Wednesday, May 14, 2008
Ind. Law - More on: How much can you rely on what is in the Indiana Code?
Updating this ILB entry from Monday, May 12th, about my article for the May 2008 issue of Res Gestae, titled, "How much can you rely on what is in the Indiana Code? Part I - Noncode sections", here is one of the examples in the article:
IC 24-4-15, a chapter headed "Automated External Defibrillators in Health Clubs," was added to the Indiana Code by Senate Enrolled Act (SEA) 134 of the 2007 General Assembly, and, by its terms, took effect July 1, 2007.This "nothwithstanding" language does not appear in the Indiana Code. But as you can see, it significantly impacts compliance with IC 24-4-15-5.Reading IC 24-4-15 in the online Indiana Code provided by the General Assembly, one sees the requirement in Sec. 5 that an owner or operator of a health club shall ensure that a defibrillator is located on the health club premises and is easily accessible. Sec. 8 provides that a violator commits a Class C infraction.
The logical assumption would be that the defibrillator requirement is in effect. But that would be wrong.
Although each section of the new law went into effect July 1, 2007, the General Assembly added a noncode SECTION 4 to SEA. 134, which reads:
(a) Notwithstanding IC 24-4-15, as added by this act, a health club is not required to comply with IC 24-4-15, as added by this act, before July 1, 2008.(b) This SECTION expires December 31, 2009. [emphasis added]
Posted by Marcia Oddi on May 14, 2008 04:03 PM
Posted to Indiana Law
Ind. Decisions - Supreme Court justices differ on sanctions in attorney disciplinary case
In the Matter of David J. Colman is an 11-page, 3-2 (as to sanctions) Per Curiam opinion. The court writes:
This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. We find that Respondent, David J. Colman, engaged in attorney misconduct by participating in preparation of a will for a non-relative that would give Respondent or his son a substantial gift, by representing a client when there was a conflict of interest due to Respondent's personal interests, by failing to hold property of a client separate from Respondent's property and failing to keep a client’s funds in a clearly identified trust account, by entering into an improper business transaction with a client, and by charging an unreasonable fee.The Respondent's 1970 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4. For his misconduct, we find that Respondent should be suspended from the practice of law in this state for at least three years. * * *
For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than three years, beginning July 1, 2008. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of that period, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4).
The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged. * * *
Sullivan, Boehm, and Rucker, JJ., concur. Shepard, C.J., and Dickson, J., dissent as to sanction with separate opinions.
Shepard, Chief Justice, dissenting as to sanction. This is respondent David J. Colman’s fourth disciplinary proceeding; three of these have occurred since I became a member of this tribunal. The most recent of these involved very substantial federal tax evasion, a federal felony conviction, and an eighteen-month suspension of Respondent’s license. * * *
It is difficult to imagine that any future expressions of remorse about these actions could be persuasive, such that readmission might occur. And, it is hard to fashion an argument for the public that Respondent’s behavior has been such that we might at some future date want, again, to tell clients they can entrust their own dearest matters to him. I thus vote to disbar.
Dickson, Justice, dissenting as to sanction. When the respondent was convicted of a federal felony in 1996, this Court unanimously voted not to disbar but only to suspend his privilege to practice law for a substantial time. Matter of Colman, 691 N.E.2d 1219 (Ind. 1998). And we later unanimously agreed to reinstate him. Matter of Colman, 714 N.E.2d 125 (Ind. 1999).
On reflection, I should have, but did not, dissent to these per curiam decisions. I choose, however, not to make the same mistake a third time, and agree with Chief Justice Shepard that the respondent should be disbarred for his misconduct.
Posted by Marcia Oddi on May 14, 2008 03:29 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Courts - "Tippecanoe County superior court judge Michael Morrissey is one of the few Indiana judges who uses ignition interlocks"
Bob Segal of Indianapolis Eyewitness News 13 reports:
Indiana is not doing what many other states have done to reduce their alcohol-related fatalities and crashes. Dozens of states now require convicted drunk drivers to install ignition interlock devices in their vehicles, and in some of those states, the results have been dramatic.The very long report includes a number of links for more information.Ignition interlock devices are wired into a vehicle's ignition, and they require drivers to blow into the device to prove sobriety before their vehicles will start. If the ignition interlock detects any alcohol on a driver's breath, the vehicle is disabled.
Tippecanoe County superior court judge Michael Morrissey is one of the few Indiana judges who uses ignition interlocks. He's ordered them for hundreds of drunk drivers since 2005, and he says in more than 99% of those cases, the offenders did not drive drunk again.
"I like our numbers," Morrissey said. "If you're decreasing re-offense rates, you're protecting the public." * * *
Indiana law allows judges to order the installation an ignition interlock, but they are not mandated to do so. Judges in other states do not have a choice. Six states have legislation that requires ignition interlock devices for every case of drunk driving. Twenty other states mandate ignition interlock for some alcohol-related driving offenses.
Posted by Marcia Oddi on May 14, 2008 11:56 AM
Posted to Indiana Courts
Ind. Decisions - Court of Appeals issues 0 today (and 9 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
Sonnie Ebikwo v. Linda Robbins and Jeffrey Huff (NFP) - "Pro-se Appellant-Defendant Sonnie Ebikwo (“Ebikwo”) appeals a small claims court judgment awarding Appellees-Plaintiffs Linda Robbins (“Robbins”) and Jeffrey Huff (“Huff”) (collectively, “the Appellees”) the amount of $5776.20. We affirm. * * * Ebikwo has not established that the trial court’s judgment in favor of the Appellees is clearly erroneous. Affirmed."
First Financial, N.A. v. Patricia Traverse, et al (NFP) - "First Financial, N.A. (“Financial”) appeals from the trial court’s judgment in favor of Patricia Traverse (“Traverse”). Financial raises three issues on appeal, that we consolidate and restate as: whether that the trial court’s decision to award Traverse $500.00 for the loss of the use and enjoyment of her land and to order the removal of Financial’s structure that encroached on Traverse’s property was clearly erroneous. * * * Financial has failed to show that the evidence leads unerringly to the conclusion that Traverse acquiesced in the construction of the addition or otherwise expressly or impliedly agreed to a new boundary line. Therefore, under our standard of review, we affirm the trial court’s judgment. Affirmed."
NFP criminal opinions today (7):
Timothy A. Bennington v. State of Indiana (NFP)
Leslie B. Barnett v. State of Indiana (NFP)
Rosendo Hernandez, Jr. v. State of Indiana (NFP)
Ronald G. Fox, II v. State of Indiana (NFP)
Brady K. King v. State of Indiana (NFP)
Kevin Chandler v. State of Indiana (NFP)
William Beeler v. State of Indiana (NFP)
Posted by Marcia Oddi on May 14, 2008 11:47 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - "Justices overturn girl's MySpace conviction"
Charles Wilson of the AP reports today on the Supreme Court decision yesterday in the case of A.B. v.State of Indiana (see May 13th ILB entry here - 4th case). Some quotes:
The Indiana Supreme Court overruled a judge who placed a middle school student on probation for posting an expletive-laden entry on MySpace criticizing her principal over school policy on body piercings.The state Court of Appeals last year had ordered the Putnam Circuit Court to set aside its penalty against the girl, referred to in court documents as A.B., because it said the court had violated the girl's free-speech rights.
The Supreme Court, however, disagreed with that rationale and instead overruled the [trial] court Tuesday because it found it had failed to prove that the girl's post constituted harassment under Indiana law. * * *
The court noted that a key post appeared in a private section of a MySpace site that was not intended to be viewed by the public, but only by friends who had been invited by the user. The principal was able to view it only after gaining access from another student who had created the site.
A.B. therefore had no reason to expect that Gobert would see her post, the high court said in its eight-page ruling.
Another post that led to the penalty appeared in a more public area of the site, but the Supreme Court said the content indicated that it was intended as legitimate communication, which meant it could not be construed as harassment under state law.
Posted by Marcia Oddi on May 14, 2008 10:11 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - "Court limits sex offender residency law"
The Court of Appeals decision yesterday in the case of State of Indiana v. Anthony Pollard is the subject of several stories today. (See ILB entry here - 3rd case.)
Jeff Parrott reports in the South Bend Tribune:
The Indiana Court of Appeals on Tuesday declared unconstitutional a 2006 state law barring registered sex offenders from living near schools, parks and youth centers in cases where the offender had already owned his home when the law took effect."Court restricts part of sex offender residency law" is the headline of an AP story today in the Chicago Tribune that begins:The three-judge panel's unanimous decision, upholding a Blackford County trial court judge's ruling from June, determined the law was "ex post facto," meaning it effectively criminalized conduct that had not been criminal before the law took effect July 1, 2006.
Defendant Anthony W. Pollard, charged with a Class D felony sex offender registry offense, has lived in and owned his home for 20 years. In appealing the trial court ruling, the state had argued that since Pollard had violated the residency law after July 1, 2006, he was being punished merely for that violation.
"However," the appeals court wrote, "that punishment restricts an ownership interest in property that Pollard acquired before the statute came into effect; it is not just a potential penalty for continuing to reside within the exclusionary zone after the effective date of the statute."
INDIANAPOLIS - The state cannot force convicted sex offenders who live near schools or other places frequented by children to move if they owned their homes before passage of a state law restricting their residency, the Indiana Court of Appeals has ruled.The court said Tuesday that the 2006 law that prohibits convicted sex offenders from living within 1,000 feet of a school, public park or youth program center was unconstitutional in such cases.
The unanimous 10-page ruling upheld a Blackford County judge's opinion, holding that the state law was an ex post facto law that punished sex offenders for behavior that was not criminal when it was committed -- in this case, home ownership.
Posted by Marcia Oddi on May 14, 2008 10:00 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Update on "Lawrence County Judge Found Dead In Home"
Following up on the ILB's most recent entry on this story, from Nov. 6, 2007, Laura Lane of the Bloomington Herald Times reports today in a lengthy story ($$$):
When Lawrence Circuit Judge and Army National Guard Col. Richard McIntyre killed himself last October, talk of his possible involvement in a military furniture-buying scandal tainted memories of his revered life of public service.Citizens were left wondering if the investigation contributed to his suicide.
Last week, a federal grand jury indicted two managers of a furniture store in Columbus for aiding and abetting the submission of false claims to the federal government involving furniture rental contracts at Camp Atterbury, where McIntyre had served.
No one will substantiate that McIntyre was involved and will say only that the investigation continues. * * *
Timothy Morrison, U.S. Attorney for the Southern District of Indiana, also would not comment then, or now, as to whether McIntyre was under suspicion.
“I would neither confirm or deny, and the reasons are obvious,” he said. “We’re attempting to protect the reputation and the good name of people unless it’s proven beyond reasonable doubt they have done something wrong.”
He remains mum on the subject of McIntyre and said his office does not discuss the status of people not charged in criminal investigations.
According to Army National Guard spokesman Maj. Michael Brady, investigators from the Department of Defense, the Army and other federal and state agencies conducted an 18-month investigation and learned that service members were presenting claims for rental furniture that they then kept.
“There are a number of military personnel under investigation,” Brady said.
He said that now, all military personnel assigned to Camp Atterbury live in furnished government quarters, “so it is not possible for this situation to happen again.”
Brady said he would not address whether the furniture-buying investigation contributed to McIntyre’s actions last Oct. 30, when his wife found him dead inside his 2007 GMC Yukon parked in the garage at their Brook Knoll home.
“It would not be proper for the Army or the National Guard to speculate regarding the reasons why somebody would take their own life,” he said.
Posted by Marcia Oddi on May 14, 2008 09:50 AM
Posted to Indiana Courts
Tuesday, May 13, 2008
Ind. Decisions - Supreme Court issues four opinions late this afternoon, including the "MySpace case"
In Querrey & Harrow, LTD, et al v. Transcontinental Insurance Co., a 5-page, 4-1 opinion, Justice Dickson writes:
Addressing an issue of first impression in Indiana, the Court of Appeals holds that an excess insurer may not bring an action for legal malpractice against the insured's attorneys. Querry & Harrow v. Transcontinental Ins. Co., 861 N.E.2d 719 (Ind. Ct. App. 2007). We agree and now adopt this opinion as to all issues addressed. Ind. Appellate Rule 58(A)(1). * * *In Andrew Lee Watts v. State of Indiana, a 9-page, 3-2 decision, Justice Sullivan writes:We adopt the opinion of the Court of Appeals. This cause is remanded for the entry of summary judgment in favor of the appellants-defendants.
Shepard, C.J., and Rucker, J., concur.
Boehm, J., concurs in result.
Sullivan, J., dissents with separate opinion. [that concludes] For the reasons discussed in these cases, I would allow an insurer to bring an action under equitable subrogation. (In a similar vein, I note that Judge Tinder predicted that our Court would allow an excess insurer to bring an action against a primary insurer under equitable subrogation for negligent defense of a claim against the insured. Phico Ins. Co. v. Aetna Cas. and Sur. Co. of Am., 93 F. Supp. 2d 982, 990 (S.D. Ind. 2000).) Any claim that an insurance company would bring against its insured’s attorney would have to be prosecuted without access to any confidential client information of any kind whatso-ever. But I would not close the courthouse door to an insurance company that is willing and able to do so.
Having charged Andrew Watts with murder in a tavern shooting, the State sought at trial to have the jury also instructed on the lesser-included offense of voluntary manslaughter. It was reversible error for the trial court to give the instruction over defense counsel’s objection because there was no evidence of sudden heat. * * *In State of Indiana v. Karl D. Jackson, a 6-page 3-2 opinion, Justice Dickson writes:The trial court erred when it instructed the jury on voluntary manslaughter in the absence of evidence of sudden heat in the record. Therefore, Watts’s conviction for voluntary manslaughter is reversed.
Dickson and Rucker, JJ., concur.
Shepard, C.J., dissents without opinion.
Boehm, J., dissents with opinion.
We hold that a conviction for Operating a Vehicle After Being Adjudged a Habitual Traffic Violator, a class D felony, in violation of Ind. Code § 9-30-10-16(a)(1), does not require proof that the person operated a vehicle with knowledge that the person's driving privileges were suspended because of a habitual traffic violator determination; rather, such a conviction requires only proof that the person operated a vehicle with knowledge that the person's driving privileges were suspended, regardless of the reason. Because of the limited remedy available to the State upon its appeal following an acquittal, however, the trial court's judgment of acquittal remains unaffected. unaffected. I.C. § 35-38-4-2(4); Casada, 825 N.E.2d at 940; O'Grady, 876 N.E.2d at 765.In A.B. v.State of Indiana, an 8-page, 5-0 opinion (the "MySpace case"), Justice Dickson writes:Shepard, C.J., and Boehm, J., concur.
Rucker, J., dissents with separate opinion in which Sullivan, J., concurs.
A.B., a juvenile, appeals her adjudication as a delinquent child for her postings on the Internet site MySpace.com that, if committed by an adult, would constitute the criminal offense of Harassment. The Court of Appeals reversed, concluding that A.B.'s allegedly harassing messages were protected political speech. A.B. v. State, 863 N.E.2d 1212 (Ind. Ct. App. 2007), reh'g denied. Disagreeing with this rationale, we granted transfer, and now also reverse the trial court, but for different a reason: the State failed to prove all of the statutory elements for the offense of Harassment. * * *Justice Dickson writes near the beginning of the opinion:Because the evidence failed to prove that A.B. made postings and comments on MySpace with the intent "to harass, annoy, or alarm" her former principal "but with no intent of legitimate communication," I.C. § 35-45-2-2(a), the requisite intent common to the six Counts on which A.B. was adjudicated a delinquent child, we reverse the judgment of the trial court.
As a preliminary matter, we note that the evidence presented at the fact-finding hearing was extremely sparse, uncertain, and equivocal regarding the operation and use of MySpace.com ("MySpace"), which is central to this case. Only two witnesses testified at the fact-finding hear-ing, the school principal and A.B.'s mother. No expert witnesses were called. Neither of the witnesses provided knowledgeable and reliable details about MySpace. The primary source of information about MySpace came from the testimony of the principal, whose "understanding [came] from talking to students and trying to go figure how to go about researching this." The principal testified: "I don't get on MySpace." The Commentary to Canon 3B of the Indiana Code of Judicial Conduct advises: "A judge must not independently investigate facts in a case and must consider only the evidence presented." Notwithstanding this directive, in order to facilitate understanding of the facts and application of relevant legal principles, this opinion includes information regarding the operation and use of MySpace from identified sources outside the trial record of this case.The Court of Appeals decision in A.B. v. State was issued April 9, 2007 - see initial ILB entry here. Since that time much has been written on this case, and related issues. See the list of ILB entries mentioning "MySpace" here.
In another social network case involving Indiana students, Jon Murray of the Indianapolis Star had a story May 10th headed "Roncalli dean sues over fake Facebook profile.". The longish report begins:
Defamation and identity fraud lawsuits have become the latest weapons of choice for educators targeted by online tormentors.A fake online profile prompted a Roncalli High School dean to file just such a suit this week.
Cloaked in near-anonymity, the creator of the profile on Facebook used it to contact Roncalli students with inappropriate messages in Tim Puntarelli's name, an attorney for the Archdiocese of Indianapolis said.
School officials came one step closer to unmasking the person's identity Friday when a Marion County judge ordered the online social-networking site to turn over information identifying the user.
Posted by Marcia Oddi on May 13, 2008 04:41 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)
For publication opinions today (3):
In Gary Tapely II v. State of Indiana , a 5-page opinion, Judge May writes:
Gary Tapely II was convicted of Class D felony possession of two or more precursors with the intent to manufacture methamphetamine. The house where Tapely was found contained substantial evidence of “multiple prior episodes of manufacturing” methamphetamine. Tapely asserts he could not be guilty of possession with intent to manufacture because the house did not contain precursors “sufficient to begin or otherwise advance the process of manufacturing.” We affirm. * * *In Lisa Dawn Owens v. State of Indiana , a 9-page, 2-1 opinion, Judge Riley writes:Tapely knew what Hand and his brother were doing in Hand’s house that evening; they were preparing all the ingredients for manufacturing methamphetamine. Tapely helped light incense to cover the smell of ether. As he was the only person in Hand’s house when the police arrived, Tapely presumably flickered the lights off and on in response to the honks from the passing car. Tapely took thirty seconds to open the door after the police knocked, and then he claimed he did not notice a smell of ether. The combination of all this conduct permits a reasonable person to infer Tapely intended to be part of the manufacturing process, even if the process had been moved elsewhere.
Appellant-Defendant, Lisa Dawn Owens (Owens), appeals the trial court’s denial of her Motion for Sentence Modification. We reverse and remand.ISSUE Whether the trial court erred in concluding that it lacked authority to modify Owens’ sentence pursuant to Ind. Code § 35-38-1-17. * * *
We hold that the trial court erred in concluding that it lacked authority to modify Owens’ sentence pursuant to Indiana statutory law and the terms of the plea agreement Owens reached with the State of Indiana. IC 35-38-1-17(b) states in pertinent part: “If more than three hundred sixty-five (365) days have elapsed since the convicted person began serving the sentence and after a hearing at which the convicted person is present, the court may reduce or suspend the sentence, subject to the approval of the prosecuting attorney.” Under typical circumstances, a trial court has no discretion to reduce or suspend a defendant’s sentence pursuant to that statute unless the prosecuting attorney gives approval. State v. Fulkrod, 753 N.E.2d 630, 633 (Ind. 2001). In this case, however, we find that the State waived its right to give approval. The “consents and approves” provision does more than illustrate applicable law. Appellant’s App. at 13. Indeed, its inclusion is sensible only if it differs from the applicable law in some fashion. If the State did not forfeit something in stating that it “consents and approves” Owens filing petitions to modify her sentence after one year, then it would not have been necessary for the State to establish its right to object to such modification. The only sensible interpretation of the “consents and approves” language is an interpretation meaning that the State waived its right to approve Owens’ petition for sentence modification and has not forfeited its right to object to such a modification. Otherwise, there is no reason for the provision to have been included in the plea agreement.
CONCLUSION Based on the foregoing, we conclude that the trial court erred in determining that it lacked authority to modify Owens’ sentence pursuant to Indiana statutory law and the terms of the plea agreement Owens reached with the State of Indiana. We remand this case to the trial court to exercise its discretion in deciding whether to grant Owens’ Petition for Modification of Sentence. Reversed and remanded.
KIRSCH, J., concurs.
MAY, J., dissents with separate opinion. [that concludes] Because I believe the trial court correctly found it had no authority to modify Owens’ sentence from the forty years provided by the plea agreement unless the prosecutor decided not to object to Owens’ motion, I would affirm.
In State of Indiana v. Anthony Pollard , a 10-page opinion, Judge Mathias writes:
The State of Indiana appeals Blackford Superior Court’s dismissal of the charge of Class D felony sex offender residency offense against Anthony Pollard (“Pollard”). The State argues that the trial court erred when it found that Indiana Code section 35-42-4-11, as applied to Pollard, violated Article 1, Section 24 of the Indiana Constitution. We affirm. * * *See this April 16th ILB entry for more on the Pollard case.The State challenges the trial court’s conclusion of law that Indiana Code section 35-42-4-11 is an unconstitutional ex post facto law as applied to Pollard. * * *
Conclusion. For all of these reasons, we hold that Indiana Code section 35-42-4-11, otherwise known as the residency statute, is an ex post facto law as applied to a person in Pollard’s circumstances. The residency statute is a criminal statute that criminalizes residency because of the resident’s status as a sex offender. In addition, the statute’s effect is punitive because it is applied retroactively to sex offenders who established ownership and property rights in a residence prior to the effective date of the statute, and because it forces them to relinquish some or all of their ownership rights or face a felony charge. Perhaps most importantly, Indiana’s residency statute does not exempt ownership established prior to the statute, provide a constitutional taking procedure, or exempt ownership impacted by later construction of a protected facility or area.
For all these reasons, we conclude that the trial court did not err when it found that Indiana Code section 35-42-4-11 violated Article 1, section 24 of the Indiana Constitution, as applied to Pollard. Therefore, we affirm the trial court’s dismissal of the Class D felony charge filed against Pollard pursuant to that statute.
NFP civil opinions today (0):
NFP criminal opinions today (12):
Brian Taylor v. State of Indiana (NFP)
Sherry Russell v. State of Indiana (NFP)
Eric Alter v. State of Indiana (NFP)
Raymond T. Bennett v. State of Indiana (NFP)
Raymond Elmer Bennett v. State of Indiana (NFP)
T.B. v. State of Indiana (NFP)
Aniya Crayton v. State of Indiana (NFP)
Jason W. Hoeppner v. State of Indiana (NFP)
Loren Naylor v. State of Indiana (NFP)
Jamarcus Cain v. State of Indiana (NFP)
Juan C. Chamorro v. State of Indiana (NFP)
Jimmy Monroe v. State of Indiana (NFP)
Posted by Marcia Oddi on May 13, 2008 12:26 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - 7th Circuit issues one Indiana decision today
In Knutson v. USG Corp. and SDRC (SD Ind., Judge Barker), an 8-page opinion, Judge Posner writes:
The plaintiff brought this diversity suit (governed by Indiana law) to recover almost $700,000 in sales commissions that he claims are due from the two defendants, a firm and its successor both of which we refer to as the plaintiff’s “employer.” The district court granted summary judgment for the employer.The plaintiff seeks commissions on three sales or sets of sales; we shall, again for the sake of brevity, pretend that there were just three sales. The first two the judge held barred by the statute of limitations; the plaintiff contends that the judge applied the wrong one. Indiana has a two-year statute of limitations (the one the judge applied) for “an action relating to the terms, conditions, and privileges of employment except actions based upon a written contract (including, but not limited to, hiring or the failure to hire, suspension, discharge, discipline, promotion, demotion, retirement, wages, or salary).” Ind. Code § 34-11-2-1 (emphasis added). Although the plaintiff did not have a written employment contract, his entitlement to commissions was based on a written compensation plan, and it is a breach (or rather breaches) of that plan, which he characterizes as a written contract, that he charges; and so he argues that the applicable statute of limitations is Indiana’s 10-year statute of limitations for “an action upon contracts in writing.” Ind. Code § 34-11-2-11. If he is right, the claim based on the first two sales are not time-barred (the claims arose in 2001, and the suit was filed in 2005); if the judge is right, they are.
In a literal sense, the plaintiff’s suit is “based upon a written contract,” but the Indiana Court of Appeals has held that “written contract” in the two-year statute of limitations means written employment contract. * * *
The claim based on the third sale is not time-barred. It is based on a provision in the compensation contract entitling the plaintiff to specified commissions on “NX Nastran Software and related PLM CAE Software sales.” The plaintiff argues that the two types of software are “related” and therefore he is entitled to commissions on all sales of PLM CAE software that he assisted in making. The employer argues that the plaintiff is entitled only to commissions on PLM CAE software that was sold simultaneously with NX Nastran. The district judge sided with the employer after ruling that “related” was ambiguous but that the ambiguity was “patent” and that extrinsic evidence may not be admitted to dissolve such an ambiguity.
The judge erred. As explained by Francis Bacon more than 400 years ago, an ambiguity is “patent” when it is recognized as an ambiguity just by reading the document; it is latent when it is not recognized as an ambiguity until you know something outside the contract. * * *
So [for other reasons] the claim has no merit, and the other claims, as we said, are time-barred. The judgment is therefore AFFIRMED.
Posted by Marcia Oddi on May 13, 2008 12:11 PM
Posted to Ind. (7th Cir.) Decisions
Environment - Appeals filed with OEA over BP air construction permit grant
Gitte Laasby of the Gary Post-Tribune reports:
A group of Northwest Indiana residents has filed the first appeal of BP Whiting's air permit. Other environmental organizations are preparing separate appeals.Christine Kraly of the NWI Times reports today:The residents, in an appeal filed Saturday, said the permit fails to protect overburdened low-income and minority communities in Whiting, East Chicago and Hammond from increased air pollution. They also said the Indiana Department of Environmental Management limited public participation by not giving the required 30 days' notice of the public comment period until environmental groups pressed for more time.
The Calumet Project and Global Community Monitor groups said they raised their concerns in comments to IDEM, but that IDEM responded they do not have a direct impact on how the agency reviews and makes decisions on air permit applications.
The groups said a 1994 executive order requires the U.S. Environmental Protection and IDEM to address environmental justice.
"We wanted to go with the environmental justice issue since we thought that was completely overlooked in this permit. This permit has been broken down in different sections. This is a major expansion. You spend $3.8 billion and IDEM refers to it as a minor. If you spend that kind of money, it's a major," said Bessie Dent, a Hammond resident and member of the Calumet Project.
If the permit was considered as one rather than three different permits -- for an asphalt plant, a diesel plant and the expansion, it would have been considered a major modification, she said.
Two groups claiming a breach of environmental justice have called for a stop to BP Whiting Refinery's $3.8 billion expansion, according to the first appeal of BP's controversial air permit.The Hammond-based Calumet Project and the Global Community Monitor faxed a petition for administrative review Saturday to the Indiana Office of Environmental Adjudication. The petition asks that expansion of the Whiting plant be halted to ensure the permit meets state and federal rules.
The groups argue the permit does not adequately protect low-income and minority residents from pollution.
A BP spokeswoman responded Monday that the company's permit has followed the letter of the law.
"Our air construction permit is valid," BP spokeswoman Valerie Corr said. "The permit underwent a thorough and rigorous review, and we believe it will stand up to scrutiny."
The Indiana Office of Environmental Adjudication has deemed the petition against BP's permit incomplete because the actual permit was not attached as required.
The office -- whose environmental law judges review Indiana Department of Environmental Management decisions -- is awaiting the arrival of the hard copy to take any action.
The faxed petition requests a temporary stay, meaning BP may have to shutter construction of the expansion project should a judge grant the delay, environmental law Judge Mary Davidsen has said.
Posted by Marcia Oddi on May 13, 2008 12:06 PM
Posted to Environment
Ind. Courts - Larry Bird files a federal lawsuit alleging trademark infringement
Kate Braser of the Evansville Courier & Press reports today:
Basketball legend Larry Bird's former home in West Baden, Ind., is now the subject of a federal lawsuit alleging trademark infringement.The civil suit filed on behalf of the NBA Hall of Famer in U.S. District Court in Evansville on Monday alleges the new owners are using Bird's name and fame without his permission, and he seeks to stop them from doing so.
The 12-acre property, at 7328 W. County Road 100 N., now is named Legend of French Lick Resort. The resort's Web site touts it as "the former home of Larry Bird" and entices visitors to play basketball on the court where Bird "spent hours practicing and perfecting his shot when at home in French Lick."
Geogianna Lincoln and Christopher Cooke bought the property last year from the Larry Joe Bird Revocable Living Trust.
According to the 11-page federal complaint, during the negotiations Lincoln and Cooke's representatives reportedly attempted to buy items of memorabilia from Bird and asked to use Bird's name to identify the house, but those requests were denied.
The complaint states Bird and his representatives did not know Lincoln and Cooke planned to market the property as a bed and breakfast using Bird's name and "commercially promoting the house as 'Legend of French Lick, The Former Home of Larry Bird Resort.'"
"The commercialization of Larry Bird's name in association with this former property is wholly and completely unauthorized and is blatantly being done for the sole purpose of profiting illegally from Larry Bird's name," the complaint states. "Defendant has even tried to create news stories about the property and about this dispute in a transparent effort to create publicity from the use of Larry Bird's name."
Reached by phone late Monday, Cooke said he was disappointed to learn the lawsuit had been filed.
"We've had contact with his legal representatives for a while, and we are very disappointed to hear they have done this," he said.
Cooke said he was told it was OK to refer to the property's past.
"We were told we could say things about (Bird's) past ownership as long as it was truthful," Cooke said. "The truth is it was his house, and it is his former home. We're very disappointed to hear that this has happened.
"If they had told us at the beginning that we were not allowed to say he was the one we bought it from, we would never have," Cooke said.
The complaint disputes Cooke's claim he was told he could use Bird's name.
"After the fact, Cooke or Lincoln or both have falsely stated that they were given oral permission to use the name of Larry Bird in association with the property, but this is also untrue," the complaint states.
"Larry Bird, not the Larry Joe Bird Revocable Trust, is the owner of the marks and rights to publicity in the Larry Bird name, so Larry Bird Revocable Trust could not have given permission to use the Larry Bird name."
The lawsuit was filed by attorneys with Ice Miller LLP in Indianapolis. Attorney Michael Wukmer said he did not wish to comment beyond what was stated in the complaint.
Posted by Marcia Oddi on May 13, 2008 11:51 AM
Posted to Indiana Courts
Ind. Decisions - Still more on: State loses auto-dialer case in trial court
Updating this ILB entry from May 9th, Tracy Warner of the Fort Wayne Journal Gazette has this item today:
State Democratic and Republican leaders have found an issue on which they agree – state law should not prohibit computerized calls from political campaigns.Attorney General Steve Carter has been the leading champion of the Do Not Call law, designed to heavily restrict unsolicited telephone calls to homes from businesses. Under Carter, the state sued American Family Voices Inc. under a separate 1988 law that bans using the automatic dialing technology, dubbed “robocalls.” The law had been widely ignored until Carter decided to step up enforcement.
The state accused American Family Voices of violating the law in the 2006 election following complaints about calls critical of then-Hoosier Congressman Mike Sodrel, a Republican.
The court dismissed the state’s lawsuit, ruling that the state law can limit only commercial calls. The state has appealed to the Indiana Supreme Court.
Now, the state Democratic and Republican parties have asked the court to file a joint friend-of-the-court brief, allowing the parties to weigh in on the legality of the calls. Both parties believe political robocalls are legal.
One more matter the two parties agreed upon – both hired James Bopp Jr., a Terre Haute attorney who is an authority on campaign-related free-speech issues. Bopp is also the attorney for Indiana Right to Life’s challenge against rules restricting what Indiana judicial candidates can say regarding their political campaigns, and, for a time, represented Matt Kelty in his battles with campaign finance law.
“The First Amendment and the Indiana Constitution protect all political speech, including computer-generated political calls. The Indiana Supreme Court should interpret the statute to only apply to commercial calls,” Bopp said, “leaving intact the robust political arena that the First Amendment was designed to protect.”
Posted by Marcia Oddi on May 13, 2008 11:44 AM
Posted to Ind. Trial Ct. Decisions
Monday, May 12, 2008
Ind. Law - "Converse council may govern golf carts"
The ILB has had a rather long list of entries on the subject of use of golf carts on streets and roads, a subject seemingly growing more pressing as the baby boomers age. Perhaps marking the onset of spring, Nancy Binder of the Peru Tribune had a story May 10th:
The Converse Town Council will be looking into creating an ordinance for the use of golf carts as transportation within town limits. Town Marshall Roger Bowland told the council Thursday during its monthly meeting that currently people riding golf carts in town have been respectful of others, and as long as they stayed off the main streets, no laws were being broken.
Posted by Marcia Oddi on May 12, 2008 02:04 PM
Posted to Indiana Government | Indiana Law
Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
Term. of Parent-Child Rel. of S.F. and D.L., and Sherry F., David F., and David L. v. Porter Co. Dept. of Child Services (NFP), a 22-page opinion, Judge Crone writes:
Appellant Sherry F. (“Mother”) appeals the involuntary termination of her parental rights, in Porter Circuit Court, to her sons S.F. and D.L. We affirm.NFP criminal opinions today (1):Mother raises the following issues on appeal: I. Whether the trial court’s judgment is supported by clear and convincing evidence; and, II. Whether Mother was denied due process of law when the trial court failed to set a review hearing during the CHINS proceedings. * * *
In sum, we find clear and convincing evidence supports the trial court’s judgment terminating Mother’s parental rights to S.F. and D.L. Additionally, we conclude that the alleged procedural irregularity in the underlying CHINS proceedings did not serve to deprive Mother of due process during the termination proceedings. Accordingly, we find no error. Affirmed.
Nichole Higgins v. State of Indiana (NFP)
Posted by Marcia Oddi on May 12, 2008 01:36 PM
Posted to Ind. App.Ct. Decisions
Environment - "A century's worth of mud dredged from five miles of the Grand Calumet River lies buried" in a nearby CAMU
Gitte Laasby of the Gary Post-Tribune has an instructive story today about corrective action cleanups. Some quotes:
GARY -- Like a steep hill, the sloping, grass-covered walls rise 20 feet into the air on a strip of land east of Bridge Street and north of Interstate 90. Covered with water, the mound looks like a lake from the air. But the peaceful appearance of the structure does not appease Leonard White.A solid waste specialist, White has worked on some of the country's most contaminated sites. He lives and grew up within a mile of the structure, officially known as a corrective action management unit -- a CAMU.
Nearly a century's worth of mud dredged from five miles of the Grand Calumet River lies buried inside the 37-acre structure.
The mud is contaminated with hazardous cancer-causing substances such as PCBs (polychlorinated biphenyls) and oil distillation byproducts like benzene and naphthalene. To White, that means one thing.
"They can call it a CAMU," White said. "I call it a Superfund site."
The unit is lined at the bottom and on the sides with layers of material designed to keep the mud from leaking out. Water covers the top until it's drawn off, cleaned and sent back to the river. Some vegetation has also started growing at the CAMU. * * *
Dorreen Carey, director of environmental affairs with the City of Gary, said even environmentalists, who had wanted the cleanup of the Grand Calumet River for decades, were conflicted about dredging to protect Lake Michigan and the fish in the river because the contaminated sediment would be placed so close to a residential neighborhood.
"There was a lot of comments up front on where that was to be located," Carey said. "It was identified and decided by U.S. Steel and EPA. The city had some, but limited, authority to oppose the project. At the time, because the river, without being dredged, was a negative for the community and the environment, and because when you dredge and contain it within the CAMU you're protecting people from that negative health impact, that was considered a good thing. The actual location of the facility was, without entering into a large protracted lawsuit, really not something the city had control over."
Posted by Marcia Oddi on May 12, 2008 10:54 AM
Posted to Environment
Ind. Law - How much can you rely on what is in the Indiana Code?
In 2006 I wrote in an article for Res Gestae that the online version of the Indiana Code, which is the only version immediately accessible to most users, has numerous failings. Among these are the failure to include any editorial materials, the presence of numerous obvious errors, the fact that for part of each year the online Code is not current, and the fact that prior versions of the Code are not retained online and are very difficult to access elsewhere. (Access the 2006 article here.)
In a 2007 Res Gestae article I wrote that the online Indiana Code currently meets none of the requirements for trustworthy state-level primary legal resources on the Web: (Are they official? Are they authentic? Are they permanently accessible? Are they secure?) Yet most users of the Indiana Code are unaware of this, and consider the online Indiana Code to be trustworthy. (Access the 2007 article here.)
The May 2008 issue of Res Gestae will publish my newest article, "How much can you rely on what is in the Indiana Code? Part I - Noncode sections"
The problems outlined in the 2006 and 2007 articles are peculiar to the online version of the Indiana Code. This new article looks at problems that transcend the medium used for publication – these new, insofar as these discussions are concerned, problems exist with both the online and the printed versions of the Indiana Code. This article will suggest to the Indiana attorney that:
(1) Simply finding a provision in the Indiana Code is not enough. Due diligence may require you to, at a minimum, study the provision's history in an annotated version of the Indiana Code, or look back to the original enrolled acts. This is the subject of Part I.Res Gestae has given me permission to post this draft version of Part I on the web, prior to official publication. If you have thoughts, concerns, examples, questions, objections, after reading Part I, please let me know. Where appropriate, I hope to address them in Part II.(2) In certain areas of the law, the Indiana Code no longer may be relied upon for all the substantive law of the State on a particular topic. You will need to look elsewhere, and it may not be easy. This will be the subject of Part II.
Posted by Marcia Oddi on May 12, 2008 08:35 AM
Posted to Indiana Law
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Thursday, May 15th:
9:00 AM - Anthony A. Hopkins v. State of Indiana - Hopkins was previously convicted of several offenses and found to be an habitual offender. See Hopkins v. State, 759 N.E.2d 633 (Ind. 2001); Hopkins v. State, No. 49A02-0209-CR-780, slip op. (Ind. Ct. App. Sept. 30, 2003), trans. denied (Ind. Jan. 8, 2004). Hopkins admitted the elements in the habitual offender charge; the trial court did not advise Hopkins of certain rights discussed in Boykin v. Alabama, 395 U.S. 238, 243 (1969). In post-conviction proceedings, the Marion Superior Court determined that Hopkins' admission was not tantamount to a guilty plea, and denied post-conviction relief. The Court of Appeals reversed in Hopkins v. State, No. 49A05-0705-PC-279 (Ind. Ct. App. Dec. 31, 2007), vacated. The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorney for Hopkins: Cassandra J. Wright, Indianapolis, IN. Attorney for State: Ellen H. Meilaender, Indianapolis, IN.
9:45 AM - Todd Jensen v. State & Richard Wallace v. State - Richard Wallace v. State: In 1989, Wallace pleaded guilty to an offense against a child. After having served his sentence, he was informed that he was required to register for life as a sex offender, and following a jury trial, the Marion Superior Court entered a judgment of conviction for the class D felony of failing to register. The Court of Appeals rejected Wallace’s arguments that the duty to register violated the prohibition against ex post facto laws, and affirmed the conviction in Wallace v. State, 878 N.E.2d 1269 (Ind. Ct. App. Jan. 9, 2008), vacated. [See ILB summary here - 2nd case.] The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorney for Wallace: Kathleel Sweeney, Indianapolis, IN. Attorney for State: Zachary Stock, Indianapolis, IN.
Todd Jensen v. State: In 2000, Jensen pleaded guilty in the Allen Superior Court to various offenses against children, and was required to register as a sex offender for a period of 10 years pursuant to the statute then in effect. In 2006, after Jensen had been released from probation, the trial court determined that Jensen must register for life pursuant to changes in the registration statutes. The Court of Appeals reversed on grounds that imposition of a lifetime registration requirement in Jensen’s case violated the prohibition against ex post facto laws. Jenson v. State, 878 N.E.2d 400 (Ind. Ct. App. 2008), vacated. [The ILB entries on the Dec. 26, 2007 COA decision are here, here and here.] The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal. Attorneys for Jensen: Randall Hammond, Randy Fisher, Fort Wayne, IN. Attorney for State: J.T. Whitehead, Indianapolis, IN.
Webcasts will be available here.
This week's oral arguments before the Court of Appeals
None scheduled
Posted by Marcia Oddi on May 12, 2008 08:01 AM
Posted to Upcoming Oral Arguments
Sunday, May 11, 2008
Law - "U.S. Legal Work Booms in India: New Outsourcing Industry Is Growing 60 Percent Annually" triggered by E-discovery rules
Rama Lakshmi of the Washington Post Foreign Service reports today:
GURGAON, India -- When Aashish Sharma graduated from law school two years ago, his father had visions of seeing him argue in an Indian court and eventually become an honorable judge.Instead, Sharma, 25, now sits all day in front of a computer in a plush, air-conditioned suburban office doing litigation research and drafting legal contracts for U.S. companies and law firms. He is part of a booming new outsourcing industry in India that employs thousands of English-speaking lawyers such as him to do legal work at a small fraction of the cost of hiring American lawyers. * * *
Legal process outsourcing is being called the next big thing in Indian business. It marks India's climb up the chain of outsourcing jobs -- from low-end, back-office service functions in call centers to high-value, skilled legal work.
In the past three years, the legal outsourcing industry here has grown about 60 percent annually. According to a report by research firm ValueNotes, the industry will employ about 24,000 people and earn revenue of $640 million by 2010.
Indian workers who once helped with legal transcription now offer services that include research, litigation support, document discovery and review, drafting of contracts and patent writing. The industry offers an attractive career path for many of the 300,000 Indians who enroll in law schools every year. India and the United States share a common-law legal system rooted in Britain's, and both conduct proceedings in English.
The explosion of opportunity here was triggered by what are known as "e-discovery laws," a set of U.S. regulations established in 2006 to govern the storage and management of electronic data for federal court actions. Overnight, the volume of information to be stored, archived, filtered and reviewed for litigation swelled. But there were not enough affordable lawyers or paralegals to do the work in the United States.
"The new e-discovery rules sent American companies scurrying all over the place. Neither the corporates nor the law firms in America are geared to do this kind of work at short notice. And that is where the Indian players come in. We can bring together a large number of skilled lawyers in no time at all and at one-fifth the cost," said Srinivas Pingali, executive vice president at Quatrro, which also offers technical support, credit card fraud management, consumer research and architectural services for American clients, among other work. * * *
"Ninety percent of a lawyer's work is legal research and drafting, and all this can now be offshored to India," said Russell Smith, who worked in a Manhattan law firm called SmithDehn before moving to India to set up an outsourcing company in 2006. "A large portion of our fees in the U.S. is because of office rent. It is often a big decision to hire one attorney in the U.S. In India, we can hire 10 at a time and train them all at once." * * *
"My people in India can do everything from here, except sign the opinion letter and appear in an American court," he said.
Smith's Indian office recently researched and drafted the motion papers for the dismissal of a libel case against the producers of HBO's "Da Ali G Show." Smith said that if it had not been for the cheaper option of outsourcing, the producers would have settled.
Posted by Marcia Oddi on May 11, 2008 04:33 PM
Posted to General Law Related
Ind. Courts - Update on Supreme Court's case management system plans
"Current Activities and Next Steps" is the heading to this JTAC report posted recently on the Court website. It outlines the counties where the JTAC case management system is planned to be deployed during the next two years: "JTAC will work to make Odyssey available to all courts in the following counties: DeKalb, Allen, Huntington, Hamilton, Madison, Clark, Harrison, Floyd."
Statistics. The report notes:
Thousands Taking Advantage of Free Public Access. Public information on cases logged into Odyssey is available at no charge via the Supreme Court’s website (www.courts.in.gov).Perhaps. It is hard to know how to interpret these stats because each counter system is different. Because of that, most blogs (including the ILB) use Sitemeter so that stats are more readily compared.During March 2008, more than 5,500 unique visitors used the website, viewing more than 216,000 pages. The convenience of the web-based access is evident by the number of users viewing documents 24 hours a day. While there were an average of 24,000 page hits between 3-4 p.m., there were also 860 hits between 3-4 a.m.
During March, when the Court reported 5,500 unique visitors, for instance, the ILB had 33,841. On the other hand, during March, when the Court reports 216,000 "page views", the ILB had 54,679. (Here is a link to the ILB's counter [corrected]. There does not appear to be a link to the Court's counter.)
Page view figures are difficult to interpret. What is a "page"? Some counters count "hits" as pages. On the other hand, according to one tracking site:
a page view is each time a visitor views a webpage on your site, irrespective of how many hits are generated. Pages are comprised of files. Every image in a page is a separate file. When a visitor looks at a page (i.e. a page view), they may see numerous images, graphics, pictures etc. and generate multiple hits.The ILB's meter counts pages, not hits. It appears possible that the court meter is counting "hits," so that when one does a search and gets a list of filings, rather than counting this as one page, each item on the list is counted individually.
Counties to be Covered. Currently the Court CMS project is covering Monroe County and Washington Twp. in Marion County. DeKalb, Allen, Huntington, Hamilton, Madison, Clark, Harrison, Floyd are listed as to be added in the next two years.
As discussed in this ILB entry from March 30th, JTAC has been unwilling to allow private companies to tap into the new Monroe County CMS. One of these companies, Doxpop, which has a network of 136 courts in 45 Indiana counties, had previously included Monroe County in its network. Since the JTAC CMS system was installed, however, Doxpop has been denied access, as detailed in the March 30th entry. The situation continues to remain unresolved.*
Will this continue to be a problem with the new list of counties? Are there overlaps? I've compared the JTAC list against the list of counties Doxpop currently serves. The counties in boldface in the JTAC list are currently part of Doxpop's network: DeKalb, Allen, Huntington, Hamilton, Madison, Clark, Harrison, Floyd. Interestingly, Allen County (civil cases only) was just announced by Doxpop last week.
____________
*Instead it is becoming much more onerous for counties to receive approval per Trial Rule 77(k) for public posting of Court Records on-line. The ILB has been told that the paperwork burden the counties and the provider have to submit to the Division of State Court Administration annually has increased substantially. I'm also told that the county courts are being told that "if the courts in your county elect to use the (JTAC) Odyssey case management system, you will not need to go through the renewal process set forth below ...".
Posted by Marcia Oddi on May 11, 2008 12:23 PM
Posted to Indiana Courts
Ind. Courts - Unsolved Tippecanoe County Courthouse bombing nearly ten years old
"Time is ticking on courthouse cold case" is the headline to this Sophia Voravong report today in the Lafayette Journal & Courier. Some quotes:
Just after 10:09 p.m. on Aug. 2, 1998, sheriff's Deputy Tom Lehman was dispatched to investigate reports of a fire at the Fourth Street entrance of the Tippecanoe County Courthouse.From a side-bar:
AdvertisementHe didn't know what to make of learning that a pickup truck had driven into the building. More confusion set in when firefighters found an explosive device in the truck's bed.
"We were trying to figure out why someone would do that," Lehman recalled recently. "What in the world could they have been thinking?"
For the past year, Lehman, now a sheriff's detective, has been working with the FBI and the Bureau of Alcohol, Tobacco, Firearms and Explosives to find the person or people responsible for the attempted bombing.
Investigators have just three months before a 10-year federal statute of limitations for arson and related crimes runs out, said David Capp, interim U.S. Attorney for the Northern District of Indiana.
"Our time is clicking," he said.
No suspects were ever publicly named. No one has been charged.
But Lehman said investigators looked at "a lot of people" considered persons of interest.
Authorities since last spring have been going over all documents related to the initial investigation, making sure that each lead has been followed up.
"There was so much confusion around that time, to be honest," Lehman said. "We're trying to make sure that nothing has been overlooked."
Capp, who was with the U.S. Attorney's Office when the attempted bombing occurred, said the idea was that fresh sets of eyes would perhaps find details that had been missed.
He said investigators have been working regularly on the case. More information could be released soon.
"What we really need is for any member of the public who thinks they might know something to contact us -- even if in their minds, that information is insignificant," Capp said. "We want to talk to them and can keep things confidential, so they don't have to be concerned about that."
Lehman said authorities are working to put together a hot line to report tips anonymously. They also are trying to figure out the exact amount of reward money available for anyone who may have information that could lead to a conviction.
The next year, metal detectors were installed in the courthouse, placed at the front of County Court 2 -- now Superior Court 5 -- and Superior Courts 1 and 3.Additional security updates were made after a series of bomb threats following the Sept. 11, 2001, terrorist attacks. In 2003, all but two entrances were closed, with the public entering on Fourth Street.
The public entrance was switched to Columbia Street in August 2006.
People entering the courthouse are required to empty their pockets, go through a metal detector and send their personal belongings through an X-ray machine to be examined for potential weapons.
Posted by Marcia Oddi on May 11, 2008 12:15 PM
Posted to Indiana Courts
Ind. Gov't. - "Same-sex benefits decision tabled" at Univ. Southern Indiana
Kate Braser's report today in the Evansville Courier & Press includes these quotes:
The University of Southern Indiana board of trustees opted not to vote on a resolution Saturday that would have extended employment benefits to same-sex domestic partners.University President H. Ray Hoops earlier had submitted the resolution to the board agenda. He said USI is the only four-year public university in the state that does not provide the benefit.
The vote originally was slated for the end of Saturday's meeting, but trustee Ted C. Ziemer Jr. addressed the board at the beginning, asking that the item be removed from consideration.
"I would object to voting on this resolution at this time so that all relevant information can be gathered," Ziemer said. "I have some concern this resolution would be unconstitutional and illegal under state law, and I think we need time for our administrators to get legal opinions." * * *
Opposition had surfaced quickly after word spread of the proposal.
Keller Schroeder & Associates, a local technology consulting company, sent a letter to the university asking it to reject the resolution.
Also, Glen Kissel, assistant professor of engineering, said as of midday Friday, more than 2,500 e-mails opposing same-sex domestic partner benefits had been sent to Hoops and the board of trustees, as well as to Gov. Mitch Daniels. He said the e-mails came from supporters of the American Family Association of Indiana.
Kissel was among several at the meeting who said they were pleased the trustees opted not to address the resolution.
"I think it was wise to delay the decision until more consideration can be given," said Mike Lockard, a USI alumnus.
Lockard said he agreed officials needed to study Indiana law further. He also said extending benefits to same-sex domestic partners "creates a separate class."
"What about heterosexual partnerships?" he asked.
Lockard said while other state schools may offer the benefit, many private colleges in the state do not, and he disagreed with the assertion it would attract better candidates to faculty positions.
"What is wrong with the faculty here now?" he asked. "I went to school here, and my daughter does now, and this is a fine school. It's not been a detraction up until now."
Kissel previously said he wanted the university to consider a more inclusive plan that would extend domestic partner benefits beyond same-sex relationships. After Saturday's removal of the item from the agenda, Kissel said he was pleased.
"I am very happy the discriminatory homosexual-only domestic partner benefit has been set aside," he said.
Chad Tew, associate professor of online journalism, said he has been active in trying to get the resolution in front of the trustees.
"I am very disappointed they tabled it," he said. "It doesn't mean it was defeated, so in that sense I am hopeful. I can tell you the majority of faculty are behind this, and we will work with the administration in any way to give the board the information they need.
"I don't buy that objection with relation to it being a legal issue. The states that have had problems have been those states with a constitutional amendment defining marriage as between man and woman, and that was defeated soundly in Indiana."
Posted by Marcia Oddi on May 11, 2008 12:06 PM
Posted to Indiana Government | Indiana Law
Ind. Decisions - Yet more on: Lethal injection case heard before SCOTUS
Following on earlier ILB entries on lethal injection, from Yahoo News today:
CHATTANOOGA, Tenn. - Supreme Court Justice John Paul Stevens says the euthanized Kentucky Derby horse Eight Belles probably died more humanely than death row prisoners do.Stevens's comments Friday night came a month after he voted with a majority of the Supreme Court to approve the most widely used method of lethal injection, while saying for the first time that he now believes the death penalty is unconstitutional.
According to the Chattanooga Times Free Press, Stevens told an audience of judges and lawyers that he checked into the procedure used to kill Eight Belles and was surprised to learn it is against the law in Kentucky to kill animals using one of the drugs in a three-drug lethal injection cocktail that many states, including Kentucky, use to execute prisoners. * * *
In its 7-2 ruling last month, the Supreme Court turned back a challenge to the execution procedures in place in Kentucky, which employ three drugs to sedate, paralyze and kill inmates. Similar methods are used by roughly three dozen states.
The argument against the three-drug protocol is that if the initial anesthetic does not take hold, the other two drugs can cause excruciating pain. One of those drugs, a paralytic, would render the prisoner unable to express his discomfort.
In his opinion, Stevens suggested that states could spare themselves legal costs and delays in executions by eliminating the use of the paralytic.
Posted by Marcia Oddi on May 11, 2008 12:00 PM
Posted to Indiana Decisions
Saturday, May 10, 2008
Ind. Decisions - "Appeals court rules laser hair removal is not health care"
The May 8th Court of Appeals opinion in the case of OB-GYN Associates of Northern Indiana, P.C. v. Tammy Ransbottom (see ILB summary here - 5th case) is the subject of a story today by Jeff Parrott of the South Bend Tribune that begins:
The Indiana Court of Appeals has ruled that cosmetic laser hair removal, a growing trend nationally, is not "health care," clearing the way for two women's negligence lawsuits to proceed.Tammy Ransbottom of North Liberty and Mary Maxie of Mishawaka last year sued OB-GYN Associates of Northern Indiana, of South Bend, over burns and permanent disfigurement they say they suffered during cosmetic laser hair removal. Specifically, they claim a nurse who performed the procedures, without a doctor present, had set the laser device too high.
OB-GYN Associates, a medical practice, asked St. Joseph County Circuit Court Judge Michael Gotsch to dismiss Ransbottom's suit, arguing the procedures were medical in nature and therefore were subject to Indiana's Medical Malpractice Act.
Such a finding would have required the plaintiffs to initially file their complaints with a three-physician "medical review" panel, under the auspices of the Indiana Department of Insurance. If the panel had found their claims were not frivolous, Ransbottom and Maxie could have filed suit in court, the process all claims of medical malpractice follow in Indiana. * * *
Attorney Vincent Campiti, representing Maxie and Ransbottom, said they are glad not to have to undergo the medical review panel process, which can take a year or two itself before a court case even begins. "This will mean a lot less expense; it's less time-consuming and it gives us immediate access to the courts," Campiti said.
Being allowed to pursue the cases as simple negligence lawsuits also exempts them from the $1.2 million damages cap to which medical malpractice cases are subject, Campiti said, while noting he has no idea whether his clients' damages will be that high.
Posted by Marcia Oddi on May 10, 2008 11:32 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Lake Superior Court judge's signature allegedly forged on order
Marisa Kwiatkowski of the NWI Times reports:
CROWN POINT | A former probation department secretary forged a Lake Superior Court judge's signature to stop the garnishment of her wages, according to a Lake County police report.The garnishment was ordered out of the woman's county paycheck last September to pay off a more than $21,000 debt she owed to Fairlane Credit LLC, court records show.
No charges had been filed against the woman as of Friday. Lake County Prosecutor Bernard Carter said there is insufficient evidence to prove it was the woman who forged the order.
The doctored order was discovered late last year when an attorney for Fairlane Credit LLC, the plaintiff in the credit case against the woman, complained it was not receiving its money.
Lake Superior Court Judge Elizabeth Tavitas had granted an order Sept. 6 to garnish the woman's wages to pay off the debt, court records show.
Thirteen days later, an order reversing the garnishment was filed in the clerk's office with what appeared to be Tavitas' signature, according to a document file stamped Sept. 19.
Tavitas and her magistrate were out of town at an Indiana judicial conference Sept. 19, according to Tavitas' secretary.
The woman used her position with the Lake County Criminal Court Probation Department to sign Tavitas' name and file stamp the order, a Lake County police report alleges.
Posted by Marcia Oddi on May 10, 2008 11:26 AM
Posted to Indiana Courts
Ind. Courts - "Chris Teagle to succeed Lennington on bench"
Rick Yencer reports today in the Muncie Star-Press:
MUNCIE -- Republican attorney Chris M. Teagle next week will succeed Democrat Wayne Lennington as judge of Delaware Circuit Court 5.Gov. Mitch Daniels announced the appointment Friday afternoon, hours before a local roast of Lennington, who has resigned effective May 15 in the wake of a probe by a state commission that oversees judicial conduct, and a criminal investigation by local and state authorities.
Teagle, 48, was the only person who applied for the job, according to Brad Rateike, spokesman for the governor.
"(Teagle) was chosen because he possesses the qualities Gov. Daniels looks for in a good judge," Rateike said. "He is extremely intelligent, experienced, fair, and above all else, a man of integrity." * * *
Teagle also is the Republican nominee for the Circuit Court 5 bench and will face veteran lawyer Tom Cannon Jr., who won the Democratic nomination on Tuesday, in the Nov. 4 general election. * * *
Circuit Court 1 Judge Marianne Vorhees, the county's presiding judge, was glad the appointment came quickly. Other judges have handled a portion of Lennington's caseload since he agreed to give up jurisdiction of criminal cases after reports of investigations into his business dealings and judicial conduct.
"Hopefully, we can get back to some normalcy," Vorhees said.
Teagle's appointment is effective May 16, the day after Lennington's resignation takes effect.
Posted by Marcia Oddi on May 10, 2008 11:20 AM
Posted to Indiana Courts
Ind. Courts - "Colleagues put retiring judge Wayne Lennington on hot seat"
For background, see this ILB entry from May 3rd, headed "Lennington scandal could play role in race for Delaware Circuit Court 5."
Today Rick Yencer of the Muncie Star-Press reports:
Three generations of Lenningtons have practiced law or served as Delaware County judges over the past century.On Friday, members of the Muncie Bar Association and county court system paid their respects to Delaware Circuit Judge 5 Wayne J. Lennington, who is retiring next week, with a good-hearted roast at Springwater Park.
More than 100 people, including friends and family of Lennington, heard plenty of courtroom tales about Lennington's life as a lawyer and judge.
Lennington, 77 -- who resigned this spring amid a judicial conduct review and criminal investigation into his business dealings -- said he was looking for a job, but is likely to continue practicing law. * * *
Attorney Charles "Chic" Clark, Lennington's legal counsel in dealings with the state disciplinary commission, recalled telling his client to let his attorney do the talking when news of the disciplinary settlement came.
"Less than 24 hours after that conversation, I was reading my newspaper and that dumb ---- made a quotation in the newspaper," Clark said.
Clark's next conversation was with Meg Babcock, counsel for the Indiana Judicial Qualifications Commission, who was upset with Clark over Lennington's remarks.
"Don't raise hell with me," Clark recalled telling Babcock. "He did it." * * *
One of the biggest laughs came just before Lennington's longtime friend, attorney Don Dunnuck, spoke.
Ralph and Vicki Craig, a member of Lennington's court staff, led in a donkey wearing a judicial robe and Lennington's trademark bow tie.
Posted by Marcia Oddi on May 10, 2008 11:13 AM
Posted to Indiana Courts
Ind. Gov't. - "GOP's Zoeller declares for attorney general race"
The Louisville Courier Journal reports:
New Albany native Greg Zoeller said yesterday that he has filed his formal "declaration of candidacy" for state attorney general with the Indiana Republican State Committee.
AdvertisementZoeller is chief deputy to Indiana Attorney General Steve Carter, who has announced that he will not seek re-election. * * *
Each party selects a nominee for attorney general at its state convention. The Republican convention is June 2.
In addition to Zoeller, Valparaiso Mayor Jon Costas has said he intends to seek the Republican nomination for the office.
Posted by Marcia Oddi on May 10, 2008 09:11 AM
Posted to Indiana Government
Ind. Decisions - More on: Federal court grants preliminary injunction re judicial speech rights
Updating this ILB entry from May 6th, the Fort Wayne Journal Gazette has an editorial today headed "Free speech for judges":
The Indiana Supreme Court should accept the message in a ruling by a Fort Wayne federal judge in a case involving a candidate for Kosciusko Superior Court and restore the First Amendment rights of judicial candidates.In understanding the Indiana Supreme Court's position, it may be useful to review the detailed Indiana Right to Life Questionnaire.U.S. District Court Judge Theresa Springmann ruled this week that the state’s highest court temporarily cannot enforce its rules that effectively prohibit judicial candidates from responding to questionnaires about their positions on issues. State judicial canons of ethics prohibit attorneys seeking judgeships from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.”
The ruling came about 18 months after another federal judge struck down the Indiana rule. A federal appeals court overturned that decision, however, ruling that the group that brought the case, Indiana Right to Life, was not directly affected and lacked proper standing.
Springmann’s decision came, appropriately, on Tuesday, the same day that one of the candidates involved in the case, Torrey Bauer, was narrowly defeated in the Kosciusko County Republican primary for a Superior Court nomination. Bauer, unaware that the earlier ruling had been reversed, had filled out a questionnaire from Indiana Right to Life and feared he would face disciplinary action. Because he and a sitting judge filed the case along with Indiana Right to Life, the issue of proper standing should not block this case from succeeding.
The current rules exist for good reason. A judge must weigh each case on its own facts and applicable law, and improper statements made during a campaign can portray a judge as deciding how he or she will handle a case before hearing it.
But voters have a right to hear candidates’ opinions on issues, and in 2002, the U.S. Supreme Court threw out similar rules in Minnesota.
Attorney James Bopp Jr. successfully argued this week’s case. Bopp said Indiana’s rule goes too far, infringing on the First Amendment rights of judicial candidates. Indiana can still have a rule barring candidates from saying how they would rule on specific cases, he said, without prohibiting them from commenting on broader issues.
And if a candidate says too much about specifics, voters will react accordingly. “Voters want impartial judges,” Bopp said. “If a judicial candidate goes too far, he’s going to actually lose votes.”
Indeed, how much discretion a candidate uses in campaigning could well give voters insight into how the candidate would serve on the bench.
By issuing a preliminary injunction, Springmann ruled that the plaintiffs are likely to prevail in a trial, though the court has yet to rule on the merits of the lawsuit. Still, this week’s injunction combined with the 2006 ruling and the U.S. Supreme Court ruling in the Minnesota case should cause the state Supreme Court to revise its rules and restore proper First Amendment rights to judicial candidates.
Posted by Marcia Oddi on May 10, 2008 08:58 AM
Posted to Ind Fed D.Ct. Decisions
Friday, May 09, 2008
Ind. Decisions - Transfer list for week ending May 9, 2008
Here is the Indiana Supreme Court's transfer list for the week ending May 9, 2008.
There were two transfers granted this week. They are summarized in this ILB entry from May 8th.
Over four years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Posted by Marcia Oddi on May 9, 2008 03:24 PM
Posted to Indiana Transfer Lists
Ind. Decisions - More on: State loses auto-dialer case in trial court
Updating this ILB entry from Feb. 15, 2008, the ILB has received a press release from attiorney James Bopp, Jr. that begins:
Today, the Indiana Democratic Party and the Indiana Republican Party asked the Indiana Supreme Court to allow them to file a joint friend-of-the-court brief in a case involving computer-generated political calls. The case, State of Indiana v. American Family Voices, Inc., was initiated by the State of Indiana against American Family Voices and others for using automatic dialing machines to make political calls during the 2006 election cycle. The case was dismissed by the trial court, based on the Defendant’s argument that the statute only prohibited commercial calls. The Attorney General appealed and the case was taken up directly by the Indiana Supreme Court, bypassing the Court of Appeals. Appellees are represented by DeLaney & DeLaney, LLC.Oral argument in the case is scheduled for June 16, 2008.
Both political parties have a direct interest in the case as they, along with their candidates, would use robocall technology to make political calls, if it were legal. Both political parties believe that the First Amendment protects their right to make computer-generated political calls. The political parties will argue in their friend-of-the-court brief that the Indiana robocall law should be construed to only reach commercial calls, in order to avoid a finding that the statute is unconstitutional because it also prohibits political calls.
Posted by Marcia Oddi on May 9, 2008 02:34 PM
Posted to Ind. Trial Ct. Decisions
Law - "Empty Homes Spur Cities' Suits: Banks, lenders sued to recover costs"
Julie Kay of The National Law Journal has an interesting article today that begins:
Homeowners aren't the only ones claiming they were victimized by the subprime foreclosure debacle sweeping the nation.Cities now dealing with scores of abandoned, foreclosed homes have started suing banks and mortgage companies to recoup their costs, while other cities are hauling lenders before code enforcement boards and county courts to force them to maintain abandoned properties.
The innovative legal tactics are designed to recoup the city's lost property taxes as well as the cost of fire departments, police, code enforcement or even demolition -- any city services needed to clean up or deal with the foreclosed properties.
Cleveland; Baltimore; Buffalo, N.Y.; and Minneapolis, Minn., have all filed lawsuits against lenders or developers based on the devastating effects foreclosures have wreaked on their communities. The lawsuits were filed in recent months under different theories, in state and federal court.
Cleveland and Buffalo filed suits under public nuisance laws. Minneapolis' suit was brought on consumer fraud grounds, while Baltimore took the unusual approach of filing suit in federal court under alleged Fair Housing Act violations.
In addition to filing a lawsuit in February, Buffalo city prosecutors routinely haul banking officials before the local housing court to force them to fix up foreclosed and abandoned properties.
Posted by Marcia Oddi on May 9, 2008 02:27 PM
Posted to Indiana Law
Environment - More on: Dangers in commencing construction before permit is final
Updating this ILB entry from May 8th, Gitte Laasby of the Gary Post-Tribune has more today on the BP sir permit.
Christine Kraly of the NWI Times also has a story, titled "Appeal to BP permit in the works?," and including this quote:
The Office of Environmental Adjudication's two environmental law judges review IDEM decisions.Judge Mary Davidsen said her office has not yet received any appeals to BP's construction permit and that appeals are considered filed on the date they are mailed.
Although no one has stepped forward yet, some groups may be preparing to do so.
"We are carefully considering an appeal," said Howard Learner, president and executive director of the Environmental Law and Policy Center. "We, and our colleagues, are deciding whether and in what form to submit."
On the day the permit was approved, Ann Alexander, senior attorney for the Natural Resources Defense Council, said her group was "considering our options" in appealing.
The refinery may have to stop construction if a filed petition requests it be halted, Davidsen said. A hearing would likely be scheduled quickly to determine shuttering construction if such a request were made, she said.
If a permit appeal is successful, BP could be ordered to rip down what it has built, depending on its various environmental impacts, Davidsen added.
But Davidsen said breakdowns are rare, and facilities instead are ordered not to operate the equipment.
Posted by Marcia Oddi on May 9, 2008 02:18 PM
Posted to Environment
Ind. Decisions - Court of Appeals issues 5 today (and 19 NFP)
Yesterday the Court of Appeals posted 29 opinions, today there are 24 more. Get out your reading glasses!
For publication opinions today (5):
In Belden, Inc., and Belden Wire & Cable v. American Electronic Components, Inc., a 22-page opinion, Judge Barnes writes:
Belden, Inc., and Belden Wire & Cable Company (collectively “Belden”) appeal the trial court’s granting of partial summary judgment in favor of American Electronic Components, Inc. (“AEC”). We affirm.Paul Quiroz v. State of Indiana - Interesting arguments, including "Quiroz argues that because, at the time he pled guilty, the issue of whether enhanced consecutive sentences could be imposed was uncertain, the rule of lenity should be applied to his sentence," and "In his brief, Quiroz states that he “simply argues that given the instability in the law concerning sentencing, both on the federal and state level, that begun with Apprendi in 2000 and continues today, he should have the benefit of the Court of Appeals holding in Robertson.” However, sentencing affirmed.Belden raises four issues, which we consolidate and restate as: I. whether the limitation on damages on the back of Belden’s order acknowledgment applies to the parties’ contract; and II. whether Belden created an express warranty based on its prior assertions to AEC. * * *
[Re "I. Battle of the Forms"] In sum, we agree with the trial court’s conclusion that Section 2-207(3) applies to this case and that Section 2-207(3), not Section 2-207(2), controls the terms of the parties’ agreement. We also conclude that Section 1-205 does not establish a course of dealing in which AEC agreed to the limitation on damages. The trial court properly granted summary judgment in favor of AEC as to the issue of the applicability of Belden’s limitation on damages. * * *
[Re "II. Express Warranty"] Irrespective of whether the course of dealing established that AEC assented to Belden’s proposed limitation on damages, the parties’ course of dealing established that Belden made an express warranty regarding its compliance with the quality control standards. The limitation on damages and the express warranty are unrelated issues—there is no correlation between the two. * * *
[Conclusion] Belden’s limitation on damages is not a term of the parties’ contract and, by complying with AEC’s quality control program, Belden expressly warranted its compliance with AEC’s quality control program, which included the use of Quantum insulation. The trial court properly granted AEC’s partial motion for summary judgment and denied Belden’s partial motion for summary judgment. We affirm.
In State of Indiana v. Larry Ray , a 9-page opinion, Judge Darden writes:
Issue. Whether the trial court erred in finding that pursuant to Indiana’s Implied Consent Law, in order to effect the suspension of driving privileges for a refusal to consent to a chemical test for intoxication, the person must have been warned of that consequence after he has refused to submit to such a test. * * *In Steven Kendall v. State of Indiana , a 23-page, 2-1 opinion (a 13-page opinion and a 10-page dissent), Judge Kirsch writes:As indicated above, Deputy Campbell advised Ray three separate times that his “refusal to submit to a chemical test will result in a suspension of your driving privileges for one year.” In fact, Ray testified that Campbell had read the warning to him “multiple times.” There was no evidence that Ray did not understand the advisement and the consequence of his refusing a chemical test. We find that it would be a statutory interpretation producing an “absurd result[]” to require that despite the multiple warnings that expressly advised Ray that if he refused to consent to the chemical test, his license would be suspended, the statute nevertheless requires that he be so advised again after he refused the chemical test.
Deputy Campbell’s advisements to Ray complied with the statute, and the evidence established that Ray refused to consent to the chemical test offered. Therefore, the trial court erred as a matter of law when it held that these facts failed to satisfy the statutory requirements for suspension of Ray’s license. Reversed.
Steven Kendall appeals the post-conviction court’s denial of his Petition for Post-Conviction Relief. Kendall raises one issue on appeal, which we restate as follows: whether Kendall received ineffective assistance of appellate counsel. We affirm. * * *[Note: the opinion includes a number of interesting footnotes.]When the Supreme Court decided Blakely on June 24, 2004, Kendall’s case was fully briefed in this court. Our opinion was handed down on August 3, 2004. Typical procedure for this court would have been to circulate the draft opinion for votes and comments on July 13, 2004—at least three weeks prior to the hand down date. Thus, appellate counsel would have had a maximum of twelve working days to read and analyze Blakely and seek to file an amended brief or twenty-seven working days to seek rehearing. * * *
Given the legal environment of the time, an environment marked by unpredictability and uncertainty on this court and elsewhere regarding the application of Blakely, we do not find that counsel was ineffective for failing to seek leave to file an amended brief or to raise the issue on rehearing or petition to transfer. We commend the post-conviction court for its clear and thoughtful entry. Affirmed.
MAY, J., concurs.
RILEY, J., dissents with separate opinion. [which begins] I respectfully dissent. First, our supreme court has established a liberal approach permitting defendants with Blakely claims, whose counsels otherwise would have waived those claims under prior Indiana legal precedent, opportunity to litigate their claims; and secondly, when Kendall’s counsel’s performance is compared to the diligent work of other attorneys representing clients similarly situated with arguable Blakely claims, it is apparent that Kendall’s counsel’s performance fell below prevailing professional norms. I would conclude that fairness requires we find Kendall’s appellate counsel ineffective in this situation.
Datwone B. Fry v. State of Indiana - Affirmed. Interesting comprehensive discussion of admission of cell phone records, including whether they are self-authenticating.
NFP civil opinions today (5):
Janet Parfenoff v. Dawn Parfenoff (NFP) - "Parfenoff has failed to demonstrate prima facie error in the issuance of a protective order against her under the Indiana Civil Protection Order Act. Judgment affirmed."
In the Matter of the Paternity of G.K. (NFP) - "Shannon Gibson (“Mother”) appeals the trial court’s grant of a petition for visitation filed by Kevin Slicker. Mother raises two issues, which we revise and restate as: I. Whether the trial court erred by denying Mother’s motion to consolidate the paternity action with the adoption proceeding; and II. Whether the trial court abused its discretion by awarding stepparent visitation. We reverse and remand."
Jessica (Reishus) Anderson v. Devin A. Reishus (NFP) - "Jessica (Reishus) Anderson (Mother) appeals from the final dissolution decree that awarded sole custody of her minor child, D.R., to Devin Reishus (Father). On appeal, Mother presents the following issues for review: 1. Did the trial court err in failing to provide that Mother should have the right of first refusal to care for D.R. when Father was unavailable but D.R.’s paternal grandmother was available? 2. Did the trial court abuse its discretion in awarding Father sole custody of D.R.? We affirm."
Term. of Parental Rights of A.S., S.W., T.R., and Z.S., Angela Christian Shouse v. St. Joseph County Dept. of Child Services (NFP) - "Based on the record before us, sufficient evidence existed to support the trial court’s finding that there was a reasonable probability that the conditions that resulted in the Children’s removal would not be remedied. We reverse a termination of parental rights “only upon a showing of ‘clear error’ — that which leaves us with a definite and firm conviction that a mistake has been made.” Egly v. Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We find no such error here and, therefore, affirm the trial court. Affirmed.
Rodney Scott Monce v. Midwest Warehouse Corp. (NFP) - "Midwest did not discriminate against Monce because he was a person with a disability. Instead, Monce was terminated from the job of outside sale representative because he could not perform the essential duties of that position.
Like the trial court, we find no genuine issue of material fact to preclude entry of summary judgment in favor of Midwest on Monce’s claims that he was fired in violation of the ADA or in retaliation for filing a worker’s compensation claim. Affirmed."
NFP criminal opinions today (14):
State of Indiana v. Clint A. Jervis (NFP) - "Clint A. Jervis was charged with four counts, which, listed in order, were possession
of chemical reagents or precursors with intent to manufacture methamphetamine as a Class C felony, dealing in methamphetamine as a Class B felony, dealing in a sawed-off shotgun as a Class D felony, and dealing in methamphetamine as a Class A felony. He was convicted of Counts I and III after the trial court granted his motion for directed verdict on Counts II and IV. The State appeals, raising the following issue: whether the trial court erroneously granted Jervis’s motion for directed verdict on Counts II and IV. * * *
"Although we reverse the erroneous judgment on the evidence in favor of Jervis, he cannot be retried because an erroneous entry of acquittal by the trial court acts as an acquittal for double jeopardy purposes."
State of Indiana v. Renda Hall (NFP) - "The State petitions for rehearing following our decision in State v. Hall, No. 90A04-0709-CR-545 (Ind. Ct. App. Feb. 26, 2008), in which we affirmed the trial court’s granting of Hall’s motion to suppress. Although we grant the State’s petition for rehearing, we affirm our decision in all regards. We issue this opinion on rehearing simply to clarify our earlier decision. * * *
"Any evidence recovered from the car, including the paraphernalia and drugs, was found as a result of Hall’s illegal detention. Regardless of whether the evidence was discovered pursuant to a dog sniff or a search conducted by a police officer, it is fruit of the poisonous tree."
Harold E. Mummey v. State of Indiana (NFP)
Shannon Carlson v. State of Indiana (NFP)
David Ohm v.State of Indiana (NFP)
Todd E. Barlow v. State of Indiana (NFP)
Roger Davis v. State of Indiana (NFP)
Tyrone Rayford v. State of Indiana (NFP)
David R. Eggert v. State of Indiana (NFP)
Johnny White v. State of Indiana (NFP)
Aaron Giroud v. State of Indiana (NFP)
Dennis Eugene Scott v. State of Indiana (NFP)
Susie Fisher v. State of Indiana (NFP)
Barry Fitzgerald v. State of Indiana (NFP)
Posted by Marcia Oddi on May 9, 2008 11:33 AM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Results of the Feb. 2008 Indiana bar exam available online
Posted by Marcia Oddi on May 9, 2008 11:30 AM
Posted to Indiana Courts
Thursday, May 08, 2008
Ind. Courts - Still more on: "Howard County Judge accuses deputy prosecutor of drug use"
Updating this ILB entry from May 3rd, the Kokomo Perspective has an editorial today that begins:
Judge Stephen Jessup has made a career out of inconsistency on and off the bench, and his latest act -- admitting in open court to accusing deputy prosecutor David Steele of drug use -- goes well beyond the realm of eccentricity or indifference to what is expected from a person in his position.
Posted by Marcia Oddi on May 8, 2008 06:52 PM
Posted to Indiana Courts
Ind. Law - Still more on: "Booksellers incensed over sexual content law"
Not only booksellers, but the Indianapolis Museum of Art, according to this longish story by Tim Evans of the Indianapolis Star, updating his earlier story from yesterday. Today's story begins:
The Indianapolis Museum of Art, which sells art books containing images of nudes painted by the Old Masters, joined a civil rights group Wednesday in suing over a law that would require a business selling pornography to register with the state.Maxwell L. Anderson, Melvin & Bren Simon director and chief executive of the IMA, said he is concerned about the law's effect on the museum and the broader message it sends.
Advertisement"Our role in this community is to foster tolerance for creativity, and this law is completely in opposition to that mission," Anderson said.
He added that the law "is not a signal of a progressive place."
Posted by Marcia Oddi on May 8, 2008 04:03 PM
Posted to Indiana Law
Ind. Decisions - Court of Appeals issues 5 today (and 24 NFP)
More details to follow
For publication opinions today (5):
In Town of Georgetown v. Edwards Community, Inc. et al , an 11-page opinion, Judge Mathias writes:
The Town of Georgetown (“the Town”) appeals the order of the Floyd Circuit Court imposing a moratorium on future attempts by the Town to annex certain territories and awarding attorney fees to Edwardsville Community, Inc. (“Edwardsville”). We reverse. * * *Gary Gerlach v. Larry Gene Woodke - "Although we agree with Gerlach that the record is not clear about what Woodke was doing at the time of the injury and thus may not have been injured while performing maintenance and repair work, this oversight on our part does not change our conclusion that Woodke was not a farm or agricultural employee at the time of his injury. Accordingly, we grant Gerlach’s petition for purposes of correcting our oversight and addressing the other issues raised in the petition, but otherwise affirm our original opinion in its entirety."The trial court erred in imposing a forty-two month moratorium on future annexation attempts by the Town because Edwardsville’s remonstrance was facially insufficient under Section 11 [IC 36-4-3-11]. Because of this, the trial court could not properly set a hearing pursuant to Section 11(c), and without a hearing set under Section 11(c), there was no trigger for the moratorium once the Town repealed the annexation ordinances. The trial court also erred in ordering the Town to pay Edwardsville costs because there was no judgment on the merits of the remonstrance.
Dennis Peterson v. Charles Lambert, John Doe, et al - "Peterson’s claims rest on the allegation that in confiscating his baby powder and addressing or failing to address his grievances thereafter, the defendants were acting willfully and wantonly and clearly outside the scope of their employment. Baby powder is on the list of personal property that is prohibited at MCF. Prison administrators are accorded “wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979). Peterson has alleged no facts that would support his contention that the defendants were acting willfully, wantonly, or outside the scope of their employment in confiscating a prohibited item, and he has not made a claim challenging MCF’s policies prohibiting certain items.1 Peterson’s complaint lacks an arguable basis in law or fact and the trial court properly dismissed both of his claims."
In Allstate Insurance Co. v. Ted and Rosella Fields, an 11-page opinion, Judge Mathias writes:
A default judgment was entered against Allstate Insurance Company (“Allstate”) in Lake Superior Court on a claim of bad faith filed by policyholders Ted and Rosella Fields (“the Fieldses”). Thereafter, a jury trial was held to determine the amount of damages. The jury awarded compensatory damages in the amount of two million dollars and punitive damages in the amount of eighteen million dollars. The trial court reduced the punitive damage award to six million dollars pursuant to Indiana Code section 34-41-3-4. Allstate appeals and raises the following dispositive issue: whether the trial court erred when it denied Allstate’s motion for partial summary judgment on the bad faith claim. We reverse and remand for proceedings consistent with this opinion. * * *In OB-GYN Associates of Northern Indiana, P.C. v. Tammy Ransbottom, a 12-page opinion, Judge Friedlander writes:As in Fields I, we conclude that the trial court erred when it denied Allstate’s motion for partial summary judgment. For this reason, Allstate should not have had a default judgment entered against it on the bad faith claim. Accordingly, we reverse and remand to the trial court with instructions to vacate the jury’s verdict and to enter summary judgment in favor of Allstate on the Fieldses’ bad faith claim.
Upon interlocutory appeal, Ob-Gyn Associates of Northern Indiana, P.C. (Ob-Gyn) appeals the denial of its motion to dismiss a negligence action against it filed by Tammy Ransbottom. The propriety of that ruling hinges upon the answer to the following question: Is cosmetic laser hair removal “health care” within the meaning of Indiana‟s Medical Malpractice Act? We affirm. * * *NFP civil opinions today (10):In summary, we conclude that the laser hair removal treatment administered by Roschek did not constitute health care with the meaning of the Medical Malpractice Act, and the trial court did not err in denying Ob-Gyn‟s motion to dismiss.
Mary Ann Smith-Dobben v. Richard Lee Dobben (NFP) - "The findings amply support the trial court’s conclusion that there had been substantial changes in circumstances, and that it was in the best interest of E. and D. for Father to be granted physical and legal custody of them, and in the best interest of J. that Mother be granted physical and legal custody of him. Affirmed."
Michael and Mamie Williams v. Gregory Hilycord (NFP) is a 2-1 opinion, with the majority writing: "A default judgment was entered in Bartholomew Superior Court against Michael and Mamie Williams (“the Williamses”) voiding a land sales contract they had entered into with Gregory Hilycord (“Hilycord”) for the purchase of a large tract of land in Bartholomew County. The Williamses filed a motion to set aside default judgment, which was denied. They appeal and argue that the trial court erred when it granted default judgment in favor of Hilycord because the remedy of forfeiture was not warranted by the allegations in the complaint. We reverse and remand for proceedings consistent with this opinion."
C.L. v. R. F. (NFP) - "Having concluded that the trial court erred by failing to conduct a hearing on Father’s motion to dismiss, we need not consider Mother’s remaining claims. The judgment of the juvenile court is reversed and remanded for further proceedings."
Amsted Industries Inc. d/b/a American Steel Foundries v. Jess A. Kaufman and Crane America Services (NFP) - "In that the language of the indemnification provision before us essentially mirrors that in Moore, the result is the same. When the dependent clauses are read together, the provision as a whole, in clear and unequivocal terms, expressly addresses the subject of Crane America’s indemnification of Amsted for Amsted’s own negligence. Thus, Crane America knowingly and willingly accepted its obligation to indemnify Amsted unless the injury was solely caused by the negligence of Amsted. We therefore conclude that the trial court erred in granting Crane America’s motion for summary judgment and accordingly reverse. Furthermore, as we conclude that the indemnification provision is valid and enforceable, we also conclude the trial court erred in denying Amsted’s motion for partial summary judgment. Reversed and remanded for further proceedings."
Commissioner, Indiana Department of Environmental Management v. Bulk Petroleum Corp. (NFP) - "We do not believe these circumstances are those of clear, uncontested unlawful conduct necessitating the application of the per se rule, but rather the breach of an agreement as expressed in the Further Investigation Report and Corrective Action Plan. The per se rule has no application in this case. Therefore, IDEM was required to demonstrate irreparable harm in order to obtain the requested preliminary injunction. The trial court did not err in denying the petition."
Francis "Swede" Colen v. Ohio County, Indiana, et al (NFP)
In the Matter of R.W. and M.W. (NFP)
Keith Allen Matthew v. Patricia Jean Matthew, Robert L. Arthur (NFP)
Marriage of Gail (Marquart) Zermano v. David M. Marquart (NFP)
NFP criminal opinions today (14):
James E. Metz v. State of Indiana (NFP)
Victor Crews v. State of Indiana (NFP)
Dwayne Ellington, Jr. v. State of Indiana (NFP)
Marlon J. Davis v. State of Indiana (NFP)
James G. Wilson v. State of Indiana (NFP)
Michael A. Dersch v. State of Indiana (NFP)
Nicholas Gaetz v. State of Indiana (NFP)
Henry Luke Kellems, Jr. v. State of Indiana (NFP)