Wednesday, August 19, 2009
Law - More on: "New appraisal rules raise many concerns"
"New appraisal rules raise many concerns" was the headline to a story by Nicole Blake of the Indianapolis Star, dated July 21st.
Yesterday the New York Times and the Wall Street Journal both had major stories on the same topic.
The Times story, by David Streitfeld, begins:
Mike Kennedy, a real estate appraiser in Monroe, N.Y., was examining a suburban house a few years ago when he discovered five feet of water in the basement. The mortgage broker arranging the owner’s refinancing asked him to pretend it was not there.In the WSJ story, here are some quotes fromJames H. Hagerty's lengthy report:Brokers, real estate agents and banks asked appraisers to do a lot of pretending during the housing boom, pumping up values while ignoring defects. While Mr. Kennedy says he never complied, many appraisers did, some of them thinking they had no choice if they wanted work. A profession that should have been a brake on the spiral in home prices instead became a big contributor.
On May 1, a sweeping change took effect that was meant to reduce the conflicts of interest in home appraisals while safeguarding the independence of the people who do them.
Brokers and real estate agents can no longer order appraisals. Lenders now control the entire process.
The Home Valuation Code of Conduct is setting off a bitter battle. Mortgage brokers, lenders, real estate agents, regulators and appraisers are all arguing over whether an effort to fix one problem has created many new ones.
The agents, maintaining that the changes are effectively blocking home sales by encouraging the use of inexperienced appraisers, are asking Washington to suspend the code until 2011. For their part, appraisers acknowledge that the change may have been well intentioned but contend that it has no teeth and is undermining the economics of their profession.
“We’ve been begging for years for enforcement of existing state and federal laws regulating appraising,” said Mr. Kennedy, a leader in the appraisal community. “We thought we were finally going to get that. But the code is doing nothing except putting ethical appraisers out of business.”
Appraisers are required to follow a set of national rules known as the Uniform Standards of Professional Appraisal Practice. Among other things, those rules require that "an appraiser preparing an appraisal in an unfamiliar location must spend sufficient time to understand the nuances of the local market."Yet some appraisers who travel long distances to find work may be hard-pressed to spend "sufficient time" in an unfamiliar market. LaRon Hall did an appraisal in early June on a home being sold in Palm Desert, Calif., about 86 miles from his office in Rancho Cucamonga, Calif. He says he needs to accept jobs within a broad swath of Southern California to earn a living. Under the new appraisal code, Mr. Hall says, "you're getting less money and you're having to do more. ... It's definitely a sticky situation."
Mr. Hall appraised the three-bedroom home at $186,000, far above the $138,000 for which it sold in late June. Concerned about accuracy, the mortgage lender that financed the purchase rejected Mr. Hall's appraisal and ordered one from another party before making the loan, according to a person involved in the transaction.
A spokesman for Equifax Inc., whose AMC unit ordered the appraisal in Palm Desert, says Mr. Hall has an excellent record on appraisals and that Equifax has a "rigorous quality-control process."
Though consumers can't choose their own appraiser—unless they're paying cash for a home—they should request a copy of the appraisal and examine it to see whether it contains any errors in the description of the property and whether the nearby homes, or "comps," used to gauge its value are truly comparable. If they aren't, the consumer should present any evidence of flaws to the banks and insist that the appraisal be reviewed and redone if necessary.
Posted by Marcia Oddi on August 19, 2009 12:22 PM
Posted to General Law Related
Courts - "After Settlement in Amtrak Case, Opinions Erased From Lexis and Westlaw" [Updated]
Shannon P. Duffy of The Legal Intelligencer reports today in a lengthy article. Here are some quotes:
Ordinarily, the decision to settle a case while an appeal is pending means giving up the opportunity to set a legal precedent as well as forgoing the chance to win a reversal of any unfavorable published decisions handed down by the lower court.[Updated at 7:00 pm] Prof. Eugene Volokh has posted the six opinions here.But a team of defense lawyers fighting to overturn a $24 million verdict have figured out a way to have their settlement cake and eat their jurisprudence, too.
The confidential settlement in Klein v. Amtrak -- a case in which two trespassing teenagers climbed atop a parked train car and suffered serious burns when they got too close to a 12,000-volt catenary wire -- included an unusual provision that called for the trial judge to vacate all of his published opinions and have them removed from Lexis and Westlaw.
And it worked.
A few months after holding an hourlong oral argument, the 3rd U.S. Circuit Court of Appeals agreed in late July to remand the case to the trial judge, U.S. District Judge Lawrence F. Stengel, who, in turn, agreed to vacate eight of his published opinions and to "direct" Lexis and Westlaw to remove them from their databases. * * *
Exactly how the lawyers went about persuading Stengel to take such an unusual step is impossible to say because all of the court papers are under seal and none of the lawyers will talk about it. * * *
Robert C. Clothier of Fox Rothschild, who has handled access cases for The Legal Intelligencer, said he was troubled by the court's decision to allow the defense lawyers to file all of their motions under seal, including the motion that asked for permission to seal the other papers.
To justify sealing any document, Clothier said, the courts have consistently held that it is necessary to "articulate on the record" the extraordinary circumstances that justify secrecy. As a result, he said, the motion to seal itself cannot be under seal.
The audiotape of the 3rd Circuit oral argument reveals that the three-judge panel had tough questions for both sides and that no clear winner emerged.
In five years of litigation, Klein v. Amtrak spawned a series of legally significant decisions -- all now withdrawn -- on issues such as how to apply the "attractive nuisance" doctrine in a case where the injured plaintiff was nearly 18 years old, and the standard of proof required to show that a landowner was aware of a risk because of similar prior accidents.
In April 2008, Stengel issued a 60-page opinion that upheld the jury's verdict, rejecting a slew of arguments that challenged his pretrial rulings, his jury instructions and the size of both the compensatory and punitive damage awards.
Stengel found that the jury's conclusions were supported by clear evidence that "Amtrak had every reason to know trespassers were regularly on its tracks and that teenage boys were inclined to climb to the top of parked boxcars."
Posted by Marcia Oddi on August 19, 2009 12:14 PM
Posted to Courts in general
Ind. Decisions - Court of Appeals issues 0 today (and 13 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
Fouchard Guillaume and Christine Guillaume v. Hall Farms, Inc. and Midwest Marketing Co., Inc. (NFP) - "Neither McCants nor Hilton were employees of Midwest, and therefore summary judgment in favor of Midwest and Hall Farms was proper. Consideration of the issue of whether the trial court properly denied the Guillaume’s motion to amend their complaint is not properly before us on appeal and must be dismissed. We affirm."
Term. of Parent-Child Rel. of R.R.; J.C., et al v. IDCS (NFP) - "A thorough review of the record reveals that the trial court's judgment terminating Mother's parental rights to R.R. is supported by clear and convincing evidence. This court will reverse a termination of parental rights “only upon a showing of 'clear error' -- that which leaves us with a definite and firm conviction that a mistake has been made.” Matter of A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly, 592 N.E.2d at 1235). We find no such error here."
NFP criminal opinions today (11):
Bobby Long v. State of Indiana (NFP)
Hector Seba v. State of Indiana (NFP)
Marvin W. Brown v. State of Indiana (NFP)
Michael G. Haney v. State of Indiana (NFP)
Leon Jennings v. State of Indiana (NFP)
Dennis Ellis v. State of Indiana (NFP)
Mark D. Youngs v. State of Indiana (NFP)
Melvin L. Sledge v. State of Indiana (NFP)
Jason Caldwell v. State of Indiana (NFP)
Derick Scruggs v. State of Indiana (NFP)
Joshua Balser v. State of Indiana (NFP)
Posted by Marcia Oddi on August 19, 2009 12:08 PM
Posted to Ind. App.Ct. Decisions
Ind. Gov't - "I-69 project: Can state finish what it started?"
I actually thought the Indianapolis Star was for the currenlty planned I-69 route to Evansville, before it was against it. But a quick search did not turn up any earlier Star editorials supporting the current route.
But today the Star definitely takes a stand, on the basis of its cost, against the route selected, in an editorial headed "Evansville or bust: I-69 takes toll." Some quotes:
Plans for the extension of I-69 through southwest Indiana were hatched long before the current recession and will not be realized in concrete for years, perhaps decades, to come.The editorial references its Aug. 17th story by Bill Ruthhart, headed "I-69 project: Can state finish what it started?." The story concluded:Driving in the dark has been the hallmark of this dubious venture through several governorships representing both political parties. Today, as the economy forces cuts across the gamut of state services, nobody in government can or will say how much the 141-mile stretch of highway will wind up costing, much less what its economic benefits will be.
Two things are known: The route chosen for I-69 is the most expensive of all options considered; and the projected cost keeps growing. * * *
For all its expressed confidence, the administration can't say where the bulk of the money will come from for a highway whose estimated bottom line has ballooned to more than $3 billion -- $4 billion-plus by the reckoning of its opponents. * * *
It might have been less. This long-sought Indianapolis-to-Evansville connector could have used existing I-70 and U.S. 41, widened and upgraded, with far lower construction cost and far less property acquisition and loss of forest and farmland.
That route, which would have terminated near Indianapolis International Airport, likewise would have taken far less property in this area than the now-planned Perry Township connection, which is opposed by residents and elected officials across the political spectrum.
Foes of the chosen route insist they haven't given up on changing it; but their appeals to the state and federal governments and the courts have failed so far. Gov. Mitch Daniels' successor may find it feasible to rethink the project if progress remains slow and cost estimates continue to rise. Otherwise, he or she will become the next star player in a high-stakes guessing game of historic proportions.
Critics say the project will continue to get more expensive as inflation and higher construction costs factor into the later phases. Plus, they say, the cost of acquiring land in more urban areas such as Indianapolis will add to the price.This Sept. 15, 2007 ILB entry quoted a story from the Evansville Courier & Press that began:INDOT declined to place a price on the overall project. Tokarski's group has estimated at least $4 billion.
Six years after then-Gov. Frank O'Bannon's administration settled on the final route for the I-69 extension, supporters argue that whatever the final cost, the project is worthwhile. It will connect Evansville to Indianapolis through a direct interstate route, generate construction jobs and create new businesses along the corridor.
"I-69 is about more than convenience," Ellsworth said. "It's about bringing jobs and economic development."
Opponents hold out hope of stopping it.
[Thomas Tokarski, president of Citizens for Appropriate Rural Roads, a leading I-69 opposition group] and John Smith, an I-69 critic who formed the opposition group Count Us, say the highway is unnecessary and is motivated by political pandering to the Evansville region. They also say it has harmful consequences: the elimination of 4,500 acres of farmland, 2,000 acres of forest, 400 homes and 125 businesses.
Both said their aim to undermine the highway's future rests on costs.
"The state has always pushed ahead and tried to make this look like a done deal, but it's not," Smith said. "They won't have the resources to build it."
Daniels' administration has its own message.
"The governor is committed to this project," Jankowski said. "It's essential to southwest Indiana and the state as a whole."
Opponents of the route for Interstate 69 from Evansville to Indianapolis want the state to consider a route using existing roads — U.S. 41 to Interstate 70 near Terre Haute. They are asking a federal judge to order the state to re-evaluate its route options and reconsider the indirect route it previously rejected.The federal judge, David Hamilton, ruled Dec. 11, 2007 "against environmentalist plaintiffs and in favor of state and federal officials in deciding the new-terrain route of Interstate 69 from Evansville to Indianapolis can proceed."
Posted by Marcia Oddi on August 19, 2009 10:27 AM
Posted to Indiana Government
Courts - "Judge rules blogger's identity must be revealed"; differing viewpoints
The Reporters Committee for Freedom of the Press site has this brief story:
A blogger lost his bid to keep his identity secret after a judge in New York City ruled that a fashion model had established a legitimate defamation claim against the blogger.The RCFP also provides a link to the trial court's decision.Establishing a legitimate underlying claim is necessary under New York rules of discovery before a subpoena to reveal an anonymous speaker will be enforced, according to the court.
The blogger had created a site called "Skanks in NYC," and had featured model Liskula Cohen in several postings. One posting labelled her a "psychotic, lying, whoring ... skank."
The blogger had argued that the comments should be understood as opinion and hyperbole, and thus not stating anything factual that could be the subject of a libel claim.
But Judge Joan Madden disagreed. The use of the words as captions to "sexually provocative" photographs of the model reinforce the sexual overtones of the words, Madden held, and thus "the words 'skank,' 'skanky' and 'ho' carry a negative implication of sexual promiscuity, and as such as resonably susceptible of a defamatory connotation and are actionable."
Because Cohen had established the basis for a libel suit, the judge ordered Google, which had hosted the blog through its blogger.com site, to reveal the identity of the blogger.
ABC's Good Morning Amercia had a feature on this ruling this morning, told from the model's point of view. Here is the accompanying story by Rich McHugh and Noel Hartment, headed "Model Liskula Cohen Wins Court Battle with Google to Learn Blogger's Identity."
Here are some RCFP links to earlier stories on anonymous commenters. The ILB also has been following this topic. A search for the word "anonymous" will turn them up (unfortunately along with a number of unrelated entries containing the word.)
Posted by Marcia Oddi on August 19, 2009 10:04 AM
Posted to Courts in general
Ind. Law - "IPS wants to put an end to students' sexting"
Ken Kosky's NWI Times' "It's the Law" column June 15th, looked at "sexting" -- the ILB entry includes links to several earlier entries on the topic. Also of note is this March 27th ILB entry.
Today Andy Gammill has a front-page Indianapolis Star story headed "IPS wants to put an end to students' sexting." Some quotes:
Indianapolis Public Schools is drafting a new policy to ban -- and also warn parents about -- something that didn't exist even a few years ago: sexting.The district wants to take a strong stand on students sending sexual images of themselves or others from cell phones while at school, said Barry Olshin, a central office administrator who headed a committee on the topic.
Many parents, Olshin said, don't know that their teens may be sending nude or other sexual images of themselves and don't realize the students might be committing a crime if they pass on pictures of others.
"We have been concerned about it for quite a while," he said. The district wants "parents to understand exactly what the law is and what the possible consequences are."
The School Board will consider a formal policy banning sexting and a warning to parents at a committee meeting at 5:30 p.m. today and likely will adopt a policy next month.
The new policy is being driven, in part, by cases the district has confronted, including one high-profile incident last year at Marshall Community School where students passed around a video of a girl secretly taped with a cell phone while she was having sex. In addition, the Indiana School Boards Association has recommended that districts address the issue. * * *
A survey last year by the National Campaign to Prevent Teen and Unplanned Pregnancy found that about a third of teenage boys and a quarter of teen girls say they've had private nude or semi-nude images of others shared with them.
Depending on the students involved and their ages, teens involved in sexting could be charged with possession or distribution of child pornography.
AdvertisementRocky Grismore, principal at Manual High School, said sexting has become an issue in the past few years as more students own cell phones with cameras.
He estimates that it comes up several times each school year, especially when students fight about images that were meant to be seen by only one person or a few people.
Posted by Marcia Oddi on August 19, 2009 09:54 AM
Posted to Indiana Law
Courts - "Astor Trial Plods On, Trying the Patience of Many "
Adding to this long list of earlier Brooke Astor estate trial entries, this story, by A. G. Sultzberger and John Eligon was in the August 17th NY Times. It begins:
The Astor trial, three months in, had bogged down once again.With the jury out of the room, John R. Cuti, a defense lawyer, voiced what has become a common complaint by many people in the courtroom: He accused the prosecution of taking too long to make a point.
“I didn’t realize you were my time-management consultant,” Joel J. Seidemann, an assistant district attorney, fired back during the exchange last month.
“You could use one,” snipped Mr. Cuti.
Much like the woman at the center of it, the Astor trial has had a life longer than anyone could have reasonably expected. After crawling through 72 witnesses during 17 weeks of testimony — longer than the whole trial was supposed to take — the prosecution is expected to wrap up its case on Tuesday, leaving lawyers to debate whether the avalanche of information has advanced the case or obscured it.
Posted by Marcia Oddi on August 19, 2009 09:47 AM
Posted to Courts in general
Courts - More on "Two Kentucky diet-drug lawyers permanently disbarred"
Updating this Oct. 24, 2008 ILB entry, that headline wasn't the half of it. This story yesterday from the Lexington Herald-Leader, reported by Beth Musgrave, is headlined "Fen-phen attorneys sentenced to decades in prison: 25 years for Gallion, 20 for Cunningham." The story begins:
COVINGTON — Two disbarred lawyers convicted of taking millions of dollars from their former clients are likely to spend much of their remaining lives in a federal prison.Also yesterday, Brett Barrouquere of the Associated Press had this story, headed "Attorneys Convicted Over Diet-Drug Settlement Sentenced to Jail, Ordered to Pay $127 Million."U.S. District Judge Danny Reeves sentenced William Gallion, 58, to 25 years in prison and Shirley Cunningham Jr., 54, to 20 years in prison on Monday after a nearly daylong sentencing hearing in federal court in Covington.
Both sentences were less than what prosecutors had recommended for the two men, who were convicted in April of taking about $94 million from a $200 million fen-phen settlement that should have gone to their former clients in a 2001 Boone Circuit Court case.
Posted by Marcia Oddi on August 19, 2009 09:40 AM
Posted to Courts in general
Ind. Decisions - "Indiana Supreme Court asked for clarity on local sex offender restrictions"
"Ruling in Plainfield's case considered key for Indiana communities with similar rules" was the headline to a story Sept. 25, 2008 quoted in this ILB entry. The Sept. 24th Court of Appeals opinion was in the case of John Doe v. Town of Plainfield, Indiana.
Doe's petition for transfer was filed Oct. 23, 2008. The Supreme Court has not yet acted on the petition.
Charles Wilson of the AP has written a comprehensive story on the appeal effort. The Louisville Courier Journal has a complete version of the story, dated Aug. 18th. Some quotes:
The Indiana Supreme Court has been asked to prevent an Indianapolis suburb from banning sex offenders from public parks in a case that could expand a trend of state court rulings finding constitutional problems with restrictions on sex offenders.The Jeffersonville case is Eric Dowdell v. City of Jeffersonville. See this June 10th ILB entry. More from Wilson's story:The American Civil Liberties Union of Indiana appealed a state Court of Appeals ruling that upheld Plainfield's ban last September. So far the high court hasn't said whether it will hear the case brought by a sex offender listed only as John Doe in court documents.
The case could join a handful of recent Indiana rulings on laws that restrict sex offenders' activities after they've done their time, including one in Jeffersonville.
Last month, the Supreme Court ruled that a state law that prohibits convicted sex offenders from living within 1,000 feet of a school, public park or youth program center could not be used to force a sex offender to move from a home where he had lived for 20 years. In April, the high court overturned a man's conviction for not registering as a sex offender because he had already completed a sentence for child molestation before the state's Sex Offender Registration Act was passed.The Supreme Court decision was State of Indiana v. Anthony W. Pollard, from July 1st. See this ILB entry from July 4th for background. More from the AP story:And in the Jeffersonville case, the Supreme Court has been asked to review a Court of Appeals ruling in June that found Jeffersonville officials unconstitutionally applied a park ban against a man who no longer was required to register as an offender.
Joel Schumm, a professor at the Indiana University School of Law in Indianapolis, said Indiana appears to be more willing to consider such cases than other states where similar bans are generally upheld.
“The court's shown a willingness to take a hard and thoughtful look at these kinds of cases,” he said.
Schumm said the ACLU of Indiana is simply asking the court to take the “next step” in restricting such ordinances by finding that Plainfield's ban also violates a state constitutional prohibition on excessive punishment.
Besides arguing that the ordinance retroactively increased the penalty for the plaintiff's original offense, the ACLU contends that the use of public parks is a constitutionally protected “core value” that all citizens have the right to enjoy unless they forfeit that right by committing a crime in a park.
Supporters of similar bans argue the ordinances are needed to protect children because sex offenders have a high risk of repeat offenses. Opponents like the ACLU argue that the bans often unconstitutionally continue to punish individuals who already have served prison sentences and probation. * * *For more, see this Oct. 31, 2008 ILB entry and this one from Sept. 25, 2008, both headed "Ruling in Plainfield's case considered key for Indiana communities with similar rules", quoting an Indy Star story.The plaintiff in the ACLU case was convicted in 2001 for child exploitation and possession of child pornography. He was released from probation in August 2004. He was visiting the Splash Island water park with his young son in June 2005, when police warned him not to return because he was listed on the sex offender registry.
“Our view is you can go anywhere you want to go, just not the park,” [attorney Mel Daniel, who handled the appeal for Plainfield] said.
Falk countered: “There are lots of public places. Do we ban people from sidewalks? Do we ban people from public buildings?”
The Supreme Court's decision in the case could affect other Indiana communities. Officials in Lebanon, about 25 miles northwest of Indianapolis, are contemplating a park ban [ILB -see this entry from July 16th], and the ACLU has put its lawsuit on hold against the Indianapolis suburb of Greenwood, which bans people convicted of certain sex-related and drug-related offenses from its parks.
More litigation will likely ensue until the high court clarifies the law, and it should “settle the law so that every community in Indiana will understand that the law is settled,” the ACLU said in court documents.
The Plainfield case has been awaiting transfer to the high court for nine months, which is unusually long, said Schumm, the university professor. That might indicate the court is preparing an opinion or having trouble agreeing on what to do, he said.
If the Supreme Court doesn't hear the case, the Court of Appeals ruling upholding Plainfield's ordinance stands. If it does hear the case, the Supreme Court could reverse, uphold or modify the decision.
Today Sophia Voravong of the Lafayette Journal Courier has this story, headed "Plainfield case may clarify rules for Ind. sex offenders." Some quotes:
A Supreme Court decision could expand on a series of recent rulings that found constitutional problems with various restrictions on convicted sex offenders.The ILB last wrote about the 7th Circuit's City of Lafayette decision on May 5th, in an entry headed "The tricky sex offender case that could trip up one of the judges on the short list to replace Souter."Several rulings dealt with legislation, passed in 2006, that prohibits offenders against children from living within 1,000 feet of a school, public park or youth program center.
The Supreme Court last month found that the residency restriction violated the Indiana Constitution by retroactively punishing a Blackford County sex offender.
In February 2000, Lafayette banned a three-time convicted child molester from all city public school and park properties.
This came after the man, identified only as John Doe in court documents, admitted during a group therapy session that he had visited Murdock Park, watched children and had sexual fantasies.
Doe filed a lawsuit on grounds that the ban violated his First Amendment rights. The 7th Circuit Court of Appeals later ruled in Lafayette's favor.
It's unclear whether a Supreme Court decision in the Plainfield case would have any impact on Lafayette's John Doe. The ban was related only to Doe as an individual, Mayor Tony Roswarski said Tuesday.
City attorney Ed Chosnek said Lafayette has a trespassing ordinance that serves as a guideline when deciding if someone will be banned from public parks.
Posted by Marcia Oddi on August 19, 2009 08:21 AM
Posted to Ind. App.Ct. Decisions
Tuesday, August 18, 2009
Ind. Decisions - Transfer list for week ending August 14, 2009 not yet available
Still waiting on the Clerk's Transfer List for the week ending August 14th.
As noted in this entry from August 14th: (1) one transfer was granted last week; and (2) there was no transfer list for the week ending August 7th.
Posted by Marcia Oddi on August 18, 2009 03:22 PM
Posted to Indiana Transfer Lists
Environment - "'Chicken underground' emerges in Indiana"
Bob Scott reports in the Indianapolis Star:
Gay-Ellen Stulp and Stephany Miskunas are lobbying the Lafayette City Council to allow them to keep pet chickens at their homes in the historic Highland Park neighborhood.I was unaware that I legally could raise chickens here in downtown Indianapolis.Stulp said she wants city council members to amend the ordinance that forbids having chickens in the city. The city council's Public Health Welfare and Safety Committee plans to consider the matter. * * *
Many cities allow urban chicken farming, including Indianapolis, St. Louis, San Francisco, Ann Arbor, Mich., and Madison, Wis.
Restrictions are placed on the chicken lovers in most of those cases, though. For example, in most cases, hens are allowed but not roosters, only three or four chickens are permitted at each household, and chickens must be kept from leaving the property.
The urban chicken movement has businesses that sell equipment and offer tips for raising the birds. * * *
Stulp said backyard hobbyists are propagating the heirloom varieties of chicken.
"This is part of the 'back to the earth' movement," said Stulp, an Eli Lilly chemical engineer. "It's a harmless hobby.
"After the ordinance was changed in Madison, Wis., there are now 150 families that have chickens."
Posted by Marcia Oddi on August 18, 2009 01:50 PM
Posted to Environment
Courts - "Va. Rushes To Address Ruling on Analysts: Drug-Case Demands Have Strained State Lab"
Still pending before the Indiana Supreme Court are two cases which may turn on the SCOTUS ruling June 25th in the case of Melendez-Diaz v. Massachusetts. For details, see this June 24th ILB entry.
The ILB has had a long list of entries on the Melendez-Diaz decision and its implications.
Add to that list this lengthy August 18th story in the Washington Post, reported by Tom Jackman. Some quotes:
In July, the month after the Supreme Court ruled that experts' signed certificates alone are not enough to prove that suspected illicit drugs really are illicit drugs, defense attorneys in Virginia subpoenaed drug analysts 925 times. In July 2008, that number was 43.Officials with the state's Department of Forensic Science said that during the same month, their examiners spent 369 hours traveling to or testifying in courthouses across the state. In the previous 11 months, the examiners spent 230 hours going to court.
The courts committees of Virginia's General Assembly will start work Tuesday on emergency legislation designed to help the state respond to the Melendez-Diaz v. Massachusetts ruling, in which the Supreme Court said that drug or alcohol analysis certificates are "testimonial" and defendants are entitled to cross-examine the person who performed a drug or breath test. On Wednesday, the General Assembly will meet in a special session called by Gov. Timothy M. Kaine (D) specifically to respond to the impact of the ruling.
Among the proposals the legislature will consider:
-- Delete the requirement that prosecutors prove that a breath-test machine has been inspected and calibrated within the past six months. The machines must still be inspected every six months, and defendants can still challenge the machine's validity, but the inspection record would be designated a "business record," which Melendez-Diaz author Justice Antonin Scalia wrote "may well qualify as nontestimonial records" not subject to cross-examination.
-- Curb the right to a "speedy trial" when prosecution witnesses, such as lab analysts, are not available to testify, up to 90 days for those in jail and 180 days for those not in jail.
-- Require defense attorneys to formally object to a lab or DWI certificate in advance, and if they do, prosecutors must then use lab analysts as live witnesses in proving their case, to conform with Melendez-Diaz. Virginia law now forces the defense to call the analyst after his or her certificate has been admitted.
Although the new legislation might provide more breathing room for the state lab, legislators acknowledge that it does not address their most pressing need: more analysts, to examine not only drugs but also DNA, blood and other crime-scene evidence that defendants are challenging more frequently. That will have to wait until the General Assembly's regular session in January, by which time authorities think they will have a better idea of how this week's changes will affect the need for live testimony by the state's 160 scientists.
Posted by Marcia Oddi on August 18, 2009 01:36 PM
Posted to Courts in general
Ind. Decisions - One Indiana case decided by 7th Circuit today; plus an Illinois case of interest
In U.S. v. Foster (SD Ind., Judge Young), a 6-page opinion, Judge Cudahy writes:
Darryl Foster pleaded guilty to violating the federal Gun Control Act of 1968, 18 U.S.C. § 921 et seq., which prohibits convicted felons from possessing a firearm. The district court enhanced Foster’s sentence pursuant to the Armed Career Criminal Act (ACCA) because it found that he had three prior violent felony convictions and that he used his gun in connection with the commission of a violent crime, to wit: criminal recklessness. Foster has affirmatively waived any challenge to the ACCA enhancement, and the argument that he does make on appeal is frivolous. We therefore affirm.In Hanes v. Zurick, et al (ND Ill.), a 13-page opinion, Judge Wood writes:
Stephen Hanes sued the Village of Grayslake, Illinois, and eleven officers of its police department, alleging that the officers denied him—and only him—equal protection of the law, solely for reasons of personal animus. Relying on Hilton v. City of Wheeling, 209 F.3d 1005 (7th Cir. 2000), the district court denied the officers’ motion to dismiss, which sought dismissal both on the basis of qualified immunity and for failure to state a claim. Under Hilton, a plaintiff states such a claim by alleging that “the police decided to withdraw all protection . . . out of sheer malice.” Id. at 1007. Focusing on their qualified immunity theory, the officers filed this interlocutory appeal, in which they invite us to reconsider Hilton in light of the Supreme Court’s holding in Engquist v. Oregon Dep’t of Agriculture, 128 S. Ct. 2146 (2008), that no class-of-one equal protection claim can be made in the public-employment context. We reject the officers’ invitation. Based on the significant differences between public employment and policing, we hold that Hilton remains good law after Engquist. We therefore affirm.
Posted by Marcia Oddi on August 18, 2009 01:25 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)
For publication opinions today (2):
In Myers Blaker v. Ronald Young, II, M.D., and Indianapolis Neurosurgical Group, a 14-page, 2-1 opinion, Judge Friedlander writes:
Myers Blaker appeals from the trial court's grant of summary judgment in favor of Ronald Young, II, M.D. and Indianapolis Neurosurgical Group (ING) (collectively, Dr. Young) on Blaker's claim for medical malpractice. Blaker presents two issues for review: 1. Did the trial court properly grant summary judgment? 2. Did the trial court abuse its discretion in denying Blaker's request to supplement his designated evidence with evidence relating to the issue of causation? We affirm. * * *In Anthony Street v. State of Indiana , a 5-page opinion, Judge Vaidik writes:BAKER, C.J., concurs.
RILEY, J., dissenting with separate opinion. [which concludes] In sum, there is no evidence that Dr. Young identified the right PICA; and the inferences from the record, the operative note, the notation of identification of the left PICA and the silence as to the right PICA identification create a genuine issue of material fact as to whether Dr. Young complied with the standard of care. Therefore, I would reverse the trial court and remand for further proceedings.
Anthony Street appeals his conviction for Class B misdemeanor public intoxication. Specifically, Street contends that the evidence is insufficient to support his conviction because the State failed to prove that he was knowingly in a public place at the time of his arrest for public intoxication. Concluding that a knowing mens rea is not an element of the offense of public intoxication, we affirm Street's conviction.NFP civil opinions today (1):
In In re the marriage of: Cheryl Groseclose v. Lance Groseclose (NFP), a 7-page opinion, Cheif Judge Baker writes:
Appellant-respondent Cheryl Groseclose, by her next friend and guardian, Rita Dalbey, appeals from the trial court’s order dissolving the marriage of Cheryl and appellee-petitioner Lance Groseclose and dividing the marital estate. Cheryl argues that the trial court erred by declining to award her spousal maintenance and by neglecting to consider tax consequences of its award to her of a 401(k) account. Finding no error, we affirm. * * *NFP criminal opinions today (3):The sole evidence—aside from the fact that Cheryl is unemployed—to which she directs our attention in support of a conclusion that she is incapacitated is a document appointing Dalbey to be Cheryl’s guardian in Illinois. The document is signed by a clerk, not by a judge. It describes Cheryl as an “alleged disabled Person,” implying that a finding of disability had not actually been made. The document is one paragraph and contains no facts whatsoever about Cheryl and her alleged disability. Though Cheryl alleges that an Illinois court has made a finding of incapacity, she has never provided a document signed by a judge that, in fact, reaches such a conclusion.
She argues that we must give full faith and credit to judgments of courts in sister states. While that may be true, the only judgment provided to us is a guardianship; not a finding of incapacity. And even if we were to assume that a finding of incapacity is implied by the guardianship, there is absolutely nothing in the record tending to establish that whatever unnamed incapacity Cheryl suffers from meets the statutory criteria set forth above. In other words, even if she is considered to be disabled by Illinois law, there is no evidence in the record that the disability materially affects her ability to support herself.
Susan Miller v. State of Indiana (NFP)
Ocie Brasher v. State of Indiana (NFP)
Thomas K. Patterson v. State of Indiana (NFP)
Posted by Marcia Oddi on August 18, 2009 12:49 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - More on "A call for a moratorium on executions"
Updating this ILB entry from August 9th, Jon Murray has a story today in the Indianapolis Star headed "Activists again seek moratorium on death penalty in Indiana." Here are some quotes from the later part of the lengthy story:
Marion County Prosecutor Carl Brizzi said Indiana's rules for death-penalty cases already protect defendants by providing top-notch lawyers, with costs shared by counties and the state.Here are some earlier ILB entries on the monetary cost of the death penalty:"Whether or not there should be a death penalty is for the people and the legislature to decide," Brizzi said. "In this state, there are more than adequate protections in place that ensure that a defendant gets a fair trial and multiple appeals."
But the costs -- estimated by a state panel in 2002 at an average of $624,000 for defense and appeals, eight times what it costs when the most severe option is life imprisonment without parole -- often strain government budgets.
In western Indiana's rural Parke County, county officials increased the income tax by 0.25 percentage point in 2007 to cover the costs of a death-penalty trial that ultimately ended with a guilty plea and a life sentence. * * *
Thirty-five states have death penalty statutes.
"I think states are now willing to look at the larger question, given its costs and how little we're using it," said Richard Dieter, executive director of the Death Penalty Information Center, based in Washington. "Prosecutors are using it sparingly, even in Texas."
Indiana's governor has said he has moral reservations about capital punishment but thinks it's fitting for the worst crimes. * * *
Among board members and official advisers to the [Indiana Coalition Acting to Suspend Executions, or InCASE] are former Kernan administration officials Tom McKenna and Jon Laramore. Another, community activist Tim Streett, supported then-Gov. Kernan's decision in January 2005 to commute the death sentence of his father's killer to life imprisonment.
Cost issues in particular, Laramore said, could resonate with people who otherwise support capital punishment.
Ind. Decisions - More on "Third trial ordered for Camm""Another Camm trial would put strain on county’s finances" is the headline to this story today by Chris Morris of the New Albany / Jeffersonville News & Tribune:Prosecuting the two David Camm murder trials and subsequent appeals have cost Floyd...
Posted in The Indiana Law Blog on June 27, 2009 09:54 AM
Law - More on "Citing Cost, States Consider End to Death Penalty"
Updating this ILB entry from Feb. 25th, the Washington Post has a similar story today by Deborah Hastings of the AP. The long story begins:-- After decades of moral arguments reaching biblical proportions, after long, twisted journeys to the nation's...
Posted in The Indiana Law Blog on March 7, 2009 12:39 PM
Law - "Citing Cost, States Consider End to Death Penalty"That is the headline to this lengthy NY Times story today by Ian Urbina. Some quotes:When Gov. Martin O’Malley appeared before the Maryland Senate last week, he made an unconventional argument that is becoming increasingly popular in cash-strapped states: abolish...
Posted in The Indiana Law Blog on February 25, 2009 08:01 AM
Posted by Marcia Oddi on August 18, 2009 12:23 PM
Posted to Indiana Courts
Ind. Decisions - Brief filed in response to AG's July 27th petition for rehearing in David Camm case
Updating this ILB entry from July 28, which includes a link to the AG's petition for rehearing, and this entry from August 2nd, today Harold J. Adams of the Louisville Courier Journal reports:
The Indiana Supreme Court ruled clearly and correctly when it overturned the triple-murder conviction of former Indiana State Trooper David Camm and should stick with that decision, Camm's lawyers have argued in a brief filed with the court.The ILB would like to obtain a copy of the Camm brief for posting.The brief submitted Friday came in response to a July 27 petition from the Indiana Attorney General's office asking the court to reconsider its ruling that struck down Camm's 2006 conviction of murdering his wife Kimberly Camm and their children, Bradley, 7, and Jill, 5, in the garage of their Georgetown home in 2000.
“There's really no reason for a rehearing,” defense attorney Stacy Uliana said in an interview Monday. “Everything's been thoroughly considered and argued and briefed almost to exhaustion and they haven't presented anything new.”
In its 4-1 decision in June, the Supreme Court ruled that Floyd County Prosecutor Keith Henderson should not have been allowed to argue that Camm's motive for shooting his family was to cover up alleged sexual molestation of his daughter.
“The state built its entire theory on the molestation” as well as hearsay testimony from a friend of Kim Camm that she was going to meet her husband at home between 7 and 7:30 p.m. on the night of the murders, David Camm's lawyers wrote. “If the molestation or hearsay goes, the house of cards falls.” * * *
Camm has twice been convicted of the killings, but both convictions were overturned. The Indiana Court of Appeals, in rejecting the first conviction, cautioned the prosecution about relying on the molestation claim.
“That appellate court told them, ‘This is very shaky ground. Do not go there.' And they went there anyway because they don't have a case without it,” Uliana said. * * *
After Camm's retrial ended, jurors took the unusual step of calling a news conference where they cited the molestation claim as a primary reason they convicted Camm. But one of the jurors wrote a letter to the Supreme Court last month claiming that evidence wasn't an important factor.
Juror Darlene Short wrote in a July 2 letter that “these injuries were not the basis of the guilty verdict. … I strongly encourage the Indiana Supreme Court to hold a second hearing … due to the overwhelming admissible evidence that points to Camm's presence at the time of this tragic crime.”
But Supreme Court Administrator Kevin Smith, in an Aug. 13 response to Short, said the rules governing judicial conduct and appellate procedure “prevent the justices from considering letters from jurors or other persons interested in the case.” Smith concluded, “your letter has not been and will not be considered by the court.”
Posted by Marcia Oddi on August 18, 2009 12:09 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Courts - "Judge Morton retired: Have garden, will travel"
Sarah O. Wilson's lengthy Aug. 15th story in the Rochester Sentinel begins:
After 30 years as judge of Fulton Circuit Court, a retired Doug Morton is finding time for himself these days, and it usually includes his grandchildren, gardens, golf game or some judicial assignments.Later in the story, this interesting section:His new life seems to please him.
Morton, 63, took the bench on Jan. 1, 1979, and chose to end his career after three decades of deciding "disputes between individuals." A. Christopher Lee succeeded him Jan. 1.
Morton continues to serve the state as a senior judge, which he describes as somewhat like a substitute teacher. He needs to serve at least 30 days a year to receive state health insurance. He also continues the special judge assignments he received before retirement and serves as a hearing officer at the behest of the state Supreme Court.
"I have elected not to go back into private practice," he said. "I've been gone (from that situation) 30 years. That's a long time."
If called upon, he could mediate legal disputes. He explained that the goal in any dispute is to settle matters outside of the courtroom; inside "the loser loses more than the winner wins," he said.
Morton said the judiciary experienced numerous changes throughout his career. Among them:Finally, Judge Morton recounts some of his memories:• "Computers changed everything. The sheer volume of work you can do." Communication between everybody, including the Supreme Court, is substantially improved. "Having computers allows you to spend more time judging and less time on administration."
• The creation of a Fulton Superior Court in 1993 took some pressure off Circuit Court. For example, felonies, not traffic-related, now are divided between the two courts. Circuit Court still has all juvenile cases.
• The addition of public defenders. "Instead of judges calling and asking a local attorney to take a case, we have a professional probation staff. I (was) very proud to be associated with the staff there. They are a marvelous set of people."
• A rise in self-representation. "Two-thirds of the (150 to 160) dissolutions (per year) don't have lawyers representing them. If it (the divorce settlement) is agreed to, it's OK, and I (could) help them make it legal. If it is not agreed to, they leave the courtroom and are not divorced."
• Fewer jury trials. Between 1979 and 1995, Morton averaged 16 jury trials a year and four to six of those were civil cases. More civil cases are resolved before trial, "probably" due to mediation.
• Gender balance. "When I took the bench, there were only two female judges statewide. Now more than 25 percent of the state judiciary is female. That truly has changed, big change."
• Murder trials. Larry Williams' was his first one, in 1980. "The first one is the most memorable." He said he handled four murder trials and another nine or 10 pleas during his career. Williams, 21, of Plymouth was convicted by a 12-person jury May 9, 1980, of murder in connection with the death of Claude Yarian, a Bourbon store owner, on March 6, 1979. Morton sentenced him to 130 years in prison, which the Indiana Supreme Court ordered him to modify to 110 years to do away with a 20-year sentence imposed for armed robbery.• His shortest jury trial lasted one day. "We seated the jury, heard evidence and took a verdict before 3."
• His longest sequence of jury work lasted almost three months in 1994, with a six-week trial "right on top of" a five-week trial.
• The Caston earring case. "That was closer than people thought. The legal issues are right from the Bill of Rights, the Ninth Amendment, which speaks to personal appearance. It doesn't specifically say that, but the Supreme Court has taken it there." The trial was "high profile," he said. In 1991, Jimmy Hines, then a fourth-grader at Caston schools, wore a stud earring to school. When Caston instituted a ban on such behavior by elementary students in 1992, Hines continued to wear the earring, and Caston threatened his expulsion for doing so. The Indiana Civil Liberties Union sued on his behalf. On Sept. 30, 1993, Morton ruled Caston could impose a dress code based on "community standards" that bans earrings on boys. ICLU argued that Hines had a right to self-expression and individual identity. In February 1996, the Supreme Court accepted transfer, heard oral arguments and refused transfer of the Indiana Court of Appeals decision, which upheld Morton's decision.
Posted by Marcia Oddi on August 18, 2009 11:22 AM
Posted to Indiana Courts
Ind. Courts - "Defendant will serve prison time under credit restriction, a recent Indiana law that states certain crimes can't receive the usual time off for good behavior"
James D. Wolf Jr. reports in the Gary Post-Tribune, in a story that begins:
VALPARAISO -- A man who moved from Georgia to Portage to live with a single mother he met on the Internet received an 18-year sentence for child molesting, plus another 18 years of probation after that.Christopher C. Carmon, also known as Christopher C. Wessels, 41, will serve prison time under credit restriction, a recent Indiana law that states certain crimes can't receive the usual time off for good behavior, which could be 50 percent. Those under it must serve about 85 percent of their time at least.
"Our (Indiana) Supreme Court says the maximum sentence is to be saved for the worst of the worst. In my over 20 years on the bench, this comes close to the worst," Judge Roger Bradford said before imposing the sentence Monday.
Posted by Marcia Oddi on August 18, 2009 11:14 AM
Posted to Indiana Courts
Monday, August 17, 2009
Ind. Courts - "Dearborn Judge Introduces New Court For Addicts"
Southeast Indiana's Eagle News 99.3 FM has this story today by Mike Perleberg:
(Lawrenceburg, IN) - A Dearborn County judge has decided to use a new, jail-free method of rehabilitating drug addicts.Judge Jon ClearyDearborn Superior Court I Judge Jon Cleary says the Accountability, Change, and Community Court, also called A.C.C. Court, is worth trying as inner-city drugs like cocaine and heroin spread into rural areas.
Cleary says the signs are apparent in southeast Indiana. The Dearborn County Law Enforcement Center's jail is currently housing over 260 inmates. There have also been over 40 county citizens that have died of drug overdose in 2009.
The A.C.C. Court offers an alternative to incarceration for non-violent, addicted, and repeat offenders says Cleary. The minimum 52-week program uses intensive judicial supervision, continuous drug testing, sanctions, incentives, and treatment to help break convicts' addictions to keep them from cycling through the judicial system again.
Judge Cleary says he implemented the A.C.C. Court with the goals of "lower recidivism rates, a safer community, treatment of addiction, lower costs for citizens, and most importantly, to save lives."
Posted by Marcia Oddi on August 17, 2009 03:47 PM
Posted to Indiana Courts
Law - Prof. Dawn Johnsen to teach course this semester at IU Maurer School of Law
So reports The Blog of Legal Times this afternoon. A quote:
Dawn Johnsen is making a tentative return to the classroom after seven months of waiting for the Senate to confirm her to one of the most politically sensitive posts in the Justice Department.Johnsen, nominated in January to head the Office of Legal Counsel, will teach a seminar this fall at Indiana University’s Maurer School of Law. She will commute weekly from Washington to Bloomington, Ind., while she continues to wait for confirmation, said Debbie O’Leary, a spokeswoman for the law school. * * *
Johnsen had hoped to begin months ago at the Office of Legal Counsel, even moving with her family to Washington over the summer, friends and colleagues say. She worked in the Office of Legal Counsel during the Clinton administration, serving for a year as acting head of the office, and has taught at Indiana University since 1998.
“Since she’s still on faculty, why not teach?” O’Leary said.
The seminar, which Johnsen has taught before, is aimed at 2Ls and 3Ls. It’s titled “Sexuality, Reproduction and the Law.” According to the course description, students will “explore governmental regulation of sexuality and reproduction in the United States. We will focus on regulation aimed at sexual activity, reproduction and sexual orientation, with particular attention to the constitutional protections afforded in those areas.”
Posted by Marcia Oddi on August 17, 2009 03:33 PM
Posted to General Law Related
Ind. Law - Golf carts update
Starting off with this eye-catching story from the August 15th Gary Post Tribune, reported by Jon Seidel:
GARY -- Police arrested a man this week for driving a golf cart down a city street while intoxicated.Adding to the long list of earlier ILB golf cart reports, here a some recent stories:Cpl. Gabrielle King said officers discovered John P. O'Hara, 23, driving a white golf cart at Ironwood Avenue and Lawrence Street on Wednesday, blocking the path of a truck that was trying to pass.
King said an officer activated a siren and followed the golf cart, but the driver wouldn't pull over. She said an officer saw the cart's three occupants dump a beverage from red plastic cups.
Police said they noticed a strong odor of alcohol on O'Hara's breath and clothing, and they noticed his eyes were watery and bloodshot.
O'Hara then told officers he had a little to drink, "maybe a 12-pack."
An officer asked O'Hara to take a portable breathalyzer test, on which he registered a 0.289 percent blood alcohol content. The legal driving limit in Indiana is 0.08 percent.
- Ashley - "Golf Cart Ordinance Passed In Ashley" - An Aug. 11th story re WLKI.com reported:
(ASHLEY) - Ashley has become the latest community to allow the driving of golf carts. The Ashley Town Council passed an ordinance Monday night which allows golf carts to be driven on most streets in town. Ashley Town Council member Paul Kennedy says the ordinance was passed after the subject came up during their July meeting. The ordinance allows the golf carts to be driven by those with a valid drivers license and proof of insurance. They can only be driven between April 1st and November 1st within the town limits. Golf carts will not be allowed on some streets such as State Street and H.L. Thompson Drive. The ordinance only covers golf carts, it does not include such vehicles as four wheelers or A.T.V.'s. Kennedy says the Ashley ordinance is in line with state law. Unlike the Hamilton golf cart law, Kennedy says Ashley residents will not have to register their vehicles.
- Linton - A somewhat confusing Aug. 11th story in the Greene County Daily World, reported by Timberly Ferree, begins:
Talk turned to golf carts during the Linton City Council's August monthly meeting.
Linton City Attorney Tim Shonk provided the details and answered several questions about the city's working document that is tied to Indiana code.
"The problem in drafting the ordinance is that the Senate has added to the original House (of Representatives) bill," Shonk explained.
In April, the state approved legislation allowing golf carts to be driven in towns and cities beginning July 1 if there is a local ordinance allowing it.
Provisions within the current legislation require the driver of the golf cart to have a valid driver's license and the vehicle to have insurance as well as a revolving red or amber light or slow-moving-vehicle sign.
- Berne - The Decatur Daily Democrat and their reporter J Swygard has had consistently good coverage of this topic. This August 11th story begins:
Proposed regulations governing the legal operation of golf carts in Berne were unofficially introduced at Monday evening's meeting of Berne City Council when council members and city residents in attendance received copies of a draft ordinance outlining restrictions on the use of the popular four-wheeled vehicles.
Included in the draft legislation, which council intends to adopt in two weeks, were restrictions on the maximum speed, hours of legal operation, and the number and minimum age of golf cart passengers.
The Indiana General Assembly in its recent session adopted a statute giving municipalities across the state the ability to draft ordinances governing golf cart use in their respective communities. Until such ordinances are adopted, the use of golf carts technically remains illegal on city streets.
At its July 27 meeting, council listened as a handful of local residents offered their thoughts about legislation that ultimately will govern the use of golf carts on city streets. Council members vowed to act quickly to adopt some type of ordinance that addresses necessary safety issues without being overly restrictive on golf cart operators. The towns of Monroe and Geneva and the city of Decatur have adopted guidelines governing the use of those motorized vehicles.
The proposed Berne ordinance restricts the use of golf carts to secondary streets within the city. The vehicles may cross U.S. 27 and State Route 218 at any intersection, but cannot legally be operated on those highways.
- Etna Green - This snippet from an Aug. 12th story in the Warsaw Times-Union:
Town attorney Jay Rigdon brought to the council's attention the rising popularity among towns concerning the new golf cart ordinances. After several minutes of discussion the council remained undecided on the matter. Rigdon then suggested he draft an example ordinance based on other ordinances of the same matter and present it at the next meeting.
- Berne - In Berne:
Several residents supporting the legislation indicated that they were hoping that the ordinance would have been passed on Tuesday evening. Biberstein said that at the next council meeting (Aug. 24), council members would have the option of passing the proposed ordinance in emergency or take it through its usual course of legislation.
That is part of a detailed story by Jim Langham in the Aug. 12th Berne News.
Council member Ron Dull said that he is in favor of pushing the legislation through in emergency fashion and passing it at the next meeting. Other council members agreed with Dull, to the applause of the supportive residents.
Posted by Marcia Oddi on August 17, 2009 01:25 PM
Posted to Indiana Government | Indiana Law
Ind. Decisions - Interesting procedural decision in Illinois case by Judge Tinder
In Eskridge v. Cook County (ND Ill.), a 9-page opinion, Judge Tinder writes:
After their daughter tragically died of pneumonia, Lanell and Margaret Eskridge sued two Chicago health care facilities for medical malpractice. The case developed into multiple actions in both Illinois and federal court, and, amid the procedural complexity, the Eskridges’ counsel made a critical error. In the federal district court, counsel obtained a voluntary dismissal order that effectively precluded the Eskridges from pursuing their lawsuit. The Eskridges moved for relief from that order under Fed. R. Civ. P. 60(b), but the district court denied their motion. On appeal, the Eskridges face the formidable challenge of showing that the court abused its discretion in denying relief under Rule 60(b). We conclude that the Eskridges have not met this challenge. * * *We do not say that the type of legal error that occurred here, based on the pitfalls of parallel federal and state lawsuits, could never justify relief under Rule 60(b). Cf. Arrieta v. Battaglia, 461 F.3d 861, 865 (7th Cir. 2006) (characterizing the voluntary dismissal of a federal habeas petition that could not be refiled as a “mistake” within the meaning of Rule 60(b)(1)). Even here, other “relevant circumstances” highlighted by the Eskridges, including their sunk litigation costs and interest in reaching the merits of their case, might have convinced a different district judge to excuse their counsel’s procedural error. See Webb, 147 F.3d at 622 (describing the equitable nature of relief under Rule 60(b)). * * *
Bottom line, the circumstances in support of the Eskridges’ Rule 60(b) motion were not so compelling that the district court abused its considerable discretion in denying relief. See Castro, 214 F.3d at 935 (Although “the circumstances of the present case may arguably constitute excusable neglect . . . they do not compel that conclusion.”); Webb, 147 F.3d at 622 (“The district court was not obliged to relieve [the defendant] of the burden of a unilateral mistake of law . . . .”). The court’s judgment is AFFIRMED.
Posted by Marcia Oddi on August 17, 2009 12:24 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)
For publication opinions today (3):
In Subhen Ghosh v. Indiana State Ethics Commission and Office of the Inspector General [argued July 24th], a 19-page opinion, Judge Robb writes:
Subhen Ghosh, a former employee with the Indiana Department of Environmental Management (“IDEM”), appeals the trial court's order affirming a report by the State Ethics Commission (the “Ethics Commission”) that concluded Ghosh violated a provision of the Ethics Code,1 specifically Indiana Code section 4-2-6-9(a), during his employment with IDEM. On appeal, Ghosh raises five issues, which we consolidate and restate as 1) whether the trial court properly concluded Ghosh was collaterally estopped from seeking reinstatement of his employment and 2) whether the trial court properly affirmed the Ethics Commission's decision to impose a monetary sanction. Concluding the trial court properly concluded Ghosh was collaterally estopped from seeking reinstatement and properly affirmed the Ethics Commission's decision to impose a monetary sanction, we affirm in part. However, we also conclude the amount of the sanction imposed by the Ethics Commission is not supported by substantial evidence and therefore remand for additional findings in that regard. * * *We agree with Ghosh that the Ethics Commission's decision is inconsistent to the extent it concluded his trips were authorized (and therefore not in violation of 42 Indiana Administrative Code section 1-5-12) on the one hand, while on the other hand it calculated his sanction for violating Indiana Code 4-2-6-9(a) by using the total number of miles he traveled during his trips to the gas station and described these trips as “unauthorized.” Id. at 106. Instead, the Ethics Commission should have focused on Indiana Code section 4-2-6-12(1), which authorizes it to impose a sanction for a violation of the Ethics Code in an amount “not to exceed three (3) times the value of any benefit received from the violation.” Ind. Code § 4-2-6-12(1). Because the Ethics Commission's findings and the record fail to explain how Ghosh's sanction of $456.96 is less than or equal to “three (3) times the value of any benefit” he received for violating Indiana Code section 4-2-6-9(a), we cannot say substantial evidence supports the amount of the sanction. Accordingly, we remand to the Ethics Commission for it to either make additional findings explaining how Ghosh's sanction of $456.96 is consistent with Indiana Code 4-2-6-12(1) or, in the alternative, to fashion a sanction that is consistent with the statute and supported by the evidence in the record. See Ind. Code § 4-21.5-5-15 (permitting a court conducting review under AOPA to “remand the case to the agency for further proceedings” where its decision is unsupported by substantial evidence).
In Rita V. Lang v. State of Indiana , one issue addressed is "Whether Lang filed her notice of appeal in a timely manner." Judge Riley writes:
We begin by addressing the State’s contention that Lang’s appeal is untimely, and, therefore, we do not have jurisdiction to consider the merits of this appeal. “A party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty (30) days after the entry of a Final Judgment.” Ind. Appellate Rule 9(A)(1). “Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited except as provided by P.C. R. 2.” App. R. 9(A)(5).In Jennifer Barber v. State of Indiana , an 11-page opinion, Judge Vaidik writes:The State contends that the relevant date for timeliness is January 5, because the trial court orally rendered its sentencing order and order of restitution on that date. * * * Lang contended that January 12 was the relevant date for consideration of timeliness because that was the date when the trial court’s written order was file stamped and entered as reflected in the Chronological Case Summary. In the alternative, Lang contended that the relevant date was January 9, 2009, the date on which the trial court reduced its order to writing and signed it. Lang explained that if her time to file a notice of appeal began on January 9, 2009, the due date would have been February 8, 2009, a Sunday, and, therefore, her notice of appeal would have been due on Monday, February 9, 2009. [which was the date her NOA was filed] * * *
We conclude that the rendition of the trial court’s Final Judgment occurred on January 9, 2009, when the trial court signed the sentencing and restitution orders, not when the trial court explained orally what its intentions were at the close of the sentencing hearing. Therefore, regardless of whether we interpret the January 5th oral statement by the trial court as notice, Lang had thirty days from January 9 to file her notice of appeal. As such, Lang had at least until Monday, February 9, 2009, to timely file her notice of appeal, which she did.
Jennifer Barber appeals her convictions for Class A misdemeanor operating while intoxicated and Class C misdemeanor failure to stop after an accident resulting in property damage. Specifically, Barber argues that the trial court abused its discretion in denying the motion to continue filed on the Monday morning of her bench trial, which was set a mere two months after her arrest, because her defense counsel had located two witnesses that weekend who supported her defense of involuntary intoxication. The trial court denied her motion because the deadline to file the witness list had passed two weeks before. In light of Barber's constitutional right to present a defense coupled with the strong presumption in favor of allowing the testimony of even late-disclosed witnesses, we conclude that the trial court abused its discretion in denying Barber's motion to continue. We therefore reverse the trial court and remand for a new trial. * * *NFP civil opinions today (2):Barber's defense was involuntary intoxication. Under Indiana law, “[i]t is a defense that the person who engaged in the prohibited conduct did so while he was intoxicated, only if the intoxication resulted from the introduction of a substance into his body: (1) without his consent; or (2) when he did not know that the substance might cause intoxication.” Ind. Code § 35-41-3-5. There is obvious prejudice to Barber from not being able to present the testimony of Collier and Mathis. Although Barber testified that she believed she was drugged, Collier would have testified that she believed the same thing happened to her on the evening of October 15, 2008, at the same American Legion. And according to defense counsel, Mathis would have supported both Barber's and Collier's testimony. This is the bolstering testimony of disinterested and objective witnesses. * * *
In light of Barber's right to present a defense, the strong presumption in favor of allowing the testimony of even late-disclosed witnesses, the lack of substantial prejudice to the State, and the resultant prejudice to Barber, we conclude that the trial court abused its discretion in denying Barber's motion to continue and therefore remand for a new trial.
[See also footnote 4 on p. 11, re a second argument: "The right to due process does not include the right to be given a chemical sobriety test in all circumstances. Parker v. State, 530 N.E.2d 128, 130 (Ind. Ct. App. 1988). To hold otherwise would be to transform the accused's right to due process into a power to compel the State to gather in the accused's behalf what might be exculpatory evidence."
Michelle Smout v. Steven Smout (NFP)
NFP criminal opinions today (4):
Geoffrey L. Lehman v. State of Indiana (NFP)
Milo Walker, Jr. v. State of Indiana (NFP)
Antoine Jefferson v. State of Indiana (NFP)
Samuel V. Fancher v. State of Indiana (NFP)
Posted by Marcia Oddi on August 17, 2009 11:09 AM
Posted to Ind. App.Ct. Decisions
Not Law but Interesting - Illinois Citizens Utility Board
This is cool. I don't think Indiana has an equivalent.
It is discussed in this Chicago Sun-Times story today, headed "Web site helps cell phone users cut costs ."
Posted by Marcia Oddi on August 17, 2009 08:46 AM
Posted to General News
Ind. Law - It's the Law: "Ignoring school bus stops more than infraction"
Ken Kosky's "It's the Law" column in the NWI Times this week looks at school zone speeding and other school laws.
This topic "rang a bell" with me, so I looked back in the ILB archives and, sure enough, the very first of Kosby's excellent columns, published Sept. 1, 2008, dealt with disregarding school bus stop arms.
Today's article talks about school bus arms and other school zone violations in more detail and also touches on firearms and schools:
Area police departments are alerting the public that this is the time of the year when they begin cracking down on people who drive too fast in school zones and who disregard school bus stop arms or crossing guards.Valparaiso police Sgt. Michael Grennes said most people understand they can be ticketed for speeding in a school zone, but police say many people don't realize that disregarding a school bus stop arm is a misdemeanor, not merely an infraction. In addition, police don't have to witness the offense to charge the offender.
"The bus driver can get the license plate number, vehicle and driver description ... and we can follow up on it," Grennes said.
Portage police Sgt. Keith Hughes said motorists must stop for a school bus stop arm whether they are going the same direction as the bus or the opposite direction. They must stop even if on two-lane roads with a turn lane in the middle or undivided four-lane roads.
Grennes said people think that if they are a few lanes removed from the bus, and if students aren't walking across all the lanes, they don't have to stop. But Indiana law requires motorists to stop because there is always the chance that a child will dart across the road.
Grennes said police also want to highlight two other laws pertaining to school -- bringing weapons onto school property. It is a felony to possess a firearm on school property or a school bus. It is a misdemeanor to possess a knife at school or on a bus. However, knives may be used if authorized by the school and may be kept in secured vehicles. And people who may legally possess a firearm may have it in their vehicle if transporting another person to or from a school or a school function.
Posted by Marcia Oddi on August 17, 2009 08:31 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 8/17/09):
- None currently scheduled.
Next week's oral arguments before the Supreme Court (week of 8/24/09):
- None currently scheduled.
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 8/17/09):
Wednesday, August 19th
- 2:00 PM - City of Indianapolis, et al vs. Christine Armour, et al - The City of Indianapolis appeals from the trial court's grant of summary judgment in favor of Christine Armour, et al. ("the Plaintiffs"), on the Plaintiffs' complaint seeking refunds for Barrett Law assessments the City made in the course of a sewer project. The City contends that it had a rational basis to support Resolution 101, which forgave Barrett Law assessment balances existing as of November 1, 2005, but did not refund assessments paid in full prior to that date. Thus, the City maintains that the Plaintiffs cannot prevail on their complaint. The Plaintiffs respond that the City did not have a rational basis to support the resolution, which violated both the Federal and State constitutions. The Scheduled Panel Members are: Judges Najam, Kirsch and Barnes. [Where: Indiana Court of Appeals Courtroom - WEBCAST]
Next week's oral arguments before the Court of Appeals (week of 8/24/09):
- None currently scheduled.
The past COA webcasts are accessible here.
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 August 17, 2009 08:24 AM
Posted to Upcoming Oral Arguments
Sunday, August 16, 2009
Ind. Courts - More on "ACLU Lawsuit claims Indiana law examiners violate the ADA "
Updating this ILB entry from July 9th, Magistrate Judge Tim A. Baker issued an 8-page order August 8th on Plaintiff's "Motion to Proceed by Anonymous Name and Motion to Seal Affidavit Containing Actual Name." Access it here: JANE DOE, on her own behalf and on behalf of a class of those similarly situated v. THE INDIVIDUAL MEMBERS OF THE INDIANA STATE BOARD OF LAW EXAMINERS, in their official capacities. The Order begins:
Plaintiff is an attorney admitted to practice law in Illinois who wants to sit for the Indiana bar exam. Plaintiff claims that the Indiana State Board of Law Examiners (the “Board”) is violating the Americans with Disabilities Act by subjecting bar applicants with psychological disorders “to elevated questioning and requirements” about their mental health history. Plaintiff has filed a motion to proceed by anonymous name and to seal an affidavit containing her actual name because she fears that she will suffer injury and become stigmatized if her mental health history becomes publicized. For the reasons below, Plaintiff’s motion is denied.
Posted by Marcia Oddi on August 16, 2009 08:07 PM
Posted to Ind Fed D.Ct. Decisions
Courts - Visteon judge to rule on cutting retiree benefits: Indiana retirees impacted
Randall Chase of the AP had this story Friday. Some quotes:
WILMINGTON, Del. — A Delaware bankruptcy judge is weighing whether auto parts supplier Visteon Corp. can terminate retiree health care and life insurance benefits for thousands of current and former workers.After a two-day hearing, Judge Christopher Sontchi told attorneys Friday he would consider the evidence and arguments. He gave no indication when he would rule.
"I feel that the record is sufficiently complex and the law is sufficiently complex to require the court to thoroughly review the record," said Sontchi, whose ruling could affect some 6,600 retirees and their families, and about 1,000 future retirees. * * *
About one-third of the retirees are not yet eligible for Medicare, federal health insurance. * * *
"It is, for some, a death sentence," said Susan Jennik, an attorney representing workers who retired from two Visteon plants in Indiana. "Retirees who are receiving cancer treatment or who have heart disease ... are now faced with the termination of lifesaving medical treatment which they will not be able to afford." * * *
The benefits termination would affect retirees from Visteon headquarters in Michigan, the Pennsylvania and Indiana plants, and another in Puerto Rico. The Indiana and Puerto Rico plants have closed; the one in Pennsylvania will shut down by the end of the year.
"I'm disappointed in the system," said Carolyn Spurlock, 59, who worked for 37 years at a Visteon plant in Connersville, Ind. "We don't know what's going to happen from day to day now."
Robert Stark, an attorney representing Visteon's creditors committee, said retirees are due "ample sympathy," but that, unlike the company's creditors, they do not have legally sustainable claims. "This is a legal question pure and simple," he said.
Posted by Marcia Oddi on August 16, 2009 11:57 AM
Posted to Courts in general
Environment - City of Richmond may soon own contaminated Dana site
Recall these ILB entries from this spring about the Dana site in Angola and how the city was on the hook for millions? A quote from a Fort Wayne Journal Gazette editorial from March 21st:
When Dana left the site at 203 Weatherhead St. in Angola, the company also left behind trichloroethene pollution. The chlorinated solvent is now contaminating ground wells that provide Angola residents with drinking water. IDEM estimates the cost for cleaning up the pollution is at least $5.5 million.Now read this story dated August 15th from the Richmond Palladium-Item. Some quotes:Previously the city, county and Univertical Corp., a company that had nothing to do with causing the pollution but is now operating at the site, each agreed to contribute $1 million toward the cleanup. That leaves the city short $2.5 million.
At the meeting, state officials told Angola Mayor Dick Hickman not to expect the state to pay the difference, though it will chip in a small amount: Money from the 300,000 Dana shares the state expects to receive as part of the bankruptcy settlement will go toward the cleanup. And Angola can get a 20-year no-interest loan from the Indiana Economic Development Corp. * * * State environmental management officials suggested Angola look at raising water or sewer rates to repay the loan from the state.
The city of Richmond may own the former Dana Corporation property on Williamsburg Pike by this fall as state and local officials try to hammer out a plan to clean it up and return it to the tax rolls.The Indiana Department of Environmental Management this year asked city officials to acquire the property from Wayne County so it could work with them to begin testing the site for contamination.
Once the contamination is identified, IDEM would pay for the cleanup, state officials said. Once it's clean, the city could sell it and split any profits with the county to cover unpaid taxes.
"The objective is to have the city act as a stable property owner so we can work to get it cleaned up," said IDEM spokeswoman Amy Hartsock. "After the cleanup is achieved, the goal would be for the property's redevelopment and reuse." * * *
Hartsock said IDEM has money set aside from the Dana bankruptcy for testing and cleanup. She said IDEM officials would focus mainly on cleaning up the land around the former Dana foundry.
"I believe what we're looking at is mostly soil contamination and some ground water contamination. But more study would be needed," she said.
She said the cost of the cleanup would not be known until the testing is complete.
The property is two parcels totaling 44 acres at 2153 and 2175 Williamsburg Pike. The county acquired it when Dana filed for bankruptcy protection and stopped paying property taxes. There are also a number of delinquent weed liens on the property.
Posted by Marcia Oddi on August 16, 2009 11:14 AM
Posted to Environment | Indiana Government
Ind. Decisions - "Oak Park annexation protestors say attorneys failed their case"
David A. Mann reports in the Jeffersonville News & Tribune:
The plaintiffs in a remonstrance case against Jeffersonville’s Oak Park annexation charge that their attorneys were negligent when they failed to file needed paperwork on time.For background, see this ILB entry from August 16, 2008.Bruce Herdt, the lead plaintiff, has asked the Indiana Supreme Court Disciplinary Commission to investigate the matter. New Albany-based attorneys Derrick Wilson and Debra Andry are named in the complaint.
The Jeffersonville City Council passed an ordinance annexing six areas, including Oak Park, in 2007. State law gives those wishing to protest an annexation 90 days to collect the signatures of 65 percent of those within an annexed area in order to remonstrate. In this case, 90 days from the date of the annexation was the Monday after Thanksgiving 2007.
In his complaint, Herdt says that organizers knew they would need every available day in order to collect the needed signatures.
“We knew and repeatedly informed Mr. Wilson that filing before this date would cut us short by at least four days [because of the holiday] for getting signatures,” Herdt said in the complaint. “Mr. Wilson and Ms. Andry were both very aware of this condition.”
Once the signatures were collected, remonstrance organizers hand-carried them to Wilson’s office at about 11 a.m. that Monday.
He found out the next day that the remonstrance was filed without the signatures attached. Two days later, Wilson filed the signatures as an amendment to the annexation.
Wilson argued those signatures should be valid because the remonstrance was filed on time and the late-submitted signatures should be counted as part of that original filing.
However, Clark County Circuit Court and the Indiana Court of Appeals dismissed the remonstrance after a motion from the city argued that not all the materials were filed on time. The Indiana Supreme Court was petitioned, but would not hear the case. * * *
Wilson explained that he could not comment on the complaint, noting he was bound by attorney-client confidentiality privilege.
Andry could not be reached for comment.
The complaint states that Wilson told organizers that the filing wasn’t made because his office didn’t have time to make copies.
Donald R. Lundberg, Indiana Supreme Court Disciplinary Commission executive secretary, said complaints go through several screening processes before any action would be taken.
If a complaint is believed to be legitimate, a nine-member board will hear from each side. After that — if a complaint is still seen as viable — the commission will file a formal proceeding with the Indiana Supreme Court, he said.
That court ultimately makes the decision about whether and what kind of disciplinary action to take. Complaints made to the commission are confidential. Lundberg could not confirm or deny whether it had been received and would not speculate on punishments.
Posted by Marcia Oddi on August 16, 2009 10:01 AM
Posted to Indiana Decisions
Ind. Decisions - Still more on "Apparently there are all sorts of surprises in the special session budget"
Updating this ILB entry from Aug. 13th, the Fort Wayne Journal Gazette today has a feature on Janes Payne. Some quotes:
James Payne, a former juvenile court judge in Marion County, has been director of the Indiana Department of Child Services since 2005. He spoke with editorial writer Karen Francisco about the department’s efforts in its first years as a state agency. * * *
3 Judge Peter Nemeth from St. Joseph County recently complained about a provision in the budget bill that gives you sole authority to approve out-of-state placements. In your former role as a judge, would you have supported such a change?When we talk about out of state, there are actually two counties that account for over 85 percent of the out-of-state placements. … Many of our out-of-state placements are not across the border, as many thought they would be. Many of them are placements in Minnesota, in Iowa, in Nevada, Utah and Arizona, where it virtually precludes communication and working with the family.
On balance, this was the right thing to do. I understand while some would criticize it, I would hope that if I were still a judge I would recognize that there are some things that I may be inclined to do that others have an opinion of and – can we talk about these – and try to resolve them so that only those kids who need to be a great distance away and only these kids who have special treatment needs that another state or another facility outside of our state can provide that we don’t.
Posted by Marcia Oddi on August 16, 2009 09:51 AM
Posted to Indiana Courts | Indiana Decisions | Indiana Government
Saturday, August 15, 2009
Ind. Decisions - "7th Circuit Cuts Off Challenge to Chicago Cell Phone Ban"
The 7th Circuit opinion this week in the case of Gayle Schor et al v. City of Chicago, flagged in this ILB entry from August 13th (3rd case), is the subject of a story today by Lynne Marek of The National Law Journal:
Chicago cell phone users fighting to fend off a city ordinance that bars them from driving and chatting on their phone without a hands-free device have lost another round.The 7th U.S. Circuit Court of Appeals in a decision Thursday agreed with the U.S. District Court for the Northern District of Illinois that the class action mounting a constitutional challenge to the 2005 city law "has no legs." And by the way, that law also precludes texting and surfing the Internet while driving, the court noted.
"The district court was right: this case has no legs whatever," a unanimous decision written by Judge Diane Wood said.
The District Court last year ruled that the plaintiffs had no real constitutional argument, despite claims under the Fourth and 14th amendments, to justify their 2007 lawsuit and that a proposed attempt to modify the suit would be frivolous. The plaintiffs, all of whom had been ticketed for violating the law, appealed the decision late last year. * * *
The plaintiffs attorney, Blake Horwitz of Chicago-based Horwitz, Richardson & Baker, said his clients will not appeal the decision. Still, he called it an important battle to fight, partly because Chicago's ordinance is different from those of surrounding municipalities and because there was little notice to drivers of the law.
"We feel very strongly that people have a right to know in advance that they're committing some sort of infraction," Horwitz said.
Posted by Marcia Oddi on August 15, 2009 11:45 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Courts - Continuing on with: Managing the electronic communication revolution in the Indiana courtroom
This will be the 6th ILB entry under the heading "Managing the electronic communication revolution in the Indiana courtroom" The first such entry, dated July 25th, commenced:
It began with stories of cell phones banned in the Allen County Courthouse. That was in November of 2006. Several other counties followed suit, via their local rules. You may find them in this list of ILB entries referencing "cell phones."This week, Anita Ramasastry, a FindLaw columnist and Professor of Law at the University of Washington School of Law, had this column headed "Why Courts Need to Ban Jurors' Electronic Communications Devices." Some quotes:
On September 1, a new rule will go into effect for Michigan state courts: Trial courts must instruct jurors that they cannot use iPhones, cellphones, or other electronic communications devices as they deliberate about their verdict. Moreover, Michigan is only one of many jurisdictions grappling with this issue. And in some instances, jurors' use of electronic applications such as Twitter has even led to mistrial allegations. * * *Right back to November, 2006, when Allen County banned cell phones in the county courthouse.In this column, I will review the current Michigan Supreme Court rule banning jurors' use of electronic devices. I will also argue that it may be wise for courts to go further – as some already have done – by simply asking jurors to check such devices at the courthouse door. * * *
Currently, there is no consensus in the U.S. on how to deal with the problem of jurors' use of electronic devices, according to the National Center for State Courts. Some courts ban electronic devices from the courthouse – asking jurors to leave them at the door. Some judges let jurors keep cellphones but tell them to keep them turned off. Others allow cellphones to be used during breaks. Some courts, like Michigan's, tell jurors not to use their devices in the courtroom or during deliberations.
According to the National Center for State Courts, a number of states have grappled with the problem. The Center surveyed court administrators to find out what courts are doing to stave off the use of electronic communications devices during trials.
To get a sense of the diversity in policies, consider these examples: New Jersey allows jurors to bring cell phones to court, but they must be turned off during trial. In Malheur County, Oregon, and federal court in the Western District of Louisiana, jurors are not allowed to bring cell phones to court at all. In Alaska's first judicial district, a court bailiff confiscates cell phones during jury deliberations. In Minnesota, one county's jury summons makes specific reference to a ban on cell phones, pagers, and PDAs. It explains that the policy "was enacted in the Second Judicial District (Ramsey County) in the state of Minnesota after two mistrials were declared when jurors used cell phones during deliberation against the Court's order," and mentions, "Phones are available in the Jury Assembly Room."
In Multnomah County, Oregon, the court provides a jury instruction that makes explicit reference to certain electronic devices and activities. The court tells jurors: "Do not discuss this case during the trial with anyone, including any of the attorneys, parties, witnesses, your friends, or members of your family. 'No discussion' also means no emailing, text messaging, tweeting, blogging or any other form of communication."
The instruction also cautions jurors about conducting Internet searches and does so in a very clear and commonsense manner: "In our daily lives we may be used to looking for information on-line and to 'Google' something as a matter of routine. Also, in a trial it can be very tempting for jurors to do their own research to make sure they are making the correct decision. You must resist that temptation for our system of justice to work as it should."
Currently, too, an Indiana judicial panel is investigating what can be done about the problem. Last week, the Indiana Judicial Conference's jury committee assigned staff to draft a rule setting uniform limits on jurors' use of electronic devices during deliberations. The rule is scheduled to be presented to the Conference in October.
Ultimately, Collecting Cellphones at the Courthouse Door May Be the Best Solution
While Michigan's rule is a good start, it may not be sufficient. More precise instructions that mention (but of course, are not limited to) applications such as Wikipedia, Google, and the like may be helpful in getting jurors' attention when trial judges instruct jurors not to do research at home. The Multnomah County jury instructions do a good job of making clear what type of electronic communications are prohibited and when they are prohibited. And while jurors are in the courthouse, the best solution will likely be to ask them to check their own electronic devices, yet also make telephones available for their use. After all, justice requires us to pay attention in court and not to be thinking about our next text, Tweet or Web search.
Posted by Marcia Oddi on August 15, 2009 11:29 AM
Posted to Indiana Courts
Environment - "NW Indiana counties stop residents' wind tower ventures"
Gitte Laasby of the Gary Post-Tribune has a very long story today on the premise: "County ordinances aren't prepared to deal with wind towers and spires." Some quotes:
Four months ago, Jackson Township retiree Tom Martin put down about $15,000 for two 30-foot wind spires, which he hopes could cut his electricity bills 60 percent. He's still waiting for permission to put them up. The problem? Porter County has not yet finished its ordinance relating to wind generation. * * *Rather than spinning your rotors ....Potential buyers in Lake County are facing similar issues.
That's costing business for George Kontol Jr. He owns DeMotte-based Northwest Geothermal, which sold Martin the wind spires. The aluminum cylinder spires contain no propellers but have a rotor that turns with the wind in any direction and that's an appealing design.
"People want it, but when I tell them there's no permitting right now, it derails it then and there. We don't want to derail anything. We can sell a lot of them, but we're getting a lot of slack from the counties," said Kontol. "Everybody says they want one, but it's counties across the state."
Sales representative Nick Serena of Lowell said he called Lake County twice to find out whether he needed a permit before he put up his wind spire.
"They basically told me there was no building permit for it, because it's only 30 feet tall, under the height variance. I assumed it was OK for me to do," he said.
Serena installed the spire, but after he appeared with it in a newspaper article, he received a letter from Lake County stating the spire is an illegal use because he got no building permit and no variance.
"There isn't a wind ordinance so how can they come back and say I'm not following the rules?" Serena said. "I don't appreciate it because when I called in, they told me it was OK. Now they tell me I have an illegal structure. It's kind of asinine if you ask me."
Lake County has threatened a lawsuit and fines of $10 to $2,500 per day of violation. The county's ordinance doesn't specifically mention wind towers, but Lake County planning and building administrator Steve Nigro said Serena should have obtained a variance to be allowed to use the land in a way that's not listed as allowable.
"We don't allow for use of wind towers and cell towers," Nigro said. "If a use is not mentioned in a zoning ordinance, the way to do that is to go for a variance of use."
He said a variance would go to the board of zoning appeals, which recommends to the full county council, which can then approve, deny or modify the request.
"I don't know how he's going to correct the fact he put a structure up," Nigro said. "It's just a shame it came to this if the gentleman did ask and got bad information."
Nigro said county officials have discussed creating a wind tower ordinance, but have not put anything into action yet.
Some townships treat wind towers like TV antennas and apply the same rules.
In Porter County, the plan commission has worked on a comprehensive wind ordinance for about seven months. Plan Commission Director Bob Thompson said the commission is finishing an ordinance involving large turbines for a potential wind farm near Kouts. The ordinance for smaller turbines was contracted out to a consulting company.
"We wanted to get through the large ones first, then we wanted to look at the small," Thompson said. "There's interest in the small ones, but we can only do so much at a time. We wanted to make sure we did that one right."
Porter County Commissioner Bob Harper said the consulting company handed in its draft Wednesday. It's likely to appear at the next plan commission meeting in September, but would require public hearings in both the plan commission and the full commission.
"It takes a while for these things. It's not like it's some unusual thing. You just don't have someone come up with an idea, next week you have an ordinance. It doesn't work that way," he said. "What takes time is, the devil's always in the detail on these things ... How high can it be? How near neighbors can it be? All these kinds of issues. It's never just sitting down and slapping something together. It takes time to devise a good ordinance that applies to your county."
Martin said he believes noise and height concerns are minor issues because the spires are no louder than a whisper and no taller than a flag pole. He said he understands that the ordinance takes time, but would like to move on energy independence as soon as possible.
"It seems like the wheels of getting something accomplished are kind of slow at times. I understand they don't want to pass something quickly and do something wrong," he said. "I'm not a big ecological person. I don't worry a lot about the environmental things, but I do have a concern. I think it's just good common sense... After a while you just feel like you're spinning your tires."
Posted by Marcia Oddi on August 15, 2009 10:53 AM
Posted to Environment
Friday, August 14, 2009
Environment - More on: "St. Joseph County to consider windmills: Bill would regulate turbine installation in St. Joseph County"
Updating this ILB entry from Tuesday, Troy Kehoe of WSBT South Bend reports this afternoon:
Energy generating wind turbines put up in St. Joseph County will soon have to conform to a new set of rules, aimed at keeping homeowners and their neighbors safe. The St. Joseph County Council passed the new regulations unanimously Tuesday.County leaders said they want the push toward "green" energy to continue, but not unchecked.
More than three dozen wind turbines have already gone up at homes and businesses across the county in the last few years.
Many have been put up by Glen Smith.
His South Bend based company Wind-Wire has installed, or is in the process of installing, at least 78 turbines in the last 18 months alone.
At a cost of between $15,000 and $17,000 each, they're not cheap. But, making your own electricity, Smith says, is worth its weight in gold.
"This is self-sufficiency," he said, standing outside a grouping of three wind turbines he installed on a 68-acre parcel of property owned by Larry Putt near Lakeville. The third just went up last week, and Putt already has plans for a fourth.
"Plug them right into the panel, no inverters, no converters, and they produce AC," Smith said.
That's alternating current — the juice that powers your hair dryer, air conditioner and TV. Getting it from mother nature is suddenly a popular option.
"They're becoming very common," Smith said. "We're building them from Fort Wayne to Detroit, Chicago, Indianapolis, all the way up to Traverse City. It's just a matter of time before one goes up near you."
Until Tuesday, that progress was marching forward unheeded, and unregulated.
But, appearing before the County Council Tuesday night, Smith's words weren't what some expected.
"You need this ordinance," he told the Council. "This is following in line with what every county is doing, for the most part. This gets you out of your garage built wind turbines. You don't want a cheap wind turbine, or one that can collapse, or one that doesn't stand up to wind loadings."
County Councilmen agreed, saying they encourage the "winds of change, " just as long as they don't blow too loudly.
Among the long list of new requirements:
-That noise levels remain under 55 decibels — no louder than the average air conditioner, which hums at about 60 decibels
-That height limits stay under 80 feet in agriculturally zoned areas and 60 feet in residential areas
-That only single-pole designs be used
-That only three turbines will be allowed per 10 acre lot
-That all turbines and poles be neutrally colored in either white, black or gray
-That the turbines be tested to withstand winds of at least 100 mphIt all adds up, designers of the regulations say, to one thing.
"This will provide some protection to adjacent property owners when these things go up. Obviously, nothing requires a homeowner to put a wind turbine up. What it does is give you some level of protection and input in certain circumstances if your neighbor wants to put one up," said Area Plan Commission Assistant Director Larry Magliozzi.
But others say the regulations don't go far enough. They worry the windmills will still be too noisy, too visible, and could lower property values."
"They are almost always on a large pole, about 60 feet in the air," said Tom Gruber, Government Liaison Officer for the Home Builder's Association of St. Joseph Valley. "And it conjured up images of the 1950s and TV towers. Every home had this massive TV tower which was fine in those days, but I think most people would agree that's not aesthetically pleasing."
It's one reason why the HBA pushed for the minimum lot size to be increased from its original requirement of 15,000 square feet to one acre.
But, some at Tuesday's meeting said that's not enough.
"Wind energy is fine out in big places where you have five or six acres, stuff like that. But, not where you're annoying your neighbor or endangering his property," said Clay Township resident Thomas Burnett.
Burnett had some suggestions on how to improve the ordinance, and he wasn't bashful about selling them to the Council.
"There's no maintenance standards in here," he said. "There's no setback standards. What about how the turbines kill birds? The noise level should be at the property line, not 10 feet past it. The setback should be at least the height of the tower, plus some extra. That way, if the wind turbine falls, it won't be on someone's home."
"If properly installed, which the building department will guarantee through inspections and proper permits, through inspections and the proper permits, these things should not fail," said Magliozzi.
But, Burnett isn't convinced.
"If they make some changes to this, I believe it would provide a good solution," Burnett said. "But, this isn't enough."
They are arguments that will likely continue, even as the new rules take effect.
All of the new regulations only apply to those in unincorporated areas of the county. Homeowners in South Bend and Mishawaka may require additional building permits.
The county's new regulations take effect on September 11.
Posted by Marcia Oddi on August 14, 2009 04:18 PM
Posted to Environment
Ind. Gov't. - Even more on: Governor Daniels eases, somewhat, new BMV license ID requirements [Updated]
Updating this ILB entry from yesterday, that concluded:
Okay, this is confusing. If you don't provide the additional identification materials when you renew, you will get an Indiana driver's license that has stamped on it "not for federal identification" or "not federally compliant," even though: (1) the feds aren't requiring such identification until 2016, and (2) may not even then because the feds may scale back the Real ID Law (as reported in this Aug. 12th ILB entry).The Fort Wayne Journal Gazette has an editorial today titled "Don’t blame the feds." Some quotes:
After an outpouring of complaints, Gov. Mitch Daniels has eased requirements for renewing an Indiana driver’s license after Jan. 1. But state officials are still using misinformation to push Hoosiers to meet unnecessarily stringent requirements.[Updated 8/15/09] Here is a quote from an Evansville Courier & Press editorial yesterday:According to a news release issued by the governor’s office Wednesday, “States are required to begin issuing compliant cards in January 2010, and the federal government has mandated that states complete their compliance by the end of 2016.”
Not so, according to Jim Harper, director of Information Policy Studies for the Washington-based Cato Institute. The federal government doesn’t require the states to do anything under the Real ID act, passed in reaction to the Sept. 11, 2001, terrorist attacks.
“If your governor says that he is ‘required’ to do anything by Real ID, he’s trying to avoid his responsibility to protect the privacy and civil liberties of Indiana residents from federal government incursions,” Harper said in an e-mail. “That’s shameful.” * * *There are no federal mandates because many states have objected to the federal proposals. The Obama administration has offered a less-restrictive proposal with its Pass ID plan, but even that plan – still under debate – is not as restrictive as Indiana’s driver’s license requirements, which require verification of birth certificates with the originating agency.
Andy Miller, commissioner of the Indiana Bureau of Motor Vehicles, flew around the state last month to unveil Indiana’s SecureID initiative, in which all driver’s licenses will be issued from a centralized office after applicants present a minimum of four pieces of identification to prove identity, Social Security number, Indiana residency and lawful U.S. status.
Miller cited concerns for identity theft and security threats. The new requirements drew immediate fire from advocacy groups such as AARP Indiana and the Indiana League of Women Voters, which protested because of the burden the ID requirements placed on older Hoosiers and women, who would have to produce additional documentation to verify name changes. Democratic Party officials also complained, noting that the requirements were another stumbling block to voting in a state that already has the most restrictive voter ID laws in the nation.
In response, Daniels announced Wednesday that two types of ID will be available for Hoosiers renewing licenses or ID cards – one that is “federally compliant” and one that is not. The former must meet the previously announced SecureID requirements; the latter will require applicants only to show their current ID card or driver’s license.
Those who request the non-compliant card must sign an affidavit noting that they “understand that the card may limit their ability to board airplanes and enter federal buildings at some point in the future.” The affidavit requirement will undoubtedly frighten many Hoosiers into taking unnecessary steps to obtain a SecureID. New residents will have no choice but to do so.
In the end, the governor seems to have recognized that the new requirements threatened license branch improvements. The tough ID requirements are almost guaranteed to create confusion and inconvenience when they go into effect in January.
“Our BMV is now nationally recognized for its short visit times and friendly customer service, and we intend to keep it that way,” Daniels said.
Improved customer service is something the governor can claim with pride. But blaming the federal government for non-existent requirements is disingenuous. If the governor wants Hoosiers to take extra steps to prove their identity, he should say so himself.
This week, Daniels offered some changes he believes will ease the impact of the rules on at least some Hoosiers.Did someone say this is confusing?We're not so sure about that.
That's because the state announced Wednesday that there will be two licenses depending on what type of license the applicant wants to have in his or her wallet.
First, new applicants securing an Indiana license for the first time will still have to provide the requisite multiple forms of documentation.
Second, individuals who fly or enter certain federal buildings will want to provide the multiple IDs. Those persons will need a driver's license that meets certain federal criteria by 2016. They will have the option of doing that any time before 2016, and not necessarily when their license comes up for renewal during that span of years.
Third, if you are not planning to fly, nor enter certain federal buildings — which, we presume, will be listed later — then, for you, the new rules will be optional. You can provide the multiple documents or you can renew your license without the added documentation. The renewed license will not be federally compliant, but it will meet the requirements for licensed driving.
Posted by Marcia Oddi on August 14, 2009 02:52 PM
Posted to Indiana Government
Ind. Decisions - Two Indiana opinions today from the 7th Circuit
In Bentz v. City of Kendallvile (ND Ind., Judge Lee), a 15-page opinion, Judge Kanne writes:
On May 3, 2006, officers of the Kendallville Police Department entered the home of Dr. Bernard Leonelli without a warrant, arrested him, and searched his home for potential domestic violence victims. Leonelli brought suit against the City of Kendallville and individual police officers alleging various Indiana tort claims and violations of the Fourth and Fourteenth Amendments under 42 U.S.C. § 1983. The district court granted summary judgment to the defendants. While this appeal was pending, Leonelli passed away from causes unrelated to the lawsuit, and Susan Bentz became his personal representative. The city moved to dismiss the appeal, claiming that none of Leonelli’s claims survived his death. Bentz, meanwhile, moved that we certify the question of survival to the Indiana Supreme Court. Because we find that Indiana law establishes that Leonelli’s claims do not survive, we grant the city’s motion to dismiss the appeal and deny Bentz’s motion to certify questions of state law. * * *Daugherty v. Wabash Center, Inc. (ND Ind., Judge Sharp), is a 10-page Per Curiam opinion:Nothing in our opinion requires that we resolve a question of state law on which there is no clear controlling Indiana precedent. For that reason, Bentz’s motion to certify questions of law to the Indiana Supreme Court is DENIED.
Leonelli’s federal claim for unreasonable seizure would be treated under Indiana law as a false imprisonment claim; his unlawful entry Fourth Amendment claim isanalogous to the Indiana tort of invasion of privacy. Because neither tort survives under Indiana law, the appellees’ motion to dismiss the appeal is GRANTED.
Michael Daugherty sued Wabash Center, Inc., and its president, Jeffrey Darling, claiming that he was fired in violation of the Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654. The district court granted the defendants’ motion for summary judgment, and Daugherty appeals. Because Daugherty did not show that there was a genuine issue of material fact concerning Wabash’s reason for firing him, we affirm.
Posted by Marcia Oddi on August 14, 2009 01:27 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 2 today (and 15 NFP)
For publication opinions today (2):
In Tanika Walker v. Samuel Nelson, III, a 15-page opinion, Judge Brown concludes:
For the foregoing reasons, we affirm the trial court's grant of Father's petition to modify custody of S.N., reverse the trial court's restriction of Mother's parenting time, and remand this case to the trial court to either enter an order containing sufficient findings to support a visitation restriction or enter an order that does not contain a visitation restriction.MAY, J., concurs.
CRONE, J., concurs in part and dissents in part with separate opinion. [that concludes] To equate reasonable parenting time with the full panoply of visitation rights pursuant to the Parenting Time Guidelines and to allow a deviation therefrom only in situations where there is child endangerment would severely limit a trial court's ability to fashion a visitation schedule that best suits the situation of the parents involved. Such a result would be ill advised.Here, the trial court granted Mother “parenting time pursuant to the Indiana Parenting Time Guidelines with the exception that [Mother] shall have only one weekend of parenting time per month.” Because the trial court granted Mother parenting time, the court was not required to enter findings pursuant to Indiana Code Section 31-14-14-1, and thus Mother may not challenge its failure to enter such findings. Mother may challenge only whether her parenting time is reasonable. Based on the record before us, including evidence regarding the significant geographical distance between Mother and Father, I conclude that it is. Therefore, I respectfully dissent as to issue II and would affirm the trial court in all respects.
T-3 Martinsville, LLC and MS Martinsville, LLC v. US Holding, LLC Hoosier Enterprises, IX, Inc. and John W. Bartle - "T-3 Martinsville, LLC, and MS Martinsville, LLC (“Landlords”), bring this interlocutory appeal of the rulings against them in the trial court's “Ruling on Motions for Summary Judgment.” US Holding, LLC (“USH”), John W. Bartle, and Hoosier Enterprises IX, Inc. (“Hoosier”) (sometimes collectively referred to as “Appellees”), cross-appeal the rulings against them in the aforementioned order."
[See at p. 3, very lengthy footnote 3, re failures to conform brief to Rule 46 requirements.]
NFP civil opinions today (6):
L.A.K.-C. v. K.K. (NFP) - ILB comment: This is the third opinion in a divorce case the ILB has noticed recently where the parties are not identified by name. All three divorce cases have included custody issues. I've learned informally that there is a new courtwide policy that essentially vests discretion in the writing judge. I have heard nothing official, so don't know the parameters of the discretion, whether it is just divorce cases with custody issues, what criteria apply, etc.. (In this case, the parties' names are available via the docket.)
Darren Crouser and Angela Britton v. Town of Zionsville Plan Commission and Phil Cramer (NFP) - "Appellants-Petitioners Darren Crouser and Angela Britton appeal the trial court’s order affirming the Town of Zionsville Plan Commission’s (“ZPC”) approval of Phil Cramer’s minor plat submission. We affirm."
Term. of Parent-Child Rel. of T.Y.; T.M. v. IDCS (NFP)
K.H., Alleged to be CHINS; Indiana Department of Child Services v. T.H. & J.H. (NFP)
James Bedree v. Leonard Darrling (NFP)
Quan Ning Huang and Li Song v. Tanas B. Donev (NFP) - "In light of Huang and Song’s failure to appear and present any evidence on their behalf, we decline to set aside the default judgment entered against them.
"Additionally, as we have noted many times before, litigants who choose to proceed pro se will be held to the same rules of procedure as trained legal counsel and must be prepared to accept the consequences of their action. Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003). Therefore, “[p]arties would be well advised to seek the advice of trained counsel before wading into the complexities of civil litigation.” Comer-Marquardt v. A-1 Glassworks, LLC, 806 N.E.2d 883, 887 (Ind. Ct. App. 2004)."
NFP criminal opinions today (9):
Matthew Helper v. State of Indiana (NFP)
Maurice Dew v. State of Indiana (NFP)
Virgil Hall, III v. State of Indiana (NFP)
Kevin Chrisman v. State of Indiana (NFP)
Darryl York v. State of Indiana (NFP)
Tony L. Taylor v. State of Indiana (NFP)
Curtis F. Sample, Jr. v. State of Indiana (NFP)
Edward D. Roberts v. State of Indiana (NFP)
P.T. v. State of Indiana (NFP)
Posted by Marcia Oddi on August 14, 2009 11:54 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - One case granted transfer August 10th
The Clerk's transfer list should be available sometime today or perhaps Monday. There was no transfer list for the week ending Aug. 7th.
Meanwhile, the ILB received notice today that transfer was granted August 10th in the following case:
- Anthony Malenchik v. State -- 79A02-0902-CR-133. This is a NFP opinion issued June 5th.
Posted by Marcia Oddi on August 14, 2009 11:33 AM
Posted to Indiana Transfer Lists
Courts - "Federal Judges’ Dissents for Death Row Inmates Are Rising"
So reports NY Times reporter John Schwartz in a long story that begins:
It took just 80 words for a federal appeals court to deny Kevin Cooper’s most recent plea to avoid execution. But attached to that order was a forceful 101-page dissent by a judge, all but pleading to spare Mr. Cooper’s life.“The State of California may be about to execute an innocent man,” it began.
The judge who wrote the dissent, William A. Fletcher of the United States Court of Appeals for the Ninth Circuit, in San Francisco, argued that the police and prosecutors had withheld and tampered with evidence in the case for decades; Judge Fletcher even accused the district court of having sabotaged the case.
Compared with the dry, mannerly prose found in many opinions, Judge Fletcher’s passion in Cooper v. Brown is startling. But these kinds of fervent, lonely dissents, urging that a prisoner’s life be spared, have noticeably increased in the last decade, compared with previous years, according to a review of death penalty opinions by The New York Times, as confirmed by experts in the field.
In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.
Posted by Marcia Oddi on August 14, 2009 10:43 AM
Posted to Courts in general
Ind. Gov't. - Indiana Gaming Commission investigator arrested on theft, forgery and other charges
A brief item in the Indianapolis Star:
Vevay -- Indiana State Police have arrested an Indiana Gaming Commission investigator on theft, forgery and other charges; police say he stole counterfeit bills from a casino's evidence locker in Switzerland County.Troy Knorr, 46, was arrested Tuesday at his home in Columbus and charged with forgery, corrupt business influence, theft and official misconduct, State Police spokesman Sgt. Noel Houze said.
Knorr, a retired Indiana State Police officer, appeared in Switzerland Superior Court and was freed on bond, Houze said.
Police say Knorr used his authority as a Gaming Commission investigator to steal counterfeit $20 bills from evidence storage at the Belterra Casino.
Posted by Marcia Oddi on August 14, 2009 10:40 AM
Posted to Indiana Government
Ind. Courts - "Juvenile racial disparities subject of conference"
Andy Grimm of the Gary Post-Tribune reports today:
Black youths in Lake County are twice as likely to be arrested than whites -- a rate that actually trails most counties in the state. Minorities also are more likely to be expelled from school, held in jail or placed in foster care, but local officials are looking to erase those imbalances.More on the upcoming conference here.A delegation of judges, attorneys, police and educators will meet in Indianapolis on Aug. 26 for a summit on racial disparities in the juvenile justice system, hosted by the state bar association.
The Maryland-based Annie E. Casey Foundation also will fund additional research in Northwest Indiana to be used to keep teens out of jail,
"A certain segment of the population is not getting the services it needs from the system," said Lake County Superior Court Judge Lorenzo Arredondo on Thursday.
Arredondo and Juvenile Court Judge Mary Beth Bonaventura are helping organize the meeting, which hopes to address disturbing gaps between minorities and white youths in Indiana schools and juvenile courts.
In Lake County, one of seven counties surveyed in 2005 for the state report, blacks are arrested at twice the rate of youths of other groups -- a figure that leads the survey. Black youths are arrested four times more often than other groups in Tippecanoe County and three times more often in Marion County.
But that relatively good news shouldn't satisfy local officials, said Bonaventura.
"The whole purpose of all this is we can do better," Bonaventura said.
The Aug. 26 summit will include presentations by juvenile authorities acknowledged as leaders in their fields, including Georgia juvenile court judge Steven Teske and New Mexico mental health expert Nicol Moreland-Torres.
Legislators created the state Commission on Disproportionality in Youth Services in 2007, after Indiana ranked near the bottom among all states in a variety of criteria dealing with troubled minority youths. The Commission will create a series of steps for improving arrest rates and outcomes for children who enter the juvenile justice system, JauNae Hanger of the Indiana Bar Association said.
Bonaventura foresees a local commission made up of law enforcement officers, school officials, legislators and attorneys who would try to implement changes in Northwest Indiana.
Posted by Marcia Oddi on August 14, 2009 10:35 AM
Posted to Indiana Courts
Thursday, August 13, 2009
Environment - "State recycling panel shocked by $11M transfer" [Updated]
This brief AP story, with no identifications, was posted on the Indianapolis Star website this afternoon:
Members of a state panel that oversees funding used to attract recycling companies to Indiana say they're shocked that budget officials recently shifted $11 million out of that recycling fund to buoy the state's general fund.Who is on the Board? Here is the list.One member of the Recycling Market and Development Board says the panel was “blind-sided” by the transfer, which occurred June 30 and left about $5.4 million in the fund.
Panel members didn't learn of the transfer until Thursday, 44 days after the money was moved to help alleviate Indiana's revenue shortfall.
They grilled a state official about why the board wasn't consulted about the transfer.
The money was moved eight months after the state's environmental agency froze the money in the grant and loan program, citing the lingering recession.
Also of interest is this page for the Recycling Promotion and Assistance Fund (RPAF). The page points out that grants and loans from the Fund have been curtailed, but says nothing about the bulk money in the dedicated fund itself having been withdrawn and put to other uses by the budget agency:
This fund provides loans and grants to promote and assist recycling throughout Indiana by focusing on economic development efforts. It is administered by the Indiana Department of Environmental Management (IDEM) and operates under the auspices of the Recycling and Energy Development Board as established by IC 4-23-5.5.[Updated 8/14/09] Here is the expanded AP story by Rick Callahan. Some quotes:
Members of a state panel that oversees funding used to attract recycling companies to Indiana expressed shock Thursday that state budget officials recently shifted $11 million from the recycling fund to the state’s main checking account.State Sen. Jean Breaux, D-Indianapolis, said she and other members of the Recycling Market and Development Board were “blindsided” by the transfer, which occurred June 30.
The panel’s members, who didn’t learn of the transfer until they met Thursday for a regularly scheduled meeting, grilled a state environmental official about why the board wasn’t consulted or told before it happened.
“What’s the point of having this board if we don’t have any input into the outcome of the decisions that affect the very product we’re supposed to be overseeing?” asked Breaux, a nonvoting board member.
The transfer, which left about $5.4 million in the recycling fund, was used to help alleviate the state’s revenue shortfall, said Rick Bossingham, an official with the Indiana Department of Environmental Management.
Bossingham, the assistant commissioner of IDEM’s Office of Pollution Prevention and Technical Assistance, said the state’s Office of Management and Budget made the transfer without consulting IDEM as part of efforts by Gov. Mitch Daniels’ administration to help cover the state’s revenue shortfall. He said the money would not be returned to the fund. * * *
[B]oard chairman Bruce Burrow said he and the other board members were never told the money would be moved.
“Obviously, they have the right to do that, the ability to do that, but the communication factor was lacking and that’s most disconcerting, as is what’s going to happen in the future as the funds continue to grow,” he said.
Burrow asked Bossingham if IDEM could re-examine the possibility of releasing $1.3 million the board awarded in December to three companies, which between them planned to bring 60 new jobs to Indiana.
“That’s what sticks in my craw the most,” Burrow said. “We’re sitting on $5 million and we’ve committed $1.3 million, but we still can’t allocate those funds.”
Bossingham said he would pass on the new request but the fund remains frozen indefinitely.
Jeffrey Miller, a board member and president of the Indiana Recycling Coalition, said the state’s decisions regarding the funds send “a bad signal” to recycling companies that might be interested in locating in Indiana.
Posted by Marcia Oddi on August 13, 2009 05:47 PM
Posted to Environment | Indiana Government
Courts - New bankruptcy numbers out
The release on the U.S. Courts site begins:
In the 12-month period ending June 30, 2009, there were 1,306,315 bankruptcy cases filed, according to statistics released today by the Administrative Office of the U.S. Courts. That is a 35 percent increase compared to filings for the 12-month period ending June 30, 2008, when cases totaled 967,831.See also this entry today from The Blog of Legal Times.
Posted by Marcia Oddi on August 13, 2009 04:24 PM
Posted to Courts in general
Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)
For publication opinions today (1):
In Jeffrey L. Kimbrough v. State of Indiana , a 32-page opinion, CJ Baker writes:
Appellant-defendant Jeffrey L. Kimbrough appeals his conviction for Battery with a Deadly Weapon, a class C felony, claiming that 1) the jury selection process was improper; 2) the trial court erred in admitting certain evidence at trial; 3) the jury was improperly instructed; 4) the State did not adequately rebut his claim of self-defense; 5) the restitution order was excessive; 6) he was improperly ordered to pay fines, court costs, and public defender fees because no indigency hearing was held; and 7) his trial counsel was ineffective.NFP civil opinions today (3):
Although we find no reversible error, we remand this cause with instructions that the trial court clarify its restitution order. * * *In light of our discussion above, we conclude that there was no error in the juror selection process and that the 911 tape was properly admitted into evidence. We further find that the trial court did not err in admitting a police officer's testimony regarding the comments that Peoples made to him about the incident, or in permitting Peoples to testify about the amount of time that he was in pain. The trial court also properly permitted Peoples to testify as to why Curtis entered the room during the fight, and the trial court did not err in instructing the jury as to the definition of “serious bodily injury.” Finally, we conclude that the evidence was sufficient to rebut Kimbrough's self-defense claim
Nightingale Home Healthcare, Inc. v. Suzie Oliva (NFP) - "Nightingale Home Healthcare, Inc. (“Nightingale”) appeals from the trial court’s grant of summary judgment in favor of its former employee, Suzie Oliva. Specifically, Nightingale argues that the trial court erred by refusing to consider its summary judgment materials, and that if the court had done so, it would have found a genuine issue of material fact which precluded summary judgment. Because Nightingale filed its summary judgment materials after the time for a response had expired without previously making a motion to the trial court for a continuance before time expired, the trial court correctly refused to consider the belated materials. Because summary judgment was properly granted, we affirm. * * *
"Specifically, Nightingale argues that it timely filed both its motion for enlargement of time and its summary judgment materials because Oliva’s counsel had agreed to an enlargement of time. In the event we find the documents untimely, Nightingale argues that the trial court had discretion to accept the belated documents. Nightingale also argues that, had the trial court considered its summary judgment materials, it would have determined that there are genuine issues of material fact which preclude summary judgment."
Rolla G. Trent v. Rodney L. Richard (NFP) - "The issue before us is whether there is a genuine issue of material fact regarding Officer Richard's employment status at the time of the accident. This is because if at the time of the accident, Officer Richard was acting within the scope of his employment as a City of Peru police officer, he is immune from personal liability. * * *
"In light of this designated evidence, and more particularly in light of the applicable Indiana case precedent, we hold that the trial court correctly determined that notwithstanding Officer Robert's personal interest and motivation in responding to the emergency dispatch, as a matter of law, Officer Robert was acting within the scope of his employment at the time of the accident. Accordingly, we affirm the trial court's grant of summary judgment."
Darryl Van Swol and Jan Van Swol v. ISG Burns Harbor, LLC and Donald Bowens (NFP) - "Appellants-plaintiffs Darryl and Jan Van Swol appeal the trial court's order dismissing their complaint against appellees-defendants ISG Burns Harbor, LLC (ISG), and Donald Bowens for lack of subject matter jurisdiction. The Van Swols argue, among other things, that the trial court erroneously concluded that Darryl was an employee of ISG, meaning that his claim for injuries sustained on the job must be raised under the Worker's Compensation Act. Finding that Darryl was not an employee of ISG and that the trial court has jurisdiction over the Van Swols' complaint, we reverse and remand for further proceedings on the complaint. * * *
"There are two factors that weigh slightly in favor of a finding of employment—right to discharge and establishment of work boundaries. The remaining factors—mode of payment, provision of tools and equipment, belief of parties, right to control, and length of employment—weigh significantly against a finding of employment. And indeed, when we step back and consider the evidence as a whole, it is apparent that ISG disclaimed all employer-related responsibilities—on paper and in practice—until Darryl filed this lawsuit. Even when Darryl was injured, ISG declined to provide medical treatment, create an incident report, or investigate the accident. Those decisions were not inappropriate if Darryl was an independent contractor, but ISG may not now act as if that it considered Darryl to be an employee and treated him as such.
"Under these circumstances, we can only conclude that the trial court erred by finding that Darryl was an employee of ISG. We hold that the balance of evidence tips against that conclusion and that the trial court does, in fact, have jurisdiction over the Van Swols' claims and should not have dismissed the complaint."
NFP criminal opinions today (2):
Myron Tools v. State of Indiana (NFP)
Edward A. Grady v. State of Indiana (NFP)
Posted by Marcia Oddi on August 13, 2009 11:57 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - 7th Circuit issues one Indiana opinion; several others of interest
In U.S. v. James Daniel (ND Ind., Judge Lozano), a 6-page opinion, Judge Wood writes:
In this appeal, we once again consider issues arising from an August 2006 police operation in Indiana designed to catch predators using internet chat rooms to persuade minors to engage in sexual activity. James Daniel was ensnared in the operation’s net when he struck up a chat with someone calling “herself” Amanda_13. Unbeknownst to him, he was really communicating with a male officer claiming to be a 13-year-old girl. But the government failed to realize the extent of its own sting operation. During Daniel’s trial, the prosecution introduced two chat sequences found on Daniel’s computer that apparently involved minor girls. What the government did not notice until sentencing was that one of those “girls,” daisy13_Indiana, was actually an officer from the same Indiana operation. And that was not all. To our surprise, the government was unaware until this panel told it at oral argument that the other screen name, blonddt, was also an officer from the Indiana operation. Daniel asserts that the government’s failure to disclose the identity behind these two screen names violated Brady v. Maryland, 373 U.S. 83 (1963), and thus entitles him to a new trial. Because the information was not material to Daniel’s trial, we affirm his conviction and sentence.In a case out of Illinois, Pollack and Blue Eco Legal Council v. U.S. DOJ, a 22-page opinion, Judge Manion writes:
The United States government operates a gun range on the shores of Lake Michigan. The plaintiffs brought suit against several governmental agencies, alleging that the discharge of bullets into the lake violates various environmental laws. The district court dismissed the suit for want of jurisdiction after concluding the plaintiffs lacked constitutional standing. The plaintiffs appeal, and we affirm. * * *In another case out of Illinois, Gayle Schor et al v. City of Chicago, a 10-page opinion, Judge Wood writes:To establish standing, the plaintiffs relied on affidavits submitted by Pollack and another Blue Eco member, Darren Miller, who is also a resident of Highland Park. Pollack’s affidavit stated that he enjoyed watching birds in the Great Lakes watershed, visited public parks along the Lake Michigan shoreline, drank water from Lake Michigan at his home in Highland Park, and ate freshwater and ocean fish. Miller’s affidavit was nearly identical to Pollack’s.
The defendants moved for dismissal under Federal Rule of Civil Procedure 12(b)(1), arguing that the court lacked subject-matter jurisdiction because Pollack and Blue Eco did not possess constitutional standing to assert their claims. The district court granted the motion, concluding first that Pollack and Miller’s concern over drinking water did not provide standing because the drinking water in Highland Park was below the environmental limit on lead pollution allowed by the city government, thereby negating any claim of harm by Pollack and Miller. Moreover, the district court held that their concerns over birds, fish, and wildlife were too general and did not allege any particular or specific harm that had been caused by the bullets. The district court concluded that because Pollack and Miller did not possess standing, Blue Eco did not possess standing on their behalf. Accordingly, the district court dismissed the suit for lack of subjectmatter jurisdiction. The plaintiffs appeal. * * *
Because neither Pollack nor Miller has demonstrated that they were concretely affected by the shooting activities they challenge, neither individual has standing to pursue this case. Accordingly, neither Pollack nor Blue Eco has standing. The district court’s dismissal of this suit for lack of subject-matter jurisdiction is AFFIRMED.
Judge Cudahy, concurring, writes beginning at p. 14: This is without question a close case. As the case law laid out by the majority suggests, “injury in fact” can be an elusive phenomenon. Although in the present case an injury is arguably traceable to the deposit of toxic substances in potable water, such phenomena appear and disappear from one case to the next depending on subtle twists in the allegations, turning between the real and the hypothetical. Compare generally Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Scalia, J.), and Summers v. Earth Island Institute, 129 S.Ct. 1142 (2009) (Scalia, J.), with Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000) (Ginsburg, J.). I write separately to make the point that the Supreme Court’s case law on this subject is both unclear in purpose and extraordinarily difficult to reconcile. Close cases like this one ought to make that point clearly. In particular, where a citizen-suit provision potentially sets the bar for proving the merits lower than the bar for proving standing, it is incumbent upon us to carefully examine why the plaintiff before us either has or has not established “injury in fact.” Perhaps more important, this plaintiff’s case has procedural flaws not addressed by the majority.
Gayle Schor, Kristine Mulcahy, and Angela Shue (collectively, the “plaintiffs”) brought this suit in the district court as a class action, challenging the constitutionality of a Chicago municipal ordinance that prohibits the use of wireless telephones without a “hands-free” device while driving a motor vehicle. See MUNICIPAL CODE OF CHICAGO, ILL. § 9-76-230 (the “Ordinance”). The case was nipped in the bud by the district court with a dismissal for failure to state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). The district court also denied the plaintiffs’ request for leave to amend their complaint on the basis that any amendment would be frivolous. See FED. R. CIV. P. 15(a). The district court was right: this case has no legs whatever. We therefore affirm the judgment.
Posted by Marcia Oddi on August 13, 2009 11:29 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Another NFP COA decision reclassified
The case is Josif Obetkovski v. Inland Steel Industries - NFP opinion issued 7/7/09; Appellee's motion for publication filed 7/14/09 but missing certificate of service; defect cured 7/23/09; Appellant's petition for transfer 8/5/09; Ordered published 8/10/09.
From Sr. Judge Hoffman's opinion:
Based upon the foregoing discussion and authorities, we conclude that the Board did not err in finding that Obetkovski failed to give Inland notice of the alleged work-relatedness of his injury and that this failure prejudiced Inland. In addition, there is ample evidence to support the Board’s conclusion that Obetkovski did not suffer a compensable injury in the course and scope of his employment with Inland.
Posted by Marcia Oddi on August 13, 2009 09:34 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - More on "Apparently there are all sorts of surprises in the special session budget"
Picking up on this ILB entry from August 10th, where a Court of Appeals opinion pointed out that during the 2009 Special Session of the Indiana General Assembly, IC 31-40-1-2(f) was amended as follows:
(f) The department is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placementThe Fort Wayne Journal Gazette has an editorial today that provides more information about the import of this change:does not comply with the conditions stated in IC 31-34-20-1(b) or IC 31-37-19-3(b).is not recommended or approved by the director of the department or the director's designee.
DCS has come under fire from a St. Joseph County juvenile court judge for an 11th-hour addition to the state budget that gives [Director James] Payne alone the authority to approve out-of-state placements of children and teenagers. Previously, judges could order placement out of state if they determined that was the most appropriate setting.St. Joseph County Probate Court Judge Peter J. Nemeth's letter was published in the Indianapolis Star on August 3rd. Some quotes:“This effectively blocks the out-of-state placement of children,” wrote Probate Court Judge Peter J. Nemeth in a letter sent to Indiana newspapers. “It is unfortunate that the General Assembly has seen fit to remove this important decision from the hands of judges at the local level and place it in the sole hands of a bureaucrat in the executive branch.”
Judge Charles Pratt of the Allen Superior Court’s Family Relations Division said he and Judge Steven Sims don’t typically make out-of-state placements, instead favoring treatment centers that are close to a young person’s home. But he acknowledged that the issue is one that should have been debated before it was approved.
“It’s further evidence of a trend of reducing judicial discretion,” Pratt said. “The less we’re able to weigh the best options and make a ruling, the less chance that kids are being well-served. That’s disturbing.”
In an interview, Payne defended the change, noting that 85 percent of out-of-state placements were made by judges in two counties. Those counties are Lake and St. Joseph, and while both are border counties, Payne said the placements were not just across state lines but to far-flung states. * * *
Nemeth, however, argues that one of his out-of-state placement orders, at a cost of $170 a day, was opposed by DCS in favor of an in-state placement at $325 a day.
Payne, in fact, admitted that in his 20 years as a juvenile court judge in Marion County, there were occasions when an out-of-state placement was the only option.
Given his years of experience on the court, it’s likely the current DCS director would authorize an out-of-state placement in such a case, but a subsequent director without that background might be driven more by budget concerns. Taking the discretion away from a local judge and placing authority with the DCS director is an issue that should have been allowed time for study and public debate.
It’s inevitable that shifting the total cost of child welfare programs to the state would result in more centralized authority, as it likely will with school general fund expenses. But issues involving children demand close attention. That’s more likely to come from a local juvenile court judge than from the head of a state agency.The General Assembly allowed judicial discretion to be further eroded with the budget provision. It should reconsider the issue in its upcoming session.
As a judge, I am entrusted with ensuring that our citizens receive due process of law, including the opportunity to be heard. Unfortunately, it does not appear that the state's director of Child Services (himself a former juvenile judge) has any concern for the opportunity to be heard as he accomplished a fait accompli (with the acquiescence of the General Assembly) by inserting a last-minute, late-night addition to the budget bill that changes Indiana law so that a juvenile judge cannot do what is in the best interest of a child if that means sending the child to an out-of-state placement.The ILB had an entry about a related aspect of this conflict between the courts and the IDCS on April 30th. It quotes an excellent story by Tim Evans of the Star that begins: "The state Supreme Court has issued a decision that should make it easier for judges to defend rulings that clash with Department of Child Services recommendations."Out-of-state placements of children will not be paid for without the express consent of the director of Child Services. This effectively blocks the out-of-state placement of children. It is unfortunate that the General Assembly has seen fit to remove this important decision from the hands of judges at the local level and place it in the sole hands of a bureaucrat in the executive branch. * * *
A decision of this magnitude should not be decided in a late-night meeting of a conference committee. It should be discussed openly and decided on its own merits rather than on page 415 of an emergency budget bill. * * *
I call upon the General Assembly to sponsor an open discussion on this issue and then to vote either to keep this decision in the hands of an ivory tower bureaucrat in the executive branch or to restore it to the hands of the elected judicial officers of this state who are in the trenches dealing with families and children on a daily basis.
Posted by Marcia Oddi on August 13, 2009 09:01 AM
Posted to Indiana Courts | Indiana Decisions | Indiana Government
Ind. Gov't. - Still more on: Governor Daniels eases, somewhat, new BMV license ID requirements
Here are stories today from:
The Evansville Courier & Press - Eric Bradner reports:
Citing negative backlash after stringent new rules requiring several documents such as birth certificates, Social Security cards and more were announced earlier this year, the state's Bureau of Motor Vehicles will ease those requirements by making the new rules optional and giving motorists extra time to get their documents in order, Gov. Mitch Daniels said Wednesday.The Fort Wayne Journal Gazette - Niki Kelly reports:Starting in 2010, the state will issue two types of licenses, but it still encourages providing the added documentation that proves their identities, lawful status, Social Security numbers and Indiana residence to get a federally compliant ID.
The federal government will begin mandating those IDs in order to board airplanes and enter some federal buildings in 2016. Those who need federally compliant IDs can provide the documentation to receive them any time between now and 2016, rather than on their next license branch visit as originally planned.
Or, Hoosiers can renew their current licenses without providing any of that added documentation. The IDs won't be federally compliant, but they will meet Indiana's requirements for licensed drivers. * * *
Those seeking a new driver's license, such as first-time drivers and those who have moved to Indiana from another state, still will have to meet the added documentation requirements. * * *
The BMV still will use its new facial recognition technology to check photos against its entire database to stop those who seek multiple driver's licenses. Licenses still will be mailed to motorists within 10 days, rather than handed out on the spot.
Daniels said Wednesday that after some internal discussion and customer feedback, the state will allow those renewing driver’s licenses or IDs to obtain a non-compliant card without providing the additional documentation.Okay, this is confusing. If you don't provide the additional identification materials when you renew, you will get an Indiana driver's license that has stamped on it "not for federal identification" or "not federally compliant," even though: (1) the feds aren't requiring such identification until 2016, and (2) may not even then because the feds may scale back the Real ID Law (as reported in this Aug. 12th ILB entry).A non-compliant card will contain a statement that it is not for federal identification, but it will allow Hoosiers to drive legally and to vote.
This means Hoosiers using such a card as identification would not be able to board aircraft or enter certain federal buildings when the federal government is expected to tighten restrictions starting in 2016.
It is possible, though, that enforcement won’t happen, because there is talk in Washington of repealing the identification rules.
Posted by Marcia Oddi on August 13, 2009 08:41 AM
Posted to Indiana Government
Wednesday, August 12, 2009
Environment - US DC for DC rejects efforts to toss out Bush mining rule change without actually going through the formal rulemaking process
Here is the story in the Charleston W Vir. Gazette, reported by Ken Ward Jr. The story includes links to the opinion and to numerous background stories.
Note the panoramic photo at the top of the page ...
Posted by Marcia Oddi on August 12, 2009 08:06 PM
Posted to Environment
Ind. Gov't. - More on: Governor Daniels eases, somewhat, new BMV license ID requirements
Read this ILB entry from earlier today in conjunction with this ILB entry from June 14th, headed "Obama Administration Plans to Scale Back Real ID Law."
Posted by Marcia Oddi on August 12, 2009 04:42 PM
Posted to Indiana Government
Ind. Courts - "Fort Wayne Attorney Believes Automated Welfare System Is Hurting Child Support Collections"
Jeff Neumeyer reports for Indiana's NewsCenter: Fort Wayne WPTA-TV, WISE-TV, CW, and My Network:
Attorney Josh Tourkow says in the past, welfare moms applying for benefits in Allen County did so in person at a welfare office, where deputy prosecutors assisted with paperwork to get fathers to court to pay support.And the Wall Street Journal has a story today by William M. Bulkeley headed "Glitches Mar Indiana's Effort to Outsource Social Services."He says the move to automation is creating a barrier in that process, that's letting more absent parents off the hook, and putting taxpayers on the hook.
Josh Tourkow/Attorney: " This is money that our taxpayers are entitled to, but the ball has been dropped. The only way basically to solve the problem is to go back to where it can all be done in one step."
Tourkow is advocating for a return to one-on-one contact at a local field office, where he believes clients get extra help in bringing absent parents into court to pay child support.
Allen County Juvenile Court Judge Steve Sims isn’t sure if automation is reducing child support collections locally, but he believes the issue warrants a more thorough examination.
Governor Mitch Daniels’ Administration is demanding service improvements from IBM to fix an array of problems, and is giving the company until early fall to make changes, or risk having its contract canceled.
Posted by Marcia Oddi on August 12, 2009 01:04 PM
Posted to Courts in general
Law - "Pitino contract contains morality clause"
Andrew Wolfson of the Louisville Courier Journal reports:
The University of Louisville's contract with men's basketball coach Rick Pitino allows him to be fired for cause for acts of “moral depravity” or for being dishonest with the university.The LCJ also provides this link to Coach Pitino's employment contract.It also allows him to be terminated for generating disparaging media publicity, if it is caused by his “willful conduct that could objectively be determined to bring (the) employee into public dispute or scandal, or which tends to greatly offend the public.”
The Courier-Journal reported Tuesday night that Pitino told police that he engaged in consensual sex with Karen Cunagin Sypher in a Louisville restaurant on Aug. 1, 2003, and paid her $3,000 to have an abortion.
Posted by Marcia Oddi on August 12, 2009 12:19 PM
Posted to General Law Related
Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)
For publication opinions today (3):
In Van Prooyen Builders, Inc. v. Earl L. Lambert, Jr. and Mildred Lambert , a 4-page opinion, Judge Najam writes:
Van Prooyen Builders, Inc. (“Van Prooyen”) petitions for rehearing and claims several errors in this court's opinion in Van Prooyen Builders, Inc. v. Lambert, 907 N.E.2d 1032 (Ind. Ct. App. 2009) (“Van Prooyen I”). We grant rehearing for the limited purpose of addressing Van Prooyen's contention that the only issue addressed by the trial court and the parties on appeal was whether the Tax Provision violated public policy and, therefore, that this court's opinion should have addressed only that issue. * * *In Joshua Lewis, Nashelia Avant, and Marilyn Owens v. State of Indiana , a 16-page opinion, Judge Bradford writes:Van Prooyen's arguments that this court is required to address only the legal theory relied upon by the trial court, or that this court “may not affirm a judgment where the trial court based its decision upon an invalid theory of law,” are not well founded.[1] * * * We prefer to consider only the legal arguments advanced by the parties, but our review is not limited merely because Van Prooyen did not fully brief the Tax Provision. As the Lamberts point out, it was a dispute over the meaning of the Tax Provision that gave rise to this cause of action. Indeed, the trial court's interpretation of the Tax Provision was the threshold issue and the legal predicate for its ruling that enforcement of the provision would violate public policy. Thus, the meaning of the Tax Provision was squarely before us, whether or not Van Prooyen addressed it, and our opinion was based on the plain language of the contract and Indiana law.
Van Prooyen's additional requests for this court to remand for the presentation of further evidence, or to order rebriefing on the meaning of the Tax Provision, are denied. Our prior opinion is affirmed in all respects.
_____________
[1] Van Prooyen cites two cases in support of this position, each of which suggests that this court cannot affirm a trial court's judgment if that judgment relies on an invalid legal theory. See In re Estate of Fanning, 263 Ind. 414, 417, 333 N.E.2d 80, 82 (1975); Data Processing Services, Inc. v. L.H. Smith Oil Corp., 493 N.E.2d 1272, 1274 (Ind. Ct. App. 1986). But both of those cases predate our Supreme Court's opinion in Mitchell and have, therefore, been impliedly overruled. See 695 N.E.2d at 923-24.
In this consolidated interlocutory appeal, Appellants-Defendants Joshua Lewis, Nashelia Avant, and Marilyn Owens challenge the trial court's denial of their petitions to transfer their cases out of Marion Superior Court 8 on the grounds that the State's refusal to waive jury trials in Court 8 violates both the federal and Indiana Constitutions. We affirm.In Marion County, Class D felony cases involving defendants with mental health problems or diagnoses are often transferred to Court 8, which is otherwise primarily a misdemeanor court. According to Matthew Gerber, Class D Felony Division Leader for the Marion County Public Defender Agency, prior to June 14, 2007, the State routinely agreed to waive its right to a jury trial in Class D felony cases in Court 8. On the afternoon of June 14, 2007, however, the trial court reportedly held a series of bench trials and acquitted multiple defendants. Thereafter, according to Gerber, the State refused to waive jury trials for Class D felony cases in Court 8, including in the Lewis, Avant, and Owens cases addressed below. The State's waiver policy in Court 8 allegedly differed from its policy in other courts including Marion Superior Courts 9, 15, 18, and 24, where, according to Gerber, it routinely waived jury trials for cases involving crimes such as residential entry and theft. * * *
The Appellants claim that the Marion County Prosecutor's Office's alleged policy to refuse to waive jury trials for Class D felonies in Court 8 deprives them of certain constitutional protections. [These are I Timeliness, II Effective Assistance of Counsel, III. Bench Trial, IV. Equal Protection, V. Privileges and Immunities. The Court discusses each in turn and finds not violations] * * *
Having rejected the Appellants' constitutional challenges, we find no error in the trial court's denial of their motions to transfer. The judgment of the trial court is affirmed.
Columbus Medical Svcs. Org., LLC v. Liberty Healthcare Corp.
NFP civil opinions today (6):
The Term. of the Parent-Child Rel. of H.P.; M.W. and R.P. v. Knox Co. Dept. of Child Svcs. (NFP)
Scott Stites, David M. Relue and Peter J. Walters v. Indiana Dept. of Natural Resources and RCI Development, LLC (NFP) - "Appellants Scott Stites, David M. Relue, and Peter J. Walters (collectively, “Appellants”) appeal the trial court's order dismissing their petition for judicial review of an agency decision by Appellee the Indiana Department of Natural Resources (“DNR”) for lack of jurisdiction. We affirm.
"On July 18, 2008, DNR issued its Notice of Final Order granting RCI Development, LLC (“RCI”) a license to construct a group pier on Crooked Lake in Steuben County. Appellants filed a petition for judicial review of DNR's order on August 18, 2008. The petition was signed by the Appellants but did not contain any verification that the petition had been signed under the penalty of perjury. * * *
"Here, it is undisputed that Appellants' petition lacked verification as required by Indiana Code Section 4-21.5-5-7(b). It is also undisputed that Appellants did not file a motion to amend their petition to include verification until October 1, 2008, nearly a month and a half after the conclusion of the statutorily allotted thirty-day period in which they could file a petition for judicial review of the DNR's order. Because Appellants' defect was left uncured when the statutory thirty-day period for filing Appellants' petition elapsed, we conclude that the trial court properly dismissed Appellants' petition for judicial review for lack of jurisdiction. See Kemp, 693 N.E.2d at 644; Hoosier Envt’l Council, 673 N.E.2d at 815-16. The judgment of the trial court is affirmed."
Lokmar Y. Abdul-Wadood v. S. Nowatzke, and WCU Trust Fund Office (NFP)
Transmontaigne Product Svcs. Inc. v. Americas Ins. Co., et al. (NFP)
State of Indiana v. Clay Crick and Jeffrey K. Watts (NFP)
NFP criminal opinions today (4):
Patsy M. Hoffman v. State of Indiana (NFP)
Steven W. Everling v. State of Indiana (NFP)
Charles E. Watkins v. State of Indiana (NFP)
B.P. v. State of Indiana (NFP)
Posted by Marcia Oddi on August 12, 2009 11:48 AM
Posted to Ind. App.Ct. Decisions
Ind. Gov't. - Governor Daniels eases, somewhat, new BMV license ID requirements
Responding, perhaps, to complaints such as this letter, quoted in an ILB entry headed "Making Hoosier women jump through hoops to drive, vote is unfair, " Governor Daniels announced this morning that he is easing the proposed new BMV license ID requirements.
Here is the press release, issued this morning:
INDIANAPOLIS (August 12, 2009) -- Governor Mitch Daniels announced today that Hoosiers will have more flexibility to obtain a federally compliant driver’s license or identification card at the Bureau of Motor Vehicles (BMV) beginning next year. States are required to begin issuing compliant cards in January 2010, and the federal government has mandated that states complete their compliance by the end of 2016.[More] See this story by the Indianapolis Star's Mary Beth Schneider.“We encourage citizens to obtain a SecureID license when it is time to renew, but we’re giving everyone the full six-year period in order to maximize convenience. Our BMV is now nationally-recognized for its short visit times and friendly customer service, and we intend to keep it that way,” said Daniels.
The BMV announced last month that beginning in January 2010, all Hoosiers who renew, amend, or apply for a new driver’s license or ID card would be required to obtain the new, federally compliant license or ID card.
But following customer feedback, the governor decided to make the change optional for current holders of an Indiana driver’s license or ID card. To obtain the new compliant card, one must provide documents that verify identity, lawful status, social security number and residency. Or current holders of an Indiana driver’s license or ID card may choose to obtain a non-compliant card without presenting the additional documentation.
Without a compliant ID or license, boarding aircraft or entering certain federal buildings will be prohibited; however, the federal government will likely not enforce those restrictions until 2016. Customers can return to the BMV to obtain a compliant card at any time.
There will be no option for new Indiana license and ID customers. They will be required to obtain a federally compliant card and provide documentation of identity, lawful status, social security, and residency documentation beginning in January.
Some Hoosiers also have said they are concerned they will not be able to produce the documents needed for the compliant card; the governor said that in some cases, the BMV will accept alternate documents. For example, some citizens were not issued a birth certificate, so the BMV may accept other documents such as church, hospital or school records.
Daniels said the state will implement centralized issuance of cards beginning in 2010 to reduce fraud and identity theft. The BMV will use its new facial recognition technology to check photos against its entire database to stop individuals from securing multiple driver’s licenses and will mail them to customers within 10 days.
Twenty-five other states already have adopted the central issuance procedure or are enacting it this year.
Posted by Marcia Oddi on August 12, 2009 10:39 AM
Posted to Indiana Government
Ind. Decisions - "Crown Point businessman given plea agreement in fraud case "
Here is the story from August 10th, by Susan Brown of the NWI Times; it begins:
Nearly five years after alarmed investors first alerted authorities, Lake Criminal Court Judge Diane Boswell reluctantly accepted a complex plea agreement Monday for business owner Daniel Swift, a former Crown Point School Board president.Here is a column by Jerry Davich of the Gary Post-Tribune. Some quotes:Swift was arrested in December 2004 at his business, High School Sports Publication Inc., and charged with defrauding at least 13 Indiana and Illinois clients of more than $900,000 by selling them unregistered securities, that promised to pay interest rates of up to 14.8 percent.
Individual investments ranged from $3,000 to $250,000. Investors included a single mother, a person who lost a home and was forced to move to Michigan, a man who invested his wife's inheritance and a Purple Heart recipient.
The Indiana secretary of state's prosecution assistance unit undertook an investigation in September 2003, working with Lake County prosecutors and Crown Point police.
In June, Swift, 63, finally entered into a plea agreement with special prosecutors in which he pleaded guilty to eight felony counts in connection with 58 securities-related charges.
Swift agreed to pay partial restitution of $423,264.33 -- less than half of what he allegedly bilked from investors -- and serve a 16-year sentence that includes no prison time. He will serve half the time at the Kimbrough Work Release Facility and spend the remaining eight-years on probation.
Three failures to make timely restitution payments would cost Swift, who is self-employed, from 30 to 120 days in the Lake County Jail. A fourth lapse would result in Swift's serving the full 16-year sentence in state prison.
Victims long have criticized the length of the state's investigation and what they consider a lenient plea agreement.
During Monday's protracted and emotional sentencing hearing, Boswell herself probed the state's reasoning and impatiently challenged defense arguments.
Given that they stand to receive only a fraction of the money Swift squandered, Boswell said victims may well be seeking "satisfaction" rather financial return.
In an emotional statement to the court, Nancy Schultz, who worked for Swift at the high school publication, said she and her husband lost their $180,000 retirement nest egg, forcing them to sell their home and move to a small town in Michigan.
"But most of all, I have to live with the guilt of knowing that I was the one that convinced my family and friends to invest their money, and that is something I have to live with every day," she said. "They trusted me, and I trusted Dan Swift."
Boswell dismissed Swift's statement apologizing to the court and his plea for forgiveness. "It is an abomination and a disgrace to take your friends' money and misuse it," Boswell said.
According to the plea agreement, Swift pleaded guilty to only eight counts of securities fraud, with the remaining counts dismissed by the state. Plus, he will immediately begin serving eight years at the Kimbrough Work Release facility, with an eight year suspended sentence.Yesterday afternoon Davich had this brief story, headed "Indiana Secretary of State disagrees with column on Swift case."Also, after a one-time payment of $31,000 to his victims, to be divided among them, he is to make regular monthly payments of only $2,000, again divided among them.
For instance, his biggest victims, Tim Roeske of Hebron and Nancy Schultz of Michigan, would receive $327.91 and $539.28 a month, respectively, each figure based on the amount of restitution owed by Swift.
Of course this is a drop in the bucket compared to what they "invested" through Swift.
At Monday's sentencing hearing, Roeske -- by far the most outspoken victim in this case -- left the courtroom early, either out of frustration, anger, or exhaustion.
Schultz and fellow victim Dennis Smith made a victim impact statement, as did the husband of the couple swindled for a quarter million dollars. He didn't plan on speaking. He felt compelled to say his peace.
He told Boswell the plea agreement should be tossed aside and Swift should be tossed in jail, as simply, justly, and righteously as that. But the machinations for Swift's justice were already set in gear months ago, possibly years ago.
One victim told me he lays full blame of this long-lingering case with the Indiana Secretary of State's Office. And politics may be at play.
The victim alleges Republican Secretary of State Todd Rokita purposely "dumped" this high-profile case on the Lake County prosecutor's office.
"The state bungled this case years ago knowing that no one in Lake County was qualified to handle it," the victim said. "And it turned out to be true."
Earlier this year, the case was transferred from the Lake County prosecutor's office to the Indiana Secretary of State's Office. Before that, Lake County Deputy Prosecutor Robert Neumaier was removed from the case after complaints from Swift's victims to the Indiana Commission on Judicial Qualifications.
Jim Gavin, spokesman for Rokita's office, told me Monday his office is pleased with the sentence, considering the circumstances.
"It's a rare sentence but a strong sentence," Gavin said, noting that it included the restitution of every penny ordered by law. "It also guaranteed a conviction."
Meaning if the case went to trial there is the chance Swift could have received a lesser sentence and the case could have dragged on for even more months or years.
Initially, the case involved up to 58 felony charges against Swift for up to $900,000 in securities fraud. Yet that figure of owed restitution was pared down to $423,264.
If Swift fails to make the aforementioned payments, he will serve time in Lake County Jail for 30, 60, or 120 days, or for the remainder of his sentence, depending on how many payments he has missed. But I doubt his victims would be so lucky.
"Has any case ever been handled this inefficiently?" asked Roeske, who has sent me several letters, calls and e-mails through the years venting his frustration.
And today the NWI Times has a second story by Susan Brown, headed "Swift case a lesson learned, prosecutors say: Investment fraud cases often leave victims dissatisfied with outcome." Some quotes:
CROWN POINT | Victims have criticized a plea agreement reached with a Crown Point businessman who squandered their life investments, but state and local prosecutors consider the outcome an overall success and a lesson learned for a sometimes-gullible public.In writing to The Times following Monday's sentencing hearing for Daniel Swift, Indiana Secretary of State Todd Rokita said it's cases like Swift's that have driven his office to become more proactive in making the public aware that if an investment sounds too good to be true -- it probably is.
Similar white-collar crimes have risen by 25 percent in the last year with the economic downturn, according to state officials.
Swift had been charged with defrauding at least 13 Indiana and Illinois clients of more than $900,000 by selling them unregistered securities, in which he promised interest rates of up to 14.8 percent. Investors became suspicious more than five years ago and alerted Rokita's office, which handed the case over to Lake County Prosecutor Bernard Carter as required by law. In February 2009, Rokita said Carter used a new law to appoint members of Rokita's staff as special prosecutors. * * *
Victims said they doubted Swift, at 63 and self-employed, can follow through on the deal, but Jim Gavin, spokesman for the secretary of state's office, said the restitution amount of about $424,000 did represent every outstanding dollar as shown in charges filed by Lake County prosecutors. The state's special deputies, though appointed only in February, achieved a guilty plea within a matter of months, he said.
"(The plea agreement) does guarantee a conviction," Gavin said. "It guarantees a placement and has much stronger consequences than probation, which the judge had the discretion to impose."
Rokita called the outcome "extremely rare and positive" when compared with other white-collar crimes today. Swift's victims are getting far more of a return than those of Bernie Madoff, who received pennies on the dollar after losing billions, he said.
Carter, however, was less effusive, saying he was satisfied with the terms of the plea agreement yet understood the victim's displeasure.
"The plea agreement was brokered with the secretary of state's office with my supervision," Carter said. "Both offices met with the victims. We explained the problems, possibilities and options."
What was emphasized was the role of the prosecutor versus getting the money back, he said.
"Our main purpose is to get a conviction," he said. "We're not a collection agency."
Carter said the $900,000 loss was an accurate figure, reduced to less than half because some losses were found not to be within the five-year statute of limitations. Time had run out to amend the charges, he said. His office unsuccessfully sought Swift's cooperation in including those amounts in the restitution, he said.
Carter said the office was prepared to go to trial within the year required by law and sought only one continuance, unlike the defense, whose strategy was one of delay through repeated continuances.
"People stall for various reasons," Carter said. "The court knows that, and we know that."
Posted by Marcia Oddi on August 12, 2009 08:51 AM
Posted to Ind. Trial Ct. Decisions
Ind. Courts - "Court translation services spotty, but less so locally"
Sophia Voravong of the Lafayette Journal Courier reports today:
When a Hispanic girl, 7, took the stand during a criminal trial in May in Tippecanoe Superior Court 2, she was able to understand English and answer questions about her name and age.This ILB entry from July 7th, headed "People Forced to Appear in Court Without Interpreters, Violating Federal Law", discussed, quoted from, and linked to The Brennan Center for Justice at NYU School of Law's 80-page report, Language Access in State Courts. One of the quotes was:But by her side stood a Spanish-language interpreter, who helped translate more complex questions posed by attorneys for the noticeably nervous girl.
"She can carry on conversational English ... but even for people born and raised in the United States, legal issues are difficult to understand," said Tippecanoe County Deputy Prosecutor Laura Zeman, who presented that case for the state.
"For legal matters, it's best for everyone to make sure witnesses are able to comprehend a question in full."
It's one example of how Tippecanoe County courts provide translation services for people who struggle to speak or understand English -- contrary to some state-level courts, according to a recent study by the Brennan Center for Justice, part of New York University's School of Law.
The study, "Language Access in State Courts," looked at 35 states, including Indiana, that have higher proportions of people with limited English proficiency. * * *
One aspect for which Indiana received low marks in the "Language Access in State Courts" study is that interpreter services are not automatically free of charge.
Indiana code allows each court decide how to cover costs.
Busch said judges here are bound by a January 2008 Indiana Supreme Court decision, which ruled that courts should provide translators if the defendant or litigant is indigent.
Those who can afford to hire a translator must pay on their own. The determination process is similar to whether a defendant is granted a court-appointed, public defender.
"When we do make the decision, the question is about the access in court and what needs to be provided -- whether it's a defendant or a witness," Busch said. "That is the top priority."
The Department of Justice has also renewed its commitment to enforce interpreter requirements in the state courts. Just this past February, DOJ warned the Indiana Supreme Court that court systems receiving federal funds violate Title VI of the Civil Rights Act of the United States if they charge money for interpreters.See the July 7th entry fro more.
Posted by Marcia Oddi on August 12, 2009 08:25 AM
Posted to Indiana Courts
Environment - IDEM meetings introduce new antidegradation rules
Gitte Laasby reports today in the Gary Post-Tribune in a lengthy story:
MERRILLVILLE -- Polluters like BP would be allowed to increase pollution into Lake Michigan without justifying the increase under proposed new rules, critics say.For more information, here is IDEM's antidegradation page.Environmentalists say the proposal by the Indiana Department of Environmental Management contains so many loopholes that it allows significant amounts of pollution to escape review.
Lyman Welch, water quality program manager with the Alliance for the Great Lakes, said under the new rule, BP could argue that the increased discharges of ammonia and silty materials -- that people protested in a firestorm in 2007 -- are exempt from requirements to justify the increase.
"Our major point is that Lake Michigan should have more protection and the ... process is there to force a thorough study and analysis about whether an increase in pollution is necessary," he said. "By exempting (certain) discharges into Lake Michigan, you avoid that process entirely."
The rules aim to protect uses of Lake Michigan and other lakes and streams by setting a limit on how much additional pollution can be discharged and under what circumstances.
IDEM plans to explain the "antidegradation" rules to the public at a meeting in Portage on Wednesday, Aug. 19.
In general, the new rules would allow polluters to discharge more as long as people can still use the water for the same purposes, for instance drinking, fishing and swimming. But polluters have to show the increase is "necessary to accommodate important economic or social development."
To prove that, a polluter would have to explore whether treatments to prevent the increase would be cost effective; examine the impact of the increase on human health, fish and aesthetics; and make sure benefits such as job creation would come from the increase.
But as long as the increase is below a certain threshold, polluters would not have to go through such an analysis to justify the increase.
The insignificance threshold for Lake Michigan is 1 percent of the amount of a pollutant that the lake could handle while still allowing people to drink the water, fish and swim. For waters outside the Great Lakes basin, the threshold is 10 percent.
IDEM is required to put in an insignificance threshold because of a 2000 law passed by the General Assembly. How to set the threshold has been a matter of debate between IDEM, industry, environmentalists and municipalities over the last year and a half.
"I would like to know how did IDEM come up with 1 percent versus a tenth of a percent or a one-hundredth of a percent or some even lower standard? I don't know what scientific justification they may have for any of that," Welch said. "If BP came up again under this rule, how would IDEM treat that? If that just gets exempted, is that the result people want in Indiana?"
Environmentalists proposed setting the insignificance level at the concentration of each pollutant already present in Lake Michigan. That means polluters would have to justify any increase above that concentration. (Increases are not allowed into Great Lakes waters for bioaccumulating chemicals, such as mercury.) If the increase is justified, it would be allowed.
Industry proposed a higher insignificance level and has argued increases that wouldn't significantly lower water quality should be allowed.
"It is important that the antidegradation process be designed to ensure that worthwhile projects are not unnecessarily discouraged, impeded or even halted because that would have profound effects on business and municipal planning with adverse impacts on economic growth and on society generally with little or no benefit to water quality," the Indiana Manufacturer's Association wrote in comments to IDEM.
A group of steel mills, including ArcelorMittal and U.S. Steel, made similar remarks.
"It is critical that the rules contain appropriate (insignificance level) provisions so that minor increases are not subject to an expensive, time-consuming regulatory review by IDEM before they can be authorized," the steel makers told IDEM.
Posted by Marcia Oddi on August 12, 2009 08:16 AM
Posted to Environment
Ind. Courts - Civil and criminal liability issues re accidental child death from sleeping with an infant
Tomorrow the Court of Appeals will hear oral arguments in a case where:
The Parents filed a complaint in Starke Circuit Court against the Schlamadingers, alleging that the Schlamadingers' negligence proximately caused the death of the Parents child. The Parents were overnight guests in the Schlamadingers' home, and they allege that the Schlamadingers did not provide an adequate place for the Parents' three-month-old child to sleep. The child suffocated during the night while sleeping on the couch with his mother.Today the Fort Wayne Journal Gazette has a story by Michael Zennie headed "State reinforces dangers of sleeping with infants." The story begins:
Medical experts, law enforcement officers and child advocates want to spread the word – sleeping with your baby can be deadly.A July 30th article in the Wall Street Journal, by Chris Herring, begins:Suffocation or other asphyxiation from unsafe sleeping kills more babies in Allen County than any other preventable cause of death – more than car crashes, more than drowning. Since 2008, it has claimed 12 lives, Deputy Allen County Coroner Patt Kite said.
Across the state, one baby a week suffocates because of unsafe sleeping, the Indiana Department of Child Services said.
But accidental suffocation is easily preventable. To that end, James Payne, director of the Department of Child Services, gathered with doctors, nurses, police officers and other experts in Fort Wayne on Tuesday to launch a new campaign to promote safe sleeping.
Officials stressed that babies should sleep alone on a firm mattress or in a bassinet; soft beds, pillows, blankets, couches and toys all pose suffocation risks for new babies; and that adults or older children can easily roll over and asphyxiate an infant without even knowing.
In March, a slumbering Indiana father [ILB - this is not the same incident as that before the COA] accidentally suffocated his six-month-old son to death while both were sleeping on a sofa. Law-enforcement officials later determined that the man had used methamphetamine and smoked marijuana before falling asleep that night.A WSJ Blog entry by Rachel Emma Silverman, also from July 30th, commented on their paper's story, noting:A month later, in Milwaukee, a one-month-old infant died while in bed with his parents and brother, possibly due to suffocation. Before coming home to sleep that night, the baby's mother had had three drinks at a nearby bar.
The tragedies are similar, but the way law-enforcement officials handled them is not. In the pending Indiana case, the father, Darik Morell, was charged with neglect of a dependent resulting in death, a felony that carries a 20- to 50-year prison sentence. An attorney for Mr. Morell, Chad Groves, called the incident "a horrible accident" and said he doesn't believe there is a clear link between his client's drug use and the baby's death.
No charges, in contrast, were filed in the Milwaukee case, or in two other bed-sharing deaths in the area since March.
Across the country, prosecutors are wrestling with how to treat what they say is a growing number of "rollover" deaths. The thorny questions in these and other child-neglect cases: At what point does carelessness, absent malicious intent, become punishable by criminal law? * * *
The legal standard governing criminal negligence varies by state, but the formulation in Wisconsin is fairly typical. There, a prosecutor is required to determine whether a certain act is "conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another."
Prosecutors are divided on how to apply the standard to bed-sharing cases or other accidental deaths, such as those that stem from auto accidents caused by fatigued drivers. Some say people should have to face criminal charges for their inattention, but others feel the tragedy itself should serve as punishment enough and that criminal proceedings are unnecessary. Said Matt Wilber, the lead attorney in Iowa's Pottawattamie County: "The No. 1 reason someone wouldn't file charges is because they feel bad for the family and don't want to pile on."
In addition, some prosecutors say filing charges in negligent bed-sharing deaths sends a strong message about the dangers.
The piece explores the legal implications of such cases. In some instances, the sleeping parents had been under the influence of alcohol or drugs, but it is unclear how much of an effect that had on some of the deaths.At the heart of the story is a thorny question: At what point does carelessness, absent malicious intent, become punishable by criminal law? These increasing “rollover” deaths are similar to another kind of parenting tragedy we’ve discussed previously: parents accidentally leaving their infants in the car, only to have the children overheat and die.
Prosecutors are divided on the legal treatment of such cases. Some say people should have to face criminal charges for their inattention, but others feel the tragedy itself should serve as punishment enough and that criminal proceedings are unnecessary. It can also be difficult to determine whether a child was smothered or simply stopped breathing on its own, a victim of a condition like Sudden Infant Death Syndrome.
Posted by Marcia Oddi on August 12, 2009 07:51 AM
Posted to Indiana Courts
Tuesday, August 11, 2009
Environment - "St. Joseph County to consider windmills: Bill would regulate turbine installation in St. Joseph County"
Updating this ILB entry from August 9th, Ed Ronco reports today in the South Bend Tribune. Some quotes:
Tonight, the St. Joseph County Council will hold a public hearing on proposed regulations for building windmills.So far, the turbines have gone up with little or no regulation.
"We put up eight of them without any type of permits because no one knew what to do with them," said Glen Smith, a sales representative for the turbine installer Wind-Wire, in South Bend.
Smith's firm has put up about 30 to 40 units in South Bend. The units run between $15,000 and $17,000.
There's nothing in the zoning code to regulate installation of wind turbines, said Larry Magliozzi, assistant director of the county's Area Plan Commission.
"The first thing is, St. Joseph County is saying yes, we should allow these," Magliozzi said. "But these are the circumstances and criteria under which we will allow them."
Those circumstances and criteria include:
-Limiting noise to between 52 and 55 decibels, less than the average air conditioner, which is about 60 decibels at 10 feet.
-Limiting the height in a residential district to 60 feet.
-Requiring lots with windmills to be a minimum of one acre.
-Requiring the turbines to withstand winds of up to 100 miles per hour. Officials say such winds are so strong and so rare, that if they actually occur, there would be bigger things to worry about than windmills.
-Requiring the windmills to be painted aesthetically pleasing colors — bright shades are out, and the color would likely be restricted to standard metal, white, gray or black.
-Requiring a single-pole design, instead of a lattice-work tower, which can be too easily scaled.
Tom Gruber, government liaison officer for the Home Builders Association of the St. Joseph Valley, said his group has concerns about the aesthetics of the windmills, which must tower above trees and nearby structures in order to pick up the most wind.
The association isn't opposed to wind generation, but it is concerned about the impact towers could have on buyers who might be deterred by a neighborhood with a lot of windmills.
Posted by Marcia Oddi on August 11, 2009 04:39 PM
Posted to Environment
Courts - "The search is on for a candidate for one of the most scenic jobs in American law: magistrate judge for the United States District Court in Yosemite National Park"
Here is the story in the NY Times, reported by Jesse McKinley, dateline Yosemite National Park.
Posted by Marcia Oddi on August 11, 2009 04:35 PM
Posted to Courts in general
Courts - "Bankruptcy Judges, Justice Dept. Rip Mortgage Companies"
This comprehensive set of resources from ProPublica, along with the story by Karen Weise, provides much useful material re mortgage servicers. A quote:
As mortgage delinquencies rise, more and more homeowners are learning the central role that mortgage servicers play in their lives. The legal cases show that role can be distressing. Judges have found that major mortgages servicers regularly mess up basic accounting, improperly credit payments and charge unwarranted fees. They’ve “not done a very good job of keeping the records,” said Judge Samuel Bufford of California.Mortgage servicers — typically either bank subsidiaries or independent companies — handle the day-to-day work with homeowners, ranging from collecting monthly payments to determining when to modify or foreclose. Problems with servicing often, but not always, occur once homeowners start having trouble making payments.
Complaints to the government about mortgage servicers have soared in recent years. They’ve risen from 31 percent of the complaints that the Department of Housing and Urban Development received in 2006 to 78 percent in 2008, according to HUD spokesman Lemar Wooley.
Posted by Marcia Oddi on August 11, 2009 04:30 PM
Posted to Courts in general
Ind. Courts - "Job losses take toll on public defender funds"
From the Johnson County Daily Journal, this lengthy story ($$) by Annie Goeller. Here are some quotes:
College students and people who have never been in trouble before are telling courts they don't have the money to hire an attorney when they've been arrested.Typically, their parents, spouses or families would hire an attorney to defend them.
But with a sluggish economy, many of those family members have lost their jobs, leaving the accused no choice but to ask the court for a public defender, attorneys said.
Public defenders, who are named to represent people who don't have the money to hire an attorney, are getting clients they typically wouldn't.
Some are college students, whose parents typically would foot the bill for trouble they got into while at school.
Others are adults who have never been in trouble and have turned to crimes such as theft to help them pay the bills.
"Instead of people who are 19, 20, 21 years old, we're seeing 29- and 30-year-olds who have had no record," attorney John P. Wilson said.
In December, Wilson represented a few shoplifters who said they were stealing from stores so their children would have Christmas presents.
Attorney Roy Dickinson said he is representing more people who are unable to pay child support after losing their jobs. He believes his caseload will increase more in the coming months as more people who have lost jobs no longer can pay their bills.
"There are a lot of people out of work, and there are just not as many jobs," he said.
The increase is comparable to that seen by social service and charitable organizations, who also are handling more requests for assistance, attorney Dan Vandivier said. * * *
Getting a public defender requires more than just asking, judges said.
Each court has its own way of determining whether a person is in need.
Circuit Judge Mark Loyd looks at how a person's income compares to the federal poverty level. If the person can't afford an attorney's fees but earns above poverty level, he can require that the defendant pay a monthly fee to help pay for their defense.
Hamner reviews people's expenses, income and job status.
If people are unemployed, he has asked that they bring in copies of job applications they have submitted to show they are looking for work.
If they are employed, he looks at their income, property they own and their bills, such as whether they have a cell phone or cable to see if they could make some changes to afford attorney fees, Hamner said.
"Nobody can 'afford' a lawyer. It's not a part of their budget. But can they pay?" he said.
Posted by Marcia Oddi on August 11, 2009 03:28 PM
Posted to Indiana Courts
Ind. Decisions - 7th Circuit decides 7 Indiana cases today
U.S. v. Floyd Deberry (ND Ind., Judge Simon)
In Estate of Moreland v. Dieter (ND Ind., Judge Simon), a 23-page opinion, Judge Dow [ND Ill., sitting by designation] writes:
Plaintiff-Appellant, the Estate of Christopher Moreland (the “Estate”), filed a motion for a writ of execution to enforce a judgment against St. Joseph County, Indiana and its Board of Commissioners (the “County”), pursuant to Indiana Code § 34-13-4-1 and Rule 69 of the Federal Rules of Civil Procedure. The district court denied the Estate’s motion. Because we conclude that the state law that the Estate seeks to invoke was not intended to apply retroactively, we affirm the order of the district court. * * *U.S. v. Virgil Smith (ND Ind., Judge Lee)Conclusion The beating death of Christopher Moreland reminds us, as this Court recently put it, that “[t]he distance between civilization and barbarity, and the time needed to pass from one state to the other, is depressingly short.” United States v. Bartlett, 567 F.3d 901, 903 (7th Cir. 2009). When public employees reveal through their actions exactly how short that distance is, they necessarily erode popular confidence in public institutions. Nevertheless, absent the predicates for direct legal liability against a governmental entity, determining how to restore that confidence is a matter of public policy rather than judicial construction. St. Joseph County, Indiana, may choose to compensate the Estate for the conduct of its officers, but because the Indiana General Assembly did not make its amendment to Ind. Code. § 34-13-4-1 retroactive, it is not a choice that we have the authority to impose. The order of the district court is AFFIRMED.
U.S. v. Jeffery Dean (SD Ind., Judge Barker)
In Antonio M. Johnson v. Steven Scott (ND Ind., Cosbey, Magistrate Judge), a 7-page opinion, Judge Wood writes:
When a suspect waves the white flag of surrender, the use of force in connection with an arrest may, as an objective matter, become unnecessary and inappropriate. Not all surrenders, however, are genuine, and the police are entitled to err on the side of caution when faced with an uncertain or threatening situation. This case involves Antonio M. Johnson, a suspect in a shooting who fled police first by car and then on foot. He made a last-second surrender when Sergeant Steven Scott and Archer, Scott’s German Shepherd police dog, were closing in on him. Archer bit Johnson’s left arm, and Scott struck Johnson in the process of handcuffing him.In Carlisle et al v. Deere & Co. (ND Ind., Judge Moody), a 17-page opinion, Judge Kanne writes:Johnson filed suit under 42 U.S.C. § 1983 alleging that Scott used excessive force in violation of the Fourth Amendment during the course of the arrest. Scott filed a motion for summary judgment, which the district court granted. Johnson now appeals that decision to this court, and we affirm.
The Beast, manufactured by Bandit Industries, Inc., is a commercial-grade tree grinder that weighs approximately 60,000 pounds and is the size of a semi-trailer. The Beast feeds on logs up to thirty-six inches in diameter, reducing them to mulch at a rate of up to one acre’s clearance per day. In 2002, the plaintiffs, Steve Carlisle and John Buszkiewicz, purchased a Beast, equipped with a 12.5-liter John Deere engine, for use in their landscaping and excavating business. Carlisle and Buszkiewicz soon discovered, however, that their Beast lacked the muscle befitting its name. The machine failed to perform as advertised, and the two men sued John Deere, seeking payment under the terms of an engine warranty. The district court granted summary judgment in Deere’s favor, a decision that we now affirm. * * *In U.S. v. Powell and Harris (ND Ind., Judge Simon), a 30-page opinion, Judge Manion writes:We conclude that the Performance Programming Connector’s wiring was not the result of Deere’s workmanship or installation. As such, the wiring was not included under the terms of the warranty. We cannot hold Deere liable for breaching a promise it never made. See Ind. Code § 26-1-2- 313(1)(a). Because Deere’s warranty did not cover a thirdparty’s wiring of the PPC, we AFFIRM the district court’s order granting summary judgment in Deere’s favor.
A grand jury indicted Willie Harris, a Gary, Indiana, lawyer, and Roosevelt Powell, who collected property taxes on behalf of Lake County, Indiana, for their role in the sale of two properties to the Gary Urban Enterprise Association. A jury found Harris and Powell guilty of wire fraud, conspiring to defraud the United States, and filing a false tax return. They appeal. We affirm their convictions and Harris’s sentence, but vacate Powell’s sentence and remand to the district court for further proceedings. * * *The Gary Urban Enterprise Association (“GUEA”) was such an association; businesses located within the Gary enterprise zone contributed heavily to it in lieu of paying inventory taxes. However, due to a combination of a large pot of money at the GUEA’s disposal—as much as five million dollars a year—and minimal oversight over how the money was to be spent, the GUEA attracted a corrupt abuse of the funds. The GUEA was ultimately dissolved after an investigation revealed that the GUEA’s executive director, JoJuana Meeks, was treating the GUEA as her personal bank account. Prior to its demise, however, the GUEA had embarked on a propertypurchasing spree, acquiring many properties in Gary for the purpose of redeveloping them. The convictions of defendants Roosevelt Powell and Willie Harris in this case resulted from their roles in the sale of two properties in Gary to the GUEA: a former grocery store located at 6300 Miller, and a vacant building located at 768 Broadway. * * *
The government presented sufficient evidence that Powell and Harris knowingly participated in a scheme to defraud the Historical Society that involved the use of the interstate wires, and both Powell’s and Harris’s convictions under 26 U.S.C. § 7206(1) survive review for plain error. Furthermore, the district court properly calculated the loss amount used to determine both Harris’s and Powell’s sentences by adding the $150,000 proceeds the defendants purloined from the sale of 6300 Miller to the $58,000 Lake County lost in property taxes as a result of the fraudulent lawsuit. The district court also correctly enhanced Harris’s sentence based on his failure to comply with the grand jury subpoena requiring him to hand over accounting schedules material to the government’s investigation of his 2001 tax returns. And the disparity between Harris’s sentence and Powell’s was warranted. We therefore AFFIRM the defendants’ convictions and Harris’s sentence. However, because the district court appeared to improperly reject Powell’s arguments for leniency based on his advanced age and poor health, we VACATE and REMAND Powell’s sentence for further proceedings consistent with this opinion.
Posted by Marcia Oddi on August 11, 2009 01:17 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)
For publication opinions today (3):
In Rockford Mutual Ins. Co. v. Terrey E. Pirtle , a 15-page opinion, Judge Kirsch writes:
Rockford Mutual Insurance Company (“Rockford”) appeals from a jury verdict in favor of Terrey E. Pirtle in his action against Rockford for breach of contract. Rockford raises the following issues for our review: I. Whether Pirtle's recovery under the policy is limited to the actual cash value of the building because of Pirtle's failure to comply with the repair and replacement cost policy provision of his policy; II. Whether Pirtle's suit was barred by the contractual one-year-limitation period provision in the policy; and II. Whether Pirtle's damages can include consequential damages and amounts exceeding policy limits. We affirm.In Derrick Chance Hardy and Robert T. Hardy v. Ashly Megan Hardy, a 14-page opinion, Judge Darden writes:
Robert M. Hardy (“Father”) and Derrick Chance Hardy (“Son”) challenge the trial court's order denying their request for reformation of the underlying warranty deed and ordering the partition and sale of the land as requested by Ashly Megan Hardy (“Daughter”). * * *In Term. of Parent-Child Rel. of J.H., A.G., Z.G., & P.M.; Z.M. v. IDCS, an 11-page opinion, Judge Riley writes:Lastly, we are not persuaded by Father and Son's testimony, given that the evidence shows that together they repeatedly acted against Daughter and her interests from the very beginning. Father, in particular, has shown himself to be extremely calculating when it comes to safeguarding his own personal interests. He coordinated with Son to conceal the valuable lease agreements; pocketed considerable rental proceeds for his own personal benefit; and went so far as to forge Daughter's signature when it served his interest to do so. Father has consistently, and without impunity, manipulated the circumstances to his benefit. Inasmuch as Father contends that his counsel made an error in drafting the warranty deed, which error resulted in his intent not being realized, we have only his and Son's self-serving assertions that such is the case and are not persuaded. Thus, we conclude that Father's present attempt to seek reformation of the warranty deed by injecting new terms (i.e. creation of a life estate or implied trust) appears to be yet another attempt to manipulate the circumstances to his benefit.
Appellant-Respondent, Z.M. (Father), appeals the trial court's Order terminating his parental rights to his minor child, P.M. We affirm.NFP civil opinions today (2):Father raises one issue on appeal, which we restate as follows: Whether the trial court erred in terminating Father's parental rights to P.M. when the Marion County Department of Child Services (DCS) had entered into an agreement with Father granting him the right to exercise visitation rights with his minor son. * * *
Father does not contend that the DCS failed to support the required statutory elements for termination by clear and convincing evidence; rather, Father's sole contention is that the trial court's Order terminating his parental rights is inconsistent with the March 27, 2008 agreement which provided that Father would have supervised visitation with his son as long as he participated in drug screens. * * *
Similarly, we believe that allowing parents to avoid the consequences of the termination of their parental rights by executing an agreement providing for visitation, or any other parental right, in an attempt to circumvent Indiana Code section 31-35-6-4(a)(1), would impermissibly tie the hands of the trial court and the DCS, while at the same time discourage future adoption of the child whose parents' rights have been terminated. Nevertheless, we also acknowledge that the agreement entered into between Father and DCS was valid until the trial court issued its Order terminating Father's parental rights to P.M. However, we conclude that the agreement became void at the moment the trial court entered its Order terminating Father's parental rights. This holding furthers the strong public policy underlying Indiana's termination statutes in protecting our children's emotional and—in some instances—physical well-being and in avoiding protracted instability and uncertainty in the lives of children whose parents have failed to rectify their situation or refuse reunification outright.
Based on the foregoing, we conclude that the trial court did not err by terminating Father's parental rights.
Great Northern Insurance Co. and Federal Insurance Co. v. Precision Plastics of Indiana, Inc. (NFP) - "Appellants-Plaintiffs Great Northern Insurance Company and Federal Insurance Company (“Insurance Company”) appeal the grant of partial summary judgment to Appellee-Defendant Precision Plastics of Indiana, Inc. (“Precision”) as to scope of the Insurance Company’s duty to defend Precision in an underlying environmental contamination matter. We affirm in part, reverse in part."
In the Matter of the Guardianship of R.S.; J.S. v. B.S. (NFP)
NFP criminal opinions today (5):
Jose L. Hernandez v. State of Indiana (NFP)
Dexter L. Burns v. State of Indiana (NFP)
Ebonee Jackson a/k/a Ebonee Jackson-Taylor v. State of Indiana (NFP)
Willie Pope v. State of Indiana (NFP)
James M. Burns v. State of Indiana (NFP)
Posted by Marcia Oddi on August 11, 2009 12:26 PM
Posted to Ind. App.Ct. Decisions
Law - Wisconsin governor's counsel not admitted to Wisconsin bar
Jason Stein of the Wisconsin State Journal reported yesterday:
Gov. Jim Doyle’s chief legal counsel resigned today after the Republican Party of Wisconsin filed a complaint with state regulators alleging that she was practicing law without a license.Much ado ...“Chandra Miller Fienen has voluntarily tendered her resignation. She realizes that she has placed this office in a difficult position,” Doyle spokesman Lee Sensenbrenner said in a statement. * * *
Chandra Miller Fienen was hired to the office of legal counsel in 2008 after serving as the number three official in the state Department of Commerce.
The Republican Party’s complaint with the state Office of Lawyer Regulation alleges that Miller Fienen engaged in the unauthorized practice of law by presenting herself as Doyle’s “chief legal counsel” in documents addressed to the party.
In a statement, Doyle spokeswoman Carol Andrews said Miller Fienen had practiced law in California and been hired as a “senior adviser” on issues such as education and commerce. She said Miller Fienen hadn’t practiced law without a license or exceeded her authority.
Miller Fienen is not listed as a licensed lawyer by the state Bar of Wisconsin. But her father, budget committee co-chairman Sen. Mark Miller, D-Monona, said Friday that his daughter had passed her bar exam “within the last year.”
Posted by Marcia Oddi on August 11, 2009 12:19 PM
Posted to General Law Related
Ind. Courts - Still more on: Managing the electronic communication revolution in the Indiana courtroom
Updating this ILB entry from Aug. 4th, Katherine A. Helm (currently clerking for a U.S. district court judge in California and will soon be clerking for a U.S. court of appeals judge in Washington) writes for The National Law Journal in a lengthy article:
The explosion of Web 2.0 technology has revolutionized the world. Given the role Twitter played in the Iranian election fallout, perhaps we shouldn't be surprised to hear about a juror twittering in court or a witness texting on the stand. Some might even think it pedestrian to lament that trials are being waylaid by interactive technology in courtrooms. Yet this phenomenon has rivaled swine flu mania among the legal bar with good reason. The use of electronic devices like cell phones and BlackBerrys by jurors and witnesses, in a manner that disrupts and taints court proceedings to the level that presiding judges are forced to declare a mistrial, is serious injustice indeed. * * *An informal scan of the judicial landscape indicates the reaction of many judges to date has gone one of two ways: Either avoid the issue and hope that your court is not the one that will need to declare a mistrial, or else mitigate the problem by modernizing jury instructions regarding the duties not to interfere with or otherwise mar the presentation of evidence. Although the second option is more commendable than inaction, it probably doesn't best manage the problem, either.
The best way to manage this problem is one that only a handful of courts across the country have adopted: Allow preauthorized counsel to bring electronic devices into the courtroom and make all other courtroom attendees (jurors, witnesses, observers) check their devices in the lobby. The Southern District of New York is testing out such an interim rule now, where authorization can be given only by specific court order -- although being forced to specify each device for each named attorney each day might be overkill.
A generalized preauthorization rule for lawyers would solve the constitutional defense question, many of the jurors-gone-wild scenarios and the witness going rogue on the stand situation. It would also address security concerns that the press or public could be surreptitiously recording court proceedings or photographing jurors or witnesses. Enforcement of the rule would also mitigate courtroom disturbances caused by the typical cacophony of cell phone ringers and the like.
More courthouses should incur the extra cost to have the U.S. marshals run a check-in system at security screenings, like the ones at museums and concert halls, to avoid the incalculable costs of mistrials due to tainted proceedings. The recent National Sheriffs' Association conference discussed this effort for sheriffs at state courts and for U.S. marshals in federal courts. Now is the time for the U.S. Marshals Service to invest in this court security across the nation. It may not be a panacea, but it is progress and it avoids further balkanizing individual courts, courthouses or districts with splintered self-policing.
Posted by Marcia Oddi on August 11, 2009 12:13 PM
Posted to Indiana Courts
Law - The Department of Justice Guide to the Freedom of Information Act (2009 Edition)
Posted by Marcia Oddi on August 11, 2009 12:11 PM
Posted to General Law Related
Environment - Tom Easterly recovering from heart surgery
Indiana Department of Environment head Tom Easterly had a quadruple bypass last week. No word yet on how long he will be out or who will be in charge in the interim. Easterly was appointed by Gov. Daniels at the beginning of the Governor's first term.
Posted by Marcia Oddi on August 11, 2009 08:41 AM
Posted to Environment
Courts - "In Retirement, Justice O'Connor Still Rules "
From the Wall Street Journal today, a long story by Jess Bravin that begins:
Sonia Sotomayor just became the third woman to move from the appellate bench to the U.S. Supreme Court. The first woman on the nation's highest court has gone in the opposite direction.Though she retired in 2006 to look after her ailing husband, Justice Sandra Day O'Connor is still out there judging. Unbeknown even to some of her former colleagues on the Supreme Court, the 79-year-old jurist has been visiting federal appellate courts across the country, filling in as a substitute judge when vacations or vacancies leave their three-member panels understaffed.
"It's nice to keep your hand in a bit," she said in an interview in the chambers she still keeps at the Supreme Court.
As a substitute judge, Justice O'Connor has heard nearly 80 cases and written more than a dozen opinions. In her 24-year Supreme Court tenure, she often provided the pivotal vote on such issues as abortion, affirmative action and religious freedom. Nowadays, she decides such matters as whether a drug dealer could escape punishment because a search warrant listed one household trash can instead of two.
Unlike the Supreme Court, which cherry-picks only 1% of the 10,000 cases it is petitioned to hear, the appellate court must take an appeal from almost any loser in federal district court. Cases almost never plumb heady legal issues, but instead revolve around some quotidian -- some might even say boring -- facts. "Some fact-bound criminal case is not of special interest to me, I have to confess," she says. Most of her caseload is "not particularly demanding, intellectually."
Rather than probing the Constitution's subtleties, says Judge Michael Boudin, who has sat with Justice O'Connor in his Boston courtroom, "99% of it doesn't have the intrinsic political or public implications of a typical Supreme Court case." * * *
Occasionally, the justice learns firsthand the limited discretion of a lower court judge.
"I now have occasion to have to apply some of those [Supreme Court] holdings with which I didn't agree when they were made, but of course now they're binding," she says. "It hasn't caused me to change my mind on a previous dissent. But that's water over the dam."
In June, Justice O'Connor found herself outvoted on an appellate panel for the first time. Two circuit judges decided that copper tubing stolen from air-conditioning units on a Houston rooftop were excluded from an insurance policy.
She filed a vigorous dissent. "Imagine that valuable devices or appliances are sealed within a building's interior walls," she wrote. "Under the majority's view, damage caused by tearing into these walls could not be covered."
Posted by Marcia Oddi on August 11, 2009 08:10 AM
Posted to Courts in general
Monday, August 10, 2009
Courts - Wine shipping dispute involving Maine and Oregon, with the latter represented by IU Law Prof. Tanford [Update]
[Updated 8/11/09] This is a red-face item for sure. An alert reader was nice enough to let me know that the following article in the Maine newspaper that I took to be current is dated April 11, 2006! I thought about removing it, but decided to let it stay, with this information attached at the top.
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Liz Chapman of the Lewiston Maine Sun Journal reports:
The state is being sued in federal court by an Oregon winery that alleges a ban on direct sales of wine over the Internet is unconstitutional.A legislative committee on Friday voted 9-3 against a bill that would open the borders for direct wine sales from out of state. The measure has not yet been debated by the full Legislature.
In its lawsuit against Gov. John Baldacci, Attorney General Steven Rowe and other state officials, Cherry Hill Vineyard of Rickreall, Ore., alleges that the state discriminates against out-of-state wineries because the only way they can sell directly to Maine consumers is to open a retail store in Maine.
The winery also alleges that state law violates the commerce clause of the U.S. Constitution, which allows for the free flow of commerce among the states.
State law bans the direct shipment of wine to consumers by either Maine or out-of-state wineries, diffusing the argument that the law discriminates against out-of-state operations, according to Assistant Attorney General Christopher Taub.
The state also argues that federal law gives the states the right to regulate and control liquor and wine consumption.
Taub said Monday a U.S. Supreme Court decision in May 2005, which struck down laws in Michigan and New York that banned direct Internet wine sales, is not relevant to Maine's suit. Taub said the key distinction is that the Michigan and New York laws allowed only in-state wineries to ship their product directly to consumers and therefore did discriminate against out-of-state wineries.
Maine law requires large wineries to distribute their products only through wholesalers, Taub said.
The state is most concerned about direct Internet sales because of the potential for sale to minors which, under Maine liquor laws, is defined as anyone under the age of 21, Taub said.
But law professor James Tanford of the Indiana University School of Law, representing the Oregon winery, said Monday states are slowly modernizing their liquor laws - some for the first time since the end of Prohibition.
Tanford disagrees with Taub on all the key arguments. In particular, Tanford said judges laugh at attorneys general who use the argument that direct sales could lead to illegal sales to minors.
"That argument has superficial appeal," he said, "but it's simply a red herring."
Tanford argues that minors can already get any kind of liquor if they want it. And they usually don't want wine, he said.
Internet wine sales are expensive and they don't arrive for up to two weeks.
"They (young drinkers) scrape together $3 for a six pack of beer and they want it now," Tanford said.
America's small wineries have given up on trying to get state legislatures to update the liquor laws and instead have turned to the courts. Tanford said laws in more than 20 states have been challenged in federal court since 1998. Half are still pending, but the wineries have won every case but one, he said.
He said the better way to avoid sales to underage buyers is to allow direct shipping, which would require alcohol shipments to be well labeled and for consumers to prove their ages.
Meanwhile, Lt. Patrick Fleming, who oversees liquor enforcement of Maine retailers, conceded Monday the state has no real way to enforce the existing ban on direct sales. Not only does the state lack the money and manpower to track down shipments, Internet liquor sales are hard to track if the buyer isn't honest about what's in the package.
Fleming said the state would investigate suspected shipments, on a case-by-case basis, if someone filed a complaint or report.
No one has filed a complaint in the three years since the state all but dismantled its liquor enforcement operation, he said.
"It's not something you can be proactive about," Fleming said.
The federal lawsuit is filed in the U.S. District Court in Bangor. Taub said he doesn't expect a decision until late in the year.
Posted by Marcia Oddi on August 10, 2009 06:40 PM
Posted to Courts in general
Ind. Decisions - "Apparently there are all sorts of surprises in the special session budget"
Thanks to Joel Schumm of IU Law for pointing out to me the footnote on the last page of D.S. v. State of Indiana, reviewed in the ILB entry immediately below. Judge May writes in note 2:
We pause to note a recent change to one of the statutes implicated in this case. When the court issued its modified dispositional order placing D.S. in the Rite of Passage program, Indiana law provided that IDCS was “not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement does not comply with the conditions stated in IC 31-34-20-1(b) or IC 31-37-19-3(b).” Ind. Code § 31-40-1-2(f). During the 2009 Special Session of the Indiana General Assembly, Indiana Code § 31-40-1-2(f) was amended as follows: “The [IDCS] is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement is not recommended or approved by the director of the department or the director’s designee.” (Emphasis added). However, because the change to Ind. Code § 31-40-2-1(f) did not become effective until July 1, 2009, it is inapplicable to the present case.
Joel shows how the language changed:
(f) The department is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placementThis is the second special session budget language surprise the ILB has run across in the past few days. The other is the language limiting use of golf carts to cities and towns which have passed authorizing ordinances -- with no equivalent authority for counties. This has reportedly caused havoc with some long-time practices. See the entries from August 9th ("New golf cart laws may need corrective amendments") and August 5th ("New golf cart law, as amended, may work a hardship on those outside Culver town limits"). The final paragraph of the August 5th entry points out that the problems arise from language inserted into the special session budget bill.does not comply with the conditions stated in IC 31-34-20-1(b) or IC 31-37-19-3(b).is not recommended or approved by the director of the department or the director's designee.
Posted by Marcia Oddi on August 10, 2009 01:23 PM
Posted to Indiana Decisions
Ind. Decisions - Court of Appeals issues 7 today (and 8 NFP)
For publication opinions today (7):
In Dwight R. May v. Jerry George, an 11-page case, Judge May writes:
Dwight R. May sued Jerry George for negligence after he was injured by a tree that fell from George‟s property. George filed a motion for summary judgment, which the trial court granted. * * *In Lincoln Bank v. Conwell Construction, Hedger Construction, Inc., Mitchell Construction, Inc., et al, a 12-page opinion, Judge Bailey writes:On July 10, 2008, George filed a motion for summary judgment. George argued that under Valinet v. Eskew, 574 N.E.2d 283 (Ind. 1991), a rural landowner does not owe a duty to protect others outside the land from physical harm caused by a natural condition of the land. George designated evidence that the land was rural and he did not have actual knowledge the tree was in a dangerous condition. This evidence included the police report; George's deposition and affidavit; May's deposition; the deposition of Dan Lucas, the superintendent of the Lawrence County Highway Department; and the report of Joseph Rainwater, a certified arborist. * * *
In order to establish a claim of negligence, May must show: (1) George owed May a duty, (2) George breached that duty, and (3) the breach proximately caused May's injuries. See Denison Parking, Inc. v. Davis, 861 N.E.2d 1276, 1279 (Ind. Ct. App. 2007), trans. denied. Negligence cases are usually fact-sensitive; however, a defendant is entitled to judgment as a matter of law if the undisputed facts negate at least one element of the plaintiff's claim. Id. The existence of a duty is a question of law. Id. * * *
May has not designated any evidence that George owed him a duty; therefore, we affirm.
This dispute concerns a real estate developer and its five creditors. Lincoln Bank appeals the trial court’s order in which it concluded that Lincoln Bank’s mortgage was merely equal in priority to four mechanic’s liens. We reverse and remand with instructions, holding that the mortgage has priority over the mechanic’s liens.D.S. v. State of Indiana - "The Indiana Department of Child Services (“IDCS”) seeks expedited review, pursuant to Indiana Appellate Rule 14.1, of the Madison Superior Court’s modified dispositional order placing D.S., a juvenile adjudicated to be a delinquent, in an out-of-state shelter care facility contrary to the IDCS’s placement recommendation. We affirm. * * *
Issue. * * *The dispositive issue is whether the trial court erred in concluding that the mortgage and the four mechanic’s liens were equal in priority. * * *
For these reasons, we conclude that the trial court erred in ordering the five creditors to share equally in the foreclosure proceeds. Instead, the first priority is to satisfy Lincoln Bank’s mortgage. After that, the four mechanic’s liens are equal in priority.
"The court concluded IDCS’s placement recommendations were contrary to D.S.’s best interests. It placed D.S. in the Rite of Passage program and supported its order with specific factual findings based on ample evidence of D.S.’s history of drug abuse, gang affiliation, and expulsion from school, D.S.’s athletic and leadership abilities, his family relationships, his wishes and those of his mother, and the Probation Department’s formal recommendation. The trial court’s findings support its placement decision. We therefore cannot conclude that the trial court committed clear error in ordering that D.S. be placed in the Rite of Passage program."
Truck Finance Specialists, Inc. v. W & S. Leasing, Inc., et al "When they formed TFS, the Wades consented to Wiger and Smith essentially having permanent majority representation on TFS’s board of directors, unless Wiger and Smith decided to give up such representation. The trial court correctly concluded that the Wades’s attempt to remove Wiger and Smith from the board, amend the articles of incorporation to operate without a board of directors, and nullify the original bylaws were in violation of the IBCL, as well as the original articles of incorporation and bylaws. We affirm the trial court’s decision reinstating Wiger and Smith to the TFS board, as well as reinstating the original bylaws, and ordering TFS to rescind its amended articles of incorporation."
In Tamatha M. Nealy and John Nealy v. American Family Mutual Ins. Co., Shadawn Quinn, and Courtney Hammonds, a 16-page, 2-1 opinion, Judge May writes:
Tamatha and Hannah Nealy (collectively, ―The Nealys‖) appeal the grant of American Family Insurance’s motion for setoff and the denial of their motion to correct error and for additur. * * *Phillip Stewart and Judith Stewart v. TT Commercial One, LLC, Thompson Thrift Inc., and Omer J. Stocker, Jr. - "Phillip Stewart and Judith Stewart (collectively, the “Stewarts”) appeal the trial court's grant of summary judgment to TT Commercial One, LLC (“Commercial One”), Thompson Thrift Development, Inc. (“Thompson Thrift”), and Omer J. Stocker, Jr. (collectively, the “TTCO Parties”). The Stewarts raise several issues, which we revise and restate as: I. Whether the trial court erred by granting summary judgment to the TTCO Parties; and II. Whether the trial court erred by ordering the Stewarts to pay attorney fees incurred by the TTCO Parties.The trial court erred to the extent its grant of American Family’s motion for setoffs was premised on the advance payment statute, and the language of the Nealys’ policy did not permit the setoffs. We therefore reverse and remand for entry of judgment in the amount of the jury verdicts.
BARNES, J., concurs.
BAKER, C.J., concurs in part and dissents in part. [which begins, at p. 14] I respectfully dissent from the majority’s conclusions regarding the payments made by American Family to cover the Nealys’ medical expenses. I believe that the advance payment statute applies to these facts.
"We affirm in part, reverse in part, and remand."
Emmanuel McClendon v. State of Indiana - "Emmanuel McClendon appeals his conviction of and sentence for murder. We hold there was no error in the admission of evidence, the evidence was sufficient, the bailiff's communication with the prosecutors was harmless, and his sentence is appropriate. Therefore, we affirm."
NFP civil opinions today (5):
Shannon Harshman v. Randy Harshman (NFP)
Jeffrey and Michelle Holewinski v. The Landings Homeowner's Association (NFP) - "The Holewinskis appeal pro se, citing no legal authority, but claiming it is inequitable that they should have to pay HOA dues while the common areas of their housing complex are not adequately maintained. As best we can discern, they disagree with the small claims court’s determination that it lacked jurisdiction to order the equitable relief sought by the Holewinskis. * * *
"The jurisdiction of a small claims division of a superior court is limited to that which is granted by the Indiana Constitution or statute. Buckmaster v. Platter, 426 N.E.2d 148, 150 (Ind. Ct. App. 1981). A small claims court may award limited damages, but does not have power to award injunctive relief apart from the statute. Olympus Props., LLC v. Plotzker, 888 N.E.2d 334, 337 (Ind. Ct. App. 2008). As such, the small claims court correctly determined that it lacked jurisdiction to order the HOA to perform certain repairs requested by the Holewinskis or to remove HOA officers. The dismissal of the equitable claims was appropriate. Affirmed."
W.G., Alleged to be CHINS; A.G. v. IDCS (NFP)
Term. of Parent-Child Rel. of N.D., et al; S.D. v. IDCS (NFP)
Term. of Parent-Child Rel. of S.L., et al; A.L. & P.L. v. IDCS (NFP)
NFP criminal opinions today (3):
Billy Dee Williams v. State of Indiana (NFP)
Lawrence Lee Jones v. State of Indiana (NFP)
Logan LaSalle Brown v. State of Indiana (NFP)
Posted by Marcia Oddi on August 10, 2009 12:33 PM
Posted to Ind. App.Ct. Decisions
Courts - "Litigants become their own lawyers"
The LA Times' John Keilman has a story today on "people are navigating the justice system themselves." The ILB has a long list of earlier entries on this topic. Some quotes from today's story:
Reporting from Chicago -- When Marsha and Larry Lipsky wanted to evict a troublesome tenant from their home in Arlington Heights, Ill., they consulted a few attorneys but couldn't afford fees that ran from $500 to $5,000.So they did what a lot of people with legal trouble are doing these days: They became their own lawyers.
"I was a nervous wreck," Marsha Lipsky, 67, said after presenting her case to a judge and winning an order for the tenant to leave.
Legal service has never come cheap. But lawyers, judges and other experts say that for many people, the recession has made it a nearly impossible expense. So more litigants are navigating the often-bewildering justice system by themselves.
Advocates and court officials have responded with expanded advice desks, instructional websites, even plans to connect litigants with law students by computer. But the trend still alarms many observers, who say courtrooms weren't made for amateurs.
"In a complex domestic-relations dispute or commercial dispute, it's kind of like trying to do surgery on yourself," said Bob Glaves of the Chicago Bar Foundation, which funds numerous legal assistance programs. "If you're not trained in these things, you have no chance."
Anyone facing jail time for a criminal offense is guaranteed legal help, but that is not true for civil cases, which include foreclosures and lawsuits over unpaid credit card bills.
Many low- and middle-income people have been left to square off against professional attorneys who represent banks, collection agencies and other deep-pocketed organizations.
Cook County Associate Judge Thomas More Donnelly, who until recently ran a courtroom for those fighting wage garnishments and frozen bank accounts, said such contests were often stark mismatches.
He recalled cases in which defendants didn't know about a state law that allows debtors to keep up to $4,000 safe from creditors.
He would tell them about it, but if they didn't understand what he was saying, he would have to drop the matter because he had to remain impartial.
"It would be so distressing to me," he said. "There are things that are known to everyone in the courtroom except the debtor."
Posted by Marcia Oddi on August 10, 2009 12:15 PM
Posted to Courts in general
Ind. Gov't. - "Legislative resolutions add up: 29 hours spent on such measures"
Eric Bradner of the Evansville Courier & Press reports today in a story that begins:
INDIANAPOLIS — Ripped apart for months, locked in a bitter and partisan debate over the state's next budget, the Indiana General Assembly could have quickly packed up and shuffled off after approving a compromise just in time to prevent a state government shutdown.Instead, it chose to stick around for just a few more minutes and come together to pass one more measure. State lawmakers' final act this year wasn't clearing a budget; it was passing a resolution memorializing Gary, Ind., native Michael Jackson.
The gesture was a harmless one — no distraction, since their work was done. But as for the 446 resolutions brought up during the inconclusive regular session, which ended April 29, some good-government advocates say time was wasted.
Even though they didn't finish work on a new state budget in time to avert a special session, state lawmakers spent 29 hours during this year's regular session on resolutions — back-patting measures with no actual impact — on the Indiana House and Senate floors.
Sugar cream pie was honored as "Hoosier Pie." A lobbying group was thanked for providing Wal-Mart gift cards to legislators and staffers. And the beverage lobby won the "sincere appreciation" of the Senate for donated soft drinks, which "refresh and rejuvenate members and employees of the Senate as they complete the arduous legislative process," according to Senate Resolution 98.
"It is a tremendous distraction from some of the real important issues of today," said Julia Vaughn, a lobbyist for the advocacy group Common Cause Indiana.
The General Assembly sometimes sees its deliberations on bills that could become laws waylaid for more than an hour by time spent on resolutions, as high school sports teams are lined around chamber floors and the elderly are brought out for 100th birthday celebrations. The longest string of such resolutions came April 21 when the Senate spent two full hours on them.
Posted by Marcia Oddi on August 10, 2009 11:30 AM
Posted to Indiana Government
