Tuesday, November 03, 2009

Ind. Courts - "Calif. High Court Reflects on Brief Policy"; What About Indiana?

That first clause is the heading to this story today by by Mike McKee of The Recorder, whose report begins:

Hoping to avoid a potential copyright fight, the California Supreme Court might soon stop shipping copies of attorneys' briefs to Westlaw and LexisNexis and, instead, post them online for all takers.

"It's still a work in progress, but it's something I'm giving my attention to," Beth Jay, principal attorney to Chief Justice Ronald George, said Thursday. "We're looking to be in a neutral position, providing information to the public."

The Supreme Court was called on the carpet in July when Irvine lawyer Edmond Connor wrote to complain about the court's practice of providing copies of the legal briefs attorneys file with the state's six appellate courts to legal publishers, which, in turn, make them available to the public for a charge.

"The briefs provided to the Supreme Court," the Connor, Fletcher & Williams partner wrote, "are valuable public resources which should be used for the public good, not given away to large corporations to enable them to reap sizable profits."

What about Indiana? See this April 30, 2005 ILB entry, which includes the following:

On April 14th David C. Lewis, Clerk of the Supreme and Appeals Courts, issued a press release announcing "Indiana Appellate Briefs Now Available Online through Westlaw." Some quotes:

Westlaw subscribers have several options for adding this service to their current subscriptions. Individuals who are not Westlaw subscribers may access the service with a credit card, paying on a per-use basis. * * *

"West's online briefs project takes us another step closer to providing the public with greater access to court records," said Clerk David Lewis. "We applaud West's commitment to this project. Not only does it provide Indiana's attorneys with a significant new tool, but it promotes our office's goal of openness and accountability in the judicial system." [ILB - emphasis added]

ILB - I'm not out to burn any bridges here, but I just don't think so. I think promoting West's project to sell the briefs makes it unlikely that they will ever be available online to the public at no cost.

Who, other than the parties in the case (who already are on the distribution list) might be interested in reading Indiana appellate briefs, if they were freely available?

• People (scholars, students, attorneys interested in keeping up in an area, the interested public) who watch the oral arguments online would benefit greatly from being able first to review the briefs, and the lower court's opinion.
  
• People who are interested in a contentious case, such as the recent same-sex marriage case before the Court of Appeals, and the post-Blakely/Booker cases before the the Court of Appeals and Supreme Courts, who need ready access to ALL the documents -- here we are talking about dozens of briefs.
  
• People who read a decision and want to read the parties' arguments, and people who want to see a cross-section of arguments made, and cases cited, about a particular issue.

In short, the same people who read the courts' opinions and listen to oral arguments on the Court's public website should be able to access the briefs there. Is is disappointing that they can't.

Nearly 5 years have passed since that decision was made.

Posted by Marcia Oddi on November 3, 2009 03:29 PM
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Kohlmeyer v. Second Injury Fund, a 7-page, 5-0 decision, Justice Dickson writes:

Indiana's statutory worker's compensation scheme enables certain totally disabled work-ers who have exhausted the maximum benefits from their employers to seek additional compen-sation from the Second Injury Fund. The principal disputes in this case are (1) whether a work-er's Social Security Act disability benefits are includable in calculating whether the worker quali-fies to access the Second Injury Fund, and (2) whether the language in the award stipulation of the worker and his employer, which was approved by the Worker's Compensation Board, is binding upon the Board as to the worker's right to access benefits from the Second Injury Fund. * * *

Although the Indiana Worker's Compensation Act does not direct that a worker's receipt of Social Security Act benefits be included in determining his eligibility for Second Injury Fund compensation, the Worker's Compensation Board's express approval of the parties' stipulation in this case operates to establish that the worker, James Kohlmeyer, was permanently and totally disabled from work related injuries and that he met the maximum benefits prerequisite for Second Injury Fund eligibility. The Order of the Full Worker's Compensation Board, affirming the Single Hearing Member's decision, is hereby reversed.

Posted by Marcia Oddi on November 3, 2009 01:33 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court sets Dec. 11, 2009 as execution date for Matthew Eric Wrinkles

Updating this ILB entry from August 13, 2008, headed "7th Circuit rules in Indiana case where defendant wore stun-belt throughout trial," the Indiana Supreme Court today issued a 12-page, 4-1 order titled "Order concerning successive petition for post-conviction relief" in Wrinkles' case, plus an "Order setting date for execution of death sentence."

The Evansville Courier & Press has posted the two documents, plus a story:

The Indiana Supreme Court today set an execution date for Eric Wrinkles, the Evansville man convicted in the 1994 slayings of his estranged wife and two relatives.

Wrinkles will be executed before sunrise the morning of Dec. 11, according to an order filed today.

The Indiana Attorney General's Office notified the state Supreme Court in May that Wrinkles' federal appeals were exhausted when the U.S. Supreme Court on May 18 declined to hear his case.

Before setting the date, the Indiana Supreme Court first considered an additional appeal from Wrinkles regarding a 2002 opinion in which it ruled a stun belt he wore during his trial did not bias jurors.

That order, written by Indiana Chief Justice Randall T. Shepard, states that Wrinkles did not "meet his burden of establishing a reasonable possibility that he is entitled to post-conviction relief." It leaves open the possibility for petitioning for rehearing, but says it should "not be sought if Wrinkles intends merely to raise the same arguments (the court) has already addressed."

Posted by Marcia Oddi on November 3, 2009 01:21 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Laws - "Lawmaker to push texting-driving ban"

Following up on this earlier ILB today on texting, Niki Kelly of the Fort Wayne Journal Gazette has a report that begins:

INDIANAPOLIS – An area lawmaker hopes to outlaw texting while driving for all Hoosiers during the 2010 legislative session.

Sen. Travis Holdman, R-Markle, sponsored legislation this year that prohibits the practice for teen drivers. [SEA 16] Now he wants to take the next step and ban texting and e-mailing while driving for all drivers.

“A driver’s crash risk doubles when attention is taken off the road for two or more seconds,” Holdman said. “An increasing number of people are texting and e-mailing while driving, which diverts their attention away from the road and endangers other motorists, passengers and pedestrians. This legislation will save lives.”

He filed the bill, which would call for a fine if the ban is violated, last week. Legislators will be in session Jan. 5.

Indiana would join 18 other states and the District of Columbia in banning motorists from texting while driving.

Posted by Marcia Oddi on November 3, 2009 12:15 PM
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Larry D. Smith v. State of Indiana , a 6-page, 2-1 opinion, Judge Barnes writes:

Larry Smith appeals his conviction for Class C felony sexual misconduct with a minor. We affirm.

Smith raises one issue, which we restate as whether there is sufficient evidence to support his conviction for sexual misconduct with a minor. * * *

The repeated touching and the location of the touches combined with the viewing of pornographic images is sufficient evidence from which the jury could infer Smith’s intent. We affirm.

NAJAM, J., concurs.
KIRSCH, J., dissents with opinion. [which concludes] In the absence of legitimate inference, we can only speculate as to what Smith’s intention was. I do not believe that speculation can constitute proof beyond a reasonable doubt. Accordingly, I respectfully dissent.

In Dustin Neff v. State of Indiana , an 18-page opinion, Judge Barnes writes:

I. General suifficiency of the evidence. * * * The State in this case clearly could have more precisely alleged that the child solicitation occurred on April 29, 2006, as well as or even instead of May 2, 2006. Nevertheless, the precise date of the alleged solicitation is not of “the essence of the offense” of child solicitation, nor was Neff misled into believing that the State would not present or rely upon evidence related to the April 29, 2006 chat. As such, there was no fatal variance between the charging information and proof at trial with respect to the precise dates upon which Neff solicited “Lizzy.”

II. Venue. Neff also contends the State failed to prove that proper venue existed in Hamilton County, since all of the IM chats occurred between him at his computer in Madison County and Bedard, who was in Georgia. The State contends that Neff's traveling to Hamilton County, in accordance with his and “Lizzy's” plans, establishes venue there. A defendant has a constitutional and statutory right to be tried in the county in which an offense allegedly was committed. Baugh v. State, 801 N.E.2d 629, 631 (Ind. 2004). * * *

For all these reasons, we conclude the State failed to present sufficient evidence that proper venue for Neff's prosecution lay in Hamilton County. Madison County is the only county in Indiana where venue would be proper. Having reached that conclusion, we turn to the question of whether Neff can be retried in Madison County for this offense if the prosecutor in that county so chooses. Neither party addressed this question in their briefs, but we did explore the issue at oral argument and we must address it. * * *

We also conclude that permitting retrial of a defendant in the proper county after the State failed to prove venue in another county is consistent with double jeopardy jurisprudence. * * *

The question here, then, is whether our reversal of Neff's conviction due to improper venue is an acquittal based upon insufficient evidence or a reversal based on legal error for double jeopardy purposes. We conclude it is the latter. * * * The State's failure here to prove venue in Hamilton County was not a failure to prove an element of the offense and “implies nothing” with respect to Neff's guilt or innocence. See Burks, 437 U.S. at 15, 98 S. Ct. at 2149. As such, we conclude Neff may be retried in Madison County. * * *

Conclusion. There is sufficient evidence that Neff committed Class C felony child solicitation. However, there is insufficient evidence that he committed that crime in Hamilton County. We reverse his conviction because of improper venue and remand with directions that this case be transferred to Madison County for further proceedings consistent with this opinion.

NFP civil opinions today (2):

Calvin Lawson v. State of Indiana (NFP)

In the Matter of The Commitment of R.R. v. Branigan Sub-Acute Unit of Adult & Child Mental Health Center, Inc. (NFP)

NFP criminal opinions today (2):

Daniel Reed v. State of Indiana (NFP)

Shiloh Macon v. State of Indiana (NFP)

Posted by Marcia Oddi on November 3, 2009 11:33 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: " First, Annex Books, now New Albany DVD"

Updating this ILB entry from Sept. 10th, Harold J. Adams reports today in the Louisville Courier Journal:

The City of New Albany must decide whether to keep fighting following another loss in its long-running battle to shut down an adult bookstore.

The 7th U.S. Circuit Court of Appeals last week denied the city’s request that the full court reconsider a September ruling by a three-judge panel blocking the city from closing New Albany DVD.

The panel’s ruling upheld a U.S. District Court injunction that allowed the store at 601 W. Main Street to remain open to sell sexually explicit movies and books.

Ten of the 11 judges on the Chicago-based appeals court participated in considering the city’s petition for rehearing and voted against it, the court said. The eleventh judge did not participate.

Steven Mason, the attorney representing New Albany DVD, said Monday that for the city, “The significance is that they don’t really have anywhere to go.” * * *

The city’s options include an appeal to the U.S. Supreme Court or taking up the 7th Circuit panel’s challenge to go back to district court to prove the city’s claim that adult bookstores attract thieves and create a problem of pornographic litter.

The appeals panel said no such evidence was presented at the district court level in a 2004 lawsuit filed by the bookstore against a newly-passed city ordinance that ordered the store to close.

U.S. District Judge Sarah Evans Barker granted an injunction against enforcement of the ordinance in January 2005, based on doubts about its constitutionality, and ordered that New Albany DVD be allowed to open.

The 7th Circuit panel upheld the city’s ordinance but kept the injunction against enforcement in place pending a district court hearing on any evidence the city can produce to back up its claims of harmful effects produced by the business.

Posted by Marcia Oddi on November 3, 2009 10:54 AM
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions

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

In U.S. v. Tyrone Vaughn (ND Indd., CJ Miller), a 15-page opinion, Judge Rovner writes:

A jury convicted Tyrone Vaughn of possession with intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); distribution of marijuana, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Vaughn contends that the evidence was insufficient to support his conviction for possession of a firearm in furtherance of a drug trafficking crime. He also contests the district court’s determination on sentencing of the amount of drugs he dealt, arguing that his own uncorroborated statement to police officers following his arrest is insufficient to establish the amount of drugs he bought and sold. We affirm.

Posted by Marcia Oddi on November 3, 2009 10:48 AM
Posted to Ind. (7th Cir.) Decisions

Courts - Oral argument today before the SCOTUS in RICO case in which many states have an interest

According to this entry today in SCOTUSBlog, the SCOTUS today is hearing the following case:

1 p.m. – In Hemi Group, LLC v. City of New York (08-969), the issue is whether a city government can use a civil RICO lawsuit to collect cigarette taxes.

According to our list "Filed State Amicus Briefs 2009 AG Zoeller", the State of Indiana authored a merits brief in this case. According to this SCOTUSBlog entry by Brian Goldman:

The case presents the Court with an issue being watched closely by state and local governments nationwide: whether such governments may bring civil suits to recover non-commercial losses – such as uncollected taxes – under the Racketeer Influenced and Corrupt Organizations Act (RICO), which confers standing upon “any person injured in his business or property by reason of a violation of” RICO’s criminal prohibitions.

Here is the amicus brief authored by the Indiana Attorney General and joined by the following states: Alabama, Florida, Hawaii, Idaho, Illinois, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Nebraska, New Jersey, New Mexico, Ohio, Pennsylvania, South Carolina, Utah, West Virginia, and Wyoming.

Posted by Marcia Oddi on November 3, 2009 10:36 AM
Posted to Courts in general

Ind. Decisions - More on: Upcoming oral arguments this week and next

The ILB's weekly "Upcoming Oral Arguments" entry, both this week and last, indicated that NO oral arguments had been posted by our Supreme Court for the month of November.

The ILB has just received, from the Court's press office, a list of the arguments set for the November sitting of the Court. Here are those set for next week, Thursday, Nov. 12 (these also will be included on next Monday's ILB list):

• 9:00 a.m. - Caesars Riverboat Casino. LLC v. Genevieve Kephart (31S01-0909-CV -303)

  Caesars filed an action against Kephart seeking repayment of a gambling debt, treble damages, and attorney fees. Kephart counterclaimed, alleging Caesars unjustly enriched itself by taking advantage of her pathological gambling addiction. The trial court denied Caesars' motion to dismiss Kephart's counterclaim. On interlocutory appeal, a divided panel of the Court of Appeals reversed, holding Kephart did not have a private cause of action against Caesars under these circumstances. Caesars Riverboat Casino, LLC v. Kephart, 903 N.E.2d 117 (Ind. Ct. App. 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

• 9:45 a.m. - TRW Vehicle Safetv Systems, Inc. v. Sally J. Moore (73S05-0909-CV -404)

  The Estate of Daniel Moore filed a product liability negligence complaint against Ford Motor Company ("Ford") and TRW Vehicle Safety Systems, Inc. ("TRW"). The jury returned a verdict apportioning fault among Daniel Moore, Ford, TRW, and a nonparty, Goodyear, resulting in damage judgments against Ford and TRW. A majority of the Court of Appeals reversed the jury verdict based on the sufficiency of the evidence. Ford Motor Co. v. Moore, 905 N.E.2d 418 (Ind. Ct. App. 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

• 10:30 a.m. - Indiana Patient's Compensation Fnnd v. Gary Patrick (49S02-0909-CV -402)

  The Marion Circuit Court entered a judgment allowing Patrick, the father of a patient who died as a result of medical malpractice, to collect from the Fund for damages under the Adult Wrongful Death Statute and for damages attributable to Patrick's own claim for negligent infliction of emotional distress under the "bystander rule." The Court of Appeals affirmed. Indiana Patient's Compensation Fund v. Patrick, 906 N.E.2d 194 (Ind. ct. App. 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

Here is the list for the entire month of November.

Posted by Marcia Oddi on November 3, 2009 10:12 AM
Posted to Upcoming Oral Arguments

Ind. Courts - Still more on: "Indiana Supreme Court Suspends Judge Accused of Theft"

Updating this ILB entry from Oct. 29th, which quoted a story about the cost and inconvenience to the City of Bicknell as a result of the Oct. 14th suspension of its judge (no money coming in from fines, plus they have to continue to pay the salary of the suspended judge), the ILB has just received an Order of the Supreme Court, dated Nov. 2, appointing as judge pro tempore, Michael D. Edwards, effective Nov. 16th. From the Order:

This Order shall be sufficient authority for Judge Edwards to continue the employment of court personnel and otherwise discharge the duties of Judge of the Bicknell City Court. Judge Edwards shall be entitled to compensation for this service paid from the funds of the City of Bicknell at the same rate and on the same schedule as the present incumbent, commencing from the effective date of his appointment.

Posted by Marcia Oddi on November 3, 2009 09:45 AM
Posted to Indiana Courts

Courts - More on: Louisville paper gets it wrong re Kentucky AG "advising" the Corrections Department not to follow a recent state Supreme Court ruling; Implications

Yesterday the Louisville Courier Journal, at the behest of the Kentucky Attorney General, published a correction in its printed paper about an editorial it had run on Oct. 31st. But, as far as I can tell, it simply deleted the online version without any comment or explanation. See these ILB entries from Nov. 2nd and Oct. 31st for more.

For some commentary on similar situations, see this Oct. 30th entry by Jonathan H. Adler in The Volokh Conspiracy. The heading: "Revising Web-based Newspaper Articles Without Informing Readers — NYT Edition." Adler writes:

This is not the first time I’ve noticed the web site of a prominent news organization failing to disclose that it had edited the web-based version of a story after initial publication. . . . Is this now common practice? If so, it seems to be a major failing. Responsible bloggers routinely disclose anything more than the most minor stylistic and typographical revisions to published posts. I would think newspaper websites could do the same. Indeed, shouldn’t newspapers at least match the disclosure norms observed by bloggers? After all, they’re the real journalists.

And from a reader's comment on a comment:

Comment: Has it ever not been common practice? Even the dead tree versions of newspaper articles often change without notice between various editions or print runs. Why does this continue to surprise anyone? Should it really bother you?

Comment on the comment: That perhaps explains why it’s commonly done, but it doesn’t excuse it. When a dead-tree newspaper put out a new edition, the old one didn’t suddenly disappear, but that’s what happens with online newspapers, unless somebody just happens to preserve a copy. There’s no good reason that I can think of why online media shouldn’t archive all previous versions of an article, available from the article’s page. Wikipedia does that now.

Implications. The above may appear to be nit-picking, but think of the implications in the legal world. And these are not uncommon in most jurisdictions.

• Example 1: A court opinion may be posted online. Several days later some seemingly minor corrections are made. The corrected version is posted in place of the earlier version with no indication. So different people have different copies of the opinion, depending upon when they acquired them.

• Example 2. Various, often undated, directives of state agencies may be posted online, changed, replaced, with no indication.

Posted by Marcia Oddi on November 3, 2009 09:17 AM
Posted to Courts in general

Not Law - "Newsday Columnist Quits Over Paywall, Wants To Be Read"

TechDirt has an entry on the renewed effort of some newspapers to make their online stories pay-for-view that begins:

One of the reasons why the NY Times eventually did away with its old "paywall" was that its big name columnists started complaining that fewer and fewer people were reading them. We've suggested in the past that newspapers who decide to put up a paywall may find that their best reporters decide to go elsewhere, knowing that locking up their own content isn't a good thing in terms of career advancement. So, with Cablevision deciding to put Newday behind a paywall, it didn't take long for some of its columnists to start to bailing.

Posted by Marcia Oddi on November 3, 2009 09:05 AM
Posted to General News

Courts - Still more on: "Kentucky Supreme Court to hear online gambling case"

Updating this Oct. 23rd ILB entry, which quoted from a story on the oral argument that took place Oct. 22, here is an entry from the Kentucky Law Blog that links to a video of the oral argument, plus has links to the briefs filed in the case. Recall that this is the case where the Kentucky governor seized the internet domain names of 141 gambling entities in an effort to stop Kentucky citizens from gambling online.

Posted by Marcia Oddi on November 3, 2009 08:55 AM
Posted to Courts in general

Law - More on Ed DeLaney attack: $3 million bond set

Robert Annis has a report in today's Indianapolis Star about the arraignment of the accused attacker, Augustus Mendenhall.

Posted by Marcia Oddi on November 3, 2009 08:45 AM
Posted to Indiana Courts

Law - "Driven to Distraction: When Texting Kills, Britain Offers Path to Prison "

The NY Times had a long and moving, front-page story Sunday, by Elizabeth Rosenthal, about texting. "A 24-year-old fashion designer was killed near Oxford when [another young] woman who had just received a text message rear-ended her car at 60 miles an hour."

The story is accompanies by a number of items, including the United Kingdom Sentencing Guidelines Council guidelines on causing death by driving. A quote from the Times:

The independent council's guidelines for sentencing offenders over the age of 18 include the use of mobile devices and text messaging, and is classified under the "avoidable distractions" category. The sentencing guidelines recommend the punishment of imprisonment for texting while driving.

In addition, there is a link to the 6-page judgment of the appeals court. The issue was whether the sentence of 21 months imprisonment for "causing death by dangerous driving" was too lenient. The Lord Chief Justice ruled that it was lenient, but would not be disturbed.

Here are a few quotes from the story:

OXFORD, England — Inside the imposing British Crown Court here, Phillipa Curtis, 22, and her parents cried as she was remanded for 21 months to a high-security women’s prison, for killing someone much like herself. The victim was Victoria McBryde, an up-and-coming university-trained fashion designer.

Ms. Curtis had plowed her Peugeot into the rear end of Ms. McBryde’s neon yellow Fiat, which had broken down on the A40 Motorway, killing Ms. McBryde, 24, instantly.

The crash might once have been written off as a tragic accident. Ms. Curtis’s alcohol level was zero. But her phone, which had flown onto the road and was handed to the police by a witness, told a story that — under new British sentencing guidelines — would send its owner to jail.

In the hour before the crash, she had exchanged nearly two dozen messages with at least five friends, most concerning her encounter with a celebrity singer she had served at the restaurant where she worked.

They are filled with the mangled spellings and abbreviations that typify the new lingua franca of the young. “LOL did you sing to her?” a friend asks. Ms. Curtis replies by typing in an expletive and adding, “I sang the wrong song.” A last incoming message, never opened, came in seconds before the accident.

With that as evidence, Ms. Curtis was sentenced in February under 2008 British government directives that regard prolonged texting as a serious aggravating factor in “death by dangerous driving” — just like drinking — and generally recommend four to seven years in prison.

The case reveals the tensions that arise when law enforcement and the courts begin to crack down on a dangerous habit that has become widespread and socially acceptable. Is texting while driving bad judgment, or a heinous crime? And what is the appropriate punishment?

Upon hearing the sentence, prosecutors — backed by the police and Ms. McBryde’s mother — quickly appealed to Britain’s highest court for a longer prison term, calling 21 months “unduly lenient.”

“She came across as a lovely young girl, and I’m sure it wasn’t a nice feeling for the judge to send someone like this to prison — but someone is dead because of a text message,” said Bill Sykes, the officer who responded to the crash and led the subsequent investigation.

But many young people, among them the dead woman’s own siblings and friends, disagreed, sympathizing also with Phillipa Curtis. “I think Phillipa’s sentence was long enough, as she seemed like such a normal girl,” said Gemma Pancoust, the victim’s cousin and close friend, with whom she liked to sing karaoke to Dolly Parton’s “9 to 5.” “Until Tory’s death I texted while driving, as have most people. I don’t think she realized the danger she was causing.”

Indeed, the victim herself had sent a text message and talked on her cellphone (using the speaker function) while driving before her car broke down, according to the testimony of a friend with whom she had the 20-minute phone conversation. It is illegal in Britain to use a hand-held phone while driving, and drivers using hands-free phones may be fined if they are deemed not in control of the vehicle.

Although most European countries and a minority of American states now ban the use of hand-held cellphones while driving, Britain has become one of the more aggressive countries in attacking the problem, according to Ellen Townsend, policy director for the European Transit Safety Council, which advises the European Commission.

Britain’s new guidelines state that using a hand-held phone when causing a death will “always make the offense more serious” in terms of punishment and lead to prison time. Texting is given special treatment.

Ms. Curtis was found guilty and sent to prison even though she was not texting at the time of the accident, because the new guidelines regard “reading or composing text messages over a period of time” as “a gross avoidable distraction.” Its effect, British judges have ruled, may go beyond the moment of composing a message. Such behavior is categorized the same as driving while drunk or high on drugs, as well as racing another driver.

Posted by Marcia Oddi on November 3, 2009 08:22 AM
Posted to General Law Related

Ind. Courts - "Tippecanoe County Judge, Purdue professor take on problem-solving courts in book"

Sohia Voravong's story in the Lafayette Journal Courier Nov. 2nd began:

Becoming a registered voter, signing up for a library card, enrolling in substance abuse or mental health treatment-- those are just some of the requirements for participants in Tippecanoe County's re-entry court for recently released prisoners.

For some, the checklist of stipulations and strict monitoring were seen as overbearing, said former Tippecanoe Superior Court 1 Judge Don Johnson, who helped launch and presided over the intensive program.

But the rules proved successful in reducing the number of repeat offenders.

"Each week, they were held accountable. If they missed a meeting ... there were immediate repercussions if they did not show," Johnson said. "A lot of participants have commented that it's almost like a virtual prison. They're accountable for every moment of the day."

The re-entry program is one of three Tippecanoe County problem-solving courts addressed in "Problem Solving Courts: New Approaches to Criminal Justice." It was written by Johnson and JoAnn Miller, a sociology professor at Purdue University and associate dean for the College of Liberal Arts.

Johnson and Miller will be in Washington, D.C., this week to discuss the book and Tippecanoe County's successes and failures in helping prisoners better transition into the community.

They'll also be part of a panel discussion and book signing in mid-November in Indianapolis.

"In three years, we had only a handful of failures and -- at the time of this book -- 66 success stories," Miller said. "The focus is on the contributions that re-entry can make on a community, from the economy to the quality of life.

Check out the book here, via Amazon.

Posted by Marcia Oddi on November 3, 2009 08:13 AM
Posted to Indiana Courts

Ind. Courts - Court of Appeals visits Benton Central High School

Meranda Watling reports on a Court of Appeals oral argument held at Benton Central High School in Oxford, Indiana last week. The case was William E. Riley v. State of Indiana, listed in last week's upcoming COA oral arguments. From the Lafayette Journal Courier story:

Judges Patricia Riley of Rensselaer, Margret Robb of West Lafayette and Paul Mathias of Fort Wayne presided over an appeal on a case from Lake County. * * *

About 300 juniors and seniors attended the Benton Central hearing. So did a handful of local attorneys and Benton Circuit Court Judge Rex Kepner.

Audience questions ranged from how accurately the media portrays them -- not very, according to the judges -- to what the visiting judges thought of the school's neighboring windmills -- they were impressed.

Mathias said that although the job can be time consuming, eating as many as 50 to 60 hours a week, it's a privilege.

"Even though we do appeals ... 99.5 percent of the time (the decision on a case) stays the way the trial court resolved them," Mathias said.

"We take our job very seriously because we know the decisions we make change peoples lives."

Robb told the students that what they see on television and in movies is over-dramatized for entertainment purposes. Cases take years to solve, not 50 minutes. There isn't always DNA evidence. And when there is, results don't come back in five minutes.

"Sometimes, (the media) gives a false perception of what goes on," Robb said.

John Koehler, who teaches government and economics at the school, said the ability for his students to see state government action taking place live is a great supplement to their studies. He said often the curriculum in those courses focus on the national level.

"This is beneficial for our kids to see the state-level government like this actually functioning," Koehler said. "It takes court out of the entertainment world and the kids get the behind-the-scenes look."

Posted by Marcia Oddi on November 3, 2009 08:04 AM
Posted to Indiana Courts

Monday, November 02, 2009

Courts - Kentucky Supreme Court won't suspend sex offender ruling

The AP is reporting:

FRANKFORT, Ky. -- The Kentucky Supreme Court on Monday denied the state's request to suspend its recent ruling which loosened restrictions on where convicted sex offenders may live.

Attorney General Jack Conway last week asked the state's supreme court to delay implementation of the ruling while the decision was appealed to the U.S. Supreme Court. * * *

An order from the Kentucky court Monday says its ruling would remain in effect during an appeal to the U.S. Supreme Court.

Here is the story by Beth Musgrave of the Lexington Herald-Leader. It begins:

FRANKFORT—The Kentucky Supreme Court has denied a stay of an October ruling that allows sex offenders who were convicted before July 2006 to choose where they live without restrictions.

Kentucky probation and parole officers were enforcing restrictions despite the October ruling after Attorney General Jack Conway asked the Kentucky Supreme Court to suspend its ruling while he asks the U.S. Supreme Court to hear the case.

The Kentucky Department of Corrections made that decision on the advice of its own lawyers. [ILB - This was an issue re the LCJ editorial discussed in earlier ILB entries.]

On Monday, the state Supreme Court, in a one-paragraph order, denied Conway's request for a stay.

Lisa Lamb, a spokeswoman for the Kentucky Department of Corrections, said sex offenders who were convicted before July 2006 will no longer have to comply with those living restrictions.

Allison Martin, a spokeswoman for Conway, said the office will ask the U.S. Supreme Court to issue a stay.

"We will be filing a motion with the U.S. Supreme Court for a stay while it considers whether or not it will hear Kentucky's case," Martin said.

See this ILB entry from earlier today and this one from Oct. 31.

What about Indiana? In State of Indiana v. Anthony W. Pollard (6/30/09) our Supreme Court ruled:

The question presented is whether a section of the Indiana Sex Offender Registration Act that we refer to as the “residency restriction statute” constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution. In this case the answer is yes.

See this ILB entry from July 1st, plus this list of related entries. Re how the decision is being implemented in Indiana, see this entry from Oct. 14th, headed "Two Lafayette sex offenders told they can go home."

The story today reports the Kentucky attorney general now "will ask the U.S. Supreme Court to issue a stay."

Incidentally, the SCOTUS is already hearing a ND Indiana federal sex offender case - the appeal of the 7th Circuit's decision in Carr v. United States. The question is whether SORNA (the Sex Offender Registration and Notification Act) can be applied retroactively. For more, see this ILB entry from Sept. 30th and this one from Dec. 22, 2008.

Posted by Marcia Oddi on November 2, 2009 06:29 PM
Posted to Courts in general

Ind. Decisions - Transfer list for week ending October 30, 2009

Here is the Clerk's transfer list for the week ending October 30, 2009. It is four pages long.

Four transfers were granted last week. They are detailed in this ILB entry from earlier today
__________

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 Oct. 9, 2009 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 November 2, 2009 03:39 PM
Posted to Indiana Transfer Lists

Ind. Courts - Still more on "School sued for punishing teens over MySpace pix"

Updating this ILB entry from Oct. 31st (which includes a link to the complaint, posted by the ILB), and this ILB entry from Oct. 30th, ABC News now has a story by Sarah Netter, sub-headlined "ACLU Alleges Teen Athletes Were Unfairly Punished For Sexy Photos Taken on MySpace." A quote:

"I don't think this is a unique problem of trying to define that line as to where the school stops and where student expression begins," Indiana ACLU Legal Director Ken Falk, also the girls' attorney, told ABCNews.com today.

Posted by Marcia Oddi on November 2, 2009 03:31 PM
Posted to Indiana Courts

Ind. Law - More on "Some fear charter schools may become sports powers"

Updating this ILB entry from Oct. 23rd which quoted an Indianapolis Star story headlined "IHSAA rules that Butler recruit Chrishawn Hopkins is ineligible for senior season at Herron: Organization says Butler recruit transferred for athletic reasons; senior must wait 365 days after last game at Manual", the Star's Kyle Neddenriep reports this afternoon:

Chrishawn Hopkins will play his senior season of high school basketball after all.
The 6-1 Butler University recruit has transferred back to Manual High School and will be granted full athletic eligibility, Indiana High School Athletic Association commissioner Blake Ress said.

Hopkins had transferred to Herron, a Downtown charter school before his senior year, but was his transfer was deemed to be for athletic reasons by the IHSAA, making him ineligible for 365 days since his last game at Manual as a junior.

“We try not to make them ineligible everywhere,” Ress said. “So he had the option to [go] back to Manuel, where we thought he really belonged, and regain eligibility. There had been a hearing scheduled for an appeal, but I guess they decided against it.”

Posted by Marcia Oddi on November 2, 2009 01:59 PM
Posted to Indiana Law

Ind. Courts - Two 7th Circuit opinions pending before the SCOTUS

One was before The Court today,Jones v. Harris Associates. See this WSJ Law Blog entry headed "On Tap at the Supreme Court: Posner v. Easterbrook."

The second was just granted cert today, New Process Steel v. NLRB. USA Today's story is headed "High court to decide if two-person Labor Board legal" and begins:

WASHINGTON (AP) — The Supreme Court said Monday it will decide whether two people can do the work of five when it comes to resolving labor-management disputes in the workplace.

The National Labor Relations Board, which for decades has had the responsibility to police many of these disputes, has operated with only two members — and three vacancies — for more than a year. The reason for this is that Democrats who retook control of Congress in 2006 objected to President George W. Bush's labor policies, and thus refused to confirm his nominees.

But the two NLRB members still in place have continued to issue decisions, making about 400 in the last 16 months.

The U.S. Courts of Appeal have split on whether decisions made by only two members of the board are legal. The U.S. Court of Appeals in the District of Columbia said an NLRB decision handed down last year was invalid because it was made by just two members while the 7th U.S. Circuit Court of Appeals in Chicago took the opposite position.

It ruled that a vote by the two members was appropriate and binding.

Posted by Marcia Oddi on November 2, 2009 01:22 PM
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (0):

NFP civil opinions today (3):

Martha Nyatawa v. Corvee, Inc. (NFP) - In a per se appeal of a small claims decision: "It will come as small solace to Nyatawa that many share her frustration and confusion when it comes to matters of insurance. Moreover, we are no better equipped than the trial court professed to be to untie for her the Gordian knot that often results when more than one medical insurer is involved in questions of coverage for medical treatment. Be that as it may, Nyatawa has presented absolutely no basis on appeal for even questioning the trial court's judgment, much less reversing it."

Grange Mutual Casualty Company v. Betty Jean Rady (NFP) - "Quite simply, Grange designated uncontradicted evidence of a waiver of uninsured and underinsured coverage signed by Rady and uncontradicted evidence that the waiver referred to the Policy. Because Rady has failed to carry her burden to show that a genuine issue of material fact remains, we conclude that the trial court incorrectly denied Grange’s summary judgment motion. We remand with instructions to enter summary judgment in favor of Grange."

Term. of the Parent-Child Rel. of A.S.; L.P. v. Tippecanoe Co. Dept. of Child Svcs. (NFP)

NFP criminal opinions today (3):

Daniel A. Robinson v. State of Indiana (NFP)

Terry Smith v. State of Indiana (NFP)

Bobby D. Hawkins v. State of Indiana (NFP)

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

Ind. Law - Update on Ed DeLaney’s medical condition

The ILB has just received this statement re the condition of Indianapolis attorney and legislator Ed DeLaney:

Indianapolis, IN. – In lieu of the previously scheduled press availability, please accept this statement from Ann DeLaney, wife of Representative Ed DeLaney:

“We want to thank everyone for their huge outpouring of support for Ed, including Senator Bayh, Congressman Carson, Speaker Bauer, Senator Simpson, Mayor Ballard, and people around the state. We are so grateful for the strong support and expressions of

Ed is doing quite well considering the circumstances. Ed and I would like to thank the doctors and medical staff at Methodist hospital for their excellent care. He has five broken ribs and broken bones around his eye socket that will require surgery at a later date. He also has several abrasions and bruises.

“He is in a lot of pain, but his spirits are good. We are taking comfort in the prayers and expressions of our friends, family and well-wishers.”

This is good news in what has been a frightening incident for Ed's family and many friends.

Posted by Marcia Oddi on November 2, 2009 12:11 PM
Posted to General Law Related

Ind. Decisions - Four cases granted transfer Oct. 29

The Clerk's transfer list should be available later today. Meanwhile, the ILB has received notice that four transfers were granted Oct. 29th:

• Andrew King v. State of Indiana -- Cause No. 49A04-0810-CR-609 -- see this ILB summary from June 30th that included:

  [This is a] 27-page opinion by Judge Crone dealing with online child solicitation. The issues are set out as:

  I. Did the trial court abuse its discretion in admitting certain evidence? [ILB - The opinion discusses admission of internet evidence in depth here]

  II. Is impossibility a defense to the crime of attempted dissemination of matter harmful to minors?

  III. Did the State establish the corpus delicti of the crimes?

• Steven W. Everling v. State of Indiana -- Cause No. 48A05-0903-CR-153 -- This case is featured in this Aug. 21st ILB entry relating to a complaint against former Madison County Circuit Court Judge Fredrick Spencer.

• Lyn Leone v. Comm'r, BMV -- Cause No. 49A02-0804-CV-377 -- see ILB entry from Oct. 30th.

• Subhen Ghosh v. Indiana State Ethics Commission and Office of the Inspector General -- Cause No. 32A01-0812-CV-377 -- see this ILB summary from Aug. 17th which quotes the opinion: "[W]e cannot say substantial evidence supports the amount of the sanction."

Posted by Marcia Oddi on November 2, 2009 11:41 AM
Posted to Indiana Transfer Lists

Courts - Louisville paper gets it wrong re Kentucky AG "advising" the Corrections Department not to follow a recent state Supreme Court ruling

The Louisville Courier Journal has pulled the editorial included in this ILB post from Oct. 31st. It has published a retraction.

In addition, today's LCJ includes this letter from Kentucky Attorney General Jack Conway, headed "Conway: editorial based on 'factual errors'".

As Kentucky's Attorney General, I understand and accept that some of my positions may occasionally draw criticism from your editorial board. However, when you publish an editorial based on factual errors, I must respond and correct the record.

Your editorial titled “Ignoring the Court” on Oct. 31, is based on an erroneous premise. In that piece, you wrote (regarding the recent state Supreme Court decision striking down a portion of Kentucky's sex offender law restricting where offenders convicted prior to 2006 may live) that “Mr. Conway has asked Kentucky probation and parole officers to continue to enforce the contested law — in essence, disregarding the high court's ruling.” You additionally wrote that I and my staff “advise the Corrections Department not to follow a recent state Supreme Court ruling.” These are factually incorrect statements.

Let me be clear — I and my staff have not advised the Corrections Department or its officers on this issue, nor have we been asked to do so by the Corrections Department. The Kentucky Corrections Department has its own general counsel and is acting of its own accord. I would never tell an agency of state government, which has its own general counsel and which I do not represent, to ignore a ruling of the Kentucky Supreme Court. I have too much respect for the court system, and to do so would be completely at odds with my oath as Attorney General and my duty as a lawyer.

Moreover, it is ironic that Andrew Wolfson's article, published the same day as your editorial, got the facts right when he wrote that a spokeswoman for the Corrections Department stated that, “on the advice of its general counsel, the department has told its officers not to follow the ruling until the state Supreme Court decides whether it will be stayed.” Mr. Wolfson also correctly points out that my office has sought a stay of the ruling from the Kentucky Supreme Court as we prepare to ask the U.S. Supreme Court for review.

And I do plan to seek review by the U.S. Supreme Court of this important matter. I have the statutory responsibility to defend laws passed by the General Assembly, and many states have laws similar to Kentucky's that have been upheld by their courts. Therefore, I plan to ask the U.S. Supreme Court to provide clarity on this issue. I understand the constitutional ban on retroactive punishment, but we must also consider the public's interest in its safety and limiting offenders' proximity to areas where children congregate. Only the U.S. Supreme Court can resolve this disagreement among state courts and apply this balancing test.

While you may certainly disagree with my decision to appeal, I would never ignore a ruling by our state's highest court. I respect our justices and the principle of judicial review.

JACK CONWAY
Kentucky Attorney General
Frankfort, Ky. 40601

Posted by Marcia Oddi on November 2, 2009 11:10 AM
Posted to Courts in general

Ind. Law - "When a public defender is also a defendant"

That is the headline to this long, front-page story today in the Indianapolis Star, reported by Heather Gillers. Here is the side-bar summary:

The issue: Should a defense attorney who is facing criminal charges disclose that information to a client who is facing charges filed by the same prosecutors?

What we found: Many legal experts believe this is a conflict of interest. Federal courts and the American Bar Association also believe attorneys should disclose such information, but no law requires it -- and neither does the Marion County public defender -- typically leaving such decisions to attorneys. Some attorneys do. But some don't.

The story begins:

When Mark Batey met with his public defender earlier this fall about a pending battery charge, Batey had no idea how well the attorney understood his predicament.

At the same time Batey's lawyer was representing him, that lawyer was fighting the same charge -- battery -- from the same Marion County prosecutor's office.

But Batey didn't find out about the potential conflict back then. He found out late last month.

And he didn't find out from his lawyer or anyone else in the public defender's office. He found out from The Indianapolis Star.

Batey's case is not unique. Because there is no legal requirement to disclose such information, The Star found it is mostly left up to individual attorneys to make that call. And they don't always do so.

All of which troubles legal experts, who think defense attorneys should disclose such potential conflicts of interest to their clients. Federal courts also have held that attorneys need to disclose such information.

The problem, they stress, is the temptation for a defense attorney to defend a client less vigorously either to curry favor with prosecutors or to at least not antagonize them.

Failing to tell a client about a pending charge from the same prosecutor's office, several law professors said, likely violates professional responsibility rules that say clients have a right to know when lawyers' personal interests conflict with those of their client.

"There is no doubt in my mind that the best way to proceed is for the lawyer to fully inform the client," said Charles G. Geyh, associate dean of research at Indiana University Maurer School of Law in Bloomington. "Failing to do so would probably be a violation of the rule."

But individual attorneys have different opinions on just how to define a personal conflict of interest.

Marion County's chief public defender, Robert Hill, said a pending charge -- even from the same prosecutor's office -- is not a conflict of interest and therefore need not be disclosed under professional responsibility guidelines. His predecessor, David Cook, also did not require disclosure.

Posted by Marcia Oddi on November 2, 2009 10:32 AM
Posted to Indiana Law

Law - "Groups urge Senate leader to move ahead with Dawn Johnsen confirmation"

Updating the ILB's long list of earlier entries on Indiana Universtiy Mauer School of Law professor Dawn Johnsen's long-pending nomination to head the DOJ Office of Legal Counsel, Andy Graham of the Bloomington Herald-Times reported in a story ($$) Nov. 1st:

Harry Reid does have a few other things on his plate right now. Reforming health care comes to mind.

But the U.S. Senate Majority Leader was sent a letter Thursday — signed by the leaders of 39 civil rights, union, education and liberal advocacy groups — urging him to move forward with a floor vote on the nomination of Dawn Johnsen to head up the Obama administration’s Office of Legal Counsel.

Indiana University law professor Johnsen was selected by Obama for the post in January and approved by the Senate Judiciary Committee in March, but still awaits a confirmation vote on the Senate floor.

“This delay is extraordinary and unacceptable,” the letter read, in part, “(and) as you know, the Office of Legal Counsel performs a critical role in guiding executive branch activities, advising the President and his Administration on the constitutionality of proposed policies, legislation and executive orders...

“No one is better qualified for this position than Professor Johnsen.”

Johnsen served as deputy in the Office of Legal Counsel, then as acting head of the office, under President Bill Clinton.

Her boss there, Duke professor Walter Dellinger, spoke highly of his former colleague Friday.

“It is particularly dismaying Dawn Johnsen hasn’t gotten a vote because her credentials to head the Office of Legal Counsel are beyond question,” Dellinger said. “For five years, she was in a leadership position in that office, and her work there won praise across the board from senior officials of the FBI, CIA, the national security agencies and the other major departments with which she dealt.

“There is no guesswork involved in terms of how she would conduct the office. She conducted it in a non-partisan, effective manner that showed devotion to the rule of law.”

Republican objections have been rooted in Johnsen’s work as National Abortion Rights Action League (now NARAL Pro Choice America) legal director from 1988 to 1993.

The Constitution gives the Senate oversight of many presidential appointments. Senate rules allow individual senators or groups of senators to delay that process, perhaps indefinitely, via the filibuster and other mechanisms. Reid apparently hasn’t been able to muster the 60 necessary votes to override an implied filibuster and force a final vote on Johnsen’s nomination.

Historically, the Senate readily acquiesced to administration choices for executive branch jobs, particularly those below cabinet level.

“Going back to the 1990s and before, there was the presumption that presidents got to fill out the positions in their cabinet, sub-cabinet and beyond,” Ted Carmines, Center for Congress research director at IU said Friday. “They weren’t held up for any undue length of time.

“But that has changed the past 10 or 15 years when the minority party, whichever it was, has held up more nominations and blocked more. That’s clearly happening right now. It’s further evidence of the growing polarization and partisanship we’ve seen in the legislative body. These nominations haven’t been pushed to the floor, haven’t been withdrawn and are just waiting for the Senate to deal with them. Usually, finally, they’re dealt with at some point.”

The letter to Reid maintained that in the 60 years since Senate rules changed to permit invoking cloture to close debate on nominations, only 24 executive branch nominations have required that vote to end filibusters — but that five such instances have occurred during the first nine months of the Obama administration.

IU political science professor Marjorie Hershey didn’t question those numbers, but echoed Carmines in saying many of those 24 previous instances likely occurred during the George W. Bush and Clinton administrations. She strongly defended the congressional oversight outlined by the Constitution.

“There are a lot of differing views about this sort of situation,” Hershey said. “One view is that it’s the president’s prerogative to decide who should head these offices and that Congress should rubber-stamp them. But I think that would run counter to the constitutional checks and balances. The president proposes, the Congress disposes.

“It isn’t the case that the president has carte blanche and Senate just bows to his will. The Senate is exercising its constitutional right and authority. And the current Republican minority is exercising its rights.”

Hershey noted that the Senate was created by the Founding Fathers to be a more deliberative body than the House of Representatives.

“The House was always going to have a lot more members and has different rules of operation,” Hershey said. “It’s more difficult to make a decision when there are more people in the room. So the House leadership has more power in determining what comes to the floor and who can offer amendments or comment and so on.

“The Senate has never worked that way. The rules of the Senate don’t permit the leadership to direct legislation, to order how the legislation will be dealt with, nearly as much as their House counterparts. And the Senate has the rule and tradition of the filibuster.”

Hence Harry Reid’s problem regarding Dawn Johnsen, whether to fight a nomination battle he might not win, and delay other key Senate business in the process.

Posted by Marcia Oddi on November 2, 2009 07:20 AM
Posted to General Law Related

Catch-up: What did you miss over the weekend?

Stats for the ILB over the weekends fall to one-third or less of these during the week, although the ILB itself keeps puttering along. Sometimes the best posts occur over the weekend, when there is more time. Hence this new Monday feature - "What did you miss over the weekend?"

From Sunday, Nov. 1, 2009:

• Ind. Law - More on: Indianapolis attorney Ed Delaney reportedly brutally attacked, perhaps by another attorney
• Ind. Courts - "Change of venue shifts Indy trial to Valparaiso"
• Law - "Digital Data Makes For A Really Permanent Record"
• Law - "GQ Ranks Elizabeth Warren Among D.C.’s Most Powerful"
• Ind. Gov't. - More on "Jeff steel plant fined $240,000 for violations found after worker died"
• Environment - "Coal Combustion Residue: Status of EPA’s Efforts to Regulate Disposal"

From Saturday, Oct. 31, 2009:

• Ind. Law - Indianapolis attorney Ed Delaney reportedly brutally attacked, perhaps by another attorney
• Ind. Courts - "St. Joseph County officials are saying little about Nemeth case"
• Ind. Gov't. - Following up on "Lights Out at the Penitentiary: Strapped States are Shutting Prisons"
• Courts - Ky AG advises the Corrections Department not to follow a recent state Supreme Court ruling as he appeals it. to SCOTUS
• Ind. Courts - More on: Notre Dame sues former employee over tip
• Ind. Courts - "Hammond Mayor irritates judge, talks of murder case: Court had banned discussion about Hammond homicide"
• Ind. Courts - More on "School sued for punishing teens over MySpace pix"
• Ind. Decisions - Transfer granted in BMV / Social Security Administration records case

From Late Friday, Oct. 30, 2009:

• Ind. Decisions - What happens when a case is settled after transfer is granted?
• Ind. Courts - "School sued for punishing teens over MySpace pix"

Posted by Marcia Oddi on November 2, 2009 06:58 AM
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 11/2/09):

• Note: No oral arguments scheduled.

Next week's oral arguments before the Supreme Court (week of 11/9/09):

• Note: The Supreme Court's calendar for the entire month of November is currently blank.

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

---

This week's oral arguments before the Court of Appeals (week of 11/2/09):

Tuesday, November 3rd

• 1:30 PM - Bradley J. Love vs. Robert Rehfus and Sugar Creek Township - In the case before us, Bradley Love, a former employee of the Sugar Creek Fire Department, claims that he was fired by Fire Chief Robert Rehfus for exercising his First Amendment Rights by commenting via email on the 2006 trustee election. He maintains that the trial court erred by summarily dismissing his Complaint because: (1) his email did not contain recklessly false statement and thus should have been afforded protection under the First Amendment of the United States Constitution; and (2) Love failed to establish municipal liability in the Sugar Creek Township because the termination decision was not made by a "municipal policy-maker" pursuant to Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) and its progeny. Love now requests us to review both of the trial court's alleged errors. The Scheduled Panel Members are: Chief Judge Baker, Judges Friedlander and Riley. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 11/9/09):

Next Tuesday, November 9th

• 12:30 PM (CST) - Steven Barnard v. Metro Security Forces, Inc., et al - Steven Barnard sued Metro Security Forces, Inc. ("Metro") for personal injuries he allegedly sustained when he was pushed by a man wearing an "Usher" tag at a concert. The trial court granted summary judgment to Metro, finding that the designated evidence showed that Metro provided only uniformed guard services at the venue and therefore there was no genuine issue of material fact regarding Metro's liability because the man wearing the "Usher" tag was not a Metro employee. Barnard appeals the trial court's grant of summary judgment. The Scheduled Panel Members are: Judges Robb, Mathias and Bradford. [Where: Michigan City High School, 8466 Pahs Road, Michigan City, Indiana]

Next Thursday, November 12th

• 2:30 PM - Michael Greer and John Maggi vs. Edwin G. Buss, Commissioner of the Indiana Department of Corrections, et al. - Michael Greer and John Maggi filed a proposed class action seeking declaratory and injunctive relief with respect to the Indiana Department of Correction (DOC) policy that individuals convicted of certain sex or violent offenses which required registration for a ten-year period must register for an additional ten-year period upon a subsequent conviction for any criminal offense. According to DOC, such additional registration was required by statute. Greer and Maggi appeal the trial court order that both dismissed their proposed class action and granted summary judgment to DOC thereon. The Scheduled Panel Members are:Judges Darden, Robb and Mathias. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.

---

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

Posted by Marcia Oddi on November 2, 2009 06:41 AM
Posted to Upcoming Oral Arguments

Sunday, November 01, 2009

Ind. Law - More on: Indianapolis attorney Ed Delaney reportedly brutally attacked, perhaps by another attorney [Updated]

Updating this ILB entry from yesterday, Indy 6 News now has this more complete account.

[Updated 11/2/09] Today's Indianapolis Star has this story speculating n the cause for the incident.

Posted by Marcia Oddi on November 1, 2009 07:27 PM
Posted to Indiana Law

Ind. Courts - "Change of venue shifts Indy trial to Valparaiso" [Updated]

James D. Wolf, Jr. reports today in the Gary Post Tribune:

VALPARAISO -- Visitors to the Porter County Courthouse this week will find Indianapolis law enforcement officers added to Porter County Sheriff's police security, and Indianapolis television crews outside the building.

Those will be the most obvious differences as the county hosts the trial of a man accused of shooting an Indianapolis police officer.

The trial of Brian Reese, 37, received the change of venue because of extensive media coverage in Marion County.

Superior Court Judge Lisa Borges, the prosecutors and defense attorneys will all come from Marion County, and they will choose Porter County residents as jurors Monday.

The assumption is that Porter County residents have not been tainted by publicity from coverage of the attempted murder charge.

The trial is expected to last into next week and will take place in Superior Court on the second floor of the courthouse in Valparaiso.

Judge Mary Harper, who usually presides over that courtroom, will be gone for the week.

The trial should cost Porter County little more than inconvenience.

Under Indiana law, the county where the charges were filed is required to cover change-of-venue costs.

That includes transportation and boarding of the witnesses and the defendant, cost of prosecution and legal proceedings and cost of increased security.

"Each agency is paying its share for its presentation of the case," said Mario Massillamany, the Marion County prosecutor's spokesman.

He expects to be on hand Monday to work out media access to the courtroom, which will be limited by media passes.

From the Indianapolis Star's "Behind Closed Doors" column today:

Marion County Prosecutor Carl Brizzi's trial calendar has been full after a nearly four-year dry spell.

This month, the Republican tried his first case since winning a second term as prosecutor in 2006.

He spent two weeks in a courtroom as part of a team that won convictions on all counts against Desmond Turner in the Hamilton Avenue slayings of seven people. A judge also granted Brizzi's request for a life sentence without parole.

In the coming week, Brizzi will flex his prosecutorial muscles again, this time at the trial of Brian Reese, which has been moved to Porter County because of publicity.

Reese is charged with attempted murder in the near-fatal wounding in July 2008 of Indianapolis Metropolitan Police Department officer Jason Fishburn during a foot chase.
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Brizzi last participated in a trial in December 2005. He has planned on others since then, he says. But as luck would have it, all have ended in guilty pleas.

There will be another reunion, of sorts, at the Reese trial. Marion Superior Court Judge Lisa Borges, a senior adviser to Brizzi during his first term, will preside over the trial.

"I better watch my P's and Q's," Brizzi said last week during a news briefing on the trial. Then again, he said, "I had to watch my P's and Q's when she was my chief of staff."

[Updated 11-2-09] Jon Murray has a long story on the upcoming trial in today's Indianapolis Star. The headline: "Intent to kill officer is the question as trial starts: Jury will be picked in Valparaiso to hear Fishburn shooting case."

Posted by Marcia Oddi on November 1, 2009 06:00 PM
Posted to Indiana Courts

Law - "Digital Data Makes For A Really Permanent Record"

The ILB wrote Oct. 8th on the "Streisand effect", when, for example, an attempt to expunge past criminal records instead creates additional public records.

And even if a record is expunged, often it isn't really. NPR's Martin Kaste had a nearly 8-minute report on All Things Considered Oct. 29 that began:

There was a time when defense lawyer Robert Perez did a brisk business expunging criminal records. People who'd been acquitted of criminal charges could clear the record and start over with their lives.

But no more.

"They find out everything," the suburban Seattle lawyer says. "There's no such thing as privacy of criminal records anymore."

Perez says prospective employers and landlords will find out about the criminal record anyway because they use private database services that are unaffected by a court's expungement order.

"It's a big problem because these people are being confronted by the situation where they've told an employer — as they're entitled to — that this never happened," Perez says. "And the employer has conflicting information. They don't get the job, and they never learn why."

Information doesn't fade the way it used to. Documents that once upon a time could be counted on to be filed and forgotten are now finding an afterlife in digital, searchable form.

This is the last of a 4-part series. The earlier stories were:

• Digital Bread Crumbs: Following Your Cell Phone Trail Oct. 28, 2009
  
• Is Your Facebook Profile As Private As You Think? Oct. 27, 2009
  
• Online Data Present A Privacy Minefield Oct. 26, 2009

Posted by Marcia Oddi on November 1, 2009 08:04 AM
Posted to General Law Related

Law - "GQ Ranks Elizabeth Warren Among D.C.’s Most Powerful"

That from this entry by Jacqueline Palank in the WSJ Bankruptcy Blog.

See the entire list of 50 here, at GQ.

Posted by Marcia Oddi on November 1, 2009 08:00 AM
Posted to General Law Related

Ind. Gov't. - More on "Jeff steel plant fined $240,000 for violations found after worker died"

Updating this ILB entry from Oct. 29th, Chris Sikich reported in the Indianapolis Star Oct. 30th:

The Indiana Department of Labor has issued several fines that total $191,000 against a Noblesville-based company for several safety violations.

The department issued the fines this week against King Systems, 15011 Herriman Blvd., which makes anesthesia and respiratory care products. No one died or was seriously injured in any of the incidents for which the company was fined.

However, the Department of Labor also issued a $240,000 fine against Steel Dynamics’ plant in Jeffersonville. That case did involve a death.

Sean Keefer, deputy commissioner at the Department of Labor, said those are the highest fines since 2006 for any Indiana company. The department does about 2,000 to 2,500 inspections annually, he said. The state had 132 workplace fatalities last year.

Keefer said King Systems’ violations included putting employees at risk from dangerous gases. He said some of the violations were either repeated or knowing in nature.

Posted by Marcia Oddi on November 1, 2009 07:57 AM
Posted to Indiana Government

Environment - "Coal Combustion Residue: Status of EPA’s Efforts to Regulate Disposal"

The Government Accountability Office has issued this 38-page congressional briefing, dated Oct. 30th.

Posted by Marcia Oddi on November 1, 2009 07:53 AM
Posted to Environment

Saturday, October 31, 2009

Ind. Law - Indianapolis attorney Ed Delaney reportedly brutally attacked, perhaps by another attorney

The Indianapolis Star is reporting that Indianapolis attorney and state representative Ed DeLaney was attacked in Carmel by "his prospective client, Augustus J. Mendenhall, 38." More from the story:

[Carmel police say that Mendenhall] punched DeLaney and wielded a gun. Mendenhall is being held in the Hamilton County Jail and faces several felony charges, including attempted murder.

Ann DeLaney, Edward DeLaney's wife, said her husband had never met his attacker before today. He thought Mendenhall was interested in buying land in the area and wanted legal advice, she said. * * *

Edward DeLaney suffered several head injuries, Ann DeLaney said. He's bruised and swollen and has broken bones above and below one eye. Doctors are doing tests to determine whether his ribs are broken. He's in good spirits and has been joking with the medical staff, she said.

"Under the circumstances," she said, "he's been doing very well."

A check of the net shows an Augustus J. Mendenhall on the list of those successful on the July 2008 Indiana Bar Examination. Here is a Linkedin page for the same new attorney, Augustus J. Mendenhall who, according to the Roll of Attorneys, lives in Plainfield and was admitted to the Indiana bar on Oct. 17, 2008.

Posted by Marcia Oddi on October 31, 2009 06:17 PM
Posted to Indiana Law

Ind. Courts - "St. Joseph County officials are saying little about Nemeth case"

Erin Blasko has this report today in the South Bend Tribune. (For background, see this ILB entry from Oct. 29th.) Some quotes:

County officials are saying very little about an order issued earlier this week in a legal battle between the county and Probate Judge Peter Nemeth.

The order, handed down Wednesday, rules against the county and requires it to release more than $300,000 to Nemeth to pay raises and make physical improvements at the Juvenile Justice Center. It also requires county commissioners to pay Nemeth's legal fees, totaling more than $18,000.

Officials did not comment on the order Wednesday because some had not yet seen it, and others were unavailable. A Tribune reporter then supplied the order to commissioners and to Deputy Auditor Cindy Bodle on Thursday. [The ILB has not obtained a copy.] * * *

The order stems from a judicial mandate issued by Nemeth earlier this year directing the County Council and commissioners to appropriate $60,208 to him to provide raises to eight JJC employees and $295,950.98 to renovate the JJC facility.

State judicial rules allow judges to issue judicial mandates requiring the release of funds if it is believed those funds are necessary to administer justice.

The appropriations were approved by the council and commissioners in late 2008, but commissioners never signed the requisition forms. Kovach refused, and Mark Dobson and Steve Ross were preparing to leave office.

The money for renovations was to come from an unspent JJC personnel fund and the raises from juvenile probation user fees.

As a result of the commissioners' inaction, money in the unspent personnel fund reverted to the general fund to balance the 2009 budget.

In ruling against the county, William Satterlee, a Valparaiso attorney appointed special judge in the case, argued the mandated expenditures would not financially burden the county because the $295,950.98 that reverted back to the county became unappropriated revenue in the 2009 budget.

He also said the county failed to prove the expenditures were unnecessary and/or extravagant.

Asked Wednesday about the order, Nemeth said it proved he was on the side of justice in the case.

"Well, I'm certainly pleased the rule of law prevailed," Nemeth said. "I think the rule of law was on our side from the beginning."

Nemeth said it was unfortunate the county chose to oppose the mandate, calling the decision a "waste of taxpayer money."

If the county accepts Satterlee's order, it will take effect within 30 days, according to Jim Masters, Nemeth's attorney.

[County attorney Jim] Groves, however, has indicated the county has no such intention, and that it plans to allow the case to proceed to the state Supreme Court for review.

If the Supreme Court upholds Satterlee's ruling, the county would likely cover expenditures mandated in the order, Bodle said, by first looking to tap unspent JJC funds.

If the JJC has no unspent funds, or if Nemeth balks at their use, the county would then be forced to either make cuts in other departments, Bodle said, or tap its Rainy Day and County Economic Development Income Tax, or CEDIT, funds.

The latter, she said, would threaten the sustainability of those funds, which represent a sort of financial safety net for the county. * * *

For his part, Nemeth said he hoped he would not have to get into another "legal scrabble" with the county concerning the execution of the order.

The ILB believes: (1) this was the first mandate action pursued under the revised Supreme Court rule re mandates; and (2) the possibility of another mandate has been raised at this year's St. Joe budget meetings.

Posted by Marcia Oddi on October 31, 2009 10:01 AM
Posted to Indiana Courts

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

This ILB entry from Sept. 5th quoted stories from the WSJ and the LA Times titled, respectively, "Lights Out at the Penitentiary: Strapped States are Shutting Prisons," and "Cash-strapped states revise laws to get inmates out: Mandatory sentencing laws are relaxed, parole is accelerated, and time off for good behavior is increased as states scramble to save money."

Contrast those stories with an Indianapolis Star story titled "Killer's early release in pastor's 1993 slaying sparks outrage" quoted in this Sept. 7th ILB entry, and a NWI Times story headed "Ind. loophole lets some life sentences end early," quoted in this Oct. 10th ILB entry.

Yesterday's Fort Wayne Journal Gazette published this editorial titled "When prisons are full":

Tough-on-crime initiatives often run into the roadblock of financial realities. Such is the case in Indiana’s prison system, which has effectively reached capacity for higher-security adult men yet still takes in 1,000 or more new prisoners each year, as Niki Kelly’s Sunday story explained.

Yet Indiana lawmakers denied proposals for two prison expansions this year, and for good reason. Not only does prison space cost money, but it also requires more staff, adding yearly expenses. And society’s experience with prisons has been if you build it, they will come: With less incentive to seek alternatives, the judicial system will fill prisons.

Many Hoosiers like the idea of putting criminals in prison and forcing them to serve entire sentences, but they hedge at the monumental cost.

In addition, prisons have bleak records in reforming inmates.

So lawmakers again must examine tough laws that put Hoosiers in prison for drug possession and other non-violent crimes. They must again examine ways to expand cost-effective programs such as drug and re-entry courts, which judge criminals but also help them with job and life skills to reduce their chances of re-offending.

They must continue to seek ways to make home detention and work-release programs available and secure.

Prisons are necessary to protect society from the most violent criminals, but alternatives for non-violent criminals are most cost-effective and can often achieve reformation when prison cannot.

Here is the lengthy Oct. 25th story by Niki Kelly referenced in the editorial. The headline: "State deals with rise in inmates, violent acts." Some quotes, from the beginning and end of the story:

INDIANAPOLIS – Every month, about 100 new prisoners stream into the Indiana Department of Correction, whether there is room for them or not.

The agency hasn’t received funding for new beds or additional guards in years – a reality that has pushed inmates, correctional officers and the public into potential danger.

Violence is on the rise in the prison system – an estimated 43 percent increase in inmate assaults and a projected 6 percent increase in staff assaults.

DOC Commissioner Edwin Buss said the situation is like waiting for a disaster.

"Every murderer or armed robber sentenced today has no bed waiting for them," he said. "It hasn’t had a traumatic effect yet, but I liken prison overcrowding to playing Russian roulette.

"Every year that we add more than 1,000 offenders is like putting a bullet in the chamber. It’s going to catch up to us sooner or later."

Indiana is housing 27,300 inmates – a number that has been growing between 1,000 and 1,200 every year. * * *

Gone are the days when Indiana was housing out-of-state prisoners because of a surplus of beds. Now, it has no open maximum-security or high-medium-security beds for adult male offenders, Buss said.

That means violent offenders are being bunked in lower-security dormitory spaces and bunks are being moved closer to fit more in, creating a potential powder keg. * * *

So what can be done about crowding aside from increasing prison capacity?

Buss said 6,000 offenders come in every year with sentences of six months or less, many for drug possession, fraud, forgery and other nonviolent offenses.

He encourages lawmakers to re-evaluate sentencing options for these crimes.

He said a few states tried to relegate offenders with sentences of less than a year to county jails. But jails didn’t have the necessary beds, either, prompting judges to retaliate by issuing sentences of one year and one day.

"If we had buckets of money, it wouldn’t be a problem, but we don’t have buckets," said Sen. Brent Steele, R-Bedford, chairman of the Senate Corrections, Criminal and Civil Matters Committee.

Steele is filing a bill for the 2010 legislative session which would allow non-violent offenders who have served at least half their sentence to post a bond to be released from prison early.

The percentage of the sentence that must be served is flexible, he said. But an important part of the program would be having a family member also sign the bond and take a role in the offender’s behavior on release.

"It’s like early parole," Steele said. "But with a financial stake."

Posted by Marcia Oddi on October 31, 2009 09:01 AM
Posted to Indiana Government

Courts - Ky AG advises the Corrections Department not to follow a recent state Supreme Court ruling as he appeals it to SCOTUS [But see corrections below]

"State to appeal ruling limiting sex-offender law" is the headline to a story dated Oct. 29th in the Louisville Courier Journal. Andrew Wolfson reports:

The Kentucky attorney general’s office has asked the state Supreme Court to delay enforcement of its Oct. 1 ruling throwing out part of the state’s sex-offender statute until the U.S. Supreme Court hears the case.

The attorney general’s office filed a motion Oct. 21 asking the state high court to stay its ruling that the law banning sex offenders from living near schools, day cares and playgrounds cannot be applied to those convicted before the statute was enacted in 2006.

The court ruled 5-2 that the statute was improperly imposed on people convicted before it went into effect. The U.S. and Kentucky constitutions prohibit laws that impose or increase punishment on criminal acts committed before the law's enactment.

Lisa Lamb, a spokeswoman for the state Corrections Department, said on the advice of its general counsel, the department has told its probation and parole officers not to follow the ruling until the state Supreme Court decides whether it will be stayed. * * *

The attorney general’s office has until Dec. 30 to file a petition with the U.S. Supreme Court to hear the case. No petition has been filed.

The U.S. Supreme Court rejects most cases, but the issue of whether sex-offender laws can be applied retroactively has surfaced in many states.

Under the Kentucky Supreme Court’s Oct. 1 ruling, sex offenders will still be required to register, but the residency restrictions enacted in 2006 cannot be applied to offenders convicted before that date.

Today the LCJ has an editorial headed "Ignoring the Court" [but see 11/2/09 correction below]:

Just because you can do something doesn't mean you should. Attorney General Jack Conway needs to remember the wisdom of that old admonition as he and his counsel advise the Corrections Department not to follow a recent state Supreme Court ruling as Mr. Conway appeals it.

On Oct. 1, the state's high court, in a 5-2 decision, said the law banning sex offenders from living close to schools, day care centers and playgrounds could not apply to those convicted before 2006, the year the law was enacted. (Earlier this year, the Indiana Supreme Court issued the same ruling for its state law.) Mr. Conway was not happy with the decision, which he said raised “serious concerns about the impact on public safety.” He indicated that he might appeal the ruling to the U.S. Supreme Court.

On Oct. 21, Mr. Conway's office filed a motion asking the state Supreme Court to suspend its ruling. The convicted sex offender who successfully challenged the state law has until Nov. 3 to oppose the Attorney General's motion to suspend the higher court's ruling, and Mr. Conway has until Dec. 30 to ask the U.S. Supreme Court to hear his case. In the meantime, the state Supreme Court hasn't issued an opinion as to the stay, and Mr. Conway has asked Kentucky probation and parole officers to continue to enforce the contested law — in essence, disregarding the high court's finding.

“Our position is that the Supreme Court decision is not final,” Lisa Lamb, spokeswoman for the state Department of Corrections, told the Lexington Herald-Leader . “We believe the former law is still in effect.”

That may be what they believe — and they provide copies of rules of procedure to back up their position, per the department's legal counsel. But the attorney general and his operatives ought not to be in the business of ignoring Supreme Court rulings they don't agree with, no matter how public-minded their intentions.

ILB - In some ways this appears to parallel the Indiana dispute over the COA Voter ID ruling negating the Indiana law and whether it applies to the Nov. 3 election, or whether it must be "certified" first. Thoughts?

[Correction posted 11/2/09] The ILB has received this note from the Office of the Kentucky General:

Dear Marcia,

The headline of your article re: Kentucky Attorney General Jack Conway’s decision to appeal the state Supreme Court’s recent ruling regarding sex offender residency restrictions is incorrect. If you read the article you posted, the Department of Corrections is relying on advice from its own General Counsel, not the Attorney General, in advising its probation and parole officers in how to enforce the law.

Attorney General Conway has not advised the department on this issue, nor has he been requested to do so. The Department of Corrections is not under the supervision of General Conway, it is under supervision of the Governor of Kentucky.

Please correct this headline as soon as possible. Thank you.

Sincerely,

Allison

Allison Gardner Martin
Communications Director
Kentucky Attorney General Jack Conway
700 Capital Avenue
Frankfort, KY 40601

In addition, the LCJ has now retracted the editorial quoted above - see this 11/2/09 ILB entry.

[Even more] Here is a link to the 29-page, 5-2 opinion itself - Comm. of Kentucky v. Michael Baker (Oct. 1, 2009).

Posted by Marcia Oddi on October 31, 2009 08:33 AM
Posted to Courts in general

Ind. Courts - More on: Notre Dame sues former employee over tip

Updating this Oct. 15th ILB entry, WSBT South Bend has an Oct. 30th story by Alicia Gallegos reporting:

The University of Notre Dame and a former catering employee who accepted a mistaken tip of nearly $30,000 have settled their legal dispute.

In court documents filed Wednesday, Sara Gaspar has agreed to pay back Notre Dame $16,859.79, about half of the original sum placed in her bank account.

The debt will be replenished slowly through payments of $50 each month, meaning that the entire debt likely would be repaid in about 28 years.

The case against Gaspar revolved around a mistaken gratuity that was placed in Gaspar’s bank account while she was a Notre Dame employee.

On April 17, the former catering employee was to be paid a gratuity of $29.87, but because of an error, court documents state, a total of $29,387 was deposited into her account.

Instead of returning the money, the recent lawsuit filed by the university claimed that Gaspar spent the extra cash on bills and a new car. * * *

As collateral to secure the agreement, Gaspar put up the car, a 2002 Volkswagen Jetta, she purchased earlier this year with cash from the large gratuity payment.

We hope she can strike a similar deal with the IRS.

Posted by Marcia Oddi on October 31, 2009 08:19 AM
Posted to Indiana Courts

Ind. Courts - "Hammond Mayor irritates judge, talks of murder case: Court had banned discussion about Hammond homicide"

Ruth Ann Krause reports today in the Gary Post Tribune:

Hammond Mayor Thomas McDermott Jr., was on the radio Thursday and Friday commenting on the case of two Hammond teens charged with felony murder after a representative of the Lake County Prosecutor's Office informed him of a gag order in the case.

The subject came up at a formal appearance for Gregory Brooks Jr., 18, and Reo Jon'Ta Thompson, 17, who have pleaded not guilty to four counts of murder in perpetration of a burglary, two counts of murder in perpetration of a robbery and nine other felony charges, including confinement and auto theft.

The charges were filed in the deaths of Milton and Ruby McClendon, whose bodies were found Oct. 19 in Calumet City, Ill., in Cook County Forest Preserve.

Chief Public Defender David Schneider informed Lake Superior Magistrate Kathleen Sullivan that McDermott was on the radio Thursday afternoon and Friday morning discussing the case.

Lake Superior Court Judge Clarence Murray issued the gag order barring "parties, counsel, law enforcement officials and court personnel" from publicly discussing the case.

Schneider said McDermott was on WBBM radio, where he made a statement that he understood there is a moratorium on the death penalty in Illinois, but not in Indiana. Friday morning, about 30 minutes before the teens were in court for their formal appearance, Schneider said McDermott was on WJOB radio wondering aloud whether the gag order applied to him as mayor. McDermott is a lawyer.

Trial Supervisor Mary Ryan said the order was faxed to McDermott's office.

A clearly irritated Sullivan said the order issued Wednesday was to ensure that the jury pool would not be tainted by comments made about the crimes or investigation that aren't contained in public records.

Lake County Prosecutor Bernard Carter said he personally would call McDermott and speak to him about the order.

Posted by Marcia Oddi on October 31, 2009 08:14 AM
Posted to Indiana Courts

Ind. Courts - More on "School sued for punishing teens over MySpace pix"

Updating yesterday's ILB entry, here is a story from Wed. Oct. 28th that the ILB missed, reported by Rebecca S. Green of the Fort Wayne Journal Gazette. Some quotes:

The American Civil Liberties Union has sued Smith-Green Community School Corp. and a principal in federal court on behalf of two girls punished for summer postings on MySpace.

Filed Friday in U.S. District Court in Fort Wayne, the lawsuit claims the two girls, both sophomore fall-sport athletes, were suspended from extracurricular activities for the entire school year because of sexually suggestive photographs posted on their pages on MySpace, a social networking site on the Internet.

The lawsuit names the district and Churubusco High School Principal Austin Couch, both individually and in his official capacity, and alleges that Couch and the district violated the girls’ First Amendment rights by how the situation was handled.

The ACLU seeks to have the case handled as a class-action on behalf of all students participating in, or who may participate, in extracurricular activities at Smith-Green Community Schools, according to court documents.

According to the lawsuit, the two girls, identified only by initials, participated in a sleepover this summer with friends from Churubusco High School.

During the sleepover, the girls took pictures of themselves “pretending to kiss or lick a large multi-colored novelty phallus shaped lollipop” as well as pictures of themselves in lingerie with dollar bills tucked in their clothing, according to court documents.

The girls posted the pictures on their MySpace pages, visible only to their online friends.

“They intended this to be humorous and all the participants considered it to be so,” the lawsuit said. “There was nothing in the pictures that identified the participants as attending Churubusco High School and there was no reference whatsoever in the pictures to (the school).”

But an unknown person with access to the photos downloaded them, printed copies and gave them to school workers including Couch, who promptly suspended the two girls from all athletic and extracurricular involvement for the year, according to court documents.

The school’s student handbook says the principal may bar students from participating in athletics if their conduct “in or out of school reflects discredit upon Churubusco High School … or creates a disruptive influence on the discipline, good order, moral or educational environment,” according to the lawsuit. * * *

“The forced counseling was humiliating to the plaintiffs and being forced to appear before the coaches to apologize for their intended humorous photographs … was profoundly embarrassing,” according to the lawsuit.

The plaintiffs seek a jury trial.

“The punishment … for expressive activity taken place outside of the (schools) which activity did not disrupt in any way educational activity violated the First Amendment,” according to court documents.

And because the policy exists, it is unconstitutional, the lawsuit alleges.

On behalf of the girls, the ACLU is asking a judge to prevent the school system from continuing to punish the two students and from interpreting the conduct policy to allow such punishment, as well as expunging all references to the matter from their records, according to court documents.

Today's Journal-Gazette has this editorial headed "School space vs. MySpace." Some quotes [emphasis by ILB]:

The promises and perils of social networking sites like Facebook and MySpace are challenging schools struggling to respond to new technology. Some are responding badly.

Churubusco High School is a prime example. Administrators there interfered in what was not a school matter and now find themselves as defendants in a lawsuit filed by the American Civil Liberties Union. * * *

The case is a classic example of a school district overreacting to an incident involving students, whose personal judgment is often limited by their maturity. The girls, no doubt, now realize the danger of posting anything online that they don’t want distributed.

But the punishment they were forced to face – for an incident in the summer, not on school property and not involving the school in any way – was out of line. Nancy Baer, an Albion parent, said she has no connection to the school district but was angered by the account of the punishment.

“I’m appalled that someone would even think up something as twisted as having these young girls go in front of all of these male coaches,” she said. “If it were reversed, and it was boys involved, would he have gotten a line of female faculty members together for them to apologize to? What do they think they’ve accomplished?”

The ACLU is asking a judge to prohibit the Smith-Green schools from continuing to punish the two students and from interpreting the conduct policy to allow such punishment, as well as expunging all references to the matter from their records, according to court documents.

Regardless of the case’s outcome, the school board should address discipline procedures at the school, and board members and administrators elsewhere should weigh their own procedures to ensure they don’t respond in the same unacceptable manner.

Here is a copy of the 9-page complaint in T.V. and M.K. v. Smith-Greem Community School Corp. The claim for relief:

The punishment of plaintiffs for expressive activity taken place outside of the Smith-Green Community Schools which activity did not disrupt in any way educational activity violated the First Amendment and to the extent that defendants have a policy allowing such punishment the policy is unconstitutional as violating the First Amendment as applied to such activity which is not disruptive.

Posted by Marcia Oddi on October 31, 2009 07:47 AM
Posted to Indiana Courts

Friday, October 30, 2009

Ind. Decisions - Transfer granted in BMV / Social Security Administration records case

The ILB has received no official notice, but a reader sent this note late this afternoon:

FYI, it's reported on the electronic docket that the Supreme Court yesterday granted transfer in Leone v. Comm'r, BMV, 906 N.E.2d 172 (Ct.App. 5/15/09), the 2-1 decision holding that the presence of an unresolved discrepancy between BMV and SSA records constituted a rational basis for suspending or revoking a driver's license or ID card, which are now needed to vote under the Voter ID Law.

The ILB has confirmed this via the clerk's docket - 49 S 02 - 0910 - CV - 00505.

Here is the ILB's May 15th entry discussing the Court of Appeals opinion in Lyn Leone, Omari Vaden, et al v. Commissioner, Indiana Bureau of Motor Vehicles, et al. The summary written in advance of the COA's oral argument read:

The Appellants-Plaintiffs contend that the Commissioner of the Bureau of Motor Vehicles has violated Indiana Law by relying upon the Social Security Administration's records to revoke their driver licenses or state issued identification cards. They contend that state law only requires them to provide their "legal name" in order to obtain a driver license or state identification card, but now the Bureau of Motor Vehicles is rejecting their valid driver licenses and state identification cards based upon conflicting records from the Social Security Administration.

Posted by Marcia Oddi on October 30, 2009 06:20 PM
Posted to Indiana Transfer Lists

Ind. Decisions - What happens when a case is settled after transfer is granted? [Updated]

The answer is in this Supreme Court "Order Dismissing Appeal and Vacating Oral Argument Setting," file-stamped Oct. 28, 2009. The case is Bunn v. INDOT. From the Order:

By order dated September 24,2009, the Court transferred jurisdiction of this appeal from the Court of Appeals to this Court, and set November 24, 2009 as the date for oral argument. The parties now file a "Notice Of Settlement And Stipulation For Dismissal Of Appeal," reporting they have reached a settlement and requesting the appeal be dismissed.

Being duly advised, the Court GRANTS the request, DISMISSES this appeal, and VACATES the oral argument setting. The Court of Appeals' not-for-publication Memorandum Decision in Bunn v. Indiana Dep't of Transp., Cause No. 50A03-0810-CV-504 (Ind. Ct. App. 2009), was vacated by the Court's earlier grant of transfer and shall be held for naught. See Appellate Rule 58(A). This appeal is at an end.

[Link added by ILB]

(As this case involved a NFP decision of the COA, it had no precedential value anyway under Rule 65(E).)

[Updated 10/31/09] A knowledgeable reader sends this note:

Thought you may be interested in knowing that, while a settlement after transfer normally will result in the appeal being dismissed, there have been several instances where the Supreme Court has not granted a party's motion to dismiss an appeal after transfer has been granted.

Whereas the Court of Appeals almost always will allow a party to dismiss an appeal after settlement (unless the decision has already been written and the opinion is ready to be handed down), the Supreme Court has more often kept a case active even after settlement because the issues involved are of enough concern that direction from the Supreme Court is warranted, even though the action is basically mooted as between the parties (especially if the legal issue is important, but is one that doesn't often present itself on appeal).

Posted by Marcia Oddi on October 30, 2009 04:27 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "School sued for punishing teens over MySpace pix"

An AP story by Charles Wilson is already receiving national attention. A few quotes from the lengthy story:

INDIANAPOLIS — Two sophomore girls have sued their school district after they were punished for posting sexually suggestive photos on MySpace during their summer vacation.

The American Civil Liberties Union, in a federal lawsuit filed last week on behalf of the girls, argues that Churubusco High School violated the girls' free speech rights when it banned them from extracurricular activities for a joke that didn't involve the school. They say the district humiliated the girls by requiring them to apologize to an all-male coaches' board and undergo counseling. * * *

The lawsuit, filed in U.S. District Court in Fort Wayne, names [Churubusco Principal Austin] Couch, the high school and the district as defendants and seeks unspecified damages. No hearing has been scheduled. * * *

The ACLU argues that the Indiana case is different. They say the photos were a joke intended to be shared only with friends. It wants the school district to expunge all references to the incident from school records and seeks to bar the school from taking similar action in the future.

"The problem is there's a line drawn. And the line is drawn as things that disrupt the school. And outside of that, the school has no say," Falk said.

"Imagine if everything teens texted back and forth to friends became fodder for school discipline."

Posted by Marcia Oddi on October 30, 2009 03:30 PM
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Ezra Bradshaw v. Gary Chandler and Affirmative Insurance Company, a 7-page, 5-0 opinion, Chief Justice Shepard writes:

A provision of the automobile insurance policy at issue here precludes any recovery under its uninsured motorist provisions unless the proceeding commences within two years after the accident. Injured driver Bradshaw first sued driver Chandler and Bradshaw’s insurance company mentioning only his policy’s underinsured motorist provisions. More than two years after the accident, Bradshaw learned that Chandler was excluded from the insurance policy on the vehicle he had been driving. Bradshaw amended his complaint to include his policy’s uninsured motorist coverage provisions. The parties ask us to determine whether bringing suit against Chandler and Bradshaw’s insurance company under the underinsured motorist section of the policy met the policy’s requirements. We hold that it did.

Posted by Marcia Oddi on October 30, 2009 02:17 PM
Posted to Ind. Sup.Ct. Decisions

Law - "NCAA clarifies its recruiting rules: Common practices in recruiting are no longer allowed"

Jeff Rabjohns reports today in the Indianapolis Star, in a story that begins:

Louisville is recruiting Pike High School basketball star Marquis Teague. It likely helped the Cardinals' cause that they hired a Pike assistant coach.

Under a set of guidelines approved Thursday, that's one of the practices the NCAA hopes to eliminate.

Intent on stopping college basketball coaches from buying influence over and access to recruits, either by hiring people close to the player or indirectly channeling money to the recruit, university presidents clarified what is not allowed under NCAA rules.

The NCAA Division I Board took a direct approach Thursday, addressing specific mechanisms used to channel money to recruits and recruits' handlers.

Among the actions now against the rules:

• Paying someone associated with a recruit to work a camp or clinic;

• Allowing someone associated with a recruit to volunteer at a camp or clinic;

• Paying a consulting fee to someone associated with a recruit;

• Paying excessive fees to "recruiting service" material of little value;

• Donating to a nonprofit that runs a non-scholastic basketball program;

• Calling a 1-900 service that connects to a recruit or anyone associated with a recruit.

Other proposals include prohibiting hiring someone associated with a recruit to a non-coaching position.

"The board gave unanimous support to reforms intended to eliminate the funneling of money to gain access to recruits," said Clemson president Jim Barker, chairman of the board. * * *

A number of ways exist for college coaches to funnel money to players, but three of the most common are: Hire a summer coach to speak at a camp or clinic and pay more than the usual fee; align yourself with an agent who will pay the player and his family, thus insulating the college coach from wrongdoing; and having boosters "donate" to summer programs, many of which have not-for-profit or nonprofit status.

Thursday's measures make two of those three against the rules.

"It re-regulates the recruiting environment in light of some of the changed behavior and conduct and provides a bright line with respect to the acts and conduct which are now prohibited," Big Ten commissioner Jim Delany said. "I'm not sure we've had the clarity we now have."

In addition to penalties for coaches, recruits who violate these rules can be banned from playing at that school.

Posted by Marcia Oddi on October 30, 2009 01:11 PM
Posted to General Law Related

Ind. Courts - Address confidentiality program for victims of domestic violence who have protective orders

Eric Bradner reports in the Evansville Courier & Press:

Indiana Attorney General Greg Zoeller said Friday he believes a state program that protects victims of domestic violence, stalking and sexual assault by keeping their addresses secret is underutilized.

The address confidentiality program is intended to protect those who have already obtained protective orders against their abusers and fear for their families’ safety by having their mail sent to a secure substitute address and then forwarded to them by the state.

Currently 150 Hoosiers are enrolled in the program. But 50,000 more people have court-issued protective orders in place in Indiana, according to the attorney general's office, though it was not immediately clear how many of those were domestic violence-related.

Zoeller said that leads him to believe even more people might be interested in having their locations guarded.

The program “can offer some piece of mind for victims that their new home is a safer place,” he said.

Zoeller said his office is working with county prosecutors and victims’ advocates in hopes of boosting awareness of the program.

Laura Berry, the executive director of the Indiana Coalition Against Domestic Violence, said those who are separating from an abusive relationship face a particularly high risk and could find the program helpful.

It could also aid in lowering the number of domestic violence deaths in Indiana. In the last six years, 411 Hoosiers have been killed in domestic violence-related incidents, including 51 in the period from July 1, 2008 to June 30, 2009, Berry said.

“Domestic violence shelters and nonresidential programs are ideally situated to assist victims in accessing the program and explaining its benefits,” she said.

Upon enrollment, those who enter the program have their mail sent to a secure address for two years. That time period can be extended if requested, the attorney general’s office said.

For more information on the address confidentiality program, contact the attorney general’s office by phone at 1-800-321-1907 or by e-mail at confidential@atg.state.in.us

Posted by Marcia Oddi on October 30, 2009 12:00 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 9 today (and 21 NFP)

It is the end of the month and the COA has released a slew of opinions today - 30 in all. The first one is the blackjack card counting case, where the COA rules: "Donovan is entitled to summary judgment on his request for a declaratory judgment to the effect that Grand Victoria may not exclude him from blackjack because he counts cards." More later

For publication opinions today (9):

Thomas P. Donovan v. Grand Victoria Casinio & Resort, L.P.

Indianapolis City Market Corp. v. MAV, Inc. d/b/a Grecian Garden - In a 22-page opinion, Chief Judge Baker concludes:

In our view, the trial court was able to ascertain, with a relative degree of certainty, the measure of damages from the lost opportunity, i.e., MAV’s inability to operate in the renovated Market House from November 2007 until April 7, 2008. The amount of damages calculated by the trial court was within the scope of the evidence that was presented at trial, and we decline to disturb that award.

See the just posted Indy Star story by Francesca Jarosz, headed "Appeals court says City Market owes $42,000."

In Anne M. Bingley v. Charles B. Bingley , a 14-page opinion, Judge Brown writes:

Anne Bingley appeals the trial court‟s order as to division of assets in the dissolution of her marriage to Charles Bingley. Anne raises a single issue, which we revise and restate as whether the trial court erred in concluding that Charles‟s employer-paid post-retirement health insurance premiums were not a marital asset subject to division. We affirm. * * *

MAY, J., concurs.
CRONE, J., concurs in result with separate opinion. [which begins, at p. 12] I agree with the majority‟s conclusion that Charles‟s employer-paid post-retirement health insurance premiums are not a marital asset subject to division. I write separately, however, because I reach that conclusion by a different route.

T-3 Martinsville, LLC, et al. v. US Holding, LLC, et al. - In a 14-page opinion by Judge Crone, the court grants rehearing and affirms its previous opinion.

Clay Howard v. Debra Daugherty and L.A. Vanatta - In a 4-page opinion, Judge May writes:

Clay Howard brought a Section 1983 complaint. The trial court dismissed his complaint for failure to pay filing fees. We affirm.

Howard, an inmate at the New Castle Correctional Facility, filed a complaint and was ordered to pay a partial filing fee of twenty-two cents. He submitted a forty-two cent stamp as payment but the trial court dismissed his complaint for failure to timely pay the filing fee.

Max Koenig v. State of Indiana

Roger L. Brown v. State of Indiana

Terrence Miller v. State of Indiana

Terry Rowe, Jr. v. State of Indiana

NFP civil opinions today (9):

Donald T. Haygood and Debbie Osman v. Safe Auto Insurance Co. (NFP)

Gideon Samid v. Virginia Spencer (NFP)

Lisa J. Lutterbach v. Michael R. Lutterbach (NFP)

Shirley Williams v. Robert Williams (NFP)

Bradley K. Buchanan, et al. v. Consolidated Brokers Corp. LLC (NFP)

Tincey J. Wright v. City of Richmond, et al. (NFP)

Marriage of L.S.G. v. R.A.B., Jr. (NFP)

Term. of the Parent-Child Rel. of: H.P., and A.H. v. Ind. Dept. of Child Svcs. (NFP)

Term. of Parent-Child Rel. of A.O.; J.P. v. IDCS (NFP)

NFP criminal opinions today (12):

Van Johnson v. State of Indiana (NFP)

Richard Welch v. State of Indiana (NFP)

Jose Aguilar v. State of Indiana (NFP)

Damon Lewis v. State of Indiana (NFP)

Jermaine Foster v. State of Indiana (NFP)

L.F. v. State of Indiana (NFP)

Kevin A. Nasser v. State of Indiana (NFP)

Frank D. Greene v. State of Indiana (NFP)

Dana R. Zirkel v. State of Indiana (NFP)

George Mansfield v. State of Indiana (NFP)

Timothy Alvey-Williams v. State of Indiana (NFP)

Eric V. Graves v. State of Indiana (NFP)

Posted by Marcia Oddi on October 30, 2009 10:32 AM
Posted to Ind. App.Ct. Decisions

Environment - Don't forget to order the 2009 Edition of the Indiana Environmental Statutes

The 2009 edition of the Indiana Environmental Statutes, edited by Marcia J. Oddi, is now available.

The 2009 edition of the annual publication, the Indiana Environmental Statutes, is sponsored by the Environmental Law Section of the Indiana State Bar Association. It is a convenient desktop resource including Title 13 of the Indiana Code, plus the administrative orders and procedures act (AOPA) and numerous other related Indiana statutes. 604 pp.

The price is $30.00. The book can be ordered online, in singles or in quantity, directly from the printer -- you may see the "preview" and place your orders here.

Posted by Marcia Oddi on October 30, 2009 09:51 AM
Posted to Environment

Courts - "Kansas Supreme Court hears arguments about caps on damages awarded to patient"

That is the headline to this story yesterday in the Kansas Lawrence Journal World. The subhead is "Case against Lawrence physician attracting great deal of attention." Scott Rothschild reports:

Topeka — Attorneys for a Eudora woman whose doctor removed the wrong ovary said Thursday that a $250,000 cap for damages was unconstitutional.

“It’s a fundamental affront to the court and separation of powers,” said Ned Miltenberg in arguments before the Kansas Supreme Court.

But Bruce Keplinger, an attorney for Dr. Carolyn Johnson, said the Legislature was within its rights to cap damages as a way to help keep insurance companies and doctors in the state.

The cap, Keplinger said, “is vital to the viability of this state. If it goes away, you will be creating the insurance crisis of 2010.”

The state Supreme Court took the case under advisement, and didn’t indicate when it would decide the matter.

The dispute focuses on the case of Amy Miller, who in 2002 went in for surgery for removal of her right ovary. Johnson, of Lawrence, removed her left ovary by mistake.

Miller sued for malpractice and a Douglas County jury awarded her $759,680, which included funds for pain and suffering and future medical expenses.

But the award was knocked down by then-District Court Judge Steve Six — now the state’s attorney general — to comply with the $250,000 cap approved by the Legislature 20 years ago.

The case has drawn the attention of doctors, insurance companies and businesses that support the cap, while unions and plaintiffs’ attorneys want to see the cap shot down.

Miltenberg argued that establishment of such a cap violates a person’s constitutional right to trial by jury, and infringes on the constitutional authority of the judiciary.

But Keplinger said the cap was put in place to promote a public good -- keeping health care and insurance available -- and didn’t infringe on constitutional rights.

Recall this ILB entry from Sept. 6th, headed "Indiana malpractice cap may be challenged."

Posted by Marcia Oddi on October 30, 2009 09:34 AM
Posted to Courts in general

Courts - "Judges In Pa. Corruption Case Likely to Evade Civil Charges" Indiana case mentioned

Remember the stories about the two Pennsylvania judges who "sent thousands of juveniles to detention centers in return for kickbacks"? Here are several new stories posted yesterday.

• This long story from Terrie Morgan-Besecker of the Wilkes-Barrie Times Leader begins:

  Who should be held responsible for the actions of two former county judges that allegedly led to the wholesale deprivation of constitutional rights of juveniles in Luzerne County Court?

  Not the judges, the former jurists argue in court papers. The doctrine of judicial immunity shields them from any liability in the case, no matter how egregious their alleged conduct.

  Not the county commissioners, attorneys for the county argue. They were powerless to control the actions of the judges, Mark Ciavarella and Michael Conahan, and therefore are not responsible for any harm to the juveniles.

  And not Dr. Frank Vita, the psychologist who provided evaluations used to determine a child’s placement, his attorney argued. He was merely acting upon a court order, thus he, too, is judicially immune.

  That was the crux of legal arguments presented Wednesday during a nearly four-hour hearing before U.S. District Judge A. Richard Caputo.

• Ashby Jones has this entry in the WSJ Law Blog. Take a look at this quote, which cites an infamous Indiana case:

  We checked in with Pitt law professor and expert on the judiciary Arthur Hellman to talk about this strange notion of judicial immunity.

  Hellman indeed backed the notion that the plaintiffs might end up high and dry. He said that while the immunity isn’t absolute, it extends to actions taken while judges were engaged in a judicial function.

  Hellman explained that the Supreme Court in 1971 upheld the notion of judicial immunity in a case in which an Indiana judge ordered the forced sterilization of a woman, a naked breach of state law. Because the judge was acting under his stautorily granted jurisdiction, he was covered by the immunity. The rule does not, Hellman continued, apply to judges working in official but non-judicial capacities. For example, a judge would not be immune from suit if he or she fired an employee for discriminatory reasons.

  “These rogue judges, they were doing things the statute authorized them to do — to sentence juvenile offenders,” says Hellman. “That they did it for terrible reasons, indeed a corrupt motive, I doubt will overcome the presumption of immunity.”

  Hellman says that, in occasional instances, the theory causes outcomes that “look terrible.” He says that “it very likely means there will be no recompense.”

• This story by Leo Strupczewski of The Legal Intelligencer is headed "Pa. Justices Expunge 'Tainted' Juvenile Cases: Decision is effectively wholesale adoption of court-appointed special master's recommendation."

[More] You ask, what was the Indiana case that led to the leading precedent on judicial immunity? It was Stump v. Sparkman. Here is the SCOTUS 1978 opinion. For more, see this ILB entry from March 28, 2007.

Posted by Marcia Oddi on October 30, 2009 09:09 AM
Posted to Courts in general

Ind. Courts - "Courts Use Collaboration Model To Try And Dial Down Emotions In Divorce Cases"

Fort Wayne WPTA-TV has this story by Jeff Neumeyer:

FORT WAYNE, IN (Indiana's NewsCenter) --- The shooting death of Amy Meyer White in Wells County on Tuesday illustrates how divorce cases can turn explosive, and why diffusing runaway emotions is critical to heading off violence.

Police say the 28-year old woman was shot and killed by her estranged husband Tyler White as the two were exchanging custody of their toddler.

Conflict often spills over into the court system, where combative lawyers fight over a host of unresolved matters.

The concept of "collaborative divorce" is an attempt to pursue a different strategy, one that emphasizes respect and reason over anger and resentment.

In Allen County, thirty lawyers and mental health professionals take part in a program that aims to steer willing couples to use an objective third party mediator to help settle contentious issues.

Magistrate Thomas Boyer/Allen Superior Court: " Basically, a model that goes away from the traditional concept, okay, divorce has been filed, let's race to the courthouse, let's have a hearing, let's see who's going to be the winner and who's going to be the loser, cause what reality shows us is, in these situations, nobody wins."

Collaborative divorce, of course, doesn't eliminate the need for couples to work out a host of other disputes.

Magistrate Boyer says it can be a good idea to arrange child exchanges at neutral locations, rather than at the home of either spouse.

He also discourages heavy reliance on email communication back and forth.

It’s true that can take the place of tension filled face-to-face or phone encounters.

But Boyer says ideally couples need to learn to work out their differences, and that direct contact fosters better long-term solutions.

Posted by Marcia Oddi on October 30, 2009 09:05 AM
Posted to Indiana Courts

Thursday, October 29, 2009

Courts - Arizona Supreme Court holds that embedded metadata in an electronic public record is subject to disclosure

The case is David Lake v. City of Phoenix. The opinion of the Arizona Supreme Court begins:

Arizona law provides that “[p]ublic records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.” Ariz. Rev. Stat. (“A.R.S.”) § 39-121 (2001). The City of Phoenix denied a public records request for metadata in the electronic version of a public record. We today hold that if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws.

How did the issue arise? From the opinion:

David Lake, a Phoenix police officer, filed an administrative complaint and federal lawsuit alleging employment discrimination by the City of Phoenix. He also submitted a public records request to the City, seeking notes kept by his supervisor, Lt. Robert Conrad, documenting Lake’s work
performance. After reviewing paper copies of Conrad’s notes, Lake suspected that they had been backdated when prepared on a computer. Lake then requested “‘meta data’ or specific file information contained inside . . . [Conrad’s notes] file,” including “the TRUE creation date, the access date, the access dates for each time it was accessed, including who accessed the file as well as print dates etc.”1 The City denied the request, contending that metadata is not a public record under Mathews v. Pyle, 75 Ariz. 76, 251 P.2d 893 (1952).

Here is the just-issued statement of the Reporters Committee for Freedom of the Press. Some quotes:

The Arizona Supreme Court today ruled that metadata – information about the history, tracking and management of an electronic document – is subject to the state’s public records law.

Several national media organizations supported Phoenix police officer David Lake’s challenge that the city improperly denied his 2006 public records request for the metadata about documents he had previously requested and received. The city refused Lake’s request, arguing the metadata did not fall within the state’s definition of public records, which a court established in 1952, long before the advent of electronic documents.

In a unanimous opinion released today, the state’s high court held, “If a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure.”

David J. Bodney, a lawyer who helped write a friend-of-the-court brief on behalf of The Associated Press, Gannett Co., The E.W. Scripps Company, and The Reporters Committee for Freedom of the Press, said the state Supreme Court decision is a victory for public access.

“The decision is important because we live in an electronic age where maintenance and preservation of public records in electronic format is quickly becoming the norm,” Bodney said. “Public bodies should not be permitted to withhold that information from public inspection.” * * *

Bodney said the state Supreme Court’s decision may be the first one of its kind for a state high court.

The Arizona decision could be persuasive in other states, including Washington, where the Supreme Court has agreed to hear a metadata case this term. The City of Shoreline is appealing a 2008 a Washington appeals court's decision that metadata is a public record in O’Neill v. Shoreline.

This site provides links to some of the briefs in the case.

An Indiana experience: I ran in to the issue of a state agency using the possibility of the existence of metadata as a reason to resist providing digital copies of public documents in March of 2007. Unfortunately, the public access counselor at the time found in favor of the agency, in a somewhat confusing opinion. (My interest at the time was not in any potential metadata, but in accessing digital copies of Word documents, rather than paper copies, because thousands of pages were involved.) Here are come quotes from my request for IDEM records:

Late last fall, when the [IDEM online] Enforcement Database had not been updated since April of 2006. I filed a request with the OE for digital copies of all the outstanding NOVs and AOs. (Note: When finalized, a digital copy of every NOV and AO is filed with the OE administrative assistant in change of keeping the Enforcement Database updated. These documents are in MS Word format.)

I was told filling my request was not possible, that these documents might contain "deliberate, privileged and confidential material" and also might contain metadata. I was offered the opportunity to obtain paper copies of the approximately 800 multipage documents. * * *

However, when I requested the January 2007 digital documents earlier this year, I was again put off and when, last week, I requested what were now both the January and February documents, I was notified:

The January 2007 enforcement records are available on the IDEM webpage at http://www.in.gov/serv/idem_oe_order. Hard copies of those records are also available in the IDEM Central File Room on the 12th floor of the Indiana Government Center North, 100 N. Senate Ave, Indianapolis, IN.

I believe this is a denial to the public right of access under IC 5-14-3-3(d), which provides that "a public agency shall make reasonable efforts to provide to a person making a request a copy of all disclosable data contained in the records on paper, disk, etc... if the medium requested is compatible with the agency's data storage system."

In short, the option given to me by IDEM, and the one with which the PAC agreed, was that I could either purchase the hundreds of pages of paper printouts, or search for and retrieve the documents one-by-one from the IDEM webpage, where the original MS Words documents have been mechanically converted into primitive html (an example). My requests for e-mail attachments and my offers to provide CDs were denied.

The situation has not improved in the intervening years. The documents are still posted for the public about six weeks late, are still in barely readable html, and users still are forced to search for them and download them one-by-one.

[More] Robert Anglen of the Arizona Republic writes:

For years, the City of Phoenix has routinely refused to release public records in electronic form.

If you wanted a record, you had to pay for a copy on paper. If you wanted thousands of pages of public records, you had to pay for a copy of each page.

It didn't matter if the city kept the records in electronic format or if you offered to provide a CD or requested an e-mail attachment. The city said no. The official line: the law only says we have to give it to you, it doesn't say how we have to give it to you.

And the example set by Phoenix was followed by other cities and government agencies across the state that refused to release electronic records.

No longer. On Thursday morning the Arizona Supreme Court ruled that electronic records maintained by public agencies are subject to disclosure under the law.

The court took it a step farther and ruled that metadata contained in computer files is also a public record. Metadata is the coding contained in a file that shows, among other things, when and how a document was created.

"We accordingly hold that when a public entity maintains a public record in an electronic format, the electronic version of the record, including any embedded metadata, is subject to disclosure under our public records law," the court said. "Our decision is unlikely to result in the administrative nightmare that the city envisions."

This makes Arizona only the second state in the country where a court has ruled that electronic records are subject to disclosure.

And there is nothing esoteric about the decision. It affects everybody who has ever attempted to access records.

Want an example?

The Arizona Republic recently requested the applications of a particular set of license holders in Phoenix. There are hundreds of records and there is no question that the applications are public records. The city kept a database of these records but refused to take a few minutes and copy the information onto a blank CD.

Instead, the city said reporters would have to pay for each page of the records...and a staff person would have to photocopy each page by hand.

Posted by Marcia Oddi on October 29, 2009 06:18 PM
Posted to Courts in general

Courts - More problems with elected justices and campaign money [Updated]

SCOTUSBlog's Thursday roundup puts it succinctly:

The Wisconsin Supreme Court, by a vote of four to three, adopted rules allowing judges to hear cases involving their campaign contributors. The rules were added to the judicial code of conduct and were proposed by two powerful Wisconsin business groups. Wisconsin is one of the first states to consider recusal rules in light of the Court’s decision in Caperton v. A.T. Massey Coal Co.

Patrick Marley of the Milwaukee Journal Sentinel reports today in a long story that begins:

Madison — A deeply divided state Supreme Court adopted a rule Wednesday that says endorsements, campaign contributions and independently run ads in themselves are not enough to force a judge off of a case.

The court adopted the proposal on a 4-3 vote, with those in the majority saying the rule was essential to clarifying policies at a time when justices increasingly face charges of bias. The dissenters said the court was only further clouding the issue.

"It will send a message that making lawful contributions is not a dishonorable thing to do and it's not a dishonorable thing to receive," said Justice Patience Roggensack.

Countered Justice N. Patrick Crooks: "I think what it's going to do is add to the perceptions (of bias) that are apparently out there rather than put them to rest."

Voting for the rule change were Roggensack and Justices David Prosser, Annette K. Ziegler and Michael Gableman. Joining Crooks in his dissent were Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley.

The new rule was written by the Wisconsin Realtors Association and business lobbying group Wisconsin Manufacturers & Commerce. The justices rejected competing proposals from the League of Women Voters of Wisconsin and former Justice Bill Bablitch, who wanted to require judges to step aside if a lawyer or party to a case gave them more than a certain amount.

The state's longstanding ethical code for judges says they must recuse themselves if their impartiality can reasonably be questioned. The new rule amends that to say campaign spending and endorsements alone aren't enough to require them to step aside.

[Updated 10/31/09] See this story by Zach Lowe of The American Lawyer headed "Wisconsin Becomes First State to Set 'Caperton' Standard."

Posted by Marcia Oddi on October 29, 2009 04:49 PM
Posted to Courts in general

Ind. Courts - "Arguments completed in E.C. casino money lawsuit " [Updated]

So reports Dan Carden of the NWI Times in a story posted this afternoon. Some quotes:

INDIANAPOLIS | Oral arguments at the Indiana Supreme Court have concluded in a battle over who gets to control East Chicago casino money earmarked for local development.

Foundations of East Chicago is challenging a 2007 state law giving the City of East Chicago the power to decide how to distribute the development money.

Attorney Peter Rusthoven argued forcefully that Foundations of East Chicago, an independent nonprofit agency, should continue to receive the casino funds.

Rusthoven claimed the legislature went too far by writing a state law that only applies to East Chicago. The state constitution requires laws to apply to everyone.

Solicitor General Thomas Fisher, representing the state and supporting the city in the case, didn't deny the General Assembly wrote special legislation.

But Fisher said the East Chicago situation -- giving casino money to several private foundations and the city's accompanying record of official corruption -- was so unique the legislation was appropriate.

Justice Frank Sullivan Jr. seemed doubtful of that claim and challenged Fisher several times to explain how special legislation is ever justified.

The city's attorney, William Bock III, took a different tack and argued Foundations of East Chicago isn't entitled to the money, because it's not named specifically in the 1995 agreement between the city and the casino operator.

Foundations of East Chicago was created in 2007 through the merger of two nonprofit foundations named in the local development agreement.

In April, the Indiana Court of Appeals ruled the law giving East Chicago the power to redirect casino money is constitutional. The appeals court claimed the city is entitled to control the distribution of the money even without the law.

A decision from the Indiana Supreme Court is expected early next year.

The oral arguments lasted 45 minutes before the five justices in the ornate Supreme Court chamber on the third floor of the Statehouse.

A brief story from the Gary Post-Tribune staff reports:

The state Supreme Court this morning in Indianapolis heard oral arguments in the continuing legal battle between the East Chicago administration of Mayor George Pabey and a for-profit foundation that has received millions in city casino revenues for more than a decade.

Attorneys for the foundation argued it was unconstitutional for the City Council to end a deal with the Foundations of East Chicago that has steered more than $43 million to the group under an agreement with the city reached 12 years ago under former mayor Robert Pastrick.

The city has maintained that little money has made it back into the community in the form of economic development, while board members appointed by Pastrick have soaked up much of the money with administrative costs.

State law adopted in 2007 seemed to give the council that authority, but foundations attorney Peter J. Rusthoven said the law was unconstitutional special legislation targeting his clients.

"If this is not special legislation, I do not know what is," he said. "There is no evidence offered (of any misuse of funds). There are newspaper articles."

The case is the third time issues related to the foundations have reached the high court in five years, as Pabey has tried to wrest control of the additional casino millions from foundations controlled by Pastrick appointees.

Some quotes from a press release from the Indiana Attorney General's office:

In a case before the Indiana Supreme Court today, the Indiana Attorney General’s Office argued the General Assembly can allow city of East Chicago to decide for itself how to direct millions of dollars in casino revenue – so that the city is not locked into a deal brokered by a former mayor investigated for racketeering.

At issue is whether the new city leadership in East Chicago could, by law, cancel an agreement engineered by former Mayor Robert Pastrick in 1995 that steered millions of dollars in casino revenue into two nonprofit foundations led by Pastrick allies.

The State of Indiana – through Attorney General Greg Zoeller – contends the current city leadership had the legal ability to cancel the Pastrick-era deal with the two foundations in 2007, so that the annual payment from the former Showboat casino (now Ameristar) would be redirected to city management.

The two nonprofits, which have now merged into an entity known as Foundations of East Chicago Inc., each received a one percent cut of casino revenue annually to spend on local development projects. The two foundations received a combined $43.5 million in casino revenue over 10 years.

The Indiana General Assembly passed a law in 2007 giving the new leadership in East Chicago the authority to cancel Pastrick’s 1995 local development agreement with Foundations. Contending the state law was unconstitutional, Foundations sued the city to undo the cancellation and restore the annual payments. The Attorney General’s office joined the case as an intervenor-defendant supporting the city’s argument. The trial court sided with the state and city, as did the Indiana Court of Appeals.

Foundations appealed and today the Indiana Supreme Court heard arguments in the case.

The ILB has had a number of entries on the case, Foundations of East Chicago v. City of East Chicago and the Attorney General of Indiana, including this one from Oct. 26th with all the filings in the appeal.

[Updated early on 10/30/09] Here is a statement the ILB has just received from the Foundations of East Chicago:

Foundations of East Chicago Press Release

October 29, 2009

The Foundations of East Chicago, Inc. are pleased that the Indiana Supreme Court is addressing the legal issues related to the passage of a statute that would remove the City of East Chicago development agreements from the regulatory authority under which they were approved, and instead periodically subject them to the whims of the East Chicago political process with no oversight or regulation. When gaming arrived in East Chicago, the citizens were clear that a condition was that some money was to be spent in the community in a manner insulated from the political issues of the day in order to provide long-term and consistent benefits to the citizens of East Chicago. Every entity that has reviewed the Foundations, including its governmental regulators, has determined they have acted in a manner consistent with these original expectations. The irony is not lost on the Foundations that the entity that seeks this money (the City) defends this statute on the basis that the City used to be corrupt. Yet, if the City has its way, should the " corruption" the City asserts return, that same "corrupt" City will have these additional funds at its disposal.

Among those supporting the Foundations are churches, an alliance of ministers, and numerous other individuals who both lack the political motivation to attack the Foundations and independently recognize the valuable community services they provide. For them and the citizens of East Chicago, the Foundations are hopeful that the Court will address and affirm the constitutional safeguards and regulatory framework as it exists, thereby allowing the Foundations to continue their work both now and in the future.

Posted by Marcia Oddi on October 29, 2009 04:23 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

For publication opinions today (3):

In Crystal Reeves v. Sharon Downin, a 9-page opinion, Judge Kirsch writes:

Tenant Crystal Reeves filed suit against her landlord, Sharon Downin, seeking recovery of her security deposit, and Downin filed a counterclaim for damages to the apartment. Following the trial court‟s denial of her motion to correct error, Reeves appeals and raises two issues that we consolidate and restate as: whether the trial court abused its discretion when it rendered a judgment in favor of Downin on her counterclaim for damages to the apartment, even though Downin failed to provide Reeves with an itemization of damages and written notice of her intent to retain the security deposit. We reverse and remand.

In Marijeanne Brown-Day v. Allstate Ins. Co. , a 9-page opinion, Judge Bailey writes:

Marijeanne Brown-Day (“Brown-Day”) sued her insurer, Allstate Insurance Company (“Allstate”), for underinsured motorist benefits. We have accepted this interlocutory appeal to review pretrial orders granting a motion for party substitution and a motion in limine, which collectively prohibited any explicit reference to Allstate. We reverse and remand. * * *

Allstate is the sole defendant in this case, and neither Evidence Rule 411 nor the common law permits the substitution of a non-party so as to conceal Allstate’s identity as an insurer. Additionally, pursuant to Evidence Rule 616, evidence of bias, prejudice, or interest of a witness for or against a party is admissible, and the rule may not be disregarded on grounds that the party involved is an insurance carrier.

In A.K. v. State of Indiana , a 5-page opinion, Sr. Judge Hoffman writes:

A.K. raises one issue for our review, which we restate as: Whether the juvenile court erred in denying A.K.’s motion to dismiss, which was based on Ind. Code § 31-37-11-2(b). * * *

A.K.’s objection and motion were precipitated by Ind. Code § 31-37-11-2(b), which provides that when a child is not in detention and a petition has been filed, “the hearing must be commenced not later than sixty (60) days, excluding Saturdays, Sundays, and legal holidays, after the petition is filed.” A.K.’s motion asked for dismissal of the charges against him because the fact-finding hearing was not set within the sixty-day period following the February 1, 2008 filing of the petition listing the allegations against him.

We first observe that the juvenile code does not mandate dismissal of the charges when the sixty-day deadline is not met. Indeed, our supreme court has noted that failure to meet the twenty-day deadline for a juvenile in detention found in Ind. Code § 31-37-11-2(a) results in neither dismissal of the charges nor in loss of jurisdiction by the juvenile court, as there is nothing in the statute that can be interpreted to mandate such results. * * *

Finally, we observe that the setting of the May 12, 2008 hearing was made with A.K.’s agreement. He did not object to the setting of the fact-finding hearing outside the sixty-day period set forth in Ind. Code § 31-37-11-2(b). In the adult criminal setting, governed by Indiana Rule of Criminal Procedure 4(C), speedy trial rights are deemed waived when the time period provided by the rule has not expired, a trial date has been set for a date beyond that period, and no objection has been made. * * * Given the silence of the juvenile code and the paucity of law pertaining to the code, we hold that an analogy to the adult criminal setting is appropriate. The objective of Ind. Code § 31-37-11-2(b) is to facilitate an orderly and timely process; the section’s deadline is not a mechanism for dismissal when the court has accommodated the juvenile and a timely objection has not been made. Affirmed.

NFP civil opinions today (1):

Term. of Parent-Child Rel. of G.R. and E.E.; J.R. v. IDCS (NFP)

NFP criminal opinions today (14):

Leon Moore v. State of Indiana (NFP)

Richard S. Meadows v. State of Indiana (NFP)

Jeffery D. Pennycuff v. State of Indiana (NFP)

Dallas S. Brown v. State of Indiana (NFP)

Tromaine Langham v. State of Indiana (NFP)

Carleton Holt v. State of Indiana (NFP)

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

Erick Damone Peters v. State of Indiana (NFP)

Michael G. Graves v. State of Indiana (NFP)

Ricardo Austin v. State of Indiana (NFP)

Leo L. Valle v. State of Indiana (NFP)

Wiley Bell v. State of Indiana (NFP)

Rodney Word v. State of Indiana (NFP)

Perry Jerome Towne v. State of Indiana (NFP)

Posted by Marcia Oddi on October 29, 2009 12:18 PM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Judge pushes Indiana on welfare debate: Action comes just days after governor fired vendor from $1.34 billion contract."

Here is a long story from the AP's Ken Kusmer that begins:

INDIANAPOLIS — A federal judge has ordered Indiana's partially privatized welfare intake system to speed up decisions on food stamp applications, but the state has a year to meet its first target.

U.S. District Judge Robert Miller issued a preliminary injunction last week in a class-action lawsuit covering every food stamp applicant in Indiana over the past 19 months. The order represents the latest setback to one of nation's most ambitious welfare privatization efforts and came just days after Gov. Mitch Daniels fired vendor IBM Corp. from its $1.34 billion contract to lead the project.

The early problems met by IBM and its partners led LaPorte attorney Shaw Friedman to sue on behalf of eight welfare recipients in state court last year, and the state got the case moved to federal court. The IBM team's tardiness in approving or denying applications became so big an issue that federal food stamp officials in June 2008 asked the state for a formal plan to correct the problem.

Posted by Marcia Oddi on October 29, 2009 11:22 AM
Posted to Ind Fed D.Ct. Decisions | Indiana Government

Ind. Law - "Cleaning up after meth"

A Fort Wayne Journal Gazette editorial from Oct. 28, referencing its story from Oct. 24th:

Sometimes the best intentions fall short. That’s the case with Indiana’s law governing the cleanup of illegal-drug labs. The law’s reporting requirements don’t go far enough in mandating not only the cleanup of the toxic remains of a methamphetamine lab but also the protection of prospective homebuyers.

Julie McCoy Sabatino’s case illustrates the law’s inadequacies. As The Journal Gazette’s Angela Mapes Turner reported in her story Saturday, the real estate disclosure form for Sabatino’s Churubusco home included a handwritten note acknowledging “there may have been meth on property,” but Sabatino’s financial resources and desperate need for a place to live with her 10-year-old son outweighed any concerns she might have had.

As soon as they moved in, both began to have respiratory problems. Her son’s asthma symptoms worsened. Sabatino did some research and found the previous owner’s tenants had been arrested in connection with producing meth. The landlord’s efforts to wash away the contamination were clearly not enough.

To comply with the state’s 2005 meth lab law, the Indiana Department of Environmental Management developed rules that set standards for cleanup and inspection of sites used to make illegal drugs.

The guidelines require an inspector to certify decontamination levels for various chemical substances or removal of the property contents in place of decontamination.

The latter course requires removing virtually everything – all the furnishings and personal items, plaster and wallboard, paneling, cabinets, appliances, shelves, doors, baseboards and floor coverings down to the subfloor, which must be sealed.

Indiana’s cleanup law, like that in most other states, places responsibility with the property owner, who in ridding a property of contaminants can face costs of as much as $150,000.

Of about 20 states with meth lab laws, only Colorado makes federal grant money available to innocent property owners facing cleanup costs. Minnesota has a revolving cleanup loan fund.

Sabatino, who had to move out of her house and has now lost it to foreclosure, could have used such assistance. There are others, including low-income elderly people whose homes are used without their knowledge, who also would benefit.

The meth lab reporting requirements Indiana passed can do only so much in protecting residents. Homes contaminated before the law went into effect are left out. And tight budgets limit the ability of county departments of health to maintain electronic records of drug lab properties. With Indiana home foreclosures increasing, the information about properties becomes even more difficult to track, and the likelihood increases that an unsuspecting family will find itself in a former meth-lab home.

Lawmakers should find a way to protect homebuyers like Sabatino. Resources to pay for decontaminating homes would be a good start.

The ILB has a very long list of earlier entries involving methamphetamine. Many of them concern meth cleanup and who should bear the cost. See particularly this comprehensive entry from July 14, 2009.

Posted by Marcia Oddi on October 29, 2009 10:53 AM
Posted to Indiana Law

Ind. Courts - More on: "Trial about St. Joseph County judge's mandate order ends" [Updated]

Updating this ILB entry from Sept. 25th, Erin Blasko reports in the South Bend Tribune in a story headlined: "Special judge rules in favor of Nemeth: St. Joseph County ordered to release funds for raises, physical improvements at Juvenile Justice Center":

SOUTH BEND – A judge has ruled in favor of Probate Judge Peter Nemeth in a dispute between him and St. Joseph County officials over funding for the Juvenile Justice Center.

In his order and judgment, William Satterlee, a Valparaiso attorney appointed special judge in the case, ruled funding requested by Nemeth in 2008 to pay raises and make physical improvements at the Juvenile Justice Center was not only necessary for the operation of the court and court-related functions, but did not represent a financial burden to the county.

Nemeth issued a judicial mandate in February of 2009 directing the St. Joseph County Council and Board of Commissioners to appropriate the funds, totaling about $355,000.

The appropriation was approved by both the council and commission in late 2008, but commissioners never signed the requisition form.

Satterlee's ruling requires the funds now be released.

The county can appeal the decision.

[Updated at 11:19 AM] Here is an updated story from the Tribune.

Posted by Marcia Oddi on October 29, 2009 09:45 AM
Posted to Indiana Courts

Ind. Gov't. - "Jeff steel plant fined $240,000 for violations found after worker died"

Harold J. Adams reports in the Louisville Courier Journal in a story that begins:

Steel Dynamics, the Jeffersonville steel processing plant, was fined $240,000 Wednesday by the Indiana Department of Labor for safety violations found in an inspection after a worker died at the facility in August.

Shay Fanase Jr., 21, was overcome by nitrogen while working in a confined space in the plant on Aug. 5 and died three days later at University Hospital in Louisville.

Chuck Carter, deputy labor commissioner in charge of the Indiana Occupational Safety and Health Administration, said Fanase’s death was caused by “a terrible design” that required the worker to open a furnace and put his head into it in order to pull parts through.

Carter said it’s a “very, very dangerous prospect when you open this door.”

“This is so high a level of nitrogen that putting your head in there and taking a good breath, you can say goodbye to consciousness immediately,” he said. “You are talking about levels of inert gases that can be nearly immediately fatal to a human being.”

“If they were in compliance with these rules beforehand they would not have had someone in that situation breathing those gases at that level and then you’re rolling the dice on whether you’re dead or you just end up in the hospital.”

Steel Dynamics spokesman Fred Warner said the company would not comment because it had not seen the IOSHA report. “We’ll review the findings when we get them … and if necessary further discuss with Indiana OSHA,” he said in a telephone message.

Posted by Marcia Oddi on October 29, 2009 09:33 AM
Posted to Indiana Government

Ind. Courts - More on: "Indiana Supreme Court Suspends Judge Accused of Theft"

Updating this ILB entry from Oct. 14th that reported that Knox County Bicknell City Court Judge David Andrew Moreland had been suspended, effective immediately, and included this quote from the Evansville C&P:

BICKNELL, Ind. — A Knox County judge and his wife were arrested this morning on accusations they stole thousands of dollars worth of traffic ticket fines from the court's account.

Bicknell City Judge Andrew Moreland, 45, and his wife, Cindy Moreland, 38, turned themselves in at the Knox County Jail and were then released on bond, Indiana State Police said. They are each facing five counts of theft, a class D felony.

Mike Grant of WTHI TV 10, Terre Haute, reported last evening:

BICKNELL, Ind. (WTHI) - A small southern Indiana community has learned the cost of returning order to its city court.

The Bicknell City Court has been closed for two weeks.

The State Supreme Court shut down the operation when City Judge Andrew Moreland and his wife, Cindy, were accused of five counts each of theft for allegedly taking $20,000 from court funds.

City officials said the closed court is an inconvenience to local residents and money from fines and court costs are no longer staying in town.

"We need our court back as soon as possible. That's the way I feel," Bicknell Mayor Jon Flickinger said. "It's putting the hammer on us because the local people now have to go to their courts in Vincennes down there."

The court operation will be more costly when a new judge is seated.

The city will have to pay both the suspended Judge Moreland and his replacement's salary.

Posted by Marcia Oddi on October 29, 2009 09:26 AM
Posted to Indiana Courts

Ind. Law - Flagrant Age Discrimination at IU-Indy School of Law?

The blog Concurring Opinions had this post yesterday from IU-Indy law prof Gerard Magliocca:

I am not in the habit of criticizing my employer, but here goes. Indiana University has a policy holding that the deans of individual schools on campus must retire at 65. In the past, this policy was rarely enforced, but the current President — Michael McRobbie — has decided to enforce the policy strictly. This mindless age discrimination now threatens to force out my dean (who is doing a fine job) despite assurances given when he was hired three years ago that he would not be subject to this age limit.

I think that a serious inquiry should be undertaken to determine whether President McRobbie and IU are in violation of the ADEA. Even if that is not the case, I think the President’s behavior is shameful and sends a clear message to campus that senior faculty are not welcome.

Gary R. Roberts is the Dean and Gerald L. Bepko Professor of Law at Indiana University School of Law - Indianapolis. Here is the ILB entry from Jan. 20, 2007 announcing his appointment. The story includes:

Roberts, 58, will be paid $259,000 a year when he replaces interim Dean Susanah M. Mead on July 1.

That means Roberts has been dean a little over 2 years and will be 61 soon, if not already.

Roberts sent an e-mail to the law school faculty late yesterday, letting them know he was being interviewed for the Deanship at Denver. A quote:

When I interviewed here and accepted this dean’s job, I believed and expected that I would finish my career here by being dean for at least 10 years, a period I believed, and still believe, to be essential for accomplishing the strategic and resource development goals that this school must meet.

What does this portend for IU Law's future? One prof writes:

It could make it difficult for us to hire someone in the future. The person cannot not much over 50 if they want to be a Dean for awhile.

Posted by Marcia Oddi on October 29, 2009 09:20 AM
Posted to Indiana Law

Environment - Former IDEM Air Chief goes to Washington

Janet McCabe, the highly-regarded, long-time head of IDEM's Air Office until the politics changed with Gov. Daniels' election, has accepted the position of chief deputy to the head of U.S. EPA's Air Office. McCabe, a Harvard Law graduate, will have the official title of Principal Deputy to the Assistant Administrator for Air and Radiation. Here is the AP story.

Posted by Marcia Oddi on October 29, 2009 08:55 AM
Posted to Environment

Wednesday, October 28, 2009

Ind. decisions - "$29M deal reached in IMI price-fixing lawsuit: IMI settlement is the biggest yet in concrete scheme"

Jeff Swiatek of the Indianapolis Star reports today that:

Plaintiffs in a concrete price-fixing lawsuit in Central Indiana have landed their largest settlement yet.

Irving Materials, a Greenfield-based construction materials supplier, has agreed to pay $29 million to settle charges that it conspired with six other concrete firms to overcharge customers. IMI was the largest firm among the original defendants and had the biggest market share.

The settlement allows IMI to avoid a class-action trial set for next summer. Two companies are now left as defendants. Three others have settled for a combined $24 million.

IMI's settlement must be approved by a federal judge before it's official. It would boost the amount of settlement money paid by the companies in the case to $53 million.

"This is an historic settlement. We could not be more thrilled," Irwin Levin, lead attorney for the plaintiffs, said Tuesday.

The settlement funds, minus legal fees and other costs, will be paid to a court-approved class of about 5,000 individuals and companies that bought $700 million of ready-mixed concrete from the seven companies during the four years of the conspiracy, 2000 to 2004. Of the $24 million in settlements, attorney fees and other costs have eaten up $8 million. The fees and costs for the IMI settlement are not known.

Levin, an attorney for the Indianapolis firm Cohen & Malad, said the settlements so far, counting IMI, amount to "one of the highest percentage recoveries in civil antitrust cases in history." * * *

The companies that have not settled are Builder's Concrete & Supply and Beaver Materials Corp.

Those that settled earlier are American Concrete Co., Shelby Gravel and Southfield Corp. Another defendant, Hughey Inc., went bankrupt.

The U.S. Justice Department pursued criminal charges against the concrete companies after an FBI investigation.

In 2005, the government hit IMI with what was then the largest antitrust fine in U.S. history, $29 million, for its role in the conspiracy that illegally drove up the price of concrete sold in Central Indiana.

The Web site concreteantitrustsettlement.com contains information for plaintiffs and others about the case.

A side-bar to the story sets out a "Timeline of price-fixing scheme."

The ILB has a number of earlier entries on this case, including: Sept. 10, 2009, July 28, 2008, May 20, 2006.

Posted by Marcia Oddi on October 28, 2009 05:56 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Federal Judge orders Ind. to improve food stamp processing"

Ken Kusmer of the AP reports in a long story:

A federal judge has ordered Indiana's partially privatized welfare intake system to speed up decisions on food stamp applications, but the state has a year to meet its first target.

U.S. District Judge Robert Miller issued a preliminary injunction last week in a class-action lawsuit covering every food stamp applicant in Indiana over the past 19 months. The order represents the latest setback to one of nation's most ambitious welfare privatization efforts and came just days Gov. Mitch Daniels fired vendor IBM Corp. from its $1.34 billion contract to lead the project. * * *

Federal law requires all states to approve or deny most food stamp applications within 30 days, but Indiana usually falls short, deciding only 64 percent of cases on time last month. The preliminary injunction requires the state to decide 80 percent of new cases on time within 12 months and 90 percent within 18 months. * * *

Attorneys for the Indiana Family and Social Services Administration and the plaintiffs negotiated the terms of the order over several weeks, and Miller, sitting in South Bend, signed it Oct. 19, four days after Daniels canceled IBM's contract.

Posted by Marcia Oddi on October 28, 2009 05:38 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 2 NFP)

For publication opinions today (4):

In Jeff and Nancy Ream v. Yankee Park Homeowner's Association, Inc. , a 22-page, 2-1 opinion, Judge Bradford writes:

Appellants/Plaintiffs/Counterclaim-Defendants Jeff and Nancy Ream (the “Reams”) appeal the trial court’s order in favor of Appellee/Defendant/Counterclaim-Plaintiff Yankee Park Homeowner’s Association, Inc. (“Yankee Park”) terminating the Reams’ leases for and evicting them from Lots 50 and 68 in Yankee Park. On appeal, the Reams raise three issues, which we restate as follows: I. Whether the trial court erred in finding that Yankee Park demonstrated a legal basis for evicting the Reams from Lots 50 and 68; II. Whether the trial court erred in denying the Reams’ claim for equitable relief to ensure that the Reams could place trailers on their lots as they saw fit; and III. Whether the trial court committed reversible error by denying the Reams’ claim for damages. We affirm. * * *

Having found no clear error in (1) the trial court’s determination that a legal basis existed to terminate and forfeit the Reams’ interest in Lots 50 and 68; (2) the trial court’s findings and conclusions relating to the Reams’ request that the trial court require Yankee Park to provide specific legal descriptions for each of the lots contained within the Park to secure the Reams’ right to place a trailer on each of their remaining lots; and (3) in light of the fact that the Reams committed the first material breach of the lease agreements for Lots 50 and 68, and cannot recover damages resulting from any alleged breach of the leases for lots 50 and 68 by the Board of Directors, we affirm the judgment of the trial court. The judgment of the trial court is affirmed.

BAILEY, J., concurs.
VAIDIK, J., dissents with opinion. [which begins, at p.20] I respectfully dissent. I agree that the Reams materially breached the terms of their lease and are not entitled to damages or equitable relief, but I disagree with the majority that forfeiture is the appropriate remedy in this case.

In Susan (Wood) Runkle v. Max A. Runkle, et al. , a 14-page opinion, Judge Brown concludes:

We conclude that Fifth Third Bank established as a matter of law that Susan (or her attorney) knew or in the exercise of ordinary diligence should have known more than two years before she filed her complaint that Fifth Third Bank had wrongfully issued a second mortgage on the marital residence. In the absence of any designated evidence that Max's Verified Financial Declaration was not promptly served on Susan's attorney in accordance with the Indiana Trial Rules, we conclude as a matter of law that she (or her attorney) knew or should have known prior to June 3, 2003, that she had suffered some sort of injury as a result of Fifth Third Bank's allegedly wrongful actions. See Minnick v. Minnick, 663 N.E.2d 1226, 1229 (Ind. Ct. App. 1996) (noting that “attorneys have a general duty to regularly check the court records and monitor the progress of pending cases”); Patton Elec. Co., Inc. v. Gilbert, 459 N.E.2d 1192, 1194 (Ind. Ct. App. 1984) (“It is the duty of an attorney to regularly check the court records and monitor the progress of pending cases.”).

For the foregoing reasons, we reverse the trial court's grant of Max's motion for summary judgment, and affirm the trial court's grant of Fifth Third Bank's motion for summary judgment, and remand for proceedings consistent with this opinion.

In State of Indiana v. Lindsey D. Schmitt, a 7-page opinion, Judge Mathias writes:

The Warrick Superior Court dismissed criminal misdemeanor charges against Lindsey Schmitt (“Schmitt”) due to the State’s failure to comply with court-ordered discovery. The State appeals and argues that the trial court erred when it dismissed the charges as a sanction for a discovery violation absent a showing of deliberate misconduct or bad faith. Concluding that the trial court did not clearly err when it dismissed the charges as a sanction for the discovery violation, we affirm.

In Cinergy Corp., et al v. St. Paul Surplus Lines Insurance Co., et al, a 22-page opinion in a much-lawyered, "duty to defend" case, Judge Mathias writes:

Cinergy Corporation, Duke Energy Indiana Inc., and Duke Energy Ohio Inc. (collectively “Cinergy”) appeal the Hendricks Superior Court's grant of summary judgment in favor of St. Paul Surplus Lines Insurance Co. (“St. Paul”), Travelers Casualty and Surety Co., and Associated Electric and Gas Insurance Services, Ltd. (“AEGIS”) (collectively “the Insurers”), and the trial court's determination that the Insurers have no obligation to defend, indemnify, or otherwise provide coverage to Cinergy in connection with Cinergy's alleged liability for violations of the Clean Air Act. Cinergy appeals and raises several issues, which we consolidate and restate as: I. Whether the trial court appropriately interpreted our supreme court's decision in Cinergy Corp. v. Associated Electric & Gas Insurance Services, Ltd., 865 N.E.2d 571 (Ind. 2007) in determining that the Insurers have no duty to defend or indemnify Cinergy in connection with Cinergy's alleged violations of the Clean Air Act; II. Whether the trial court erred when it determined that Cinergy's claims are not covered under the Insurers' policies; and, III. Whether the trial court should have postponed its coverage determination until the underlying federal lawsuit concerning Cinergy's alleged Clean Air Act violations was concluded.

Concluding that the trial court properly entered summary judgment in favor of the Insurers, we affirm. * * *

There was neither an actual or potential occurrence to bring the claims against Cinergy in the underlying federal litigation within the terms of the Insurers' policies. Therefore, trial court properly concluded that the Insurers have no obligation to defend, indemnify or otherwise provide coverage to Cinergy in connection with Cinergy's liabilities for alleged violations of the Clean Air Act for operations related to the Cayuga, Gallagher, Wabash, Gibson, Beckjord, Miami Fort and J.M. Stuart sites. Accordingly, we affirm the trial court's grant of summary judgment in favor of the Insurers.

NFP civil opinions today (1):

In Re The Marriage of Thomas L. Fine and Karen D. Fine (NFP) - "The evidence supports the trial court’s findings of fact that no written contract satisfying the Statute of Frauds for the sale of the Residence existed. In addition, there is no conclusive evidence to establish the equitable exceptions of promissory estoppel or part performance. Therefore, the trial court’s findings support its conclusions of law that Thomas has no ownership interest in the Residence. As a result, the judgment of the trial court is affirmed."

NFP criminal opinions today (1):

Randell Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on October 28, 2009 12:02 PM
Posted to Ind. App.Ct. Decisions

Courts - Kentucky judge rejects mayoral candidate's motion to seal divorce files

Andrew Wolfson reported yesterday in the Louisville Courier Journal:

A judge Tuesday rejected a motion by Louisville mayoral candidate Jim King and his ex-wife, Rebecca, to seal their two divorce files from the 1980s, including one in which she accused him of physically, emotionally and verbally abusing her.

“This court on a weekly basis hears testimony from clients that is highly personal and very public,” Jefferson County Family Court Judge Patty Walker FitzGerald said after a hearing. “The fact is that divorce cases in this state are open.”

While FitzGerald refused to seal the cases entirely, she said she will allow lawyers for the Kings to argue Wednesday for withholding specific documents. She also said she will seal financial records and evaluations of the Kings’ children, which she said are confidential under current court rules.

Lawyers for the Kings indicated that they would appeal the decision to the Court of Appeals. * * *

Attorneys for the Kings — Don Cox and Janice Lintner for Rebecca King and Mark Dobbins for Jim King — argued that the files contain material that would harm their children and grandchildren if made public.

The lawyers also said that the U.S Supreme Court has said that judges have the authority to insure that their records “are not used to gratify, spite or prompt public scandal through the publication of the painful and sometimes disgusting details of a divorce case.”

But attorney Tim Napier argued for The Courier-Journal — which last Saturday published a story about allegations in the 1981 case and opposed the motion to seal — that divorce records have historically been open in Kentucky.

Referring to the allegations against Jim King, Napier said, “The very person who is alleged to have done these things is now running for the highest elected office in the city.”

The Kings filed a motion Tuesday to find The Courier-Journal and reporter Joseph Gerth, who wrote last week’s story, in contempt for reporting on the 1981 case file after FitzGerald said Friday that she was temporarily sealing both files pending Tuesday’s hearing.

But FitzGerald said Tuesday that the file obtained by the newspaper was not sealed when it was given to a reporter by the clerk’s office earlier last week, and Cox announced that the Kings were withdrawing the contempt motion, at least for now.

On June 14, 2004 the ILB posted an entry on a similar situation involving the U.S. Senate race in Illinois, a race that then little-known Barack Obama would ultimately win. The Chicago Tribune story is still available.

Posted by Marcia Oddi on October 28, 2009 11:22 AM
Posted to Courts in general

Ind. Courts - "Justices to hear East Chicago casino case Thursday "

Dan Carden reports today in the NWI Times about the upcoming oral argument tomorrow in the case of Foundations of East Chicago v. City of East Chicago and the Attorney General of Indiana. From the story:

East Chicago's claim on millions of dollars in casino payments will be heard Thursday morning before the Indiana Supreme Court.

At stake is whether the city has the right to decide for itself how local development payments from the Ameristar casino should be spent.

The Foundations of East Chicago, a nonprofit organization, was designated as a recipient of casino revenue in the 1995 local development agreement between East Chicago and the casino.

Money given to Foundations of East Chicago was supposed to be used to improve housing and infrastructure in the city.

However, a 2006 Times investigation revealed Foundations of East Chicago was spending nearly one-third of its annual casino revenue, or some $2 million a year, on lavish salaries for its board of directors and staff and on promotional materials.

In 2007, the General Assembly approved a state law giving East Chicago the authority to take Foundations of East Chicago out of the casino agreement and decide for itself how to spend that local development money.

The Supreme Court will decide whether that law is constitutionally valid.

The Indiana Court of Appeals upheld the law in April, ruling that not only is the law constitutional, but that East Chicago was free to change casino revenue recipients even without the 2007 law.

"In other words, the (casino) is obligated to support the community at a certain level, but it is left to the East Chicago Common Council to determine the identity of the payee(s), and the council has the authority to pass a new ordinance changing the identity of the payee(s) at any time," Chief Judge John G. Baker wrote in the appellate court decision.

Foundations of East Chicago appealed that ruling to the Indiana Supreme Court, contending the Legislature does not have the power to authorize a city to unilaterally rewrite a valid contract.

The ILB has obtained and made available all the filings in the case.

Posted by Marcia Oddi on October 28, 2009 11:11 AM
Posted to Upcoming Oral Arguments

Ind. Courts - More on "Clash of schools, blogs raises free-speech issues"

Updating this Oct. 17th ILB entry quoting an Indianapolis Star story that reported (and included a copy of the complaint) "Butler University is suing Jess Zimmerman, alleging libel and defamation," Andy Gammill reports today in the Star under the headline "Lawsuit dropped in Butler blogger case." The story is interesting:

Butler University said today in a statement that it had dropped a lawsuit against a student who had posted comments about two administrators on his blog. The university will continue with internal disciplinary proceedings against the student, Jess Zimmerman.

The university had sued the anonymous blogger in June to get courts to force him to identify himself, the university statement said. A subpoena led them to Zimmerman.

With his identity revealed, the district on Monday asked the court to dismiss its lawsuit.

Butler took issue with comments Zimmerman posted on his "TrueBU Blog" and which the university claims were defamatory and libelous remarks about two administrators involved in the removal of the student's stepmother, Andrea Gullickson, as chair of the School of Music. She still teaches at the university.

In an email to the Butler community, President Bobby Fong wrote that he values the ability of students and staff to speak out but that the university must also protect against defamatory personal attacks.

"Butler has a duty to safeguard robust academic speech," he wrote. "However, the University also has a commitment and duty to protect the safety of all its members and ensure the opportunity to teach and to learn freely. This, too, is part of creating a campus climate where robust speech can flourish."

On his blog, Zimmerman wrote that he is happy to have the court case dismissed but that the university is still treating him unfairly.

"They still plan to try me on campus, in a manner that I suspect will have a similar chilling effect on free speech and dissent both at Butler and elsewhere," he said, asking his supporters to sign an online petition of support. "Though dropping the lawsuit is a good step, the administration has made no progress towards fulfilling the demands mentioned in the petition."

Posted by Marcia Oddi on October 28, 2009 10:59 AM
Posted to Indiana Courts

Tuesday, October 27, 2009

Ind. Courts - Retired St. Joseph County Superior Court William Means, 80, dies

Here is the story, written by Mary Kate Malone, in the South Bend Tribune, from Oct. 24th. Some quotes:

William Means, a respected political figure in Michiana who served 22 years as St. Joseph Superior Court judge, died Wednesday in a suburban Chicago nursing home. He was 80.

Known for his composure both inside and outside the courtroom, Means was well-liked by attorneys and well-respected by colleagues.

"He had an excellent demeanor for a judge," said St. Joseph Superior Court Judge Michael Scopelitis. "No matter what the situation was, he was able to remain calm and respectful toward everyone in the courtroom." * * *

Means worked as a private attorney in Mishawaka for 30 years before being appointed Superior Court judge in 1986.

"He served the people of this county with real devotion and honor," said Superior Court Judge Jerome Frese. "He was scrupulously fair... so dignified."

Means presided over several high-profile cases, most notably the conviction of Philip Stroud for the murder of three construction workers in Lakeville in 2000.

Means carefully studied every case, pacing in front of his office window that overlooked Main Street, colleagues said.

"He had piles of cases and files and paper in his office, but his mind was clean, sharp and pure," Frese said. "He was very politically astute. He was a statesman, not a politician. He was a jurist, not merely a judge."

Here is the obituary.

Posted by Marcia Oddi on October 27, 2009 04:40 PM
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Rudrappa Gunashekar and Jayashree Gunashekar v. Kay Grose d/b/a America's Affordable Housing, J & K Mfg., an 8-page, 4-1 opinion, Chief Justice Shepard writes:

Rudrappa and Jayashree Gunashekar appealed the trial court’s judgment against them in a suit involving breach of contract, conversion, and deception. The Court of Appeals reversed and remanded solely on their dispositive claim that the court abused its discretion by denying their motion to continue the trial. We granted transfer and now affirm the trial court. * * *

[Justice Rucker's dissent begins] I respectfully dissent. Reversing the trial court’s judgment the Court of Appeals majority concluded ―[t]he trial court abused its discretion in denying the Gunashekars’ pro se motion to continue after their trial attorney withdrew six weeks prior to trial. Gunashekar v. Grose, No. 02A03-0712-CV-614 (Ind. Ct. App. Aug. 12, 2008). Although it may be correct to say that the trial court did not actually abuse its discretion, I do agree that the denial of the motion to continue was grounds for reversal. Involving a claim and counterclaim, and requiring at least some comprehension of insurance proceeds, negotiable instruments, joint and several liability, real estate ownership, contract compliance, attorney fee damages, civil damages for criminal conduct, and preparation for trial, this case presented a level of complexity that few if any pro se litigants would have been able to navigate successfully. With a potential exposure, and indeed an ultimate adverse judgment, of nearly a half million dollars the Gunashekars needed the assistance of trained legal counsel. Fairness and equity required the trial court to afford the Gunashekars a reasonable delay to accomplish this end.

Posted by Marcia Oddi on October 27, 2009 02:06 PM
Posted to Ind. Sup.Ct. Decisions

Law - GAO report blames U.S. News law school rankings for rising cost of legal education

See Ellie Mystal's Above the Law entry here. It begins:

The Government Accountability Office has released a new report on the rising cost of legal education. Who is to blame? Not the ABA. Not university presidents using their law schools as cash cows.

According to the GAO, the U.S. News law school rankings put law school deans in a “resource intensive” competition to rise up the U.S. News list.

Here is the 44-page report.

Posted by Marcia Oddi on October 27, 2009 01:12 PM
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)

For publication opinions today (2):

In Sheila Perdue, et al. v. Anne Waltermann Murphy, et al. , a 22-page opinion, Judge Bradford writes:

In this interlocutory appeal we conclude that the plaintiffs' proposed Class B, which names all welfare applicants with disabilities in the State of Indiana who require reasonable accommodation and have been or will be denied benefits due to their alleged failure to cooperate with the FSSA on any number of grounds, is too broad to constitute a manageable class action under the Americans with Disabilities Act of 1990 (“ADA”) and the Rehabilitation Act of 1973 (“RA”). We further conclude, however, that a more specific class could perhaps be defined. Accordingly, we affirm the trial court's denial of class certification for proposed Class B but remand for a hearing to determine whether a more specific class can be defined.

The Indiana Family and Social Services Administration (“FSSA”) is responsible for the operation of welfare programs in Indiana, including the Food Stamp, Medicaid, and Temporary Assistance for Needy Families (“TANF”) programs. At some point in 2006 or 2007, FSSA contracted with private company IBM to provide many of these services.[4]
________
[4] We recognize that this contract has recently been cancelled. The parties do not claim that this alters their appeal in the instant matter.

In Jeremy D. Simpson v. State of Indiana , a 15-page opinion, Judge Crone writes:

Jeremy D. Simpson appeals his convictions for class A felony voluntary manslaughter and class D felony criminal recklessness. We affirm.

Issues: I. Did the State present sufficient evidence of probative value to allow the jury to negate Simpson's claim that he was legally justified in shooting the victim to defend a third person? II. Did the trial court commit reversible error in denying Simpson's request to recall a State's witness? III. Did the trial court abuse its discretion in refusing Simpson's jury instruction regarding the presumption of innocence and witness credibility?

NFP civil opinions today (5):

Term. of the Parent-Child Rel. of S.W., A.H., and A.S.H.; P.H. and A.H. v. Ind. Dept. of Child Svcs. (NFP)

Term. of the Parent-Child Rel. of Z.E.; and N.R. v. Marion Co. Office, Dept. of Child Svcs., et al. (NFP)

Paternity of E.P.; M.B. v. S.P. (NFP)

Lenell Burse v. Review Board of the Indiana Dept. of Workforce Development, et al. (NFP)

Irvin L. Brimmage v. Review Board, and The Hapak Companies, Inc. (NFP)

NFP criminal opinions today (9):

Stephen Fitzgerald v. State of Indiana (NFP)

Willie Norman v. State of Indiana (NFP)

Matthew Emerson, Sr. v. State of Indiana (NFP)

Anton Williams v. State of Indiana (NFP)

Bryan D. Cowan v. State of Indiana (NFP)

Brandon Sampley v. State of Indiana (NFP)

Scott A. Tarter v. State of Indiana (NFP)

Nancy N. Bailey v. State of Indiana (NFP)

Earnest Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on October 27, 2009 11:51 AM
Posted to Ind. App.Ct. Decisions