property. Appellants-Plaintiffs sought a temporary restraining order, preliminary injunction, declaratory judgment, and permanent injunction against the lease. Appellants-Plaintiffs appeal the trial court's grant of summary judgment to the Defendants, contending there are genuine issues of material fact regarding whether the lease violates Town zoning ordinances, whether purported amendments to the zoning ordinances were properly adopted, and whether the amendments constitute illegal spot zoning. The Scheduled Panel Members are: Judges Riley, Robb and Barnes. [Where: Hammond City Hall, City Council Chambers, 5925 Calumet Avenue, Hammond, Indiana]

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

Next Wednesday, March 11th:

1:30 PM - Wymberley Sanitary Works, Inc. v. Earl L. Batliner, et al - Appellant, Wymberley Sanitary Works, signed a contract to provide sewer service to two new residential subdivisions in Floyd County. It selected a route for its sewer lines that crossed four parcels of private property, and it sought to take easements by eminent domain when offers to purchase the easements failed. The trial court dismissed Wymberley's complaint. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Crone. [Where: Indiana Supreme Court Courtroom]

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

None currently scheduled
__________

* ILB note: As of now, the 2009 COA webcasts, both live and archived, may be accessed here.

Posted by Marcia Oddi on March 2, 2009 06:18 AM
Posted to Upcoming Oral Arguments

Sunday, March 01, 2009

Ind. Law - More on: "New Albany will tighten adult-club regulations"

Updating this ILB entry from Dec. 19, 2008, Danial Suddeath reports in the New Albany News & Tribune:

The New Albany City Council will amend the adult cabaret ordinance that passed on first and second readings when it convenes Monday.

The new measure switches the closing time for live adult entertainment clubs from midnight to 3 a.m. and shifts the 6-foot no-touch rule to 5 feet.

Councilman Bob Caesar — who introduced the ordinance and headed a committee based on restricting adult clubs — said the amendments are to ensure the city is following legal precedent.

“We’re trying to cover all our bases, and we don’t want to be discriminatory,” he said.

The Indiana Seventh District Court of Appeals [ILB - sic] ruled a 5-foot no-touch rule was constitutional, Caesar said. As for the extension of hours, Caesar said legal counsel advised that state alcohol rules permit a club to stay open until 3 a.m.

Caesar said the committee did not meet with representatives from the Rustic Frog — a club located at 1720 Old River Road — because the measure isn’t just about one establishment.

“This is to protect the citizens from all businesses of this nature,” Caesar said. “This does not single out one business — this legally applies to all businesses.”

Posted by Marcia Oddi on March 1, 2009 12:28 PM
Posted to Indiana Law

Courts - More on: Carl Malamud fights to improve Pacer

Updating this ILB entry from Feb. 13th, this story Feb. 27th from Wired, by Ryan Singel, reports a step in tthe right direction. From the story, headed "Lieberman Asks, Why Are Court Docs Still Behind Paid Firewall?"

The head of a powerful Senate committee wants the federal courts to explain why its online database still charges 8 cents a page for court documents, and why many of those documents still contain Social Security numbers and other sensitive information.

Sen. Joe Lieberman (I-Connecticut), who helms the Senate's government affairs committee, is annoyed enough that he bypassed the administrators of the system and sent a letter Friday straight to the Judicial Conference of the United States.

He's asking Judge Lee H. Rosenthal to explain why in the age of Google the Public Access to Court Electronic Records, or PACER, system isn't free for citizens. He'd also like to know why federal courts still aren't blacking out sensitive information in court documents as required in the 2002 E-Government Act (a piece of legislation dear to Lieberman).

Here is a lnk to Senator Lieberman's letter.

Posted by Marcia Oddi on March 1, 2009 08:47 AM
Posted to Courts in general

Ind. Gov't. - "Township jobs: all in the family"

Updating this ILB entry from Feb. 24th, quoting from the Indianapolis Star investigative series on township government, today's story by Tim Evans, Mark Alesia, Heather Gillers and Mark Nichols is subheaded: "In 617 townships examined, 2 out of 3 trustees had a relative on the payroll." A quote from the lengthy story:

Urban or rural, large or small -- whether the job pays a pittance or a pretty penny -- nepotism is a tie that binds Indiana's disparate 1,008 townships.

A continuing examination of township government by The Indianapolis Star shows that, based on a sample of 617 townships, two-thirds of trustees had a relative on the payroll.

In addition, those relatives received more than $1.4 million in taxpayer money -- a conservative estimate of the overall picture that, like other aspects of township government, is nearly impossible to ascertain because of the autonomy of trustees, lax oversight and inconsistent record-keeping.

More than 300 townships didn't file the payroll disclosure form required by the state and used by The Star to help determine family relationships in township government.

Numerous other examples of nepotism go uncounted because only spouses and dependents are required to be reported on conflict of interest forms -- a process that excludes parents, siblings, grandchildren and other extended family members from the overall tally.

In many townships, often in rural areas, nepotism is taken for granted as innocuous and even essential to running a low-budget, hyper-local operation.

But no matter how quaint the operation, when the family business is local government, it raises ethical issues, real and perceived: Is the trustee or board lining the pockets of friends and family? Are there other deserving applicants being shut out of the process? Is your son-in-law really the most competent person for the job? And, if not, are you willing to fire the father of your grandchildren?

Peggy Kerns, director of the Center for Ethics in Government, said family hires sometimes can make sense, but added, "Generally, when public money is involved, there should be a lot of effort to make (hiring) an open process."

The issue is front and center in the legislature. Senate Bill 512, which originally called for the elimination of township government, was amended and now includes a provision that ends nepotism in township government.

"Anytime you use taxpayers' dollars you have to have standards for employees and contracts," said Sen. Connie Lawson, R-Danville, the bill's author.

"It's for the protection of taxpayers."

The current anti-nepotism language in SB 512 can be seen on pp. 19-20 of the bill as it passed the Senate.

Posted by Marcia Oddi on March 1, 2009 07:11 AM
Posted to Indiana Government

Saturday, February 28, 2009

Ind. Decisions - 7th Circuit upholds $80,000 sanction against attorney in Illinois case

Shales, James v. Gen'l Chauffeurs is the opinion, written by Chief Judge Easterbrook. Read about it here in the ABA Journal news.

Posted by Marcia Oddi on February 28, 2009 08:24 AM
Posted to Ind. (7th Cir.) Decisions

Friday, February 27, 2009

Ind. Decisions - A number of transfers granted today

The transfer list will not be available until Monday, March 2, but the ILB has received notice of six transfer petitions granted today, Feb. 27th.

Jim Kovach v. Caligor Midwest -- 49A04-0707-CV-406 -- 2 Petitions both granted -- 2/27/09 -- This was a 29-page, 2-1, July 26, 2008 COA opinion. See ILB summary here - 5th case. From the facts: "Matthew was prescribed 15ml, or one-half of the Cup’s volume, of Capital of Codeine. Although Nurse Robinette stated that she gave Matthew only 15ml of Codeine, Jim, who was in the room at the time, testified that the Cup was completely full. Matthew drank all of the medicine in the Cup. At 11:20 a.m., he was discharged from Surgicare. Later that day, after arriving home, Matthew went into respiratory arrest. He was transported to Bloomington Hospital, where he was pronounced dead of asphyxia due to an opiate overdose. The autopsy revealed that Matthew’s blood contained between 280 and 344 nanograms per ml of Codeine, more than double the recommended therapeutic level of the drug."

Anita Inlow v. Jason Inlow -- 29A02-0712-CV-1039 -- 2/27/09 -- This was a 2-1, Sept. 18, 2008 COA opinion. See ILB summary here. "She argues that Indiana Code § 34-23-1-1 requires the payment of funeral and burial expenses from a wrongful death award to a decedent’s estate only where the award specifies what portion is attributable to funeral and burial expenses. Concluding that Inlow’s funeral and burial expenses were properly reimbursed to his estate, we affirm."

State v. Jason Cioch -- 79A05-0804-CR-218 -- 2/27/09 -- This is a NFP opinion from Dec. 11, 2008 that I'm sorry to have missed the first time around. Judge Robb wrote:

The State brings this interlocutory appeal following the trial court’s suppression of evidence of the result of a breathalyzer test. On appeal, the State raises a single issue, which we restate as whether the trial court abused its discretion when it suppressed the breathalyzer test result printout because it contained an incorrect time of day. Concluding that the State has failed to meet its burden of establishing the foundation for admitting the evidence, we affirm. * * *

The statute and regulations regarding the administration of the breath test and the admissibility of its results do not expressly contemplate the use of outside evidence to supplement the evidence ticket. The evidence ticket here contains inaccurate information regarding the time of the test. Because the State’s outside evidence cannot be used to cure the deficiency, the evidence ticket is not the result of approved techniques for administering the test nor is it an accurate record of the test. Therefore, the trial court did not abuse its discretion in suppressing use of the evidence ticket at trial.

R.Y. v. Marion County Dept' of Child Serv's -- 49A02-0804-JV-394 -- 2/27/09 -- This is a 16-page, NFP opinion from Oct. 31, 2008.

Elizabeth Thomas v. Blackford Cty Area BZA, Oolman Dairy. -- 05A04-0711-CV-731 -- 2/27/09 - This is a NFP opinion from July 25, 2008. See ILB summary here - last summarized case. From the opinion:

The evidence presented at the hearing demonstrated a genuine issue of material fact regarding Thomas’ standing. Pursuant to Ind. Code § 36-7-4-1003(a), Thomas has standing to file a petition for writ of certiorari if she is “aggrieved” by a decision of a board of zoning appeals * * * Viewed in Thomas’ favor, the evidence establishes an issue of fact as to whether Thomas will suffer unpleasant odors and a loss in property value. Therefore, resolution of the case under T.R. 56 was improper.

We remand to the trial court to afford the parties an opportunity to complete their presentation of evidence, if they have not done so already, and to render a decision on the merits. Reversed and remanded.

In addition, by a 3-2 order issued yesterday, the Court vacated its Sept. 23, 2008 grant of transfer in the case of Scottie Adams v. State of Indiana, stating, inter alia:

The Court of Appeals opinion reported as Adams v. State is no longer vacated under Appellate Rule 58(A) and is REINSTATED as Court of Appeals precedent.

The dissent, written by J. Boehm, in which J. Sullivan concurs, is 5 pages.

Posted by Marcia Oddi on February 27, 2009 03:51 PM
Posted to Indiana Transfer Lists

Ind. Decisions - One today from Tax Court

Todd S. and Dawn E. Coombes v. Washington Township Assessor, Hamilton County Assessor, et al, a 7-page opinion. - "Petitioners explain that in 2002 (before Bridgewater was created and before their land was even their land) the applicable 2002 neighborhood valuation form provided that unplatted, vacant rural land located just southeast of the intersection of 161 st Street and Carey Road in Carmel, Indiana was to be assessed at $35,000 for the first acre and $5,300 per acre beyond that. The Petitioners maintain that if local assessing officials believed some other value more accurately reflected the 2003 value of their lot specifically, and the lots in Bridgewater generally, they were required to amend the values set forth in the 2002 neighborhood valuation form. The Petitioners continue that in order to amend the form, local assessing officials were first required to give notice to taxpayers of those proposed values and an opportunity to be heard thereon. Because this was never done, the Petitioners contend that the Indiana Board erred when it failed to declare their assessment void and reinstate the land's 2002 assessed value of $42,000.

"The Court, however, disagrees. * * *

"Thus, as the Indiana Board properly concluded, there was no need for local assessing officials to amend the applicable 2002 neighborhood valuation form. (Cert. Admin. R. at 62.) As a result, the Petitioners' procedural due process rights have not been violated."

Posted by Marcia Oddi on February 27, 2009 12:58 PM
Posted to Ind. Tax Ct. Decisions

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

For publication opinions today (6):

Termination of Parent-Child Relationship of H.T.; Anthony Carbonatto v. Marion Co. Dept. of Child Svcs. - "Simply put, there is no need for the extreme measure of permanently terminating Father’s right to be a parent to his daughter. The trial court clearly erred in concluding that the State proved that H.T.’s well-being is threatened by her Father’s involvement in her life. We reverse and remand with instructions that the trial court vacate its termination order. "

Rosemary Dean v. William T. Pelham - "We grant the Estate’s petition for rehearing for the limited purpose of clarifying that we analyzed the designated evidence under the appropriate summary judgment standard of review, but used imprecise language in stating our conclusion. We hereby restate our conclusion in terms of the appropriate standard: The designated evidence does not raise a genuine issue of material fact as to William’s intent with regard to Dean’s survivorship rights. We affirm our opinion in all other respects. "

Tiffany Whitlow v. State of Indiana - "There is sufficient evidence to support the jury’s finding that H.W. suffered serious bodily injury." The opinion cites other cases where, for instance, " Under these circumstances, the Indiana Supreme Court found that a lacerated lip, a knee abrasion, and a broken pinky finger fell below the line of serious bodily injury." Here, however, H.W. "was a seven-year-old child."

In Bruce Jones v. State of Indiana, an 8-page opinion, Judge Barnes writes:

Bruce Jones appeals the denial of his motion for the reappointment of a special prosecutor. We reverse and remand.

The sole issue is whether the trial court properly denied Jones’s request for the
reappointment of a special prosecutor.

The record in this case is not clear. It appears that on October 23, 2006, the State charged Jones with Class D felony theft and alleged that he is an habitual offender. * * *

[W]e conclude that the original basis for appointing a special prosecutor—to avoid the appearance of impropriety—still existed, even after the dismissal of the impersonation of a public servant charge. The dismissal changed the form of the case against Jones, but the substance was largely unchanged. The trial court erred in not appointing another special prosecutor or, alternatively, permitting the appointed the special prosecutor to withdraw his appearance. * * *

We reverse and remand for the appointment of a special prosecutor in the forgery and theft cases against Jones.

Terry D. Dean v. State of Indiana - "Terry D. Dean appeals his convictions for two counts of dealing in cocaine as class B felonies.Dean raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion by admitting evidence of Dean’s uncharged misconduct; and II. Whether the trial court erred by denying Dean’s motion for discharge under Ind. Criminal Rule 4(C). We affirm. * * *

"Dean did not object to the setting of the May 21, 2007 trial date. In fact, on that trial date, he moved for a continuance. Nor did he object to the setting of the February 11, 2008 trial date on October 15, 2007. Rather, Dean waited until February 7, 2008, four days before the jury trial, to file his motion for discharge. Because Dean did not object to setting of these trial dates, any claim of a violation of Criminal Rule 4 resulting from the challenged congestion orders is waived. "

Richard Edward Faris v. State of Indiana - "This case required us to perform a delicate balance between ensuring that mentally disabled persons are not improperly denied their constitutional rights and not penalizing police for non-coercive conduct. Here, where Faris's interrogation did not take place in a custodial setting and the officers questioning him were unaware of his disability and did not engage in coercion, we cannot say as a matter of law that his confession was involuntarily given. We affirm the denial of Faris's motion to suppress. Affirmed. "

NFP civil opinions today (1):

In the Matter of A.J., A.M., and A.R.F. v. Vanderburgh Co. Dept. of Child Services (NFP) - "Alaina J. (“Mother”) appeals the involuntary termination of her parental rights, in Vanderburgh Superior Court, to her children, A.J., A.M., and A.R.F. On appeal, Mother claims the trial court abused its discretion when it denied her motion for a continuance. Concluding that the trial court’s denial of the motion to continue did not constitute an abuse of discretion, we affirm. "

NFP criminal opinions today (5):

State of Indiana v. Henry Anthony (NFP)

Mickey Whitlock v. State of Indiana (NFP)

Christopher Leachman v. State of Indiana (NFP)

Robert L. Wilson v. State of Indiana (NFP)

Andrew Detro v. State of Indiana (NFP)

Posted by Marcia Oddi on February 27, 2009 12:25 PM
Posted to Ind. App.Ct. Decisions

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

US v. Dunson (SD Ind., Judge Tinder), a 2-page, per curiam opinion, concludes:

Shortly after Dunson filed this appeal, we held in United States v. Spells, 537 F.3d 743, 752 (7th Cir. 2008), that the Indiana crime at issue is a “violent felony” for pur-poses of the Armed Career Criminal Act, see 18 U.S.C. §§ 924(e)(1), (2)(B)(ii). “Taking flight calls the officer to give chase,” we reasoned, and “dares the officer to need-lessly endanger himself in pursuit.” Spells, 537 F.3d at 752. Our decision was informed by Begay v. United States, 128 S. Ct. 1581 (2008), and is not undermined by the Supreme Court’s most recent application of Begay, see Chambers v. United States, 129 S. Ct. 687 (2009) (holding that passively failing to report for service of a criminal sentence is not a “violent felony”). Although Dunson was not sentenced as an armed career criminal, we interpret “violent fel- ony” as used in § 2K2.1 the same way as “crime of vio- lence” in § 924(e). See, e.g., United States v. Templeton, 543 F.3d 378, 380 (7th Cir. 2008). The district court thus prop- erly classified Dunson’s prior conviction for fleeing a police officer in a vehicle as a crime of violence. AFFIRMED.

Posted by Marcia Oddi on February 27, 2009 10:42 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Mishawaka loses bid to hold Uniroyal liable for Mishawaka’s clean up costs

Christopher A. Nuechterlein, United States Magistrate Judge for the ND Indiana, South Bend, ruled yesterday in a 14-page opinion, City of Mishawaka v. Uniroyal Holding, that begins:

All things must come to an end.

This litigation concerns approximately 43 acres of land located at 312 N. Hill Street in Mishawaka, Indiana, which for over one-hundred years was a manufacturing site. The Mishawaka Woolen Manufacturing Company, incorporated in 1874, became a subsidiary of the United States Rubber Company in 1922 and manufactured rubber footwear and other products at the Hill Street site. In 1967, the United States Rubber Company changed its name to Uniroyal, Inc.

The Hill Street site eventually encompassed 58 buildings, over 1.7 million square feet of industrial space, and employed nearly 10,000 workers. In April 1, 1997, industrial operations came to a halt at the Hill Street site.

The primary question presented in this lawsuit is whether the Defendant, Uniroyal Holding Inc., a corporate successor to various legal entities at the site, is legally obligated for various environmental clean up expenses at the Hill Street site. For the reasons stated in this opinion, this Court concludes that it is not.

Posted by Marcia Oddi on February 27, 2009 10:29 AM
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Decisions - "Reckless driving conviction reversed"

A story in the Brazil Times Thursday, reported by Ivy Jackson, about the Feb. 17th Court of Appeals NFP reversal in the case of Cody D. Wright v. State, a 4-page opinion by Judge Najam. Some quotes from the story:

According to court documents, at a time when local schools were letting out for the day and it was allegedly beginning to rain, Clay County Sheriff's Deputy Chris Robinson reported that he clocked Wright driving eastbound on County Road 1000 North at 62 miles-per-hour (mph) in a location officially posted at 35 mph.

Akers believed the speed of Wright's vehicle, coupled with the fact children could have been injured had he lost control of his vehicle and slammed into a school building or another vehicle traveling in the vicinity, was sufficient evidence to order a guilty verdict.

Examining Wright's prior driving record to the reckless driving charges while determining a sentence, in open court at the time of sentencing, Akers said he felt it showed Wright's propensity to ignore basic traffic laws and, therefore, warranted a maximum sentence.

The State of Indiana allows a judge to sentence a defendant to 180 days incarceration upon conviction of a class B misdemeanor reckless driving charge, which is what Akers did.

At the end of the trial, McGlone argued the Clay County Prosecutor's Office failed to provide adequate evidence to prove his client's guilt, which is why he appealed the judgment.

The Indiana Court of Appeals only reviews the probative evidence supporting a judgment and whether the facts presented during a trial proves a defendant was guilty beyond a reasonable doubt. If there is substantial evidence to support the conviction, the court of appeals will not set aside a verdict.

According to a Memorandum Decision filed by the court of appeals on Feb. 17, the transcripts from the bench trial were used to determine a ruling.

In order to prove reckless driving, the State was required to prove Wright recklessly drove a motor vehicle at such an unreasonably high rate of speed under the circumstances as to endanger the safety or the property of others.

While undisputed evidence clearly showed Wright was driving almost twice the legal speed limit, the court of appeals determined no evidence was presented proving he endangered the safety or property of others.

The judges overturned the verdict in the case because the evidence only shows the officer was concerned for the safety of children who were "about to be let out of school" and there was no proof that anyone was present and in actual danger at the time of Wright's speeding offense.

Posted by Marcia Oddi on February 27, 2009 10:21 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Two stories today in continuing, and confusing, Delaware County saga

Updating this ILB entry from Feb. 28th, Rick Yencer reports today under the headline "Indiana appeals court blocks McKinney contempt hearing." Some quotes:The Indiana Court of Appeals handed Delaware County Prosecutor Mark McKinney a legal victory Thursday, for the time being curtailing all further trial court proceedings stemming from Circuit Court 2 Judge Richard Dailey's probe of civil drug forfeiture cases.

That means Dailey will not conduct a hearing, set for today, on a request by attorneys for Mayor Sharon McShurley's administration that McKinney and Deputy Prosecutor Eric Hoffman be found in contempt of court.

The request was based on the prosecutors' failure to pay a $232,112 judgment, issued by Dailey, as reimbursement for legal fees and other money stemming from drug forfeiture cases.

The stay of all proceedings by Dailey -- in an order signed Thursday by John G. Baker, chief judge of the Court of Appeals -- indicates that any future hearings on law enforcement costs, non-cash assets and other forfeiture cares will remain on hold, subject to appellate court rulings on appeals of Dailey's earlier rulings.

Posted by Marcia Oddi on February 27, 2009 10:13 AM
Posted to Ind. App.Ct. Decisions

Courts - More on: Follow the McCafferty murder trial and the media's efforts to cover it via blog and otherwise

Nothing new from the "Reporter's Blog" (here), the latest entry right now is from Thursday afternoon. But court is due to reconvene at 9:30 AM.

Meanwhile, there has been action on the appeal. The Cincinnati Enquirer reports:

Newport -- Cameras for now will remain outside the courtroom where Cheryl McCafferty is on trial for the killing of her husband in 2007.

State Appeals Court Judge Michelle Keller on Thursday rejected a plea from three local television stations and NBC News for an emergency order to allow cameras back into the courtroom to broadcast the trial.

The appeal made by WLWT(Ch. 5) WCPO(Ch. 9) and WXIX(Ch. 19) remains on the docket but could take 20 days to be heard. The trial is expected to last three weeks.

Campbell County Circuit Judge Julie Reinhardt Ward on Monday ordered all electronic recording devices banned from the courtroom. Ward decided to ban cameras after attorneys for the television stations appealed the judge's prohibition on live video broadcasts on the Internet of testimony and live blogging of the trial.

Keller, in her order denying emergency relief, found the media has a right to attend the trial but does not have any more rights beyond that of the general public and no constitutional right to have testimony recorded and broadcast.

"While the order limited the means by which the media could have that access, it did not limit or prohibit access," Keller said.

The Enquirer (like the Kentucky Post) has its own special page devoted to coverage of the trial.

Posted by Marcia Oddi on February 27, 2009 09:44 AM
Posted to Courts in general

Environment - More on: "Indiana ash ponds pollute bird habitat, drinking water: Situation prompts look at coal-waste storage standards"

"Concerns over ash pond pollution grows" is the headline to a story today in USA Today, reported by James Bruggers. It is an expansion of his story that appeared Monday in the LCJ.

The focus of the story, which has several photos and a map, is the coal-ash pond of the Gibson County, Ind., Duke Energy coal plant. The story begins:

PRINCETON, Ind. — The danger of combustion waste from coal-fired power plants became big news in December, when a dam holding back a mountain of ash at a Tennessee Valley Authority plant collapsed, spreading a billion gallons of sludge over several hundred acres near Knoxville.

By the time that slide occurred, however, the problems that coal-ash residue can cause had already been part of life for nearly two years here at the site of the Gibson power plant, the nation's third-largest coal facility owned by Duke Energy.

Ash ponds — ponds filled with ash waste — at the Gibson plant tainted both a new wildlife sanctuary for endangered birds and the drinking water of the small community of East Mount Carmel in 2007. Two years later, the cleanup is still ongoing.

The problems here, as well as those in Tennessee and elsewhere, have environmental advocates calling for national standards for handling the massive quantities of ash and other coal-combustion wastes — more than 125 million tons a year, according to the American Coal Ash Association.

Posted by Marcia Oddi on February 27, 2009 08:16 AM
Posted to Environment

Ind. Decisions - "Justices weigh judge’s handling of $440,000 suit"

Yesterday's oral argument before the Supreme Court in the case of Rudrappa Gunashekar v. Kay Grose is the subject of a story today in the Fort Wayne Journal Gazette by Niki Kelly, headed "Justices weigh judge’s handling of $440,000 suit." The long and complex story begins:

NDIANAPOLIS – The Indiana Supreme Court struggled Thursday with whether an Allen Superior Court judge violated the rights of a couple in a civil case by denying a motion to continue the trial after their attorney withdrew.

The five justices heard oral arguments in a case in which Kay Grose sued Rudrappa Gunashekar and his wife, Jayashree Gunashekar, accusing them of stealing $130,196 from her company.

According to court documents, the lawsuit grew out of a 2002 fire at a commercial building owned by the Gunashekars. Rudrappa Gunashekar hired Grose and her company, America’s Affordable Housing, to repair the property.

In September 2002, an insurance company issued a check for $130,196, payable to Rudrappa Gunashekar and Grose. Gunashekar deposited the entire check in a bank account and made a partial payment to Grose. The check Grose was given was not honored.

Allen Superior Court Judge Nancy Eschoff Boyer found in favor of Grose in a 2007 bench trial – awarding $147,337 in payment and $296,520 in other damages.

Attorneys on Thursday laid out the timeline, which is crucial in the case.

Here is the Court of Appeals opinion from Aug. 12, 2008. Here is a link to access yesterday's oral argument.

Posted by Marcia Oddi on February 27, 2009 07:49 AM
Posted to Ind. Sup.Ct. Decisions

Thursday, February 26, 2009

Ind. Law - More on: "House weighing satellite voting bill"

Updating this ILB entry from Feb. 24th on HB 1423, Patrick Guinane reports this afternoon in the NWI Times:

A fix for the partisan Lake County voting feud that trudged through a half dozen courts last fall drew no dissent on its way out of the Indiana House late Wednesday.

State Rep. Vernon Smith, D-Gary, won a 99-0 vote for House Bill 1243 [ILB - sic, should be 1423] , which would require Lake County to operate early voting centers in Gary and Hammond during the 29 days prior to an election. The measure now moves to the Senate.

State law already requires Lake County to operate one early voting site in Crown Point and allows the county elections board to open additional centers through a unanimous vote.

The Democratic-controlled board deadlocked 3-2 along party lines last fall, but Democrats pressed ahead with additional early voting locations in East Chicago, Gary and Hammond.

Republicans challenged the move, but they couldn't find a county, state or federal judge to stop the early voting once it had begun.

Smith's legislation only would apply to counties with a population of more than 400,000 -- Marion and Lake. And within those counties it only would mandate early voting sites in cities with a population greater than 60,000.

That means the Lake County elections board still would need a unanimous vote to open an early voting center in East Chicago.

Posted by Marcia Oddi on February 26, 2009 06:23 PM
Posted to Indiana Law

Environment - Wood stoves and wood-fired outdoor boilers still a problem

The ILB has had dozens of entries, going back as far as Dec. 2005, on the regulation of wood-fired outdoor boiler in Indiana. IDEM originally was going to do it, then backed off and left local government to deal with the problem on its own.

Today WTCA Radio, "Marshall County and the surrounding area" had this item:

02/26/09 This week City Councilman Mike Delp brought forth an issue to the Common Council that a constituent recently brought to his attention.

Delp said, “I’m seeking your words of wisdom on wood burning stoves and the smoke issue they include.” He mentioned that the Council had discussed the issue a couple of years ago. He said that a resident living in the North Michigan Street area called complaining of the smoke that comes from the wood burners. Delp said they lady had her clean laundry hanging on her line and had to rewash it because of the smoke.

Councilman Chuck Ripley was on the Council when the issue was discussed several years ago. He said, “We looked at the issue and couldn’t see anything to tackle the wood burning units.”

Building Commissioner Keith Hammons explained that city code requires the smoke stack to be at least 2 feet higher than any roofline within 10 feet of the unit.

Delp said it appears that some citizens using the wood burners are not burning seasoned wood, but rather green pallets. He asked about the smoke being an air pollution issue.

No action was taken but the City Council may need to look for a solution if they receive more complaints.

What city is this? The story doesn't say, but I'd guess Plymouth.

Posted by Marcia Oddi on February 26, 2009 02:53 PM
Posted to Environment

Courts - Follow the McCafferty murder trial and the media's efforts to cover it via blog and otherwise

A murder trial underway in Newport, Kentucky - northern Kentucky, near Covington - is getting extensive coverage from the Kentucky Post and other media.

Reporter Jessica Noll provides "the minute-by-minute report of the Cheryl McCafferty murder trial" here. I have focused on only the entries dealing with the blogging/reporting issues, not the trial itself. Here is a quote from the first entry, from DAY ONE at 8:54 AM:

The courtroom, located at the Campbell County Courthouse on York Street in Newport, Ky., is on the second floor. The media is set up for the time being on the third floor, just down the hall from the jury lounge, awaiting further instruction and the start of what may be the trial of the year.

"Dateline NBC" is one of the national media outlets bringing attention to the trial. However, it’s the local outlets that are rearing to go. Local stations and newspapers are set up with laptops on legs, sitting in chairs, waiting to get the OK to start blogging their surroundings and the trial proceedings.

From 9:06 AM:

On behalf of several local media outlets Attorney Jill Meyer of Frost, Brown and Todd, has filed a motion to talk to Campbell County Circuit Court Judge Julie Reinhardt Ward about permitting the media the cover the trial, including live streaming video online as well as blogging on the local Web sites.

Currently, the media waits to hear what comes from that. According to Meyer, the judge would not hear a motion to allow Internet reporting, among other media items. Once the trial commences, Web reporters, without an order in place are placing their blogs and other content.

From 10:00 AM:

Judge To Hear Motion For Blogging:

While the trial hasn’t commenced, the judge will be hearing a motion from Attorney Jill Meyer on behalf of the media here today.

According to "Dateline" producer Maryanne Rotondi and our own 9News’ Bill Price, who are at the doors of the courtroom, the judge has suggested that she will try to pull all media coverage from this trial pending the Internet reporting requests.

They said that Judge Julie Reinhardt Ward does not want to allow Web media to report the testimony of witnesses as it’s said because she wants to both sides to have the opportunity for a fair trial. It is possible that she fears the jury and/or witnesses will not be fair if they hear testimony and comments after the fact because it could sway their testimony or decision in the end.

The jury; however, is instructed not to watch or read the media once they are seated as part of the jury, as to not get a bias view of the trial while serving as a jury member.

From 10:45 AM:

Attorney For Media Meets With Media:

Attorney Jill Meyer met with the media to give information regarding whether or not we would be allowed to blog from the courtroom, as well as post live moments to the Web as witnesses testify during the trial etc.

The judge at this time, Meyer relayed, has barred all cameras, still and video, from the courtroom as well as any blogging or reporting other than using a notepad and pencil.

"We were surprised at [her] reaction," said Meyer, who said they have filed with the court of appeals and hope to have a decision by today or Tuesday.

Meyer said that it sounds like we’re back in the 1950s.

"It’s a public courtroom for a reason—it’s the public’s right to know," she said. "She is restricting the right to do that."

We are, as the media, however, allowed to take detailed notes within the courtroom and then leave the courtroom to report the most up-to-date information.

From 1:46 PM:

Judge Calls Hearing Regarding Media In The Courtroom:

Judge Julie Reinhardt Ward called a hearing Monday afternoon after a motion was filed by Jill Meyer, the attorney representing WPCO-9, WCPO.com, KyPost.com, WLWT-5, WXIX-19 and WKRC-12.

The judge barred all cameras and computers from the courtroom earlier in the day. The hearing was regarding a motion to reconsider those actions, as Meyer stated that they were "unconstitutional" and "in violation of the 1st Amendment."

The public has the right to be in any public hearing—which was the point that neither party disagreed with. However, the judge has the right to use her own discretion when it comes to the order of her courtroom.

During the hearing, that lasted roughly 10 minutes, the judge told Meyer that she is spending too much time worried about the media and not enough time with the case. Earlier in the day she denied bloggers from local media outlets to have access to the courtroom with computers in-hand. She also did not want testimony from the witnesses live-streamed via the Web or recited in its entirety.

Furthermore, the judge stated in the hearing that the media could; however, use "snippets" of witnesses’ testimony. (Later Meyer questioned the media, how it’s possible to define "snippets" of testimony.)

Meyer "respectfully requested a change" in her decision regarding cameras and blogs, but during her request the judge shook her head no.

Judge Reinhardt Ward asked the attorney to define what ‘blogging’ is for her. She asked is it not gossiping over the Internet?

"It’s not gossip—it’s more immediate news," Meyer said. "News media has the ability to deliver information in a variety of ways." And by blogging, she said, media can get the news to the public faster.

Meyer continued, "The information is out there—to impose on the media’s 1st Amendment rights based on speculation is an injustice."

The judge, however, said that her duty is to balance both the 1st Amendment rights of the media and the order of her court. She said that this is what she has done and stands by her initial ruling.

"You can write ’til your heart’s content—[I need to] protect a fair trial," the judge said to Meyer and those sitting in the hearing. "I need to focus on them [case], that’s my job."

Representatives from local media outlets, as well as producers from both "Dateline" and "48 Hours" were sitting in on the hearing. One producer said for the record that their recording was for a later broadcast and therefore would not infringe on any testimonial issues or the witnesses’ rights. But they were denied with the rest of the media.

"I don’t want to be unfair to either side," Reinhardt Ward said. "No cameras in the courtroom—that’s the ruling of the court—have a nice day."

From 2:00 PM:

Meyer Talks To Media:

Attorney Jill Meyer talked with the media directly after the hearing long enough to tell us that she in deed would be filing an appeal. She said that the appeal might be on an expedited schedule—meaning that rather than wait for 20 days for a ruling, they may be able to get a temporary order allowing the media to have cameras and to write their blogs as planned.

She told the media that as of now, they could take notes in the courtroom and then move to the hallway and post their news and information to their Web sites as they see fit.

While a ‘stay’ is not realistic Meyer said, it would be the next request of the Appeals Court in Frankfort. A ‘stay’ in the case would delay the trial if granted; but with the need for a speedy trial in a criminal case, Meyer said it isn’t likely to be granted.

DAY THREE, 9:30 AM:

Appeal Filed For Media:

Jill Meyer, attorney on behalf of several local media outlets including KyPost.com, WCPO.com and 9News, has officially filed her appeal to the appeal’s court regarding Campbell County Circuit Court Judge Julie Reinhardt Ward’s decision banning blogging and cameras in the courtroom during the McCafferty trial.

As soon as we have word of a hearing scheduled or a new decision, we will let you know on KyPost.com and WCPO.com.

ILB - It is now DAY FOUR of the trial.

Here is a copy of the 10-page motion and memo filed Feb. 23 by the media with the trial judge.

Here is the 54-page Motion for Emergency Expedited Hearing and Intermediate Relief and related documents filed Feb. 24th by the media with the Kentucky Court of Appeals.

Posted by Marcia Oddi on February 26, 2009 02:20 PM
Posted to Courts in general

Ind. Courts - "Monroe to launch new truancy court"

A brief item today by Bob Zaltsberg of the Bloomginton Herald-Times:

Monroe County will announce Friday that it has launched a new truancy court. Juvenile Judge Steve Galvin has been presiding over the pilot program since November; the Board of Judges will make a formal announcement about the new court on Friday.

The project is a cooperative effort involving the Board of Judges, Monroe County Prosecuting Attorney Chris Gaal, the Monroe County Community School Corp., the Richland-Bean Blossom School Corp. and the Monroe County Probation Department.

Posted by Marcia Oddi on February 26, 2009 01:38 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 6 today (and 21 NFP)

21 COA opinions yesterday, 27 today -- it must be the end of the month ....

For publication opinions today (6):

In T.R. Bulger, Inc., et al v. Indiana Insurance Company, a 12-page opinion, Judge Robb writes:

Indiana Insurance Co. (“Indiana”) filed the underlying declaratory judgment action requesting that the trial court determine whether the insurance policy it sold to T.R. Bulger, Inc. (“Bulger”) covers losses sustained by a homeowner as a result of Bulger's faulty installation of a heating, ventilation, and air conditioning (“HVAC”) system. The trial court granted summary judgment in favor of Indiana and Bulger appealed. For our review, Bulger raises three issues, which we consolidate and restate as: whether the trial court erred when it granted summary judgment in favor of Indiana. Concluding that no genuine issue of material fact exists with respect to the issue of agency but that a genuine issue of material fact exists that precludes summary judgment with respect to the issue of coverage, we affirm in part, reverse in part, and remand.

In Kelly Daisy v. Brian D. Sharp, a 16-page, 2-1 opinion, Judge Najam writes:

Kelly Daisy (“Mother”) appeals from the trial court's order denying her petition to change the name of her minor daughter, M.S., to include Mother's surname. We address two issues on review: 1. Whether Mother waived for review the issue of whether Father established the presumption set out in the minor name change statute, Indiana Code Section 34-28-2-4(d). 2. Whether Father presented sufficient evidence to establish that statutory presumption. We reverse and remand. * * *

In summary, we conclude that Mother has not waived review of whether Father established the presumption in Indiana Code Section 34-28-2-4(d). Father bore the burden of establishing the presumption if he wished to invoke it. Mother was not obligated to point out defects in Father's case at the hearing. And in her motion to correct error, Mother argued that the trial court had misapplied the name change statute. That argument was sufficient to avoid waiver of whether Father had established the presumption.

We also conclude that the evidence does not support the trial court's implied finding that Father had established the presumption in Indiana Code Section 34-28-2- 4(d). To invoke the presumption, the party opposing a minor's name change must show that he is paying support and fulfilling his parental duties as ordered by a dissolution, child support, custodial decree, or parenting time decree. Ind. Code § 34-28-2-4(d). * * * Reversed and remanded.

MAY, J., concurs.
ROBB, J., dissents with separate opinion. [which begins on p. 11]

In Brad Lawson v. Rodney Hale d/b/a R.H. Equipment, a 14-page opinion involving the sale of a tractor and the Indiana Deceptive Consumer Sales Act, IC 24-5-0.5-1 to 24-5-0.5-12, Judge Riley concludes:

Based on the foregoing, we conclude that the trial court did not err in entering judgment in favor of Hale on Lawson's claims for violation of the IDCSA and for breach of the implied warranty of merchantability. However, the trial court did err by entering judgment in favor of Hale on Lawson's claim for fraud. Therefore, as to that claim only, we reverse the trial court's judgment and remand this cause with instructions to enter judgment in favor of Lawson and to determine Lawson's damages. Affirmed in part, reversed in part, and remanded.

In Kenneth Harrison v. State of Indiana , a 16-page opinion, Judge Crone writes:

Kenneth Harrison appeals his convictions for class A felony dealing in cocaine within 1000 feet of a public park and class B felony possession of cocaine within 1000 feet of a public park. We reverse in part, vacate in part, and remand with instructions. * * *

The State presented no evidence that any persons under the age of eighteen were present within 1000 feet of the University Park. Accordingly, we conclude that no reasonable fact-finder could find beyond a reasonable doubt either that Harrison was within 1000 feet of University Park more than briefly or that no persons under the age of eighteen were within 1000 feet of University Park. We therefore reverse Harrison's conviction for class A felony dealing in cocaine and remand with instructions to reduce the conviction to a class B felony and resentence him on this count. Based on the double jeopardy principles we discuss in the next section, we also remand to vacate Harrison's conviction for possession of cocaine, which would otherwise be reduced to a class D felony.

We next address sua sponte whether Harrison's conviction for possession of cocaine is barred by double jeopardy. See, e.g., Smith v. State, 881 N.E.2d 1040, 1047 (Ind. Ct. App. 2008) (“We raise this issue sua sponte because a double jeopardy violation, if shown, implicates fundamental rights.”). Here, the same cocaine was used to support Harrison's dealing and possession convictions. The only cocaine introduced into evidence was the cocaine found in the baggies Harrison delivered to Officer McGivern. No other cocaine was found on Harrison's person or in the baggie he threw while attempting to resist arrest. Our supreme court has concluded that where the same cocaine supports both possession of cocaine pursuant to Indiana Code Section 35-48-4-6 and dealing in cocaine pursuant to Indiana Code Section 35-48-4-1, possession of cocaine is a lesser included offense of dealing in cocaine. * * * Thus, Harrison may not be convicted and sentenced on both the greater and lesser offenses. Accordingly, we vacate Harrison's conviction for possession of cocaine.

In Gerald Young v. State of Indiana , a 5-page opinion, Judge Naam writes:

Gerald Young appeals his sentence following his conviction for Operating a Motor Vehicle While Intoxicated, as a Class D felony, and his adjudication as an Habitual Substance Offender. Young presents a single issue for our review, namely, whether the trial court erred when it imposed as a condition of probation that Young is prohibited from operating a motor vehicle. And we address another issue sua sponte, namely, whether Young’s sentence is illegal. * * *

Here, because a Class D felony serves as the underlying offense for the habitual substance offender adjudication, the sentencing range for that felony is enhanced such that the new sentencing range is three and a half years to eleven years. * * * Because the trial court ordered that all but 240 days of Young’s sentence would be suspended, that sentence is illegal. We remand to the trial court with instructions to order that three and a half years of Young’s eight year sentence be executed and that the remainder of the sentence be suspended to probation. See id. at 751. Affirmed in part, reversed in part, and remanded with instructions.

In Raphael L. Martin, Sr. v. State of Indiana , a 5-page opinion, Judge Brown concludes:

However, as the State notes, under Ind. Post-Conviction Rule 1(1)(c), “if a petitioner applies for a writ of habeas corpus, in the court having jurisdiction of his person, attacking the validity of his conviction or sentence, that court shall under this Rule transfer the cause to the court where the petitioner was convicted or sentenced, and the latter court shall treat it as a petition for relief under this Rule.” Consequently, rather than simply denying Martin’s petition for writ of habeas corpus, the trial court should have transferred the cause to the court where Martin was convicted and sentenced. * * *
For the foregoing reasons, we reverse the trial court’s denial of Martin’s petition for writ of habeas corpus and remand with instructions to transfer the cause to the court where Martin was convicted and sentenced.

NFP civil opinions today (4):

Yolanda M. Hollins v. Andrew R. Bell (NFP) - " Mother has not demonstrated that the trial court abused its discretion when it awarded Father physical custody of A.H. "

Gary Ray v. City of Indianapolis (NFP) - "Here, when it attacked Carroll’s dog, Ray’s dog was confined by a fence on Ray’s property. Although Ray’s dog was able to put its snout through a gap in the fence, we cannot say that, based on the evidence produced at trial, Ray’s dog was at a location other than Ray’s property when it bit Carroll’s dog. Accordingly, we conclude that the City failed to present evidence of a probative value from which a reasonable trier of fact could have found that Ray violated Section 531-102(c)(1). * * * Ray has made a prima facie case of error, and we therefore reverse the trial court’s judgment. "

Charles E. Perkins v. Michael Mitcheff, M.D., and Karla Foster (NFP) - "Perkins‟ complaint was not filed timely. Accordingly, the trial court did not err in granting Dr. Mitcheff‟s motion for summary judgment. "

Sentinel Alarm Systems, Inc. v. Erney's Lock & Key (NFP) - "In this small claims proceeding involving a debt for services rendered, Sentinel Alarm appeals a judgment against it and in favor of Erney’s Lock & Key in the amount of $1,590 plus costs. On appeal, Sentinel raises one issue, which we expand and restate as 1) whether the statute of frauds barred Erney’s small claims action and, if not, 2) whether the small claims court’s judgment in favor of Erney’s is clearly erroneous. Concluding that Erney’s action was equitable in nature and therefore not subject to the statute of frauds and that the small claims court’s decision to afford Erney’s equitable relief was not clearly erroneous, we affirm. "

NFP criminal opinions today (17):

In the Matter of Carlton Jenkins, witness for the State of Indiana, et al v. State of Indiana (NFP)

Daniel Richardson a/k/a Daniel Cockrell v. State of Indiana (NFP)

Amanda J. Cooper v. State of Indiana (NFP)

Dewayne Lodholtz v. State of Indiana (NFP)

Roger Stewart v. State of Indiana (NFP)

Deanna Clark v. State of Indiana (NFP)

Derrick Clark v. State of Indiana (NFP)

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

Robert Groft v. State of Indiana (NFP)

Richard E. Dabbs v. State of Indiana (NFP)

Z.S. v. State of Indiana (NFP)

Darrell McNary v. State of Indiana (NFP)

Ebony Burt v. State of Indiana (NFP)

Levi K. Moore v. State of Indiana (NFP)

Bernabe Ramirez v. State of Indiana (NFP)

Tony Mays v. State of Indiana (NFP)

Lamont Juarez Moore v. State of Indiana (NFP)

Posted by Marcia Oddi on February 26, 2009 12:09 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Training on new loan modification programs

"An Update on Foreclosure Prevention through Loss Mitigation and Loan Modifications," sponsored by Indiana Legal Services, Inc. the Indiana Supreme Court, and the Legal Aid Society of Southwest Ohio and the National Consumer Law Center, with support from the Indiana Housing & Community Development Authority and the Institute for Foreclosure Legal Assistance, will take place March 6th. More from the notice:

This 6.5 hour CLE (and CEU for housing counselors) will help you understand and leverage new loan modification programs driven by the current mortgage crisis. Topics include the prevalence of modifications in the current environment, new crisis driven workout programs, the mechanics of arranging a workout, working with servicers, tax consequences, credit repair, and working through a loan modification case study. Attorneys and housing counselors seeking to prevent foreclosures are the primary audience.

Cost for attorneys is $50.

A press release from the Supreme Court today begins:

Indiana attorneys will be trained to join the fight to help stem the mortgage crisis through pro bono representation. Chief Justice Randall T. Shepard recently announced a plan to train more judges and lawyers than any other state on how to deal with foreclosure cases. The massive training effort begins March 6th with a special education session dedicated to mortgage foreclosure issues that the Indiana Supreme Court is co-sponsoring along with Indiana Legal Services, Inc. and the Legal Aid Society of Southwest Ohio. At this training, and at others, the Indiana Supreme Court will offer scholarships to private attorneys who complete the training and agree to handle one mortgage foreclosure case on a pro bono basis.

The goal is to train hundreds of attorneys and judges across the state on how to help families in jeopardy of losing their homes. The program includes an effort to provide free legal help to homeowners in need of assistance. Chief Justice Shepard explained, “It makes sense that a person who is facing a financial burden so severe that they may lose their home cannot afford to hire an attorney to review their foreclosure case. That is why we are recruiting volunteer attorneys to help people who are in need of assistance.”

Posted by Marcia Oddi on February 26, 2009 08:38 AM
Posted to Indiana Courts

Ind. Courts - Settlement avoids judicial mandate action in Hammond

Susan Brown has this report today in the NWI Times:

HAMMOND | City Court Judge Jeffrey Harkin and the City Council have reached a settlement of the lawsuit filed by Harkin over the council's cuts to the court's 2009 budget.

Details of the settlement won't be revealed until Friday by mutual consent, according to Harkin's attorney, David Weigle, of Hammond.

At the beginning of court proceedings at 9:30 a.m. Wednesday, Lake Superior Court Judge Jeffrey Dwyan, citing concerns related to the open door issues given the public role of the council and the court, encouraged both parties to continue to try to reach agreement among themselves. A settlement was reached around 2:30 p.m.

Had the case reached a hearing before the judge, Harkin would have sought the court's approval of a judicial mandate to fund the court. According to Weigle, the Indiana Supreme Court has ruled city court judges, unlike Superior or Circuit Court judges, must seek a higher court's approval to impose a judicial mandate.

Harkin's suit contended the judge had sought a meeting with the council three days after the council's cutbacks to his budget, which resulted in the loss of four positions, including two public defenders. The public defender services were replaced by $30,000 in contractual services. The cutbacks also cost the court the services of one court referee and two deputy clerks.

The lawsuit had asked the court to order the council to fully fund Harkin's budget as it was requested, reinstate the deputy clerks and cover the court's legal expenses.

Posted by Marcia Oddi on February 26, 2009 08:29 AM
Posted to Indiana Courts

Ind. Courts - "What happens when a judge dies?" [Updated]

From the Anderson Herald Bulletin, this story by Justin Schneider, supplementing yesterday's story on the sudden death of longtime Madison County Judge David W. Hopper:

ANDERSON — While family, friends and colleagues mourn the loss of Judge David Hopper, the business of law and order continues in Madison County courtrooms.

“I met with Judge Hopper’s staff at 8 o’clock this morning and they were all troopers,” said Superior Court 1 Judge Dennis Carroll. “They know they have business to carry on. They’re grieving with one side of their brain and doing their jobs with the other side.”

At the risk of sounding insensitive, many in Madison County are wondering: What happens when a judge dies?

Basically, Carroll said, the Indiana Chief Justice Randall Shepard will appoint a temporary replacement until Gov. Mitch Daniels names a permanent replacement.

“The (Indiana) Supreme Court will issue an order naming a judge pro-tem for a continuing basis,” Carroll said. “That’s what always happens if you have a judge die in office. You get somebody to step in immediately and manage the docket until the governor, who has ultimate responsibility, can name a replacement.”

Carroll said judges are elected on the county level, but are actually part of the state judiciary, making their appointment the governor’s responsibility. He said retired judges are often tapped for temporary judgeships and mentioned the recent retirement of Superior Court 2 Judge Jack Brinkman.

“It’s premature to speculate about that, but he will probably allow interested parties to make themselves known,” Carroll said. “There could be an interview process, but naming a successor could take a month or two.”

Immediately, Carroll said, local attorney Geoff Yelton has been tapped to handle the cases on Hopper’s docket. Jury selection was set to begin Thursday on a case in his court, but the trial has been canceled for now. Superior Court 3 Judge Thomas Newman will preside over drug court on Thursday.

Carroll will assume Hopper’s role as chief judge, a rotating assignment that puts the judge in charge of ancillary services of the courts system. Carroll served as chief judge in 2008 and the assignment reverts back to him because the judgeship became vacant before June 1. Had it become vacant after June 1, the chief judge assignment would fall to the 2010 chief judge.

[Updated] See also this story from the Bulletin, headed "Drug Court part of Hopper’s legacy."

Posted by Marcia Oddi on February 26, 2009 08:16 AM
Posted to Indiana Courts

Ind. Gov't. - State of Indiana employee salaries

The Indianapolis Star has updated its database of State of Indiana salaries to cover 2008.

Under Ivy Tech, for example, you will find House Speaker Pat Bauer, $118,450 and former President Pro Tem, $122,000, as well as Craig Fry, $114,490. Fry is also listed as Indiana General Assembly, $41,954, and Patrick Bauer as Indiana General Assembly, $46,216.

Posted by Marcia Oddi on February 26, 2009 07:27 AM
Posted to Indiana Government

Wednesday, February 25, 2009

Law - Dawn Johnsen questioned by Senate committee [Updated]

The confirmation hearing for Indiana University law professor Dawn Johnsen was today.

The Blog of LegalTimes has this report today - some quotes:

The nominee to lead the Office of Legal Counsel faced questions today about the same set of issues that occupied the office under the Bush administration: the legal limits of the executive branch in preventing terrorism.

Senators asked Dawn Johnsen (above), a law professor at Indiana University at Bloomington, to explain her views on detaining potentially dangerous combatants, on interrogation techniques, and on the confidentiality of OLC opinions related to national security. She has been a vocal critic of the office's work during the last eight years.

The Washington Independent had several stories during the day.

Here are earlier ILB entries on Professor Johnsen.

[Updated 2/26/08] See the article by Dahlia Lithwick of Slate, headed 'Thou Shalt Not Blog: Obama's OLC Nominee discovers the perils of "blogging, advocating, and speeching.'" It concludes:

But for those of us who have become accustomed in the past weeks to being grateful for half a loaf, Johnsen offers up three-quarters. She says torture is illegal and water-boarding is torture. She clarifies that the president may not order torture if duly enacted laws prohibit him from doing so. She opposes presidential abuse of signing statements. She says the OLC should have a preference for transparency. She pledges not to halt or interfere with the release of the impending Office of Professional Responsibility report about the competence of previous OLC opinions. And When Sen. Whitehouse describes the previous administration's OLC as "Dick Cheney's Little Shop of Legal Horrors," she cracks a grin.

"Justice Dept. Nominee Avoids Confrontation at Hearing" is the headline of this story today by Neil A. Lewis of the NY Times.

Posted by Marcia Oddi on February 25, 2009 06:36 PM
Posted to General Law Related

Courts - More on: Some Legal Experts Propose Limiting SCOTUS Justices' Powers, Terms

Updating this ILB entry from Feb. 23rd, NPR's Talk of the Nation today featured the four proposals for the judiciary.

The program is 17 minutes long. And here is a link to the text of the proposals for change.

Posted by Marcia Oddi on February 25, 2009 06:25 PM
Posted to Courts in general

Ind. Law - Several bills mentioned by ILB pass first house

"Pause of welfare rollout approved by House " reports Bryan Corbin. HB 1691

"Livestock bills move to Senate: Efforts to regulate concentrated animal feeding operations get bipartisan support in House," reported by Pam Tharp. HB 1074 and 1075.

"Senate approves a 6th Court of Appeals District" SB 35. See fiscal note here.

"Senate OKs bill for online voter registration for Hoosiers." From the AP. SB 534

"House unanimously OKs bill creating ombudsman" to review the deaths of children in the state's custody. From the Indy Star, HB 1602.

Posted by Marcia Oddi on February 25, 2009 04:50 PM
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 4 today (and 17 NFP)

For publication opinions today (4):

In William Lee Pallett v. State of Indiana , a 7-page opinion, Judge May writes:

Pallett asserts: (1) the Department of Correction “turned him over” to the Monroe County Jail, thus discharging his life sentence; and (2) because he was discharged from the Monroe County Jail in January 2003, there was no parole to revoke in October 2003. * * *

The Parole Board did not use the term “turn over” in Pallett‟s case and did not evidence any intent to discharge him from his life sentence. * * *

Because Pallett was not “turned over,” he was on parole from his life sentence while he was serving his sentence in Monroe County, and he was continuously on parole from the time he was handed over to the Monroe County Sheriff until his parole was revoked. * * *

Relying on Metcalf, Pallett argues he was “turned over” and discharged because the Parole Board did not use language specifically preserving his life sentence. * * *

Relying on the exhibits Pallett attached to his petition, the Parole Board demonstrated that it did not use “turn over” language and did not otherwise indicate Pallett was discharged from his life sentence. Pallett designated no evidence to the contrary. Therefore, the trial court did not err by granting summary judgment. Affirmed.

Jimmie C. Smith v. Champion Trucking Co. Inc. - "Jimmie C. Smith (“Smith”) appeals the dismissal of his Application for Adjustment of Claim with the Indiana Worker’s Compensation Board (“Board”). We reverse and remand.

"The sole issue presented is whether Smith’s worker’s compensation application was properly dismissed pursuant to the subrogation portion of the Indiana Worker’s Compensation Act (“the Act”), Indiana Code Section 22-3-2-13, after Smith settled his claim against a third-party tortfeasor."

Gloria Benefield v. State of Indiana - "Appellant/Defendant Gloria Benefield appeals following her conviction for Class C felony Forgery. Benefield contends that the State failed to produce sufficient evidence to sustain her conviction, that the trial court abused its discretion in instructing the jury, that the trial court abused its discretion in sentencing her, and that her sentence is inappropriate in light of the nature of her offense and her character. We affirm. "

In E. Lee Warren, et al v. IOOF Cemetery, et al, an 8-page opinion, Judge Bailey writes:

Four of the surviving children of Sherman Warren (“Sherman”) and Isabella Warren (“Isabella”), E. Lee Warren, Lilly Frayer, Ester Hensley, and Arlie Warren (“the Warren Plaintiffs”) brought an action challenging a 2005 disinterment of Sherman’s remains, naming as defendants their siblings Betty Jo Ball, Mae Wilson, Mary Collins, Martha Brewer, Lizzie Hartig, Mat Warren, and Julie Schoff, IOOF Cemetery, David C. Van Gilder, as guardian of Isabella, and the Indiana State Department of Health (collectively, “the Warren Defendants”). The defendants were granted summary judgment. We affirm.
The Warren Plaintiffs state six issues for review, which we consolidate and restate as a single issue: whether summary judgment was properly granted to the Warren Defendants.

Sherman died in 1970 and was buried in a cemetery in Barbourville, Kentucky, where Isabella also planned to be buried. Isabella moved in with their youngest daughter and lived with her until the daughter died and was buried in IOOF Cemetery in New Haven, Indiana. In May of 2005, pursuant to the grant of a Kentucky disinterment permit, Sherman’s remains were disinterred and moved to IOOF Cemetery.

On March 8, 2006, the Warren Plaintiffs filed their “Complaint for Declaratory Judgment and to Set Aside Authorization for Disinterment of Remains of Sherman Warren” in the Allen Superior Court. The Warren Plaintiffs alleged that Isabella suffered from advanced Alzheimer’s and that her authorization for disinterment was wrongfully procured. * * *

Isabella died on October 17, 2007, and was buried next to Sherman and their daughter in Indiana. The Warren Defendants moved for summary judgment, which was granted. The Warren Plaintiffs appeal. * * *

Indiana Code Section 23-14-57-1 specifies persons having authority to consent to disinterment, including surviving adult children. However, a person specified in the disinterment statute does not have an absolute right to disinter remains as a matter of law, and rights of others who oppose disinterment may be considered. * * *

Here, the parties have disputed whether Isabella was able to freely and carefully consider the propriety of moving Sherman’s remains from Kentucky in 2005. They do not, however, contest any fact relative to the present circumstances of interment. We assume, consistent with the Warren Plaintiffs’ factual contentions, Isabella suffered from Alzheimer’s during her later years and may not have been fully aware of the implications of some actions or decisions. Nevertheless, Isabella consistently expressed her desire to be buried beside her husband.

Sherman and Isabella are buried beside each other in a public cemetery. One particular location cannot be equally accessible to each of the eleven surviving children as they now live in diverse locations. However, there is no indication that any surviving child would be hampered in his or her efforts to visit the gravesites. The trial court found “no justification” for disinterment. We agree that the summary judgment record does not reveal any compelling reason to disinter the remains of two individuals, one of whom died over thirty-eight years ago. The trial court’s exercise of its discretion was not contrary to the facts and circumstances before it. Affirmed.

NFP civil opinions today (4):

Home Bank S.B. v. U.S. Bank National Association, assignee of Franchise Mortgage Acceptance Co., LLC (NFP)

Troy Faulkenburg v. Gerald Austin Nance (NFP) - "Troy Faulkenburg appeals the trial court’s judgment awarding damages to Gerald Nance for conversion of Nance’s propane gas tank and timber, unpaid rent, damage to
Nance’s real estate, and Nance’s attorney fees and travel expenses. Faulkenburg argues the trial court erred by denying his counterclaim and the evidence does not support the award of damages to Nance. We affirm. "

Techcom, et al v. Telematrix (NFP), a 24-page opinion. "In this appeal, Mantyla, Louden, and Techcom appeal a judgment in favor of Telematrix for money damages after the latter prevailed on the theories of breach of fiduciary duty and tortious interference with a business relationship with Cummins. The Appellants present the following consolidated and restated issues for review:
1. Did the trial court commit clear error in determining that Louden breached his fiduciary duties to Telematrix?
2. Did the trial court commit clear error in concluding that Mantyla and Techcom tortiously interfered with Telematrix‟s business relationship with Cummins?
3. Did the trial court err in awarding $152,577.17 in damages to Telematrix?
We affirm."

Brian Magill and Magill Builders, LLC v. Justin and Amanda Lutz (NFP) - "In sum, the trial court erred in requiring a written work order to modify the contract. In contrast to the trial court’s conclusion, the parties modified the contract to include a larger laundry room for fifteen hundred dollars. On remand, we direct the trial court to enter the appropriate finding and recalculate the breach of contract damages accordingly. Despite this modification, the evidence supports the conclusion that Magill’s actions constituted an anticipatory breach of the contract. Furthermore, the trial court was correct in refusing to award damages to Magill and determining that Brian and the LLC committed fraud. "

NFP criminal opinions today (13):

Jeremy Scott Merritt v. State of Indiana (NFP)

Antonio J. Ray v. State of Indiana (NFP)

Rosevelt (Roosevelt) Hamilton v. State of Indiana (NFP)

Randall C. McSwain v. State of Indiana (NFP)

In Re: The Commitment of D.C. v. State of Indiana, et al. (NFP)

James Suttle v. State of Indiana (NFP)

Sedrick Lamont Curtis v. State of Indiana (NFP)

Raymond Cassidy v. State of Indiana (NFP)

C.L. v. State of Indiana (NFP)

Juan M. Garrett v. State of Indiana (NFP)

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

John Korp v. State of Indiana (NFP)

Teresa Hittson v. State of Indiana (NFP)

Posted by Marcia Oddi on February 25, 2009 01:45 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Longtime Madison County Judge David W. Hopper is dead after an apparent heart attack late Tuesday night"

From the Anderson Herald Bulletin, this story:

ANDERSON — Longtime Madison County Judge David W. Hopper is dead after an apparent heart attack late Tuesday night. He was 60.

Doug Long, an local lawyer and Hopper’s brother-in-law, said Hopper suffered a “massive heart attack” some time around midnight at his home in Anderson. He said Hopper was in excellent health and his death comes as a shock to the family. * * *

Madison County Commissioner Paul Wilson, D-South District, said the flag at the Madison County Government Center had already been lowered.

“He had a long service with this county that should be honored as we intend to,” Wilson said.

Wilson said Hopper was the chief judge of Madison County’s unified court system, meaning he had administrative duties related to every court, and the responsibility of the chief judge will revert back to Judge Dennis Carroll.

Posted by Marcia Oddi on February 25, 2009 01:35 PM
Posted to Indiana Courts

Courts - Yet another update on efforts to receive compensation for land taken to build Kentucky Camp Breckenridge

This April 20, 2008 ILB entry reported success for Kentucky families' "long legal fight to get compensation for land taken from their families by the federal government to make way for a World War II training camp." It quoted an Evansville Courier & Press story that began:

LOUISVILLE, Ky. — A federal judge has recommended a $34.3 million award to a group of former landowners in Western Kentucky whose property was taken to create a World War II-era military training post.

Judge Susan Braden of the U.S. Court of Federal Claims in Washington, D.C., recommended that Congress appropriate at least $34,303,980.42 in restitution for land and mineral rights lost by the landowners when the government appropriated their land to create Camp Breckinridge.

Braden issued a 53-page ruling late Friday, saying the amount represents only 27 percent of the $127 million benefit the government received from taking the land and mineral rights.

But according to an AP story by Brett Barrouquere, today a 3-judge panel of the U.S. Court of Claims dismissed that recommendation. From the story:

Former western Kentucky landowners and their families are not entitled to compensation for property taken by the U.S. government to build a military camp at the start of World War II, a federal court said in 2-1 ruling Wednesday, ending a 15-year legal battle in the case. * * *

Wednesday's ruling dismisses a recommendation by another judge on the court that the former landowners receive at least $32 million.

Judges Lawrence S. Margolis and Loren A. Smith wrote a 20-page decision that "any award to the Claimants would constitute a gratuity" and recommended Congress be advised that they should receive nothing. * * * *

Judge Charles Lettow dissented in a 41-page opinion, saying he would recommend at least a $22 million award to any landowner or heir who did not pursue a legal claim at the time the property was taken.

"The former landowners assiduously pursued their claims through petitions to executive departmental officials, litigation and petitions to Congress," Lettow wrote. * * *

The federal government declared Camp Breckinridge land surplus in 1962 and sold off the mineral rights and surface land, over the objections of the former landowners.

Posted by Marcia Oddi on February 25, 2009 01:18 PM
Posted to Courts in general

Ind. Courts - Two stories today in continuing, and confusing, Delaware County saga

Rick Yencer of the Muncie Star-Press reports here under the heading "McKinney asks appeals court to stop possible citation." The story begins:

Delaware County Prosecutor Mark McKinney and a deputy on his staff are asking the Indiana Court of Appeals to stop possible contempt citations over their failure to return attorney fees and cash from civil drug forfeiture cases.
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The latest bid by McKinney and Deputy Prosecutor Eric Hoffman to avoid paying a combined judgment of $232,112 -- awarded to local government by Delaware Circuit Court 2 Judge Richard Dailey -- also seeks to derail efforts by the city of Muncie to enforce Dailey's order.

Attorneys Kevin McGoff, representing McKinney, and Kelly Bryan, representing Hoffman, asked the appeals court to strike the city's motion and stay any trial court action and to set a hearing or pre-trial conference before a contempt hearing set for Friday in Dailey's court.

"It is further requested ... that the trial court be specifically stayed from taking any further action whatsoever in connections with the underlying matter or matters pending final resolution of the appeal in this case," the motion read.

A second Yencer story today, headed "Contempt citation wouldn't force McKinney from office," reports:

Should Delaware Circuit Court 2 Judge Richard Dailey find Mark McKinney in contempt of court and send the Delaware County prosecutor to jail, it would not make McKinney ineligible to remain in office, a state court official said Tuesday.
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Dailey has scheduled a Friday hearing on a request by city attorneys that McKinney and Deputy Prosecutor Eric Hoffman be held in contempt for not paying a judgment of more than $230,000 in legal fees and cash from civil drug forfeitures.

Donald Lundberg, executive secretary for the Indiana Supreme Court's disciplinary commission, said Tuesday that a trial court's finding of contempt would not prevent a prosecutor from holding office.

"It would require a loss or suspension of law license, something that only the Supreme Court can do (under the Constitution) to cause the prosecutor to be disqualified to act in office," Lundberg said.

Lundberg declined to comment on whether a contempt finding would trigger disciplinary commission involvement.

Posted by Marcia Oddi on February 25, 2009 12:59 PM
Posted to Indiana Courts

Ind. Courts - S0uth Bend Tribune editorial opines on judicial mandates

For background, see these earlier ILB entries titled "St. Joseph County Probate Judge to issue pay raises despite council's objections."

From today's South Bend Tribune, this editorial, headed "Judge holds winning hand."

The St. Joseph County Council and the Board of Commissioners should drop their resistance to St. Joseph Probate Judge Peter Nemeth's judicial order that pay raises for his employees be reinstated in his budget for the Juvenile Justice Center. There are two good reasons:

First, Nemeth can justify the raises, even in these budget-cutting times. And second, state law permits the judge to mandate needed expenditures.

If the council and commissioners appeal Nemeth's order, they very likely will lose, but not before they have spent thousands in taxpayer money on court and attorney fees.

Nemeth has made his case that court and JJC staff have been substantially underpaid in comparison to their counterparts in other courts. Those whose pay levels are covered by state statute have received raises.

As the judge also has noted, the money for the raises wouldn't come from property tax funds. It would come from the County Juvenile Probation Services Fund. Although Nemeth must seek the approval of the council and commissioners to spend the money, the council and commissioners don't really have the power to deny his request if the judge determines the expenditures to be necessary for the operation of the juvenile justice system.

Similarly, Nemeth must seek the council and commissioners' approval to move money from one fund to another — money left over from a previously budgeted purpose. That is the subject of a second order of mandate he filed Feb. 4.

Nemeth wants to redirect some unspent money — about $400,000 — to remodel and furnish a portion of the JJC in order to make better use of it. Although the council unanimously approved the request, purchase requisitions totaling nearly $314,000 were denied by Commissioner Robert Kovach, D-2nd. Nemeth's mandate overrules Kovach's denial.

We hope the county council and commissioners aren't seriously considering spending taxpayer money to appeal this one, either. Again, they likely would lose.

Which brings us to the final order of mandate Nemeth presented to the council and commissioners on Feb. 4. They may not, he has declared, sell land behind the JJC. Ivy Tech Community College has expressed interest in it.

We don't know whether county officials have the authority to sell the land east of the JJC or not. It is Nemeth's opinion that doing so would violate the original bond issue, secured to provide a juvenile detention center.

The fact is, Nemeth has plans for that land — possibly building youth residences there one day. Ivy Tech needs room for expansion, too, but the community college would have more expansion options than the JJC. We agree with Nemeth that, if there is a related future need for the land, then it ought to stay part of the juvenile detention property.

If what really is troubling the commissioners is the larger issue — Nemeth's mandate power and the fact that he does not defer to them on the use of money that he can control — then they need to be talking to the Indiana General Assembly. That is where the code that is the basis of Nemeth's authority was written. In the meantime, they should fold on these three issues.

Posted by Marcia Oddi on February 25, 2009 12:50 PM
Posted to Indiana Courts

Law - "Citing Cost, States Consider End to Death Penalty"

That is the headline to this lengthy NY Times story today by Ian Urbina. Some quotes:

When Gov. Martin O’Malley appeared before the Maryland Senate last week, he made an unconventional argument that is becoming increasingly popular in cash-strapped states: abolish the death penalty to cut costs.

Mr. O’Malley, a Democrat and a Roman Catholic who has cited religious opposition to the death penalty in the past, is now arguing that capital cases cost three times as much as homicide cases where the death penalty is not sought. “And we can’t afford that,” he said, “when there are better and cheaper ways to reduce crime.”

Lawmakers in Colorado, Kansas, Nebraska and New Hampshire have made the same argument in recent months as they push bills seeking to repeal the death penalty, and experts say such bills have a good chance of passing in Maryland, Montana and New Mexico. * * *

Capital cases are expensive because the trials tend to take longer, they typically require more lawyers and more costly expert witnesses, and they are far more likely to lead to multiple appeals.

In New Mexico, lawmakers who support the repeal bill have pointed out that despite the added expense, most defendants end up with life sentences anyway.

That has been true in Maryland. A 2008 study by the Urban Institute, a nonpartisan public policy group, found that in the 20 years after the state reinstated the death penalty in 1978, prosecutors sought the death penalty in 162 felony-homicide convictions, securing it in 56 cases, most of which were overturned; the rest of the convictions led to prison sentences.

Since 1978, five people have been executed in Maryland, and five inmates are on death row.

Opponents of repealing capital punishment say such measures are short-sighted and will result in more crime and greater costs to states down the road. At a time when police departments are being scaled down to save money, the role of the death penalty in deterring certain crimes is more important than ever, they say. * * *

States are looking elsewhere as well.

Last year, in an effort to cut costs, probation and parole agencies in Arizona, Kentucky, Mississippi, New Jersey and Vermont reduced or dropped prison time for thousands of offenders who violated conditions of their release. In some states, probation and parole violators account for up to two-thirds of prison admissions each year; typical violations are failing drug tests or missing meetings with parole officers. * * *

As prison crowding has become acute, lawsuits have followed in states like California, and politicians find themselves having to choose among politically unattractive options: spend scarce tax dollars on expanding prisons, loosen laws to stem the flow of incarcerations, or release some nonviolent offenders.

The costs of death penalty cases can be extraordinarily high.

The Urban Institute study of Maryland concluded that because of appeals, it cost as much as $1.9 million more for a state prosecutor to put someone on death row than it did to put a person in prison. A case that resulted in a death sentence cost $3 million, the study found, compared with less than $1.1 million for a case in which the death penalty was not sought.

The Times has this graphic on the cost of capital cases.

The ILB has had several earlier entries on the costs of death penalty cases. They have mainly focused, however, on the costs of trial and retrial at the local level. The Muncie Star-Press had a long story on Sept. 28, 2008 (ILB entry here) on "the role that a county's financial status plays in whether a local prosecutor pursues a death sentence." Unfortunately the story itself is no longer available.

This ILB entry from Feb. 17, 2008, headed "Wilkes trial costs adding up," also has links to entries about the Rios and Camm trials.

This ILB entry from Nov. 5, 2006, looks at Indiana's death penalty legal costs at the appellate level.

Posted by Marcia Oddi on February 25, 2009 08:01 AM
Posted to General Law Related

Tuesday, February 24, 2009

Ind. Law - Strengthened public records law passes Senate

Eric Bradner and Bryan Corbin of the Evansville C&P update us on that and some other bills here this afternoon.

Posted by Marcia Oddi on February 24, 2009 02:21 PM
Posted to Indiana Law

Courts - Justice Ruth Bader Ginsburg does not return quietly

Many stories today about the return of Supreme Court Justice Ruth Bader Ginsburg (aka "the only woman justice") to the bench yesterday.

"Justice Ginsburg Returns to Work: Less Than 3 Weeks After Cancer Surgery, She Is an Active Participant on the Bench" is the headline to the Washington Post story by Robert Barnes.

"On Return to Court, Ginsburg Is Quick to Question," is the heading to the Adam Liptak report in the NY Times.

"Ginsburg returns to high court after surgery" is the headline to Joan Biskupic's story in USA Today.

Posted by Marcia Oddi on February 24, 2009 01:23 PM
Posted to Courts in general

Ind. Courts - Muncie mayoral election dispute set for oral argument

The Muncie mayoral election dispute has been set for oral argument by the Court of Appeals, sua sponte, for April 14 at 5 pm at Purdue University. The case is Mansfield v. McShurley. The briefs are available here. Here is a list of earlier ILB entries.

Posted by Marcia Oddi on February 24, 2009 01:05 PM
Posted to Indiana Courts

Law - "New Rule Enacted by Bush Administration Impedes Cases Against Nursing Homes"

Cindy Skrzycki, business columnist for the Washington Post, reports today in her column, "The Regulators," that:

The Bush administration shut off a source of information last fall about abuse and neglect in long-term care facilities that people suing nursing homes consider crucial to their cases.

The change, which affects the $144 billion nursing-home industry, was enacted with no public notice or attention.

"This is pretty stunning," said Mark Kosieradzki, a plaintiff attorney in Plymouth, Minn. "Nobody was told. It was just done."

The rule designates state inspectors and Medicare and Medicaid contractors as federal employees, a group usually shielded from providing evidence for either side in private litigation.

The restrictions affect about 16,000 nursing facilities and 3 million residents in the United States. The practical effect is to force litigants to go to greater lengths, including seeking court orders, to get inspection reports or depositions for cases they are pursuing or defending. * * *

The effect of the directives has started to play out in the nation's courtrooms. Requests for information, once fairly routine, now are stalled between state and federal officials.

Anne Marie Regan, an attorney with the Kentucky Equal Justice Center, a nonprofit poverty legal advocacy and research center, said the change has slowed a case she is pursuing on behalf of an 85-year-old man who was evicted from a nursing home in 2007.

Priscilla Shoemaker, legal counsel for the American Health Care Association in Washington, said nursing homes "are in the same boat" because they also have difficulty getting information on how state inspectors determine penalties, citations and orders to shut down homes.

Posted by Marcia Oddi on February 24, 2009 12:57 PM
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Charles Dwayne Gilliam v. State of Indiana , an 11-page opinion, Judge Darden writes:

[Gilliam argues] that his non-support of his eight dependent children constituted a single episode of criminal conduct. We cannot agree. * * *

Gilliam appears to confuse the notion of a “continuous” obligation to pay child support with the concept of multiple events constituting a “single episode of conduct.” Boss, 702 N.E.2d at 784; Williams, 891 N.E.2d at 624. The facts herein reveal that when Gilliam failed, during the applicable periods between January 1, 2001, and December 31, 2004, to pay court-ordered child support, three separate and distinct households (with different sets of victims) were deprived of support for dependent children. * * *

Based upon the foregoing facts, Gilliam has not demonstrated that his offenses constituted a single episode of criminal conduct. Thus, we conclude that the trial court did not err in imposing consecutive sentences. * * *

In our view, Gilliam has failed to advance any discernible argument regarding the nature of his non-support of dependent children offenses or his character. Thus, we find that he has failed to present a cogent argument in support of this claim and has, therefore, waived the issue. See Ind. App. Rule 46(A)(8)(a).

Gilliam argues that his sentence is inappropriate pursuant to Indiana Appellate Rule 7(B). * * *

Gilliam's failure to provide child support for his eight dependent children with three different women and his extensive criminal history reflects strongly upon his character which shows disrespect for the law and/or an unwillingness to conform his behavior to socially-acceptable norms. After considering the nature of the offenses and the character of the offender, we cannot say that Gilliam's sentence is inappropriate.

In Michael W. George v. State of Indiana , a 13-page opinion, Judge Robb writes:

Following a bench trial, Michael George appeals his conviction of possession of a controlled substance, a Class D felony. On appeal, George raises one issue, which we restate as whether the trial court properly concluded that the seizure of morphine tablets during a warrantless search of George's vehicle did not violate the Fourth Amendment of the United States Constitution or Article I, Section 11, of the Indiana Constitution. Concluding the trial court properly concluded the search did not violate either constitutional provision, we affirm. * * *

The State concedes Deputy Chandler‟s inventorying of the vehicle was a search and that it was conducted without a warrant. As such, Deputy Chandler‟s search was per se unreasonable, and the State bore the burden of convincing the trial court that the search fell within one of the well-delineated exceptions to the warrant requirement. * * *

The inventory search of George‟s vehicle did not violate the Fourth Amendment of the United States Constitution or Article I, Section 11, of the Indiana Constitution, and the trial court therefore properly admitted the items seized from the inventory search into evidence. Affirmed.

In Thomas Allen House v. State of Indiana - "Thomas Allen House appeals the order revoking his suspended sentence. We affirm in part, reverse in part, and remand. Issue: Whether the trial court erred by not awarding credit time."

NFP civil opinions today (5):

Michael D. Baker v. Jerry Lehman (NFP) - "We agree with Baker that even if he was indebted to RNIC for the commissions on the cancelled policies, the fact that Lehman was also liable renders equitable subrogation inapplicable here. * * * We are unaware of any other theory under which Lehman is entitled to recover from Baker. Consequently, we reverse the trial court's judgment in Lehman's favor.
Reversed."

Christal Chandler v. Hardigg Industries (NFP) - "Following a bench trial, Michael George appeals his conviction of possession of a controlled substance, a Class D felony. On appeal, George raises one issue, which we restate as whether the trial court properly concluded that the seizure of morphine tablets during a warrantless search of George's vehicle did not violate the Fourth Amendment of the United States Constitution or Article I, Section 11, of the Indiana Constitution. Concluding the trial court properly concluded the search did not violate either constitutional provision, we affirm."

Aaron S. Bowland and Christina Bowland v. Ryobi Die Casting (USA), Inc. (NFP) - This is a 27-page opinion that concludes:

Based upon the foregoing, we conclude that Ryobi successfully negated the “duty element” of the Bowlands‟ negligence claim. The trial court correctly granted summary judgment in Ryobi‟s favor. See Howard, 879 N.E.2d at 1122 (“To prevail on a motion for summary judgment in a negligence case, the defendant must establish that the undisputed material facts negate at least one element of the plaintiff‟s claim or that the claim is barred by an affirmative defense.”). Affirmed.

In the Matter of the Term. of Parent-Child Rel. of N.W., et al.; S.P. v. Dept. of Child Svcs. (NFP)

John White v. Monroe Co. Dept. of Child Services (NFP)

NFP criminal opinions today (2):

Joshua L. Miller v. State of Indiana (NFP)

Gary T. McGuire v. State of Indiana (NFP)

Posted by Marcia Oddi on February 24, 2009 12:10 PM
Posted to Ind. App.Ct. Decisions

Environment - "Yet One More Bush EPA Air Rule Goes Down"

Interesting post by Jonathan Adler of The Volokh Conspriacy, that includes this statement:

[I]t is remarkable how poorly the Bush Administration's air pollution regulations have fared in federal court, even before the relatively conservative D.C. Circuit.

Posted by Marcia Oddi on February 24, 2009 11:57 AM
Posted to Environment