Thursday, April 17, 2014

Ind. Gov't. - "AP Exclusive: Turner had more than $4M at stake in nursing home fight, has made millions more"; plus ILB resources

Updating this ILB post from April 14th, Tom LoBianco of the AP reports late this afternoon:

During much of the debate during the 2014 session, it appeared [Rep. Eric] Turner's son, developer Zeke Turner, had the most to lose if the five-year moratorium was enacted. But a financial document obtained by The Associated Press shows that Eric Turner had as much or more at stake because he owns 38 percent of Mainstreet Property Group, which builds nursing homes in Indiana and other states.

The information is included in a private offering from a subsidiary of Mainstreet Property Group looking to raise money for a proposed nursing home in Bloomington. The document refers to Eric Turner as a 50 percent owner of Mainstreet Capital Partners, which owns nearly 76.5 percent of Mainstreet Property Group.

Turner has consistently denied any wrongdoing. He issued a statement Thursday saying the moratorium would have had "no significant effect" on his business because investments in new facilities would simply have moved to other states. He acknowledged, as he has previously, that he holds an ownership stake in Mainstreet but did not disclose the amount.

"Consistent with the House Code of Ethics, I provided my particular expertise during discussions in caucus and disclosed I am an investor in an entity that invests in Mainstreet Property Group," Turner said. * * *

In a press release sent during the middle of the legislative fight, Mainstreet argued that five projects underway would be blocked by the ban. According to another Mainstreet financial document, two of the projects — in Lafayette and Terre Haute — were expected to net Mainstreet $5.4 million and $4.8 million, respectively.

In the case of those two facilities, Eric Turner stood to lose nearly $3.9 million if the ban had passed.

The Cicero Republican kept his distance from the issue in public, recusing himself from votes and abstaining from comment in hearings, including one where his son testified. But he lobbied other House Republicans in private meetings during the last two days of the legislative session and was successful in helping killing the legislation, several Republicans who were in those meetings told the AP.

House Ways and Means Chairman Tim Brown, R-Crawfordsville, said earlier this week that he knew of Turner's interest in the nursing home industry.

"Eric and I are friends and have had a lot of private conversations, so I'm aware of what's going on in Eric's life, yes," Brown said.

He didn't answer directly when asked if he had any concerns about Eric Turner taking actions in caucus that could reap him millions of dollars. Instead he offered a concern many lawmakers have: that stricter ethics rules could violate the spirit of Indiana's part-time Legislature, which brings in elected officials who are not full-time politicians.

Although most lawmakers have careers outside the Statehouse, ethics rules bar them from taking direct actions in the General Assembly that would directly benefit them or their family.

It's unlikely that Turner's actions violated that rule because his discussions occurred during private meetings of the House Republican caucus, which is not considered an official forum.

ILB Resources: The House announced today that its "Statutory Committee on Ethics" will meet next Wed., April 23, at 2 PM in Room 404 of the Statehouse. No word on whether it will be videocast.

Intrigued at why it was designated the "Statutory Committee," I found this statute, IC 2-2.1-3. Sec. 5 of this law creates the legislative ethics committees. Sec. 6, from 1974, requires each committee "to recommend a code of ethics for their respective houses by not later than 30 days after the first session day of each legislative session." (I linked to the House code in this earlier post; BTW, the Senate does not appear to have a Code of Ethics.)

Sec. 7 sets out other powers and duties of the committees, including:

(1) may receive and hear any complaint which alleges a breach of any privilege of the appropriate house, misconduct of any member or any violation of the respective code of ethics,
regardless of when the breach, misconduct, or violation is alleged to have occurred;
(2) may obtain information with respect to any complaint filed pursuant to this section and to that end may compel the attendance and testimony of witnesses, and the production of pertinent books and papers;
(3) may recommend whatever sanction is appropriate with respect to a particular member as will best maintain in the minds of the public a good opinion of the conduct and character of members of the general assembly;
(4) may recommend legislation to the general assembly relating to the conduct and ethics of members of the general assembly ....
The ILB has obtained and is posting a prescient 2006 Indiana Law Review article on legislative ethics, authored by Ed Feigenbaum. The title: "Legislative Ethics in Indiana: A Matter of Perception - And Perception Matters." It begins:
Few things are as critical to the effective and efficient performance of a democracy as the understanding by public officials that public service is a public trust. The system can only function properly if those responsible for legislating, implementing, and adjudicating our laws are motivated by public service, rather than by self-interest.

In a state such as Indiana, where service in the General Assembly is a parttime responsibility, this altruistic motivation becomes even more important as lawmakers must insulate—or separate—themselves from assorted outside influences that might adversely affect their ability to make impartial decisions and vote on matters without having their motives questioned over the perception or reality of those actions.

Posted by Marcia Oddi on April 17, 2014 06:08 PM
Posted to Indiana Government

Ind. Courts - More on: "Community Concerned About Brown Co. Courthouse Expansion"

Updating this ILB post from April 3rd, Laura Lane of the $$ Bloomington Herald-Times reports today:

Months after taxpayers said “no” to financing a plan to expand the Brown County Courthouse, the building is still short on space and violating disability access laws as county officials again try to convince residents to support a tax increase for an expansion.

Last fall, citizens on both sides of the issue carried petitions and gathered signatures from Brown County residents for and against the courthouse plan. The final tally was 8-1 against a tax hike for the project.

But county officials want to move forward and say they must at least bring the building into compliance with the Americans with Disabilities Act by making the restrooms wheelchair accessible and building ramps in the circuit courtroom, where stairs lead to the judge’s office.

Other options are adding on to the existing courthouse in the center of Nashville, or building a new facility adjacent to the law enforcement center just east of town.

During a meeting this week, about 50 citizens showed up to hear more and to speak their minds. * * *

The project would likely be financed by a $6.5 million bond issue. A resident with property assessed at $100,000 would pay an additional $22 per year in property taxes to fund the project.

The discussions in hope of reversing the tide against a courthouse expansion will continue over the next few months as county officials decide how to proceed.

Brown County Commissioner John Kennard said it will cost about $70,000 to bring the historic brick courthouse into compliance with the Americans with Disabilities Act, which requires that public buildings be accessible to people in wheelchairs.

Since there have been no formal citizen complaints filed regarding the lack of access, the county has not yet been forced to comply with the federal law. Kennard said he wants to make the improvements, but hesitates to spend the money since the alterations night be affected by a future expansion plan.

“From our study, the most logical answer is remodeling and expanding the existing courthouse. It’s old and fits the motif of the town,” Kennard said. “I think we have to at least make the building accessible. ... We are out of money, but we have to look at that and start somehow, and there’s no reason to do this twice if we go with the expansion.”

Posted by Marcia Oddi on April 17, 2014 04:10 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

In Geico General Insurance Company v. Laura B. Coyne, Cheryl A. O'Mailia, and James O'Mailia, a 29-page opinion, Judge Brown writes:

GEICO General Insurance Company (“GEICO”) appeals from the trial court’s Findings of Fact and Conclusions of Law Addressing Plaintiff’s Motion for a New Trial, entered on March 21, 2013, as well as from the court’s Final Order entered on June 5, 2013, in favor of Cheryl A. O’Mailia and James O’Mailia (collectively, the “O’Mailias”). GEICO raises three issues, which we consolidate and restate as whether the court erred in awarding attorney fees to the O’Mailias based upon GEICO litigating in bad faith. Additionally, the O’Mailias request appellate attorney fees pursuant to Ind. Appellate Rule 66(E). We reverse and also deny the O’Mailias’ request for appellate attorney fees. * * *

The issue is whether the court erred in awarding attorney fees to the O’Mailias based upon GEICO litigating in bad faith. * * *

Here the parties agree that GEICO did not violate the rules of discovery. There was no interrogatory or other tool of discovery related to the Florida Information, and accordingly GEICO was under no duty to supplement its discovery under Ind. Trial Rule 26(E). Under the circumstances, in which GEICO was not under a duty to disclose the Florida Information and it researched the scope of its duty to disclose before deciding not to do so, we conclude that GEICO did not litigate in bad faith. Accordingly, we reverse the trial court’s attorney fee award under Ind. Code § 34-52-1-1(b)(3). * * *

ROBB, J., concurs.
BARNES, J., concurs with separate opinion. [which begins, at p. 28] I concur with the majority that the award of attorney fees be reversed. I do so with some hesitation, though, because I believe that trial by ambush and rabbit-out-of-the-hat moments are not to be favored in our courtrooms.

In Teresa Fry n/k/a Teresa Dolan v. Michael Fry, a 12-page opinion, Judge Robb writes:
When Michael and Teresa Fry divorced in 2005, they agreed regarding child custody, parenting time, and support for their child, J.F. In addition, they agreed that Michael could exercise parenting time with respect to Teresa’s prior-born daughter, K.D., at his option. In 2012, Michael filed an emergency petition for modification of custody with respect to both children, alleging that Teresa suffers from a degenerative illness that renders her unable to adequately care for them. The trial court granted the petition, ordering that Michael have primary physical custody of both children and Teresa have supervised visitation. Teresa later filed a Trial Rule 60(B) motion for relief from judgment, seeking to void the order modifying custody as to K.D. The trial court denied the motion for relief and reaffirmed its previous orders. Teresa appeals the trial court’s denial of her motion for relief as to K.D. only, raising the sole issue of whether the trial court had jurisdiction in this post-dissolution matter to determine custody of K.D., who was not a child of the marriage. Concluding the trial court had jurisdiction and committed no legal error, we affirm. * * *

The trial court did not commit any legal error in considering Michael’s emergency petition, and Teresa does not dispute an emergency existed as found by the trial court in its July 26, 2012, order. The trial court’s order awarding custody of K.D. to Michael is therefore affirmed.

In Geoffrey A. Gilbert v. Melinda J. Gilbert, a 21-page, 2-1 opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the trial court did not abuse its discretion in granting Mother’s request to relocate because she had a good faith and legitimate purpose for relocating, and the move was not contrary to the Children’s best interests. Additionally, we conclude that Mother is not entitled to appellate attorney fees because Father’s appeal is not frivolous or in bad faith. Affirmed.

BARNES, J. concurs
ROBB, J. dissents with separate opinion [which begins, at p. 16] As noted by the majority, when a parent subject to a custody or parenting time order wishes to relocate and the other parent objects, the relocating parent must prove that the relocation is made in good faith and for a legitimate reason. If the relocating parent makes this showing, then the objecting parent must prove that the relocation is not in the child’s best interest. The majority decides that the record clearly supports the trial court’s conclusion that Mother desired to relocate in good faith and for a legitimate reason. I respectfully dissent.

In Charrise Belton v. State of Indiana, an 8-page opinion, Judge Bradford writes:
On March 7, 2013, Appellant-Defendant Charrise Belton was riding in a vehicle driven by her then-boyfriend, Tacolby Calloway. Belton waited in the vehicle while Calloway entered a home located near the intersection of 33rd Street and Orchard Avenue in Indianapolis. Calloway appeared to be under the influence of drugs when he exited the home approximately thirty minutes later. Calloway subsequently became upset with Belton and threatened to assault her. Fearing for her safety, Belton drove away from Calloway. Belton was stopped by a member of the Indianapolis Metropolitan Police Department for a traffic infraction approximately one-half of a mile away.

The State subsequently charged Belton with Class A misdemeanor driving while suspended. Following a bench trial, the trial court found Belton guilty as charged and imposed a 365-day suspended sentence. On appeal, Belton contends that the State did not present sufficient evidence to negate her necessity defense. Concluding that the evidence presented by the State was insufficient to negate Belton’s necessity defense, we reverse.

In Jason Taylor v. State of Indiana , a 9-page opinion, Chief Judge Vaidik writes:
Jason Taylor pled guilty to a Class D felony and was sentenced to eighteen months all suspended to probation in August 2004. Under his plea agreement, he was permitted to petition the court to reduce his conviction to a Class A misdemeanor if he successfully completed the terms of his probation. After successfully completing eighteen months of probation, he petitioned the trial court and it entered judgment as a Class A misdemeanor. In 2013, the Indiana legislature passed Indiana Code chapter 35-38-9, which allows convicted criminals to petition for expungement of previous crimes. Taylor appeals the denial of his petition for expungement under Indiana Code section 35-38-9-2. Although Taylor met all of the requirements in Indiana Code section 35-38-9-2(d), the trial court denied Taylor’s petition for expungement. Indiana Code section 35-38-9-2 states that if all conditions of the statute are met, the trial court shall order the conviction expunged. Nonetheless, the trial court denied the expungement relying on Indiana Code section 35-38-9-9(d), which requires a trial court to consider a victim’s statement before deciding on expungement. We determine that the word “shall” in Section 35-38-9-2(d) is mandatory language requiring expungement. And such an interpretation does not render Section 35-38-9-9(d) meaningless because that section applies to other parts of the statute where the trial court does have discretion to deny a petition for expungement. Therefore, we reverse the trial court. [Emphasis by ILB]
NFP civil opinions today (3):

In Re: the Marriage of: Gordon Somerville v. Effie K. Somerville (NFP)

Patrick R. Taylor v. Jason Evans, Curtis Evans, and Chrystal Evans (NFP)

Barbara Wiggles v. Sandlian Management Corporation d/b/a U-Stor Self-Storage (NFP)

NFP criminal opinions today (7):

Joshua Cornett v. State of Indiana (NFP)

K.P. v. State of Indiana (NFP)

Michelle D. Gauvin v. State of Indiana (NFP)

Thomas Curtis Edmond v. State of Indiana (NFP)

Gwendolyn F. Jones v. State of Indiana (NFP)

Daniel Torres v. State of Indiana (NFP)

Ben L. Macon v. State of Indiana (NFP)

Posted by Marcia Oddi on April 17, 2014 12:47 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - New Tax Court opinion, filed April 17th

In Larry G. Jones and Sharon F. Jones v. Jefferson County Assessor, a 6-page opinion, Judge Wentworth writes:

This matter is currently before the Court to decide whether the failure of Larry and Sharon Jones to timely request and file the Indiana Board of Tax Review’s administrative record warrants a dismissal of their original tax appeal. Given the particular facts of the case, the Court finds that their failure does not warrant a dismissal.

Posted by Marcia Oddi on April 17, 2014 11:33 AM
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - More on the Elkhart Four appeals

Yesterday, after posting about an unsuccessful St. Joseph County trial court challenge to a felony-murder charge, the ILB added, about another felony-murder case, now on appeal:

Here is an Oct. 9, 2013 ILB post on the "Elkhart Four" case.

Here is the docket of the appeal of two of the Elkhart defendants (Blake Layman and Levi Sparks) to the Court of Appeals.

Several amicus briefs have been filed in support of these two appellants. Here is one of the amicus briefs, this one submitted by the Indiana Public Defender Council. Notice footnote 1 on p. 3, which begins:

Although this Court cannot overrule an Indiana Supreme Court case, it can — and appropriately has — expressed its respectful disagreement and urged the Indiana Supreme Court to reconsider precedent.
The appeals of two of the "Elkhart Four" have been consolidated into this appeal. The third defendant who was tried (one of the four entered into a plea), Anthony Sharp, is appealing separately. Here is the docket in the Sharp appeal.

The ILB now has obtained a copy of the State of Indiana's 61-page brief in Layman/Sparks.

In addition, the ILB has obtained a copy of the amicus brief prepared for the Juvenile Law Center by Marsha Levick, who is now the attorney of record for the JLC.

Finally, for now, the ILB has obtained a copy of the brief of Appellant/Defendant Blake Layman. I'm told the Layman reply to the State's brief will be filed shortly.

The ILB has not yet obtained a copy of the brief of the second defendant in this appeal, Levi Sparks.

Posted by Marcia Oddi on April 17, 2014 09:55 AM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Appeals court judges hear arguments in Martinsville school shooting lawsuit"

Zach Myers of FOX59 has a good report on yesterday's Court of Appeals oral argument in MSD of Martinsville v. Rebecca Jackson et al, held at Taylor Universty in Upland, Indiana. From the story:

UPLAND, Ind. (April 16, 2014)– More than three years after two students were injured in a shooting at Martinsville West Middle School, the legal battle continues.

Michael Phelps is already serving a 30-year sentence following his conviction in the March 2011 shooting. But now, the victims in the shooting are going after the Metropolitan School District of Martinsville with a lawsuit. The families of Chance Jackson and Brandon Kent say school officials didn’t do enough to keep the two boys safe.

Attorneys for both sides gave oral arguments before three Indiana Appeals Court Judges Wednesday. The Appeals Court is hearing the case after another judge denied the school district’s motion to dismiss it.

Attorneys for Jackson and Kent argued that staff members at the school didn’t follow their own safety plan well enough to keep Michael Phelps from entering the school on the morning of the shooting. Phelps had been previously banned from school property.

“We’re not arguing against the plan,” said Ian Thompson who represents Kent’s family. “But the failure of these staffers, who specifically knew that Micahel Phelps was, for lack of a better term, public enemy number one at this point. This kid had threatened to blow up the school three weeks prior to this incident.”

Tom Blessing, who represents Chance Jackson and his mother, argued that school staff members failed to prevent Phelps from entering the building.

“So then, Phelps goes by this bike rack within I believe ten for fifteen feet, as the testimony shows, of two staff members who are standing right there and don’t see him.”

The focus of the arguments is important as it pertains to immunity under state law. School officials argue that having the safety plan in place should give the school district immunity.

Attorney Tony Overholt, representing Martinsville Schools, compared the arguments to Monday morning quarterbacking.

“Anybody can always come along and say.. you could have done more, you should have done more, you should have spent more money, you should have done this, you should have done that,” he said.

The school district also countered the victims’ arguments by turning attention back on Chance Jackson himself. The district claims Jackson could have done more to avoid Phelps on that morning. The district says Jackson had several warnings about Phelps coming to the school to confront him, and the two boys had a long history of trash talk between them.

“Chance Jackson was told three times that morning, Michael Phelps is going to come and kick your a**,” Overholt said.

Judges Paul Mathias, Margret Robb and Cale Blackford will decide what happens next. While the Indiana Appeals Court can often come back with a decision in four to six weeks, Judge Mathias said it could take two months with this case. He noted the potential implications for school districts across the state.

Posted by Marcia Oddi on April 17, 2014 09:43 AM
Posted to Indiana Courts

Ind. Courts - "Eight plaintiffs added to Clark Drug Court suit"

Adding to the long list of stories about the Clark County Drug Court program, Charlie White of the Louisville Courier Journal reports:

Eight more Clark County Drug Court program participants are now listed in a federal civil-rights lawsuit, doubling the number of those claiming their rights were violated by county officials involved with its embattled treatment program.

Most in the suit, including the new plaintiffs, say they were jailed longer than the 72 hours allowed before conducting required hearings or having attorneys appointed to represent them.

Some of the plaintiffs claim they were arrested by drug court workers with no arrest powers and faced improper searches or the possibility of being in violation of drug court. The court was suspended in mid-February by the Indiana high court after allegations of unlawful conduct by drug court staff and practices harmful to participants.

“I’ve been trying to figure out why it was being run the way it was,” said Louisville attorney Mike Augustus, who filed the amended complaint in U.S. District Court in New Albany last week. * * *

U.S. District Judge Sarah Evans Barker is expected to decide whether to certify it as a class-action suit.

Augustus believes the number of plaintiffs will rise from 16 to more than 40 based on the “nature of addiction, combined with the consistently applied unconstitutional practices of Clark County Circuit Court 2,” he wrote in the latest complaint. There are currently more than 70 participants remaining in the program.

Posted by Marcia Oddi on April 17, 2014 09:34 AM
Posted to Indiana Courts

Wednesday, April 16, 2014

Ind. Decisions - Supreme Court posts a second opinion today

In Ronnie Jamel Rice v. State of Indiana, an 11-page, 5-0 opinion, Justice Massa writes:

Ronnie Jamel Rice appeals the trial court’s sentencing order, arguing it improperly relies on non-statutory aggravators as a basis for imposing a sentence of life imprisonment without parole. Because we believe the order as revised comports with our precedent and does not represent an abuse of the trial court’s discretion, we affirm. * * *

We find the trial court’s revised order meets the test outlined in Harrison and the trial court did not abuse its discretion. Further, Rice fails to persuade us that his sentence is inappropriate. For these reasons, we affirm the trial court.

Posted by Marcia Oddi on April 16, 2014 02:37 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one, re parole conditions

In David Bleeke v. Bruce Lemmon, in his capacity as Commissioner of the Indiana Department of Correction; Thor R. Miller, as Chairman of the Indiana Parole Board; et al., a 51-page, 5-0 opinion, Justice David writes:

In this case, a parolee convicted of a sex crime against an adult female challenges a number of his parole conditions, including several that prohibit him from having contact with children—even his own. He also challenges the constitutionality of a state treatment program for sex offenders that he must participate in as part of his parole, claiming that under the program he is required to provide self-incriminating statements about his underlying offense and sexual history without immunity and under the threat of being found in violation of his parole.

We conclude that some of his parole conditions are impermissible on several grounds, but find no fault with the remainder. We likewise find no constitutional flaw in the state treatment program. * * *

We therefore reverse the trial court’s grant of summary judgment in favor of the Parole Board with respect to Bleeke’s additional parole conditions 4, 5, 17, 19, and 20, and remand with instructions that it enter an order enjoining the Parole Board from enforcing those conditions. We summarily affirm the Court of Appeals opinion below [see the ILB summary of the Jan. 23, 2013 COA opinion] with respect to its analysis of Bleeke’s additional parole conditions 8, 15, 17, and 19, and his challenges to Ind. Code §§ 11-13-3-4(g) and 35-42-4-11, and remand with instructions that the trial court also enter an order enjoining the Parole Board from enforcing conditions 8 and 15 unless it clarifies them first, and enjoining the Parole Board from enforcing those statutory parole conditions derived from the unconstitutionally overbroad labeling of Bleeke as an “offender against children.” But we affirm the trial court’s grant of summary judgment in favor of the Parole Board with respect to Bleeke’s remaining additional conditions.

And we likewise affirm the trial court’s grant of summary judgment to the Parole Board with respect to Bleeke’s claims about the constitutionality of the SOMM program. The program is a valuable tool aimed at the legitimate purpose of rehabilitating sex offenders before they are fully released from State control, and its requirements do not violate the Fifth Amendment’s privilege against self-incrimination.

Posted by Marcia Oddi on April 16, 2014 12:13 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 9 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of M.P., Minor Child, and her Father M.J.P., M.J.P. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (8):

Daniel Dodd v. State of Indiana (NFP)

Katrina Baker v. State of Indiana (NFP)

Jeffrey L. Daniel v. State of Indiana (NFP)

Ontorio Frye v. State of Indiana (NFP)

Philip H. Chamberlain v. State of Indiana (NFP)

Jimmy Isbell v. State of Indiana (NFP)

Bryan J. Fields v. State of Indiana (NFP)

Chas J. Harper v. State of Indiana (NFP)

Posted by Marcia Oddi on April 16, 2014 11:26 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Motion to dismiss felony-murder charge denied"

Some quotes from a long story by Madeline Buckley of the South Bend Tribune:

SOUTH BEND -- An attorney for a man who was allegedly involved in a home invasion during which the homeowner shot one of the intruders asked a judge to dismiss the felony murder charge, arguing that it should not apply in cases where an accomplice is the victim.

St. Joseph Superior Court Judge Jane Woodward Miller on Tuesday denied the request, but the motion offers a glimpse into potential future appeals arguments that could challenge current case law on the controversial Indiana statute. * * *

In a motion filed in March, defense attorney Charles Lahey argued that the language of the state’s felony murder statute is at odds with a 1999 Supreme Court decision that determined the charge can be applied when an accomplice is killed in the act of committing a felony.

Palmer no question is incorrectly decided,” Lahey said at a hearing on Tuesday, referring to the Supreme Court case, Palmer v. State.

In Palmer, a panel of judges [sic.] upheld Jesse Palmer’s conviction of felony murder after a correctional officer shot and killed Palmer’s accomplice to a kidnapping.

Lahey referenced a similar case in Elkhart in which a jury convicted three teenagers of felony murder after a homeowner shot and killed an accomplice in a burglary gone awry.

ILB: Palmer v. State is a 3-2, 1999 Indiana Supreme Court opinion, written by Justice Dickson, who is now Chief Justice. He was joined by Justices Boehm and Selby, who are no longer on the Court. The two dissenters, Justice Sullivan and CJ Shepard, also are no longer on the Court. From the dissent:
I do not believe that our statutes authorize the imposition of liability for murder where the defendant's co-perpetrator is the victim.

Our felony murder statute provides: "A person who ... kills another human being while committing or attempting to commit... kidnaping ... commits murder, a felony." Ind.Code § 35-42-1-1. Palmer here did not kill another human being; his co-perpetrator was killed by a law enforcement official. Under the terms of the felony murder statute, Palmer is not guilty of felony murder.

From the majority:
The felony murder language of our murder statute provides: "A person who ... [k]ills another human being while committing or attempting to commit arson, burglary, child molesting, consumer product tampering, criminal deviate conduct, kidnapping, rape, robbery, or carjacking; ... commits murder, a felony."[6]

The statutory language "kills another human being while committing" does not restrict the felony murder provision only to instances in which the felon is the killer, but may also apply equally when, in committing any of the designated felonies, the felon contributes to the death of any person.

The South Bend Tribune story continues:

The case of the “Elkhart Four,” as it is popularly known, sparked resistance to what some said was an unfair application of the felony murder statute.

The three teenagers who went to trial have appealed the conviction and are awaiting a decision from the court, which could lead to a challenge of the Palmer decision down the road.

Lahey acknowledged the uphill battle involved in persuading a local trial judge to rule against the Palmer Supreme Court decision, but he said Indiana is in the minority in its interpretation of a felony murder statute.

“The defendant respectfully urges this court to refuse to follow that holding based on the plain language of the statute,” Lahey’s motion reads.

St. Joseph County Chief Deputy Prosecutor Ken Cotter asked the judge to deny the motion to dismiss the charge, noting that the Palmer decision has been upheld many times.

“The defendant should have known and knew the act could cause someone’s death,” Cotter said.

[Judge] Woodward Miller did deny the motion, saying she does not find the application of the felony murder statute to be unconstitutional [sic.].

“I understand our state is in the minority but I don't find it an unreasonable minority to be in,” she said.

Here is an Oct. 9, 2013 ILB post on the "Elkhart Four" case. Here is the docket of the appeal of two of the Elkhart defendants to the Court of Appeals. Several amicus briefs have been filed in support of the appellants. Here is one of the amicus briefs, this one submitted by the Indiana Public Defender Council. Notice footnote 1 on p. 3, which begins:
Although this Court cannot overrule an Indiana Supreme Court case, it can — and appropriately has — expressed its respectful disagreement and urged the Indiana Supreme Court to reconsider precedent.

Posted by Marcia Oddi on April 16, 2014 10:04 AM
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Hyperlinking is now available in the U. S. District Court for the Southern District of Indiana"

From a notice dated April 11, 2014:

Hyperlinking is now available in the U. S. District Court for the Southern District of Indiana. Attorneys may file documents with active hyperlinks within e-filed documents. Hyperlinks will allow immediate access by the reader to the referenced materials, i.e., CM/ECF filings, case and statute citations, attachments, and exhibits. (Attorneys should check each judge’s practices and procedures to see if hyperlinks are a requirement.) When utilized by attorneys, hyperlinks in briefs and other court filings will provide quick, easy, and pinpoint access to particular sections of a case, specific page numbers, or to specific filings in the court's record. Hyperlinking will allow Judges to quickly and easily review case-supporting materials.

The court will also be issuing court documents with active hyperlinks, and the court-issued documents will continue to be available via the Notice of Electronic Filing ("NEF") email system. NOTE: Even though attorneys can utilize the one “free look” to the e-filed documents associated with the NEF – accessing other CM/ECF hyperlinked documents contained within the main document will be subject to normal PACER fees, and any hyperlinks to Westlaw or LexisNexis citations will require attorneys to login to those services.

For detailed instructions on hyperlinking, please refer to the Attorney Guide to Hyperlinking in the Federal Courts, which can be located on the court’s website.

ILB: Reviewing The Attorney Guide to Hyperlinking, linked above, is essential.

Note also the sentence I highlighted above: "Attorneys should check each judge’s practices and procedures to see if hyperlinks are a requirement." The judges vary as to whether they make their practices and procedures readily available online. Going down the list in the left margin here, I've added a link to the practices and procedures documents of those judges providing such information:

Magistrate judges: None of the copies of practices and procedures linked above make any reference to hyperlinks as of this writing.

Posted by Marcia Oddi on April 16, 2014 09:36 AM
Posted to Indiana Courts

Environment - "Federal Appeals Court upholds Obama EPA rule on toxic air emissions"

James Bruggers reported yesterday in the Louisville Courier Journal in a story that began:

There is big news in the air quality world today.

A major piece of the Obama administration's strategy to clean up power plant pollution has survived a critical test by securing a favorable ruling before a federal Appeals Court.

Later in the story:
A number of states including Kentucky joined industry in trying to get the rule overturned. A spokeswoman for Kentucky Attorney General Jack Conway, who has been trying to bolster his coal cred in advance of a potential run for governor, said she could not comment while the decision was still under review. Indiana also joined the opposition to the mercury and air toxics rule.
Neela Banerjee of the LA Times had a story headed "Appeals court upholds EPA limits on air toxicity: The U.S. Court of Appeals for the D.C. Circuit rejects challenges from both sides of the issue, finding that EPA limits on emissions from coal-fired power plants are valid," that began:
WASHINGTON — A federal appeals court Tuesday upheld the Environmental Protection Agency's first-ever limits on air toxics, including emissions of mercury, arsenic and acid gases, preserving a far-reaching rule the White House had touted as central to President Obama's environmental agenda.

In a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit found that the rule regulating power plants "was substantively and procedurally valid," turning aside challenges brought by Republican-led states that had argued it was onerous and environmental groups that had contended it did not go far enough.

This story from Reuters includes the name of the opinion: White Stallion Energy Center v. EPA, U.S. Court of Appeals for the District of Columbia Circuit, 12-1100.

Posted by Marcia Oddi on April 16, 2014 09:06 AM
Posted to Environment

Ind. Decisions - Out-of-state attorney reactions to two recent Indiana Supreme Court opinions

Scott H. Greenfield, a NY attorney, writes in Simple Justice, A Criminal Defense Blog about our Supreme Court's March 25th opinion in Joanna S. Robinson v. State of Indiana, a case where the testimony of the arresting officer and the record from his video camera were somewhat at odds. A Public Defender Blog, from "I am Gideon. I’m a public defender in the fictional state of Connecticut," has a less measured response.

Carolyn Elefant, the DC attorney and well-known writer of myShingle.com, had a post April 14th titled "An Indiana Ethics Opinion That May Kill Legal Start Ups." The opinion at issue is In the Matter of Anonymous, a Supreme Court disciplinary opinion from April 11th. A few quotes from her post:

Via the Legal Profession Blog, comes a recent Indiana ethics decision reprimanding a lawyer who’d practiced 41 years without incident for participating Law Tigers , a site that helps members of the public find a motorcycle attorney. Trouble is, in pursuit of a single Tiger that may purportedly cause harm to the public, the Indiana Supreme Court now has the entire fledgling industry of legal matchmaking platforms by the tail. * * *

But what’s worst about the Indiana Supreme Court’s ruling is that no site is safe – including the recent crop of VC-backed client matchmaking sites. Take UpCounsel , a site that small businesses can use to find lawyers. * * *

The way that I read the Indiana Supreme Court opinion, I don’t see any principled way to distinguish LawTiger from the new crop of matchmaking platforms. Which means that the Indiana court decision will have a chilling effect on lawyers in Indiana – and potentially other jurisdictions. And while the Indiana Court may view that as a triumph, in the long run a far worse fate awaits.

Posted by Marcia Oddi on April 16, 2014 08:23 AM
Posted to Ind. Sup.Ct. Decisions

Tuesday, April 15, 2014

Ind. Gov't. - More on follow-up on: "State to lose $63M in tobacco payments next year"

In this post April 14th the ILB mentioned it wasn't able to find the case docket (CSS) for this lawsuit on mycase. A reader has just sent me this note:

The copy of the Dec. 2013 "State Of Indiana’s Motion To Vacate The September 11, 2013, Final Arbitration Award Entered By The Arbitration Panel In The 2003 NPM Adjustment Dispute Proceedings" has a typo in the Cause No.: "CAUSE NO. 49D07-99702-CT-0236." The CCS is online at http://mycase.in.gov/default.aspx under Case Number 49D07-9702-CT-000236 and the "Style" [cause name] is "State Of Indiana Exrel, et. al. vs. Philip Morris, Incorporated, Et Al,, et. al."
This solved the problem, use the case # in bold above if you want to check the Chronological Case Summary.

Posted by Marcia Oddi on April 15, 2014 07:22 PM
Posted to Indiana Government

Courts - "Courtroom Sketch Artist: Art Lien" [Updated]

New Hampshire Public Radio has an over 10-minute interview with Art Lien, courtroom sketch artist. Here is Lien's worth-visiting website. See also two earlier ILB posts on Mr. Lien.

[Updated at 7 PM]
As it turns out, the NYTimes today has a story by Alexandra Stevenson on a new book titled “The Illustrated Courtroom: 50 Years of Court Art,” which:

brings together the work of five courtroom illustrators who chronicled famous trials of the last half-century, including those of David Berkowitz, the so-called Son of Sam; Charles Manson; the Watergate burglars; and O. J. Simpson. The artists — Howard Brodie, Aggie Kenny, Bill Robles, Richard Tomlinson and Ms. Williams — have brought financial chieftains, psychopaths and petty criminals to life for the world outside the courtroom.
The Times story includes a slide show of some of the illustrations. And here is the blog of the book authors, with many illustrations.

Posted by Marcia Oddi on April 15, 2014 01:52 PM
Posted to Courts in general

Law - "Who Is Responsible for the Student Loans After Divorce?"

Charles Wells' "Wealth Mnagement" column in the $$ WSJ April 13th is sub-headed "Misconceptions abound, but how educational debt is divided may depend on where you live." A few quotes:

Legal experts say one of the most common misconceptions about dividing debt in a divorce is the belief that educational debt incurred before a marriage always becomes shared, marital debt once a couple gets hitched.

New York divorce attorney Cari Rincker says her mother once quipped that she couldn't wait for Ms. Rincker to "get married because half of [her] student debt will be his."

Ms. Rincker, who is single, had to correct her mother: Generally, educational debt incurred before a marriage is considered separate property and barring some predetermined contractual agreement, it stays that way after a divorce. "My law-school-loan debt is forever mine," Ms. Rincker says. "No spouse will ever be liable" for it. * * *

Debt division can get a little trickier when the student loans are taken out during the marriage. The person responsible for paying the loans isn't necessarily the person whose name is on them. Indeed, how educational debt is divided may depend on where you live and who benefited from the borrowed money.

Posted by Marcia Oddi on April 15, 2014 01:43 PM
Posted to General Law Related

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

In U.S. v. Henderson (ND Ind., Miller), a 10-page opinion, Judge Bauer writes:

Marcus Henderson (“Henderson”) was indicted for being a drug user in possession of firearms in violation of 18 U.S.C. § 922(g)(3). Prior to trial, the district court judge denied Henderson’s motion to suppress evidence seized during a protective sweep of his home. A jury found Henderson guilty, and the district court judge sentenced him to thirty-nine months’ imprisonment, followed by three years’ supervised release, and the payment of a $100 special assessment. On appeal, Henderson contends that the firearms were discovered pursuant to an unconstitutional search because the protective sweep of his home was unreasonable. For the reasons that follow, we affirm. * * *

The sole issue raised by Henderson on appeal is his claim that the protective sweep was unreasonable because there were no articulable facts that Henderson’s house harbored an individual who posed a threat to those on the scene after Henderson exited.

Posted by Marcia Oddi on April 15, 2014 01:26 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In Lucas H. Jackson v. State of Indiana ,, a 6-page opinion, Judge Pyle writes:

Lucas H. Jackson (“Jackson”) appeals the trial court’s revocation of his probation. We reverse.

Issue. Whether the trial court abused its discretion by revoking Jackson’s probation based upon Jackson being charged with an additional offense. * * *

Here, the only probation violation alleged by the State was that criminal charges had been filed against Jackson in Kentucky. The only evidence submitted at the evidentiary hearing was a copy of the indictment against Jackson and the probation officer’s assertion that the indictment constituted a violation of Jackson’s probation that he not commit another crime during probation. The trial court did not determine, by a preponderance of the evidence, that Jackson had actually committed a new criminal offense. Instead, the trial court determined that Jackson was in violation of probation by merely “being charged with a new offense[.]”

Based on the record before us, we conclude that the trial court abused its discretion by revoking Jackson’s probation and we reverse the trial court’s revocation of Jackson’s probation. See, e.g., Martin, 813 N.E.2d at 391 (holding that the fact criminal charges were filed against a probationer did not warrant revocation of probation); Heaton, 984 N.E.2d at 617 (holding that to revoke a defendant’s probation based on the allegation that he committed a new criminal offense, the trial court must find that the evidence established by a preponderance of the evidence that the defendant committed a new criminal offense).

NFP civil opinions today (2):

Antrone Crockett v. Clair Barnes and Mark Sevier (NFP)

Patricia Leslie v. Liberty Dialysis, Inc., Liberty Dialysis-Lebanon, LLC., Witham Memorial Hospital, and NLMP, Inc. (NFP)

NFP criminal opinions today (7):

Tammy Carter v. State of Indiana (NFP)

Edrece Bryant v. State of Indiana (NFP)

Mark Conner v. State of Indiana (NFP)

Lloyd W. Mezick v. State of Indiana (NFP)

Regina Choice v. State of Indiana (NFP)

Kenton T. Winder v. State of Indiana (NFP)

Jason R. Barton v. State of Indiana (NFP)

Posted by Marcia Oddi on April 15, 2014 10:26 AM
Posted to Ind. App.Ct. Decisions

Ind. Law - "Marion County's gun rule stands ... for now"

That is the headline to a fascinating story this morning, reported by John Tuohy in the Indianapolis Star. Some quotes:

The City-County Council voted Monday to let residents in outlying Marion County continue to discharge weapons recreationally, fearing that banning it would violate state law.

Corporation Counsel Andy Seiwert said passing a ban could open the city up to lawsuits because a 2011 gun bill passed by the Indiana General Assembly prohibits cities from passing their own, tougher ordinances.

"The risk of enacting a ban has a great downside," Seiwert said before the meeting.

But a ban has been on the books in ­Indianapolis since at least 1975. It prohibits target practice, hunting and random shooting of guns. Violators are subject to a fine.
City lawyers discovered that the ordinance was actually "void," or unenforceable, because of the state law. Councilwoman Angela Mansfield pressed ahead anyway with an ordinance that would expand the ban to the outer county. She said those once-rural areas are now developed and populated and it was dangerous to allow guns to be discharged there.

Councilman Will Gooden said state law allows citizens to sue municipalities that pass their own gun laws.

"My concern is we are exposing ourselves to extreme consequences, ­extreme liability and extreme costs," Gooden said.

Councilman Ben Hunter called the state law "an affront to home rule" but agreed it was too chancy to challenge it.

Proponents of expanding the ordinance said residents near the White River and Keystone Avenue have been terrified by duck hunters in recent years. They argued it is only a matter of time until someone is struck by gunfire.

Councilwoman Christine Scales, an ordinance proponent, said after the meeting the council had put money ahead of safety.

"We are talking about people's lives, and we are concerned about cost," she said.

It was not immediately clear whether the city needs to repeal its ban to comply with state law.

ILB: Indianapolis has not always suffered from this fear of lawsuit - recall, for example, the various adult bookstore ordinances.

This same question has been considered in Hammond, and perhaps Evansville. The Court of Appeals, in Dykstra v. City of Hammond, considered a case where the city was sued to remove gun ordinances from its books. The ILB has a number of posts on the case, including this one from March 17, 2013, which quoted from a NWI Times story:

HAMMOND | The Indiana Court of Appeals upheld a ruling Friday that two area residents are not adversely impacted by city gun restrictions now voided by state law.

Samuel Dykstra, who lives in Highland and attends college in Hammond, and Michelle Bahus, of Hammond, had sued the city, alleging their rights were violated because gun regulations are still present in city code. * * *

“We feel like the city of Hammond, and Mayor (Thomas) McDermott specifically, intentionally want to leave the ordinances on the books, so they influence people's behavior,” said Guy Relford, the residents' attorney.

The appeals court found that, regardless of whether the ordinances were still in code, the restrictions were voided by a 2011 state law that essentially bars local governments from regulating firearms except in courtrooms.

The ordinances had restricted guns from city buildings or at any city board or commission meeting.

The appeals court stated the city had not adopted or enforced an ordinance in violation of the state law since it took effect in July 2011. The law was meant to curb future gun restrictions or future enforcement of ordinances in place prior to the state law taking effect, the ruling states.

See also this ILB post from March 19, 2013, which comments on the fact that the Hammond opinion had been designated as NFP (it was later changed to FP, and subsequently the Supreme Court denied transfer), and on the fact that the City of Evansville was facing a similar lawsuit in trial court, but the judge had postponed his decision until the Court of Appeals ruled in the Hammond case. Unfortunately, the ILB does not know the outcome of the Evansville case, because the Evansville Courier & Press at about that time went behind a total paywall.

Posted by Marcia Oddi on April 15, 2014 08:35 AM
Posted to Indiana Government | Indiana Law

Monday, April 14, 2014

Ind. Gov't. - More on "Top Indiana lawmaker, family had millions on line in nursing home fight"

Updating this April 10th ILB entry, the Fort Wayne News-Sentinel today contains another AP story by Tom LoBianco on the ethics questions involving Rep. Eric Turner. Rep. Turner is Speaker Pro Tempore of the Indiana House. Some quotes from today's story:

INDIANAPOLIS — Members of the House Ethics Committee who will take up Rep. Eric Turner's case face daunting tasks as they try to answer two questions:
  • Did their powerful colleague violate any ethics rules in privately lobbying against a measure that would have hurt his family's business?

  • And are their own ethics rules substantial enough?
At the center of the inquiry is the Turner family's lucrative nursing home construction business and legislation this past session that would have banned construction of new facilities. * * *

House rules bar formal and public actions that directly benefit a lawmaker. Turner recused himself from votes publicly, but Republican lawmakers say he spoke up in private meetings of the House Republican caucus in the last two days of the legislative session and was successful in killing the ban.

The ethics committee appeared ready to meet last week, but the meeting was pushed off indefinitely. When its members do return, they'll tackle some pointed questions about Turner's actions, ethicists say. * * *

Turner has yet to speak publicly about his arguments inside the Republican Caucus this year. But he was asked about the issue last year, when he worked behind the scenes to clear a path for a multimillion-dollar contract for Utah-based Insure Rite, which was being represented at the Statehouse by his daughter, Jessaca Turner Stults. Asked at the time if he was representing his personal interest or that of his constituents, he scoffed and said he always looks out for the people who elected him first. * * *

Republican House Speaker Brian Bosma first promised an ethics review last spring, following news reports about lawmakers with conflicts of interest. But it was not until Turner's lobbying was reported this year -- and Democratic Party Chairman John Zody called for an investigation of his actions -- that Bosma sought the review.

The relative strength of the House's own ethics rules, and whether they contain too many loopholes, will be one of the chief issues the ethics panel takes on when it meets.

The ILB has located the brief Code of Ethics adopted by the Indiana House of Representatives. Perhaps relevant to the Turner question are paragraphs 5 and 6 of the Code, which appear to be in conflict:
No member of the House of Representatives shall sponsor or cast a vote on any legislative matter, except budget or general revenue bills, that might reasonably be expected to directly result in a substantial increase of his or her non-legislative income. * * *

Every member shall give freely of his or her particular expertise during a discussion or debate upon a given proposition; in doing so the member shall, insofar as it is possible, present the positions of all sides of the proposition.

Recall that the stories report: "Turner recused himself from votes publicly, but Republican lawmakers say he spoke up in private meetings of the House Republican caucus in the last two days of the legislative session and was successful in killing the ban." Notice that the Ethics Code does not seem to be clear even about whether a member who has recused himself from voting on a bill may speak about the bill during public floor debate, much less in private caucus.

Compare this to the judicial branch of government. As I understand it, when a justice recuses at the Supreme Court, he or she leaves the conference room when the case is internally discussed by the other justices. And the recused justice certainly does not participate in oral argument.

Posted by Marcia Oddi on April 14, 2014 03:42 PM
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Ball State Univeristy v. Jennifer Irons, In re the Marriage of: Jennifer Irons, Wife, and Scott Irons, Husband , a 12-page, 2-1 opinion, Judge Barnes writes:

Ball State University (“BSU”) appeals the trial court’s order to release the college transcript of Jennifer Irons’s child, Jordan. We dismiss. * * *

Although BSU did not have a right to appeal the trial court’s order compelling the delivery of the transcript under Appellate Rule 14(A)(3), it could have asked the trial court to certify the order for an interlocutory appeal pursuant to Appellate Rule 14(B). Because BSU failed to have the order properly certified, we must dismiss this appeal.

This appeal was not properly brought under Appellate Rule 14(A)(3). Consequently, we dismiss the appeal.

ROBB, J., concurs.
BROWN, J., concurs in part and dissents in part with separate opinion. [that begins] I concur with the majority’s denial of Jennifer’s request for appellate attorney’s fees but respectfully dissent from the majority’s conclusion that the order does not constitute an interlocutory appeal of right. As the majority notes, Ind. Appellate Rule 14(A)(3) provides an appeal as a matter of right when the appealed order “compel[s] the delivery or assignment of any securities, evidence of debt, documents or things in
action.” Here, the appealed order does exactly that – compels the delivery of a document – by requiring BSU to immediately release an official transcript while admittedly tuition debt remains due and owing.

NFP civil opinions today (4):

Paula Rorer (Hubbard) v. William Shane Rorer (NFP)

In re the Marriage of: Annette M. Huseman, f/k/a Annette M. Mantis v. Angelo N. Mantis (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: J.J. and A.J. (Minor Children) and S.J. (Father) v. Indiana Department of Child Services (NFP)

Jay Darland and Kathleen Darland v. Elizabeth Rupp (NFP)

NFP criminal opinions today (3):

Tyrone A. Thompson v. State of Indiana (NFP)

Jeremy J. Holden v. State of Indiana (NFP)

Donald William Myers, III v. State of Indiana (NFP)

Posted by Marcia Oddi on April 14, 2014 01:31 PM
Posted to Ind. App.Ct. Decisions

Courts - The process for filling the upcoming vacancy resulting from Judge Barker's decision to take senior status

Here is a news release:

Washington, D.C. – Senators Joe Donnelly and Dan Coats today announced the process for candidates interested in the upcoming vacancy on the U.S. District Court for the Southern District of Indiana. Judge Sarah Evans Barker recently announced her intention to take senior status effective June 30, 2014.

Donnelly said, “I thank Judge Sarah Evans Barker for her thirty years of service on the U.S. District Court for the Southern District of Indiana. We have been very lucky to have the benefit of her wisdom and judgment. A Mishawaka, Indiana native, she has dedicated most of her career to government service. In addition to her tenure on the District Court, Judge Barker served as a U.S. Attorney for the Southern District of Indiana, an Assistant U.S. Attorney, and on the staff of a U.S. Senator, U.S. Senate Committee, and a U.S. Representative. She has also spent time in private practice. I look forward to working with Senator Coats to review applications of qualified candidates to replace Judge Barker on the District Court.”

Coats said, “I thank Judge Barker for her many years of distinguished service on the federal bench and wish her the best during this transition to senior status. Hoosiers are fortunate that we will continue to benefit from her wisdom. Federal judges are appointed for life and play a crucial role in our judicial system. One of my Constitutionally defined duties as a Senator is to provide advice and consent to the President on federal judicial nominees, and I take this responsibility seriously.”

To apply, interested candidates should visit www.donnelly.senate.gov/judge and be prepared to submit an application highlighting their qualifications for the position and reason for seeking nomination to the U.S. District Court for the Southern District of Indiana. Applications are due no later than 5 PM EDT on Monday, May 12, 2014.

Posted by Marcia Oddi on April 14, 2014 12:03 PM
Posted to Courts in general

Courts - More on: Ohio federal judge to rule valid out-of-state SSMs must be recognized within Ohio

Updating this ILB post from April 4th, today Ohio U.S. District Judge Timothy S. Black issued the opinion he earlier promised.

Chris Gridner of BuzzFeed has the story and ruling here.

Posted by Marcia Oddi on April 14, 2014 11:53 AM
Posted to Courts in general

Ind. Decisions - Transfer list for week ending April 11, 2014

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Dec. 20, 2013 list.]

Here is the Clerk's transfer list for the week ending Friday, April 11, 2014. It is two pages (and 23 cases) long.

Five transfers were granted last week:

  • Wellpoint, et al v. National Union Fire, et al (NFP) - This was a June 19, 2013, 2-1 NFP opinion.

  • Barbara J. Pohl v. Michael G. Pohl - this was a Nov. 26, 2013 COA opinion re post-dissolution spousal maintenance.

  • Joseph K. Buelna v. State of Indiana (NFP) - this was a Jan. 30, 2014 NFP opinion appealing a conviction and sentence for manufacturing methamphetamine.

  • Jonathan D. Carpenter v. State of Indiana - this was a Feb. 20, 2014 COA opinion (4th case) where the COA wrote, in part: "Trimble and Davis dealt with whether the conditions of animals could constitute exigent circumstances justifying warrantless searches of areas outside of the homes. In the case before us, the investigation extended into the house only when one of the dogs, which was covered in blood, entered the home through an open door and would not come out."

  • In the Matter of the Guardianship of N.R., N.R. v. Eva Willis, et al. - In this case the docket reveals: "The court of appeals dismissed this appeal in an order dated July 26, 2013. The case is before this court on appellant's petition to transfer jurisdiction in accordance with Indiana appellate rules 56(b) and 57(b). The court grants appellant's transfer petition, vacates the court of appeals order dismissing the appeal, and remands the case to the court of appeals for consideration on the merits."
Also of interest on the transfer list for last week is that the Supreme Court has denied transfer to both appellant and appellee by a 3-1 vote in the case of IBM v. ASC Human Services. See this ILB post from earlier today for more information.

Posted by Marcia Oddi on April 14, 2014 09:41 AM
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court denies transfer in an IBM case

The Supreme Court has denied transfer to both appellant and appellee by a 3-1 vote in the case of IBM v. ASC Human Services. This leaves in place the Nov. 26, 2013, Court of Appeals opinion. Here is the COA summary of its opinion:

International Business Machines Corp. (“IBM”) and the State of Indiana (“the State”) filed lawsuits against one another related to the State’s Family and Social Services Administration (“FSSA”) modernization initiatives. The trial court ordered IBM to pay $709,398.95 in costs related to discovery and production of documents incurred by a non-party, ACS Human Services, LLC (“ACS”). Later, the trial court imposed sanctions totaling $425,178.85 against ACS in favor of IBM.

IBM and ACS each appeal. IBM seeks vacation of the costs assessed against it in favor of ACS. ACS cross-appeals, seeking an increase in the costs assessed against IBM and vacation of the sanctions assessed against it in favor of IBM.

We affirm.

Note that this is NOT the Feb. 13, 2014 Court of Appeals opinion (State of Indiana, acting on behalf of the Indiana Family & Social Services Administration v. International Business Machines Corporation) affirming the trial court’s award of $40 million in assignment fees and $9,510,795 in Equipment fees to IBM.

Posted by Marcia Oddi on April 14, 2014 09:29 AM
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - A follow-up on: "State to lose $63M in tobacco payments next year" [Updated]

The ILB had several entries on this topic in 2013.

  • This entry from Oct. 17, 2013 reported that a three-judge panel had reduced Indiana’s payment from $131 million to $68 million. Quoting ILI: "arbitrators determined that [for the year 2003] Indiana, Kentucky, Maryland, Missouri, New Mexico, and Pennsylvania failed to 'diligently enforce' the relevant 1998 Tobacco Master Settlement Agreement (MSA) provision, resulting in reductions in payments to which they would otherwise have been entitled."

  • This lengthy Oct. 21, 2013 ILB post goes into all the detail, some of it quite eye-opening, particularly as to attorney fees paid to a former AG.

  • This Dec. 4, 2013 ILB post reported that Indiana was appealing the ruling, via a motion by Attorney General Zoeller, "filed in Marion County Superior Court, which has jurisdiction over the settlement in Indiana."
The ILB has now obtained and is posting a copy of the Dec. 2013 "State Of Indiana’s Motion To Vacate The September 11, 2013, Final Arbitration Award Entered By The Arbitration Panel In The 2003 NPM Adjustment Dispute Proceedings."

The ILB has been unable to determine the status of this case, filed in Marion County Superior Court. (Perhaps a reader can help?)

And why is all this suddenly news again?

For one, the issue was raised during the recently ended legislative session, e.g. this NUVO story headed "Lawmakers confused by cut in state's tobacco funds."

For another
, although there has been no sign of a ruling in the Indiana trial court challenge, a decision was reached last week in a similar challenge in Pennsylvania, another of the five states whose payments have been reduced because of lack of diligent enforcement of the MSA in 2003.

Here are some quotes from an April 10th story by Jeff Frantz at PennLive:

Last fall, an arbitration panel ruled that in 2003 the Commonwealth hadn't strictly enforced all the provisions in the landmark Tobacco Master Settlement Agreement. As a result, the arbiters ruled, Pennsylvania would receive about $150 million from the settlement this year, instead of the $330 million check the state typically receives every April.

The state appealed the ruling.

Knowing less money could be coming in this year, the state reduced funding for non-mandated programs like the CURE grants that settlement money helps to fund.

Thursday, Philadelphia Court of Common Pleas Judge Patricia McInerney modified the arbiters' ruling. While Pennsylvania won't receive its full sum, McInerney's order means it will only lose out on about $60 million this year.

Here, from The Pennsylvania Record, is an April 13th story by Jon Campisi. Some quotes:
The commonwealth will recoup $120 million from the Tobacco Master Settlement Agreement that was withheld because of an arbitration panel’s finding that Pennsylvania failed to “diligently enforce” tobacco tax collection laws.

The news stems from a decision by Philadelphia Common Pleas Court Judge Patricia McInerney, who determined that the arbitration panel ignored the plain language of the 1998 master settlement agreement, which did not allow for such a financial shift. * * *

The commonwealth argued that the panel’s final award disregarded the law and was “wholly irrational.”

Kane’s office contended that the panel announced the definition and the factors it would rely upon for the first time in the final award, or after the evidence was presented.

The panel also applied its own “manufactured definition irrationally,” the commonwealth had stated in its November 2013 motion.

The motion noted that the arbitration panel anchored its final award to the number of lawsuits Pennsylvania brought to enforce the settlement agreement and its collection rate of 44 percent.

However, the commonwealth’s litigation policy focused on those entities with significant noncompliant sales, the motion had stated.

The motion also noted that in 2003, Pennsylvania prosecuted a total of six civil actions against noncompliant companies, including five that represented 80 percent of applicable tobacco sales in Pennsylvania.

Three other states, Colorado, North Dakota and Illinois, however, failed to bring any civil litigation against noncompliant companies, yet those states were found diligent by the panel, Pennsylvania argued.

Here is the 57-page Pennsylvania trial ruling. It likely will be appealed.

[Updated at 12:52 PM] In answer to the ILB question re the status of the action in Marion County Superior Court, Bryan Corbin, Public Information Officer, Office of the Indiana Attorney General, responds:

The State’s appeal still is pending before the Marion County Superior Court, the motion to vacate is currently in briefing and a hearing is scheduled for mid-July.

Posted by Marcia Oddi on April 14, 2014 08:50 AM
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/14/14):

  • No oral arguments currently scheduled.
Next week's oral arguments before the Supreme Court (week of 4/21/14):

Thursday, April 24

  • 9:00 AM - Curtis Sample v. State of Indiana (45S03-1401-CR-11) Sample was convicted of murder, see Sample v. State, 932 N.E.2d 1230 (Ind. 2010), and on remand, was found to be an habitual offender. During the habitual offender phase, the State called witnesses who testified that the victim in the predicate offenses had mental health issues. Citing Hollowell v. State, 753 N.E.2d 612 (Ind. 2001), the Court of Appeals affirmed in Sample v. State, No. 45A03-1302-CR-52 (Ind. Ct. App. Sept. 19, 2013) (NFP mem. dec.), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This is a 9/19/13 NFP COA opinion where the issue was "Did the trial court commit reversible error in permitting prosecution witnesses to testify that the victim of two predicate offenses was mentally infirm?" The opinion ends with this interesting statement:

    Sample urges us to adopt the contrary view expressed by Justice (now Chief Justice) Dickson and Justice Rucker in Hollowell (2001). It is not within our prerogative to do so, as that view was expressed in a dissenting opinion, and did not carry the day. Pursuant to Hollowell, the trial court did not err in permitting Ryan and Papadakis to testify about the memorable aspect of the case in which each was, respectively, involved.

  • 9:45 AM - Robert Corbin v. State of Indiana (75S03-1401-CR-13) Corbin, a teacher, sent messages to a student asking her to take care of his sexual arousal, to sneak out of the house so he could pick her up, etc. Corbin was charged with attempted child seduction, IC 35-42-4-7. The Starke Circuit Court denied Corbin’s motion to dismiss. In this interlocutory appeal, the Court of Appeals reversed, deciding that Corbin’s internet-based solicitations did not constitute a substantial step toward the crime of child seduction. Corbin v. State, 999 N.E.2d 70 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This is an 10/11/13 opinion, in a case involving Facebook solicitations, where the COA concluded: "Corbin did not take the substantial step required to amount to attempted child seduction."

  • 10:30 AM - Seth A. Miller v. State of Indiana (63A01-1210-CR-475) Following a jury trial in Pike Circuit Court, Miller was convicted of Corrupt Business Influence, IC 35-45-6-2, and other offenses. The Court of Appeals reversed this conviction on grounds there was insufficient evidence to establish the element of an “enterprise” within the meaning of the statute. Miller v. State, 992 N.E.2d 791 (Ind. Ct. App. 2013), trans. pending. The State has petitioned the Supreme Court to accept jurisdiction over the appeal.

    ILB: This is a July 31, 2013 COA opinion in a case including a conviction for Corrupt Business Influence:

    The evidence in this case simply fails to establish the necessary element of an enterprise within the meaning of the statute. Accordingly, we need not reach the additional issue of whether their episode of conduct qualifies as a pattern of racketeering activity. The conviction for corrupt business influence is reversed and the sentence of eight years thereon is vacated. In all other respects the judgment is affirmed.

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/14/14):

Tuesday, April 15

  • 1:00 PM - Andrew J. Rogers v. Sigma Chi International Fraternity, et al (84A04-1305-CT-224) Andrew Rogers was physically assaulted during a party at a house rented by some members of Sigma Chi’s Terre Haute chapter. He sued the international fraternity, the local chapter, and certain individuals for his injuries. The trial court granted summary judgment for the defendants. Rogers argues on appeal the defendants were in possession of the house for premises liability purposes and they had a duty to protect Rogers from a foreseeable criminal attack by a third party while he was there. The Scheduled Panel Members are: Judges May, Brown, and Senior Judge Barteau. [Where: University of Southern Indiana, Carter Hall, Evansville, Indiana]

  • 3:00 PM - Tuggle v. State (49A05-1308-CR-413) Tuggle arrived at an Indianapolis hospital emergency room, claiming to be the victim of a shooting and an armed robbery. Although the police seized Tuggle’s clothing from the hospital and obtained a search warrant prior to performing any DNA testing, Tuggle contends that the DNA test results confirming that Tuggle was a suspect in another shooting should not have been admitted into evidence. Tuggle argues that he never relinquished any privacy rights in his property and the clothing showed no immediate apparent incriminating characteristics. Thus, Tuggle claims that the initial seizure of his clothing violated his rights to be free from unreasonable search and seizure under the Fourth Amendment to the United States Constitution and Article I Section 11 of the Indiana Constitution. Therefore, Tuggle contends that the results of the DNA testing on the clothing were improperly admitted into evidence. The State counters that the clothing was properly seized and secured under both the plain view doctrine and the presence of exigent circumstances. The State argues that a search warrant allowing the DNA testing was properly obtained, and there was no violation of either the Fourth Amendment or the Indiana Constitution. Hence, the State asserts that the results of the DNA testing pointing to Tuggle as a suspect of the murder were properly admitted into evidence. Tuggle was ultimately convicted of murder and sentenced to fifty years of incarceration. This appeal ensues. The Scheduled Panel Members are: Judges Baker, Barnes, and Crone. [Where: Supreme Court Courtroom (WEBCAST)]

Wednesday, April 16

  • 1:30 PM - MSD of Martinsville v. Rebecca Jackson et al (55A01-1304-CT-182) After Martinsville West Middle School students Chance Jackson and Brandon Kent were injured during a school shooting by former student Michael Phelps, Jackson and Kent filed a lawsuit against the Metropolitan School District of Martinsville alleging that the School District breached its duty to keep Jackson and Kent safe. The School District filed a motion for summary judgment, which the trial court denied. The School District now appeals the trial court's order denying its motion for summary judgment, arguing that it is immune from liability under the Indiana Tort Claims Act, that the shooting was not foreseeable, and that the School District did not breach its duty to Jackson and Kent, and that Jackson was contributorily negligent. The Scheduled Panel Members are: Judges Robb, Mathias, and Bradford. [Where: Taylor University, 236 W. Reade Ave., Upland, IN]

Next week's oral arguments before the Court of Appeals (week of 4/21/14):

Thursday, April 24

  • 10:30 AM - Betina Pierson v. Service America Corp., et al (49A02-1307-CT-561) Trenton Gaff was intoxicated when his vehicle struck and killed twelve-year-old Tierra Rae Pierson and injured twelve-year-old January Canada. Earlier in the day, Gaff had attended a Colts game at Lucas Oil Stadium and had consumed alcoholic beverages at a pre-game tailgate party, during the game, and at a post-game tailgate party. Separate lawsuits were filed on behalf of Pierson's estate and Canada, alleging that Centerplate, the vendor of alcoholic beverages at Lucas Oil Stadium, had violated Indiana's Dram Shop Act by providing alcoholic beverages to a visibly intoxicated person and had committed common law negligence by failure to adequately train servers. The trial court granted summary judgment to Centerplate, concluding that there was no evidence that a Centerplate designee served alcohol to Graff while he was visibly intoxicated. Pierson claims that genuine issues of material fact preclude summary judgment and that the trial court did not view the evidence in the light most favorable to the non-movant, as required by the Indiana summary judgment standard. The Scheduled Panel Members are: Judges Najam, Bailey, and May. [Where: New Castle High School, 801 Parkview Drive, New Castle, IN]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

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 April 14, 2014 08:40 AM
Posted to Upcoming Oral Arguments

Friday, April 11, 2014

Ind. Decisions - Supreme Court issues private reprimand in attorney advertising case

In In the Matter of: Anonymous, a 7-page, 5-0 opinion, the Court writes:

We find that Respondent engaged in attorney misconduct by making false or misleading communications regarding legal services and by failing to include an office address in a public communication. For this misconduct, we conclude that Respondent should receive a private reprimand.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. Respondent's admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4. * * *

[This case concerns respondent's involvement with the American Association of Motorcycle Injury Lawyers, Inc. ("AAMIL") and their website]

The Commission charged Respondent with violating these Professional Conduct Rules1 prohibiting the following conduct:
7.1: Making false or misleading communications regarding services, e.g., statistical data, information based on past performance, testimonials.
7.2(c): Failing to include an office address in a public communication.
7.3(d): Accepting referrals from an unqualified referral service.
7.3(e): Improperly giving something of value for a recommendation.
7.5(a)(4): Use of an improper trade name. * * *

Under the totality of the circumstances of this case, the Court agrees with the hearing officer's conclusions that the average viewer would not differentiate between Respondent and the statements about Law Tigers on the AAMIL website and that Respondent is therefore responsible for objectionable content on the website. The Court concludes that Respondent violated current Rule 7.1 and prior Rule 7.2(d) through his association with the AAMIL website. * * *

Remaining charges. The hearing officer found that the Commission had failed to adequately establish its remaining charges. This Court will defer to the hearing officer's findings on these issues. * * *

The hearing officer recommends that Respondent be given no discipline harsher than a private reprimand. The Commission concedes that a private reprimand would be within the range of appropriate discipline in this case. Accordingly, the Court will impose a private reprimand for Respondent's misconduct.

Posted by Marcia Oddi on April 11, 2014 03:51 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Analysis of the Indiana Supreme Court’s First Quarter Opinions (Criminal Cases)

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

Has the unanimity that marked the first year of the newly comprised Indiana Supreme Court continued? Is a year an unusually long time to wait for an opinion from the Indiana Supreme Court? This post tackles both questions and more through an analysis of opinions in criminal cases decided in the first quarter of 2014.*

The parties, lawyers, and interested public have been waiting more than a year for an opinion in the high profile Brewington v. State case. The case was transmitted to the Indiana Supreme Court on March 26, 2013. Oral argument was held September 12, 2013. Nearly seven month later, still no opinion. Although I won’t predict an outcome, based on the oral argument questioning and subsequent delay I would be surprised if the opinion is unanimous; the writing of separate opinions and accompanying revision(s) of the draft majority opinion generally add considerably to the time it takes to decide a case.

The following chart considers the timing of opinions, authorship and unanimity, and whether the Court of Appeals and trial court were affirmed or reversed in the criminal cases decided last quarter.

Nine Month Average

The wait from arrival at the Supreme Court to the rendering of an opinion ranged from 167 days in an appeal from the State involving credit time (State v. Lotaki) to nearly a year in the high profile Christopher Smith v. State appeal that addressed a principal’s failure to “immediately” report child abuse. The average was 278 days.

That time period can be broken into three general categories. The shortest period is from the transmission of a case to the Supreme Court to a decision on whether to grant transfer. This took only two and a half weeks in some cases to just under two months in the only juvenile delinquency appeal decided last quarter. Adult criminal cases are generally sent directly to each justice to evaluate before the Court’s weekly conference, while juvenile delinquency (and most civil cases) are delayed a few weeks while a memo is prepared by staff attorneys in the Supreme Court Administration office. Excluding the one juvenile appeal, the court took an average of just three weeks to make a transfer decision.

After transfer is granted, oral argument is generally scheduled, although the order setting argument may not be issued for several weeks or longer. Arguments were heard in as short as two months (Robinson) or as longer than six months (Smith and Coats). The average delay from transfer grant to oral argument was 140 days.

Finally, after hearing oral argument, the Indiana Supreme Court sometimes decided criminal cases in as short as two months (Alexander) or longer than six months (Robinson). The average was 133 days.

Decline in Unanimity

Only six of the nine opinions (67%) were unanimous. Inman generated a concurring opinion from Justice Massa, while Robinson and Smith each generated dissenting opinions written by Justice Rucker. Not surprisingly, the cases with separate opinions took longer (an average of 171 days from oral argument) than the unanimous opinions, which were issued more quickly (only 104 days after argument). Considering the total period of time from arrival at the supreme court, the two per curiam opinions were the quickest to receive a decision (an average of only 204 days), which is expected because the Court usually issues per curiam opinions in straightforward cases in which the justices are unanimous.***

Trial courts fared well in transfer opinions; the Court of Appeals did not

The trial court was affirmed in seven of the nine cases in which the supreme court issued opinions. What is more, the importance of deferring to trial courts was emphasized in at least two of the cases. In Keck, which was decided along with Robinson, Justice Massa explained:

when it comes to suppression issues, appellate courts are not in the business of reweighing evidence. And we reiterate that principle today; our trial judges are able to see and hear the witnesses and other evidence first-hand. But the appellate bench, in a far corner of the upper deck, doesn’t provide such a clear view. Remote from the hearing in time and frequently in distance, we review a cold paper record. Thus, unless that record leads us to conclude the trial judge made a clear error in his findings of fact, we will apply the law de novo to the facts as the trial court found them.
The only two cases in which the trial court was reversed were appeals by the State. In Coats, the supreme court reversed a trial court’s refusal to commit an incompetent defendant suffering from Alzheimer’s disease to the Division of Mental Health and Addiction (DMHA): “By finding Coats not competent to stand trial but refusing to order commitment, the trial court did not follow the law as it is written.” In Lotaki, the trial court erred by ordering jail credit time for a mandatorily consecutive sentence.

Finally, although the supreme court sometimes reaches the same result as the court of appeals, a grant of transfer was almost always greeted with a different outcome during the past quarter. The two exceptions were Keck, in which the court of appeals had affirmed the trial court’s grant of a motion to suppress, and I.T., where the supreme court disagreed with the court of appeals’ dismissal of the State’s appeal but nevertheless reached the same outcome in favor of the juvenile by “constru[ing] the Juvenile Mental Health Statute’s limited immunity as prohibiting both use and derivative use of a juvenile’s statements to prove delinquency.”
___________________
*A separate post will provide similar analysis for civil cases decided during the first quarter.

**The first four columns in the chart consider the number of days for various time periods of each appeal to the Indiana Supreme Court: transmission on transfer to grant of transfer; grant of transfer to oral argument; oral argument to opinions; and the total amount of time. If one or more of these steps did not occur in a case, the box was left blank. The next two columns address the authoring justice (by initials) and any dissenting justices. U=unanimous opinion; C=concurring opinion. Finally, the last two columns consider whether the outcome of the court of appeals’ opinion and the trial court’s decision were affirmed or reversed by the supreme court.

***Although not a criminal case and therefore excluded from this analysis, the justices issued a per curiam opinion last quarter in the Judge Kimberly Brown judicial ethics case. That non-unanimous decision was issued only 32 days after the Commission’s reply brief was filed.

Posted by Marcia Oddi on April 11, 2014 02:45 PM
Posted to Schumm - Commentary

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: J.F. & N.F. (Minor Children), and A.M. (Father) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (3):

Randall Langford v. State of Indiana (NFP)

G.W. v. State of Indiana (NFP)

Ray A. Brooks v. State of Indiana (NFP)

Posted by Marcia Oddi on April 11, 2014 10:52 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - " A Marion County Judge is expected to rule by the end of the month on when Indiana drivers can begin applying for new vanity license plates again"

That is the lede to this WISHTV story April 9th by Troy Kehoe, who reports on a court hearing Wednesday:

The legal battle surrounding the program has been ongoing since July when former BMV Commissioner Scott Waddell suspended the state’s personal license plate (PLP) program following a lawsuit filed by Greenfield Police Corporal Rodney Vawter.

Vawter claimed the agency’s decision to revoke his personalized plate, which reads “0INK” next to a Fraternal Order of Police logo, was unconstitutional.

The American Civil Liberties Union, which filed the lawsuit on Vawter’s behalf, filed a motion in November requesting a summary judgment, or immediate ruling in the case. The motion contends that “there are no contested issues of fact,” and that Vawter and others in the class action lawsuit are entitled to “appropriate injunctive and declaratory relief.”

The motion for summary judgment comes in the wake of an I-Team 8 investigation in October that found inconsistencies in how the BMV decides what personal license plate requests to approve and deny.

ACLU Attorney Ken Falk cited many of the examples uncovered by I-Team 8′s investigation during Wednesday’s hearing before Judge James Osborn, arguing that decisions are made arbitrarily by an appointed panel of BMV employees using a “rough guideline” of examples. The BMV admitted that plate approval requests “may depend on who is making the decision that day,” according to depositions cited in court.

“That’s a First Amendment violation,” Falk told I-Team 8 following the hearing. “The standards governing plates are so vague, so amorphous, and so subject to individual discretion, that’s it’s unconstitutional. And, that’s demonstrated by the examples of what plates are approved and what plates are not approved.”

Falk also told the Judge that the BMV’s policy on how personal plates are approved and denied is not available to the public, as required by law. He also argued the BMV’s commissioner does not have the legal authority to suspend the program.

More from the story:
But, the BMV, represented by the Indiana Attorney General’s office, argued that Vawter had not appealed his plate revocation prior to filing his lawsuit, as required by Indiana law. It also argued that since its plate approval process relies on a “policy” rather than a “rule” it does not have to be disclosed to the public in order to be valid.

“The question is: is this government speech or private speech,” said Deputy Attorney General Betsy Isenberg in court. “License plates belong to the state. That makes the plate, and everything on it, government speech.”

“I just think that’s wrong,” Falk responded. “There’s no case in America that supports that, and there are many, many cases that say exactly to the contrary. It’s silly to argue that when I put “GO IU” on my plate that that’s government speech,” Falk responded. The plate is owned by the government, sure. But, as I said in court, so are parks. And, no one would think that if I’m protesting in a park that somehow that becomes government speech.”

Both sides have asked for an immediate ruling on their behalf. Judge Osborn asked both sides to submit their final court orders by April 21. His ruling is expected to be issued shortly after that, Falk said.

Posted by Marcia Oddi on April 11, 2014 10:44 AM
Posted to Indiana Government

Ind. Decisions - "Federal judge orders Indiana to recognize marriage of gay couple before one partner dies"

Here is the AP take on yesterday's SD Ind. decision (earlier posts here and here). Some quotes from Charles D. Wilson's story:

INDIANAPOLIS — A federal judge ordered Indiana on Thursday to recognize the out-of-state marriage of a gay couple before one of the women dies of cancer. The decision, specific to the couple, doesn't affect other lawsuits challenging Indiana's ban on same-sex marriages.

U.S. District Court Judge Richard L. Young in Evansville granted the request by Niki Quasney and Amy Sandler for a temporary restraining order that forces Indiana to recognize "this particular couple's out of state marriage," said Paul Castillo, an attorney for the national gay rights group Lambda Legal, who represented them.

The state must recognize their marriage immediately, Castillo said. "They have to be treated as any other married couple," he said.

Quasney said she felt grateful for the judge's ruling.

"We are so thankful that we can move forward and concentrate on being with each other. Our time together and with our daughters is the most important thing in the world to me," Quasney said in a statement. Sandler and Quasney, of Munster, had asked Indiana to recognize their 2013 marriage that took place in Massachusetts, one of 17 states where gay marriage is legal. Indiana does not recognize same-sex marriages performed inside or outside of the state.

Indiana Solicitor General Thomas Fisher argued that Indiana's current law "does not allow for hardship exceptions," attorney general's spokesman Bryan Corbin said in a statement after the ruling.

Young's decision doesn't affect other lawsuits challenging Indiana's gay marriage ban.

Posted by Marcia Oddi on April 11, 2014 10:22 AM
Posted to Ind Fed D.Ct. Decisions

Thursday, April 10, 2014

Ind. Gov't. - "Top Indiana lawmaker, family had millions on line in nursing home fight"

Tom LoBianco of the AP has a new, devastating report, via the Columbus Republic, on what Rep. Eric Turner stood to lose if a proposed ban on construction of new nursing homes in Indiana had become law this year. The story begins:

INDIANAPOLIS — A top Indiana lawmaker, his family and investors in their company risked losing millions in future profits if a proposed ban on construction of new nursing homes in Indiana had become law this year, an Associated Press review has found.

Instead, the bill died after intense private lobbying by Republican House Speaker Pro Tem Eric Turner, who now faces scrutiny over his actions on legislation that would have directly affected his family.

Public and private financial documents show Turner and other direct investors in Mainstreet Property Group rely on building new nursing homes to make money, generating returns of up to 600 percent in some cases. Each deal for a new home that Mainstreet completes with HealthLease Properties in Canada, an affiliated company in which Turner and his family are also investors, can net investors a collective $2 million or more.

Turner, R-Cicero, maintains that business model would have survived the proposed moratorium, and a ban simply would have led them to do business in other states.

Financial analysts who reviewed a private Mainstreet financial document for The Associated Press disagreed, concluding that the Indiana ban would have drastically cut into the company's profits by placing the state — where many of its facilities are located and others are planned — off limits.

Turner's private lobbying against the ban in the final two days of the legislative session has drawn scrutiny from Statehouse leaders, with fellow Republican House Speaker Brian Bosma ordering the House Ethics Committee to investigate Turner's actions.

Supporters of the moratorium, which would have halted new construction for five years, argued it was needed to keep the market from being flooded and prevent older facilities from going out of business. But opponents of the ban, including Turner and his children, argued it violated free market principles.

The bill died after Turner's push during private meetings of the House Republican Caucus, where decisions are frequently made before lawmakers return to public debate.

"It looks like he stood to benefit the most from this bill dying," said Tim Sadler, a business consultant and president of the Fairfax Group, which operates nursing homes in Indiana.

Posted by Marcia Oddi on April 10, 2014 05:24 PM
Posted to Indiana Government

Courts - "Federal Appeals Court Hears Arguments Over Utah’s Same-Sex Marriage Ban"

Here is Chris Geidner report in BuzzFeed on this morning's oral argument (see ILB post here) before the 10th Circuit panel.

More reports will be added to this post...

[Update] Here is a direct link to the audio of today's oral argument. (h/t/ @AppellateDaily)

[More] Here is Joan Biskupic's story for Reuters.

Posted by Marcia Oddi on April 10, 2014 02:41 PM
Posted to Courts in general

Ind. Decisions - More on: SD Ind. grants emergency request for immediate, 28-day recognition of the out-of-state marriage of one Indiana couple

Attorney General Zoeller's office has issued this statement re today's decision:

EVANSVILLE, Ind. -- On Thursday in the U.S. District Court for the Southern District of Indiana, Chief Judge Richard L. Young granted a temporary restraining order (TRO) instructing the Indiana State Department of Health on how it should issue a death certificate concerning two plaintiffs, Nikole Quasney and Amy Sandler, in Baskin et al. v. Bogan et al., a legal challenge to Indiana’ s marriage law, and instructing the State to recognize the marriage of those two plaintiffs only. Thursday’s TRO applies solely to Quasney and Sandler only; it does not apply to the other plaintiffs in the Baskin case, nor to any of the plaintiffs in four other legal challenges to Indiana’s marriage law, nor to anyone else in Indiana. The temporary restraining order is in effect only until May 8 and the Court will schedule a preliminary injunction hearing soon on the plaintiffs’ request to extend the order indefinitely. At the preliminary injunction hearing, both sides will have the opportunity to make their arguments.

Because the temporary restraining order involves two plaintiffs and one death certificate only, it does not apply in any way to marriage licenses of others. County clerks in Indiana will be notified that there is no change in legal requirements for granting marriage licenses as a result of this TRO. County clerks still are prohibited by law from issuing marriage licenses to same-sex couples.

Defending the State of Indiana, the State Department of Health and the marriage statute is the State’s lawyer, the Indiana Attorney General’s Office. At Thursday’s hearing in federal court in Evansville, Solicitor General Thomas M. Fisher of the Attorney General’s Office presented the State’s legal argument that under the current rule of law, the marriage statute does not allow for hardship exceptions, and the relief the plaintiffs sought could not now be granted. Temporary restraining orders cannot be appealed; so the legal issue will be considered again and more fully at the Court’s upcoming preliminary injunction hearing.

Five legal challenges to the marriage statute are assigned to Chief Judge Young in U.S. District Court. The Indiana Attorney General’s Office is defending the State and statute in all five cases.

Posted by Marcia Oddi on April 10, 2014 02:13 PM
Posted to Ind Fed D.Ct. Decisions

Environment - More on "Don’t let legislators decriminalize poaching"

Updating this ILB post from Feb. 17, 2014, which quoted a letter to the editor in the Indianapolis Star, signed by Jeff Wells, President, Indiana Conservation Officers Organization, Maureen Hayden of CNHI has a story this afternoon in the Clark County News & Tribune, headed " Some outdoor recreational laws being eliminated in Indiana: Law eases dozens of penalties, removes some crimes ." Some quotes:

A law that takes effect July 1 ... will significantly change the state's boating, hunting and fishing rules. It eases dozens of penalties, removes some crimes and gives judges, prosecutors and state conservation officers more discretion over enforcement.

More violators will be cited with an infraction and fine — like a speeding ticket — rather than face the threat of jail, a criminal record and the loss of hunting, fishing and boating privileges.

Poaching a deer will still be illegal, for example, but it will no longer be a crime for a boat owner to post his license number in the wrong place on the vessel — unless it’s done to deceive law enforcement.

More penalties will be discretionary. A first-time offense of poaching a deer now carries an automatic $500 fine. Under the new law, it will be up a judge to impose the fine.

The changes were part of a larger effort to rewrite Indiana’s criminal code to make punishments more fitting of their crimes. Supporters say the law still protects natural resources but without such a heavy hand.

“If the law said you could only catch and keep a fish that was 14 inches long, it was a crime if it was 14 and a half inches,” said Rep. Jud McMillin, R-Brookville, whose district includes Brookville Lake, which attracts about 1 million visitors a year. “We need to reserve our criminal penalties for real crimes.”

Sen. Brent Steele, R-Bedford, crafted the changes last summer as a member of the Legislature's Criminal Sentencing Policy Study Committee. It’s the same group that pushed the General Assembly to increase prison time for violent and sex offenders this year while lowering sentences for low-level drug and non-violent offenders.

Steele wanted to decriminalize even more offenses policed by the state's Department of Natural Resources than what ended up in the final bill.

He argued that prosecutors, busy with other crimes, were refusing to take cases from DNR officers or allowing offenders to plead to lesser offenses. His solution: Use more civil infractions that don't require a prosecutor to prove an offender's guilt beyond a reasonable doubt. * * *

The Indiana Wildlife Federation wanted to see the bill stalled and sent to a summer study committee. It also cites concerns about diminishing the deterrent effect that Crider prizes.

“We're concerned about the unintended consequences of the law,” said Barbara Simpson, the federation's executive director.

Some DNR officers privately opposed the changes, as well. But DNR officials have publicly supported them, saying important penalties have been left intact and conservation officers have the discretion needed to enforce the rules with common sense.

Conservation officers previously had no discretion, noted DNR law enforcement spokesman Lt. Bill Brown in an email. While the impact of the changes is still unknown, he wrote, “it is anticipated that this bill will serve the citizens, the natural resources and the officer very well in the future.”

Posted by Marcia Oddi on April 10, 2014 01:40 PM
Posted to Environment | Indiana Law

Ind. Courts - Still more on "Tippecanoe Superior Court judge regrets sending campaign email on work computer, account"

Updating this ILB post from Feb. 27th, Ron Wilkins reports today in the Lafayette Journal Courier:

A special prosecutor will handle the investigation into whether Tippecanoe Superior 4 Judge Gregory Donat should be charged for a Feb. 25 campaign email sent from his publicly owned computer and email account.

Tippecanoe County Prosecutor Pat Harrington filed paperwork Wednesday recusing himself and his office from the case to avoid the appearance of impropriety.

Harrington’s filing requested that Todd Meyer, Boone County prosecutor, be appointed to oversee the review of the Indiana State Police investigation findings when the report is completed. If Harrington’s equest is approved, Meyer will also then decide whether Donat should be charged.

Posted by Marcia Oddi on April 10, 2014 01:37 PM
Posted to Indiana Courts

Ind. Decisions - SD Ind. grants emergency request for immediate, 28-day recognition of the out-of-state marriage of one Indiana couple

Updating this post from earlier this morning, SD Ind. Chief Judge Richard Young has, per this Indy Star story by Jill Disis:

... this morning granted an emergency request to force Indiana to immediately recognize the marriage of a lesbian couple who wed in Massachusetts.

Judge Richard Young heard arguments in Evansville, where attorneys for Amy Sandler and Niki Quasney argued for immediate recognition of the couple's Massachusetts marriage via a temporary restraining order. Quasney, of Munster, was diagnosed in 2009 with ovarian cancer and is terminally ill.

The order will last for 28 days. A preliminary injunction hearing is scheduled at that time. * * *

The state argued that its definition of marriage is based on protections for children who come out of unplanned pregnancies and that granting temporary restraining orders are not a matter of emotional equity but of legal rights.

Posted by Marcia Oddi on April 10, 2014 01:15 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Law - Responsible Property Transfer Act repealed this session

The long-time (since 1996) Indiana Responsible Transfer Law was repealed this session, as part of HEA 1005, a bill concerning "government reduction." The repeal involve both the definitions, found in various sections of IC 13-11, and the law itself, IC 13-25-3, which is repealed by SECTION 81, at p. 45. (BTW, you can no longer reliably find repealers by looking at the end of a bill.) The repeal goes into effect July 1. This unpublicized repeal comes as a surprise to the ILB.

Posted by Marcia Oddi on April 10, 2014 11:34 AM
Posted to Environment | Indiana Law

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In HRC Hotels, LLC v. Metropolitan Board of Zoning Appeals Division II of Marion County, Indiana, Jeffrey R. Baumgarth and The Myers Y. Cooper Company, a 12-page opinion, Chief Judge Vaidik writes:

Myers Y. Cooper Corporation (“Myers Cooper”) requested a variance for its property to build a pet day-care facility. At the hearing, I-465 LLC, the owner of an adjacent Hilton Homewood Suites Hotel, protested due to the noise that would be caused by pets staying so close to its hotel. After the Marion County Metropolitan Development Commission Board of Zoning Appeals (“BZA”) granted the variance, HRC Hotels, LLC (“HRC Hotels”), the parent company of I-465 LLC, filed a petition for judicial review in the trial court. Myers Cooper responded, arguing that HRC Hotels lacked standing to file the petition for judicial review. After the deadline to file a review petition, HRC Hotels filed a motion to amend the petition for judicial review to substitute I-465 LLC as the real party in interest. The trial court dismissed HRC Hotels’s petition concluding that HRC Hotels lacked standing to file a petition for judicial review and therefore the trial court lacked subject-matter jurisdiction to consider HRC Hotels’s motion to substitute the real party in interest. HRC Hotels now appeals.

We conclude that the standing requirements under Indiana Code section 36-7-4-1603 are procedural rather than jurisdictional. Therefore, HRC Hotels’s alleged lack of standing when the petition was filed does not deprive the trial court of subject-matter jurisdiction. Because the trial court does have subject-matter jurisdiction to consider HRC Hotels’s motion to amend its petition for judicial review, it should substitute I-465 LLC as a real party in interest and hear the merits of the petition for judicial review. We reverse the trial court’s decision and remand for further proceedings.

In Michael Johnson v. State of Indiana, a 20-page opinion, Judge Pyle writes:
Issues: 1. Whether Johnson knowingly, voluntarily, and intelligently waived his right to a jury trial on all of his charges. 2. Whether the trial court abused its discretion in denying Johnson the right to cross-examine the victim about past sexual conduct.3. Whether the State presented sufficient evidence to prove beyond a reasonable doubt that Johnson committed Class B felony rape and Class D felony intimidation. * * *

Affirmed.

MATHIAS, J., concurs.
BRADFORD, J., concurs in result with opinion. [which begins, at p. 20 of 20] I agree with the majority that Johnson has waived any argument he might have had concerning I.B.’s testimony about her sexual history with Johnson. I would reach that conclusion, however, on the more fundamental basis that Johnson made no offer of proof as to what I.B.’s testimony would have been.

NFP civil opinions today (1):

Richard Brown and Janet Brown v. City of Valparaiso, Indiana (NFP)

NFP criminal opinions today (5):

Monterius D. Sharp v. State of Indiana (NFP)

Dawayne J. Thomas v. State of Indiana (NFP)

John Orville Study v. State of Indiana (NFP)

Adam W. Powell v. State of Indiana (NFP)

Jamie L. Strickler v. State of Indiana (NFP)

Posted by Marcia Oddi on April 10, 2014 11:18 AM
Posted to Ind. App.Ct. Decisions

Courts - Lost or unfinished court transcripts issue arises again

The ILB has had many entries over the years on lost or unfinished court transcripts.

Earlier this month the NY Post run a story headed "Rogue alcoholic court reporter kept writing ‘I hate my job.’" The story, by Rebecca Rosenberg, Reuven Fenton and Bruce Golding, began:

An alcoholic Manhattan court stenographer went rogue, channeling his inner “Shining” during a high-profile criminal trial and repeatedly typing, “I hate my job, I hate my job” instead of the trial dialogue, sources told The Post.

The bizarre antics by Daniel Kochanski, who has since been fired, wreaked havoc on some 30 Manhattan court cases, sources said, and now officials are scrambling to repair the damage.

The headline from the more staid NYT was "Stenographer, Fired Over Drinking Problem, Left Headaches for Appellate Courts." From the long story, reported by James C. McKinley Jr.:
The missing records from State Supreme Court in Manhattan, including the 2010 mortgage-fraud trial of Aaron Hand, highlight a major pitfall in relying solely on stenographers to safeguard the official record of trials, as most courts in New York State do, appellate lawyers said.

“Why are we in this 18th-century system where someone is taking it down in their own indecipherable notes?” said Claudia Trupp, a supervising attorney at the Center for Appellate Litigation, which is handling Mr. Hand’s appeal. * * *

The omissions in Mr. Kochanski’s trial records, which were kept on dozens of compact discs, have led the Appellate Division of State Supreme Court to order prosecutors and defense lawyers to hold “reconstruction hearings” in some cases, at which the lawyers, witnesses and judge try to recall what was said in court.

In Mr. Hand’s fraud trial, Mr. Kochanski’s notes omit two days of the jury selection proceedings, and the Appellate Division has ordered a reconstruction, which will take place April 29.

Ms. Trupp said the appeals of Derrick Miller, who was convicted of grand larceny, and Brandon Lewis, who was convicted of assault, were each delayed for more than seven months while lawyers tried to piece together what was said. In Mr. Lewis’s case, the judge’s instructions to the jury were missing, she said.

On April 7th, the NYT ran a debate on its opinion pages, on the question "Are Court Stenographers Necessary?" You may read the various positions here.

Posted by Marcia Oddi on April 10, 2014 10:33 AM
Posted to Courts in general

Ind. Decisions - "Court of Appeals decision creates uncertainty for Lake County adoptions"

Some quotes from Bill Dolan's story today in the NWI Times:

CROWN POINT | Local judges are changing their court procedures in the wake of a ruling that could unsettle the validity of hundreds of Lake County adoptions.

Beginning this week, Lake Juvenile Court will no longer hear petitions for adoptions or guardianships over minors, under orders signed by Circuit Court Judge George Paras and Chief Superior Court Judge Jon Pera.

Instead, those cases now will be filed either in Lake Circuit Court or Lake Superior Court, Civil Division.

This reverses 14 years of Superior Court policy to keep adoptions and guardianships in juvenile court, which oversees other family law cases such as child abuse and neglect cases, and disputes over paternity and child support.

It also signals concern about whether the old policy creates technical defects in adoptions the juvenile court had approved since 2000. The Indiana Department of Child Services recently expressed concern these hundreds of adoptions are "at risk," according to a court of appeals document.

The Court of Appeals opinion, filed March 12, 2014 (and not identified in the story), is In re the Adoption of: J.T.D. & J.S. (Minor Children), Children to be Adopted, and N.E. (Prospective Adoptive Parent) v. Indiana Department of Child Services .

Posted by Marcia Oddi on April 10, 2014 10:13 AM
Posted to Ind. App.Ct. Decisions

Courts - More on: Thursday in the 10th Circuit, constitutionality of Utah same sex marriage ban review

Also today, as noted in this ILB post yesterday, "all eyes are focused on the 10th Circuit," to paraphrase the headline from The Deseret News quoted in this How Appealing post.

Indiana is represented in this 10th Circuit action, as Attorney General Zoeller has authored and filed an amicus brief on behalf of the State of Indiana supporting the State of Utah in opposing same-sex marriage.

And a piece of until now unreported news. Our Indiana attorney general on Friday, April 4th authored and submitted an amicus brief in the Fourth Circuit same-sex marriage challenge, Bostic v. Schaefer. Here is the amicus brief. The following states joined Indiana on its amicus brief: Alabama, Alaska, Arizona, Colorado, Idaho, Louisiana, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Utah and Wyoming.

Interestingly, in this opinion piece in the Sunday, April 6th LaPorte Herald-Argus, Indiana Attorney General Greg Zoeller writes:

As Indiana attorney general, I have been asked why my office is defending [ Indiana's traditional marriage definition law] in court when some AGs in other states are not defending their states' traditional marriage laws from similar lawsuits.

I explain that I took an oath to represent and defend Indiana's state government and its existing statutes. I don't make the laws — that's the Legislature's job — but I have a solemn obligation to defend those laws while there is a good-faith defense, and I cannot shirk my duty nor abdicate that responsibility to others.

This is not personal advocacy on my part or by the lawyers who work in my office. Whenever the State of Indiana is sued, you - the taxpayers and citizens of the state — are really being sued collectively, and you are entitled to counsel.

The long opinion piece does not, however, explain why our Attorney General has elected to author and submit amicus briefs in courts across the county, defending the statutes of these other states when they have been sued.

Posted by Marcia Oddi on April 10, 2014 09:38 AM
Posted to Courts in general

Ind. Courts - Ind. federal court this morning to hear motion to order Indiana to recognize immediately the marriage of a lesbian couple from Munster

From a news release from Lamba Delta:

(Evansville, IN, April 9, 2014) — On Thursday, April 10th at 9:30am CT, a federal court will hear Lambda Legal’s motion to order the state of Indiana to recognize immediately the marriage of a lesbian couple from Munster. Amy Sandler and Niki Quasney and their two children seek immediate relief from Indiana’s refusal to recognize the legal marriages of same-sex couples entered into in another state as Ms. Quasney has been diagnosed with stage four cancer and likely cannot wait any longer for the protections of marriage.

The case, Baskin v. Bogan, was filed by Lambda Legal on March 10th in the United States District Court in the Southern District of Indiana. Lambda Legal is seeking the freedom to marry in Indiana as well as the recognition of legal out of state marriages of same-sex couples. Plaintiffs include four Indiana couples who wish to marry in their home state of Indiana as well as one couple legally married in Massachusetts but urgently in need of having their marriage recognized in Indiana. Amy Sandler and Niki Quasney have been together for 13 years and have two children. Ms. Quasney was diagnosed with stage-four ovarian cancer in 2009 and the couple cannot wait any longer for the protections of marriage.

See earlier ILB post here.

Posted by Marcia Oddi on April 10, 2014 09:12 AM
Posted to Indiana Courts

Wednesday, April 09, 2014

Courts “'Copyright troll' Prenda Law completely bombs at appeals court"

That "appeals court" would be the 7th Circuit.

How Appealing
has collected the links in two posts today, here and here.

The quoted headline is from this story by Joe Mullin of Ars Technica. Both Judge Diane Sykes and Chief Judge Diane Wood were on the panel, along with Judge Michael Kanne.

Posted by Marcia Oddi on April 9, 2014 01:37 PM
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides Indiana case April 7th

In USA v. Stephanie Donelli (SD Ind., Barker), a 10-page opinion, Judge Hamilton writes:

Defendant Stephanie Donelli appeals the 60-month prison sentence she received after pleading guilty to wire fraud and tax evasion. She argues that the district court made a procedural error by failing to address her diagnosis of a mental illness, bipolar II disorder, which Donelli now calls a “principal argument in mitigation.”

Since our decision in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), we have required sentencing judges to address a defendant’s principal arguments in mitigation when those arguments have recognized legal merit. See, e.g., United States v. Vidal, 705 F.3d 742, 744 (7th Cir. 2013); United States v. Chapman, 694 F.3d 908, 913–14 (7th Cir. 2012); United States v. Gary, 613 F.3d 706, 709 (7th Cir. 2010). Our cases do not show clearly, however, what is necessary for a defendant’s mitigation argument to trigger the district court’s duty to explain under Cunningham. Donelli asserts that briefly mentioning her bipolar disorder at sentencing was enough to require a response from the district court.

We disagree, and we affirm Donelli’s sentence for two independent reasons. First, she failed to present the fact of her diagnosis as a principal argument in mitigation relevant to her sentence. Second, she waived her claim of a Cunningham procedural error by telling the district court at the close of her sentencing hearing that she had no objection to her sentence apart from the fact that the sentence was above the guideline range.

Posted by Marcia Oddi on April 9, 2014 01:19 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In State Farm Fire & Casualty Company a/s/o Kenneth Burkhart v. H.H. Niswander , a 10-page opinion, Chief Judge Vaidik writes:

State Farm appeals the trial court’s award of attorney’s fees against it for filing a groundless lawsuit. Before the filing of its complaint against H.H. Niswander, State Farm received a report from its experts about the cause and origin of the fire involved in this case. There was no evidence in the report that H.H. Niswander was negligent or caused the fire. For two-and-a-half years, State Farm continued to litigate its claim against H.H. Niswander requiring it to incur attorney’s fees. Even after State Farm’s expert at a deposition testified that H.H. Niswander was not at fault, State Farm refused to dismiss the claim until the court dismissed it. We affirm the trial court’s dismissal and award of attorney’s fees to H.H. Niswander.
In K.L. v. E.H., a 22-page, 2-1 opinion, Judge Brown writes:
K.L. (“Mother”) appeals the trial court’s order granting the petition for visitation filed by E.H., the paternal grandfather of Mother’s child. Mother raises two issues which we revise and restate as: I. Whether the trial court abused its discretion in excluding certain evidence; and II. Whether the trial court abused its discretion in granting the paternal grandfather’s petition for visitation. We affirm. * * *

For the foregoing reasons, we affirm the trial court’s order.

BARNES, J., concurs.
ROBB, J., concurs in part and dissents in part with separate opinion.

In In re the Order for the Payment of Attorney Fees and Reimbursement of Expenses, State of Indiana v. Jeffrey Cook, an 11-page opinion, Chief Judge Vaidik writes:
Indiana Code section 33-37-2-4 governs the State’s liability for costs of offenses committed by inmates in state correctional facilities. Pursuant to this section, the trial court appointed both a public defender and appellate counsel for Jeffrey Cook, who stabbed to death another inmate at Pendleton Correctional Facility in Madison County, Indiana. Although the State did not contest paying Cook’s public defender $23,488.29 in attorney fees and expenses, it contested paying Cook’s appellate counsel $5232.35 in attorney fees and expenses. The State believed that Section 33-37-2-4 required the State to pay only trial costs, not appellate costs. Instead, the State believed that Madison County should pay the costs of Cook’s appeal. We, however, find that Section 33-37-2-4, which recognizes the financial burden placed on counties containing state correctional facilities, shifts that burden to the State for both trial and appellate costs. Thus, the trial court properly ordered the State to pay Cook’s appellate counsel $5232.35 in attorney fees and expenses.
NFP civil opinions today (2):

In the Matter of the Termination of the Parent-Child Relationship of: G.G. (Minor Child), And A.S. (Mother) & G.G., Jr. (Father) v. The Indiana Department of Child Services (NFP)

Risha Warren v. Review Board of the Indiana Department of Workforce Development and Springs Valley Community School Corp. (NFP)

NFP criminal opinions today (5):

Abelardo Perez-Romero v. State of Indiana (NFP)

Matthew McKinney v. State of Indiana (NFP)

Roger T. Fox v. State of Indiana (NFP)

Antione Marshall v. State of Indiana (NFP)

Zar Dyson v. State of Indiana (NFP)

Posted by Marcia Oddi on April 9, 2014 01:01 PM
Posted to Ind. App.Ct. Decisions

Environment - “I come from Indiana where people rely on coal,” said Janet McCabe

That is a quote from this story today in the LCJ by Gannett Washington reporter Maureen Groppe on Ms. McCabe's testimony yesterday before the Senate Environment and Public Works Committee. (ILB background here.) More:

WASHINGTON – Janet McCabe, the former state air regulator nominated to be the nation’s top air official, called on her Indiana experience to assure senators Tuesday that she’s sensitive to the economic impact of environmental regulations.

Testifying at her confirmation hearing, McCabe said that when she was at the Indiana Department of Environmental Management she worked with both Indiana industries and public health and environmental groups to improve air quality while supporting business.

“I come from Indiana where people rely on coal,” said McCabe, who has been nominated to head the Environmental Protection Agency’s Office of Air and Radiation.

McCabe told the Senate Environment and Public Works Committee that her experience as head of air quality for IDEM from 1998 to 2005 taught her that “government works best when all perspectives are at the table.”

Posted by Marcia Oddi on April 9, 2014 11:37 AM
Posted to Environment

Ind. Gov't. - "An inside look at just how much—and, sometimes, how little—Indiana lobbyists lavish on our lawmakers"

That is the headline to this Indianapolis Monthly article by Adam Wren.

Posted by Marcia Oddi on April 9, 2014 11:33 AM
Posted to Indiana Government