Monday, August 03, 2015

Ind. Gov't. - Dunes project: "Emails show Pavilion Partners had head start with DNR"

Here is the ILB's now lengthy list of posts on the Indiana Dunes pavilion project.

In our most recent report, the State Alcohol and Tobacco Commission had sent the liquor license request back to the county body for a new hearing.

Today Amy Lavalley of the Gary Post-Tribune has long story, headed "Emails show Pavilion Partners had head start with DNR." Some quotes:

[E]mails provided to the Post-Tribune show Chuck Williams, the principal investor in Pavilion Partners and a Valparaiso businessman, and Scott Virtue, the project's architect, who is based in Porter, were in contact with officials from the DNR as early as 2010, more than a year before the state asked for RFPs to renovate the pavilion. * * *

The emails, which are public record, show that Virtue contacted Gary Miller, assistant director of state parks with the DNR, on Sept. 21, 2010, and included a booklet, confidential at the time, detailing renovations at the pavilion. Miller died in June 2013.

In the email, Virtue writes, "Our understanding of the process is for you to first, share this information with those in your division of the DNR. Then, you will share our ideas with those members of the Indiana Historic Preservation Review Board. Once all the appropriate state employees have provided their input, you will prepare a prospectus for the project. It is that prospectus that will be publicly advertised."

That prospectus, the RFP, was first advertised on Nov. 18, 2011. Proposals were due at the DNR by March 1, 2012.

According to the emails, Williams met with David Duvall, historic architect with the Indiana Division of Historic Preservation and Archaeology, at the pavilion on March 4, 2011. A meeting for a week earlier was scratched because of inclement weather. Duvall recalled meeting with Virtue.

"I remember going out and meeting with Scott Virtue and walking the property several years ago," Duvall said, adding it was in the winter but he couldn't remember the date. "I looked at the building and pointed out what was more important and what was less important."

He said he doesn't remember seeing any documents for renovating the pavilion before the RFP was accepted, and "if there were planned documents, they would have been very preliminary."

Virtue said he couldn't recall the dates but knew DNR wanted to renovate the pavilion when Pavilion Partners offered its plan. He couldn't speak to whether his group had an advantage in the selection process because of its prior contact with the state, adding Williams hired him to do the drawings and it was Williams' prerogative to do what he wanted with them.

Informal discussion about renovating the pavilion began in mid-2010, Williams said.

As can be seen from the long list of earlier ILB posts linked above, the question of an inn (as opposed to a banquet center) at the Indiana Dunes was first broached during the Daniels administration.

Posted by Marcia Oddi on August 3, 2015 02:04 PM
Posted to Indiana Government

Law - "Georgia Becomes the First State to Mount a Direct Challenge Against Unauthorized Publishing of Annotated Code"; What About Indiana?

The ILB has seen a number of stories on this topic; several of them didn't appear to understand the issues involved.

This story from The National Law Review, written by attorney Preston H. Heard, dated July 31, seems to have a good grasp of the facts:

The complaint was filed by the Code Revision Commission, on behalf of the General Assembly of Georgia and the State of Georgia, on July 21, 2015 in the Northern District of Georgia, alleging that Public.Resource.org's act of publishing and making available on the internet over 140 volumes/supplements of the Official Code of Georgia Annotated (O.C.G.A.) violated U.S. copyright law.

According to the complaint, Georgia contracts with LexisNexis to publish an annotated version of Georgia's state laws. Under the contract, LexisNexis is required to make an unannotated version of the code available to the public for free. In order to recoup its publishing costs, however, LexisNexis is responsible for drafting and making "additions to the statutory text," such as summaries of significant judicial decisions relating to various parts of the code. The complaint, which acknowledges that the laws themselves are uncopyrightable, refers to these additions as the "Copyrighted Annotations." The State of Georgia asserts that these Copyrighted Annotations are prepared as "works for hire" by LexisNexis and thus claims exclusive copyright ownership on that basis.

The State asserts that Public.Resource.org illegally copied the O.C.G.A. containing the Copyrighted Annotations and then uploaded copies to various websites, including its own sites and archive.org, even going so far as to post a notice that members of the public "can copy, modify, distribute and perform the work, even for commercial purposes, all without asking permission."

In other words, Public.Resource.org appears to have scanned or otherwise copied all the volumes of the printed Georgia Code Annotated, published by LexisNexis, and posted it online.

Here is a copy of the State of Georgia's 21-page, July 21st complaint, it is interesting reading.

Here is the Georgia General Assembly's website. If you click on Georgia Code in the left column, you go next to a "Terms & Conditions" page, which includes:

This website is maintained by LexisNexis®, the publisher of the Official Code of Georgia Annotated, to provide free public access to the law. * * *

Your use of this service is subject to Terms and Conditions. These Terms and Conditions do not apply to the Statutory Text and Numbering contained in the Content of the site. However, the State of Georgia reserves the right to claim and defend the copyright in any copyrightable portions of the site. Please indicate your agreement to the Terms and Conditions by clicking "I Agree" below."

The "Terms & Conditions" link goes directly to the private publisher, Lexis-Nexis.

This Official Code of Georgia Annotated that is provided via the Georgia General Assembly's website is slow and clunky to use, as compared to the Indiana General Assembly's online Indiana Code. It also does not appear to the ILB that a reader has a choice of simply accessing the Georgia Code, in print or online, without the LexisNexis annotations and restrictions. This even though the State of Georgia acknowledges in its complaint [ILB emphasis]:

Plaintiff does not assert copyright in the O.C.G.A. statutory text itself since the laws of Georgia are and should be free to the public. The Code Publishing Contract between LexisNexis and the State of Georgia requires that LexisNexis publish on the internet, free of charge, the statutory text of the O.C.G.A. These free Code publications are available 24 hours each day, 7 days a week, and include all statutory text and numbering; numbers of titles, chapters, articles, parts, and subparts; captions and headings; and history lines. The free Code publications are fully searchable, and the catchlines, captions and headings are accessible by links from the table of contents. The free Code publication of the State of Georgia is accessible via a website link found on the State of Georgia website www.legis.ga.gov.
However, the link provided leads to the LexisNexis annotated version.

Two other good commentaries are:

  • "Georgia Sues Website for Publishing the Laws of Georgia," by C. Mitchell Shaw, in The New American on July 31st

  • "Even If The State Of Georgia Can Copyright Legal Annotations, Should It?" by Mike Masnick of TechDirt on July 27th, a thoughtful analysis replacing an earlier article.
Back to the National Review article quoted from earlier; it concludes:
On its face, the State of Georgia appears to have an open-and-shut case, but it does raise the question of whether the "Copyrighted Annotations," which are heavily-relied upon by legal practitioners and the public alike, are "officially" part and parcel of the law such that they should also be deemed uncopyrightable works. The complaint acknowledges that the "succinctness and accuracy of the judicial summaries are in large part what make them valuable to attorneys and others researching the Code." This recognition by the State along with the "official" blessing highlights the crux of the controversy: if the annotations are part of the "official" law of the state, can (or should) those annotations be protected by copyright law from free public dissemination? It may well require Congressional action to preclude states from obtaining copyright protection on works made for hire pursuant to contract.
The ILB wonders what weight these "official annotations" might have in a court of law? The Georgia legislature has contracted with a private publisher to write annotations ... But it has not delegated its legislative authority to write laws. And the annotations may digest what the editors believe are significant court references, but the annotators are not judges.

What About Indiana?

Fortunately, Indiana has not fallen into this quagmire, although, for a period of time years back, the LSA permitted West Publishing or Banks-Baldwin to copyright section headnotes, as can be seen in these examples from the printed publication of the Indiana Code.

Perhaps Indiana learned its lesson early: Until the completion of the Indiana Code project in the early 1970s, the only source for the statutes of Indiana was either though the uncompiled volumes of the Acts of Indiana, going back to 1852 and before, or via the unofficial compilation privately published by Bobbs-Merrill -- Burns Indiana Statutes Annotated.

Posted by Marcia Oddi on August 3, 2015 01:50 PM
Posted to General Law Related

Ind. Decisions - Transfer list for week ending July 31, 2015

Here is the Clerk's transfer list for the week ending Friday, July 31, 2015. It is one page (and 1 case) long.

One transfer was granted last week:

  • In Re the Visitation of L-A.D.W., R.W. v. M.D. and W.D. - Transfer was granted in this case, with opinion, on July 30th. See the ILB summary here. Notice that two of the justices, via a separate opinion written by the C.J., concurred only in the result.

Posted by Marcia Oddi on August 3, 2015 10:54 AM
Posted to Indiana Transfer Lists

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

From Sunday, August 2, 2015:

From Saturday, August 1, 2015:

From Friday afternoon, July 31, 2015:

Posted by Marcia Oddi on August 3, 2015 07:59 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 8/3/15):

  • No arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 8/10/15):

  • No arguments currently scheduled.

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 8/3/15):

  • No oral arguments currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 8/10/15):

Wednesday, August 12

  • 11:00 AM - Price v. State (29A04-1408-CR-405) Amy Ann Price was convicted of four counts of Class B felony burglary. The court imposed four consecutive eight-year sentences, but it suspended three years of each sentence. On appeal, Price argues that the trial court erroneously denied her motion to suppress her confession and the evidence found in her purse because the State violated her constitutional rights under Article 1, Section 11 of the Indiana Constitution by searching her purse without giving her a Pirtle warning. She also argues that she was prejudiced by the court's jury instructions, which allegedly misled the jury by emphasizing specific evidence that implied her guilt.. The Scheduled Panel Members are: Chief Judge Vaidik, Judges May and Barnes. [Where: Court of Appeals Courtroom (WEBCAST)]

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 August 3, 2015 07:57 AM
Posted to Upcoming Oral Arguments

Sunday, August 02, 2015

Ind. Courts - Probation funds may be at issue again in SE Indiana

Some readers may recall Sept. 2007 Supreme Court decision in Clark County Council and Clark County Auditor v. Daniel F. Donahue, Cecile A. Blau, Vicki Carmichael, and Steven M. Fleece, the probation fees case about which the ILB had many posts. As explained in the Louisville Courier Journal on March 1, 2007:

In 2003, the [Clark Co.] council decided to start using about $500,000 in probation fees collected each year by the four county courts to pay court expenses previously covered by the county's general fund.

The judges filed suit against the council in 2005, arguing that state law gives them -- and not the county council -- the authority to determine how to spend probation user fees.

The council argued that it was forced to take control of the probation funds because of the fiscal crisis and that state law allowing local courts to collect and use probation fees can be interpreted to give the council authority over the funds.

The council has continued to exert its control over the fees by using them in the county budget for this year.

On Sept. 27, 2007, the LCJ wrote of the Supreme Court's decision the date before:
In a case watched closely by judges statewide, the Indiana Supreme Court said yesterday that Clark County's judges -- not the County Council -- have the authority to determine how to use about $500,000 in probation fees collected annually.

But the court also upheld the council's appropriation authority, saying the council can determine how much of the fees are spent from year to year.

Today Daniel Suddeath of the New Albany News and Tribune has a long story about neighboring Floyd County, headed "Millions in funds can't be touched by Floyd County Council." Some quotes:
NEW ALBANY — Though some officials cautioned utilizing the money would only be a temporary solution to budget shortfalls, Floyd County departments have more than $2.6 million in non-reverting funds that could be spent on expenses like salaries and operations. * * *

In June, Floyd County's four judges joined Floyd County Prosecutor Keith Henderson and Sheriff Frank Loop in threatening to not cut their budgets as ordered by the county council.

Floyd County Superior Court No. 1 Judge Susan Orth suggested the county liquidate assets or borrow money to keep from cutting budgets, which was to include a $136,795 deduction from the public safety and legal departments.
What was not suggested, as the county council cannot mandate how departments spend non-reverting funds, was that the judges and prosecutor tap into money they can spend at their discretion.

Chris Lane, the attorney for the county council, said Friday he's finalizing his opinion on whether four probation administrative service accounts and a diversion fund that are under the realm of the judges are non-reverting funds.
Those accounts had more than $590,000 in existing funds as of June 30, and about $365,000 had been spent out of the pot prior to July 1.

"I would say it makes it really difficult for a taxpayer to understand how we have $600,000 in non-reverting funds in probation, but we're not able to make an $80,000 cut in that department," Floyd County Council President Matt Oakley said Friday.

Posted by Marcia Oddi on August 2, 2015 07:20 PM
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - "Peru's fight against the floodplain designation: Peru officials hope new study will lift floodplain restrictions that are hurting the city"

Carson Gerber has a very long, comprehensive story today in the Kokomo Tribune which, along with a sidebar, exhaustively covers flood designations and Peru's problems of changing the same.

See also these Nov. 15 and Nov. 20th, 2004, ILB posts quoting the Indianapolis Star: "Old flood plain maps can lead to trouble." And this Jan. 21, 2007 ILB post quoting the Fort Wayne Journal Gazette on how new flood maps will impact insurance rates.

Posted by Marcia Oddi on August 2, 2015 04:53 PM
Posted to Indiana Government

Ind. Gov't. - More on: "A boom in foreign undergrads is shoring up the finances of America’s flagship universities, but at a price"

Updating this ILB post from June 1st, this lengthy, absolutely fascinating story today by Joesph Paul, in the Lafayette Journal & Courier, is headed "Purdue tuition freezes squeeze out IN students." Just a few quotes:

Since tuition rates were frozen at 2012 levels, 1,228 fewer undergraduates from Indiana attend the West Lafayette research institution, while 336 more non-residents attend the campus, according to the university’s data digest.

Over the past decade, the land grant university has transformed from a majority-resident campus to one that now enrolls more out-of-state and international students. * * *

It’s no secret that out-of-state and international students pay much more to attend Purdue — think the equivalent of private university or Ivy League tuition. And as those applications grow, Purdue can select from the wealthiest, most talented students across the globe. Meanwhile, in-state students have ended up competing for fewer spaces on the prestigious West Lafayette campus. * * *

In the past seven years, Purdue slashed 4,614 spots for resident undergraduates and added 2,108 spots for non-resident undergraduates. At the same time, Indiana University increased the number of residents and non-residents seeking undergraduate degrees by nearly 200 and 1,000, respectively, according to the university’s enrollment reports from 2008 and 2014.

During that time frame, Purdue reduced its share of in-state undergraduates by 10 percentage points, from 65 to 55 percent. IU’s share fell 1.7 points, from 63.2 to 61.5 percent, said David Johnson, IU’s vice provost of enrollment management.

In June, IU’s Board of Trustees voted to freeze undergraduate tuition for the next two years, according to the Associated Press. Johnson said in an email that he doesn’t anticipate the tuition freeze to significantly affect enrollment.

“At IU Bloomington, we are looking to hold relatively flat the number of non-residents we are seeking to enroll this fall,” Johnson said in an email.

Public universities are increasingly becoming “bastions of privilege,” Stephen Burd, a senior policy analyst for the New America Foundation, said in a report titled “The Out-of-State Student Arms Race.”

In a study of 424 public four-year colleges and universities, Burd found nearly half — including Purdue — provided merit aid to at least 10 percent of freshmen who had no financial need. He also found the institutions most entrenched in the practice tend to enroll more non-resident students than residents.

In other words, universities are using money that traditionally went to those with a financial need, Burd said, to entice their highest paying prospects to attend their school. The practice is becoming more and more pervasive nationwide, he noted.

“The search for additional money and the search for more prestige has led to schools looking for more out-of-state, for more affluent students,” Burd said in a phone interview. “And so my big worry with all of this is that you’re not only disadvantaging in-state students but probably the most vulnerable of them with fewer seats left over for lower-income, working-class students. ... (Universities are) spending huge amounts of merit aid on these affluent students so there’s less money for students from lower-income backgrounds.” * * *

Non-resident students comprise the majority on Purdue’s campus as a whole, accounting for 52 percent of the combined undergraduate, graduate and professional student population. In fact, Purdue enrolls more international students than any other public university in the country, according to a report by the U.S. Department of Homeland Security. * * *

“Purdue is becoming an institution of first choice for a lot of non-resident and international students,” said Teresa Lubbers, Indiana commissioner for higher education.

Purdue’s trend is one Lubbers has watched closely as Indiana attempts to build a highly skilled state labor force. Although about 65 percent to 70 percent of Indiana students who apply to Purdue are admitted to the West Lafayette campus, they have had more trouble getting into some of the university’s most selective, sought-after programs, such as engineering.

Posted by Marcia Oddi on August 2, 2015 04:34 PM
Posted to Indiana Government

Saturday, August 01, 2015

Ind. Decisions - "Appeals Court: Evansville PD not shielded from liability in SWAT raid lawsuit"

Yesterday's 7th Circuit decision in Louise Milan v. Billy Bolin (ILB summary here, tweeted as - "J. Posner references Keystone Kops in Evansville opinion") (see also this June 3 ILB post, including links to video of the police raid) is the subject of this long story today (with video) posted mid-afternoon by Mark Wilson of the Evansville Courier & Press. Some quotes:

EVANSVILLE - A federal appeals court said the Evansville Police Department “committed too many mistakes” to be shielded from liability in a woman’s lawsuit over a 2012 SWAT raid on her home.

The ruling, released Friday, compared Evansville police to the comical Keystone Kops of silent film and suggested that broadcast video of the failed SWAT raid on the wrong house may have hurt race relations in the city.

The panel of three appeals court judges upheld a ruling by United States District Court Judge William Lawrence that said Louise Milan’s claim that police used excessive force can receive a jury trial.

“That really was the whole main focus, excessive force. We think the court saw it the way we do and not as police do, and we think the jury is going to see that way too,” said Kyle Biesecker, Milan’s attorney.

Milan’s lawsuit is asking for unspecified damages as a result of the raid, during which police threw two “flash-bang” grenades into the house while attempting to serve a search warrant.

“It’s mostly emotional distress, damages and attorneys fees — and hopefully a policy and procedure change will come out of this so it doesn’t happen again,” Biesecker said.

Milan says police violated her Fourth Amendment Constitutional rights when the SWAT team tossed flash grenades into her home at 616 E. Powell Ave., and forced their way inside to serve a search warrant on June 21, 2012.

Police officers were looking for evidence of anonymous Internet posts to a message board threatening the police department and Chief Billy Bolin. The officers did not find any evidence in the home.

However, police damaged Milan’s house, handcuffed her and her daughter and seized their computers, according to the lawsuit.

Officers were only able to glean while there was an open wireless Internet connection in the home and the threatening posts were not made from inside the house, according to court records.

The following day police arrested Derrick Murray for the threats. He pleaded guilty to a federal charge of transmitting threats in interstate commerce and was sentenced to spend 16 months in prison and then three years on supervised release. * * *

The judges noted that the search of Milan’s home was video recorded by an accompanying television news crew and by a camera on the helmet of a SWAT team member.

In the appeal ruling Posner wrote:

“The handcuffing of the daughter, looking indeed much younger than her 18 years, is shown on the helmet video along with the rest of the search, and she is so small, frail, utterly harmless looking, and completely unresisting that the sight of her being led away in handcuffs is disturbing...there was no conceivable reason to handcuff her.”

He went on to say that, “From what we can observe on the videos, all the members of the SWAT team were white, Mrs. Milan and her daughter black; the broadcasting of the videotape cannot have helped race relations in Evansville.”

Posted by Marcia Oddi on August 1, 2015 08:15 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "State Alcohol and Tobacco Commission offers direction on pavilion liquor license bid"

Updating this ILB post from July 22nd, quoting from a story headed "State recommends local public hearing on pavilion alcohol license," this story July 31st in the Gary Post-Tribune, written by Amy Lavalley, reports:

While the state Alcohol and Tobacco Commission sent a controversial liquor license request back to Porter County, it has formally offered directives for the local board to proceed.

A July 27 letter from the chair of the state's Alcohol and Tobacco Commission directs the Porter County Alcoholic Beverage Commission when the local board gives a second look at a liquor license application from Pavilion Partners LLC. * * *

The local meeting is tentatively scheduled for 10 a.m. Sept. 10 in the commissioners chambers of the Porter County Administration Building in Valparaiso, but David Cook, chair of the state board, said in the letter the county board may want "to find a more suitable location which would facilitate handling of larger crowds or reschedule the meeting… to a time and/or location more suitable for the anticipated crowds." * * *

Cook, who provided the letter to the Post-Tribune, noted "inaccuracies and/or inconsistencies in the permit application," including clarification of whether Chuck Williams, a Valparaiso businessman who is the principle in Pavilion Partners, is the sole owner, and what interest other parties involved have in the entity.

Cook also said that at the initial local board meeting, four people signed in as remonstrators but since then, the state has received 268 letters and emails opposing the permit application and three supporting it.

"They should be made a part of the local board record and considered by the local board in determining the need for those services at the proposed location, the desire for these services in the local neighborhood and community, and whether the proposed services would have a negative impact on other businesses in the neighborhood" according to state statute, the letter states.

Local board member Ralph Levi, who voted in favor of the license with Excise Officer Jamie Patrick in June, said the board would address the state's concerns and see what happens.

"I had nothing at the meeting (in June) other than that people didn't want it. There was nothing precluding giving them a license at the time," he said.

Cook's letter states that "one local board member qualified his no vote because he wanted additional time to have questions answered but that request was denied. The commission believes additional time should have been allowed so all board members are in a position to make an informed vote."

That board member was Rudolf Sutton, who said he had questions about how a new state law allowing alcohol 100 feet from the pavilion would be handled, and who would be in charge of enforcement.

"I thought it was premature to make that decision," he said, adding he's already received around 12 emails and six calls both for and against the license.

"We're going to have to weigh all that out," he said, adding he couldn't recall a license application being returned to the local board from the state. "I'll have a little more information than I had before."

In the NWI Times yesterday Deborah Laverty reported in a story headed "Dunes pavilion group seeking South Shore support":
CHESTERTON | Investors behind the Indiana Dunes State Park pavilion restoration and expansion project came to the Northern Indiana Commuter Transportation District seeking a partnership.

Pavilion Partners LLC spokeswoman Deb Butterfield and member Chuck Williams made a presentation to the NICTD board on Friday.

The two outlined proposed plans for the restoration and expansion and extended a request for a partnership between the two factions.

"We're excited about our plans. We will be neighbors and we want to talk about the synergy that can be created between the two. We hope we will be in communication as plans unfold," Butterfield said.

Williams said a 35-year lease, with two extensions, has been approved between Pavilion Partners and Indiana Department of Natural Resources.

The lease agreement that has been agreed upon is $8,000 per year with 2 percent of sales paid to the state. * * *

Elevators will take visitors to the pavilion roof where events for up to 200 people can take place year-round.

The pavilion roof will include outdoor seating during warm weather months for open air dining and fireplaces to be used during cold weather months.

Work on the banquet center will start in the spring of 2016 and be completed by the spring of 2017.

"We're just starting the design process," Butterfield said.

The economic impact should be a very positive one since it's expected the pavilion banquet facility will bring in some 63,000 guests per year, she said.

Many of the guests will be staying overnight so the banquet facility will bring in some $9 million to the area by those spending money at other businesses such as hotels and restaurants, Butterfield said.

Posted by Marcia Oddi on August 1, 2015 06:37 PM
Posted to Indiana Government

Ind. Decisions - 7th Circuit decided two Indiana cases yesterday

In Louise Milan v. Billy Bolin (SD Ind., Lawrence), an 8-page opinion, Judge Posner writes:

The plaintiff brought suit against the City of Evansville, Indiana, and several of the City’s police officers, contending that the police had used excessive force in the search of her home. The district judge granted summary judgment in favor of the defendants on related claims by the plaintiff, but all that is before us is the defend ants’ appeal from the district judge’s denial of their motion for summary judgment on the excessive-force claim. They argue that qualified immunity insulates them from liability—that is, that there was no established legal principle that would have informed them that they were using excessive force. * * *

But, to repeat for emphasis, the police acted unreasonably and precipitately in flash banging the house without a minimally responsible investigation of the threats. The open network expanded the number of possible threateners and just one extra day of surveillance, coupled with a brief investigation of Murray and the three male Milans, should have been sufficient to reassure the police that there were no dangerous men lurking in the house.

Precipitate use of flash bangs to launch a search has troubled us before, leading us to declare that “the use of a flash bang grenade is reasonable only when there is a dangerous suspect and a dangerous entry point for the police, when the police have checked to see if innocent individuals are around before deploying the device, when the police have visually inspected the area where the device will be used and when the police carry a fire extinguisher.” Estate of Escobedo v. Bender, supra, 600 F.3d at 784–85. The police in this case flunked the test just quoted. True, they’d brought a fire extinguisher with them—but, as if in tribute to Mack Sennett’s Keystone Kops, they left it in their armored SWAT vehicle.

So while the defendants are correct to point out that a reasonable mistake committed by police in the execution of a search is shielded from liability by the doctrine of qualified immunity, Anderson v. Creighton, 483 U.S. 635, 641 (1987), in this case the Evansville police committed too many mistakes to pass the test of reasonableness.

In Shelia B. Stepp v. Carolyn Colvin, Acting Comm., Social Sec. (SD Ind., Hussman, M.J.), a 29-pga eopinion, Judge Flaum writes:

Appellant Sheila Stepp, who suffers from degenerative disc disease and a variety of other impairments, seeks disability insurance benefits under Title II of the Social Security Act. Following a hearing, an Administrative Law Judge (“ALJ”) issued a decision denying Stepp’s claim. While acknowledging that Stepp suffered from chronic pain, the ALJ concluded that surgery, medication, and therapy had resulted in an improvement in Stepp’s condition such that she retained the capacity to engage in sedentary work. Stepp sought review of the ALJ’s decision by the Social Security Administration’s Appeals Council, and submitted additional evidence in the form of medical records created just prior to the ALJ’s denial of her disability claim. This evidence—specifically, the treatment notes of pain management specialist Dr. Allan MacKay—tends to suggest that Stepp’s condition did not improve over the course of the adjudicative period to the extent that the ALJ estimated. The Appeals Council summarily declined to engage in plenary review of the ALJ’s decision and, in so doing, did not expressly ad-dress Dr. MacKay’s notes. The United States District Court for the Southern District of Indiana affirmed the ALJ’s final decision.

Stepp appeals the district court’s determination on two grounds: first, she contends that the ALJ’s denial of her benefits request was not supported by substantial evidence; second, she argues that a remand for further proceedings is necessary in light of the “new and material” evidence presented by Dr. MacKay’s medical records. We believe that the ALJ properly analyzed a range of conflicting testimony and medical opinions and reached a conclusion adequately sup-ported by the record before her. However, we agree with Stepp that the denial notice from the Appeals Council indicates that the Council did not accept Dr. MacKay’s treatment notes as new and material evidence, and we conclude that the Council made that determination in error. We therefore remand the case to the agency so that it may re-evaluate Stepp’s condition in light of the information presented in Dr. MacKay’s notes.

Posted by Marcia Oddi on August 1, 2015 03:23 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Law - ILB Legislative Research Shortcuts Updated for 2015

The ILB has updated its simplified research ("shortcuts") page, "The Indiana Law Blog's Legislative Research Shortcuts."

  • Conversion Tables. Starting from the top, we have the Conversion Tables. House and Senate bills that pass the General Assembly and become law are assigned new numbers, Public Law numbers. The conversion tables allow you to easily convert between the Bill Nos. and PL Nos. for each session, going back to 1999.

  • Legislative Bills. This section allows you to quickly access any specific legislative Bill Page in any session, from 1999 to 2015. From the Bill Page, you will be able to find the various versions of the bill, and all the action. Notice that starting with 2014, because of the GA's revision of its website, you will encounter an additional step.

  • Other Useful Tables. On the left are the Enrolled Act Summaries going back to 1999, which include the effective date of every section. On the right are the invaluable Tables of Citations Affected, listing every provision of the Indiana Code added, amended or repealed in every session going back to 1999.

  • Title Recodification Tables. From time to time the General recodifies an Indiana Code title, rearranging the sections and giving them new IC numbers, without substantive change. To find the derivation of a recodified section, or the disposition of an section since recodified, refer to the tables on the ILB's Shortcuts page.

    The new GA page listing all the Historical Tables is also useful and is linked in the ILB's Shortcuts. One problem, however, is that the GA's Derivation/Disposition Tables do not identify the underlying legislation which effectuated the recodification. For instance, PL 1-1996 resulted in the recodification of Title 13. But you do not find that information on the GA's Derivation/Disposition Tables for Title 13. But you do find it right in the ILB's Title 13 pull-down menu heading: "Tile 13 Disposition Table (PL 1-1996)."

  • The ACTS of INDIANA from 2000 to 2015. The are the Enrolled Acts of each session, arranged and published in order of their assigned Public Law numbers.

  • The INDIANA CODE, including editions back to 2009. The first link is to the current, 2015 Indiana Code, listed by Title. If you click on one of the Titles, you will get the entire Title, which may be hundreds of pages long. Often this is useful. But sometimes it is not.

    If instead of clicking on a Title in the list, you use the pull-down menu near the top to select a Title, the pull-down menu will next give you an additional pull-down menu to select an Article, and the left column then will present the list of Chapters of the selected Article.

    Earlier editions of the Indiana Code can be particularly valuable to locate the text of repealed provisions.

    Great care always must be taken to make certain you are accessing the correct Indiana Code language. You may use the URL to check this. The current (2015) Indiana Code's URL is http://iga.in.gov/legislative/laws/2015/ic/. Note the "2015." An earlier version will read differently, for example "https://iga.in.gov/legislative/laws/2009/ic/". Exercise particular caution and check the URL when using a link from another source, such as Google.

Here is a list of earlier ILB entries on the Legislative Research Shortcuts page.

Posted by Marcia Oddi on August 1, 2015 01:49 PM
Posted to Indiana Law

Friday, July 31, 2015

Ind. Courts - E-filing already is underway in some Indiana trial courts

The ILB last posted on e-filing in this July 24th entry on amendments to Rule 86. The day before, on July 23rd, the Court had posted an "E-Filing Implementation Schedule" which provided that voluntary e-filing for specified categories of civil cases was to go into effect in Hamilton County's Circuit and Superior Courts as of July 29th.

Although e-filing is technically available to everyone starting July 29th, Hamilton County firms are being ushered into the process gradually over the next few weeks, with training available now for everyone who wants to begin e-filing. After that initial roll-out, the plan after August 12th is for things to move faster. After 30 days experience on the civil side, e-filing on the Hamilton County criminal side will be added. But it is all still voluntary.

Wells County will be next, then other Odyssey counties will be added, one or two at a time.

Looking at the big picture, trial court e-filing is planned to be completely implemented by 2018, with all documents listed in the online docket and available with a mouse-click. During the pilot projects, however, such documents will be available only to the parties. [The ILB hopes that at least trial court opinions will be universally available via the online docket long before 2018.]

In order to e-file, an attorney will need to be registered. Training will be available and encouraged (sign up here), but the ILB has been told that the system is fairly intuitive for those who have done other e-filing. The e-filing process involves an intermediary or interface between the attorney and the court. Tyler Technology has been selected to fill that role, but other e-filing service providers offering additional bells and whistles for a fee are expected to sign up.

Currently, the Court has adopted a "bare bones" version of Rule 86, the e-filing rule, which will be fleshed out with experience.

The Court’s e-filing webpage
has the latest developments, so check it regularly.

What about appellate e-filng? Good news here. October or November of this year is the current anticipated date for the beginning of an appellate e-filing project. More details will be released as that date approaches. Ultimately the goal is to have an appellate docket with links to e-filed appellate documents available to the public just as court orders are currently, but it is unknown whether that will happen immediately with the pilot project or whether it will have to wait until the trial courts do the same.

Funding for e-Filing.
The 2015 budget bill, HEA 1001, provides at p. 11:

INDIANA COURT TECHNOLOGY
Judicial Technology and Automation Project Fund (IC 33-24-6-12)
Total Operating Expense-----14,500,000-----14,500,000
The above appropriation includes funding to develop and implement a statewide electronic filing system for court documents, a case management system, and a public defender case management system.
In addition, SECTION 258, on p. 250, raises the automated record keeping fee (ARK) in most actions from $5 to $19. This change is described in detail in the final fiscal note to HEA 1001, at p. 22.

Posted by Marcia Oddi on July 31, 2015 03:00 PM
Posted to Indiana Courts

Ind. Decisions - More on: 7th Circuit decides one Indiana case today, declines to follow 9th Circuit approach

The ILB has remarked in the past on the commendable way the 7th Circuit announces and publishes corrections to its opinions. An order has now been issued correcting the July 29th opinion in USA v. Lee, accompanied by an "Amended" opinion (duly identified).

What was the error? The argued date is incorrectly listed in the first version.

Posted by Marcia Oddi on July 31, 2015 11:58 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Odd thing about the Court's Appellate Decisions page

Something the ILB has noticed recently on the Court's Appellate Decisions page.

I have my Firefox browser set so that I can see the URL of the page I am loading. When loading the "Recent Opinions" link of, for instance, the COA column, first the info box shows "http://www.in.gov/judiciary/opinions/appeals.html," which is the link to the COA recent opinions page. And the complete list of cases appears on the screen.

BUT the loading activity continues on for some time in the background, with the info box now showing "Transferring data from www.mengage.com." Does anyone know what exactly is going on? Exactly what data is being transferred?

Posted by Marcia Oddi on July 31, 2015 11:38 AM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 12 NFP memorandum decisions)

For publication opinions today (2):

In Harold Bishop v. State of Indiana, a 33-page opinion, Judge Brown writes:

Harold Bishop appeals his conviction for murder. Bishop raises four issues, which we consolidate and restate as whether the trial court abused its discretion in admitting certain evidence. We affirm. * * *

Bishop challenges the court’s decision to admit three separate pieces of evidence: (A) Shabazz’s identification of Bishop as the person who shot him; (B) evidence of the similarity between the fired cartridge casings recovered from the Shabazz shooting crime scene and the Cullens shooting crime scene; and (C) the circumstances of the Cullens shooting pursuant to Ind. Evidence Rule 404(b). * * *

Today, we formally recognize that dying declarations as provided by Ind. Evidence Rule 804(b)(2) are excepted from the right of confrontation provided by the Sixth Amendment. * * *

We conclude that the court did not abuse its discretion by allowing the State to present expert testimony regarding the casings. * * *

We conclude that based upon the closeness in time, place, and circumstances, of the two shootings, including the forensic evidence showing that the same firearm was used at each shooting within hours of each other, the evidence presented of the Cullens shooting was relevant, and its probative value outweighed any prejudice to Bishop. The court did not abuse its discretion in admitting this evidence.

In Kent Akins v. State of Indiana , a 7-page opinion, Sr. Judge Darden writes:
Kent Akins appeals the trial court’s order requiring him to pay restitution to the City of Indianapolis. We reverse and remand for an evidentiary hearing. * * *

Akins and the State entered into a plea agreement. Akins agreed to plead guilty as charged. * * * Akins also agreed as a condition of probation to pay restitution to the “City of Indianapolis” in an amount to be set by the court. * * *

The State requested $27,966.71 in restitution arising from Officer Keyes’ injury. Akins argued that the State’s request for restitution was inappropriate because there was no evidence to support the allegations that he caused Officer Keyes’ injury and the increasing medical expenses and bills. Without more, the court ordered Akins to pay restitution in the amount of $27,966.71 and entered a civil judgment against Akins. This appeal followed. * * *

In this case, the State correctly concedes that there is no evidence in the record that Akins caused Officer Keyes’ leg injury. Indeed, there is no evidence that Officer Keyes’ injury occurred in connection with Akins’ arrest. * * *

Under these circumstances, the trial court’s restitution award was against the logic and effects of the facts and circumstances, and we must reverse.

NFP civil decisions today (1):

In the Matter of the Term. of the Parent-Child Relationship of: O.Q., a Minor Child, L.Q. v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (11):

Todd Crane v. State of Indiana (mem. dec.)

Jonathan Diaz v. State of Indiana (mem. dec.)

Zachary D. Reinders v. State of Indiana (mem. dec.)

Jason L. Caldwell v. State of Indiana (mem. dec.)

Kenneth George Wolfe v. State of Indiana (mem. dec.)

Eric L. Davis, Sr. v. State of Indiana (mem. dec.)

Eric Joya v. State of Indiana (mem. dec.)

Kenyon Sanders v. State of Indiana (mem. dec.)

Danny Bailey v. State of Indiana (mem. dec.)

Christopher M. Knight v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on July 31, 2015 10:10 AM
Posted to Ind. App.Ct. Decisions

Thursday, July 30, 2015

Ind. Decisions - Tax Court issues one today

In Aztec Partners, LLC v. Indiana Department of State Revenue, a 4-page opinion on a petition for rehearing, Judge Wentworth concludes:

The Court, therefore, stands by its decision in Aztec Partners in its entirety.

Posted by Marcia Oddi on July 30, 2015 04:24 PM
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - Update on "Deregulation of engineers draws fire" [Updated again]

Updating this ILB post from July 27th, which quoted Niki Kelly's earlier Fort Wayne Journal Gazette story, Kelly reports this afternoon in a story headed "Pence against deregulation for engineers." Some quotes:

INDIANAPOLIS - An effort to eliminate licensing for engineers could be dead before it even got started.

That's because Gov. Mike Pence has come out against the preliminary recommendation made by a committee tasked to review dozens of Indiana's licensed professions.

"The governor believes it is a mistake not to license engineers and will make sure the recommendation to do so does not stand," said Kara Brooks, spokesman for Pence.

The Jobs Creation Committee has issued preliminary findings on 11 occupations but a more in-depth public hearing will be held Aug. 20. And the Indiana General Assembly would have to eliminate the licensing in the next session.

The engineering recommendation is getting the most attention so far, but hearing aid dealers, auctioneers and home inspectors could also be affected.

The American Council of Engineering Companies sent an email to Indiana firms this week that are part of the trade association saying it will refute the conclusions of the group's annual report at the upcoming meeting.

The group also urged Pence's administration to go on the record about the licensing issue, which the governor now has.

The Jobs Creation Committee is working to review the occupations licensed by the Indiana Professional Licensing Agency. * * *

By a 5-0 vote, the [JCC] recommended Indiana no longer oversee or administer engineering licenses. The minutes note only one license has been revoked since 2008.

"It is the JCC's opinion that there is adequate regulatory oversight from other governmental agencies when it comes to the work performed by the engineer in their construction/design," the draft minutes said.

[Updated 8/2/15] The Fort Wayne Journal Gazette has an editorial today headed "Licensing rollbacks being driven by dogma."

Posted by Marcia Oddi on July 30, 2015 04:12 PM
Posted to Indiana Government

Ind. Decisions - A third Supreme Court opinion today; this one on grandparent visitation

In In Re the Visitation of L-A.D.W., R.W. v. M.D. and W.D., a 17-page opinion in which 2 justices concur only in the result, Justice David writes:

After a hearing, in which two mental health experts opined on what would be in the best interest of L-A, the trial court determined that it was in L-A’s best interest to have a meaningful and ongoing relationship with Grandparents. The trial court ordered a visitation schedule, which followed the visitation schedule that was initially recommended by one of the mental health experts. This schedule was crafted to allow L-A to transition into the primary care of her Father.

Father appealed, arguing that the trial court failed to give special weight to his decisions regarding L-A’s upbringing, or to properly apply the presumption that a fit parent acts in the child’s best interest. Father also disputed the amount of visitation that was awarded. On appeal, the Court of Appeals affirmed the trial court’s order for grandparent visitation but reversed and remanded on the amount of visitation, determining that the amount of visitation exceeded the “occasional, temporary visitation” that is permitted under the Grandparent Visitation Act. In Re Visitation of L-A.D.W., 24 N.E.3d 500, 516 (Ind. Ct. App. 2015) (citation omitted). [Jan. 13, 2015]

Although the Court of Appeals found that the amount of visitation was improper under the Grandparent Visitation Act, the court first noted that “Indiana courts have not established a set standard for ‘occasional, temporary visitation.’” Id. at 515 (citation omitted). Thus, the court looked to past decisions for guidance. Id. We likewise recognize that this Court has not provided a standard for determining what amount of visitation is appropriate under the Grandparent Visitation Act. However, we are not convinced that precedent compels finding an abuse of discretion in the current case. Although we do not seek to set out steadfast rules regarding the permissible amount of visitation that can be ordered, transfer is granted to reaffirm the discretion of the trial court in assessing what amount of visitation would be in the child’s best interests. After reviewing the circumstances of this particular case, we hold that the trial court did not abuse its discretion in setting the amount of grandparent visitation. We affirm the entirety of the trial court’s order granting grandparent visitation. * * *

Conclusion. We summarily affirm the Court of Appeals in upholding the award of grandparent visitation. We also hold that the trial court did not abuse its discretion in the amount of visitation that it granted to Grandparents under the Grandparent Visitation Act. Accordingly, the trial court’s order on grandparent visitation is affirmed. Dickson and Massa, J.J., concur.

Rush, C.J., concurs in result only with separate opinion in which Rucker, J., joins.

Rush, J., concurring in result. [which begins at p. 15] I concur fully with the majority, except as to its analysis of the quantity of visitation awarded—and even on that issue, I concur in result. In K.I., and again in M.L.B., we cautioned that the amount of grandparent visitation must be carefully limited so as not to impede parents’ fundamental constitutional right to direct their children’s upbringing. In my view, the majority’s reliance on our usual “deference to trial judges in family law matters” insufficiently protects the parent’s constitutional rights and risks allowing excessive awards to escape meaningful appellate review. But even under the closer scrutiny I would apply, the trial court’s award of 24 overnights per year, plus short visits weekly and for a few special occasions, does not unduly infringe on Father’s parental rights under these circumstances.

The majority rightly recognizes our prior admonitions that “[t]he Grandparent Visitation Act contemplates ‘only occasional, temporary visitation’” and that grandparents’ statutory right to seek visitation must remain secondary to natural parents’ “fundamental constitutional right to direct their children’s upbringing without undue governmental interference.” * * *

My disagreement is only with the majority’s reluctance to craft “strict standards on the amount of permissible visitation.” Slip op. at 13. In my view, K.I. and M.L.B. have already imposed a very strict standard indeed—though not one that can be quantified as a bright-line number of days or hours—in order to protect the natural parents’ constitutional rights as Troxel v. Granville, 530 U.S. 57 (2000), demands. Under that standard, similarity to the Parenting Time Guidelines becomes problematic not when a grandparent’s visitation coincides with too many school vacations or family birthdays as the majority suggests, see slip op. at 8 n.6, but when the overall quantity becomes excessive—too closely mirroring the amount of time that would ordinarily be reserved for a natural non-custodial parent. The quantity awarded in any particular case is, of course, a dis-cretionary judgment—but the constitutional protections in K.I. and M.L.B. limit that discretion considerably. Accordingly, I find it unhelpful to frame this issue as involving our usual “substantial deference to the trial court’s determination of family law matters.” Slip op. at 8.

ILB: The ILB would be pleased to post a thoughtful analysis of this and related Indiana grandparent visitation opinions.

Posted by Marcia Oddi on July 30, 2015 03:42 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Still more on "Lake Michigan lakefront homeowners do not own the beach"

Updating this ILB entry from Tuesday, which quoted from the 22-page opinion, Stan Maddux of the South Bend Tribune has written a comprehensive story on the dispute.

Here is the same story in the NWI Times.

Posted by Marcia Oddi on July 30, 2015 02:05 PM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Trial Court vacancies awaiting action by Gov. Pence

If you check the Indiana Governor Mike Pence Judicial Appointments page today, you will see nothing. No information listing past circuit or superior court appointments, nothing on: current vacancies, availability of application forms, list of applications received, etc.

Yet Mark Wilson reports today in the Evansville Courier & Press in a long story headed "Five seeking Warrick court appointment":

Boonville, Ind. - Five applicants are being considered to take the place of Warrick Superior Court No. 1 Judge Keith Meier, who is retiring Aug. 31.

Gov. Mike Pence will appoint someone to carry out the remaining three-and-a-half years of Meier’s term.

Kara Brooks, press secretary to Pence, identified the applicants as: Todd Corne, Amy Steinkamp Miskimen, Gary Schutte, Jacob Winsett and Jonathan Young.

Meier announced his retirement in June and the governor’s office received applications and nominations for his replacement until July 15. There is no deadline for Pence to make the appointment.

If the process lingers past Meier’s last day, the Indiana Supreme Court can appoint someone to temporarily preside over the court until Pence makes a decision.

Scrolling back through the entries on the Governor's news release page for June and Julu, there is no mention of any trial court openings.

There is this item from July 17 headed "Governor Pence Names Robert Altice as New Court of Appeals Judge." But it makes no mention of the coming Marion Superior Court vacancy which is created by Judge Altice's selection for the Court of Appeals position - that position will become vacant August 31, 2015, with the retirement of Judge Ezra Friedlander.

There is some information at Ballotpedia
, but it appears sketchy and incomplete.

Posted by Marcia Oddi on July 30, 2015 01:27 PM
Posted to Indiana Courts

Ind. Law - Indiana Tax Amnesty Emergency Rules now in effect

The Tax Amnesty Emergency Rules, provisions to explain and implement the Tax Amnesty Program as contained in HEA 1001-2015, have been published in the Indiana Register and became effective July 27, 2015.

For more, see this June 29th ILB post.

Posted by Marcia Oddi on July 30, 2015 11:59 AM
Posted to Indiana Law

Courts - "D.C. Circuit to Combat 'Link Rot' in Court Rulings"

Zoe Tillman reports in The National Law Journal in a story that begins [and BTW, it mentions the ILB]:

Hundreds of opinions published by the U.S. Court of Appeals for the D.C. Circuit over the past decade include links to websites for news articles, government reports and an array of other web-based content. The court doesn’t know how many of those links no longer work—known as “link rot”—but administrators will take steps this fall to fight the effects of the decay.

Starting in September, the court will archive the contents of websites that judges link to in opinions and make those documents available on the public docket online. The program, which mirrors what some other circuits are already doing, was spearheaded by Circuit Librarian Pat Michalowskij. * * *

The federal judiciary has been aware of “link rot” for years. In 2009, the Judicial Conference of the United States, the judiciary’s policymaking arm, adopted suggested guidelines for the use of internet citations in opinions. According to a Judicial Conference memo posted online by The Indiana Law Blog, the conference recommended a course of action similar to the one the D.C. Circuit is adopting this fall: making a copy of the contents of a website cited and including that copy in the public docket.

The Judicial Conference noted that courts might have to limit public access to any copyrighted materials online that were cited in opinions. If courts archived web pages with copyrighted content, the conference said they should capture copyright notices that appear with those materials. Courts would also have to consider asking for permission to republish certain content or delay making it publicly accessible, according to the memo.

Posted by Marcia Oddi on July 30, 2015 11:42 AM
Posted to Courts in general

Ind. Decisions - Supreme Court decides two today

In Craig Sampson v. State of Indiana, a 10-page, 5-0 opinion, Justice Rucker writes:

Craig Sampson appeals his conviction for child molesting contending it must be vacated and this cause remanded for a new trial because, among other things, improper vouching testimony was allowed into evidence. We affirm the judgment of the trial court. * * *

At stake in this case was the credibility of the alleged victim, S.B., who was thoroughly questioned on cross-examination and whose testimony did not waver from that given during direct examination.

In Gary Sistrunk v. State of Indiana, a 5-page, 5-0 opinion, Justice Rucker writes:
Gary Sistrunk challenges his convictions for robbery and criminal confinement as class B felonies contending, among other things, they violate Indiana’s constitutional ban on double jeopardy. We affirm the judgment of the trial court. * * *

In sum, our jurisprudence teaches that committing two or more separate offenses each while armed with a deadly weapon—even the same weapon—is not within the category of rules precluding the enhancement of each offense based on “the very same behavior.” Stated somewhat differently, our recognition in Richardson of the common law rule establishing that enhancements cannot be imposed for the very same behavior could not have included use of a single deadly weapon during the commission of separate offenses. And this is so because no such common law rule existed. Instead the opposite was true.

Posted by Marcia Oddi on July 30, 2015 11:14 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 5 NFP memorandum decisions)

For publication opinions today (1):

In Gabriel Kowalskey v. State of Indiana , an 18-page opinion, Judge Brown writes:

Gabriel Kowalskey brings this interlocutory appeal from the decision of the trial court that he, by his conduct, waived his right to counsel. Kowalskey raises two issues which we revise and restate as whether the court erred in finding that, by his conduct, he waived or forfeited his right to counsel. We reverse and remand. * * *

The issue is whether the trial court erred in finding that Kowalskey, by his conduct, waived or forfeited his right to counsel. He contends that he was not advised of any of the pitfalls of self-representation or advantages of being represented by an attorney, that there was no voluntary, knowing, and intelligent waiver of his right to counsel, that the record does not establish obstreperous conduct on his part, and that there was insufficient evidence of antagonistic conduct to conclude that he forfeited his right to counsel. Kowalskey argues that the court advised him, at the time it appointed Oliver, that if he did not get along with his new attorney the court would at that time advise him of the dangers and risks of self-representation, and that the court never gave him the required Gilmore warnings. He argues that the court took no affirmative step to ensure he appreciated the dangers and disadvantages of self-representation, that there was no analysis of whether he had made a knowing and intelligent waiver of his right to counsel, and that there was no on-the-record evidentiary hearing where specific findings were made as required by Gilmore. Kowalskey maintains that many of the waiver-by-conduct cases involve defendants whose conduct appeared to constitute determined efforts to manipulate and obstruct the trial process, that the record here shows his earnest struggle to push the process forward and not thwart the State’s efforts to prosecute him, and that his actions were aimed at obtaining the evidence needed to challenge the State’s case.

The State asserts that, while there is no dispute that Kowalskey did not affirmatively waive his right to counsel, the trial court properly found that he forfeited or waived his right to counsel through his conduct. It argues that the court held a hearing as required by Gilmore and sufficiently warned Kowalskey of the consequences of his conduct to allow the court to subsequently determine that he had forfeited his right to counsel. * * *

Based upon the record, Gilmore, and Poynter, and mindful that the law indulges every reasonable presumption against a waiver of the fundamental right to counsel, we conclude that the trial court erred in finding that Kowalskey, by his conduct, waived his right to pauper counsel. See Poynter, 749 N.E.2d at 1124-1128; Gilmore, 953 N.E.2d at 589-593. Accordingly, we reverse the order of the trial court and remand for further proceedings.

NFP civil decisions today (0):

NFP criminal decisions today (5):

Jeremy Farris v. State of Indiana (mem. dec.)

Ashley L. Stapert v. State of Indiana (mem. dec.)

Walker Whatley v. State of Indiana (mem. dec.)

Ronald Moore v. State of Indiana (mem. dec.)

Tammie D. Wasson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 30, 2015 10:59 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "7th Circuit roundly rejects 3rd Circuit ‘ascertainability’ framework"

Alison Frankel of Reuters' "On the Case" wrote yesterday on Tuesday's 7th Circuit opinion in Mullins v. Direct Digital. The long story begins:

Class action lawyers may want to get up a petition to declare July 28 “Judge David Hamilton Day” because they could not have asked for a stronger defense of class actions – and the existing federal rules governing class certification – than they received Tuesday in Hamilton’s opinion for a three-judge panel of the 7th U.S. Circuit Court of Appeals in Mullins v. Direct Digital. The 7th Circuit scrutinized the 3rd Circuit’s controversial requirement of a “reliable and administratively feasible” way to ascertain class membership – and wholly rejected it. According to Judge Hamilton and his panel colleagues, Judges William Bauer and Michael Kanne, the 3rd Circuit’s 2013 ruling in Carrera v. Bayer upset the federal rules’ carefully wrought framework for class certification.

“The heightened ascertainability requirement,” the opinion said, “gives one factor in the balance absolute priority, with the effect of barring class actions where class treatment is often most needed: in cases involving relatively low-cost goods or services, where consumers are unlikely to have documentary proof of purchase.”

The 7th Circuit’s precedent, Judge Hamilton wrote, already requires trial courts to deny certification to proposed classes that are too vaguely defined, rely on subjective criteria such as someone’s state of mind, or contain “fail safe” provisions that depend on the defendant’s liability. And according to the 7th Circuit, that’s enough.

The court considered four policy justifications for a heightened ascertainability requirement: administrative convenience, unfairness to absent class members, unfairness to bona fide class members, and due process for defendants. According to the 7th Circuit, the procedural rules for class actions – which don’t specifically address ascertainability – already take care of those concerns.

Moreover, the 7th Circuit said (quite sensibly), it doesn’t make any sense to refuse to certify classes to protect absent and bona fide class members under the theory that they may not get the recovery they’re entitled to unless plaintiffs can show a way to weed out unqualified class members. Without certification, Judge Hamilton wrote, those class members will receive nothing.

“In general, we think imposing this stringent version of ascertainability does not further any interest that is not already adequately protected by the (federal) rule’s explicit requirements,” the opinion said. “On the other side of the balance, the costs of imposing the requirement are substantial.”

Importantly, the 7th Circuit explicitly said affidavits from class members are an acceptable way to ascertain who is in a class – a methodology the 3rd Circuit specifically ruled out in its Carrera decision. Judge Hamilton said that as long as defendants have an opportunity to challenge “self-serving affidavits from plaintiffs,” ascertaining class membership through plaintiffs’ testimony doesn’t impinge on defendants’ rights. After all, he said, “we are aware of only one type of case in American law where the testimony of one witness is legally insufficient to prove a fact” – and that’s prosecution for treason. “There is no good reason to extend that rule to consumer class actions,” Hamilton wrote.

The 7th Circuit said it agreed to consider Digital Direct’s interlocutory appeal because it wanted to address what it called “the recent expansion of ‘ascertainability.’”

The ILB recommends for reading both the remainder of the article, plus the opinion itself.

Posted by Marcia Oddi on July 30, 2015 10:15 AM
Posted to Ind. (7th Cir.) Decisions

Wednesday, July 29, 2015

Ind. Decisions - Supreme Court issues one opinion today, re a petition on rehearing

In Wellpoint, Inc. (F/K/A Anthem, Inc.) and Anthem Insurance Companies, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA, AIG Europe (U.K.) Limited, et al, a 6-page opinion on a petition for rehearing, Justice Dickson writes:

Appellees Continental Casualty Company and Twin City Fire Insurance Co. (collectively "CNA"), have petitioned for rehearing with respect to our opinion in this matter, Wellpoint, Inc. v. Nat'l Union Fire Ins. Co., 29 N.E.3d 716 (Ind. 2015). The petition asserts a single claim—that a portion of our opinion exceeds the power granted by Trial Rule 56(B), which states that "[w]hen any party has moved for summary judgment, the court may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party." T.R. 56(B) (emphasis added). CNA does not challenge our reversal of the trial court's grant of its motion for summary judgment, but argues that our opinion should not have also granted summary judgment for Anthem as to issues not raised by CNA's summary judgment motion. CNA seeks modification of the fifth paragraph of our opinion to clarify that its summary judgment motion "raised only certain issues of law prior to the close of discovery," Pet. for Reh'g at 13, and revision of our concluding language that could be read to foreclose de-fenses not raised in the summary judgment proceedings. Appellants Wellpoint, Inc. and Anthem Insurance Companies, Inc. (collectively "Anthem") respond that summary judgment in Anthem's favor is proper and further that CNA has waived any additional affirmative defenses.

We agree Trial Rule 56(B) limits our authority to grant summary judgment for Anthem to the issues raised in CNA's motion. Before the trial court, CNA requested summary judgment in its favor on certain enumerated counts/claims for the reasons set forth in its supporting memorandum. * * *

[The opinion then specifies several modification to the opinion, in para 5 and the conclusion.]

Our opinion in this case is modified accordingly but in all other respects remains in full force.

Rush, C.J., and Rucker, David, and Massa, JJ., concur.

Posted by Marcia Oddi on July 29, 2015 04:11 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Still more on fenced hunting

Supplementing this ILB post from July 27th, Niki Kelly of the Fort Wayne Journal Gazette also reported on the proposed trade group voluntary program to attempt to police captive hunting.

And today WFYI Indianapolis has an AP story, dateline Corydon, headed "Indiana Supreme Court Decision Renews Fenced Hunting Debate."

Posted by Marcia Oddi on July 29, 2015 02:22 PM
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides one Indiana case today, declines to follow 9th Circuit approach

In USA v. Robert Lee (ND Ind., Miller), an 11-page opinion, Chief Judge Wood writes:

While Robert L. Lee was on super-vised release, his probation officer learned that he had as-saulted his girlfriend Shelish Pulliam with a small souvenir baseball bat. The district court issued a warrant for Lee’s ar-rest and initiated proceedings to revoke his supervised re-lease. At the revocation hearing, the government offered the testimony of several law enforcement and medical personnel who interviewed or treated Pulliam. Pulliam had told each of them that Lee was the perpetrator. When Pulliam took the stand, however, she recanted and said that she had made up the assault story because she was mad at Lee. She explained her injuries, which were well documented, as the result of her tripping and falling down the stairs. After reviewing several Indiana criminal provisions, the court concluded that Lee had committed the offense of assault with a deadly weapon. On that basis, it revoked Lee’s supervised release and imposed a four-year term of imprisonment.

Although he did not raise this point in the district court, Lee now argues that he was denied due process under both the Fifth Amendment and Federal Rule of Criminal Proce-dure 32.1 because he did not receive adequate written notice of the precise crime that ultimately led to the revocation. Lee asks us to adopt a per se rule that only the citation to a specific statute will suffice to provide written notice of the alleged violation. Only the Ninth Circuit has gone this far. We are not persuaded that either the criminal rules or the Constitution requires this approach, and so we decline the invitation to abandon our own more flexible practice and join the Ninth Circuit. * * *

The petition to revoke Lee’s supervised release provided adequate written notice of the asserted grounds for revocation, as required by Rule 32.1 and the Constitution. Accordingly, we AFFIRM the district court’s revocation of Lee’s su-pervised release.

Posted by Marcia Oddi on July 29, 2015 02:04 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 5 NFP memorandum decisions) [Updated]

For publication opinions today (3):

In In Re the Marriage of: Amy Steele-Giri v. Brian K. Steele, a 30-page, 2-1 opinion, Judge Riley writes:

Appellant-Respondent, Amy Steele-Giri (Mother), appeals the trial court’s order denying her petition for modification of custody of the minor child, J.S., and rule to show cause in favor of Appellee-Petitioner, Brian K. Steele (Father). * * *

We reverse the trial court’s Order, grant physical custody of J.S. to Mother, and remand to the trial court for determination whether joint legal custody would be in J.S.’s best interest and to establish Father’s parenting schedule in line with the parenting time guidelines where distance is a factor. Additionally, we reverse the trial court’s denial of Mother’s petition for rule to show cause, find Father in contempt, and remand to the trial court for determination of Mother’s monetary damages, if any.

Bailey, J. concurs
Barnes, J. dissents with separate opinion [which begins on p. 29 and concludes] In my opinion, this is not a case in which the evidence compels the modification of custody to Mother. Despite evidence of both parents’ shortcomings, the guardian ad litem testified that Mother and Father “are good involved parents” and agreed that J.S. has “a wonderful relationship with each of her parents[.]” Tr. pp. 70, 67. The guardian ad litem declined to make a firm recommendation in this case because it was “such a close call.” Id. at 66. Based on this evidence, I believe this is the very circumstance in which long-standing precedent requires us to defer to the trial court’s assessment of witnesses and to affirm the trial court’s decision. For these reasons, I dissent.

In Town of Whitestown, Indiana v. Rural Perry Township Landowners , a 26-page opinion, Judge Barnes writes:
In 2013, the Town of Whitestown (“Whitestown”) adopted an ordinance annexing unincorporated portions of Perry Township adjacent to the town. Rural Perry Township landowners (“the Remonstrators”) filed a petition to defeat the annexation. The trial court found that the Remonstrators had satisfied statutory conditions required to defeat the annexation and ordered that the annexation not occur. Whitestown now appeals.

We reverse and remand for entry of judgment in favor of Whitestown.* * *

The trial court erred in its interpretation of Indiana Code subsections 36-4-3-13(c) and (e), and in its application of the statutory provisions to its findings of fact. We accordingly reverse the trial court’s judgment, and remand the case with instructions to enter judgment in favor of Whitestown with respect to the Remonstrators’ challenge to the Annexation Ordinance.

[Updated at 2:56 PM] See new Indianapolis Star story here, "Whitestown wins appeal over Perry Township land owners."

In In re the Custody of: M.B. b/n/f Stephanie Choate and Dustin Choate v. Shalena Barnes and Stephen West, a 9-page opinion, Judge Robb writes:

Stephanie Choate and Dustin Choate appeal the dismissal of their independent action seeking emergency custody of Stephanie’s niece, M.B., who had been adjudicated a child in need of services (“CHINS”) in a separate proceeding.1 They raise two issues, one of which we find dispositive: whether the trial court erred in dismissing their action. Concluding the trial court did not err because it had no jurisdiction over a separate custody petition when a CHINS proceeding was pending in the juvenile court, we affirm.
NFP civil decisions today (1):

Billy L. Haymaker v. Victoria L. Haymaker (mem. dec.)

NFP criminal decisions today (4):

William Goodwin v. State of Indiana (mem. dec.)

Yorel M. Wallace v. State of Indiana (mem. dec.)

Connie Kidd v. State of Indiana (mem. dec.)

Cornelius T. Banks v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 29, 2015 01:06 PM
Posted to Ind. App.Ct. Decisions

Tuesday, July 28, 2015

Ind. Decisions - More on "Lake Michigan lakefront homeowners do not own the beach"

Updating yesterday's post, the ILB has now obtained a copy of the 22-page ruling of Judge Richard R. Stalbrink, Jr., LaPorte Superior Court 2, in Gunderson v. State. Here are some quotes from the opinion:

The Gundersons claim that their deed conveyed complete and exclusive ownership in their lot to the water's edge of Lake Michigan and that the members of the public have no rights to the land not covered by water. The Defendants and Intervemor-Defendants argue that the State owns the land up to the ordinary high water mark ("OHWM") regardless of whether it is covered by water. The Defendants and. Intervemor-Defendants further argue that the State holds this land in trust for the benefit of the public. The parties' arguments draw from and rely on the doctrines of Equal Footing and Public Trust, two very old doctrines with an entwined history. This is a case of first impression in Indiana and as such, this Court looks to Indiana Law, our sister Great Lake States, and other States for guidance. * * *

The Gundersons contend that deeds are prima facia proof of ownership. The Gundersons further contend that, because their deed cites to the Plat, and the Plat states no northerly dimension, their lots run to the water's edge of Lake Michigan. * * *

According to the equal footing doctrine discussed above, Indiana received the lands beneath the OHWM upon becoming a state. See Shively, 152 U.S. at 26 ("The new states admitted into the Union since the adoption of the constitution have the same rights as the original states in the tide waters, and in the lands below the high-water mark, within their respective jurisdicuons (sic)." (emphasis added)).

Thus, this Court finds that when Indiana became a State, it received, and held in trust for the public, all lands below the OHWM regardless of whether the land is temporarily not covered by water. This Court also notes that this finding is not a completely new conclusion for Indiana. See United States v. Carstens, 982 F. Supp. 2d 874,878 (N.D. Ind. 2013) ("The land between the edge of the water of Lake Michigan and the ordinary high water mark is held in public trust by the State of Indiana.") * * *

In their Motion for Declaratory Summary Judgment, the Gundersons argue that they own their property to the water's edge and that there is no public trust right for the public to occupy or use the land not covered by water. The Gundersons also argue that Indiana has excluded Lake Michigan from its public trust doctrine. * * *

This Court finds it beneficial to repeat that the Gundersons' deed conveyed the legal title, thejus privatum, to their lot within section 15 and that the State holds jus publicum title, in public trust, to the land below the OHWM. These titles convey different rights to their holders and these rights may, at times, overlap geographically. The public trust only protects some public rights, the scope of Indiana's Public Trust Doctrine is considered in the next section, but it is important to note that a private landowner cannot impair the protected rights of the public. See e.g., Ill. Cent. R.R., 146 U.S. at 452-53; Lake Sand, 120 N.E. at 716.

This Court notes that the OHWM has been the subject of both statutory and common law interpretation. Indiana has adopted an Administrative definition of OHWM for the shore of Lake Michigan, currently set at an elevation of five hundred eighty-one and five-tenths (581.5) feet. See 312 Ind. Admin. Code 1-1- 26(2). This regulation also provides a codification ofthe common law interpretation of the OHWM and defines the OHWM elsewhere as "[t]he line on the shore of a waterway established by the fluctuations of water and indicated by physical characteristics." 312 Ind. Admin. Code 1-1-26(1). The regulation continues by providing a few examples of the physical characteristics, such as a clear and natural line impressed on the bank; shelving; changes in the character of the soil; the destruction of terrestrial vegetation; or the presence of litter or debris. Id. This Court finds that defining the OHWM as a set elevation will, as Defendants argue, provide clearer notice to both the land owners and the pub1ic. Therefore, as to ownership, this Court finds that the Gundersons own legal title, jus privatum, in their lots to the northern boundary of Section 15. Further, this Court finds that the State holds jus publicum, in public trust, the land below the OHWM, as defined by 312 Ind. Admin. Code 1-1-26(2). Moreover, this Court finds that the Gundersons cannot unduly impair the protected rights and uses of the public when the titles to the land overlap.

Finally, this Court must determine the scope oflndiana's public trust doctrine. [ILB: With respect to Lske Michigan] * * *

This Court finds that Indiana did not surrender the public trust encumbering Lake Michigan's shores by partially codifying the public trust doctrine as it applied to the smaller freshwater lakes in Indiana. That the land below the OHWM has not been excluded from Indiana's common law public trust doctrine. Furthermore, this Court notes that Indiana has the least amount of shoreline on a Great Lake out the eight Great Lake States; a mere forty-five miles of shoreline along Lake Michigan. Moreover, this Court finds the idea that Indiana, with such a limited amount of shoreline, would restrict and in effect deny its citizens' access to such an amazing natural resource. Granting near exclusive rights to a vast portion of the shoreline to a select few homeowners, to be a far stretch of reason and common sense.

The Gundersons have provided no evidence and no persuasive argument for finding that the recreational activities, such as swimming and walking on the beach, should not also be permissible public uses protected by the public trust doctrine. This Court notes that several other states, include some of our sister Great-Lake States, have recognized the public trust's protection for recreational enjoyment of the beach. * * *

Conclusion. For the reasons more thoroughly explained above, this Court has found that upon its admission to statehood, Indiana received the bed of Lake Michigan, up to the OHWM regardless of whether it is momentarily not covered by water and holds this land in trust for its citizens to use for certain protected purposes. Indiana's public trust protects the public'S right to use the beach below the ordinary high water mark for commerce, navigation, fishing, recreation, and all other activities related thereto, including but not limited to boating, swimming, sunbathing, and other beach sport activities. Private landowners cannot impair the public's right to use the beach below the OHWM for these protected purposes. To hold otherwise would invite the creation of a beach landscape dotted with small, private, fenced and fortified compounds designed to deny the public from enjoying Indiana's limited access to one of the greatest natural resources in this State.

THEREFORE, IT IS ORDERED, ADJUDGED and DECREED that the Gundersons' Motion for Declaratory Summary Judgment is hereby, DENIED; and Defendants' Cross Motion for Summary Judgment, Alliance-Dunes' Combined Cross Motion for Summary Judgment, and LBCA's Cross-Motion for Summary Judgment are each GRANTED.

IT IS ADJUDGED and DECREED that the Gundersons' deed conveyed to them the legal title,jus privatum, to Lots 240, 242, and 244. The northern boundary of Lots 240, 242, and 244 is the same as the northern boundary of Section 15, from which the Lots were carved.

IT IS ADJUDGED and DECREED that the State holds the shores of Lake Michigan below the ordinary high water mark, as defined by 312 Indiana Administrative Code 1-1-26(2), in trust for the public, regardless of whether the land is currently covered by water.

IT IS ADJUDGED and DECREED that the scope ofIndiana's public trust doctrine includes and protects recreational activities, such as swimming, picnicking, sunbathing, or walking, and all other activities incident thereto, along the shores of Lake Michigan.

Posted by Marcia Oddi on July 28, 2015 02:45 PM
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Former attorney general Carter considers comeback"

Updating this ILB post from July 22nd, Niki Kelly of the Fort Wayne Journal Gazette posted a similar item yesterday in the FWJG's "Political Notebook." Some quotes:

Current Attorney General Greg Zoeller has decided to run for Congress in the 9th District. Logistically, if he would lose in the May primary he could possibly still meet the deadline to sign up to run for attorney general in the 2016 Republican nominating convention.

Carter recently sent an email to potential GOP supporters to gauge support, but said he doesn't have a timeline for making a decision.

Since he left office, he has been working privately. Much of that work has been for the Indiana Attorney General's Office -- via contracts to help with a case affecting payments Indiana gets from the tobacco master settlement.

According to the Indiana Auditor's Office, Carter was paid $146,600 in 2014, $107,078 in 2013 and $150,900 in 2012. Altogether in the last five years, he has earned more than $500,000 from the state. He has had no payments this year.

In comparison, Zoeller's current annual salary is $92,503.

The end of this long Oct. 31, 2013 ILB post discusses former AG Carter's role in the tobacco settlements.

From a search of ILB posts from 2008, this item from Oct. 8, 2008: "After two terms, current Attorney General Steve Carter is not running again. Carter's chief deputy attorney general, Greg Zoeller, is the Republican running to succeed him in the Nov. 4 election." A Star story from Oct. 20, 2008 describes Zoeller as "The man who served as chief deputy in the Indiana attorney general's office during Steve Carter's two terms...".

A Feb. 11, 2010 ILB post is headed "AG Zoeller hires former AG Carter to arbitrate tobacco deal for State."

Posted by Marcia Oddi on July 28, 2015 02:17 PM
Posted to Indiana Government

Ind. Law - "Indiana Police Pulled the Plug on Chief Keef’s Hologram. Can They Do That?"

From the NWI Times late on July 26th, a story by Sarah Reese - some quotes:

HAMMOND | A promoter for the hip-hop music festival in Hammond that was shut down after rapper Chief Keef appeared as a hologram late Saturday said he's sorry for how the event ended.

Malcolm Jones, co-CEO of Capital Connect * * * said he believed Hammond officials might have reacted differently if news of Chief Keef's appearance hadn't been leaked and Chicago officials hadn't "planted a seed in their mind" about the controversial gangster rapper who is wanted on a warrant in Cook County. Jones declined to comment on Chief Keef's legal problems.

Hammond Mayor Thomas McDermott said he never talked to Chicago officials about Chief Keef and Hammond's decision to shut down the event when the rapper appeared at The Pavilion at Wolf Lake was about public safety. * * *

The promoters were warned the event would be shut down if Chief Keef appeared, McDermott said. The promoters told city officials Chance the Rapper would be the surprise guest, he said.

Jones said about five minutes before the hologram appeared he was told that aspect of the show was out of his control.

"They dragged me over into a production room off the stage," he said. "Once they told me, that's when I wanted to go out onstage and at least tell someone what was going on."

Hammond police shut the show down within one minute.

Chief Keef, in his brief appearance from Beverly Hills, Calif., told concertgoers to stop the violence and let the children grow up. Chief Keef chose not to appear in person because of an outstanding warrant in Cook County for failure to pay child support, NBC Chicago reported.

From the Chicago Tribune on July 27th:
Craze Fest promoters can be upset with the city of Hammond all they want, but Mayor Thomas McDermott Jr. said they had the right to pull the plug on rapper Chief Keef's hologram performance Saturday night.

McDermott said Sunday the contract promoters signed with the city allows it to approve all acts who perform on Wolf Lake Pavilion stage. McDermott said the promoters told him and at least a dozen other city employees that Chance the Rapper would be the main event at the event Saturday.

An officer, however, found Chief Keef performing on a hip-hop website and realized it was going to be beamed to the pavilion, Hammond Police Cmdr. Pat Vicari said Saturday night. Officers again warned promoters it would be shut down.

"If it was Chance the Rapper like they told us, there would've been no problem at all, but I've heard (Chief Keef) promotes violence, and I don't want that for our city and our officers," McDermott said. "We warned (Craze Fest Promoter Devon Bonaparte) we would shut it down if they put Chief Keef on, and we did." * * *

Police rushed toward the stage, turning the music off. Shining flashlights, they ordered concertgoers to leave. Fans who gathered Saturday left the grounds in an orderly fashion.

Hologram USA CEO Alki David expressed anger that the concert was shut down so abruptly.

"Shame on the mayor and police chief of Hammond for shutting down a voice that can create positive change in a community in desperate need. And for taking away money that could have gone to help the victims' families," David said in a statement. "This was a legal event and there was no justification to shut it down besides your glaring disregard for the first amendment right to free speech.

"Mark my words if you censor us you only make us stronger," he said, threatening to sue.

But there is much more. The headline to this ILB post comes from the headline to this story by Whet Moser yesterday in Chicago Magazine. The subhead: "The city of Hammond shut down a music festival after he made a virtual appearance. It might be a First Amendment problem—unless a case can be made that Keef’s identity by itself causes violence."

It turns out this story already has been widely reported, the Chicago Magazine quotes stories from the NY Times and Eugene Volokh in the Washington Post. Plus several SCOTUS decisions.

Posted by Marcia Oddi on July 28, 2015 01:00 PM
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (1):

In First Federal Bank of the Midwest v. Karen S. Greenwalt and Farm Credit Services of Mid-America, a 14-page opinion, Judge Brown writes:

First Federal Bank of the Midwest (“First Federal”) appeals the trial court’s order entering partial summary judgment in favor of Karen Greenwalt (“Greenwalt”) and dismissing its complaint. First Federal raises two issues which we consolidate and restate as whether the trial court erred in granting summary judgment in favor of Greenwalt. We affirm. * * *

First Federal maintains that its security interest in Tract One under the Mortgage has not been discharged and specifically asserts that there was no material alteration of the underlying loan obligation. First Federal argues that the trial court erred when it determined that the extensions of additional credit to Great Lakes after the execution of the Note and Mortgage in 2000 constituted a material alteration of the underlying obligation resulting in the discharge of the Mortgage. First Federal further argues that, even if material alterations were made to the underlying obligation, the Mortgage was not discharged but capped at the level of the amount owed under the Note at the time of the material alteration. * * *

Based upon the record, we conclude that the alteration of the loan terms between Great Lakes and First Federal constituted material alterations of the underlying obligation and the loan agreement guaranteed by Greenwalt and that, as a result, Greenwalt as a surety and Tract One were discharged.

NFP civil decisions today (4):

In re the Marriage of: Thomas E. Thompson v. Donna B. Thompson (mem. dec.)

In re the Marriage of: Deborah D. Skelton v. Rodney D. Skelton (mem. dec.)

Performance Contracting, Inc. v. Randy Lowe (mem. dec.)

In Re the Adoption of D.B. and S.R., M.R. v. J.W. (mem. dec.)

NFP criminal decisions today (5):

J.B. v. State of Indiana (mem. dec.)

Adam Horton v. State of Indiana (mem. dec.)

Jevon Deandre Ollins v. State of Indiana (mem. dec.)

Aqueeli Hakeem Walton v. State of Indiana (mem. dec.)

Michael C. Pulley v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 28, 2015 11:07 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending July 24, 2015

Here is the Clerk's transfer list for the week ending Friday, July 24, 2015. It is two pages (and 23 cases) long.

No transfers were granted last week.

Notable transfer denials included Old National Bank v. Steven Kelly, Jon A. Cook, and Rebecca F. Cook, individually and on behalf of others similarly situated. The vote was 4-1 with CJ Rush voting to transfer. Mark Wilson of the Evansville Courier & Press reported on the denial late yesterday afternoon:

EVANSVILLE — The Indiana Supreme Court will not consider Old National Bank’s petition to hear arguments on whether a lawsuit against the Evansville-based bank can proceed as a class action.

The lawsuit accuses the Evansville-headquartered bank with purposefully posting debit card and ATM transactions so as to increase depositors’ overdraft fees. * * *

Last year, Circuit Court Judge David Kiely ruled that the lawsuit can move forward as a class action.

The Indiana Court of Appeals in April affirmed the ruling, a decision left standing by the Supreme Court’s denial of the bank’s petition to transfer the case - meaning that the court won’t consider it.

That means that the Oct. 27 trial date is back on again, said Scott Danks, one of the attorneys representing the customers. Both sides have agreed it would be a bench trial, with only a judge listening to the evidence and issuing a verdict.

“We are going to do our best to hold their feet to the fire. Old National has done everything they can to intentionally delay this. It’s been four and a half years since it was filed,” Danks said. “It doesn’t take a lawyer or judge to figure out that arranging transactions from high to low to maximize fees and penalties on customers without the customers knowledge is wrong.”

Posted by Marcia Oddi on July 28, 2015 09:05 AM
Posted to Indiana Transfer Lists

Monday, July 27, 2015

Ind. Decisions - 7th Circuit decides a second Indiana case today, re FDCPA

In Grant Bentrud v. Bowman, Heintz, Boscia & Vicia (SD Ind., Lawrence), a 13-page opinion, Judge Kanne writes:

Grant E. Bentrud owes Capital One Bank, N.A. (“Capital One”), money—$10,955.20 to be exact. He amassed that debt on his credit card, and he does not dispute it here. Bentrud’s dispute instead concerns the man-ner in which Capital One’s lawyers attempted to collect the debt. The way he sees it, Bowman, Heintz, Boscia & Vician, P.C. (“Bowman Heintz”), an Indiana law firm specializing in debt collection, committed multiple violations of the Fair Debt Collection Practices Act (“FDCPA”) during their collec-tion efforts.

To remedy those alleged violations, Bentrud commenced this action in the Southern District of Indiana. After a volley of motions between the parties, the district court granted summary judgment in favor of Bowman Heintz on each of Bentrud’s FDCPA claims. For the reasons expressed below, we affirm the judgment of the district court.

Posted by Marcia Oddi on July 27, 2015 04:50 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court enjoins a second non-lawyer from practicing law

In addition to this July 17th order against Brian K. Hill, the Court has now post a July 24th order, State ex rel. Indiana Supreme Court Disciplinary Commission v. Alberto Mejias:

... to Enjoin the Unauthorized Practice of Law against Respondent, Alberto Mejias. The Commission’s Verified Petition alleged, among other things, that Mejias, who, while employed as a legal assistant for an Indiana attorney but without his employer’s knowledge, handled client matters independently from his employer’s office and told his employer’s prospective clients that he was a lawyer. It further alleged that after leaving that employment, Mejias opened an office, began offering legal services under the name “Mejias & Mejias Legal Services,” and collected fees to perform legal services. Article 7, section 4 of the Indiana Constitution, Indiana Code section 33-24-1-2(b)(2), and Indiana Admission and Discipline Rule 24 give this Court original jurisdiction over this matter.

Posted by Marcia Oddi on July 27, 2015 04:33 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Deer Preserve Owners Hope Herd Mentality Leads To Voluntary Permitting"

From Purdue's NPR station, WBAA, this new story. Some quotes:

With Indiana's Supreme Court bringing an end to a 10-year legal battle over high-fence hunting preserves, the deer farming industry is stepping in to try to set standards for itself.

Deer and elk farmers have formed the Indiana Deer Advisory Council, to recommend standards for deer treatment and how they are hunted.

Advisory council chairman Gary Jacobson says he believes getting the group’s seal of approval will be valuable enough to preserve owners that they’ll follow whatever rules IDAC sets. * * *

The council has no enforcement authority, but will issue its own seal of approval to preserves which adhere to good practices, in hopes of steering consumers there. Jacobson says there need to be standards to ensure the state's 400 or so deer farms still have an end market for their herds.

The ILB's most recent prior post was the must-read July 1st: "This is a disaster! Supreme Court fenced hunting decision leads to DNR deregulating possession of many wild animals."

The ILB has also obtained a news release titled "Indiana Deer Advisory Council to Validate Hunting Preserves," that begins:

INDIANAPOLIS (July 24, 2015) – The Indiana Deer and Elk Farmers Association (IDEFA) has announced the launch of the Indiana Deer Advisory Council (IDAC). One of the main purposes of IDAC is to create and oversee a validation program for hunting preserves and deer farms in Indiana. Similar to the Pork Quality Assurance Plus program, IDAC is an industry-driven program to ensure deer health is maintained to the highest standards and to validate legal hunting preserves in Indiana that follow IDAC ethical guidelines. IDAC will issue annual hunting validations to owners that apply and prove IDAC program requirements have been fulfilled.

“An IDAC validated hunting preserve will maintain certain requirements for safety, ethics, fair chase, and record keeping,” said Gary Jacobson, Chair of the IDAC. “Hunting preserves have been unfairly vilified and this is our opportunity to display that we are more than willing to operate in a safe, legal and ethical manner.”

IDAC will include members from the Indiana Board of Animal Health along with deer farmers, hunting preserve owners, and business leaders.

A recent ruling by the Indiana Supreme Court established a major step in protecting small business owners across the state involved in the deer industry. On Friday, June 8, 2015, a deadlocked Indiana Supreme Court declined to hear the state’s appeal of a ruling allowing hunting preserves to operate in the state. The result reaffirmed the Indiana Court of Appeals ruling this past February which held that the Department of Natural Resources (DNR) overreached its constitutional authority and state law does not prohibit high-fence hunting nor does it allow DNR to regulate the practice.

Posted by Marcia Oddi on July 27, 2015 04:18 PM
Posted to Indiana Government

Ind. Gov't. -New filing in the General Assembly denial of public records lawsuit

The most recent ILB post in this lawsuit was June 30th, quoting a FWJG story. An earlier post that day gives a comprehensive background to the suit, Citizens Action Coalition of Indiana et al. v. Eric Koch and Indiana House Republican Caucus.

Today the plaintiffs have filed their 22-page response to the defendants' motion to dismiss.

Posted by Marcia Oddi on July 27, 2015 04:00 PM
Posted to GA and APRA

Ind. Decisions - "Lake Michigan lakefront homeowners do not own the beach" [Updated]

Jessica O'Brien reports today in a long story in the Michigan City News Dispatch:

MICHIGAN CITY — Judge Richard Stalbrink issued an order Friday ruling against lakefront homeowners in Long Beach, saying these property owners do not own exclusive rights to the beach lying north of their deeded land.

This lawsuit was filed by plaintiffs Long Beach Lakefront Homeowners Association, Don Gunderson and Margaret West, who argue the northern boundary of private lakefront properties is the water's edge of Lake Michigan.

Their argument was based partially on the fact that their deed gives no northerly dimension to their plat — contending that their property must run to the water's edge.

However, defendants in the case — including the State of Indiana, Department of Natural Resources, Long Beach Community Alliance, Save the Dunes, Alliance for the Great Lakes and several individuals — argue that the state owns the lakebed up to the ordinary high water mark (OHWM) as determined by the Army Corps of Engineers, which is currently 581.5 feet above sea level.

The OHWM is intended to distinguish between public and private lands.

This issue was brought before Stalbrink in La Porte County Superior Court No. 2 earlier this year on an appeal after La Porte County Circuit Court Judge Tom Alevizos first ruled against the lakefront homeowners.

In his decision, Alevizos cited court case United States v. Carstens, which said, "According to the Indiana 'public trust doctrine,' the beach area between the ordinary high water mark (OHWM) and the edge of the water of Lake Michigan is public land and not owned by any person, entity or municipality."

Also citing this case among many others, Stalbrink ruled similar to Alevizos. Stalbrink's ruling says that the state of Indiana owns the land below the OHWM, regardless if that land is covered by water at any given moment.

This ruling also determines the northern property line of the Gundersons' deed. Court documents released Monday determine the northern boundary of the Gundersons' lots 240, 242 and 244 to be the same as section 15, from which the lots were carved.

According to the story, the opinion also discusses Indiana's limited shoreline, and "the equal footing doctrine and public trust doctrine."

For background, start with this ILB post from March 30, 2015.

[Updated 7/28/15]
Here is the 22-page opinion.

Posted by Marcia Oddi on July 27, 2015 01:54 PM
Posted to Ind. Trial Ct. Decisions

Law - "Limit on Damages Is Squeezing Victims of Amtrak Wreck"

This July 24, 2015 story by Ron Nixon of the NY Times on the liability caps Congress put on Amtrak accidents is interesting. A few quotes:

But even though Amtrak has announced that it will not contest lawsuits filed against the company for the accident, Ms. Varnum and Mr. MacFarland fear they will have to come up with tens of thousands of dollars for medical bills out of their own pockets.

The couple hope their lawsuit will highlight the fact that the congressionally mandated cap on liability for Amtrak accidents can leave victims with enormous bills. In addition, they will try to find out why the railroad did not have technology, called positive train control, that federal regulators said could have prevented the accident.

“We need to hold Amtrak accountable,” Mr. MacFarland said. “This accident could have easily been prevented.”

In the reauthorization of Amtrak in 1997, Congress capped the liability against the company at $200 million for any single train accident. The provision, which does not account for inflation, was aimed at keeping railroad companies in operation when hit with major lawsuits.

“When Congress enacted the cap, it made the judgment that victims of large-scale railroad crashes will be among those who have to bear the cost of keeping Amtrak up and running,” said John C. P. Goldberg, a law professor at Harvard and expert on tort law. “It is very difficult to see why, in effect, some of the subsidy should come from the victims of train crashes rather than the public.”

In rulings in previous rail accidents, judges have struggled with how to properly compensate victims. In a 2008 commuter train accident in California that left 24 people dead and 109 injured, Judge Peter D. Lichtman, now retired, said an additional $64 million beyond the liability cap was needed to properly compensate victims.

But he was unable to get more because of the federal limit on damages. The judge awarded the payouts based on the severity of the injury, from $12,000 for those with no visible wounds to $9 million for a Zambian exchange student who suffered brain damage. In a scathing 33-page decision in 2011, a frustrated Judge Lichtman wrote: “Impossible decisions had to be made. What was given to one victim had to be taken from another.”

A provision in a bill to finance the Highway Trust Fund now being considered by Congress would raise the cap to $295 million and index it every five years for inflation. The bill would also apply the revised limit to the May 12 accident. Still, experts said the bill fell short of what was needed to fully compensate victims of large-scale rail accidents.

“That’s not nearly enough for medical and other expenses given the scope of the potential damages in the May 12 Amtrak crash,” said Ben Somberg, a spokesman for the American Association for Justice, a trade group of trial lawyers.

Amtrak declined to comment on the proposal to raise its liability limit.

Posted by Marcia Oddi on July 27, 2015 01:06 PM
Posted to General Law Related

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

In James Tsareff v. Manweb Services (SD Ind., Barker), a 16-page opinion, Judge Bauer writes:

Plaintiff-appellant, Indiana Electrical Pension Benefit Plan (“Plan”), through its trustee, James Tsareff, brings this action to collect withdrawal liability from defendant-appellee, ManWeb Services, Inc. (“ManWeb”), under the Employee Retirement Income Security Act (“ERISA”), as amended by the Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA”), 29 U.S.C. §§ 1001–1461. The Plan argues that ManWeb is responsible for the withdrawal liability incurred by Tiernan & Hoover, certain assets of which ManWeb acquired through an asset sale, under a theory of successor liability. The Plan appeals the district court’s grant of judgment as a matter of law to ManWeb and denial of the Plan’s motion for summary judgment. For the reasons that follow, we reverse. * * *

For the aforementioned reasons, the district court’s grant of judgment as a matter of law to ManWeb and denial of summary judgment to the Plan is reversed. Since the district court did not address the successor liability continuity requirement, this case is remanded to the district court for further proceedings consistent with this opinion.

Posted by Marcia Oddi on July 27, 2015 11:09 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (0):

NFP civil decisions today (2):

In the Matter of the Termination of the Parent-Child Relationship of B.G. & F.G. (Children), and, F.G., Sr. v. The Indiana Department of Child Services (mem. dec.)

Leo Kahn v. Fletcher Horn d/b/a Hartwood Architectural Antiques and Perry Glancy (mem. dec.)

NFP criminal decisions today (7):

Anthony W. Taylor-El v. State of Indiana (mem. dec.)

Kenneth Powers v. State of Indiana (mem. dec.)

Ahkeem Shakur Scott-Manna v. State of Indiana (mem. dec.)

Ricky B. Akins v. State of Indiana (mem. dec.)

Jimmy Scott Huntington v. State of Indiana (mem. dec.)

Larry D. Blanton, Jr. v. State of Indiana (mem. dec.)

Bonnie Motsch v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 27, 2015 11:04 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "9 years after Bloomington Council OK'd urban chickens, inspections routine"

The ILB has followed the "urban chicken" movement in Indiana for years - here is a list of some of the posts.

Last week, Megan Banta of the $$ Bloomington Herald-Times took stock of how chickens within the Bloomington city limits are working out. Some quotes from a long story with many photos:

"Girls!" Trisha Gooch cries out as she rounds the corner of the house with animal control officer Jim Pritchard.

Not to her daughters, or dogs or cats, but to her three chickens.

Gooch has one of the city's 49 active urban chicken permits, and Pritchard is there conducting an inspection to renew the Smith Road resident's permit.

It's a process that's become fairly standard since the Bloomington City Council first passed an ordinance allowing chickens within city limits in 2006, following much discussion and the appearance of a city councilman in a chicken suit. Since then, there have only been a few changes to the ordinance: the removal of both a $25 fee and a previous requirement that people get approval from neighbors, and the addition of permission to slaughter one's urban chickens.

City code allows people to get a permit to have up to five hens, but no roosters, in residential estate, residential single family and residential core zoning districts, as long as they're in an enclosed structure for protection. In another vein of protection for the birds, the city Animal Control Commission has to review any applications from people who have been convicted of cruelty to animals.

People applying for permits or who need to renew their permits get a letter detailing what they need to do. Those requirements also are summed up in a checklist that Pritchard takes to every inspection.

You can find more about the Bloomington chicken story here, with a map and video.

The NWI Times reported on June 29th that the Griffith Town Council had passed an urban chicken ordinance; it appears to be somewhat more stringent than the current Bloomington requirements.

Posted by Marcia Oddi on July 27, 2015 10:23 AM
Posted to Indiana Government

Ind. Gov't. - "Pence’s environmental petulance hurts Indiana" and "Pence noncommittal on gay anti-discrimination law"

Matthew Tully's July 24th IndyStar column is subheaded: "Gov. Mike Pence might be scoring political points with his opposition to new federal environmental proposals. But he is not helping Indiana, and he is ignoring some longterm realities." A few quotes:

It would be a lot easier to take Gov. Mike Pence’s opposition to just about every new environmental policy seriously if he didn’t so gleefully and diligently use it to try to score political points.

“We’re not going to do it,” he wrote in a recent email to “conservative” campaign supporters, one in a long series of publicity-seeking steps he’s taken to show just how much he opposes the Obama administration’s attempts to reduce air and water pollution.

We’re not going to do it? That sounds less like a grand gubernatorial statement and more like teenage petulance. Particularly when it’s not backed up by any counter-proposals or any serious concern about the state’s deeply entrenched environmental problems.

The tone was the same at a press conference Pence recently participated in — with an energy industry group, of course — in which he said, according to my colleague Maureen Groppe, “We do have a choice. You can refuse to submit a state plan.”

What a choice. Just do nothing. Sure, in a state that ranks near the bottom on all sorts of health and environmental measures, let’s just do nothing. Don’t even offer a plan that attempts to reduce emissions. Don’t get into a battle of ideas. Just say no. Hey, maybe all of that pollution will just blow over to Illinois. * * *

I understand that Pence isn’t going to be an environmental champion. But his words and actions suggest that on these issues he is living in a policy bubble free of diverse voices. That’s hurt him in other areas, and it’s not serving Indiana well on this one.

Yesterday in the NWI Times Dan Carden had a news story with a similar theme on a different topic. It begins:
Gov. Mike Pence is hinting that he believes Indiana's recent economic growth may eliminate the need for a new state law banning discrimination based on sexual orientation and gender identity.

Speaking to reporters last week following a bill-signing ceremony, the Republican seemed to suggest Indiana has suffered no long-term ill effects from the March-April "religious freedom" debacle that temporarily made Indiana synonymous with gay hate and prompted boycotts of state businesses and tourism sites.

As a result, further attempts to placate critics of Indiana's policies might not be necessary, he implied.

"I think our economy speaks for itself. Our economy is strong and growing stronger, and that's a testament to the resilience of the people of Indiana and to the great reputation our state enjoys," Pence said.

"We're going to move forward on the policies that are making that a reality, and we'll leave debates about the future for the future." * * *

When asked whether he views the need for an anti-discrimination law solely through an economic lens, the governor boasted that since he took office in 2013 more than 110,000 new jobs have been created, and Hoosier businesses this year already have promised to invest $3 billion in the state.

"I really do believe that we found a way through that difficult period last spring to calm the waters, and the facts speak for themselves: Indiana's economy is strong and growing stronger," Pence said.

"Hoosiers may be assured that I'm going to continue to advance the policies and the practices that are building on Indiana's story and telling Indiana's story."

Posted by Marcia Oddi on July 27, 2015 10:10 AM
Posted to Environment | Indiana Government

Ind. Gov't. - New state law funding local jails requires counties to apply

Mike Grant of the Washington Times Herald reported this weekend (here via Indiana Economic Digest):

The state of Indiana is working out the details on a new law that will provide funding for jails and community corrections operations throughout the state and Daviess County Sheriff Jerry Harbstreit will be among those helping establish the guidelines for grants that will come from the new law.

During its last session the General Assembly passed House Bill 1006 that was also called the Criminal Justice Funding Law. The measure will offer millions of dollars to throughout the state for jails and community corrections programs to provide drug addiction and mental health programs for offenders.

"One thing the state did differently this time is they are requiring the counties to make applications for the money," said Harbstreit. "They are not sending money to each county and telling them to spend it wisely. They are requiring the counties to tell specifically what they are going to do."

The bill was supported by the Indiana Sheriffs' Association. Now, as President of the ISA, Harbstreit will be part of a key advisory committee that will work with the Indiana Department of Correction and the Indiana Division of Mental Health and addiction in establishing guidelines for grants and helping to determine what programs get funded.

"We are going to try and set it up right," said Harbstreit. "It should set things up so that the money gets used in the most productive way."

Many counties like Daviess are already operating drug addiction programs within their jail and community corrections operations. In Daviess County, it is called the RARE Program. That program was originally established under a grant, but when the funding ended the county continued to operate it with some local funding and a lot of volunteers.

"About one quarter of our general jail population is involved in the RARE Program," said Harbstreit. "We also have a lot of people taking part who are on home detention and in the work release program. This is all about getting these people to make good decisions and not wind up back in jail when they get out."

In Knox County, there is an interdiction program in the jail called Life After Meth, Harbstreit says Grant County in northern Indiana has a similar program.

"A lot of agencies like us are excited about this," said Harbstreit. "This could be the answer to our prayers. We may be able to get the money to the programs where it needs to be. We could hire more professionals to give these people what they really need."

Posted by Marcia Oddi on July 27, 2015 09:57 AM
Posted to Indiana Government

Ind. Gov't. - "Deregulation of engineers draws fire"

That is the heading of Niki Kelly's comprehensive story this weekend in the Fort Wayne Journal Gazette on Indiana's moves to deregulate many professions. Some quotes from the long story:

Engineers, home inspectors, hearing aid dealers and auctioneers should no longer be licensed or regulated by the state, according to a committee reviewing the dozens of occupations the state oversees.

The Jobs Creation Committee has issued preliminary findings on 11 occupations but more public hearings are expected. And the Indiana General Assembly would have to vote to eliminate the licensing in the next session.

The engineering recommendation is getting the most attention so far.

“A century ago, anyone could work as an engineer without proof of competency. Now every state regulates the practice of engineering to ensure public safety by granting only (professional engineers) the authority to sign and seal engineering plans and offer their services to the public,” said Scott S. Haraburda, president of the Indiana Society of Professional Engineers.

“If the recommendations are implemented, Indiana will be the only state that fails to license and regulate its engineers, a dangerous risk that Hoosiers cannot afford to take.”

The legislature in recent years has sought to examine the possible deregulation of several occupations overseen by the Indiana Professional Licensing Agency.

Next comes some valuable history:
This is the third iteration of the committee, though the title and the members have changed several times.

First it was the Indiana Regulated Occupations Evaluation Committee in 2011, which recommended the elimination of several licenses. But in 2012 a swarm of cosmetologists and barbers blocked the move.

Then the legislature changed the committee to ERASER, which meant Eliminate, Reduce, and Streamline Employee Regulation Committee.

In 2014, the name of the committee was changed again to the Jobs Creation Committee but its task was the same – a five-year review of dozens of occupations and their licensing requirements.

Nicholas Goodwin, spokesman for the Indiana Professional Licensing Agency, said the newest committee released its first annual report this month.

The agency is an umbrella for 38 boards, commissions and committees, and regulates more than 70 professional licenses. In all, the agency regulates about 470,000 actively licensed professionals, meaning almost one in seven working Hoosiers are licensed by the agency. In looking at all of the agencies that regulate professions, 1 in 4 Hoosiers must be licensed to go to work every day.

Rep. Dave Wolkins, R-Warsaw, served on the original committee and remembers how hard it was to deregulate an occupation.

“It is an important discussion to have,” he said. “There are studies that show licensing is an impediment to jobs. They keep people out. But due to the pressure from the groups it’s very difficult to get anything done.”

He took heat from the cosmetologists and barbers for being involved in that effort. Wolkins said in general people in a profession feel it should remain licensed to protect their turf as well as the money and time they spent getting the license.

He doesn’t know specifically about the engineer recommendation but questioned why engineers would be deregulated but not architects.

“If you have an engineering degree why should the state be deciding if you are a competent engineer? I could understand and maybe even buy in but that will be hard to get through,” he said.

The story looks closely at the engineering deregulation issue, and then concludes:
The committee also voted to eliminate licensing for home inspectors, hearing aid dealers and auctioneers.

Here is what the minutes said on each of those items:

Home inspectors – “a consumer rarely chooses who their home inspector is or the company they work for as their real estate broker working on behalf of the consumer typically chooses the individual. Private sector and marketplace economic principles will weed out bad actors, and the government’s involvement in licensing these individuals is unnecessary.”

Hearing aid dealers - “Consumers seeking hearing aids are already under the care of a physician and licensing this practice was redundant. Only two hearing aid dealer licenses have been revoked since 2008 in Indiana so the JCC feels that the threat of consumer harm is minimal.”

Auctioneers – “The JCC felt this profession would be a good candidate for the self-certification registry.”

The ILB has a number of historical entries on the deregulation efforts. Here is a post from the first go-around, in 2012, headed "Ind. Law - "Hairdressers may have killed bill that would eliminate licensing," and a follow-up from the next day.

Then in 2013 the ILB had a number of posts on the new "ERASER" committee (Eliminate, Reduce, and Streamline Employee Regulation Committee), which replaced the "Regulated Occupations Evaluation Committee" (ROEC).

Posted by Marcia Oddi on July 27, 2015 09:28 AM
Posted to Indiana Government

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

From Sunday, July 26, 2015:

From Saturday, July 25, 2015:
  • Nothing
From late Friday, July 24, 2015:

Posted by Marcia Oddi on July 27, 2015 09:17 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 7/27/15):

  • No arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 8/3/15):

  • No arguments currently scheduled.

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/27/15):

Monday, July 27

  • 1:30 PM - Lanni v. National Collegiate Athletic Association (49A02-1409-CT-649) Lydia Lanni appeals the trial court's entry of summary judgment for the National Collegiate Athletic Association (NCAA) and the United States Fencing Association, Inc. (USFA). According to her complaint, in March of 2010 Lanni suffered a severe eye injury after she was struck by a fencing sabre at a fencing competition on the campus of the University of Notre Dame in South Bend. Lanni alleges that her injury resulted from negligence on the parts of the NCAA, the USFA, and Notre Dame. Lanni raises three issues for our review, namely: (1) whether the trial court erred when it denied her motion for a change of judge following remand from this court in a prior appeal; (2) whether the trial court erred when it entered summary judgment for the NCAA and against Lanni; and (3) whether the trial court erred when it entered summary judgment for the USFA and against Lanni. The Scheduled Panel Members are: Judges Baker, Najam and Friedlander.. [Where: Court of Appeals Courtroom (WEBCAST)]

  • 3:00 PM - McDivitt v. McDivitt (79A02-1501-DR-29) Wesley and Sue McDivitt entered into a prenuptial agreement before they were married in 1999. The agreement provided that Wesley's retirement benefits were to remain his sole property. In 2000, Wesley elected to withdraw early retirement benefits in the form of a joint and survivor annuity. Sue was named as a beneficiary and would therefore continue to receive payments in the event of Wesley's death. The monthly annuity payments came in checks made payable to Wesley. When the couple divorced in 2014, Sue argued that she was entitled to half of the annuity payments because her interest became vested once the couple started receiving the payments. Wesley argued that the terms of the prenuptial agreement controlled and that he did not intend to waive any terms by electing to receive his annuity payments under a joint and survivor plan. The trial court agreed with Sue, holding "[b]y selecting a joint and survivor policy, the Husband transferred ownership of the proceeds of the policy to the Wife jointly for life, and to the Wife exclusively after Husband's death." The trial court held that Sue is entitled to half of the payments and ordered the couple "to take such action as is necessary to cause payments to be made in equal portions." The Scheduled Panel Members are: Judges Baker, Najam and Friedlander. [Where: Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 8/3/15):

  • No oral 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 July 27, 2015 09:09 AM
Posted to Upcoming Oral Arguments

Sunday, July 26, 2015

Ind. Gov't. - Reporter's "Reflections after 20 years under the Statehouse dome"

As reported in Indiana Legislative Insight July 13th:

Lesley Weidenbener, who as the executive editor of The StatehouseFile.com for Franklin College built what is effectively a statewide print news network, will join the Indianapolis Business Journal as managing editor.
Today Lesley had a long, "summing-up" column in the Louisville Courier-Journal. Here are some quotes:
Twenty years ago when I arrived at the Indiana Statehouse to begin covering the General Assembly, the beat was among the most respected in the newsroom.

Covering the legislature meant you were doing something that mattered – writing stories about taxes, highways, education and social issues, stories that helped people make decisions about their lives and at the polls. Editors and the public saw it that way too.

But over the decades – as I moved from covering state government for The Journal Gazette in Fort Wayne to The Courier-Journal in Louisville to TheStatehouseFile.com where I’ve been the editor – the position has diminished in stature inside and outside the media industry.

The public’s increasing distaste and skepticism for government and politics, a changing news business that focuses on the sensational, and elected officials who’ve been slow to eliminate perks their constituents loathe have contributed to the overall decline in the respect for even the reporters who cover the beat. * * *

Twenty years ago when I arrived at the Indiana Statehouse to begin covering the General Assembly, the beat was among the most respected in the newsroom.

Covering the legislature meant you were doing something that mattered – writing stories about taxes, highways, education and social issues, stories that helped people make decisions about their lives and at the polls. Editors and the public saw it that way too.

But over the decades – as I moved from covering state government for The Journal Gazette in Fort Wayne to The Courier-Journal in Louisville to TheStatehouseFile.com where I’ve been the editor – the position has diminished in stature inside and outside the media industry.

The public’s increasing distaste and skepticism for government and politics, a changing news business that focuses on the sensational, and elected officials who’ve been slow to eliminate perks their constituents loathe have contributed to the overall decline in the respect for even the reporters who cover the beat.

Lesley then goes on to talk about legislators, money, voter, and how most legislation is created by consensus, so that "few pieces of legislation make any one person truly happy." This really is a column you should read in full.

Re the importance of voter input, Lesley writes:

Few things are as influential with a lawmaker as contact from a constituent. Letters, emails, calls and visits mean more to most legislators than money. They represent votes and votes mean reelection.

The problem is that we voters just don’t pay attention to the vast majority of issues.

Lawmakers will get hundreds of contacts when they’re debating issues like annexation, guns, and gay rights. And they pay attention. In fact, sometimes a small group of voters can have out-sized influence because they’re so squeaky.

But in the absence of constituent input, lawmakers are left to their own deductions – and the influence that comes from special interests. Bills about esoteric changes in insurance law or utility regulation don’t generate the voter input are the ones most likely influence by big money.

ILB: The result for the public can be the "legislative surprises" that turn up months after each session has concluded. Sometimes, as with this report July 16th by another long-time statehouse reporter, even the lawmakers are taken by surprise.

Posted by Marcia Oddi on July 26, 2015 06:58 PM
Posted to Indiana Government