Tuesday, July 07, 2015

Ind. Decisions - 7th Circuit decides a second Indiana case today, re "coercion" to engage in illegal activity

In USA v. John Smith (ND Ind., Simon), an 18-page opinion, Judge Ripple writes:

John Smith was arrested after a sting operation in which the Government had organized two fictional drug transactions. Based on his participation in that operation, a jury convicted Mr. Smith of both conspiring and attempting to possess with intent to distribute more than five kilograms of cocaine, transferring firearms with knowledge that they would be used in a drug trafficking crime, and possessing a firearm in furtherance of a drug trafficking crime. Mr. Smith appeals his conviction, arguing that the Government’s conduct violated his right to due process of law by coercing him to engage in illegal activity. After careful study of the governing case law and of the record, we conclude that no such coercion took place. The district court, therefore, did not plainly err by failing to dismiss Mr. Smith’s indictment. We therefore affirm the judgment of the district court. * * *

Mr. Smith contends that the Government violated his right to due process of law by soliciting him to participate in a fictional drug transaction completely operated by undercover agents. He relies on United States v. Russell, 411 U.S. 423 (1973), and its progeny. He acknowledges that he did not raise this argument before the district court, and therefore we review for plain error. See United States v. Duncan, 896 F.2d 271, 275 (7th Cir. 1990). * * *

Our early cases expressed skepticism about the validity of the “outrageous government conduct” defense. See, e.g., Duncan, 896 F.2d at 275, 277 (noting that the doctrine’s validity was questionable and concluding that the district court did not commit plain error in refusing to recognize an “outrageous governmental conduct” defense); United States v. Belzer, 743 F.2d 1213, 1216–20 (7th Cir. 1984) (holding that the Government’s conduct was not outrageous and therefore did not violate due process). More recently, we have said that the defense “does not exist in this circuit.” [25] United States v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995). In Boyd, we explicitly rejected the “intimations that ‘outrageous governmental misconduct’ is an independent ground for ordering a new trial.” Id. Our rejection of the defense was premised in part on the Supreme Court’s instruction in United States v. Hasting, 461 U.S. 499 (1983), that “we are not to reverse convictions in order to punish prosecutors.”[26] * * *

Although we recognize that the Supreme Court has not closed the door entirely on this matter, this case certainly does not present us with an opportunity to reconsider our position. Instead, this case, in which the Government simply provided the defendant with the opportunity to commit an offense, is governed by the basic principles of entrapment. * * *

Conclusion. Because we do not recognize outrageous government conduct as cause for dismissing an indictment, Mr. Smith’s challenge to his conviction fails. In any event, the evidence reveals that Mr. Smith jumped at the opportunity to make money by providing protection for individuals involved in the illicit drug trade and that he was an active and enthusiastic participant throughout the sting operation. The district court, therefore, did not commit plain error by failing to dismiss Mr. Smith’s indictment on account of the Government’s conduct. The judgment of the district court is affirmed.

Posted by Marcia Oddi on July 7, 2015 04:43 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Warrant required for police to search GPS device"

Today's COA opinion in Christopher Wertz v. State of Indiana (ILB summary here) is the subject of a story this afternoon in the NWI Times, reported by Dan Carden. Some quotes:

INDIANAPOLIS | Police cannot search or review the data recorded by a vehicle's navigation system without first obtaining a warrant, the Indiana Court of Appeals ruled Tuesday.

In its 3-0 decision, the court determined GPS data is entitled to the same privacy protections under the Fourth Amendment that the U.S. Supreme Court recently guaranteed to cellular phone data, which also typically contains location information.

"In our view, the GPS unit in this case is akin to a computer or cell phone. The device stores large amounts of information that could not possibly be stored in an ordinary physical container," wrote Appeals Judge Margret Robb. "Moreover, the location data it does store has been identified by the Supreme Court as private information." * * *

Police in Madison County, northeast of Indianapolis, seized Christopher Wertz's portable GPS device following a one-vehicle crash into a utility pole on Sept. 9, 2011, that killed Wertz's passenger, Megan Solinski.

After bypassing Wertz's passcode with help from the GPS manufacturer, police used data captured by the device to determine Wertz's route and traveling speed prior to the accident. * * *

Madison Circuit Judge Dennis Carroll rejected Wertz's pretrial motion to suppress the GPS data.

The appeals court said in reversing Carroll's decision that recent U.S. Supreme Court rulings require cell phones be treated differently than physical objects typically encountered in permissible police searches of individuals or vehicles because they often contain massive amounts of private data — including pictures, videos, address books, call logs and Internet search histories.

Similarly, a person using a GPS device for navigational assistance is not consenting to police accessing potentially years of travel records without probable cause, the court said.

"Although a person can expect to be seen by someone when he leaves his home and drives to a given destination, it does not follow that he should expect the government to know his whereabouts all the time," Robb wrote.

Oral arguments before the three-judge appellate panel were heard April 14 at Hammond Academy of Science and Technology, a charter school.

And, as it turns out, the NWI Times was at the oral argument, with a camera. The April 14th story by Carmen McCollum begins:
HAMMOND | The case was real. The defendant was real. The attorneys and judges were real.

The State of Indiana Court of Appeals heard oral arguments in the case of Wertz v. State at Hammond Academy of Science & Technology, giving high school students an opportunity to see attorneys and judges in action. The event was hosted by Hammond Legal Clinic, organized by Executive Director Kris Sakelaris, who is also president of the HAST charter school board.

Posted by Marcia Oddi on July 7, 2015 02:54 PM
Posted to Ind. App.Ct. Decisions

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

In Choice Hotels International In v. Anuj Grover (ND Ind., Van Bokkelen), a 7-page opinion, Judge Easterbrook writes:

As a substantive matter, relief under Rule 60(b)(6) requires the movant to establish that “extraordinary circumstances” justify upsetting a final decision. See Gonzalez v. Crosby, 545 U.S. 524, 535–38 (2005).

The district court thought these circumstances to be short of “extraordinary.” Lawyers sometimes fail to protect their clients’ interests, and the district judge observed that the remedy for legal neglect lies in a malpractice suit against the lawyer, rather than continuing the original litigation and upsetting the adversary’s legitimate expectations based on a final judgment. Litigants who choose a poor lawyer may bear the costs themselves, or shift them to the lawyer, but cannot shift them to an adversary who bore no fault for the problem. (Johnson unquestionably is a poor lawyer. The Supreme Court of Indiana suspended him from practice on March 20, 2014, less than four years after his admission to the bar, following five disciplinary complaints against him. His suspension—for failure to cooperate in the investigation of these grievances—is of indefinite duration, and he has been removed from the roll of attorneys authorized to practice in the Northern District of Indiana.)

The district court’s approach is well grounded in decisions of the Supreme Court and this circuit. * * *

The Investors recognized that Chawla was not protecting their interests, and they sensibly insisted that he find someone who would. When they began to suspect that Johnson likewise was not protecting their interests, they did not replace him. Sending him emails, and making unreturned phone calls, is no substitute for action. They readily could have consulted the docket in the litigation and learned that Johnson was not filing essential documents, but they didn’t. Johnson did not abandon the investors; he performed some legal tasks, though not enough, and responded to three of Anuj Grover’s inquiries. Unlike the attorneys in Thomas and Maples, he had not cut off all communication with his clients and walked away from the litigation. But even if we were to treat the Investors as abandoned by Johnson, still they must bear the consequences of their own inaction. They were sued and did not defend the litigation, personally or by counsel. They were able to monitor the proceedings yet did not follow through. The district judge therefore did not abuse his discretion in denying their motion for relief from judgment. AFFIRMED

Posted by Marcia Oddi on July 7, 2015 01:05 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Democrats want details of Pence public relations spending"

Dan Carden reports today in the NWI Times in a story that begins:

INDIANAPOLIS | Hoosier Democrats are demanding Gov. Mike Pence detail exactly what Indiana received for the $365,000 it paid an international public relations firm to improve the state's image following April's "religious freedom" debacle.

John Zody, chairman of the Indiana Democratic Party, submitted a public records request to the Republican governor Monday seeking copies of all email messages, documents and agreements involving state officials and PR firm Porter Novelli.

"Mike Pence wasn't being transparent with Hoosiers when he terminated the taxpayer-funded contract with Porter Novelli the day before a long holiday weekend," Zody said. "Hoosiers need to know their tax dollars are being managed properly."

The state's commerce agency, known as the Indiana Economic Development Corp., announced Thursday afternoon it was ending the six-month, $750,000 contract just six weeks after it was signed.

Later in the story:
The joint termination agreement requires the IEDC and Porter Novelli keep confidential all aspects of the firm's work for the state and data provided by the state to the company.

It's not clear whether Indiana's open records law can force the governor's office to share Porter Novelli's work with the Democrats or anyone else who requests it.

ILB: That agreement looks to bear parallels to a settlement agreement between the government and a private entity... See this May 30, 2013 ILB post on past efforts to keep settlement agreements secret.

The NWI Times story today includes links to the IEDC professional services agreement with Porter Novelli, and to the termination agreement, as well as the Indiana Democrats request for records of Porter Novelli work.

Posted by Marcia Oddi on July 7, 2015 12:50 PM
Posted to Indiana Government

Law "What Are the Limits of ‘Religious Liberty?’"

Emily Bazelon has authored this July 7th overview of the concept of "religious liberty" for the NYT Magazine. A sample:

The court’s decision led to a burst of feminist outrage, but Hobby Lobby didn’t face a sustained boycott. And so it was surprising when another push for religious objection crashed into a wall of public condemnation earlier this year. Legislators in Indiana and Arkansas expected a smooth ride for their versions of a bill called the Religious Freedom Restoration Act. The first law by that name was passed by Congress in 1993 by huge, bipartisan margins. R.F.R.A. established a balancing test that remains in effect: When someone complains that a federal law substantially burdens his or her free exercise of religion, the government must show that it has a compelling interest in applying that law.

The R.F.R.A.s proposed in Indiana and Arkansas were more expansive: They would have allowed people and corporations to bring religious-liberty claims against one another, as well as the government. But that change didn’t really explain why Indiana and Arkansas found themselves on the wrong side of the culture wars; the context did. The new religious-liberty bills appeared to be shielding businesses that didn’t want to serve gay couples, who had recently won the right to marry in Indiana. ‘‘If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no,’’ Crystal O’Connor, an owner of Memories Pizza in Walkerton, Ind., told a local news station. This time, the boycott materialized, and Memories Pizza temporarily shut its doors (supporters also raised more than $800,000 on the owners’ behalf). When major companies threatened to pull up stakes in Indiana and Arkansas, the states retreated, altering their religious-freedom bills. * * *

Refusing to serve customers has an ugly history. A half-century ago, the civil rights movement held lunch-counter sit-ins to protest Jim Crow. No one succeeded then in claiming a God-given right to refuse to serve black customers. Throughout the South, businesses open to the public became open to all. Today, in the name of religious liberty, there is robust Southern opposition to same-sex marriage. But supporters say the analogy to the exclusions of Jim Crow is inapt, because racial segregation was never central to Christian teaching the way traditional marriage has been. They also correctly point out that strong national laws protect against discrimination on the basis of race, but not against discrimination on the basis of sexual orientation. In many states, in the South and elsewhere, a business or a landlord doesn’t need a special faith-based reason for turning away a gay client or tenant. They’re simply free to do so.

Given the speed with which public support for same-sex marriage is growing, gay people may win other rights against discrimination. But what about private religious schools and social-service organizations?

Posted by Marcia Oddi on July 7, 2015 12:38 PM
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 7 NFP memorandum decisions)

For publication opinions today (2):

In Bryan A. Cox v. State of Indiana, a 6-page opinion, Judge Baker writes:

Bryan Cox appeals from the sentence enhancement imposed as a result of his Habitual Offender adjudication. Cox argues that the doctrine of amelioration applies and that the habitual offender statute that became effective on July 1, 2014 should have been applied at his sentencing. Finding no error, we affirm. * * *

In the instant case, Cox’s crime was committed before, and all proceedings began before, the effective date of the amended habitual offender statute. In addition, it is clear that the legislature did not intend the doctrine of amelioration to apply. Therefore, Cox’s argument fails.

In Christopher Wertz v. State of Indiana, a 21-page opinion, Judge Robb writes:
Christopher Wertz brings this interlocutory appeal, challenging the trial court’s denial of his motion to suppress. He presents one issue, which is a matter of first impression: whether the warrantless search of his personal Garmin Global Positioning System (“GPS”) device violated the Fourth Amendment to the United States Constitution.1 We conclude Wertz’s GPS device is not a “container” under the automobile exception and that he has a reasonable expectation of privacy in the device and its contents. Therefore, the warrantless search of the GPS device violated the Fourth Amendment. * * *

We conclude Wertz’s GPS device cannot be treated as a “container” under the automobile exception. We further conclude that he has a reasonable expectation of privacy in the device and in the historical location data that the device stores. Therefore, the warrantless search of the GPS device violated the Fourth Amendment. We reverse and remand.

NFP civil decisions today (2):

Peter D. Nugent v. Phyllis N. Nugent (mem. dec.)

Scott Meisberger, d/b/a Meisberger Construction v. D. Brent Hanger and Gregory Bishop d/b/a H & B Enterprises, Inc. (mem. dec.)

NFP criminal decisions today (5):

Clemmeth and Janis Leach v. State of Indiana (mem. dec.)

Scott Huy v. State of Indiana (mem. dec.)

Herbert Cox III v. The State of Indiana (mem. dec.)

John Wesley Kimbrough, Jr. v. State of Indiana (mem. dec.)

Vincent D. Quarles Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 7, 2015 10:51 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Appraisal/assessment of big box stores remains a big issue

The ILB's first major post on this issue was on Jan. 18th, and quoted the IBJ, the FWJG and the LCJ, as well as linked to both the Meijer and Kohl opinions. This was followed by about half-a-dozen subsequent posts, the most recent a brief post on May 5th pointing to 2015 amendments that, I wrote: "[N]ow address the issue. They are retroactive to March 1, 2014. As for exactly what they do ..."?

Yesterday an important $$ story by Megan Banta in the Bloomington Herald-Times addressed the question. Some quotes, but it really needs to be read in full:

Tax refunds and a steep decline in the property tax base are at stake as counties across the state and the country, including Monroe County, battle a new tactic that big retailers are using to slash their property taxes.

County assessors value real estate based on the current condition of the business, but big-box chains across the country are pushing to have their buildings compared to others that have been vacated and sold. Appraisers across the nation refer to this tactic as the "dark store" method.

The county currently is battling at the state level with Lowe's over the assessment of the company's store in Whitehall Crossing on Bloomington's west side after the national retailer appealed its assessment in June 2014.

Monroe County Assessor Judy Sharp called the case "the one that broke my back." * * *

Tax refunds and a steep decline in the property tax base are at stake as counties across the state and the country, including Monroe County, battle a new tactic that big retailers are using to slash their property taxes.

County assessors value real estate based on the current condition of the business, but big-box chains across the country are pushing to have their buildings compared to others that have been vacated and sold. Appraisers across the nation refer to this tactic as the "dark store" method.

The county currently is battling at the state level with Lowe's over the assessment of the company's store in Whitehall Crossing on Bloomington's west side after the national retailer appealed its assessment in June 2014.

Monroe County Assessor Judy Sharp called the case "the one that broke my back." * * *

If the dark store method were to become the norm in the state, the value of more than 17,000 commercial properties would drop by $3.5 billion, according to a study commissioned by Indiana county officials. Their big-box retail owners would shift a tax burden of $120 million onto other types of taxpayers, such as locally owned stores and working families.

All that because corporations, mostly from out of state, found a way to use "a loophole in bad laws" to save money on their tax bills, Sharp said.

That's why local governments and the state need to respond, she said. As president of the Indiana County Assessors Association, Sharp pushed for legislation that passed during the most recent session of the Indiana General Assembly following a ruling that slashed the assessment for a Meijer store in Marion County from $83 per square foot to $30 per square foot.

The new law was signed in May; it states that new properties and properties less than 10 years old should be valued using what's known as the cost approach, where appraisers use the cost of land and construction, less depreciation. It also requires that in cases where comparable sales are used, the properties cannot have been sitting vacant for more than one year or have deed restrictions. The law is not retroactive to appeals filed before its enactment.

Today the Herald-Times has an editorial headed "Confusion, mistrust of local government create knotty tax problems for county." A few quotes:
The push for a change to dark box assessments started in other states, but has made its way to Indiana, with a Meijer’s in Indianapolis reducing its assessment from $83 to $30 a square foot, based on the dark box method.

That reduction pushed the Indiana Legislature to pass a new law that addresses the issue, but according to [Monroe County Assessor Judy] Sharp, who’s president of the Indiana County Assessors Association, that law is so garbled and confused that no one on either side of the battle lines can figure out where to go with it.

Such confusion, along with its general distrust of local government that leads to such messes, is the part of the production the Legislature owns.

If the Lowe’s appeal to state regulators holds up, the hit on other taxpayers and ultimately on local government services will definitely be felt, Sharp says.

And there remains the unanswered question: If big box stores, which open their doors to customers every day, can use dark box assessment, why should any other company not be able to claim the same thing for their places of business?

The solution?

Sharp thinks it has to come from the legislature, and Indiana State Rep. Matt Pierce, D-Bloomington, agrees.

Pierce thinks majority Republican legislators realize the problem and want to fix it. “I think they understand a fix is needed,” he says. But having observed the battles among lobbyists and the amount of confusion generated with this past session’s attempted patch job, he’s unsure of whether that can happen.

Posted by Marcia Oddi on July 7, 2015 10:08 AM
Posted to Indiana Government

Ind. Decisions - SD Ind. decides Benton County wind turbine contract dispute; more on wind turbines

This 68-page opinion dated July 6th, from SD Indiana Judge Barker, is in the case of Benton Co. Wind Farm v. Duke Energy. The sumary of the parties' dispute begins on p. 29:

The dispute between the parties in this litigation boils down to a determination of their existing contractual relationship in view of significant changes in the manner of wind energy production and distribution that have occurred following the execution of their long-term agreement. When the parties entered into the PPA (and commenced performing their obligations thereunder), BCWF was the sole wind farm in the Benton County (Indiana) area. As previously noted, after BCWF began generating energy for Duke’s purchase, several additional wind farms entered the market area, which ultimately caused electrical transmission lines to be congested and gave rise to the need for manual generation curtailments. For a period of time, because the Wind Farm was a “must run” facility, Duke suffered a negative fiscal impact of the oversupply of energy based on the negative LMPs. However, after wind energy was re-classified as DIR, the negative impact of the additional wind energy generation shifted to BCWF who was faced with curtailment orders from MISO, requiring it to decrease its output by approximately 41%.

Two intertwining legal issues have arisen under the PPA as a result: First, does the PPA’s requirement that Duke “reasonably cooperate” with BCWF when bidding power require Duke to perform its obligations in such a way that its bids result in BCWF’s maximum production of electricity? Second, when Duke makes bids to MISO that result in the curtailment of BCWF’s production, is Duke indirectly violating the PPA’s prohibition against Duke’s curtailment of BCWF’s output? The answers to these questions turn on whether the PPA is properly construed as an output contract or a take-or-pay contract, the latter requiring Duke to purchase all the power BCWF was (is) capable of producing.

BCWF seeks by this litigation to compel Duke to purchase all the power BCWF is able to generate, thereby forcing Duke to make aggressive bids to MISO in order to maximize BCWF’s output and the benefits of its bargain under the PPA. * * *

For the foregoing reasons, we DENY BCWF’s Motion for Summary Judgment and GRANT Duke’s Motion for Summary Judgment. Final judgment shall enter accordingly.

Much wind-energy is being generated in Benton County, as reported in this Feb. 4, 2015 Lafayette Journal & Courier story by Chris Morisse Vizza, headed "Amazon harnesses Benton County winds." Some quotes:
The unstoppable winds that howl across Benton County's crop land will move Amazon Web Services toward its long-term goal of using 100 percent renewable energy. * * *

Amazon Web Services in November announced its commitment to achieve complete renewable energy usage for its global infrastructure footprint.

Amazon Web Services and Pattern Energy Group Inc. last month announced a 13-year deal in which Amazon agreed to purchase energy generated by more than 60 wind turbines that Pattern will build and operate near Fowler.

Pattern Energy will erect the turbines in phase four of Fowler Ridge Wind Farm, which was sold to Pattern Energy by BP Wind Energy, BP press officer Jason Ryan said. BP continues to operate the first three phases, he said.

By early next year, the new turbines will generate about 500,000 megawatt hours of wind energy annually, enough to power 46,000 homes in the United States, Pattern Energy spokesman Matt Dallas said.

Near the end of the long story:
The county has seen a lasting impact from the previous building boom.

Managers stayed to operate the wind farms. Overall, 95 jobs have been added since 2009, Kepner said.

And more than 1,000 visitors have taken the guided wind farm tour she created after the first round of contractors left.

The take-away is that Benton County's sparse population of 8,700 — typically a drawback for economic development — can be turned into a positive.

"We have a lot of farm ground for these wind farms to be dispersed on and don't have the population nearby," she said.

"When you have a niche, you make that work for you."

Here is a long June 26th story by Frank Denzler in the Rushville Republican headed "Rush County wind farm issue up in the air." It begins:

For a number of years, rural and city residents have silently been choosing sides on should energy producing wind turbines become a part of the county’s landscape. However, in recent months, as the possible reality of wind turbines nears, the silence has been broken, with those for and against the issue willing to discuss their side of the matter.

Currently, county leaders are weighing the situation, gathering information and listening to those on both sides of the issue regarding the placement of 600-foot towers on rural property. Earlier this week, a number of county officials made a trip to Benton County and spoke with that county’s leaders and residents to gain still another aspect of what has become a controversial topic locally.

The Rushville Republican also had a June 30th story headed "Tax analysis from proposed Rush County wind farms."Yesterday, July 6th, Dave Schultz of the Bluffton News-Banner reported: "Wind turbines out in Wells County after zoning rules revision." Some quotes:
The Area Plan Commission is recommending that no large wind energy conversion systems, better known as wind turbines, be placed in Wells County.

The ban does not affect the locations that have already been approved for Apex Wind Energy, sites that have been the subject of recent litigation and face an uncertain future with county officials. It does mean that, after the county’s zoning and subdivision control ordinances have been amended, there will be no zoning classification that will allow large WECS to be sited anywhere in Wells County. * * *

[O]ne member of the Wells County Board of Commissioners, Tamara Dunmoyer, said she and her fellow commissioners — Blake Gerber and Kevin Woodward — wanted wind turbines written out of the county’s zoning ordinance.

Dunmoyer, who is a party to a lawsuit that has been working its way through the Indiana appellate system, emphasized her point by walking over to a chalkboard that had three options concerning wind turbines. She wrote KW, TD, and BG, the initials of the three commissioners, and circled Option 1 — the elimination of large WECS.

The nine APC members present Thursday night then voted unanimously to recommend that option as part of a massive revision of the ordinances. There are 70 revisions in total, but three of them — wind ordinances, concentrated feeding operations, and allowing the use of truck bodies for storage — drew the most comment as the APC considered the changes.

In the end, however, the rules on CFOs — in particular, the distance the operations can be located from wells — and the proposed rule changes on the use of truck bodies for storage remained what had been recommended to the APC by an ordinance redraft committee. A CFO or manure lagoon must be at least 500 feet from any well other than that which services the CFO or manure lagoon, and truck bodies as storage units are allowed only in agriculture and industrial zoning, forbidden in residential zoning, and may be used in some other zoning classifications by request.

Wind turbines, however, got the ax. Dunmoyer had asked for that during the APC’s June meeting, citing the controversy they had brought to the county.

The prohibition, however, applies only to large WECS. Small- and medium-sized WECS may still be approved.

Posted by Marcia Oddi on July 7, 2015 09:23 AM
Posted to Environment | Ind Fed D.Ct. Decisions | Indiana Government

Monday, July 06, 2015

About this Blog - Without substantial new front-page contributors, the ILB will close down on September 30th

The ILB is at a crossroads. Without significant additional funding, I will have no choice but to close the blog the end of this quarter and devote my time and energy elsewhere. The ILB has been in operation since 2003 - 12 years now. Beginning in July of 2007, I was happy to receive a significant annual donation from the Indiana State Bar Association, the largest bar organization in the State, which has a stated mission of serving both the bar and the public. Doxpop, a company which provides on-line access to Indiana county court case records, became a "front-page" donor the following year, joined in 2010 by the Litigation Section of the ISBA, and this month by the Indiana Trial Lawyers Association. As I wrote in 2008, on the 5th Birthday of the ILB:

Become an Annual Supporter. Your firm or company can join the list of annual ILB [front-page] supporters. I hope you will consider doing so, thereby permitting me the time to keep the ILB operating at a consistently high level.
  • What will be your benefits? Your name listed as a supporter in the right-hand column and on the supporters' page with a link to your site. Exposure to a statewide and national legal readership. The knowledge that you are contributing to an effort that has demonstratively enhanced communication, insight and understanding, both within the Indiana legal community, and with the general public.
  • Non-benefits of supporting the ILB. The ILB speaks with an independent voice, supporters have no influence on our editorial judgment.
This June, the ISBA, the ILB's largest donor, informed the blog that its board had voted not to continue its annual contribution.

This leaves the ILB with a deficit of nearly $20,000 this year. I plan to continue blogging through the current quarter, relying on my limited resources and on the contributions of remaining donors. But unless generous new continuing support can be found, and quickly, the ILB's 12-year run will end on September 30th.

The history of the ILB.

In 2002 Howard Bashman, a Philadelphia lawyer, began publishing a blog devoted to appellate litigation. He named it “How Appealing” and posted a number of entries each day. This law blog quickly caught on with lawyers and judges all over the country; there was nothing else like it at the time.

After a few months of reading this blog, a light bulb went off in my head – I could do the same for an Indiana audience! After some planning and building of the website, I went online with the Indiana Law Blog in March of 2003. Here are the goals I established then and continue to follow:

  • One was to keep track of Indiana appellate decisions at both the state and federal level, and to put a spotlight on our courts.
  • Another was to bring together law-related stories from all over the state, and news from outside the state that might have an impact here, creating a kind of shared warehouse of knowledge -- I had often seen people in different counties re-solving similar problems.
  • And I wanted to help create an Indiana-wide legal community so no matter whether you are a big city lawyer or in an isolated rural county, whether you are located across the border from Chicago or Louisville, you can still access the internet and read material that might actually be important to you.
  • Also, and this was essential, I wanted to tie things together -- I didn't want to have to scratch my head and think -- I've read something like that before. Hence my hopefully very accessible archives, going back to 2003 and even before. [A recent example is at the end of this post]
  • One more goal was to show the public that "law" impacts much of what we do and is not limited to court decisions or statute books.
  • A final goal was to be a spark for new ideas and new ways of doing things. For instance:
    • early on, before they were available online, the Indiana Law Blog received authority to post Supreme Court transfer lists every week;
    • the Indiana Law Blog’s persistent urging that the Court of Appeals’ not-for-publication opinions be made available online helped lead to a change in the court policy;
    • the ILB started posting information about judges up for retention in 2006, the Court followed suit with a retention website 2 years later;
    • starting in 2010 with the first Supreme Court vacancy in nine years, the ILB instituted intensive coverage of the judicial selection process, and has continued coverage with two more Supreme Court and two Court of Appeals, and one Tax Court vacancy. No one else comes close in this.
As may go without saying, in recent years the ILB has ballooned into practically a full time job. I spend 4 to 6 hours a day, 5 to 7 days a week on the blog. I start out in the morning reviewing Indiana papers and big national papers for stories of interest, at about mid-morning during the work week I check the Indiana supreme, appellate and tax courts for new opinions, as well as the federal 7th Circuit. I review and summarize the opinions and try to get the summaries online within an hour or two of issuance. Some days there may be only a few opinions, other days there may be dozens. My goal is to provide enough information about a decision for readers to decide whether it is a ruling they need to read in full.

I check out other law and political blogs for anything of interest. I also post totally original entries based on my own research or observation. Many of the ILB readers report to me that the blog is their go-to site for review of the daily appellate opinions and commentary. Here is a note I received from a county judge:

I have been a trial court judge for 15+ years in X County. I handle both criminal and civil cases and I am in the courtroom most days almost all day. I look forward to visiting your blog each morning before starting my day to read the Appellate and Supreme Court opinions (both published and non-published), and to read the other legal stories. You have allowed me to take back my evenings, which were previously spent reading advance sheets and other legal news, and spend more time with my wife and family. Thank you!
The ILB has been recognized with awards from:
  • the Indiana Judges Assn in 2006 and
  • the Indiana Trial Lawyers Association in 2013.

Where we are now.

The ILB would run a deficit of $20,000 this year, if it continued to operate at its current level without new donors. I do plan to continue blogging during this quarter, through Sept. 30, relying on my own limited resources and on the contributions (for the quarter) of my remaining donors.

I tweeted a few weeks ago that the ILB was on course to reaching 1 million page views in 2015, besting its 2014 record of 898,899. But now the ILB needs a number of $3,000 to $5,000 annual donors, or several larger donors, in order even to continue past September 30th.

If you are a state or local bar association, a judges' group, a bar or law firm litigation or appellate section, or a provider to the legal community, please consider becoming a major ILB supporter. If you are a member of such a group, please contact your board. Thanks for reading.

Posted by Marcia Oddi on July 6, 2015 02:18 PM
Posted to About the Indiana Law Blog

Ind. Decisions - Tax Court posts two today, dated July 2nd

In Kooshtard Property I, LLC v. Monroe County Assessor, a 6-page opinion, Sr. Judge Fisher writes:

Kooshtard Property I, LLC has challenged the Indiana Board of Tax Review’s final determination that valued its land at $1,050,000 for the 2010 tax year. The Court affirms. * * *

An Indiana Board final determination is not supported by substantial evidence if a reasonable person, after reviewing the administrative record in its entirety, could not find enough relevant evidence to support the Indiana Board’s decision. See Amax Inc. v. State Bd. of Tax Comm’rs, 552 N.E.2d 850, 852 (Ind. Tax Ct. 1990). Based on its review of the administrative record, the Court concludes that Kooshtard has not established that the Indiana Board’s final determination was not supported by substantial evidence. Accordingly, the final determination of the Indiana Board is AFFIRMED.

In Monroe County Assessor v. Kooshtard Property I, LLC, a 7-page opinion, Sr. Judge Fisher writes:

This case examines whether the Indiana Board of Tax Review erred in reducing Kooshtard Property I, LLC’s land assessments for the 2008, 2009, and 2011 tax years (the years at issue). The Court finds no error.

Posted by Marcia Oddi on July 6, 2015 12:04 PM
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 4 NFP memorandum decisions)

For publication opinions today (1):

In Linda Rosenberg v. Kenneth Robinson, a 16-page opinion, Judge Brown writes:

Linda Rosenberg appeals from the entry of default judgment under two causes, raising three issues, which we consolidate and restate as whether the trial court erred in denying her motion to set aside default judgment against her and denying her motion to correct error. We reverse and remand. * * *

We conclude that the small claims court erred in entering default judgment in favor of Robinson under Cause No. 1965 and Cause No. 1966 without first making inquiry so as to assure the court that Robinson as the plaintiff had a prima facie case as contemplated by Indiana Small Claims Court 10(B). See Smith, 560 N.E.2d at 1260-1261. Accordingly, Rosenberg has established prima facie error and that she, within one year after the entry of default judgment, established good cause under Indiana Small Claims Rule 10(C) for the court to vacate the judgments and reschedule the hearing of the original claims. The small claims court abused its discretion in denying Rosenberg’s motion to set aside the default judgments and her motion to correct error. We remand with instructions to vacate the entry of judgment and reschedule the hearing of the original claims.

NFP civil decisions today (1):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of C.W., Minor Child, and his parents, B.S. and Ch.W. v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (3):

Elmer Bryant v. State of Indiana (mem. dec.)

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

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

Posted by Marcia Oddi on July 6, 2015 11:54 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending July 3, 2015

Here is the Clerk's transfer list for the week ending Friday, July 3, 2015. It is three pages (and 26 cases) long.

Three transfers were granted last week:

  • Jeffrey M. Miller and Cynthia S. Miller v. Kristine C. Danz - transfer was granted, with opinion, on June 29th. See ILB post here.

  • Celebration Worship Center, Inc. v. Patrick Tucker and Carolyn P. Tucker a/k/a Patty Tucker - transfer was granted, with opinion, on June 29th. See ILB post here.

  • AM General, LLC v. James A. Armour - this was a March 20, 2015, 201 COA opinion, involving an employment agreement.
A notable 3-2 denial of transfer occurred June 29th, concerning the Indiana Tort Claims Actʼs aggregate liability cap. See this July 1st ILB post for more.

Posted by Marcia Oddi on July 6, 2015 11:38 AM
Posted to Indiana Transfer Lists

Ind. Gov't. - Wis. Gov. "Walker office operating as if proposed open records exemptions are law"

Updating this post from earlier this morning, where the ILB wrote: "Wisconsin now has backed down, for now," apparently not so, accoridng to a new story this morning in the Milwaukee Journal Sentinel, reported by Patrick Marley that begins:

Madison— Gov. Scott Walker announced over the weekend that Republicans would not create new exceptions to the state's open records law, but for months the all-but-certain presidential candidate has been operating as if the exemptions were already in place.

Two months ago, Walker declined to make public records related to his proposal to rewrite the University of Wisconsin System's mission statement and release the Wisconsin Idea from state law. He argued he didn't have to release those records to the Milwaukee Journal Sentinel and others because they were part of his office's internal deliberations.

The Progressive magazine and the Center for Media and Democracy sued Walker over those denials. The cases are pending in Dane County Circuit Court.

[h/t Rick Hasen]

Posted by Marcia Oddi on July 6, 2015 10:57 AM
Posted to GA and APRA

Ind. Law - "Indiana Teenager’s Jailing Brings a National Call to Fix Sex Offender Registries"

This is a must-read story from the NY Times, reported by Julie Bosman. (You can also find a shorter version in the Seattle Times, headed "Playground-hookup case fuels calls to change sex-offender registry.") Some quotes:

ELKHART, Ind. — Until one day in December, Zachery Anderson was a typical 19-year-old in a small Midwestern city.

He studied computer science at the local community college. He lived with his parents and two younger brothers in a sun-filled home on the St. Joseph River, where framed family photos hang from the walls and a pontoon boat is docked outside.

And he dated in the way that so many American teenagers do today: digitally and semi-anonymously, through apps where prospects emerge with the swipe of a finger and meetings are arranged after the exchanges of photos and texts.

In December, Mr. Anderson met a girl through Hot or Not, a dating app, and after some online flirting, he drove to pick her up at her house in Michigan, just miles over the state line. They had sex in a playground in Niles City, the police report said.

That sexual encounter has landed Mr. Anderson in a Michigan jail, and he now faces a lifetime entanglement in the legal system. The girl, who by her own account told Mr. Anderson that she was 17 — a year over the age of consent in Michigan — was actually 14. * * *

He was arrested and charged and, after pleading guilty to fourth-degree criminal sexual conduct, was sentenced to 90 days in jail and probation.

As an Indiana resident, Mr. Anderson will most likely be listed on a sex offender registry for life, a sanction that requires him to be in regular contact with the authorities, to allow searches of his home every 90 days and to live far from schools, parks and other public places. His probation will also require him to stay off the Internet, though he needs it to study computer science.

Some advocates and legal authorities are holding up Mr. Anderson’s case as the latest example of the overreach of sex offender registries, which gained favor in the 1990s as a tool for monitoring pedophiles and other people who committed sexual crimes. In the decades since, the registries have grown in number and scope; the nearly 800,000 people on registries in the United States go beyond adults who have sexually assaulted other adults or minors. Also listed are people found guilty of lesser offenses that run the gamut from urinating publicly to swapping lewd texts.

As Mr. Anderson’s defenders see it, his story is a parable of the digital age: the collision of the temporary relationships that young people develop on the Internet and the increasing criminalization of sexual activity through the expansion of online sex offender registries.

ILB: Read the whole story, this is just the start.

Posted by Marcia Oddi on July 6, 2015 07:52 AM
Posted to Indiana Law

Ind. Gov't. - "GOP lawmakers, Scott Walker abandon open records changes"

Updating this long ILB post from July 4th (""Wisconsin Republicans vote to dramatically scale back oversight of lawmakers"), Wisconsin now has backed down, for now, according to this story yesterday by Mary Spicuzza in the Milwaukee Journal Sentinel. Some quotes:

Faced with a swift and fierce backlash, Republicans on Saturday abandoned a plan that would have gutted the state's open records law.

In a joint statement issued Saturday afternoon, Gov. Scott Walker and GOP legislative leaders said the provisions relating to any changes to the law would be removed from the state budget.

"After substantive discussion over the last day, we have agreed that the provisions relating to any changes in the state's open records law will be removed from the budget in its entirety. We are steadfastly committed to open and accountable government," the statement read. "The intended policy goal of these changes was to provide a reasonable solution to protect constituents' privacy and to encourage a deliberative process between elected officials and their staff in developing policy. It was never intended to inhibit transparent government in any way."

The announcement came from Walker, but it was also attributed to Senate Majority Leader Scott Fitzgerald (R-Juneau), Assembly Speaker Robin Vos (R-Rochester), Sen. Alberta Darling (R-River Hills) and Rep. John Nygren (R-Marinette). Darling and Nygren are co-chairs of the Joint Finance Committee.

They added, "In order to allow for further debate on this issue outside of budget process, the Legislature will form a Legislative Council committee to more appropriately study it and allow for public discussion and input." * * *

The turnaround came less than 48 hours after lawmakers slipped the plan into the budget unannounced in a late-night session heading into a three-day holiday weekend. * * *

The open records overhaul was blasted by a broad range of liberals and conservatives alike, who said the move would lead to a secretive government hidden from public oversight.

On Saturday, Walker did not specifically say whether he and his office were part of planning the proposed open records changes, or whether he objected to them in advance. * * *

The Legislature's Joint Finance Committee tucked the changes to the open records law into the version of the state budget proposal it passed late Thursday. The changes were sweeping and would essentially have allowed public officials to keep secret records that reveal how they do their jobs. * * *

The proposed GOP plan would have limited public records requests for lawmakers' communications with their staffs and for drafting records of legislation after it was introduced. It would have also exempted a host of records created by Walker's administration, state agencies and local governments and put new limits on public access to information about dismissed criminal charges in some instances.

The measure would also have given lawmakers a broad legal privilege that would allow them to refrain from releasing records when they are sued and bar their current and former staff members from disclosing information legislators wanted kept private.

ILB: If this sounds familiar, see this long list of ILB posts about the similar, and ongoing, efforts of the Indiana House.

Posted by Marcia Oddi on July 6, 2015 07:38 AM
Posted to GA and APRA | Indiana Government

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

From Sunday, July 5, 2015:

From Saturday, July 4, 2015: From Friday, July 3, 2015:

Posted by Marcia Oddi on July 6, 2015 07:09 AM
Posted to Upcoming Oral Arguments

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/6/15):

  • No arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 7/13/15):

  • No arguments currently scheduled.

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 7/6/15):

Tuesday, July 7

  • 1:00 PM - BGC v. Burchanan (49A05-1408-CT-373) On July 29, 2007, following her shift as a cocktail waitress at Brad's Gold Club in Indianapolis, IN, Candice Vowell struck a pedestrian, Jerry Coleman Buchanan, with her vehicle. After it was determined that Vowell had consumed alcohol at Brad's Gold Club, Buchanan sought to hold Brad's Gold Club liable under both the Dram Shop Act and common-law negligence. The Dram Shop Act precludes civil liability for furnishing alcoholic beverages unless the person who furnished the alcoholic beverage had actual knowledge that the person to whom the alcoholic beverage was furnished was visibly intoxicated at the time. Buchanan filed a motion for partial summary judgment, alleging that Vowell's knowledge of her own intoxication should be imputed to Brad's Gold Club as her employer. Brad's Gold Club, however, filed a cross-motion for summary judgment, asserting that the evidence indisputably establishes that Vowell was not visibly intoxicated when Brad's Gold Club furnished her a drink at the end of her shift. On appeal, the parties dispute the applicability of the Dram Shop Act versus common-law negligence and the proof required for each. The Scheduled Panel Members are: Judges Riley, Bailey and Barnes. [Where: Court of Appeals courtroom (WEBCAST)]
Next week's oral arguments before the Court of Appeals (week of 7/13/15):

  • No oral arguments currently scheduled.

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

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

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

Posted by Marcia Oddi on July 6, 2015 07:08 AM
Posted to Upcoming Oral Arguments

Sunday, July 05, 2015

Environment - "EPA regulations entering 2015 governor race"

A few quotes from a long story this weekend from Chelsea Schneider of the Evansville Courier & Press:

INDIANAPOLIS - The Indiana Republican Party is maneuvering to make proposed environmental regulations that would require the state to reduce greenhouse gas emissions from power plants a campaign issue in the 2016 governor’s race.

The day after Gov. Mike Pence blasted the forthcoming federal regulations state GOP Chairman Jeff Cardwell released a statement asking where Democratic candidates John Gregg and Glenda Ritz stood on the issue. Cardwell argued “hardworking Hoosiers deserve answers.” It’s one of the first issues out of the gate for the party following Pence announcing his re-election bid last month.

Pence’s disdain for the regulations is evident.

In his strongest words to date on the proposed regulations by the U.S. Environmental Protection Agency, the Republican governor visited Evansville last month – in the heart of Southern Indiana’s coal industry – to announce the state won’t comply with the emissions reduction targets unless the federal government significantly changes the new regulations before they’re finalized.

Pence indicated to President Barack Obama the state would use its legal muscle to fight the regulations, which in current form would require Indiana to reduce its carbon dioxide emissions by 20 percent by 2030.

“Energy policy should promote the safe, environmentally responsible stewardship of our natural resources with the goal of reliable, affordable energy. Your approach to energy policy places environmental concerns above all others,” Pence wrote to Obama.

Pence’s Democratic opponents were critical of his response.

In speaking with the Courier & Press last week, Gregg, who is making another bid for governor after narrowly losing to Pence in 2012, said the state needs to focus on clean coal technology.

Gregg, who previously worked as a land agent for Peabody Coal and a governmental affairs representative for Amax Coal, spoke of his background in the industry. He recalled Hoosiers from his hometown of Sandborn who worked at mines.

“We need to balance those good-paying jobs. We need to balance those concerns with that and the environment. We need to take a hard look at this,” Gregg said.

Gregg declined to comment on the emissions standards until they’re released, which is expected in August. But he said more discussion needs to occur as the state waits to see how the proposed rules evolve and the final product comes out – rather than talk of lawsuits.

“It’s that quick reaction that I think gets (Pence) into a lot of problems,” Gregg said.

Related stories include this July 4th editorial from the Indianapolis Star headed "Indiana needs to reduce its dependency on coal," and this long July 3rd story in the Gary Post-Tribune, from Teresa Auch Schultz and Christin Nance Lazerus, headed "Local environmentalists concerned with mercury ruling."

Posted by Marcia Oddi on July 5, 2015 09:36 PM
Posted to Environment

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

The ILB has had a number of earlier posts on the Samuel Bradbury case. Friday Steven Porter reported on the verdict in the Lafayette Journal & Courier:

Samuel Bradbury was found guilty Thursday of violating federal law by stating in a Facebook post last year that he intended to kill four public officials and destroy public property, including the Tippecanoe County Courthouse.

The post — which his parents, friends and attorneys defended as satire — articulated plans to "purge the vile pig scum from this land and restore constitutional rights to the people."

Bradbury, 23, of Pine Village had initially been indicted on one federal charge: willfully making a threat to use fire or explosives.

A second charge was added in May, alleging that he "maliciously conveyed false information" concerning an attempt to carry out an attack with fire or explosives. * * *

Assistant U.S. Attorney Jill Koster said the latter set of allegations — that Bradbury "maliciously conveyed false information" — was the only box checked on the jury's special verdict form.

"We will continue to investigate and where appropriate bring federal charges against those individuals who utilized social media for illegal purposes," said David Capp, who is the U.S. attorney for the northern district of Indiana.

The offense carries a maximum penalty of 10 years.

Koster said closing arguments concluded about 4 p.m. Central Daylight Time, with the jury beginning deliberations about 5:30 p.m.

The verdict was announced about four hours later.

Also interesting is this information at the end of the story:
Stan and Linda Bradbury, the defendant's parents, were anxiously awaiting the verdict from a parking lot outside the federal courthouse in Hammond.

Linda Bradbury said she was on the prosecution's witness list but was never called to testify, so she wasn't allowed to step foot into the courtroom until after both sides had finished presenting evidence.

"The only thing I saw was closing arguments," she said, noting that the conclusion of his trial was the first time in a year that she'd seen her son in person.

The jail where he's been awaiting trial, she explained, only permits visitation via phone or computer monitor.

Posted by Marcia Oddi on July 5, 2015 09:28 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Death penalty in Indiana "is fading from people’s minds and memories"

Some quotes from a story Maureen Hayden of CNHI reported last Thursday:

Longtime public defender Paula Sites once devoted a significant part of her work to training lawyers to represent clients facing execution.

She offered sessions each year in her role as assistant executive director at Indiana Public Defender Council.

Now, she does offers the sessions every two years – the minimum required by the state. With so few death penalty cases, she said, there’s no need to have them more often.

“We’ve been steadily stopping the use of the death penalty,” she said.

Executions were back in the national news this week when the U.S. Supreme Court, ruling in an Oklahoma case, upheld the use of a controversial drug blamed for several botched executions.

It barely added to the din of news here in Indiana.

Sites thinks that’s not just because Indiana uses a different combination of drugs to execute condemned prisoners. It’s that the death penalty is fading from people’s minds and memories.

The last execution by the state was in 2009. The last execution by the federal government at the U.S. Penitentiary in Terre Haute was 2003.

There’s no scheduled execution for any of the 61 federal death-row inmates. Nor for the dozen men on death row at the Indiana State Prison in Michigan City, or for the sole woman under an Indiana death sentence who is incarcerated in an Ohio prison on a separate murder conviction. * * *

In the last legislative session, the General Assembly moved to make capital punishment more available to prosecutors. Lawmakers added two elements to a list of crimes eligible for the death penalty — lethal campus shootings and beheadings.

But that likely won’t significantly reverse the trend, Sites said. Too many other factors are involved.

Cost is one of them.

The Legislative Services Agency – the General Assembly’s nonpartisan research arm – calculates the average cost to taxpayers of a murder case resulting in a sentence of life without parole is $42,000.

A murder case with the death sentence costs more than 10 times as much - usually due to years of legal appeals before the penalty is carried out.

Posted by Marcia Oddi on July 5, 2015 09:16 PM
Posted to Indiana Courts

Ind. Gov't. - "Questions remain about independent redistricting commission"

Lesley Weidenbener has a good column in the Sunday Louisville Courier-Journal on the potential impact here in Indiana of last Monday's SCOTUS decision on Arizona redistricting:

INDIANAPOLIS – The U.S. Supreme Court has cleared the way for states to use independent redistricting commissions to draw maps for legislative districts.

That’s particularly timely in Indiana, where lawmakers are about to study whether to move the redistricting process to such a commission. * * *

In a decision last week, the U.S. Supreme Court said a redistricting commission in Arizona is constitutional. In that case, the commission was created by voters through an initiative process. The court said disallowing the commission would “run up against the Constitution’s animating principle that the people themselves are the originating source of all the powers of government.”

But that raises a question: In a state like Indiana, without a ballot initiative process, would an independent commission actually honor the idea that the “the people themselves are the originating source of all the powers of government?”

After all, the elected legislature would be turning authority over to an unelected body.

At least when lawmakers are in charge, the voters have – at least in theory – the power to get rid of them if they do a bad job.

It’s just something to think about. And advocates for a commission would rightly point out that it’s tough to vote out a legislator whose district has been gerrymandered to the point that it’s not competitive.

Regardless, the U.S. Supreme Court’s decision didn’t clear all the hurdles Indiana lawmakers face in creating a commission in the state.

The Indiana Constitution requires that every 10 years lawmakers set the number of House and Senate members and “apportion them among districts” according to number of people counted in the federal census. Essentially, the state constitution gives the power for drawing maps to lawmakers, not an independent commission.

That could mean a constitutional amendment is necessary. It could mean an independent commission would draw maps that the General Assembly would approve.

These are all the issues the study group this summer needs to tackle. But the debate shouldn’t be just about the logistics. It needs to be about the larger questions as well.

Posted by Marcia Oddi on July 5, 2015 08:08 PM
Posted to Indiana Government

Ind. Courts - "Limits at DNA lab add twist to cases"

Rebecca S. Green reports today, in a long Fort Wayne Journal Gazette story, about restrictions on the usage of the Indiana state police crime lab analysis, which is:

... part of the sorting all crime scene technicians engage in at crime scenes large and small. And they are limited as to what potentially important items they can send off to the Indiana State Police crime lab for DNA analysis.

If it is a garden-variety burglary, they can send two items to the lab.

But if it is a homicide, they can send up to 10 items, and then the appropriate DNA standard requests. DNA standards are known samples of DNA used to identify specific people, such as suspects, witnesses, victims, etc.

Sexual assault investigations allow the rape kit and DNA standards. If no rape kit, up to three items and standards.

For other crimes against a person, such as aggravated battery or attempted murder, the total number submitted is four, plus standards.

The state police crime lab is a finite resource, one plagued in the past by backlogs and delays. The limits on evidence submission keep things moving more smoothly, but to jurors used to their forensic evidence-heavy TV shows and movies, the limits might sound jarring.

Posted by Marcia Oddi on July 5, 2015 07:48 PM
Posted to Indiana Courts

Saturday, July 04, 2015

Ind. Gov't. - "Wisconsin Republicans vote to dramatically scale back oversight of lawmakers"; parallels to Indiana effort

The end of June, the ILB started a new category, "GA and APRA", to make it easy to find all the ILB's posts on the Indiana House's efforts to avoid the Access to Public Records Act.

Now it turns out that the Wisconsin General Assembly has embarked on a similar course. Jason Stein of the Milwaukee Journal Sentinel reported Thursday, July 2nd, in a lengthy story:

Madison— In one of their final votes on the state budget Thursday, GOP lawmakers approved sweeping limits on public access to records that would shed light on future actions of legislators, Gov. Scott Walker's administration, state agencies and local governments.

The proposals were tucked into an expansive measure that passed the Joint Finance Committee 12-4, with all Republicans in favor and all Democrats against. Hours later, with another party-line vote, the committee early Friday sent the overall budget to the Senate and Assembly.

The GOP plan would limit public records requests for lawmakers' communications with their staff and for drafting records of legislation after it's been introduced. It would also exempt a host of records created by the Walker administration, state agencies and local governments and put new limits on public access to information about dismissed criminal charges in some instances.

The measure would also give lawmakers a broad legal privilege that would allow them to refrain from releasing records when they are sued and bar their current and former staff from disclosing information legislators wanted kept private. * * *

Records of draft legislation are routinely used by journalists and citizen groups to shed light on the lawmaking process, revealing the intentions of elected officials and the outside interests that may have helped to shape them. In recent years, those legislative records showed mining company Gogebic Taconite had a prominent role in writing legislation easing environmental regulations for iron ore mines.

In February, the Milwaukee Journal Sentinel used the drafting file for the budget to show that Walker's administration had insisted to the University of Wisconsin System on changes to the system's mission that for generations enshrined the Wisconsin Idea in state law. Shortly afterward, Walker backtracked from a previous statement that UW officials had overlooked the changes and not objected to them.

From a Jan. 30, 2013 J-S story:
The Journal Sentinel reported in December 2011 that Gogebic Taconite met with business lobby Wisconsin Manufacturers & Commerce and a handful of lawmakers on the first drafts of the bill, which narrowly failed to pass in March 2012.

At the time, Republican legislators said they welcomed input from Gogebic because the company knows best how current mining laws would affect its project.

"We are the only metallic mining company in Wisconsin," Bob Seitz, lobbyist for Gogebic, said on Tuesday. "You would expect that we would be offering our input."

Details in the latest drafting notes were made public on Tuesday by One Wisconsin Now, a liberal group, which was critical of the Gogebic's influence in the legislation.

"You didn't see any members of the public, you didn't see Republican leaders asking environmental groups how the bill should be stronger," said Scot Ross, executive director of One Wisconsin Now.

"Wisconsin Republicans vote to dramatically scale back oversight of lawmakers, other public officials," is the headline of a long July 3rd story by Molly Beck of the Wisconsin State Journal. Some quotes:
Wisconsin legislative Republicans on Thursday passed sweeping changes to the state’s open records law that would dramatically curtail the kind of information available to the public about the work that public officials do.

The proposal blocks the public from reviewing nearly all records created by lawmakers, state and local officials or their aides, including electronic communications and the drafting files of legislation. * * *

“This is the single most sweeping and outrageous affront to Wisconsin’s tradition of open government that I have seen in my quarter-century of involvement with the (Wisconsin) Freedom of Information Council,” council president Bill Lueders said.

One provision creating a broad “legislator disclosure privilege” has no counterpart in any other state, a spokesperson for the nonpartisan Legislative Reference Bureau testified.

Despite voting for the motion, Republican members of the panel all professed not to know who proposed the public-records changes. Joint Finance Committee co-chairman Rep. John Nygren, R-Marinette, refused to answer a State Journal reporter when asked which lawmakers requested them. * * *

Democrats on the panel railed against the changes.

“Deals will be done in secret,” said Sen. Jon Erpenbach, D-Middleton. “Corruption will happen. And nobody’s going to know about it.”

Critics said the change would make it impossible for voters to know whether special interests are writing legislation.

“It’s in the cloak of darkness that you want more darkness,” said Rep. Chris Taylor, D-Madison.

Budget committee member Sen. Luther Olsen, R-Ripon, said he didn’t seek the changes and isn’t sure who did. “I honestly don’t need (the changes) for my purposes,” he said. “We have nothing to hide.”

Olsen said lawmakers have previously raised concerns about whether communication between lawmakers and constituents should be public. * * *

“If Wisconsin wants to take a giant leap into corruption, I think that’s a good move for them to make,” Lueders said. “It’s cowardly. It’s dirty. It violates the tradition of the state of Wisconsin, and it shows what miserable cowards that these people are that they would stick this in an omnibus motion.”

Lueders said the proposal could be in response to news organizations using the open records law to reveal that Walker’s initial budget pushed for removal of language embodying “the Wisconsin Idea” — the University of Wisconsin System’s mission statement — from state law despite opposition from state higher education leaders.

Lueders also cited a 2014 State Journal examination of legislative drafting files that showed Rep. Joel Kleefisch, R-Oconomowoc, helped write a bill that could have significantly reduced a wealthy, divorced donor’s child-support payments. A State Journal article this spring also used the records law to examine proposals, known as “term papers,” that new lawmakers were offering to Assembly Speaker Robin Vos, R-Rochester.

“They’ve been embarrassed by too much that has come out,” Lueders said. * * *

Under the motion, records and correspondence of any officer or employee of the state Legislature or legislative service agency would not be considered public record.

Change in definition

The definition of public records would change, too, by exempting “deliberative materials” from the public’s view.

Deliberative materials are defined in the motion as “communications and other materials, including opinions, analyses, briefings, background information, recommendations, suggestions, drafts, correspondence about drafts, and notes, created or prepared in the process of reaching a decision concerning a policy or course of action” or in preparing a draft of a document.

The motion also gives a legislator a “legal privilege” or right to refuse to disclose and to prevent a current or former staff member from disclosing a wide array of types of communication that occurred during the lawmaker’s term in office.

In another proposal, the Legislative Reference Bureau would be required to keep all drafting files for legislation confidential. The LRB would no longer be required to maintain and house the drafting records of legislation introduced in prior legislative sessions and use such records to provide information about legislative intent when questions arise about a particular law. Currently, the public can examine drafting files for bills after they have been introduced.

The motion also eliminates the requirement that the LRB maintain all drafting files for legislation during the current legislative session and release those files for public view once the Legislature adjourns.

ILB: There are a number of parallels between the Wisconsin effort and the Indiana effort. The cynical might suspect this to be part of a new push from ALEC, the American Legislative Exchange Council.

Posted by Marcia Oddi on July 4, 2015 10:39 AM
Posted to GA and APRA

Friday, July 03, 2015

Ind. Decisions - 7th Circuit decided one Indiana case July 2nd

In Corre Opportunities Fund, LP v. Emmis Communications Corp. (SD Ind., Barker), a 10-page opinion, Judge Easterbrook writes:

Plaintiffs, who own preferred stock in Emmis Communications Corp., contend that Emmis violated Indiana law by voting some shares. The suit is in federal court because, at its outset, it included a non-frivolous claim under federal securities law. The district court analyzed the federal claim at length before ruling against the Owners (as we call the plaintiffs). 892 F. Supp. 2d 1076 (S.D. Ind. 2012). The Owners now rely entirely on Indi-ana corporate law. To keep this opinion manageable, we pare away all but the most vital facts; the rest are in the district court’s exhaustive opinions. (The district court’s 2014 opinion on the state-law issues is not published but is available from the court.) * * *

Indiana’s willingness to allow corporations to vote their own shares may be good, or it may be bad, but the ability to negotiate for better terms, or invest elsewhere, rather than judicially imposed “best practices,” is how corporate law protects investors. AFFIRMED

Posted by Marcia Oddi on July 3, 2015 07:38 PM
Posted to Ind. (7th Cir.) Decisions

Thursday, July 02, 2015

Ind. Decisions - Supreme Court decides one today, with 3-2 split

In Marq Hall v. State of Indiana, a 28-page, 3-2 opinion, Justice David writes:

Following a jury trial, Marq Hall was convicted of class A felony child molesting. On appeal, he claimed that the trial court erred in denying his motion to compel the victim’s mother to answer a deposition question about an incident in the victim’s past and in excluding from evidence a phone conversation with the victim’s mother in which they discussed the incident. Finding that the trial court abused its discretion in both instances, the Court of Appeals reversed Hall’s conviction and remanded for a new trial. However, our review of the evidence, construed in a light most favorable to the conviction, leads us to conclude that the two errors, even if considered violations of Hall’s Sixth Amendment right to confront witnesses against him, were harmless beyond a reasonable doubt. We accordingly affirm Hall’s conviction. * * *

In summary, given the extensive evidence of Hall’s guilt presented by the State, the likely minimal impact of the information he wanted before the jury, and the cross-examination of witnesses Hall was otherwise able to conduct, the jury’s verdict would not have been any different had the jury heard and considered Hall and A.D.’s conversation and the Kentucky incident. Consequently, we can confidently say that, on the whole record, the trial court’s twin errors were harmless beyond a reasonable doubt, and Hall’s otherwise valid conviction should not be set aside.

Conclusion. Because the trial court’s alleged errors in denying Hall’s motion to compel discovery and in excluding from evidence the phone conversation between Hall and A.D., even if considered violations of Hall’s Sixth Amendment right to confrontation, were harmless beyond a reasonable doubt, we affirm Hall’s conviction for class A felony child molesting.

Dickson and Massa, J.J., concur.
Rucker, J., dissents with separate opinion in which Rush, C.J., joins. [which begins, at p. 24] No matter how finely the evidence is parsed in this case, the inescapable fact is that Hall was denied his Sixth Amendment right of cross-examination. At stake here is whether that denial—a clear constitutional error—was harmless. In Chapman v. California the Supreme Court declared “before a federal constitutional error can be held harmless, the [reviewing] court must be able to declare a belief that it was harmless beyond a reasonable doubt.” 386 U.S. 18, 24 (1967). Because I can make no such declaration, I respectfully dissent. * * *

In order to declare the error committed in Hall’s case harmless beyond a reasonable doubt, the Court must be unequivocally convinced this error did not contribute to a guilty verdict. It seems to me incongruous for the majority to say on the one hand “the State’s line of questioning succeeded in” “elicit[ing] testimony from A.D. that Hall had baselessly inquired about M.T.’s credibility,” and “also served to mislead the jury, who had no way of knowing that Hall was in fact seeking more information about a potential prior false accusation of sexual misconduct.” Slip op. at 20-21 (footnote omitted). But then declare on the other hand “it is apparent that the trial court’s denial of Hall’s motion to compel discovery [and exclusion of the phone conversation], even if in violation of the Sixth Amendment, was harmless beyond a reasonable doubt.” Id. at 14. To the contrary, the record makes clear Hall was erroneously denied his constitutional right to cross-examination. And the State has failed in its burden to demonstrate the “error did not contribute to the verdict.” Koenig, 933 N.E.2d at 1273. Accordingly I cannot conclude the error was harmless beyond a reasonable doubt. See Reed v. State, 748 N.E.2d 381 389-90 (Ind. 2001) (concluding that violation of defendant’s Sixth Amendment right constituted reversible error where trial court denied defendant’s motion to compel deposition testimony and refused to admit videotape of the same subject matter to impeach witness during trial). I would therefore reverse Hall’s conviction and remand this cause for a new trial.

Rush, C.J., concurs.

Here is the Sept. 4, 2014 COA opinion.

Posted by Marcia Oddi on July 2, 2015 02:36 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Sex offenders in Allen/Elkhart challenging state restriction on where they can attend church" [Updated]

Here is a copy of the complaint in John Doe 1, John Doe 2, et al., v. The Allen and Elkhart County Prosecutors, and the Sheriffs of Allen and Elkhart County, et al..

From the complaint:

Indiana Code § 35-42-4-14 (eff. July 1, 2015) provides that certain sex offenders, defined by the statute as “serious sex offenders,” are prohibited from entering school property. This statute has a number of serious effects, not the least of which is to ban these persons from going to worship in churches, synagogues, mosques, or other religious buildings that are located on the same as property parochial schools or certain preschool programming. Banning sex offenders from, for example, church on Sunday, because there are students in a school on the same grounds on Monday, is irrational and violates the due process of law protected by the Fourteenth Amendment to the United States Constitution. It also violates Indiana’s newly enacted Religious Freedom Restoration Act, Indiana Code § 34-13-9-0.7, et seq. (eff. July 1, 2015), which prohibits government from imposing a substantial burden on a person’s exercise of religion absent a compelling governmental interest and a showing that the action is the least restrictive means to further that interest. * * *

Legal claims

57. Indiana Code § 35-42-4-14 violates RFRA, Indiana Code § 34-13-9-0.7, et seq., because it substantially burdens the exercise of religion without a properly tailored justification.

58. Indiana Code § 35-42-4-14 is fundamentally irrational and arbitrary in violation of the due process clause of the Fourteenth Amendment to the United States Constitution.

ILB: IC 35-42-4-14 is headed "Unlawful entry of school property by a serious sex offender" and is on the last page of this copy of IC 35-42-4.

Posted by Marcia Oddi on July 2, 2015 11:36 AM
Posted to Indiana Courts

Ind. Gov't. - "Indiana impact of high court's decision on emissions rules uncertain"

The SCOTUS decision Monday in Utility Air Group v. EPA (ILB post here) was the subject of a useful long story yesterday in the $$ Bloomington Herald Times, reported by Ernest Rollins. Some quotes:

Interest groups differ on what effect Monday’s U.S. Supreme Court decision, which put the brakes on regulation of coal plants’ mercury emissions, will have on the state.

In Michigan v. the Environmental Protection Agency, justices voted 5 to 4 that the EPA needs to consider the costs associated with limiting power plants’ mercury emissions as part of the Mercury and Air Toxic Standards.

That means the proposed rules will have to be revised to take such costs into account and weigh those costs against health risks before ordering emissions reductions.

Bruce Stevens, president of the Indiana Coal Council, said while he was pleased with the court’s decision, it comes too late. Stevens said the time it took for the case to go through the court was longer than the period companies had to become compliant, forcing utility companies to either begin installing costly new technologies to comply or shut down.

“Plants are going totally offline or switching from coal to other fuel sources because of the MATS regulation,” Stevens said, referring to Indianapolis Power & Light’s decision to switch the Harding Street power plant from coal to other energy sources.

Environmentalists are not happy with the decision either, but for different reasons. Jesse Kharbanda, executive director of the Hoosier Environmental Council, said he was disappointed with the ruling because it creates uncertainty about whether the issue of mercury emissions from coal-powered plants will be addressed.

“The practical reality of the ruling is it puts power companies in a state of uncertainty,” Kharbanda said

Some power plants already have proceeded to install mercury controls, he said, and those that have not done so will hopefully follow in order to better protect communities from the dangerous emissions.

Stevens said the costs that would be incurred in plant upgrades to meet the regulations would increase both residential and industrial energy bills. Gov. Mike Pence called that detrimental to Hoosiers.

“For too long, the repercussions of costly regulations and federal overreach have been overlooked in Washington, where the administration’s approach to energy policy has placed environmental concerns above all others,” Pence said in a statement on the ruling.

But Kharbanda said those opposing regulation aren’t telling the whole story when they claim the rules would increase Indiana’s electricity rates.

“It is not telling the full and accurate picture,” Kharbanda said.

The average Indiana plant is more than 40 years old, he said, and aging power plants require upgrades and modernization regardless of federal policies. Money will have to be spent for that, he said.

Jim Barnes, a former dean of Indiana University’s School of Public and Environmental Affairs, said that both the court’s majority and dissenters agreed costs need to be considered in drawing up such rules.

But estimates of costs varied dramatically in the opposing opinions. * * *

Barnes said that while costs to the coal industry increase with regulation, it is fair to weigh those costs with benefits such as improving people’s health, which is seriously threatened as mercury levels build up in waterways and fish make their way through the food chain to humans, where the element can affect the nervous system and brain, especially in children.

The decision sends the case back to the United States Court of Appeals for the D.C. Circuit. Barnes said in the long run, the Supreme Court’s decision is not going to deter the EPA from regulating mercury emissions, but the agency will have to produce some additional analysis before moving forward with the rules.

Posted by Marcia Oddi on July 2, 2015 10:42 AM
Posted to Environment | Indiana Government

About the ILB - Light blogging until Monday

And to quote Rick Hasen:

Enjoy the 4th, be safe, and celebrate this amazing country and democracy!

Posted by Marcia Oddi on July 2, 2015 10:38 AM
Posted to About the Indiana Law Blog

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

For publication opinions today (1):

In Town of Fortville v. Certain Fortville Annexation Territory Landowners, a 10-page opinion, Judge Baker writes:

The Town of Fortville (Fortville) appeals the trial court’s order denying annexation in favor of certain Fortville annexation territory landowners (the Remonstrators). Fortville argues that the trial court erred when it failed to apply substantial deference to Fortville’s adoption of an annexation ordinance—a legislative function delegated to the Fortville Town Council by the Indiana General Assembly. Fortville also contends that the trial court erred when it found that Fortville had not presented evidence that the area to be annexed was needed and can be used for Fortville’s development in the near future. Finding that the trial court erred by applying the wrong evidentiary standard when analyzing Fortville’s need to annex the area and plans for the areas development, we reverse and remand for proceedings consistent with this opinion. * * *

To allow the trial court’s order to stand would be to hold that a city—if it does not have impending plans to build on land that it seeks to annex—must sit and watch the land be used and developed in ways that might harm or impede its future plans for urban management of the land, until the “long-term inevitability” of annexation takes place. This result would be bad policy and likely harm both the area to be annexed and the municipality that seeks to annex it. Thus, we determine that the trial court should not have limited its analysis to evidence of physical construction or development in determining whether Fortville fulfilled the requirements of Indiana Code section 36-4-3-13(c)(2).

Therefore, we hold that the trial court applied the wrong evidentiary standard as a matter of law and find that, in determining whether a municipality fulfills the requirements of Indiana Code section 36-4-3-13(c)(2), a trial court may, and should, consider non-physical brick and mortar development uses, such as those—using annexed territory for “transportation linkages with other developing areas, to control adjacent development on its borders, and to prevent conflicting land uses”—noted by our Supreme court in Hobart. 631 N.E.2d at 913 n. 6. We reverse and remand with instructions that the trial court apply the correct standard and reconsider its judgment.

NFP civil decisions today (0):

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on July 2, 2015 10:30 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Drawing a line: Public the winner in redistricting decision"

The SCOTUS opinion Monday in Arizona Legislature v. Arizona Independent Redistricting Commission (see earlier ILB post here) is the subject of an editorial today in the Fort Wayne Journal Gazette. Some quotes:

If Monday’s Supreme Court ruling on election redistricting didn’t draw the same strident response as other recent rulings, it’s for good reason: Voters on both sides of the aisle won; hard-line Democratic and Republican politicians lost.

House Speaker John Boehner, R-Ohio, inadvertently offered the best illustration of how partisan redistricting works when he commented on proposed redistricting reform in his home state: “For 40 years, the Democrat Party had the pencil in their hands, and for the last 20 years we’ve had the pencil. When you’ve got the pencil in your hand, you’re going to use it to the best of your advantage.”

In a 5-4 ruling, the Supreme Court ruled it constitutional for the pencil to be held by an independent commission in drawing congressional maps. In upholding the use of a redistricting commission by the state of Arizona, it preserved the rights of other states, including Indiana, to limit political control of map-drawing.

Currently, the redistricting task in Indiana falls to a five-member commission only if the legislature fails to come up with new legislative and congressional maps. That’s unlikely in a state where Republicans enjoy a stranglehold on the General Assembly. But legislative leaders have agreed to consider turning redistricting over to an independent commission, with a two-year study set to begin this summer.

Posted by Marcia Oddi on July 2, 2015 09:49 AM
Posted to Indiana Government

Wednesday, July 01, 2015

Ind. Decisions - 7th Circuit decides a Wheaton College (Ill.) case on emergency contraception

In Wheaton College v. Sylvia Mathews Burwell (ND Ill.), an 18-page opinion, Judge Posner concludes:

Quite apart from the merits of its arguments, or lack thereof, Wheaton College has failed to satisfy two basic re-quirements for the issuance of a preliminary injunction. It has failed to show that delaying a judgment in its favor to the conclusion of proceedings in the district court would do the college any harm. In the absence of any evidence or even allegation that any member of the college community is violating or is expected to violate or believed likely to violate the college’s prohibition of emergency contraception, there is no reason to think that even if the college’s merely notifying the government of its objection to emergency contraception could “trigger” emergency-contraception coverage it would do so while this case was pending. The college has also failed to match the relief it seeks to the illegalities it alleges. Almost the entire weight of its case falls on attempting to show that the government is trying to “use” the college’s health plans, and it is this alleged use that it primarily asks us to enjoin. But the government isn’t using the college’s health plans, as we have explained at perhaps excessive length. And the relief sought has no connection to Wheaton’s complaints about allegedly forced speech and the alleged violation of ERISA and the APA; nor has Wheaton offered support for its claim to be treated as if it were a church.

The denial of a preliminary injunction is therefore AFFIRMED.

Posted by Marcia Oddi on July 1, 2015 07:35 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today, singling out attorney ...

In Darryl Pierce v. Visteon Corporation (SD Ind., McKinney), a 10-page opinion, Judge Easterbrook writes:

Federal law requires em ployers to offer laid off or discharged workers an opportuni ty to continue health insurance (including dental and vision benefits) at their own expense. This is called COBRA cover age, after the Consolidated Omnibus Budget Reconciliation Act of 1985. An employer has 44 days after the end of a person’s employment to provide notice and essential details. * * *

Plaintiffs in this suit, which the district court certified as a class action, contend that Visteon Corp. failed to deliver timely notice to some of its ex-­employees. The district court defined the class in a way that contains 1,593 persons. * * *

The class filed a notice of appeal on July 11, 2014, and contends that the penalties are too low, the class too small, and the attorneys’ fees too modest. * * *

We were interested in two things: whether these loose ends had been tied up, and, if not, whether the omissions affected the finality of the June 25 decision, as opposed to providing a ground to reverse it. Our briefing order directs counsel to address “how Federal Rule of Civil Procedure 23(c)(3) inter acts with Rule 58 in class action cases.”

Ronald E. Weldy, representing the class, ignored our question. His post-­‐‑argument memorandum does not men tion Rule 23(c)(3). Visteon’s lawyers, by contrast, addressed the issue with care. * * *

That’s not all. We have mentioned Weldy’s failure to comply with our order to address the interaction between Rule 23(c)(3) and Rule 58. And his brief on the merits has problems beyond those pointed out already. It presents 13 issues for decision, violating the principle that appellate counsel must concentrate attention on the best issues. (To brief more than three or four issues not only diverts the judges’ attention but also means that none of the issues will be addressed in the necessary depth; an appellate brief cov-­‐‑ ering 13 issues can spend only a few pages on each.) The brief’s writing is careless to boot; it conveys the impression of “dictated but not read.” Here are two sentences: “This Court should be entered a high daily statutory penalty in this matter. Respectfully, the award of the District Court to the contrary law and an abuse of discretion.” There’s more, equally ungrammatical. Weldy is in no position to contend that his compensation is too low.

The appeal is limited to the award of attorneys’ fees, which is AFFIRMED

Posted by Marcia Oddi on July 1, 2015 07:21 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on: Supreme Court denies transfer in Mid American Sound

Updating this post from earlier today, Tom davies of the AP reports:

INDIANAPOLIS — The state won't have to pay any more damages from the 2011 deadly Indiana State Fair stage collapse under a decision by the state Supreme Court.

The justices, in a 3-2 vote announced Wednesday, decided to not hear an appeal of a Court of Appeals ruling from January that upheld the state's $5 million liability cap in a case brought by Jordyn Polet of Cincinnati, who was 10 when she was hurt in the collapse.

The lawsuit argued the cap violates the Indiana Constitution and that Jordyn was treated differently than others who sued the state. She rejected the state's offer of $1,690, the only one of 65 claimants not to settle with the state. * * *

One of the girl's attorneys, Robert Peck, said her injuries merited $100,000 in damages and that she should've been allowed to press her case in court.

"We're disappointed that by a single vote the court chose not to take this issue," Peck said in a telephone interview. "Our client, and others who may be injured in the future, get no compensation at all for injuries that were the fault of the state." * * *

In a separate case, the attorney general's office is appealing a state appeals court ruling from March that the state might be responsible for some legal damages faced by the company that provided the stage rigging. Mid-America Sound Corp. has argued that the state is financially responsible by contract for the cost of its defense and any judgments against it.

The separate case is Polet, et al. v. Mid-America Sound, a 2-1 March 30, 2015 opinion of the Court of Appeals. Here is an update from the following day. Both posts include ILB comments. According to the docket, the case is awaiting action by the Supreme Court on a petition to transfer, it was transmitted on transfer on June 9, 2015.

Posted by Marcia Oddi on July 1, 2015 06:51 PM
Posted to Ind. Sup.Ct. Decisions | Indiana Decisions | Stage Collapse

Ind. Gov't. - This is a disaster! Supreme Court fenced hunting decision leads to DNR deregulating possession of many wild animals

Niki Kelly's must-read story this afternoon in the Fort Wayne Journal Gazette reports:

INDIANAPOLIS - More than 30 wild animals around the state - from alligators to bears and bobcats - will no longer be regulated by the Indiana Department of Natural Resources.

The agency recently sent letters to anyone with a wild animal possession permit saying an appellate court ruling - and the Supreme Court's refusal to review the case last month - means they have no authority to impose rules, restrictions or permits on legally-owned wild animals.

Really. The story continues:
DNR Spokesman Phil Bloom said there were 263 wild animal possession permits. The vast majority are for smaller animals, such as raccoons, squirrels and striped skunks.

But 38 of them were considered Class 3 animals. Those included 12 venomous snakes; eight black bears; seven alligators; six bobcats; two gila monsters; one wolf; one tiger and one cougar.

The Indiana Court of Appeals ruling related to whether the DNR had the ability to regulate or ban the hunting of deer behind fences on private property, also known as captive hunting. It said the legislature has the authority but attempts to reach a middle ground on high-fenced hunting failed this session. Then the Indiana Supreme Court refused to hear the case. [ILB: See this June 5, 2015 post]

The wild animal possession permit is in administrative rules - not statute passed by legislators.

"This basically throws open the door," Bloom said. "It's something that we regulated for a period of time in very public and open process through administrative rules procedures. We'll just have to see where it goes from here and what the will of the legislature is."

Many animals would still be covered under a federal U.S. Department of Agriculture permit but not all of them.

For instance, the federal permit covers only mammals. But the state permit covered venomous snakes or alligators and crocodiles over five feet long. * * *

Also, the USDA requires a federal license only if the person is exhibiting, breeding or selling the animals.

The state permit went further to cover anyone simply possessing wild animals as pets. It had extensive enclosure and care requirements for the animals, as well as inspection powers.

ILB readers may recall the October, 2011 disaster in Ohio. The WSJ reported on Oct. 20, 2011 under the heading "One Man's Zoo Turns Into a Killing Field in Ohio":
A rural area near Zanesville, Ohio, was turned into a killing zone Tuesday evening and Wednesday as authorities destroyed 48 exotic animals—including 12 lions, eight bears and 18 endangered Bengal tigers, after their owner released them and apparently took his own life. * * *

Ohio is among 10 states with the weakest restrictions on exotic pets, said Wayne Pacelle, president of the Humane Society of the U.S. "It's become ground zero for the exotic animals trade" as dealers have moved from other states to set up shop in Ohio to avoid tougher regulation elsewhere, he said.

At the time the ILB quoted WTHR 13:
In the state of Indiana, the exotic animal licensing laws are fairly strict for private owners. * * *

But in Ohio, there are no state exotic animal laws which opened the door for the situation in Zainesville to unfold.

See this longer story from the Oct. 19, 2011 ABC World News. A quote:
[T]his week's incident in Ohio could be a cautionary tale for states across the country.

"It's up to the states to pass strong laws prohibiting the citizens that live there from keeping these dangerous exotics," said Adam Roberts, executive vice president of Born Free USA. "Ohio is one of the bad actors as far as we're concerned -- a state that has very limited regulations on the keeping of exotic animals, especially as pets. ... We've been pushing in Ohio for them to change their law for many years."

Posted by Marcia Oddi on July 1, 2015 04:43 PM
Posted to Indiana Decisions | Indiana Government

Ind. Courts - "Vanderburgh courts dress and conduct rules are relaxed "

Updating a May 29th ILB post, Mark Wilson of the Evansville Courier & Press reports today in a story that begins:

EVANSVILLE - Gum chewing in the courtroom is still forbidden but an amended update of Vanderburgh County court policies has greatly scaled back dress requirements for the public.

The local court rule titled "Conduct, Dress, and Court House Policies" addressing courthouse behavior was effective beginning on July 1. It covers everything from behavior, appearance and dress to prohibited items such as weapons.

The rule, which applies to both Superior and Circuit courts, was open for public comment in June.

"We had a lot of comments from the public and the bar (Evansville Bar Association)," said Superior Court Chief Judge Richard D'Amour.

The original proposal applied to litigants, witnesses and spectators, as well as lawyers, and covered the entire courthouse. It barred T-shirts, shorts, flip-flops, sweatpants, pajamas, sleeveless shirts and hats, as well as exposed midriffs and suggestive or otherwise inappropriate clothing.

That has changed.

"Now we have limited it to the courtrooms," D'Amour said. "The judges still expect proper attire but we leave it up to the individual judges."

Posted by Marcia Oddi on July 1, 2015 01:47 PM
Posted to Indiana Courts

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

In USA v. Willie Harris (ND Ind., Simon), a 16-page opinion, Judge Bauer writes:

On May 10, 2013, defendant-appellant, Willie J. Harris, was convicted of two counts of fraud and one count of conspiracy to commit fraud with identification documents in violation of 18 U.S.C. §§ 1028(a)(7), 1028(f), 1029(b)(2), and 1349, three counts of production and trafficking in counterfeit devices (credit card fraud) in violation of 18 U.S.C. § 1029(a)(2), and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A. The district court sentenced Harris to 156 months’ imprisonment and ordered him to pay $299,298.67 in restitution. On appeal, Harris contends that the court erroneously denied his pretrial motion to suppress and that there was insufficient evidence to support his conviction. He also appeals his sentence, arguing that the district court erred in applying a number of sentencing enhancements and imposed an unreasonable sentence. For the reasons that follow, we affirm.

Posted by Marcia Oddi on July 1, 2015 01:36 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court denies transfer in Mid American Sound

The Court of Appeals decision in J.P. et al. v. Mid American Sound, et al (Jan. 14, 2015 ILB summary here), holding:

Polet moved for partial summary judgment on the State’s affirmative defense it was immune under the ITCA. The trial court denied her motion. Polet argues the limits on the State’s aggregate tort liability, as applied to her, violate the Indiana Constitution’s open courts and equal privileges guarantees. * * *

The application of the ITCA aggregate liability cap to Polet did not violate the open courts clause of the Indiana constitution, nor was Polet in a class of persons treated unequally compared to other claimants seeking relief under the ITCA. We accordingly affirm.

was denied transfer by the Supreme Court on June 29, 2015. The vote was 3-2:
Rush, C.J., and Rucker and Massa, JJ., concur.

Dickson and David, JJ., dissent to the denial of transfer, believing the case warrants the Courtʼs consideration as to whether the Indiana Tort Claims Actʼs aggregate liability cap is unconstitutional as applied to the appellants in these particular circumstances where the legislature has increased the amount of money available to the victims yet the appellants are denied the opportunity to participate in any recovery.

ILB: Here is a news release from the Indiana Attorney General.

Posted by Marcia Oddi on July 1, 2015 01:14 PM
Posted to Ind. Sup.Ct. Decisions | Stage Collapse

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

For publication opinions today (1):

In Joseph M. Johnson, III v. State of Indiana, a 14-page opinion, Judge Friedlander writes:

Joseph M. Johnson III appeals his conviction of Criminal Trespass, a class A misdemeanor, presenting the following restated issues for review:
1. Is the criminal trespass statute unconstitutionally vague as applied in this case?
2. Did the court properly apply the “mistake of fact” defense?
3. Was the evidence sufficient to sustain the conviction?
We affirm. * * *

In resolving this issue, we need not determine the full extent of the physical boundaries of Lee’s authority to order Johnson from common areas of the apartment complex, i.e., areas located adjacent to but outside her apartment unit. This is because, as set out above, the trial court found that Johnson went beyond the common areas of Lee’s apartment building and stood in the threshold of the doorway to her apartment such that she could not close the door. See Walls v. State, 993 N.E.2d 262. Upon this set of facts, which is the one we must accept, Johnson’s belief that he had a right to stand in the doorway to Lee’s apartment such that she was prevented from closing it, and that she lacked authority to order him to leave that location was not reasonable. The trial court did not err in rejecting Johnson’s mistake-of-fact defense.

NFP civil decisions today (2):

In re the Matter of the Involuntary Termination of Parent-Child Relationship of D.V., L.P.V., and J.M., Minor Children, T.F. (Mother) and L.V. (Father) v. Ind. Dept. Child Services et al (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of Je.Q., Ja.Q., and N.Q., Children, and T.Q.(Mother) & A.Q. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (3):

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

Jeffrey Billeaud, Jr. v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on July 1, 2015 10:15 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court posts one, dated June 30th

In Asplundh Tree Expert Co. v. Indiana Department of State Revenue, an 11page opinion, Judge Wentworth writes:

Asplundh Tree Expert Company has appealed the Indiana Department of State Revenue’s denials of its claims for a refund of use tax. The matter is currently before the Court on Asplundh’s Motion for Partial Summary Judgment. Asplundh’s Motion presents two issues that the Court restates as: 1) whether Asplundh properly paid Indiana use tax on its out-of-state purchases of commercial motor vehicles; and if so, 2) whether the imposition of use tax violated the Commerce Clause of the United States Constitution. Finding that Asplundh properly paid use tax on its vehicle purchases and that the imposition of use tax did not violate the Commerce Clause, the Court grants partial summary judgment to the Department.

Posted by Marcia Oddi on July 1, 2015 10:10 AM
Posted to Ind. Tax Ct. Decisions

Tuesday, June 30, 2015

Ind. Courts - A Look at the Indiana Supreme Court’s June Opinions

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

Updating this post from June 16, the Indiana Supreme Court issued three of the eight oldest cases on its docket in the second half of the month: two life without parole cases (Lewis and Satterfield) and the no-oral-argument plea agreement case (Russell). The following five cases argued in February or earlier remain pending:

Criminal Cases (4)

  • December 18: Sampson v. State - admissibility of testimony regarding coaching and Child Sexual Abuse Accommodation Syndrome

  • January 21: Ward v. State - Confrontation Clause issue and failure to present a cogent argument for state constitutional claim

  • January 21: Hall v. State - admissibility at child molesting trial of a transcript of a telephone conversation between defendant and the child’s mother (in which the mother provided the defendant with information he could use to impeach the child)

  • February 26: Layman, Sparks, and Sharp v. State (the “Elkhart 4”) - applicability of felony murder when a co-perpetrator was killed by a homeowner during a burglary
Civil Cases (1)
  • February 26: Markey v. Estate of Markey - time limit within which an action for a breach of contract to make a will must be filed
As explained in the June 16 post, the Indiana Supreme Court does not operate on a term like the U.S. Supreme Court. It is not required, or expected, to issue opinions in all argued cases by the end of June. The following table includes a wealth of information about the Court’s twelve opinions issued in June. (I plan to compile and share the same information for the entire year soon.)

Six opinions were in civil cases, and six were in criminal cases. Two of the criminal cases were direct appeals to the Supreme Court because the sentence was life without parole.

The Wait for an Opinion: By the Numbers

It took an average of about eight months (233 days) from the time a case arrived at the Court until an opinion was issued. Of that time period:

  • The shortest period was the average of 45 days from the time transfer was granted or an order setting oral argument was issued until the argument was held. Lawyers were given between 29 and 70 days to prepare. The most surprising numbers are the 118 and 132 days it took to schedule oral argument after a life without parole case was briefed. I don’t know why an LWOP case would not be scheduled within the same one or two month period common in transfer cases.
  • The longest time period was the average of about four and a half months (133 days) from the time a case was argued until an opinion was issued. Some opinions came in less than three months (83 and 85 days) or took as long as nine months (215 days in State Farm v. Earl).
The Path to an Opinion

Most of the June cases followed the conventional path of being discussed at the Court’s weekly conference, followed quickly by an order granting transfer, and (usually days later) an order scheduling oral argument. In Stafford, though, the justices scheduled argument to decide whether to grant transfer and then issued an order the afternoon of the argument granting transfer. In Kramer and Smith, the justices heard argument on whether to grant transfer but took no action until entering an order granting transfer the same day the opinion was issued. That state of limbo—three months in Smith and nearly nine months in Kramer—can be difficult to explain to clients. Although one expects the Court to issue an opinion in a case if transfer is not denied shortly after oral argument, the justices occasionally deny transfer months after hearing oral argument, perhaps with one or two justices expressing their dissenting view. As in Thompson last month.

No oral argument was held in three cases. Miller and Celebration are understandable. Each addressed a narrow issue on which the justices were in unanimous agreement. Russell is somewhat surprising, as the justices took nearly a year to issue an opinion, in which Justice Massa dissented and Chief Justice Rush concurred only in the result. Although it appears the defense and State were on the same side (arguing for reversal of the Court of Appeals and upholding the enforceability of the plea agreement they negotiated in the trial court), the U.S. Supreme Court sometimes appoints counsel to argue “orphaned positions.” As a 2010 NYT article explains, former Supreme Court clerks are often assigned the task, which is seen as “an incredible honor and not something you say no to.”

Although an opinion was certainly expected in Russell because transfer was granted, it likely came as a bit of a surprise in Miller and Celebration, where the relatively short delay (69 and 104 days) would not signal to the lawyers that the justices were crafting and would soon issue an opinion—with none of the more common prefatory signs of an order granting transfer or order scheduling argument.

Transfer Seldom Granted to Affirm the Court of Appeals

The principal grounds for transfer in Appellate Rule 57(H) include such things as conflicts in Court of Appeals’ opinions. Thus, the justices will sometimes grant transfer to reach the same result the Court of Appeals, agreeing with the panel in the case before it and overruling the conflicting opinion(s). But in June, as in previous posts on this topic, most opinions reach the opposite result from the Court of Appeals. Of the ten transfer opinions, the Supreme Court reached the same result as the Court of Appeals in just two cases and agreed in part in one other—or 25% affirmance of the Court of Appeals on issues addressed on transfer.

Trial courts fare much better. The Supreme Court affirmed the trial court in seven and a half of the ten transfer cases. The justices affirmed the trial court in both LWOP cases, except for a limited remand in Lewis for a new sentencing order.

Unanimity Reigns

Ten of the twelve opinions (83%) were unanimous, which is consistent with a high percentage of unanimous opinions since Chief Justice Rush joined the Court in late 2012. The only dissents were in Kramer v. Catholic Charities (Justice Dickson) and Russell v. State (Justice Massa). Yes, Republican-appointed justices disagreed with opinions written by other Republican-appointed justices. The sole justice appointed by a Democratic governor was not the odd man out. As I’ve written before, the Indiana Supreme Court is not a partisan court, which was proven true again in June and hopefully continues in the future.

Posted by Marcia Oddi on June 30, 2015 09:03 PM
Posted to Indiana Courts | Schumm - Commentary

Ind. Gov't. - "Court should stay out of legislative matter, GA motion says"

Niki Kelly of the Fort Wayne Journal Gazette has posted a story referencing the court filing the ILB posted earlier this afternoon. Some quotes from the story:

INDIANAPOLIS -- Indiana courts have no business deciding disputes involving the Indiana House, according to a motion filed in a lawsuit about the House's attempts to conceal legislator communications.

Indianapolis attorney Geoffrey Slaughter filed a motion to dismiss the case Friday.

"Under separation of powers principles, courts are not to meddle in the affairs of an equal, coordinate branch of state government," the court records said.

"The General Assembly chose to apply the public records act to certain legislative bodies, including itself. But this statutory enactment is legally insufficient to overcome the separation of powers limitation on the court's ability to grant plaintiffs relief."

The documents said "mere statutes cannot trump the judiciary's constitutional obligation" to refrain from getting involved in legislative affairs.

The motion is the latest in a case filed in April by the Citizens Action Coalition of Indiana, Energy and Policy Institute and Common Cause Indiana. They sued about a public records request for correspondence between Republican Rep. Eric Koch and various utilities regarding a bill about solar power. * * *

The motion to dismiss also cautioned that opening up legislator communications would interfere with their ability to enact laws.

"Nothing is more fundamental to a legislator's central role than his considering ideas for proposed legislation, weighting their merits and de-merits, hearing from those likely to be affected, and then undertaking to transform worthy concepts into specific legislative text," the motion said. "Each of these steps entails communications with others, sometimes many others, including but not limited to one's colleagues, constituents and staff."

Slaughter argued in his brief the long-standing practice of treating correspondence as confidential is a common-sense approach to fostering open communications.

Any change "would have the effect of stifling the very communications with and between legislators that are essential to the legislative process and that are fundamental to citizens exercising their First Amendment right to petition the government for redress of grievances."

Posted by Marcia Oddi on June 30, 2015 02:35 PM
Posted to GA and APRA | Indiana Government

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

In David Lawson v. Sun Microsystems, Inc. (SD Ind., Young), a 21-page opinion, Judge Sykes writes:

David Lawson sold computer maintenance and support services for StorageTek, Inc., mostly to large corporations. He was paid a base salary and commissions on his sales under an annual incentive plan promulgated by the company. Sun Microsystems, Inc., acquired StorageTek in August 2005. At the time Lawson was working on a large sale to JPMorgan Chase & Co., but the deal did not close until March 2006. If StorageTek’s 2005 incentive plan applied, Lawson would earn a seven-figure commission, perhaps as high as $1.8 million. If instead the sale fell under Sun’s 2006 incentive plan, his commission would be far less—about $54,000. Sun determined that the 2006 plan applied and tendered the lower commission. Lawson refused it and sued for breach of contract and violation of Indiana’s Wage Claim Statute. He argued that the 2005 plan continued in effect through at least March 2006, when the JPMorgan Chase deal was finalized.

The district court rejected the statutory wage claim but submitted the contract claim to a jury, which found in favor of Lawson and awarded $1.5 million in damages. Sun appealed, and Lawson cross-appealed to challenge the district court’s ruling on the statutory claim.

We reverse and remand with instructions to enter judgment for Sun. The sale did not qualify for a commission under the terms of the 2005 plan. Although the original plan documents said the plan would remain in effect until superseded by a new one, a September 2005 amendment set a definite termination date for the plan year: December 25, 2005. To earn a commission under the 2005 plan, sales had to be final and invoiced by that date. Because Lawson’s sale wasn’t finalized and invoiced until March 2006, Sun is entitled to judgment as a matter of law. This conclusion necessarily defeats the cross-appeal. * * *

In sum, the JPMorgan Chase sale unambiguously did not qualify for a commission under the 2005 plan. And because Lawson was not entitled to a commission under the 2005 plan, his claim for unpaid wages under the Indiana Wage Claims Statute necessarily fails.

Accordingly, we REVERSE the district court’s judgment and REMAND with instructions to enter judgment for Sun.

Posted by Marcia Oddi on June 30, 2015 02:14 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - The General Assembly and the APRA

The ILB recently has had a number of posts on the issue of public access to e-mails and other records of the Indiana General Assembly.

The most recent line involves reporter Niki Kelly's now much republished June 24th story from the Fort Wayne Journal Gazette, which was headed "House brings in lawyer for fight over records." This was followed the next day by a Dave Bangert Journal&Courier column headed "$440/hour to defend this guy’s secrets." See also this June 1 post, Masariu General Assembly lacks policy on accessible records," also quoting a story by Kelly.

This April 15th ILB post is titled "Lawsuit filed for certain House Republican caucus emails." It includes a link to the complaint in the lawsuit filed by "Citizens Action Coalition (CAC), Common Cause Indiana, and the Energy and Policy Institute (EPI) in Marion County Circuit/Superior Court against the Indiana House Republican Caucus and State Rep. Eric Koch (R, Bedford) for violating the Indiana Access to Public Records Act (APRA)," plus a number of background links, inclding to rulings of the Public Access Counselor. It was followed on April 28th by this post quoting stories detailing how "A last-minute push to protect state lawmakers from having to disclose public records, including their emails and other documents, has stalled, but is likely to resurface next year."

But instead, as reporter Kelly wrote on June 1st:

[J]ust after session ended in late April, the House came out with an updated work product definition that appears to cover any and all communications of any kind.

“Work product of the individual members, the staff and officers of the House of Representatives includes but is not limited to, documents, notes, or other writing or records, in any form, composed, edited, or modified by members, staff or officers of the House and any communications that are made or received by means of electronic mail, voice mail, text messaging, paper or video audio recording or in any other form.”

The Senate did not make changes to its rules or definition.

Bosma’s spokeswoman, Tory Flynn, declined to explain the definition or give examples of things that would not be covered by the definition.

So today the ILB has obtained copies of several documents:
  • First, the 5-page enagagement letter: "Engagement for Joint Representation in Pending Litigation: Citizens Action Coalition of Indiana et al. v. Eric Koch and Indiana House Republican Caucus," entered into by Speaker Bosma and Rep. Koch, and by attorney Geoffrey Slaughter of Taft Stettinius & Hollister LLP. This was the center of the story: "House brings in lawyer for fight over records."

    Second, the 18-page defendants' memo in support of its motion to dismiss in the lawsuit to obtain public records from the House caucus.

To more readily locate all the posts relating to the General Assembly and the Access to Public Records Act, the ILB is creating a new category, GA and APRA.

Posted by Marcia Oddi on June 30, 2015 12:52 PM
Posted to GA and APRA | Indiana Government

Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 29 NFP memorandum decisions)

For publication opinions today (6):

In Wilmington Savings Fund Society, FSB, Not In Its Individual Capacity But Solely as Trustee for the Primestar-H Fund I Trust v. Ty Bowling and Asset Acceptance, LLC, a 9-page opinion, Sr. Judge Garrard writes:

Ty Bowling executed a promissory note and secured the note by executing a mortgage on property located in Madison, Indiana. He later defaulted on the note. A complaint was filed naming Bowling and a judgment lien holder, Asset Acceptance, LLC, as defendants to the action. Wilmington Savings Fund Society, FSB, not in its individual capacity but solely as Trustee for the Prime Star-H Fund I Trust, brings this interlocutory appeal from the trial court’s order granting partial summary judgment in favor of Wilmington on the issue of enforcement of the note but finding genuine issues of material fact existed precluding entry of summary judgment on the mortgage foreclosure. We affirm. * * *

The trial court did not err by denying summary judgment on foreclosure of the mortgage and granting it on the note.

In Tikidanke Bah v. Mac's Convenience Stores, LLC d/b/a Circle K and David Ruffin , a 25-page, 2-1 opinion, Judge Crone writes:
Tikidanke Bah was a store manager for Mac’s Convenience Stores, LLC d/b/a Circle K (“Circle K”). Bah’s supervisor, David Ruffin, suspected that she had stolen money from the store, which she denied. Ruffin terminated Bah’s employment and contacted the police. The prosecutor charged Bah with theft. After a trial, the jury found her not guilty.

Bah filed a complaint against Circle K and Ruffin (collectively “Appellees”) asserting eight counts: false imprisonment, two counts of defamation, malicious prosecution, negligent supervision, vicarious liability, intentional infliction of emotional distress, and negligent infliction of emotional distress. Appellees filed a motion for summary judgment as to all eight counts as well as a motion to strike certain evidence designated by Bah. * * *

We affirm the trial court’s grant of summary judgment in Appellees’ favor on Bah’s claims for negligent supervision, negligent infliction of emotional distress, and malicious prosecution. As to the remaining claims, we reverse and remand for further proceedings.

Pyle, J., concurs.
Brown, J., dissents with opinion. [which begins, at p. 23] I concur with the majority as to its conclusions in Sections 1, 2.1, and 2.2, but respectfully dissent from its conclusion that the Appellees are not entitled to summary judgment on Bah’s remaining claims based on the qualified privilege defense.

In Lawrence J. Anderson v. State of Indiana , a 7-page opinion, Chief Judge Vaidik writes:
The Indiana Supreme Court has held that walking through an open door does not satisfy the “breaking” element of burglary—but opening an unlocked door does. In this case, the defendant “rushed” a victim to gain unauthorized entry into a dwelling when the door was voluntarily opened for another person whom the victim was expecting. We find that “rushing” someone to gain unauthorized entry is sufficient evidence of force used. Thus, we affirm the defendant’s conviction for Class A felony burglary.
In Scott Grundy v. State of Indiana , a 19-page opinion, Judge Najam writes:
Scott Grundy appeals his conviction for Aggravated Battery, a Class B felony, and his habitual offender adjudication. Grundy presents three issues for our review, which we revise and restate as:

1. Whether the State presented sufficient evidence to support his conviction.
2. Whether his sentence is inappropriate in light of the nature of the offense and his character.
3. Whether the trial court erred when it enhanced his sentence under the prior version of the habitual offender statute.

We affirm Grundy’s conviction and his sentence, and we hold that the July 1, 2014, revisions to the habitual offender statute, Indiana Code Section 35-50-2-8, do not apply retroactively to offenses committed prior to the effective date of our new criminal code.

In Saundra S. Wahl v. State of Indiana, a 30-page, 2-1 opinion involving a daycare facility, Judge Riley concludes:
Based on the foregoing, we conclude that (1) there was sufficient evidence to support Wahl’s conviction for involuntary manslaughter; (2) the trial court did not abuse its discretion in denying Wahl’s motion to correct error based on jury misconduct; (3) Wahl’s sentence is appropriate; and (4) the trial court did not abuse its discretion in ordering restitution. Affirmed.

Barnes, J. concurs
Bailey, J. dissents with separate opinion [which begins, at p. 26] I respectfully dissent, because cumulative error denied Wahl a fair trial. I am convinced that the alternate juror crossed a line in his persistent efforts to influence the duly-selected jurors. Even more egregious, Wahl’s Involuntary Manslaughter conviction was achieved by merging regulatory concepts into the definition of recklessness as set forth by our Legislature in the Criminal Code. Administrative code provisions, State’s Exhibit 65, were submitted as “evidence.” The practical effect, however, was that the provisions were used to supplement the trial court’s instruction on the law and the jury was, in essence, invited to impose a form of strict criminal liability for a child care provider’s non-compliance with provisions of an administrative code. In light of the very tragic events, the jury complied.

In Daniel P. Wahl v. State of Indiana , a 24-page, 2-1 opinion in a case involving a daycare facility, Judge Riley concludes:
Based on the foregoing, we conclude that (1) there was sufficient evidence to support Wahl’s conviction for involuntary manslaughter; (2) the trial court did not abuse its discretion in denying Wahl’s motion to correct error based on jury misconduct; (3) Wahl’s sentence is appropriate; and (4) the trial court did not abuse its discretion in ordering restitution. Affirmed.

Barnes, J. concurs
Bailey, J. dissents with separate opinion [which reads in full, on p. 24] For the reasons expressed in my dissent in Saundra Wahl v. State, No. 29A04-1409-CR-418, I respectfully dissent.

NFP civil decisions today (4):

Starla Gough v. Dale Gough (mem. dec.)

Theodore Miller v. LVNV Funding LLC (mem. dec.)

In the Matter of the Paternity of H.J., Melissa R. Jallow v. William R. Fat-Anthony (mem. dec.)

Brittany N. Veal v. Indiana Department of Workforce Development (mem. dec.)

NFP criminal decisions today (25):

T.D.G. v. State of Indiana (mem. dec.)

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

Lamarr T. Crittenden v. State of Indiana (mem. dec.)

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

Cory C. Carter v. State of Indiana (mem. dec.)

Donald Probst v. State of Indiana (mem. dec.)

Duane R. Tackett v. State of Indiana (mem. dec.)

Michael A. Powers v. State of Indiana (mem. dec.)

Estel Lynn v. State of Indiana (mem. dec.)

Demetrius Howell v. State of Indiana (mem. dec.)

Ivan Green v. State of Indiana (mem. dec.)

Charles Sweeney v. State of Indiana (mem. dec.)

Brian E. Connell v. State of Indiana (mem. dec.)

Jesse E. Kaufman v. State of Indiana (mem. dec.)

Tierra Greene v. State of Indiana (mem. dec.)

Marvin T Boothe, Jr. v. State of Indiana (mem. dec.)

Allen Moore, Jr. v. State of Indiana (mem. dec.)

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

Glenda Helton v. State of Indiana (mem. dec.)

Reginald Gant v. State of Indiana (mem. dec.)

Devynn Dixon-McNairy v. State of Indiana (mem. dec.)

Tony Dean v. State of Indiana (mem. dec.)

Leon Payne v. State of Indiana (mem. dec.)

Kevin M. Plummer v. State of Indiana (mem. dec.)

Michael L. Bowling v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on June 30, 2015 12:15 PM
Posted to Ind. App.Ct. Decisions

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

Updating this ILB post from August 9, 2013, Mike Emery reports today in the Richmond Pal-Item, in a long story headed "Ex-attorney asks court to dismiss 27 charges." Some quotes:

Charles R. Hyde Jr., through his attorney, Austin Shadle, filed the motion to dismiss Monday in Wayne County Superior Court I. Judge Marianne L. Vorhees of Delaware County Circuit Court, who was appointed as a special judge in the case, will decide the motion.

Hyde has been charged with 26 counts of Class D felony theft and one Class C felony count of corrupt business influence.

Charges originally were announced on the Wayne County Prosecutor’s Office’s Facebook page on June 21, 2013. According to that post, “Mr. Hyde is accused of taking money from 14 clients who were seeking to file bankruptcy and failing to render legal services.”

Hyde resigned on May 25, 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. * * *

The motion to dismiss lists several reasons for the court to throw out the 27 counts, including that the alleged offenses do not constitute theft, that the allegations fail to show Hyde had fraudulent intent, that he referred clients to another attorney to complete their bankruptcies, that some charges would amount to double jeopardy and that the statute of limitations had expired before some charges were filed.

The motion claims the state cannot prove theft occurred because the legal fees paid to Hyde became his property. The motion also says the charges against Hyde do not allege what portion of the fees should have been refunded to the clients, and would therefore have been stolen, because investigators did not determine how much legal work Hyde and his staff performed for each client.

Charges also do not sufficiently demonstrate Hyde knew when accepting the payments that he would not complete the performance of legal services, which he failed to do when he resigned his law license and his practice became defunct, according to the motion.

Posted by Marcia Oddi on June 30, 2015 09:54 AM
Posted to Indiana Courts

Monday, June 29, 2015

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

In Richard Bell v. Cameron Taylor (SD Ind., Pratt), an 8-page opinion, Judge Flaum writes:

Richard Bell sued various defendants for copyright infringement, accusing each of impermissibly displaying a photo that he owns on websites promoting their respective businesses. Bell’s complaint sought both damages and an injunction prohibit-ing future use of the photo. The defendants moved for summary judgment on the damages issue, arguing that Bell cannot demonstrate how they caused him financial harm and, thus, that he is not entitled to monetary recov-ery. The district court granted the motion, and Bell ap-pealed. In addition to the summary judgment ruling, Bell contests the district court’s denial of two motions to com-pel and a motion seeking leave to file a fourth amended complaint.

We have no jurisdiction to decide these issues. Alt-hough the court purported to issue a “final judgment” after ruling on the defendants’ summary judgment mo-tion, it did so in error; the issue of injunctive relief was never adjudicated. Because Bell’s copyright claim was not entirely disposed of by the district court’s summary judgment ruling, the judgment—by definition—was not final. Accordingly, an appeal in this case is premature until the district court resolves Bell’s outstanding claims for injunctive relief.

Richard Bell, a lawyer and photographer, alleges that three small Indianapolis business owners (and the small businesses of two of those three defendants), violated federal copyright laws (and an Indiana theft statute) by publishing on the internet a photo that he took of the Indianapolis skyline without his authorization. * * *

For the foregoing reasons, we DISMISS this appeal for lack of jurisdiction and REMAND to the district court for resolution of the outstanding issues identified in this opinion.

Here are some links to earlier stories about this issue.

Posted by Marcia Oddi on June 29, 2015 07:11 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court posts a 3rd opinion today

In Jeffrey M. Miller and Cynthia S. Miller v. Kristine C. Danz, a 6-page, 5-0 opinion, Justice Dickson writes:

This appeal challenges summary judgment in favor of a named defendant substituted in an amended complaint for a previously unknown "John Doe" defendant after expiration of the applicable statute of limitations. We affirm. * * *

Danz moved for summary judgment on grounds that Miller's attempt to add her as a named party was barred by the two-year statute of limitations and, further, that Miller's claims for defamation failed on the merits. After a hearing at which the parties primarily argued the statute of limitations issue, the trial court granted Danz's motion for summary judgment and di-rected that final judgment be entered. The trial court did not issue findings of fact or conclusions of law. The Court of Appeals affirmed. Miller v. Danz, 27 N.E.3d 774 (Ind. Ct. App. 2015). * * *

Finding that the existence and identity of Kristine C. Danz was not unknown to the plain-tiff before he commenced this action, yet he waited until after expiration of the applicable statute of limitations to substitute her name for John Doe #8, we affirm summary judgment in Danz's favor.

Posted by Marcia Oddi on June 29, 2015 04:17 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court posts 2nd opinion today

In Celebration Worship Center, Inc. v. Patrick Tucker and Carolyn P. Tucker, A/K/A Patty Tucker, a 10-page, 5-0 opinion, Justice Dickson writes:

This appeal challenges summary judgment for claimants establishing title to and use of real property by adverse possession and by prescriptive easement. Finding no genuine issue of material fact, we affirm the trial court.

Posted by Marcia Oddi on June 29, 2015 04:12 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Governor Pence Announces Tax Amnesty to Be Conducted in Fall 2015"

Gov. Pence has announced implementation of the tax amnesty program established by the 2015 General Assembly:

Governor Mike Pence today announced that the Indiana Department of Revenue will conduct Tax Amnesty 2015 from September 15 through November 16, 2015. Of the outstanding taxes collected, the first $84 million will fund the Indiana Regional Cities Development Fund.

“To continue to attract new investment and talent across our state, we must grow locally and think regionally,” said Governor Pence. “The 2015 Tax Amnesty program plays a critical role in helping to jumpstart the Regional Cities Initiative, encouraging collaboration among Hoosier communities to develop ways to bolster investment, attract talent, and continue Indiana on a pathway to economic growth and success.”

Tax amnesty is a limited-time opportunity for both individuals and businesses to pay past-due base tax liabilities free of penalty, interest, and collection fees. Existing tax liabilities, for all tax types managed by the department, for periods ending prior to Jan. 1, 2013, are eligible to participate in Tax Amnesty 2015. Approximately 40 different tax types are eligible for participation.

In return for the full payment of the base tax, the state will:

Waive penalties, interest, and collection fees for eligible liabilities;
Release tax liens that have been imposed on existing liabilities; and
Not seek civil or criminal prosecution against any individual or entity.
Indiana’s first tax amnesty program was conducted in 2005, during which the state collected $244 million in taxes. Taxpayers who participated in the 2005 amnesty program are not eligible to participate in Tax Amnesty 2015.
Here is the new IDOR homepage for the amnesty program.

For background, start with this ILB post from May 6th.

Posted by Marcia Oddi on June 29, 2015 04:02 PM
Posted to Indiana Government

Ind. Courts - Expungement changes at the appellate court level [Updated]

In a COA opinion Friday (which the ILB and other users still can't pull quotes from ... UPDATE at 5:00 PM, this issue seems now to have been remedied) the plaintiff appealed the denial of her petition to expunge the records of a 2007 summons for a charge of class C misdemeanor illegal consumption of an alcoholic beverage. The trial court denied the petition because she had been summonsed rather than arrested. In a 4-page opinion the COA found that plaintiff was entitled to relief, and reversed and remanded with directions to expunge the relevant records.

Here is the irony. In the future, anyone searching for the plaintiff's name in this case will be likely to pull up the COA ruling. A reader has asked:

Why wouldn't the lawyer filing the case at least attempt to do it with initials? A COA opinion posted to the Internet defeats the whole purpose of expungement.
As of July 1, 2015, this may no longer be an issue. HEA 1302, at p. 3, appears to deal with the responsibility of the appellate courts when an arrest or charge did not result in a conviction. For instance, IC 35-38-9-1(f)(4) will read:
(4) with respect to the records of a person who is named as an
appellant or an appellee in an opinion or memorandum
decision by the supreme court or the court of appeals, the
court shall:
(A) redact the opinion or memorandum decision as it
appears on the computer gateway administered by the
office of technology so that it does not include the
petitioner's name (in the same manner that opinions
involving juveniles are redacted); and
(B) provide a redacted copy of the opinion to any publisher
or organization to whom the opinion or memorandum
decision is provided after the date of the order of
The supreme court and the court of appeals are not required
to redact, destroy, or otherwise dispose of any existing copy of
an opinion or memorandum decision that includes the
petitioner's name.
Reader #2 writes:
Indiana Admin Rule 9 is the answer. Unless the lawyer sought permission first, we aren't allowed to redact/exclude from public access without authority to do so. Hence the need for the new law.
Rader #1 writes:
I think a lawyer could file a "motion for leave to caption case with initials," citing Appellate Rule 1 and the statue, when filing the case. I think almost any COA motions panel would allow it. Also, the Supreme Court could amend the appellate rules to require all expungement cases be captioned with initials.

Posted by Marcia Oddi on June 29, 2015 11:20 AM
Posted to Ind. App.Ct. Decisions