Tuesday, October 06, 2009

Law - AG Holder on the stalled Dawn Johnsen nomination

Updating this long list of ILB entries on IU Law professor Dawn Johnsen's long pending nomination to the Office of Legal Counsel, The Blog of Legal Times reports this afternoon:

Attorney General Eric Holder Jr. told reporters today that the nomination of Dawn Johnsen to run the Office of Legal Counsel has been pending for "far too long" and that he is confident Johnsen will be confirmed.

Holder, addressing more than two dozen reporters in a conference room at the Justice Department, said he is looking forward to working with Johnsen on the 5th floor of Main Justice. Johnsen was nominated in January.

Posted by Marcia Oddi on October 6, 2009 04:46 PM
Posted to General Law Related

Ind. Courts - More on "Easterbrook Slams CD Illinois Judge For Allowing Cameras in the Courtroom"

Updating this ILB entry from Oct. 2nd, Ameet Sachdev, in the Chicago Law Blog, writes:

The controversy may stir more debate about a ban some think is outdated. In spite of the rapid advancement of technology that gives the public uncensored access to events before unseen, the media still rely on artists’ rendering to capture trial action or arguments at the U.S. Supreme Court.

Michael Monico, a Chicago lawyer who is president of the 7th Circuit Bar Association, said it may be time for the jurisdiction to take a new look at the rules prohibiting cameras.

“I thought they would be intimidating to witnesses,” Monico said. “But my views have changed over the years.”

Supreme Court Justice David Souter, one of the strongest opponents of cameras in the courtroom, once said “I think the case is so strong that I can tell you the day you see a camera come into our courtroom it’s going to roll over my dead body.”

With Souter’s retirement this year, some say Congress has a chance to lift the ban. “Several state courts televise trials without problems,” said Steven Lubet, an expert on trial strategy and legal ethics at Northwestern University School of Law. “All of the predicted problems turned out to be illusory. People thought lawyers would grandstand or the public would misunderstand but none of that happened.”

In Illinois, cameras are not allowed in trial courts. But state appellate courts, including the Supreme Court, have allowed video cameras and audio recording devices upon request since 1985. In 2008, the Illinois Supreme Court began posting video recordings of oral arguments on its Web site. A court spokesman said he’s not aware of any complaints about the recordings.

Easterbrook acknowledged the ongoing debate about the role of cameras in the courtroom in his Sept. 28 memo on the McDade matter, but he did not to take sides.

“No matter what one makes of these contentions, once the Judicial Conference of the United States and Judicial Council of the Seventh Circuit have adopted a policy, a judge must implement it without regard to his own views,” Easterbrook wrote.

Posted by Marcia Oddi on October 6, 2009 01:26 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Annexation of Certain Territory to City of Muncie, Indiana v. Certain Halteman Village Section I and Brewington Woods Landowners, a 17-page opinion, Chief Judge Baker writes:

Appellant-respondent City of Muncie (Muncie) appeals the trial court's order granting the remonstrance petitions of appellee-petitioners (collectively, the Landowners) and declaring Muncie's Ordinance Numbers 11-07 and 12-07 (collectively, the Ordinances) to be invalid. Muncie argues that the trial court erred by finding that it failed to meet its statutory burden contained within Indiana Code section 36-4-3-13 and by finding that the Landowners met their burden contained within the same statute. Finding that Muncie met its burden and the Landowners failed to meet theirs, we reverse. * * *

In sum, we have found that Muncie met its statutory burden as set forth in Indiana Code section 36-4-3-13, meaning that the trial court must order the annexation to take place unless the Landowners prove that they are entitled to relief under subsection 13(e). We have also found that the Landowners failed to prove that the annexation would have a significant financial impact or that 65% of them continued to oppose the annexation; therefore, the trial court erred by granting the remonstrance petition and declaring the Ordinances to be invalid.

Term. of Parent-Child Rel. of B.M.; M.M. & D.S. v. IDCS - "Appellant-respondent M.M. (Father) appeals the involuntary termination of his parental rights as to his minor son, B.M. Specifically, Father argues that the termination order must be set aside because the trial court failed to consider placing B.M. with his sister in lieu of termination. Concluding that the trial court properly terminated Father's parental rights, we affirm."

In Douglas Wolff v. State of Indiana , an 8-page opinion, Judge Vaidik writes:

Douglas Wolff pled guilty to criminal recklessness for firing a shotgun in the direction of his victim. Wolff’s father, the victim’s employer, thereafter fired the victim. Wolff was ordered to pay restitution in the amount of $12,789.00 to the victim for his lost earnings. Wolff now appeals the restitution order. Though Wolff’s actions may have indirectly led to the victim’s termination and consequent loss of earnings, Indiana Code § 35-50-5-3(a)(4) requires a direct causal connection. Because there is no direct and immediate link, it is simply too attenuated to hold Wolff responsible in a criminal proceeding for Wolff’s father’s actions in firing the victim. We therefore reverse.

NFP civil opinions today (2):

Clyde Piggie v. Alan Finnan (NFP) - "Appellant/Plaintiff Clyde Piggie appeals from the trial court’s refusal to file his civil rights complaint, pursuant to Indiana Code section 34-58-1-2 (2008), against Appellees/Defendants Alan Finnan and sixteen others, all apparently employees and officials of the Department of Correction. Concluding that Piggie has not established that he has exhausted his administrative remedies, we affirm."

Term. of Parent-Child Rel. of R.C., et al; T.C. v. IDCS (NFP)

NFP criminal opinions today (6):

Kenneth Winston v. State of Indiana (NFP)

William Jerde v. State of Indiana (NFP)

Bradley Combs v. State of Indiana (NFP)

Philip McCollum v. State of Indiana (NFP)

Dejuan Hurt v. State of Indiana (NFP)

Derek Anthony Lawson v. State of Indiana (NFP)

Posted by Marcia Oddi on October 6, 2009 01:04 PM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Sex offenders vacating LaSalle Hotel "

Don't miss this story by Susan Brown in the NWI Times. Some quotes:

HAMMOND | Law enforcement officers have notified 12 registered sex offenders they no longer can reside at the LaSalle Hotel on Hohman Avenue in downtown Hammond.

LaSalle owner Louis Karubas on Monday confirmed last Wednesday's visit to the hotel by Lake County Sheriff's Department Police Lt. Brian Marsh; Yvette Salinas, parole district supervisor with the Indiana Department of Correction; and parole officer John Larson.

But it was a nearby bike trail maintained by the Hammond Parks & Recreation Department -- not the close proximity of the city's proposed new charter school -- that law enforcement officers gave as their reason for ordering the sex offenders to vacate the hotel.

A re-measurement of the distance between the bike trail and the hotel had found the distance to be 780 feet. State law prohibits certain sex offenders from living or working within 1,000 feet of public parks and schools. * * *

Though the DOC's Garrison said he had been told the men would be gone by this Saturday, Karubas said he asked everyone to prepare to leave sooner.

"I'm getting everyone out by Wednesday," Karubas said. "That's all I can say."

Karubas said he had never been contacted by city or school officials about there being any concerns about the hotel.

Since word spread recently of his accepting DOC parolees who had been charged with sex offenses, Karubas said he has received four offers to buy the hotel. He declined to identify the potential buyers. "I don't want to sell now," he said of the hotel he has operated for 40 years.

He questioned why the organizers of the charter school had never contacted him.

"I was never told anything about the charter school project ever or anything else for downtown," Karubas said.

Neither was Rick Sloan, owner of the Good Stuff Store, a gift and novelty shop next door to the hotel. Sloan confirmed his shop specializes in adult items commonly seen at bachelor and bachelorette parties.

The store, which also sells standard giftware such as music boxes and picture frames, has been operating at the site since 1935, Sloan said.

City consultant Tom Dabertin, the spokesman for the charter school project and a board member, said he had no personal knowledge of the hotel being found too close to park property, nor did he have knowledge of the adult material sold by Good Stuff.

Posted by Marcia Oddi on October 6, 2009 12:49 PM
Posted to Indiana Government

Ind. Law - "Re-evaluation of all Indiana solid waste management districts sought"

Bob Kasarda reports today in the NWI Times in a long story that begins:

Twenty years after sponsoring legislation creating solid waste management districts in Indiana, state Sen. Beverly Gard, R-Greenfield, has some big concerns with the size and approach of the operations that have taken shape in Lake County.

"They are totally out of control," she said.

Gard is calling for a statewide re-evaluation of the recycling districts to be undertaken by an interim study committee next summer.

Gard, who chairs the Senate Energy and Environmental Affairs Committee, said the local solid waste districts were created with the goal of reducing the amount of garbage headed to landfills at a time when disposal space was critically low. She said she intended for the districts to facilitate recycling, which was a fledgling effort at the time, and to carry out education on waste reduction.

She said she never envisioned a district growing as large and as wealthy as the one in Lake County.

The Lake County Solid Waste Management District is the largest of the 70 districts across the state, in terms of its nearly $5.2 million annual budget. That cash is generated mostly by a property tax, according to Lance Hodge, executive director of the Association of Indiana Solid Waste Management Districts.

Marion County, which already had a system in place decades ago, was not required to form a solid waste district, according to the Indiana Department of Environmental Management.

The Lake County district has eight full-time employees, including a full-time attorney paid $84,437 a year, said Executive Director Jeff Langbehn, who receives an annual salary of $102,129 and a take-home vehicle.

He defended his salary by pointing out he is an attorney and has 20 years of experience.

The Porter County district, by comparison, operates with a budget of $900,147, generated mostly by an annual fee of $13 per household. It has six full-time and four part-time employees, and a director who is paid $60,075 and afforded a take-home vehicle.

Posted by Marcia Oddi on October 6, 2009 12:44 PM
Posted to Indiana Law

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

In U.S. v. Carson (SD Ind., Judge McKinney), a 14-page opinion, Judge Wood writes:

On appeal, Carson’s primary argument is that evidence critical to his conviction should have been suppressed because probable cause did not support the issuance of the search warrant. In the alternative, he asserts that the affidavit supporting the application for the warrant contained material false statements. Finally, he argues that his confession should have been suppressed because the large quantities of drugs and alcohol that he ingested prior to his arrest and confession invalidated his waiver of his Miranda rights. We conclude that the district court correctly refused to suppress both the evidence and the confession, and we thus affirm its judgment.

Posted by Marcia Oddi on October 6, 2009 12:38 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court issues anonymous disciplinary ruling

In the Matter of: Anonymous, issued Oct. 5th, is a 4-page per curiam opinion:

We find that Respondent engaged in attorney misconduct by failing to surrender to a former client papers to which he was entitled. * * *

The Commission contends Respondent should receive a public reprimand, arguing that Respondent's misconduct was intentional, that Client's incarceration made him a vulnerable victim, and that Client's interests were harmed by not receiving the discovery materials when requested. The Court, however, notes in mitigation that there was no complaint about the quality of Respondent's representation, that there is no showing of any actual legal harm to Client, and Respondent has no prior disciplinary record in over 25 years of practice. On balance, we conclude that a private reprimand is sufficient under the circumstances of this case.

The Court concludes that Respondent violated Professional Conduct Rule 1.16(d) by not providing Client a copy of the State's responses to his discovery request after Client requested it in his February 2, 2007, letter. For Respondent's professional misconduct, the Court imposes a private reprimand.

Posted by Marcia Oddi on October 6, 2009 12:33 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Still more on: Marion County Traffic Court in the news today

It is like siting a landfill or a nuclear plant. Updating this ILB entry from June 29th, quoting a story by Jon Murray in the Indianapolis Star that began on the hopeful note:

Marion County's second try at finding a new site for its busy traffic court and a satellite probation office could receive a crucial green light tonight.

Last night another try failed, according to this story by Francesca Jarosz in the Star, headed "Council vote turns back relocation of traffic court: Resident opposition fuels rejection of move to Northwestside." Some quotes from the longish story:

The City-County Council Monday rejected a second proposal to relocate a county traffic court and satellite probation office, forcing officials to start over with the search for a site to alleviate crowding and parking problems at the state's busiest court.

The council voted 15-10 against the bid to move the traffic court from a cramped space inside a police training building on the Far Eastside to a 25,000-square-foot former department store near West 38th Street and High School Road.

Some council members said they heeded complaints from residents of the area, who worried about convicted criminals checking in at the probation office that would replace a smaller office in the 3500 block of Lafayette Road. In the spring, similar concerns from neighbors about the probation office halted a proposal to move the facility to a shopping center near Lafayette Square Mall.

Judge Bill Young, who presides over Marion County's traffic court, said he and other court staff will begin their third -- and, he hopes, final -- attempt at finding a site. The traffic court lacks adequate parking and is intensely crowded at its current location.

Or is it fourth?

Posted by Marcia Oddi on October 6, 2009 09:40 AM
Posted to Indiana Courts

Courts - "Justices Decline to Hear Some 2,000 Cases "

Adam Liptak of the NY Times today details some of the cases refused cert yesterday by the SCOTUS. His column begins:

WASHINGTON — The Supreme Court on Monday refused to hear appeals concerning the Pledge of Allegiance, the Confederate flag and license plates bearing the words “Choose Life.”

In those and some 2,000 other cases that accumulated during the court’s summer break, the court let stand rulings from lower courts without comment. * * *

For at least the fifth time, the Supreme Court declined to wade into the heavily litigated question of whether state motor vehicles departments may or must offer specialty license plates that say “Choose Life.” In declining to hear Choose Life Illinois v. White, No. 08-1283, the court let stand a decision that Illinois was not required to offer “Choose Life” plates along with some 60 other styles because it had “excluded the entire subject of abortion from its specialty plate program” and so was not taking sides in the abortion debate.

Posted by Marcia Oddi on October 6, 2009 09:34 AM
Posted to Courts in general

Courts - Still more on "Justices Asked to Weigh Free Speech vs. License Plates"

Updating this ILB entry from Sept. 14th, which discussed the likelihood of the 7th Circuit decision in Choose Life Illinois, Incorporated, et al. v. White, Illinois Secretary of State being granted cert by the SCOTUS, the Court yesterday denied the petition.

See this ILB entry from April 27th for background, including this NYT quote:

Illinois, on the other hand, has refused to issue a “Choose Life” plate, a decision that was challenged by a group called Choose Life Illinois, which promotes adoption. The federal appeals court in Chicago upheld Illinois’ refusal in November, and this month the losing side asked the Supreme Court to return to the question of what the constitution has to say about speech on license plates.

Today Dave McKinney writes in the Chicago Sun-Times under the headline "Abortion foes fail in bid for 'Choose Life' plate loses: High court refuses to hear case meant to force state's hand":

SPRINGFIELD -- Those opposed to abortion won't have a chance anytime soon to buy "Choose Life" license plates for their vehicles now that the U.S. Supreme Court declined Monday to weigh in on the matter.

The nation's high court refused to hear a request from an anti-abortion group, Choose Life Illinois Inc., to force the state to issue "Choose Life" license plates.

The court left in place a federal appeals ruling that Illinois officials were within their rights in trying to keep viewpoints on abortion off Illinois license plates.

After gathering 25,000 signatures in support, the group pressed Secretary of State Jesse White to allow the creation of the anti-abortion-themed specialty license plate, following the lead of surrounding states with "Choose Life" plates. * * *

The group also might attempt to bring the issue before the state Legislature after previously being unable to persuade lawmakers to approve "Choose Life" plates, which are now permitted in 20 other states, including Indiana and Missouri.

Posted by Marcia Oddi on October 6, 2009 09:21 AM
Posted to Courts in general | Ind. (7th Cir.) Decisions

Courts - Still more on "Astor Trial (Finally!) Heads to the Jury"

Updating this ILB entry from Oct. 4th, John Eligon and Matthew R. Warren of the NY Times report:

The judge overseeing the trial of Anthony D. Marshall, the son of Brooke Astor, the legendary New York society matriarch, exhorted the jury to “hang in there” on Monday afternoon, after the jury sent the judge two notes suggesting that it was struggling to reach a verdict.

The notes, and the judge’s remarks, suggested the possibility of a deadlock, although the jurors, who are to resume deliberations on Tuesday, could yet reach a verdict in one of the city’s most-watched trials in recent memory. * * *

The trial has lasted longer than had been expected. The jury of eight women and four men sat through more than 19 weeks of testimony and arguments in State Supreme Court in Manhattan. Mrs. Astor, whose fortune was estimated at more than $180 million, died two years ago at 105.

Posted by Marcia Oddi on October 6, 2009 09:16 AM
Posted to Courts in general

Ind. Courts - "St. Joseph County judge orders liquidation of Gabriele's assets"

Updating earlier ILB entries on the Gabriele estate case, Alicia Gallegos of the South Bend Tribune reports today in a story that begins:

SOUTH BEND — Some assets of Philip Gabriele's estate will soon be liquidated in order to pay for outstanding bills and legal fees associated with the late doctor's case, according to a judge's order.

The decision Friday comes after the newly appointed executor of Gabriele's will — 1st Source Bank — filed an emergency petition requesting the liquidation.

According to the petition, bank administrators have completed an inventory of the Gabriele estate, finding that the doctor's assets are worth a total of $2.8 million.

Despite the substantial value, the petition says not enough liquidity exists to pay current administration expenses including:

"The ordinary expenses associated with the wind down of the business and both appraising and preserving the Estate assets, and the expenses of defending for the benefit of the Estate, the federal case pending against Gabriele Eye Institute."

The criminal case against the company that was owned by Gabriele and his wife Marcella, The Gabriele Eye Institute, is set to go forward Oct. 20 despite the absence of its owners.

Philip and Marcella Gabriele were found dead in an apparent murder-suicide in June just hours before they were to appear before a judge on a 15-count criminal indictment involving health care fraud.

Shortly after their deaths, Marcella's brother, Jon Alex Dawson, filed a lawsuit alleging that Philip 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.

Posted by Marcia Oddi on October 6, 2009 09:11 AM
Posted to Ind. Trial Ct. Decisions

Ind. Law - David J. Allen, 74, Attorney and Counselor to Governors, dies

When I first met Dave Allen, he was counsel to Governor Roger D. Branigin, and seemed very old and wise, although it turns out he was about 30 at the time. He had just written a handbook, titled "New Governor in Indiana: The Challenges of Executive Power." In the preface, Dave describes it as "a practical handbook designed to serve as a ready reference for a new Governor and his staff." I just pulled out my copy, I'd love to post it online, but it is copyrighted by Indiana University. Through the years, Dave remained a wise counselor to those he served, governors and political leaders. The Indianapolis Star obituary is available here.

Posted by Marcia Oddi on October 6, 2009 08:51 AM
Posted to Indiana Law

Monday, October 05, 2009

Ind. Courts - "Governor Appoints New Madison Circuit Court Judge"

Joe Ulery reports for WIBC:

Governor Mitch Daniels has appointed a new judge to replace a Madison County judge who resigned amid an ethics investigation.

39-year-old Rudolph Pyle III is beginning his first week at his new job as Circuit Court Judge.

Pyle had been deputy prosecutor in Madison County since 2002. He also used to be an Indiana State Trooper.

Pyle, a Republican, replaces 71-year-old Fredrick Spencer, who had been judge for 26 years.

Spencer resigned last month after claims that he decided a murder suspect's sentence before the end of the case.

Pyle will finish out Spencer's term, which expires at the end of next year.

Posted by Marcia Oddi on October 5, 2009 02:52 PM
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending October 2, 2009

Here is the Clerk's transfer list for the week ending October 2, 2009. It is six pages long.

Four transfers was granted last week:

• Chawknee P. Caruthers v. State -- No. 46S05-0910-CR-431 - a 2-1 opinion, see ILB summary from July 15th here, 2nd case. Also July 16th entry headed "The 2008 murder conviction of Chawknee Caruthers, who was given a 100-year prison sentence, was reversed Thursday."

• Luis E. Duran v. State -- No. 45S03-0910-CR-430 - a 2-1 opinion, see ILB summary from July 23rd here, 6th case. From the dissent:

  I appreciate the majority's careful attention to precedent in reaching the result it has. However, I am deeply troubled by testimony indicating that police officers believe that when the resident of a dwelling does not open a door, after having simply heard the announcement that “police” are outside, the officers may kick in that door to gain entry. My reading of the facts presented to the trial court in this case lead me to strongly believe that Duran's motion to suppress should have been granted.

• Myron M. Owens v. State -- No. 49S02-0910-CR-429 - see ILB summary from July 7th here, 4th case. A quote:

  The State presented sufficient evidence to establish that Owens delivered cocaine to the C.I. and that such transaction occurred within 1,000 feet of the Daycare Center. The trial court did not err in applying the habitual offender enhancement to Owens’s sentence for dealing in cocaine.

• State v. Robert Richardson -- No. 49S02-0910-CR-428 - see ILB summary from May 22nd here, 2nd case. A quote:

  Here, after the initial seatbelt stop, Officer Eastwood noticed a very large, unusual object in Richardson's pocket. We do not think it unreasonable for her to have merely asked Richardson what this object was. We therefore conclude that Officer Eastwood's inquiry regarding the large, unusual object in Richardson's pocket did not exceed the scope of police behavior permitted under the Seatbelt Enforcement Act, Article 1, Section 11, or the Fourth Amendment.

__________
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 October 5, 2009 01:42 PM
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)

For publication opinions today (3):

In Adoption of E.L.; R.J. v. V.N. , a 13-page opinion, Judge Robb writes:

R.J., the putative father of E.L., filed a paternity petition on his own behalf and on behalf of E.L. to establish his paternity of E.L. The trial court, after consolidating the paternity petition with a pending adoption matter, dismissed the paternity petition. R.J. appeals and raises two issues, which we consolidate and restate as whether the trial court properly dismissed the paternity petition. Concluding dismissal was proper with respect to co-petitioner R.J. but improper with respect to co-petitioner E.L., we affirm in part, reverse in part, and remand. * * *

We acknowledge the apparent anomaly that a putative father barred by one statutory section from petitioning for paternity on his own behalf may nevertheless succeed in filing, under a different statutory section, substantially the same petition as next friend on behalf of the child. Yet where two statutes appear inconsistent in some respect, we must give effect to both if possible. B.W., 908 N.E.2d at 592. Moreover, the general assembly, when revising the adoption and paternity statutes in 1997, did not alter the provision allowing a child to petition for paternity by next friend, but instead recodified it. Compare Ind. Code § 31-6-6.1-2(a)(4) (1996), with Ind. Code § 31-14-5-2 (1997). The general assembly did so notwithstanding the line of cases that, since 1992 when we decided G.D.H., 599 N.E.2d 237, have permitted a parent barred from petitioning for paternity on his or her own behalf to file a paternity petition as next friend on behalf of the child. See id. at 241. We see no reason, therefore, to depart from these precedents.

Conclusion. The trial court properly dismissed the paternity petition as filed by R.J. on his own behalf but erred in dismissing the petition as filed on behalf of E.L. The trial court’s dismissal is affirmed with respect to co-petitioner R.J. and reversed with respect to co-petitioner E.L., and the case is remanded for further proceedings consistent with this opinion.

Andrew Prairie v. State of Indiana - "Andrew G. Prairie appeals his conviction of Identity Deception, a class D felony, presenting the following restated issue for review: Did the trial court abuse its discretion in admitting evidence pursuant to Indiana Evidence Rule 404(b)? We affirm."

Jeffrey Phelps v. State of Indiana - "Based on the foregoing, we conclude that the trial court's determination that Phelps is a sexually violent predator is not supported by sufficient evidence; Phelps waived his claim of error caused by the State's cross-examination of his statement at sentencing, and the trial court abused its discretion when sentencing Phelps. Additionally, we conclude that Phelps' sentence is inappropriate when considering the nature of his offenses and his character, and we revise his sentence so that he serves an aggregate sentence of four years in the Department of Correction."

NFP civil opinions today (1):

Estate of Nathaniel Kappel v. William Kappel, Judith Kappel, and Mark Kappel (NFP) - "Construing the designated evidentiary material in the light most favorable to the Estate, we conclude that there remain genuine issues of material fact as to the entitlement of the proceeds of the State Life policy. As set forth above in detail, there are numerous facts in dispute and the undisputed material facts are capable of supporting conflicting inferences with regard to the issue of who is entitled to the proceeds of the State Life policy. We therefore conclude that the trial court erred in granting summary judgment in favor of William and Mark."

NFP criminal opinions today (4):

Gary M. Thompson v. State of Indiana (NFP)

Steven M. Johnson v. State of Indiana (NFP)

Nicholas Liss v. State of Indiana (NFP)

Ronald Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on October 5, 2009 01:12 PM
Posted to Ind. App.Ct. Decisions

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

Updating this Sept. 24th ILB entry re the Supreme Court's call for amicus briefs in the case of Anthony Malenchik v. State relating to the use of "scoring models," where amicus briefs of the Indiana State Bar Ass'n, the Public Defender of Indiana, and the Indiana Judicial Center were posted, the ILB has now obtained and posted copies of two additional amicus briefs, plus the supplemental briefs of the parties:

• Public Defender Council

• Prosecuting Attorneys Council

• Appellant's Supplemental Petition to Transfer

• Supplemental Response to Petition to Transfer

Posted by Marcia Oddi on October 5, 2009 11:03 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - State lets billboard inventory slide, may lose federal funds

A long story on this by Jon Seidel today in the Gary Post-Tribune. Here are a a few quotes:

[T]he Indiana Department of Transportation's central office in Indianapolis has records of just 75 billboards along the interstates running through Lake and Porter counties. That's less than one billboard per interstate mile.

INDOT says there are 12 permits for billboards along Interstate 65 in Lake County, for example, but a Post-Tribune count found more than 60 along the same route.

The state's lack of an up-to-date billboard inventory might have let myriad outdoor advertising problems develop over several years or even decades.

Those issues were highlighted in an unflattering Federal Highway Administration report in 2008. The agency threatened to withhold $90 million from Indiana under a provision of the Highway Beautification Act because of the state's perceived lack of billboard control.

Now, in addition to addressing the Federal Highway Administration's concerns, an INDOT official is trying to figure out how to update the billboard inventory to prevent further trouble. It could cost more than $2.5 million, though, and it isn't clear where that money will come from.

"Had an active inventory been in place," the Federal Highway Administration wrote, "many of the issues discussed in this report may have been avoided." * * *

Robert Demuth, INDOT's central office permit manager who joined the agency last year, said the blame for Indiana's billboard mess can't be placed at any one doorstep.

"There's no smoking gun, no one person, no one party, no one agency, no one group of outdoor advertisers," Demuth said.

Instead of pointing fingers, Demuth said he is focused on complying with the Federal Highway Administration's recommendations. That could mean the removal of some billboards across the state. The cost of that work will depend on each individual situation.

Demuth is also trying to figure out how to pay for a one-time, comprehensive inventory of Indiana's billboards to prevent future problems. That project would do more than give the state a count of its billboards. It would provide a detailed record of what exists where, and whether it conforms to federal and state standards.

"If we don't get our hands on what the good inventory is," Demuth said, "we will not regain effective control. It's so key."

Posted by Marcia Oddi on October 5, 2009 10:52 AM
Posted to Indiana Government

Ind. Law - "Parks off limits to sex offenders"

Rebecca S. Green of the Fort Wayne Journal Gazette has an overview today on ordinances banning sex offenders from parks:

There are seven public parks in the city of Garrett and just about that many registered sex offenders living in the small DeKalb County city.

And to Police Chief Rex Harpel’s knowledge, there has never been any trouble with sex offenders in those city parks, but as of August, they are no longer welcome in the parks.

In fact, they will be fined $100 the first time they are caught inside the parks and $200 on subsequent offenses, according to the ordinance passed this past summer.

“I don’t anticipate having any problems with it,” Harpel said.

It was time to redo the park ordinance for the city, population 5,681 in 2008, such as setting closing times and banning smoking. Harpel said he wanted to get the sex offender ban in there.

“We want the parks to be enjoyable for everybody,” he said.

Garrett’s is not the only ordinance of its kind in Indiana, though it may be somewhat unusual in the area. And the bans have survived legal challenges to their constitutionality. * * *

Indiana University law professor Craig Bradley said there is no question the state can, by law, place additional limitations on sex offenders listed on the state’s registry, maintained by the Indiana Criminal Justice Institute.

Whether cities and towns can do it is another question, he said.

“Whether municipalities can do it raises issues of deprivations of liberty,” Bradley said.

The state can make additional limitations because it is the state that establishes punishments for crimes, such as prison time and the registry, he said.

Keeping someone from entering a public park could be included in that, all rolled up as a punishment, he said.

Bradley has problems with municipalities doing it because it is not their role in the government, though they can justify such bans under the umbrella of controlling their own parks and deciding who can come and go and when.

Ken Falk, legal director for the American Civil Liberties Union of Indiana, said the issue is whether the ban is intended as a form of punishment.

In one legal challenge heard by the Indiana Court of Appeals, the city of Plainfield’s ordinance was held up as constitutional.

The court ruled that while the ordinance was certainly restrictive, it was related to the non-punishment goal of promoting public safety.

Falk appealed that ruling to the Indiana Supreme Court, which declined to hear the case this summer.

In another case, this one challenging the city of Jeffersonville’s ordinance, a part of the law was struck down because the challenge came from a convicted sex offender no longer required to register.

In that case, the appellate court ruled that while the bans have been found to be constitutional, to apply them to people who are no longer required to register – even though their name appears as part of the record forever – is punishment after the fact.

Falk again represented the sex offender in that case, though this time it was the city that challenged the appellate court’s ruling and asked the Indiana Supreme Court to review.

Again the state’s highest court declined.

And with no ruling by the Supreme Court in either case, Falk said the state is left with something less than a definitive position on the bans.

The appellate court’s ruling said in the Plainfield case said the bans are constitutional. But, Falk said, in the Jeffersonville case the court said the bans are unconstitutional when applied to those who no longer have to register.

He wonders whether Garrett’s ordinance may be unconstitutional because of its wording, applying to “individuals listed on the (sex offender registry).”

If it is applied to someone who is no longer required by law to register, but whose name still appears on the list, then it could be found unconstitutional, Falk said.

Posted by Marcia Oddi on October 5, 2009 10:41 AM
Posted to Indiana Law

Courts - If possible, SCOTUS Blog gets even better

SCOTUSblog, which unofficially fills the role of "the law blog of record for the Supreme Court", had this post yesterday about its changes to mark the start of the new Term.

Its "Monday Round-up" today is a must-read, as is this argument calendar for the week ahead.

Posted by Marcia Oddi on October 5, 2009 10:13 AM
Posted to Courts in general

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 10/5/09):

Thursday, October 8th

• 9:00 AM - Giovanoni v. Review Bd. of Ind. Dep't of Workforce Dev. and Beckingham v. Review Bd. of Ind. Dep't of Workforce - Both of these appeals involve claimants' eligibility for unemployment benefits following termination of employment for violation of no-fault attendance policies. The Unemployment Insurance Review Board denied the claimants' applications in both of these cases. A divided panel of the Court of Appeals reversed the Board's denial of benefits to Giovanoni, holding he was not terminated for just cause and therefore eligible for benefits. Giovanoni v. Review Bd. of Ind. Dep't of Workforce Dev., 900 N.E.2d 437 (Ind. Ct. App. 1/29/2008), vacated. A different Court of Appeals panel, also divided, affirmed the denial of benefits to Beckingham, holding she was discharged for just cause and therefore not entitled to benefits. Beckingham v. Review Bd. of Ind. Dep't of Workforce Dev., 903 N.E.2d 477 (Ind. Ct. App. 3/20/2009), vacated. The Supreme Court has granted petitions to transfer in both cases and has assumed jurisdiction over the appeals. The Court will hold a forty (40) minute combined oral argument for the two cases, but otherwise has not consolidated the appeals. [Note: Here is the ILB summary of the 2-1 COA opinion in Beckingham - 4th case; here is the 2-1 opinion in Giovanoni - 3rd case.]

• 9:45 AM - Jimmie C. Smith v. Champion Trucking Co., Inc. - Jimmie Smith was driving a truck in the course of his employment with Champion Trucking when he was struck by another motorist and injured. Jimmie received medical benefits from Champion and then simultaneously pursued additional worker's compensation benefits and a claim against the third-party tortfeasor. After Smith settled his claim against the third-party, the hearing officer granted Champion's motion to dismiss Smith's worker's compensation claim. The Worker's Compensation Board affirmed. The Court of Appeals reversed and remanded. Smith v. Champion Trucking Co., Inc., 901 N.E.2d 620 (Ind. Ct. App. 6/17/2009), 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 COA opinion - 2nd case.]

• 10:30 AM - Vanessa Thompson v. State of Indiana - In denying post-conviction relief, the Marion Superior Court rejected Appellant's claim that she was entitled to a new trial because the State had withheld evidence contrary to Brady v. Maryland, two witnesses had testified untruthfully, and Appellant received ineffective assistance of counsel. The Court of Appeals affirmed in Thompson v. State, 4/16/2009, an unpublished Memorandum Decision. Appellant has petitioned the Supreme Court to accept jurisdiction over the appeal.

Next week's oral arguments before the Supreme Court (week of 10/12/09):

Next Thursday, October 15th

• 9:00 AM - The Kroger Co. v. Lu Ann B. Plonski - Plonski sued Kroger for negligence afer she was assaulted in the store's parking lot by an unknown assailant. The trial court struck some of Kroger's designated evidence and then denied Kroger's summary judgment motion. The Court of Appeals affirmed on interlocutory appeal, holding Kroger's duty was well-settled and that material issues of fact remained regarding breach and proximate cause. Kroger Co. v. Plonski, 906 N.E.2d 448 (Ind. Ct. App. 4/28/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

• 9:45 AM - Gina Johnson v. Robert C. Johnson - The LaPorte Superior Court entered a dissolution decree incorporating the parties' property settlement agreement, which required Robert to make installment payments to Gina in exchange for sole ownership of the parties' real property. Thereafter, Robert filed a motion for declaratory relief relating to the priority of liens on the property. The court entered an order stating any existing judgment lien held by Gina is subordinate to a bank's lien securing an annual line of credit for farming operations. The Court of Appeals affirmed, concluding the order did not constitute an improper modification of the property settlement agreement. Johnson v. Johnson, 902 N.E.2d 830 (Ind. Ct. App. 3/4/2009), vacated. The Supreme Court has granted a petition to transfer the case and assumed jurisdiction over the appeal. [Note: Here is the ILB summary of the COA opinion.]

• 10:30 AM - Reynaldo Griffin v. State of Indiana - Griffin was arrested in possession of cocaine near a school. A St. Joseph Superior Court jury found him guilty of the enhanced Class B offense, possession of cocaine within 1,000 feet of a school, thus rejecting his defense that he was only briefly near the school and no children were present. See Ind. Code § 35-48-4-16. A divided Court of Appeals determined the evidence was sufficient to support the enhancement and affirmed in Griffin v. State, 905 N.E.2d 521 (Ind. Ct. App. 5/7/2009), 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 COA opinion - 2nd case.]

ALL Supreme Court oral arguments are videocast and accessible here, unless otherwise noted.

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This week's oral arguments before the Court of Appeals (week of 10/5/09):

Monday, October 5th

• 2:00 PM - Newland Resources, LLC., v. The Branham Corporation - Newland Resources, LLC entered into an agreement with The Branham Corporation under which Branham was obligated to provide assistance to Newland in the negotiation of contracts with the City of Indianapolis and the Indianapolis Water Company for the sale of water and acceptance of sewage flow from an area serviced by Boone County Utilities, LLC, a wholly-owned utility operating company formed by Newland to provide water and sewer utilities. The agreement also included provisions for a success fee payable to Branham in the event Boone County Utilities was sold to a third party under certain conditions. Newland appeals from a jury verdict in favor of Branham for $397,853.92 on Branham's complaint for breach of contract against Newland for payment of the success fee. In addition to numerous allegations of procedural errors, both Newland and Branham challenge the interpretation of the contractual provisions triggering the entitlement to and calculation of the success fee. The Scheduled Panel Members are: Judges Friedlander, Najam and Vaidik. [Where: Court of Appeals Courtroom (WEBCAST)]

Tuesday, October 6th

• 11:00 AM - Jeremy D. Simpson v. State of Indiana - A jury convicted Jeremy Simpson of voluntary manslaughter and criminal recklessness. On appeal, Simpson raises three issues: (1) that the State failed to rebut his self-defense claim; (2) that the trial court erred in refusing to recall a State's witness after defense counsel discovered that he had written a letter to the trial court requesting a modification of his sentence in another case and expressing concern for his safety; and (3) that the trial court erred in refusing one of his final jury instructions regarding the presumption of innocence. The Scheduled Panel Members are: Chief Judge Baker, Judges Crone and Bradford. [Where: Indiana Wesleyan University, Marion Campus, Marion, Indiana]

Wednesday, October 7th

• 1:30 PM - Michael Greer and John Maggi v. Edwin G. Buss, Commissioner of the Indiana Department of Corrections, et al. - THIS ORAL ARGUMENT HAS BEEN CANCELLED AND WILL BE RESCHEDULED AT A LATER DATE

• 2:30 PM - Dustin Neff v. State of Indiana - In this appeal from the Hamilton Superior Court, Dustin Neff appeals his conviction for one count of Class C felony child solicitation. Neff contends there is insufficient evidence that he committed the offense as charged. He also argues that the State failed to prove venue in Hamilton County where Neff, located in Madison County, chatted online with an individual in Georgia who was posing as a twelve-year-old girl, and Neff drove to a prearranged meeting place in Hamilton County. The Scheduled Panel Members are: Judges Barnes, Crone and Bradford. [Where: Indiana University, South Bend]

Next week's oral arguments before the Court of Appeals (week of 10/12/09):

Next Tuesday, October 13th

• 10:00 AM - George A. Scott v. Malissa Elizabeth Retz, R.N. and Indiana University - George Scott, a Clarian Health Partners' Safety and Security investigator, was stuck by an uncapped used syringe while investigating missing narcotics at Indiana University Hospital. He sued Malissa Retz, R.N., for negligence and Indiana University ("IU") for negligence, respondeat superior, and negligent retention. Retz and IU both filed motions for summary judgment. The trial court granted Scott's motion to strike an allegedly hearsay statement from an affidavit IU designated in support of its motion, but also granted both Retz's and IU's motions for summary judgment as to all Scott's claims. Scott appeals the trial court's grant of summary judgment to Retz and IU; IU cross-appeals the striking of part of its affidavit. The Scheduled Panel Members are: Judges Bailey, Robb and Crone. [Where: DePauw University at The Walden Inn and Conference Center, Greencastle, Indiana] [See story here from DePauw University News]

Next Wednesday, October 14th

• 1:30 PM - Thomas P. Donovan v. Grand Victoria Casino & Resort, L.P. - After being excluded from the casino because he was "counting cards" at blackjack, Thomas Donovan sued Grand Victoria Casino & Resort, L.P., claiming breach of an implied contract. The trial court granted the casino's motion for summary judgment. On appeal of that order, Donovan argues that Indiana law requires the casino to permit him to play blackjack there. Grand Victoria disagrees and asserts that, as a privately owned entity, it is free to decline Donovan's business for "any reason or no reason at all." The Scheduled Panel Members are: Judges Najam, Kirsch and Bailey. [Where: Indiana University Southeast, New Albany, Indiana]

The past COA webcasts which have been webcast are accessible here, via the calendars

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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 October 5, 2009 07:50 AM
Posted to Upcoming Oral Arguments

Sunday, October 04, 2009

Law - "A Smarter (and Cost-Efficient) Way to Fight Crime"

In the "Economic View" column today in the NY Times, Robert H. Frank's article begins:

LAW enforcement policy in the United States rests implicitly on the “rational actor” model of traditional economics, which holds that people take only those actions whose benefits exceed their costs.

This model says that crime will be deterred if the expected punishment is strong enough — a prediction that has not been borne out in practice. Although long sentences are now common and the incarceration rate is five times what it was during most of the 20th century, the crime rate is still two and a half times the average of 1950-62.

Mark Kleiman, a professor of public policy at the University of California, Los Angeles, says there is a better way. In a new book, “When Brute Force Fails”, he argues that instead of making punishments more severe, the authorities should increase the odds that lawbreakers will be apprehended and punished quickly.

Posted by Marcia Oddi on October 4, 2009 06:13 PM
Posted to General Law Related

Courts - "Six Supreme Court justices, VP attend Red Mass"

USA Today has posted this AP story that begins:

WASHINGTON (AP) — An American cardinal on Sunday issued a plea for the rights of the unborn at a church service that included Vice President Joe Biden, six members of the Supreme Court and hundreds of members of the legal community.

Five of the six Roman Catholics on the high court — Chief Justice John Roberts and Justices Sonia Sotomayor, Antonin Scalia, Anthony Kennedy and Samuel Alito— heard the homily by Cardinal Daniel DiNardo; the sixth, Justice Clarence Thomas, did not attend. Justice Stephen Breyer, who is Jewish, was there as well.

Speaking at the annual Red Mass the day before the opening of the Supreme Court term, DiNardo said that people represented by lawyers are "more than clients. ... In some cases the clients are voiceless for they lack influence; in others they are literally voiceless, not yet with tongues and even without names, and require our most careful attention and radical support."

As DiNardo spoke, protesters opposed to abortion demonstrated in front of the church.

Posted by Marcia Oddi on October 4, 2009 03:52 PM
Posted to Courts in general

Law - Donna Shalala says she is not interested in the top NCCA post

My candidate for NCCA President, Donna Shalala, makes a pretty good case that she is not interested, in this story today in the NY Times, headed "A Call to Change the N.C.A.A.’s Direction." Some quotes:

The death of Myles Brand last month silenced a strong voice of academic reform in intercollegiate athletics. It also created a void and myriad questions about the direction of the N.C.A.A., which he served as its president for the past six years.

The University of Georgia president, Michael Adams, top, and Tulane’s president, Scott Cowen, have been mentioned as possible candidates to be the N.C.A.A. president.

The N.C.A.A. faces ethical challenges like raging commercialism and escalating salaries for star coaches, and the subsequent tension between athletics and academia. And it must decide whether to recommit to Title IX, and roll back the length of playing seasons, especially in so-called minor sports.

“We have to do what Obama’s trying to do in health care reform,” Donna Shalala, the University of Miami president, said during a recent interview.

In fact, the task of reforming the N.C.A.A. bureaucracy, with all of its vested interests, may be more daunting than reforming health care because the emotions of alumni and boosters are involved. * * *

[Scott Cowen, the Tulane University president] has been mentioned as a possible successor to Brand, as have [Mary Sue Coleman, the University of Michigan president], Shalala and Michael Adams, the University of Georgia president. During separate phone interviews, each denied any interest in the position, now held on an interim basis by Jim Isch, an N.C.A.A. senior vice president.

“I am deeply engaged at the University of Michigan,” Coleman said.

Shalala said: “At the end of the day, the reason I’m in higher education is because I love the kids. Helping the kids from a distance is not what I want to do. I want to walk across campus, I want to teach a class. It’s just not me.”

Adams said: “I love the University of Georgia. It’s where I fit best. I feel pretty strongly this is where I’ll be.”

Cowen said, “I don’t have the temperament for that job.”

Posted by Marcia Oddi on October 4, 2009 03:39 PM
Posted to General Law Related

Ind. Law - More on "Requests for retroactive property tax exemptions threaten county budgets"

Yesterday the ILB posted this comprehensive entry, linking to all past entries on the impact of the retroactive property tax exemption said to apply to for-profit nursing homes.

The Fort Wayne Journal Gazette has an editorial today on the provision, headed "Lawmakers’ unintended consequence."

A combination of under-the-radar court decisions and unintended consequences of this year’s budget bill is turning into a multibillion-dollar headache for a number of Indiana counties.

As Amanda Iacone’s story on Wednesday explained, a number of for-profit nursing homes and hospitals are seeking exemption from property taxes, and an obscure section of this year’s budget bill allows owners of land used for charitable purposes to seek refunds going back a decade. In a worst-case scenario, if applications from all the owners for 700 Allen County parcels of land seeking the 10-year refund are granted, the county would lose $1.5 billion in assessed value for land and equipment and owe an estimated $30 million in refunds for current and back taxes.

Here’s why:

In Indiana, non-profit entities such as churches and social service organizations do not have to pay property taxes. Their property values are assessed, but the owners can seek exemptions.

Over the past few years, the Indiana Tax Court has issued opinions that have ruled nursing homes – even those that are owned by for-profit companies – provide a charitable service and are therefore eligible for property tax exemption.

“I don’t think anybody paid attention” to those cases, said Pete Mallers, a Fort Wayne attorney who represents a number of clients around the state seeking the refunds.

Some lawmaker – it isn’t clear who – slipped language in this year’s budget bill apparently intended to give a break to a single non-profit, not necessarily a nursing home, that had failed to file for its exemption over the years. The law extended the deadline for filing the exemption and also allowed eligible property owners who hadn’t filed in the past to receive refunds going back to 2000. But the way the bill is written, it could arguably apply to any property owner who provides a charitable service and has paid property taxes over the years.

“This was just something that came out of the blue,” Mallers said of this year’s language.

So the Property Tax Assessment Boards of Appeals in a number of Indiana counties are faced with weighing the requests to be exempted from property taxes and receive retroactive refunds.

Allen County Assessor Stacey O’Day believes the worst-case scenario will be avoided. “I think the law will need to be clarified,” she said. Still, she noted, “we will be spending many, many hours” defending the previous assessments, and the county will have to pay lawyers to research and challenge the appeals. This comes at a time when assessors must essentially conduct annual assessments of all properties and struggle to meet state-imposed deadlines.

Hoosiers should remember that the Indiana General Assembly failed to pass a budget on time – its only responsibility required by law. Indiana lawmakers routinely pass budgets on short notice. Ten years ago, powerful Democratic state Rep. Pat Bauer, now speaker of the House, quietly inserted language into a measure aimed at cutting the inventory tax. Most lawmakers didn’t learn until weeks later they had also passed a big tax cut for owners of mobile homes and RVs.

The issue involving the charitable property tax exemptions should serve as a haunting reminder that the legislature must vet the language and study the ramifications of the laws they adopt.

Clearly, soon after they convene in January, lawmakers will need to clarify exactly which properties are entitled to property tax exemptions.

Some thoughts from the ILB: It is hard for me to believe these were "unintended consequences" for all. The language buried in the budget opened a two-month window for entities to get their exemption applications in. The window closed on August 31st. Somehow, the word spread to for-profit entities around the state and many hundreds of retroactive exemption applications were filed before the deadline. Meanwhile, it was late September before the impact began to dawn on legislators, according to this quote:

A Logansport lawmaker says he doesn’t believe an amendment to this year’s state budget opened the door to tax refunds for nursing homes across the state.

State Rep. Rich McClain says the exemption applies only to those entities that are indeed not-for-profit organizations. The for-profit language in the amendment, he said, applies only to those nonprofit organizations that failed to file for their nonprofit status on time.

McClain said he researched the details of the bill with a staff member in the House Ways and Means Committee after hearing from constituents who were concerned by reports out of last week’s meeting of the Cass County Council.

Re "vetting the language" before acting, the above quote shows that even after-the-fact, the potential implications of the wording were not readily discernible. As a reader noted to me, the provision is written in "legislativese."

The problem, and the key to answer, lies in reformation of the now traditional so-called "budget bill" which mashes together into one impenetrable document provisions on every conceivable topic, and is put before each house on an up-or-down vote at the late minute, then presented to the governor on a "take it or leave it" basis. It may be weeks or months later before all the "surprises" turn up.

This is but the latest of a long list of budget bill surprises. For more from this year, see this collection of ILB entries, beginning on August 10th. Most are headed "Apparently there are all sorts of surprises in the special session budget."

Posted by Marcia Oddi on October 4, 2009 12:18 PM
Posted to Indiana Law

Courts - More on "Astor Trial (Finally!) Heads to the Jury"

That was the headline to this entry from Sept. 22nd. Nearly 10 days, last Friday, Oct. 1, John Eligon of the NY Times had this article that began:

The buzzer rang at 4:50 p.m. Thursday, and John R. Cuti, a defense lawyer in the Astor trial, furrowed his brows. He glared at his wristwatch, then at a clock in the back of the courtroom.

Had the jurors reached a verdict?

Uh...no.

They were simply alerting the court officers that they wanted to go home for the night.

After months of testimony that was at times tedious and at times shocking, perhaps the most psychologically grueling part of the trial is now in full swing: the waiting.

Posted by Marcia Oddi on October 4, 2009 12:12 PM
Posted to Courts in general

Ind. Gov't. - Harold Holzer and the closed Lincoln Museum

The ILB has a number of entries on the closing of the Lincoln Museum in Fort Wayne and the eventual decision to split the collection between the Fort Wayne library and the State Museum in Indianapolis. ("Other known suitors included the Abraham Lincoln Presidential Library and Museum in Springfield, Ill.; the Library of Congress; the Smithsonian Institution’s National Museum of American History; Ford’s Theatre; and President Lincoln’s Cottage.")

Renowned Lincoln scholar Harold Holzer was in Fort Wayne Thursday and, per the Journal Gazette, "spoke with editorial writer Stacey Stumpf about the Lincoln Museum and his current Lincoln project. Here are excerpts of the interview:"

What do you think about the decisions the Lincoln Foundation made about where to house artifacts from the closed Lincoln Museum?

It’s sort of a good news-bad news result. My preference as a visitor, as a historian who used that museum for 30 years, is that I wish everything would have stayed the same.

It was convenient. It was inspiring. It was a very rich museum. It was sort of incomparable in many ways. And the people were fantastic. They were great to visitors, and they were great to scholars, and that’s the best combination.

How it was decided? I find it mysterious. I don’t know what it was all about. Was there a real national search for a home? Was it always going to stay in Indiana?

I guess the result is good for Indiana because it’s in Indianapolis and in the Allen County (Library) museum.

2 How does the museum closure affect your research?

On the research side it remains to be seen. I’ve spoken to some of my old contacts at the museum who tell me that at some point it will be welcoming and accessible and, even more, it will be digitized and reproducible. And that will be a great service.

I’m not sure it couldn’t have been done in its original home, but that will be good. But the thing we will be missing and cannot be replaced digitally – I don’t think you can replace reality with digital reality.

Mr. Holzer seems to have carefully measured his words.

My question, particularly given the story this morning about the condition of the State Archives building -- where are the priceless Lincoln artifacts to be housed?

Posted by Marcia Oddi on October 4, 2009 10:54 AM
Posted to Indiana Government

Ind. Courts - More on the Delaware County Prosecutor Mark McKinney issues

The ILB has had many entries on the controversies involving Delaware County Prosecutor Mark McKinney. Today the Muncie Star-Press has an online "teaser" -- but the story itself is a "print exclusive," meaning that unless you buy of copy of today's paper, this headline "McKinney presents 'appearance of evil?'" to this brief story will leave you in the dark:

Did Mark McKinney’s double-duty as a Delaware County prosecutor and civil attorney for the city-county Drug Task Force’s efforts to seize assets of local drug defendants have “the appearance of evil?”

McKinney — who is facing disciplinary action from the Indiana Supreme Court over his dual role — scoffs at the idea and notes that a special prosecutor has cleared him of any criminal wrongdoing.

But a noted Hoosier law expert says that McKinney’s actions, even if they were not illegal, could pose an ethical problem for the embattled attorney.

For more on this story see today's print edition of The Star Press.

Perhaps it would have been better for the paper to put nothing online, rather than to leave the paper's own characterization hanging?

Posted by Marcia Oddi on October 4, 2009 09:56 AM
Posted to Indiana Courts

Courts - "U.S. attorney vacancy no laughing matter: Lawyer’s cartoons don’t help him"

Andrew Wolfson of the Louisville Courier Journal reports today in a story that begins:

Want to be a U.S. attorney in Kentucky? Then you might not want to draw cartoons making fun of the state's senior U.S. senator.

Marc Murphy, a former commonwealth's attorney who is a freelance cartoonist for The Courier-Journal, says he learned that the hard way.

The newspaper reported in January that Murphy was one of six lawyers who talked to U.S. Rep. John Yarmuth, D-3rd District, about getting the appointment as top federal prosecutor in the Western District of Kentucky.

But Murphy, a Democrat, said Yarmuth later told him that when he consulted with Republican Sen. Mitch McConnell about his possible recommendations for the job, McConnell replied: “You're not going to recommend that guy who draws those cartoons of me, are you?”

Murphy said Yarmuth told him that he laughed at McConnell's comment, but McConnell didn't laugh back.

Here is a sample - the story includes several more.

Posted by Marcia Oddi on October 4, 2009 09:24 AM
Posted to Courts in general

Ind. Gov't. - "Indiana plan would pull WorkOne staff from Elkhart libraries"

Back in January of this year the ILB had a number of entries under the heading "Libraries are overwhelmed by unemployed filing for help." How is that working out? Here is an AP report in the South Bend Tribune that begins:

ELKHART (AP) — A state Workforce Development plan to stop staffing Elkhart libraries on Sundays and Mondays to help jobless workers with unemployment claims has angered library and public officials, who say the state should be doing more to help workers in the county with the state's highest unemployment rate.

The library branches have become a key resource for laid-off workers, especially on Sundays, when many workers use library computers to file claims.

Marc Lotter, a spokesman for the Department of Workforce Development, said the agency was reviewing its resources and shifting them to where demand was the highest.

He said the state urges laid-off workers to go to WorkOne offices to get help with resume writing, interviewing skills and basic computer training.

"WorkOne Centers are not unemployment offices," Lotter said. "They are employment offices."

But state Rep. Jackie Walorski, R-Elkhart, said the resources need to be available where the laid-off workers are instead of trying to "railroad people" into the WorkOne offices.

Connie Jo Ozinga, director of the Elkhart Public Library, said the Pierre Moran branch has recorded heavy traffic on Sundays since July 2008. The branch has been opening an hour earlier and has switched all its computers to the DWD system to accommodate the workers, she said.

"We're trying really hard to provide the best library service that we can," Ozinga said. "These people are part of our clientele. We're doing our best but feel like we're failing because we have so little space and computers."

The state has agreed to keep a WorkOne employee at the Pierre Moran branch on Sundays but will pull its employees from the Dunlap and downtown branches.

From a side-bar:

Libraries are feeling the effect of high unemployment rates in Elkhart County. To avoid the crowds at WorkOne locations, more people are heading to the library to file for unemployment. As a result, smaller library branches like Pierre Moran have set up special workstations and waiting areas just for those seeking to access the Workforce Development Web site. But the state of Indiana is looking at stopping the practice in Elkhart libraries.

Posted by Marcia Oddi on October 4, 2009 09:16 AM
Posted to Indiana Government

Ind. Gov't. - State archives still waiting for new roof

In 2005 I wrote an article for Res Gestae titled "Indiana appellate court records – how accessible?" From p. 4:

Skipping backward to the earliest Indiana court records, 18th and 19th century order books, docket books, pleadings and briefs are stored in State Archives. This agency, with funding provided by the Supreme Court, is currently engaged in a push to open up Indiana court records from 1817-1868. But it will be very slow going.

I took a trip out to Public Records and State Archives, located in the east side of Indianapolis, in October [2005], and was given a guided tour though the temperature and humidity controlled vault where these early records are kept. * * *

Each of these 1817-1868 cases is folded up in thirds, like a will or similar document may be folded today. At some point in history the case records were wrapped in kraft-type paper and boxed in narrow file boxes. Most have remained undisturbed for more than a century. There are 12,522 of these cases. * * *

After the 1817-1868 cases have been processed, there are bankers boxes of the 1869-1900 records. These records may include the trial transcript. Then, on to the 20th century, where there are the 52 skids of uncataloged court records.

State Archives has only six people on its staff. I’m told their active volunteer programs are what keeps them going. Archives is hoping that Indiana lawyers will volunteer to help with the Stage 2 processing of the 1817-1868 records.

What I remember most about the archives is that they are located in a gigantic warehouse building, housing seeming acres of metal shelving, and that everything was sheathed in plastic sheets, the kind painters use. Why? Because of severe leaks through the much-repaired flat roof of the old RCA building. Employees were very concerned about the continuing leaks, and were hopeful something permanent would be done soon by the powers that be.

That was four years ago. Today the Indianapolis Star has this story by Will Higgins, titled "Archives are at the mercy of nature: So far, efforts to provide rainproof way to store state's treasures have come up dry." Some quotes:

Indiana's state archives, original and irreplaceable paperwork documenting the people's business since before statehood, got rained on a few weeks ago -- for the third time this year.

A fourth time seems inevitable.
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Among the most treasured documents are the state constitution; the earliest state Supreme Court cases; John Dillinger's prison records; and the contract, from 1964, between the Indiana State Fair Board and the Beatles.

The building that houses them, built nearly four decades ago by RCA as a warehouse for eight-track tapes, has a leaky roof. And while Indiana's Department of Administration has scheduled some patch-up work in the coming days, people familiar with the building say the roof surely will leak again -- as it has for the past decade, despite repeated repairs.

The recent soaking -- 30 boxes of House and Senate bills from the 1960s -- was discovered promptly, and the documents were dried out and saved. They've been returned to their shelves and covered by sheets of clear plastic.

There is no other help in sight. The Department of Administration hoped to put a new roof on the building this year and included in its budget $2.4 million for that purpose.

But Gov. Mitch Daniels killed that plan. "In December 2008, we got a revenue forecast that showed we had a three-quarters-of-a-billion-dollar hole in our budget," said the governor's spokeswoman, Jane Jankowski. "Beginning right then and there, we had to make a lot of decisions about what we could and couldn't spend." * * *

Budgets to store and maintain historical documents vary widely from state to state, because some archivists are responsible for every county's documents while others are primarily concerned with state business. Iowa's budget was $434,000, according to the CSA's study; Washington state's was $10 million.

Indiana's building, said Jerry Handfield, Washington state's archivist and a board member of the National Historical Publications and Records Commission, is "an accident waiting to happen."

He speaks with authority -- he has visited half the states' archives and, in the 1990s, was Indiana's archivist.

The old eight-track repository, on East 30th Street, initially was intended as temporary quarters. The archives needed to be cleared out of the basement of the State Library, where they'd been since 1932, because the basement was being remodeled.

That was in 2001.

Leaks aren't the only worry, said Pierce, who notes that several tornadoes have touched down near the building. The way he sees it, "we're at a point now where we're one day closer to a disaster."

[Matt Pierce, D-Bloomington] said he plans to bring up the issue again in the next legislative session.

Posted by Marcia Oddi on October 4, 2009 08:44 AM
Posted to Indiana Government

Saturday, October 03, 2009

Ind. Gov't. - Amicus brief authored by Indiana filed in Hemi Group, LLC v. City of New York

On August 7th, the ILB's entry headed "Who should decide Indiana's position on national legal issues? Who should know?" , announced that the AG's office had made information available enabling preparation of a Table titled AG Zoeller Amicus Briefs 2009.

Yesterday, Bryan Corbin, Public Information Officer to the AG, sent out this note to the press:

Several of you have asked to be notified whenever the Indiana Attorney General files an amicus brief in a cert petition to the U.S. Supreme Court.

Indiana recently filed an amicus brief (see below) signed by 19 other states on behalf of the respondent, New York, in a case involving the use of federal racketeering laws.

Our friend-of-the-court brief, authored by Indiana Solicitor General Tom Fisher, explains the Attorney General's use of the federal civil RICO statute in our successful litigation against 27 defendants in the East Chicago "sidewalks for votes" case. The two main defendants, former East Chicago Mayor Robert Pastrick and former mayoral aide James Fife III, were found in default on every count the state alleged. The federal judge has not awarded damages yet but has damages and a legal remedy under advisement. Our previous news release about the default finding is attached also.

In requesting the Supreme Court hear the New York case, Solicitor General Fisher's brief explains how our use of the federal civil RICO statute relates to New York's.

Here is the AG's webpage on the East Chicago RICO case.

Here is Indiana's amicus brief in Hemi Group, LLC v. City of New York, dated Sept. 23, 2009, posted by the ILB. Note that the case is the first listed in the 2009 Amicus Briefs Table.

Posted by Marcia Oddi on October 3, 2009 11:25 AM
Posted to Indiana Government

Courts - More on: C-SPAN to focus on Supreme Court this week

Updating this ILB entry from yesterday, Hank Stuever of the Washington Post has reviewed the upcoming C-SPAN series. Some quotes:

There are people in Washington (and beyond) whose fascination with the Supreme Court is like a mild case of Beatlemania. They comb through the court's opinions with gusto; they know where certain justices like to eat lunch out; they've read the heaps of books that all promise some clearer insight into the personalities and minds that form the clandestine nine.

They also probably know it's Supreme Court Week on C-SPAN (not to be confused with Shark Week!), timed to the court's reconvening Monday and beginning with an unprecedented and surprisingly moving documentary Sunday night. * * *

In the still more off-limits rooms where the justices meet to consider and then render opinions, we learn how Chief Justice John Roberts assigns writing duties, and we hear Justice Antonin Scalia's thoughts on whether arguments from attorneys ever really influence his opinion ("It's probably quite rare, although not unheard of," he says) and, from Justice John Paul Stevens, we learn that in the afternoon, coffee is delivered with "a sweet roll or a cookie or something."

Bland and thrilling, all at once. Just another day from on high.

""Supreme Decision," an online game designed to teach schoolchildren about the judicial branch, is the subject of this Washington Post story by Kashmir Hill and David Lat. (David Lat is the founding editor and Kashmir Hill is the associate editor of Above the Law, a legal blog.)

Posted by Marcia Oddi on October 3, 2009 11:14 AM
Posted to Courts in general

Law - "Options for Managing Law School Student Loan Debt"

Available here, via Law.com.

Posted by Marcia Oddi on October 3, 2009 11:11 AM
Posted to General Law Related

Law - "The Lilly Ledbetter Fair Pay Act of 2009: A Preliminary Report"

FindLaw.com columnists and law professors Joanna Grossman and Deborah Brake have written a three-part article on the Lilly Ledbetter Act. Part I and Part II are now available.

Posted by Marcia Oddi on October 3, 2009 11:05 AM
Posted to General Law Related

Courts - "The Propriety of Criticizing Judges"

"The Propriety of Criticizing Judges," a lengthy article by Joel Cohen and Katherine A. Helm, prepared as a special to Law.com, is dated Oct. 5th. A few quotes:

So when is an attorney subject to professional disciple for speaking his or her mind about a judge's conduct or decisions? What are the limits on a lawyer's free speech rights when it comes to -- let's say it like it is -- bad-mouthing judges, which any lawyer has to admit that he's done at some time in his career, if he's had any courtroom experience to speak of?

It is flatly against policy for a lawyer to openly decry a sitting judge. More staunchly, ethics rules and case law inform us that professional misconduct charges can be levied when an attorney makes false or reckless accusations against a presiding judge to the press, when the lawyer's remarks create a substantial likelihood of materially prejudicing an adjudicative proceeding, or when the attorney's conduct is otherwise unbecoming a member of the bar. See, e.g., ABA Model Rules of Professional Conduct 8.2(a); In re Palmisano, 70 F.3d 483 (7th Cir. 1995); In re Snyder, 472 U.S. 634 (1985); U.S.D.C. v. Sandlin, 12 F.3d 861, 866 (9th Cir. 1993) (noting a lawyer "does not surrender his freedom of expression" upon admission to the bar, but "he must temper his criticisms in accordance with professional standards of conduct.").

Famed civil rights attorney William Kunstler was subject to disciplinary charges by the New York State Bar after exclaiming to the justice presiding over the Central Park jogger rape trial that the justice had exhibited his partisanship, that he "should not be sitting in court," and that he was "a disgrace to the bench." See Kunstler v. Gilligan, 571 N.Y.S.2d 930 (App. Div. 1991), aff'd, 579 N.Y.S.2d 648 (N.Y. 1991). * * *

A recent New York Times article addressed the issue of lawyers criticizing judges and the legal profession in the context of social media tools. It discussed the tension between being an officer of the court with limited ability to criticize the court and the loss of personal privacy, and maybe even appropriate discretion, that occurs through the use of online communication tools. But the real issue is not just about how lawyers are constrained by professional codes of conduct from fully expressing themselves online. That's just the medium. The seminal question is an age-old one that concerns the extent to which lawyers' discourse about the profession and individuals therein should be constrained, period.

The belief is often bandied about that lawyers should refrain from pettifogging criticisms or other contempt in the face of the court, to avoid undermining public faith in the legal system. That said, lawyers are not soldiers atop the courts' ramparts, defending and protecting the judiciary's inner sanctum. Lawyers represent their clients. Judges can generally fend for themselves, even though their own ethical canons bar them from making public comments or rebukes on pending matters. Nonetheless, few judges are milquetoast creatures deserving of kid-glove handling. Not to say that judicial proceedings shouldn't have dignity and decorum, but isn't a respectful attitude toward the court best exemplified not by blind allegiance to its practices but rather by assisting to uphold the honor of the legal profession by calling a spade a spade when a judge does something significantly deserving of condemnation and critique? * * *

The problem arises in trying to draw the line between open criticism of judges or courts that is constructive and calls out what the law recognizes as a judicial impropriety or the appearance thereof, and disparaging aspersions cast by litigants, themselves tired of being perpetually judged, whose intemperate statements are not aimed at improving the legal system per se. Unfortunately, the latter type is far more common, if only because courtrooms tend to be filled with trial lawyers who are, as Carly Simon would say, the types to have "walked into the party like they were walking onto a yacht" (and yes, they probably think this article is about them too). No wimpy civility, to put it mildly, from these blowhards. But our point is: The alternative is less desirable and far more dangerous -- our legal system cannot sustain itself with a world full of lawyers with Laodicean attitudes toward judicial integrity.

Now is the right time to have this discussion -- this is the age of transparency.

Posted by Marcia Oddi on October 3, 2009 10:54 AM
Posted to Courts in general

Environment - "Study reports Indiana Dunes National Lakeshore threatened by climate change"

The Chesterton Tribune reported yesterday that:

Indiana Dunes National Lakeshore is one of 25 national parks identified as being most threatened by climate change in a study conducted jointly by the Natural Resources Defense Council and the Rocky Mountain Climate Organization.

The study, released on Thursday, characterizes the National Lakeshore as “vulnerable to a loss of ice and snow, a loss of water, more downpours and floods, a loss of plant communities, a loss of wildlife, more crowding, a loss of fishing, and more air pollution”: all the consequences of climate change caused by “human activities” resulting in “the emission of heat-trapping gases.”

The story continues with specifics of the impact on the Dunes, such as:

“With a changed climate, more precipitation comes in downpours,” the study states. “The amount of rain falling in heavy storms increased by 20 percent over the past century, while there has been little change in the amount from light and moderate storms. . . . With an increase in downpours, flooding is also likely to increase. Virtually all national parks in Indiana and elsewhere are at risk.”

For the Report itself, start here with a map showing the "25 national parks most at risk as human activities continue to change the climate."

Posted by Marcia Oddi on October 3, 2009 10:46 AM
Posted to Environment

Law - "Texas Battle on Gay Marriage Looms" and "The High Price of Being a Gay Couple"

James C. McKiney Jr. reports today in the NY Times:

HOUSTON — A judge in Texas paved the way for a court battle over the state’s ban on same-sex marriage when she ruled this week that two men married in another state can get divorced in Dallas.

The state attorney general said Friday that he would appeal the decision, even as gay rights advocates applauded the judge, Tena Callahan of Family District Court, for declaring that the state’s four-year-old ban on same-sex marriages and civil unions violated the right to equal protection under the 14th Amendment.

The case highlights a subtle way gay men and lesbians often face complications when it comes to marriage: gay couples who have managed to marry in the few states where it is legal have trouble divorcing and dividing their property if they move to a state where it is not.

In the last two years, courts in Indiana, Oklahoma and Rhode Island, for instance, have denied divorces to same-sex couples who had been married in other jurisdictions. All three have laws against gay nuptials. Courts in a few other states, notably New York and New Jersey, have allowed divorces to go forward for gay men and lesbians married in other states, even though they do not allow same-sex marriages.

The ILB has had a long list of entries referencing same sex divorce issues.

A second NY Times story today, this one reported by Tara Siegel Bernard and Ron Lieber, is headed "The High Price of Being a Gay Couple." The story begins:

Much of the debate over legalizing gay marriage has focused on God and Scripture, the Constitution and equal protection.

But we see the world through the prism of money. And for years, we’ve heard from gay couples about all the extra health, legal and other costs they bear. So we set out to determine what they were and to come up with a round number — a couple’s lifetime cost of being gay.

It was much more complicated than we initially imagined, and that’s probably why we’ve never seen similar efforts. We looked at benefits that routinely go to married heterosexual couples but not to gay couples, like certain Social Security payments. We plotted out the cost of health insurance for couples whose employers don’t offer it to domestic partners. Even tax preparation can cost more, since gay couples have to file two sets of returns. Still, many couples may come out ahead in one area: they owe less in income taxes because they’re not hit with the so-called marriage penalty.

Our goal was to create a hypothetical gay couple whose situation would be similar to a heterosexual couple’s. So we gave the couple two children and assumed that one partner would stay home for five years to take care of them. We also considered the taxes in the three states that have the highest estimated gay populations — New York, California and Florida. We gave our couple an income of $140,000, which is about the average income in those three states for unmarried same-sex partners who are college-educated, 30 to 40 years old and raising children under the age of 18.

Here is what we came up with. In our worst case, the couple’s lifetime cost of being gay was $467,562. But the number fell to $41,196 in the best case for a couple with significantly better health insurance, plus lower taxes and other costs.

These numbers will vary, depending on a couple’s income and circumstance.

The story is accompanied by a number of comparison charts, a videocast, and a long document headed "A Look at How the Column Was Reported." The document is also available as a 25-page PDF, and goes through all the assumptions the Times used in its analyses.

Posted by Marcia Oddi on October 3, 2009 10:01 AM
Posted to General Law Related

Ind. Law - "Requests for retroactive property tax exemptions threaten county budgets"

Adding to a number of stories from papers around the state (see below), each adding more information, Lesley Stedman Weidenbener has this story in today's Louisville Courier Journal:

Indiana counties could be forced to refund millions of tax dollars if for-profit nursing homes and other health care providers succeed in arguing they’re eligible for retroactive charitable property tax exemptions.

In all, 21 for-profit health care providers – mostly nursing homes – have filed for the exemptions in Clark, Floyd and Harrison counties to seek refunds for tax years back to 2001. In Clark County alone, eight applications represent $32 million in assessed value.

Officials haven’t yet calculated how much that could cost the county in refunds, but county attorney Greg Fifer estimated it could be several million dollars for each tax year.

“It’s a potential budget crisis of a magnitude we’ve never seen before,” Fifer said.

Floyd County has a dozen applications for the exemptions, and Harrison County has one.

Similar applications have been filed in dozens of other Indiana counties.

The private companies argue that a combination of court decisions makes them eligible for the exemption, while the state budget that was passed in June allows them to ask for retroactive refunds.

“I think the law we’re operating under for nursing homes is clear,” said Pete Mallers, a Fort Wayne attorney who is representing a number of the nursing homes, including some in Southern Indiana.

But Senate Tax Chairman Brandt Hershman, R-Monticello, said Friday the General Assembly never intended to give for-profit corporations any charitable tax breaks. Instead, lawmakers created the retroactive language to give nonprofit groups that missed filing deadlines time to apply for the charitable exemption and recoup money lost in previous years.

Hershman said there was never a discussion about nursing homes or for-profit companies taking advantage of the law.

“If there’s a need to clarify the law or the tax court decisions, I’m sure we’ll take that under consideration,” Hershman said. “Obviously, the tax revenue impact could be significant and that was not the intent of the law. If it needs a correction, I’ll work with my colleagues to correct it.”

According to a memo filed with one of the Clark County nursing home applications, Indiana Tax Court decisions over the years have defined some health care services, particularly those for the elderly, as charitable purposes. Then in 2005, the Indiana Appeals Court said “the fact that an organization earns a profit is not necessarily determinative of whether it serves a charitable purpose.”

Mallers, whose firm wrote that memo, had been seeking tax exemptions for nursing homes even before the General Assembly passed the retroactive provision. He’s been successful in four counties where local property tax boards charged with reviewing the applications have granted exemptions for the for-profit nursing homes.

Other counties have said no, however, and Mallers’ appeals are pending before the state’s property tax board.

The disputes were relatively quiet until the General Assembly allowed retroactive refunds. But that led to a wave of applications from Mallers’ clients and others, leading to a Sept. 1 deadline specified in the budget to apply for such refunds.

Since then, “the only decisions we have received have been denials,” Mallers said. “We’re not surprised. We fully anticipate that this is ultimately going to be handled at a higher level.”

The local property tax boards in Clark, Floyd and Harrison counties have not yet considered the applications, a process that Fifer said could take another four to six weeks in Clark’s case. Meanwhile, several county assessors have sought guidance from the Indiana Department of Local Government Finance and outside tax attorneys.

The state agency has urged local officials to “review each property tax exemption application carefully” to see if it meets the test for charitable use, said Mary Jane Michalak, a spokeswoman for the local government finance agency.

But it has not given specific direction for dealing with the nursing home cases.

Carmel property tax attorney Marilyn Meighen said the legal issues are largely untested. She said the tax and appeals court decisions that the private companies are using to make their case don’t necessarily speak to the specifics of for-profit nursing homes using charitable exemptions.

“This is a fight for both sides,” said Meighen, who is working with at least 40 counties on the issue. “It’s not a lay-down win for either one.”

She expects whatever decisions are made locally to be appealed through the state board, tax court and appellate court. Ultimately, she said, the issue will likely be settled by the Indiana Supreme Court – unless the General Assembly intervenes first.

The drawn-out legal process would at least give local officials some time to find the money to pay refunds if they are ordered, she said.

“The financial ramifications are just enormous,” Meighen said. “This is real money and nobody has budgeted for it.”

Most of these earlier stories were referenced in ILB entries with the heading: "Did an amendment to this year’s state budget open the door to tax refunds for nursing homes across the state?"

• ILB summary of SECTION 479 of this year's budget bill - here

• Sept. 30th Fort Wayne Journal Gazette story, reported by Amanda Iacone - here

• Sept. 24th Kokomo Perspective story, reported by Tim Turner - here

• Sept. 24th Logansport Pharos-Tribune story, reported by Jennifer Tangeman - here

For more on this year's budget bill and its issues, see:

• Sept. 23rd ILB entry, headed "Words matter, regardless of a legislator's, or legislature's, intent" - here

• This collection of ILB entries, beginning on August 10th - here. Most are headed "Apparently there are all sorts of surprises in the special session budget."

Posted by Marcia Oddi on October 3, 2009 09:02 AM
Posted to Indiana Government | Indiana Law

Friday, October 02, 2009

Ind. Decisions - Four cases granted transfer Oct. 1st

The Clerk's transfer list should be available sometime Monday. Meanwhile, the ILB has just received notice that transfer has been granted Oct. 1st in the following cases:

1. Chawknee P. Caruthers v. State -- No. 46S05-0910-CR-431
2. Luis E. Duran v. State -- No. 45S03-0910-CR-430
3. Myron M. Owens v. State -- No. 49S02-0910-CR-429 [spelling corrected]
4. State v. Robert Richardson -- No. 49S02-0910-CR-428

More on this later.

Posted by Marcia Oddi on October 2, 2009 03:51 PM
Posted to Indiana Transfer Lists

Courts - C-SPAN to focus on Supreme Court this week

Starting tonight. At 6:00 PM, a "Supreme Court Preview"::

Tonight, watch a preview of the upcoming Supreme Court term, hosted by William & Mary Law School. First, a case involving juvenile sentencing is tried before a moot court featuring journalists, professors and former solicitors acting as Supreme Court Justices (6pm ET). Then panel discussions on "Sotomayor and the Supreme Court" (7:30pm ET) and "The Court in 2020" (8:30pm ET).

For more on this, see this page from the William & Mary Law School, headed "22nd Annual Supreme Court Preview, Oct. 2-3."

Here is C-SPAN's special Supreme Court week of coverage page:

Beginning Sunday October 4 at 9pm and continuing through that entire week--each night at 9pm -- C-SPAN will present groundbreaking and unique programs on the Supreme Court. Featuring our original documentary production "The Supreme Court: Home to America's Highest Court" as well as an unprecedented collection of original interviews with all 11 living current and former Supreme Court Justices, Supreme Court week will offer viewers a rare window into the Supreme Court and those that serve there.

Check here for the line-up of programs. Here it is, abbreviated:

"The Supreme Court: Home To America’s Highest Court" - Sunday, October 4, 9 pm

Lyle Denniston, SCOTUS blog, and Joan Biskupic, USA Today - Monday, October 5, 9 pm

William Suter, Clerk of the Supreme Court - Tuesday, October 6, 9 pm

Jim O'Hara, Supreme Court historian and Frank Gilbert, Grandson of Justice Louis Brandeis - Wednesday, October 7, 9 pm

Drew Days III - Solicitor General, Clinton Administration, and Maureen Mahoney, former SC Law Clerk and Private Attorney - Thursday, October 8, 9 pm

Justices Kennedy, Ginsburg, Scalia & O'Connor interviews - Friday, October 9, 9 pm

Justices Sotomayor, Breyer, Thomas & Alito interviews - Saturday, October 10, 9 pm

Justices Roberts & Stevens interviews - Sunday, October 11, 9 pm

"The Supreme Court: Home To America's Highest Court" - Monday, October 12, 6 pm & 8pm

And be sure to take a look at C-SPAN's YouTube site.

Posted by Marcia Oddi on October 2, 2009 03:27 PM
Posted to Courts in general

Ind. Gov't. - More on: "Victims still waiting for help Thousands of claims for aid from state sit unpaid"

This is the third entry the ILB has posted on the state crime victims' fund.

The first came from a June 21st story in the Fort Wayne Journal Gazette.

The second came from a July 19th story in the Indianapolis Star.

More than three months later, nothing seems to have changed. Today's story in the Star by Heather Gillers, recounting testimony of T. Neil Moore, executive director of the Indiana Criminal Justice Institute, before the legislature's Sentencing Policy Study Committee, appears simply to be more of the same:

Moore said the Criminal Justice Institute has 2,774 unpaid aid applications, some dating to 2006. He hopes to cut a three-year wait to one year by 2010.

Posted by Marcia Oddi on October 2, 2009 01:56 PM
Posted to Indiana Government

Ind. Courts - "Easterbrook Slams CD Illinois Judge For Allowing Cameras in the Courtroom"

From the Champaign-Urbana News-Gazette today, a story by Tim Mitchell:

URBANA – U.S. District Judge Joe Billy McDade has apologized for allowing cameras to record a Champaign schools consent decree hearing in September.

McDade issued the written apology after Judge Frank Easterbrook, chief judge of the 7th Circuit, chided McDade in a written opinion for allowing video and still photography and live broadcasting of a Sept. 15 fairness hearing over the Champaign school district's consent decree.

At least four video cameras, two audio recorders and one still camera recorded the hearing.

The News-Gazette used still and video photography at the hearing. The paper also asked the judge to broaden his initial intent to allow only television cameras into the courtroom, and he granted that request.

n a memo issued on Monday, Easterbrook noted that a copy of one of the video recordings had been posted on the Internet and that photos from the hearing had appeared in the newspaper.

Easterbrook cited an Oct. 15, 1996, policy by the 7th Circuit Judicial Council that said, "The taking of photographs, making of audio or video recordings, or electronic broadcasting of judicial proceedings in or from a court room must not be permitted by any district court in this circuit."

In his opinion, which is available online here, Easterbrook said McDade violated the policy when he allowed cameras at the hearing.

McDade responded with a letter in which he said he believed he could grant an exception to the rule prohibiting cameras.

"Because of the considerable interest in the case by the Champaign community over the past seven years during the existence of the consent decree, I wanted the widest possible dissemination of the hearing," McDade wrote.

McDade said he was wrong to allow the cameras.

"I deeply regret my violation of the policy prohibiting the taking of photographs, making of audio or video recordings or electronic broadcasting of judicial proceedings," McDade were. "I was in clear violation of these policies and will do anything necessary to make amends."

The full text of McDade's letter is available here.

Easterbrook said no party to the hearing was damaged by the recordings and that no one had complained.

Thanks to the WSJ Law Blog, which picked up this Illinois story earlier this afternoon. Here is their post.

Posted by Marcia Oddi on October 2, 2009 01:24 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

D.B. v. M.B.V. - "Here, the trial court articulated no specific finding that parenting time would cause harm to the children. The record disclosing the past interaction between Father and his children does not approach the egregious circumstances in which we have previously found that parenting time may be terminated, such as when a parent sexually molests a child. Clearly, our parenting time statute does not provide for the elimination of parenting time because reunification counseling has proved unusually challenging or because teenagers do not wish to interact with a parent while accepting substantial financial benefits from that parent.

"However, while the complete termination of parenting time is not supported by the evidence, the record would support an order for supervised parenting time. Such an order would be appropriate given the volatile relationship between the parties, the ages of the children, and the concern of one therapist that supervision of parenting time would protect Father from unfounded accusations. On remand, should the trial court restrict Father’s parenting time upon entry of the requisite statutory finding of endangerment, we encourage the trial court to order that the parenting time be supervised."

NFP civil opinions today (2):

Sean Feeney v. Review Board and Cetani (NFP) - "Feeney has not established that he was wrongly denied unemployment benefits. We affirm."

Michael A. Stephens v. Gilkey Wholesale Greenhouses Inc. (NFP) - "Under the facts and circumstances of this case, Stephens's default judgment did not arise from a breakdown in communication with his attorney or from any other “mistake, surprise, or excusable neglect.” Rather the default judgment resulted because Stephens failed to act for a substantial period of time after being advised by Fahl that Stephens should retain alternative counsel in the Gilkey matter. After being so advised, Stephens could not reasonably believe that Fahl continued to deal with the Gilkey matter.

"After Fahl had notified Stephens of his inability to continue as counsel, Stephens had at least two months to make alternative arrangements before Gilkey filed its motion for default judgment. Stephens knew that he needed to retain another attorney. Stephens cannot now argue that his neglect of this matter is excusable under Trial Rule 60 (B) (1).

"The trial court did not abuse its discretion when it denied Stephens's motion to set aside default judgment. Affirmed."

DARDEN, J., and RO

NFP criminal opinions today (2):

Randall Tison v. State of Indiana (NFP)

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

Posted by Marcia Oddi on October 2, 2009 12:55 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Bar exam results from July exam

The list of those applicants who are successful on the July 2009 Indiana Bar Examination were posted here this morning.

Posted by Marcia Oddi on October 2, 2009 09:37 AM
Posted to Indiana Courts

Ind. Law - "Liability, statutes of limitations, and statute of repose for asbestos-related illnesses"

That was the description of item #4 on the agenda of yesterday's meeting of the interim Commission on Courts. Reporter Eric Bradner was there and has a long story today in the Evansville Courier & Press. Some quotes:

Before she dies, Dorothy Kuykendall wants her day in court. * * *

This April, she learned that she is dying of cancer. Even though she hasn’t handled asbestos since 1975, her doctors say that exposure is the cause. * * *

State statute gives Hoosiers only 10 years to file a lawsuit after contact with harmful materials. Since Indiana doesn’t make an exception for those with latent diseases, she has no recourse.

Kuykendall can’t get workers’ compensation, and she can’t sue. Therefore, Medicare is on the hook for hundreds of thousands of dollars in medical expenses as a result of her disease.

“My family and the taxpayers are paying for the actions of the company that sold asbestos and my former employer,” she said. “It’s just not fair.”

Kuykendall was part of a group of advocates who asked a panel of state lawmakers on Thursday to pass legislation that would allow those who develop diseases caused by asbestos decades after being exposed to sue the companies responsible for the exposure. * * *

Under current Indiana law, those who are exposed to hazardous materials such as asbestos have up to 10 years to file a lawsuit.

However, asbestos diseases – most prominently, mesothelioma – can take much longer to develop, meaning that by the time the illness is discovered and diagnosed, the chance to take legal action has already passed.

Indiana is the only state that doesn’t have a law on the books allowing for exceptions for latent diseases, according to Russell Sipes, an attorney who testified Thursday and who represents clients who suffer from asbestos-related diseases.

The legislation he called for would maintain the state’s current 10-year window, but would carve out an exception that allows Hoosiers who are beyond that time frame to sue within two years of being diagnosed.

It’s an exception the General Assembly approved in 1989. However, a 2003 state Supreme Court ruling drastically altered the meaning of that law, rendering it essentially useless, Sipes said.

“It’s obvious – people who become ill never have a right to sue,” he said. “They become sick and often they die long after the time the Legislature has set for them to bring a cause of action to try to hold anyone responsible.” * * *

The committee’s chairwoman, Rep. Linda Lawson, D-Hammond, said she expects her panel to recommend that the General Assembly pass a bill allowing for the two-year exemption for latent diseases during the 2010 session.

Mike Smith of the AP has this story today.

Re the 2003 Indiana Supreme Court decisions, the ILB wrote about them on March 27, 2003 in an entry that began:

In a series of decisions issued Tuesday, 3/25/03, the Indiana Supreme Court analyzed the interaction between, and the constitutionality of, two statutes governing lawsuits alleging injuries caused by products (IC 34-20-3-1), and special rules in asbestos cases (IC 34-20-3-2). Here is the main opinion, Allied Signal, et.al. v. Ott, by Justice Sullivan, C.J. Shepard and J. Boehm concurring. J. Dickson dissented in a separate opinion, with J. Rucker concurring.

Posted by Marcia Oddi on October 2, 2009 08:59 AM
Posted to Indiana Law

Thursday, October 01, 2009

Ind. Decisions - Disciplinary ruling in Record case

The ILB has had a number of entries on Terry Record, an Indiana attorney, originally from Evansville, charged in a drunken-driving with fatality case, including this one from June 3rd, headed "Ex-lawyer gets 2 years in deadly DUI, may serve 11 months," and this one from June 18th.

Today the Supreme Court has posted a "Published order accepting consent to discipline and imposing discipline," filed September 29th, that provides:

Facts: On May 6, 2007, Respondent drove his vehicle through a red light and collided with another vehicle. The other driver died of injuries he sustained. Respondent pled guilty on April 15, 2009, to operating a motor vehicle while intoxicated causing death, a class C felony. He was sentenced to four years—two executed and two suspended—with four years of probation following the executed sentence. * * *

Violation: Respondent violated Indiana Professional Conduct Rule 8.4(b), which prohibits committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer.

Discipline: For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of at least 24 months, without automatic reinstatement, beginning the date of this order. 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). If reinstatement is sought, it would likely be granted only with the involvement of and monitoring by the Indiana Judges and Lawyers Assistance Program.

The ILB's Sept. 9th entry on the discipline of Teresa Perry, another young Evansville attorney, charged with meth-related offenses in 2007, is available here.

Posted by Marcia Oddi on October 1, 2009 05:00 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Even more on: "Did an amendment to this year’s state budget open the door to tax refunds for nursing homes across the state?"

Updating this ILB entry from yesterday, another story has turned up, this one from the Sept. 24th Kokomo Perspective, reported by Tim Turner. Each story seems to add a little more information:

Once again, language buried in the state budget bill could cost the county money, but this time the number is close to $2 million.

This time the benefactors of the favorable legislation are for-profit assisted living facilities which, through recent decisions in the Indiana Tax Court, are now considered charitable organizations exempt from paying property taxes. However the organizations have traditionally paid property taxes, so the state legislature decided to allow them to appeal their taxes for the past nine years and get a refund to the tune of $1.9 million in Howard County alone.

The legislation that was passed in Indianapolis applies to all charitable organizations, but none of the traditional not-for-profits have filed for the special exemption. The only ones that have filed are the for-profit companies that are now tax exempt. County assessor Jamie Shepherd does not think state legislators can hide under the guise of trying to help charities.

"I am very disappointed that they are just allowing this," said Shepherd. "If someone came into today and filed a homestead deduction, and they were eligible for that deduction for the past 9 years, there is no law that lets them do that. A judge only has the ability to interpret the law if there is room for interpretation. I know these legislators get these decisions from the tax courts, at least the local ones, because I forward the decisions to them all and tell them how they will affect Howard County specifically. To me, it is their responsibility to make sure that if that is the way they want the law interpreted that is fine, but it is their job to make sure there is no gray area. Once again it was buried in the budget bill."

In fact, state representative Ron Herrell was unaware that the language was in the budget bill and that it would have this effect on local government. But Herrell, unlike his Republican counterparts in Howard County, did not vote for the budget bill.

"We already see the struggles our governments are having with the tax caps and things like that. Combined with these hardships, it is just another reason I didn't vote for the budget," said Herrell.

A billboard on US 31 accuses Herrell of blocking progress in Indiana, but this change could stop the progress of the in-roads made on personal property tax relief for homeowners across the state.

These for-profit assisted living facilities will continue to get this exemption, which will raise taxes on all the other taxpayers, and there could be a one-time jump to cover the $1.9 million the county will have to pay back.

The county could avoid making cuts by certifying a lower assessed value in the county because of these facilities. Traditionally the auditor certifies the total assessed value of property in the county lower than it actually is because of property tax levy appeals. She has the authority to certify the assessed value two percent less than its actual value in anticipation that the appeal will be granted. When she lowers that assessed value, it raises the tax levy that everyone else pays. Meaning taxpayers could pay for the check the county writes to these assisted living facilities.

Posted by Marcia Oddi on October 1, 2009 04:27 PM
Posted to Indiana Law

Courts - "We Are Devoting Too Many of Our Best Minds to’ Lawyering"

From the WSJ Law Blog today, this gem, from Justice Scalia and C-SPAN.

Posted by Marcia Oddi on October 1, 2009 11:07 AM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 11 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Xingya Liu and Ximing Huang v. City of West Lafayette (NFP) - "Xingya Liu and Ximing Huang (collectively, the Landlords) appeal the trial court's grant of summary judgment and judgment in favor the City of West Lafayette (the City) in the City's action alleging that the Landlords' four-bedroom rental house in West Lafayette was over-occupied during the 2006-2007 Purdue University academic year in violation of a West Lafayette ordinance limiting occupancy of rental houses to three unrelated persons. * * *

"In Oct. 2006, the Landlords took all five tenants out to dinner for the Landlords' annual dinner with their tenants. Five vehicles were parked at the house every day, and five names were on the mailbox at the front of the house. The Landlords never checked out these signs of overoccupancy. This evidence supports the trial court's conclusion that the Landlords were not diligent in monitoring their property, and the trial court did not err in entering judgment in favor of the City."

Kathleen Grothe v. Young Park (NFP) - "The trial court did not abuse its discretion by making an unequal division of the marital assets. Moreover, we deny Park’s request for appellate attorney fees. We affirm."

NFP criminal opinions today (9):

J.M. v. State of Indiana (NFP)

Ronnie T. Miles v. State of Indiana (NFP)

Jeffery Zenthofer v. State of Indiana (NFP)

A.E. v. State of Indiana (NFP)

B.P. v. State of Indiana (NFP)

Randall Carr v. State of Indiana (NFP)

Rashad Hassan v. State of Indiana (NFP)

Rashad Hassan v. State of Indiana (NFP)

Jamarcus L. Sims v. State of Indiana (NFP)

Posted by Marcia Oddi on October 1, 2009 10:51 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court issues two today, denying petitions for rehearing

In Jamestown Homes of Mishawaka, Inc. v. St. Joseph County Assessor, a 7-page opinion, Judge Fisher writes:

On July 24, 2009, this Court issued an opinion in the above-captioned case. In that opinion, the Court affirmed the Indiana Board of Tax Review's (Indiana Board) final determination that held that Jamestown Homes of Mishawaka, Inc. (Jamestown) was not entitled to a property tax exemption on apartments it leased to low/moderate income individuals for below-market rent. See Jamestown Homes of Mishawaka, Inc. v. St. Joseph County Assessor, 909 N.E.2d 1138 (Ind. Tax Ct. 2009). On August 21, 2009, Jamestown filed a Petition for Rehearing (Petition), pursuant to Indiana Appellate Rule 63, requesting the Court reconsider its holding. * * *

In a case where the question to be answered was whether low-income housing was property used for a charitable purpose, Jamestown did little more than state that the provision of low-income housing is a charitable purpose.[3] Consequently, the Court DENIES Jamestown's Petition.
______
3 In presenting its case, Jamestown operated under the belief that this Court had already ruled that the provision of affordable housing for low-income persons was property used for a charitable purpose. See Jamestown Homes of Mishawaka, Inc. v. St. Joseph Co. Assessor, 909 N.E.2d 1138, 1142 n.9 (Ind. Tax Ct. 2009). As this Court pointed out, however, it never made such a ruling. See id.

In Oaken Bucket Partners, LLC v. Hamilton County Property Tax Assessment Board, et al, a 6-page opinion, Judge Fisher writes:

The Court, having reviewed the PTABOA's petition and Oaken Bucket's response thereto, now grants the PTABOA's petition for the sole purpose of clarifying its decision in the above-captioned case. * * *

The Court therefore stands by its decision in Oaken Bucket in its entirety.

Posted by Marcia Oddi on October 1, 2009 10:42 AM
Posted to Ind. Tax Ct. Decisions

Ind. Courts - "Restructuring state courts"

The Fort Wayne Journal Gazette has an editorial today on the Indiana Judicial Conference's 27-page plan to improve the Indiana system of justice.

(See also this Sept. 17 ILB entry including a link to the 27-page plan, and this ILB followup from Sept. 18th, including an answer to the question: "Okay, what is the Indiana Judicial Conference?")

From the side-bar to today's editorial, a summary of the report's recommendations:

The Indiana Judicial Conference report recommends the following changes in the state’s judicial system:

• All judges would be chosen under the same method.

• Courts would be divided into districts and reorganized. The distinction between circuit and superior courts would be eliminated.

• The state would fully fund the court system.

• The county clerk’s duties would change, giving the courts more responsibility for record-keeping.

• Standards for ongoing education would be higher for judges.

From the editorial:

A panel of Indiana judges has recommended significant and far-reaching changes in the state’s judicial system, including several that would bring welcome improvements.

The biggest changes would require legislative approval and will likely spur much debate among both lawmakers and individual judges, largely over control.

A committee of nine judges – including Allen Circuit Judge Thomas Felts and Allen Superior Court Judge Fran Gull – developed the recommendations on behalf of the state’s judiciary in a white paper titled “A Blueprint for Excellence and Greater Accountability: Enhanced Access to Justice in Indiana’s Judicial System.” All the recommendations deserve serious consideration, and some clearly should be adopted.

Probably the easiest to advance – and the least controversial – would increase requirements for judges’ ongoing education and set higher qualification standards for court staff.

One overdue and important step would eliminate the patchwork process to select judges that differs widely between counties and mandate a uniform system that eliminates party affiliations and elections. The governor would appoint new judges from a panel selected by bipartisan community commissions, and incumbent judges would face retention votes from citizens. Strict limits would be placed on how judges raise campaign money.

“This could virtually eliminate the negative perception resulting from fundraising from lawyers who practice before the judge and other negative influences of money,” the committee notes in its 27-page report detailing the recommendations.

The proposal would change the fragmented structure of circuit courts, superior courts, probate courts, small claims courts and city and town courts to establish one level of trial courts.

A system that now includes judges, referees, magistrates and court commissioners would have only judges and magistrates, and the magistrates would answer more clearly to trial court judges.

The use of “pro tem” judges – lawyers who serve as temporary judges – would rightly be minimized.

More from the editorial:

Other recommendations deserve further study and will likely face roadblocks.

One of the most significant would replace the system of county-level courts with geographic districts. Some large counties, including Allen, could be districts unto themselves, but others would cross county lines, diffusing power and responsibility. Another would transfer responsibility of record-keeping from the clerk of courts – an elected position – to the courts themselves.

And the report calls for the state to take over financing of the courts system, a move that would please some county officials who complain about the costs of courts on property taxes.

These measures could increase efficiency but also transfer some responsibility from local elected officials to appointed judicial officials. Any such move should be taken with great scrutiny that includes a careful examination of unintended consequences.

The report, issued two weeks ago, in many ways recommends for the courts the same type of modernization and improvements the Kernan-Shepard Commission recommended for Indiana local governments. Like the Kernan-Shepard report, the judicial white paper is likely to stir debate and opposition that is too often centered on protecting turf rather than on what is best for Hoosiers.

The recommendations should spur discussion, formal proposals and – most importantly – action to improve the judiciary.

Posted by Marcia Oddi on October 1, 2009 09:41 AM
Posted to Indiana Courts

Law - Still more on: Maintaining governmental emails in Boston and elsewhere

Updating this ILB entry from Sept. 17th, which started with the Boston Globe's report "about a high level city employee who routinely deleted his emails," the City of Boston has now created a webpage titled "City of Boston Email Policy and Reporter's Guide," which includes much material useful to other cities.

Posted by Marcia Oddi on October 1, 2009 09:34 AM
Posted to General Law Related

Ind. Courts - More today on: A bizarre story this afternoon involving the wife of a Marion Superior Court judge

Updating this ILB entry from July 1st, Jon Murray of the Indianapolis Star reports today that the "Forgery case will need a new special prosecutor," because:

A special prosecutor appointed to handle a politically sensitive forgery case because of Marion County prosecutors' conflict of interest now has one of her own.

Judith Johnson, a deputy prosecutor in Clinton County, has accepted a job as a deputy prosecutor with the Marion County office, which recused itself in June.
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The case involves a judge's wife who could face criminal charges on an accusation she forged the signature of another judge in an attempt to prevent a home foreclosure.

Now, the case likely will need a new special prosecutor, who would be appointed by Special Judge Jane Spencer Craney of Morgan County. * * *

Johnson had not yet announced a decision on whether Kristina Nelson, the wife of Marion Superior Court Judge William Nelson, will face criminal charges.

Kristina Nelson, 43, was accused in June in police and court documents of forging the signature of another Marion County judge -- Sheila A. Carlisle, her sister-in-law -- on a fake court order and sending it to a mortgage company as part of an elaborate ruse to stop a home foreclosure.

Posted by Marcia Oddi on October 1, 2009 09:26 AM
Posted to Indiana Courts

Ind. Decisions - Still more on "N.J. man asks Indiana court to reconsider recent ruling regarding twins born to surrogate"

Updating yesterday's ILB entry, Tim Evans has this story today in the Indianapolis Star, headed "Twins' adoption must be redone." Some quotes:

The Indiana Supreme Court has reaffirmed its earlier decision that a New Jersey man who adopted twin girls from an out-of-state surrogate mother must complete a second adoption process.

The court said in April that the girls -- born at Methodist Hospital in Indianapolis -- could remain in New Jersey with Stephen F. Melinger, 62, while he goes back through the adoption process. The new order does not appear to change that. * * *

It's unclear what interaction New Jersey child welfare officials have had with Melinger.

Lauren Kidd, spokeswoman for the New Jersey Department of Children and Families, said state and federal confidentiality rules prohibit her from commenting about individual cases or even confirming whether the agency has had any contact with Melinger or the girls. * * *

The Supreme Court ruling issued Wednesday also raised questions about the children's current status.

The new Supreme Court order states: "New Jersey's child protection authorities have initiated a CHINS proceeding and removed the children from (Melinger)."

Litz said he doesn't know where the court got that idea, but he said it's wrong.

"He still has the girls," [his attorney, Steven Litz] said. "Steve's always had the girls."

Kathryn Dolan, public information officer for the Division of State Court Administration, said she did not know, and could not comment on, where the justices received the information that the children had been removed.

Posted by Marcia Oddi on October 1, 2009 09:19 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Ind. court says no warrant needed for DNA test"

Yesterday's 2-1 COA decision in Arturo Garcia-Torres v. State of Indiana (ILB summary here) is the subject of a brief AP story today.

Posted by Marcia Oddi on October 1, 2009 09:14 AM
Posted to Ind. App.Ct. Decisions

Courts - Still more on the McDonald v. Chicago cert grant

Several of the stories I've read today indicate that McDonald v. Chicago is a different case than NRA v. Chicago.

Here is the Supreme Court docket for McDonald v. Chicago (08-1521), indicating 7th Circuit case nos. (08-4241, 08-4243, 08-4244).

Here is the June 2, 2009 7th Circuit opinion in NRA v. Chicago: Nos. 08-4241, 08-4243 & 08-4244.

A more recent 7th Circuit ruling about which I've seen nothing in the press was Justice v. Town of Cicero (ND Ill), written by Judge Wood (joined by Judges Tinder and Bauer), issued August 14th. Read the ILB summary here.

Posted by Marcia Oddi on October 1, 2009 08:32 AM
Posted to Courts in general

Courts - The new Supreme Court, 2009 - 2010

This USA Today story features a cool photo galley of all the justices - and each photo can be expanded for more information.

Posted by Marcia Oddi on October 1, 2009 08:23 AM
Posted to Courts in general

Courts - More on the McDonald v. Chicago cert grant

Updating yesterday's ILB entry headed "Courts - The SCOTUS has granted cert in a number of cases, including an Indiana federal case," there are a number of good stories today on the Chicago gun case grant.

Topping the list is this analysis by Lyle Denniston of SCOTUSblog, headed "Making Rights Grow." Some quotes:

The Supreme Court has a few ways of recognizing — one might say “creating” — new constitutional rights, but it has one that it has not used for 30 years. When that technique was last used, John Paul Stevens was the junior Justice, he was just days away from his 59th birthday, and he was already, in his fourth year, marking a distinctive path of his own as a member of the Court. The decision handed down on that April day in 1979 was Burch v. Louisiana.

It is not really one of the great cases (it takes up only a handful of pages in the United States Reports). But Burch, by scholarly reckoning, marked the last time the Supreme Court told the states that they would have to obey a part of the Bill of Rights, originally added to the Constitution in 1791 to restrain the powers of the national government. * * *

On Wednesday, the Court embarked on what is, for every Justice except Stevens, an entirely new constitutional adventure: deciding whether another part of the Bill of Rights is to be broadened so that it curbs state, county and city laws, and not just those enacted at the federal level.

Adam Liptak of the NY Times writes:

The gun-control case, McDonald v. Chicago, No. 08-1521, addresses a question that was left open last year when the court decided that the Second Amendment protects an individual right to own firearms rather than a collective right tied to state militias.

Last year’s decision, District of Columbia v. Heller, concerned only federal laws, and struck down parts of the gun control law in the District of Columbia, a federal enclave. The court ruled that the law violated the Second Amendment by barring law-abiding people from keeping guns in their homes for self-defense.

From Warren Richey's story in the Christian Science Monitor:

The justices announced Wednesday that they will hear an appeal in McDonald v. City of Chicago challenging a handgun ban in Chicago. Gun owners in the city questioned the constitutionality of the ban, citing the Supreme Court's June 2008 decision, in a case called District of Columbia v. Heller, overturning a similar handgun ban in Washington, D.C.

The same lawyer, Alan Gura of Alexandria, Va., who successfully argued the Heller case at the high court is also set to argue the McDonald case.

An appeals court ruled in the Chicago case that the city's handgun ban did not violate the Constitution because the Supreme Court had not yet declared whether its decision in the Heller case established a fundamental right to guns applicable throughout the US.

Since Washington is a federal enclave, the Heller decision left open the question of whether the landmark ruling would also invalidate handgun and other weapons bans enacted by city governments such as Chicago.

The Chicago case hinges on an important feature of constitutional history. When first enacted, the Bill of Rights provided protection against encroachments on individual liberty by the national government. For example, the First Amendment says that Congress shall make no law abridging the freedom of the press. However, it said nothing about restrictions enacted by a state legislature.

Later, however, most of the protections of the Bill of Rights were extended to apply to state and local governments as well as the national government. The question the Supreme Court has now agreed to answer is whether Second Amendment protections of gun rights also apply to state and local governments.

There are two ways those protections might be applied to the states through the 14th Amendment, which is the recognized vehicle for incorporating constitutional rights to the states. One way is through the due process clause of the 14th Amendment. The other is through the privileges and immunities clause, also of the 14th Amendment.

In upholding the Chicago handgun ban, the appeals court in Chicago cited Supreme Court decisions dating from the late 1800s that the Second Amendment applied only to the national government.

More recently, the high court has adopted a different approach when applying constitutional rights to the states. But the appeals court in the Chicago case did not attempt to apply the high court's more recent approach. Instead, the judges insisted that it was up to the Supreme Court, not the lower courts, to decide such a fundamental issue.

In the Washington Post, a story by Mark Sherman of the AP.

Posted by Marcia Oddi on October 1, 2009 07:53 AM
Posted to Courts in general

Wednesday, September 30, 2009

Ind. Law - More on: "Did an amendment to this year’s state budget open the door to tax refunds for nursing homes across the state?"

Updating this ILB entry from earlier today, I've tried my hand at reading SECTION 479. Here is what I've come up with. If you have a different take, let me know. (None of this will make any sense, of course, if you haven't read this entry and this one):

What does SECTION 479 do?

(a) It applies to any "entity" that failed to file a timely application for an exemption under IC 6-1.1-10-16, or to sufficicently justify such an application, for any assessment date after March 1, 2000.

And it applies to any part of the entity's property that would have qualified for the IC 6-1.1-10-16 exemption (as property owned, occupied, and predominantly use for a charitable purpose) if the application had been timely filed.

(b) An entity described in subsection (a) may, before September 1, 2009, file or refile with the county assessor an application for a property tax exemption under IC 6-1.1-10-16 for an assessment date occurring after March 1, 2000, and before March 1, 2010. (So the time to file under this SECTION has already passed, there was a brief two-month "window" that somehow a number of people knew about.)

(d) Part of this subsection (d), starting with "During the pendency ..." might be read to mean that if you apply under this SECTION 479 (presumably during the two-month window), you can't be dunned for the taxes (and remember these include taxes back to 2000), and no action may be taken to sell the property at tax sale, during the pendency of the proceedings, whether in the end you qualify or not. Furthermore: "No interest or penalty shall be imposed on any tax liability remaining after the application of the exemption for any period before the taxes are due as provided in this subsection."

Posted by Marcia Oddi on September 30, 2009 07:44 PM
Posted to Indiana Law

Ind. Courts - More on: DOJ Files Lawsuit Against Indianapolis Law Firm to Enforce the Employment Rights of Indiana Army National Guardsman

Remember this story from March 16th? The DOJ put out this release:

WASHINGTON, March 16 /PRNewswire-USNewswire/ -- The Department of Justice today filed a lawsuit in U.S. District Court in Indianapolis on behalf of Mathew B. Jeffries, an Indiana National Guard member, against the Indianapolis law firm of Mike Norris & Associates, alleging that the law firm refused to promptly reemploy Jeffries in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

Today the DOJ has issued a new release that begins:

WASHINGTON – The United States has entered into a consent decree with the Indianapolis law firm of Mike Norris & Associates that, if approved in federal court in Indianapolis, will resolve the Justice Department’s March 16, 2009, complaint on behalf of an Indiana National Guardsman alleging that the law firm violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), the Justice Department announced today. Under the terms of the consent decree, the law firm must provide the National Guardsman, Mathew B. Jeffries, with $40,000 to compensate him for his lost wages and accrued interest.

Posted by Marcia Oddi on September 30, 2009 06:05 PM
Posted to Courts in general

Ind. Decisions - More on "N.J. man asks Indiana court to reconsider recent ruling regarding twins born to surrogate"

Updating this ILB entry from May 9, 2009, in which the Indy Star is quoted as reporting:

A New Jersey man has asked the Indiana Supreme Court to reconsider its unanimous ruling overturning his adoption of twin girls born in Indianapolis.

The justices sent the case back to Hamilton Superior Court last month with orders to review the adoption in line with interstate adoption rules. The 4-year-old girls will remain with Stephen F. Melinger, 62, in the meantime.

The Supreme Court late yesterday issued this Published Order Denying Rehearing.

Of particular note from the Order is this paragraph:

Counsel’s petition also asks that we give directives on the multiple motions, requests, and objections recently filed in the trial courts by both parties. These seem to have been prompted partly by our ruling in this appeal and partly by the fact that New Jersey’s child protection authorities have initiated a CHINS proceeding and removed the children from Petitioner’s care.

Posted by Marcia Oddi on September 30, 2009 04:44 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

For publication opinions today (3):

In Arturo Garcia-Torres v. State of Indiana , a 26-page, 2-1 opinion, Judge Bradford writes:

Appellant/Defendant Arturo Garcia-Torres appeals from his convictions for Rape, two counts of Burglary, and Attempted Rape, all as Class B felonies. Concluding that (1) the taking of a cheek swab for purposes of extracting a DNA profile is a search requiring reasonable suspicion, and not probable cause, under the Indiana and federal constitutions; (2) police had reasonable suspicion to take a cheek swab from Garcia-Torres; (3) the taking of a cheek swab is not subject to the advice-of-counsel requirements of Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975); (4) the DNA evidence obtained from Garcia-Torres was not inextricably bound to his suppressed confession; and (5) the charges against Garcia-Torres were properly joined, we affirm. * * *

On the question of whether the trial court abused its discretion in admitting evidence generated by the cheek swab performed on Garcia-Torres, we conclude that was justified under the Fourth Amendment by the existence of reasonable suspicion. We further conclude that cheek swabs performed for the purpose of obtaining a DNA sample, while searches under Article I, Section 11, of the Indiana Constitution, are not subject to the advice requirements of Pirtle. Finally, we conclude that the DNA evidence was not inextricably bound to Garcia-Torres‘s confessions that were suppressed on other grounds. The trial court, therefore, did not abuse its discretion in admitting evidence related to the DNA profile obtained through the cheek swab.

On the question of whether the trial court correctly allowed the State to join all of the charges against Garcia-Torres, we conclude first that the charges were not joined solely on the basis that they were of the same or similar character. The totality of the evidence regarding the manner in which the crimes were committed, along with the discovery of Garcia-Torres‘s DNA at both scenes, constitutes a signature sufficient to establish a ―series of acts connected together‖ for purposes of Indiana Code section 35-34-1-9(a). Moreover, we conclude that Garcia-Torres has failed to establish that the trial court abused its discretion in declining to sever the charges against him.

The judgment of the trial court is affirmed.

BROWN, J, concurs.
CRONE, J., dissents with opinion. [with an opinion that begins, at p. 20] I believe that the taking of a cheek swab from a custodial suspect for purposes of extracting a DNA profile is a search requiring probable cause under the Fourth Amendment and is subject to the advice-of-counsel requirements of Pirtle. As such, I conclude that the trial court committed reversible error in admitting the DNA evidence obtained from Garcia-Torres‘s cheek swab in this case. Also, I believe that Garcia-Torres was entitled to severance of the charges against him as a matter of right. Therefore, I respectfully dissent.

In Kenneth Brown v. State of Indiana , a 20-page, 2-1 opinion, Judge Robb concludes:

The knock and talk investigation did not violate Brown's rights under the Fourth Amendment to the United States Constitution or Article 1, section 11 of the Indiana Constitution. The search of Brown's residence did not violate either Constitution because Brown was not in custody and he voluntarily consented to the search. Therefore, the trial court properly admitted the drugs and paraphernalia. Brown's convictions are affirmed.

DARDEN, J., concurs.
MATHIAS, J., dissents with opinion. [which begins, at p. 16] I respectfully dissent from the majority's conclusion that the knock and talk investigation and resulting search of Brown's residence were reasonable and not in violation of Article 1, Section 11 of the Indiana Constitution.

As our court has observed, the knock and talk procedure "'pushes the envelope' and can easily be misused." Hayes v. State, 794 N.E.2d 492, 497 (Ind. Ct. App. 2003), trans. denied. "Knock and talk might more aptly be named 'knock and enter,' because it is usually the officer's goal not merely to talk but to conduct a warrantless search of the premises."

In Paternity of S.G.H.; C.M. v. D.M. , a 10-page, 2-1 opinion, Judge Friedlander concludes:

We reverse the trial court’s order to the extent it requires a twenty percent change in the support obligation before awarding a portion of the windfall bonus as child support. On remand, the trial court shall calculate the appropriate amount of support due as a result of the recent windfall bonus. While ultimately within the trial court’s discretion, we observe that application of one of the methods suggested in the Guidelines may be helpful in this regard. Judgment reversed and remanded.

RILEY, J., concurs.
BAKER, C.J., dissents with separate opinion. [which begins, at p. 8] Although I concur with the result reached by the majority on the abatement issue, I respectfully dissent from its conclusion regarding the semiannual windfall bonuses.

NFP civil opinions today (5):

Melissa Ungar v. Don Hitchcock and Jean Hitchcock (NFP) - "Melissa Ungar appeals a trial court judgment denying her claims for monetary and injunctive relief against her neighbors, Don and Jean Hitchcock, for the alleged encroachment of their deck on her property. The dispositive issue is whether the trial court erred in concluding that Ungar failed to meet her burden of establishing that the Hitchcocks encroached on her property by constructing their deck in violation of the local zoning ordinance. We affirm."

B.C. v. L.L. (NFP)

Term. of Parent-Child Rel. of J.G., T.G., and V.G.; J.G. v. IDCS (NFP)

Rudolfo G. Rodriguez, Jr. v. Rainbow Searchers, Inc. (NFP) - "Appellant-Defendant Rudolfo Rodriguez, Jr. appeals the trial court’s denial of his request for attorney’s fees from Appellee-Plaintiff Rainbow Searchers, Inc., following remand by this court for a determination on the matter. We affirm."

Lawrence Tolley v. Review Board, and Mariane, Inc. (NFP) - "Tolley agrees that he filed his appeal on April 17, at least three days after the statutory deadline had passed. Prior cases strictly construe statutory time prerequisites to require dismissal in the case of untimely appeals. See, e.g., Szymanski v. Review Bd. of the Ind. Dep’t of Workforce Dev., 656 N.E.2d 290, 293 (Ind. Ct. App. 1995). The Review Board properly dismissed Tolley’s appeal."

NFP criminal opinions today (6):

Lisa M. Tibbs v. State of Indiana (NFP)

Erick Corey Morris v. State of Indiana (NFP)

Christopher M. Hickey v. State of Indiana (NFP)

Edward E. Jemison v. State of Indiana (NFP)

Oleksander Pushkarovych v. State of Indiana (NFP)

Chris Freeman v. State of Indiana (NFP)

Posted by Marcia Oddi on September 30, 2009 01:26 PM
Posted to Ind. App.Ct. Decisions

Ind. Law - "Did an amendment to this year’s state budget open the door to tax refunds for nursing homes across the state?"

Following up on this ILB entry from Sept. 24th, quoting from a story by Jennifer Tangeman of the Logansport Pharos-Tribune, today the Fort Wayne Journal Gazette has this story, by Amanda Iacone, headed "Exemption for charity roils budget: For-profits seek tax break, too."

After last week's story, I'd hoped to learn some specifics, but so far that hasn't been the case. The Association of Indiana Counties is meeting this week, and I've heard the assessors are talking a lot about this, but no details. Can you help?

From today's JG story:

A section in the state budget has caused confusion on whether for-profit hospitals and nursing homes are exempt from property taxes.

At stake in Allen County is an estimated $30 million in back taxes and a possible future shift in how local government is funded. But a local state lawmaker said there should be no confusion, because lawmakers did not give businesses a break from property taxes.

The budget measure, which took effect this summer, gave charitable organizations until September to seek exemptions from property taxes and to recoup any taxes they paid during the past nine years if they were eligible for exemption during that time.

Nursing homes and hospitals have filed, too, hoping to be considered charities

In Allen County, exemptions were filed for more than 700 properties worth an estimated $1.5 billion in assessed value, according to the assessor’s office.

“It’s definitely a concern,” Assessor Stacey O’Day said. “This is huge.”

In addition to numerous nursing homes, exemption paperwork has been filed for the three hospitals owned by Lutheran Health Network. Parkview Health System’s two hospitals are already exempt from property taxes.

For-profit Lutheran is one of the top-paying property owners in the county with a $4.5 million tax bill this year. Reducing its share of property taxes could place more burden on other taxpayers.

But Chief Executive Officer Mike Schatzlein said the network’s accountants filed the paperwork to protect the company in case its charity care could help shrink its tax bill, not eliminate it. The company sought no more than 5 percent reimbursement, and the move was not meant to alter the business’s operating strategy, he said.

“People need to be aware of what’s at stake,” O’Day said. “This could affect everybody, because the burden will shift.”

State law defines which classes of properties are eligible to be exempt from property taxes. Schools, churches and charitable organizations like the YMCA are all exempt. The law also allows some health centers and homes for the aged who give charity care to be exempt.

But charities and non-profits sometimes miss filing deadlines or make mistakes on the paperwork and are denied their exemptions.

Over the years, the state legislature has periodically given those charities a reprieve, and the law passed this year aimed to be a permanent fix for those organizations – an idea urged by many legislators, said Rep. Jeff Espich, R-Uniondale.

In Allen County, not all of the 700 properties will qualify as a charitable organization. The county’s property tax assessment board of appeals will decide whether properties meet that definition and are exempt, O’Day said.

The word “charitable” is open to interpretation, and county officials are trying to understand what it means under state law, she said.

County officials plan to take their time in making those decisions in part because state lawmakers might change the law, O’Day said.

Espich said he is upset by what he’s hearing and doesn’t believe lawmakers created a loophole. But he’s ready to fix the problem and clear up any ambiguities, he said.

“I don’t know how these nursing homes believed they deserved that. Because our legal experts tell me that’s not true,” he said of the sought-after exemptions. “We tend to believe that some eager CPA firm or law firm or both has found this as a way they might in fact offer their services and/or secure clients.”

In my entry last week I wrote:

Where is this alleged exemption language? I've looked through the massive "budget" bill, HEA 1001ss. So far, the only thing that looks to be close is SECTION 479, a noncode provision.

But I wasn't at all sure this was it, because I didn't read it as applicable to for profits. Today's JG story quotes the same section, but I don't know how they came upon SECTION 479.

MORE about SECTION 479: This is a non-code section, meaning, as I have written many times before, that it will not be printed in the Indiana Code and will not be generally accessible to the public. It is available in this 511-page "budget bill" enacted at the last day (June 30) of the 2009 special session. It begins on p. 486.

For your convenience, I have extracted pp. 486-487 and posted them here.

MORE LATER

Posted by Marcia Oddi on September 30, 2009 11:36 AM
Posted to Indiana Law

Ind. Decisions - "Hospital rezoning opponents lose appeal" [Updated]

Yesterday's Court of Appeals decision in the case of Liberty Landowners Assn. v. Porter County Commissioners, et al (ILB summary here - 2nd case) is the subject of a story today in the Gary Post Tribune:

The homeowners' association trying to block Porter hospital from building at its new site has lost its appeal to the state.

Liberty Landowners Association had sued the Porter County commissioners and Northwest Indiana Health Care System, which owns the hospital, to keep them from building a new facility at the northwest corner of U.S. 6 and Indiana 49. Porter County Judge A. James Sarkisian ruled in April against the association, which represents property owners in Liberty Township, saying that because the association does not own land in the area, it didn't have the right to sue.

The Indiana Court of Appeals upheld that ruling Tuesday. According to its opinion, previous attempts by land associations have not been valid because of the same reason, and Liberty Landowners did not distinguish itself from those previous groups.

Liberty Landowners was established in 1983 as a not-for-profit group to protect local rural life. Members were concerned that the new hospital would bring other businesses, such as pharmacies and fast food restaurants.

According to Indiana law, only landowners who have property near land being rezoned have the right to appeal, the opinion said.

The Porter County commissioners agreed in February 2008 to rezone the 75 acres from residential to institutional. The new hospital is meant to replace the current facility in Valparaiso.

[Updated] The Chesterton Tribune now has posted a long story by Vicki Urbanik on yesterday's decision. Some quotes:

The Liberty Landowners Association has lost its appeal of a county court ruling that found that the citizen group doesn’t have the legal standing to try to block Porter Health System from building its new hospital at U.S. 6 and Ind. 49.

In a ruling Tuesday, the Indiana Court of Appeals concurred with a decision by Porter County Circuit Court Judge Pro Tem James Sarkisian, who in April dismissed the Liberty Landowners’ lawsuit against the Porter County Commissioners and the hospital, known in the case as Northwest Health System.

The landowners filed suit after the county commissioners’ 2-1 decision to rezone the Liberty Township parcel from Residential to Institutional, arguing that the new zoning violated the county’s Unified Development Ordinance.

Sarkisian found that because the Liberty Landowners do not own adjoining property to the hospital site, they lack legal standing to sue over the rezoning.

The court of appeals concurred. “With regard to zoning cases, it is well settled that standing to challenge a rezoning ordinance requires a property right or some other personal right and a pecuniary injury common to the community as a whole,” the appeals court ruling says.

The ruling cites two local cases that involved the issue of standing and what constitutes an “aggrieved party.”

In a case involving Beverly Shores resident George Bagnall and the town of Beverly Shores, the Indiana Supreme Court found that a person must be “aggrieved” in order to have standing to seek judicial review of a board of zoning appeals’ decision, and that to be aggrieved, a person must experience a “substantial grievance” that involves the loss of personal or property right.

In the 1989 case involving Charlotte Robertson’s legal fight with the Chesterton Board of Zoning Appeals over the Lake Erie Land development, the Court of Appeals found that a party seeking to petition the courts on behalf of a community “must show some special injury other than that sustained by the community as a whole.”

Tuesday’s decision cites other cases, such as one heard by the Indiana Supreme Court, which found that a landowner whose property line was less than a mile from a proposed confined animal feeding operation was found to not meet the definition of an “aggrieved party.”

In its appeal, the Liberty Landowners argued that its claim challenging the rezoning complies with the “public standing doctrine,” which is an exception to the general requirement that a plaintiff must have a specific interest in the outcome of a case. However, the Court of Appeals said that the landowners did not raise this public standing issue during the trial court and thus waived the issue. Even with public standing, the court ruled, claimants must still have some property right or pecuniary interest.

The court concluded that the Liberty Landowners do not own property, pay no taxes, and have no legal right that has been put into jeopardy by the commissioners’ rezoning decision. “In other words, Liberty Landowners has not alleged any direct harm and has not been denied any rights,” said the court ruling.

This morning, the Liberty Landowners’ attorney, Martin Lucas, said the landowners can now opt for a rehearing before the Court of Appeals or seek to transfer the case to the Indiana Supreme Court. He said he does not yet know if the landowners will opt to continue the case but did say that the time period for them to act is relatively short before Tuesday’s ruling becomes final.

Posted by Marcia Oddi on September 30, 2009 11:32 AM
Posted to Ind. App.Ct. Decisions

Courts - The SCOTUS has granted cert in a number of cases, including an Indiana federal case

Includng three from the 7th Circuit, one on the right to bear arms and its application to ordinances prohibiting possession of handguns in the home, and one on ex post facto implications of the Sex Offender Registration and Notification Act’s enactment. The third is on the deadline for filing certain EEOC charges.

Check the comprehensive list from the SCOTUSlaw Blog here.

[I'll be adding more to this entry during the day.]

"Supreme Court returns to firearms fray" reports Joan Biskupic in USA Today. From the story:

WASHINGTON — The U.S. Supreme Court announced Wednesday it will return to the controversy over individual gun rights by hearing an appeal from a group of firearms owners in Chicago.

They are challenging a lower appeals court ruling that said the Second Amendment guarantees an individual right to guns only in the face of federal regulation, not against state and municipal restrictions.

Included among 10 new disputes the justices added to their calendar Wednesday for the upcoming 2009-10 term, which begins next Monday, the guns case brings the court back to a sensational topic that pits uniquely American notions of frontier liberty against contemporary worries over urban violence. * * *

The new dispute began in Chicago, which has a handgun ban similar to a Washington, D.C., ordinance that the Supreme Court struck down in June 2008 as a violation of the Second Amendment. In the 2008 case, District of Columbia v. Heller, the Supreme Court for the first time declared an individual right to firearms for self-defense and rejected a prevailing lower court view that the Second Amendment applied only to state "militia," such as National Guard units.

But the 5-4 decision left open a crucial question that could have more practical consequences for gun owners and for the states that would regulate them: Does the Second Amendment apply to the states and localities as it does to federal jurisdiction of Washington, D.C.?

Because the Supreme Court has so rarely taken up Second Amendment cases, the amendment's coverage in the states has never been fully determined — unlike the breadth of many of the other of the first 10 amendments to the Constitution, known as the Bill of Rights.

Thirty-four states [ILB - including Indiana] had asked the Supreme Court to take up the gun advocates' appeals and a separate one filed by the National Rifle Association against Chicago. (The justices did not act on that petition Wednesday.) Led by Texas state lawyers, 33 of the 34 states said in a joint filing, "Without this court's review (of the Chicago cases), millions of Americans may be deprived of their Second Amendment right to keep and bear arms." California separately urged the court to take the Chicago disputes. * * *

Chicago adopted its handgun ban in 1982, city officials told the high court, because of a rise in firearms-related deaths and because officials believed handguns were playing "a major role in the commission of homicide, aggravated assaults and armed robbery."

The legal dispute specifically tests whether the Second Amendment — written more than two centuries ago to cover only the federal government — may be extended to the states, as the First Amendment and many other protections of the Bill of Rights have been through 20th Century court rulings.

The U.S. Court of Appeals for the 7th Circuit, which covers Illinois, Wisconsin and Indiana, said the Second Amendment does not apply to the states. The appeals court stressed that the historical view of the Supreme Court was the amendment restricted the powers of the federal government. * * *

The case, McDonald v. City of Chicago, is likely to be scheduled for January. A decision would come before the end of the term in late June 2010.

Here are other ILB entries on this case.

"Court to decide if sex offenders who didn't register in past can get enhanced penalties now" reports the AP in a brief story. The case is Carr v. United States. From the story:

The Supreme Court will decide whether sex offenders who didn't register with state officials before harsher punishments went into effect can still be sentenced to extra time in prison. * * *

[T]he 7th Circuit Court of Appeals in Chicago said that when the law was passed, Congress did not say it did not apply retroactively. Other courts have said that the law — SORNA — cannot be applied retroactively.

The WSJ Law Blog has posted this entry on the Supreme Court's decision to hear the Chicago gun case, headed "Gaga Over Gun Control: High Court to Hear Second Case."

[More] Thomas v. Carr, the sex offender case, is out of the ND Indiana. See this ILB entry from Dec. 22, 2008, headed "7th Circuit decides two Indiana cases today, in one opinion ."

Posted by Marcia Oddi on September 30, 2009 11:01 AM
Posted to Courts in general

Law - "Inflation Conversion Factors for Dollars -- 1774 to Estimated 2019"

This very useful website is the work of Robert Sahr, Associate Professor of Politcal Science at Oregon State University.

If you are overwhelmed by all the information, take a look at this 20-page PDF chart of the conversion factors.

This set of charts headed "Millionaires Then and Now" is a favorite.

Posted by Marcia Oddi on September 30, 2009 09:01 AM
Posted to General Law Related

Ind. Law - Two stories on Indiana meth laws

This very long story by Lisa Trigg in the Terre Haute Tribune Star, from Sept. 3rd, is headed "Wabash Valley woman didn’t realize second cold medicine purchase violated drug laws." Some quotes:

CLINTON — When Sally Harpold bought cold medicine for her family back in March, she never dreamed that four months later she would end up in handcuffs.

Now, Harpold is trying to clear her name of criminal charges, and she is speaking out in hopes that a law will change so others won’t endure the same embarrassment she still is facing.

“This is a very traumatic experience,” Harpold said.

Harpold is a grandmother of triplets who bought one box of Zyrtec-D cold medicine for her husband at a Rockville pharmacy. Less than seven days later, she bought a box of Mucinex-D cold medicine for her adult daughter at a Clinton pharmacy, thereby purchasing 3.6 grams total of pseudoephedrine in a week’s time.

Those two purchases put her in violation of Indiana law 35-48-4-14.7, which restricts the sale of ephedrine and pseudoephedrine, or PSE, products to no more than 3.0 grams within any seven-day period.

When the police came knocking at the door of Harpold’s Parke County residence on July 30, she was arrested on a Vermillion County warrant for a class-C misdemeanor, which carries a sentence of up to 60 days in jail and up to a $500 fine. But through a deferral program offered by Vermillion County Prosecutor Nina Alexander, the charge could be wiped from Harpold’s record by mid-September.

Harpold’s story is one that concerns some law-abiding citizens who fear that innocent people will get mistakenly caught in the net of meth abuse roundups.

But the flip side of the story comes from the law enforcement arena, which is battling a resurgence in methamphetamine production in the Wabash Valley.

As the 12th-smallest county in the state, Vermillion County ranked as the state’s fifth-largest producer of methamphetamine just a few years ago.

“I don’t want to go there again,” Alexander told the Tribune-Star, recalling how the manufacture and abuse of methamphetamine ravaged the tiny county and its families.

While the law was written with the intent of stopping people from purchasing large quantities of drugs to make methamphetamine, the law does not say the purchase must be made with the intent to make meth.

“The law does not make this distinction,” Alexander said.

If the law said “with intent to manufacture methamphetamine,” no one could be arrested until it was proven that the drug actually was used to make meth, the prosecutor said.

And that certainly wasn’t the intent of the law, either. It was written to limit access to the key ingredient in meth — pseudoephedrine — and thereby to stop the clandestine “mom and pop” meth labs that were cooking drugs throughout the area.

Just as with any law, the public has the responsibility to know what is legal and what is not, and ignorance of the law is no excuse, the prosecutor said.

“I’m simply enforcing the law as it was written,” Alexander said. * * *

And Vigo County Sheriff Jon Marvel, who recently renewed efforts to track pseudoephedrine sales in the Wabash Valley, understands Harpold’s arrest is embarrassing for her.

“Sometimes mistakes happen,” Marvel said. “It’s unfortunate. But for the good of everyone, the law was put into effect.

“I feel for her, but if she could go to one of the area hospitals and see a baby born to a meth-addicted mother …”

This story in the Sept. 28th South Bend Tribune, reported by Virginia Ransbottom, deals with the cost of cleaning up after a meth law - something the ILB has written about before -- see this comprehensive ILB entry from July 14th. Some quotes:

PLYMOUTH — Landlords have learned that cleaning up after a meth bust could cost anywhere from $3,500 to $35,000.

With Indiana rated No. 2 in the United States for meth busts, that’s a lot of cleanup falling on property owner’s shoulders.

In 2008 alone, there were over a thousand meth busts in Indiana.

But since 2006, when the state cleanup rule on meth went into effect, only 81 decontamination certificates have been issued.

That means homes and apartments are either being abandoned, destroyed or reoccupied by unsuspecting occupants.

“The easiest thing to do is demolish the structure,” said Phillip Ball, a state-qualified decontamination inspector from Aegis Environmental.

Ball was the guest speaker at Plymouth Mayor Mark Senter’s anti-meth commission meeting. Landlords were invited to learn what to do after a meth bust.

And landlords are indeed worried.

“If I had a property involved in a meth bust, I’d just stop renting and paying taxes on it,” said Plymouth landlord Gerrard Wilson.

“What would that do for the state? Landlords need some kind of protection.”

That’s exactly what is happening, said Ball. With cleanup costs more than what the property is worth, people are walking away and abandoning properties.

“Banks end up with contaminated properties and with lists piled high of foreclosures, the properties are getting sold,” Ball said.

Although police take away the bulk of chemicals after a meth bust, what is left behind are chemical and drug residues on surfaces, sinks, drains and ventilation systems.

Failure to follow state guidelines for cleanup could result in a liability down the road, when a baby is born with birth defects caused by meth residue, Ball said.

“The long-term effects could be like asbestos was 30 years ago,” said Ball. “Exposure to asbestos caused mesothelioma and meth residue may also cause cancer, but not enough time has passed to study chronic effects.” * * *

The Indiana Department of Environmental Management’s rule on cleanup says qualified inspectors must be used for testing.

The law offers no recourse for property owners stuck with the bill, and enforcement of the law was left to local health departments, many of which don’t have the resources to monitor contaminated properties.

Posted by Marcia Oddi on September 30, 2009 07:01 AM
Posted to Indiana Law

Tuesday, September 29, 2009

Law - Yet more on "Amazon's Kindle to Sell Law Books" and the implications

Updating these earlier ILB entries, today a report in The Daily Princetonian on a Kindle trial there. Hyung Lee writes, in a story that begins:

When the University announced its Kindle e-reader pilot program last May, administrators seemed cautiously optimistic that the e-readers would both be sustainable and serve as a valuable academic tool. But less than two weeks after 50 students received the free Kindle DX e-readers, many of them said they were dissatisfied and uncomfortable with the devices.

On Wednesday, the University revealed that students in three courses — WWS 325: Civil Society and Public Policy, WWS 555A: U.S. Policy and Diplomacy in the Middle East, and CLA 546: Religion and Magic in Ancient Rome — were given a new Kindle DX containing their course readings for the semester. The University had announced last May it was partnering with Amazon.com, founded by Jeff Bezos ’86, to provide students and faculty members with the e-readers as part of a sustainability initiative to conserve paper.

But though they acknowledged some benefits of the new technology, many students and faculty in the three courses said they found the Kindles disappointing and difficult to use.

“I hate to sound like a Luddite, but this technology is a poor excuse of an academic tool,” said Aaron Horvath ’10, a student in Civil Society and Public Policy. “It’s clunky, slow and a real pain to operate.”

Horvath said that using the Kindle has required completely changing the way he completes his coursework.

“Much of my learning comes from a physical interaction with the text: bookmarks, highlights, page-tearing, sticky notes and other marks representing the importance of certain passages — not to mention margin notes, where most of my paper ideas come from and interaction with the material occurs,” he explained. “All these things have been lost, and if not lost they’re too slow to keep up with my thinking, and the ‘features’ have been rendered useless.”

Posted by Marcia Oddi on September 29, 2009 02:43 PM
Posted to General Law Related

Courts - More on upcoming SCOTUS term

The WSJ Law Blog has this entry today, "Pre-Gaming the 2009-10 Term."

From the WSJ itself today, a long article headed "Pocket Docket: Supreme Court's New Season" and including this sidebar on "some of the significant cases the court will hear in the months ahead."

Posted by Marcia Oddi on September 29, 2009 12:35 PM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 0 NFP)

For publication opinions today (2):

In Scott Ruse v. Mark Bleeke/Scott Ruse v. Terry Parrish, an 18-page opinion, Judge Kirsch writes:

In this consolidated appeal, Scott Ruse (“Ruse”) appeals after a bench trial from the trial court's judgment in favor of Mark Bleeke (“Bleeke”) in his action against Ruse alleging claims under the Indiana Crime Victim's Relief Act, fraud, and breach of fiduciary duty. Ruse also appeals after a bench trial from the trial court's judgment in favor of Terry Parrish (“Parrish”) in an action brought by Ruse against Parrish alleging breach of contract and criminal conversion. The broad issue presented for our review from these judgments is whether there is sufficient evidence to support the findings of fact and conclusions thereon issued in both judgments against Ruse. Parrish cross-appeals arguing that if we find the trial court erred during the bench trial, he should have been entitled to summary judgment. We affirm.

In Liberty Landowners Assn. v. Porter County Commissioners, et al, an 11-page opinion, Chief Judge Baker writes:

Appellant-plaintiff Liberty Landowners Association, Inc., (Liberty Landowners) appeals the trial court's order dismissing its complaint for declaratory judgment that it filed against the appellees-defendants Porter County Commissioners (Commissioners) regarding the decision to rezone certain real property in Porter County, which permitted appellee-intervenor Northwest Indiana Health System, LLC (Northwest Health) to construct a hospital on the property. Specifically, Liberty Landowners argues that the trial court erred in concluding that it lacked standing to proceed with the action. Concluding that the trial court properly dismissed Liberty Landowners's complaint, we affirm. * * *

The determination of whether a plaintiff's complaint should be dismissed for lack of standing is properly treated as a motion to dismiss under Indiana Trial Rule 12(B)(6)—the failure to state a claim upon which relief may be granted. Common Council of Michigan City v. Bd. of Zoning Appeals of Michigan City, 881 N.E.2d 1012, 1015 (Ind. Ct. App. 2008). A successful 12(B)(6) motion requires the lack of standing to be apparent on the face of the complaint. Huffman v. Ind. Office of Envtl. Adjudication, 811 N.E.2d 806, 813 (Ind. 2004). Additionally, the determination of whether a plaintiff's complaint should be dismissed for lack of standing pursuant to a Trial Rule 12(B)(6) motion is generally one of law. Vectren Energy Mktg. & Servs. v. Executive Risk Specialty Ins. Co., 875 N.E.2d 774, 777 (Ind. Ct. App. 2007). We apply a de novo standard of review, and we need not accord deference to the trial court's decision. Reversal is appropriate if an error of law is demonstrated. State ex rel Steinke v. Coriden, 831 N.E.2d 751, 754 (Ind. Ct. App. 2005).

As noted above, Liberty Landowners contends that the trial court erred in granting the Commissioners' motion to dismiss on the grounds that it lacked standing to maintain the action. More specifically, although Liberty Landowners acknowledges that it did not have standing as a private individual, [it contends that] the doctrine of “public standing” permits it proceed with its claims. Appellant's Br. p. 6-12. * * *

In an effort to distinguish the long line of precedent holding that residents' associations do not have standing to challenge zoning decisions, Liberty Landowners argues that its claim against the Commissioners survives in light of the “public standing doctrine,” which is an exception to the general requirement that a plaintiff must have an interest in the outcome of the litigation different from that of the general public. Embry v. O'Bannon, 798 N.E.2d 157, 160 (Ind. 2003).

Notwithstanding this contention, the Commissioners point out that Liberty Landowners did not raise the issue of public standing in the trial court. Rather, it is apparent that Liberty Landowners sought to have the trial court reverse established precedent that landowner associations owning no real estate are without standing to challenge zoning decisions. Thus, Liberty Landowners has waived the issue. See Van Meter v. Zimmer, 697 N.E.2d 1281, 1283 (Ind. Ct. App. 1998) (holding that a party may not advance a theory on appeal which was not originally raised at the trial court level).

Waiver notwithstanding, we note that the public standing doctrine or the availability of taxpayer or citizen standing is limited to extreme circumstances and should be applied with “cautious restraint.” * * * Indeed, even when public standing is asserted, claimants must still have some property right or some other personal right and a pecuniary interest.

As noted above, it is undisputed that Liberty Landowners owns no property and pays no taxes. Moreover, Liberty Landowners has no legal right—personal or pecuniary—that has been put in jeopardy by the Commissioners' decision. In other words, Liberty Landowners has not alleged any direct harm and has not been denied any rights. As a result, Liberty Landowners's claims fail. The judgment of the trial court is affirmed.

The ILB has had a number of entries on the Liberty Landowners Ass'n. challege to rezoning for the new Porter hospital.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on September 29, 2009 11:57 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Supreme Court upholds conviction of South Bend molester"; some comments on Melendez-Diaz' application in Indiana

The ILB has had a number of entries on the case of Richard Pendergrass v. State of Indiana, involving the confrontation clause and crime lab reports and the SCOTUS June 25th decision in Melendez-Diaz v. Mass.

Our Court decided Pendergrass in a 3-2 split on Sept. 24th - here is the ILB summary. Yesterday Alicia Gallegos reported in the South Bend Tribune:

SOUTH BEND — A majority of Indiana Supreme Court justices have ruled against a convicted child molester who claimed evidence presented in his case violated his Sixth Amendment rights.

The decision comes on the heels of a recent controversial Supreme Court case that ruled lab technicians must appear in court, rather than send affidavits only.

The local case centers on 40-year-old Richard Pendergrass, of South Bend, who was convicted of child molesting in 2007 for impregnating a female relative. * * *

[D]uring Pendergrass' trial, he objected to the court admitting documents detailing the DNA analysis, insisting that without the actual lab technicians, the paperwork was hearsay.

The protest related to the recent ruling of Melendez-Diaz v. Massachusetts, a case in which drug affidavits deeming a substance to be cocaine were ruled as insufficient evidence. Instead, the historic case ordered lab technicians be in court to back up their claims and be present for cross-examination.

In the Pendergrass case, the prosecution did present live testimony from two lab experts, one who supervised the lab that conducted the report and another who had specific knowledge of DNA.

But Pendergrass argued the actual lab tech should have testified.

In their 11-page ruling, three of five justices found that Pendergrass had the chance to confront witnesses who were directly involved in the analysis, unlike the Melendez-Diaz case, who "confronted none at all."

The judges ruled the witnesses who testified had personal knowledge of the DNA results and were competent to address challenges to the tests.

Two other justices, however, dissented, finding that the Melendez-Diaz precedent points in a different direction.

"The record is clear that it was (the lab technician) who examined the aborted fetus specimen and buccai swabs taken from (the victim)," the dissenting opinion reads. "But (she) was never subjected to the rigors of cross-examination on either the examination she performed, the testing she conducted, or the results she researched."

(To clarifiy, Pendergrass was argued before our Supreme Court on Oct. 9, 2008, the SCOTUS did not finally decide Melendez-Diaz until the end of this term, June 25, 2009, followed by the Indiana Court's Pendergrass ruling on Sept. 24th.)

A related case, Ricky L. Jackson, decided by the Court of Appeals on Aug. 12, 2008, has been pending transfer to the Supreme Court. As reported on the transfer listed posted yesterday, transfer was finally denied, with all justices concurring, on Sept. 24th, the same day as of the Pendergrass opinion.

The ILB has asked Joel Schumm, IU-Indy law prof, for his comments on all this. His response:

What appeared to be a pretty straightforward requirement that defendants have a right to confront the person who prepared a lab report (instead of simply relying on the report as a hearsay exception) has proven more nuanced. In Pendergrass the State called a DNA laboratory supervisor instead of the technician. The majority found this sufficient based on language from Melendez-Diaz, explaining that the right to confrontation “does not mean that everyone who laid hands on the evidence must be called,” which it concludes leaves discretion with the prosecution on which evidence to present. “The laboratory supervisor who took the stand did have a direct part in the process by personally checking [the technician’s] test results,” the majority reasoned.

After reading Pendergrass, I was surprised to see the unanimous denial of transfer in Jackson. Usually the court will sort through the nuances of big issues in separate opinions issued on the same day. (For example, when it decided Anglemyer, it issued two other opinions on the same issue on the same day in McDonald and Windhorst.) Jackson held that calling a supervisor was insufficient because he had performed none of the tests and only the technician could testify “whether she correctly followed each step in the testing process.”

Jackson is difficult to reconcile with the majority opinion in Pendergrass. Indeed, I think the Pendergrass dissent (by Justice Rucker, joined by Justice Boehm) has the stronger argument and is consistent with Jackson: “Although a supervisor might be able to testify to her charge’s general competence or honesty, this is no substitute for a jury’s first-hand observations of the analyst that performs a given procedure; and a supervisor‘s initials are no substitute for an analyst’s opportunity to carefully consider, under oath, the veracity of her results.”

The bottom line: the State should call the technician—not a supervisor—and avoid the uncertainty of a reversal if the testing scenario is found closer to Jackson than to Pendergrass—or if Pendergrass does not withstand later SCOTUS review.

Posted by Marcia Oddi on September 29, 2009 10:33 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - A different take on the COA voter ID decision

The Court of Appeals Sept. 17th decision in League of Women Voters v. Todd Rokita has been the subject of a number of editorials and analyses. For instance, here is a quote from a NY Times story written the day of the opinion:

Indiana’s “Equal Privileges and Immunities Clause” is similar to the Equal Protection clause of the United States Constitution. But the unanimous three-judge panel of the Indiana Court of Appeals found that the voter ID law violated the guarantee of equal protection for all citizens because it did not require mail-in voters and residents of some nursing homes to produce state-approved identification.

Under Indiana law, the court said, it could be reasonable to regulate absentee balloting more stringently than in-person balloting. But the voter ID law does the opposite, the court argued, and “imposes a less stringent requirement for absentee voters than for those voting in person.”

Today the Anderson Herald Bulletin has this editorial, headed "Indiana’s voter ID law should stand." A quote:

The primary underpinning of a democracy is the notion that each eligible voter have one voice — one vote — in determining public office holders.

In order to protect the system, it’s important that the state have checks in place to assure that votes are being cast by citizens with residence in the precinct where they’re voting.

So it doesn’t seem onerous or unfair that the state require voters to present photo identification — a driver’s license, for example — when they show up at the poll. There’s really no other way to ascertain that the voters are who they say they are.

This was the basis of Indiana’s 2005 law requiring voters to present government-issued identification at the polls on Election Day. The law seems especially practical when you consider that such a photo ID is required to drive a car, ride an airplane, use a credit card, and essentially function as an active member of society.

Yet, this month, the Indiana Court of Appeals struck down the state’s voter ID law. The three-judge panel ruled that the law could not be implemented evenly because it did not apply to absentee voters.

That’s a good point. But on a practical level, should a solution to one part of a problem be discounted because it’s not a solution to all parts of the problem?

And from an editorial yesterday in the South Bend Tribune:

The state Constitution's intent is specific and clear, say the appeals judges. The Equal Privileges and Immunities Clause demands that laws be applied in a uniform and impartial manner. Specifically, the judges objected to the voter ID law's disparate treatment of those who vote in person at polling places and those who vote absentee by mail. Unlike in-person voters, absentee voters are not required to present a government-issued photo ID. * * *

Voters and election officials alike would be best served by an early resolution to Indiana's voter ID issue. If the Supreme Court overturns the Court of Appeals, nothing will change. But if the Supreme Court upholds the Appeals ruling, the General Assembly will need to decide how to amend the law to make it constitutional, whether to scrap it and start over, or whether to simply let go of the notion of requiring polling place IDs. It would be working on a deadline. There's a statewide election in 2010.

Posted by Marcia Oddi on September 29, 2009 10:12 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Another NFP COA decision reclassified

The case is Edwin Berberena v. State of Indiana (49A02-0901-CR-87 ) - 2-1 NFP opinion issued 7/23/09; Appellant's motion to publish 8/24/09; Appellee's motion for rehearing 8/24/09; Appellee's petition for rehearing denied 9/24/09; Appellant's motion to publish granted 9/25/09.

From the opinion:

Edwin Berberena appeals his conviction for Resisting Law Enforcement, as a Class A misdemeanor, following a bench trial. He presents a single issue for our review, namely, whether the State presented sufficient evidence to support his conviction. * * *

As our Supreme Court held in Graham, "[i]t is error as a matter of law to conclude . . . that 'forcibly resists' includes all actions that are not passive." 903 N.E.2d at 965. In sum, force is an element of the offense, id., but there is simply no evidence of force. We hold that the evidence is insufficient to support Barbarena's resisting law enforcement conviction.

Posted by Marcia Oddi on September 29, 2009 09:54 AM
Posted to Ind. App.Ct. Decisions

Law - "A new push to define 'person,' and to outlaw abortion in the process"

Robin Abcarian reports today in the LA Times - the subhead is "Some abortion foes think the rationale for Roe vs. Wade is vulnerable. They're trying to amend state constitutions -- including California's -- to define personhood from conception."

Posted by Marcia Oddi on September 29, 2009 09:06 AM
Posted to General Law Related