Monday, May 02, 2016

Ind. Law - Indianapolis blogger Gary Welsh died this weekend

The IBJ story about his death, headed "Attorney blogger Gary Welsh dies in apparent suicide," concludes:

Jim Klimek, an attorney and friend who worked across the hall from Welsh in the Chamber of Commerce Building on Meridian Street, said that Welsh had been depressed lately, in part because the blog was extremely time consuming but generated little revenue.
Gary's blog, Advance Indiana, had some astonishingly good posts, he would have been a marvelous investigative journalist. Except that, as another blogger wrote yesterday, he seemed to be two persons. The other person saw totally outlandish conspiracies everywhere. From Doug Masson's Blog:
Much of what he wrote struck me as hateful or paranoid, but I could never quite bring myself to remove Advance Indiana from my feed reader because some of what he wrote was insightful and showed energetic investigation. At times, I felt like I was reading posts from two different people. So, in the blogosphere, I kept reading what he wrote, but generally gave him a wide berth. If nothing else, I respect his tenacity and output.
Jennifer Wagner wrote on Facebook:
I was one of his frequent targets since returning from D.C., though we chatted often and shared tips when we both started blogging in the mid-2000s.

Many of his attacks were based on misinformation and half-truths. Just last week, I pulled a school fundraising letter out of a batch being sent to local businesses because I suspected he would see my name and write a scathing blog post about a school choice supporter trying to raise funds for a public school.

But I'd prefer to remember Gary when he was an early and vocal and unwavering champion for the LGBT community, to remember his relentless pursuit of public documents, a lost art among many mainstream reporters who no longer have the time to cull through hundreds of pages of legal jargon.

I too had several early run-ins with Gary and thereafter gave him a wide berth. But I did respect his talents and did, over the years, recommend a number of Advance Indiana posts to ILB readers.

Ironically, one of Gary's last posts referenced the ILB. The March 1, 2016 post was headed "Indiana Law Blog Plans To Go Dark At End Of March." Here is the beginning, which I quote, not because it mentions me, but because it tells something of Gary's recent state of mind with respect to blogging, and with respect to the world:

I'm sorry to hear that Marcia Oddi plans to end her Indiana Law Blog at the end of this month after 13 years of excellent service to the Indiana legal community. As a long-time blogger, I know how much time and dedication she has committed to putting out the greatest online legal source for legal practitioners in Indiana.

It's worth much more to many of us who practice law than that Indiana Lawyer newspaper that multi-millionaire Mickey Maurer sends out to the legal community through some financial arrangement he has with the Indiana State Indianapolis Bar Association we support with our annual dues.

It's very difficult to labor day after day to provide a service to the public and, in turn, receive so little reward for your efforts. Speaking from personal experience, I have a few loyal readers who have made donations to my blog over the years for which I'm very appreciative, but I can attest to the fact that it doesn't come close to compensating you for the value of the time and service you like to believe you're providing. It's particularly upsetting when you see how much people of means in our state and local community dump into these nonprofit organizations of dubious value and political campaigns, but who see no value in supporting the service people like Oddi and myself provide.

I'm sorry that things couldn't have gone better for Gary. RIP, fellow blogger.

Posted by Marcia Oddi on May 2, 2016 07:37 PM
Posted to Indiana Law

Ind. Law - “The Law as a Shield and a Sword – An Advocate’s Perspective”

From the Wabash College News, an April 18th story by Richard Paige begins:

With a career spent defending individual liberties, perhaps it wasn’t surprising that Kenneth Falk, Legal Director of the American Civil Liberties Union of Indiana, described the Bill of Rights as being like poetry during the keynote address Monday at the David W. Peck Lecture and Awards Banquet, the Wabash College Prelaw Society’s annual honors program.

Falk’s lecture, “The Law as a Shield and a Sword – An Advocate’s Perspective” touched on both his advocacy for civil liberties and passion for civility.

“Our society is set up to need lawyers,” said Falk, who received the Senior Peck Medal for Eminence in the Law. “The law is an extremely human endeavor and I provide access to people who have none. The Bill of Rights is free flowing, it’s like poetry. It is a call to action to make sure rights don’t disappear. Every right is precious and must be fought for.”

Falk spent 19 years at the Legal Services Organization of Indiana, serving those unable to pay for needed legal services, and eventually becoming the Director of Litigation. For the last two decades he has served the ACLU in Indiana.

Posted by Marcia Oddi on May 2, 2016 02:15 PM
Posted to Indiana Law

Ind. Decisions - Some history about the availability of Indiana COA not-for-publication opinions

The Question: Recently a reader wrote to me saying he had looked in the Indiana Courts' database of past opinions and could not find a Court of Appeals opinion from 2004, although the Court of Appeals archives appear to go back to 1999.

The Court of Appeals opinion was cited in an April 26th 7th Circuit opinion. Here is the ILB summary of the 7th Circuit opinion. Here is the 7th Circuit reference:

The convictions were affirmed on direct appeal, see Miller v. State, No. 34A02-0307-CR-563 (Ind. App. June 8, 2004).
The Answer: This 2004 opinion was an unpublished (NFP) opinion. Until late in 2006, Court of Appeals opinions designated as Not for Publication were not published, either in print or online! Today, nearly 10 years later, many may be unaware of this.

Although the NFP opinions were full opinions, just as they are today, they were not available except by formally requesting a printed copy ($1.00/page) from the Court of the Appellate Courts. Of course, to do that, you had to be aware the decision existed.

Sometimes, reports from this or that unpublished opinion would appear in the news. This would be because a reporter had taken the opportunity to read though the piles put out on the clerk's counter for the press. Annoyingly to the ILB, often the resultant story would not give the case name!

And what about West? Were the NFPs published by West, either online or in print? I've confirmed my recollection with the Supreme Court librarian - the answer is no, West simply published the weekly disposition table issued by the Court.

So if you try today to locate a NFP case from before August 2006 in the COA's online archive cases, you won't find it. And you won't find it via West. But a copy of the COA opinion, NFP or Published, may be found in the case file in the records of the Clerk of the Appellate Courts.

More: I remember distinctly the day that this changed. It is recorded in this Aug. 23, 2006 ILB post. Some quotes:

It is not news that the Court of Appeals issued 15 NFP opinions today, but these have been posted. * * *

With permission. I am posting a message that I received earlier today in answer to the question "Does this [posting of 15 NFPs] indicate a change in policy, or was it a posting error? The ILB is attempting to find out."

Dear Marcia,

The internet posting of our not-for-profit opinions which you noticed today is the result of a change in policy, not inadvertence. This change comes about after extended study and debate which was prompted to a significant degree by a number of postings in The Indiana Law Blog.

Thank you for both raising the issue and contributing to the debate. If you have any questions, please write or call.

Sincerely,
Jim Kirsch

James S. Kirsch
Chief Judge
Court of Appeals of Indiana

Finally, here is the Supreme Court order, issued August 21, 2006, where the Supreme Court consents to the posting of Court of Appeals not-for-publication memorandum decisions. The vote is interesting:
Sullivan and Boehm, JJ, concur.
Shepard, C.J, Dickson, J, and Rucker, J. concur in result in the interests of comity, notwithstanding their belief that the posting of not-for-publication opinions on the Internet is unwise.

Posted by Marcia Oddi on May 2, 2016 10:12 AM
Posted to Indiana Courts | Indiana Decisions

Ind. Courts - Gov. Pence has a little over one week left to name a new Supreme Court justice

On March 11th the Judicial Nominating Commission formally submitted the names of three nominees to Governor Pence. From the Constitution:

If the Governor shall fail to make an appointment from the list within sixty days from the day it is presented to him, the appointment shall be made by the Chief Justice or the acting Chief Justice from the same list.
For more info, see this ILB post from April 25.

The Supreme Court has two oral arguments set for Thursday, May 5th.

Posted by Marcia Oddi on May 2, 2016 09:25 AM
Posted to Vacancy on Supreme Court - 2016

Ind. Courts - Report on Tax Court available today?

As the ILB noted in this post from April 27th:

Chief Justice Rush also mentioned that the report on the Indiana Tax Court would be coming out soon. The order creating the Tax Court Task Force was issued May 15, 2015, and concludes:

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

So perhaps the public can expect to see it today.

Posted by Marcia Oddi on May 2, 2016 09:14 AM
Posted to Indiana Courts

Ind. Courts - Commercial Court Pilot Project, an Update from Judge Bobay

The May issue of Indiana CourtTimes includes a long article by Judge Craig J. Bobay, Allen Superior Court, one of the six pilot project judges, detailing the history and the current status of the project. A sample:

The main goals of commercial courts are to manage factually and/or legally complex commercial litigation as efficiently, competently, and predictably as possible, and to provide consistency in trial court commercial decisions. Another goal is to enable businesses involved in commercial disputes to continue operations with minimal interruption.

Commercial court cases are presided over by judges motivated to become involved, and who handle commercial cases with specific “hands on” case management tools.

Those commercial court case management tools include:

  • Scheduling early case management conferences with parties to streamline issues and determine if early settlement conferences will be productive.
  • Involving the parties and counsel in developing and implementing effective case management plans, including prompt completion of discovery.
  • Jointly anticipating problems before they arise, rather than waiting until counsel present them to the court.
  • Requiring parties to appear for periodic status conferences with joint status reports.
  • Having courts available for hearings on short notice (i.e., within a few days).
  • Employing commercial court masters to assist in resolving discovery disputes and providing other guidance to resolving the conflicts as appropriate for each case.
  • Encouraging parties to consolidate trial on the merits with preliminary injunction evidentiary hearings when applicable.
  • Using electronic filing Orders to facilitate efficient and organized case management and discovery.
See all the ILB posts on the commercial courts project.

Posted by Marcia Oddi on May 2, 2016 09:09 AM
Posted to Ind. Commercial Courts | Indiana Courts

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

From Sunday, May 1, 2016:

  • Nothing
From Saturday, April 30, 2016:

Posted by Marcia Oddi on May 2, 2016 07:45 AM
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/2/16):

Thursday, May 5

  • 9:00 AM - Cynthia Bell v. State of Indiana (49A02-1504-CR-234) Bell was convicted of criminal mischief and ordered to pay restitution as a condition of her probation. A divided panel of the Court of Appeals affirmed the restitution order, the majority concluding the trial court did not abuse its discretion in determining Bell had the ability to pay. Bell v. State, No. 49A02-1504-CR-234 (Ind. Ct. App. Feb. 2, 2016) (mem. dec.), trans. pending. Bell has petitioned the Supreme Court to accept jurisdiction over the appeal.

    ILB: This was a 9-page, 2-1, NFP, Feb. 2, 2016 COA decision.

  • 9:45 AM - State of Indiana v. Frank Hancock (39S05-1604-CR-182) The Jefferson Superior Court dismissed two counts of possession of a firearm by a serious violent felon after concluding that Hancock’s prior conviction for residential burglary in Ohio was not “substantially similar” to residential burglary in Indiana. When the State appealed, the Court of Appeals affirmed the dismissal. State v. Hancock, --- N.E.3d ---, 2016 WL 275308 (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 Jan. 22, 2016 COA opinion that concluded "it is clear that the Ohio and Indiana residential burglary statutes are not substantially similar as a matter of law."

Next week's oral arguments before the Supreme Court (week of 5/9/16):

Thurssday, May 12

  • 9:00 AM - Steven Clippinger v. State of Indiana (71S00-1510-LW-590) After a bench trial, the St. Joseph Superior Court found Clippinger guilty of two counts of murder and one count of being a serious violent felon in possession of a firearm. The trial court imposed two sentences of life without parole and a sentence of twenty years, all to run consecutively. In this direct appeal, Clippinger argues that the trial court did not support his life without parole sentences with sufficient findings, and that the sentences should not run consecutively.

  • 9:45 AM - Melvin C. Hamilton v. State of Indiana (65A04-1412-CR-592) Hamilton was convicted in the Posey Circuit Court of three counts of child molesting. The Court of Appeals reversed Hamilton’s convictions and remanded for retrial after concluding that vouching testimony was improperly admitted and that the error was not harmless. Hamilton v. State, 43 N.E.3d 628 (Ind. Ct. App. 2015), trans. pending. The State has petitioned the Supreme Court to accept jurisdiction over the appeal.​

    ILB: This was a Sept. 9, 2015 COA opinion that concluded "The trial court committed reversible error in admitting Elfreich’s [ILB - "Molly Elfreich, a trained forensic interviewer"] testimony regarding whether D.P. or A.S. had been coached. However, Detective Fortune’s statements during his interview with Hamilton did not constitute improper vouching. We reverse Hamilton’s convictions and remand for retrial consistent with this opinion." Opinion on Reh. Dec. 23, 2015 (5th case).

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/2/16):

Wednesday, May 4
  • 1:30 PM - Melton v. Indiana Athletic Trainers Board, et al (49A05-1508-CT-1123) Appellant Molly A. Melton appeals orders of the trial court granting a motion to dismiss and a motion for judgment on the pleadings in favor of the Indiana Athletic Trainers Board (the "Board"), dismissing Melton's Section 1983 action and her petition for judicial review challenging the Board's order indefinitely suspending her license as an athletic trainer for a period of at least seven years. At the administrative level, Melton did not contest allegations that she engaged in a consensual sexual relationship with a patient. At the hearing before the Board, Melton did not appear due to embarrassment relating to the allegations and sent counsel to appear on her behalf. The Board filed notice of proposed default because Melton did not personally appear. Later, the Board convened and entered a default and the order suspending her license. The trial court dismissed Melton's petition for review because Melton did not file the agency record with the court within the 30-day period set by IN Code Section 4-21.5-5-13. Later, the court also dismissed Melton's Section 1983 claim under IN Trial Rule 12(C). The Scheduled Panel Members are: Judges Kirsch, Mathias and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 5/9/16):

  • No oral arguments currently scheduled.

The past COA oral arguments which have been webcast are accessible here.

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.


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

Posted by Marcia Oddi on May 2, 2016 07:40 AM
Posted to Upcoming Oral Arguments

Saturday, April 30, 2016

Ind. Courts - "Retiring Indiana Justice Dickson hailed for civility"

Rick Callahan of the AP's story appears in many papers today, including the South Band Tribune. Some quotes:

INDIANAPOLIS — Indiana Supreme Court Justice Brent Dickson ended his long tenure on the state's high court Friday with a retirement ceremony filled with praise from the court's other justice for his civility, grace and a legacy of nearly 900 legal opinions.

About 200 people packed the court's Statehouse courtroom to toast Dickson, whose tenure of more than 30 years is second only to the 35 years that 19th century Justice Isaac Blackford served on the state's court of last resort.

The court's four other justices took turns paying homage to Dickson, who is retiring before reaching the court's mandatory retirement age of 75 in July. * * *


Dickson later offered farewell remarks to the gathering that included lawmakers, several federal judges and members of the state's appeals and tax courts.

He choked up as he thanked his staff, law clerks, colleagues and others for their assistance over the years.

"As I step down from this bench today I do feel an enormous sense of gratitude," he said.

Gov. Mike Pence told the gathering that Dickson had amassed "a career in public service which will inspire Hoosiers for generations to come."

The governor presented both Dickson and his wife, Jan, with Sagamore of the Wabash awards — among Indiana's highest honors. Jan Aikman Dickson is founder of the Judicial Family Institute, a national group that assists judicial households and their extended families.

You may watch the retirement ceremony here.

Posted by Marcia Oddi on April 30, 2016 10:32 AM
Posted to Indiana Courts

Ind. Decisions - "State’s high court kills Fortville annexation"

The Supreme Courts April 28th decision in Town of Fortville v. Certain Fortville Annexation Territory Landowners (ILB summary here) is the subject of a long story by Scott Slade in the Greenfield Daily Reporter. Some quotes:

In 2013, Fortville passed a resolution to annex almost 6,000 acres; a year later, the town reduced the area to 644 acres, comprised of 95 parcels of land, 65 homes and about 160 residents. More than 90 percent of the residents opposed the annexation, arguing the town had no plans for its future development, which would justify the annexation. * * *

A trial court had previously ruled in favor of property owners opposing the annexation; but the town appealed the decision and won, sending the case back to the trial court. But before the case returned to the trial court, the property owners asked the Supreme Court to take up the case, which it did.

Thursday’s decision upholds the original trial court decision in favor of the remonstrators — the property owners fighting annexation.

The Supreme Court ruling states a contention Fortville made in its successful appeal — that there was sufficient evidence the annexation area “was needed and can be used for Fortville’s development in the reasonably near future” — had been weighed correctly by the trial court that ruled against the town. * * *

The ruling notes “unrebutted evidence shows that Fortville has no plans to build roads through the territory ...; or provide sanitary sewer service until unspecified development moves into the Annexation Territory ...; or provide parks and recreation services to the Annexation Territory.”

The court also pointed to a 775-acre annexation Fortville approved in 2007 that included 500 acres of farmland that has not been developed.

Posted by Marcia Oddi on April 30, 2016 10:22 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Carmel-based Mainstreet Property Group LLC is challenging a state-approved moratorium on new transitional care facilities

From Inside Indiana Business, this April 29th story by Dan McGowan begins:

HAMILTON COUNTY - Carmel-based Mainstreet Property Group LLC is taking the state to court over a state-approved moratorium on new transitional care facilities. The suit, filed Friday in Hamilton County Circuit Court, cites top Indiana State Department of Health officials and says the law is a violation of both the Indiana and U.S. Constitutions.

Senate Enrolled Act 460 became law last year without Governor Mike Pence's signature after its approval by the General Assembly. The Terre Haute-based Bopp Law Firm is representing the developer and says provisions of the law prevent the Department of Health from licensing new facilities or beds, certifying new beds to participate in state Medicaid or transferring beds between existing facilities.

Mainstreet adds that the law halted completion of pending projects, costing the company more than $9 million. The company has developed two dozen properties in the state and a handful out-of-state, with 30 currently under construction throughout the U.S.

Attorney Jim Bopp says "prohibiting a business like Mainstreet from doing business in our state, and losing the jobs that they can create, just to protect existing antiquated nursing homes makes no sense for Hoosiers. We believe that the Constitution prevents that from happening through this retroactive Moratorium."

Founder and Chief Executive Officer Zeke Turner says "after careful consideration, we believe that filing this lawsuit is our only recourse to challenge a moratorium that has stifled competition and essentially cut Hoosiers off from receiving care that gets them well and back to their lives."

The Terre Haute Tribune-Star also has a long story.

This Dec. 29, 2014 editorial in the Fort Wayne Journal Gazette, headed ""Lobbyists' protests shouldn't sink nursing home bill"," may add some background.

Posted by Marcia Oddi on April 30, 2016 10:07 AM
Posted to Indiana Government

Courts - More on "Illinois, Indiana join in funding move to keep Illiana Expressway alive"

Updating this ILB post from last Monday, April 25, the Gary Post-Tribune's Carrie Napoleon reported yesterday afternoon, April 29th in a long story - some quotes:

Local officials and opponents of the Illiana toll road say they were surprised to learn the Indiana Department of Transportation plans to make court-ordered corrections to the first phase of an environmental impact study for the stalled project and foot the bill.

In a court filing April 25, INDOT has agreed to fund the technical work needed to comply with the court's order in Openlands Et al. v. U.S. Department of Transportation et al., which last year found the study was flawed despite Illinois' inability to move forward due to lack of funding.

State Sen. Rick Niemeyer, R-6th, said he has been reaching out to INDOT for the past several months in an effort to get an official statement on where Indiana stands on the highway project -- whether it go forward, wait until Illinois has funding or scrap the effort – but has gotten no response.

"We know Illinois is on hold. I don't understand why Indiana is not coming out with a statement on this for Indiana residents," Neimeyer said. "I'm frustrated I haven't got the answers back."

The lack of communication has been an ongoing issue regarding the project, Niemeyer said, adding local residents are left to learn about the status from Illinois officials or in the media. News of the court motion was no different.

"I was unaware," he said.

Since the motion was filed, Niemeyer said he now has been in touch with INDOT officials who say too much money has been invested so far in the project to not at least try to address the issues raised in the lawsuit. The two states were directed by the court to either fix the problems with the study or to scrap the project. * * *

Allen Grosboll, co-director of legislative affairs for the Environmental Law and Policy Center, which filed the suit on behalf of several environmental groups, said the district court found the initial study to be severely wrong because everything was based on population numbers and future growth-of-the-region numbers that were not correct.

The study made assumptions about growth in the region that is entirely inconsistent with growth projections by other entities that look at those figures, Grosboll said. While INDOT has agreed to pay to fix the study, nobody knows what that fix will look like or if the fix will clear the way for a second study to proceed, he said.

"It is our position at the ELPC that this is a boondoggle project. The project should be halted and taxpayer money should be saved. What we should not be doing is continuing this project and dragging this on. It is a wasteful project not justified by the numbers in the region. It is simply a waste of money to continue," Grosboll said.

ILB: Here is the original disapproval, from June 15, 2015.

Posted by Marcia Oddi on April 30, 2016 09:23 AM
Posted to Courts in general

Ind. Decisions - Tax Court posted one Friday, April 29th

In Hamilton Southeastern Utilities, Inc. v. Indiana Department of Revenue, a 6-page opinion, a 6-page opinion, Judge Wentworth writes:

Hamilton Southeastern Utilities, Inc. challenges the Indiana Department of State Revenue’s assessment of Indiana’s utility receipts tax (URT) on connection fees it collected during the 2006, 2007, and 2008 tax years (the years at issue). This matter is currently before the Court on Hamilton Southeastern’s motion for partial summary judgment, which presents one issue: whether the amount of Hamilton Southeastern’s nontaxable connection fees is subject to URT because it was not separated from its taxable receipts on its returns. The Court finds that the amount of Hamilton Southeastern’s connection fees was separated from taxable receipts on its returns. * * *

Hamilton Southeastern’s connection fees are not subject to the URT because it has satisfied the requirements of Indiana Code § 6-2.3-3-2.

Posted by Marcia Oddi on April 30, 2016 08:52 AM
Posted to Ind. Tax Ct. Decisions

Friday, April 29, 2016

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 10 NFP memorandum decision(s))

For publication opinions today (1):

In P & P Home Services, LLC v. Review Board of the Indiana Dept. of Workforce Development and Cynthia Hutcherson, a 7-page opinion, Judge Bailey writes:

P & P Home Services, LLC (“P & P”) appeals a decision of the Review Board of the Indiana Department of Workforce Development (“Review Board”) finding P & P’s former employee, C.H., to be eligible for unemployment compensation benefits. P & P presents the sole issue of whether the Board’s decision is contrary to law. We reverse and remand to the Review Board for further proceedings. * * *

The Review Board reached its decision based upon the premise that the employment relationship at issue was one of a temporary employer and temporary employee. Finding the relationship severed as a matter of law, the Review Board did not consider whether a permanent employment relationship was voluntarily severed by the employee. Accordingly, we remand for a factual determination of whether, in light of the communications between the parties and the surrounding circumstances, C.H. voluntarily left her employment without good cause. Reversed and remanded.

NFP civil decisions today (2):

In Jennifer Farr v. New Life Associates, P.C. and Planned Parenthood of Indiana, Inc., Steven Sams (mem. dec.), a 13-page opinion, Judge Robb writes:

Jennifer Farr filed a complaint against Planned Parenthood of Indiana, Inc. (“Planned Parenthood”) alleging public disclosure of private facts, breach of physician-patient privilege, negligent infliction of emotional distress, and negligent supervision after Planned Parenthood released her medical records to the Putnam County Prosecutor’s Office pursuant to a subpoena duces tecum issued by the Putnam Superior Court. The trial court granted summary judgment in favor of Planned Parenthood. Thereafter, Planned Parenthood filed a motion for attorney’s fees, arguing Farr’s claims were “frivolous, unreasonable, or groundless” under Indiana Code section 34-52-1-1(b). The trial court granted Planned Parenthood’s motion and ordered Farr’s attorney, Steven Sams, to pay $11,145.00 in attorney’s fees.

Sams appeals the trial court’s order awarding attorney’s fees, raising two issues: (1) whether Planned Parenthood waived its claim for attorney’s fees, and (2) whether the trial court erred in concluding Farr’s claims were “frivolous, unreasonable, or groundless.” Finding no error, we affirm the trial court’s order awarding attorney’s fees to Planned Parenthood.

Roger A. Andrick v. Angela L. Andrick (mem. dec.)

NFP criminal decisions today (8):

Alvin Richard v. State of Indiana (mem. dec.)

John F. Harris v. State of Indiana (mem. dec.)

Ryan James Shelley v. State of Indiana (mem. dec.)

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

Sattore E. Cooper v. State of Indiana (mem. dec.)

Andrew Tyler Fisher v. State of Indiana (mem. dec.)

Theodore Hannibal v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on April 29, 2016 11:22 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Hon. Brent E. Dickson's Retirement Ceremony Today at 1:00 PM

Justice Dickson's Supreme Court formal retirement ceremony will take place at 1:00 PM today, Friday, April 29th. It will be webcast here.

Posted by Marcia Oddi on April 29, 2016 10:38 AM
Posted to Indiana Courts

Ind. Courts - "New Monroe circuit court judge will likely have to start out small"

A few quotes from Laura Lane's report today in the $$ Bloomington Herald-Times:

The person elected to replace retiring Monroe Circuit Court Judge E. Michael Hoff will inherit his office and courtroom, but likely not his caseload.

Small claims court may well be his or her destination.

That’s because the county’s judges together decide how the thousands of civil disputes, divorces, probate cases, small claims and infractions are divvied up among the judges of the Monroe Circuit Court’s nine divisions. Historically, newly elected Monroe Circuit Court judges start out where the least-tenured judges — Elizabeth Cure and Valeri Haughton — find themselves, focusing on small claims, infractions, ordinance violations and divorces.

It’s where judges gain experience and cut their teeth on difficult real-world situations and decision making.

There currently are four criminal courts, one juvenile court and four others that handle civil cases ranging from marriage dissolutions to landlord-tenant disputes. Before 1990, when there were six courts, caseloads were diverse and each court handled one-sixth of every kind of case filed.

Hoff’s Division I caseload is a mix of plenary civil cases, divorces and probate matters. But there’s a good chance that whoever gets elected will have a significantly different file cabinet full of cases.

The county’s nine judges meet every fall to assess and discuss caseloads and court jurisdictions. Monroe Circuit Judge Kenneth Todd’s court oversees criminal cases and has for years. He said the judges consider individual preferences and each person's experience in different areas of the law when deciding who does what.

Of the candidates for Hoff’s seat, one is steeped in criminal law and the other three have more experience on the civil-law side.

The story continues, with details from interviews of the four Democratic candidates. No Republicans have filed.

Posted by Marcia Oddi on April 29, 2016 10:26 AM
Posted to Indiana Courts

Ind. Decisions - Supreme Court denies rehearing in asbestos statute of repose law decision

In an order filed late yesterday afternoon, the Supreme Court, by a vote of 3-2, denied the petitions for rehearing in Larry Myers, et al. v. Crouse-Hinds, et al.: GE v. Mary R. Geyman, et al.: Owens-Illinois, Inc v. Mary R. Geyman, et al. The vote:

All Justices concur, except Rush, C.J., and Massa, J., who vote to grant rehearing.
David, J., concurs with separate opinion in which Dickson and Rucker, JJ., concur.
Massa, J., dissents with separate opinion in which Rush, C.J., concurs.
Massa and Rush also dissented in the original, March 2nd opinion.

From J.Massa's dissent yesterday (joined by CJ Rush):

The State’s Brief in Support of Rehearing raises issues worthy of more deliberative consideration, several of which were noted in dissents from the Court’s opinion. Myers v. Crouse-Hinds Div. of Cooper Indus., Inc., No. 49S00-1501-MI-35, 2016 WL 825111, at *6, *8 (Ind. Mar. 2, 2016) (Rush, C.J., and Massa, J., dissenting with separate opinions). The Brief overlooks, however, the most compelling precedents in its favor that should be noted sua sponte for lawyers and judges going forward.

Forty years ago, this Court unanimously and unequivocally held that the Attorney General must be served at the outset of suits attacking the constitutionality of a state statute. Sendak v. Denbro, 264 Ind. 323, 326, 343 N.E.2d 779, 781 (1976). Moreover, we made clear that the remedy for said failure of service is reversal and remand for new proceedings in the trial court where the Attorney General can meaningfully participate: * * *

Here, we are confronted with one of those “future cases” our predecessors set out to prevent. In response to the defendants’ motion for summary judgment, the plaintiffs argued the asbestos statute of repose, Ind. Code § 34-20-3-2, was unconstitutional. With that issue raised, the presiding trial courts had a statutory duty to notify our Attorney General: * * *

[much more worth reading]

A petition for rehearing is an important vehicle that gives our Court the “opportunity to correct its own omissions or errors.” Griffin v. State, 763 N.E.2d 450, 450–51 (Ind. 2002) (quoting Daviess–Martin Cnty. Rural Tel. Corp. v. Pub. Serv. Comm., 132 Ind. App. 610, 625, 175 N.E.2d 439, 440 (1961)). In my opinion, it is not just an opportunity, but our responsibility, which today we evade. For the reasons explained in my dissent in Myers, 2016 WL 825111 at *7–10, and because our precedent compels remand to allow State participation, I respectfully dissent.

From J.David's concurring opinion (joined by J.Dickson and J.Rucker)
I write separately to briefly address J. Massa’s dissent from denial of rehearing. While I appreciate Sendak’s mandate that we remand for new proceedings in the trial court where the Attorney General can meaningfully participate in the case when the Attorney General is not properly notified that a state statute is being challenged as constitutional, absent from the Sendak opinion is any mention that this Court permitted the Attorney General to brief the matter on its merits as we did in this case.
ILB: For more on the original decision, see this March 4th post, "Indiana Asbestos Exposure Repose Law Unconstitutional," and this March 30th post by Prof. Joel Schumm, headed "How Final is a 3-2 Opinion Issued Weeks Before Justice Dickson’s Retirement?" From the prescient post:
If a rehearing petition is filed in Myers, the response would be filed—and the case fully briefed and likely transmitted for a ruling—a few days before Justice Dickson’s retirement. Thus, the Court could issue a ruling before he leaves, which would presumably be a 3-2 order denying rehearing.

Posted by Marcia Oddi on April 29, 2016 09:06 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - The Six Judges Participating in the 3-Year Commercial Courts Pilot Project

The new commercial court dockets open June 1st. See this list of ILB posts for all the details.

Posted by Marcia Oddi on April 29, 2016 07:00 AM
Posted to Ind. Commercial Courts | Indiana Courts

Thursday, April 28, 2016

Ind. Decisions - Supreme Court decides a fourth case today

In Travis Allen v. State of Indiana, a 4-page, 5-0 opinion, Justice Dickson writes:

The defendant was convicted of four traffic offenses, two related to his driving while intoxicated and two related to his lack of a driver's license. His trial took place on October 8, 2014, almost three years after his arrest on December 9, 2011. This appeal asserts a single claim: that the trial court erroneously denied his Criminal Rule 4 motion for discharge for delay.

The defendant contends that he is entitled to discharge under Indiana Rule of Criminal Procedure 4(C), which provides that a defendant may not be held to answer a criminal charge for greater than one year "except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar . . . ." * * *

Therefore, whether declining to attribute delay to the defendant for failing to arrange for his transportation from Department of Correction custody and to appear for his trial scheduled for January 23, 2013, or whether attributing such failures to the defendant under Rule (C) and permitting the trial court and the State a reasonable time thereafter to bring the defendant to trial, the defendant was entitled to discharge pursuant to Indiana Criminal Rule 4(C), and his motion should have been granted.

We reverse the denial of the defendant's motion for discharge and remand to the trial court to grant the motion pursuant to Criminal Rule 4(C).

Posted by Marcia Oddi on April 28, 2016 04:51 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Public access advocates say their fears about the recent Indiana Supreme Court decision are already coming true"

Hayleigh Colombo reports this afternoon for the IBJ in a story headed "Pence argues email privacy ruling should apply to him, too." A few quotes:

Gov. Mike Pence is using a recent Indiana Supreme Court decision to argue that he should not be required to release documents that have been deemed by law to be public records.

The Indiana Supreme Court ruled April 19 that it won’t compel lawmakers to release their emails to the public, even though it said the Access to Public Records Act applies to the General Assembly. The court said the separation of powers in the Indiana Constitution means the courts should not tread on lawmakers’ turf.

Now, Pence wants that same logic applied to him. * * *

Indianapolis attorney William Groth sued Pence last year over documents relating to the Republican governor's lawsuit related to illegal immigration. Pence was seeking to overturn an executive order by President Obama that deferred removal of about 4 million illegal immigrants. Seventeen other states also sued.

Groth asked a court to decide whether Pence’s heavy redaction and denial of those records was permissible under the Indiana Access to Public Records Act.

But Pence’s lawyers said last week the court should “decline to interfere in the executive’s internal operations” as it did with the Legislature in the recent case, Citizens Action Coalition of Ind. vs Koch.

“Just as the judiciary should not ‘intermeddle’ with the legislature’s determination of what constitutes its own work product, the judiciary should also not ‘intermeddle’ with the executive’s determination of what constitutes its own work product, deliberative material, or privileged material,” according to the filing submitted by Barnes & Thornburg, which is representing the Governor’s Office.

Groth said his lawyer informed him that the lawsuit was dismissed Friday by the Marion Superior Court. He said the dismissal did not mention the Koch case, so he can’t be sure if Pence’s argument clinched the decision, but that he will likely file an appeal.

Pence’s lawyers filed their argument in the case on April 22, three days after the Supreme Court ruled in the Koch case. * * *

Public access advocates say their fears about the recent Indiana Supreme Court decision are already coming true.

Kerwin Olson, executive director of the Citizens Action Coalition, said he was worried the Supreme Court case would have negative, far-reaching implications, and this appears to be one of them.

“The Pence administration is already citing Koch as an additional authority to deny releasing government documents,” Olson said. "it’s quite astonishing and troubling. It further shuts the door to accountability and transparency in government when we should be going the opposite direction.” * * *

Steve Key, executive director of the Hoosier State Press Association, said the implications of Pence’s request are troubling.

“If the judiciary takes this position, it would eviscerate the Access to Public Records Act because every agency would argue that a judge shouldn’t judge whether a document should be released under an APRA request if the agency’s position is that the record is part of its internal operations,” Key said. “The public’s ability to hold government officials accountable would be greatly hamstrung by such a policy.”

ILB: See also this ILB post from April 26th, which at the end includes a quote from Governor Pence's Submission of Additional Authority re Groth v. Pence.

Posted by Marcia Oddi on April 28, 2016 04:20 PM
Posted to Ind. Sup.Ct. Decisions | Indiana Government

Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 14 NFP memorandum decision(s))

For publication opinions today (6):

In Susan Stewart, Personal Representative of the Estate of Joanne Hatton, deceased v. Arthur Alunday, M.D., a 19-page case, Chief Judge Vaidik writes [ILB emphasis]:

In this medical-malpractice case, the plaintiff filed a motion for judgment on the evidence claiming that Dr. Arthur Alunday, M.D., made a judicial admission during his testimony that he breached the standard of care, thereby leaving only the issues of causation and damages for the jury. Although the trial court found that Dr. Alunday judicially admitted that he breached the standard of care, the court concluded that the judicial admission was not conclusive and binding but rather should be considered and weighed as other evidence. We clarify that, contrary to a line of authority that has developed in this Court, judicial admissions—as opposed to evidentiary admissions, which can be accepted or rejected by the trier of fact—are conclusive and binding on the trier of fact. Nevertheless, considering Dr. Alunday’s trial testimony as a whole, we find that he did not unequivocally admit that he breached the standard of care. We affirm the jury’s verdict in his favor. * * *

Because of an error made in 1990 in Waugh [Waugh v. Kelly, 555 N.E.2d 857 (Ind. Ct. App.] that commingled the standards for judicial and evidentiary admissions, which has since been repeated in other cases including Weinberger [Weinberger v. Boyer, 956 N.E.2d 1095 (Ind. Ct. App. 2011), trans. denied], we now clarify that unlike evidentiary admissions, which the trier of fact may accept or reject, judicial admissions are conclusive and binding on the trier of fact.

In Alfonso M. Aguayo and William O'Connor v. City of Hammond Inspection Department , a 10-page opinion, Judge Mathias writes:
The Inspection Department of the City of Hammond filed a small claims action against Alfonso M. Aguayo in Lake Superior Court seeking to recover rental registration fees. Aguayo initially failed to respond, and the trial court entered a default judgment in favor of the City. Aguayo then hired attorney William O’Connor to represent him and seek to have the default judgment set aside. Because O’Connor had previously acted as counsel for the City, the City filed a motion to disqualify O’Connor as Aguayo’s counsel, which the trial court granted. O’Connor appeals and argues that the trial court erred in disqualifying him from serving as counsel in this and other similar cases. We reverse. * * *

The trial court’s order disqualifying O’Connor was a valid exercise of the trial court’s authority, but only to the extent it disqualified O’Connor from the case immediately before the trial court. Once the case was dismissed on motion of the City, that dismissal mooted much of the trial court’s disqualification order as pertained to that case. However, the trial court exceeded its authority to the extent that it purported to disqualify O’Connor from representing clients with interests adverse to the City in future cases. We therefore reverse that portion of the trial court’s disqualification order.

In Gerald W. Stephenson v. State of Indiana , a 10-page opinion, Judge Najam concludes:
The State has provided sufficient evidence to support Stephenson’s conviction; the trial court did not abuse its discretion in sentencing him to the maximum sentence; and Stephenson has failed to persuade us that his sentence is inappropriate in light of the nature of his crime and his character. Affirmed.
In Corey T. Weaver v. State of Indiana, an 11-page, 2-1 opinion, Judge Mathis writes:
Corey Weaver (“Weaver”) was convicted in the Hendricks Superior Court for refusing to identify himself to a law enforcement official, as required pursuant to Indiana Code section 34-28-5-3.5. Weaver appeals and argues that his conviction is not supported by sufficient evidence. We reverse and remand for proceedings consistent with this opinion. * * *

[U]nder the specific and limited facts and circumstances before us, we do not consider Weaver’s question in response to being asked for his address to constitute refusal. Indeed, his legitimate question as to whether he was being arrested approaches constitutional magnitude under the statute. Because Weaver did not refuse to provide his address, the State did not meet its burden of proving that Weaver refused to provide his name, address, and date of birth. See I.C. § 34-28-5-3.5(1). We therefore reverse Weaver’s conviction for Class C misdemeanor failure to identify.

Kirsch, J., concurs.
Altice, J., dissents with opinion. [that begins, on p. 10] Our standard of review requires us to affirm Weaver’s conviction “unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Jackson v. State, No. 48S02-1509-CR-554, slip op. at 4 (Ind.
March 2, 2016). In my opinion, the trial court reasonably determined that the
evidence in this case sufficiently established each element of the offense.
Therefore, I must dissent.

In Tyreese Taylor-Bey v. State of Indiana, a 5-page opinion with a pro se defendant, Chief Judge Vaidik writes:
Tyreese Taylor-Bey was convicted of murder. He now appeals, arguing that the trial court lacked jurisdiction based on his status as a “Moorish American National Sovereign” and “Secured Party Creditor.” Because the trial court had jurisdiction, we affirm.
In Joshua Howell v. State of Indiana, an 11-page opinion, Chief Judge Vaidik writes:
At the time of the crime in this case, burglary was generally a Class C felony bu was a Class B felony if the building or structure was a “dwelling.” The State charged Joshua Howell with Class B felony burglary for breaking into a house just hours after the sole occupant was found dead inside. We find that it is reasonable to construe “dwelling” to include buildings and structures that have been occupied in the immediate past by a recently deceased resident. This is because even after the sole occupant of a house dies, it is common and expected for people still to be at the house. To find otherwise would reduce the criminality of burglars who target houses where the sole occupant has recently died. Further, the fact that the house was ordered vacated by the county health department just hours before Howell broke in does not impact whether it was a dwelling for purposes of our burglary statute. We therefore affirm.
NFP civil decisions today (2):

W.W. and A.V. v. Indiana Department of Child Services (mem. dec.)

Danny Huynh v. Nga Pham (mem. dec.)

NFP criminal decisions today (12):

M.D. v. State of Indiana (mem. dec.)

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

Tanno Sheard v. State of Indiana (mem. dec.)

Lorenzo Adams v. State of Indiana (mem. dec.)

Brandon Foster v. State of Indiana (mem. dec.)

Alan E. Dewitt v. State of Indiana (mem. dec.)

Shandell T. Willingham v. State of Indiana (mem. dec.)

Jerry Strawser v. State of Indiana (mem. dec.)

Earl D. Napier v. State of Indiana (mem. dec.)

Darren Morgan v. State of Indiana (mem. dec.)

Gregory Reasons v. Joanne Reasons (mem. dec.)

Julius Anderson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 28, 2016 01:48 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides a third case today

In Kathy L. Siner, Personal Representative of the Estate of Geraldine A. Siner, Deceased, et al. v. Kindred Hospital Limited Partnership, d/b/a Kindred Hospital of Indianapolis, et al., a 9-page, 5-0 opinion, Chief Justice Rush writes:

To obtain summary judgment in Indiana, a moving party must demonstrate the absence of any genuine issue of material fact on at least one element of the opposing party’s claim. Conflicting affidavits regarding an element of a claim cannot satisfy this burden because they create a disputed factual issue that must be resolved at trial.

In this medical malpractice case, the defendants’ own designated evidence revealed conflicting medical opinions on the element of causation. Because these conflicting opinions create a genuine issue of material fact, summary judgment is inappropriate and would deny the plaintiffs their rightful day in court. Accordingly, we reverse the trial court’s grant of summary judgment to the defendants. * * *

In this medical malpractice case, we find that Kindred and Dr. Majid did not affirmatively negate the Siners’ claims as required to merit summary judgment. Rather, Kindred and Dr. Majid themselves created a genuine issue of material fact by designating for summary judgment Dr. Krueger’s affidavits and the conflicting medical review panel’s opinion. Because their designated evidence shows that a conflict of evidence may exist on the element of causation, summary judgment for Kindred and Dr. Majid is inappropriate. The conflicting evidence must be resolved by a trier of fact, and we therefore reverse the trial court’s grants of summary judgment to Kindred and Dr. Majid.

Posted by Marcia Oddi on April 28, 2016 01:33 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decide two today

In Leonard L. Suggs v. State of Indiana, a 7-page, 5-0 opinion, Justice Rucker writes:

The question presented is whether the sister of a brother who was once married to the defendant’s aunt is a “family or household member” within the meaning of the statute elevating misdemeanor battery to a level 6 felony. We think not. * * *

It appears to us that rather than extending the scope of “related by marriage” to an infinite configuration of marital relationships the legislature intended instead to employ the term in its commonly understood meaning namely, related by “affinity.” As applied to the facts here, we assume for the sake of discussion that Suggs’ aunt is his mother’s sister. Suggs is obviously related by blood to his mother and his mother’s sister. As for Warren, although she is related by blood to her own brother and related by affinity to her brother’s wife (the sister of Suggs’ mother), she is not related by blood or affinity to Suggs. And this is so because Suggs is the blood relative of one spouse—his mother’s sister—and Warren is the blood relative of the other spouse—her own brother. “There is no affinity between the blood relatives of one spouse and the blood relatives of the other.” 2 Wharton’s Criminal Law § 242 at 573.

In essence, the evidence is not sufficient to show that Suggs is related to Warren by marriage as the term is used in Indiana Code section 35-31.5-2-128. Accordingly, Warren is not a family or household member within the meaning of the statute elevating misdemeanor battery to a level 6 felony.

In Town of Fortville v. Certain Fortville Annexation Territory Landowners, a 5-0, 10-page opinion, Justice Rucker writes:
In this involuntary annexation case the trial court determined, after a bench trial, that a statutory requirement for annexation had not been met. Because the trial court’s judgment is not clearly erroneous, we affirm.

Posted by Marcia Oddi on April 28, 2016 11:05 AM
Posted to Ind. Sup.Ct. Decisions

Courts - "How a Vacancy on the Supreme Court Affects Cases in the 2015-16 Term"

This last updated April 15th NY Times annotated graphic shows the term's cases already decided 4-4, and shows what would be the impact of a 4-4 split in other remaining major cases.

Oddly, it also shows two cases decided before Justice Scalia's death.

Posted by Marcia Oddi on April 28, 2016 08:32 AM
Posted to Courts in general

Courts - Interesting legal fes dispute at the SCOTUS

Adam Liptak's April 25th NY Times story, headed "Copyright Case Victor Returns to Supreme Court for Legal Fees," ends:

The case, Kirtsaeng v. John Wiley & Sons, No. 15-375, opened a window on the cost of litigating a Supreme Court case. Mr. Kirtsaeng’s lawyers sought about $125,000 for their work in the lower courts and $1.9 million for their work in the Supreme Court, including, according to a brief from Wiley, “$531,085.25 for time spent soliciting and coordinating” supporting briefs “from sympathetic business groups.”

Wiley said it had spent $300,000 on its own Supreme Court case, an amount Mr. Kirtsaeng’s lawyers, in their own brief, called a “flat, bargain-basement fee its law firm charged for the firm’s own business reasons.”

Wiley’s brief also noted that Mr. Kirtsaeng “had no obligation whatsoever to pay the Supreme Court counsel who represented him even as they racked up millions of dollars in fees.”

Chief Justice John G. Roberts Jr. seemed put off by that argument.

“It seems to me that’s quite an intrusion into the relationship between the party and counsel,” he said of inquiries into fee arrangements.

Posted by Marcia Oddi on April 28, 2016 08:24 AM
Posted to Courts in general

Wednesday, April 27, 2016

Ind. Decisions - More on yesterday's 7th Circuit 2-1 opinion on Indiana sentencing appeal

Updating this ILB post from yesterday, Sentencing Law & Policy Blog has this new post headed "Intriguing intricate split Seventh Circuit panel discussing Indiana sentencing appeals and ineffective assistance of appellate counsel." Here is how it begins (ending with a teaser):

A split Seventh Circuit panel handed down an interesting habeas opinion yesterday in Miller v. Zatecky, No. 15-1869 (7th Cir. April 26, 2016) (available here). One needs to be a hard-core habeas AND state sentencing fan to be fully engrossed by all the substantive issues covered in the majority panel opinion or the dissent. Still, there is some interesting extra (law-nerd?) spice in both opinions thanks to good work by their authors --- Circuit Judge Easterbook and District Judge Lynn Adelman (sitting by designation), respectively.

What struck me as blog-worthy from Miller, especially because I spend a lot of time thinking about how to make appellate review of federal sentences efficient and effective in a post-Booker world, was this passage and footnote from the dissent about Indiana state sentencing appeals: ...

Posted by Marcia Oddi on April 27, 2016 05:02 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Some initial notes from Commercial Courts seminar this morning, including news of the Tax Court Task Force

Chief Justice Loretta Rush introduced the 3 hour CLE. She said the Supreme Court would be issuing the new commercial court rules this morning. (access the order here) She said that a Commercial Courts best practices handbook was to be expected by June 1, which is also when filings may begin in the new commercial courts.

The Chief Justice said that funding for law clerks for the new courts was not approved during the past General Assembly, but that the Court had managed to find funding of $3/4 million for the law clerks.

The Chief Justice's remarks about the reasons for the commercial court project echoed those of Indiana Chamber President and CEO Kevin Brinegar last June: "Businesses locate in states where disputes are resolved with consistency and reliability. Establishing commercial courts promotes confidence and predictability—which helps ensure the competitiveness of Indiana's business environment."

Chief Justice Rush also mentioned that the report on the Indiana Tax Court would be coming out soon. The order creating the Tax Court Task Force was issued May 15, 2015, and concludes:

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

Posted by Marcia Oddi on April 27, 2016 03:10 PM
Posted to Ind. Commercial Courts | Ind. Tax Ct. Decisions

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

For publication opinions today (4):

In Molly A. Melton v. Indiana Athletic Trainers Board, David Craig, A.T., in his official and individual capacity, Larry Leverenz, A.T., in his official and individual capacity, et al. , a 19-page opinion, Judge Brown writes:

Molly A. Melton appeals orders of the trial court granting a motion to dismiss and a motion for judgment on the pleadings in favor of the Indiana Athletic Trainers Board (the “Board”), David Craig, A.T., Larry Leverenz, A.T., Scott Lawrance, A.T., Jennifer VanSickle, John Miller, M.D., John Knote, M.D., each in their individual and official capacities, and the Indiana Professional Licensing Agency (the “IPLA”, and collectively with the Board and the other named parties, the “Appellees”). The motion was filed following the Board’s decision finding Melton in default and ordering that her Indiana athletic training license be indefinitely suspended for a period of at least seven years. Melton raises a number of issues, one of which we find dispositive and revise and restate as whether the court erred in dismissing Melton’s complaint filed under 42 U.S.C. § 1983 pursuant to Ind. Trial Rule 12(C). We reverse and remand. * * *

The Board’s entry of the Notice of Proposed Default following the September 17, 2013 hearing, in which Melton’s counsel appeared, deprived Melton of her opportunity to be heard “at a meaningful time and in a meaningful manner,” which is the fundamental requirement of due process. Mathews, 424 U.S. at 333, 96 S. Ct. at 902. Under the circumstances, we must reverse the court’s grant of the Appellees’ 12(C) Motion dismissing Melton’s Section 1983 claim, remand with instructions to vacate the Board’s Order, and order the Board to provide Melton with an administrative hearing concerning the complaint filed against her Indiana athletic training license which comports with the dictates of due process.

In Betty Thurman and Carolyn Duncan v. Kimberly L. Skinner , a 10-page opinion, Judge Baker writes:
Betty Thurman and Carolyn Duncan (the Sisters) appeal the trial court’s order on their petition to determine the heirship of their brother, Lloyd Dyer (Lloyd), who died intestate. The trial court found that Kimberly Skinner (Kimberly) is Lloyd’s daughter and is entitled to inherit as his sole heir. The Sisters argue that there is insufficient evidence supporting this conclusion. They also argue that the trial court erred by denying their motion for Kimberly to undergo a DNA test to establish (or refute) her claim that Lloyd was her father. Finding sufficient evidence and finding no other error, we affirm. * * *

We find that the evidence in the record readily supports the trial court’s conclusion that Lloyd acknowledged Kimberly as his child. We decline the Sisters’ requests to reweigh the evidence and assess witness credibility. We affirm the trial court’s conclusion that Kimberly is entitled to inherit from Lloyd as though he and Linda were married at the time of Kimberly’s birth. * * *

In this case, the Sisters are not seeking to establish paternity. The purpose for which they seek genetic testing—to determine heirship—is not a valid reason to request genetic testing. Moreover, the results of any genetic or blood test would be irrelevant to the trial court’s ultimate determination under Indiana Code section 29-1-2-7(b). Consequently, we find no error in the trial court’s denial of the motion for genetic testing.

In Andrew Shotts v. State of Indiana, a 24-page opinion, Judge Baker writes:
Andrew Shotts appeals his conviction and sentence for Unlawful Possession of a Firearm by a Serious Violent Felon, a Class B Felony. Shotts argues that he was seized in violation of the Fourth Amendment to the United States Constitution and that evidence obtained as a result of this seizure should not have been admitted at trial. Finding that Shotts’s seizure was authorized pursuant to the United States Supreme Court’s decision in Michigan v. Summers, 452 U.S. 692 (1981), we find no error in the trial court’s refusal to exclude evidence obtained as a result of the seizure. We also find that the trial court did not err in sentencing Shotts and that his sentence is not inappropriate. Accordingly, we affirm the trial court and remand for the limited purpose of vacating Shotts’s conviction and sentence for Visiting a Common Nuisance, a Class B misdemeanor, as the charge had been dismissed before trial.
In Christopher Cowans v. State of Indiana, a 12-page opinion, Judge Baker writes:
Christopher Cowans appeals his conviction for Level 6 Felony Resisting Law Enforcement. He argues that the trial court abused its discretion when it refused his tendered instruction on mistake of fact. Finding that Cowans’s belief is better characterized as a mistake of law than of fact, we affirm. [Interesting discussion re "fleeing" to avoid arrest.]
NFP civil decisions today (0):

NFP criminal decisions today (2):

Hubert Wheat v. State of Indiana (mem. dec.)

Jariel Patterson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 27, 2016 01:15 PM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Interim Commercial Courts Rules issued

The Supreme Court today issued an 11-page order adopting Interim Commercial Court Rules for the Indiana Commercial Courts Pilot Project.

The ILB this morning attended a seminar on the new commercial court pilot program and is planning to post much more information on this important new project; the new commercial courts' dockets will be open June 1st.

Posted by Marcia Oddi on April 27, 2016 01:04 PM
Posted to Ind. Commercial Courts

Ind. Decisions - Supreme Court decides one today, re a belated Notice of Appeal

In Ronald L. Sanford v. State of Indiana, a per curiam, 3-page, 5-0 opinion, the Court writes:

The plea agreement left sentencing to the discretion of the trial court, and in 1989, when Sanford was fifteen, the court sentenced Sanford to an aggregate term of 170 years in the Department of Correction. The trial court never advised him that he had the right to appeal his sentence.

Beginning in 1991, Sanford attempted to obtain his trial court transcripts to prepare a petition for post-conviction relief. Over the next four and a half years, all six of Sanford’s requests for transcripts were denied. After these repeated denials, Sanford felt he had reached a dead end. Then, beginning in 2004, Sanford again began seeking copies of his transcripts and other case filings. His motion requesting transcripts was denied by the trial court. His public records request to the Marion County Clerk’s Office could not be fulfilled because the original case file and the microfilm were missing from the clerk’s records. * * *

In February 2015, Sanford, by counsel, filed a petition for permission to file a belated Notice of Appeal under Indiana Post-Conviction Rule 2. The trial court held Sanford’s PCR petition in abeyance, and in April 2015, held a hearing on his Post-Conviction Rule 2 petition. The trial court denied Sanford’s petition and the Court of Appeals affirmed. Sanford v. State, --- N.E.3d ---, 2016 WL 359283 (Ind. Ct. App. Jan. 29, 2016). Sanford now asks this Court to grant transfer and permit him to file a belated Notice of Appeal to appeal his sentence.

A court will grant a defendant permission to file a belated Notice of Appeal under Post-Conviction Rule 2 if the defendant’s failure to file a timely Notice of Appeal was not his or her fault, and if the defendant has been diligent in requesting permission to file a belated Notice of Appeal under the Rule. Under the unique circumstances of this case, we find that Sanford should be permitted to file a belated Notice of Appeal. Accordingly, we grant transfer, reverse the judgment of the trial court, and remand with instructions to grant Sanford’s Post-Conviction Rule 2 petition. In all other respects we summarily affirm the Court of Appeals’ decision. See Ind. Appellate Rule 58(A)(2).

Posted by Marcia Oddi on April 27, 2016 12:53 PM
Posted to Ind. Sup.Ct. Decisions

Tuesday, April 26, 2016

Ind. Decisions - 7th Circuit issues 2-1 opinion today

In Michael Miller v. Sup. of Pendleton Corr. Fac. (SD Ind., Barker), a 25-page, 2-1 opinion, Judge Easterbrook writes:

Michael Miller was convicted in Indiana of three counts of child molestation and sentenced to three consecutive 40-year terms. The sexual abuse, including anal intercourse, began when the victim was nine and continued for six years. When imposing the lengthy term (effectively life in prison), the state judge relied not only on the nature of Miller’s conduct but also on his four prior convictions, his failure to reform after stretches of imprisonment, and the absence of any mitigating factors.

The convictions were affirmed on direct appeal, see Miller v. State, No. 34A02-0307-CR-563 (Ind. App. June 8, 2004). Miller then filed a collateral attack, contending that his appellate lawyer furnished ineffective assistance by failing to contest the length of his sentence.* * * The state’s court of appeals eventually concluded that appellate counsel should have raised this issue, but that its omission did not result in prejudice under the standard of Strickland v. Washington, 466 U.S. 668, 694–96 (1984), and equivalent state decisions, which ask whether the petitioner has demonstrated a “reasonable probability” that the outcome of the direct appeal would have been different.

The court observed that the substantive standard for appellate review in Indiana is whether the sentence is “inappropriate in light of the nature of the offense and the character of the offender.” Ind. App. R. 7(B). (Miller does not contend that his sentence violates the Cruel and Unusual Punishments Clause or any other rule of federal law.) After reviewing the evidence, the appellate court held “that Miller has not established that his 120-year aggregate sentence is inappropriate in light of the nature of the offense and the character of the offender.” Miller v. State, 2013 Ind. App. Unpub. LEXIS 377 (Mar. 16, 2013) at *19. [sic. The ILB located this NFP opinion here, it was filed Mar. 26, 2013]

This means that, if Miller’s appellate lawyer had contested the sentence, the argument would have failed on the merits. Because, in the state court’s view, the chance of success was zero, it necessarily followed that Miller had not shown a “reasonable probability” that a better appellate lawyer could have obtained a lower sentence for him. A federal district judge then denied Miller’s petition for a writ of habeas corpus under 28 U.S.C. §2254. Miller v. Zatecky, No. 1:13-cv-913- SEB-TAB (S.D. Ind. Mar. 26, 2015).

Because Indiana addressed on the merits the question whether Miller has established prejudice, we must decide whether the state’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”. 28 U.S.C. §2254(d)(1). * * *

Miller has not shown that the state judiciary made an error of federal law, so he is not entitled to collateral relief. AFFIRMED

ADELMAN, District Judge [ED Wis., sitting by designation], dissenting. [beginning at p. 9 of 25] Because appellate counsel provided ineffective assistance by failing to challenge Michael Miller’s 120-year prison sentence, I would conditionally grant the writ. The majority concludes that Miller fails to show that the state judiciary made any error of federal law in rejecting this claim. For the reasons that follow, I respectfully dissent.

Posted by Marcia Oddi on April 26, 2016 08:32 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Will the non-justiciability rationale of CAC v. Koch be applied equally to the executive branch, further limiting APRA?

Here is a quote from Megan Banta's $$ April 18th story in the Bloomington Herald-Times on the CAC v. Ind. House Caucus oral argument:

Before they address the question of balancing the public’s right to know with legislative duties and what exactly is subject to the public records law, though, the justices must first determine if they even are able to make a ruling in the case, period.

The Indiana Supreme Court long has ruled that the judicial branch can’t interfere with legislative procedures under the Constitution’s separation of powers clause.

Geoffrey Slaughter, who represents the House Republican caucus, argued that precedent applies in this case. And he argued that it stretches further, as well, to cover every other constitutional office in the state, from governor to statewide elected officials to prosecuting attorneys, when they are performing their core function.

Justice Mark Massa said that essentially would limit the law to administrative offices and the bureaucracy and seemed to favor a ruling not on constitutional grounds, something he said “would do less damage to the APRA.”

And [the CAC's attorney William] Groth expressed concerns with taking the separation of powers clause that far, as well.

He said he feared it could be applied to other constitutional offices.“I don’t know where it stops,” Groth said.

Groth asked the court to find that the judicial branch can rule in this circumstance without it being an interference and to send the case back down to the lower court.

Groth raised this caution in his opening brief, as well as the rely brief. From pages 24-25 of the CAC's opening brief:
Fourth, any concerns about the release of communications from individual members of the public would apply equally to communications to the executive branch, but that would not justify the wholesale exemption of the executive branch from its APRA obligations. Thus, to hold this case nonjusticiable because it involves the legislative branch of government would call into question whether APRA claims involving the executive branch of government are also nonjusticiable.
And from the CAC reply, fn 4 at p. 11:
These are no reasons these same concerns would not equally apply to lobbyist or constituent communications with legislative bodies other than the General Assembly, such as city and county councils, as well as to Executive Branch communications, but the Caucus chooses selectively to focus solely on communications with its own members.
As the Herald-Times story pointed out, the justices raised concerns about justicability and its potential ramifications during oral argument. [the ILB is hoping later to insert timeline locators]

In their 4-1 April 19th opinion, the Court's majority stated:

However, we find non-justiciable the question of whether the documents requested in this case are exempt from disclosure under APRA’s work product exception, Indiana Code section 5-14-3-4(b)(14). Accordingly, under Indiana Trial Rule 12(B)(6), we affirm the trial court’s dismissal.
Justice Rucker, writing in dissent, said:
The majority’s ruling is not only premature, but it unfortunately weighs in on a significant separation of powers issue without an adequate record. I would refrain from so doing and instead remand this matter to the trial court for further proceedings.
This week, in an APRA case against Governor Pence in which attorney Groth is the plaintiff, Governor Pence is now asserting a nonjusticiability defense based on CAC v. Koch. Some quotes from an April 22nd document, Governor Pence's Submission of Additional Authority, in Groth v. Pence, a case in Marion Superior Court:
The Court thus held [in CAC v. Koch] that "determining whether the documents requested by Plaintiffs are excepted under APRA as legislative work product is a non-justiciable question."

This case presents the same non-justiciable question because it asks this Court to determine whether the documents requested by Mr. Groth directly from Governor Pence are excepted under APRA as work product, deliberative material, or attorney-client privileged material. Indeed, this case involves, in part, different subsections of the very statute at issue in Koch. See Ind. Code 5-14-3-4(b)(2), (6), (10).1 Just as the judiciary should not "intermeddle" with the legislature's determination of what constitutes its own work product, the judiciary should also not "intermeddle" with the executive's determination of what constitutes its own work product, deliberative material, or privileged material. The Koch plaintiffs sent their request directly to Representative Koch; here, Mr. Groth sent his request directly to the Governor. Complaint, Exhibit A. The requests to Representative Koch were denied based on exceptions to APRA, among other reasons, just as Governor Pence denied Mr. Groth' s requests based on exceptions to APRA. Mr. Groth now asks this Court to review Governor Pence's determinations, just as the Koch plaintiffs did. In Koch, the Indiana Supreme Court declined to engage in this review because it constituted interference in the internal operations of another branch of government. This Court should likewise decline to interfere in the Executive's internal operations under Koch.

Posted by Marcia Oddi on April 26, 2016 08:18 PM
Posted to Indiana Courts | Indiana Government

Ind. Decisions - Another Supreme Court opinion today

In In the Matter of the Term. of the Parent-Child Relationship of: N.G., L.C., & M.C. (Minor Children), and A.C. and J.G. (Their Parents) A.C. (Mother) v. Ind. Dept. of Child Services (mem. dec.), an 8-page, 5-0 opinion, Justice Dickson writes:

This is an appeal by a mother whose parental rights were terminated as to three of her four children. We affirm the trial court. * * *

The mother's appeal identifies three claims: (1) the trial court findings are not supported by the evidence; (2) the trial court judgment terminating the mother's parental rights and finding such action was in the best interest of the children is not supported by sufficient clear and convincing evidence; and (3) the trial court clearly erred when it failed to dismiss the petitions for termination of parental rights due to the concealment of recordings of counselling sessions in violation of the mother's due process rights. * * *

We conclude that there is probative evidence from which a reasonable fact-finder could have found findings #36 and #37 proven by clear and convincing evidence, and thus such findings are supported by sufficient evidence. * * *

We hold that a reasonable finder of fact could conclude based on clear and convincing evidence both (a) there is a reasonable probability that the conditions that resulted in the children's removal or the reasons for placement outside the home of the parents will not be remedied, and (b) the termination is in the best interests of the children. * * *

The mother's third appellate claim is that the trial court violated her due process rights by failing to dismiss the petition for termination of parental rights when evidence was presented that the DCS knew or should have known that the therapy sessions for L.C. and M.C. were vide-otaped, but failed to provide the videotapes when a subpoena was issued for them. Appellant's Br. at 9. We find that the mother has procedurally defaulted this claim on appeal by not making an objection in the trial court herself and by not joining the father's oral motion in the trial court. Furthermore, when the court asked how the parties were "doing with respect to the counseling videotapes," the mother's attorney answered, "[t]he matter is resolved, Your Honor." Tr. at 506. The mother's due process claim is thus waived. Furthermore, a party on appeal may waive a constitutional claim, including a claimed violation of due process rights, by raising it for the first time on appeal. McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). We decline to consider the mother's claim of due process violation.

We affirm the judgments of the trial court terminating the parental relationships of the parents, A.C. and J.G., with their children, N.G., L.C., and M.C.

Posted by Marcia Oddi on April 26, 2016 02:36 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 12 NFP memorandum decision(s))

For publication opinions today (3):

In Marion County Election Board and Marion County Board of Voter Registration v. Gregory Bowes, Mark King, Paul Ogden, Zach Mullholland, and Brian Cooper, a 14-page opinion, Judge Pyle writes:

Appellants/Defendants, the Marion County Board of Voter Registration (“MCVR”) and Marion County Election Board (“MCEB”), appeal the trial court’s award of attorney fees to Appellee/Plaintiff, Gregory Bowes (“Bowes”), an attorney who litigated a claim pro se under the Indiana Access to Public Records Act (“APRA”). Bowes also cross-appeals. At trial, the trial court concluded that Bowes could not recover attorney fees under APRA for his successful APRA claim because he had litigated the claim pro se. Nevertheless, the trial court awarded Bowes “expenses of litigation” reflecting an hourly rate for the amount of hours he had spent litigating his claim to compensate him for his lost opportunities and employment as an attorney.

On appeal, the MCVR argues that the trial court’s litigation expenses award was essentially an improper award of attorney fees and, alternatively, that the trial court erred in allowing Bowes to recover litigation expenses for his lost opportunities and employment. On cross-appeal, Bowes argues that the trial court erred in denying his request for attorney fees and abused its discretion in determining the amount of his litigation expenses. Because we conclude that Bowes was not entitled to recover attorney fees under APRA as a pro se attorney or litigation expenses for missed work and other opportunities for employment, we reverse the trial court’s decision. We remand with instructions for the trial court to vacate Bowes’ prior award of litigation expenses and to enter an award of $975.14 for his remaining court costs and litigation expenses.

In Richard Scott Lambert v. Michael Shipman and Kent Abernathy, a 12-page opinion, Judge Altice writes:
Richard Lambert appeals the denial of his verified petition seeking rescission of a lifetime suspension of his driving privileges. Lambert presents two issues for our review, which we restate as: 1. Does a trial court have authority to deny a petition for rescission of a lifetime suspension of driving privileges brought under Ind. Code § 9-30-10-14.1? 2. Did the trial court err in denying Lambert’s petition? * * *

Moreover, as noted above, the trial court, in concluding that not enough time had passed, indicated that it was persuaded more by the fact that Lambert had accumulated three lifetime suspensions and that after each suspension, he chose to ignore court orders that he not drive. The significance the trial court put on Lambert’s history was a matter within its discretion and supported its determination that rescission of Lambert’s lifetime suspension was not in the best interests of society and that his lifetime suspension was not unreasonable. Based on the foregoing, we conclude that the trial court did not err in denying Lambert’s petition for rescission of the lifetime suspension of his driving privileges. We affirm.

In Christopher C. Norris v. State of Indiana , a 25-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that J.B. was unavailable to testify as a protected person pursuant to I.C. § 35-37-4-6(e)(2)(B)(i); the trial court properly admitted the videotaped interview of J.B. at trial, together with the testimony of three other witnesses; the trial court committed harmless error by admitting vouching testimony; and there was no drumbeat repetition of J.B.’s allegations by different witnesses. Affirmed.
NFP civil decisions today (4):

In the Term. of the Parent-Child Relationship of: I.C. (Minor Child) and J.C. (Mother) v. The Ind. Dept. of Child Services (mem. dec)

In the Matter of the Term. of the Parent-Child Relationship of: R.H., C.H., and M.H., K.G. (Mother) v. Ind. Dept. of Child Services (mem. dec.)

In re the Guardianship of K.K.L., C.T.L., Q.C.L., and A.S.L. (minor children), Dorothy Denise Carroll (mem. dec.)

James Chaplin v. J.S. (mem. dec.)

NFP criminal decisions today (8):

Joshua H. Field v. State of Indiana (mem. dec.)

Bryan N. Myers v. State of Indiana (mem. dec.)

Lavonte A. Wilderness v. State of Indiana (mem. dec.)

Franklin e. Heathscott v. State of Indiana (mem. dec.)

Jenneil Jackson v. State of Indiana (mem. dec.)

Philip A. Garrett v. State of Indiana (mem. dec.)

Joseph Hale v. State of Indiana (mem. dec.)

Deryk Hutton v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 26, 2016 11:54 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In William Bowman v. State of Indiana, a 12-page, 5-0 opinion, Justice Massa writes:

William Bowman was convicted after a jury trial of Class A Felony Dealing in a Narcotic Drug within 1,000 Feet of School Property and of being a Habitual Substance Offender. Bowman raises five contentions on appeal: (1) he was a victim of “sentencing factor manipulation” at the hands of the Connersville Police Department and its confidential informant, Ciji Angel; (2) the jury verdict may not have been unanimous, in that two baggies were introduced into evidence to support a single charge of dealing in heroin; (3) certain letters he wrote to potential witnesses from prison should not have been admitted; (4) there was insufficient evidence to support the conviction; and (5) his sentence of forty years for felony dealing was inappropriate. We find none of Bowman’s contentions merit reversal, and thus affirm.

Posted by Marcia Oddi on April 26, 2016 11:44 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Munster passes human rights ordinance

From the April 25th NWI Times:

The new ordinance, modeled on a similar law passed in Carmel, Indiana, prohibits discrimination against anyone on the basis of race, sexual orientation, disability or gender identity, making it illegal to obstruct someone from entering a business, entering into a contract, obtaining and maintaining employment or participating in any type of program or service available to the general public based on the classifications cited. Religious worship, clergy while engaged in religious activities, nonprofit clubs organized exclusively for religious purposes and private gatherings not open to the public would be excluded from the ordinance.

Posted by Marcia Oddi on April 26, 2016 10:31 AM
Posted to Indiana Government

Ind. Courts - Hon. Brent E. Dickson's Retirement Ceremony

Justice Dickson's Supreme Court formal retirement ceremony will take place at 1:00PM this Friday, April 29th. It will be webcast here.

Posted by Marcia Oddi on April 26, 2016 09:41 AM
Posted to Indiana Courts

Ind. Decisions - "A devastating blow to public's right to know" - three editorials [now 4]

That is the heading to the South Bend Tribune's editorial today about the Supreme Court's April 19th ruling in CAC v. Koch. Some quotes:

A ruling by Indiana’s highest court allows lawmakers to keep the people’s business shrouded in secrecy.

The state Supreme Court’s decision earlier this month means legislators can continue to withhold their communications with lobbying groups and businesses.

The decision comes in a taxpayer-funded lawsuit filed by Citizens Action Coalition, Common Cause of Indiana and Energy and Policy Institute. The nonprofit groups are seeking emails between Rep. Eric Koch, R-Bedford, and utility companies regarding his solar power bill. The House had denied an open records request for the correspondence, saying the General Assembly is exempt from the Indiana Access to Public Records Act.

In its ruling, the court said that the legislature is covered by the state’s public record law, but that ordering the release of the correspondence violates the state constitution’s separation of powers between the legislative and judicial branches of government.

Legislative leaders have maintained that withholding emails is necessary to protect the privacy of correspondence between lawmakers and their constituents. The groups seeking the release of the emails argued that the public is entitled to know about the communications between interest groups and legislators.

The court ruling said the General Assembly has the discretion to determine what qualifies as the work product of legislators and their staff members.

Recent history suggests otherwise. Instead of being judicious in deciding what documents to withhold and what to release, the House has defined “work product” as basically everything, shielding all from the public in whose interests members are trusted to act. And their concerns about the privacy of constituents who communicate with them could be addressed by finding a way to protect sensitive, private information while still adhering to the law’s goal of openness.

Other recent editorials take a similar position. From a Muncie Star-Press editorial of April 23, headed "Your right to know thwarted again." Some quotes:
Lost in the frenzy last week over Donald Trump's campaign stop in Indianapolis was this: The Indiana Supreme Court made it more difficult for Hoosiers to know what lawmakers are doing.

Or, put another way, the cozy relationship between lawmakers and lobbyists was preserved. How so? The court ruled lawmakers can continue withholding email correspondence with lobbying groups and businesses from the public.

We believe Indiana lawmakers ought to put accountability and transparency above lobbyists and enact rules to allow for the release of emails. But that's asking too much of them, unfortunately. * * *

Emails can be an important source of information that affects public policy. It was email that brought to light former Superintendent of Public Instruction Tony Bennett's efforts to change Christel House Academy's charter school letter grade from a "C" to an "A."

We believe if emails were made public, the state would have lawmakers serving in the Statehouse who keep lobbyists at arm's length. We believe that would make for better lawmakers. And that's something all of us deserve.

And strong words from the Indianapolis Business Journal, in an April 23rd editorial headed "High court sides with secrecy in legislator email case." Some quotes:
The Indiana Supreme Court took a timid and legally dubious course on April 19 when it ruled that Indiana lawmakers can continue withholding their correspondence with lobbying groups and businesses.

The ultimate losers from the decision were the people of Indiana, who stand to benefit from an open and transparent government. It’s a concept that is a bedrock of our nation. As our second president, John Adams, put it: “Liberty cannot be preserved without a general knowledge among the people, who have a right and a desire to know.”

Beyond that, secrecy can foster corruption—especially in a state like Indiana with a part-time Legislature. Indiana’s 100 House members and 50 senators have a wide range of other jobs, creating abundant opportunities for conflicts of interests. * * *

The high court [found] the APRA does apply to the General Assembly. But rather than taking the next logical step—concluding the Koch correspondence must be made public—it backed away, citing a 1993 opinion on the separation of powers that concluded the high court “should not intermeddle with the internal functions of either the executive or legislative branches of government.”

Following that reasoning, Justice Steven David, writing for the majority, took a pass on the particulars of the Koch case. “Because the issue before the court would require invasion into a core function of the legislative branch, this court declines to exercise its jurisdiction,” he said.

Taking a stand on such an important case would not have struck us as meddling. After all, it is the role of the judicial branch to interpret the meaning of laws, apply laws to individual cases, and decide if they violate the Constitution. * * *

“To protect communications with lobbyists outside the Statehouse is absolutely absurd,” Kerwin Olson, executive director of the Citizens Action Coalition, told The Associated Press after the decision.

We share his dismay, as should all Hoosiers who care about open government.

[Updated 4/28/16] Here is another editorial, from the April 27th Fort Wayne Journal Gazette, headed "Public loses as lawmakers gain records shield."

Posted by Marcia Oddi on April 26, 2016 09:10 AM
Posted to Ind. Sup.Ct. Decisions | Indiana Government

Monday, April 25, 2016

Ind. Decisions - 7th Circuit decided two Indiana cases late today, one a reversal

In Angel Houston v. C.G. Security Services, Inc. (SD Ind., Lawrence), an 8-page opinion, Judge Flaum writes:

This appeal arises out of a lawsuit brought by plaintiff‐appellee Angel Houston, who sustained injuries from a fall during a New Year’s Eve party at a Hyatt hotel in Indianapolis. Defendant‐appellant C.G. Security Services, Inc. (“C.G.”) provided security personnel for the party. During litigation, Houston filed several motions for sanctions against C.G. The district court referred the matter to a magistrate judge, who issued a report and recommendation regarding sanctions against C.G. for discovery violations. The district court adopted the magistrate judge’s report and recommendation to impose sanctions.

C.G. appeals. Specifically, C.G. claims that the district court abused its discretion by adopting the report and recommendation, as well as by awarding Houston’s counsel attorney’s fees. We conclude that there was no abuse of discretion and affirm the judgment of the district court.

In Brian Herron v. Douglas Meyer (SD Ind., Magnus-Stinson), a prisoner appeal, Judge Easterbrook writes:

In this Bivens suit, Brian Herron, a disabled federal prisoner, accuses guard Douglas Meyer of transferring him to a cell that the guard knew was likely to cause him injury. Meyer did this, Herron alleges, because he disliked the fact that Herron had filed grievances and had refused to share a cell with an inmate who he thought endangered him. Herron maintains that Meyer violated the First and Eighth Amendments. The district court dismissed the First Amendment theory and held that the guard is entitled to qualified immunity on the Eighth Amendment theory. 2014 U.S. Dist. LEXIS 20865 (S.D. Ind. Feb. 20, 2014) at *7–9 (First Amendment); 2015 U.S. Dist. LEXIS 28263 (S.D. Ind. Mar. 9, 2015) (Eighth Amendment). * * *

If Meyer set out to punish Herron for his grievances, then a price has been attached to speech. The district court thought otherwise in part because Herron had not attached his grievances to the complaint, but that was not necessary; a complaint narrates a claim and need not supply the proof. That comes later. Pratt v. Tarr, 464 F.3d 730, 732–33 (7th Cir. 2006). And if, as we doubt, an amendment to the complaint was required, the district court should have allowed it rather than dismissing the claim. See, e.g., Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510, 519–23 (7th Cir. 2015).

Whether a penalty has been attached to protected speech is potentially more difficult. Many decisions assume that essentially everything a prisoner says in the grievance sys tem—if not everything a prisoner says to a guard—is pro tected by the First Amendment. See, e.g., DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000); Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir. 2006). These decisions do not discuss a par allel line of cases about grievances that public workers make about the conditions of their employment. That line of cases attempts to distinguish statements on topics of public im portance (protected) from personal gripes (unprotected) and statements that disrupt the workplace (also unprotected). Compare Connick v. Myers, 461 U.S. 138 (1983), with Rankin v. McPherson, 483 U.S. 378 (1987); see Pickering v. Board of Ed ucation, 391 U.S. 563 (1968). The decisions in the prison-­‐‑ grievance line do not explain why the First Amendment of-­‐‑ fers greater protection to prisoners than to public employees. We do not get into that here, because the subject has not been addressed in the briefs. It is enough to flag the subject as worth attention, either in some future litigation or in this case if, contrary to our expectations, the First Amendment theory turns out to matter.

The judgment of the district court is vacated, and the case is remanded for further proceedings consistent with this opinion.

Posted by Marcia Oddi on April 25, 2016 07:41 PM
Posted to Ind. (7th Cir.) Decisions

Courts - "Illinois, Indiana join in funding move to keep Illiana Expressway alive"

Updating a long list of ILB posts on the proposed, and controversial, Illiana Expressway, Crain's Chicago Business has an interesting story by Greg Hinz that begins:

In the latest sign that the proposed Illiana Expressway still has a heart beat, Illinois and Indiana appear to have reached a deal under which the latter will provide the cash needed for a key revamped environmental review of the controversial toll road.

A document filed in U.S. District Court here today [the Crain article links to the Illiana Document], the Indiana Department of Transportation says it has "agreed to fund the technical work needed to comply" with changes in the the Environmental Impact Statement (EIS) ordered by the court. That means that the Illinois Department of Transportation, whose funding has been limited by this state's continuing budget stalemate, will not have to come with money despite what the filing describes as "funding issues presented by IDOT."

The filing indicates that repairs on the rejected EIS could be completed by the end of July.

See earlier ILB posts on the initial disapproval from June 17, 2015 and Sept. 23rd.

Posted by Marcia Oddi on April 25, 2016 05:57 PM
Posted to Courts in general

Ind. Gov't. - New Interface for Secretary of State Business Search

The Indiana Secretary of State has a new interface for business and corporation searches and documents. A reader writes:

It's much better! You can actually pull up a PDF of articles of organization and such, whereas before you could view, but not print those documents.

This should make it a lot easier for attorneys to find corporate information when looking for the proper entity to sue or name in actions.

Access it here.

Posted by Marcia Oddi on April 25, 2016 04:12 PM
Posted to Indiana Government

Ind. Decisions - Supreme Court decided one late Friday, posted today

In Adam Gaff v. Indiana-Purdue University of Fort Wayne, a 5-page, 5-0 opinion, Justice Dickson writes:

The plaintiff, Adam Gaff, appeals from the grant of summary judgment sought by his former employer, defendant Indiana-Purdue University of Fort Wayne (IPFW), in this employment termination discrimination case. We grant transfer to clarify the application of Indiana summary judgment jurisprudence to such cases. [ILB emphasis]

As consolidated by the Court of Appeals, the plaintiff's appeal presents claims alleging that the trial court erroneously granted summary judgment as to the plaintiff's federal and state constitutional claims and as to the plaintiff's retaliation claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Gaff v. Indiana-Purdue Univ. of Fort Wayne, 45 N.E.3d 458, 460 (Ind. Ct. App. 2015). With respect to the federal and state constitutional claims, we summarily affirm the decision of the Court of Appeals.

In affirming the summary judgment on the retaliation claim, however, the Court of Appeals noted language from Indiana Civil Rights Commission v. Culver Educational Foundation, wherein we stated that "the ultimate burden of persuasion that the defendant engaged in unlawful discrimination remains at all times with the plaintiff." 535 N.E.2d 112, 115 (Ind. 1989). The Court of Appeals in Gaff acknowledged that "IPFW is the party who moved for summary judgment," but nevertheless applied Culver Educational—which was not a summary judgment case—to hold that "the initial burden is still on Gaff to prove a prima facie case of retaliation." Gaff, 45 N.E.3d at 465. The Court of Appeals ventured that "Indiana's 'heightened' summary judgment standard, discussed in Hughley v. State, 15 N.E.2d 1000, 1003 (Ind. 2014), under which the moving party must negate an opponent's claim, does not apply to a Title VII claim." Gaff, 45 N.E.3d at 465 n.9. We disagree. * * *

As we recently emphasized in Hughley, "[e]ven though Indiana Trial Rule 56 is nearly identical to Federal Rule of Civil Procedure 56, we have long recognized that Indiana's summary judgment procedure . . . diverges from federal summary judgment practice. In particular, while federal practice permits the moving party to merely show that the party carrying the burden of proof lacks evidence on a necessary element, we impose a more onerous burden: to affirmatively negate an opponent's claim." * * *

We affirm the grant of summary judgment as to the plaintiff's retaliation claim under Ti-tle VII of the Civil Rights Act of 1964, and we summarily affirm the Court of Appeals as to all other issues. This cause is remanded to the trial court for further proceedings consistent with this opinion.

Posted by Marcia Oddi on April 25, 2016 11:27 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 3 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (2):

Edward Zaragoza v. Shella Zaragoza (mem. dec.)

Malcolm Williams v. Marion Thatcher (mem.dec.)

NFP criminal decisions today (1):

Kelly E. Culver v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 25, 2016 11:22 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Paul Henry Gingerich, sentenced as adult at 12, has hearing upon turning 18

Updating this most recent Gingerich post, from Feb. 4, 2014, From that story:

Gingerich currently is being held at the Pendleton Juvenile Correctional Facility.

[Gingerich's attorney Monica] Foster and prosecutor Daniel Hampton disagreed on how long Gingerich will have to remain in a juvenile facility. Foster said he could be placed in a residential facility as early as this summer [i.e. 2014] after receiving his high school degree, while Hampton said the earliest that could happen is after he turns 18.

As reported by Cincinnati's WLWT5 on April 23rd:
Paul Henry Gingerich turned 18 in February, and under a state law that bears his name, a judge can now consider three alternative sentencing options, including Gingerich's release. The judge could also transfer him to adult prison to serve the remainder of his 25-year sentence or place him on probation, home detention or work release.

Gingerich was believed to be the youngest person in Indiana to be sentenced as an adult. His case sparked an outcry that led to legislation known as "Paul's Law," which allows alternative sentences for juveniles who commit serious crimes.

Gingerich appeared Friday in a Kosciusko County courtroom for a hearing on those options, the Indianapolis Star reported. Gingerich's attorney, Monica Foster, is asking for probation or home detention. A decision is likely by summer.

"There is simply no legitimate penological purpose to be served by committing Paul Gingerich to further incarceration," Foster wrote in court records. "Indeed, to commit Paul Gingerich to an adult prison would run a very real risk of destroying the progress that has undeniably been made by this young man."

From Kristine Guerra's long April 23rd story in the Indianapolis Star:
During the hourlong hearing Friday, Kosciusko County Prosecutor Dan Hampton called the lead investigator on the case, John Tyler of the Kosciusko County Sheriff's Department, to the stand. Tyler recalled details of the crime, as well as what happened before and after Danner was killed.

Foster objected to Tyler testifying, saying the hearing was not about the crime but about Gingerich's progress in the juvenile system. Hampton argued that the court must know the "type of behavior that the juvenile facility has to address." The judge, James Heuer from neighboring Whitley County, allowed Tyler to testify.

After hearing testimony, Heuer must now decide where Gingerich will spend the next several years of his life. Gingerich could walk out a free man, but he also could be sent to adult prison for the remainder of his 25-year sentence, cut in half by credit for good behavior.

Because Gingerich wants to live with his mother in Fort Wayne if he is released, Heuer asked the defense attorney for information about programs in Allen County that Gingerich would be eligible for. He also asked the prosecution to determine Gingerich's eligibility for correction department programs.

Heuer said Gingerich's progress was "impressive." But he also said he cannot turn his back on the victim's family, some of whom attended the hearing.

"I do want to know what's out there in terms of alternatives," Heuer said.

Posted by Marcia Oddi on April 25, 2016 10:53 AM
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Transfer list for week ending April 22, 2016 [Updated]

Here is the Clerk's transfer list for the week ending Friday, April 22, 2016. It is one page (and 13 cases) long.

One transfer was granted last week:

  • Adam Gaff v. Indiana-Purdue University of Fort Wayne - this was an Oct. 26, 2015 COA opinion. A quote from para.#20:
    And, finally, Gaff’s July 2012 oral reports to his supervisor regarding Itt’s derogatory comments did not involve discrimination against a protected class. That is, Gaff was not complaining about derogatory comments related to his race, color, religion, sex, or national origin; rather, he complained that Itt made derogatory comments about his weight and sexual orientation, neither of which involve protected classes under Title VII.
[Updated at 11:38 AM] As it turns out, this case was transferred with opinion late on Friday, April 22; here is the ILB summary of the Gaff opinion.

Posted by Marcia Oddi on April 25, 2016 10:32 AM
Posted to Indiana Transfer Lists

About this blog - ILB receives award from the Indiana Society of Professional Journalists

The Indiana Law Blog has been awarded the Slaymaker Service to Journalism Award by Indiana Society of Professional Journalists. Many thanks!

Will update later with a photo of the award.

Posted by Marcia Oddi on April 25, 2016 08:00 AM
Posted to About the Indiana Law Blog

Ind. Courts - "Square Donut" name dispute goes to federal court

Some quotes from a long story the ILB missed, from the March 26th Gary Post-Tribune, reported by Teresa Auch Schultz:

Their doughnuts are both sweet and square, but a legal battle is rising between Family Express and a Terre Haute bakery that could leave one of them flat.

Valparaiso-based Family Express filed a complaint for declaratory judgment Thursday in U.S. District Court asking that it be allowed to continue to refer to its four-sided doughnuts as "Square Donuts." * * *

The complaint notes that the two companies' markets are starting to mix, as Square Donuts heads into northern Indiana and Family Express expands south.

Family Express argues in the complaint that the name is descriptive and generic, which would prohibit it from being trademarked. Family Express wants the court to rule that the company is not infringing by using the name Square Donuts and that the trademark is invalid.

The trademark case is "Family Express Corporation v. Square Donuts Inc." Here is the complaint.

Posted by Marcia Oddi on April 25, 2016 07:30 AM
Posted to Indiana Courts

Ind. Courts - Gov. Pence has a little over two weeks left to name a new Supreme Court justice

Governor Pence has a little over two weeks left to name a new Supreme Court justice.

The Supreme Court has two oral arguments set for May 2nd. How many justices will be sitting?

Sec. 10 of ARTICLE 7 of the Constitution of the State of Indiana provides in part:

Section 10. Selection of Justices of the Supreme Court and Judges of the Court of Appeals.

A vacancy in a judicial office in the Supreme Court or Court of Appeals shall be filled by the Governor, without regard to political affiliation, from a list of three nominees presented to him by the judicial nominating commission. If the Governor shall fail to make an appointment from the list within sixty days from the day it is presented to him, the appointment shall be made by the Chief Justice or the acting Chief Justice from the same list.

On March 11th the Judicial Nominating Commission formally submitted the names of three nominees to Governor Pence:

Posted by Marcia Oddi on April 25, 2016 07:25 AM
Posted to Indiana Courts | Vacancy on Supreme Court - 2016

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/25/16):
  • No oral arguments currently scheduled

Next week's oral arguments before the Supreme Court (week of 5/2/16):

Wednesday, April 20

  • 9:00 AM - Cynthia Bell v. State of Indiana (49A02-1504-CR-234) Bell was convicted of criminal mischief and ordered to pay restitution as a condition of her probation. A divided panel of the Court of Appeals affirmed the restitution order, the majority concluding the trial court did not abuse its discretion in determining Bell had the ability to pay. Bell v. State, No. 49A02-1504-CR-234 (Ind. Ct. App. Feb. 2, 2016) (mem. dec.), trans. pending. Bell has petitioned the Supreme Court to accept jurisdiction over the appeal.

    ILB: This was a 9-page, 2-1, NFP, Feb. 2, 2016 COA decision.

  • 9:45 AM - State of Indiana v. Frank Hancock (39S05-1604-CR-182) The Jefferson Superior Court dismissed two counts of possession of a firearm by a serious violent felon after concluding that Hancock’s prior conviction for residential burglary in Ohio was not “substantially similar” to residential burglary in Indiana. When the State appealed, the Court of Appeals affirmed the dismissal. State v. Hancock, --- N.E.3d ---, 2016 WL 275308 (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 Jan. 22, 2016 COA opinion that concluded "it is clear that the Ohio and Indiana residential burglary statutes are not substantially similar as a matter of law."

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 4/25/16):

Wednesday, April 27

  • 2:00 PM - City of Lawrence, et al v. Curry (49A02-1506-CT-699) In 2009, Carlton Curry was appointed to be the Director/Superintendent of the City of Lawrence Utility Services Board (USB). After a new mayor was elected in November 2011, the new mayor's chief of staff informed Curry that his services were no longer required. Curry sued the city, the mayor and the USB for multiple claims. The trial court granted summary judgment in Curry's favor for his wrongful discharge claim (under the utility superintendent statute) and in the defendants' favor for the wage payment statute, and denied summary judgment on the intentional interference with employment relationship claim, which is still pending. The defendants appeal and Curry cross appeals. The Scheduled Panel Members are: Judges Baker, May and Brown. [Where: Court of Appeals courtroom (WEBCAST)]

Thursday, April 28

  • 1:00 PM - Warfield v. Dorey (49A02-1503-PL-164) Appellants-Defendants/Counterclaim Plaintiffs, Faye E. Warfield and Keyotta Warfield A/K/A Nicole Warfield (collectively, the Warfields), appeal the trial court's judgment in favor of Appellees-Plaintiffs/Counterclaim Defendants, Jim Dorey D/B/A JRD Construction Services and JRD Enterprises, LLC (Dorey) on the Warfields' claims arising from the replacement of the Warfields' roof and the repairs to their fireplace by Dorey. The Warfields present this court with four issues on appeal: 1. Whether the trial court erred in determining that the Warfields breached their contract with Dorey; 2. Whether the trial court erred in determining that Nicole Warfield acted as an agent for Faye Warfield; 3. Whether the trial court properly awarded attorney fees and pre-judgment interest to Dory; and 4. Whether the trial court properly denied the Warfields' counterclaims based on the Home Improvement Contract Act. The Scheduled Panel Members are: Judges Riley, Kirsch and Robb. [Where: Wabash College, Salter Hall Fine Arts Center, Crawfordsville, IN]
Friday, April 29

  • 11:00 AM - Lockhart v. State (18A02-1507-CR-00895) Jerome Lockhart was convicted of rape and sexual misconduct with a minor. On appeal, he challenges the peremptory challenge the State made to the only African-American in the jury box, the inclusion of a taped conversation with police investigators, the inclusion of DNA evidence gleaned from his saliva, the exclusion of unknown male DNA evidence, and the trial court's decision to not have portions of his taped statement redacted. The Scheduled Panel Members are: Chief Judge Baker, Judges Bailey and May. [Where: Posey County Courthouse, 300 Main St., Mount Vernon, IN]

Next week's oral arguments before the Court of Appeals (week of 5/2/16):

Wednesday, May 4
  • 1:30 PM - Melton v. Indiana Athletic Trainers Board, et al (49A05-1508-CT-1123) Appellant Molly A. Melton appeals orders of the trial court granting a motion to dismiss and a motion for judgment on the pleadings in favor of the Indiana Athletic Trainers Board (the "Board"), dismissing Melton's Section 1983 action and her petition for judicial review challenging the Board's order indefinitely suspending her license as an athletic trainer for a period of at least seven years. At the administrative level, Melton did not contest allegations that she engaged in a consensual sexual relationship with a patient. At the hearing before the Board, Melton did not appear due to embarrassment relating to the allegations and sent counsel to appear on her behalf. The Board filed notice of proposed default because Melton did not personally appear. Later, the Board convened and entered a default and the order suspending her license. The trial court dismissed Melton's petition for review because Melton did not file the agency record with the court within the 30-day period set by IN Code Section 4-21.5-5-13. Later, the court also dismissed Melton's Section 1983 claim under IN Trial Rule 12(C). The Scheduled Panel Members are: Judges Kirsch, Mathias and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]

The past COA oral arguments which have been webcast are accessible here.

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.


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

Posted by Marcia Oddi on April 25, 2016 07:19 AM
Posted to Upcoming Oral Arguments

Friday, April 22, 2016

Ind. Courts - ILB looking for the briefs in Lake Michigan Lakeshore case

The Court of Appeals brief of the Appellee State of Indiana and IDNR was filed April 20th and thanks to the new Court policy, is available online via the docket.

However, briefs filed before April 1, 2016 are not readily available. Those would include the 2/19/2016 Appellant Gunderson brief, the 3/21/2016 Appelleee Save the Dunes brief, the 3/23/2016 Appellee/Cross-Appellant Brief of Long Beach Community Alliance brief. If you can help. please contact the ILB.

Posted by Marcia Oddi on April 22, 2016 03:56 PM
Posted to Indiana Courts