Tuesday, December 01, 2009

Courts - "Today is the first day of the so-called 'days are days' approach to calculating time" under the Federal Rules.

See Howard Bashman's discussion in How Appealing.

Posted by Marcia Oddi on December 1, 2009 05:47 PM
Posted to Courts in general

Ind. Decisions - Supreme Court decides one today

In Brennen Baker and Moisture Management v. Tremco Inc., and Rick Gibson, an 11-page, 5-0 opinion, Chief Justice Shepard writes:

Appellant Brennan Baker contends that constructive discharge falls within the public policy exception to Indiana's doctrine of employment at will. We conclude that a claim may rest on involuntary resignation, but only where the cause fits within the grounds recognized by our decisions on retaliatory discharge. Baker's claim does not. * * *

Although the parties raise numerous issues for review, we will only address three.[1] First, we consider whether a claim for constructive retaliatory discharge falls within Indiana‟s public policy exception to the employment at will doctrine. Second, we consider whether the non competition agreement is unenforceable because Baker is actually competing with a subsidiary of Tremco. Third, we judge whether a statement from the former supervisor was slanderous per se so as to create an actionable defamation claim. * * *

We affirm the judgment of the trial court.
____________
[1] We summarily affirm the Court of Appeals disposition of the claims for slander about mental illness as slander per quod, blacklisting statute, and tortious interference with contract. Ind. App. Rule 58(A).

Posted by Marcia Oddi on December 1, 2009 02:50 PM
Posted to Ind. Sup.Ct. Decisions

Courts - "New recusal rules for Mich. Supreme Court under fire"

Mark Hornbeck reports today in the Detroit News in a story that begins:

Lansing -- New rules governing disqualification of justices adopted late Thanksgiving eve by the Michigan Supreme Court have touched off controversy about whether the standards are fairly drawn and constitutional.

The state's high court voted 4-3 Wednesday in favor of administrative rules that would let the court decide whether to disqualify a justice from considering a case in which the jurist has an apparent bias or conflict of interest. Until now, decisions about recusal were made by the justice in question.

The rules were crafted in reaction to a decision handed down this summer by the U.S. Supreme Court. In that ruling, the federal justices said there was a due process violation in a case involving a $3 million contribution from a corporate executive officer to the campaign of a West Virginia judge who was about to consider overturning a $50 million judgment against the donor's company. The judge in that case didn't disqualify himself.

"We don't want a situation like that in Michigan," Chief Justice Marilyn Jean Kelly said on Detroit talk radio Monday. "The constitutional rights of judges don't overbalance the right of the people to get a fair trial."

But Justices Maura Corrigan and Robert Young, who cast dissenting votes on the rule change, questioned the authority of the court to disqualify a justice and the constitutionality of removing from a case a judge elected to office. They also questioned what they called "vague impropriety standards" that could be considered grounds for disqualification and be used to alter the balance of the court on important cases.

"This is a huge threat to our liberties as Americans," Corrigan said.

She wrote in her dissenting opinion that "it is always wise to be wary of any government action taken the day before a holiday or late on a Friday."

Justice Stephen Markman wrote that the new rule opens up the potential of "gamesmanship" and "politicization" of the recusal process.

The court is deeply divided between Justices Corrigan, Young and Markman, who were nominated by the Republican Party, and justices Kelly, Michael Cavanagh and Diane Hathaway, who were nominated by Democrats. Justice Elizabeth Weaver also was nominated by the GOP but is seen as a moderate swing vote on the court who usually sides with the Democratic-leaning jurists. The justices have feuded in recent months over administrative rules and the closing of judicial offices as well as demonstrating sharp differences in cases before the court.

Posted by Marcia Oddi on December 1, 2009 01:08 PM
Posted to Courts in general

Courts - "Doing time well past their prime"

From a column today in the Washington Post, written by Abigail Trafford:

Ashen-faced was the way the press described Brooke Astor's son when he heard the jury's verdict convicting him of defrauding his mother of tens of millions of dollars as she lay dying of Alzheimer's disease. Barring an appeal, Anthony D. Marshall, 85, will be sentenced in early December. He faces at least one and as many as 25 years behind bars. (Astor, a New York philanthropist, was 105 when she died in 2007.)

Marshall looks old, with his white hair and delicate patrician lips. After a certain age, could a relatively short prison term amount to a life sentence? Just as the Supreme Court is reviewing the question of whether certain juveniles may be too young to serve out a life sentence, others wonder if perhaps some at the other end of the age spectrum might be too old.

Before we go all gooey about Grandpops going off in chains, we'd better take another look at what it is to be old today. Our concept of youth may be stable, but old age is not what it used to be. The new old age is more vibrant and varied. Octogenarians run marathons and fall in love -- and there are more of them. The fastest-growing age group in the United States is those older than 85. While we lag behind other developed countries in life expectancy calculated at birth, for those of us who live to age 65, life expectancy is the longest of any nation. * * *

It's hard to know how "old" Anthony Marshall really is, apart from his chronological age. His attorneys will try to keep him out of prison. Many factors are taken into account when a judge sentences a person to prison: the nature of the crime, the circumstances of the defendant, including health status. But age by itself should not be a decisive factor.

Besides, judges are known for staying on the bench well into their later decades. Four U.S. Supreme Court justices are in their 70s, and one is almost 90 years old. If they can do their job, there's no reason people of a similar age who are convicted of a crime can't pay their debt to society behind bars.

Posted by Marcia Oddi on December 1, 2009 12:59 PM
Posted to Courts in general

Ind. Decisions - Today's opinions

I'm not seeing any cases posted today from the COA, after yesterday's 30, but am suspicious because their page still bears the Nov. 30th date. Stay tuned.

Posted by Marcia Oddi on December 1, 2009 12:55 PM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: "Critics say FSSA offices fail to offer voter registration forms"

This Feb. 2, 2009 ILB entry quoted from an Indianapolis Star story that began:

When low-income Hoosiers turn to state social-services offices for help, they're supposed to get something more than financial assistance. They're also supposed to be able to register to vote.

But two national voting-rights groups say Indiana is failing that federally required responsibility, and, as they have done elsewhere, are threatening to sue the state.

Yesterday evening Gabriel Baird of the Cleveland Plain Dealer reported:

Ohio Secretary of State Jennifer Brunner has agreed to a legal settlement that will result in more low-income residents being registered to vote.

The settlement in the U.S. District Court for the Northern District of Ohio resolves a three-year legal battle between the state and two women, represented by the Association of Community Organizations for Reform Now or ACORN.

Attorneys for ACORN had argued that under the National Voter Registration Act of 1993, the secretary of state was required to make sure county job and family services offices gave people applying for or receiving aid an opportunity to register to vote.

As a result of this settlement that will now happen.

"We have a clear judicial directive from the appeals court in this case that the secretary of state's office has supervisory authority and responsibility to implement federal voter registration law," said Jeff Ortega, Brunner's spokesman.

After a similar settlement in Missouri, social service agencies registered more than 100,000 residents in eight months compared to 8,000 in the previous year.

Amy Teitelman, director of OHIO ACORN, said she believes the settlement will have a similar effect in Ohio.

"This means in the state of Ohio many more Ohioans, especially low-income Ohioans, are going to have the opportunity to register to vote," Teitelman said.

ACORN is pursuing comparable lawsuits in Indiana and New Mexico.

Posted by Marcia Oddi on December 1, 2009 10:54 AM
Posted to Indiana Government

Law - "U.S. House posts lawmakers' expense data"

From USA Today, Fredreka Schouten reports in a story that begins:

WASHINGTON — House spending reports went online for the first time Monday, detailing how much individual lawmakers pay out for everything from salaries to stamps.

The step moves the House away from a decades-old practice of publishing the information in thick tomes every three months, but congressional watchdogs, such as Taxpayers for Common Sense, say it doesn't represent full disclosure.

The online version, available at disbursements.house.gov, is 3,397 pages long and is an electronic replica of the printed volumes. It also covers just a three-month period, July 1 to Sept. 30. The Senate, meanwhile, doesn't plan to post its expense data online until 2011.

"We're certainly glad that it's online and that constituents won't have to fly to Washington to review the documents, but we still got a ways to go before this is truly transparent," said Steve Ellis, vice president of Taxpayers for Common Sense. "Since they are the only ones who can decide what to disclose, they are erring on the side of protecting themselves."

House Speaker Nancy Pelosi, D-Calif., ordered the payments posted online in June after a scandal erupted in Britain over members of Parliament billing taxpayers for such things as X-rated movies and gardening expenses. In a statement, Pelosi said publishing the expenses online "will expand accountability to taxpayers and the press."

Her spokesman, Drew Hammill, said, "We tried to get something online as soon as possible. We're always open to suggestions for greater transparency."

Posted by Marcia Oddi on December 1, 2009 10:37 AM
Posted to General Law Related

Ind. Courts - "Repeat offenders: Who's responsible?"

Kelli Stopczynski of South Bend WSBT has a long story and video (last updated Nov. 30th) under the heading "Repeat offenders: Who's responsible?" A few quotes:

SOUTH BEND ― The criminal justice system is supposed to fight crime and hold offenders responsible for their actions, but a WSBT investigation uncovered dozens of repeat offenders in St. Joseph County alone who break the law over and over again. We looked into why it happens and who is responsible for keeping criminals off the streets. * * *

Critics argue one way to get tougher sentences is by electing judges so they are accountable to the public.

“When we elect the mayor, he or she appoints a police chief ― those are our policeman,” said Dvorak. “We elect a sheriff. The sheriff has responsibility to the jail as well as their road patrol and their detectives. We elect prosecutors, but we don't elect judges. There is a glitch in that system.”

St. Joseph and Lake counties are the only two counties in Indiana that have appointed judges rather than elected judges. During the last legislative session, Dvorak lobbied for a bill that would require judges be elected here. It passed in the House and Senate, but the governor vetoed it.

Chief St. Joseph County judge Michael Scopelitis doesn’t think electing judges is a good idea.

“It hurts the public,” he said, “because instead of getting a judge's best judgment, a judge may be getting too much political pressure to do something that is not, in the judge's opinion, the best thing to do.”

The judges who sentenced Orta for several past convictions wouldn't talk to WSBT on camera. Scopelitis agreed to an interview, but said he ethically could not discuss Orta because he is still awaiting sentencing for the murder conviction.

“We sentence people to prison sentences, and then when they get out they re-offend. I see that as a problem with the entire criminal justice process,” Scopelitis said.

He points to the fact that sentencing criteria are set by state lawmakers ― including the number of years an offender serves in the department of corrections.

“In Indiana, as in almost every state, we have a list of literally over a dozen criteria we have to look at [including] aggravating criteria, mitigating factors. And then we have to pick a sentence within the range,” Scopelitis explained.

Another issue, says Scopelitis, is where to put all the offenders. Last year more than15,000 misdemeanor and 2,000 felony cases went through the St. Joseph County court system.

"What do you do?" Scopelitis asked. "Can we send them all to the DOC? Impossible! Cannot be done."

Some offenses, like Orta's theft conviction, qualify for community corrections or work release programs, not prison time. The state can charge counties money if they send criminals to prison for those crimes.

Scopelitis said he knows some people insist Elkhart County sends more offenders to the DOC than St. Joseph County, but he doubts that's true.

Posted by Marcia Oddi on December 1, 2009 10:25 AM
Posted to Indiana Courts

Ind. Law - Part 3 of "Grappling with Meth in Elkhart County"

Updating this ILB entry from yesterday, today's story in the Elkhart Truth series, reported today by Amelia Jeffirs, is headed "After meth, there's no room for family."

Posted by Marcia Oddi on December 1, 2009 10:17 AM
Posted to Indiana Law

Ind. Courts - "Vanderburgh County Court records go online today: Private firm will be charging access fee"

Thomas B. Langhorne reports today in a lengthy story in the Evansville Courier & Press:

EVANSVILLE — An idea Vanderburgh County has studied for years — court records widely available on the Internet — becomes a reality today.

Vanderburgh County announced Monday that electronic records for criminal and civil cases dating from 2005 to the present will go online this morning on the Web site of a private firm that already posts court records online in 47 other Indiana counties.

Data for more than a million cases for which computerized records exist, dating to January 1993, will be loaded continuously into a database operated by Richmond, Ind.-based Doxpop LLC with the goal of completing the work before Christmas.

But access to all but limited information on pending cases and court calendars will cost you.

Rather than have the county pay start-up costs, estimated to be as high as $250,000, Vanderburgh County agreed last year to let Doxpop absorb the costs and attempt to recoup them through subscriptions. * * *

The new initiative eases a loss for County Clerk Susan Kirk, who already had disclosed plans to close a library of six free public-access computers used for looking up case information to shift the employee supervising it to fill a vacant small-claims clerk position she called indispensable.

It comes as Indiana Chief Justice Randall T. Shepard continues to pursue a separate project, through the Judicial Technology and Automation Committee (JTAC), to link Indiana courts electronically and post their case records online free of charge.

But that project relies on a different case management system, Odyssey, from a different software database provider, Tyler Technologies.

Shepard has proposed linking all Indiana courts by 2015, but the judicial committee and Doxpop have not struck an agreement on how the private firm would be able to interface with the state's Odyssey system. For the time being, local users could not access Odyssey's court records through Doxpop.

The "six free public access computers" refer to this Evansville Courier & Pressstory, "Clerk unplugging computers: Staff cut ending free public access", quoted in an ILB entry from Nov. 28th.

But users who are not Doxpop subscribers may look up the cause number for any pending case, and browse court calendars by week or day at no cost, via their cells or computers, mitigating the loss of the six public terminals. The ILB also checked the Doxpop blog, which shows that:

• Currently, information on all public cases filed from January 2005 through current is available and updated every 15 minutes.
  
• In early December, all remaining cases will be added back through January 1993. (Limited information will be available on many cases through 1980, but complete coverage starts in 1993.)

ILB thoughts: As indicated in the upper right-hand corner of this blog, Doxpop has been a supporter of the ILB since April 1, 2008. But for years, as longtime ILB readers will recall (here is the long list of entries), the ILB has been writing on the project to link together the case information in the county courts and the possibility of JTAC and Doxpop working cooperatively. I see no signs of progress however.

Posted by Marcia Oddi on December 1, 2009 09:40 AM
Posted to Indiana Courts

Ind. Courts - Still more on: "Indianapolis Courts, City dedicate $2 Million to Clear Backlog of Cases for Children in Need of Court Appointed Special Advocates"

Updating this ILB entry from Nov. 25th, the Richmond Palladium-Item has an editorial today headed "Lawmakers must fund advocates for children." It is a reprint of the Indy Star's Nov. 27th editorial headed "It's state's turn to step up for kids." Some quotes:

Indiana's foster care system is a maze that can leave even legally savvy adults feeling lost. It can be much worse for children, the one party that often lacks representation as cases move through the courts.

It's greatly encouraging then that Indianapolis Mayor Greg Ballard has decided, despite a tight city budget that has forced cuts in most services, to invest $2 million in recruiting and training up to 200 volunteer child advocates in Marion County. * * *

Yet the city's move, as welcome as it is, will serve only as a short-term solution.

As noted, a four-year-old state law requires that advocates be assigned to each child in foster care. The state now covers most child welfare costs, but advocate programs aren't included. About 4,000 children were on waiting lists for an advocate in early 2009.

In short, the state isn't willing to pay for a program that it requires. The state Court of Appeals, meanwhile, has held local governments, which like Indianapolis are frequently strapped for cash, accountable for the cost of supplying advocates.

The General Assembly needs to address the discrepancy between what it requires and what it pays for in next year's session, even though the state itself has been staggered by revenue shortfalls.

How can the state afford to resolve this problem with money so tight? It's a question of priorities. Greg Ballard has shown he understands that. It's up to the legislature and Gov. Mitch Daniels to do the same.

Posted by Marcia Oddi on December 1, 2009 09:02 AM
Posted to Indiana Courts | Indiana Government | Indiana Law

Law - "Legally Blonde" in Britain

The headline to the story in the Nov. 13th issue of the British paper, The Daily Mail, reads "Beautician turns barrister to win David and Goliath High Court battle with construction giant." It begins:

Georgina Blackwell makes an unlikely candidate to stand up in front of a judge and take on seasoned lawyers in the High Court.

As she herself points out, she's a young, blonde beautician from Essex.

But when her mother's home and business were put at risk in an access dispute with one of the country's biggest homebuilders, the 23-year-old decided she had to fight back.

Posted by Marcia Oddi on December 1, 2009 08:54 AM
Posted to General Law Related

Monday, November 30, 2009

Ind. Decisions - Supreme Court issues two more opinions late today

In Ava McSwane, et al v. Bloomington Hospital and Healthcare System and Jean M. Eelma, M.D., an11-page, split (see below) opinion, Chief Justice Shepard writes:

The estate of a domestic violence victim whose former husband killed her on the way home after she insisted on leaving the hospital with him sued the hospital and the treating physician for her death. The trial court granted summary judgment on the basis of lack of duty and contributory negligence. We affirm. * * *

While negligence is generally a question for the finder of fact, where the evidence permits only a single inference, contributory negligence may be a matter of law for the court. Funston v. Sch. Town of Muncie, 849 N.E.2d 595, 599 (Ind. 2006). The trial court found that Malia’s insistence on leaving with Monty in the face of offers by hospital staff and pleas by her own mother was negligence that contributed to her injury. This was not error.

Conclusion. We affirm the judgment of the trial court.

Sullivan, J., concurring in part and concurring in result, agrees with Chief Justice Shepard that summary judgment was appropriate on grounds that the defendants did not breach their duty of care as a matter of law and, therefore, it not being necessary to address the issue of contributory negligence, expresses no view on it.
Boehm, J., concurs in result.
Rucker, J., dissents with separate opinion in which Dickson, J., joins. [the opinion begins] I agree with the majority that “a hospital’s duty of care to a patient who presents observable signs of domestic abuse includes some reasonable measures to address the patient’s risk.” Although the existence of duty is a matter of law for the courts to decide, a breach of duty is usually a matter left to the trier of fact. King v. Northeast Security, Inc., 790 N.E.2d 474, 484 (Ind. 2003). Only where the facts are undisputed and lead to but a single inference or conclusion may the court as a matter of law determine whether a breach of duty has occurred. Id. Unlike the majority however I do not believe the question of breach in this case can be determined as a matter of law.

In Term. of Parent-Child Rel. of M.B., et al; T.B. v. IDCS, a 15-page, 5-0, 2 opinion decision, Justice Sullivan writes:

A mother seeks restoration of her parental rights, contending that she voluntarily agreed to the termination on the condition that she could continue visitation with her children, only to have visitation terminated at a subsequent hearing of which she received no notice or opportunity to be heard. Conditioning the voluntary termination of parental rights on continuing post-adoption visitation irreconcilably conflicts with Indiana adoption law and is not permitted. On the facts of this case, the mother is entitled to a hearing on the termination of her visitation rights but not a full restoration of her parental rights. * * *

We are presented with a situation in which Mother contends that she voluntarily agreed to the termination of her parental rights subject to continued and ongoing visitation with her child-ren, only to have that visitation right terminated at a hearing of which she received no notice and no opportunity to be heard. She asks to restore the status quo ante such that all her parental rights would be restored and any termination proceedings would need to begin anew.

For the following reasons, set forth in detail below, we conclude that Mother is entitled to some relief but not a full restoration of her parental rights. When she voluntarily relinquished her parental rights, it was not subject to unconditional future visitation with her children but only visitation so long as it was in the Children’s best interests. As such, she knew and agreed that visitation might be terminated in the future. On the other hand, due process demanded that she be given notice and the opportunity to be heard before visitation was terminated. * * *

We hold that, unless all of the provisions of Indiana’s open adoption statutes (I.C. §§ 31-19-16-1 & 2) are satisfied, the voluntary termination of parental rights may not be conditioned upon post-adoption contact privileges. * * *

We agree with the Court of Appeals that the visitation proviso contained in the Adden-dum was invalid as a matter of Indiana law, see supra Part I. We decline to analyze this as a matter of contract law, however, and instead conclude that the Addendum should be honored af-ter taking into account the following three factors. * * *

Given these three factors – that the State voiced no objection to the visitation proviso and acknowledged and complied with it; the trial court’s colloquy with Mother expressly referenced the visitation proviso; and the visitation proviso was not unconditional – it would be inequitable and unjust to hold that Mother’s voluntary relinquishment of her parental rights was not subject to ongoing but conditional visitation rights. We hold, on the facts of this case, that Mother’s pa-rental rights were terminated as provided in I.C. §§ 31-35-1-12(2)(A) & (B) except that that she had the right to ongoing periodic visitation with the Children unless and until a court were to de-termine that such visitation was no longer in the children’s best interest. If a court were to make such a determination, she would not be entitled to further visitation. * * *

Having found that Mother’s voluntary relinquishment of her parental rights was subject to conditional visitation rights, Mother further maintains that because her rights to notice and an opportunity to be heard at the hearing terminating her visitation rights were violated, the earlier termination of her parental rights should also be vacated. We hold that her parental rights remain terminated and that she is entitled to no relief in that regard. She consented to the termination in a proceeding that appears to us to have accorded with all relevant law, save the visitation provi-so. While she retains an enforceable right as to the visitation proviso, this does not create any basis for reopening the termination of parental rights proceeding.

Conclusion. Having previously granted transfer, we affirm the trial court’s acceptance of Mother’s vo-luntary termination of her parental rights to the Children. We reverse the trial court’s decision to terminate Mother’s visitation rights at the three month CHINS review hearing and remand this case to the trial court with instructions that should the State continue to seek termination of Mother’s visitation rights, the court consider the request at a hearing that accords with the requirements discussed in this opinion.

Shepard, C.J., and Dickson and Rucker, JJ., concur.
Boehm, J., concurs in result with separate opinion. [that begins] I concur in Part III of the majority opinion. I agree with the result reached by the majori-ty in Parts I and II, but I do not agree that a consent with an invalid condition is nonetheless a consent. I would, as the majority puts it, resolve Mother’s claim as a matter of contract. Mother consented to termination, but attached an addendum containing a written condition—on its face a perpetual unchallengeable right to visitation—that violated several statutory provisions. A con-sent with an unacceptable condition is no consent at all.

Posted by Marcia Oddi on November 30, 2009 04:26 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - A new Indianapolis parking citations court will open tomorrow, Dec. 1st [Updated 12/1/09]

From a press release issued by the Indy mayor's office:

INDIANAPOLIS - On December 1st, the City of Indianapolis will pilot a parking citation court in an effort to improve the way the city collects revenue from parking citations. The court will hold hearings at the former Guardian Home facility and will be managed five days a week to give violators an opportunity to pay outstanding citations.

"We have seen a significant lack of collections with unpaid parking citations and feel this is a way to increase revenue while working under our Six Sigma process to manage the program with greater efficiencies," said Manuel Mendez, Deputy Controller.

Using Six Sigma process improvement strategies, it is estimated that under this program the City may collect an additional $352,000 to $520,000 in parking citation revenue over the next 12 months.

The parking citation court will be managed by T2 Systems, which currently oversees the City's collections and software for parking tickets. The court, which will hold hearings on a daily basis, will allow violators increased opportunities from the currently run system which holds hearings every two weeks.

"Our goal with this program is to assist the City in collecting parking citation revenue. Working together with the City, T2 Systems also offers payment options over the Internet, mail or IVR to make paying citations as easy and convenient as possible," said Jim Zaloudek, Chief Financial Officer for T2. "This allows us to fulfill our role of helping the City's parking operations be as profitable and efficient as possible."

If citations are not paid prior to their scheduled hearing, the City may request a fine of up to $2,500 per citation. Upon receiving a judgment for an unpaid citation, individuals responsible could be subject to collections actions or having their vehicle registration suspended.

The citation court opens Tuesday, December 1st from the hours of 9am to 3pm at the Guardian Home located at 5751 University Ave.

The ILB is not clear re in what respect this will be a "court" and "hold hearings."

[Updated 12/1/09] "Indianapolis gets tougher on unpaid parking fines" is the headline to this story today in the Indianapolis Star, reported by Tom Spalding.

Posted by Marcia Oddi on November 30, 2009 04:14 PM
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Clay City Consolidated School Corp. v. Ronna Timberman and John Pipes, II, a 13-page, 5-0 opinion, Justice Sullivan writes

Following the death of 13-year-old Kodi Pipes at basketball practice for his school's team, his parents brought a child wrongful death action against the school corporation. This case requires us to determine whether Indiana law recognizes a rebuttable presumption that children between the ages of seven and 14 are incapable of contributory negligence. We hold that Indiana does recognize the presumption. As such, we affirm the jury verdict for the plaintiffs.

Posted by Marcia Oddi on November 30, 2009 02:32 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending November 25, 2009

Here is the Clerk's transfer list for the week ending November 25, 2009. It is two pages long.

One transfer was granted last week, in the case of Kenneth J. Brown v. State of Indiana - see this Nov. 24th ILB entry for details.
___________

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 30, 2009 02:19 PM
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court denies rehearing in David Camm case [Updated]

Here is the complete text of the Order:

Appellee's Petition For Rehearing is DENIED this 30th day of November, 2009.

Dickson, Sullivan, and Boehm, JJ., concur.
Shepard, C.J., and Rucker, J., dissent and would grant rehearing and affirm the trial court.

Here is the June 26, 2009, 4-1, opinion, written by Justice Dickson. It concluded:

We reverse the defendant's convictions and remand for new trial or other proceedings consistent with this opinion.

Sullivan, Boehm, and Rucker, JJ., concur.
Shepard, C.J., dissents with separate opinion.

Here is a list of all "David Camm" ILB entries.

[Updated at 3:00 PM] Here is a just-posted story by Ben Zion Hershberg of the Louisville Courier Journal:

The Indiana Supreme Court said Monday it won’t reconsider its decision to overturn David Camm’s conviction of the murders of his wife and their two children in September 2000.

On June 26, the court ruled 4-1 that Camm’s 2006 conviction of the murders of his family in the garage of their Georgetown home should be overturned because of arguments by Floyd County Prosecutor Keith Henderson that Camm killed his family to cover up alleged molestation of his 5-year old daughter Jill.

The court said there was no evidence connecting Camm to the alleged molestation. It also said that testimony by a friend of Camm’s wife Kimberly that she expected to see Camm about the time investigators said the murders occurred shouldn’t have been allowed because it could not be challenged by the defense.

Monday’s ruling sends the case back to Floyd County Prosecutor Keith Henderson. He could not be reached immediately for comment.

The Indiana Attorney General’s office had asked the Supreme Court in July to reconsider its decision. The decision not to do so came in a one-sentence order Monday supported by three of the justices, with two dissenting.

Camm has been convicted twice, but both were overturned by higher courts.

Posted by Marcia Oddi on November 30, 2009 01:27 PM
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (9):

In G.Q. v. Caleb Branam and Bloomington Hospital an dHealthcare System , a 10-page opinion, Judge May writes:

G.Q. appeals the trial court’s order committing him to Bloomington Care Crisis Center and authorizing the facility to administer medications without his consent. We affirm.

Truck City of Gary, Inc. v. Calumet Realty Corp. - "At the very latest, the Authority took possession of the Premises on May 10, 2007, when it executed the Agreement with Truck City. * * * In so doing, the Authority exerted dominion and control over the Premises and thereby terminated the Lease between Calumet and Truck City. As such, Calumet was no longer entitled to collect rent from Truck City. Consequently, we reverse the trial court’s grant of Calumet’s summary judgment motion and remand with instructions to enter summary judgment in favor of Truck City. Reversed and remanded."

Anna C. Finnerty v. Gerald W. Clutter - "We conclude that the trial court did not abuse its discretion when it ordered that church attendance during Father’s parenting time was “his prerogative,” but recommended that the children continue to attend church during his parenting time “if it has been their practice in the past to do so.” We affirm."

In Anna Mae Hardebeck v. James A. Hardebeck , a 15-page, 2-1 opinion, Judge Najam concludes:

Wife's argument that the dissolution court abused its discretion in finding dissipation must fail. Affirmed.

BARNES, J., concurs.
KIRSCH, J., concurs in part and dissents in part with separate opinion: [which reads in part] - “For better, for worse; for richer, for poorer.”

These words uttered at the beginning of so many marital relationships oftentimes come into fuller focus when those relationships are dissolved.

My colleagues hold that the trial court was within its discretion in concluding that a spouse may be found to have dissipated property for her refusal to sign and file joint tax returns. I respectfully dissent from that holding. * * *

From my perspective, Wife was not only within her statutory rights in refusing to file a joint tax return, but she may have been acting with great prudence in doing so. I would reverse the trial court's finding that Wife's refusal to sign joint income tax returns was dissipation.

In Estate of Andrea B. Eguia; Graciela Telez v. Esther B. Eguia, et al, a 7-page opinion, Judge May concludes:

This case involves the sensitive issue of how a court should resolve a property dispute arising among members of a religious organization. This issue is better litigated by parties that have a true stake in the outcome. See Schloss, 553 N.E.2d at 1206 (standing requirement is designed to ensure litigation will vigorously contested). Telez has not demonstrated that the probate court’s resolution of the issue has affected or will affect her in any way. Therefore, we conclude she lacks standing, and we dismiss her appeal. Dismissed.

In Term. of Parent-Child Rel. of A.S.; K.S. v. IDCS, a 15-page, 2-1 opinion, Judge Najam writes:

K.S. (“Mother”) appeals from the trial court's termination of her parental rights over her minor daughter, A.S., following a hearing. Mother raises two issues for our review, but we address only the following dispositive issue: whether the trial court abused its discretion when it permitted Mother's trial counsel to withdraw her appearance under the Marion Circuit and Superior Court Civil Division rule on the withdrawal of appearances. We reverse and remand with instructions. * * *

In sum, we hold that the trial court abused its discretion when it granted Mother's attorney's oral motion to withdraw her appearance at the commencement of the March 16 hearing in violation of the local rule. Here, as in In re D.A., Mother's attorney did not notify Mother of her intention to withdraw. 869 N.E.2d at 509. The local rule also required Mother's attorney to expressly inform Mother of the potential consequences of the withdrawal, and the undisputed evidence demonstrates that Mother's attorney did not do so. * * *

BARNES, J., concurs.
KIRSCH, J., dissents with separate opinion. [which begins] I respectfully dissent. Mother put counsel and the trial court in an untenable position. On February 27, 2009, the court set this matter for hearing on March 16, 2009. Counsel notified Mother of the hearing, stated that she needed to know whether Mother would attend, and advised Mother that she could not adequately represent her unless she attended or at least communicated with her. Mother did not respond. Because Mother failed to communicate or cooperate with her lawyer, counsel could not prepare for the final hearing or defend against the termination. Counsel did not know until the hearing itself occurred whether Mother would attend. Counsel could not give Mother ten days notice of her intent to withdraw because she had no such intent until the hearing itself occurred and Mother failed to appear.

In Stefen Rice v. State of Indiana , a 12-page opinion, Judge May writes:

Stefen Rice appeals his conviction of reckless homicide, a Class C felony. Rice raises four issues: (1) whether the trial court abused its discretion by instructing alternate jurors that they could participate in discussions; (2) whether the trial court abused its discretion by admitting two photographs from the autopsy; (3) whether the trial court abused its discretion by excluding a portion of the evidence technician's testimony; and (4) whether the evidence was sufficient to support Rice's conviction. We affirm. * * *

Rice argues alternate jurors should not be allowed to participate in discussions, because discussions are the functional equivalent of deliberations. See Ives v. State, 418 N.E.2d 220, 225 (Ind. 1981) (holding alternates may retire with jury, but are not permitted to participate in deliberations). Furthermore, he argues, if discussions are de facto deliberations, allowing alternates to participate in discussions impermissibly increases the size of the jury. * * *

However, Jury Rule 20, which was adopted by our Supreme Court in the face of precedent prohibiting alternates from participating in deliberations, “unambiguously made a distinction between discussions and deliberations.” Id. We agree with the Weatherspoon panel that we “are not at liberty to rewrite the rules promulgated by our Supreme Court,” id.; therefore, we hold the trial court did not err in instructing the jury.

In Desmond Davidson v. State of Indiana , a 14-page, 2 opinion decision, Judge Najam writes:

Davidson now appeals his sentence for auto theft. * * *

Initially, we address the threshold question presented by Davidson on appeal, namely, whether we ought to consider the suspended portion of his sentence as qualitatively different from the executed portion of his sentence for purposes of determining whether the trial court abused its discretion in sentencing him and whether his sentence is inappropriate. Members of this court have been unable to reach unanimous agreement on this issue. Judge May was the first to state her belief that “A year is still a year, and a sentence is still a sentence,” and that suspended sentences ought to be treated no differently from executed sentences for purposes of appellate review. Beck v. State, 790 N.E.2d 520, 523 (Ind. Ct. App. 2003) (Mattingly-May, J., concurring in result). The majority in Beck, however, stated its belief that a sentence is not a “maximum” sentence, even if it equals the maximum time allowed by statute for a particular crime, if part of that time is suspended. * * *

In Eaton v. State, 825 N.E.2d 1287 (Ind. Ct. App. 2005), the majority followed Cox and Judge May's point of view. Judge Kirsch dissented, stating, “a suspended sentence is not the same as an executed sentence, and time spent on work release through a community corrections program is not the same as time spent in a state prison.” * * *

Most recently, a panel of this court adopted Judge Kirsch's view and held, “for purposes of Rule 7(B) review, a maximum sentence is not just a sentence of maximum length, but a fully executed sentence of maximum length.” Jenkins v. State, 909 N.E.2d 1080, 1085-86 (Ind. Ct. App. 2009), trans. pending. * * *

We agree with the rationale in Beck and Jenkins and hold that, in the appellate review of sentencing decisions, we will “not simply [look] at the number of years of the sentence[,]” but will “look at the total sentence actually imposed (including whether some or all of a sentence was suspended or suspended to probation)[.]” See Eaton, 825 N.E.2d at 1291 (Kirsch, C.J., dissenting). Accordingly, we reject Davidson's invitation to review his partially-suspended advisory sentence the same as if it were a fully-executed advisory sentence. * * *

KIRSCH, J., concurs.
BARNES, J., concurs in result with separate opinion. [that begins and ends] I write to concur in result, noting that I am in full accord with all parts of the majority opinion, except where it agrees with another panel of this court's opinion in Jenkins. I believe that the interpretation Judge May first gave in her concurrence in Beck, i.e. that “A year is still a year, and a sentence is still a sentence,” is the most legally sound manner in which to assess a sentence. * * *

I do not have any sympathy for convicted defendants who violate reasonable terms of probation. However, it seems to me that we best discharge our constitutional sentencing review prerogative by considering a sentence in its entirety, and as if any suspended portion of that sentence would be imposed. For these reasons, I would not follow the reasoning of my colleagues in the majority and in Jenkins, and I believe that when reviewing a sentence on appeal, we should treat a fully or partially suspended sentence no differently than a fully executed sentence. In other words, I would review Davidson's 545-day sentence as a 545-day sentence, without regard for the fact that a majority of that sentence was suspended to probation. This is Davidson's one chance for full appellate review of the 545-day sentence, and I would provide it to him. That said, I do not believe the trial court abused its discretion in sentencing Davidson or that his sentence is inappropriate.

Jack Jervis v. State of Indiana - "Jack Jervis was convicted in 2001 of murder. We affirmed his conviction, and he petitioned for post-conviction relief, alleging he received ineffective assistance of trial counsel. The post-conviction court denied the petition, and we affirm."

NFP civil opinions today (5):

Christopher Cornett v. Everett Bamish and Mary Bamish (NFP) - "The trial court's judgment in the instant case is not precluded by or in contravention of our drainage laws."

Timberland Home Center, Inc. and Timberland Lumber Co. v. Hansen & Horn Group, Inc. (NFP) - "Upon appeal, Timberland challenges the trial court’s order on several grounds, including that it did not include findings of fact and conclusions thereon as required by Indiana Trial Rules 52 and 65(D). Concluding that such findings are necessary to support a preliminary injunction in the instant case, we reverse and remand to the trial court for further proceedings."

Melisa J. Chenoweth v. Michael D. Chenoweth (NFP) - "In sum, we conclude that the short duration of the marriage, the pre-marital value of Wife’s 401(k) account, and the relative earnings of the parties justify a deviation from the 50/50 presumptive split of the marital estate and remand for division of the marital estate in accordance with this decision. Because of our holding on this issue, we need not address other issues involving the division of marital property. These include the division of uninsured medical expenses, the disposition of the marital residence, and the trial court’s order that Wife refinance the marital residence to satisfy the equalization judgment. Instead, the trial court shall address these issues on remand in accordance with this decision. Further, on remand, the trial court shall determine a retroactive support award. In all other respects, we affirm."

Term. of the Parent-Child Rel. of: L.B. v. Ind. Dept. of Child Svcs. (NFP)

Term. of Parent-Child Rel. of T.B., et al; M.B. & H.W. v. IDCS (NFP)

NFP criminal opinions today (16):

Johnny Baker v. State of Indiana (NFP)

Carlos DeShawn Pack v. State of Indiana (NFP)

Eric Tate v. State of Indiana (NFP)

Cassidy Miller v. State of Indiana (NFP)

Vance W. Carter v. State of Indiana (NFP)

Troy Riggs v. State of Indiana (NFP)

Christopher Yakim v. State of Indiana (NFP)

Joseph D. Blair v. State of Indiana (NFP)

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

Tony Branch v. State of Indiana (NFP)

Jabbar L. Davis v. State of Indiana (NFP)

Ivory Johnson v. State of Indiana (NFP)

Adam A. Jenkins v. State of Indiana (NFP)

Curtis Outlaw v. State of Indiana (NFP)

Christian Hollinsworth v. State of Indiana (NFP)

Kenneth France v. State of Indiana (NFP)

Posted by Marcia Oddi on November 30, 2009 12:25 PM
Posted to Ind. App.Ct. Decisions

Courts - Two bankruptcy cases before SCOTUS on Tuesday

Per the entry "This Week at the Court" from SCOTUSBlog today, two cases the ILB has been covering are sceduled for oral argument Tuesday:

Milavetz, Gallop & Milavetz v. United States; United States v. Milavetz, Gallop, & Milavetz (08-1119; 08-1225) — Congress’s power to bar attorneys from advising debtors to take on more debt before filing for bankruptcy -- this is the “debt relief agency” issue.

United Student Aid Funds, Inc. v. Espinosa (08-1134) — standard for forgiving student loan debt in bankruptcy

Posted by Marcia Oddi on November 30, 2009 09:53 AM
Posted to Courts in general

Courts - Continuing with: "Judges In Pa. Corruption Case Likely to Evade Civil Charges" Indiana case mentioned [Updated]

Updating this ILB entry from Nov. 23rd, David Post of The Volokh Conspiracy had an interesting post on Nov. 28th, headed "Are Judges Really Immune when Taking Kickbacks?"

Somewhat related is this Nov. 30th National Law Journal story by Mike Scarcella, headed "Lawyer for [Federal] Prosecutor Seeks Supreme Court Review of Immunity Ruling." It begins:

Federal prosecutor Daniel Zachem has a lot riding on a pro se civil suit against him that alleges he participated in a conspiracy to violate the rights of a D.C. Superior Court grand juror.

But the suit has far-reaching implications for all federal prosecutors, and so Zachem's lawyer wants the U.S. Supreme Court to pick up the case and reverse an appellate ruling this year that narrowed the scope of prosecution immunity from suit.

[Updated at 10:36 AM] See the WSJ Law Blog's just-posted entry by Ashby Jones headed "The Pa. Judicial Scandal: A Closer Look at the Victims."

Posted by Marcia Oddi on November 30, 2009 09:47 AM
Posted to Courts in general

Ind. Decisions - Cass County "Judge OKs city to perform environmental studies on land for trail extension"

Kevin Lilly reports today in the Logansport Pharos-Tribune:

A local judge has ruled that the freight railcar restoration company that owns land the city desires for a trail extension must allow access to the property for environmental studies.

Last week, Cass Superior Court Judge Thomas Perrone decided the city has the right to enter the property of Transco Railcar, located on the north bank of the Wabash River at 18th Street, for the purpose of determining levels of soil contamination before exercising the power of eminent domain to acquire the 5.44 acres of land needed to extend the Little Turtle Waterway.

Transco had been refusing the city access to their property. Instead, they suggested mediation as a way to get “fair compensation” for the land without litigation.

According to Mercedes Brugh, chairman of the Little Turtle Waterway Corp., the environmental studies would assist in formulating an offer to Transco for their strip of land between 12th and 18th streets.

Neither side was able to come to an agreement before the city filed the complaint in August.

Judge Perrone had the matter under advisement since hearing arguments from both sides in October.

The issue was whether the city had the right to conduct the environmental studies before enacting the power of eminent domain. Jim Brugh, Mercedes’ husband and the city’s attorney in the case, cited legal authority indicating the city and its environmental consultant could access Transco’s land.

Transco, which is represented by the law firm of Starr, Austen & Miller, argued that the city did not have such authority, according to court documents.

Judge Perrone ruled in favor of the city. He found that state law regarding eminent domain allows entry to the land in question for “examination and survey of the property” as long as the environmental assessments would not substantially interfere with the owners’ “use and enjoyment of the property.”

The city is facing a deadline that is part of the $150,000 federal grant for the 1.1-mile trail extension. In 2007, the Logansport Parks Department secured the grant. Under its terms, construction has to be finished by November 2011.

According to past reports from parks administrator Janet Fawley, construction is expected to begin in the spring and wrap up in 2010. Mercedes Brugh shared that position.

“I am optimistic that we will be able to come to agreement and soon begin work on that very beautiful section of the Wabash River,” she wrote in an e-mailed statement.

The extension is part of the city’s plan for more trails. The Eel River Run Trail is a proposed 2.4-mile pathway that would eventually connect Little Turtle Waterway to the existing River Bluff Trail and Riverside Park across the Eel River. That project calls for installing bridges over the Eel River at Riverside Park and beside the railroad bridge near Front Street. It is being made possible by a $1 million grant and a local match by Cole Hardwood owner Milt Cole.

Posted by Marcia Oddi on November 30, 2009 09:39 AM
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Gambling panel's findings are near: No bills planned for 2010 session"

That is the headline to this story today by Lesley Stedman Weidenbener of the Louisville Courier Journal.

Posted by Marcia Oddi on November 30, 2009 09:34 AM
Posted to Indiana Government

Ind. Law - More on "Grappling with Meth in Elkhart County"

Updating yesterday's ILB entry highlighting the five-part series, today's part 2 story, reported by Emily Monacelli, is headed "Grappling With Meth: Local landlords, property owners foot the bill for cleanup." Some quotes from the long story:

When local police find what they believe is a meth lab, they call the Indiana State Police's clandestine lab team to remove the chemicals, which they usually find in a jar or bottle. The county health department posts the property unfit for human habitation and gives the homeowner a list of qualified inspectors. The homeowner does not have a time limit in which they must clean the property, but it must pass testing with minimal residue before people can live there again. Exposure to meth making chemicals can cause resipratory problems, dizziness, headaches, confusion and nausea, according to officials with the Elkhart County Health Department.

In Elkhart County, 35 buildings that formerly contained meth labs still have not been cleaned and deemed fit for occupation, according to records kept by the Elkhart County Health Department and obtained by The Elkhart Truth. The Indiana Department of Environmental Management mandated counties start monitoring meth lab sites in 2007. Of those sites in Elkhart County that hven't been cleaned, 33 were houses or apartments. One was an empty commercial building. One was a car repair shop that's been out of business since the bust there in 2008.

Since 2007, 40 sites -- mostly houses -- that formerly contained meth labs have been cleaned by homeowners, including Simpson's land.

"We were responsible, you know, my land," Simpson said. "We were responsible for getting it cleaned up. Between my son and me it was $5,000 or $6,000 to get it cleaned up. That's why I'm kind of taking my time on the second one. Money only goes so far. I'm on a fixed income."

Once a health department employee notifies the homeowner of the meth lab, the health department has no further means of enforcement, according to Tara Still, an environmentalist with the health department.

"It's up to the property owner on how quickly or how slowly or if anything gets done at all," Still said. "The property can sit vacant indefinitely."

And they do, especially if the property owner doesn't have the $10,000 to $30,000 it takes to clean a house, as estimated by the health department.

Posted by Marcia Oddi on November 30, 2009 09:27 AM
Posted to Indiana Law

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

The feature - "What did you miss over the weekend?" this week covers 4.5 days:

From Sunday, Nov. 29, 2009:

• Law - "California's Jessica’s Law too vague to enforce? Most local offenders too close to schools, parks"
• Ind. Law - "Grappling with Meth in Elkhart County;" Basketball in Medora
• Ind. Gov't. - "Lean times pressure Indiana's lawmakers Excess is out, pinching pennies is in"
• Ind. Law - "State turns consumers into syngas patsies"
• Law - "Ambassador to Costa Rica: Who is Anne Slaughter Andrew?"
• Ind. Decisions - 7th Circuit's "Gun ruling reversal tests domestic violence law "
• Ind. Gov't. - More on "Ex-Town of Chesterfield Employees Accused Of Siphoning Town Funds "

From Saturday, Nov. 28, 2009:

• Courts - "When Prisoners Phone Home "
• Law - "So here's what free speech has come to on campus"
• Ind. Courts - "Clerk unplugging computers: Staff cut ending free public access"
• Ind. Courts - Public defenders are threatened with cuts in several Indiana counties

From Friday, Nov. 27, 2009:

• Courts - "State Courts at the Tipping Point "
• Law - How to use the new Google Scholar legal search options; the demise of courthouse libraries
• Environment - "Cost of coal-gasification plant reaches $2.5 billion; the estimate so far doesn't include the potential costs for developing technology to capture and store carbon dioxide emitted by the plant"

From Thanksgiving Day, Thursday, Nov. 26, 2009:

• Law - Marriage between first cousins permitted in many states; what about Indiana?
• Law - Answers about divorce and money
• Ind. Decisions - Supreme Court issues order accepting certified question re corporation directors
• Ind. Courts - Daniels fills a three-month vacancy on Tipton City Court

From Wednesday afternoon, Nov. 25, 2009

• Ind. Courts - "1st educational neglect cases seen in Allen County: The two women claimed to be home schooling their sons" [Updated]
• Ind. Decisions - "Denial of racial harassment claim affirmed: Annual mistreatment at party too infrequent"
• Courts - "First Amendment No Shield for Debt Collectors Gone Bad, Alaska Supreme Court Says"
• Ind. Courts - More on: "Indianapolis Courts, City dedicate $2 Million to Clear Backlog of Cases for Children in Need of Court Appointed Special Advocates"
• Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

Posted by Marcia Oddi on November 30, 2009 08:52 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 11/30/09):

Thursday, December 3rd

• 9:00 AM - Luis Duran v. State of Indiana - The Lake Superior Court denied Duran's pre-trial motion to suppress evidence obtained after police entered Duran's apartment without a warrant. The Court of Appeals affirmed in Duran v. State, 909 N.E. 2d 1101 (Ind. Ct. App. 7/23/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [ILB summary of the 2-1 COA opinion here - 6th case.]

• 9:45 AM - State of Indiana v. Robert Richardson - The Marion Superior Court granted Richardson's motion to suppress evidence obtained during a traffic stop. The Court of Appeals reversed in State v. Richardson, 906 N.E.2d 263 (Ind. Ct. App. 5/22/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [ILB summary here, 2nd case.]

• 10:30 AM - Kenneth Collins v. State of Indiana - On the State's motion filed ten years after the original sentencing, the Marion Superior Court imposed additional conditions to the terms of Collins' probation. The Court of Appeals affirmed in Collins v. State, 911 N.E.2d 700 (Ind. Ct. App. 8/21/2009). Collins has petitioned the Supreme Court to accept jurisdiction over the appeal [ILB summary here, 7th case.]

Next week's oral arguments before the Supreme Court (week of 12/7/09):

Next Thursday, December 10th

• 9:00 AM - Myron Owens v. State of Indiana - The Marion Superior Court sentenced Owens as an habitual offender after concluding he had accumulated two unrelated dealing convictions as defined in Indiana Code section 35-50-2--8(d), namely dealing in cocaine and conspiracy to deal in cocaine. The Court of Appeals affirmed in Owens v. State, 911 N.E.2d 18 (Ind. Ct. App. 7/7/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [ILB summary of the 2-1 COA opinion here - 6th case. A quote: "The State presented sufficient evidence to establish that Owens delivered cocaine to the C.I. and that such transaction occurred within 1,000 feet of the Daycare Center."]

• 9:45 AM - Clint R. Beldon v. State of Indiana - Beldon was convicted of operating a motor vehicle while intoxicated, which had been elevated to a class D felony based on a prior conviction, and he was sentenced by the Kosciusko Superior Court as a habitual substance offender under Indiana Code section 35-50-2-10, to the maximum sentence. The Court of Appeals affirmed the conviction, but remanded the case for re-sentencing. Beldon v. State, 906 N.E. 2d 895 (Ind. 5/21/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [See the May 21st ILB summary of the COA opinion here - 4th case.]

• 10:30 AM - Leone v. Commissioner Indiana Bureau of Motor Vehicles - A class of persons, threatened with invalidation of their driver's licenses or identification cards due to a discrepancy with their names on file with the Social Security Administration and the Bureau of Motor Vehicles, sought injunctive relief against the Bureau. On interlocutory appeal, the Court of Appeals affirmed the trial court's denial of a preliminary injunction, holding in part that the Bureau's policy violated the class members' procedural due process rights but that an injunction would not be in the public interest. Leone v. Comm'r, Indiana Bureau of Motor Vehicles, 906 N.E.2d 172 (Ind. Ct. App. 5/15/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [See this ILB entry from Oct. 30, 2009 for backgtround.]

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 11/30/09):

Monday, November 30th

• 10:30 AM - International Brotherhood of Electrical Workers, Local Union 1395, et al v. Indianapolis Power and Light Company (93A02-0906-EX-498) - In a 1995 settlement Indianapolis Power and Light (IPL) obtained a rate increase, part of which would fund a trust for non-pension retiree benefits. IPL continued to fund the trust for six years. When IPL was acquired by another company, it curtailed its funding of the trust and the employee benefits were cut, but it continued charging pursuant to the rate increase settlement. The Utility Regulatory Commission decided the terms of the settlement did not require continued funding, and on appeal, the IBEW and IPL dispute the effect of the language in the settlement. The Scheduled Panel Members are: Judges May, Crone and Brown. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Wednesday, December 2nd

• 10:30 AM - Three Little Birds, LLC., vs. Stone Manor Investment, et al (71A05-0904-CV-187) - Whether the trial court ruled that Stone Manor Investment has an implied easement by necessity for certain alleged encroachments. The Scheduled Panel Members are: Chief Judge Baker, Judges Bailey and Robb. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

• 1:30 PM - Fifth Third Bank, et al v. Kohl's Indiana, L.P., et al (82A01-0906-CV-272) - Fifth Third Bank appeals from the trial court's grant of partial summary judgment to Kohl's. In its complaint, Kohl's sought, in relevant part, to compel the Evansville-Vanderburgh Area Plan Commission to draw on letters of credit issued by Fifth Third Bank for payment to Kohl's. On appeal, the parties dispute the trial court's determination on summary judgment that: 1) the letters of credit should be treated as performance bonds, and 2) that Kohl's may make a claim against the proceeds from the letters of credit as a third-party beneficiary. The Scheduled Panel Members are: Judges Najam, Kirsch and Barnes. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Thursday, December 3rd

• 10:00 AM - Jennifer Mogg v. State of Indiana (29A04-0902-CR-82) - Jennifer Mogg appeals the trial court's order revoking her probation and suspended sentence. Mogg raises the single issue whether reliable evidence supports the trial court's finding she consumed alcohol in violation of her probation, when the sole evidence of her consumption was positive readings from the Secure Continuous Remote Alcohol Monitoring (SCRAM) device. The Scheduled Panel Members are: Judges Darden, Robb and Mathias. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 12/7/09):

Next Tuesday, December 8th

• 11:00 AM - Marcus Chest v. State of Indiana (49A02-0907-CR-705) - An Indianapolis Metropolitan police officer pulled over Marcus Chest after observing him change lanes without signaling. When asked for identification, Chest claimed he had forgotten his driver's license and gave the officer a false name and date of birth. After discovering the information was false, the officer arrested Chest for refusing to provide identification and secured Chest in the backseat of his police car. The officer returned to search Chest's vehicle and discovered a handgun and a wallet containing Chest's driver's license under the back seat of the car. After a trial, Chest was convicted of carrying a handgun without a license, driving while suspended, and refusing to provide identification. On appeal, Chest argues the officer's search of his vehicle after he was secured in the police car violated his constitutional rights under the United States and Indiana Constitutions, and therefore, the trial court should not have allowed the State to admit the handgun and wallet discovered in the search into evidence. The Scheduled Panel Members are: Judges Darden, Robb and Mathias. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Next Wednesday, December 9th

• 1:30 PM - Herman Russell v. State of Indiana (49A04-0902-CR-97) - Herman Russell appeals his conviction following a bench trial for theft as a Class D felony. On appeal, he contends that the State's evidence-that Russell lacked a receipt for the DVDs he carried outside a store-was insufficient to prove the "unauthorized control" necessary to establish theft as charged. Russell next contends that the trial court erred as a matter of law in basing his conviction on a finding that he was "more likely than not" guilty. Finally, Russell argues that the trial court committed fundamental error when it admitted evidence (1) obtained from Russell during a search incident to an alleged unlawful arrest and (2) concerning Russell's prior theft convictions. The Scheduled Panel Members are: Judges Najam, Kirsch and Barnes. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Next Thursday, December 10th

• 1:30 AM - Allied Property & Casualty Insurance Company v. Linda & Randall Good (85A04-0902-CV-89) - On the fourth day of a jury trial in an insurance case stemming from a fire at Linda and Randall Good's house, on direct examination an employee of Allied Property and Casualty Insurance Company testified in violation of the trial court's order in limine. The trial court granted a mistrial and ordered Allied Property and Casualty to pay Linda's and Randall's attorneys' fees as well as the costs of the jury trial, which totaled $26, 053.19. Allied Property and Casualty now seeks an interlocutory appeal contending that the trial court abused its discretion in imposing monetary sanctions for causing the mistrial. The Scheduled Panel Members are: Judges Vaidik, Darden and Bradford. [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.

Posted by Marcia Oddi on November 30, 2009 08:49 AM
Posted to Upcoming Oral Arguments

Sunday, November 29, 2009

Law - "California's Jessica’s Law too vague to enforce? Most local offenders too close to schools, parks"

A story today by Denise Zapata and Kevin Crowe from San Diego's Union-Tribune includes this overview:

Background: One of the aspects of Jessica’s Law, which California voters passed in 2006, limits where registered sex offenders can live.

What’s happening: The law is rarely enforced because of a legal challenge, funding shortages and its vague provisions. Meanwhile, at least 70 percent of offenders in San Diego County live in restricted areas.

What’s next: The California Supreme Court is expected to rule on a case challenging residency limits in February.

The story itself begins:

More than 70 percent of registered sex offenders in San Diego County are violating a state law by living too close to schools and parks.

Jessica’s Law, which was approved by California voters in November 2006, toughened sanctions against sex offenders and bars them from living within 2,000 feet of a school or park. In San Diego County, 1,266 of 1,731 offenders whose addresses are made public by the state live in those restricted zones, according to an analysis by the Watchdog Institute, a nonprofit investigative journalism unit based at San Diego State University.

That finding surprises virtually no one in law enforcement. They say the law is vague and has holes, making it nearly impossible to enforce.

For example, the law doesn’t specify whether residence restrictions apply to all convicted sex offenders or only to those who were convicted or paroled after it passed. There are no penalties for violating the restrictions.

Posted by Marcia Oddi on November 29, 2009 04:14 PM
Posted to General Law Related

Ind. Law - "Grappling with Meth in Elkhart County;" Basketball in Medora

From today's Elkhart Truth:

Journalists from The Elkhart Truth and msnbc.com have spent the last several months exploring how methamphetamine is affecting Elkhart County.

“Grappling With Meth” is a five-part series, along with accompanying photos and online videos, that is the result of their work. Methamphetamine, a more potent form of amphetamine, is a highly addictive drug made using chemicals such as anhydrous ammonia, pseudoephedrine, fertilizers and drain cleaner.

The high from meth can last more than 24 hours and is followed by a severe crash, where the user may “tweak” or experience “meth psychosis,” which is similar to schizophrenia.

Long-term effects include malnutrition, organ damage, permanent psychological problems, stroke and death.

In 2008, Elkhart County ranked second in the state for the most reported meth labs, with 65 labs tallied, according to the Indiana State Police.

Noble County topped the state with 80 labs reported that year.

Through September 2009, Elkhart County was leading the state in the number of meth labs reported, with 79 reported, according to state police.

The five parts are:

• Sunday: Overview - Elkhart County initially got Mexican meth, but much of it is now made in local labs. Meth labs have become a common occurrence in Elkhart County.

• Monday: Environment - Making meth is a messy business and landlords are often left to clean up an apartment where a lab was, or walk away from a damaged property.

• Tuesday: Family impact - Meth is incredible addictive and often scars its users and their families.

• Wednesday: Fighting in tough times - A look at meth use in Elkhart County in relation to economics and its use elsewhere.

• Thursday: Treatment - Elkhart County may not have enough treatment options for addicts.

From the Saturday NY Times, a long story headed "In Rural Indiana Town, Even Basketball Suffers," reported by John Branch, that begins:

MEDORA, Ind. — Players for Medora High School have taken the court wearing work boots because their families cannot afford basketball shoes. Most smoke cigarettes. Some talk openly of drug use. All but a few come from broken homes.

Medora Hornets Coach Marty Young, left, went 0-22 in his first year. The 23-year-old coach is not expecting many more, if any, victories this season. * * *

Now 23, Young is not expecting many, if any, on-court victories during the season that starts on Saturday, either. But he counts wins and losses differently from most. “If they’re in the gym these two hours, then I know they’re not in trouble,” Young said.

Poverty rates are high here, college graduates few. Drug use is rampant, several said, and many residents live in ramshackle trailer homes strewn about the hills that surround the checkerboard streets of the town. In these depressed times, there is little to cheer but the high school basketball team.

Posted by Marcia Oddi on November 29, 2009 01:00 PM
Posted to Indiana Law

Ind. Gov't. - "Lean times pressure Indiana's lawmakers Excess is out, pinching pennies is in"

That is the headline to this story today by Ed Bradner of the Evansville Courier & Press, that begins:

INDIANAPOLIS — As the 2010 session of the Indiana General Assembly approaches, state lawmakers are feeling pressure to practice a brand of politics that respects the country's economic woes.

Feeling the weight of the economic downturn, Hoosiers have grown more frugal. It's why Indiana's sales tax revenue is sagging: Excess is out and pinching pennies is in.

A similar story exists in politics. Voters who are watching their own families' budgets like hawks are demanding that kind of accountability from the politicians who represent them.

In the past, with the critical 2010 elections looming and with control of the General Assembly equaling control of redistricting in 2011, the focus of the upcoming session would have been politics.

This year, though, lawmakers on both sides of the aisle readily admit there won't be much patience for political posturing when they head back to the Statehouse in January.

That's why Democrats and Republicans who in the past have resisted such changes now are embracing proposals to limit lobbying largesse and crack down on gerrymandering.

Most telling are the issues lawmakers have chosen to get early starts on by holding December hearings. Both Democrats and Republicans are using the month to debate issues that draw contrast between the two parties.

Posted by Marcia Oddi on November 29, 2009 12:56 PM
Posted to Indiana Government

Ind. Law - "State turns consumers into syngas patsies"

Updating this ILB entry from Nov. 25th headed "Still more on: Governor signs first bill of 2009 session," about a company called Indiana Gasification LLC and its project, voted into law, to manufacture synthetic natural gas from coal for Indiana's consumers, rather than buying actual natural gas, The Bloomington Alternative has an opinion piece today by John Blair of Evansville, headed "State turns consumers into syngas patsies."

Posted by Marcia Oddi on November 29, 2009 12:49 PM
Posted to Indiana Law

Law - "Ambassador to Costa Rica: Who is Anne Slaughter Andrew?"

Updating this ILB entry from Oct. 16th headed "Obama Picks Another Ambassador From Big Law", AllGov has a story today headed "Ambassador to Costa Rica: Who is Anne Slaughter Andrew?" Access it here.

Posted by Marcia Oddi on November 29, 2009 12:44 PM
Posted to General Law Related

Ind. Decisions - 7th Circuit's "Gun ruling reversal tests domestic violence law "

The 7th Circuit's decision Nov. 18th in the case of U.S. v. Skoien (WD Wis.), which the ILB blogged here at the time because of this conclusion:

The government has the burden of establishing a reasonable fit between its important interest in reducing domestic gun violence and the means chosen to advance that interest—§ 922(g)(9)’s total disarmament of domestic-violence misdemeanants. Accordingly, we vacate Skoien’s conviction and remand for further proceedings consistent with this opinion. If the government successfully discharges its burden, the district court shall reinstate Skoien’s conviction.

is the subject of an important Nov. 27th story by Bruce Vielmetti of the Milwaukee Journal Sentinel:

A Rock County man sentenced to two years in federal prison for shooting a deer while he was on probation for domestic violence has had his case overturned by a federal appeals court.

The case could have far-ranging impact in the gun-rights debate. For Steve Skoien, it meant he'll be home for the holidays.

The 7th Circuit Court of Appeals in Chicago ruled earlier this month that, in light of a major Supreme Court ruling about individual gun rights last year, prosecutors need to show that a lifetime ban on gun ownership for those convicted of domestic violence has a reasonable connection to reducing domestic gun violence. That 1996 law, the appeals court found, should not be grouped with other "presumptively legal" firearm restrictions mentioned in the 2008 Supreme Court case, known as District of Columbia vs. Heller.

The opinion by Judge Diane Sykes says that Heller's "reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights."

And so Skoien's conviction was reversed and his case sent back to Madison so prosecutors can try to meet that burden. On Wednesday, a judge ordered his release from federal prison in North Carolina, where he had been assigned to serve his sentence.

Skoien, 30, was convicted of misdemeanor domestic violence in 2006 and sentenced to probation. In 2007, probation agents learned Skoien had gotten a gun deer license. They went by his house and found a shotgun in his pickup. He admitted he'd used it to shoot a deer that morning. In fact, the carcass was in his garage.

A federal grand jury indicted Skoien for violation of a 1996 federal law that prohibits anyone convicted of domestic violence from ever possessing guns for any reason, often referred to as the Lautenberg Amendment. Skoien entered a conditional guilty plea, was sentenced to two years in prison and appealed.

From the beginning, Skoien argued that applying the federal law in his situation violated his 2nd Amendment right to possess a gun for hunting. U.S. District Judge Barbara Crabb denied a motion to dismiss, and a second motion made after the Heller ruling. That case found that the 2nd Amendment guarantees individual rights to have guns for self-defense, and that the total handgun ban in Washington, D.C., was therefore unconstitutional.

But the Heller court also said it wasn't trying to undo the many "presumptively lawful" gun regulations, such as those prohibiting felons and the mentally ill from having guns, or restricting guns from certain places.

While Crabb thought the ban on guns for people convicted of misdemeanor domestic violence obviously fit the same category, Sykes found that conclusion premature.

"We take all this to mean that gun laws - other than those like the categorically invalid one in Heller itself - must be independently justified," Sykes wrote after discussing aspects of the Heller ruling.

Sykes explains that an intermediate level of review should apply. In other words, the government would need to show more than just a rational basis for the law, but not have to meet the very high standard known as strict scrutiny.

Preventing domestic gun violence certainly qualified as an important government interest. But the government must still show a law that perpetually bans someone convicted of domestic violence from ever having a gun is a reasonable means to that end. Sykes said the government didn't make enough of a record on that question, and sent the case back.

"If the government successfully discharges its burden, the district court shall reinstate Skoien's conviction," Sykes wrote.

Posted by Marcia Oddi on November 29, 2009 10:11 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - More on "Ex-Town of Chesterfield Employees Accused Of Siphoning Town Funds " [Updated]

Updating this ILB entry from Nov. 24th, Keith Roysdon of the Muncie Star-Press has a long story today headlined "Chesterfield is buzzing over missing money, resigned officials." Some quotes:

CHESTERFIELD -- Balanced on the line between Delaware and Madison counties like a tightrope walker, Chesterfield once had a wild reputation for its anything-goes taverns and fabled massage parlors on the outskirts of town.

For most of the last decade, however -- since the longtime town marshal got busted in a ticket-fixing scam -- Chesterfield has been as quiet as the famed spiritualist camp that bears the town's name.

But there's a noticeable buzz in the town of less than 3,000 people about Chesterfield's latest scandal, one that prompted the abrupt resignations of the town's top cop and clerk-treasurer amid reports of the theft of more than $250,000 of the town's money.

No criminal charges have yet been lodged, but a lawsuit filed last week by Indiana Attorney General Greg Zoeller alleges Clerk-treasurer Christopher Parrish, town Marshal James Kimm and three other now-former town employees stole municipal funds by submitting bogus claims for work-related trips that were never taken, vehicle repairs that were never made and building repairs that were never completed.

"The claim that the town's former top fiscal officer and the town's former police chief hatched a scheme to defraud the taxpayers who employed them appears to be the ultimate betrayal of the public's trust," Zoeller said after filing the suit in a Madison County court.

Town officials are startled by the amount of money allegedly stolen - $259,535.91, to be exact.

"I couldn't believe it," said veteran Chesterfield police officer Robert Stewart, named interim town marshal after Kimm resigned in September. "I didn't think the town had that much money to spend."

[Updated 12/1/09] Today's Muncie Star-Press has a story headed "Two fired employees say they've won their Chesterfield jobs back."

Posted by Marcia Oddi on November 29, 2009 10:05 AM
Posted to Indiana Government

Saturday, November 28, 2009

Courts - "When Prisoners Phone Home "

From an editorial today in the NY Times:

New York State’s highest court has rejected the last vestiges of a lawsuit by families of inmates who claimed that the prison system overcharged them for telephone calls from their loved ones. The good news is that this suit — and an accompanying lobbying effort — has already succeeded in reforming a terribly unfair system.

New York, like many states, used the phones in its prisons as a profit center. MCI, which provided the phone service, agreed to pay the prison system 57.5 percent of the fees it charged for prisoners’ collect calls. The state then allowed MCI to charge outrageously high rates: 16 cents or more a minute plus a $3 surcharge for every call. Families paid as much as $300 to $400 a month, according to one advocacy group.

The Center for Constitutional Rights, a public interest legal organization, and prisoners’ families sued in 2004, charging that the exorbitant rates were unconstitutional. The suit rightly embarrassed New York politicians. In January 2007, Eliot Spitzer, the state’s newly elected governor, announced that rates would be substantially lowered. The Legislature later made it illegal for the Department of Correctional Services to accept revenue in excess of its reasonable costs for operating an inmate phone system.

What was left for the New York State Court of Appeals to decide was whether family members were due refunds. They contended that the excessive fees were an illegal tax that violated inmates’ equal protection rights. This week, the court, by a 5-to-1 vote, rejected the suit.

The decision is regrettable. But even the majority noted that the plaintiffs had strong arguments that the high rates were bad policy because they made it difficult for inmates to maintain family and community ties, and that released prisoners who lack these ties are more likely to return to a life of crime.

Posted by Marcia Oddi on November 28, 2009 12:54 PM
Posted to Courts in general

Law - "So here's what free speech has come to on campus"

The ILB has had a number of entries under the heading "'Harsh Words Die Hard on the Web': Students at Yale Law and Indiana University Feel Effects of Anonymous Attacks."

Well, Indiana University (among others) is in the news again. Here is the beginning of a story in the Dec. 7th Time Magazine, by Sophia Yan, headed "Anonymous Gossip Sites."

So here's what free speech has come to on campus: "Name the freshman sluts!" an anonymous post demands on the Indiana University page of a multischool gossip site. So-and-so "has herpes!" proclaims an unsigned post on Texas Christian University's page. Among the profundities on the University of Alabama page: "Frats=fags."

Horny guys, lowbrow debates and run-of-the-mill spam all seem to be in abundant supply on CollegeACB.com (the acronym stands for Anonymous Confession Board). But what sets this site--and others like it--apart from the coarse commentary found on YouTube or, for that matter, a political blog are the personal attacks against private citizens, often with last names included, that leave victims with little recourse aside from demanding that the anonymous comments be taken down.

What used to be whispered on campuses is now broadcast, in the most cowardly way, for anyone with an Internet connection to see. Beverly Low, dean of first-year students at Colgate University, describes the phenomenon as an "electronic bathroom wall." The posts--which are often suffused with racism, sexism and homophobia--can be so vicious and juvenile that Ben Lieber, dean of students at Amherst College, likens them to "the worst of junior high."

And yet even the most élite universities are struggling with the problem of anonymous gossip sites. Some sites are homegrown and deal only with one school. Others are sprawling entities, catering to hundreds of schools and offering features like search capability and, at one enterprising site, the option to vote on how truthful an anonymous post is.

See also this Nov. 2 story in the St. Peterburg Times.

Thanks to this item at SlashDot.com for the links.

Posted by Marcia Oddi on November 28, 2009 12:02 PM
Posted to General Law Related

Ind. Courts - "Clerk unplugging computers: Staff cut ending free public access"

Supplementing yesterday's ILB entry on the demise of courthouse libraries is this story today in the Evansville Courier & Press, reported by Thomas B. Langhorne. Some quotes:

In about a month, a work force reduction will compel the Vanderburgh County Clerk's Office to close its library of six free public-access computers used for looking up case information.

It's one slice in local government services to the public — a loss, although not a crippling loss. But it might be just a hint of what's to come.

"The library's busy all day long," County Clerk Susan Kirk said.

"People come up because they can't remember their case numbers, or they want to look up (civil and criminal, excluding juvenile) cases, and it's heavily used by abstracters who work for title companies."

Kirk says she is forced to close the library to move the employee who supervises it over to replace a small-claims clerk who left her 54-person staff in October. That open position, she said, has proved indispensable.

"The library is something we've done for the public and the abstracters, and we're not going to be able to do it anymore," she said.

After the library closes, individuals seeking the data it offered will have to make requests in writing and, by state law, wait as long as seven days to receive the requested information.

Kirk hopes to move two of her computers into another courts system office, but it's not yet clear whether that will be technologically feasible.

The library closing is necessary, she says, because the County Council declined to authorize her to fill the vacant small-claims clerk position under the county's hiring freeze when she asked for permission in October.

Posted by Marcia Oddi on November 28, 2009 11:33 AM
Posted to Indiana Courts

Ind. Courts - Public defenders are threatened with cuts in several Indiana counties

"Clark budget cuts threaten public defender's office" is the headline of this Nov. 27 story by Ben Zion Hershberg in the Louisville Courier Journal. Some quotes:

A 30 percent budget cut ordered by the Clark County Council for next year could leave the public defender’s office with only half of its part-time lawyers.

“Nothing like this has happened before,” said Jeff Stonebraker, the county’s chief public defender. Budget problems in earlier years “have not even been close” to next year’s expectations, he said.

Clark Circuit Judge Dan Moore, in a memorandum to the council on Nov. 4, said too few public defenders could create serious delays that might lead to crowding at the county jail or even violate state or federal requirements for timely court action.

But Dave Abbott, president of the County Council, said, “Our hands are tied.” * * *

Stonebraker and two administrative assistants make up his office’s full-time staff, and the bulk of cases are handled by 10 lawyers who have private practices but work part-time for the public defender, earning from $23,000 to $31,870 a year.

A 30 percent budget cut ordered by the Clark County Council for next year could leave the public defender’s office with only half of its part-time lawyers.

“Nothing like this has happened before,” said Jeff Stonebraker, the county’s chief public defender. Budget problems in earlier years “have not even been close” to next year’s expectations, he said.

Clark Circuit Judge Dan Moore, in a memorandum to the council on Nov. 4, said too few public defenders could create serious delays that might lead to crowding at the county jail or even violate state or federal requirements for timely court action.

But Dave Abbott, president of the County Council, said, “Our hands are tied.”

State finance officials told the county that its 2010 budget approved this fall would exceed tax revenue by up to $6 million, Abbott said Friday.

Since the cuts were ordered last month, the heads of other county departments have said they’ll lay off at least 13 employees by Jan. 1 and eliminate at least eight other vacant positions. The county government has more than 300 employees.

Dan Eggerman, a consultant hired by county Auditor Keith Groth to analyze the budget problem, said in an Oct. 19 report that a large part of next year’s shortfall is rooted in the council’s 2007 decision to cut allowed 2008 property tax collections by 25 percent, a reduction that has forced officials since then spend down rainy day funds and other revenue sources.

A decision to eliminate a bridge replacement tax also hurt revenue, Eggerman said.

Stonebraker said other parts of the county’s judicial system won’t be affected by the cuts as much as the public defender’s office because it depends more heavily on general fund revenue to stay afloat than the courts or the prosecutor’s office, which get some money from probation fees and grants.

Stonebraker and two administrative assistants make up his office’s full-time staff, and the bulk of cases are handled by 10 lawyers who have private practices but work part-time for the public defender, earning from $23,000 to $31,870 a year.

“I have not been able to formulate a satisfactory plan which allows us to function effectively after implementation of the budget cut,” Stonebraker said in a report to the council. He said five part-time lawyers won’t be able to handle the caseload, but the only alternative to cutting the other five is to keep the office operating as it is until the money runs out around August and then close.

Abbott described the latter option as a threat and said he’ll ignore it. He said the council won’t give the public defender more money at this time even if Stonebraker decides to hold on to his current staff.

Abbott said he believes the county is doing more financially to defend accused criminals than victims. It’s possible, he said, that some suspects who now get public defenders by saying they’re indigent can be required to pay at least part of the cost of their lawyers.

Much like Judge Moore, Superior Court Judge Joseph Weber said he’s concerned about possible delays in handling court cases. But Weber said he doesn’t expect the courts to lose employees because of the budget cuts because they can use accumulated probation fees to pay staff.

Weber added, however, that probation fees will largely be gone by 2011.

"Lake public defenders are newest budget casualties" is the headline to this Nov. 26 story by Ruth Ann Krause in the Gary Post-Tribune. Some quotes:

Budget cuts have forced the elimination of seven positions in the Lake County public defender's office.

With the office handling about 70 percent of the 1,900 criminal cases filed annually, the cuts may mean the office will have to refuse new cases, Chief Public Defender David Schneider said Wednesday.

Three trial attorneys, John Davis, Kelly White Gibson and Catherine Lake, appellate public defender Paul Stanko, investigator Mike Brown and two secretaries will no longer have positions at the end of the year.

To close an estimated budget shortfall of $17 million in 2010, the Lake County Council this fall issued a mandate that each county department would reduce its payroll by 10 percent. All told, more than 100 employees stand to lose their jobs by year's end.

When the new year begins, the county public defenders office will have 17 trial attorneys, five appellate public defenders, and 15 contract attorneys working out of the conflicts division. Five contract attorney positions were eliminated. The conflicts attorneys represent individuals who are charged in multiple-defendant cases.

Lake, who has more than eight years with the office and 10 years' experience previously with the Lake County prosecutor's office, said she was not given a reason last week when she was told she was fired. Gibson and Davis, however, said they understood the cuts were a result of the Lake County Council's need to trim the budget. All three attorneys also maintain private practices.

Schneider said there have been numerous meetings in recent weeks as the office and the council grappled with where to make cuts.

The office currently is representing four defendants in time-consuming and complicated life-without-parole cases and more could be coming.

Diane Poulton, spokeswoman for Prosecutor Bernard Carter, said no decision has been made on whether life-without-parole sentencing requests will be filed on: * * *

Schneider said the entire public defender staff agreed to a 10-percent pay cut in an effort to retain all the positions. Last year, the office generated $1.4 million and cost taxpayers $1.1 million.

Gibson, who has six years with the office, who like Davis and Lake maintains a private practice, said she was told there was no seniority grid in the office. "I wasn't given a reason why I was chosen," she said, but indicated she was grateful for the opportunity to serve.

Davis, who has been with the office for about five years, plus three or four years as a contract attorney, said: "Afterwards we were told they (council) wanted bodies."

See also several related stories from the past week -- "Vanderburgh County Public Defenders caseload climbing" from Nov. 23rd and "Hammond Legal aid clinic sees a surge in demand," also from Nov. 23.

Posted by Marcia Oddi on November 28, 2009 10:39 AM
Posted to Indiana Courts

Friday, November 27, 2009

Courts - "State Courts at the Tipping Point "

That is the headline of a Nov. 24, 2009 editorial in the NY Times. Some quotes:

State courts are not just another government agency. They are at the center of the nation’s legal system and enforcement of the rule of law, handling more than 95 percent of all civil and criminal litigation. This vital institution — constitutionally, an independent, co-equal branch of government — has been spiraling into crisis as cash-starved states struggle with huge deficits. * * *

New Hampshire, for example, suspended civil and criminal jury trials in 8 of 10 county courts for one month each between last December and June. In California, state courthouses are closed for business on the third Wednesday of every month. Iowa is planning to close all state courts for several days before the state’s fiscal year ends on June 30.

More than two dozen states have imposed court hiring freezes, and 11 states have put staff on unpaid furloughs of varying length, according to the National Center for State Courts. Court staff, including clerks, court interpreters and security personnel, have been eliminated or reduced. In a financially driven loosening of security in Maine, for instance, magnetic security machines at local courthouses are no longer regularly manned. In Alabama, says the immediate past president of the Alabama Bar Association, Mark White, fiscally driven “compromises in service and security are creating a situation ripe for disaster.”

In Georgia, it can take 60 days to hold a hearing in a temporary custody case that used to take just a few weeks. In other states as well, spending cuts have led to fewer court dates available for hearing and trials, creating a growing backlog of cases. With priority given to serious criminal matters, there is a looming threat to the civil justice system, and its ability to vindicate people’s rights, and to foster economic growth and stability by enforcing business contracts in a timely manner.

The brunt of the budget cuts has fallen on the high-volume courts hearing family and juvenile matters, misdemeanors and small-claims disputes, notes the American Bar Association. Some of society’s most vulnerable people, including battered women, abused and neglected children and victims of vandalism and petty theft, turn to these courts for protection and justice.

There are factors apart from budget problems undermining the vitality of state courts, not least the advent of expensive judicial election and retention campaigns fueled by special interest money. And no one, including [Mass.] Chief Justice Marshall, suggests that state courts should be spared from having to share the burden at a time when cuts to health care and public education are under consideration in nearly every jurisdiction.

But, at some point, slashing state court financing jeopardizes something beyond basic fairness, public safety and even the rule of law. It weakens democracy itself.

Posted by Marcia Oddi on November 27, 2009 08:39 AM
Posted to Courts in general

Law - How to use the new Google Scholar legal search options; the demise of courthouse libraries

See this Nov. 17th entry from the Supreme Court of Texas Blog.

And for a story on how the combined impact of budget cuts and the availability (to some) of online research resources has impacted courthouse libraries, see this story by Douglas S. Malan of The Connecticut Law Tribune headed "The Final Chapter for Court Libraries? Budget crunch to force closure of six courthouse law libraries." From the story:

Law library funding issues were discussed several times over the course of the year, but in the end they were largely overshadowed by the Judicial Branch's decision to close three courthouses. Last week was the first time that also put a specific number on the number of libraries to be shuttered.

From the Judicial Branch's standpoint, those most affected will be self-represented parties, solo attorneys and small law firms that can't afford to pay the several hundreds, or sometimes thousands, of dollars needed to subscribe to online research programs like Westlaw and LexisNexis.

"From our perspective, it's a big deal," [Chief Court Administrator Judge Barbara Quinn] told the Connecticut Law Tribune last week. "Who it hits the hardest are self-represented parties who receive help from the librarians." * * *

One Stratford lawyer who didn't want to be identified said she regularly uses law libraries in Milford and Stamford. "Most libraries are pretty empty most of the time, which is why you might not be hearing the outrage" concerning closings, she said. "Most research is done online. However, the law libraries are an irreplaceable resource" for pro ses and lawyers who haven't paid for online research access.

Richard A. Roberts, president of the New Haven County Bar Association, said the libraries also are valuable for lawyers who want to quickly and cheaply brush up on types of cases that they don't normally handle. * * *

Massachusetts lawyer Robert J. Ambrogi, who blogs on technology and the law for the Connecticut Law Tribune's parent company ALM, agrees that there are resources available in a law library that just can't be accessed easily or inexpensively.

These include treatises outlining the basics of a certain area of law, along with continuing legal education materials.

"I'm the kind of guy that does everything online, but every so often, I'll go to the law library to find something that I can't get online," Ambrogi said. "The problem is a lot of lawyers who don't have access to technology or aren't as savvy are going to the law library."

This recalls Francesca Jarosz's Sept. 21st, 2009 story in the Indianapolis Star, headed "County library could be endangered legal resource." A quote:

Scott Vaughn hovered near a table covered with two thick law books and a binder full of court filing forms. He was trying to find the paperwork to start child custody proceedings. His deadline to file was approaching.

Next to him, librarian Zoya Golban flipped through the books to locate a reference that helped her find the proper form. She explained to Vaughn that he was a petitioner and pulled the paperwork to copy.

Similar interactions play out dozens of times a day at the Marion County Law Library. Located on the third floor of the City-County Building, it is one of the few places where litigants who represent themselves in civil court -- because they can't afford a lawyer -- can find guidance navigating the complex court system.

But it's a public service that may soon go away. Budget cuts could close the law library by the end of this year.

Court administrators say they've pared their costs so much that keeping the library open would force other court staff reductions or program cuts.

Posted by Marcia Oddi on November 27, 2009 08:19 AM
Posted to General Law Related

Environment - "Cost of coal-gasification plant reaches $2.5 billion; the estimate so far doesn't include the potential costs for developing technology to capture and store carbon dioxide emitted by the plant"

Supplementing this ILB entry from Nov. 25th is this story from Charles Wilson of the AP. Some quotes:

INDIANAPOLIS — Duke Energy says the cost of the coal-gasification power plant it's building in along the White River has risen another $150 million, boosting the project's estimated price to $2.5 billion — nearly twice the original estimate. And the latest increase won't be the project's last.

Charlotte, N.C.-based Duke Energy said in documents filed Tuesday with the Indiana Utility Regulatory Commission that the 630-megawatt plant's cost has gone up because its design has required more steel, piping, electric cable and other materials than originally expected.

“Because this is the first time this technology has been used on this scale, there was not nearly as much guidance on size and quantity as there would be for a typical project with a design that had been constructed many times,” Duke Energy Indiana President Jim Stanley said in a statement.

The plant is being built near Edwardsport, about 15 miles northeast of Vincennes. The plant will replace a 160-megawatt coal-fired facility that Duke operates there. The company said construction is about 28 percent complete.

Unlike traditional coal-fired power plants that burn coal to produce electricity, coal gasification converts coal into a synthetic gas that's processed to remove pollutants such as mercury and sulfur. That gas is then burned in a traditional turbine power plant to produce electricity.

Duke officials say the plant, slated to begin operation in 2013, stands to be the first in the nation to use coal gasification technology on such a large scale.

The company expects to provide another cost revision by March covering labor, engineering, procurement and plant startup costs. Duke spokeswoman Angeline Protogere said the utility would file for a rate adjustment to cover the increased cost then. * * *

The estimated cost of the plant has grown steadily since it was announced in 2007, when Duke said the plant would likely cost between $1.3 billion and $1.6 billion.

Kerwin Olson, program director for the Citizens Action Coalition of Indiana, said the group believed the original estimate was “way off” and had expected the cost to spiral.

Olson said he expects the Utility Regulatory Commission to approve the latest cost increase. But he said the watchdog group wants Duke Energy's case reopened and re-examined. “We don't think the plant is needed and we don't think the IURC is looking at the true cost of this facility,” he said. He said it would be cheaper to stop building the plant now than to complete and operate it.

The Office of Utility Consumer Counselor, which represents ratepayers before the Utility Regulatory Commission, has not reviewed the Duke filing. Anthony Swinger, a spokesman for the utility consumer counselor's office, said that could take several weeks.

“However, it does concern us that the utility is announcing expected cost increases for this project for the second time in less than a year,” Swinger said. “This comes despite Duke's previous expressions of confidence that the project could be completed under the previous revised cost estimate of $2.35 billion that was approved earlier this year.”

Duke noted that labor costs would be a key factor in the plant's final cost. But Olson said the estimate so far doesn't include the potential costs for developing technology to capture and store carbon dioxide emitted by the plant.

The commission already gave Duke approval to charge ratepayers $17 million to study the feasibility of carbon capture, and a request for $121 million for a geological study for underground carbon storage is pending.

Such emissions are blamed for global warming, and Congress is considering legislation that would set caps on the amount of carbon dioxide and other greenhouse gases power plants could emit. Olson said some studies show that carbon capture requirements could double the cost of a power plant.

Duke doesn't know how much capturing and storing carbon from the plant would cost, Protogere said. Duke has applied for a federal grant that could potentially cover up to half of those costs, she said.

Duke's Indiana customers have been expected to see about an 18 percent rate hike to pay for the project, which is receiving more than $460 million in government tax incentives. But that rate increase doesn't reflect the latest cost increases.

Posted by Marcia Oddi on November 27, 2009 08:00 AM
Posted to Environment

Thursday, November 26, 2009

Law - Marriage between first cousins permitted in many states; what about Indiana?

Some quotes from this long story by Sarah Kershaw in today's NY Times:

While many people have a story about a secret cousin crush or kiss, most Americans find the idea of cousins marrying and having children disturbing or even repulsive. The cartoonish image of hillbilly cousins giving birth to cross-eyed, deformed and mentally disabled children has endured in the national psyche. But even in the United States — one of the few countries in the world where such unions are illegal — marriage between first cousins may be slowly emerging from the shadows.

Although it is still a long way from being widely accepted, in recent years cousin marriage has been drawing increased attention, as researchers study the potential health risks to children of cousins. And the couples themselves have begun to connect online, largely through a Web site called Cousincouples.com, which bills itself as “the world’s primary resource for romantic relationships among cousins,” and is trying to build support for overturning laws prohibiting cousin marriage.

For the most part, scientists studying the phenomenon worldwide are finding evidence that the risk of birth defects and mortality is less significant than previously thought. A widely disseminated study published in The Journal of Genetic Counseling in 2002 said that the risk of serious genetic defects like spina bifida and cystic fibrosis in the children of first cousins indeed exists but that it is rather small, 1.7 to 2.8 percentage points higher than for children of unrelated parents, who face a 3 to 4 percent risk — or about the equivalent of that in children of women giving birth in their early 40s. The study also said the risk of mortality for children of first cousins was 4.4 percentage points higher.

More-recent studies suggest that the risks may be even lower. * * *

“It’s never as simple as people make it out to be,” said Dr. Bittles, noting that very early studies did not account for factors like access to prenatal health care, and did not distinguish between couples like Ms. Spring-Winters and her husband, the first cousins in a family to marry, and those who are part of groups in which the practice is common over generations and has led to high rates of genetic disorders. “But the widely accepted scare stories — even within academia — and the belief that cousin marriage is inevitably harmful have declined in the face of some of the data we’ve been producing,” he said.

Dr. Bittles, who is working on an update of the 2002 study, and other researchers argue that laws against marriage between cousins were rooted in myth and moral objections, and that they amounted to genetic discrimination akin to eugenics or forced sterilization. People with severe disorders like Huntington’s disease, who have a 50 percent chance of passing it on to their offspring, are not barred from marrying because of the risk of genetic defects, he said, so cousins should not be, either.

The story includes a link to a map showing states which prohibit and allow marriage between first cousins:

Marriage between first cousins is illegal in 25 states. It is allowed in the rest of the country, but seven states have conditions: five have minimum-age restrictions or require that one of the spouses not be able to have children; Maine requires a physician's certificate of genetic counseling; and North Carolina allows first cousins to marry but not double first cousins (the offspring of two siblings who marry two siblings).

Indiana is one of the "allowed with conditions" states. Here is Indiana's statute, IC 31-11-1-1:

Two (2) individuals may not marry each other if the individuals are more closely related than second cousins. However, two (2) individuals may marry each other if the individuals are:

(1) first cousins; and
(2) both at least sixty-five (65) years of age.

As added by P.L.1-1997, SEC.3.

Posted by Marcia Oddi on November 26, 2009 10:41 AM
Posted to General Law Related

Law - Answers about divorce and money

Following up on the earlier NYT columns (see Nov. 22nd ILB entry here) on "Financial Decisions to Make as You Divorce," the Times money blog, Bucks, has also had a 3-part set of questions and answers about divorce and money:

• Part 1 - Nov. 18, 2009

• Part 2 - Nov. 20, 2009

• Part 3 - Nov. 25, 2009

Remember, this is a NY-based column.

Posted by Marcia Oddi on November 26, 2009 09:23 AM
Posted to General Law Related

Ind. Decisions - Supreme Court issues order accepting certified question re corporation directors

In a 2-page order dated Nov. 24, 2009, in In re ITT Corporation Derivative Litigation, Chief Justice Shepard writes:

Pursuant to Indiana Appellate Rule 64, the United States District Court for the Southern District of New York has certified a question of Indiana state law for this Court's consideration. The question arises in In re ITT Corporation Derivative Litigation, Case No. 07-CV-2878 (CS) (S.D.N.Y.). The question, as framed by the federal district court, is:

"What standard should be applied in determining whether a director is 'disinterested' within the meaning of Indiana Code § 23-1-32-4(d), and more specifically, is it the same standard as is used in determining whether a director is disinterested for purposes of excusing demand on the corporation's directors under Federal Rule of Civil Procedure 23.1 and RaZes v. BZasband, 634 A.2d 927, 936 (Del. 1993)7"

The certified question, which each member of this Court has considered, is hereby ACCEPTED pursuant to Indiana Appellate Rule 64.

Posted by Marcia Oddi on November 26, 2009 08:47 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Daniels fills a three-month vacancy on Tipton City Court

From the Kokomo Tribune, a story by Daniel Human - some quotes:

The governor’s office announced Tuesday the appointment of 47-year Tipton resident Jack Richter as the city’s judge. He will fill a vacancy left by Judge Lewis Harper, who died in August while he served in office. * * *

Richter was born in Kokomo, then moved to Sharpsville, where he graduated from Sharpsville High School in 1956. He then enlisted in the U.S. Navy, serving as a carpenter with the Seabees until 1959.

He received a degree in accounting from Ivy Tech Community College in 1971 and worked in the accounting department of Delco Electronics in Kokomo until he retired in 1995.

His first experience with the legal system came after he retired when he went to work as a bailiff for former Tipton County Circuit Court Judge D.P. Nash.

Richter said his experience as a bailiff has helped him learn some of the basics about the legal system, but he will have a lot to learn once the state swears him into office.

“I’m not going to set the world on fire the first day,” he said.

Under Indiana law, it is not usually mandatory to be an attorney to be a city or town court judge.

Rateike said it is “not uncommon” for the governor’s office to appoint a non-attorney judge to serve in a city court. There are nine or 10 cities in the state that require city judges to be attorneys, but Tipton is not one of them, he said.

City courts are primarily responsible for handling minor offenses, mostly misdemeanors and infractions, such as traffic violations.

Posted by Marcia Oddi on November 26, 2009 08:41 AM
Posted to Indiana Courts

Wednesday, November 25, 2009

Ind. Courts - "1st educational neglect cases seen in Allen County: The two women claimed to be home schooling their sons" [Updated]

Ashkey Smith reports in the Fort Wayne News-Sentinel, in a long story that begins:

For the first time, Allen County is holding parents legally accountable in educating their children, but one Fort Wayne Community Schools board member says it needs to be more than just a one-time effort.

Two felony cases are in the Superior Court system, where two women have been charged with educational neglect - a Class D felony in Indiana. They both claim they have been home schooling their children, but do not have the documentation to prove it.

Lila M. Ferguson, 38, and Molly M. Williams, 42, who were living together in New Haven at the time, are each alleged to have removed their sons from public school in January 2006. Both told school officials they would be home schooling their children, according to the probable-cause affidavits. Ferguson did not enroll her son in a public school again until Sept. 16, 2008, and Williams did not do so until Jan. 12.

If convicted, each woman could face six months to three years in prison. Both are scheduled to plead guilty in court today.

This is the first time in Allen County, as far as representatives know, that prosecutors have charged anyone with educational neglect. The closest known case to the area occurred last year, when a Wabash woman was charged with the same crime because her fifth-grade son missed 10 days of school the previous year, six of them unexcused. Also, he was tardy 28 times and, according to his teacher, sometimes arrived dirty, smelling of urine and without his homework. The woman later agreed to plead guilty in return for a 1 1/2 -year suspended sentence, which she is serving on probation instead of jail, as long as her son attends school.

[Updated 11/26/09] Today's Journal Gazette has a brief story headed "Home-school moms plead to neglect."

Posted by Marcia Oddi on November 25, 2009 02:22 PM
Posted to Indiana Courts

Ind. Decisions - "Denial of racial harassment claim affirmed: Annual mistreatment at party too infrequent"

The Nov. 24th 7th Circuit decision in the Indiana case of Dennis Ford v. Minteq Shapes, summarized here, is the subject of a story today by David Ziemer in the Wisconsin Law Journal that begins:

Because it is so infrequent, the Seventh Circuit held that an employer did not create a hostile work environment by refusing to let its only black employee bring his grandchildren to the company Christmas party, even though it allowed the rest of its employees to bring their families.

Posted by Marcia Oddi on November 25, 2009 02:18 PM
Posted to Ind. (7th Cir.) Decisions

Courts - "First Amendment No Shield for Debt Collectors Gone Bad, Alaska Supreme Court Says"

A brief article by Marcia Coyle of The Blog of Legal Times today begins:

Debt collectors who use unfair or deceptive tactics during collection litigation cannot rely on the First Amendment's petition clause as a defense, ruled the Alaska Supreme Court recently in the first appellate decision on the issue.

In an increasing number of consumer cases, debt collection agencies have been arguing that their litigation tactics are immunized from suits under state and federal unfair trade practices laws because those suits burden their constitutional right to petition the courts, according to Deepak Gupta of Public Citizen Litigation Group, appellate counsel to the debtor in the Alaskan case.

“The Alaska Supreme Court’s ruling sends the message that debt collection companies can’t get away with abusive tactics simply by hiring lawyers,” said Gupta. “The court rejected a dangerous new immunity defense that would have created a gaping hole in consumer protection law.”

The Alaskan case— Pepper v. Routh Crabtree —stemmed from an attempt by Checkrite of Anchorage, a collection agency, to collect $518.80 in dishonored checks allegedly written by Robin Pepper, a mentally disabled woman. Checkrite hired the Routh Crabtree law firm in Anchorage to recover the amount owed, and the firm subsequently sued Pepper.

Posted by Marcia Oddi on November 25, 2009 02:13 PM
Posted to Courts in general

Ind. Courts - More on: "Indianapolis Courts, City dedicate $2 Million to Clear Backlog of Cases for Children in Need of Court Appointed Special Advocates"

Updating this ILB entry from yesterday, Jon Murray of the Indianapolis Star reports today:

An injection of $2 million will help shorten the backlog of about 800 abused and neglected children in Marion County who are on a waiting list to get adult advocates.

The advocates act on behalf of children involved in the welfare system, providing reports to the courts and helping children navigate legal and social services issues.
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The persistent backlog has rendered as many as half of eligible children effectively voiceless this year. While they wait, their cases keep moving forward.

"We could be nine months into a case before a child gets his advocate," said Marion County juvenile court Judge Marilyn Moores. "But children are parties to a case. . . . If you're waitlisted nine months, you're essentially unrepresented for that time."

Moores and other officials, including Mayor Greg Ballard, will announce the new funding today.

The money will help provide an extra set of eyes and ears -- something already required by law and an essential component, Moores said, as decisions by the courts can have grave consequences.

Marion County isn't alone in Indiana, particularly in urban areas, with struggling to fund programs and find enough advocates, who are mostly volunteers.

Adding to the pressure is a surge in child removals by the Indiana Department of Child Services in recent years as the agency has weathered a litany of high-profile deaths of children under its watch. Those included 12-week-old Destiny Linden, who was still on the advocate waiting list when she died in foster care.

The new funding will let Child Advocates, a nonprofit agency that provides the service in Marion County, hire more staff to manage community volunteer advocates. It also will recruit and train up to 200 more advocates to augment the 358 now on its roster, said Cindy Booth, the agency's executive director.

"We are hoping that by the end of next year," she said, "all children will be represented." * * *

Marion County's waiting list is down from about 1,100 at the start of the year. Statewide, despite a record number of new volunteers last year, the backlog was 4,000 by the end of 2008 in 65 counties with certified Court Appointed Special Advocate or guardian ad litem programs, though not all had waits.

The state GAL/CASA office has put up highway billboards seeking more volunteers and recently received a $20,000 grant to create a recruiting Web site. "We've had more interest than ever," said Leslie Dunn, the office's director.

Advocates often spend more time with children than DCS caseworkers or anyone else in the system, visiting foster homes and reporting to the court about their needs and care.

"They don't have a dog in the fight as far as the legal issues," Moores said. "They are there to represent the child's best interest."

From an Indy Star sidebar:

Here's how you can help

Volunteer advocates are needed across Indiana to help children who have been abused and neglected. All prospective volunteers must be at least 21 years old and a high school graduate, complete an application, and submit to a criminal background check. A training program is required.

Volunteers gather information to help assess the home life of a child in foster care. They also monitor the child's care and needs while in foster care. Their written reports, based on their observations, are used in court to help determine a child's future.

For more information about volunteering in Marion County, call (317) 205-3055 or send an e-mail to info@childadvocates.net.

For more information about volunteer opportunities in other counties, call (800) 542-0813 or go online to www.casa.IN.gov.

Posted by Marcia Oddi on November 25, 2009 02:05 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Cincinnati Insurance Co. v. James and Jan Trosky, et al , a 16-page opinion, Judge Friedlander writes:

Cincinnati Insurance Company appeals from the trial court's order in a declaratory judgment action denying Cincinnati's and State Farm Fire's motions for summary judgment, and granting James and Jan Trosky's motion for summary judgment against Cincinnati and State Farm Fire, and granting Kaitlin Culpepper's cross-motion for partial summary judgment against Cincinnati. Cincinnati raises the following issue for our review: Did the trial court correctly conclude that excess underinsured motorist coverage (UIM coverage) in a personal liability umbrella policy was available where the underlying insurance policy provided UIM coverage, but no UIM benefits were paid because the total coverage limits had been exhausted instead by set-offs and liability payments? We affirm. * * *

In summary, Indiana substantive law applies here. Further, we hold that the government vehicle exclusion from the definition of underinsured motorist in insurance policies is void as against public policy in Indiana. Lastly, we hold that the exhaustion of a tortfeasor's statutory tort cap liability does not mean that an insured is not “legally entitled to recover” as that term is used in insurance policies.

Rachid Dallaly v. State of Indiana is a 14-page opinion written by Judge Brown. It begins:

Rachid Dallaly appeals his convictions for resisting law enforcement as a class A misdemeanor and disorderly conduct as a class B misdemeanor. Dallaly raises two issues, which we revise and restate as whether the evidence is sufficient to sustain his convictions. We affirm.

NFP civil opinions today (2):

Gary Moody v. Wellman Group (NFP) is a pro se case. The 8-page opinion by Judge Friedlander begins:

Gary Moody appeals from a small claims judgment in favor of Wellman Group, LLC (Wellman), Moody‟s former landlord, for unpaid rent and damages. Proceeding pro se, Moody presents the following consolidated and restated issues for review:
1. Did the trial court abuse its discretion by denying Moody‟s requests for the appointment of counsel?
2. Did the trial court abuse its discretion by denying Moody‟s third request for a continuance?
3. Did the trial court improperly accept testimony from an unsworn witness?
4. Did the trial court and its staff exhibit bias and unprofessional conduct toward Moody?
We affirm.

In Steven Barnard and Sherry Barnard v. Metro Security Forces, Inc., et al. (NFP), a 7-page opinion, Judge Robb writes:

Steven Barnard appeals the trial court’s order granting summary judgment in favor of Metro Security Forces, Inc. (“Metro Security”). For our review, Barnard raises a single issue, whether the trial court erred when it granted summary judgment. Concluding the evidence submitted by Metro Security is insufficient to support the grant of summary judgment, we reverse and remand.

NFP criminal opinions today (4):

David A. Kendrick v. State of Indiana (NFP)

Noah J. Springer v. State of Indiana (NFP)

Betty Grady v. State of Indiana (NFP)

Michael D. Wall v. State of Indiana (NFP)

Posted by Marcia Oddi on November 25, 2009 01:39 PM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Adult businesses back on agenda" for New Haven

Litigation involving the City of New Haven and Flying J has been the subject of a number of ILB entries involving both state and federal court, the most entry being this one from August 31, 2009 - COA opinion.

Today Amanda Iacone reports in the Fort Wayne Journal Gazette in a long story that begins:

NEW HAVEN – New Haven officials continued efforts Tuesday to restrict and control adult entertainment businesses.

The City Council introduced two ordinances that would designate which businesses must apply for a city permit to operate. The council referred a third ordinance, which would determine which zoning districts such businesses would be allowed in, to the city’s plan commission. And the council tabled a fourth ordinance that deals with massage-related businesses.

City attorneys and officials have been working with a Tennessee attorney who specializes in writing and defending these types of ordinances, City Attorney David Van Gilder said.

The idea is not to restrict First Amendment rights, he said.

The proposed ordinances cite federal case law to support the city’s rationale for regulating such businesses. The proposed application and renewal fees are set low so that opening an adult bookstore or strip club isn’t cost-prohibitive or too restrictive, which could be seen as a violation of constitutional rights, Van Gilder said.

In general, the content of the sexually oriented business ordinances varies little from past versions that have been presented to the council. It limits the hours of operation, defines what types of business fall under the ordinance, and outlines the application and appeal process.

A separate zoning ordinance change would limit such businesses to industrially zoned areas of the city. New Haven provides a number of areas zoned industrial, which should give any would-be business owners some flexibility, Van Gilder said.

The ordinance would also prevent such locales from opening within 1,000 feet of a school, church, park or residential property.

The proposal also calls for amending an existing city law that regulates massage parlors.

Re the "Tennessee attorney", this ILB entry from July 9, 2006 quoted a story from the Evansville C&P headed "County getting lesson in laws: Efforts target adult business" that included the following:

Increasingly, small, rural counties that border major interstates are finding themselves home to adult-oriented businesses.

Spencer County officials hired a Tennessee attorney to advise them on how to shut down the Love Boutique.

Scott Bergthold of Chattanooga has built a national reputation for helping small communities keep out adult entertainment businesses. He told them the local case is part of a "very large trend" that's been going on in rural counties around the country for a good part of the past decade.

"They (rural officials) never thought they'd have the problem and now the wolf is at the door," he said. "But I have worked for a lot of counties like Spencer County, and they all share the commonality of bordering an interstate."

Posted by Marcia Oddi on November 25, 2009 08:50 AM
Posted to Indiana Government

Environment - Wind turbines in the news

Tom Spaulding reported yesterday on the Indianapolis Star site:

A 106-megawatt wind farm built to give Indianapolis Power & Light Co. a new green supply of energy began operating this week in Northwest Indiana, one of several developments under way in the growing number of turbines in the state.

The Hoosier Wind Project near Fowler in east central Indiana consists of 53 turbines and was built by enXco, which announced this week that the farm will be delivering carbon-free electricity to IPL.

It is the second wind farm to begin supplying power to Indiana in two weeks. A wind farm capable of generating enough power to light 60,000 average homes was dedicated last week in northwestern Indiana of Horizon Wind Energy's operations near the town of Brookston. * * *

IPL's parent company, AES Corp., said in the summer that it plans to build wind turbines in an area that would span the line between Clinton and Tipton counties, a project that would cost up to $1 billion. The counties are north of Indianapolis.

A public hearing Dec. 8 will consider the proposal to put wind turbines in southeastern Clinton County. The proposal by AES Wind Generation LLC, a Virginia-based company, calls on installing and operating up to 200 2.5-megawatt windmills. The farm will cover roughly 32,000 acres in the eastern portion of the county.

"By size, it will be the largest (wind farm) project in the area," said Mark Mills, director of the Clinton County Area Plan Commission.

Clinton County Commissioner Bill Beard said he's excited about the wind farm potential.

"I'd say that has the potential to double the assessed valuation in the county, thereby reducing tax rates," Beard said.

In other recent news about wind farms in Indiana, officials last week celebrated the completion of the first of three phases of the Meadow Lake Wind Farm near Brookston in northern Indiana. The Meadow Lake farm has 121 turbines already, and the second phase will add 66 turbines.

In a story today in the Evansville C&P, Garret Matthews reports:

BOONVILLE, Ind. — A Warrick County judge has ruled the 60-foot-tall wind turbine that Huntington Creek Subdivision resident David Johnson wants to build is OK under the county's zoning ordinance.

"A free-standing wind turbine tower is permitted as an accessory use in an R-2 district upon the proper granting of a variance," Judge Keith A. Meier of Superior Court No. 1 wrote in a decision earlier this month.

The ruling concerned a variance granted to Johnson by the county's Board of Zoning Appeals in the spring.

The ILB quotes from a longer story on the challenge in this Sept. 10, 2009 entry.

Here is a list of other ILB entries on wind turbines.

Posted by Marcia Oddi on November 25, 2009 08:39 AM
Posted to Environment

Environment - More on "Pollution partners not all paragons: State recognizes 22 firms it also has fined"

A Fort Wayne Journal Gazette editorial today headed "Poor partnership" references its Nov. 22nd story and opines:

The Indiana Department of Environmental Management’s Partners for Pollution Prevention is an extreme example of mission creep. The primary duty of the state agency is enforcement against environmental polluters, not serving as their public relations team.

There is nothing wrong with IDEM officials patting on the back those corporate citizens with exemplary environmental records for their environmental stewardship. Praising companies that successfully demonstrate an understanding that protecting Indiana’s environment protects the state’s economy is wise. But as the Sunday story by Dan Stockman showed, IDEM’s Partners for Pollution Prevention program recognized 22 businesses that it also has fined for environmental violations.

IDEM officials try to sell the program as a public-private partnership to prevent environmental pollution. But it’s clear the agency needs to be more selective about its partners.

The list of companies participating in the prevention program is rife with companies already cited for breaking state environmental laws. The list of 58 partners includes several of the state’s largest polluters. And those companies have accumulated more than $1 million in fines and costs to meet IDEM demands. * * *

For two years IDEM has been ridiculed for the leniency it showed the BP Whiting oil refinery. Officials in neighboring Illinois were outraged that Indiana regulators were going to permit the refinery to increase the pollution the refinery dumps into Lake Michigan, the source of Chicago’s drinking water. And recently, the EPA amended its citation against the BP refinery for clean air violations.

According to the IDEM, no partner has ever been removed from the program because of violations.

The agency needs to make enforcement against companies that pollute a greater priority. And save the feel-good partnership programs for companies that are demonstrating good environmental stewardship.

Posted by Marcia Oddi on November 25, 2009 08:33 AM
Posted to Environment

Ind. Gov't. - "State audits, slams Lake County books"

A long story today in the Gary Post-Tribune, reported by Andy Grimm, begins with this:

CROWN POINT -- State auditors had a few simple suggestions for Lake County to do a better job of handling taxpayer money. Keep ledger books. Reconcile them with bank statements. Close the door to your safe.

Financial practices in the county received sub-par reviews in a host of State Board of Accounts audits for 2008 that were released this week.

A side-bar instructs:

To view the audit reports online, go to the State Board of Accounts Web site, www.in.gov.sboa, and look for Lake County reports posted Nov. 19.

What you are looking for is reports B35145 through B35155.

Posted by Marcia Oddi on November 25, 2009 08:25 AM
Posted to Indiana Government

Ind. Law - Still more on: Governor signs first bill of 2009 session

Per this ILB entry from March 25, 2009, the first bill signed in the 2009 session was in support of a company called Indiana Gasification LLC. The AP reported at the time:

Daniels said federal agencies forecast that over the long term it will be cheaper "perhaps by a very large margin" to produce synthetic natural gas from coal rather than buying actual natural gas because of market fluctuations.

But opponents of the bill contend that it could actually lead to higher bills for natural gas users.

National stories, however, have been about the production of natural gas from shale, leading to items like this one from the NY Times quoted in this Oct. 10, 2009 ILB entry:

The projections suggest that the new method of producing gas “is the biggest energy innovation of the decade,” said Daniel Yergin, chairman of the Cambridge consulting group. “And the amazing thing is there was no grand opening ceremony for it. It just snuck up.”

Over the last five years, production of gas from shale has spread across wide swaths of Texas, Louisiana and Pennsylvania. All the new production has produced a glut of gas in the United States, helping to drive down gas prices and utility costs.

Meanwhile, the Indiana-financed natural gas from coal project continues, and is now looking at a $1 billion project to build a pipeline to pump CO2 from Indiana to the Gulf Coast, according to a story today by Dan Shaw in the Evansville Courier & Press:

After a Rockport, Ind., plant turns coal into natural gas, it will send the carbon dioxide produced as a byproduct to the Gulf of Mexico via a pipeline.

Once there, the CO2 will be pumped into wells to force up more oil than could be obtained through normal drilling. That’s the idea at least, says William Rosenberg, a leader in the company undertaking the project, Indiana Gasification LLC. * * *

Indiana Gasification has a contract to sell its CO2 to Denbury Resources Inc., a Plano, Texas-based company, he said. Under the plans, Denbury will pay for building the pipeline from the Gulf Coast, a project estimated to cost more than $1 billion. The company, an independent oil and gas company, will pump the gas from the Rockport plant and use it to force oil out of wells.

By selling the excess oil, Denbury will bring in enough revenue to pay for both the pipeline and the cost of transporting the CO2, Rosenberg predicted. There may even be enough money left over to return to Indiana Gasification as a profit, which would help to keep the rates paid by utility customers low, Rosenberg said.

But the Rockport plant won’t generate enough CO2 itself to support the pipeline. Another company will have to enter into a similar agreement. Rosenberg said companies in Illinois, Indiana and Kentucky have shown interest in that prospect. * * *

The Department of Energy is now considering whether it will guarantee loans Indiana Gasification takes out to build the project. Rosenberg said he hopes to obtain the federal government’s promise to pay off $1.87 billion in debt should the plant fail.

Before awarding the guarantee, the Department of Energy must study whether the plant will emit loud noises, pollute nearby water and air, worsen flooding and affect the underlying geology, among other possibilities. Its conclusions will go into an environmental-impact statement, likely to appear in 18 to 24 months.

Before then, the public will have at three opportunities to comment on the plan, including Dec. 3. Though Rosenberg looks forward to getting the loan guarantee, that step won’t be the last governmental approval needed for the project.

Just as important will be a contract with the Indiana Finance Authority, which will determine exactly how Indiana Gasification will be compensated for making natural gas out of coal. Under current plans, utility companies throughout the state will have to deliver the gas produced at the Rockport plant.

The cost of that fuel will make up part of every bill sent to a utility customer, Rosenberg said. The price they pay — like any utility rate — will be controlled by the Indiana Regulatory Commission.

Rosenberg said he hopes to sell natural gas for $7.50 a therm, an amount that can fluctuate with the cost of coal and labor. He acknowledged that price is higher than the same therm can be bought for today. At the close of the market Monday, natural gas was being sold for $3.79 a therm.

[More] The Indianapolis Star has just posted an AP story headlined "Price of Duke Energy's coal-gasification plant soars."

Posted by Marcia Oddi on November 25, 2009 07:51 AM
Posted to Indiana Law

Tuesday, November 24, 2009

Courts - Illinois appellate court rejects "legitimate business interest" test

Here is the opinion, issued 9/23/09, Sunbelt Rentals v. Ehlers.

Here is the write-up today in Chicago Law, with the headline "Illinois court resets bar for non-compete clause; 'Legitimate business interest' test no longer valid."

Posted by Marcia Oddi on November 24, 2009 03:26 PM
Posted to Courts in general

Ind. Decisions - One case granted transfer Nov. 24th

The Clerk's transfer list should be available probably Monday. Meanwhile, the ILB has received notice that transfer was granted today in the following case:

• Kenneth J. Brown v. State of Indiana (11A04-0904-CR-213) - Here is the ILB summary (2nd case) of the Sept. 30, 2009, 2-1 opinion. Here is a quote from the dissent in the case:

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

Posted by Marcia Oddi on November 24, 2009 12:38 PM
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Clark E. Welch, et al. v. Connie M. Heavelin, et al. , a 4-page opinion, Sr. Judge Hoffman writes:

Clark E. Welch appeals the trial court’s order of foreclosure in favor of Connie and Daniel Heavelin, assignees of a mortgage from their deceased mother, Verlie Mae Welch Gillespie. We affirm. * * *

[Welch's] sole contention is that pursuant to the Judgment Lien Statute, the lien on his property expired in June 2003, ten years from the time the lien was entered, and five years before Gillespie died.

However, more than one-hundred and twenty-five years ago, the Indiana Supreme Court explained that the predecessor to Indiana Code Section 34-55-9-2 applied only to the recovery of money, and did not apply to a decree of foreclosure establishing a specific mortgage lien upon real estate. The Evansville Gas-Light Company v. the State ex rel. Reitz, 73 Ind. 219, 221 (1881). This court reached a similar result in Lewis v. Davis, 55 N.E.2d 119, 120 (Ind. Ct. App. 1944), wherein we stated that although an action on a note is barred by the a ten-year statute of limitations, an action to foreclose the mortgage made to secure payment of the note is controlled by a twenty-year statute.

Here, the trial court properly found that the controlling statute is Indiana Code Section 32-28-4-1, which controls mortgage liens. Pursuant to the terms of this statute, a mortgage lien expires in twenty years. The mortgage lien in this case was created in 1993, and Connie and David had until 2013 to foreclose the mortgage. Their 2008 complaint was therefore timely filed, and we find no error.

NFP civil opinions today (4):

Donald Frazier v. Asset Acceptance, LLC (NFP) - "The Indiana Code provides that the St. Joseph Superior Court has “[o]riginal, appellate, concurrent, and coextensive jurisdiction with the circuit court in all civil cases, criminal cases, and probate matters.” Ind. Code § 33-33-71-8(1). Thus, the St. Joseph Superior Court had subject matter jurisdiction over the instant case because it is a civil case, and whether the judgment was based on a claim not properly raised does not affect that subject matter jurisdiction. Because the instant case does not implicate subject matter jurisdiction, Frazier's Trial Rule 60(B)(6) motion presented no valid basis for a void judgment. The trial court did not err in denying his motion to reconsider it. We will not allow Frazier to use Trial Rule 60(B)(6) to resurrect his right to appeal. Affirmed."

Darren D. Williams and Tonya Williams v. City of Logansport, et al (NFP) - "Darren and Tonya Williams, pro se, appeal the trial court's order declining to award damages in their action against the City of Logansport and the Cass County Sheriff's Department (the “Department”) to quiet title and for slander of title. We affirm."

Dale L. Horn v. Lucinda B. Horn (NFP) - a 2-1 opinion: "Based on the foregoing, we find that (1) the trial court did not abuse its discretion by denying Dale’s motion for a continuance; (2) the trial court properly divided the marital estate; and (3) the trial court properly calculated Dale’s child support obligation."

Term. of Parent-Child Rel. of B.A. & D.A., Jr.; D.A. v. IDCS (NFP)

NFP criminal opinions today (3):

Credell Henry v. State of Indiana (NFP)

Ketih McCants v. State of Indiana (NFP)

Eric E. Fields v. State of Indiana (NFP)

Posted by Marcia Oddi on November 24, 2009 10:43 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Indianapolis Courts, City dedicate $2 Million to Clear Backlog of Cases for Children in Need of Court Appointed Special Advocates"

From a just-received press release:

Mayor Ballard will join Marion County Superior Court Judge Marilyn Moores and representatives from Child Advocates to announce funding for a new court structure designed to clear a backlog of more than 800 cases involving foster children in need of legal advocates.

Child Advocates, Inc. is appointed by the Marion County Courts to represent the interests of children who have been removed from their homes because of abuse and neglect.

WHO: Mayor Greg Ballard; Marion County Superior Court Judge Marilyn Moores; Cindy Booth, Executive Director of Child Advocates, Inc.; Aaron Storey, formerly a foster child represented by a Court Appointed Special Advocate,; and Danielle Pierson, former foster youth and now social worker

WHAT: Announcement of funding for case backlog

WHERE: Marion County Juvenile Court, 2451 N. Keystone Avenue, Muster Room

WHEN: 9:30 a.m. Wednesday, November 25, 2009

Posted by Marcia Oddi on November 24, 2009 10:33 AM
Posted to Indiana Courts

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

In Dennis Ford v. Minteq Shapes (ND Ind., J. Van Bokkelen), a 7-page opinion, Judge Bauer writes:

Dennis Ford sued his employer, Minteq Shapes and Services, Inc., claiming that Minteq racially harassed him, paid him a discriminatory wage, and retaliated against him, all in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. The district court granted summary judgment to Minteq on all counts. We have reviewed the district court’s decision de novo; finding no error, we affirm.

Posted by Marcia Oddi on November 24, 2009 10:28 AM
Posted to Ind. (7th Cir.) Decisions

Courts - "NY Judge Blasts Bank's Foreclosure Conduct and Cancels Mortgage"

Vesselin Mitev reports in the New York Law Journal in a long story that begins:

A lender's "unconscionable, vexatious and opprobrious" conduct in attempting to foreclose on a Long Island home has prompted a state judge to cancel the mortgage on the property.

IndyMac Bank v. Yano-Horoski, 2005-17926, came before Suffolk County Supreme Court Justice Jeffrey A. Spinner as the result of a state law mandating pre-foreclosure settlement conferences between lenders and borrowers of subprime, or high-cost, home loans.

The case was decided with the county facing what the judge characterized as "the yawning abyss of a deep mortgage and housing crisis with foreclosure filings at a record high rate and a corresponding paucity of emergency housing."

Spinner acknowledged that foreclosure is sometimes inevitable and proper, but he noted that a "plethora" of subprime mortgages had been successfully modified in the county's foreclosure part. And he said that he found it "deeply troubling" that the bank had spurned what would have been a "win-win" solution for all parties.

Instead of negotiating, he said that the bank had engaged in "harsh, repugnant, shocking and repulsive" treatment of the homeowner, Dana Yano-Horoski.

Posted by Marcia Oddi on November 24, 2009 10:16 AM
Posted to Courts in general

Ind. Courts - Prosecutor named in Harrison County case

A story by Alan Stewart today in The Corydon Democrat includes these quotes:

The special prosecutor in the sexual harassment case against Harrison County Sheriff G. Michael Deatrick also has been named as the special prosecutor in the case of John Britton, an officer with the Harrison County Sheriff's Department who allegedly provided the means by which his wife allegedly shot herself.

Harrison Superior Court Judge Roger D. Davis announced last Wednesday afternoon that Switzerland County Prosecutor Nancy Jacobs will handle the Britton case. * * *

On Oct. 27, Harrison County Prosecuting Attorney Dennis Byrd filed a petition for the appointment of a special prosecutor to look into the case against Britton. The petition said the appointment of a special prosecutor was necessary to avoid the appearance of impropriety and/or a conflict of interest.

Byrd's request said that on Sept. 24 and Oct. 6, 20 and 27, he consulted with the Indiana Prosecuting Attorneys Council to discuss the ethical duties and responsibilities created by a tort claim against Harrison County filed by the estate of Christine Britton. * * *

The tort claim was filed Sept. 17 in Harrison Circuit Court on behalf of the estate of Christine Britton, who died of an alleged self-inflicted gunshot wound in March at the couple's home near Ramsey.

Charlotte Hitner, Christine Britton's mother, is serving as the personal representative of her daughter's estate for the sole purpose of bringing a wrongful death action on behalf of Christine Britton's 13-year-old daughter. The claimant anticipates the damage to be in excess of $700,000, but per Indiana Code, the $700,000 amount is the maximum allowed by law.

Indiana State Police investigators said that during questioning John Britton admitted leaving a handgun in the room after his wife threatened to shoot herself.

Byrd's petition said that both the Indiana State Police and the Kentucky Medical Examiner determined that the cause of Christine Britton's death was suicide.

John Britton remains on indefinite administrative leave.

Posted by Marcia Oddi on November 24, 2009 10:10 AM
Posted to Indiana Courts

Ind. Law - "Judge Michael Eldred announces retirement from Vigo Superior Court after almost 30 years"

Lisa Trigg has this story today in the Terre Haute Trib-Star. Some quotes:

Judge Michael Eldred has been a fixture on the bench of Vigo Superior Court 1 for almost 30 years.

But when his fifth six-year term comes to a close at the end of 2010, Eldred has decided he will retire from office in the Vigo County Courthouse.

He announced Monday that he will not seek a sixth term as judge of Division 1.

“This has been a difficult but rewarding job with different challenges almost every day,” Eldred said. “Yet, I can say that I enjoyed coming to this courthouse every day.”

The range of cases he has presided over has run the gamut from misdemeanor crimes to felony murder. Eldred said he feels himself to be “maxed out experience-wise,” but that does not mean he is ready to give up practicing law.

Serving as a senior judge is one option. He has also taught classes at Indiana State University. And he welcomes new opportunities that may arise.

“I’ve always been challenged by complex cases, and I know the Indiana Supreme Court accepts competent senior judges to do difficult cases around the state, so I will consider joining that group if they’ll have me.”

Announcing his retirement from the bench with a year left to serve not only allows Eldred time to plan for the future, but it also gives potential candidates for the office a chance to prepare their campaigns.

Posted by Marcia Oddi on November 24, 2009 09:53 AM
Posted to Indiana Courts

Law - "In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold"

That is a quote from Adam Liptak's front-page story today in the NY Times. Headed "Right and Left Join to Challenge U.S. on Criminal Justice," the story reports that:

Edwin Meese III, a former attorney general, once referred to the American Civil Liberties Union as part of the “criminals' lobby,” but on this issue, he says, he is willing to work with the group.

More quotes:

In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.

But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained. * * *

“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws. * * *

Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July.

“The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,” Mr. Thornburgh said. “Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the A.C.L.U.”

In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the “liberal ideas of extending the power of the state” were to blame for an out-of-control criminal justice system. “Our tradition has always been,” he said, “to construe criminal laws narrowly to protect people from the power of the state.” * * *

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.

In January, for instance, the Supreme Court will hear arguments in United States v. Comstock, about whether Congress has the constitutional power to authorize the continued confinement of people convicted of sex crimes after they have completed their criminal sentences.

Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October.

Posted by Marcia Oddi on November 24, 2009 09:42 AM
Posted to General Law Related

Ind. Gov't. - "Ex-Town of Chesterfield Employees Accused Of Siphoning Town Funds "

Here is the story from last evening's Indy 6 News:

Five former employees of the town of Chesterfield in Madison County are accused of stealing hundreds of thousands of dollars in public funds for personal use.

The Indiana Attorney General's Office filed a lawsuit Monday afternoon against former Clerk Treasurer Chris Parrish, former Town Marshal James Kimm, former part-time police officer Joseph Brown and former water department maintenance employees Chris Walters and James Walters, 6News' Rafael Sanchez reported.

A recent State Board of Accounts audit found the misuse of $259,626 from the town of Chesterfield during 2007 and 2008.

"We have this case, and a number of other cases, where it's not just a bookkeeping error, it's not something where people have made a mistake about accounting, but where people made personal benefit out of public funds they should know we're going to come after them," Attorney General Greg Zoeller told 6News.

Here is the news release from AG Zoeller's office. Some quotes:

INDIANAPOLIS – Today Indiana Attorney General Greg Zoeller filed a lawsuit demanding that five former officials of the town of Chesterfield – including the former clerk-treasurer and former town marshal -- repay more than $259,000 in public funds they allegedly defrauded from the town government. The Attorney General also is seeking temporary restraining orders against the defendants to protect assets from being disposed of or sold.

The lawsuit, filed in Madison County Circuit Court, is part of a stepped-up effort by Zoeller to combat public corruption and misuse of tax dollars by elected officials and government employees.

“The claim that the town’s former top fiscal officer and the town’s former police chief hatched a scheme to defraud the taxpayers who employed them appears to be the ultimate betrayal of the public’s trust,” Zoeller said.

The case stems from an Oct. 26, 2009, certified audit by State Board of Account examiners who found that five individuals, individually or together, allegedly defrauded the town government out of a total $259,626.07 by getting paid for false mileage reimbursement claims, phony automotive-repair and building-repair claims, and for hours never worked during 2007 and 2008. * * *

"The audit claims this fraud was brazen in its audacity and proportionately large in its scope. The quarter-million-dollar fraud represents a very sizeable portion of the town’s entire operating budget. That’s why we will be moving quickly in pursuing the defendants’ assets in order to protect the taxpayers and restore to the Chesterfield town treasury what was wrongfully taken,” Zoeller said.

The State Board of Accounts audit found that Parrish and the others executed the scheme without the knowledge of the Chesterfield Town Council. Parrish issued “manual” checks the council did not see, the audit found.

Posted by Marcia Oddi on November 24, 2009 09:35 AM
Posted to Indiana Government

Monday, November 23, 2009

Courts - "GPS and Privacy Rights" [Updated]

From an editorial today in the NY Times:

A federal appeals court in Washington, D.C., heard arguments last week about whether police should have to get a warrant before putting a GPS device on a suspect’s car. It is a cutting-edge civil liberties question that has divided the courts that have considered it. GPS devices give the government extraordinary power to monitor people’s movements. The Washington court should rule that a warrant is required.

Antoine Jones was charged with being part of an interstate drug conspiracy. The government obtained evidence against Mr. Jones by putting a GPS device on his Jeep. It obtained a court order to install the GPS device, but the defense said the order was faulty, and tried to get the evidence collected by the device thrown out. The government responded that the evidence was admissible because it did not need to get a court order at all.

The Supreme Court has not considered the question of whether the police need a court order to install a GPS device. The government has tried to draw an analogy to a 1983 case in which the court ruled that the police do not need a warrant to use a radio beeper to track a vehicle on public roads, but the circumstances were different. In that case, the police were conducting visual surveillance of a particular suspect’s movements, and a beeper augmented the officers’ senses. A modern GPS device is a far more potent means of tracking people than a beeper.

Lower courts have reached different conclusions. A panel of the Chicago-based United States Court of Appeals for the Seventh Circuit ruled in 2007 that a warrant is not required for remote surveillance by a GPS device, although it said that if the police began to use the technique on a large scale it might violate the Fourth Amendment.

The highest courts of three states — New York, Oregon and Washington — ruled the opposite way, that their state constitutions prohibit the police from installing GPS devices without a warrant. The New York Court of Appeals, the highest New York court, got it exactly right earlier this year, insisting that permitting police to install GPS devices without judicial oversight would be “an enormous unsupervised intrusion by the police agencies of government upon personal privacy.”

As technology advances, government will continue to acquire new and more efficient ways of monitoring people. It is critical that the privacy rights guaranteed by the Fourth Amendment keep up with those advances.

For more on the NY ruling, see this ILB entry from May 18, 2009, and this one from July 2, 2009. The May entry also discusses and links to the 7th Circuit opinion, U.S. v. Garcia.

The NYT editorial does not mention a Sept. 17, 2009 Mass. high court decision about which the Boston Globe wrote at the time: "For the first time, the Supreme Judicial Court ruled yesterday that the state constitution allows police to break into a suspect’s car to secretly install tracking devices using a global positioning system, provided that authorities have a warrant before they do so." That decision was Comm. v. Connolly.

Here is the State of Washington case from 2003, Jackson v. State, and the much-cited Oregon case from 1988 (involving a radio transmitter), State v. Campbell.

[Note that the ILB used the new Google Scholar feature to quickly access these cases. Read about it here.]

[Updated 11/24/09] We have had at least one trial court ruling in Indiana on this issue, and the ILB reported it on March 9, 2006. Here is an OCRed copy of the March 6, 2006 Order Granting Motion to Suppress, issued by Judge David O. Kelley, Warrick Circuit Court.

Posted by Marcia Oddi on November 23, 2009 05:24 PM
Posted to Courts in general

Ind. Decisions - Transfer list for week ending November 20, 2009

Here is the Clerk's transfer list for the week ending November 20, 2009. It is three pages long.

No transfers were granted last week.

___________

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 23, 2009 01:55 PM
Posted to Indiana Transfer Lists

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

For publication opinions today (1):

In Marlow J. Lainhart v. State of Indiana , a 33-page opinion, Judge Vaidik writes:

Marlow Lainhart appeals his conviction for Class A misdemeanor intimidation. Marlow was found guilty of communicating a threat to another person with intent to place the victim in fear of retaliation for a prior lawful act. At trial, the State improperly (1) distinguished the roles of defense and prosecution in criminal cases, (2) discussed the penal consequences of the crime charged, (3) commented on the defendant's failure to produce witnesses in his defense, and (4) vouched for the credibility of the investigating officer. We find these acts of misconduct together constituted fundamental error. We further hold that the State improperly charged alternate crimes in a single count of intimidation. We reverse and remand. * * *

Differentiating the roles of prosecution and defense during voir dire is generally improper and may constitute fundamental error. * * *

Here the prosecutor's comments during voir dire echoed the remarks held improper in Bardonner. The prosecutor explained that his job was “to seek the truth,” whereas the role of defense counsel was “to defend their client to the best of their ability, whatever that may be.” In accordance with Bardonner, we hold that the State's voir dire remarks constituted improper commentary on the disparate roles of defense and prosecution. * * *

Marlow argues that the State improperly discussed potential punishment with the jury panel.

Punishment is not an element of the crime charged, and when punishment is not to be imposed by the jury, it is not a matter to be placed before the jury, by the State, for its consideration. * * *

The prosecutor did not cite the exact range of punishment for the crime charged, but even the State concedes that “what the prosecutor did here had essentially the same consequences as if the prosecutor had informed the jury of the actual penalties; that is, it presented the problem of the jury considering something other than guilt or innocence on the evidence in its deliberations and such may constitute misconduct.” We agree with both Marlow and the State that the prosecutor's comments vis-à-vis potential punishment were improper. * * *

Marlow argues that the State improperly impeached him with his post-arrest silence.

The use for impeachment purposes of a defendant's silence, at the time of arrest and after receiving Miranda warnings, violates the Due Process Clause of the Fourteenth Amendment. Doyle v. Ohio, 426 U.S. 610, 619 (1976). * * *

Marlow therefore fails to meet his burden of showing that he received Miranda warnings prior to the silence with which he was impeached. Accordingly, we find no Doyle violation and hold that the State's cross-examination was not improper. * * *

It is improper for a prosecutor to suggest that a defendant shoulders the burden of proof in a criminal case. Dobbins v. State, 721 N.E.2d 867, 874 (Ind. 1999). While the State may argue to the jury the uncontradicted nature of its own case, the State may not suggest that the defendant has the burden of proof by inquiring in closing argument why the defendant did not call witnesses to testify on his behalf. Wright v. State, 690 N.E.2d 1098, 1112 (Ind. 1997), reh’g denied. * * * Indiana cases have consistently held that a prosecutor's improper statements concerning a defendant's failure to present witnesses may be cured by the trial court advising the jury that the defendant was not required to prove his innocence or to present any evidence. * * *

Here the prosecutor suggested during jury selection that “it would take an awful lot to get an officer [to lie]” and said that “there's no place for it in our society.” During closing argument he told jurors that “if any officer would even come close to not putting out exactly what happened telling the truth, they're out. I would never, ever, put them in front of a Jury, if I suspected anything.” We agree with Marlow that the prosecutor's remarks constituted improper indoctrination, vouching, and commentary on the justness of the cause.

We conclude that the State improperly distinguished the roles of prosecution and defense, referred to the penal consequences of the offense charged, commented on Marlow's failure to call corroborating witnesses, and personally vouched for Officer Roberts's credibility. Although each instance of prosecutorial misconduct alone may not have constituted reversible error, we are persuaded that the cumulative effect of the State's misconduct was to make a fair trial impossible.

Having concluded that the State's misconduct constituted reversible error, the question of whether Marlow may be subjected to a new trial depends upon an analysis of the sufficiency of the evidence. McMurrar v. State, 905 N.E.2d 527, 529 (Ind. Ct. App. 2009). If, viewed as a whole, the State's evidence would have been sufficient to sustain the judgment, retrial would not offend double jeopardy principles. Id. If, however, the evidence is insufficient, Marlow may not be retried. Id. at 529-30. * * *

For the reasons stated, we find sufficient evidence to sustain Marlow's conviction for Class A misdemeanor intimidation. The State may therefore retry Marlow if it so chooses. We address Marlow's remaining arguments to the extent they may arise on remand.

NFP civil opinions today (1):

Lesa Davis v. Antony Romack (NFP) - "Put simply, the relevant circumstances here have not changed. The trial court’s denial of Mother’s motion to order Father to pay weekly child support is not clearly erroneous."

NFP criminal opinions today (3):

Scott E. Lawrence v. State of Indiana (NFP)

Charles Jackson v. State of Indiana (NFP)

David I. Shirley v. State of Indiana (NFP)

Posted by Marcia Oddi on November 23, 2009 12:32 PM
Posted to Ind. App.Ct. Decisions

Courts - "Standards for Juvenile Punishment "

Adam Liptak's weekly "Sidebar" column in the NY Times begins today:

The law is made up of rules and standards.

Here is an example of a rule, established by the Supreme Court in Roper v. Simmons in 2005: If you commit murder even hours before your 18th birthday, you cannot be put to death for your crime. The same killing a few hours later may be a capital offense. The court drew a bright-line rule at 18.

Here is an example of a standard, one proposed by Chief Justice John G. Roberts Jr. this month at Supreme Court arguments over whether juvenile offenders may be sentenced to life without the possibility of parole: Why not, the chief justice asked, interpret the Eighth Amendment’s ban on cruel and unusual punishment to require sentencing judges to consider the defendant’s age on a case-by-case basis?

“If you do have a case where it’s the 17-year-old who is one week shy of his 18th birthday and it is the most grievous crime spree you can imagine, you can determine that in that case life without parole may not be disproportionate,” Chief Justice Roberts said. “If it’s a less grievous crime and there is, for example, a younger defendant involved, then in that case maybe it is disproportionate.”

The lawyers in the two cases the court heard — one involving a rape committed at 13, the other an armed burglary at 16 — had at least two answers to the chief justice’s proposal. One was that it is too soon to tell at sentencing whether unformed teenagers will later change for the better. The other was that states already take age into account but do so in very different ways.

According to a report from researchers at Florida State University, just two states, Florida and Louisiana, have imprisoned 94 of the nation’s roughly 110 juvenile offenders sentenced to die in prison for crimes in which no one was killed.

But there is a third possible retort, one that draws on the Supreme Court’s 2002 decision in Atkins v. Virginia barring the execution of the mentally retarded. That sounds like a rule, in that it made an entire class of people categorically ineligible for the death penalty. But it turns out to be a standard.

Posted by Marcia Oddi on November 23, 2009 11:09 AM
Posted to Courts in general

Ind. Gov't. - "NWI Region lawmakers balance the demands of legislative work, real jobs"

Dan Carden has a story today in the NWI Times on part-time (Indiana) vs. full-time (Illinois) legislators. Some quotes:

Service in the General Assembly is considered a part-time job. Technically, the Legislature only meets from early January through March 15 in even-numbered years and April 30 in odd-numbered years.

But special sessions, summer study committees, caucus meetings and constituent needs tend to keep lawmakers on the job year-round.

"This job is not a part-time job," said state Rep. Shelli VanDenburgh, D-Crown Point. "Somebody's always wanting to meet you, wanting you to speak somewhere. There's constituent problems that come in every day."

State Sen. Earline Rogers, D-Gary, said she used to be able to balance her career as a Gary teacher with her work at the Legislature. She would teach from September to January, take a leave of absence when session started and be back in the classroom the Monday after adjournment.

But Rogers says an intensive legislative workload and new technology making it easier for constituents to contact her have increased the time it takes to be a legislator.

"I don't know whether I could have done it as effectively when I worked as a teacher, as I can do it now, since I'm retired," Rogers said.

Last year, VanDenburgh quit her job as director of child support payments at the Lake County clerk's office to devote more time to her work as a state representative.

"I miss the money, though, from having two paychecks," she said.

State lawmakers earn about $40,000 a year. Officially the salary is $19,890, but lawmakers also receive expenses payments, called per diems, of $155 on days the Legislature is in session and $62 on other days they do legislative work, according to the Legislative Services Agency.

One advantage some see to a part-time legislature is that lawmakers are essentially forced to have other work, and that keeps them grounded in the concerns of their constituents. * * *

In contrast to Indiana, the Illinois General Assembly is considered a "full-time" legislature.

The legislative session in Illinois officially runs from January to June, with a two-week Veto Session in October.

In recent years, innumerable special sessions to address ongoing budget crises have kept the Legislature in Springfield practically year-round.

Illinois lawmakers earn about $60,000 per year, plus daily session per diems. But most earn an additional $10,000 or so for serving in leadership positions in their party or on legislative committees.

A significant difference between Illinois and Indiana is the size of a legislator's staff.

In both states, legislators share staff at the Statehouse within their chamber's party caucus.

But Illinois lawmakers also receive money to open and staff offices in their legislative districts. Indiana lawmakers do not.

Like Illinois, a number of Indiana legislators also receive leadership allowances. And they receive health benefits, and pension benefits. Notably, their pension benefits are computed on the basis of their "salary", which is defined by law as (1) salary, (2) per diem, and (3) leadership allowances. This ILB entry from March 4, 2007 and this one from Aug. 20, 2008 provides background.

For more information, here are the pages of the state budget which went into effect July 1, 2009 dealing with legislative compensation. Note however that funds for legislative pensions and health insurance are not included in these pages (please correct me if I'm wrong).

Posted by Marcia Oddi on November 23, 2009 10:07 AM
Posted to Legislative Benefits

Environment - McGrawsville Feed & Grain to $10,300 in penalties for fish kill

Daniel Human of the Logansport Pharos-Tribune has a story today that reports:

AMBOY — State environmental agencies and a Miami County agricultural company held responsible for a fish kill in 2008 have come to an agreement, representatives from each group said.

According to an agreed order adopted Nov. 4, the Indiana Department of Environmental Management fined McGrawsville Feed & Grain Inc., a bulk fertilizer storage facility, about $10,300 in civil penalties and reimbursements to the state. The company also prepared a spill response plan, per the agreement, in case there is another fertilizer leak. * * *

In April 2008, about 5,000 gallons of liquid ammonia fertilizer spilled from a rusty hole in a holding tank at McGrawsville Feed & Grain.

The fertilizer leaked into a 1.6-mile stretch of Niger Creek and part of Pipe Creek, killing an estimated 9,300 fish, according to IDEM.

It took about three days to clean up the spill.

In April, IDEM notified the company of violations [ILB - here is the NOV], including allowing the spill, failing to notify the department within the mandatory two-hour window after employees discovered the spill, not properly maintaining the fertilizer tanks and discharging fertilizer without a valid permit. * * *

Civil penalties accounted for $8,750 of the total fines. And $1,602.53 was reimbursement to IDEM “for the value of the damage to fish and wildlife,” according to the agreed order.

Phil Bloom, a spokesman for the Department of Natural Resources, said the DNR uses a formula set by the American Fisheries Society to assess the reimbursement amount.

“They put together a list of price values for various fish based on size and species,” Bloom said. “For example, if someone caused a fish kill tomorrow that had some 13-inch sturgeon in it, the price would be $72.38 [per fish]. That’s one of the more expensive fish.”

The 9,300 fish that died in the Niger Creek spill were mostly suckers and shiner minnows. The reimbursement averaged to about 17 cents per fish.

Posted by Marcia Oddi on November 23, 2009 09:53 AM
Posted to Environment

Law "Tracking sex-crime offenders gets trickier"

From today's Washington Post, some quotes from this story by Jerry Markon:

The nationwide crackdown on child pornography and other sex offenses has created severe manpower shortages and technology challenges for probation officers, police and federal agents struggling to track offenders who are jumping online with cellphones and portable game systems and flocking to social networking and other sites, where children or pornography can easily be found.

There are more than 716,000 registered sex offenders nationwide, according to the National Center for Missing & Exploited Children, a 78 percent increase since 2001, and that does not include all offenders because some crimes do not require registration. Sex-offender registries have grown even faster in the Washington area, with more than 24,000 people listed. * * *

Federal child sexual exploitation prosecutions are up 147 percent since 2002, and the Justice Department is hiring 81 more prosecutors for these cases. Funding for task forces that bring charges in state courts rose this year from $16 million to $75 million.

But many of those offenders are now leaving prison, even as revenue-strapped states are cutting the budgets of probation departments. In Virginia, probation and parole cuts this year totaled nearly $10 million, including $500,000 for electronic monitoring of sexually violent predators. Maryland also has cut its budget.

"The burden on probation and parole officers is going to explode," said Ernie Allen, the national center's president.

The monitoring of virtually all sex offenders is required by law when they are on probation or parole.

The problem has gained national attention with the discovery of 10 bodies and a skull at a registered sex offender's home in Cleveland and revelations that Jaycee Lee Dugard was kidnapped at age 11 in 1991 and allegedly held captive at a California sex offender's house until her reappearance in August. Officers had visited both homes and noticed nothing wrong.

Those cases underscore a troubled registry system that has been the public face of sex-offender monitoring. An estimated 100,000 offenders do not comply with registration requirements. Law enforcement doesn't know where many of them are.

But the most alarming development for officers is proliferating electronic gadgets and the temptations they pose to sex offenders. A man on probation in Iowa for molesting a 9-year-old girl, for example, was recently caught downloading pornographic images of a young girl on his PlayStation Portable -- while walking to his probation appointment. * * *

Sipes said officers are especially worried about social networking sites frequented by children, such as MySpace, which this year said it banned 90,000 registered sex offenders. Facebook has said it is also actively trying to prevent sex offenders from joining its site. * * *

Probation and parole officers use GPS devices, polygraph tests, home visits and treatment to track sex offenders, but those tools can be used only during periods of supervision, which often end after three to five years. Parole is post-prison, while probation is generally a sentence in lieu of prison, but the terms are often used interchangeably.

The newest trend in sex-offender management is computer monitoring, which experts said is being done by a majority of state agencies. Maryland began using monitoring software for sex offenders last month; Virginia is researching it. Most federal districts monitor computers in some form.

A monitoring program installed on an offender's computer is designed to capture every keystroke, Internet site and program, including chat and e-mail. Officials can monitor the computer remotely by logging onto a Web site or getting an e-mail if the offender does anything troublesome.

A side-bar to the story begins:

Sex-offender registries have grown dramatically this decade as prosecutors cracked down on Internet-fueled child pornography and other offenses against children. The National Center for Missing & Exploited Children says there are 716,319 registered sex offenders in the United States. That compares with about 403,000 in 2001, according to the Justice Department. The majority of registrants committed crimes against children, but other offenses, such as rapes of women, are included.

This ILB entry from Nov. 7th began:

"Keeping track of sex offenders is not easy" I thought this was a great story in the Nov. 6th Greene County Daily World, reported by Anna Rochelle. It gives a picture of all that is involved in keeping tabs on 70 sex offenders in a rural Indiana county.

Posted by Marcia Oddi on November 23, 2009 09:41 AM
Posted to General Law Related

Ind. Law - "Vanderburgh County Public Defenders caseload climbing"

Lydia X. McCoy reports today in the Evansville Courier & Press:

The Vanderburgh County Public Defenders Agency — which provides legal counsel for indigent criminal defendants — is on pace to have a record caseload this year.

As of September, 2,053 felony cases have been filed in Vanderburgh County's Superior and Circuit courts, according to numbers from the agency. Public defenders were appointed in 1,375 of those, almost 67 percent.

"The prior (record) year we had 1,722 and that was in 2007. It went down a little in 2008, and it appears to have rebounded in 2009," Chief Public Defender Steve Owens said. * * *

The agency of five full-time and 21 part-time attorneys serves clients in all areas of Vanderburgh County courts where a person is legally entitled to an attorney. Those attorneys represent clients in a number of areas, including felonies, juvenile delinquencies and misdemeanors.

A public defender is appointed when a defendant is determined to not have any funds to pay for an attorney.

Owens said some of the reasons for the higher caseload could include the economic downturn or legislative changes that have stiffened penalties for certain crimes, including ones related to domestic violence.

Owens said the agency also is reaching its limit with the number of cases its four part-time juvenile court attorneys can handle.

"Since (the state) has changed the mechanics of dealing with cases, there's been a significant increase of child in need of services and termination cases," he said. "There is only one county where the chief public defender said we're going to quit taking cases, and that was Marion County and in juvenile, that's the same thing we're having right now."

Posted by Marcia Oddi on November 23, 2009 09:36 AM
Posted to Indiana Law

Law - "Hammond Legal aid clinic sees a surge in demand"

Steve Zabroski reports today in the NWI Times in a story that begins:

Uncertain circumstances triggered by the economy have brought record numbers of residents to the Hammond Legal Aid Clinic's downtown offices for help.

The nonprofit agency just completed its fifth year of pro bono, or free, legal services, and applications for advice and demand for help with employment-related problems have increased, clinic director Kris Costa Sakelaris said.

Records the clinic keeps list more than 1,600 residents who have sought legal support since the clinic opened in 2004, with nearly 400 visiting the offices, 5261 Hohman Ave., this year.

People in the past have asked for help with family law, consumer finance and housing, Sakelaris said, but this year, problems relating to Medicare benefits, predatory lending and unemployment benefits top the list for applicants.

"It seems like we have seen more people on the brink of crisis than ever before," Sakelaris said. "Many families are not only facing some legal problem but are worried about how they will keep a roof over their head or provide the next meal."

Posted by Marcia Oddi on November 23, 2009 09:31 AM
Posted to Indiana Law

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

Updating this ILB entry from Nov. 12th, Leo Strupczewski of The Legal Intelligencer reports today in a lengthy story - some quotes:

Two former Luzerne County, Pa., judges who are facing federal criminal charges have been granted partial immunity in a civil suit brought by a class of juveniles who claim their rights were violated in the wake of the Luzerne County judicial scandal.

Writing that judicial immunity does not operate on a "sliding scale," U.S. District Judge A. Richard Caputo has ruled, in Wallace, et al. v. Powell, et al., that Michael T. Conahan and Mark A. Ciavarella Jr. are protected by immunity from facing legal action for their courtroom acts.

"The degree of corrupt behavior is not the touchstone of the immunity doctrine's application," Caputo wrote. "The doctrine holds that judges with bad intentions, as well as those with good intentions, are immune from suit." The ruling is a blow to the juveniles. * * *

While Caputo's ruling does not put an end to the litigation, it does mean that Ciavarella will escape liability "for the vast majority of his conduct in this action," Caputo said.

Ciavarella, the juvenile delinquency court judge during the time frame noted in the suit, allowed more than half of the juveniles who appeared before him to do so without representation or a proper colloquy. He is the judge who sentenced the juveniles in the suit.

Caputo wrote that he recognized his decision was "against the popular will," but defended his ruling throughout his 26-page memorandum and order.

The doctrine of judicial immunity, he wrote, is grounded in the notion that all judgments are final, judicial independence must be protected, sincere judges should be protected from continual legal action and the justice system is to be protected from falling into disrepute.

Such notions have been around since the days of Lord Coke, the former chief justice of England, Caputo wrote, and are "as valid today as they were four hundred years ago." "Subjecting judges to a determination of the existence of good faith on a case by case basis is not desirable," Caputo wrote. "It would create chaos and undermine judicial independence. It would eliminate the finality of judgments and destroy public confidence in the judiciary. Every decision by every judge would be subject to attack (in court) on the basis that it was not an honest mistake." In reaching his decision, Caputo cited four U.S. Supreme Court cases that have addressed judicial immunity in the past.

The plaintiffs, led by the Philadelphia-based Juvenile Law Center, had argued from the beginning that neither Conahan nor Ciavarella should be granted immunity because their acts were so far outside the norm.

Ciavarella's corruption, the JLC argued, was so egregious that he was not acting as a judge while he was adjudicating juveniles delinquent and sentencing them.

Caputo rejected that argument, citing the U.S. Supreme Court's 1988 decision in Forrester v. White.

In that case, the U.S. Supreme Court wrote that a judicial act "does not become less judicial by virtue of an allegation of malice or corruption of motive." Caputo continued his analysis, writing that the U.S. Supreme Court's 1978 decision in Stump v. Sparkman [which is the Indiana case] held that the question concerning judicial immunity is not related to the intent of a judge or the extent of the judge's error.

"The only question is objectively whether the alleged action is one that traditionally a judge would perform or that the parties expected would come from the judge in an official capacity," Caputo wrote.

Caputo also wrote in his opinion that both Conahan and Ciavarella still face liability -- just not as much as before.

Posted by Marcia Oddi on November 23, 2009 09:20 AM
Posted to Courts in general

The Indiana Law Blog: Catch-up: What did you miss over the weekend?

The Monday feature - "What did you miss over the weekend?"

From Sunday, Nov. 22, 2009:

• Courts - "If the lender can’t come forward with proof of ownership, and judges don’t look kindly on that, then borrowers may have a stronger hand to play in court and, apparently, may even be able to stay in their homes mortgage-free"
• Ind. Law - "Can sex offenders be cured?"
• Environment - "Pollution partners not all paragons: State recognizes 22 firms it also has fined"
• Law - "Chicago's red-light cameras don't always deter accidents"
• Ind. Courts - "Attempt to appease GOP earns slap in face"
• Law - "DNA testing has led more men to discover that their children are not biologically theirs. Families are upended, and so is the law"
• Courts - "When, whether and how defendants should be informed about the collateral consequences of pleading or being found guilty"
• Law - More on "Financial Decisions to Make as You Divorce"

From Saturday, Nov. 21, 2009:

• Ind. Courts - More on "Tippecanoe County superior court judge Michael Morrissey is one of the few Indiana judges who uses ignition interlocks"
• Courts - "Does the punishment fit the crime for child porn?"
• Ind. Courts - "Defense gets $72K for experts in Jada Justice case "
• Ind. Law - "The power of a drug containing noxious ingredients"
• Courts - "Kentucky Appeals court upholds $6.1 million strip-search verdict against McDonald's"

Posted by Marcia Oddi on November 23, 2009 06:40 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 11/23/09):

Tuesday, November 24th

• 9:00 AM - Walker Whatley v. State of Indiana - A jury found Whatley guilty of possessing cocaine in a quantity in excess of three grams within one-thousand feet of a "youth program center," a class A felony, see Ind. Code § 35-48-4-6(b)(3)(B)(iv). The Marion Superior Court entered judgment accordingly. The Court of Appeals reversed on grounds that Whatley had been near a church, not a youth program center, and directed entry of a conviction as a class C felony. Whatley v. State, 906 N.E.2d 259 (Ind. Ct. App. 5/24/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [ILB summary here - 5th case.]

• 9:45 AM - Wells Fargo Bank N.A. v. Brett Gibson - In this mortgage foreclosure action, the Marion Superior Court granted equitable subrogation to buyers of the property and their lender but denied their requests for interest and a sheriff's sale of the property. The Court of Appeals affirmed in part and reversed in part, holding that the buyers and lender were entitled to statutory interest and a sheriff's sale. Wells Fargo v. Gibson, 905 N.E.2d 465 (Ind. Ct. App. 4/28/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [ILB summary here.]

Next week's oral arguments before the Supreme Court (week of 11/30/09):

Next Thursday, December 3rd

• 9:00 AM - Luis Duran v. State of Indiana - The Lake Superior Court denied Duran's pre-trial motion to suppress evidence obtained after police entered Duran's apartment without a warrant. The Court of Appeals affirmed in Duran v. State, 909 N.E. 2d 1101 (Ind. Ct. App. 7/23/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [ILB summary of the 2-1 COA opinion here - 6th case.]

• 9:45 AM - State of Indiana v. Robert Richardson - The Marion Superior Court granted Richardson's motion to suppress evidence obtained during a traffic stop. The Court of Appeals reversed in State v. Richardson, 906 N.E.2d 263 (Ind. Ct. App. 5/22/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [ILB summary here, 2nd case.]

• 10:30 AM - Kenneth Collins v. State of Indiana - On the State's motion filed ten years after the original sentencing, the Marion Superior Court imposed additional conditions to the terms of Collins' probation. The Court of Appeals affirmed in Collins v. State, 911 N.E.2d 700 (Ind. Ct. App. 8/21/2009). Collins has petitioned the Supreme Court to accept jurisdiction over the appeal [ILB summary here, 7th case.]

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

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This week's oral arguments before the Court of Appeals (week of 11/23/09):

• No arguments scheduled.

Next week's oral arguments before the Court of Appeals (week of 11/30/09):

Next Monday, November 30th

• 10:30 AM - International Brotherhood of Electrical Workers, Local Union 1395, et al v. Indianapolis Power and Light Company (93A02-0906-EX-498) - In a 1995 settlement Indianapolis Power and Light (IPL) obtained a rate increase, part of which would fund a trust for non-pension retiree benefits. IPL continued to fund the trust for six years. When IPL was acquired by another company, it curtailed its funding of the trust and the employee benefits were cut, but it continued charging pursuant to the rate increase settlement. The Utility Regulatory Commission decided the terms of the settlement did not require continued funding, and on appeal, the IBEW and IPL dispute the effect of the language in the settlement. The Scheduled Panel Members are: Judges May, Crone and Brown. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Next Wednesday, December 2nd

• 10:30 AM - Three Little Birds, LLC., vs. Stone Manor Investment, et al (71A05-0904-CV-187) - Whether the trial court ruled that Stone Manor Investment has an implied easement by necessity for certain alleged encroachments. The Scheduled Panel Members are: Chief Judge Baker, Judges Bailey and Robb. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

• 1:30 PM - Fifth Third Bank, et al v. Kohl's Indiana, L.P., et al (82A01-0906-CV-272) - Fifth Third Bank appeals from the trial court's grant of partial summary judgment to Kohl's. In its complaint, Kohl's sought, in relevant part, to compel the Evansville-Vanderburgh Area Plan Commission to draw on letters of credit issued by Fifth Third Bank for payment to Kohl's. On appeal, the parties dispute the trial court's determination on summary judgment that: 1) the letters of credit should be treated as performance bonds, and 2) that Kohl's may make a claim against the proceeds from the letters of credit as a third-party beneficiary. The Scheduled Panel Members are: Judges Najam, Kirsch and Barnes. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Next Thursday, December 3rd

• 10:00 AM - Jennifer Mogg v. State of Indiana (29A04-0902-CR-82) - Jennifer Mogg appeals the trial court's order revoking her probation and suspended sentence. Mogg raises the single issue whether reliable evidence supports the trial court's finding she consumed alcohol in violation of her probation, when the sole evidence of her consumption was positive readings from the Secure Continuous Remote Alcohol Monitoring (SCRAM) device. 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.

Posted by Marcia Oddi on November 23, 2009 06:34 AM
Posted to Upcoming Oral Arguments