Saturday, August 22, 2009
Law - "Where’s the Rulebook for Sex Verification? "
The Sports Section of today's NY Times has a long, fascinating article by Alice Dreger, professor of clinical medical humanities and bioethics in the Feinberg School of Medicine at Northwestern University. How are a few snippits:
Many think you can simply look at a person’s “sex chromosomes.” If the person has XY chromosomes, you declare him a man. If XX, she’s a woman. Right?Wrong. A little biology: On the Y chromosome, a gene called SRY usually makes a fetus grow as a male. It turns out, though, that SRY can show up on an X, turning an XX fetus essentially male. And if the SRY gene does not work on the Y, the fetus develops essentially female.
Even an XY fetus with a functioning SRY can essentially develop female. In the case of Androgen Insensitivity Syndrome, the ability of cells to “hear” the masculinizing hormones known as androgens is lacking. That means the genitals and the rest of the external body look female-typical, except that these women lack body hair (which depends on androgen-sensitivity).
Posted by Marcia Oddi on August 22, 2009 06:57 PM
Posted to General Law Related
Ind. Courts - "Budget battles not over in St. Joseph County"
Some quotes from about half-way through a story dated Aug. 20th by Troy Kehoe of WSBT.com, South Bend:
Juvenile Justice Center administrator and Probate Court Judge Peter Nemeth is preparing too, submitting a budget nearly identical to last year's — that keeps cuts implemented over the last two years intact."We have cut about 20% over the last two years," he said.
But, the JJC/Probate Court budget does include some increases in the form of pay raises for eight of his employees — issued earlier this year despite the County Council's objection.
Nemeth called the Council's "refusal to permit raises, unjust, unfair and discriminatory" at the time. Under Indiana law, judges can "mandate" the amount of money they need to "operate their courts sufficiently." But, ultimately, their budgets are set by the County Council, and approved by County Commissioners.
Nemeth's judicial mandate would change that; boosting Probate Court employees' pay by a total of $60,208. Including fringe benefit costs, Nemeth estimates the total cost to be around $79,000.
The County Council refused to adhere to the mandate, and the matter will go before a specially appointed judge next month.
Nemeth says even if he loses, he won't cut.
"I don't think that's going to happen. But, if it does, I'll have to take another look and determine what to do. Obviously, it's a new budget year. Might have to try a different approach. Might have to issue another mandate," Nemeth said.
And, if he's asked to make additional cuts in that case?
"It would be virtually impossible to do without shutting things down," Nemeth said.
Posted by Marcia Oddi on August 22, 2009 02:22 PM
Posted to Indiana Courts | Indiana Government
Environment - More on: IDEM meetings introduce new antidegradation rules
Updating this ILB entry from August 12th, Gitte Laasby of the Gary Post-Tribune reported August 20th:
PORTAGE -- Indiana's proposed pollution rules won't address pollutants some say could have a major impact on water quality in the state's lakes and streams: phosphorus and nitrogen.Today the Fort Wayne Journal Gazette has an editorial about the public meetings:Technical experts and top officials from the Indiana Department of Environmental Management acknowledged that at a 21/2-hour public meeting in Portage on Wednesday.
"I don't think these rules are acceptable because they're going to exempt very important pollutants that will have a demonstrable effect on waters in Indiana," said Albert Ettinger, senior attorney with the Environmental Law & Policy Center.
The rules only regulate pollutants for which the state has established how much of a concentration will do damage on the environment, for instance fish. The state hasn't determined what that amount is for nitrogen and phosphorus, which means the new rules to protect water quality won't apply, explained Brad Klein, attorney with the Environmental Law & Policy Center.
"They're not toxic for fish, but they cause algal blooms that can lead to elimination of oxygen in the water," he said.
Martha Clark Mettler, deputy assistant commissioner in IDEM's Office of Water Quality, said the rule wasn't deliberately written to exclude nitrogen and phosphorus, but that IDEM would consider changing the rule.
"I don't think that was our intent, but that's why we're out talking to people because that's what we want to know," she said.
The meeting was intended to inform people about the rule and to answer questions from the about 50 attendees who eagerly fired away.
The rules were revised in response to an independent report that concluded that the unclear rule was at the heart of the controversy that arose when IDEM allowed BP to increase discharges into Lake Michigan 2007.
Several attendees raised concerns about how IDEM would weigh factors like health versus jobs when it determines whether a facility can discharge more pollution.
"All the factors are listed, but it's not clear how they're valued and weighed to make a decision," said Lin Kaatz Chary of Gary. "What kind of community input is there? What data is used to support those decisions? I find that very squishy."
She said community members often feel they express their opinions but that a company's interests weigh more heavily. IDEM's Assistant Commissioner for the Office of Water Quality, Bruno Pigott, said the state tries to balance interests of industry and residents, but that the public has improved opportunities for input under the new rule.
Some asked whether the Grand Calumet River would get additional protection because it flows into Lake Michigan. IDEM officials said that would depend where the pollution was discharged and whether it would make it all the way to Lake Michigan.
IDEM has three more public meetings before it takes public comments and finalizes the rule. Indiana's 11-member Water Pollution Control Board still has to approve the rule as does the U.S. Environmental Protection Agency.
Indiana’s recent efforts to revamp its clean water rules are welcome. But they apparently fall short of what environmental advocates want and what Hoosiers should demand.For more information, here is IDEM's antidegradation page.In 2007, state regulators nearly ignited a civil war with Illinois by imprudently granting the BP refinery on Lake Michigan the go-ahead to increase the pollution it discharges dangerously close to where Chicago residents get their drinking water. After prolonged public outrage, plenty of bad press and an independent study from an Indiana University professor showing that state rules governing water pollution permits are flawed, the Indiana Department of Environmental Management decided to change the rules.
The proposed rules define under what circumstances a business can increase the pollution it discharges into Indiana lakes, rivers and streams.
IDEM is conducting a series of meetings about the proposed changes. But late notice about the meetings may keep people from attending. The first meeting was convened in Portage on Wednesday; the news release announcing the meetings did not appear on the department’s Web site until Tuesday.
The closest meeting for Fort Wayne residents will be on Tuesday in Garrett. A third meeting will be in Seymour. It’s unclear why these locations – away from major population centers – were chosen.
Environmentalists think the state’s revised rules fail to protect Indiana water and will lead to more pollution.
In a news release, Rae Schnapp, water policy director for the Hoosier Environmental Council, said: “Indiana has ignored this federal requirement for years, and is now proposing to implement a rule fraught with loopholes.
“Environmentalists have submitted comments, but many important suggestions have been ignored.”
Environmental advocacy groups, including the Hoosier Environmental Council, The Sierra Club’s Hoosier Chapter, and the Alliance for Great Lakes Water Quality, want a good turnout at the meetings because the meetings will give residents an opportunity to learn more about the proposed changes as well as the steps residents can take if they don’t like the state regulator’s proposal.
Posted by Marcia Oddi on August 22, 2009 02:12 PM
Posted to Environment
Ind. Courts - "Priest abuse case hinges on "repressed" memories"
The ILB had this most recent entry Jan. 25th on former Catholic priest Harry Monroe. Now a trial is taking place before Judge David Dryer of Marion Superior Court, Civil 10. Yesterday the Indianapolis Star reporter Robert King wrote in a Star blog:
John Doe RG, as he is known in court papers, doesn't have much room for God in his life these days. It wasn't always so.Today the Star has this brief, unsigned article:As an altar boy at St. Andrew Catholic Church in Indianapolis in the 1970s, he and his family were deeply involved in the church. But John Doe RG lost that somewhere along the way. For a long time he didn't now where. But he says it found out the reason why in 2003, when -- during a session with his therapist -- he began recovering memories about sexual abuse he suffered at the hands of priest Harry Monroe.
Today, in a sterile courtroom in Indianapolis, John Doe RG spent two hours listening to legal arguments about whether abuse that is more than 30-years-old can be addressed in a lawsuit -- long after the normal statute of limitations have expired -- because the victim's memories had been "repressed" until recently.
Today's legal debate focused squarely on this question of whether some trauma victims, such as those sexually victimized by priests, really can lose access to their memories of the abuse for long periods of time, and then recover them later, as John Doe RG says happened to him.
Judge David Dreyer, who is hearing the case, said he will need at least a month to make a decision. But the case can't go forward unless he allows testimony about repressed memory to be heard -- it is the only way John Doe RG can comply with the statute of limitations.
Dreyer asked the lawyers to provide him more information about the relationship between the term "dissociative amnesia," which is listed in the psychiatrist's desk reference, and "repressed memory," which is not.
In the past, Indiana courts have allowed cases based on repressed memories to go forward. But Archdiocese of Indianapolis attorney Jay Mercer argued the concept of "repressed memory" is "psychiatric folklore," in the words of critics he cited. He said many experts believe that memories never really go away, but that trauma victims either choose to forget or they simply haven't been reminded of it. In those and other instances, Mercer argued, that shouldn't justify any leeway when it comes to the statute of limitations.
Attorney Pat Noaker, arguing for John Doe RG, said the terms repressed memory and dissociative amnesia are essentially interchangeable. And he argued that it wasn't necessary for Dreyer to decide the validity of repressed memory testimony because the Indiana Supreme Court had twice deemed it valid.
The lawyer representing a man who claims to have been abused by a priest 33 years ago needs to sort out psychiatric terminology he's banking on as a reason to allow a suit long after the normal statute of limitations expired, Judge David Dreyer said Friday.The plaintiff, named in papers as John Doe RG, is a former altar boy at St. Andrew's Catholic Church. He said memories of his abuse by former priest Harry Monroe first emerged in 2003.
AdvertisementAttorney Pat Noaker contends the Indiana Supreme Court has already decided that old cases can go forward when brought after a victim recovers a long "repressed memory" of abuse.
But Jay Mercer, the attorney for the Archdiocese of Indianapolis, said there is debate among experts about the scientific validity of repressed memories.
Noaker said the term "dissociative amnesia," which appears in the psychiatrist's desk reference, is essentially the same as "repressed memory," which does not. Mercer argues they are different.
The issue is important to Dreyer, who said acceptance in the desk reference would be one simple way of deciding the credibility of the science and whether to allow testimony.
Dreyer gave both sides three weeks to present written arguments on the point. He expects to decide within a month or so whether the case can go to trial.
Posted by Marcia Oddi on August 22, 2009 01:58 PM
Posted to Indiana Courts
Ind. Decisions - More on: "Indiana court lets sex offender park ban stand"
Updating yesterday's ILB entry, Josh Duke has this report in today's Indianapolis Star. Some quotes:
An Indiana Supreme Court decision allowing Plainfield to bar sex offenders from town parks may clear the way for other communities to enact similar laws.Matt Thacker's report in the Jeffersonville News & Tribune today is headed "Dowdell attorney believes Supreme Court decision leaves ‘inconsistencies’." Here is the story:The court refused by a 4-1 vote the American Civil Liberties Union's request to hear its case against the Hendricks County town, filed on behalf of a man from Marion County. The decision let stand without comment a state Court of Appeals ruling last September supporting Plainfield's ordinance. * * *
The ACLU appealed the Indiana Court of Appeals ruling on behalf of the Marion County man hoping to clarify the court's stand on such local ordinances.
The Marion County man began pursuing the lawsuit against Plainfield in 2005 after Plainfield police told him not to return to the town's recreation center. He had visited there with his young son.
The man was allowed to remain anonymous by the court system throughout the lawsuit. His name and criminal history are on the public registry of sex offenders. He has completed a prison term and probation.
ACLU attorney Ken Falk couldn't be reached for comment Friday but previously said the ACLU objected because it "retroactively punishes citizens who have paid for their crimes and have a right to go to a public park."
After Thursday's Supreme Court decision not to hear the case, Falk told the Associated Press the group might now drop a lawsuit over a similar ordinance in Greenwood.
Greenwood City Attorney Shawna Koons, who drafted the city's ordinance, said she would have preferred the Supreme Court rule on the case against Plainfield. Without that ruling, the issue remains open in Indiana to decisions on a case-by-case basis, she said.
The Indiana Supreme Court’s decision Friday to not overturn an ordinance banning registered sex offenders from parks in Plainfield could affect Jeffersonville’s ordinance.Here is a list of ILB entries mentioning the Dowell decision.In Jeffersonville’s case, Eric Dowdell’s petitions to watch his son play baseball in Jeffersonville parks were denied. The Indiana Court of Appeals ruled that Dowdell should be allowed in the parks because the city’s ordinance was passed after Dowdell was charged, convicted and served his sentence for a sex offense. He also was no longer on the sex-offender registry.
Larry Wilder, the attorney representing the city council in the Dowdell case, said he had expected the Supreme Court would rule on Jeffersonville’s case at the same time as the Plainfield case.
The Supreme Court has not yet made a decision whether to hear Jeffersonville’s case.
Wilder was clearly stunned when informed of the Supreme Court’s decision on Plainfield, repeatedly saying, “Wow.” The court declined to hear the case by a 4-1 vote, letting stand without comment a state Court of Appeals ruling upholding the 2002 ordinance.
“It seems at this point that there are two inconsistent decisions in the Indiana Court of Appeals,” Wilder said.
The Court of Appeals had decided that Plainfield’s ordinance — which bans convicted sex offenders from parks for life — is not unconstitutional. Jeffersonville’s ordinance allows offenders to petition to be allowed back in the parks once they no longer have to register.
While he hopes the Supreme Court will reverse the Court of Appeals decision in the Dowdell case, Wilder added that the Supreme Court can choose to leave two inconsistencies in Court of Appeals decisions and let the law evolve.
If the Supreme Court decides not to hear the Jeffersonville case, the city would have no other options to appeal the Dowdell decision, Wilder said.
Posted by Marcia Oddi on August 22, 2009 12:55 PM
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists
Friday, August 21, 2009
Ind. Decisions - "Indiana court lets sex offender park ban stand"
Although the ILB has yet to receive, and thus post, a Clerk's Transfer List from last week or this week, this story was posted this afternoon from the AP:
The Indiana Supreme Court has declined to overturn an ordinance banning registered sex offenders from parks in the Indianapolis suburb of Plainfield.For background, see this ILB entry from August 19th.The court declined to hear the case by a 4-1 vote, letting stand without comment a state Court of Appeals ruling upholding the 2002 ordinance.
The American Civil Liberties Union of Indiana had sought a ruling to clarify the court's stand on such local ordinances. The court has generally declined to strike down laws restricting the activities of sex offenders but has found constitutional problems with enforcement in certain cases.
Plainfield town attorney Mel Daniel said officials were pleased with the decision released on Thursday.
ACLU attorney Ken Falk said the group might now drop a lawsuit over a similar ordinance in Greenwood.
Posted by Marcia Oddi on August 21, 2009 03:49 PM
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists
Ind. Decisions - More on: Brief filed in response to AG's July 27th petition for rehearing in David Camm case
Updating this ILB entry from August 18th, Matt Thacker of the Jeffersonville News & Tribune reports today in a lengthy story that begins:
The Indiana Supreme Court on Wednesday requested to have the entire David Camm murder case file sent to them.That came after Camm’s defense team filed its response Friday to Attorney General Greg Zoeller’s and Floyd County Prosecutor Keith Henderson’s request for a rehearing before the Supreme Court.
Henderson said the Supreme Court could have rejected the state’s argument without looking at the case file. He is hopeful the request means the justices will review transcripts of the trial.
“Definitely, it was my intention through the petition for reconsideration for the four justices [who ruled in favor of overturning Camm’s murder conviction] to review the record of the trial, because I do think they overlooked some key portions of it,” Henderson said. “I think the Supreme Court will give such an important case a thorough review.”
Katharine Liell, Camm’s attorney, said the Supreme Court requesting the case file is standard procedure, and she believes the court will deny the state’s request for a new hearing.
“The state, in its petition for rehearing, raised nothing new,” Liell said. “These are arguments they already made and lost on.”
Liell said the Indiana Supreme Court generally will only reconsider a ruling if the state can show that it misapplied U.S. Supreme Court precedent.
“A rehearing is not appropriate just to regurgitate what has already been argued,” she said.
Posted by Marcia Oddi on August 21, 2009 01:43 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Courts - Observations on: Verdict in road-rage shooting trial in Clark County
This ILB entry from earlier today included this quote from the LCJ story:
At Thursday's sentencing hearing, [Judge] Moore told the packed courtroom that while preparing for deciding on a sentence, he had his staff drive the stretch of 10th Street where the problems had escalated and count the number of driveways and other possible escape routes that either motorist could have taken.Given my recent ILB entries on Ind. Code of Judicial Conduct Rule 2.9(C), including this one from Aug. 20, I asked IU Law Professor Joel Schumm for his observations. He responded:There were 48 such opportunities, the judge said. And Moore said he went to see the gas station next to the location where the shooting took place. He said Parrish had “two options to pull into that driveway before she chose to pull that gun.”
Although the evidence rules don't apply at sentencing, Evid. R. 101(c)(2), the judicial canons or code of conduct do. When judges gather evidence on their own, partiality concerns can arise. What is the defense lawyer supposed to do? Object and ask for a continuance to go count the driveways or question the court employee who gathered the evidence?[More] Just a few minutes after writing the above, Matt Thacker's afternoon story in the Jeffersonville News and Tribune was posted. Some quotes:Hulfachor v. State, 813 N.E.2d 1204, 1207-08 (Ind. Ct. App. 2004): "Nevertheless, we strongly caution trial courts against looking outside the record for evidence in a sentencing hearing. Obviously, such a practice deprives a defendant of the opportunity to review the information and refute its accuracy. By not placing the information in the record, the trial court created a risk that sentencing would be based on inaccurate or irrelevant information. Therefore, trial courts should look only to evidence properly placed in the record when making sentencing determinations."
[Judge] Moore had harsh words for Mosier and Parrish, saying that the two appeared to be in competition as they drove down 10th Street the day of the shooting.“Both of these adults on the roadway that day were engaged in conduct that was not that of mature adults,” Moore said.
He said he drove down 10th Street after the jury trial concluded and counted 48 places either Mosier or Parrish could have exited to avoid the confrontation, and he even asked a staff member to drive down 10th Street and check his counting.
Moore said he also sat in the parking lot at Thorntons twice in the past month watching traffic in order to visualize what might have happened that day.
He found it “troubling” that Parrish never drove into the Thorntons parking lot and said Parrish “put lives at stake and endangered people on the roadway that day, maybe even people in the next lane.”
[Brian Butler, Parrish’s attorney] said he had never heard of a judge going out to the scene of a crime, but was not aware of any rule prohibiting judges from doing that.
Posted by Marcia Oddi on August 21, 2009 12:43 PM
Posted to Ind. Trial Ct. Decisions
Ind. Decisions - Court of Appeals issues 8 today (and 10 NFP)
For publication opinions today (8):
In Christine Dugan v. Mittal Steel USA, Inc., and Jay Komorowski, a 13-page opinion, Judge Crone writes:
Christine Dugan appeals the trial court's grant of summary judgment in favor of Mittal Steel USA, Inc. (“Mittal”), and Mittal employee Jay Komorowski (collectively, “Appellees”) on her defamation claim. We affirm in part, reverse in part, and remand for further proceedings. * * *In Boyd Vandenberg, Deceased v. Snedegar Construction, Inc. , a 17-page opinion, Judge Crone writes:Dugan first contends that Komorowski's statements are defamatory per se. We agree. On their face, the statements impute criminal conduct and misconduct in Dugan's occupation. Dugan also contends that the statements are false, in that the arbitrator determined that she did not engage in such wrongdoing. Again, we agree.
In response, Appellees invoke the doctrine of qualified privilege, which “protects communications made in good faith on any subject matter in which the party making the communication has an interest or a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty.” * * *
Assuming for argument's sake that Komorowski made the statement in good faith and that he and his coworkers shared a common interest in job security, we fail to see how the statement was limited to the purpose of upholding this interest, in that Komorowski admitted that he did not know whether the investigation was over or whether more employees would be terminated. In other words, we fail to see how Komorowski's statement regarding Dugan's alleged theft could even arguably serve the purpose of quelling any rumors and fears regarding McClain's and Gorroll's job security. Likewise, we cannot conclude that the meeting was the proper occasion for making the statement or that the statement was made to appropriate parties. Cf. Schrader, 639 N.E.2d at 262 (listing elements of qualified privilege defense). Therefore, we conclude that Appellees failed to establish as a matter of law that the statement is protected by the common interest privilege. Consequently, we reverse the trial court's grant of summary judgment as to paragraph 7 of Dugan's complaint and remand for further proceedings on that portion of her definition claim.
Boyd Vandenberg's wife, Jane Vandenberg, appeals the order of the Full Worker's Compensation Board (“the Board”), affirming the single hearing officer's decision denying her claim for worker's compensation benefits following Boyd's suicide. Jane asserts that the Board erroneously concluded that Snedegar Construction, Inc. (“the Company”), carried its burden to prove that Boyd's death was caused by a knowingly self-inflicted injury and therefore she is not entitled to benefits. We affirm. * * *In Plaza Group Properties, LLC, Robert W. Allen, et al. v. Spencer County Plan Commission, et al. , a 17-page opinion, Judge Bailey writes:We conclude that the evidence and the reasonable inferences drawn therefrom support the Board's decision that the Company carried its burden to prove that Boyd's death was caused by his knowingly self-inflicted injury. Accordingly, we affirm the Board's decision denying Jane's claim for worker's compensation benefits.
The Spencer County Plan Commission and the Spencer County Board of Commissioners (collectively “Spencer County”) filed an information to show cause, alleging that Plaza Group Properties, LLC, Robert W. Allen, and Fuel in Dale, L.L.C. (collectively “Defendants”) were violating an order issued by the Spencer Circuit Court. The trial court found the Defendants to be in contempt, ordered them to pay $340,000 in fines, in addition to attorney and expert-witness fees, and prohibited the operation of the Defendants' business for at least one year and until they paid in full the fines and fees ordered therein. * * *D.L.D. v. L.D. - "D.L.D. (“Father”) appeals the denial of his motion to correct error, which challenged the denial of his Indiana Trial Rule 60(B)(6) motion to set aside a dissolution decree, custody order, and property settlement obtained by L.D. (“Mother”). We affirm."The Defendants were precluded from arguing that Spencer County Ordinance 2005-11 was unconstitutional and that two of the Defendants did not operate the business. Furthermore, the one-year closure of the Defendants' bookstore did not violate their First Amendment rights.
The fine was not punitive. However, of the forty-six contemptuous acts found to have occurred, the record does not support the trial court's finding in three of them. Accordingly, we remand with instructions to reduce the fine from $340,000 to $317,500. We deny the county's request for appellate attorney fees. Affirmed in part, reversed in part, and remanded.
Note: As per this ILB entry from Aug. 14, quoted here, this is the now at least the fourth such opinion:In William Price v. State of Indiana , an 8-page opinion, Chief Judge Baker writes:"ILB comment (from 8/14/09): 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.)"
Q- Might this or a similar informal policy be adopted to shield the identities of the parties with respect to other types of decisions?
Appellant-defendant William Price appeals his conviction for Cruelty to an Animal, a class A misdemeanor. Specifically, Price argues that the statute is unconstitutionally vague and that the evidence was insufficient to convict him. Finding that the statute is not unconstitutionally vague as applied to Price and that the evidence was sufficient, we affirm. * * *In Isaiah Tooley v. State of Indiana , an 8-page opinion, CJ Baker writes:Price argues that Indiana Code section 35-46-3-12 is unconstitutionally vague. As an initial matter, the State maintains that Price has waived this argument because he did not move to dismiss the information in the trial court. Price counters that the constitutionality of a statute may be raised at any stage of the proceedings.
Our Supreme Court has held that “[g]enerally, the failure to file a proper motion to dismiss raising the Constitutional challenge waives the issue on appeal.” Payne v. State, 484 N.E.2d 16, 18 (Ind. 1985). Nevertheless, both our Supreme Court and this court have considered challenges to the constitutionality of statutes even though the defendant had failed to file a motion to dismiss. See Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992) (concluding that “the constitutionality of a statute may be raised at any stage of the proceeding including raising the issue sua sponte by this Court”); Vaughn v. State, 782 N.E.2d 417, 420 (Ind. Ct. App. 2003) (deciding to address the defendant's challenge to the constitutionality of a statute even though the defendant failed to file a motion to dismiss and the State argued waiver). Moreover, even in cases where waiver has been found, the court proceeded to address the merits of the defendant's constitutional challenge. See Rhinehardt v. State, 477 N.E.2d 89, 93 (Ind. 1985) (concluding that “[e]ven assuming appellant had preserved this claim, it would not constitute reversible error”); Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008) (stating that “even if we were to consider [the defendant's] argument upon the merits, he would not prevail because his challenge to the statute as unconstitutionally vague fails”). Thus, we will address the merits of Price's argument.[2]
_____________________
[2] We caution that our decision to reach the merits is not an invitation to neglect to file a motion to dismiss and then argue for the first time on appeal that the statute is unconstitutional. Indeed, this court has refused to address the merits after concluding that the defendant waived his constitutional challenge. See Adams v. State, 804 N.E.2d 1169, 1172 (Ind. Ct. App. 2004) (holding that the defendant waived his challenge to the constitutionality of a statute because he failed to file a motion to dismiss in the trial court); Wiggins v. State, 727 N.E.2d 1, 5 (Ind. Ct. App. 2000) (holding that the defendant waived his argument that the statute was unconstitutionally vague even though he had filed a motion to dismiss because the motion only alleged that the statute violated the prohibition against ex post facto laws).
Appellant-defendant Isaiah Tooley appeals his conviction for Cruelty to an Animal, a class A misdemeanor. Specifically, Tooley argues that the statute is unconstitutionally vague and that there was insufficient evidence to convict him. Finding that the statute is not unconstitutionally vague on its face or as applied to Tooley and that the evidence was sufficient, we affirm. [ILB - The same discussion re vagueness as in the Price opinion follows, with the same footnote text.]Kenneth L. Collins v. State of Indiana is a 23-page, 2-1 opinion. Judge Bradford writes:
Appellant/Defendant Kenneth Collins appeals from the trial court's alteration of the terms of his probation, which was originally imposed following his February of 2000 guilty plea to Class B felony Rape. We affirm in part and remand in part. * * *In Roger L. Brown v. State of Indiana , a 10-page opinion, Judge Crone writes:We conclude that the imposition of the Special Stipulations did not constitute an abuse of discretion, did not violate due process, and was not an ex post facto law. We further conclude, however, that Special Stipulations 6, 7, 10, 11, and 15 were impermissibly vague, and we therefore remand this cause to the trial court for clarification of those terms. * * *
BROWN, J., concurs.
CRONE, J., concurring in part and dissenting in part. I concur with the majority's opinion in all respects except for its determination that Stipulations 16 and 17 are not unconstitutionally vague. Pursuant to McVey, 863 N.E.2d 434, and Fitzgerald, 805 N.E.2d 857, I would remand to the trial court to reconsider and clarify these conditions.
Roger L. Brown challenges his convictions for class D felony operating a vehicle while intoxicated resulting in bodily injury. We affirm.NFP civil opinions today (3):Issues: I. Whether the trial court abused its discretion by admitting evidence of Brown‟s horizontal gaze nystagmus test; II. Whether the trial court abused its discretion in admitting evidence of Brown‟s blood draw; and III. Whether the evidence is sufficient to sustain the convictions.
George Mimms v. Hidden Bay Homeowners Association, Inc. (NFP)
Barbara MacMillian v. Jeffrey S. MacMillian (NFP) - "Barbara MacMillan appeals an Order entered on December 15, 2008, ordering Barbara to pay half of any tax liability based upon the sale of certain investment accounts, and also granting Jeffrey MacMillan a credit of $15,226.00 which represents 40% of the mortgage and real estate taxes paid by Jeffrey from the filing date until the date of the dissolution trial. Barbara raises three issues, which we revise and restate as: I. Whether the trial court erred in granting Jeffrey a $15,226.00 credit which was not granted to Jeffrey in the original dissolution decree, when the original dissolution decree was not appealed; II. Whether the trial court erred in ordering Barbara to pay one-half of the tax liabilities concerning the sale of certain investment accounts; and III. Whether this court should remand the case to the trial court for its consideration of awarding appellate attorney fees and expenses in favor of Barbara. We reverse and remand."
Brown Flying School, Inc. and Steve Brown v. Terre Haute International Airport Authority, et al. (NFP) - Lack of standing.
NFP criminal opinions today (7):
Justin Parsley v. State of Indiana (NFP)
Larry D. Grissett v. State of Indiana (NFP)
James Bryant v. State of Indiana (NFP)
Timothy E. Dennison v. State of Indiana (NFP)
Clyde Piggie v. State of Indiana (NFP)
Cordero Love v. State of Indiana (NFP)
Randy L. Reedy v. State of Indiana (NFP)
Posted by Marcia Oddi on August 21, 2009 11:49 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts -Still more on: Verdict in road-rage shooting trial in Clark County
Updating this ILB entry from August 1st, Harold J. Adams of the Louisville Courier Journal reports today in a story that begins:
A Clark County judge sentenced a Jeffersonville woman Thursday to 10 years for shooting a motorcyclist following a rolling confrontation of more than a mile along a city street.People can't “decide that they are going to settle a traffic dispute with bullets and guns,” Clark Circuit Judge Dan Moore told Yalanda Parrish, who will be allowed to serve the final three years of her sentence on work release. Moore could have sentenced her to as many as 20 years.
The judge also ordered Parrish to pay $1,881 in restitution to the man she shot, Wesley Mosier, for medical expenses. * * *
At Thursday's sentencing hearing, Moore told the packed courtroom that while preparing for deciding on a sentence, he had his staff drive the stretch of 10th Street where the problems had escalated and count the number of driveways and other possible escape routes that either motorist could have taken.
There were 48 such opportunities, the judge said. And Moore said he went to see the gas station next to the location where the shooting took place. He said Parrish had “two options to pull into that driveway before she chose to pull that gun.”
Posted by Marcia Oddi on August 21, 2009 11:23 AM
Posted to Ind. Trial Ct. Decisions
Ind. Courts - "Appeals court upholds child molester ruling"; complaints aganst judge
The NFP August 12th COA decision in Steven W. Everling v. State of Indiana is featured in this Aug. 20th story by Justin Schneider in the Anderson Herald Bulletin. Some quotes:
The Indiana Court of Appeals has dismissed the appeal of a convicted child molester who claims he did not receive a fair trial in a Madison County court.An earlier story by a different Herald Bulletin reporter, assistant managing editor Stephen Dick, dated April 29th and still available here, is headlined "State investigating Judge Spencer: Allegations stem from Ward murder trial."In a ruling filed Aug. 13, Judge Ezra Friedlander denied a claim by former Elwood resident Steven Everling that he was denied a fair trial, failed to receive effective counsel and that the local court abused its discretion in sentencing. * * *
Zaki Ali, Everling’s defense attorney, tried to stop the trial before it even began.
He filed a motion for change of judge and a complaint against Madison County Circuit Court Judge Fredrick Spencer with the Indiana Commission on Judicial Qualifications. The change of judge motion was denied. The day the trial was set to begin, Everling asked for a stay of proceedings and Ali filed for an emergency stay of proceedings; both were denied.
Ali asked Spencer to recuse himself in four other criminal cases after Spencer purportedly used an expletive in describing Christopher J. Mier, one of Ali’s clients. Spencer also allegedly engaged in plea negotiations with Mier at the hearing. Ali could not be reached for comment, but has said previously that none of his clients can receive a fair trial from Spencer, due to personal bias.
Friedlander, on behalf of the Indiana Court of Appeals, said Spencer never acted unfairly during the trial.
“The trial court’s actions and demeanor did not cross over the bounds of partiality,” he wrote. “That a complaint was filed against the trial judge by Everling’s trial counsel in an unrelated case does not establish that the trial court was biased against Everling.” * * *
The Court of Appeals opinion also upheld Everling’s sentence of 110 years.
“The trial court did not abuse its discretion in articulating the aggravating and mitigating factors that underlie the sentence imposed,” Friedlander wrote. “Nevertheless, because the record contains inconsistent statements as to the total sentence imposed, we remand to the trial court for clarification.”
Spencer did, however, leave Everling’s sentence unclear. His oral ruling called for two 55-year sentences to be served concurrently, while his written sentence was for the two sentences to be served consecutively, for a total of 110 years
Spencer said he intended to give Everling 110 years and plans to schedule a hearing to correct the error. * * *
In a separate case, Spencer faces a judicial misconduct complaint involving his actions in a murder trial.
Defense attorney Jeff Lockwood filed a complaint with the Judicial Qualifications Commission in August 2008, claiming that Spencer said he had already decided the sentence for Kathy Jo Ward, who was convicted of manslaughter for the killing of her husband, John Ward.
[ILB - access the story itself for more information on the alleged basis of the complaint]
Spencer said Wednesday that he was aware of the status of that complaint with the Judicial Qualifications Commission, but had no comment.
The Commission considers complaints against judges confidential unless the complaint results in public discipline or charges against the judge.
Posted by Marcia Oddi on August 21, 2009 10:53 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - "LaVille school construction postponed again: Tax judge needs more evidence from DLGF before making final determination"
The Tax Court's August 20th NFP opinion in the case of George M. Moffett v. Department of Local Government Finance (ILB summary here) is the subject of a story today in the South Bend Tribune, reported by Virginia Ransbottom, that begins:
LAKEVILLE — Construction on LaVille schools will remain on hold after an Indiana Tax Court opinion was filed, asking for more evidence.Judge Thomas Fisher's opinion, filed Wednesday, says the Department of Local Government and Finance failed to support its approvals of a nearly $20 million bond for school construction.
The case has been remanded to the DLGF, which is required to provide evidence supporting its decision.
Posted by Marcia Oddi on August 21, 2009 10:45 AM
Posted to Ind. Tax Ct. Decisions
Ind. Decisions - Another transfer granted this week, making three in total
Supplementing this ILB entry from yesterday, the ILB has received word that the following case was granted transfer Aug. 21st:
- Foundations of East Chicago, Inc. v. City of East Chicago and Attorney General of Indiana -- 49A02-0711-CV-987.
The ILB entry from April 28th began: "Well, it could have been a pretty spectacular ruling, coming on the next to last day of the session, and addressing the issue of the constitutionality of non-related legislation inserted into the budget bill. But it was not to be, although the Court of Appeals issued its 2-1 decision today in the case of Foundations of East Chicago v. City of East Chicago and State of Indiana, with three separate opinions."
See also this ILB entry from June 29th, headed "Legal filings indicate Office of Attorney General and the Indiana Gaming Commission to be somewhat at odds."
Posted by Marcia Oddi on August 21, 2009 09:14 AM
Posted to Indiana Transfer Lists
Thursday, August 20, 2009
Ind. Courts - Channel 6 finds public defender appointed upon request, with no effort at determining financial need
Indy Channel 6 News' Jack Rinehart had this report last evening. Here are some quotes:
INDIANAPOLIS -- Some within the Marion County legal justice system are questioning why a man who lives in an exclusive neighborhood is being represented by a public defender.There was a follow-up report on Channel 6 this evening, focusing on what kind of investigation, or questioning, judges should perform prior to appointing a public defender, but it does not seem to be available online yet.Cary Osborne is set to go to trial next week on a misdemeanor charge of resisting law enforcement, 6News' Jack Rinehart reported.
At his initial hearing in April, Osborne asked for a public defender, citing a medical condition and time spent under the care of doctors, court records show. * * *
The judge said he would assign a public defender to Osborne's case, but at no point asked if Osborne could afford his own attorney. * * *
Marion County Chief Public Defender Robert Hill said that the county lacks the money and resources to verify every person's financial need.
"It does create a situation where someone looking at this might have questions," he said. "If someone isn't entitled to a public defender, resources are tight, my attorneys are overworked, the system is overburdened. If someone isn't entitled, they shouldn't get a public defender. " * * *
Besides owning the home that Osborne is living in, his mother owns a $1 million mansion in the high-end stretch of Meridian Street north of downtown Indianapolis.
The ILB has written about this issue before, in two entries headed "If you cannot afford an attorney, one will be appointed for you." In the first, from Sept. 26, 2008, I wrote near the end:
I'm told that in at least some Indiana counties little effort is made to determine eligibility before a public defender is assigned. The ILB would be interested in comments from readers on this point.A follow-up, from Oct. 1, 2008, dealt with appointment of counsel for alleged delinquent children.
Posted by Marcia Oddi on August 20, 2009 06:11 PM
Posted to Indiana Courts
Ind. Gov't. - Public Access Counselor moves on, to Indiana Department of Education; no successor named
Robert Annis of the Indianapolis Star reports this afternoon:
Indiana¹s top public records watchdog is leaving her job to take a education post.Public Access Counselor Heather Willis Neal, who Gov. Mitch Daniels appointed to a four-year term in 2007, accepted a new role at the Indiana Department of Education.
The Indiana University Law School graduate previously served as executive director of the School Choice Indiana nonprofit from 2005-07. * * *
Neal¹s last official day as public access counselor is Friday, but because there is no successor lined up, she'll be pulling double duty for a while, she said.
Posted by Marcia Oddi on August 20, 2009 05:07 PM
Posted to Indiana Government
Ind. Decisions - Another 7th Circuit post-Heller gun ruling
The decision is Justice v. Town of Cicero (ND Ill), written by Judge Wood (joined by Judges Tinder and Bauer), issued August 14th. Here, beginning on p. 9, is the discussion dealing with the 2nd amendment:
We now turn to Justice’s Second Amendment claim. The district court found that the Town’s ordinance requiring the registration of all firearms did not violate Justice’s constitutional rights because the Second Amendment does not regulate the activities of a state or its subdivisions, relying on this court’s decision in Quilici v. Village of Morton Grove, 695 F.2d 261, 269-71 (7th Cir. 1982). It noted that the Illinois Constitution subjects the right to bear arms to the police power, and that Illinois permits municipalities to regulate the possession of firearms to protect the public health, safety, and welfare. See Sklar v. Byrne, 727 F.2d 633, 637 (7th Cir. 1984).Justice had sued the Town for confiscating his guns, citing him for possession of an unregistered firearm, and shutting down his business for one week. From near the beginning of the opinion:Since the date of the district court’s opinion (October 10, 2007), there has been some water under the Second Amendment bridge. First, the Supreme Court decided District of Columbia v. Heller, 128 S. Ct. 2783 (2008), which struck down an ordinance of the District of Columbia that flatly prohibited the possession of handguns. Second, this court decided National Rifle Ass’n of America v. City of Chicago, 567 F.3d 856 (7th Cir. 2009), in which we concluded that the Second Amendment (under current Supreme Court law) is not one of the parts of the Bill of Rights that has been incorporated by the Fourteenth Amendment and thereby made applicable to the states. In NRA, we aligned ourselves with the Second Circuit’s decision in Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009), and expressed disagreement with the Ninth Circuit’s reasoning in Nordyke v. King, 563 F.3d 439 (9th Cir. 2009).
If, as we have held, the Second Amendment does not apply to the states and their subdivisions, then Justice has no case. Even if we are wrong and the Ninth Circuit has proven to be the better predictor of the Supreme Court’s rulings, there is a critical distinction between the D.C. ordinance struck down in Heller and the Cicero ordinance. Cicero has not prohibited gun possession in the town. Instead, it has merely regulated gun possession under § 62-260 of its ordinance. The Town does prohibit the registration of some weapons, but there is no suggestion in the Complaint or the record that Justice’s guns fall within the group that may not be registered. See § 62-261. Nor does Heller purport to invalidate any and every regulation on gun use; to the contrary, the Court in Heller disclaims any such intent:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. . . . Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [FN26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.128 S. Ct. at 2816-17 (citations omitted). Thus, even if we are wrong about incorporation, the Cicero ordinance, which leaves law-abiding citizens free to possess guns, appears to be consistent with the ruling in Heller.
After methodically explaining the problems with each of Justice’s allegations, the district court dismissed the entire complaint [ILB - including the 2nd amendment challenge to the Town’s ordinance requiring registration of firearms] for failure to state a claim under FED. R. CIV. P. 12(b)(6). We agree with the district court and therefore affirm the judgment for the defendants.Thus, both the recent Heller, and this term's Iqbal, are relied upon in this decision.We review an order granting a Rule 12(b)(6) motion to dismiss de novo and affirm if the complaint fails to include sufficient facts “to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
As of yet, there has been little, if any, press on this opinion. Dovid Kopel of The Volokh Conspiracy discusses the opinion in this entry this afternoon.
For background, see the prior ILB entries citing NRA v. City of Chicago.
Posted by Marcia Oddi on August 20, 2009 03:38 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Two transfers granted Aug. 19th
Although we still have not seen the transfer list for the week ending Aug. 14, the ILB has just received information on some new transfers, granted Aug. 19, which presumably will be included on the Clerk's Transfer List to be dated Aug. 21st.
- Traveler Indemnity Co v. Jarrells -- 29A02-0807-CV-669. This was a 2-1, three-opinion worker's compensation opinion issued May 21. From the majority opinion: "Travelers argues that the trial court erred in denying its motion for summary judgment because the statutory lien entitled it to reimbursement of worker's compensation payments made on behalf of Jarrells. We agree." ILB summary here - 3rd case.
- Walker Whatley v. State -- 49A02-0809-CR-808. Whatley was convicted of possession of cocaine in a quantity in excess of three grams within one- thousand feet of a “youth program center.” In this opinion, also dated May 21st, the Court concludes:
In light of the precedent herein set forth and after careful consideration and deliberation, we hold that the Robinson Community Church was and remains a church and is not converted into a youth program center by reason of its faith-based activities for young people. Bi-weekly Girl Scout troop meetings and mentoring of children by adult members of the congregation were accessory or incidental to the existence and identity as a church. The church was not a youth program center. It remained a church notwithstanding the incidental activities not solely religious in nature.
See ILB summary here, 5th case.
Posted by Marcia Oddi on August 20, 2009 02:11 PM
Posted to Indiana Transfer Lists
Ind. Decisions - Tax Court issues one NFP today
In George M. Moffett v. Department of Local Government Finance (NFP), a 7-page opinion, Judge Fisher writes:
On September 10, 2008, the Department of Local Government Finance (DLGF) issued a final determination granting modified approval of the proposed lease rental agreement between the Union-North United School Corporation (the School Corporation) and the Union-North United School Building Corporation (the Building Corporation). George M. Moffett (Moffett) challenges that final determination. * * *What happened here? The Court writes:The Court therefore REMANDS the case with instructions for the DLGF to enter specific findings of fact upon which its final determination is based and upon which judicial review may then be effectively facilitated.
[I]t is imperative that the DLGF provide written findings of fact in support of its final determination, as those findings enable the Court to intelligently review the final determination without speculating as to the DLGF's rationale. See Jackson v. Cigna/Ford Elec. and Refrigeration Corp., 677 N.E.2d 1098, 1102 (Ind. Ct. App. 1997) (stating general rule that, in all cases, administrative agencies must set out written findings of fact so that on judicial review, courts do not have to speculate as to agency's reasoning) (citations omitted).Here, the DLGF's final determination fails to meet this standard. Indeed, the final determination offers no findings of fact, no reasoning, no analysis of any kind.
_________
[7] * * * Whether the DLGF considered the factors in Indiana Code § 20-46-7-11 is not the problem. * * * The problem is that it is impossible to discern why the DLGF ruled the way it did, and therefore it is impossible to discern whether its final determination is supported by substantial evidence.[8] 8 On a final note, the DLGF argues that because many of Moffett's claims as to why the DLGF's final determination is erroneous are “conclusory,” “not supported with citations to the record,” or “not supported by cogent argument,” they fail to show that the DLGF committed reversible error. (See Resp't Br. at 4-5, 8-10.) It seems rather disingenuous, however, that the DLGF can complain about the deficiencies of Moffett's claims when those claims arise from its entirely deficient final determination. Accordingly, the Court will deal with Moffett's claims (and the DLGF's responses thereto) after the DLGF enters specific findings of fact in support of its final determination.
Posted by Marcia Oddi on August 20, 2009 11:37 AM
Posted to Ind. Tax Ct. Decisions
Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)
For publication opinions today (2):
In Andre L. LaFlamme v. Carrie Goodwin, an 11-page opinion, Judge Friedlander writes:
Andre Laflamme appeals the trial court's order refusing to set aside a default judgment that modified a California child support order. Laflamme presents two issues for our review, one of which we find dispositive: Did the trial court have personal jurisdiction over Laflamme? We reverse and remand. * * *In In the Matter of: J.W., Indiana Dept. of Child Svcs. v. V.B. and C.W. , a 3-page ruling, Judge Friedlander's opinion reverses the trial court order that the Indiana Department of Child Services pay the guardian ad litem fees:In this case, there are no contacts sufficient to establish personal jurisdiction over Laflamme. Laflamme has never lived in Indiana and the couple's daughter was not conceived in Indiana. Laflamme's only contacts with Indiana include sending “cards, letters and gifts” to his daughter in the past, responding to Goodwin's request that he continue paying child support and assist in paying post-secondary education expenses for the couple's daughter, and paying child support pursuant to the California court's order. We agree with Laflamme that none of these contacts constitute acts of “purposefully avail[ing himself] of the privilege of conducting activities within [Indiana], thus invoking the benefits and protections of [Indiana's] laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958). Laflamme's contacts with Indiana were incidental to Goodwin's decision to move to this state with Amanda and too attenuated to subject him to the jurisdiction of Indiana courts. See Hotmix & Bituminous Equip. Inc. v. Hardrock Equip. Corp., 719 N.E.2d 824 (finding no minimum contacts despite communication through interstate telephone calls and letters that culminated in a business relationship).
We address one other argument made by Goodwin in support of the court's exercise of personal jurisdiction over Laflamme. The fact Laflamme did not contest personal jurisdiction when the Indiana court domesticated the California divorce decree in 1999 does not serve as a valid waiver of his right to now contest the Indiana court's exercise of personal jurisdiction over him for purposes of modifying his child support. In this same vein, choosing not to challenge personal jurisdiction at the time of the domestication order does not render Laflamme's present challenge to the court's exercise of personal jurisdiction untimely. * * *
In short, we conclude the trial court lacked personal jurisdiction over Laflamme under UIFSA. Consequently, the court's default judgment and order modifying Laflamme's child support obligation are void. Therefore, the trial court erred in refusing to set aside the default judgment and dismiss the action. The judgment of the trial court is reversed, and this cause is remanded with instructions that Goodwin's request for modification be dismissed.
The question presented is whether the DCS is obligated to pay the GAL’s fees, or whether, as the DCS contends, that obligation properly belongs to the county – in this case, Hendricks County. Another panel of this court recently addressed precisely this issue. In In re N.S., 908 N.E.2d 1176 (Ind. Ct. App. 2009) we undertook an examination of the relevant statutes, i.e., Ind. Code Ann. § 31-40-3-2 (West, Premise through 2009 Public Laws approved and effective though 4/20/2009), and Ind. Code Ann. § 33-24-6-4 (West, Premise through 2009 Public Laws approved and effective though 4/20/2009). [where we concluded] "Under our current statutory scheme, however, it is clear that the burden of paying for services rendered by GALs or CASAs should be attributed to and paid for by the county." * * *NFP civil opinions today (1):Accordingly, adopting the rationale set out in In re N.S., we conclude that the trial court erred in ordering the DCS to pay the fees associated with J.W.’s GAL.
Judgment reversed.
J.M. v. Indiana Dept. of Child Svcs. (NFP)
NFP criminal opinions today (7):
Richard D. Martin v. State of Indiana (NFP)
Moses Pierce v. State of Indiana (NFP)
Brian Bowen v. State of Indiana (NFP)
Jason R. Barton v. State of Indiana (NFP)
Britt Scott v. State of Indiana (NFP)
Patrick Germany v. State of Indiana (NFP)
Richard Perez v. State of Indiana (NFP)
Posted by Marcia Oddi on August 20, 2009 11:36 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - 4 Indiana opinions today from 7th Circuit
Fincher v. South Bend Housing Authority (ND Ind., Judge Simon)
In Laouini v. CLM Freight (SD Ind., Judge Barker), a 13-page opinion, Judge Flaum writes:
The sole issue on appeal in this employment-discrimination lawsuit is whether the defendant, CLM Freight Lines (“CLM”), met its burden at summary judgment of proving that the plaintiff, Moncef Laouini, did not timely file a charge of discrimination with the EEOC. The agency’s Indianapolis office accepts administrative charges of discrimination by fax, and plaintiff’s counsel insists that he faxed Laouini’s charge during business hours on the final day for timely filing. A transmission record from counsel’s fax machine confirms that he successfully faxed some document to the agency that day, but there is nothing in the agency’s files evidencing receipt of counsel’s fax. The district court concluded that Laouini could not prove that the charge had been timely filed and granted summary judgment for CLM. We vacate the judgment and remand for further proceedings. * * *According to the [district] court, although the fax confirmation shows that something had been faxed from counsel’s office to the EEOC on April 12, there was no evidence that the fax was actually received or that the document that had been faxed was Laouini’s charge. The court found it significant that Laouini’s lawyer could not say with certainty that he personally fed the charge into the fax machine. The court also reasoned that, because there was evidence that faxes received by the EEOC’s Indianapolis office before 4:30 p.m. are deemed filed the same day, and Laouini’s charge was not file-stamped until it arrived in the mail on April 16, the fax was never received. Finally, the court declared that, although the local EEOC office allows filing by fax, EEOC regulations do not expressly approve of this method, and so any lawyer who submits a charge by fax “acts at his or her peril.” * * *
This case, then, turns in part on the evidentiary significance of a fax confirmation generated by the sender’s machine, an issue we have not previously addressed. Although CLM insists that such a confirmation is “no evidence” of receipt, the company does not cite any authority supporting this proposition or acknowledge that most courts to address the issue have concluded otherwise. * * *
Although fax confirmations may not always be conclusive proof of receipt, we believe that in this case—where it was not the plaintiff who had to prove receipt, but the defendant who had to prove the absence of receipt— the fax confirmation creates a factual dispute sufficient to preclude summary judgment. Whether it was plaintiff’s counsel or his assistant who faxed the charge, the fax confirmation independently verifies that a three-page document was sent from counsel’s office to the EEOC before 4:30 p.m. on April 12, the final day for timely filing. As the district court observed, the confirmation itself does not prove the content of the document, but counsel swore in an affidavit that the fax consisted of Laouini’s two-page charge and a cover sheet, and there is no evidence to undermine his representation.[1] And although at summary judgment the plaintiff did not present evidence establishing that confirmation of a successful transmission necessarily means that the document printed out on the other end, a reasonable factfinder could certainly infer as much. It is commonly understood that “success” in this context means that the two fax machines have performed an electronic “handshake” and that the data has been transmitted from one machine to the other. See, e.g., INFORMATION SECURITY MANAGEMENT HANDBOOK 277 (Harold F. Tipton & Micki Krause eds., 6th ed. 2008) (“[O]ne significant advantage the fax has over other forms of data exchange is that the sender immediately knows if the transmission was successful. . . . [A]ll fax machines have the capability to print a fax confirmation sheet after each fax sent. This sheet confirms if the fax has been successfully transmitted . . . .”); How to Understand Faxes, http://www.how-to.com/article/ details/160 (“Once your fax has been delivered, your system . . . will create a page with the end result of the transmission. If the fax was sent successfully, the page will say “Okay.”); How to Get Confirmation of a Sent Fax, http://www.ehow.com/how_2015874_confirm-fax-sent.ht ml (“A confirmation report is a document confirming that your faxes were sent and received.”).
The fax confirmation is thus strong evidence of receipt, and, contrary to the district court’s conclusion, CLM offered no evidence to meet its burden of proving nonreceipt.
_________________
[1] Although CLM has not raised the issue, there is a question whether counsel’s role as a fact witness on this point is problematic. The Southern District of Indiana has adopted the Indiana Rules of Professional Conduct, see S.D. IND. LOC. R. 83.5(g), which prohibit a lawyer from serving as an advocate at a trial in which he is likely to be a necessary witness unless the testimony relates to an uncontested issue, relates to the nature and value of counsel’s legal services, or disqualification of the lawyer would cause substantial hardship to the client, see IND. RULES OF PROF’L CONDUCT R. 3.7. Whether counsel would be a “necessary” witness at trial and whether any of the exceptions would apply are questions for the district court to address.
In Haber v. Biomet, Inc. (SD Ind., Judge McKinney), a 12-page opinion, Judge Wood writes:
We conclude that res judicata bars our consideration of the particular arbitrability issue that Haber asks us to consider in his appeal. At Haber’s urging, the Hamilton Superior Court reached that issue first and resolved it. In addition, the district court’s rationale for dismissing Haber’s complaint on the basis of venue was sound. Therefore, we affirm.
In Coffman v. Indianapolis Fire Dept. (SD Ind., Judge Young), a 16-page opinion, Judge Rovner writes:
Indianapolis firefighter Tonya Coffman sued the Indianapolis Fire Department and several of its employees alleging sex discrimination under Title VII, 42 U.S.C. § 2000e et seq., violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and privacy intrusions amounting to violations of her due process rights under the Fourteenth Amendment, see 42 U.S.C. § 1983. She also brought several state-law claims. Her claims arise from what she alleges were a number of discriminatory driving evaluations and fitness for duty evaluations. The district court dismissed the state-law claims without prejudice and granted the defendants’ motion for summary judgment on all of Coffman’s remaining claims. She appeals, and we affirm.
Posted by Marcia Oddi on August 20, 2009 10:49 AM
Posted to Ind. (7th Cir.) Decisions
Courts - "3rd Circuit Appeal Challenges Judge's Outside Research in Bench Trial"; Where is Indiana on this?
Henry Gottlieb writes today in the New Jersey Law Journal:
A federal appeals court has been asked to limit the right of judges to do their own research in bench trials, lest they be swayed by facts not before them.This May 7th ILB entry linked to a law review article titled "The Curious Appellate Judge: Ethical Limits on Independent Research" (by Elizabeth G. Thornburg of Southern Methodist University) and to Ind. Code of Judicial Conduct Rule 2.9(C), adopted by Indiana's Supreme Court in 2008.U.S. Magistrate Patty Shwartz in Newark, N.J., no-caused a medical malpractice claim after consulting published and unpublished cases -- not cited by the parties -- that dwelled on the type of injury the defendant doctor was accused of inflicting.
A three-judge panel of the 3rd U.S. Circuit Court of Appeals affirmed the verdict, saying the research was for "informational" purposes only and was not the basis for Shwartz's decision.
The plaintiff, seeking en banc review and a new trial, asks: Was Shwartz's inquiry akin to jurors making clandestine visits to an accident scene or doing Internet research in the middle of a trial?
Or was the judge engaged in acceptable, indeed commendable, efforts to inform herself before reaching the right decision, as the defense argues in the case, Araoz v. United States, 08-2248. * * *
The plaintiffs lawyer, Kenneth Berkowitz of Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte in Chatham, N.J., concedes there was enough in the record presented by the parties to support Shwartz's verdict.
But he objects to her examination of 14 published and unpublished cases from other federal and state jurisdictions that were not presented by either side in a case in which there were no legal disputes. The research was solely to glean facts, and that was extraneous information that could have tainted the outcome, Berkowitz argues.
The research exposed the judge to commentary by other judges on the reliability of experts and may have colored her view, Berkowitz argues.
In one of the cases she cited, an unreported state court decision in Ohio, a judge was critical of the expert who Berkowitz used in his case.
"The magistrate judge conducted this research solely to become informed of the extraneous facts, analysis and outcomes in fourteen state and federal cases, not one of which was cited by either party, which cases all involved the very same injury and liability positions as advanced by plaintiff-appellant," Berkowitz says in an Aug. 11 petition.
"Once the magistrate judge ventured outside the record to explore factually similar cases for informational purposes the magistrate judge exceeded the bounds of what she permissibly could do as a facto finder in this non-jury trial," he argues.
In an interview on Tuesday, Berkowitz amplified his assertion that there is a difference between research for guidance on the law and guidance on the facts. "If you are trying to figure out what the federal law is in New Jersey, you look at federal cases and New Jersey state cases," he says. "You would never look to Ohio law in an unpublished decision. There is no legitimate reason for doing it." * * *
Berkowitz's brief says it's true that magistrates, unlike jurors, are exposed to inadmissible material and know how to filter it out. "Such filtering did not happen here," the pleading says. "Instead, the magistrate judge not only improperly sought out the extraneous material she considered it, discussed it and relied upon it." * * *
Defense counsel Allan Urgent, an assistant U.S. Attorney in Newark, declines to comment.
Urgent and Assistant U.S. Attorney Pamela Perron argued in a brief before the three-judge panel that Shwartz did not rely on the 14 cases and that their inclusion in the opinion was innocuous.
Two of them were used to describe terms such as "shoulder dystocia" and the definitions were no different from the ones used by experts in the case, the brief says.
Other cases were cited for the self-evident point that "many malpractice cases turn on competing expert testimony," according to the brief.
"In this case a conscientious, hardworking judge exercised her independent judgment in preparing the trial court's findings of fact and conclusions of law," the defense brief says.
"In innumerable cases resulting in a judgment, trial judges conduct independent research to assure themselves of the current status of law," the brief says. "It is certainly not unusual or improper for a judge to cite factually similar cases to help explain the court's ruling."
"The public expects judges to read the law and to make use of existing case law," the brief says. "Adopting Araoz's speculative argument would create a new appellate issue that could be litigated in almost every case. The Court should reject Araoz's reasoning because the result would discourage trial judges from undertaking legal research as part of the decision-making process."
This July 4th ILB entry quoted from the Indiana Court's May 13th, 2008 opinion in the "MySpace case," A.B. v.State of Indiana, where Justice Dickson wrote at p. 2 [emphasis added]:
As a preliminary matter, we note that the evidence presented at the fact-finding hearing was extremely sparse, uncertain, and equivocal regarding the operation and use of MySpace.com ("MySpace"), which is central to this case. Only two witnesses testified at the fact-finding hear-ing, the school principal and A.B.'s mother. No expert witnesses were called. Neither of the witnesses provided knowledgeable and reliable details about MySpace. The primary source of information about MySpace came from the testimony of the principal, whose "understanding [came] from talking to students and trying to go figure how to go about researching this." Tr. at 25. The principal testified: "I don't get on MySpace." Tr. at 36. The Commentary to Canon 3B of the Indiana Code of Judicial Conduct advises: "A judge must not independently investigate facts in a case and must consider only the evidence presented." Notwithstanding this directive, in order to facilitate understanding of the facts and application of relevant legal principles, this opinion includes information regarding the operation and use of MySpace from identified sources outside the trial record of this case.This year, on May 27th, the Court ruled in the case of Brandon Stanley v. Danny Walker, Justice Dickson included this footnote 3 on p. 4 of his dissent [emphasis added]:
The majority opinion, the concurrence, and this dissent discuss information from resources that are not part of the record of proceedings of this case. Indiana Code of Judicial Conduct Rule 2.9(C) declares that judges "shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed." And Comment [6] explains that this prohibition "extends to information available in all mediums, including electronic." I understand this Rule's reference to the "facts in a matter" to mean the specific facts relating to the incident upon which a lawsuit is based, but that the Rule does not restrain appellate consideration of other general information helpful to the function of appellate courts in statutory interpretation and the advancement determination of common law.Justice Dickson was on a panel on "Drawing the Line Between Internet Research and Impermissible Fact-Hunting" last Oct. 28, His materials included the new rule, A.B. v. State, and two articles:
- Beyond Brandeis: Exploring the uses of non-legal materials in appellate briefs, by Ellen Margolis. 34 U.S.F. L.Rev. 197 (Winter 2000) (Available here)
- Judicial Ethics and the Internet: May judges search the internet in evaluating and deciding a case? by David H. Tennant and Laurie M. Seal. 16 ABA Prof.Law 2 (2005) (Available here)
Posted by Marcia Oddi on August 20, 2009 08:47 AM
Posted to Courts in general | Indiana Courts
Environment - More on "NW Indiana counties stop residents' wind tower ventures"
Updating this ILB entry from August 15th, which reported that "County ordinances aren't prepared to deal with wind towers and spires," Gitte Laasby of the Gary Post Tribune had this follow-up story on Aug. 19th. Some quotes:
The disagreement between Lake County and a Lowell man who put up a wind spire without a permit might be coming to an end.The man intends to apply for a variance of use, which is what the Lake County Plan Commission requires unless he takes down the tower.
Lowell resident Nick Serena maintains that he called the county before putting up his spire and was told no permit was required.
Lake County Plan Commission Director Ned Kovachevich said county officials did inform Serena and distributor George Kontol Jr. in March that a variance was required, but that Serena wasn't happy with the process.
"This is simply a case of someone that does not wish to follow the rules," Kovachevich wrote in an e-mail to the Post-Tribune. "Mr. Serena and Mr. (Kontol) were aware of what was necessary and also were aware of the local requirements. They have brought this unpleasant situation on themselves by deciding not to follow local rules, regulations or procedures."
Kovachevich said the county reminded Serena after the fact that he needed a variance and that he said he'd comply, but never did.
Kovachevich said the county ordinance doesn't mention wind generators. It only lists land uses approved for each zone. Anything not listed requires a variance.
"We don't have a list of uses that are not approved in an agricultural zone. The only thing you can find in the ordinance are uses that are approved in an agricultural zone, or any zone for that matter," Kovachevich said. "If it's not approved, it's not permitted."
Kontol Jr. said knowing a variance is required helps, but that going through a potentially lengthy variance process with public hearings would still dissuade some from putting up wind generators. He said he'd prefer wind towers to be worked into the ordinance like it is in some towns and counties.
"For someone to have to sit there and go through the variance process, you're going to derail it," he said.
He said Crown Point recently issued him a permit that cost $125 to put up a wind spire. In LaPorte County, a permit was $60. In another unincorporated area in the state, spires are regulated like a TV antenna and permits cost $25.
"Lake County is the hardest county to do anything in," he said.
Posted by Marcia Oddi on August 20, 2009 08:36 AM
Posted to Indiana Government
Ind. Law - "Ice Miller wins kudos as women's employer"
Dana Hunsinger reports today in the Indianapolis Star:
When it comes time for that annual mammogram, women at Ice Miller can have it done at work. They can bring in their laundry to be dry-cleaned and breast-feed in private "mommy rooms." And if they have to work late, they don't have to cook dinner. The firm provides it.It's these perks, along with a high percentage of female partners and associates, that landed Indianapolis-headquartered Ice Miller as one of the 50 best law firms in the nation for women, according to Working Mother magazine and Flex-Time Lawyers. It was the only Indiana-based firm to make the list, which was announced last week. * * *
The law firm also ranks No. 1 in the nation among the 180 largest law firms for the highest percentage of female equity partners, those who share in the firm's profit -- 27.3 percent, compared with 16 percent nationwide. And it ranks fifth nationwide for the percentage of female partners.
For the top 50 list, firms were evaluated on their profile, family-friendly benefits and policies, flexibility, leadership, compensation and advancement and retention of women, among other factors.
Ice Miller stood out for multiple reasons, including 12 weeks of paid leave for the birth or adoption of a child, as well as the fact that women who choose to work a flexible or reduced-hour workweek are still eligible for equity partnership, said Jennifer Owens, senior director of editorial research and initiatives at Working Mother. * * *
Other Indianapolis law firms are also making strides when it comes to female associates.
Barnes & Thornburg, for example, has 47 female partners, said Jan Carroll, one of those partners.
"From the time I started, I was given the same opportunities and challenges as my male colleagues, not that I expected otherwise," said Carroll, who joined in 1986.
Posted by Marcia Oddi on August 20, 2009 08:31 AM
Posted to Indiana Law
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
