The Indiana Law Blog

Friday, June 05, 2009

Courts - 2nd Circuit Refuses to Block Chrysler’s Sale

Updating this entry from this morning, Michael J. de la Merced writes late this afternoon in the NY Times:

A federal appellate court on Friday rejected a bid by Indiana state pension funds to block Chrysler’s sale to Fiat, but left open the door for the Supreme Court to rule on the matter.

The United States Appeals Court for the Second Circuit in Manhattan put the Chrysler deal on hold until Monday afternoon to allow the funds to make their appeal to the Supreme Court.

The appeal was filed by lawyers for the Indiana pension funds, which objected to the sale because they were seeking more compensation for the Chrysler secured debt they hold. A federal bankruptcy court in Manhattan had previously approved the sale, which would transfer most of Chrysler’s assets to a newer, healthier company run by a group led by Fiat.

Richard Mourdock, Indiana’s treasurer, had argued that “Indiana retirees and Indiana taxpayers have suffered losses because of unprecedented and illegal acts of the federal government.”

Amandine Ambregni reports here for AFP:

A US appeals court Friday cleared the way for Chrysler to exit bankruptcy under an alliance with Italy's Fiat, dismissing a challenge from Indiana's state pension funds.

A three-judge panel from Second Circuit Court of Appeals upheld without comment a decision by a bankruptcy judge approving the US government-backed plan to create a new entity to buy the assets of the troubled number three American automaker.

The panel allowed the opponents of the plan until 2000 GMT Monday to obtain any further delay from the US Supreme Court.

The appeals court decision puts Chrysler on the verge of completing its quick exit from bankruptcy protection following a filing April 30 in a plan backed by President Barack Obama's administration to tie the group to Fiat.

Posted by Marcia Oddi on June 5, 2009 05:39 PM
Posted to Courts in general | Indiana Government

Ind. Decisions - Transfer list for week ending June 5, 2009

I'm told there is no transfer list for the week ending June 5, 2009.

Posted by Marcia Oddi on June 5, 2009 04:26 PM
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)

For publication opinions today (3):

In Van Prooyen Builders, Inc. v. Earl L. Lambert, Jr. and Mildred Lambert, an 11-page opinion, Judge Najam writes:

Van Prooyen Builders, Inc. (“Van Prooyen”) appeals from the trial court's money judgment in favor of Earl Lambert, Jr., and Mildred Lambert (“the Lamberts”) for real property taxes owed under their real estate purchase agreement. The parties dispute whether, given the “late” assessment of real property in Lake County, their agreement requires the proration of 2006 taxes payable in 2007. The trial court noted that “since 2002 no tax bills [in Lake County] have been delivered on time” and held that, “due to factors completely beyond control of the parties,” the clause that requires that all real estate taxes “assessed against the subject property after closing shall be paid by the Buyer” is void as against public policy. See Appellant's App. at 31, 34, 46. We hold as a matter of law that, regardless of when the assessment was actually completed and the tax statements were issued, the March 1 statutory assessment date controls the operation and effect of the tax provision, which unambiguously prorates the 2006 taxes payable in 2007 as of the closing date. Thus, we affirm the trial court's judgment for the Lamberts. * * *

In sum, the fact that Lake County was late in assessing the real property taxes does not affect the parties' intent to prorate taxes according to their ownership of the property. The Tax Provision's last sentence means, simply, that once the Lamberts became title owners they likewise became personally responsible for those property taxes attributable to their ownership, regardless of any reassessments or adjustments, and that the Lamberts would be responsible for satisfying any tax liens against the property that attached after they acquired the title. We therefore must affirm the trial court's judgment for the Lamberts.

Conclusion The dispositive question in this appeal is not whether the Agreement violates public policy but whether the Tax Provision unambiguously provides for the proration of the 2006 tax liability. We hold that the statutory assessment date controls the Tax Provision, which is consistent with the parties' clear intent to prorate the tax liability. See Moll, 264 Ind. at 366, 344 N.E.2d at 839; Miller, 643 N.E.2d at 928; Johnson, 614 N.E.2d at 589. We affirm the trial court's judgment that Van Prooyen is required to pay to the Lamberts that portion of the 2006 taxes, payable in 2007, attributable to Van Prooyen's ownership of the property calculated to the closing date. Affirmed.

In Richard Moore v. Wells Fargo Construction, an 8-page opinion on rehearing, Judge Najam writes:

Moore has filed a petition for rehearing, asking us to reconsider our holding that Moore waived the argument that CIT’s sale of the Excavator was not conducted in a commercially reasonable manner. In particular, Moore argues that he was statutorily barred from waiving his right to a commercially reasonable sale of collateral.

Although Moore did not directly or indirectly make this argument in his Appellant’s Brief, on review we agree with Moore that, under the Uniform Commercial Code, he could not have waived the right to a commercially reasonable sale of collateral. As such, we grant Moore’s petition to consider whether CIT conducted the sale of the Excavator in a commercially reasonable manner. And, after considering that issue on the merits, we reaffirm the trial court’s decision. * * *

In light of all the circumstances, we cannot say that the trial court abused its discretion when it determined that CIT’s sale of the Excavator was conducted in a commercially reasonable manner. In all other respects, we affirm our prior opinion.

Rehearing granted, modified in part and reaffirmed in part.

In C.C. v. State of Indiana , a 6-page opinion, Judge Crone writes:

Did the trial court commit fundamental error by accepting jurisdiction in this case? * * *

From a common sense standpoint, if we were to follow C.C.’s reasoning to its illogical conclusion, his misdemeanor violation of the firearm statute would not fall within the jurisdiction of either the juvenile court or the adult criminal court and thus would go unpunished. We do not think this was the legislature’s intent. As the State points out, “[i]t is a rule of statutory interpretation that courts will not presume the legislature intended to do a useless thing or to enact a statute that is a nullity.” N. Indiana Bank and Trust Co. v. State Bd. Of Finance, 457 N.E.2d 527, 532 (Ind. 1983).

For all these reasons, we find no fundamental error in the juvenile court’s exercise of its jurisdiction in this case. Affirmed.

NFP civil opinions today (4):

Paternity of N.T.; D.K. v. B.T. (NFP)

In Re the Paternity of T.M.: J.M. v. C.C. (NFP)

The Invol. Term. of the Parent-Child Rel. of T.J., T.J., and T.J.; T.J. v. Indiana Dept. of Child Svcs. (NFP)

The Term. of the Parent-Child Rel. of De.S. and Dy.S.; N.F. v. Indiana Dept. of Child Svcs. (NFP)

NFP criminal opinions today (10):

Andrew G. Hartoin v. State of Indiana (NFP)

Dustin Messer v. State of Indiana (NFP)

Wendell Iddings v. State of Indiana (NFP)

Norman Anderson v. State of Indiana (NFP)

Shannon Terrell v. State of Indiana (NFP)

Anthony Malenchik v. State of Indiana (NFP)

Debra Willsey v. State of Indiana (NFP)

Matthew D. Taylor v. State of Indiana (NFP)

Donald Parmerlee v. State of Indiana (NFP)

Said A. Elkhatib v. State of Indiana (NFP)

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

Courts - More on Indiana's pension funds' involvement in Chrsler bankruptcy

Esmé E. Deprez of Business Week has this long story today.

The Gary Post-Tribune had an editorial yesterday headed "State treasurer fails to take responsibility."

This Nov. 23rd ILB entry, headed "Troubled by Toll Road investments," provides some background.

Finally, for now, here is the 92-page brief filed Thursday with the 2nd Circuit by the Indiana Pensioners.

Posted by Marcia Oddi on June 5, 2009 10:21 AM
Posted to Courts in general | Indiana Government

Ind. Law - AG finds that a Port Authority seat is a "lucrative office" per the Constitution

Jeff Burton reports today in the NWI Times:

HAMMOND | Bob Markovich should not hold seats on the Hammond City Council and the Hammond Port Authority, according to an opinion by Indiana Attorney General Greg Zoeller made public earlier this week.

He cited a constitutional provision prohibiting officials from holding dual lucrative offices.

Explaining his opinion using previous case law, Zoeller said an office is deemed "lucrative" in the eyes of the state when "there is attached a compensation for services rendered," and that "lucrativeness does not depend on the amount of compensation affixed to the office." He said a position would not be considered lucrative if the office holder was reimbursed for expenses incurred in connection with his or her duties.

Hammond Mayor Tom McDermott Jr. raised the issue of holding both offices shortly after City Council members chose Markovich, an at-large member of the council, to sit on the port authority board in January. McDermott vetoed the appointment and asked Zoeller for an opinion.

Markovich, a 22-year council member, said until this year when he was appointed, a City Council member always has sat on the port authority board. 1st District Councilman Mark Kalwinski previously held the post.

"It was OK for Mark Kalwinski to be on there," Markovich said. "Now that I'm the appointment, no other council member can be on there? I have the research from the City Council attorney that it's not lucrative. I have a Supreme Court ruling."

Markovich, who lives in the Robertsdale area, said the port authority needs a watchdog to monitor how a $31 million award from the Regional Development Authority is spent and that the Attorney General's nonbinding opinion shouldn't be considered the word of law.

"The Attorney General is just another lawyer who has an opinion," he said.

Here is the June 1, 2009 AG advisory opinion.

The AG's office under General Carter prepared a 20-page "Dual Office Holding Guide." Access it here.

[More] The Times today also has an editorial, suggesting that Zoeller expand the ruling in some areas, rather than issuing lucrative office opinions on a case-by-case basis:

The Hammond City Council appointed one of its own, Bob Markovich, to serve on the city's Port Authority board. But now Indiana Attorney General Greg Zoeller says Markovich is not entitled to serve there.

Zoeller's ruling this week is strictly advisory, but it's reason enough for the City Council to appoint a citizen, not a councilman, to the board.

Markovich, D-at-large, was appointed by his peers in January, but Mayor Thomas McDermott Jr. vetoed his appointment within days, citing a state law banning public officials from holding dual lucrative positions.

State Sen. Frank Mrvan, D-Hammond, asked for the attorney general's opinion. Here's the short answer: "A member of a city council and a member of a board of directors of a local government port authority are both lucrative officeholders for purposes of Article 2, Section 9 of the Indiana Constitution. Simultaneously holding both offices would violate the constitutional prohibition against dual office holding."

McDermott was asked last week about the request for an official advisory opinion. "I'd be shocked if (Zoeller) came back and said (Markovich) could serve on it," McDermott said. How prophetic.

The mayor noted the precedent of City Clerk Bob Golec, whose appointment to the Little Calumet River Basin Development Commission was rejected by the state in 2005 because it would be considered holding two lucrative positions.

Hammond Port Authority board members receive about $6,000 a year and have the option of receiving health insurance.

Councilman Mark Kalwinski, who held the seat before Markovich was appointed, has said he wants someone from the First District appointed, because the Port Authority business affects his constituents in the Robertsdale area and because of the casino revenue generated in his district.

Zoeller's opinion answers Mrvan's direct question about whether a council may also serve on a port authority board. It was about a specific situation.

Mrvan or one of his fellow lawmakers should now ask Zoeller to rule on the broader questions this ruling raises.

Zoeller should be asked to take a look at other instances of public officials holding more than one lucrative office -- including the many mayors who get paid extra for serving on sanitary district boards. Is that unconstitutional? From the attorney general's Dual Office Holding Guide, it would seem so.

Of course, public officials don't have to wait for Zoeller to rule on a potential question about this practice. They can -- and should -- follow this simple principle: Let officeholders do what they were elected to do and give citizens a chance to serve in other capacities.

Posted by Marcia Oddi on June 5, 2009 09:08 AM
Posted to Indiana Government | Indiana Law

Environment - Still more on: "EPA cites BP's Whiting refinery for Clean Air Act violations"

Updating yesterday's entry, here is an expanded Gary Post-Tribune story on "Congressmen demand BP probe."

In addition, a formal "Notice of Intent to Initiate Citizen Suit Action under Section 304 of the Clean Air Act " (available here via the P-T) has been filed, as reported today in this P-T story by Gitte Laasby:

MERRILLVILLE -- A group of Northwest Indiana residents intends to sue BP Whiting for illegal air pollution and seek up to $30 million in fines.

The Hammond-based Calumet Project sent a letter to BP officials Wednesday stating it intended to sue because BP failed to get a proper permit before beginning construction on its expansion to process more Canadian crude oil. * * *

The Calumet Project group has already appealed BP's air permit in court, but the new suit would be in federal court and largely leave the Indiana Department of Environmental Management out.

"This is a serious escalation beyond the permit fight," said Denny Larson, executive director for the Global Community Monitor, which is also part of the suit.

He said the groups reviewed EPA documents and discovered that BP also failed to control 2.2 tons of hydrogen sulfide emissions from a sulfur pit at the refinery between October and November 2006. The substance smells like rotten eggs and can cause eye-, nose- and throat irritation and difficulty breathing for asthmatics.

Global Community Monitor has fought cases against other refineries in the past. One of them was an Exxon refinery in Louisiana, which was required to pay a fine, install more air pollution control equipment and install air monitoring.

The legal notice comes after EPA announced Tuesday that BP emitted benzene without proper pollution controls at its treatment plant for nearly six years.

Larson said if regulators had taken air samples near the facility, officials would have discovered there was a problem.

"If they were doing their jobs, this stuff would have been discovered from the beginning, but they rely a lot on self-reporting," he said. "The company will report a lot of things and that builds this illusion that works pretty well... Industries as big as BP, you do have to rely to a degree on self-reporting, but that doesn't prevent agencies from checking on those self-reports and making sure it's accurate and that regulations are being followed."

The groups are against refining tar sands and hope that if BP is required to spend millions on additional pollution control equipment, the company may decide to switch to another crude stock or develop more renewable energy instead.

Posted by Marcia Oddi on June 5, 2009 08:59 AM
Posted to Environment

Thursday, June 04, 2009

Law - Some useful information on obtaining loan modifications

Check out this long article by Alexandra Andrews of ProPublica re helping homeowners avoid foreclosure.

Posted by Marcia Oddi on June 4, 2009 05:06 PM
Posted to General Law Related

Environment - More on: "EPA cites BP's Whiting refinery for Clean Air Act violations"

Updating this ILB entry from Tuesday, Gitte Laasby of the Gary Post-Tribune reports this afternoon:

MERRILLVILLE - Nineteen members of Congress from Great Lakes states are calling for the U.S. Environmental Protection Agency to investigate whether BP is complying with its air, water and land pollution permits.

The legislators asked the EPA Thursday to take "a systemic look" at BP discharges and emissions. The move comes after EPA announced Tuesday that BP's Whiting refinery emitted cancer-causing benzene at its wastewater treatment plant without proper air pollution control equipment for nearly six years.

BP self-reported the 2003-2008 violations in an annual report it is required to submit to the EPA. * * *

No members of Congress from Indiana signed on to the letter.

Both Democrats and Republicans signed it; 11 from Illinois, five from Michigan, two from Wisconsin and one from New York. Many of them also spoke up in 2007 after the Indiana Department of Environmental Management permitted BP to increase its discharges of ammonia and silty materials containing traces of heavy metals into Lake Michigan. * * *

BP discovered the problem when a third party audited the treatment plant in 2008 as part of an effort to improve operations.

See also Laasby's report from June 3rd for more details on the discovery of the violation.

Posted by Marcia Oddi on June 4, 2009 04:23 PM
Posted to Environment

Courts - Judge Sotomayor's 173-page questionaire now available

Here it is, from the Senate Judiciary Committee.

Peter Baker, of the NY Times politics and government blog, The Caucus, has reviewed it and writes about it here this afternoon. His story begins:

The White House first contacted Judge Sonia Sotomayor about the possibility of being nominated to the Supreme Court three days before Justice David H. Souter announced his retirement and stayed in touch with her nearly every day afterward, according to documents sent to Congress on Thursday.

Her early and intensive contacts with the White House, outlined in a questionnaire submitted to the Senate Judiciary Committee, open a window into a selection process in which she appeared to be President Obama’s frontrunner from the beginning. If confirmed, she would be the first Hispanic and third women to serve on the high court.

[More] The Blog of Legal Times has this.

Posted by Marcia Oddi on June 4, 2009 04:17 PM
Posted to Courts in general

Environment - "Obama appoints Cameron Davis as Great Lakes czar" [Updated]

So reports the NWI Times in a brief story.

[Updated 6/5/09] A longer story today, headed "Great Lakes czar has long record as advocate," in the Times.

Posted by Marcia Oddi on June 4, 2009 01:09 PM
Posted to Environment

Courts - More on: President Obama's Indiana nominees David Hamilton and Dawn Johnsen remain in limbo

Updating this ILB entry from May 21st, the Senate Judiciary Committe has today voted to send David Hamilton's nomination to the 7th Circuit to the Senate floor, where it will join his sister-in-law Dawn Johnsen's nomination to the DOJ's Office of Legal Counsel, both now to await confirmation votes from the full Senate.

Here is Maureen Groppe's story from the Indianapolis Star Washington Bureau.

[More at 1:00 PM] More here from the Blog of Legal Times:

The Senate Judiciary Committee today overwhelmingly endorsed two presidential nominees for prominent legal positions: Andre Davis for the U.S. Court of Appeals for the 4th Circuit and Thomas Perez for the Justice Department's Civil Rights Division.

But, in a warm-up for the confirmation debate over Supreme Court nominee Sonia Sotomayor, senators divided sharply along party lines over Judge David Hamilton of Indiana, nominated for the U.S. Court of Appeals for the 7th Circuit.

The three nominations now head to the full Senate. * * *

The nomination of Hamilton, a judge in the Southern District of Indiana, was more controversial. Republicans criticized his rulings in establishment clause cases, and they used his nomination to launch a broad criticism of Obama's judicial philosophy. Sessions even accused the president of attempting an "FDR-style packing of the federal bench," though Obama has not proposed adding any new federal judgeships.

[Still More at 1:22 PM] Brian Beutler of Talking Points Memo DC reports:

With all the news about President Obama's Supreme Court nominee, it's easy to forget that Obama nominated a different judge to a different court before well before Sonia Sotomayor became a household name.

Obama nominated David Hamilton to serve on the Seventh Circuit court of appeals back in March, and, thanks to a number of Republican delays, he has only today been reported out of the Senate Judiciary Committee on a party-line 12-7 vote.

Now Hamilton will be exposed to a bright new world of procedural measures meant to obstruct his confirmation. Back in April, Sen. James Inhofe (R-OK) said he would filibuster Hamilton once the committee advanced the nomination. "I had to come to the floor to speak so that the American people, who are very concerned about this nomination, will know that I and my Republican colleagues on the Judiciary Committee are taking interest and are not just going to let this nomination sail through," Inhofe said on the Senate floor. "In fact I will filibuster David Hamilton."

That's the same James Inhofe who once called judicial filibusters 'unconstitutional.'

(Incidentally, Hamilton is the brother-in-law of Dawn Johnsen--another Obama nominee who's struggling to get confirmed by the Senate.)

Posted by Marcia Oddi on June 4, 2009 12:57 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 4 today (and 11 NFP)

For publication opinions today (4):

Eric D. Smith v. J. David Donahue, et al. - " Although Indiana uses notice pleading, the plaintiff must still plead the operative facts involved in the litigation. See Donahue v. St. Joseph County, 720 N.E.2d 1236, 1239 (Ind. Ct. App. 1999). Smith pleaded none. Smith’s claims are frivolous, lack an arguable basis in fact and law, and are not claims upon which relief may be granted. See Ind. Code § 34-58-1-2. The trial court did not err in dismissing Smith’s complaint. Affirmed. "

In Witmat Development Corp. and Lorelei Airhart v. Randall Dickison, et al. , a 10-page opinion, Judge Mathias writes:

Randall Dickison, individually and as personal representative of the Estate of Gregory Dickison (“the Estate”), filed a complaint in Clay Superior Court against Witmat Development Corporation (“Witmat”) alleging that Witmat negligently failed to warn of a water-filled strip pit adjacent to a public highway, which pit is located on Witmat's property. Witmat moved for summary judgment arguing that it owed no duty to Gregory Dickison (“Dickison”), or in the alternative, that Dickison's own negligence was the cause of the accident that resulted in his death. The trial court denied Witmat's motion for summary judgment. Witmat appeals and raises three arguments, but we address only the following dispositive issue:whether Witmat owed a duty to Dickison as a matter of law. Concluding that Dickison was not traveling the roadway with reasonable care, and therefore, that Witmat is entitled to judgment as a matter of law, we reverse.

In Shean West v. State of Indiana, a 6-page opinion, Sr. Judge Sullivan writes:

The sole assertion presented upon appeal is that there is insufficient evidence to support the conviction because Mrs. West's testimony was inherently contradictory and therefore subject to the rule of incredible dubiosity.
It is well settled that this appellate tribunal will not weigh conflicting evidence and therefore will not reweigh the evidence nor judge witness credibility. Gleaves v. State, 859 N.E.2d 766 (Ind. Ct. App. 2007). However, the rule of incredible dubiosity was recently restated by our Supreme Court in Fajardo v. State, 859 N.E.2d 1201( Ind. 2007) as follows:
If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant's conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.
859 N.E.2d at 1208 (quoting Love v. State, 761 N.E.2d 806, 810 (Ind. 2002)). * * *

The judgment and sentence upon the conviction for Domestic Battery are affirmed.

Christopher L. Moore v. State of Indiana - "The trial court did not abuse its discretion in sentencing Moore, and Moore’s aggregate sentence of nineteen years is not inappropriate in light of the nature of the offense and the character of the offender. Affirmed."

NFP civil opinions today (4):

Donald W. Snover v. Linda K. Snover (NFP) - " Concluding Donald had sufficient opportunity to participate in the final hearing but that the trial court abused its discretion when it determined Donald had no interest in the marital residence, we remand. "

Michael Gould, O.D. v. Jeffrey B. Musselman (NFP) - "During a routine contact lens examination, Dr. Michael Gould, O.D., discovered that Jeffrey B. Musselman's intraocular pressure was abnormally high. Dr. Gould did not provide a referral to an opthamologist but did instruct Musselman to see an opthamologist that Musselman reported having seen in the past about his elevated eye pressure. Musselman agreed to see his opthamologist about the issue, but he never did so. Musselman later developed pigmentary dispersion glaucoma and filed a medical malpractice suit against Dr. Gould, alleging that Dr. Gould failed to meet the applicable standard of care. Dr. Gould asserted the affirmative defenses of contributory negligence and failure to mitigate damages and tendered jury instructions regarding each. The trial court refused to give the instructions, finding that they were not supported by the evidence. A jury found in favor of Musselman and awarded him $750,000. Dr. Gould now appeals, arguing that the trial court abused its discretion by rejecting the jury instructions on contributory negligence and the duty to mitigate damages. Because there is no evidence that Musselman's alleged negligence was simultaneous to Dr. Gould's alleged negligence and because the tendered instruction on the duty to mitigate damages does not fit the facts of this case, we conclude that the evidence does not support the tendered instructions. We affirm the trial court. "

Elizabeth and Dennis Hollen v. Troy Spears and Johnnie Spears (NFP) - "Elizabeth and Dennis Hollen filed a complaint in Washington Superior Court against Troy and Johnnie Spears seeking damages the Hollens incurred after Elizabeth Hollen fell down a flight of stairs at the Spearses' home. The Spearses filed a motion for summary judgment and argued that they did not breach the duty owed to Elizabeth Hollen, and therefore, they were entitled to judgment as a matter of law. The trial court granted the Spearses' motion for summary judgment. The Hollens appeal and argue that genuine issues of material fact preclude the entry of summary judgment. Concluding that the trial court did not err when it granted the Spearses' motion for summary judgment, we affirm. "

A.E. v. J.E. (NFP) - "In light of our statutory analysis and our conclusion that Father is estopped from challenging the paternity affidavit, the trial court did not err in refusing Father’s request to set aside the paternity affidavit. Affirmed."

NFP criminal opinions today (7):

Darren Hudson v. State of Indiana (NFP)

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

James W. Baker, Jr. v. State of Indiana (NFP)

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

Kimberly Faulkner v. State of Indiana (NFP)

Michael Kincaide v. State of Indiana (NFP)

Emil Garver v. State of Indiana (NFP)

Posted by Marcia Oddi on June 4, 2009 12:18 PM
Posted to Ind. App.Ct. Decisions

Environment - "Plans for hog farm are on hold: State lacks regulation, rural neighbors assert"

Angela Mapes Turner of the Fort Wayne Journal Gazette has a long report today -- some quotes:

Homeowners south of New Haven expected by now to share their rural neighborhood with 4,000 hogs.

That hasn’t happened – yet.

A proposed confined-feeding operation less than six miles from New Haven would have been among the county’s largest. But plans for the farm are on voluntary hold as attorneys representing the farmer and neighbors haggle over how the farm will be managed. * * *

On Aug. 15, the Indiana Department of Environmental Management approved an application by Doug Bradtmueller of 12102 Rohrbach Road to construct a building that would hold up to 4,000 hogs. Manure would be collected beneath the building in a concrete pit.

A concentrated animal feeding operation, or CAFO, involves raising hundreds to thousands of cows, pigs or chickens in environmentally controlled housing.

Supporters say concentrated feeding operations conserve land, protect animals from some predators and potential diseases and are more labor-efficient. Detractors say the waste produced by such a concentration of animals can create environmental hazards.

Charles Critchley and his daughter, Kim Linker, live in neighboring homes on Franke Road about a half-mile from the proposed site.

They appealed Bradtmueller’s application, and the issue went to the state Office of Environmental Adjudication. Bradtmueller voluntarily agreed not to begin construction while the appeal is pending.

Bradtmueller, who declined to comment for stories in August, did not return a message requesting comment this week. His attorney, Dan McInerny, of Bose McKinney Evans in Indianapolis, said Bradtmueller will continue working toward an amicable agreement with the neighbors. * * *

IDEM doesn’t regulate odors, traffic, zoning or land-use issues when it comes to concentrated animal feeding operations. Because manure collection systems on mega-farms can result in spills or runoffs that pollute surface or groundwater, the federal government requires IDEM to issue federal water permits for such farms.

The agreement being negotiated for Bradtmueller’s operation includes provisions for testing air quality and private wells on Bradtmueller’s and adjacent properties – beyond what’s required by law.

The experience has motivated Critchley to activism. He headed an effort to collect about five dozen signatures to attach to proposed legislation that failed at the Statehouse this spring.

But he has focused his efforts at the county level. He and his daughter are making recommendations to the county’s zoning board.

The advisory committee will address whether concentrated animal feeding operations should be near residences. Critchley and Linker want those types of farms to have separate zoning classifications beyond regular agricultural zoning that would protect property owners near the large farms.

Despite the stay, the experience has left both disappointed in the way the state handles applications for such farms, especially hog farms. They wonder why it’s been them – and not the Indiana Department of Environmental Management or some other governmental agency – writing regulations related to the farm’s operation.

The Department of Agriculture cites a goal of doubling hog production in the state; in 2006, permits for all types of confined feeding operations in Indiana increased by 8 1/2 percent.

Critchley believes the state too easily rubber-stamps such applications and that IDEM doesn’t do enough to regulate the farms, such as requiring testing of wells on property near where manure will be spread as fertilizer.

Posted by Marcia Oddi on June 4, 2009 09:12 AM
Posted to Environment

Ind. Courts - "Ex-Clark court workers sue: Two claim firings politically based"

Ben Zion Hershberg reports today in the Louisville Courier Journal:

Two former Clark County Circuit Court employees have filed separate lawsuits against the court and Judge Daniel Moore, claiming they were illegally fired in January for political reasons.

The former employees -- Jeremy Snelling and Chanelle Vavasseur -- are Republicans.

Moore, who took office Jan. 1, is a Democrat.

While judges often bring in new employees when they take office, it's illegal to dismiss those who aren't in "policy-making" or "confidential" positions, said lawyer Rick Fox, who represents Snelling and Vavasseur.

Neither Snelling, who was a bailiff, nor Vavasseur, who was a clerk, held such positions, Fox said. Vavasseur, in her lawsuit, also claims she was dismissed because she is African American.

Moore called the claims "absolutely frivolous."

He said he interviewed the court's four employees after he was elected as well as several others to find workers who had the skills he needed. He said he settled on his current employees because of their extensive experience as court reporters and clerks or with computer technology.

Moore also said he found Snelling's lawsuit "very ironic" after "the cruel and unnecessary devastation of the circuit court staff last June."

That was when Republican Abe Navarro was appointed by Gov. Mitch Daniels after the previous judge retired. Navarro hired Snelling and intended to hire David Buskill, who then was Clark County Republican chairman, and asked for pay increases for them. The staff shake-up and proposed pay raises prompted other judges to criticize Navarro's actions as political and discriminatory. Buskill declined the position.

Fox said the lawsuits by Snelling and Vavasseur stand on their own. He said the former court employees who were replaced by his clients obtained other court or law-firm jobs.

Fox said he doesn't know whether Snelling and Vavasseur have found work since he notified Circuit Court and other defendants that he intended to file suit. The lawsuits do not specify damage amounts.

The county and the state also were named as defendants in the lawsuits, which have not been set for hearings. County Attorney Greg Fifer said he doesn't believe the county should be included since the courts are controlled by state government. But Fox argued that the county provides some pay for court employees.

The cases initially were filed last month in Clark County Superior Courts 1 and 2 but have been moved to U.S. District Court in New Albany at the request of the Indiana attorney general's office.

Molly Butters, a spokeswoman for the office, said it generally represents judges and the state in such cases.

For background, see this list of ILB entries from 2008 re "New judge's hires stir up controversy."

Posted by Marcia Oddi on June 4, 2009 09:02 AM
Posted to Indiana Courts

Law - Fort Wayne Journal Gazette asks "Where is the outrage?"

From an editorial today:

Many of the mainstream groups opposing abortion have rightly denounced the slaying of Dr. George Tiller, recognizing the killing has tarnished the anti-abortion movement. Yet for all the people who recently spit invectives about the sanctity of life before President Obama’s visit to the University of Notre Dame in May, the denunciations of Tiller’s cold-blooded killing – in church, no less – have been fewer and more low-key.

While no mainstream group has outright endorsed the killing, some others have come close. * * *

The Journal Gazette was flooded with letters to the editor from people claiming to be pro-life who were angry that Notre Dame would honor the pro-choice president. We have yet to receive a single letter denouncing the murder of Dr. George Tiller.

“I wonder how can the people who say they are pro-life turn around and say it is justifiable,” said Dr. George Klopfer, the physician who performs abortions at the Fort Wayne Women’s Health Organization. * * *

The person who pulled the trigger and shot Tiller while he was handing out church bulletins in the foyer of the Reformation Lutheran Church just as the Sunday worship service began is most culpable. But people who claimed to be pro-life and still spewed messages of hatred for or suggested violence against Tiller or anyone else disagreeing with them over abortion need to examine their rhetoric.

Even those with calmer rhetoric too often spread misinformation about abortion. For example, Planned Parenthood is not in business making millions of dollars by performing abortions. Planned Parenthood of Indiana is a not-for-profit organization that provides reproductive health services to men and women.

Abortion is a very small segment of the services it provides. Ensuring women are able to get an annual examination and Pap smear is the most common activity at any of the 34 Planned Parenthood locations in Indiana.

Only three of the organization’s Indiana centers offer abortion, none in northeast Indiana.

Klopfer wonders why he doesn’t hear more outrage from those in the pro-life movement over Tiller’s slaying or the loss of innocent lives during the U.S. war in Iraq or the many children in Chicago killed this past year.

His questions are reasonable. Too often the shouts of those who care only about ending abortion drown out all others. The shouting makes it impossible for people to work toward reducing the need for abortion and improving life for everyone.

Posted by Marcia Oddi on June 4, 2009 08:57 AM
Posted to General Law Related

Ind. Courts - "Group challenges arrests of Notre Dame protesters"

Updating earlier ILB entries, Jeff Parrott of the South Bend Tribune reports today in a lengthy story:

SOUTH BEND — Just when Notre Dame officials thought the storm of controversy over President Barack Obama's commencement address and honorary degree had quieted, a new set of dark clouds is brewing in court this week.

A nationally prominent conservative advocacy group is gearing up for a legal battle to defend about 70 of the anti-abortion activists arrested on campus last month on misdemeanor trespass charges.

Nearly all of them are pleading not guilty in court and say they want to take their cases to trial. St. Joseph County Prosecutor Michael Dvorak said he expects some to ultimately plead guilty, but their attorney gives no such indication. * * *

The defendants are making their initial court appearances this week and Monday, Dixon said. On Tuesday, he asked the court for 30 days to file written briefs seeking dismissal of the charges based on the law, rather than the facts of the case.

In other words, the defendants won't deny they were on campus and were arrested because they refused to leave. But they might argue that police violated their constitutional rights in kicking them out and having them arrested, Dixon said.

The defendants also might argue that the university does not enjoy all of the private property rights that an individual does, he said. Dixon called the campus a "quasi-municipality" because it invites the public to enter it at any time, and it contains public amenities such as restaurants, a post office and police department whose officers have arrest powers.

The protesters might even argue that the university doesn't truly own the property, but its board holds it in trust for "the body of Christ" and all who believe in him, Dixon said.

They might argue against "selective enforcement," a term that blacks have used to challenge the constitutionality of receiving speeding tickets while white drivers who speed did not.

"Should an institution that calls itself Catholic have the authority to arrest a priest?" Dixon asked. "They arrested Father Norman Weslin (of Council Bluff, Iowa) for praying the rosary. They'll say they arrested him because he wouldn't leave, but there were people selling Obama buttons right next to him. Why weren't they asked to leave?"

Posted by Marcia Oddi on June 4, 2009 08:51 AM
Posted to Indiana Courts

Courts - "Debate on Whether Female Judges Decide Differently Arises Anew"

Neil A. Lewis writes today in the NY Times in a long article that begins:

Sandra Day O’Connor, the first woman to serve on the Supreme Court, is often quoted as saying that a wise female judge will come to the same conclusion as a wise male judge.

But the opposing argument was bolstered forcefully in April by Justice Ruth Bader Ginsburg, currently the court’s only woman, in a case involving Savana Redding, a 13-year-old girl who had been strip-searched at school by the authorities on suspicion of hiding some ibuprofen pills that may be bought over-the-counter.

“They have never been a 13-year-old girl,” Justice Ginsburg said of her eight male colleagues, several of whom had suggested during oral argument that they were not troubled by the search.

“It’s a very sensitive age for a girl,” Justice Ginsburg went on to say in an interview with USA Today. “I didn’t think that my colleagues, some of them, quite understood.”

Now that President Obama has nominated Judge Sonia Sotomayor to become the third woman in the court’s history, the question of how female judges may see and decide some cases differently is again being weighed.

Judge Sotomayor herself raised the issue of personal experience in judging and engendered mixed reviews recently for a speech she gave in 2001 in which she said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

But the idea that women may inherently view the law differently on occasion is something that troubles even several female judges who believe it may be so.

Posted by Marcia Oddi on June 4, 2009 08:42 AM
Posted to Courts in general

Ind. Decisions - More on: Supreme Court dismisses school finance plaintiffs' arguments

Updating this ILB entry from Tuesday on the Supreme Court's decision in Bonner v. Daniels, Karen Francisco of the Fort Wayne Journal Gazette has an item today in the JG blog, Learning Curve, headed "Wanted: Public ed supporters." It begins:

There's disappointing news from the Indiana Supreme Court regarding Bonner v. Daniels, the class-action suit alleging the state does not meet its constitutional obligation to provide a "general and uniform" public education system.

Marcia Oddi at Indianalawblog.com reports the state's highest court has dismissed the lawsuit.

"We conclude that the framers and ratifiers certainly sought to establish a state system of free common schools but not to create a constitutional right to be educated to a certain quality or other output standard," states the majority opinion.

Put simply: We believe the state's founders wanted to establish schools, but they didn't intend for all of them to be good schools.

The decision means the gap between the haves and the have-nots in Indiana public schools will continue.

Posted by Marcia Oddi on June 4, 2009 08:34 AM
Posted to Ind. Sup.Ct. Decisions

Law - More on "New Hampshire. Legislature Approves Gay Marriage "

Abby Goodnough of the NY Times has a comprehensive story on the new law, signed yesterday by the New Hampshire governor after the addition of some revisions related to religious freedom.

Here, via Findlaw.com, is the final text of the law. From the NYT story:

BOSTON — The New Hampshire legislature approved revisions to a same-sex marriage bill on Wednesday, and Gov. John Lynch promptly signed the legislation, making the state the sixth to let gay couples wed.

The bill had been through several permutations to satisfy Mr. Lynch and certain legislators that it would not force religious organizations that oppose same-sex marriage to participate in ceremonies celebrating it. Some groups had feared they could be sued for refusing to allow same-sex weddings on their property.

Mr. Lynch, who previously supported civil unions but not marriage for same-sex couples, said in a statement that he had heard “compelling arguments that a separate system is not an equal system.”

“Today,” he said, “we are standing up for the liberties of same-sex couples by making clear that they will receive the same rights, responsibilities — and respect — under New Hampshire law.”

The law will take effect on Jan. 1. As originally cast, the legislation exempted members of the clergy from having to perform same-sex weddings. Then Mr. Lynch, a centrist Democrat, said he would veto the bill unless the legislature added language also exempting religious groups and their employees from having to participate in such ceremonies.

Mr. Lynch also ordered that the bill protect members of religious groups from having to provide same-sex couples with religious counseling, housing designated for married people and other services relating to “the promotion of marriage.”

But the House rejected that language last month by a two-vote margin, and legislative leaders appointed a committee to negotiate a compromise.

The committee last week recommended changes further emphasizing the rights of religious groups not to participate. They include a preamble to the bill that states, “Each religious organization, association, or society has exclusive control over its own religious doctrine, policy, teachings and beliefs regarding who may marry within their faith.” * * *

As more states have legalized same-sex marriage, opponents have increasingly lobbied for “conscience protections,” language that exempts religious organizations from having to participate.

But many of the bill’s opponents believe the language adopted by New Hampshire and several other states does not go far enough because it protects only religious groups and their employees. New Hampshire’s bill does not exempt photographers or florists, for example, from having to provide services.

My thoughts: This could be tricky. Think about a law that said florists, because of their religious beliefs, could legally reject the wedding business of gay couples. Then substitute African-American couples ,,,

Posted by Marcia Oddi on June 4, 2009 08:02 AM
Posted to General Law Related

Ind. Courts - "Justice Sullivan heading to D.C. appeals court?"

So asks Terry Burns in the blog Indianapolis Times this morning.

Posted by Marcia Oddi on June 4, 2009 07:29 AM
Posted to Indiana Courts

Wednesday, June 03, 2009

Courts - More on "Judge Moves Appeal of Chrysler Sale to 2nd Circuit" [Updated]

Updating this entry from earlier today, here is the stay request filed yesterday with the 2nd Circuit by the Indiana Pensioners.

[Updated 6/4/09] "Indiana's appeal puts Chrysler deal on hold: Court to hear treasurer's argument questioning bailout," is the headline to a story this morning by Ted Evanoff on the front-page of the Indianapolis Star.

[More] Bree Fowler reports for the AP:

NEW YORK (AP) — Chrysler heads back to bankruptcy court Thursday to ask the judge overseeing its case to allow it to terminate the franchise agreements of 789 of its dealers, despite the protests of many dealers who say the move could shutter their businesses for good.

U.S. Judge Arthur Gonzalez is expected to hear testimony from Chrysler LLC executives and dealers during what's expected to be a lengthy hearing. The proceedings start at 8 a.m. EDT.

Auburn Hills, Mich.-based Chrysler maintains that it needs to reduce its dealer base by about 25 percent to a leaner network of about 2,400 dealers in order to emerge from Chapter 11 bankruptcy protection as a stronger company.

But the dealers argue that they don't cost the automaker anything. They say that if Gonzalez approves Chrysler's motion it will result in the shuttering of hundreds of dealerships and thousands of workers will lose their jobs.

A group representing about 300 of the dealers slated to lose their franchises have filed an objection. They also earlier objected to Chrysler's motion to sell the bulk of its assets to a group led by Italy's Fiat Group SpA, because it was tied to the plan to eliminate the dealerships.

Thursday's hearing comes a day ahead of Chrysler's appearance in front of the U.S. Court of Appeals for the Second Circuit in New York.

Posted by Marcia Oddi on June 3, 2009 06:26 PM
Posted to Courts in general

Law - "New Hampshire. Legislature Approves Gay Marriage "

Updating this ILB entry from May 6th, headed "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," and this long list of ILB entries on same sex marriage, the NY Times is reporting, via an AP story, that:

CONCORD, N.H. (AP) -- New Hampshire legislators approved a measure Wednesday that would make the state the sixth to allow gay marriage, and Gov. John Lynch said he would sign it later in the afternoon.

He had promised a veto if the law didn't clearly spell out that churches and religious groups would not be forced to officiate at gay marriages or provide other services.

The Senate passed the measure Wednesday, and the House -- where the outcome was more in doubt -- followed later in the day. The House gallery erupted in cheers after the 198-176 vote.

''If you have no choice as to your sex, male or female; if you have no choice as to your color; if you have no choice as to your sexual orientation; then you have to be protected and given the same opportunity for life, liberty and happiness,'' Rep. Anthony DiFruscia, R-Windham, said during the hourlong debate.

New Hampshire's law takes effect Jan. 1. Massachusetts, Connecticut, Maine, Vermont and Iowa already allow gay marriage, though Maine opponents hope to overturn that state's law with a public vote.

California briefly allowed gay marriage before a public vote banned it; a court ruling grandfathered in couples who were already married. * * *

The revised bill added a sentence specifying that all religious organizations, associations or societies have exclusive control over their religious doctrines, policies, teachings and beliefs on marriage.

It also clarified that church-related organizations that serve charitable or educational purposes are exempt from having to provide insurance and other benefits to same sex spouses of employees. The earlier version said ''charitable and educational'' instead of ''charitable or educational.''

Posted by Marcia Oddi on June 3, 2009 06:19 PM
Posted to General Law Related

Law - More on "Recession Imperils Loan Forgiveness Programs"

If you read this June 1st ILB entry with interest, then you will want to read Above the Law's post this afternoon headed "UNC School of Law Abruptly Ends Loan Repayment Assistance Program."

Posted by Marcia Oddi on June 3, 2009 05:01 PM
Posted to General Law Related

Ind. Decisions - "Ex-lawyer gets 2 years in deadly DUI," may serve 11 months

Since May 7, 2007 the ILB has followed the stories of two young Indiana attorneys, one, Teresa Perry from Evansville, charged with possessing and distributing methamphetamine; the other, Terry Record, an Indiana attorney, also from Evansville, charged with in a drunken-driving with fatality case.

As noted in this long ILB entry from April 15th, "Perry was sentenced on May 28, 2008 to 'a total of six years in the Indiana Department of Correction.'" Read Kate Braser's story here. It concludes:

Trockman said he considered that Perry was charged with a nonviolent crime, has no previous record, has engaged in voluntary treatment and is unlikely to reoffend.

However, Trockman said he was concerned that some of the drug-related activity took place at Perry's rental home near a school, and he did not believe the items found at her home and law office reflected her as merely an addict.

"And although you did not manufacture drugs in the traditional sense, you were processing them at your home and office to make them more pure," Trockman said.

"This leads me to the most troubling aspect of this crime. Ms. Perry is an addict, and may very well succeed, and we hope that she will, but addicts don't have to be as engaged in the drug culture as Ms. Perry was."

A year later, yesterday, Terry J. Record was sentenced. Jon Murray reports today in the Indianapolis Star:

A judge sentenced a former state attorney to two years in prison today for driving drunk and causing a fatal wreck.

A special prosecutor asked for the maximum eight years in prison, but Terry J. Record, 29, instead received the advisory four-year sentence with half suspended.

Marion Superior Court Pro Tem Judge Mark Jones added four years of probation, with 80 hours of community service each year; about $20,000 in restitution to the victim’s family; and a five-year license suspension — a sentence designed to punish Record and ensure that he doesn’t harm anyone else again, the judge said.

In May 2007, Record left Brad’s Brass Flamingo after sharing pitchers of beer and shots with a stripper and ran a red light at Southeastern Avenue and Pleasant Run Parkway. His red BMW, traveling 59 mph in a 35-mph zone, plowed into Jimmy R. Cash’s truck, nearly splitting it in two.

Cash, 46, a father and husband, died at the scene. * * *

Record pleaded guilty in April to a Class C felony charge of operating a vehicle while intoxicated, causing death. He avoided more serious Class B felony charges because of evidence problems related to blood tests that prompted special prosecutor Barry Brown, a former Monroe County prosecutor, to offer the plea.

He likely will win release from prison in about 11 months, with credit for good behavior and 26 days spent in jail while his case was pending.

A check of the Roll of Attorneys shows both Perry's and Record's status as "suspended;"

Posted by Marcia Oddi on June 3, 2009 04:29 PM
Posted to Ind. Trial Ct. Decisions

Law - What exactly is "data mining"?

The Fort Wayne Journal Gazette today reprints a useful article on data mining first published in the Hartford Courant. Brief quotes:

But our growing digital footprint is threatening our ability to dodge inappropriate inquiries. Through data mining, employers, insurers, advertisers and others can infer the answers to private questions without even asking.

They need two things: a heap of personal data and the techniques to crunch it. Both are readily available. * * *

Data mining relies on the principle that certain information – though useless in isolation – can take on new meaning when viewed en masse, or combined with other data. Scientists already use this technique.

There are two main approaches. First, data integration involves combining different types of data to learn something new. Consider a photograph of a bicycle: Alone, it’s an abstract representation. But tag the photo with your home location and a time stamp – and a public listing identifying the bike as stolen – and suddenly it becomes very meaningful.

A second approach is data aggregation. Gather enough of a certain type of data, and trends emerge. For instance, a cell phone’s location can be determined by tracking its signal. By aggregating enough location data from a single cell phone, we derive an increasingly reliable map of one person’s regular routes of travel. From this, we can estimate where the phone’s owner is likely to be at a given time and perhaps even guess his home location, income and so forth.

Fusing these approaches is even more powerful: that is, combining and mining multiple data sets, each very large. Google did this last year, pairing aggregate Web search queries with location and timing data to predict which regions would next come down with the flu. It outperformed the Centers for Disease Control and Prevention.

Posted by Marcia Oddi on June 3, 2009 01:34 PM
Posted to General Law Related

Ind. Decisions - "Attorney fees, treble damages to be sought by state in sidewalk case"

Updating this ILB entry from May 22nd, which quoted a report that "U.S. District Court Judge James Moody entered a default judgment in the civil case against Pastrick and former aide James Fife III," today Andy Grimm of the Gary Post-Tribune continues his reporting on Pastrick:

HAMMOND -- Former East Chicago Mayor Robert A. Pastrick could be required to pay the city and the state three times the $24 million that was spent 10 years ago on a sidewalks-for-votes scheme and pay for lawyers hired by the state to bring a civil racketeering lawsuit against him and top administration officials.

State Attorney General Greg Zoeller on Tuesday filed a brief outlining the case against Pastrick and former aide James H. Fife III. On Monday, U.S. District Judge James Moody entered a default judgment against the pair. * * *

"This case is about more than just collecting monetary damages that may or may not be paid. It is about rehabilitating the city government of East Chicago of the historic legacy of corruption from the Pastrick era," Zoeller said in a statement Tuesday.

Moody will determine the amount of damages to award after a hearing June 6 and the state is entitled to "treble damages" and attorney fees under racketeering statutes. The state hired former federal prosecutor Patrick Collins to lead their legal team, and Collins' firm so far has billed the state more than $373,000.

Twenty-five defendants were named in the lawsuit, and all but Pastrick, Fife and former city councilman Frank Kollintzas reached settlements. Kollintzas fled to Greece to avoid prison on a federal criminal conviction tied to the sidewalk scheme.

The state has collected more than $1.2 million from other defendants and have claims pending for $17 million more, Zoeller's office said. A massive judgment against Pastrick likely won't mean a significant payday for the city.

The octogenarian likely will file for bankruptcy protection, and likely has few assets the state could recover.

Posted by Marcia Oddi on June 3, 2009 01:23 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Law - "Puppy Mill Busted: Dogs taken from Harrison County farm to New Albany warehouse"

Matt Thacker of the New Albany News & Tribune reports today in a long story that begins:

Approximately 240 dogs were seized from an alleged “puppy mill” in Harrison County on Tuesday and were taken to an emergency shelter set up at a warehouse in New Albany.

With a new state law restricting “puppy mills” not going into effect until next month, the Indiana Attorney General’s office was able to obtain a search warrant to raid the farm due to suspected tax evasion by the property owners.

The warrant was executed at two adjoining properties, known as the Breezy Valley Dairy Farm, at 8605 Valley City Mauckport SW in Mauckport. The properties are owned by Virginia Garwood.

The Tribune was the first media allowed inside the shelter as the dogs were being evaluated by veterinarians for diseases and other health conditions.

Investigators from the attorney general’s office, Department of Revenue and the Indiana State Police served a search warrant that was signed by a Marion County judge on Friday. Approximately 60 volunteers from the Humane Society of the United States’ Emergency Services department and the Humane Society of Missouri removed the dogs from the property and transported them to New Albany.

Ind. Decisions - Identifying the Articles of the Indiana Constitution [Updated]

Looking at today's Court of Appeals opinion (Vaughen) and its instructive footnote 2 spelling out instances when simple redaction of confidential information is sufficient in public access filings, the ILB would be remiss if it did not also call attention to footnote 2 in yesterday's Supreme Court opinion in the case of Bonner v. Daniels.

A number of the attorneys in the case, listed on p. 1 of the opinion, were from out -of-state. Footnote 2 reads:

The plaintiffs use Roman numerals to identify the articles of the Indiana Constitution. In contrast, we refer to them by the Arabic numerals that were used by the framers. To view the original document, visit The Digital Collections of IUPUI University Library, http://indiamond6.ulib.iupui.edu/cdm4/document.php?CISOROOT=/ISC&CISOPTR=7494&REC=12 (last visited Mar. 30, 2009); for print transcript, see Charles Kettleborough, I CONSTITUTION MAKING IN INDIANA 295-375 (Ind. Historical Bureau in Indianapolis ed. 1971) (1916), available at http://www.in.gov/history/2473.htm (last visited Mar. 30, 2009).

Today's decision in Vaughen cites a 2007 Supreme Court decision in Reid v. State. In that opinion, the Arabic numeral system used by the framers is not followed -- see this quote from p. 3 of Reid, which is also quoted on p. 3 of today's Court of Appeals opinion in Vaughen:

Although a trial court may have acted within its lawful discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of a sentence through Indiana Appellate Rule 7(B), which provides that a court “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Anglemeyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). The burden is on the defendant to persuade us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006). Reid has met this burden. We conclude that his sentence is inappropriate.

Notice that Roman numerals were used in this 2007 Supreme Court opinion to identify the Articles of the Indiana Constitution.

What is the Supreme Court's statement yesterday in Bonner important? More than a matter of style, the lack of consistency in citations to our Indiana Constitution has become a significant problem in the digital age, because a search for cases that reference "Article VII", for instance, may turn up completely different[ results than a search referencing "Article 7."

[More] A reader has just sent this note:

Interesting post. Many, if not most, of the court's recent opinions have used Roman not Arabic numbers. For example, if you do a Lexis search of Indiana cases from the last five years, "Article VII, Section 4" yields 39, while "Article 7, Section 4" yields 19.

It's good to know that's not correct and presumably should change in the future. It might be helpful if the Court amended Appellate Rule 22(B) to include the proper citation form for constitutional provisions. (Nothing is mentioned currently.) Otherwise, the default is to use the Bluebook, and the Bluebook provides all of its examples in Roman. (Rule 11)

Posted by Marcia Oddi on June 3, 2009 11:49 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 12 NFP)

For publication opinions today (1):

In Joel C. Vaughen v. State of Indiana , a 5-page opinion, Judge Bailey concludes:

In light of the nature of the offense and the character of the offender, Vaughen has not convinced this Court that his sentence is inappropriate.

From earlier in the opinion:

More recently, the Court reiterated that “sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented. See id. at 1224. One purpose of appellate review is to attempt to “leaven the outliers.” Id. at 1225. “[W]hether we regard a sentence as appropriate at the end of the day turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Id. at 1224.

Page 2 of the opinion has a lengthy footnote 2 that occupies half the page. A reader has opined that perhaps it is the footnote itself that is the reason this case is a "For Publication" opinion. Here is the second paragraph of note 2:

While Ind. Administrative Rule 9(G)(1)(b)(viii) requires the complete exclusion of pre-sentence reports from public access filings, we also note there are instances when simple redaction of confidential information is sufficient. In civil cases, where the appellant's appendix is to include only those documents from the Clerk's Record that are relevant and necessary to the issues raised on appeal, App. R. 50(A)(2)(f), and in criminal cases, where the entire Clerk's Record is to be included in the appendix, App. R. 50(B)(1)(a), the rules provide that when only a portion of a document contains information that must be excluded from public access, such information may be redacted from the document, App. R. 9(J); T.R. 5(G)(2). If, for instance, a relevant document in a dissolution case includes a bank account number that is to be excluded from public access, the bank account number or address, neither of which is relevant to the disposition of the appeal, could be redacted without a wholesale inclusion of those documents in a green appendix. If the information cannot be redacted or if the information is relevant to the issues raised on appeal, then the entire document can and should be included in a green appendix.

NFP civil opinions today (4):

Robert Evans, et al v. Richardson Wildlife Sanctuary, Inc. (NFP) - "Richardson Wildlife Sanctuary, Inc. (“RWS”), a non-profit organization, attempted to create a wildlife sanctuary in the town of Dune Acres, Indiana. After the Dune Acres Town Council denied RWS permission to create the sanctuary, three Dune Acres couples brought suit against RWS, seeking a preliminary injunction to stop RWS from altering the property further and to force RWS to remove the structures it had already built. Upon RWS? motion, the trial court dismissed the complaint for failure to state a claim. The plaintiffs then filed both an amended complaint and a motion to correct errors and reconsider. The trial court denied the motion to correct errors and reconsider, and the plaintiffs appeal the dismissal of their complaints. We affirm the dismissal of their complaints for failure to state a claim upon which relief can be granted. "

Thomas E. Cowdrey, Jr. v. Wendy Bryant (NFP) - "When we acknowledge the substance of Cowdrey’s action, it becomes clear that he is attempting to clarify or modify the terms of the warranty deed based upon an antecedent agreement between himself and Bryant. Stated another way, by issuing the warranty deed, Cowdrey has promised to the world that he would defend Bryant’s ownership of the property from all competing claims, but now Cowdrey is trying to compete with Bryant’s claim. The parol evidence rule does not permit Cowdrey to use our courts to facilitate such a contradiction of actions. Therefore, we must affirm the trial court’s grant of summary judgment to Bryant. "

In the Matter of the Term. of the Parent-Child Rel. of S.C.; A.M. v. Indiana Dept. of Child Svcs. (NFP)

In the Matter of: Ka.S. and Ke.S.; B.M. v. Marion Co. Dept. of Child Svcs. (NFP)

NFP criminal opinions today (8):

Dante Webb v. State of Indiana (NFP)

Adam M. Wagner v. State of Indiana (NFP)

Danny L. Wilbert v. State of Indiana (NFP)

Filiberto Reyes v. State of Indiana (NFP)

Shawn L. Arnold v. State of Indiana (NFP)

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

Sharon L. Gidden v. State of Indiana (NFP)

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

Posted by Marcia Oddi on June 3, 2009 11:17 AM
Posted to Ind. App.Ct. Decisions

Courts - More on "Judge Moves Appeal of Chrysler Sale to 2nd Circuit" [Updated]

Updating this ILB entry from yesterday, Tomoeh Murakami Tse of the Washington Post reports today in a story that begins:

NEW YORK, June 3 -- A federal appeals court agreed late Tuesday night to hear an appeal from a group of lenders seeking to block the sale of Chrysler's assets, a move that could delay the automaker's exit from bankruptcy proceedings.

The U.S. Court of Appeals for the Second Circuit accepted the appeal from a coalition of Indiana pension funds that has sought to block the sale of most of Chrysler's assets to a group led by Italian automaker Fiat, according to Chris Conner, spokesman for Indiana State Treasurer's Office.

A hearing is scheduled for Friday, Conner said. * * *

The appeal throws an element of uncertainty into the Obama administration's carefully orchestrated plan to speed the ailing automaker through bankruptcy court.

Chrysler won approval for its reorganization late Sunday night, when U.S. Bankruptcy Judge Arthur J. Gonzalez set aside the objections of lenders and dealers and ruled in favor of the government plan, just 31 days after the company filed for Chapter 11 protection.

Gonzalez said Tuesday that the case could be heard by the appeals court, skipping district court, which normally would be the next stop for an appeal of a bankruptcy ruling. It was a move that had been sought by Chrysler, which wants the process to move as quickly as possible.

[Updated at 3:15 PM] See this story from Bloomberg News for more on the scheduling.

Posted by Marcia Oddi on June 3, 2009 09:10 AM
Posted to Courts in general

Ind. Decisions - More on: 7th Circuit rules on Illinois municipalities' ban on handguns

Updating yesterday's ILB entry is this story today by Tony Mauro of the National Law Journal, headlined "7th Circuit Ruling Agrees With Sotomayor on Second Amendment." Some quotes:

The 7th U.S. Circuit Court of Appeals on Tuesday ruled that the Second Amendment right to bear arms cannot be held to restrict state gun control laws until the Supreme Court rules that the right applies to the states.

As a result, the ruling in National Rifle Association v. Chicago will likely give Supreme Court nominee Sonia Sotomayor some much-needed political cover against criticism of a similar Second Amendment ruling she joined in on the 2nd Circuit earlier this year, Maloney v. Cuomo. In that case, using the same reasoning, the 2nd Circuit panel upheld a New York ban on numchucks, weapons made of two bars joined by a cord. Tuesday's ruling by 7th Circuit Chief Judge Frank Easterbrook specifically states, "We agree with Maloney." Judge Richard Posner, like Easterbrook a leading conservative on the court, joined the ruling as did Judge William Bauer. * * *

The ruling Tuesday deepens a circuit split on the issue that will almost certainly draw the attention of the Supreme Court. While both the New York and Chicago rulings go against incorporation, the 9th Circuit's decision April 20 in Nordyke v. King did apply the Second Amendment to the states. Nordyke is under consideration for en banc review. Petitioners in the New York case, now titled Maloney v. Rice, have until June 29 to file their appeal to the Supreme Court. If that is the case the Court agrees to review to resolve the split, and if Sotomayor is confirmed as a justice, custom would keep her from participating because she ruled on it below. But if another case becomes the vehicle for the next major Second Amendment ruling, she could join in.

Posted by Marcia Oddi on June 3, 2009 08:57 AM
Posted to Ind. (7th Cir.) Decisions

Courts - "In MySpace Cases, Appellate Judges Wrestle With Possible Split"

Updating yesterday's ILB entry, Shannon P. Duffy of The Legal Intelligencer reports today in a long story that begins:

Providing a rare study in contrasts, the federal courts in Pennsylvania have had markedly different reactions to two strikingly similar First Amendment cases involving students who were disciplined for ridiculing their principals by creating fake profile pages on MySpace.com.

The American Civil Liberties Union of Pennsylvania has sided with the students in both cases, arguing that since the parody profiles were created outside of school, the school officials had no right to impose any discipline.

So far, the ACLU has won one case and lost the other. And now it appears likely that the appellate judges are also inclined to disagree. Remarks from two oral arguments revealed a sharp split among the judges about how to view the ever-evolving issue of student free speech cases within the context of the Internet and social networking sites.

If the disagreements prove to be sharp enough, it could force the appellate court to sit en banc, with one or both cases being argued before a 14-judge panel.

Posted by Marcia Oddi on June 3, 2009 08:52 AM
Posted to Courts in general

Tuesday, June 02, 2009

Courts - "Prison Cell-Phone Use a Growing Problem"

On May 29th the ILB posted this most recent entry on banning cell phones in courthouses. But earlier last week, Time had a report by Tom McNichol on cell phones in prison -- a problem that rarely raised concerns until recently. Some quotes:

Drugs and weapons aren't the only contraband in prisons these days. The latest underground currency among inmates is an item most of us consider harmless: the cell phone. And so far, prison officials are fighting a losing battle to keep inmates from obtaining cell phones and using them to communicate with people both inside and outside prison walls.

In California, home to the country's largest state prison system, more than 2,800 cell phones were confiscated from inmates last year, double the number seized in 2007. But the problem isn't limited to California. State and federal prisons across the country are grappling with what officials say is an epidemic of cell-phone use among inmates

"The problem has quickly gotten out of control nationwide," says Republican Congressman Kevin Brady of Texas, who in January introduced a House bill that would permit the jamming of cell-phone signals within prison walls. "Criminals are using cell phones even from death row to threaten victims and harass lawmakers. Inmates are making literally thousands of calls from prison." * * *

Inmates sometimes use cell phones to keep in touch with friends and family on the outside — collect calls made from inside prison facilities are notoriously expensive. But officials say inevitably cell phones are also being used to orchestrate crimes, harass witnesses, organize retaliation against other inmates and even order hits.

Posted by Marcia Oddi on June 2, 2009 05:11 PM
Posted to Courts in general

Courts - Still more on: "Florida high school student files complaint after suspension for creating Facebook page critical of teacher"

Updating this Dec. 11, 2008 ILB entry, MaryClaire Dale reports today in the Washington Post, under the headline "ACLU defends girl's lewd MySpace principal parody." Some quotes:

PHILADELPHIA -- A federal appeals court must decide whether a Pennsylvania middle school can suspend a student who, at home on her own time, created a lewd MySpace page about her principal.

The Web page, which boasted a fake name but an actual photo of the principal, was purported to have been posted by a 40-year-old Alabama school principal who described himself, through a string of sexual vulgarities, as a pedophile and sex addict. The Internet address included the phrase "kids rock my bed."

The case, argued in the 3rd U.S. Circuit Court of Appeals on Tuesday, raises broad issues about the limits of school discipline for off-campus behavior that affects the atmosphere at school. A rash of similar cases have surfaced across the country, with mixed rulings, but none has reached the U.S. Supreme Court.

The American Civil Liberties Union argues that students enjoy free-speech rights off-campus that protect such parodies, however vulgar.

"Parents give up some control at the schoolhouse gate," Mary Catherine Roper, an ACLU lawyer in Pennsylvania, told the appeals court judges. "When the students walk back out, they again are under control of their parents."

However, a lawyer for the Blue Mountain School District in Schuylkill County said the student's actions caused a disturbance that reverberated inside school and harmed the principal. Students were buzzing about the site for several days, and school administrators quickly became aware of it. * * *

[Judge D. Michael Fisher] nonetheless cautioned Blue Mountain about the price it might pay for winning the case.

"Do we want our school districts to become Internet police?" Fisher asked.

The Supreme Court has said that students enjoy some free-speech rights, such as the right to wear black armbands to protest the Vietnam War, while rejecting the right to lace a school speech with sexual innuendo.

In 2007, the high court upheld sanctions against a student from Alaska who carried a "Bong Hits 4 Jesus" sign at an off-campus school outing, reasoning that the student was promoting illegal drugs.

In a case nearly identical to the Blue Mountain case, a different 3rd Circuit panel is weighing a MySpace parody of a western Pennsylvania school principal that was argued in December. And in New York, the 2nd Circuit has upheld school discipline in two off-campus Internet speech cases after finding the disruption at the schools was "foreseeable."

Posted by Marcia Oddi on June 2, 2009 05:00 PM
Posted to Courts in general

Environment - "EPA cites BP's Whiting refinery for Clean Air Act violations"

Posted this afternoon by the NWI Times, the story begins:

CHICAGO | BP's Whiting Refinery emitted a cancer-causing toxin in excess of federal standands from 2003 to 2008 which at times reached 16 times the acceptable limit, the U.S. Environmental Protection Agency alleged Tuesday.

The EPA alleges that for calendar years 2003 through 2008, BP failed to manage and treat benzene waste from the facility as required by the national emission standards for hazardous air pollutants. The facility’s 2008 report showed benzene waste was almost 16 times the amount allowed.

The story links to the federal NOV.

Posted by Marcia Oddi on June 2, 2009 03:30 PM
Posted to Environment

Courts - "Judge Moves Appeal of Chrysler Sale to 2nd Circuit"

Updating this entry from yesterday, the NY Times is reporting this afternoon via its DealBook Blog:

A federal judge on Tuesday ordered an appeal of Chrysler’s sale to Fiat be heard by the Second Circuit Court of Appeals, a move lawyers for the American carmaker had sought in an effort to fast-track the deal.

Normally, appeals to bankruptcy court decisions are heard in federal district court, which sits directly above bankruptcy court in the judicial hierarchy. But cases may be moved directly to the appeals court if a judge finds the need to do so necessary.

Judge Arthur J. Gonzalez, who has overseen the Chapter 11 case, wrote in his order: “This case involves a matter of public importance, and an immediate appeal may materially advance the progress of this case.”

The appeal was filed by lawyers for a group of Indiana pension funds, who objected to the sale because they are seeking more compensation for the Chrysler secured debt that they hold. * * *

Late Sunday night, Judge Gonzalez approved Chrysler’s sale to Fiat, overruling the objections by the Indiana funds and others. On Monday night, he agreed to shorten a customary 10-day stay of the sale to four days, allowing Chrysler to complete the transaction by Friday at noon.

Should that happen, the Indiana funds would likely receive only damages if the appeals court rules in their favor, rather than an unwinding of the deal.

Posted by Marcia Oddi on June 2, 2009 01:26 PM
Posted to Courts in general

Ind. Decisions - Supreme Court dismisses school finance plaintiffs' arguments

In Joseph and LaTanya Bonner, et al v. Mitch Daniels, et al, a 14-page, 4-1 opinion, Justice Dickson writes:

The plaintiffs/appellants, a group of Indiana public school students, appeal the trial court's dismissal of their complaint, which sought a declaratory judgment to establish that the Indiana Constitution imposes an enforceable duty on state government to provide a standard of quality education to public school students and that such duty is not being satisfied. The Court of Appeals reversed. Bonner v. Daniels, 885 N.E.2d 673 (Ind. Ct. App. 2008). We granted transfer and now affirm the trial court. Although recognizing the Indiana Constitution directs the General Assembly to establish a general and uniform system of public schools, we hold that it does not mandate any judicially enforceable standard of quality, and to the extent that an individual student has a right, entitlement, or privilege to pursue public education, this derives from the enactments of the General Assembly, not from the Indiana Constitution.

The Court relies on " Indiana Trial Rule 12(B)(6) [which] permits dismissal for '[f]ailure to state a claim upon which relief can be granted.'" From the end of the majority opinion:

By its own terms, Article 8, concerning education, does not speak in terms of a right or entitlement to education. * * * To the extent that an individual student may have a right, entitlement, or privilege to pursue public education, any such right derives from the enactments of the General Assembly, not from the Indiana Constitution.

We conclude that the framers and ratifiers certainly sought to establish a state system of free common schools but not to create a constitutional right to be educated to a certain quality or other output standard. In the absence of such a constitutional right to receive an adequate public education, the plaintiffs are not entitled to the declaratory relief sought regarding the Equal Privileges or Due Course of Law Clauses of the Indiana Constitution.

Conclusion. We hold that the facts stated by the plaintiffs' complaint, even if taken as true, would not support the relief requested and we therefore affirm the trial court's judgment granting the defendants' motion to dismiss.

Shepard, C.J., and Sullivan, J., concur.
Boehm, J., concurs in result with separate opinion. [which begins on p. 10]
Rucker, J., dissents with separate opinion. [which begins on p. 13]

[Justice Boehm's concurring opinion concludes:] In sum, the problems of Indiana’s system of funding public schools may be as severe as the plaintiffs allege, but I see no reasonable prospect of a judicial remedy that would be effective and properly balance the many considerations involved in redesigning the state’s educational system. The most the courts could order would be to direct the legislative and executive branches to go back to the drawing board and try again to construct an improved and constitutionally acceptable system of common schools. Because we are unable to articulate any clear or even vague direction as to what standards to apply in that endeavor, the courts should acknowledge that adequacy of education, like the level of taxation, is a matter the Constitution reserves to the legislative branch. I therefore concur in the majority’s ruling that this complaint must be dismissed.

[Justice Rucker's dissent concludes:] I readily concede that whether plaintiffs can prevail in a trial on the merits of their complaint, or indeed whether they can survive summary judgment, is an open question. But to say in effect that plaintiffs have not presented a justiciable issue is simply wrong in my view. I would therefore reverse the trial court’s grant of the defendant’s motion to dismiss, and allow this matter to proceed.

Posted by Marcia Oddi on June 2, 2009 12:26 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit rules on Illinois municipalities' ban on handguns

In NRA v. City of Chicago (ND Ill.), Chief Judge Easterbrook writes an interesting, 9-page opinion that begins:

Two municipalities in Illinois ban the possession of most handguns. After the Supreme Court held in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), that the second amendment entitles people to keep handguns at home for self-protection, several suits were filed against Chicago and Oak Park. All were dismissed on the ground that Heller dealt with a law enacted under the authority of the national government, while Chicago and Oak Park are subordinate bodies of a state. The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542 (1876); Presser v. Illinois, 116 U.S. 252 (1886); Miller v. Texas, 153 U.S. 535 (1894). The district judge thought that only the Supreme Court may change course. 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008). * * *
Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete. Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009). We agree with Maloney, which followed our own decision in Quilici v. Morton Grove, 695 F.2d 261 (7th Cir. 1982). * * *
Affirmed.

Posted by Marcia Oddi on June 2, 2009 11:31 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

For publication opinions today (1):

In Frederick William LaCava v. Daniel and Geoffrey LaCava, a 20-page opinion, Judge Robb writes:

Frederick William LaCava was sued by his adopted adult sons, Daniel and Geoffrey, for damages arising out of Frederick's alleged molestation of them when they were children. Frederick filed a motion for summary judgment alleging that the complaint was filed after the running of the statute of limitations. Frederick appeals the trial court's denial of his motion, raising four issues that we consolidate and restate as two: 1) whether Daniel and Geoffrey's claims are barred by the statute of limitations, and 2) whether, in the absence of expert opinion evidence regarding Daniel and Geoffrey's claims of repressed memory, their complaint can withstand summary judgment. Daniel and Geoffrey cross-appeal the trial court?s denial of their third motion for extension of time to respond to Frederick?s motion for summary judgment, alleging the trial court abused its discretion in denying them an extension for the purpose of gathering expert opinion evidence.

Concluding that issues of fact preclude summary judgment in Frederick's favor on the statute of limitations and that Daniel and Geoffrey did not need to designate expert opinion evidence to refute Frederick?s motion for summary judgment because of the position Frederick took with respect to their request for additional time to procure such evidence, we affirm. * * *

The parties agree that the statute of limitations applicable to Daniel and Geoffrey's action is found at Indiana Code section 34-11-2-4: “An action for . . . injury to person or character . . . must be commenced within two (2) years after the cause of action accrues.” Because Daniel and Geoffrey were minors when they were allegedly molested by Frederick, Indiana Code section 34-11-6-1, which provides that a “person who is under legal disabilities when the cause of action accrues may bring the action within two (2) years after the disability is removed,” also comes into play. A person is considered “under legal disabilities” if that person is less than eighteen years of age. Ind. Code § 1-1-4-5(24). Daniel turned eighteen on September 12, 1997, making his presumptive statute of limitations September 12, 1999. Geoffrey turned eighteen on January 23, 1999, making his presumptive statute of limitations January 23, 2001. The lawsuit was filed on June 21, 2005.

A cause of action in a tort claim accrues and the statute of limitations begins to run. [ILB - see discussion of fraudulent concealment docnine on pp. 11-12] * * *

Conclusion. Genuine issues of material fact regarding whether the applicable statute of limitations should be extended pursuant to the fraudulent concealment doctrine preclude summary judgment in Frederick's favor. Moreover, expert opinion testimony was not required to refute Frederick's motion because of the nature of Frederick's opposition to Daniel and Geoffrey's request for time to procure expert evidence. Accordingly, the trial court's order denying summary judgment is affirmed, and this case is remanded to the trial court for further proceedings. Affirmed.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on June 2, 2009 10:06 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Updating: Training on new loan modification programs [Updated]

Updating this ILB entry from March 13th, which set out the schedule for the first round of seminars available to Indiana attorneys for education on how to handle mortgage foreclosure cases, a complete summer "Calendar of Upcoming Training Opportunities" all across the state is now available online. A press release today begins:

More than 25 training sessions designed for Indiana attorneys, mediators and judges to help homeowners facing foreclosure are scheduled for the summer months. The first session of the “Back Home In Indiana--Guiding Homeowners Through Foreclosure” campaign is June 3rd in Noblesville.

Posted by Marcia Oddi on June 2, 2009 09:52 AM
Posted to Indiana Courts

Courts - "Big Issues Lurk Below Surface of Sotomayor Confirmation Hearings"

That is the headline to a lengthy article by Marcia Coyle of The National Law Journal, posted June 1, 2009. This part particularly caught my eye:

Sentencing scholar Douglas Berman of Ohio State's Moritz College of Law and author of the Sentencing blog, calls "inevitable" senators' questions about the death penalty and the Second Amendment and gun control.

Sotomayor is already drawing heavy criticism from gun rights advocates because of a panel decision that she joined in January, holding that prior Supreme Court precedent saying that the Second Amendment only applied at the federal level is still binding law: Maloney v. Cuomo.

But, Berman said, "what senators should be talking about is technology," seeking her views on microchip implants in felons, videoconferencing in prisons to conduct initial medical diagnoses and other functions, and the use of DVDs containing victim impact statements in death penalty and other trials.

"Almost invariably, technology has pros and cons, but this is the future," he said. "We're already working through GPS tracking of sex offenders. It's only a matter of time -- in fact, I think it's happening in Europe -- whether we implant microchips in every felon so we can keep track of them. Having a healthy respect for the benefits and the detriments of technology is extraordinarily important now in a new justice."

Posted by Marcia Oddi on June 2, 2009 09:40 AM
Posted to Courts in general

Ind. Law - "Break for property taxes"

The Fort Wayne Journal Gazette has this editorial this morning, calling for a one-year reassessment delay:

Believe it for not, there was a time when Hoosiers could expect to receive their property tax bills each April. Half the bill was due in May, the other half in November.

Most years, property owners could expect a modest increase. And they knew that every five years, their properties would be reassessed, which could cause a bigger change in their bills.

But a generation of Hoosier homeowners has never known such stability.

In the decade since the Indiana Supreme Court rightly threw out the state’s property assessment system, getting and paying property tax bills has been anything but routine.

The first reassessment after the court ruling was late. Since then, changes in property tax laws and assessment procedures have produced wild fluctuations in tax bill dates and amounts nearly every year. Indeed, though the General Assembly “fixed” property taxes a year ago, only a handful of Indiana counties have mailed out tax bills this year – even though they were due in April.

Residents of most Indiana counties are still waiting for their bills – Allen County property owners may get theirs in late July, 3 1/2 months late.

With local officials struggling to complete the work to get out the 2009 bills – and to get going on 2010 bills so they are not late – they are also legally obligated to begin another complete property reassessment July 1 for the bills that will go out in 2012.

Those 2009 and 2010 bills must account for the complex and still-unknown effects of property tax caps. As the caps get lower, they will have more effect on the bills. Enough already.

A common-sense proposal to give all assessment officials a chance to catch up almost made it through this past session of the General Assembly but was tripped up by language technicalities. Lawmakers should adopt the proposed one-year delay in reassessment as part of the budget bill they need to pass in special session by June 30 to avert a state government shutdown.

Though the budget bill may well be the only piece of legislation lawmakers consider during the special session, the one-year delay directly affects all local government budgets and is appropriate for inclusion in the budget legislation.

Posted by Marcia Oddi on June 2, 2009 09:37 AM
Posted to Indiana Law

Monday, June 01, 2009

Law - "Abortion Doctor Murder: A Threat to Access?"

Deborah Kotz, senior writer for U.S. News & World Report, has a column today on abortion access. Some quotes:

News that abortion provider George Tiller was gunned down yesterday in his church should make every woman sit up and take notice. Despite having a president and Congress who favor abortion rights and a new Supreme Court nominee who presumably does as well, the safety and support of healthcare practitioners who provide them are obviously critical if women are going to have access. * * *

I've had a hard time getting gynecologists to speak on the record about whether women in this country are having a harder time gaining access to abortions; one doctor told me that he didn't want his name or academic affiliation used for fear that he might have grant money withheld if he's associated with the procedure. It's no wonder the number of doctors performing abortions is dwindling.

Meantime, states are marching forward with their own efforts to limit a woman's access to abortion services. While they can't outlaw abortion outright under Roe v. Wade, state legislators can make it more difficult for women to obtain abortions. Indiana, for instance, has a bill pending that would require doctors who perform abortions to have admitting privileges at a hospital. Of the seven physicians performing abortions in Indiana, only one doctor has admitting privileges at a hospital, according to the Indianapolis Star.

A May report from the Guttmacher Institute provides this rundown of state laws currently on the books. Some make sense as a way to protect the well-being of pregnant women; others seem intended to restrict access to abortions.
Physician and Hospital Requirements: 38 states require an abortion to be performed by a licensed physician. 19 states require an abortion to be performed in a hospital after a specified point in the pregnancy, and 18 states require the involvement of a second physician after a specified point.

Gestational Limits: 36 states prohibit abortions, generally except when necessary to protect the woman's life or health, after a specified point in pregnancy, most often fetal viability.

"Partial-Birth" Abortion: 15 states have laws in effect that prohibit "partial-birth" abortion. 4 of these laws apply only to post-viability abortions.

Public Funding: 17 states use their own funds to pay for all or most medically necessary abortions for Medicaid enrollees in the state. 32 states and the District of Columbia prohibit the use of state funds except in those cases when federal funds are available: where the woman's life is in danger or the pregnancy is the result of rape or incest. In defiance of federal requirements, South Dakota limits funding to cases of life endangerment only.

Coverage by Private Insurance: 4 states restrict coverage of abortion in private insurance plans to cases in which the woman's life would be endangered if the pregnancy were carried to term. Additional abortion coverage is permitted only if the woman purchases it at her own expense.

Refusal: 46 states allow individual health care providers to refuse to participate in an abortion. 43 states allow institutions to refuse to perform abortions, 16 of which limit refusal to private or religious institutions.

State-Mandated Counseling: 17 states mandate that women be given counseling before an abortion that includes information on at least one of the following: the purported link between abortion and breast cancer (6 states), the ability of a fetus to feel pain (8 states), long-term mental health consequences for the woman (7 states) or information on the availability of ultrasound (6 states).

Waiting Periods: 24 states require a woman seeking an abortion to wait a specified period of time, usually 24 hours, between when she receives counseling and the procedure is performed. 6 of these states have laws that effectively require the woman make two separate trips to the clinic to obtain the procedure.

Re the Indiana bill, SB 89, the South Bend Tribune reported on April 30th 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."

Posted by Marcia Oddi on June 1, 2009 03:38 PM
Posted to General Law Related | Indiana Law

Ind. Decisions - Still more on: Court of Appeals affirms Muncie Mayor Sharon McShurley's election

Updating this ILB entry from May 29th, which quoted a Muncie Star-Press editorial headlined "Please end this now, Jim," the Star-Press is now reporting "2007 mayoral race over; Mansfield ends appeals." Rick Yencer's brief report this afternoon begins:

Democrat James Mansfield won‘t appeal a recent court ruling upholding Republican Mayor Sharon McShurley’s November 2007 election as the city’s chief executive.

“To continue the effort through the court system is likely to achieve similar results,” Mansfield said. “Therefore, I have decided not to appeal the ruling.”

The Indiana Court Appeals affirmed a trial court’s decision last week to deny Mansfield’s request for a special election for disenfranchised vpters in Precinct 46, where absentee ballots were disqualified.

The appeals court found that Mansfield never alleged any circumstance that made it impossible to determine who received the most legal votes.

Posted by Marcia Oddi on June 1, 2009 03:29 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 29, 2009

Here is the Clerk's transfer list for the week ending May 29, 2009. It is two pages long.

One case was granted transfer, David A. Shotts v. State of Indiana, discussed in this ILB entry May 28th.
________

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. Note that the search is now current through the May 22nd list.

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 June 1, 2009 02:33 PM
Posted to Indiana Transfer Lists

Law - "Recession Imperils Loan Forgiveness Programs"

The NY Times has this story, by Jonathan D. Glater, on May 26th. A quote:

From Kentucky to Iowa to California, loan forgiveness programs are on the chopping block. Typically founded by their states to help students pay for college, the state agencies and nonprofit organizations that make student loans and sponsor these programs are getting less money from the federal government and are having difficulty raising money elsewhere as a result of the financial crisis.

The organizations say the repayment programs have been hurt by a broader effort by Congress to tackle the high cost of the federal student loan program by reducing subsidies to lenders.

Curbing the programs will make it harder to lure college graduates into high-value but often low-paying fields like teaching and nursing. * * *

The Kentucky Higher Education Student Loan Corporation is at the extreme in cutting payments to people in midstream who have already finished their educations and are repaying loans, but organizations in many other states have curtailed their new offers to prospective teachers, nurses and others.

On May 29th the NY Times had this story, headed "Students Relying on Loans Wonder Whether Forgiveness Will Last." The long article was reported by Jonathan D. Glater, Ron Lieber, Tara Siegel Bernard and Paul Sullivan and written by Mr. Glater and Mr. Lieber. Some quotes:

If you want to become a public defender, Georgetown University can be a great place to get your legal education. So Heather Gatnarek expects to take on well over $100,000 of debt to get her law degree there and hopes to graduate in three years.

Here’s the problem, though. She’s relying on a new federal program that forgives part of the student loan debt for graduates who enter public service fields. And she was scared out of her mind when she read a New York Times article on Wednesday on problems in Kentucky, where significant cuts in one of its loan forgiveness programs have put thousands of indebted public school teachers and nurses in a painful financial squeeze.

“I would be completely up a creek” without a loan forgiveness program, Ms. Gatnarek said. “I don’t know what I would do. Marry someone rich, I guess. People say that I could just do corporate law for a few years, but I wouldn’t last two days.” * * *

The good news here is that the federal Department of Education says that almost all its loan forgiveness programs are safe. “It doesn’t depend on some future Congress for us to come through on most of these,” said Robert Shireman, deputy undersecretary of education. “The majority of them get appropriations for the life of the programs.”

But many states say that financing their loan forgiveness programs depends on state budgets. Given declining tax revenues, that doesn’t inspire much confidence. On Thursday, for instance, Gov. M. Jodi Rell of Connecticut proposed cutting the state’s minority teacher grant program, which awards a stipend that is intended to help students pay off their loans, said Constance Fraser, a Connecticut Department of Higher Education spokeswoman.

From there, the article becomes pro-active, addressing students directly:

So this is where you come in. We’ve created an interactive table at nytimes.com/yourmoney with everything we’ve found so far. If your lender (or law firm or other employer) is not there and you’d like us to ask them to state whether they intend to stand behind their loan forgiveness program, write to yourmoney@nytimes.com.

We intend to finish this database in the next few weeks and then leave it up, with updates, as a sort of reality check.

Meanwhile, a few tips for those of you who are thinking about borrowing a big pile of money or are in the middle of doing so. If you live in a state where loan forgiveness may be in jeopardy, call your state representatives and read them the riot act. It’s hard to imagine that the cuts in the Kentucky program, for instance, will stand. Ken Winters, a Republican state senator there, said he expected the issue of financing for the program to come up in January. We’ll be watching.

Also, ask tough questions when any program is making what seems to be a promise on loan forgiveness. Which loans are eligible? All student loans or only certain types? Is there a limit on the debt that can be forgiven? Is the program guaranteed? By whom? With what funds? For precisely which kinds of public service? Must you apply, and is it selective? And finally, is there a federal program that may make up for some of your state’s forgiveness, even if the federal benefits aren’t as generous?

We hate to get all “X-Files” on you, but Trust No One. Sure, The Truth May Be Out There, but it sure seems as if the truth can change in ways that can cost innocent public servants tens of thousands of dollars.

So far, the Indiana section of the interactive table is blank.

Thanks to Above the Law for highlighting the NYT stories.

As I read the Times story, federal student loan forgiveness programs, such as the John R. Justice Prosecutors and Defenders Act (see earlier ILB entries about this program), are not in danger.

Posted by Marcia Oddi on June 1, 2009 01:59 PM
Posted to General Law Related

Courts - North Carolina Judge reprimanded for ex parte "friending" of attorney for the defense

Ryan Jones of the Lexington, North Carolina Dispatch, reports today:

After a formal investigation by the North Carolina Judicial Standards Commission, District Court Judge B. Carlton Terry Jr. was issued a public reprimand for using the social networking site Facebook to discuss a case being tried before him.

According to the public reprimand, which was issued April 1, Terry presided over a child custody and child support hearing from Sept. 9 to Sept. 12, 2008, in Iredell County. During this time, Terry and Charles A. Shieck, attorney for the defendant, became “friends” on Facebook and began posting messages referring to aspects of the case, such as when it would be settled and whether or not one of the parties had been guilty of an affair.

Terry was also cited for using the search engine Google to conduct independent research on the plaintiff’s business Web site even though it had never been offered or entered into evidence during the hearing. * * *

According to the reprimand, the Judicial Standards Commission found that “Judge Terry’s actions constitute conduct prejudicial to the administration of justice that brings the judicial office into disrepute.”

Also according to the reprimand, Terry agreed that he would refrain from repeating such action in the future, familiarize himself with the Code of Judicial Conduct and refrain from retaliating against any person who cooperated with the commission in the matter.

As mentioned in this May 7th ILB entry, Ind. Code of Judicial Conduct Rule 2.9(C) provides:

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.

Posted by Marcia Oddi on June 1, 2009 01:40 PM
Posted to Courts in general

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

In U.S. v. Lewis (ND Ind. Judge Springmann), a 12-page opinion, Judge Evans affirmed the district court. Here is a quote:

The strange manner in which the DVD was admitted into the record precludes Lewis from successfully meeting this burden. There is no evidence in the record that the jury ever heard Lewis’s statement about the prior robbery. No portions of the DVD were played for the jury. And although two officers testified about the interrogation, neither mentioned Lewis’s prior conviction. The unredacted DVD—rife with references to the prior conviction—was nonetheless admitted into evidence, and the jury had access to a DVD player during its deliberation. But there is no way to know (from the record before us) if the jury actually watched the DVD, let alone the parts that include Lewis’s admissions. The jury deliberated for a little less than four hours, which, after accounting for even a minimal amount of time for discussion, suggests that it did not view the whole thing even if it viewed any portion of it at all. Lewis must prove that the admission of the evidence resulted in an “actual miscarriage of justice,” Avila, 557 F.3d at 820 (emphasis added), which is impossible since it’s questionable whether the jury actually watched the DVD.

Posted by Marcia Oddi on June 1, 2009 01:26 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Timothy Hathaway v. State of Indiana, an 8-page opinion, Sr. Judge Barteau writes:

Timothy Hathaway (“Hathaway”) appeals from his conviction after a bench trial of unlawful possession of a firearm by a serious violent felon, a Class B felony. Hathaway presents the following restated issue for our review: whether the trial court erred by allowing into evidence a firearm recovered during a warrantless search of the car Hathaway was driving when he was arrested for driving while suspended, violating the Fourth Amendment of the United States Constitution and § 11 of the Indiana Constitution. We reverse and remand. * * *

Hathaway argues that the handgun found during the warrantless search of the vehicle he was driving should have been suppressed and should not have been admitted at trial. Hathaway contends that since the search was invalid, the handgun should have been suppressed, and its admission into evidence was harmful error, requiring a reversal of his conviction for possession of a firearm by a serious violent felon. * * *

When a search or seizure is conducted without a warrant, the State bears the burden of proving that an exception to the warrant requirement existed at the time of the search or seizure. Id. Here, Officer Wilkerson testified that the search was a combination of a search incident to arrest and an inventory search prior to towing the vehicle. * * *

Here, there were no facts to indicate that Officer Wilkerson needed to search the car in order to find and preserve evidence connected to the crime of driving while suspended. * * * Under the facts of this case, the search of the vehicle incident to Hathaway's arrest for driving while suspended was unreasonable under the Indiana constitution. Furthermore, the United States Supreme Court has granted certiorari in Meister and has remanded the matter to this Court for reconsideration in light of the holding in Gant. * * *

Because the search of the vehicle Hathaway was driving incident to his arrest for driving while suspended was unreasonable under the Fourth Amendment to the United States Constitution and Article I, section 11 of the Indiana Constitution, we reverse Hathaway's conviction and sentence for unlawful possession of a firearm by a serious violent felon and order that the same be vacated.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Anthony R. Bradford v. State of Indiana (NFP)

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

Court - Blogger Tom Goldstein featured in Washington Post

Howard Kutz's Washington Post media column today features Tom Goldstein, founder of ScotusBlog. Some quotes from the long article:

What makes the brash and balding 38-year-old such a hot media property is Scotusblog, the Web site he founded six years ago to obsessively track the high court. At 7:34 a.m. last Tuesday, an hour before news of the nomination leaked, he posted an essay on the likely lines of attack if President Obama picked Sotomayor. Had he guessed wrong, Goldstein says, he would have looked like "the world's biggest idiot. I was out there on a limb."

Three years ago, Goldstein joined the blue-chip Washington firm of Akin Gump, which also agreed to take on Scotusblog and is listed as the site's host. Despite the unorthodox arrangement, Goldstein says his staff, which includes veteran Supreme Court reporter Lyle Denniston, has complete independence. "Lyle could write that our clients are completely insane and evil and there'd be nothing to stop him," Goldstein says in his 12th-floor office with a sweeping view of the Washington Monument.

Denniston, part of a nine-person staff of lawyers and researchers, likes the arrangement: "Tom leaves me alone in all respects. I have no assignments, no deadlines, no second-guessing."

Goldstein makes some concessions to his profession. He recently moved Akin Gump clients from the blog's list of "Petitions to Watch" at the high court, putting them at the bottom to avoid an appearance of favoritism. And Goldstein says he would stay silent rather than trash a court nominee who was likely to be confirmed. "My ethical role as a lawyer is not to wound my client," he says.

One measure of Goldstein's commitment to Scotusblog, which accepts no advertising: He keeps it afloat with up to $100,000 a year from his own pocket. "He's got some serious pride of ownership," says Goldstein's wife, lawyer Amy Howe, who also blogs at the site. "You've created this institution that people read pretty widely. He is the puppet master." The blog recorded 115,000 hits on the day of Sotomayor's nomination -- more than quadruple its usual traffic.

The blog is "enormously helpful to us," says Akin Gump Chairman Bruce McLean, because lawyers and potential clients see it as "directly connected to the prestige of the firm." The same is true, he says, for Goldstein's media profile. The New York Times, Los Angeles Times, Washington Post, USA Today and Chicago Tribune all quoted Goldstein on Sotomayor.

"He's very adept at being first or nearly first in terms of offering a quick take," says Joan Biskupic, Supreme Court reporter for USA Today. "He's got a very good knack for both the law and the needs of journalists on all things legal. He also knows how to distill things that help people understand what the law's about."

A former intern for Nina Totenberg at National Public Radio, Goldstein buttressed his reputation as a soothsayer in 2005 by writing on the morning that George W. Bush picked Harriet Miers that her nomination was doomed. Goldstein is a Democrat, but journalists regard him as an honest broker. He has, for instance, praised Clarence Thomas as an underrated justice. * * *

Footnote: Scotusblog got shout-outs yesterday on both "This Week" and "Face the Nation." Not bad for a fairly dense legal blog.

Posted by Marcia Oddi on June 1, 2009 08:41 AM
Posted to Courts in general

Law - More on: Chicago Mayor Dailey privatizes City parking meters

Updating this ILB entry from Dec. 6, 2008, you may wonder, how has the privatization turned out?

A story in the Saturday NY Times displayed the answer with this rhyming headline: "Long a Driver’s Curse, Chicago Parking Gets Worse ." Some quotes:

CHICAGO — Motorists here long ago learned how to park a fine line.

Miss the diagonal markings on your spot? That’s a $50 violation. More than 12 inches from the curb? $25, payable to the city. Two overdue tickets? You’re getting a boot.

But while every city has its vehicular regulations, Chicago under Mayor Richard M. Daley has earned the reputation of being ruthlessly demanding on motorists as a way to collect much-needed revenue, particularly when it comes to the city’s parking meters.

Now, the city is suffering what seems like a motorists’ meltdown. * * *

In an effort to plug a gaping budget deficit, Mr. Daley pushed a deal through the City Council a few months ago that privatized management of the parking meters for 75 years in exchange for a lump-sum payment of $1.15 billion.

In some areas, rates then rose fourfold. At most meters, there was no more free parking on holidays or Sundays, and some meters must be fed 24 hours a day, seven days a week.

Most vexing to drivers, however, is that thousands of newly installed credit-card and coin-taking parking meters simply do not work. They have been charging the wrong rates, failing to issue receipts (the only proof of payment) or not accepting money.

On Wednesday, so many of the downtown meters were out of order and spewing out error messages that the city did the unthinkable: it stopped writing parking tickets.

And covering it all is The Expired Meter Blog.

Posted by Marcia Oddi on June 1, 2009 08:27 AM
Posted to General Law Related

Ind. Law - "It's the Law: Indiana Good Samaritans are protected from civil liability"

Ken Kosky's NWI Times' "It's the Law" column today looks at Indiana's Good Samaritan law. Some quotes:

Indiana law generally does not require people to be Good Samaritans, but it does protect those who help a fellow citizen in need.

The law states that a person who comes upon the scene of an emergency or accident and who "in good faith, gratuitously renders emergency care ... is immune from civil liability for any personal injury that results ... ."

Porter County Prosecutor Brian Gensel said the law is designed to let people do the right thing without fear of being sued.

"People don't want to be sued for getting involved and trying to help somebody," Gensel said.

"If the actions of a Good Samaritan are reasonable under the circumstances, this statute would protect them from civil liability."

The protection stands unless the Good Samaritan's actions amount to "gross negligence or willful or wanton misconduct," the law states.

Although people are generally protected if they get involved, Indiana law generally does not require people to do things like save a drowning person, perform CPR on a person who has collapsed or pull a person from a burning car. And people who have information that could help solve a crime are not required to come forward.

Still, Gensel said the law does require people who know of or witness abuse to a child or elderly person to report it to law enforcement. And people who are ordered to assist a police officer can be charged with refusal to aid an officer.

Here are two columns we missed:

"It's the Law: Don't mix boating and alcohol" published on May 18th.

"It's the Law: The law prohibiting junk vehicles" published on May 25th.

Posted by Marcia Oddi on June 1, 2009 08:12 AM
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 6/1/09):

None currently scheduled.

Next week's oral arguments before the Supreme Court (week of 6/8/09):

Thursday, June 11th

9:00 AM - Robert E. Money v. State of Indiana - In a "blind plea," Money pleaded guilty to a class A felony and to being an habitual offender. The Floyd Superior Court denied post-conviction relief on Money's claim that counsel had been ineffective for failing to advise Money he had not been eligible for an habitual offender enhancement. The Court of Appeals affirmed in an unpublished memorandum decision. Money has petitioned the Supreme Court to accept jurisdiction over the appeal. [Money v. State (Ind. Ct. App. Dec. 18, 2008)]
9:45 AM - Suzanne Hamilton v. Richard W. Hamilton - Suzanne Hamilton filed an action in Indiana to enforce a Florida court order requiring Richard Hamilton to pay child support. The Vanderburgh Superior Court entered multiple orders that found Richard in contempt, but stayed the related jail sentence on condition Richard made child support payments in an amount less than that ordered by the Florida court. On Suzanne's appeal from such an order, the Court of Appeals affirmed, concluding the Superior Court had not modified the Florida child support order in violation of the Uniform Interstate Family Support Act and Richard was not in contempt of the Superior Court order. Hamilton v. Hamilton, 895 N.E.2d 397 (Ind. Ct. App. Oct. 29, 2008), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

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

This week's oral arguments before the Court of Appeals (week of 6/1/09):

None currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 6/8/09):

Tuesday, June 9th

1:30 PM - Ruben Maldonado vs. State of Indiana - This is a post-conviction being appealed by appellant. Whether or not the post-conviction court was incorrect to find the evidence which was barred was covered by the Rape Shield Statute. The Scheduled Panel Members are: Chief Judge Baker, Judges May and Barnes. [Where: Indiana Court of Appeals Courtroom -- WEBCAST]

Wednesday, June 10th

2:00 PM - Daniel Reed vs. State of Indiana - A jury convicted Daniel J. Reed, Jr., of class A felony dealing in methamphetamine; class D felony neglect of a dependent; and class A misdemeanor possession of marijuana. In this direct appeal, he raises the following issues: (1) that the State's initial dismissal of a class B felony dealing in methamphetamine charge and subsequent refiling of the charge as a class A felony violated his substantial rights and his right to a speedy trial; (2) that the trial court erred in admitting illegally-obtained evidence; and (3) that his sentence is inappropriate pursuant to Indiana Appellate Rule 7(B). The Scheduled Panel Members are: Judges Riley, Darden and Barnes. [Where: Indiana Court of Appeals Courtroom -- WEBCAST]

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

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 June 1, 2009 08:00 AM
Posted to Upcoming Oral Arguments

Courts - "Judge Clears Way for Sale of Chrysler to Fiat"

So reports Michael J. de la Merced of the NY Times in this story:

A federal judge on Sunday night cleared a path for Chrysler to exit bankruptcy by approving a sale of most of the carmaker’s assets to a new entity to be run by Fiat of Italy.

Judge Arthur J. Gonzalez of the United States Bankruptcy Court for the Southern District of New York approved the government-backed plan after three days of marathon hearings on the proposal. On Friday, testimony and arguments in federal bankruptcy court in Manhattan lasted nearly 12 hours. * * *

Even with the approval, the deal’s closing could be delayed. Lawyers for three Indiana state funds are expected to appeal the decision. And an automatic 10-day stay is in effect to allow for any appeal, though Chrysler’s lawyers will almost certainly seek to shorten that period.

The three funds, which include pensions for Indiana teachers and police offers, have objected to the sale, arguing that they deserve more than the 29 cents on the dollar that they and other secured lenders will receive as repayment. Chrysler holds about $6.9 billion in secured debt; of that, the Indiana funds hold about $42.5 million, or about 1 percent. They acquired those holdings in July 2008 for 43 cents on the dollar.

Lawyers for these funds have questioned whether Chrysler could have fetched a better deal than the Fiat transaction or through a liquidation.

Other objectors included several groups of Chrysler dealers, representing some of the 789 that will be cut as part of the Fiat sale. These groups argued that Fiat should be forced to accept more dealers, or that the deal should be delayed to give them more time to change Fiat’s mind.

Posted by Marcia Oddi on June 1, 2009 06:02 AM
Posted to Courts in general

Sunday, May 31, 2009

Ind. Gov't. - $40 million spent since passage of 2007 law meant as a bridge to help retired legislators and state employees until they qualify for Medicare

The Indianapolis Star's Behind Closed Doors today has an eye-opening story on the costs of 2007's SEA 501:

A state health insurance plan meant as a bridge to help retired legislators and state employees until they qualify for Medicare may be on the ropes. And more state workers are opting to retire sooner rather than later because of that.

The plan was passed in Senate Enrolled Act 501 in 2007 by legislators who had scrapped a controversial and very generous health plan for themselves. In general, it pays retirees about $1,000 for every year they were employed by the state.

The budget proposal that Gov. Mitch Daniels made in January did not include funding to continue the plan, though the version the legislature put forth included $64.4 million to fund the program for 2010 and 2011.

That budget proposal is dead, however, and with a new revenue forecast showing the state likely taking in $1.1 billion less than expected in 2009, 2010 and 2011, the chances of the insurance plan being funded aren't good.

State Budget Director Chris Ruhl said there will be no money to fund the benefit for state employees in the budget proposal the governor will deliver to lawmakers Tuesday. There will, however, be proposed funding for retiring lawmakers, Ruhl said, as this was the deal made when they gave up those more generous health benefits.

Ruhl said about 1,500 people are in or will be in the plan this year. The average cost per participant has been about $26,000 -- or about $40 million in total so far.

"You can see the reason we're not so fond of this," Ruhl said. "It's expensive."

Expectations that the plan will be eliminated have prompted some state employees to retire now, while they can still get the benefit. * * *

Legislators, though, may have the last word on this -- and so far, at least, they have been advocates of keeping the plan.

Some background. See this April 24, 2007 ILB entry is headed "Governor announces he will sign legislative pay raise," and this April 29, 2007 entry headed "Budget threatened by new legislative pay provision."

Here is how Niki Kelly of the Fort Wayne Journal Gazette described the new health care benefit in an April 25th, 2007 story:

The governor also signed Senate Bill 501, a companion bill that establishes a retirement medical benefits account for state employees of all three branches of government as well as elected and appointed officers.

Legislators previously had authorized a special state-supported retirement health plan for only themselves. But it became a sensitive political issue, and they officially repealed it in the pay raise bill.

As a result, though, the General Assembly decided to set up a similar plan for all retiring state employees or elected officials who have served at least 10 years.

It requires the state to make annual contributions to the account based on the age of the employee, from $500 for employees younger than 30 to $1,400 for employees 50 or older.

In addition, there is a “catch-up” provision for any state employee retiring with at least 15 years of service or elected officer with at least 10 years of service. This supplemental contribution – meant to beef up the account in the first 10 years of existence – would be $1,000 for every year of service.

The catch-up would expire in 2018.

Money in the account can be used for health care costs of all kinds after retirement, including insurance premiums. If there is a balance in the account when the employee reaches 65, the money can be used to supplement Medicare coverage.

Senate President Pro Tem David Long, R-Fort Wayne, said although legislators would be eligible “this is really more for state employees” to bridge the gap between retirement and Medicare coverage.

One more thing -- in 2007 retiring state employees not old enough to qualify for Medicare would lose access to affordable group insurance coverage after the 18-months of Cobra access had terminated. The federal law relating to Cobra coverage has now been expanded. What is the impact here?

Posted by Marcia Oddi on May 31, 2009 09:04 AM
Posted to Indiana Government | Legislative Benefits

Saturday, May 30, 2009

Courts - "Federal judges' group puts big cases on fast track"

Deborah Yetter of the Louisville Courier Journal has a story today on the federal Judicial Panel on Multidistrict Litigation. It begins:

The collapse of New York financier Bernard Madoff's multibillion-dollar Ponzi scheme created shock waves among investors around the world.

A few of those waves rippled into Kentucky this week as lawyers argued about the best place to try some of the scores of lawsuits generated by what's been called one of the world's largest financial swindles.

Seven federal judges who make up the Judicial Panel on Multidistrict Litigation met for two days in Louisville to consider the best place to decide several of the nation's biggest and most complicated cases. Topics ranged from elaborate financial fraud of the Madoff-related cases to more mundane cases involving subjects such as cable television, drywall, denture cream and even Victoria's Secret lingerie.

"It's an interesting job -- it's fascinating," said U.S. District Judge John G. Heyburn II, who as chairman was host for the first Louisville meeting in 20 years of the group of seven judges better known as the MDL Panel.

The main goal of the panel is to consolidate multiple lawsuits from across the country before a single judge, to simplify proceedings and eliminate possible conflicting outcomes from different jurisdictions. The process reduces appeals and speeds resolution of cases.

The panel, which meets every two months, began hearing cases Wednesday. When members adjourned Thursday, judges had heard from about 100 lawyers arguing about whether 30 cases -- some involving hundreds of lawsuits -- should be consolidated in a single city before a single judge.

Posted by Marcia Oddi on May 30, 2009 01:19 PM
Posted to Courts in general

Ind. Law - Fort Wayne JG editorial on legalizing golf carts

The most recent earlier ILB entry on golf carts on public streets was posted May 27th. Today the Fort Wayne Journal Gazette has this editorial:

While other issues rightly received more attention, the Indiana General Assembly took action in its recently ended session that was not so widely reported and that offers a common-sense solution to a safety issue facing an increasing number of Hoosiers:

Golf carts.

More and more people are using them for basic short-distance transportation. But last year, the Indiana State Police made it clear they would enforce laws regulating them. Those laws, practically speaking, essentially banned golf carts from streets. The laws required golf carts to have license plates if they are used on public streets and roads. And to be eligible for a license plate, a cart had to have basic safety equipment, including seat belts, windshield wipers, lights and turn signals.

A statewide policy is problematic. If they’re used on relatively quiet streets and roads, golf carts can be practical, inexpensive, non-polluting and convenient transportation. On busier streets and highways, though, they are a safety hazard.

So lawmakers arrived at the reasonable solution of giving individual cities and towns the power to legalize golf carts on local streets beginning July 1.

At their discretion, city and town councils can decide whether the carts should be legal and, if so, whether they must display a slow-moving vehicle sign or have a flashing yellow or red light. Operators must have driver’s licenses.

The matter had become an issue in towns like Hamilton, north of Fort Wayne. Officials there had previously legalized golf carts, unaware that current state law prohibited them. The mayor of Mitchell, south of Bedford in Lawrence County, encouraged citizens to drive golf carts – until a resident was ticketed by the county sheriff’s department.

Bluffton is among area communities considering allowing golf carts.

Local street conditions differ widely, and the legislature was right to give local officials power to legalize golf carts rather than trying to craft a one-size-fits-all law.

With the golf cart issue settled, lawmakers should next year turn to another form of transportation that is even more widely used – often illegally – and the subject of confusing state laws:

Scooters and mopeds.

Posted by Marcia Oddi on May 30, 2009 01:05 PM
Posted to Indiana Law

Environment - "Petitions filed to appeal federal water permits for megadairies"

This story today in the Richmond Palladium-Item reports:

Federal wastewater permits approved earlier this month for two area megadairies have been appealed.
Advertisement

Petitions for administrative review of the Indiana Department of Environmental Management's decision to issue permits to Liberty Dairy LLC in Union County and Union-Go Dairy in Randolph County have been filed with the Office of Environmental Adjudication (ODA), said India Davidson, ODA legal assistant.

The 24 petitioners seeking review of the Liberty Dairy permit hired the Columbus, Ind., law firm Kline King and King to represent them. Their petition asks for administrative review of the permit decision, an adjudicatory hearing and a stay.

The petition was filed May 22 with ODA, one day before the deadline.

No dates have been set in that case because no attorney has been assigned to the case by the Indiana Attorney General's office to represent IDEM, OEA officials said.

Five appeals of Union-Go Dairy's permit were filed by Randolph County residents. Residents Allen and Judy Hutchinson, Curtis Ramer, Stephanie Pflasterer, Wendy Carpenter and Richard and Barbara Pegg are representing themselves, Davidson said.

OEA is waiting for any additional appeals to arrive that were mailed prior to the May 19 appeals deadline before making any determination on whether those appeals meet agency requirements, Davidson said.

Liberty Dairy's National Pollution Discharge Elimination System permit allows the construction of a 2,500-cow dairy in Harrison Township in Union County. Construction on that dairy isn't expected to begin until next year.

Union-Go Dairy, a 1,650-cow dairy, would be allowed to build new lagoons in the first phase of expansion for which the permit was issued. In phase 2, the dairy will submit a plan to address problems with the existing lagoon.

Here are earlier ILB entries on Liberty Dairy and Union-Go Dairy.

Posted by Marcia Oddi on May 30, 2009 12:59 PM
Posted to Environment

Courts - DC Circuit refuses to review ruling on Indiana rail line

The South Bend Tribune has posted this AP story:

WASHINGTON, D.C. (AP) — A U.S. appeals court on Friday declined to review a federal board's decision rejecting a request by the city of South Bend and the Brothers of Holy Cross to have two interconnected rail lines declared abandoned.

In 2006, the city and priests asked the federal Surface Transportation Board to declare the 3.7-mile rail line abandoned because it is no longer used or maintained by Norfolk Southern. The request was made after officials with South Bend Railway announced it wanted to buy and refurbish the line and use it for freight service, including possibly delivering coal to a power plant at the University of Notre Dame and perhaps eventually to transport fans to Notre Dame football games.

Notre Dame officials said at the time the school was not interested. The city argued that it could use the land for sewers if the line was abandoned.

The Surface Transportation Board, though, said it was in the public interest to preserve the lines because Notre Dame in the future might accept the coal by rail.

The city and priests argued the board's decision was arbitrary and capricious. The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said the board acted reasonably.

Posted by Marcia Oddi on May 30, 2009 12:18 PM
Posted to Courts in general

Friday, May 29, 2009

Ind. Decisions - "Duke Energy Ordered to Shut Indiana Coal Power Units"

Andrew M. Harris reports for Bloomberg News:

Cinergy Corp., now part of Duke Energy Corp., was ordered by a U.S. judge to shut three Indiana power-station units for federal Clean Air Act violations incurred during renovations more than 17 years ago.

U.S. District Judge Larry J. McKinney in Indianapolis issued the directive today, ending the second phase of a 2008 trial at which a jury found Cinergy modified the coal-fired facilities without installing best-available pollution controls.

Citing increased sulfur dioxide emissions from the units, McKinney’s 58-page ruling ordered them shut no later than Sept. 30.

Duke Energy acquired Cinergy three years ago. The units in question are part of its Wabash River power station, located near Terre Haute, McKinney said. The six-unit plant first came on line in 1953, according to the company’s Web site.

A second Indianapolis federal court jury this month found Cinergy had violated U.S. environmental regulations at two power units at its Gallagher Station in New Albany, Indiana, on the north bank of the Ohio River near Louisville, Kentucky.

That jury found in favor of the company on four other plant modifications that the U.S. government said exceeded ordinary maintenance, bringing them within the scope of the emissions regulations.

Here is today's 58-page opinion.

Here are earlier ILB Cinergy entries.

[More] Here is the Duke Energy news release on Judge McKinney's ruling.

Posted by Marcia Oddi on May 29, 2009 08:02 PM
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Decisions - 7th Circuit's CJ Easterbrook rules in chambers on secrecy issue

In Milam v. Dominick's Finer Foods (ND Ill., Judge Lefkow), a 3 -page in-chambers ruling posted today with the notation "This opinion is being released initially in typescript," and dated May 27th, Chief Judge Easterbrook writes:

A chambers opinion issued earlier this month invited appellees to tell me whether they plan to defend their judgment on the ground that the district judge should not have revived the case by granting plaintiffs’ motion under Fed. R. Civ. P. 60(b)(1). I observed that, if they advance such a contention, then I must decide whether the basis of the district court’s decision can remain secret. The opinion added: “If appellees inform me that they plan to challenge the district judge’s Rule 60 decision, appellants may file a response within seven days.” United States v. Foster, No. 09-1248 (7th Cir. May 1, 2009), slip op. 6 (Easterbrook, C.J., in chambers). * * *
The question at hand is whether information sealed in the district court should remain under seal in this court. Here is the relevant portion of my earlier opinion:
* * * Plaintiffs ask us to maintain the affidavit under seal, because (they say) it “would potentially cause embarrassment and affect [coun- sel’s] personal and professional reputation by disclosing personal matters”. Although the motion cites Baxter International, it does not contend that confidentiality is justified by any statute or privilege. Yet the district court did not explain why it has forbidden public access to this document.
Rule 60(b)(1) permits a judgment to be reopened because of “excus- able neglect”. Just what the “neglect” entailed, and why it was “ex- cusable,” are questions in which the public has a legitimate interest when they underlie a judicial decision. * * *
What plaintiffs now contend is that the affidavit should be removed from the appellate record. Plaintiffs say that, because the district judge did not give a reason either for dismissing the case or for reinstating it under Rule 60(b)(1), Dominick’s cannot demonstrate that the judge abused her discretion and therefore has nothing to gain from contesting the judge’s order. That means, plaintiffs insist, that the affidavit is not important to the appeal.
Yet an unreasoned decision is easier to upset on appeal than a carefully explained one. The judge did not explain the initial order dismissing the suit (an apparent violation of Circuit Rule 50), did not explain the decision to seal the affidavit, and did not explain the grant of relief under Rule 60(b)(1). What is more, Dominick’s contends (and plaintiffs do not deny) that the district judge refused to allow defense counsel to see the affidavit that plaintiffs tendered in support of their Rule 60(b)(1) motion. Dominick’s therefore had no means to oppose the motion. A judicial decision based on information that has been withheld from counsel (in addition to the parties and the public) is extraordinary and requires a compelling justification, which no one in this case has articulated.
This appeal cannot proceed in an orderly fashion under a veil of unexplained secrecy. My earlier opinion explained why secrecy appears to be unwarranted, and I take plaintiffs’ silence in their response as acknowledgment. The affidavit therefore is unsealed and placed in the public record.

Posted by Marcia Oddi on May 29, 2009 04:44 PM
Posted to Ind. (7th Cir.) Decisions

Courts - Yet another reason to ban cellphones in court rooms?

Updating this ILB entry from May 15th, and a long list of earlier ILB entries on bannning cell phones in courthouses, Dareh Gregorian of the New York Post (yes, the Post) has a story today headed "Oh, what a twit! Tweeting Roker sorry for taking juror pix." Some quotes:

Al Roker showed up for jury duty yesterday in Manhattan Criminal Court -- but by the end of the day, he was the one feeling guilty.

The "Today" show weatherman touched off a tempest by taking iPhone pictures from the jury assembly room and posting them to Twitter, in contravention of courthouse rules.

One of the photos showed fellow potential jurors from the back, while in another, one potential juror's face could be seen.

The once-portly TV personality wound up apologizing to officials in the courthouse after word about the faux pas made the rounds.

Roker acknowledged making "a mistake" but said it was "inadvertent."

"Folks need to lighten up," he said in a later Twitter posting. "I'm not breaking laws . . . just trying to share the experience of jury duty. One that I think is important and everyone should take part in."

David Bookstaver, a spokesman for the state Office of Court Administration, said the picture taking and posting was "ill advised" but noted that Roker hadn't taken any pictures in a courtroom or of any sworn jurors.

"No harm was done," Bookstaver said, adding: "What's more important is this shows Al came to do his civic duty, and we're happy about that. It's a good example that nobody's exempt."

Posted by Marcia Oddi on May 29, 2009 03:21 PM
Posted to Courts in general

Ind. Decisions - More on: Court of Appeals affirms Muncie Mayor Sharon McShurley's election

The Muncie Star-Press has an editorial today headed "Please end this now, Jim."

We've said it before, and we're saying it again, the continuation of Mansfield vs. McShurley is not in Muncie's best interest.

Democratic mayoral candidate Jim Mansfield lost another round Thursday with the decision from the Indiana Court of Appeals. The court affirmed the trial court's decision that denied Mansfield's effort to hold a special election for disenfranchised voters in Precinct 46, where 19 absentee ballots were tossed out.

The appeals court ruled Mansfield never alleged any circumstance that made it impossible to determine who received the most legal votes.

Early indications are Mansfield and his supporters will appeal the case to the Indiana Supreme Court, which could push any final resolution into 2010 or possibly even 2011, when the city will be in the midst of a new mayoral election.

McShurley's recount win was based on an apparent error in the election room, compounded by a quirk in Indiana law that left Mansfield unable to appeal the reversal after the recount. It also cost 19 voters in Precinct 46 their voices in the election.

It is understandable, then, that Mansfield would want to take his appeal as far as possible in order to draw attention to the flaw in election law and perhaps force the Indiana General Assembly to fix it. At the same time, he is taking up the flag for the predominantly Democratic Precinct 46.

The problem lies in prolonging the lawsuit and the uncertainty about the legitimacy of the Muncie mayor for as much as another year or more. It's undermining the authority of McShurley as mayor and clearly affecting her ability to deal with the city's present budget crisis.

Enough is enough. Since the suit has already dragged on long enough to get the attention of legislators who could change Indiana election law, an appeal would do little more than continue to line the pockets of the attorneys involved. Legal fees already total in the tens of thousands of dollars.

That doesn't have much of an impact on Mansfield, whose attorney is being paid by his union supporters, but McShurley has been footing the bill herself, mostly through fundraisers.

At this critical time, a mayor who is distracted by mounting legal fees, the need to organize fundraisers and a simmering antagonism toward Democrats is not what Muncie needs, especially since the bottom line would be the same regardless of who is mayor. The city is losing millions of dollars in tax revenue over the next two years that will result employee layoffs and cuts in city services.

The city is in a crisis, and we all -- Democrats, Republicans and everyone else -- must put aside our grievances and work together to find solutions.

We hope Jim Mansfield decides to do what's best for all of the residents of Muncie and end his lawsuit.

Posted by Marcia Oddi on May 29, 2009 02:08 PM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Kokomo Perspective having trouble accessing Howard County emails

Tim Turner reported in the Kokomo Perspective on May 28th under the headline "County refuses newspaper's request for public records: City says it’s complying; county calls request ‘pathetic’":

Faced with the possibly of having to provide copies of county employees' e-mails to the public, the county commissioners recently changed its ordinance regarding public access to those e-mails, and now taxpayers will be paying for someone to sort work-related e-mails from personal e-mails.

The ordinance change was made in response to a request made by this newspaper in regards to accessing e-mails sent and received by county elected officials and department heads. The county denied the Perspective's request. County attorney Larry Murrell called part of the newspaper's request "a pathetic and misguided attempt on your part to cast aspersions on the county for the time and effort it may spend to honor your request. As such, it is an abuse of the Access to Public Records Act." The newspaper has filed a formal complaint against the county and requested the Public Access Counselor to determine if the county's refusal adheres to state law. The counselor will make a decision on June 9.

The rest of the very long story is worth reading, but too long for the ILB - let's hope the Perspective keeps it online.

The story is accompanied by this editorial dated May 28th:

Government e-mails are public record. That's what the law says, but it's never as simple as that. In the information age, more and more of the business of operating government is done via e-mail and the Internet. As such, the taxpayers have a right to know how this is taking place.

That is the central issue in the Perspective's requests to Howard County and the city of Kokomo for the e-mails generated by elected officials and department heads. The county has denied that information to us, and so we are challenging its decision through the state's public access counselor. You have a right to the information we requested. We are attempting to obtain it. * * *

We agree with the county that some e-mails are not public, such as those containing confidential information like personnel records or discussions of pending litigations. We would argue that communicating these issues via e-mail is irresponsible, but the e-mails would be protected in those cases.

We understand that the state's public access counselor has ruled that personal communication on the public's e-mail system is exempt from disclosure. We may not agree with the ruling. In fact, we believe this is a misuse of public resources that is specifically limited, if not forbidden, by the county's electronic use policy. We may believe that such a ruling should be challenged. But we don't fault the county for denying those records.

On the issue of providing an accounting of Web site visits by particular individuals, if the county does not maintain such a record, we agree that it has no responsibility to create a new record upon our request. Perhaps the county should review how it archives electronic information to protect the system from misuse and to better enable it to fulfill a public records request in the future.

However, on the most important point - reasonable particularity - the Perspective must challenge the denial. We believe we have been specific enough in our request for the county to be able to reasonably reply. We are not under any requirement to identify what information we are seeking within the record, and the county is not required to ferret out such information.

We have asked for a particular range of information from a specific and limited set of records. Whether that range is one day or 100 days shouldn't have an impact of the reasonableness of the request. Whether the set of records is e-mail from one public officials or 20 public officials also has no impact on reasonableness. If the record exists, and it can be accessed without undue hardship, then the request is reasonably particular.

If the record does not exist, then we are willing to revise our request to a smaller or more specific set of records. Only that would be reasonable grounds for denial, in our opinion.

Why does any of this matter? It matters because our government is established for the benefit of the people. It is funded by the people, and it serves to represent all of our interests - not its own interests. You have a right to know how government operates, how it utilizes the resources you provide to it, and how it spends the money you give to it in the form of taxes.

To accept the county's records denial is to accept that the public has no right to see how one aspect of government operates. It allows a shroud of darkness to exist. We aren't saying that government is abusing the public trust in this area. We just want to make sure that the potential for abuse doesn't exist.

Posted by Marcia Oddi on May 29, 2009 01:52 PM
Posted to Indiana Government

Ind. Gov't. - Continuing on: "Pension Funds Object to Chrysler Sale, Want Trustee"

An interesting editorial today in the Fort Wayne Journal Gazette:

Mourdock blamed the Obama administration’s brokering of the Chrysler bankruptcy for state investment losses, saying the deal that gives holders of secured Chrysler bonds 29 cents on the dollar will cost two Indiana state government funds and a separate teachers retirement fund more than $5.5 million. “It’s just flat-out wrong – it’s infuriating to me,” Mourdock said. “It’s not right that state policemen and teachers suffer this loss.”

The loss Mourdock detailed compares what the three funds are set to receive under the bankruptcy to the bonds’ full face value. But the investment funds were unlikely to receive full value for the bonds under any scenario. What Mourdock didn’t tell Hoosiers was that the funds he mentioned bought the bonds for an average of 43 cents on the dollar. All told, the three funds paid $17 million for the bonds and will receive an estimated $15 million, for a loss of $2 million, not the $5.6 million Mourdock alleged.

“Indiana’s pensioners should not be punished as a result of investment managers making historically sound decisions,” Mourdock said. “The managers did nothing wrong, but the portfolios have been victimized due to the actions of the federal government in the Chrysler bankruptcy.”

Whether buying Chrysler bonds was a “sound decision” is debatable. Mourdock, a Republican, failed to mention the state and the teachers retirement fund bought the bonds in July 2008, a time when the rest of the world’s financial communities knew Chrysler was in trouble. Daimler-Benz sold Chrysler the year before at a huge loss. Eight months before Indiana bought the bonds, Chrysler announced plans to eliminate 12,000 jobs and four vehicle models. * * *

Chrysler asks whether Mourdock was driven by finances or politics. The real finances point directly to politics.

Note in this ILB entry from yesterday that in addition to the Indiana Treasurer [not AG], the Attorneys General of Ohio and Illinois are also objecting "in the U.S. Bankruptcy Court for Southern New York to the sale of Chrysler LLC's assets to Italian automaker Fiat SpA, [albiet] in an effort to protect workers in their states."

Posted by Marcia Oddi on May 29, 2009 01:33 PM
Posted to Indiana Government

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

In Lucero v. Nettle Creek School Corp. (SD Ind., Judge Young), a 24-page opinion, Judge Flaum writes:

Plaintiff Sharon Lucero taught English to 12th grade students during the 2003-04 school year. In the summer of 2004, she was assigned to teach English to 7th graders instead. Following her reassignment, Lucero filed discrimination charges against her school system, its administrators, and members of the school board of trustees. Lucero brought eleven separate claims. The district court granted summary judgment for defen- dants on all claims. Lucero appealed, and we now affirm. * * *
Based on the evidence in the record, summary judgment in favor of defendants was proper on Lucero’s retaliation, discrimination, hostile work environment, and breach of contract claims. Moreover, the district court did not abuse its discretion in striking Lucero’s first brief in response to defendants’ motion for summary judgment. We AFFIRM the decision of the district court.

Posted by Marcia Oddi on May 29, 2009 11:42 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 14 NFP)

For publication opinions today (4):

In Mark P. Franciose, et al v. Aaron A. Jones, a 25-page opinion, Judge Vaidik writes:

While driving through snowy weather, Ray Ramirez, III, lost control of his truck and crashed into guardrails on both sides of an interstate highway. The truck became stuck in the passing lane of the interstate. The occupants of the truck made their way to the side of the interstate. After another motorist stopped her car to block traffic and two semi-trucks created a barrier between the stranded truck and approaching traffic, Aaron A. Jones, one of Ramirez‘s passengers, approached Ramirez‘s truck to push it off the interstate so that other motorists would not crash into it. Mark P. Franciose came upon the traffic jam, drove his car on the shoulder of the interstate, and hit Jones, causing injuries. Jones sued Franciose and Ramirez. During the jury trial, Franciose unsuccessfully objected to the testimony of Jones‘s expert witness. The jury found in Jones‘s favor and awarded damages against both defendants. Both defendants appeal. Among other things, we conclude that Franciose did not sufficiently alert the trial court that he desired an inquiry pursuant to Indiana Evidence Rule 702(b) on the admissibility of Jones‘s expert witness‘s testimony. Further, we conclude that the superseding cause doctrine does not require reversal of the jury‘s verdict against Ramirez. We affirm.

In In the Matter of M.D., J.D., and H.D.; Indiana Dept. of Child Svcs. v. B.D. and T.D., a 5-page opinion, Judge Kirsch writes:

The Indiana Department of Child Services (“DCS”) appeals from the trial court’s order dismissing, pursuant to Indiana Trial Rule 41(B), its petitions alleging that M.D., J.D., and H.D. (“the children”) were Children in Need of Services (“CHINS”). DCS raises the following restated issues: whether the trial court erred when it dismissed the CHINS petition concerning the children because sufficient evidence existed to support a CHINS finding. * * *

A fact-finding hearing was held on the CHINS petitions on October 22 and 23, 2008. Prior to this hearing, both parties filed motions requesting the trial court, pursuant to Indiana Trial Rule 52(A), to make specific findings of fact and conclusions thereon to support its decision after the fact-finding hearing. At the conclusion of DCS’s case during the fact-finding hearing, Parents orally moved to dismiss the CHINS petitions pursuant to Indiana Trial Rule 41(B). After argument by both parties, the trial court granted Parents’ motion to dismiss and issued an order dismissing the CHINS petitions on the children without issuing any findings of fact and conclusions. DCS now appeals. * * *

Trial Rule 41(B) states that when the trial court renders judgment on the merits against the plaintiff by granting an involuntary dismissal, it shall make findings when requested at the time of the motion. Although the rule is silent as to whether a motion filed prior to the commencement of the hearing is sufficient, we believe that the best practice and policy is for a trial court to issue findings supporting its decision to dismiss when requested to do so prior to a fact-finding hearing even when no subsequent request is made at the time of a motion under Trial Rule 41(B). When a motion for findings and conclusions is made prior to the admission of evidence, it requests the same outcome as a motion made at the time a party moves for involuntary dismissal under Trial Rule 41(B). A motion filed prior to the admission of evidence is requesting that a trial court specifically find the facts that it relies upon in its determination of the merits of the case and to state its conclusions based upon such facts. A Trial Rule 41(B) motion, if granted, concludes a hearing and makes a determination of the case on its merits.

Where, as here, both parties filed motions requesting that the trial court make specific findings and conclusions pursuant to Trial Rule 52(A) when the hearing concludes, we do not believe that requiring the parties to re-file their motions requesting findings at the time that a motion to involuntarily dismiss is made serves any purpose. A motion filed prior to a hearing encompasses the same intent as one filed simultaneously with a Trial Rule 41(B) motion to dismiss, which is to request findings and conclusions to support a trial court’s decision on the merits following a fact-finding hearing. Here, the trial court’s order dismissing the CHINS petitions on the children pursuant to Trial Rule 41(B) was a disposition of the case on the merits following a fact-finding hearing, and the trial court should have issued specific finding and conclusions to support such determination because it was requested to do so by the parties. We therefore remand this case to the trial court with instructions to issue specific findings and conclusions supporting its determination to dismiss the CHINS petitions.

Remanded with instructions.

In Crawfordsville Square LLC, et al v. Monroe Guaranty Insurance Co., Allstate Insurance Co., et al , a 13-page opinion, Judge Bradford writes:

Appellants Crawfordsville Square, LLC, and Crawfordsville Square II, LLC (collectively, “CS”), appeal from the trial court's denial of their motion for partial summary judgment against Appellee Monroe Guaranty Insurance Company and the trial court's grant of Monroe Guaranty's motion for partial summary judgment. At issue is whether Monroe Guaranty has a duty to defend CS in a series of administrative actions and lawsuits arising out of the contamination of property owned by CS. We affirm the judgment of the trial court. * * *

On August 23, 2005, CS brought suit against former owners of the Parcel and their insurers seeking to “obtain funding to remediate soil and groundwater contamination” of the Parcel.

In late 2006 and early 2007, Monroe Guaranty denied to CS that it was obligated to defend it against the IDEM action and counterclaims that were eventually brought by prior owners of the Parcel and their insurers. On March 2, 2007, Monroe Guaranty brought suit for declaratory judgment on the issue of its duty to defend CS. On September 26, 2007, CS filed a motion for summary judgment. On December 4, 2007, Monroe Guaranty responded to CS's motion for summary judgment and filed a cross-motion for summary judgment. On June 25, 2008, the trial court denied CS's motion for summary judgment and granted Monroe Guaranty's. * * *

CS contends that the “known loss” doctrine does not preclude coverage in this case and therefore does not excuse Monroe Guaranty from its obligation to defend CS. * * *

CS contends that the designated evidence creates a genuine issue of material fact regarding whether, when it added the Parcel to its policy with Monroe Guaranty, it was not actually aware that a loss had occurred, was occurring, or was substantially certain to occur. We disagree. * * *

As previously mentioned, we conclude that the designated evidence establishes that CS had the required actual knowledge of dry cleaning fluid contamination at actionable levels, which constitutes a known loss. We conclude that CS has failed to establish a genuine issue of material fact regarding known loss.

CS also contends that, even if Monroe Guaranty establishes a known loss, the designated evidence also raises a question of fact regarding whether Monroe Guaranty knew of the loss as well. * * * We cannot agree. The relevant designated evidence relating to Monroe Guaranty's prior knowledge of the Parcel indicates only that it was aware that a dry cleaner was operating on the Parcel at the time of the closing. This mere knowledge does not, however, create a genuine issue of material fact regarding whether Monroe Guaranty had actual knowledge of actionable levels of dry cleaning-related contamination. Quite simply, there is nothing in the designated evidence to suggest that the mere presence of a dry cleaning business invariably leads to actionable contamination of the land on which it sits. Moreover, even if such contamination is inevitable, there is no evidence that Monroe Guaranty knew this. CS has not established that the designated evidence establishes a genuine issue of material fact regarding whether Monroe Guaranty knew of the actionable contamination at the Parcel.

We conclude that CS has failed to establish genuine issues of material fact regarding its known loss and whether Monroe Guaranty also knew of CS's loss. As such, the trial court correctly granted Monroe Guaranty's motion for summary judgment on the question of coverage, and we need not address CS's other arguments on appeal.

In Jack Mikel, et al. v. Donald Johnston, et al. , a 10-page opinion, Judge Mathias writes:

Jack and Nathan Mikel, d/b/a Mikel Farms (“the Mikels”), appeal the order of the Kosciusko Circuit Court denying their objection to the sale of certain real estate located in Kosciusko County. The Mikels appeal and argue that the trial court erred in denying their objection because of a defect in the notice of sale. We affirm. * * *

We acknowledge that the trial court’s order stated that reasonable public notice should be given pursuant to Section 2(j). We read the trial court’s order to mean that the reasonable public notice requirement of Section 12 could be met by publishing the notice of the sale twice, as set forth in Section 2(j). Certainly, publication of the notice of sale twice, as required by Section 2(j), would meet the Section 12(b) requirement of reasonable public notice. But this does not mean that the reasonable public notice requirement of Section 12(b) can only be met by publishing notice twice under Section 2(j). To meet the requirements of Section 12, the notice of the sale must simply be reasonable public notice. The Mikels do not explain why the public notice that was given in the present case was not reasonable.

Furthermore, even if we were to assume that the failure to give two public notices, per the trial court’s original order, was improper, the Mikels have not established that they have been harmed by any error. See Heagy v. Kean, 864 N.E.2d 383, 388 (Ind. Ct. App. 2007) (citing Indiana Appellate Rule 66(A) for the proposition that we will not reverse for errors that do not affect the substantial rights of the parties). The Mikels claim that “[i]t is reasonable to conclude that advertising a property for sale twice, as opposed to once, would improve the possibility of more potential bidders being informed of the offered sale. This could enhance the prospects of more competitive bidding, as well as the prospects of obtaining a higher sales price.” Appellant’s Br. p. 11. This is speculation. The Mikels point to no actual evidence that an additional published notice would have resulted in a higher sales price. Moreover, they do not claim that the price actually obtained was inadequate. In short, the Mikels have not established prima facie error. Affirmed.

NFP civil opinions today (4):

Term. of Parent-Child Rel. of J.G.; D.G. v. Indiana Dept. of Child Svcs. (NFP)

Paternity of A.M.; T.E. v. S.H. (NFP)

Temple & Temple Excavating & Paving v. Farris Peacock (NFP) - " The question whether the defendant’s conduct is the proximate cause of the plaintiff’s injuries, however, is a question of fact for the jury’s determination. * * * The trial court did not err in denying Temple’s motion for summary judgment."

Jon Huff and Mary Huff v. Mike Stoffel and Rose Stoffel (NFP) - "Appellants-Defendants Jon Huff and Mary Huff appeal following the trial court's award of $11,525 in damages, $14,036.10 in attorney's fees, and costs, in favor of Appellees- Plaintiffs Mike Stoffel and Rose Stoffel in their breach-of-contract action against the Huffs arising out of the parties' real estate purchase agreement. Upon appeal the Huffs challenge the judgment on several grounds, including two grounds which we find dispositive: whether the trial court committed clear error in (1) finding constructive fraud, and (2) enforcing the parties' purchase agreement despite a lack of evidence demonstrating compliance with Indiana Code section 32-21-5-10(c) (2005). Concluding that the trial court committed clear error on both grounds, we reverse and remand for vacation of the trial court's judgment. "

NFP criminal opinions today (10):

Jeffrey Whitsey v. State of Indiana (NFP)

Stephanie R. Twilley v. State of Indiana (NFP)

Misty Lee Jones v. State of Indiana (NFP)

Thomas L. Smith v. State of Indiana (NFP)

Anthony J. Niebrugge v. State of Indiana (NFP)

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

Albert L. Marshall v. State of Indiana (NFP)

Kevin Potter v. State of Indiana (NFP)

Justin Scott Elser v. State of Indiana (NFP)

Arturo Salinas Gallardo v. State of Indiana (NFP)

Posted by Marcia Oddi on May 29, 2009 10:51 AM
Posted to Ind. App.Ct. Decisions

Courts - "Questions Arise About Long Delay by Sotomayor-Led Panel in Climate Case"; 7th Circuit can top that

Marcia Coyle of The National Law Journal has an article today about it being three years since a 2nd Circuit panel, including Supreme Court nominee Sonia Sotomayor, heard an oral argument and as yet there has been no ruling. Specifically:

A major climate change lawsuit brought by eight states against five utilities has been pending decision for nearly three years before an appellate panel on which Sotomayor is the presiding judge.

"No one knows why the case has never been decided," said David Doniger, policy director of the Natural Resources Defense Council's Climate Center.

And it's not for lack of trying to get information. Last September, the plaintiffs wrote to the circuit clerk about the pending appeal, and just a few weeks ago, another letter went to the clerk from a group involved in the case.

The case is Connecticut v. American Electric Power Co. More from the story:

The case was docketed with the circuit court in September 2005; briefing was completed in March 2006, and argument was held June 7, 2006. The Sotomayor panel asked for additional briefing on the impact of the Supreme Court's climate decision, Massachusetts v. EPA (pdf), and that briefing was filed in July 2007.

Some lawyers who practice before the circuit court said the delay -- three years from oral argument -- is unusually long. The circuit disposes of cases on the merits an average of 17.6 months from notice of appeal to final disposition, according to statistics compiled by the Administrative Office of the U.S. Courts, and 0.6 months from hearing to full disposition.

The delay, some of have posited, is the result of the controversial nature of the case and that was only heightened by initial speculation about Sotomayor as a potential Supreme Court nominee and how any decision might affect her chances. "Some of us didn't believe earlier that the speculation about Sotomayor had anything at all to do with the delay," said one lawyer following the case. "But with every passing day that argument gets stronger and stronger."

Three years? The 7th Circuit certainly can top that. This ILB entry from July 4, 2008 talks of New Albany DVD v. City of New Albany, decided by U.S. District Judge Sara Evans Barker on Jan. 6, 2005 and heard by the 7th Circuit on Sept. 27, 2005. A decision is still pending, nearing 4 years later.

Another Judge Barker ruling - Annex Books Inc, et al v. City of Indianapolis - is even older, from August 30th, 2004. Oral arguments in the as-yet-to-be-decided case were held before Judges Flaum, Easterbrook, and Rovner, on Sept. 8, 2005.

(The ILB doesn't know whether Judge Diane Wood is on the New Albany DVD panel.)

Posted by Marcia Oddi on May 29, 2009 10:13 AM
Posted to Courts in general

Ind. Courts - Terre Haute mayoral election dispute heard by Supreme Court

The Supreme Court heard oral arguments yesterday in the case of Kevin D. Burke v. Duke Bennett. Arthur E. Foulkes of the Terre Haute Tribune-Star reports today:

INDIANAPOLIS — Dozens of spectators filled about half of the seats in the Indiana Supreme Court Room on Thursday morning to listen to Burke v. Bennett, the case that could change Terre Haute’s leadership and set precedent for Indiana election law for years to come. * * *

Burke, the incumbent Democrat, lost the 2007 Terre Haute mayor’s race to Bennett, a Republican, by 110 votes out of about 12,000 cast. After the election, Burke challenged Bennett’s eligibility to serve as a candidate for office under Indiana election law.

State law disqualifies candidates for office who are subject to the federal Hatch Act, a law that limits the political activity of federal employees and the employees of some not-for-profit organizations that receive federal funding.

Before taking office, Bennett served as director of operations for the Hamilton Center, a multicounty mental health organization that operates a federally funded Head Start program.

The Indiana Supreme Court is the third court to hear the Burke v. Bennett case. The case was first argued in Vigo County Superior Court before Judge David Bolk.

Bolk ruled that while Bennett had been subject to, and in violation of, the Hatch Act, he was no longer subject to it at the time he was to take office. The act, Bolk ruled, applies only to candidates and, at the time the case was heard, Bennett was no longer a candidate, but mayor-elect.

Burke appealed Bolk’s ruling that Bennett could assume office. Bennett later appealed Bolk’s ruling that the Hatch Act applied to him.

The case then traveled to the Indiana Court of Appeals, which also found Bennett in violation of the Hatch Act and ordered him to vacate the mayor’s office, pending appeal. However, the court also ruled that Burke could not take the mayor’s office because his Hatch Act complaint had come after the election was over.

The appeals court called for a special election to fill the mayor’s seat – a solution neither side liked.

During Thursday morning’s oral arguments, Justice Frank Sullivan Jr. asked most of the questions of both lawyers. Among his many queries, Sullivan asked Burke’s attorney why Judge Bolk was wrong to allow Bennett to take office in January 2008.

Edward O. DeLaney, of Indianapolis, answered that Bolk was wrong because the Hatch Act applied to Bennett, because he “violated [Indiana] statute by becoming a candidate.” As soon as Bennett registered as a candidate and signed a document saying he was qualified to seek office, he disqualified himself, DeLaney said. “That was the violation.”

Bennett’s attorney, Bryan H. Babb, also of Indianapolis, began his argument by quoting Bolk’s ruling in which the judge called Bennett’s connection to the Hamilton Center’s Head Start program “essentially nonexistent.” Babb also attacked the Hatch Act itself, saying the law and the many rulings it has spawned do “not make a lot of sense” and unnecessarily disqualify too many people from seeking office.

“We deal with laws that don’t make much sense every day,” Justice Sullivan responded to soft giggles in the courtroom.

When the arguments were finished, DeLaney and Babb both said they were pleased with the hearing.

“We’re asking the court to make a difficult decision,” DeLaney said.

Posted by Marcia Oddi on May 29, 2009 09:09 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Wilkes' sentence challenged: Lawyers say judge violated state law"

The case of Daniel Ray Wilkes v. State of Indiana, argued yesterday before the Supreme Court, is the subject of a story today by Eric Bradner in the Evansville Courier & Press:

INDIANAPOLIS — Attorneys for death row inmate Daniel Ray Wilkes told the Indiana Supreme Court on Thursday that a Vanderburgh County judge's decision to sentence Wilkes to death violated state law.

They asked that Wilkes, who was convicted of killing an Evansville mother and her two young daughters three years ago, instead spend his life in prison.

A state attorney countered during the one-hour hearing that Wilkes' attor-neys were off-base and that Vanderburgh Circuit Judge CarlHeldt's death sentence was allowed under the law.

Wilkes was arrested in April 2006 on charges of killing Donna Claspell and her daughters, 13-year-old Avery Pike and 8-year-old Sydne Claspell, in Claspell's Evansville home. He later admitted the slayings to police.

After his trial was moved to Clark County, Ind., a jury found Wilkes guilty of the three murders. But the jury was unable to reach a unanimous agreement on whether Wilkes should live or die.

The 12-member panel deadlocked with 11 in favor of the death penalty and one opposing.

That left Wilkes' fate to be decided by Heldt, who sentenced him to death.

It was the first time since state law was changed in 2002 that a judge had to determine the sentence in a death-penalty case. Defense attorneys at the time said Heldt's sentence could lead to years of appeals.

In noncapital cases, sentencing is already up to the judge, not the jury. But in capital cases, the 2002 law requires a judge to follow a jury's recommendation.

On Thursday, Wilkes' attorneys, John Goodridge and William Gooden, said that law means for an offender to be sentenced to death, the jury has to unanimously recommend it.

They argued that because the jury was deadlocked, Heldt's only option was to sentence Wilkes to a term of years.

Indiana Deputy Attorney General Steve Creason disagreed. He said if the jury didn't offer a recommendation, Heldt had nothing to follow.

The jury did find Wilkes guilty of the three murders. Creason said just because the jury hadn't agreed unanimously that Wilkes deserved death didn't mean that option was off the table, and that it was entirely within Heldt's power to sentence Wilkes to death.

This case was a direct appeal to the Supreme Court.

Posted by Marcia Oddi on May 29, 2009 08:59 AM
Posted to Ind. Sup.Ct. Decisions

Thursday, May 28, 2009

Ind. Decisions - Supreme Court rules that paper / dealers' plates "must be be mounted in the same fashion as the permanent plate"

Late this afternoon the Supreme Court has filed two opinions -- today's are time-stamped 3:28 PM and 4:21 PM. They are:

Kerry L. Meredith v. State of Indiana and Jeffrey Young v. State of Indiana

In Meridith, a 10-page, 4-1 opinion affirming defendant's conviction, Justice Dickson writes:

The defendant, Kerry L. Meredith, appeals his conviction for drug possession, arguing that evidence of drugs found in his vehicle should have been suppressed at trial because (1) police lacked cause to initiate a traffic stop and (2) the subsequent consented-to search of his vehicle violated his rights under Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975), and Sims v. State, 274 Ind. 495, 413 N.E.2d 556 (1980). The Court of Appeals reversed. Meredith v. State, 878 N.E.2d 453 (Ind. Ct. App. 2007), reh'g granted, 886 N.E.2d 79 (Ind. Ct. App. 2008). We granted transfer and now affirm the conviction, concluding that police had reasonable suspicion to stop the defendant based on the unlawful display of his temporary license plate in his rear window, and that the defendant was not in custody at the time he consented to the police search of the vehicle. * * *

Officer Lackey testified that he stopped the defendant's car solely because he suspected the vehicle was being operated in violation of Indiana's laws regarding the proper display of license plates. The question before us is thus whether the defendant's placement of his temporary plate in the vehicle's back window amounted to a traffic infraction. If it did, Officer Lackey had reasonable suspicion to execute the traffic stop. * * *

As neither the statutes nor regulations differentiate the display and illumination requirements of permanent and interim plates, we hold that under existing unambiguous law a license plate—be it temporary or permanent—must be mounted and illuminated as provided by Indiana Code §§9-18-2-26 and 9-19-6-4. This Court is mindful that the current common practice is for dealerships to issue paper or cardboard plates to customers, and that exposing such a document to the elements appears impractical and inconvenient, but as neither the statutes nor regulations differentiate between the display requirements for a permanent and interim plate, the interim plate must be mounted in the same fashion as the permanent plate. Any other method of display may give rise to reasonable suspicion for law enforcement officers to initiate a traffic stop to ascertain whether the display complies with all statutory requirements. * * *

The defendant was not in custody, and thus no Pirtle/Sims warning was necessary. The trial court did not err in refusing to exclude the evidence on this basis.

Conclusion. We affirm the defendant's conviction.

Shepard, C.J., and Sullivan and Boehm, JJ., concur. Rucker, J., dissents with separate opinion:

The Legislature has authorized the Bureau of Motor Vehicles to promulgate rules for the
placement of temporary plates, and the bureau has not done so. But this is not because the
bureau necessarily intends that the rules for permanent license plates should apply. If that were
so, then the bureau would have no reason to require ninety-day plates to be “displayed in the
same manner as a standard license plate.” * * *

A drive down nearly any Indiana street on any given day will reveal Hoosier motorists applying old-fashioned common sense: attaching temporary paper tags to the inside of the back window in order protect them from deterioration by the elements. By today’s decision the majority has transformed law-abiding citizens into traffic offenders. This is patently wrong in my view; therefore I dissent.

In Young, a 4-page, 4-1 opinion, Justice Dickson writes:

Resolution of this appeal is determined by our holding today in Meredith v.State, ___ N.E.2d ___ (Ind. 2009), that it is legally insufficient to display a paper temporary license plate inside the rear window of a motor vehicle. For this reason, we affirm the conviction of the defendant, Jeffrey Young, for Possession of Cocaine, rejecting his claim of improper admission of evidence resulting from an unlawful traffic stop.

Posted by Marcia Oddi on May 28, 2009 06:22 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - One case granted transfer May 28th

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 case of David A. Shotts v. State of Indiana -- No. 71A03-0808- CR-400. See ILB March 12, 2009 summary here - 3rd case.

Posted by Marcia Oddi on May 28, 2009 03:44 PM
Posted to Indiana Transfer Lists

Courts - "Dirty Laundry Aired: The Fight Over Revealing Divorce Details"

The Wall Street Journal has a long story today by Dionne Searcey. Some quotes:

Disclosures during divorce proceedings often elicit disgust over the revelation of intimate details -- or delight over the revelation of intimate details.

A string of recent divorce cases involving high-profile figures has laid bare that divide, in sometimes excruciatingly personal terms. Defenders of disclosure say revelations that come out of divorce cases can provide insight into the character and habits of elected officials and others who are accountable to the public, such as executives of public companies.

Despite the potential for tawdriness and spousal retaliation, there are often compelling reasons for openness, proponents of disclosure say. * * *

Divorce hearings are largely presumed to be open to the public. Case records, however, are often considered private. But the laws vary widely from state to state. In all states, courts heavily weigh the interests of children when determining whether to seal any part of a divorce case. And in some states, including California, parties are allowed to redact information if they show a compelling reason, such as financial information that could allow identity theft. * * *

A high-profile split in Connecticut involving the head of a large public company illustrates how open proceedings can serve shareholder interests, proponents of disclosure say. The wife of United Technologies Corp. Chairman George David says she deserved more than the roughly $43 million set out in the couple's post-nuptial agreement, in part, because she essentially helped run the company. Lawyers for Marie Douglas-David, a former investment banker, hope to highlight financial conversations the couple had as proof.

To that end, an attorney for Ms. Douglas-David suggested at a recent hearing that the couple discussed a merger of United Technologies with 3M Co. The proposed deal, which never happened, hadn't been disclosed prior to the divorce proceedings. * * *

Judges and legislatures at times see reasons why divorce information is in the public interest. In 2004, when Barack Obama was running against Jack Ryan for a U.S. Senate seat in Illinois, a lawsuit from the Chicago Tribune unsealed Mr. Ryan's divorce records in a custody battle that accused him of taking his wife to sex clubs and of trying to persuade her to perform sex acts for strangers. Mr. Ryan couldn't be reached for comment Wednesday. He issued denials during the 2004 campaign, but his poll numbers plummeted and he dropped out of the race.

The WSJ Law Blog picks up the story, asking "Should Details of Divorces be Allowed to be Made Public?"

The ILB had several entries on this issue in 2003 and 2004. A Jan. 14, 2003 NYT story, headed "Ernst & Young Financial Details Are Disclosed In Divorce Case," began:

Every detail that the global accounting firm Ernst & Young told its American partners about its financial performance through late 2000 became public late yesterday, including its profits, details of its capital structure, the hours billed to clients and the average earnings per partner. Many aspects of foreign operations were also disclosed.

While such information is normally closely held, the details were disclosed as part of a divorce case involving the firm's global chief executive, Richard S. Bobrow. The documents were released by Judge Steven R. Nation of Hamilton County Superior Court in Indiana, where the case is being heard, after motions were filed by The New York Times to obtain them.

The disclosure of the details is sure to arouse unhappiness among the firm's 1,900 American partners, experts said. They predicted that the information would put competitors at an advantage in bidding on contracts, hiring employees and settling lawsuits. The financial data will also be of interest to spouses of Ernst & Young partners who are planning a divorce.

See a follow-up ILB entry from April 15th, 2003 here, including this Indy Star quote:

A Hamilton County court decision has made the financial records of a privately owned global-accounting firm public, but they remain shielded from view. Hamilton County Superior Court Judge Steven Nation has denied a request from New York City-based Ernst & Young to seal and expunge financial information about the company from court records. Nation, however, did not lift a stay on the information, which blocks public access. He made the ruling last week in response to a request from The Indianapolis Star. Nation said he refused to lift the stay because lawyers from Ernst & Young have indicated they will file an appeal. "If the Indiana Court of Appeals disagrees with me, it wouldn't be (any) good for their side," Nation said.

The June 14, 2004 COA decision in the case of Ernst & Young, et al. v. Indianapolis Star is summarized in this ILB entry (last half of page). From the Indy Star's report on the decision:

Trade secrets should stay trade secrets in Indiana -- even after they no longer are secret, an Indiana Court of Appeals has ruled. Indiana's public records laws, the court ruled today, permit a trial court to seal public records that fall within certain mandatory exceptions, such as a business's confidential information, even after they have been disclosed as evidence.

The three-member court ruled in favor of accounting powerhouse Ernst & Young LLP , which sought to seal its business records after they were introduced as evidence in the divorce of former Ernst & Young chief executive Richard S. Bobrow. The records had not only been used as evidence in the Hamilton County divorce proceeding, but also publicized in the New York Times -- which had obtained them before the companies asked that they be sealed.

While Hamilton Superior Court Judge Steve Nation had ruled in April 2003 that the records, once admitted into evidence, should be public, he had kept them shielded pending the outcome of the appeal. Steve Key, general counsel to the Hoosier State Press Association, said the court's decision is like "trying to put a genie back in a bottle."

A June 18, 2004 ILB entry links to a still-accessible Chicago Tribune story (remember this was the 2004 Illinois U.S. Senate race where Ryan, the strong Republican candidate, bowed out, leaving Democratic candidate Barack Obama opposed only by Alan Keyes, who did not live in the state) that begins:

LOS ANGELES - Dealing a blow to the U.S. Senate candidacy of Republican Jack Ryan, a California judge ruled that several sealed divorce records likely to embarrass the candidate and his ex-wife should be opened to the public.

Ruling on a request brought by attorneys for the Tribune and WLS-TV, Superior Court Judge Robert Schnider acknowledged that the resulting publicity from the disclosure would be harmful to the couple's son, a key argument Ryan had raised in seeking to keep the documents from public view.

But Schnider said he had weighed the public interest of disclosure against the private interests of the Ryans and their child. "In the end," Schnider found, "the balance tips slightly to the public.

"They were aware they were in a public court system and protection from embarrassment cannot be a basis for keeping from the public what's put in public courts," said Schnider, referring to Ryan and his ex-wife, actress Jeri Lynn Ryan. Additionally, Schnider said, "the openness of court files must be maintained, so that the public ... can be assured that there is no favoritism shown to the rich and the powerful."

Posted by Marcia Oddi on May 28, 2009 03:06 PM
Posted to Courts in general

Ind. Decisions - Indiana Supreme Court decision highlighted

The Supreme Court's May 19th decision in the case of Dennis Conwell and Frank Splittorff, d/b/a Piece of America v. Gray Loon Outdoor Marketing Group, Inc. (ILB summary here - second case) is noted today in an entry by law prof Eugene Volokh of The Volokh Conspirary.

Posted by Marcia Oddi on May 28, 2009 02:54 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Judge holds city in contempt, must return fees"

A story in the Gary Post Tribune today, by Jon Seidel, reports:

GARY -- A Lake County special judge is holding the city of Gary in contempt for collecting an "illegal garbage pick-up fee" from its residents and ordered officials to begin refunding the money by July 9.

Meanwhile, members of Gary's City Council are debating legislation that could legitimize the fee retroactively to January.

A vote on that ordinance could be taken as soon as Tuesday night, but council finance chairwoman Mary Brown, D-3rd District, said that's not likely.

"I don't think we'll be voting next week," Brown said.

It's been seven months since the Gary Sanitary District privatized the city's garbage collection by approving a no-bid contract with Allied Waste. * * *

Miller Citizens Corp. sued GSD, complaining that the contract should have been bid out and that only the City Council can approve a fee.

Judge Thomas Webber ruled in MCC's favor in February, voiding Allied's contract. The Sanitary District continued to bill its customers for the trash fee anyway, arguing that the fee wasn't voided along with the contract.

Webber clarified his ruling in March, explaining that as long as the council passes an ordinance approving the fee, it will stand.

Such an ordinance was introduced to the council in the fall, but it was withdrawn. A similar piece of legislation was introduced to the council on May 19, days before a follow-up hearing in Webber's court.

In his latest ruling, issued Tuesday, Webber said he didn't realize the fee was being collected without council approval until a motion to show cause was filed by MCC.

"The city knew or should have known that attempting to collect an unauthorized fee is an illegal act and the city should be held in contempt for the wrongful act," Webber wrote.

All money collected on the trash fee should be refunded or credited, Webber wrote, and the city must show compliance in time for a hearing set for July 9. * * *

The day of Webber's ruling, the council's finance committee met to discuss an ordinance that would retroactively authorize the $12 trash fee.

It was a standing-room-only meeting, as several residents wearing "Vote No" stickers decided to attend.

City attorney Carl Jones argued during the meeting that the council must pass an ordinance before the Sanitary District can enter into a contract to replace the one with Allied.

Others, including Councilwoman Marilyn Krusas, D-1st, said the contract should be approved first. "I want to see what it's going to cost us," Krusas said.

Posted by Marcia Oddi on May 28, 2009 02:24 PM
Posted to Ind. Trial Ct. Decisions

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Legal Blawgs Web Archive Collection

Legal Blawgs Web Archive Collection

The Indiana Law Blog

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

Friday, June 05, 2009

Courts - 2nd Circuit Refuses to Block Chrysler’s Sale

Ind. Decisions - Transfer list for week ending June 5, 2009

Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)

Courts - More on Indiana's pension funds' involvement in Chrsler bankruptcy

Ind. Law - AG finds that a Port Authority seat is a "lucrative office" per the Constitution

Environment - Still more on: "EPA cites BP's Whiting refinery for Clean Air Act violations"

Thursday, June 04, 2009

Law - Some useful information on obtaining loan modifications

Environment - More on: "EPA cites BP's Whiting refinery for Clean Air Act violations"

Courts - Judge Sotomayor's 173-page questionaire now available

Environment - "Obama appoints Cameron Davis as Great Lakes czar" [Updated]

Courts - More on: President Obama's Indiana nominees David Hamilton and Dawn Johnsen remain in limbo

Ind. Decisions - Court of Appeals issues 4 today (and 11 NFP)

Environment - "Plans for hog farm are on hold: State lacks regulation, rural neighbors assert"

Ind. Courts - "Ex-Clark court workers sue: Two claim firings politically based"

Law - Fort Wayne Journal Gazette asks "Where is the outrage?"

Ind. Courts - "Group challenges arrests of Notre Dame protesters"

Courts - "Debate on Whether Female Judges Decide Differently Arises Anew"

Ind. Decisions - More on: Supreme Court dismisses school finance plaintiffs' arguments

Law - More on "New Hampshire. Legislature Approves Gay Marriage "

Ind. Courts - "Justice Sullivan heading to D.C. appeals court?"

Wednesday, June 03, 2009

Courts - More on "Judge Moves Appeal of Chrysler Sale to 2nd Circuit" [Updated]

Law - "New Hampshire. Legislature Approves Gay Marriage "

Law - More on "Recession Imperils Loan Forgiveness Programs"

Ind. Decisions - "Ex-lawyer gets 2 years in deadly DUI," may serve 11 months

Law - What exactly is "data mining"?

Ind. Decisions - "Attorney fees, treble damages to be sought by state in sidewalk case"

Ind. Law - "Puppy Mill Busted: Dogs taken from Harrison County farm to New Albany warehouse"

Ind. Decisions - Identifying the Articles of the Indiana Constitution [Updated]

Ind. Decisions - Court of Appeals issues 1 today (and 12 NFP)

Courts - More on "Judge Moves Appeal of Chrysler Sale to 2nd Circuit" [Updated]

Ind. Decisions - More on: 7th Circuit rules on Illinois municipalities' ban on handguns

Courts - "In MySpace Cases, Appellate Judges Wrestle With Possible Split"

Tuesday, June 02, 2009

Courts - "Prison Cell-Phone Use a Growing Problem"

Courts - Still more on: "Florida high school student files complaint after suspension for creating Facebook page critical of teacher"

Environment - "EPA cites BP's Whiting refinery for Clean Air Act violations"

Courts - "Judge Moves Appeal of Chrysler Sale to 2nd Circuit"

Ind. Decisions - Supreme Court dismisses school finance plaintiffs' arguments

Ind. Decisions - 7th Circuit rules on Illinois municipalities' ban on handguns

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

Ind. Courts - Updating: Training on new loan modification programs [Updated]

Courts - "Big Issues Lurk Below Surface of Sotomayor Confirmation Hearings"

Ind. Law - "Break for property taxes"

Monday, June 01, 2009

Law - "Abortion Doctor Murder: A Threat to Access?"

Ind. Decisions - Still more on: Court of Appeals affirms Muncie Mayor Sharon McShurley's election

Ind. Decisions - Transfer list for week ending May 29, 2009

Law - "Recession Imperils Loan Forgiveness Programs"

Courts - North Carolina Judge reprimanded for ex parte "friending" of attorney for the defense

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

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

Court - Blogger Tom Goldstein featured in Washington Post

Law - More on: Chicago Mayor Dailey privatizes City parking meters

Ind. Law - "It's the Law: Indiana Good Samaritans are protected from civil liability"

Ind. Decisions - Upcoming oral arguments this week and next

Courts - "Judge Clears Way for Sale of Chrysler to Fiat"

Sunday, May 31, 2009

Ind. Gov't. - $40 million spent since passage of 2007 law meant as a bridge to help retired legislators and state employees until they qualify for Medicare

Saturday, May 30, 2009

Courts - "Federal judges' group puts big cases on fast track"

Ind. Law - Fort Wayne JG editorial on legalizing golf carts

Environment - "Petitions filed to appeal federal water permits for megadairies"

Courts - DC Circuit refuses to review ruling on Indiana rail line

Friday, May 29, 2009

Ind. Decisions - "Duke Energy Ordered to Shut Indiana Coal Power Units"

Ind. Decisions - 7th Circuit's CJ Easterbrook rules in chambers on secrecy issue

Courts - Yet another reason to ban cellphones in court rooms?

Ind. Decisions - More on: Court of Appeals affirms Muncie Mayor Sharon McShurley's election

Ind. Gov't. - Kokomo Perspective having trouble accessing Howard County emails

Ind. Gov't. - Continuing on: "Pension Funds Object to Chrysler Sale, Want Trustee"

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

Ind. Decisions - Court of Appeals issues 4 today (and 14 NFP)

Courts - "Questions Arise About Long Delay by Sotomayor-Led Panel in Climate Case"; 7th Circuit can top that

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