Friday, May 22, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 4 NFP memorandum decisions)

For publication opinions today (2):

In Charles D. Howard v. State of Indiana, a 17-page opinion, Judge Pyle writes:

Howard makes three disjointed arguments on appeal under a general issue of due process. First, he mainly argues that we should reverse and dismiss his convictions for resisting law enforcement and public intoxication because the trial court never ruled on part of his motion to suppress/dismiss. Second, he argues that any evidence obtained after his arrest should have been excluded because the police did not give him a Miranda warning upon his arrest. Third, he contends that the trial court should have dismissed all charges against him pursuant to Criminal Rule 4.

We conclude that Howard’s arguments are either waived or otherwise without merit because: (1) the trial court issued a ruling on his motion to suppress/dismiss, and Howard did not object to the admission of evidence at trial; (2) the State did not introduce or seek to admit into evidence any of Howard makes three disjointed arguments on appeal under a general issue of due process. First, he mainly argues that we should reverse and dismiss his convictions for resisting law enforcement and public intoxication because the trial court never ruled on part of his motion to suppress/dismiss. Second, he argues that any evidence obtained after his arrest should have been excluded because the police did not give him a Miranda warning upon his arrest. Third, he contends that the trial court should have dismissed all charges against him pursuant to Criminal Rule 4.

We conclude that Howard’s arguments are either waived or otherwise without merit because: (1) the trial court issued a ruling on his motion to suppress/dismiss, and Howard did not object to the admission of evidence at trial; (2) the State did not introduce or seek to admit into evidence any of Howard’s post-arrest statements; and (3) Howard did not file a motion for discharge under Criminal Rule 4 or object to the trial court’s setting of any of his trial dates. Accordingly, we affirm his convictions.

In Leonard Blackmon v. State of Indiana , a 19-page, 2-1 opinion, Judge Baker writes:
Leonard Blackmon appeals his conviction for Intimidation, a Level 5 felony. Finding that the evidence was insufficient to prove that Blackmon acted with the intent that Donald Courtway be placed in fear of retaliation for a prior lawful act, as required by the intimidation statute, we reverse. * * *

May, J., concurs
Bradford, J., dissents with an opinion. [that begins, at p. 17] must respectfully dissent from the majority’s opinion as I would affirm Blackmon’s conviction for intimidation. * * *

Regardless of Courtway’s knowledge, Blackmon seems to have been of the mind that he had been caught and reacted aggressively. As such, I think it was reasonable for the jury to find that Blackmon threatened Courtway in retaliation for the prior lawful act of catching Blackmon stealing water.

Furthermore, I cannot agree with the narrow re-characterization of events to find that Blackmon only threatened Courtway in retaliation for his threatening to call the police, as opposed to his catching Blackmon stealing water. I see little logic in separating the act of catching someone performing illegal activity and subsequently calling the police regarding said activity; the two actions are part of the same series of events and, as such, the same prior lawful act.

NFP civil decisions today (0):

NFP criminal decisions today (4):

T.H. v. State of Indiana (mem. dec.)

Dedric Thompson v. State of Indiana (mem. dec.)

Rodney S. Perry, Sr. v. State of Indiana (mem. dec.)

Leonard Bond v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 22, 2015 12:21 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "First Church of Cannabis could test RFRA"

Vic Ryckaert of the Indianapolis Star had a long story May 21st subheaded "Courts ultimately might have to decide whether practices amount to sincere religion." Some quotes:

[Bill Levin, the founder of the newly formed First Church of Cannabis] is daring police to arrest him and his followers in what will likely be one of the first tests of the state's new RFRA protections. * * *

RFRA, designed to protect religion from being infringed upon by the government, drew unanticipated attention on the Hoosier state when it became widely viewed as a license to allow business owners to refuse service to same-sex couples.

Under intense public pressure, Indiana lawmakers amended RFRA to specify that it can't be used to undermine local human rights ordinances that protect lesbian, gay, bisexual and transgender people from discrimination in Indianapolis and 10 other cities.

Experts say the act opens a new doorway in Indiana that invites a host of legal challenges from religious practitioners throughout the state. Challenges like this one from the First Church of Cannabis.

"It's not the type of plaintiff that was expected or that probably most supporters of RFRA had in mind," said Robert A. Katz, a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.

ILB: But perhaps they should not be surprised. From a June 30, 2014 entry in Constitution Daily:
Here is the back story: In Employment Division v. Smith (1990), two American Indians who worked as private drug rehab counselors ingested peyote as part of religious ceremonies conducted by the Native American Church, and they were subsequently fired. The U.S. Supreme Court upheld the firing, with Justice Antonin Scalia saying that using a religious exemption in conflict of a valid law “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”

A near unanimous Congress passed RFRA in 1993 and President Bill Clinton signed the law. RFRA said that “governments should not substantially burden religious exercise without compelling justification” and “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”

More from the Star story:
Once a case gets to the courts, the state under RFRA must prove a compelling reason for government to interfere with religious practices, said Ken Falk, legal director of the American Civil Liberties Union of Indiana.

This elevated legal scrutiny makes it "very difficult for the government to win," Falk said. "That's something the court will have to wrestle with."

Falk pointed to other well-established religious traditions that are allowed. Catholics, Jews and members of other faiths drink wine at their services. Sometimes that wine is consumed by people who are under age 21.

"If you're drinking wine (and underage) in a nonreligious setting, you would be breaking the law," Falk said. "What's the justification if you smoke marijuana as part of your religion?"

Katz, the IU law professor, said the First Church of Cannabis will have to prove it's a sincere religion, not just an excuse for users to get together and smoke.

Posted by Marcia Oddi on May 22, 2015 09:29 AM
Posted to Indiana Courts

Courts - More on "Indiana church sues JPMorgan for millions"

In Jan. the ILB quoted a long CNNMoney story about a lawsuit by Christ Church Cathedral, which is the church on the Indianapolis Circle: "The church claims that JPMorgan intentionally mismanaged its funds, which shrank in the past decade. Meanwhile, the fees the church paid JPMorgan skyrocketed."

In a 16-page order dated May 21st, federal Judge Larry McKinney concluded:

For the reasons stated herein, the Court GRANTS Defendants JPMorgan Chase and Company’s and JPMorgan Chase Bank, N.A.’s, Motion to Dismiss, with leave to re- plead certain Counts: Count I is DISMISSED WITHOUT PREJUDICE as to both Defendants, with leave to re-plead; Count II is DISMISSED WITHOUT PREJUDICE as to JPMorgan Chase and Company only, with leave to re-plead; Count III is DISMISSED WITH PREJUDICE. Plaintiffs, The Rector, Wardens and Vestrymen of Christ Church Cathedral of Indianapolis, have 28 days from the date of this Order to file an Amended Complaint. Partial judgment shall not issue at this time.

Posted by Marcia Oddi on May 22, 2015 09:14 AM
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "In very short order every police department at every private college is going to have to open their records"

That statement is Frank LoMonte, executive director of the Student Press Law Center, who is quoted in this story today by Jake New of Inside Higher Ed:

Sworn police departments at private colleges in Ohio are public entities and subject to state open-records laws, the state’s Supreme Court ruled Thursday, saying that a college being a “private institution does not preclude its police department from being a public office.”

The ruling came a day after the Texas House of Representatives passed a bill requiring private institutions’ police departments to release some records, and one month after a judge in Indiana reached the opposite conclusion in a lawsuit against the University of Notre Dame.

“The handwriting is on the wall,” Frank LoMonte, executive director of the Student Press Law Center, said. “This is the direction the country is going in, and in very short order every police department at every private college is going to have to open their records. The legal fig leaf just got a lot smaller.” * * *

Unlike other sworn law enforcement agencies, sworn police officers at private colleges historically have not been seen as subject to open-records laws, even though they have the same authority as the agencies that are required to release records. That was the case at Otterbein, which has used sworn police officers since 2011.

A recent study by the Bureau of Justice Statistics found that nearly 40 percent of private colleges now use sworn, state-certified police officers, a growing trend that LoMonte said should result in more states requiring private colleges to release police records to the public.

While a judge rejected a similar argument in Indiana, LoMonte said he expects that decision to be appealed. In that case, ESPN is suing the University of Notre Dame for access to campus police records regarding sexual assault cases involving athletes.

In April, a Superior Court judge ruled that while Indiana state law allows private colleges to hire sworn officers, those police departments are not separate legal entities from the university. “If Notre Dame is a ‘public agency’ because it appoints police officers, it is a public agency, period,” the judge wrote.

“The Indiana judge just flat got it wrong,” LoMonte said. “He got really hung up on this idea that you can’t separate the police force from the institution. He treated it as an all-or-nothing question where, in order to open the police department, you have to open every record at Notre Dame. I think the judge really got hung up on a nonexistent technicality, and I think that will get corrected.”

ILB: Here is yesterday's Ohio decision, and here is an April 30th South Bend Tribune call for the General Assembly to clarify Indiana's law. However, ESPN announced May 20th that it will "appeal a northern Indiana judge's ruling that the University of Notre Dame police department is not subject to the state's open records law," as reported in this Chicago Tribune story:
Lawyers for ESPN filed a notice Wednesday with the Indiana Court of Appeals that it would appeal the April 20 ruling by St. Joseph Superior Court Judge Steven Hostetler.
ILB: Here is the 11-page, April 20th opinion by Judge Hostetler.

See also this Jan. 21, 2015 ILB post
on the Indiana Public Access Counseler's opinions which "put Notre Dame on notice about its handling of police records after complaints filed by ESPN and the South Bend Tribune," according to the SBT story.

Posted by Marcia Oddi on May 22, 2015 08:52 AM
Posted to Indiana Courts | Indiana Government

Thursday, May 21, 2015

Courts - "Ohio: Private college police subject to records law"

From the start of an AP story this afternoon in the South Bend Tribune:

COLUMBUS, Ohio — Private colleges' police departments in Ohio are subject to the state open records law, a divided Ohio Supreme Court ruled Thursday in a case involving a lawsuit brought by a student journalist.

The court's 4-3 decision said the police department at Otterbein University near Columbus is a public office because its personnel are state-certified police officers.

"Here, the mere fact that Otterbein is a private institution does not preclude its police department from being a public office," the court said in an unsigned majority opinion.

The case is similar to one in Indiana, in which ESPN this year sued the University of Notre Dame for refusing to release campus police records requested by the Bristol, Conn.-based sports network. Notre Dame officials maintain that, because it's a private university, Notre Dame Security Police records are not subject to Indiana's public records law.

A St. Joseph Superior Court judge last month ruled in Notre Dame's favor. ESPN on Wednesday filed a notice with the Indiana Court of Appeals that it will appeal the ruling.

Here is the story by Cory Shaffer | Northeast Ohio Media Group at Cleveland.com. It includes a link to the opinion and begins:
COLUMBUS, Ohio -- Documents kept by an Ohio private university's police department should be available to the public, the state's high court said in decision Thursday that could open up police records at many private universities across the state.

Otterbein University was ordered to hand over police documents to a campus publication, because the university's police department was established by state law and performs a key action of the government, the Ohio Supreme Court ruled in a 4-3 decision.

The case, Schiffbauer v. Banaszak, was brought by Anna Schiffbauer, editor of Otterbein360.com. Schiffbauer sued campus police chief Larry Banaszak after he denied to release police reports and other documents, claiming that since the university and the police department were private entities, its records are not subject to Ohio's Public Records Act.

Posted by Marcia Oddi on May 21, 2015 04:36 PM
Posted to Courts in general

Ind. Courts - Updated: Whether SCOTUS will grant cert in Manzano v. Indiana likely to be decided tomorrow [Updated]

Updating this brief post from yesterday, SCOTUSblog now has a new post on petitions to watch at today's SCOTUS conference.

[Updated at 3:43 PM] Still not action, one way or the other, per this SCOTUSblog post this afternoon: "Even with the two-week intermission since the last Conference, the Court didn’t clear out its lingering relists this week."

Posted by Marcia Oddi on May 21, 2015 11:31 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 2 NFP memorandum decisions)

For publication opinions today (0):

NFP civil decisions today (2):

In the Matter of the Term. of the Parent-Child Relationship of: J.G. (minor child) and A.G. (mother) v. The Ind. Dept. of Child Services (mem. dec.)

Michael R. Stark v. Cathy S. Stark (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on May 21, 2015 11:04 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court dismisses now moot certified question

On July 7, 2014, the ILB posted that the Supreme Court had accepted a certified question from the federal district court for the ND Indiana, in the case of Robertson v. Medical Assurance Co., Inc. n/k/a Proassurance Indemnity Co., Inc.

Today the Court has posted an order, filed May 19th:

The district court tendered its certified question on June 6, 2014.

On May 12, 2015, the District Court entered an order dismissing the underlying federal action with prejudice, based on the parties' stipulation of dismissal, and directing its clerk to notify us that the certified question “has been rendered moot by this dismissal.”

Being duly advised, the Court now DISMISSES this proceeding as moot.

Posted by Marcia Oddi on May 21, 2015 10:58 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Indiana nursing home developer seeks to skirt Wisconsin's nursing home limits"

A lengthy, interesting story this morning in the Milwaukee Journal Sentinel, reported by Kathleen Gallagher, begins:

An Indiana nursing home company that was tied to a legislative ethics scandal in that state last year says it wants to build more than two dozen facilities in Wisconsin, a proposal that would require it to bypass a decades-old cap on nursing home beds here.

Critics worry that an amendment accommodating the proposal could be slipped into Wisconsin's budget bill on Thursday, which would allow it to avoid the public scrutiny given to ordinary legislation.

Posted by Marcia Oddi on May 21, 2015 10:29 AM
Posted to Indiana Government

Wednesday, May 20, 2015

Ind. Courts - "Newburgh attorney pleads guilty to impersonating public servant"

Mark Wilson of the Evansville Courier & Journal reports today [ILB emphasis]:

PRINCETON, Ind. - A Newburgh attorney who has pleaded guilty to impersonating a public servant could have the charge dismissed if he successfully completes probation.

Brian J. Oberst, 39, was accused of showing a Vanderburgh County Prosecutor’s Office badge to a deputy and claiming to still be with the office during a January traffic stop in Gibson County. He was charged with the crime as a level 6 felony.

Oberst maintains a law practice in Evansville. He has not worked as a prosecuting attorney since 2009.

He appeared in Gibson Circuit Court on May 15 and pleaded guilty to the charge as a class A misdemeanor as part of a plea agreement.

Judge Jeffrey Meade accepted the plea and ordered Oberst to participate in six months of probation in the county’s first-time offender program. The program allows first-time offenders a chance to have their cases dismissed if they successfully complete probation requirements. If Oberst successfully completes probation, no conviction would be entered.

“According to my understanding, the (Indiana Supreme Court) Disciplinary Commission does not take formal action against an attorney if a criminal charge is not recorded,” said attorney Douglas Walton, who represents Oberst. * * *

A second felony charge of impersonating a public servant is still pending in Warrick County for what officials say was a similar incident there two weeks after Oberst’s Gibson County traffic stop. He is next scheduled to appear in court there at 9 a.m. June 15.

Posted by Marcia Oddi on May 20, 2015 04:44 PM
Posted to Indiana Courts

Ind. Courts - Whether SCOTUS will grant cert in Manzano v. Indiana likely to be decided tomorrow

On April 10, 2015, SCOTUSblog named the petition for cert now pending in Manzano v. Indiana as its "Petition of the Day." A look today at the SCOTUSblog case page shows that the petition appears to be inching closer to a grant, or at least a decision one way or another, perhaps at tomorrow's SCOTUS conference.

Posted by Marcia Oddi on May 20, 2015 04:35 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Bond sought for suspect in fatal shooting"

That is the headline to this story today by Mark Wilson of the Evansville Courier & Press, who reports:

EVANSVILLE - Just four days after two brothers turned themselves in to face charges in a fatal Evansville shooting, the Indiana Court of Appeals made a ruling that could influence the case here.

A defense attorney on Wednesday argued that bail should be set for Darius Suggs, one of the brothers charged with murder in the shooting — something not normally granted in Indiana murder cases.

However, the appeals court ruled in an Indianapolis case that a judge erred in not considering all the evidence in a bail hearing for a murder suspect, and that the right to bail "is founded on a presumption of individual innocence."

Darius Suggs, 29, and Robert Suggs, 27, are charged in the death of 28-year-old Chavar "Nupin" Snider, who was shot in the head on South Morton Avenue on May 6. The brothers turned themselves in after a warrant was issued for their arrests on May 8.

"No witnesses said they saw him fire a weapon or that he had a weapon, if we are basing this just off probable cause," said John Brinson, lawyer for Darius Suggs.

Vanderburgh Superior Court Judge Robert Pigman took the arguments under advisement. * * *

Brinson cited the May 12 Indiana Court of Appeals ruling which overturned a Marion County judge's decision not to set bail for James Satterfield because the judge did not consider evidence of self-defense.

The appeals court ruling cited Indiana Constitution wording which says: "Murder or treason shall not be bailable, when the proof is evident, or the presumption strong."

"Thus, the denial of the right to award bail where the proof of guilt is not evident or the presumption of guilt is not strong would be a deprivation of liberty without due process of law, in violation of the Constitution, which would — rightly — call for prompt corrective action," according to the appeals ruling.

The nine-page affidavit mentioned a feud between Robert Suggs and Snider several times but did not specify what the exact issue was between the two men. However, police interviewed several people during the investigation who said the victim and one of the suspects were in an ongoing feud over their rap music.

The affidavit also was unclear on who investigators believed was involved in the gunfire. Witnesses told investigators that they believed several shots were fired during the incident. However, Snider was only shot once — in the back of the head — according to the affidavit.

The May 12th opinion in Satterfield is available here.

Posted by Marcia Oddi on May 20, 2015 03:46 PM
Posted to Indiana Courts

Ind. Gov't. - Plans for hog CAFO in Porter County withdrawn

"Porter County residential, agriculture interests clash over proposed pig facility" was the heading of this April 13th ILB post about, to quote the NWI Times, "a request for Porter County to rezone 40 acres in Morgan Township to allow for a confined feeding operation designed to raise 5,600 pigs at a time."

The Times' Matthew Stefanski reported May 13th on a meeting to review a rezoning proposal to allow the CAFO. The long story includes photos and maps. Some quotes:

The proposal for the concentrated animal feeding operation, which will be owned by Robert Sands at 181 S. Smoke Road, has generated controversy after residents raised concerns about its potential odor, increased traffic and decreased values for nearby properties.

About 50 people attended the meeting, which was not a public hearing and did not offer the opportunity for public comment.

Porter County Plan Commission Executive Director Bob Thompson said the meeting was simply a technical review of the proposal before it goes to the Porter County Plan Commission. Owners of the CAFO are seeking to rezone 40 acres from general agriculture to a high impact district, which would have to be approved by the Plan Commission.

The CAFO proposal calls for two 101-by-10-by-261-feet buildings that will house about 2,800 hogs per building. Pigs will be brought into the buildings when they weigh about 15 pounds, said Mike Veenhuizen of Livestock Engineering Solutions of Greenwood, Ind., who represented Sands at the meeting. They will stay at the CAFO until they weigh about 280 pounds, which takes about six months.

The buildings will house self-contained storage areas to keep manure, where it will be stored for about one year. Veenhuizen said the storage areas will be able to house about seven feet and four inches of manure in an eight foot tank. Veenhuizen asserted Sands would be able to manage the appropriate amount of nutrients in manure, by testing the manure at least once a year in accordance with Indiana Department of Environmental Management requirements.

Committee members voiced their concerns regarding potential odors in the area. Veenhuizen referred to a field test model from Purdue, and said the odors would be 99 percent contained within a half-mile of the facility.

If the proposal is approved, water and sewer would need to be provided to the CAFO through local utilities, due to high impact redistricting. In addition, committee members said Sands would have to comply with a Porter County ordinance that prohibits any discharge other than storm water into water drains.

Porter County Highway Superintendent David James voiced concerns about transportation to the farm on Ind. 8 near the proposed location, which currently doesn't accomodate regular semi-truck traffic. Semis will be used to transport livestock every six months when hogs are shipped out and new shipments are brought in. Trucks will also regularly transport feeding supplies to the facility.

Soil and Water Conservation District engineer Harvey Nix raised concerns about where the remains of dead hogs will be placed. Veenhuizen said there is no current plan regarding a location for dead hogs. He said due to the size of the facility, on-site burials would not be possible. Veenhuizen suggested incineration and composting would be possible options.

On May 18th the same reporter wrote:
The family proposing a hog farm in Morgan Township has decided not to pursue the project after facing wide opposition from local residents.

Robert Sands and family announced their plans to withdraw a rezoning proposal for the concentrated animal feeding operation at a press conference on Monday at the family’s farm.

The same day Amy Lavalley reported in the Gary Post-Tribune in a legthy story:
Opponents of an industrial hog farm proposed for Morgan Township called their efforts a success Monday after they learned that the proposal for the 5,600-hog operation has been withdrawn.

Robert Sands announced Monday afternoon on his property that he had withdrawn a zoning change petition that would have accommodated the proposed facility. His son, Brandon, an agricultural student at Ivy Tech Community College in West Lafayette, had pitched the proposal to his father as a way of growing the family farm at 181 S. Smoke Road. * * *

The proposal, which required a land rezoning from general agriculture to high-impact use because it needs a permit from the Indiana Department of Environmental Management, was scheduled to go before the Porter County Plan Commission for a May 27 hearing. That meeting has been canceled. * * *

On Friday, Mayor Jon Costas filed a letter against the farm with the Porter County Plan Commission. City staff members recently toured Belstra Milling's operation at Fair Oaks.

"I'm glad to hear the petition was withdrawn because it was simply not a good location for this operation," Costas said Monday, adding other places are better suited for industrial farms. "These operations are necessary and everyone likes bacon, but to have such an intense operation that close to a growing city is not good planning."

A plan would not have been the first CAFO in Porter County. One that has 4,000 hogs operates in Kouts.

See also Post-Tribune columnist Jerry Davich's May 19th article, "Grass-roots activism flexes more muscle, less pork."

Posted by Marcia Oddi on May 20, 2015 01:19 PM
Posted to Environment | Indiana Government

Ind. Decisions - "Neither party’s appendix is particularly helpful to this court"

A reader points to a footnote in a NFP decision today, In re: The Adoption of A.S.B., S.B. v. K.E. (mem. dec.) that includes useful information of broader interest that might otherwise be overlooked. Footnote 1 on p. 2 [which the ILB has paragraphed]:

Neither party’s appendix is particularly helpful to this court.

S.B.’s appendix consists of the Chronological Case Summary (“CCS”), the appealed order, and excerpts from the transcript and selected exhibits from the contested adoption hearing.

K.E.’s appendix consists of excerpts from the transcript and additional exhibits from the contested adoption hearing.

Indiana Appellate Rule 50(F) provides: “Because the Transcript is transmitted to the Court on Appeal pursuant to Rule 12(B), parties should not reproduce any portion of the Transcript in the Appendix.” The “Transcript” is defined to include any exhibits associated with the proceedings. Ind. Appellate Rule 2(K).

In essence, then, two appendices have provided only the CCS and the appealed order.

In addition, we may not have the entire CCS. S.B. notes that the Noble County Clerk provided a CCS with “a sideways orientation” and was unwilling to provide “a correctly oriented” copy. Appellant’s Appendix, Table of Contents n.1. However, it does not appear that the CCS was printed in landscape orientation but rather, the bottom of each page may be cut off. And if part of each page is not actually missing, it is certainly obscured by the binding.

Posted by Marcia Oddi on May 20, 2015 12:30 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - So ... Where did the rollercoaster come from?

The ILB sent an inquiry to Martin DeAgostino, the Communications Director for the Indiana Court of Appeals, re the photo of the rollercoaster that appears in the archived videocast of the oral argument yesterday in the challenge to the Indianapolis smoking ban. The response:

The image you’re asking about is a stock image that is preloaded into our recording system. The image inadvertently appeared during the webcast when the system operator made a stray keystroke. It in no way involves any question of system integrity or “hacked” access to the webcast or the Court’s webcasting system.
Good to know!

Posted by Marcia Oddi on May 20, 2015 12:12 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 8 NFP memorandum decisions)

For publication opinions today (3):

In Erica L. Jackson v. State of Indiana , an 11-page opinion, Judge Bailey writes:

Jackson did not deny that the acts charged by the State were committed. She claimed that another individual was the perpetrator. As there was no controversy regarding whether a lesser offense was committed while a greater offense was not, the trial court did not abuse its discretion by refusing the instruction. * * *

Jackson claims that the trial court abused its discretion by admitting State’s Exhibits 5 and 6 and related testimony because Jackson’s photograph was a higher quality close-up causing her features to be more distinguishable than those of the women in jail intake photographs. * * * Here, our examination of the photo array does not lead to the conclusion that the distinction identified by Jackson is critical such as to likely lead to misidentification. Each of the photographs is of sufficient clarity to allow an examination of facial features. * * *

Jackson did not establish that the trial court abused its discretion by refusing her proffered instruction, nor did Jackson establish that the trial court abused its discretion in the admission of evidence.

In Tiras D. Johnson v. State of Indiana , a 9-page opinion, Judge Mathias writes:
Tiras Johnson (“Johnson”) appeals the Madison Circuit Court’s revocation of his probation and argues that the trial court abused its discretion when it denied his motion to suppress evidence seized during a warrantless search of his friend’s residence. * * *

For all of these reasons, we conclude that the trial court acted within its discretion when it admitted evidence that the officers discovered a large quantity of marijuana in Johnson’s backpack when they executed the search warrant. Therefore, we affirm the trial court’s order denying Johnson’s motion to suppress and finding that he violated his probation.

In Michael Whittaker v. State of Indiana, a 7-page opinion, Sr. Judge Darden writes:
Michael Whittaker appeals his sentence for his conviction of theft, a Class D felony, Indiana Code section 35-43-4-2 (2009), and his adjudication as an habitual offender, Indiana Code section 35-50-2-8 (2005). We affirm.

Whittaker presents one issue for our review, which we restate as: whether the savings clause of the 2014 criminal code revision violates the Equal Privileges and Immunities Clause of the Indiana Constitution. * * *

Specifically, he argues that the savings clause improperly prohibits the ameliorative sentencing statutes of the new criminal code to apply to certain offenders, including himself. * * *

Whittaker argues that the savings clause unconstitutionally created two classes of offenders: those who committed their offenses before the new criminal code went into effect on July 1, 2014 but were sentenced after that date and those who committed their offenses after the July 1, 2014 effective date. He maintains that the date of the offense is not reasonably related to any inherent characteristic that distinguishes the two classes. * * *

Whittaker, in an act of free will, selected his offense date as August 31, 2013, thereby choosing to commit theft as a Class D felony subject to a sentence of six months to three years. See Ind. Code §§ 35-43-4-2(a), 35-50-2-7(a). By doing so, he differentiated himself from those offenders who committed the offense of theft after July 1, 2014. Thus, we find that Whittaker is not similarly situated to those defendants who committed offenses after July 1, 2014, and, therefore, he has no viable equal privileges and immunities claim.

NFP civil decisions today (1):

In re: The Adoption of A.S.B., S.B. v. K.E. (mem. dec.)

NFP criminal decisions today (7):

Jonte Twan Crawford v. State of Indiana (mem. dec.)

Jessica Cundari v. State of Indiana (mem. dec.)

Tony R. Johnson, Jr. v. State of Indiana (mem. dec.)

Tyler Michael Cottrell v. State of Indiana (mem. dec.)

Cleverly P. Lockhart v. State of Indiana (mem. dec.)

Elyse S. Barnfield v. State of Indiana (mem. dec.)

Roy G. Dinwiddie v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 20, 2015 10:09 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides two today

In Kevin Charles Isom v. State of Indiana, a 5-0, 30-page opinion, Justice Rucker writes:

After a trial by jury Kevin Charles Isom was found guilty of three counts of murder for which the jury recommended and the trial court imposed a death sentence. In this direct appeal Isom raises the following rephrased issues: (1) did the trial court err by denying Isom’s for-cause challenges to certain prospective jurors; (2) did the trial court err in denying Isom’s motions for mistrial; (3) did the trial court abuse its discretion in instructing the jury; (4) did the trial court err by refusing to allow a witness to answer a question posed by a juror; (5) did the State commit prosecutorial misconduct during closing arguments in the penalty phase of trial; (6) is revision of Isom’s death sentence warranted; and (7) did the trial court issue an illegal or void sentence. We affirm Isom’s conviction and death sentence, but remand with instructions to issue a new sentencing order consistent with this opinion. * * *

A trial court cannot impose consecutive sentences in the absence of express statutory authority. Mask v. State * * *

Accordingly, “the death penalty is not ‘a term of imprisonment’” within the meaning of I.C. § 35-50-1-2. Id. In consequence the trial court here exceeded its statutory authority by ordering Isom’s death sentences to be served consecutively.

We affirm Isom’s convictions and remand this cause to the trial court with instructions to issue a new sentencing order consistent with this opinion.

In Roy Bell v. State of Indiana, an 8-page, 5-0 opinion, Justice Rucker writes:
Twenty-four-year-old Roy E. Bell was charged in a multi-count information with murder, felony murder, burglary, robbery, and criminal confinement. The State also sought life imprisonment without parole. After a bench trial Bell was found guilty as charged, and the trial court sentenced him to life imprisonment for the murder conviction. In addition the trial court sentenced Bell to a term of years for the burglary and robbery convictions. Bell now appeals challenging the sufficiency of the evidence supporting his murder conviction. We affirm the judgment of the trial court.

Posted by Marcia Oddi on May 20, 2015 09:56 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit reaffirms its Notre Dame ACA opinion, notwithstanding the SCOTUS ruling in Hobby Lobby

On March 9th, the SCOTUS sent Notre Dame v. Sebelius (now Burwell) back to the 7th Circuit. As Lawrence Hurley reported on March 9th for Reuters:

The Supreme Court on Monday threw out an appeals court decision that went against the University of Notre Dame over its religious objections to the Obamacare health law’s contraception requirement.

The justices asked the 7th U.S. Circuit Court of Appeals to reconsider its decision in favor of the Obama administration in light of the June 2014 Supreme Court ruling that allowed closely held corporations to seek exemptions from the provision.

The court’s action means the February 2014 appeals court ruling that denied the South Bend, Indiana-based Roman Catholic university an injunction against the requirement has been wiped out. * * *

The Notre Dame case was the only appeals court decision on that issue that pre-dated the Hobby Lobby ruling.

Late yesterday the 7th Circuit decided in a 50-page, 2-1 opinion by Judge Posner, University of Notre Dame v.
Sylvia Mathews Burwell
, joined by Judge Hamilton (beginning on p. 26), with Judge Flaum dissenting (beginning on p. 41), to again affirm the trial court's denial of preliminary relief.

Posted by Marcia Oddi on May 20, 2015 08:07 AM
Posted to Ind. (7th Cir.) Decisions

Tuesday, May 19, 2015

Ind. Decisions - Supreme Court issues a second opinion today

In Cornelius Hines v. State of Indiana, a 5-0, 14-page opinion, Justice Dickson writes:

Following a jury trial, the defendant Cornelius Hines was convicted of Criminal Confine-ment and Battery. He has appealed claiming violations of both Indiana's constitutional and com-mon law proscriptions against double jeopardy and seeking review of sentence inappropriate-ness. We find that the defendant's two convictions do not violate the common law but do run afoul of the Double Jeopardy Clause of the Indiana Constitution. * * *

The continuous crime doctrine does not apply to the facts of this case, but the circum-stances of the trial establish a violation of the Indiana Constitution's Double Jeopardy Clause un-der the actual evidence test. We vacate the defendant's conviction for Battery as a Class D fel-ony and its concurrent three year sentence but affirm his conviction and eight year sentence for Criminal Confinement as a Class C felony. We decline to grant relief under Appellate Rule 7(B) for sentence inappropriateness. This cause is remanded to the trial court for further proceedings consistent with this opinion.

Rush, C.J., and Rucker and David, JJ., concur.
Massa, J., concurs in result.

Posted by Marcia Oddi on May 19, 2015 05:50 PM
Posted to Ind. Sup.Ct. Decisions

Environment - "Cases of avian influenza have spread through 15 states, including Indiana"

This very concerning story by Lauren Slavin appears in today's $$$ Bloomington Herald-Times. A much shortened version is available through the Indiana Economic Digest.

Posted by Marcia Oddi on May 19, 2015 02:26 PM
Posted to Environment

Ind. Courts - More on "Appeals court hears challenge to Indianapolis smoking ban"

A reader watching the oral argument the ILB linked to this AM, in the Indianapolis smoking ban challenge, points out that at about 4:24 into the argument, the video cuts to a shot of a rollercoaster while the judges' voices continue in the background. The ILB was able to take a screenshot:

This does raise some questions about the integrity of the system.

Posted by Marcia Oddi on May 19, 2015 02:08 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 6 NFP memorandum decisions)

For publication opinions today (1):

In City of Fort Wayne v. Katie Parrish, an 11-page opinion, Judge Pyle writs:

Appellant/Defendant, City of Fort Wayne (“the City”), files an interlocutory appeal of the trial court’s grant of Appellee/Plaintiff, Katie Parrish’s (“Parrish”), motion in limine seeking to exclude evidence from her personal injury/tort claim trial regarding the fact that she was not wearing a seatbelt when a car in which she was a passenger was involved in an automobile accident.

On appeal, the City argues that the trial court abused its discretion when it granted Parrish’s motion because evidence that she was not wearing a seatbelt when she was involved in an accident involving a Fort Wayne police officer was admissible to prove that she was guilty of contributory negligence for her injuries. In support of this argument, the City claims that Parrish was negligent per se for violating Indiana’s mandatory passenger restraint act (“Seatbelt Act”). In response, Parrish argues that a violation of the Seatbelt Act cannot be used as evidence to prove fault under a theory of contributory negligence.

Because we conclude that the Indiana Legislature did not clearly intend to deviate from common law when it enacted the Seatbelt Act, we agree that a violation of the Seatbelt Act may not be used to prove contributory negligence, and therefore the trial court did not abuse its discretion when it granted Parrish’s motion in limine.

NFP civil decisions today (3):

In re the Marriage of: John Mikicich v. Claudia Mikicich (mem. dec.)

In the Matter of the Commitment of A.A. v. Indiana University Health Bloomington Hospital (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of, J.H. (minor child), and K.T. (father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (3):

Lorie Bohannon v. State of Indiana (mem. dec.)

Angela Cash-Hilyard v. State of Indiana (mem. dec.)

Thomas J. Mure v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 19, 2015 01:57 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court suspends former Lake Co. Clerk for 4 years, without automatic reinstatement

In In the Matter of: Thomas R. Philpot, a 3-page, 3-2 per curiam opinion, the Court writes:

We find that Respondent, Thomas Philpot, engaged in attorney misconduct. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least four years without automatic reinstatement. * * *

In September 2011, Respondent was charged in the United States District Court for the Northern District of Indiana with three counts of mail fraud and two counts of theft from a federally-funded program, all felonies. In August 2012, Respondent was convicted by a jury on all counts. After post-trial proceedings, Respondent was adjudicated guilty on the jury’s verdicts as to two counts of mail fraud and one count of theft. Respondent’s convictions were affirmed on appeal. U.S. v. Philpot, 733 F.3d 734 (7th Cir. 2013), reh’g and reh’g en banc denied. Respondent’s convictions resulted from his use of federal funds to pay himself impermissible bonuses in connection with work he performed in his capacity as the elected Clerk of Lake County, Indiana. ** *

All Justices concur except Rush, C.J., and Dickson, J., who dissent, believing Respondent should be disbarred.

ILB: The ILB has many earlier posts on Mr. Philpot's legal troubles.

Posted by Marcia Oddi on May 19, 2015 01:42 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Task force aims to unclog tax court backlog"

Dan Carden reports in the NWI Times:

INDIANAPOLIS | A state appellate court specializing in difficult tax issues is going under the microscope in hopes of discovering the causes of a growing case backlog.

The Indiana Supreme Court last week established a nine-member advisory task force to study over the next year the workload, resources, staffing, performance and operations of the one-judge Indiana Tax Court.

Chief Justice Loretta Rush said it will be the first comprehensive review of the specialty court in its nearly 30 years of operation, and is needed now because the tax court appears to be concluding fewer cases than in the past.

For example, under Judge Thomas Fisher, a former Jasper County prosecuting attorney who moved to senior judge status in 2011, the tax court typically resolved 70 to 100 cases a year and carried over about 130 into the next year, except in his final year when just 91 cases remained.

Productivity dropped significantly after tax court Judge Martha Blood Wentworth was appointed by Republican Gov. Mitch Daniels to replace Fisher four years ago. She was retained by Hoosier voters in 2014 for a 10-year term.

In 2011, Wentworth's first year on the bench, the tax court ruled in just 48 cases, leaving 140 remaining at the end of the year. The number of pending cases grew to 175 in 2012, 193 in 2013 and totaled 191 on Dec. 31, 2014.

ILB: Although the story also notes:
Tax court cases tend to be among the most complicated in the Indiana judiciary, often involving corporate tax disputes over multiple tax years with significant potential refund ramifications for the state and local governments.
This is often not the case. The area is specialized, but the majority of the cases are straighforward.

For more, see this ILB post from May 15th and the links to background at the end of that post.

Posted by Marcia Oddi on May 19, 2015 09:55 AM
Posted to Ind. Tax Ct. Decisions

Courts - "The New Orleans Advocate intervenes in federal litigation, seeking transparency"

From the May 19th story in The Advocate, reported by Gordon Russell:

The matter is before the 5th U.S. Circuit Court of Appeals.

The newspaper’s filing states that the sealed matter before the appellate court “may concern” a petition for writ of mandamus originating from the government’s case against Frank Fradella, a convicted businessman who bribed [former New Orleans Mayor Ray] Nagin and then served as one of the lead witnesses against the former mayor in his 2014 trial.

But determining such basic information is impossible because the entirety of the case is under seal at the appellate level. On the Public Access to Court Electronic Records system, or PACER, the case is listed simply as “In re: Sealed Petitioner” — meaning it’s impossible to know even the names of the parties to the dispute. * * *

The newspaper’s filing cites U.S. v. Moussaoui, in which members of the media were permitted by a federal appeals court to view various aspects of the government’s case against an accused al-Qaida operative that had initially been kept secret.

Posted by Marcia Oddi on May 19, 2015 09:46 AM
Posted to Courts in general

Ind. Courts - "Appeals court hears challenge to Indianapolis smoking ban"

An Indiana Court of Appeals panel heard oral argument yesterday in the case of Whistle Stop Inn et al v. City of Indianapolis et al. You may watch the videocast here.

Jill Disis reports today in the Indianapolis Star:

The owners of two Indianapolis bars believe they've found an argument that could overturn the city's 2012 smoking ban once and for all — and it starts with a single question:

Why should the city be allowed to permit smoking in its sole off-track betting facility, while simultaneously prohibiting it in bars that don't offer gambling?

It shouldn't, says attorney Mark Small, who argued Monday before the Indiana Court of Appeals on behalf of the Whistle Stop Inn and the Thirsty Turtle. In fact, Small said, that gambling exemption might be unconstitutional.

"What we have here is simply unequal treatment in Indiana," he said.

The legal challenge heard before the appellate court is the latest attempt to reverse the city's smoking ban, which went into effect in June 2012. A Marion Superior Court judge earlier granted summary judgment to the city in the case.

Small also was involved in a previous case heard before the 7th U.S. Circuit Court of Appeals in November 2013. That court upheld the ban.

What is different now? The story continues:
Small's case hinged in part on a ruling made by the Indiana Supreme Court in February 2014, when it struck down an Evansville ordinance that extended a city smoking ban to bars and restaurants but exempted the Tropicana casino.

In that case, the court rejected the ordinance, ruling 3-2 that the ban violated the Equal Privileges and Immunity Clause of the Indiana Constitution, which says the General Assembly "shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." If the state wants to carve out an exemption, the court said, it needs to show that there is an "inherent difference" in the item or organization for which that exemption is being made.

The exemption made for the Winner's Circle, Small claims, is no different from the one for the Tropicana casino.

"What is there about betting on horses and drinking that inherently involves smoking?" he said. "That's not an inherent part of the activity."

Mark Crandley, the attorney representing Winner's Circle owner Hoosier Park LLC, argued that the Evansville case is not comparable to the latest challenge.

"In this very unique circumstance, it is different than riverboat gambling," Crandley said, pointing to the differences in how off-track betting facilities and riverboat casinos are regulated. "The General Assembly chose to include in the Horse Racing Commission statute a provision requiring review of the smoke handling and other smoking issues. There is nothing like that in the riverboat casino statute."

Adriana Katzen, an attorney representing the city of Indianapolis, backed that argument. She said the regulations put in place by the Horse Racing Commission require those types of gambling facilities to take into account the "public welfare" and "public interest," including a requirement for air ventilation.

Here is a link to the Feb. 11, 2014 3-2 Supreme Court opinion in two combined cases challenging the Evansville smoking ordinance amendment.

Posted by Marcia Oddi on May 19, 2015 09:05 AM
Posted to Indiana Courts

Monday, May 18, 2015

Ind. Decisions - Supreme Court denies another transfer petition; revises 5/15/15 transfer list.

In a 4-page published order filed May 15th but just posted this afternoon, the Supreme Court has denied transfer, after oral argument, in the case Thomson Inc. n/k/a Technicolor USA. Inc. v. Insurance Com. The 6/19/14 Court of Appeals opinion is to be certified as final.

The vote is 3-2:

Dickson, David, and Massa, JJ., concur.
Rush, C.J., dissents to the denial of transfer with a separate opinion, in which Rucker, J., joins. [It begins]
I respectfully dissent from the denial of transfer because, like Chief Judge Vaidik, I see no material difference between the policy language in this case and the similar language we interpreted in Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049 (Ind. 2001). Simply changing “all sums” to “those sums,” and placing “during the policy period” in the insuring clause rather than in the definition of “occurrence,” does not unambiguously permit Thomson’s various insurers to prorate coverage between themselves—and any ambiguity in that regard must be strictly construed against the insurer. There is also no principled method to calculate such a proration—only guesswork under the guise of “factfinding.” We should not burden trial courts with that task based on policy language that is ambiguous at best.
This order was not included on the transfer list posted this morning, but it does appear as the next-to-last entry in a list revised and reposted this afternoon.

Posted by Marcia Oddi on May 18, 2015 03:46 PM
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Law - Summer Training Camp for Litigators

The Litigation Section of the ISBA is holding the Summer Training Camp (6 hrs. CLE/1.5 hrs. Ethics) on June 26th in the NCAA Hall of Champions. Details, including the agenda, are available here.

Posted by Marcia Oddi on May 18, 2015 11:27 AM
Posted to Indiana Law

Courts - SCOTUS rules: "Maryland has been illegally double-taxing people who earn income in other states"

Bill Turque has a story in the Washington Post about today's SCOTUS decision in Comptroller v. Wynne. A 1938 decision relating to Indiana is discussed on p. 6:

Our existing dormant Commerce Clause cases all but dictate the result reached in this case by Maryland’s highest court. Three cases involving the taxation of the income of domestic corporations are particularly instructive.

In J. D. Adams Mfg. Co. v. Storen, 304 U. S. 307 (1938), Indiana taxed the income of every Indiana resident (including individuals) and the income that every nonresident derived from sources within Indiana. Id., at 308. The State levied the tax on income earned by the plaintiff Indiana corporation on sales made out of the State. Id., at 309. Holding that this scheme violated the dormant Commerce Clause, we explained that the “vice of the statute” was that it taxed, “without apportionment, receipts derived from activities in interstate commerce.” Id., at 311. If these receipts were also taxed by the States in which the sales occurred, we warned, interstate commerce would be subjected “to the risk of a double tax burden to which intrastate commerce is not exposed, and which the commerce clause forbids.” Ibid.

An AP story reports:
The 5-4 ruling means the loss of hundreds of millions of dollars in revenue for Maryland and affects similar laws in other states, including New York, Indiana, Pennsylvania and Ohio.

Posted by Marcia Oddi on May 18, 2015 11:13 AM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 2 NFP memorandum decisions)

For publication opinions today (1):

In Gary P. Byers v. Robert E. Moredock and Rhoda S. Moredock, a 14-page opinion, Judge Brown concludes:

In sum, the provisions of the Ordinance cited by Byers were inapplicable to the Moredocks and did not impose any duty on them to confine or restrain a dog in the care of the tenant or residents of the Property; the Moredocks were not the owners or keepers of the dog that struck Byers’s motorcycle and had no duty to confine or control the dog on that basis; and the Moredocks as the owners of the Property and landlords did not have a duty to ensure proper or adequate confinement or control of the dog, or to monitor the tenant or residents of the Property to ensure they properly or adequately confined or controlled the dog. Accordingly, summary judgment in favor of the Moredocks and against Byers was proper.

For the foregoing reasons, we affirm the trial court’s entry of summary judgment in favor of the Moredocks and against Byers.

NFP civil decisions today (1):

In re the Paternity of J.A.S.: H.S. v. N.L. (mem. dec.)

NFP criminal decisions today (1):

Anthony Armacost v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 18, 2015 11:02 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 15, 2015 [Updated]

Here is the Clerk's transfer list for the week ending Friday, May 15, 2015. It is three pages (and 29 cases) long.

Seven transfers were granted last week:

  • YTC Dream Homes, Inc., et al. v. DirectBuy, Inc., et al. - the Court granted transfer and issued a brief per curiam opinion re pro hac vice admissions on May 12th - see ILB post here.

  • Christopher Tiplick v. State of Indiana - This was the 2-1 Jan. 27, 2015 opinion ruling that certain definitions of "synthetic drug" are void for vagueness.

  • Aadil Ashfaque v. State of Indiana - This was the second 2-1 void for vagueness decision issued on Jan. 27th.

  • Marquise Lee v. State of Indiana - The Court granted transfer with opinion in this case on May 14th, holding "Defendants lacked fair notice of the charge of which they were ultimately convicted." See the May 14th ILB post.

  • David Anderson, Commissioner, Joe Wray, Commissioner, John Kennard, Commissioner, and Board of Trustees, Brown County Fire Protection District v. Susanne Gaudin, Janet Kramer, and Ruth Reichmann - This was a Jan. 12, 2015 opinion re the Brown County Commissioners' ordinance establishing a county-wide fire-protection district.

  • Billy Young v. State of Indiana - The Court granted transfer with opinion in this case on May 14th, holding "Defendants lacked fair notice of the charge of which they were ultimately convicted." See the May 14th ILB post.

  • In the Matter of J.K., A Child in Need of Services, M.K., Father v. Marion County Department of Child Services and Child Advocates, Inc. - The Court granted transfer in this case, with opinion, on May 12th. See the ILB post here, where the Court reversed the CHINS adjudiciation on the basis of the trial court's "remarks and conduct."
Also on the May 15th list, the Court's grant of the petition to dismiss in the domain name case, Serenity Springs. See this May 17th ILB post.

In two cases, transfer was denied by a 3-2 vote, with "David, J., dissents to the denial of transfer with separate opinion, in which Dickson, J., joins."

[Updated at 4:10 PM] The transfer list has been updated with the addition by the Court of one more order. See this new post for details.

Posted by Marcia Oddi on May 18, 2015 10:19 AM
Posted to Indiana Transfer Lists

Courts - Revealing who will be sitting on a federal Court of Appeals panel

This question came up when the ILB was looking for the names of the judges who would be sitting on the 7th Circuit panel hearing the same-sex marriage appeals. We didn't know until the morning of the argument, when the names appeared on the court calendar.

But not all circuits do it that way, as Zoe Tillman reported May 18th in a long story in the National Law Journal. Some quotes:

Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit prefers the element of surprise. At least for oral arguments.

The Seventh Circuit, based in Chicago, doesn't reveal the identities of the judges assigned to a case until the morning of oral arguments. Lawyers, Easterbrook said, should "prepare to face the circuit as a whole."

"Even with this policy, many lawyers try to make judge-specific arguments ('You wrote the opinion that said…') and have to be reminded that opinions speak for the court, not for their authors," the judge said in an email to The National Law Journal. "Ad hominem arguments are out of place."

The Seventh Circuit is in the minority. Of the 13 federal appeals courts, only three — the Fourth, Seventh and Federal circuits — wait to disclose the three judges assigned to a case on the day it is argued. The other circuits reveal their panels days or weeks in advance.

Posted by Marcia Oddi on May 18, 2015 09:29 AM
Posted to Courts in general | Ind. (7th Cir.) Decisions

Ind. Gov't. - "As rail shipments rise, public backlash forces costly steps to deal with noise, traffic jams"

That was the headline to a long, well-worth-reading April 30th story in the $$$ WSJ, reported by Laura Stevens. Her story focused on Savannah, Georgia. Here is a sample:

Railroads are facing a growing backlash—not just against dangerous oil trains, but against the noise, delays and traffic jams caused by rail’s rapid expansion and recent success. Rail shipments have increased by more than 6% in the past three years, but a bigger problem is that trains are getting longer, slower and—in many places—more frequent. At least one railroad now averages trains more than a mile long. And trains are federally mandated to honk at most street-level crossings for safety reasons.

Community resistance has historically been just a nuisance to railroads. The rails own their own right of way and operate under federal authority that typically supersedes local ordinances.

Lately, though, public pushback has gotten both serious and costly. It is forcing expensive improvements, interfering with expansion plans and curbing growth. In March, BNSF Railway Co. voluntarily slowed oil trains to 35 mph from 40 mph or higher near populated areas due to community safety concerns, effectively cutting capacity. Canadian National Railway Co. might be on the hook to pay $47 million for an underpass in Barrington, Ill.

Indiana has been seeing the same problems. "St. John wants trains to hold the horns please" is the headline to this NWI Times story by Phil Wieland.

Chris Meyers reported May 17th in the Fort Wayne Journal Gazette:

A new local push is underway to try to get railroad companies to take notice that local cities and towns have hit their limit when it comes to trains stopped across rail crossings.

Crossings in New Haven have been the most recent targets for violations, bringing Allen County into the fray with DeKalb County, which has a stack of pending tickets against a railroad company.

Although New Haven and Allen County police have issued tickets occasionally throughout the years in the city, the beginning of May saw a slew of violations.

Fifteen tickets were filed by the Allen County and New Haven police departments against Norfolk Southern from May 4 to 8, according to court records.

Tickets are issued when trains block crossings for more than 10 minutes, a violation of Indiana law that carries up to a $500 fine upon conviction.

“We have received some complaints, and we have been watching for these types of violations,” New Haven Police Chief Stephen Poiry said.

With the rail yard in town spreading activity over several spurs of track and affecting several streets, his officers are used to such violations.

“It’s been an issue for years,” Poiry said.

All the new tickets, though, have been transferred out of New Haven’s city court to Allen Superior Court and set for bench trial. That’s a change from the pleas that historically put an end to the case.

A similar battle is looming in DeKalb County, where a history of mutual resolutions came to an end recently when a CSX train blocked a crossing for 14 hours.

“That probably caused us to take a pretty hard stance and say maybe we should start taking these to trial,” said Erik Weber, a part-time prosecutor for DeKalb County who is handling the pending tickets.

CSX now has at least 42 pending tickets set for trial that otherwise likely might have been resolved with guilty pleas or dismissals. Forty of those were filed this year.

Posted by Marcia Oddi on May 18, 2015 09:10 AM
Posted to Indiana Government

Ind. Courts - Court of Appeals applicants to be interviewed June10th

Updating this most recent ILB post from last Thursday, the Supreme Court has this morning announced that the eight Court of Appeals candidates will be interviewed Wed., June 10th. In addition, the applications are now available for review online.

Posted by Marcia Oddi on May 18, 2015 08:58 AM
Posted to Indiana Courts

Ind. Gov't. - State of Indiana ranks at or near the bottom in public health and environment

Following on a lengthy list of earlier ILB entries on Indiana's health care crisis, Maureen Groppe of the Star Washington Bureau puts it all today in what is a lengthy, really shocking front-page Star story about the state of our State. Some quotes:

WASHINGTON – When southeastern Indiana became the face of the nation's opioid addiction epidemic, people asked, "Why Scott County?"

But the county's unprecedented HIV outbreak — the first in the nation linked to the injection of oral painkillers — revealed underlying issues in Indiana long noted by public health experts that suggest it could happen elsewhere in the state.

The addiction epidemic has hit Indiana harder than other states, and Indiana has less of a public health infrastructure to deal with the crisis. It ranks among the states with the fewest drug treatment providers and the lowest public health spending.

Other obstacles include the state's previous ban on needle exchange programs, its moratorium on methadone treatment clinics and a criminal justice approach to the problem, instead of one focused on treatment. * * *

When Mitch Daniels first campaigned for governor in 2004, he said Indiana was leaving tens of millions of dollars on the table while other states had mobilized to compete for health care grants from the federal government. During his time in office, his administration tried to rebuild relationships with the Centers for Disease Control and Prevention.

Indiana briefly moved up from last place in per-capita CDC funding in 2008 to as high as 35th in 2010. But it has been back at the bottom since 2012, according to annual rankings from Trust for America's Health in Washington.

Indiana also ranks low — 44th — in the per-capita amount of its own money spent on public health.

Beth Meyerson, co-director of the Rural Center for AIDS/STD Prevention at Indiana University, said the HIV outbreak in Scott County revealed "we're not prepared and our system is kind of broken down."

"I often say that (the Indiana State Department of Health) is fighting the good fight with two hands tied behind their backs," she said. "We really have a notion in the Midwest of 'pull yourself up by the bootstraps' and there isn't a very good communitarian notion of care." * * *

Low public health funding affects a state's ability to detect problems such as an HIV outbreak and to address them quickly, said Jeff Levi, executive director of Trust for America's Health and an HIV expert. "But some of the issues associated with this have less to do with money and more to do with policy and appropriate policy response."

He said the biggest obstacle was the state's previous ban on needle exchange programs, as well as a lack of access to substance abuse treatment. * * *

McCaffrey, the head of Mental Health America of Indiana, said many steps are needed to address the problem. But, for the first time, all the stakeholders in the criminal justice, public health and mental health communities have come together to say "we need to figure out how to provide treatment," he said.

"That has never happened before in Indiana," he said. "We have a history of just locking people up."

Still, the emergency response teams trying to figure out how to control what's happening in Indiana are realizing that substance abuse treatment in Indiana is very minimal and the system can't turn on a dime.

What is evident, health experts says, is that communities with warning signs shouldn't think that what happened in Scott County is an anomaly.

"I really don't think we're unique," said Scott County's Bridgewater. "We just happened to be first."

A second story today by reporter Groppe asks "What counties could be next for HIV outbreak?" A sample:
After the Scott County outbreak, the Centers for Disease Control and Prevention encouraged health departments across the country to identify and track both HIV and hepatitis C cases, and to also look at overdose deaths, drug arrests and drug treatment admissions.

"The situation in Indiana should serve as a warning that we cannot let down our guard against these deadly infections," said Dr. Jonathan Mermin, director of the National Center for HIV/AIDS, Viral Hepatitis, STD and TB Prevention at the CDC.

"Are state regulators hurting Hoosiers' lungs?" is the headline to another front-page Star story this morning, this one reported by Ryan Sabalow. A few quotes from the lengthy story:
Public health researchers say more than 1,000 studies have proved that breathing ozone reduces the ability of even the healthiest lungs to draw in air. Sufferers of bronchitis, emphysema, pneumonia and asthma are particularly at risk, especially the elderly and children, and especially those who live closest to pollution centers, as the Sparks family does.

But the state's top air-quality regulators, with extensive backgrounds in heavy industry, are fighting efforts to further limit ozone pollution. They say the consensus science behind the proposed regulatory changes can't be trusted. Nor, they say, should Hoosiers put much stock in the abysmal rankings that groups such as the American Lung Association give Indiana for its ozone levels.

They're pushing back against the U.S. Environmental Protection Agency's proposal to lower ozone levels and downplaying what medical researchers say is an unacceptable public health risk posed by current EPA standards.

They insist that asthma sufferers such as Damien and London won't be helped much, if at all, by the proposed new rules. Instead, they say the proposal will only kill jobs and diminish the quality of life in Indiana — maybe even for Damien and London.

"Raising the cost of living for Hoosiers without obtaining a corresponding increase in their quality of life, especially in documented health improvements, decreases the overall quality of life for the Hoosiers we are here to protect," Indiana Department of Environmental Management Commissioner Tom Easterly said in a prepared statement.

Such positions have sparked an old-fashioned jobs-vs.-regulation battle. Four public health doctors interviewed by The Indianapolis Star described the science behind Easterly's arguments as "specious" and nothing more than "mirages." One called the arguments "simplistic." Another, "misleading." One brushed it all aside as "Chamber of Commerce talking points." * * *

Indiana is consistently ranked low in air quality. The American Lung Association's 2015 State of the Air Report, released in April, gave "F" or "D" grades to 16 of the 29 Indiana counties that conduct air-quality monitoring.

The group gave "F" grades to heavily populated Lake, Marion, St. Joseph and Vanderburgh counties. Allen County received a "D."

Stephen Jay, a professor of medicine and public health at Indiana University School of Medicine, says the economic costs of ozone are profound. The EPA estimates that the new standard could save up to $38 billion in health care costs and lost productivity.

Posted by Marcia Oddi on May 18, 2015 08:27 AM
Posted to Environment | Indiana Government

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

From Sunday, May 17, 2015:

From Saturday, May 16, 2015: From Friday afternoon, May 15, 2015:

Posted by Marcia Oddi on May 18, 2015 08:16 AM
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/18/15):

  • No oral arguments currently scheduled.
Next week's oral arguments before the Supreme Court (week of 5/25/15):
  • No oral arguments currently scheduled.

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/18/15):

Monday, May 18

  • 2:00 PM - Whistle Stop Inn et al v. City of Indianapolis et al (49A02-1407-MI-519) Whistle Stop Inn, Inc. and Louise Liford d/b/a Thirsty Turtle (collectively, the appellants) appeal the trial court's denial of their motion for judgment on the pleadings as well as the trial court's grant of summary judgment in favor of the City of Indianapolis, Mayor Greg Ballard, and the Indianapolis City County Council (collectively, the City) and partial summary judgment in favor of Hoosier Park LLC. The appellants argue that certain exceptions to Indianapolis Municipal Code section 616-201, which prohibits smoking in public places, violate the Equal Privileges and Immunities Clause of the Indiana Constitution. The Scheduled Panel Members are: Judges Baker, Najam and Friedlander. [Where: Court of Appeals Courtroom (WEBCAST)]
Next week's oral arguments before the Court of Appeals (week of 5/25/15): <
  • No oral arguments currently scheduled.

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


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

Posted by Marcia Oddi on May 18, 2015 08:00 AM
Posted to Upcoming Oral Arguments

Sunday, May 17, 2015

Ind. Gov't. - A toll bridge but no toll booths - how would that work?

Dan Carden of the NWI Times explained earlier this month in a story headed "Governor grants company building East Chicago bridge access to BMV data for tolls." From the story:

INDIANAPOLIS | The private company set to rebuild the Cline Avenue Bridge in East Chicago and charge drivers tolls for crossing will get assistance from the Indiana Bureau of Motor Vehicles in collecting its revenue.

Republican Gov. Mike Pence has signed into law House Enrolled Act 1397, providing United Bridge Partners free access to BMV registration records and requiring the agency to suspend the license plates of motorists who fail to pay their bridge tolls.

Company officials explained to state lawmakers the records access and registration suspensions are needed because they plan to use open-road tolling on the bridge, similar to the Illinois Tollway, and will have no manned toll booths.

Motorists who cross the bridge without an E-ZPass or I-PASS electronic transponder in their vehicles will be mailed a bill that could not be sent or effectively enforced without the new law, they said. * * *

Construction on the $158 million bridge is expected to start in late spring and is projected to employ 300 workers over a 30-month period.

The Indiana Department of Transportation closed the 26-year-old Cline Avenue Bridge on Nov. 13, 2009, and demolished it in 2013 after inspectors determined the bridge's interior support cables were badly corroded and the bridge gravely weakened.

The state declined to rebuild the 1.2-mile bridge, claiming alternate routes on city streets were sufficient to serve the 30,000 vehicles a day that previously used the bridge to get to major region employers such as ArcelorMittal, BP Whiting Refinery, three Lake Michigan casinos and Chicago.

East Chicago and INDOT later struck a deal with United Bridge Partners to build a new, privately owned and operated bridge in place of the condemned span. The city is due to receive 10 cents from every toll.

Posted by Marcia Oddi on May 17, 2015 07:04 PM
Posted to Indiana Government

Ind. Decisions - "Domain name dispute settled"

On May 13th the ILB reported the Supreme Court's order granting the joint motion to dismiss in the domain name dispute between Serenity Springs and the LaPorte County Convention and Visitors Bureau.

On Friday, May 15th Matt Fritz wrote in the Michigan City News Dispatch:

La PORTE — For six years, the La Porte County Convention & Visitors Bureau has been in a legal battle with Serenity Springs over a website name.

In April, a settlement was finally reached, with the bureau agreeing to pay $7,500 for visitmichigancitylaporte.com.

According to a settlement and release agreement between the bureau and Serenity Springs, the former agreed to pay for the rights of the domain name while the latter would give no admission of fault, liability or wrongdoing in the case. * * *

According to court records, the issue stems back to Sept. 9, 2009, when the bureau held a public meeting announcing "Visit Michigan City La Porte" was to be the new branding identifier for the area.

A representative from Serenity Springs was allegedly in attendance, and the domain name "visitmichigancitylaporte.com" was allegedly registered by an employee of the company immediately after the announcement was made. The domain was then used to redirect traffic to the employer's website. * * *

After a cease and desist letter was sent to the business, Serenity Springs allegedly claimed it did not commit trademark infringement because it registered and began using the domain name before the bureau made any commercial use of it, and that the domain name was not protectable as a trademark because it was only descriptive and had not acquired distinctiveness.

Back in 2012, La Porte County Superior Court 4 Judge William J. Boklund issued an injunction prohibiting Serenity Springs and its president, Laura Ostergren, from using the name or trademark Visit Michigan City La Porte.

According to court records, the trial court concluded Serenity Springs had committed trademark infringement, as well as cybersquatting and cyberpiracy, and ordered the transfer of the domain name.

But this order was later reversed by the majority opinion of the Indiana Court of Appeals on July 16, 2014, which stated the bureau only intended to use the phrase before Serenity Springs acquired it, so it was not a protected trade name and this was not unfair competition.

The bureau then filed a petition to transfer jurisdiction to the Indiana Supreme Court, but before the court could rule on the petition, the parties filed a joint motion to dismiss the appeal, meaning they had reached a settlement agreement.

This also dismissed the ruling of the last appeal.

The Indiana Supreme Court moved to grant the joint motion for dismissal May 12.

Posted by Marcia Oddi on May 17, 2015 06:57 PM
Posted to Indiana Decisions

Saturday, May 16, 2015

Ind. Courts - "Attorney Ken Nunn, former associate exchange lawsuits"

Laura Lane of the $$$ Bloominton Herald-Times reported this weekend on a dispute involving Bloomington attorney Ken Nunn and an attorney formerly with his firm. From the story:

Lawyers, accusations and money.

They are at the heart of lawsuits filed recently in Monroe Circuit Court in a dispute between high-profile personal injury lawyer Ken Nunn and attorney Jeffrey Jon Shaw, who until January had worked for Nunn.

Shaw says Nunn fired him without cause, stole his clients and refused to pay him. He accuses his former boss of slander, saying he made false statements to clients that damaged his reputation. “He knew such statements were false or reckless without knowledge of its truth or falsity,” Shaw’s lawsuit states.

Nunn, who started his practice in Bloomington in 1967, counters that Shaw’s allegations are untrue, the words of a disgruntled employee.

“Mr. Shaw has left out important facts and has left out important law in his untrue accusations,” Nunn wrote in a statement in response to Shaw’s lawsuit against him, which was filed on Wednesday. “I have done nothing wrong. My law office has done nothing wrong. I am offended that these untrue allegations have been made against me.”

The two former colleagues now will argue it out in court before Judge Frances Hill.

In March, Nunn and the Ken Nunn Law Office filed a court action asking that any money awarded from the settlement of a case the Nunn law firm took on, and that was assigned to Shaw, be held by the county clerk’s office until the lawyers reached an agreement about how the money would be divided.

The case involves Michael Bean’s claim for damages from an injury resulting from a March 13, 2013, fall in the parking lot at Wal-Mart in Bloomington. A week after the fall, Bean signed a fee agreement with the Ken Nunn Law Office stating he would pay his attorney one-third of any amount recovered in the case, plus the cost of expenses from evidence gathering.

Nunn’s firm filed a lawsuit on Bean’s behalf, seeking compensation for his injuries, on May 8, 2013. A jury trial to decide the matter is scheduled for January 2016.

Nunn fired Shaw Jan. 21. After that, Bean decided to keep Shaw as his lawyer. So Nunn filed his March lawsuit in order to protect his financial interests, claiming his firm is owed $9,705.45 in out-of-pocket expenses incurred before Shaw was terminated. Nunn also claims that under Indiana law, his firm is entitled to half of any future settlement or jury award from the case. * * *

Nunn’s firm employs about a dozen lawyers and another 60 staff members to help process the caseload. In 2011, the Ken Nunn Law Office reported having about 3,000 active cases. Nunn is high-profile, his face and phone number visible on billboards, buses and television ads.

In his lawsuit against Nunn, Shaw, hired by the firm in June 2012, said he was handling 80 to 90 personal injury cases when he was terminated “without warning or consultation.” He said he was the law firm’s top money-making attorney in 2014, bringing in more than $2.7 million. His lawsuit states that during his time at the Ken Nunn Law Office, he made about $4.5 million for the firm.

This appears to be the lawsuit, via MyCase - Ken Nunn, Ken Nunn Law Office vs. Jeffrey Jon Shaw, Michael Bean, Wal-mart Stores East, LPet al, 53C06-1503-CT-000536 and 53C06-1503-CT-000537.

Posted by Marcia Oddi on May 16, 2015 07:12 PM
Posted to Indiana Courts

Friday, May 15, 2015

Ind. Decisions - Tax Court posts one, filed May 14th

[ILB: This opinion has been password protected by the Court. It cannot be cut and pasted from and it cannot be OCRed.]

In Lee and Sally Peters v. Lisa Garoffolo, Boone County Assessor, and the Indiana Board of Tax Review, an 11-page opinion with pro se petitioners, Sr. Judge Fisher writes:

ILB: See the opinion, the Court upholds the Tax Board; the pro se petitioners fail on procedural grounds.

[Updated May 19] The Tax Court has now posted a useable version of its opinion, in place of the earlier locked version. The filing date remains the same.

Posted by Marcia Oddi on May 15, 2015 05:33 PM
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - More on: Supreme Court issues order to study the Tax Court

On April 20th the Supreme Court issued an order creating an ad hoc advisory task force to study resources and caseload of the Indiana Tax Court. The ILB noted at the time:

It is interesting that the 7-member task force will include two people from the AG's office and one from the Dept. of Revenue, two judges, and two private attorneys.
Today the Supreme Court has posted an order (filed May 13th) amending the earlier document, stating:
... on May 6, 2015, the Governor signed Senate Enrolled Act 423 (SEA 423), calling for the Indiana Judicial Center to review the workload and backlog of cases in the Indiana Tax Court and submit a report to the Indiana Legislative Council by December 1, 2016. To integrate SEA 423 with this Court’s charge, we find that the April 20 Order should be AMENDED
The newly created 9-member task force will include:
  • one person from the AG's office - Matt Light
  • one person from the IDOR - Asheesh Agarwal
  • two judges - James S. Kirsch, Indiana Court of Appeals, and Robert R. Altice, Marion Superior Court
  • five attorneys:
    • Mark E. GiaQuinta, Haller & Colvin P.C.
    • Dustin D. Huddleston, Huddleston & Huddleston
    • Randal J. Kaltenmark, Barnes & Thornburg LLP
    • Kathryn A. Lodato, Eli Lilly and Company
    • David A. Suess, Faegre Baker Daniels LLP
This appears to be a much better grouping. Judge Kirsch is to serve as chair. "Judge Martha B. Wentworth of the Indiana Tax Court will serve as ex officio liaison from the Tax Court to the Committee and attend meetings by invitation of the Chair."

The amended order provides that:

The Task Force shall provide a written report to this Court not later than May 1, 2016, and provide copies of its report to the Indiana Judicial Center and Indiana Legislative Council.
The earlier order required a report only to the Court.

There is no mention of public meetings or other access.

Background: On Sept. 14, 2014, the ILB had a lengthy post on the Tax Court backlog, headed "Ind. Courts - A look at the Indiana Tax Court." An update followed on Nov. 18, 2014.

Posted by Marcia Oddi on May 15, 2015 02:24 PM
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 6 NFP memorandum decisions)

For publication opinions today (3):

In Fight Against Brownsburg Annexation, et al. v. Town of Brownsburg, Indiana, et al., a 26-page opinion, Judge Najam concludes:

The trial court had subject matter jurisdiction to determine the sufficiency of FABA’s remonstrance petition under Indiana Code Section 36-4-3-11. We hold that a Trial Rule 12(B)(1) motion is not a proper vehicle for challenging the sufficiency of a remonstrance petition under Section 36-4-3-11, and the trial court erred when it dismissed FABA’s petition for lack of subject matter jurisdiction. The remonstrance petition is sufficient on its face, and we reverse and remand for a hearing on the merits. On remand, should Brownsburg challenge the validity of the signatures in support of FABA’s petition at the merits hearing, we hold that: (1) any otherwise valid signatures of owners obtained prior to publication of the annexation ordinance are to be counted; and (2) only one owner need have signed on behalf of each parcel.[15] Finally, FABA’s remonstrance petition is not moot. Reversed and remanded for further proceedings.
_____________________
[15] We note that the General Assembly has passed new legislation, effective July 1, 2015, that overhauls the annexation process in Indiana. See S.B. 330, 119th Gen. Assemb., Reg. Sess. (Ind. 2015). The most significant change is that, under a new statute, Indiana Code Section 36-4-3-11.3, an annexation ordinance is void if a remonstrance petition is signed by at least 65% of owners of land in the annexed territory or by the owners of at least 80% in assessed valuation of the land in the annexed territory. Another new statute, Indiana Code Section 36-4-3-11.1(c), provides that, after a proposed annexation ordinance is published, the municipality must “give notice of the applicability of the remonstrance process” to affected landowners. And Indiana Code Section 36-4-3-11.2(c)(1) provides that signatures in support of a remonstrance petition must be dated, and they must be dated no earlier than the date of the notice provided under Section 11.1. Finally, the new statute provides that “[o]nly one (1) person having an interest in each single property as evidenced by the tax duplicate is considered an owner of property and may sign a remonstrance petition.” I.C. § 36-4-3-11.2(e)(2).
In Carlton Hart v. State of Indiana, a 12-page opinion, Judge Pyle writes:
Carlton Hart (“Hart”) appeals his convictions, after a jury trial, for murder, Class B felony criminal confinement, and Class B felony conspiracy to commit criminal confinement. On appeal, Hart argues that the evidence was insufficient to support his convictions as an accomplice and that the trial court erroneously allowed the State to redact details of a peace treaty he brokered between rival rap groups from his statements to police. Concluding that the evidence supported Hart’s convictions as an accomplice and that the trial court did not err in excluding the details of the peace treaty, we affirm Hart’s convictions.
In Dewayne M. Townsend v. State of Indiana, a 12-page opinion, Sr. Judge Sharpnack writes:
Dewayne M. Townsend appeals from his conviction of one count of residential entry as a Class D felony, challenging the admission of a witness’s prior consistent statements and the sufficiency of the evidence. We affirm.
NFP civil decisions today (2):

In the Matter of the Termination of the Parent-Child Relationship of: R.J.J., T.J., and R.L.J. (Minor Children) and R.A. (Father) v. The Indiana Department of Child Services (mem. dec.)

In Re: The Estate of Margaret S. Jones: John A. Jones, Jr. v. Joyce E. Schaefer and Suzanne D. VanGombos, Alexandra Margaret Windle, Sean Frances Windle, Charlene J. Windle (mem. dec.)

NFP criminal decisions today (4):

Scott Wolf v. State of Indiana (mem. dec.)

Christian Ricker v. State of Indiana (mem. dec.)

Terry W. Waugh, Jr. v. State of Indiana (mem. dec.)

James Miske, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 15, 2015 10:37 AM
Posted to Ind. App.Ct. Decisions

Thursday, May 14, 2015

Courts - "The Management of Staff by Federal Court of Appeals Judges"

This is an interesting working paper by G. Mitu Gulati, Duke University School of Law, and Judge Richard A. Posner. The abstract:

Federal court of appeals judges have staffs consisting usually of a secretary and four law clerks; some judges have interns or externs or both (law students working part time). These staffs are essential, given judicial workloads and judges’ limitations. Yet not much is known about how the judges manage their staffs. Each judge knows of course, but judges rarely exchange information about staff management. Nor is there, to our knowledge, a literature that explains and evaluates the varieties of staff management by federal court of appeals judges. This article aims to fill that gap. It is based on interviews, some in person, most by telephone, of more than 70 judges, chosen mainly at random and covering almost all of the thirteen federal courts of appeals.
It, inter alia, discusses different styles of opinion writing: the editing judge, the authoring judge, the delegating judge, etc.

It would be useful if there was something equivalent on staffing the offices of the federal trial court judges.

Posted by Marcia Oddi on May 14, 2015 03:45 PM
Posted to Courts in general

Ind. Decisions - Supreme Court decides two today

In Billy Young v. State of Indiana and Marquise Lee v. State of Indiana, via a 12-page, 5-0 opinion*, Chief Justice Rush writes:

Defendants have a Due Process right to fair notice of the charge or charges against them, and they are entitled to limit their defense to those matters. The “inherent” and “factual” inclusion tests we established in Wright v. State, 658 N.E.2d 563, 566–67 (Ind. 1995), are a necessary part of deter-mining whether a defendant has fair notice of a lesser included offense—and in the context the question most commonly arises, no further analysis beyond Wright is necessary. But as the unusual facts of these cases illustrate, the ultimate question of fair notice can be broader than the particular issues Wright’s tests address.

And here, fair notice was lacking. Defendants were charged with murder as accomplices in a shooting. At their bench trial, the court found that they intended a group beating of the victim, but that there was insufficient evidence that they knew a member of their group would shoot him. The trial court thus dismissed the murder charge, but convicted Defendants instead of attempted aggravated battery for planning the beating.

Under these circumstances, however, attempted aggravated battery by beating was not just a lesser offense than the charged murder by shooting—it was a completely different offense, based on a completely different “means used” than alleged in the charging informations. This deprived Defendants of fair notice to extend their defense to that very different lesser charge and constituted fundamental error. We therefore grant transfer in both cases by separate orders and reverse both Defendants’ convictions. * * *

Defendants must have “fair notice” of the charges of which they may be convicted, including inherently or factually included lesser offenses. But under the unusual operative and procedural facts of this case—the actual shooter remaining unidentified, the resulting ambiguity as to whether these Defendants intended to carry out a shooting, the State’s choice to rely on the shooting alone in the charging instruments and at trial, and the trial court’s unambiguous finding of reasonable doubt on that particular theory—we hold Defendants lacked fair notice of the charge of which they were ultimately convicted, which under these circumstances establishes fundamental error. We therefore grant transfer, reverse both Defendants’ convictions, and remand to the trial court with instructions to enter judgments of acquittal in both cases.
__________
* "This opinion addresses both cases but without formally consolidating them as Indiana Appellate Rule 38(B) would permit."

Posted by Marcia Oddi on May 14, 2015 02:46 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court denied transfer in NFP marital distribution case [Updated]

Hay v. Hay is a Sept. 11, 2014 NFP COA opinion.

Today the Supreme Court has posted the individual order denying transfer, which had been filed May 11th.

The Court has not posted these individual orders in the past where transfer has not already been granted or an oral argument held, they are simply published on the transfer list each week. This may be a new policy, or the order may have been publicly posted and announced in error...

[Updated on May 18] It turns out there was a dissent to the denial of transfer with separate opinion, by J. David, in which J. Rucker joined. It concluded:

I agree with Judge Crone that the trial court acted within its discretion when it concluded that Carder was in contempt for paying Hay what amounted to one half of the monthly pension benefit as of the parties’ separation date, or $559 per month. Hay v. Hay, Case No. 11A01-1401- DR-22, Slip. op. at *20 (Ind Ct. App. Sept. 11, 2014) (Crone, J., dissenting). Accordingly, I would grant transfer and affirm the trial court’s determination that the Order requires Carder to pay one half of the total monthly amount received from the pension to Hay (after deducting her tax consequences on Hay’s payment).

Posted by Marcia Oddi on May 14, 2015 01:58 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on "Supreme Court slams judge for derogatory remarks"

Reporting on the May 12th Supreme Court decision in In the Matter of J.K. (ILB summary here), Marisa Kwiatkowski of the Indianapolis Star has this news story yesterday.

Today Tim Swarens, also of the Star, has a column headed "Judge was right about 'knuckle-headed' parents." Some quotes:

She's blunt. In your face. With Marilyn Moores, there's usually no doubt about the meaning of her words, or the passion with which they're said.

And I'm fine with that. In fact, I'm great with it.

Because, one, it's obvious that Moores cares — deeply, passionately cares — about children.

Because, two, as Marion County's Juvenile Court judge, she sees thousands of children every year who've been horribly damaged — often at the hands of people who are supposed to love and protect them.

Because, three, Moores' bluntness is almost always in service of a child who desperately needs someone who is an in-your-face, no-doubt-about-what-she-means advocate for kids in distress.

Still, Moores' sharp-edged language and pushiness got her in trouble this week — with no less than the Indiana Supreme Court.

The court ruled that, two years ago, Moores coerced a father in a case involving the custody of his 17-year-old daughter. On strictly legal grounds, the court is probably right.

But on a human, what's best for the child level, I'm sticking by Moores.

After describing the facts of the case in detail, Swarens concludes:
The state's highest court dinged Moores for pushing too hard for the father to waive his rights. Again, the court was probably right. It's also clear, however, that Moores was trying to serve the child's best interests.

Which is exactly what we want juvenile court judges to do.

Yes, a judge is supposed to set the proper tone inside a courtroom, and name-calling isn't behavior we'd normally expect from the bench.

But there's nothing normal about the depravity that presents itself before Moores every day.

In that world, knuckleheads sometimes need to be told that they're knuckleheads.

And Marilyn Moores is the right person for that job.

Another interesting aspect of the decision is that the writing hudge, Chief Justice Rush, was for many years herself a juvenile court judge, in Tippecanoe County.

Posted by Marcia Oddi on May 14, 2015 01:04 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 3 NFP memorandum decisions) [UPDATED]

For publication opinions today (0):

NFP civil decisions today (2):

In the Matter of the Termination of the Parent-Child Relationship of: D.B.S. (Minor Child), and Q. S. (Father) and D.S. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

In Re the Marriage of: Leann Palmer (Lawrence) v. Jeffrey Palmer (mem. dec.), a 2-1 opinion by Judge Baker, may cause some to ask "Why is this NFP?" The 13-page opinion includes a 3-page "dissent in part" from J.Brown with an interesting/important discussion of the impact of a trial court citing an outdated legal standard.

NFP criminal decisions today (1):

Timothy Lee Hyser v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 14, 2015 10:23 AM
Posted to Ind. App.Ct. Decisions | Why is this NFP?

Ind. Gov't. - "Tribe chairman says new Indiana law violates U.S. law"

That is the headline to this long AP story published May 14th in the South Bend Tribune. Some quotes:

SOUTH BEND — The chairman for the Pokagon Band of Potawatomi Indians who are seeking to build a casino in South Bend said Wednesday a new law approved by the General Assembly prevents Gov. Mike Pence from negotiating in good faith with the tribe on a compact, voiding the need for such an agreement.

Tribal Chairman John Warren said the law specifying the process for the state to enter into a compact violates the Indian Gaming Regulatory Act because it includes stipulations on what the compact must include.

"They just passed legislation that tied the governor's hands in negotiating with us in good faith and everything they had in their bill is against federal law. So we don't have to negotiate with them to open," he said. * * *

The tribe's proposal to build a tribal village, casino, 500-room hotel and medical facility is under review by the federal Bureau of Indian Affairs. The tribe already runs three casinos in Michigan.

A long May 1st Tribune story, by Jeff Parrott, begins:

As the Indiana General Assembly wrapped up its 2015 session Wednesday, it took two parting shots at the Pokagon Band's plans to build a casino in South Bend.

Tacked on to a gambling bill that would allow riverboat casinos to be land-based, and let an Anderson horse track add casino gambling, was a last-minute amendment requiring any gaming compact the governor reaches with an Indian tribe also to require approval by the Legislature.

The House and Senate also passed a joint resolution, on voice vote, asking Congress to change federal law to prohibit Indian tribes from opening casinos in the state. South Bend's delegation opposed the language.

"It's federal law that the governor can negotiate it," said state Rep. B. Patrick Bauer, D-South Bend. "To have the General Assembly hold hearings on it is just delaying the process. Obviously there are gaming interests that don't want the competition."

The bill, HEA 1540, became law without the Governor's signature.

Posted by Marcia Oddi on May 14, 2015 09:46 AM
Posted to Indiana Government

Ind. Decisions - After oral argument, Court denied transfer in medical malpractice case [Updated]

On March 11th the Supreme Court heard oral argument in the case of Giles v. Anonymous Physician. You can watch the argument here. Today the Court has posted this order, filed May 12th:

The Court has reviewed the decision of the Court of Appeals, and the submitted record on appeal, all briefs filed in the Court of Appeals, and all materials filed in connection with the request to transfer jurisdiction have been made available to the Court for review. The Court also has heard oral argument on the transfer petition. * * *

Being duly advised, the Court DENIES the petition to transfer jurisdiction, and the Clerk is directed to certify the Court of Appeals decision as final.

[Updated 5/15/15] It turns out there is more, the vote to deny was 3-2, with a published dissent:
Rush, C.J., and Rucker and Massa, JJ., concur.
David, J., dissents to the denial of transfer with separate opinion, in which Dickson, J., joins.

I respectfully dissent from the denial of transfer because fact issues remain as to the existence of a physician-patient relationship between the on-call hospitalist and Ruth Giles. * * *

In this summary judgment proceeding, where the facts are construed in a light most favorable to Giles as the non-moving party, I cannot unequivocally say that there are no genuine issues of material fact that the hospitalist did not see Giles or participate in her care, if only to consult with her and move her care forward.

Because summary judgment is appropriate only where the designated evidence shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” Indiana Trial Rule 56(C), and because fact issues remain as to the existence of a physician-patient relationship between the on-call hospitalist and Giles, I respectfully dissent from the denial of transfer in this case.

Posted by Marcia Oddi on May 14, 2015 09:32 AM
Posted to Ind. Sup.Ct. Decisions