Thursday, April 02, 2009
Courts - Hamilton joined by nominees to 2nd and 4th Circuits
Larry Margasak of the AP has this story.
Posted by Marcia Oddi on April 2, 2009 01:22 PM
Posted to Courts in general
Ind. Law - Warm weather reawakens "golf carts in city streets" issue
The Columbia City Post & Mail had this story by Chris Meyers on March 23rd, which begins:
As the temperature starts to rise, more alternative modes of transportation hit the streets.Here is a list of earlier ILB entries on using golf carts on city streets. The most recent entry, from March 2nd, concludes:Whether it be a bicycle, mo-ped, ATV or golf cart, the options are plenty for those looking to save gas money, but one of those options could result in an extra expense to pay the fine if someone is found driving a golf cart on a public road.
Although some cities and towns in Indiana decided to allow the use of golf carts on public roads in 2008, local ordinances follow state statute which prohibits their use on roads.
“Obviously, we will not pass an ordinance contrary to state law,” Frank Kessler, Churubusco Town Council President, said recently of the issue.
Churubusco Town Marshal Chad Fulkerson said at the council’s most recent meeting that he would also not like to see golf carts allowed on local streets out of safety concerns.
Columbia City and South Whitley also follow state law regarding motorized carts on streets. To be allowed on a public road, the carts would have to be registered with the Indiana Bureau of Motor Vehicles, but the BMV will not register them because they don’t meet safety requirements.
Sgt. Ron Galaviz, public information officer for the Indiana State Police in District 22, said Indiana traffic code doesn’t specifically ban or restrict the use of golf carts provided they meet the proper registration requirements, but if the BMV doesn’t allow them to be registered, it can put the brakes on someone’s plan to legally use a cart.
Functioning head and brake lights, turn signals and other equipment are needed to make golf carts street legal, but standard carts don’t come from the factory with such features.
[The ILB] 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 April 2, 2009 01:04 PM
Posted to Indiana Law
Ind. Gov't. - "Open records law needs changes"
That is the heading to this editorial today in the Gary Post-Tribune. It begins:
Indiana citizens have no legal right to know with whom state employees meet.The state public access counselor issued an informal opinion to the Post-Tribune last week, reaffirming that state law.
The newspaper had sought the meeting schedules of employees of the Indiana Department of Environmental Management.
To put the decision more bluntly: Even though taxpayers pay the salaries of these employees and pay for the buildings they work in, the citizens have no legal right to know what they do during the day, including meetings with other public citizens -- and industries.
Unfortunately, the counselor's hands are tied by Indiana's archaic laws, under which meeting schedules -- even those in Outlook software accessible by dozens of other employees -- are akin to a diary or calendar. Those are protected because state employees might jot down some personal notes.
These laws stem from a time when state employees might keep a daily record on their desks, written with a feather dipped in an ink pot.
Those times have passed, but the law hasn't changed.
Posted by Marcia Oddi on April 2, 2009 12:49 PM
Posted to Environment | Indiana Government | Indiana Law
Ind. Courts - "Attorneys host Justice O'Connor to tout merit selection of St. Joseph judges"
Ed Ronco reports today in the South Bend Tribune:
A former U.S. Supreme Court justice is throwing her voice into the discussion over whether St. Joseph County judges should be elected or appointed.See this ILB entry from yesterday for more background.Sandra Day O'Connor — who in 1981 became the first woman appointed to the high court — is scheduled to appear at 11:30 a.m. April 22 inside the Palais Royale ballroom, 105 W. Colfax Ave., South Bend.
Meanwhile, an Indiana Senate committee on Wednesday put off a vote on a bill that would move St. Joseph Superior Court judges to nonpartisan elections.
Under the current "merit selection" system, a committee of citizens and legal experts nominates finalists for the bench. The governor makes the final choice, and then voters decide whether to retain the judges every six years.
O'Connor will speak in support of that system, but her appearance comes just seven days before the Indiana General Assembly is set to adjourn.
That leaves 20 days before O'Connor speaks during which the Indiana General Assembly could approve or kill House Bill 1491, which was introduced by Rep. Craig Fry, D-Mishawaka.
"I don't know where this piece of legislation is going to be at that time," said Michael Scopelitis, chief judge of the St. Joseph Superior Court and a vocal opponent of the bill.
Her visit is being sponsored by the St. Joseph County Bar Association, which also opposes elected judges.
At a hearing Wednesday on the bill, Senate Judiciary Committee Chairman Sen. Richard Bray, R-Martinsville, said the committee will likely vote April 8 on whether to send the measure to the full Senate.
Supporters of the measure say it would make judges more accountable to the public.
Fry was not at Wednesday's hearing, but Rep. Ryan Dvorak testified in his place. He said St. Joseph County should not be treated differently than the 90 counties in Indiana that use some form of election to choose judges.
Lake County is the only other county where merit selection is used.
Dvorak said the common argument from critics of the bill is that merit selection produces a higher caliber of judge.
"The problem with that argument is the insinuation that the Superior Court judges in the rest of the state of Indiana are not very good," said Dvorak, D-South Bend.
Dvorak also said there's no evidence in Indiana that elected judges have been exposed to undue political influence and pressure, something the bill's critics cite as a concern.
If the bill is voted out of committee, it would next be considered by the full Senate. It passed the House in February by a vote of 88 to 3.
ILB: Note that April 15th is the last day for 3rd reading of bills in the opposite house. Justice O'Connor is to speak on April 22nd.
Posted by Marcia Oddi on April 2, 2009 12:38 PM
Posted to Indiana Courts
Ind. Decisions - 7th Circuit decides one Indiana case today; and an Illinois opinion about clemency
In U.S. v. Brewer (CJ Miller), a 6-page opinion, Judge Posner writes:
The defendant appeals from his conviction for illegal possession of a gun, for which he was sentenced to six years in prison. The only question presented by his appeal is whether he was stopped without reasonable suspicion, for it was in the course of the stop that the gun was discovered. * * *In Bowens, et al. v. Pat Quinn, Governor (ND Ill.), relating to nine plaintiffs petitioning for pardons, where then-Governor Blagojevich granted one of the petitions and denied eight at the same time the Governor's motion to dismiss was pending. Judge Posner wrties:Tutino had three years’ experience with criminal activity in the particular housing complex, was parked in a position in which he had an unobstructed view of the only exit from the complex, heard gunfire, received confirmation of a report of shots fired, and saw a vehicle emerge seconds later from the complex. That vehicle—the white SUV—was the only vehicle on the road at that late hour in this high crime area, and it was pulled over and stopped for only moments before the officers making the stop learned that the SUV had been seen at the site of the shooting and that the occupants may have been involved in the shooting. Less than a minute later the defendant admitted that he had guns in the car. When we consider the dangerousness of the crime, the brevity of the interval between the firing of the shots and the spotting of the sole vehicle quickly exiting, the minimal intrusion on the occupants of the vehicle, the need of the police to inform themselves of the conditions in the complex before endangering themselves by entering it in the dark, and the further need to stop potentially fleeing suspects until more information about the crime could be obtained, we conclude that the police acted reasonably, and therefore that the judgment must be AFFIRMED.
It might seem that the case would be moot with regard to the nine plaintiffs whose petitions were acted on, since the only relief they seek is an injunction requiring the governor to decide within a reasonable time whether to grant a pardon that has been applied for. But the situation of the eight whose applications were denied is similar to that of a pregnant woman who challenges an abortion law and by the time the case is ready to decide has given birth. Her case is “capable of repetition [she may become pregnant again], yet evading review,” Roe v. Wade, 410 U.S. 113, 124-25 (1973), quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911); see also Weinstein v. Bradford, 423 U.S. 147, 148-49 (1975) (per curiam), and on this ground is held not to be moot. The situation of the eight plaintiffs is similar because each of them can file a new petition for executive clemency after a year has elapsed from the denial of a previous one, 730 ILCS 5/3-3-13(a-5), and thus would face the prospect of having their next suit rendered moot by another prompt denial. Eventually they would be exhausted from repeated futile suits and would give up, and the governor could then resume his alleged policy of “pocket vetoing” clemency petitions. We con- clude that only the claim of the plaintiff whose clemency petition was granted is moot.As for any requirement of "timely" action, Posner writes:
Executive clemency is a classic example of unreviewable executive discretion because it is one of the traditional royal prerogatives (along with receiving foreign ambassa- dors and commanding the armed forces) borrowed by republican governments for bestowal on the head of government. U.S. Const., art. II, § 2, cl. 1; Schick v. Reed, 419 U.S. 256, 260-66 (1974); Ex parte Grossman, 267 U.S. 87, 108-10 (1925); John Harrison, “Pardon as Prerogative,” 13 Fed. Sentencing Rptr. 147 (2001) (“seeing the pardon power as a bit of the royal prerogative dropped into our generally law-bound constitutional system provides a perspective on the actual and possible functions of that power”). We therefore balk at the idea of federal judges’ setting timetables for action on clemency petitions by state governors.And what sanction could a federal court impose for noncompliance with any “reasonable time” deadline that the court might set? Would it be to grant the pardon? If so, the governor’s office would be overwhelmed. Every felon in the state would apply for a pardon knowing that, with all applying, the governor’s office, overwhelmed, would be unable to process the applications within the deadline set by the court, and so they would be granted by default. Federal courts have run prisons, school systems, police and fire departments, and other state and local agencies found to have engaged in uncon- stitutional conduct. But for a federal court to run a gov- ernor’s pardon system would be a step too far.
The ruling by the district court is reversed with in- structions to dismiss the suit with prejudice. REVERSED.
Posted by Marcia Oddi on April 2, 2009 12:20 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)
For publication opinions today (1):
In Travis L. Roberson v. State of Indiana, a 2-page, 2-1 opinion on a petition for rehearing, Judge Bradford writes:
Appellant/Defendant Travis L. Roberson and Appellee/Plaintiff the State of Indiana both petition this court for rehearing. We grant the State’s petition for the limited purpose of clarifying that one may challenge a waiver into adult court at any time, as it involves a question of subject matter jurisdiction. * * * [A]ny language in our original opinion indicating that Roberson waived the issue for appellate review by pleading guilty is superseded by this opinion on rehearing. We reaffirm our original disposition in all other respects, including our conclusion that the trial court did not abuse its discretion in waiving Roberson into adult court.NFP civil opinions today (0):Bailey, J., concurs.
Riley, J., dissents. [Apparently without opinion.]
NFP criminal opinions today (0):
Posted by Marcia Oddi on April 2, 2009 11:55 AM
Posted to Ind. App.Ct. Decisions
Wednesday, April 01, 2009
Law - "Storm Clouds Gather Over Obama Nominees "
Some quotes from an article today in the NY Times, by Neil A. Lewis:
WASHINGTON — Although the parties have changed places, the nomination wars continue. * * *Here are some quotes from Senator Lugar's introduction statement today for Judge Hamilton at the Senate Judiciary Committee hearing:The current Republican focus is on a pair of nominees: Mr. Obama’s first selection for a federal appeals court seat, David F. Hamilton, and his choice to head the Office of Legal Counsel at the Justice Department, Dawn Johnsen. (By coincidence, the two are in-laws.)
Senator Arlen Specter of Pennsylvania, the Judiciary Committee’s ranking Republican, has complained that the Democrats are moving too quickly to consider Mr. Hamilton, a federal trial judge in Indiana since 1994. The committee has set for Wednesday the confirmation hearing on Judge Hamilton, who was nominated only in mid-March.
But the attacks on the nomination of Ms. Johnsen, who is married to Judge Hamilton’s brother, have been more severe. Ms. Johnsen, a law professor at Indiana University, was an unsparing critic of memorandums, written by lawyers at the Office of Legal Counsel in the Bush administration, that said the president could largely ignore international treaties and Congress in fighting terrorists and that critics have portrayed as allowing torture in interrogation.
Thank you, Mr. Chairman, for this opportunity to join my friend and colleague from Indiana in introducing Judge David Hamilton, whom the President has nominated to serve on the United States Court of Appeals for the Seventh Circuit. Senator Bayh and I are proud that President Obama’s first judicial nominee is from our State, and that he has chosen to elevate such an exceptionally talented jurist to the Federal appellate bench.I first had the pleasure of introducing David Hamilton to this Committee almost 15 years ago, when he was nominated to the Federal district court. I said then that “the high quality of his education, legal experience, and character well prepare him for this position,” and expressed my belief that “his keen intellect and strong legal background will make him a great judge.” This confidence in David Hamilton’s character and abilities was shared by all who knew him, regardless of political affiliation, throughout Indiana’s legal and civic communities. Judge Hamilton’s distinguished service on the United States District Court for the Southern District of Indiana, of which he is now the Chief Judge, has more than vindicated that faith.
I have known David since his childhood. His father, Reverend Richard Hamilton, was our family’s pastor at St. Luke’s United Methodist Church in Indianapolis, where his mother was the soloist in the choir. Knowing first-hand his family’s character and commitment to service, it has been no surprise to me that David’s life has borne witness to the values learned in his youth. * * *
Finally, permit me to thank my colleague from Indiana on the thoughtful, cooperative, merit-driven attitude that has marked his own approach to recommending prospective judicial nominees from our State. The two most recent examples are his strong support for President Bush’s nominations of Judge Tinder for the Seventh Circuit and of Judge William Lawrence for the Southern District of Indiana. I am confident Senator Bayh and I will continue to approach nominations by President Obama in the spirit that brings us before you today.
Posted by Marcia Oddi on April 1, 2009 03:50 PM
Posted to Courts in general
Ind. Courts - More on: Re the Appellate Clerk's docket, has the other shoe finally dropped?
The entry from earlier today has been updated with some Q & A thanks to Kevin Smith, Clerk of the Appellate Courts - check it out.
Posted by Marcia Oddi on April 1, 2009 02:07 PM
Posted to Indiana Courts
Ind. Courts - Still more on "House overwhelmingly passes measure to elect jurists in St. Joe County"
Updating this ILB entry from March 12th, Ed Ronco is reporting this afternoon in the South Bend Tribune under the heading "Senate committee holds off on judges bill." Some quotes:
After a lengthy hearing on the matter, the Indiana Senate Judiciary Committee decided to wait a week before voting on a bill that could change the way some St. Joseph County judges are selected.Chairman Sen. Richard Bray said today the committee would likely vote next Wednesday on whether to send House Bill 1491 to the full Senate.
The bill would move St. Joseph County Superior Court judges from a merit selection system to nonpartisan popular elections. * * *
Supporters of the measure say it would make judges more accountable to the public.
The bill’s opponents say it would expose judges to undue political influence and pressure.
If the bill is voted out of committee, it would next be considered by the full Senate. It passed the House in February by a vote of 88 to 3.
Posted by Marcia Oddi on April 1, 2009 01:43 PM
Posted to Indiana Courts
Environment - SCOTUS rules on use of cost-benefit analysis in at least some CWA applications
SCOTUSBlog reported earlier today:
The Court has released the opinion in Entergy Corp. v. EPA (07-588), on the Clean Water Act and the regulation of power plant cooling structures. The decision below, which held for the EPA, is reversed and remanded in a 6-3 opinion by Justice Scalia.Now their crack reporter, Lyle Denniston, has posted an analysis piece on the opinion. Here is a sample:
Justice Antonin Scalia examined a provision of the Clean Water Act that controls industry structures for pulling plant-cooling water out of rivers and streams, and found that Congress had said nothing there about whether EPA could weigh costs against benefits and choose a lower-cost option. “It is eminently reasonable,” Scalia wrote, “to conclude that [that section’s] silence is meant to convey nothing more than a refusal to tie the agency’s hands as to whether cost-benefit analysis should be used, and if so to what degree.”[More] David Stout has now posted this story on the NY Times website.If Congress’ silence meant prohibition, then federal agencies would not be able to take into account any considerations that Congress did not expressly leave to their discretion, Scalia said.
To Justice John Paul Stevens and two other dissenters, congressional silence — at least in this legislation — spoke more definitively. In the environmental field, the dissenters argued, “Congress granted the EPA authority to use cost-benefit analysis in some contexts but not others” and Congress intended “to control, not delegate, when cost-benefit analysis should be used.” Thus, under the Clean Water Act, silence on Capitol Hill did not mean “an invitation for the Agency to decide for itself which factors should govern its regulatory approach.”
Posted by Marcia Oddi on April 1, 2009 01:26 PM
Posted to Courts in general | Environment
Courts - SCOTUS rules federal government should pay lawyers for clemency work
WASHINGTON (AP) — The Supreme Court said Wednesday the government should pay federally appointed lawyers for working on state clemency requests for death row inmates.The decision is Harbison v. Bell. Here is the SCOTUSBlog Wiki on the case.Convicted murderer Edward Jerome Harbison wanted the government to pay for his federal public defender to represent him in a clemency petition to the Tennessee governor. But the 6th U.S. Circuit Court of Appeals in Cincinnati ruled against the request, saying the law "does not authorize federal compensation for legal representation in state matters."
The high court disagreed, reversing the appeals court's decision. * * *
Ohio Gov. Ted Strickland and the former governors of New Mexico, Ohio, North Carolina, Indiana, Arizona, Pennsylvania and Illinois joined in Harbison's request to the Supreme Court.
Posted by Marcia Oddi on April 1, 2009 01:17 PM
Posted to Courts in general
Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
John E. Hendrix v. Mary E. Hendrix (NFP) - "John E. Hendrix (“Husband”) appeals from the “Amended Decree of Dissolution” (“Amended Decree”) following remand from a previous appeal, and Mary E. Hendrix (“Wife”) cross-appeals. We affirm in part, reverse in part, and remand with instructions"
NFP criminal opinions today (2):
Brandon Scroggin v. State of Indiana (NFP)
Rodney M. Brewer v. State of Indiana (NFP)
Posted by Marcia Oddi on April 1, 2009 11:13 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Re the Appellate Clerk's docket, has the other shoe finally dropped? [Updated]
Almost exactly one year ago, on April 2, 2008, the ILB posted a note from a attorney-reader, raising the alert that the attorney's "cases that deal with juvenile delinquency matters and TPR/CHINS matters" has suddenly begun disappearing from the Appellate Courts' online docket, "even the case's very existence." More:
What seems particularly odd to me is that juveniles' names are initialed in all of our filings, in the opinion itself, and on the online docket in order to maintain their anonymity. Why would there be a further need to completely remove the online docket information? Furthermore, how are we as attorneys supposed to make sure our cases are "transmitted" to the Court of Appeals in a timely fashion if we cannot check their progress on the online docket?Another reader, noting the post, wrote to the ILB on the same day:
I agree with many of the concerns you posted from a reader earlier today. Some of my juvenile cases have disappeared from the docket; others are still there. Although I am quite concerned about juvenile privacy rights, I would never have suggested removing a case from the docket. The online docket in no way violates a juvenile's privacy rights. It does, however, provide very important and timely information to counsel. I'm not sure who made this decision or when, but I think it is ill-advised and hope it will be changed.See also this post from April 3rd, 2008.
The Court of Appeals was unaware of the fact that docket information was no longer available. In fact, during this same period, the Court was urging attorneys to use the docket. The COA had become aware of problems in the Clerk's office, leading on occasion to delays of months between transmission of fully-briefed cases to the Court itself. In a number of opinions, the COA admonished counsel via footnotes to be sure to "check the Clerk's online docket ... to confirm that the case has, in fact, been transmitted to this court after being fully briefed." But, as I noted in this April 30, 2008 entry:
NOTE that this case was lost in the Clerk's office until last month. And although the Court urges attorneys to check the online docket to make sure their briefed cases have been submitted to the judges, the Clerk has inexplicably been removing entire categories of appeals, such as juvenile appeals, completely from the online docket.The first shoe dropped six months later and is well-documented in this ILB entry dated Oct. 8, 2008, which is well worth reading in full. After giving the background, the entry continues:For example, here is an opinion issued last Friday, April 25th, in the case of In The Matter of B.F. and T.F., Children in Need of Services, Audrey Faver v. Marion County Department of Child Services, and Child Advocates, Inc. . The docket number is 49A05-0709-JV-515. The ILB just looked up that case in the online Clerk's docket. It does not exist in the docket.
In other words, anyone looking to see if the case had been appealed would not find it in the docket; the first notice of the appeal would have been the issuance of the COA's opinion. And no attorney in the case would have been able to check the online docket, as the COA appeals has been suggesting, because there is no docket at all for the case.
Today the Supreme Court has filed two orders that hopefully will put the Clerk's Docket back the way it was. * * * See, for instance, the new Adm. Rule 9(G)(4):That was six months ago. What has happened since? Has the other shoe dropped yet? No, not yet. As of this weekend, some of the missing dockets have been reentered. I wrote to an attorney yesterday:(a) Cases in which the entire record is excluded from public access by statute or by rule. In any case in which all case records are excluded from public access by statute or by rule of the Supreme Court,I'm not clear, however, about subsection (c), which deals with "Cases in which any public access is excluded by trial court order." Does this mean that in these sealed cases, even the existence of the case on appeal will be sealed -- i.e. a secret docket?(i) the Clerk shall make the appellate chronological case summary for the case publicly accessible but shall identify the names of the parties and affected persons in a manner reasonably calculated to provide anonymity and privacy; and(ii) the parties and counsel, at any oral argument and in any public hearing conducted in the appeal, shall refer to the case and parties only as identified in the appellate chronological case summary and shall not disclose any matter excluded from public access.
In all cases, however, as provided in subsection (d):
(d) Orders, decisions, and opinions issued by the court on appeal shall be publicly accessible, but each court on appeal should endeavor to exclude the names of the parties and affected persons, and any other matters excluded from public access, except as essential to the resolution of litigation or appropriate to further the establishment of precedent or the development of the law.What does all this mean? Hopefully, it means that the entries for juvenile cases, adoptions, termination of parental rights, etc. which were removed from the Clerk's Docket last spring, will be restored as quickly as they were taken down. And it would seem to me that initials, as used before, would be enough -- the Clerk's appellate docket is simply a list of acts done.
Q - Is it your impression that this puts things back the way they were before the Clerk's office started removing them?So the ILB did a check, using the case cited earlier in this entry: The docket number is 49A05-0709-JV-515. This was the docket response:A - I don't think so. All my juvenile cases from 2007 and before, which were previously on the docket before all this, aren't back up.
No records found for this search.On the other hand, for another example, on 3/25/09 the Supreme Court issued an opinion in the case of In Re the Paternity of K.I., and J.I. v. J.H. A check of the docket for 13S05-0805-JV-213 yields a lengthy docket, but it only goes back to 4/30/08, when the transfer appeal was granted. After locating the COA case number*, I was able to access the COA docket, where the first entry is 6/14/07.
Case Number entered was: 49a050709jv00515
Hopefully, the Clerk's docket will be restored in full, except for the substitution of initials for party names, within the next few days so that cases are treated consistently. Right now, someone doing a search may not even know that some cases are missing, as there is no docket entry at all, and no explanation of a rationale.
___________
* I haven't listed the COA case number because the docket continues to list the names of several of the parties.
[Updated at 2:00 PM] Kevin Smith, Clerk of the Appellate Courts, has answered some of my questions. Here is our correspondence:
ILB - Kevin - I'm doing a post and [1] have discovered that for 13 A 05 - 0706 - JV - 00329, which is the COA entry for the Supreme Court opinion earlier this week where the adult party names hadn't been removed when the opinion was posted the first time, still has the adult party names rather than initials.Second, are you planning to restore all the juvenile, etc. dockets that were removed last year?
KS - Thanks for the head's up Marcia. [1] Because the Court of Appeals' opinion in Matter of K.I. was issued prior to Admin. R. 9(G)(4)(d)'s effective date of Jan. 1, 2009, the Court of Appeals' opinion was not governed by Admin. R. 9(G)(4)(d) and will not be revised (as that rule only applies to appellate opinions handed down on or after Jan. 1, 2009). Please see the final sentence of footnote one in the Supreme Court's Matter of K.I. opinion, which makes reference to the fact that the Court of Appeals' opinion was issued prior to the rule's effective date.
[2] As for the chronological case summaries (CCSs) in juvenile and adoption appeals that were taken off-line last year to bring our appellate courts' dockets into compliance with the requirements of Administrative Rule 9(G)(1)(b)(i), (vi), and (vii), appellate CCSs are now publicly available in all juvenile and adoption appeals that were pending as of, or filed on or after, January 1, 2009 (the effective date of Admin. R. 9(G)(4)(a)(i)). With regard to those "pending" appeals, it was a very time-consuming and
laborious process to bring their CCSs into compliance with 9(G)(4)(a)(i), but we are happy to report that we completed the project this past weekend.ILB - Thanks Kevin - I'm planning to post this, unless you object. In addition Re #2, should I read your answer to "Second, are you planning to restore all the juvenile, etc. dockets that were removed last year? to mean that only those that were pending as of, or filed on or after, January 1, 2009 have been restored, and that any others that were removed will not be restored?
KS - Marcia, I will have to check with the Supreme Court to see if it contemplates that sort of endeavor with regard to its understanding of compliance with Admin. R. 9(G)(4)(a)(i).
Posted by Marcia Oddi on April 1, 2009 10:20 AM
Posted to Indiana Courts
Courts - "Employment Contracts Now Seen as Being Rewritable "
Some quotes from a lengthy story published yesterday in the NY Times, reported by Mary Williams Walsh and Jonathan Glater:
Contracts everywhere are under assault.The City of Vallejo has posted online its key pleadings, including this one from March 13th - 3/13/2009 - Dkt. No. 473 - "Memorandum Decision of the Court regarding Motion for Approval of Rejection of Collective Bargaining Agreements," which addresses "whether chapter 9 of the Bankruptcy Code permits a municipality to reject collective bargaining agreements with its public employee unions." See p. 9 of the PDF.The depth of the recession and the use of taxpayer dollars to bail out companies have made it politically acceptable for overseers to tinker with employment agreements.
So federal and local governments are looking for ways to pare payouts, endangering the promises made before the financial storm to people like Wall Street traders, automobile workers and garbage collectors.
“We run roughshod over some contracts and not over others,” said David A. Skeel, a law professor at the University of Pennsylvania, about economic downturns. “Right now, employment contracts seem to be the type of contract that is viewed as eminently rewritable.” * * *
Across the country, Vallejo, Calif., just got permission in bankruptcy court to tear up its contracts with firefighters and other workers. In Stockton, the city manager is studying whether to follow Vallejo’s lead. * * *
This month, the town of Vallejo demonstrated not only that it was possible for a city to tear up its union contracts in bankruptcy, but that it was even easier for a city to do so than for a company. The precedent may matter.
Municipalities do not file for Chapter 11 bankruptcy protection; they use Chapter 9, which has different terms and a much smaller body of legal precedent. Municipal bankruptcies are so rare that until the Vallejo ruling, it was not clear whether a city could get out of its union contracts in Chapter 9.
Unions representing Vallejo’s public employees tried to argue that state labor laws protected the contracts. But the federal judge handling the bankruptcy, Michael S. McManus, wrote that federal bankruptcy law trumped the state labor law. He also observed that Congress could have set tougher standards for municipalities voiding their labor contracts — it did so for companies. But such bills died in committee.
After reaching his decision, the judge gave both sides one more chance to try to negotiate less-onerous concessions.
“The world is watching, and I don’t say that with pride, because we never wanted to file a Chapter 9,” said Marc A. Levinson, a partner with Orrick, Herrington & Sutcliffe who is representing Vallejo in the bankruptcy. The city ran out of money last year, after promising benefits that it could not afford when the recession drove down tax receipts.
Vallejo’s bankruptcy is being closely watched because its problems mirror those in many communities that have promised benefits that now look unsustainable. In many places the benefits have been locked in with statutory and constitutional guarantees.
“That’s why Vallejo is so important,” said James E. Spiotto, a Chapter 9 specialist with the firm of Chapman & Cutler in Chicago. “Chapter 9 and bankruptcy is the land of broken promises.” He said unions were better off negotiating concessions now than landing in bankruptcy court and ending up with no contract at all.
But entirely different rules apply to bonded debt, and to a related problem plaguing some communities: derivatives. Chapter 9 was never meant to be a place where governments could get out of their bonded debt, Mr. Spiotto said.
Derivatives are largely untested, but the issue may reach a decisive point in Jefferson County, Ala., which is entangled in interest-rate swaps. The swaps were intended to shield the county from rising interest rates after it issued a large amount of variable-rate debt to pay for a new sewer system.
The swap arrangements broke down amid last year’s turmoil in the credit markets, leaving Jefferson County with $3.2 billion in debt that it can neither pay nor refinance. Some officials are now calling for a Chapter 9 filing; others are against it. * * *
The Treasury secretary, meanwhile, is working on a much broader initiative to give the federal government the power to modify the contracts of the financial institutions it takes over. The proposal raises several new issues, because it would eliminate the judicial oversight of bankruptcy proceedings and the opportunity for affected parties to challenge the changes.
The goal is to speed up reaction time to crises, said Lisa Hill Fenning, a retired bankruptcy judge who now practices at Dewey & LeBoeuf in Los Angeles. “Traditional ways of dealing with these problems are too complicated and would take too long,” Ms. Fenning said. “They’re trying to cut through red tape.”
Posted by Marcia Oddi on April 1, 2009 07:55 AM
Posted to Courts in general
Law - "Goshen lawyer's confidential files found in trash"
Justin Leighty reports in the Elkhart Truth in a story that begins:
GOSHEN -- If you ever need an attorney, you might want to double-check what happens to your confidential information after your case is closed.When Jason Oswald went to put trash in the container Saturday behind his business, Constant Spring, he found something he didn't expect -- confidential client files from attorney Joe Lehman's office.
"He had basically filled it up with old law books and manilla folders, and when I began poking through I found these were people's files," Oswald said. "Any kind of thing you go to a lawyer for was in there," he said.
"I pulled a file out, it had Social Security numbers, pictures of these people, court documents, the kind of stuff you probably don't want people to see," Oswald said. "I was dumbfounded."
Lehman had started to move his office from South Main Street to a new location on Clinton Street.
Lehman, when contacted about it Tuesday, sounded surprised anyone had concerns about the files.
"They were the oldest files -- I think they were quite a few years old. I didn't know there was some personal data that was in there," he said before ending the conversation, citing the ongoing move.
However, a Truth staffer found paternity files, divorce files and financial records in the container before it was emptied Tuesday morning -- three days after Oswald first noticed the files.
Posted by Marcia Oddi on April 1, 2009 07:42 AM
Posted to Indiana Law
Ind. Courts - Still more on: State workers lawsuit for back pay during 1973-1993 period begins today
Yesterday the ILB asked if anyone had update information about the state workers' lawsuit -- the bench trial began March 10th before Judge John Hanley. Thanks to reporter Jon Murray of the Indianapolis Star, here is the answer, via a brief item that ran in the Star March 14th (and the ILB missed):
A Marion Superior Court judge won't issue a ruling until at least next month on a case brought by former state workers who say they were underpaid for 20 years.Judge John Hanley heard evidence over four days during this week's trial, which ended Friday. He asked attorneys for the plaintiffs and the state to submit proposed findings by March 31.
The lawsuit contends that as many as 15,000 state employees worked 40-hour weeks from 1973 to 1993 but received the same pay as others in similar jobs who worked 37.5 hours. The plaintiffs' lawyers estimated total unpaid compensation at $42 million to $81 million.
Posted by Marcia Oddi on April 1, 2009 07:31 AM
Posted to Indiana Courts
Tuesday, March 31, 2009
Courts - Highly compensated California state judges not sharing state's economic pain
That is the thrust of an AP story by Paul Elias today, published in the Washington Post. The long story begins:
SAN FRANCISCO -- California has furloughed workers and slashed programs to close a $41 billion budget gap, but it still has more than 400 judges in Los Angeles County who each make more than the chief justice of the U.S. Supreme Court.This caught my eye:
The heftiest perks go to Los Angeles County judges, who get $46,000 a year from the county on top of their state salaries, giving them a total of $225,000. * * *Interesting, especially if read it in conjunction with the ILB entry from Dec. 29, 2008.An appellate court last year ruled that the Los Angeles County perks, which cost $21 million annually, were unconstitutional. But the judges fiercely resisted attempts to do away with the extra funds, hiring a law firm and Sacramento lobbyist to resist challenges to the benefits.
The California Judges Association also hired a Sacramento lobbyist and joined forces with the judiciary's administrative office to get legislation passed earlier this year protecting the county-provided benefits. * * *
"Quite frankly, many of these judges went on the bench understanding and relying that these benefits were there," said Child, who also said the state Constitution bars reducing an active judge's salary.
Posted by Marcia Oddi on March 31, 2009 04:47 PM
Posted to Courts in general
Ind. Courts - More on: State workers lawsuit for back pay during 1973-1993 period begins today
The ILB reported on March 10th that the $8.5 million settlement had fallen through and that the state workers' lawsuit was set for a bench trial beginning that day, before Judge John Hanley.
The ILB has heard and read nothing further. Anyone?
Posted by Marcia Oddi on March 31, 2009 04:40 PM
Posted to Indiana Courts
Ind. Courts - More on: Indianapolis Central library lawsuit begins in Boone County courtroom
Updating this ILB entry from March 14th, Jon Murray reports today on the Indianapolis Star site in a story that begins:
LEBANON, Ind. -- The six-week trial over the troubled Central Library project shifted gears today as witnesses called by an engineering firm's defense lawyers took the stand.[Updated 4/1/09] Here is the updated version, published in today's Star.At the halfway point, the Indianapolis-Marion County Public Library rested its primary case alleging fraud and constructive fraud against the New York-based firm, Thornton Tomasetti, and a managing principal, Joseph G. Burns. The trial likely will stretch into the second half of April.
AdvertisementLibrary attorneys on Monday asked a Boone County jury to award $24 million in damages, plus punitive damages. The hope of a large verdict against Thornton Tomasetti is a key part of the library's quest to recoup cost overruns estimated at nearly $50 million beyond the project's original $103 million budget.
Posted by Marcia Oddi on March 31, 2009 04:32 PM
Posted to Indiana Courts
Ind. Decisions - Supreme Court issues four today
In The Indiana Dept. of Environmental Management v. Raybestos Products Co., on a petition for rehearing, Justice Boehm's opinion reads in full:
Raybestos has petitioned for rehearing from this Court’s December 9, 2008 opinion. Raybestos points out that the opinion incorrectly states the standard of review used by the Office of Environmental Adjudication in reviewing an action of IDEM. The first full paragraph of page 7 of the slip opinion states that OEA uses the standard of review provided by Indiana Code section 4-21.5-5-14 and may provide relief as permitted by section 4-21.5-5-15. Raybestos rightly points out that these statutes apply to judicial, not administrative review. We grant rehearing for the limited purpose of correcting this error and otherwise deny Raybestos’s Petition for Rehearing. [ILB - see Dec. 9 summary here.]In Brian Tyler v. State of Indiana , an 11-page, 4-1 opinion, Justice Boehm writes:
We exercise our supervisory power to hold that a party may not introduce testimony via the Protected Person Statute if the same person testifies in open court as to the same matters. We also exercise our authority to revise the defendant‘s 110-year sentence to sixty-seven and one-half years. * * *In Tony R. Gray v. State of Indiana, an 8-page, 5-0 opinion, Justice Boehm writes:The trial court did not abuse its discretion when it admitted videotaped interviews with three of the children after the children had testified at trial. However, we remand the issue of Tyler‘s sentence to the trial court with instructions to issue an amended sentencing order in accordance with this opinion, without a hearing.
Shepard, C.J., and Rucker, J., concur.
Sullivan, J., concurs in result as to Part I and concurs as to Part II with separate opinion. [which begins, on p. 9] Sometimes having a new approach to the admissibility of evidence improves the administration of justice but I respectfully suggest that the status quo is superior to that adopted by the Court here.
Dickson, J., concurs and dissents with separate opinion: As to Part I of the Court's opinion, I agree with its holding regarding the permissible use of statements under the Protected Person Statute. * * *
As to Part II, however, I dissent. Adhering to "due consideration of the trial court's decision," as required by Indiana Appellate Rule 7(B), I find that Judge Taul's evaluation and determination of the appropriate sentence for this defendant and these convictions does not warrant appellate intrusion.
Tony Gray was found guilty by a jury of robbing two fast-food restaurants while armed with a deadly weapon. We find the evidence sufficient to sustain a finding Gray was armed during the first robbery, but insufficient to sustain a finding Gray was armed during the second. * * *In Tommy R. Pruitt v. State of Indiana, a 56-page, 4-1 opinion, Justice Sullivan writes:This cause is remanded to the trial court with instructions to reduce Gray’s convictions on the Long John Silver’s crimes (Counts I and II) to Class C felony robbery and Class D felony criminal confinement. In all other respects, the judgment of the trial court is affirmed.
Tommy Ray Pruitt was sentenced to death for the murder of a Morgan County police officer. His conviction and sentence were upheld on direct appeal. We now affirm the post-conviction court‘s findings that Pruitt was not denied the effective assistance of trial or appellate counsel guaranteed by the Sixth Amendment, that he did not present it with newly discovered evidence that undermined confidence in his death sentence, and that his death sentence is not unconstitutional under the U.S. Supreme Court‘s decision in Atkins v. Virginia prohibiting sentencing persons with mental retardation to death. * * *We affirm the PC court‘s denial of Pruitt‘s petition for post-conviction relief.
Shepard, C.J., and Dickson and Boehm, JJ., concur.Rucker, J., dissents with separate opinion. [which reads in full] On direct appeal I was convinced that Pruitt was mentally retarded and thus not eligible for a death sentence. See Pruitt v. State, 834 N.E.2d 90, 123-26 (Ind. 2005) (Rucker, J., dissenting). After examining the evidence presented to the post-conviction court, I am even more convinced today. Pruitt‘s status has not changed. He was and still is mentally retarded. I would therefore reverse his death sentence and remand this cause with instructions to impose a term of years.
Posted by Marcia Oddi on March 31, 2009 03:11 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Courts - Still more on: Robert Cantrell found guilty on all charges
Updating this ILB entry from Nov. 23, 2008, Dan Hinkel of the NWI Times reports this afternoon in a story that begins:
HAMMOND | Robert Cantrell was sentenced to 78 months in prison Tuesday morning in Hammond federal court and ordered to pay $68,000 in restitution.
Posted by Marcia Oddi on March 31, 2009 02:12 PM
Posted to Ind Fed D.Ct. Decisions
Ind. Decisions - Court of Appeals issues 7 today (and 13 NFP)
For publication opinions today (7):
In Home Telephone Co. of Pittsboro, Inc., et al. v. Verizon North, Inc., et al. , an 11-page opinion is an appeal from an order of the state utility regulatory commission. Judge Riley concludes:
Based on the foregoing, we hold that (1) Appellants waived their argument as to whether the IURC abused its discretion when it held that Section 10 of the Phase II Settlement Agreement precluded the Variance requested by Appellants; (2) the IURC did not render a decision on matters outside Appellants’ requested relief; and (3) the IURC did not abuse its discretion when it required Appellants to modify their Qualification Test by excluding the impact of rate reductions that occurred in 2006. Affirmed.In Diane Meyer v. National City Bank , a 6-page appeal pro se, Senior Judge Hoffman writes:
Defendant-Appellant Diana Meyer appeals the trial court’s grant of summary judgment in favor of Plaintiff-Appellee National City Bank. We affirm.In Heartland Resources Inc., Heartland-Red River Prospect, L.P., et al v. Ambrose and Catherine Bedel, a 7-page opinion, Judge Najam writes:Meyer presents three issues for our review, which we consolidate and restate as two: I. Whether the trial court erred in granting summary judgment for National City Bank. II. Whether Weltman Weinberg & Reis Co, L.P.A. properly represents National City Bank in this action.
Heartland Resources, Inc.; Heartland-Red River Prospect, L.P.; David A. Stewart; Richard Stewart; and Mark Haynes (collectively “Heartland”) appeal from the trial court’s entry of default judgment against Heartland and award of damages to Ambrose Bedel and Catherine Bedel (collectively “the Bedels”). Heartland presents the following restated issues for our review: 1. Whether the trial court had personal jurisdiction over Heartland. 2. Whether the trial court erred when it awarded the Bedels treble damages. The Bedels cross-appeal and contend that the trial court erred when it did not award them attorney’s fees. We affirm and remand with instructions. * * *In Julie A. Gardiner v. State of Indiana, an 11-page, 2-1 opinion, Judge Robb writes:Heartland contends that the trial court abused its discretion when it did not dismiss the Bedels’ complaint based upon the forum-selection clause in the contract. Indeed, the majority of Heartland’s brief on appeal is devoted to arguments that the forum-selection clause was freely negotiated and just and reasonable. However, those issues are not properly before this court on appeal, and we do not address the validity of the forum- selection clause.
[1] Once default judgment is entered against a party, the only means of challenging that judgment is by a motion to set aside the default judgment “in accordance with the provisions of Rule 60(B).” * * *
Heartland also has not shown that the trial court abused its discretion when it denied its motion to set aside default judgment. In addition to showing excusable neglect, a movant for relief from judgment under Trial Rule 60(B)(1) must show a meritorious defense. * * *
Here, Heartland did not plead the forum-selection clause or any meritorious defense, but merely alleged that the Bedels’ allegations were “not . . . based in fact.” Heartland did not present any evidence in support of that bare assertion. Indeed, Heartland was not even present at the hearing on its motion to set aside default judgment. Heartland has not demonstrated that the trial court abused its discretion when it denied its motion to set aside default judgment.
[2] Heartland next contends that the trial court erred when it awarded treble damages to the Bedels. Heartland maintains that the Bedels’ claims “fall squarely under” the Indiana Uniform Securities Act (“the Act”), which does not provide for treble damages. In essence, Heartland contends that because the award is based on damages arising from the Bedels’ investment in securities, the Act is the exclusive remedy. But there is nothing in the Act making it the exclusive remedy for the Bedels. * * *
[R]ather than awarding the Bedels damages under the Act, which does not provide for treble damages, the trial court expressly based the award on Heartland’s “fraud and deception as detailed in the complaint.” Id. The trial court did not err when it awarded the Bedels treble damages.
Cross-Appeal. The Bedels contend that the trial court erred when it did not award them attorney’s fees. This Court has held that a plaintiff is entitled to attorney’s fees, including appellate attorney’s fees, when she prevails under the Crime Victim’s Relief Act. See Benge v. Miller, 855 N.E.2d 716, 722 (Ind. Ct. App. 2006). We remand to the trial court with instructions to determine a “reasonable attorney’s fee,” including appellate attorney’s fees, and to include those amounts in the Bedels’ award. See I.C. § 34-24-3-1.
Julie Gardiner appeals the trial court’s modification of her sentence for dealing in methamphetamine within 1000 feet of a public park, a Class A felony, to twenty years all to be executed at the Department of Correction. For our review, Gardiner raises a single issue: whether the trial court erred when it determined that Indiana Code section 35-50-2-2(b)(1) (the “non-suspension rule”) prohibited it from suspending any portion of Gardiner’s twenty- year sentence where Gardiner had a prior Class D felony conviction that was subsequently reduced to a Class A misdemeanor conviction. Concluding that Gardiner’s prior conviction triggers the non-suspension rule, we affirm. * * *William P. Graham, Sr. v. State of Indiana - "Based on the foregoing, we conclude that Graham has not waived his claim by pleading guilty without bargained for benefit, and the trial court erred by using the same underlying felony to support the conviction of Graham for unlawful possession of a firearm by a serious violent felon and to support an habitual offender finding used to enhance the sentence for that count. We remand for the trial court to remedy this sentencing defect."Gardiner asks us to determine, as a matter of first impression, whether Indiana Code section 35-50-2-2(b)(1) prohibits a trial court from imposing an executed sentence below the statutory minimum when the defendant has a prior conviction for a Class D felony which has been subsequently reduced to a Class A misdemeanor. * * *
No Indiana court has addressed the issue of whether a reduction of a prior conviction from a felony to a misdemeanor pursuant to the terms of a plea agreement affects the application of the non-suspension rule in Indiana Code section 35-50-2-2(b)(1). * * *
We are sympathetic to the argument that application of the non-suspension rule under these circumstances fails to account for Gardiner’s good behavior. * * * We are frustrated by a sentencing scheme that so illogically limits the sentencing judge’s discretion. Rather, we believe that Indiana’s sentencing scheme should encourage judges to sentence defendants based on their demonstrated behavior rather than on speculation about future behavior, and we invite the legislature to consider amending the statutes to provide such discretion.
Despite our frustration, the current relevant statutes do not grant such discretion. * * *
Therefore, we hold that the non-suspension rule in Indiana Code section 35-50-2- 2(b)(1) remains in effect after a prior unrelated Class D felony conviction is subsequently reduced to a Class A misdemeanor. Rather, the application of the non-suspension rule depends upon the status of the prior criminal conviction at the time of sentencing for the subsequent criminal conviction. * * *
At the time of her conviction and sentence for the Class A felony, Gardiner had a prior unrelated Class D felony conviction. Therefore, the trial court is prohibited from suspending her sentence below the statutory minimum of twenty years. Even though her Class D felony conviction was later modified to a Class A misdemeanor, the non-suspension rule continues to apply. As a result, the trial court did not err when it refused to modify Gardiner’s executed sentence below twenty years. Affirmed.
CRONE, J., concurs.
BROWN, J., dissents with separate opinion. [which begins, on p. 10 of 11] I respectfully dissent from the majority’s conclusion that the trial court lacked the ability to suspend Gardiner’s sentence below the minimum sentence.
Gary Dennis Jackson v. State of Indiana is a 19-page, 2-1 opinion, where Judge Riley concludes:
Based on the foregoing, we conclude there was no evidence that the jury was influenced by the newspaper article, and, therefore, there was no manifest necessity to grant such a mistrial. Consequently, the dismissal of the jury at Jackson's second trial operated as an acquittal, and the subsequent trial on those same charges violated his right to be free from double jeopardy. Reversed.In Darby L. Hape v. State of Indiana , a 40-page opinion, Judge Vaidik writes:[Judge Bradford's 8-page dissent begins:] In my view, the trial court was within its considerable discretion to conclude that a manifest necessity existed to justify a mistrial and permit retrial in the instant case without violating Jackson's double jeopardy protections. For this reason, I respectfully dissent.
Darby L. Hape was convicted by a jury of Class A felony possession of methamphetamine with the intent to deliver and Class D felony resisting law enforcement and was found to be a habitual offender. The trial court sentenced Hape to an aggregate eighty-year term in the Department of Correction. After trial, the parties learned that the jury, during deliberations, read text messages saved in Hape's cellular telephone that were previously undiscovered by the State and the defense. The cellular telephone was admitted into evidence during trial as part of an exhibit showing the items confiscated from Hape at the time of his arrest. On appeal, Hape raises multiple issues, a number of which pertain to the accidental exposure of the text messages to the jury.NFP civil opinions today (2):Among other things, we conclude that text messages are intrinsic to the cellular telephones in which they are stored. Therefore, pursuant to Indiana Evidence Rule 606(b), Hape could not impeach the jury's verdict with them. We also conclude, as a matter of first impression in Indiana, that text messages are subject to separate authentication before being admitted into evidence. Here, the lack of proper authentication was not fundamental error because the text messages were harmless. We affirm Hape's convictions for possessing methamphetamine and resisting law enforcement. However, the State concedes that the evidence is insufficient to support his habitual offender adjudication, and we reverse the trial court's finding in this regard and remand for the trial court to vacate Hape's thirty-year habitual offender sentencing enhancement. Affirmed in part and reversed in part.
Term. of Parent-Child Rel. of A.S. and B.S. v. Scott Co. Dept. of Child Services (NFP)
Z.K. Diggs, Inc., C.B. Hill, Inc., and C. Field, Inc. v. Treasurer of Vanderburgh Co., et al. (NFP)
NFP criminal opinions today (11):
Jonathan Hankins v. State of Indiana (NFP)
Edward Chandler v. State of Indiana (NFP)
Carlos Portillo v. State of Indiana (NFP)
Scot Dean Silvers v. State of Indiana (NFP)
Robert A. Romero v. State of Indiana (NFP)
Paul Rykard Jr. v. State of Indiana (NFP)
Gary M. Hevner v. State of Indiana (NFP)
Joseph Shafer v. State of Indiana (NFP)
Maureen Schmidt v. State of Indiana (NFP)
Earl R. Schepers v. State of Indiana (NFP)
Troy A. Booker v. State of Indiana (NFP)
Posted by Marcia Oddi on March 31, 2009 12:38 PM
Posted to Ind. App.Ct. Decisions
Law - Dawn Johnsen vote may not be for another three weeks
The Blog of Legal Times reports:
Dawn Johnsen, nominated to be assistant attorney general in charge of the Office of Legal Counsel, may have to wait at least another three weeks for a vote in the Senate.Earlier ILB entries on Dawn Johnsen.Votes related to the federal budget are occupying most of the Senate’s time this week, and the office of Senate Majority Leader Harry Reid (D-Nev.) says that it has not reached an agreement with Senate Republicans for a time to debate Johnsen’s nomination. Democrats hope to reach an agreement on the timing in order to avoid the lengthy procedures involved if Reid has to move to cut off debate on the floor.
The Senate is scheduled to begin its two-week Easter recess at the end of the week, pushing a confirmation vote to the week of April 20 at the earliest.
Posted by Marcia Oddi on March 31, 2009 11:18 AM
Posted to General Law Related
Ind. Decisions - 7th Circuit issues one Indiana opinion today
In Re John W. Bartle (SD Ind., Judge Barker), is a 14-page opinion by Judge Rovner:
Debtor-appellant John W. Bartle owes the United States millions in unpaid taxes. In December 2004, he filed a voluntary bankruptcy petition under Chapter 11 of the Bankruptcy Code. Two and a half years after Bartle sought Chapter 11 protection, the United States moved to dismiss the bankruptcy on the ground that Bartle’s debts dwarfed his financial resources and he realistically could not effectuate a re- organization. The district court granted the motion with- out conducting a hearing and subsequently denied Bartle’s motion to alter or amend the dismissal order. Bartle appeals, contending that dismissal of the bank- ruptcy on less than twenty days’ notice and without the opportunity to be heard requires reversal. But because Bartle has not articulated what evidence or argument he would have presented in opposition to the government’s motion, we find any error to be harmless.
Posted by Marcia Oddi on March 31, 2009 11:15 AM
Posted to Ind. (7th Cir.) Decisions
Law - Gary Post-Tribune parent company files for bankruptcy [Updated]
Just posted on the NWI Times website:
CHICAGO | The Sun-Times Media Group, owner of the Chicago Sun-Times, the Post-Tribune in Merrillville and dozens of suburban newspapers, filed for Chapter 11 bankruptcy Tuesday, making it the fifth newspaper publisher to seek protection from creditors in recent months.[Updated] Here is the story from the point of view of the Sun-Times itself.The step, brought on by a precipitous decline in advertising revenue, means both of Chicago's major daily newspapers are operating under bankruptcy protection. Tribune Co., the parent company of the Chicago Tribune, Los Angeles Times and other newspapers, filed for Chapter 11 in December. * * *
As part of cost-cutting measures, the company previously announced it would sell office buildings housing its operations, including the Post-Tribune’s office in Merrillville. It also turned over delivery of The Post-Tribune to the Chicago Tribune, cut staff there and moved some operations, including printing, from Northwest Indiana to Chicago. * * *
The dire financial condition of Chicago's newspapers mirrors the situation in Philadelphia, where the publisher of The Philadelphia Inquirer and Philadelphia Daily News filed for bankruptcy protection in February.
Other cities with two daily newspapers have seen the industry's crisis whittle away competition this year. The Rocky Mountain News closed, leaving The Denver Post, while the Seattle Post-Intelligencer went online only, leaving The Seattle Times without a mainstream daily print rival.
Posted by Marcia Oddi on March 31, 2009 11:12 AM
Posted to General Law Related
Environment - "Megadairy review continues: Latest design submitted to IDEM includes earthquake provisions"
Pam Tharp has a long story today in the Richmond Palladium-Item, on Liberty Dairy LLC, a 2,500-cow megadairy proposed last year for Union County. Some quotes:
LIBERTY, Ind. -- German dairyman Frank Achelpoehler has submitted a new design plan for Liberty Dairy LLC, one that addresses earthquakes.Here are earlier ILB entries on the Liberty Dairy proposal.Environmental safety during an earthquake was a concern raised at a December public hearing on the megadairy's federal wastewater permit. Union County is located within the New Madrid fault line.
The new plan submitted March 10 to the Indiana Department of Environmental Management includes two smaller manure lagoons instead of a single large lagoon. It also includes a large containment ditch that would hold manure that might escape the raised lagoons if an earthquake occurred.
Land will be sloped so the waste will flow into the ditch, which circles the farmstead on three sides, Achelpoehler said.
The proposed 2,500-cow dairy to be built on U.S. 27 in Harrison Township was announced almost a year ago, but the project remains on hold until IDEM issues it a federal wastewater permit.
IDEM has 180 days after a permit application is filed to issue a permit, but that clock stops each time the agency asks for more information. IDEM is required to address all issues concerning the proposed permit that were raised at the hearing.
"As part of our further review of facility plans and issues raised during the 30-day public comment period, IDEM requested the applicant address and submit a lagoon design that would incorporate additional protective environmental safeguards," said IDEM spokesperson Amy Hartsock. * * *
IDEM already required a groundwater monitoring plan for Liberty Dairy to track what happens beneath the lagoons. The monitoring wells are to be tested twice a year with the results available to the public.
The dairy also was required to submit a construction certification plan to ensure the earthen manure storage structures are built according to the plans, and the engineer also must sign off on the construction.
Posted by Marcia Oddi on March 31, 2009 08:56 AM
Posted to Environment
Courts - "Kentucky students' court operates just like real thing"
From a story by Chris Otts in the March 30th Louisville Courier Journal:
Melissa Moore is not a lawyer.Here is the website of the National High School Mock Trial Competition. South Bend's John Adams High School has placed in the top ten in recent years.But the Eastern High School junior sure looked and acted the part in a packed courtroom on the 10th floor of the Jefferson County Judicial Center yesterday.
"The opposing counsel is offering evidence that is improper pursuant to rule 608-B," Melissa told Boyd Circuit Judge Marc Rosen during a "trial" that lasted more than two hours. It was the final round of the annual Kentucky High School Mock Trial Tournament.
Melissa joined Eastern seniors Ashley Gei and Candace McLaurine in acting as prosecutors, while Madison Central High School provided the defense in a fictitious trial involving a high school student who was caught dealing marijuana by an undercover police officer.
The jury was a group of lawyers and judges from around the state, including Kentucky Court of Appeals Judge Janet Stumbo.
Madison Central won and will represent Kentucky in the national mock trial competition in Atlanta this May. * * *
About 400 students participated, and 30 courtrooms were used during the three-day competition, said Patrick Yewell, an official with the Kentucky Administrative Office of the Courts, which runs the state program.
Students not only play the lawyers in the trials, but they portray the witnesses as well. When they invoked procedural rules, they were not reading from scripts.
Ashley said the Eastern team members had studied the case for about seven months in three-hour practices, five days a week. "I've wanted to be a lawyer since I was in seventh grade," Melissa said.
Eastern High principal Jim Sexton, who was in the courtroom yesterday to cheer on the team, said mock trial is as big a deal as basketball to the Middletown school. The team grew out of a popular Justice and Law elective course for juniors and seniors, he said.
Posted by Marcia Oddi on March 31, 2009 08:38 AM
Posted to Courts in general
Monday, March 30, 2009
Ind. Courts - "The Indiana Supreme Court is seeking comments from judges, attorneys and the public as it considers proposed rule amendments governing Alternative Dispute Resolution"
A release from the Court this evening begins:
The Indiana Supreme Court is seeking comments from judges, attorneys and the public as it considers proposed rule amendments governing Alternative Dispute Resolution. The proposed changes include the following:
- Amending Rule 2.7 to add a section (F) that would permit a non-lawyer mediator to complete certain documents as part of the mediation process without violating the rules governing the unauthorized practice of law.
- Adding a new Rule (2.12) that would permit a mediator to provide legal information, but not legal advice to parties, without violating the rules governing the unauthorized practice of law.
Posted by Marcia Oddi on March 30, 2009 06:17 PM
Posted to Indiana Courts
Ind. Decisions - Transfer list for week ending March 27, 2009
I'm told there is no transfer list for the week ending March 27, 2009.
Posted by Marcia Oddi on March 30, 2009 03:49 PM
Posted to Indiana Transfer Lists
Ind. Law - "Banks Starting to Walk Away on Foreclosures"
From the NY Times today, a long story, dateline South Bend, reported by Susan Saulny, on mortgage foreclosures. A quote:
City officials and housing advocates here and in cities as varied as Buffalo, Kansas City, Mo., and Jacksonville, Fla., say they are seeing an unsettling development: Banks are quietly declining to take possession of properties at the end of the foreclosure process, most often because the cost of the ordeal — from legal fees to maintenance — exceeds the diminishing value of the real estate.So how might this tie in with the push to educate Indiana lawyers and judges in helping homeowners facing foreclosure? The story continues:The so-called bank walkaways rarely mean relief for the property owners, caught unaware months after the fact, and often mean additional financial burdens and bureaucratic headaches. Technically, they still owe on the mortgage, but as a practicality, rarely would a mortgage holder receive any more payments on the loan. The way mortgages are bundled and resold, it can be enormously time-consuming just trying to determine what company holds the loan on a property thought to be in foreclosure.
In Ms. James’s case, the company that was most recently servicing her loan is now defunct. Its parent company filed for bankruptcy and dissolved. And the original bank that sold her the loan said it could not find a record of it.
“It is what some of us think is the next wave of the crisis,” said Kermit Lind, a clinical professor at the Cleveland-Marshall College of Law and an expert on foreclosure law.
The problem seems most acute at the bottom of the market — houses that were inexpensive to begin with — and with investment properties, where investors and banks want speedy closure by writing off bad loans as losses. Banks and investors typically lose 40 percent to 50 percent of their investment on every foreclosure.Here is a list of earlier ILB entries mentioning "foreclosure."Guy Cecala, publisher of Inside Mortgage Finance, an industry newsletter, said some properties had become such liabilities for investors that it was not even worth holding on to them to strip valuable fixtures, like kitchen appliances, toilets and hardware.
“The whole purpose of foreclosure is to take title of the property, sell it and recoup what money you can,” Mr. Cecala said. “It’s just a sign of the times that things are so bad no one wants to take possession of the property.”
In South Bend, boarded-up houses for whom no one has stepped forward are dotting the landscape, adding a fresh layer of blight to communities that were already scarred from the area’s industrial decline.
The city is hoping to create a new type of legal mediation process that would bring together the homeowners and the mortgage holders to settle their disputes while allowing the owners to remain in the home — considered crucial to any stabilization effort.
“I’d say in the last three or four months, we’ve seen dozens of these cases,” said Chuck Leone, the South Bend city attorney. “We see it one of two ways. One is that the bank will simply dismiss the foreclosure complaint. The other is that the mortgage holder will follow through and take a judgment of foreclosure, but then not schedule the property for sheriff’s sale.”
Posted by Marcia Oddi on March 30, 2009 03:06 PM
Posted to Indiana Law
Ind. Law - "It's the Law: Burning yard waste can lead to troubles"
Ken Kosky's NWI Times' "It's the Law" column for today, looks at illegal burning. Some quotes:
Fire officials say it's common, especially at this time of year, for people to rake up their leaves, branches and other yard waste and burn it.Not to quibble, but the ILB does not think open burning is allowed in, for instance, Marion County, either.Officials are reminding residents that open burning is illegal for residents of Lake and Porter counties, and for residents of Clark and Floyd counties in southern Indiana because of unacceptably high ozone levels.
People who violate the open burning rules can be fined, and they can be held liable if their fire gets out of hand and damages other people's property.
"We've been getting several open burning complaints," Valparaiso Assistant Fire Chief Dan Lamb said. "We go out and advise them (of the rules) and ask them to put it out. If they don't, we will call law enforcement."
There are limited exceptions to the open burning statute, such as ceremonies, cooking and bonfires.
The Indiana Department of Environmental Management (IDEM) recommends alternatives to burning like composting yard waste.
Posted by Marcia Oddi on March 30, 2009 12:22 PM
Posted to Environment | Indiana Law
Not law! - Bob Knight and friends in hilarious Guitar Hero ad
Don't miss it. From the Indianapolis Star: "The latest "Risky Business"-style commercial for "Guitar Hero," featuring Mike Krzyzewski, Roy Williams, Rick Pitino, Bob Knight and Metallica, aired Sunday."
Posted by Marcia Oddi on March 30, 2009 12:18 PM
Posted to General News
Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)
For publication opinions today (1):
In Brandon Vernon v. State of Indiana, a 7-page opinion, Judge Vaidik writes:
Brandon Vernon appeals the revocation of his probation. Specifically, he contends that the trial court erred in not allowing him to present evidence that explained and mitigated his probation violation. Because Vernon did not admit to all the allegations in the probation violation petition, the trial court held an evidentiary hearingNFP civil opinions today (0):
on the remaining allegations. Vernon was thus afforded the opportunity at this evidentiary hearing to present evidence that suggested that the violation did not warrant revocation. We therefore affirm.
NFP criminal opinions today (2):
State of Indiana v. Brian Custer (NFP) - "Because Custer‟s request for final disposition was made in response to a detainer lodged against him on the basis of an untried information and the State failed to try him within 180 days, the trial court properly granted Custer‟s motion for dismissal. "
Vernon Teague v. State of Indiana (NFP)
Posted by Marcia Oddi on March 30, 2009 12:04 PM
Posted to Ind. App.Ct. Decisions
Ind. Law - "Meth lab cleanup a hassle for landlords"
On August 6, 2006, the ILB posted this entry, headed: "Who should pay price for meth messes?" Here is what I wrote at the conclusion of the entry:
Here is the proposed rule, #06-125, published in one of the final issues of the Indiana Register. A public hearing was held on 6/27/06. All that remains now is for the IDEM Commissioner, after reviewing the public comments, to finalize the rule.The "authorizing statute" is IC 13-14-1-15, found at SECTION 6 of SEA 444-2005 (at p. 4 of the PDF).What does the proposed rule require? Think of a person with a rental property, or a farmer with an outbuilding, that had been turned into a meth lab without the knowledge of the property owner. The duties of the property owner are described starting on p. 6 of the document. The owner of the contaminated property shall clean up the property as required under the new rule before further use of the property or transfer of any interest in the property. (318 IAC 1-3-2) The property must be decontaminated under the supervision of a qualified inspector. (318 IAC 1-3-5)
How much is this going to cost the property owner? Nowhere in the information in pages 1 and 2 of the proposed rule does anyone venture a quess. But the cleanup contractors will make money. See this statement on p. 2:
[T]he economic impact of this rulemaking cannot be meaningfully quantified at this time. Compliance with this rule will be a significant cost to property owners affected by this rule. At the same time, compliance with this rule would allow remediation contractors, wrecking contractors, and other contractors to receive payment for services performed under this rule. The Department expects the costs to property owners to roughly balance the benefits to contractors who clean up these properties.Well yes.So does this proposed rule go beyond the directive set in the authorizing statute? Or is it the statute that places these responsibilities on the property owner? In either case, if not the property owner, then who should be responsible for the cost of the cleanup?
Here are background ILB entries from 12/27/04, 1/1/06, 8/6/06, and 3/23/07.
Today Virginia Ransbottom has this lengthy report in the South Bend Tribune. Some quotes:
PLYMOUTH — Growing along with the number of illegal methamphetamine labs are landlords left with contaminated housing to clean up.Here is IDEM's website on cleanup of illegal drug labs."It's up to the property owner to get a certificate of decontamination," said Wes Burden, Marshall County Health Department administrator.
After the meth suppression unit removes the bulk of a meth lab's contents, it's Burden's job to condemn the property and inform owners they need proof of cleanup from the Indiana Department of Environmental Management. * * *
"It costs at least $1,500 to get tested and prove a meth lab site is clean," Burden said. "And if it's not, it could cost tens of thousands of dollars stripping off walls and floors."
According to Indiana's drug lab cleanup rule that protects future occupants from exposure to chemicals, property owners must hire an inspector qualified by IDEM.
"But there aren't any in the area, and the closest one in Fort Wayne wants over $2,000 just to inspect the place," said Rex Crump, a property manager for more than 240 apartments in the area.
"That doesn't include if the walls need to be torn out, and the only company qualified to do that is the same company that does the testing," Crump said. * * *
Crump's now hoping a local business will earn IDEM certification to become an inspector that doesn't charge as much for testing. Crump's other option is to leave the dwelling uninhabited.
Although Crump conducts credit, criminal and background checks on tenants, looking to the future, he's started a zero-tolerance drug policy, asking tenants and staff to report any suspicious behavior and immediate eviction for violators.
He's also joined Plymouth Mayor Mark Senter's anti-meth commission.
"It's another era of the rental business," he said. "We don't know if it can be covered by a special insurance rider, but it should be a higher felony count if it endangers other people."
The health administrator said the penalty for noncompliance with IDEM's decontamination rules falls under a code violation and is a class B misdemeanor.
"We check them during the day to make sure no one has crossed the tape line," Burden said. "But eventually the (abandoned dwellings) will slip through the cracks."
Posted by Marcia Oddi on March 30, 2009 11:35 AM
Posted to Environment | Indiana Law
Courts - "In Britain, Web Leaves Courts Playing Catch-Up "
The ILB found this article in today's NY Times, by Noah Cohen, really interesting. Here are some quotes:
ON March 17, hours after publishing leaked documents on its Web site showing the lengths Barclays had gone to in order to reduce the taxes it paid in Britain, The Guardian newspaper was ordered by a judge to take the material down. His reasoning was that the bank had a right to confidentiality.In the ruling, the judge in London, Nicholas Blake, also added a peculiar twist: The Guardian must not tell readers how easy it is to locate the documents at Web sites outside of Britain. It was only the latest example of British courts trying to preserve what it saw as litigants’ rights even in the face of an onslaught of information on the Internet. To some, this may be a final, futile effort. * * *
“The Internet is throwing sharp relief to the illogical nature of our system,” said Alan Rusbridger, the editor of The Guardian. “Technology is way ahead of the law, and the law is limping along trying to make sense of it.”
The effect of the Internet on judges’ rulings is not a uniquely British problem, said Jonathan Zittrain, a Harvard law professor who taught at Oxford. There is at least one example, he said, of an American court ordering a Web site not to link to content it had been ordered to take down. But he added that “British courts may be a little more confident of their own power, and be less willing to cave in to practicalities.”
The Barclays case pits two interests against each other, said James Edelman, a law professor at Oxford who argues media law cases. Since 1988, Professor Edelman said, British law has given great protection to the right of confidentiality, applying it to third parties like The Guardian, which received the documents from someone else. Yet, the “public interest” in learning about what is contained in those documents, he said, can often outweigh confidentiality considerations.
Finally, there is a basic factual question: is the material already in the public domain? And this is where the Internet throws a wrench into the proceedings.
The courts recognize, Professor Edelman said, that there is no point in banning the publication of something already widely disseminated. In the Barclays case, the court met in secret to determine if the material had crossed that threshold. * * *
Professor Edelman of Oxford said that Judge Blake’s order could represent a last example of British courts ignoring the changed reality of by the Internet.
“What is significant about the ruling,” he said, “is that it will open people’s eyes that even if you can get an injunction to preserve information that is able to be obtained over the Internet, I suspect that the injunction won’t last.” The publicity over the injunction creates more interest in the material, leading other sites to publish it. The Guardian will be able to return to court, he said, and argue the injunction no longer serves any purpose.
Posted by Marcia Oddi on March 30, 2009 11:27 AM
Posted to Courts in general
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 3/30/09):
- None currently scheduled
Next week's oral arguments before the Supreme Court (week of 4/6/09):
Next Thursday, April 9th
- 9:00 AM - Matter of Estate of Lawrence W. Inlow - The Hamilton Superior Court approved the request by a decedent's estate for reimbursement of funeral and burial expenses from wrongful death settlement proceeds. The Court of Appeals affirmed, holding that Indiana's wrongful death statute does not require itemization of settlement proceeds fur such reimbursement. Matter of Estate of Inlow, 893 N.E.2d 734 (Ind. Ct. App. Sept. 18, 2008), vacated. [See ILB COA summary here.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
- 9:45 AM - Jim Kovach v. Alpharma, Inc. - Following their son’s death from a medical overdose, Plaintiffs sued the alleged makers and distributors of the cup used to administer the medicine and sought recovery on product liability and warranty theories. The Marion Superior granted those defendants summary judgment. The Court of Appeals reversed the summary judgment and remanded. Kovach v. Alpharma, Inc., 890 N.E.2d 55 (Ind. Ct. App. July 16, 2008), vacated. [See ILB summary of the 2-1 COA opinion here - 5th case.] The Supreme Court has granted petitions to transfer the case and has assumed jurisdiction over the appeal.
This week's oral arguments before the Court of Appeals (week of 3/30/09):
Tuesday, Tuesday, March 31st:
- 2:00 PM - Jim and Carol Daily v. City of Columbus, Board of Zoning Appeals - Jim and Carol Daily ("the Dailys") appeal from the trial court's order affirming the City of Columbus Board of Zoning Appeals' ("the BZA") denial of the Dailys' temporary use application for a farmers market on their 2.1-acre lot in Columbus, Indiana in their action for a petition for writ of certiorari and complaint for declaratory judgment. The Dailys appeal, arguing that the trial court erred: (1) by concluding that the creation of the Dailys' lot in 1973 violates the current City of Columbus Zoning Ordinance; and (2) in concluding that the Dailys' lot lacks the attribute of "access and frontage" under the current City of Columbus Zoning Ordinance. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Kirsch. [Where: Court of Appeals Courtroom - Webcast]
- 5:00 PM - Rosalynn West v. Betty Wadlington, et al - Plaintiff Rosalynn West sued her fellow churchgoers, Betty Wadlington and Jeanette Larkins, and Larkins' employer, the City of Indianapolis, claiming defamation and invasion of privacy. West's complaint stems from a letter about West that Wadlington wrote and addressed to their church board of trustees and board of deacons. Wadlington included this letter in an email she sent to Larkins at her work email address. Larkins, using her work email, then forwarded the email on to over eighty other email addresses. Some of the allegedly defamatory language used in the letter had religious connotations. The Defendants filed a motion to dismiss West's complaint for lack of subject matter jurisdiction, arguing that the Free Exercise clause of the First Amendment prevented the court from determining whether the statements in the email were defamatory or false. The trial court granted the motion to dismiss, and West appeals. The main issue on appeal is whether the Free Exercise clause of the First Amendment prevented the trial court from hearing West's claims. The Scheduled Panel Members are: Judges Bailey, Mathias and Barnes [Where: Wynne Courtroom, Indiana University School of Law - Indianapolis]
Wednesday, April 1st:
- 2:00 PM - Jay B. Stokes v. State of Indiana - [As noted last week, further information is not available from COA site - link leads to this]
Next Tuesday, April 7th:
- 1:30 PM - Nunn Law Office v. Peter H. Rosenthal - Appellant Nunn Law Office ("Nunn") appeals the trial court's award of $1462.88 in attorney's fees in its petition for division of attorney's fees arising out of Nunn's and Appellee attorney Peter Rosenthal's successive representation of Joseph Carpenter in Carpenter's personal injury action against Terry Rosengarten. Upon appeal, Nunn claims that the trial court erred in failing to issue written findings of fact and conclusions thereon pursuant to Trial Rule 52 and in basing its award upon quantum meruit rather than upon Nunn's contingency fee agreement with Carpenter. The Scheduled Panel Members are: Judges Najam, Barnes and Bradford. [Where: Supreme Court Courtroom - Webcast]
- 4:00 PM - Sheehan Construction Company, et al v. Continental Casualty Company, et al - This is a dispute over the scope of coverage of comprehensive general liability insurance policies Continental Casualty issued to Sheehan Construction, a general contractor, and Indiana Insurance issued to Somerville Construction, a subcontractor. A class of plaintiffs alleged their homes sustained water damage because of faulty workmanship. The insurers obtained summary judgment on the ground damage naturally resulting from defective workmanship is not an "accident" for which the policies provide coverage. The Class asserts the insurance industry broadened the scope of its standard policies in 1986 to cover such damage. The Scheduled Panel Members are: Judges Riley, May and Brown [Where: University of Southern Indiana, Carter Hall D at University Center, 8600 University Blvd., Evansville]
Next Wednesday, April 8th:
- 12:45 PM - Gabino Gonzalez v. State of Indiana - A pickup truck Gabino Gonzalez was driving while he was intoxicated hit a school bus. A jury found him guilty of criminal mischief and driving while intoxicated. Before his trial he was negotiating a guilty plea and while it was pending he wrote a letter to the school corporation in which he apologized for the accident and admitted he was drinking that day. The trial court allowed the State to enter that letter into evidence. Gonzales argues on appeal that was error because a letter written as part of guilty plea negotiations is inadmissible at a trial, and because the letter was hearsay. Apparently Gonzales had written a different letter in Spanish but the letter presented at trial was a translation by someone else. The Scheduled Panel Members are: Judges Riley, Bailey and May. [Where: Sam and Paul Robinson Performing Arts Center, Our Lady Providence High School, 707 Providence Way, Clarksville]
Next Thursday, April 9th:
- 10:00 AM - Frederick William Lacava v. Daniel and Geoffrey Lacava - Frederick LaCava was sued by his adult sons, Daniel and Geoffrey, for alleged sexual abuse during their minority. Daniel and Geoffrey claimed they suffered from repressed memories of the events. LaCava filed a motion for summary judgment claiming that the action was barred by the statute of limitation, either because Daniel and Geoffrey did not suffer from repressed memory or because their mother's knowledge of the events during their minority is imputed to them. The trial court denied the motion, finding genuine issues of material fact as to when Daniel and Geoffrey had memories of the events and whether their mother was complicit in LaCava's misconduct. This court has accepted LaCava's interlocutory appeal of the trial court's denial of his motion for summary judgment. The Scheduled Panel Members are: Judges Riley, Kirsch and Robb. [Where: Sheraton Hotel Conference Center, 31 West Ohio Street, Indianapolis]
Posted by Marcia Oddi on March 30, 2009 09:10 AM
Posted to Upcoming Oral Arguments
Sunday, March 29, 2009
Ind. Courts - Judicial Center's Legislative Update #11
The second half of the legislative session is well underway this week. April 15th is the last day for 3rd reading of bills in the opposite house (meaning that there are only two more weeks, starting tomorrow, for committee meetings), and the last day for adoption of conference committee reports without Rules Committee approval. April 29th is the last day for adjournment.
Here are the bills of interest to the Judicial Center heard this week in committee.
Posted by Marcia Oddi on March 29, 2009 01:20 PM
Posted to Indiana Courts
Ind. Decisions - Still more on "Federal magistrate urges ban of schools’ faith study"
For those interested in the case involving the Huntington County Community Schools and the establishment clause, about which the ILB had entries on Feb. 4 and March 21, it turns out the blog Dispatches from the Cultural Wars has been covering the case. This entry today has links to thre relevant decisions and, via another blog, Religion Clause, the underlying Supreme Court decisions.
Posted by Marcia Oddi on March 29, 2009 10:31 AM
Posted to Ind Fed D.Ct. Decisions
Ind. Law - "Indiana laws govern use of off-road vehicles"
The South Bend Tribune has an article today on the laws governing off-road vehicles (ORV). The long article begins:
With many Hoosiers enjoying the warmer weather and the outdoor activities associated with it, the Department of Natural Resources is reminding off-road vehicle operators about the laws regarding registration of their ORVs and them being operated on public roads.The article is useful and contains several links to more information, but nowhere in the article is the term "off-road vehicle" defined. So the ILB turned the the statute, IC 14-16-1, "Off-Road Vehicles," for a definition. In vain.All ORVs operated on public property must be registered with the DNR. In addition, all ORVs purchased after Dec. 31, 2003, must be registered.
Registration forms are available from most dealers, most license branches and the Department of Natural Resources Customer Service Center, or they can be printed from the Web site www.in.gov/dnr/ outdoor/ohv/ohvfaq.htm.
Any ORV five model years or less, and purchased after Dec. 31, 2005, must have a certificate of title from the Bureau of Motor Vehicles. This titling change came about to help curb the theft and sale of stolen ORVs from within Indiana and surrounding states.
Many ORV operators have been misinformed or have not taken the time to educate themselves about the laws pertaining to operating their ORVs on public roads, and in some counties this presents problems for law enforcement.
"Off-road vechicle" is not defined in the statute. The term "vehicle" is defined, at IC 14-16-1-7:
IC 14-16-1-7 "Vehicle" definedSec. 7. As used in this chapter, "vehicle" refers to an off-road vehicle or a snowmobile.
As added by P.L.1-1995, SEC.9. Amended by P.L.186-2003, SEC.40.
Posted by Marcia Oddi on March 29, 2009 09:05 AM
Posted to Indiana Law
Ind. Law - "Over the limit; under arrest"
Gavin Lesnick of the Evansville Courier & Press reports today on getting intoxicated drivers of the roads. Some quotes from the lengthy story:
On a recent night, authorities found Evan Rohrer.The 24-year-old Evansville resident was on his way home from a Newburgh bar when deputies pulled him over on Green River Road. A breath test revealed an intoxication level of 0.09 — just over the legal limit of 0.08.
Rohrer spent the night in jail.
"That was definitely a wake-up call," he said, sitting in his Southeast Side apartment a few days after a judge suspended his license. "... I want everybody to know the feeling of being in handcuffs and put in a holding cell is not a good feeling at all."
Rohrer was caught during a saturation patrol, an enforcement effort that adds roving deputies, officers and Indiana State Police troopers onto area roadways specifically to catch drunken drivers. Those and sobriety checkpoints are two primary ways local authorities emphasize the effort to get intoxicated drivers off the road.
The patrols can happen virtually any night, though more officers work traditionally busy times such as weekends and holidays, said Vanderburgh County Sheriff's Department Chief Deputy Dave Wedding.
Sobriety checkpoints happen with less frequency and typically result in far fewer arrests. But the checkpoints double as a deterrent, Wedding said, ideally keeping intoxicated people from ever getting behind the wheel. Their precise location, date and time are never divulged in advance.
During them, law enforcement adheres to a strict pattern — stopping every third car, for example. Signs must be posted well in advance, giving motorists enough time to turn off if they so choose. If they do continue through, there are no exceptions. Even a city bus or an off-duty police car would be stopped, Wedding said.
Posted by Marcia Oddi on March 29, 2009 08:41 AM
Posted to Indiana Law
Environment - "Benzene-laden groundwater has been seeping into Lake Michigan from an old tank farm at U.S. Steel Gary Works"
Gitte Laasby reports today in the Gary Post-Tribune in a story that begins:
For several years, benzene-laden groundwater has been seeping into Lake Michigan from an old tank farm at U.S. Steel Gary Works.The company plans to install a $1.4 million system that would treat the benzene starting in August or September. Officials will present the plan to the public at a meeting on Tuesday in Gary.
U.S. Steel discovered the problem last summer when it tested soil and groundwater near an on-site landfill for contamination as part of a federal order.
Tamara Ohl, project manager for the U.S. Environmental Protection Agency, said benzene probably leaked from an old tank farm at the coke plant that was demolished years ago. The coke plant is surrounded by a breakwall. When a crack occurred in late 2001, it allowed the movement of groundwater to the lake.
"We don't know exactly when the plume reached the lake. It was the (monitoring) data from 2008 that really got this going," Ohl said.
The company found benzene in groundwater in the area of the plume up to 600 times the federal drinking water limit. Contamination is leaking into the lake about a mile from the nearest drinking water intake. * * *
Ohl said the plume is still seeping into the lake, but the company plans to install a $1.4 million treatment system with 11 wells that will remove the benzene and cycle the water back to the ground.
"The system will stop the plume. It will capture it and strip the benzene out," she said. "Short of any hiccups, we're expecting they'd start constructing in the next quarter and by the third quarter have it up and running, about August-September."
U.S. Steel does not plan to repair the breakwall, which would require a permit from the Army Corps of Engineers.
"U.S. Steel believes that its plans to install the active remediation system ... is more proactive and will achieve the desired results in a much shorter timeframe," U.S. Steel spokeswoman Courtney Boone said in an e-mail.
Ohl said the company may take other measures after that. She did not know whether U.S. Steel would face fines or other penalties for the contamination.
Neither EPA nor U.S. Steel knows how much benzene has leaked into Lake Michigan because they have not yet tested the water.
Posted by Marcia Oddi on March 29, 2009 08:28 AM
Posted to Environment
Court - "Fighting Over Child Support After the Pink Slip Arrives"
Julie Bosman reports today in a story on the front page of the Sunday NY Times. Some quotes from the lengthy story:
The same story echoed a dozen times through Room E8 of Manhattan Family Court in a single day: fathers, pinched by the recession, pleading for a reduction in child support.A salesman at Saks Fifth Avenue who is estranged from his teenage daughter said he feared he would be included in the next round of layoffs expected at his store.
A man who had been laid off from a factory said he managed to find work at Mets games, but for less pay, $9 an hour. Another man, on the verge of eviction, begged for a break from his $315 monthly payments.
“Last week was my child’s birthday, and I couldn’t get him a present,” he said, burying his head in his hands. “This is killing me.”
Since January, Family Court in New York has been filled with urgent requests like these, alarming judges and overwhelming calendars with what are known as modification cases.
Similar patterns are unfolding across the country: In Clark County, Nev., which includes Las Vegas, the district attorney’s family support division has received an unusually high number of calls from parents who previously paid diligently but are now having trouble.
The child-support office in Milwaukee saw a 20 percent spike in the number of custodial parents seeking enforcement of support orders last year, with most of the increase coming in the fall as the unemployment rate there began to creep upward.
To explain why they can no longer pay as much per month, the parents, typically fathers, cite layoffs, cutbacks in work hours and the loss of homes to foreclosure. Presented with documentation of falling incomes and rising expenses, judges often have little choice but to grant the downward adjustments, even in the face of protests from mothers struggling to support children. * * *
The amount of child support varies based on individual family circumstances, but New York State begins with these guidelines: A noncustodial parent generally pays 17 percent of gross income for one child, 25 percent for two children and up to 35 percent for five or more children, as well as a share of child care, medical and education expenses. * * *
Lisa J. Marks, the director of Child Support Enforcement in Milwaukee, said her office has seen an influx of noncustodial fathers who have lost jobs in sales, construction and the service industry.
“We have seen individuals who have had fairly good income, and it’s not there any more,” she said.
“It’s really a teetering issue for child support offices,” Ms. Marks said. “You have one party who is really desperate because they’re not getting the full amount of support. And their expenses have increased, and their hours are probably decreasing.”
On the flip side are the fathers, and “they don’t have a job at all anymore,” she said. “You try to maintain fairness.”
The court will typically order fathers to pay a portion of their unemployment benefits in child support. But if their unemployment runs out, and they have no income, the court will temporarily resort to what is called “open support,” Ms. Marks said. What that means, she explained, is “you don’t have to pay any child support.”
Posted by Marcia Oddi on March 29, 2009 08:20 AM
Posted to Courts in general
Environment - Even more on: Major pipeline break near Indiana border
Updating this ILB entry from Oct. 5, 2008, Len Wells of the Evansville Courier & Press reports today:
ELLERY, Ill. — The cost to clean up a massive crude oil spill in rural Wayne County, Ill., last summer now includes the purchase of land most affected by the event.Court records reveal Marathon Oil Corp. has spent more than $750,000 to purchase two parcels of land at the center of the spill.
When Marathon's 20-inch interstate transit line ruptured on Aug. 20, some 5,790 barrels, or 243,180 gallons, of crude oil spilled onto a remote farm northwest of Golden Gate.
The largest area affected by the spill was a farm known as the Southern Illinois Land Trust, owned by Dr. William E. Ricketts of Crete, Ill. A nearby timber-lined slough, owned by Robert and Janice Anniss of rural Ellery, also was impacted by the spill.
The high-pressure pipeline that ruptured runs from a tank farm at Patoka, Ill., to Cattletsburg, Ky.
Deed transfers filed in Wayne County Clerk Donna Endsley's office reveal that Marathon paid the Southern Illinois Land Trust $520,000 for 105.69 acres, or just more than $4,900 per acre. * * *
"Considering the geographic area covered, the impact appears to be fairly minimal," said Illinois EPA spokesperson Maggie Carson. Because of its remote location, no population centers were affected, and emergency workers were able to keep the oil out of the nearby Little Wabash River, which is the drinking water source for several small communities in Wayne County.
Posted by Marcia Oddi on March 29, 2009 08:06 AM
Posted to Environment
Saturday, March 28, 2009
Courts - "Residents of Luzerne County, Pa., wondered what led two judges to send thousands of juveniles to detention centers in return for kickbacks — and why they weren’t stopped"
Updating this ILB entry from March 26th, Ian Urbina has a long story in the NY Times today headed "Judges’ Kickback Scheme Thrived Despite Red Flags ." Here are a few quotes:
WILKES-BARRE, Pa. — Things were different in the Luzerne County juvenile courtroom, and everyone knew it. Proceedings on average took less than two minutes. Detention center workers were told in advance how many juveniles to expect at the end of each day — even before hearings to determine their innocence or guilt. Lawyers told families not to bother hiring them. They would not be allowed to speak anyway. * * *After reading the story, it still isn't clear to me how this went on unchecked for so long. In the third page of today's story there is mention that at some point federal authorities began investigating the judges, and "in a separate review, state auditors found that the detention centers were systematically overbilling the county ."While the scandal continues to ripple nationally as legal experts debate whether juvenile courts have sufficient oversight, here in Luzerne County people are grappling with more immediate questions: How did two native sons, elected twice to the bench to protect children and serve justice, decide to do the opposite? And why did no one stop them?
I can't help thinking that some of the problems may be tied to the inaccessibility of juvenile court proceedings and records to the public. I found online a 10-year report on Access to Juvenile Courts, that goes through each state's laws. At least in 1998, Pennsylvania had this law:
Pa. Cons. Stat. Ann. tit. 42 § 6307 (1998): Members of the public are not allowed to inspect court files unless a person obtains permission from the court and the court finds that he/she has a legitimate interest in the case or the court.In other words, it would have been difficult for a parent or a reporter to even begin to explore the possibility of a pattern of abuse, because the judge controlled access to the records. Similarly, juvenile proceedings were/are closed to the press and public.
[MORE] How Appealing has just posted link to this story from The Citizens Voice of Wilkes-Barre, Pennsylvania, reported by Michael R. Sisak. Some quotes:
The prosecutors who worked in disgraced Judge Mark A. Ciavarella Jr.’s courtroom share part of the blame for the injustices he perpetrated on thousands of Luzerne County juveniles, said Marsha Levick, the legal director of the Juvenile Law Center.The Wilkes-Barre paper has assembled a large archive of documents, earlier stories, and the like. My only quibble is that the items in the list are not identified by date - you have to access the item to learn its date.“There were other people in the courtroom who stood by here for five years while these kids’ rights were being violated,” Levick said Thursday, after the state Supreme Court authorized Judge Arthur Grim to clear the records of hundreds of the lowest-level offenders who appeared before Ciavarella without an attorney between 2003 and May 2008.
“All of us who work in the system have a collective responsibility to make sure that kids’ rights are enforced,” Levick said. “The difference between a prosecutor and a defense attorney is that the prosecutor represents the victim and they represent the commonwealth — they really stand for justice in that courtroom. I really wish they had not stood by silently.”
District Attorney Jackie Musto Carroll, who has held the office since January 2008, said the prosecutors who handled juvenile cases were told the young defendants had waived their right to counsel and had no reason to suspect wrongdoing.
“Nobody knew the judge was committing any crimes at the time,” Musto Carroll said. “The judge was considered a zero-tolerance, very strict sentencing judge. There was nothing to indicate the judge was doing anything out of the ordinary.”
The Juvenile Law Center filed the petition with the state Supreme Court last April that ultimately led to the court’s ruling Thursday. The Philadelphia-based organization accused Ciavarella of rushing hundreds of young defendants through the system without properly apprising them of their rights to an attorney. Ciavarella limited the closed-door hearings to about 90 seconds each, the Juvenile Law Center said.
Here is a story from Feb. 22nd, 2009, reported by Dave Janoski, that begins:
For years, Luzerne County Judge Mark A. Ciavarella Jr. denied juvenile defendants their rights, imprisoned them over the recommendations of probation officers and took millions in kickbacks from the co-owner of two juvenile detention centers that earned nearly $30 million with his help, according to lawsuits and federal prosecutors.Ciavarella did all that in a courtroom that was closed to the public and the media, but open to prosecutors, public defenders, police and probation officials. Why didn’t anyone speak up?
Interviews and court documents portray Ciavarella’s courtroom as a place where the outcome of cases was decided well before a juvenile arrived for a hearing that could take mere minutes. Wielding tight control of the juvenile probation department and his courtroom, Ciavarella pressured court staff to recommend detention, even in cases where staffers believed detention wasn’t warranted, federal prosecutors allege.
Posted by Marcia Oddi on March 28, 2009 10:09 AM
Posted to Courts in general
Ind. Courts - "Evansville attorney found guilty of theft again"
Libby Keeling reports in the Evansville Courier & Press in a long story:
An Evansville attorney who pleaded guilty to bilking clients out of more than $58,000 to fuel a gambling addiction now has been convicted of stealing about $33,000 from a company that hired him after his license to practice law was suspended.Allan G. Loosemore Jr., 53, was found guilty of one count of forgery, a class C felony, and 14 counts of theft, a class D felony, Wednesday after a three-day trial in Vanderburgh Circuit Court. * * *
In interviews with the Courier & Press in 2002, Loosemore said he turned to gambling as a way to cope with personal and professional setbacks.
In 2003, he pleaded guilty to theft, forgery and fraud and was sentenced to eight years on reporting probation and ordered to pay full restitution of more than $58,000.
Posted by Marcia Oddi on March 28, 2009 10:03 AM
Posted to Ind. Trial Ct. Decisions
Friday, March 27, 2009
Law - "Data Mining Case Heads to the Supreme Court"
Tony Mauro reports today in The Blog of Legal Times in an entry that begins:
Two major publishers of health care data filed a petition today at the Supreme Court, raising cutting-edge questions about whether increasingly widespread data mining that is used for commercial purposes is protected by the First Amendment.Lyle Denniston of SCOTUSLaw Blog has an entry about IMS Health v. Ayotte this afternoon complete with links to the petition and the lower court rulings.The petition, titled IMS Health, Inc. and Verispan LLC v. Ayotte, is an appeal of a controversial ruling last November by the U.S. Court of Appeals for the 1st Circuit. The appeals panel ruled that the data about drug prescriptions gathered by the companies is outside the protection of the First Amendment, in part because it has "scant societal value," in the same way that obscenity is not protected speech. The ruling written by Judge Bruce Selya said the pharmaceutical data at issue in the case was to be viewed, not as speech but as a commodity like "beef jerky" that can be regulated without running afoul of the First Amendment.
The appeals court upheld a 2006 New Hampshire law that banned using information about a doctor's prescribing history for the purpose of increasing drug sales. The target of the law was the business in which publishers obtain data from pharmacies about a doctor's prescription preferences and illnesses the doctor has treated (without patients' names) and then sell the data to pharmaceutical companies.
Reading all this, I recalled yesterday's NY Times story by Stephanie Clifford headed "Online Age Quiz Is a Window for Drug Makers." It is not directly on point, but interesting, and begins:
Americans yearn to be young. So it is little wonder that RealAge, which promises to help shave years off your age, has become one of the most popular tests on the Internet.According to RealAge, more than 27 million people have taken the test, which asks 150 or so questions about lifestyle and family history to assign a “biological age,” how young or old your habits make you. Then, RealAge makes recommendations on how to get “younger,” like taking multivitamins, eating breakfast and flossing your teeth. Nine million of those people have signed up to become RealAge members.
But while RealAge promotes better living through nonmedical solutions, the site makes its money by selling better living through drugs.
Pharmaceutical companies pay RealAge to compile test results of RealAge members and send them marketing messages by e-mail. The drug companies can even use RealAge answers to find people who show symptoms of a disease — and begin sending them messages about it even before the people have received a diagnosis from their doctors.
Posted by Marcia Oddi on March 27, 2009 04:30 PM
Posted to General Law Related
Ind. Decisions - Court of Appeals issues 1 today (and 16 NFP)
For publication opinions today (1):
In Richard Moore v. Wells Fargo Construction, a 15-page opinion, Judge Najam writes:
Richard Moore appeals from the trial court's judgment in favor of Wells Fargo Construction (“Wells Fargo”), formerly known as The CIT Group/Equipment Financing, Inc. (“CIT”), on its complaint to recover a deficiency owed under a personal guaranty. Moore raises two issues for review: 1. Whether the evidence is sufficient to support the trial court's finding that Wells Fargo conducted the sale of a repossessed excavator in a commercially reasonable fashion. 2. Whether Wells Fargo provided adequate notice to Moore of the sale of the excavator. We affirm. * * *NFP civil opinions today (2):[1] We agree with Moore that Section 26-1-9.1-610 requires sales such as the instant one to be commercially reasonable. But the plain language of the Guaranty shows that Moore intended to waive any claim regarding the commercial reasonableness of a sale of the Excavator. Thus, under the Guaranty, Moore has waived that claim. * * *
[2] Specifically, Moore contends that CIT did not inform him of the physical location for the proposed sale of the Excavator through the internet auction website. But, aside from stating simply that a physical location is required when the sale is to be conducted through an internet auction, Moore does not support his argument with cogent reasoning and, therefore, he has waived it. See App. R. 46(A)(8)(a).
Nevertheless, again, the relevant statute provides that the notice shall state the “time and place of a public disposition.” Ind. Code § 26-1-9.1-613. The Second Notice informed Moore that CIT intended to sell the Excavator in a public auction over the internet. The notice listed the date and web address for the auction and the physical address of the auction company. An internet auction has no physical location and is not a situs in the traditional sense. But the web address of the auction and the physical address of the auction company adequately apprised Moore where the auction would be held, allowing him to monitor or even participate in the auction. Thus, we conclude that the Second Notice, containing the web address of the auction and the physical address of the auction company, satisfies the location requirement in Indiana Code Section 26-1-9.1- 613(1)(E). As such, Moore's argument that the Second Notice was inadequate must fail. [ILB emphasis]
Term. of Parent-Child Rel. of J.C. & A.C.; O.C. v. Indiana Dept. of Child Services (NFP)
NFP criminal opinions today (14):
In the Matter of R.P. v. State of Indiana (NFP)
Vincent Gentile v. State of Indiana (NFP)
Shedrick B. Duckett v. State of Indiana (NFP)
Carl E. Carey v. State of Indiana (NFP)
Derrick Williams v. State of Indiana (NFP)
Jonathan D. Skinner v. State of Indiana (NFP)
Craig Douglas v. State of Indiana (NFP)
Nathaniel Osborne v. State of Indiana (NFP)
Johnathan Parker v. State of Indiana (NFP)
Roscoe Clark v. State of Indiana (NFP)
Robert Woolsey v. State of Indiana (NFP)
Jamie Long v. State of Indiana (NFP)
Joseph Thompson v. State of Indiana (NFP)
Joe Edward Perigan v. State of Indiana (NFP)
Posted by Marcia Oddi on March 27, 2009 10:38 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - One Indiana 7th Circuit opinion today
In Bynum v. Lemmon (ND Ind., Judge Simon), a 17-page opinion, Judge Rovner concludes:
The district court correctly denied Bynum’s petition for a writ of habeas corpus. Bynum’s claim that his trial counsel was ineffective for failing to put him on the stand to testify at his suppression hearing required him to show both that counsel was ineffective and that counsel’s mistakes prejudiced him. Although we conclude that counsel was ineffective, Bynum was not prejudiced. The state courts ruled that it was not reasonably probable that, had Bynum testified, he would have succeeded on his motion to suppress. This conclusion was neither contrary to Supreme Court precedent nor based on an unreasonable determination of the facts in light of the evidence presented at Bynum’s trial and at the postconviction evidentiary hearing. The state court therefore reasonably concluded that Bynum was not prejudiced by his attorney’s failure to have him testify at the suppression hearing. AFFIRMED.
Posted by Marcia Oddi on March 27, 2009 10:30 AM
Posted to Ind. (7th Cir.) Decisions
Courts - "Students Sue Prosecutor in Cellphone Photos Case "
The NY Times has had stories two days in a row now on “'sexting': the increasingly popular phenomenon of nude or seminude photos sent over wireless phones."
Some quotes from yesterday's story, by Sean D. Hamill:
“They said they had a full-bodied naked picture of me, but I knew I’d never had any naked picture taken of me,” the student, Marissa Miller, 15, recalled of the Feb. 10 telephone call to her mother as the two were having lunch together at Tunkhannock Area High School. Marissa is a freshman at the school, where her mother, MaryJo, works with special education students.Today's story, by Hamill and Liz Robbins, reports:The picture that investigators from the office of District Attorney George P. Skumanick of Wyoming County had was taken two years earlier at a slumber party. It showed Marissa and a friend from the waist up. Both were wearing bras.
Mr. Skumanick said he considered the photo “provocative” enough to tell Marissa and the friend, Grace Kelly, that if they did not attend a 10-hour class dealing with pornography and sexual violence, he was considering filing a charge of sexual abuse of a minor against both girls. If convicted, they could serve time in prison and would probably have to register as sex offenders.
It was the same deal that 17 other students — 13 girls and 4 boys — accepted by the end of February. All of them either been caught with a cellphone containing pictures of nude or seminude students, or were identified in one or more such photos.
But three students, Marissa, Grace and a third girl who appeared in another photo, along with their mothers, felt the deal was unfair and illegal. On Wednesday, they filed a lawsuit in federal court in Scranton, Pa., against Mr. Skumanick. * * *
“Prosecutors should not be using a nuclear-weapon-type charge like child pornography against kids who have no criminal intent and are merely doing stupid things,” said Witold J. Walczak, a lawyer with the American Civil Liberties Union of Pennsylvania, which represents the families. * * *
In large part because sexting cases are so new, local communities across the country vary greatly in their handling, from filing child pornography charges against the teenagers involved to alerting parents and letting them deal with it.
Lee Tien, a senior staff lawyer for the Electronic Frontier Foundation, a nonprofit group in San Francisco that studies technology issues, said such cases also raise thorny legal issues around the searching of students’ cellphones, many of which are seized when they are used during class.
“If they confiscate the phone, that’s reasonable to hold it for the day and return it,” Mr. Tien said. “But there’s a serious question of whether that justifies going through the cellphone.”
The lawsuit filed Wednesday does not address those issues, or the role Tunkhannock Area High School might have played in the investigation, but Mr. Walczak said the A.C.L.U. was “assessing possible legal action against the school.”
“Those cellphones contain highly personal information protected by the Fourth Amendment,” he said.
SCRANTON, Pa. — A federal judge said at a hearing on Thursday that “serious constitutional issues” were raised in a lawsuit filed by three teenage girls and their mothers against a county district attorney who threatened to arrest the students on pornography charges after seminude photographs of them appeared on other students’ cellphones.“It seems like the children seemed to be the victims and the perpetrators here,” the judge, James M. Munley, told a lawyer for the district attorney, George P. Skumanick of Wyoming County. “How does that make sense?”
The lawyer, A. James Hailstone, said state law “doesn’t distinguish between who took the picture and who was in it.”
Judge Munley, of the Federal District Court for the Middle District of Pennsylvania, said he would not rule until early next week on a request by a lawyer for the girls and their mothers for a temporary restraining order forbidding Mr. Skumanick from filing the charges, which they contend are retaliation for the parents asserting their First and Fourteenth Amendment rights to oppose his deal.
Posted by Marcia Oddi on March 27, 2009 08:59 AM
Posted to Courts in general
Law - "Cameras to Catch Speeders and Scofflaws Are Spreading -- And Sparking Road Rage"
Supplementing this ILB entry from March 24th, today's Wall Street Journal has a lengthy article by William M. Bulkeley. The page 1 story, headed "Get the Feeling You're Being Watched? If You're Driving, You Just Might Be," begins:
The village of Schaumburg, Ill., installed a camera at Woodfield Mall last November to film cars that were running red lights, then used the footage to issue citations. Results were astonishing. The town issued $1 million in fines in just three months.Meanwhile, also today, the NWI Times has this AP story by John O'Connor, headed "Illinois legislators considering speed camera bill."But drivers caught by the unforgiving enforcement -- which mainly snared those who didn't come to a full stop before turning right on red -- exploded in anger. Many vowed to stop shopping at the mall unless the camera was turned off. The village stopped monitoring right turns at the intersection in January.
Once a rarity, traffic cameras are filming away across the country. And they're not just focusing their sights on red-light runners. The latest technology includes cameras that keep tabs on highways to catch speeders in the act and infrared license-plate readers that nab ticket and tax scofflaws.
Drivers -- many accusing law enforcement of using spy tactics to trap unsuspecting citizens -- are fighting back with everything from pick axes to camera-blocking Santa Clauses. They're moving beyond radar detectors and CB radios to wage their own tech war against detection, using sprays that promise to blur license numbers and Web sites that plot the cameras' locations and offer tips to beat them.
Cities and states say the devices can improve safety. They also have the added bonus of bringing in revenue in tight times. But critics point to research showing cameras can actually lead to more rear-end accidents because drivers often slam their brakes when they see signs warning them of cameras in the area. Others are angry that the cameras are operated by for-profit companies that typically make around $5,000 per camera each month.
Posted by Marcia Oddi on March 27, 2009 08:51 AM
Posted to General Law Related
Ind. Gov't. - "IDEM calendar complaint rejected"
Gitte Laasby reports today in the Gary Post-Tribune:
MERRILLVILLE -- Indiana law does not allow the public to access officials' calendars and meeting schedules.The PAC's informal opinion isn't yet available online, but when it is, it should be posted here.On that basis, Indiana Public Access Counselor Heather Neal rejected a complaint by the Post-Tribune that the Indiana Department of Environmental Management refused to release copies of electronic calendars. The calendars show when IDEM officials met with BP officials regarding the company's air permit.
An Indiana Court of Appeals ruling from 1998 and two previous public access counselor opinions stated that calendars are not subject to disclosure because they are the equivalent of a diary or journal.
The Post-Tribune had argued that the calendars in question are more like a message board than a diary or journal because they are electronic and because dozens of people access them and make changes to them. The public access counselor disagreed.
"I am not persuaded that the features of (the program) Microsoft Outlook make the employee calendars different" than the calendars in the other cases, Neal wrote in an unofficial opinion letter to the Post-Tribune on Thursday.
"It is my understanding that each of those employees would need to be authorized to view the calendar (i.e. issued a user identification and password by the state). It is also possible for a user to mark information maintained in the Outlook calendar as private. In other words, the user is able to share certain information and maintain other information as private." * * *
Hoosier State Press Association General Counsel Steve Key said the opinion makes it more difficult for the public to hold a taxpayer-funded agency accountable for what it does.
"Obviously it makes it more difficult for the public to be able to determine answers to questions such as, who's meeting with whom, how much time has been spent on this particular subject matter or another," Key said. "It has expanded the journal or diary exception beyond what I believe was the original intent. (But) the access counselor is stuck with the case law that's there. The public access counselor isn't charged or directed to give their opinion as far as what the law should be, but what the law is."
Posted by Marcia Oddi on March 27, 2009 08:44 AM
Posted to Indiana Government
Thursday, March 26, 2009
Courts - Still more on: "The Indianapolis Museum of Art wanted its Caravaggio back"
Updating this ILB entry from earlier today, where I wondered whether the IMA's Caravaggio, the Sleeping Cupid, was still tied up in the New York litigation, I'm happy to report the good news I received late this afternoon:
Hi Marcia, I wanted to let you know that we did, indeed, receive the painting back. In fact, it came back to the IMA shortly after the Oct. 2007 hearing, and it has been on view in our European galleries. Please let me know if you need any additional information.Katie Zarich
Acting Director of Public Affairs
Indianapolis Museum of Art
Posted by Marcia Oddi on March 26, 2009 06:16 PM
Posted to Indiana Courts
Courts - Yet more on: "Pa. judges accused of jailing kids for cash" [Updated]
The ILB's most recent entry on this scandal is here, from Feb. 14th.
This afternoon the AP is reporting:
ALLENTOWN, Pa. (AP) -- Pennsylvania's highest court on Thursday overturned hundreds of juvenile convictions issued by a corrupt judge accused of taking millions of dollars in kickbacks to send kids to privately owned detention centers.Howard Bashman's How Appealing has collected links to some other reports, plus the order of the Supreme Court of Pennsylvania.The state Supreme Court ruled that former Luzerne County President Judge Mark Ciavarella violated the constitutional rights of youth offenders who appeared in his courtroom without lawyers between 2003 and 2008.
''Today's order is not intended to be a quick fix,'' Chief Justice Ronald Castille said in a statement. ''It's going to take some time, but the Supreme Court is committed to righting whatever wrong was perpetrated on Luzerne's juveniles and their families.''
In one of the most egregious cases of judicial corruption ever seen, federal prosecutors charged Ciavarella and another Luzerne County judge, Michael Conahan, with taking $2.6 million in payoffs to put juvenile offenders in private lockups.
[Updated at 6:30 PM] John Schwartz now has a NY Times story on the overturning of the convictions. It begins:
The Supreme Court of Pennsylvania wiped the slate clean on Thursday for hundreds of young people who had been sentenced by a corrupt judge.From later in the story:The young people had been sent to privately run detention centers between 2003 and 2008 as part of a judicial kickback scheme that shocked Pennsylvania and the nation. The judge in the cases, Mark A. Ciavarella Jr., of Luzerne County, is one of two judges who pleaded guilty last month to wire fraud and conspiracy for taking more than $2.6 million in kickbacks.
“This order represents another positive step in the Court’s resolve to restore public trust and confidence in the juvenile justice system of Luzerne County,” said Ronald D. Castille, the chief judge of Pennsylvania in a statement.
The exact number of records to be expunged was not stated in the court’s order; a special master is investigating the individual cases.
The court on Thursday authorized the master to vacate judgments and consent decrees and to expunge the records where necessary. The special master had submitted an 11-page report that found “there was routine deprivation of children’s constitutional rights to appear before an impartial tribunal and to have an opportunity to be heard.”
Posted by Marcia Oddi on March 26, 2009 05:10 PM
Posted to Indiana Courts
Ind. Law - "Indy law firm Bose McKinney & Evans cutting 25"
The Indianapolis Star is reporting, via a statement from the firm’s managing partner:
Bose McKinney & Evans LLP announced today that the firm is cutting 10 attorney, 2 paralegal and 13 staff positions.This supplements an ILB entry from earlier today.These reductions affect 7 percent of the attorneys and 11 percent of the staff of the firm, the firm’s managing partner, Kendall Crook, said in a statement.
“We regret the need to cut these attorney and staff positions. However, the recession continues to affect our clients and certain segments of our practice, and these steps were necessary to realign the firm to meet current economic realities," Crook said.
Posted by Marcia Oddi on March 26, 2009 04:30 PM
Posted to Indiana Law
Law - NY Times editorial on Dawn Johnsen
"A Legal Adviser Worthy of the Job " is the headline today to this editorial in the NY Times. Some quotes:
In the Bush administration, the Office of Legal Counsel gave a green light to many objectionable policies, from a lawless expansion of executive power to the use of torture. President Obama has nominated Dawn Johnsen to lead the office, but her nomination is being attacked by Republican senators who still prefer the Bush approach. Ms. Johnsen is superbly qualified and has fought for just the sort of change the office needs. The Senate should confirm her without further delay. * * *Here are earlier ILB entries on Ms. Johnsen.Republican senators’ harsh criticism of the nomination is groundless. They have questioned Ms. Johnsen’s commitment to fighting terrorism, but their main complaint seems to be her opposition to torture and to extreme views on presidential power. Her critics are outraged that early in her career, Ms. Johnsen worked for an abortion-rights advocacy group, but her views on abortion are hardly unusual.
Senator John Cornyn, a Republican of Texas, has made the bizarre accusation that despite her impressive legal record, Ms. Johnsen has not demonstrated the “requisite seriousness” for the job. It is an odd charge coming from someone who was a staunch defender of former Attorney General Alberto Gonzales, to whom that description actually applied.
Ms. Johnsen made it through the Judiciary Committee on a party-line vote, and there is talk that Republicans may try to filibuster her nomination. That would be an outrage. There is no corner of the executive branch in greater need of a new direction than the Office of Legal Counsel. The impressive Ms. Johnsen is an excellent choice to provide it.
Posted by Marcia Oddi on March 26, 2009 02:14 PM
Posted to General Law Related
Ind. Courts - "New judge appointed for Wayne County"
Bill Engle reports in the Richmond Palladium-Item in a story that begins:
Hagerstown native Chuck Todd will take his seat on the bench later this spring as the next Wayne Superior Court 1 judge in Wayne County.
AdvertisementIndiana Gov. Mitch Daniels today announced his appointment of Todd to replace P. Thomas Snow, who left in March to become chairman of the Indiana Alcohol & Tobacco Commission.
"Chuck Todd is a very talented and experienced jurist and a great community leader," Daniels said in making the announcement. "I'm confident he will make an excellent judge and will serve the citizens of Wayne County with distinction."
Todd was selected from a final pool of five candidates that included Wayne Superior Court 3 Judge Darrin Dolehanty and local attorneys Nancy Gardner Wissel, Steve Rabe and Thomas Seal.
Todd, who has been in private practice in Cambridge City since 1998, said he would now work with the governor's office to close out his private practice and transition onto the Superior 1 bench.
He is expected to be seated sometime after June 1.
Posted by Marcia Oddi on March 26, 2009 01:22 PM
Posted to Indiana Courts
Ind. Law - "Consumer Advocate Abby Kuzma Chosen by Attorney General to Lead Consumer Protection Efforts Statewide"
A release from Attorney General Zoeller's office today reads in part:
INDIANAPOLIS — Today one of central Indiana’s leading consumer advocates was named to an important position within the Office of the Indiana Attorney General, protecting consumers’ rights.Indiana Attorney General Greg Zoeller announced he has appointed Abigail Kuzma to lead his office’s Consumer Protection Division or CPD. Kuzma is the longtime executive director of the nonprofit Neighborhood Christian Legal Clinic in Indianapolis, and she is leaving that organization in order to join the Office of the Indiana Attorney General as director of consumer protection.
“Abby is a proven consumer advocate,” Zoeller said. “She joins the office with an arsenal of experience and a solid reputation of protecting some of our state’s most vulnerable citizens. Abby will be working with a wide variety of organizations and individuals to enhance our consumer education and advocacy efforts in every corner of the state.” * * *
Kuzma’s experience also includes five years working in Washington, D.C., first as a legislative assistant to Senator Richard Lugar, R-Ind., followed by positions with the U.S. Senate Committee of the Judiciary, including minority chief counsel and staff director for the Subcommittee on Patents, Copyrights and Trademarks.
In 1994 she returned to Indiana and co-founded the Neighborhood Christian Legal Clinic, a faith-based, non-profit corporation that provides legal representation and preventive law education to low-income families in central Indiana. NCLC directly serves more than 8,000 clients per year and was recognized with the 2004 Indiana Achievement Award for Impact in the Community for its immigrant-outreach program. NCLC also has been honored with the 2006 Indianapolis Bar Foundation Law-Related Education Award; the 2008 Latino Coalition Against Domestic and Sexual Violence Advocate Award; and the 2008 Indiana Lawyer Nonprofit Diversity in Practice Award.
Kuzma’s prior experience also includes a position as a U.S. District Court magistrate’s law clerk for the Southern District of Indiana and legislative counsel for the Indiana Legislative Services Agency. Kuzma earned a Bachelor of Arts degree with honors in philosophy from the University of Wisconsin and is a graduate of the Indiana University School of Law.
Posted by Marcia Oddi on March 26, 2009 01:09 PM
Posted to Indiana Law
Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)
For publication opinions today (1):
In Indiana Family and Social Services Administration v. Robert T. Pickett, a 22-page opinion, Judge Crone writes:
The Indiana Family and Social Services Administration (“IFSSA”) appeals a trial court order that reversed an administrative decision sustaining the denial of Robert Pickett’s Medicaid disability application. We affirm.NFP civil opinions today (1):This case presents two intertwined issues concerning the decision of the administrative law judge (“ALJ”). We will address the following restated issues together: I. Whether the ALJ’s findings of fact and conclusions were supported by substantial evidence and, if so, whether the findings and conclusions support the ultimate conclusion that Pickett is not disabled; and II. Whether the ALJ erred by failing to address relevant medical records regarding Pickett. * * *
In sum, the only evidence that actually addresses Pickett’s capacity for sustained activity on a regular basis, his intellectual or sensory functions as they relate to his vocational capacity, and/or his ability to perform necessary reasoning and direction- following, paints the same picture of substantial functional limitation. See 405 IAC 2-2- 3(a)(2)(A). Moreover, these substantial functional limitations, combined with Pickett’s limited education and vocationally irrelevant sporadic employment history clearly show that Pickett’s multiple mental impairments substantially impair his ability to perform labor or services or to engage in a useful occupation. 405 IAC 2-2-3(a)(2). That showing, plus the undisputed, continuous, verifiable nature of Pickett’s bi-polar disorder, borderline personality disorder, polysubstance abuse, and alcoholism, plus the fact that Pickett receives SSI, leads to the inescapable conclusion that he is eligible for Medicaid disability. Ind. Code § 12-14-15-1. Accordingly, the ALJ’s decision to the contrary was unsupported by substantial evidence. The administrative decision did not demonstrate a rational connection between the facts found and the applicable law. As set out supra, the findings neither supported nor contradicted the conclusion that Pickett’s mental illnesses and substance abuse problems do not substantially impair his ability to perform labor or services or engage in a useful occupation. The only evidence that touched on this central question refuted the conclusion reached by the ALJ. Therefore, we affirm the trial court’s reinstatement of Pickett’s Medicaid disability benefits.
In the Matter of T.L. and J.L., T.P. v. Marion Co. Dept. of Child Svcs. (NFP) - "Appellant-respondent T.P. (“Mother”) appeals the trial court’s order declaring her minor children, T.L. and J.L., to be Children in Need of Services (CHINS). Mother argues that there is insufficient evidence supporting the trial court’s CHINS determination. Finding no error, we affirm. "
NFP criminal opinions today (4):
Russell Allender v. State of Indiana (NFP)
James R. Lancaster v. State of Indiana (NFP)
Sandy Dawson v. State of Indiana (NFP)
Servan Allen v. State of Indiana (NFP)
Posted by Marcia Oddi on March 26, 2009 12:50 PM
Posted to Ind. App.Ct. Decisions
Ind. Law - Terre Haute Board of Public Works nixes contract with Indy law firm; Bose layoffs
An interesting story by Arthur E. Foulkes that appeared earlier this month in the Terre Haute Tribune Star. The story begins:
The Terre Haute Board of Public Works and Safety on Monday rejected a proposed contract with an Indianapolis law firm that has ties to top city officials.The Indianapolis Star on March 14th published a release from Bose that began:The board voted 2-2 when asked to approve a contract that would have hired the law firm of Bose, McKinney and Evans to help the city in upcoming contract negotiations with the firefighters union.
The Bose law firm is representing Mayor Duke Bennett in his legal fight with former Mayor Kevin Burke. It also employs the brother-in-law of City Attorney Chou-il Lee.
The board’s tie vote means a motion to approve the contract failed.
Of the six bids received by the city, the Bose Law Firm’s bid was “the cheapest by far,” Lee said after the meeting. Bose offered to help with the contract negotiations for $235 per hour. The second-lowest bid, from the Indianapolis law firm of Baker and Daniels, was for $295 per hour, Lee said.
“To us, we trust you,” board member Jeff Perry told Lee, who recommended the Bose contract for board approval. “But to someone removed from the board … it could be the appearance or the suggestion of impropriety there, and I think that needs to be addressed.”
“That’s why I disclosed everything,” Lee said after the meeting when asked about the appearance of a conflict of interest. His brother-in-law works as a patent attorney for the Bose law firm and would not have handled the city’s contract negotiations, Lee said. “There is no conflict of interest,” he said.
No Terre Haute law firms wanted to take part in the firefighter negotiations, the city attorney said when asked why only Indianapolis-based firms submitted bids. The last time a law firm helped the city with firefighter union contract negotiations, the bill came to $27,000, he said.
Negotiations between the International Association of Firefighters Local 758 and the City of Terre Haute had been scheduled to begin Friday, Lee said. It was unclear Monday afternoon whether the board’s vote will change that, he added.
More than 30 attorneys with the firm Bose McKinney & Evans have been named Indiana Super Lawyers and 15 named Indiana Rising Stars by Law & Politics magazine.The ILB is hearing today that Bose has announced significant attorney layoffs. A number of large Chicago law firms have been announcing attorney layoffs over the past months, but this is the first the ILB has heard re Indianapolis attorneys.
The ILB would be pleased to post the firm's official announcement.
For a broader view, scroll through the blog Above the Law's unfortunately countless entries headed "Nationwide Layoff Watch."
Posted by Marcia Oddi on March 26, 2009 12:09 PM
Posted to Indiana Law
Ind. Decisions - 7th Circuit decides one Indiana case, and one FOIA case, today
In Gross v. Knight (SD Ind., Judge Young), an 11-page opinion, Judge Kanne writes:
On August 26, 1998, Jeremy Gross shot and killed Christopher Beers while robbing a conve- nience store in Indianapolis. Gross was convicted of murder and sentenced to life in prison without parole, in accordance with a jury’s recommendation. Gross claims that he received ineffective assistance of counsel because his attorney never advised him of his right to testify at the sentencing phase of his trial. The Indiana courts denied Gross post-conviction relief from his sentence, holding that he had suffered no prejudice from his counsel’s conduct. Gross filed a petition for a writ of habeas corpus in the district court, which denied his claim because the state courts reasonably applied federal law. We now affirm. * * *In The Cornucopia Institute v. U.S. Dept. Agriculture (WD Wis.), an 8-page opinion, Judge Kanne writes:The decision of the Indiana Court of Appeals that Gross did not suffer prejudice as required by Strickland was not unreasonable in light of federal law or the facts in the record. Gross has not demonstrated that he would have testified at trial, nor has he convinced us that his testi- mony could have altered his sentence. The judgment of the district court is AFFIRMED.
Between August 2005 and Febru- ary 2006, the Cornucopia Institute submitted to the United States Department of Agriculture three separate under the Freedom of Information Act, 5 U.S.C. § 552. FOIA requires that a public agency respond to such requests within twenty days, id. § 552(a)(6)(A), but an agency may extend the period by ten days upon written notice to the party making the request, id. § 552(a)(6)(B). In response to each of these requests, the USDA informed Cornucopia that it was utilizing the permissible ten-day extension, but it then failed to respond within the required time period.On April 6, 2006, Cornucopia filed suit in the Western District of Wisconsin, seeking injunctive relief, a writ of mandamus, and attorneys’ fees and costs. On June 1, 2006, while the suit was pending, the USDA produced numerous documents in response to Cornucopia’s requests. The district court dismissed the case, holding that the USDA’s production of the requested documents had rendered Cornucopia’s claim moot. It also denied Cornucopia’s request for attorneys’ fees and costs, finding that it had not “substantially prevailed” under 5 U.S.C. § 552(a)(4)(E), as defined by Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001). requests for production of various public documents. * * *
In conclusion, we hold that Cornucopia’s claims under FOIA are moot and the district court did not err in dismissing the case. Cornucopia requested attorneys’ fees in its prayer for relief, and the district court was free to deny that request after ruling that Cornucopia was not a prevailing party. The judgment of the district court is AFFIRMED.
Posted by Marcia Oddi on March 26, 2009 11:05 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Courts - Op-ed piece on merit retention by State Bar President Bill Jonas
Indiana State Bar Association President Bill Jonas has written a long and thoughtful op-ed piece on judicial retention. You may access the article in its entirety here. Some quotes:
Now is the time for Hoosiers to speak out in favor of a uniform, non-partisan judicial selection method to insure judicial independence for all of Indiana. If we succeed in this endeavor, we will have taken an important step toward the “more perfect union” that our forefathers envisioned. * * *Some argue that Indiana’s system of electing trial judges is working well. Consider, however, two events from our state during the first week of March. First is the settlement of a long-running multi-party dispute between the mayor of Muncie and her political allies, the Delaware County Prosecutor and his political allies, and Delaware County government. In a March 6 story printed by the Muncie Star-Press, Muncie Mayor Sharon McShurley stated “It was clear that justice was for sale in Delaware County.”
The same day, the Indiana Supreme Court resolved disciplinary charges against a former LaPorte County Senior Judge who resigned from the bench and from the practice of law. Chief Justice Shepard wrote:
The charges stem from the judge’s conduct in two separate cases. In the first, [it was alleged] that [the judge], when he was the elected judge, suspended a significant portion of a man’s prison term … in exchange for the man’s father’s $100,000 contribution to two court programs. [T]he second allegation charges that [the judge] … instituted contempt proceedings against the Sheriff of LaPorte County for having lawfully turned over [the judge’s] daughter-in-law’s nephew to Michigan authorities, then continued to preside over the nephew’s Indiana case."* * * For the last 75 years no state has adopted anything other than a merit-based method of judicial selection. Over this time period, professional and academic thought has united in the view that best governmental practices dictate a judiciary selected, insofar as possible, by merit selection. This view has been endorsed by the Lake County Bar Association, St. Joseph County Bar Association, Indiana State Bar Association, the Indiana Judicial Conference, the National Center for State Courts and the American Bar Association-- and by the League of Women Voters and St. Joseph County Chamber of Commerce. It has the editorial endorsement of the South Bend Tribune and The Indiana Lawyer as well.
The Indiana State Bar Association has repeatedly endorsed merit-retention for judges, most recently in the summer of 2008 when its board voted to support an effort to create a uniform, statewide plan for merit-retention of trial judges. Merit-retention, not partisan political election, is the preferred method of judicial selection for those who want trial judges free to make rulings on the facts and the law, and not out of fear or in search of favor. Adopting merit-retention statewide will bring better government; it is a move which will further our pursuit of that “more perfect union” our forefathers began.
Posted by Marcia Oddi on March 26, 2009 10:32 AM
Posted to Indiana Courts
Courts - More on: "The Indianapolis Museum of Art wanted its Caravaggio back"
Some of you may remember this ILB entry from October 20, 2007.
Today the NY Times has this report by James Barron headed "Manhattan Art Dealer Is Indicted ." It begins:
A noted Upper East Side art dealer who had been accused of stealing from investors and customers who consigned artwork to him has been indicted by a grand jury, the Manhattan District Attorney said Thursday.No word in the story on the IMA's Caravaggio, the Sleeping Cupid. From this IMA entry, it is unclear whether The Cupid is still missing. The 2007 story contained this:The specific charges against the dealer, Lawrence B. Salander, were not released. He was arrested at his home in upstate Millbrook, N.Y., on Thursday morning. Prosecutors scheduled a news conference at 11:30 a.m. Mr. Salander’s business, the Salander-O’Reilly Galleries, also was indicted.
Deborah Mayer, the lawyer for the Indianapolis Museum, said the Caravaggio, “Sleeping Cupid,” had been on loan to the gallery. The museum “is the custodian of the Caravaggio, and is very anxious to get the painting back today, with your honor’s permission,” Ms. Mayer said, adding that the painting was “priceless.”Her request drew a chuckle from the judge, and loud guffaws from some of the other lawyers.
The judge expressed sympathy for the museum’s plight, but decided that it would not be prudent to return any paintings without further investigation.
Posted by Marcia Oddi on March 26, 2009 10:18 AM
Posted to Courts in general
Ind. Courts - "Lawsuit targets Lake County polluters" [Updated]
The AP's Charles Wilson has this story today in the NWI Times. Some quotes:
INDIANAPOLIS | Ron Kurth grew up in Gary and worked in the steel mills, and he raised his family in the region near the outskirts of Chicago. And he always wondered about the smoke and smog that overcast the Lake Michigan shoreline.Here is a link to the USA Today Special Report on Toxic Air and America's Schools."It's just a horrible atmosphere ... bringing a family up in this area," he said.
Kurth, who has a 16-year-old daughter who attends high school in Crown Point, decided someone ought to do something about the pollution, and Wednesday, he did.
He filed a lawsuit against 11 of Lake County's industries, including U.S. Steel and ArcelorMittal, claiming the air pollution they emit from their smokestacks endangers the long-term health of the region's children. The lawsuit seeks class action status on behalf of thousands of parents and their children in the northwest Indiana county's schools.
The complaint cites a study that appeared in USA Today earlier this year that reported children in the heavily industrialized county are exposed to higher levels of airborne toxins than elsewhere in the United States, based on EPA data on air quality outside 127,800 schools nationwide.
Four schools in East Chicago -- Abraham Lincoln Elementary School, Benjamin Franklin Elementary School, East Chicago Lighthouse, and Eugene Field Elementary School -- ranked in the study's first percentile, among the most polluted air. * * *
The suit seeks unspecified damages and asks the court to order a medical monitoring program to help protect children's health at the defendants' expense.
Attorney Beth A. Fegan said the 11 defendants were selected based on the study by USA Today and three universities and on Environmental Protection Agency reports.
[Updated] Today's Gary Post-Tribune has this story by Gitte Laasby that begins:
Lake County industries pollute the air so much that schoolchildren in East Chicago face lifelong health issues, including increased risk of cancer, lung damage and mental disabilities.So says a Seattle-based law firm. The company filed a class-action lawsuit Wednesday against 11 of Lake County's biggest polluters. A Crown Point dad, Ron Kurth, filed the suit in Lake County Superior Court on behalf of parents whose children have attended Lake County schools.
Posted by Marcia Oddi on March 26, 2009 09:49 AM
Posted to Environment | Indiana Courts
Ind. Decisions - "Appeals court slashes molesting sentence: Projected prison time drops from eight to 1½ years"
So reads the headline to this story by Jeff Parrott in the South Bend Tribune. Some quotes:
At the sentencing hearing, Frese said he gave Baker the maximum prison term "because there’s a serious concern I have for your danger to young children."The opinion, Ronald Baker, v. State of Indiana (NFP), was issued Tuesday.But the appeals court did not believe Baker "is one of the worst offenders deserving of the maximum sentence." He had no criminal history, had been honorably discharged from the Marines, and suffers from chronic back pain, depression and anxiety after contracting "flesh eating virus syndrome," the court wrote.
In a 2-1 vote, the appeals court ordered Frese to reduce Baker’s sentence to five years for each count, and to run the sentences concurrently, or at the same time, with two years suspended to be served on probation.
That means Baker will now receive three years in prison, or a year and a half, after accounting for day-for-day good-time credit. He could be released in early 2010. * * *
The three-judge appeals panel consisted of Elaine B. Brown, Margret J. Robb and Terry A. Crone.
Crone, a former St. Joseph Circuit Court judge, dissented from the opinion. Crone wrote that he agreed Baker is not the worst type of offender, but said he still believed the nature of the offenses and Baker’s character support the imposition of consecutive sentences and more prison time than what the appeals court has ordered.
Posted by Marcia Oddi on March 26, 2009 09:39 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - More on: "Judge Mary Harper is researching what information jurors are required to provide to attorneys"
Updating yesterday's ILB entry, the ILB received this note last evening from an Indiana deputy prosecutor:
Ms. Oddi, In response to your post today on privacy issues in jury questionnaires, I once assisted in the prosecution of a man who had previously been acquitted of murder. This person was also a drug dealer, and in the course of serving a search warrant at his residence a few years later, what did the police discover but the jury questionnaires from the murder trial!Needless to say I advised the Court of those facts and ensured all the questionnaires were collected at his drug trial.
I now do the same at all juries in which I take part. I have had some occasional balking from defense counsel and even some judges, but have never had a problem once I advise the Court of my previous experience. No Judge wants to deal with the possible risks of not collecting those questionnaires.
Enjoy your blog and read it every day.
Posted by Marcia Oddi on March 26, 2009 08:39 AM
Posted to Indiana Courts
Wednesday, March 25, 2009
Ind. Courts - Judge Hamilton hearing set for April 1st
The Blog of Legal Times reports this afternoon in an entry that begins:
The next possible battle in the judicial confirmation wars is set for April 1.See the March 22nd ILB entry, which also references the BLT on Judge Hamilton, and looks at his responses to the questionnaires.That’s the day the Senate Judiciary Committee is scheduled to hold the first confirmation hearing of the Obama administration for a nominee for the federal bench. The committee announced the hearing date today, though Republicans are asking for a delay.
Posted by Marcia Oddi on March 25, 2009 05:46 PM
Posted to Indiana Courts
Ind. Decisions - Supreme Court issues another today; and a note
In Estate of Jerome Mintz v. Connecticut General Life Ins. Co. and Wayne E. Gruber, a 12-page, 5-0 opinion, Justice Rucker writes:
The Estate of Mintz appeals the trial court‟s grant of summary judgment in favor of Connecticut General Life Insurance Company and Agent Wayne Gruber. We affirm in part and reverse in part the judgment of the trial court.[NOTE] The grandparents' rights opinion, summarized in this ILB entry from earlier today, has been removed without explanation from the Court website.
[MORE] Late this afternoon a note from the Court: "The Indiana Supreme Court handed down an amended opinion to correct an Administrative Rule 9 oversight."
The ILB has corrected the posted summary to conform.
The amended opinion now contains this footnote:
This is an amended opinion with a revised caption that now properly identifies the parties and affected persons in accordance with Indiana Administrative Rule 9(G)(4)(d), which became effective January 1, 2009. This amended opinion replaces a prior version issued earlier today, which inadvertently but incorrectly included the full names of the parents and grandmother of the minor child, contrary to the Rule. These persons had previously been publicly identified in the memorandum decision of the Court of Appeals issued prior to the effective date of the Rule.
Posted by Marcia Oddi on March 25, 2009 12:39 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Court of Appeals issues 7 today (and 10 NFP)
For publication opinions today (7):
Deutsche Bank National Trust Co. v. Mark Dill Plumbing Co., Mark E. Neff and Invironmental Technologies - "This appears to be precisely what happened here. Deutsche Bank foreclosed its mortgage without making Appellees parties. Deutsche Bank acknowledges Appellees' liens were properly recorded; its agent that conducted the title search presumably missed them. Accordingly, Deutsche Bank should have known about Appellees' liens. The trial court ordered the property sold to satisfy the liens belonging to Appellees. In light of Watson, the trial court reached the proper result.
"Because there are no genuine issues of material fact and the law is in Appellees' favor, we affirm the summary judgment for Dill Plumbing, Neff, and Invironmental."
In Fort Wayne Patrolmen's Benevolent Assoc., Inc. and Michaeline Jones v. The City of Fort Wayne, a 16-page, 2-1 opinion, Judge Bradford concludes:
In sum, concluding that Officer Jones was not “performing a duty” within the meaning of Indiana Code section 36-8-4-5 at the time of her accident and that the language of the CBA is clear and unambiguous and creates no contractual obligations on behalf of the City apart from those created by section 36-8-4-5, we affirm the trial court?s award of summary judgment in favor of the City. The judgment of the trial court is affirmed.In Kenwal Steel Corp. v. John M. Seyring, an 11-page opinion in an interlocutory appeal, Judge Barnes writes:MATHIAS, J. concurs.
BAILEY, J. dissenting with opinion. [which begins, on p.14 of 16] I respectfully dissent from the majority?s decision to affirm the grant of summary judgment in this matter. I do so because I believe that the majority has too narrowly construed the “performance of duties” language of Indiana Code Section 36-8-4-5, which provides for the care of police officers injured or contracting illness as a result of the performance of duties.
Kenwal Steel Corp. (“Kenwal”) appeals the denial of its motion to dismiss John Seyring's negligence action for lack of subject matter jurisdiction. * * *In Michael Theotis Strong v. State of Indiana, a 5-page opinion, Judge May concludes:Conclusion. For purposes of Indiana Code Section 22-3-6-1(a), Elwood and Kenwal are joint employers of Seyring, and Seyring is limited to the exclusive remedy provision of the Act. Further, Kenwal did not intentionally waive its right to enforce the exclusive remedy provision of the Act. We reverse.
Greer received several consecutive sentences for murder and attempted murder. Greer argued the trial court had imposed consecutive sentences in violation of Ind. Code § 35-50-1-2, which places some limitations on consecutive sentences for a single episode of criminal conduct. In a footnote, our Indiana Supreme Court rejected the State’s argument that attempted murder could be treated the same as murder for purposes of Ind. Code § 35-50-1-2. Greer, 684 N.E.2d at 1142 n.7. The Court declined to apply Haggenjos and instead applied Camden. Id.David Booker v. State of Indiana - "Although we do not condone the prosecutor's conduct, it was not a discovery violation. Nor is there a reasonable probability that the result would have been different if the prosecutor had promptly disclosed the statement. Booker admitted he fled from a routine traffic stop. Officer Mikulich found thirty baggies of cocaine in Booker's pocket. Two other officers testified they saw Officer Mikulich remove the cocaine from Booker's pocket. The cocaine was entered into evidence, and each of the testifying officers identified Booker in court. There was ample evidence from which the jury could find Booker guilty of dealing in cocaine; therefore, he has not demonstrated he is entitled to a new trial. Affirmed. "In Greer, our Indiana Supreme Court declined to extend the rationale of Haggenjos to another statute. However, the Court did not overrule Haggenjos, and it still stands as the Court’s interpretation of Ind. Code § 35-50-2-2. As such, we must decline Strong’s invitation to apply Camden or Greer. See Dragon v. State, 774 N.E.2d 103, 107 (Ind. Ct. App. 2002) (“Supreme court precedent is binding upon us until it is changed either by that court or by legislative enactment.”), trans. denied 783 N.E.2d 687 (Ind. 2003). Therefore, the trial court correctly concluded Ind. Code § 35-50-2-2 applies to attempted robbery with a deadly weapon.
Reynold Delatorre v. State of Indiana - "Reynold Delatorre appeals his conviction of carrying a handgun without a license. Finding no violation of his Fourth or Fifth Amendment rights, we affirm. "
Broderick Bullock v. State of Indiana - "Broderick Bullock appeals his conviction of three counts of Class D felony theft for stealing televisions from Wal-Mart on three occasions. We conclude the testimony of the Wal-Mart employee was not incredibly dubious and the other alleged errors are harmless. Therefore, we affirm the convictions. * * *
"We have viewed the video and acknowledge it is brief and not of excellent quality. However, it is not so poor that we can conclude it is incredibly dubious that a person acquainted with Bullock could identify him in the video. Bullock invites us to reweigh the evidence, which we will not do."
NFP civil opinions today (0):
NFP criminal opinions today (10):
Matthew G. Russ v. State of Indiana (NFP)
Gary Hempstead v. State of Indiana (NFP)
Troy D. McCormick v. State of Indiana (NFP)
Eric Carnell v. State of Indiana (NFP)
James G. Ascherman v. State of Indiana (NFP)
Dale A. Harris v. State of Indiana (NFP)
Michael Wilson v. State of Indiana (NFP)
Eddie Tillman v. State of Indiana (NFP)
Rufino Cabrera-Peredo v. State of Indiana (NFP)
Jasper Lea Adams v. State of Indiana (NFP)
Posted by Marcia Oddi on March 25, 2009 12:12 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Supreme Court decides one today, on grandparents' rights [Corrected]
In the Matter of the Paternity of K.I., by Grandmother and Next Friend J.I. v. J.H. is a 13-page, 5-0 opinion authored by Justice Rucker, who writes:
The trial court modified the custody of a minor from the child's maternal grandmother to the child's natural father. The trial court also directed that grandmother be granted visitation consistent with the Indiana Parenting Time Guidelines. We conclude the trial court correctly modified custody but erred in directing the parties to rely on the Guidelines to determine visitation. * * *Corrected: See this entry for explanation.The central issues in this case are: (1) what standard a trial court should apply when ruling on a parent's petition to modify custody of a child who is already in the custody of a third party, and (2) what role, if any, the presumption in favor of the natural parent plays in a modification proceeding. * * *
I. * * * In essence, although in a very technical sense, a natural parent seeking to modify custody has the burden of establishing the statutory requirements for modification by showing modification is in the child's best interest, and that there has been a substantial change in one or more of the enumerated factors, as a practical matter this is no burden at all. More precisely, the burden is minimal. Once this minimal burden is met, the third party must prove by clear and convincing evidence “that the child's best interests are substantially and significantly served by placement with another person.” B.H., 770 N.E.2d at 287. If the third party carries this burden, then custody of the child remains in the third party. Otherwise, custody must be modified in favor of the child's natural parent. In this case, because J.I. failed to carry her burden, the trial court properly granted J.H.'s petition to modify custody in J.H.'s favor. On this point we affirm the judgment of the trial court.
II. In addition to modifying custody in J.H.'s favor, the trial court also ordered “that J.I. is to have visitation pursuant to the non-custodial parent's visitation provided under the Indiana Parenting Time Guidelines.” On cross-appeal J.H.argued the trial court abused its discretion in entering this order because it interferes with his parental rights and K.I.'s relationship with her parents. J.H.agrees that J.I.should have continuing contact with K.I. However, he contends that visitation should not be granted pursuant to the Guidelines. The Court of Appeals tacitly agreed and directed the court on remand to determine whether J.I. should be granted grandparent visitation under Indiana Code section 31- 17-5-1 or de facto custodian visitation under Indiana Code section 31-9-2-35.5.
We agree that J.I. is not entitled to visitation pursuant to the Indiana Parenting Time Guidelines. * * *
But we disagree with our colleagues that the de facto custodian statute provides J.I. any relief. More specifically, even assuming J.I. qualifies as a de facto custodian that status bears only on the question of custody. * * * The statute is silent on the question of visitation. In a modification proceeding, once the trial court determines that it is in the child's best interest that custody be granted to the natural parent, we must look elsewhere for guidance on whether and to what extent a third party may be granted visitation. That brings us to our next discussion.
Although grandparents do not have the legal rights or obligations of parents and do not possess a constitutional liberty interest with their grandchildren, nonetheless Indiana Code section 31-17-5-1, commonly referred to as the Grandparent Visitation Act, represents a Legislative recognition that “a child's best interest is often served by developing and maintaining contact with his or her grandparents.” Swartz v. Swartz, 720 N.E.2d 1219, 1221 (Ind. Ct. App. 1999). Thus, in drafting the Act, the Legislature balanced two competing interests: “the rights of the parents to raise their children as they see fit and the rights of grandparents to participate in the lives of their grandchildren.”
Under the Act, a grandparent may seek visitation only if (1) the child's parent is deceased; (2) the child's parents are divorced; or (3) the child was born out of wedlock, but only if the child's father has established paternity. I.C. § 31-17-5-1. And the trial court may grant visitation if it determines that “visitation rights are in the best interests of the child.” I.C. § 31- 17-5-2. When a trial court enters a decree granting or denying grandparent visitation, it is required to set forth findings of fact and conclusions of law. McCune v. Frey, 783 N.E.2d 752, 757 (Ind. Ct. App. 2003). In those findings and conclusions, the trial court must address: (1) the presumption that a fit parent acts in his or her child's best interests; (2) the special weight that must be given to a fit parent's decision to deny or limit visitation; (3) whether the grandparent has established that visitation is in the child's best interests; and (4) whether the parent has denied visitation or has simply limited visitation. In re Guardianship of J.E.M., 870 N.E.2d 517, 520 (Ind. Ct. App. 2007); In re Paternity of P.E.M., 818 N.E.2d 32, 37 (Ind. Ct. App. 2004). We also observe that although the amount of visitation is left to the sound discretion of the trial court, "[t]he Grandparent Visitation Act contemplates only 'occasional, temporary visitation' that does not substantially infringe on a parent's fundamental right „to control the upbringing, education, and religious training of their children." Hoeing v. Williams, 880 N.E.2d 1217, 1221 (Ind. Ct. App. 2008) (quoting Swartz, 720 N.E.2d at 1221).
Although this case involves the visitation rights of a grandparent, it was not litigated under the Grandparent Visitation Act. Instead the trial court granted visitation in the context of a custody modification proceeding. And it did so directing visitation pursuant to the Indiana Parenting Time Guidelines. For the reasons previously discussed this was error. We therefore reverse the trial court on this point and remand this cause with instructions to enter appropriate findings and conclusions consistent with this opinion and the Grandparent Visitation Act.
Conclusion. The judgment of the trial court is affirmed in part and reversed in part. This cause is remanded for further proceedings.
Posted by Marcia Oddi on March 25, 2009 12:00 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Two interesting non-Indiana opinions today from 7th Circuit
The first, U.S. v. Approximately 81,454 Cans OF Baby Formula, is a Judge Posner opinion, but it caught my eye because of its name.
The second, Staub v. Proctor Hospital, a 21-page opinion by Judge Evans, has this intriguing introduction:
One would guess that the chances are pretty slim that the work of a 17th century French poet would find its way into a Chicago courtroom in 2009. But that’s the situation in this case as we try to make sense out of what has been dubbed the “cat’s paw” theory. The term derives from the fable “The Monkey and the Cat” penned by Jean de La Fontaine (1621-1695). In the tale, a clever—and rather unscrupulous—monkey persuades an unsuspecting feline to snatch chestnuts from a fire. The cat burns her paw in the process while the monkey profits, gulping down the chestnuts one by one. As understood today, a cat’s paw is a “tool” or “one used by another to accomplish his purposes.” Webster’s Third New International Dictionary (1976). More on this a little later.
Posted by Marcia Oddi on March 25, 2009 11:27 AM
Posted to Ind. (7th Cir.) Decisions
Courts - "What Constitutional Rights Should Schoolchildren Have?"
Michael C. Dorf, a FindLaw columnist who is the Robert S. Stevens Professor of Law at Cornell University, has a column today on "Two Recent Cases Underscore the Ways in Which Children Are Not Simply Miniature Adults." It begins:
Two 2008 federal appeals court rulings—one that may be on its way to the U.S. Supreme Court, and another that is already there—raise thorny questions of the extent to which schoolchildren enjoy the protections afforded by the Constitution to adults.In Frazier v. Alexandre, the U.S. Court of Appeals for the Eleventh Circuit rejected a constitutional challenge to a Florida law requiring students to recite the Pledge of Allegiance unless they have previously received written permission from their parents excusing them from doing so. Yet the Supreme Court had appeared to hold in 1943, in West Virginia State Board of Educ. v. Barnette,that schoolchildren themselves have the right to decide whether to recite the Pledge, quite apart from their parents' wishes. Accordingly, there is a reasonable prospect that the Court will grant review of the Eleventh Circuit's decision if the plaintiff seeks it.
Meanwhile, in Redding v. Safford Unified School District,an en banc panel of the U.S. Court of Appeals for the Ninth Circuit allowed a lawsuit challenging the constitutionality of an Arizona middle school's strip search of "a thirteen-year-old girl accused by an unreliable student informant of possessing ibuprofen in violation of school rules" to proceed to trial. The Supreme Court will hear oral argument in Safford Unified next month.
These two cases, involving alleged violations of rights under the First and Fourth Amendments, respectively, highlight a potential source of confusion in our constitutional law of children's rights. Although it has long been accepted that children have constitutional rights, the law also acknowledges that, contrary to their sometimes creepy depiction in medieval art, children are not simply miniature adults.
Posted by Marcia Oddi on March 25, 2009 09:58 AM
Posted to Courts in general
Environment - "EPA to Scrutinize Permits for Mountaintop-Removal Mining"
The ILB has had many entries on mountaintop mining, including "Coal Industry Wins a Round on Mountaintop Mining" from Feb. 19th.
Today Juliet Eilperin of the Washington Post has this story, that begins:
The Environmental Protection Agency put hundreds of mountaintop mining operations on notice that they would be the focus of closer scrutiny yesterday, saying it needs to review their impact on local streams and wetlands before they can move forward.Here is a story from the NY Times. And James Bruggers has this story in the Louisville Courier Journal that begins:The announcement, which outraged mining interests and cheered environmentalists, challenged a Bush administration policy and blocked the effect of a federal court decision that had made it easier for mine operators to dispose of the rubble and sludge created when companies blow off the tops of mountains to get to the coal buried underneath.
Late last night, the EPA issued an unusual statement saying that the agency "is not halting, holding or placing a moratorium on any of the mining permit applications." But the statement indicated that the EPA would "take a close look" at applications that had been the focus of recent litigation.
EPA Administrator Lisa P. Jackson also sent letters to the Army Corps of Engineers objecting to proposed operations in West Virginia and Kentucky, saying the two projects pose a serious threat to "aquatic resources of national importance" and should be halted.
The Obama administration has begun to put the brakes on the damaging practices of strip mining in the Appalachian Mountains, sharply criticizing proposed permits for two operations -- one of them in Kentucky -- and promising closer scrutiny of many more.In taking the actions, U.S. Environmental Protection Agency officials expressed "serious concerns" yesterday about the need to reduce potential damage to water quality caused by mining in the mountains.
At issue are practices that blast the sides and tops off mountains to get at underground coal seams, and what's done with the waste rock left behind. Typically, mining companies construct "valley fills," which can bury the upper reaches of streams. They first must get permits to do so from the U.S. Army Corps of Engineers.
The EPA stopped short of using its authority to veto the permits, but environmental activists say the EPA action serves notice to the Corps that it will have to apply more rigorous standards.
In a statement, EPA administrator Lisa Jackson said the agency "will use the best science and follow the letter of the law in ensuring we are protecting our environment."
Posted by Marcia Oddi on March 25, 2009 09:48 AM
Posted to Environment
Ind. Decisions "Second appeal denied in crash that killed Jimmy DeBoy"
The Court of Appeals NFP opinion yesterday i n the case of Cesar De la Rosa v. State of Indiana is the subject of a story today by Sophia Voravong in the Lafayette Journal Courier. Some quotes:
De La Rosa appealed his sentence on grounds that former Tippecanoe Superior Court 1 Judge Don Johnson abused his discretion when he considered the impact suffered by Jimmy's family and De La Rosa's history of substance abuse as aggravating factors.For more, see this ILB entry from March 18, 2008.But the Indiana Court of Appeals, in a unanimous opinion issued today, disagreed.
"His actions caused the death of a 9-year-old boy riding his bicycle on the sidewalk," Judge Carr Darden wrote in the nine-page ruling.
"The character of the offender is reflected in De La Rosa's testimony when he testified that he thought it was 'OK to use marijuana' and 'drink and get behind the wheel' of a vehicle."
De La Rosa admitted to smoking marijuana and drinking beer with friends the day of the fatal crash. * * *
An Indiana bill named for Jimmy DeBoy took effect last July. It stiffened penalties for impaired drivers.
Here is the 2008 law, HEA 1052-2008 (PL 126-2008).
Posted by Marcia Oddi on March 25, 2009 08:19 AM
Posted to Ind. App.Ct. Decisions
Ind. Law - More on: Governor signs first bill of 2009 session
Updating yesterday's ILB entry on the Governor's signing of SEA 423, Eric Bradner of the Evansville Courier & Press has this story today. A quote:
The plant will convert coal into synthetic gas, and under the bill signed Tuesday, the Indiana Finance Authority would act as a go-between for the plant and utilities.Rick Callahan of the AP has this story. A quote:The Finance Authority would buy the pipeline-quality substitute natural gas and then resell it to Indiana utilities.
That's a major step forward for Indiana Gasification LLC's bid to build the plant because it will help the developer qualify for nearly $2 billion in federal loan guarantees for construction.
Daniels said locking in a contract between the Finance Authority and the plant to be located near Rockport would save ratepayers billions of dollars over the 30-year deal by ensuring they're not harmed by up-and-down natural gas market prices.
Developer William Rosenberg said Tuesday that Indiana Gasification has applied for federal loan guarantees that will cover 80 percent of the funding for the $2.2 billion plant.
"There's no way you can have this project without a guaranteed market and a loan guarantee," Rosenberg said. "It's impossible in today's market."
He said Indiana Gasification will be in discussion with both the Finance Authority and the U.S. Department of Energy in the next two or three months, and hopes to have a contract soon for the gas and know if the federal loan application will be approved.
"It will be an active spring of negotiations with the state and federal government," Rosenberg said.
Indiana Gasification then would need the approval of the Indiana Utility Regulatory Commission as well as state environmental permits.
Rosenberg hopes construction on the plant will begin by the end of 2010, with gas production beginning by 2013.
Daniels said federal agencies forecast that over the long term it will be cheaper "perhaps by a very large margin" to produce synthetic natural gas from coal rather than buying actual natural gas because of market fluctuations.But opponents of the bill contend that it could actually lead to higher bills for natural gas users.
Kerwin Olson, program director for the Citizens Action Coalition of Indiana, said that last year coal prices doubled even as natural gas prices were going down.
"Certainly the price of coal is going to affect the cost of this synthetic natural gas," he said. "As far as the ratepayer impact goes, it's unthinkable for us that the state would force ratepayers to enter into a 30-year contract with no review of the price whatsoever.
"The way we see it, that's an erosion of consumer and ratepayer protection."
Posted by Marcia Oddi on March 25, 2009 08:09 AM
Posted to Environment | Indiana Law
Ind. Courts - "Judge Mary Harper is researching what information jurors are required to provide to attorneys"
James D. Wolf Jr. reports today in the Gary Post-Tribune:
VALPARAISO -- A county judge is researching protection of jurors after a Portage man attempted to contact the jury members who found him guilty.Indiana Jury Rule 10, Juror Safety and Privacy, reads:Because of the actions of Thaddeus Rodriguez Sr., 37, an inactive member of the East Chicago Latin Kings, Judge Mary Harper is researching what information jurors are required to provide to attorneys.
"I was shocked that it had happened in the first place," Harper said in court Tuesday, referring to Rodriguez having his daughter contact one juror's family. He also gave her the address of another juror.
The incidents happened between Rodriguez's Jan. 9 conviction of burglary and March 17 sentencing to 36 years in prison.
He apparently wanted to know if jurors saw his prison ankle bracelet during the trial, in hopes of a mistrial.
Deputy Prosecutor Trista Hudson contacted jurors after newspapers published the story about the contact.
Two asked that Rodriguez be served no-contact orders to protect them.
All juror names and personal information have been sealed from the public in this case.
Harper plans to send her findings on jury information to the Jury Instruction Committee in Indianapolis.
Currently, attorneys are given the names, ages, addresses and employers of prospective Porter County jurors.
Professor David E. Vandercoy, who heads Valparaiso University's legal clinic, said attorneys often use the information to investigate potential bias.
"You probably get more information that way than you would in open court," he said, saying that if the list isn't available, extensive juror questioning should be allowed. * * *
Ivan Bodensteiner, who teaches law at VU, said the Supreme Court upheld the public's right to open trials in the case of Richmond Newspapers vs. Virginia in 1980.
"If the trial has to be open, presumably that includes the jury selection process. And if the information comes out in the jury selection process, it's out there," Bodensteiner said.
Personal information relating to a juror or prospective juror not disclosed in open court is confidential, other than for the use of the parties and counsel. The court shall maintain that confidentiality to an extent consistent with the constitutional and statutory rights of the parties.Here is the Indiana Judicial Center's "Jury Rules FAQ," including specifically Q&A re Rule 10 - well worth reading.
For more information and background, see this Nov. 26, 2008 ILB entry re making juror questionnaires public. The "note from a reader" seems right on point.
Posted by Marcia Oddi on March 25, 2009 07:41 AM
Posted to Indiana Courts
