Wednesday, December 07, 2016
Environment - "Trump leaning toward Oklahoma AG Pruitt for EPA chief" [Updated]
A bulletin from Politico includes:
Oklahoma Attorney General Scott Pruitt is President-elect Donald Trump's leading candidate to head the EPA, three sources close to the transition told POLITICO.[Updated at 3:03 p.m.] NYT story: "Donald Trump Picks Scott Pruitt, Ally of Fossil Fuel Industry, to Lead E.P.A."
Pruitt, who has bashed President Barack Obama's EPA, is meeting with Trump at Trump Tower Wednesday. Trump's transition is expected to announce his EPA chief imminently.
One Trump transition source said Pruitt is the "front-runner" for the job, and another source close to the transition said Pruitt's interviews with the Trump transition team had gone well. But sources cautioned that no final decision has been made.
The nomination would put one of the country's leading EPA critics at the helm of the agency. Pruitt has sued the agency over its water regulations and its climate change regulations for power plants.
Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 5 NFP memorandum decision(s))
For publication opinions today (4):
In John C. Morris v. Custom Kitchen & Baths , a 14-page opinion, Judge Robb writes:
John Morris is a licensed building contractor in Vanderburgh County, Indiana, and the sole proprietor of Custom Kitchen & Baths (“CKB”). Morris often uses his contractor’s license, skills, tools, and vehicle in volunteer community projects, particularly with the Boy Scouts of America, in which his son is a participant. In August 2012, Morris suffered an injury while constructing a 10’ x 10’ garden storage shed (“Olivet Project”) for Olivet Presbyterian Church (“Church”) in Evansville, Indiana. The Olivet Project was constructed as a volunteer Boy Scout project and Morris was not compensated for its construction. Following his injury, Morris filed claims with CKB’s worker’s compensation carrier, the Church’s insurance company, and the liability carrier for the Boy Scouts, all of whom paid money to or on behalf of Morris. In 2013, Morris filed an Application for Adjustment of Claim with the Indiana Worker’s Compensation Board (“Board”), which a Single Hearing Member denied. Morris then appealed to the full Board, which affirmed the Single Member’s decision. Morris appeals from the Board’s denial of his Application for Adjustment of Claim, raising one issue for review: whether his injury arose out of and in the course of his employment. CKB cross-appeals, seeking reimbursement of monies paid to or on behalf of Morris. Concluding Morris’ injury arose out of and in the course of his employment, and is therefore covered by Indiana’s Worker’s Compensation Act, we reverse the decision of the Board and remand for a determination of disability benefits. * * *In Don H. Gunderson, et al. v. State of Indiana, et al. , a 22-page opinion, Judge May writes:
We conclude the facts presented inescapably lead to a decision opposite of the Board’s decision, and that Morris’ injury arose out of and in the course of his employment. Therefore, Morris’ injury is covered by the Indiana’s Worker’s Compensation Act. Accordingly, we reverse and remand for determination of the benefits he should receive.
“The shores of the Great Lakes may look serene, but they are a battleground. Members of the public enjoy using the shores for fishing, boating, birding, or simply strolling along and taking in the scenic vistas.” Kenneth K. Kilbert, The Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. 1, 2 (2010). “Repeatedly, however, owners of land bordering the Great Lakes (i.e., littoral owners), armed with deeds indicating they own the shore to the water’s edge or even lower, have tried to stop members of the public from using their property above the water’s edge.” Id. (internal footnotes omitted). Today we are called on to decide one such case.In Reginald Webster v. State of Indiana , a 6-page opinion, Judge Crone writes:
Don H. Gunderson and Bobbie J. Gunderson, as trustees of the Don H. Gunderson Living Trust (collectively, “Gunderson”), sought a declaratory judgment that their Lake Michigan property extends to the water’s edge, wherever the water’s edge is at any given moment. The State of Indiana and the Indiana Department of Natural Resources (“DNR”) (collectively, “State”), Alliance for the Great Lakes and Save the Dunes (“Alliance-Dunes”), and Long Beach Community Alliance (“LBCA”), argued the State holds in trust for the public all land up to the ordinary high water mark (“OHWM”), regardless whether that land is covered by water. * * *
We find persuasive the Michigan Supreme Court’s analysis in Glass v. Goeckel, 703 N.W.2d 58 (Mich. 2005), reh’g denied, cert. denied sub nom Goeckel v. Glass, 546 U.S. 1174 (2006). It addressed a dispute similar to that before us – i.e., whether the public trust land extends up to the ordinary high water mark or whether, as Gunderson argues, it applies only to land that is actually under water at any particular moment. * * *
Following the holding and reasoning in Glass, we conclude Gunderson’s private rights are able to co-exist with those rights of the public trust. Therefore, the land at issue below the OHWM is open to limited public use, such as gaining access to the public waterway or walking along the beach, as described in Glass. * * *
Alliance-Dunes argues the DNR is without authority to set the OHWM as it did in 312 IAC 1-1-26(2). Regulations set forth by administrative boards “must be reasonable and reasonably adapted to carry out the purpose or object for which these boards were created. Potts v. Review Bd. of Indiana Emp’t Sec. Div., 438 N.E.2d 1012, 1015 (Ind. Ct. App. 1982). “If the rules are in conflict with the state’s organic law . . . they are invalid.” Id. We hold 312 IAC 1-1-26(2) is in conflict with well-established case law regarding the state’s ability to regulate the shores of Lake Michigan.
In Lake Sand we held: “The state in its sovereign capacity is without power to convey or curtail the right of its people in the bed of Lake Michigan.” 120 N.E. at 716. As the OHWM prior to 1995 was the common law OHWM as held in Shively, 152 U.S. at 41, the DNR’s staking the OHWM at the measurements set forth in 312 IAC 1-1-26(2) most certainly conveyed or curtailed the rights of the people of Indiana in Lake Michigan. Therefore, that portion of the Indiana Administrative Code is invalid, and the OHWM remains that defined by common-law. * * *
The designated evidence indicates the boundary of Section 15 is Lake Michigan. We held above, based on Glass, Gunderson’s property rights overlap with those of the public trust. Therefore, the northern boundary of Gunderson’s property is the ordinary low water mark, subject to the public’s rights under the public trust doctrine up to the OHWM. * * *
We affirm the trial court’s findings regarding the nature and scope of the public trust as it relates to Lake Michigan. However, we reverse the trial court’s determination of the OHWM’s location.
Gunderson owns legal title up to the northern boundary of Section 15, and the State holds the land below the OHWM as defined at common law. The designated evidence consistently indicates the northern boundary of Section 15 is Lake Michigan. Therefore, we reverse the trial court’s finding northern boundary of Section 15 is unknown, and hold the northern boundary of Section 15 is the ordinary low water mark, subject to the public’s rights as part of the public trust. Affirmed in part and reversed in part.
Reginald Webster appeals his conviction for class A misdemeanor carrying a handgun without a license, following a bench trial. He raises two issues for our review, one of which we find dispositive: namely, he asserts that the trial court clearly erred in denying his Indiana Trial Rule 41(B) motion for involuntary dismissal. Finding that dismissal was warranted, we reverse his conviction. * * *In Albert Burton v. State of Indiana , 5-page opinion, Judge Crone writes:
In response to Webster’s motion for involuntary dismissal, the State argued that similar to the defendant’s possession of a valid license, the location where the defendant is carrying the handgun is an exemption or exception to, rather than an element of, the offense of carrying a handgun without a license. Thus, the State maintained, and the trial court mistakenly agreed, that it was Webster’s burden to prove that 1554 East Naomi Street was his dwelling, property, or fixed place of business as opposed to the State having the burden to prove that 1554 East Naomi Street was not his dwelling, property, or fixed place of business. This was clear error. As we already stated, the location where the defendant is carrying a handgun is an essential element of the charged offense.
Albert Burton pled guilty to operating a motor vehicle while driving privileges are suspended as a level 6 felony under Indiana Code Section 9-30-10-16. The version of the statute in effect when Burton committed the crime provided that a person convicted of a felony under the statute “forfeits the privilege of operating a motor vehicle for life.” Ind. Code § 9-30-10-16(c). Because this provision was repealed before he was sentenced, Burton argued that it did not apply to him. The trial court disagreed but stayed entry of judgment to allow Burton to perfect an interlocutory appeal on the issue. We affirm the trial court and remand with instructions to enter judgment accordingly. * * *NFP civil decisions today (1):
The gist of Burton’s argument is that the lifetime forfeiture provision of Indiana Code Section 9-30-10-16(c) does not apply to him because it was repealed after he committed the offense and before he was sentenced. As a general rule, the law in effect when a crime was committed is controlling. Collins v. State, 911 N.E.2d 700, 708 (Ind. Ct. App. 2009), trans. denied. There are exceptions to this rule, but Burton does not assert, let alone offer any cogent argument, that any of those exceptions apply here. Therefore, we affirm the trial court’s determination that the statute’s lifetime forfeiture provision applies to Burton and remand with instructions to enter judgment accordingly.
 For example, “[t]he doctrine of amelioration allows a defendant to be sentenced under the more lenient provisions of a statute which is in effect at the time of sentencing rather than be sentenced under a more harsh statute in effect at the time the offense was committed.” Winbush v. State, 776 N.E.2d 1219, 1224-25 (Ind. Ct. App. 2002), trans. denied (2003). * * *
NFP criminal decisions today (4):
Ind. Gov't. - "Computer protection cost is close to $200,000: Commissioners OK contracts in wake of ransomware attack"
ANDERSON — The cost to Madison County as a result of the ransonware attack is approaching $200,000 after the Madison County Commissioners approved several contracts.
The commissioners on Tuesday approved contracts for off-site storage of data, a cooperative effort with the city of Anderson for firewall protection and a backup system for the court system.
Earlier this year the county’s computer system was hit by a ransomware attack that locked up county files. At the recommendation of the county’s insurance carrier, a $21,000 ransom was paid to obtain the encryption keys.
Lisa Cannon, director of the IT Department, said a contract with U.S. Signal will cost the county $6,400 per month to store data off-site.
She said the total cost of the three contracts is $198,180 with approval from the Madison County Council expected Tuesday.
Cannon said a second option with US Signal for the entire county computer system including the servers would have cost $11,900 per month.
She said if the individual departments believe they need the additional backup system for their servers, that cost should be included in departmental budgets for 2017.
Cannon said another system being implemented will protect the court system computers from viruses and a potential ransonware attack.
Included in the request was a $240 monthly charge to work in conjunction with the city of Anderson on multiple firewalls to protect the computer systems.
Cannon said she has talked to members of the county council who support the expenditure for the backup systems.
This is on top of the $17,500 the county spent to bring in US Signal to help bring the county’s computer system back on line.
Ind. Law - "DNA bill would keep sample in system even if charges are dismissed"
Updating this ILB post from Nov. 7th, quoting a story from Madeline Buckley of the Indianapolis Star, reporter Buckley has another story today, now that a bill has been prepared (although it apparently is not yet available to the public). From the story [ILB emphasis]:
Indiana lawmakers are once again introducing a bill that would require those arrested on a felony charge to submit to the collection of their DNA for a national database — but this bill would make it harder for arrestees to remove their DNA from the database.
A bipartisan group of lawmakers, along with law enforcement and prosecutors, gathered Tuesday to unveil a bill that state Sen. Erin Houchin, R-Salem, plans to introduce when the next session of the General Assembly convenes in January. Houchin cited the recent arrest of a suspect in the killing of an 82-year-old man — an arrest made because of a DNA collection law in Ohio — as an example of the potential impact of such a law in Indiana.
But Houchin's bill takes a key departure from past versions of the bill: Arrestees could remove their DNA from the database only if they are acquitted of the charge. If prosecutors never file criminal charges after an arrest, or if charges are dismissed, the DNA would remain in the database, under her proposal.
It's a change that is likely to be challenged by critics who believe DNA should be removed from the database if there is not a conviction. However, Houchin said that measure is crucial to keeping people safe.
Removing DNA from the system only upon acquittal is important, she said, because of the challenges of bringing sex crimes to trial. She also noted that often if a case is transferred to federal court, charges are dismissed by the state. * * *
Larry Landis, executive director of the Indiana Public Defender Council, said the group likely would advocate for removal of DNA from the database if no conviction results from the arrest.
"If you’re not convicted, it should be expunged," he said.
Whether a DNA collection bill gets a hearing in the House Courts and Criminal Code Committee depends on how many bills are assigned to the committee, said Rep. Thomas Washburne, who chairs the committee. He said any opposition to measures in the bill could be worked through in committee hearings.
"The opposition to the bill will come from people who think that being arrested is not enough to warrant the invasion of privacy of taking DNA and giving it to government," said Washburne, R-Darmstadt. "Anything that makes it more difficult to get the DNA sample out of the system would engender opposition."
Ind. Gov't. - Butler University Police to release records when requested "as if HB 1022 had become law"
Katie Goodrich, editor of The Butler Collegian, reports in a long story today that begins:
The Butler University Police Department adopted a policy to release some of their police records when requested.Later in the story:
No law mandated this action, but recent activity on the legal landscape of Indiana did.
The Indiana Supreme Court affirmed private university police departments do not have to release their records under Indiana’s Access to Public Records Act in a case two weeks ago.
Gov. Mike Pence vetoed House Bill 1022 during the 2016 legislative session that would have released some private university police records.
Indiana law also does not consider BUPD a public agency.
Despite these facts, BUPD already released records to the Collegian for some articles this year, including the report about the theft from the bookstore in Atherton Union.
“There should be transparency in what we do,” Public Safety Director Ben Hunter said. “If you talk to other campus police chiefs, they would absolutely agree.”
After Butler’s General Counsel Claire Aigotti was told about the new policy, BUPD began operating as if the proposed bill became law.
“What I’ve told my team is that if a student rises to the level of an arrest, that’s a life choice they made,” Hunter said. “They can’t be disappointed if that is a public record. So, we are moving forward like the bill passed.”
House Bill 1022 defined arrest records and other criminal offenses at private universities as public records, meaning BUPD and other private university police departments would have to release those records under Indiana law, but it did not apply to cases handled within the university.
The bill was crafted to not include records protected under Family Educational Rights and Privacy Act, commonly called FERPA. This federal law seals student information, such as grades, health records, discipline files or financial information.
Hunter and colleagues from the Independent Colleges of Indiana, a nonprofit organization for the 31 private colleges in the state, worked to help pass this bill. Only one legislator voted against the bill, but it could not be law because of Pence’s veto.ILB: From a SB Tribune story at the time:
This all happened while private university police departments gained headlines from the ESPN v. University of Notre Dame appeal court case, in which an ESPN reporter sued for access to Notre Dame police reports about possible criminal activity of football players.
Pence’s veto came a week after the Court of Appeals unanimously decided on Notre Dame’s side.
“Limiting access to police records in a situation where private university police departments perform a government function is a disservice to the public and an unnecessary barrier to transparency,” Pence said in a news release.
In a statement explaining his veto, Pence said he has "long believed in the public’s right to know and a free and independent press."
"Limiting access to police records in a situation where private university police departments perform a government function is a disservice to the public and an unnecessary barrier to transparency," the statement said.
Pence had hinted at his decision last week, when he said his "strong bias for the public's right to know" would weigh heavily in his decision on whether to veto the bill. * * *
In the ESPN-Notre Dame court battle, the appeals court ruled that the university's police department is a public agency and subject to open records laws. The South Bend Tribune filed a brief in support of ESPN in the court case, and urged Pence in an editorial last week to veto HB 1022. * * *
The bill was sponsored by State Rep. B. Patrick Bauer, D-South Bend. It was pushed by the state's private colleges and would have exempted them from more stringent crime reporting requirements faced by other police agencies in Indiana, including those on public university campuses.
Tuesday, December 06, 2016
Ind. Decisions - 7th Circuit decides dispute between Benton Co. wind farm and Duke re wind-generated power
In Benton County Wind Farm LLC v. Duke Energy Indiana, Inc. (SD Ind., Barker), a 26-page opinion, including an 11-page concurring opinion, Judge Easterbrook writes:
In 2005 Duke Energy Indiana offered to buy 100 megawatts of renewable energy at a price high enough to enable potential sellers to finance the construction of wind turbines. As part of the deal Duke would acquire renewable-energy credits that buyers or generators of wind energy can trade or sell to other utilities that lack wind generation. Benton County Wind Farm (Benton) accepted Duke’s offer and built a 100-megawatt facility that became operational in 2008. The contract between Duke and Benton requires Duke to pay Benton for all power delivered during the next 20 years. Duke does not have its own transmission lines in Benton County, and the contract requires Benton to deliver to lines owned by Northern Indiana Public Service Company (NIPSCO) or some other place designated by the regional transmission organization, the Midcontinent Independent System Operator (MISO). * * *
Potential buyers and sellers of electricity could and did foresee when negotiating this contract (and others like it) that electrical grids may be swamped by new sources of renewable power, which usually is located far from the centers of demand. They needed to allocate the risk of that development, which predictably would compel MISO to alter its rules for which sources could put power on the grid. Allocating the risk to Benton would have made it hard, perhaps impossible, to finance the project’s construction, while leaving Duke and similar utilities no incentive to expand the regional grids as wind power became available. Allocating the risk to Duke facilitates both construction of renewableenergy sources and better incentives to match the size of the transmission grid to the capacity for local generation. We read this contract as allocating the risk to Duke, which means that Benton receives the compensation provided by §4.6(a) and Duke has the right incentives to build or buy extra transmission capacity. * * *
The judgment is reversed, and the case is remanded with instructions to determine the relief to which Benton is entitled.
[p. 15] POSNER, Circuit Judge, concurring. I agree with the deci‐ sion to reverse the judgment of the district court and remand for a calculation of damages. But I think the majority opin‐ ion’s analysis could be simplified, and in addition I disagree with the majority’s discussion of damages for the breach of the second contract. * * *
I trust that on remand the district judge will be conscious of the “long tradition in contract law of reading contracts sensibly,” not as “parlor games but [as] the means of getting the world’s work done.” Beanstalk Group, Inc. v. AM General Corp., 283 F.3d 856, 860 (7th Cir. 2002), quoting Rhode Island Charities Trust v. Engelhard Corp., 267 F.3d 3, 7 (1st Cir. 2001).
Ind. Decisions - Supreme Court affirms trial court in dissolution of marriage dispute
In In re the Marriage of: Thomas Todd Reynolds v. Tricia Reynolds, an 11-page, 4-1 opinion, Justice David writes:
At issue is whether the trial court abused its discretion when it found Father in contempt for failing to provide Mother certain income documentation as required by the parties’ dissolution decree and agreed order of modification. We hold that it did not. Specifically, we hold that: 1) Mother’s motion for rule to show cause was specific enough to excuse strict compliance with the contempt statute and protect Father’s due process rights; 2) Father waived his objections to the evidentiary findings of the trial court when he agreed to a summary proceeding with no objection; and 3) under the facts and circumstances of this case, the trial court was not required to give Father an opportunity to purge himself of contempt. Accordingly, we affirm the trial court. * * *
The Court of Appeals reversed the trial court for abuse of discretion in a memorandum [NFP] decision for two reasons: 1) the trial court did not strictly comply with the rule to show cause statute; and 2) the trial court failed to give Father a way to purge himself of contempt. Reynolds v. Reynolds, 2016 WL 612763 at *6 (Ind. Ct. App. 2016).
We now grant transfer and affirm the trial court, thereby vacating the Court of Appeals opinion. Ind. App. Rule 58(A). * * *
In light of the standard of review and because: 1) Father received sufficient notice of the specific factual allegations underlying the contempt proceeding; 2) Father did not object to a summary proceeding and the evidence was sufficient to support the trial court’s findings; and 3) the trial court was not required to offer Father an opportunity to purge his contempt under these circumstances, we hold that the trial court did not abuse its discretion in finding Father in contempt for not producing certain tax documents pursuant to the parties’ dissolution decree and the agreed order of modification. Accordingly, we affirm the trial court.
Rush, C.J., Rucker and Massa, J.J., concur.
Slaughter, J., dissents with separate opinion. [that begins, at p. 10]
I respectfully dissent from the Court’s decision to reinstate the indirect contempt against Father. A key procedural protection within the governing contempt statute applies here. See Ind. Code § 34-47-3-5. Specifically, Father was entitled “to be served with a rule of the court” that “clearly and distinctly set forth the facts that are alleged to constitute the contempt”. Id. §§ 34-47- 3-5(a), 5(b)(1). Given the trial court’s acknowledged failure to issue a rule to show cause in accordance with this statutory prerequisite, I would reverse its contempt order. * * *
There can be no mistaking the legislative mandate here. The statute’s opening words command that the procedural requirements recited in this chapter apply “[i]n all cases” of indirect contempt. I.C. § 34-47-3-5(a). The statute’s plain meaning required the trial court to issue a rule to show cause detailing the factual basis for Father’s alleged contempt. Because the court failed to do so, its contempt order should not stand. I respectfully dissent from our decision excusing the trial court’s noncompliance and reinstating Father’s contempt.
Ind. Decisions - More on: Transfer list for week ending December 2, 2016
Yesterday in this post the ILB noted:
- There was one case last week where transfer was denied by a 3-2 vote with two justices recusing:
Schuchman/Samberg Investments, Inc. v. Hoosier Penn Oil Co., Inc., et al.:
Transfer Denied - All Justices concur, except for Massa, J. and Slaughter, J., who did not participate in the decision of this matter.
After noticing the peculiar circumstance of a 3-0 petition denial on Monday, I and my associate, Brooke Smith, were motivated to write an opinion on that topic. I thought it might be of particular interest to you and the law blog in light of your audience, which I believe has numerous appellate lawyers. You have my permission to publish if you deem appropriate.Here is the memo, which the ILB believes is worth reading.
Scott L. Barnhart
Keffer Barnhart LLP
Ind. Gov't. - The 2017-2019 Budget Committee Hearings Begin Tomorrow, But Information is Sparse
Each budget year state governmental entities appear before the State Budget Committee, presenting their plans and budget requests for the next biennium. Here is this year's schedule. Here is a PDF version, formatted differently.
The first session is tomorrow, Dec. 7th. Here are the presentations of particular interest to the ILB:
- Wed., Dec. 7 - 1:00 p.m. - Attorney General (OAG)
- Tues., Dec. 13 - 3:15 p.m. - Supreme Court
However, right now, with a number of agencies, including the OAG, due to make their presentations tomorrow, I am not finding information on either their requests or on videocasting.
Ind. Decisions - Supreme Court decides one today, an attorney disciplinary action re an Indianapolis attorney
In In the Matter of: Divina K. Westerfield, an attorney disciplinary action, the Supreme Court, in a 4-1, per curiam opinion, writes:
We find that Respondent, Divina K. Westerfield, committed attorney misconduct by improperly soliciting employment, failing to refund unearned fees, and engaging in the unauthorized practice of law in Florida. For this misconduct, we conclude that Respondent should be suspended for at least eighteen months without automatic reinstatement. * * *
In each case, the client (who did not have a prior relationship with Respondent or Tope) met Tope through a seminar or similar event. With Tope’s facilitation, each client signed a flat fee representation agreement with Respondent’s firm and provided Tope a series of post-dated installment checks. Thereafter, Respondent’s firm did little or no work for the clients and never pursued a quiet title action or loan reduction as promised. In each case, the client eventually sought a refund of unearned fees. In two cases, Respondent issued no refund, and in the third case she made only a partial refund. * * *
We concur in the hearing officer’s findings of fact and conclude that Respondent violated these Florida Professional Conduct Rules prohibiting the following misconduct:4-1.5(a): Charging and collecting a fee generated by employment obtained through prohibited solicitation.Turning to the issue of appropriate sanction, we first observe that Respondent has a lengthy disciplinary history. * * *
4-1.16(d): Failing to refund an unearned fee.
4-5.5(a): Engaging in the unauthorized practice of law.
4-5.5(b)(1): Establishing an office for the practice of law in Florida despite not being licensed to practice in Florida.
4-7.18(a)(1): Improperly soliciting, either directly or through an agent, employment from a person with whom the lawyer has no prior relationship when a significant motive is the lawyer’s pecuniary gain.
Given the seriousness of the misconduct and the substantial facts in aggravation, we agree with the hearing officer’s recommendation and conclude that Respondent should be suspended for at least eighteen months, after which she may be reinstated only after proving her remorse, rehabilitation, and fitness to practice law. * * *
All Justices concur, except David, J., who dissents regarding the sanction, believing that more severe discipline is warranted.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 4 NFP memorandum decision(s))
For publication opinions today (1):
In L. Ray Yeager, and Phyllis L. Yeager v. Deutsche Bank National Trust Company, as Trustee of the Residential Asset Securitization Tust 2005-A1, Mortgage Pass-Through Certificates, et al., a 10-page, 2-1 opinion, Judge Brown writes:
In this interlocutory appeal, L. Ray Yeager and Phyllis L. Yeager (collectively, the “Yeagers”) appeal the trial court’s provisional order for payment of mortgage, taxes, and insurance premiums (the “Provisional Order”) in a foreclosure action. The Yeagers raise one issue which we revise and restate as whether the court abused its discretion by failing to conduct an inquiry into the Yeagers’ ability to pay prior to issuing the Provisional Order. We reverse and remand. * * *NFP civil decisions today (1):
The record reveals that the court did not hold a hearing or otherwise conduct any inquiry on which to base its determination of the monthly payment prior to issuing the Provisional Order. Indeed, the court granted the Bank’s motion before the Yeagers responded to it. The statute expressly provides that, in issuing a provisional order under subsection (b), “[t]he amount of the monthly payment . . . shall be determined by the court, which may base its determination on the debtor’s ability to pay” and that the amount of the monthly payment “may not exceed the debtor’s monthly obligation under the mortgage at the time the action is filed.” While the statute does not expressly require a hearing, it is implicit that the court have the necessary information on which to base its determination, including the debtor’s current financial information. The record contains no evidence of the Yeagers’ current financial situation, such as earnings from any employment, income from other sources, or other assets. The Indiana legislature enacted Indiana Code §§ 32-30-10.5 to “avoid unnecessary foreclosures” and to facilitate “the modification of residential mortgages in appropriate circumstances.” Nationstar Mortg., LLC v. Curatolo, 990 N.E.2d 491, 493-94 (Ind. Ct. App. 2013) (citing Ind. Code § 32- 30-10.5-1(b)). Under these circumstances, we conclude that the trial court abused its discretion when it failed to hold a hearing or to otherwise obtain information to determine the amount of the Yeagers’ provisional monthly payment.
Conclusion. For the foregoing reasons we reverse and remand for further proceedings consistent with this decision. Reversed and remanded.
Robb, J., concurs. Mathias, J., dissents with opinion [whichbegins, on p. 8] I respectfully dissent from the majority’s conclusion that the trial court abused its discretion by ruling on the Bank’s motion without a hearing. * * *
Here, the trial court determined that the monthly payment should be equal to the monthly mortgage obligation. This was within the trial court’s discretion under the statute, and I see no reason to remand for a hearing to require the trial court to consider something, i.e., the debtor’s ability to pay, which the controlling statute does not require the trial court to consider. Although it might be a better policy to require the trial court to consider the debtor’s ability to pay, the statute does not require this, and I do not believe we are at liberty to engraft such a requirement onto the clear language of the statute.
In Charles Sweeney v. David C. Long, President Pro Tempore, Indiana General Assembly, et al. (mem. dec.), a 3-page opinion on a petition for rehearing, Sr. Judge Friedlander concludes:
A § 1983 claim need only allege that a person has deprived the claimant of a federal right while that person was acting under color of state or territorial law. Thornton v. State, 43 N.E.3d 585 (Ind. 2015). Sweeney has not met even this low bar as to Senator Long, alleging only that the Indiana General Assembly has failed to act or respond to his requests that Indiana Code section 35-33-10-5 be repealed. Sweeney has not identified how Senator Long has deprived Sweeney of a federal right while acting in his official capacity.NFP criminal decisions today (3):
Courts - More on: Many in limbo because a federal district judge in Texas ruled to halt an overtime rule
The Obama administration’s new overtime rule is held up in federal court, but that hasn't stopped some Indiana employers from instituting changes to comply with the law.
If fully implemented, the rule—which raised the pay threshold for salaried workers to be exempt from overtime pay—would have affected about 87,000 Indiana workers and 4.2 million workers nationwide. * * *
A federal judge in Texas on Nov. 22 to temporarily suspended implementation of the rule, which was to go into effect Dec. 1. Indiana was one of 21 states that sued the U.S. Department of Labor in September over the rule.
Because of the short turnaround time, Indianapolis compensation adviser Julie Bingham said, many employers had already instituted or communicated salary changes to their employees.
“This is truly a unique situation,” said Bingham of FirstPerson Advisors. “Everyone’s scrambling. My sense is that many employers here will likely just let that be the new reality and hold to those increases.”
Wal-Mart, for example, raised entry-level managers' starting salaries from $45,000 to $48,500 in September to stay above the threshold for paying overtime, and has said that it plans to stick with the raises.
The state of Indiana—itself one of the largest employers in the state—implemented its compliance plan on Nov. 20, according to the Indiana State Personnel Department.
That means 69 state employees received salary increases totaling about $140,000 per year.
“The small number of employees that received salary adjustments [will] retain those new amounts,” spokeswoman Ashley Hungate told IBJ. State employees who would have become eligible for overtime under the new rules will remain exempt from overtime.
Ivy Tech Community College had decided to implement its plan “very close” to last Thursday’s effective date, so some people’s salaries were raised, said spokesman Jeff Fanter.
Other changes will go into effect if the rule stands up in court.
“Preparations are in place for a future effective date should the injunction be overturned,” Fanter told IBJ.
But Purdue University decided not to move forward. About 600 Purdue employees have been notified that their pending salary increases have been put on hold, while about 600 others were told they would remain salaried employees ineligible for overtime.
Bingham said her firm is not recommending that employers take back increases they have already communicated to workers.
Environment - North Carolina Gov. McCrory finally concedes defeat
Recall these stories from 2014:
Environment - "Coal Ash Spill Shows How a State Watchdog Was Defanged"A quote from the NYT story at the time:
Updating this ILB post from Feb. 26th on the Duke coal ash spill in North Carolina, here are some quotes from the beginning of a lengthy story just posted online by Trip Gabriel of the NY Times:RALEIGH, N.C.
Posted in The Indiana Law Blog on February 28, 2014 03:26 PM
While many have been focusing on the same-sex marriage issues, major environmental disasters have been happening in two eastern states known for their pushback against government regulation. The states are West Virginia, home of mountain top mining, and North Carolina,...
Posted in The Indiana Law Blog on February 26, 2014 02:16 PM
The episode is a huge embarrassment for [Governor] McCrory, who worked at Duke Energy for 28 years and is a former mayor of Charlotte, where the company is based. And it has become yet another point of contention in North Carolina, where Republicans who took control of the General Assembly in 2011 and the governor’s mansion last year have passed sweeping laws in line with conservative principles. They have affected voting rights and unemployment benefits, as well as what Republicans called “job-killing” environmental regulations, which have received less notice.Today James Hohmann on the Washington Post's Daily 202 writes that "bathroom bill backlash cost North Carolina’s Republican governor his job" but I suspect the coal ash spill entered into it:
Twenty-seven days after the election, after a recount failed to shift the outcome, North Carolina Republican Gov. Pat McCrory finally conceded yesterday to his Democratic challenger. He is the first governor to ever lose reelection in the Tar Heel State. * * *
In a race so close, one can always claim that small factors were determinative at the margins. Some were mad about the elimination of a tax credit that encouraged movie production in the Wilmington area, for example, and a segment of commuters was upset about a toll project on Interstate 77. But a close review of the election returns, combined with voter interviews, makes clear that McCrory’s reluctant embrace this spring of House Bill 2 – known as “the bathroom bill” – cost him his job more than anything else.
Ind. Decisions - "Indiana courts struggle to say when child discipline becomes a crime"
From the definitely worth-reading story:
INDIANAPOLIS — Hoosier parents who discipline their children using spanking, whipping or beating generally are immune from criminal sanctions for battery — unless the punishment goes too far.
Where is the line? No one really seems to know.
The Indiana Court of Appeals last week affirmed an Indianapolis man's misdemeanor conviction for battery causing bodily injury after he struck his 14-year-old daughter with a belt 14 times on her buttocks, thighs, back and arms.
According to court records, Sauntio Carter resorted to corporal punishment after he caught the girl posting sexually explicit images online, and his prior discipline, including taking the girl's phone away and making her clean the house, did not change her behavior.
State officials got involved when the girl told her school guidance counselor the day after the punishment that her arm was hurting.
An investigation by the Department of Child Services eventually led to Carter's conviction.
Appeals Judge Patricia Riley, a Rensselaer native, noted that the Indiana Supreme Court has set up a complicated, six-point balancing test to determine whether a parental punishment is sufficiently reasonable to be exempt from criminal charges.
Under that standard, the appellate court ruled the trial judge in this case properly weighed the evidence and determined Carter exceeded his parental authority and committed a crime.
But Riley said her review of similar cases found there is a "lack of clear guidance for parents to be able to distinguish between reasonable discipline and battery."
For example, the Indiana Supreme Court in 2008 concluded in a 4-1 ruling written by Justice Robert Rucker, a Gary native, that an Indianapolis mother was justified in whipping her 11-year-old son up to seven times with a belt or extension cord on his buttocks, arms and thighs. [Willis v. State]
But in 2015, the Court of Appeals upheld the misdemeanor battery conviction of an Indianapolis mother who struck her 13-year-old daughter with a belt 10 to 20 times on her arms, shoulders and legs. [Smith v. State, also by J. Riley]
Appeals Judge Terry Crone, of South Bend, wrote in a concurring opinion that no area of the law "is so fraught with subjectivity," and wondered if Carter had doled out 13 strikes with a belt it might have been deemed reasonable. Or maybe 15 strikes with less bruising?
"Everyone agrees that a line needs to be drawn, but current case law offers little guidance as to where that line is," Crone said.
He admitted part of the problem is that attitudes toward corporal punishment vary widely among Indiana residents, especially between generations and individuals from different cultures, though he said that should not preclude setting a definitive standard.
"If the purpose of the criminal law is to put a person on notice of what conduct is proscribed and what is permitted, then how can one's guilt or innocence depend upon how someone else disciplines his or her children when there is no consensus about what is appropriate?"
Ultimately, Crone acknowledged that Indiana courts simply will have to continue struggling along until either the General Assembly adopts clear guidelines for parental discipline or the Supreme Court fashions a more workable test.
Monday, December 05, 2016
Ind. Gov't. - Are text messages subject to the Public Records Act?
In a 3-page opinion dated Nov. 23, 2016, Luke Britt, the Indiana Public Access Counselor, addresses an informal inquiry posed by the City of South Bend Legal Department. Some quotes:
You seek a determination as to whether text messages sent by public employees are subject to the APRA and any accompanying retention considerations. You ask whether there is a distinction between messages sent by city-owned phones versus personal cell phones and whether they are both public business messages and personal messages which should be retained. * * *
[T]he very definition of public record leaves no doubt text messages are indeed public business records * * *
The Indiana Archives and Records Administration (IARA) has confirmed there is no specific retention schedule published by the Oversight Committee on Public Records, however, text messages could ostensibly fall into the “general files” category, which carries with it a three-year retention cycle. General files are defined as “Office records that are not related to policy implementation. This series includes correspondence, memos, and routine staff files”. In any case, text messages are not statutorily excepted from disclosure.
Complicating the issue is there is no question many public employees at the state and local level use both government issued and personal cell phones to compose text messages. When a public official is conducting public business, he is acting on behalf of the public agency as an agent of that entity, even if he does so on a personal device on personal time. It is the content of the message which is the critical element. * * *
In my opinion, content is key in determining whether to retain text messages. While most are likely fleeting and transitory, they can certainly document conversations relating to substantive policy and business.
“Transitory” does not have a definition in Indiana Code, however, it is known generally as personal records, unsolicited advertising or spam, carbon copies from mass emails such as a listserv, and duplicative non-records used for reference or research. * * *
The practical problem with retention is that there is often no central server where text messages are stored. Governmental units provide smartphones to their employees through outsourced providers or employees use personal devices. Unlike emails, local government servers do not capture the messages. While they are most likely akin to instant messages and mostly a substitute for brief face-to-face conversations, they are documented records of actions of public employees. The practice of retaining those messages would likely be costly and time-consuming; therefore, my recommendation is each agency develop and implement a policy so that employees do not potentially run afoul of APRA considerations.
Best practice would dictate each employee keep track of his or her own substantive public business messages and retain them on their own respective devices – personal or government issued. This shows good faith and stewardship of government-related information. As for requests for text messages, I would suggest the standard of reasonable particularity for emails be maintained as well: a named sender, a named recipient, a finite subject matter and a six-month-or-less timeframe. Recognizing search capabilities for text messages would be tedious and less robust than an email query, the more specificity the better when it comes to requests.
Ind. Decisions - 7th Circuit decides one Indiana case today; student athletes are not employees
In Gillian Berger v. NCAA (SD Ind., Lawrence), a 13-page opinion with a concurring opinion, Judge Kanne writes:
Former student athletes at the University of Pennsylvania (“Penn”) sued Penn, the National Collegiate Athletic Association (“NCAA”), and more than 120 other NCAA Division I universities and colleges alleging that student athletes are employees who are entitled to a minimum wage under the Fair Labor Standards Act (“FLSA”). The district court disagreed. We agree with the district court and hold that student athletes are not employees and are not covered by the FLSA. * * *
HAMILTON, Circuit Judge, concurring. I join Judge Kanne’s opinion for the court but wish to add a note of caution. The plaintiffs in this case were students who participated in track and field at the University of Pennsylvania. Like other Ivy League schools, Penn does not offer athletic scholarships. Also, as far as I know, track and field is not a “revenue” sport at Penn or any other school. * * *
I am less confident, however, that our reasoning should extend to students who receive athletic scholarships to participate in so-called revenue sports like Division I men’s basketball and FBS football. In those sports, economic reality and the tradition of amateurism may not point in the same direction. Those sports involve billions of dollars of revenue for colleges and universities. Athletic scholarships are limited to the cost of attending school. With economic reality as our guide, as I believe it should be, there may be room for further debate, perhaps with a developed factual record rather than bare pleadings, for cases addressing employment status for a variety of purposes.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 4 NFP memorandum decision(s))
For publication opinions today (1):
In Andre Anderson v. State of Indiana , a 9-page opinion, Judge May writes:
Andre Anderson appeals the admission at trial of a handgun found pursuant to a search of his car following his arrest. We reverse. * * *NFP civil decisions today (1):
[Search Incident to Lawful Arrest] As the U.S. Supreme Court has not spoken on this issue since Gant, we are constrained to hold in accordance therewith that the search of Anderson’s jacket incident to his arrest was unconstitutional because the police unlawfully entered the passenger compartment of Anderson’s car to access the jacket. See Gant, 556 U.S. at 335. * * *
[Inventory Search] While the police department has a procedure in place to tow vehicles, nothing produced at trial demonstrates Officer Heiny followed that procedure. This search, therefore, does not fall within the inventory search exception because Officer Heiny did not follow procedures set out by the Indianapolis Metropolitan Police Policy. See Friend v. State, 858 N.E.2d 646, 652 (Ind. Ct. App. 2006) (to comply with reasonableness standards, an inventory search must comply with “standard police procedures”).
[Conclusion] The search of Anderson’s jacket was not lawful as a search incident to arrest or an inventory search; thus, the trial court abused its discretion when it admitted the handgun into evidence. Accordingly, we reverse Anderson’s conviction of Level 5 felony carrying a handgun without a license with a prior conviction. Reversed.
NFP criminal decisions today (3):
Ind. Decisions - Transfer list for week ending December 2, 2016
Here is the Clerk's transfer list for the week ending Friday, April 15, 2016. It is two pages (and 26 cases) long.
Two transfers were granted last week:
- Termination: V.G., et al. v. Indiana Department of
Child Services - this was a Sept. 15, 2016 Court of Appeals opinion.
- Eduardo Cruz-Salazar v. State of Indiana - transfer was granted, with opinion, on Nov. 29th. See the ILB summary here.
- There was one case last week where transfer was denied by a 3-2 vote: Freddie L. Webb v. Thomas A. Yeager: Transfer Denied - All
Justices concur, except Rush, C.J., and David, J., who vote to grant the petition to transfer. This is a March 9, 2016 COA opinion.
- There was one case last week where transfer was denied by a 3-2 vote with two justices recusing: Schuchman/Samberg Investments, Inc. v. Hoosier
Penn Oil Co., Inc., et al.: Transfer Denied - All
Justices concur, except for
Massa, J. and Slaughter, J.,
who did not participate in
the decision of this matter. This is an Aug. 4, 2016 COA opinion. See commentary here.
- There was one case, Termination: A.C. v. Indiana Department of Child Services, et al., where transfer was denied by a 3-2 vote, with the two justices in dissent writing a separate opinion. The ILB posted on this rare written dissent on Friday.
Ind. Gov't. - "How the Pokagon Band went from a small tribe to a business powerhouse" [Updated]
Updating a long list of earlier ILB posts* referencing the Pokagon Band of Potawatomi Indians, the South Bend Tribune had two stories this weekend by Kevin Allen:
- "How the Pokagon Band went from a small tribe to a business powerhouse: Pokagons drive jobs, development beyond casinos," is a long story focused on economic issues. A sample:
Today, the tribe’s land holdings cover 7,000 acres in northern Indiana and southwest Michigan.
Gaming has been the main source of revenue behind the growth, but Pokagon leaders are using that money to diversify into different businesses as well as invest in housing, health and education programs for the tribe’s citizens. They have built 66 homes in a tribal village in Dowagiac and opened the first phase of a 74-unit village in Hartford earlier this year.
“It’s just like the Indiana Lottery uses the lottery system to fund some of their programs in the state. That’s what gaming is to the tribe — it’s a catalyst to fund our government services,” Warren said.
“A lot of it has to do with health, the loss of our language and culture, loss of a land base to exercise our sovereignty as a nation,” he said. “And to develop economically so we could create jobs.”
The tribe opened Four Winds Casino near New Buffalo in 2007. Since then, the Pokagons have opened two more casinos, in Dowagiac and Hartford.
While tribal casinos aren’t required to disclose financial information, the Pokagons release slot machine figures as part of a revenue-sharing agreement with the state of Michigan. Those numbers offer a peek at the profitability of the tribe’s gaming operations. The slot machines alone at the tribe’s Michigan casinos generate an average of $320 million a year in revenue, according to data from the state Gaming Control Board.
The Pokagons have branched into other ventures as well. They formed a diversified holding company named Mno-Bmadsen in 2012 with the help of a consultant from the Harvard Project on American Indian Development.
Mno-Bmadsen — which means “walking the good path” in the Potawatomi language — now includes six companies that were started or acquired, with more than 250 employees and annual revenues in excess of $60 million.
Those companies provide balance to the Pokagons’ gaming operations, and they also provide different career pathways for the tribe’s members. The holdings span a variety of industries, from plastics engineering and tooling to architecture, construction and mechanical contracting.
They’re also geographically diversified, with a presence in the Chicago, Indianapolis and Kalamazoo areas, as well as the Michiana region around South Bend.
And Pokagon leaders want to continue expanding their holdings by starting new companies and buying existing ones.
The strategy so far has been to invest in industries that are complementary.
For example, the construction, engineering and architecture firms can work together to develop the tribe’s buildings, as well as commercial and government projects.
- " Pokagons have history of determination, survival: Nearly forced off land, Pokagons set stage for comeback," gives a brief history of the Pokagon Band.
[Updated] A new, long story this morning by the SBT's reporter Allen, headed "Pokagon plan ups pressure on casinos: The tribe's South Bend site may challenge existing gaming operations." It begins:
The Pokagon Band of Potawatomi Indians’ entrance into the casino business and its expansions in that industry have all been in Michigan — a state where tribes own more than 20 casinos.
But the Pokagons’ next step in expanding its gaming operations is in Indiana — which doesn’t have any tribe-owned casinos but relies on state-regulated casinos as a significant source of tax revenue.
The Pokagons’ plan to build a large casino as part of a tribal village with housing and health facilities on South Bend’s southwest side will remake that corner of the city. It also could have wide-ranging impacts on other casinos in Indiana.
Ind. Courts - Elimination of Hammond City Court would not be a radical idea
Supplementing this ILB post from Dec. 2nd, both the NWI Times and the Gary Post Tribune have stories this morning on the Hammond City Court.
"Hammond mayor seeks end to City Court " heads Ed Bierschenk's long story in the NWI Times. Some quotes:
HAMMOND — Mayor Thomas M. McDermott Jr. wants to see the City Court slowly put out of business over the next few years, which he contends will save Hammond as much as $1.5 million a year.Craig Lyons and Michelle L. Quinn have a story in the Gary Post-Tribune. A sample:
McDermott's plan involves having city police begin to file cases with the county courts next month and by Jan. 1, 2018, have all new city cases handled by the county rather than the city. An ordinance putting that plan into effect is being sponsored by Councilman Dave Woerpel, D-5th, and will be discussed at the City Council meetings in December, with a final vote scheduled for January.
McDermott estimated that probably about 50 percent of the court's business comes from tickets written by Hammond police.
He said there is probably a 75 percent chance that some criminal defendants may have to go to Crown Point rather than to the Hammond branch of the Lake Superior Court on Russell Street to have their cases heard. He said he has spoken to the county court about trying to have the civil cases and infractions, such as jaywalking and speeding, heard at the Hammond courthouse.
By July 2017, he wants all city ordinance violations handled through some type of ordinance, or code, court headed up by an attorney, which he said may only require one additional staff member.
McDermott admitted he dropped the announcement suddenly on his weekly radio show and tempered his remarks afterward, calling the move "good government" modeled after one of his idols, former Indiana Gov. Joseph Kernan.ILB: The abolition of city and town courts has long been an objective of the Indiana courts. The publication, "A New Way Forward," is the Indiana Judicial Conference's strategic plan to reform the courts, and includes abolishing city courts. The ILB has several posts on this, including this one from Nov. 5, 2010.
"This is not a political move; the court has been a luxury," McDermott said. "Is the timing suspicious with Gov. Pence appointing a St. John resident with no experience to the court? Yes. But if the council passes this, it's one of the things listed in the Kernan-Shepard report (from the Indiana Commission of Local Government Reform). This is a good government move and will save the city $1.5 million per year." * * *
Since the 2017 budget already allots for all court and clerk positions, any phasing out would start in earnest in 2018, McDermott said. As that happens, the city will do its best to place court and clerk employees facing job elimination — specifically, those who are Hammond residents, McDermott said in his segment — in other city positions as they come open.
As for Jorgensen, she would continue to receive her salary through Dec. 1, 2019, regardless of whether there are court cases, the mayor said.
"There will be no election in 2019 because there will no longer be a court," McDermott said. "This isn't a decision to eliminate the court for three years and then bring it back. Amy will be the last City Court judge in the city's history."
IC 33-35 deals with City and Town Courts. IC 33-35-1-1 deals with their establishment and abolition.
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 12/5/16):
Thursday, December 8
- 9:00 AM - Marcus Zanders v. State of Indiana (15S01-1611-CR-00571) A Dearborn County jury convicted Marcus Zanders of robbery and unlawful possession of a firearm. A majority of the Court of Appeals reversed his convictions, concluding the warrantless seizure of historical location data compiled by Zanders’ cellular network provider violated his Fourth Amendment rights. Zanders v. State, 58 N.E.3d 254 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was this was an Aug. 4, 2016, 2-1 COA opinion (3rd case). See news coverage here ("Police must get warrant for cell phone location data") and here ("Ind. Court Says Warrant Needed to Get Cell Tower Data").
Next week's oral arguments before the Supreme Court (week of 12/12/16):
Thursday, December 15
- 9:00 AM - Thomas Pinner v. State of Indiana (49S02-1611-CR-00610) The Marion Superior Court denied Thomas Pinner’s motion to suppress evidence. On interlocutory appeal, a majority of the Court of Appeals reversed, holding police made an investigatory stop for which they lacked reasonable suspicion in violation of the Fourth Amendment. Pinner v. State, 59 N.E.3d 275 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 2-1 Aug. 24, 2016 COA opinion (4th case), where the majority wrote:
As the officers did not have reasonable suspicion to stop Pinner and this was not a consensual encounter, the trial court abused its discretion when it denied his motion to suppress. As such, we reverse.
- 9:45 AM - Consumer Attorney Services v. State of Indiana (49A05-1504-PL-00274) The State filed suit against an out-of-state company and its principal member, alleging violations of four consumer protection statutes. The defendants sought summary judgment on grounds they are exempt from liability under the statutes. The trial court denied the defendants’ motion. On interlocutory appeal, the Court of Appeals affirmed in part and reversed in part, holding the company was exempt from liability on all but one of the State’s claims but that the company’s principal member was not personally exempt from liability. Consumer Attorney Services v. State, 53 N.E.3d 599 (Ind. Ct. App. 2016), trans. pending. The State has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was this was a May 23, 2016, COA opinion (3rd case).
This week's oral arguments before the Court of Appeals (week of 12/5/16):
Tuesday, December 6
- 1:00 PM - Michael Diaz v. State (71A03-1603-CR-629) Appellant-Defendant Michael Diaz was convicted of Level 4 felony burglary. Diaz challenges his conviction on appeal, arguing that the evidence is insufficient to sustain his conviction. In raising this argument, Diaz asserts that the evidence is insufficient to prove beyond a reasonable doubt that he broke and entered the dwelling of another with the intent to commit a felony. For its part, Appellee-Plaintiff the State of Indiana argues that the evidence is sufficient to sustain Diaz’s conviction for burglary. The Scheduled Panel Members are: Judges Baker, Robb and Bradford. [Where: Fountain Central High School, 750 US 136, Veedersburg, IN]
- 1:00 PM - Rachel Neal v. IAB Financial Bank (02A03-1604-CT-01002) Rachel Neal was injured in a collision with a car driven by Gabriel Biddle. Before the collision employees of IAB Financial Bank helped Biddle, who they suspected was intoxicated, change a flat tire. Neal argued the bank gratuitously assumed a duty toward her when it helped an intoxicated driver return to the streets. The trial court entered summary judgment for the Bank on the ground it had no duty. The Scheduled Panel Members are: Judges May, Crone and Altice. [Where: Allen County Courthouse, Fort Wayne, IN]
- 1:00 PM - Dennis Garner v. Gregory S. Kempf and Clerk of Vanderburgh County (Not Provided) Garner was awarded a civil judgment against Kempf in 2013. In 2015, Kempf was arrested on an unrelated criminal matter and a $5,000 bond was posted on his behalf. Garner filed a motion for proceedings supplemental seeking to attach the bond proceeds and served the Vanderburgh County Clerk with notice, along with a letter informing the Clerk that a judicial lien attached as of the date the Clerk received notice such that the Clerk could be held liable if it released the funds to anyone else. Neither Garner nor the Clerk did anything to notify the criminal court of Garner’s claim to the bond proceeds, and the criminal court subsequently ordered the funds released to Kempf’s criminal defense attorney pursuant to Kempf’s request. The Clerk complied with the criminal court’s order, and at a subsequent hearing in the civil court on his motion for proceedings supplemental, Garner argued that judgment should be entered against the Clerk in the amount of $5,000 for its failure to honor his lien. The trial court rejected this argument, reasoning that it was Garner’s duty to notify the criminal court of his claim to the bond proceeds and that he had failed to do so. Garner now appeals.
The Scheduled Panel Members are: Judges Bradford, Pyle and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]
- 2:30 PM - Mario Deon Watkins v. State of Indiana (Not Provided) Mario Deon Watkins appeals his convictions for two counts of possession of a controlled substance as class A misdemeanors, possession of cocaine as a level 6 felony, possession of marijuana as a class B misdemeanor, and maintaining a common nuisance as a level 6 felony. Watkins argues that the search that led to the discovery of evidence violated the Fourth Amendment to the United States Constitution because the underlying search warrant lacked probable cause. He also contends that the trial court abused its discretion in admitting evidence discovered as a result of the search because the execution of the warrant, which included the use of a flash bang device in a room where a child was present, was unreasonable under the Indiana Constitution. The Scheduled Panel Members are: Judges Baker, May and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.Past Court of Appeals oral arguments which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Friday, December 02, 2016
Ind. Courts - "Workplace Bias Against Gays Could Be Illegal, 7th Cir. Judges Hint"
Discrimination based on sexual orientation might be prohibited by federal law, several Seventh Circuit judges suggested, raising hopes among gay rights advocates that the court is poised to fill a gap in the nation’s anti-bias laws.
Six of the 11 judges of the U.S. Court of Appeals for the Seventh Circuit questioned an Indiana employer’s assertion that Title VII of the 1964 Civil Rights Act offers no protection to a lesbian employee who said she was discriminated against because of her sexual orientation.
The judges, hearing oral arguments Nov. 30, expressed frustration with the employer’s strict interpretation of the plain language of the statute.
A critical question before the court is whether Title VII’s prohibition against discrimination on the basis of sex includes discrimination based on sexual orientation.
Title VII says nothing about protections for individuals based on sexual orientation, and Congress has declined to add sexual orientation as a protected class under the statute, John Maley, the attorney for the employer, Ivy Tech Community College, told the court.
But the panel peppered Maley with questions and viewpoints asserting a more expansive understanding of sex in the context of employment discrimination. The judges also pointed to the court’s authority to broaden the statute to adapt to changing social conditions.
“Constantly, judges are reinterpreting statutes in ways that are not consistent with the actual thinking of the people who enacted the statute,” Judge Richard Posner said. “Why isn’t this a perfect case for that?”
Ind. Courts - Yet more on "Special judge appointed to Hammond City Court "
Updating this ILB post from Nov. 23rd, which quoted reports that Hammond Mayor Tom McDermott Jr. was unhappy with Gov. Pence's appointment to fill the Hammond City Court judge vacancy, the NWI Gazette has a post today from Ken Davidson that begins:
In his weekly radio show [today, Dec. 2], Hammond Mayor Thomas McDermott, Jr. announced that he has asked the Hammond City Council to begin “systematically and slowly closing down our city court over time.” McDermott stated that closing down the Court would be a three step process that would take up to three years. The first step would be accomplished as soon as January 1, 2017 according to the Mayor. “I will order the Hammond Police Department to stop filing all criminal cases in Hammond City Court effective January 1, 2017” Mayor McDermott announced. Attorney Kevin Smith explained that Hammond City Courts hear primarily three types of cases “the city and town courts around Lake County hear usually ordinance violations, which are like if you don’t cut your grass, don’t have your dog tags, then they have infractions which are like your speeding tickets, traffic tickets, and then they hear criminal misdemeanor cases which carry up to one year in jail that is like theft, DUI . . . ” McDermott explained that Hammond residents who are charged with a crime “may be inconvenienced.” “If you are charged with a crime, you may have to go to Crown Point. I don’t care, don’t get charged with a crime” the Mayor stated.
In 2019 we are predicting that all cases will be out of Hammond City Court by that time and Judge Jurgensen will get paid for nothing. McDermott stated that he hoped all Court and Clerk employees who live in Hammond and may be displaced by the plan would be absorbed into other City jobs.
The Mayor stated that the plan has been in the works for 8 years. “The court continuously loses money” the Mayor stated. “Clerk Golec and I have been talking about this and he has already downsized his staff” the Mayor explained.
Some of the cases, particularly ordinance violations and civil cases, could be absorbed by the Lake Superior Court in Hammond. The Lake Superior Court is located at 232 Russell Street, just steps from the proposed new City Hall and the Hammond Police Station. One area of concern that was not mentioned by the Mayor or Kevin Smith is evictions. The Hammond City Court handles a large number of eviction cases for Hammond residents as well as for tenants in neighboring communities. Many of those cases will now be pushed off to Lake Superior Court in Hammond or Crown Point.
Ind. Decisions - 7th Circuit decides one Indiana criminal case today
In USA v. Juan Briseno (ND Ind., Simon). a 17-page opinion, Judge Williams writes:
Juan Briseno was convicted of multiple racketeering crimes relating to his participation in a street gang. On appeal he seeks a new trial, arguing that dur ing closing arguments, the government improperly referenced evidence pertaining to a prior acquittal, impermissibly shifted the burden of proof to him, and vouched for gov ernment witnesses in an inappropriate fashion.
But Briseno failed to object at trial to any of these state‐ ments, and none was so egregious that the trial judge should have intervened. Although earlier in the trial the govern ment highlighted evidence relating to an attempted murder for which Briseno had been acquitted, that evidence was also relevant to several other distinct charges that were submit ted to the jury. And while the government did erroneously shift the burden of proof by suggesting that Briseno could be acquitted only if the jury concluded that the government’s witnesses had testified falsely, that error was made harmless by multiple curative instructions from the judge and by the significant evidence weighing in the government’s favor. Fi nally, the statements that Briseno argues constitute improper vouching are better viewed as permissible appeals to the ju rors’ common sense.
In addition, Briseno complains that the jury instruction on the RICO conspiracy charge was internally inconsistent and confusing, since it required the government to prove an agreement as to the commission of “at least two acts of rack eteering” but not “two or more specific acts.” We find no er ror in this instruction, as it mirrors our pattern jury instruc tion on the topic and comports with our case law. So we af‐ firm Briseno’s conviction. * * *
In addition, Briseno has failed to demonstrate cumulative error, since he has failed to identify any error that individu ally or in combination with others deprived him of a fair tri al. See United States v. Powell, 652 F.3d 702, 706 (7th Cir. 2011) (Cumulative error requires proof “(1) that multiple errors occurred at trial; and (2) those errors, in the context of the entire trial, were so severe as to have rendered his trial fun‐ damentally unfair.”); Alvarez v. Boyd, 225 F.3d 820, 825 (7th Cir. 2000) (“[C]ourts must be careful not to magnify the sig nificance of errors which had little importance in the trial setting.”). So Briseno has failed to show that he is entitled to a new trial.
Ind. Decisions - Rare written dissent filed in transfer denial of termination of parental rights case involving ADA
The Court of Appeals decided In the Termination of the Parent-Child Relationship of N.C. (Minor Child) and A.C. (Father) v. The Indiana Department of Child Services on June 21, 2016. Here is the ILB summary. The opinion concluded:
... Father waived the issue of whether the ADA applies in a termination of parental rights proceeding. Waiver notwithstanding, Father’s discrimination claim cannot serve as a basis to attack the trial court’s termination order.Last yesterday afternoon the Supreme Court filed an order in In the Termination of the Parent-Child Relationship of N.C. and A.C. v. IDCS, which it has just posted, stating that the Court denies a petition for transfer. The vote was 3-2. The order includes a rare, 3-page written dissent from denial of transfer:
Rush, C.J., and Massa and Slaughter, JJ., concur.
David, J., dissents with separate opinion in which Rucker, J., concurs.
I respectfully dissent from the denial of transfer in this case as I believe this Court should grant transfer and address the Americans with Disabilities Act (ADA) issue to provide further guidance and to expressly overrule part of the holding in Stone v. Daviess Cnty. Div. of Children and Family Srvs., 656 N.E.2d 824 (Ind. Ct. App. 1995). * * *
I would grant transfer and hold that a disabled parent may use non-compliance with the ADA as a defense to the termination of his or
her parental rights where DCS has provided discretionary services, but failed to provide reasonable accommodations to a disabled parent.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 5 NFP memorandum decision(s))
For publication opinions today (1):
In First American Title Insurance v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, in his official capacity, on behalf of the Indiana Department of Insurance, a 17-page opinion, Judge Barnes writes:
First American Title Insurance Company (“FATIC”) appeals the trial court’s dismissal of its complaint against Stephen Robertson, Insurance Commissioner of the State of Indiana (“Commissioner”), in his official capacity, on behalf of the Indiana Department of Insurance (“IDOI”). We affirm.NFP civil decisions today (1):
FATIC raises two issues, which we consolidate and restate as whether the trial court properly dismissed FATIC’s Writ of Prohibition and Action for Mandate, Request for Declaratory Relief, and Verified Amended Petition for Judicial Review against IDOI. * * *
There is no claim here that IDOI lacks jurisdiction or general authority to investigate claims like those presented here. Rather, the issue is whether the Commissioner’s order was timely. As in Johnson, this type of fact-sensitive issue should be resolved in the first instance by the administrative agency, not through a declaratory judgment action or action for prohibition and mandate. Further, we note that neither Twin Eagle nor Johnson addressed the specific issue presented here—whether res judicata prevented FATIC from filing a declaratory judgment action and action for prohibition and mandate after having received an unfavorable result through the first appeal process. FATIC had an administrative remedy here and was required to pursue that remedy. Outboard Boating Club of Evansville, Inc. v. Indiana State Dep’t of Health, 952 N.E.2d 340, 343 (Ind. Ct. App. 2011) (“[W]here an administrative remedy is available, filing a declaratory judgment action is not a suitable alternative.”). Although its remedy failed due to its failure to file the complete agency record, res judicata prevents FATIC from taking a second bite at the apple by filing the instant action. We conclude that the trial court properly granted IDOI’s motion to dismiss.
NFP criminal decisions today (4):
Ind. Decisions - ND Ind. rules on application of sex offender ordinance in Hartford City
In Valenti v. Hartford City Indiana, a 32-page ND Ind. opinion by Judge Springmann, the issue is a Hartford City sex offender ordinance. From the opinion:
The Plaintiff moved to Hartford City in 2014 with his wife and minor child. In 1993, the Plaintiff was convicted in California of a sex offense involving a child under the age of 14, and is therefore required to register as a sex offender under Indiana law. Shortly after he moved to Hartford City, a member of the police department informed the Plaintiff about the Ordinance.
The Plaintiff alleges that the Ordinance has caused him to significantly curtail his activities in Hartford City, including going to the library with his child, entering his child’s school, going to Hartford City parks, bowling with his family, attending church where there are separate youth services, joining the YMCA, having his child participate in YMCA activities, and voting at his designated polling place. The Plaintiff maintains that when he lived in California, he would frequently go to his child’s school to work with staff there because his child has learning disabilities, but that he is now unable to do so and his child has suffered because of this. Referring to the original definition, the Plaintiff asserts that he does not know what loiter means, nor does he know all the locations where it would be impermissible for him to loiter. He alleges that the restriction is burdensome, as he cannot wait in the parking lot of places where his child may go bowling or participate in or attend sporting events. In fact, the Plaintiff received a citation from the Hartford Police Department when he was a passenger in his brother’s car, which was parked at his brother’s house across the street from a school. He was waiting to be taken to pick up his own child from another school.
The Plaintiff asserts that the revised definition of loiter remains unclear and causes him uncertainty. He questions whether driving by a park three or four times in the course of running errands would be considered “circulating around a place.” He also complains that the definition does not depend on what he is doing, but on how others might perceive it. * * *
Having weighed the punitive and non-punitive nature of the seven factors as they apply to the Plaintiff and his circumstances, the Court finds that the effects of the Ordinance “are so punitive in nature as to constitute a criminal penalty.” Gonzalez, 980 N.E.2d at 317 (citing Wallace, 905 N.E.2d at 378). The Ordinance imposes substantial affirmative restraints that are historically considered punishment and triggered by a past criminal conviction, and does so in a manner that is excessive in relation to the Ordinance’s stated purpose. It violates the Indiana Constitution’s prohibition on ex post facto laws because it imposes burdens that have the effect of inflicting greater punishment on the Plaintiff than what could have been imposed in 1988 when he committed the crime. The Plaintiff is entitled to a judgment that applying the Ordinance to him violates Indiana’s ex post facto laws. * * *
In his Motion for Partial Summary Judgment, the Plaintiff requests that the Court “[p]ermanently enjoin Ordinance 2008-01.” (Mot. 2, ECF No. 34.) The specifics of that request are not clear. If the Plaintiff is asking that the Defendant be enjoined from enforcing the Ordinance against him because it would be an ex post facto punishment, the Court agrees. If the Plaintiff is asking that the Ordinance be permanently enjoined as to all individuals or all class members, the Court does not find a basis for that request. It is only the inclusion of the loitering prohibition that creates a due process violation. The remainder of the Ordinance has not been challenged, and remains intact and enforceable. Thus, to the extent the Plaintiff seeks to permanently enjoin all enforcement of the Ordinance against the class members, that request is denied.
For the reasons stated above, the Court GRANTS IN PART AND DENIES IN PART the Plaintiff’s Motion for Partial Summary Judgment [ECF No. 34], and DENIES the Defendant’s Cross-Motion for Summary Judgment [ECF No. 37]. Because Hartford City Ordinance 2008-01 violates Indiana Constitution Art. 1, § 24, as applied to the Plaintiff, the Defendant is enjoined from enforcing it against the Plaintiff. The Pre-Amendment Ordinance definition of loiter violated due process. By separate order, the Court will set a telephone status conference to set a trial to determine the Plaintiff’s individual damages. The amended definition of loiter also violates the Fourteenth Amendment, and the Defendant is enjoined from imposing fines for any violation of the loitering prohibition contained in Ordinance 2008-1.
The Court will enter a final judgment outlining the appropriate relief after resolution of the entire case.
Courts - "New court software is so awful it’s getting people wrongly arrested: Problematic Odyssey Case Manager software package is used nationwide"
That is the headline to a story today by Cyrus Farivar of ArsTechnica. The lengthy story begins:
OAKLAND, Calif.—Most pieces of software don’t have the power to get someone arrested—but Tyler Technologies’ Odyssey Case Manager does. This is the case management software that runs on the computers of hundreds and perhaps even thousands of court clerks and judges in county courthouses across the US. (Federal courts use an entirely different system.)ILB: But there is no mention of a software issue in the Marion County, Indiana complaint, only of a two-day delay in a jail release in December, 2014.
Typically, when a judge makes a ruling—for example, issuing or rescinding a warrant—those words said by a judge in court are entered into Odyssey. That information is then relied upon by law enforcement officers to coordinate arrests and releases and to issue court summons. (Most other courts, even if they don’t use Odyssey, use a similar software system from another vendor.)
But, just across the bay from San Francisco, Alameda County's deputy public defender, Jeff Chorney, says that since the county switched from a decades-old computer system to Odyssey in August, dozens of defendants have been wrongly arrested or jailed. Others have even been forced to register as sex offenders unnecessarily. “I understand that with every piece of technology, bugs have to be worked out,” he said, practically exasperated. “But we're not talking about whether people are getting their paychecks on time. We're talking about people being locked in cages, that's what jail is. It's taking a person and locking them in a cage.”
Odyssey is used not only in Alameda County and additionally in 25 of California’s 58 county courts, but also in counties nationwide, from Miami-Dade County, Florida, to Kane County, Illinois. Lawyers in at least three counties in as many states have reported problems nearly identical to Alameda's and have begun formal legal proceedings as a result. Earlier this month, an activist group in Shelby County, Tennessee, alleged similar issues in a recently filed federal civil rights lawsuit. According to the Memphis Daily News, Shelby County Commissioners discussed on Wednesday possible legal action against Tyler Technologies.
Due to the same glitches, inmates in Marion County, Indiana, sued the county sheriff nearly two years ago in federal court over a related issue—that case is still ongoing.
Were the Marion County criminal courts even using Odyssey in 2014? This ILB post from June 17, 2014, is headed "Marion County joins Odyssey Case Management System for criminal cases."
Thursday, December 01, 2016
Ind. Gov't. - "Protest of privatized, politicized pavilion draws 200 to hearing on alcohol in Dunes State Park"
Kevin Nevers' lengthy story in the Chesterton Tribune Wed. began:
Upwards of 200 people appeared at a public hearing on Tuesday to express, in the strongest possible terms, their opposition to alcohol service at a remodeled Pavilion and proposed banquet center at Indiana Dunes State Park."Hearing on alcohol in park turns contentious" is the heading to Joyce Russell's story in the NWI Times. A sample:
Over the course of the three-hour hearing 39 actually spoke, every one of them against alcohol service.
The hearing, held at Woodland Park in Portage, was convened by the Indiana Natural Resources Commission (NRC) specifically in connection with a proposed rule change in the Indiana Administrative Code (IAC). That change, as NRC representative Sandra Jensen explained it, would bring the rule currently governing alcohol service at Dunes State Park into compliance with the legislation enacted earlier this year which, on the one hand, authorizes the Department of Natural Resources (DNR) to apply to the Indiana Alcohol and Tobacco Commission (IATC) for three-way permits on behalf of its state parks; and, on the other, requires IATC to grant such permits.
Yet, as Jensen suggested bluntly--after six folks had already remonstrated--the very narrowness of the NRC’s interest in the matter rendered many, if not most, of people’s comments irrelevant to the issue.
Because, Jensen said, the current IAC rule already permits alcohol service “on the licensed premises of a pavilion” at Dunes State Park, pursuant to earlier legislation enacted in 2015. The proposed rule change, accordingly, would simply reflect the new statute, under which not Pavilion Partners LLC would be the three-way licensee but the DNR itself.
“We’re not here to talk about the permit but about the rule proposal,” Jensen said. So “what do we about” the new statute? someone asked from the audience. “I can’t answer that question,” Jensen replied. “It’s beyond me.”
So “what are we commenting on? What are the parameters of the meeting?” someone else asked. “I can’t offer anything with regard to that,” Jensen responded. “I understand and empathize. But I have absolutely nothing to offer in that respect.”
The upshot, however, as Jensen continued, is that the history of alcohol consumption at Dunes State Park, the potential dangers of alcohol near or on the beach, the events which prompted the enactment of the new legislation and the process by which it was enacted, and the politics and business ventures of Pavilion Partners principal Chuck Williams simply aren’t relevant to the decision to be made by the NRC: whether or not to adopt the proposed rule change.
Not only did the residents speak loud and clear about what a mistake they believed it would be to allow alcohol at the park, the hearing officers also got an earful from residents alleging improprieties between developers Pavilion Partners and state legislators.And in the Gary Post-Tribune, Amy Lavalley has a long story (here via the Ind.Econ.Digest) headed "Residents frustrated about alcohol at Indiana Dunes State Park pavilion." A quote:
"Pavilion Partners went down to Indianapolis and got this omnibus piece of crap," said Paul Mache, of Chesterton, referring to legislation passed this year allowing the Department of Natural Resources to apply for liquor licenses for nine state parks, including Indiana Dunes. The DNR applied for and received alcohol permits in August.
Residents pointed out that twice the local alcohol commission denied the partners, who are remodeling the pavilion and hope to construct a beachside banquet center with a liquor permit. When that decision was upheld at the state level, Julie Rosler, of Union Mills, said "a powerful local Republican" went to Indianapolis and used his influence to get the legislation passed.
"Everything about this project has been done behind the curtain," said Duane Davidson, adding residents have been fighting the proposed changes at the state park for 18 months, but seem not to be heard.
Both the plans for serving liquor at the pavilion and the banquet center have generated a wide swath of opposition from the grassroots group Dunes Action and others since the plans became public more than a year and a half ago.ILB: The ILB has many earlier posts on this topic.
The change in state law, which allowed the DNR to apply for liquor permits to the Indiana Alcohol and Tobacco Commission for its state parks without public comment, came after both the county and state liquor boards denied a permit for Pavilion Partners' plans at the pavilion.
"You are privatizing profit to Pavilion Partners and socializing risk to Indiana taxpayers," said Julia Roesler of Union Mills, adding that under the terms of the lease, "if Pavilion Partners can't sell alcohol, taxpayers have to pay them back for what they invested."
The process that handed a liquor license to the state park took away local control, said State Rep. Chuck Moseley, D-Portage, adding that even if he filed a bill "to make this go away," the bill would die because of the Republican supermajority in the legislature.
Courts - Many in limbo because a federal district judge in Texas ruled last week to halt an overtime rule that was supposed to take effect Dec. 1
The ILB had a post last Friday quoting a NYT story headed "Overtime Rule Is but the Latest Obama Initiative to End in Texas Court."
The ILB has seen little about the blocking of the overtime rule, and was pleased to see a long story yesterday by Suzanne Spencer, WSBT, headed "Delayed overtime rule puts 188,000 Michiana workers, businesses on hold." Some quotes from the good story:
Welch Packaging is one of dozens of companies around Indiana and Michigan attempting to navigate its way through a proposed overtime rule.The LA Times has a Q&A story today headed "A judge blocked Obama's expansion of overtime pay. What that means, and what comes next." A snippet:
The rule would have impacted those who make less than $47,476, who are salaried and work more than 40 hours per week.
It also called for an “automatic update” every three years to ensure the wage level was consistent with Department of Labor standards.
A federal judge in Texas issued an injunction, halting the rule, 10 days before the rule was set to take effect.
“It’s something that as a leadership team, we spent time talking about,” said Welch Packaging Director of Human Resources Matt Davis. “There was a cost to it already in just the planning and administrative preparation that went into it.”
Davis said the rule would have impacted 1-2% of their workforce, mostly mid-level managers. While the company did not go as far as making financial changes, they were in the planning stage of staggering shifts to keep a closer-eye on employees to ensure 40-hour work weeks.
“We’ve taken a ‘wait and see’ approach where we’re planning for the change to take effect, but not making any drastic changes in case something like the injunction were to happen,” said Davis.
Other companies did make changes.
“Most employers I’ve talked to are going forward with it,” said St. Joseph County Chamber of Commerce President Jeff Rea. “The court decision hasn’t necessarily affected them one way or another because they’ve already had those conversations with employees.”
Going “backwards,” Rea said, may put a strain on the relationship between employer and employee; particularly, he said, as managers may keep a closer-eye over employees work habits, schedule, or flexibility.
Businesses nationwide had spent the last several months preparing for the new rule. But the judge’s decision has left them and their employees in limbo. The Labor Department said it’s reviewing its legal options.And from Jonnelle Marte in today's Washington Post, a story headed "Millions of workers in limbo after rule expanding overtime pay eligibility is put on hold." A few quotes:
(Hourly paid employees generally are eligible for overtime pay regardless of how much they earn per year.)
What happens next? We asked Jared Ashworth, assistant professor of economics at Pepperdine University, to explain.
The Labor Department rule, which would have made overtime pay available to more than 4 million additional workers, was challenged in court by a number of business groups and a collection of states [ILB: 21 states, including the State of Indiana]. The judge ruled that the department exceeded its authority when it more than doubled the salary limit that determines which workers should be made eligible for overtime pay. * * *
The rule would have made overtime pay an option for full-time salaried employees earning up to $47,476 a year — substantially more than the current threshold of $23,660 a year. The rule hadn’t been updated in 12 years.
But business groups, states and other employers expressed concerns that the higher income threshold would hurt their bottom lines, disrupt their business models, or limit opportunities for employees. * * *
The Labor Department said it strongly disagreed with the court’s decision and is currently reviewing its legal options.
The timeline for when the court will reach a final decision depends on what the department does next, legal experts say. If the Labor Department challenges the injunction as expected, some consumer groups said they are worried that the rule advocated by President Obama may not survive under the next administration. One scenario is that the Labor Department under President-elect Donald Trump could decide to drop the case, putting an end to the rule, says Ross Eisenbrey, vice president for the Economic Policy Institute, a left-leaning think tank.
As a result, Eisenbrey said, the institute is researching options for becoming a party in the lawsuit so that it could continue the case even if the Labor Department drops out. “That shouldn’t be the end of the matter,” he said.
The last-minute delay of the rule, which was halted less than two weeks before it was supposed to go into effect, created confusion for some employers that have spent the past several months preparing for the regulation. Some companies offered raises to managers so that their salaries would be above the proposed threshold. Other workers were set to become eligible to be paid time-and-a-half on any time worked beyond 40 hours a week.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 2 NFP memorandum decision(s))
For publication opinions today (1):
In Corey Middleton v. State of Indiana , a 16-page opinion (including a separate "concur in result with opinion"), Judge Altice writes:
Corey Middleton appeals from the denial of his petition for post-conviction relief. He asserts that the post-conviction court erred in rejecting his claim of ineffective assistance of trial counsel. * * *NFP civil decisions today (1):
As noted previously, there was overwhelming evidence to support his convictions. Judgment affirmed.
Bradford, J., concurs.
Pyle, J., concurs in result with opinion. [that begins, on p. 14]
I concur with my colleagues holding, but I write separately because I believe Middleton’s counsel’s performance fell below current objective professional norms and also prejudiced Middleton. During voir dire, Middleton’s counsel properly explored the issue of race with prospective jurors. However, counsel referred to his absent client as a “Negro.” In a sterile environment, this word might not be any more offensive than the next. But, we do not live in a sterile environment. Words have power. Words convey explicit and implicit meanings they have acquired. While many dictionaries may still define the term “Negro” as “a person of black African origin or descent[,]” it is also cross referenced with the vile slur known euphemistically as “the N-word.” OXFORD ENGLISH DICTIONARY, http://www.oed.com (last visited November 21, 2016) [hereinafter OXFORD ENGLISH DICTIONARY]. * * *
Before evidence had even been introduced, potential jurors saw and heard Middleton’s attorney, the person who was supposed to be his advocate, refer to Middleton in a racially offensive manner. While there is no evidence that counsel intended harm to Middleton, the harm was nonetheless inflicted. Middleton was presented to potential jurors in a racially offensive manner. For these reasons, I believe counsel’s performance during voir dire was deficient and also prejudiced Middleton. Nonetheless, in order for us to reverse the trial courts denial of Middleton’s petition, we would have to believe that “but for counsel’s errors, the result of the proceeding would have been different.” Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010). In this case, the evidence against Middleton was considerable. As a result, I am not convinced that the result would have been different.
NFP criminal decisions today (1):
Ind. Law - "State Legislative Drafting Manuals and Statutory Interpretation"
That is the title to an interesting 65-page article in The Yale Law Journal, authored by Grace E. Hart. The abstract:
Although legislation has become a central feature of our legal system, relatively little is known about how statutes are drafted, particularly at the state level. This Note addresses this gap by surveying drafting manuals used by bill drafters in state legislatures. These manuals describe state legislatures’ bill drafting offices and outline conventions for statutory formatting, grammar, and style. These documents are valuable tools in statutory interpretation as information about drafting offices provides context for analyzing legislative history, and drafting conventions can illuminate statutory meaning. This Note offers normative justifications for using drafting manuals in statutory interpretation as well as principles to guide state courts in considering drafting manuals in their jurisprudence.The ILB has referred to Indiana's Bill Drafting Manuals in various posts over the years. For example:
- This Dec. 29, 2004 post pointed to the "Effective Dates" discussion in the Indiana General Assembly's 1999 bill drafting manual.
- This Feb. 6, 2006 ILB post discusses a court opinion that refers to the heading of a section of the Indiana Code; the ILB points to the LSA Bill Drafting Manual discussion of section headings.
- This Sept. 28, 2011 ILB post is headed "Use of 'may' and 'shall' ... with repect to the issue of what 'may not' means," and refers to the Indiana General Assembly's bill drafting manual.
- This Jan. 17, 2012 ILB post, headed "Are binding referendums constitutional in Indiana?," compares provisions in the then-current bill drating manual with the 1971 Draftsman's Manual (which I co-authored).
Ind. Courts - 7th Circuit, sitting en banc, hears argument re whether "whether Title VII of the 1964 Civil Rights Act extends to sexual orientation"
The question for the 7th Circuit Court of Appeals [sitting en banc] in Chicago on Wednesday was whether Title VII of the 1964 Civil Rights Act extends to sexual orientation.
The court heard oral arguments from former Ivy Tech Community College adjunct professor Kimberly Hively's legal defense team from Lambda Legal, the Equal Employment Opportunity Commission and legal representatives from the college.
Hively, from South Bend, sued Ivy Tech in 2014, saying it passed her over for a permanent position and refused to renew her contract as an adjunct professor after school administrators learned she is a lesbian.
Ivy Tech has consistently denied that Hively was denied promotion because of her sexual orientation.
Wednesday morning, judges posed questions to both parties. Addressing Ivy Tech's defense attorney John Maley of Barnes & Thornburg, Chief Judge Diane Wood noted: "It is a little odd — you (Ivy Tech) said we deplore sexual orientation discrimination, but we're going to do it anyway." Maley rejected the notion.
One judge questioned Hively's lawyer: "Are we placing too much power in the judiciary to amend the word 'sex' to include sexual orientation when we know this was not the initial intent of Congress? Congress has no affinity for altering the definition of sex." * * *
The 11-judge panel on Wednesday repeatedly compared the case at hand to the landmark Supreme Court case 1967 case Loving v. Virginia, which invalidated laws prohibiting interracial marriage.
Courts - "Trump's 21 potential court nominees are overwhelmingly white, male and from red states"
That is the headline and the lede to this long USA TODAY story this morning by Richard Wolf that contains brief looks at the potential nominees, including Diane Sykes of the 7th Circuit.
Wednesday, November 30, 2016
Ind. Courts - Still more on "7th Circuit can make civil rights history for gay and lesbian employees" [Updated]
Here is the direct link to today's en banc oral argument in Kimberly Hively v. Ivy Tech Community College. It is 55 minutes long. (The ILB earlier was confused by the 22-minute audio of the 3-judge panel oral argument).
All 9 active judges on the 7th Circuit participated, along with (as the rules provide) the two senior status judges who were on the original panel. This leaves only Senior Judge Manion as a non-participant. So the lineup today was: Wood, Bauer, Posner, Flaum, Easterbrook, Ripple, Kanne, Rovner, Williams, Sykes, and Hamilton.
In trying to distinguish the voices, be aware that the judges who didn't ask questions were Judges Flaum, Ripple, and Bauer (the latter two have senior status and were on the original panel).
The female questioners are Chief Judge Wood, Judges Williams, Sykes and Rovner (Rovner BTW was on the original panel and asked all the questions at that time).
The male judges' voices are Easterbrook, Posner, and Hamilton. (Update: And Kanne, sorry)
[Updated 12/6/16] Here is a key to identifying the speakers in the Hively en banc argument, courtesy of Equality Case Files.
Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 13 NFP memorandum decision(s))
For publication opinions today (4):
In Mark Vinup v. Joe's Construction, LLC and Joe Getz and Property-Owners Insurance Company v. Joe's Construction, LLC and Joe Getz, a 19-page opinion, Judge Kirsch writes:
After Mark Vinup (“Vinup”) was injured on the job while working for Joe’s Construction, LLC and Joe Getz (together, “Joe’s Construction”), Vinup filed a lawsuit against Joe’s Construction seeking damages for his personal injuries. The commercial general liability insurer for Joe’s Construction, PropertyOwners Insurance Company (“Property-Owners”), filed a declaratory judgment action, seeking a declaration that, pursuant to a policy exclusion, it had no duty to defend and no duty to pay any judgment that might be rendered against Joe’s Construction or Joe Getz (“Getz”). The trial court consolidated the declaratory judgment action with Vinup’s action, and, thereafter, Property-Owners and Joe’s Construction each filed a motion for summary judgment. The trial court granted both motions, and Vinup now appeals, raising several issues that we consolidate and restate as: Whether the trial court erred when it determined as a matter of law that Vinup was an employee of Joe’s Construction at the time he was injured. We affirm. * * *In Judi Simek, and Scott Everett v. Christopher Nolan d/b/a Lakeside Farm, LLC, and William P. McCall, III, an 11-page opinion, Judge Crone writes:
Property-Owners maintain that Vinup was not a “temporary worker” as that term is defined in the Policy. Property-Owners emphasizes that a “temporary worker,” as defined in the Policy is someone who is “furnished to the insured to substitute for a permanent employee or to meet seasonal or short-term workload conditions.” Id. at 112 (emphasis added). Vinup was neither “furnished” to Joe’s Construction by some other party nor was he substituting for a permanent employee. Therefore, Property-Owners asserts, Vinup did not qualify under the Policy’s definition of “temporary worker.” We agree. Vinup testified that Getz asked for his help with the Aberdeen Project, and Getz testified likewise, stating that he offered the work to Vinup. Id. at 154, 193. Under the plain language of the Policy, Vinup was not a “temporary worker,” and the trial court did not err when it granted Property-Owners’s motion for summary judgment.
Judi Simek brings an interlocutory appeal from the trial court’s denial of her motion to reconsider its previous denial of her motion to dismiss the claims filed against her by Christopher Nolan d/b/a Lakeside Farm, LLC, and William P. McCall, III (collectively “the Plaintiffs”). Specifically, Simek asserts that dismissal is warranted pursuant to Indiana Rule of Trial Procedure 12(B)(2) because the trial court lacks personal jurisdiction over her. We agree and therefore reverse and remand with instructions for the trial court to dismiss the Plaintiffs’ claims against Simek. * * *In Hannum Wagle & Cline Engineering, Inc. d/b/a HWC Engineering, Inc., Marlin A. Knowles, Jr., Jonathan A. Day, Tom Mobley, and David Lancet v. American Consulting, Inc., et al., a 41-page opinion (including a concurring opinion) involving "a lawsuit for, among other things, breach of contract" a non-compete agreement and a preliminary injunction. Judge Kirsch writes the majority opinion, affirming the trial court. Judge Baker's concurring opinion, which begins on p. 40:
Simek’s sole relationship with this litigation is the fact that she appears to have a current business arrangement with Everett regarding the ownership of Cinnamon Beach. There are no facts to indicate that she personally initiated, expected, or encouraged contacts with Indiana such that she could have reasonably foreseen being haled into court here. This case is a prime example of when a defendant cannot be haled into a jurisdiction solely as a result of the unilateral activity of another party and/or a third person. Simply put, Simek does not have a substantial connection to Indiana, and therefore she cannot be said to have purposely availed herself of the trial court’s jurisdiction.
In sum, Indiana lacks specific jurisdiction over Simek. Her alleged conduct, even when viewed in the light most favorable to the Plaintiffs, did not establish a substantial connection between herself and this State, and thus cannot support personal jurisdiction. Simek has established prima facie error in the trial court’s denial of her motion to reconsider her motion to dismiss for lack of personal jurisdiction. Consequently, we reverse and remand with instructions for the trial court to dismiss the Plaintiffs’ claims against Simek.
I am compelled to concur fully with the majority opinion, but I write separately to voice my serious concerns about the extreme breadth of clause two of the relevant provision in the Knowles Agreement. Specifically, Knowles may not “solicit or communicate with any such customers for the purpose of selling, providing, attempting to sell or provide, or assisting any person or entity in the sale or provision of, any Competing Products/Services[.]” HWC Appellant’s App. p. 135-37 (emphasis added). To tell a person who works in sales that he may not even communicate with past or potential clients is to take away his proverbial bread and butter. He may no longer schmooze. That is far too draconian to sit comfortably with me. And in this case, it goes a step farther, because the past and potential clients are all government employees, which takes it even farther into an overly restrictive realm.
We have largely moved as a society from an economy of goods to an economy of services. The disfavor with which this State views restrictive covenants should be heightened, in my view, where the purported irreparable harm cannot be quantified—which is almost always the case when it is the provision of services that is at the heart of a restrictive covenant. Under these circumstances, I believe only the narrowest of restrictive covenants should be enforceable, and I do not believe that clause two of the Knowles Agreement qualifies. With the current state of caselaw, however, I am compelled to concur fully with the majority opinion.
In Sauntio Carter v. State of Indiana, an 18-page opinion (including a concurring opinion), Judge Riley writes:
Carter claims that there is insufficient evidence to uphold his battery conviction. * * *NFP civil decisions today (3):
It is well established that “[a] parent has a fundamental liberty interest in maintaining a familial relationship with his or her child.” Willis v. State, 888 N.E.2d 177, 180 (Ind. 2008). Included within this fundamental liberty interest is “the right of parents ‘to direct the upbringing and education of children,’ including the use of reasonable or moderate physical force to control behavior.” Id. (internal citation omitted) (quoting Pierce v. Soc’y of Sisters, 268 U.S. 510, 534- 35 (1925)). However, the State also “has a powerful interest in preventing and deterring the mistreatment of children[,]” and “the potential for child abuse cannot be taken lightly.” Id. Thus, prosecutors and courts are left with the difficult task of determining “when parental use of physical force in disciplining children turns an otherwise law-abiding citizen into a criminal.” * * *
In order to convict a parent for battery where parental privilege is asserted, “the State must prove that either: (1) the force the parent used was unreasonable or (2) the parent’s belief that such force was necessary to control [his or] her child and prevent misconduct was unreasonable.” Id. (citing Restatement of the Law (Second) Torts, § 147 (1965)). Here, the State does not contest the reasonableness of Carter’s belief that the use of force was necessary. Rather, the State maintains that Carter exerted unreasonable force in disciplining M.C., such that the parental privilege is negated.
While there “are no bright-line rules” as to what is considered “proper and reasonable parental discipline of children[,]” the Indiana Supreme Court has adopted the view that “[a] parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his [or her] child as he [or she] reasonably believes to be necessary for [the child’s] proper control, training, or education.’” * * *
Ultimately, the trial court concluded that Carter’s use of force—i.e., at least fourteen strikes with a belt which resulted in significant bruising and lasting pain—exceeded reasonableness, and on appeal, we are mindful of the trial court’s role in weighing the evidence and assessing witness credibility to determine whether a parent’s actions were justified as reasonable parental discipline. See Smith, 34 N.E.3d at 255. Although we are troubled by the lack of clear guidance for parents to be able to distinguish between reasonable discipline and battery, it was the trial court’s duty to balance the Willis factors, and we decline to reweigh the evidence. Thus, we conclude that there is sufficient evidence to support Carter’s conviction for battery resulting in bodily injury. * * *
Robb, J. concurs
Crone, J. concurs with separate concurring opinion [that begins on p. 16]
As noted above, “prosecutors and courts are left with the difficult task of determining ‘when parental use of physical force in disciplining children turns an otherwise law-abiding citizen into a criminal.’” Slip op. at 6-7 (quoting Willis, 888 N.E.2d at 180). I write separately to suggest that our supreme court made that task much more difficult by importing the vague reasonableness standard of the Restatement of Torts into the criminal arena. * * *
That being said, courts must step in where legislatures decline to tread, so unless and until the General Assembly enacts clearer guidelines for parental discipline (or our supreme court adopts a more workable standard), trial judges and jurors must rely on their experience and judgment to determine when parents cross over the blurry line that separates lawful from unlawful conduct, and appellate courts must give those determinations significant deference. For that reason, I reluctantly concur in my colleagues’ affirmance of Carter’s battery conviction.
NFP criminal decisions today (10):
Ind. Courts - Update on the Commercial Courts project
On Sept. 27th of this year, the ILB reported:
MyCase.in.gov now has a separate option for "commercial courts." A search run this afternoon by the ILB disclosed that currently 34 cases have filed in the commercial courts around the state.Today, two months later, the ILB has run another search. The results:
A review shows, however, that of the 34 cases, 27 have been filed in Marion Superior Court, Civil Division 1. Of the remaining 7, 5 have been filed in Allen County and 2 in Elkhart County.
Chief Justice Rush pointed out today: "Indiana has statewide venue, you may file your case, any sort of civil case, and any county that you wish, as long as the other side does not file a motion for preferred venue, then the case can remain where it was filed. So, any case that you have can be filed before any of the six."
- Currently 49 cases have filed in the commercial courts around the state.
- Of the 49 cases, 39 have been filed in Marion Superior Court, Civil Division 1.
- Of the remaining 10, 7 have been filed in Allen County, 2 in Elkhart County, and 1 in Vanderburgh County.
Ind. Decisions - Judge dismisses City of Fort Wayne v. SW Allen Co. Fire District and Auditor
James Duffy reported today in the Fort Wayne Journal Gazette - some quotes:
The city of Fort Wayne will have to find another way to claim lost taxes after a judge Monday dismissed a suit filed in May against the Southwest Allen County Fire Protection District, based in Aboite Township, and county Auditor Tera Klutz.Read the story for more. Here is the 15-page opinion, dated Nov. 28, 2016.
Allen County Superior Court Judge Craig J. Bobay dismissed the suit, saying his court does not have jurisdiction over the case.
The lawsuit covered 1987 to 2006 and claimed that property taxes collected by the Southwest Allen County Fire Protection District should have gone to the Fort Wayne Fire Department. The FWFD had taken over fire protection in an annexed area formerly served by the southwest fire district. * * *
The city’s suit alleged that Klutz had misread the applicable state statute. Klutz disputed the city’s contention that she incorrectly interpreted the law. The city claimed that annexation law was applicable, not tax law.
But Bobay said the city was required to initiate a required administrative appeal from which the state-based Department of Local Government Finance could make a final determination on the matter.
Then the city could seek a judicial review from the Indiana Tax Court.
Ind. Decisions - "Jury finds for Elkhart hospital in malpractice case: Psychiatric patient sexually assaulted by another patient"
Virginia Black reports in the South Bend Tribune in a story that begins:
ELKHART — A lengthy medical malpractice trial ended with a jury deciding Elkhart General Hospital was not in the wrong after a patient on its psychiatric wing was sexually assaulted twice by a patient in the next room in 2008.
The trial, which began Nov. 15 and ended Wednesday, involved a young woman who was admitted to the psychiatric wing after being diagnosed as psychotic and suicidal. She had become convinced she was being left behind by the "rapture" of Christians being lifted to heaven.
Having seen another patient — a middle-aged man admitted for detox services — wrapped in a bedsheet, she believed he was Jesus, court documents say. She told hospital officials she wanted to wash the man's feet, and at one point she threw ice water on a doctor trying to treat the man.
The other patient left the hospital but was later readmitted. Although the wing was nearly empty, he was placed in the room next to the young woman's. This, South Bend attorney Rick Morgan said Monday, was despite the man having behaved inappropriately during readmission and even telling the staff, "I have problems with women."
The man twice lured the young woman into his room and, believing he was Jesus and she had to obey him, she submitted to sexual acts. The assaults were later confirmed by a physical exam after officials did not initially believe her.
The lawsuit was filed in 2009 as a negligence case. Hospital attorneys argued it should be treated as a medical malpractice case.
Judge Evan Roberts agreed the case could proceed as a simple civil lawsuit, but Indiana's appeals court reversed the order, citing the issue of the young woman's treatment as key. The state Supreme Court voted 3-2 against hearing the case. [Here is the appellate docket]
Medical malpractice lawsuits are notoriously difficult to win in Indiana, whose law requires a lengthy process involving the appointment of a three-person medical review panel. The findings of such a panel — composed of three other doctors in the same field — are not binding, but they carry a lot of weight with a jury.
The panel in this case had ruled in favor of the hospital.
Ind. Courts - "Filings, people representing themselves on the rise"
The number of cases filed in local courts went up slightly last year, which officials said is fueled by more police on the streets in local communities.
New case filings in Johnson County increased slightly in 2015, compared to 2014, according to a report from the Indiana Supreme Court.
In the last few years, the number of case filings in local courts has dropped, especially after improvements in the economy, including fewer foreclosures and lower unemployment rates.
That provided some relief to local courts’ caseloads, along with the addition of a new court, Superior Court 4, last year.
But in recent years, filings have started to increase slightly. In 2015, local courts had 28,171 new case filings, just under 1 percent more than the year before, but still significantly down from 2010 when nearly 36,000 new cases were filed, according to the state statistics.
The majority of that increase did not come from new criminal case filings, and instead were from more people being ticketed for traffic violations and local rule violations, Johnson County Deputy Prosecutor Alex Hamner said. In fact, criminal case filings actually went down from 2014 to 2015.
One big reason behind that increase could be due to local communities who have hired more police officers in recent years, he said.
And from 2014 to 2015, the number of new cases filed for ordinance violations, such as certain traffic or parking violations, increased by more than 2,600, he said.
That increase could also be one reason for another spike in the number of people representing themselves in their cases, which hit 7,410 in 2015, up more than 25 percent from 2014.
Often, people choose to represent themselves in those cases, rather than paying for an attorney, he said.
Ind. Decisions - "Indiana Supreme Court clarifies traffic stop rules"
INDIANAPOLIS — The Indiana Supreme Court issued two rulings Tuesday clarifying when police can stop or enter a vehicle after receiving a third-party report of a motorist in danger.
Ind. Courts - More on "7th Circuit can make civil rights history for gay and lesbian employees" [Updated]
Updating this ILB post from Nov. 29th, the en banc 7th Circuit oral argument in Hively v. Ivy Tech. is this morning. My best guess is it will begin at 10:30 EST, 9:30 Chicago time. The Court's daily calendar has not yet been updated for today, it states:
The calendar is posted on the court’s web page each morning by 9:00 a.m. [CST]You will be able to listen to an audio of the oral argument here. It is numbered 15-1720. Expect some confusion because there may be as many as 11 different judges speaking [WOOD, BAUER, POSNER, FLAUM, EASTERBROOK, RIPPLE, KANNE, ROVNER, WILLIAMS, SYKES, HAMILTON], with no identification. (I'm not certain if you can listen in real time, or if the audio is posted later, if I remember correctly, it is the latter...)
Madeline Buckley of the Indianapolis Star has a long story today on the case, headed "LGBT worker's civil rights case could reach beyond state." A sample from the long story:
The full 7th U.S. Circuit Court of Appeals in Chicago will hear arguments in the case Wednesday in what could be a precedent-setting decision. Ivy Tech has consistently denied that Hively was not promoted because of her sexual orientation.[Updated at 10:28] The great resource, Equality Case Files, has all the briefs here.
"Ivy Tech Community College values and embraces diversity," School spokesman Jeff Fanter said in a statement. "It is an equal opportunity employer that does not condone, and in fact explicitly prohibits, employment discrimination based upon a person’s sexual orientation."
If the court was to rule in favor of Hively — which would allow her to go forward with her lawsuit — the decision would implement workplace protections for gay and lesbian residents within the court's jurisdiction of Indiana, Illinois and Wisconsin. That would essentially render moot an ongoing battle in the Indiana General Assembly over legislation that would add a statewide anti-discrimination clause for LGBT Hoosiers.
But if the court rules against Hively, she could appeal her case to the U.S. Supreme Court, setting her case up to potentially have national impact.
The case is cheered by advocates who say it would offer essential protections for lesbian, gay, bisexual and transgender workers and close a gap left from the landmark U.S. Supreme Court decision, Obergefell v. Hodges, that legalized same-sex marriage, but fell short of implementing workplace protections based on sexual orientation and gender identity.
Tuesday, November 29, 2016
Ind. Decisions - More on: "Anderson attorney placed on indefinite suspension"
Updating this ILB post from May 27th, Ken de la Bastide of the Anderson Herald Bulletin reports:
Madison Circuit Court Judge Angela Sims has approved a summary judgment against embattled local attorney Stephen Schuyler foreclosing on his Adams Township property.
Sims on Nov. 21 granted the motion for summary judgment filed by First Merchants Bank foreclosing on the mortgage in the amount owed by Schuyler and his girlfriend, Kim Golden, entering a judgment of $210,452. She ordered Schuyler to pay $30,612 in legal fees. * * *
Schuyler is scheduled to go on trial in Madison Circuit Court Division 3 on March 9 before Judge Thomas Newman Jr. A final pretrial conference is set for Feb. 6.
Schuyler is facing 15 felony counts of theft, check deception and corrupt business influence for allegedly misappropriating funds from six estates totaling more than $700,000.
Madison County Prosecutor Rodney Cummings said Monday the summary judgment has no impact on the pending criminal cases. He said the trial will probably take place in March. * * *
Schuyler’s legal problems started in January 2015 when a check he wrote to East Lynn Christian Church in the amount of $78,387.13 bounced. The church was named as a beneficiary in the estate of Sara Wilding.
In 2015, Criminal Magistrate Steve Clase removed Schuyler from more than 130 cases in which he had a fiduciary interest in estates and guardianships. The cases were assigned to other attorneys.
This year the Indiana Attorney Disciplinary Commission recommended that Schuyler’s license to practice law be suspended indefinitely for non-cooperation in the investigation of complaints filed against him. The Indiana Supreme Court accepted the recommendation.
Ind. Decisions - Supreme Court decides two today, re search & seizure
In Mary Osborne v. State of Indiana, an 8-page, 5-0 opinion, Justice Massa writes:
Mary Osborne filed this interlocutory appeal following the trial court’s denial of her motion to suppress, on the grounds that the traffic stop giving rise to the charges was not permissible under the Fourth Amendment to the United States Constitution or Article 1, Section 11 of the Indiana Constitution. Although we believe the officer’s actions in this case were prompted by a genuine desire to serve and protect, we hold that, under the circumstances, those actions constituted an improper intrusion upon Osborne’s constitutional privileges against unreasonable search and seizure. Accordingly, we reverse. * * *In Eduardo Cruz-Salazar v. State of Indiana, a 4-page, 5-0 opinion, Justice Massa writes:
a warrantless search or seizure is per se unreasonable, and the State bears the burden to show that one of the “well-delineated exceptions” to the warrant requirement applies. [cites omitted]
The United State Supreme Court has identified one such exception relevant to this matter: that the officer had “an objectively reasonable basis for believing that medical assistance was needed, or persons were in danger.” [cites omitted] * * *
Turning to the instant matter, Officer Arnold responded to a report that a woman was trapped under her car, which undoubtedly could give rise to a reasonable concern that emergency medical assistance was needed, prompting further investigation, as in both Bruce and Trotter. However, the actual facts he subsequently confronted did not objectively support that concern: Officer Arnold learned that Osborne had freed herself prior to his arrival at the gas station, Osborne operated her vehicle normally, and Officer Arnold witnessed no traffic infractions or criminal conduct.
Eduardo Cruz-Salazar appeals his conviction for Class A misdemeanor possession of cocaine, claiming the warrantless search which led to the discovery of the drugs was improper under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. In this companion decision, issued today with Osborne v. State, No. 29S02- 1608-CR-433, -- N.E.3d -- (Ind. Nov. 29. 2016), we find Cruz-Salazar’s search permissible, and affirm. * * *
In Osborne v. State, No. 29S02-1608-CR-433, -- N.E.3d -- (Ind. Nov. 29. 2016), also issued today, we described in detail the relevant Fourth Amendment and Article 1, Section 11 concerns, and thus we proceed directly to their application here. Police received a report of a stationary vehicle that had been running for 30 minutes, in the early hours of a cold December morning. This alone is sufficiently unusual to merit further investigation, as it could be an indicator of distress. Police arrived on scene to find the situation as reported, and indeed worse: Cruz-Salazar was at the wheel of the vehicle, and was not responsive when Officer Ayler both shined his flashlight through the windows or when he tapped on the window. At this point, the officer had an objectively reasonable basis to open the door and check on Cruz-Salazar’s well-being. See Michigan v. Fisher, 558 U.S. 45, 49 (2009) (holding the Fourth Amendment permits warrantless search and seizure if police had “an objectively reasonable basis for believing that medical assistance was needed, or persons were in danger.”) Accordingly, we find the warrantless entry into Cruz-Salazar’s vehicle permissible under the Fourth Amendment to the Federal Constitution and Article 1, Section 11 of the Indiana Constitution.
Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 4 NFP memorandum decision(s))
For publication opinions today (0):
NFP civil decisions today (2):
NFP criminal decisions today (2):
Ind. Gov't. - "Historic surgeon general's report on addiction"
Aprile Rickert of the News and Tribune reports in a lengthy story (here via the Ind. Econ. Digest):
SOUTHERN INDIANA — Local health leaders are hoping a first-of-its-kind report from the U.S. surgeon general on the growing problem of drug addiction is a groundbreaking moment in fighting substance abuse in Southern Indiana.
The 472-page report, "Facing Addiction in America: The Surgeon General's Report on Alcohol, Drugs and Health," details the scope of addiction in America — from physiological and psychological causes and effects on individuals, their families and communities, to prevention strategies and policy changes to properly address treatment.
It's the first time the surgeon general has issued a report on addiction, and the first of this size and scope since the Surgeon General's Report on Smoking and Health, released in 1964.
Perhaps most notable is Surgeon General Vivek Murthy's words defining addiction. Since it is largely stigmatized and often misunderstood, many do not get treatment they require to return to being healthy and whole members of the community.
“Addiction is not a character flaw,” Murthy states in the report. “It is a chronic illness that we must approach with the same skill and compassion that we approach heart disease, diabetes and cancer.
“Research reviewed in this report should eliminate many of the long-held, but incorrect stereotypes about substance misuse and substance abuse disorders, such as that alcohol and drug problems are the product of faulty character or willful rejection of social norms.”
These misconceptions have gone a long way to keep people from receiving treatment, either out of shame from the stigma or because the resources are not accessible.
Ind. Courts - "7th Circuit can make civil rights history for gay and lesbian employees"
From Alison Frankel's Reuters' "On the Case" column Monday - some quotes:
Under federal law as it exists right now in the United States, gay men and lesbians can marry their partners over the weekend and can be fired the following Monday for doing so, without any recourse under the Civil Rights Act.Click the link and read on, this is a lengthy, excellent analysis.
But that may be about to change.
On Wednesday, the en banc 7th U.S. Circuit Court of Appeals will hear arguments in Hively v. Ivy Tech Community College, in which former Ivy Tech adjunct professor Kimberly Hively claims the college refused to allow her to interview for a full-time job and ultimately did not renew her contract because she is a lesbian. The case gives the 7th Circuit a historic opportunity to fix what three of its own judges have called “a jumble of inconsistent precedents” and a “confused hodge-podge of cases.” If the full appellate court sides with Hively and her lawyers from the Lambda Legal Defense and Education Fund, gays and lesbians will finally receive protection under federal law from workplace discrimination.
Ind. Law - "'Planets are aligned' to get rid of handgun carry license"
Tony Cook reports in today's Indianapolis Star - some quotes from the long story:
Gun rights advocates see the upcoming legislative session as their best shot yet to get rid of an Indiana law that requires a license to carry handguns.
The controversial legislation failed to advance during the last session, but supporters think this time could be different after sweeping Republican victories on Election Day and with a new, gun-friendly lawmaker overseeing the committee that acts as a gatekeeper on such bills.
"I think the planets are aligned this year," said Rep. Jim Lucas, a Seymour Republican who plans to file the bill when lawmakers convene in January.
He and other advocates of so-called "constitutional carry" — including the powerful National Rifle Association — see licensing requirements and fees as unnecessary impediments to their constitutional right to keep and bear arms. They want Indiana to join at least 11 other states that allow people to carry concealed handguns on their person or in their vehicles without a permit.
"I want to decriminalize our constitutional right to bear arms," Lucas said. "Our right to self-defense shouldn’t be controversial."
Boosting his hopes is a new chairman of the Indiana House committee that handles firearms legislation: Rep. Ben Smaltz.
Smaltz, an Auburn Republican, was appointed chairman of the House Public Policy Committee last week to replace outgoing chairman Tom Dermody, who did not run for re-election. The public policy committee is often the first stop for legislation dealing with hot-button issues including guns, alcohol, gambling and abortion.
Smaltz has been a staunch advocate of gun rights. * * *
The state currently has more than 750,000 active handgun licenses. Nearly 4,900 applications were rejected last year, according to Indiana State Police.
Licenses, which have a one-time cost of $75, can be denied for various reasons including felony or domestic violence convictions, certain drug and alcohol convictions and being found mentally incompetent by a court.
The push in Indiana to get rid of handgun licensing requirements is part of a nationwide effort on the part of gun advocates. At least four states — West Virginia, Mississippi, Idaho and Missouri — have passed new laws within the past year to ditch their permitting requirements.
Another reason for optimism among supporters in Indiana is the election of Gov.-elect Eric Holcomb, whose campaign featured commercials of his wife, Janet, training women how to shoot handguns and pledging that her husband would defend gun rights.
Monday, November 28, 2016
Ind. Decisions - 7th Circuit decides one Indiana case today, dismissing appeal
In USA v. Darryl Worthen (SD Ind., Barker), a 6-page opinion, Judge Kanne writes:
Worthen entered into a plea agreement with the government under which he agreed to plead guilty to these two charges and further agreed to waive his appeal rights. In exchange, the government agreed to drop the other charges and promised to not seek the death penalty. * * *
Irrespective of the appeal waiver, Worthen now appeals his conviction, arguing that Hobbs Act robbery—the predi‐ cate offense for Worthen’s § 924(j) conviction—is not a “crime of violence” as the statute defines that term. Thus, Worthen contends that his § 924(j) conviction is invalid.
Before we can address this argument, Worthen must con‐ vince us that he has not waived his right to an appeal. Gener‐ ally speaking, appeal waivers are enforceable and preclude appellate review. United States v. Sines, 303 F.3d 793, 798 (7th Cir. 2002). Even so, we have recognized a few narrow excep‐ tions to this rule—one of which is that a defendant may al‐ ways contest a sentence that exceeds the statutory maximum for the crime committed. * * *
To be clear, the crux of Worthen’s argument is that the validity of his appeal waiver depends on the validity of his conviction. That argument is entirely circular. Indeed, to determine whether Worthen’s crime‐of‐violence conviction is invalid, we would have to take the appeal in the first place. Then, only if we agree with Worthen and conclude that his conviction is in fact invalid would we find that Worthen’s sentence exceeds the statutory maximum, which in turn would mean that Worthen did not waive his appeal rights. So the rule would be that an appeal waiver is enforceable unless the appellant would succeed on the merits of his appeal. That cannot be the law. * * *
Here, Worthen “expressly waive[d] his right to appeal [his] conviction and sentence … on any and all grounds.” (R. 45 at 4.) His waiver precludes an appeal. We accordingly DISMISS Worthen’s appeal without considering the merits.
Ind. Gov't. - "Industrial wind turbines will not be allowed in or near the Town of Hagerstown"
So reports Bob Hansen in this Nov. 23rd story in the New Castle Courier-Times. The story begins:
The Hagerstown Town Council plans to enact a zoning change that will effectively ban industrial-sized wind turbines in an area referred to as the two-mile fringe, council members told a room full of area residents Monday. The two-mile fringe is an area outside of town where town development and zoning standards apply.
About 15 people attended the meeting to ask the council for action against plans by an international utility company to put up wind turbines.
Even before the assembled group gave its information, council members presented a plan to keep wind turbines out of the area. The plan involves extending a flight path regulation covering the Hagerstown Airport to cover the entire two-mile fringe, said council member Brian Longbons. Most of the two-mile fringe is already in the flight path area, where structures cannot exceed 100 feet in height.
Industrial wind turbines are usually more than 150 feet tall.
Many of the same group of people had attended a town plan commission meeting Nov. 9 to encourage the town to act against a wind turbine proposal put forth by EDP Renewables. According to a map of the proposal, wind turbines are planned north and west of the town’s zoning area. Members of the group said they fear that if that current proposal is approved, it would be only the first step towards having hundreds of wind turbines surrounding the town.