The Indiana Law Blog

Saturday, September 05, 2009

Courts - More on: SCOTUS will hear case next month, preceding the "First Monday in October"

Updating this ILB entry from August 30th, here are two very good stories on the important oral argument coming up this Wednesday, September 9th.

The first, composed of both background and analysis, is from Lyle Denniston of SCOTUSBlog. This link also includes access to all the briefs. Note also that the 80-minute argument will be made available by the Court immediately upon its completion.

"Will Deep Pockets Always Win? It's In Roberts's Court," is the headline to this opinion piece today by Robert G. Kaiser of the Washington Post. It begins:

Occasionally, the Supreme Court reaches a decision that transforms American life. Fifty-five years ago Brown v. Board of Education announced the impending demise of racial segregation, and today we have a black president. In 1962, Baker v. Carr initiated a series of decisions that established the principle of "one man, one vote," eventually ending rural domination of Congress and state legislatures, a revolution in American governance.

This year or next the court could again remake the American system by permitting a flood of corporate money into our electoral campaigns, which are already drenched in dollars. Like Brown, such a decision would create vast new opportunities for a particular class of Americans -- this time, corporate elites.

This possibility comes as a surprise. Until this summer, the barriers preventing the use of corporate and union funds in political campaigns -- the oldest dating to 1907 -- were "firmly embedded in our law," in the words of a 2003 Supreme Court decision upholding the ban. Then on the last day of the court's term in June, for reasons not explained, the court invited the parties in a case called Citizens United v. Federal Elections Commission to revisit the constitutional issues involved. This they will do in an unusual second argument on the case, scheduled for Wednesday.

[More] This AP story takes a brief look at the "major players."

Posted by Marcia Oddi on September 5, 2009 09:45 AM
Posted to Courts in general

Ind. Gov't. - "Lights Out at the Penitentiary: Strapped States are Shutting Prisons"

Today's Wall Street Journal has this lengthy front-page story by Gary Fields on how many states are now "closing penitentiaries and releasing inmates early." A few quotes:

For three decades, state and local governments built and filled jails to make good on promises to get tough on crime. Now, the recession and collapsing budgets are forcing an about face.

Prisons are one of the biggest single line items in many state budgets, in part because nearly five times as many people are now behind bars as in the 1970s. From California to New York, officials are now closing penitentiaries and releasing inmates early. At least 26 states have cut corrections spending in fiscal year 2010, and at least 17 are closing prisons or reducing their inmate populations, according to the Vera Institute on Justice, a criminal-justice reform organization in New York.

The problem is especially acute in Michigan. Inmates here on average serve 127% of their court-ordered minimum sentences, well beyond the sentences of inmates in other states that offer parole, according to the Council of State Governments Justice Center. The state last year spent $2 billion on prisons, and one third of all state employees work for the department of corrections, which is among the highest percentage in the nation. With the collapse of the auto industry, the pressure to pare these costs is high.

Earlier this year, Michigan Gov. Jennifer Granholm expanded the parole and clemency board from 10 members to 15 and announced the state's prison population of 48,000 would be cut by 4,000 inmates. Seven correctional facilities have closed so far this year, including Hiawatha; the state has announced it will shutter another four. At least one of those four might remain open as Michigan considers accepting detainees from Guantanamo Bay, Cuba, and prisoners from other states. Officials from the federal government recently toured a maximum-security state prison in Standish, Mich., as a possible new home for prisoners held at Guantanamo.

But Hiawatha didn't get such a reprieve. That is why on the morning of July 28, Warden Woods was in his office at 7 a.m. poring over closure plans. Hiawatha, a so-called secure level-one prison, held everyone from burglars to second-degree murderers. Outside Mr. Woods's office, 40 inmates, each wearing arm and leg restraints, boarded a bus with dark-tinted windows headed 200 miles away to another prison where they would serve out the rest of their sentences. More buses and vans would be rolling later in the day, some carrying inmates as far away as Marquette Branch Prison, more than four hours west of here.

[More] Nicholas Riccardi reports today in the LA Times under the headline "Cash-strapped states revise laws to get inmates out: Mandatory sentencing laws are relaxed, parole is accelerated, and time off for good behavior is increased as states scramble to save money." It begins:

Reporting from Denver - After decades of pursuing lock-'em-up policies, states are scrambling to reduce their prison populations in the face of tight budgets, making fundamental changes to their criminal justice systems as they try to save money.

Some states are revising mandatory-sentencing laws that locked up nonviolent offenders; others are recalculating the way prison time is counted.

California, with the nation's second-largest prison system, is considering perhaps the most dramatic proposal -- releasing 40,000 inmates to save money and comply with a court ruling that found the state's prisons overcrowded.

Colorado will accelerate parole for nearly one-sixth of its prison population. Kentucky has already granted early release to more than 3,000 inmates. Oregon has temporarily nullified a voter initiative calling for stiffer sentences for some crimes, and has increased by 10% the time inmates get off their sentences for good behavior.

The flurry of activity has led to an unusual phenomenon -- bureaucrats and politicians expressing relief at the tight times. "The budget has actually helped us," said Russ Marlan, a spokesman for the Corrections Department in Michigan, which increased its parole board by 50% this year to speed up releases.

"When you're not having budget troubles, that's when we implemented many of these lengthy drug sentences and zero-tolerance policies [that] really didn't work," he said.

Though prison budgets grew steadily over the last 20 years, a recent survey found that 26 states cut their corrections budgets this year. The reductions range from the small-scale -- such as putting in energy-efficient lightbulbs -- to sweeping changes like the early releases.

"States are saying, 'We can't build our way to public safety, especially when budgets are tight,' " said Adam Gelb, head of the Pew Center on the States' Public Safety Performance Project. "For the most part, state leaders are not holding their noses and making these changes just to balance their budgets. They're beginning to realize that research-based strategies can lead to less crime at far less cost than prison."

Many states have expanded credit for good behavior. Others have made legal tweaks, such as raising the minimum amount of damage required for a property crime to be a felony. Some, like New York, have overhauled long-criticized mandatory sentencing laws that sent nonviolent, first-time drug offenders to state prison.

These efforts, however, have already run into resistance.

Posted by Marcia Oddi on September 5, 2009 09:23 AM
Posted to Indiana Government

Ind. Decisions - "Federal court ruling would let city's adult shops run 24/7"

That is the headline to Robert King's story today in the Indianapolis Star about the 7th Circuit's ruling Thursday in the case of Annex Books Inc, et al v. City of Indianapolis (see ILB 9/3/09 summary here). Quotes from today's story:

Adult businesses selling books, movies and sex paraphernalia in Indianapolis will be able to open on Sundays -- and 24 hours a day -- unless the city can prove there is some compelling reason why it is singling out that particular day and particular hours.

A federal appeals court ruling issued Thursday casts serious doubts on the future of key parts of a 2003 city ordinance that more strictly regulates "adult entertainment businesses" in Indianapolis.

Unless the city can prevail on appeal or in a new evidentiary hearing, adult businesses not only could operate anytime, they also could provide booths or stalls with doors, where patrons can privately view movies on the premises.

"It is a pretty significant defeat for the city," said Richard Kammen, an attorney representing the four adult businesses that sued the city.

The three-judge panel said the city needs evidence that the restrictions in the ordinance have public benefits "great enough to justify any curtailment of free speech."

The city contends that such businesses attract crime. But the best it could do was report that, in 2002, police made 41 arrests for public masturbation at Annex Books, an Eastside shop that is one of the businesses that filed suit.

The court said it wasn't clear, however, whether the arrests occurred on Sundays or after midnight or whether that number of arrests was considered a lot compared with arrests at bars and other establishments.

"There must be evidence," the court said in its written decision. "Lawyers' talk is insufficient."

The original ordinance was championed by then-Mayor Bart Peterson and approved by the City-County Council in 2003. It led to a court challenge from four businesses -- Annex Books, Keystone Video, Lafayette Video & News and New Flicks -- and to court arguments in 2005.

What happens next?

Jon Mayes, the chief litigation counsel for the city, said it has several options. It could appeal to the U.S. Supreme Court, ask a full panel of judges from the 7th U.S. Circuit Court of Appeals to hear the case or go back to the original court of Judge Sarah Evans Barker and try to produce the evidence the panel had sought.

Because the court case is four years old, Mayes said it could be that new data are readily available to support the city's position. Although the panel's ruling opens the possibility of Sunday operations for adult bookstores, Mayes said: "There's a lot of ways to fix this." "This fight is not over," he said.

Even if the ruling stands, neither side predicted a sudden and major proliferation of adult bookstores in Indianapolis.

Kammen, the attorney for the bookstores, said a tough economy is a natural barrier. But so is the Internet, which has made pornography more easily accessible to the public -- even without leaving one's home. * * *

The 2003 ordinance expanded the definition of "adult entertainment businesses" from those that get half of their revenue from adult books, magazines, films and devices to those who get as little as 25 percent of their revenue from such items. It required that the businesses be well-lit and sanitary and closed between midnight and 10 a.m. Monday through Saturday, and closed Sundays.

Posted by Marcia Oddi on September 5, 2009 09:09 AM
Posted to Ind. (7th Cir.) Decisions

Friday, September 04, 2009

Courts - Relying on Indiana law, Illinois federal judge allows woman to sue bank for lax security after $26,000 stolen by hacker [Updated]

From a story by Kim Zetter of Wired:

An Illinois district court has allowed a couple to sue their bank on the novel grounds that it may have failed to sufficiently secure their account, after an unidentified hacker obtained a $26,500 loan on the account using the customers’ user name and password.

As initially reported by legal blogger, David Johnson, Marsha and Michael Shames-Yeakel sued Citizens Financial Bank in 2007 in the northern district of Illinois on several grounds, including a claim that the bank failed to provide state-of-the-art security measures to protect their account.

U.S. District Judge Rebecca Pallmeyer refused last week to grant a summary judgment in favor of Citizens Financial, stating in her ruling that “assuming that Citizens employed inadequate security measures, a reasonable finder of fact could conclude that the insufficient security caused Plaintiffs’ economic loss.” * * *

Citizens used a company named Fiserv to provide its online banking services, including information security services, and argued that Fiserv had a solid reputation in the banking industry and that its security measures were not the cause of the money transfer.

The bank also pointed to its online user agreement, which it said released it of liability. The agreement stated to customers that it would “have no liability to you for any unauthorized payment or transfer made using your password that occurs before you have notified us of possible unauthorized use and we have had a reasonable opportunity to act on that notice.”

Judge Pallmeyer, however, was not convinced. She found court precedents showing that financial institutions have a common law duty to protect their customers’ confidential information against identity theft. Specifically, Indiana courts — where the Shames-Yeakels live — have held that a bank “has a duty not to disclose information concerning one of its customers unless it is to someone who has a legitimate public interest.” The judge therefore concluded in part that, “If this duty not to disclose customer information is to have any weight in the age of online banking, then banks must certainly employ sufficient security measures to protect their customers’ online accounts.”

With regard to Citizens’ slow rollout of tokens to customers, Judge Pallmeyer stated that, “In light of Citizens’ apparent delay in complying with FFIEC security standards, a reasonable finder of fact could conclude that the bank breached its duty to protect Plaintiffs’ account against fraudulent access.”

This ILB entry from August 25th began:

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."

The WAPO story is a "must read."

Re the 8/21/09 opinion in Shames-Yeakel v. Citizens Financial Bank (ND Ill., ED), it turns out that the bank has branch locations in NW Indiana and the Chicago area, and the plaintiffs reside in Crown Point. Plaintiffs "were customers of Citizens who fell victim to identity theft when an unknown person gained access to their online account and stole $26,500 from a home equity credit line. When Plaintiffs refused to pay Citizens for the loss, the bank reported their account as delinquent to the national credit bureaus and threatened to foreclose on Plaintiffs’ residence."

From p. 18 of the opinion:

Finally, Plaintiffs claim that Citizens acted negligently in a number of ways. The parties agree that Indiana law applies to this claim. In order to prove negligence in Indiana, a plaintiff must establish a duty owed by the defendant to conform its conduct to a standard of care arising from its relationship with the plaintiff; a breach of that duty; and an injury proximately caused by the breach of that duty. Benton v. City of Oakland City, 721 N.E.2d 224, 232 (Ind. 1999). Plaintiffs here argue that Citizens was negligent in violating the various statutory duties discussed above, and also in failing to sufficiently protect their accounts from fraudulent access in the first place. * * *

The unique issue within Plaintiffs’ negligence claim is their argument that Citizens breached its duty to sufficiently secure its online banking system. A number of courts have recognized that fiduciary institutions have a common law duty to protect their members’ or customers’ confidential information against identity theft. See, e.g., Jones v. Commerce Bancorp, Inc., (S.D.N.Y. May 23, 2006); Bell v. Mich. Council 25 of Am. Federation of State, County, Municipal Employees, (Mich. Ct. App. Feb. 15, 2005) (per curiam). Although this court could not find an Indiana case addressing the matter,
Indiana courts have held that a bank “has a duty not to disclose information concerning one of its customers unless it is to someone who has a legitimate public interest.” Ind. Nat. Bank v. Chapman, 482 N.E.2d 474, 482 (Ind. Ct. App. 4th Dist. 1985) (citing Cont’l Optical Co. v. Reed, 119 Ind. App. 643, 86 N.E.2d 306 (1949)). If this duty not to disclose customer information is to have any weight in the age of online banking, then banks must certainly employ sufficient security measures to protect their customers’ online accounts.

Posted by Marcia Oddi on September 4, 2009 03:21 PM
Posted to Courts in general | Ind Fed D.Ct. Decisions | Indiana Decisions

Ind. Decisions - One case granted transfer Sept. 3rd

The Clerk's transfer list should be available sometime today or perhaps not until Tuesday. Meanwhile, the ILB has received notice that transfer was granted September 3rd in the following case:

Everett Cash Mutual Insurance Company v. Rick Taylor and Katrina Taylor -- 02A03-0808-CV-386 -- This was a 2-1 opinion from April 8th; see ILB summary here - 2nd case.

Posted by Marcia Oddi on September 4, 2009 02:04 PM
Posted to Indiana Transfer Lists

Courts - EEOC award of nearly $330,000 in damages to a former Marion County chief deputy coroner who claimed reverse discrimination

Jon Murray reported Sept. 2nd in a story that began:

The city likely will appeal a federal agency's award of nearly $330,000 in damages to a former Marion County chief deputy coroner who claimed he was fired because he is white.

John Linehan's demotion and firing by then-Coroner Kenneth Ackles, who is black, in late 2005 abruptly ended a 20-year association with the office. Linehan started as a full-time deputy coroner in 1999 but had worked earlier as a consultant and part-time employee.

The U.S. Equal Employment Opportunity Commission last week upheld a 2007 finding in Linehan's favor on race discrimination and retaliation claims. It cited substantial evidence that Ackles used job-performance reasons as a cover for firing Linehan and said he had stated a preference for hiring African-Americans.

A city attorney disputed the discrimination conclusion Tuesday and said a federal appeals court would be likely to at least reduce what the city sees as excessive damages.

Ind. Courts - "'Special master' OK'd in Gabriele will case"

Updating this ILB entry from August 25th, Alicia Gallegos of the South Bend Tribune reports today:

The Indiana Supreme Court has ruled that an estate expert should oversee the complex dispute surrounding the late Dr. Philip Gabriele's estate.

St. Joseph Circuit Court Judge Michael G. Gotsch recently requested the appointment of "special master" in the Gabriele case because of the series of complicated case factors.

The lawsuit filed by Jon Alex Dawson, brother of Marcella Gabriele, alleges that Gabriele's will — which does not include his wife's name — was improperly executed and the doctor was under "undue influence" when he penned the document. The case involves several atypical issues including: the circumstances behind Gabriele's death, the legal effect of the decedent's presumed involvement in the death of his wife, and the competing interests and claims of heirs.

The Supreme Court recently approved the recommendation, and Gotsch this week assigned estate expert Richard B. Urda Jr. as the special master, according to court documents.

A "special master" is a particular expert assigned in certain cases to oversee the proceedings. * * *

A new executor was named last month to handle the Gabrieles' will after Dawson's attorneys argued that the former executor, Susan Manuszak, might be biased considering her involvement in the case.

Gotsch designated 1st Source Bank to serve as special administrator to the will, thus rescinding Manuszak's appointment.

Although officials previously had 60 days to compile an inventory of the Gabriele estate, 1st Source Bank recently filed for a 31-day extension.

Here is a list of all Gabrieles entries.

Posted by Marcia Oddi on September 4, 2009 01:48 PM
Posted to Indiana Courts

Ind. Gov't - "Petitions U.S. Supreme Court, Seeks Equitable Compensation for Indiana Funds Affected by Chrysler, LLC Bankruptcy"

Updating this earlier ILB entry, here is the press release of Indiana's Treasurer:

INDIANAPOLIS (September 3, 2009) – Indiana State Treasurer Richard Mourdock today filed a petition with the Supreme Court of the United States (SCOTUS) on behalf of the Indiana State Police Pension Trust, the Indiana Teachers Retirement Fund, and the Major Moves Construction Fund because of losses incurred by the actions of the U.S. Department of Treasury during the Chrysler, LLC bankruptcy. At a minimum, Indiana’ funds lost $6,000,000 in value during the bankruptcy sale.

“The appeal to the Supreme Court of the United States underscores the point that decisions by the U.S. Bankruptcy Court of New York in the Chrysler case were inconsistent with longtime, established bankruptcy code and therefore contributed to reductions in the value of Indiana’ funds,” explained Treasurer Mourdock. “As a fiduciary for these funds, which were negatively impacted because of errors in the bankruptcy process and inappropriate actions by the federal government, I must take every step to see those monies are fully recovered.”

In early June, SCOTUS initially issued a “stay,” which halted the bankruptcy sale of Chrysler, LLC. The following day, SCOTUS allowed the bankruptcy sale to proceed, and the claims of all other secured creditors were extinguished. Indiana’ pensioners, however, had the chance to appeal in part because of their objection filed in Chrysler bankruptcy, which went to the steps of the U.S. Supreme Court.

Mourdock also made the point, “We are not asking for the bankruptcy sale of Chrysler to be reversed, which is legally impossible, but the losses to our funds are very real. I can’ cease to act in gaining equitable treatment that is consistent with longstanding bankruptcy law. From the beginning, I have consistently stated that the federal government must follow the law and that is why the appeal was filed,” emphasized Treasurer Mourdock.

Legal services pertaining to the SCOTUS’appeal have been performed by the Indiana Attorney General’ Office; therefore, no legal fees or costs associated with this appeal were incurred by Indiana’ funds or Hoosier taxpayers.

Posted by Marcia Oddi on September 4, 2009 01:25 PM
Posted to Courts in general | Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 14 NFP)

For publication opinions today (0):

NFP civil opinions today (6):

Lokmar Abdul-Wadood v. Officers Cross and Stang (NFP) - "Lokmar Abdul-Wadood, a prisoner at the Westville Correctional Facility, appeals pro se the small claims court's judgment in favor of Officers Cross and Stang (the “Officers”) on Abdul-Wadood's notice of claim. For our review, Abdul-Wadood raises two issues, which we restate as: 1) whether the small claims court erred when it entered judgment for the Officers,1 and 2) whether the small claims court erred when it refused to admit Abdul-Wadood's rebuttal evidence. Finding no error, we affirm."

Cheyenne Sorrill v. Southern Erectors (NFP) - "Cheyenne Sorrill (“Sorrill”) appeals an order of the Full Worker’s Compensation Board of Indiana (“the Board”), affirming the Single Hearing Member’s (“the Single Member”) decision whereby Sorrill was awarded compensation upon his claims arising from his permanent partial impairment and temporary total disability, and from bad faith conduct of Southern Erectors’ worker’s compensation insurer, but was denied an order for the payment of future medical benefits. We affirm in part, reverse in part, and remand for further proceedings."

In Henry A. Leopold and Andrea Leopold v. Robert S. Boone and Nancy D. Boone (NFP), an 8-page opinion, Judge Najam writes:

Henry and Andrea Leopold appeal from the trial court's grant of summary judgment to Robert and Nancy Boone. The Leopolds raise a single issue for our review, which we restate as whether a genuine issue of material fact precludes summary judgment in favor of the Boones on the Leopolds' claims for negligence. We affirm. * * *

The crux of this appeal is whether the Boones, as lessors of the property, owed a duty to Henry to prevent the dogs from entering onto State Road 38. The Boones rely upon Blake v. Dunn Farms, Inc., 274 Ind. 560, 413 N.E.2d 560 (Ind. 1980), for the proposition that only the owner and keeper of the dogs, and not the lessor of the property on which the dogs are kept, can be held liable for injuries caused by the dogs. The Leopolds attempt to distinguish Blake on several grounds. We agree with the Boones that Blake is controlling authority and stands for the proposition that the Boones did not owe a duty to Henry. * * *

That law is clear and mandates summary judgment in favor of the Boones, and the Leopolds do not suggest on appeal that Blake was wrongly decided or that its holding should be changed.[1]
_________
[1] Not that such an argument would prevail in this court. See Horn v. Hendrickson, 824 N.E.2d 690, 695 (Ind. Ct. App. 2005) (“[T]he Court of Appeals is well aware of the controlling precedents of our supreme court and has no desire to proceed in conflict with them. We are an intermediate appellate court.”).

Yvonne Williams v. Wesley W. Williams (NFP) - "Yvonne Williams (“Yvonne”) appeals the trial court's order requiring her to reimburse $11,582 to Wesley Williams (“Wesley”) for his overpayment of child support. Yvonne raises a number of issues, which we consolidate and restate as follows: I. Whether the trial court properly excluded Yvonne's Exhibit A from evidence; and II. Whether the trial court's judgment is supported by sufficient evidence. We affirm and remand."

Paternity of A.W.; A.W. v. J.R. (NFP) - "Here, the trial court dismissed the paternity action due to a lack of service on J.R. However, the record indicates that J.R. was served with a copy of the paternity petition on January 20, 2005. Thereafter, attorney Monty Arvin filed an appearance as J.R.’s counsel on February 28, 2005. Because J.R. was served with a copy of the paternity petition, the trial court erred in dismissing this action due to lack of service and abused its discretion by denying Mother’s motion for relief from order of dismissal.
Reversed and remanded."

Term. of Parent-Child Rel. of C.F. & A.F.; IDCS v. C.S. & C.F. (NFP)

NFP criminal opinions today (8):

Kenneth Lee Zamarron v. State of Indiana (NFP)

James Harold Higgason, III v. State of Indiana (NFP)

Nathaniel Richerson v. State of Indiana (NFP)

Marco Washington v. State of Indiana (NFP)

Elisha Drake v. State of Indiana (NFP)

Markeyta Ross v. State of Indiana (NFP)

Christopher Rosebrock v. State of Indiana (NFP)

Sherman Harris v. State of Indiana (NFP)

Posted by Marcia Oddi on September 4, 2009 12:44 PM
Posted to Ind. App.Ct. Decisions

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

In U.S. v. Noel (SD Ind., Judge Tinder), a 44-page opinion, Judge Kanne writes:

Dick Noel was charged with producing and possessing child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B). A jury found Noel guilty on all counts, and on June 1, 2007, the district court sentenced Noel to eighty years’ imprisonment to be followed by a lifetime of supervised release. Noel now appeals his conviction, arguing that (1) the district court erred in allowing Indiana State Police Detective Jennifer Barnes to testify that certain images in evidence met the federal definition of child pornography, and (2) the court’s jury instruction regarding the definition of a “lascivious exhibition of the genitals,” which was derived from United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), was confusing to the jury. Noel also claims that his sentence was unreasonable and that the district judge failed to personally address him and offer him the opportunity to allocute. Although we find the government’s approach in submitting certain evidence at trial troubling, none of the errors below require reversal of Noel’s conviction or sentence.

Posted by Marcia Oddi on September 4, 2009 12:27 PM
Posted to Ind. (7th Cir.) Decisions

Courts - Even more on: "You don’t see newspapers fighting to open court proceedings the way they used to, and people are starting to notice"

That title is from a column by Adam Liptak of the NY Times, discussed in this ILB entry Sept. 1st, along with a story from the Louisville Courier Journal quoting from a story headed "Judge closes Stinson jury selection to media."

Well, the LCJ did fight this week. See this ILB entry from Sept. 2nd, quoting another LCJ story:

Jon Fleischaker, an attorney representing the newspaper, asked for a hearing, saying the media has a right to attend jury selection.

“The press is the eyes and ears of the public,” he told the judge.

Fleischaker noted the newspaper won a similar argument five years ago when Judge Judith McDonald-Burkman barred the media from the courtroom during jury selection in the murder trial of then Louisville Metro Police Detective McKenzie Mattingly.

Gibson asked for a copy of that ruling and the court took a break.

Later in the afternoon, she agreed to let a Courier-Journal reporter into the courtroom, but said other reporters would have to wait to enter until some potential jurors had been dismissed — only a certain number of people were allowed in the courtroom because of fire codes, she said.

Now, in what looks like a total turnaround, there is live streaming video coverage of the trial. Here is the LCJ main Stinson trial page.

Posted by Marcia Oddi on September 4, 2009 08:36 AM
Posted to Courts in general

Ind. Gov't. - More on: "Indiana Funds May Not Be Done with Chrysler"

This June 24th ILB entry quoted a Business Week story that began: "Indiana Treasurer Richard Mourdock is contemplating yet another legal challenge to the terms under which Chrysler sped through reorganization." More from the story:

The Indiana pension funds that went all the way to the Supreme Court to try to stop the sale of Chrysler to Italy's Fiat Auto (FIA.MI) might be back again. Indiana Treasurer Richard Mourdock is mulling a legal motion to get the nation's highest court to rule whether the sale—which was finalized in bankruptcy court on June 10—was valid. * * *
If Mourdock decides to file the motion, the pension plans' hired counsel, aggressive Florida attorney Tom Lauria, will work pro bono. But the state's Solicitor General would also work on the case.

Today* the State of Indiana filed a petition for writ of certiorari before the Supreme Court of the United States.

Here is the petition

Here is the "Question Presented":

After providing Chrysler interim financing in January 2009, the U.S. Treasury conditioned the additional financing needed for Chrysler’s survival on a restructuring that would provide billions to Chrysler’s unsecured trade and labor creditors but leave secured creditors with only partial payment. Treasury then directed Chrysler to reorganize in a transaction that would be approved on an emergency basis under section 363 of the Bankruptcy Code rather than through confirmation of a chapter 11 plan. After Chrysler filed for bankruptcy, the court imposed a 15-day deadline for final competing bids, which were required to adopt Treasury’s prescribed treatment of Chrysler’s unsecured creditors. As expected, no competing bidders came forward, and 31 days after Chrysler commenced its chapter 11 case, the court approved a transaction disposing of nearly all of Chrysler’s assets on Treasury’s terms. Chrysler’s first lien lenders received a liquidationbased recovery while unsecured creditors received over $20 billion of going-concern value in cash, new notes and stock from the reorganized business. Affirming, the Second Circuit declared that “[t]he ‘side door’ of § 363(b) may well ‘replace the main route of chapter 11 reorganization plans.’”
The question presented is whether section 363 may freely be used as a “side door” to reorganize a debtor’s financial affairs without adherence to the creditor protections provided by the chapter 11 plan confirmation process.

_______
* Note that this ILB entry was orginally posted yesterday, Sept. 3rd, but reposted today with a link and quotes to the petition.

Posted by Marcia Oddi on September 4, 2009 08:29 AM
Posted to Courts in general | Indiana Government

Thursday, September 03, 2009

Ind. Decisions - 7th Circuit issues long-awaited decision in Annex Books

This ILB entry from August 24th was headed "Annex Books and New Albany DVD still awaiting decisions; September will mark the 4th anniversaries of their oral arguments before the 7th Circuit.". It began:

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.

Late today the 7th Circuit issued, in typescript, its opinion in Annex Books v. City of Indianapolis. In the 9-page opinion, Chief Judge Easterbrook writes:

Indianapolis revised its adultbusiness ordinances in 2003. These amendments expanded the definition of “adult entertainment business” to include any retail outlet that devotes 25% of more of its space or inventory to, or obtains at least 25% of its revenue from, adult books, magazines, films, and devices. (Adult “devices” include vibrators, dildos, and body-piercing implements.) See Indianapolis Rev. Code §807-103. Until 2003 the trigger had been 50%. Any “adult entertainment business” needs a license, must be well lit and sanitary, and may not be open on Sunday or between mid-night and 10 a.m. on any other day. Indianapolis Rev. Code §§ 807-202(a), -301(f), -302.
Four firms defined as “adult entertainment businesses” under the revised ordinance filed this suit, contending that the law violates the first and fourth amendments, applied to the states by the fourteenth. The district court enjoined one portion of the amended ordinance and held that plaintiffs are entitled to notice of inspections. 333 F. Supp. 2d 773, 787–89 (S.D. Ind. 2004). Indianapolis has not appealed from that portion of the decision. The district court rejected plaintiffs’ argument that the procedures for the issuance and judicial review of licenses permit the City to take too long, or afford it too much discretion. Id. at 778–83. Plaintiffs contest that portion of the decision, but it is supported by Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004), and Thomas v. Chicago Park District, 534 U.S. 316 (2002). Indianapolis gives businesses provisional licenses while judicial review proceeds, Rev. Code §807-207(c), so its ordinance is easier to defend than the one sustained in Littleton. See Andy’s Restaurant & Lounge, Inc. v. Gary, 466 F.3d 550, 556 (7th Cir. 2006). We have nothing else to add to this portion of the district court’s thoughtful opinion.
That leaves plaintiffs’ challenge to the definition of “adult entertainment business” and the imposition of any limits on these firms, other than whatever rules apply to bookstores and video-rental outlets in general. * * *
The parties have pressed on us dozens of precedents, from this circuit and elsewhere, that do more to show the problems of interpretation and application created by the fractured decision in Alameda Books than to establish any concrete legal rule. * * *
But one of these decisions, in addition to Abilene Retail (cited above), offers a little assistance. San Antonio adopted a dispersal rule (1,000 feet between adult businesses) that applied to a set of outlets defined to include stores that did nothing but sell books, tapes, and DVDs, which customers could not watch on premises. The fifth circuit held in Encore Videos, Inc. v. San Antonio, 330 F.3d 288 (5th Cir. 2003), that this ordinance violated the first amendment, because San Antonio had not offered any evidence that adult video stores lacking facilities for on-premises viewing create the same secondary effects as other establishments. If Indianapolis cannot produce such evidence, satisfying Justice Kennedy’s cost-benefit standard, its ordinance must meet the same fate as San Antonio’s.
The judgment is affirmed to the extent that it sustained the licensing procedures but is reversed to the extent it concerns the coverage and substantive requirements, and the case is remanded for an evidentiary hearing consistent with this opinion.

Posted by Marcia Oddi on September 3, 2009 07:06 PM
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions

Ind. Courts - Howard County Judge Jessup criticizes prosecutors’ procedures

The Kokomo Perspective today has a story that begins:

Editor’s note: When Superior Court II Judge Stephen Jessup presented his court’s budget to the Howard County Council during the budget hearings, he didn’t offer up a lot of ideas to cut costs, but had plenty to say about how the prosecutor’s office costs the county time and money. He accused prosecutors of lowering and dismissing charges when they fall behind with the trial schedule. Here’s a transcript of what he said.

Access the intro and transcript here.

See also this ILB entry from Sept. 18, 2008.

Posted by Marcia Oddi on September 3, 2009 02:54 PM
Posted to Indiana Courts

Courts - PACER to List “Sealed vs. Sealed” Cases

Supplementing recent ILB entries on PACER from Sept. 2, Aug. 26, and March 1, here is some information I just ran across today, but it was posted in March of this year on the Third Branch, the newsletter of the federal courts:

The Judicial Conference, in its continuing efforts to ensure appropriate public access to court files, has voted to make federal court sealed cases more readily apparent.

The Conference, acting at its March 17 meeting, voted to have Internet lists of civil and criminal cases in district courts include a case number and generic name, such as “Sealed vs. Sealed,” for each sealed case.

Such lists for each of the 94 district courts are generated by the Judiciary’s Case Management/Electronic Case Files system and are accessible through the Public Access to Court Electronic Records (PACER) system.

Currently, PACER lists of sequentially numbered district court cases skip the sealed cases, but a member of the public could query the missing case number directly and would see a message stating that the case “is under seal.”

The Conference in 2007 strongly encouraged district courts to change the message that PACER users receive when querying a sealed case—from “this case does not exist” to “this case is under seal.” The latest Conference action is consistent with and further implements the 2007 Conference policy by providing the public with information to confirm the existence of a sealed case.

The Conference left it up to the individual district courts to determine what additional information about sealed cases, such as the initials of the assigned judge or the date of filing, should be available to the public.

The ILB has had many entries about sealed cases at the state level. A good starting point is this entry from April 2, 2008.

Posted by Marcia Oddi on September 3, 2009 02:01 PM
Posted to Courts in general

Ind. Gov't. - "Failed Minn. health software ends up in court "

From the Houston Chronicle, a story by Martiga Lohn begins:

ST. PAUL, Minn. — Six years and more than $30 million ago, the Minnesota Department of Human Services set out to improve its method for processing health insurance applications.

The vision: caseworkers and customers tapping into an electronic system that could whiz through 1,000 applications a day, determining eligibility and matching a person with the right program in about 30 seconds.

It was not meant to be.

The project called HealthMatch was finally killed last year after the price tag ballooned, the software developer changed hands three times and the relationship between project leaders and state officials soured. Now the state is defending itself against a lawsuit from the contractor it fired, Dallas-based ACS State and Local Solutions Inc.

Meanwhile, Minnesota is still years away from an electronic system that could catch frequent eligibility errors that unfairly shut out some people while letting in others who shouldn't be in — costing the state millions.

Nearly 700,000 people are covered by three state health care programs.

"It's a significant setback for the state because the need to improve eligibility determination is still there, and it has not been addressed in any really significant way," said Deborah Junod, a project manager in the Legislative Auditor's office who reviewed the project.

ACS develops government systems for everything from toll collections to electronic welfare payment cards, working on Medicaid programs in states including Alaska, Georgia, Indiana, Missouri, North Carolina and Texas.

Sounds familiar? On August 21st, a story by Ken Kusmer of the AP also referenced ASC. A quote:

A coalition of companies led by Armonk, N.Y.-based IBM Corp. and Dallas-based Affiliated Computer Services Inc. ( ACS) privatized Indiana's processing of food stamps, Medicaid and other welfare benefits under a 10-year contract, now worth $1.34 billion, signed by Daniels in December 2006. * * *

Clients, advocates and lawmakers have harshly criticized the privatization initiative under which the state turned over 1,500 state welfare case workers to ACS in March 2007 and began rolling out automation including telephone call centers, a Web site and document imaging. Critics complain of lost documents, delays in approving benefits, lengthy call hold times and other problems.

Posted by Marcia Oddi on September 3, 2009 01:32 PM
Posted to Indiana Government

Ind. Law - "Sex offender ban gains steam"; "The Supreme Court did not provide guidance on this issue . . . by refusing to hear an appeal"

Robert Annis reports today in the Indianapolis Star:

Lebanon may follow the lead of several other area municipalities in banning sex offenders from public parks, but the possibility for such a law in Zionsville remains uncertain.

Last month, the Indiana Supreme Court declined to overturn Plainfield's ban on sex offenders in public parks, spurring Lebanon to move forward with writing a similar ordinance. Lebanon Mayor Huck Lewis said attorney Eileen Sims is drafting the ordinance, which will likely be presented to the City Council Sept. 14.

"We want to make sure we've researched it well and we're doing the right thing," Lewis said.

Lewis said an appeals process could be included in the ordinance, allowing certain offenders to be able to go to events with their family.

More than 50 registered sex offenders live in Lebanon, a handful within a few blocks of public parks.

In an earlier interview, Ken Falk, legal director of the American Civil Liberties Union of Indiana, said wanting to protect children was a noble goal, but he questioned whether such bans were effective.

"If a sex offender is going to a park (for criminal purposes), is a fine going to deter them from a crime they could go to prison for?" Falk asked.

Zionsville Town Manager Ed Mitro said a sex offender ban was discussed in 2006 after an assault on an 8-year-old boy on a YMCA trip at Creekside Park.

Mitro said the council decided to wait until the courts weighed in on the Plainfield ban. Now that it's settled, Mitro said the Town Council may move forward with a ban, although it may be a while due to other business facing the council.

"With as much as we have going on I don't know if we're going to have time," Mitro said. "We've got a lot of other fish to fry."

Council President Matt Price said in an e-mail Tuesday the council discussed the situation informally earlier this year while waiting on the Supreme Court's decision.

"I had understood that the Supreme Court did not provide guidance on this issue . . . by refusing to hear an appeal," Price said. "My sense is that the law is still quite unsettled in this area and that there are likely better ways to protect the public, rather than inviting lawsuits from the ACLU."

For background see this list of ILB entries, including this one from Aug. 31st headed "Court's trail confusing on sex offender rights".

Posted by Marcia Oddi on September 3, 2009 01:08 PM
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Government | Indiana Law

Ind. Decisions - Two today from the Supreme Court

In Mahmoud M. Basileh v. Arwa G. Alghusain, a 10-page, 5-0 opinion, Justice Rucker writes:

In this post-dissolution action the Indiana trial court relinquished its jurisdiction over matters of child support to a California trial court. At issue is the interplay between the Full Faith and Credit for Child Support Orders Act and the Uniform Interstate Family Support Act. We affirm the judgment of the trial court. * * *

Father appealed and the Court of Appeals affirmed the judgment of the trial court. In doing so the Court of Appeals reviewed Indiana's version of the Uniform Interstate Family Support Act (“UIFSA,” sometimes referred to as the “Uniform Act”) and the federal Full Faith and Credit for Child Support Orders Act (“FFCCSOA,” sometimes referred to as the “Federal Act”). The court determined: (1) Father was not a resident of Indiana within the meaning of the Federal Act, and (2) the Federal Act preempts the Uniform Act because of a conflict between the two statutes. Basileh v. Alghusain, 890 N.E.2d 779 (Ind. Ct. App. 2008). We granted transfer to address the Court of Appeals' preemption determination. We summarily affirm its determination concerning residency. * * *

In concluding that the Federal Act preempts Indiana's version of the Uniform Act, the Court of Appeals determined there was a “crucial” distinction between the two; namely, the Uniform Act requires the parties' written consent to another state's jurisdiction, whereas the Federal Act does not. Basileh, 890 N.E.2d at 785. This conclusion hinged on the court's interpretation of the word “or” in I.C. § 31-18-2-5 that links subsection (a)(1) (the nonresidency requirement) and subsection (a)(2) (the consent requirement). * * *

The application of general rules of federal preemption leads us to conclude that Congress did not intend the Federal Act to preempt the Uniform Act. Rather, it appears that FFCCSOA was intended to follow the contours of UIFSA. There is no indication in the text of FFCCSOA or its legislative history of any intent to preempt UIFSA. And importantly for our purposes the specific provisions here at issue in Indiana's version of the Uniform Act – the nonresidency requirement and the consent requirement – are closely modeled after the federal version of the Uniform Act. “The very fact that Congress mandated that all fifty states adopt UIFSA strongly mitigates against a construction of FFCCSOA that would impliedly preempt UIFSA to any degree.” LeTellier v. LeTellier, 40 S.W.3d 490, 498 (Tenn. 2001). We therefore also conclude that the FFCCSOA does not preempt the Indiana version of UIFSA. * * *

Although we conclude Congress did not intend that the Federal Act preempt Indiana's version of the Uniform Act, we do acknowledge the Uniform Act contains a jurisdictional provision that is absent in the Federal Act, namely: a consent requirement. More specifically, I.C. § 31-18-2-5(a) essentially provides that an Indiana court retains continuing, exclusive jurisdiction “if” a party or related child remains in Indiana, “or until” each party has filed written consent to jurisdiction elsewhere. The Court of Appeals in this case interpreted this provision to mean that Indiana retains jurisdiction unless both of these conditions are met. The net effect of the court's interpretation is that in order for Indiana no longer to retain continuing jurisdiction both the nonresidency requirement and the written consent requirement must be met. However we are of the view that the statute is ambiguous on this point because it is susceptible to an alternative interpretation. * * *

In this case it is of no moment that the parties did not file a written consent with the Indiana court for the California court to modify the Indiana support order. Rather, the Indiana court lost its jurisdiction because Father, like Mother and the children, is no longer an Indiana resident.

We affirm the judgment of the trial court.

In Brenda S. Wagner and Darren M. Wagner v. Bobbi J. Yates, et al, an 11-page, 5-0 opinion, Justice Rucker writes:

Interpreting an insurance policy as including set-off and anti-stacking provisions, the trial court granted summary judgment in favor of Insurer. Concluding both provisions are ambiguous, we strictly construe the policy against the Insurer and reverse the judgment of the trial court. * * *

I * * * Applying our strict construction review to the set-off provision in American Family's Insurance's policy, we conclude the trial court erred in granting summary judgment in favor of American Family. On this issue the judgment of the trial court is reversed.

II * * * We are of the view that at most the provision at issue is not an anti-stacking provision at all; and at least the provision is ambiguous and therefore unenforceable. Because of this ambiguity we strictly construe the provision against American Family and in favor of Wagner. See Beam, 765 N.E.2d at 528. On this issue the trial court also erred in granting summary judgment in American Family's favor.

We reverse the judgment of the trial court.

Posted by Marcia Oddi on September 3, 2009 12:50 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Michael England v. Lori England n/k/a Lori Alicea (NFP) - "Michael England (“Husband”) appeals a child support arrearage order entered in favor of Lori Alicea (“Wife”). The sole issue is whether the trial court erred in calculating his accumulated child support arrearage. We affirm."

In Jon Huff and Mary Huff v. Mike Stoffel and Rose Stoffel (NFP), a 15-page opinion, Judge Bradford writes:

Mike Stoffel and Rose Stoffel brought an action against Jon Huff and Mary Huff alleging breach of contract and constructive fraud. The trial court found in favor of the Stoffels and awarded them $11,525 in damages, $14,036.10 in attorney’s fees, and costs. The Huffs appealed, and this court reversed and remanded for vacation of the trial court’s judgment on two grounds: (1) the trial court’s finding of constructive fraud was based upon an unreasonable interpretation of the contract; and (2) the contract was unenforceable under Indiana Code section 32-21-5-10(c) (2005). The Stoffels filed a petition for rehearing, pointing out that Indiana Trial Rule 9(C) requires a party denying the occurrence of a condition precedent—such as compliance with section 32-21-5-10(c)—to plead it with particularity, which the Huffs did not do. Accordingly, we grant the petition for rehearing, vacate that part of our earlier decision concluding that the contract was unenforceable under section 32-21-5-10(c), remand to the trial court for a factual determination on this issue, and consider the Huffs’ recusal challenge. In all other respects we affirm our original decision.

Term. of Parent-Child Rel. of B.B. and A.P.; M.B. v. IDCS (NFP)

NFP criminal opinions today (2):

Clifton K. Miller v. State of Indiana (NFP)

Cedric Ford v. State of Indiana (NFP)

Posted by Marcia Oddi on September 3, 2009 12:08 PM
Posted to Ind. App.Ct. Decisions

Courts - "Pfizer Inc. to pay Indiana nearly $3.7 million in historic settlement"

From a NY Times story by Gardiner Harris headed "Pfizer Pays $2.3 Billion to Settle Marketing Case ":

WASHINGTON — The pharmaceutical giant Pfizer agreed to pay $2.3 billion to settle civil and criminal allegations that it had illegally marketed its painkiller Bextra, which has been withdrawn.

It was the largest health care fraud settlement and the largest criminal fine of any kind ever. * * *

The government charged that executives and sales representatives throughout Pfizer’s ranks planned and executed schemes to illegally market not only Bextra but also Geodon, an antipsychotic; Zyvox, an antibiotic; and Lyrica, which treats nerve pain. While the government said the fine was a record sum, the $2.3 billion fine amounts to less than three weeks of Pfizer’s sales.

Much of the activities cited Wednesday occurred while Pfizer was in the midst of resolving allegations that it illegally marketed Neurontin, an epilepsy drug for which the company in 2004 paid a $430 million fine and signed a corporate integrity agreement — a companywide promise to behave.

John Kopchinski, a former Pfizer sales representative whose complaint helped prompt the government’s Bextra case, said that company managers told him and others to dismiss concerns about the Neurontin case while pushing them to undertake similar illegal efforts on behalf of Bextra.

“The whole culture of Pfizer is driven by sales, and if you didn’t sell drugs illegally, you were not seen as a team player,” said Mr. Kopchinski, whose personal share of the Pfizer settlement is expected to exceed $50 million. Mr. Kopchinski left Pfizer in 2003.

Altogether, six whistle-blowers will collect $102 million from the federal share of the settlement and more from states’ shares. Forty-nine states and the District of Columbia will collect $331 million, with New York State alone getting $66 million. Only South Carolina chose not to participate in the settlement.

A lengthy press release from Indiana Attorney General Zoeller is available here. Some quotes:

Under the settlement with Pfizer, the total obtained for the Indiana Medicaid program -- including both the federal and state share -- will be $9,520,231.16 in restitution and other recovery. Of that, the state’s share of the multi-state settlement will be $3,694,888.19.

Indiana Attorney General Greg Zoeller noted that the settlement is based on nine qui tam cases (pronounced “key tam”) involving whistleblowers: nine private individuals who filed lawsuits under state and federal False Claims laws. The suits were filed in federal courts in Massachusetts, Pennsylvania and Kentucky and later consolidated into one case; none of the whistleblowers are from Indiana.

“This case highlights the importance of qui tam laws that allow whistleblowers to file suit on behalf of the government to recover public funds paid on false claims,” Zoeller said. “Our office will work aggressively with employees in whistleblower cases to unearth fraud against the public treasury and recoup funds on behalf of taxpayers.”

Allen Pope, director of the Indiana Medicaid Fraud Control Unit, said, “This is the type of result the Indiana Legislature hoped for when it adopted a whistleblower False Claims Act. Nine whistleblowers, insiders who knew what Pfizer was doing, are sharing a substantial financial reward for their help in calling the government’s attention to this illegal activity.” * * *

Through a complex reimbursement process established by federal law, all of the whistleblowers’ share will be paid out of the federal share of Indiana’s recovery

Posted by Marcia Oddi on September 3, 2009 08:33 AM
Posted to Courts in general

Wednesday, September 02, 2009

Courts - Federal court officials recoil at RECAP

Recall this ILB entry from August 26th headed "Changes in store for PACER?" and this one from March 1 quoting Senator Lieberman's letter to the federal courts asking why they continue to charge $0.08 per page for access to documents?

Earlier this month a resource called RECAP (PACER spelled backwards) was introduced as a Firefox add-on. RECAP automatically adds a duplicate of whatever a user downloads from PACER to a public archive hosted by the Internet Archive. It also shows you if your item has already been downloaded, saving you the $0.08 per page.

The ILB hasn't installed RECAP, for the reason that most of my PACER downloads are opinions, and there is no charge for opinions on PACER.

But various federal court officials have reacted strongly. For one, they immediately sent out to all libraries and other entities that have free PACER privileges an announcement that they were prohibited from using RECAP.

Mary Pat Gallagher of the New Jersey Law Journal today has a long article about RECAP, headed "Free Web Access to Judicial Records Gladdens Public but Worries Some Courts." The article ends with a useful quote from Michel Ishakian, chief of the Public Access and Records Management Division of the Administrative Office of the Courts:

The bottom line, says Ishakian, is "when people pay for access, they can do with those documents what they will."

Posted by Marcia Oddi on September 2, 2009 03:39 PM
Posted to Courts in general

Ind. Gov't. - New public access counselor, and new head of DFI, named by Governor [Updated]

Here is the press release:

Governor Mitch Daniels today named former bank executive David Mills as director of the Indiana Department of Financial Institutions (DFI) and attorney Andrew J. Kossack as state public access counselor.

Mills, of Zionsville, previously worked in corporate banking for more than 37 years with National City Bank, retiring in 2007 as senior vice president and deputy chief credit officer. As DFI director, he will serve as the chief executive and administrative officer of the state agency that provides regulatory oversight of state chartered financial institutions. Mills received his undergraduate degree from Indiana University - Bloomington and is a graduate of the Herbert V. Prochnow Graduate School of Banking at the University of Wisconsin. He currently serves as the director of programs for the Indiana Office of Faith Based and Community Initiatives.

Mills will replace Judith Ripley, who has served as DFI director since July 2005. She is leaving her post and will join Capitol Assets, LLC in Indianapolis. Ripley has a combined 11 years of regulator oversight service in state government, first at the Indiana Utility Regulatory Commission and then with DFI.

Kossack, of Carmel, is currently a labor and employment law associate at Barnes & Thornburg LLP in Indianapolis. He received his undergraduate degree from Butler University and his law degree from Indiana University School of Law – Indianapolis. He previously served as a law clerk for United States Magistrate Judge William T. Lawrence and was editor of the Indiana Law Review. As public access counselor, Kossack will provide advice and assistance concerning Indiana's public access laws to members of the public and government officials and their employees. He replaces Heather Neal, who has joined the Indiana Department of Education as deputy chief of staff.

The appointments of Mills and Kossack will be effective September 7.

[Update] Perhaps the Governor's press person got it wrong. According to his B & T resume, apparently no longer available except via the Goggle cache, Mr. Kossack was "an editor," not "the editor," of the Indiana Law Review, and was not "a law clerk," but "an intern," to United States Magistrate Judge William T. Lawrence. On the other hand, a number of Mr. Kossack' very laudable accomplishments were not mentioned in the release today.

Posted by Marcia Oddi on September 2, 2009 02:42 PM
Posted to Indiana Government

Ind. Decisions - Supreme Court decides one

in Robert Rovai v. Ann Marie Rovai, a 5-page, 5-0 opinion, Chief Justice Shepard writes:

Employing an arrangement relatively common to dissolution decrees, the trial court awarded the marital residence to the wife and ordered her to pay husband a share of its value when any one of certain later events occur. Husband argues that the statute on civil judgments entitles him to post-judgment interest running from the date of the dissolution decree. We hold instead that the dissolution statutes authorize a court to assess interest, or not, in the course of fashioning a just division of assets.

Posted by Marcia Oddi on September 2, 2009 01:35 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 12 NFP)

For publication opinions today (4):

This case, Bradley G. Shively v. State of Indiana , brings up the issues relating to court-appointed counsel for the indigent. The ILB has looked at this issue most recently in the August 20th entry, "Channel 6 finds public defender appointed upon request, with no effort at determining financial need." In today's 11-page opinion, Judge Barnes writes:

Bradley Shively appeals his convictions for Class D felony domestic battery, Class A misdemeanor battery, and Class D felony criminal confinement, for which the trial court entered judgment as a Class A misdemeanor. We reverse and remand.
The sole issue is whether the trial court properly denied Shively’s request for court-appointed counsel.

[The opinion goes into a thorough discussion of Shively's finances and the applicable law.]

Although we understand the reluctance of a trial court to appoint an attorney for one who may be “gaming the system,” in this instance we do not believe sufficient care was given to a close examination of Shively’s financial situation. The pre-trial inquiries regarding indigency were not ones that truly analyzed Shively’s means to pay for a private attorney. Such hearings should have considered not only his actual income as of the time of the hearings, but also his fixed monetary obligations, including his obligations to his family. The trial court conducted a proper, more thorough examination of Shively after trial, and its conclusion at that time that Shively was indigent is inconsistent with its earlier findings that he was not. In other words, the trial court abused its discretion in refusing to appoint counsel for Shively before trial because it lacked sufficient information to conclude that he was not indigent at that time.

We reverse Shively’s convictions because the trial court failed to adequately ascertain before trial whether he was indigent for purposes of court-appointed counsel. If it were not for the fact that Shively was found indigent after trial, we might remand for the trial court to further consider whether Shively is indigent. As this case stands now, however, Shively is indigent and should be considered to still be so for purposes of further proceedings on remand, unless there is evidence his financial situation has markedly improved.

In Portside Energy v. Northern Indiana Commuter Transportation District, a 27-page opinion, CJ Baker writes:

Appellant-plaintiff Portside Energy Corporation (Portside) appeals the trial court's grant of summary judgment in favor of appellee-defendant Northern Indiana Commuter Transportation District (NICTD), in which the trial court denied Portside's request for a declaratory judgment. Specifically, Portside argues that the trial court erred in determining that an indemnification agreement between Portside and NICTD was enforceable as a matter of law. Portside also maintains that the trial court erred in ordering it to pay NICTD's attorneys fees and interest on the amount that it allegedly owed NICTD. Concluding that the trial court properly granted NICTD's motion for summary judgment, we affirm. * * *

In light of our discussion above, we conclude that the trial court properly determined as a matter of law that NICTD did not engage in willful and wanton misconduct so as to negate the applicability of the indemnity provisions of the agreement between Portside and NICTD. Moreover, the damages that NICTD sustained to its train cars obligated Portside to pay for the loss under the agreement. Portside has not shown that NICTD engaged in the transfer of nondelegable duties, that the agreement was a construction contract within the meaning of Indiana Code section 26-2-5-1, or that NICTD had breached the agreement.

We also note that NICTD was not estopped from pursuing its claims against Portside and NICTD did not waive its rights to proceed against it. Finally, we find that the trial court properly ordered Portside to pay NICTD's attorney fees and prejudgment interest. As a result, we conclude that the trial court properly granted NICTD's motion for summary judgment.

In Bruce T. Harris and Allegheny Casualty Company v. State of Indiana , a 10-page opinion, Judge Barnes writes:

Bruce T. Harris and Allegheny Casualty Company (collectively “Harris and Allegheny”) appeal the trial court's denial of their motion for relief from judgment, which sought to set aside a bond forfeiture judgment. We remand.

The dispositive issue is whether the trial court provided adequate notice to Harris and Allegheny of orders to produce a criminal defendant. * * *

In the present case, we conclude that there is insufficient evidence in the record that the statutorily-required notices were mailed to both the bail agent and surety. * * * Here, the returned envelope of the notice sent to Allegheny at its listed Newark address arguably might be sufficient proof of mailing as to it, but there is no comparable evidence of mailing to Harris. Under the present statute, mailing to both the surety and the bail agent is required. * * * Instead, as to Harris there are only handwritten notations on the bottom of two court orders, which the trial court interpreted as sufficient proof that a court staff member mailed the required notices.

We cannot agree with the trial court that this was sufficient proof, even though the trial court is presumed to know its own records. * * *

We remand for further proceedings consistent with this opinion, and with directions to vacate the bond forfeiture judgment against Harris and Allegheny if no further evidence showing service of notice is forthcoming.

In Austin C. Weatherspoon v. State of Indiana , an 8-page opinion, Judge Vaidik writes:

Austin C. Weatherspoon appeals his conviction for Class B felony robbery, contending that the jury was improperly instructed. Specifically, Indiana Jury Rule 20(a)(8) provides that jurors, including alternates, are permitted to discuss the evidence among themselves in the jury room during recesses from trial when all are present, as long as they reserve judgment about the outcome of the case until deliberations commence. Under Indiana law, alternates are not allowed to deliberate with the jury. Weatherspoon argues that discussions are the equivalent of deliberations and therefore he was denied his constitutional and statutory right to a jury of twelve when the alternates were instructed that they were permitted to discuss the evidence during recesses from trial. Because Jury Rule 20(a)(8) makes a clear distinction between discussions and deliberations and because there is no evidence that the alternates participated in the deliberations, we affirm Weatherspoon’s conviction.

NFP civil opinions today (3):

Digital Lifestyles v. Robert Lynn (NFP) - "Digital Lifestyles, LLC, appeals the trial court’s refusal to enforce Digital’s Kentucky judgment against Robert Lynn. We reverse and remand.

"The sole issue for our review is whether the trial court erred in refusing to enforce Digital’s Kentucky judgment against Lynn.

"Digital argues that the trial court erred in refusing to enforce its Kentucky judgment. Specifically, Digital contends that the trial court erred when it 1) concluded that the Kentucky trial court lacked jurisdiction; 2) concluded that Digital failed to comply with the Indiana statutory service of process requirement; and 3) struck Digital’s amended affidavit as untimely filed. We address each of its contentions in turn."

Paul Phillips v. City of Richmond (NFP) - "Appellant-petitioner Paul Phillips appeals the trial court's order affirming the decision of appellee-petitioner City of Richmond, Indiana's, Police Department Merit Commission (the Commission) to demote Phillips from Lieutenant to Patrolman. Phillips argues that the Commission's decision was arbitrary, capricious, and not based on substantial evidence. He also emphasizes that the Commission failed to enter any findings of fact or conclusions of law. Finding that sufficient factual findings can be inferred from the Commission's decision and that the decision is based on substantial evidence and neither arbitrary nor capricious, we affirm."

Term. of Parent-Child Rel. of D.W.; L.A. & J.S. v. IDCS (NFP)

NFP criminal opinions today (9):

Glenn Edmond v. State of Indiana (NFP)

Aster Wilson, III v. State of Indiana (NFP)

John Kader v. State of Indiana (NFP)

Paul Benjiman Murphy v. State of Indiana (NFP)

Tracy Goodall v. State of Indiana (NFP)

Ross Crawford v. State of Indiana (NFP)

Vance Bridgemon v. State of Indiana (NFP)

Robert E. Ginsbach v. State of Indiana (NFP)

James Miller v. State of Indiana (NFP)

Posted by Marcia Oddi on September 2, 2009 12:21 PM
Posted to Ind. App.Ct. Decisions

Law - "Case Shows Limits of Sex Offender Alert Programs "

The NY Times' Monica Davis reported yesterday, Sept. 1:

In all 50 states, registries of sex offenders have grown sophisticated and accessible in recent years, a response to high-profile attacks on children. People can search their neighborhoods for former convicts on state-run Web sites, sign up for private services that alert them if an offender moves nearby, even download an iPhone application, “Offender Locator.”

But the case of Phillip Garrido, the California man accused of kidnapping a young girl and holding her captive for 18 years, is reigniting a debate about the usefulness of the government-managed lists and whether they might create a false sense of public safety.

Mr. Garrido, who had been convicted of kidnapping and rape in the 1970s, was listed, as required, on California’s sex-offender registry (complete with a description of the surgical scar on his abdomen and his 196-pound weight) and had dutifully checked in with the local authorities each year for the past decade — all while, officials say, his victim and the two children he is accused of fathering with her were living in his backyard.

Sex offender lists have made far more information readily available to the public and the police than before, but experts say little research is available to suggest that the registries have actually discouraged offenders from committing new crimes.

And some experts say that the lists may lead people to presume that anyone registered must also be elaborately monitored, when, in truth, monitoring ranges enormously from place to place and state to state. In some cases, it amounts to little more than an offender mailing a postcard with his address to a police department once a year.

“We’ve come to see these registries as a panacea that is going to resolve all sex offender problems,” said Richard Tewksbury, a professor of justice administration at the University of Louisville who has written extensively about the effects of registries. “That’s just not realistic.”

In some jurisdictions, officials tend to focus much of their attention on the estimated 100,000 former offenders nationally who fail to register, give false addresses or disappear, and less on the hundreds of thousands, like Mr. Garrido, who comply. And while some authorities have extensive contact with their registered offenders (Illinois has special monitors who follow those deemed most dangerous for life, looking for even subtle signs of crimes), those in some other states spend little time with offenders once they have filed an address.

Federal efforts to create a single, consistent registration system have been slowed by states’ concerns about mounting costs, legal challenges and other issues. Deadlines for states complying with a federal plan approved by Congress in 2006 have been delayed a year, until July 2010.

That is only the beginning of this lengthy story.

Posted by Marcia Oddi on September 2, 2009 09:28 AM
Posted to General Law Related

Ind. Decisions - More on: "Sex offender ID law misapplied, higher court says"

Updating this ILB entry from Julu 10th, Sophia Voravong of the Lafayette Journal Courier reports today:

A convicted sex offender who assumed a dead man's identity -- apparently to avoid the state's sex offender registry -- was resentenced Monday to 26 years and six months in prison.

David M. Harris, 55, told Judge Don Daniel of Tippecanoe Circuit Court that he plans to appeal Daniel's decision. But Harris admitted that he knowingly committed the crimes.

"I realize I did do wrong," he said. "I just hope there was no undue hardship. ... I'm going to say sorry and hope to move on in the future."

Harris was found guilty of felony counts of forgery, application fraud, identity deception and failure to register as a sex offender after a bench trial before Daniel in July 2008.

He also was found guilty of misdemeanor failure to possess a valid Indiana driver's license or identification card, a requirement that took effect July 1, 2006.

The Indiana Court of Appeals, however, dismissed two convictions against Harris earlier this summer, ordering that Harris be sentenced again.

It found that Harris was not guilty of application fraud because the prosecutor's office could not prove that he applied in Tippecanoe County for a driver's license under the name of Richard Blair.

The unanimous higher-court opinion also ruled that Harris does not have to carry government-issued ID because his two convictions for child molesting occurred before the new law took effect.

Tippecanoe County had been applying that legislation to all registered sex offenders. As of Monday, the "frequently asked questions" portion of Indiana's Sex and Violent Offender Registry did not specify that it applies only to people convicted after July 1, 2006.

Tippecanoe County Deputy Prosecutor Laura Zeman said the discrepancy has not yet been settled by Indiana's upper courts. But she said the Indiana Prosecuting Attorney's Council has advised her office to not prosecute similar cases in the meantime.

Posted by Marcia Oddi on September 2, 2009 09:24 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Could Muncie Mayor Sharon McShurley lose her home?"

Nick Werner of the Muncie Star-Press reports today in a story that begins:

MUNCIE -- A dispute over Mayor Sharon McShurley's property taxes could result in the county auctioning her home in a tax sale, Delaware County attorney Mike Quirk has warned.
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In response, McShurley, a Republican, accused Quirk, a Democrat, of playing politics.

The Delaware County auditor's office has billed McShurley for $7,155 after identifying her as one of more than 60 property owners who have held more than one homestead exemption at a given time.

Homestead exemptions deduct a significant portion of a property's assessed valuation for taxing purposes. A $100,000 property with a homestead credit, for example, would be taxed at $55,000.

Taxpayers, however, are only allowed a homestead exemption for the property they live in.

Auditor Judy Rust determined $7,155 is the amount McShurley underpaid on a rental property for the last seven years, which is as far back as the county's electronic tax records go.

McShurley, who acknowledges she underpaid, has said she plans on paying for only the last three years, arguing Indiana law limits counties from billing taxpayers retroactively any further.

Delaware County attorney Mike Quirk responded that the three-year limitation applies only in situations where a property's assessed value is in question, and not in situations where the property's homestead status is in question.

A spokeswoman for the Indiana Department of Local Government Finance said the DLGF interpreted the law the same way McShurley did.

Any decisions, however, are left to local officials.

Posted by Marcia Oddi on September 2, 2009 09:19 AM
Posted to Indiana Government

Courts - Still more on: "You don’t see newspapers fighting to open court proceedings the way they used to, and people are starting to notice"

Updating this ILB entry from yesterday about judges closed the courtroom during jury selection -- the entry ended with a quote from the Louisville Courier Journal story about the ongoing trial of former Pleasure Ridge Park football coach Jason Stinson, who is "charged with reckless homicide and wanton endangerment in the heat-stroke death of PRP sophomore lineman Max Gilpin after he collapsed at an Aug. 20, 2008, practice."

Today's story on the Stinson trial, by Jason Riley of the LCJ, includes this about access to juror selection:

Also on Tuesday, [Judge] Gibson initially ordered the media to leave the courtroom during jury selection. A sheriff’s deputy for several minutes also would not let the media into the courtroom to hear motions on evidence, until a lawyer for The Courier-Journal intervened.

Jon Fleischaker, an attorney representing the newspaper, asked for a hearing, saying the media has a right to attend jury selection.

“The press is the eyes and ears of the public,” he told the judge.

Fleischaker noted the newspaper won a similar argument five years ago when Judge Judith McDonald-Burkman barred the media from the courtroom during jury selection in the murder trial of then Louisville Metro Police Detective McKenzie Mattingly.

Gibson asked for a copy of that ruling and the court took a break.

Later in the afternoon, she agreed to let a Courier-Journal reporter into the courtroom, but said other reporters would have to wait to enter until some potential jurors had been dismissed — only a certain number of people were allowed in the courtroom because of fire codes, she said.

Recall from yesterday's ILB entry that the reason given by the judge in the Presley case, which is now pending before the SCOTUS, was the courtroom "was too small."

Posted by Marcia Oddi on September 2, 2009 08:32 AM
Posted to Courts in general

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.

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.

"State targets fax-blasting health care insurers" - From the Indianapolis Star, this story by Tom Spalding that begins:

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.

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.

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:

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.
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.

U.S. v. Zahursky (ND Ind., Judge Lozano) - Judge Tinder writes:

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.
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 Times linked, via the Cornell Law Supreme Court collection, to Press Enterprise v. Superior Court (478 US 1 - 6/30/1986).

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.
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.

Today the Louisville Courier Journal has this continually updated story, originally headed "Judge closes Stinson jury selection to media," that includes these quotes:

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

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 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.

The LCJ has made available the 14-page EPA coal ash pond surveys.

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.

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.

In Virginia Meister v. State of Indiana and City of Union City, Indiana, a 14-page, 2-1 opinion, Judge Friedlander writes:

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. * * *

[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.

NFP civil opinions today (6):

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.

Next week's oral arguments before the Court of Appeals (week of 9/7/09):

None currently scheduled.

The past COA webcasts are accessible here.

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

Posted by Marcia Oddi on August 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.

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.

My Thoughts: Absolutely incredible!

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.
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."

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:

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. * * *
The General Assembly allowed judicial discretion to be further eroded with the budget provision. It should reconsider the issue in its upcoming session.

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.)

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. * * *

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.

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:

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. * * *

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.

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."

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. * * *

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.”

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."

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.

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.

For background, see this ILB entry from August 14th, and this ISBA webpage, including a resource guide.

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.

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.

Here are earlier ILB entries on the Majestic Star Casino.

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 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.

The story includes a link to this July 8, 2009 memo from the Indiana Department of Local Government Finance.

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 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.

In Mark P'Pool v. Indiana Horse Racing Commission (NFP), a 16-page opinion, Judge Robb writes:

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. * * *

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.

In this Order, issued August 24th, the Supreme Court unanimously denies the IDCS's petition to transfer.

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. * * *

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.

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.

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.

“All aspects of PACER are in bounds if users want to discuss them,” said Administrative Office spokesman Richard Carelli.

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.

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.
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In 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):

The Invol. Term. of the Parent-Child Rel. of S.S.; M.S. and K.S. v. Marion Co. Dept. of Child Svcs. (NFP)

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

September 2009
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Legal Blawgs Web Archive Collection

Legal Blawgs Web Archive Collection

The Indiana Law Blog

Focus is on Indiana law, and on interesting developments in law, government, and more (not just in Indiana).

Saturday, September 05, 2009

Courts - More on: SCOTUS will hear case next month, preceding the "First Monday in October"

Ind. Gov't. - "Lights Out at the Penitentiary: Strapped States are Shutting Prisons"

Ind. Decisions - "Federal court ruling would let city's adult shops run 24/7"

Friday, September 04, 2009

Courts - Relying on Indiana law, Illinois federal judge allows woman to sue bank for lax security after $26,000 stolen by hacker [Updated]

Ind. Decisions - One case granted transfer Sept. 3rd

Courts - EEOC award of nearly $330,000 in damages to a former Marion County chief deputy coroner who claimed reverse discrimination

Ind. Courts - "'Special master' OK'd in Gabriele will case"

Ind. Gov't - "Petitions U.S. Supreme Court, Seeks Equitable Compensation for Indiana Funds Affected by Chrysler, LLC Bankruptcy"

Ind. Decisions - Court of Appeals issues 0 today (and 14 NFP)

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

Courts - Even more on: "You don’t see newspapers fighting to open court proceedings the way they used to, and people are starting to notice"

Ind. Gov't. - More on: "Indiana Funds May Not Be Done with Chrysler"

Thursday, September 03, 2009

Ind. Decisions - 7th Circuit issues long-awaited decision in Annex Books

Ind. Courts - Howard County Judge Jessup criticizes prosecutors’ procedures

Courts - PACER to List “Sealed vs. Sealed” Cases

Ind. Gov't. - "Failed Minn. health software ends up in court "

Ind. Law - "Sex offender ban gains steam"; "The Supreme Court did not provide guidance on this issue . . . by refusing to hear an appeal"

Ind. Decisions - Two today from the Supreme Court

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

Courts - "Pfizer Inc. to pay Indiana nearly $3.7 million in historic settlement"

Wednesday, September 02, 2009

Courts - Federal court officials recoil at RECAP

Ind. Gov't. - New public access counselor, and new head of DFI, named by Governor [Updated]

Ind. Decisions - Supreme Court decides one

Ind. Decisions - Court of Appeals issues 4 today (and 12 NFP)

Law - "Case Shows Limits of Sex Offender Alert Programs "

Ind. Decisions - More on: "Sex offender ID law misapplied, higher court says"

Ind. Gov't. - "Could Muncie Mayor Sharon McShurley lose her home?"

Courts - Still more on: "You don’t see newspapers fighting to open court proceedings the way they used to, and people are starting to notice"

Tuesday, September 01, 2009

Courts - "D.C. Circuit Begins Mandatory Electronic Filing "

Ind. Decisions - "Lap-Band Surgery to be Covered By Pizza Shop"

Ind. Courts - "In court case about path, a loss looks a lot like a win"

Law - "Blast faxes" and Robo-Calls

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

Ind. Decisions - Four 7th Circuit opinions today involving Indiana cases

Courts - More on: "You don’t see newspapers fighting to open court proceedings the way they used to, and people are starting to notice"

Ind. Law - It's the Law: Part 2 of "Death penalty explained in three parts"

Ind. Gov't. - "Hoosier welfare winners and losers"

Ind. Decisions - Another NFP COA decision reclassified

Environment - "Kentucky and Indiana lead nation in coal ash ponds"

Monday, August 31, 2009

Ind. Decisions - Transfer list for week ending August 28, 2009

Courts - "A.C.L.U. Lawyers Mine Documents for Truth "

Courts - "You don’t see newspapers fighting to open court proceedings the way they used to, and people are starting to notice"

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

Ind. Decisions - "Court's trail confusing on sex offender rights"

Ind. Law - "Mediation not about feeling good; it’s about making good decisions"

Ind. Decisions - Upcoming oral arguments this week and next

Sunday, August 30, 2009

Ind. Gov't. - "Local disasters prompt Clark County to seek ideas to back up documents"

Courts - SCOTUS will hear case next month, preceding the "First Monday in October"

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"

Environment - Wind turbines "can appear on Doppler radar like a violent storm or even a tornado"

Ind. Law - Continuing on with: "Apparently there are all sorts of surprises in the special session budget"; my thoughts

Saturday, August 29, 2009

Ind. Decisions - More on: "Judges deal double defeat to songwriter who sued Lake tourism bureau"

Friday, August 28, 2009

Ind. Gov't. - Allen County's ordinances online [Updated]

Ind. Decisions - "Court drops abuse suit against Fort Wayne. diocese"

Courts - "D.C. Circuit Tosses FCC Rule Capping Cable Subscribers"

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

Ind. Decisions - 7th Circuit issues one Indiana opinion today

Ind. Courts - Summit on Racial Disparities in the Juvenile Justice System

Ind. Decisions - "High court denies Gary casino appeal: Ruling clears way for trial of casino mogul's lawsuit against city"

Ind. Decisions - "Seventh Circuit enforces requirement that district judges address non-frivolous sentencing arguments"

Thursday, August 27, 2009

Ind. Gov't. - "St. Joseph County to crack down on homestead exemption cheats"

Ind. Gov't. - "Sex Registry Costs Increasing But Can't Be Cut "

Ind. Decisions - An interesting non-Indiana opinion today from 7th Circuit

Ind. Courts - "Marion County Clerk’s office now accepting credit cards"

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

Ind. Decisions - Another NFP COA decision reclassified

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