Wednesday, September 09, 2009

Ind. Decisions - Disciplinary ruling in Perry case

The ILB has had a number of entries on Teresa Perry, the young Evansville attorney charged with meth-related offenses in 2007.

This one from May 28, 2008 quotes from a story by Kate Braser of the Evansville C&P:

As he pleaded with a judge to spare his client from jail time for her meth convictions, attorney Doug Walton said when he took the LSAT with Teresa Perry years ago, he never imagined he'd one day defend her in court.

"She was bright-eyed and pursuing her goal of becoming a lawyer," Walton said, describing his client as "truly remorseful."

After listening to more than an hour of arguments by attorneys, Vanderburgh Superior Court Judge Wayne Trockman sentenced Perry to a total of six years in the Indiana Department of Correction.

Perry wept throughout the sentencing, as did many of the more than 20 people who crowded into the courtroom to support her.

Her pastor, the Rev. Jeffrey Stratton of American Baptist East Church, has been active in her recovery. During Tuesday's sentencing, he told Trockman he did not believe Perry should serve jail time.

"When my own brother was in the midst of his addiction, I testified in court that he needed prison time," Stratton said. "But I see this case as a success story. A tremendous amount of resources have been brought to bear, and that shouldn't be held against her."

Perry attended an inpatient treatment program and has continued recovery efforts through other local programs since her arrest.

And a story from July 22nd in the Evansville C&P reported:

An Evansville attorney recently convicted and sentenced to jail on methamphetamine charges has been suspended from practice by the Indiana Supreme Court.

The ruling, issued this month by the Indiana Supreme Court Disciplinary Commission, suspends Teresa Perry from the practice of law in Indiana “until further order of the Court,” due to Perry being found guilty of a felony.

Today the Supreme Court has posted a further order, filed Sept. 4. It is a 3-2 ruling, with Shepard and Dickson dissenting. The majority opinion reads in part:

Regardless of the date on which Respondent is eligible to seek reinstatement, her petition would be granted only if she met the most stringent requirements of proof that her rehabilitation is complete and she can safely reenter the legal profession. With this in mind, and in light of the Court's desire to foster agreed resolutions of lawyer disciplinary cases, the Court now APPROVES and ORDERS the agreed discipline.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than two years or until her criminal sentence has been completely served, whichever is greater, without automatic reinstatement, beginning July 29, 2008 (the effective date of her interim suspension). Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of that period, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). [emphasis in the original]

The dissent, written by J. Dickson, with C.J. Shepard concurring:

I would reject the Conditional Agreement because it leaves open the possibility that the Respondent may eventually resume the practice of law despite being convicted of multiple felonies involving both dealing in and possession of methamphetamine. Permitting such a convicted felon to practice law is unacceptable, in my opinion, because it places at risk the citizens who may seek future legal representation from the Respondent, and it undermines general public confidence, trust, and respect for the Indiana legal system as consisting of persons morally sound, fit, and suitable to be safely entrusted with the personal interests of others.

Posted by Marcia Oddi on September 9, 2009 03:58 PM
Posted to Ind. Sup.Ct. Decisions

Law - "Reality's knocking" The recession is forcing law schools to bow to reality"

This story, dated Sept. 7th, reported by Karen Sloan of The National Law Journal, begins:

Washington and Lee University School of Law has thrown out its traditional third-year curriculum and replaced it with a series of legal simulations meant to prepare students to practice law in the real world.

First-year students at Duke Law School and the new University of California, Irvine School of Law will take a yearlong course examining different legal careers and the ethical and professional issues associated with those career tracks.

A new LL.M. program at the University of California at Los Angeles School of Law is designed to give recent law school graduates the skills their predecessors would have developed as starting law firm associates.

The movement to incorporate practical skills into legal education isn't new, but legal educators and researchers report that the floundering economy is increasing incentives for law schools to revamp their curricula to prepare students for the realities of the legal profession.

"A lot of the changes are in response to the marketplace," said David Van Zandt, dean of Northwestern University School of Law. "Students are concerned about getting jobs, and everybody wants to be relevant."

See also this just-posted entry in the WSJ Law Blog, headed "The Boldest Move (To Date) in Legal Curriculum Reform?."

Posted by Marcia Oddi on September 9, 2009 01:28 PM
Posted to General Law Related

Courts - Citizens United v. Federal Election Commission argued this morning [Updated]

Lyle Denniston of SCOTUSBlog begins his analysis of today's oral argument in Citizens United v. Federal Election Commission:

If supporters of federal curbs on political campaign spending by corporations were counting on Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., to hesitate to strike down such restrictions, they could take no comfort from the Supreme Court’s 93-minute hearing Wednesday on that historic question. Despite the best efforts of four other Justices to argue for ruling only very narrowly, the strongest impression was that they had not convinced the two members of the Court thought to be still open to that approach. At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations.

Here is the early AP coverage.

[Updated] SCOTUSBlog now has links to the audio and transcript.

Posted by Marcia Oddi on September 9, 2009 01:05 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP) [Updated with another opinion]

For publication opinions today (5):

In A.J.L. v. D.A.L., J.K.C., and T.C. , a 16-page opinion, Judge Najam concludes:

The trial court did not err when it concluded that Aunt and Uncle are the de facto custodians of the Children. Clear and convincing evidence shows that Mother left the Children in Aunt and Uncle's care for significant periods of time starting in January 2006. The Children lived with Aunt and Uncle fifty percent of the time from January 2006 to February 2007 and sixty to seventy percent of the time from February 2007 to February 2008. During those periods, Aunt and Uncle provided for the care and needs of the Children without financial contribution from Mother. Mother's argument that Aunt and Uncle were merely babysitters is a request that we reweigh the evidence, which we will not do.

And the trial court did not abuse its discretion when it awarded custody of the Children to Aunt and Uncle as de facto custodians. Again, clear and convincing evidence shows that Mother voluntarily relinquished care and control of the Children to Aunt and Uncle for significant periods of time starting in January 2006. Mother's argument challenging the award again amounts to a request that we reweigh the evidence. We cannot. Clear and convincing evidence shows that Mother voluntarily relinquished the Children to Aunt and Uncle and that the affections between the Children and Aunt and Uncle were completely interwoven. Such evidence is sufficient to rebut the presumption that custody should be placed with Aunt and Uncle, as de facto custodians, over Mother, the natural parent.

Finally, Mother has not shown that the trial court applied an incorrect burden for Aunt and Uncle to rebut the presumption that Mother, as the natural parent, should have custody of the Children. While the Decree is silent as to the burden of proof on that issue, as stated above, Mother's abandonment of the Children to Aunt and Uncle was proved by clear and convincing evidence. And the probative evidence and reasonable inferences supporting the judgment show that a reasonable trier of fact could have concluded that the affections of the Children and Aunt and Uncle were completely interwoven. Thus, Aunt and Uncle rebutted the parental presumption by clear and convincing evidence. The trial court did not abuse its discretion when it awarded custody of the Children to Aunt and Uncle. Affirmed.

In Terry Rowe, Jr. v. State of Indiana , a 10 page, 2-1 opinion, Judge Crone writes:

Terry Rowe appeals the denial of his petition for post-conviction relief for ineffective assistance of counsel. We affirm. * * *

May, J. concurs.
BROWN, J., dissents with separate opinion. [which begins] I respectfully dissent because I conclude that Rowe received ineffective assistance because Rowe's trial counsel did not adequately investigate Rowe's case, told Rowe that he would win, and Rowe rejected the plea agreement based upon his trial counsel's statement that he would win.

In Morgan K. Govan v. State of Indiana , an 11-page opinion, Judge Vaidik writes:

Morgan K. Govan appeals his convictions for Class C felony battery and Class A misdemeanor battery for branding his long-term girlfriend with a hot knife and hitting her with a cord. Specifically, he contends that the evidence is insufficient to support his convictions because the charges arose out of sadomasochistic sexual practices to which his girlfriend consented. In Indiana, consent is not a defense to battery in most circumstances. Because the activities in this case involved a deadly weapon, consent is not available as a defense. Furthermore, because Govan admitted to beating his girlfriend with a belt-like object because she had been with another man and lied about it, and his girlfriend locked herself inside a closet, where she tried to kill herself; escaped to her place of employment, where she locked herself inside the building and called 911; told the 911 dispatcher that she wanted to press charges against Govan; told the police that Govan had branded her with a hot knife and struck her with an extension cord (but, notably, did not mention consent); and testified at trial that she did not want to be there and she still had feelings for Govan, the jury was free to conclude that the victim did not consent to battery. We therefore affirm Govan’s convictions for battery.

Joshua Bean v. State of Indiana - "Joshua Bean appeals his convictions for Murder, a felony, and Abuse of a Corpse, a Class D felony, following a jury trial. Bean presents the following issues for review: 1. Whether the trial court abused its discretion when it admitted Bean‟s custodial statement to police. 2. Whether the trial court abused its discretion when it admitted certain evidence under Indiana Evidence Rule 404(b). We affirm."

In Tabitha Lynn Slone v. State of Indiana , a 10-page opinion, Judge Riley writes:

Appellant-Defendant, Tabitha Lynn Slone (Slone), appeals her conviction for purchasing drugs containing more than three grams of ephedrine, pseudoephedrine, or both within one week, a Class C misdemeanor, Ind. Code § 35-48-4-14.7(d), (i), and the finding that she violated her probation. We reverse.

Slone raises three issues on appeal, which we restate as the following two:
(1) Whether Indiana Code section 35-48-4-14.7 is unconstitutional;
(2) Whether the State presented evidence sufficient to prove beyond a reasonable doubt that she knowingly or intentionally purchased more than three grams of ephedrine, pseudoephedrine, or both within one week. * * *

Slone argues that Indiana Code section 35-48-4-14.7 which prohibits, among other things, the purchase of drugs containing more than three grams of ephedrine, pseudoephedrine, or both within one week is unconstitutionally vague. Additionally, Slone contends that the statute authorizes or encourages arbitrary or discriminatory enforcement. The State responds by contending that Slone waived this issue by failing to file a motion to dismiss advancing the contentions of unconstitutionality, or by failing to raise the issues at all before the trial court.

Addressing the State’s contention of waiver we note that, generally the failure to file a proper motion to dismiss raising a constitutional challenge to a criminal statute waives the issue on appeal. Donaldson v. State, 904 N.E.2d 294, 298 (Ind. Ct. App. 2009). Nevertheless, Indiana appellate courts have considered the constitutionality of statutes even where the defendant failed to file a motion to dismiss. Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008). Indeed, our supreme court has even stated that “the constitutionality of a statute may be raised at any stage of the proceeding including raising the issue sua sponte by this Court.” Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992).

However, Slone asks us to base our decision upon her qualified allegation that “[c]onfusion over compliance with I.C. 35-48-4-14.7(d) appears particularly likely because the record suggests the exact total amounts of ephedrine or pseudoephedrine may not be listed in grams on the box of cold medication.” (emphasis added). Further, Slone states in another section of her brief that “the record in this case is silent as to the nature of the labels on those medications.” So, short of violating our prohibition of considering items outside of the record, our decision would be based upon speculation as to what information is contained on packaging of drugs that contain ephedrine and pseudoephedrine. The waiver rule is founded on important policy considerations, including “the preservation of judicial resources, opportunity for full development of the record, utilization of trial court fact-finding expertise, and assurance of a claim being tested by the adversary process.” Hoose v. Doody, 886 N.E.2d 83, 93 (Ind. Ct. App. 2008), trans. denied. Therefore, we conclude that Slone has waived her constitutional challenge, and we are unable to consider her challenge notwithstanding that waiver. * * *

Based on the foregoing, we conclude that Slone waived her opportunity to challenge the constitutionality of Indiana Code section 35-48-4-14.7(d), and we cannot review her claim notwithstanding that waiver because the record was not properly developed before the trial court. Further, we conclude that Slone stipulated to the fact that she had purchased drugs containing more than three grams of pseudoephedrine within one week. However, the State failed to present evidence sufficient to prove beyond a reasonable doubt that she knowingly violated Indiana Code section 35-48-4-14.7(d). Reversed.

NFP civil opinions today (0):

NFP criminal opinions today (8):

John B. Myles v. State of Indiana (NFP)

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

Zachary L. Hutchinson v. State of Indiana (NFP)

Andrew Martin v. State of Indiana (NFP)

Tony Johnson v. State of Indiana (NFP)

Johnny C. Horton v. State of Indiana (NFP)

Michael Cox v. State of Indiana (NFP)

Stanley Bryant v. State of Indiana (NFP)

[Updated] The following opinion was posted later:

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

Posted by Marcia Oddi on September 9, 2009 12:32 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two Indiana decisions today from 7th Circuit; plus an interesting environmental ruling

U.S. v. Perez (ND Ind., Judge Simon) is a 16-page opinion by Judge Kendall (District Judge for the Northern District of Illinois, is sitting by designation):

Ramon Perez was indicted for knowingly possessing with intent to distribute in excess of 500 grams of cocaine based on a traffic stop during which the officers recovered a single brick of cocaine weighing 993.9 grams. Perez pleaded guilty to the charged offense and the district court judge sentenced him to 135 months’ incarceration based on the cocaine found during the traffic stop and other drugs located at his home that were recovered later that day. Perez claims that the district court judge erred when he increased his sentence for the drugs retrieved from the residence. Because we find that the district court judge correctly included the other drugs as relevant conduct, we affirm.

In U.S. v. Clint Woods, et al (ND Ind. CJ Miller), an 18-page opinion, Judge Williams writes:

This is a consolidated appeal of the denial of three defendants’ motions to modify their sentences pursuant to 18 U.S.C. § 3582(c)(2). All three defendants were indicted, along with others, on multiple charges in a drug trafficking ring and entered into plea agreements that included appellate waivers. The government maintains we should dismiss the appeals because the waiver bars our review. Because we conclude that § 3582(c)(2) motions do not fall within the waiver’s scope, we hold that the waivers do not bar the defendants’ appeals of the denials of their § 3582(c)(2) motions. However, because we conclude that the district court did not err in denying the motions, we affirm.

In State of Michigan v. U.S. EPA and Forest Co. Potawatomi Community (Adm. Review), a 14-page opinion, Judge Wood writes:

The cultural and religious traditions of the Forest County Potawatomi Community (“the Community”) often require the use of pure natural resources derived from a clean environment. Many years ago, the Community became alarmed by increasing pollution levels in its lakes, wetlands, and forests. To remedy this problem, it submitted a request to the Environmental Protection Agency (“EPA”) to redesignate certain tribal lands from Class II to Class I status under the Prevention of Significant Deterioration (“PSD”) program of the Clean Air Act (“the Act”). This would have the effect of imposing stricter air quality controls on emitting sources in and around the Community’s redesignated lands.

After nearly fifteen years of administrative proceedings and dispute resolution efforts between the Community and neighboring Wisconsin (which were successful) and Michigan (which were not), the EPA promulgated a final ruling redesignating the Community’s lands to Class I status. It also issued two companion announcements concluding dispute resolution proceedings with Wisconsin and Michigan. Michigan seeks review of these three final administrative rulings. It asserts that the EPA pursued the redesignation in an improper manner and, as a result, needlessly complicated Michigan’s air quality control programs. Because Michigan lacks standing to pursue these claims, we dismiss its petition for review. * * *

The Community has waited over fifteen years for finality on the redesignation of its lands. Michigan’s challenge to the EPA’s redesignation actions raises some important issues about the PSD program’s regulatory structure, but Michigan has failed to allege a cognizable injury in fact and thus lacks standing to pursue this case. As a result, the Community need not wait any longer. We DISMISS the petition for review.

Posted by Marcia Oddi on September 9, 2009 12:18 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Man convicted in 1982 slaying to be retried"

"The wheels of justice grind exceedingly slow ..."

Dave Stafford reports today in the Anderson Herald Bulletin:

ANDERSON — An Anderson man who has spent nearly 26 years on death row will be retried after court sent the long-appealed case back to Madison County.

Mark Allen Wisehart, 45, was convicted of murder and sentenced to death in 1983 in the killing of Marjorie Johnson in her Anderson home.

The 7th U.S. Circuit Court of Appeals in Chicago ruled in 2005 that a jury might have been prejudiced by comments that Wisehart had been offered a polygraph test. The Indiana Attorney General’s office had appealed the case to the U.S. Supreme Court, but justices refused to reconsider reinstating Wisehart’s conviction and sentence.

In May, the case was remanded for a new trial in Madison County, and subsequently was assigned to Superior Court 1 Judge Dennis Carroll.

No court date has been set. Jeff Lockwood and Eric Koselke last month were appointed to defend Wisehart. Koselke filed a sealed request for the court to approve funds to hire an investigator, but the court has not acted on the motion.

Attorneys representing Wisehart and prosecutors could not be reached for comment Tuesday.

Wisehart was convicted in Madison Superior Court 3 before Judge Thomas Newman, who still presides.

Along with the capital conviction for murder, Wisehart also was convicted of robbery, burglary and theft. He was accused of breaking into Johnson’s home, beating and stabbing her to death, and taking $14.

Wisehart was living at the Christian Center in Anderson at the time of Johnson’s killing. He is the longest-serving of the 17 prisoners on Indiana’s death row in Michigan City.

Looking back in the ILB files, I found two stories from early 2006.

This entry from March 28, 2006, quotes from 7th Circuit's March 23, 2005 opinion in the case of Wisehart v. Davis. Judge Posner writes:

Back in 1994 it would have been relatively easy to call the juror as a witness and ask her to explain her reaction to learning about the polygraph test, though she might have forgotten because the trial had been conducted in 1983. It will be all the more difficult today to reconstruct an incident now more than twenty years in the past. But it was the state’s burden, given the juror’s affidavit, to present evidence that the jury’s deliberations had not been poisoned by the reference to Wisehart’s having been given a polygraph test.

The entry also quotes from a March 28, 2006 AP story:

WASHINGTON -- The U.S. Supreme Court refused yesterday to consider reinstating the conviction and death sentence of a man who spent more than 20 years on Indiana's death row.

The 7th Circuit U.S. Court of Appeals in Chicago last year overturned the 1983 murder conviction of Mark Allen Wisehart of Anderson. It ruled that a trial judge should have taken steps to determine whether one juror's knowledge of a polygraph test had tainted the verdict.

The state attorney general's office had appealed to the U.S. Supreme Court, but the justices declined without comment to review the case.

This entry from March 29, 2006 quotes from a story by Charles Wilson of the AP. Here are some snippits -- the story is exploring "what may happen now?"

A decade-old affidavit that was key to overturning an Indiana death row inmate's murder conviction could be used to reinstate that sentence if prosecutors can prove the juror who signed it was misled. * * *

Madison County Prosecutor Rodney Cummings said Wednesday he would recommend the state attorney general's office pursue the hearing to determine if jurors were biased. * * *

During a postconviction relief hearing in 1994, attorneys presented an affidavit signed by one of the jurors saying that when she reported for jury duty she was told court would not be held that day because Wisehart was scheduled to take a polygraph test. The juror was not called to testify at the hearing.

Wisehart then appealed, but the Indiana Supreme Court said he had not shown any evidence that a single juror's knowledge of the polygraph test had swayed the entire jury.

However, the 7th U.S. Circuit Court of Appeals last year set aside Wisehart's conviction, saying the judge should have done more to investigate possible jury bias. The U.S. Supreme Court on Monday declined to hear the case. * * *

The Indiana Attorney General's office has 30 days in which to decide a course of action, said spokeswoman Staci Schneider. She said the office would consult Cummings before making a decision.

A fact-finding hearing would cause much less delay than trying to mount a new murder trial 20 years after the crime, Cummings said. If the judge decided the affidavit was invalid, Wisehart's attorneys likely would file another appeal and the case would again go before the state and federal courts.

Posted by Marcia Oddi on September 9, 2009 11:23 AM
Posted to Ind. (7th Cir.) Decisions | Ind. Sup.Ct. Decisions

Courts - "San Francisco Superior Court Lays Down Law on Jury Internet Use"

Kate Moser reports today in The Recorder:

A new rule proposed by San Francisco Superior Court would remind potential jurors not to blog, Tweet or conduct Internet research about cases.

A need for the rule change, which is open for public comment starting today, became clear to the court during a jury selection episode on a weeks-long criminal trial in late June, when an entire panel of 600 jurors had to be excused.

"The court continues to make all efforts possible to recognize the value of jurors' time and to not needlessly use up or expend jury panels," Presiding Judge James McBride said.

During voir dire on that case in late June, one potential juror's responses made it sound as though he knew quite a bit about the case, prompting Judge Donald Mitchell and the lawyers to talk with him in chambers, said Patricia Kilkenny, deputy jury commissioner for the court. The man said he had done Internet research, and when the judge questioned him about it, he replied that he hadn't been ordered not to do so.

When the rest of the potential jurors were questioned, several raised their hands to acknowledge they had also done some Internet investigation on the case, Kilkenny said. Among them, one hadn't remembered being told not to do outside research, while another didn't understand that the admonishment included research on the Internet.

In researching the problem, Mitchell found that though the jurors had been verbally admonished, they hadn't gotten a cover sheet with a written admonishment attached to their questionnaires, Kilkenny said. Currently, juror questionnaires typically include cover sheets, but their content is up to the judge and attorneys. Cover sheets vary and don't always include the written admonishment about discussing or researching the case. * * *

A draft of the civil questionnaire cover sheet the court provided to The Recorder reads: "You may not do research about any issues involved in the case. You may not blog, Tweet, or use the Internet to obtain or share information."

For background, see this August 15th ILB entry, the last of six headed "Managing the electronic communication revolution in the Indiana courtroom."

Posted by Marcia Oddi on September 9, 2009 11:01 AM
Posted to Courts in general

Law - "Major Banks Still Grappling With Foreclosures"

Chris Arnold of NPR has this nearly 9 minute report this morning - listen if you can, there is more than the online story.

Posted by Marcia Oddi on September 9, 2009 10:13 AM
Posted to General Law Related

Tuesday, September 08, 2009

Ind. Decisions - Transfer list for week ending September 4, 2009

Here is the Clerk's transfer list for the week ending September 4, 2009. It is three pages long.

One transfer was granted last week, Everett Cash Mutual Ins. Co. v. Rick Taylor, et al, a 2-1 opinion from April 8th; see ILB summary here - 2nd case.

________

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 September 8, 2009 03:10 PM
Posted to Indiana Transfer Lists

Ind. Decisions - More on: Supreme Court's call for amicus briefs in sentencing case answered

Re the ILB entry from earlier today, a reader writes to ask:

In your posting regarding the call for Amicus briefs on the issue of using scored instruments for sentencing it showed that the Indiana Judicial Center requested leave to file an Amicus brief. Does anyone wonder or question whether an agency of the Supreme Court should appear as Amicus in a Supreme Court case?

And how will they come up with a position? Any thoughts?

Posted by Marcia Oddi on September 8, 2009 03:01 PM
Posted to Ind. Sup.Ct. Decisions

Courts - Three federal court decisions in the news today

"State Discriminated Against Mentally Ill, Judge Rules" is the headline to this NY Times story by James Barron. Some quotes:

New York State had discriminated against thousands of mentally ill people by leaving them in privately run adult homes, which are usually larger than the disgraced psychiatric hospitals they were intended to replace, a federal judge ruled in a decision released on Tuesday morning.

udge Nicholas G. Garaufis ruled that the state was violating the Americans with Disabilities Act by housing more than 4,300 mentally ill people in sprawling and often poorly run homes. He said the residents are essentially warehoused with little hope of mingling with others in the wider community.

Judge Garaufis wrote in a 210-page decision that the state had “denied thousands of individuals with mental illness in New York City the opportunity to receive services in the most integrated setting appropriate to their needs.” He also said the state had failed to show that reforms proposed by the nonprofit group that filed the case “would constitute a ‘fundamental alteration’ of the state’s mental health service system.” * * *

The adult home system took shape in the 1960s and 1970s, when New York shut down large state-run psychiatric hospitals as part of what became known as deinstitutionalization. State officials turned to profit-making adult homes because little had been done to prepare for housing the patients once they had been discharged from the psychiatric wards. Federal disability money was to pay for the homes and the meals and activities they would provide. The homes were responsible for bringing in outside psychiatrists and doctors.

Disability Advocates filed the lawsuit in 2003 after a series in The New York Times described conditions in adult homes based on a review of more than 5,000 pages of annual state inspection reports and 200 interviews with workers, residents and family members. The Times’s investigation found a number of systemic problems, including untrained workers and gaps in supervision.

"Release of 46,000 inmates challenged" is the heading of this entry by Lyle Denniston of SCOTUSBlog. It begins:

California officials have asked the Supreme Court to put on hold a federal court’s order that will require the release of some 46,000 inmates from state prisons over two years, to relieve “unprecedented overcrowding.” In a stay application (09A234) filed Friday, Gov. Arnold Schwarzenegger and other state officials argued that the order will “divert state legislative and executive attention from state-initiated prison reform at a time when it is needed the most.” The application was filed with Justice Anthony M. Kennedy, Circuit Justice for the Ninth Circuit. He can decide the issue on his own, or share it with his colleagues.

“Every day that the [release] order hangs over California, it places enormous strains on the state’s existing resources and creates intolerable anxiety for both officials and residents of the nation’s most populous State,” the application said.

The case involves the Aug. 9 ruling of a three-judge U.S. District Court, finding serious overcrowding in the state’s prison system that, it said, threatens the health and safety of men and women who work in those facilities as well as the inmates housed in them.

"Appeals Court Rejects Challenge to Lobbying Disclosures" reports Mike Scarcella of The Blog of Legal Times. It begins:

A federal appeals court today in Washington, ruling unanimously in favor of greater transparency in government, upheld the constitutionality of a reform law that requires associations to publicly disclose certain members who are active participants in lobbying.

The National Association of Manufacturers, a regular lobbyist on issues that include global warming and nuclear power, challenged the constitutionality of the Honest Leadership and Open Government Act of 2007 in a suit filed last year in the U.S. District Court for the District of Columbia.

Among other things, lawyers for NAM argued that membership disclosure requirements would discourage some members from participating in public policy initiatives. The suit was dismissed. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today upheld the dismissal.

The decision is Nat'l. As'n. Mfg. v. Taylor. Judge Garland's opinion begins:

More than fifty years ago, the Supreme Court held that the public disclosure of “who is being hired, who is putting up the money, and how much” they are spending to influence legislation is “a vital national interest.” United States v. Harriss, 347 U.S. 612, 625-26 (1954). Today, we consider a constitutional challenge to Congress’ latest effort to ensure greater transparency, the Honest Leadership and Open Government Act of 2007. Because nothing has transpired in the last half century to suggest that the national interest in public disclosure of lobbying information is any less vital than it was when the Supreme Court first considered the issue, we reject that challenge.

Posted by Marcia Oddi on September 8, 2009 01:43 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

In Jonta A. Powell v. State of Indiana , a 21-page opinion, Judge Brown concludes:

Based upon our review of the record, we conclude that evidence of probative value existed from which the trial court could have determined that Powell had constructive possession of the marijuana and methamphetamine discovered in the vehicle. See, e.g., Von Hauger v. State, 254 Ind. 297, 298, 258 N.E.2d 847, 848 (1970) (holding that evidence was sufficient to convict defendant for possession of marijuana where a police officer upon approaching the car had observed the defendant placing something on the floor under the seat and the officer found the marijuana in that location even though there were two persons in the vehicle and the State never established that the defendant was the owner of the automobile); Holmes v. State, 785 N.E.2d 658, 662 (Ind. Ct. App. 2003) (holding that the State presented sufficient evidence to convict the defendant based in part upon defendant s close proximity to marijuana found under the driver s seat of a vehicle). Accordingly, we conclude that the State presented evidence sufficient to support Powell's convictions for possession of marijuana and a controlled substance.

For the foregoing reasons, we affirm Powell's convictions for possession of marijuana as a class D felony and possession of a controlled substance as class D felony.

In In Re: The Estate of Harry L. Rickert, Carole Baker, Personal Representative v. Keta Taylor , a 16-page, 2-1 opinion, Judge May writes:

Carole Baker, as personal representative of the Estate of Harry Rickert, appeals the trial court’s judgment awarding ownership of certain joint accounts to Keta Taylor. She argues the trial court incorrectly presumed Taylor was entitled to funds in joint accounts that had been in Taylor and Rickert’s names. We reverse and remand. * * *

The trial court erred in concluding Taylor was presumptively entitled to survivorship rights in the challenged accounts she created and in requiring the Estate to rebut that presumption by clear and convincing evidence. Taylor’s proffered testimony was properly excluded. We accordingly reverse and remand for further proceedings consistent with this opinion. Reversed and remanded.

BAKER, C.J., concurs.
BARNES, J., dissenting with separate opinion. I respectfully dissent. At the outset, however, I wish to emphasize that I am highly sympathetic to the result reached by the majority. If we were writing on a blank slate I would agree with that result. We are not writing on a blank slate. As an intermediate appellate court, we must follow precedent set by our supreme court, even if we do not agree with it. See Horn v. Hendrickson, 824 N.E.2d 690, 694-95 (Ind. Ct. App. 2005). That said, I simply am convinced that our supreme court’s Banko decision is binding precedent we must follow. * * *

I am keenly aware that an unscrupulous caregiver, armed with a power of attorney, could finagle joint tenancy accounts in a way that results in a gross injustice. Under Banko’s interpretation of the NPTA, however, courts essentially must presume that a joint tenancy account was scrupulously created, no matter who created it and regardless of whether one person to the account was even aware of its creation. I would urge our supreme court to reconsider Banko’s breadth, or alternatively urge the General Assembly to enact legislation that would exempt situations such as the one in this case from the NPTA’s application. Unless and until that happens, however, we must apply the NPTA as Banko interpreted it. Under that interpretation, I believe we have no choice but to affirm the judgment of the trial court.

In Adoption of A.S., D.S., C.S., and J.S.; M.S. v. L.S. and V.S. , a 21-page opinion, Judge Vaidik writes:

M.L.S. appeals the probate court’s ruling denying her petition to adopt minor children A.S., D.S., C.S., and J.S. (collectively, “the Children”) and granting the petition to adopt the Children filed by cross-petitioners V.S. and L.S. The probate court judge who heard evidence and argument in the adoption case passed away before issuing a final ruling. Although the parties in such a situation are generally entitled to a new trial, M.L.S. waived her objection to the replacement judge’s authority to issue a final ruling in this case. After the biological parents and the Marion County Department of Child Services (“MCDCS”) had executed consents allowing M.L.S. to adopt the Children, one of M.L.S.’s adopted children who lived in the home was alleged to be a juvenile delinquent for committing three counts of child molesting. MCDCS removed the Children and placed them in the home of V.S. and L.S. MCDCS and the Children’s biological parents subsequently executed consents allowing V.S. and L.S. to adopt the Children. We conclude that there is no basis under the statutes governing adoption or public policy to prohibit the execution of subsequent consents. Finally, we conclude that the evidence in this case supports the adoption decree in favor of V.S. and L.S. We affirm.

NFP civil opinions today (5):

In Eric D. Smith v. John Roberts, Chief Justice of the United States Supreme Court (NFP), a 4-page opinion, Judge May writes:

On March 10, 2009, Smith filed a complaint against John Roberts in his official capacity as Chief Justice of the United States Supreme Court. His complaint alleges there is a Star of David carved into the Supreme Court building and “alleges that Roberts has acted negligently in his officials [sic] duties by allowing and continuely [sic] establishing, advocating, and advancing the Jewish religion in violation of the First Amendment to the United States Constitution of America [sic].” The complaint states Smith is bringing his claim under the Federal Tort Claims Act and the Indiana Tort Claims Act. Smith asked the court to “declare that the displayal [sic] of the six-pointed Star of David violates the Establishment Clause of the First Amendment to the United States Constitution of America [sic], and that Roberts was negligent in his duties” and to “order the removal of the six-pointed Star of David from the United States Supreme Court.” * * *

In his brief, Smith concedes he has not stated a claim on which relief can be granted under the Indiana Tort Claims Act. Smith further concedes: [I do agree with the trial court that Roberts could not be liable under the Federal Tort Claims Act, because the FTCA prohibits suing individuals.]

It is not clear what aspect of his claim Smith believes still stands after these concessions. Assuming arguendo he has stated an otherwise valid claim alleging a violation of the Establishment Clause, he cites no authority that Indiana courts can grant him relief against the Supreme Court of the United States. He argues that state courts have jurisdiction to hear cases involving federal questions, which certainly is true. See, e.g., Green v. Hendrickson Publishers, Inc., 770 N.E.2d 784, 790 (Ind. 2002). However, that does not mean Indiana courts can grant him effective relief against the Supreme Court of the United States, which is the ultimate authority on federal questions. Therefore, the trial court did not abuse its discretion by denying Smith’s motion to correct error. Affirmed.

Eric D. Smith v. Jeffrey Wrigley, Edwin G. Buss, James Wynn (NFP) - "Eric D. Smith filed a complaint under 42 U.S.C. § 1983 against Jeffrey Wrigley, the superintendent of New Castle Correctional Facility; Edwin G. Buss, the commissioner of the Department of Correction; and James Wynn, the director of classification for the Department of Correction. The trial court determined his complaint was frivolous and dismissed it. We affirm."

John C. Cole, Jr. v. Bruce Lemmon and Edwin Buss (NFP) - "John Cole Jr. brought a small claims action against Bruce Lemmon and Edwin Buss after a correctional officer dropped Cole’s television and broke it while moving Cole and his property to another facility. The trial court dismissed his complaint as frivolous. We affirm."

Morgan Manufacturing v. The Dallas Group of America, Inc. (NFP) - "Because there is no evidence regarding essential elements in the alleged oral agreement between the parties, and because the agreement is, in part, illusory, we cannot
say that the trial court abused its discretion in determining, based solely upon evidence introduced by Morgan Manufacturing, that no oral contract was formed. * * *

"Morgan Manufacturing asks us to engage in supposition, not to evaluate evidence and reasonable inferences. There is no unjust enrichment here; thus, there is no quasi contract. * * *

"Morgan Manufacturing also asserts that the Dallas Group took what it learned from the relationship and left Morgan Manufacturing in the lurch. As we discussed above, there is no evidence or inference therefrom to show that the Dallas Group violated any duty owed to Morgan Manufacturing or that the Dallas Group used Morgan Manufacturing to gain knowledge for its advantage. As the trial court undoubtedly recognized, there must be evidence from which a reasonable inference of a breach of fiduciary duty can be drawn. Mere supposition is not enough."

Schmidt Automotive, Inc. v. Cozetta Rucker (NFP) - "The trial court neither based its award upon the breach of a contract nor upon the breach of a warranty. Rather, the trial court’s damage award was based upon Schmidt’s failure to properly diagnose and repair Rucker’s vehicle. As the evidence discloses, Rucker took her vehicle to Schmidt with concerns that the engine light was on and the vehicle was jerking and missing. Schmidt replaced the engine, and Rucker continued to experience the same problems with the vehicle. Schmidt made further minor repairs, and Rucker still returned with the same concerns. Schmidt again made repairs, and Rucker continued to experience the same issues. After three unsuccessful attempts by Schmidt to diagnose and repair Rucker’s vehicle, Rucker took her vehicle to a different repair shop that replaced the fuel injectors, which solved the problem. Thus, the trial court awarded $4,485.87 to Rucker, which is the amount Rucker paid to Schmidt for the remanufactured engine because the evidence shows that the new engine did not solve the problem that Rucker requested Schmidt to diagnose and repair. Moreover, the evidence creates the inference that the engine replacement was not necessary.

"Based upon the foregoing discussion and decision, we conclude that the evidence supports the trial court’s findings and the findings support the judgment."

NFP criminal opinions today (5):

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

Joseph Fields v. State of Indiana (NFP)

Tiquila Taylor v. State of Indiana (NFP)

Morgan B. Dalton v. State of Indiana (NFP)

Bruce J. Gootee v. State of Indiana (NFP)

Posted by Marcia Oddi on September 8, 2009 12:06 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One today from the Supreme Court

In Jim and Jill Kovach v. Caligor Midwest, et al, a 9-page, 5-0 opinion, Judge Boehm writes:

The plaintiffs allege their son was given a fatal overdose of pain medication by a nurse after a surgical procedure. The plaintiffs sued the manufacturers and distributors of the medicine cup used to administer the medication, alleging defects in design of the cup and failure to warn that the cup was not suitable for precision measurement. We affirm summary judgment in favor of these defendants because these claimed defects did not cause the death. The undisputed facts establish that if an overdose caused the death it was due to a quantity of drug essentially double the prescribed amount. None of the claimed defects in the cup would have caused an overdose of that magnitude. * * *

The Kovachs assert four claims against the Cup Defendants, described as strict products liability and negligent products liability under the Indiana Product Liability Act (“PLA”), and breach of implied warranty of merchantability and breach of implied warranty of fitness for a particular purpose under the Uniform Commercial Code (“UCC”). The Court of Appeals concluded that the UCC and PLA provide “alternative remedies,” and it therefore entertained all four of the Kovachs’ claims as separate theories. * * * We find the causation issue in this case dispositive as to all causes of action. We therefore do not resolve the relationship between the PLA and the UCC today, as that issue is directly raised only by amici, and presented obliquely, if at all, by the parties. We also do not address several collateral issues that the parties have raised in this appeal. * * *

The plaintiffs argue that if the medicine cup had been better suited as a precision measuring device or had contained a warning that it was not suitable for precision measurement, Matthew would not have received an overdose. We agree with Chief Judge Baker that the undisputed facts establish that there is no such causal connection. * * *

Here, the Kovachs claim that the medicine cup should have borne a warning that it was not designed for precision measurement. If we apply the read-and-heed presumption, then we must assume the nurse would have read such a warning and chosen a precision applicator to administrate the codeine. But as explained above, Matthew’s overdose was not the result of imprecise measurement. If the overdose was the cause of death, it was due to mistaken dispensation of a full cup, a 30-mL double dosage, by a nurse who knew that a half cup, 15 mL, was the proper dosage. Matthew’s death was not factually caused by the danger that a warning against use of the cup for precision measurement would have addressed, and the accident would not have been avoided if any such warning had been given.

Conclusion: For the foregoing reasons, the Cup Defendants have established that Matthew’s death was not caused by the alleged defects in their product. The judgment of the trial court granting summary judgment in favor of the Cup Defendants is affirmed.

Posted by Marcia Oddi on September 8, 2009 11:48 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court's call for amicus briefs in sentencing case answered

Anthony Malenchik v. State -- 79A02-0902-CR-133. This is a NFP opinion issued June 5th. The Supreme Court granted transfer August 10th.

Accompanying the grant was this Order Directing Addional Briefing and Inviting Amicus Participation. Access it here. From the Order:

The Court is interested in Appellant's argument that the trial court abused its discretion in relying on "scoring models" (in this case, the Level of Service Inventory-Revised ("LSlR") and Substance Abuse Subtle Screening Inventory ("SASSI") in determining the sentence. Appellant relies primarily on Rhodes v. State, 896 N.E.2d 1193, 1195 (Ind. Ct. App. 2008), trans. not sought. This issue was not fully developed in the parties' briefs and may be a legal issue of wider interest.

The Court now issues this invitation for participation of amicus curiae to address a trial court's reliance on scoring models in sentencing. Those entities willing to prepare and file a brief as amicus curiae on the issue are requested to file a motion on or before September 4, 2009 seeking leave to appear as amicus curiae. The Court encourages the submission of joint briefs. Briefs submitted by those granted amicus curiae status will be due on or before September 21, 2009. * * *

In addition, the parties shall file supplemental briefs by September 21, 2009 with more fully developed argument on the use of scoring models in sentencing.

So who has indicated an intent to file an amicus brief? According to the Clerk's Docket:

9/03/09 NOTICE OF APPEARANCE BY JANE SEIGEL, JENNIFER BAUER & MICHELLE GOODMAN, ATTY'S FOR AMICUS CURIAE INDIANA JUDICIAL CENTER (2) CERTIFICATE OF SERVICE (2) BY MAIL AS 09/03/09

9/03/09 MOTION FOR LEAVE TO APPEAR AS AMICUS CURIAE *INDIANA JUDICIAL CENTER* (6) CERTIFICATE OF SERVICE (6) BY MAIL 9/3/09 AS 9/03/09

9/04/09 APPELLANT'S PETITION OF THE INDIANA PROSECUTING ATTORNEYS COUNCIL TO APPEAR AS AMICUS CURIAE (6) CERTIFICATE OF SERVICE BY MAIL DATE 08/04/09 JS 09/04/09

9/04/09 NOTICE OF APPEARANCE BY LARRY LANDIS, ATTY. FOR THE AMICUS CURIAE INDIANA PUBLIC DEFENDER COUNCIL (2) CERTIFICATE OF SERVICE (2) BY PERSONAL AS 09/04/09

9/04/09 AMICUS CURIAE *INDIANA PUBLIC DEFENDER COUNCIL* MOTION FOR LEAVE TO APPEAR (6) CERTIFICATE OF SERVICE (6) BY PERSONAL 9/4/09 AS 09/04/09

9/04/09 NOTICE OF APPEARANCE BY BRYAN BABB, FRED BIESECKER, JAMES BELL, CAROL NEMETH, JOEL SCHUMM AND GEOFFREY SLAUGHTER, ATTY'S FOR AMICUS CURIAE INDIANAPOLIS BAR ASSOCIATION, CRIMINAL JUSTICE AND APPELLATE PRATICE SECTION (IBA) (2) CERTIFICATE OF SERVICE (2) BY MAIL 9/4/09 AS 09/04/09

9/04/09 AMICUI CURIAE (IBA) MOTION FOR LEAVE TO FILE BRIEF IN SUPPORT OF PETITION TO TRANSFER (6) CERTIFICATE OF SERVICE (6) BY MAIL 9/4/09 AS 09/04/09

How often does the Court call for amicus briefs? According to IU Law professor Joel Schumm:

I think it's uncommon. I did a quick search and it looks like amicus was invited in In re Stephen, 867 N.E.2d 148 (Ind. 2007); Robinson v. State, 805 N.E.2d 783 (Ind. 2004); Sholes v. Sholes, 760 N.E.2d 156 (Ind. 2001). It looks like the COA invited amicus in Smith v. Ind. Dep't of Corr., 853 N.E.2d 127 (Ind. Ct. App. 2006), vacated on transfer, 883 N.E.2d 802 (Ind. 2008), and amici continued on through transfer.

The ILB hopes to post both the briefs of the parties and the amicus in this case, as soon as possible after the Sept. 21st filing deadline.

Posted by Marcia Oddi on September 8, 2009 10:25 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Certainly we haven't heard the last of: "Apparently there are all sorts of surprises in the special session budget"

The headline to Tim Evans' story today in the Indianapolis Star is "New law lets DCS decide out-of-state placements." More correctly, it would be "Revision of a few words in a subsection ..."

Specifically, during the 2009 Special Session of the Indiana General Assembly, IC 31-40-1-2(f) was amended as follows:

(f) The department is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement does not comply with the conditions stated in IC 31-34-20-1(b) or IC 31-37-19-3(b). is not recommended or approved by the director of the department or the director's designee.

This has been criticized as "an 11th-hour insertion" into the special session budget [via PL 182-2009(ss), SECTION 387], passed June 31st and effective July 1st - there was no opportunity for public input and one doubts that most legislators were aware of the change or its implications.

As I wrote in this August 30th ILB entry:

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 has consistently avoided addressing this problem, claiming that "separation of powers" ties its hands.

From the lengthy Star story today:

A last-minute change to Indiana law enacted during the legislature's special session in June essentially has shifted all future decisions on out-of-state placements to the DCS director.

The change in state law came after DCS lost a Supreme Court decision in April that gave more deference to judges in making placement decisions when there is a dispute about who should pay.

Whether the new approach is good or bad for Hoosier children -- about 150 are sent to out-of-state programs each year -- is a matter of debate.

Opponents say it could lead to costly decisions not always in the best interest of the child, but others believe it's generally a bad idea to move children far away from home. DCS is less likely than the court to ship children out of state.

DCS Director James Payne acknowledged the Supreme Court ruling in April was a factor in seeking the new law. Because the state now is paying for services, he said, "it was anticipated a DCS recommendation would carry extra consideration."

But, Payne emphasized, the change was driven more by what's best for Hoosier children -- keeping them closer to home, their caseworkers and family connections -- and the importance of supporting Indiana businesses during tough economic times.

Payne said looking only at initial costs can be misleading. He explained an out-of-state facility might have a lower daily rate, but the overall cost could still be higher because of travel, the length of stay and the need for additional services when the child returns to Indiana.

Economic considerations, he acknowledged, also must be factored into decisions.

"Why would we be sending Indiana tax dollars to other states if we have the appropriate services here?" Payne said, adding that the array of programs available in Indiana is adequate.

Technically, judges can still over-rule DCS and send a youth to another state for treatment, but without the agency's approval, the child's home county must bear the cost. And since the $600 million cost of child-welfare services was shifted from counties to the state this year, most counties no longer have budgets to pay those costs. * * *

[St. Joseph County Probate Judge Peter Nemeth] also has a gripe with how the change was made. He said such a critical issue should not be decided in a late-night meeting of a legislative committee without debate or public input -- and it might have been based on bad information.

"One of the driving factors for the change, as I understand it, was that for some reason, legislators had the idea judges were driving the increase in expenditures for children's services, which I don't think is true," he said.

Nemeth said he believes most judges are being fiscally responsible while also watching out for the best interests of children.

That's what he was doing, he believes, when he recently decided to send a teen to a specialized drug-treatment facility in Iowa.

DCS disagreed, but the Indiana Court of Appeals last week agreed with Nemeth, who had found the DCS recommendation was more costly and "contrary to the welfare and best interest of the child."

That case and the Madison County one that went before the Supreme Court were initiated before the new law took effect July 1.

For more, including summaries of all the recent court decisions, see this list of earlier ILB entries, most of them headed "Apparently there are all sorts of surprises in the special session budget."

Posted by Marcia Oddi on September 8, 2009 09:52 AM
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Decisions | Indiana Government | Indiana Law

Environment - A number of recent Indiana environmental stories [Updated]

Several from Lake County:

• "Steelmaker plans landfill for toxic mill wastes: ArcelorMittal samples show cadmium levels higher than otherwise allowed." - from the August 30th Gary Post-Tribune

• "Meeting set on closure of waste acid lagoons" - from the Sept. 1st Gary Post-Tribune

• "Waste lagoon ruling close: Public review continues on U.S. Steel plan; state to decide by end of year." - from the Sept. 3rd Gary Post-Tribune

• "Utility denies damaging park with Bailly water" - - from the Sept. 6th Gary Post-Tribune, a lengthy story by Gitte Laasby that begins:

  BURNS HARBOR -- Northern Indiana Public Service Co. is in hot water with the Indiana Dunes National Lakeshore because of a warm water discharge from the Bailly Generating Station.

  The discharge has eroded away 500 feet of Indiana Dunes National Lakeshore shoreline along with beach and wildlife habitat over a quarter mile. It also heats up the lake water.

  "People go out there and use it as a hot tub in the winter," said Lynda Lancaster, spokeswoman for the National Lakeshore.

  NIPSCO, which denies damaging the park, has a permit to discharge treated cooling water from the Bailly station over an easement into Lake Michigan. Until recent years, the discharge flowed north in a straight line.

  Now the waist-high stream has grown more than 200 feet wide and meanders more than a quarter of a mile northeast onto Indiana Dunes National Lakeshore property.

  Along the way, it has eroded the dunes, which have turned into cliffs up to 8 feet tall.

  "The ... lack of attention to this matter has turned what was once a sandy beach within the national lakeshore into an industrial effluent outflow site," wrote Indiana Dunes National Lakeshore Superintendent Constantine Dillon in a pointed letter to NIPSCO on March 12.

  "This constitutes a loss of habitat for wildlife, destruction of sandy beach for visitor use, and the unauthorized conversion of federal property from public use to use by private industry," Dillon wrote.

From the Indianapolis Star:

• "Coal group's opposition to climate-change bill sparks Duke's departure" - a Sept. 8th story by Robert Annis that begins:

  In July, the American Coalition for Clean Coal Electricity found itself in hot water when its lobbying firm, Bonner and Associates, was caught forging letters from Virginia minority groups to Rep. Tom Perriello, D-Va., urging him to oppose the American Clean Energy and Security Act.
  Advertisement

  The coalition later denied knowing about the forgeries until after the fact, but Duke Indiana spokesman Lew Middleton said last week the actions of some members of the coalition weren't consistent with Duke's efforts to "pass economy-wide, cost-effective legislation as soon as possible."

• "Judge rules site's former owners must pay cleanup costs" - a Sept. 8th story by Jon Murray. Some quotes:

  A bright blue structure behind a fence along an industrial stretch of Dr. Andrew J. Brown Avenue doesn't look like much more than a hulking box.

  But neighbors light up at mention of the year-old building because they remember the ugly sight -- and the pungent smell -- it replaced. Three years ago, an abandoned, decaying brick foundry and the deeply contaminated soil beneath prompted picketing along the street and a cleanup effort by the city. * * *

  Now the city's fight has moved into the courts, and a recent ruling by a Marion County judge has bolstered its efforts to force the property's former owner, Ertel Manufacturing Corp. -- through its insurers -- to pay for millions in cleanup costs.

  Ertel's buildings once stood in the middle of a clutch of industrial businesses and churches in the working-class neighborhood northeast of Downtown Indianapolis. * * *

  When the city took over the site, old insurance documents found inside provided a legal avenue to seek collection of an estimated $5 million in assessment and cleanup costs. In a key ruling Aug. 20, Judge Michael Keele found Ertel liable under Indiana's environmental legal action statute; he has not yet assessed costs. * * *

  [Jon] Mayes, the city attorney, said the city plans to ask Keele's court to consider the costs of further monitoring in the area as part of Ertel's liability. He said the city wants to earn "a clean bill of health" from state and federal environmental regulators.

Updated with more stories:

• "Pork farmer pays for Randolph County fish kill" - Seth Slabaugh reports in the Muncie Star-Press in a story that begins:

  UNION CITY -- A pork producer whose manure killed nearly 50,000 fish in the Little Mississinewa River has agreed to reimburse the Indiana Department of Natural Resources $13,696.

  Rick Kremer, Ansonia, Ohio, also agreed to pay the Indiana Department of Environmental Management a civil penalty of $2,800 and to complete three supplemental environmental projects estimated to cost $83,344.

  State conservation officers observed dead fish over an eight-mile length of the river in August 2008 after Kremer land applied manure when soil and weather conditions were unsuitable.

  A scientifically sound and court-defensible statistical formula was used to estimate that 46,962 fish were killed, said Phil Bloom, spokesman for the DNR. Species included bass, bluegill, carp, catfish, creek chub, darters, minnows, stonerollers and suckers.

  Damages were determined using American Fisheries Society guidelines that calculate the average cost for a hatchery to raise a fish of the same species to the same size.

  "All fish have a value," Bloom said. "The larger the fish, the more it's worth."

Posted by Marcia Oddi on September 8, 2009 08:53 AM
Posted to Environment

Ind. Law - It's the Law: Part 3 of "Death penalty explained in three parts"

Ken Kosky's "It's the Law" column in the NWI Times this week is the final of a three-part series on the death penalty. ( Part 1 is here, Part 2 is here.) This Monday's column looks at Indiana's death row and is headed "Indiana's death row not crowded":

Many people think Indiana's death row is filled with dozens of offenders -- a high percentage of them minorities -- who are executed on a regular basis.

But despite the death penalty in Indiana, few people are on death row.

Only 14 people were on Indiana's death row as of July 1, according to Clark County Prosecutor Steve Stewart's book "Death Row 2009. Capital Punishment in Indiana." Stewart is an expert in the death penalty.

Thirteen of the death row inmates are men and one is a woman. Eleven are white and three are black, according to the book.

On death row for the longest period is Lake County's Debra Denise Brown, who has been on death row for more than 23 years. The person with the least amount of time on death row has been there for more than a year and a half. The average length of time on death row is about 10 years.

The books states that since Jan. 25, 2008, no Indiana jury trial has resulted in a death sentence -- although one inmate was added to death row July 1, 2008, as a result of a successful state appeal.

Since June 15, 2007, no Indiana death row inmates have been executed.

Statistics show only two people have received death sentences in Indiana in the past four years -- an average of one every two years. But in the previous 30 years, there were an average of three and a half per year.

As The Times reported previously, it costs 10 times more to conduct a death penalty trial than a standard murder trial, and death penalty cases are heavily scrutinized in the appeals process. Those factors have led to a decrease in death penalty cases, Stewart said.

Other interesting facts from Stewart's book:

-- The youngest person on death row now is 29, but the youngest person on death row since 1977 was 16. The oldest person now on death row is 60, but the oldest on death row since 1977 was 75.

-- Since 1977, 67 percent of death row inmates have been white, 31 percent black and 2 percent Hispanic; 96 percent have been male and 4 percent female.

-- The 94 defendants sentenced to death since 1977 have accounted for 153 murders. The defendants killed 37 family members, 37 friends or acquaintances, six employers or coworkers, five neighbors, 10 police officers and 58 strangers. Shooting was the most common method, followed by stabbing, strangling, bludgeoning, stomping, drowning, burning and other methods.

-- Lake (with 22) and Marion (with 21) are the counties with the most death sentences.

-- Since 1900, 89 men (65 white and 24 black) and no women have been executed in Indiana. Since 1977, 19 men (16 white and three black) have been executed.

Posted by Marcia Oddi on September 8, 2009 08:45 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 9/7/09):

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.]

Next week's oral arguments before the Supreme Court (week of 9/14/09):

Next Tuesday, September 15th

• 9:00 AM - Indianapolis Marion County Pub. Library v. Charlier Clark & Linard, P.C. - When the Library brought negligence claims against engineering subcontractors involved in the construction of a new parking garage, the Boone Circuit Court entered an order granting the subcontractors summary judgment, concluding that such claims were precluded by the “economic loss” doctrine. The Court of Appeals affirmed. Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., 900 N.E.2d 801 (Ind. Ct. App. 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [For background, start with this July 25th ILB entry.]

• 9:45 AM - Gloria A. Murray v. City of Lawrenceburg - Plaintiffs, who are various persons claiming an interest in a small parcel of land underneath the docking site of a riverboat casino, filed a six-count complaint against the owner of the casino, the City of Lawrenceburg, and the Lawrenceburg Conservancy District. The trial court denied Defendants’ motion for judgment on the pleadings, and also denied Plaintiffs’ demand for jury trial. On interlocutory appeal, the Court of Appeals affirmed the denial of Defendants’ motion for judgment on the pleadings, held that Plaintiffs were entitled to jury trial on some of their six counts, and remanded with instructions to resolve the timeliness of Plaintiffs’ claims. Murray v. City of Lawrenceburg, 903 N.E.2d 93 (Ind. Ct. App. 3/19/2009), 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.]

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 9/8/09):

• None currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 9/14/09):

• None currently scheduled.

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. The past COA webcasts are accessible here.

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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 September 8, 2009 08:38 AM
Posted to Upcoming Oral Arguments

Monday, September 07, 2009

Law - Sex offender laws in the news

"Unjust and ineffective: America has pioneered the harsh punishment of sex offenders. Does it work?" is the title to a lengthy briefing, datelined Harlem Georgia, in the Aug. 6th Economist. A quote:

Georgia has more than 17,000 registered sex offenders. Some are highly dangerous. But many are not. And it is fiendishly hard for anyone browsing the registry to tell the one from the other. The Georgia Sex Offender Registration Review Board, an official body, assessed a sample of offenders on the registry last year and concluded that 65% of them posed little threat. Another 30% were potentially threatening, and 5% were clearly dangerous. The board recommended that the first group be allowed to live and work wherever they liked. The second group could reasonably be barred from living or working in certain places, said the board, and the third group should be subject to tight restrictions and a lifetime of monitoring. A very small number “just over 100” are classified as “predators”, which means they have a compulsion to commit sex offences. When not in jail, predators must wear ankle bracelets that track where they are.

Despite the board’s findings, non-violent offenders remain listed and subject to a giant cobweb of controls. One rule, championed by Georgia’s House majority leader, banned them from living within 1,000 feet of a school bus stop. This proved unworkable. Thomas Brown, the sheriff of DeKalb county near Atlanta, mapped the bus stops in his patch and realised that he would have to evict all 490 of the sex offenders living there. Other than the bottom of a lake or the middle of a forest, there was hardly anywhere in Georgia for them to live legally. In the end Georgia’s courts stepped in and suspended the bus-stop rule, along with another barring sex offenders from volunteering in churches. But most other restrictions remain.

Sex-offender registries are popular. Rape and child molestation are terrible crimes that can traumatise their victims for life. All parents want to protect their children from sexual predators, so politicians can nearly always win votes by promising curbs on them. Those who object can be called soft on child-molesters, a label most politicians would rather avoid. This creates a ratchet effect. Every lawmaker who wants to sound tough on sex offenders has to propose a law tougher than the one enacted by the last politician who wanted to sound tough on sex offenders.

So laws get harsher and harsher. But that does not necessarily mean they get better. If there are thousands of offenders on a registry, it is harder to keep track of the most dangerous ones. Budgets are tight. Georgia’s sheriffs complain that they have been given no extra money or manpower to help them keep the huge and swelling sex-offenders’ registry up to date or to police its confusing mass of rules. Terry Norris of the Georgia Sheriffs’ Association cites a man who was convicted of statutory rape two decades ago for having consensual sex with his high-school sweetheart, to whom he is now married. “It doesn’t make it right, but it doesn’t make him a threat to anybody,” says Mr Norris. “We spend the same amount of time on that guy as on someone who’s done something heinous.”

"Not every sex offender is Phillip Garrido" is the headline to this Sept. 5th item from the San Francisco Examiner, which quotes blogger Laurie Essig:

The case of Phillip Gariddo, accused of kidnapping then 11-year-old Jaycee Lee Dugard and holding her hostage for 18 years, sexually abusing her and fathering two children with her, has revealed the paradox at the center of America’s unusually tough sex offense laws. The harsher the laws get, the more people who are caught in the ever-expanding net of offenses, the easier it is for the real child abusers to go undetected.

"Iowa court dismisses challenge to sex offender law" is the headline to a Sept. 4th AP story by Melanie S. Welte. Some quotes:

Robert Formaro argued, among other issues, that the law violated his right to travel and freedom of association. He claimed, for example, that it prohibited him from traveling to any location where he may fall asleep within the 2,000-foot zone. And, he said, it barred him from participating in overnight family gatherings and overnight stays at a hospital within the 2,000-foot zone.

Ruling in the case from Polk County, the court said the law dictates where Formaro may live, but doesn't impede his freedom of travel or right to association.

"Formaro is free both day and night to attend political meetings, religious services, or other gatherings, both in and outside the protected zone," the court said.

Formaro also claimed the law was vague, arguing the term "reside" doesn't convey what conduct is prohibited.

In its ruling, the court said it's clear the Legislature wanted to prevent sex offenders from living within 2,000 feet of a school or day care and "not casual sleep within a prohibited zone."

"While the 2,000-foot rule impinges on where Formaro may establish a residence, there is no fundamental right to live where you want and certainly not one based upon the First Amendment," the court said.

Court records show that Formaro was 15 when he was charged in 1998 of second-degree sexual abuse in juvenile court. He was convicted but not placed on the sex offender registry because the court found he was a low risk to reoffend.

Two years later, he was accused of participating in a burglary. Formaro pleaded guilty and was sentenced to 10 year in prison and was placed on the state's sexual offender registry.

He was released from prison in 2004 and lived with his parents in Ankeny with the approval of his parole officer.

In 2005, his new parole officer discovered his parents' home was within 2,000 feet of an elementary school and told him he needed to move within five days.

He filed a petition claiming the law was unconstitutional, which a district court denied. He appealed to the Iowa Supreme Court. * * *

The Legislature revamped the law this year. It retains the 2,000-foot ban for schools and day care centers for those who have committed sex abuse against a child.

It also puts in place a ban on offenders entering those places without permission, and it establishes a 300-foot "no loiter" zones around those sites.

Parrish says he's considering asking the Iowa Supreme Court to reconsider the case.

"I think some of the real issues we tried to address in Formaro are still out there and I think only through court review of the new statute are we going to be able to truly understand what impact it's going to have on people affected by these rules," he said.

Here is a lengthy list of earlier ILB entries contianing the term "sex offender".

Posted by Marcia Oddi on September 7, 2009 03:04 PM
Posted to General Law Related

Ind. Law - Time for another golf carts update

The most recent ILB golf carts update was August 17th, so it is certainly time for another:

• Berne - "Berne joins golf cart parade " reported Eric Mann in the August 25th Decatur Daily Democrat:

  Berne has formally joined the golf cart parade. By a 5-0 vote on Monday night, the Berne City Council approved, with two changes, a golf cart regulation ordinance that will be in effect as soon as it is published in the Berne Tri-Weekly News. The new law will allow golf cart use on city streets and alleys if a cart is "registered, operated, insured, and equipped" as required by the ordinance. Among Berne's golf cart requirements are the following:

  • No golf cart may be operated on a highway except for the purpose of crossing a highway perpendicularly at an intersection with a city street.
  • Golf carts must obey posted speed limits and may not be operated in excess of 30 mph.
  • Golf carts shall be operated as closely to the right edge of the street or alley as possible and may not impede the flow of normal traffic.
  • No golf cart may be operated or parked on city sidewalks.
  • No golf cart shall be operated on a street between [midnight] and 5 a.m.
  • Only a person with a valid driver's license shall be authorized to operate a golf cart on a street and the driver of a cart must have that license with him or her while driving.
  • All golf carts must be insured for a period of not less than 12 months.
  • Golf carts must have "factory seating for all occupants, a rearview mirror, headlights, tail lights, brake lights, front and back turn signals, and a slow-moving vehicle sign attached to the rear." The lights must be visible for at least 500 feet.
  • No golf cart may be operated on a street until [it] is registered with the city. Registration must be done by the city police and will cost $25. One of the two changes reduced that fee from the originally-proposed $30.

  Police Chief Tim Taylor said at the meeting that golf cart owners should contact the police, who will come to the owners' homes to register their carts. Each registration expires on December 31 of that year. * * * The penalty for violating the new law is a fine of $50 to $100, plus court costs. If a golf cart owner has two violations in a calendar year, the registration of that cart will be revoked if that same golf cart was involved in the first violation If a golf cart is impounded by the police, it will not be released until "the basis of the violation has been corrected" and until the towing and impoundment fees have been paid by the owner or operator of the cart.

• Franklin and Bargersville - Sarah Michalos reported ($$) Aug. 25th in the Johnson County Daily Journal:

  Franklin and Bargersville are drafting new rules for people with golf carts, such as requiring the carts to be registered, insured and equipped with headlights, turn signals and seat belts. A new state law effective last month bans golf carts on both public and private streets, but cities and towns can draft their own laws if they want to allow carts. Golf carts are used regularly by the Franklin parks department, Franklin College and the Franklin United Methodist Community, and should be allowed as long as certain rules are followed, Mayor Fred Paris said. The carts also have become more popular since fuel prices spiked, and for some residents are a less costly way to get around, Bargersville Police Chief Lin Hunt said. Safety and visibility will be the focus of both communities' local laws, which haven't been approved yet. Golf carts are banned on public streets in Greenwood, and the city doesn't have any plans to draw up local rules to allow them, Police Chief Joe Pitcher said. * * *

  As part of the new rules, golf carts wouldn't be allowed to travel down streets where the speed limit is higher than 30 mph, McCarty said. Carts also wouldn't be allowed to travel along certain busy streets, such as U.S. 31 and Jefferson Street, but would be able to cross the streets on their way somewhere else.

• Adams County - "Adams County has golf cart proposal " reported Eric Mann in the September 1st Decatur Daily Democrat:

  The Adams County Commissioners have officially spoken on the golf cart issue. A vote of 3-0 on Monday passed a golf cart use ordinance on first reading, after which the measure was tabled until next Tuesday's meeting.

  The ordinance notes that the state legislature this year "passed legislation authorizing the regulation of golf carts by a local authority" and that the commissioners "recognize that residents of the county desire to operate their golf carts on and across the roads and streets under the jurisdiction of the county."

  Initial interpretations of the law said that counties did not have the option that cities and towns had, to make legal the use of golf carts. Other counties have approved the use of golf carts on county roads, apparently citing the "regulation of golf carts by a local authority."

• Decatur - "Golf carts back...again" reports Bob Shraluka in the Sept. 3rd Decatur Daily Democrat:

  The issue of golf carts — legalized on July 21 in Decatur — simply won't go away. The matter was back before city council once again Tuesday night for some "tweaking" of the ordinance. Not only was the tweaking not a accomplished, but some new questions were raised. One tweak involved Bunge North America's use of 20 to 25 golf carts to move employees around on its complex. City officials are willing to exempt the carts from the city ordinance when the carts are being used on the portion of Second St. at the Bunge complex. In addition, some residents of Deer Run and Grey Goose subdivisions seek the same exemption which allows city residents using their carts to travel to and from the Cross Creek course, only the former would involve the Grey Goose Golf Club. Again, council members are prepared to give the okay. City Attorney Tim Baker prepared an amendment to the golf cart ordinance to cover the issues above. Before long, however, it was questioned whether city officials want Bunge carts exempt from the provision which bars golf carts on city streets from midnight to 5 a.m., and whether the same carts should be exempt from the same law which requires lights on golf carts. Baker also brought up the fact that the federal Occupational Safety & Health Administration (OSHA) requires golf carts with seat belts to also have a roll bar. Decatur's ordinance does not require seat belts except for children who fall under the state law requiring safety restraints. So would that come under the OSHA seat belt provision requiring the roll bar? Eventually, at the suggestion of Mayor John Schultz, the amendment of the ordinance was taken under advisement — meaning golf carts will be return once again at a future meeting.

• Crothersville - "Golf carts may get green light" reports Brandy Emily in the Sept. 7th Seymour TribTown:

  CROTHERSVILLE — Change may be coming to the streets of Crothersville if town council members approve golf carts as a means of transportation on the town roads. Council members Ardell Mitchell, Karen Mains and Bill Nagle reached a consensus at their monthly meeting Tuesday night for an ordinance allowing golf carts to be driven on streets in Crothersville to be drafted for consideration next month. The ordinance will include golf carts only, not ATVs. Council members made it clear they want the ordinance to include the state minimum requirements for drivers as well as adding reflectors to golf carts driven on town streets. Council also briefly discussed including operating hours for the vehicles to be on the roads. The ordinance will also include a provision that those wanting to drive their golf carts would need a Crothersville city sticker and pay a registration fee to ride in town.

Posted by Marcia Oddi on September 7, 2009 01:00 PM
Posted to Indiana Law

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

Updating this ILB entry from Sept. 5th, which included this quote:

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. * * *

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.

Read the Sept. 5th entry in conjunction with this lengthy story by Kevin O'Neal in today's Indianapolis Star, headed "Killer's early release in pastor's 1993 slaying sparks outrage." Some quotes:

Sixteen years ago this month, Dean Kernodle watched in horror as Elizabeth Mayberry gunned down the pastor at his Hendricks County church.

Today, Kernodle is outraged that Mayberry will be released in a few weeks after serving 16 years of the 60-year sentence a judge gave her for the murder of the Rev. Roland "Ron" Phillips Jr. * * *

Now, the case is putting renewed focus on sentencing policies that allow some people to be released early from prison for good behavior and for getting an education while behind bars. * * *

Psychiatrists who testified at Mayberry's weeklong trial disagreed about whether she was insane when she killed Phillips. A Hendricks County jury found Mayberry guilty but mentally ill, and the presiding judge, Mary Lee Comer, gave her the maximum 60-year sentence.

Later, the Indiana Supreme Court reduced the sentence to 40 years. The court ruled on an appeal in 1996 that Mayberry was mentally ill at the time she shot Phillips, which should have been considered a mitigating factor in her sentence.

Like all Indiana prison inmates, Mayberry also benefited from standard Department of Correction procedures that allow a day off a sentence for every day of good behavior. Inmates with a clean record behind bars typically serve only half the sentence a judge gives them.

Inmates can earn further reductions in their sentences by obtaining college degrees while they're in prison. Mayberry completed studies in vocation printing and drafting, and received an associate's degree in business administration and a bachelor's degree in general education.

Those educational accomplishments earned her the maximum four years of credit time that the DOC allows.

The idea of education credit for Indiana inmates goes back to the 1980s. Leslie Duvall, a former member of the Indiana Senate, advanced the idea during the years he served on the Senate Judiciary Committee.

"Lightening a sentence to improve themselves behind bars, I still favor that," said Duvall, now 85. "My fingerprints are all over that legislation. It's an option the DOC has for self-improvement."

In the 2008-09 school year, the Department of Correction had 3,301 inmates taking college classes; 940 received degrees and credit time on their sentences.

Getting a college degree in prison improves the chances for prisoners to succeed once their sentence has expired, according to an inmate advocate.

"The best guarantee of reducing recidivism is education," said Larry Landis, executive director of the Indiana Public Defender Council. "Education is in effect a way to empower yourself. You see that you have a choice and an option other than the depressing cycle of crime."
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Prosecutors across Indiana have complained that some inmates have taken college courses more to have time subtracted from their sentences than to prepare themselves for life beyond prison, said Stephen Johnson, executive director of the Indiana Prosecuting Attorneys Council.

Although there's no hint of a problem with Mayberry's accomplishments, prosecutors have worried about inmates misusing the education credits to get more time off their sentences than they deserve.

The whole system of good time and credit time, along with the possibility of sentence reduction through appeals, makes it hard for prosecutors to tell victims' families how long a defendant will stay in prison, Johnson said.

Posted by Marcia Oddi on September 7, 2009 12:45 PM
Posted to Indiana Government

Law - "Judges’ Frustration Grows With Mortgage Servicers"

That is the headline to this lengthy NY Times story by John Collins Rudolf, dated Sept. 3rd. Some quotes:

With consumers complaining about the difficulty of getting any response from their mortgage servicers, the effectiveness of the Obama administration’s plan to provide homeowner relief is being threatened. As they wait for an answer on whether they might qualify, homeowners are succumbing to foreclosure and bankruptcy proceedings and winding up in courts — at times in front of judges who are also frustrated. * * *

Under preliminary questioning by one of the bank’s lawyers, Mr. Ohayon stated that Mrs. Giguere had repeatedly failed to provide a financial worksheet, a critical document in processing a loan modification.

Under cross-examination by Mrs. Giguere (who had a little assistance from Judge Haines), the bank’s defense withered. From her files, Mrs. Giguere produced a letter from Wells Fargo describing the paperwork that she needed to file for a loan modification. In the witness chair, Mr. Ohayon read the letter.

“Mrs. Giguere is right,” Mr. Ohayon concluded. “The letter did not ask for a financial worksheet.”

Experts said the hearing in Phoenix reflected rising frustration by federal bankruptcy judges with mortgage servicers, which process payments for banks and the investors who own large pools of loans. In recent months, judges in Ohio and Pennsylvania have chastened mortgage servicers for failing to process payments properly and for errors in foreclosure filings, among other concerns.

“The judges are seeing more and more of a pattern of indifference to record-keeping and good business practices,” said Robert Lawless, a law professor at the University of Illinois who specializes in bankruptcy law.

One of the biggest complaints by homeowners has been poor communication by mortgage servicers on the status of their applications for loan modifications. In the case of Mrs. Giguere, Wells Fargo decided back in March shortly after she faxed the bank her application that she did not qualify for the Home Affordable Modification Program.

She did not learn of the bank’s decision until Thursday.

“When did you tell the debtors that their loan was no longer being considered for modification?” Judge Haines asked Mr. Ohayon.

“We haven’t. They’ve never been told,” said Mr. Ohayon, adding: “Customer communication is something we’re taking a serious look at, your honor.”

Here is a list of other ILB entries referencing mortgage servicers.

Posted by Marcia Oddi on September 7, 2009 12:39 PM
Posted to General Law Related

Ind. Decisions - Two more NFP COA decisions reclassified

Beaty Construction, Inc. v. Board of Safety Review, et al - NFP opinion issued 7/07/09; Appellant's motion for publication filed 8/06/09; Appellant's petition for rehearing received 8/06/09; Ordered published 9/1/09.

From the opinion:

We disagree. The applicable regulation requires that the inspection reports be signed by the inspector. Beaty admits that this was not always done in its inspection reports. Although Beaty claims that this irregularity was at most a de minimis violation, this is precisely why the safety report cited Beaty for a non-serious violation and issued no fine."

See the 7/07/09 ILB summary here - 5th case.

James Niezer v. Todd Realty, Inc. - NFP opinion issued 7/23/09; Appellant's motion for publication filed 8/11/09; Appellant's petition for rehearing received 8/24/09; Ordered published 9/1/09.

Dispute involving real estate listing agrrement.

Posted by Marcia Oddi on September 7, 2009 10:26 AM
Posted to Ind. App.Ct. Decisions

Sunday, September 06, 2009

Courts - Houston lawyer asks "several local media outlets to provide the names of readers and listeners who commented about his client online"

Adding to the ILB's list of entries on impacts of and access to annonmyous posts and comments, some quotes from this story by Mary Flood of the Houston Chronicle:

A lawyer for Lucas Coe, charged in the death of 4-year-old Emma Thompson, has asked several local media outlets to provide the names of readers and listeners who commented about his client online.

Bert Steinmann, The Woodlands-based attorney for Coe, said he was struck by the conclusions people drew about his client and the specificity of some comments that made it appear they came from people with personal knowledge of the case. * * *

Steinmann said he's sent subpoenas to media including The Houston Chronicle, the Conroe Courier, KHOU (Channel 11) and KTRK (Channel 13).

Those who comment generally use pseudonyms, and the lawyer has asked for identifying information on about 300 of them.

The lawyer said most of the media outlets have already moved to quash the subpoenas.

“In our Terms of Service and Privacy Policy, we alert chron.com users that their names may be disclosed in response to litigation,” said Jeff Cohen, editor of the Chronicle. “However, in this case we are notifying the users in question so they can make objections if they so choose.”

Posted by Marcia Oddi on September 6, 2009 09:42 PM
Posted to Courts in general

Law - "Safeguarding History: Why the records of Supreme Court justices should be governed by rules -- not individuals"

An important editorial today from the Washington Post:

THE CASE of former Supreme Court justice David H. Souter shows why the country needs a sensible and formal policy on how justices preserve and disseminate material they produce while performing their public duties.

Justice Souter agreed last month to donate his personal and professional papers to the New Hampshire Historical Society in his home state. But he ordered that they be off-limits to the public, including academic researchers, historians and journalists, for 50 years from the date of his retirement -- or until 2059. This restriction is excessive and puts Justice Souter's records out of reach for two generations, making it that much harder to fully and accurately assess his work and impact on the court.

Yet it could have been worse. Only documents that are part of an official case record -- such as briefs, final opinions and orders -- must be preserved for at least some time. No such strictures exist for a justice's work product, which could include notes from private conferences, drafts of opinions or correspondence with colleagues or clerks about cases. Justice Souter could just as easily have ordered these documents burned, shredded or otherwise destroyed in full, as Justice Charles Evans Whittaker did after stepping down from the court in 1962.

Most justices would probably never consider such drastic and historically devastating actions. But the absence of guidelines leaves individual justices with far too much power to determine the fate of records that the public rightly has a claim to. After all, justices are public servants and are paid with public dollars.

It's reasonable to allow a grace period between a justice's retirement and the public release of papers. Such a lag should help ensure against disclosures about pending matters and lawyers' use of very recent information that could tip them off to the thinking of justices still on the court. The Brownell Commission, which studied the issue in the 1970s, recommended that justices' working papers be deemed public property and made available to the public 15 years after a justice's retirement. Congress took up the matter in 1993, after the controversial release of the papers of the late Justice Thurgood Marshall. Then-Chief Justice William H. Rehnquist, in response to an invitation to address lawmakers, wrote that legislation was "not necessary and that it could raise difficult concerns respecting the appropriate separation that must be maintained between the legislative branch and this Court." Nothing ever came out of the hearings.

The best way to avoid concerns is for the Judicial Conference of the United States, the policymaking body for the federal judiciary chaired by Chief Justice John G. Roberts Jr., to take the lead in establishing guidelines for justices and all federal judges. But if the judiciary cannot or will not act, Congress should.

Posted by Marcia Oddi on September 6, 2009 09:36 PM
Posted to General Law Related

Law - Dawn Johnsen's DOJ nomination impacts Monroe County school board

Updating the ILB entries on DOJ nominee Dawn Johnsen, Andy Graham of the Bloomington Herald-Times (who also wrote this earlier story) reports today ($$) on the impact of the stalled confirmation process on the Monroe County Community School Corp. board (MCCSC), upon which Johnsen's husband, John Hamilton, began serving this year. Some quotes from the story:

More than a few people would dearly love to see the U.S. Senate expedite Indiana University law professor Dawn Johnsen’s confirmation process as head of the Office of Legal Counsel — including members of the Monroe County Community School Corp. board.

John Hamilton, Johnsen’s husband, began his four-year term on the MCCSC board in January, the same month his wife was nominated by President Barack Obama.

But he, like the rest of his family, has had to make family and professional plans amidst uncertainty about when or if she would be confirmed for her new Washington, D.C.-based post. Johnsen gained committee approval in March, but still has not received a vote before the full Senate.

Hamilton made 9 out of the 10 regularly-scheduled, twice-monthly MCCSC board meetings until June. He has missed four of seven since then, but has managed to make at least one each month and wrote via e-mail Friday that he intends to attend the Sept. 15 meeting that will include a public hearing on the 2010 MCCSC budget.

The family hasn’t sold its Bloomington home, but the couple’s two sons are now attending school out East.

“Certainly, family matters have made our lives a little more complicated for longer than we had hoped,” Hamilton said via cell phone Thursday afternoon.

“I certainly love being on the school board and am doing my best to continue to serve while we wait and expect a relatively prompt resolution of some issues with which we’ve had to deal.”

The Senate reconvenes Tuesday, and some Washington watchers feel Johnsen’s situation could clarify before the month is out.

MCCSC board president Jeannine Butler said that Hamilton had indicated, all along, that he would resolve his own status on the board after his wife’s confirmation process was completed, but few anticipated it would last this long.

“When she first was nominated, John told me he planned to stay on the board till she was confirmed, planned to be an active member and enjoyed the work,” Butler said. “In June, he reiterated that and hoped for some sort of resolution in August.

“I understand the situation, and I’m sympathetic with him. But we also need a full board. We need a full complement of seven active, participating members.” * * *

“I’m empathetic with John, obviously, but he’s had to miss four meetings since June,” said Butler, who doesn’t favor a continuation of that pattern. “That’s an issue that’s not at all about John, but about having a full board.”

Hamilton plans to continue serving on the board, for the time being, but said, “I have a new appreciation for how the federal government can, at times, interfere with the operation of local government in unexpected ways.”

The Herald-Times also has this editorial ($$) today, asking whether Hamilton should step down:

When John Hamilton ran a successful race to join the board of the Monroe County Community School Corp., he couldn’t have known his wife, Dawn Johnsen, would get caught up in a drawn-out nomination process for a significant role in the Obama administration. But that has happened.

Hamilton now finds himself in an untenable position regarding his attempt to serve the community through membership on the school board. He’s missed four of the last seven school board meetings as the focus of his and his family’s life — his sons are not enrolled in the MCCSC anymore — shifts more to Washington, D.C. He does plan to attend the Sept. 15 meeting, even though he previously had said that was up in the air.

No one is questioning his desire or ability to serve. But it is a legitimate question to ask whether he should continue to fill a seat on the MCCSC board when his energies must be split because of circumstances he can’t control.

He needs to be a full partner with the rest of his board colleagues if he is to continue.

Posted by Marcia Oddi on September 6, 2009 07:11 PM
Posted to General Law Related

Law - Angie's List calls for better regulation; plus see the ILB's dog

Posted on Sept. 3rd, via dBusinessNews, this very long press release that begins:

(INDIANAPOLIS) -- Angie’s List Founder Angie Hicks today called on state lawmakers around the country to enact uniform and understandable trade licensing laws that give consumers an assurance that anyone holding a license is qualified to do the job it covers.

She also asked lawmakers to set aside a portion of licensing fees for consumer protection funds, as a few states already do, so homeowners who are bilked by licensed contractors can recover their lost investments. Hicks will be sending letters to governors across the country outlining the need for better trade licensing laws.

“Most trade licensing is too complicated and offers too little enforcement or protection,” Hicks said. “Homeowners should be able to trust that if a governmental body has given a license to a contractor, that the contractor is reliable and qualified. They should also have access to some recompense if they rely on a licensed contractor who doesn’t deliver, or worse yet, cheats them.”

Hicks’ call for better laws around the country coincides with a strengthening of Angie’s List policies about trade licensing. * * *

“Licensing laws vary greatly across the country and even among cities within the same state, which makes it hard for contractors to keep track of what’s required and what isn’t. Consumers don’t have a chance of figuring it out without help,” Hicks said. “Consumers are still responsible for determining the license status of the contractors they hire, and Angie’s List will be working to make it easier for them. But the key to really accomplishing a better system will fall to lawmakers.”

While lawmakers may debate how – or if – to address the issue, Angie’s List is now requiring companies on the List to attest that they are in compliance with state and local laws. Like the IRS, Angie’s List will audit contractors to verify they are following the law. Those found to be out of compliance will have an opportunity to comply or face actions from Angie’s List that will include alerting members to their true status.

Hicks said it’s probably unrealistic to expect all states to adopt the same uniform licensing law that requires minimum training and qualifications, proper enforcement and consumer protection. A state-by-state approach is likely more realistic. “Even if each state has different trade licensing laws, having one direction per state to follow would be better than the mish-mash we have now,” she said.

The release goes on to discuss "the complexity of the issue" at length.

For much more, see this story in Angie's List Magazine, plus the links to the right of the story, including "Terms You Should Know."

In addition, John Ketzenberger, currently of the Indianapolis Star, has a column today headed "Angie's List keeps raising bar on quality."

The ILB's Dog: While visiting the Angie's List Magazine, take the time to admire my handsome Golden Retriever, Higgins Oddi. He is here, the happy blond dog on the right in the first photo.

Posted by Marcia Oddi on September 6, 2009 04:47 PM
Posted to General Law Related

Ind. Courts - "NY businesswoman was high-class grifter"

Charles Wilson of the AP has this lengthy story today that appears in Newsday. Some quotes:

INDIANAPOLIS (AP) — Dina Wein Reis seemed to have it all — millions in the bank, an extensive art collection worth millions more and a luxurious Manhattan brownstone, where she hosted high society parties.

But authorities say the socialite's success was the result of an elaborate scam in which she tricked Fortune 500 corporations into selling her millions of dollars worth of goods at a fraction of the regular price for use in nonexistent promotions. She then resold the products at a hefty profit.

A federal grand jury in Indianapolis indicted Reis, 45, on seven counts of fraud and conspiracy in October, saying she swindled companies in Indiana, Missouri, New Jersey and Kentucky. Federal prosecutors believe there are victims in other states.

Indianapolis attorney J. Richard Kiefer, who represents Reis, said she denies the government's allegations. He said Reis could not comment due to federal court restrictions. There was no number for Reis in published listings for New York.

Reis has been released on her own recognizance while attorneys battle over whether to move her trial from Indiana to New York. A federal judge heard arguments in the jurisdiction dispute Friday and is expected to rule soon. * * *

One of those targeted was Donald Dumoulin, then an executive at Indianapolis-based Roche Diagnostics Corp.

After meeting with Reis, Dumoulin persuaded Roche to sell her $11.6 million worth of diabetic test strips for $1.7 million, according to a 2007 lawsuit Roche filed against Reis. Roche later discovered Reis' operation had tried to sell the strips to Walgreens for about $4.6 million, which Halliden said led to the criminal probe.

The lawsuit was settled for an undisclosed amount. Roche declined to comment, and Dumoulin didn't return phone messages from The Associated Press seeking comment.

Prosecutors say Reis made the network seem real by passing along personal endorsements by third parties she secretly paid, concocting marketing reports, even taking potential victims on tours of warehouses or retail stores that supposedly were part of the promotional program.

Court records show Reis' operation — under a variety of names — targeted dozens of other companies over the years, including Bristol-Myers Squibb, Beech Nut, Nestle, Revlon and Kraft.

At least a half-dozen lawsuits have been filed against Reis, but the cases generally have been settled out of court. Many victims don't sue because they're embarrassed at having been had, said Donald deKieffer, a Washington, D.C., attorney who has helped prepare several lawsuits against Reis.

Posted by Marcia Oddi on September 6, 2009 03:28 PM
Posted to Indiana Courts

Ind. Courts - "And when he came to the judge, the waiter asked, 'And I suppose you want the Arrogant Bastard beer?'"

That quote from an entry Friday in Ruth Holladay's Blog.

P.S. - Narrowing the field considerably, it was reportedly a federal judge.

Posted by Marcia Oddi on September 6, 2009 03:15 PM
Posted to Indiana Courts

Ind. Law - Indiana malpractice cap may be challenged

Jeff Swiatek's story Sept. 5th in the Indianapolis Star was headed "Widower might challenge malpractice cap." Some quotes:

A widower who won an $8.5 million medical malpractice verdict against Community Hospital North in his wife's death now might challenge a state law that reduces the award to $1.25 million.

The verdict was issued Thursday in the case of Debbie Plank, a Hancock County mother of three. She died in 2001 after the hospital failed to promptly get an X-ray to doctors that showed she had a dangerous bowel obstruction, her family's lawyers claimed.

The damage award will be capped at $1.25 million by a state law that limits malpractice verdicts against medical providers.

"We think that cap is unconstitutional," said John Muller, attorney for the Plank family.

The cap was last raised by the state legislature in 1998, when it went up from $750,000. * * *

Tim Plank said he didn't file the lawsuit for the money. One motivation was the lack of an apology by the hospital.

Muller said Plank also was angered when a hospital representative called after his wife's death, asking him to complete a customer satisfaction survey.

"It just made him so angry. They had the gall to ask him, 'Are you satisfied?' " It was like they didn't even know what they had done to his wife and him," Muller said.

Plank said a hospital attorney approached him after testimony in the trial ended and passed on an apology from the hospital.

The Shelbyville News had this story by Jeff Tucker. Some quotes from this much more comprehensive report:

A local law firm was a successful litigant in a two-week medical malpractice case that ended late Thursday with a Marion County jury imposing an $8.5 million judgment against an Indianapolis doctor and hospital.

How much will actually be awarded to the family of a McCordsville woman who died at Community North Hospital in 2001 from bowel obstruction complications was uncertain Friday, given the freshness of the verdict and the state’s cap on medical malpractice claims, said attorneys and the judge in the case.

Mike Stephenson of McNeely Stephenson Thopy & Harrold of Shelbyville was lead counsel for the plaintiffs in the case against Dr. Joseph Pavlik and Community Hospitals of Indiana, based in Indianapolis.

Debbie Plank of McCordsville died at Community North Hospital on Dec. 1, 2001, after her radiology imagery was lost and a surgery to relieve a bowel obstruction delayed, according to court testimony. She was 47.

Plank went to the emergency room at Community North on Nov. 13, 2001, the third time in a week, complaining of stomach pains. She was admitted to the hospital, and at 5 a.m. Nov. 13 had an X-ray taken that showed a small bowel obstruction, according to court testimony.

Stephenson said the two-week proceeding established that the hospital’s radiology department should have alerted hospital physicians of the potential need for an emergency surgery.

Plank was seen by hospital doctors, including Pavlik, a general surgeon with Castleton Surgical Group with 20 years of experience. Pavlik, unaware that Plank had a bowel obstruction, went to the radiology department to check on Plank’s X-rays, but could not find any film, according to testimony.

“Pavlik claimed it was a very rare event to have this type of bowel obstruction and, had he known of the X-ray, his course of treatment would have been completely different and Debbie Plank would be alive today,” Stephenson said.

Plank’s attending physicians did not know of her condition until later, and the surgery was delayed 24 hours, until Nov. 14, 2001, court testimony established.

“When they did the surgery, they found that part of her intestine had already died,” said plaintiffs’ co-counsel John Muller.

Plank had surgeries on Nov. 14 and 15, was placed on life support after the second surgery and died on Dec. 1, 2001.

The Marion County Circuit Court jury returned the whopping judgment at about 11 p.m. Thursday after deliberating for about six hours after the nine-day trial. * * *

“She was really an exceptional woman,” said Muller, an attorney with Montross Miller Muller Mendelson & Kennedy of Indianapolis. “I think the verdict reflected the fact that this was really a close-knit family that really suffered from the loss of her.”

Circuit Judge Louis F. Rosenberg confirmed Indiana’s maximum medical malpractice claim is $1.25 million and told The Shelbyville News Friday afternoon that no new motions had been filed in the case.

“There are no pending motions as far as I can tell,” he said. “I will issue a judgment based on the jury verdict.”

The co-defendants can appeal the ruling to the Indiana Court of Appeals, and the plaintiffs could question the constitutionality of the state’s cap.

Robert G. Zeigler of Ziegler Cohen & Koch of Indianapolis represented Community Hospitals of Indiana, while David J. Beach of Eichhorn & Eichhorn in Hammond represented Pavlik. * * *

Stephenson and Muller said Friday that it was too early to tell how the plaintiffs would proceed, but said any appeal of the state cap would begin with a motion and hearing in Marion County Circuit Court.

The Medical Malpractice Act of 1976 originally imposed a $500,000 cap on medical malpractice claims, they noted.

“There have been cases in the past where the verdict has exceeded the cap. There hasn’t been a constitutional challenge to the cap,” Muller said. “We’re in discussions, evaluating. We’re looking at it to see if there is a constitutional challenge to that cap. In other states, these caps have been found to be unconstitutional.

“It’s up to the client to decide if the cap will be challenged.”

The plaintiffs’ attorneys said the jury wasn’t told about the $1.25 million cap during the trial and based its judgment on the merits of the case.

“The jury isn’t told about the cap. The jury listened to the evidence and returned a verdict for the damages,” Muller said. “Typically, the judge would reduce the judgment to the cap.”

Stephenson said that by law the judge is compelled to reduce the jury’s judgment to $1.25 million.

Posted by Marcia Oddi on September 6, 2009 02:46 PM
Posted to Ind. Trial Ct. Decisions | Indiana Law

Law - "Cyberlaw Cases: The Top Ten Pending Cyberlaw Cases"

This is a good idea *, a new blog designed to follow ten cases: 1. The Google Books Settlement; 2. The NSA Warrantless Wiretapping Cases; 3. The Future of Method Patentability; 4. A Billion Dollar Test of the DMCA Safe Harbors; 5. Is the FCC Authorized to Promote Net Neutrality? 6. The File Sharing Trials; 7. The Copy Ownership Cases; 8. The AdWords Cases; 9. Intermediate Copying to Extract Information; and 10. State Efforts to Regulate the Internet. The ILB has been following several of these cases, particularly #1 and #10.

From a UC Berkeley News release:

Two University of California, Berkeley, professors are teaming up with two colleagues to launch "Cyberlaw Cases," a blog covering what they consider the top 10 most important pending U.S. legal cases involving issues that impact the Internet, databases and software programs.

_______
*Although I think the concept of following these ten cases is great, I do have some questions about using a blog format for this; perhaps a Wiki would work better. Time will tell. The other concern is how frequently will it be updated. Currently it appears not to have been updated since the August 31st rollout.

Posted by Marcia Oddi on September 6, 2009 12:44 PM
Posted to General Law Related

Ind. Courts - "Judge retires from military: Maughmer plans on devoting energy to elected position"

Kevin Lilly has this long feature in yesterday's Logansport Pharos-Tribune. Some quotes:

As a high-ranking officer in the U.S. Air Force, Judge Rick Maughmer dealt with national secrets and traveled the world serving his country.

Last month, the Cass County native brought his military career to a halt after nearly 37 years. Maughmer recently discussed his experiences in the intelligence and security trades, as well as his plans for the future. * * *

Through the years, Maughmer acquired the titles of communications squadron commander, security forces commander and deputy director of security forces, which is the No. 2 person for all security forces for the Air Force Reserve. He retired with the rank of colonel.

In 2000, Cass County residents elected Maughmer to serve as judge of the newly created Cass Superior Court II. Less than a year into his judgeship, terrorists attacked the World Trade Center Towers and the Pentagon.

After Sept. 11, 2001, Maughmer left the courtroom for Robins Air Force Base in Georgia, where he spent 13 months.

Maughmer admitted that he felt guilty about splitting his time between the military and his elected position. After returning from Robins, he worked out a deal with the Air Force and Garrett Palmer, the special judge who steps in for Maughmer when he is away one week out of each month.

Maughmer says he has always handled sentencing in felony cases.

“I’d still do that because I feel an obligation to the taxpayers. They hired me to the job,” Maughmer said.

The judge tried to retire in 2005, but the Air Force offered him a job in recruitment.

“It was an attractive offer that I could not refuse,” he said.

Maughmer never thought he’d be in for more than 36 years, but he said the military was good to him. His service paid for an education, helped raise a family and opened doors he could not have imagined.

“It just gave me an opportunity for my life,” Maughmer said.

Maughmer’s plans for the future include devoting time to his children, his wife of 36 years and the courtroom.

“I want to be the best judge I can be, spend more time with the family and get involved in the community to the extent that I can as a judge,” said Maughmer, who is considering a second job as local farm hand.

As for his future as judge, he will hold the position “until the people fire me,” he said.

Posted by Marcia Oddi on September 6, 2009 12:38 PM
Posted to Indiana Courts

Courts - C-SPAN focuses on the Supreme Court; also feature on campaign finance

C-SPAN is going all out - it has a new website, totally devoted to the SCOTUS. And it will have a week-long focus on the Court, from Oct. 4 - 12th -- "Hear directly from the Supreme Court Justices themselves, and see the building in exquisite detail." It also has a preview on its YouTube page.

See also this Tony Mauro entry from Sept. 4th on The Blog of Legal Times.

Re campaign finance, American and the Courts this week featured a one and one-half hour panel discussion of the upcoming Sept. 9th oral argument in Citizens United v. FEC, on at the constitutionality of campaign finance laws. Indiana's Jim Bopp was one of the four panelists. Watch the 1 1/2 hour excerpt here or there is also a link to the "entire program." (My thoughts: I found it deathly boring.)

Posted by Marcia Oddi on September 6, 2009 12:22 PM
Posted to Courts in general

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

Updating this entry from Sept. 4th, "Mourdock again aims at Chrysler: Wants bankruptcy sale re-examined" is the headline to a story today by Eric Bradner in the Evansville Courier & Press. Some quotes:

INDIANAPOLIS — State Treasurer Richard Mourdock is reviving his dormant effort to call the Chrysler bankruptcy proceedings into question.

The U.S. Supreme Court rejected a June bid by three Indiana funds to block a deal that Mourdock, a former Vanderburgh County commissioner, said would break from ordinary process and cost Indiana funds millions of dollars. * * *

The Supreme Court's decision to reject an emergency appeal to halt the bankruptcy proceedings at the last minute was rejected, but the high court did not consider the merits of the trio of Indiana funds' arguments at the time.

A petition filed Thursday asks the Supreme Court to clarify whether similar bankruptcy proceedings should be allowed in the future — a question Mourdock for months has said needs to be answered.

"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," Mourdock said.

"From the beginning, I have consistently stated that the federal government must follow the law, and that is why the appeal was filed." * * *

If the Supreme Court decides to hear the case, Indiana could recover some lost money, said Jim Holden, chief deputy and general counsel for the Indiana Treasurer's Office.

If the Supreme Court sides with Indiana, it could send the matter back to a bankruptcy court to determine how much money could be recovered and how that would work.

The state argues that a provision in U.S. bankruptcy code known as Section 363 was used in the Chrysler case as an end-around to avoid typical Chapter 11 bankruptcy reorganization, which provides more protection for creditors.

Indiana is asking the Supreme Court to determine whether Section 363 may be used that way in the future.

"It's being used more and more as a kind of back door for this kind of thing — to wipe out creditors' claims and reorganize," Holden said. "Our position is that's too much of a stretch."

Posted by Marcia Oddi on September 6, 2009 12:13 PM
Posted to Indiana Government

Ind. Decisions - "Judge will remain in Jay County murder cases"

The August 26th NFP decision in Thomas A. Smith, Michael J. Heffern, Tina L. Whiting, Addison R. Pijnapples, and Roderick Berry v. State of Indiana is the subject of a story today in the Muncie Star-Press:

PORTLAND — Judge Brian Hutchison will continue to preside over five local murder cases, the Indiana Court of Appeals has ruled.

In an Aug. 26 decision, the appeals court rejected change-of-judge motions filed by attorneys for Roderick Berry, Michael P. Heffern, Addison Pijnappels, Thomas A. Smith and Tina L. Whiting, all charged with murder and robbery in the 2008 slaying of Shawn M. Buckner.

The 28-year-old Portland man's body was found last Sept. 10 in a shallow grave in northeastern Delaware County. * * *

The defense attorneys had claimed Hutchison had displayed bias against the murder defendants, first in comments he purportedly made to a Portland attorney and then during a probable cause hearing.

Hutchison's decision to remain on the cases was upheld by the state appeals court, which noted that requests that the judge disqualify himself were based in part on "second-hand hearsay."

Smith and Pijnappels, who are married, are 20-year-old Portland residents. Whiting, 37, and Heffern, 30, are also from Portland, while Berry, 21, is from Dunkirk.

Trial dates have not been set. The defendants have also requested that their trials be moved out of Jay County, and Whiting and Berry have filed documents necessary to pursue an insanity defense.

Here is the ILB summary of the decision.

Here is a list of earlier ILB entries mentioning Judge Brian D. Hutchison.

Posted by Marcia Oddi on September 6, 2009 10:53 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "The defense and prosecuting attorneys were present, but the judge was not, due to personal reasons"

That line is far down in this story by David Stewart of the Bloomington Alternative about a caravan of people journeying "down to Petersburg for the initial court hearing for I-69 activists Hugh Farrell and Gina "Tiga" Wertz." More quotes:

The pair were scheduled to appear in Pike County Circuit Court, where each faced charges of one felony charge of corrupt business influence (racketeering), two counts of misdemeanor conversion and two counts of misdemeanor intimidation for protests against new-terrain I-69.

"We're going down to show support for Hugh and Tiga, and also to show the Pike County Court that people are paying attention," Myke Luurtsma said. * * *

Smith agreed, "We here today are all activists who are serious about wanting to stop the construction of I-69. We are speaking out, just as Hugh and Tiga spoke out, in opposition to I-69, and we don't plan to just sit back and let it happen. Others are speaking out and acting as well. The state is taking a forceful and draconian approach. The state feels they have to crush this because the opposition is big, and there is resistance. The state is trying to alienate the activist community from those who are also against I-69, but who are not taking an activist approach. Their strategy is to create a wedge."

Smith explained that, "After the court hearing, we are going to visit landowners along the Pike County planned corridor of I-69, knocking on doors, giving information about their rights of eminent domain, handing out a DVD of comments that we have compiled from people who are against I-69, giving people the Web site." * * *

People arrived on foot, in cars and on bicycles. Even at that early hour of the morning all were cheerful and energetic. There was a lot of laughing as people clustered in small groups and came together in a big circle to plan the car-pooling. At 6:45 a.m., 27 people entered five cars and caravanned.

The next day, Lydia McDonald explained what happened in Pike County Court.

"Well, it all ended up being uneventful," she said. "The defense and prosecuting attorneys were present, but the judge was not, due to personal reasons. So, there was no proceeding after all! The lawyers met privately while all the supporters waited in the Courthouse. Afterwards, at approximately 10 a.m., one of Hugh's lawyers, Rick Kammen, spoke with the crowd outside the Courthouse. He stated that the proceeding did not occur due to 'crossed signals' and was both 'our mistake and theirs.'"

Kammen stressed that he did not feel it was done purposefully or in response to the large number of supporters who showed up. Motions for dismissal were supposed to be heard but instead will be taken under advisement and arguments will be heard at the next court date, which was set for Oct. 20 at 10 a.m. The lawyers also set a tentative trial date beginning April 19, 2010.

Kammen also noted that "if the road is a dead issue, the case is a dead issue," implying that these outlandish legal tactics are being used to intimidate others from opposing new terrain I-69.

Posted by Marcia Oddi on September 6, 2009 10:23 AM
Posted to Indiana Courts

Ind. Courts - "Attorney charged in hit and run: Deputy public defender faces misdemeanor"

That is the headline to this story dated Sept. 4 in the Kokomo Tribune. Scott Smith reports:

Howard County Deputy Public Defender Stephanie C. Doran was formally charged Thursday with a misdemeanor in connection with a May 12 hit-and-run case.

Special Prosecutor Barry Brown alleged Doran, 41, was behind the wheel of a black SUV when she plowed into the back of farm equipment on Dixon Road.

Local restaurant owner Tom Trine suffered a slight injury in the accident, which damaged a corn planter he was towing.

According to a probable cause affidavit filed by Brown in Howard Superior 3, Doran talked briefly with Trine’s son, Jesse Trine, at the accident scene.

Instead of waiting for police to arrive, however, the Trines said Doran left the scene. * * *

Doran was located because Trine’s brother, who happened on the scene by coincidence, followed the black SUV to a residence near 250 West and 450 North.

That turned out to be Doran’s residence, but it took Howard County sheriff deputies obtaining a search warrant before the black SUV could be inspected and subsequently impounded. * * *

Even though Trine was slightly injured, the special prosecutor didn’t find cause to charge Doran with the more serious offense of leaving the scene of a personal-injury accident.

She was charged with leaving the scene of a property-damage accident, a misdemeanor.

Howard Superior Court 3 Judge Doug Tate issued a summons for Doran to appear in court, although a date hadn’t been set Friday. She will not be arrested.

And although Tom Trine was the victim in the crash, Friday he seemed almost apologetic that the charge had been filed.

“It is what it is. It just so happens that she’s an attorney, and of course, everybody wants to weigh in on the situation,” he said. “The sheriff is the sheriff, and the prosecutor is the prosecutor, and whatever they’re going to do, they’re going to do.”

Posted by Marcia Oddi on September 6, 2009 10:19 AM
Posted to Indiana Courts

Ind. Courts - LaPorte County judge threatens attorney with jail

Alicia Ebaugh reported Sept. 4th in the Michigan City News-Dispatch:

La Porte Superior Court 1 Judge Kathleen Lang threatened Thursday to have a murder suspect's attorney arrested if she fails to come to court one more time.

For the second week in a row, Shawn D. Kelley's defense attorney, Logan-Tinae Thomas, did not show up for Kelley's status hearing.

"Where is Ms. Thomas?" Lang sternly asked.

"I spoke with my parents, and they said they talked to her about last week. She told them she didn't know she was supposed to be here," Kelley replied. "I don't know where she is today." * * *

Kelley switched attorneys at the end of January because, he told the court, James O. Cupp, his original attorney, had not been returning his phone calls and e-mails as quickly as he would like. That switch has caused enough delays in the case, Lang said - she doesn't want any more of them.

"If she doesn't appear next week, a bench warrant will be issued for her arrest," Lang said. "You are charged with murder, Mr. Kelley, you need to have a jury trial, and we've got to get this going."

Deputy Prosecutor Michael Bergerson said Thomas has not contacted him about Kelley's case since she entered her initial notice of appearance in February. Kelley's trial was set for Nov. 2 but will likely be delayed until late December, Lang said.

Thomas was formerly a deputy prosecuting attorney in Lake County. She opened her own firm, Thomas Law Office, in Michigan City in July 2006, according to her Web site. Thomas did not return phone calls to her office Thursday.

Posted by Marcia Oddi on September 6, 2009 10:11 AM
Posted to Indiana Courts

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" [Updated]

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.

[Updated 9/6/09] Indianapolis attorney Bill Groth writes:

Thanks for the report about the long-delayed decision in the City of Indianapolis v. Annex Books case.

Judge Easterbrook writes, four years after the Court heard oral argument, that to justify its restrictions on adult book establishments Indianapolis must come forward with "evidence. Lawyers' talk does not suffice."

From my standpoint, nearly two years after the Supreme Court heard oral argument in the voter ID case, I only wish the Court had held the State of Indiana to the same quantum of proof to justify Indiana's photo ID requirements for voting and required it to prove rather than simply assuming the existence of imposter voting.

I've made this observation before, but Annex Books is yet another reminder that the federal constitution has now been construed by the Roberts Court in a manner that offers greater protection from governmental restrictions for adult entertainment activities than it does for voting. I have to believe those who drafted the Bill of Rights and the post-Civil War amendments could not have intended this result.

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.

More from the story:

The commission's decision affirmed an administrative law judge's 2007 finding, which the city had appealed, and awarded Linehan $200,000 in compensatory damages for emotional distress; $129,600 for about two years of lost pay, reduced from the 2007 decision by $34,000; and $62,000 to cover Linehan's attorneys fees and costs.

Few cases result in such high damage awards, [Jon Mayes, the city's chief litigation counsel] said. Federal law limits compensatory damages alone to $300,000, and he called $35,000 a more typical "rule of thumb."

But the 7th U.S. Circuit Court of Appeals in Chicago often reduces EEOC awards even more, Mayes said, making a new appeal attractive.

Here is a copy of the 19-page EEOC opnion, dated Aug. 25, 2009.

Posted by Marcia Oddi on September 4, 2009 01:53 PM
Posted to Courts in general | Indiana Government

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.
Advertisement

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