Friday, January 20, 2017
Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 4 NFP memorandum decision(s))
For publication opinions today (3):
In Kevin T. Williams v. Unifund CCR, LLC, a 10-page opinion, Judge Riley writes:
Appellant-Defendant, Kevin T. Williams (Williams), appeals the trial court’s judgment in favor of Appellee-Plaintiff, Unifund CCR, LLC (Unifund), on Unifund’s Complaint against Williams for nonpayment of credit card debt. We reverse. * * *In Christopher Johnston v. State of Indiana, a 10-page opinion, Judge May writes:
[Issue] Whether the evidence admitted at trial supports Unifund’s claim. * * *
Based on the totality of the evidence before us, Unifund failed to satisfactorily establish that it owns Williams’ account and is entitled to collect the debt associated with it.
Based on the foregoing, we hold that the trial court abused its discretion by entering judgment in favor of Unifund. Reversed.
Christopher Johnston appeals the qualification of State’s expert called to discuss forensic analysis of social media records and digital trails, and the admission of that expert’s opinion regarding the statistical probability of multiple Facebook accounts belonging to people other than Johnston. We affirm. * * *In Wiley W. Walters, Jr. v. State of Indiana, a 12-page opinion, Judge May writes:
The trial court did not abuse its discretion in qualifying Sergeant Schafer as an expert, and Johnston has not demonstrated fundamental error in the admission of Sergeant Schafer’s Polar Bear Analogy. Accordingly, we affirm Johnston’s convictions.
Wiley W. Walters, Jr. appeals his convictions for two counts of Level 1 felony child molest and two counts Level 4 felony child molest. Walters raises two issues, which we restate as:NFP civil decisions today (0):
1. Whether the court abused its discretion in allowing hearsay testimony pursuant to the exception for statements made for medical diagnosis or treatment, and
2. Whether his fifty-year sentence was inappropriate.
NFP criminal decisions today (4):
Thursday, January 19, 2017
Ind. Decisions - "Supreme Court justices doubt 'indisputable' video of South Bend man's arrest"
This morning the Supreme Court heard oral argument in the case of Royce Love v. State of Indiana. By a vote of 2-1, a Court of Appeals panel had concluded that video evidence indisputably contradicted police officer testimony about the events underlying the convictions. The South Bend Tribune covered the case, reporting the objections of the police and prosecutor.
This afternoon, Christian Sheckler of the South Bend Tribune reports in a long story, with the dash-cam video, that begins:
Supreme Court justices Thursday rejected the notion that a South Bend police dash-cam video "indisputably" contradicted officers' testimony about a 2013 arrest, as the lower Indiana Court of Appeals ruled earlier this year.Here is today's oral argument.
The Supreme Court justices raised their doubts during oral arguments in the case of Royce Love, a South Bend man who was convicted of two counts of resisting law enforcement and one count of mistreating a police animal before the appellate court reversed two of convictions in September.
The state attorney general's office asked the Supreme Court to review the appellate court's decision, which state lawyers described as an overreach.
In the appeals court's decision, a majority of a three-judge panel found that officers used unreasonable force by deploying a Taser and dog on Love even though he appeared to surrender and get on the ground after a car chase.
Several police officers said Love resisted and refused to surrender, but the appellate court majority said the dash-cam video indisputably showed the officers' statements were inaccurate.
The Supreme Court is considering two questions: Whether the video evidence was indisputable and, if so, to what extent that evidence allows the appellate courts to intrude on a jury's right to weigh and judge the evidence at trial.
On Thursday, several Supreme Court justices expressed doubt on both questions.
"What I saw was grainy, vague, dark — I couldn't discern what was going on," Justice Robert Rucker said as he pressed Love's attorney, Jeff Kimmell, on his position. "Couldn't a jury also decide whether or not it's indisputable and weigh that in favor of what the officers said?"
Kimmell responded that the visible portions of the video provided ample evidence that Love was on the ground before he was stunned and attacked by the dog. * * *
There is no timetable for the Supreme Court's decision.
Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 3 NFP memorandum decision(s))
For publication opinions today (3):
In Dermatology Associates, P.C. and Sonya Campbell Johnson, M.D. v. Elizabeth C. White v. Commissioner of Indiana Department of Insurance, and Douglas J. Hill, Esq., Medical Review Panel Chair, a 21-page, 2-1 opinion, Judge Robb writes:
On September 7, 2012, Elizabeth White visited Dr. Sonya Campbell Johnson at Dermatology Associates, P.C. (collectively, the “Providers”), for laser hair removal on her face. Due to a reaction between the makeup White was wearing and the treatment, part of White’s face was burned and remained discolored thereafter. In 2013, White filed a complaint for medical negligence against the Providers directly with the trial court, seeking damages in an amount not greater than $15,000 for her injury. Later, White moved to dismiss that complaint. The trial court granted the motion to dismiss without prejudice, and on November 18, 2014, White filed a proposed complaint with the Indiana Department of Insurance. The Providers filed a petition for preliminary determination and a motion for summary judgment alleging White failed to timely file her claim with the Department of Insurance. The trial court denied the motion for summary judgment but certified its order for interlocutory appeal. The Providers raise one restated issue for our review: whether the trial court erred in denying their motion for summary judgment. Concluding the statute of limitations bars White’s action and the Providers are entitled to judgment as a matter of law, we reverse. * * *In George S. Fischer v. Jennifer M. Fischer , a 16-page opinion, Judge Robb writes:
The facts of this case are not in dispute. The Providers have shown that White did not file her proposed complaint with the Department of Insurance within two years of her action accruing. White in turn has failed to establish she is entitled to the benefit of Indiana Code sections 34-18-8-6(c) and 34-18-7-1(c) extending the statute of limitations in certain circumstances. Section 34-18-8- 6(c) imposes certain requirements on the ability to benefit from the extended time to file a medical negligence action, and White has failed to meet those requirements. White had every right to dismiss and refile her cause of action in order to seek additional damages, but under these facts, she needed to do so within the two-year statute of limitations.
Conclusion. The Providers are entitled to judgment as a matter of law on their motion for summary judgment alleging White’s proposed complaint was filed with the Department of Insurance outside the applicable statute of limitations. The trial court’s denial of the motion is reversed.
Brown, J., concurs. Mathias, J., dissents. [with an opinion that begins, on p. 18] I respectfully dissent. The majority’s explanation of the statutory framework of the issue before us is commendable. I disagree only with the majority’s interpretation of this statutory framework. * * *
The majority concludes that White failed to allege that she learned anything new or different about her injury after filing her original complaint. However, she averred that the discoloration still remained. Thus, because the discoloration had still not improved, White came to the personal conclusion that a lifetime of facial disfiguration was worth more than $15,000. In terms of the statute, White “learned” that her claim, based upon her permanent facial disfiguration, was worth more than $15,000. Under the facts and circumstances before us, I think a woman’s ultimate decision that a lifetime of facial disfiguration was worth more than $15,000 is something she could, and here did, “learn” from looking into the mirror every day, trying without success to use make-up to make the scarring less noticeable. I believe this alone is sufficient to trigger the 180-day extension provided for by Indiana Code section 34-18-7-1(c).
Accordingly, I would affirm the trial court’s denial of the Provider’s motion for summary judgment.
Jennifer Fischer filed for dissolution of her marriage to George Fischer on October 30, 2014. The trial court held a final hearing on August 27, 2015, and issued an order dissolving the marriage on November 23, 2015. George appeals the dissolution decree, raising two issues for our review, which we consolidate and restate as one: whether the trial court abused its discretion in dividing the value of certain stock options as part of the marital estate. Concluding the value of the stock options at issue are not properly included in the marital estate, we reverse and remand. * * *In Daniel Ray Holloway v. State of Indiana, a 14-page opinion, Judge Pyle writes:
Because the stock options at issue vested after the date of the parties’ final separation, they should not have been included in the marital estate as an asset subject to division. Accordingly, we reverse the trial court’s order in this respect and remand for further proceedings consistent with this opinion.
Daniel Ray Holloway (“Holloway”) appeals his convictions, received following a jury trial, for Class B felony dealing in methamphetamine, Class D felony maintaining a common nuisance, and Class D felony possession of chemical reagents or precursors. At trial, the trial court admitted, over Holloway’s objection, evidence of items used in methamphetamine manufacturing that investigators had discovered during a warrantless search of Holloway’s car. On appeal, Holloway argues that the trial court abused its discretion in admitting this evidence because the search that produced it violated his right to privacy under the United States and Indiana Constitutions. We conclude that the trial court did not abuse its discretion because the exigent circumstances exception to the prohibition against warrantless searches under the United States Constitution applied, and the search was reasonable under the Indiana Constitution. We affirm.NFP civil decisions today (1):
NFP criminal decisions today (2):
Courts - "SCOTUS Justices Appear Willing to Protect Offensive Trademarks"
Adam Liptak reports today in the NY Times on yesterday's SCOTUS oral argument in Lee vs. Tam. The story begins:
WASHINGTON — The Supreme Court on Wednesday appeared deeply skeptical about the constitutionality of a federal law that denies protection to disparaging trademarks. Almost every member of the court indicated that the law was hard to reconcile with the First Amendment.Robert Barne's story in the Washington Post takes a similar tack, the headline is "Can disparaging trademarks be denied? The Supreme Court is skeptical."
The court’s decision in the case, concerning an Asian-American dance-rock band called the Slants, will probably also effectively resolve a separate one in favor of the Washington Redskins football team.
"Asian American band the Slants takes its trademark battle to the Supreme Court: Is it free speech or a racial slur?" is rthe headline to David G. Savage's story in the LA Times.
Ind. Gov't. - AG Hill joins lawsuit against Office of Surface Mining Reclamation and Enforcement
According to a press release (h/t EagleCountyNews), Attorney General Curtis Hill:
... today announced Indiana’s participation with 11 other states in a lawsuit against the U.S. Office of Surface Mining. The lawsuit alleges that regulations set in place by that office’s new Stream Protection Rule violate the Surface Mining Control and Reclamation Act, and thereby represent serious policy overreach by the federal government.Here is a copy of the 52-page complaint, filed 1-17-17 in the U.S. District Court for the District of Columbia. Twelve states are signatories.
Ind. Law - "Limiting Damages Through Evidence of Medical Write-Downs"
Here is an interesting article in The National Law Review, authored by Kara Kapke of Barnes & Thornburg that begins:
What a medical provider lists as the charge for a particular service often bears no relationship to the actual amount paid by the patient or his insurer. Both private and government insurers negotiate with the medical providers to pay less than the “listed charge” for services, resulting in medical “write-downs” of expenses. Can a tort victim recover the listed charge as damages, or should the plaintiff be limited to recovering only those amounts actually paid? Both courts and state legislatures have taken up the issue.
Indiana is a leading state in suggesting that a plaintiff may be limited to recovering only those amounts actually paid, as court decisions have allowed evidence of medical write-downs. In October 2016 in Patchett v. Lee, the Indiana Supreme Court re-affirmed its decision in Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009), concluding that reduced reimbursements are admissible evidence, even when a government provider negotiates or mandates the discount. In his first majority opinion for the court, Indiana Supreme Court Justice Geoffrey Slaughter provided a history of case law involving medical write-downs in the decision, noting that Delaware, Texas, California and Kansas allow evidence of the discounted amount paid to prove reasonable value of medical services.
Ind. Decisions - "SBT Opinion: Appeals court ruling holds Pence to open records law"
That is the heading to an editorial this week in the South Bend Tribune:
Last week’s ruling from the Indiana Court of Appeals was, at first glance, a win for former Gov. Mike Pence.ILB: For background, start with this Jan. 12th post headed "More on COA opinion in Groth v. State."
The court ruled that Pence’s staff appropriately withheld and redacted several documents in a public records dispute in a case brought by an Indianapolis attorney who sued the Pence administration after it denied his request for a document related to efforts of Republican governors to stop President Barack Obama’s immigration executive order.
But the court didn’t buy the governor’s larger argument that his responses to requests under the state’s Access to Public Records Act are exempt from judicial review.
In short, that’s good news for advocates of transparency, who had reason to fear that a victory for Pence on this critical question could set a dangerous precedent — one basically allowing other governors to refuse to disclose public documents with no government oversight.
The argument used by Pence lawyers mirrors one successfully used in a case involving the release of lawmaker email communications with lobbying groups and businesses. In that case, the state Supreme Court ruled that although Indiana legislators are subject to the state’s public access law, ordering the release of lawmaker email communications with lobbying groups and businesses violates the state constitution’s separation of powers between the legislative and judicial branches of government.
Fortunately, the court didn’t buy Pence lawyers’ claim that “Just as the judiciary should not ‘intermeddle’ with the legislature’s determination of what constitutes its own work product, the judiciary should not ‘intermeddle’ with the executive’s determination of what constitutes its own work product, deliberative material, or privileged material.”
According to the court, this argument “would, in effect, render APRA meaningless” as applied to the governor and his staff. “APRA does not provide for any such absolute privilege, and the separation of powers doctrine does not require it. We reject the Governor’s assertion that his ‘own determinations’ regarding whether to disclose public records are not subject to judicial review.”
The decision is a critical one for transparency in a case that the former governor, a self-described advocate of open government, never should have made in the first place.
Ind. Courts - More on Justice Rucker's retirement
"Rucker to retire from Indiana Supreme Court" was the heading to Dan Carden's story yesterday in the NWI Times.
"Indiana's sole minority Supreme Court Justice to retire this year" reads the headline to Fatima Hussein's story this morning in the Indianapolis Star.
Ind. Courts - 2017-2018 Marion Superior Court Executive Committee Elected
From the press release yesterday:
On January 17 2017, the General Term of the Marion Superior Court elected its new Executive Committee for the 2017-2018 Term. Judge Timothy Oakes was elected to serve as the Presiding Judge. Judge Sheila Carlisle, Judge Christina Klineman and Judge Heather Welch will join him on the Executive Committee as Associate Presiding Judges.
About the Marion Superior Executive Committee
The Executive Committee is comprised of four judges: one Presiding Judge and three Associate Presiding Judges, who are responsible for the operation and conduct of the Court.
About Judge Timothy Oakes
Judges Oakes has served the Marion Superior Court since 2009. He currently presides over Civil Court 2. Prior to his time on the bench, Oakes served as a Deputy Prosecutor, private practitioner and legislative lobbyist. Oakes has served the Court as a Legislative Liaison, Commissioner/Magistrate Taskforce, IT Committee, Ethics Committee, Court Reporter Committee, Building and Facilities Committee, and Library Committee. Oakes currently serves on the Committee on Character and Fitness for the State Board of Law Examiners. In addition to his service to the Courts, Oakes has served in leadership roles with the Indianapolis Bar Association, the Indiana Judges Association, and the Inns of the Court as well as adjunct professor roles with McKinney Law School and IUPU-SPEA.
About Judge Sheila Carlisle
Judge Carlisle has served the Marion Superior Court since 2001. She currently presides over Criminal Court 3. Prior to her time on the bench, Carlisle served as a Deputy Prosecutor, Chief Deputy Prosecutor and Chief Trial Deputy in Johnson and Marion counties. She has previously served the Court as the Criminal Term Chair, member of the Commissioner/Magistrate Taskforce, Court Reporter Committee, Ethics Committee and Criminal Local Rules Committee. She has served at the state level on the Judicial Conference Board of Directors, Jury Committee and Criminal Instructions Committee. Carlisle currently serves on the Character and Fitness Committee for the State Board of Law Examiners, the Criminal Law Policy Committee, and the Board of Managers for the Indiana Judges Association. Carlisle was appointed in 2016 to the Mayor’s Task Force on Criminal Justice Reform.
About Judge Christina Klineman
Judge Klineman joined the Court in 2015. She currently presides over Criminal Court 17. Klineman previously served as a commissioner for the Court in the criminal and civil divisions from 2009-2014. She has served the Court as the Arrestee Processing Center Advisory Judge and a member of the Commissioner/Magistrate Taskforce. She currently serves on the Judicial Administration Committee for the Indiana Supreme Court and is a member of the Mayor’s Criminal Justice Reform Taskforce. She has previously held leadership roles at the Indianapolis Bar Association.
About Judge Heather Welch
Judge Welch joined the Court in 2007. She currently presides over Civil Court 1 and one of the six Indiana Commercial Court Pilot Project Courts. Welch previously served as a commissioner for the Court from 2001-2006. She has previously served the Court as the Civil Term Chair, Budget Committee Chair, member of the Ethics Committee and Legislative Liaison. She is also member of the Mayor’s Criminal Justice Reform Taskforce.
Ind. Courts - Justice Rucker announces spring 2017 retirement; applications available, due March 3
The Supreme Court announces this morning:
Indiana Supreme Court Justice Robert D. Rucker will step down from the bench in the spring of 2017 after 26 years on the bench. He is Indiana's 105th Supreme Court justice. Rucker said, "It has been an honor to serve Hoosiers for a quarter century." Justice Rucker will be available for media interviews today (January 19) at the State House in the Law Library (room 316) at 11:15 a.m. EST. * * *ILB: See this ILB post from yesterday ...
The exact date Justice Rucker will step down from the bench in spring 2017 is not yet known. The Judicial Nominating Commission will search for a successor to fill the vacancy; applications for the position are available on the Court's website at courts.in.gov/jud-qual/3306.htm and are due March 3, 2017.
Ind. Gov't. - Former IDEM head to lead Missouri's Department of Natural Resources [Updated]
The Daily Progress today carries an AP story by Katie Kull that begins:
JEFFERSON CITY, Mo. (AP) — Gov. Eric Greitens has chosen the commissioner of Indiana's Department of Environmental Management to lead Missouri's Department of Natural Resources.[Updated at 1:00 pm] Here is a more detailed story, from Celeste Bott of the St. Louis Post-Dispatch. It includes a video announcement. From the story:
Carol Comer will be the newest addition to Greitens' Cabinet. She worked under Indiana Gov. Mike Pence, who will be sworn in as vice president Friday.
A video posted Wednesday to Greitens' Facebook and Twitter accounts showed the governor standing by Comer in front of the Missouri River. Comer touted her success in partnering Indiana's environmental department with economic organizations to promote business and investment.
"I'm looking forward to doing the same thing here in Missouri so that we can protect the air and the land and the water quality, but still encourage economic growth," she said on the video.
Comer, who stood beside Greitens for the announcement, said in Indiana, the Department of Economic Development partnered with the Department of Environmental Management to create jobs and attract businesses and investment.
"I'm looking forward to during the same thing in Missouri, so that we can protect the air and the land and the water quality, but still encourage economic growth, so that everybody prospers," she said. * * *
Comer was rumored to have been on President-elect Donald Trump's shortlist to lead the Environmental Protection Agency, before Greitens' announcement on Wednesday. Pence, her former boss, campaigned for Greitens during his gubernatorial bid.
Wednesday, January 18, 2017
Ind. Gov't. - Attorney General Hill Announces Staff Appointments
From the news release:
Leading Hill’s executive staff is Aaron Negangard, who has been appointed Deputy Chief, serving as second in command. Negangard was the Dearborn-Ohio County Prosecutor since 2006 before joining Hill’s staff.
Joan Blackwell will serve as Hill’s Chief of Staff. Blackwell served as section chief in the Office of the Attorney General from 2014 to 2016, and most recently worked as an attorney at the law firm of Barnes and Thrornburg. Rounding out Hill’s executive staff is Kelly Craven, who will work as Hill’s Senior Advisor during his first term. Craven was a Deputy Assistant Secretary of the Air Force in the George W. Bush Administration, and served as the Chief of Staff for Indiana congressman Steve Buyer, before most recently serving as the Director of House Operations for Speaker Paul Ryan.
Hill’s communications staff will be led by Jeremy Brilliant, an award-winning journalist who spent more than 10 years as a TV reporter in Indianapolis, most recently working for the city’s NBC affiliate. Brilliant was hired this week as the Director of Communications, and will handle media relations, as well as public outreach for the Hill administration.
A strong group of employees throughout the Office of the Attorney General will work with these key posts, forming an extremely talented staff that will help Hill serve with bold, courageous leadership. Several of the office’s most invaluable positions have been filled. Mary Allen will fill the role as Director of Strategic Planning and Resources. Allen is the former director of the Indiana Criminal Justice Institute where she led the state’s criminal justice policy and planning agency.
Former Marion County Prosecutor Scott Newman joins Hill’s staff as Chief Counsel in the Advisory Division, while Denise Robinson will work as the Senior Deputy Attorney General. Robinson most recently served at the Marion County Prosecutor’s Office. Patricia McMath left her role as Appellate Public Defender at the Marion County Public Defender Agency to join Hill’s staff as the Section Chief of Civil Appeals.
Ind. Courts - Expect announcement soon that applications are available for upcoming Supreme Court vacancy
Based from the past process, look for the announcement any day now.
Timing on most recent vacancy, occasioned by the retirement of Justice Dickson:
- Announcemnt made Nov. 9, 2015: "Justice Brent E. Dickson will step down from the bench in the spring of 2016"
- Announcement that "Applications for an upcoming vacancy on the state’s highest court are available online" came Nov. 12, 2015. Due January 25, 2016.
- "Interviews for new justice to begin Wed., Feb. 17th" - Jan. 18, 2016
Ind. Courts - Justice Rucker's retirement date likely will be sometime in March
Chief Justice Loretta Rush, in the annual State of Judiciary address this afternoon, announced that Justice Robert D. Rucker would participate in his final oral argument March 9th, in Gary, Indiana.
Ind. Decisions - Still more on: Federal Judge Barker decides GEFT challenge to Indianapolis digital sign prohibition
Despite a new court settlement that allows billboard company GEFT Outdoor LLC to operate two digital billboards in Indianapolis, the ruling doesn’t appear to open the floodgates to others hoping for the same outcome.
City officials say GEFT had a unique case that wouldn’t apply to the several other billboard companies that have been hoping to get past the city’s ban on digital billboards.
"The court’s order turns on state-law claims reviewing specific variance denials and has no effect beyond the specific signs at issue,” said Donald Morgan, the city’s chief litigation counsel. * * *
Digital billboards are still banned. “They sued under the old ordinance,” said Republican Council member Jeff Miller. “This does not invalidate our ordinance. No one else can sue and [get a digital] billboard for the same reasons. That was a big relief to me.”
Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 7 NFP memorandum decision(s))
For publication opinions today (3):
In The Estate of Gary Pfafman v. Lori Lancaster, Individually, and as Guardian of the Estate of Kole Craig, a 34-page opinion (with a concurring opinion), Judge Najam writes:
The Estate of Gary Pfafman (“Pfafman’s Estate”) appeals the trial court’s grant of a new trial following a jury verdict in favor of the Estate on a complaint filed by Lori Lancaster, Individually and as Guardian of the Estate of Kole Craig (“Craig’s Estate”). Pfafman’s Estate presents two issues for our review, one of which is dispositive, namely, whether the trial court complied with the requirements of Indiana Trial Rule 59(J) when it ordered a new trial on the grounds that the verdict was against the weight of the evidence and that the evidence was insufficient to support the jury’s verdict. We reverse. * * *In Elberta N. Jackson v. State of Indiana , a 13-page opinion, Judge Riley writes:
In sum, despite its length,17 the trial court’s order omits any meaningful analysis of the evidence, including testimony by Craig’s Estate’s own expert witnesses, that Diehm and Farm Innovators proximately caused Craig’s injuries. While the trial court’s findings include a list of some of that evidence regarding the nonparties’ negligence, the court did not explain in its conclusions why that evidence would not support a jury’s allocation of fault to one or both of the nonparties with none to Pfafman’s Estate. We hold that the trial court’s findings and conclusions are not based on a complete analysis of the law and facts, see T.R. 59(J), and the court did not make “a clear showing that the ends of justice required” a new trial. Walker, 943 N.E.2d at 352. When a court grants a new trial without making sufficiently specific findings, the remedy on appeal is to reinstate the jury verdict. Id. at 353. Because the trial court’s findings are insufficient here, we reinstate the jury’s verdict.
Conclusion. The trial court’s findings and conclusions in granting Craig’s Estate’s motion for a new trial are insufficient under Trial Rule 59(J). The trial court did not relate the evidence of the nonparties’ negligence to the issue of comparative fault under the Act, but erroneously concluded that Pfafman’s conduct was the sole cause of Craig’s injuries. And the trial court did not address the possibility that the jury allocated 100% fault to Diehm and/or Farm Innovators despite the lack of an intervening cause. Given the evidence that there were several but-for causes of Craig’s injuries attributable to the nonparties, the jury was entitled to allocate 100% fault to one or both of the nonparties and 0% to Pfafman. Accordingly, we reverse the trial court’s order and reinstate the jury’s verdict in favor of Pfafman’s Estate. Reversed.
Baker, J., concurs.
Vaidik, C.J., concurs in result with separate opinion. [that begins at p. 29] The trial court erred in finding as a matter of law that Pfafman proximately caused Craig’s injuries. Therefore, I concur in the result and would reinstate the jury’s verdict. But, I respectfully disagree with the majority that a jury is allowed to find an actor proximately caused an injury, yet decline to allocate a percentage of fault to that actor.
Jackson raises two issues on appeal, which we restate as follows:In Jeremiah Edward Ericksen v. State of Indiana , a 12-page opinion, Judge Riley writes:
(1) Whether the State presented sufficient evidence to support Jackson’s conviction for operating a vehicle with an ACE to at least 0.15 beyond a reasonable doubt; and
(2) Whether Jackson’s due process rights were violated by the imposition of a two-year administrative driver’s license suspension. * * *
Based on the foregoing, we conclude that there is sufficient evidence to support Jackson’s conviction for operating a vehicle with an ACE to at least 0.15, and we further conclude that Jackson’s due process rights were not violated.
On November 11, 2015, officers conducting surveillance on Ericksen witnessed him putting a black bag, a “possible gun case type thing,” inside the trunk of a black Jaguar, which was registered to Marilyn Ericksen (Marilyn). * * *NFP civil decisions today (3):
To convict Ericksen of carrying a handgun without a license as a Level 5 felony, the State was required to establish beyond a reasonable doubt that Ericksen did knowingly or intentionally carry a handgun in or upon his vehicle or person without a license in his possession after he had already been previously convicted for carrying a handgun without a license. * * *
Focusing on the “carry” element of the offense, Ericksen argues that “there is no evidence that [Ericksen] ‘carried’ the handgun.” (Appellant’s Br. p. 13). In essence, Ericksen claims that because the statute requires a person to be carrying, rather than possessing a handgun, constructive possession is not an appropriate analysis to find a defendant guilty of carrying a handgun without a license. * * *
Based on the foregoing, we hold that the State presented sufficient evidence beyond a reasonable doubt to support Ericksen’s conviction for carrying a handgun without a license; and the trial court tendered a proper jury instruction on the charge of carrying a handgun without a license.
NFP criminal decisions today (4):
Ind. Decisions - More on "Ind. Decisions - Supreme Court issued disciplinary opinion re Keith Henderson"
Floyd County Prosecutor Keith Henderson has received a public reprimand from the Indiana Supreme Court for his "misconduct" while prosecuting the David Camm triple-murder trial, court documents show.The story concludes:
The decision, filed last week, says Henderson's misconduct "adversely affected the administration of justice" in the Camm case. But with his "distinguished career as a public servant" and his actions being limited to one case, the court strayed from suspending him from practicing law, court documents show. Henderson has served as Floyd County prosecutor since 2003.
Henderson declined to comment on the court's findings.
The decision issued by the Supreme Court said Henderson violated professional rules of conduct because his duties to the state conflicted with his personal interests. The court did not find evidence that Henderson misled Floyd County officials when he asked for reimbursement of his attorney fees used to litigate the complaint, leading officials to believe the fees were tied to the case instead for defending himself personally against potential disciplinary charges.
After the disciplinary commission suggested Henderson be suspended, he lost the race for Floyd County Circuit Court Judge against longtime incumbent J. Terrance Cody in November's election.
Henderson dismissed his ethics complaint in an interview before last year's election with the Courier-Journal and said he pitched writing the book because he thought the community needed to know about the "biggest case in county history."
Ind. Gov't. - More on "Carmel cracks down on homeowners listing their property on Airbnb"
Updating this ILB post from earlier today, Niki Kelly of the Fort Wayne Journal Gazette reports today on yesterday's hearing on HB 1133, in a story headed "Bill would allow short-term rentals: Property owners use online sites to lease rooms, homes." Some quotes:
INDIANAPOLIS – Cities and towns in the state wouldn’t be allowed to ban short-term rentals found on websites like Airbnb under a bill heard by state lawmakers Tuesday.
Rep. Matt Lehman, R-Berne, said he is trying to find the balance between protecting home rule and the rights of Hoosiers to use their property as they see fit.
“This is an attempt to thread that needle,” he said. “We want to allow this emerging technology to continue.”
Lehman said House Bill 1133 doesn’t strip local control from local governments, though those who testified on the bill said it’s a basic preemption bill. * * *
Fort Wayne has 56 rentals currently available on Airbnb.
A number of cities in other states have banned short-term leasing while some have added inspection and permit fees. Indianapolis has taken a permissive approach but recently Bloomington considered an ordinance cracking down on short-term rentals.
Lawmakers suggested several times during the meeting that this is about allowing people to rent their homes for the Super Bowl or the Final Four, but a Carmel couple told of a different side of the technology.
Shannon and David Minac said owners three doors down from them specifically bought the house to use year-round as online rental lodging. The homeowners don’t live there and people are continuously coming and going.
They expressed concern about there not being background checks and sex offenders being able to rent.
Committee Chair Kevin Mahan, R-Hartford City, said hotels don’t do background checks either.
The Minacs expressed concern that they are running a business in a residential neighborhood setting and said the city of Carmel is issuing cease-and-desist letters this week to some homeowners.
Ind. Courts - State of the Judiciary address today at 2 pm
Indiana Chief Justice Loretta H. Rush will address the Governor and a joint session of the Indiana General Assembly for the annual State of the Judiciary. Learn more here.
You may watch the address live.
Environment - "Trump’s nominee to head EPA has opposed the Chesapeake Bay cleanup"
And so has Indiana. In fact, Indiana did not merely sign on to the amicus brief, Indiana was one of three co-authors of the brief.
From Darryl Fears story today in the Washington Post:
Oklahoma is 1,400 miles from the entrance of the Chesapeake Bay at Havre de Grace, Md., halfway across the country. But the distance didn’t matter to Oklahoma’s attorney general, Scott Pruitt, after the Environmental Protection Agency drew up a plan to clean the polluted bay. He tried to stop it.The story links to a Feb. 5, 2014 WAPO story by the same reporter, headed "From Alaska to Florida, attorneys general join fight to end Chesapeake Bay cleanup." Snippets:
Pruitt was one of 21 state attorneys general who signed an amicus brief opposing the largest cleanup of a water body in U.S. history. The brief supported a federal lawsuit filed by the American Farm Bureau Federation and the Pennsylvania Farm Bureau that claimed the EPA usurped the power of states in the watershed to regulate pollution that flows into the bay from cities and farms.
Pruitt is now President-elect Donald Trump’s nominee to run the EPA, the agency that Pruitt has railed against, suing it more than a half-dozen times over regulations on clean water and clean air that he disagreed with.
State attorneys general, most of them Republicans, from as far as Alaska and Montana joined the American Farm Bureau Federation in its fight to prevent the Environmental Protection Agency from carrying out its plan to clean up the nation’s largest estuary. Impaired waters have led to fish-killing dead zones and other marine life die-offs for decades. * * *In fact, as the ILB wrote on Feb. 26, 2014: "AG Zoeller co-author[ed] amicus brief challenging Chesapeake Bay cleanup." A quote:
The 21 states were described as geographically varied, but they were solid in their opposition to President Obama in the 2012 election, with the president taking only Michigan and Florida.
The other states are Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.
Although Attorney General Zoeller is concerned about Asian Carp in the Wabash, he is challenging a plan crafted by US EPA and the Chesapeake Bay watershed states to save the Bay.
Zoeller, on behalf of the State of Indiana, joined the states of Missouri and Kansas as authors of an amicus brief supporting the plaintiffs in a case in the Third Circuit: American Farm Bureau Federation, et al v. US EPA (13-4079).
Ind. Gov't. - "Legislative leaders have vowed to straighten out regulation of production of vaping liquids in the state"
Updating this list of ILB posts on vaping liquid laws, the Fort Wayne Journal Gazette has a long editorial today headed "A smoking mess:Untangling of vaping liquid laws overdue." A sample:
Goodcat LLC of Naples, Florida, one of the vaping companies left out in the cold, challenged the constitutionality of the arrangement and won a preliminary injunction in U.S. District Court. Also last year, two legislators told the Indianapolis Business Journal that they had been questioned about the bill by the FBI. Whether the bureau is still investigating is not known.
There was other worrisome fallout from the vaping-law situation. One of the legislators who voted for the law, Rep. Alan Morrison, R-Terre Haute, took a job last September with Mulhaupt’s. Morrison told the business journal his vote had nothing to do with his getting the job. And Bedford Republican Brent Steele, who backed the measure before retiring from the Senate at the end of last year, began a new job this month as executive director of the Vapor Association of Indiana, a group that represents the six companies that have been approved to produce vaping liquids. The association will be lobbying to keep the present law, and Senate rules preclude Steele from registering as a lobbyist until a year after he leaves the Senate. But Steele told the Indianapolis Star everything will be on the up-and-up – he’s going to hire another firm to do the lobbying.
Maybe it’s because of those dubious ethical situations, or the interest of the courts, or the possible interest of federal investigators. Or it could be just a latently triggered sense of good old-fashioned Hoosier fairness. But there appears to be general agreement that something has to be done.
Ind. Gov't. - "Carmel cracks down on homeowners listing their property on Airbnb"
Last session, the Indiana General Assembly banned local governments from restricting single-use plastic bags. Here is a long list of posts, highlights include:
- "'State to locals: You can't do that. Or that.' The illusion of home rule" - IndyStar, March 7, 2016
- "'Home rule and plastic bags' - blowing in the wind ..." Bloomington Herald-Times, Feb. 4, 2016
Connecting the dots, last evening, Katie Cox of WRTV6 reported in a story headed "Carmel cracks down on homeowners listing their property on Airbnb." Some quotes:
CARMEL, Ind. -- The City of Carmel has a message for homeowners who have been listing their homes for rent on the popular travel website Airbnb: No more.
The city's Division of Building and Code Services has been sending letters to residents who have their homes listed on the site, telling them that they are in violation of the city's zoning laws. Homeowners have 10 days to remove their home from listings or file for a zoning variance.
City officials said they've received complaints from residents, homeowners associations and local hotels about the number of homes listed on the travel site.
Airbnb, which allows users to list their homes for rent or search for homes to rent in areas all over the world, currently has over 300 rentals listed in and around Carmel, Indiana.
Tuesday, January 17, 2017
Environment - More on "EPA Causes Massive Spill of Mining Waste Water in Colorado, Turns Animas River Bright Orange"
Here is the Aug. 7, 2015 story in Newsweek - don't miss the photo.
Today Reuters has a story by Keith Coffman headed "EPA denies $1 billion-plus in claims from toxic Colorado mine spill." The story begins:
The U.S. Environmental Protection Agency on Friday denied $1.2 billion in claims for economic losses stemming from a 2015 toxic wastewater spill accidentally triggered by the agency at a defunct Colorado mine, that fouled waterways in three states.
The EPA said in a statement that it was "not legally able to pay" damage claims over the discharge from the century-old Gold King Mine, located near the town of Silverton in southwestern Colorado.
Farmers, ranchers and river-running raft companies, among others, filed the claims seeking compensation for lost business or wages from the spill.
The agency said federal law grants immunity to government agencies if something goes awry from "discretionary" action taken by its employees.
"Therefore, the circumstances surrounding the Gold King Mine incident unfortunately do not meet the conditions necessary to pay claims," the statement said.
In August 2015, an EPA contractor hired to slow seepage of pollutants from the mine breached a tunnel wall, unleashing a torrent of wastewater that had built up behind the mountainside.
The discharge sent some 3 million gallons of orange-colored water containing 900,000 pounds of heavy metals, including arsenic, cadmium, lead and mercury, cascading into a creek that feeds the Animas River.
The plume of contamination then poured downstream into the San Juan River in New Mexico and across Native American lands before reaching Lake Powell in Utah days later.
The EPA decision, which the agency said can be appealed to the federal court system within six months, drew angry responses from elected officials in the affected states.
Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 6 NFP memorandum decision(s))
For publication opinions today (3):
In In Re: the Grandparent Visitation of G.S., J.S. v. M.S. , a 6-page opinion, Judge Baker writes:
J.S. (Mother) appeals the portion of the trial court’s order mandating that G.S. (Child) be permitted to have contact with other paternal relatives when participating in grandparent visitation with M.S. (Grandmother). Mother argues that there is no statutory authority for a trial court to order a child to have visitation with anyone other than a grandparent in the face of a parent’s objections. We agree, and reverse in part. * * *In Edward Taylor v. State of Indiana, a 9-page opinion, Judge Robb writes:
In reaching this result, we intend to express no opinion about the character of Child’s paternal relatives, or even whether being permitted to maintain contact with them would be in her best interests. Indeed, we encourage Mother to reconsider her position; considering all that Child has lost in her short life, it seems wise to permit her to maintain contact with anyone and everyone who loves and supports her. But while we encourage her to do so, we—and the trial court—are without authority to order her to do so. As such, we reverse the portions of the trial court’s order relating to all individuals other than Grandmother.
Police encountered Edward Taylor passed out behind the wheel of his running car. Suspecting he was intoxicated, they sought a search warrant for a blood draw. Because of statutory time constraints on conducting a chemical test, a photograph of the signed search warrant was sent by email to an officer’s cell phone. Taylor objected to the blood draw because the officer was unable to show him a physical copy of the search warrant and struggled with the officer before finally complying. After Taylor was charged with battery, resisting law enforcement, driving while suspended, and operating a vehicle while intoxicated, he filed a motion to suppress the blood draw evidence. The trial court denied the motion but certified its order for this interlocutory appeal in which Taylor raises the sole issue of whether the trial court erred in denying his motion to suppress. Concluding the trial court did not err in denying the motion to suppress because the blood draw was conducted pursuant to a valid search warrant, we affirm. * * *In S.S. v. State of Indiana , a 6-page opinion, Judge May writes:
Taylor’s only objection is that Sergeant Brahaum did not have a physical piece of paper to show him when he asked to see it; he does not claim that the affidavit and search warrant were not properly retained. A photograph or PDF of a search warrant transmitted via email is as valid and effective as a paper copy. See Smith v. State, 311 P.3d 132, 140 (Wyo. 2013) (noting that while state constitutional requirements for a written affidavit showing probable cause for issuance of a warrant remain the same, “[w]hat has changed over time, because of technological advances, is the meaning of the word ‘written.’ Recorded sworn testimony, which if preserved, and from which a transcript may be produced, is as much a ‘writing’ in today’s world as was a quill-penned line on a piece of parchment two centuries ago. To conclude otherwise would ignore today’s technological realities, and would place form over substance.”). That Sergeant Brahaum had only an electronic copy of the search warrant at the time of the blood draw did not violate Taylor’s rights because the search warrant was otherwise valid.
The trial court did not err in denying Taylor’s motion to suppress evidence because the evidence was obtained via a valid search warrant despite the fact the officer had in hand only an electronic copy at the time of the search. The trial court’s order is therefore affirmed.
S.S. appeals the trial court’s order requiring him to pay restitution. S.S. presents two issues for our review, one of which we find dispositive - whether the juvenile court abused its discretion when it ordered him to pay restitution after it determined he did not have the ability to pay restitution. We reverse. * * *NFP civil decisions today (3):
Here, S.S. made a record regarding his ability to pay wherein he testified he was fifteen years old, did not have a job, did not have a bank account or savings, and lived with his mother. The juvenile court stated in its dispositional order, “[S.S.’s counsel] requests that the youth be found indigent as he does not have [t]he ability to pay restitution. Court notes same. Court authorizes the release of youth’s documents to the victim for civil litigation.” (App. at 15.) As the juvenile court noted S.S. was not able to pay restitution, and S.S. presented evidence of his indigency, the juvenile court abused its discretion in ordering him to pay restitution. See Bell v. State, 59 N.E.3d 959, 966 (Ind. 2016) (vacating trial court’s restitution order because Bell presented “sufficient and unrebutted testimony” of her inability to pay). * * *
As an aside, we note the juvenile court’s comment during the dispositional hearing regarding mother’s responsibility for the payment of S.S.’s restitution. * * * (parents are not liable for payment of child’s restitution obligation).
NFP criminal decisions today (3):
Ind. Decisions - Transfer list for week ending Jan. 13, 2017 [see note]
Here is the Clerk's transfer list for the week ending Friday, Jan. 13, 2017. It is two pages (and 26 cases) long.
No transfers were granted last week.
There were two cases last week where transfer was denied by a 3-2 vote:
- Jeffrey L. McMahel v. Mary A. Deaton - this is a Sept. 14, 2016 NFP [sic.] COA opinion. Transfer Denied - All
Justices concur, except
Rush, C.J., and Slaughter,
J., who vote to grant the
petition to transfer. The case concerns an award of property after co-habitation. [Note: A reader points out that in addition to "mem. status" being wrong, the names of the Deaton judges on the transfer list are incorrect.]
- Larry Ray Beedy, Jr. v. State of Indiana - this was an Aug. 22, 2016, 2-1 COA opinion. Transfer denied - All Justices concur, except Rush, C.J., and Massa, J., who vote to grant the petition to transfer Involves the propriety of a “Romeo and Juliet” defense in this case.
Ind. Law - "Could Indiana pass forfeiture reform this year?"
Could Indiana pass forfeiture reform this year? Ohio did earlier this month - see this Jan. 5th ILB post headed "Ohio Gov. Kasich signs bill limiting use of civil forfeiture."
Today Fatima Hussein of the Indianapolis Star reports:
At least eight Republican state lawmakers and a Democrat are making a concerted effort to upend the way citizens' personal property is seized by the government.But civil asset forfeiture has long been a topic, both nationally and in Indiana. See, for example, this long Feb. 22, 2015 ILB post that begins:
If they succeed, Indiana will join the ranks of a growing number of states that have reined in the widely used law enforcement practice of confiscating cars, money and other personal assets of criminal suspects, some of which may not be the fruits of a crime.
State lawmakers have submitted eight bills this legislative session dedicated to reforming the state's controversial civil forfeiture law, which is used to raise millions of dollars each year for local law enforcement agencies around the state.
Law enforcement officials consider civil forfeiture an important tool in fighting illegal drugs, but critics say it leads to "policing for profits" and abuses of private property rights.
Some of the bills would allow for the seizure of property only after a criminal is convicted of a crime. Other bills would restrict the way proceeds from civil forfeitures could be used. One calls for a study on the best practices for reforming forfeiture laws, and another calls for a change in the way criminal organizations' property is seized.
"I don’t know why no one has done this here before," said state Sen. Phil Boots, R-Crawfordsville, co-sponsor on one of the bills.
Although much has been reported nationally (the Washington Post has made it a major focus) and in the ILB on the topic of civil asset forfeiture (here is a long, long list of ILB posts), and the issue was raised briefly in Indianapolis a few years back (in 2011 Heather Gillers had stories in the Star on the question of why these forfeitures were not going to the Common School Fund, as mandated in the Indiana Constitution), the practice and alleged abuses have continued.Nationally, there is the memorable "Last Week Tonight with John Oliver" video from Oct. 5, 2014 that does a great job of explaining civil asset forfeiture.
Reporter Hussein's long story details some of this year's Indiana proposals:
This year Boots and fellow Republican Michael Young proposed Senate Bill 8, which would repeal a current provision permitting the state to turn over seized property to the federal government.The long story today concludes:
While the proposal would be effective this July, the extent of any state revenue reduction is unknown, according to the bill's fiscal impact statement.
Specifically, the bill requires that at least $15,000 in cash be involved before a civil asset-forfeiture process may be triggered, and it requires in most cases that a criminal conviction first be obtained or at least a criminal charge filed.
Sen. Lonnie Randolph, D-East Chicago, proposed Senate Bill 26, which would require authorities to notify property owners of the government's intent to seize property. Randolph's bill also requires a prosecuting attorney "to show by clear and convincing evidence that the owner of the property was convicted of and entered a plea of guilty or no contest to the offense that gave rise to the forfeiture," according to the text of the law.
Senate Bill 113, submitted by Sen. Dennis Kruse, R-Auburn, also would require a criminal conviction, would establish a procedure for criminal forfeiture and require that certain information concerning forfeitures be annually reported to the legislative council.
And Senate Bill 41, authored by Sen. Ronald Grooms, R-Jeffersonville, addresses the use of forfeiture proceeds in a rather complicated mathematical equation.
The bill provides that, in a forfeiture proceeding, one-third of the proceeds be given to the prosecuting attorney, "unless the prosecuting attorney has declined a request from the state police department to transfer the forfeiture to federal jurisdiction, in which case 20 percent of the proceeds but not more than $5,000 may be transferred to the prosecuting attorney."
The bill also provides that "of the remaining proceeds, 15 percent shall be provided to the common school fund and 85 percent shall be distributed to an account for distribution to law enforcement agencies participating in the seizure as necessary law enforcement expenses."
A bill that addresses Curry's request for a study committee was introduced on New Years Eve by state Rep. Timothy Wesco, R-Osceola.
Wesco's House Bill 1123 assigns a study committee on the topic of civil forfeiture laws. "One of the greatest obstacles is the revenue local communities receive from forfeiture proceeds, and there's concern about how to replace that revenue," he said. The purpose of the study would be to determine where to find replacement funds.
"My desire is for greater reform, but I take a pragmatic approach."
The study committee, which could cost upwards of $16,000 according to its fiscal impact statement, would be required to issue a final report with recommendations to the legislature no later than November this year.
Jeff Cardella, an Indianapolis criminal law attorney and professor at Indiana University's Robert H. McKinney School of Law, asks whether it's worth taking a summer to think it over.
Cardella recently filed a class-action lawsuit in federal court against Marion County's prosecutor, Indianapolis' mayor and the chief of police for civil forfeiture practices that he says violate criminal defendants' constitutional right to due process.
"I am glad that the Indiana legislature agrees that what is occurring is a constitutional violation and is drafting legislation to prevent this from occurring in the future," Cardella said.
Part of the impetus for the legislation may be a growing number of challenges to the statutes.The ILB has been following "civil forfeiture" since 2004. Here is a long list of posts.
Suits in Marion County have challenged both the manner in which property is seized and how the proceeds are spent.
Sam Gedge, an attorney at the Institute for Justice, a libertarian nonprofit based in Arlington, Va., filed a lawsuit last February in Marion Superior Court charging IMPD and prosecutors with violating the Indiana Constitution by not forwarding all civil forfeiture proceeds to the state’s common school fund.
Instead, the county is keeping 100 percent of the money in a “policing for profit” scheme, the institute said.
The Marion County prosecutor’s office and IMPD divvy up all the money received from civil forfeitures based on a 30/70 split, according to the lawsuit.
Whatever the cause, more legislators are pushing for reforms. The bill introduced by Boots and Young was heard by the Committee on Corrections and Criminal Law, last week.
Monday, January 16, 2017
Ind. Gov't. - Controversy in Tippecanoe Co. re ink vs electronic fingerprints
WLFI 18's Kayla Sullivan reported Friday in a story that begins:
TIPPECANOE CO., Ind. (WLFI) — Indiana State Police said it has always accepted ink fingerprints and wouldn’t advise otherwise if an electronic fingerprint machine goes down. This response comes after the Tippecanoe County Sheriff’s Office told News 18 someone with ISP said it would not accept ink fingerprints as an alternative to electronic prints.
As News 18 was first to report on Wednesday, during the summer of 2016 an electronic fingerprinting machine went down for about a month and as a result about 500 inmates were not fingerprinted. But as we learned, the two agencies are not on the same page when it comes to procedures.
Now, state police and the sheriff’s office talk about what’s next.
“We do not have the manpower as a state police agency to hand hold and babysit grown adults that are charged with the responsibility of running their agencies,” said David Bursten, state police public information officer.
Indiana State Police are not taking the fall for the Tippecanoe County Sheriff’s Office’s failure to fingerprint 500 inmates last summer, nor does it want to hold the agency accountable.
“The trouble they get is with their local officials, with county prosecutors, with the voters who put them in office,” Bursten said.
But the sheriff’s office was quick to point fingers at state police Wednesday, when we asked why jailers didn’t use ink to fingerprint inmates while the electronic system was glitching for about a month.
“Everything is electronic now. Nobody wants to deal with paper and paper prints. They told us at that time, we probably won’t accept these,” Chief Deputy Steve Hartman told News 18 on Wednesday.
Environment - Still more on "Citizens File Legal Action To Preserve Crown Hill North Woods"
INDIANAPOLIS - A federal judge has denied a request by an environmental group to stop a U.S. Department of Veterans’ Affairs project at Crown Hill Cemetery.From a WTHR story:
In her ruling, Chief Judge Jane Magnus-Stinson of the U.S. District Court of Southern Indiana wrote that the Indiana Forest Alliance’s overstated the impact of the project on a 15-acre parcel in the cemetery’s North Woods.
The group argued that the VA’s environmental impact assessment was flawed, and had asked that the project not go forward until a court could review it. Magnus-Stinson rejected that argument.
Jeff Stant, the executive director of the Forest Alliance, said his group will appeal the ruling to the 7th Circuit U.S. District Court in Chicago.
“We do not believe that the VA complied with the spirit or the letter of the National Environmental Policy Act (NEPA),” Stant said in a statement.
Unless the circuit court intervenes, Magnus-Stinson’s ruling appears to clear the way for the VA to develop a columbarium, which will house the cremated remains of military veterans. The VA bought the 15-acre parcel from Crown Hill Cemetery, Inc. in 2015.
The North Woods at Crown Hill is one of the few remaining pre-settlement, old-growth areas in Indiana, according to a 2006 assessment by an ecologist with the Indiana Division of Nature Preserves.
The Indiana Forest Alliance argued that given the site’s biological and cultural value, the VA should look for alternative site for the columbarium.
There will be a public candlelight vigil for the forest Monday, January 16 at the Crown Hill North Woods from 4 to 5 p.m.
The VA has not responded to the Laura Hare Charitable Trust’s offer made on November 22 to purchase the land for a nature preserve, enabling the VA to find an alternate and more suitable site. “These forests are irreplaceable, and as we continue to lose the last remnants, we are all impoverished,” said Lenore Tedesco, a spokesperson for the Hare Trust. “It’s unfortunate that the VA has chosen this destructive course when they have a viable partner to save this forest and also achieve their goals.”
Since Sept. 1, hundreds of citizens have appealed to Indiana’s congressional delegation and VA Secretary General Robert McDonald to reconsider the project.
Ind. Courts - "Hamilton County court expansion could shrink"
John Tuohy reports in the Indianapolis Star today:
Hamilton County commissioners will soon see early designs for a $22 million expansion of the government center, but one official said he will recommend less courtroom space than originally planned.
“Initially it looked like we needed four courtrooms, but now it seems one or two is more realistic,” said court administrator Orval Schierholz. * * *
Schierholz said judges in the circuit court and six superior courts have large backlogs of cases, but the way the state measures those backlogs is about to change. When the Indiana Office of State Court Services makes the modifications to the “weighted caseload measure” system, it will show that Hamilton County is in need of one or two more courtrooms, rather than four.
“What's changing are the rules, not the number of cases," Schierholz said. * * *
[County Commission President Steve] Dillinger said officials want to avoid the type of miscalculation made when a new juvenile detention center was built in 2007.
The $28.5 million facility was to hold what law enforcement officials expected would be a growing juvenile inmate population. But subsequent changes in state sentencing laws put more juveniles on probation and home detention rather than in jail. The facility, designed to hold 76 youth offenders, usually houses fewer than 10.
“The legislature is constantly tinkering with the laws, and sometimes it is hard to predict what they will do in the future,” Dillinger said.
Ind. Law - NRA: "We are happy to report that a number of pro-gun bills have been filed"
Here is the list, published at NRA-IRA:
Senate Bill 14, introduced by state Senator James Tomes and state Senator Mark Messmer (R-48), would allow professional staff of the Indiana General Assembly, who are licensed to carry a handgun, to do so at the capitol complex.NRA-ILA is the Institute for Legislative Action, the lobbying arm of the National Rifle Association.
House Bill 1071, introduced by state Representative Sean Eberhart (R-57), would allow the petitioner of a civil protective order to temporarily carry a handgun without a permit. This would ensure that victims of domestic violence are not left defenseless at their most vulnerable time while waiting for their carry permit to be approved.
House Bill 1095, introduced by state Representative Woody Burton (R-58), would reform the definition of “armor piercing ammunition” to mirror the federal law. By doing so, it would update the current Indiana law which erroneously prohibits plastic coated ammunition. Coating a bullet in plastic does not make it armor piercing, but it does reduce fouling and wear on a firearm and reduces lead fumes without the higher cost of copper plated bullets. This would simply allow target shooters in Indiana to take advantage of the same advances in polymer technology that many others around the country enjoy when shooting recreationally.
House Bill 1159, introduced by state Representative Jim Lucas (R-69), would eliminate the requirement to obtain a permit in order to lawfully carry. This bill recognizes a law-abiding adult’s unconditional Right to Keep and Bear Arms for self-defense in the manner he or she chooses. This bill will make the current permitting system optional to allow citizens to obtain permits to take advantage of reciprocity agreements with other states.
House Bill 1161, introduced by state Representative Jim Lucas, would create a state income tax credit for expenses incurred when receiving firearms instruction or for purchasing firearm storage devices. This would reduce the financial burden for low income citizens who wish to responsibly exercise their Second Amendment rights.
House Bill 1258, introduced by state Representative Jim Lucas, would allow those who can legally carry their firearms in Indiana to carry on a college campus. There is no reason that an arbitrary border should prevent a law-abiding person from being able to defend themselves once they cross that border. So called “gun free zones” do little to protect people as criminals and those with bad intent simply ignore them, knowing that they will not encounter opposition from armed citizens.
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 1/16/17):
Thursday, January 19
- 9:00 AM - Royce Love v. State of Indiana (71S03-1612-CR-00641) After a jury trial, Love was convicted in St. Joseph Superior Court of resisting law enforcement and mistreatment of a law enforcement animal. On appeal, a majority of the Court of Appeals reversed, concluding video evidence indisputably contradicted police officer testimony about the events underlying the convictions. Love v. State, 61 N.E.3d 290 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 2-1, Sept. 8, 2016 COA opinion (ILB summary here, 8th case). The ILB posted several news stories at the time, under the heading "Appeals court says video 'indisputably contradicts' South Bend police testimony."
- 9:45 AM - Fresenius USA Marketing v. Indiana Department of State Revenue (49T10-1008-TA-00045)The Indiana State Department of Revenue denied Fresenius’s claim for a refund of sales tax paid on medical supplies it sold to dialysis clinics, finding that the relevant exemption applied only to items sold directly to patients. The Tax Court disagreed, and granted summary judgment to Fresenius. Fresenius USA Marketing, Inc. v. Indiana Dept. of State Revenue, 56 N.E.3d 734 (Ind. Tax Court, July 15, 2016), trans. pending. The Indiana Department of State Revenue has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was this was a July 18, 2016 Tax Court opinion, which "present[ed] one dispositive issue: whether the Department is bound by its published ruling interpreting the exemption provided by Indiana Code § 6-2.5-5-18(a)." The ruling concluded:
Even though the 1998 Ruling was not issued to Fresenius, it was entitled to rely on it because it demonstrated factual similarity. Because it did not rebut Fresenius’s showing of similarity, the Department is bound by its interpretation in its 1998 Ruling. Consequently, while the Department is not entitled to summary judgment on this basis, Fresenius is.
- No oral arguments currently scheduled.
This week's oral arguments before the Court of Appeals (week of 1/16/17): Thursday, January 16
- 10:00 AM - ABC Radiology, P.C., et al. v. Cathy Gearhart (Case# not provided on COA calendar) Cathy Gearhart (Plaintiff) filed a complaint in Marion Superior Court against various defendants following the death of her husband, Kent Gearhart, from renal cancer. The defendants to Counts I and II (Defendants) jointly filed a motion requesting that the trial court sever Counts I and II from Count III and transfer venue of Counts I and II to Vanderburgh County. Plaintiffs responded that Marion County was a county of preferred venue because a necessary defendant to the action – the Indiana Patients Compensation Fund – is a governmental organization with its principal office located there. Plaintiffs argued also that all three counts were properly joined because they arise out of the same transaction or occurrence and have common questions of law and fact. Following a hearing, the trial court denied the motion. Defendants appeal, arguing that Plaintiff’s joinder of the underlying negligence actions with the declaratory judgment action was improper and deprived Defendants of their right to trial in a preferred venue county. The Scheduled Panel Members are: Judges Riley, Crone, and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]
- 1:30 PM - CS v. Aegis Women's Health (53A01-1607-CT-01657) After their daughter was born with a variety of health problems, a mother and father filed a medical malpractice claim against several healthcare providers with the Indiana Department of Insurance. Pursuant to the Indiana Medical Malpractice Act, a panel of doctors reviewed the matter and concluded that the healthcare providers had not breached the applicable standard of care. Nonetheless, the parents filed suit against the healthcare providers. The providers moved for summary judgment, and the parents responded, in part, with evidence that they had not presented to the review panel. The trial court granted summary judgment in favor of the providers on the ground that the parents had asserted a different breach in court than they had before the review panel. Issues on appeal include (1) whether medical malpractice plaintiffs can allege breaches in court that they did not first present to the medical review panel and, if so, (2) whether they can rely on evidence in court that was not first presented to the medical review panel. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Bradford and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]
- 2:30 PM - Pastor Llobet, MD v. Juan Guitierrez (45A04-1605-CT-1133) This oral argument will be held shortly after the argument in C.S. v. Aegis Women’s Healthcare, No. 53A01-1607-CT-1657. Both cases raise the issue of whether a medical malpractice plaintiff can pursue in court claims that were not specifically presented during earlier medical review panel proceedings. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Bradford and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]
- 11:00 AM - Otis Sams, Jr. v. State of Indiana (Case# not provided on COA calendar) Before his jury trial in Putnam Circuit Court, Sams moved to suppress the fruits of the inventory search of his truck. The trial court denied Sams’s motion. Sams sought certification for interlocutory appeal, which the trial court also denied. The evidence from the truck was admitted over Sams’s objection at trial. Sams appeals the trial court’s decision to admit the evidence from the truck, arguing that the officers’ inventory search was not sufficiently regulated by standard procedures and thereby ran afoul of the Fourth Amendment to the federal constitution. Sams raises no separate argument under our state constitution. The State responds that the inventory search was properly conducted under the established procedures of the Greencastle Police Department and that the trial court did not abuse its discretion in deciding to admit the fruits of that search. The Scheduled Panel Members are: Judges Kirsch, Robb, and Mathias. [Where: Butler University, Indianapolis, IN]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.Past Court of Appeals oral arguments 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.
Friday, January 13, 2017
Environment - More on "Citizens File Legal Action To Preserve Crown Hill North Woods"
Updating this ILB post from Dec. 8, 2016 (complete with photos of some of the magnificant endangered trees), federal Judge Magnus-Stinson has today issued a 25-page order denying the Plaintiffs' motion for a preliminary injunction. From the order:
For the reasons that follow, the Court denies IFA’s [Indiana Forest Alliance's] request for a preliminary injunction. IFA overlooks the limited scope of this Court’s administrative review, overstates the impact of the Project, and minimizes or even disregards the extensive process the Defendants utilized to solicit feedback and determine the environmental impact of the Project on the Property. Additionally, despite bearing the burden to support its injunction request, IFA assumes the public interest element of the analysis in its favor—without proof—and completely ignores that Crown Hill National Cemetery is currently at capacity and cannot accept additional Veterans for burial. IFA also ignores that Defendants reviewed the environmental impact of the Project after soliciting feedback pursuant to NEPA and made the decision to move forward with the Project after issuing a comprehensive analysis and making the report available to the public in various ways. IFA improperly asks this Court to second-guess that decision, which it cannot do within the context of administrative review. Because IFA has not met its burden to prove that a preliminary injunction is appropriate, its request must be denied. * * *
The Seventh Circuit has emphasized that “a preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it.” Girl Scouts, 549 F.3d at 1085. IFA has not met its burden to show that this is such a case. For the reasons detailed herein, the Court DENIES the Motion for Preliminary Injunction. [Filing No. 17.] This matter will proceed with summary judgment briefing, although the Court asks the assigned Magistrate Judge to hold a conference with the parties to determine if the parties can reach an agreed resolution.
Ind. Decisions - Supreme Court issued disciplinary opinion re Keith Henderson
Updating a long list of earlier ILB posts re Floyd County Prosecutor Keith Henderson, including this one from Oct. 6, 2016, headed "Floyd County prosecutor Keith Henderson should be significantly disciplined, not simply reprimanded, Disciplinary Commission recommends," the Supreme Court has issued a 4-0 opinion today, imposing a public reprimand. Chief Justice Rush concludes:
We decline to disturb the hearing officer’s decision to allow the Commission to amend Count 1 in advance of the final hearing. Upon careful review of the materials before us, we find sufficient support for the hearing officer’s findings and conclusions with respect to each of the charged rule violations. Accordingly, we find Respondent violated Professional Conduct Rules 1.7(a)(2), 1.8(d), and 8.4(d) with respect to Count 1, and we find in favor of Respondent on Count 2.
Discipline: The hearing officer recommended that Respondent receive a public reprimand. The Commission argues he should be suspended. The violation is serious and adversely affected the administration of justice in this case. However, noting Respondent’s misconduct occurred in connection with a single, unusual case and is an aberration from what otherwise has been a long and distinguished career as a public servant, we conclude a suspension is not warranted in this case. Thus, for Respondent’s professional misconduct, the Court imposes a public reprimand.
The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.
Ind. Decisions - More on "Missed Deadline Could Terminate Appeal of Gary Triple Murderer"
A Gary triple murderer will be allowed to appeal his death sentence, despite missing a deadline last year.ILB: Here is the order.
Just one day after hearing arguments, a 4-1 Indiana Supreme Court has granted Kevin Isom's attorneys permission to go ahead with his appeal. Isom had refused to sign one of the necessary papers because he was dissatisfied with his state public defenders. His attorneys say he's declined to even meet with them. * * *
The Court issued a terse two-paragraph order reopening the appeal, and ordering the two sides to submit a schedule within a month for a hearing and final ruling. Justice Geoffrey Slaughter dissented.
Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 15 NFP memorandum decision(s))
For publication opinions today (3):
In Samuel W. Koonce v. Kim M. Finney , a 22-page opinion, Judge May writes:
Samuel W. Koonce (“Husband”) appeals an order denying his Verified Motion for Relief from Judgment Pursuant to Trial Rule 60(B)(6) and his Verified Motion to Clarify Dissolution Decree. We affirm. * * *In Rodney Tyms-Bey v. State of Indiana, a 2-1, 26-page opinion, Judge Baker writes:
Because the Dissolution Court’s Divorce Decree was not void, Husband is not entitled to relief from the judgment under Rule 60(B)(6). The Civil Court did not abuse its discretion when it denied Husband’s motion to clarify. We accordingly affirm.
Rodney Tyms-Bey brings this interlocutory appeal of the trial court’s order granting the State’s motion to strike his notice of defense under Indiana’s Religious Freedom Restoration Act (RFRA). Our legislature has carved out a statutory exception to RFRA protections when the government’s imposition of a burden furthers a compelling interest and is the least restrictive means of furthering that interest. We find as a matter of law that the State’s compelling interest in a uniform and mandatory taxation system falls into the statutory exception such that RFRA affords no relief to Tyms-Bey. Therefore, we affirm and remand for further proceedings. * * *
We adopt the analysis of the Lee Court and hold as a matter of law that, in the context of Indiana’s RFRA, there is a compelling governmental interest in collecting income tax revenue. Moreover, we hold as a matter of law that the least restrictive means of furthering that compelling interest is uniform and mandatory participation in the income tax system. There are no facts that TymsBey could proffer with respect to his exercise of religion that would not be overcome by the State’s compelling interest and the means used by the State in furthering that interest. In other words, as a matter of law, Indiana’s RFRA offers no protection for the allegedly criminal nonpayment of income taxes by TymsBey, and the trial court did not err by denying his request to assert the defense.
The judgment of the trial court is affirmed and remanded for further proceedings.
Vaidik, C.J., concurs.
Najam, J., dissents with a separate opinion. [that begins, on p. 10 of 26] I respectfully dissent. Tyms-Bey’s alleged RFRA defense may ultimately not succeed, but he is entitled to his day in court. The majority’s holding that, in effect, Tyms-Bey has not stated a claim under RFRA and that he is not even entitled to present evidence in support of his alleged defense is too quick to dispose of Tyms-Bey’s claim and denies him the particularized adjudication that is expressly afforded to him by Indiana’s RFRA. Moreover, in enacting Indiana’s RFRA, our legislature explicitly reserved to itself, and withheld from our judiciary, the right to declare categorical exemptions from RFRA’s application. The majority’s holding disregards that command and categorically removes tax-based actions from RFRA’s application. The majority’s analysis further misunderstands the least restrictive means test under RFRA and denies Tyms-Bey his right under Article 1, Section 19 of the Indiana Constitution. And the majority’s selective use of federal authority fails to consider federal cases in which religious exemptions from facially neutral tax laws have been permitted, and, in any event, the authority relied on by the majority is readily distinguishable. * * *
Tyms-Bey is entitled to his day in court and to the same due process as any other criminal defendant, including his right to present his affirmative defense to a jury. Otherwise, RFRA is for naught and offers no more protection to the exercise of religion than does the First Amendment. Accordingly, I would reverse the trial court’s judgment and remand for further proceedings that comply with the unmistakable commands of RFRA, with Article 1, Section 19, and with the same criminal trial procedure we follow when, as here, the defendant asserts an affirmative defense.
In K.G. v. State of Indiana , a 6-page opinion, Judge Altice writes:
K.G. appeals from his adjudication as a delinquent for committing an act that would constitute Class A misdemeanor theft if committed by an adult. Relying upon Ind. Code § 31-37-11-2(b), K.G. argues that he was entitled to discharge because the fact-finding hearing was not commenced within sixty days, excluding Saturdays, Sundays and legal holidays, of the petition being filed. * * *NFP civil decisions today (4):
Although Section 2 uses “must” regarding the time limits for holding the hearing, we conclude that the term is intended to be directory rather than mandatory in this context. Cf. Parmeter v. Cass Cty. Dep’t of Child Servs., 878 N.E.2d 444, 448 (Ind. Ct. App. 2007) (regarding the required timing of a dispositional hearing in a CHINS case, the court found that the use of the term “shall” in the applicable statutes was directory rather than mandatory). Accordingly, we decline the invitation to read a discharge remedy into Section 2(b) that the legislature did not mandate, especially where the legislature specified precise remedies in other parts of the chapter. Judgment affirmed.
NFP criminal decisions today (11):
Ind. Gov't. - More on "Boone County donates $10,000 to fund amicus brief in pivotal tax court appeal"
Updating this Jan. 6th ILB post, Rod Rose follows up last week's "big box/dark box tax" appeal story in The Lebanon Reporter with another, dated Jan. 12 and headed "Chief justice sets filing deadline for amicus briefs in tax bill case." Some quotes:
On Friday, Chief Justice Loretta H. Rush granted the Indiana Association of Cities and Towns — now known as Accelerate Indiana Municipalities — and IMLA permission to file an amicus brief by no later than Jan. 24. She denied an objection filed by Paul Jones Law, LLC, on behalf of Kohl’s Indiana LP, which claimed “there is no good cause” to grant IACT and IMLA’s request to file “because being unaware of the proceedings does not demonstrate good cause,” and that “all parties have completed the original briefing schedule and the filing of additional briefs places an undue burden” on Kohl’s.The story also reports:
Rush said Kohl’s must respond to the IACT/IMLA brief 20 days after it is filed.
Other amicus briefs have been filed by the Indiana Legal Foundation, Inc., and the Association of Indiana Counties. The ILF opposes the supreme court hearing the tax court appeal, claiming acceptance “would be a dangerous affront to stability in the law with a negative impact on Indiana businesses.”
At issue is the taxable value of an 88,242-square-foot Kohl’s at the Boulevard Crossing shopping center in Kokomo. The Howard County Assessor put those tax values at $5.984 million, $5.685 million and $5.906 million in 2010, 2011 and 2012 respectively. Kohl’s unsuccessfully appealed to the Howard County Property Tax Assessment Board of Appeals, then successfully appealed to the Indiana Board of Tax Review. Howard County took that decision to the Indiana Tax Court, where Tax Court Judge Martha Blood Wentworth in September ruled in favor of the retailer. * * *
Tuesday, Boone County Commissioner Jeff Wolfe told the county council that he has verbal agreements from other counties to contribute to the IACT/IMLA brief’s costs. Towns and cities are likely to be willing to contribute as well because of the potential devastating impact on their budgets, should Kohl’s argument be upheld and distribution and manufacturing companies seek similar relief from tax bills.
Howard County asked the Indiana Court of Appeals to overrule the tax court. The appellate court instead upheld the tax court, prompting Howard County to seek an Indiana Supreme Court ruling.The ILB believes the above is incorrect, in that appeals from Tax Court decisions would go directly to the Supreme Court.
Here is the docket in Howard County Assessor v. Kohl's Indiana LP. Here is the ILB summary of the Sept. 7, 2016 Tax Court opinion.
Here is the 43-page Howard County petition for review, filed with the Supreme Court Nov. 7, 2016.
Here is the 27-page amicus brief of the Indiana County Assessors Ass'n., filed Nov. 23, 2016.
Here is the 41-page Kohl's brief in response, filed Dec. 14, 2016.
Here is the 22-page amicus brief of the Indiana Legal Foundation, filed Dec. 19, 2016.
Ind. Decisions - "Missed Deadline Could Terminate Appeal of Gary Triple Murderer"
The sub-header to this story by Eric Berman of WIBC is "Attorneys ask justices to treat unsigned document as technicality, reinstate appeal of death sentence." The case, a direct appeal argued Thursday before the Supreme Court, is Kevin Charles Isom v. State of Indiana. Reporter Berman writes:
The Indiana Supreme Court will decide whether a Gary man who murdered his family has blown his chance to appeal his death sentence.ILB: Watch the oral argument here.
Kevin Isom has been on death row for four years for gunning down his wife and two teenage stepchildren in 2007. But when Isom's public defenders brought him his appeal papers to sign, they forgot one. When they went back to correct it, Isom viewed the oversight as a sign of incompetence, and refused to sign it or even meet with them unless he got a new lawyer. Despite a judge's warnings he'd lose his right to appeal, Isom stuck to his refusal and let the filing deadline pass.
The Court is considering whether the missing document is a harmless oversight, or if allowing his appeal would give defendants a new delaying tactic. Deputy attorney general Kelly Loy notes the missed deadline has already put the case in limbo for a full year. And she questions whether Isom is really interested in appealing. Justice Mark Massa notes Isom flatly said in court he'd sign if he got a new lawyer, and Justice Steve David says the defender's office could definitively resolve the issue by assigning a new attorney and see if it changes Isom's position.
But Justice Robert Rucker says the stalemate reflects a defendant trying to make his own rules. And Massa questions whether Isom's actions and statements indicate that he doesn't understand what's going on, or that he understands perfectly and is trying to game the system.
Isom could still appeal in federal court, but that deadline is seven weeks away. State public defender Anne Kaiser argues Isom's refusal to sign suggests he's mentally incompetent to make decisions about his defense, and says lawyers may pursue the same argument if Isom doesn't authorize a federal appeal.
Thursday, January 12, 2017
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 1 NFP memorandum decision(s))
For publication opinions today (2):
NFP civil decisions today (0):
In Paul and Michelle Riley v. AAA Automotive, LLC, d/b/a 3A Automotive, a 12-page opinion, Judge Bailey writes:
Paul and Michelle Riley (“the Rileys”) appeal a judgment entered upon an arbitrator’s award in favor of AAA Automotive, LLC d/b/a 3A Automotive (“3A Automotive”). The Rileys present the sole, restated issue of whether the trial court erred in refusing to vacate the award, which consisted almost entirely of attorney’s fees, apparently itemized in an ex parte document submitted to the arbitrator but not provided to the Rileys in accordance with Alternative Dispute Resolution Rule 3.4(B) or provided to the trial court. We reverse. * * *In In the Matter of: S.G., L.G., D.G., & A.W. and S.S. (Mother) v. Indiana Department of Child Servcies, and Child Advocates, Inc., a 19-page opinion, Judge Riley writes:
On appeal, the Rileys concede that they did not oppose arbitration after mediation could not be timely scheduled or was unsuccessful. However, neither party provided this Court with an agreement defining the scope of arbitration. The Chronological Case Summary does not reflect the filing of an agreement to arbitrate. Even assuming a proper arbitration order, without an agreement, we cannot definitively discern whether the arbitrator exceeded his authority as to substantive provisions. However, the lack of impartial and fair proceedings is evident. The arbitrator accepted an ex parte document upon which he apparently rested the award. The Rileys’ lack of notice and opportunity to respond is readily apparent from the argument and admissions made by the attorney for 3A Automotive at the motion to correct error hearing:I did not give those [attorney fee’s invoices] to the Defendant because I feel like they’re Work Product and protected by Attorney/Client Privilege because they actually have my strategies inside of them. No objection was made that those details weren’t there. But the affidavit, which is attached – I can – yeah, I don’t have a copy of the affidavit. But in arbitration, an affidavit where I swore that all my attorney fees were correct and accurate was presented to the arbitrator and to the Defendant. And I also presented the arbitrator with my detailed invoices with a claim that they were Attorney/Client Privilege and I wasn’t going to turn [them] over to the Defendant. And there were objections during the arbitration made that I didn’t turn those over to anyone. And the arbitrator looked at my invoices and the hours that I spent on it. My rate is very reasonable. It’s too reasonable in some cases.(Tr. at 31.) Attorney Obermeyer went on to claim that his fee was “fair” but also concede that the fees “still got out of hand.” (Tr. at 31-32.) Subsequent commentary indicated that he claimed entitlement to fees to obtain a copy of the Carfax report, something relevant to his own client’s defense of the counterclaim for fraud.
There is no evidence of an arbitration agreement in the record and, hence, no evidence that there was a meeting of the minds concerning the scope and terms of the arbitration. Thus, the arbitration proceedings were for naught, and the judgment on the arbitration award must be vacated.
The trial court erred in entering judgment upon the purported arbitration award. Reversed.
 As a cautionary note, alternative dispute resolution has reached full bloom since it was first recognized by our Indiana Supreme Court. Nevertheless, absent a contract, our courts are to remain open – pursuant to Article 1, Section 12 of the Indiana Constitution – and participation in alternative dispute resolution is still voluntary. While we encourage voluntary settlement and resolution, we do so only after full disclosure of the nature of the alternative dispute method selected and its consequences to the litigants. It is incumbent upon the mediator or arbitrator to document the agreement to mediate or arbitrate in the Chronological Case Summary. See A.D.R. 1.8. And, moreover, where an individual has been selected first as a mediator, we question the propriety of that individual continuing to participate as an arbitrator, when he or she has first participated with the same litigants in a failed mediation.
Mother challenges the trial court’s order that DCS need not undertake reasonable efforts to reunify her with the Children. In general, once a child has been declared a CHINS, DCS is legally required to “make reasonable efforts to preserve and reunify families . . . to make it possible for the child to return safely to the child’s home as soon as possible.” Ind. Code § 31-34-21-5.5(b)(2). However, such reasonable efforts at reunification “are not required if the court finds . . . [that] [t]he parental rights of a parent with respect to a biological or adoptive sibling of a child who is a [CHINS] have been involuntarily terminated by a court.” I.C. § 31-34-21-5.6(b)(4) (No Reasonable Efforts Statute). In the trial court’s Order adjudicating the Children to be CHINS, it found that reasonable efforts are not required based on the fact that Mother’s parental rights to M.G. and A.G. were previously terminated. Mother now contends that “[t]his [N]o [R]easonable [E]fforts [S]tatute is unconstitutional as applied to [her] and is also void for vagueness.” (Appellant’s Br. p. 12) (internal quotation marks omitted). In the alternative, even if we find that the No Reasonable Efforts Statute is constitutional, Mother asserts that the trial court abused its discretion by applying it in this case. * * *NFP criminal decisions today (1):
Based on the foregoing, we conclude that the No Reasonable Efforts Statute is not unconstitutional as applied to Mother, and the trial court did not abuse its discretion by granting DCS’ request to forego reasonable efforts.
Ind. Decisions - More on COA opinion in Groth v. State
Updating a long list of ILB posts, of which this one on Jan. 10th is the most recent, here in full is an editorial today in the Fort Wayne Journal Gazette. The heading is "Balance of power: Judge wisely holds Pence to open-records law":
Monday, the day his term as Indiana’s 50th governor ended, Mike Pence got a going-away present from the Indiana Court of Appeals. But it came, thankfully, with some crucial qualifiers.
A long-running legal battle over the governor’s decision to deny a 2014 open-records request was resolved in Pence’s favor by a three-judge panel.
By a 2-1 vote, the court upheld a lower court’s ruling that Pence acted properly when he withheld some documents that had been sought by Indianapolis attorney William Groth under the Indiana Access to Public Records Act. The court agreed with Pence’s argument that the documents, which related to Indiana’s decision to join the state of Texas in a legal challenge to an immigration order by President Barack Obama, were legal working papers that were exempt from public disclosure.
Judge Edward Najam wrote that one of the documents the governor decided to withhold, a “white paper” on legal strategy that was prepared by a Texas official, “is exactly the type of record that may be excluded from public access under APRA.” The court ruled that the governor’s decision to redact some information from legal invoices related to the decision was similarly within the law.
This is the way the law is supposed to work. The Indiana public access counselor, Luke Britt, and a superior court judge had previously come to the same conclusion.
But Pence’s legal team sought to go much further, citing an Indiana Supreme Court decision last year that has made the legislature virtually exempt from its own open-records requirements.
That case also involved a request by Groth. He had sought access to any communications that might have flowed between Rep. Eric Koch, R-Bedford, then the chairman of the House Utilities, Energy and Telecommunications Committee, and utility executives regarding a bill Koch was writing that would have discouraged homeowners and other private entities from producing solar power.
Last April, the Indiana Supreme Court effectively washed its hands of ruling on Groth’s request, contending that though the open-records law applied to the legislature, the court should not be determining whether the lawmakers’ definition of a “work product” was appropriate because of the doctrine of separation of powers. (Legislators who profess to be in favor of open government still must address the problem that ruling has created.)
Pence’s attorneys argued that the high court’s concern with separation of powers meant that the governor should be making his own decisions about when and how the open-records law applies to him.
But in a powerfully written opinion, Najam rejected that argument.
“The governor’s argument would, in effect, render APRA meaningless as applied to him and his staff,” Najam wrote. “APRA does not provide for any such absolute privilege, and the separation of powers doctrine does not require it. We reject the Governor’s assertion that his ‘own determinations’ regarding whether to disclose public records are not subject to judicial review.”
Steve Key, executive director of the Hoosier State Press Association, said the decision was a key one. “They didn’t buy the governor’s argument that this is a separation-of-powers issue,” he said Tuesday.
Pence’s attempt to claim exemption from the open-records law was puzzling; he has generally been a strong champion of open government. In any case, new Gov. Eric Holcomb has an opportunity to reset the clock by indicating he accepts the court’s decision and intends to live within the letter and spirit of Indiana’s open-records law.
Ind. Law - "South Bend school board president accused of sending 'vulgar and derogatory' text"
Kevin Allen reports today in a story in the South Bend Tribune that begins:
On Monday evening, South Bend Community School Corp. board members voted unanimously to make Stan Wruble the board's new president.
Near the end of that same meeting, local attorney Pete Agostino stood up during the public comment period to say the board should censure Wruble, who also is a local attorney. Agostino's reason: a "vulgar and derogatory" text message that Wruble sent to one of Agostino's clients.
"But it isn't the vulgarity of that message that causes me to be here," Agostino told the board. "The words that Mr. Wruble used were not just offensive. They manifested his prejudice based on gender, sexual orientation and national origin. And that is why I'm here. There should be no room in the South Bend Community School Corp. for behavior like that — especially among members of this board."
Agostino handed a printout of Wruble's text message to each member of the board, but he didn't ask for it to be read aloud at the meeting.
The Tribune filed a public records request for the document on Tuesday. South Bend school administrators acknowledged that the document is a public record, but they had not provided it by Wednesday night.
Ind. Gov't. - "Coalition fighting abortion bills"
Niki Kelly reports in the Fort Wayne Journal Gazette:
As legislators push to add more regulations to abortions – and even a total ban – a new alliance supporting reproductive rights has sprouted.
The Indiana Reproductive Justice Coalition is going to fight abortion limitations this session and started Wednesday by delivering 3,000 petitions to Gov. Eric Holcomb’s office against House Bill 1134.
The legislation, sponsored by Goshen Republican Rep. Curt Nisly, would ban abortion.
“We hoped to move beyond bills trying to strip Hoosiers of their constitutional rights,” said Harmony Glenn of Indy Feminists. “We find this unacceptable.”
It is the latest attempt by Republicans, who have a supermajority in the Indiana House and Senate, to try to reduce or eliminate the number of abortions in the state.
Several recent Indiana bills have been struck down by federal judges, including one last year that would have prohibited abortions sought because of a fetus’ genetic abnormalities – such as a diagnoses of Down syndrome.
Nisly’s bill is meant as a test case to see if a new U.S. Supreme Court will overturn Roe v. Wade – the 1973 decision legalizing abortion.
“It’s time to bring the Roe v. Wade era to its logical conclusion,” Nisly said. “My goal is to deregulate abortion right out of existence in Indiana.”
But that’s not the only bill on the table.
Sen. Dennis Kruse, R-Auburn, has another one that has a much better chance of becoming law because it builds on current restrictions.
Senate Bill 118 would push back the waiting period to 48 hours between an initial visit and when a person could have an abortion. And at least 48 hours beforehand, women would be forced to view an ultrasound of the fetus and listen to the fetal heartbeat.
Current law allows women to opt out and the waiting period for informed consent is 18 hours.
Kruse said his bill isn’t about patient safety – it’s about hoping more women will reconsider and decide not to abort.
“I’m pro-life so I think it would advance that cause,” he said. “When women actually hear the heartbeat or see the baby on an ultrasound, many decide to keep it. They see it as a human being.”
House Speaker Brian Bosma hasn’t killed Nisly’s bill but also hasn’t embraced it, saying, “I don’t think we should buy a lawsuit, personally.”
It has been sent to House Public Policy where new Chairman Rep. Ben Smaltz, R-Auburn, hasn’t decided if it will get a hearing.
Kruse’s bill has been sent to the Health and Provider Services Committee, where abortion bills have regularly passed.
Ind. Gov't. - "DNR hearing officer backs state park alcohol ruling change"
A change to bring a state rule into compliance with a new state law that allowed the Indiana Department of Natural Resources to apply for a liquor permit for the pavilion at Indiana Dunes State Park recently got an apparent boost.ILB: Here is the 145-page report.
The hearing officer who presided over a public hearing on the change held in late November at Woodland Park recommended the state's Natural Resources Commission make the change in a filing made public Tuesday on the DNR's website for the pavilion project.
The commission is scheduled to consider the matter during a Jan. 17 meeting in Indianapolis.
The 145-page filing, which includes public comments made at the hearing as well as those submitted electronically and by mail, also includes a DNR response to concerns raised by the public about safety and other matters if liquor were made available along the lakefront.
Ind. Gov't. - "New Superintendent of Public Instruction, Jennifer McCormick, is responding to concerns about layoffs and resignations at the Department of Education" [Updated]
Kara Kenney reported last evening for WRTV6:
The new Superintendent of Public Instruction, Jennifer McCormick, is responding to concerns about layoffs and resignations at the Indiana Department of Education.[Updated at 10:05 a.m.] Kara Kenney tweets: "@INATTYGENERAL office confirms 24 people gone from office through resignations, retirements and firings."
“This is the part of transitioning that nobody enjoys,” said McCormick. “Obviously they’re good people that are in just a situation where we want to make some changes.”
Call 6 Investigates has confirmed 34 people have been pink-slipped and an additional 26 people have resigned, for a total of 60 workers.
That’s approximately a quarter of IDOE’s entire 250 person workforce.
As the office changes from Democrat to Republican leadership, some of the layoffs were expected, especially among Glenda Ritz’s cabinet, such as chief of staff and government affairs.
However, among those pink slipped also included outreach coordinators who worked with children and teachers in struggling schools. * * *
McCormick denied politics were at play when it came to layoffs.
“It wasn't a political activity,” said McCormick. “We looked at job performance and where we want to go with programming." * * *
Call 6 Investigates also checked with other elected offices, such as the Indiana Attorney General’s office and the Governor’s office, but they did not provide any layoff or resignation figures.
Ind. Decisions - Tax Court posts one, filed Jan. 11
In Merchandise Warehouse Co., Inc. v. Indiana Department of State Revenue, an 11-page opinion, Judge Wentworth writes:
Between October 2009 and September 2012 (the period at issue), Merchandise Warehouse Co., Inc. purchased certain freezer equipment and electricity to power its freezer equipment. Upon review, the Court finds that those retail transactions were not exempt from Indiana sales tax under Indiana Code § 6-2.5-5-3 and Indiana Code § 6- 2.5-5-5.1. * * *
Merchandise Warehouse does not produce other tangible personal property in an integrated production process when it freezes its customers’ food products. Accordingly, the Court GRANTS summary judgment in favor of the Department and AGAINST Merchandise Warehouse.
Wednesday, January 11, 2017
Ind. Decisions - 7th Circuit decides one Indiana case today
In Stephen H. Perron v. J.P. Morgan Chase Bank, N.A. (SD Ind., Pratt), a 12-page opinion, Judge Sykes writes:
Stephen Perron and Christine Jackson owned their home in Indianapolis subject to a note and mortgage serviced by J.P. Morgan Chase Bank. In 2012 the couple divorced, ending their 25-year marriage. They blame Chase for contributing to the collapse of their marriage by failing to comply with its obligations under the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601–2617.
RESPA requires mortgage servicers to correct account errors and disclose account information when a borrower sends a written request for information. In 2011 Perron and Jackson sent two such letters accusing Chase of erroneously paying the wrong homeowner’s insurer using $1,422 from their escrow account. The mistake was their own fault; they had switched insurers without telling Chase. When the bank learned of the change, it promptly paid the new insurer and informed the couple that their old insurer would send a refund check. The bank also told them to forward the refund check in order to replenish the depleted escrow.
They didn’t. When the refund came, they pocketed the money instead. So the bank adjusted their monthly mortgage payment to make up the shortfall. When the couple refused to pay the higher amount, the mortgage went into default. Instead of curing, they sent Chase two letters requesting information under RESPA and demanding that the bank reimburse their escrow. In response Chase sent a complete account history, including a detailed escrow statement.
The couple then sued Chase claiming that its response was inadequate under RESPA and caused more than $300,000 in damages—including the loss of their marriage. They tacked on a claim for breach of the implied covenant of good faith and fair dealing. The district judge entered summary judgment for Chase.
We affirm. Chase’s response almost perfectly complied with its RESPA duties. To the extent that any requested information was missing, Perron and Jackson suffered no actual damages and thus have no viable claim. Nor did Chase breach the duty of good faith and fair dealing, assuming that Indiana would recognize the implied covenant in this context.
Ind. Courts - Monroe County: "Court officials feeling impact of sentencing code changes"
Ernest Rollins reports today in the $$ Bloomington Herald-Times in a long story - some quotes:
A change in state law has been in effect for a full year, and court officials say the local justice system is feeling the impact of the recent law change regarding the incarceration of Level 6 felons.The story continues that under a "federal consent decree that required the jail not to exceed a 248 secure bed count number" the Marion County jail population is monitored on a daily basis.
Starting on Jan. 1, 2016, Level 6 felons were ineligible to be sentenced to state correctional facilities. The state Legislature approved the change in 2014 as part of its revision of the Indiana Criminal Code. Sentencing for Level 6 felonies ranges from 6 months to 2½ years, and can be for crimes such as possession of controlled substances or check deception and fraud.
[Monroe County Circuit Court Judge Kenneth Todd] said since the ruling went into effect, the typical number of inmates in secure beds at the jail has increased to the point where the county has hit the ceiling — or surpassed — jail capacity as part of the consent decree. * * *
When the jail exceeds allowed jail capacity, Crowe said, the county looks to other jails to house offenders. * * *
But the strategy of transporting inmates to other counties when Monroe has capacity issues is becoming harder to carry out.
“We are not getting other counties willing to accept them,” Crowe said, adding the common refrain is that the jails do not have any room. Crowe said the law change has affected other counties much more than Monroe. He said many of the inmates are at the jail on charges of probation violation or failure to appear in court, generally Level 6 felons and below who were already convicted and spent time in the county jail.
Changes to the criminal code also affected the county’s community corrections department, which saw an increase in referrals.
Ind. Decisions - More on "Court says IU South Bend professor who filed suit wasn't defamed: IU found another professor responsible for plagiarism"
SOUTH BEND — Tenured longtime Indiana University South Bend business professor Douglas Agbetsiafa was fired in 2014 for plagiarism, according to Indiana University.
The Tribune made a formal request to IU about the circumstances of Agbetsiafa's departure. * * *
Agbetsiafa was a professor and at one time chair of IU South Bend's economics department. He was paid a salary of $108,351 in 2013, according to the state's online database of public spending.
A Jan. 4 Tribune article reported the outcome of a defamation lawsuit filed by IU South Bend business professor Peter Aghimien against another business professor, Mark Fox.
Ind. Decisions - "Appeals court reverses drug conviction after EPD SWAT raid"
The Indiana Court of Appeals last week ruled to reverse an Evansville man’s felony drug sentence, claiming city police used unreasonably intrusive methods during an arrest involving a SWAT team and flash-bang grenades.Later in the story:
In a 2-1 decision published Friday, the court ruled that some evidence in the trial shouldn’t have been admitted because of how it was obtained. Judges particularly criticized the use of a flash-bang grenade that went off in the same room as a 9-month-old baby.
“Comparing the factors, we conclude that while there was a considerable degree of suspicion, the extent of law enforcement needs for a military-style assault was low and the degree of intrusion was unreasonably high,” Judge Elaine Brown wrote in the majority opinion. “Under these specific circumstances and particularly in light of the use of a flash bang grenade in the same room as a 9-month old baby who was ‘very close’ to where the flash bang was deployed, the State has not demonstrated that the police conduct was reasonable under the totality of the circumstances. We conclude that the search violated Watkins’s rights under Article 1, Section 11 of the Indiana Constitution ... ."
Cullum said the department has since changed the way it employs flash-bang devices, putting them on the threshold of a residence as opposed to tossing them inside. The impact, he said, is the same.The ILB recalls this 2015 7th Circuit opinion, also involving the Evansville police and flash-bang grenades.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 5 NFP memorandum decision(s))
For publication opinions today (1):
In Dominique Castillo v. State of Indiana, a 10-page opinion, Sr. Judge Sharpnack writes:
The trial court revoked the probation of Dominique Castillo and ordered that he serve the whole of his suspended sentence. He appeals contending that the trial court violated his due process rights because it did not explain why it ordered him to serve hi s entire suspended sentence. He also claims that because the trial court did not explain its choice, it is possible that it may have considered inappropriate testimony. He requests that we “reverse the trial court’s order revoking his suspended sentence and remand for an additional hearing to address the appropriate sanction for his violation of probation after which the trial court should issue a statement of its reasons for its decision.” Appellant’s Reply Br. p. 7. We affirm. * * *NFP civil decisions today (0):
Castillo’s argument, by his own admission, is “pure speculation because” according to Castillo “there is [no statement] from which the trial court’s rationale [in choosing a sanction] can be discerned.” Appellant’s Br. p. 11. However, w e already have determined the trial court was not required to provide specific reasons for imposing the sanction. W e are un persuaded the trial court may have considered inappropriate testimony. No abuse of discretion occurred here.
NFP criminal decisions today (5):
Ind. Decisions - More on: Federal Judge Barker decides GEFT challenge to Indianapolis digital sign prohibition
Billboard company GEFT Outdoor LLC and the city of Indianapolis have agreed to a court settlement that will allow the company to operate two local digital billboards while sparing the city any financial liability for a former sign ordinance that was found to be unconstitutional.Here is a copy of the 14-page, Jan. 10, 2017 order.
Judge Sarah Evans Barker issued an order stipulating terms of the agreement Tuesday in U.S. District Court in Indianapolis.
Under the settlement, Indianapolis-based GEFT will be able to convert two traditional billboards near Interstate 70 on the city’s east and west sides into digital signs, as long as it abides by certain conditions.
The city had previously denied GEFT's requests to convert the billboards, which are at 4305 W. Morris St. and 5780 E. 25th St.
GEFT agreed to abandon its claim for damages and attorneys’ fees against the city. The company said in June that it expected those damages would amount to millions of dollars.
The agreement effectively ends a legal fight that began in October 2015 when GEFT sued the city over its sign ordinance. The company claimed that a recent U.S. Supreme Court decision made the city’s sign ordinance unconstitutional.