Friday, August 28, 2015

About this Blog - The ILB is on vacation through Labor Day (this post will always be at the top)

The ILB is taking a vacation through Labor Day.* This is the first break of more than four days in its over 12-year history. On Sept. 8th the posts will begin again and will then continue through the remainder of September -- the rest of this 3rd Quarter. The ILB's future thereafter remains uncertain.
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*I will, however, continue next week to post the lists of any new opinions so that, in case the ILB does find the major long-term contributors it needs to keep it from going permanently dark the end of September, there is not a week of missing case summaries.

Posted by Marcia Oddi on August 28, 2015 04:47 PM
Posted to About the Indiana Law Blog

Ind. Decisions - 7th Circuit decides two more Indiana cases today

In Subah Packer v. Trustees of Indiana University (SD Ind., Pratt), an 18-page opinion, Judge Rovner writes:

This case is yet another cautionary tale about the consequences of not properly responding to a motion for summary judgment. Dr. Subah Packer was discharged from a tenured position at the Indiana University School of Medicine based on what the University says was a persistent failure to meet expectations, particularly with respect to publication and securing grant money for her research. Packer contends that the official rationale for her discharge is a mere pretext for sex discrimination, and that the dean of the medical school had long sought her discharge after he was unsuccessful in preventing her from obtaining tenure. The problem, for Packer, is that when the defendants (the trustees of the medical school—whom we shall refer to collectively as the “University”) moved for summary judgment, her counsel below did not properly support the elements of her claims with specific citations to admissible record evidence. Her new counsel has attempted to rectify the omissions on appeal, but this is too late in the day. Given the patent defects in Packer’s summary judgment memorandum below, we conclude that the district court properly entered judgment against Packer. [ILB emphasis]

In Michael A. Kelley v. Greg Zoeller (ND Ind., Soringmann), an 18-page opinion in a prisoner appeal, Judge Rovner writes:

On October 1, 1974, a then-eighteenyear- old Michael Kelley walked into a Hammond, Indiana, sandwich shop with a gun and demanded that an employee hand over all of the money in the store. Kelley walked out with $28 and a robbery conviction that would shadow him for more than thirty-seven years. In 2011, a federal judge in Missouri used that robbery conviction to enhance Kelley’s sentence for a firearms offense. Kelley now claims that the State of Indiana should have expunged the robbery conviction under a plea deal that he struck in 1975, and that the Missouri court should not have used the conviction to lengthen his federal sentence. We affirm the judgment of the Indiana district court dismissing for lack of jurisdiction. * * *

Finally, we note that the State of Indiana did not have a statute allowing for expungement of criminal convictions until 2013, nearly forty years after Kelley asserts that Indiana prosecutors agreed to expunge his conviction upon successful completion of his federal sentence. See Ind. Code § 35-38-9-1 et seq. (2013); Taylor v. State, 7 N.E.3d 362, 366–67 (Ind. Ct. App. 2014) (noting that the Indiana legislature passed the expungement statute in 2013 in order to give “individuals who have been convicted of certain crimes a second chance by not experiencing many of the stigmas associated with a criminal conviction–especially where an individual has completed the requirements established by the trial court and has since been a law-abiding citizen”). Although Kelley cited the FYCA as the law authorizing expungement of his federal conviction, he has never cited any Indiana law that would have allowed expungement of a state conviction in 1975. Nor has he ever asserted that prosecutors tried to mislead him regarding the terms of his plea agreement or the availability of expungement in Indiana, and we note that he was represented by counsel at the time. It therefore seems unlikely that his 1975 plea agreement with the State of Indiana contained the terms that Kelley asserts. In any case, the terms of the plea agreement are no longer relevant: the Indiana courts have concluded that Kelley waited too long to challenge the 1975 robbery conviction, and we may not review that judgment. For all of the foregoing reasons, the judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on August 28, 2015 04:37 PM
Posted to Ind. (7th Cir.) Decisions

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

In Saint Catherine Hospital v. Indiana Family and Social Serv (SD Ind., Barker), an 11-page opinion, Judge Williams writes:

St. Catherine Hospital had to pay a Hospital Assessment Fee (“HAF”) as part of an Indiana program designed to increase Medicaid reimbursements to eligible hospitals. St. Catherine was required to pay its HAF in two installments, but after it failed to pay its HAF, the Indiana Family and Social Services Administration (“FSSA”) began withholding Medicaid reimbursements. On June 19, 2012, St. Catherine filed for bankruptcy under Chapter 11. After this date, FSSA continued to withhold reimbursements in satisfaction of St. Catherine’s HAF debt.

St. Catherine filed an adversary complaint against FSSA claiming that the HAF was a pre-petition claim subject to the automatic stay. The bankruptcy court granted St. Catherine summary judgment on this claim, ruling the HAF was an “act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case” pursuant to 11 U.S.C. § 362(a)(6) and was subject to the automatic stay. FSSA was ordered to repay St. Catherine the full amount it had withheld. FSSA appealed to the district court, which reversed the bankruptcy court’s judgment as to the HAF for fiscal year 2013 (the “2013 HAF”). St. Catherine now appeals, arguing the 2013 HAF, like the 2012 HAF, is a pre-petition claim subject to the automatic stay. We agree and reverse the decision of the district court.

Posted by Marcia Oddi on August 28, 2015 11:30 AM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 7 NFP memorandum decisions)

For publication opinions today (5):

In American Cold Storage NA, et al. v. City of Boonville, a 19-page opinion, Judge Baker writes:

Boonville seeks to annex an area of over 1,000 acres that is adjacent to the city. A group of landowners in the annexation area filed a remonstrance petition. The current appeal is the fourth time this particular annexation ordinance has reached the appellate courts (it has been twice to the Court of Appeals and once to our Supreme Court).

Here, the landowners in the annexed area appeal the trial court’s order finding in favor of Boonville on the remonstrance petition. The landowners argue that the trial court deferred too much to Boonville’s judgment and that the evidence does not support a conclusion that Boonville met its statutory burden of showing either that 60% of the land in the annexed area is “subdivided” or that the annexed area is needed and can be used by Boonville for development in the reasonably near future. Finding that the trial court applied the correct standard and that the evidence is sufficient to support the trial court’s order, we affirm.

In Winona Powder Coating, Inc., and Winona PVD Coatings, LLC v. Spark Energy Gas, LP, a 12-page opinion, Chief Judge Vaidik writes:
Following the deregulation of the natural-gas industry, choice programs emerged to provide Indiana customers with the opportunity to select their gas suppliers. In 2013, Winona Powder, an Indiana company engaged in the powder-coating business, and Winona PVD, an Indiana company engaged in the painting of automobile wheels (collectively “Winona”), entered into agreements to purchase natural gas from Spark Energy Gas through a choice program offered by Northern Indiana Public Service Company (NIPSCO). When Spark’s invoices were more than Winona expected, Winona filed a complaint with the Indiana Utility Regulatory Commission (the IURC or the Commission). The Commission concluded that it did not have jurisdiction over the case and dismissed it without prejudice.

Winona appeals. Because Spark is not a public utility, the Commission does not have statutory jurisdiction over the case. In addition, neither the Supplier Aggregation Service Agreement (SASA)—including its Code of Conduct—between NIPSCO and Spark, nor the Natural Gas Sales Agreement between Spark and Winona vest the Commission with jurisdiction. We therefore affirm the Commission’s dismissal of the case without prejudice.

In Abdullah Alkhalidi v. Indiana Department of Correction, a 10-page opinion with a pro se appellant, Judge Barnes concludes:
The small claims court had subject matter jurisdiction to consider Alkhalidi’s replevin claim. The DOC, not Alkhalidi, had the burden of proving that Alkhalidi failed to exhaust his administrative remedies before filing his claim. Because the DOC did not prove such, the small claims court erroneously dismissed Alkhalidi’s claim. We reverse and remand.
In In Re: Grandparent Visitation of K.M., F.M. v. K.F., a 21-page opinion, Judges Riley writes:
Appellant-Respondent, F.M. (Mother), appeals the trial court’s Order awarding grandparent visitation of her minor child, K.M. (Child), to Appellee-Petitioner, K.F. (Grandmother). We affirm in part, reverse in part, and remand. * * *

Based on the foregoing, we conclude that the trial court did not err in granting Grandmother’s petition for grandparent visitation. We further conclude that the trial court abused its discretion by ordering a visitation schedule that is excessive and unduly burdensome on both Mother and the Child.

In Jared Allen Mynatt v. State of Indiana , a 10-page opinion, Judge Riley writes:
Mynatt raises one issue on appeal, which we restate as: Whether the trial court abused its discretion in denying Mynatt’s request for counsel during trial. * * *

Here, Mynatt was advised at his pretrial hearing about the dangers of proceeding pro se. Even in light of these warnings, Mynatt was confident that he would successfully defend himself without the assistance of counsel. Mynatt stated that he had managed to have ten felony Counts dismissed for lack of evidence. Mynatt was also not concerned about picking out a jury or serving prison time if found guilty. Moreover, a continuance would have been imminent to enable the newly appointed counsel to become familiar with the case. As such, our analysis of the Koehler factors, in conjunction with Mynatt’s expression that he would adequately represent himself, leads us to conclude that the trial court did not violate Mynatt’s Sixth Amendment right to counsel.

NFP civil decisions today (1):

In the Matter of: B.S. and A.S., Children In Need of Services, and M.S. v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (6):

Robert Shelley v. State of Indiana (mem. dec.)

Thomas D. Sayre v. State of Indiana (mem. dec.)

Ralph Franklin, Jr. v. State of Indiana (mem. dec.)

David Goodin v. State of Indiana (mem. dec.)

James Matt Hayes v. State of Indiana (mem. dec.)

Phil L. Honer v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 28, 2015 11:13 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - Commission on Judicial Qualifications new advisory opinion on judges receiving compensation for officiating over weddings

Here is the advisory opinion. Some quotes:

May judges receive compensation for officiating wedding ceremonies during the court’s regular hours? Is this analysis affected by whether the ceremony is performed at the courthouse or at an alternate location?

The Commission’s view is that a judge who performs wedding ceremonies during the court’s regular hours should remit any funds received for these services to the court. By receiving personal compensation for judicial duties performed at the courthouse while the court is open and conducting business, judges and judicial officers may be perceived as using their judicial position for pecuniary gain, in violation of Rule 1.3 of the Code of Judicial Conduct.

Judges and judicial officers who solemnize marriages outside of normal court hours, even at the court, may personally accept a reasonable fee for these services. However, as always, judges should conduct themselves in a manner to minimize any potential conflicts or the appearance of impropriety by the performance of these extrajudicial duties. * * *

To some members of the public, a judge’s receipt of a fee for performing a marriage ceremony during court hours may seem analogous to the receipt of a fee for signing an order or ruling upon a motion. Judges must therefore decline the personal acceptance of any fees or gratuities for solemnizing marriages during regular court hours while on court premises. If a judge is offered payment for performing an after-hours marriage ceremony, the source and amount of funds must still be evaluated to determine whether acceptance may lead to an appearance of impropriety.

Posted by Marcia Oddi on August 28, 2015 10:59 AM
Posted to Indiana Courts

Ind. Courts - August Rehearing Surprises: “Wrong Version of Opinion” Issued, and a Published Opinion Becomes Memorandum

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

As the Court of Appeals’ annual reports show, rehearing petitions are filed in about 10% of cases, and the vast majority of petitions (84-89%) are denied each year. The rare petitions that are granted usually draw a few paragraphs clarifying (or perhaps correcting) a point before almost always reaching the same result.

Not so in August.

Two recent rehearing opinions have seemingly broken new ground in their approach.

“[W]rong [V]ersion” of Opinion Issued

On July 6, 2015
, the Court of Appeals reversed Richard Jones’ conviction for resisting law enforcement. The State filed a petition for rehearing on August 5. Just five days later, the Court of Appeals issued an order granting rehearing because “the wrong version of the Court's opinion was issued.” The order explains that “the Court formally withdraws and vacates the version of its opinion that was handed down on July 6, 2015” and simultaneously issued a “corrected version” that affirmed the conviction. This was not a grant of the State’s petition for rehearing, however, which August 10 order instead denied it as moot.

The July 6 and August 10 [also marked as "July 6"] versions of the opinion each rely on Gaddie v. State, 10 N.E.3d 1249 (Ind. 2014), although they reach different results.*

Published No More; Memorandum Rehearing Decision Issued

On April 16, 2015, the Court of Appeals issued a published opinion revising Jeffrey Hunt’s sentence from 120 years to 100 years. In early August I printed and later summarized the opinion for my upcoming “Criminal Justice Notes” column in Res Gestae. As a final check before submitting the article later this month, I checked the online docket for rehearing or transfer petitions or orders. The State had filed a petition for rehearing on May 18, which the Court of Appeals granted on August 7.

Instead of issuing an order clarifying or modifying some part of the opinion, the Court issued a memorandum decision that replaced the original opinion. It appears that a paragraph near the end of the opinion was removed, but the Court reached the same result. Because the published opinion is no more, you will not be reading about it in the next edition of Res Gestae -- nor will anyone be able to cite it in the future. Lawyers who rely on the advance sheets beware; the Hunt case published at 30 N.E.3d 18 is no longer good law -- and the replacement opinion will not appear in a future installment.

Conclusion

The response to the Jones and Hunt rehearing opinions are notable because of their novelty. Lawyers filing or defending rehearing petitions should not expect to see rehearing granted (or vacated as moot) to issue the correct opinion with a different outcome (as in Jones) or to strike a paragraph and change a published opinion to a memorandum one (as in Hunt) anytime soon.
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*It’s not entirely clear whether the original July 6 opinion was memorandum or published. The footer states it is a memorandum decision, but there is no text box at the top of the first page with the Appellate Rule 65(D) language. The online docket entry suggests it was published. The August 10 decision is clearly marked memorandum.

Posted by Marcia Oddi on August 28, 2015 10:30 AM
Posted to Schumm - Commentary

Ind. Gov't. - Questions and outcry about the Dunes Pavilion project continue to compound

The ILB has been following this story from the start; here is a long list of posts dating back to 2006.

Today Brian Slodysko of the AP has a long "big story" headed "Deal to develop parkland near dunes riles conservationists," which the ILB has seen this morning in the Chicago Tribune and the South Bend Bend Tribune. Some quotes:

Te parkland surrounding Indiana's towering dunes was intended to keep industry away from a geological marvel molded over thousands of years at the southern tip of Lake Michigan.

Yet five years after a politically connected developer suggested officials should hire a company to rehabilitate a dilapidated beachfront pavilion at the popular tourist destination, a small construction project has ballooned into a decades-long privatization deal with the state. It includes two beachfront restaurants, a rooftop bar, a glass-walled banquet hall promising "the best view in Indiana" — and there is potential for more development to come.

What's more, the company ultimately picked to do the job was co-founded by Chuck Williams, the developer who pitched the initial idea. Williams, a regional chairman of the state Republican Party, worked behind the scenes for over a year with the administrations of two GOP governors, shaping and expanding the plans. He faced competition from just one other company — a bid that was deemed "good" though not as profitable.

"On its face, it looks suspicious," Antony Page, vice dean of the Indiana University law school in Indianapolis, said of the deal by Williams' Pavilion Partners. "A big Republican supporter gets a potentially very lucrative contract?"

Deb Butterfield, a spokeswoman for Pavilion Partners, called the effort "a showcase project" for Indiana that would "put an exclamation point on what a beautiful asset this is."

Conservationists since the late 1800s have sought to protect the dunes on Lake Michigan's southern shore, which offer a glimpse of Chicago's skyline on a clear day. First came Indiana Dunes State Park, which turns 90 on Saturday. Later, Congress created the Indiana Dunes National Lakeshore, a 15-mile sliver of land encompassing the park. * * *

[O]pponents say the favorable terms of the contract, as well as the apparent advantage Williams had over his competitors, are indicative of murky proceedings that can surround privatization deals. Aside from Williams' involvement, some question whether the state should have involved any private company to shape the long-term vision for Indiana Dunes State Park, a publicly owned property that draws more than a million yearly visitors.

Jim Sweeney of the conservationist group The Izaak Walton League of America said it adds up to a "usurping" of public land in the name of private development. He and other critics maintain the state Department of Natural Resources did not hold public meetings or seek out more competitive bids because Williams was the preferred candidate all along.

"The DNR sold their soul on this thing," Sweeney said. "The amount of money coming back into the state coffers is paltry." * * *

Preliminary figures submitted to the DNR by Williams suggest the project will yield a handsome profit. In its first year, the development is expected to turn a $141,000 profit — a figure projected to climb to nearly $500,000 in a decade.

In return, the DNR will get 2 percent of the company's annual revenues and $18,000 a year in rent for property that state parks Director Dan Bortner describes as having a "million dollar smile."

The scope of Williams' deal could also expand. Under the terms of the contract, Pavilion Partners gets first right-of-refusal if additional projects are planned for the park, which could include a hotel or marina. The company is also authorized to hold private events on the beach, including concerts and festivals.

Deanna Malatesta, an associate professor and Indiana University, characterized the contract as a "sell off of public property."

Before becoming one of nine regional chairmen of the state Republican party, Williams served as the head of the Porter County GOP. Over roughly a decade, Williams, his wife and business ventures collectively pumped roughly $350,000 into the county political operation, according to state records. He also donated about $8,000 to former Gov. Mitch Daniels and has given about $3,500 to Gov. Mike Pence, both of whom are Republicans. Williams, who was once a Valparaiso city councilman, currently serves on a public tourism board tasked with promoting the Indiana Dunes State Park.

The appearance that politics played a role has rankled many in the area, said House Minority Leader Scott Pelath, a Democrat whose district neighbors the dunes.

"People see certain public private-partnerships that evade the normal types of transparency and they become worried about sweetheart deals," said Pelath, of Michigan City. "There is an increasing worry that natural resources continue to be seen as something to be exploited rather than be enjoyed."

A news release from Dunes Action, a group opposed to expanding the footprint of the existing pavilion, includes:
Chesterton, In – Dunes Action is calling for an immediate halt to the Pavilion development project at the Indiana Dunes State Park and is recommending that a full investigation be done into whether political ties influenced the lucrative lease award to Pavilion Partners LLC (PPLLC) by the Indiana Department of Natural Resources (IDNR). An Associated Press story by Brian Slodysko casts additional doubts on the legitimacy of the process and suggests that politics were involved. The story was filed early today and has been picked up by national news media. * * *

Emails obtained by Dunes Action via open records requests have shown that members of what is now PPLLC actually pitched the project to the IDNR well over a year before a public solicitation was issued. Both PPLLC principal Chuck Williams, and Scott Virtue, the project architect, exchanged emails and met with IDNR staff in 2010 and early 2011. PPLLC was awarded a 35 year lease with two possible 15 year extensions in February of this year to renovate the iconic Pavilion building, construct restroom facilities and build a banquet center at the Indiana Dunes State Park.

It is unclear whether the Natural Resources Commission (NRC) was aware of the prior contact between PPLLC and the department. The NRC was required to approve the IDNR's vendor selection to negotiate a contract, and did so by voice vote at a commission meeting on May 15, 2012. Few details about the extent of the project were recorded in the official meeting minutes. * * *

The Porter County Chapter of the Izaak Walton League and Dunes Action have already made a case for stopping the project on the grounds that it violates federal guidelines set out in the Land and Water Conservation Fund Act of 1965. The guidelines require approval from the National Park Service prior to the start of the project. The IDNR started that approval process after the outcry from Izaak Walton and Dunes Action.

Posted by Marcia Oddi on August 28, 2015 09:35 AM
Posted to Environment | Indiana Government

Ind. Courts - "Former Valpo attorney called 'thief and a liar' at sentencing"

The ILB has had a number of earlier posts on former Valparaiso attorney Clark Holesinger. Today Bob Kasarda had this story in the NWI Times. Some quotes:

SOUTH BEND | Former Valparaiso attorney Clark Holesinger told the court and theft victims Thursday that his behavior was "disruptive" and "evil."

Holesinger apologized and made the comments shortly before he was sentenced by a federal judge to an agreed-to 10-year prison term and to pay a restitution balance amounting to $986,480.

One of Holesinger's victims, from whom he stole $612,043 in a medical malpractice settlement for her child, said, "You, sir, are a thief and a liar."

"You stole money from an 8-year-old child — an 8-year-old handicapped child." * * *

Holesinger, 54, pleaded guilty in April to federal counts of wire fraud and money laundering. * * *

The federal plea agreement calls for Holesinger to plead guilty to charges from the same case filed in the Porter County courts. He is to receive a sentence of probation at the county level, which will run consecutive to the federal term.

He is scheduled to appear Tuesday before Porter Circuit Court Judge Mary Harper.

Holesinger said as part of his federal sentencing memorandum that he agreed to the 10-year federal term — even though it exceeds the advisory period by three to four years — because he hopes to avoid separate and serial incarcerations.

United States District Court Judge Robert Miller Jr. and Assistant United States Attorney William Grimmer both said they have never seen an attorney sentenced to this long of a term.

"People will feel different about attorneys because of what you did," Miller said.

Holesinger, who is said to have taken more than $2 million in all, had already settled financially with businesses that fell victim to his actions, the judge said.

Holesinger resigned from the state bar in March 2014.

Posted by Marcia Oddi on August 28, 2015 08:27 AM
Posted to Indiana Courts

Ind. Courts - Maybe LWOP Cases Shouldn’t Go Directly to the Indiana Supreme Court (or routinely be granted oral argument)

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

Two of the Indiana Supreme Court’s oral arguments yesterday were in life without parole cases. Appellate Rule 4 gives the court mandatory and exclusive jurisdiction over death penalty and life without parole (LWOP) cases. After reading and attempting to summarize some recent LWOP cases for my Res Gestae column and watching yesterday’s arguments, I have begun to question whether LWOP cases should instead go to the Court of Appeals—or, if they do continue to go to the Indiana Supreme Court, whether the practice of routinely granting oral argument should be discontinued.

Before the Indiana Constitution was amended in 2000, the Indiana Supreme Court had mandatory jurisdiction over cases in which a defendant received more than fifty years on a single count, which meant nearly every murder case went to the Court. Many of the issues in those cases were straightforward and easily resolved in relatively few pages; oral argument was rarely granted.

The constitutional amendment in 2000 -- like one in 1988 before which the Indiana Supreme Court heard cases with sentences over ten years -- was designed to clear the docket of routine cases and allow the Court to “act more as a court of last resort,” allowing the justices instead to focus on deciding cases on petitions to transfer involving conflicts between decisions or important unsettled issues of law.

Article 7, Section 4 simply requires the Indiana Supreme Court to hear appeals involving a “sentence of death,” but not LWOP cases. As I understand it, the LWOP provision in Appellate Rule 4 was included to ensure the Supreme Court had control over the interpretation of Indiana Code Section 35-50-2-9, the statute that governs not only death sentences but also life without parole.

Why Change?

Although life in prison is surely a lengthy sentence, many sentences in term-of-years cases are de facto life sentences. For crimes committed after July 1, 2014, a Level 1 Felony carries maximum sentence of fifty years, and it’s not at all uncommon for a person to be convicted of multiple Level 1 (robbery, burglary, child molesting, rape, etc.) offenses. Two fifty-year sentences, ordered consecutively, is a 100 year sentence—75% of which the defendant must serve, assuming good behavior. Life expectancy in prison is lower than in the general population; even a very young defendant is unlikely to see the outside of the prison walls.

Some LWOP cases present significant or novel legal issues, but others do not. Listen to the oral argument yesterday morning in Blaize v. State, which is summarized on the Court’s website in the following two sentences: “Following a jury trial at which Blaize was found guilty of murder and other offenses, the Gibson Circuit Court sentenced him to life imprisonment without the possibility of parole. In this direct appeal, Blaize argues that a comment made by the judge during the trial deprived him of a fair trial.” The judge’s off-hand comment was about cellphone sectors “whatever that means.” Many of the justices’ questions suggested they thought the judge was not only joking but that his comment may well have helped the defense. As Justice Massa put it: “He’s making a joke, but the joke seems to be on the prosecution. He’s making fun of their evidence. How does that hurt your client?” Even if improper, none of the justices said anything to suggest that the single comment in the course of a long trial would warrant a new trial.
Nevertheless, the one-issue case, without a challenge to the sentence of life imprisonment, took up a spot on the Court’s argument docket and will result in an opinion. And all opinions from the Indiana Supreme Court are published, even in cases that would have resulted in a short memorandum decision without oral argument had it gone instead to the Court of Appeals.

If yesterday’s (non)argument happens at least a few times each year, perhaps mandatory jurisdiction for LWOP cases should be reconsidered—or at least the practice of scheduling the cases for oral argument should be discontinued.

Posted by Marcia Oddi on August 28, 2015 08:23 AM
Posted to Schumm - Commentary

Ind. Courts - "0INK" license plate case argued yesterday before our Supreme Court

Commissioner of the Indiana Bureau of Motor Vehicles v. Rodney Vawter, et al., the "0INK" license plate case, was argued yesterday before the Indiana Supreme Court. You may watch the entire oral argument for yourself here. As the ILB reported Aug. 7th, on July 7th the parties had been granted "permission to file supplemental briefs addressing the recent decision of the [U.S.] Supreme Court in Walker v. Texas Div., Sons of Confederate Veterans, Inc., No. 14-1444 (U.S. June 18, 2015)."

Kristine Guerra reported on yesterday's argument in a long story in the Indianapolis Star. Some quotes:

The Indiana Supreme Court justices must decide whether the letters and numbers on a personalized license plate is a form of government speech that should be controlled, or a person’s speech that should be protected by the First Amendment.

The Indiana Bureau of Motor Vehicles is asking the justices to overturn a ruling by a Marion County judge who found the agency’s process of reviewing and approving personalized license plates was unconstitutional. Justices heard arguments Thursday from Thomas Fisher, solicitor general for the Indiana attorney general’s office, which is representing the BMV on the appeal, and Ken Falk, legal director for the American Civil Liberties Union of Indiana. * * *

At issue now before the Indiana justices is whether a recent U.S. Supreme Court ruling that confirmed a government’s right to decide which groups can be honored with specialty license plates applies in the BMV case. The country’s highest court in June ruled 5-4 that Texas had the right to reject a request by the Sons of Confederate Veterans for a plate that would’ve included the image of a Confederate flag.

Fisher’s arguments Thursday relied heavily on the Texas ruling, saying it’s squarely in line with the BMV case, even though Indiana’s focus is on personalized license plates, not specialty ones.

Fisher said the state can exercise some discretion over excluding messages on personalized plates that it considers offensive. A government review of the messages is necessary, he said. Fisher also conceded that the legislature can amend the existing statute that allows the state to approve and reject messages on personalized plates.

“The letters, the numbers themselves are exactly the core of government speech,” Fisher said, adding that the government has a final say on what message should or should not be on personalized plates.

Falk [of the ACLU] said considering personalized license plates a government speech would be “a real problem” for the state, which, for years, has been approving plates with overly religious messages. He said that shows that the government favors one religion over another, and therefore, violates the Constitution.

“It’s perfectly fine as a personal expression,” Falk said, “but those are clear Establishment Clause violations.”

Echoing [Superior Court Judge] Osborn, Falk said the state should have more precise standards of reviewing and approving personalized plates. Currently, he said, standards by the BMV are so “malleable” and produce “diametrically inconsistent results” based on who’s reviewing the plates that such rules might as well not exist at all.

“This would not be the Wild West,” he said. “This would be approving plates pursuant to clear standards.”

Brian Slodysko of the AP reported:
In its arguments, the state cited a statute allowing it to refuse to issue a plate deemed "offensive to good taste and decency" or that "would be misleading." But a Marion County judge ruled in Vawter's favor, saying the BMV lacks consistent rules for determining what is and isn't appropriate and directed the agency to come up with new guidelines.

That process is on hold pending the outcome of the case. The BMV also stopped offering vanity plates in 2013 until the case was decided.

To bolster the state's case, Fisher cited a recent U.S. Supreme Court ruling that found Texas did not violate the free speech rights of some residents by refusing to issue a license plate featuring the Confederate battle flag. Texas had argued that the license plates are government property, and so what appears on them is not private individuals' speech but the government's.

Falk, who also appeared on behalf of a client whose revoked vanity plate said "UNHOLY" — a reference to a song by the rock group KISS — noted that the state has sanctioned religious-themed plates and questioned if it was using a double standard that violates freedom of religion protections.

"Clearly, if you are going to allow people to have 'BIBLE 4 ME' or 'GOD THANKS' you have to allow 'UNHOLY,' " Falk said. "You can't pick and choose sentiments."

Posted by Marcia Oddi on August 28, 2015 08:01 AM
Posted to Indiana Courts

Thursday, August 27, 2015

Ind. Decisions - Supreme Court decides two today, including GWDS issue

In JPMorgan Chase Bank, N.A. v. Claybridge Homeowners Association, Inc. v. Deborah M. Walton, et al., an 11-page, 5-0 opinion, Chief Justice Rush writes:

Three years after a final judgment foreclosing Plaintiff’s judgment lien—and six years after the suit began—a successor mortgagee moved to intervene to assert its interest in the foreclosed property. We hold the trial court did not abuse its discretion in denying the motion to intervene as untimely because Plaintiff’s lis pendens notice, filed at the beginning of the suit, provided constructive notice of the suit. That notice was valid because it was based on an enforceable, unrecorded judgment lien, and Plaintiff’s action to foreclose its judgment lien was an in rem real estate action. We therefore affirm denial of the mortgagee’s motion to intervene.
In Sci Propane, LLC; South Central Indiana Rural Electric Membership Corp.; RushShelby Energy Rural Electric Co-op, Inc. v. Courtney Frederick, as Personal Rep. of the Est. of Stephan Fredrick, Deceased, a 10-page, 5-0 opinion, Justice Massa writes:
We are asked to resolve a matter of first impression with respect to Indiana’s fifty-year-old General Wrongful Death Statute [GWDS]; specifically, whether attorneys’ fees are recoverable as a form of damages when the decedent is survived by a spouse and/or dependents. Finding that they are not, we reverse the attorneys’ fee award. * * *

In light of our precedent strictly construing the GWDS, the presumption against the abrogation of the American Rule, and a valid policy rationale in support, we find attorneys’ fees are not recoverable as compensatory damages under the GWDS when the decedent leaves a surviving spouse and/or dependents.[9] Finding this issue dispositive, we need not reach the remaining issues presented by the parties on transfer.

Conclusion. For the foregoing reasons, we reverse the award of attorneys’ fees under the General Wrongful Death Statute, Indiana Code section 34-23-1-1.
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[9] As we stated in Durham, “we believe policy setting on an issue such as this is for the elected branch of government. If the legislature disagrees with this longstanding interpretation of the statute, it can correct it.” 745 N.E.2d at 763.

Posted by Marcia Oddi on August 27, 2015 01:00 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Jury finds former attorney guilty on drug charges"

The Corydon Democrat reports today in a story by Alan Stewart:

A jury found former Corydon attorney and candidate for superior court judge Leah Fink guilty of several felony and misdemeanor drug charges Thursday evening. * * *

During closing arguments, Fink's attorney, Mark Clark of Salem, said his client wasn't disputing most of the charges and admitted to using drugs. He said the ones at issue were dealing in methamphetamine and possession of precursors.

Clark unsuccessfully argued that none of the evidence shown to the jurors, including an undercover surveillance video recording, directly implicated Fink and said that co-defendant Jeremy Ripperdan had everything to gain by testifying against Fink, including a plea agreement.

While tossing a baseball in the air, Harrison County Prosecutor J. Otto Schalk told jurors they needed to keep their eye on the ball in the case and look at all of the evidence and not just the video.

In August 2011, Fink and her boyfriend, Ripperdan, were arrested at Fink's home along East Ridge Road south of Corydon. About a minute into a search of the home, officers located a working methamphetamine lab, which was cleaned up by the Indiana State Police's clandestine team.

In 2008, Fink was unsuccessful in her bid to receive the Democratic nomination to unseat Harrison Superior Court Judge Roger D. Davis. She lost by slightly more than 2,000 votes.

Fink had 20 years of legal experience, with about half of those serving as the felony public defender in Harrison Superior Court. Fink was licensed to practice law in Indiana and Kentucky in 1991.

Posted by Marcia Oddi on August 27, 2015 12:51 PM
Posted to Indiana Courts

Ind. Courts - ACLU of Indiana Challenges State Law Prohibiting Ballot "Selfies"

Updating this long ILB post from Tuesday (inlcuding the text of the Indiana law), headed "Is Indiana law explicitly banning taking photographs in voting booth unconstitutiional?" the Indiana ACLU today has issued this news release:


Indianapolis - The American Civil Liberties Union of Indiana is challenging a state law that took effect on July 1 that makes it a potential felony for Hoosiers to take a picture of their election ballot or to share it on social networks, saying the law violates the First Amendment to the U.S. Constitution.

"Taking a picture of one's ballot and sharing it with family and friends is an expression of pride and enthusiasm about voting, and is a form of political speech that must be protected," said ACLU of Indiana Legal Director Ken Falk. "This law, which is a content-based regulation of speech, deprives Hoosiers of this fundamental right and is unconstitutional."

The lawsuit, brought on behalf of members of the ACLU of Indiana who wish to take and share pictures of their ballots seeks to stop enforcement of Indiana Code 3-11-8-17.5 and to prevent anyone who takes a ballot "selfie" from being arrested. A core function of the ACLU of Indiana is to protect the rights of free speech and expression guaranteed by the Constitution.

The case Indiana Civil Liberties Union Foundation, Inc., d/b/a American Civil Liberties Union of Indiana v. Indiana Secretary of State, et al., Case 1:15-cv-1356-SEB-DML was filed in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, on August 27, 2015.
The ILB will add a link to the complaint when it becomes available.

Posted by Marcia Oddi on August 27, 2015 11:16 AM
Posted to Indiana Courts

Ind. LCourts - ACLU of Indiana Challenges State Law Prohibiting Ballot "Selfies"

Updating this long ILB post from Tuesday, headed "Is Indiana law explicitly banning taking photographs in voting booth unconstitutiional?" the Indiana ACLU today has issued this news release:


Indianapolis - The American Civil Liberties Union of Indiana is challenging a state law that took effect on July 1 that makes it a potential felony for Hoosiers to take a picture of their election ballot or to share it on social networks, saying the law violates the First Amendment to the U.S. Constitution.

"Taking a picture of one's ballot and sharing it with family and friends is an expression of pride and enthusiasm about voting, and is a form of political speech that must be protected," said ACLU of Indiana Legal Director Ken Falk. "This law, which is a content-based regulation of speech, deprives Hoosiers of this fundamental right and is unconstitutional."

The lawsuit, brought on behalf of members of the ACLU of Indiana who wish to take and share pictures of their ballots seeks to stop enforcement of Indiana Code 3-11-8-17.5 and to prevent anyone who takes a ballot "selfie" from being arrested. A core function of the ACLU of Indiana is to protect the rights of free speech and expression guaranteed by the Constitution.

The case Indiana Civil Liberties Union Foundation, Inc., d/b/a American Civil Liberties Union of Indiana v. Indiana Secretary of State, et al., Case 1:15-cv-1356-SEB-DML was filed in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, on August 27, 2015.
The ILB will add a link to the complaint when it becomes available.

Posted by Marcia Oddi on August 27, 2015 11:16 AM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 3 NFP memorandum decisions)

For publication opinions today (1):

In Denna Delacruz and Barry Barger v. Paul Wittig, a 10-page opinion, Judge Crone writes:

Reserve Sheriff’s Deputies Denna Delacruz and Barry Barger (collectively “the Deputies”) were assaulted and suffered injuries during their investigation of a disturbance at a Fourth of July party. They arrested and later filed a tort action against the alleged assailant, Paul Wittig. More than two years after the incident, Wittig filed a counterclaim alleging that the Deputies used excessive force during his arrest. The Deputies filed a motion to dismiss Wittig’s counterclaim as untimely, which the trial court denied. We accepted the Deputies’ interlocutory appeal and conclude that Wittig’s counterclaim is barred by the two-year statute of limitations. We therefore reverse the trial court’s denial of the Deputies’ motion to dismiss the counterclaim. * * *

In sum, Wittig’s counterclaim was untimely filed and does not otherwise qualify for exemption under Trial Rule 13(J)(1). As such, it was time-barred and subject to dismissal. Based on the foregoing, we conclude that the trial court erred in denying the Deputies’ motion to dismiss the counterclaim pursuant to Trial Rule 12(B)(6). Accordingly, we reverse and remand for proceedings consistent with this opinion.

NFP civil decisions today (0):

NFP criminal decisions today (3):

Antonio L. Chandler v. State of Indiana (mem. dec.)

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

Paul R. Hoffert v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 27, 2015 10:35 AM
Posted to Ind. App.Ct. Decisions

Law - "In Law School Moves: A Politician, a Prof and a Prosecutor"

From Karen Sloan of The National Law Journal, a long story that begins:

The lines between law school, the bench and politics blurred a bit this week as schools announced a number of high-profile faculty visitors and one major appointment.

University of Arkansas law professor Howard Brill on Tuesday was appointed as the new chief justice of the state’s Supreme Court, to serve out the term of Justice Jim Hannah, who is resigning on Aug. 31 for health reasons. Arkansas Governor Asa Hutchinson made the appointment.

Meanwhile, The University of Georgia School of Law said that former U.S. Sen. Saxby Chambliss would co-teach a law course on political leadership this fall. And Indiana Tech Law School said current State Attorney General Greg Zoeller will teach a class on Indiana constitutional law.

Posted by Marcia Oddi on August 27, 2015 10:27 AM
Posted to General Law Related

Courts - "Kentucky clerk again refuses to grant license"

Updating a long list of earlier entries on the refusal of the Rowan County, Kentucky refusal to grant marriage licenses to same-sex couples, yesterday the 6th Circuit upheld the district court order that she comply. Last evening How Appealing collected several stories on the 6th Circuit decision, plus the opinion.

This morning, however, an AP story in the Evansville Courier & Press reports:

MOREHEAD, Ky. - William Smith Jr. and James Yates strode Thursday morning into their county clerk's office for their third attempt to get a marriage license. The office of Rowan County Clerk Kim Davis once again denied them, despite an order from a federal appeals court issued hours earlier that upheld a judge's directive to issue the licenses.

Davis has refused to issue marriage licenses, citing her Christian faith and constitutional right to religious liberty, despite a U.S. Supreme Court ruling.

U.S. District Judge David Bunning had already ordered Davis to issue marriage licenses two weeks ago. He later delayed that ruling until Aug. 31 or until the U.S. 6th Circuit Court of Appeals issued a ruling. The appeals court did so on Wednesday, denying Davis' appeal.

But a deputy clerk in Davis' office told Smith and Yates that the office believes Bunning's delay remains in effect until Aug. 31. He refused to give his name or give them a license.

Posted by Marcia Oddi on August 27, 2015 10:09 AM
Posted to Courts in general

Ind. Gov't. - "Lawmakers hear testimony on body cameras" [Updated]

The Interim Study Committee on Government met yesterday, here is the agenda and here are the appendices for the Aug. 26 meeting. There does not appear to be an archived video of the meeting, it would be located here.

Niki Kelly of the Fort Wayne Journal Gazette has good coverage of the testimony yesterday in this story. Some quotes:

INDIANAPOLIS - As police agencies across the state consider adding body cameras, Indiana lawmakers heard testimony Wednesday about how to govern access to the sometimes controversial recordings.

The cameras have gained national attention following a number of questionable police shooting deaths.

"If you are going to use the tool for accountability then you have to make sure it is available," said Steve Key, executive director of the Hoosier State Press Association.

He said a wide investigatory records exemption is sometimes used by police to protect an officer accused of doing something wrong.

The issue was discussed at a meeting of the Interim Study Committee on Government. More testimony will come in September before recommendations to the full General Assembly.

Indiana police regularly decline to disclose a host of information through an "investigatory records" exception to Indiana public records law, said Indiana Public Access Counselor Luke Britt.

Body cameras aren't specifically covered by Indiana law right now but generally count as recorded material similar to dash camera videos.

Sen. Greg Taylor, D-Indianapolis, said the videos can be used to exonerate an officer quickly and head off potentially-expensive litigation.

Those savings could help cover the cost of archiving the video, which was mentioned as a concern. The Oakland Police Department records 7 terabytes of video every month, which could equate to $1,000 a month according to testimony.

A private consultant - and former Fort Worth police chief - said the cost to run that city's body camera program was $500,000 a year.

And there is much more involved than just the cost. Who keeps and is charged with redacting video? How long should a video be held before it is destroyed? What about videos showing the inside a person's home? How should videos with juveniles be handled?

Britt said jurisdiction are all over the board on the issue - from Seattle that puts everything online to South Carolina which passed a law saying no footage is public record.

"I think there is an argument to be made that there is a happy medium there," he said.

Key mentioned that Ohio is considering a state agency to handle all the video and requests so that police aren't in charge of redacting or editing video that could help or hurt them.

[Updated at 10:19 AM] Jill Disis of the Indianapolis Star has this story, headed "Should police body camera video be made public?." Some quotes:
“It’s a bit of a brave new world,” said Indiana Public Access Counselor Luke Britt, who was the first to offer testimony before the committee. As the state’s public-access statutes are now written, Britt said, police departments have broad discretion about the release of evidence. The question is whether body camera evidence should be handled differently.

Even without permanent funding for body cameras in Indianapolis, police officials already have wrestled with the public-access question. During a seven-month body camera pilot program that ended in July, an Indianapolis Metropolitan Police Department officer equipped with a camera shot and killed 35-year-old Mack Long after he ran from a traffic stop.

Footage of that incident was shown to Long’s family and to the media after a grand jury decided not to indict the officers involved in the shooting, but physical copies of the video have not been released. Long’s widow, Debbie Long, who testified about her husband’s case Wednesday, has called on officials to release the entire video.

“I knew that this video would give me closure on a lot of the questions I had,” Debbie Long said, adding that she could not understand why she was unable to view raw video footage. “I’m really, really confused about this whole transparency issue.”

IMPD Chief Rick Hite has called his department’s decision to release portions of the video “unprecedented.”

Britt said different states have different policies for the release of body camera footage.

In Seattle, for example, officials post all of their footage online but blur out faces and private information, Britt said. But in South Carolina, lawmakers this year passed legislation exempting such footage from public record disclosure laws – leaving the release of body camera video subject to court order.

Britt called both examples extremes, adding: “I think there’s probably an argument to be made that there’s a happy medium there.”

Steve Key, the executive director of the Hoosier State Press Association, said while department discretion can be important in cases where officials don’t want to compromise an investigation or taint evidence, it’s a power that needs to be used appropriately.

“It’s very easy to fall back on the investigatory records exception to keep that information that may put their fellow officer in a bad light,” Key said. “If they can use the discretion to say it’s an investigatory record, then you basically have lost the ability for body cams to be used as an accountability tool.”

Others who testified stressed massive financial and logistical issues with the collection and storage of body camera video.

Posted by Marcia Oddi on August 27, 2015 09:31 AM
Posted to Indiana Government

Wednesday, August 26, 2015

Ind. Courts - Federal Judge dismisses lawsuit against DCS over unpaid overtime

Marisa Kwiatkowski of the Indianapolis Star reports today:

A federal judge has dismissed a lawsuit filed by two Department of Child Services employees who claimed the state agency failed to pay them overtime.

In the lawsuit, Arlene Nunez and Veronica Martinez argued they were forced to work during their lunch hours, rarely got five hours of continuous sleep during on-call shifts and spent extensive time outside of regular work hours responding to emergencies, conducting investigations and writing reports — all without receiving earned overtime pay.

They filed a lawsuit against DCS last year in federal court in Hammond, claiming the state agency violated the Fair Labor Standards Act by denying them and other employees payment for overtime they worked.

U.S. District Court Judge Jon DeGuilio dismissed that lawsuit earlier this month. He ruled Indiana has not waived its right to “sovereign immunity” under the 11th Amendment, meaning the state can’t be sued in federal court over the Fair Labor Standards Act unless it agrees to be sued.

Here is a copy of Judge DeGuilio's 8-page opinion in Nunez v. Ind. DCS.

Here is a Sept. 25, 2014 ILB post, including a copy of the complaint.

Posted by Marcia Oddi on August 26, 2015 02:24 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Ind. toxic tort case today and a tax case of interest

In C.W. & E.W. v. Textron, Inc. (ND Ind., Simon), a 21-page opinion, Judge Kanne writes:

Government regulators and scientists agree: exposure to vinyl chloride poses serious health risks to humans. Vinyl chloride is a known carcinogen, mutagen, and genotoxin. But in what quantity and for how long must a human—in this case, two infant children—be exposed to vinyl chloride before those health risks materialize? The experts for C.W. and E.W., the minor children of Jason and Adele Wood, attempted to answer these difficult questions in this toxic-tort case.

Unfortunately for the Woods, their attempts fell short. The district court excluded each of the appellants’ experts, observing they did not use reliable bases to support their opinions. Having excluded the appellants’ experts, the district court then granted summary judgment in favor of Textron. It found that, without the experts’ opinions, the appellants could not prove general and specific causation— required elements under Indiana law in a toxic-tort case. Although we disagree with the district court’s rationale regarding causation, we nevertheless affirm. * * *

For the foregoing reasons, the district court properly applied the Daubert framework to the appellants’ experts. It did not abuse its discretion in excluding their testimony. Without expert testimony to prove general and specific causation, the appellants could not prove their case. Although we disagree with the district court that differential etiology can never be used to establish general causation, we nevertheless AFFIRM its final judgment.

In Craig Patrick v. Comm. Internal Revenue (US Tax Ct), a 7-page opinion, Judge Williams writes:

This case concerns the proper tax treatment of nearly $7 million that the government paid Craig Patrick for uncovering a Medicaid fraud scheme where the government paid in excess of $75 million in phony billings. Patrick and an associate filed a qui tam suit under the False Claims Act against Kyphon, Inc. alleging that the company induced hospitals to file claims for Medicare reimbursement “for unnecessary inpatient hospital stays.” The United States intervened and settled the case. For his role in initiating the suit Patrick received a relator’s share of the government’s recovery, totaling $5.9 million. Patrick also received $900,000 from the settlement of related qui tam actions against hospitals that overbilled Medicare.

Patrick and his wife, Michele, filed joint tax returns for 2008 and 2009 reporting his share of the qui tam recoveries as capital gains. The Commissioner of Internal Revenue issued deficiency notices, notifying the Patricks that the relator’s shares must be reported as ordinary income. The Tax Court upheld that determination. We agree with the Commissioner and the Tax Court that the relator’s share of a qui tam recovery is not the result of a “gain from the sale or exchange of a capital asset.” Rather, Patrick’s relator’s shares are a reward for filing the suit against Kyphon and the hospitals and must be treated as ordinary income.

Posted by Marcia Oddi on August 26, 2015 01:55 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 8 NFP memorandum decisions)

For publication opinions today (4):

In Lydia Lanni v. National Collegiate Athletic Association, University of Notre Dame Du Lac, and United State Fencing Association, Inc., a 30-page opinion, Judge Najam writes:

Lydia Lanni appeals from the trial court’s entry of summary judgment for the National Collegiate Athletic Association (“NCAA”) and the United States Fencing Association, Inc. (“USFA”). In her complaint, Lanni alleged that the NCAA and the USFA sponsored a fencing competition at the University of Notre Dame (“Notre Dame”)[1] in South Bend, which Lanni attended as a student-athlete and at which she suffered a serious eye injury while standing near one of the competitions. She further alleged that her injury resulted from negligence on the part of the NCAA, the USFA, and Notre Dame.

We address the following issues in this appeal:

1. Whether the NCAA owed Lanni a duty of care.
2. Whether the USFA owes a duty of care to those who participate in fencing matches that are played under the USFA’s rules and that are refereed by USFA-trained referees.
3. Whether the trial court erred when the court denied Lanni’s motion for a change of judge on remand from this court following our reversal of an earlier entry of summary judgment. * * *

In sum, the evidence most favorable to Lanni fails to demonstrate that either the NCAA or the USFA owed her a duty of care. Lanni also was not entitled to a new judge following this court’s remand in Lanni I. Thus, we affirm the trial court’s entry of summary judgment for the NCAA and the USFA.
________________
[1] Notre Dame is also a named defendant in Lanni’s action; Lanni’s claims against Notre Dame remain pending in the trial court.

In Seth Curtis v. State of Indiana, a 20-page opinion, Judge Bradford writes:
On appeal, Curtis contends that the State presented insufficient evidence to sustain his convictions. He also contends that the imposition of judgment of conviction against him and a sentence for both of the armed robbery counts and for both the armed robbery and auto theft counts violated the single larceny rule. We affirm. * * *

Concluding that the evidence is sufficient to sustain Curtis’s convictions and that the imposition of a judgment of conviction and sentence for each of Counts I, II, and IV did not violate the single larceny rule, we affirm the judgment of the trial court.

In Jesse Wharton v. State of Indiana, a 5-page opinion, Judge May writes:
Jesse Wharton appeals his convictions of level 6 felony operating a vehicle while intoxicated with a prior conviction and level 6 felony operating a vehicle with an alcohol concentration equivalent (ACE) of .08 or more with a prior conviction. Wharton asserts his convictions subjected him to double jeopardy because the same act was the basis for both offenses. We affirm in part, vacate in part, and remand with instructions. * * *

Wharton’s protection from double jeopardy was violated by two convictions based on the same act. Therefore, we affirm his conviction and sentence for operating a vehicle while intoxicated, we vacate the conviction of and sentence for operating a vehicle with an ACE of .08 or more with a prior conviction, and we remand to the trial court to amend its order.

In Bruce Ryan v. State of Indiana , a 16-page opinion, Judge Najam writes:
Following this court’s reversal of Bruce Ryan’s convictions on direct appeal but before this court’s opinion was certified as final, Ryan petitioned the trial court for an appeal bond. The court granted Ryan’s petition but placed him under numerous restrictions, which were supervised by the local community corrections program. The Indiana Supreme Court then reversed this court’s decision and reinstated Ryan’s convictions. See Ryan v. State, 9 N.E.3d 663, 673 (Ind. 2014) (“Ryan I”). Ryan spent a total of 429 days under the conditions of his appeal bond, and he never violated any of those conditions. As such, following the reinstatement of his convictions, Ryan moved the trial court for an award of credit time1 for the time he had served under the conditions of the bond.

Ryan now appeals the trial court’s denial of that request, and he and the State present numerous arguments for our review. We hold, as a matter of first impression, that credit time for a defendant’s release on an appeal bond is prohibited under Indiana law. We also hold that, insofar as his arguments require this court to review the conditions of his release on his appeal bond, Ryan’s arguments are moot. Indiana Appellate Rule 18 provided Ryan with clear and immediate opportunity to have the court on appeal review the conditions of his release when they were imposed, but Ryan did not exercise that option. He may not now ask this court to review the conditions of his release under the guise of a request for credit time. Thus, we affirm the trial court’s judgment. * * *

In sum, we hold that Indiana Code Section 35-33-9-5(c) and Appellate Rule 18 prohibit an award of credit time for the time a defendant is released on an appeal bond, regardless of the conditions of the defendant’s release. Cf. Kindred v. State, 172 Ind. App. 645, 648-49, 362 N.E.2d 168, 170-71 (1977) (holding that the defendant had the right to surrender himself while released on his appeal bond in order to accrue credit time). We also hold that, insofar as Ryan’s arguments require this court to review the conditions of his release on his appeal bond, Ryan’s challenge is untimely. Ryan could have sought, but chose not to seek, immediate review of the conditions of his release pursuant to Appellate Rule 18. Having forfeited that remedy, Ryan’s challenge to the conditions of his release is now moot. Thus, we affirm the trial court’s denial of Ryan’s motion for credit time.

NFP civil decisions today (4):

In the Matter of: R.F. (Minor Child), Child in Need of Services and A.P. (Mother) v. The Indiana Department of Child Services (mem. dec.)

Runningman, LLC v. Joshua Nagy and Robert Sak (mem. dec.)

In the Matter of: J.S. (minor child), a Child in Need of Services, and T.S. (mother) v. The Indiana Department of Child Services (mem. dec.)

In Re the Paternity of H.A., A.A. v. R.M. and B.M. (mem. dec.)

NFP criminal decisions today (4):

Patrick Kene Talley v. State of Indiana (mem. dec.)

Malcolm M. Pettis v. State of Indiana (mem. dec.)

Kevin Singh v. State of Indiana (mem. dec.)

Titus D. Fields v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 26, 2015 01:20 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one opinion today, re mechanic's liens and attorney's fees

In Goodrich Quality Theaters, Inc., and Roncelli, Inc. v. Fostcorp Heating and Cooling, Inc., Wilson Iron Works, Inc., and Johnson Carpet, Inc., a 10-page, 5-0 opinion, Justice David writes:

The question before us is whether, under Indiana’s mechanic’s lien statute, lienholders are entitled to collect attorney’s fees incurred in foreclosing upon their liens from a party who posts a surety bond securing the liens. By the statute’s plain language, under the circumstances our answer is yes.

Posted by Marcia Oddi on August 26, 2015 12:57 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on "Guilty verdict in federal Facebook threats case"

Updating this July 5th ILB post, Steven Porter of the Lafayette Journal & Courier reported late Monday:

A man convicted of violating federal law with a violent Facebook post he wrote last year now has a jury trial scheduled in Tippecanoe Superior Court 1 to determine whether his post violated state law as well.

Samuel Bradbury, 23, of Pine Village is scheduled to appear for trial beginning Nov. 17 on four felony charges of intimidation.

His alleged offenses are defined by Indiana law as the communication of a threat to another person, with the intent of causing an evacuation, placing the victim "in fear of retaliation for a prior lawful act" or causing the victim to engage in conduct against his or her will.

Bradbury's federal conviction was entered on the basis that his post — which his parents and defense attorneys defend as satire — constituted maliciously conveyed false information concerning an attempt to carry out an attack with fire or explosives.

Posted by Marcia Oddi on August 26, 2015 09:28 AM
Posted to Indiana Courts

Ind. Gov't. - More on: First it was the big boxes, now the CVS stores ...

Updating this post from yesterday, WTTV4's Jill Glavan reported very late last evening in a story headed "Assessor calls tax court ruling in favor of Bloomington CVS store ‘sickening.’" A few quotes:

BLOOMINGTON, Ind. (Aug. 25, 2015) — A tax court ruled in favor of a CVS store in Bloomington, the latest in a series of cases that has county assessors calling for action.

The ruling, by the Indiana Board of Tax Review, lowered the property assessment on the CVS store by more than $1 million a year. It means Monroe County could owe hundreds of thousands in back taxes and the store will now pay less in property taxes.

“It was sickening and it still is,” Monroe County Assessor Judy Sharp said.

Sharp has been speaking out against big chain stores that are using what’s been dubbed the “dark box” method to lower their taxes. Those stores argue that their property should be assessed similarly to vacant properties, significantly dropping their property taxes.

“It’s going to be a lot of money,” Sharp said.

That money could ultimately come from homeowners.

“As one type of property pays less, other people pay more,” said David Bottorff, Executive Director of the Association of Indiana Counties.

Posted by Marcia Oddi on August 26, 2015 08:31 AM
Posted to Indiana Government

Ind. Courts - Still more on "Former Richmond attorney arrested on 26 counts of theft"

Updating this ILB post from June 30th, Mike Emery of the Richmond Palladium-Item reported late yesterday:

A special judge has ruled against a former local bankruptcy attorney’s motion to dismiss 21 felony charges against him.

Charles R. Hyde Jr. was charged with 26 counts of Class D felony theft and one count of Class C felony corrupt business influence after he allegedly collected fees from clients without completing their bankruptcies.

Special Judge Marianne Vorhees of Delaware County heard arguments earlier this month on the defense’s motions to dismiss the charges, which she has denied. However, a prosecution motion to dismiss six of the theft charges has been granted. The defense claimed Hyde had referred those clients to another attorney for the completion of their bankruptcies. * * *

A trial is scheduled for 9 a.m. on Nov. 16 in Wayne County Superior Court I.

Hyde, who was arrested on Aug. 7, 2013, resigned in May 2012 from the practice of law with the Indiana bar through a filing to the Indiana Supreme Court. He is not permitted to petition for reinstatement in Indiana until five years after his resignation.

Posted by Marcia Oddi on August 26, 2015 08:22 AM
Posted to Indiana Courts

Tuesday, August 25, 2015

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

In Eric Harden v. Marion County Sheriff's Dept. (SD Ind., Pratt), a 17-page opinion, Judge Kennelly (ND Ill., sitting by designation) writes:

In 2012, Eric Harden sued the Marion County Sheriff’s Department for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e‐3(a). He alleged that the Sheriff’s Department terminated him in retaliation for testifying on behalf of African‐ American police officers in a race discrimination investigation. The district granted summary judgment for the Sheriff’s Department. Harden now appeals that decision. We affirm.

Posted by Marcia Oddi on August 25, 2015 06:56 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Is Indiana law explicitly banning taking photographs in voting booth unconstitutiional?

"Selfies in Voting Booths Raise Legal Questions on Speech and Secrecy" is the heading of a long Aug. 24th NY Times story by Erik Eckholm that reports in part:

Excited first-time voters; those proud to show that they voted for or against, say, President Obama; and those so disgusted that they wrote in the name of their dead dogs have all been known to post snapshots of their ballots on Twitter or Facebook.

Now, a legal fracas has erupted over whether the display of marked ballots is a constitutionally protected form of speech and political expression — as a federal court in New Hampshire declared this month, overturning a ban on such photographs — or a threat to the hallowed secret ballot that could bring a new era of vote-buying and voter intimidation.

The New Hampshire case is unlikely to be the last to grapple with what are commonly called ballot selfies, whether they include an image of the phone user or not. Numerous states have laws to protect voter secrecy, drafted in an earlier era, that could be construed to ban ballot photographs, said Gilles Bissonnette, the legal director of the American Civil Liberties Union of New Hampshire, which challenged the New Hampshire ban.

A new law in Indiana
explicitly bans taking photographs in a voting booth, and rights advocates there are mulling a similar challenge. At the same time, Maine, Oregon and Utah have recently revised their laws, effectively permitting the posting of these images.

In New Hampshire, officials and legislators were so alarmed by the dangers of cellphone photos in voting booths that they outlawed them in 2014, setting a fine of up to $1,000 for showing photographs of completed ballots to others or posting them on social media. * * *

On Aug. 11, in a 42-page opinion that reviewed the history of ballot secrecy and voter intimidation, Judge Paul Barbadoro of Federal District Court in Concord struck down the law.

The state provided no evidence of “an actual or imminent problem with images of completed ballots being used to facilitate either vote buying or voter coercion,” Judge Barbadoro said.

“The new law is invalid,” he said, “because it is a content-based restriction on speech that cannot survive strict scrutiny,” the most stringent standard for judging infringements on fundamental rights.

Many constitutional scholars praised the decision. So heads snapped last week when Richard L. Hasen, a prominent elections expert at the School of Law at the University of California, Irvine, called Judge Barbadoro’s opinion misguided and said allowing voting-booth photography posed a real risk.

In “Why the Selfie is a Threat to Democracy,” an article posted last Tuesday by Reuters and on the Election Law Blog he edits, Mr. Hasen wrote that the court decision “might seem like a victory for the American Way.”

“But the judge made a huge mistake,” he continued, “because without the ballot-selfie ban, we could see the re-emergence of the buying and selling of votes — and even potential coercion from employers, union bosses and others.”

ILB: Here is the new Indiana law, SECTION 112 of SEA 466-2015 (p.89):
Sec. 17.5. (a) Voters may use cellular telephones or other electronic devices in the polls as long as
electioneering or loud or disruptive conversations do not occur.
(b) A voter may not do the following:
(1) Take a digital image or photograph of the voter's ballot
while the voter is in a polling place, an office of the circuit
court clerk (under IC 3-11-10-26), a satellite office established
under IC 3-11-10-26.3, or a vote center established under
IC 3-11-18.1-4, except to document and report to a precinct
election officer, the county election board, or the election
division a problem with the functioning of the voting system.
(2) Distribute or share the image described in subdivision (1)
using social media or by any other means.

Posted by Marcia Oddi on August 25, 2015 12:51 PM
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 6 NFP memorandum decisions)

For publication opinions today (1):

In John B. Davis, Sr., as Administrator of the Estate of John B. Davis, Jr., Deceased v. Edgewater Systems for Balanced Living, Inc., a 10-page opinion, Judge Riley writes:

Davis contends that the trial court abused its discretion in granting Edgewater’s motion for judgment on the pleadings pursuant to T.R. 12(C). Specifically, he claims that Edgewater is not civilly immune from the lawsuit. * * *

In its motion, Edgewater advanced that it was entitled to civil immunity for the claims asserted against it based upon two sub-sections of the mental health care provider immunity statute, included at I.C. §§ 34-30-16-1 & -2. * * *

Here, Edgewater asserted a civil immunity defense in its motion for judgment on the pleadings. By claiming immunity, Edgewater is not relying on a procedural defect in Davis’ Complaint, rather Edgewater is advancing a “determination of the substantive merits of the controversy.” See id. Accordingly, any amendment of the Complaint will not alter the existence of Edgewater’s civil immunity defense.

Based on the foregoing, we affirm the trial court’s Order granting Edgewater’s motion for judgment on the pleadings, and we deny Davis’ request for an opportunity to amend his Complaint. Affirmed.

NFP civil decisions today (3):

In the Matter of: L.E. III, B.E. & A.E. (Minor Children), Children in Need of Services and E.E. (Mother) & L.E. (Father) v. The Indiana Department of Child Services (mem. dec.)

William G. Zartman, Jr., and Marilyn M. Zartman, et al. v. Donald R. Towne and Larry J. Towne, and State of Indiana (mem. dec.)

K.L. v. Review Board of the Indiana Department of Workforce Development and Indiana University Health (mem. dec.)

NFP criminal decisions today (3):

Darrell Mattingly v. State of Indiana (mem. dec.)

Harold Baker v. State of Indiana (mem. dec.)

Jose Urbano v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 25, 2015 12:39 PM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - First it was the big boxes, now the CVS stores ... [Updated again]

Updating a long list of ILB entries on appeals of the assessments of big box stores, Ernest Rollins of the $$ Bloomington Herald Times reports today in a story that begins:

The Indiana Board of Tax Review has ruled in favor of CVS on its appeal of the county’s assessments of its College Avenue location from 2009 to 2013.

The decision, handed down last week, could be the first of many, as other CVS stores in Monroe County have also filed appeals for previous tax years, county Auditor Steve Saulter said.

ILB: It appears no August decisions of the Tax Board are yet posted online. The ILB has requested a copy of the CVS ruling.

[Updated at 1:10 PM] The ILB emailed the Tax Board (at "contact us") a few minutes ago:

Could you email a copy of the tax board decision two weeks ago on the assessment of the Bloomington CVS?
There was a prompt response:
There are several CVS decisions that were issued in Monroe County If you are not a part to it or the Attorney of record you would need to make a request to the Board because of Confidential information.
[Updated at 2:21 PM] Thanks to a call from the IBTR counsel, I now understand the process: The parties have 2 weeks after a decision is reached to identify any confidential information that needs to be redacted. Once that is done, the opinion will be publicly available and the ILB will receive a copy for posting.

Posted by Marcia Oddi on August 25, 2015 12:12 PM
Posted to Indiana Government

Ind. Courts - Judge Friedlander retirement ceremony this Thursday

From a news release:

The Court of Appeals will conduct a retirement ceremony for Judge Ezra H. Friedlander on Thursday, Aug. 27 at 2:30 p.m. in the Indiana Supreme Court courtroom. Chief Judge Nancy H. Vaidik will preside.

Judge Friedlander joined the court on Jan. 7, 1993 and is retiring after 50 years in the practice of law. He will continue to serve the state of Indiana as a part-time senior judge on the Court of Appeals.

Judge Friedlander will be succeeded by Marion Superior Court Judge Robert R. Altice, Jr., who is Governor Mike Pence’s first appellate court appointment. Judge Altice will take the oath of office in a private ceremony on Sept. 1, followed by a public robing ceremony in the Supreme Court courtroom on Sept. 21.

Posted by Marcia Oddi on August 25, 2015 12:08 PM
Posted to Indiana Courts

Ind. Courts - "Recognize when a judge needs help & take action early. Don't wait for call from Judicial Qualifications to intervene."

Adrienne Meiring, counsel to the Indiana Commission on Judicial Qualifications, has this article , titled "Time to Ask for Help," in the current issue of Indiana Court Times.

Posted by Marcia Oddi on August 25, 2015 10:16 AM
Posted to Courts in general

Ind. Gov't. - Pence Names Carol Comer as new IDEM head

From a news release:

Governor Mike Pence today announced that Carol Comer will serve as Commissioner of the Indiana Department of Environmental Management (IDEM), effective August 28, 2015. Comer currently serves as Chief of Staff at IDEM. This announcement comes after current IDEM Commissioner Tom Easterly announced his retirement in mid-July.

“Today I’m pleased to announce Carol Comer as Commissioner for the Indiana Department of Environmental Management,” said Governor Pence. “I know that with Carol’s extensive experience, she will continue to serve Hoosiers with integrity and dedication and follow in the footsteps of Commissioner Tom Easterly in ensuring healthier environments in all corners of our state.”

Prior to her role as Chief of Staff, she served at IDEM as General Counsel, where she oversaw approximately thirty attorneys and support staff. Previously, she served as a senior administrative law judge for the Indiana Board of Tax Review and as an Administrative Law Judge with the Indiana Utility Regulatory Commission. Comer started her environmental law career at Plews and Shadley in Indianapolis and later at Lewis and Roca in Phoenix. * * *

Comer received her undergraduate degree from Indiana University School of Business and a joint master’s and law degree simultaneously from Indiana University School of Public and Environmental Affairs and Indiana University Robert H. McKinney School of Law, where she was the law school’s first Environmental Law Fellow.

In addition to Comer’s announcement as Commissioner, Governor Pence today announced that Bruno Pigott will serve as IDEM’s Chief of Staff. Pigott currently serves as Deputy Chief of Staff and Assistant Commissioner in the Office of Water Quality, where he has served since 2005. Previously, Pigott served as Chief of the Permits Branch and as Chief of the Compliance Branch in the Office of Water Quality. He received his undergraduate degree from Michigan State University and his master’s degree from Indiana University – Purdue University Indianapolis.

Posted by Marcia Oddi on August 25, 2015 10:10 AM
Posted to Environment | Indiana Government

Ind. Decisions - A third Indiana decision yesterday from 7th Circuit

In D. S. v. East Porter County School Corp (ND Ind., Cherry, Magistrate Judge), an 11-page opinion, Judge Bauer writes:

Plaintiff-appellants, D.S. and her parents, Debbie Lynn Stahl and George M. Stahl, brought suit under 42 U.S.C. § 1983 against defendant-appellees, East Porter County School Corporation and Morgan Township Middle/ High School (collectively “East Porter”), and Porter Township School Corporation and Boone Grove Middle School (collectively “PTSC”), alleging various constitutional and state law claims. East Porter and PTSC filed separate motions for summary judgment, which the district court granted in full. D.S. and the Stahls appeal the district court’s grants of summary judgment as to their constitutional claims only. We affirm.

Posted by Marcia Oddi on August 25, 2015 09:45 AM
Posted to Ind. (7th Cir.) Decisions

Monday, August 24, 2015

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

In Terrence Preddie v. Bartholomew Consolidated Schools (SD Ind., Pratt), a 30-page per curiam opinion, the panel (Flaum, Ripple, Williams) writes:

Terrence Preddie worked as a fifth-grade teacher at Columbus Signature Academy-Codrea Elementary School—part of the Bartholomew Consolidated School Corporation (“BCSC”)—during the 2010–2011 school year. After Mr. Preddie was absent twenty-three times, the BCSC did not renew his contract. Mr. Preddie is diabetic, and his son, Elliot, suffers from sickle cell anemia. Mr. Preddie is also African-American. Following the non-renewal of his contract, Mr. Preddie filed suit against the BCSC in state court, alleging claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act, (“FMLA”), 42 U.S.C. § 1981, and the Civil Rights Acts of 1866, 1871, and 1991. The case was removed to the Southern District of Indiana, and the district court granted summary judgment in favor of the BCSC on all of Mr. Preddie’s claims. We affirm the district court’s judgment for the BCSC except as it relates to Mr. Preddie’s FMLA claims. With respect to Mr. Preddie’s FMLA interference and retaliation claims, we believe that genuine issues of material fact preclude judgment for the BCSC on the present record. We therefore reverse the district court’s judgment on those claims and remand for further proceedings in the district court. * * *

For the foregoing reasons, we affirm the judgment of the district court with the exception of its judgment for the BCSC on Mr. Preddie’s FMLA claims. With respect to those claims, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion. The parties shall bear their own costs in this appeal.

Posted by Marcia Oddi on August 24, 2015 04:37 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Common Cause asks Attorney General to file amicus brief in Indiana House public records case

The ILB has received this note:

This letter was hand delivered by Common Cause of Indiana to the AG’s office today, asking AG Zoeller to file an amicus brief in the soon-to-be-filed appeal in CAC, et al. v. Koch in support of the governmental transparency policies embodied in APRA similar to the one he recently filed in ESPN v. Univ. of Notre Dame Police Department.
Here is Aug. 14th ILB post on the news release of Attorney General Zoller re the ESPN case, headed "Attorney General Zoeller urges Court to make police report records public."

Here is a long list of ILB posts
on the Indiana House public records case.

From today's letter from Julia Vaughn of Common Cause Indiana:

Dear Attorney General Zoeller:

I am writing to thank you for your recent advocacy on behalf of Indiana’s Access to Public Records Act (APRA) and to request that you continue your strong commitment to transparency in Indiana by weighing in on the issue of public access to legislative emails – the matter over which we and two other public interest advocates have initiated litigation, Marion Superior Court Cause No. 49D14-1504-PL-012401.

It was absolutely appropriate for your office to submit an amicus brief in the case involving the records of the Notre Dame Police Department. In that brief you state that “The trial court’s decision runs contrary to the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.” You also note that your office “frequently advocates in favor of these policy interests, arguing for greater transparency in government and clear and consistent application of the Act.”.

This is not the first time you have publicly championed open government. When your office co-hosted public forums to educate government officials and others about APRA, you stated, “To gain and maintain the trust of the public, government must be open and transparent in the way it conducts the public’s business. If government officials huddle behind closed doors or refuse to release public records, then they won’t enjoy the public’s trust.”

The House Republican Caucus’ refusal to release legislative emails and to recognize that they are indeed subject to the Access to Public Records Act runs counter to an opinion from the Public Access Counselor and harms the public trust. If the decision issued in Marion County earlier this month is allowed to stand, the logical outcome is a legislature with virtually unchecked power, free to ignore any public records request and to conduct the people’s business in secrecy. Essentially, the curtains are drawn tight around the legislative process, depriving Hoosiers of their right to government that is transparent and ultimately accountable.

Your past actions indicate you are a strong supporter of open government. We hope you will be consistent in that role and agree to support transparency by putting the weight of your office behind our challenge to legislative secrecy.

Posted by Marcia Oddi on August 24, 2015 04:06 PM
Posted to GA and APRA | Indiana Government

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

In JMB Manufacturing, Inc. v. Harrison Manufacturing, LLC (SD Ind., Pratt), a 24-page opinion, Judge Hamilton writes:

This case presents a merchant’s creative effort to avoid the limited remedies that contract law provides for a seller’s delivery of non-conforming goods. After the seller delivered about $90,000 worth of nonconforming wood products, the buyer sought recovery from both the seller and its president personally for tort damages on a tort theory, that they negligently misrepresented the quality of the delivered goods.

The district court ruled in favor of the buyer and awarded damages of more than $2.7 million on the theory that the non-conforming goods caused the complete destruction of the buyer’s business. This damages theory echoed the proverb of Poor Richard’s Almanack (“A little neglect may breed mischief; for want of a nail, the shoe was lost; for want of a shoe the horse was lost; for want of a horse the rider was lost; for want a rider the battle was lost.”), and Shakespeare’s story of Richard III, where the loss of a horse led in turn to the loss of a battle, the death of a king, and the loss of a kingdom. Cf. Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145 (1854) (damages for breach of contract limited to consequences reasonably contemplated by both parties when they made contract).

We reverse the award of damages against the seller and the seller’s president, but for reasons that do not depend on the flawed “want of a nail” theory. Under Indiana law, a buyer who has received non-conforming goods cannot sue a seller for negligent misrepresentation to avoid the economic loss doctrine, which limits the buyer to contract remedies for purely economic losses. See Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., 929 N.E.2d 722 (Ind. 2010). Second, there is no basis for transforming the buyer’s breach of contract claim into a tort claim for negligent misrepresentation to hold the seller’s president personally liable. See Greg Allen Construction Co., Inc. v. Estelle, 798 N.E.2d 171 (Ind. 2003). In all other respects, we affirm the judgment of the district court. * * *

We REVERSE the district court’s judgment on Child Craft’s negligent misrepresentation counterclaim against Ron Bienias and Summit and direct the district court to enter final judgment in favor of Bienias and Summit on that counterclaim. In all other respects, we AFFIRM the district court’s judgment. All parties shall bear their own costs on appeal.

Posted by Marcia Oddi on August 24, 2015 01:39 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (2):

In Benny Harris v. Tonya Harris (n/k/a Keith) , a 16-page, 2-1 opinion, Judge Barnes concludes:

Because the trial court erroneously ordered the division of Benny’s Tier I railroad retirement benefits when the account reaches pay status, we reverse and remand with instructions to strike that language from the order. However, Benny has not established that the trial court abused its discretion in dividing the marital estate, and Tonya has not established that an award of appellate attorney fees is warranted. We affirm in part, reverse in part, and remand. Affirmed in part, reversed in part, and remanded.

Najam, J., concurs.
Kirsch, J., concurs in part and dissents in part with opinion [which begins at p. 16, with] I fully concur with my colleagues' holding that the trial court erred by ordering Husband to make an off-setting payment to Wife for his future receipt of the Tier I benefits. I reach a different conclusion regarding the division of the remainder of the marital estate, and for such reason, I respectfully dissent.

In Thomas Missler and Allison Missler v. State Farm Insurance Company and Indiana Restoration & Cleaning Services, Inc., a 13-page opinion, Judge Kirsch writes:
We conclude that, based on the designated evidence, there remain genuine issues of material fact as to whether the terms of the Contract entered into by the Misslers with IRCS were so oppressively one-sided and harsh as to make the Contract unconscionable. Therefore, the trial court erred when it granted summary judgment in favor of IRCS. We remand to the trial court for further proceedings to determine whether the Contract between the Misslers and IRCS was enforceable. Affirmed in part, reversed in part, and remanded.
NFP civil decisions today (3):

In the Matter of the Term. of the Parent-Child Relationship of T.K., Mother, J.W.R., Father, and K.R., J.R., and N.K., Children: T.K. and J.W.R. v. Ind. Dept. of Child Services (mem. dec.)

Dennis Gifford and Mary Gifford v. Jeffrey Wicks and James Ector (mem. dec.)

Kirsten L. Nolan v. Matthew A. Huff (mem. dec.)

NFP criminal decisions today (6):

James Johnson v. State of Indiana (mem. dec.)

Patrick D. Keith v. State of Indiana (mem. dec.)

Robert A. Olson v. State of Indiana (mem. dec.)

Hans Gunther Oberth v. State of Indiana (mem. dec.)

Eugene Hill v. State of Indiana (mem. dec.)

Donnis K. Wilkerson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 24, 2015 01:14 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 21, 2015

Here is the Clerk's transfer list for the week ending Friday, August 21, 2015. It is one page (and 1 case) long.

One transfer was granted last week:

  • Term. Of Parent-Child Rel. of K.E.; J.E., S.S. v. IDCS - transfer was granted, with opinion, on August 20th. See the ILB summary here.

Posted by Marcia Oddi on August 24, 2015 11:34 AM
Posted to Indiana Transfer Lists

Ind. Courts - Use of grand juries in Indiana explored

Jill Disis of the Indianapolis Star reports today in a long story headed "Families seek answers about loved ones’ deaths in police shootings." Some quotes:

The routine use of grand juries to investigate officer-involved shootings keeps evidence and testimony secret, even from the families of the deceased. Many such families are left with unanswered questions, forced to fight the system or blindly accept the version of events laid out in secret hearings before anonymous jurors. * * *

Citing other issues with grand juries, California Gov. Jerry Brown this month signed legislation that would prevent grand jury hearings from being used in officer-involved deaths.

Prosecutors say grand juries have a purpose. And some say confidentiality is important to protect the identities of witnesses who would otherwise be unwilling to testify, as well as the officers whose reputations could be tarnished, even if their actions do not cross legal lines.

In the post-Ferguson era, however, when the fairness of numerous shootings have been called into question, some say it’s time to ask if that confidentiality comes at too high a price. * * *

[Marion County proescutor Terry] Curry said his office is bound by a state confidentiality statute from releasing any information about what the jury considered — a statute that makes it a class B misdemeanor for “a person who has been present at a grand jury proceeding” to knowingly or intentionally disclose “any evidence or testimony given or produced” to anyone who was not at the hearing.

Curry said the confidentiality was important because it protects not only the jurors, but reluctant witnesses. In the case of an officer-involved shooting, those witnesses could include police officers.

In Indiana, Curry said, some information from grand jury investigations can be made public by the police department, as recently happened in Long’s case. “We determined that once there was no indictment, those items reverted to the owner of the property — in that case, IMPD,” Curry said, “and it was their determination as to whether that should be released.” * * *

One criticism of grand juries is that prosecutors, who rely on close relationships with police departments, can influence the outcomes, while enjoying the political cover that a panel of anonymous citizens provides.

And that was the rationale behind the changes in California’s law.

The Marion County Prosecutor’s Office has presented 30 police-action fatality cases to grand juries since 2008, none of which have resulted in indictments. Those cases are not limited to shootings and include officers from a variety of agencies, not just IMPD, office spokeswoman Peg McLeish said.

In this Jan. 2, 2015 ILB entry, headed "Bill to abolish use of grand juries by county prosecutors back again this session," included these quotes from an earlier Star story:
n Marion County, the use of grand juries is rare. The agency averages about four grand jury indictments out of about 40,000 criminal cases filed annually in the past five years.

The Marion County cases typically involve issues of self-defense, such as Schlenkert's case, police-action shootings and public corruption. The cases involve witnesses with conflicting versions of what happened and long-term investigations with multiple people involved, Marion County Prosecutor Terry Curry said.

This very long 2013 story in the South Bend Tribune, reported by Virginia Black, is headed "Little-understood grand jury system under debate."

The ILB also had several posts in 2010 under the heading "Grand jury can be used to insulate prosecutor." The first post in the series quoted a John Tuohy Star story that began:

For delicate cases, grand juries can be a prosecutor's best friend.

"Historically, it has been used to provide political coverage on hot-potato issues," said defense attorney Robert Hammerle. "If a prosecutor has a sensitive political issue, sending it to the grand jury is like the legislature sending an issue to a blue-ribbon commission."

By taking the Carmel High School cases to a grand jury, Hamilton County Prosecutor Sonia Leerkamp didn't have to make a controversial decision herself.

"The grand jury can help inoculate prosecutors against criticism in the community," said IU law Professor Norman Lefstein.

A grand jury is a panel of citizens that convenes in secret to hear evidence presented by a prosecutor and decide whether probable cause exists to charge someone with a crime.

Posted by Marcia Oddi on August 24, 2015 10:34 AM
Posted to Indiana Courts

Ind. Law - "'Did we go to far?' County prosecutors seek tougher penalties for drug dealers"

Maureen Hayden, CNHI Statehouse Bureau Chief, reported August 21st in the Washington Times Herald (here via the Indiana Economic Digest) - the long story begins:

INDIANAPOLIS – Facing the sprawling problem of heroin and opioid abuse, prosecutors want to restore tough penalties for drug dealers and increase the threat of jail time for addicts who resist treatment.
A call for stiffer penalties comes just two years after lawmakers significantly reduced drug sentences in hopes of shrinking the prison population.

But it also comes as Indiana faces a record number of deaths linked to heroin and opiate use - they've more than tripled in the past decade - and fights a continuing problem with methamphetamine.

“We need to ask the question, 'Did we go too far?'” said David Powell, head of the Indiana Prosecuting Attorneys Council.

He plans to put the question to a legislative committee charged with looking at the impact of allowing the distribution of clean needles to intravenous drug users.

The needle-exchange law was prompted by an HIV outbreak in rural Scott County among drug users injecting the opiate-based painkiller Opana. Since the law's passage, 19 counties plagued by opiate abuse have initiated efforts to begin needle-exchanges to ward off HIV and stop the spread of Hepatitis C.

The Interim Committee on Public Health, scheduled to meet Monday, will also look at a sentencing reform law that reduced drug penalties across the board in order to shrink prison populations and costs.

Posted by Marcia Oddi on August 24, 2015 10:07 AM
Posted to Indiana Law

Law - Police "used the phone tracker, commonly known as a stingray, to locate the perpetrators of routine street crimes"

Here is a long list of ILB posts on the "stingray" phone tracker, beginning with a 2013 post headed "Indiana State Police tracking cellphones — but won’t say how or why."

Today USAToday has a long article by Brad Heath, headed "Police secretly track cellphones to solve routine crimes." Some quotes:

BALTIMORE — The crime itself was ordinary: Someone smashed the back window of a parked car one evening and ran off with a cellphone. What was unusual was how the police hunted the thief.

Detectives did it by secretly using one of the government’s most powerful phone surveillance tools — capable of intercepting data from hundreds of people’s cellphones at a time — to track the phone, and with it their suspect, to the doorway of a public housing complex. They used it to search for a car thief, too. And a woman who made a string of harassing phone calls.

In one case after another, USA TODAY found police in Baltimore and other cities used the phone tracker, commonly known as a stingray, to locate the perpetrators of routine street crimes and frequently concealed that fact from the suspects, their lawyers and even judges. In the process, they quietly transformed a form of surveillance billed as a tool to hunt terrorists and kidnappers into a staple of everyday policing.

The suitcase-size tracking systems, which can cost as much as $400,000, allow the police to pinpoint a phone’s location within a few yards by posing as a cell tower. In the process, they can intercept information from the phones of nearly everyone else who happens to be nearby, including innocent bystanders. They do not intercept the content of any communications.

Dozens of police departments from Miami to Los Angeles own similar devices. A USA TODAY Media Network investigation identified more than 35 of them in 2013 and 2014, and the American Civil Liberties Union has found 18 more. When and how the police have used those devices is mostly a mystery, in part because the FBI swore them to secrecy. * * *

In court records, police routinely described the phone surveillance in vague terms — if they mentioned it at all. In some cases, officers said only that they used “advanced directional finding equipment” or “sophisticated electronic equipment" to find a suspect. In others, the police merely said they had “located” a suspect’s phone without describing how, or they suggested they happened to be in the right place at the right time.

Such omissions are deliberate, said an officer assigned to the department’s Advanced Technical Team, which conducts the surveillance. When investigators write their reports, “they try to make it seem like we weren’t there,” the officer said.

Public defenders in Baltimore said that robbed them of opportunities to argue in court that the surveillance is illegal. “It’s shocking to me that it’s that prevalent,” said David Walsh-Little, who heads the felony trial unit for Baltimore’s public defender office. “We can’t challenge it if we don’t know about it, that’s sort of the horror of it.”

Defendants usually have a right to know about the evidence against them and to challenge the legality of whatever police search yielded it. Beyond that, Maryland court rules generally require the government to tell defendants and their lawyers about electronic surveillance without being asked. Prosecutors say they are not obliged to specify whether a stingray was used. Referring to direction-finding equipment “is sufficient to place defense counsel on notice that law enforcement employed some type of electronic tracking device,” Ritchie said.

There is much more in the lengthy article.

Posted by Marcia Oddi on August 24, 2015 09:23 AM
Posted to General Law Related

Ind. Courts - "Former Madison attorney held on $1M cash-only bond"

Renee Bruck of the Madison Courier reported August 22nd:

A former Madison attorney was arrested on 30 criminal charges Friday afternoon by the FBI and Texas law enforcement following a year-long investigation.

John C. Eckert, 66, faces multiple Class C felony counts of forgery and fraud on a financial institution, a Class C felony count of racketeering and a Class C felony count of theft.

Eckert is being held in a Dallas jail on a $1 million cash-only bond.

Jefferson County Chief Deputy Prosecutor D.J. Mote said Friday afternoon that an investigation into allegations of mishandling funds held in Eckert’s attorney’s trust account began more than 12 months ago by the Indiana State Police.

During the course of the investigation, the FBI took over the investigation. FBI Special Agent Derek Schoon serves as the lead investigator on the case.

Federal authorities recently presented the case to Jefferson County prosecutors for prosecution of the state charges. * * *

The Indiana Supreme Court had opened a case against Eckert in July 2013 based on allegations of misconduct, but he did not face any disciplinary action after surrendering his law license.

Posted by Marcia Oddi on August 24, 2015 09:17 AM
Posted to Indiana Courts

Enviropnment - "Development of Kokomo solar park moves forward"

It will be in Kokomo, on the site of the former Continental Steel plant Superfund site. From the story this weekend in the Kokomo Tribune:

Construction of new $10 million solar park in Kokomo is set to begin this fall after the Indiana Utility Regulatory Commission Thursday approved an agreement to sell the electricity produced at the facility to Duke Energy. * * *

The IURC Thursday also approved purchased-power agreements between three other solar parks and Duke Energy Indiana. Those facilities will be located in Clay, Vigo and Sullivan counties.

Posted by Marcia Oddi on August 24, 2015 09:10 AM
Posted to Environment

Ind. Courts - More on: Blackford County judges enjoin county clerk from entering the Courthouse

The ILB posted the Blackford County judges' 6-page order here on Friday.

Today Keith Roysdon and Douglas Walker have a story in the Muncie Star-Press headed "County clerk banned from courthouse by judges." The long story essentially recounts the order and notes:

A staffer in Blackford Circuit Court Dean Young’s office told The Star Press on Friday that the judge would not comment on the dispute, which boiled over in recent days. Blackford Superior Court Judge Nick Barry — who joined Young in signing the order — did not return a call from The Star Press seeking comment.

Posted by Marcia Oddi on August 24, 2015 08:57 AM
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 8/24/15):

Thursday, August 27

  • 9:00 AM - Commissioner of the Indiana Bureau of Motor Vehicles v. Rodney Vawter, et al. (49S00-1407-PL-494) IC 9-18-15-4 lists reasons the BMV may refuse to issue a personalized license plate. The Marion Superior Court ruled in part that the statute violates certain rights of free speech in the U.S. Constitution’s First Amendment. A related administrative regulation and “policy statement” were also ruled invalid. The Bureau appealed. Enforcement of the trial court’s order, including its direction that the Bureau resume issuing personalized license plates, has been stayed during this appeal. Because a statute was declared unconstitutional, the appeal comes directly to this Court in accordance with Appellate Rule 4(A)(1)(b).

    ILB: This is the ‘OINK’ license plate case. This Aug. 7th ILB post reports that supplemental briefs have been filed addressing the recent SCOTUS decision in Walker v. Texas. Here is the Indiana case docket. The BMV is represented by AG Zoeller, Mr. Vawter by the ACLU of Indiana. The ILB will attempt to obtain copies of the briefs for posting.

  • 9:45 AM - Christopher Helsley v. State of Indiana (63S00-1406-LW-440) Helsley’s murder convictions were affirmed on direct appeal in Helsley v. State, 809 N.E.2d 292 (Ind. 2004), but a new penalty phase was ordered in post-conviction proceedings. Following that retrial, Helsley was again sentenced to life without the possibility of parole by the Pike Circuit Court. In this direct appeal, Helsley argues the new sentence was error and should be revised.

  • 10:30 AM - Austin Blaize v. State of Indiana (26S00-1410-LW-771) Following a jury trial at which Blaize was found guilty of murder and other offenses, the Gibson Circuit Court sentenced him to life imprisonment without the possibility of parole. In this direct appeal, Blaize argues that a comment made by the judge during the trial deprived him of a fair trial.

Next week's oral arguments before the Supreme Court (week of 8/31/15):

  • No arguments currently scheduled.

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 8/24/15):

Wednesday, August 12

  • No arguments currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 8/31/15):

Monday, August 31

  • 2:30 PM - Techna-Fit v. Fluid Transfer (32A05-1410-PL-462) RCM Techna-Fit, Inc. filed a complaint against Fluid Transfer Products, Inc. ("FTP") alleging, among other claims, that FTP engaged in unfair competition with Techna-Fit in violation of the Lanham Act, 15 U.S.C. Section 1051 et seq. and seeking injunctive relief. FTP filed a counterclaim against Techna-Fit alleging breach of contract and a third-party claim against Stuart Trotter alleging breach of fiduciary duty, defamation, and deception. Techna-Fit and FTP each filed motions for partial summary judgment, which the trial court denied. Following a bench trial with the assistance of an advisory jury, the trial court entered judgment in favor of FTP on its counter-claim against Techna-Fit and its third-party claim against Trotter for breach of fiduciary duty. And the trial court awarded damages to FTP as follows: $662,901.86 for Techna-Fit's breach of contract; $125,000 for Trotter's breach of fiduciary duty; and punitive damages for Trotter's breach of fiduciary duty in the amount of $1,500,000. FTP requested attorney's fees, which the trial court awarded following a hearing. Techna-Fit filed a motion to correct error, which the trial court denied. Techna-Fit appeals and presents the following issues for our review: (1) whether the trial court erred when it denied Techna-Fit's motion for partial summary judgment as an improper repetitive motion under Trial Rule 53.4; (2) whether the trial court abused its discretion when it excluded certain evidence at trial; (3) whether the trial court abused its discretion when it refused a proposed jury instruction; (4) whether the trial court erred when it found that a release executed by Techna-Fit and FTP did not preclude FTP's breach of contract claim against Techna-Fit; (5) whether the trial court erred when it awarded FTP $1,500,000 in punitive damages; and (6) whether the trial court abused its discretion when it awarded FTP $146,661,43 in attorney's fees. The Scheduled Panel Members are: Judges Najam, Kirsch and Barnes. [Where: Court of Appeals Courtroom (WEBCAST)]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]

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


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

Posted by Marcia Oddi on August 24, 2015 08:24 AM
Posted to Upcoming Oral Arguments

Sunday, August 23, 2015

Ind. Law - More on: Ken Stroud, DeBruler clerk and long-time IU-McKinney professor, dies

Updating this ILB post from August 21st, here is the obituary today from the Indianapolis Star.

Posted by Marcia Oddi on August 23, 2015 04:01 PM
Posted to Indiana Law

Ind. Gov't. - "THE PRIZE: Who’s in Charge of America’s Schools?"

Review of new book, "The Prize," by Dale Russakoff, on the effort to reform Newark's school, a book the reviewer, Alex Kotlowitz, calls "a brilliantly reported behind-the-scenes account of one city’s attempt to right its failing public schools." Here is the final paragraph from today's NY Times book reveiw:

“The Prize” may well be one of the most important books on education to come along in years. It serves as a kind of corrective to the dominant narrative of school reformers across the country. I’m not giving anything away by telling you that this bold effort in Newark falls far short of success. Most everyone moves on. Booker is elected to the Senate — and his nemesis, a high school principal deeply critical of his school reform efforts, becomes the city’s next elected mayor. Christie gets caught up in the bridge-lane-closure scandal, and of course is now running for president. Anderson recently announced her resignation as superintendent. The one individual who appears changed by the experience is, somewhat surprisingly, Zuckerberg. Last year, along with his wife, Priscilla Chan, who as a pediatric intern cared for underserved children around San Francisco, Zuckerberg announced a gift of $120 million in grants to high-poverty schools in the Bay Area. This time, though, they declared their intent to include parents and teachers in the planning process. But more to the point, a key component to their grants includes building “a web of support for students,” everything from medical to mental health care. Zuckerberg came to recognize that school reform alone isn’t enough, that if we’re going to make a difference in the classroom, we also need to make a difference in the lives of these children, many of whom struggle against the debilitating effects of poverty and trauma. Here is where this story ends — but also where the next story begins.

Posted by Marcia Oddi on August 23, 2015 02:18 PM
Posted to Indiana Government

Friday, August 21, 2015

Ind. Decisions - Supreme Court issues one opinion today

In The Huntington National Bank v. Car-X Assoc. Corp., an 11-page, 5-0 opinion, Justice David writes:

After suing a mortgagee to foreclose on a lien, junior creditor Car-X Associates Corporation (Car-X) obtained a default judgment against co-defendant and senior creditor Huntington National Bank (Huntington) after Huntington failed to timely respond to the complaint and summons. A few weeks later, Huntington filed a motion to set aside the default judgment, arguing that it was entitled to relief under Indiana Trial Rule 60(B)(1) because of its excusable neglect and under Indiana Trial Rule 60(B)(8) because such relief would be just and equitable under the circumstances. Finding that Huntington failed to establish either avenue of relief, the trial court denied its motion. The Court of Appeals, however, determined that Huntington had in fact proven the existence of excusable neglect and accordingly held that the trial court abused its discretion in deciding otherwise.

By their nature, cases involving claims of excusable neglect are highly fact sensitive. Here, the record reveals that the source of Huntington’s untimely response was that, in the absence of the employee who typically received service, a supervisor failed to refer the summons and complaint to counsel until after the deadline had passed. “This is neglect, but not excusable neglect as the term appears in Rule 60(B)(1).” Smith v. Johnston, 711 N.E.2d 1259, 1262 (Ind. 1999).

Thus, we find that the trial court did not abuse its discretion in denying Huntington’s motion to set aside Car-X’s default judgment on this basis. But this conclusion does not terminate Huntington’s appeal, for there is still the question of whether the denial of Huntington’s motion was just and equitable under the circumstances. To best answer this question, we remand this case to the trial court to reevaluate the motion under Trial Rule 60(B)(8), especially in light of Huntington’s meritorious defense to the underlying foreclosure suit (as Car-X concedes), the substantial amount of money involved, and Car-X’s lack of prejudice from the delay, among other considerations. * * *

We affirm the trial court’s denial of Huntington’s motion to set aside the default judgment under Trial Rule 60(B)(1) for excusable neglect but remand to the trial court to reconsider whether equitable reasons support granting Huntington’s motion under Trial Rule 60(B)(8).

Rush, C.J., Dickson, and Massa, J.J., concur.
Rucker, J., concurs in result.

Posted by Marcia Oddi on August 21, 2015 02:21 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Applicants for the upcoming Marion County Superior Court vacancy announced

The ILB has just received this information from Gov. Pence's office:

Interviews for the Marion County Superior Court vacancy will begin next week. The applicants are:
  • David Cook
  • Curtis Foulks
  • Sarah Glasser
  • Alicia Gooden
  • Therese Hannah
  • Maura Hoff
  • David Hooper
  • Kimberly Mattingly
  • Duane Merchant
  • Paul Ogden
  • Denise Robinson
  • David Seiter
  • Kurt Webber
This is to fill the vacancy caused by Judge Altice's selection for the Court of Appeals.

Posted by Marcia Oddi on August 21, 2015 12:34 PM
Posted to Indiana Courts

Ind. Courts - Ken Stroud, DeBruler clerk and long-time IU-McKinney professor, dies

From the law school:

We were notified today of the loss of one of our esteemed emeritus faculty members, Ken Stroud. Many of us who were around prior to 1999 remember Ken fondly. His funeral will be held next Tuesday, August 25th, at noon at Holy Cross Catholic Church, with calling beginning at 9:30 a.m. that morning. The address is 125 N. Oriental Ave., Indianapolis. There will also be a lunch served there at the church around 1:00 p.m. following the service.
Professor Joel Schumm sends a link to this "Tribute to Ken Stoud" upon his retirement, written by Professor James W. Torkle, that appeared in issue #2 of the 1999 Indiana Law Review. Ken Stroud joined the IU faculty in 1972.

Posted by Marcia Oddi on August 21, 2015 12:23 PM
Posted to Indiana Courts