Thursday, May 07, 2009

Courts - "White House Formalizes Supreme Court Short List"

ABC News's correspondent Jan Crawford Greenberg reports:

The White House has formalized its short list of Supreme Court contenders and asked six prospects to provide personal background information, with an intensive vetting process well underway, according to sources close to the process.

The leading contenders on the short list: federal appeals court Judges Sonia Sotomayor and Diane Wood, and Solicitor General Elena Kagan, sources close to the process say.

Oddly, the long story doesn't name the other three on the list.

Posted by Marcia Oddi on May 7, 2009 06:13 PM
Posted to Courts in general

Ind. Courts - "Grand jury indicts LaPorte judge who was shot, her husband"

Breaking news from the NWI Times:

A LaPorte Superior Court judge who was wounded by a gunshot in her home in December and her husband have been indicted by a grand jury.

Judge Jennifer Evans Koethe was charged with obstruction of justice while her husband Stephan Koethe was charged with recklessly performing an act which created a substantial risk of bodily injury to another person and knowingly providing false information in the investigation of a crime.

Evans was grazed in the head Dec. 22 by the gunshot. She wasn't seriously injured.

Her husband said at the time she was handling a gun that she did not think was loaded when it discharged. The indictment, though, says he loaded a firearm while intoxicated during an argument with another intoxicated person.

Here is a list of earlier ILB entries.

[More] Here is a link to the two indictments.

Here is a story stamped 5:50 PM from WSBT.com:

LaPORTE — A LaPorte grand jury has indicted a LaPorte County judge and her husband.

Jennifer Evans-Koethe was grazed in the head by a bullet at her home in December. She wasn't seriously hurt.

But court documents released Thursday claim she asked investigators to dispose of a a handwritten note that was evidence. She has been indicted for attempted obstruction of justice, a Class D felony.

Those documents also allege her husband, Stephan Koethe, provided false information during the investigation. He is also accused of recklessly performing an act which created a substantial risk of bodily injury to another person, and handling and loading a firearm while intoxicated and during an argument with another intoxicated person.

Stephan Koethe has been indicted for false informing, a Class A misdemeanor, and criminal recklessness, a Class B misdemeanor.

A warrant is out for their arrest.

Posted by Marcia Oddi on May 7, 2009 06:07 PM
Posted to Indiana Courts

Ind. Law - Governor signs more bills

The Governor today has signed two bills the ILB has been following:

• HEA 1468 - Animal cruelty and commercial dog breeders
  
• SEA 554 - Breast cancer screening and Medicaid eligibility - see this ILB entry from Feb. 23rd.

Posted by Marcia Oddi on May 7, 2009 04:16 PM
Posted to Indiana Law

Law - "College Athletes Finally Sue Electronic Arts/NCAA for Misappropriation of their Likenesses"

A long story by Elie Mystal today in Above the Law Here is a quote, taken from about a third of the way through the piece:

Everybody still with me? Okay, so you can see the obvious problem with college sports video games. Everybody wants real teams and real players, but the game publishers can't use the likenesses of actual college players. That would be stealing! But since it's perfectly legal for the NCAA to prevent kids from earning money for playing college sports, there's not really anybody video game publishers can pay for the rights. Except the colleges and universities themselves. Who, again, make a metric ton of money off of college sports.

So, game publishers like Electronic Arts, essentially, cheat. If you pick up the copy of a college sports game, you'll see all the players, with their accurate numbers, positions, player attributes, pretty much everything except the players' actual names. Luckily, you can change the names of players, and every year hundreds of users sit there and change all of the names of all the players to their real life counterparts. Then people like me pay for the "updated rosters" (back in the day) or simply download them for free.

And everybody is happy.

Except, of course, the college athletes. Especially the college athletes that have only a limited chance of going pro but are very popular college athletes and want to get a little more than a diploma out of it.

Okay, enough set up, let's get into what Nebraska QB #9 (Sam Keller) and others are doing about it.

The entry also includes this link to the full complaint, filed in federal court in the ND CA.

Posted by Marcia Oddi on May 7, 2009 03:32 PM
Posted to General Law Related

Ind. Decisions - One case granted transfer May 7th

The Clerk's transfer list should be available sometime Monday. Meanwhile, the ILB has received notice that transfer has been granted today by the Supreme Court in the following case:

Babes Showclub v. Patrick Lair -- 49A05-0805-CV-262. See the ILB summary of the Feb. 13th Court of Appeals opinion, involving the Fireman's Rule and the Rescue Docrtine, here.

Posted by Marcia Oddi on May 7, 2009 01:46 PM
Posted to Indiana Transfer Lists

Ind. Law - Several stories today about bills that have passed the General Assembly

"Legislature OKs clean water bill" is a long story in the Muncie Star-Press by Rick Yencer. He does not give the bill number, and I cannot locate the bill described.

Andy Grimm writes in the Gary Post-Tribune about passage of the puppy mill bill, HEA 1468.

Timberly Ferree reports in the Greene County Daily World:

Golf carts were brought to the forefront at the Bloomfield Town Council meeting Monday.

Council Member Aaron Hamm provided the details on the legislation that will allow golf carts to be driven in towns and cities -- which will be effective July 1.

The state approved legislation in April that will allow golf carts to be driven in towns/cities if there is a local ordinance allowing it, Hamm said.

Provisions within the legislation require the driver of the golf cart to have a valid driver's license and the vehicle to have insurance as well as a revolving red or amber light or slow moving vehicle sign, Hamm added.

The bill is HEA 1483.

As of these writing, all of these bills are awaiting the Govenor's action.

Posted by Marcia Oddi on May 7, 2009 01:23 PM
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Steven A. Januchowski v. Northern Indiana Commuter Transportation District, a 19-page, 2-1 opinion, Judge Vaidik writes:

While working for the Northern Indiana Commuter Transportation District ("NICTD") as a carman, plaintiff Steven Januchowski alleged that he was injured by shifting panels as a result of NICTD’s negligence. NICTD operates a passenger commuter rail service from South Bend, Indiana, to Chicago, Illinois. Januchowski brought his claim under the Federal Employers’ Liability Act (FELA), which provides a federal cause of action for railroad employees injured as a result of negligence. Januchowski brought his claim more than two years, but less than three years, after the alleged injuries. At trial, Januchowski argued that FELA’s three-year statute of limitation applied to his case. NICTD argued that Indiana’s general two-year statute of limitation for personal injury torts applied because of the Indiana Tort Claims Act (ITCA), and that, as a result, Januchowski’s claim was time-barred. Agreeing with NICTD on this point, the trial court granted summary judgment in favor of NICTD. Because we find that FELA’s three-year statute of limitation applies under statutory law and our Supreme Court’s case law, we reverse and remand. * * *

RILEY, J., concurs.
DARDEN, J., dissents with separate opinion. * * * It is undisputed that Indiana courts and federal courts have concurrent jurisdiction with respect to a claim under FELA. 45 U.S.C.A. § 56. As a result, in my opinion, when a FELA action is adjudicated in an Indiana state court, we apply "state procedural rules" and "federal substantive law." * * *

Given the concurrent subject matter jurisdiction of Indiana and federal courts, Januchowski had a choice of forums. However, the forum he chose was the state court. He chose to pursue his FELA claim under the Indiana Tort Claims Act, complying with its notice requirements and subsequently filing this action in an Indiana state court. I find that by choosing to file his action in the state court, he brought himself within the jurisdiction of Indiana’s procedural laws – including the Indiana procedural statute providing for a two-year statute of limitations for personal injury claims.

In Reynaldo A. Griffin v. State of Indiana, a 10-page, 2-1 opinion, Sr. Judge Sharpnack writes:

Griffin was arrested for possession of cocaine within 1,000 feet of school property. Griffin pled a defense pursuant to Ind. Code § 35-48-4-16 that he was “only briefly present near the school property and that no children were present.” Griffin did not testify at trial, and no defense witness testified as to the defense. Officer Walker testified that he had watched Griffin for some time before stopping him. * * *

In order to prove possession of cocaine as a Class D felony, the State must show that a person knowingly or intentionally possessed the drug. Ind. Code § 35-48-4-6(a). The offense is enhanced to a Class B felony if the person possesses cocaine in, on, or within 1000 feet of a public park. Ind. Code § 35-48-4-6(b)(2)(B). However, Ind. Code § 35-48-4-16(b) provides that it is a defense that (1) a person was briefly in, on, or within 1,000 feet of school property, and (2) no person under eighteen was in, on, or within 1,000 feet of school property. * * *

The jury, which was instructed on the defense, determined that Officer Walker's approximate five-minute observation of Griffin's walk down Campeau Street was sufficient to show that he was not “briefly” within 1,000 feet of the school. As we stated above, we will not impinge on a jury's determination unless “no reasonable fact finder could find the elements of the crime proven beyond a reasonable doubt.” There is no ironclad rule as to what constitutes a “brief” presence, and we cannot say as a matter of law that the jury's determination was unreasonable under the circumstances of this case. Accordingly, the State's evidence was sufficient to rebut Griffin's defense. Affirmed.

MATHIAS, J., concurs.
FRIEDLANDER, J., concurring in part, dissenting in part. * * * Turning now to the instant case, the salient facts are that Griffin was walking a moped past a school when he was stopped by police. Although the term “briefly”, as used in I.C. § 35-48-4-16(b)(1), clearly imparts a temporal connotation, the time span itself is not the only element in this equation. Whether a particular time interval is “brief” is also a function of surrounding circumstances, including the defendant‟s intentions to be or remain near the school zone for any period of time, however short.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Eric Emrich v. State of Indiana (NFP)

Kelly S. Shepherd v. State of Indiana (NFP)

Daemen Sampson v. State of Indiana (NFP)

Michael L. Brown v. State of Indiana (NFP)

Posted by Marcia Oddi on May 7, 2009 01:00 PM
Posted to Ind. App.Ct. Decisions

Ind. Law - More on "Daniels OKs online voter registration"

Updating yesterday's entry, the NWI Times story I quoted was wrong. The Governor has not acted on HEA 1346.

Posted by Marcia Oddi on May 7, 2009 09:48 AM
Posted to Indiana Law

Ind. Law - More on: "Police want to add DNA from more people to database"

Updating these ILB entries from Feb. 17th and this one from April 20th that begins:

Updating this long ILB entry from Feb. 17th, I just checked the four DNA-related bills listed, and none of them is still viable.

The blog ProPublica, in conjunction with Politico, has conducted a major investigation of the national DNA backlog. This very long story by Ben Protess, dated May 5, is headed "The DNA Debacle: How the Federal Government Botched the DNA Backlog Crisis." Some quotes:

After her attack [in 1994, Kellie] Greene joined other rape victims in a crusade to expose the backlog of untested DNA evidence sitting in freezers and on shelves in police departments and crime labs nationwide. She spoke out about her ordeal in hopes of sparing other women similar pain.

In 2003, her efforts appeared to pay off. Greene stood with Attorney General John Ashcroft at the White House when he announced that the U.S. Justice Department planned to spend a billion dollars to eliminate the backlog. The aim of the mission: to help labs swiftly identify murderers, rapists and other dangerous criminals so they couldn't strike again.

But at the same time, the Justice Department, along with Congress and state legislatures, adopted a conflicting agenda: to collect more DNA samples from wider swaths of the population.

The result: Today, 15 years after Greene began her campaign, the backlog continues to soar. At least 350,000 samples from murder and rape cases -- many of them involving sexually abused children -- remain untested, according to the federal government's best estimates. In 2005, labs across the country saw their DNA backlogs nearly double.

Part of the uptick comes from new technologies that allow tiny bits of DNA found at crime scenes to be scooped up and tested. But much of the surge [1] can be traced to new federal and state laws [2] requiring law enforcement to collect DNA samples from people convicted of -- or simply arrested for -- nonviolent crimes, including shoplifting. Crime lab directors warn that analyzing these samples allows them less time to test DNA from crime scenes and serious criminals, leaving offenders free to prey on new victims.

The expansion of DNA collection laws has been promoted by a lobbying firm with close ties to both the Justice Department and to companies that profit directly from increased DNA testing, a ProPublica investigation has found.

The firm, Gordon Thomas Honeywell Governmental Affairs, lobbies the Justice Department and lawmakers on behalf of the world's leading producer of DNA testing equipment. Despite that relationship, the Justice Department awarded Gordon Thomas Honeywell a no-bid grant in 2002 to do a key study on backlogs that has helped shape the government's DNA policies -- policies that have benefitted the firm's private clients. * * *

As federal DNA laws ramped up, states expanded their collection as well.

Fifteen states now collect DNA upon arrest, compared with only two in 2002. More than 30 require samples from some juveniles and in 34 states, some people convicted of misdemeanors, including shoplifting, must submit to testing. Gordon Thomas Honeywell has lobbied lawmakers on behalf of its DNA clients in at least five of those states, including Washington, where the firm is based.

Posted by Marcia Oddi on May 7, 2009 08:55 AM
Posted to Indiana Law

Courts - Blogging about cases pending before the Supreme Court

From Howard Bashman's How Appealing this morning:

In the April 2009 issue of the Stanford Law Review: Rachel C. Lee has an interesting note titled "Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era."

The ILB has taken a look at the SLR note. Here is the summary:

Lawyers have been arguing their cases before the Supreme Court for over two centuries, while the phenomenon of legal blogs is perhaps a decade old. Yet legal blogs cannot be dismissed as merely a sideshow novelty—they are already capable of having a substantial impact on Supreme Court litigation. Events surrounding the recent decision in Kennedy v. Louisiana demonstrate that blogs can both highlight errors in Court decisions and generate new arguments relevant to ongoing litigation. In addition, legal blogs create the opportunity for Supreme Court advocates to engage in ex parte blogging—posting persuasive material about a pending case in the hopes of directly influencing the Court’s decisions. Attorneys for parties and amici in cases before the Court already sometimes post arguments online about their cases shortly after oral argument— potentially a crucial time in the Court’s decision-making process—and evidence suggests that the Justices and their clerks may well encounter some of these posts online. Yet no one has analyzed the ethical implications of this practice, or what its effects might be on different groups appearing before the Court. This Note examines the relationship between ex parte blogging and the traditional concepts of prejudicial publicity and ex parte communications. The Note concludes that ex parte blogging threatens the impartial administration of justice and will systematically disadvantage some litigants. Thus, the legal profession should consider regulating ex parte blogging, despite the contributions that counsel for parties and amici might make to public discourse about constitutional and legal issues.

Oddly, the summary does not appear to encompass the option presented on page 36 of the paper:

Sometimes, the best response to troubling speech is for the audience to “avert[] their eyes.” If the Justices do not read ex parte blog posts, the impartiality of the justice system will be preserved. Although no one dictates rules to the nation’s highest court, it could undertake the task of ex parte regulation itself, either by subscribing to the Code of Judicial Conduct or by adopting internal practices to encourage adherence to a similar ex parte principle. Law clerks at the Court are already reputedly asked to sign a pledge of confidentiality, and surely the Justices have other expectations of their clerks’ conduct. Clarifying that deliberately viewing blog posts concerning pending cases is unacceptable in chambers—and announcing publicly that the Justices have done so, both to remove the incentive for advocates to post and also to reduce the public perception of unfairness—would be a simple and largely effective answer to the ex parte blogging problem. Such self-imposed discipline would also have the advantage that it could also extend more broadly to cover material from law reviews and newspapers as necessary, without triggering concerns about unconstitutional restrictions on speech.

Indiana's Supreme Court in 2008 adopted Ind. Code of Judicial Conduct Rule 2.9(C):

RULE 2.9: Ex Parte Communications * * *

(C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.

(D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge’s direction and control. * * *

Comment [6] The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.

Posted by Marcia Oddi on May 7, 2009 08:25 AM
Posted to Courts in general

Law - "More States Start Pension Inquiries "

Mary Williams Walsh has a long story today in the NY Times examining fraud related to state pension fund investment across the county. Problems in New York, Texas and New Mexico are featured. Some quotes:

The sprawling investigation into New York’s pension investments hints at a much bigger problem than the handful of indictments so far would suggest.

What started as an investigation by the New York attorney general, Andrew M. Cuomo, into the state comptroller’s office — where Mr. Cuomo says favors were being exchanged for contracts to invest pension money — has mushroomed into a broad look at more than 100 firms by attorneys general in at least 30 other states.

A survey of practices across the country portrays a far-reaching web of friends and favored associates: political contributors, campaign strategists, lobbyists, relatives, brokers and others, capitalizing on relationships and paying favors. These influential figures can determine how pension funds are invested, as well as state university endowments, municipal bond proceeds, tobacco settlement funds, hurricane insurance pools, prepaid tuition programs and other giant blocks of public money.

“What has developed is a corrupt system, where Wall Street, various fiduciaries, politicians and corporate managers are draining America’s savings,” said Frederick S. Rowe, a hedge fund manager who serves on the Texas Pension Review Board, an oversight body. * * *

Investing public money on the basis of political considerations, rather than merit, heightens the risk of waste and loss, an urgent issue given the market losses of the last year. In 2007 the Government Accountability Office studied a group of pension funds known to be advised by consultants with conflicts of interest, and found their average yearly investment returns were 1.3 percent lower than those of other pension funds. That may sound small, but it can severely erode a fund over time because the losses multiply. * * *

In recent weeks, the New York comptroller and officials in other states have issued rules barring the use of intermediaries — often called placement agents — who are paid by money managers to open doors and help them win allocations from state and local governments. But even those restraints, long resisted, may not work well. Across the country, an examination of practices suggests that time and again pension officials are making poor investment choices and incurring losses because personal connections skew their decision-making. * * *

The New Mexico council recently disclosed that a top fund-raiser and political ally of the governor, Marc Correra, was paid a placement fee by the investment firm that sold the toxic mortgage securities criticized by Mr. Foy. The records also show that Mr. Correra has been paid roughly $11 million as the placement agent for more than 20 other investments — all private equities, hedge funds and complex structured debt — that have come through the investment council’s door since Governor Richardson took office in 2003.

Investments like those promoted by Mr. Correra, called alternative investments, are controversial for public investment funds to invest in because there is not a ready market for them should the government suddenly need money. They are hard to value, too, and they carry higher risks in the pursuit of higher returns. The investment firms that offer them tend to earn much higher fees, which means a bigger cut for the placement agents.

Mr. Correra’s lawyer, Ronald L. Rubin, said his client earned his fees through hard work and believed he had complied with all the rules. “He wants to follow the law,” said Mr. Rubin, with the firm of Tannenbaum, Helpern, Syracuse & Hirschtritt in New York.

Governor Richardson has suspended new investments in private equity firms, hedge funds and other alternatives.

Posted by Marcia Oddi on May 7, 2009 08:07 AM
Posted to General Law Related

Ind. Courts - Still more on: A Marion County public defender caught in child solicitation sting

Updating this ILB entry from Feb. 19, 2008, Jon Murray reports today in the Indianapolis Star:

A former Marion County public defender was sentenced to two years in prison today for child solicitation.

Ryan W. Snyder, 30, was caught in an Internet sex sting in February 2008. He showed up to a 7/11 store at Southport Road and McFarland Avenue for a planned meeting after a sexually tinged online chat with an investigator posing as a 15-year-old girl named “Mandy,” according to a probable cause affidavit.
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Snyder pleaded guilty to the Class C felony; his attorney, James Voyles, requested probation or another alternative to prison, noting that he had undergone extensive counseling. But Marion Superior Court Judge Mark Stoner dwelled heavily on Snyder’s yearlong position as a public defender before his arrest. * * *

The Public Defender Agency terminated Snyder’s employment after his arrest. He will have to register as a sex offender, and Voyles said attorney disciplinary action is pending with the Indiana Supreme Court.

Posted by Marcia Oddi on May 7, 2009 07:45 AM
Posted to Indiana Courts

Wednesday, May 06, 2009

Ind. Law - "Daniels OKs online voter registration"

Patrick Guinane is reporting this evening in the online NWI Times:

Registering to vote in Indiana soon will be just a few clicks away. Gov. Mitch Daniels on Wednesday signed a new law authorizing Secretary of State Todd Rokita to begin offering online voter registration in July 2010. That means the new option will be available prior to the November general election.

"I'm pleased our representatives in the General Assembly recognize that we can use online tools to streamline the registration process and make voting more convenient and attractive," Rokita, a Munster native, said in a statement. "Because of the technology we have, coupled with our state's Photo ID law, we can offer online registration and maintain, even enhance, the integrity of our elections."

That bill is HEA 1346. The Governor's Bill Watch page does not yet reflect the Governor's action on HEA 1346.

A story yesterday by Deanna Martin of the AP described both HEA 1346 and the other big election law bills pending before the Governor -- SB 209, which deals with provisional ballots and voting centers, the subjects of litigation last fall.

Posted by Marcia Oddi on May 6, 2009 07:18 PM
Posted to Indiana Law

Ind. Law - More bills received by the Governor

The 2009 Bill Watch on the governor’s Web site has just been updated. Eighty-three bills were received and 33 bills were signed by the governor this afternoon.

Among those received are three the ILB has been following:

• HEA 1468 - Animal cruelty and commercial dog breeders
  
• HEA 1483 - Off-road vehicles, farm wagons, and golf carts
  
• HEA 1491 - St. Joseph Superior Court Judges

The Governor has until Wed., Feb. 13th to act on bills he received today.

Posted by Marcia Oddi on May 6, 2009 04:57 PM
Posted to Indiana Law

Courts - More on "A Good Time to Be a Bankruptcy Lawyer"

Updating this ILB entry from April 17th, Nathn Koppel writes today in the WSJ Law Blog, in an entry that begins:

Bankruptcy lawyers are fat and happy these days; that much we have documented.

But are judges to blame for the fact that bankruptcy lawyers are earning such big bucks? Yes, according to a study out today from UCLA Law professors Lynn LoPucki and Joseph Doherty.

“Meaningful objections to fee requests are few, and judges are shirking the duty to review fees absent objection,” the authors write. From 1998 to 2007, according to the study, bankruptcy professional fees increased more than 10% annually; more than twice the rate of inflation.

The problem, according to the study, is that judges routinely allow illegal fee practices in public-company bankruptcies.

Posted by Marcia Oddi on May 6, 2009 03:37 PM
Posted to Courts in general

Ind. Decisions - Still more on: "Appeals court calls non-violent protective orders defective"

Supplementing this ILB entry from April 30th on the COA's decision April 16th in the case of Moore v. Moore, the ILB has now obtained copies of the Appellant and Amicus briefs.

• Brief of Appellant Devone Moore

• Indiana Coalition Against Domestic Violence's Motion to File Brief Amicus Curiae

• Brief of the Indiana Coalition Against Domestic Violence's Motion, Amicus Curiae

Posted by Marcia Oddi on May 6, 2009 02:53 PM
Posted to Ind. App.Ct. Decisions

Law - "Gay-rights activists have moved remarkably close to their goal of making same-sex marriage legal throughout New England just five years after Massachusetts became the first state in the nation to allow it"

Earlier today Abby Goodnough and Katie Zezima of the NY Times reported:

AUGUSTA, Me. — Gay-rights advocates moved remarkably close to their goal of making same-sex marriage legal throughout New England on Tuesday, when the Maine House of Representative voted to legalize such unions.

Supporters of same-sex marriage have won victory after victory this spring, with the legislatures of Vermont, New Hampshire and now Maine embracing it. The region is close to offering such marriages full support; Massachusetts was the first state in the nation to let gay couples marry in 2004, and Connecticut began allowing same-sex marriage last fall.

But in Maine and New Hampshire, the governors, both Democrats, will be pivotal in determining whether same-sex marriage proponents succeed in winning over an entire region of the country. Neither Gov. John Baldacci of Maine nor Gov. John Lynch of New Hampshire has made his intentions public. Both men opposed same-sex marriage in the past but have indicated they might be reconsidering.

No governor has yet signed a same-sex marriage bill that was not the result of court ruling. Gov. Jim Douglas, a Republican, vetoed a bill in Vermont last month, and the Legislature then enacted it after an override. And Gov. Arnold Schwarzenegger, also a Republican, vetoed a similar bill in California in 2005.

Supporters of the measures probably do not have enough support to override a veto in Maine or New Hampshire.

With the movement enjoying momentum from the string of recent victories — including the Iowa Supreme Court’s decision last month that same-sex marriage should be legal there — Mr. Baldacci and Mr. Lynch are facing considerable pressure from advocates and from their own party, which increasingly supports same-sex marriage.

Mr. Lynch will have five days to make a decision after the bill reaches his desk; Mr. Baldacci will have 10.

In California, where the State Supreme Court may rule this week on whether a voter-approved ban on same-sex marriage is constitutional, gay-rights advocates are optimistic even though many expect the ruling to uphold the ban.

The next state to debate same-sex marriage will probably be New York. Gov. David A. Paterson, a Democrat, introduced a marriage bill last month and the State Assembly, which strongly supports it, will probably take it up next week. The bill’s fate in the Senate is less certain. * * *

After the Senate’s vote last week, Mr. Lynch restated his belief that the state’s two-year-old civil-union law provided sufficient rights and protections to gay couples. But he did not repeat an earlier statement that marriage should be only between a man and a woman.

While the Iowa decision gave supporters of same-sex marriage an important first victory in the nation’s heartland and a few other states are considering legislation this year, New England remains the nucleus of the movement.

A NY Times update this afternoon is headlined: "Maine Governor Signs Same-Sex Marriage Bill ." Some quotes:

BOSTON — Gov. John Baldacci of Maine on Wednesday signed the same-sex marriage bill passed by the State Legislature, saying he had reversed his position on such marriages after deciding it was a matter of equal protection under the state’s Constitution. * * *

[Meanwhile, New Hampshire Governor Lynch] will have five days to make a decision after the bill reaches his desk. Several political observers have guessed that Mr. Lynch, who might run again, would let New Hampshire’s become law without his signature, as state law permits.

Posted by Marcia Oddi on May 6, 2009 02:11 PM
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 today (and 11 NFP)

[Note: Links now fixed. Sorry.]

For publication opinions today (0):

NFP civil opinions today (1):

Aaron Israel v. Evelyn Ridley-Turner, Craig Hanks, et al. (NFP)

NFP criminal opinions today (10):

Leonard D. Reed v. State of Indiana (NFP)

Samuel L. Pinkston v. State of Indiana (NFP)

Timothy Miller v. State of Indiana (NFP)

Stephen Gaskey v. State of Indiana (NFP)

Willie Lacy v. State of Indiana (NFP)

James A. Dobbs v. State of Indiana (NFP)

Joseph Ra v. State of Indiana (NFP)

James Johnson v. State of Indiana (NFP)

Ronrico D. Poindexter v. State of Indiana (NFP)

Terra Garrett v. State of Indiana (NFP)

Posted by Marcia Oddi on May 6, 2009 11:17 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - And yet another NFP COA decision reclassified

Updating this ILB entry from May 2nd, which began:

The ILB earlier this year began keeping an eye on NFP opinions reclassified as "for publication" by the Court of Appeals, via Ind. Appellate Rule 65(A).

Another COA NFP has been reclassified, the March 13th opinion in the case of Ford Motor v. Estate of Sally Moore.

In this case, the motion to reclassifiy as FP was opposed. Here are the relevant docket entries:

• 3/13/09 2009 TERM
  REVERSED----------BAILEY, J.
  BRADFORD, J. CONCURS
  RILEY, J. DISSENTS WITH SEPARATE OPINION
  MEMORANDUM DECISION/NOT FOR PUBLICATION
  28 PAGES KM
  
• 4/09/09 APPELLEE'S MOTION TO PUBLISH MEMORANDUM DECISION (6) CERTIFICATE OF SERVICE (6) BY MAIL 4/9/09
  
• 4/13/09 APPELLEE'S PETITION FOR TRANSFER (9)
  CERTIFICATE OF SERVICE (9) BY MAIL 04/13/09. **SALLY MOORE** EF 04/13/09
  
• 4/27/09 APPELLANT TRW VEHICLE SAFETY SYSTEMS INC.'S OPPOSITION TO APPELLEE SALLY MOORE'S MOTION TO PUBLISH (6) CERTIFICATE OF SERVICE (6) BY MAIL 04/27/09.
  
• 4/27/09 FORD MOTOR COMPANY'S RESPONSE TO PLAINTIFF'S MOTION TO PUBLISH (6) CERTIFICATE OF SERVICE (6) BY MAIL 04/27/09.
  
• 5/01/09 ISSUED THE ENCLOSED ORDER:
  HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS FOLLOWS:
  APPELLEE'S MOTION TO PUBLISH MEMORANDUM DECISION IS GRANTED. THIS COURT'S OPINION HANDED DOWN IN THIS CAUSE ON MARCH 13, 2009, MARKED MEMORANDUM DECISION, NOT FOR PUBLICATION, IS NOW ORDERED PUBLISHED
  FOR THE COURT, JOHN G. BAKER, CHIEF JUDGE
  RILEY, BAILEY, BRADFORD, J.J., CONCUR. KM
  

Posted by Marcia Oddi on May 6, 2009 10:36 AM
Posted to Ind. App.Ct. Decisions

Courts - "Justice Ginsburg: Court needs another woman"

Joan Biskupic of USA TODAY reports, in a lengthy story today that begins:

WASHINGTON — Three years after Justice Sandra Day O'Connor left the Supreme Court, the impact of having only one woman on the nation's highest bench has become particularly clear to that woman — Ruth Bader Ginsburg.

Her status as the court's lone woman was especially poignant during a recent case involving a 13-year-old girl who had been strip-searched by Arizona school officials looking for drugs. During oral arguments, some other justices minimized the girl's lasting humiliation, but Ginsburg stood out in her concern for the teenager.

"They have never been a 13-year-old girl," she told USA TODAY later when asked about her colleagues' comments during the arguments. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."

As Justice David Souter prepares to retire at the end of the term this summer, the significance of Ginsburg's position as the nine-member court's only woman has become a point of broad discussion. President Obama is under pressure from groups such as the National Women's Law Center to nominate another woman.

In interviews with USA TODAY before Souter's retirement announcement Friday, Ginsburg said the court needs another woman. "Women belong in all places where decisions are being made. I don't say (the split) should be 50-50," Ginsburg said. "It could be 60% men, 40% women, or the other way around. It shouldn't be that women are the exception."

Since O'Connor's departure in 2006, oral arguments and the justices' behind-the-scenes discussions on how disputes should be resolved have had a different tone. In the strip-search case and others this term, Ginsburg has revealed a woman's point of view that was strikingly at odds with those of many of her colleagues.

Ginsburg dominated oral arguments in an important case involving alleged discrimination related to pregnancy leaves. She was openly frustrated that some of her male colleagues, in her view, might not have understood the discrimination women face on the job.

She said the arguments in that dispute echoed those of a 2007 case involving Lilly Ledbetter, a 19-year worker at a Goodyear tire factory in Alabama who alleged that her pay dropped over time compared with men who had equal or less seniority. In that case, the court — with Ginsburg vigorously dissenting — narrowly ruled that women could not sue for pay inequities resulting from sex discrimination that had occurred years earlier.

Oral arguments in the pregnancy case were "just, for me, Ledbetter repeated," Ginsburg told USA TODAY, adding that her colleagues showed "a certain lack of understanding" of the bias a woman can face on the job.

In the justices' private conferences, during which they preliminarily discuss how they will vote on a dispute, Ginsburg said she feels the absence of O'Connor, who was the first woman on the court. O'Connor retired to care for her husband, John, who has Alzheimer's.

"At the conference, she spoke long before I did," Ginsburg said, referring to the court's pattern of seniority for discussion of a case. Noting O'Connor's forceful presence, Ginsburg added, "She is not an on-the-one-hand, on-the-other-hand person."

And, as I've written several times recently, the same rationale applies to the Indiana Supreme Court, which has no women.

Posted by Marcia Oddi on May 6, 2009 10:11 AM
Posted to Courts in general

Environment - "Experts weigh toxic threat from coal ash: New regulations may consider it hazardous waste"

James Bruggers of the Louisville Courier Journal has this story today, that begins:

LEXINGTON, Ky. -- A senior U.S. Environmental Protection Agency official told utility industry officials and academic researchers yesterday that national regulations on handling ash from coal-fired power plants are coming -- and they may include classifying the material as hazardous waste.

"That issue is squarely on the table," said Matt Hale, director of the EPA's Office of Solid Waste and Emergency Response -- due in part to the massive coal ash spill in eastern Tennessee last December, which spread 5.4 million cubic feet of ash sludge from a Tennessee Valley Authority power plant across 300 acres.

"The catastrophe at TVA changed the discussion and focused the discussion," Hale said, adding that it raised issues of ash impoundment stability for the first time within EPA, and renewed concerns over the toxic constituents of ash, such as arsenic and other heavy metals.

Hale's comments came at the start of the 2009 World of Coal Ash conference, organized by the American Coal Ash Association and the University of Kentucky's Center for Applied Energy Research.

The conference has drawn more than 500 people from 21 countries to discuss the management of a voluminous and global stream of waste -- more than 125 million tons annually in the United States alone.

It's an issue of huge importance in Kentucky and Indiana, which are more than 90 percent dependent on coal for electricity, and ranked first and third in production of such wastes in a 2006 federal study.

Industry officials have argued against a hazardous waste classification, saying it would greatly increase the costs of disposal to companies and customers and place a stigma on growing efforts to find commercial uses for ash, such as in concrete.

Here is a long list of earlier ILB entries about coal ash.

Posted by Marcia Oddi on May 6, 2009 10:06 AM
Posted to Environment

Courts - "National Mock Trial Competition Encounters a Real Legal Challenge "

The ILB on March 31st posted this entry on the National High School Mock Trial Competition, headed "Kentucky students' court operates just like real thing." Today the NY Times reports that the competition has run into trouble. From the story by Robbie Brown:

ATLANTA — The nation’s top high school mock trial competition has become an actual legal battleground.

Earlier this spring, the Maimonides School, an Orthodox Jewish day school in Brookline, Mass., won the state mock trial championship — and with it a coveted spot in the prestigious national competition in Atlanta this weekend. But the finals of the tournament fall on Saturday, and the students do not compete on the Sabbath.

When tournament organizers refused to tweak the schedule, the students’ parents and school officials did what supporters of any attorney-in-training might do: they hired a lawyer, Nathan Lewin, a renowned litigator who has tried cases before the United States Supreme Court. Mr. Lewin filed a complaint of religious discrimination with the Department of Justice, which promised to investigate.

The Anti-Defamation League also sent a letter of complaint to the National High School Mock Trial Championship, and parents expressed their concerns to Georgia’s attorney general and the state bar association, the host of the competition.

“We care about our children getting to participate,” said Jeffrey J. Kosowsky, a consultant whose son, Michael, is a team captain. “We don’t care about suing, but we want to make sure that they take this seriously.”

The students, whose school had never won a state championship in any activity, were crestfallen when told of the national scheduling problem. But they were also excited about their new role.

“The idea of a mock trial being in the middle of a real legal battle is pretty cool,” said Leah Sarna, 17, another captain.

Her father, Jonathan D. Sarna, a well-known professor of Jewish history at Brandeis University, said the team was learning a legal lesson about “what it means to be a minority group.”

The team will compete in the tournament on Friday but will not be able to win the championship.

In 2005, another Jewish school competed in the tournament, which was held in North Carolina that year. The schedule was changed for the team, but tournament organizers later adopted a rule against making special exceptions.

Posted by Marcia Oddi on May 6, 2009 09:53 AM
Posted to Courts in general

Ind. Decision - Charges dismissed as a result of last week's Supreme Court decision

Anna Rochelle of the Greene County Daily World has a report today on the impact of last week's (April 30th) Supreme Court decision in the case of Richard P. Wallace v. State of Indiana. Some quotes:

The case against Robert "Bobby" Patterson of Bloomfield was dismissed Tuesday after both the defense and the prosecution had filed motions in Greene Superior Court requesting the case be dropped.

Patterson was charged in late March with failure to register as a sex or violent offender, a class D felony.The 62-year-old Patterson is considered a violent offender because of his conviction on Nov. 12, 1981, of the murder of 15-year-old Kathy Sanford in Bloomfield in late January, 1980. At the age of 35, Patterson was sentenced to 40 years in prison. With "good time" credit, he completed his sentence and was released from prison in 2002.

Patterson current offense was charged under the Indiana Sex and Violent Offender Registration Act.

When this registration law was enacted, it only applied to sex offenders. In 2007, the law was amended to include violent offenders -- five years after Patterson was released from prison on the murder conviction.

Both motions for dismissal were prompted by an Indiana Supreme Court decision handed down last Thursday in a similar case involving Richard Wallace, a convicted sex offender. Patterson is a convicted violent offender. Both were required to register under Indiana law.

In both cases, they were charged, convicted and had served their sentence for their crime before the requirement for them to register was enacted. In Wallace's case, it was the requirement to register as a sex offender, in Patterson's, as a violent offender.

The defense motion to dismiss pointed out, "The Indiana Constitution provides that 'no ex post facto law ... shall ever be passed.'""Ex post facto" is a Latin term for "after the fact." A general explanation of an ex post facto law is a law that is retroactive, or that changes the consequences of a crime after the crime was committed.

In the Wallace case, he had already completed a sentence for child molesting before the Act was enacted. When the decision was made last Thursday, the court said Wallace's conviction violated the state constitution's prohibition of retroactive laws. * * *

The first motion to dismiss the Patterson case was filed Monday morning by Greene County Public Defender Alan Baughman who was appointed to represent Patterson.

The defense motion contended that the law under which Patterson has been charged, the Indiana Sex and Violent Offender Registration Act, subjected him to punishment which is prohibited under the Indiana Constitution.

The second motion was filed Tuesday by Greene County Deputy Prosecutor Cheryl Jackson-Stone.

The state's motion requested the court dismiss the case for the reason that it cannot proceed with prosecution due to the recent Indiana Supreme Court decision in Wallace v. State.

On Tuesday morning, Prosecutor Jarrod Holtsclaw said he had read the Wallace decision.

"We have no choice," said Holtsclaw. "The Indiana Supreme Court does have the final say on Indiana laws. Unless it's taken to the United States Supreme Court, we have to abide by the Indiana Supreme Court's decision." * * *

Holtsclaw said most people in Indiana's judicial arena have been waiting on this decision for quite some time.

Not only does the ruling affect the Patterson case, but it is expected to affect many other cases in the state.

"This could affect hundreds, maybe thousands, of other cases. We're trying to see how many other cases in Greene County will be affected. I've asked the Public Defender's Office to take a look at other cases," said Holtsclaw.

Posted by Marcia Oddi on May 6, 2009 08:25 AM
Posted to Ind. Sup.Ct. Decisions | Ind. Trial Ct. Decisions

Tuesday, May 05, 2009

Ind. Decisions - Supreme Court issues one today

In Samuel Hardley v. State of Indiana, an 11-page, 3-2 opinion, Justice Dickson writes:

To address conflicting opinions from the Court of Appeals and to consider the import of recent decisions of this Court, we grant transfer and hold that the State may challenge the legality of a criminal sentence by appeal without first filing a motion to correct erroneous sentence, and that such appeal need not be commenced within thirty days of the sentencing judgment. * * *

Shepard, C.J., and Sullivan, J., concur.
Boehm, J., dissents with separate opinion in which Rucker, J., concurs. [The dissent begins] I respectfully dissent. The majority holds that the State may challenge what it contends to be an illegal sentence by raising the issue in its appellee’s brief in the Court of Appeals, even though the issue was never presented to the trial court. I agree that longstanding precedent permits the State to raise sentencing errors in a cross-appeal of a defendant’s direct appeal. Stephens v. State, 818 N.E.2d 936, 940 (Ind. 2004) (citing Rogers v. State, 270 Ind. 189, 191, 383 N.E.2d 1035, 1036 (1979)); Ind. Appellate Rule 7(A). However, I would not permit the State to appeal an erroneous sentence without first raising the issue in the trial court.

Posted by Marcia Oddi on May 5, 2009 03:24 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Re the Appellate Clerk's docket, has the other shoe finally dropped?

This ILB entry from April 1st began:

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."

This entry from Oct. 8, 2008 stated:

Today the Supreme Court has filed two orders that hopefully will put the Clerk's Docket back the way it was.

But in the entry from April 1st of this year, the ILB noted that things were not "back the way they were before the Clerk's office started removing them," and continued:

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 wrote to Clerk of the Courts Clerk Kevin Smith. Here is an edited version, to see the whole go to the April 1st entry:

ILB - Second, are you planning to restore all the juvenile, etc. dockets that were removed last year?

KS - 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)).

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).

Well, the answer is now in, and it appears to be "no." I have received a copy of a Supreme Court Order filed April 30, 2009 which states in part:

We interpret the requiremnts of Administrative Rule 9(G)(4)(a)(i) to apply only to appeals that were pending as of or filed after January 1, 2009, and not to appeals that were final before January 1, 2009

Posted by Marcia Oddi on May 5, 2009 01:27 PM
Posted to Indiana Courts

Ind. Law - "It's the Law: Part 2 of State law allows most tattoos, body piercings"

Ken Kosky's NWI Times' "It's the Law" column Monday looked at Indiana's health regulations which govern tattoo parlors and body piercing facilities. Some quotes:

Although Indiana law allows tattoo artists and body piercing workers to provide their services to adults and to children with a parent or guardian's permission, there are several state health regulations that workers are required to follow.

Porter County Health Department Administrator Keith Letta said his staff has been visiting the estimated 12 to 15 businesses in Porter County to make sure they are aware of the rules that govern them and to inspect their operations.

"We are quite pleased with most of them. Most of them are doing a pretty good job," Letta said.

The Indiana State Department of Health's tattoo and piercing rule states that facility operators must provide bloodborne pathogen training and infectious waste training to all tattoo artists and body piercers or other employees who are at risk for contact with blood or other infectious materials. Facility operators also required to make sure employees have and use personal protective equipment.

Facility operators must also develop a written policy the requires the use of universal precautions, requires disinfection or sterilization of reusable items, requires safe handling of infectious waste and provides punishment for violating the policy.

The tattoo artists, body piercers and other employees are required to complete bloodborne pathogen and infectious waste training. If there is a risk of contamination from blood or other infectious materials, they area also required to wear a protective layer of clothing, masks in combination with eye protection and disposable gloves.

Only single-use razors, single-use stencils, single-use articles for drawing onto the skin and single-use needles and dyes must be used. Reusable equipment must be sterilized or disinfected. Tattooing and body piercing can't be done in any rooms that serves as living quarters or that opens directly into living quarters. Animals are prohibited in work areas unless they are police dogs or guide dogs. Eating, drinking and smoking are not allowed in work areas.

Posted by Marcia Oddi on May 5, 2009 01:21 PM
Posted to Indiana Law

Environment - "Further briefing due in pollution case"

This item posted by Lyle Denniston of SCOTUSBlog will be of interest to environmental lawyers -- it deals with the kind of permit required for dumping “dredged or fill” dirt.

Posted by Marcia Oddi on May 5, 2009 01:14 PM
Posted to Environment

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In Metro Health Professionals, Inc. v. Chrysler, LLC, a 13-page opinion, Judge Brown writes [emphasis by ILB]:

Metro Health Professionals, Inc. (“MHP”), appeals the trial court‟s grant of summary judgment to Chrysler, LLC. MHP raises one issue, which we revise and restate as whether the trial court erred by granting Chrysler‟s motion for summary judgment and denying MHP‟s motion for summary judgment. We reverse. * * *

This case requires that we interpret the Indiana Motor Vehicle Protection Act. * * *

The Indiana Motor Vehicle Protection Act, commonly known as the Lemon Law, is found at Ind. Code §§ 24-5-13-1 to -24. * * *

MHP argues that the nonconformity in this case was subject to repair four times but continued to exist. MHP argues that the trial court therefore erred when it concluded that the Lemon Law required “that the nonconformity continue to exist after each additional repair attempt that follows a reasonable number of repair attempts” under Ind. Code § 24-5-13-15(a). Appellant‟s Brief at 9. Chrysler, on the other hand, argues that the grant of summary judgment in its favor is proper because MHP failed to show that the nonconformity continued to exist after its fifth attempt at having the vehicle repaired. Indiana courts have not yet addressed this issue. * * *

We hold that the plain language of Ind. Code § 24-5-13-15(a)(1) obligates a consumer to demonstrate that the vehicle was subject to repair at least four times and that the same defective condition remained unresolved after the fourth attempt. Therefore, once a consumer has met the four-repair threshold and the defect remains unresolved, the requirements of Ind. Code 24-5-13-15(a)(1) have been met. The requirement that the defect “continues to exist” is another way of saying that the fourth repair attempt was unsuccessful. * * *

For the foregoing reasons, we reverse the trial court's grant of the motion for summary judgment filed by Chrysler and the trial court's denial of MHP's motion for summary judgment and enter summary judgment in favor of MHP.

In Jacobsville Developers East, LLC v. Warrick County, Indiana, et al, a 10-page opinion, Judge Crone writes:

Jacobsville Developers East, LLC (“JDE”), appeals the trial court’s dismissal of its complaint for inverse condemnation against the Warrick County Board of Commissioners (“County”) and the Warrick County Area Planning Commission (“APC”). We affirm.

The dispositive issue is whether the trial court erred in dismissing JDE’s inverse condemnation action for lack of subject matter jurisdiction. * * *

In sum, when the APC denied JDE’s first plat application on the basis that the fifty-foot strip was not dedicated, JDE had a potential Dolan claim for excessive exaction and not a claim for an actual, uncompensated taking. However, JDE never went before the certiorari court to attempt to establish an excessive exaction. Instead, it sought approval of a second application in which it included the very dedication it now claims to constitute an unconstitutional taking. “[T]he exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate.” Williamson County, 473 U.S. at 193 (emphases added). Therefore, in failing to fully pursue the judicial review remedy available in the certiorari court, JDE failed to exhaust its available administrative remedies. As a result, the trial court lacked subject matter jurisdiction to hear JDE’s substantive exaction claim. Accordingly, we affirm the trial court’s dismissal of JDE’s complaint.

NFP civil opinions today (1):

The Term. of the Parent-Child Rel. of S.S., M.H., and D.C., and Sharon C. and David S., Albert H. and Rick C. (NFP)

NFP criminal opinions today (7):

Nathan Brock v. State of Indiana (NFP)

Jeremy C. Greene v. State of Indiana (NFP)

Charlotte Saunders v. State of Indiana (NFP)

Terry Eldridge v. State of Indiana (NFP)

Juan C. Gamboa v. State of Indiana (NFP)

Sharman Marlon Pearson, II v. State of Indiana (NFP)

Randal Barnes v. State of Indiana (NFP)

Posted by Marcia Oddi on May 5, 2009 12:51 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Marion County Traffic Court in the news today

Jon Murray of the Indianapolis Star has a story today about the scrapping of the plan to move the court "to a new court complex near Lafayette Square Mall ." The current location is "on East 10th Street at Post Road, inside a police training center." Murray also has a side-bar about the traffic court scene:

The first three months under new Judge Bill Young brought stiffer fines, jam-packed proceedings and a gruff atmosphere to Marion County's traffic court.

» Working through the backlog: Double- and triple-booked court sessions have ended. Such sessions enabled the court to work through a backlog, Young said, and now the staff is setting court dates six weeks out from the time drivers contest their tickets, instead of several months.

» High volume: The court, 9049 E. 10th St., is plagued by crowding. It handles 200,000 infractions and misdemeanors a year. Last year, it collected $23.2 million in fines. Most infractions are paid without a visit to the courtroom.

» In search of a home: Officials had hoped to relocate to a complex (right) near Lafayette Square Mall.

The eventual move, Young said, "will help with a lot of people's attitudes. This is not a pleasant place."

Murray had an earlier story on the traffic court, on Feb. 22nd - see this ILB entry headed "Judge gets tough in Marion County traffic court."

Also of interest is this blog entry today by Paul Odgen, headed "Marion County Traffic Court Violates the Law?"

Posted by Marcia Oddi on May 5, 2009 12:33 PM
Posted to Indiana Courts

Courts - "Sixteen Months of Rulings Down the Drain at the NLRB?"

Recall this ILB entry from May 1st, headed "Nearly simultaneous, conflicting Circuit Court NLRB opinions issued this afternoon." It included this quote from an AP story:

In rulings rendered virtually simultaneously, the U.S. Court of Appeals in Washington held that a decision handed down last year by the National Labor Relations Board is invalid because it was made by just two members while a federal appellate court Chicago took the opposite position. It held within the same hour that a vote by the two members was appropriate and binding.

Yesterday the WSJ Law Blog reported at length on the DC Circuit ruling. A quote from the end of the entry:

We checked in with Proskauer Rose’s Peter Conrad, a partner and labor & employment specialist and the author of this Proskauer client memo on the ruling.

Conrad said that while the impact of the ruling was potentially quite far-reaching, the rationale of it makes sense. “The law is fairly clear,” says Conrad. “It says that among other things, a quorum of the board shall require three members. Other courts — namely the First Circuit and the Seventh Circuit — have ruled otherwise, but I don’t think those courts’ analysis is as persuasive.”

Conrad adds that, at this point, there exist more unknowns than knowns about what the ruling means, though he predicts that the ruling could trigger an assessment of all 400 or so cases handled by Liebman and Schaumber to see where they stand. “My guess is that they’ll leave alone all those in which the GC of the NLRB failed to prevail,” but that still presumably leaves a lot of other cases. “If you’re an employer who lost, theoretically you’d now have the wherewithal to go running to the D.C. Circuit” to appeal, added Conrad.

Nor was Conrad sure how the NLRB would go forward, with only two members. “Will they continue to issue opinions?” he asks. “I’m just not sure. Everything’s been thrown up in the air.”

[More] See also this item from The Blog of Legal Times.

Posted by Marcia Oddi on May 5, 2009 12:14 PM
Posted to Courts in general

Courts - "The tricky sex offender case that could trip up one of the judges on the short list to replace Souter"

Remember the 2004 case of John Doe v. City of Lafayette? Here, from Feb. 24, 2005, is an ILB entry with links to earlier entries in the case, Here is the introduction to the dissent in the 8-3 en banc opinion of the 7th Circuit, issued July 30, 2004:

WILLIAMS, Circuit Judge, with whom ROVNER and DIANE P. WOOD, Circuit Judges, join in dissenting. John Doe was banned for life from all park property in the City of Lafayette, Indiana—including a golf course, sports stadium, and city pools. As this ban violates Doe’s First Amendment right to freedom of thought by impermissibly punishing him for those thoughts, I respectfully dissent.

Judge Wood is now among those being mentioned for nomination to the SCOTUS. Emily Bazelon last evening posted in Slate an outstanding three-page analysis of the 7th Circuit opinions in Doe, and Judge Woods' part in them. Some quotes:

The district judge [Sharp] who got the case ruled in favor of the city, based on Lafayette's interest in protecting the health and safety of its residents. A three-judge panel of the 7th Circuit heard the case on appeal. In a 2-1 split, Wood and Williams reversed the district court, finding that the decision to ban Doe from the public parks violated his First Amendment rights, while Judge Kenneth Ripple dissented. Williams wrote the majority opinion. Eleven judges of the 7th Circuit then reheard the case. (This second round is called en banc.) In an 8-3 ruling, the en banc majority reversed Williams' initial ruling. In this second round, Wood and Williams dissented, along with Judge Ilana Rovner. Ripple's dissent became the majority opinion, and Posner and Easterbrook joined it, along with five other judges.

Ripple's majority opinion for the en banc court frames the city's ban as punishing Doe not merely for his thoughts, but for "thought plus conduct." Ripple writes:

The inescapable reality is that Mr. Doe did not simply entertain thoughts; he brought himself to the brink of committing child molestation. He had sexual urges directed toward children, and he took dangerous steps toward gratifying his urges by going to a place where he was likely to find children in a vulnerable situation.

To characterize the ban as directed at 'pure thought' would require us to close our eyes to Mr. Doe's actions. ... We cannot ignore, nor can we say the law somehow commands the City to ignore, Mr. Doe's pedophilia and the history of his battle with that affliction.

Williams' dissent, on the other hand, points out that this is "a rare case where thoughts, as distinct from deeds, become publicly known." Williams notes: "It is clear on this record, that absent Doe's thoughts (and arguably his status as a pedophile …) the City would be uninterested in Doe's decision to go to the park that fateful day." We don't normally restrict people's liberties based on their thoughts, Williams argued, and we shouldn't; this is "a cornerstone of the criminal justice system," and it's a crucial limit on government power.

Posted by Marcia Oddi on May 5, 2009 11:51 AM
Posted to Courts in general

Ind. Courts - "A case for veto of court-expansion bill"

The ILB has had a long list of entries on HEA 1491, the bill now pending the Governor's signature, that would change the method of selection of judges in St. Joe County, plus add a new sixth panel to the Indiana Court of Appeals.

Today, in a featured letter to the editor in the Indianapolis Star, Joel M. Schumm, a clinical professor of Law at the Indiana University School of Law in Indianapolis, who argues frequently before the Court of Appeals, makes a strong case against the addition of a sixth panel at this time:

Imagine a company does its job more efficiently than any similar company anywhere in the country. Its workload has remained steady over the last couple of years but has declined thus far in 2009. Employees might worry about downsizing in light of the tough economic times. Not in the world of government, though. It's time for a 20 percent expansion.

House Bill 1491 is government waste at its counterintuitive worst. At a price tag of more than $2 million each year, it adds three new judges and 16 new staff positions to the 15-judge Indiana Court of Appeals. This is the same court that is rightfully proud of being the most efficient appellate court in the country. The average age of pending cases fell from 1.6 months in 2007 to 1.1 months in 2008. The number of new cases filed increased by 0.2 percent (2,756 in 2008 compared to 2,748 in 2007). The legislature added five new staff attorney positions in 2007 to help with the caseload.

Regardless of staffing, appellate courts cannot process cases in much less than a month. The judge, with the help of a law clerk, must craft and revise an opinion, which must then be circulated to two other judges on the panel deciding the case. The case is then circulated to the entire court a week before it is issued.

Why increase the size of the most efficient appellate court in the country by 20 percent in the midst of one of the worst recessions in decades? The new judges would begin in 2011, which would allow Gov. Mitch Daniels an opportunity to make the appointments to a court currently occupied by 13 appointees of Democratic governors. The Indiana Constitution makes clear these appointments must be made "without regard to political affiliation," though. There is not a Democratic or Republican position in most types of cases, and judges of both parties take an oath to uphold the same Constitution. In a recent mayoral election appeal, a Daniels appointee sided with the Democratic candidate, while a Bayh appointee sided with the Republican candidate. That's how it should work.

But the larger question looms: What are these three new judges and 16 new staff members going to do if caseloads remain relatively flat, and the court is already processing cases as quickly as they come through the door? Wouldn't we all be better off if Daniels instead appointed 40 or 50 new teachers? There would be plenty of work waiting for them.

Daniels should veto this bill. The General Assembly can revisit the issue next year (or the year after) if caseloads skyrocket or workload slows the court even to third or fourth place out of 50 states.

Posted by Marcia Oddi on May 5, 2009 06:54 AM
Posted to Indiana Courts

Monday, May 04, 2009

Environment - Supreme Court Curtails Superfund Liability [Updated]

The SCOTUS decision today in Burlington Northern & Santa Fe Railway v. United States is the topic of a brief entry by Jonathan Adler of The Volokh Conspiracy. Here is an AP story, headed "Shell not at fault in cleanup." It begins:

The Supreme Court says Shell Oil Co. cannot be held responsible for cleanup of a contaminated site owned by a defunct company simply because it delivered chemicals to the site.

The court, in a 8-1 decision Monday, also decided that railroad companies that leased the defunct company part of the land would have to pay for a small part of the cleanup.

[Updated at 4:38 PM] Adam Liptak of the NY Times now has a story on the ruling. A quote:

Shell argued that it could not be held responsible for the spills because it did not qualify under the relevant part of the Superfund law, which applies to companies that “arranged for disposal” of hazardous substances. Justice John Paul Stevens, writing for the majority in the 8-to-1 decision, said the statutory language applied only when companies took “intentional steps to dispose of a hazardous substance.”

“Shell’s mere knowledge that spills and leaks continued to occur” with each delivery, Justice Stevens continued, “is insufficient grounds for concluding that Shell ‘arranged for’ the disposal.”

In dissent, Justice Ruth Bader Ginsburg wrote that Shell was “well aware” that its deliveries “directly and routinely” resulted in spills and leaks for more than 20 years. She added that she would have placed the cleanup costs on a company “whose activities contributed to the contamination rather than on the taxpaying public.”

The decision also addressed the liability of two railroad companies that had leased land to the distribution business. There was no dispute that these companies were subject to Superfund liability. The question was whether they could be made to pay all of the cleanup costs or just a portion of them.

The trial judge limited the companies’ liability to 9 percent of the total. He based his calculations on how much land the companies owned, how long they owned it and where the bulk of the discharges happened. The United States Court of Appeals for the Ninth Circuit reversed the judge’s decision, saying those calculations were based on estimates. As a consequence, the appeals court said, the companies could be held liable for the cost of the entire cleanup.

The Supreme Court, in turn, reversed that decision, saying that apportionment of liability is appropriate so long as there is a reasonable basis for determining the contribution of each wrongdoer.

Justice Ginsburg dissented on this point, too. While she praised the trial judge’s “heroic labor,” she said the railroad companies should have been required to prove their comparative lack of responsibility. Instead, she wrote, the companies simply disclaimed all responsibility.

That is not how the adversary system is supposed to work, Justice Ginsburg wrote. She said she would have returned the cases, Burlington Northern and Santa Fe Railway Company v. United States, No. 07-1601, and Shell Oil Company v. United States, No. 07-1607, to the lower courts to allow the parties to litigate the apportionment issue.

Posted by Marcia Oddi on May 4, 2009 02:49 PM
Posted to Environment

Ind. Decisions - Indiana COA decision remanded by SCOTUS today, in light of Arizona v. Gant

A reader has just sent me this note:

Today, SCOTUS granted certiorari in a case from the Indiana Court of Appeals and remanded the case back to the Court of Appeals "for further consideration" in light of SCOTUS's opinion last week in Arizona v. Gant, a Fourth Amendment case concerning searches incident to arrest. Interestingly, the Indiana case was a civil forfeiture case, not a criminal case. Here's a link to the order .

Here is the entry:

07-1167 MEISTER, VIRGINIA V. INDIANA, ET AL.
The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded to the Court of Appeals of Indiana, First District for further consideration in light of Arizona v. Gant, 556 U.S. ___ (2009).

Here is what the ILB posted about the Court of Appeals opinion on April 27, 2007:

Virginia Meister v. State of Indiana and the City of Union City, Indiana - "Virginia Meister appeals the trial court’s judgment forfeiting her truck, which was seized after her son, John Wymer, drove her truck, was arrested for driving while suspended, and had methamphetamine in the truck." Affirmed.

The case was denied transfer 5-0 by our Supreme Court on Nov. 9, 2007. The next, and final, entry on the Clerk's docket is:

3/13/08 ****RECEIVED 03/19/08: LETTER FROM U.S. SUPREME COURT (1)
*PETITION FOR WRIT OF CERTIORARI WAS FILED ON JAN. 7, 2008 & PLACED ON THE DOCKET MARCH 13, 2008 AS NO. 07-1167. MS

Yesterday the ILB posted this entry about the Gant decision, headed "U.S. Supreme Court limits police searches; Southern Indiana prosecutors believe effects of decision will be minimal." Here is the April 21st ILB entry on the SCOTUS decision that day in Arizona v. Gant.

Posted by Marcia Oddi on May 4, 2009 02:07 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 1, 2009

Here is the Clerk's transfer list for the week ending May 1, 2009. It is three pages long.

_________

Transfer lists have new feature. The "Denied/Granted" column, beginning in March 2009, includes the votes of the justices.

Search all the Transfer Lists: A new ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions.

Over five years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on May 4, 2009 02:00 PM
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (4):

In Kevin S. Varner v. Indiana Parole Board, a 19-page opinion in suit brought by a pro se litigant, Judge Robb writes:

Kevin Varner, an inmate at Plainfield Correctional Facility, filed a pro se action for mandate requiring the Indiana Parole Board (the “Board”) to determine his parole eligibility based on a vote of all five Board members. The trial court summarily dismissed that action, either for lack of subject matter jurisdiction or pursuant to Indiana Code section 34-58-1-2(a), a statute requiring trial courts to prescreen the legal sufficiency of claims filed by pro se prisoners such as Varner. On appeal, Varner contends the trial court’s summary dismissal was improper because the relief he seeks – a five-member vote to determine his parole eligibility – is mandated by Indiana Code section 11-13-3-3(b).

For reasons stated below, we conclude the trial court’s summary dismissal was improper because it did not lack subject matter jurisdiction and because Varner’s mandate action states a claim upon which relief can be granted. We also elect to address Varner’s mandate action on its merits, concluding that because Indiana Code section 11-13-3-3(b) requires a five-member vote to determine his parole eligibility, he is entitled to the relief he seeks. Accordingly, we reverse the trial court and instruct it to enter judgment in favor of Varner and to grant him the relief he seeks. * * *

We note in closing that the State’s sole argument that the four-member vote is sufficient is based on the Board’s rules, specifically subsections (a)(3) and (4) of 220 Indiana Administrative Code 1.1-2-2. Those subsections state that “[t]hree (3) members of the board constitute a quorum,” 220 Ind. Admin. Code 1.1-2-2(a)(3), and that “[t]he board shall take no action upon any matter requiring a board action unless at least three (3) board members are in agreement on the action,” 220 Ind. Admin. Code 1.1-2-2(a)(4). However, we are aware of no proposition of law that permits an administrative agency to disregard a clear statutory obligation on the ground that its rules impose a lesser obligation. To the contrary, this court has repeatedly observed that an administrative rule may not trump a statute’s clear mandate. See Lee Alan Bryant Health Care Facilities, Inc. v. Hamilton, 788 N.E.2d 495, 500 (Ind. Ct.App. 2003) (“An agency, however, may not by its rules and regulations add to or detract from the law as enacted, nor may it by rule extend its powers beyond those conferred upon it by law. Any regulation that conflicts with statutory law is wholly invalid.” (citation omitted)), clarified on other grounds on reh’g, 793 N.E.2d 229; Potts v. Review Bd. of Ind. Employment Sec. Div., 438 N.E.2d 1012, 1015-16 (Ind. Ct. App. 1982) (“Boards cannot enlarge or vary, by the operation of such rules, the powers conferred upon them by the Legislature, or create a rule out of harmony with the statute. If the rules are in conflict with the state’s organic law, or antagonistic to the general law of the state or opposed to the fundamental principles of justice, or inconsistent with the powers confer[r]ed upon such boards, they are invalid.” (citations and quotation marks omitted, correction in original)). We therefore reject the State’s argument that the Board’s administrative rules control its voting obligations.

In Nunn Law Offices v. Peter H. Rosenthal, a 13-page opinion, Judge Bradford writes:

Appellant-Petitioner 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-Respondent 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 Indiana Trial Rule 52 and in basing its award upon quantum
meruit rather than upon Nunn's contingency fee agreement with Carpenter. We affirm.

E.D. v. State of Indiana - "The State did not provide evidence establishing whether the gun was in plain view, and there was no evidence to suggest that E.D. made incriminating statements regarding knowledge of the gun or that E.D. made furtive gestures. Accordingly, we reverse E.D.’s adjudication as a delinquent child for possession of a handgun without a license, a Class A misdemeanor if committed by an adult. Reversed. "

Keith Payton v. State of Indiana - "In summary, the delays chargeable to Payton totaled 136 days – 61 days for the delay from December 20 until February 19 to set a trial date, and 75 days for acquiescing in Andre‟s motion for continuance, which resulted in resetting the beginning of trial from July 11 to September 15. This means that, pursuant to Crim. R. 4(C) and (F), the State had 136 days after July 2, or until November 15, 2008, to bring Payton to trial. Inasmuch as trial was held on September 15-17, 2008, Payton was not denied his right to a speedy trial and the trial court did not err in denying his motion to dismiss on that basis. Judgment affirmed. "

NFP civil opinions today (2):

Term. of Parent-Child Rel. of D.B., et al; J.B. v. IDCS (NFP)

Daniel Hoagland, et al. v. Town of Clear Lake, Indiana, et al. (NFP) - Involves dispute between town and Hoagland re operation of a helicopter on the Hoaglands’ private property, which was located within the Town’s limits.

NFP criminal opinions today (5):

James Lomax v. State of Indiana (NFP)

Eric J. Hicks v. State of Indiana (NFP)

Bruce Todd Bowman v. State of Indiana (NFP)

Michael D. Burton v. State of Indiana (NFP)

Gary D. Wilson v. State of Indiana (NFP)

Posted by Marcia Oddi on May 4, 2009 12:36 PM
Posted to Ind. App.Ct. Decisions

Ind. Law - "Deputies hunt for sex offenders who hide out on Web"

A companion piece to the story Saturday in the Fort Wayne Journal Gazette, reported by Rebecca S. Green, headlined "Rulings affect sex offender state registry," is this lengthy story today by reporter Green, titled "Online, a game of cat, mouse: Deputies hunt for sex offenders who hide out on Web." Some quotes:

Under 2008 changes to the laws governing Indiana’s Sex and Violent Offender Registry, offenders are required to provide local law enforcement with their online identities – e-mail addresses, chat room IDs and any social networking site identities, such as Facebook and MySpace. And state law prohibits sex offenders convicted of child solicitation and attempted child solicitation from ever being on social networking sites.

But enforcing the ban can be extremely difficult because, unlike a physical address, online identities and online addresses can be assumed and changed quickly, without anyone knowing. Free Internet sites offer little or no checks on the identities of those creating e-mail accounts, making it possible to create dozens of accounts using a myriad of fake names or other identifiers.

“It’s not impossible to enforce it, but it makes it difficult because we first have to know that they have an e-mail address,” [Allen County Sheriff’s Department Detective Jeff] Shimkus said. “It’s almost like an honor system.”

He likens it to speeding – hard to enforce when you can’t have an officer on every road, in this case every stop on the information superhighway.

“It’s difficult to enforce because we don’t have the technology or the right,” Shimkus said, adding that police officers cannot search a sex offender’s computer merely to look for e-mail addresses.

Garza’s recent arrest makes him the first in Allen County charged with failing to register his online addresses, Shimkus said.

But the detective has four other cases on his desk demanding his attention, in spite of the difficulty in policing this aspect of the registry, some generated by tips. “The public’s out there watching,” he said.

Posted by Marcia Oddi on May 4, 2009 09:59 AM
Posted to Indiana Law

Environment - "Pollutants Scrubbed From Smokestacks Are Being Diverted Into Waterways"

Juliet Eilperin reports today in the Washington Post, in a story that begins:

Faced with new evidence that utilities across the country are dumping toxic sludge into waterways, the Environmental Protection Agency is moving to impose new restrictions on the level of contaminants power plants can discharge.

Plants in Florida, Pennsylvania and several other states have flushed wastewater with levels of selenium and other toxins that far exceed the EPA's freshwater and saltwater standards aimed at protecting aquatic life, according to data the agency has collected over the past few years. While selenium can be beneficial in tiny amounts, elevated levels damage not only fish but also birds and people who consume contaminated fish.

But the reason more selenium and metals such as arsenic are now entering U.S. waterways is because the federal government has pressed utilities to install pollution-control "scrubbing" technology that captures contaminants headed for smokestacks and stores them as coal ash or sludge. The EPA estimates that these two types of coal combustion residue -- often kept in outdoor pools or flushed into nearby rivers and streams -- amount to roughly 130,000 tons per year and will climb to an estimated 175,000 tons by 2015.

Posted by Marcia Oddi on May 4, 2009 09:36 AM
Posted to Environment

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/4/09):

• None currently scheduled.

Next week's oral arguments before the Supreme Court (week of 5/11/09):

Thursday, May 14th

• 9:00 AM - Cornelius Cooper v. State of Indiana - The Marion Superior Court revoked Cooper's probation, and several months later denied Cooper's motion to reconsider. In this appeal from the denial of the motion to reconsider, the Court of Appeals reversed and remanded, finding Cooper is entitled to a probation revocation hearing. Cooper v. State, 894 N.E.2d 993 (Ind. Ct. App. Oct. 6, 2008), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [See ILB summary of Oct. 6, 2008 COA opinion here, 2nd case.]

• 9:45 AM - Clay City Consol. Sch. Corp. v. Ronna Timberman - Ronna Timberman and John Pipes II filed a child wrongful death action against the Clay City Consolidated School Corporation after their thirteen-year-old child collapsed during basketball practice and died. A jury returned a verdict for the parents. The Court of Appeals reversed and remanded for a new trial. Clay City Consol. Sch. Corp. v. Timberman, 896 N.E.2d 1229 (Ind. Ct. App. Dec. 2, 2008), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [See ILB summary of Dec. 2, 2008 COA opinion here, 2nd case.]

• 10:30 AM - In re Termination of the Parent-Child Relationship of J.M. - The Allen County Department of Child Services filed a petition to involuntarily terminate the parental rights of J.M.'s mother and father, who at the time were both incarcerated. The court denied the petition to terminate parental rights. The Court of Appeals reversed. In Re Termination of the Parent-Child Relationship of J.M., 895 N.E.2d 1228 (Ind. Ct. App. 2008), vacated. Father petitioned for rehearing on grounds he recently was released from prison. The Court of Appeals denied rehearing. Id., Cause No. 02A05-0807-JV-416, unpublished order, (Ind. Ct. App. Jan. 6, 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [See ILB summary of Nov. 5, 2008 COA opinion here - 3rd case. Also, Nov. 7th press story here and Nov. 11th editorial here. Note: Both Appellees A.S. and A.M. were granted transfer.]

ALL Supreme Court oral arguments are videocast and accessible here, unless otherwise noted.

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This week's oral arguments before the Court of Appeals (week of 5/4/09):

Tuesday, May 5th:

• 1:30 PM - Eric Dowdell vs. City of Jeffersonville - Whether Jeffersonville can enforce an ordinance prohibiting all persons defined as sex offenders from ever having unrestricted access to their parks. The Scheduled Panel Members are: Chief Judge Baker, Judges May and Barnes. [Where: Court of Appeals Courtroom - Webcast (which will be accessible here)]

Wednesday, May 6th:

• 3:00 PM - U.S. Bank, NA vs. Integrity Land Title Corporation & Michael Davidson - During the course of a February 2006 real estate transaction, Integrity Land Title Corp. contracted with a third party to perform a title search, which failed to report the existence of a 1998 judgment lien against the title holder. Southern National Title Insurance Company issued a title insurance policy to the mortgage holder, which subsequently assigned the mortgage to U.S. Bank, NA. In August 2006, the judgment creditor filed a complaint to enforce and foreclose the judgment lien against the real estate. In February 2008, the trial court granted summary judgment in favor of the judgment creditor, leaving U.S. Bank's mortgage completely unsecured. In December 2007, U.S. Bank filed suit against Integrity and Southern National, which has since been liquidated, alleging contract and tort theories of liability. U.S. Bank and Integrity filed cross motions for summary judgment. On September 2, 2008, the trial court denied U.S. Bank's motion and granted Integrity's motion. On September 26, 2008, U.S. Bank filed a motion to correct error pursuant to Indiana Trial Rule 59 and a motion for relief from judgment pursuant to Indiana Trial Rule 60 based on newly discovered evidence of alleged misrepresentations made by Integrity's president. In support of its motions, U.S. Bank attached an affidavit from its counsel and a deposition of Integrity's president. Integrity filed a statement in opposition and a motion to strike the affidavit and the deposition. On October 20, 2008, the trial court denied U.S. Bank's motions and granted Integrity's motion to strike. On appeal, U.S. Bank challenges the trial court's granting of Integrity's motion to strike and its determination that Integrity owed no duty to U.S. Bank either in contract or in tort. The Scheduled Panel Members are: Judges Robb, May and Crone. [Where: Vienna Ballroom, Conrad Hotel, 50 W. Washington Street, Indianapolis]

Thursday, May 7th:

• 1:30 PM - Columbus Medical Services vs. Liberty Healthcare Corporation - Appellant, Columbus Medical Services, appeals the judgment entered in favor of Appellee, Liberty Healthcare Corporation, awarding Appellee attorney fees and costs. The Scheduled Panel Members are: Chief Judge Baker, Judges May and Crone. [Where: Court of Appeals Courtroom - Webcast (which will be accessible here)]

Friday, May 8th:

• 10:00 AM - Edward Rose of Indiana vs. Metropolitan Board of Zoning Appeals, et al - Edward Rose of Indiana, LLC filed a variance of development standards petition requesting a variance to legally establish an identification/informational pole sign that already existed on its property. The Metropolitan Board of Zoning Appeals denied the petition for failure to meet the burden of proof as to the three statutory criteria found in Indiana Code section 36-7-4-918.5(a). Edward Rose appealed the BZA's decision to the trial court, which held that Edward Rose had satisfied two of the three statutory criteria but had failed to prove the third. Edward Rose appeals the trial court's finding that it had failed to prove that strict application of the zoning ordinance would "result in practical difficulties in the use of the property." The Scheduled Panel Members are: Chief Judge Baker, Judges Bailey and Robb. [Where: Richardson Chapel, on the campus of Franklin College, 101 Branigan Boulevard, Franklin, Indiana,]

Next week's oral arguments before the Court of Appeals (week of 5/11/09):

Thursday, May 12th:

• 10:30 AM - Carlton Davis vs. State of Indiana - While Carlton Davis was out of town, local police received a call from a neighbor concerning a foul stench emanating from Davis's property as well as the health of the numerous dogs on the property. The responding officer walked the property and found what was later determined to be an animal carcass in the bed of a pickup truck on the property. He also found twelve dogs that appeared to be malnourished and chained outside without food or water. The officer called his superior, who in turn called the local police investigator specializing in animal abuse. When the investigator arrived, she walked the property and interviewed neighbors. She then used this information to obtain a warrant to seize the dogs and search the house, a red shed and a white building on the property. Evidence from this search was used in a jury trial that resulted in convictions against Davis for eight counts of Promoting Animal Fighting Contests, twelve counts of Cruelty to an Animal, Purchasing or Possessing an Animal for an Animal Fighting Contest, and Possession of Animal Fighting Paraphernalia. Davis argues on appeal that the trial court erred in admitting the evidence from the search because the search warrant was invalid for several reasons; one being that the investigator searched his property in violation of his Fourth Amendment rights. He also challenges the admission of other evidence based on Trial Rule 404(b), evidence of other crimes, wrongs or acts.. The Scheduled Panel Members are: Judges Bailey, Mathias and Barnes. [Where: Court of Appeals Courtroom - Webcast (which will be accessible here)]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

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NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on May 4, 2009 09:02 AM
Posted to Upcoming Oral Arguments

Ind. Courts - More on: Marion County reportedly suspends bench warrants for delinquent parents [Updated]

Following up on this ILB entry from Feb. 6th, Jon Murray of the Indianapolis Star today continues his reporting on this issue. The headline: "Warrants for deadbeat parents may return: Bill includes OK to issue them in child-support cases":

Warrants that threaten a stay in jail for deadbeat parents could be restored as an option in child support cases under a bill adopted by the state legislature.

Marion Superior Court judges drew protests from the prosecutor and some parents this year when they purged more than 4,100 noncriminal warrants, more than half issued against parents who had shirked child support payments. The judges questioned whether Indiana law permitted the common practice of issuing such warrants directly from the bench.

A provision tucked in an omnibus child-services bill would allow the practice for child support cases, spelling out a contempt process that includes bench warrants. It doesn't address such warrants in other situations, such as when witnesses ignore subpoenas to testify in court.

The bill won final approval from both chambers of the General Assembly on the last day of the session and awaits Gov. Mitch Daniels' signature; it would take effect July 1. * * *

Bench warrants show up in a statewide computer system alongside other arrest warrants, posing a larger threat to targets than other court orders. For those facing warrants, being stopped for speeding or running a red light could trigger their arrest.

[Marion County Prosecutor Carl] Brizzi and parents long frustrated with the child support enforcement system protested the Marion County court's action earlier this year [to purge the warrants]. Brizzi asked Indiana Attorney General Greg Zoeller for an advisory opinion, but Zoeller urged him to seek a solution through the legislature, said Helen Marchal, Brizzi's chief of staff.

The Indiana Prosecuting Attorneys Council lobbied the legislature for the fix. The measure wouldn't reinstate the purged warrants, but it would allow new ones.

Brizzi's office plans to work on a bill next year to address bench warrants for other situations, including missing witnesses.* * *

Presiding Judge Robert Altice said he would feel more comfortable if Indiana law addressed bench warrants more fully.

Murray's story includes a side-bar on how it would work:

Under the new rules passed by both houses of the legislature and awaiting the governor's signature, those who have fallen behind in child support payments could face a warrant for their arrest. A judge first would order a parent to attend a hearing to show why he or she shouldn't be held in contempt of court for violating a support order. If the parent doesn't show up, the judge could issue a bench warrant, setting an amount that would be paid to the clerk as a kind of bail and that could be applied toward child support.

What is this bill? It is SEA 365. A copy of the enrolled act is not yet available, but you can read the text here in the Conference Committee Report, on p. 12, SECTION 12.

[Updated at 5:30 PM] The Enrolled version of SB 365 is now available here. SECTION 12, which adds the new IC 31-16-12-6.5, begins on p. 10 of this PDF version.

Posted by Marcia Oddi on May 4, 2009 08:38 AM
Posted to Indiana Courts

Sunday, May 03, 2009

Courts - "U.S. Supreme Court limits police searches; Southern Indiana prosecutors believe effects of decision will be minimal"

The U.S. Supreme Court's April 21st decision in the case of Arizona v. Gant, limiting police vehicle searches (see ILB entry here), is the subject of a lengthy story today in the New Albany News & Tribune by Matt Thacker. Some quotes:

Less than two weeks ago, the U.S. Supreme Court issued a landmark ruling that will limit when police officers may search a vehicle without first securing a warrant.

While the decision has received a great deal of media attention nationally, local prosecutors believe the decision may not have as much of an impact as it appears.

“The way it stands right now, I don’t think [the ruling] will have a substantial effect,” Clark County Prosecutor Steve Stewart said.

In Arizona v. Gant, Rodney Joseph Gant was arrested for driving on a suspended license. He was handcuffed and locked in a patrol car while officers searched the entire passenger compartment of the car and found cocaine in a jacket pocket, which was in the back seat of his vehicle.

The trial court denied his motion to suppress the evidence, and on April 21, the Supreme Court ruled in a 5-4 decision that the evidence should not have been allowed.

“Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated,” Justice John Paul Stevens wrote in the majority opinion. Prosecutors say the Supreme Court left enough room that police will still be able to find ways to search vehicles.

“It will not have as big of an impact as one might believe,” Floyd County Prosecutor Keith Henderson said.

He said that, prior to the ruling, officers were allowed to search vehicles under the justification of protecting the safety of the officer. However, when a driver is cuffed and locked in a police vehicle, it is difficult to argue that the officer is in danger.

“If the person is secured, that justification no longer exists,” Henderson said. “I think the court is saying, ‘Let’s stop the charade.’”

Officers can still search anywhere that is within one arm’s length of where the arrested person was sitting in the vehicle. Police also will still be allowed to do an inventory search of the vehicle whenever it is impounded, and police may search if probable cause exists that drugs are in the vehicle.

A new wrinkle added under the Supreme Court’s ruling is that a vehicle may be searched if police officers have reason to believe it contains evidence related to the offense the person is being arrested for.

In Arizona v. Gant, the court ruled that police officers had no reason to believe they could find evidence related to driving with a suspended license. Stewart said that if someone is arrested for a drug offense, officers could still have good reason to search the vehicle for drugs.

Henderson said he does not oppose the decision. He said the most important thing will be for police officers to be able to explain the reason they searched a vehicle. “With law enforcement articulating their reasons, this case will not have a remarkable effect,” Henderson said.

There are still many areas left open to interpretation. One example Henderson gave is that if an officer arrests one person, but there are others in the vehicle not being arrested, the officer might have good reason to search the vehicle because his safety could be at risk by those not being arrested.

He said police officers also might be able to detain the person prior to handcuffing them, but then the officer might be in real danger.

“I’m always in favor of black-and-white rules,” Stewart said. “It’s basically been a black-and-white rule that the entire passenger compartment of the vehicle can be searched. “Any time you throw in the word reasonable, it’s a matter of discretion.”

The Evening News and The Tribune contacted several local law enforcement agencies, but most were hesitant to speak on the record about the ruling. There is still a lot of confusion about what the ruling means for them.

Sgt. Jerry Goodin, with the Indiana State Police, said his agency had not been briefed on the new ruling. Sellersburg Police Chief Russ Whelan said he had received a notice about the ruling, but had not studied it yet. He did not expect it would change much for his officers.

“We ask for consent. It’s not one of them that we push a lot if they don’t give consent,” Whelan said. “Like it or not, we try to comply with [court decisions].”

Floyd County Sheriff Darrell Mills is more uneasy about how it may affect his officers. “We feel like it hampers us,” Mills said. “It makes it difficult for law enforcement.”

Henderson said he will provide some information about the ruling in the next bulletin he sends out to police. He plans to have a training session within the next couple of months in which he will go over all the changes in laws.

A local defense lawyer is praising the decision. “I think it’s an important case that reaffirms the government does not have free reign to search anyone at any time and that there are constitutional limits,” defense attorney William Gray said.

It is an issue that all expect will be tested many times in the court system.

“The state or trial courts can interpret [the ruling] any way they want,” Stewart said. “In addition, they may consider the same set of facts under the Indiana Constitution. The U.S. Supreme Court sets the lowest parameters of the state’s rights.”

Posted by Marcia Oddi on May 3, 2009 12:32 PM
Posted to Courts in general

Ind. Courts - "Jury still out on Lake County judge's request to move into old courthouse"

Kathleen Quilligan reports today in the NWI Times in a story that begins:

CROWN POINT | Although a Lake County judge is still trying to get his court moved into the Old Lake County Courthouse on the square, the nonprofit that runs the building believes that wish isn't a practical possibility.

Lake Circuit Court Judge Lorenzo Arredondo has hoped to move his court into the old courthouse for the past 10 years. Recently, the idea was rejuvenated when the Lake Court House Foundation Inc., the nonprofit that runs the courthouse, announced it was having some financial difficulty.

Posted by Marcia Oddi on May 3, 2009 12:27 PM
Posted to Indiana Courts

Ind. Law - "No law against abortion protest photos: Some residents upset by graphic images on trucks, banners"

Sue Lowe and Margaret Fosmoe report in the South Bend Tribune in a lengthy story:

The images are part of protests over President Barack Obama's scheduled appearance May 17 at the University of Notre Dame commencement. The truck and airplane banner displays are staged by the Center for Bio-Ethical Reform, a California-based organization.

The graphic images on trucks and banners will continue until commencement, said Mark Harrington, director of the group's Midwest office. A pro-life radio host who lives in Columbus, Ohio, Harrington and 10 to 15 volunteers are living in South Bend until commencement in order to direct the group's publicity campaign.

The group doesn't intentionally display the graphic abortion photos for children to see, but sometimes that can't be avoided, Harrington said Saturday. The group tries to avoid driving the trucks by elementary schools and day care centers, he said.

"There is no way to completely eliminate children from seeing the banners. We decided long ago that is an unfortunate tradeoff," he said.

The group displays the photos because the mainstream news media are part of a cover-up by refusing to show the results of abortion, Harrington said.

"Social reformers have always used graphic images to dramatize injustice," he said. "We are trying to get people to hate abortion. If they hate us, too, that's a tradeoff we're willing to make." * * *

Troy Gebhardt, a South Bend resident, said he thinks the large pictures are "absolutely appalling." Gebhardt said he had contacted the American Civil Liberties Union because he feels the pictures are a violation of his civil rights, but he had not heard back from that organization.

Gebhardt said that if the pictures appeared on television, he could change the channel. If they were in a book or magazine, he could turn the page. Even if they were on display in one place in town, he could avoid that place. But, he said, because they are on the sides of trucks in traffic, he can't avoid them.

"What do I do — run a red light?" he asked.

"If somebody has something to say I try to listen," he said. "If you horrify me or anger me, I won't listen." He said his 13-year-old niece saw the pictures and "was very much upset." * * *

Abortion protesters led by activist Randall Terry also have been displaying large pictures of aborted babies during rallies near Notre Dame's main gate. Terry, who was arrested for trespassing Friday on campus, said his group, StopObamaNotreDame.com, will continue to protest and conduct additional actions that are "deliberately prophetic."

Terry said he and Harrington aren't jointly planning their protest efforts, but they know each other and are friends. "I led Mark Harrington into the pro-life movement 15 years ago," Terry said.

South Bend Police Capt. Phil Trent said the department has taken "dozens" of calls from people upset about the images. He said police are telling callers that no law prevents the displays, which are protected by freedom of speech.

Posted by Marcia Oddi on May 3, 2009 12:18 PM
Posted to Indiana Law

Law - "Your government in secret: Weak Illinois laws let public officials stonewall citizens looking for information"

The effort this year to put some teeth in the Indiana public records law failed. See this April 8th ILB entry for details.

The Chicago Tribune has been publishing a multi-part examination of the ineffectiveness of the Illinois state laws relating to public access to records. Much of this echos problems also heard in Indiana. Some quotes:

In Illinois, getting a public record is a frustrating labyrinth of excuses, delays and denials.

Public servants have all the tools they need to keep a grip on information that rightly belongs to the people, whether it's a police report, a principal's disciplinary file or a spending plan, a Tribune examination has found.

Since 2005, more than a thousand citizens have filed complaints about public officials in Illinois who refused requests for public records, most often by completely ignoring them.

A review of those complaints, along with dozens of interviews, reveals a culture of secrecy shrouding the machinery of your government. Public meetings are often theater, where votes are pro forma endorsements of decisions forged in e-mails and memos you will never be allowed to see.

Government records routinely turned over at the front counters in many other states are routinely denied here -- the result of a notoriously weak open records law, an unsympathetic political culture and an attitude of disdain among many public servants who consider documents their own. * * *

The state's Freedom of Information Act has more pages devoted to what records you can't get than what you can, from public officials' personnel files to memos in which they express opinions. Critics of the law, including the Chicago Tribune, have called for a complete overhaul to eliminate broad exemptions commonly used by government to deny records.

Proposals to strengthen the law gained some steam at the Statehouse this year after the corruption arrest of former Gov. Rod Blagojevich. But they focus less on eliminating loopholes and more on strengthening enforcement of the current law.

One of the most common exemptions is for "preliminary drafts," cited by officials to withhold any number of documents written before government makes a decision -- which is exactly when the records are most needed by those who might question it. * * *

Withholding drafts and other documents used in decision-making may be common practice in Illinois, but it's puzzling to officials from other states.

"Wow, that pretty much encompasses everything government does," said Laurie Beyer-Kropuenske, Minnesota's top public records official. "I don't get it. How is the public supposed to evaluate the performance of its government if all those records are secret?"

The public needs to see drafts more than almost any other document, said Pat Gleason, a cabinet aide and open-records counsel to Florida Gov. Charlie Crist.

"They need to know what a government body did in order to reach a decision, what kind of other ideas did they explore and reject," Gleason said. "All those records are public in Florida, and it hasn't yet brought government to a standstill." * * *

'Privacy' excuse just a fig leaf? Another broad exception commonly cited is for anything considered a "clearly unwarranted invasion of personal privacy." That's the exemption school officials used when irate parents at Clinton Junior High School demanded answers after their 8th graders were forced to kneel during a lecture about discipline. * * *

The privacy exemption is broadly used in Illinois to protect everything from performance evaluations and disciplinary cases to résumés and employment contracts of public servants. It can also be used to deny 911 tapes and redact police reports.

But when public officials don't make such records available, the secrecy sometimes breeds suspicion.

The story is accompanied by this striking graphic, captioned "Thom Rae received this heavily redacted memo after he filed a Freedom of Information Act request. The document was repeatedly referred to in public meetings about the renovation of an old movie theater in downtown La Grange."

Posted by Marcia Oddi on May 3, 2009 11:46 AM
Posted to General Law Related

Courts - "Obama's Supreme Court pick may have Chicago link"

A story by John McCormick and Jeff Coen in the Chicago Tribune begins:

Ever since Barack Obama's election as president, there has been anticipation among scholars at the University of Chicago's Law School that one of their own could be headed to the U.S. Supreme Court bench in the next few years.

That anticipation was heightened late last week with news that Obama, who taught constitutional law at the school from 1992 to 2004, soon will be making his first Supreme Court pick.

Almost every short list of possible nominees to succeed Justice David Souter includes three individuals with strong ties to the Hyde Park law school: U.S. Appeals Court Judge Diane Wood, Obama regulatory czar Cass Sunstein and U.S. Solicitor General Elena Kagan.

Even if Obama does not pick one of the past or present faculty members this year, feelings run strong on campus that he will before he leaves the White House.

From the NY Times today, a front-page story about Barack Obama as a law prof at the U of Chicago, headed "As a Professor, Obama Held Pragmatic Views on Court ." The story by Jodi Cantor begins:

Many American presidents have been lawyers, but almost none have come to office with Barack Obama’s knowledge of the Supreme Court. Before he was 30, he was editing articles by eminent legal scholars on the court’s decisions. Later, as a law professor, he led students through landmark cases from Plessy v. Ferguson to Bush v. Gore. (He sometimes shared his own copies, marked with emphatic underlines and notes in bold, all-caps script.)

Now Mr. Obama is preparing to select his first Supreme Court nominee to replace retiring Justice David H. Souter. In interviews, former colleagues and students say they have a fairly strong sense of the kind of justice he will favor: not a larger-than-life liberal to counter the conservative pyrotechnics of Justice Antonin Scalia, but a careful pragmatist with a limited view of the role of courts.

Posted by Marcia Oddi on May 3, 2009 10:47 AM
Posted to Courts in general

Ind. Decisions - More on "Court overturns sex registry conviction"

The two Supreme Court decisions (see ILB summary here) issued April 30th were the subject of a story Saturday in the Fort Wayne Journal Gazette, reported by Rebecca S. Green. The story is headlined "Rulings affect sex offender state registry: Court decision might remove names":

A pair of rulings by the Indiana Supreme Court might bring dramatic changes to who is listed on Indiana’s Sex and Violent Offender Registry.

One ruling deals with sex offenders who committed their crimes and were sentenced before the state’s sex offender registry laws existed. The other ruling, involving an Allen County case, deals with whether sex offenders’ listings on the registry are subject to further changes to the registry.

There are 753 people on Allen County’s sex and violent offender registry.

In the first ruling, the state’s highest court overturned Richard P. Wallace’s 2000 conviction for failing to register as a sex offender.

Wallace was convicted of Class C felony child molesting in 1989, five years before Indiana passed its version of the Sex Offender Registration Act, known as Zachary’s Law.

In 2001, the state legislature amended the law to include all people convicted of certain sex offenses regardless of their conviction date. And in 2003, Wallace’s ex-wife told authorities that Wallace never registered as a sex offender.

Wallace was convicted, but he appealed, arguing in part that the changes to the registry violated the state’s Constitution by creating an “after the fact” punishment.

And the state’s high court agreed.

“Wallace was charged, convicted and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted,” Justice Robert D. Rucker wrote.

The changes to the act violated the state’s Constitution by imposing burdens on Wallace that added punishment beyond what could have been imposed when his crime was committed, Rucker wrote.

In the second case, the court upheld a ruling by Allen Superior Court Judge Fran Gull involving Allen County resident Todd Jensen.

Gull had ruled that Jensen must register for life as a sexually violent predator even though the provision in the law that created that designation did not exist when he was convicted.

Jensen qualified as a “sexually violent predator” because of his conviction for vicarious sexual gratification, one of the crimes included under the designation by the state legislature in a 2006 change to the registry law.

He objected to the requirement and asked Gull to consider his case. She ruled he was a sexually violent predator and as such was subject to the changes in the registry. The 2006 changes contained no limitation on the date of conviction, according to court documents.

Jensen appealed, using in part arguments similar to the ones Wallace used, that the requirement created a punishment after the fact. In a split decision, the appellate court agreed and sent the case back to Gull to limit Jensen’s registration requirement to 10 years.

But in a 3-2 decision, the state Supreme Court upheld Gull’s ruling that Jensen should have to register as a sexually violent predator for life. * * *

For now, those tasked with monitoring the registry will wait to see what effect the rulings will have on how the registry is handled. But they are sure it will lead to some changes.

“It’s going to create a lot of work in the next few weeks because we’ll have to go through each file and see what box these offenders are going to fit into,” said Allen County Cpl. Jeff Shimkus, who handles the registry for Allen County.

He will wait to see how the Indiana Department of Correction interprets the ruling and wants to put it into practice. Shimkus also expects a meeting with the Allen County Prosecutor’s Office.

“As police officers, we’re the gatekeepers of the criminal justice system,” Shimkus said. “We enforce the law the way it’s written.”

The Indiana Department of Correction will comply with the changes, but officials there are still trying to figure out what it all means.

“We don’t know yet how many offenders this will affect,” said Doug Garrison, DOC spokesman. “If it means taking offenders off the registry, then that’s what we’ll do.”

Posted by Marcia Oddi on May 3, 2009 10:40 AM
Posted to Ind. Sup.Ct. Decisions

Saturday, May 02, 2009

Ind. Courts - More on yesterday's post on the St. Joe judges selection bill

In this post yesterday I suggested:

Rather than a new, unnecessary sixth panel of the Court of Appeals, if we are going to be adding judges with no demonstrated workload need, wouldn't it be preferable to add two new justices to the Supreme Court of Indiana?

I quoted from an article calling for more women on the U.S. Supreme Court and said the same rationale for gender diversity applied with respect to Indiana's high court.

IU LAW prof Joel Schumm sent this note:

Great post--and great point. Every class I teach I find a way to pull up a picture of the Indiana Supreme Court. "What jumps out at you about this picture?" "It's all men," they always respond.

I once heard Justice Selby speak about sometimes talking with school children visiting the courtroom. They'd look around the walls at the pictures of the 100+ justices and ask "where are the girls?" The kids get it; I hope the adults do, too.

Another reader wrote this morning, pointing me to the front-page story by Charlie Savage today in the NY Times, headlined "Wider World of Choices to Fill Souter’s Vacancy." Some quotes:

When President Ronald Reagan decided to appoint a woman to the Supreme Court in 1981, he had to turn to Sandra Day O’Connor, an obscure state judge.

When President Bill Clinton decided to add a second woman to the court, he confronted a world in which women were just beginning to climb the ranks of big law firms and ranking female judges, like Ruth Bader Ginsburg, were still scarce.

Today, as President Obama moves to pick his first Supreme Court nominee as a successor to retiring Justice David H. Souter — a choice many political observers expect will be a woman — he finds a vastly altered scene, with women holding dozens of seats on the nation’s appellate courts, occupying dean’s offices at prestigious law schools, and serving in some of the highest political offices in the nation.

“The legal landscape has been totally transformed,” said Deborah Rhode, a Stanford University law professor whose research includes gender issues related to the legal profession. “Obama has a lot of possibilities.”

More than 200 women are federal district and appeals court judges, representing about a quarter of each bench, according to statistics compiled in 2008 by the American Bar Association. More than a hundred women are judges on top state courts, and a third of state chief justices are women. * * *

Yet despite the rising prominence of women in the legal profession and the political world, the Supreme Court remains something of a male-dominated throwback.

Again, the same rationale applies. While the legal landscape (including our own Court of Appeals where 5 of the 15 judges are now women) has been transformed over the past dozen years, our Supreme Court is composed of five men. And it always has been except for the brief interlude of Justice Myra Selby, who was appointed by Governor Bayh in 1995 and served until 1999. As justices in Indiana may serve until they reach 75, it seems unlikely that two or three slots will open up in the foreseeable future.

So the only answer would be to add more seats, changing the Supreme Court from 5 members to 7 members. This would not require an amendment to the Indiana Constitution, the expansion of the Court may be readily accomplished by statute.

Arguments for this answer have in the past been rebuffed with statements that there was not enough workload to justify expanding the Supreme Court by two.

But that reasoning falls with the ready passage this month by both houses of the General Assembly of HEA 1491, which would add three new judges to the Court of Appeals with absolutely no showing of need.

______________________

For more, see this ILB entry from October 6, 2007, headed "Few women in Indiana are appointed to high judiciary posts."

From August 29, 2007, this ILB entry began: "Indiana has the only top court in the nation with no women members, and many in the State of Idaho are doing their best to keep Idaho from becoming the second such state."

For an article from earlier this month, the Knoxville News had a report by Georgiana Vines on April 19th headlined "It's a woman's world on the Tennessee Supreme Court ." Three of the five members are now women.

And back to yesterday's point about the male U.S. Supreme Court justices considering strip searches of 13-year-old girls as nothing out of the ordinary, a story today underscores the differing viewpoints between the genders. The headline to the story in Delaware Online by Maureen Milford is "Top justice sent racy video to colleagues: Myron Steele used state e-mail to share video with 38 male friends, lawyers." Some quotes:

Delaware Supreme Court Chief Justice Myron T. Steele, the national face of Delaware's powerful and highly respected courts, used his state e-mail account Monday to send a sexually suggestive video to 38 men. * * *

Steele said Wednesday that he viewed the e-mail video attachment as a harmless joke that would not offend anyone.

"I don't think there was anything offensive to women," Steele said. "I forwarded it to people I thought would find it amusing." * * *

Despite the fact it was on his state e-mail account, Steele said he didn't view it as a public e-mail because he didn't expect it to be "broadcast widely."

"I apologize to anyone who might have seen it who might be offended," Steele said. "All the ones who know me know there's nothing behind this. They know my character and history and that this was just a frivolous joke. Probably, in retrospect, I wouldn't send it again." * * *

Susan Koniak, a professor of law at Boston University School of Law and co-author of "The Law and Ethics of Lawyering" legal casebook, said Steele should resign.

"I can't tell you how offended I was," said Koniak, who agreed to view a copy of the video for The News Journal. "Don't think anything about how wonderful a judge he is makes up for doing this. It undermines the judiciary completely."

Describing the video as "soft porn," Koniak said most people will be reluctant to comment on the incident because Steele is such an influential jurist. Delaware's Supreme Court often hears appeals on matters related to the nation's biggest corporations, including the 2005 high-profile shareholder suit involving executive compensation at The Walt Disney Co.

Interestingly, a former IU law prof finds an additional issue:

William Hodes, a professor emeritus of law at Indiana University School of Law, who helped draft the recent American Bar Association revision of the code of judicial conduct, said "the chief justice ought to have a little bit more self-control, certainly, because it was on his work account."

Hodes said the incident raises the issue of Steele fraternizing with lawyers who go before him. Somebody who had a recent, pending or impending matter before the court could file an ethics complaint, he said.

In Delaware, complaints concerning a judge are filed with the state's Court on the Judiciary.

"Who were these lawyers and why were they selected? Obviously, they're buddies," Hodes said.

Steele said most of the e-mail recipients were former clerks. Other recipients included lawyers, another Delaware judge and a Delaware businessman.

The story includes a link to the video.

Posted by Marcia Oddi on May 2, 2009 05:00 PM
Posted to Indiana Courts

Ind. Decisions - Another NFP COA decision reclassified

The ILB earlier this year began keeping an eye on NFP opinions reclassified as "for publication" by the Court of Appeals, via Ind. Appellate Rule 65(A).

Under 65(B), Time to File Motion to Publish, "within 30 days of the entry of the decision, a party may move the Court to publish any not-for-publication memorandum decision which meets the criteria for publication."

Under 65(E) Certification of Opinion or NFP Decision, "The Clerk shall certify the opinion or memorandum decision to the trial court or Administrative Agency only after the time for all Petitions for Rehearing, Transfer, or Review has expired, unless all the parties request earlier certification. If the Supreme Court grants transfer or review, the Clerk shall not certify any opinion or memorandum decision until final disposition by the Supreme Court."

The first one the ILB blogged about was Garry Coleman v. Review Board, where the order to publish was issued April 16th. The order appears to have been issued on the Court's own initiative, rather than in response to a party's motion. This case concerned email usage by a state employee. The opinion had been certified March 23rd.

The next was Madison Cty. v. Town of Ingalls, dealing with annexation, where the FP court order was issued April 24th, pursuant to a party's motion to publish. A transfer petition is pending.

The latest is Curtis v. State, where the court affirmed a denial of post-conviction relief. A NFP was issued Feb. 25 and ordered FP on May 1st. A motion to publish was filed March 2nd (this is the first of these three cases where there is such a docket entry). The Supreme Court denied transfer on April 30th. The COA docket entry from May 1st reads:

• HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS FOLLOWS:
  THE APPELLEE'S VERIFIED MOTION TO PUBLISH MEMORANDUM DECISION IS GRANTED, AND THIS COURT'S OPINION HANDED DOWN IN THIS CAUSE ON FEBRUARY 25, 2009, MARKED MEMORANDUM DECISION, NOT FOR PUBLICATION IS NOW ORDERED PUBLISHED.
  FOR THE COURT, JOHN G. BAKER, CHIEF JUDGE ROBB, CRONE, AND BARNED, J.J., CONCUR. KM

Posted by Marcia Oddi on May 2, 2009 11:22 AM
Posted to Ind. App.Ct. Decisions

Friday, May 01, 2009

Courts - Nearly simultaneous, conflicting Circuit Court NLRB opinions issued this afternoon

And one of them is from the 7th Circuit, affecting an Indiana company. An AP story by Nedra Pickler begins:

WASHINGTON (AP) — Decisions made during the past year by the leading federal agency that referees labor-management disputes fell under a legal cloud Friday with conflicting federal appeals court rulings.

In rulings rendered virtually simultaneously, the U.S. Court of Appeals in Washington held that a decision handed down last year by the National Labor Relations Board is invalid because it was made by just two members while a federal appellate court Chicago took the opposite position. It held within the same hour that a vote by the two members was appropriate and binding.

The 7th Circuit opinion is New Process Steel, L v. NLRB. New Process is located in Butler, Indiana.

Posted by Marcia Oddi on May 1, 2009 04:33 PM
Posted to Courts in general

Ind. Courts - More on: Conferees agreed to version of St. Joe judges selection bill; my thoughts

Updating this ILB entry from Tuesday, HEA 1491 is now ready for submission to the Governor.

The new panel of three Court of Appeals judges created by the bill is not to begin operating until July 1, 2011. Thus it will not impact this biennial budget. The LSA projections are that the impact of the new panel in the next biennium will be nearly $4.5 million.

A check of the Governor's 2009 Bill Watch shows that, as of this writing, Gov. Daniels has not yet received HEA 1491. When he does receive the bill, he may sign it, veto it, or allow it to become law without his signature. If he vetoes the bill, the General Assembly, when it next meets, which may be soon, may override it by a simple majority vote in each house.

The original House bill proposed to make all St. Joesph County judges elective. Some are now appointed via a merit system. Lake is the only other county where all judges are not elected. Many have thought of these two counties as the models for future efforts to make all county judges merit.

The Senate added the provision to create a 6th Court of Appeals panel. The House agreed to the Senate change.

There has been no demonstrated need for a new multi-million dollar appellate panel. Some have said this addition is needed so that Gov. Daniels can add more Republicans to the Court of Appeals, which currently has 13 members appointed by Democratic governors, and 2 members appointed by Gov. Daniels, a Republican.

My thoughts. Veto the bill, Gov. Daniels. Rather than a new, unnecessary sixth panel of the Court of Appeals, if we are going to be adding judges with no demonstrated workload need, wouldn't it be preferable to add two new justices to the Supreme Court of Indiana?

The Supreme Court consists of five men, none of whom appear likely to step down in the foreseeable future. If the Supreme Court were expanded to seven members, you, Gov. Daniels would be in a position to select two women to serve on the Court. The results would be huge, and the fiscal impact would be less.

BTW, Gov. Daniels, a reader has sent me this article by Dalia Lithwick of Slate Magazine on why we need more than one woman on the U.S. Supreme Court. The same rationale follows for why we need gender diversity on our state Supreme Court.

Her article, posted April 21st, includes:

When constitutional historians sit down someday to compile the definitive Supreme Court Concordance of Not Getting It, the entry directly next to Lilly Ledbetter ("Court fails utterly to understand realities of gender pay discrimination") will be Savana Redding ("Court compares strip searches of 13-year-old girls to American Pie-style locker-room hijinks"). After today's argument, it's plain the court will overturn a 9th Circuit Court of Appeals opinion finding a school's decision to strip-search a 13-year-old girl unconstitutional. That the school in question was looking for a prescription pill with the mind-altering force of a pair of Advil—and couldn't be bothered to call the child's mother first—hardly matters. * * *

Nobody but Ginsburg seems to comprehend that the only locker rooms in which teenage girls strut around, bored but fabulous in their underwear, are to be found in porno movies. For the rest of us, the middle-school locker room was a place for hastily removing our bras without taking off our T-shirts.

Posted by Marcia Oddi on May 1, 2009 01:18 PM
Posted to Indiana Courts

Ind. Decisions - "Court overturns sex registry conviction"

Yesterday's two Supreme Court decisions (see ILB summary here) are the subject of an AP story today in the Chicago Tribune:

The Indiana Supreme Court on Thursday overturned a man's conviction for not registering as a sex offender because he had already completed a sentence for child molesting before the state's Sex Offender Registration Act was enacted.

In a unanimous ruling, the court said the subsequent conviction of Richard P. Wallace two years ago violated the state constitution's prohibition of retroactive laws.

Applying the sex registration requirement to Wallace, who completed his probation two years before the law was enacted, would impose "burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed," Justice Robert Rucker wrote in an 18-page opinion. * * *

In a separate ruling, the Supreme Court affirmed the conviction of an Allen County man who in 2000 pleaded guilty to one count of vicarious sexual gratification and one count of child molesting and spent three years in prison and another three on probation. He was also required under a separate state law at the time to register as a sex offender for 10 years.

But in 2006, the Legislature amended the law to require lifetime registration as a "sexually violent predator."

Jensen appealed the conviction in Allen Superior Court, arguing the law was retroactive and that his original plea agreement was made invalid because he wasn't advised he would have to register for life.

The Indiana Court of Appeals overturned the conviction, but in Thursday's 3-2 ruling the Supreme Court rejected his arguments, saying Jensen "cites no evidence of a punitive intent on the part of the Legislature. ... Thus we presume that the Legislature's intent was civil and regulatory, and not criminal or punitive in relation to the claim that the act is an ex post facto violation."

Posted by Marcia Oddi on May 1, 2009 01:11 PM
Posted to Ind. Sup.Ct. Decisions

Law - "Academic Innovation Hits the Legal Web"

Robert J. Ambrogi of Law Technology News begins his report:

Recent projects launched online with the support of law schools show that there is no waning of clever and useful ideas coming from law students and faculty. Here are some examples:

Posted by Marcia Oddi on May 1, 2009 01:08 PM
Posted to General Law Related

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

For publication opinions today (0):

NFP civil opinions today (1):

Roy Young, Jr. v. Teresa D. Baynes (NFP) - "Based on the foregoing, we conclude that Father has demonstrated prima facie error on the part of the trial court, first by abusing its discretion when imputing $400 per week of income to him, and then by declaring R.Y. to be emancipated."

NFP criminal opinions today (3):

Melvin White v. State of Indiana (NFP)

Tommie J. Cobbins v. State of Indiana (NFP)

LaJae Jacobs v. State of Indiana (NFP)

Posted by Marcia Oddi on May 1, 2009 01:01 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana decision today from 7th Circuit

In Abad et al. v. Bayer Corp.(ND Ill.) / Pastor v. Bridgestone/Firestone (SD Ind., Judge Barker), a 19-page opinion, Judge Posner writes:

We have consolidated for decision two appeals (Abad and Pastor) that present similar issues concerning the doctrine of forum non conveniens (“inappropriate forum”). The doctrine allows a court to dismiss a suit if there are strong reasons for believing it should be litigated in the courts of another, normally a foreign, jurisdiction. In both our cases the plaintiffs are Argentine citizens, resident in Argentina, who filed products-liability suits in federal district courts against American manufacturers under the diversity (technically, the alienage, 28 U.S.C. § 1332(d)(2)(B)) jurisdiction for injuries sustained in Argentina. In each case the district judge, on the defendants’ motion, after considerable pretrial discovery, invoked forum non conveniens and dismissed the case in favor of the courts of Argentina. The plaintiffs have appealed; dismissal of a case on grounds of forum non conveniens is deemed a final judgment appealable under 28 U.S.C. § 1291 even though it does not end the litigation. [cites omitted] * * *

[Abad] When the decision of a case is uncertain because the orthodox sources of law do not provide adequate guidance (apparently no code provision or judicial decision in Argentina accepts or rejects marketshare liability), the court asked to decide must make law, in this case Argentine law; and an Argentine court is the more competent maker of Argentine law—more competent in the sense of more legitimate, but also more competent in the sense of being better able to decide the case correctly because more at home in the relevant legal tradition than an American court would be. * * *

[Pastor] In support of the district judge’s order we note that the case will not remain in Indianapolis in any event; it will go to Florida for trial if it does not go to Argentina. Proceedings in two courts would not be avoided even if we reversed the order dismissing the suit. In neither case did the judge abuse his or her discre- tion, and therefore the judgments are AFFIRMED.

Posted by Marcia Oddi on May 1, 2009 12:48 PM
Posted to Ind. (7th Cir.) Decisions

Courts - "Justice David H. Souter plans to retire at the end of the term in June"

So report Peter Baker and Jeff Zeleny in this story today in the NY Times.

The Washington Post today has an exhaustive look at potential Obama nominees, to accompany this story by Robert Barnes, headed "Souter Reportedly Planning to Retire From High Court: Justice Might Stay Until Nominee Confirmed."

Tom Goldstein of SCOTUSBlog has this long, informed look at the situation, headed "Justice Souter’s Retirement and Where We Go from Here."

For an uninformed view, see this column by Marc Ambinder of The Atlantic, headed "Souter Said To Be Retiring; Who Would Replace Him?." He writes:

[President Obama's] first judicial appointment may tell us about his newest decision: Obama nominated Indiana Supreme Court Chief Justice David Hamilton to the 7th circuit; the White House portrayed Hamilton as a jurist respected by Republicans and Democrats alike, although Republicans in Washington were skeptical. [ILB emphasis]

Posted by Marcia Oddi on May 1, 2009 08:24 AM
Posted to Courts in general

Ind. Gov't. - Editorials chastise General Assembly

Nearly all the major Indiana newspapers today have editorials chastising the General Assembly for its sorry performance over the past four months. Here is the editorial in today's Evansville Courier & Press. It concludes:

Other than the cost, there is something else bothersome about lawmakers failing to finish on time. Remember the early public interest in the proposed Kernan-Shepard local government reforms, which included the elimination of township government in Indiana?

That necessary reform appeared to have momentum going into the session, but ran into a wall when Bauer said the House had more important bills to work on. What bills? Obviously, it wasn't the budget, because it didn't get done.

And remember the bill that would have allowed penalties against public officials and employees who failed to provide public access to government records and meetings?

That bill faltered after Rep. John Bartlett, D-Indianapolis, chairman of the House Government and Regulatory Reform Committee, said his committee ran out of time for it because it had to spend time on other legislation. Again, that wasn't the budget.

A special session can be expensive. Each day will cost taxpayers a minimum of $12,420 in per diem pay, but there are also travel expenses and the costs of paying staff. That's why that daily cost of a special session could run in excess of $20,000. Perhaps it would make sense — and save some money — to bring back only the budget negotiators for the special session. Let that group reach an agreement before calling back the full body to consider the compromise and vote. Hoosiers should learn shortly when Gov. Mitch Daniels will call them back. The most serious deadline they face is July 1, after which state government would have a difficult time operating without budgeted funds.

Look, most lawmakers feel the frustration in not getting their job done on time. That's why we expect they will convey to their leaders the need to wrap up this costly exercise as quickly as possible.

From the Fort Wayne Journal Gazette, this editorial titled "A Miserable Failure." From the Indianapolis Star, this editorial headed "A sad state of legislative leadership." Fomr the NWI Times, this editorial, headed "Legislative session was a failure." From the Lafayette Journal & Courier, this editorial, headed "Indiana legislators failed their constituents," that reads:

Everyone is entitled to a bad day -- even a bad week and sometimes an off month. But four bad months in a row? State senators and representatives have no one to blame but themselves for their failed 2009 session.

Every two years, the General Assembly has one task that must be completed by the end of the four-month session -- adopt a state budget, preferably a two-year spending plan.

Getting a budget passed was so important that lawmakers hid behind this task to avoid other legislation that many Hoosiers supported, such as giving residents the opportunity to vote in a referendum to cap property taxes.

Lawmakers failed their constituents this year. They couldn't reach a compromise on the budget. So now the blame begins.

The House blamed the Senate -- and vice versa; the Republicans blamed the Democrats -- and vice versa. House and Senate leadership blamed the governor -- and so it goes. It doesn't change the fact that all of our lawmakers failed miserably -- and not just on the budget. They failed to do the people's business.

The Kernan-Shepard recommendations for local government reform, for example, have broad support throughout the state, yet the House killed those reforms.

Now the legislature will be called into special session to finish the work it failed to complete, and all Hoosiers ought to be indignant with their representatives and senators.

In the worst recession in 70 years, facing falling state revenues and with state employees having their wages frozen, lawmakers will now cost taxpayers more than $12,000 a day for a special session.

It's difficult to separate the politics from political process in the General Assembly, and Hoosiers tolerate the gamesmanship as a necessary evil, as long as the work gets done. To the shame of all lawmakers, that didn't happen this year.

Posted by Marcia Oddi on May 1, 2009 08:07 AM
Posted to Indiana Government

Thursday, April 30, 2009

Ind. Decisions - Supreme Court decides two today re ex post facto challenges to the Indiana Sex Offender Registration Act

In Richard P. Wallace v. State of Indiana, an 18-page, 5-0 opinion, Justice Rucker writes:

The statutes collectively referred to as the Indiana Sex Offender Registration Act (“Act”) require defendants convicted of sex and certain other offenses to register with local law enforcement agencies and to disclose detailed personal information, some of which is not otherwise public. In this case we consider a claim that the Act constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it applies to a defendant who committed his offense before the statutes were enacted. We conclude that as applied in this case the Act violates the constitutional provision. * * *

Having previously granted transfer we now reverse the judgment of the trial court on Wallace's ex post facto claim. In all other respects we summarily affirm the opinion of the Court of Appeals. * * *

[The opinion gives a thorough history of sex offender laws.]

Wallace contends that as applied to him the Act violates the ex post facto prohibitions of both the Indiana and federal Constitutions because he committed his crime, was sentenced, and served his sentence before any registration or notification was required. * * *

In this jurisdiction the Act makes information on all sex offenders available to the general public without restriction and without regard to whether the individual poses any particular future risk. Indeed we think it significant for this excessiveness inquiry that the Act provides no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure. Offenders cannot shorten their registration or notification period, even on the clearest proof of rehabilitation. Thus, the non-punitive purpose of the Act, although of unquestioned importance, does not serve to render as non-punitive a statute that is so broad and sweeping. We conclude that the seventh Mendoza-Martinez factor favors treating the effects of the Act as punitive.

In summary, of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent that the statute be regulatory and non-punitive, only one factor in our view - advancing a non-punitive interest – points clearly in favor of treating the effects of the Act as non-punitive. The remaining factors, particularly the factor of excessiveness, point in the other direction.

Conclusion. Richard Wallace was charged, convicted, and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted. We conclude that as applied to Wallace, the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. We therefore reverse the judgment of the trial court.

In Todd Jensen v. State of Indiana, a 19-page, 3-2 opinion, Justice Rucker writes:

In an opinion handed down today we concluded the Indiana Sex Offender Registration Act ("Act"), as applied in that case, violated the prohibition against ex post facto laws contained in the Indiana Constitution. See Wallace v. State, No. 49S02-0803-CR-138, ___ N.E.2d___, (Ind. Apr. 30, 2009). As we explain below the Act does not violate the Indiana constitutional ban on ex post facto laws as applied here. * * *

But the effects of the Act apply to Jensen much differently than they applied to appellant Wallace. The "broad and sweeping" disclosure requirements were in place and applied to Jensen at the time of his guilty plea in January 2000. Nothing in that regard was changed by the 2006 amendments. And with regard to lifetime registration, we note that sexually violent predators may, after ten years, "petition the court to consider whether the person should no longer be considered a sexually violent predator." Ind. Code § 35-38-1-7.5(g) (2006). We conclude therefore that the seventh Mendoza-Martinez factor favors treating the effects of the Act as non- punitive when applied to Jensen.

In summary, of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent that the statute be regulatory and non-punitive, only three lean in favor of treating the effects of the Act as punitive when applied to Jensen. The remaining factors point in the other direction. Importantly, the last Mendoza-Martinez factor, which we afford "considerable weight in deciding whether the [Act is] punitive-in-fact," Wallace, ___ N.E.2d ___, slip op. at 17 (citation omitted), leans in favor of treating the Act as non-punitive when applied to Jensen. We conclude therefore that Jensen has not carried his burden of demonstrating that as applied to him the Act violates the Indiana constitutional prohibition against ex post facto laws. On this issue we affirm the trial court‘s ruling. We now address Jensen‘s remaining claims, which the Court of Appeals did not reach.

Jensen contends that "[r]equiring Mr. Jensen to register as a sex offender for life violates his right to life, liberty, and the pursuit of happiness under the State and Federal Constitutions." We make the following observations. First, although Jensen cites the Fourteenth Amendment to the United States Constitution and Article 1 section 1 of the Indiana Constitution he advances no argument concerning the Federal Constitution. This claim is thus waived. Second, Jensen devotes slightly more than one page to his Indiana constitutional claim. In doing so he cites to a single case * * * This claim is also waived. Trueblood v. State, 715 N.E.2d 1242, 1255 (Ind. 1999) (finding claim waived when defendant failed to cite authority or make cogent argument in its favor). * * *

We affirm the judgment of the trial court.

Shepard, C.J., concurs.
Sullivan, J., concurs in result with separate opinion.
Boehm, J., dissents with separate opinion in which Dickson, J., concurs.

[Justice Sullivan's concurring opinion begins] Jensen contends that he has been subjected to punishment on an ex post facto basis as a consequence of amendments to the Indiana Sex Offender Registration Act in 2006 that had the effect of converting his 10-year registration requirement into a lifetime registration requirement. I do not believe Jensen‘s claim that these 2006 amendments imposed additional punishment on him is ripe for adjudication. For this reason, I concur only in the result of the Court‘s opinion.

[Justice Boehm's dissent begins] I respectfully dissent. I agree with the implicit holding of the majority that this case is ripe for resolution. However, I believe the enhanced registration requirements enacted in 2006 constitute an additional punishment that violates the Ex Post Facto Clause as applied to Jensen, whose crimes were committed in 1998.

Posted by Marcia Oddi on April 30, 2009 02:56 PM
Posted to Ind. Sup.Ct. Decisions

Courts - Michigan High Court tackles juries' Googling

Doug Guthrie reports today in The Detroit News:

New rules to codify what seems like common sense: Barring jurors from making cell phone calls or Googling while deliberating cases. The rules under consideration by the Michigan Supreme Court also would prohibit them from taking computers or other communications devices to court -- and maybe even using them at home, should a judge see fit. * * *

"Historically, judges told jurors, don't read the paper and don't watch the news. Don't talk to anyone about this, not even your spouse. Well, this is just a modern extension of that," said Antrim County Prosecuting Attorney Charles Koop, past president of the state prosecutors association. "You would think that you could assume jurors know they shouldn't use the Internet to make comments or do independent research, but they say, 'You didn't say don't use my PDA.' It's a new technology and a new habit for people to find answers at their fingertips, and we have across the state found judges who are not willing to instruct jurors to stop Googling information."

Koop theorized, "What if you have a criminal sexual conduct charge against a guy and a juror calls up the State Police sex offenders list in the jury room on his iPhone? 'Hey, he's already on this list so he must be guilty.' That's a problem."

The ILB has had earlier related stories, such as this one from March 17th.

Posted by Marcia Oddi on April 30, 2009 02:51 PM
Posted to Courts in general

Ind. Courts - "State investigating Judge Spencer: Allegations stem from Ward murder trial"

From the Anderson Herald Bulletin, a story by Stephen Dick that begins:

Judge Fredrick Spencer of Madison Circuit Court is under investigation by the state Judicial Qualification Commission for alleged ethical violations.

Read the story here.

Posted by Marcia Oddi on April 30, 2009 02:45 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 8 today (and 18 NFP)

For publication opinions today (8):

In ACLS d/b/a Nations Transportation, and Mr. and Mrs. Bob Milutinovic v. George Bujaroski, a 5-page opinion, Judge Crone writes:

ACLS d/b/a Nations Transportation and Mr. and Mrs. Bob Milutinovic (collectively, “Nations”) appeal the determination of the Indiana Worker’s Compensation Board (“the Board”) that George Bujaroski was an employee of Nations and thus entitled to certain worker’s compensation benefits. We remand.

Nations raises three issues for our review, the dispositive issue being whether the full Board erred by purporting to affirm the decision of a single board member by a vote of less than the majority of the full Board. * * *

Therefore, pursuant to Indiana’s statutes and caselaw, it is clear that when the full Board accepted Nations’s application for review, the single Board member’s opinion was vacated. The full Board’s review was de novo. It was Bujaroski’s burden to prove to the full Board that he was entitled to compensation under the Worker’s Compensation Act. See Triplett v. USX Corp., 893 N.E.2d 1107, 1116 (Ind. Ct. App. 2008), trans. denied (2009). Bujaroski failed to carry this burden, as demonstrated by the full Board’s tie vote. Therefore, we remand to the Board for action pursuant to its options consistent with this opinion.

In Paoli Municipal Light Department, et al v. Orange County Rural Electric Membership Corp. , a 9-page opinion, Judge Riley writes:

The Town of Paoli constructed a recreational sports complex (Sports Complex) and sewage lift station entirely within REMC’s electric service territory. It has been providing electricity service to the sewage lift station for at least the last fourteen years. On November 5, 2007, REMC learned that the Town of Paoli was also constructing electric distribution facilities in REMC’s service area in order to furnish electricity service to the Sports Complex. * * *

Retail electric service is defined under the [Electricity Suppliers’ Service Area Assignments Act ] as “electric service furnished to a customer for ultimate consumption, but does not include wholesale electric service furnished by an electricity supplier to another electricity supplier for resale.” I.C. § 8-1-2.3-2(c).

Relying on the Act, the Town of Paoli now concedes that REMC has the sole and exclusive right to serve customers within its assigned service area. Nevertheless, the Town of Paoli argues that it has the right to serve the Sports Complex because it is owned by the Town and, by serving itself, it cannot be considered a customer. Maintaining that it cannot be its own customer, it necessarily follows that the electricity service the Town provides to the Sports Complex is not retail electric service as defined by the Act. Therefore, there is no violation of the Act and the Town of Paoli is free to cross the service territory boundary at will and with impunity. We find the Town’s argument to be without merit. * * *

Because the Town of Paoli did not petition the Indiana Utility Regulatory Commission to realign the utility service boundaries and allow the Town of Paoli to service its own Sports Complex pursuant to I.C. § 8-1-2.3-3, the Sports Complex is still properly located within REMC’s service territory. * * * As a result, REMC remains the exclusive supplier of electricity to the Sports Complex.

Additionally, the Town of Paoli asserts that because the Town has provided electricity for the past fourteen years to a now-defunct sewage lift station entirely located within REMC’s service area, REMC is time-barred from seeking relief. The Town of Paoli relies on Indiana Code section 8-1-2.3-4(b) which provides that an action to enjoin an electricity provider from rendering unlawful service must be brought within three years after the violation occurs. However, here, REMC does not bring an action to enjoin the Town of Paoli from rendering service to the sewage lift station; rather, it only wants to refrain the Town from extending electricity service to the Sports Complex. Therefore, we find that REMC’s action was brought in a timely manner.

Based on the foregoing, we hold that the trial court properly granted summary judgment to REMC and we remand to the trial court for determination of damages pursuant to I.C. § 8-1-2.3-4(b).

In Town of Munster Board of Zoning and Precision Homes, Inc. v. Dr. Paula Benchik Abrinko , a 9-page opinion, the issue is stated as "Whether the trial court erred in reversing the BZA’s grant of a developmental standards variance when the BZA found a practical difficulty pursuant to Indiana Code section 36-7-4-918.5." Judge Riley writes:

In sum, due to the very broad findings which solely focused on the size of the lot, the BZA’s basic findings come very close to being merely a general replication of the requirements of the ordinance at issue. See Network Towers, 770 N.E.2d at 845. We agree with the trial court that the quantum of legitimate evidence before the BZA was so proportionately meager that we cannot but conclude that the BZA’s finding does not rest on a rational basis.

CONCLUSION. Based on the foregoing, we hold that trial court properly reversed the BZA’s grant of a developmental standards variance because there was no rational basis for the BZA’s finding of practical difficulties. Affirmed.

TW General Contracting Services, Inc., Harland A. Wendorf, et al v. First Farmers Bank & Trust - Judge Crone concludes: "In sum, the Guarantors signed the Guaranties. The plain language of the Guaranties made the Guarantors responsible for unlimited, ongoing liabilities of TW. None of the Guarantors provided written revocation of their Guaranties. Therefore, when TW defaulted, the Guarantors should have expected that they would need to fulfill their promises under the Guaranties. Accordingly, summary judgment was properly granted to the Lender. "

In In the Matter of the Term. of Parent-Child Rel. of M.P., et al; L.P. v. IDCS, an 8-page opinion, Judge Barnes writes:

L.P. (“Mother”) appeals the termination of her parental rights to M.P. and A.S. We affirm.

Mother raises one issue, which we restate as whether the trial court impermissibly terminated her rights because she is mentally handicapped. * * *

Mother likens her situation to our State’s prohibition on the execution of mentally retarded criminal defendants. This association is misplaced and inapposite: our State’s criminal punishment of those with mental deficits has nothing to do with termination of parental rights. Indiana courts have repeatedly stated that termination proceedings are not designed to punish the parent, but rather to protect the best interests of the child. See A.J. v. Marion County Office of Family and Children, 881 N.E.2d 706, 717 (Ind. Ct. App. 2008), trans. denied.

Regardless of Mother’s mental deficits, she was unwilling to participate in the programs offered to her. She was also unwilling or unable to maintain suitable employment and housing, even with the help and resources of family members and programs. DCS met its burden under the termination statute.

Conclusion. There is clear and convincing evidence to support the trial court’s finding that the conditions resulting in the children’s removal from the home would not be remedied, that continuation of the parent-child relationship poses a threat to the well-being of the children, that there is an adequate plan for the care of the children, and that termination of Mother’s parental rights is in the children’s best interests. Mother’s mental deficits do not preclude this result. We affirm.

Isaiah Alvies v. State of Indiana - "Based on the foregoing, we conclude that the State presented sufficient evidence to support Alvies’ convictions and that, but for one bad aggravator, the trial court properly sentenced Alvies. Because we can say with confidence that the trial court would have imposed the same sentence even if it had not considered the improper aggravator, we need not remand for re-sentencing. Finally, Alvies’ sentence is not otherwise inappropriate. Affirmed."

In Billy Atwood v. State of Indiana , a 14-page opinion, Judge Kirsch writes:

In McCullough v. State, 900 N.E.2d 745, 746 (Ind. 2009), our Supreme Court held that “in the exercise of the appellate authority to review and revise criminal sentences, a court may decrease or increase the sentence.” In that case, the State, on cross-appeal, had sought appellate review of McCullough's sentence arguing in favor of an increase in the sentence imposed. Our Supreme Court held that while appellate authority to review and revise criminal sentences did allow for an increase in a defendant's sentence, the State could not initiate review of the sentence on appeal or cross-appeal, but was restricted to making the argument in response to a request for sentence revision initiated by the defendant. 900 N.E.2d at 750.

Here, Atwood's appellant's brief was filed prior to our Supreme Court's February 10, 2009, decision in McCullough. However, Atwood did request sentence revision in his brief. The State responded, arguing that the sentence was unduly lenient, and cited our Supreme Court's opinion in McCullough. Atwood's reply brief, filed on March 18, 2009, was limited in its discussion to the State's cross-appeal argument about Atwood's belated notice of appeal. Accordingly, we turn now to the issue of whether the holding in McCullough can be applied to Atwood's appeal. * * *

Because Atwood's brief was filed before our Supreme Court decided McCullough and because we are unable to say with confidence that Atwood would have raised an issue regarding the appropriateness of his sentence had he known that he may face an increased sentence, we decline the State's invitation to revise the sentence upward. Affirmed.

In State of Indiana v. Jessi L. Campbell, a 9-page opinion, Judge Najam writes:

The State appeals the trial court's order granting the motion of Jessi L. Campbell to suppress evidence obtained when officers stopped her vehicle in order to investigate a report of conduct meeting the definition of criminal confinement. The State presents a single issue for review, namely, whether the trial court erred when it determined that the officers did not have reasonable suspicion to stop Campbell's vehicle.

In sum, the trial court erred when it found that the law enforcement officers did not have reasonable suspicion to initiate a stop. A witness told Deputy Marshall Clark that she had seen a husband drag his wife, named Jessi, into a white Tahoe. The witness also said that the couple lived in Peru and that they drove the Tahoe in that general direction. Officers from Cass County Sheriff's Department then intercepted the Tahoe on one of the routes from the tavern to Peru. The witness's accurate prediction of the Tahoe's likely location and direction of travel lent credibility to her information. Thus, we conclude that the officers had reasonable suspicion to stop Campbell's vehicle. As such, the trial court erred when it granted Campbell's motion to suppress evidence obtained as a result of the stop. Reversed and remanded.

NFP civil opinions today (5):

Auto Owners Ins., as Subrogee of Approval Auto Credit, Inc. v. Robert H. Drake, Jr. (NFP)

Michael Francis v. Lawrence T. Newman (NFP)

Susan Kerkhoff v. Jerry Kerkhoff (NFP)

The Term. of the Parent-Child Rel. of D.J.; and Melissa J. v. Indiana Dept. of Child Svcs., Hancock Co. (NFP)

The Term. of the Parent-Child Rel. of K.M., K.M.M., K.J.M., R.V.M., and R.E.M.; and M.K.B. v. Monroe Co. Dept. of Child Svcs. (NFP)

NFP criminal opinions today (13):

Derick Smith v. State of Indiana (NFP)

Diagentry L. Lewis v. State of Indiana (NFP)

Antonio Washington v. State of Indiana (NFP)

Herbert Johnson v. State of Indiana (NFP)

Lenn Ivy v. State of Indiana (NFP)

Vern Root v. State of Indiana (NFP)

W.L. II v. State of Indiana (NFP)

Robert L. Herrin, Sr. v. State of Indiana (NFP)

Jeffrey A. Rowe v. State of Indiana (NFP)

Jerry Allen Davis v. State of Indiana (NFP)

Bobby D. Plummer v. State of Indiana (NFP)

William Walton v. State of Indiana (NFP)

Jeffery Anderson v. State of Indiana (NFP)

Posted by Marcia Oddi on April 30, 2009 01:50 PM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - General Assembly adjourns without budget; special session looms; what passed

A number of reports today on the failure of the General Assembly to pass a budget before midnight last night:

Eric Brader of the Evansville C&P - "Statehouse gets special session: Education cuts send talks into overtime"

Leslie Stedman Weidenbener of the LCJ - "Special session looms over budget impasse: School funding splits parties"

Niki Kelly of the Fort Wayne JG - "Split vote kills hope for budget: Special session required after rejection by House"

Eric Bradner also has a story on what passed and what failed. Puppy mills finally passed, with language that limits local units of government, after the end of this year, from enacting measures stricter than the new statute. See also this brief story in the South Bend Tribune on puppy mills. That paper also reports that the "bill that opponents said would limit women's access to abortions in Indiana has died Wednesday after the General Assembly adjourned without reaching a compromise on the contentious legislation.."

[More] See also this AP story on what passed and what fails.

Posted by Marcia Oddi on April 30, 2009 09:43 AM
Posted to Indiana Government

Environment - "EPA seizes Crestwood Illinois files: Raid comes after tainted-well report"

All in all, this is a pretty amazing set of stories.

On April 19th the Chicago Tribune published a story by its enviromental reporter, Michael Hawthorne, headlined "Poison in the well: Crestwood officials cut corners and supplied residents with tainted water for 2 decades." The long story began:

Like every town across the nation, south suburban Crestwood tucks a notice into utility bills each summer reassuring residents their drinking water is safe. Village leaders also trumpet the claim in their monthly newsletter, while boasting they offer the cheapest water rates in Cook County.

But those pronouncements hide a troubling reality: For more than two decades, the 11,000 or so residents in this working-class community unknowingly drank tap water contaminated with toxic chemicals linked to cancer and other health problems, a Tribune investigation found.

As village officials were building a national reputation for pinching pennies, and sending out fliers proclaiming Crestwood water was "Good to taste but not to waste!," state and village records obtained by the newspaper show they secretly were drawing water from a contaminated well, apparently to save money.

Officials kept using the well even though state environmental officials told them at least 22 years ago that dangerous chemicals related to a dry-cleaning solvent had oozed into the water, records show.

The village avoided scrutiny by telling state regulators in 1986 that they would get all of their tap water from Lake Michigan, and would use the well only in an emergency. But records show Crestwood kept drawing well water on a routine basis—relying on it for up to 20 percent of the village's water supply some months.

The well wasn't shut off for good until December 2007, after the Illinois Environmental Protection Agency tested the water for the first time in more than 20 years. The agency found not only that the well was still contaminated but that Crestwood had been piping the water, untreated, to residents.

Since then, the EPA has cited Crestwood twice for violating environmental laws, yet has failed to notify people who drank the well water for years. The agency continues to investigate, and Illinois Atty. Gen. Lisa Madigan's office also is looking into the matter.

Nearly two weeks, and a number of stories later, Hawthorne and Carmen Greco Jr. have this story today in the Tribune. Some quotes:

Federal agents raided government offices in south suburban Crestwood on Wednesday, less than two weeks after a Tribune investigation revealed the village had secretly pumped drinking water from a polluted well for more than two decades.

Acting on a search warrant obtained by U.S. Atty. Patrick Fitzgerald's office, investigators from the U.S. Environmental Protection Agency spent most of the day collecting records from Crestwood Village Hall, the public works department and the Police Department. They carted away several boxes of documents and took computers for further review.

The involvement of federal prosecutors signals a significant turn in the case. Most violations of environmental laws are handled in civil court, and criminal pollution investigations typically are directed at corporations and individuals, not municipalities.

Agents on the scene in Crestwood wouldn't say much, nor would Fitzgerald's office. But the raid closely followed the Tribune's April 19 report that village residents for years drank water contaminated with chemicals linked to cancer, liver damage and other ailments.

Posted by Marcia Oddi on April 30, 2009 09:06 AM
Posted to Environment

Law - "Recession hits top law firms' profits: Many Chicago practices have cut staff and even the top firms are seeing their revenues fall or flat line"

That is the headline to this long story today in the Chicago Tribune, reported by Ameet Sachdev. It begins:

Partners at Chicago law firms may look back longingly at 2008.

American Lawyer magazine on Wednesday released its annual ranking of the nation's 100 highest-grossing law firms, which offers a picture of the financial health of the legal industry.

Amid weak results across the country last year, Chicago firms scored some bragging rights against their New York rivals. But business at the start of 2009 was so dismal that law firm managers and industry consultants have put last year's results in the rear-view mirror. In the first quarter, big firms made unprecedented cuts that put thousands of attorneys and staff on the street.

"The big story is what are this year's numbers going to look like," said Kay Hoppe, a Chicago-based legal consultant. "This is the first year in my memory that almost every law firm would take last year's numbers." * * *

The downturn is a new experience for many lawyers at the top 100 firms. Since the early 1990s, they have grown used to steady increases in revenue and profits. The increases accelerated between 2003 and 2007, fueled by surging demand for lucrative work in the corporate and finance sectors and annual rate hikes.

But the bursting of the housing bubble and the ensuing credit crunch have brought an abrupt end to the golden age for corporate lawyers. American Lawyer reported that profits per partner at the top 100 fell by 4.3 percent, to an average of $1.26 million, and revenue per lawyer dropped 1.2 percent, to $818,000. The magazine said it was the first time since 1991 that both average profits per partner and revenue per lawyer dipped among the top 100 firms.

And, although this story reports:

Amid the grim results, there were bright spots at some Chicago-based firms. Baker & McKenzie's revenue per lawyer grew 10 percent, to $605,000, and Jenner & Block's increased 6.7 percent, to $795,000.

another story today in the Tribune reports:

Baker & McKenzie laid off 38 attorneys and 86 paralegals and staff employees in North America on Tuesday, as the financial crisis continues to take its toll on corporate law firms.

Posted by Marcia Oddi on April 30, 2009 08:57 AM
Posted to General Law Related

Ind. Decisions - Still more on: Supreme Court grants transfer with opinion, applying new Appellate Rule 14.1

The April 17th Indiana Supreme Court decision in the case of In Re: T.S.; Indiana Dept. of Child Services, LaPorte County v. LaPorte County CASA, et al, (ILB entry here, follow-up here), is the subject of a lengthy story today by Tim Evans of the Indianapolis Star. Here are some quotes:

The state Supreme Court has issued a decision that should make it easier for judges to defend rulings that clash with Department of Child Services recommendations.

It is an important decision, legal experts and child welfare advocates agree, because a law that went into effect Jan. 1 seemed poised to discourage such rulings.

The new law, which was included in a property tax measure, shifts the cost of providing care for children in DCS custody from the counties to the state.

But there's a catch: If a local judge disagrees with the DCS recommendation, the county must pick up the tab unless the judge can prove the agency's recommendation is unreasonable or contrary to the welfare and best interests of the child. The fear among some is that the requirement would pressure judges to go along with DCS to avoid costing the county money.

A LaPorte County judge's decision to overrule DCS was the first case challenged since the law went into effect.

An appellate court agreed in March with the judge's recommendation, and now so has the Indiana Supreme Court.

But perhaps more importantly, the court said in its April 17 decision that the proper test for the appellate court in such disputes is that it must find the judge's decision was "clearly erroneous" and not merely assume a DCS recommendation is correct.

"To say this decision was eagerly awaited would be an understatement," said Marion County juvenile court Judge Marilyn Moores. * * *

LaPorte Circuit Judge Thomas Alevizos, whose court issued the ruling that conflicted with the DCS recommendation, said he was pleased.

"I thought the process worked well," he said, "and I'm happy with the legal decision."

What also appeared to work was the expedited "rocket docket" appeals process that was put in place to handle such cases.

Alevizos said it took a little more than a month for the appeals court to issue a ruling -- much faster than usual. The Supreme Court handed down its decision in about the same amount of time. * * *

Alevizos also said "the courts interpreted the law the only way it could have been interpreted, in my opinion.

"To interpret it any other way," he said, "would violate any semblance of separation of powers. If the courts had ruled the way DCS wanted, it would have been unconstitutional, in my opinion -- basically, it would put them on the judge's bench."

That was a concern some critics had when the change was being deliberated last year in the legislature. Many judges were initially upset by the change because the legislation looks like it "assumed we are the problem," Alevizos said.

St. Joseph County Probate Judge Peter Nemeth is among those who don't like the practice that requires judges to defend their decisions if DCS disagrees. He calls it "fiscal intimidation."

Nemeth said the approach puts at least some degree of pressure on judges to follow DCS recommendations. Nemeth said he fears some judges may be reluctant to go ahead with alternative plans because they know that if they lose, they must go to their counties -- which no longer budget for child services -- for funding.

Posted by Marcia Oddi on April 30, 2009 08:34 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: "Appeals court calls non-violent protective orders defective"

Updating this ILB entry from yesterday on the COA's decision April 16th in the case of Moore v. Moore, Heather Gillers of the Indianapolis Star writes today:

For years, advocates concerned with domestic violence have argued that court-issued "nonviolent contact orders" provide no meaningful protection to victims.

And now the courts also have taken a step in that direction.

A state appeals court has deemed one such order "defective," an opinion advocates hope will encourage judges to take stronger measures to protect potential victims of domestic abuse.

"It's obviously a yellow flag," said Marion Circuit Judge Louis Rosenberg. "We will all read it, and we will follow it."

When abuse victims or those who fear for their safety seek protection from a known person, judges typically have issued a common protective order that bars any contact. But sometimes they issue nonviolent orders that allow abusers to see their victims -- as long as they don't hurt them.

The practice made news last summer when an Indianapolis man under such an order shot and killed his ex-wife, April Wills, in front of her 13-year-old daughter.

The appellate opinion this month does not stop judges from allowing contact between victim and abuser, said Seth Lahn, who directs the Protective Order Project at Indiana University's Maurer School of Law. But it discourages that practice in cases where there is past abuse. * * *

Judges use nonviolent contact orders primarily in cases where some contact is deemed necessary for reasons such as counseling or parenting arrangements.

But domestic violence advocates say the orders provide an easy way out for judges who basically allow any contact as long as it's not violent when they should make the effort to set strict rules for such contact.

"The judge has to say, 'I'm granting a protective order. That means no showing up on her doorstep, no phone calls, no texts, no nothing. So while we're here and while we're in court, let's talk about parenting,' " said Kerry Hyatt Blomquist, legal director for the Indiana Coalition Against Domestic Violence. "That takes time."

Lahn said the ruling means "the court should lean on the other side and say, 'We're going to prohibit all contact except for what is necessary to exchange the child for visitation.' "

Blomquist's group, which filed a friend of the court brief in the case, argues that the orders often are misunderstood and give victims a false sense of security.

"If the parties could have nonviolent contact," Blomquist said, "she wouldn't be asking the court for protection."

Blomquist said DeVone Moore, the Marion County woman whose nonviolent contact order the appeals court deemed defective, believed the measure barred visits from her husband, who had abused her.

Still, the Marion Superior Court judge who gave April Wills a nonviolent protective order against her ex-husband does not believe any kind of order would have kept her alive. He said he was in the process of making permanent an emergency protective order prohibiting contact when Wills interrupted him, saying she needed to see her ex-husband for parenting reasons.

"I get angry when people suggest that it was a defective order that led to (Wills' death)," said Marion Superior Court Judge David Certo. "He's a murderer."

In the two years before Certo handed down the nonviolent protective order in the fall of 2007, Carl Wills had slashed Wills' tire, kicked in her door and punched her in the face. She never pressed charges. On July 22, 2008, Carl Wills killed Wills' boyfriend, John L. Cunningham III, then dragged Wills and her 13-year-old daughter into his car. Minutes later, he killed April as the girl watched. As police approached, Carl Wills fatally shot himself.

Certo, who also handed down the nonviolent contact order in the Moore case, said he issues 30 to 50 protective orders per day and two or three nonviolent contact orders a month. He said he appreciates the appeals court's guidance but will continue to evaluate each case individually and hand down nonviolent contact orders when he thinks they're appropriate.

The ILB hopes to obtain copies of the briefs in this case. Here is a link to the ILB summary of the opinion, which links to the ruling.

Posted by Marcia Oddi on April 30, 2009 08:19 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Judge Hamilton sails through 2nd hearing"

So reports Maureen Groppe / Gannett News Service today in the Indianapolis Star. Some quotes:

WASHINGTON -- Despite Republicans' insistence that they needed more time to question Hoosier Judge David Hamilton, the GOP showed little interest in him Wednesday during the second confirmation hearing held for his nomination to the 7th Circuit Court of Appeals.

Oklahoma Sen. Tom Coburn, the only Republican who attended the hearing, asked two mild questions before praising Hamilton's uncle, former Indiana Rep. Lee Hamilton, as one of his heroes.
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The Senate Judiciary Committee held the second hearing after Republicans boycotted an April 1 hearing, complaining that it was held too quickly to give them a chance to review Hamilton's record.

Committee Chairman Pat Leahy, D-Vt., who also did not attend the second hearing, said in a statement that he agreed to hold it because of requests made by Sen. Jon Kyl, R-Ariz., and Sen. Arlen Specter of Pennsylvania.

"I hope that Republican members will reciprocate by not further delaying this nomination," Leahy said.

Specter, who had been the top Republican on the panel, announced Tuesday that he's becoming a Democrat. He did not attend the hearing in either capacity. Kyl also did not attend. * * *

Coburn asked Hamilton about his view of using international law as guidance and about a comment he had made about judges writing the footnotes to the Constitution. Hamilton said he was making the point that judges are not trying to do something new, but are applying old principles and constitutional provisions to new situations.

Coburn thanked Hamilton, adding: "I would say that Lee Hamilton is one of my heroes. I have great admiration and respect for him."

The Seventh Circuit Court of Appeals is the last stop before the Supreme Court for cases from Indiana, Illinois and Wisconsin.

An interesting earlier ILB entry is this one from March 22, 2009, which includes a link to the questionnaire Judge Hamilton filled out for the Judiciary Committee. The ILB entry remarks on the answer on p. 55, at the end of question 10, where Hamilton writes: "Judge Zore has retired, and his current address is unknown."

Posted by Marcia Oddi on April 30, 2009 06:35 AM
Posted to Indiana Courts

Wednesday, April 29, 2009

Ind. Courts - More on: Conferees agreed to version of St. Joe judges selection bill [Updated]

Updating this entry from last evening, the Senate has now adopted the Conference Committee Report on HB 1491. Here is the CCR. Here is the rollcall showing the votes of the individual senators. The vote was 32 yeas, 18 nays.

What remains? The House must adopt it before midnight tonight, then it will be sent to the Governor.

[Updated at 6:13 PM] The House has now adopted the CCR. The vote was 68 yeas, 22 nays, 3 excused, and 7 "not voting." (I don't recall that this option was permitted years back.) Here is the rollcall showing the votes of the individual representatives.

It is now up to Governor Daniels.

Posted by Marcia Oddi on April 29, 2009 04:39 PM
Posted to Indiana Courts

Ind. Decisions - "Appeals court calls non-violent protective orders defective"

The Court of Appeals decision April 16th in the case of Moore v. Moore (see ILB summary here) is the subject of a story on WTHR 13 Eyewitness News:

The Indiana Court of Appeals has found that "non-violent protective orders" don't do enough to stop violence. The court called the orders "defective."

The Indiana Coalition Against Domestic Violence (ICADV) pursued an appeal of the use of "non-violent protective orders." The group says it was concerned that the remedy was a protective order without "teeth" and did not fulfill the statutory mandate for the Court to take action necessary to prevent further violence.

The Indiana Court of Appeals agreed. In the case summary, the Appeals Court said non-violent protective orders were defective.

The appeal also addressed an issue of gun ownership in regard to a protective order. According to an attorney on the case, the decision states that prohibiting "firearms is not a discretionary action on the part of the trial court judge." If the parties concerned are "intimate partners" as defined by federal law, and a hearing is held, the Brady prohibitions that limit the purchase and ownership of firearms must be ordered if the protective order is granted.

The law regarding protection orders is the Indiana Civil Protection Order Act (ICPOA), IC 34-26-5.

Posted by Marcia Oddi on April 29, 2009 04:26 PM
Posted to Ind. App.Ct. Decisions

Environment - More on: Track swine flu via google maps [Updated]

Updating this ILB entry from April 28th, here is an article on the Pittsburgh researchers behind the online tracking map.

Here is IC 16-41-9, Indiana's law on Communicable Disease: Imposition of Restrictions on Individuals With Certain Communicable or Dangerous Communicable Diseases. This chapter covers isolation, quarantine, immunization programs, exclusion from school of infected students, etc.

Additional chapters of IC 19-41, Public Health Measures for the Prevention and Control of Disease, cover other aspects of communicable disease.

ICLEF has just sent out a note re a CLE seminar on May 5th: "Putting The Law In Public Health: The 10 Essential Public Health Services." Note that:

Reduced tuitions for this program have been made possible by funding received through the Indiana State Department of Health from the Department of Health & Human Services and the Centers for Disease Control & Prevention

Tuition for the 3-hour program for ISBA members is $35.00.

[Updated] For the Google map techies, check here for more maps and information.

{Updated Again] Check here for "How to Track Swine Flu Online."

Posted by Marcia Oddi on April 29, 2009 01:06 PM
Posted to Environment

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Tru Cal, Inc. v. Conrad Kacsik Instrument Systems, a 13-page opinion, Judge Friedlander writes:

Tru-Cal, Inc. (Tru-Cal) appeals from the trial court’s grant of summary judgment in favor of Conrad Kacsik Instrument Systems, Inc. (CKI) on all of Tru-Cal’s claims asserted in its complaint against CKI. On appeal, Tru-Cal presents the following restated issues for review: 1. Does the integration clause in the settlement agreement between Tru-Cal and CKI act to bar Tru-Cal from seeking rescission based upon fraudulent inducement? 2. Did the trial court err in granting summary judgment on Tru-Cal’s Indiana Crime Victims Relief Act claim? * * *

This is the type of case described in Prall and Circle Ctr. Dev. Co. where a party can overcome the effect of an integration clause and bring a fraud in the inducement claim to rescind the contract. Questions of fact remain regarding, among other things, whether Tru-Cal reasonably relied upon the alleged false representations made by CKI in the Ohio litigation. The trial court erred in granting summary judgment on this basis.

The parties briefly address an additional issue with respect to Tru-Cal’s Indiana Crime Victims Relief Act (the Act) claim. CKI argued to the trial court that the criminal acts alleged by Tru-Cal (conversion, forgery, deception, identity deception, and criminal mischief) all occurred in Ohio, not Indiana, and, therefore, Tru-Cal failed to state a claim under the Act. * * *

It is sufficient for our purposes at this stage of the proceedings to conclude that there exists a question of fact as to whether the conduct and/or the result of any of the alleged offenses occurred in Indiana. * * * CKI is not entitled to summary judgment with respect to Tru-Cal’s Indiana Crime Victims Relief Act claim on this alternative ground argued by CKI.

Judgment reversed and remanded.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Brady Frost v. State of Indiana (NFP)

David Rutherford v. State of Indiana (NFP)

Sylvester Buckingham v. State of Indiana (NFP)

Desmond Turner v. State of Indiana (NFP)

Posted by Marcia Oddi on April 29, 2009 12:44 PM
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from March 4, the most recent in a list of several entries, the Supreme Court has issued this order dated April 27, titled "Order Revoking Probation and Imposing Suspension."

Posted by Marcia Oddi on April 29, 2009 12:36 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Two Indiana rulings today from 7th Circuit

In Rick Madden v. Royles Royce Corp. (SD Ind., Judge McKinney), a 6-page opinion, Judge Posner writes:

The Uniformed Services Em- ployment and Reemployment Rights Act, 38 U.S.C. §§ 4301 et seq., forbids discrimination in employment on the basis of military service. The plaintiff is a member of the U.S. Air Force Reserve (oddly, the record does not indicate the precise nature of his work for the Air Force, but it seems to involve the refueling of aircraft). He was hired by Rolls Royce, which though it is a famously English company has American facilities, for a temporary position as a “process engineer,” who designates the steps to be followed in a manufacturing process. Robin Savin, who hired and supervised the plaintiff, was a graduate of Purdue’s engineering program and was suitably impressed when the plaintiff told him that he had a degree in aeronautical engineering from Purdue. But the plaintiff made many mistakes in his new job—which is not surprising, because he was not a grad- uate of Purdue; he had flunked out. At the end of the 90- day period for which he had been hired, Savin (who did not know about the resumé fraud), because there was not enough work for all the process engineers, decided to terminate the plaintiff rather than giving him a permanent position or terminating another temp, who had done a better job than the plaintiff. But according to the plaintiff, Savin, when he told the plaintiff the bad news, did not complain about the plaintiff’s performance but instead said that since the plaintiff was about to be called for a stint of active duty with the Air Force, he should be the process engineer to be terminated.

Later the plaintiff applied for an engineering job with the codefendant, DS&S (Data Systems and Solutions), a supplier to (and now owned by) Rolls Royce. He was turned down and again says that the hiring officer referred (albeit obliquely) to his military obligations as a factor in turning him down. But before he would have been hired for the permanent job that he was seeking, there would have been a check of his credentials and work record, and not only his resumé fraud but also his poor work for Savin (the first probably, the second cer- tainly) would have come to light and doomed his chances for being hired, regardless of his military obligations. Although Savin had hired him without a careful check of his credentials, it was for a temporary job for a fellow alumnus (he thought) of Purdue. In fact, the hiring officer for DS&S did try to verify the plaintiff’s references and was unable to do so, which may well have been the real reason he didn’t offer the plaintiff a job.

The district judge granted summary judgment for the defendants with respect to both the refusal to give the plaintiff a permanent job and the later refusal of DS&S to hire him. * * *

[T]he first refusal to hire was based on his incompetent performance, discovered before the refusal, and the defendant in the second episode would have discovered the disqualifying facts about the plaintiff (certainly his poor work record and probably his resumé fraud as well) before hiring him, so the discriminatory motive could have had no consequence. In the McKennon case the discriminatory motive did have a consequence—it resulted in the plaintiff’s discharge sooner than would otherwise have happened.

There are other issues, but none that requires discussion. AFFIRMED.

In Westfield Insurance v. Sheehan Construction (SD Ind., Judge Young), a 7-page opinion, Chief Judge Easterbrook writes:

Sheehan Construction Co. was the general contractor for the Crystal Lake residential subdivision in Indianapolis. A few years after moving in, the owners began to notice moisture in places that should have been dry. An investigation traced the problem to defective work by one of Sheehan’s subcontractors. Litigation in state court ended with a settlement of about $2.8 million. Sheehan wants its insurer, Westfield Insurance Co., to indemnify that expense. (The settlement assigned to the homeowners Sheehan’s rights in the policy, but for simplicity we refer to Sheehan.) Westfield declined and filed this declaratory-judgment action. Indiana supplies the rules of decision. * * *

Sheehan scarcely tries to argue that the policy’s actual language covers the loss that the homeowners incurred. Nor does Sheehan deny that several Indiana decisions, addressing functionally identical situations, have held that the insurer need not indemnify a general contractor. * * * Sheehan contends that these opinions are “outdated” (as if judicial decisions came stamped with expiration dates!) because of the 1986 change to the trade association’s form policy. How a change in 1986 can supersede judicial decisions rendered in 1997 and 2004 is anyone’s guess. * * *

The parties’ other arguments do not require discussion. We cannot refrain from remarking, however, that Sheehan’s insistence that it is entitled to punitive damages because Westfield’s denial of coverage was “in bad faith” is the sort of argument that calls into question the bona fides of all other contentions. How can an insurer exhibit “bad faith” by taking a position that not only follows the policy’s language but also is endorsed by a district judge? We can imagine a procedural form of bad faith—refusal to take any stance on the policy’s coverage while leaving the insured to fend for itself in the underlying litigation—but Westfield addressed Sheehan’s claim with dispatch and filed a prompt declaratory-judgment suit to have the dispute resolved. Sheehan’s insistence, even after losing on the merits in the district court, that the insurer acted “in bad faith” implies that its strategy has been to strong-arm a settle- ment by in terrorem claims, rather than to vindicate its legal entitlements. Lawyers should think carefully about the message that their contentions convey to the court, as well as the effect they may have on the other litigants. AFFIRMED

Posted by Marcia Oddi on April 29, 2009 10:46 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "East Chicago on a roll in battle for casino funds"

The Court of Appeals decisions yesterday in the case of Foundations of East Chicago v. City of East Chicago and State of Indiana (see ILB summary here) is the subject of a story today in the NWI Times by Bill Dolan. Some quotes:

EAST CHICAGO | Mayor George Pabey's lucky streak continued Tuesday's with another court judgment that could allow him to rack in tens of millions of dollars in new casino revenues for the city.

The Indiana Court of Appeals announced Tuesday it has upheld a 2007 state law giving the mayor and the East Chicago City Council permission to gain control of an additional 2 percent of Ameristar Casino and Hotel's adjusted gross receipts.

It came as a blow to The Foundations of East Chicago, an agency created under former Mayor Robert Pastrick, that had been receiving the 2 percent in casino revenues and distributing it to charities, churches, private schools and other public agencies until the money became tied up in litigation two years ago.

Carmen Fernandez, the city's corporate counsel, welcomed the ruling, saying Tuesday, "We have shovel-ready projects waiting for that money."

Foundations' attorney, Peter J. Rusthoven, said his client will appeal to the Indiana Supreme Court.

This comes one week after city officials welcomed an Indiana Supreme Court ruling giving them hope they can win -- through a parallel lawsuit -- additional millions of dollars previously channeled to Second Century, a politically connected East Chicago development firm also favored by Pastrick's administration. * * *

Pastrick brokered deals with Foundations and Second Century in 1994 that had subsidies flowing freely to the entities. Then Pastrick's 2003 re-election was overturned by the Indiana Supreme Court, and Pabey won office the following year in a special election.

Pabey successfully lobbied passage of a new law giving his administration the ability to rewrite the casino deals and cut the Foundations and Second Century out of future casino funds.

Foundations sued to have that law declared unconstitutional. Appeals court judges decided in a 2-1 ruling that East Chicago always had the authority to reshuffle the casino deals.

The Indiana Attorney General yesterday issued a press release (not yet available online, the AG press page seems to be running several days behind) that reads in part:

The Indiana Court of Appeals has ruled in the State of Indiana’s favor, finding that the new administration in the City of East Chicago had the legal right to break development contracts with two nonprofits that received casino money. * * *

Tuesday, the Court of Appeals ruled in a case brought by Foundations of East Chicago Inc., an entity created by the merger of East Chicago Community Development Foundation Inc. and Twin City Education Foundation Inc. Under a 1995 agreement with Pastrick’s administration, the two foundations each were to receive 1 percent in revenue flowing from the casino in East Chicago to use for economic-development purposes. That deal and one involving a for-profit entity, East Chicago Second Century Inc., have been the subjects of investigation and scrutiny for several years.

In January 2005, the newly-elected administration of Mayor George Pabey came into office and sought by ordinance to cancel the prior Pastrick-era contracts with the foundations. The Indiana General Assembly in 2007 passed a state law to give the city legal authority to break the local development agreements so the city could decide for itself how to use the revenue.

In the litigation that ensued, the foundations tried to block the city from canceling the agreements, contending the state law was unconstitutional. A lower court sided with the city, but the foundations appealed. The Office of the Indiana Attorney General defended the statute and argued that the new administration had the right to cancel prior deals.

Tuesday, the Indiana Court of Appeals affirmed the lower court. The majority opinion written by Chief Judge John Baker noted that the city had the right to change the recipient. Enforcing the old agreements would have been a “patent violation of public policy,” he wrote.

“To enforce this policy would be akin to permitting a corrupt public official to enter into an agreement that would bind his or her constituents in perpetuity; it would also bind a community to its current needs, notwithstanding the fact that it might need a park today and a hospital five years from now. To enforce such a policy would be profoundly unwise,” Judge Baker wrote in the 10-page decision.

This comes on the heels of the April 13 decision by the Indiana Supreme Court that reversed a lower court and reinstated the attorney general’s lawsuit against East Chicago Second Century Inc. That for-profit company received $16 million in revenue from the East Chicago casino over 10 years in a deal brokered by Pastrick. The attorney general’s lawsuit now will be heard in Marion County.

“These two recent appellate court rulings have validated the efforts of our office to demand accountability and openness in the use of gaming revenue to support economic development,” Attorney General Greg Zoeller said. “Moreover, we believe that former Mayor Pastrick’s upcoming racketeering trial will shed light on the abuses of the public trust that existed in East Chicago for far too long.”

Posted by Marcia Oddi on April 29, 2009 07:52 AM
Posted to Ind. App.Ct. Decisions

Courts - Where does new Democrat Spector stand on Dawn Johnsen and David Hamilton's nominations?

From a story today by David Ingram in Legal Times:

Sen. Arlen Specter's switch to the Democratic Party brings his new colleagues a little closer to controlling 60 seats in the Senate, but it's not clear that the switch will have much of an effect on the fate of nominees for the federal bench and the Justice Department. * * *

Specter provided a fresh example of that independence Tuesday, saying for the first time that he is "opposed" to the nomination of Dawn Johnsen to be assistant attorney general in charge of the Office of Legal Counsel. Her confirmation is a priority for the Democratic Party's base, in part because the office has been at the center of the battle over interrogation policies. Specter did not elaborate on his reasons for opposing her or make clear whether he would vote for cloture. (Only one Republican, Sen. Richard Lugar of Indiana, has said he will support Johnsen. Johnsen is a law professor at Indiana University at Bloomington.) * * *

Asked whether he would change his approach to potential judges in particular, Specter said he would not. "I am willing to listen to any judicial nominee," Specter said. He then alluded to the Republicans' boycott of the April 1 confirmation hearing for David Hamilton, nominated for the 7th U.S. Circuit Court of Appeals, and he said his only concern had been inadequate time to prepare for the hearing. "I will counsel the chairman to have adequate time to prepare," he said.

[More] Maureen Groppe of the Gannett News Service has a story this morning that begins: "Allies of Indiana University law professor Dawn Johnsen are trying to counter Republican opposition to her nomination to a top position in the Justice Department."

Sylvia Smith, Washington editor for the Fort Wayne Journal Gazette, has a story headed: "Lugar to support IU law professor's nomination: First in GOP to back Obama's pick to head internal law office."

Posted by Marcia Oddi on April 29, 2009 07:36 AM
Posted to Courts in general

Tuesday, April 28, 2009

Ind. Courts - Conferees agreed to version of St. Joe judges selection bill [Updated]

So reports Ed Ronco for South Bend's WSBT. Here is the story (BTW - no CCR is available yet online, as of this writing):

Representatives of the Indiana House and Senate have agreed on a measure to move St. Joseph County Superior Court judges to nonpartisan elections.

The four legislators — a Republican and Democrat from both the House and Senate — signed off on House Bill 1491 on Tuesday, state Rep. Craig Fry said.

The nonpartisan elections called for in the measure would replace merit selection, the current system for selecting Superior Court judges under which a committee in the county submits finalists for the bench to Gov. Mitch Daniels, who makes the final decision.

Supporters of the bill said elections are necessary to hold judges accountable to the public. Critics said the bill would expose jurists to undue political influence and pressure.

The bill also puts fundraising limitations on Superior Court judges and expands the state’s appellate court.

The conference committee members were Fry, D-Mishawaka; state Rep. Jackie Walorski, R-Jimtown; state Sen. Ed Charbonneau, R-Valparaiso; and state Sen. Jim Arnold, D-LaPorte.

Fry was the bill’s original author.

Procedurally, the conference committee’s report still must be approved by both the full Senate and House, but Fry said he didn’t anticipate any problems in the process.

Jane Jankowski, press secretary to Daniels, said the governor has yet to review the measure and she couldn’t comment on whether he’ll sign it.

[Updated at 7:41 PM] The CCR has now been posted. The language of the CCR would still establish a 6th COA panel, but would delay its operation until July 1, 2011 (rather than Jan. 1, 2011). That would mean no major additional funding would be required in the upcoming biennial budget.

Here are a number of earlier ILB entries on the St. Joseph County judges selection issue.

Posted by Marcia Oddi on April 28, 2009 05:29 PM
Posted to Indiana Courts