Friday, September 23, 2016
Courts - "California repeals ban on use of assembly video for political purposes" What about Indiana?
That is the headline to an item Eugene Volokh is reporting in the Washington Post's Volokh Conspiracy blog. A quote:
California Penal Code § 9026.5, ... makes it a crime to rebroadcast televised California Assembly proceedings “for any political or commercial purpose, including … any campaign for elective public office or any campaign supporting or opposing a ballot proposition submitted to the electors.”ILB: What about Indiana?
On June 9, U.S. District Court Judge Morrison England granted our request for a preliminary injunction ordering the state not to enforce the law and promised an opinion in due course. We were ready to keep on fighting to final judgment — the state had indeed been defending the law — but I’m delighted to report that yesterday Gov. Jerry Brown signed a bill repealing the prohibition.
Indiana's website includes this statement with every video:
No part of the audio or video coverage provided, including closed captioned text, may be used for commercial purposes intended to result in a profit or other tangible benefit to any person without the permission of the Legislative Council.The ILB thought there was an Indiana statutory prohibition against using videocasts for political purposes, but I'm not finding it. IC 2-5-1.1-13 covers "commercial purposes."
Except as provided in IC 2-5-1.1, audio or video coverage, including closed captioned text, does not constitute legislative history or an expression of the legislative intent, purpose, or meaning of an act enacted or a resolution adopted by the General Assembly.
IC 2-5-1.1-14 provides that legislative audio or video coverage "is not part of the legislative history of an act enacted or resolution adopted by the general assembly" except where the general assembly expressly declares otherwise.
IC 25-1.1-15 provides that legislative audio or video coverage "does not constitute an expression of the legislative intent, purpose, or meaning of an act enacted or resolution adopted by the general assembly" except where the general assembly expressly declares otherwise.
In some states, the limitations set out in IC 2-5-1.1-14 & 5 might be considered to be in violation of the constitutional separation of powers.
Ind. Decisions - Full 7th Circuit, 6-3, decides an Indiana case today, a prisoner appeal, reversing the district court, and the 7th Circuit panel
In Wayne D. Kubsch v. Ron Neal (ND Ind., Simon), a 68-page, en banc opinion, Chief Judge Wood writes:
On September 18, 1998, someone murdered three people in Mishawaka, Indiana: Beth Kubsch, Rick Milewski, and his son Aaron Milewski. Beth’s husband, Wayne Kubsch, was accused and convicted of the triple murders and sentenced to death. After direct appeals and postconviction proceedings in Indiana’s state courts, Kubsch turned to the federal court for habeas corpus relief under 28 U.S.C. § 2254. Although he raised a number of arguments in support of his petition, by now they have been distilled into one overarching question: did the state courts render a decision contrary to, or unreasonably applying, the U.S. Supreme Court’s decision in Chambers v. Mississippi, 410 U.S. 284 (1973)? The stakes could not be higher: because the state courts found Chambers inapplicable, the jury never heard evidence that, if believed, would have shown that Kubsch could not have committed the crimes. The district court and a panel of this court concluded that the state court decisions passed muster under the deferential standards imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Kubsch v. Neal (Kubsch IV), 800 F.3d 783 (7th Cir. 2015). That opinion was vacated when the full court decided to hear the case en banc. We now reverse and remand for issuance of the writ. * * *
[ILB: The en banc panel was composed of Before WOOD, Chief Judge, and POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON.
Circuit Judge HAMILTON, joined by EASTERBROOK and SYKES, dissent, beginning on p. 54.]
The Indiana courts excluded as evidence an unsworn, ex parte interview of a nine year-old witness who later disclaimed any memory of the interview. That decision did not violate petitioner Kubsch’s constitutional rights. The exclusion certainly was not an unreasonable application of “clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
To overturn Kubsch’s three murder convictions, the en banc majority has crafted a new rule so narrow and case-specific as to be good apparently only for this case: “Only if all of the factors the Court has specified, and we have described, come together must the evidence rule yield.” Ante at 34. That qualification is a red flag signaling a decision in conflict with § 2254(d)(1). True, the majority has built its argument from texts in the volumes of the United States Reports, working from Chambers v. Mississippi, 410 U.S. 284 (1973), and its progeny. But that line of cases requires careful balancing of many case specific factors, which the majority says must all point in the same direction for a rule of evidence to yield. I disagree with the majority’s new, case-specific rule, but the decisive point in this habeas case is that that new rule is not compelled by those precedents. Fair-minded judges can disagree with it. * * *
The rules of evidence, whether in codes or case law, inevitably pose a risk of excluding some reliable and probative evidence in some cases. Our criminal justice system is not infallible, but the rules of evidence have evolved to try to improve accuracy and fairness. The residual risk of error in capital cases is deeply sobering for all of us with roles in the criminal justice system. That risk offers a powerful policy argument against the death penalty. It does not provide a reason to disregard rules of evidence that apply to both sides and have been designed to ensure fair and reliable evaluation of evidence. The majority’s new, narrow, and case-specific exception is not compelled by Supreme Court precedent and does not support habeas relief here.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 9 NFP memorandum decision(s))
For publication opinions today (1):
In In Re: The Adoption of: J.S.S. and K.N.S., Rayburn and Beth Robinson v. M.R.S., a 10-page opinion, Judge Bailey writes:
B.R. and R.R. (“Foster Parents”) petitioned to adopt J.S.S. and K.N.S. (“Children”) without the consent of M.S. (“Father”). The trial court found Foster Parents had not established the clear and convincing evidence necessary to dispense with parental consent and Foster Parents filed a motion to correct error, which was substantively denied. Appealing a negative judgment, Foster Parents present a sole issue: whether the trial court’s decision is contrary to law. We affirm. * * *NFP civil decisions today (2):
Based upon their assumption that Father delayed for one and one-half years,2 Foster Parents argue that Father should be held accountable for a lack of diligence. However, our review is not one of whether a parent acted promptly or reasonably. Foster Parents were required to show, by clear and convincing evidence, Father failed to communicate “when able to do so.” I.C. § 31-19-9-8. Our review is limited to whether there was any evidence of record to support the trial court’s determination that Foster Parents failed to establish that Father had such ability. J.W., 697 N.E.2d at 481. CHINS orders and caseworker testimony support the trial court’s order.
The trial court did not clearly err in determining that Foster Parents failed to meet their burden of proof to obviate the necessity of Father’s consent to the proposed adoptions. Affirmed.
NFP criminal decisions today (7):
Ind. Gov't. - "Polluted Indy golf course could cost taxpayers $6M"
Some quotes from this long, front page story by Brian Eason in today's Indianapolis Star:
For decades, the concoction of trash, industrial chemicals and sewage sludge buried near the Whispering Hills Golf Course was out of sight, out of mind — and, as far as Indiana environmental regulators were concerned, contained.
That is, until recently. In April 2014, an Indiana Department of Environmental Management site inspection discovered the landfill cap had eroded due to natural wear and tear, compromising a critical barrier designed to prevent the toxins from escaping.
Now, Indy Parks may have to pony up as much as $6 million to install new protections for the contamination at the old Julietta Landfill, a longtime industrial dumpsite on the southeast side that the city converted into the public golf course in the early 1990s. * * *
A former pig farm, the property was leased in the 1950s to a sand and gravel company. The mining operation left huge pits in the ground when it abandoned the site in the early 1960s, and residents began dumping their household waste there illegally, according to IDEM records.
Later that decade, it was leased to a private landfill operator, and served as a dump for commercial and industrial waste until 1976, when the Indiana State Board of Health determined the site’s geology was unsuitable for use as a landfill, and the private operator voluntarily closed it. By that time it had accumulated 2.6 million cubic yards of waste, including industrial chemicals, such as glue and oil.
Later, from 1982 to 1985, the city used it to store more than 16,000 tons of sludge from a municipal wastewater treatment plant — the solid, fertilizer-like substance left over from the sewage treatment process.
And as early as 1988, the city began trying to repurpose it as a golf course.
It's not clear now, from a review of IDEM documents, why the plans went forward. But IDEM regulators warned a city consultant in 1988 that the pollution at the site was so extensive that it was under consideration to be added to the National Priorities List, an Environmental Protection Agency designation that makes it eligible for federal Superfund cleanup dollars.
In 1995 — with a landfill cap and various monitoring protocols in place — Whispering Hills Golf Course opened to the public. But under state law, the parks department, as the landowner, also took on the long-term responsibility to keep what was buried there from getting out.
Ind. Gov't. - "Knightstown, New Castle agree not to oppose Henry County wind farm development"
The ILB has a long list of entries on local regulation of wind turbines. Here is a new story from the New Castle Courier-Times, reported by Kevin L. Green, as reprinted in The Indiana Economic Digest. The story begins:
At the Knightstown Town Council’s Aug. 25 meeting, Susan Huhn, an independent candidate seeking the Henry County Commissioner southern district seat, made a presentation in which she outlined her thoughts on why commercial wind turbines should not be welcomed in Henry County. She asked the council to consider drafting and supporting a resolution denouncing wind farm development
Following discussion of the idea, council member Valerie Trump said she supported the idea of signing such a resolution and following a unanimous vote, the council instructed town attorney Gregg Morelock to prepare such a resolution for the council’s Sept. 20 meeting.
At the Sept. 20 meeting, and before the proposed resolution was presented, the council heard from Apex Clean Energy representative Brenna Gunderson. She presented information about the wind farm Apex has in mind for Henry County. Gunderson countered many of the negative claims Huhn made the previous month and answered several questions posed by council members.
Council member Trump in particular expressed concerns about the reliability of wind power, where power generated locally would go and who it would benefit, the impact turbines might potentially have on property values and the possibility the turbines would adversely impact future economic development efforts. Gunderson addressed each of those concerns, though Trump did not appear to be satisfied with the responses she received.
“We have a two mile fringe outside the town for economic development and when I look at it, you’re setting those turbines inside that two mile fringe,” Trump said.
Additional questions were raised and comments made before council president Sarah Ward said, “The commissioners are going to make the decision, is that right? It doesn’t matter what the town says anyway. ... I think if we’re smart we just keep our nose out of it. We’ve got enough problems to take care of in our own town.”
Several audience members spoke in favor of wind development in Henry County, which was just the opposite of what happened at the council meeting a month prior.
Ind. Gov't. - Kentucky's Governor and Attorney General are of opposite parties, what could go wrong?
Bill Chapell of WBOI.org, a Kentucky NPR station, reported yesterday afternoon in a story headed "Kentucky Governor Can't Cut Universities' Budgets, Court Rules," in a story that begins:
Ruling on a lawsuit filed by a state's Democratic attorney general against its Republican governor, the Kentucky Supreme Court says Gov. Matt Bevin doesn't have the authority to unilaterally slice money out of a state university's budget.More from the story:
Weeks after Bevin took office, he called for 4.5 percent cuts across much of Kentucky's budget — and when the politically divided state legislature didn't embrace those mid-year cuts, Bevin issued an order imposing them on the university and community college system at the end of March.
In the majority's 50-page opinion that both affirms the attorney general's right to sue the governor and reverses the governor's budget decree, the Kentucky Supreme Court wrote, "the Governor cannot order the boards of the Universities not to spend funds appropriated to them."
Ind. Decisions - 7th Circuit decided one Indiana case yesterday, re claim of overtime under FLSA
In James Melton v. Tippecanoe County, Indiana (ND Ind., Springmann), an 11-page opinion, Judge Kanne writes:
After he disregarded an order from his supervisor that he could not change his schedule to make up for missed time, Plaintiff James Melton was discharged from his job at the Tippecanoe County Surveyor’s Office. Melton later filed suit against the County, alleging that dur‐ ing his time there, he had arrived early and worked through lunch every day and was not compensated for overtime in violation of the Fair Labor Standards Act. The district court granted summary judgment to the County because Melton had not designated sufficient evidence to find that he worked more than forty hours in a workweek. We affirm. * * *
In his complaint, Melton alleged that his timecards did not accurately reflect the hours he worked because when he put his actual time worked on his timecard, the office secre‐ tary would reduce his hours to 37.5, telling him that he could not be paid for more than 37.5 hours in a workweek. Specifi‐ cally, Melton claimed that he was not compensated for (1) time worked before 8 a.m. even though his supervisor told him to come to work early every day and (2) time worked through all or part of his floating lunch each day.
In support of his claim that he was not properly compen‐ sated, and in response to discovery requests, Melton pro‐ duced a spreadsheet created from memory that purports to show the dates and times he worked during the whole of his employment with Tippecanoe County. * * *
As we explained earlier, even if Melton had put forth his evidence supporting his claim of overtime lunch hours, his testimony by spreadsheet is so “internally inconsistent [and] implausible on its face” that it cannot satisfy Melton’s bur‐ den to establish a prima facie FLSA case. Seshadri, 130 F.3d at 802. Melton knew that the County was arguing that his rec‐ ollection and spreadsheet were “unreliable,” and he certain‐ ly had a meaningful opportunity to address that argument. Instead, he deemed it “premature.” It was not, and neither was the district court’s grant of summary judgment.
Thursday, September 22, 2016
Ind. Decisions - 7th Circuit decides Soccer Labor Dispute
In United States Soccer Federation v. United States National Soccer Team Players Ass'n (ND Ill.), a 22-page opinion, Judge Kanne writes:
Soccer is called “the beautiful game,” but the collective-bargaining process behind the sport can be ugly. This case matches Plaintiff United States Soccer Federation, Inc. (“US Soccer Federation”), the national governing body for soccer in the United States, against Defendant United States National Soccer Team Players Association (“Players Association”), the labor union for members of the Men’s National Team, in a dispute over their current collective bargaining agreement (“CBA”) and uniform player agreement (“UPA” and collectively with CBA, “CBA/UPA”).
The present case kicked off in 2013, when the Players Association disapproved the US Soccer Federation’s proposed tequila poster advertisement, which contained player images. Counterattacking, the US Soccer Federation issued a notice, declaring that the CBA/UPA does not require Players Association approval for use of player likenesses for six or more players in print creative advertisements by sponsors, based on the express terms of the agreement. Crying foul, the Players Association filed a grievance and demanded arbitration, arguing that the CBA/UPA does require this, based on the past practice of the parties.
The arbitrator issued an award in favor of the Players Association. The district court confirmed the arbitrator’s award and granted summary judgment for the Players Association. The US Soccer Federation appealed. We reverse. * * *
In conclusion, we recognize that a goal of arbitration is to provide the parties with “swift, inexpensive and final decisions,” but “this does not vitiate judicial review of an arbitrator’s decision.” Anheuser-Busch, 280 F.3d at 1144. Here, just as the parties agreed to arbitration, they also agreed “to limit the arbitrator’s authority and preserve their right to challenge decisions when the arbitrator had reached out and rendered a decision that stray[ed] beyond his delegated authority and is barred by the negotiated contract.” Id.
For the foregoing reasons, the judgment of the district court is REVERSED. This case is REMANDED with instructions to VACATE the award of the arbitrator and enter judgment in favor of the US Soccer Federation.
Ind. Gov't. - "Are Fishing and Hunting a Right or a Privilege? Indiana and Kansas Will Decide"
That is the heading to a September 22nd story in Governing, by J.B. Wogan, that reports:
Voters typically pass right-to-hunt-and-fish measures with large margins, and only one state's voters -- Arizona -- have rejected such an initiative, according to the National Conference of State Legislatures.Currently 19 states have the ban in their constitutions.
See also this longer ILB post from yesterday.
Courts - "Supreme Court Justices Won’t Answer Questions About Their Health"
Tony Mauro has just posted this interesting article at Law.com. A few quotes:
The intense debate over how transparent presidential nominees Hillary Clinton and Donald Trump should be about their health gives rise to another question: What about the health of Supreme Court justices?Later in the lengthy article:
After all, the average age of the justices is 69—right between Clinton, who is 68, and Trump, who is 70. And the most extensive medical information about a Supreme Court justice that has been made public pertains to Antonin Scalia—though it was revealed after he died in February.
But the high court marches to its own tune. So when Law.com asked all eight current justices to make public their health statuses earlier this month, a single response came back from Chief Justice John Roberts Jr. this week. His answer, in effect, was: “Thanks for asking, but we’ll release information about our health when we feel the public needs to know.”
Concern over the lack of health information about the court predated the recent squabble between Clinton and Trump over their health disclosures. For some, Scalia’s death on Feb. 13 at a Texas hunting resort justified why justices should be more forthcoming.
It was not until after Scalia’s death that the public learned, through a letter from the attending physician of Congress that Scalia had “many chronic medical conditions,” including high blood pressure, diabetes, chronic obstructive pulmonary disease, obstructive sleep apnea and coronary artery disease. Dr. Henry Monahan, whose office treated Scalia for 29 years, wrote the letter to the Texas judge who was assessing the cause of Scalia’s death, and the letter was made public only through a public records request under Texas law.
“Think about how much we learned about Scalia’s health after his death,” said court scholar David Garrow, professor at the University of Pittsburgh School of Law. “It was much worse than we knew.”
George Washington University Law School associate dean Alan Morrison, a longtime court-watcher, said that, if Scalia’s ailments had been publicly known before his death, the justice might have felt compelled to retire, resulting in a “more orderly succession.”
Law - "How The State Bar Of Michigan Is Embracing Technology"
A good article by Nicole Back at Above the Law. A sample:
[The Michigan] Bar established a “21st Century Task Force” with 5 enumerated goals: 1) increase transparency in the legal marketplace, 2) provide better practical skills training for lawyers, 3) use technology to decrease the complexity of legal processes, 4) modernize the rules of professional responsibility, and 5) reduce law firms’ cultural resistance to innovation.
Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 11 NFP memorandum decision(s))
For publication opinions today (0):
NFP civil decisions today (1):
NFP criminal decisions today (10):
Ind. Courts - "Clark County chief public defender says she was asked to resign"
From the Clark Co. News & Tribune, a story by Elizabeth DePompei that begins:
Clark County Chief Public Defender Amber Shaw said her position with the county is "still up in the air."
A job posting for Shaw's position was posted at the Clark County Government Center on Friday, Sept. 16, with applications due by Wednesday. The posting came less than three months after Shaw was hired by the Clark County Public Defender Board.
Board president Jennifer Culotta and members Ann Pfau and Mark Robinson have not returned multiples messages left last week and Wednesday. According to Shaw, the board asked her to resign from the chief public defender position during a public board meeting Sept. 15.
"I was stunned," Shaw said. "I wasn't given a reason … just that it was in the best interest of the county and the public defender's office, and that's all I’ve been told."
Ind. Gov't. - Interim Study Committee on Courts and the Judiciary today
The Interim Study Committee on Courts and the Judiciary will hold its second meeting of the interim at 1:30 today, September 22nd, in Room 404 of the Stathouse.
Its first meeting, held August 30th, was devoted to civil rights issues related to gender identity and sexual orientation.
Today's agenda lists:
1. Requests for new courts or changes to existing courts.You may watch the meeting live here.
2. Update on the conversion of commissioners to magistrates in Marion County.
3. Visitation, communication, and interaction with a protected person.
Wednesday, September 21, 2016
Ind. Decisions - 7th Circuit decides one Indiana case today, denying do-over of 2014 Marion County Superior Court primary
In Gregory Bowes v. Indiana Secretary of State (SD Ind., Young), a 16-page opinion, Judge Young writes:
Plaintiffs Gregory P. Bowes and Christopher K. Starkey lost in the May 2014 Democratic pri mary election for Marion County Superior Court judges. A few months later, and just before the general election, the district court for the Southern District of Indiana held that the statute establishing the system for the election of such judges, Indiana Code § 33–33–49–13, was unconstitutional. That decision was affirmed by this Court. Plaintiffs then sought a special election, which they argued was the only way to vindicate their constitutional rights. The district court held that a special election was not appropriate and granted defendants’ motion for summary judgment. For the reasons that follow, we agree and affirm. * * *
In sum, the district court was within its discretion to conclude that plaintiffs’ request for relief was not timely and that the state’s significant interest in governing without disruption outweighed plaintiffs’ interest in being placed on the ballot.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 12 NFP memorandum decision(s))
For publication opinions today (2):
In Andre C. Coleman v. State of Indiana, a 9-page opinion, Judge Mathias writes:
Following a bench trial in Marion Superior Court, Andre Coleman (“Coleman”) was convicted of Class B misdemeanor public intoxication. He was ordered to serve 365 days in jail with 363 days suspended to probation. Coleman presents two issues on appeal, which we restate as whether the trial court abused its discretion in imposing a supplemental public defender fee, probation fees, and a drug and alcohol treatment fee.In Charles R. Cole, III v. State of Indiana, an 11-page opinion, Sr. Judge Barteau writes:
We vacate the imposition of the supplemental public defender and probation fees and remand for proceedings consistent with this opinion. * * *
Based on the record, we conclude that the trial court did not impose a supplemental public defender fee or any of the other probation fees reflected on Coleman’s case transaction summary. The imposition of these fees appears to be an error by the probation department. We therefore vacate these fees and remand to the trial court to hold an indigency hearing. Further, if the trial court concludes that Coleman is not indigent, it should order Coleman to pay a $150 alcohol and drug services fee.
Cole raises one issue, which we restate as: whether the post-conviction court erred in rejecting his claim of ineffective assistance of trial counsel. * * *NFP civil decisions today (6):
Cole argues the post-conviction court erred by rejecting one of his claims of ineffective assistance of trial counsel. Specifically, he contends his attorneys should have objected to the State’s amendment of the charging information to add an additional count of robbery because the amendment was untimely. The State responds that the prosecutor was allowed under then-existing caselaw to file the amendment, so Cole’s counsel did not render ineffective assistance by declining to object. * * *
Cole has failed to establish that the post-conviction court erred. For the reasons stated above, we affirm the judgment of the trial court.
NFP criminal decisions today (6):
Ind. Courts - Court of Appeals hears dispute over "who owns the Lake Michigan beach?"
Dave Stafford of The Indiana Lawyer has good coverage today of the September 8th Court of Appeals oral argument in Don Gunderson, et al, v. State of Indiana, et al. The argument apparently was not covered by any other news service.
Courts - More on: Illinois wine shipping law challenged in federal court
Updating this ILB post from September 6th, Wine Speculator has a long story today by Ben O'Donnell on the lawsuit filed in federal court in Chicago suing the State of Illinois "over its regulations hampering out-of-state wine sellers." A Fort Wayne wine retailer is among the plaintiffs. Some quotes:
The book on modern direct-to-consumer wine-shipping law was written at the U.S. Supreme Court in 2005 with the Granholm v. Heald decision. Now, wine retailers are hoping to write their own chapter in the story. Earlier this month, lawyers filed a complaint in a federal court, arguing that an Illinois prohibition on retailer-to-consumer direct shipping is unconstitutional. The same firm is preparing a similar complaint in Missouri.ILB: Here is a long list of earlier ILB posts on wine shipping.
The Illinois suit, filed on Sept. 1, named Lebamoff Enterprises, Inc. et al v. Rauner et al, states that Irwin Berkley, a Chicago-area resident, wants to buy "wines that are sold-out in Illinois but are still available from retail stores in other states, older vintage wines and limited-production allocated wines" and have them shipped to his home from Cap n' Cork, a chain of Indiana stores owned by fellow plaintiff Lebamoff Enterprises, but cannot.
"We think that the principles of Granholm apply to retailers just as well," Robert Epstein, lead counsel for the plaintiffs, told Wine Spectator. "And we're going to test it." * * *
Lebamoff comes just after Illinois tightened its prohibition on out-of-state wine retailers. On Aug. 26, Gov. Bruce Rauner signed a new law stiffening penalties against out-of-state parties for shipping wine into the state without the necessary licenses. Even small-scale shipments of wine could be prosecuted as a Class 4 felony, which carries a potential one- to three-year prison sentence.
Ind. Gov't. - "Hoosiers to vote on hunting rights this fall"
Maureen Hayden, CNHI State Reporter, takes a good look today at the constitutional amendment that will appear on November's ballot. Some quotes from the story published in the Terre Haute Tribune Star:
Voters this fall may enshrine a right to hunt and fish in the same article of the state Constitution that protects freedom of speech and the right to a speedy trial.ILB: Notably, this proposed addition to the Bill of Rights reads much like a statute. But if ratified, it will be part of Indiana's Constitution and rules of constitutional interpretation will apply. Among these is the ability of the courts to examine the drafters' intent, just as they look to the 1850 Indiana Constitutional Debates when construing other provisions of our constitution.
Included on the same ballot on which Hoosiers will pick the next president and governor is Public Question 1, which asks if they want to “forever preserve” the right to harvest the state’s wildlife.
If voters approve the so-called Right to Hunt and Fish amendment, Indiana will join 19 other states that have enshrined similar language in their constitutions as part of an effort spearheaded by the National Rifle Association. * * *
“No one’s rights are under attack,” said Erin Huang, head of the Humane Society’s Indiana chapter.
She said the measure, once locked into the Constitution, could complicate the management of the state’s wildlife and open the state to lawsuits against hunting restrictions, such as limits on deer season.
In addition to declaring a right to hunt, fish and harvest wildlife, the amendment says “hunting and fishing shall be a preferred means of managing and controlling wildlife.” * * *
For 20 years, the NRA has worked with state legislatures on similar measures, saying they're needed to stave off well-funded efforts by national animal advocacy groups to ban hunting. * * *
The full text of Public Question 1 on this fall's ballot, the proposed "Right to Hunt and Fish" amendment, reads:Article 1 of the Constitution of the State of Indiana is amended by adding a new section to read as follows:
Section 39. (a) The right to hunt, fish, and harvest wildlife:(1) is a valued part of Indiana's heritage; and(b) The people have a right, which includes the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to the laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly to:
(2) shall be forever preserved for the public good.(1) promote wildlife conservation and management; and(c) Hunting and fishing shall be a preferred means of managing and controlling wildlife.
(2) preserve the future of hunting and fishing.
(d) This section shall not be construed to limit the application of any provision of law relating to trespass or property rights.
[More] The ILB has been writing about this since 2005 - see the long list.
Tuesday, September 20, 2016
Ind Courts - Tippecanoe County Courthouse dome encased in scaffolding
Here is the scaffolding photo, from this story today by Dave Bangert in the Lafayette Journal & Courier, headed "A climb to top of the courthouse dome." There is also a video and many more photos. Some quotes:
Tippecanoe County commissioners on Tuesday, Sept. 20, 2016, scaled the scaffolding around the Tippecanoe County Courthouse dome to pick paint colors and to take in the progress of a $3.5 million restoration project. * * *
“I’m not a big fan of heights, but so far I’ve been OK, so these guys should be OK, too,” said Greg Helms, a senior project manager with Kettelhut Construction. “It is a pretty amazing place to be. I still take pictures when I’m up here.”
Commissioners did the same, steeling any nerves and holding tight to railings with one hand and squeezing smartphones with the other to get photos that looked down on the 10-story Centier Bank building a block away. From Lady Justice’s level, the view stretched beyond Purdue University to the west and traced the Wabash River beyond the Sagamore Parkway bridge to the north.
Ind. Gov't. - Could Indiana change how its legislative districts are drawn?
Dan Carden reports in the NWI Times on the "penultimate meeting Monday [of] the state’s two-year Special Interim Study Committee on Redistricting." The story begins:
It appears likely that Hoosier lawmakers next year at least will consider putting a citizen commission in charge of the once-a-decade process of redrawing legislative district boundaries.
Ind. Gov't. - Legislative committee to look at administrative adjudiciation tomorrow
The Interim Study Committee on Corrections and Criminal Code will hold its first meeting of this interim tomorrow, September 21st.
The agenda indicates that the meeting will be focused on administrative law, with staff reports on central administrative law panels, testimony from the AG's office on the Indiana administrative law process, and testimony of attorneys practicing before administrative adjudicative entities.
The Committee will also hear from Senator Steele, who authored SEA 1, which created the Administrative Law Study Commission. That Commission is/was to send a final report to the Legislative Council by Nov. 1, 2016.
You may watch it live here, at 1:30, Room 4040 of the Statehouse.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 5 NFP memorandum decision(s))
For publication opinions today (2):
In State Farm Mutual Automobile Insurance Company v. Sean Woodgett, a 16page opinion, Judge Brown writes:
State Farm Mutual Automobile Insurance Company (“State Farm”) appeals the trial court’s order on verdict and judgment in favor of Sean Woodgett. State Farm raises three issues, one of which we find dispositive and which we revise and restate as whether the court abused its discretion in excluding certain evidence. We reverse and remand. * * *In Christina Schermerhorn v. State of Indiana, a 17-page opinion, Sr. Judge Sharpnack writes:
The dispositive issue is whether the trial court abused its discretion in excluding evidence of the second automobile accident. We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. * * *
State Farm argues that evidence of the second accident was admissible to inform the jury as to a possible cause of Woodgett’s migraine headaches and that the court abused its discretion in excluding this evidence, ruling that it “was not admissible because it was not supported by any expert medical testimony to demonstrate a connection . . . .” * * *
The court abused its discretion when it excluded evidence of a second automobile accident involving Woodgett, which was inconsistent with substantial justice. We reverse the court’s judgment and remand for proceedings consistent with this opinion. * * *
For the foregoing reasons, we reverse the court’s judgment and remand.
Schermerhorn argues the trial court should have allowed her to present to the jury the August 2011 audio recording of Stanley choking his teenage son in her presence, along with her testimony about the incident. She further contends the court’s error deprived her of her right to present a defense under the federal and state constitutions. The State responds that Schermerhorn’s evidence was inadmissible under Indiana’s Rules of Evidence and, as a result, her constitutional rights were not violated. * * *NFP civil decisions today (3):
Pursuant to Indiana Code section 35-31.5-2-109, the “past course of conduct” is limited to “repeated physical or sexual abuse” of the defendant by the victim. The statutes do not address acts by the victim against third parties in the defendant’s presence.
Based on the statutory language, we cannot conclude that the recording of Stanley purportedly choking his teenage son two years before the crimes at issue was relevant to Schermerhorn’s effects of battery defense. * * *
In any event, even if the recording should have been admitted, the error was harmless. An error in the exclusion of evidence is harmless if its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect the defendant’s substantial rights. * * *
Schermerhorn argues the trial court should have given her proposed jury instructions on the effects of battery. The State claims in response that the court’s instructions correctly stated the law.
NFP criminal decisions today (2):
Ind. Gov't. - "To Work on Parole Boards, No Experience Necessary"
That is the heading to this article in the September issue of Governing, written by Katherine Barrett & Richard Greene. The intro:
The people who decide criminals’ freedom are often ill-equipped to make informed decisions. That’s where risk assessment tools come in, but they aren't always used.Here is the website of the five-member Indiana Parole Board. IC 11-9-1-1 requires that to qualify for membership, a person must have at least a bachelor's degree, or 10 years of law enforcement experience. In addition, the person "must have the skill, training, or experience to analyze questions of law, administration, and public policy." Members shall devote full time to their duties.
Monday, September 19, 2016
Ind. Courts - Commercial courts and e-filing focus of Supreme Court symposium on Sept. 27
As first reported in more depth in this Sept. 2nd post:
The Indiana Supreme Court is hosting a Continuing Legal Education (CLE) symposium to provide information about commercial courts and e-filing.There is no indication that the event will be videocast and archived, although access to the seminar could be very beneficial to lawyers, business people, and others throughout the state who may not be able to travel to Indianapolis next Tuesday, and who are not in need of CLE credits.
General counsel from Indiana businesses, lawyers, lawyer-legislators, and other business leaders are invited to the 90-minute learning opportunity.
The event will take place on Tuesday, September 27 at 2:00 p.m. EDT at the State House in the Indiana Supreme Court Courtroom.
Ind. Courts - More on "Breaking the code on a Chicago mystery from WWII"
Updating this ILB post from Sept. 16th on the 7th Circuit's 2-1 decision last Friday in Elliot Carlson v. USA, John Keilman reported in the Chicago Tribune last Friday in a long story headed "Secret papers from WWII espionage probe of Tribune could go public," that began:
Te Battle of Midway was still raging in the Pacific Ocean when a bombshell of a different sort exploded on the front page of the Chicago Tribune: The U.S. Navy, the newspaper reported, had obtained advance knowledge of what the Japanese fleet was going to do.
The story, published June 7, 1942, was awash in detail, naming the Japanese vessels involved in the battle and the strategy they were pursuing. Anyone reading the account could have gleaned an unstated but critical piece of information — America had cracked Japan's naval code.
That set off a furious legal fight in which the federal government tried to prosecute Tribune journalists for violating espionage laws. A prosecutor even impaneled a grand jury to seek a criminal indictment.
The grand jury ultimately decided not to indict the journalists, but for 74 years, the testimony that led to that decision has remained under wraps. Now a Maryland historian is closer than ever to revealing those secrets, only to face the opposition of a familiar foe — the federal government.
Ind. Gov't. - "Indiana yet to get high on idea of legalized marijuana "
That is the headline to Mauureen Hayden's story this weekend in the Kokomo Tribune. The long story begins:
State legislatures across the nation seem to be increasingly high on the idea of legalizing marijuana for recreational or medicinal use.
Lawmakers in eight states have cleared the way for November ballot initiatives to allow voters to weigh in on a variety of pot initiatives — potentially making 2016 the most expansive year for marijuana yet.
Indiana isn’t among them — and likely won’t follow that path anytime soon.
“Too many legislators are still afraid of it,” said state Sen. Karen Tallian, the Democratic legislator/grandmother/attorney who has tried for years to get her fellow lawmakers to hear her pot-related bills.
Courts - NYT editorial on risk-based scoring for release without bail
The NY Times had an interesting editorial Sept. 16th headed "A Formula to Make Bail More Fair." Some quotes:
San Francisco has introduced a new scoring system to help judges determine bail based on a defendant’s risk of committing another crime or failing to appear in court. * * *ILB: For information on the recently instituted Indiana bail-reform process, start with this post from Sept. 9th.
The new scoring system, developed by the Laura and John Arnold Foundation, uses nine factors to estimate risk, including a defendant’s age, whether the charge is a violent offense, prior convictions and previous failures to appear in court. It does not take into account race or gender, and judges still have the final say in setting bail.
This tool is in use in about 30 other cities and states, several of which have seen encouraging results. After Lucas County, Ohio, which includes Toledo, began using the Arnold Foundation tool, the share of defendants released without bail rose to 28 percent from 14 percent. The percentage arrested while out on bail fell to 10 from 20, and the percentage who failed to show up for trial dropped to 29 from 41. The number of people jailed in Mecklenburg County, N.C., dropped by 20 percent in the year after the county began using the tool. Crime did not increase. * * *
The use of scoring systems in criminal justice has raised concerns in the past. An analysis by ProPublica showed that an algorithm developed by the company Northpointe to aid in sentencing decisions wrongly predicted that black defendants would commit future crimes almost twice as often as it made the same mistake with white ones. While any algorithm that relies on criminal history could replicate inequalities in the criminal justice system, the places using the Arnold system have not found the same race-based problems.
It is too soon to tell how the new bail system will perform in San Francisco; some lawyers have expressed skepticism. The courts will have to make sure it does not disproportionately penalize minority defendants.
Ind. Decisions - "COA: Woman's convictions must be 'expunged'"
PORTLAND – A state appeals court has ordered Jay Circuit Court Judge Brian Hutchison to expunge a former Dunkirk woman's convictions for dealing in methamphetamine and forgery.
In a ruling last Nov. 13, Hutchison declined to expunge records of the prosecution of Mindy M. McCowan, who was 22 when she was convicted of forgery in August 2003 and 23 when she pleaded guilty to dealing in meth in September 2004.
At a hearing a day earlier, Hutchison had told McCowan he didn't “have any fond memories of you... (and) your criminal behavior.”
The judge focused in part of McCowan's meth-related conviction.
“Putting it bluntly, it's a pain in my ass,” Hutchison said. “I have (to) deal with meth and heroin every damn day here, and I've... I've had a belly full. I'm not doing favors for people who are causing these problems in Jay County.”
In a 2-1 ruling last week, the Indiana Court of Appeals said “the trial court abused its discretion,” adding that "all evidence presented... mitigate toward expungement."
McCowan was released from prison in 2007 and completed probation in 2010. She has since maintained employment and earned an associate's degree and professional certifications, according to the ruling.
In that majority opinion, Judge L. Mark Bailey wrote that Hutchison's “articulation of (his) evaluative process to be particularly troubling.”
Ind. Decisions - Transfer list for week ending September 16, 2016
Here is the Clerk's transfer list for the week ending Friday, September 16, 2016. It is two pages (and 21 cases) long.
Three transfers were granted last week:
- Kyle Bess v. State of Indiana - this was a June 15, 2016 NFP COA opinion. The Supreme Court granted transfer, with opinion, on Sept. 14, 2016. See the ILB's summary here.
- Trondo L. Humphrey v. State of Indiana - this was a June 23, 2016 COA opinion:
"Trondo L. Humphrey appeals the denial of his petition for post-conviction relief. As his trial counsel’s assistance was ineffective and his petition is not barred by laches, we reverse and remand.
- City of Lawrence Utilities Service Board, et al. v.
Carlton E. Curry - this was a June 8, 2016, 2-1 COA opinion where the majority held:
We find as follows: (1) the mayor had authority to terminate Curry’s employment; (2) as such, Curry has no right to prevail on an intentional interference with employment relationship claim; and (3) Curry is not entitled to recover under the Wage Payment Statute. We reverse the judgment of the trial court with respect to the wrongful discharge and intentional interference with employment relationship claims and remand with instructions to enter summary judgment in the Government’s favor on those two counts. We affirm the trial court’s order with respect to the Wage Payment Statute count.
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 9/19/16):
Thursday, September 22
- 9:00 AM - Mark Leonard v. State of Indiana (71S00-1509-LW-00539) After a change of venue from Marion County, a jury trial was held in the St. Joseph Superior Court, where Leonard was convicted of murdering two people, conspiracy to commit arson, and multiple counts of arson. Leonard received a sentence of life imprisonment without parole and a term of years. In this direct appeal, Leonard challenges his convictions and sentences.
ILB: Notice that the Court granted a motion to allot one hour for oral argument.
- 10:05 AM - Andrew Shotts v. State of Indiana (49A04-1509-CR-01347) After a bench trial, the Marion Superior Court convicted Andrew Shotts of unlawful possession of a firearm by a serious violent felon. The Court of Appeals affirmed, holding, among other things, that police did not detain Shotts in violation of his rights under the Fourth Amendment. Shotts v. State, ___ N.E.3d ___, 2016 WL 1664980 (Ind. Ct. App. Apr. 27, 2016). Shotts has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: this is an April 27, 2016 COA opinion (3rd case in list of ILB summaries)
- 10:50 AM - Kennedy Tank & Mfg. Co., Inc., and Hemlock Semiconductor v. Emmert Industrial Corporation, d/b/a Emmert International (49S02-1608-CT-00431) Kennedy Tank hired Emmert Industrial to transport a piece of equipment from Indiana to Tennessee. Emmert Industrial sued Kennedy Tank to collect additional expenses it incurred. The Marion Superior Court denied Kennedy Tank’s motion to dismiss the complaint. The Court of Appeals reversed, holding a federal statute establishing an eighteen-month period to file an action to collect interstate transportation charges preempts Indiana’s longer statute of limitations and bars Emmert Industrial’s complaint. Kennedy Tank & Mfg. Co., Inc. v. Emmert Indus. Corp., 53 N.E.3d 505 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 2-1, April 22, 2016 COA opinion, holding:
The Indiana statute of limitation [10 years] on which the trial court appears to have relied is preempted by a federal statute establishing a shorter limitations period [18 months]. As Emmert did not bring its lawsuit within that period, Kennedy’s motion should have been granted, and we must therefore reverse.
Next week's oral arguments before the Supreme Court (week of 9/26/16):
- No oral arguments currently scheduled.
This week's oral arguments before the Court of Appeals (week of 9/19/16):
- No oral arguments currently scheduled.
Next week's oral arguments before the Court of Appeals (week of 9/26/16):
- No oral arguments currently scheduled.
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.Past Court of Appeals oral arguments which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Friday, September 16, 2016
Ind. Courts - "Judge sharply questions defense of Indiana's Syrian refugee ban"
Updating a long list of earlier ILB posts on the State's ban of Syrian refugees, Stephanie Wang today has a blow-by-blow account of much of Wednesday's oral argument before the 7th Circuit on a challenge to the ban, brought by the ACLU of Indiana.
You may listen to the oral argument for yourself via this link. The first voice you hear will be Judge Posner, the other two judges are Easterbrook and Sykes.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 12 NFP memorandum decision(s))
For publication opinions today (2):
In Jerry Arnold d/b/a Arnold's Jewelry and Gifts, Inc. v. Marcellus Long, Jr., Marcellus Long, Jr., P.C. a/k/a Law Office of Marcellus Long, P.L.L.C., and Hatchett Dewalt & Hatchett, P.L.L.C., et al., a 16-page opinion, Judge Riley writes:
Appellant-Plaintiff, Jerry Arnold d/b/a Arnold’s Jewelry and Gifts, Inc. (Arnold), appeals the grant of a motion to dismiss made by AppelleesDefendants, Marcellus Long Jr.; Marcellus Long Jr. P.C. a/k/a law office of Marcellus Long PLLC (Long); and Hatchett DeWalt & Hatchett PLLC (Hatchett DeWalt) (collectively, Appellees). We affirm.In Bradley Starr by Next Friend Heather Starr-Haller and Heather Starr-Haller v. State Farm Automobile Insurance Company and the Indiana Bureau of Motor Vehicles, a 13-page opinion, Judge Najam writes:
Arnold raises three issues on appeal, one of which we find dispositive and restate as: Whether the trial court properly dismissed Arnold’s Complaint for lack of personal jurisdiction. * * *
As noted, the reasonableness of exercising jurisdiction over a defendant is determined by weighing five factors, namely (1) the burden on the defendant; (2) the forum State’s interest in adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenience and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several States in furthering fundamental substantive social policies. See LinkAmerica, 857 N.E.2d at 967. * * *
Overall, we conclude that exercising jurisdiction over the Appellees would offend notions of fairness and reasonableness. Accordingly, the trial court properly dismissed Arnold’s Complaint for lack of personal jurisdiction.
In light on the foregoing, we conclude that the trial court properly dismissed Arnolds’ Complaint for lack of personal jurisdiction.
Heather Starr-Haller, on behalf of herself and her minor son, Bradley, appeals the trial court’s entry of summary judgment for State Farm Mutual Automobile Insurance Company (“State Farm”) on Starr-Haller’s complaint. Starr-Haller raises a single issue for our review, namely, whether the trial court erred when it entered summary judgment for State Farm. We affirm. * * *NFP civil decisions today (2):
In sum, the undisputed designated evidence shows that State Farm did not waive its right to deny Starr-Haller the coverage she now claims. The undisputed designated evidence likewise shows that State Farm is not estopped from denying her that coverage. Accordingly, State Farm met its burden to demonstrate that it is entitled to judgment as a matter of law, and Starr-Haller has failed to designate evidence to create a genuine issue of material fact on her claims against State Farm. Thus, we affirm the trial court’s entry of summary judgment for State Farm.
In Kathy Phariss, Clara Phariss by Next Friend of, Kathy Phariss v. Sara Haynes, Rick Doepping Personally and d/b/a Shangri-La Farms (mem. dec.), an 11-page, 2-1 opinion reversing the trial court, Judge Barnes writes:
Clara Phariss and her mother and next friend Kathy Phariss appeal the trial court’s order setting aside a default judgment against Sara Haynes. We reverse and remand.Phillip David Long and Kathy Long v. Michael J. Lopez (mem. dec.)
The sole issue is whether there was a sufficient evidentiary basis for the trial court to set aside the default judgment * * *
Doepping/Shangri-La Farms contend that the unverified statements contained within the motion to set aside should have been sufficient to have the default judgment vacated. They argue that requiring a movant to present some admissible evidence to support a motion to set aside default judgment constitutes a re-writing of Trial Rule 60(B) and that the rule does not expressly contain any such requirement. Regardless, the rule has been consistently interpreted for decades by the courts of this state to have such a requirement. See, e.g., Bross, 466 N.E.2d at 469. The Indiana Supreme Court has never questioned that interpretation or the requirement that a motion to set aside default judgment must be supported by some quantum of admissible evidence. We continue to adhere to that requirement today. Because Haynes did not support her motion to set aside with any admissible evidence, the trial court abused its discretion in setting aside the default judgment.
Conclusion. The trial court abused its discretion in setting aside the default judgment in favor of the Pharisses and against Haynes. We reverse the granting of that motion and remand for further proceedings.
Riley, J., concurs.
Bailey, J., concurs and dissents with separate opinion. [that begins at p. 8] I concur with the majority’s conclusion that because Haynes failed to support her motion with admissible evidence of excusable neglect, the trial court abused its discretion in setting aside the default. However, because the measure of damages in this case was not certain and liquidated, the trial court should have held a damages hearing before entering judgment in the sum of $50,000. Accordingly, I would reinstate the entry of default, but would set aside the damages portion of the judgment and on remand instruct the court to hold a damages hearing at which Haynes may appear and defend.
NFP criminal decisions today (10):
Ind. Courts - "What Is Notre Dame’s Police Force Hiding From ESPN?"
Ind. Courts - "Breaking the code on a Chicago mystery from WWII"
Yesterday, in Elliot Carlson v. USA, a fascinating 2-1, 34-page opinion authored by Chief Judge Wood, with Judge Sykes in dissent, the ruling begins:
During World War II, the U.S. Office of War Information warned the populace that “loose lips sink ships.” See The Phrase Finder, http://www.phrases.org.uk/ meanings/237250.html (last visited Sept. 15, 2016). But what if the ships sailed some 70 years before the tongues wag? That is the problem we face in the present case, in which Elliot Carlson, along with a number of scholarly, journalistic, and historic organizations, seeks access to grand-jury materials sealed decades ago. The materials concern an investigation into the Chicago Tribune in 1942 for a story it published revealing that the U.S. military had cracked Japanese codes. The government concedes that there are no interests favoring continued secrecy. It nonetheless resists turning over the materials, on the sweeping ground that Rule 6(e) of the Federal Rules of Criminal Procedure entirely eliminates the district court’s common-law supervisory authority over the grand jury. It takes the position that no one (as far as we can tell) has the power to release these documents except for one of the reasons enumerated in Rule 6(e)(3)(E). If that is so, then Carlson and his allies must fail, because his request is outside the scope of Rule 6(e).ILB: This Nov. 21, 2014 editorial in the Chicago Tribune presents some of the backstory. Some quotes:
We find nothing in the text of Rule 6(e) (or the criminal rules as a whole) that supports the government’s exclusivity theory, and we find much to indicate that it is wrong. In fact, the Rules and their history imply the opposite, which is why every federal court to consider the issue has adopted Carlson’s view that a district court’s limited inherent power to supervise a grand jury includes the power to unseal grand-jury materials when appropriate. Because the parties agree that this is an appropriate instance (if, in fact, the district court has this power) we affirm the order of the district court. * * *
[Judges Sykes dissent begins on p. 25] Rule 6 of the Federal Rules of Criminal Procedure comprehensively governs the conduct of grand-jury proceedings, and subpart (e) of the rule requires that all matters occurring before the grand jury must be kept secret, subject to certain narrow exceptions. See FED. R. CRIM. P. 6(e)(2)(B), (e)(3)(E). The petitioners here—a group of historians and journalists—asked the district court to unseal grand-jury records from a World War II–era espionage investigation described in fascinating detail in Chief Judge Wood’s opinion. The documents have historical significance, but none of the rule’s exceptions to secrecy even arguably applies. To get around this impediment, the petitioners argued that the exceptions are permissive, not exclusive, and the district court has inherent authority to unseal grand-jury materials for reasons not covered by the rule—here, historical interest.
[A] coalition of American and naval history groups and the national Reporters Committee for Freedom of the Press petitioned the U.S. District Court in Chicago to unseal the transcripts, evidently stored at a National Archives repository in College Park, Md.
We customarily don't tell judges how to rule. But the 50-page filing makes a strong case for breaching grand jury secrecy in what the petitioners call "the first and, to date, only attempt by the U.S. government to prosecute a member of the mainstream press for alleged violations of the Espionage Act of 1917."
Grand jury testimony is secret but, especially as the need for confidentiality recedes, not sacrosanct: Courts have unsealed proceedings in such historically significant cases as those of Richard M. Nixon's Watergate debacle, accused Soviet spy Alger Hiss, executed "atomic spies" Julius and Ethel Rosenberg, and Teamsters boss Jimmy Hoffa. Disclosures typically occur when the principals are dead, privacy issues are moot, and so are such concerns as national security.
This case appears to meet all the criteria for unsealing that other courts have used. The last witness whose identity is known died 17 years ago, and a current judge could order minimal redaction of any lingering threat to privacy.
Opening this testimony could explain how Johnston learned one of this nation's most valuable secrets, how perilous the Navy thought the leak was, and why the investigation halted; the filing alludes to the possibility that the Navy didn't want to tell grand jurors about its codebreaking coup. Another question: Did Roosevelt's administration seek an indictment to punish the Tribune for editorials or articles that had cast doubt on U.S. defense policy?
Courts - Results are in on: "Chief judge Timothy Evans in battle to keep job"
Updating this ILB post from September 14th, Steve Mills and Todd Lighty of the Chicago Tribune report today in a long story headed: "Timothy Evans withstands challenge to win sixth term as chief judge."
Thursday, September 15, 2016
Ind. Gov't. - Marion County court denies TRO request in BMV refunds case
Updating earlier ILB posts from Sept. 12 and Sept. 13th, Judge John F. Hanley, Marion County Superior Court, Civil Division, Rm. 11, has just issued an order (access it here) denying the Plaintiff's "Application for a Temporary Restraining Order Restraining Defendants from Inequitably Dissipating Common Fund and for a Preliminary Injunction Following a Hearing."
Ind. Gov't. - "Hoosier lawmakers eye changes to state employee pensions"
Dan Carden reports in the NWI Times in a story that begins:
INDIANAPOLIS — Republican lawmakers who believe state government should not be providing lifelong pensions to its retired employees are crafting a plan for new public workers to give up their pensions — possibly without even realizing it.More from the long story:
Legislation expected to be filed next year at the General Assembly automatically would register new state employees as members of a 401(k)-style defined contribution retirement plan, unless the new hires submit additional paperwork and elect to join the state pension fund.
The sponsor of the measure, state Rep. Wes Culver, R-Goshen, said other states, including Illinois, have demonstrated that public pension funds are unsustainable, and Indiana instead should model its employee retirement benefits on what’s available in the private sector.
“It reduces the risk that 10, 20, 30 years down the road that the state will be unable to meet its obligation,” Culver said.
However, unlike states undergoing pension crises, the Indiana Public Retirement System is by any objective measure financially prepared and sufficiently funded to meet its pension obligations, said Tony Green, INPRS chief legal officer.
That’s why state Sen. Karen Tallian, D-Ogden Dunes, said it doesn’t make sense to blow up Indiana’s public pension system and reduce the money most state workers will get in retirement, just because of a philosophical disagreement over the role of government.
She said defaulting employees into a defined contribution plan instead of the pension fund is taking advantage of typically financially unaware individuals at a time when most are either just happy to have a job, or overwhelmed by their new hire paperwork.
Ind. Decisions - Supreme Court decides one today, rules sentence here does not warrant appellate revision
In Kyle Bess v. State of Indiana, a 2-page, 5-0,, per curiam opinion, the Court concludes that although a "Court of Appeals majority found his fully executed sentence inappropriate under Indiana Appellate Rule 7(B)":
Our collective judgment is that the sentence imposed by the trial court in this case is not inappropriate under Appellate Rule 7(B) and does not warrant appellate revision. Accordingly, we grant transfer, see Ind. Appellate Rule 58(A), and affirm the sentence imposed by the trial court.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 6 NFP memorandum decision(s))
For publication opinions today (2):
In D.B. and V.G. v. Indiana Department of Child Services , a 19-page opinion, Judge Altice writes:
D.B. (Father) and V.G. (Mother) appeal following the involuntary termination of their parental rights. On appeal, they argue that the termination of their rights was improper because the termination petition was prematurely filed. Additionally, Father argues that the Department of Child Services (DCS) presented insufficient evidence to support the termination of his parental rights. We affirm.In Mindy M. Cline v. State of Indiana, a 9-page, 2-1 opinion, Judge Bailey writes:
Mindy Cline (“Cline”) appeals the denial of her petition for expungement, presenting the sole issue of whether the trial court abused its discretion. We reverse and remand. * * *NFP civil decisions today (3):
Cline sought relief pursuant to Indiana Code Section 35-3-9-4, applicable to qualified felonies other than Class D or Level 6 felonies. Subsection (e) of that statute provides that the trial court may order conviction records expunged if the court finds by a preponderance of the evidence that: (1) the requisite period has elapsed (eight years from the date of conviction or three years from the completion of the sentence, or as shortened by prosecutorial agreement); (2) no charges are pending against the person; (3) applicable fines, costs, and restitution have been paid; and (4) the person has not been convicted of a crime within the previous eight years (or a shorter period with prosecutorial agreement) (emphasis added). * * *
[O]ur Legislature has provided a second chance for individuals who have in the distant past committed drug-related crimes. Although the trial court is granted discretion, this does not extend to disregard of remedial measures enacted by our lawmakers. As previously observed, such statutes should be liberally construed to advance the remedy for which they were enacted. Brown, 947 N.E.2d at 490. We conclude that the trial court abused its discretion in denying Cline’s petition for expungement. Reversed and remanded.
Riley, J., concurs.
Barnes, J., dissents with separate opinion. [That begins, at p. 9] I respectfully dissent. Although the commentary from the trial court here was not exactly artful and was unnecessarily harsh, I believe the court was within its discretionary parameters in rejecting Cline’s expungement request, with one possible correction. [ILB: re the number of convictions] * * *
As the majority recognizes, the expungement statute for felonies above Class D or Level 6 provides only that a trial court “may” expunge a conviction upon proof of the statutory requirements; it does not mandate expungement. See Ind. Code § 35-38-9-4(e). Thus, whether to grant Cline’s expungement petition was within the trial court’s discretion. See Key, 48 N.E.3d at 337. The statute is silent regarding the factors a trial court may consider in deciding how to exercise its discretion when ruling on a non-mandatory expungement petition. I see nothing wrong in the trial court here having considered the seriousness of the offenses and the time period since Cline finished her probationary term when ruling on her petition. Additionally, the trial court had face-to-face interaction with Cline that we cannot have. To the extent the majority emphasizes reasons why the expungement petition should have been granted, I believe it is reweighing the evidence and substituting its judgment for the trial court’s. Even if the expungement could have been granted on these facts, I do not believe the facts compelled granting it.
In In re: The Grandparent Visitation of Jean Allen: Andrew Lemke and Satarah Lemke v. Jean Allen (mem. dec.), a 17-page opinion, Judge Bradford writes:
Appellant-Respondent Andrew Lemke (“Father”) appeals the trial court’s order granting Appellee-Petitioner Jean Allen’s (“Grandmother”) request for grandparent visitation of Father’s two minor children. On appeal, Father contends that the trial court erred in granting Grandmother’s request for grandparent visitation. Father also contends that the trial court abused its discretion in ordering that he pay certain attorney’s fees. Upon review, we conclude that the trial court did not err in granting Grandmother’s request for grandparent visitation or abuse its discretion in awarding Mother’s request for attorney’s fees. However, we are concerned that the amount of visitation ordered exceeds the amount of visitation contemplated by the Grandparent Visitation Act. As such, we affirm in part, reverse in part, and remand to the trial court with instructions. * * *NFP criminal decisions today (3):
Again, the Indiana Supreme Court has held that the “‘Grandparent Visitation Act contemplates only occasional, temporary visitation that does not substantially infringe on a parent’s fundamental right to control the upbringing, education, and religious training of their children.’” In re Visitation of M.L.B., 983 N.E.2d at 586 (quoting K.I., 903 N.E.2d at 462). In this case, it seems that the amount of visitation ordered by the trial court includes more than merely occasional visitation. The trial court’s order recognizes that Father is a noncustodial parent who has been awarded parenting time with the Children. While the trial court’s order does not state the extent of Father’s awarded parenting time, it seems likely that the amount of visitation ordered would significantly infringe upon Father’s parenting time with the Children. As such, we conclude that the amount of awarded visitation should be reconsidered. Thus, on remand, we instruct the trial court to craft a visitation schedule which more closely reflects the occasional visitation contemplated under the Grandparent Visitation Act.
Ind. Courts - "New jail-release system focuses on risk when deciding if bond is needed"
The Columbus Republic has a long story today by Julie McClure - some quotes:
A new assessment process allows some criminal defendants to be released from the Bartholomew County Jail without posting bond.There is much more in the long story.
A new pretrial process will use risk-assessment results to determine whether a defendant may be released without posting bond or whether that person needs to put up money, as they did before, before being allowed to leave the county jail.
Bartholomew is one of nine Indiana counties that may start using the new pretrial model under rules approved Sept. 7 by the Indiana Supreme Court. They go into effect in Bartholomew County this week and will be rolled out to all Indiana courts by 2018. * * *
Until now, bond amounts were based on a schedule, with defendants allowed to leave jail if they were willing and able to pay 10 percent of the bond amount in cash.
While a traffic offense such as operating while intoxicated has required a $5,000 bond, acts considered more serious such as possession of methamphetamine carry a $57,500 bond.
If the assessment shows defendants to be high-risk, they would still be required to pay a $500 cash bond when charged with operating while intoxicated or $5,750 in cash when charged with possession of methamphetamine to be released from jail. * * *
Bartholomew County’s past practice has been to set a cash bond, allowing a defendant to pay 10 percent of the bond before being released as a promise that they will appear for upcoming court hearings.But Meek and Maus pointed out that the system allowed suspects who were accused of committing low-level crimes, and who didn’t have resources to post bond, to be kept in jail, while others arrested for high-level crimes but with the means to post bail, were released.
The goal of the Local Evidence-Based Decision Making Team was to prevent a defendant’s social-economic status from dictating whether an individual remained in jail or was released.
The new system uses a screening tool to assess objectively whether a defendant should be eligible for release without bond, Meek said. It will be used from the lowest level of misdemeanors to a Level 1 felony charge.
The assessment evaluates whether the individual is likely to commit another crime while out of jail and whether he or she will come back to court for hearings as required, Meek said.
Research has shown that defendants who are at low risk should be released without conditions from jail, as a low-risk person can become medium- to high-risk by as little as 24 hours after being booked into a jail, the two said.
Medium-risk offenders could be released with specific conditions, which might include electronic monitoring or daily check-ins — while those assessed as high risk should be detained initially and have a bond set, research indicated.
For more ILB posts on this topic, start with this entry from September 9th.
Ind. Courts - More on "Indiana Ban on Syrian Refugees Draws Mockery From 7th Circuit"
Indiana Gov. Mike Pence’s bid to hamper efforts to relocate refugees fleeing from war-torn Syria to his state ran into strong resistance today.
In arguments before the 7th U.S. Circuit Court of Appeals, Indiana Solicitor General Thomas M. Fisher was bombarded with questions — as well as criticism and sarcastic comments — as he defended Pence’s attempt to block nonprofit resettlement agencies that assist Syrians from receiving funds under the federal Refugee Act.
Fisher appeared before the court to challenge a preliminary injunction that cleared the way for the agencies to get the funds.
Fisher rejected the notion that Pence’s action has anything to do with the Muslim faith of many Syrian refugees.
“Oh, yes it does,” Judge Richard A. Posner shot back.
He asked Fisher if Pence had singled out Syrians because of their nationality.
Fisher rejected that notion, contending Pence relied on reports from the FBI that people coming from Syria could include terrorists posing as refugees.
And unlike the situation in other countries, Fisher maintained, “we lack a footprint in Syria” that would allow the United States to gather intelligence on individual refugees.
“Honestly, you are so out of it,” Posner responded.
He reeled off a list of countries in the Middle East, Asia and Europe that have produced suspected terrorists.
Posner then asked how the FBI could know everything about terrorists from every nation other than Syria.
The men continued their sparring with Posner occasionally raising his voice and Fisher sometimes interrupting Posner.
The exchanges became so heated that Judge Frank H. Easterbrook told Fisher at one point that it was not a good strategy for a lawyer to talk over a judge.
Wednesday, September 14, 2016
Ind. Courts - Legal alien, who happens to be transgendered, cannot change his legal name because he is not a citizen
Earlier today the Indianapolis Star posted a story by Stephanie Wang, headed "Indiana won't let transgender man change name." Some quotes:
A transgender man is suing the state of Indiana for not allowing him to change his legal name — because he's not a U.S. citizen.ILB: The ILB has obtained a copy of the 18-page complaint in the case, JOHN DOE, formerly known as JANE DOE v. MICHAEL PENCE, et al.
State law requiring proof of citizenship for a name change, he said in a lawsuit filed Tuesday, discriminates against him because of his non-citizen status, and it violates his freedom of speech and privacy to protect his gender identity. * * *
He is not a U.S. citizen but lives in the country legally. The man is a 31-year-old Indiana resident whose name is withheld in the lawsuit, which lists him as "John Doe." * * *
"It's really not a case about transgender rights," said Steve Sanders, an associate professor at Indiana University's Maurer School of Law. "It's a case about the rights of legal aliens where, in this case, the impact falls particularly hard and in a particularly dramatic way on a transgender person."
The lawsuit noted that the citizenship requirement in Indiana law, passed in 2010, "was first enacted as part of a measure targeting identity theft and with the specific purpose of making it 'more difficult for illegal immigrants to create new identities.'"
But because the man is a legal immigrant, Sanders said the state would be held to the highest level of scrutiny to prove why it needs to treat him differently from a U.S. citizen.
Some legal privileges apply only to U.S. citizens, but other portions of the law — including the constitutional right to equal protection and due process in the Fourteenth Amendment — treat citizens and non-citizens equally.
While it is a case based on alienage, Sanders said it highlights the indignities and legal difficulties that transgender people often face.
Ind. Courts - "Indiana Ban on Syrian Refugees Draws Mockery From 7th Circuit"
Here is Jack Bouboushian of Courthouse News in a long, must-read report on this morning's oral argument in Exodus Refugee Immigration, Inc. v. Pence, et al. It begins:
CHICAGO (CN) — Sketching out certain defeat for Indiana's policy against Syrian refugee resettlement, the Seventh Circuit's most outspoken jurists rained a tag-team of rhetorical blows down on the state's attorney Wednesday morning.Here is a list of other ILB posts on the appeal.
Solicitor General Thomas Fisher provoked outrage from the federal appeals court in his attempt to justify Indiana's actions.
Setting the tone for the day, U.S. Circuit Judge Richard Posner jumped in immediately as Fisher cited a supposed statement of the FBI director that the U.S. government lacks intelligence on Syrians because there has not been a large-scale military intervention into the country.
"Aren't all these people screened by the State Department," Posner asked. "You don't trust the State Department? Will you do better?"
Fisher repeatedly returned to the FBI's statement only to be shouted down alternately by Posner and U.S. Circuit Judge Frank Easterbrook.
"What difference does it make what the FBI says," Easterbrook asked. "In an amicus brief, the United States says Indiana has exceeded its authority."
Easterbrook scoffed at Fisher's replies. "When a state targets a policy against people from Syria and says it has nothing to do with national origin, it produces nothing but a broad smile," the judge said.
Fisher tried to emphasize that the policy concerns resettlement only. "If we were actually preventing people from entering the state," he said, "that would be different."
Easterbrook was not convinced, however, saying states cannot selectively apply federal program funds. Either they opt in to the program or they do not, he said.
Fisher stumbled for a minute before settling on "no" when Easterbrook asked if there was any language in the Refugee Act that he was relying on.
This simple answer brought Posner back into the ring. "Are Syrians the only Muslims Indiana fears?"
Fisher halfheartedly replied: "This has nothing to do with religion."
Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 6 NFP memorandum decision(s))
For publication opinions today (3):
In Meridian Health Services Corporation v. Thomas Martin Bell, a 27-page opinion, Judge Robb writes:
Meridian Health Services Corporation (“Meridian”) appeals the trial court’s order finding it in contempt of court for failure to comply with a subpoena duces tecum and appear at a deposition and awarding attorney’s fees as a sanction pursuant to Indiana Trial Rules 26(C) and 37(A)(4). Concluding the trial court did not abuse its discretion in holding Meridian in contempt and ordering it to pay attorney’s fees, we affirm. * * *In Jeffrey L. McMahel v. Mary A. Deaton, a 22-page opinion, Judge Brown writes:
[A. HIPAA Privacy Rule] Regardless of whether the parent is otherwise considered a personal representative, HIPAA defers to state law with respect to the ability of the parent to obtain health information about the minor child: the health care provider may disclose to a parent the minor’s protected health information to the extent it is permitted or required by state law; conversely, the health care provider may not disclose the information when and to the extent state law prohibits such disclosure. 45 C.F.R. § 164.502(g)(3)(ii)(A), (B). * * *
[B. Indiana Law]
[C. Restrictions on Access]
Conclusion. Because HIPAA permitted and state law clearly required Meridian to release K.B.’s records to Father, the trial court did not abuse its discretion in ordering Meridian pay Father’s attorney’s fees. We therefore affirm.
Jeffrey L. McMahel appeals the trial court’s order awarding certain property to Mary A. Deaton following their cohabitation. McMahel raises one issue which we revise and restate as whether the court’s order is clearly erroneous. We affirm. * * *In Bayview Loan Servicing, LLC v. Golden Foods, Inc., and Lewis R. Coulter, a 28-page opinion, Judge Pyle writes:
While Deaton benefited from the resources provided to her by McMahel, McMahel also substantially benefited from the monetary and other contributions provided by Deaton during their cohabitation of over seventeen years. We conclude the evidence supports the trial court’s award of certain property to Deaton and its order that McMahel pay Deaton the amount of $13,102.30. See Turner, 792 N.E.2d at 950-951 (concluding that there was evidence to support the trial court’s finding that defendant had been unjustly enriched).
Conclusion. For the foregoing reasons, we affirm the December 11, 2015 order of the trial court.
Bayview Loan Servicing LLC (“Bayview”) appeals the trial court’s order entering judgment in favor of Golden Foods, Inc., (“Golden Foods”) and Lewis Coulter (“Coulter”) on Bayview’s mortgage foreclosure claim and Golden Food’s conversion counterclaim. Bayview argues that there is insufficient evidence that it intended: (1) for Golden Food’s mortgage to merge with the tax deed that Bayview purchased from M. Jewell, LLC (“Jewell”); and (2) to exert unauthorized control over Golden Foods’ property and monthly payments. Concluding that Bayview’s arguments are requests to reweigh the evidence and that there is sufficient evidence that Bayview intended both the merger and the exercise of unauthorized control, we affirm the trial court. * * *NFP civil decisions today (2):
Our review of the evidence reveals that after Jewell acquired the tax deed to the property, Bayview structured a deal to acquire the property and change Bayview’s status from mortgage lienholder to fee simple owner. Specifically, Leuking drafted a settlement agreement, which Piedra authorized, that passed the tax deed directly to Bayview. Four days later, Gonzalez told Coulter that the Madison Street Property taxes had been paid but failed to mention that Bayview had taken title to the property. In the meantime, Coulter, who believed that Bayview had settled the situation with Jewell and that the LAA was in effect, began making the $1,218.55 monthly payment to Bayview. Although Bayview now held title to the property and had never signed the LAA, Bayview accepted Coulter’s payments for ten months until it filed a complaint to quiet title to the property. This evidence supports the trial court’s conclusion that Bayview converted the Madison Street Property as well as Coulter’s LAA payments. The trial court’s judgment is not clearly erroneous.
NFP criminal decisions today (4):
Ind. Courts - Syrian refugee case oral argument before 7th Circuit this morning
And you generally can't find out until the day of the hearing in the 7th Circuit, when the calendar comes out, who will be sitting on the panel. Interestingly, the random draw resulted in Judges: POSNER, EASTERBROOK, SYKES.
The oral argument audio hasn't been posted yet (the argument was at 9 am), but when it is, you may access it here. 16-1509.
Courts - "Chief judge Timothy Evans in battle to keep job"
Some nuggets from this very long story today in the Chicago Tribune, reported by Steve Mills and Todd Lighty, on the Cook County Illinois court system:
At stake is a position that holds great sway over one of the nation's largest judicial systems, exerting deep influence over cases ranging from traffic violations to murder trials. * * *
Ballots for the three-year term will be cast in secret Thursday. Cook County's 241 circuit court judges vote; 145 associate judges do not.
Races for chief judge tend to focus on management style dominating what are typically rather staid discussions of court procedures, much of it in "Dear Colleagues" letters rather than boisterous campaigning. Candidates sometimes go courtroom to courtroom seeking votes, and elected officials have been known to quietly lobby on behalf of a favored candidate. * * *
Who controls Cook County's massive court system is important; an ineffective system can harm those who pass through it and cost taxpayers greatly. Allen and Ramos have said in letters and to colleagues they can run the system better than Evans. * * *
Today, Evans heads a sprawling system that has 13 courthouses, with about 1.2 million criminal and civil cases pending at any given time. Besides the 386 circuit and associate judges, Evans supervises close to 2,700 employees, and also heads the county juvenile temporary detention center and probation department. The court's 2016 budget is nearly $236 million, according to Pat Milhizer, a spokesman for the chief judge.
Ind. Gov't. - Editorial: "Rules could block Indiana's police video law"
A South Bend Tribune editorial today calls for the Supreme Court to step in. Some quotes:
Before its passage by the Indiana General Assembly earlier this year, we praised House Enrolled Act 1019 for restoring dash-cam and body-cam videos to the bright light of public scrutiny, “where they belong.”
But without a fix from the Indiana Supreme Court, such videos could be kept in the dark for an indefinite period. * * *
[T]he Indiana Prosecuting Attorneys Council has serious concerns that prosecutors could be in danger of being disciplined under the state Supreme Court’s Rules of Professional Conduct — specifically, Rules 3.6 and 3.8 — if police release video to the public before a criminal investigation is over or before a trial ends.
The rules prohibit influencing a potential jury pool and increasing public condemnation of a defendant.
As David Powell, executive director of IPAC, explained in a Friday op-ed in the Times of Northwest Indiana, “It is important to note that the Indiana Supreme Court has made it clear that prosecutors may not use the Access to Public Records Act as a tool to violate its Rules of Professional Conduct. Law enforcement recordings often include material that is prejudicial to a defendant. Releasing a prejudicial recording would violate the access laws and implicate the Rules of Professional Conduct.”
Steve Key, executive director and general counsel for the Hoosier State Press Association, says the remedy for this problem must come from the Indiana Supreme Court. “The legislature could change the law — but prosecutors would still be under (Rule) 3.8,” says Key, who doesn’t see the matter being resolved in the near future.
Some guidance from the court would help clarify whether the release of certain videos would violate its rules of conduct, but Powell notes, the court “doesn’t give advisory opinions; we’ve asked them to reconsider.”
Unless and until the court steps in, a law intended to support the public’s right to know falls short in that goal.
Ind. Courts - "Few takers for LaPorte addiction program"
Stan Maddux reports in the NWI Times in a story that begins:
LAPORTE — A 21-year-old man revived from a heroin overdose who ran out of LaPorte Hospital last week, an IV still in his arm, was just one of about a dozen near-death overdoses reported in LaPorte County in the last three weeks.
As EMS workers and emergency room personnel tend to the overdose patients, police are trying to spread the word about a program to help addicts without the fear of being questioned or arrested.
But, so far, just one person has stepped forward to ask for help since the program started three months ago.
LaPorte Police Chief Adam Klimczak is confident more will come once word of mouth and other forms of publicity take deeper root.
Tuesday, September 13, 2016
Ind. Courts - "Supreme Court considers whether private university police records should be open to public"
This morning the Supreme Court heard oral argument in ESPN, Inc., et al. v. University of Notre Dame Police Department. You may watch the archived oral argument here (although I had to try several devices first ...) and I urge you to do so, to watch two of Indiana's premier appellate attorneys in action, Maggie Smith for the Appellant ESPN, and Peter Rusthoven for the Appellee Notre Dame.
Here is a long list of earlier ILB posts.
Here is Dan Carden's coverage of today's argument, in the NWI Times. Some quotes:
Should police departments operated by private universities in Indiana be subject to the same open records requirements that apply to state, county and municipal police agencies?Madeline Buckley's Indianapolis Star report opens with:
The five justices of the Indiana Supreme Court wrestled with that question during 45 minutes of oral arguments Tuesday as the University of Notre Dame urged the high court to continue allowing it to keep secret all campus police records, especially those pertaining to student athletes.
Notre Dame attorney Peter Rusthoven argued the police provisions of Indiana's Access to Public Records Act do not apply to private universities, because the statute defines a relevant "law enforcement agency" as "any agency or a department of any level of government," and Notre Dame is not that. * * *
Attorney Maggie Smith, representing the sports television network ESPN, which was denied records by the Notre Dame police department, asked the justices to uphold a unanimous March 15 Court of Appeals decision declaring Notre Dame's police department is subject to open records requirements.
She said it is undisputed that under Indiana law private university police departments are equivalent in every way to public police agencies. As such, their records likewise must be open to ensure transparency and accountability.
"Anything that involves a public function should be open to the public," Smith said. "We are talking about the core power of the state — the opportunity to deprive an individual of a liberty interest."
That argument seemed to resonate with Chief Justice Loretta Rush, who noted that when a person arrested by the Notre Dame police department and is charged with a crime, the plaintiff is the state of Indiana.
Justices Steven David and Robert Rucker, a Gary native, also expressed concerns about equal treatment under the law if, for example, Notre Dame police worked alongside South Bend police at an off-campus drunk driving checkpoint as permitted by the Indiana Code.
Officers with Notre Dame's police department could patrol the streets around campus and pull over a vehicle. The next vehicle that comes by could be pulled over by an officer with the South Bend Police Department.Margaret Fosmoe reports for the South Bend Tribune:
In one case, there would be a public record for the stop. In another case, there wouldn't.
That was a scenario posed by Indiana Supreme Court Stephen David Tuesday morning during oral arguments in the public records lawsuit sports broadcaster ESPN is waging against the University of Notre Dame.
At issue in the case: Should Notre Dame, a private university, be able to operate a police department with the power to make arrests, interrogate suspects and investigate serious crimes without making those records public under state law?
"If the South Bend Police Department stopped the second and third car, we have two different sets of interpretations of what might be available to the public by virtue of who the arresting agency was," David posited to Peter Rusthoven, the attorney arguing on behalf of Notre Dame.
Rusthoven replied that David's interpretation is correct.
"The issue before the court is not whether this is smart policy," Rusthoven said, adding that the high court's job is to examine what state law does, and doesn't, say.
The University of Notre Dame wrongly denied ESPN's request for campus police records that should be subject to the same public scrutiny as those of other police departments, an attorney told the Indiana Supreme Court on Tuesday.
Just like other police agencies, Notre Dame Security Police carry guns, investigate crimes and arrest suspects, both on and off campus, attorney Maggie Smith said. The difference is "Notre Dame wants to keep all its records secret," said Smith, representing the Connecticut-based sports media company.
ESPN in 2014 sought campus police records from Notre Dame for cases involving student athletes. The university refused the request, citing its status as a private university, and the sports media company sued. * * *
Notre Dame police have the same training and perform the same functions as other Indiana police agencies, and thus are performing a state-sanctioned function of government, Smith argued.
Notre Dame is a private institution that doesn't function in any way as an agent of Indiana government, and thus the state's public records law should not apply to campus police records, said attorney Peter Rusthoven, representing the university.
He noted that three times previously, Indiana public access counselors had issued opinions stating that private university police records were not subject to Indiana's public records law. The fourth time, which involved the ESPN request for Notre Dame records, public access counselor Luke Britt issued an opinion in favor of ESPN, saying the records should be public and that NDSP powers come from the state.
"We have private universities that have been told three times over a decade that this doesn't apply, and they have organized their affairs accordingly," Rusthoven said. * * *
The South Bend Tribune and Hoosier State Press Association filed a brief in the case supporting ESPN and arguing that Notre Dame police reports and logs are public records. Attorney General Greg Zoeller also backed ESPN, arguing that Notre Dame's police department reports are public records.