Friday, June 24, 2016
Ind. Decisions - 7th Circuit decides one Indiana case today
In John Otrompke v. Bradley Skolnik, State Bd. Law Examiners (ND Ind., Miller), a 3-page opinion, Judge Posner concludes:
Otrompke’s baleful Illinois experience makes it imperative that he apply to the Indiana bar authorities for admission before challenging the legality of the state’s rules for admission. At present he has no standing to maintain a suit such as this because he can’t show harm. The judgment of the district court is therefore AFFIRMED.
Ind. Law - "Porter County complies with DUI warrants"
Porter County officials said a U.S. Supreme Court ruling that requires police to get a search warrant before taking blood from drivers suspected of drunken driving will have no impact here because they do that anyway.
The ruling, issued Thursday, said police must get warrants for the blood alcohol tests, but not breath tests, because the court considers those less intrusive.
"I always thought you needed a court order" for a blood test, said Porter County Sheriff David Reynolds. "We can take a breath test. That hasn't changed."
The Supreme Court upheld warrantless breath tests for people suspected of driving while intoxicated, Porter County Prosecutor Brian Gensel said in an email.
"Under current Indiana statutes, a police officer 'shall' offer a chemical test to anyone involved in a serious injury or death accident. If exigent circumstances exist, a blood test can be done involuntarily," he said. "Those are rare. Almost always, police get a search warrant for the blood test."
Drivers in all 50 states can have their licenses revoked for refusing drunken driving tests. The court's ruling affects laws in 11 states, including Indiana, which impose additional penalties for such refusals.
While the other states have additional criminal penalties for refusing a chemical test, Gensel said, Indiana does not, but does impose additional license suspensions through the Bureau of Motor Vehicles.
Ind. Decisions - Tax Court posts one ruling today, filed late yesterday
In RDM Sales and Service, Inc. v. Indiana Department of State Revenue, a 20-page opinion, Judge Wentworth writes:
RDM Sales and Service, Inc. has appealed the Indiana Department of State Revenue’s assessments of Indiana sales tax, interest, and penalties for the 2006, 2007, and 2008 tax years (“years at issue”). The matter is currently before the Court on the Department’s motion for summary judgment in which it claims that all of RDM’s vending machine sales and cafeteria sales are subject to sales tax and negligence penalties. The Department’s motion is granted in part and denied in part. * * *
For the above-stated reasons, the Court GRANTS summary judgment in favor of the Department and against RDM as to 1) the imposition of sales tax on bottled water and fruit juice sold from vending machines; 2) the imposition of sales tax on heated food and food for immediate consumption that RDM sold in its two cafeterias; and 3) the propriety of the penalties imposed against RDM. The Court GRANTS summary judgment in favor of RDM and against the Department, however, as to the imposition of sales tax on bottled water and fruit juice dispensed from vending machines free of charge or at a discounted rate to exempt customers. The Court also finds there are genuine issues of material fact that cannot be resolved on summary judgment regarding 1) whether and by whom eating utensils were provided with the sale of bakery items; and 2) whether RDM sold two or more food ingredients as a single item that it merely cut, repackaged, or pasteurized, or whether it sold raw animal foods that required cooking by the consumer to prevent food borne illness. Accordingly, the Court will direct the parties regarding the issues remaining for trial under separate cover.
Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 9 NFP memorandum decision(s))
For publication opinions today (0):
NFP civil decisions today (2):
NFP criminal decisions today (7):
Ind. Gov't. - "Panel looks at progress of criminal justice system overhaul"
... group of experts from Indiana's judicial and legal system know they have their work cut out for them as they try to change the nature of the state's criminal justice system.
On Tuesday, those experts from all over the state came to Indianapolis to see how their pilot counties are progressing with a new evidence-based approach to punishment and incarceration as well as mull what the state's goals should be moving forward. * * *
The point of the evidence-based system, David said, is realizing one size doesn't fit all when it comes to criminal justice and lots of ideas on how to make that idea work in Indiana were tossed around. Citations for minor offenses instead of arrests, no bail for low-risk offenders and more pretrial diversion options were some of many things the group looked at on Tuesday.
Courts - "Crown Point native hears first cases at Supreme Court"
Dan Carden reports in the NWI Times about yesterday's oral arguments before the Indiana Supreme Court. Some quotes:
Justice Geoffrey Slaughter ... took his seat Thursday on the five-member high court for the first oral arguments since being sworn-in June 13 as Indiana's 109th justice.
The Crown Point native, who successfully argued a case to the Supreme Court as an attorney just three months ago, waited less than three minutes before exercising his judicial prerogative to interrupt and question Noblesville attorney Eric Benner.
Slaughter asked Benner to clarify whether his client was supposed to provide certain documents in a divorce proceeding, as Benner initially claimed, or merely make them available for inspection.
Benner conceded the latter actually was the trial court's order before continuing with his argument. * * *
Slaughter's questions to attorneys in the three cases tended to focus on clarifying specific, narrow points of law and legal procedure.
He was not confrontational.
Though at one point Justice Mark Massa seemed to help an attorney who appeared to be struggling to answer a Slaughter query about whether a court issuing a protective order is the same as an injunction, or just similar in nature to injunctive relief.
It's not known whether Slaughter will write the court's decision for any of the three cases heard Thursday, or even whether there will be opinions to write, since the high court has not yet agreed to transfer jurisdiction from the Court of Appeals in any of them.
Those decisions, like most of the case-reviewing and opinion-writing work of Indiana's Supreme Court justices, are made behind closed doors.
Oral arguments are the most public part of the appellate judicial process, but not necessarily the most important, several former high court justices have said.
Thursday, June 23, 2016
Ind. Decisions - "Judge dismisses battery case, calls prosecutor's office 'negligent'"
That is the headline to Rebecca S. Green's long June 21st story in the Fort Wayne Journal Gazette. A few quotes:
Allen Superior Court Judge Fran Gull dismissed a felony battery case Tuesday after finding that the Allen County Prosecutor's Office acted with gross negligence. * * *
The Public Defenders Office assigned Michelle Kraus to represent him, and the case was scheduled to go to trial Tuesday morning.
But it never got that far. Before the jury got to hear it, Gull granted Kraus' motion to dismiss the case, citing ongoing issues with getting necessary information from the prosecutor's office while the case was being readied for trial.
Specifically, Kraus had been asking for more than two months about the potential of a video from the in-car police camera that might have shown what happened during the arrest. After being told repeatedly there was no video, the information changed late last week. But it was not until mid-morning Monday, Kraus finally obtained a working copy of the video.
It was not the first time Kraus alleged difficulties in obtaining discovery materials from the state of Indiana, via the office of Allen County Prosecutor Karen Richards.
Prosecutors are required to give the defense attorneys access to all the information they have in connection to a criminal case in a process called "discovery."
According to court documents, prosecutors were late or failed to turn over key pieces of information to her in three prior cases, all involving murder charges. * * *
In her handwritten order, Gull lambasted prosecutors for their conduct, and noted the presence of Richards, Chief Deputy Prosecutor Michael McAlexander for the hearing.
"Court finds the state grossly negligent in the performance of its duties by way of a pattern of discovery violations and grants the motion to dismiss," she wrote.
Richards said in an interview Tuesday afternoon that the problem in this case was one of technology.
"We missed one," she admitted. The problem, she said, is that there is now so much digital material compiled as part of a case, that the prosecutor's office might not even be aware of what all they have, or what is available to them.
There is no one place in the computer system where all the information, or a list of all the information is kept, she said.
"I don't think the court really understands how difficult technology has made finding things for discovery purposes," Richards said. "I don't think it's anywhere close to negligence on our part."
There was already a discussion with Fort Wayne Police command staff Tuesday to try to stave off similar problems in the future, Richards said.
Kraus said if the situation has become so complex, then make it simple.
"Pick up a phone and ask a question. 'Is there an in-car video?'," she said. "It was a simple question that needed to be asked, after I asked the question in March."
Ind. Decisions - 7th Circuit decides one Indiana case today, reversing Conour Firm funds distribution decision
In AFC 2006 Corp., v. Mark C. Ladendorf, Attorney At Law, P.C., And Timothy F. Devereux (SD Ind., Pratt), a 12-page opinion, Judge Easterbrook writes:
Attorney William F. Conour stole more than $4.5 million from clients’ trust funds, was convicted of fraud, and is serving ten years in prison. Shortly before these crimes came to light, attorney Timothy Deve reux left Conour Law Firm, LLC, and took 21 clients with him to Mark Ladendorf’s law firm. These clients ultimately produced attorneys’ fees aggregating some $2 million. This appeal presents a three-corner fight about who gets how much of that money. The contestants are Devereux and the Ladendorf Firm (collectively the Lawyers), several persons from whom Conour stole (collectively the Victims), and ACF 2006 (the Lender), whose parent corporation Advocate Capi tal, Inc., made a loan to the Conour Firm to finance the legal work and out-‐‑of-‐‑pocket expenses that a contingent-fee law firm must bear while suits are in progress.
There are two principal questions. First, how much of the $2 million goes to the Conour Firm for the services it per formed before Devereux left? Second, how are the funds to which the Conour Firm is entitled to be divided between the Victims and the Lender? * * *
The norm that victims of a lawyer’s breach of trust have a remedy notwithstanding the later grant of a security interest to a commercial lender is one of long standing and is reflect-‐‑ ed in Indiana by §30-4-3-22(c)(2). Section 23-1.5-2-7 tells us that the use of the corporate form to hold assets of a legal practice does not change that norm. It follows that the Victims have priority over the Lender in the funds that the Conour Firm is entitled to receive from the Lawyers.
The judgment of the district court is reversed, and the case is remanded for the entry of judgment consistent with this opinion.
Courts - "SCOTUS limits Indiana DUI tests" [Revised]
WASHINGTON - The Supreme Court on Thursday placed new limits on laws in Indiana and several other states that make it a crime for motorists suspected of drunken driving to refuse alcohol tests.[Revised at 3:03 pm] The Indianapolis Star, which published the AP story, has now appended this note to the beginning of the story:
The justices ruled that police must obtain a search warrant before requiring drivers to take blood alcohol tests, but not breath tests, which the court considers less intrusive.
The ruling came in three cases in which drivers challenged so-called implied consent laws in Minnesota and North Dakota as violating the Constitution’s ban on unreasonable searches and seizures. State supreme courts in each state had upheld the laws.
Drivers in all 50 states can have their licenses revoked for refusing drunken driving tests. The court’s ruling affects laws in eleven states that impose additional criminal penalties for such refusals. * * *
Other states that criminalize a driver’s refusal to take alcohol blood or breath tests include Indiana, Alaska, Florida, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia.
Editor's Note: An earlier version of this story incorrectly stated that Indiana motorists face criminal penalties if they refuse a blood test when under suspicion of drinking and driving. In addition, police and prosecutors in Indiana say authorities already secure a search warrant if a driver refuses to consent to a blood draw, meaning this ruling will not likely impact Indiana.Plus the Star has revised the original content of the story with respect to Indiana to read:
Other states that criminalize a driver’s refusal to take alcohol blood or breath tests include Alaska, Florida, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia, according to the Associated Press. In Indiana, a driver who refuses faces suspension of driving privileges, which is considered a civil penalty, said Chris Daniels, Traffic Safety Resource Prosecutor for the Indiana Prosecuting Attorneys Council.
Daniels also noted that police in Indiana have secured search warrants for blood draws since 2013, when another U.S. Supreme Court ruling addressed the issue.
"So in Indiana, this is not going to change how we do things at all," Daniels said.
Ind. Decisions - "7th Circuit decision favors women's health group over Citilink"
Yesterday's 7th Circuit opinion in Women's Health Link, Incorp. v. Fort Wayne Public Transportation (ILB summary here) is the subject of this story today by Rebecca S. Green in the Fort Wayne Journal Gazette. Some quotes:
An advertisement by a local woman's health group opposed to abortion rights can be displayed inside Fort Wayne's Citilink buses.
That is according to a ruling Wednesday by the U.S. Seventh Circuit Court of Appeals. The ruling overturns a January order by U.S. District Judge Robert L. Miller that found Citilink was within its rights to prohibit a series of advertisements that Fort Wayne Women's Health Link wanted to put on the city's buses.
"(Citilink's) refusal to allow Health Link's ad to be displayed is an unjustifiable, because arbitrary and discriminatory, restriction of free speech," wrote Judge Richard Posner in the opinion.
Filed two years ago by the Alliance Defending Freedom on behalf of Women's Health Link, the lawsuit accused the Fort Wayne Public Transportation Corporation of violating the constitutional rights of the organization by denying it permission to buy a series of small ads to run inside the buses. * * *
Citilink's policy allows public service announcements, but it can reject an ad if it contains false or misleading information or if it "advocates opinions or positions on political, religious, or moral issues," according to court documents.
The woman who submitted the advertisement on behalf of Women's Health Link was on the organization's board of directors and also was communications manager for Allen County Right to Life, according to court documents.
Women's Health Link and Allen County Right to Life share email addresses and a physical address.
According to its official website, "Women's Health Link is a free referral resource in Fort Wayne, Indiana, for women seeking physical, emotional, spiritual or mental health care."
Posner wrote that while it is now known Women's Health Link is pro-life, that is not revealed in the ad, and nothing in Citilink's policies "suggest a concern about what may lie behind an innocuous ad."
The higher court noted that the United Way is permitted to advertise, as are other organizations that urge vaccinations, health care, voting, and other issues.
"What is important is not what other advertisers are permitted to do but that Citilink's ad censorship policy is limited to ad content," Posner wrote. "The content of Health Link's proposed ad lacks the faintest suggestion of a political, religious, or moral aim or agenda." * * *
"Citilink's refusal to post the ad was groundless discrimination against constitutionally protected speech," Posner wrote.
It was unclear Wednesday evening if city attorneys intended to appeal the Seventh Circuit ruling to the U.S. Supreme Court.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 13 NFP memorandum decision(s))
For publication opinions today (2):
In Duane Harmon v. Gary Fisher , a 10-page opinion, Sr. Judge Garrard writes:
Duane Harmon appeals from the trial court’s judgment in a small claims action brought by him alleging false representation made on a real estate sales disclosure form about the condition of certain real estate sold to him by Gary Fisher. Finding that the judgment is not clearly erroneous, we affirm. * * *In Trondo L. Humphrey v. State of Indiana , an 18-page opinion, Judge May writes:
Here, the record reflects that Fisher had never lived in the house and held the reasonable belief that the house was on the city sewer system. He was not in possession of knowledge, which Harmon did not possess, such that he enjoyed a position of superiority over him. Indeed, the record reflects that both Harmon and Fisher were surprised to learn that the property located in the middle of the community was connected to a septic system. Thus, the record fails to disclose the necessary element of duty owed to Harmon. Consequently, Harmon’s claim, even if adequately preserved, fails.
Trondo L. Humphrey appeals the denial of his petition for post-conviction relief. As his trial counsel’s assistance was ineffective and his petition is not barred by laches, we reverse and remand. * * *NFP civil decisions today (5):
Humphrey did not seek post-conviction relief until fifteen years after his direct appeal was decided. The post-conviction court determined his petition was not barred by laches, and that was not clearly erroneous. * * *
[T]he post-conviction court, after having considered the State’s arguments and evidence, concluded the State had not met its burden to demonstrate prejudice as a result of Humphrey’s delay. We cannot say that judgment is clearly erroneous. See Armstrong, 747 N.E.2d at 1120 (for laches to apply, the State must prove both unreasonable delay and prejudice from the delay). As we cannot find clear error, Humphrey’s petition for post-conviction relief is not barred by laches. * * *
Humphrey’s counsel was deficient for not asking that the jury be correctly instructed that Brooks’ unsworn statement could be considered only for impeachment, for not objecting to the trial court’s incorrect instruction, for not tendering a correct instruction, and for erroneously telling the jury in closing argument that the statement could be used in deciding whether Humphrey was guilty. * * *
As Humphrey’s counsel’s performance was deficient and the deficiencies prejudiced Humphrey, we reverse the denial of Humphrey’s petition for post-conviction relief and remand for a new trial.
NFP criminal decisions today (8):
Courts - SCOTUS announces major rulings today
One is a 4-4 opinion, as the Reuters headline indicates: Supreme Court, split 4-4, blocks Obama immigration plan." The story begins:
The U.S. Supreme Court on Thursday dealt President Barack Obama a harsh defeat, splitting 4-4 over his plan to spare millions of immigrants in the country illegally from deportation and give them work permits, leaving intact a lower-court ruling blocking the plan.The opinion is U.S. v. Texas. Here is the one-line ruling.
Sam Hananel of the AP reports on the third major opinion:
The Supreme Court on Thursday placed new limits on state laws that make it a crime for motorists suspected of drunken driving to refuse alcohol tests.The opinion is Birchfield v North Dakota.
The justices ruled that police must obtain a search warrant before requiring drivers to take blood alcohol tests, but not breath tests, which the court considers less intrusive.
The ruling came in three cases in which drivers challenged so-called implied consent laws in Minnesota and North Dakota as violating the Constitution's ban on unreasonable searches and seizures. State supreme courts in each state had upheld the laws. * * *
In all three cases before the high court, the challengers argued that warrantless searches should be allowed only in "extraordinary circumstances." They said routine drunk driving stops count as ordinary law enforcement functions where traditional privacy rights should apply.
Justices Sonia Sotomayor and Ruth Bader Ginsburg said they would have gone further and required search warrants for both breath and blood alcohol tests. Justice Clarence Thomas dissented, saying he would have found both tests constitutional.
Ind. Gov't. - Bad news for chickens in Columbus!
Updating this ILB post from June 20th, headed "Urban chicken coops could soon find foothold in Region," Columbus Indiana seems to be headed in the other direction. Olivia Covington reports in the Columbus Republic headed "City votes to ban chickens within Columbus city limits":
See this very long list of earlier ILB posts on "urban chickens."
Chickens within the Columbus city limits could soon be forced to fly the coop if members of the Columbus City Council stand firm in a decision to prohibit farm animals from being kept as pets.
In a 5-2 vote on Tuesday, council members gave initial approval to an amendment to the city’s animal care ordinance that would designate chickens as farm animals. The amendment also would prevent residents living within city limits from keeping farm animals as pets.
The vote came after testimony from several people in the audience of the Cal Brand meeting room — where the council meeting was moved in anticipation of a large crowd gathered to discuss the animal care ordinance. Many said they have been keeping chickens on their properties within the city limits for years without any issues.
Wednesday, June 22, 2016
Ind. Decisions - 7th Circuit decides two Indiana cases today, including reversal of Ft.Wayne Citilink denial of ads by Women's Health Link on its buses
In Women's Health Link, Incorp. v. Fort Wayne Public Transportation (ND Ind., Miller), a 9-page opinion, Judge Posner writes:
The defendant, colloquially referred to as “Citilink,” is a municipal corporation that provides bus service in Fort Wayne, Indiana, and also has regulatory authority over advertisements both inside the buses and on the buses’ exterior. The plaintiff is a nonprofit corporation (which we’ll call Health Link for the sake of brevity) that provides health care for women in Fort Wayne. It wanted to post the following advertisement in Citilink’s buses: [photo]In Nancy Thomas v. Carolyn Colvin (ND Ind., Springmann, a 16-page, per curiam opinion, the panel writes:
Citilink refused to allow the ad to be posted. It forbids public service ads that “express or advocate opinions or positions upon political, religious, or moral issues.” Although the proposed ad did not express or advocate any such opinion or position, Citilink discovered that Health Link, although it provides a variety of uncontroversial health services, mainly in the form of referrals to providers of health care, is pro‐life and so suggests (though not in the ad) that women with unplanned or crisis pregnancies consider health care and related services that provide alternatives to abortion, such as adoption counseling. Since abortion is generally regarded as a moral issue, Citilink concluded that Health Link’s proposed ad was ineligible to appear in or on Citilink buses, even though the ad itself—as any reader of this opinion can see—contains not the faintest reference to abortion or its alternatives. * * *
Once a government entity has created a facility (the ad spaces in and on its buses, in this case) for communicative activity, it “must respect the lawful boundaries it has itself set.” Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 829 (1995). Citilink’s refusal to post the ad was groundless discrimination against constitutionally protected speech. Cf. Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).
The judgment in favor of Citilink is reversed with instructions to enter judgment for the plaintiff enjoining Citilink’s refusing to post the plaintiff’s proposed ad in its buses.
Nancy Thomas applied for Supplemental Security Income in 2010 when she was 55 years old. An ad-ministrative law judge identified her medically determinable impairments as degenerative changes in her back and left shoulder, Graves’ disease, and dysthymic disorder (a form of chronic depression). But the ALJ concluded that these im-pairments do not impose more than minimal limitations on Thomas’s ability to work and denied her application. Thom-as disputes the ALJ’s omission of fibromyalgia from the list of impairments and contends that his conclusion about the severity of her physical impairments is not supported by substantial evidence. (She does not discuss the ALJ’s conclu-sion that she does not have a severe mental impairment.) We agree with both of Thomas’s contentions and remand the case for further proceedings.
Ind. Courts - The Roll of Attorneys, and the former Clerk of the Appellate Courts
On June 3rd the ILB posted "Court posts 21-page annual list of attorneys who have failed to comply with certain requirements," linking to this year's "Order of Suspension of Certain Attorneys for Failure to Pay Attorney Registration Fees, Failure to Comply with Continuing Legal Education Requirements, and/or Failure to Submit IOLTA Certifications."
A few days later, Indiana Legislative Insight wrote about this year's list:
More than 25 years ago, we were first to publicly report on the list, and you may be surprised to see at least one of the names from our first report show up on this current list. The 2016 suspension list includes a former Indiana attorney general, a former state director for a presidential candidate, a former U.S. Attorney, a former state legislator from a neighboring state, a general counsel for a state-supported university, and a former president of the city council from one of the state’s three largest cities.Which brings up a couple of caveats:
- Claiming not to have gotten notice because something went to the wrong address is no defense; you are affirmatively required to report address change to the Clerk, and you can offer additional/alternative addresses and emails for notice.
- If you retire, or die, be sure to notify the Clerk of the Appellate Courts. Otherwise, you may find yourself listed on the Roll of Attorneys as "Suspended." (see this 2010 ILB post).
The ILB has received emails several times over the years about esteemed deceased attorneys included on the annual list of suspended attorneys.
Kevin Smith joins Church Church Hittle + Antrim of Noblesville as a partner after more than a decade as the first non-elective clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court, as well as service as the Supreme Court Administrator.
Courts - "NM Supreme Court restricts judges’ use of social media. Did it go too far?"
That is the heading to an interesting post yesterday on the New Mexico Appellate Law Blog, written by Emil I. Kiehne (who is, BTW, a Notre Dame grad). Here is a copy of the 38-page opinion in New Mexico v. Thomas.
[More] Thanks to How Appealing, here as another story that has turned up, just as I was posting. From the Santa Fe New Mexican, Andrew Oxford reports, under the heading: "State Supreme Court warns judges to be careful on social media." The long story begins:
Leaving a friend request on Facebook unanswered can be awkward, even for judges, but posting too much information can be especially tricky for members of the judiciary.
In a decision issued Monday, the New Mexico Supreme Court cautioned judges to think carefully about what they share and who they “friend” online, citing a series of cases around the country where social media drama spilled into the courtroom.
The decision in State v. Truett Thomas reverses an Albuquerque man’s convictions for murder and kidnapping because of the admission of Skype testimony that the court said denied the man his constitutional right to confront an adverse witness. The case was remanded for a new trial on the murder charge.
But Facebook posts about the case by a judge who presided over Thomas’ trial spurred Chief Justice Charles W. Daniels to devote several pages of a 38-page decision to social media ethics and etiquette.
Ind. Decisions - Supreme Court decides one today
In Dannie Carl Pattison v. State of Indiana, a 12-page, 5-0 opinion (including, for the first time, new Justice Slaughter), Justice Massa writes:
At Dannie Pattison’s trial for operating a vehicle with an alcohol concentration equivalent of 0.08 or more, his jury was instructed to presume his ACE at the time of the offense based on a chemical test conducted within three of hours of his being stopped by police. Tracking the language of Indiana Code section 9-30-6-15(b), the instruction told the jury it “shall presume,” yet also stated, “the presumption is rebuttable.” We are asked to decide whether that instruction improperly relieved the State of its burden to prove each element beyond a reasonable doubt, amounting to fundamental error. Finding no error in the trial court’s instruction, we affirm Pattison’s conviction. * * *
Because the presumption is rebuttable, a defendant is free to present evidence in his defense. For instance, he could show he consumed alcohol after driving. Chilcutt, 544 N.E.2d at 858. Or, he could posit another theory, as Pattison did here, that the test results were due to his inhaler use, a supposition his jury heard and rejected. Thus, whereas the mandatory rebuttable presumption of Francis merged two elements of the crime by allowing the defendant’s actus reus to serve as proof of the requisite mens rea, here the State must still show the defendant’s ACE (indeed, through rigid testing requirements) but is merely relieved of the need to re-litigate the ACE’s extrapolation across time for every such case of operating a vehicle with an ACE over 0.08. Instead, it is the defendant who bears the burden of coming forward with facts—generally already in his possession—that amount to an affirmative defense.
Considering the scientific context of the statute creating the presumption, we maintain that our “legislature has fashioned an inspection and certification scheme to insure the reliability of test results, thereby protecting the rights of the accused, while at the same time streamlining the trial process.” Platt, 589 N.E.2d at 230; see also State v. Greenwood, 115 S.W.3d 527, 532 (Tenn. Crim. App. 2003) (“The legislature obviously knew a blood alcohol test could not be conducted while the defendant was driving. We do not believe it intended to place upon the state the impossible burden of extrapolation in order to prove DUI.”). We decline to find this reasonable approach destroys a defendant’s right to due process.1
Conclusion. Because Instruction 6 did not shift the State’s burden of proof, we see no error, let alone error so fundamental as to preclude a fair trial. We thus affirm.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 1 NFP memorandum decision(s))
For publication opinions today (2):
In In Re: the Adoption of S.O., A.O., and N.O., P.P. v. A.O., a 13-page opinion, Judge Baker writes:
P.P. (Biological Mother) appeals the judgment of the trial court, which granted an adoption petition over her objection. In an attempt to hasten the adoption process, the trial court dispensed with the statutorily required criminal background check, and did not consolidate a pending paternity action with the adoption proceeding. Reminded of the maxim, “Wisely and slow; they stumble that run fast,” we reverse and remand with instructions to correct these errors. * * *In Ricky E. Arion v. State of Indiana, a 14-page opinion, Judge Baker writes:
We must pause our analysis to note a glaring deficiency in the instant case: we can find no mention in the record of any involvement of any licensed child placing agency or any Department of Child Services (DCS) office. Our General Assembly has required that every adoption case—whether done by stepparent, blood relative, or a nonrelative—involve either a licensed child placing agency or DCS. In general, every petitioner must have such an agency complete the period of supervision along with a report. I.C. § 31-19-8-1. Although the supervisory period and report can be waived for stepparents or grandparents, I.C. § 31-19-8-5(c), exercising that waiver then obligates the court to order an agency to conduct a criminal history check and complete a report. I.C. § 31-19-8-5(d). In sum, the absence of any child placing agency or DCS in this case means an error has occurred.
Ricky Arion appeals the trial court’s denial of his motion for discharge. Arion was serving a prison sentence for unrelated convictions when he was served with a warrant informing him of the present charges. He requested a speedy trial on multiple occasions, but the State made no attempt to try him for well over a year. The State now contends that because one of its officers failed to return the warrant to the trial court after serving it upon Arion, it was absolved of its responsibility to bring Arion to trial in a timely fashion in accordance with Indiana Criminal Rule 4. The State’s position is contrary to both the text and the purpose of the rule, which places an “imperative duty upon the state and its officers, the trial courts and prosecuting attorneys.” Zehrlaut v. State, 230 Ind. 175, 183-84, 102 N.E.2d 203, 207 (1951). Because we find that the delay in bringing Arion to trial was unjustifiable and that it exceeded the length of time allowable under Indiana Criminal Rules 4(B) and 4(C), we reverse and remand with instructions to dismiss the charges. * * *NFP civil decisions today (0):
We acknowledge that this case presents a factual scenario with which we have apparently not dealt before. Accordingly, we think it wise to confine our holding to the facts presented by this case and avoid making unnecessarily broad pronouncements. That being said, here we are certain that the clock began ticking for purposes of Rules 4(B) and 4(C) at the very least by January 27, 2014—that being the date that Arion filed his motion to reconsider that included a copy of the warrant and was properly filed in the trial court and served upon the State—as after that date the trial court and the State should have been aware that Arion was being held on the charges and was requesting a speedy trial. Well over a year passed from that time, during which Arion caused no delay, but was not brought to trial, until the time at which he filed a motion for discharge on July 10, 2015. Consequently, the trial court erred in denying that motion.
NFP criminal decisions today (1):
Ind. Courts - "Clark County e-filing moves forward"
From the Clark County News & Tribune, this long June 20th story from Aprile Rickert. Some quotes:
JEFFERSONVILLE — The Clark County government offices that have been working through the transition of implementing e-filing have until Sept. 1 to move online.ILB: The reaction in Clark County seems to be more positive than reflected in this Hancock Co. story from June 15th.
At the start of this year, Clark County became the second of Indiana’s 92 counties to get on board with the system, something Clark County Clerk Susan Popp said had been an important step for several reasons.
“It became critical to jump in there early for financial support from the state and the fact that Clark County wanted to take the lead on e-filing,” she said.
All the counties will eventually be mandated to use the system but the timelines are staggered. Right now Clark County is one of 11 with the Sept. 1 deadline, with 13 more counties following later in the year.
“Because we are second out of 92, we are on a timeline that any subsequent filings by attorneys have to be e-filed by Sept 1., so that is a very aggressive timeline,” she said. “We started this on Jan 19 and Sept. 1, any subsequent filings have to be e-filed. Let’s say someone has filed a case, if an attorney wants to bring in additionally to that case weather they’re on either side of that case, they have to go through the e-file system.” * * *
Jeremy Mull, Clark County prosecutor, said he can see more of the value of the system in a few months when the bugs are worked out, but right now it’s causing more work for his office and staff.
“In the long-term, I think it’s going to be positive,” he said. “I will say that the transitioning is a very time-intensive, labor-intensive thing.”
He said in addition to extra upfront costs associated with integrating a new system, there is the time spent training and correcting issues, plus the fact that some process are multiplied right now.
“We haven’t transitioned completely over to e-filing yet so for example my office is e-filing some documents but we have to, for different reasons, print out paper copies of some of those same documents to walk them downstairs, so it’s almost like double work to get some of this stuff filed at present,” he said. “That should change in the next few weeks and months.
“I think in the long term it’s going to be a very beneficial thing for our office and for the taxpayers.”
Attorney Larry Wilder said he has been a little hesitant to jump right in with the system, but said it will be a benefit when it’s implemented.
“I think it’s a good thing, we have been doing it in federal court for years now,” he said. “In federal courts you have only one way you can file and that’s through the e-system and I think it’s a good thing that people can get online and look at things.”
Clark County Circuit Court No. 1 Judge Andrew Adams said he’s already found the new system beneficial to him, his clerks and the people involved in many of the cases he presides over, as far as expedience.
He said he uses the system about 85 to 90 percent of the time, but admitted his cases are a little different because he handles mainly civil issues.
But he can access new parts of older cases and work more quickly than before.
If a lawsuit was filed a year ago, there could have been a motion for summary judgment, a response, a reply to that response, and “all of those will be at my fingertips out there on the bench,” he said. There is a touchscreen computer right there.
“When I’m looking at an order or a motion that’s proposed, I can pull the case up and look at the motions and the replies that were filed and then rule on it all from my computer, not having to get the physical file and review those,” he said.
He said before the process could take much longer.
“If a motion was submitted, it would take a day or two in the clerk’s office, a day or two to be brought up to the court in a stack, someone would have to go through that stack to separate it, to go to the different courts ... it was usually about a seven-to-10-day turnaround on a lot of motions.”
Law - "They want their public documents. They’re not taking no for an answer"
Margaret Sullivan, new Media Columnist for the Washington Post, reports today on the Freedom of Information Act and its use by journalists, then continues:
Adding to the excitement is some good news on FOIA: President Obama has said he’ll sign a bill approved in Congress last week that makes significant improvements to the act. This is a big deal, 10 years in the making.
The reform clears away some of the obstacles to releasing information, codifying a “presumption of openness,” rather than the norm, which often seems to be a presumption of just saying no.
Ind. Gov't. - "State education department opts for secrecy"
The blog School Matters: K-12 education in Indiana had this post June 21st from Steve Hinnefeld, a former Bloomington Herald-Times reporter. Some quotes:
The Indiana Department of Education still refuses to disclose data used to determine A-F grades for schools in 2014-15, despite receiving a letter from Indiana Public Access Counselor Luke Britt that says the data should be made public.
I’ve requested the information twice, arguing it should be disclosed under the Access to Public Records Act. And the department has rejected my request twice, insisting the data falls under an exception for records that are speculative or expressions of opinion and are used for decision-making.
But I’m not asking for anything deliberative. I’m asking for numbers – the scores on a 4-point scale that were used to establish what grades schools would receive. * * *
Britt said the data should be made public, but his opinions don’t have the force of law. They merely provide guidance that agencies should follow. Only a judge, responding to a lawsuit, could order the records to be disclosed. So that’s where things stand.
It’s important to note, however, that the law says deliberative material may be kept secret at the discretion of the public agency. So even if Bauder were correct that the numbers I requested amount to opinions or speculation, the department could release them. It’s simply choosing not to.
Ind. Gov't. - "Utility commission job sits open as cases stack up"
That is the headline to this story by John Russell in this week's $$ issue of the IBJ. A few quotes:
Yet for more than two months, one of the five seats on the agency has remained empty as the workload piles up. The state has not even put out a call for interested candidates.
That’s despite a law that requires a bipartisan committee to review applications and submit names of three candidates to the governor within 40 days of the vacancy. That deadline passed nearly three weeks ago. * * *
The agency has a full agenda, with petitions worth hundreds of millions of dollars hanging in the balance for grid upgrades, efficiency programs, environmental improvements for power plants and other issues. Indianapolis Power & Light Co., for example, just filed a case asking permission to pass along $100 million in costs for pollution controls on its Petersburg coal-fired power plant.
“I can’t imagine how four commissioners can manage the caseload,” said Jodi Perras, Indiana representative for the Sierra Club’s Beyond Coal Campaign. * * *
The current vacancy occurred in April when Carolene R. Mays resigned after Gov. Mike Pence appointed her executive director of the White River State Park Development Commission, an organization that operates 250 acres of state property on the east and west sides of the White River downtown.
Mays had served on the IURC since 2010. She was previously publisher of the Indianapolis Recorder newspaper and the Indiana Minority Business magazine.
The delay in filling the vacancy is caused, at least in part, by the fact that the nominating committee that screens candidates does not have a chair. The previous chairwoman, Gwen Horth, resigned last year after Pence named her chairwoman of the Indiana Parole Board. * * *
[Even after the nominating commission has a chair, not anyone can apply for the IURC vacancy...] But not just anyone can apply. Under state law, no more than three of the five commissioners can belong to one political party. Today, three of the four current commissioners are Republicans: Carol Stephan, Angela Weber and Jim Huston, all of whom were appointed by Pence in 2014.
The only Democrat is David Ziegner, a lawyer appointed in 1990 by Gov. Evan Bayh.
That means the current vacancy must be filled by a Democrat. It also means the longer the seat remains unfilled, the longer the Republicans have a 3-to-1 sway on the commission. * * *
“There needs to be a balance of perspective and viewpoints on the commission,” said Perras of the Sierra Club. “This vacancy needs to be filled by a good candidate as soon as possible.”
Ind. Gov't. - "Indiana vape law shuts dozens of e-liquid makers out of industry"
Tony Cook and Sara Salinas of the Indianapolis Star reported this complex story on June 19th. The lengthy report begins:
When Indiana passed new regulations for the liquid used in a smoking alternative known as vaping, Brett McCullough spent more than $70,000 to make sure his company, Hoosier E-Cig Inc., would comply with the law.[More] Convenience Store Decisions has this June 21st story.
Now, he’s out of luck.
He says that’s because his company and dozens of e-liquid producers are being shut out of Indiana by a controversial state law that effectively makes a small security firm in Lafayette the vaping industry’s gatekeeper.
The impact, however, would extend well beyond producers. Retailers who must now find new sources for their product say the few producers who have been approved are charging much more. Ultimately, it is consumers who will have to pay higher prices, they say.
At issue are new regulations [sic. - "laws"] passed by state lawmakers in 2015 and revised earlier this year. The rules [sic. - "laws"] require any company that wants to produce e-liquid for sale in Indiana to be certified by a security firm by June 30.
The catch: So far only one security firm in the entire country qualifies to perform the work under the law – Lafayette-based Mulhaupt’s Inc. At this point, the company has approved only six producers, shutting out many existing competitors.
Law - "The next ‘Citizens United’ is coming" - via Indiana's own Jim Bopp
Carrie Levine of the Center for Public Integrity writes today in a lengthy story - some quotes:
Most Americans last heard from conservative lawyer James Bopp six years ago when he crafted a case, Citizens United v. Federal Election Commission, that won the Supreme Court’s favor and helped uncork a torrent of cash — some of it secret — that continues pouring into elections.
But Bopp is back. The Terre Haute, Indiana-based attorney, who was literally laughed at by a judge when he made his first arguments in Citizens United, is now the lead lawyer in the most prominent of a series of lawsuits attempting to further destroy political contribution limits. The case, brought by the Republican Party of Louisiana, addresses restrictions on how state and local political parties use “soft money” contributions to influence federal elections. * * *
Bopp says he won’t rest until there are as few election rules as possible since he believes that too many rules lead to more opportunities to game the political system. “When you say, ‘Congress shall make no law,’ I know that’s kind of a shocking statement, but it’s a pretty definitive statement,” he said, referring to the First Amendment and its application to political speech. “There shouldn’t be any laws as opposed to thousands of pages of laws and regulations that you have now in the federal system.”
Tuesday, June 21, 2016
Ind. Decisions - "Court: Cedar Lake unjustifiably fired employee"; and Why is this NFP?
Yesterday's 9-page Court of Appeals, Not-for-Publication opinion in Town of Cedar Lake v. Review Board of the Indiana Department of Workforce Development, and Nicole Hoekstra (mem. dec.) is the subject of a story today by Dan Carden in the NWI Times. Some quotes:
A former Cedar Lake town employee who was discharged for releasing public records in response to a citizen's informal request is entitled to receive unemployment benefits, the Indiana Court of Appeals has ruled.Really. More from the story:
In its 3-0 decision, the appeals court determined that Cedar Lake did not have just cause to terminate the employment of administrative assistant and special events coordinator Nicole Hoekstra for violating a town policy prohibiting "disclosure of confidential town information to outsiders without proper authorization."
According to court records, Hoekstra emailed the minutes of a public meeting concerning an engineering project to Eric Wolverton, one of the engineers working on the project, after Wolverton was unable to attend the meeting and requested the minutes.
Cedar Lake acknowledged to the court that the minutes are a public record, but insisted that Hoekstra should have required Wolverton file an official Access to Public Records request prior to receiving the documents.
The appellate panel incorporated the findings of a Department of Workforce Development administrative law judge into its ruling to conclude that Cedar Lake had no policy in force prohibiting employees from providing public information to the public.ILB: And the ILB's question is, why did the Court of Appeals panel designate the opinion as "not for publication"? One of the bases for making a ruling "for publication" and citable is found at Indiana Appellate Rule 65(A)(3):
Moreover, the court found, the town failed to use its progressive employee disciplinary procedure prior to discharging Hoekstra, and didn't even inform Hoekstra that her work, which had earned her two promotions in three years, was considered unsatisfactory.
The court said, as a result, Hoekstra was not properly terminated for cause and is entitled to receive unemployment compensation.
A Court of Appeals opinion shall be published in the official reporter and be citable if the case: * * * (3) involves a legal or factual issue of unique interest or substantial public importance.
Ind. Decisions - IBM files its response to the State of Indiana's Verified Petition for Writ of Mandamus & Writ of Prohibition
Updating this ILB post from May 25th, which detailed filings with both the Marion County Superior Court, and with the Indiana Supreme Court since the May 6th Order Upon Remand Regarding States Damages issued by Judge David J. Dreyer, Marion Superior Court 10, and which included the Supreme Court's May 24th order requiring:
Any briefs opposing issuance of the writ or any supplemental records must be filed with the Clerk of the Supreme Court, Court of Appeals, and Tax Court, on or before June 14, 2016.The ILB has now obtained a copy of the 19-page, June 14, 2016 Preliminary Response of IBM, filed with the Supreme Court in Opposition to State of Indiana's Verified Petition for Writ of Mandamus & Writ of Prohibition.
Access here the Appellate Clerk's Docket for the action, State of Indiana Acting On Behalf of The Indiana Family Social Services Administration v. Marion Superior Court, et al.
Ind. Gov't. - "State Senate panel conducting hearings on immigration has daunting task"
Zach Osowski, Evansville Courier & Press, had a good story last week (here via the Indiana Economic Digest) that began:
INDIANAPOLIS - An Indiana Senate Committee charged with studying the impact of illegal immigration heard Wednesday just how confusing and difficult the current immigration system in America is.For background, see this ILB post from April 19th.
And there might not be much Indiana lawmakers can do to fix the problem, even if they wanted to tackle the astronomical cost of doing so.
Immigration Attorney Angela Adams testified before the committee about just how big an impact deporting illegals from Indiana would bring. She said the state would lose $2.8 billion in economic activity if all undocumented workers were removed. In addition, she said illegal immigrants pay between $89 and $109 million a year in taxes.
Members of the U.S. and Indiana Chambers of Commerce also testified before the committee, which focused on the current problems businesses face when it comes to immigration and what can be done. Because the federal government ultimately decides immigration policy, Jon Baselice, with the U.S. Chamber, warned that Indiana's ability to do anything about illegal immigration might be limited.
"Our current immigration system is outdated. It's a sub-optimal system that has contributed to the large number of undocumented immigrants," Baselice said. "But real change needs to come from Washington D.C." Baselice said perhaps the most important thing Indiana lawmakers could do would be to keep pressure on their Washington counterparts to make changes.
Courts - "SCOTUS Says Police May Use Evidence Found After Illegal Stops"
The SCOTUS is nearing the end of its term. After yesterday's five decisions, only eight cases remain. The most controversial opinion issued yesterday was Utah v. Strieff. Here are some quotes from Adam Liptak's long story on the ruling in the NY Times:
WASHINGTON — The Supreme Court on Monday ruled that evidence found by police officers after illegal stops may be used in court if the officers conducted their searches after learning that the defendants had outstanding arrest warrants.From Robert Barnes' story in the Washington Post:
Justice Clarence Thomas, writing for the majority in the 5-to-3 decision, said such searches do not violate the Fourth Amendment when the warrant is valid and unconnected to the conduct that prompted the stop.
Justice Thomas’s opinion drew a fiery dissent from Justice Sonia Sotomayor, who said that “it is no secret that people of color are disproportionate victims of this type of scrutiny.”
“This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time,” she wrote. “It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.” * * *
Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer and Samuel A. Alito Jr. joined the majority opinion.
In a dissent that cited W.E.B. Du Bois, James Baldwin and Ta-Nehisi Coates, Justice Sotomayor said the court had vastly expanded police power.
“The court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights,” she wrote. “Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong.” * * *
Justice Ruth Bader Ginsburg joined most of Justice Sotomayor’s dissent, along with all of a separate dissent from Justice Elena Kagan. But Justice Sotomayor reserved her most personal reflection for a part of her dissent in which she wrote only for herself, setting out in detail the dangers and indignities that often accompany police stops.
“For generations,” she wrote, “black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”
“We must not pretend that the countless people who are routinely targeted by police are ‘isolated,’ ” she wrote. “They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”
Justin Driver, a law professor at the University of Chicago, said Justice Sotomayor’s dissent was remarkable. It was, he said, “the strongest indication we have yet that the Black Lives Matter movement has made a difference at the Supreme Court — at least with one justice.”
The Supreme Court ruled Monday that courts need not suppress evidence of a crime even if the arresting police officer used unlawful tactics to obtain it. The decision prompted fierce dissents from three of the court’s liberals. * * *
Justice Stephen G. Breyer joined the court’s conservatives in the majority.
But Breyer’s fellow liberal justices Sonia Sotomayor and Elena Kagan each wrote blistering dissents, and each was joined by Justice Ruth Bader Ginsburg. * * *
Kagan said Fackrell’s actions were “far from a Barney Fife-type mishap,” referring to the incompetent deputy on “The Andy Griffith Show.” She and Sotomayor noted that there are millions of outstanding warrants for Americans on minor charges that could be used as justification for seizures.
Both justices referred to a Justice Department report that showed that in the town of Ferguson, Mo., which has a population of 21,000, 16,000 people had outstanding warrants against them.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 7 NFP memorandum decision(s))
For publication opinions today (1):
In In the Termination of the Parent-Child Relationship of N.C. (Minor Child) and A.C. (Father) v. The Indiana Department of Child Services, a 12-page opinion, Judge Mathias writes:
A.C. (“Father”) appeals the involuntary termination of his parental rights to his minor son N.C. (“Child”). Father presents one issue, which we restate as whether the American with Disabilities Act (“ADA”) applies in termination proceedings. We affirm. * * *NFP civil decisions today (4):
Father argues that because he is deaf and has cognitive and mental health problems that DCS was required to provide him accommodations under the ADA. He specifically contends that DCS’s failure to accommodate his disability is a defense in this termination proceeding.
Although Father makes this argument on appeal, after review of the record, we cannot agree that he raised this issue before the trial court. Father concedes that he did not specifically mention the ADA issue during the termination hearing, but rather argues that Father’s counsel repeatedly raised the failure of DCS to accommodate his disability.
However, the record is devoid of such statements that Father alleges in his brief. Indiana Appellate Rule 46(A)(8)(a) provides:The argument must contain the contentions of the appellant on the issues present, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on.A party waives an issue where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record. York v. Frederic, 947 N.E.2d 969, 979 (Ind. Ct. App. 2011), trans. denied. Further, a party may not raise an issue for the first time on appeal. See In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001). Therefore, the issue is waived for failure to develop an argument supported by cogent reasoning and because it was raised for the first time on appeal.
[The court goes through several additional arguments, and concludes]
For all of these reasons, we conclude that Father waived the issue of whether the ADA applies in a termination of parental rights proceeding. Waiver notwithstanding, Father’s discrimination claim cannot serve as a basis to attack the trial court’s termination order.
NFP criminal decisions today (3):
Ind. Courts - "Order Clarifying Appellate Rule Amendments Effective July 1, 2016"
From the order, filed yesterday afternoon, Chief Justice Rush writes:
Effective July 1, 2016, the Rules of Appellate Procedure governing the preparation and filing of materials for cases on appeal will change. Questions have arisen concerning the application of the amended rules to cases that straddle the effective date of the amendment, that is, those cases where the Notice of Appeal is filed prior to July 1, 2016, and filings in those cases occurring on or after July 1, 2016. These questions are resolved as follows:
- A Clerk or Court Reporter shall prepare the Clerk’s Record, Transcript, and any other materials filed with the Court on Appeal based upon the rule in effect at the time the Notice of Appeal was filed.
- Attorneys shall prepare their briefs, appendices, and other materials filed with the Court on Appeal based upon the rule in effect at the time those items are filed with the Court on Appeal.
Ind. Gov't. - "Our Opinion: Yes, prisoners in Indiana need good health care"
That is the heading to a lengthy June 17th editorial in the South Bend Tribune. The editorial draws on data from a series by reporter Virginia Black, which ran in the SBT last week (and earlier). Here is a page that links to some of the stories, but others I've located are not listed ...
Some quotes from the editorial:
But when Gov. Mitch Daniels in 2005 decided to turn prison health care over to a private company — as part of a larger push to privatize state services — was it the right move? As Black’s stories revealed, there are legitimate concerns about how well inmates are being served by the company, Corizon Health, and how well the state is monitoring the level of care.
Complaints spiked in Indiana 2015, while officials in other states have accused Corizon of cutting corners to save money. Then there are the human stories: the Centerville man who died in prison after just 37 days even though prison officials knew of his health struggles, including the need for a tracheostomy tube; the Huntington woman who died coughing up blood while handcuffed and shackled in an ambulance; the Knightstown man whose cancer went undiagnosed for nearly two years.
There are key areas where Indiana can take a harder look at its medical care, and both short-term and longer-term steps it can take:
• Oversight. The hundreds of complaints that are filed by inmates about health care are reviewed primarily by one person — the Department of Correction’s ombudsman. She can choose to take a deeper dive on complaints or dismiss them. What recourse does an inmate have with the state if the decision is to pass? Virtually none.
Meanwhile, the chief medical officer for the DOC, Dr. Michael Mitcheff, is responsible for working with Corizon in overseeing its health care. His previous job? Working at Corizon, as a regional medical director. Mitcheff and the company insist the level of care is reviewed carefully. But lawyers and former Corizon doctors level accusations of pressure to rein in costs.
Michigan has tried to build at least one level of oversight. It also contracts with Corizon, but it hires another outside company to help monitor Corizon, including reviewing reports and audit findings.
• Prescription medicines. State officials provided two different and varying sets of figures on the amount of drugs prescribed to inmates each month. They couldn’t explain the discrepancy. And each set showed odd patterns. Need we point out that drugs are supposed to be prescribed based on need?
• Transparency. Reports that Corizon is supposed to file with the state, including information on staffing shortage and inmate deaths, are not made public. The state cites confidentiality of medical records as the blanket reason. It’s too thick a blanket; there are ways to release information while protecting the identity of patients or victims. Also, while the state releases lists of prisons and their scores during inspections, it does not include details about the inspectors or what they may have found to be deficient.
• Review all options. Indiana’s latest contract with Corizon is due to expire at the end of this year. Many states, such as Florida, Tennessee and Maryland, have walked away from Corizon in recent years. Indiana should thoroughly review its contact, its relationship with the company and the level of care before deciding to renew. At this point, after over a decade, it’s worth asking whether Indiana has made the best choice.
• Listen to the judges. A group of federal judges in southern Indiana is so worried about prisoners who aren’t getting proper legal representation with medical cases that they’re pushing to set up a system to recruit attorneys and experts who can help. One judge cited the “urgent and ever-increasing need” to get legal help for poor plaintiffs. Unfortunately, judges in the federal court’s northern district, which includes South Bend, are “not doing anything along those lines,” a spokesman said. They should pay closer attention, and consider following the lead of their counterparts.
The bottom line is prison inmates have a right to quality health care, and the state has an obligation to provide it, as difficult as the task may be. It’s time for Indiana to make sure it’s meeting that obligation.
Ind. Gov't. - More on "Wind farms whipping up opposition across rural Indiana"
Following up on this ILB post from June 9th, Travis Weik, New Castle Courier-Times reporter (here as republished in Indiana Economic Digest) reports under the headline: "Henry County Area Plan Commission denies request for 2 meteorological towers." Some quotes:
NEW CASTLE — The Henry County Planning Commission denied two requests from Apex Clean Energy to build towers in the southern part of the county to gather wind data. The meteorological towers, commonly called met towers, would have been placed in Spiceland and Dudley townships.
“We are disappointed,” said Brenna Gunderson, Apex senior development manager for the Flat Rock Wind project.
Gunderson told the planning commission that met towers are very important factors in the process of constructing a wind farm. Without collecting data in the area, Apex cannot determine whether or not the sites would be able to support industrial wind turbines as part of the larger Flat Rock Wind farm. * * *
Sharon Mullen presented numbers from the 2010 census to the commission that compared Henry County population density to Tipton County, home to many active wind turbines. According to the data, Henry County is home to more than three times the number of people in Tipton County. Mullen also gave the commission members photos she had of broken turbines.
“Henry County is just too populated,” Mullen said. “When I look at these pictures, and I see broken blades and them so close to homes, I’m just praying that this met tower don’t go up or turbines come into our county.”
Christy Coffey, from Fall Creek Township, brought up that the Henry County Commissioners wanted a committee to review the current ordinances regarding wind turbines and meteorological towers.
“Why add new towers to something that you may possibly change soon?” Coffey asked.
Henry County resident Patsy Conyers suggested that Apex was trying to install the met towers under the current building code to avoid future regulations. Henry County Zoning Administrator Darrin Jacobs explained that the CAU requests were submitted following the May meeting of the planning commission, weeks before the county commissioners asked for a review of the ordinances.
Opponents of wind farms and turbines in Henry County spent an hour telling the planning commission why they should deny the Spiceland Township met tower. No one spoke in favor of the project.
Monday, June 20, 2016
Ind. Gov't. - "Urban chicken coops could soon find foothold in Region"
That is the headline of this long story by Rob Earnshaw of the NWI Times this weekend that begins:
VALPARAISO — Jennifer Murtoff, who bills herself as the Midwest's only chicken consultant, was happy to hear Valparaiso will consider allowing more city residents to own backyard chickens.It follows on this April 21, 2016 ILB post, headed "Valpo family may lose their backyard chickens after complaint," one of this very long list of earlier ILB posts on "urban chickens."
Chesterton recently passed a similar ordinance and other Region cities and towns already allow urban chickens.
The Valparaiso City Council will vote on the ordinance at its next meeting at 7 p.m. June 27 at City Hall. If adopted, residents could have up to four chickens that must be kept securely enclosed on the owner's property at all times. The ordinance has several other requirements, including that a chicken coop, or enclosed structure, to shelter the chickens must be provided.
Env. - "Concerns raised over Indiana plan to adopt coal ash rules"
That is the headline to this AP story by Rick Callahan, here as published in the Miami Herald. The long story begins
INDIANAPOLISILB: "Coal ash" is a topic about which the ILB has many earlier posts.
Environmental groups are raising concerns about Indiana's plan to adopt new federal standards for the ponds and landfills where utilities store vast amounts of coal ash waste produced by coal-fired power plants.
The tighter regulations from the U.S. Environmental Protection Agency took effect in October, and Indiana is planning to incorporate those provisions into its solid waste rules.
Indiana is home to at least 74 coal ash ponds and 14 landfills containing the gritty waste that's the legacy of its long reliance on burning coal to generate electricity. That ash contains arsenic, chromium, lead and other heavy metals that can threaten groundwater.
The Indiana Department of Environmental Management is taking public comments through June 30 on its draft plan for adopting the new rules, including requirements for preventing the impoundments from contaminating groundwater.
The state agency held a public hearing Thursday in Indianapolis during which several environmental groups raised concerns about the plan, which the EPA must approve.
Jodi Perras, the Indiana representative for the Sierra Club's Beyond Coal Campaign, said she and other activists were stunned that IDEM's proposal does not include a requirement that utilities post on their websites inspection reports and other documents on their coal ash sites.
Perras said that provision in the EPA's coal ash rules is intended to ensure "trust, transparency and honesty" about coal ash impoundments and that online access is important to residents near coal ash ponds worried about possible groundwater contamination.
Ind. Decisions - 7th Circuit posts two Indiana opinions decided Friday
In U.S. v. Bloch (ND Ind. Miller), a 23-page opinion, Judge Kanne writes:
Defendant John W. Bloch III has had three sentencing hearings in four years. He now seeks a fourth. Bloch argues he is entitled to such relief because the district court committed error in imposing the length and conditions of supervised release.In Bell v. Lantz (SD Ind., Pratt), an 11-page opinion, Judge Rovner writes:
The third time happens to be a charm in this instance though, as Bloch is not entitled to another sentencing hearing. The district court not only adequately explained its justi-fication for imposing a term of supervised release, it also adopted a “best practice” suggested by this court for provid-ing adequate notice to defendants of proposed conditions of supervised release and justification for the same. Therefore, we affirm the district court’s sentence.
This appeal concerns an award of attorney’s fees by the district court to Charles Lantz, who was the defendant in a suit brought by Richard Bell under the Copyright Act, 17 U.S.C. § 501 et seq., which was later voluntarily dismissed. Bell does not challenge the court’s decision to award fees, but contests the amount of fees awarded.
The original copyright infringement action was filed by Bell, a practicing attorney and professional photographer, against forty-seven defendants including Lantz. Bell had taken a photograph of the Indianapolis skyline (the “Indianapolis Photo”), and alleged that each of the defendants violated the Copyright Act in publishing his photograph on their websites. Lantz filed an answer denying all allegations of copyright infringement of the Indianapolis Photo. Through responses to interrogatories, Bell confirmed that Lantz had not infringed his copyright, and the district court granted Bell’s motion to voluntarily dismiss his copyright infringement claim with prejudice.
In light of that dismissal with prejudice, Lantz filed a motion as the prevailing party for costs and attorney’s fees under 17 U.S.C. § 505 of the Copyright Act. * * *
The evidence in the record therefore provides little support for the $410 figure. The district court never properly analyzed that evidence, however, because it appeared to be unaware of the sealed exhibits produced by Bell. As we have discussed above, that evidence deals a significant, and quite likely fatal, blow to Lantz’s argument that he is entitled to an attorney’s fee of $410 per hour as opposed to $250 per hour, and therefore a remand is required.
Accordingly, the award of attorney’s fees is VACATED and the case REMANDED for further proceedings consistent with this opinion.
Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 3 NFP memorandum decision(s))
For publication opinions today (0):
NFP civil decisions today (1):
NFP criminal decisions today (2):
Ind. Decisions - Transfer list for week ending June 17, 2016
Here is the Clerk's transfer list for the week ending Friday, June 17, 2016. It is one page (and 9 cases) long.
No transfers were granted last week.
Ind. Courts - Four "commercial court" cases already have been docketed in Judge Welch's Marion Superior Court
This weekend, This Week on Inside INdiana Business included a segment on the commercial court pilot project, featuring Loretta Rush, Indiana Supreme Court Chief Justice and Kevin Brinegar, President, Indiana Chamber of Commerce.
The new commercial court pilot project went into effect June 1. Chief Justice Rush mentioned during the interview that four cases already had been docketed in Judge Heather Welch's Marion Superior Court. (Here is a graphic showing the six judges and court locations).
The ILB tried to find them. But as far as I can tell, there is no way to find, or follow, the commercial courts' dockets (or the list of cases docketed in any court) via mycase.IN.gov, or any other resource.
The IndyGov Marion Superior Court page gives no indication of a separate commercial courts docket. It says only: "The Civil Division handles general civil cases, juvenile cases, probate and environmental cases and domestic relations matters."
Ind. Gov't. - "East Chicago House candidate survives residency challenge"
Dan Carden reported last week in the NWI Times:
INDIANAPOLIS — Earl Harris Jr. will remain a candidate on the November general election ballot seeking to represent portions of East Chicago and Gary in the Indiana House.
On Wednesday, the Indiana Election Commission rejected an eligibility challenge that claimed Harris is not a legitimate resident of House District 2. It was filed by Rosa Maria Rodriguez, who was runner-up to Harris in the May Democratic primary.
The outcome wasn't even close to uncertain as the two Republican and two Democratic election commissioners easily agreed, following an hour of testimony, that Harris met the state's legal standard for candidate residency.
Specifically, Harris expressed intent to live at his mother's East Chicago home beginning in March 2015, and took action to carry out that intent, such as living in the house, moving property into the house and changing his voter registration, bank records, insurance and other official documents to reflect his new address.
"There's nothing before us, I think no valid evidence, that gives question as to what he has stated his intent was," said Commissioner Suzannah Wilson Overholt, a Democrat.
Rodriguez argued that Harris should be removed from the ballot because Harris owns an Indianapolis house for which he received a 2015 homestead property tax credit, which only is available for a person's primary dwelling.
"How is it that Earl Harris now lives ... in East Chicago and still takes a homestead credit for his true residence in Indianapolis?" Rodriguez said. "Voter fraud? Tax code violation? Or both?"
Guided by attorney Scott Chinn, Harris explained that he moved from Indianapolis to East Chicago to live with his mother, state Rep. Donna Harris, following the March 23, 2015, death of his father, longtime state Rep. Earl Harris Sr.
Harris said he simply forgot about telling the Marion County auditor to remove the homestead credit while grieving his father's death, and later amid moving, helping with his mother's health issues, relocating his video production business and campaigning for state representative.
"With everything that was going on ... it slipped through the cracks," Harris said.
Harris testified that he recently contacted the county auditor to take off the homestead credit and take care of any unpaid taxes, since he intends East Chicago to be his permanent residence.
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 6/20/16):
Thursday, June 23 [[Note: This will be Justice Slaughter's first opportunity to hear oral arguments. He was sworn in on June 13th.]
- 9:00 AM - Thomas Todd Reynolds v. Tricia Reynolds (29A04-1505-DR-265) In this post-dissolution proceeding, Father did not provide income documentation in response to Mother’s requests. The Hamilton Superior Court concluded Father violated the provisions of the parties’ dissolution decree and found him in contempt. The Court of Appeals reversed. Reynolds v. Reynolds, No. 29A04-1505-DR-265 (Ind. Ct. App. 2016), trans. pending. Mother has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a Feb. 16, 2016 NFP COA decision.
- 9:45 AM - Mary K. Patchett v. Ashley N. Lee (29A04-1501-CT-1) In this personal injury action, the Hamilton Superior Court entered an order in limine prohibiting the defendant from mentioning at trial that the plaintiff’s state-sponsored health insurance plan had paid, and the healthcare providers had accepted, discounted amounts in full satisfaction of the plaintiff’s medical bills. On interlocutory appeal, the Court of Appeals accepted jurisdiction and affirmed, concluding Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009), did not apply, and the trial court did not abuse its discretion in finding evidence of the discounted payments is inadmissible under Evidence Rule 403. Patchett v. Lee, 46 N.E.3d 476 (Ind. Ct. App. 2015), reh’g denied. The defendant has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a Nov. 19, 2015 COA opinion. Note: according to the docket, several amicus briefs have been filed with the Supreme Court in this case. Unfortunately, all briefs were filed prior to the April 1, 2016 date when briefs became accessible online; the ILB does not have access to them.
- 10:30 AM - L.C. v. Wayne Zollman (10A04-1509-PO-1438) After an evidentiary hearing, the Clark Circuit Court dismissed a request for a protective order, concluding the petitioner had not shown, by a preponderance of the evidence, that stalking or a sex offense occurred sufficient to justify a protective order. Affirming, the Court of Appeals held that the trial court’s order is adequate for appellate review and the trial court did not abuse its discretion in dismissing. L.C. v. Wayne Zollman, No. 10A04-1509-PO-1438, 2016 WL 614032 (Ind. Ct. App. 2016), trans. pending. The petitioner asks the Supreme Court to accept jurisdiction over the appeal. ILB: This is a Feb. 16, 2016 COA opinion.
Next week's oral arguments before the Supreme Court (week of 6/27/16):
Thursday, June 23
- 9:00 AM - Demetrius Holloway v. State of Indiana (71A04-1508-CR-1292) After pleading guilty to operating a motor vehicle while intoxicated, Holloway was convicted of intimidation following a bench trial. Holloway appealed, arguing insufficient evidence supports his conviction for intimidation. A divided panel of the Court of Appeals affirmed. Holloway v. State, ___ N.E.3d ___, 2016 WL 659159 (Ind. Ct. App. 2016), trans. pending. Holloway has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a 2-1, Feb. 18, 2016 COA opinion. From the dissent: "Being a police officer is often fraught with danger and unpleasantness. But to affirm under these circumstances seems to me perilously close to rendering illusory the right to appeal a conviction such as this."
- 9:45 AM - Demajio Ellis v. State of Indiana (71A05-1511-PC-1845) For his role as an accomplice, Demajio Ellis pleaded guilty to two counts of attempted murder and two counts of attempted robbery, and received a sentence of 100 years with 60 years suspended to probation. The St. Joseph Superior Court denied Ellis’s petition for post-conviction relief. The Court of Appeals affirmed, finding Ellis’s plea was not unreliable. Ellis v. State, No. 71A05-1511-PC-1845 (Ind. Ct. App. March 15, 2016) (mem. dec.), trans. pending. Ellis has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a March 15, 2016 NFP COA decision. From the opinion: "The sole restated issue is whether Ellis consistently denied culpability for the crimes to which he plead guilty, undermining the reliability of his plea and requiring the post-conviction court to vacate it as a matter of law."
- 10:30 AM - Michael Day v. State of Indiana (24A05-1506-CR-724) After a bench trial, the Franklin Circuit Court convicted Michael Day of disorderly conduct. See Ind. Code § 35-45-1-3. A divided Court of Appeals affirmed, rejecting Day’s argument that his behavior did not constitute disorderly conduct within the meaning of the statute. Day v. State, 48 N.E.3d 921 (Ind. Ct. App. 2016), trans. pending. Day has petitioned the Supreme Court to accept jurisdiction over the appeal. ILB: This is a 2-1 March 15, 2016 NFP COA decision. From the dissent: "I simply cannot believe that a verbal argument between members of a household, within their own home, can be the sole basis of a criminal conviction for disorderly conduct."
This week's oral arguments before the Court of Appeals (week of 6/20/16):
- No oral arguments currently scheduled.
Next week's oral arguments before the Court of Appeals (week of 6/27/16):
Tuesday, June 28
- 10:30 AM - Santiago Valdez v. State of Indiana (18A02-1509-CR-01514) Santiago Valdez was convicted of attempted rape and confinement. He agreed with the State to admit into evidence his 1993 conviction for a similar offense, believing that it would aid his insanity defense. The parties agreed on a limiting instruction regarding the 1993 conviction, but that instruction was never given to the jury. Also, the trial court did not allow Valdez to admit several documents from that 1993 case that suggested he was mentally ill. Valdez argues that this is particularly unjust since the prosecutor repeatedly claimed that Valdez had no history of mental illness. Finally, during closing arguments, the prosecutor not so subtly hinted that defense counsel instructed one witness on what to say, despite having no evidence that this occurred. Valdez argues that this entitles him to a mistrial. The Scheduled Panel Members are: Judges Baker, Najam and May. [Where: Monroe County Courthouse, Nat U. Hill Courtroom, Bloomington]
- 11:00 AM - Gregg Appliances, Inc., and HHGregg, Inc. v. Dwain Underwood, on behalf of himself and all others similarly situated (49A04-1509-PL-1434) Dwain Underwood, as representative of a class of certain management employees, sued HHGregg, Inc. after Gregg declined to play the class members a bonus based on company earnings. The company earnings were at a level that would result in bonuses, but that was because of an insurance payment the company received after its chairman died. Gregg argued it did not have to pay the bonuses because its earnings did not reflect the class members' performance. Gregg appeals a summary judgment for the class. The Scheduled Panel Members are: Judges Baker, May and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]
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.
Sunday, June 19, 2016
Law - More on "An Expensive Law Degree, and No Place to Use It"
What started as the NYT "Dealbook" article by Norm Scheiber the ILB linked to on Friday has now morphed into a story that begins on the front page of the Sunday Business section of the New York Times, and continues to one and a half full inside pages. In the print version, it is captioned "The Law School Bust: On an Indiana campus, law students trapped in debt, dejected professors and scant jobs. Many schools are struggling."
Don't miss reading today's NYT article in full! A few quotes:
- Given the tectonic shifts in the legal landscape, the relevant issue may not be how much law schools like Valparaiso should shrink. Today the more important question is whether they should exist at all.
- Today, she is over $100,000 in debt and her job search has been taxing. With few leads on a legal position, Ms. Anderson has set her sights on a so-called J.D.-advantaged job, such as vetting and negotiating a corporation’s contracts with suppliers. The starting salary is likely to be in the mid-to-high five figures, but she hopes such a job could lead to a more senior position. [Italics added by ILB]
For students like Ms. Anderson, the problem isn’t just that the market for Valparaiso law graduates is saturated, although it is. Mr. Lucas, the law partner who rents space to Mr. Acosta, complained of a large “oversupply of lawyers” in the area.
It’s that the market for all recent law school graduates has been relatively saturated. * * *
“I counsel a lot of students and try to make them realize that a J.D.-advantaged job can be extremely useful,” said Del Wright Jr., a Valparaiso tax law professor who is one of the school’s most popular instructors.
“You see all these businesses, ‘We Buy Liens’ — what exactly is going on there?” he continued, explaining that buyers of tax liens can earn hefty state-sanctioned interest rates, as well as fees to get the liens removed. “If you are entrepreneurial but not the best lawyer, you might look into it.”
- When Mr. Berner joined the Valparaiso faculty in 1971, he was one of nine professors, and the school focused primarily on legal instruction. But in the mid- to late 1980s, he said, the school put an increasing emphasis on legal scholarship and recruited faculty members who could produce it. Across the country, many law schools were undergoing a similar evolution.
It’s no coincidence that the average law school faculty began to grow quickly around this time: Each professor was teaching fewer courses to make time for research. Mr. Berner said he went from teaching 15 or 16 credit hours a year — typically five classes — to no more than 12. Every law school seemed to want to emulate Harvard and Yale. (Valparaiso said the growth of its faculty was due in part to an American Bar Association mandate to make its curriculum more comprehensive.)
It’s also no coincidence that law schools raised the cost of attending, which helped cover the additional expense. Against the backdrop of a healthy demand for lawyers, fast-rising tuition did not discourage students, who could borrow most (and eventually all) of the cost from the government and frequently pay it back with relative ease. Law school applications generally increased over the next two decades.
- For Valparaiso, the bottom fell out in two stages. Applications dropped from over 3,000 in 2007 to under 1,600 in 2009, although this was partly because of a change in recruitment strategy, then below 1,200 a few years later.
After this second drop, faculty members and administrators became anxious. “I was chair of the admissions committee and we’re sitting there watching this,” Mr. Berner said. “It’s a mess.”
The committee agonized over whether it should accept fewer students or keep its class size roughly constant and admit weaker candidates. In the end, it opted for the latter, a decision Mr. Berner admits wasn’t entirely on the merits, since fewer students would have meant less revenue. * * *
By 2014, the limitations of the strategy had become apparent: The figures the school reported for the rate at which its graduates passed the Indiana bar exam, which had already been dipping, crashed to about 61 percent, from about 77 percent the year before. An enormous number of students wouldn’t be able to work as lawyers in the state even if jobs were theoretically available. * * *
But the following year [after remedial classes were instituted], bar passage rates ticked up only a few points. The problem was that these rates tend to be a broadly predictable function of scores on the Law School Admission Test. With average test scores dropping as the school relaxed its entry criteria, there were limits to how much the school could improve its bar results.
- [There is interesting discussion about how such schools lure a handful of top students with lucrative scholarships...] [T]he way Valparaiso and other lower-ranked schools lure students like Mr. Hahn is to offer sizable scholarships, and the only way they can afford these scholarships is if a large proportion of other students pay full freight.
Inevitably, many of these sticker-price payers are weak students who lack better options. * * * It’s the marginal students who pay the bills, not students like Mr. Hahn.
And this dynamic is very likely to continue, for the simple reason that there is still too much law school capacity chasing too few good students. While law school applications have dropped by nearly 40 percent nationally since 2010, enrollment has dropped by only about 30 percent, and the number of full-time faculty members has dropped by less than 15 percent, according to data compiled from A.B.A. filings by the law school analyst Matt Leichter.
In such a world, schools like Valparaiso essentially face the following choice: Admit a large number of marginal students, or shut down.
- “Why does Valpo have an economic structure that looks like Harvard Law School’s?” asked Mr. Campos, the University of Colorado expert on the prospects of recent law school graduates. “It makes absolutely no sense to do it. It’s why they have to charge Harvardesque prices.”
Two generations ago, someone like Ms. Tapia could have attended Valparaiso and still made it financially even if her legal career didn’t pan out. Today, that’s simply not possible.
“The bottom line here is that institutions like Valparaiso clearly were fulfilling a valuable role until they were swept up in various forms of craziness in higher education,” Mr. Campos continued.
I am a lawyer in practice for 25 years. Make no mistake, the American Bar Association created this mess. The ABA has certified too many law schools and has placed ridiculous standards on these school thus driving up tuition to back-braking levels. Now law schools are admitting unqualified students to keep their numbers up. It is scary to observe many of these recent graduates. They are poorly read, lack critical thinking skills and are loosely educated. You better believe there are dozens-yes dozens of law schools that need to close.Here is another:
This has been an on-going story that I've been reading about for almost a decade now so I am hard pressed to feel sorry for these people. The idea is fatuous that if "I could just pass the bar then I'd get a job." I work in a company that has 3 paralegals; when one of them left a year ago we had 160 resumes for the position and over half of them were from law school grads looking for a foot in the door.
People thinking about going to law school need to realize that this market has hit its saturation point and the waters aren't going to recede for years and years to come. Lawyers are taught to think strategically, so maybe it's time for them to think about Plan B.
Friday, June 17, 2016
Ind. Gov't. - "Indiana lags in minority representation"
Christin Nance Lazerus has a long story today in the Gary Post-Tribune that begins:
As Indiana's population gets more diverse, minority political representation is lagging.
Blacks make up more than 9 percent of Indiana's population, yet hold 8 percent of the seats in the Legislature and just one of the state's 11 congressional seats, according to an Associated Press analysis. Hispanics make up almost 7 percent of the state's population, but less than 1 percent of the Legislature. The state's nine-member congressional delegation includes one African-American, but no Latinos, the analysis shows.
Much of the minority populations are concentrated in urban areas like Lake County and Indianapolis, so local officeholders tend to be more diverse there. * * *
There are no blacks currently elected to prominent statewide office, but that could change soon. Elkhart County Prosecutor Curtis Hill became the first black candidate for Republican statewide office, when he captured the nomination for Attorney General at last weekend's state GOP convention. Gary Mayor Karen Freeman-Wilson, a Democrat, is a former Indiana Attorney General.
Brown said the Democrats should do better.
"I don't know why the (statewide) ticket couldn't have been more balanced," Brown said. "I think state party and national Democratic Party leaders take African-Americans for granted. We're one of their staunchest supporters, so we don't have to do as much for them. That has got to change on the state and national level."
Karen Freeman-Wilson was appointed to the Indiana Attorney General post in February 2000. She ran for election to the post that same year, but she was defeated by Republican Steve Carter, a Lowell native.
Freeman-Wilson said she doesn't think her identity as a black female hampered her since Pam Carter — "a great friend and mentor" — had previously been elected to the post in 1993 when Democrat Evan Bayh was governor. * * *
Northwest Indiana is home to a large Hispanic population — particularly in East Chicago, where four city council members and five school board members are Hispanic.
Rep. Christina Hale, an Indianapolis Democrat, is currently only Latina in the statehouse. Hale, who is of Cuban heritage, is the running mate of Democratic gubernatorial nominee John Gregg, who is a former Speaker of the House. If elected, she would become lieutenant governor.
Ind. Gov't. - "IDEM initiates pollution tests around Kokomo Opalescent Glass"
Updating an ILB post from May 31st headed "'EPA accuses Kokomo Opalescent Glass of violating air pollution permit' Historic Indiana company made glass for Tiffany," Carson Gerber of the Kokomo Tribune reported on June 15th - some quotes:
The Indiana Department of Environmental Management has begun conducting tests around Kokomo Opalescent Glass to determine if the art-glass manufacturer is emitting hazardous amounts of potentially toxic materials.
IDEM completed soil tests around the facility last month to determine whether the company was emitting dangerous amounts of pollutants as part of a national investigation by the Environmental Protection Agency into art-glass facilities around the country.
The EPA started the investigation in February after a glass factory in Oregon was found to be releasing dangerous amounts of toxic metals.
That investigation led the EPA to investigate KOG, which is the nation's oldest manufacturer of opalescent glass. The EPA determined KOG was violating the Clean Air Act by failing to obtain a federal permit that regulates glass manufacturers.
The EPA alleged the violation had resulted in the company emitting elevated amounts of metals into the air.
IDEM ended up taking samples from nine different locations at or near KOG to test for elevated amounts of potentially toxic metals such as arsenic, barium, cadmium, chromium, lead, mercury, selenium and silver.
The tests revealed slightly elevated levels of arsenic at five locations, including at two houses located directly west of the facility on the 1300 block of South Union Street.
The arsenic levels there were slightly above the residential soil direct contact levels set by the EPA, which are conservative calculations of how clean a site should be to be appropriate for residential use.
However, Barry Sneed, a public information officer with IDEM, noted arsenic is a naturally occurring element in Indiana soil, and many areas of the state have levels above those set by the EPA.
He said the arsenic levels around KOG do not pose a health hazard to residents. * * *
Besides arsenic, no other metals were discovered above the limits set by the EPA.
IDEM now plans to set up air monitoring equipment around the facility to further test for elevated pollution levels. * * *
Sneed said the end game for all the testing is to help the EPA and IDEM determine if emissions from the KOG plant may be a threat to human health or the environment.
He said the soil testing so far indicates that the facility is not a threat.
Elliott said the company is now working with the EPA “to identify potential steps that will confirm our facility is not emitting impermissible levels of pollutants.”
Those steps were discussed during a meeting on May 16 between KOG officials and the EPA set to address the agency’s allegations that the company should be required to obtain a federal Title V permit, which would increase the amount of oversight and air-pollution regulations the company has to follow.
“At the meeting, we were able to bring new information to the agency’s attention regarding the way KOG’s processes and unique equipment design dramatically minimize undesirable emissions, and how these facts impact the applicability of relevant federal regulations,” Elliott said.
In a letter sent to the EPA before the conference, KOG said that it uses 12 individual, insulated pot furnaces that don’t release any materials through its stacks during the glass-making process.
The company also argued it should not be required to obtain a federal permit because it does not operate a continuously operated furnace, which would make it subject to federal regulations.
“As a leader in the United States’ colored glass manufacturing industry, KOG’s continued compliance with those requirements applicable to its operations is of the utmost importance, and the company hopes to work with the agency to address these allegations,” the letter states.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 5 NFP memorandum decision(s))
For publication opinions today (1):
In Richard C. Gallops and Patricia A. Gallops v. Shambaugh Kast Beck & Williams, LLP, a 10-page opinion, Sr. Judge Sharpnack writes:
Richard C. Gallops and Patricia A. Gallops seek to appeal an agreed judgment claiming error in interlocutory orders entered by the trial court prior to the parties submitting the agreed judgment to the trial court who consented to it. Because Indiana has long held that no appeal can be taken from an agreed judgment, we dismiss this appeal. * * *NFP civil decisions today (1):
Although there are several issues presented in this appeal, we sua sponte raised an issue that is dispositive of this appeal; namely can a party appeal from an agreed judgment? After conducting our own research and considering the additional briefing of the issue by the parties, we conclude that long standing precedent answers that question in the negative. * * *
In the present case, there is nothing explicit in the agreed judgment concerning an appeal of any issues after entry of the agreed judgment. Indeed, the only language referring to the effect of the entry of the agreed judgment is that it would be entered on the trial court’s docket “as a final judgment” and that the “judgment will have the same effect as if the case had proceeded to trial, as it is presently postured, a verdict had been arrived at by a jury on all presently pending claims, and the Court had then entered judgment in favor of Shambaugh Kast.” Appellants’ App. p. 10. Furthermore, there is no evidence that the trial court intended for the agreed judgment to be appealable. Finally, unlike the panel in Bemenderfer, we decline to accept appellate review, and instead follow our Supreme Court’s precedent that agreed judgments are not appealable.
NFP criminal decisions today (4):
Ind. Courts - Winfield D. Ong nomination to SD Ind. approved by Senate Judiciary
From a news release issued yesterday:
WASHINGTON, DC – Senators Dan Coats (R-Ind.) and Joe Donnelly (D-Ind.) today praised the Senate Judiciary Committee’s vote to approve Winfield D. Ong to fill the vacancy on the U.S. District Court for the Southern District of Indiana. Ong’s nomination will now be sent to the full Senate for consideration.
“I applaud the committee’s vote to approve the nomination of Winfield Ong,” said Coats. “Given the ongoing judicial emergency in the Southern District of Indiana, this vacancy needs to be filled. Winfield Ong’s qualifications and outstanding record of public service make him the right person for this important position.”
“I am pleased the Senate Judiciary Committee moved Winfield Ong’s nomination forward to the full Senate,” said Donnelly. “He is an excellent nominee and has demonstrated he has the experience, ability, and temperament necessary to serve Hoosiers well on the federal bench. I urge the Senate to hold a confirmation vote on Winfield Ong as soon as possible.”
Ong, a native of Evansville and resident of Indianapolis, graduated from DePauw University and has spent most of his career working in Indiana. Ong currently serves as Chief of the Criminal Division for the U.S. Attorney’s Office in the Southern District of Indiana.
Law - "An Expensive Law Degree, and No Place to Use It"
Although Valparaiso University Law School is featured in this long Dealbook article by Norm Scheiber in the NY Times today, it is a must read for all. A sample:
Nationally, the proportion of recent graduates who find work as a lawyer is down 10 percentage points since its peak of the last decade, according to the most recent data. And though the upper end of the profession finally shows some signs of recovering, the middle and lower ranks remain depressed, especially in slower-growth regions like the Rust Belt.
As of this April, fewer than 70 percent of Valparaiso law school graduates from the previous spring were employed and fewer than half were in jobs that required a law license. Only three out of 131 graduates worked in large firms, which tend to pay more generous salaries.
“People are not being helped by going to these schools,” Kyle McEntee, executive director of the advocacy group Law School Transparency, said of Valparaiso and other low-tier law schools. “The debt is really high, bar passage rates are horrendous, employment is horrendous.”
Even as employment prospects have dimmed, however, law school student debt has ballooned, rising from about $95,000 among borrowers at the average school in 2010 to about $112,000 in 2014, according to Mr. McEntee’s group. * * *
Yet in financial terms, there is almost no way for Mr. Acosta [John Acosta, Valpo grad featured in the story] to climb out of the crater he dug for himself in law school, when he borrowed over $200,000. The government will eventually forgive the loan — in 25 years — if he’s unable to repay it, as is likely on his small-town lawyer’s salary. But the Internal Revenue Service will treat the forgiven amount as income, leaving him what could easily be a $70,000 tax bill on the eve of retirement, and possibly much higher.
Mr. Acosta is just one of tens of thousands of recent law school graduates caught up in a broad transformation of the legal profession. While demand for other white-collar jobs has rebounded since the recession, law firms and corporations are finding that they can make do with far fewer full-time lawyers than before.
Ind. Courts - Judge Mary Willis named Court's first Chief Administrative Officer (CAO)
From news just released by the Court:
After a national search, the Indiana Supreme Court has named Henry Circuit Court 1 Judge Mary Willis as its first Chief Administrative Officer (CAO). Chief Justice Loretta H. Rush said, “Mary is a tremendous leader with legal and administrative skills who will be a great asset to the Supreme Court.”
Willis will begin work in July. The Supreme Court will appoint a temporary judge to hear cases in Henry County. Division of State Court Administration Executive Director Lilia Judson is serving as Interim CAO. She will retire in September after facilitating a smooth transition to Willis.
Willis was elected judge in Henry County in 2003. She is a graduate of Ball State and the Indiana University McKinney School of Law. She is President of the Indiana Judges Association, a member of the Court’s Strategic Planning Committee, and the Indiana Judicial Conference Board of Directors.
In February, the Court announced an internal restructuring plan which created an Office of Judicial Administration (OJA). The goal is to enhance communication, clarify staff responsibilities, document institutional knowledge, plan for personnel succession, and continue to move the judiciary forward. In addition to Willis, the OJA includes 200 employees led by directors in the following departments:
· Boards and Commissions: Terry Harrell, Bradley Skolnik, Michael Witte
· Clerk: Greg Pachmayr
· Communication, Education, and Outreach: Kathryn Dolan
· Fiscal: Aaron Hood
· Judicial Center and Court Administration: Jane Seigel
· Personnel Management and Operations: Brenda Rodeheffer
· Supreme Court Services: Jason Bennett
· Trial and Appellate Court Technology: Mary DePrez and Robert Rath
Ind. Gov't. - Franklin Co. Auditor refuses access to public documents
So reports John Estridge, Editor of the Brookville American-Democrat, in this June 15th story. The long story begins:
“They have everything they need to do their job.”
That was the response from Franklin County Auditor Steve Brack over the fact his office does not provide all of the information to each and every department head and elected official that should be open and made available to them and all of the public.
Franklin County Treasurer Veronica Voelker has not been able to see the county's payroll for almost one year, and department heads and elected officials cannot see the county's complete budget. Brack cut off public access to the documents in August of 2015.
Brack is currently charged with two counts of felony Theft and is under Indiana State Police investigation for possibly altering a public document, which is also a felony.
Brack was questioned at the end of the Franklin County Commissioners Monday, June 13 meeting, during the public portion of the meeting. In previous meetings, two of the commissioners, Tom Wilson and Tom Linkel, have asked Brack why Voelker cannot see the payroll. Voelker signs the checks for the county's payroll.
Brack went so far as to ask the question at a state auditor's conference if the treasurer had the authority to see the county's payroll. It was reported the answer to the question was less than kind. Brack also asked the same question to the Indiana State Board of Accounts.
Indiana Public Access Counselor's Office also stated the county's payroll is a public document and is open to anyone to view.
In earlier meetings, Brack blamed the LOW software company for the fact Voelker could not see the payroll.
Thursday, June 16, 2016
Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 9 NFP memorandum decision(s))
For publication opinions today (3):
In Town of Reynolds v. Board of Commissioners of White County and Certain Identified Landowners Remonstrating Against Ordinance No. 2014-09-02EX-2, a 13-page opinion, Judge Bradford writes:
In January of 2015, Appellant-Defendant the Town of Reynolds (the “Town”) adopted an annexation ordinance through which it sought to annex two parcels of land. The Town, however, failed to include certain contiguous county roads in the annexation ordinance as required by statute. Appellee-Plaintiff the Board of Commissioners for White County (the “County”) subsequently filed a lawsuit seeking a declaratory judgment that the Town’s failure to comply with the relevant statute rendered the annexation ordinance void.In William R. Dixon v. Indiana Department of Correction, an 11-page opinion involving a pro se appellant, Judge Brown writes:
After determining that the Town’s failure to comply with the relevant statute did in fact render the annexation ordinance void, the trial court rendered a declaratory judgment in favor of the County. The Town appeals from this judgment. We affirm.
William R. Dixon appeals the trial court’s grant of summary judgment in favor of the Indiana Department of Correction (“DOC”). He raises four issues which we consolidate and restate as whether the trial court properly granted summary judgment to the DOC. We affirm. * * *In Byron Etter v. State of Indiana , a 13-page opinion, Judge Barnes writes:
Dixon argues that his classification as a sex offender is ex post facto punishment which he states alters his “punishment phase, restrictions, and registration requirements, which includes length of time, SOMM program, where one could live and work” and that he will experience “a new social stigma which will weight [sic] heavier on Dixon’s mental anguish than it would as being seen by society or his peers as an ex-violent offender, rather than being seen as SO/ZSO.” Appellant’s Brief at 9. He asserts that his claim is ripe for review in that he is “being harmed presently by mental anguish, defamation of character, and a possible physical harm within a prison setting.” Id. at 16.
The restated issue is whether the special judge properly denied Etter’s motion to dismiss because the trial court did not “goad” Etter into moving for a mistrial. * * *NFP civil decisions today (5):
Our review of the record, including the audio recording of the trial, reveals that, although the trial court was frustrated with defense counsel and made inappropriate comments, there is no evidence she intended to goad Etter into requesting a mistrial. Although we do not condone the trial court’s comments, we cannot say they were so damaging to Etter as to necessitate a mistrial.
NFP criminal decisions today (4):
Ind. Decisons - Supreme Court decides one today
[This is the first opinion upon which the Court's newest justice has voted.]
In Thomas L. Hale v. State of Indiana, an 8-page, 5-0 opinion, Justice Massa writes:
Thomas Hale appeals his conviction for dealing in methamphetamine, on the sole grounds that the trial court abused its discretion in failing to grant him, at public expense, depositions of two State’s witnesses. We find that our prior precedent compels us to agree with Hale and reverse his conviction, but take this opportunity to provide guidance as to how trial courts should address such motions in the future. * * *
Given these competing concerns, we believe that when the trial court denies an indigent defendant’s motion to conduct a deposition at public expense, the court should issue factual findings addressing each part of the Dillard/Crawford test. The trial judge is ultimately in the best position to consider the sincerity of the parties’ arguments regarding the three-part test, as well as the overall costs associated with the proposed depositions, and potential alternatives that may better promote pre-trial efficiency of the case. But without the benefit of knowing the trial court’s rationale, our appellate courts are forced to presume that “exculpatory or mitigating evidence would have surfaced from the depositions sought.” Murphy, 265 Ind. at 121, 352 N.E.2d at 483. Specific findings by the trial court, however, should resolve that ambiguity going forward.