Friday, October 31, 2014

Essential ILB posts: The ILB has selected its "essential posts" from the past three weeks

Continuing the ILB's new occasional Friday afternoon feature, which began with this post on Sept. 26, here is a checklist of significant ILB posts from the past three weeks you may have missed, or forgotten.

  • Mon. Oct. 13 - "Welcomed clarity: Ruling offers proper access to death certificates"

  • Tue. Oct. 14 - St. Joe bar survey "helps voters judge the judges"

  • Tue., Oct. 14 - "Scott Walker says state will recognize June same-sex weddings" Is this an issue in Indiana? ILB raises Qs about state tax guidance, the June "window"

  • Wed. Oct. 15 - Validity of same-sex marriages resulting from licenses issued during the June "window"

  • Thurs. Oct. 16 - "Social Security snag a headache for Indiana same-sex marriages"

  • Fri. Oct. 17 - AG Zoeller is appealing District Court ruling striking down current method of judge selection in Marion Co. Superior Courts

  • Mon. Oct. 20 - "The problems at the BMV stretch back at least to 2004, when the state moved to a new system for crafting and administering fees"

  • Mon. Oct. 20 - "Millions forfeit in ND Ind. drug plea deal" In Nev. federal court, some forfeitures under seal

  • Tue. Oct. 21 - "Veterans Treatment Court great for LaPorte County"

  • Tue. Oct. 21 - "Elkhart teens appeal convictions in death of accomplice"

  • Wed. Oct. 22 - "Public debate Tuesday in Lawrence about gay marriage's legality in Kansas" features Indiana Deputy AG

  • Wed. Oct. 22 - AG's office answers reporter's questions on funding of state's defense of the marriage law

  • Thurs. Oct. 23 - Judges shall receive "a compensation which shall not be diminished during their continuance in office."

  • Fri. Oct. 24 - "SCOTUS Edits a Dissent, and Admits It" The 7th Circuit, and recently, the Indiana Supreme Court, are transparent about changes

  • Sun. Oct. 26 - More on: Validity of same-sex marriages resulting from licenses issued during the June "window"

  • Mon. Oct. 27 - Eye-opening NYT story on civil asset forfeiture: Must read for attorneys and small business owners

  • Mon. Oct. 24 - "Florida Attorney General active in faraway court fights"

  • Mon. Oct. 27 - "David Camm seeks $30 million for wrongful conviction"

  • Tue. Oct. 28 - Quarantine and infectious disease in Indiana at the end of the 19th century

  • Tue. Oct. 28 - "Gay marriage blazing trails for insurers: Employers struggling for guidance"

  • Tue. Oct. 28 - Public Access Counselor opinion raises the question: Do we have "secret dockets" in Marion County?

  • Wed. Oct. 29 . - "Lobbyists, Bearing Gifts, Pursue Attorneys General"

  • Fri. Oct. 31 - Professor Frank Sullivan Publishes a Candid, Insightful Article on Indiana Constitutional Law

Posted by Marcia Oddi on October 31, 2014 01:28 PM
Posted to Essential ILB Posts

Law - "Notre Dame shifts GLBT attitude" in some areas

The South Bend Tribune has a lengthy story today by Margaret Fosmoe. A few quotes:

SOUTH BEND — Two years ago, the University of Notre Dame agreed to provide more support and services for gay, lesbian, bisexual and transgender students, including creating a university-recognized student organization.

Last year, after senior tennis player Matt Dooley came out as gay, athletic director Jack Swarbrick and members from every Fighting Irish athletic team joined together to create a video for the “You Can Play” organization, urging acceptance of GLBT student athletes.

This month, university administrators announced that, while adhering to a Catholic view of marriage, Notre Dame would recognize Indiana civil law and extend benefits to same-sex spouses of university employees.

And today and Saturday, Notre Dame will host the “Gay in Christ: Dimensions of Fidelity” conference, about ministering to GLBT Catholics. A news release from the university says the conference is to explore “pastoral strategies for Catholic parishioners who regard themselves as non-heterosexual, but who accept Catholic Church teaching on marriage and sexuality.”

Some longtime observers say the moves in recent years represent a changing landscape at the nation’s pre-eminent Catholic university, and on an issue that remains divisive among many Catholics.

The changes aren’t just happening at Notre Dame.

“Over the past decade and a half, a number of major Catholic universities have become much more inclusive toward GLBT students and employees,” said J. Patrick Hornbeck II, chair of the theology department at Fordham University. “Most institutions are doing exactly what Notre Dame is doing.” * * *

Not all of the moves have been well-received. The university’s decision to extend benefits to same-sex spouses of employees drew criticism from the Rev. Kevin Rhoades, bishop of the Catholic Diocese of Fort Wayne-South Bend. * * *

Meanwhile, Notre Dame’s leadership has remained steadfast on the issue of providing employees access to contraceptives.

The university went to court to challenge the federal Affordable Care Act’s mandate that all employers, including religious institutions, must provide contraceptive coverage as a health care benefit. An appeals court denied the university a preliminary injunction from complying with the mandate. The university is appealing the matter to the U.S. Supreme Court.

Catholic Church stances don’t always fall neatly in the same liberal/conservative boxes as political parties, said Hornbeck, the Fordham scholar. He doesn’t see as incongruent a gradual shift on GLBT issues and firm opposition to the contraceptive mandate.

Posted by Marcia Oddi on October 31, 2014 01:13 PM
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 7 today (and 5 NFP)

For publication opinions today (7):

In Michael Dwain Neal v. Amanda Lee Austin, a 10-page opinion, Judge Robb writes:

Michael Dwain Neal (“Father”) appeals the trial court’s grant of Amanda Austin’s (“Mother”) petition for post-secondary education expenses on behalf of their adult child, A.N. Father raises two issues for our review: (1) as a matter of first impression, whether the trial court had authority under Indiana Code section 31-16-6-6 to issue an order for payment of educational support for a child who had reached the age of nineteen, where the parties’ original child support order was issued in August of 2000 but the most recent order concerning child support was issued after June 30, 2012; and (2) whether the amount of post-secondary education support ordered by the trial court was an abuse of discretion. Concluding the trial court did not have authority to issue an order for educational support, we reverse. * * *

We conclude the trial court did not have authority under Indiana Code section 31-16-6-6 to issue an order for educational support for a child who was at least nineteen years of age where the parties’ most recent order concerning child support was issued after June 30, 2012. Therefore, we reverse.

In Ed Blinn v. Mark Dyer, a 5-page opinion, Judge Bailey writes:
Ed Blinn, Jr., doing business as Blinn Auto Sales (“Blinn”), appeals the small claims court’s denial of his motion to correct error, which challenged the court’s entry of judgment and award of $1,800 in damages to Mark Dyer (“Dyer”) for money Dyer paid under a layaway plan for purchase of a motorcycle from Blinn.

Concluding sua sponte that Blinn’s appeal is untimely, we dismiss. * * *

Our review of the record does not reveal that any of the listed exceptions in Trial Rule 53.3(B) or (D) apply, and Blinn’s dilatory conduct—waiting until several months after the deemed denial of the motion to correct error—did not serve the interests of orderly and speedy resolution of this appeal.

In Michael Kent Smith v. Thomas L. Taulman, II et. al., a 29-page opinion, Judge Najam writes:
The Indiana Supreme Court recently reaffirmed that Indiana’s summary judgment standards establish a “high bar” for summary judgment movants to clear. Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014). “In particular, while federal practice permits the moving party to merely show that the party carrying the burden of proof [at trial] lacks evidence on a necessary element, we impose a more onerous burden: to affirmatively ‘negate an opponent’s claim.’” Id. at 1003 (quoting Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994)). In this summary judgment appeal, we consider the plaintiff-nonmovant’s personal claims as well as his direct and derivative shareholder claims against the defendants-movants. After determining whether the trial court erred when it entered summary judgment despite pending discovery, we assess whether the summary judgment movants designated evidence to either affirmatively negate an element of the nonmovant’s remaining claims or to establish all of the elements of an affirmative defense. Where they have done so, we consider whether the nonmovant designated evidence to establish a genuine issue of material fact to preclude the entry of summary judgment. * * *

Conclusion. We hold that the trial court abused its discretion when it denied Kent’s motion to compel. As such, we reverse the trial court’s entry of summary judgment for the Appellees on Kent’s claim that Taulman had breached his fiduciary duties to Kent at the December 21, 2009, meeting and on Kent’s fraud claims against Taulman and the Employees.

As to Kent’s other claims, we hold that the Appellees are entitled to judgment as a matter of law on Kent’s defamation claim against Taulman and on Kent’s claim that Taulman breached a fiduciary duty when he fired Kent. We also hold that the Appellees are entitled to judgment as a matter of law on Kent’s claims that the Employees breached their fiduciary duties. However, we hold that the Appellees failed to designate evidence to negate at least one element of Kent’s shareholder derivative claims. Thus, we affirm in part, reverse in part, and remand for further proceedings.

In Eric Cox and Pea Cocks Corp. d/b/a Cox's Pub v. Mayerstein-Burnell Co., Inc. d/b/a MBAH Insurance and Jeff Clute

John R. Vissing, and Vissing, Grannon & Elsont, Llc (f/k/a John R. Vissing Llc) v. Clark County Board of Aviation et. al.

J.H. v. St. Vincent Hospital and Health Care Center, Inc.

Nicholas Breedlove v. State of Indiana

NFP civil opinions today (2):

M.D. v. R.M. (NFP)

Sally Applegate-Rodeman and Leslie M. Rodeman v. JDK, Llc d/b/a Livrite Fitness (NFP)

NFP criminal opinions today (3):

Richard Reeves v. State of Indiana (NFP)

Thomas Boswell v. State of Indiana (NFP)

Gregory Green v. State of Indiana (NFP)

Posted by Marcia Oddi on October 31, 2014 11:04 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - En banc hearing set by 7th Circuit for Indiana prisoner appeal

The Aug. 1st 7th Circuit opinion by Judge Easterbook in the case of Bruce Carneil Webster v. Warden John F. Caraway (ILB summary here) has been withdrawn, per this order issued Oct. 29:

The petition for rehearing en banc is granted. The opinion and judgment entered by the panel are vacated. Oral argument will be heard on a date to be set by further order.

Posted by Marcia Oddi on October 31, 2014 10:49 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Professor Frank Sullivan Publishes a Candid, Insightful Article on Indiana Constitutional Law

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

A few months ago, my colleague Professor Frank Sullivan (he prefer not to be called “Justice” or, worse yet, “Honorable/ret.”) told me he had written an article on Indiana Constitutional law. Because of his largely less than enthusiastic view of separate, expansive protections under our state charter during his 19 years on the bench, I was skeptical and immediately asked if the article was one page long.

Boy, was I in for a surprise. The 40-page article, which was recently published in the Indiana Law Review, is a must-read for any lawyer who ever plans to raise an issue of Indiana constitutional law and for judges who confront such issues. With a focus on the Shepard-Dickson-Sullivan-Boehm-Rucker court of 1999-2010, the Article is packed with insight about specific areas of the law, important doctrines, significant cases, and the justices’ approaches not only to Indiana constitutional law but their broader work as judges.

Parts I and II offer a brief history of the “Renaissance” of the Indiana Constitution, including Professor Sullivan’s partial defense of “lock-stepism,” i.e., the interpretation of “parallel state and federal constitutional provisions in accordance with federal constitutional analysis,” which critics contend “fails to recognize the independence significant of state constitutions.” Professor Sullivan offers the example of Article 1, Section 11 of the Indiana Constitution, which mirrors the text of the Fourth Amendment but has been interpreted differently. Then-Justice Sullivan dissented in favor of mirror approach shortly after joining the court but a decade later joined a unanimous court in finding a violation of Section 11 for a warrantless search of trash, something clearly allowed under U.S. Supreme Court’s Fourth Amendment jurisprudence. He candidly admits that his “voting record in this regard is not consistent.”

Part III of the Article is an important survey of the Darlington avoidance rule, i.e., “examples of the Court avoiding state constitutional questions and deciding cases on non-constitutional grounds” whenever possible. It includes a discussion of ripeness and standing under the Indiana Constitution, which differs markedly from what litigants face in federal court.

Part IV surveys significant tort cases. It begins that “[w]illing legislatures in many states have enacted statutory limitations on common law rights to recover damages in tort. In turn, those interested in preserving such rights—consumer groups, labor unions, and lawyers who represent injured persons—have looked to state constitutions for refuge.” The section discusses several cases, including McIntosh v. Melroe Co., a 3-2 opinion upholding the ten-year statute of repose provision in the Indiana Products Liability Act, rejecting challenges under the Right to Remedy and the Equal Privileges and Immunities Clauses. Professor Sullivan writes:

Justice Dickson, joined by Justice Rucker, wrote a stirring dissent that begins with what I find to be the most memorable assertion of judicial authority written by any member of the Court during my tenure: This case presented us with an opportunity to restore to Indiana’s jurisprudence important principles of our state constitution. By doing so, we could have vividly exemplified the Rule of Law notwithstanding the allure of pragmatic commercial interests.
With only those two justices remaining on the Court (but likely to leave fairly soon), might we expect the issue in Melroe to resurface?

The final section of the article includes a summary of five notable decisions, beyond those discussed previously, penned by Sullivan and each of his four colleagues. (Because his “body of work defies limitation to that number,” Justice Dickson gets eight.) Some highlights about the two remaining justices include:

“Putting ideology aside altogether, Justice Dickson’s constitutional jurisprudence reflects at times a particularly robust attitude toward the judicial review for constitutionality of the acts and actions of the political branches. His opinions discussed above striking the state’s property tax assessment regulations and calling for invalidation of the products liability statute of repose are apt but by no means exclusive exemplars of my point. (As to the ideology that his opinions reflect, well, I would say that some are conservative and some are liberal.) And even more than that, much of his work has fearlessly blazed entirely new paths of constitutional analysis.”

“One of the unwritten but inviolable rules of the Indiana Supreme Court during my tenure was that in every initial discussion of every case, the junior most justice always voted first, saying whatever he (or, in Justice Selby’s case, she) wanted to about the case. For a longer period than any other justice in state history, Justice Robert D. Rucker was the junior-most justice. And the funny thing is that I can never remember a single instance in that nearly-eleven years that Justice Rucker asked for a pass; he never once was not prepared. The same for oral argument; Justice Rucker was always prepared, invariably the best prepared. And even more than that, I have never known a judge better able to compartmentalize principle and ideology.”

The final opinion discussed is one in which the Indiana Supreme Court took a different approach from most other courts in finding that requiring sex offender registration for crimes committed before creation of the registry was retroactive punishment forbidden by Article 1, Section 24 (prohibition on ex post facto laws). The Wallace opinion has been well-received nationally since: “Justice Rucker’s opinion has been cited by courts in ten states and one federal circuit outside Indiana and an uncommon number of law review articles that praised it for its thoughtful analysis.”
________________

ILB Comment: I'd like to add one additional quote, from p. 25 of Prof. Sullivan's article:

The state constitutional jurisprudence of Justice Brent E. Dickson warrants an article (if not a book) of its own and I hope that a keen observer of Indiana constitutional law like Jon Laramore or Professor Joel Schumm — or perhaps one of Justice Dickson’s fabulously capable law clerks like Michael DeBoer, Andrea Kochert, or Maggie Smith — will compile one someday. But there is one really important thing to understand about constitutional adjudication before discussing Justice Dickson’s contributions any further. And that is the distinction between judicial activism and ideology.

Posted by Marcia Oddi on October 31, 2014 10:00 AM
Posted to Schumm - Commentary

Ind. Courts - More on: Abortion law challenge to be heard this afternoon before federal Judge Magnus-Stinson

Here is the Indianapolis Star coverage today of yesterday's hearing on the constitutionality of certain provisions of SEA 371-2013. Some quotes from the story by Kristine Guerra:

The American Civil Liberties Union of Indiana filed the lawsuit on behalf of Planned Parenthood of Indiana and Kentucky, alleging that Senate Enrolled Act 371 is unconstitutional and places an unjustifiable burden on one facility. The legislation, approved in 2013 by large majorities of the Indiana Senate and the House, changed the definition of "abortion clinic" to include facilities that don't perform surgeries but provide the abortion pill mifepristone to terminate a pregnancy.

That means the Lafayette clinic, the only facility affected by the law, needs to follow the same physical requirements as clinics that provide surgical abortion procedures. These include scrub, procedure and recovery rooms. The law doesn't apply to offices of private physicians providing the same medication.

Ken Falk, legal director of the ACLU of Indiana, said the regulations are irrational and would result in unnecessary costs for rooms that will not be used in the first place. The law does not require the Lafayette clinic to have a doctor who can perform surgical abortions, Falk said, yet it demands the facility to have the physical requirements for surgical procedures.

"You'll have a building that is surgically equipped but doesn't provide or doesn't have to provide surgical procedures," Falk said during the hearing. "The state's ground for imposing certain requirements is feeble at best."

He said, for example, if a doctor buys the Lafayette facility, it then would become a physician's clinic that's no longer subject to the same regulations, "but it's still doing the same thing."

"We're talking about an office that is exactly the same," Falk said, adding that it doesn't make sense to "regulate identical offices differently." * * *

Thomas Fisher, solicitor general for the Office of the Indiana Attorney General which represents the state, said during the hearing that Planned Parenthood has not provided any statistical proof that shows a large number of women will lose access to abortion because of the law.

Fisher said the statute requires the Lafayette facility to be "minimally prepared" in case a woman who was prescribed the abortion pill comes back to the clinic with emergency complications. The facility needs to have a physical setting "that would facilitate what might be needed if a physician decides right then and there" to perform a procedure, Fisher said.

He said the law does not call for "overwhelming reconstruction efforts" and only requires "marginal changes," such as adding a sink.

"That's all this is about," Fisher said.

He added that Planned Parenthood does tell women to come to the clinic right away for any complications.

Falk said there's no evidence that any woman has ever returned to the Lafayette clinic for any complications. Planned Parenthood also said in court documents that the abortion pill is only a miniscule portion of the Lafayette clinic's prescription practices. For the year ending July 1, 2013, 54 women were prescribed mifepristone. Other medications, mostly contraceptives, were prescribed more than 10,000 times during the same time period.

However, the state argued that the "legislature may constitutionally regulate nonsurgical abortion clinics differently from physicians' offices," according to a statement from the attorney general's office.

"The people's elected representatives in the Legislature made a policy decision in 2013 regarding the physical facilities requirements for nonsurgical abortion clinics, and the State contends the Legislature had that policy-making authority," Indiana Attorney General Greg Zoeller said in a statement.

Magnus-Stinson in November issued a preliminary injunction blocking the law from going into effect on Jan. 1. Because the injunction remains in effect, Planned Parenthood has not looked into how much such a renovation would cost, Falk said.

ILB: Here is the Attorney General's complete news release, which also includes the following explanations/disclaimers, the first of which has been included frequently over the past year or so; the second, one that I have not noticed before:
As the lawyers for state government, the Indiana Attorney General’s Office has a duty to defend the state laws the Legislature passed from lawsuits plaintiffs’ lawyers file. * * *

Defense of the statute is assigned to an in-house salaried attorney in the Attorney General’s Office, under the office’s general budget approved by the Legislature in advance. Indiana Solicitor General Thomas M. Fisher of the AG’s Office argued for the government defendants today.

Posted by Marcia Oddi on October 31, 2014 09:50 AM
Posted to Indiana Courts

Thursday, October 30, 2014

Ind. Courts - Abortion law challenge to be heard this afternoon before federal Judge Magnus-Stinson

For background, start with this Nov. 26, 2013 ILB entry, including the order granting a preliminary injunction enjoining enforcement of IC 16-18-2-15(a)(2) against the Lafayette Planned Parenthood clinic.

Kristine Guerra of the Indianapolis Star reports this morning that:

A lawsuit challenging an Indiana law that redefines abortion clinics is scheduled for oral arguments Thursday afternoon in federal court.

The American Civil Liberties Union of Indiana filed the lawsuit on behalf of Planned Parenthood of Indiana and Kentucky, alleging that Senate Enrolled Act 371 is a violation of the Fourth Amendment. The legislation, which was approved in 2013 by large majorities of the Senate and the House, changed the definition of "abortion clinic" to include facilities that don't perform surgeries but provide the abortion pill mifepristone to terminate pregnancy.

The bill requires clinics that offer only nonsurgical abortion procedures to [sic.] follow the same physical standards as clinics that provide surgical procedures. These include scrub, procedure and recovery rooms. * * *

A Planned Parenthood clinic in Lafayette is the only facility affected by the law, which does not apply to private physicians that provide the same medication. The Lafayette clinic is the only one in Indiana that only offers nonsurgical abortion procedures.

Planned Parenthood also said in court documents that the abortion pill is only a miniscule portion of the Lafayette clinic's prescription practices. For the year ending July 1, 2013, 54 women were prescribed mifepristone. Other medications, mostly contraceptives, were prescribed more than 10,000 times during the same time period.

Oral arguments are scheduled to start at 1 p.m. in the U.S. District Court for the Southern District of Indiana.

Posted by Marcia Oddi on October 30, 2014 11:17 AM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In M.J. v. State of Indiana, a 7-page opinion, Sr. Judge Darden writes:

M.J. appeals his adjudication as a delinquent child for committing resisting law enforcement as a Class A misdemeanor if committed by an adult.

We reverse M.J.’s adjudication and vacate the February 19, 2014, dispositional orders in Cause Numbers 49D09-1206-JD-1621 (CN 1621), 49D09-1209-JD-2393 (CN 2393), and 49D09-1305-JD-1286 (CN 1286), which modified prior orders and include suspended commitments to the Indiana Department of Correction.

The sole issue for our review is whether there is sufficient evidence to support M.J.’s adjudication as a delinquent child. * * *

Here, as in Gaddie and Griffin, none of M.J.’s actions suggested there was any criminal activity afoot. Without evidence demonstrating grounds for detention, we reverse M.J.’s adjudication as a delinquent. We also vacate the February 19, 2014 dispositional orders entered in CN678-098s 1621, 2393, and 1286.

NFP civil opinions today (1):

Letitia Kurabara v. Creative Real Estate Property Management (NFP)

NFP criminal opinions today (3):

Michael W. Anderson v. State of Indiana (NFP)

Christopher Hopkins v. State of Indiana (NFP)

E.I. v. State of Indiana (NFP)

Posted by Marcia Oddi on October 30, 2014 11:11 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides two today

In Wayne A. Campbell v. State of Indiana, a 9-page, 5-0 opinion in an appeal from a pro se defendant, Justice Rucker writes:

Defendant was convicted following a jury trial during which the jury was given a supplemental jury instruction on the definition of “intentionally” after deliberations had begun. Some years later, defendant petitioned for post-conviction relief alleging ineffective assistance of trial counsel, in part, for counsel’s failure to object to the instruction. The post-conviction court denied relief. And finding no error we affirm.
In Anthony Hollowell v. State of Indiana, a 10-page, 5-0 opinion in an appeal from a pro se defendant, Justice Rucker writes:
From time to time a case is presented to us that neither implicates this Court’s law-giving function, nor involves compelling issues of great public interest. This is such a case. But we elect to address the merits under the general heading of “doing substantial justice.” Here, despite a pro se petitioner’s best efforts, his attempt to appeal the denial of his petition for post-conviction relief went awry and the Court of Appeals dismissed the appeal. We grant transfer and affirm the judgment of the post-conviction court.

Posted by Marcia Oddi on October 30, 2014 08:09 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Supreme Court to hear arguments in dispute between state, IBM over canceled contract"

The oral argument is this morning at 9 AM. You may watch it here. Only four justices will hear the case; J.Massa has recused.

From an AP story this morning:

The court will hear oral arguments Thursday in the legal battle stemming from a 2006 contract that Indiana awarded the Armonk, New York-based company to automate much of the state welfare system.

Then-Gov. Mitch Daniels canceled the $1.3 billion contract in 2009 following complaints from welfare system applicants about long wait times, lost documents and improper rejections.

The two sides sued each other, and a Marion County judge awarded IBM $52 million in 2012.

The state appeals court in February found IBM failed to deliver its part of the deal, but ruled it was still entitled to nearly $50 million in fees.

Posted by Marcia Oddi on October 30, 2014 08:01 AM
Posted to Upcoming Oral Arguments

Wednesday, October 29, 2014

Ind. Gov't. - "Audit finds state child protection agency spent $627k on late fees"

From Dan Carden, this story posted this afternoon on the NWI Times website. Some quotes:

INDIANAPOLIS | The perennially cash-strapped Department of Child Services paid $627,168.82 in late fees to vendors during the 2011-13 budget years, a state audit released Tuesday shows.

Under Indiana law, state agencies are required to pay a 1 percent per month penalty when the agency fails to pay for contracted goods or services within 35 days of receiving them.

DCS racked up late fees amounting to $330,525.61 during the 2011 budget year, $115,314.63 in 2012 and $181,328.58 in 2013, according to the audit.

Agency appropriations totaled $941 million in 2011 and $793 million in both 2012 and 2013.

Rick Peterson, chief financial officer at the child protection agency, said the rash of late payments primarily was due to DCS taking over the Family and Children Fund from local governments in 2009.

That money is spent on out-of-home care for abused or neglected children, community-based family and support services, family preservation services and family reunification services, according to DCS.

Peterson said the agency recently implemented a vendor payment website to reduce invoice processing time. The website also has minimized incomplete or erroneous billings by DCS vendors, which Peterson said contributed to the high number of late payments.

As a result, he noted, DCS paid just $65,886 in late fees during the 2014 budget year, which ended June 30.

That still was the highest late fee total for any state agency and comprised 27 percent of the $240,668.14 in state tax dollars spent on late payment penalties last year, according to the state auditor's office.

The Times story includes a link to the DCS audit by the State Board of Accounts.

[More]
Sandra Chapman of of WTHR 13 reported in May of 2012 that the Indiana agencies who are the worst offenders are: "The Department of Child Services with more than a half million in late fees. The Indiana Department of Transportation with nearly a half million in late fees and FSSA Medicaid with more than a quarter of a million dollars in late fees."

Posted by Marcia Oddi on October 29, 2014 03:23 PM
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Gary Lamb v. Mid Indiana Service Company, Inc., B2 Contractors, LLC, C&M Wrecking Inc., and C&M Trucking & Excavating Inc., a 7-page opinion, Sr. Judge Sharpnack writes:

Gary Lamb, while working for Kingdom Electric, a subcontractor together with others of Mid Indiana Service Company, Inc., the general contractor for a construction project, sustained injuries when a trench partially collapsed. Lamb sued Mid Indiana and others to recover damages for his injuries. Mid Indiana moved for summary judgment and Lamb responded. Both parties designated evidence. The trial court granted summary judgment and entered final judgment for Mid Indiana. Lamb appeals. We reverse and remand.

The issue presented is whether there are any genuine issues of material fact shown in the designated evidence which preclude summary judgment for Mid Indiana. * * *

Here, although the general contractor may not have assumed responsibility for providing a safe work place for all subcontractors, by its actions through Conarro it created a condition in the work place that posed an unreasonable risk of harm to Lamb. Thus, there are genuine issues of material fact that preclude summary judgment for Mid Indiana.

In Robert A. Masters v. Leah Masters, a 7-page opinion, Judge Najam writes:
In this contentious dissolution action, the parties submitted to arbitration pursuant to the Family Law Arbitration Act, Indiana Code Sections 34-57-5-1 to -13. After several hearings, the arbitrator entered numerous findings of fact and conclusions of law, and the trial court reduced the arbitrator’s findings and conclusions to judgment accordingly. See Ind. Code § 34-57-5-7 (2014). In her findings and conclusions, the arbitrator, among other things, dissolved the marriage of Robert A. Masters (“Husband”) and Leah Masters (“Wife”); valued and distributed the vast majority of the marital assets; resolved questions of child custody, support, and parenting time; and determined the parties’ respective incomes, whether actual or imputed. In particular, the arbitrator found that Husband had an annual income of $80,000; that he must immediately pay $17,735 in back child support; that he must pay to Wife $23,965.05 in cash within 100 days of the arbitrator’s order to equalize the parties’ marital assets; that he must replenish $51,000 in the parties’ bank accounts; and that he should be awarded $93,843 in the valued portion of the marital estate. The arbitrator then ordered Husband to pay $95,000 of Wife’s attorney’s fees.

On appeal, Husband challenges only the arbitrator’s finding that he pay $95,000 of Wife’s attorney’s fees. We hold that the arbitrator’s finding is clearly erroneous because it does not consider Husband’s ability to pay Wife’s attorney’s fees in light of his earnings, living expenses, and valued assets, or in light of the other obligations the arbitrator imposed on Husband. Further, we reject Wife’s arguments on cross-appeal as well as each party’s request under Appellate Rule 66(E) for appellate attorney’s fees. * * *

In sum, the arbitrator’s order that Husband pay $95,000 to Wife for her attorney’s fees is clearly erroneous. As such, we reverse and remand on that issue. We reject Wife’s arguments on cross-appeal as well as each side’s request for appellate attorney’s fees under Appellate Rule 66(E).

In Tom Seeber v. General Fire and Casualty Company, Indiana Insurance Company, and Peerless Indemnity Insurance Company, an 18-page opinion, Judge Bradford writes:
In the fall of 2008, Appellant-Plaintiff Tom Seeber owned a commercial building located on North College Avenue in Bloomington (the “Building”). The Building was leased to Harry and Karen Kidwell, who operated Delilah’s Pet Shop. On November 3, 2008, the Building was destroyed by fire and determined to be a total loss. At the time of the fire, Seeber had an insurance policy for the Building that was issued by Appellee-Defendant General Fire and Casualty Company (“General Fire & Casualty”). The Kidwells had an insurance policy relating to their interests in the Building that was issued by Appellees-Defendants Indiana Insurance Company and Peerless Indemnity Insurance Company (collectively, “Indiana Insurance”). As a result of the fire, General Fire & Casualty and Indiana Insurance (collectively, “the Insurance Companies”) agreed that the actual cash value of the Building was $512,418.12 and the replacement cost was $650,812.70. The Insurance Companies thereafter collectively paid Seeber the full $512,418.12 actual cash value of the building.

Seeber subsequently claimed that he was entitled to receive the full $650,812.70 replacement cost of the building. Seeber filed a complaint for declaratory judgment on November 1, 2010, asking the trial court to interpret his rights under the relevant insurance policies. On December 30, 2013, Seeber filed a motion for summary judgment, along with designated evidence and a memorandum in support of his motion. Also on December 30, 2013, General Fire & Casualty and Indiana Insurance each filed motions for summary judgment, designated evidence, and supporting memoranda. The trial court conducted a hearing on all outstanding motions on March 21, 2014. On April 17, 2014, the trial court entered an order denying Seeber’s motion for summary judgment and granting summary judgment in favor of the Insurance Companies.

On appeal, Seeber contends that the trial court erred in denying his request for summary judgment and in granting summary judgment in favor of the Insurance Companies. Seeber specifically claims that the Insurance Companies were not entitled to an award of summary judgment because, under the applicable policy language, he was entitled to recover $650,812.70, the replacement cost of the building that was destroyed by fire. Concluding that the trial court properly denied Seeber’s request for summary judgment and granted summary judgment in favor of the Insurance Companies, we affirm.

NFP civil opinions today (2):

Auto-Owners Insurance Company v. Edward Foster (NFP)

Brent Wroblewski and Gretchen Wroblewski v. Angelo G. Valle (NFP)

NFP criminal opinions today (5):

Joel McGee v. State of Indiana (NFP)

Mauricio Reyes-Flores v. State of Indiana (NFP)

Alvin Donald Grisby v. State of Indiana (NFP)

James M. Burton v. State of Indiana (NFP)

Jeremy J. Turner v. State of Indiana (NFP)

Posted by Marcia Oddi on October 29, 2014 11:24 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today

In Marshall Welton v. Shani Anderson (SD Ind., Magnus-Stinson), a 10-page opinion, Judge Bauer writes:

Marshall Welton (“Welton”) sued police officer Shani Anderson, the National Bank of Indianapolis, and George Keely (collectively the “Appellees”) under 42 U.S.C. § 1983, claiming that they engaged in a malicious prosecution against him in violation of the Fourth and Fourteenth Amendments and Indiana state law. Appellees moved to dismiss Welton’s federal claims pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted Appellees’motion and, after declining to exercise supplemental jurisdiction over Welton’s remaining state law claims, dismissed the suit. Welton challenges this ruling on appeal, asserting his claims were improperly dismissed. For the reasons that follow, we affirm the district court’s dismissal.

Dismissal was appropriate because Welton never presented a viable constitutional violation in support of his § 1983 malicious prosecution claim. Therefore, the district court’s grant of the defendants’ motions to dismiss is AFFIRMED.

Posted by Marcia Oddi on October 29, 2014 11:04 AM
Posted to Ind. (7th Cir.) Decisions

Courts - "Campaign Spending On State Judicial Elections"

That is the title of today's Diane Rehm Show on NPR, which just concluded, but you will be able to listen to it here shortly. One of the guests was Indiana's Jim Bopp.

Posted by Marcia Oddi on October 29, 2014 10:46 AM
Posted to Courts in general

Courts - Plaintiffs' attorneys writing big checks to defeat Illinois justice up for retention

From the St. Louis Post-Dispatch, a long story by Paul Hampel about a judicial retention election in our neighboring state of Illinois. Some quotes:

Ten years after Lloyd Karmeier was elected to the Illinois Supreme Court in a particularly contentious and expensive race, he is facing strong opposition in his run for retention.

As in 2004, plaintiffs’ attorneys are writing big checks to try to defeat Karmeier — about $1.8 million in the past two weeks, according to campaign finance reports.

That includes $1.2 million from attorneys associated with Korein Tillery LLC. The money has funded frequent attack ads on TV. In 2004, the St. Louis-based firm contributed tens of thousands to Karmeier’s opponent in the partisan race in the court’s 5th District, covering 37 counties.

Karmeier, a Republican of Nashville, Ill., defeated then-Appellate Judge Gordon Maag, a Democrat of Glen Carbon. Together they raised $9.3 million, with business groups backing Karmeier and trial lawyers supporting Maag.

To keep the job, Karmeier needs approval of 60 percent of the voters next Tuesday.

As of Tuesday, his campaign had raised approximately $151,000. * * *

That firm stands to collect $1.7 billion in legal fees in a class-action suit against Philip Morris, a case that is under appeal before the Supreme Court. A Madison County judge issued a $10.1 billion judgment against the company in 2003, finding that it falsely advertised its “light” cigarettes as safer. The verdict was reversed in 2005 by the state Supreme Court and has found its way back on appeal.

[More] See also this Oct. 27th NY Times column by Joe Nocera, headed "Are Our Courts for Sale?."

Posted by Marcia Oddi on October 29, 2014 10:31 AM
Posted to Courts in general

Ind. Gov't. - "Lobbyists, Bearing Gifts, Pursue Attorneys General"

Supplementing this ILB post from Monday headed "Florida Attorney General active in faraway court fights" quoting a long Miami Herald story about the politicization of state attorneys general offices and the use of amicus briefs to promote political agendas, the NY Times today has a very long story by Eric Lipton titled "Lobbyists, Bearing Gifts, Pursue Attorneys General." Apparently it is the first in a series, as a subhead reads:

Courting Favor. Articles in this series will examine the explosion in lobbying of state attorneys general by corporate interests and the millions in campaign donations they now provide.
Today's story is accompanied by many attachments, introduced by: "Here is a look at some of the organizations and players that are part of the fast-growing and largely secretive world of lobbying state attorneys general."

The NY Times summarizes the article: GIFTS RULES AND STATE AGS. NYT. “Attorneys general are now the object of aggressive pursuit by lobbyists and lawyers who use campaign contributions, personal appeals at lavish corporate-sponsored conferences and other means to push them to drop investigations, change policies, negotiate favorable settlements or pressure federal regulators, an investigation by The New York Times has found.”

Posted by Marcia Oddi on October 29, 2014 09:47 AM
Posted to Indiana Government

Ind. Decisions - "Appeals court clears way for Broad Ripple development" Why is this NFP?

Good Earth Natural Foods, and Patrick Skowronek v. Metropolitan Development Commission, City of Indianapolis and Broad Ripple Associates, Llc. (NFP), decided yesterday by the Court of Appeals, is the subject of several stories today, including this one from WISHTV8. From the story:

[The opinion] upholds the dismissal of a lawsuit brought by Good Earth Natural Foods and nearby resident Patrick Skowronek, who filed an appeal in March over the granting of a zoning change to the project last year. The appeal was dismissed by a Marion County judge over the summer because required paperwork wasn’t submitted by court-imposed deadlines.

The appeals court concurred with that decision on Tuesday, clearing the way for demolition by Indianapolis-based Browning Investments to begin.

The $30 million development has drawn criticism from some Broad Ripple residents and nearby business owners as being out of character with the neighborhood. It includes 120 apartments, a four-story parking garage and a grocery store — at one time believed to be a Whole Foods, though that’s not certain now. The project would be backed by Tax Increment Finance District funding. Developers have argued it will spur further economic development and revitalize the area.

Skowronek, and others living in apartments just east of 64th Street and College Avenue near the canal are in the path of the project, and were issued notices of lease termination in August. They have until Oct. 31 to move out.

As the news reports attest, this decision was a matter of public interest. Further, the Court itself had decided the issues warranted oral argument:
Oral argument was conducted on October 1, 2014. We thank counsel for the helpful discussion of the issues presented in this case.

Posted by Marcia Oddi on October 29, 2014 09:25 AM
Posted to Ind. App.Ct. Decisions | Why is this NFP?

Tuesday, October 28, 2014

Ind. Decisions - Supreme Court decides one today

In Michael E. Lyons, Individually; Denita L. Lyons, Individually et. al. v. Richmond Community School Corporation D/B/A Richmond High School; Joe Spicer et. al., a 13-page, 5-0 opinion, Justice Massa writes:

The parents of a child who choked to death during lunchtime in a high school cafeteria sued the school and several administrators. The trial court granted defendants’ motion for summary judgment. We reverse. * * *

The Lyonses assert the trial court erred by granting RCSC’s motion for summary judgment on the issue of their compliance with the ITCA notice requirement. The ITCA bars tort claims against political subdivisions like RCSC unless the plaintiffs file a Notice of Tort Claim within 7 180 days “after the loss occurred.” Ind. Code § 34-13-3-8(a) (2008). Here, Megan’s death occurred on January 10, 2009, but the Lyonses filed their Notice of Tort Claim on January 11, 2010—long after the 180-day time period had ended. The Lyonses, however, argue their noncompliance should be excused under one of three alternative theories: substantial compliance, the discovery rule, or fraudulent concealment.

A. Substantial Compliance

As to the first of these, substantial compliance, we agree with the Court of Appeals that “substantial compliance cannot exist ‘when the claimant took no steps whatsoever to comply with the notice statute.’”* * *

B. The Discovery Rule

As to the discovery rule, we again find ourselves in agreement with the panel below. * * *

C. Fraudulent Concealment

Finally, the Lyonses argue the defendants should be estopped from asserting their ITCA notice defense because they fraudulently concealed the existence of the Lyonses’ claims. “Fraudulent concealment is an equitable doctrine that operates to estop a defendant from asserting the statute of limitations as a bar to a claim whenever the defendant . . . ‘has, either by deception or by a violation of duty, concealed from the plaintiff material facts thereby preventing the plaintiff from discovering a potential cause of action.’” [cites omitted] In such cases, equity will toll the commencement of the applicable time limitation until such time as the plaintiff discovers, or in the exercise of ordinary diligence should discover, the existence of the cause of action. * * *

1. Active Fraudulent Concealment

* * * Based upon that record, a factfinder could reasonably find the defendants committed active fraudulent concealment. [cite omitted] Thus, the trial court erred by granting the defendants’ motion for summary judgment on this issue.

2. Passive Fraudulent Concealment

Passive fraudulent concealment requires (1) a relationship between the parties such that the defendant has a duty to disclose the alleged wrongful act to the plaintiff and (2) a breach of that duty. * * *

Finally, although we are sympathetic to the Lyonses’ public policy arguments, we must decline their invitation to establish a completely new legal duty here. But we encourage our General Assembly, charged with making policy for our state, to consider this issue carefully. It may be that, in this age of near-universal and compulsory education, when our schools provide myriad counselling, physical therapy, recreation, and special needs assistance for our children, they should be required to disclose vital information about a student to the persons most intimately concerned—the student’s parents. * * *

Conclusion

We remand this case to the trial court for further proceedings consistent with this opinion.

Posted by Marcia Oddi on October 28, 2014 04:26 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Public Access Counselor opinion raises the question: Do we have "secret dockets" in Marion County?

Court Times, a publication of the Indiana Courts, has posted a June 26, 2014 article by Ruth Reichard titled "Sealing Court Records: The How and the Why (Not)."

"Trial courts sometimes find themselves presented with a motion to seal the case records," the author writes, but "once a case has been filed, what can a judge do? Can we 'put the toothpaste back into the tube?'" The article continues:

The default answer to this question is “no—not easily.” After all, Article 1, Section 12 of the Indiana Constitution states in pertinent part that “All courts shall be open . . .” The first section of Indiana’s Access to Public Records law, at Ind. Code 5-14-3-1, likewise contains a strong, unequivocal statement that “it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.” Further, the statute “shall be liberally construed to implement this policy and place[s] the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record . . .” Nevertheless, section 5.5 of the statute does offer a legal means by which courts can seal records. [ILB - access IC 5-14-3, the Access to Public Records Act (APRA), here]

So, assuming that a party has properly filed a motion to seal the case records under Ind. Code 5-14-3-5.5, can a judge simply decide it has merit and grant the motion without a hearing?

No. The court must hold a public hearing—at which the judge must consider any testimony and written briefs submitted by members of the general public, as well as the parties—the court must also post notice of the hearing in the courthouse. At the hearing, the person asking to seal the records must prove by a preponderance of the evidence that the need for the extreme remedy of secrecy outweighs the public policy of open records. * * *

If, after holding a hearing, the judge decides to seal all or part of the record, the order must contain findings of fact and conclusions of law. Finally, the statute also requires that the records be “unsealed” at the earliest possible time once the circumstances necessitating secrecy no longer exist.

Yesterday the ILB read an Oct. 24, 2014 advisory opinion from Public Access Counselor (PAC) Luke Brett, Re: Formal Complaint 14-FC-221; Alleged Violation of the Access to Public Records Act (“APRA”) by the Marion County Clerk."

The complaint, filed by George W. Pendygraft, was that the Marion County Clerk had violated the Access to Public Records Act (“APRA”), Ind. Code § 5-14-3, by failing to provide "a copy of the case file in a named lawsuit filed in Marion County Superior Court 4." However, as the PAC writes in the opinion, "the records you sought had been sealed by the Court and the file was not disclosable public record. * * * [The Court] entered an order on September 4, 2014 sealing the records in question. The issue as I see it is whether the Court properly sealed the records under the Access to Public Records Act." [The ILB has added some boldface emphasis in this and subsequent quotations from the PAC order.]

From the PAC opinion:

The Access to Public Records Act addresses how and under what circumstances a court may seal a public record. Ind. Code § 5-14-3-5.5 states:
(a)This section applies to a judicial public record.
(b) As used in this section, "judicial public record" does not include a record submitted to a court for the sole purpose of determining whether the record should be sealed.
(c) Before a court may seal a public record not declared confidential under section 4(a) of this chapter, it must hold a hearing at a date and time established by the court. Notice of the hearing shall be posted at a place designated for posting notices in the courthouse. * * *
Clearly the discretion to seal a record lies with the presiding Judge; however, it is also clear the procedures enumerated in subsection 5.5 must be followed. According to the Court’s order in 49D04-1312-PL-045851, the parties appeared for a status conference at which time the co-Defendant made an oral motion to the Court to seal the records in the case. It does not appear any notice of the proceeding was given and the public did not have an opportunity to testify or file a brief.

The obligation to hold such a hearing is on the presiding Judge. I spoke with the Honorable Cynthia Ayers, Judge of the Marion County Superior Court 4 and she indicated her decision to not hold a hearing was based on her decision confidential attorney-client communication was scattered amongst the documents. Because that kind of communication is declared confidential by several Indiana authorities, she sealed all the records in the case. Furthermore, she feared a hearing would compromise the integrity of the privilege as attorneys may have to give testimony regarding the communication itself.

You clearly disagree with the Judge’s determination; however, that is a matter of law and under the jurisdiction of the court. There are alternative appellate remedies if you take exception with her ruling and choose to intervene, however, none of those remedies may be issued by the Indiana Public Access Counselor.

Some background. In 2006 the ILB has a number of posts about an Orange County casino situation where the judge sealed an entire lawsuit, including the docket itself, for nearly two months. In a June 20, 2006 post, the ILB wrote:
This is a matter of enormous local, and indeed, state-wide interest. I'm told that reporters were even unable to confirm last week that a suit had been filed. Although the ILB has had a number of entities about 'secret dockets' in other states, apparently we do have some in Indiana also.
From an Aug. 1, 2006 post, quoting a story by Roger Moon in the Bedford Times-Mail:
PAOLI - Court documents involving two Orange County casino lawsuits were made available for public review in a decision that came this morning in Orange Circuit Court.

Orange Circuit Court Judge Larry Blanton had sealed the records in early June.

He said today, “I took the unusual and unprecedented action for a variety of reasons.” One reason, Blanton said, was to allow him more time to research the law. He said, “I acted with an overabundance of caution.” * * *

At the parties' request, the documents were sealed, meaning closed to the public. Lauth and Cook have agreed not to discuss the lawsuits publicly.

Steve Ferguson, chairman of the Bloomington-based Cook Group, Inc., said after the hearing, “Of course, you would like to keep this kind of dispute between the two parties, but we clearly understand what the law says.”

Today's ruling came after attorneys for newspapers argued that the records should be made public and that neither Cook nor Lauth representatives had met the burden of proof on why the cases should remain sealed.

Angela Parker, an attorney representing a number of newspapers, including the Times-Mail and its sister newspaper, the Herald-Times of Bloomington, said in court, “The public wasn't informed and didn't know why (the cases were sealed). The need to speculate put the public at a disadvantage.”

Arguments for opening the case also were presented by the Indiana Attorney General's office. Attorney General Steve Carter, in a statement released over the weekend, said, “Judicial proceedings regarding gambling should be subject to public observance and review. The public's interests are likely to be impacted by litigation between these two private entities. Any time there is government involvement with respect to the gambling industry, it should be subject to heightened public scrutiny.”

Back to the Marion County case. According to the Oct. 24, 2014 PAC opinion, the judge "sealed all the records in the case." The PAC opinion does not give the name of the case. At one point on p. 2 a reference is made to "the Court’s order in 49D04-1312-PL-045851," but the ILB has been unable to locate any cases that matched this search criteria.

Is this an example of a secret docket in a Marion County court? Or is there another explanation?

Posted by Marcia Oddi on October 28, 2014 02:11 PM
Posted to Indiana Courts | Indiana Government

Ind. Law - "Gay marriage blazing trails for insurers: Employers struggling for guidance"

The Sunday Fort Wayne Journal Gazette has this lengthy story by Sherry Slater, some quotes:

Since Oct. 6, when the U.S. Supreme Court declined to review lower court rulings that allowed gay and lesbian unions, some employers have been scrambling for guidance on whether they have to offer identical benefits to same-sex spouses as they do to opposite-sex ones.

Lawyers, insurance companies and other advisers are studying the legalities and loopholes as they field anxious phone calls from clients.

At least one major insurance company providing coverage in the region has declared a special sign-up period for husbands and wives of gay and lesbian policyholders.

“I’m knee-deep in same-sex stuff,” said Tom Markle, an employee benefits attorney and partner with local firm Barrett & McNagny. “Some very large organizations are almost freaking out right now.”

Do they have to offer coverage to same-sex couples? The answer: It depends.

Markle wants to set the record straight on one misconception: The federal government is not making employers provide health insurance and other benefits to same-sex spouses.

“The federal law doesn’t require coverage of any spouse for any reason to begin with,” he said.

Most employers offer health care insurance and other benefits to full-time employees as a way to attract talented workers. But that, he said, is optional.

Defining terms

If an employer chooses to offer health insurance to employees and their spouses, even then, it might not have to cover same-sex spouses.

It depends on whether the employer has a fully insured health plan or a self-funded one.

Fully insured plans place the risk of offering coverage on insurance companies, which charge a per-employee premium that varies depending on the size of the workforce and its previous insurance usage.

Most smaller companies – those with fewer than 200 workers – have fully insured plans.

Self-funded plans place the risk on the employer, which sets aside the amount of money it would have paid in premiums and instead uses that money to pay the covered portion of hospital and doctor bills.

This option, which is more popular with large companies, represents about 55 percent of workers with health insurance, according to data from Employee Benefit Research Institute, a nonprofit, nonpartisan research institute based in Washington.

Many self-insured plans hire an insurance company or other outside firm to handle the plan’s paperwork. Local examples of these third-party administrators include Employee Plans LLC, a subsidiary of Old National Insurance, and Pro-Claim Plus Inc.

Because those company names often appear on health insurance-related paperwork, some workers don’t even realize their employer has a self-funded plan, Markle said.

That is just the start. Keep reading the very long story here.

Posted by Marcia Oddi on October 28, 2014 01:40 PM
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 5 today (and 7 NFP)

For publication opinions today (5):

In Lbm Realty, Llc, d/b/a Summer Place Apartments, an Indiana Corporation v. Hillary Mannia, an Indiana Resident, a 27-page opinion, Chief Judge Vaidik writes:

Following a fire in an apartment building owned by LBM Realty LLC d/b/a Summer Place Apartments (LBM), LBM’s insurance company Greater New York Mutual Insurance Company (Insurer) filed an insurance subrogation action in LBM’s name against LBM’s tenant, Hillary Mannia. Mannia filed for summary judgment, urging the trial court to adopt a no-subrogation rule—citing Sutton v. Jondahl, 532 P.2d 478 (Okla. Ct. App. 1975), and its progeny as support—which would preclude LBM’s complaint against her. The trial court granted summary judgment in favor of Mannia, and LBM now appeals. We find that Indiana law supports a largely case-by-case approach to subrogation actions by a landlord’s insurer against a tenant and, therefore, does not preclude LBM from pursuing its claims against Mannia, at least with respect to damage to the leased premises. Accordingly, we affirm in part, reverse in part, and remand with instructions. * * *

In sum, the trial court should analyze all relevant and admissible evidence in order to determine the parties’ expectations and should weigh and balance the equities of the case—as well as addressing the issue of Mannia’s negligence—in order to determine Mannia’s liability for the damage to the leased premises.

In In Re the Adoption of: I.B. and W.B., (Minor Children) and B.B. v. B.C. & J.L., and The Indiana Department of Child Services, a 13-page opinion, Judge Friedlander writes:
Appellant, the paternal grandmother of I.B. and W.B., appeals the grant of maternal grandmother and her fiancé’s (collectively referred to as Adoptive Parents) petitions to adopt I.B. and W.B. * * *

The sum of Appellant’s claim appears to be that DCS’s failure to fully investigate placement with her resulted in a denial of due process. She provides no relevant authority in support, and we find her vague assertion of a due process violation unavailing.

In Paul Allen Decker v. State of Indiana , a 16-page opinion, Judge Brown writes:
On December 3, 2012, Bloomington Police Detective Brandon LaPossa was advised by his sergeant that the library had called and said a male was looking at child pornography. Detective LaPossa went to the library and met with Dana Geldof, a security guard at the library. Geldof informed Detective LaPossa that there was a male looking at pictures of child pornography. Geldof identified computer number thirty-four as the computer where the person was sitting. At this point, Decker was sitting at a table just across from the computer. * * *

Detective LaPossa looked at the computer screen and observed several images of different aged children in diapers posed in different positions, some of which Detective LaPossa thought were sexual positions, and that there were “at least probably thirty” images. Id. at 13. He testified that the children were “anywhere from an infant to approximately twelve years old,” and “[s]ome of them looked family and some of them looked like they were specifically posed in a certain way.” Id. at 19. During cross-examination, when asked whether he interpreted the photos at the library as being posed in sexual positions, he answered “[s]ome of them, I did, yes, ma’am.” Id. at 51.

Based upon the record, we conclude that Detective LaPossa had probable cause to arrest Decker. Accordingly, we cannot say that the trial court erred in denying Decker’s motion to suppress.

In Arthur Dale Miller v. State of Indiana, a 9-page opinion, Judge Pyle writes:
This case is a reminder that we will not allow a defendant to have two bites at the proverbial appellate apple, especially when it happens with the assistance of a trial court that should have dismissed the underlying motion for lack of jurisdiction.

Arthur Dale Miller (“Miller”) previously initiated an appeal of the trial court’s denial of his motion to hold the Jay County Sheriff in contempt for failing to transport him to the Department of Correction within five days of his sentencing. Our Court dismissed his appeal based on his failure to properly serve the proper party with his notice of appeal. Miller then sought to set aside the order denying his contempt motion and to have the trial court re-enter a judgment on his contempt motion so that he could re-appeal the trial court’s order. The trial court granted Miller’s request, and Miller now attempts to re-appeal the denial of his contempt motion.

Because we find that the trial court did not have jurisdiction to rule on Miller’s contempt motion based on Miller’s lack of standing and because Miller’s challenge was nevertheless rendered moot when he was transferred to the Department of Correction, we dismiss this appeal.

In Jason D. Swallow v. State of Indiana, a 10-page opinion, Judge May writes:
Jason D. Swallow appeals his conviction of murder. He raises four issues on appeal:
1. Whether a special prosecutor should have been appointed when Swallow’s public defender withdrew as counsel and became employed by the Wayne County Prosecutor;
2. Whether permitting the jury to hear Swallow’s recorded statement that he was a drug dealer violated Indiana Evidence Rule 404(b);
3. Whether Swallow’s conviction is supported by sufficient evidence; and
4. Whether his sixty year sentence is inappropriate. * * *

As no confidential information Dean obtained was shared with the prosecutor’s office, the trial court did not err in denying the motion to appoint a special prosecutor. * * *

The trial court did not err in admitting Swallow’s statement. See Embry v. State, 923 N.E.2d 1, 10 (Ind. Ct. App. 2010) (probative value of uncharged misconduct was not so substantially outweighed by its potential for unfair prejudice that it should have been excluded under Rule 403 when trial court gave a limiting instruction and admonished the jury that the defendant’s prior misconduct was not admitted to demonstrate character or prove action in conformity therewith), trans. denied. * * *

The trial court was not obliged to appoint a special prosecutor, admitting Swallow’s statement he was a drug dealer was not error, there was sufficient evidence to support the conviction, and Swallow’s sentence was appropriate. We accordingly affirm.

NFP civil opinions today (3):

In the Matter of the Termination of the Parent-Child Relantionship of : G.B,, D.B., Li.B., C.B., & Z.B., Minor Children and L.B., Father v. The Indiana Department of Child Services (NFP)

In Re the Marriage of Reba M. Dunagan and Joseph Dunagan, Joseph Dunagan v. Reba Michele Dunagan (Clinkenbeard) (NFP)

Good Earth Natural Foods, and Patrick Skowronek v. Metropolitan Development Commission, City of Indianapolis and Broad Ripple Associates, Llc. (NFP)

NFP criminal opinions today (4):

Harry H. Robertson v. State of Indiana (NFP)

Antonio Manuel v. State of Indiana (NFP)

Remington Diaz v. State of Indiana (NFP)

Jeffrey R. Hill v. State of Indiana (NFP)

Posted by Marcia Oddi on October 28, 2014 11:01 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts a second Indiana opinion from Oct. 27th

In Frederick V. Greene v. U.S. Dept. of Education (ND Ind., Van Bokkelen), a 5-page opinion, Judge Posner writes:

This appeal requires us to decide what is needed to make a counterclaim compulsory. The plaintiff, Frederick Greene, appeals from a judgment direct-ing him to repay his student loan debt to the federal De-partment of Education. The judgment is based on a counterclaim filed by the Department to Greene’s complaint, which sought to enjoin the Department from collecting his student debt by garnishment of his wages or any other measure. The judge ruled that the Department’s counterclaim seeking a judgment ordering Greene to repay the debt was not barred, either as a compulsory counterclaim in a previous litigation or by res judicata or collateral estoppel. * * *

We therefore agree with the district court that the Department’s counterclaim is not barred. As for Greene’s alternative grounds for barring the Department’s claim for repayment of his student loans — res judicata and collateral es-toppel — they fall with his compulsory-counterclaim argument.

Posted by Marcia Oddi on October 28, 2014 10:33 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Noble County Courthouse marks its 125th anniversary

From a column Oct. 26th by Terry Housholder in the Kendallville KPC News:

The 125th anniversary of the dedication of the majestic Noble County Courthouse, which towers over the town of Albion, was marked last week without fanfare.

The courthouse was designed by renowned architect Edward Oscar Fallis. The cornerstone for the Romanesque structure was laid on May 29, 1888, and the dedication took place on Oct. 15, 1889.

Among the speakers at the dedication was 35-year-old attorney Thomas Riley Marshall of Columbia City, who later rose to national political prominence. Marshall, a Democrat, served as Indiana governor from 1909-1913, and was vice president of the United States from 1913-1921 under President Woodrow Wilson.

Here, via Wikipedia, is a photo of the Noble County Courthouse.

Posted by Marcia Oddi on October 28, 2014 10:17 AM
Posted to Courts in general

Ind. Gov't. - "Two new services for obtaining digital records at the Allen County recorder's office."

Some quotes from the story by Vivian Sade in the Fort Wayne Journal Gazette:

Allen County Commissioners agreed Friday to add two new services for obtaining digital records at the county recorder's office.

The new services will hopefully increase the number of users by offering a lesser monthly subscription price than in the past for online document retrieval services, said Chief Deputy Recorder Anita Mather.

The recorder's office has records dating back to 1816 and provides access to numerous types of documents, including home deeds and mortgages, military discharges, property plats and title insurance.

Before the new services were offered, the minimum subscriber service was $50 a month for up to 250 minutes of use.

The new $25 subscription is designed for patrons who use the services up to for up to 100 minutes a month, Mather said.

The less expensive subscription should attract those who use the services on a regular basis, but do not need the larger subscription, she said.

“Attorneys would be a good example,” she said.

The move should also increase revenue about $5,000 annually, from $70,000 to $75,000, Mather said.

The second new service is targeted toward any company that wishes to purchase multiple subscriptions.

Subscribers can now add additional subscriptions for $100 a month.

“Before they had to pay the regular price of $250 for the unlimited service and for each add-on, so now if they want to add a second (subscription), they will pay $350 instead of $500,” Mather said.

Title companies are an example of the type of patron who frequently uses the unlimited-minutes service and utilizes more than one subscription, she said.

The Allen County Recorder's Office also has:
... an on-demand service designed for occasional users. Users pay $5.95 per search and 75 cents per page for each document PRINTED. Documents can be viewed at no charge. No user agreement is required and there is no recurring expense other than search and document charges.

Posted by Marcia Oddi on October 28, 2014 10:06 AM
Posted to Indiana Government

Ind. Gov't. - Quarantine and infectious disease in Indiana at the end of the 19th century

One of my prize possessions is a copy of The Hoosier Health Officer, A Biography of Dr. John N. Hurty. Hurty was Secretary of the Indiana State Board of Health from 1896 until about 1922.

The book quickly reminds one that it is not that long ago that the control of infectious disease was one of the most basic functions of Indiana government. Here are a few quotes from p. 81 of the volume:

Diphtheria had been epidemic in all parts of the State for two or three years when Hurty came into office. He threw himself into the fight with a zeal for health which had never been seen before in Indiana. There are so many tales to tell of his efforts to stamp out the disease that it is hard to choose a particular one as being the most interesting. We shall let him tell of his experiences at West Baden and French Lick (Indianapolis News, Sept. 15, 1896):
J.N. Hurty, secretary of the State Board of Health, reached home this morning after an experience with a diphtheria epidemic in Orange county. He found a telegram awaiting him from Mitchell, also at once, as the disease bad broken out there. The telegram was from the clerk and auditor of the county.

"The towns of West Baden and French Lick have been quarantined against this district. A proclamation has been declared enforcing the strictest of quarantine and sanitary regulations. There are, or have been seventy-five cases in the district and twenty deaths, but I believe the cases will now be controlled. Supplies of disinfectants, antitoxin and other things needed have been left where they can be had. Filth and an utter disregard of sanitary regulation as to carding houses, public funerals, etc. are causes of this epidemic, and it would be better for the whole community if some of the worst infected places could be destroyed by fire."

In his struggle to find ways of stopping the dread disease he made great effort to find the best methods of quarantine and isolation. It was comparatively easy to say what should be done but very hard in those times to get quarantine enforced. In particular it was hard to get the doctors themselves to understand what was needed. Many of the physicians of that time had never been to a real medical school and by far the most of them had never had any sort of course in bacteriology. It was customary in those times for the physician to carry in his pocket a metal tongue depressor which folded up like a knife, and was used on one patient after another without any sort of adequate disinfection. There was much derision when Hurty advocated that the doctors provide themselves with little wooden paddles or tongue depressors which were to be burned after being used once. * * *

The State Board of Health made a set of rules which required that the physicians should provide themselves with a gown which they would wear when visiting an infectious case such as diphtheria, scarlet fever or smallpox. Explicit directions were set out as follows (Ind. Med. J. 15 : 231-233):

Rule 1. When visiting patients known to be sick with smallpox, scarlet fever, diphtheria or other contagious disease, physicians shall clothe themselves in a specially provided clean lined duster, oil cloth or rubber coat, and a tight-fitting cap made of silk, linen, oil cloth or rubber. The cap shall well cover the hair. Before leaving the house, physicians shall cleanse hands and face with antiseptic soap and water, and use a disinfectant upon hands and face. The coat, cap, antiseptic soap, bottle of disinfectant, etc. shall be carried in a special glazed leather valise, together with a pad of cotton, which is to be kept wet with formaldehyde.
This requirement was met with much resistance by the physicians. The members of the Shelby County Medical Society (Ind. Med. J. 15: 297-298) were very outspoken in their criticism.

Posted by Marcia Oddi on October 28, 2014 09:20 AM
Posted to Indiana Government

Monday, October 27, 2014

Ind. Decisions - 7th Circuit decides one Indiana case today

In USA v. Trevor Hinds (SD Ind., Pratt), a 19-page opinion, Judge Kanne writes:

Defendant-Appellant Trevor Hinds appeals the district court’s imposition of a two-level sentencing enhancement for production or trafficking under U.S.S.G. § 2B1.1(b)(11)(B)(i), as well as two special conditions of his supervised release: one requiring him to pay a portion of his court-ordered substance abuse treatment and drug testing and the other requiring him to submit to suspicionless searches and seizures. For the reasons set forth below, we affirm the twolevel enhancement but vacate the two special conditions at issue. Accordingly, we remand for re-sentencing.

Posted by Marcia Oddi on October 27, 2014 06:30 PM
Posted to Ind. (7th Cir.) Decisions

Courts - More on "Pennsylvania Supreme Court Justice McCaffery Suspended over Porn Emails "

Updating this ILB post from Oct. 22, the Indiana Pennsylvania Gazette is reporting, in an AP story by Mark Scolforo and Marc Levy, that:

HARRISBURG, Pa. (AP) — A Pennsylvania Supreme Court justice caught up in a government porn email scandal stepped down Monday after nearly eight years on the state's highest court, and a judicial ethics board said it would drop its investigation of him as a result.

Justice Seamus McCaffery also agreed not to seek senior judge status or seek elective judicial office again, the Judicial Conduct Board said.

The panel said it would end its investigation of McCaffery on a number of matters because the most serious sanctions possible were his removal from office and a prohibition against him holding future judicial office.

Posted by Marcia Oddi on October 27, 2014 05:03 PM
Posted to Courts in general

Courts - "Op-Ed: A Call to Expose the Unnecessary Secrets of the Supreme Court"

Prof. Rick Hasen had an op-ed in the National Law Journal this weekend that ended with four recommendations for the SCOTUS (emphasis by ILB):

First, the court should publicly announce when it makes a change in a previously published opinion. It remains, in Chief Justice John Marshall’s words, the province and duty of the judicial branch to say what the law is. But this rule presupposes we all have access to the judiciary’s pronouncement of what the law is.

Second, publicly announce the court’s schedule and release of opinions in advance. Why should it be a secret whether and when the court is going to announce opinions? The California Supreme Court, for example, gives notice of forthcoming filings before they are issued, so that the news media and public can be prepared for coverage.

The same goes for court orders. Their timing is not a matter of national security. When everyone was waiting a few weeks ago for the Supreme Court to announce whether it would hear the same-sex marriage cases, there was no public indication of the release date (it came a few days after the justices met in conference). I posted on my blog a rumor of the release time, a rumor that turned out to be correct, but I was criticized for discussing such information.

Third, make all briefs and filings in the case available on the court’s website and keep the site functional and up to date. Many appellate courts have websites that allow easy access to party briefs and other documents. The Supreme Court’s website does not. Even after a recent revamp, it is barely searchable, with search results sometimes appearing in random order. To find key documents in a court case, one must turn to private sources such as the website of the American Bar Association or to SCOTUSblog.

None of this material is secret, and no one should have to go on a treasure hunt for key documents in cases of national importance.

Finally, make all information released to the Supreme Court press corps available to all of the public. Ginsburg deserves praise for announcing the change in her Texas voter identification dissent. But one searches the court’s website in vain for her announcement. Instead, the announcement ironically was sent only to some members of the press corps.

These basic steps toward transparency would allow the public to better understand the court’s important work, and end practices that serve no purpose other than to unduly mystify the public.

See also the Oct. 24th ILB post, "SCOTUS Edits a Dissent, and Admits It."

Posted by Marcia Oddi on October 27, 2014 11:27 AM
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Re the Adoption of K.W.: M.W. v. S.L. and T.L.

Richard I. Spiece Sales Co., Inc. d/b/a Spiece Sales Co., Inc. v. Levi Strauss North America

David T. Hays and Amanda G. Hays v. Deborah J. Wise

NFP civil opinions today (0):

NFP criminal opinions today (7):

Juaquin Diaz-Delreal v. State of Indiana (NFP)

Uriah Booker v. State of Indiana (NFP)

Roy Lee McGraw v. State of Indiana (NFP)

Pepper M. Glisson v. State of Indiana (NFP)

Mark Bender v. State of Indiana (NFP)

Shelley L. King v. State of Indiana (NFP)

Trevin Hornbeak v. State of Indiana (NFP)

Posted by Marcia Oddi on October 27, 2014 11:24 AM
Posted to Ind. App.Ct. Decisions

Ind. Law - Indianapolis Star reporting/editing errors continue [Updated]

For example, in today's Indianapolis Star in a story about the Marion County prosecutor race between Terry Curry and Duane Merchant, the headline has "Duanne". But that is not the most egregious error, in the body of the story by Kristine Guerra is this paragraph:

"We came into office at a time when morale at the prosecutor's office and its public image were at an all-time low," said Curry, who won the race in 2010 over Republican Mark Mazza. "We've made specific commitments in what we're going to do."
As a reader wrote:
I noticed the errors in the print edition and as of a few minutes ago, they were still in the online edition. I realize the reporter isn't responsible for the misspelling in the headline, but as the courts and law reporter for the Indy Star, you'd think she'd know how to spell the name of Indiana Supreme Court Justice Mark Massa.
[Updated at 6:00 PM] It appears that at 3:56 PM. the errors in the online version (but of course not this morning's printed version) were corrected. Unlike some other papers*, the Star does not note subsequent corrections at the bottom of the story.
________
*For instance, this Oct. 17th NYT story has several corrections noted at the end, including:
Correction: October 17, 2014
An earlier version of a map with this article misspelled the name of a senator for New Hampshire. She is Jeanne Shaheen, not Shasheen.

Posted by Marcia Oddi on October 27, 2014 11:11 AM
Posted to Indiana Law

Ind. Decisions - "Appellate court: Man's local sentence can't be tied to another county"

David G. Taylor v. State, an Oct. 22nd NFP Court of Appeals opinion with a pro se appellant, that concluded:

The trial court’s consecutive sentencing order is facially erroneous, under the statute in existence at the time of Taylor’s sentencing, and must be corrected. We reverse and remand for correction of the sentencing order in accordance with this opinion.
is the subject of a story today in the Anderson Herald Bulletin:

INDIANAPOLIS -- The sentencing of a convicted robber will return to a Madison County court in a case that goes back 30 years.

The Indiana Court of Appeals ruled last week that David Taylor’s sentence from 1984 could not be tied to another county’s case. Now, Madison Circuit Court will have to sentence him again.

Taylor, then 26, was found guilty by a Madison County jury for one count of felony robbery and one count of felony conspiracy to commit robbery.

On April 10, 1984, Taylor committed a robbery in Madison County at 1:22 a.m. At 4:30 a.m. that same day, he committed another robbery in Johnson County in which he and an accomplice abducted two women and assaulted them.

In Johnson County, Taylor was found guilty of armed robbery, rape, criminal deviate conduct and two counts of criminal confinement. He received an aggregate sentence of 175 years in prison for that case, including a 30-year habitual offender sentence.

He has a scheduled prison release date of 2094. Taylor, now 56, has appealed the sentences previously.

In the recent Madison County appeal, Taylor’s original sentence had been set up to run consecutively “to any other sentences that the defendant may have received or may receive from any other county.”

The appellate court found that Taylor should not have been sentenced in connection to another court’s action, saying the Madison County sentence was illegal and must be “completely excised.”

The case has been sent back to be corrected through Madison Circuit Court.

Posted by Marcia Oddi on October 27, 2014 10:53 AM
Posted to Ind. App.Ct. Decisions

Courts - "National money flows into Montana Supreme Court race"

From the Missoulian, dateline Helena, Mike Dennison reports in a long story:

Outside money has been pouring in to influence Montana’s Supreme Court race between Justice Mike Wheat and challenger Lawrence VanDyke – and political observers say Montanans might as well get used to it.

“You’re going to see (national money) keep trickling down to local races,” says Montana State University political scientist David Parker, because they can have a big impact in what he calls “low-information environments” – where voters aren’t that familiar with the candidates. * * *

The Republican State Leadership Committee, a 12-year-old group based in Washington, D.C., has chosen Montana as one of two states so far where it plans to spend thousands of dollars to elect “conservative” judges.

Posted by Marcia Oddi on October 27, 2014 10:45 AM
Posted to Courts in general

Ind. Courts - "Camm seeks $30 million for wrongful conviction"

Baylee Pulliam reports this morning in the Louisville Courier Journal. Some quotes:

Exactly one year after he was exonerated in the murders of his wife and children, David Camm has filed a wrongful conviction claim seeking $30 million.

The claim, filed Friday night, alleges the former Indiana State trooper was "framed" in the fatal shootings of his wife and two children in September 2000. * * *

Among others, the suit names Floyd County, former Prosecutor Stan Faith and former employees — Jacque Vaught, Tony Toran, Mark Henderson and Emily Fessel Miller — and two men Faith had hired to work the crime scene and analyze forensic evidence — Rod Englert and Robert Stites.

The claim also names current Floyd Prosecutor Keith Henderson, deputy Floyd prosecutor Steve Owen, former investigator Wayne Kessinger.

The defendants' investigation and prosecution of Camm for the murders, the claim alleges, were "a gross miscarriage of justice" and resulted in two "unjust convictions and years of wrongful imprisonment" for Camm prior to his acquittal last year.

Here is a copy of the 74-page complaint, filed in the SD Indiana.

The New Albany News & Tribune had a report Oct. 24th, access it here. Some quotes:

He is being represented by the Louisville law firm of Clay Daniel Walton & Adams, PLC.

The 72-page lawsuit filed at New Albany’s Lee Hamilton Federal Building says the “series of events constitutes a gross miscarriage of justice that was not the result of innocent or negligent mistakes, but instead was caused by the deliberate, reckless and egregious misconduct of the defendants.” It goes on to state the misconduct and negligence caused Camm to be falsely arrested, prosecuted and imprisoned.

Posted by Marcia Oddi on October 27, 2014 10:31 AM
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending October 24, 2014

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the June 20, 2014 list.]

Here is the Clerk's transfer list for the week ending Friday, October 24, 2014. It is two pages (and 25 cases) long.

Three transfers were granted last week:

  • Gary Sistrunk v. State of Indiana - Transfer grants for Appellant and for Appellee. This was a NFP 2-1 opinion from May 19, 2014: Gary Sistrunk v. State of Indiana(2)(567)(NFP), involving issues of multiple charges.

  • In the Matter of the Termination of the Parent-Child Relationship of: L.H. (Minor Child); L.P. (Mother) v. The Indiana Department of Child Services - Transfer Granted, the Court of Appeals order is vacated, and the case is remanded to the Court of Appeals for reconsideration of the order dismissing the appeal in light of Matter O.R., 16 N.E.3d 965 (Ind. 2014).

  • In the Matter of the Termination of the Parent-Child Relationship of: M.R. (Minor Child); J.R. (Father) v. The Indiana Department of Child Services - Transfer Granted, the Court of Appeals order is vacated, and the case is remanded to the Court of Appeals for reconsideration of the order denying belated perfection of appeal in light of Matter O.R., 16 N.E.3d 965 (Ind. 2014).
Matter of O.R. is the Sept. 25th Supreme Court opinion holding: "[W]e conclude the untimely filing of a Notice of Appeal is not a jurisdictional bar precluding appellate review."

Posted by Marcia Oddi on October 27, 2014 09:37 AM
Posted to Indiana Transfer Lists

Ind. Gov't. - "Florida Attorney General active in faraway court fights"

The ILB has had a number of posts on the Indiana Attorney General filing amicus briefs in dozens of cases outside Indiana, including this post from June 23, 2014.

Here is the ILB's inital post on this topic, from July 27, 2009, headed "Who should decide Indiana's position on national legal issues? Who should know?"

This weekend the Miami Herald ran a long story by Michael Van Sickler that begins:

Earlier this year, Florida Attorney General Pam Bondi opposed a ban on certain kinds of semiautomatic weapons.

In Connecticut.

The ban was that state’s response to the 2012 massacre at Sandy Hook Elementary, the deadliest school shooting in U.S. history. Bondi and 21 other attorneys general, most of them Republican, filed a brief that argued the ban was unconstitutional.

Bondi’s office didn’t explain the brief. No news conferences. No press release. Nor did she draw attention to signing briefs challenging other gun measures, including a similar ban on semiautomatic weapons in New York, a federal ban on “straw” purchases of guns and a federal law restricting handgun purchases for those between the ages of 18 and 21.

She signed all of these briefs with colleagues from southern and western states that dominate the Republican Attorneys General Association, a political fundraising organization known as RAGA that has contributed $750,000 to Bondi’s $5.5 million reelection campaign.

Since taking office in 2011, Bondi has adopted RAGA’s priorities, recited talking points and joined members’ legal battles far beyond Florida.

A few more quotes from the long story:
In her bid for reelection, Bondi has focused on a get-tough-on-crime message and her record as a staunch defender of victims’ and states’ rights. But none of these “friend-of-the-court” briefs support that or appear to respond to pressing situations in Florida. * * *

Bondi’s office refused to answer whether she consulted with law enforcement before signing the briefs or how they would make Floridians safer. * * *

Guns aren’t the only topic covered in numerous other briefs — many seemingly unrelated to Florida — that reflect how much big money is expanding the scope of AG offices across the country. Since the 2010 Citizens United Supreme Court decision, super PACs like RAGA and its Democratic counterpart (DAGA) can raise unlimited cash from corporations and unions. In passing contributions along to candidates, the groups are further politicizing an office that had been removed from overt partisanship.

“It never crossed the mind of the Supreme Court how Citizens would affect elected prosecutors,” said James Tierney, director of the National State Attorneys General Program at Columbia Law School. “That’s one of the worse aspects of that decision. We’re just now seeing the impact.” * * *

RAGA is run by an eight-member attorney general executive committee, including Bondi, and a small policy staff in Washington, D.C. They promote a variety of issues, including opposition to gay marriage, medical marijuana and the “federal overreach” of the Environmental Protection Agency, which has inspired a number of briefs against federal attempts to limit pollution from coal-powered utilities and agribusinesses.

Bondi, 48, is the only female Republican attorney general, and the group’s website prominently features photos and videos of her. * * *

Bondi and her cohorts stress many of the same issues: pill mills, human trafficking, federal overreach. They backed Bondi’s opposition to the Affordable Care Act by helping to pay the state’s initial litigation costs of $250,000.

Posted by Marcia Oddi on October 27, 2014 09:12 AM
Posted to Indiana Government

Law - Eye-opening NYT story: Must read for attorneys and small business owners

"Law Lets I.R.S. Seize Accounts on Suspicion, No Crime Required" is the headline of this front-page Sunday NY Times story by Shaila Dewan. Don't miss reading a word of it. A few quotes:

ARNOLDS PARK, Iowa — For almost 40 years, Carole Hinders has dished out Mexican specialties at her modest cash-only restaurant. For just as long, she deposited the earnings at a small bank branch a block away — until last year, when two tax agents knocked on her door and informed her that they had seized her checking account, almost $33,000.

The Internal Revenue Service agents did not accuse Ms. Hinders of money laundering or cheating on her taxes — in fact, she has not been charged with any crime. Instead, the money was seized solely because she had deposited less than $10,000 at a time, which they viewed as an attempt to avoid triggering a required government report.

“How can this happen?” Ms. Hinders said in a recent interview. “Who takes your money before they prove that you’ve done anything wrong with it?”

The federal government does.

Using a law designed to catch drug traffickers, racketeers and terrorists by tracking their cash, the government has gone after run-of-the-mill business owners and wage earners without so much as an allegation that they have committed serious crimes. The government can take the money without ever filing a criminal complaint, and the owners are left to prove they are innocent. Many give up. * * *

The I.R.S. is one of several federal agencies that pursue such cases and then refer them to the Justice Department. The Justice Department does not track the total number of cases pursued, the amount of money seized or how many of the cases were related to other crimes, said Peter Carr, a spokesman.

But the Institute for Justice, a Washington-based public interest law firm that is seeking to reform civil forfeiture practices, analyzed structuring data from the I.R.S., which made 639 seizures in 2012, up from 114 in 2005. Only one in five was prosecuted as a criminal structuring case.

The practice has swept up dairy farmers in Maryland, an Army sergeant in Virginia saving for his children’s college education and Ms. Hinders, 67, who has borrowed money, strained her credit cards and taken out a second mortgage to keep her restaurant going.

Their money was seized under an increasingly controversial area of law known as civil asset forfeiture, which allows law enforcement agents to take property they suspect of being tied to crime even if no criminal charges are filed. Law enforcement agencies get to keep a share of whatever is forfeited.

Critics say this incentive has led to the creation of a law enforcement dragnet, with more than 100 multiagency task forces combing through bank reports, looking for accounts to seize. Under the Bank Secrecy Act, banks and other financial institutions must report cash deposits greater than $10,000. But since many criminals are aware of that requirement, banks also are supposed to report any suspicious transactions, including deposit patterns below $10,000. Last year, banks filed more than 700,000 suspicious activity reports. Owners who are caught up in structuring cases often cannot afford to fight. The median amount seized by the I.R.S. was $34,000, according to the Institute for Justice analysis, while legal costs can easily mount to $20,000 or more.

Again, this is just a sample, read the story.

This is not the only ILB post on this IRS forfeiture issue. See this summary of a March 19, 2014 7th Circuit opinion by Judge Hamilton, with a dissent by Judge Sykes. And see this May 2, 2014 ILB post quoting an opinion piece by George Will contending that small business people, mostly immigrants, who run corner groceries and other stores that deal mostly in case, are being targeted by the IRS.

Posted by Marcia Oddi on October 27, 2014 08:39 AM
Posted to General Law Related

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

From Sunday, October 26, 2014:

From Saturday, October 27, 2014:

  • Nothing.

Posted by Marcia Oddi on October 27, 2014 07:31 AM
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 10/27/14):

Thursday, Oct. 30

  • 9:00 AM - State of Indiana v. International Business Machines Corporation (49S02-1408-PL-513) The State and IBM sued one another for breach of contract following the termination of a contract intended to modernize and improve Indiana’s system for administering welfare benefits. After several partial summary judgment rulings and a six-week bench trial, the trial court entered judgment in favor of IBM and against the State and awarded IBM some, but not all, of the damages IBM had sought. On cross-appeals, a divided Court of Appeals panel affirmed in part, reversed in part, and remanded for further proceedings. State v. Int’l Bus. Mach. Corp, 4 N.E.3d 696 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted petitions to transfer the case and has assumed jurisdiction over the appeal.

    ILB: See the Feb. 13, 2014 2-1 COA opinion here. For background, start with this Aug. 8, 2014 ILB post. Justice Massa has recused himself from participating in this case.

  • 9:45 AM - Roy Bell v. State of Indiana (25S00-1310-LW-713) Bell was convicted of murder and burglary following a bench trial in the Fulton Superior Court, and was sentenced to life without the possibility of parole pursuant to the parties’ agreement. In this direct appeal, Bell argues the evidence was insufficient to support the murder conviction.
Next week's oral arguments before the Supreme Court (week of 11/3/14):

Thursday, Nov. 6

  • 9:00 AM - Stephen Robertson v. The Medical Assurance Co. (94S00-1406-CQ-378) Pursuant to Indiana Appellate Rule 64, the United States District Court for the Northern District of Indiana certified the following question of Indiana law for the Indiana Supreme Court’s consideration, which the Indiana Supreme Court accepted on June 30, 2014. The question, as framed by the federal court, is:
    Does Indiana law allow the Patient’s Compensation Fund to pursue a claim against an insurer for the insurer’s breach of its duty of good faith to its insured, through the doctrine of equitable subrogation?

  • 9:45 AM - State Farm Mutual Automobile Insurance Company v. Kimberly Earl (36S05-1408-CT-562) After a $250,000 jury verdict in favor of Earl on her uninsured motorist claim against State Farm, the Jackson Circuit Court entered judgment in favor of Earl. The Court of Appeals reversed and remanded for a new trial, holding that the trial court erred by admitting evidence of the $250,000 limit in Earl’s policy with State Farm, State Farm Mut. Auto. Ins. Co. v. Earl, 3 N.E.3d 1009 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was a Jan. 24th, 2-1 opinion where the majority wrote:

    In this case, we are presented with an issue of first impression in Indiana. More particularly, appellant-defendant State Farm Mutual Automobile Insurance Company (State Farm) asks us to join other states that have determined Uninsured Motorist (UM) insurance limits to be inadmissible. * * * State Farm contends that evidence of the bodily injury limit was both irrelevant and prejudicial. Determining that evidence of the bodily injury limit was in fact both irrelevant and prejudicial, we reverse and remand this cause to the trial court for further proceedings consistent with this opinion.

  • 10:30 AM - Jeffrey A. Weisheit v. State of Indiana (10S00-1307-DP-492) Weisheit was convicted of two murders and of arson and sentenced to death on the jury’s unanimous recommendation. The Clark Circuit Court sentenced Weisheit accordingly. In this direct criminal appeal, Weisheit argues various errors occurred during trial and at sentencing.
Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 10/27/14):

Wednesday, Oct. 29

  • 1:00 PM - Gentry v. Bloomquist (32A01-1406-CT-226) In May 2012, eighteen-year-old Sean Bloomquist (“Bloomquist”) hosted a party at his father’s home. Bloomquist’s father and stepmother were not at home and were unaware of the party. Bloomquist, eighteen-year-old Nathan Gentry (“Nathan”), and a third teenager gave money to nineteen-year-old Dustin Stamm (“Stamm”) to purchase alcohol. Stamm went by himself to purchase the alcohol and returned to Bloomquist’s home with a case of beer, which was kept in Stamm’s open car trunk during the party. According to seventeen-year-old party guest Christopher Hubbard (“Hubbard”), the beer was already there when he arrived, and Bloomquist told him that he could have some. Hubbard drank some beer, went to bed in Bloomquist’s home between 12:00 and 2:00 a.m., and awoke at 8:00 the next morning. Half an hour later, as Hubbard was driving Nathan and others to another partygoer’s softball practice, his car left the road and hit a tree. Nathan died as a result of the collision. Nathan’s father, Albert C. Gentry, II (“Gentry”), filed a complaint for damages against Bloomquist and others. The complaint alleged that Bloomquist was civilly liable because he violated Indiana Code Section 7.1-5-7-8, which makes it unlawful for a person to “recklessly, knowingly, or intentionally sell, barter, exchange, provide, or furnish an alcoholic beverage to a minor,” as well as Indiana Code Section 7.1-5-10-15, which makes it unlawful for a person to sell, barter, deliver, or give away an alcoholic beverage to another person who he knows is intoxicated. Indiana Code Section 7.1-5-10-15.5 defines “furnish” as including “barter, deliver, sell, exchange, provide, or give away.” Bloomquist filed a motion for summary judgment asserting that he did not “furnish” an alcoholic beverage to Hubbard. The trial court granted Bloomquist’s motion. On appeal, Gentry contends that the trial court erred in granting Bloomquist’s summary judgment motion because genuine issues of material fact exist regarding whether Bloomquist “furnished” an alcoholic beverage to Hubbard. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Barnes and Crone. [Where: Notre Dame Law School, 1100 Eck Hall, Notre Dame, IN]

Next week's oral arguments before the Court of Appeals (week of 11/3/14):

  • No arguments currently scheduled.
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]

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


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

Posted by Marcia Oddi on October 27, 2014 07:30 AM
Posted to Upcoming Oral Arguments

Sunday, October 26, 2014

Ind. Law - More on: Validity of same-sex marriages resulting from licenses issued during the June "window"

Updating this ILB post from Oct. 15th, a DOJ release dated Oct. 25th, headed "Attorney General Holder Announces Federal Government to Recognize Same-Sex Married Couples in Six Additional States," makes the following statements relevant to Indiana marriages:

In the latest development following the Supreme Court’s decision earlier this month to decline to hear any pending cases regarding same-sex marriage, Attorney General Eric Holder announced Saturday that the federal government will now recognize same-sex married couples in six new states: Alaska, Arizona, Idaho, North Carolina, West Virginia, and Wyoming.

Last week, the Attorney General made a similar announcement with respect to seven other states: Colorado, Indiana, Nevada, Oklahoma, Utah, Virginia and Wisconsin. Saturday’s announcement adds to that list and brings the total number of states where same-sex couples are recognized by the federal government to 32, plus the District of Columbia.

The Attorney General’s announcement means couples married in these states will now qualify for a range of federal benefits, including those administered by the Social Security Administration and Department of Veterans Affairs.

“With each new state where same-sex marriages are legally recognized, our nation moves closer to achieving of full equality for all Americans,” the Attorney General said. “We are acting as quickly as possible with agencies throughout the government to ensure that same-sex married couples in these states receive the fullest array of benefits allowable under federal law.”

In addition, the Attorney General also announced that the Department of Justice has determined it can legally recognize marriages performed in Indiana and Wisconsin this past June. These marriages were performed immediately after federal district courts ruled that those states’ bans on same-sex marriage are unconstitutional, but subsequent developments created confusion about the status of those marriages. Based on the Attorney General’s announcement, however, those couples married during that period will now have their unions recognized by the federal government.

Thanks to this post today from Lyle Denniston of SCOTUSblog.

Posted by Marcia Oddi on October 26, 2014 12:51 PM
Posted to Indiana Law

Friday, October 24, 2014

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In 219 Kenwood Holdings, LLC v. Properties 2006, LLC, a 7-page opinion, Judge Baker writes:

219 Kenwood Holdings, LLC, (Kenwood) appeals the judgment of the trial court finding that Properties 2006, LLC, (Properties 2006) substantially complied with the requirements of Indiana Code section 6-1.1-25-4.5(e). Subsection (e) requires that the purchaser of property sold at a tax sale notify the owner of record of, among other things, the purchaser’s intent to petition for a tax deed on or after a specified date. Finding that the trial court did not err in its determination that Properties 2006 substantially complied with the requirements of this statute, we affirm.
NFP civil opinions today (0):

NFP criminal opinions today (2):

Michael C. Wilson v. State of Indiana (NFP)

Rolando L. Diaz v. State of Indiana (NFP)

Posted by Marcia Oddi on October 24, 2014 10:58 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Incumbent, 2 challengers in contention for judgeship"

The ILB does not blog about every local judicial election, but this story from Rebecca Green of the Fort Wayne Journal Gazette is particularly comprehensive and could serve as a model. The long story begins:

Allen Superior Court Judge Stanley Levine has held onto his seat on the Allen County bench for 16 years, but this year there are two challengers trying to unseat him.

Daniel Borgmann, husband of Allen County Clerk Lisbeth Borgmann, is running, as is James Posey. All three candidates have decades of legal experience. The candidates cannot make promises or pledges as to what they would do in office, and Allen County Superior Court candidates are nonpartisan.

Judge Stanley Levine

The 76-year-old Levine quickly talked about how he ended up on the bench in the first place – with an appointment to replace Judge Vern Sheldon when he retired at the end of 1998. He has since been elected and re-elected to his seat.

Through the appointment process, Levine was vetted by local lawyers, local leaders and an Indiana Supreme Court justice.

“A group of people passed on my qualifications,” he said.

Before he took the bench, Levine practiced law in Allen County for 35 years. In those years, he represented Fort Wayne City Council and served as the president of the Allen County Bar Association.

He identifies no court issues as relevant to the office and said state codes of ethics prohibit candidates from making any promises about what they would do if elected.

In August, Levine drew fire for a series of public statements made at a retirement party for a female court employee. He apologized publicly and said she accepted it.

“I stand on my record in dealing with women as employees, co-workers and litigants,” he said. “It’s been exemplary.”

A lifelong Fort Wayne resident, South Side High School graduate and Air National Guard captain, Levine said he should be allowed to continue in his job.

“Being a good judge is all about what you do and not what you promise,” Levine said. “I bring to the bench sound legal reasoning, wisdom, common sense and a proven history of fairness, honesty and integrity. I think that’s what people want in a judge.”

James Posey

A senior partner and litigator at the local firm Beers, Mallers, Backs & Salin LLP, Posey, 60, said he wants to take his years of experienced gathered in civil law practice and apply it in a way that allows him to serve.

He thinks serving as a judge would be one of the best ways he could contribute to the community.

“It’s time for people to try to think outside the box as to how the judiciary can be used to help communities,” he said.

Posey would like to see the Allen Superior Court establish a “business court,” which would involve only disputes between businesses. Similar courts operate in states surrounding Indiana, he said.

“Businesses can plan better,” he said.

By allowing judges to handle business disputes, such courts help with economic development, he said.

Posey believes his diverse experience as a litigator would benefit him on the bench, having handled all types of cases.

“You are not losing experience, but what you are gaining is someone who has a great deal of energy and passion to want to work at the job,” Posey said.

Prohibited by local rules from spending more than $10,000 to campaign for judge, Posey has been knocking on doors in Allen County. He estimated that by mid-October, he’d visited nearly 3,000 houses.

If he’s elected, he plans to put his worn-out shoes in his chambers to remind him of what it took to get there.

“You’re accountable to the voters,” he said.

Daniel Borgmann

Known locally as a mediator, Borgmann, 63, is a managing partner at the local law firm of Helmke Beams LLP.

He has identified three areas he’d like to tackle if he is elected to the bench: an evening court; helping other judges who have heavier case loads by handling preliminary hearings and other procedural matters; and starting a domestic violence problem-solving court.

“I think it’s time to start a conversation here,” Borgmann said about a domestic violence court. “I know I have to go to eight other judges and convince them, and I’d probably have to go to the Indiana Supreme Court too.”

Along with the Superior Court’s criminal division, which handles domestic violence cases now, Borgmann would probably also need to consult with the Allen County Prosecutor’s Office as well.

Borgmann said he wants to see continuity in how the cases are dealt with. The criminal side of the cases are handled in the criminal division, while family matters are handled in the family relations division.

Borgmann believes perhaps the cases can be streamlined.

“It may not take the criminal division out but could end up in the civil division,” he said.

He acknowledges getting any of those three goals through would be tough and knows he’d have to politic a bit to accomplish them.

Much of his legal work the past few years has been spent mediating – about 1,700 mediations over the past 14 years.

“I think that speaks well about what my peers think of me and my ability, that I think really distinguishes me,” he said.

Borgmann hasn’t campaigned much, he said. He said he has not collected any campaign donations or endorsements.

“Mailings and emails, that’s the vast majority of what I’ve done,” he said.

His wife, a Republican, is running for the county clerk of the courts. While she has no opponent, she has taken out large black billboards with the family name in dark orange letters. The word “clerk” is written underneath the Borgmann name in small letters.

Posted by Marcia Oddi on October 24, 2014 10:19 AM
Posted to Indiana Courts

Ind. Gov't. - "Governor Pence Announces State Partnership with Ancestry.com"

Here is the news release from Gov. Pence:

The State of Indiana, through the Indiana Commission on Public Records (State Archives) has entered into a contract with Ancestry.com to digitize and eventually post online more than 13 million birth certificates, death certificates, and marriage records for access by Hoosiers. These online historical records, those older than 75 years, will start to become available in 2015, with the completion date expected by the State’s Bicentennial in 2016. This will be the largest online collection of the State of Indiana’s materials ever digitized.

“As we head toward the 2016 Bicentennial and celebrate Indiana’s past, this initiative serves not only present-day Hoosiers by improving accessibility to records, but also future Hoosiers as they look back at state history,” Governor Pence said.

This partnership saves the State of Indiana more than $3.2 million—the cost to index, scan, and make accessible the materials, and would have taken the state more than a decade to complete. It also provides another mechanism to both access the records and preserve the remaining originals from excessive use and degradation, and provides an additional copy in case original copies are destroyed.

For the last two years, the Indiana Commission on Public Records has been working with the Indiana State Department of Health’s (ISDH) Vital Records office to achieve this partnership. Both the ISDH and State Archives will receive a copy of the digital images and indexes—ISDH will use its copy to improve service to Hoosiers by streamlining the process of accessing records and providing official copies to citizens, while State Archives will provide access to the records more than 75 years old at its facility. Ancestry.com also will provide access to its members for the historical records when the project is completed.

The birth and death certificates date back to the early 1900s, and the State’s marriage records from 1958 through 2005.

Here is a story in the Fort Wayne Journal Gazette by Dave Gong. The latter part of the story may point to some continuing difficulties, both in access and cost, for those pursuing generalized research.

Posted by Marcia Oddi on October 24, 2014 10:06 AM
Posted to Indiana Government

Courts - "SCOTUS Edits a Dissent, and Admits It"

Unlike the 7th Circuit, and recently, the Indiana Supreme Court, the SCOTUS has in the past not revealed after the fact changes to its opinions. A brief story yesterday by Adam Liptak of the NY Times does not prove the SCOTUS is changing its ways, but that it has in one case:

The Supreme Court on Wednesday made a rare confession: One of its opinions contained an error and has been corrected.

Changes in the court’s opinions after they are issued are common, and some happen years after they are announced. But, with few exceptions, the court has not acknowledged its after-the-fact editing.

The court’s announcement Wednesday concerned a dissent from Justice Ruth Bader Ginsburg issued early Saturday morning that objected to an order from the court allowing Texas to use its strict voter ID law in next month’s election.

Justice Ginsburg mistakenly included photo ID cards issued by the Department of Veterans Affairs among the forms of identification that would no longer be accepted. The error was noted Tuesday by Richard L. Hasen, a law professor at the University of California, Irvine.

A court spokeswoman said that Justice Ginsburg’s assertion about those IDs had been deleted from her dissent and that the justice had also made “small stylistic changes” to her opinion.

Posted by Marcia Oddi on October 24, 2014 09:49 AM
Posted to Courts in general

Ind. Gov't. - "Indiana residents fight city’s home-seizure plan"

Aalia Shaheed of Fox News reports today in a story that begins:

Indiana residents are fighting to save their homes as their local government weighs a sweeping plan to demolish them to make way for new development, in a case critics are calling a “poster child” for the abuse of so-called eminent domain powers.

Charlestown, Ind., Mayor Bob Hall announced his plans earlier this year to demolish more than 350 homes in the city’s Pleasant Ridge neighborhood. The mayor contends the neighborhood is “blighted,” and therefore the city is eligible for state money to buy out the homeowners and tear down their houses.

His office argues the houses, originally bought by the Army in 1940, were meant to be temporary.

But the “temporary” houses remain very much occupied. And many residents are not interested in selling them, at least not for what the government might offer. According to the Institute for Justice, a national group that is aiding residents in their case, the state fund Hall wants to tap offers residents just $6,000 for their houses.

Posted by Marcia Oddi on October 24, 2014 09:44 AM
Posted to Indiana Government

Law - "So Little Paper to Chase in a Law Firm’s New Library"

David W. Dunlap reported yesterday in the NY Times on the shrinking size of law firm libraries. The story focused on the NYC firm Kaye Scholer's recent move:

The law firm Kaye Scholer left a lot behind when it moved this month from 425 Park Avenue in Manhattan, where it had been since 1957, into new quarters at 250 West 55th Street. * * *

Kaye Scholer left something else behind: most of its law library.

Shelves full of uniformly bound legal volumes — beloved of any photographer, videographer or cinematographer who needs a background that instantly proclaims “law office” — are headed to oblivion in the digital era. Kaye Scholer’s library just got there faster because of the exigencies of the move. * * *

Nearly 95 percent of a library that numbered tens of thousands of volumes was discarded. Outdated books were recycled. Updated books were donated. * * *

The new library has about 700 linear feet of shelving in a cheerfully well-illuminated room in the basement — or concourse level — of 250 West 55th Street.

At 425 Park, the library was a two-floor enclave, with accents of wood paneling, at the heart of the firm’s headquarters. There were 10,000 linear feet of shelving. * * *

Those are exactly the books that appeared behind the partners at Friedman, Levy, Goldfarb & Green in a group portrait for a recent advertising supplement, “Super Lawyers.” The photo was taken in the firm’s conference room and library at 250 West 57th Street.

“The answer to your question is that they’re basically decoration,” Ira H. Goldfarb, the senior partner and trial lawyer, said about the books. “They’re an anachronism. We couldn’t give them away if we wanted to.”
Photo
Kaye Scholer's new library, at 250 West 55th Street in September, before the remainder of the library arrived. It has 700 linear feet of shelving, compared with the old library's 10,000 linear feet. Credit Fred R. Conrad/The New York Times

“We have an account with an online library,” he said. “That’s all that’s used.”

ILB: In this August 5th post about the 50 most impressive law school buildings in the world, the ILB noted:
In fact, many of the buildings pictured are in fact THE law library building at the selected school. How long will these enormous areas devoted to collections of printed books remain functional; what will be the conception and role of the "library" in the future? I trust that schools planning new construction are looking at this question and that the ABA has a committee looking at the practicality of its library requirements for law school accreditation, in light of the now nearly total digitization of the law.

Posted by Marcia Oddi on October 24, 2014 09:19 AM
Posted to General Law Related

Thursday, October 23, 2014

Ind. Courts - Judges shall receive "a compensation which shall not be diminished during their continuance in office."

That is a quote from Art. 7, sec. 19 of the Indiana Constitution. The ILB has had a number of posts over the years referencing this language. Grant Circuit Court Judge R. Thomas Hunt won a lawsuit based on this language in 2006. A story at the time reported:

According to court documents, Hunt submitted to the council the proposed budget for his salary, and the council refused to appropriate the funds for the 2006 rate. Hunt said the council went against the state constitution, which says a circuit court judge's salary cannot be reduced while he is in office, and the Blackford judge ruled in Hunt's favor.
Steuben County briefly considered such a move in 2008.

Now the ILB reads that Franklin County was considering such a reduction. John Estridge has the story in the Oct. 22nd Brookville American-Democrat. But it looks like the county will be paying attorney fees to Faegre Baker Daniels rather than reducing judges salaries. Some quotes:

Franklin County Auditor Steve Brack sent out the notices for the executive session. In the reason for the executive session, he put, “This meeting is being held regarding – Judge J. Steven Cox and Judge Clay Kellerman Unlawful Reduction in Supplemental County Salary Lawsuit.”

A letter sent to Jeff Koch, FCC president, from A. Scott Chin, an attorney with Faegre Baker Daniels, gives council a proposed resolution. If council does not agree to the proposed resolution in seven days after receiving the letter, then the judges intend to sue the county.

At issue is a supplement the county pays the two judges as well as the prosecutor and assistant prosecutor. It amounts to as much as $5,000 per year. * * *

It can be reduced from the $5,000 figure if the state gives the judges a raise.

County council did not appropriate any money for the judges or the prosecutors regarding the county’s portion of their pay.

Judges received $139,112 in the 2013-14 year.

Chin cites case law showing the judges cannot receive less in 2014-15 than they received in the previous year.

According to Franklin Circuit Court II Judge Clay Kellerman, making it so the county cannot reduce a judge’s pay is because the judiciary is a separate but equal branch of the government, and it preserves the independence and integrity of the judiciary.

Thus, the county cannot take punitive action against one or more of the judges within the county because of a decision by one or both of the judges. * * *

Counties can only stop the supplement when there is a change in judges or prosecutors, according to auditors from other counties.

“In light of the foregoing, the Judges would accept the following to resolve this matter and avoid the necessity of litigation,” Chin wrote. “The County shall: (1) appropriate and pay the $5,000 supplemental salaries due to each Judge for 2014 as soon as practicable yet in 2014; (2) amend the 2015 budget to appropriate the $5,000 supplemental salaries; and (3) pay the attorneys’ fees and costs the Judges have incurred in being forced to redress the Council’s violation.”

Chin’s letter then sets a deadline and possible action if the demands are not met.

“In the absence of the County’s willingness to accept these terms of settlement, the Judges reserve their rights to bring a lawsuit to remedy the County’s unlawful actions and will additionally seek liquidated damages under Ind. Code 22-2-5-2.

“This offer of compromise to address the Council’s illegal violations shall remain open for seven days following the Council’s receipt of the letter,” the letter continued. “In the absence of the Council’s agreement to these terms within that time period, the Judges shall move forward with a lawsuit.”

ILB: This shows, among other things, the value of the ILB archives.

Posted by Marcia Oddi on October 23, 2014 04:42 PM
Posted to Indiana Courts | Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In the Matter of the Commitment of S.D. v. Adult & Child Mental Health Center, Inc. (NFP)

Sebastian Chapman v. Corizon, LLC (NFP)

NFP criminal opinions today (4):

Gabina Hernandez v. State of Indiana (NFP)

Jassel Lopez v. State of Indiana (NFP)

William Ballentine v. State of Indiana (NFP)

Jonathan Gray v. State of Indiana (NFP)

Posted by Marcia Oddi on October 23, 2014 09:48 AM
Posted to Ind. App.Ct. Decisions

Wednesday, October 22, 2014

Courts - Texas Supreme Court on Electronic Briefs

The Texas Supreme Court has a number of guides relating to elctgronic briefs and e-formatting. Check it out.

Also, see this post from Lawyerist headed "5 Tips For Writing Briefs For Tablets."

Posted by Marcia Oddi on October 22, 2014 03:46 PM
Posted to Courts in general

Ind. Gov't. - AG's office answers reporter's questions on funding of state's defense of the marriage law

NUVO today has a long Q&A by reporter Amber Stearns with Bryan Corbin, spokesman for the AG’s office. Some quotes:

It has been just over two weeks since the U.S. Supreme Court rejected Indiana’s cert petition and effectively changed marriage equality in the state. Although the dust has settled and marriage rights are now recognized, Indiana Attorney General Greg Zoeller continues to field criticism and questions about the role his office played in defending the now outdated marriage law and all costs associated with that defense.

Bryan Corbin, spokesman for the AG’s office, took the time to answer specific questions about the role of the Attorney General’s office in one of the most heated debates to travel through the federal court system.

NUVO: You have stated several times that the money spent to defend the state’s traditional marriage statue was within the Attorney General’s budget.

Bryan Corbin: That is correct. The operations of the Attorney General’s Office are funded out of our annual budget of approximately $19 million that the Legislature approved in April 2013 and that funds our legal representation in all our cases.

NUVO: What part of the AG’s budget specifically does this come out of? What is it typically used for?

Corbin: Approximately $17.7 million of our overall budget is for personnel (attorneys, paralegals, law clerks, staff) who constitute state government’s law firm: the Attorney General’s Office. Another $1.2 million is for operating expenses. Together this covers our work representing the State in court in approximately 2,700 civil lawsuits and 1,300 new criminal appeals each year, including the case you asked about.

NUVO: Can you give a specific figure from the budget line item that was spent specifically on the marriage equality fight?

Corbin: As the state government’s lawyer whose budget is determined by the Legislature in advance, we do not track billable hours per case or charge our state government client billable hours like a private law firm would. Individual cases do not have dedicated or individual line items in the budget; we fund our attorneys’ salaries from the personnel budget and all non-salary expenses from the operation budget for all cases. Our in-house salaried attorney who was assigned to this case would have been paid the same salary whether plaintiffs’ lawyers filed this lawsuit or not. * * *

NUVO: You have also stated on several occasions stated that no outside counsel with billable hours was used to defend Indiana’s marriage law.

Corbin: Correct. No outside counsel was used. * * *

NUVO: How many people in the AG’s office were dedicated to this project? Were they exclusive or was the case a part of their regular workload?

Corbin: No one person was devoted “exclusively” to the marriage lawsuit. Solicitor General Thomas M. Fisher was the salaried attorney in our office who entered an appearance in this case, but as noted during the six-month duration of this case he continued to work on his caseload of other, unrelated cases. He was assisted by other AG’s Office staff members, amid their duties in many other cases that constitute our agency caseload.

NUVO: Was all of the work specific to the defense of Indiana’s marriage law specific to the Office of the Solicitor General or was some of the work delegated to different departments?

Corbin: The Solicitor General Division is a division of the Attorney General’s Office, not an office in itself. The Solicitor General was the attorney who entered an appearance in the Baskin litigation, with assistance by others in our office.

ILB: Some other areas that might have been explored: First, there are several other attorneys in the Solicitor General's office, which is headed by Mr. Fisher. Over the past several years, the Solicitor General's office has authored and submitted several dozen amicus briefs in non-Indiana same-sex marriage cases around the country, as well as in the earlier cases argued before the SCOTUS. What proportion of that office's time has been devoted to this issue? Was travel involved?

Second, not touched on in the Q&As trying to get a handle on the AG's budget is that many state agencies must reimburse the AG's office for legal representation. In addition, the AG's office does not represent certain agencies, these agencies have their own legal budgets.

Finally, a look at the state contracts database shows that the AG's office contracts for millions of dollars in legal services from solo attorneys or firms such as former AG Steven Carter, Lewis & Wilkins PC, and Church Church Hittle & Antrim. Are these contracts part of the $19 million?

Posted by Marcia Oddi on October 22, 2014 02:35 PM
Posted to Indiana Government

Courts - "Justice, it may be said, may not be blind, but it is sometimes inscrutable."

So concludes Lyle Denniston's story in Constitution Daily, wherein "Denniston, the National Constitution Center’s adviser on constitutional literacy, explains how the Supreme Court’s recent actions without comments in major decisions may appear to be mysterious but are hardly uncommon."

Posted by Marcia Oddi on October 22, 2014 02:24 PM
Posted to Courts in general