Tuesday, September 01, 2009
Courts - "D.C. Circuit Begins Mandatory Electronic Filing "
The Blog of Legal Times has posted this report by Mike Scarcella:
The U.S. Court of Appeals for the D.C. Circuit is embracing the digital world, joining a growing number of federal appellate courts that are going beyond electronic copies of opinions to post e-copies of other court papers online.Starting today, the court is requiring lawyers to file all documents electronically, a move that allows 24-hour access to those documents. The court has permitted voluntary electronic filing since June and provided training sessions. * * *
The spokesman for the Administrative Office of the U.S. Courts, Dick Carelli, said two other federal appellate courts set up mandatory e-filing earlier this year—the 9th and 10th circuits. The 4th Circuit has been using mandatory electronic filing since June 2008. The 1st Circuit is expecting to require mandatory electronic filing by January 2010.
Carelli said there’s an expectation that electronic filing will help court employees better manage cases. Many federal district courts around the country already require it.
There is no plan in the D.C. Circuit—not now at least—to post audio of oral argument online.
Posted by Marcia Oddi on September 1, 2009 07:10 PM
Posted to Courts in general
Ind. Decisions - "Lap-Band Surgery to be Covered By Pizza Shop"
The August 6th COA decision in PS2, LLC, D/B/A Boston's Gourmet Pizza v. Adam Childers (ILB summary here) is the subject of this story today on the WSL Channel ("the Weight Loss Surgery Channel"). Some quotes:
Lap-Band surgery is not the type of procedure one might expect to be covered by worker’s compensation. But, an Indiana pizza shop is being forced to pay for a worker’s weight loss surgery in addition to his back surgery after he was injured on the job. The ruling raises the question of whether companies will start to shy away from hiring obese employees.An Indiana pizzeria worker is set to undergo both back surgery and Lap-Band surgery as part of a worker’s compensation arrangement after being injured during work. The surgeries, according to a ruling by the Indiana Court of Appeals, will be paid for by his employers.
The Lap-Band details stem from the fact that 25-year-old Adam Childers weighs 380 pounds. Although technically, he was 40 pounds lighter in March 2007, when he was hit by the freezer door in the kitchen of Boston’s Gourmet Pizza, which caused him to fall down and injure his back. For the record, he also smoked 30 cigarettes a day.
The results of the accident reportedly caused Childers heavy back pain that had spread to his legs and was said to require an operation. However, he was medically advised that this operation wouldn’t be successful unless he lost some weight. According to court documents, in fact, his doctor felt that if he lost enough weight, back surgery might even turn out to be unnecessary.
But it had also been finally determined that Childers had been unable to lose weight on his own during the period he had his accident. And so his weight situation at that time, when added to the incident, were found to create a “single injury” status that has made him eligible for both back surgery and the Lap-Band procedure … at the expense of Boston’s Gourmet Pizza.
Posted by Marcia Oddi on September 1, 2009 07:03 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "In court case about path, a loss looks a lot like a win"
Bob Zaltsberg, editor of the Bloomington Herald-Times, reported this story ($$) on August 31st:
Jeff Sagarin has been fighting City Hall. A court ruling last week says he lost.Depends on your perspective.
Sagarin, a mathematics genius with all the quirkiness that might be associated with such a gift, became incensed and a bit obsessed when he learned in 2007 that an asphalt path the city put on property he now owns may have been built illegally.
The path is also on the property of his neighbor, Shirley Jablonski, who shared his irritation. When notified, the person who owned the home at the time the path was installed, Deborah Campbell, also became miffed.
The women’s anger stemmed from their memories of 1972, when a city official told Mrs. Jablonski and her now-deceased husband, Robert, as well as Mrs. Campbell, that the city had an easement for the property and could build the path without the property owners’ permission. They believed the city official, and the path was built.
When the city informed Sagarin a couple of years ago it planned to widen the path, he went looking for the easement so he would understand his rights.
He couldn’t find it. So he and Mrs. Jablonski went to court.
As they fought on, Sagarin was painted unfavorably by people in the neighborhood who like to use the path. Some people suggested he was heartless because the path was built after two school-aged children were killed on nearby High Street in separate mishaps years apart.
But the facts from news coverage of the events show it is highly suspect the path would have made a difference in either tragedy. Other factors, like a stop sign that wasn’t erected until too late, would have had more direct impact.
Sagarin was an easy target for critics. To strangers, he displays the warmth of a mathematical theorem. But he’s also exceedingly principled and equally persistent.
He fumed over this case because he feels the city took property it didn’t have a right to, and when it learned it had done so wouldn’t admit it. The issue to him has always been abuse of power.
Last week, Judge Steve Galvin ruled against Sagarin, saying he knew the path was there when he bought his home. But that decision is not nearly as important to Sagarin as the ruling Galvin made in favor of his neighbor, Shirley Jablonski, and the harsh words dished out to the city.
“The statements made by the representatives of the City of Bloomington were false and clearly made with the intent to mislead,” Galvin wrote. “... It is clear that the representatives of the City of Bloomington made false and misleading statements to the Jablonskis and to Deborah Campbell concerning the existence of an easement for a path. It is equally clear that they knew these representations to be false.”
Galvin has ordered the city to pay Shirley Jablonski for the land they took from her and her husband, and pay 35 years of interest on the value of the property.
That’s a reasonable conclusion, and vindication for Sagarin. Who cares about a ruling on a piece of paper saying he gets nothing in the case?
He gets the satisfaction of knowing city government didn’t get away with perpetrating a fraud on citizens back in 1972.
Posted by Marcia Oddi on September 1, 2009 06:00 PM
Posted to Ind. Trial Ct. Decisions
Law - "Blast faxes" and Robo-Calls
Stories today:
"Attorney General Greg Zoeller applauds efforts by federal government to ban robo calls" - From the press release:
“There are assurances the federal law won’t preempt our enforcement of stronger, stricter privacy rights for Hoosiers,” Zoeller added."State targets fax-blasting health care insurers" - From the Indianapolis Star, this story by Tom Spalding that begins:The FTC law seeks to prohibit robo calls which promote the sales of goods or services but does not prohibit purely informational calls. An informational call could include an airline notifying a customer of a flight change or a school alerting parents of a snow delay. Politicians, banks, telephone carriers and most charitable organizations are exempt from the federal prohibition on telemarketing calls that deliver prerecorded messages. Also exempt are healthcare professions which are subject to the Health Insurance Portability and Accountability Act (HIPAA).
Indiana law provides added protection by prohibiting the use of autodialer machines to deliver any prerecorded message in all instances when permission has not been provided by the consumer.
The Indiana Department of Insurance has signed an emergency cease-and-desist order to prohibit three organizations from conducting any insurance-related business in the state.Also today, from the Fulton County Daily Report, this story by Greg Land headed "In $2.9 Million 'Blast Fax' Settlement, Plaintiffs Get Coupons and Lawyers Get Cash." It begins:Smart Data Solutions and American Trade Association, LLC, both of Tennessee, and Serve America Assurance, a company supposedly from Bermuda, were told to immediately stop engaging in any kind of insurance business transactions.
Indiana Insurance Commissioner Carol Cutter said the companies have used a method referred to as “fax blasting” to advertise a potentially bogus health insurance plan called “Healthcare America” that has been the subject of complaints filed with the Department of Insurance, the Attorney General’s office, as well as with corresponding agencies in states all over the country.
Business service and supply giant Pitney Bowes has agreed to settle a "blast fax" class action by giving $26 coupons to plaintiffs for each week they received an unwanted fax -- and $950,000 to the lawyers for the class.The $2.9 million settlement ends a case originally filed in Cobb County, Ga., before being transferred to federal court. It began with Pitney Bowes' 2007 purchase of the corporate assets of Laser Life, a Marietta, Ga.-based supplier of toner and other printer products, according to court filings.
Posted by Marcia Oddi on September 1, 2009 12:32 PM
Posted to General Law Related
Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (0):
Philandra A. McMurthy-Young v. State of Indiana (NFP)
Posted by Marcia Oddi on September 1, 2009 12:29 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Four 7th Circuit opinions today involving Indiana cases
U.S. v. Garcia (SD Ind., Judge Tinder) - Judge Kanne writes:
Paula Alvarez, Dustin Decker, and Saul Garcia were part of a widespread drug conspiracy that stretched from Chicago to Indianapolis. On June 20, 2007, a grand jury returned a four-count second superseding indictment charging twenty-one individuals with a variety of crimes, including conspiracy to distribute in excess of 500 grams of methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846. A jury found both Alvarez and Garcia guilty of participating in the conspiracy; Decker pled guilty. We consolidated the defendants’ cases for appeal.U.S. v. Zahursky (ND Ind., Judge Lozano) - Judge Tinder writes:Because the defendants each played a different role in the conspiracy, we will analyze their arguments separately. Alvarez’s arguments represent the bulk of this appeal, and she challenges both her conviction and her sentence; Decker challenges only his sentence; and Garcia’s counsel filed an Anders brief in support of a motion to withdraw. In the end, we find no error below and affirm Alvarez’s conviction and the sentences of both Alvarez and Decker. We also grant Garcia’s counsel’s motion to withdraw, and we dismiss Garcia’s appeal.
A jury convicted Erik D. Zahursky of attempting to coerce or entice a minor under the age of eighteen to engage in sexual activity in violation of 18 U.S.C. § 2422(b). The district court sentenced him to 262 months’ imprisonment and 20 years’ supervised release. Zahursky appeals his conviction and sentence. He challenges the denial of his motion to suppress evidence obtained pursuant to a warrantless search of his vehicle, the admission at trial of certain evidence under Federal Rule of Evidence 404(b), and the application of a two-level enhancement under U.S.S.G. § 2G1.3(b)(2)(B) for unduly influencing a minor. We affirm Zahursky’s conviction, but vacate his sentence and remand for resentencing.U.S. v. Winbush (ND Ind., Judge Simon) - Judge Kanne writes:
James Winbush is a drug dealer, and he was caught red-handed plying his trade. Police watched as Winbush sold crack cocaine to a confidential informant, after which Winbush brandished a handgun and fled his vehicle. A jury convicted Winbush of five federal crimes, and he now challenges both his conviction and his sentence. Despite the commendable and zealous advocacy of his appointed appellate counsel, we find no merit to Winbush’s challenges.U.S. v. Monroe (SD Ind., Judge McKinney) - Judge Ripple writes:
John Q. Monroe pleaded guilty to possession with intent to distribute more than fifty grams of cocaine base. The district court accepted Mr. Monroe’s plea. Applying a departure from the mandatory minimum sentence as permitted by U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553, the court sentenced Mr. Monroe to 168 months’ imprisonment. Mr. Monroe later filed a motion for a reduction in the length of his sentence under 18 U.S.C. § 3582(c)(2). The district court denied the motion, and Mr. Monroe subsequently filed an appeal from that decision. For the reasons set forth in this opinion, we affirm the judgment of the district court.
Posted by Marcia Oddi on September 1, 2009 12:15 PM
Posted to Ind. (7th Cir.) Decisions
Courts - More on: "You don’t see newspapers fighting to open court proceedings the way they used to, and people are starting to notice"
This ILB entry yesterday quoted from an article by Adam Liptak of the NY Times, which centered on:
the case of Eric Presley, a Georgia man convicted of cocaine trafficking. The judge closed the courtroom during jury selection in Mr. Presley’s case, on the theory that it was too small to accommodate both potential jurors and the public. Citing the public’s lack of access to the jury selection, Mr. Presley appealed, and the Supreme Court will soon consider whether to hear his case.The Times linked, via the Cornell Law Supreme Court collection, to Press Enterprise v. Superior Court (478 US 1 - 6/30/1986).Thanks to The Press-Enterprise, a newspaper in Riverside, Calif., the press and the public have nearly an absolute constitutional right to attend jury selection in criminal cases. In the 1980s, the paper fought ferociously to establish that principle, taking two access cases to the Supreme Court.
The NYT also linked to a brief dated July 9, 2009, filed in the Presley case. The brief concludes:
The Georgia Supreme Court has approved the routine closure of voir dire to the public, on the grounds that the trial court has an overriding interest in avoiding contamination of the jurors. No case-specific findings are needed to support such closure. This ruling conflicts with the opinions of numerous federal Courts of Appeal and state appellate courts that do require case-specific findings. This Court should grant the writ of certiorari to resolve this conflict and to protect the fundamental right to a public trial.Today the Louisville Courier Journal has this continually updated story, originally headed "Judge closes Stinson jury selection to media," that includes these quotes:A considerable number of federal and state appellate courts have held that those seeking to exclude the public from our courtrooms must demonstrate that there is no less intrusive means of protecting their asserted interests. But the Georgia Supreme Court has reached the opposite conclusion, joining what has been called the "emerging view" and even the "majority view." This Court should grant the writ of certiorari to end this conflict in the lower courts, and to provide the "clear guidance" that the Georgia Supreme Court determined was lacking.
Stinson’s attorneys objected to any postponement of the trial, which continued Tuesday with jury selection. Earlier Tuesday Gibson ordered the media to leave the courtroom during jury selection. Gibson also refused a request by The Courier-Journal to hold a hearing before closing jury selection, saying it would be too distracting to the selection process.
Posted by Marcia Oddi on September 1, 2009 11:28 AM
Posted to Courts in general
Ind. Law - It's the Law: Part 2 of "Death penalty explained in three parts"
Ken Kosky's "It's the Law" column in the NWI Times this week is the second of a three-part series on the death penalty. ( Part 1 is here.) This Monday's column looks at looks at how prosecutors decide whether to seek the death penalty:
Porter County prosecutors have charged more than two dozen homicide suspects in the past 20 years but have only sought the death penalty against three.Of the three, one was a serial killer, one was a serial rapist and killer, and the third masterminded the kidnapping, torture and murder of a young woman who worked as a convenience store clerk.
Indiana law outlines which killers are eligible for the death penalty -- including those who kill while committing a robbery, rape or drug deal -- but Porter County Prosecutor Brian Gensel said prosecutors generally don't seek the death penalty against everyone who is eligible for it.
"The death penalty should be reserved for the worst of the worst," Gensel said.
Gensel said a lot of deliberation goes into the decision about whether to seek the death penalty.
Gensel said prosecutors consider the killer's mental capacity, mental state and history. Prosecutors also consider the "outrage factor" of a particular crime and how the jury would feel about recommending the death penalty for the perpetrator.
And, of course, prosecutors must consider the tremendous expense and scrutiny that comes with a death penalty case. Gensel said a standard murder trial might cost a county $30,000 to $50,000, while a death penalty case could easily cost $300,000 to $500,000 to take to trial. The extra expense results because defendants in death penalty cases are entitled to things such as money for expert witnesses and two experienced attorneys.
If prosecutors get a conviction against a killer in a death penalty case, the case is examined much more closely during the appeals process.
"It's a minefield for prosecutors because there's such scrutiny," Gensel said.
"I'm in favor of (the death penalty) philosophically ... but from a pragmatic perspective, it's fraught with stumbling blocks," he said.
The wishes of the victim's family also factor into prosecutors' decision making. Some families don't want to have to relive the tragedy for years or decades as a death penalty case goes through the appeals process.
Clark County Prosecutor Steve Stewart, a death penalty expert who authored the book, "Death Row 2009: Capital Punishment in Indiana," said the tenacity with which prosecutors seek the death penalty against killers varies from county to county. However, he said the Indiana Prosecuting Attorneys Council's Capital Litigation Committee meets monthly and will review a county's case and recommend to that county's prosecutor whether to seek the death penalty.
Like Gensel, Stewart agrees with the concept. Stewart said those who are put to death can't kill again, and, on a lesser level, it might deter others.
He said death penalty cases have decreased in recent years, due mostly to the cost of prosecuting them and the scrutiny that comes with the appeals process. He doesn't believe publicity surrounding innocent people on death row has caused the death penalty to fall out of favor, noting such cases are extremely rare.
Posted by Marcia Oddi on September 1, 2009 09:59 AM
Posted to Indiana Law
Ind. Gov't. - "Hoosier welfare winners and losers"
The Fort Wayne Journal Gazette has a strong editorial today about the state's welfare privatization contract. The long column concludes:
USDA, which pays about half the state’s costs for administering the food stamp program, questioned the FSSA thoroughly before giving the go-ahead for the privatization deal in 2007, with Indiana officials assuring the feds that they had a contingency plan if things went awry.The contingency plan, it now appears, was simply to pay more to IBM and ACS. The original contract of $1.16 billion has grown by 15 percent since it was signed in late 2006. IBM has been awarded an extra $47.3 million – some of it to fix the very problems created by its takeover of vital state services. The growing cost is one reason for federal and state lawmakers to remain vigilant; the continuing disservice to Hoosiers who depend on welfare services is an even better reason.
Posted by Marcia Oddi on September 1, 2009 09:42 AM
Posted to Indiana Government
Ind. Decisions - Another NFP COA decision reclassified
Ind. Decisions - Another NFP COA decision reclassified
The case is Darrolyn Ross, et al v. Sheila Rudolph, Luvenia Kilpatrick, et al - NFP opinion issued 7/29/09; Appellant's motion for publication filed 78/19/09; Appellant's petition for rehearing received 8/27/09; Ordered published 8/28/09.
From the opinion:
The sole question before us is whether Judge Zore had the authority to set aside his earlier order of summary judgment in favor of Appellees on the same day that he recused himself. Appellants contend that Judge Zore’s order is invalid, as it was issued on the same day as his recusal. Appellees contend that Indiana law does not prevent a judge from issuing substantive orders on a case, even after he had decided that he must recuse himself, unless actual prejudice or bias has been shown.See the 7/29/09 ILB summary here - 4th case.
Posted by Marcia Oddi on September 1, 2009 09:31 AM
Posted to Ind. App.Ct. Decisions
Environment - "Kentucky and Indiana lead nation in coal ash ponds"
James Bruggers reports in the Louisville Courier Journal - here are some quotes:
Indiana and Kentucky are the nation's top two states for coal ash ponds — and many of the holding basins for the toxic mess were built without the guidance of trained engineers, according to new information from the U.S. Environmental Protection Agency.The LCJ has made available the 14-page EPA coal ash pond surveys.The accounting, which found nearly 600 ash ponds across the U.S. — 53 in Indiana and 44 in Kentucky — is based on a survey of the nation's electric utilities that the EPA conducted after a massive December coal ash spill in Tennessee.
While the survey does not identify any of the Kentucky or Southern Indiana ponds as having any significant deficiencies, it found that inspections by state regulatory agencies in Kentucky, Indiana and elsewhere have been spotty. * * *
The Obama administration has promised to adopt national rules for handling coal combustion wastes, including ash and scrubber sludge. But agency spokeswoman Latisha Petteway said Monday that she did not know when the agency might propose new regulations for ash ponds. Regulation now is largely left to individual states.
She declined to comment on her agency's ash pond accounting and would only say that EPA officials are analyzing the findings and will make a report public by Jan. 1.
The EPA reported numerous ponds that had not been designed by an engineer, including three at Duke Energy's Gibson County, Ind., plant, seven Kentucky Utilities ponds scattered around Kentucky, and LG&E's 10 ponds at its Cane Run and Mill Creek plants in Louisville. Some also weren't overseen by a professional engineer during construction. * * *
The EPA's list shows no recent inspections by state regulators at numerous ponds, including some at LG&E's Mill Creek and Cane Run plants in Louisville, and Duke's Gallagher plant.
That's because Kentucky has no mandate to inspect impoundments deemed to be at little or no risk of collapse, said Bruce Scott, commissioner of the Kentucky Department for Environmental Protection. “For high-hazard structures, we inspect once every two years. … So, based on this EPA evaluation, at least for high-hazard structures, Kentucky has done a pretty good job of inspecting those sites in a timely manner.”
There are no requirements in Indiana for routine inspections of ash ponds contained by relatively small berms, which are typical in that state, said Rob Elstro, spokesman for the Indiana Department of Environmental Management.
Here is a long list of earlier ILB "coal ash" entries.
Posted by Marcia Oddi on September 1, 2009 09:15 AM
Posted to Environment
Monday, August 31, 2009
Ind. Decisions - Transfer list for week ending August 28, 2009
Here is the Clerk's transfer list for the week ending August 28, 2009. It is one page long.
No transfers were granted last week.
A notable case denied transfer last week was D.S. v. State of Indiana, about which the ILB wrote August 26th.
________
Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the May 22nd list.Over 5 1/2 years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Posted by Marcia Oddi on August 31, 2009 03:21 PM
Posted to Indiana Transfer Lists
Courts - "A.C.L.U. Lawyers Mine Documents for Truth "
Scott Shane had this lengthy story August 29th in the NY Times. It began:
WASHINGTON — In the spring of 2003, long before Abu Ghraib or secret prisons became part of the American vocabulary, a pair of recently hired lawyers at the American Civil Liberties Union noticed a handful of news reports about allegations of abuse of prisoners in American custody.The lawyers, Jameel Jaffer and Amrit Singh, wondered: Was there a broader pattern of abuse, and could a Freedom of Information Act request uncover it? Some of their colleagues, more experienced with the frustrations of such document demands, were skeptical. One made a tongue-in-cheek offer of $1 for every page they turned up.
Six years later, the detention document request and subsequent lawsuit are among the most successful in the history of public disclosure, with 130,000 pages of previously secret documents released to date and the prospect of more.
Posted by Marcia Oddi on August 31, 2009 01:47 PM
Posted to Courts in general
Courts - "You don’t see newspapers fighting to open court proceedings the way they used to, and people are starting to notice"
That is the lede to this column today by Adam Liptak of the NY Times. Some quotes from this important article:
“The days of powerful newspapers with ample legal budgets appear to be numbered,” wrote a public defender in Georgia, Gerard Kleinrock, in a recent Supreme Court brief. “Will underfunded bloggers be able to carry the financial burdens of opening our courtrooms?”The brief concerned the case of Eric Presley, a Georgia man convicted of cocaine trafficking. The judge closed the courtroom during jury selection in Mr. Presley’s case, on the theory that it was too small to accommodate both potential jurors and the public. Citing the public’s lack of access to the jury selection, Mr. Presley appealed, and the Supreme Court will soon consider whether to hear his case.* * *
Companies that still have ample resources do not always share a journalistic commitment to open government.
Consider the aftermath of a recent settlement in a lawsuit against Amtrak. After the railroad lost a $24 million jury verdict and while its appeal was pending, it agreed to pay an undisclosed sum to the plaintiffs, two trespassing teenagers who suffered severe electric burns after they climbed onto a parked train.
As part of the settlement, the parties asked Judge Lawrence F. Stengel of Federal District Court in Philadelphia not only to vacate eight of his decisions in the case but also to “direct LexisNexis and Westlaw to remove the decisions” from “their respective legal research services/databases.”
The judge agreed, and the database companies complied.
“In the infrequent event that we are ordered by the court to remove a decision from Westlaw,” explained John Shaughnessy, a spokesman for the service, which is owned by ThomsonReuters, “we will comply with the order, deleting the text of the decision but keeping the title of the case and its docket number. We also publish the court’s order to remove so there’s a clear record of the action.”
A LexisNexis spokeswoman said more or less the same thing.
Kathleen A. Bergin, who teaches at South Texas College of Law, said she found the companies’ actions perplexing. “These are public acts issued by public officials,” she said of the decisions, “and the public has an interest in them.”
Posted by Marcia Oddi on August 31, 2009 01:37 PM
Posted to Courts in general
Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)
For publication opinions today (2):
In City of New Haven Board of Zoning Appeals v. Flying J, Inc. , Judge Mathias writes:
The heart of the issue currently before us is whether the amended zoning ordinance is applicable to Flying J's planned travel plaza. If so, the planned travel plaza is not in compliance with the amended ordinance, and the BZA cannot be said to have acted improperly in rejecting Flying J's development plan; if not, the BZA did act improperly, and the trial court correctly reversed the BZA's decision.In Virginia Meister v. State of Indiana and City of Union City, Indiana, a 14-page, 2-1 opinion, Judge Friedlander writes:As the trial court correctly observed, changes in zoning ordinances are subject to any vested property right. Metro. Dev. Comm'n of Marion County v. Pinnacle Media, LLC, 836 N.E.2d 422, 424 (Ind. 2006) (“Pinnacle I”). Generally, a “nonconforming use” may not be terminated by a new zoning enactment. * * *
Upon appeal, our supreme court affirmed the long-held principle that zoning ordinances are subject to vested rights. Pinnacle I, 836 N.E.2d at 424. But the court rejected a line of cases which held that the mere filing of a building permit was sufficient to establish a vested right. Pinnacle I, 836 N.E.2d at 428 (overruling Knutson v. State ex rel. Seberger, 239 Ind. 656, 160 N.E.2d 200 (1959)). Instead, the court approved of a line of cases which held that land acquisition, demolition, and site preparation were not enough to establish a vested right. [In Pinnacle II the court further explained:] We acknowledge, as perhaps our original opinion should have, that vested rights may well accrue prior to the filing of certain applications. * * *
Here, the BZA argues that, because Flying J had not yet begun construction on its travel plaza, Flying J had no vested right to develop the travel plaza pursuant to the original zoning ordinance. The BZA argues that the amended zoning ordinance is therefore applicable and that Flying J's development plan for the travel plaza clearly exceeds the size limitations of the amended zoning ordinance. Flying J argues that it did have a vested right prior to the amendment of the zoning ordinance, that its planned travel plaza is a nonconforming use, and that the amended zoning ordinance does not apply.
If Pinnacle I were the only case we considered, we might well agree with the BZA that Flying J had no vested right because it had not yet begun construction on the travel plaza. * * *
We read the Pinnacle cases to mean that, while construction definitely does establish a vested right, mere preliminary work, including filing of a building permit, does not. In situations falling between these two extremes, courts must engage in a fact sensitive analysis to determine whether vested rights have accrued prior to application for a building permit or construction. * * *
Since the determination of when such rights vest is a fact-sensitive determination, we necessarily give deference to the trial court's findings. Under the facts and circumstances before us, we cannot say that the trial court erred in concluding that the amendments to the zoning ordinances were subject to Flying J's vested right in the property and that the amended zoning ordinance was not applicable to Flying J's planned travel plaza. Therefore, the trial court also correctly determined that the BZA erred in rejecting Flying J's development plan based on the inapplicable amended zoning ordinance.
This case comes before us on remand from the United States Supreme Court. In Meister v. State, 864 N.E.2d 1137 (Ind. Ct. App. 2007) this court affirmed the forfeiture of Virginia Meister‘s vehicle, which was seized after her son, John Wymer, was arrested while driving the vehicle for the offense of driving while suspended. A search subsequent to that arrest revealed that Wymer had methamphetamine in the vehicle. After the Indiana Supreme Court denied Meister‘s petition for transfer, she filed a petition for writ of certiorari with the United States Supreme Court. The Court granted that writ on May 4, 2009 and on June 5 remanded the cause to this court with the following instructions: "It is ordered and adjudged on May 4, 2009, by this Court that the judgment of the above court in this cause is vacated with costs, and the cause is remanded to the Court of Appeals of Indiana, First District, for further consideration in light of Arizona v. Gant, 556 U.S. ___[, 129 S.Ct. 1710] (2009)." Pursuant to this directive, we reconsider Meister‘s appeal. * * *NFP civil opinions today (6):[ILB - For background, see this entry from May 4th.]
[B]ased on the facts known to Officer Wymer at the time of the search, he had probable cause to believe a search of the vehicle Wymer was driving would uncover contraband or evidence of that crime.
The second element that must be present to justify a warrantless search of a vehicle is that the vehicle is readily mobile. * * * In view of the fact that Officer Bradbury had probable cause to search Meister‘s readily mobile vehicle, the warrantless search of the vehicle was justified under the automobile exception. Therefore, there was no violation of the Fourth Amendment.
Finally on this issue, we note that our analysis in the original opinion of Meister‘s challenge under article 1, section 11 of the Indiana Constitution is unaffected by Gant. Therefore, for the reasons stated in our original opinion, our conclusion that the search of Meister‘s vehicle did not violate this provision of the Indiana Constitution remains unchanged.
The second issue presented by Meister challenges the sufficiency of the evidence supporting the trial court‘s forfeiture order. Specifically, she alleges the State failed to prove that she knew or had reason to know that the vehicle was being used in the commission of the offense, as required by I.C. § 34-24-1-4(a). * * * We discern no need to do more here than indicate that our views and analysis on this issue, as set out in our original opinion, remain unchanged. We note in this regard that Gant did not address the subjects of forfeiture or the sufficiency of evidence, and therefore nothing in Gant requires reconsideration of this issue.
Judgment affirmed.KIRSCH, J., concurring.
RILEY, J., dissenting with separate opinion. [that concludes] Based on the facts before us, it is clear that Wymer was handcuffed and secured prior to the search of his car. He was not within reaching distance of the car‘s interior. An evidentiary basis for the search was also lacking. Wymer was arrested for driving with a suspended license—an offense for which the officers could not expect to find evidence in the vehicle. Because the officers could not reasonably have believed either that Wymer could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search in this case, pursuant to Gant‘s directives, was unreasonable.
Clark L. Bryant v. Harrison County Planning Commission (NFP) - "In his complaint, Bryant seeks declaratory, mandamus, and injunctive relief to force HCPC to enforce the Zoning Ordinance. Bryant alleges that HCPC has failed to enforce the Zoning Ordinance by allowing the construction of the over-sized garages, by improperly issuing improvement location permits and certificates of occupancy, by not requiring plot plans, and by not performing final inspections. Bryant, though, has not asserted that HCPC’s alleged violations of the Zoning Ordinance have caused him to suffer or have placed him in immediate danger of suffering a direct injury. While he alleges that two of the over-sized garages are located in the same subdivision as his home, he does not allege that these garages have or will cause him direct injury. Bryant states that he is bringing this action to protect his investment in his home, but he does not allege that HCPC’s alleged failure to enforce the Zoning Ordinance has caused or will cause a depreciation in the value of his property. Absent some showing that Bryant has suffered or will immediately suffer a direct injury, Bryant does not have general standing to pursue his claim against HCPC. * * *
"Although Bryant does not have general standing, he contends that there are several other bases by which standing may be established. * * *
"As stated above, Bryant has failed to show that he has a stake in the outcome of this case, and we conclude that Bryant does not have standing to pursue an action for mandate."
Bloomington Ford, Inc. v. Robert McArdle (NFP) - "Appellant-Defendant, Bloomington Ford, Inc. (Bloomington Ford), appeals the Worker‟s Compensation Board‟s decision affirming its administrative law judge‟s decision awarding Appellee-Plaintiff, Robert McArdle (McArdle), $6,058 for the amputation of the tip of his middle finger, which occurred while he was employed by Bloomington Ford. We affirm and remand.
"Bloomington Ford raises one issue for review, which we restate as: Whether McArdle‟s injury arose out of and in the course of his employment with Bloomington Ford."
In C.M.M. v. D.D.F. (NFP), an 8-page opinion, Judge Bradford writes:
Appellant-Respondent C.M.M. (“Father”) appeals the trial court’s order that he pay a portion of his children’s college expenses. We affirm.Again, as in this Aug. 14th entry and this Aug. 21st entry, the ILB points out that there is apparently a new, unannounced court-wide policy that essentially vests discretion in the writing judge as to whether or not to publish the names of the parties in certain cases. The parameters of the discretion, what criteria apply, etc., do not appear to be available to the public, but the ILB counts at least a half-dozen opinions recently where the writing judge has obscured the names of the parties.
Term. of Parent-Child Rel. of L.M.; B.M., J.D., and S.W. v. IDCS (NFP)
Term. of Parent-Child Rel. of A.D. and I.M.; J.D. and R.M. v. IDCS (NFP)
Term. of Parent-Child Rel. of M.M.; Q.M. v. IDCS (NFP)
NFP criminal opinions today (2):
John R. Crawford v. State of Indiana (NFP)
Lawrence Auler v. State of Indiana (NFP)
Posted by Marcia Oddi on August 31, 2009 12:17 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - "Court's trail confusing on sex offender rights"
The Richmond Palladium-Item ran this editorial on August 30th:
The Indiana Supreme Court ruled this summer that an offender who owned his home before a new residential law restricting proximity to a school, public park or youth center could not be forced to move by the law.This newspaper faulted the ruling, noting in this space that the defendant was being charged with behavior after the implementation of the statute, not before.
“In other words,” we said, “he is not charged with owning a home, but continuing to reside in a home in violation of defined space limitations after the law was passed.”
Still there was consistency in the court’s position. The state’s high court only months before had struck down the conviction of a man for failing to register as a sex offender, noting in similar fashion that he had completed his sentence for child molestation before the state’s Sex Offender Registration Act was passed.
So it is that we find more confusion than consistency with the court’s most recent ruling this month letting stand without comment a Plainfield ordinance barring sex offenders from the town’s public parks.
This goes well beyond the narrower residency statute. It bans those who have served criminal sentences and who pay taxes in support of public parks from even setting foot in those parks. And even where their crimes were not committed in those parks.
The defendant in the Plainfield case had completed his sentence and probation when he was told by police while visiting the town’s recreation center with his young son that he could not return.
People who love the law for its fair play should have some issues with this kind of “Scarlet Letter” justice that continues to punish after the proverbial “debt to society” has been paid.
Now, supporters of these arguably overreaching restrictions will argue that it is the high rate of recidivism by sex offenders that targets them for ongoing restrictions to protect the larger society, especially innocent children.
The data on repeat offenses is more confusing than the Indiana Supreme Court’s recent rulings. One can cherry pick what they want to support a particular position. For example, a Justice Department study of 272,111 felons released from prison in 15 states during 1994 found sex offenders were less likely than non-sex offenders to be re-arrested for any offense, but that sex offenders were about four times more likely to be arrested for another sex crime after discharge from prison.
But if the science convincingly supports the need to restrict the right to public property, or residency, or other basic rights for convicted sex offenders, then let that need be reflected in amended criminal codes that extend probationary periods upon conviction. That way, judges can rightfully impose those restrictions on a case-by-case basis within the broad parameters of probation. Those who violate specific terms of probation can be abruptly returned to prison, where they belong.
One thing that should be remembered here is that “sex offender” is itself a rather broad term, incorporating everything from the chronic perverts who prey on young children to, in some states, the 19-year-old youth caught and prosecuted for having consensual sex with his 15-year-old girlfriend.Simply denying fundamental rights to a class of citizens — even a class loosely defined by past criminal conduct — under the guise of protecting society probably renders us all a little less free and secure.
Posted by Marcia Oddi on August 31, 2009 10:54 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Law - "Mediation not about feeling good; it’s about making good decisions"
Nicole Brooks had this story yesterday ($$) in the Bloomington Herald-Times that begins:
Mediation is not “feel good” work, said David Nosko, a victim-offender reconciliation case manager with Monroe County’s Community Justice & Mediation Center.There may be no punishment greater for an offender than to sit across a small table from the person he or she harmed, he said.
The Mediation Center is offering in September a four-day, 32-hour training course for those interested in becoming mediators with the center or for people who simply want to gain mediation skills.
The center is a nonprofit organization largely staffed by volunteers. It is not overseen by the courts or any governmental group, although the county court’s probation department assigns many cases. Educators in the schools refer some cases to the center.
Headquartered in a one-room office on Bloomington’s courthouse square at 115 N. College Ave., the center provides conflict resolution, training programs that focus on small claims cases and shoplifting, and victim-offender reconciliation, among other programs.
Jon Dilts, a senior mediator and professor at Indiana University’s journalism school, said some people go through the 32-hour training so they can use mediation skills in their place of business or personal lives. A typical training session, which have been held in Bloomington the past eight or nine years, has as attendees business leaders who work in retail, property management, law and education students and people interested in civic engagement.
“We’re not counselors; we’re not lawyers,” Nosko said. “We don’t offer advice. It’s a discussion.”
Mediators facilitate listening and civilized conversations during which one person speaks at a time.
Having a third, neutral party listen to an argument between two warring neighbors or a landlord and tenant causes the incensed to behave with a bit more maturity and civility, said Ed Greenebaum, a center case manager, board member and trainer.
“That certainly does affect people’s behavior,” he said.
Posted by Marcia Oddi on August 31, 2009 10:47 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 8/31/09):
Thursday, September 3rd
- 9:00 AM - David A. Shotts v. State - Indiana police officers seized evidence from Shotts while executing an Alabama arrest warrant. The St. Joseph Superior Court admitted the evidence over Shotts’ objection. The Court of Appeals concluded the Alabama arrest warrant was deficient, and reversed in Shotts v. State, 907 N.E.2d 134 (Ind. Ct. App. March 12, 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Here is the ILB summary of the opinion (3rd case).]
- 9:45 AM - State v. Michael Haldeman and State v. Rachel Lawson - Michael Haldeman and Rachel Lawson were each charged with one or more counts of conspiracy to deal methamphetamine, a Class B felony, based on evidence gathered pursuant to “intercept warrants” that allowed the police to place wiretaps on certain cellular and residential phone lines. Haldeman and Lawson moved to suppress the evidence because the police failed to seek appellate review of the intercept warrants as required by Indiana Criminal Rule 25(B). The Morgan Superior Court granted their motions to suppress, and the State appealed. While the appeal was pending, the State moved the Supreme Court to transfer jurisdiction from the Court of Appeals per Appellate Rule 56(A) and to consolidate Haldeman and Lawson’s appeals. The Supreme Court granted both motions, thereby assuming jurisdiction over the consolidated appeals. [Note: Appellate Rule 56(A) is the emergency transfer rule]
- 10:30 AM - Kyle Kiplinger v. State of Indiana - A jury found Kiplinger guilty of murder. In the penalty phase proceedings on the State’s request for a sentence of life imprisonment without parole, the jury found the State had proven the charged aggravating circumstance but was unable to reach a unanimous decision regarding sentencing. The Perry Circuit Court sentenced Kiplinger to life without parole, and in this direct appeal, Kiplinger argues the conviction and sentence should be reversed.
Next week's oral arguments before the Supreme Court (week of 9/7/09):
Next Friday, September 11th
- 9:00 AM - State v. Allan M. Schlechty - The Jay Superior Court granted Schlechty’s motion to suppress evidence obtained during a search of his vehicle by his probation officer. The Court of Appeals affirmed in a not-for-publication Memorandum Decision, State v. Schlechty (Ind. Ct. App. 2/12/2009). The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Here is the ILB summary of the 2-1 NFP opinion.]
- 9:45 AM - Eric P. Sibbing v. Amanda N. Cave - Cave filed a personal injury complaint against Sibbing in the Marion Superior Court. Sibbing admitted fault, but disputed damages. A jury returned a damages award for Cave. Sibbing appealed. The Court of Appeals affirmed, concluding it did not appear the trial court erred in permitting Cave to testify concerning what a doctor told Cave about her condition and that regardless, any error in the admission of this testimony was harmless. The Court of Appeals also found no error in the exclusion of an expert's testimony that some treatment received by Cave was medically unnecessary. Sibbing v. Cave, 901 N.E.2d 1155 (Ind. Ct. App. 3/5/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Note: Here is the ILB summary of the 2-1 COA opinion.]
- 10:30 AM - Joseph J. Reiswerg v. Pam Statom - In a legal malpractice action, Pam Statom sought partial summary judgment against her former attorney Joseph Reiswerg and the law firm of Cohen Garelick & Glazier. The trial court granted Statom's motion against Reiswerg but denied the motion against the firm. After Reiswerg and the firm subsequently filed motions for summary judgment, alleging Statom's claims were time-barred, Statom sought to strike those summary judgment motions. The trial court granted the motion to strike, finding Reiswerg and the firm had waived their statute-of-limitations defense by not raising it in opposition to Statom's partial summary judgment motion. The trial court also purported to enter final judgment in favor of Statom and against Reiswerg. On consolidated appeals, the Court of Appeals dismissed in part, affirmed in part, reversed in part, and remanded. Reiswerg v. Statom, 897 N.E.2d 490 (Ind. Ct. App. 12/5/2008), aff'd on reh'g, 901 N.E.2d 1168 (3/5/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Here is the the ILB summary of Dec. 5, 2008 COA opinion and the March 5th ruling on the petition for rehearing. From the Dec. 5th opinion: "In this consolidated appeal, Joseph J. Reiswerg appeals the trial court’s grant of partial summary judgment to Pam Statom in her legal malpractice action, and both Reiswerg and Cohen Garelick & Glazier (“CGG”) appeal the trial court’s order striking their motions for summary judgment, which raised statute of limitations defenses." Note that Appellant Joseph J. Reiswerg's Petition for Transfer was GRANTED and Appellee Pam Statom's Petition for Transfer was DENIED.]
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 8/31/09):
Tuesday, September 1st
- 2:00 PM - Kristy Humphrey, (As Personal Representative of the Estate of Charles Mandress, Jr., Deceased) vs. Duke Energy Indiana, Inc., et al - Kristy Humphery, as personal representative for the Estate of Charles Mandrell, Jr., appeals from the trial court's grant of summary judgment to Duke Energy Indiana, Inc. ("Duke Energy"). Humphery alleged in her complaint that Duke Energy negligently placed a utility pole near an intersection in Johnson County, which proximately caused Mandrell's death. On appeal, the parties dispute the existence of a genuine issue of material fact regarding whether Duke Energy could have reasonably foreseen Mandrell's collision with its utility pole. The Scheduled Panel Members are: Judges Najam, Kirsch and Barnes. [Where: Indiana Court of Appeals Courtroom - WEBCAST] ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
- 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 31, 2009 06:45 AM
Posted to Upcoming Oral Arguments
Sunday, August 30, 2009
Ind. Gov't. - "Local disasters prompt Clark County to seek ideas to back up documents"
From the New Albany News & Tribune:
The Clark County Public Records Commission held a meeting Thursday to hear a proposal by Kitestring to move some of the county’s official documents into an electronic format.The presentation was made on the heels of a fire at the Madison County courthouse which destroyed the building’s historic dome and some official documents. In addition, recent flooding threatened to ruin important official documents in Clark County and prompted Floyd County to look into backing up its documents through e-files.
The files would be prioritized to determine which would be the first to be scanned in and would likely include marriage licenses, deeds and governmental documents like meeting minutes and ordinances.
September 1 is a current target date for going online with marriage certificates, commission officials said.
Previously filed marriage records would have to be scanned in online through the proposed process.
All of the files would be viewable online, eventually, but that does not mean that the county would trash the paper copy.
Some concern was raise about the viability of viewing the documents in the future if technology were to change and what kind of cost the county would incur.
President of Kitestring, Tim Miller, reassured the commission that the technology to view the documents would continue to evolve and gave an example of being able to convert digital images onto microfilm — an older technology.
The estimated cost to scan in old documents would be around $.03 per page, Miller said.
The project will have to go to the commissioners and compete through bids before it is approved, according to Dan Moore, commission chairman.
Posted by Marcia Oddi on August 30, 2009 06:42 PM
Posted to Indiana Government
Courts - SCOTUS will hear case next month, preceding the "First Monday in October"
"Supreme Court to Revisit ‘Hillary’ Documentary" is the headline to this Adam Liptak story today in the NY Times. A quote from the long story:
The case involves “Hillary: The Movie,” a mix of advocacy journalism and political commentary that is a relentlessly negative look at Mrs. Clinton’s character and career. The documentary was made by a conservative advocacy group called Citizens United, which lost a lawsuit against the Federal Election Commission seeking permission to distribute it on a video-on-demand service. The film is available on the Internet and on DVD. The issue was that the McCain-Feingold law bans corporate money being used for electioneering.A lower court agreed with the F.E.C.’s position, saying that the sole purpose of the documentary was “to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world and that viewers should vote against her.”
At the first Supreme Court argument in March, a government lawyer, answering a hypothetical question, said the government could also make it a crime to distribute books advocating the election or defeat of political candidates so long as they were paid for by corporations and not their political action committees.
That position seemed to astound several of the more conservative justices, and there were gasps in the courtroom. “That’s pretty incredible,” said Justice Samuel A. Alito Jr.
The discussion of book banning may have helped prompt the request for re-argument. In addition, some of the broader issues implicated by the case were only glancingly discussed in the first round of briefs, and some justices may have felt reluctant to take a major step without fuller consideration.
Posted by Marcia Oddi on August 30, 2009 06:00 PM
Posted to Courts in general
Ind. Gov't. - "The Indianapolis Public School Board adopted the district's $448 million budget this week, but don't ask board members for too much detail -- they never saw the actual budget before voting on it"
It gets worse. From today's "Behind Closed Doors" column in the Indanapolis Star:
The Indianapolis Public School Board adopted the district's $448 million budget this week, but don't ask board members for too much detail -- they never saw the actual budget before voting on it.My Thoughts: Absolutely incredible!Member Kelly E. Bentley voted against the budget, saying the administration had not answered her questions about how money was allocated in it.
Another board member and the superintendent told her the summaries provided by the administration should have been more than enough. Bentley countered that the board's job was fiscal oversight.
"I think as a school board we have that obligation," Bentley said in the meeting, "and I'm not sure how resources get allocated to schools."
The district's practice has been to give board members the fund-by-fund budget numbers along with a breakdown of any changes or decreases by area. But the actual line- item amounts are in a separate budget that Bentley said board members did not receive.
Board member Marianna R. Zaphiriou told Bentley that she felt her request -- and the suggestion that other board members weren't asking enough questions -- was wrongheaded.
"Part of that implication is that some of us should feel uncomfortable, and we don't," she said. "I have no reason to want that level of information. I don't feel the need to request that information."
Superintendent Eugene White told Bentley she was welcome to make an appointment and go line-by-line through the budget with district finance officials. But he said he wouldn't waste the board's time by giving it the entire budget to review.
"We have not, and we don't intend to, give you the specificity of each of those items," White said. "It would be too prohibitive for you to go through that. . . . We're not going to bring that to you. We're asking you to approve the budget, and to go any deeper than that would take a lot of your time and be ridiculous."
The budget passed 6-1.
Posted by Marcia Oddi on August 30, 2009 05:53 PM
Posted to Indiana Government
Environment - Wind turbines "can appear on Doppler radar like a violent storm or even a tornado"
From the AP, a story that begins:
SIOUX FALLS, S.D. -- Wind farms have been blamed for disrupting the lives of birds, bats and, most recently, the land-bound sage grouse.Now the weatherman?
The massive spinning blades affixed to towers 200 feet high can appear on Doppler radar like a violent storm or even a tornado.
The phenomenon has affected several National Weather Service radar sites in different parts the country, even leading to a false tornado alert near Dodge City, Kan., in the heart of Tornado Alley. In Des Moines, Iowa, the weather service received a frantic warning from an emergency worker who had access to Doppler radar images.
The alert was quickly called off in Kansas and meteorologists calmed the emergency worker down, but with enough wind turbines going up last year to power more than 6 million homes and a major push toward alternative energy, more false alerts seem inevitable.
New installations are concentrated, understandably in windy states like Texas, Oklahoma, Kansas, Colorado and Iowa, all part of Tornado Alley.
Posted by Marcia Oddi on August 30, 2009 05:49 PM
Posted to Environment
Ind. Law - Continuing on with: "Apparently there are all sorts of surprises in the special session budget"; my thoughts
This week's issue of the highly-respected, subscription-only newsletter, Indiana Legislative Insight, includes this story:
The Indiana Law Blog points out some complications and unexpected and sometimes unintended consequences that language inserted in the special session budget bill have caused with other laws.For essential background about "the IDCS budget surprise", see this ILB entry from April 30th, re the Supreme Court's April 17th decision in In re T.S. on April 17th -- the date is important. In a report in the IndyStar, Tim Evans wrote:We're even hearing that some veteran lobbyists are feeling blindsided by how some seemingly innocuous provisions have adversely impacted legislation that they worked successfully to pass as recently as late April.
The litany includes such matters as the language limiting use of golf carts to cities and towns which have passed authorizing ordinances – with no equivalent authority for counties. This has reportedly caused havoc with some long-time practices, and may require corrective amendments, according to the Indiana Law Blog.
Other unexpected provisions causing controversy include changes in Department of Child Services [IDCS] practices that afford the director sole authority to approve out-of-state placement of youths with special treatment needs.
And lest you be too dismissive of the golf cart issue, you should understand that it is important in many communities. The Decatur Daily Democrat reports on a town hall meeting hosted in Monroe by Sen. Travis Holdman (R) and Rep. Matt Lehman (R), where the first-term lawmakers discovered that „the majority of the 50 area residents in attendance were there to talk about golf carts and their regulation ....
"What became the argument was, did we exclude counties (from the list of governmental bodies which legally can regulate golf cart use)" said Lehman. "The law says local governments can control golf carts, but it only specifically mentions towns and cities. The General Assembly's intent was never to take away the authority of the counties .... The problem is that, outside of this rural community, you have a lot of people who hate golf carts. And several of them hold seats in the state legislature," said the Berne lawmaker.
Holdman cited one such example, noting that "committee chairman in my own party" refused to allow debate on the golf cart legislation in its early stages. "Sometimes you've got to work around those kinds of people," Holdman said.
Lehman said conversations are currently under way between various legal experts across the state in an attempt to reach a final interpretation of the new state law "that will allow county commissioners to pass an ordinance" addressing golf cart regulation. "And I think you [they] have that right."
The state Supreme Court has issued a decision that should make it easier for judges to defend rulings that clash with Department of Child Services recommendations. It is an important decision, legal experts and child welfare advocates agree, because a law that went into effect Jan. 1 seemed poised to discourage such rulings. The new law, which was included in a property tax measure, shifts the cost of providing care for children in DCS custody from the counties to the state. But there's a catch: If a local judge disagrees with the DCS recommendation, the county must pick up the tab unless the judge can prove the agency's recommendation is unreasonable or contrary to the welfare and best interests of the child. The fear among some is that the requirement would pressure judges to go along with DCS to avoid costing the county money. A LaPorte County judge's decision to overrule DCS was the first case challenged since the law went into effect. An appellate court agreed in March with the judge's recommendation, and now so has the Indiana Supreme Court. But perhaps more importantly, the court said in its April 17 decision that the proper test for the appellate court in such disputes is that it must find the judge's decision was "clearly erroneous" and not merely assume a DCS recommendation is correct.What happened next was the change to IC 31-40-1-2(f) inserted in the special session budget [via PL 182-2009(ss), SECTION 387], passed June 31st and effective July 1st. See this Aug. 13th ILB entry, which quotes from a Fort Wayne Journal Gazette editorial:
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. * * *Court of Appeals Judge May also discovered the special session surprise and referenced it in a footnote in her Aug. 10th opinion in D.S. v. State - see this ILB entry. The Supreme Court, via an expedited review, denied the IDCS petition to transfer D.S. on Aug. 26h -- see ILB entry here. (Chief Justice Shepard added his own statement -- including "In this case, the trial judge has been appealed for choosing the least expensive placement" -- to the end of the Supreme Court's unanimous denial of the IDCS's petition to transfer.)The General Assembly allowed judicial discretion to be further eroded with the budget provision. It should reconsider the issue in its upcoming session.
Finally, see the ILB summary of this Friday's (Aug. 28th) Court of Appeals decision in T.D. v. State of Indiana here (2nd case), along with the links in the ILB's introductory paragraph. In this opinion, which also happens to have been written by Judge May, the special session change is noted in footnote 2, which observes in part:
This amendment shifts from IDCS to the counties the burden of payment for housing and services provided to or for the benefit of a child placed in a facility located outside of Indiana without prior approval by the IDCS director or the director’s designee, notwithstanding the court’s determination regarding the best interests of the child.Now, for more on the golf cart budget surprise, see this July 15th ILB entry, which indicates re the Indiana State Police:
ISP asked for corrective language in the budget, which basically added IC 9-21-8-57, the statute barring golf carts on highways unless permitted by ordinance.Subsequent ILB entries indicate the issues that this unannounced special session budget alteration to the law crafted and adopted during the regular 2009 session has occasioned. See: this Aug. 5th entry, headed "New golf cart law, as amended, may work a hardship on those outside Culver town limits;" and this Aug. 9th entry, headed "New golf cart laws may need corrective amendments."
My Thoughts: More surprises are certain to be discovered in the 2009 budget, language added in at the last moment without opportunity for most members of the General Assembly, much less others, to review and understand, what with no committee reports or 2nd and 3rd reading floor debates in each house.
And these changes are often made via non-code language, intentionally buried somewhere within the mega-page bill, intended by their writers to surface only after they have become law.
Of course the constitutional "one subject" requirement was intended to protect against the type of action. These is at least one case currently pending before our Supreme Court involving similar last minute additions to the "budget bill" in an earlier year. But the courts have consistently avoided addressing this problem, claiming that "separation of powers" ties their hands.
Posted by Marcia Oddi on August 30, 2009 12:01 PM
Posted to Indiana Courts | Indiana Government | Indiana Law
Saturday, August 29, 2009
Ind. Decisions - More on: "Judges deal double defeat to songwriter who sued Lake tourism bureau"
Updating this ILB entry from August 5th, Steve Schmadeke of the Chicago Tribune has a lengthy story, dated Aug. 30th, headed "A short telephone jingle leads to a lawsuit tangle." It begins:
What started out as a sweet little ditty to promote tourism in Lake County, Ind., has turned into a long, bitter copyright battle -- one that has piled up thousands of dollars in lawyers' fees and inundated the courts, leaving one frazzled federal judge to quote rapper DMX: "Y'all gonna make me lose my mind. ... Y'all gonna make me lose my cool!"The legal dispute has its roots in an obscure 1999 doo-wop song, performed by a Northwest Indiana group, that was used as on-hold music for a time by the Lake County tourism bureau. Though one of the song's co-authors licensed the song for free, the other says she is the sole author and never lent her permission to the tourism board. She has been fighting it in court since leaving the band.
The case has spawned at least three lawsuits, thousands of dollars in judge-ordered sanctions against the woman's attorneys, a three-day trial, estimated legal fees of more than $500,000, reams of paperwork and a subpoena issued to a federal judge. The Indiana woman who brought the lawsuit, Illinois Toll Highway Authority clerk Cheryl Janky, has lost her house, as six years of legal fees mounted, according to court papers and one of her attorneys
"This is one of those cases that gives lawyers a bad name," wrote U.S. District Judge Philip P. Simon in the opening line of a 2008 order.
Attorneys on the case say they see no end in sight, even after a split ruling this month by the 7th Circuit Court of Appeals in Chicago threw out a $100,000 jury verdict against the Lake County Convention and Visitors Bureau, now called the South Shore Convention and Visitors Authority.
Attorneys for Janky, formerly of the doo-wop group Stormy Weather, have appealed the decision and are asking that the entire circuit of 15 judges hear the case, which a bevy of fed-up judges has already remarked has a "long and mostly ridiculous history." A lawsuit in Lake County, Ind., court also remains open.
Posted by Marcia Oddi on August 29, 2009 02:33 PM
Posted to Ind. (7th Cir.) Decisions
Friday, August 28, 2009
Ind. Gov't. - Allen County's ordinances online [Updated]
From WOWO 1190 AM:
Allen County has teamed up with IPFW's Helmke Library to put the entire county code online. The site includes a search feature that you can use to browse county laws and ordinances. Access is free...you can check it out for yourself by clicking here.Each of the 19 Titles of the Code is available as a separate PDF document.
This is useful. Most cities and towns ordinances are available online only behind very clunky interfaces run by national companies. For instance, here are Fort Wayne's, linked from the City website.
But not so fast. The new Allen County site also states:
Copyright Indiana University-Purdue University Fort Wayne, 2009. All rights reserved. May not be reproduced without permission.So what exactly is copyrighted? What does this language mean as applied here. Has IUPUFW copyrighted the Allen County Code? Does this mean you may not quote it without obtaining written permission? Did IUPUFW obtain permission from the county before they slapped a copyright on its ordinances?
Also, where does it say how current this County Code is and how frequently it is / will be updated?
[Updated 8/29/09] A reader has sent me a link to a release about the new, online Allen County Code. It answers the last question above:
Each title of the County Code is displayed individually and can be searched by keyword or by specific Article section. The Allen County Commissioner's Office will provide quarterly updates to the code and a year-end final version that will be archived in the IPFW Helmke Library's historical digital collection.Notices, perhaps on the Table of Contents, stating "This Code is updated quarterly and was most recently updated ..." will help orient the user.
Archiving a final version of the entire Code each year as, for instance, the Allen County Code for the year 2008" is a very good idea. One caution -- what if one of those 2008 ordinances had been changed in the middle of 2008? How will the researcher know? Perhaps tables or history lines, or both. And how to locate the version before the change? Things to think about ...
Re the copyright issue, ILB readers will remember earlier related entries, including this one protesting the fact that the bulk of the language in Indiana's administrative building codes is not available online or on paper unless it is purchased from a private organization that has copyrighted it.
Posted by Marcia Oddi on August 28, 2009 02:01 PM
Posted to Indiana Government
Ind. Decisions - "Court drops abuse suit against Fort Wayne. diocese"
This AP alleged priest abuse story is about a different lawsuit than those that have appeared previously in the ILB.
Posted by Marcia Oddi on August 28, 2009 01:42 PM
Posted to Ind. Trial Ct. Decisions
Courts - "D.C. Circuit Tosses FCC Rule Capping Cable Subscribers"
Take a look at this just-posted entry from the Blog of Legal Times.
Posted by Marcia Oddi on August 28, 2009 01:38 PM
Posted to Courts in general
Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)
For publication opinions today (5):
In Annette Baker v. Heartland Food Corporation , a 9-page opinion, Judge Najam writes:
Annette Baker filed an application for adjustment of claim with the Worker's Compensation Board of Indiana (the “Board”) against her employer, Heartland Food Corporation (“Heartland”). A Single Hearing Judge denied her claim, concluding that Baker had not established that her personal injury arose out of and in the course of her employment. Baker petitioned the full Board, which affirmed the Single Hearing Judge's decision. On appeal, Baker contends that the Board erred when it denied her claim. Applying the positional risk doctrine, we hold that Baker met the initial burden to show that her personal injury occurred in the course of employment, that the burden of proof shifted to Heartland, and that Heartland failed to rebut the presumption that the injury arose out of employment. Accordingly, Baker is eligible for worker's compensation. * * *T.D. v. State of Indiana is the fourth case to come to the Court of Appeals under Indiana Appellate Rule 14.1. The others were T.S. [see also the ILB entries under the heading "Supreme Court grants transfer with opinion, applying new Appellate Rule 14.1"], D.M., and D.S. [transfer was denied in D.S. on Aug. 24- see this ILB entry for more info]. As with the earlier cases, in T.D., a 10-page opinion, the trial court's decision is affirmed. Judge May writes:Baker would not have been at the place where she injured her back but for the duties of her employment. Heartland did not prove that the injury was the result of an idiopathic cause, a cause personal to her, and it has not, therefore, rebutted the presumption in Baker's favor under the positional risk doctrine. Accordingly, we reverse the Board's decision and remand with instructions to award Baker benefits. Baker would not have been at the place where she injured her back but for the duties of her employment. Heartland did not prove that the injury was the result of an idiopathic cause, a cause personal to her, and it has not, therefore, rebutted the presumption in Baker's favor under the positional risk doctrine. Accordingly, we reverse the Board's decision and remand with instructions to award Baker benefits.
The Indiana Department of Child Services (“IDCS”) seeks expedited review, pursuant to Indiana Appellate Rule 14.1, of the St. Joseph Probate Court’s modified dispositional order placing T.D., a juvenile adjudicated to be a delinquent, in an out-of-state shelter care facility contrary to the IDCS’s placement recommendation. We affirm. * * *Andre Syval Peoples v. State of Indiana - "Andre Peoples entered a plea of guilty to dealing cocaine as a Class B felony, then after a bench trial was found to be an habitual offender. He argues on appeal the habitual offender enhancement was improper because his prior convictions do not support such an enhancement. We affirm."After reviewing IDCS’s and the Probation Department’s Consideration Reports and considering the evidence and testimony admitted during the modification hearing, the trial court concluded IDCS’s alternative placement recommendations were contrary to T.D.’s best interests. The order placing T.D. at Forest Ridge was supported with ample evidence of T.D.’s history of drug abuse, her diagnosed mental disorders, her family relationships, her wishes and those of her grandmother, and the Probation Department’s formal recommendation. We cannot conclude the trial court committed clear error in placing T.D. at Forest Ridge.[2]
______________
[2] At the time the trial court issued its modified dispositional order placing T.D. in the Forest Ridge program, Indiana law provided that IDCS was responsible for the payment of costs and expenses incurred by or on behalf of a child for an out-of-home placement ordered by a juvenile court and implemented after entry of a dispositional decree or modification order. This was true even if the placement was contrary to the IDCS recommendation, unless or until the trial court modified its dispositional order or IDCS prevailed on appeal, so long as the court made written findings that the placement was an emergency required to protect the health and welfare of the child. See Ind. Code § 31-37-18-9(d) and (e). This rule also applied to out-of-state placements if certain additional conditions were met. See Ind. Code §§ 31-37-19-3 and 41-40-1-2(f) (2008). [ILB - that should be "31", not "41"]But during the 2009 Special Session of the Indiana General Assembly, Indiana Code Section 31-40-1-2(f) was amended. It now reads: “The [IDCS] is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement is not recommended or approved by the director of the department or the director’s designee.” (Emphasis added.) This amendment shifts from IDCS to the counties the burden of payment for housing and services provided to or for the benefit of a child placed in a facility located outside of Indiana without prior approval by the IDCS director or the director’s designee, notwithstanding the court’s determination regarding the best interests of the child. Because the change made to Indiana Code Section 31-40-1-2 did not become effective until July 1, 2009, it is inapplicable to the case before us.
In Steven T. Gerber v. State of Indiana , a 14-page decision with three opinions, Judge May writes for the majority:
Steven T. Gerber appeals the denial of his petition for expungement of his arrest records. We reverse and remand. * * *David Mork v. State of Indiana - "David Mork appeals his conviction for theft as a class D felony. Mork raises two issues, which we revise and restate as follows: I. Whether the trial court improperly denied Mork's motion for discharge under Ind. Criminal Rule 4(B); and II. Whether the evidence was sufficient to support Mork's conviction. We affirm."Gerber raises two issues, which we restate as: (1) whether the trial court erred by treating the running of the limitations period as a prerequisite to petitioning for expungement, and (2) whether the trial court erred by allowing the Prosecutor to advance arguments in opposition to Gerber’s petition. * * *
On remand, the trial court shall either (1) summarily grant the petition, (2) set the matter for hearing, or (3) summarily deny the petition after finding the petition insufficient. The Prosecutor shall not participate in the proceedings on remand.
Reversed and remanded.
BAKER, C.J., concurs in part and dissents in part. [in an opinion which begins] Although I agree with the majority’s substantive analysis, I respectfully part ways from the disposition of the case. I believe that the trial court has only two limited options on remand.
BARNES, J., concurs in part and dissents in part. [a snippet] I part ways, however, from her conclusion that participation by the prosecutor “should not be permitted on remand.”
NFP civil opinions today (3):
Term. of Parent-Child Rel. of E.H., J.G., and J.J.G.; E.H. and J.G. v. IDCS (NFP)
John L. Parker v. Lee Morgan (NFP) - "After visiting his friend Calvin Guy at an apartment that Guy was leasing from landlord Lee Morgan, John Parker fell in the apartment’s snow-covered parking lot and injured his ankle. When he returned after the snow had cleared, Parker observed that the parking lot was eroded and uneven in the spot where he had fallen. Parker filed a complaint against Morgan, alleging that he negligently maintained the parking lot, which was used by all the tenants and was under Morgan’s control. Morgan filed a motion for summary judgment, which the trial court granted. Parker now appeals, contending that the trial court applied the incorrect standard of care and that there are remaining genuine issues of material fact. Agreeing with Parker, we reverse the trial court’s grant of summary judgment and remand for further proceedings."
Henry E. Fagan v. Brenda D. Fagan (NFP) - "Henry E. Fagan (“Husband”) appeals the order dissolving his marriage to Brenda D. Fagan (“Wife”). He argues the trial court erred by: (1) entering a final dissolution decree without conducting a retrial of the final dissolution hearing; (2) awarding Wife one-half of his pension; and (3) entering an order for child support in excess of the amount agreed upon by the parties. Concluding Husband has waived these issues, and otherwise finding no error, we affirm."
NFP criminal opinions today (6):
Thomas Dose v. State of Indiana (NFP)
Andrew G. Bowers v. State of Indiana (NFP)
Phillip T. Billingsley v. State of Indiana (NFP)
Jason Woolems v. State of Indiana (NFP)
Michael Havison v. State of Indiana (NFP)
Adrian Butler v. State of Indiana (NFP)
Posted by Marcia Oddi on August 28, 2009 12:34 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - 7th Circuit issues one Indiana opinion today
In Cruz v. Safford (SD Ind., Judge McKinney), a 10-page opinion, Judge Bauer writes:
Oscar Cruz, an inmate at the Pendleton Correctional Facility, filed a pro se civil rights action against prison guard John Safford under 42 U.S.C. § 1983, claiming that Safford reached into Cruz’s cell and choked him, in violation of his Eighth Amendment right to be free from excessive force. The case was tried to a jury and Cruz lost. On appeal, Cruz argues that the district court committed several reversible errors by: (1) erroneously instructing the jury; (2) denying a motion to amend his complaint; and (3) limiting the cross-examination of one of Safford’s witnesses. For the following reasons, we affirm.
Posted by Marcia Oddi on August 28, 2009 10:57 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Courts - Summit on Racial Disparities in the Juvenile Justice System
The Summit on Racial Disparities in the Juvenile Justice System, held yesterday in Indianapolis, is the subject of a report today by the AP's Charles Wilson, in the Chicago Tribune. Some quotes:
About 200 judges, social workers and other experts from Indiana and other states gathered in Indianapolis to discuss how to handle the state's racial disparities in the arrest and prosecution of juveniles. The meeting was an outgrowth of a state commission's report in October about youth services in the state.For background, see this ILB entry from August 14th, and this ISBA webpage, including a resource guide.Russ Skiba, director of the Equity Project at Indiana University, said preliminary figures based on 2008 data show that black youth were on average about three times as likely to be arrested than other races. He also found that blacks were more likely to be detained for minor offenses such as disorderly conduct or violating probation than whites, and were much more likely to be sent to detention centers than white youth arrested for similar offenses. His data showed that blacks overall were about twice as likely as other races to be detained and that blacks were more than six times as likely to be detained for drug offenses -- even though they were arrested for such crimes less often than whites.
His study, expected to be released later this year, was based on data from the nine Indiana counties that have a computerized juvenile justice system database.
Other experts said far too many youngsters -- whatever their race -- are getting caught in the criminal court system.
Zero tolerance policies often enforced by school police can put youth on a direct path to the courts, detention centers and dropping out of school, they say.
"The zero tolerance strategies -- they just really don't work," said Noble Wray, chief of the Madison Police Department in Wisconsin.
Several experts said one solution is to give police officers more discretion when dealing with minor juvenile offenses and to provide alternatives to detention such as rehabilitative workshops or community service.
"Formal involvement in the judicial system is not going to be the answer for changing the behavior of these kids," said Thomas Cleary, the senior deputy district attorney for Portland, Ore.
Posted by Marcia Oddi on August 28, 2009 09:41 AM
Posted to Indiana Courts
Ind. Decisions - "High court denies Gary casino appeal: Ruling clears way for trial of casino mogul's lawsuit against city"
As I wrote in this entry Monday when posting the August 21st transfer list:
There look to be several other denials of interest on today's 8-page list.One of them was City of Gary, Indiana v. The Majestic Star Casino, et al, about which Jon Seidel reports today in the Gary Post-Tribune. His story begins:
The Indiana Supreme Court has chosen not to hear an appeal from the city of Gary in its legal battle with Majestic Star Casino.Here are earlier ILB entries on the Majestic Star Casino.Gary tried to overturn a Marion County Superior Court ruling that rejected a change-of-venue request from the city and denied an injunction that would force Majestic Star Casino owner Don Barden to make monthly payments to the city.
The Indiana Court of Appeals upheld that ruling in May. Last week, the Supreme Court chose not to hear the case. All justices concurred except Chief Justice Randall Shepard and Justice Robert Rucker, according to court records.
Susan Severtson, Gary's corporation counsel, said attorneys will now likely return to Marion County court to argue the full lawsuit as filed by Barden in 2008.
"We have not been advised of the next court date," Severtson said.
Posted by Marcia Oddi on August 28, 2009 09:25 AM
Posted to Indiana Transfer Lists
Ind. Decisions - "Seventh Circuit enforces requirement that district judges address non-frivolous sentencing arguments"
That is the heading to this entry posted yesterday by Prof. Douglas Berman of the Sentencing Law and Policy Blog that begins:
The Seventh Circuit today issued an important little opinion on post-Booker procedural requirements in US v. Villegas-Miranda, No. 08-2308 (7th Cir. Aug. 27, 2009) (available here).
Posted by Marcia Oddi on August 28, 2009 09:20 AM
Posted to Ind. (7th Cir.) Decisions
Thursday, August 27, 2009
Ind. Gov't. - "St. Joseph County to crack down on homestead exemption cheats"
Troy Kehoe of WSBT 2, South Bend, has this long story today. Here are some quotes:
ST. JOSEPH COUNTY — St. Joseph County leaders are working to track down hundreds of thousands of dollars in missing revenue that could help pare down a $3-$4 million hole in next year's County budget. They're also sending a message: homeowners cheating the system are about to be caught.The story includes a link to this July 8, 2009 memo from the Indiana Department of Local Government Finance.The issue all revolves around homestead deductions or exemptions. The homestead credit is granted to homeowners equivalent to 60% of the assessed value of the property or $45,000, which ever is less.
Mortgage exemptions of up to $3,000 can also be granted.
That can add up to a significant amount of money per property in tax exemptions, said St. Joseph County Auditor Peter Mullen.
"It can be a big deductions. It's a lot of money per house," he said.
But, there's the catch: only one exemption of each kind is allowed per household, no matter how many properties are owned.
"You can only have one. You can't have two," Mullen said.
And Mullen believed that's exactly what most homeowners had. That is, until he took a closer look.
It all began early this year, as printers hummed in the Auditor's office. More than $68 million in homestead exemption checks were being mailed, and some had lots of zeros.
"Some of those checks were as small as $25. Some of them were as high as $20,000," Mullen said. "But, more than 1,000 of the checks came back returned to us. They said, moved — not at this address."
So, Mullen looked closer and says he shocked at what he found.
"In many, many cases, the person had two or three homestead exemptions, but used different names. They may have used their middle name and not their last name. They may have used initials. They may have had their wife's name on one, joint names on one, and the husband's name on one. And, they got three mortgage and homestead exemptions," Mullen said.
In one case alone, Mullen found one property owner with 12 different homestead exemptions. * * *
"It took a lot of time, and a lot of patience to go through the telephone book, to call the houses and find out who owns what. And, in turn, we have received over $56,000 in taxes that were being avoided," Mullen said. * * *
In Marion County, Indiana, Mullen says auditors have already found more than $1 million in lost revenue to undue homestead credits just this year.
It's money that should be going to pay county bills, and Mullen says it's highly likely there's a lot more of it still out there. * * *
The problem is, catching those with multiple exemptions has come mostly by chance.
"If we catch it, it's generally by luck," Mullen said. "We can then stop it from happening again. But, we can't go an purge everybody in the county without their numbers. Not until they sell the house."
But, a new state law called House Enrolled Act 1344 is aiming to change that by giving county auditors new powers to crack down.
"Anyone who now applies for the homestead deduction must give either the last five digits of their social security number and the last five digits of their driver's license number, or another comparable form of identification, like a state ID, federal ID or passport," said Indiana Department of Local Government Finance Spokesperson Amanda Stanley.
"Then, that's entered into a statewide, secure database that allows county auditors to log in and search statewide if that person is receiving a homestead, either in their county or another county. That will help cut down on multiple homesteads," Stanley continued.
Starting with 2010 Indiana property tax bills, those requirements will expand to all homeowners — even those already receiving a homestead or mortgage exemption. * * *
The message, both Stanley and Mullen agreed, is a crystal clear one: cheat and you will be caught. And, the penalties can be stiff.
"They're liable for the amount of the deduction the person was allowed, plus a civil penalty equal to 10% of the additional taxes due," Stanley said.
That's in addition to fines that may be assessed for delinquent payment of property taxes.
The goal is simple: honest mistake, or intent to defraud, county leaders want every homeowner to pay their fair share.
"We can go back up to three years to check. And, we'll go after them all," said Mullen.
Posted by Marcia Oddi on August 27, 2009 03:54 PM
Posted to Indiana Government
Ind. Gov't. - "Sex Registry Costs Increasing But Can't Be Cut "
That is the headline to this August 26th story by Patrick Fazio, available via MyWabashValley.com:
As local governments work to balance next year's budget, there's one part that's actually illegal to cut. This program only gets more expensive each year with no money to pay for it.Those increasing costs have Valley law enforcement worried.
"It's an unfunded mandate. That's a position we've caught ourself in many times that laws come down without the finances to enforce them." Vigo County Sheriff Jon Marvel says it costs a lot to maintain the Sex Offender Registry. "It started out first as a sexual registry. Anyone convicted of a sexual crime in nature against children."
But the website has expanded to included all sex offenders and violent criminals. They stay on there from 10 years to life.
"If somebody's convicted of a violent sexual offense, we have to check on that individual six times during the year to make sure he says he's where he's registered to be," says Marvel who points out that the sex offender laws don't give counties any money to hire someone to check on the criminals and update the registry. "Prior to the registry, that officer that we have assigned to it now was assigned solely to the Drug Task Force."
Not only does the registry take time away from other duties, but it only gets busier as more offenders get released from prison.
"That particular officer then has to go out to the house, knock on the door and make sure he lives there. And that's just one individual that registered on that registry," Marvel says.
Posted by Marcia Oddi on August 27, 2009 02:39 PM
Posted to Indiana Government
Ind. Decisions - An interesting non-Indiana opinion today from 7th Circuit
In Federal Trade Commission v. Kevin Trudeau (ND Ill.), a 55-page opinion, Judge Tinder writes:
If you have a problem, chances are Kevin Trudeau has an answer. For over a decade, Trudeau has promoted countless “cures” for a host of human woes that he claims the government and corporations have kept hidden from the American public. Cancer, AIDS, severe pain, hair loss, slow reading, poor memory, debt, obesity—you name it, Trudeau has a “cure” for it. To get his messages out, Trudeau has become a marketing machine. And the infomercial is his medium of choice. He has appeared in dozens of them, usually in the form of a staged, scripted interview where Trudeau raves about the astounding benefits of the miracle product he’s pitching. But Trudeau’s tactics have long drawn the ire of the Federal Trade Commission (“FTC”). By promoting his cures, Trudeau claims he is merely exposing corporate and government conspiracies to keep Americans fat and unhealthy. But the FTC accuses Trudeau of being nothing more than a huckster who preys on unwitting consumers—a 21st-century snake-oil salesman. For years Trudeau has dueled with the FTC in and out of court.Trudeau’s latest run-in concerns his cure for weight loss, which he explains in his book, The Weight Loss Cure “They” Don’t Want You to Know About. By the time Trudeau began promoting the book, courts had sharply curbed his marketing activities. A consent decree banned Trudeau from appearing in infomercials for any products, except for books, provided that he did not “misrepresent the content of the book.”
That proviso forms the basis for this latest lawsuit. The FTC claimed that Trudeau’s Weight Loss Cure infomercial misled consumers by describing a weight loss program that was “easy,” “simple,” and able to be completed at home, when in fact it was anything but. The program requires a diet of only 500 calories per day, injections of a prescription hormone not approved for weight loss, and dozens of dietary and lifestyle restrictions. The district court sided with the FTC, concluded that Trudeau had misrepresented his book, and held Trudeau in contempt. As sanctions, the court ordered Trudeau to pay $37.6 million and banned Trudeau from appearing in any infomercials, even for books, for the next three years.
Trudeau appeals everything. He argues he should not have been held in contempt because he merely quoted his book and expressed his opinions. And he contends that the court’s sanctions were not appropriate for civil (as opposed to criminal) contempt proceedings. We disagree with Trudeau about the contempt finding—he clearly misrepresented the book’s content—but we are troubled by the nature of both the $37.6 million fine and the infomercial ban. So we must remand those aspects of the court’s judgment.
Posted by Marcia Oddi on August 27, 2009 01:10 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Courts - "Marion County Clerk’s office now accepting credit cards"
From a press release:
INDIANAPOLIS – Marion County Clerk Beth White announced today that the Clerk’s office is now accepting credit and debit cards for most court fees.In addition to accepting credit cards for traffic violations or cash bonds, customers can now pay the following using their credit or debit card: child support, case filing, probation fees, marriage license and copy fees. These payments are accepted from 8 a.m. to 4:30 p.m., Monday through Friday in room W-123 of the City County Building.
“Today, customers expect flexible options wherever they make payments or purchases,” Clerk White said. “We are pleased to expand our payment options to include credit and debit cards to make paying court fees and fines more convenient for our customers.”
Besides the expanded in-office payment options, customers can also pay child support and traffic tickets online or over the phone using a credit/debit card any time they wish. Bond payments are accepted around the clock at the Arrestee Processing Center with the additional option to pay cash bonds with a debit/credit card. A nominal convenience fee is added to cover the cost of processing all credit/debit card payments whether made in the office, online or over the phone.
Posted by Marcia Oddi on August 27, 2009 01:06 PM
Posted to Indiana Courts
Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
In In the Paternity of C.B. & C.R.; J.R. v. M.B. (NFP), a 24-page opinion, Judge Brown writes at p. 21:
We cannot say that Father intended to give Mother a gift where the testimony of both Mother and Father reveals that the $1,500.00 payment was made in connection with a support agreement that was being discussed even if the agreement was never consummated in its entirety.[6]In Mark P'Pool v. Indiana Horse Racing Commission (NFP), a 16-page opinion, Judge Robb writes:In summary, we conclude that the trial court's decision not to reduce Father's total arrearage by $1,500.00 was clearly erroneous and instruct the trial court to modify Father's total arrearage to reflect Father's previous payment of $1,500.00 to Mother.
_________
[6] We also acknowledge that an obligated parent will not generally be allowed credit for payments not conforming to the support order. Decker v. Decker, 829 N.E.2d 77, 79 -80 (Ind. Ct. App. 2005) (citing Kaplon v. Harris, 567 N.E.2d 1130, 1133 (Ind. 1991)). However, Indiana courts have recognized the following exceptions to this general rule: “(1) payments made directly to the mother, (2) payments made via an alternative method agreed to by the parties and substantially complying with the existing decree, (3) payments covered when the non-custodial parent takes custody of the children with the other parent's consent, and (4) payments made toward the funeral expenses of a child.” Id. (emphasis added); see also Payson v. Payson, 442 N.E.2d 1123, 1129 (Ind. Ct. App. 1982) (holding, where the father was ordered to make child support payments directly to the clerk of the court but instead made payments directly to the mother and to third parties for rent, that “[i]n a situation where, as here, the parties have agreed to and carried out an alternate method of payment which substantially complies with the spirit of the original support decree, we find it would be unfair to refuse to credit the non-custodial parent simply because the payments were not made through the clerk.”) Here, according to Father and Mother's testimony, the $1,500.00 payment was made directly to Mother by Father. Hence, even if the payment was a non-conforming payment, Father may be credited for the payment because he made the payment directly to Mother.
Mark P’Pool appeals the trial court’s order affirming the decision of the Indiana Horse Racing Commission (“IHRC”), which imposed a six-year suspension and $30,000 fine upon P’Pool for violations of IHRC rules. For our review, P’Pool purports to raise a single issue, whether he was denied due process during the IHRC proceedings, based on nine alleged errors delineated below. Concluding the IHRC’s decision is supported by substantial evidence, the penalty imposed is not excessive or arbitrary, P’Pool was not denied due process, and the ALJ did not improperly exclude evidence, we affirm.NFP criminal opinions today (4):
Efren R. Diaz v. State of Indiana (NFP)
Essu E. Brunson v. State of Indiana (NFP)
Abdullah Alkhalidi v. State of Indiana (NFP)
Marquise Miller v. State of Indiana (NFP)
Posted by Marcia Oddi on August 27, 2009 11:02 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Another NFP COA decision reclassified
The case is Carla Cunningham v. Review Board - NFP opinion issued 6/18/09; Appellee's motion for publication filed 7/16/09; Appellant's petition for rehearing received 7/20/09 - lacks certificate of service; Appellant's petition for rehearing with certificate of service 7/31/09; Ordered published 8/19/09; Appellant's petition for rehearing denied 8/28/09..
From the opinion: "Appellant-petitioner Carla Cunningham appeals the decision of the Indiana Unemployment Insurance Review Board (Review Board) dismissing her appeal as untimely. Finding no error, we affirm."
Posted by Marcia Oddi on August 27, 2009 10:30 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "Time might not be on Delaware County Prosecutor Mark McKinney's side"
So announces the Muncie Star-Press in what appears to be a "teaser" leading to an "in print only" story. It continues:
And neither is an ex-colleague who hopes to win McKinney's job in the 2010 county election.Supporters of the beleaguered prosecutor are presumably praying the Indiana Supreme Court acts soon on a proposed deal -- stemming from a disciplinary complaint filed by Mayor Sharon McShurley -- that calls for McKinley's license to practice law to be suspended for 90 days.
It's been 111 days since that proposed settlement was submitted to the Supreme Court for its consideration.
If the court does not act in the case in the relatively near future -- and presuming it accepts the 90-day suspension, now seen as a best-case-scenario for McKinney -- the prosecutor could face the grim prospect of mounting a re-election campaign while under a suspension.
Posted by Marcia Oddi on August 27, 2009 08:54 AM
Posted to Indiana Courts
Ind. Courts - Anonymous letter causes Knox County judge to step down from case
Jenny Peter of the Vincennes Sun-Commercial has a lengthy report re Knox County Superior Court Judge Tim Crowley's decision. Some quotes:
Judge Tim Crowley announced has removed himself from the ongoing case between the city and the owners of the Executive Inn.Crowley says he is choosing to “disqualify and recuse” himself from the case because of a letter circulated by mail on or around Aug. 20 that Crowley called a “vicious and defamatory attack” on him.
The Sun-Commercial did receive a copy of the letter, which was unsigned and had no return address.
The page-long letter jumps back and forth between harshly criticizing the city’s elected officials, although none are named specifically, and Crowley. The writer accuses the city of wanting to seize the hotel for its own monetary gain and accuses Crowley of, among other things, helping the city in its task.
Mayor Al Baldwin has publicly denied such allegations.
John Bodine, the attorney for the hotel’s owners, James and Mark Valdes, said neither he nor his clients had anything to do with the writing or sending of the letter.
“This is a travesty,” Bodine said. “Whoever issued that letter, the act was shameful, and I think Judge Crowley had every reason to be upset.”
“Certainly (the letter) did not come from any of our people,” he said. “I think it’s a shame, and I’ve actually been directed by my clients to ask the judge to reconsider his action and to remain the presiding judge.”
Crowley said he thought the letter undermined his efforts in the case and made unnecessary and untrue personal attacks.
“This anonymous mailing attacked the sitting judge on a personal and professional level and maliciously and deliberately sought to damage the judge’s name and reputation,” he writes.
Posted by Marcia Oddi on August 27, 2009 08:43 AM
Posted to Indiana Courts
Wednesday, August 26, 2009
Ind. Decisions - Costs assessed in Hawkins/Broyles disciplinary cases
Updating earlier ILB entries, the Indianapolis Star reports today:
The Indiana Supreme Court has ordered a Marion Superior Court judge and a former appointed master commissioner to pay nearly $18,000 in costs for their disciplinary proceedings.The disciplinary actions arose from the court's mishandling of an order setting aside a man's rape conviction, delaying his release from prison for a year or longer.
Judge Grant Hawkins, who finished serving a 60-day unpaid suspension in May, must pay about $10,500 to cover his share of the fees and expenses for the inquiry, according to an order issued Friday.
The rest, about $7,400, was assessed to retired Master Commissioner Nancy L. Broyles. She had handled the case in question and agreed never to serve in a judicial capacity again.
Posted by Marcia Oddi on August 26, 2009 04:35 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Supreme Court denies transfer in Child Services expedited review
In the opinion in D.S. v. State of Indiana, issued August 10th, Judge May wrote:
The Indiana Department of Child Services (“IDCS”) seeks expedited review, pursuant to Indiana Appellate Rule 14.1, of the Madison Superior Court’s modified dispositional order placing D.S., a juvenile adjudicated to be a delinquent, in an out-of-state shelter care facility contrary to the IDCS’s placement recommendation. We affirm. * * *In this Order, issued August 24th, the Supreme Court unanimously denies the IDCS's petition to transfer.The court concluded IDCS’s placement recommendations were contrary to D.S.’s best interests. It placed D.S. in the Rite of Passage program and supported its order with specific factual findings based on ample evidence of D.S.’s history of drug abuse, gang affiliation, and expulsion from school, D.S.’s athletic and leadership abilities, his family relationships, his wishes and those of his mother, and the Probation Department’s formal recommendation. The trial court’s findings support its placement decision. We therefore cannot conclude that the trial court committed clear error in ordering that D.S. be placed in the Rite of Passage program.
Chief Justice Shepard adds to the transfer a statement on the new expedited review procedure:
This expedited appeal procedure was crafted through superb collaboration by all three branches of our government to provide protection from potential excessive spending in placement of abused, neglected, or delinquent children. Through the first eight months of this undertaking, two such appeals have reached us. * * *The earlier expedited review case was D.M. v. State of Indiana, from June 10th. In both cases, the trial judge's decision re placement was affirmed.In this case, the trial judge has been appealed for choosing the least expensive placement.
The Department has urged that the judge be commanded to place the child in one of several Indiana facilities, the cheapest of which will cost 50% more per day than the one in Arizona which all the remaining players, including the Prosecuting Attorney, think can provide the best chance to divert the juvenile from delinquency to a more successful life. That is, after all, the point of government intervention.
I stand fully ready to smack down anything that even sniffs of judicial overreaching or overspending. But if the appeals we have seen so far represent the worst instances of attacks on the public fisc, it suggests to me that judges, prosecutors, probation departments, and guardians are acting very responsibly.
Not only has there been dispute about which branch of government has ultimate authority in these placement issues, but also about what level of government must pay the expenses of out-of-state placements. In this regard, see this ILB entry from August 10th, headed "Apparently there are all sorts of surprises in the special session budget," discussing a footnote in D.S. about a new change in the language re the responsibility of the IDCS for to pay for placements outside Indiana.
Posted by Marcia Oddi on August 26, 2009 03:30 PM
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Transfer Lists
Courts - changes in store for PACER?
The Blog of Legal Times reports this afternoon:
The Administrative Office of the United States Courts announced Monday that they are beginning a year-long “comprehensive program assessment” of the Public Access to Court Electronic Records system, the 21-year-old Web portal for perusing federal court documents. The office is asking users for input, and say everything about the system is up for discussion — including whether it should continue to charge for its services.Recall this ILB entry from March 1, linking to Senator's Lieberman's letter to the judge chairing the Committee on Rules of Practice and Procedures of the Judicial Conference of the United States.“All aspects of PACER are in bounds if users want to discuss them,” said Administrative Office spokesman Richard Carelli.
Posted by Marcia Oddi on August 26, 2009 02:58 PM
Posted to Courts in general
Courts - "This is the most free-wheeling, 'look ma no hands' legal decision I've read in a long time" [Updated]
That is a quote from George Washington law prof Orin Kerr, who has just posted this entry to The Volokh Conspiracy, headed "Ninth Circuit Enacts Miranda-Like Code for Computer Search and Seizure." He begins:
The Ninth Circuit's new computer search and seizure decision in United States v. Comprehensive Drug Testing is a truly astonishing decision. The majority opinion, by Judge Alex Kozinski, announces a laundry list of brand-new rules, introduced with no citations to any authority, that henceforth the government must follow when executing warrants for digital information. I can't recall having read anything quite like it, although it does bring to mind Miranda v. Arizona.[Updated 8/27/09] More from Prof Kerr here.
See also this article today by Dan Levine of The Recorder, headed "9th Circuit Sets Doctrine for Electronic Searches, Finds Steroids Case Search Unlawful." It begins:
The Justice Department's aggressive steroids probe has led the 9th U.S. Circuit Court of Appeals to enunciate a new set of Fourth Amendment protections for the digital age.In an en banc opinion Wednesday that split conservatives on the court, Chief Judge Alex Kozinski said federal agents were wrong to seize swaths of drug test results from labs in Nevada and California. The computer files taken by the government revealed information about far more people -- including professional baseball players and others -- than allowed by a search warrant.
Posted by Marcia Oddi on August 26, 2009 02:09 PM
Posted to Courts in general
Courts - More on: "Federal Judges Given Guidance on Web Sources"
Updating this ILB entry from August 23rd, a reader has sent me the document which, as the cited article stated:
The Judicial Conference of the United States has sent the chief judge in every federal district five pages of "suggested practices" on the subject.Access it here.
Posted by Marcia Oddi on August 26, 2009 01:46 PM
Posted to Courts in general
Courts - "Kentucky court strikes down reference to God in state law"
Stephene Steitzer of the Louisville Courier Journal reports today in a story that begins:
FRANKFORT, Ky. — A Franklin circuit judge Wednesday declared unconstitutional a reference to God in a 2006 law creating the Kentucky Office of Homeland Security.
AdvertisementIn an 18-page order, Judge Thomas Wingate said the General Assembly created an official government position on God when it passed a law requiring the office to acknowledge “the dependence on Almighty God as being vital to the security of the Commonwealth.”
Wingate said it is clear that the purpose of the language wasn't to celebrate the historical reasons for “our great nation's survival in the face of terror and war,” but instead declared publicly that the position of the state was that an “Almighty God exists and that the function of that God is to protect us from our enemies.”
“The Commonwealth's history does not exclude God from the statutes, but it has never permitted the General Assembly to demand that its citizens depend on Almighty God,” Wingate wrote.
Posted by Marcia Oddi on August 26, 2009 12:13 PM
Posted to Courts in general
Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)
For publication opinions today (1):
Randall Bonewitz and Russell Dellinger v. Ted Parker - see expanded ILB entry here.
NFP civil opinions today (1):
NFP criminal opinions today (2):
Thomas A. Smith, Michael J. Heffern, Tina L. Whiting, Addison R. Pijnapples, and Roderick Berry v. State of Indiana (NFP) - This is an interlocutory appeal from the Jay County Circuit Court, Honorable Brian D. Hutchison. Judge Bradford writes:
Appellants/Defendants Thomas Smith, Michael Heffern, Tina Whiting, Addison Pijnapples, and Roderick Berry (collectively, “Appellants”) bring this consolidated interlocutory appeal from the trial court's denial of their motions for a change of judge. Appellants contend that the trial court erred in denying their motions for a change of judge because certain statements allegedly made by the trial judge suggest that the trial judge was biased or prejudiced against the Appellants. We affirm.Tyon L. Easley v. State of Indiana (NFP)
Posted by Marcia Oddi on August 26, 2009 11:08 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - COA decides environmental nuisance case today
There are also a number of NFP opinions today, but this "for publication" opinion will be treated individually.
In Randall Bonewitz and Russell Dellinger v. Ted Parker, a 13-page opinion, Judge Najam writes:
Randall Bonewitz and Russell Dellinger appeal from the trial court's judgment on their complaint alleging that Ted Parker is maintaining a nuisance by operating a furnace to dry mycelium adjacent to their home. The trial court found that “improvements” Parker has made to the operation have “greatly reduced” the adverse effect of Parker's mycelium-drying business on the home, and the court declined to enter a total permanent injunction against the business. We conclude that notwithstanding the improvements, Parker continues to maintain an unabated nuisance which deprives Bonewitz and Dellinger of the free use and comfortable enjoyment of their property.All emphases added by ILB. The opinion continues:
In 1997, Bonewitz and Dellinger bought an old farm house on approximately one-half acre in North Manchester. Parker owns the surrounding farm land, which, at the time Bonewitz purchased the farm house, Parker used for farming hay. But in 2003, Parker started a new business called Parker By-Products, a business which dries wet mycelium to be sold for use in animal feed. Mycelium is a byproduct of the manufacture of food-grade citric acid. In order to dry mycelium, Parker built a furnace, which uses sawdust as fuel. The drying process creates emissions that include gases and sawdust ash. Those emissions are discharged from a smoke stack on the furnace, which is located approximately 100 to 150 feet from the Bonewitz home.Two points:When Parker started the business, he obtained a variance from agricultural use to business/commercial use from the Wabash County Board of Zoning Appeals, over the objections of Bonewitz and Dellinger. Parker By-Products operates as follows: up to three to five semi tractor-trailers per day deliver wet mycelium to Parker's facility; sometimes, the wet mycelium sits outside in the sun and emits a stench; trucks deliver sawdust to Parker's facility; initially the sawdust was dumped outside, but Parker has since extended a pole building to accommodate dumping inside; the sawdust is burned to heat the dryer, which dries the mycelium; and trucks pick up the dried product and haul it away. When it is operational, the business generally runs “24/7.”
Bonewitz and Dellinger's enjoyment of their home has been substantially affected by Parker's business operation in numerous ways: emissions of smoke and/or steam surround the house; a “rotten, sour” smell permeates the house and clings to fabrics; a “nauseating” odor comes from the drying process, similar to that of “a rendering plant when they're burning dead animals,” ; sawdust blows onto the Bonewitz property and covers everything; when the dryer is running, Bonewitz and Dellinger can feel strong vibrations that cause the house to shake; and trucks come and go everyday and at all hours of the night, disturbing Bonewitz and Dellinger in their sleep. Because of the foul odor and sawdust, Bonewitz and Dellinger avoid going outside, keep their windows closed, and do not have the unrestricted use of their yard or swimming pool. Parker has taken steps to reduce the sawdust and stack emissions blowing onto the Bonewitz property, to minimize the vibrations caused by the dryer, and to ameliorate the noise and lights associated with the trucks during the night.
On October 10, 2007, Bonewitz and Dellinger filed a complaint alleging that Parker's mycelium-drying operation constitutes a nuisance. Bonewitz and Dellinger sought a permanent injunction or, in the alternative, damages. Following an evidentiary hearing, the trial court declined to enter a total permanent injunction, but ordered that Parker be permanently enjoined from unloading sawdust outside of the pole building. The trial court did not award damages. This appeal ensued. * * *
Indiana Code Section 32-30-6-6 defines a nuisance as whatever is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property. * * *
Here, the undisputed evidence shows that Bonewitz and Dellinger have suffered a number of unreasonable infringements on the use and enjoyment of their property as a result of Parker's business. * * * While the nuisance may have been partially ameliorated, it has not been abated. * * *
The issue here is the off-site impact of infringements from a new business inserted into the neighborhood and whether that impact would offend persons of ordinary sensibilities.
Parker contends that Bonewitz and Dellinger bought their farmhouse knowing that they were in the middle of an agriculturally-zoned area, and he alleges that they “came to the nuisance in the sense that the complaints they have are comparable to the complaints of anyone experiencing any discomfort by any agricultural operation.” Parker also notes that one who moves to an agricultural area simply cannot complain of discomfort based upon agricultural uses. And Parker asserts that Bonewitz and Dellinger purchased a farmhouse in the middle of a farming area but do not want to experience “the normal residual effects of farming.”
But Parker's premise is flawed because Parker By-Products is a separately organized business and not an agricultural use. It is for that very reason that a variance was required.* * * As this court has recognized, not all activities with an agricultural nexus are themselves agricultural. * * *
Here, it is readily apparent that the Parker By-Products “feed business” is a separately organized activity and is, therefore, not an agricultural pursuit. * * *
In requesting that we affirm the trial court's judgment, Parker relies in part on this court's opinion in Wendt v. Kerkhof, 594 N.E.2d 795 (Ind. Ct. App. 1992), trans. denied. In Wendt, we affirmed the trial court's judgment in favor of a hog farmer where the plaintiff filed a complaint alleging a nuisance due to odors from the farm. We observed that “much conflicting evidence was presented, both from experts and nearby landowners” regarding the odors. * * *
In this case, however, the evidence is uncontradicted that offensive odors envelop and permeate the Bonewitz home. While the evidence shows that Parker has taken steps to reduce the effects of noise and dust emanating from his business, the evidence also shows that noise and offensive odors continued to infringe upon and obstruct the free use of their property. * * * As a result, Bonewitz and Dellinger live with the regular onslaught of noise, dust, and odors, which offend the senses, obstruct the free use of their property, and interfere with their comfortable enjoyment of life and property. See I.C. § 32-30-6-6. Thus, the evidence leads only to the conclusion that the nuisance continues unabated, and we are left with the firm conviction that the trial court erred when it declined to grant the relief sought. * * *
But that is not the end of our inquiry. The trial court's judgment addressed Bonewitz's request for a permanent injunction and expressed concern that such equitable relief “would effectively destroy” Parker's business. We share the trial court's concern. * * *
An injunction will not issue where the law can provide a full, adequate and complete form of redress. Id. Here, the trial court did not address Bonewitz and Dellinger's request, in the alternative, for damages. * * *
On remand, we instruct the trial court to determine first whether Bonewitz and Dellinger can be made whole with a money judgment. If so, the trial court shall consider the evidence of Bonewitz and Dellinger's damages. The measure of damages is not restricted to the diminution in rental value. * * *
A proper measure of damages shall be calculated as the difference between the market value of the Bonewitz home if the Parker By-Products mycelium-drying operation ceased and its current market value with an active nuisance next door. * * * Further, Bonewitz and Dellinger presented evidence, and the trial court found, that they have been “disturbed and annoyed” by Parker's business, and they may also be entitled to damages for their discomfort and annoyance as occupants. * * *
On remand, if the trial court decides to award damages in lieu of a permanent injunction, the court shall conduct a hearing solely on the issue of damages, giving the parties an opportunity to present additional evidence on that issue. If, however, the trial court determines that Bonewitz and Dellinger cannot be made whole with a money judgment, then the court shall issue a total, permanent injunction against Parker prohibiting operation of his mycelium-drying business.
(1) The opinion stresses that this is not an agricultural operation. This distinguishes the mycelium-drying business from a confined feeding operation.
(2) The nuisance statute, IC 32-30-6-6, is cited twice by the court. IC 32-30-6-9, the "right to farm" section, is not cited at all. Take a look at it. And look also at this June 6th ILB entry, and at fellow attorney Marty Lucas' comments at the end of the entry.
Posted by Marcia Oddi on August 26, 2009 10:05 AM
Posted to Environment | Ind. App.Ct. Decisions
Courts - One of the federal trial judges in the 7th Circuit is reportedly not taking new criminal cases
"U.S. judge Stadtmueller not taking new criminal cases" is the headline to this lengthy story by John Diedrich of the Milwaukee Journal Sentinel, dated August 23rd. Some quotes:
A federal judge in Milwaukee has stopped taking new criminal cases and is passing off cases he already had in a move legal experts are calling highly unusual and perhaps unprecedented nationally.The changes come after U.S. District Judge J.P. Stadtmueller got into a high-profile dustup with prosecutors, and his moves are likely to lead to delays in other judges' courts.
Federal judges, who make $174,000 a year and have lifetime appointments, spend about half their time on criminal cases, which take precedence over civil lawsuits, experts said.
Stadtmueller has not taken any new criminal cases since July 22, while his three Milwaukee colleagues received all 16 new criminal cases with 48 defendants, according to court records.
Stadtmueller also recused himself on at least a half-dozen criminal cases, sending those to the same judges. He has not passed off all his criminal cases, and it is unclear whether he will, though officials said they expect more cases to be moved.
Stadtmueller has not explained in writing what he is doing and did not return repeated calls from the Journal Sentinel. His brief recusal orders cite law saying judges must pass off a case if they give an opinion on it.
Legal experts say that, without more explanation, it is impossible to figure out why Stadtmueller is recusing himself. Whatever the reason, his position will cause problems for other judges, they said. * * *
Stadtmueller's moves come after the U.S. attorney's office in Milwaukee took the rare move of challenging him at the 7th Circuit U.S. Court of Appeals in the spring. Prosecutors accused Stadtmueller of showing bias in a 2005 gun case and breaking federal rules by suggesting they strike a plea deal in it.
Underlying that dispute was a concern by Stadtmueller - and shared by other judges - about the kind of cases coming into federal court. Because of congressional changes, federal court has shifted from mostly complex white-collar and organized crime to more low-level drug, gun and child pornography cases.Stadtmueller wondered how this gun case had taken so much court time and why it was in federal court in the first place. The simple case was hung up by a plea change and several appeals. The government said those comments showed Stadtmueller was biased and he should recuse himself. Stadtmueller fired back that the government was "judge-shopping."
Posted by Marcia Oddi on August 26, 2009 09:05 AM
Posted to Courts in general
Ind. Law - "Investigators are also trying to locate an edition of the Auto Trader from June 20, 1991 with a listing for a blue van with high mileage for $1,500"
This is why librarians archive materials, even those that seem unlikely. But too often, this does not happen. And the problem is much worse with digital publications. How long do / will online publications, including the news channels, preserve their digital records?
From a story last evening on The Indy Channel, 6NEWS:
INDIANAPOLIS -- An inmate in North Carolina could hold the key to solving the killing of an Indianapolis woman nearly two decades ago. * * *Investigators are also trying to locate an edition of the Auto Trader from June 20, 1991 with a listing for a blue van with high mileage for $1,500. Police said they believe the ad may put Hall in Indianapolis at the time of Dewey's killing.
The ownership of the publication has changed since 1991, and police said they cannot find an archived copy.
"That is a potential piece of this jigsaw puzzle that could help to provide a link in building a case," Spurgeon said. "The information that we're getting right now, and the proactive stance the detectives have been taking, is leading us to believe that we may be able to solve the case."
Posted by Marcia Oddi on August 26, 2009 08:55 AM
Posted to Indiana Law
Ind. Gov't. - Rockies Express Pipeline apparently renigs on Indiana agreements
As this June 27th ILB entry began:
The ILB has posted a number of entries about the construction of the Rockies Express Pipeline across the state and the related lawsuits.On August 19th John Estridge, editor of The Brookville News, published this story:
County officials from across Indiana are banding together with one thought in mind, holding the fire to REX [Rockies Express Pipeline] officials’ feet.[Hat tip to Indiana Legislative Insight]Apparently, REX is not going to honor any of its road maintenance agreements with any of the counties in Indiana.
That was the topic of discussion by officials from Decatur, Shelby and Franklin counties at the Franklin County Commissioners’ meeting Monday morning. And that may mean the county is out a couple of million dollars.
REX constructed a 42-inch high pressure natural gas pipeline from Colorado to Ohio’s eastern border. It went through the width of Franklin County south of Brookville and north of Batesville. REX is currently pumping natural gas through the pipe.
Kem Anderson, highway superintendent for Shelby County, and Mark Mohr, highway superintendent for Decatur County, attended the Franklin County Commissioners meeting. They were there hoping for a chance to talk to REX officials.
REX officials were scheduled to be at the meeting to discuss Franklin County’s road maintenance agreement. REX officials and county officials toured the county on Wednesday, July 29, to view the county’s damaged roads from the construction process.
An engineer from CRIPE Engineering hired by REX was supposed to draw up an engineering report and present it at Monday’s meeting.
However, REX officials, through a message from Franklin County Attorney Gene Stewart, said they would not attend the public meeting and wanted to meet at another time in private with the commissioners.
“They don’t want to meet with us in public, that’s bullcrap,” commissioner Tom Wilson said.
That is when Mohr from Decatur County spoke up.
“We have some major concerns,” Mohr said. “They’re dragging their feet. We all need to join forces, put our heads together and go after their bonds.”
Mohr said the Decatur County attorney began the paperwork for taking REX’s bond, it is $2 million with each county, but then REX showed up and drove the county with the Decatur County officials.
“It gave us hope,” Mohr said. “I heard they were going to meet with you guys, and I could get a jump on it and see how you guys were going to react to it.”
Anderson said Shelby County is getting the run around. Johnson County is in the same situation.
Franklin County Commission President Eric Roberts said he knows the son of a Putnam County commissioner, and that county is having the same problems with REX.
Commissioner Don Vonder Meulen suggested the people that were at Monday’s meeting get together later and have another meeting on the situation.
Instead, the officials then spent some time at Monday’s meeting discussing what steps are involved in taking the bonds REX has in place. Roberts said he has asked the question before, and he is not sure of the process.
Officials acknowledged REX could fight the process in federal court. “They know federal court is going to cost us a ton of money,” Wilson said.
Wilson said all county officials and residents in the counties should contact their Congressmen, Senators and Gov. Daniels. “We need to have a town hall meeting with Obama,” Wilson said.
The hope is concerted action by the counties will make REX honor its road maintenance agreements with the counties without everything going into litigation.
“If nothing else, maybe this will scare them into doing something,” Wilson said. “Our attorney will get with the other (county) attorneys and make one big effort.”
The problems for all the counties are while the process is ongoing, the clock on when paving can be done is ticking, and all the counties are facing the same financial problems. Franklin County is probably in the worst position of all the counties, however.
Mohr said the state highway department is beginning to let loose of the federal stimulus money on road projects, meaning large asphalt companies will be busy with major projects and will not want to deal with the relatively small projects each county will have from the REX damage.
Also, if REX would pick one contractor to fix all the damages of all the counties, then how long will that take across the state, he asked.
Then, there is the steady ticking of the clock. “The problem is we’re 45 days from cold weather,” Mohr said. “The situation we have now is we don’t have enough cash to go out and spend $1 million and hope they pay us back.”
“Neither do we,” Roberts said. “We just talked about $400,000 (flood damage to roads and bridges). The tax bills were late and motor vehicle (funding) is low. We’re all in the same boat.”
Jon Leach with O’Mara Paving estimated it would take between $3 to $4 million to fix Franklin County’s roads. REX’s bond is just $2 million.
“We have 27 miles of pipe,” Roberts said. “No other county has as much roads (negatively affected).”
Franklin County Highway Department District One Foreman Chester Ball summed up the unfair quality about the whole situation. “It’s very upsetting that they’re not here,” Ball said. “The engineer said he’d get back with us in one week. Now it’s three (weeks). They got what they wanted. The gas is flowing.”
Posted by Marcia Oddi on August 26, 2009 08:30 AM
Posted to Indiana Government
Environment - Superfund site in Evansvlle; Indianapolis wins judgment for cleanup costs
From the August 23rd Evansville Courier & Press, this story by Mark Wilson. It begins:
Some of Evansville's oldest and poorest neighborhoods are on the verge of becoming a Superfund site targeted for a widespread cleanup of soils contaminated with lead from the smokestacks of factories long gone.From a press release issued yesterday by the Indianapolis mayor's office:But children there will remain at risk because of the area's aging homes even after the cleanup is complete.
The risk of lead poisoning there, and in other parts of the city, too, is probably just as great from exposure to the lead-based paint in older housing, said Dwayne Caldwell, environmental health specialist with the Vanderburgh County Health Department.
But persuading parents to have their children tested has been an uphill battle.
The City of Indianapolis succeeded in its first step to secure repayment of millions of taxpayer dollars used to clean up a contaminated eastside Brownfield site. An August 20th judgment secured against the Ertel Manufacturing Corporation found the company caused or contributed to environmental contamination at their former site on Dr. Andrew J. Brown Avenue. The case will now proceed with a determination of damages, estimated by the City to be more than $5 million. * * *Before the City cleaned up the Ertel site, it contained significant amounts of contamination and an abandoned factory. To date, the City has spent more than $5 million to remove tons of contaminated soil and to protect the Martindale-Brightwood neighborhood from contamination. In the court's ruling, it found that Ertel is liable to the City for these costs.
Today, the reclaimed property is an expansion site for Major Tool & Machine. The clean-up efforts allowed Major Tool & Machine to keep more than 250 jobs in Indianapolis and extend its operation.
Posted by Marcia Oddi on August 26, 2009 08:20 AM
Posted to Environment
Tuesday, August 25, 2009
Ind. Law - More on "Attorney William Crabtree II, facing trial, found dead in Dyer home"
Updating this ILB entry from earlier today, Dan Hinkel of the NWI Times has a comprehensive article on Mr. Crabtree. Some quotes:
Before his career dissolved, Crabtree ran his one-lawyer practice in an office along Indianapolis Boulevard in Schererville, representing clients in civil lawsuits. His name is still posted on the sign at the gleaming office building, although his former office is now empty.He also gave time to local nonprofit groups including the Campagna Academy. He once served as president of the Hoosier Boys Town Foundation, the funding group for Campagna's precursor. He also served on the board of the Partnership for a Drug Free Lake County.
Crabtree's criminal case stemmed from an alleged scheme involving clients' tax payments and land deals. Federal authorities said that in September and October 2007, the daughter of a dead man gave Crabtree checks worth $394,636 to pay taxes on her father's estate. But Crabtree changed the name on the checks and kept the money, then forged receipts and e-mails to illustrate tax payments he didn't make, according to the charges.
Posted by Marcia Oddi on August 25, 2009 06:25 PM
Posted to Indiana Law
Environment - "Angola City Council approves Univertical cleanup agreement"
The ILB has had a long list of entries on this issue. Today Jim Measel of WTHD 105.5 (NE Indiana) reports:
ANGOLA - The Angola City Council approved a 19-page agreement between the city and Univertical on Monday night which will cover the environmental clean-up work at the former Dana-Weatherhead site.Attorney Melina Kennedy from the law firm of Baker and Daniels said the agreement includes an eight year commintment for Univertical to stay in Angola. It also releases Univertical from any further liability.
Univertical has agreen to contribute $1 million towards contamination remediation plan.
To help pay for the clean up and improvements to the city's sewer system, the Council passed an ordinance on third reading which increase monthly sewer rates for the average residential user by $2.88.
Local Option Income Tax money is being used by the city to help pay for the increase in the rates.
Ratepayers will probably see the increase in their October bills.
Posted by Marcia Oddi on August 25, 2009 03:33 PM
Posted to Environment
Ind. Courts - Federal criminal fraud case persists after defendants' deaths
Updating earlier ILB entries relating to the Gabriele murder-suicide, the AP's Charles Wilson has a story today reporting:
SOUTH BEND, Ind. — The government is pushing ahead with criminal fraud charges against an Indiana medical practice despite the apparent murder-suicide of the ophthalmologist and his wife, who were the main defendants.Attorneys for Gabriele Eye Institute PC argued that going to court without Dr. Philip and Marcella Gabriele would prevent the business from receiving a fair trial, but a judge ruled that their absence wouldn't irreparably harm the practice's defense against charges of health care fraud.
“While this court understands that the Gabrieles' absence will make it more challenging for GEI to present its defense, their absence won't result in a trial that is fundamentally unfair or violative of GEI's constitutional rights,” U.S. District Judge Robert L. Miller Jr. wrote.
According to the Aug. 18 order, neither Miller nor attorneys for either side were able to find any legal precedent for dropping a case against a corporation upon the deaths of the defendants whose actions prompted the charges. Prosecutors did cite several civil cases in which lawsuits continued in such circumstances, however.
Peter Henning, a visiting professor at the Indiana University School of Law in Indianapolis who teaches a course about white-collar crime, said he also was unaware of any similar situations involving criminal cases. But he likened it to situations in which witnesses disappear or refuse to testify.
“The fact that a witness is unavailable doesn't mean the case against you should be dismissed,” he said.
Henning said GEI might have faced a similar situation if the Gabrieles had taken the stand and invoked their Fifth Amendment rights against self-incrimination. * * *
GEI argued that its right to a fair trial would be hurt because the Gabrieles were the only people alleged to have taken part in fraud and the company couldn't defend itself effectively without them. It also said its defense would be harmed because of the inability to consult with the couple.
But prosecutors strongly disagreed, noting that GEI had been aware of the investigation for about two years and had had time to discuss the case with the Gabrieles.
“The Constitution entitles a defendant to a fair trial but it does not permit a defendant to avoid liability merely because two of the corporation's agents have purposefully absented themselves,” the government said in court documents.
Prosecutors hope to obtain restitution for hundreds of patients.
“GEI has substantial assets including real estate, equipment and accounts receivable that could justly be used to make restitution to the public and private insurers and hundreds of individual patients victimized by the Gabrieles and GEI,” federal prosecutors said in court documents.
Posted by Marcia Oddi on August 25, 2009 02:24 PM
Posted to Ind Fed D.Ct. Decisions
Law - Still more computer problems: Kentucky county's funds stolen by online hackers [Updated]
Be concerned. When the ILB posted this story July 27th from the Louisville Courier Journal about the theft of $415,000 of Bullitt County Kentucky's funds by Ukrainian hackers, it seemed an isolated incident.
Not so, according to this story today in the Washington Post, reported by Brian Krebs, and headed "European Cyber-Gangs Target Small U.S. Firms, Group Says." Some quotes:
Organized cyber-gangs in Eastern Europe are increasingly preying on small and mid-size companies in the United States, setting off a multimillion-dollar online crime wave that has begun to worry the nation's largest financial institutions.[Updated 8-26-09] See also this Washington Post "Security Fix" entry.A task force representing the financial industry sent out an alert Friday outlining the problem and urging its members to implement many of the precautions now used to detect consumer bank and credit card fraud.
"In the past six months, financial institutions, security companies, the media and law enforcement agencies are all reporting a significant increase in funds transfer fraud involving the exploitation of valid banking credentials belonging to small and medium sized businesses," the confidential alert says. The alert was sent to members of the Financial Services Information Sharing and Analysis Center, an industry group created to share data about critical threats to the financial sector. The group is operated and funded by such financial heavyweights as American Express, Bank of America, Citigroup, Fannie Mae and Morgan Stanley.
Because the targets tend to be smaller, the attacks have attracted little of the notoriety that has followed larger-scale breaches at big retailers and government agencies. But the industry group said some companies have suffered hundreds of thousands of dollars or more in losses.
Many have begun to come forward to tell their tales. In July, a school district near Pittsburgh sued to recover $700,000 taken from it. In May, a Texas company was robbed of $1.2 million. An electronics testing firm in Baton Rouge, La., said it was bilked of nearly $100,000.
In many cases, the advisory warned, the scammers infiltrate companies in a similar fashion: They send a targeted e-mail to the company's controller or treasurer, a message that contains either a virus-laden attachment or a link that -- when opened -- surreptitiously installs malicious software designed to steal passwords. Armed with those credentials, the crooks then initiate a series of wire transfers, usually in increments of less than $10,000 to avoid banks' anti-money-laundering reporting requirements. * * *
Businesses do not enjoy the same legal protections as consumers when banking online. Consumers typically have up to 60 days from the receipt of a monthly statement to dispute any unauthorized charges.
In contrast, companies that bank online are regulated under the Uniform Commercial Code, which holds that commercial banking customers have roughly two business days to spot and dispute unauthorized activity if they want to hold out any hope of recovering unauthorized transfers from their accounts.
Avivah Litan, a fraud analyst with Gartner Inc., said few commercial banks have invested in back-end technologies that can detect fraudulent or unusual transaction patterns for businesses.
"The banks spend a lot of money on protecting consumer customers because they owe money if the consumer loses money," Litan said. "But the banks don't spend the same resources on the corporate accounts because they don't have to refund the corporate losses."
Posted by Marcia Oddi on August 25, 2009 01:30 PM
Posted to General Law Related
Ind. Decisions - One Indiana 7th Circuit decision today; and an environmental decision of note
In U.S. v. Deloney (ND Ind., Judge Lozano), a 7-page opinion, Judge Bauer writes:
In 2007, Dwight D. Deloney pleaded guilty to possessing with intent to deliver crack cocaine and was sentenced to 87 months’ imprisonment. On appeal, Deloney claims that the sentence was unreasonable; he argues that the district court failed to give meaningful consideration to the statutory sentencing factors and, moreover, should have sentenced him according to the then-impending amendment to the Sentencing Guidelines, which later reduced the penalties for most crack cocaine offenses. We affirm.
The environmental law decision is U.S. v. Apex Oil, out of Illinois, a 12-page opinion by Judge Posner that begins:
Apex Oil Company appeals from the grant of an injunction, at the behest of the Environmental Protection Agency and on the authority of 42 U.S.C. § 6973 (a part of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901 et seq.), that requires Apex to clean up a contaminated site in Hartford, Illinois. In a 178-page opinion following a 17-day bench trial, the district judge made findings that millions of gallons of oil, composing a “hydrocarbon plume” trapped not far underground, are contaminating groundwater and emitting fumes that rise to the surface and enter houses in Hartford and in both respects are creating hazards to health and the environment. The judge deemed it Apex’s legal responsibility to abate this nuisance because the plume was created by an oil refinery owned by a corporate predecessor of Apex. Apex challenges these findings and conclusion, but the challenge has no possible merit.The principal question presented by the appeal is unrelated to the district judge’s findings and conclusions; it is whether the government’s claim to an injunction was discharged in bankruptcy and therefore cannot be renewed in a subsequent lawsuit—this suit.
Posted by Marcia Oddi on August 25, 2009 12:05 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)
For publication opinions today (1):
In In the Matter of the Paternity of J.J. v. Wess A.J. , an 11-page opinion, Judge Mathias writes:
Garnet S. (“Mother”) appeals the Carroll Superior Court's modification of physical custody of her minor child to Wess J. (“Father”). She raises two issues, but we address only the following dispositive issue: whether the trial court abused its discretion when it modified custody because of Mother's relocation without considering all of the factors as required under Indiana Code section 31-17-2.2-1(b). Concluding that the trial court was required to hear evidence on and consider all of the factors enumerated in section 31-17-2.2-1(b), we remand for proceedings consistent with this opinion. * * *NFP civil opinions today (0):The parties proceeded pro se at the custody hearing, and both failed to present evidence on each of the statutory factors. There is scant evidence in the brief record regarding the parties' respective financial circumstances. Moreover, the parties did not present evidence addressing the hardship and expense involved for Father to exercise parenting time and the feasibility of preserving the relationship between Father and J.J. through suitable parenting time.[3]
Because the record before us does not lead us to the conclusion that the parties or the trial court fully considered the enumerated factors listed in section 31-17-2.2-1(b), we remand this case to the trial court with instructions to conduct another hearing on Father's motion to modify custody and to hear evidence on each of the statutory factors. Absent exigent circumstances, the court shall order the parties to maintain the status quo pending the outcome of a new hearing.
______________
[3] We encourage parties facing issues involving the custody of children to obtain counsel to aid in the litigation of custody disputes. Because the court's order has such a profound effect on the lives of the parties and their children, we cannot emphasize enough the importance of presenting sufficient evidence and developing an adequate record.
NFP criminal opinions today (6):
Destin Quinn Bray v. State of Indiana (NFP)
William Andrews v. State of Indiana (NFP)
Jeremy H. Lee v. State of Indiana (NFP)
James Allen Lee v. State of Indiana (NFP)
Christopher Hampson v. State of Indiana (NFP)
D.D. v. State of Indiana (NFP)
Posted by Marcia Oddi on August 25, 2009 11:52 AM
Posted to Ind. App.Ct. Decisions
Law - "Fans Cannot Be Involved in Recruiting, but the Line Blurs"
Eric Prisbell and Steve Yanda have an interesting, and very long, story today in the Washington Post about "a growing concern in college basketball." Some quotes:
NCAA rules explicitly state that fans of teams cannot be involved in recruiting, but those regulations blur when the fan wears a media credential. Such credentials, which are issued by whatever entity is running a particular event, designate the bearers as media members, giving them access to prospects that even college coaches don't have during the all-important summer evaluation period. College coaches are not permitted to interact with prospects during the period.The same reporters had this story August 18th headed "Actions of Third Parties Can Muddy Basketball Recruiting Waters." It begins:NCAA officials and prominent figures on the summer basketball circuit are alarmed at an increasing number of fans who are creating Web sites, obtaining media credentials and becoming amateur recruiters. Rachel Newman-Baker, the NCAA's agent, gambling and amateurism director, said one of the organization's biggest concerns this summer was who was obtaining media credentials and for what purpose. * * *
That concerns those charged with the enforcement of NCAA recruiting regulations, and with Web addresses easy and inexpensive to obtain, separating legitimate online journalists from fanatics with URLs can be difficult.
"It really has gotten worse," said Bob Gibbons, a national recruiting analyst for 30 years. "We have a whole different set of communications than I am familiar with, and that existed when I first started out, went to a camp, watched the best players and did a report on them. They have taken it to different levels. There are multiple problems that need to be resolved, and I don't think anyone knows the exact solution to it. How do you legislate these people who claim they are media representatives?"
In wooing high school prospects to join their programs, college basketball coaches seek to convince players that they can provide the best place to continue their athletic and academic development. Doing so requires building relationships and trust with players, their parents and often a high school or summer league coach.Increasingly over the past two decades, however, college coaches have lamented the proliferation of additional participants in the recruiting process. These third parties -- who collectively fall under such labels as "handlers," "middlemen" or "advisers" -- latch on to prospects at young ages and then attempt to broker access to the players in exchange for benefits from college coaches or their schools.
Previously a factor for only the most elite high school prospects, third-party recruiting is becoming much more widespread. LuAnn Humphrey, the NCAA's associate director of enforcement who oversees the organization's basketball focus group, said one of her sector's biggest concerns is that the presence of third-party handlers is trickling down to less-heralded recruits.
Several prominent figures in the summer basketball circuit noted a rise in the population of small-time handlers in recent years.
Posted by Marcia Oddi on August 25, 2009 10:45 AM
Posted to General Law Related
Courts - Tips on "Managing the electronic communication revolution in the Indiana courtroom"
Miriam Rozen of the Texas Lawyer reports today on three Texas judges and how they use social network sites to help them do their jobs. This lengthy article is highly recommended by the ILB, and supplements earlier entries. Here are a few snippets.
The first judge,. Judge Susan Criss of Galveston, is a Facebook regular:
[S]he has one page she uses for personal and professional networking purposes. She says she started "friending" lawyers on Facebook to network and possibly to campaign in the future. (Friends generally can see what other friends post on their Facebook pages.) But Criss steers clear of what may be perceived as online ex parte communications by asking lawyers who represent parties in her courtroom to "de-friend" her when a trial commences.The section about the second, Judge Kathryn Lanan, begins:In her six months on Facebook, Criss has read all sorts of surprising comments posted by litigants and lawyers. "I've seen witnesses talk [on Facebook] about a case they are going to testify on. I've seen litigants bragging about anticipating making a lot of money. Those words can be used in front of a jury to cross-examine them," Criss says.
When Criss sees such comments on Facebook, she says she alerts lawyers on both sides. "Lawyers need to talk to their clients from the very beginning to find out what they have put on the Web," she says.
Recently, Criss has devised instructions for jurors that she issues before testimony in a trial begins. At that point, Criss says she tells jurors that they should not post anything online about their courtroom experience other than that they are serving on a jury and when they expect to be done. She says she also asks jurors which social network sites they use to "make sure jurors aren't going to be on Facebook talking about how this or that lawyer is an idiot."
Criss now worries -- with texting and various other forms of electronic communications -- about jurors engaging in such behavior in her courtroom right under her nose. "I also need to make sure they are not texting during the trial when they are sitting in the jury box," she says.
For the past two years Lanan, a juvenile court referee who presides over detention and adjudication hearings at the Galveston Juvenile Justice Center in Texas City, has required all juveniles under her court's jurisdiction to become her "friend" on Facebook or MySpace, thereby allowing her to view their postings (and them to view hers) or to fix their online settings so that all members may view the juveniles' pages, not just friends. Lanan, who has been on the bench since 2006, says she prefers that the juveniles "friend" her out of concern for their privacy.The section re the third judge is shorter, but equally valuable:
Judge Orlinda Naranjo of Travis County's 419th District Court does not have a Facebook or MySpace page. "I don't want to participate in that, thank you," says Naranjo, who has served on the district court for three years and previously as judge of Travis County Court-at-Law No. 2 for 11 years.But in the family law cases over which she presides, the judge says more attorneys are introducing evidence related to social networking sites and texting. "I see it in discovery requests. I see it in hearings. It is not commonplace yet. But I think it will be," Naranjo says.
In 2006, Texas became one of the first states in the nation to adopt rules governing the admission of evidence in civil proceedings obtained from social networking sites and individuals' pages on such sites, as well as from texting and other electronic communications.
"We are seeing more and more family law cases with allegations about a person being stalked by receiving 25 or 50 texts a day, or complaining about what a spouse has put on Facebook," Naranjo says. Such evidence helps her make decisions, especially in child-custody matters.
For example, during a recent custody case, a father's lawyer introduced paper copies of his ex-wife's craigslist postings as evidence of her involvement in clubs and organizations that could be detrimental to their child, Naranjo says. That evidence contributed to the judge's decision to grant temporary custody to the dad.
In another custody case, Naranjo says, a father had alleged that his daughter posted scantily clad photos of herself on her MySpace page and bragged about using a fake ID for underage drinking. The father alleged that the images illustrated that the mother did not appropriately supervise the child. "The images underscored how this mother didn't have any idea of what was going on in this girl's life. It was a very effective tool," says Naranjo, who granted the father temporary custody.
"I am just amazed what people put out there for the world to see. They are talking about smoking dope and doing drugs. It's discoverable. All of that is so easily discoverable."
Posted by Marcia Oddi on August 25, 2009 10:26 AM
Posted to Courts in general
Ind. Law - "How valid is a will? Recent lawsuits raise questions about final wishes"
The South Bend Tribune yesterday had this long story by Alicia Gallegos. From near the end of the story:
The Jeffers case is far from the only will dispute that has landed in court.A string of recent will battles involving celebrities like Michael Jackson, James Brown and Anna Nicole Smith also have brought the subject of to the forefront.
Locally, there is also the recent case of the late Dr. Philip Gabriele, whose brother-in-law has asked a court to revoke the doctor's will, claiming a depressed Gabriele was being unfairly influenced when he penned the document.
Gabriele and his wife, Marcella, were indicted in federal court for malpractice in June and scheduled to be arraigned the day they were found dead in an apparent murder-suicide.
Gabriele wrote the will just days before he died, giving purported best friend Susan Manuszak 75 percent of his gross estate and his mother 25 percent.
But despite all the publicity, [Alan F. Rothschild, head of the Trust and Estate Division of the American Bar Association] says, contested wills are not typical.
"In my 25 years practicing law, I would say less than one percent of wills are contested," he said.
Local estate expert Richard B. Urda Jr., attorney and president of Urda Professional Corp. in South Bend, agrees. The disputes are "relatively rare," says Urda, who is also a fellow with The American College of Trust and Estate Counsel.
If a will is contested, however, Urda points to three common assertions, including: that proper will procedure was not followed, that the client had decreased mental competency, or that someone exerted "undue influence" during the time of the will.
Childless couples also have a greater risk of having their wills challenged because of the broader mix of possible beneficiaries, Rothschild says.
But both experts detail some ways to prevent a will dispute, and they say it's never too late to implement them.
The tools are used to catch criminals, to provide building safety, and also, in recent times, to ensure will security.
They are videotapes.
Clients have had the ability to have their interactions with attorneys and estate planners recorded for years, Urda says, based on Indiana statute. A person can easily ask to have their will-signing recorded and kept for evidence.
Residents also have the option of a revocable trust, which they can put funds into. Revocable trusts in many states are much more difficult to challenge than a will, according to experts.
As for issues of mental competency, Rothschild believes that attorneys have a certain responsibility to look out for their clients, especially if something doesn't seem right.
"I feel some personal and professional obligation to not proceed to do something if I think the person does not fully understand what I'm doing," Rothschild said.
Asking a client additional questions or speaking further with witnesses might be necessary to be certain a client is cognizant, Rothschild said.
Urda adds that it might be warranted to ask for a family physician's opinion about a client's mental state if concerns arise.
And don't forget to speak up.
If you have plans to give money to a certain charity or to significantly change your will, Rothschild says you need to let family members know.
"I think the risk of (will disputes) increases," says Rothschild. "when it's a surprise to people."
Posted by Marcia Oddi on August 25, 2009 10:14 AM
Posted to Indiana Law
Ind. Gov't. - "Sex offenders to pay fee in Floyd County"
Chris Morris reports in the Jeffersonville New & Tribune:
Sex offenders living in Floyd County will now have to pay a registration fee.The Floyd County Commissioners passed an ordinance last week which calls for sex offenders to pay a $50 registration fee. The money will be used to help pay for new software which will help law officials keep track of sex offenders not only in their area, but throughout the country.
“This system will save a lot of manpower,” Floyd County Sheriff Darrell Mills said. “It’s a very good program and it will be self-supporting.”
The New Albany Police Department and Indiana State Police also will have access to the program. Mills is required to keep track of sex offenders in New Albany and Floyd County.
Posted by Marcia Oddi on August 25, 2009 10:11 AM
Posted to Indiana Government
Ind. Law - "Attorney William Crabtree II, facing trial, found dead in Dyer home"
Updating earlier ILB entries, the most recent from Dec. 25, 2008, Christin Nance Lazerus reports today in the Gary Post-Tribune:
William Crabtree II, who was set to face tax evasion and fraud charges in federal court on Monday, was found dead in his home earlier that morning.Crabtree, 46, was pronounced dead at 5:07 a.m. in his Dyer home in the 1300 block of Ballybunion Court in the Briar Ridge subdivision.
Dyer Police alerted the coroner's office at 4:34 a.m.
The Lake County Coroner's office has performed an autopsy, but is not releasing a cause of death, pending a toxicology report.
The coroner's office has ruled out homicide.
Crabtree was charged with stealing more than $2.2 million from his clients between 2006 and 2008.
He allegedly set up a series of forged checks, phony receipts and bank transfers to steal money from clients of his law firm and a title company he owned.
Crabtree's lawyer, Clark Holesinger, filed a motion to continue the trial while final issues are resolved in the case. The jury selection was set to begin at 8:30 a.m. in Judge Rudy Lozano's court, but jurors were sent home.
Holesinger said his heart goes out to Crabtree's family.
Crabtree resigned his law license in December 2008, after the state Supreme Court had suspended his license and were investigating his possible disbarment.
Posted by Marcia Oddi on August 25, 2009 08:29 AM
Posted to Indiana Law
Monday, August 24, 2009
Ind. Decisions - Supreme Court posts one late this afternoon
In Alvey v. State, a 7-page, 4-1 opinion, Justice Sullivan writes:
The decisions of the Court of Appeals are conflicting over whether an individual who pleads guilty to an offense is entitled to challenge the denial of a motion to suppress or other pre-trial motion on direct appeal. Precedent limiting the right to appeal following a guilty plea dictates that such an appeal is not permitted. * * *Based on the weight of the authority, Alvey cannot challenge his convictions in a direct appeal following his guilty plea. To the extent that prior opinions of the Court of Appeals are inconsistent with this conclusion, we disapprove of those decisions. See, e.g., Jones, 866 N.E.2d 339; S.A., 654 N.E.2d 791. A trial court lacks the authority to allow defendants the right to ap-peal the denial of a motion to suppress evidence when a defendant enters a guilty plea, even where a plea agreement maintains that such an appeal is permitted. Lineberry, 747 N.E.2d at 1155. Therefore, despite the plea agreement’s statement to the contrary, Alvey could not plead guilty and challenge the denial of his pre-trial motion to suppress. * * *
Defendants who plead guilty to achieve favorable outcomes forfeit a plethora of substantive claims and procedural rights. Games v. State, 743 N.E.2d 1132, 1135 (Ind. 2001). Alvey cannot benefit from both the advantages of pleading guilty and the right to raise allegations of error with respect to pre-trial rulings; these rights are relinquished once defendants decide against facing an uncertain outcome at trial.
Although we hold that a defendant cannot challenge the trial court’s ruling on a motion to suppress following a guilty plea, including those cases where the defendant reserved the right in his or her plea agreement, we find some unfairness to Alvey. Should we simply vacate the plea, he could face a higher sentence. Therefore, Alvey shall have the option of proceeding with the current plea agreement (absent the right to appeal the suppression order). If he does not exercise this option within 90 days of this opinion being certified (unless extended by the trial court), the plea agreement shall be vacated. * * *
Shepard, C.J., and Dickson and Rucker, JJ., concur. Boehm, J., dissents with separate opinion. [that begins] I respectfully dissent. I see no reason why this plea agreement should not be honored ac-cording to its terms, as it would in several states and in federal court under Federal Rule of Crim-inal Procedure 11(a)(2). See 5 Wayne R. LaFave, Criminal Procedure § 21.6(b) (3d ed. 2007).
Posted by Marcia Oddi on August 24, 2009 04:54 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Transfer list for week ending August 21, 2009
Here is the Clerk's transfer list for the week ending August 21, 2009. It is eight pages long.
(The ILB has not seen a transfer list for the week ending August 14th, despite several inquiries. However, the ILB received notice on August 14th that the case of Anthony Malenchik v. State was granted transfer August 10th. This case would be on the the August 14th list, if there is one. It is not on the new, August 21st list.)Three transfers were granted last week (Foundations of East Chicago, Whatley, and Jarrels); they were discussed in this August 20th entry and this one from August 21st.
One notable case denied transfer last week was the case involving the Plainfield park sex offender ban - see this ILB entry from August 22nd.
There look to be several other denials of interest on today's 8-page list.
________
Transfer lists have new feature. The "Denied/Granted" column, beginning in March 2009, includes the votes of the justices.
Search all the Transfer Lists: A new ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the May 22nd list.
Over 5 1/2 years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Posted by Marcia Oddi on August 24, 2009 04:26 PM
Posted to Indiana Transfer Lists
Ind. Decisions - Annex Books and New Albany DVD still awaiting decisions; September will mark the 4th anniversaries of their oral arguments before the 7th Circuit
Here is Judge Sarah Evan Barker's August 27, 2004 opinion in Annex Books Inc, et al v. City of Indianapolis. In Annex Books, Judge Barker upheld provisions of an Indianapolis adult business ordinance.
The appeal was argued before a 7th Circuit panel of Judges Flaum, Easterbrook, and Rovner, on Sept. 8, 2005. An opinion (05-1926) has yet to be issued.
Here is Judge Barker's January 1, 2005 opinion in New Albany DVD v. City of New Albany. "Barker issued a preliminary injunction against the city on grounds that its adult-entertainment zoning ordinance — enacted after New Albany DVD had tried to open — was too broadly written" reported the LCJ at the time.
The appeal was argued before a 7th Circuit panel of Judges Easterbrook, Ripple and Rovner on Sept. 26, 2005. An opinion (05-1286) has yet to be issued.
Yes, the four-year anniversaries are approaching. Anyone have a clue as to when rulings may be expected? Are these cases in line for winning the all-time "cases awaiting decision the longest before the 7th Circuit" award?
For background on these cases, start with this ILB entry from July 4, 2008. See also this ILB entry from Oct. 19, 2004, headed "Cities battle adult stores in courts."
Posted by Marcia Oddi on August 24, 2009 01:02 PM
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
Term. of Parent-Child Rel. of R.B.; T.B. v. IDCS (NFP)
NFP criminal opinions today (1):
Bernard S. Batey v. State of Indiana (NFP)
Posted by Marcia Oddi on August 24, 2009 12:45 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Tax Court issues two rulings today in cellphone sales tax challenge
In CINCINNATI SMSA LIMITED PARTNERSHIP and NEW CINGULAR WIRELESS PCS, LLC, as successor to Indiana Cellular, LLC, Kentucky CGSA, LLC, Westel-Indianapolis, LLC, Indiana 8, LLC, ) and Westel-Milwaukee, LLC v. Ind. Dept. Revenue - Judge Fisher today issued two NFP orders, this Order on Respondent's Motion to Strike, and this Order on Petitioners' Motion for Summary Judgment.
Posted by Marcia Oddi on August 24, 2009 12:38 PM
Posted to Ind. Tax Ct. Decisions
Ind. Law - "Facing Foreclosure in Northwest Indiana"
Michael Puente of Chicago Public Radio has this long report today (that you may listen to or read). A few quotes:
A new report by the Mortgage Bankers Association puts Indiana ahead on an unwelcome scale. Fifteen percentage of Indiana homeowners with a mortgage were either behind in payments or were in foreclosure as of June.Nationally, past due loans, and loans in foreclosure added up to 13 percent. It’s not just Northwest Indiana’s big cities in trouble. Many of the area’s more affluent, outlying communities also are dealing with increasing levels of unemployment and foreclosure. * * *
To those who know Northwest Indiana, the steep rise in foreclosures in 2007 didn’t come as a big surprise in places like Gary, where most incomes are low and unemployment high.
The foreclosure rate is at 16 percent in the city.
But the suburban areas, those bedroom communities where landscaped lawns, tree-line streets, backyard pools and three car garages are more the norm, surely those would be insulated from the foreclosure mess. * * *
BENMAN: You would think people there would have the income to cover it. If they did have an adjustable rate, or some adjustment they could make, both people working, and so on.
Keith Benman’s with the Times of Northwest Indiana.
He led a team of reporters who analyzed lending trends in parts of Crown Point, neighboring Merrillville and Gary, cities in Lake County, east of Chesterton.
The reporting showed numbers and reasons that surprised the researchers.
BENMAN: First assumption there were thought Gary, East Chicago, we’ll find the highest numbers there. But what we actually found were yes, there was a high number in Crown Point, Merrillville. Those were the highest concentrations of subprime lending in the county and also some of the highest concentrations of foreclosures as well.
Before the downturn in the economy , banks and lending institutions were quick to give home and refinancing loans, especially in middle class areas like Crown Point, where bad credit hasn’t been much of an issue and borrowers had more options.
SHARP: Your no doc loans, where you needed a 720 or 780 credit score. So, there you have your more affluent buyers because they were buying the larger homes and the larger priced homes.
That’s Darrolyn Sharp, head of Consumer Credit Counseling of Northwest Indiana.
Sharps says communities like Chesterton, Valparaiso and Crown Point are home to many who obtained mortgages through what she calls creative financing.
SHARP: Those are the kinds of loans now that are being subjected to foreclosure. And, now you’re looking at the industry where the property values have declined, we can’t get the appraised value, so what are we supposed to do.
And, when the foreclosures create empty buildings in more communities that haven’t seen the problem much before, Sharp says that causes particular stress for neighbors.
Posted by Marcia Oddi on August 24, 2009 09:12 AM
Posted to Indiana Law
Ind. Law - "Gerrymandering targeted: Lawmakers take aim at partisan redistricting"
That is the headline to this article today in the Evansville Courier & Press by reporter Eric Bradner. It begins:
INDIANAPOLIS — As state lawmakers gear up for a 2010 midterm election that will determine who wields the mapmaking power in the Indiana General Assembly, a commission meeting in the coming weeks is studying ways to cut partisan politics out of the redistricting process in future years.See also this July 31 ILB entry, quoting Art. 4, Sec. 5 of the Indiana Constitution, and linking to a still-available AP story.Legislators are studying whether to have an independent commission draw district lines or at least assist in the process — an increasingly popular change that 21 other states already have adopted.
It's too late to change the rules for the redistricting set to occur in the Legislature elected in 2010, after the completion of the upcoming U.S. Census. That's because doing so would require amending the Indiana Constitution, which currently requires state lawmakers to draw the district lines. But lawmakers could change the process for future years.
Posted by Marcia Oddi on August 24, 2009 08:59 AM
Posted to Indiana Law
Law - Yet more on: Chicago Mayor Dailey privatizes City parking meters
Updating this June 7th ILB entry, Slashdot has an interesting post this morning on the "smart" meters installed in Chicago.
Posted by Marcia Oddi on August 24, 2009 08:51 AM
Posted to General Law Related
Ind. Law - It's the Law: "Death penalty explained in three parts"
Ken Kosky's "It's the Law" column in the NWI Times this week begins a three-part series on the death penalty with an examination of what makes a killer eligible for like in prison or the death penalty (while others who commit murder in Indiana are not eligible under Indiana law to serve more than the 45- to 65-year prison sentence, so with credit for good behavior they can get out of prison in a few decades):
Indiana law states that prosecutors, to seek life in prison or the death penalty, must prove the existence of at least one of these aggravating circumstance:-The defendant committed the murder by intentionally killing the victim while committing arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, robbery, carjacking, criminal gang activity or dealing in cocaine or a narcotic drug.
-The defendant killed by unlawful detonating of an explosive with intent to cause injury or damage.
-The defendant killed by lying in wait.
-The defendant was hired to commit the murder or hired someone to commit the murder.
-The victim was a corrections employee, probation officer, parole officer, community corrections worker, home detention officer, fireman, judge or law enforcement officer -- and was killed during duty or because of something he or she did on duty.
-The defendant has been convicted of or committed another murder.
-The defendant was in custody, on parole or on probation due to a felony when the murder occurred.
-The defendant burned, mutilated or tortured the victim while the victim was alive, or dismembered the victim.
-The victim was less than 12 years of age.
-The victim was a victim of any of these offenses for which the defendant was convicted: battery, kidnapping, criminal confinement and sex crimes.
-The murder was done to prevent a witness from testifying.
-The murder was committed by firing a gun from a vehicle or into an inhabited dwelling.
-The victim was pregnant and a viable fetus was killed.
There are mitigating circumstances that may work in the defendant's favor, such as his age (younger than 18), mental state or lack of criminal record. Other mitigating factors include the fact that the defendant was an accomplice in a murder and had a minor role, the defendant was acting under the domination of another person or the victim participated or consented to the defendant's conduct.
Posted by Marcia Oddi on August 24, 2009 08:15 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 8/24/09):
- None currently scheduled.
Next week's oral arguments before the Supreme Court (week of 8/31/09):
Next Thursday, September 3rd
- 9:00 AM - David A. Shotts v. State - Indiana police officers seized evidence from Shotts while executing an Alabama arrest warrant. The St. Joseph Superior Court admitted the evidence over Shotts’ objection. The Court of Appeals concluded the Alabama arrest warrant was deficient, and reversed in Shotts v. State, 907 N.E.2d 134 (Ind. Ct. App. March 12, 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Here is the ILB summary of the opinion (3rd case).
- 9:45 AM - State v. Michael Haldeman and State v. Rachel Lawson - Michael Haldeman and Rachel Lawson were each charged with one or more counts of conspiracy to deal methamphetamine, a Class B felony, based on evidence gathered pursuant to “intercept warrants” that allowed the police to place wiretaps on certain cellular and residential phone lines. Haldeman and Lawson moved to suppress the evidence because the police failed to seek appellate review of the intercept warrants as required by Indiana Criminal Rule 25(B). The Morgan Superior Court granted their motions to suppress, and the State appealed. While the appeal was pending, the State moved the Supreme Court to transfer jurisdiction from the Court of Appeals per Appellate Rule 56(A) and to consolidate Haldeman and Lawson’s appeals. The Supreme Court granted both motions, thereby assuming jurisdiction over the consolidated appeals. [Note: Appellate Rule 56(A) is the emergency transfer rule]
- 10:30 AM - Kyle Kiplinger v. State of Indiana - A jury found Kiplinger guilty of murder. In the penalty phase proceedings on the State’s request for a sentence of life imprisonment without parole, the jury found the State had proven the charged aggravating circumstance but was unable to reach a unanimous decision regarding sentencing. The Perry Circuit Court sentenced Kiplinger to life without parole, and in this direct appeal, Kiplinger argues the conviction and sentence should be reversed.
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 8/24/09):
- None currently scheduled.
Next week's oral arguments before the Court of Appeals (week of 8/31/09):
Next Tuesday, September 1st
- 2:00 PM - Kristy Humphrey, (As Personal Representative of the Estate of Charles Mandress, Jr., Deceased) vs. Duke Energy Indiana, Inc., et al - Kristy Humphery, as personal representative for the Estate of Charles Mandrell, Jr., appeals from the trial court's grant of summary judgment to Duke Energy Indiana, Inc. ("Duke Energy"). Humphery alleged in her complaint that Duke Energy negligently placed a utility pole near an intersection in Johnson County, which proximately caused Mandrell's death. On appeal, the parties dispute the existence of a genuine issue of material fact regarding whether Duke Energy could have reasonably foreseen Mandrell's collision with its utility pole. The Scheduled Panel Members are: Judges Najam, Kirsch and Barnes. [Where: Indiana Court of Appeals Courtroom - WEBCAST] ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
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 24, 2009 08:02 AM
Posted to Upcoming Oral Arguments
Sunday, August 23, 2009
Courts - "Federal Judges Given Guidance on Web Sources"
Mary Pat Gallagher's story in the New Jersey Law Journal, dated August 21st, included these quotes:
Judges, like the rest of us, can be lured by the treasure trove of information on all kinds of topics available on the Web. Now federal judges have a set of guidelines to help them decide when and how to use Internet sources.The Judicial Conference of the United States has sent the chief judge in every federal district five pages of "suggested practices" on the subject.
The guidelines say judges should apply the same criteria to Internet sources as for traditional media -- accuracy, scope of coverage, objectivity, timeliness, authority and verifiability.
Among the questions they should ask: whether the source is peer-reviewed; who publishes it and why; whether the publisher uses editors and fact-checkers; whether the information is reliable and up-to-date; and the sources cited, if any. * * *
The ephemeral nature of the Internet was a prime concern for the guideline writers. "Unlike printed authority, Internet information is often not maintained at a permanent location, and a cited webpage can be changed or deleted at any time," wrote Judicial Conference Secretary Jim Duff in his accompanying cover letter to chief judges on May 22.
"Obviously, this has significant implications for the reliability of citations in court opinions."
Consequently, before citing an Internet page, a judge should take into account whether the information is "stable and likely to remain accessible" via the citation used.
A recent state appeals court decision highlighted the risk of relying on a malleable Web source. In Palisades Collection v. Graubard, A-1338-07, decided April 17, the Appellate Division threw out a judgment in a credit-card collection case because the trial judge took judicial notice of information from Wikipedia that helped trace ownership of the debt in order to establish the plaintiff's standing to sue. Noting that anyone can edit Wikipedia, including a litigant, the appeals court termed it "inherently unreliable."
The federal guidelines recommend capturing a page and attaching it to the opinion if there is reason to believe it will be changed or altered. A captured page should be converted to PDF format with some notation of the date, such as a watermark.
Posted by Marcia Oddi on August 23, 2009 06:28 PM
Posted to Courts in general
Law - "Illinois Gov. Pat Quinn signs overhaul of state's open records law; Attorney general's office gains powers, but often-abused exemptions remain"
From a report today in the Chicago Tribune by Monique Garcia:
Gov. Pat Quinn signed an overhaul of the state's open records act into law on Monday, saying the "landmark" changes would make government more transparent following the arrest and ouster of predecessor Rod Blagojevich.This part of the story points to differences between the power of the Illinois Governor when acting on legislation, and that of the Indiana Governor:Backed by Illinois Atty. Gen. Lisa Madigan, the law will give her office sweeping new powers to interpret what records are public and settle disputes over the Freedom of Information Act. The changes, which take effect Jan. 1, included shortening the time government bodies have to respond to records requests and imposing fines of up to $5,000 for agencies that wrongfully deny records.
"I think anybody in Illinois who pays taxes should be very happy that our government is going to become more open to the public," Quinn said at a signing ceremony, where he was joined by Madigan and several members of the blue-ribbon ethics panel he formed after Blagojevich's arrest late last year.
But there is still broad language in the act that leaves open the door to oft-abused exemptions for requests that are "unduly burdensome" and "a clearly unwarranted invasion of personal privacy." Also intact is another exemption that lets public officials keep secret "preliminary drafts, notes, recommendations memorandum and other records in which opinions are expressed, or policies or actions are formulated."
The exemption has drawn fire from critics who say these are the records most needed by citizens to question and evaluate the actions of their public servants.
Under the new law, public agencies must notify the attorney general's office when they assert the privacy and draft exemptions so the office can review whether that is appropriate. Before the new law, the public was left with little option but to sue the government agency that refused a request.
Quinn's signature came after weeks of intense lobbying by supporters and critics.On August 18th the Tribune published this article headed "Illinois' new open records law at a glance."The Illinois State's Attorneys Association sent Quinn a letter asking that he use his amendatory veto power to rewrite the bill and remove provisions they said could result in the improper release of victim and informant information. The Illinois Municipal League also asked Quinn to make changes before signing the bill, saying the new provisions would make responding to information requests more complex and place an undue burden on local governments.
"This is a lawyer's dream and a layman's nightmare," Municipal League General Counsel Roger Huebner said Monday. "When will we get an act that serves the public? These changes don't."
But the Illinois Press Association, which represents many of the state's newspapers, urged Quinn to sign the measure, saying it was a welcome improvement.
In a written message to legislators, Quinn acknowledged the concerns raised by law-enforcement officials and local governments and asked that "all parties impacted by this bill work collegially in the coming months to craft consensus legislation that addresses the significant, lingering concerns."
An editorial Aug. 18th in the State Journal-Register:
It should be a new day in Illinois when it comes to public records come Jan. 1.Ignoring complaints by the Illinois Municipal League and the Illinois State’s Attorneys Association, Gov. Pat Quinn left the bill intact Monday, signing it without making changes recommended by the two associations that would have gutted the bill.
The governor, who often has confounded the Capitol by switching positions, stuck to his principles on this issue and should be commended. Attorney General Lisa Madigan, who was at the bill signing with Quinn, once a potential political rival, also deserves kudos for her spearheading of this effort.
When the modified law goes into effect at the beginning of next year, the public will be to able to get records faster and without the kind of bureaucratic wrangling that has characterized what’s on the books today.
At least that is the new law’s aim. Given the objections of the Illinois Municipal League (whose first vice president is Springfield Mayor Tim Davlin) to the law’s provisions, we are concerned that local governments will try to gum up the process by often kicking basic requests to the attorney general’s new public access counselor.
That person’s job will be to mediate and decide disputes over what is and is not public. He or she will have subpoena power and issue decisions that could only be overturned by a judge.
One of the IML’s objections to the law is that the public access counselor will be overwhelmed. Its recommendation was that the position simply be eliminated and the status quo, in which citizens have to ante up for a lawyer to enforce the law, be maintained.
In our view, the law is clear. The public access counselor should seldom have much to do. The overwhelming majority of records will now be public.
That includes:
* Documents that probably will give public bodies heartburn when they are released (disciplinary records of employees accused of misconduct).
* Documents that seem noncontroversial but that some local governments have tried to withhold in the past (building permits, which the city of Springfield once laughably claimed were exempt from public view).
The public access counselor’s biggest potential workload will come because of a provision requiring he or she to review instances in which governments cite privacy as a reason for denying a records request.
In our experience, privacy is cited most often to hide records related to potential employee misconduct. But the new law does not include a personnel record exemption, and it makes clear that releasing records related to the public duties of public employees is not an invasion of privacy.
If Illinois governments get the message that the days of concealing records and putting citizens trying to look behind the curtain through a bureaucratic gauntlet are over, this new law will work well.
Posted by Marcia Oddi on August 23, 2009 03:10 PM
Posted to General Law Related
