Tuesday, March 11, 2014
Ind. Gov't. - "Conflicting state and federal policies will likely cost Indiana same-sex couples more when they file their tax returns this year, experts say"
This AP story today by Summer Ballentine reports that it will cost more to file your tax returns this year if you are an Indiana same-sex couple legally married by another state, because filling out your Indiana tax return will be more complex. But the second part of the story is based on a false premise ...
A federal revenue ruling issued (Revnue Ruling 2013-17), issued Sept. 16, 2013, "clarified that a same-sex couple’s marital status for federal tax purposes is determined by the laws of the state where they got married — not the state where they reside," as explained in this release by the Boulay accounting firm, that continues:
Revenue Ruling 2013-17 addresses only the federal tax treatment of same-sex spouses. States that don’t recognize same-sex marriages aren’t required to permit same-sex spouses to file jointly or to extend to them any benefits of married status. But the ruling will have an indirect impact in states that don’t recognize same-sex marriages but require taxpayers to calculate their state tax liability based on information from their federal returns.That is the case in Indiana. Rather than simply filing a federal joint return as a married couple, and a state joint return based on the adjusted gross income (AGI) calculated in the federal return, Indiana's Department of Revenue (IDOR) requires the same-sex couple to prepare and submit individual State of Indiana returns as though they were not married. To derive the AGI to use in the individual Indiana returns, each partner must first fill out a token federal individual return.*
But officials stopped short of creating a tax worksheet to help married same-sex couples recalculate their joint income before they file separate state tax forms, as Wisconsin and Michigan have done. That is the approach recommended by the nonpartisan Tax Foundation to help reduce confusion.Theoretically, Indiana could have gone much further than Wisconsin and Michigan and elected to allow same-sex Indiana couples filing joint federal returns to also file joint state returns, but that would seem very unlikely. The Governor of Missouri, for example, attempted to allow that by executive order, as this Jan. 10, 2014 story by the Baptist Press news service reports:
[Governor] Nixon's executive order was issued last November and directed the Department of Revenue to accept combined returns from same-sex couples who properly filed a federal joint return with the IRS. The IRS has decided to permit same-sex couples to file a joint federal return if the parties were married in a state that permits same-sex marriage. The IRS decision did not bind state governments and did not mandate that states like Missouri, where same-sex marriage is unlawful, permit joint returns under state law.It seems very unlikely that either Governor Pence or his IDOR would take this step. Rather, the IDOR issued the guidance cited above, requiring the preparation of individual Indiana returns. And, as the AP story reports, that means that same-sex Indiana couples who are eligible to file joint federal returns have to go through additional steps in Indiana.
But then the remainder of the AP story is based on the same false premise the ILB wrote about at length in this March 5, 2014 post. From the AP story:
Indiana was on track to match IRS tax policies this year until Sen. Brandt Hershman, R-Buck Creek, made a late-session change that would prevent the state from adopting the same-sex marriage provision. Indiana does not recognize gay marriage.What does that mean?
- Does it mean Gov. Pence, or his IDOR, was about to write a new guidance permitting same sex Indiana couples filing joint federal returns to also file joint state returns?
- Or does it mean that by updating the references in IC 6-3-1-11 to "Jan. 1, 2014" via SECTION 8 in HB 1380 (discussed at length in the March 5th ILB post), Indiana, per the AP story, would have been "adopting the same-sex marriage provision."
*Or, to look at it another way, this year Indiana same-sex couples legally married in another state may file joint federal tax returns, but must file individual Indiana tax returns as they have in prior years.
Ind. Law - "Changed wording delays debate on right to hunt, fish"
Maureen Hayden, CNHI Statehouse Bureau, writes in the Rushville Republican:
INDIANAPOLIS – A much-debated ban on same-sex marriage wasn’t the only proposed constitutional amendment to get knocked off this November’s ballot. Gone, too, is the less contentious proposal to protect Hoosiers’ right to hunt and fish.See also this ILB post from Sept. 26, 2013.
Backers of the measure say enshrining the right to “hunt, fish, and harvest wildlife” in Indiana’s Constitution will protect the state’s heritage from animal rights and anti-hunting activists. Without it, they fear, future generations of sportsmen will see limits on hunting seasons, more restrictions on hunting weapons, and increased protections for prey. * * *
But similar to the fate of the same-sex marriage amendment, a change to the hunting and fishing resolution’s language – removing a phrase covering the right to farm – postpones any public vote until at least 2016. [That version sought to protect the right “to engage in the agricultural or commercial production of meat, fish, poultry, or dairy products.”] * * *
Earlier this year, lobbyists representing farmers pulled their support after opponents, lead by the Hoosier Environmental Council, argued the amendment would prevent future laws protecting private landowners and regulations limiting factory farms and puppy mills.
Steele reluctantly pulled the farming language, blaming agricultural interests as gutless. “I told them to grow some horns because they’re going to get run around the pasture, and there’s no language that’s going to mollify the opposition,” he said at the time.
A newly worded resolution – minus the farming language – starts the process anew. The exact language contained in Senate Joint Resolution 9 will have to be passed by the next elected General Assembly before it can go before voters.
Ind. Law - US News 2015 Law Rankings are Out
So reports Above the Law in this post.
Unfortunately, it appears that the ILB did not report last year's (2014) rankings. Here are the relevant numbers from the 2013 rankings.
Ind. Law - "Prosecutors' advocate was quiet man of steel"
When Steve Johnson, longtime advocate for Indiana’s county prosecutors, died unexpectedly last week at the age of 66, I tweeted the Statehouse had lost “a quiet voice in a place of bombast.”
Lisa Swaim, Cass County’s chief deputy prosecutor, described it differently. For prosecutors, she said, losing Johnson was like losing Superman.
Both are true. For the nearly 15 years Johnson led the Indiana Prosecuting Attorneys Council — and the 25 years he spent as its research director — he exhibited both the mild manner and man-of-steel qualities admired by so many.
“He was the most knowledgeable man I ever met about Indiana criminal law,” said lawyer and state Senate President David Long. “And his word was his bond.”
Monday, March 10, 2014
Ind. Gov't. - Looking at the efficacy of legislative study committees, then and now
Doug Masson blogs today on the effectiveness of summer study committees. Some quotes:
Tom LoBianco, writing for the Associated Press has an article on summer study committees entitled “Legislative Studies often precede tough action.” That’s true, but – as the article also discusses – it’s often where legislation goes to die. * * *ILB: The ILB will also weigh in on summer study committees, particularly those that meet every year and are assigned topics by the Legislative Council. My impression is that they often cover too many issues, with little time spent on each one. For instance, an issue may be a topic on one meeting agenda, several speakers may testify, and that likely will be the end of it. At the last meeting there is a final committee report that may summarily address the issue.
[T]he summer study committee is an area where the General Assembly could stand to study the committee process itself and maybe implement more formal procedures. From my perspective anyway, the process seemed fairly slapdash. The witnesses and materials reviewed by legislators seemed arbitrary and far from comprehensive. The meetings could be sporadic and often rushed at the end of the summer and in the first half of fall. The meetings were, at times, pro forma.
The quality of the studies was largely dependent on who the chair of the committee was. Among other things, some legislators are simply more diligent than others. And, of course, if the study gets assigned to a committee where the chairperson isn’t very interested, not a lot is going to happen. (Though that’s true of the regular session committee as well.)
Another factor is that we still have, at least nominally, a part time legislature. These lawmakers mostly have jobs in the “real” world as well. And they have a lot of catch up to do after spending the winter and early spring in session. So, beefing up the summer study committees will be challenging under the best of circumstances.
LoBianco's story points to the exception, such as:
The best example from this year could be the regulations for religious daycare centers that lawmakers are on the verge of approving. Proposed regulations were often stymied in previous sessions, despite grim reports of child deaths and multiple newspaper investigations that exposed widespread problems. But it wasn’t until after lawmakers spent a summer reviewing the issue that new rules seemed possible.There was a time in Indiana when most study committees conducted deeper studies and published comprehensive reports. I was a staffer at the Legislative Services Agency during that period, beginning in the 1960s, when there were still biennial sessions, meaning that the interim for studies was much longer. The materials I have been putting together on constitutional revision in Indiana in the 1960s and 1970s demonstrate the kind of report that resulted. Of course, some of these efforts had their own full-time staffs. But many of the final reports listed in Vol. 2, pp. 5-6 of the Biennial Report to the Indiana General Assembly, 1969, for instance, were staffed out of the LSA, just as is done now.
Environment - Mounds Lake reservoir plan opposed by environmental groups
The ILB first learned of the proposed Mounds Lake Reservoir yesterday via this letter in the Indianapolis Star, signed by Rosemarie Jeffery of Muncie. It begins:
Shortly after moving to Muncie in 1992, my family and I visited Mounds State Park. We have since visited many times each year. We have delighted in the bountiful spring wildflowers, and canoeing down the river is a great way to enjoy the wooded corridor through the park in the summer. Another wonderful facet of Mounds State Park is that it encompasses some of the best preserved mounds built by the prehistoric Adena people. The Great Mound is thought to have been built around 160 BCE.The Anderson Herald Bulletin had a story yesterday by Ken de la Bastide headed "Audubon Society opposed to reservoir: Concern is impact on Mounds State Park." Some quotes:
We have appreciated Mounds Park even more since realizing that it is one of few high-quality natural areas remaining in East-Central Indiana. Therefore, it is with great dismay that we have read about the Mounds Reservoir Project. This project would result in the loss of one-third of Mounds State Park, including the state-dedicated Mounds Fen Nature Preserve. The habitat loss both in the park and the wooded corridor along the river would be a tremendous blow to wildlife.
ANDERSON – Another environmental group has voiced opposition to the proposed Mounds Lake reservoir based on concerns over the potential impact on Mounds State Park.The "Mounds Lake on the White River" project has a sophisticated website, access it here.
The Robert Cooper Audubon Society, which represents 500 members in Madison, Delaware, Henry, Grant, Jay, Randolph and Blackford counties, stated the proposed reservoir would “exact a heavy cost to the natural environment by inundating at least one-third of Mounds State Park."
Marty Benson, a spokesman for the Indiana Department of Natural Resources, said DNR has not taken an active role in the discussion concerning the reservoir.
“Nothing has been formally done,” he said. “Until the permits required are applied for the DNR will not have an active role.”
State Sen. Tim Lanane, D-Anderson, said the process surrounding the proposed reservoir has to be transparent.
“My concern is the impact on Mounds State Park,” he said. “The state park is an important asset for community and Indiana. We need to know what the impact will be and the impact on the White River.”
Lanane said residents should insist on transparency throughout the discussion period on the proposed reservoir.
“There are still a lot of questions that need to be resolved,” he said.
Among the consequences would be the loss of shaded hiking trails along White River that would be submerged, the group said in a press release. Another concern is that the Adena-Hopewell Indian mounds would be subjected to a greater threat of flooding and erosion.
“The complete destruction of the Mounds Fen State Nature Preserve,” Sarah McKillip, president of the local society, said. “The board meets four times a year and voted unanimously to approve the opposition to the reservoir.”
McKillip said group members have attended several of the public forums on the reservoir, but this is the first time it has voiced opposition to the plan.
“We have reviewed the impact of the proposed change to the White River channel that would inundate the Mounds Fen Nature Preserve,” she said. “That’s our main concern right now.”
She said the proposed reservoir would destroy a unique biodiversity area of the Fen.
The Fen, designated in 1980, is remarkable not only for its “clean water” but the profusion of wild flowers, indicating a high-quality woods with minimal disturbance, McKillip said. She said the park also contains numerous critically important animal and plant species native to Indiana.
The local Audubon Society noted that 360,000 people visited Mounds State Park last year.
“We are going to look at the environmental impact of the proposed reservoir,” McKillip said, “and the potential impact of the reservoir along the entire White River watershed.”
Currently a Phase II study of the proposed Mounds Lake Reservoir is being undertaken with a $600,000 grant from the state. * * *
Mounds Lake Reservoir, which would cost an estimated $350 million to $450 million to create, would stretch approximately from East Lynn Street in Anderson east by northeast around Chesterfield and Daleville into Delaware County, ending just north of Delaware County Road 300 South.
Ind. Gov't. - Warrick County seeks to assure that vote miscounting doesn't reoccur
The AP story in the FWJG Sunday began:
BOONVILLE – A southwest Indiana county is developing a new accountability system using “archaic” methods after a discovery that thousands of votes weren’t counted in the 2012 general election.
Nearly 3,800 early votes cast in Warrick County during the 2012 general election went uncounted because of an error by an electronic voting machine technician. The lost ballots included that of county Clerk Sarah Redman, who said her top priority this year is having every vote count – even if it means using an old-fashioned system of checks and balances.
“When I say archaic, I mean old pen and paper that I want (them) to jot down. I don’t want to go by any reports that shoot out of a computer,” Redman told the Evansville Courier & Press.
The problem was discovered by a Democratic precinct leader as he cross-referenced precinct summary reports with a state voter history report. The missing votes did not affect the outcome of any elections.
Ind. Gov't. - "GOP lawmakers hostile to opponents of guns at schools proposal" [Updated Twice]
Hmm, here is a story on one of this morning's conference committees, reported by Dan Carden of the NWI Times, that begins:
Republican state lawmakers defending their plan to allow Hoosiers to carry guns in school parking lots were accused Monday of bullying conference committee witnesses who argued that guns at schools will make children less safe.[Updated at 1:54 PM] Here is another story, this one by Chelsea Schnieder of the Evansville Courier & Press (oddly, no paywall, right now anyway). A sample:
State Rep. Jim Lucas, R-Seymour, repeatedly challenged opponents of Senate Bill 229, at one point going so far as to pull up the resume of Zionsville's Shannon Watts, founder of Moms Demand Action for Gun Sense in America, and questioning her personal and professional affiliations with former New York City Mayor Michael Bloomberg and other political action groups.
He was joined by state Rep. Sean Eberhart, R-Shelbyville, who bizarrely yelled that his wife has the right to carry a gun, while Watts testified that women and children are more likely to be killed than a criminal if there is a gun in the home.
Later, state Rep. Alan Morrison, R-Terre Haute, joined in, laughing at the idea that the Second Amendment provides for potential restrictions on where guns can be taken.
State Sen. Jim Tomes, R-Wadesville, the conference committee chairman, did nothing to rein in his colleagues, especially Lucas, who took four turns questioning a witness -- usually only one chance is allowed -- and shushed another when she dared to ask him a question in response.
Tomes also insisted that guns already are too regulated and licensed handgun carriers never do any wrong.
While watching the two-hour spectacle, state Rep. Terri Austin, D-Anderson, tweeted: "Bullying...it doesn't just happen in schools."
Lawmakers sitting on the conference committee that will ultimately decide the final version of the legislation had, at times, heated exchanges with opponents of the bill.Here is Niki Kelly's story for the Fort Wayne Journal Gazette. (She also tweeted about it as the meeting was going on.) Some quotes:
Opponents characterized allowing guns to remain in school parking lots a major policy shift that would provide access to weapons and restrict local school boards from making policy. Supporters of the bill – namely Republican lawmakers who spoke out on the measure and a representative from the National Rifle Association – said the measure would protect the constitutional rights of a gun owner to keep a firearm locked in a car in the parking lot without running the risk of committing a felony.
As associations representing Indiana superintendents and principals testified against the measure, their representatives were repeatedly asked if they thought a licensed gun owner should face a felony charge if they left a firearm in a locked vehicle in a school parking lot.
In his first time chairing a committee hearing, Sen. Jim Tomes, R-Wadesville, said he’s had teachers and assistant principals ask him to get the bill passed so they aren’t treated “like a criminal.”
The legislation would allow licensed gun owners to keep their firearms inside a locked vehicle in a school parking lot as long as it’s out of sight.
“I know this is a concern that a lot of people have,” Tomes said. “I don’t think (in) any of these shootings occurred in our schools – as tragic as they are – that it was someone who took a gun out of a car on school property.”
Shannon Watts, a mother of five children from Zionsville, Ind., and founder of Moms Demand Action for Gun Sense in America, said the legislation would allow loaded guns near children in a place where they should feel safe. Watts recalled the Newton, Conn., shooting where 20 children and six staff members were killed in 2012 as an example of why “unregulated access to guns must be limited and not encouraged.”
“Schools do not want firearms on their properties and neither do the mothers of Indiana,” Watts said.
In one of the more tense exchanges, Rep. Sean Eberhart, R-Shelbyville, asked Watts if she felt his wife as a mother of three and former school teacher should give up her right to self protection as she goes to and from school.
“Your premise that women are somehow made safer by a gun is factually incorrect,” Watts said.
Eberhart answered Watts by asking why his wife’s rights should be precluded and that his wife, “has the constitutional right for self protection.”
A move to allow guns in school parking lots drew testy exchanges Monday between citizens opposing the bill and Republican lawmakers defending it.More from Kelly's comprehensive story:
The meeting got so heated that one Democratic legislator called it bullying.
“I think the behavior of some of the committee members was a little over the top,” said Rep. Terri Austin, D-Anderson. “They were disrespectful to those expressing concerns. Bullying doesn’t just occur in schools.”
But Rep. Jim Lucas, R-Seymour – one of the more vocal members – said he was just refuting misinformation.
“We have to make sure people have the facts,” he said. “It’s imperative that we respect the rights of the individual.”
The meeting was the first to hash out differences on Senate Bill 229. No final compromises were reached.
The legislation originally dealt with law enforcement gun-buyback programs. But the House added language that would allow Hoosiers with firearm permits to have a gun in their locked vehicle parked at a school if it is out of sight.
Under current law it is a felony to have a gun on any school property. It still would be a felony to take any firearms into the school.
Supporters contend citizens – such as teachers and parents - deserve the right to self-protection that having a gun affords going to and from school.
And Sen. Jim Tomes, R-Wadesville, kept saying the bill was about protecting “legitimate, proper citizens” – not criminals.
Rep. Linda Lawson, D-Hammond – who served as a cop for decades – took exception to the notion that no one with a carry permit can be irrational or have a problem with anger or rage.
A coalition of groups against that provision has grown in recent weeks, including a number of school organizations and children’s groups.
“Having guns on school property that are very accessible adds potential for what may occur,” said Todd Bess, executive director of the Indiana Association of School Principals.
And Stephen Dunlop, of Hoosiers Concerned About Gun Violence, said, “There are certain areas where it is simply inappropriate to bring a gun.”
He noted people aren’t allowed to bring guns to courthouses or even to the Statehouse.
It got especially heated when Zionsville mother Shannon Watts, of Moms Demand Action for Gun Sense in America, testified.
For every statistic she used, Lucas countered from a book he carried. For every statement she made on mass shootings, another lawmaker would refute.
Lucas even pointed out her maiden name and read a list of her previous jobs to note her expertise in media and marketing.
And Rep. Jud McMillin, R-Brookville, called her disingenuous for supporting background checks and other gun regulations but claiming to be a strong supporter of the Second Amendment.
A representative from the National Rifle Association spoke in support of the bill, but no private citizens did.
Environment - "Bigger hog pens create challenges for farmers"
From the March 9th Fort Wayne Journal Gazette, this AP story by M.L. Johnson.
Ind. Decisions - Supreme Court fines attorney $300 for contempt, for practicing law while suspended
From In re Patricia S. Beecher, a 2-page, 4-1 order signed by CJ Dickson:
[T]he Court entered an agreed "Published Order Suspending Respondent from the Practice of Law in Indiana for Disability" on August 8, 2013, suspending Respondent from the practice effective as of the date of the order. * * *
[The Commission filed a show cause motion] on October 28, 2013, alleging that Respondent appeared in the Merrillville Town Court on August 26, 2013, and informed the judge that she had been suspended but that her suspension did not take effect for 45 days. Based on this representation, the judge allowed Respondent to continue to represent clients in court. * * *
Through counsel, Respondent admits that she appeared in Merrillville Town Court on August 26, 2013, while suspended. She states, however, that she and her counsel had discussed filing a petition for additional time to close her practice soon after her suspension took effect on August 8, that counsel unfortunately did not file a petition until August 26 (it was actually filed on August 28—after she appeared in court), and that she was under the mistaken belief that she had been granted additional time. The Court notes that it denied Respondent's request for postponement of the effective date of her suspension by order dated September 26, 2013.
Based on Respondent's admissions, the Court finds that Respondent was in contempt of this Court when she appeared and represented clients in court on August 26, 2013, knowing she had been suspended as of August 8, yet affirmatively assuring the judge that her suspension had been postponed without any knowledge of whether a motion to postpone the effective date had even been filed (it had not), let alone whether it had been granted (it was not). * * *
Under the circumstances, the Court concludes that a fine of $300.00 is sufficient discipline for Respondent's contempt of court by practicing law while suspended. * * *
All Justices concur except Rucker, J., who would decline to find Respondent in contempt, concluding that Respondent’s action was simply a matter of miscommunication between Respondent and her attorney.
Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)
For publication opinions today (2):
In Jeff L. Ewing and Renee Ewing, Household Finance Corporation III v. U.S. Bank, N.A., as Trustee for the Structured Asset Securities Corp., Series 2005-GEL4, an 8-page opinion, Judge Bradford writes:
Appellants-Defendants-Supplemental Plaintiffs Jeff and Renee Ewing (“the Ewings”) appeal from the trial court’s denial of their motion to correct error, arguing that the trial court erred in granting Appellee-Plaintiff-Supplemental Defendant U.S. Bank’s motion for summary judgment in this foreclosure action. The Ewings claim their designated evidence, consisting only of Jeff’s affidavit outlining the Ewings’ past attempts to modify the mortgage loan at issue, establishes a genuine issue of material fact. Because Jeff’s affidavit does not dispute the alleged default or otherwise support an ascertainable defense to U.S. Bank’s foreclosure, we conclude that summary judgment was appropriate.In Brian Bradley v. State of Indiana , a 22-page, 2-1 opinion, Judge Vaikik writes:
The Ewings also appeal from the trial court’s grant of U.S. Bank’s motion to dismiss the Ewings’ supplemental complaint for failure to state a claim upon which relief could be granted. In their supplemental complaint, the Ewings alleged that U.S. Bank failed to act in good faith during the parties’ settlement discussions as allegedly required by the Indiana Alternative Dispute Resolution Rules (“the A.D.R. Rules”). Finding that the A.D.R. Rules did not govern the parties’ settlement discussions, we conclude that dismissal was appropriate. The judgment of the trial court is affirmed.
Police officers pulled over a car and arrested the driver for possession of marijuana. Officers took her to the county jail, where she revealed that she had purchased the marijuana that day from a man nicknamed Shrek—but whose name was Brian—who lived in a second-floor apartment above the antiques store in town. The officers secured a search warrant for an apartment on the second floor of the building. Upon executing the search warrant, the officers learned that the apartment belonged to a couple, who just happened to have marijuana in their apartment. The couple told police that they had purchased their marijuana earlier that day from Brian a/k/a Shrek, who actually lived on the third floor of the building. The officers then secured a search warrant for Brian Bradley’s1 third-floor apartment. Upon executing this search warrant, the officers found marijuana and other related items.NFP civil opinions today (1):
Brian now appeals his conviction for Class D felony dealing in marijuana. He challenges the first warrant that led to the search of the couple’s apartment as well as the warrant for his apartment, arguing that they lacked probable cause. Because Brian, who lived on the third floor of the building, lacked a reasonable expectation of privacy in the couple’s second-floor apartment, he cannot challenge the search or seizure of property belonging to the couple. Furthermore, although one particular piece of evidence may not have conclusively established probable cause to search Brian’s third-floor apartment, the evidence in the officer’s probable-cause affidavit, when fitted together and viewed collectively, is sufficient to support the trial court’s finding of probable cause. In addition, although the witnesses who provided probable cause changed their stories after the search warrants were issued, the law focuses on the facts known by police and presented to the judge in obtaining the search warrants, not on 20-20 hindsight. We therefore affirm the trial court. * * *
MAY, J., concurs.
RILEY, J., dissents with separate opinion. [thatbegins, at p. 17] While I agree with the majority that Brian does not have standing to challenge the validity of the initial warrant, executed in the apartment of Carroll and Hite, I respectfully dissent from the majority’s decision to affirm Brian’s conviction. Based on the totality of the circumstances, I do not find that there was sufficient probable cause to justify the issuance of the second search warrant.
NFP criminal opinions today (3):
Ind. Decisions - Transfer list for week ending March 7, 2014
[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Dec. 20, 2013 list.]
Here is the Clerk's transfer list for the week ending Friday, March 7, 2014. It is two pages (and 22 cases) long.
No transfers were granted last week.
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, March 9, 2014:
From Saturday, March 8, 2014:
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 3/10/14):
Thursday, March 13
- 9:00 AM - Mayor Gregory Ballard v. Maggie Lewis, et al. (49S00-1311-PL-716) The Marion Superior Court granted partial summary judgment to Lewis and others, finding that the City-County Council’s redistricting ordinance signed by the Mayor on January 1, 2012, does not comply with the statutory time requirement for redistricting in the second year following the federal census. The court later issued a final judgment dividing the County into 25 Council districts. The Mayor appealed, and the Supreme Court granted a motion to transfer jurisdiction over this appeal to this Court.
ILB: This is the Marion County redistricting case. See this Jan. 27th ILB post for links to most of the documents, and the maps.
- 9:45 AM - Michael E. Lyons, et al. v. Richmond Community School Corp., et al. (89S04-1312-PL-788) After their daughter choked during lunch in the school cafeteria and died, the Lyons's filed a complaint against the Richmond Community School Corporation and alleged tort and civil rights claims. The Wayne Superior Court granted the School summary judgment. The Court of Appeals affirmed in part and reversed in part. Lyons v .Richmond Cmty. Sch. Corp., 990 N.E.2d 470 (Ind. Ct. App. 2013), reh'g granted. The Supreme Court has denied the School's petition to transfer, granted the Lyons's petition to transfer, and assumed jurisdiction over the appeal.
- 10:30 AM - Paternity of I.B., K.H. v. L.B. (34A02-1305-JP-401) When a child, by next friend, petitioned to establish paternity, the Howard Circuit Court held a hearing, found that the evidence overcame the statutory presumption that the mother’s former husband was the child’s father, and ruled that another man, K.H., is the child’s father. The Court of Appeals affirmed and rejected K.H.’s argument that the evidence was insufficient because there was no DNA evidence. In re Paternity of I.B.; K.H. v. I.B., b/n/f L.B., No. 34A02-1305-JP-401 (Ind. Ct. App. Oct. 7, 2013) (NFP mem. dec.). K.H. has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: Here is the Oct. 7, 2013 NFP COA opinion.
Thursday, March 20
- 9:00 AM - Randy Knapp v. State of Indiana (28S00-1305-LW-327) Knapp was convicted of murder following a jury trial, and was sentenced by the Greene Circuit Court to life without the possibility of parole. In this direct appeal from the conviction and sentence, Knapp raises issues about the admission of evidence, certain instructions, and the sentence.
- 9:45 AM - Detona Sargent v. State of Indiana (49S02-1312-MI-790) When the State petitioned for forfeiture of Sargent’s car after her conviction for theft, the Marion Superior Court granted the State summary judgment. The Court of Appeals affirmed, holding that a sufficient nexus exists between the theft and the car and that neither an exemption statute, Indiana Code Section 34-55-10-2, nor Article 1, Section 22 of the Indiana Constitution prohibits the forfeiture. Sargent v. State, 985 N.E.2d 1108 (Ind. Ct. App. 2013), reh’g denied, vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: In an April 8th, 2013 opinion, the question involved the forfeiture of Sargent’s vehicle pursuant to Indiana Code Section 34-24-1-1(a)(1)(B). The ruling:
In sum, we hold that the State demonstrated a sufficient nexus between the underlying crime and the seized property. We also hold that neither Indiana’s statutory bankruptcy exemptions nor Article I, Section 22 of the Indiana Constitution required the trial court to exempt Sargent’s vehicle from forfeiture. Accordingly, we affirm the court’s forfeiture order.
- 10:30 AM - Matter of C.A.H. (49S02-1401-AD-30) The Marion Superior Court granted a stepmother's petition to adopt a child after service on the biological mother was made by publication. The Court of Appeals affirmed, holding that the stepmother had made a diligent search for the biological mother. Matter of C.A.H., 49A02-1302-AD-129 (Ind. Ct. App. July 23, 2013) (NFP mem. dec.), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a July 23, 2013 NFP COA opinion where the issue was "whether the trial court erred when it denied her motion because she contends that the adoption decree, which was entered without notice to her, was void for lack of personal jurisdiction and violated her due process rights." The COA affirmed.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 3/10/14):
Wednesday, March 12
- 10:00 AM - West Bend Mutual Insurance Co., and K.B. Electric, LL v. MacDougall Pierce Construction, et al (06A01-1304-CT-162) After he was injured at the site of a construction project, James Wethington, an employee of K.B. Electric, LLC, filed a lawsuit against various defendants seeking compensation for his injuries. West Bend Mutual Insurance Company and K.B. Electric, LLC appeal from the trial court’s order, which disposed of motions for summary judgment, and in which the trial court entered a declaratory judgment in favor of Amerisure Insurance Company and against West Bend Mutual Insurance Company regarding indemnification clauses and coverage under the available policies of insurance. The Scheduled Panel Members are: Judges Friedlander, Kirsch, and Bailey [Where: Court of Appeals Court Courtroom (WEBCAST)]
Monday, March 17
- 1:30 PM - Sheaff Brock Investment Advisors LLC v. David Morton (case no: none provided) Sheaff Brock appeals the trial court's entry of partial summary judgment in favor of David Morton on Morton's complaint alleging breach of contract, unpaid wages, and constructive fraud. In particular, Sheaff Brock contends that the trial court erred when it concluded that Sheaff Brock breached its contract with Morton when it changed his additional compensation structure and that Sheaff Brock violated the Wage Claims Act. Morton cross-appeals and contends that the trial court erred when it denied his motion for summary judgment on the issue of Sheaff Brock's alleged constructive fraud. Finally, Morton seeks appellate attorney's fees. The Scheduled Panel Members are: Judges Baker, Najam, and Crone. [Where: Court of Appeals Court Courtroom (WEBCAST)]
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Ind. Gov't. - Conference committee time; how they work
This is the last week of the 2014 legislative session and it is the week of conference committees. If a House or Senate does not consent to changes that were made to a bill by the second house, it may vote to dissent. In such a case, a conference committee will be appointed in an effort to resolve the differences. The Barb Berggoetz and Tony Cook story in the Sunday Indianapolis Star includes this sidebar:
Legislative leaders appoint four members to each conference committee, two from each party and chamber, to try to reach consensus over different versions of a bill. That process can be averted, though, if one chamber agrees to the changes made in the other chamber.Here is another post on conference committees, from a 2011 story by Dan Carden.
The committees meet once in public, sometimes take testimony from lobbyists. Then they recess, most often not officially meeting again. They talk among themselves and try to compromise, with the goal of having each “conferee” sign the bill. Before the conferees can sign off on the bill, though, they take the proposed compromise before their caucuses for approval.
If it’s not acceptable, they go back to negotiating. If they can’t agree, the majority legislative leaders have the power to replace lawmakers with those who will support the bill. Because Republicans control both the House and Senate, it’s the Democrats who likely would be replaced.
If the compromise language is acceptable to the caucuses, the bill goes back to each chamber in the revised form for a final vote before heading to the governor’s desk. He then has 14 days after it hits his desk to sign or veto it.
Saturday, March 08, 2014
Courts - Long same-sex marriage trial in Michigan ended Friday [Updated]
This Feb. 23rd ILB entry is headed "Federal trial begins Tuesday in Michigan same-sex marriage challenge."
Late yesterday afternoon, Steve Friess of BuzzFeed posted an update subheaded "Without the star power, location, and timing of the trial against California’s Proposition 8, the trial against Michigan’s marriage amendment has taken place under the radar. A decision in coming weeks could change all that." Some quotes:
[T]estimony in only the third courtroom trial over same-sex couples’ marriage rights in U.S. history abruptly ended with an understated flourish befitting proceedings that, for all their historic significance, nonetheless flew largely under the national radar when compared to the attention paid to similar cases in Virginia, Utah, and elsewhere.[Updated] Here is another story, this one from Erik Eckholm of the March 7th NY Times.
The two-week trial – which now awaits a written decision from [ U.S. District Court Judge Bernard Friedman] that he said wouldn’t come before March 17 – was the first such event since 2010 when a federal judge considered the constitutionality of California’s Proposition 8. The first trial took place in Hawaii in the 1990s, but the result in support of marriage equality was never realized because Hawaii voters passed a constitutional amendment allowing the legislature to ban same-sex couples from marrying.
Prop 8, like the Michigan marriage statute, was a constitutional ban on same-sex marriage imposed by voters. The federal judge struck down the ban, and last June, the Supreme Court let that decision stand in dismissing the attempted appeal by supporters of the amendment.
Activists on both sides of the issue flocked to California for the Prop 8 case, each issuing a flurry of press releases at every turn. Helmed by big-name lawyers Ted Olson and David Boies, it was the subject of lawsuits over whether testimony should be broadcast live or at least on delay and later gave rise to a play written by Oscar-winning screenwriter Dustin Lance Black and performed by an A-list Hollywood cast.
By contrast, the Michigan trial drew just a couple dozen protesters on both sides to a combined picket line outside the courthouse, often in freezing temperatures and brutal winds. The courtroom was rarely full, not even on Tuesday when attorneys for April DeBoer and Jane Rowse cross-examined controversial sociologist Mark Regnerus. Regnerus’ findings, which claim children fare worse when raised by same-sex couples than their married biological parents, have been called into question by academics and LGBT advocates but have been cited by opponents of same-sex couples’ marriage rights in several cases pending around the country. * * *
Regardless of the trial’s lower profile, it produced a litany of key moments that may impact the future of ongoing marriage litigation — including what most legal experts see as an inevitable Supreme Court case — depending on how Friedman rules. Should he strike down the ban, for instance, the withering cross-examinations undergone by Regnerus and other experts called by the state this week may be cited in briefs for cases in other states, [the plaintiffs' attorney Ken] Mogill said. * * *
Mogill was practical about whether this case would be the one heard at the Supreme Court — while pointing to advantages that the case’s posture would bring to the court.
“Having a factual record is significant as appellate courts consider these cases, certainly, and that’s something the judge was very cognizant of” when he decided not to issue a summary judgment in October, Mogill said. “We’re very happy with the state of the record in this case. We think it supports our position, and what the Supreme Court’s going to do, they’re going to do, and they’re going to do it when they do it. Whichever case gets there first is just absolutely fine.”
Friday, March 07, 2014
Ind. Decisions - Supreme Court decides one today
In In the Matter of the Termination of the Parent-Child Relationship of E.M. and El.M., E.M. v. Indiana Department of Child Services, a 24-page, 4-1 opinion, Justice Rush writes:
Decisions to terminate parental rights are among the most difficult our trial courts are called upon to make. They are also among the most fact-sensitive—so we review them with great deference to the trial courts, recognizing their superior vantage point for weighing the evidence and assessing witness credibility. Because a case that seems close on a “dry record” may have been much more clear-cut in person, we must be careful not to substitute our judgment for the trial court when reviewing the sufficiency of the evidence.
We granted transfer to reiterate that caution. Father’s eventual efforts to establish a relation-ship with his children were commendable, and DCS’s family preservation efforts with him could have been stronger. Yet the standard of review requires us to consider only the evidence favorable to the judgment—and in turn, to respect the trial court’s reasonable conclusion that Father’s efforts were both too little in view of his violence and earlier pattern of hostility toward services, and too late in view of the children’s urgent need for permanency after several years in out-of-home placement. The evidence was sufficient to support termination, so we defer to the trial court and affirm its judgment. * * *
Dickson, C.J., and David and Massa, JJ., concur.
Rucker, J., dissents with separate opinion. [which begins, at p. 16 of 24] In a carefully worded and well reasoned memorandum decision the Court of Appeals concluded there was insufficient evidence to support the trial court’s judgment terminating Father’s parental rights. In re E.M., No. 45A03-1208-JT-370 (Ind. Ct. App. May 8, 2013). It therefore reversed the judgment of the trial court. I agree with the Court of Appeals and thus respectfully dissent from the majority’s contrary view. * * *
[and at p. 24] Finally, in affirming the trial court’s judgment, the majority says: “the evidence here was close” and “the trial court could reasonably have reached either conclusion [to permit or deny the State’s petition for termination of parental rights].” Slip op. at 14. But this is not a game of horseshoes and close is not good enough. In order to terminate a parent’s parental rights the State must prove its case by clear and convincing evidence. It has failed to do so. Therefore I would reverse the trial court’s judgment.
Ind. Courts - "Same-sex couples sue Indiana governor, attorney general over gay marriage ban" [Updated Again]
Suit has been filed today in federal court, in the Southern District of Indiana, according to this brief story from the New Albany News & Tribune. A quote:
LOUISVILLE — Four same-sex couples from Southern Indiana are suing Indiana Gov. Mike Pence and Attorney General Greg Zoeller in federal court to allow them to legally marry or to have their marriages recognized.This is not the case it had been anticipated that the Indiana ACLU would file.
Louisville law firm Clay Daniel Walton & Adams announced the lawsuit today at its offices. The lawsuit was filed in Southern District of Indiana, which has a courthouse in New Albany. The couples are from Clark and Floyd counties and it's the only such federal case involving Indiana.
The law firm is representing four couples in a similar case in Kentucky. In that case, a federal judge ruled last month that the state must recognize legal marriages from other states.
[Updated at 1:58 PM] Here is the story from Chris Kenning of the Louisville Courier Journal. Some quotes:
Four gay couples are filing suit in the Southern District of Indiana to seek to force that state to recognize gay marriage.The ILB will post the complaint as soon as a copy is located.
The suit mirrors the current case in Kentucky, where a federal judge ordered the state to recognize same-sex marriages legally performed elsewhere.
Daniel J. Canon of Clay Daniel Walton & Adams of Louisville announced at a noon press conference that he is filing the suit for the couples who either want to want to get married or have their marriages recognized in Indiana.
[Updated at 2:20 PM] Here is the complaint in Love v. Pence.
Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
NFP criminal opinions today (3):
Ind. Gov't. - "Environmental groups seek probe of Duke plant: Controversial Edwardsport plant operating at 37 percent of capacity"
John Russell's story today in the Indianapolis Star reports:
A coalition of environmental and citizens’ groups called on Indiana regulators to launch a formal investigation into a growing list of problems and delays that have sharply crimped output of Duke Energy’s controversial Edwardsport power plant.
In a motion filed Thursday with the Indiana Utility Regulatory Commission, the groups say the plant has been beset by failures and outages that have cut deeply into its ability to generate electricity, even as customers continue to pay for construction and repairs on their monthly electric bills.
The plant, in southwestern Indiana, generated only 4 percent of its maximum capacity in January. From June to December, it generated an average of 37 percent of maximum capacity. * * *
In a 24-page motion, with numerous exhibits, the groups argue that Duke prematurely declared Edwardsport to be in commercial operation last summer, before it was “actually used and useful for the convenience of the public.”
Six days after the opening, the plant broke down and remained offline for nearly a month. Since then, the plant has suffered numerous problems, including leaking valves, cracked pipes and frozen machinery.
The environmental groups say that by opening the plant before it was ready, Duke could try to recover repair costs from electricity customers, despite a settlement the company reached in 2012 the set a cap of $2.595 billion, plus millions in financing costs.
Law - "Can Indiana same-sex couples marry in Illinois?"
The answer seems to be, "Yes, but ...".
As reported in this Feb. 21st ILB post, although the new Illinois statute legalizing same-sex marriage does not take effect until June 1st, in a successful class-action suit relating to Cook County a federal judge has ruled that same-sex marriage may proceed immediately in Cook County, Illinois.
A column called "Ask Gerry" in the Chicago Phoenix, written March 5th by Gerald Farinas, takes an in-depth look at whether Indiana same-sex couples may marry in Illinois. The answer is comprehensive and links to other useful information, such as a 2-page FAQ from the Cook County Clerk.
But, although the Cook County FAQ says:
If we live in a different state, can we get a marriage license in Cook County?That may not be enough. As the Phoenix column points out (in a section perhaps added later, after several Hoosiers submitted comments), Illinois statute still provides:
Yes, even if same-sex marriage is not legal in your state. Marriage licenses are issued in the county where the ceremony will occur, so you must get married in Cook County if you get your license here.
(750 ILCS 5/217) (from Ch. 40, par. 217)In other words, as "Ask Gerry" notes:
Sec. 217. Marriage by Non-residents - When Void.) No marriage shall be contracted in this state by a party residing and intending to continue to reside in another state or jurisdiction if such marriage would be void if contracted in such other state or jurisdiction and every marriage celebrated in this state in violation of this provision shall be null and void.(Source: P.A. 80-923.)
The obtaining of a marriage license, however, does not mean that the couples’ home state will acknowledge and validate it as legal. It would take legislation or a federal court order in Indiana to make that change. * * *
[E]ven within the State of Illinois, that marriage may not be legal.
Thursday, March 06, 2014
Ind. Decisions - 7th Circuit decides one Indiana case March 5th
In USA v. Carol Woodard (SD Ind., McKinney), a 16-page opinion, Judge Williams writes:
Defendant Carol Woodard, the managing director of a non‐profit organization, was indicted on one count of health care fraud for collecting $8.9 million from Medicaid based on her submissions of phony healthcare claims. As the first trial date approached, Woodard filed the first of many motions to change counsel. After the district court appointed a third attorney, it sua sponte ordered Woodard to undergo a competency examination because it felt that she might not understand the nature of the proceedings against her. After a doctor concluded that Woodard was competent to stand trial because she knew and understood the charges against her and was able to assist in her defense, the court found Woodard legally competent to stand trial. Nearly two years later, after several more delays and new attorneys, Woodard asked for a second competency evaluation, which the court denied. Woodard pled guilty and was sentenced to 80 months’ imprisonment.
On appeal, Woodard argues that the district court abused its discretion by not ordering a second competency evaluation. Because the district court reached a reasonable conclusion after it reviewed a previous psychological evaluation, considered the advice of two mental health professionals, and considered Woodard’s interactions with her attorney, we conclude that the district court did not abuse its discretion. In addition, although Woodard argues that she did not knowingly and voluntarily plead guilty during her Rule 11 colloquy, a review of the record shows that she did and that no red flags were raised that would alert the court to the contrary. Finally, we agree with her last argument that the district court violated the Ex Post Facto Clause at sentencing by sentencing her under the wrong version of the Sentencing Guidelines. Therefore, we remand this case for resentencing, but affirm the district court’s judgment in all other respects.
Ind. Decisions - Supreme Court decides one today
In Fayette County Board of Commissioners v. Howard Price, a 4-page, 4-0 opinion, Chief Justice Dickson writes:
Concluding that the decision of the Fayette County Board of Commissioners not to reappoint its County Highway Supervisor was a ministerial decision, not a quasi-judicial one, we hold that such employment decision was not subject to judicial review. * * *
The "nature, quality, and purpose" of the Board's action was not a "determination of issues" nor a "rendition of a judgment or final order regarding the parties' rights, duties, or liabilities." In the absence of these two critical factors, we find as a matter of law that the Board's em-ployment decision regarding Price was administrative and ministerial, not quasi-judicial. It is thus not subject to judicial review.
Ind. Decisions - Even more on: Supreme Court appoints special judge in Justice v. Justice case
Updating this post from Feb. 21, where it was reported that the Feb. 18th filing in the Justice case was not available for public release because of the Court's concerns regarding AR 9, the rule that governs access to court records, it now appears from the docket that new documents have been filed March 3rd:
VERIFIED RESPONSE TO TRIAL RULE 53.2 MOTION AND REQUEST TOFor background, see this Feb. 28th ILB post and its links.
REINSTATE VACATED ORDER (WITH EXHIBITS ON GREEN) (6) CERTIFICATE
OF SERVICE (6) BY MAIL 03/04/14. ENTERED ON 03/03/14 MC
Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)
For publication opinions today (2):
In In Re the Marriage of: Frank J. Ozug v. Karen S. Ozug, a 7-page opinion, Judge Kirsch writes:
Frank J. Ozug (“Husband”) appeals the trial court’s decree of dissolution (“the Decree”), claiming that it was error to award Karen S. Ozug (“Wife”) spousal maintenance despite a finding that there was no credible evidence of Wife’s medical condition and that it was error to award Wife more than 50% of the marital estate. Wife cross-appeals, arguing that Husband’s notice of appeal was not timely filed. We vacate and remand. * * *In Vinod C. Gupta v. Henry S. Busan, Heritage Federal Credit Union, an 8-page opinion, Judge Robb writes:
In the present case, Husband had the right to file a motion to correct error, and timely filed his notice of appeal after his motion was deemed denied. We conclude that his notice of appeal was timely, and we have jurisdiction over this appeal. * * *
Based on the stated inconsistencies and lack of information, we are unable to conduct a proper review of the property distribution and the grant of spousal maintenance in the present case. We, therefore, vacate the trial court’s judgment and remand for proceedings to remedy these problems and determine the issues of spousal maintenance and distribution of the marital estate.
Vinod C. Gupta appeals the trial court’s denial of his motion for summary judgment and its grant of summary judgment in favor of Henry S. Busan. He raises two issues for our review, which we restate as: whether the trial court erred in finding Gupta failed to comply with statutory notice provisions for obtaining a tax deed, and whether the trial court erred in granting summary judgment in favor of Busan. Concluding that Gupta complied with the statutory notice provisions, we reverse and remand. * * *NFP civil opinions today (3):
Under the unique facts presented in this case, where the parties and trial court did not follow the established procedures to set aside a tax deed and where the parties did not address the procedural deficiencies upon appeal, we conclude that the trial court erred in finding Gupta’s notices sent certified mail, but without return receipt requested, statutorily deficient. We further conclude that Gupta provided notice reasonably calculated to inform Busan of the tax sale and petition for the tax deed. Therefore, we reverse the trial court’s grant of summary judgment in favor of Busan and denial of summary judgment for Gupta. We remand for a grant of summary judgment quieting title for Gupta.
NFP criminal opinions today (4):
Ind. Decisions - Supreme Court posts corrected version of Judge Brown disciplinary opinion
The Supreme Court has now posted a new version of the March 4th opinion in In re Brown, marked "Corrected on March 5, 2014." However, there is no indication of what is the correction.
Here is the March 4th ILB post linking to the earlier version.
[More] The correction is in the case docket:
THE ORIGINAL PER CURIAM OPINION HANDED DOWN IN THIS CASE ON
MARCH 4, 2014, CONTAINS A NON-SUBSTANTIVE OMISSION. SPECIFICALLY
THE NAME "ELIZABETH DAULTON" SHOULD HAVE BEEN INCLUDED AS ONE OF
THE ATTORNEYS FOR THE COMMISSION ON JUDICIAL QUALIFICATIONS.
THIS INADVERTENT ERROR WAS CORRECTED BY A REVISED OPINION THAT
WAS DELIVERED TO THE CLERK WITH THIS NOTICE, AND THE CORRECTED
OPINION CONTAINS THE WORDS "CORRECTED ON MARCH 5, 2014" BENEATH
THE DATE OF THE OPINION. NO OTHER CHANGES WERE MADE TO THE
ACCORDINGLY, THE FOLLOWING SHALL OCCUR: (1) THIS NOTICE OF
CHANGE SHALL BE ENTERED ON THE CHRONOLOGICAL CASE SUMMARY; (2)
ALL COUNSEL OF RECORD SHALL BE SERVED WITH A COPY OF THE
CORRECTED OPINION AND THIS NOTICE; (3) ARRANGEMENTS SHALL BE
MADE FOR REMOVING THE ORIGINAL OPINION FROM THE COURT'S WEBSITE
AND POSTING THE CORRECTED OPINION IN ITS PLACE; AND (4) A COPY
OF THIS NOTICE SHALL BE SENT TO THOMSON/REUTERS, LEXISNEXIS, AND
KEVIN S. SMITH, CLERK/ADMINSTRATOR
Ind. Courts - "Supreme Court continues weighing future of Clark Co. Drug Court participants"
That is the headline to this long story today, reported by Charlie White in the Louisville courier Journal. Some quotes:
The drug-treatment program was suspended in mid-February by the Indiana Supreme Court following allegations of unlawful conduct by drug court staff and practices harmful to participants.ILB: See also this story from last Sunday in the News & Tribune.
It’s the first suspension of any problem-solving court in Indiana since the state began certifying them 11 years ago, according to officials with the state’s high court.
“I have full trust in the Indiana Supreme Court to evaluate any unlawful conduct by Clark County judges, and expect the investigation will be carried out thoroughly,” state Sen. Jim Smith, R-Charlestown, said.
[The 60 current program] participants are waiting on state officials to decide whether they will get to complete the program under a temporary certification.
Sarah Kidwell, outreach coordinator for the state Supreme Court, said Monday that state officials will work with the county to address outstanding issues regarding participants who agreed to enter the drug-treatment program. * * *
Eight plaintiffs in a federal class-action suit filed last month are seeking monetary damages and a court injunction. The suit includes people who allege they were arrested or were subject to arrest by drug court workers with no arrest powers, incarcerated for more than 72 hours without hearings or other due process, or face the possibility of being in violation of drug court or probation through Judge Jerry Jacobi’s court.
On Friday, Jacobi transferred all drug court cases to fellow Clark Circuit Judge Vicki Carmichael’s court, which is seeking temporary certification from the state to allow existing participants a chance to complete the program. * * *
Also on Friday, Jacobi and other Clark County officials who are listed as defendants in the federal suit were granted an extension to respond to the initial complaint. The response deadline is now April 10. * * *
While the Judicial Center evaluates the drug court, local residents can share complaints or concerns about potential wrongdoing in the Clark County court system by contacting the Judicial Qualifications Commission at (317) 232-4706 or going to www.in.gov/judiciary/jud-qual. All complaints and subsequent investigations are confidential.
Wednesday, March 05, 2014
Ind. Gov't. - Driving on a suspended license termed “a crime of poverty.”
Surprisingly, at least to the ILB, Indiana driving privileges may be suspended for numerous offenses having nothing to do with driving. Maureen Hayden of CNHI reported yesterday on HB 1279, which is currently awaiting concurrence in the House (a motion to concur in the Senate amendments failed today by a vote of 50-35).
The 127-page bill deals with a number of motor vehicle issues, including making changes to statutes dealing with driver's license suspension and revocation. Those changes are the focus of Hayden's story. A few quotes:
INDIANAPOLIS — Unpaid parking fines, falling behind on child support, drunken driving: So many offenses trigger a suspended driver’s license in Indiana that more than a half-million Hoosiers have lost their driving privileges.ILB: Hayden has a lot more information that didn't fit in the story, such as:
In fact, driving on a suspended license is the most common charged offense, prosecutors say.
A bill passed by the House and Senate hopes to keep more drivers legally on the road, supporters say, by eliminating most automatic license suspensions for non-traffic offenses and giving judges more leeway over how the penalty is used. The bill also creates a “special use” license with strict conditions such as the use of technology that monitors when certain drivers get behind the wheel.
Supporters say the law goes a long way toward helping the high number of Hoosiers with suspended licenses get back on the road legally without compromising public safety. There are about five million licensed drivers in Indiana and more than 556,000 who currently have their licenses suspended, according to the state Bureau of Motor Vehicles. * * *
David Powell, head of the Indiana Prosecuting Attorneys Council, said he’s seen many people who had few transportation options other than a car during the 20 years he spent as chief prosecutor in a rural Indiana community. People who lost a license didn’t want to lose their job so they kept driving on a suspended license, without insurance, and risked getting caught.
Powell called driving on a suspended license “a crime of poverty.”
“In my county, most of the cases I saw were people who couldn’t afford their reinstatement fees so they just kept driving and just kept getting caught and caught and caught,” he said.
That kind of decision has a spiral effect: The first time someone is caught driving with a suspended license, it’s a Class A infraction with a $150 fine. The second offense is a Class A misdemeanor with a fine up to $5,000 and up to a year in jail. A third time is Class D felony, with a jail term up to three years and a fine up to $10,000. Once more and it’s a Class C felony and up to 8 years in prison.
License reinstatement fees escalate from $100 to $300 for each offense.
The law currently allows judges to offer probationary or hardship licenses to some people who’ve had their driving privileges automatically suspended.
But the rules for granting those are prohibitively restrictive, said Chris Daniels, a lawyer with the Prosecuting Attorneys Council who helped draft the law with McMillin and Young.
“A big part of our goal is to keep the truly dangerous drivers off the road while letting people who’ve made a mistake but who can drive safely back on the road legally,” Daniels said. “Right now, we don’t have much of a mechanism in place to do that.”
Right now we have at least 8 OWI charges that carry a mandatory suspension. Most of those mandatory suspensions will go away. So will the mandatory suspensions for a lot of the non-traffic offenses. There are some administrative suspensions that 1279 is not addressing. The big one is refusing to take a chemical test when an officer has probable cause to believe you are operating while intoxicated. That mandatory suspension stays in place.It would be useful to see a chart or table setting out all the offenses which currently can lead to a suspension, along with how they would be affected by this bill.
In addition, your license will still be suspended once a judge finds PC on an OWI case, but the judge can then go back and modify the suspension. I think failure to appear in court for an infraction will also still carry an automatic license suspension. Failure to pay child support still results in a suspension.
Ind. Gov't. - Still more on "Purdue University Rejects Donor's Reference to 'God's physical laws' on Plaque Honoring Parents' Legacy" [Updated]
Updating this post from March 2nd, a settlement has been reached between the donor and Purdue University, according to a news release from Liberty Institute. Purdue University approved the following wording to appear on the plaque of alumnus Dr. Michael McCracken:
“Dr. Michael McCracken: ‘To all those who seek to better the world through the understanding of God's physical laws and innovation of practical solutions.’ Dr. Michael and Mrs. Cindy McCracken present this plaque in honor of Dr. William ‘Ed’ and Glenda McCracken and all those similarly inspired to make the world a better place.”The phrase "God's physical laws," which was the basis for the earlier rejection, remains.
Dr. McCracken's accompanying statement concludes:
“We are also especially grateful to the Liberty Institute and Covington & Burling LLP for providing their time and resources to help us resolve this issue. Without people serving as they have, most would not have the resources to have their voices heard.”The amount of the gift to Purdue was $12,500. It is unclear from the release re whether Covington & Burling's services were donated.
[Updated on March 6th] The Lafayette Journal Courier has a story this morning by Hayleigh Colombo that begins:
Purdue University has decided after all to allow a donor to reference “God’s physical laws” on a plaque recognizing the alumnus’ donation to the university.
The West Lafayette research university will avoid a First Amendment fight between itself and a donor, engineering graduate Michael McCracken, who alleged that Purdue was violating his rights by not allowing him to reference God on a plaque commemorating his parents. The plaque, in a renamed conference room in Herrick Laboratories, was offered to him after McCracken made a $12,500 donation to the university in 2012.
The argument came to a head last week when Purdue’s legal counsel, Steve Schultz, said Purdue’s status as a public institution opened the door to a costly and lengthy legal battle if Purdue accepted McCracken’s proposed language for the plaque, which referenced “God’s physical laws.”
McCracken and his lawyers argued that the speech would be considered “private speech” and would not put the university in danger.
Ind. Gov't. - An overview of the brouhaha caused by the deletion of a single provision in HB 1380
The Indiana Adjusted Gross Income Tax Act of 1963 is set out at Indiana Code Title 6, Article 3. The first Chapter, IC 6-3-1, contains the definitions that apply throughout the Article.
The definition of adjusted gross income in Sec. 3.5 explains that Indiana's adjusted gross income tax is tied to "adjusted gross income" (as defined in Section 62 of the Internal Revenue Code).
Sec. 11(a) of the definitions explains that:
The term "Internal Revenue Code" means the Internal Revenue Code of 1986 of the United States as amended and in effect on January 1, 2013.A glance at the History Line at the end of Sec. 11 shows that the section has been amended nearly every year the General Assembly has been in session since it was enacted in 1963. The reason why was explained in this April 11, 2007 ILB post:
This section defines what the Indiana Code means when it references the federal "Internal Revenue Code." The federal law changes nearly every year.This year, language to update the references in IC 6-3-1-11 to "Jan. 1, 2014" was included as SECTION 8 in HB 1380, a bill covering a miscellany of tax and administrative issues, as can be gleaned from the digest to the Feb. 28th version of the bill. You can find mention of SECTION 8's content about a third of the way down p. 2 of the digest: "Updates references to the Internal Revenue Code."
Does a reference in Indiana law to the "Internal Revenue Code" incorporate all the latest changes made by Congress? Yes, but only because the Indiana law is changed each year to reflect the most recent version of the IRC.
What is that? Because the General Assembly cannot delegate its lawmaking authority to the federal government.
On Monday, March 3, when the House bill was on second reading in the Senate, Senator Brandt Hershman, the bill's sponsor, successfully offered a motion to delete SECTION 8. It read: "Page 7, delete lines 12 through 42. Page 8, delete lines 1 through 34." Period. He added no new language to the bill.
As related in this ILB post yesterday, the ILB first learned about this motion striking SECTION 8 the next morning, through a brief, confusing and inaccurate news story that did not identify the bill and was headed "Indiana measure would ban same-sex marriage tax benefits."
Senator Hershman contacted the ILB several times during the day yesterday, helping me to understand his intent, including this statement:
We couple our tax code selectively to the federal IRC. If we did a blanket coupling, it would potentially require recognition and joint filing under state law.Indiana adjusted gross income (AGI) is derived from the AGI figure on your federal tax form. You copy that number, if you are married, from your joint tax form onto your Indiana tax form.
We aren’t doing anything to the federal ability to file jointly, we’re just not creating a state right to do so through coupling to the federal code.
The U.S. Department of the Treasury and the Internal Revenue Service (IRS) today ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage.So for the purposes of their federal tax return, Indiana same-sex couples, legally married in another state, will be treated as married for federal tax purposes.
The ruling implements federal tax aspects of the June 26th Supreme Court decision invalidating a key provision of the 1996 Defense of Marriage Act.
What of the Indiana tax returns of Indiana same-sex couples legally married in another state? The Indiana Department of Revenue issued guidance this fall, providing that because Indiana does not recognize same-sex marriages, same-sex couples who file federal returns with a married filing status must each file their Indiana income tax returns with a filing status of single. To accomplish this, each same-sex spouse needs to fill out a "sample" federal form as if single, and apply the AGI derived to an individual Indiana tax return.
Senator Hershman's concern, as set out in this story this morning in the Indianapolis Star, reported by Barb Berggoetz, was:
... that [IDOR] opinion takes precedent, unless the legislature changes the law. However, he said if lawmakers don’t “decouple” state tax policy in HB 1380 from the broad federal tax changes, then the practice of joint filing for same-sex couples would be adopted here.Some, including myself, would differ with Sen. Hershman's answer, but the Senate on second reading accepted it.
Since Indiana has an existing state law banning same-sex marriage, Hershman said, “we don’t want to do that because a tax bill is not the appropriate venue for a debate on same-sex marriage.”
A different approach: IC 6-3-1-11 governs what version of the Internal Revenue Code (a federal statute) is referenced in the Indiana adjusted gross income tax law. Currently it is the IRC as amended and in effect Jan. 1, 2013. Sen. Hershman's concerns seems to be that by upping that reference to Jan. 1, 2014, we would also be adopting DOR Revenue Ruling 2013-17. I do not believe that to be the case, but it would have been easy enough to add another exception to IC 6-3-1-11, rather than leaving the entire adjusted gross income tax law tied to the Jan. 1, 2013 version for another year. (There also appear to be several errors in the 2013 version of IC 6-3-1-11 that need to be corrected.)
Finally, yesterday the Senate voted on HB 1380 on final passage. SECTION 8 had been excised the day before. The bill contained a laundry list of tax and administrative provisions. The vote on third reading, which was 41-6, had nothing to do with which version of the IRC is referenced in state tax law. But many in the press continued to make that absent provision of HB 1380 the story. For example, where is this provision in HB 1380?
Separately, the legislation would put a previously announced Indiana Department of Revenue rule into state law by requiring gay Hoosiers who are married in other states to file their Indiana income tax returns as individuals. While federal law permits joint returns for married gay and lesbian couples, Indiana still prohibits gay marriage and state lawmakers said the state tax code should reflect that prohibition. NWI TimesBarb Berggoetz's story today in the Indianapolis Star gives a clearer picture, although I disagree with the lede:
On the heels of recent demonstrations emotions were running high after an amendment was passed Monday spelling out that same sex couples in Indiana would not be able to file their state taxes jointly, even though they can now file federal taxes jointly. WISH-TV
The Indiana Senate on Tuesday deleted a state tax provision that would have inadvertently allowed same-sex couples to file joint tax returns in Indiana.Summer Ballentine's story for the AP takes a different approach, looking at the impact of Indiana's not allowing legally married same-sex couples to file as married on their Indiana tax returns.
Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (1):
Ind. Decisions - More on: Marion County Superior Court Judge Kimberly Brown removed by the Supreme Court
The Indiana Supreme Court on Tuesday ousted Marion Superior Court Judge Kimberly Brown, only the third Indiana judge to be permanently removed from the bench for misconduct in the past 20 years.
“We conclude that protecting the integrity of the judicial system and ensuring the fair and timely administration of justice require that (Brown) be removed from office,” the Supreme Court said in an order. “This removal renders (Brown) ineligible for judicial office.”
Brown is the first Indiana judge to be permanently removed since 2004.
The disciplinary decision in Brown’s case cannot be appealed, and the court did not place any time limits on Brown’s ineligibility to serve as a judge. That means she is, effectively, permanently barred from holding judicial office.
The court did not suspend Brown’s law license, and she will be able to work as an attorney. * * *
Brown has been on a paid suspension since Jan. 9 and has filed to run in the Democratic primary in May for the party’s nomination to seek re-election. The party has slated another candidate for her post. Whether Brown’s name would remain on the primary ballot was unclear Tuesday. * * *
All five Supreme Court justices concurred with the decision to bar Brown from judicial office, but Justice Robert Rucker argued in a separate opinion that the court’s goal of preserving the integrity of the judicial system could be achieved by suspending Brown for 60 days without pay, then staying her removal for one year, during which she would be on supervised probation. He noted the charges against Brown did not involve “acts of moral depravity,” and neither the court nor the commission found that she had engaged in “willful misconduct in office.”
During the probationary period, Rucker wrote, “(Brown) would carry the burden of demonstrating that she has the capacity to manage her court efficiently and effectively. A failure to do so would result in a probation violation and immediate removal from office.”
The Supreme Court order noted Brown was not a novice judge and that her misconduct occurred as part of her official duties.
“It violated multiple Rules of Judicial Conduct, and much of it prejudiced the administration of justice. It was not singular, isolated, or limited to a particular subset of cases or persons. It was often repeated or continuing in nature.
“This misconduct not only displayed a lack of dignity, courtesy and patience required of judges, but it also negatively affected parties, court staff and others interested in the efficient operation of the criminal justice system,” the order said. * * *
The Supreme Court order noted that Brown’s “pattern of neglect, hostility, retaliation and recalcitrance toward investigating officials indicates an unwillingness or inability on her part to remedy deficiencies.”
Tuesday, March 04, 2014
Ind. Gov't. - Still more on: So who pledged "campaign cash to protect House members who were considering voting against a constitutional gay marriage ban"?
INDIANAPOLIS — Former Indiana Republican Chairman Jim Kittle says his involvement in the state's gay marriage battle has been misstated.
Kittle said Tuesday that he never offered "unlimited" campaign funds to Republican House Speaker Brian Bosma. * * *
Bosma said in January that he had rejected an offer of "unlimited" funds to make the ban "go away." He said then he was concerned it might violate state and federal law. But last week he said that he didn't think any crime was committed.
Ind. Gov't. - "Indiana measure would ban same-sex marriage tax benefits " says AP story
A wrap-up. This AP story from this morning is confused and at some points completely in error. Sen. Brandt Hershman made a second reading amendment yesterday to HB 1380 that was intended to disallow Indiana same-sex couples legally married in another state from filing as a married couple on their Indiana returns.
In this post I started this morning and updated a number of times, I make two points:
- Indiana same-sex couples legally married in another state are already prevented from filing as a married couple on their Indiana returns, meaning a change was not necessary to achieve this result.
- The change made, eliminating the annual update to the definition of the Internal Revenue Code, simply means that all references in the Indiana Code to the Internal Revenue Code will remain "the IRC as amended and in effect on January 1, 2013." This may have ramifications beyond those intended, in other areas.
Ind. Gov't. - More on: So who pledged "campaign cash to protect House members who were considering voting against a constitutional gay marriage ban"?
Ind. Decisions - Marion County Superior Court Judge Kimberly Brown removed by the Supreme Court
In The Honorable Kimberly J. Brown, Judge of the Marion Superior Court, a 22-page opinion, including a separate 5-page opinion by Justice Rucker concurring in part, the Court writes:
This matter comes before the Court as a judicial disciplinary action initiated by the Indiana Commission on Judicial Qualifications (“Commission”) against Kimberly J. Brown (“Respondent”), Judge of the Marion Superior Court. Article 7, Section 4 of the Indiana Constitution and Indiana Admission and Discipline Rule 25 give the Indiana Supreme Court original jurisdiction over this matter. After considering the evidence, the report of the Special Masters appointed in this matter, and the parties’ arguments, we conclude that the Commission has demonstrated, by clear and convincing evidence, that the Respondent engaged in significant judicial misconduct, and we conclude that the misconduct warrants her removal from office. * * *Here is a preliminary story posted by Tim Evans of the Indianapolis Star.
We conclude that protecting the integrity of the judicial system and ensuring the fair and timely administration of justice require that the Respondent be removed from office. Therefore, the Court hereby removes the Respondent from the office of Judge of the Marion Superior Court, effective immediately. This removal renders the Respondent ineligible for judicial office. See Admis. Disc. R. 25(III)(C). Although a judicial officer removed from office under such an order of discipline, “pending further order the Supreme Court, shall be suspended from the practice of law in the State of Indiana[,]” id., the Court hereby orders that the Respondent shall not be suspended or barred from practicing law in Indiana as a result of this removal from office. The Masters appointed in this case are discharged, and we thank them for their conscientious service in this matter.
Dickson, C.J., and David, Massa, and Rush, JJ., concur.
Rucker, J., concurs in part with separate opinion. [that begins, at p. 18] Three very experienced and highly-respected trial court judges serving as Masters in this case have recommended that the Respondent be removed from office. The majority has accepted the Masters’ recommendation and today orders Respondent’s immediate removal. For reasons the majority expresses I agree that Respondent should be removed from the bench. However, I disagree the removal should be ordered effective immediately.
Ind. Decisions - "Indiana shoreline jurisdiction dispute turns into 2-year legal battle"
Recall this ILB post (and the earlier linked entries) from Jan. 1st, headed "Court rules against Long Beach lakefront property owners" concerning a dispute between Lake Michigan beachfront property owners near Michigan City and the Town of Long Beach, over ownership of the "space between the water's edge and the ordinary high watermark (OHWM)."
It seems the same dispute has been going on further west along the Lake Michigan shoreline, in the Town of Dune Acres, which is on Lake Michigan just to the west of what natives of the area refer to as "Johnson's Beach" or "Porter Beach" and the Indiana Dunes National Lakeshore, which, as this story today in the Chicago Tribune, by Jennifer Delgado, reports:
Along Lake Michigan's southern shore, the Indiana Dunes National Lakeshore's 15,000 acres surrounds a checkerboard of small beach communities.You'll need to read the whole story to totally understand the dispute that resulted in a bench trial in federal court, but this section relative to the OHWM gives an idea:
But the borders that divide the towns and park don't mean much when it comes to the beach. Conflicting regulations exist on water scooters, beach fires and dogs without leashes, among other policies.
The National Lakeshore contended that the water scooter had been used within 300 feet of the shoreline, a violation of its rules. The rangers also said [Rob] Carstens had used the ATV below the ordinary high water mark, an area that falls within the park's boundaries. And signs aren't required for every park rule, they added.
The Indiana Department of Natural Resources said it does not prohibit water scooters on Lake Michigan. If another agency issues a ticket, it would be up to a court to decide what entity has ultimate jurisdiction, a spokesman said.
The town has been around since 1923, long before Congress established the national park in 1966. It wasn't until years later that the park boundaries expanded beyond the land to include 300 feet into Lake Michigan.
The ordinary high water mark, an elevation line drawn by scientists, determines the edge of the lake where the federal agency begins governing. The water line has been below average for at least 10 years, according to the National Lakeshore, meaning Carstens could be standing on the beach in federal jurisdiction. * * *
After a one-day bench trial last July, a judge on Jan. 31 convicted Carstens. Lou Mellen, president of the Dune Acres Town Council, argued that the national park does not maintain the town's beach and the ruling sets a bad precedent.
"They're threatening to change the way we use the beach and treat us as if we're just visitors when in fact we live here. We consider this our beach," said Mellen, who noted that the national park does not own the Dune Acres beach.
About 9 miles east, the Beverly Shores beaches have the same rules as the National Lakeshore with a few exceptions.
"Occasionally" the town has a minor jurisdiction issue with the park service, like when a ranger spots a dog without a leash on the beach, said Geof Benson, the Town Council president. The two have different rules on the issue, he said. "But mostly it's been settled with a phone call or discussion, not a court," he said of differences.
Ind. Gov't. -"State police open probe on Elwood mayor's campaign funds"
Ken de la Bastide and Zach Osowski reported in The Anderson Herald Bulletin March 2nd in a lengthy story that began:
ELWOOD – The Indiana State Police and FBI are investigating campaign finance expenditures by Elwood Mayor Ron Arnold for 2012 and 2013, according to local officials.
In particular, Arnold spent campaign money for out-of-state travel and personal bills, which could be seen as a violation of state election laws. A Herald Bulletin review of Arnold’s campaign finance records found that he spent $7,264 for Verizon wireless service and $3,939 for Comcast cable service.
The investigation is being conducted by the ISP Organized Crime and Corruption Unit. * * *
Madison County Prosecutor Rodney Cummings said Monday the ISP approached him before the investigation began. State police received complaints about alleged irregularities in Arnold’s campaign finance report, Cummings said.
Initially, Cummings turned down a request for a subpoena by ISP for Arnold’s campaign bank records. But after being informed that the campaign paid for a hotel room in California and cable bills, Cummings approved the subpoena of the campaign committee’s bank records.
“There are several possible statute violations,” Cummings said. “You can’t use campaign funds for your own personal use.”
Ind. Law - Stephen J. Johnson, longtime executive director of the Indiana Prosecuting Attorneys Council, dies
It is with heavy hearts that we inform you of the death of former Executive Director, Stephen J. Johnson. Steve died unexpectedly at home on Sunday, March 2, 2014. We will miss him more than words can express.Here is the obituary.
Thursday, March 6, 2014, 4:00 pm - 8:00 pm
G.H. Hermann Madison Avenue Funeral Home
5141 Madison Avenue, Indianapolis
Friday, March 7, 2014, 10:00 am - 11:00 am
Resurrection Lutheran Church
445 E. Stop 11 Road, Indianapolis
Friday, March 7, 2014, 11:00 am
Resurrection Lutheran Church
445 E. Stop 11 Road, Indianapolis
Friday, March 7, 2014
Maple Hill Cemetery
709 Harding Street, Plainfield
Courts - "Outside lawyer to appeal Kentucky gay-marriage ruling after attorney general refuses"
Gov. Steve Beshear announced Tuesday morning that the state will hire outside counsel to appeal a judicial ruling that the state must recognize same-sex marriages legally performed outside the state.
The announcement followed state Attorney General Jack Conway’s emotional announcement that he would not appeal U.S. District Judge John G. Heyburn II’s ruling and would not pursue any more stays.
Courts - More on "Kentucky Attorney General Conway faces unenviable situation"
Updating this ILB post from March 3rd, the AP is reporting that Kentucky's attorney general will not appeal Bourke v. Beshear, the federal district court opinion requiring Kentucky to give recognition to same sex marriages performed in other states.
Here is the preliminary story from Tom Loftus of the Louisville Courier Journal.
Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)
For publication opinions today (1):
In Commonwealth Land Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, et al, a 33-page opinion, Judge Crone writes:
The Indiana Department of Insurance (“IDOI”) conducted a targeted market examination of Commonwealth Land Title Insurance Company (“Commonwealth”) to determine if it was in compliance with the Indiana Insurance Code. Following the examination, the IDOI issued an order (“the Administrative Order”), concluding that Commonwealth violated Indiana Code Sections 27-4-1-4(a)(7)(C)(i) (“the Rate Statute”), 27-1-3-4 (“the Unsafe Business Practices Statute”), and 27-1-18-2 (“the Gross Premium Tax Statute”), and ordered Commonwealth to take certain actions to cure its violations pursuant to Indiana Code Section 27-1-3.1-11 (“the Cure Statute”). Commonwealth petitioned for judicial review, and the trial court upheld the Administrative Order with one exception.NFP civil opinions today (0):
Commonwealth appeals the trial court’s order, arguing that the IDOI’s determinations that it violated the aforementioned statutes are unsupported by substantial evidence and that the cures the IDOI ordered are not authorized by the Cure Statute. We conclude that Commonwealth fails to carry its burden to show that the IDOI’s determinations are unsupported by substantial evidence and that the cures are not authorized by the Cure Statute. Accordingly, we affirm the trial court’s order. * * *
We conclude that substantial evidence supports the IDOI’s determination that Commonwealth violated the Rate Statute, the Unsafe Business Practices Statute, and the Gross Premium Tax Statute. We further conclude that the cures imposed by the IDOI for Commonwealth’s violations of these statutes are authorized by the Cure Statute. Therefore, we affirm the trial court’s order.
NFP criminal opinions today (3):
Ind. Gov't. - Story reports "Indiana measure would ban same-sex marriage tax benefits" [Updated a 4th Times!]
This morning the Indianapolis Star posted a confusing, unsigned AP story with that headline. It reports:
Indiana would break from an Internal Revenue Service policy recognizing same-sex marriage for tax purposes if a late-session change becomes law.The story does not give the bill number. The ILB has tried to locate a bill with this amendment, but has been unsuccessful so cannot comment either on how the language would impact current Indiana policy, or when the "change" would take effect.
The Senate on Monday approved adding the language to another tax bill. The measure is up for a final vote in the chamber Tuesday [that would be today].
The IRS last year announced all same-sex marriages would be recognized in federal tax returns. The ruling applies regardless of whether the couple lives in an area where their marriage is recognized.
If passed into law, the Indiana bill would split from the IRS and not grant same-sex couples the same tax breaks other couples now receive.
Republican Sen. Brandt Hershman of Buck Creek says blocking the benefits would match Indiana tax policy with the state ban on same-sex marriage.
On Nov. 23, 2013 the Indiana Department of Revenue issued a document headed "Same-sex Marriage Tax Filing Guidance." Jon Murray, then of the Indianapolis Star, reported on it the same day in this story. From the story:
The U.S. Supreme Court in June ruled that the federal government must recognize legally performed same-sex marriages. Under a resulting policy announced Aug. 29 by the Internal Revenue Service, legally married gay couples will be able to file a joint federal tax return for the first time next year — no matter where they currently live.Thus, same sex Indiana couples, legally married in another state, may file a joint federal return, but for purposes of the Indiana tax, must file as unmarried.How Hershman's amendment would change this, if at all, is not clear without being able to review its language.
That creates a challenge in Indiana, which is among 24 states that have gay-marriage bans and also use state income-tax forms that rely on the federal tax return form as the basis for income calculations.
The state's new guidance, issued on the Department of Revenue's website this afternoon, advises couples who file federal returns with a married filing status to also fill out sample federal single-filer forms. To do so, they must divide their joint income.
They then can refer to those sample federal returns when they fill out Indiana's tax return for single-filers. The website offers some advice for dividing up income and specifies which lines on the federal form affect the state return.
[Updated at 10:45 AM and again at noon] Thanks to Sen. Hershman, who has sent the ILB the bill number, HB 1380 and identified the motion as Amendment 5.
However, this confuses the ILB, as amendment 5 strikes from the bill the entire SECTION 8 (of the Feb. 28 printing, at pp. 7-8), containing the annual update to IC 6-3-1-11, to define the term "Internal Revenue Code" as that in effect as of the current year.
Perhaps (likely) the amendment to IC 6-3-1-11 will appear in another bill. It is unclear to the ILB, however, how any change to Indiana tax law could prevent Indiana same-sex couples legally married in another state from filing their federal return jointly as married couples under federal law.
The State of Indiana currently does not recognize the marriage and does not permit joint filing of Indiana tax returns, as indicated earlier in this post. But as we've seen this week with Kentucky, which has been required by a federal court decision to recognize same-sex marriages performed in other states, that could change with litigation.
[More at 1:55 PM] The ILB has located the LSA fiscal note for the version of HB 1380 as it existed before the second reading Senate amendments. Here is the applicable analysis, from p. 3, of SECTION 8's changes to IC 6-3-1-11:
Internal Revenue Code: The bill updates the reference to the Internal Revenue Code (IRC) as amended and in effect on January 1, 2014. The current reference to the IRC pertains to all IRC provisions amended and in effect on January 1, 2013. There were no significant updates to the IRC enacted by Congress during 2013.Senator Hershman's 2nd reading amendment removed SECTION 8 from HB 1380 entirely. What connection any of this has to do with Indiana "breaking from an Internal Revenue Service policy recognizing same-sex marriage for tax purposes" continues to elude me.
However, some federal provisions were allowed to expire on December 31, 2013, that Indiana requires to be added back to federal adjusted gross income. Those add-backs will no longer be necessary and should not have a significant fiscal impact. (It is possible that these federal provisions could be retroactively reinstated during 2014.) The expiring provisions with an Indiana add-back are:
• Discharge of indebtedness on a principal residence.
• Increase in section 179 expensing to $500,000/$2,000,000 and expansion of the definition of section 179 property.
• Special expensing rules for certain film and television productions.
[Updated at 3:05 PM] Senator Hershman has sent the ILB this response:
We couple our tax code selectively to the federal IRC. If we did a blanket coupling, it would potentially require recognition and joint filing under state law.ILB: Repealing SECTION 8 will simply leave IC 6-3-1-11 (starts at bottom of p. 16) as it currently exists.
We aren’t doing anything to the federal ability to file jointly, we’re just not creating a state right to do so through coupling to the federal code.
Hope this helps.
Ind. Gov't. - "State, LaPorte Co. sue former worker for missing funds"
Stan Maddux reports today in the NWI Times in a story that begins:
LAPORTE | Indiana Attorney General Greg Zoeller on Monday personally filed a lawsuit in LaPorte Circuit Court aimed at recovering nearly $200,000 in public funds allegedly embezzled by a now former chief deputy LaPorte County auditor.ILB: Here is a July 16, 2011 ILB post, where a story quoted from the Goshen News began:
He said lawsuits by his office are common in cases involving theft of tax dollars.
However, the legal action taken against former chief deputy auditor Mary Ray asks for triple of the amount she allegedly took because she was in a position of trust and evidence suggests the money went for gambling and, perhaps, other personal use, according to court documents.
"It's meant to show the public that we're going to take these things seriously. We're not going to look the other way," said Zoeller.
LaGrange County Clerk Beverly Elliott is facing four Class D felony counts of official misconduct. She is also being asked to return close to $10,000 in county money and pay more than $8,000 in costs incurred during an audit by the Indiana State Board of Accounts.
In addition, State Attorney General Greg Zoeller announced Tuesday afternoon he has filed a lawsuit against Elliott seeking triple the amount in damages — $55,160. He is also seeking an injunction freezing all of her assets.
Monday, March 03, 2014
Ind. Courts - Hoosier and 7th Circuit Judge John Tinder retiring in 2015
Above the Law has the scoop (congratulations!), alerted by a letter sent by Judge Tinder to a clerkship applicant, telling him or her that he had "recently decided that I will be leaving the court in 2015."
David Lat of ATL spoke with Judge Tinder this afternoon by phone and writes:
Judge Tinder plans to continue hearing cases through February 2015, which is when he’ll turn 65 and become eligible for retirement pursuant to the so-called “Rule of 80.” Under this policy, a federal judge who’s at least 65 years old and has at least 15 years of active service as an Article III judge can leave active status and still receive full pay, whether as a completely retired judge or a judge on senior status (a semi-retirement typically involving a somewhat reduced caseload). Judge Tinder, who has served as an Article III judge for a total of more than 25 years — first on the District Court for the Southern District of Indiana, then on the Seventh Circuit — easily satisfies the rule’s requirements.(h/t AppellateDaily)
So around February 2015, Judge Tinder will stop picking up new appeals and turn to finishing up work on his still-pending opinions. He hopes to retire completely from the Seventh Circuit sometime in the spring of 2015. He does not plan to take senior status; rather, he will step down from the bench completely. What does he plan to do after departing from the court?
“I’ve got some hazy concepts in my mind, but no definite project,” he said. “I’ve been a judge since 1987 and U.S. Attorney prior to that, so it has been a while since I’ve been in the private sector. I don’t aspire to build a clientele or start a practice at this point in my career, but I can think of things I’d enjoy doing in public interest, advocacy, or arbitration. But I don’t have a particular target, just some vague notions that I will explore closer to the time.”
Serving as a federal appellate judge is many a lawyer’s dream job. Why would Judge Tinder want to step down from the bench?
“We have a wonderful court, full of really smart and collegial people, tackling the most interesting issues,” he said. “It will be hard to leave. But I just got to a point where I thought about whether I’d like to target what Bill Bauer [Judge William Bauer] is doing at 88, handling a full caseload, and I thought I’d like to try something different. It has been fascinating to serve on this court and on the district court before that.”
Thank you, Judge Tinder, for your many years of judicial service, and best of luck in your next endeavor, whatever it might be!
ILB: This is NEWS. As most know, Judge Tinder hails from Indianapolis.
Courts - "What Does the SCOTUS Really Think About the Right to Counsel?"
The subtitle to this Feb. 27th Atlantic article by Andrew Cohen is "The chief justice pens a paean to criminal defense attorneys, never mentioning the national crisis the Court has helped perpetuate."
A number of readers have sent notes referring the ILB to this article.
Ind. Gov't - What is a "timely" period for a response under the Public Records Act? More than five months?
On Feb. 28th the Public Access Counselor issued a 3-page opinion re Formal Complaint 14-FC-15; Alleged Violation of the Access to Public Records Act by the Indiana Department of Education.
The complaint to the PAC was dated a month earlier, Jan. 29th, and said that although a request had been submitted to the DOE on August 8, 2013:
The Department acknowledged receipt of your request; however, as of the date of your formal complaint they had not produced any documentation responsive to your request. The Department responded to your complaint on February 12, 2014 stating they were still in the process of satisfying numerous other requests received and had not processed your request.More from the opinion:
Your request is presumably pursuant to a debate sparked in August 2013 regarding the Department’s A-F school accountability grading system administered by the previous Indiana Superintendent of Public Instruction Tony Bennett. Most of the materials you are seeking appear to be related to that particular situation. The alleged controversy was widely covered in local and national press. Consequently, I am aware the Department’s incoming administration has received abundant requests for information very similar to your request.ILB: Here are some ILB observations, in no particular order:
I point this out because the Department’s claim they have received “numerous requests for information and we process the requests in the order we receive them” is likely under these circumstances. And while you are entitled to the records you seek (notwithstanding any confidential or deliberative material) it is to be expected the Department would be the recipient of a large number of public records request related to this controversy. * * *
Reasonableness is a subjective standard which changes on a case-by-case basis. To conclude the Department has not yet caught up with the numerous requests for information would not be beyond reason. Moreover, the APRA is not intended to interfere with the regular discharge of the functions or duties of the public agency or public employees. See Ind. Code § 5-14-3-7(a). It is my understanding the Department has only a limited number of staff members assigned to address public records requests. Considering the amount of attention this matter has generated, your request may still be waiting in queue.
You are likewise correct stating an agency should produce portions of a response as they become available in situations where the request is large. This has been my standing opinion as well as former Public Access Counselors. As your response is being processed, I encourage the Department to release the disclosable information in a piecemeal manner. However, as they have not begun to work on your request, this is not practical at this time.
Five months is certainly a long time to wait for records production. In normal circumstances, even for a request as large as yours, I would find a violation if the agency had not produced any records responsive to the request. Given the unprecedented amount of attention and public records requests received by the Department in light of Augusts’ news cycle, I do not find it unreasonable the Department has taken this amount of time to even commence investigation into the response to your request.
- Five months is indeed a long time to wait. And the Department still has not yet begun to fill the request.
- Although the opinion does not identify the entity making the request, the address on the opinion is 555 New Jersey Avenue NW, Washington, D.C. 20001. That is the address of the American Federation of Teachers. The out-of-state location make this appear to be a harder case, but one assumes the answers would have been the same for an Indiana inquirer.
- As the public access counselor notes in the opinion:
[Y]ou submitted to the Department a request for considerable amount of communication from January 2009 to the date of your request. In the first part of your request, you listed over 15 named separate senders of communication (as well as the catch-all “other immediate staff of the Office of the Superintendent”) and approximately 80-named recipients as well as an indefinite number of unnamed “group” recipients such as the Foundation for Excellence in Education and the Foundations for Florida’s Future. You also included 23 key phrases to narrow the search. Additionally, you requested a copy of all proposals, schedules and attachments received by the Department’s Office of School Improvement and Turnaround.
- Fulfilling this public records request presumably would exceed many times over the two-hour limit after which the agency may charge a fee under the changes proposed by the pending HB 1306.
- It appears that a number of the requests the Department has received relate to the same debate. From the opinion:
I am aware the Department’s incoming administration has received abundant requests for information very similar to your request.
- Would the Department be under any obligation under HB 1306, if it became law, not to charge $20 per hour for producing the same information over and over? And if so, does that mean that the first inquirer would bear the brunt of the costs?
- IC 5-14-3-7(a), cited above to support the PAC statement that the public records law "is not intended to interfere with the regular discharge of the functions or duties of the public agency or public employees," actually reads: "A public agency shall protect public records from loss, alteration, mutilation, or destruction, and regulate any material interference with the regular discharge of the functions or duties of the public agency or public employees."
- Doesn't "the regular discharge of the functions or duties of the public agency" include serving the public - making its public records accessible to the public? When did this duty begin to fall outside the definition?
Ind. Decisions - Fourteen New Cases Added to the Indiana Supreme Court’s Oral Argument Calendar
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
Updating this post from November 27, in the past month the Indiana Supreme Court has added the following fourteen cases to its oral argument calendar.
|THU, APR 24, 2014 at 9:45 AM||Robert Corbin v. State of Indiana||FP||Granted|
|THU, APR 24, 2014 at 9:00 AM||Curtis Sample v. State of Indiana||NFP||Granted|
|THU, APR 10, 2014 at 10:30 AM||Nick McIlquham v. State of Indiana||FP||Granted|
|THU, APR 3, 2014 at 9:45 AM||Phillip J. Griffin v. State of Indiana||FP||Granted|
|THU, APR 3, 2014 at 9:00 AM||Keion Gaddie v. State of Indiana||FP||Granted|
|THU, MAR 20, 2014 at 10:30 AM||Matter of C.H.; J.E. v. L.H.||NFP*||Granted|
|THU, MAR 20, 2014 at 9:45 AM||Detona Sargent v. State of Indiana (civil)||FP||Granted|
|THU, MAR 20, 2014 at 9:00 AM||Randy L. Knapp v. State of Indiana||Direct appeal||(LWOP)|
|THU, MAR 13, 2014 at 10:30 AM||Paternity of I.B., K.H. v. L.B.||NFP*||Pending|
|THU, MAR 13, 2014 at 9:45 AM||Michael E. Lyons, et al. v. Richmond Community School Corporation, et al.||FP||Granted|
|THU, MAR 13, 2014 at 9:00 AM||Mayor Gregory Ballard v. Maggie Lewis, et al.||Direct appeal||56(A)|
|THU, FEB 13, 2014 at 10:30 AM||Kenyatta Erkins and Ugbe Ojile v. State of Indiana||FP||Granted|
|THU, FEB 13, 2014 at 9:45 AM||Christopher Cross v. State of Indiana||FP||Granted|
|THU, FEB 13, 2014 at 9:00 AM||William Eisele v. State of Indiana||NFP||Pending|
Two of the fourteen cases are direct appeals. Ballard v. Lewis is the Marion County City-County Council redistricting case in which the Court granted emergency transfer under Appellate Rule 56(A). Knapp v. State is a life without parole case, which is a direct appeal to the Supreme Court under Appellate Rule 4(A)(1)(a).
Of the remaining twelve transfer cases, one-third (4/12) involve unpublished opinions from the Court of Appeals. Interestingly, in two of those cases the losing party (Appellant) filed a motion to publish with the Court of Appeals, which was denied.
The earlier practice of scheduling oral argument to decide whether to grant appears to be declining. Less than 17% (2/12) of the transfer cases involve pending petitions to transfer.
Finally, almost 65% (9/14) of the arguments are in criminal cases. The three criminal cases argued on February 13 were scheduled for oral argument on fairly short notice. (The two cases that had previously been scheduled for oral argument on February 13 were removed from the calendar; one was continued, and the Court dismissed the petition in the other upon the request of the Appellant.) The order in Erkins/Ojile was issued January 16, and the orders in Eisele and Cross were issued on February 4. As counsel in one of those cases, I can report that the court administrator calls and secures counsels’ consent before scheduling oral argument with less than a month’s notice.
Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)
For publication opinions today (2):
In Joseph amd M. Carmen Wysocki v. Barbara A. and William T. Johnson, both individually and as Trustees of the Barbara A. Johnson Living Trust, a 9page opinion, Judge Friedlander writes:
Joseph and M. Carmen Wysocki appeal the denial of their request for attorney fees and additional damages under Indiana’s Crime Victims Relief Act, [IC 34-24-3-] (the CVRA). We affirm. * * *In CBR Event Decorators, Inc., Gregory Rankin, Robert Cochrane and John Bales v. Todd M. Gates , a 13-page opinion, Judge Robb writes:
The foregoing reflects that the elements of common-law fraud and the criminal offense of fraud are different. So, too, is the burden of proof necessary to prove those two allegations. Thus, it cannot be said that authorization of attorney fees in the CVRA for victims of criminal offenses that can be categorized as fraud extends to the common-law tort of fraud. Simply put, in its current form, the CVRA authorizes certain fees only for victims of certain, specific criminal offenses, as well as for liability arising under I.C. § 24-4.6-5 et seq., which does not apply here. The Wysockis were not victims of the criminal offense of fraud because the Johnsons were not charged with that crime in relation to the sale of the house, much less convicted of it in a court of law. In the absence of such a conviction, the CVRA does not apply. Accordingly, the trial court did not err in denying the Wysockis’ request for attorney fees under its provisions.
CBR Event Decorators, Inc. (“CBR”) and its individual shareholders Gregory Rankin, Robert Cochrane, and John Bales (collectively, “Shareholders”) bring this consolidated appeal, challenging the trial court’s award of attorney fees and order requiring $1,000,000 from a letter of credit to be deposited with the trial court clerk. The Appellants raise the following issues for our review: (1) whether, following a decision by this court in a previous appeal in this case, the trial court erred by ordering that the Shareholders be personally liable for attorney fees on a claim against CBR for wrongful stop payment of a check; (2) whether the trial court erred by failing to hold a hearing regarding the amount and reasonableness of attorney fees; (3) whether the attorney fee award of $290,093 was unreasonable; and (4) whether the trial court erred by granting an ex parte order requiring $1,000,000 from a letter of credit to be deposited with the trial court clerk. We conclude Shareholders are not personally liable for attorney fees on the wrongful stop payment claim.1 However, we find the ex parte order requiring deposit of $1,000,000 with the trial court clerk was not reversible error. Therefore, we affirm in part and reverse in part.NFP civil opinions today (3):
NFP criminal opinions today (6):
Courts - "Kentucky Attorney General Conway faces unenviable situation"
Columnist Joseph Gerth wrote yesterday in the Louisville Courier Journal that begins:
Attorney General Jack Conway, who wants to be the next governor, is in an unenviable situation.Here is the updated ILB post on the status of the Kentucky case, which involves the issue of whether Kentucky is required to give recognition to same sex marriages performed in other states.
With U.S. District Judge John G. Heyburn issuing his final ruling last week in the case challenging a Kentucky law that prohibits the state from recognizing gay marriages from elsewhere, Conway has to decide whether to appeal his decision.
He and governor Steve Beshear have said they’ll work quickly to decide whether to take the case to the 6th Circuit Court of Appeals in Cincinnati or if they’ll do as Democrats have done in six other states — walk away believing that the framework established by the U.S. Supreme Court in the Windsor case means that they can’t win. * * *
No matter what [AG] Conway decides, he’ll surely anger a sizable portion of Kentucky’s electorate — one group that could make it tough to win a Democratic primary for governor and the other group that could make it difficult to win the general election.
And while [Gov] Beshear says he has run his last political race, he certainly wants to protect his own image, lest he sully the Beshear brand as his son, Andrew, gears up to run for Attorney General in 2015.