Sunday, March 29, 2015
Ind. Gov't. - "What the 'religious freedom' law really means for Indiana"
Supplementing the two earlier ILB posts this morning ("What is needed to fix SEA 101" and "Illinois law on religious objection balanced by discrimination ban"), Stephanie Wang of the Indianapolis Star has a good story today in the Indianapolis Star that concludes:
[W]ith Indiana not having a statewide nondiscrimination law that protects sexual orientation and gender identity, the RFRA issue has become tightly intertwined with LGBT issues.
That's what makes Indiana's RFRA distinct from the federal law and versions in 19 other states.
Consider Illinois, our neighboring state that also has a RFRA.
Illinois' RFRA was approved in 1998. But Illinois also passed a same-sex marriage law in 2013 that codifies equal status and protection for couples and their families.
Illinois' Religious Freedom and Marriage Fairness Act at the same time preserved religious rights by explicitly saying religious officials would not be required to solemnize any marriages that went against their beliefs, nor would religious facilities be required to hold such marriage ceremonies.
"What we want," said Wilson, who suggested those religious exemptions to the law, "is people to be able to go forward in society, especially when there is a great social change like marriage, just to know how they're going to live together in peace."
"With a RFRA," she explained, "you have to litigate all the way through to figure out if you've won. People don't have clarity until after the fact where their rights begin and the other guy's rights end."
During RFRA discussions in Indiana, state Republican leaders have dismissed statewide class protection for sexual orientation or gender identity. In most cities, there are no local laws that require equal treatment of gay people. That means discrimination on the basis of sexual orientation has never been expressly prohibited in most of Indiana.
After exposing the gap in LGBT protections and the political unwillingness to close it, Indiana's RFRA debate begins for some to look like a pre-emptive move to block social currents. And therein lies the questions over intent.
Indiana is just one year removed from a battle to block marriage equality, and where the right for same-sex couples to marry was only won by a court ruling overturning a longstanding ban.
It is telling to opponents of the religious freedom act that the law was driven mostly by the same conservative Christians who lost their fights against marriage equality. It's also telling, opponents say, that one of the law's primary sponsors, Republican state Sen. Scott Schneider, has touted the notion — which will be an issue for the court to settle — that Indiana's RFRA could exempt Christian businesses from having to provide wedding services to gay couples.
To some, that sounds like legalized discrimination. To others, it's protecting religious rights.
If you're wondering why RFRA does not realistically revive fears of racial discrimination by private businesses, look no further than the U.S. Constitution, federal and state equal protection laws and lots of case precedent. But LGBT rights don't have such broad and explicit protections.
In the few Hoosier cities with nondiscrimination laws, legal experts predict protecting LGBT rights will stand as a compelling government interest.
But for the state as a whole, is it a compelling interest? Or, in the state of Indiana in 2015 and beyond, will protecting LGBT rights be seen as violating someone else's religious rights?
Ind. Gov't. - "Illinois law on religious objection balanced by discrimination ban"
Kim Geiger of the Chicago Tribune wrote yesterday in a story that begins:
When Indiana Gov. Mike Pence signed a new state law that allows people and companies to claim a religious objection to doing business with same-sex couples, he pointed to Illinois and Kentucky, saying he was simply bringing the state in line with its neighbors.
But the Republican governor left out an important fact. While Illinois does have a law that gives special protections to religious objectors, it also bans discrimination based on sexual orientation. Indiana, on the other hand, has no such ban.
Ind. Law - What is needed to fix SEA 101, the Indiana's new RFRA, other than repealing it?
What is needed to fix SEA 101, other than repealing it? Two things:
First, to the new RFRA itself, add the Lanane amendment, wich failed in the Senate. It would add a new subsection (b) to the first section of the law, which details the applicability of the law, to clarify that:
(b) This chapter does not apply to:This change would mean that RFRA does not override local nondiscrimination ordinances or the statewide civil rights law.
(1) IC 22-9-1 (Indiana civil rights law); or
(2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.
But what about the rest of the State, where there is no local nondiscrimination ordinance that includes gays? And what about the now national perception of Indiana as intolerant?
The answer would be to amend the Indiana civil rights act itself, IC 22-9-1, to insert the words "sexual orientation" into the phrase "race, religion, color, sex, disability, national origin, ancestry, or status as a veteran," wherever it appears.
Friday, March 27, 2015
Ind. Law - RFRA: An analysis, and a comparison with its federal counterpart
Matt Anderson, a civil trial lawyer with Wruble & Associates in South Bend, has written a post for his blog, IN Advance, that addresses many of the inquiries the ILB has been receiving, including:
- Does IRFRA resemble its federal counterpart?
- What are the controversial provisions and why?
- The timing factor.
- What to make of it all?
ILB: Another law to look at, and compare, is the Illinois RFRA, from 1998.
Also of interest is this quote from a March 1, 2014 Washington Post article:
How many states already provide heightened protection for the exercise of religion? The answer? Thirty-one, 18 of which passed state laws based on the 1993 federal Religious Freedom Restoration Act. The protections in an additional 13 states came through court rulings.
"These state RFRAs were enacted in response to Supreme Court decisions that had nothing to do with gay rights or same-sex marriage," explained University of Virginia law professor Douglas Laycock in an e-mail. "And the state court decisions interpreting their state constitutions arose in all sorts of contexts, mostly far removed from gay rights or same-sex marriage. There were cases about Amish buggies, hunting moose for native Alaskan funeral rituals, an attempt to take a church building by eminent domain, landmark laws that prohibited churches from modifying their buildings – all sorts of diverse conflicts between religious practice and pervasive regulation."
A new political fight has emerged in part because some of these more recent proposals are shifting the definition of when citizens can opt out on religious grounds. The federal law says that the government may not pass a law that “substantially burdens a person’s exercise of religion.” But now some businesses -- including the ones who are challenging the Affordable Care Act's contraception coverage mandate in the Supreme Court -- are arguing that they don't have to meet this substantial-burden test.
Ind. Law - Indiana's RFRA and the perception of intolerance
The ILB has received questions about how the new RFRA would work in practice. The ILB has asked several respected attorneys the same questions. The answer: No one is really willing, or able, to give a conclusive answer. It all depends on whether there are challenges to, or under, the new law, how those challenges manifest themselves, and what the Indiana courts decide.
Meanwhile, the very act of passing the law has labeled Indiana nationally as intolerant. A quote from a Bloomington Herald-Times story today:
It does not help that our Governor, who announced earlier this week that he was eager to sign the bill into law, held the signing ceremony in private and won't reveal who attended. As the Indianapolis Star reports:
Bloomington Mayor Mark Kruzan on Thursday afternoon chided the state for passing the bill, while also praising the city’s reputation for diversity.
“For those who know Bloomington to be the welcoming community it is, we will be fine,” Kruzan wrote in an email. “But businesses, investors and visitors not familiar with our progressiveness may well paint Indiana with a broad brush to our detriment. I share Indianapolis Mayor (Greg) Ballard’s concern that state government is sending the exact wrong message to the rest of the country.”
Jeb Conrad, president and CEO of the Greater Bloomington Chamber of Commerce, said he’s heard similar concerns from the local firms he represents.
“Anecdotal discussions with our members indicate they’ve been very frustrated with how Indiana looks as a state,” Conrad said. “We hope it doesn’t have the unintended consequences of a change in business procedure. ... It’s not making Indiana look very favorable with respect to the future. It’s sad and frustrating.”
His office [did release a photo, but] then declined to identify those in the photo.Terrence McCoy of the Washington Post has a long story today headed "How Hobby Lobby paved the way for Indiana’s ‘religious freedom’ bill." A quote:
The photo includes Pence sitting at his desk, surrounded by 18 others. The legislation’s primary sponsors – Sen. Scott Schneider, Sen. Dennis Kruse, and Rep. Tim Wesco – are pictured. So, too are several Franciscan monks, nuns, and orthodox Jews. One of the monks appears to be Fr. David Mary Engo of the Franciscan Brothers Minor in New Haven. He testified in favor of the bill during legislative hearings.
But according to people who attended, there were dozens of others present as well, perhaps as many as 80 total.
Another photograph, posted on Twitter by the American Family Association of Indiana’s Micah Clark, shows Pence at his desk surrounded by a different group. They include the state’s three most prominent lobbyists on conservative social issues: Clark, the Indiana Family Institute’s Curt Smith, and Advance America’s Eric Miller.
Those three, with their connections to a vast network of conservative churches, led a failed effort last year to ban same-sex marriage in Indiana’s constitution. The governor has tried to distance the religious freedom legislation from that issue.
[The bill] shows once again that the impact of Supreme Court rulings can go well beyond the legal confines of a particular decision and reverberate politically — and that even when a ruling is narrowly framed, the uses made of it can be quite broad.See also Sheila Kennedy's column in Indiana Forefront, which begins:
“Our decision in these cases is concerned solely with the contraceptive mandate,” Justice Samuel A. Alito Jr. wrote in the Hobby Lobby case. Yet it fueled support for a measure involving sexual orientation in Indiana and elsewhere.
Indiana State Sen. Scott Schneider (R), who introduced the religious freedom bill at the end of last year, cited the Hobby Lobby ruling as inspiration. “In reviewing that court ruling, it became clear that Indiana’s laws were not reflective of federal law,” he said in a statement in December. “This bill, which I plan to author this session, would match federal law.”
That was exactly what concerned Ginsburg. When you endow for-profit organizations with the same religious rights as an individual, it’s done regardless of the “impact that accommodation may have on third parties who do not share the corporation owner’s religious faith.” And for some, it doesn’t take a lot of imagination to conjure up the resulting possibilities.
Hoosiers who want to discriminate against their LGBT neighbors can already do so with impunity–Indiana’s civil rights laws do not protect gay citizens. Same-sex marriages may be legal in Indiana, but gay Hoosiers can still be denied services, refused employment and/or fired just for being gay. So to the extent that SB 101 is intended to protect those who discriminate against gays, it’s totally unnecessary. Unless, of course, our lawmakers want to “send a message.”Finally, for those who want to read SEA 101 for themselves, here is the Enrolled Act. You can also read it via the IndyStar.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 6 NFP memorandum decisions)
For publication opinions today (1):
In Jimmy Wallen, Jr. v. State of Indiana, a 3-0 opinion, Judge Riley writes:
Appellant-Defendant, Jimmy Wallen, Jr. (Wallen), appeals his conviction of theft, a Class D felony, Ind. Code § 35-43-4-2 (2013). We affirm.NFP civil decisions today (2):
Wallen raises one issue on appeal, which we restate as follows: Whether the trial court abused its discretion by giving an improper jury instruction. * * *
Based on the foregoing, we conclude that the trial court abused its discretion in tendering the jury instruction; however, such error was harmless in light of the evidence of Wallen’s guilt.
Vaidik, C. J. concurs
Baker, J. concurs in result with separate opinion [that concludes] I believe that the jury instruction in this case is appropriate and accurate, and part ways with the majority’s conclusion that it was erroneous. I agree with the result reached by the majority, however, and would likewise affirm Wallen’s conviction.
NFP criminal decisions today (4):
Thursday, March 26, 2015
Ind. Decisions - Supreme Court, 3-2, vacates transfer grant and reinstates 2-1 COA decision
Accordingly, the order granting transfer is VACATED, and transfer is hereby DENIED. The decision of the Court of Appeals, published as Dixon v. State, 14 N.E.3d 59 (Ind. Ct. App. 2014), is hereby REINSTATED as Court of Appeals authority. * * *
Rush, C.J., and Dickson and Rucker JJ., concur.
David and Massa, JJ., dissent from the denial of transfer and would adopt the Court of Appeals’ dissenting opinion.
Ind. Gov't. - "Purdue sued over Amazon textbook deal"
Steven Porter and Joseph Paul report today in the Lafayette Journal & Courier in a story that begins:
An Ohio-based association of campus retail stores wants more detail about a business deal struck last year between Purdue University and online retail powerhouse Amazon, which opened its first brick-and-mortar store earlier this semester on the West Lafayette campus.The story links to an earlier, Nov. 24, 2014 opinion of the Indiana Public Access Counselor that includes:
Located in Krach Leadership Center, Amazon's on-campus store serves as a pickup and drop-off spot for textbooks and other merchandise students order online.
Purdue President Mitch Daniels announced during a ribbon-cutting ceremony in February that preliminary numbers suggest students have saved more than 40 percent through the partnership.
The National Association of College Stores Inc. — a nonprofit trade organization representing more than 3,000 campus retail stores worldwide — requested and obtained a copy of the agreement university officials signed with Amazon, but multiple pages in the document had been redacted.
The university, which is a public agency, asserted that the materials were redacted because they constitute trade secrets under Indiana's public records law.
The association, however, disagrees, claiming in a lawsuit filed Tuesday in Tippecanoe Superior Court 2 that the redacted materials constitute public records that the university must release upon request.
Purdue has not withheld the entire document in this case and rightfully so. Public-private contracts should be scrutinized in the light of day. However, given that contracts may contain confidential information, Indiana law allows for redaction. It may possibly be the University’s determination the information they deem as a trade secret is erroneous, but this Office cannot decide that particular issue based on the information provided.More from today's story:
Steve Schultz, who serves as legal counsel for the university, responded to questions from the Journal & Courier in writing, citing Britt's opinion.
"We have not yet seen the complaint and, in general, do not comment on pending litigation," he wrote. "That being said, our contract with Amazon explicitly states that the contract contains information Amazon considers to be trade secret."
It would be a violation of state law for the university to divulge such secrets, Schultz added.
Schneider said he was surprised that Britt's opinion was based on a review of the redacted agreement, rather than a complete copy.
Ind. Gov't. - "Pence signs Religious Freedom Restoration Act" [Updated]
Here is Niki Kelly's report today in the Fort Wayne Journal Gazette and this quote goes to the crux of the matter:
Sen. Dennis Kruse, R-Auburn, says he authored the measure in reaction to the federal Hobby Lobby case where the U.S. Supreme Court ruled a religious company couldn't be forced to provide birth control.[Update] ILB: Here is Senate Enrolled Act 101, effective July 1. Notice that Sec. 2 states [ILB emphasis]:
But it also follows a long battle on same-sex marriage equality in Indiana, and many consider the bill to be a consolation prize of sorts to religious conservatives.
Opponents are concerned it legalizes discrimination against gays and lesbians - especially allowing businesses to refuse service based on sexual orientation.
Indiana has no state no civil rights protections for sexual orientation so this type of discrimination can happen legally today.
But 12 cities have local human rights ordinances that do protect gays and lesbians. The question is whether those ordinances are superseded by a person or business' religious beliefs.
A governmental entity statute, ordinance, resolution,executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 8 NFP memorandum decisions)
For publication opinions today (2):
In LBLHA, LLC, Margaret L. West, and Don H. Gunderson v. Town of Long Beach, Indiana, Alliance for the Great Lakes and Save the Dunes, Long Beach Community Alliance, Patrick Cannon, et al., a 30-page opinion, Judge Brown writes:
LBLHA, LLC, Margaret L. West, and Don H. Gunderson (collectively, the “Lakefront Owners”) appeal orders of the trial court dismissing all counts of their complaint against the Town of Long Beach, Indiana (the “Town”) and other intervenor defendants, raising several issues. We find dispositive at this stage in the proceedings whether the State of Indiana or appropriate State officials as individuals in their official capacity should have been added or joined as a party or parties to the proceedings prior to the rulings on the Lakefront Owners’ claims. We reverse and remand. * * *ILB: The above case on Lake Michigan shorefront property rights is one which the ILB has been following since its inception. See this list of posts.
In sum, we conclude the State of Indiana or appropriate State officials as individuals in their official capacity should have been added or joined as a party or parties to the proceedings prior to the rulings on the parties’ respective summary judgment motions and, accordingly, we reverse the court’s entry of summary judgment with respect to Counts I through IV of the Lakefront Owners’ complaint. We also find the court was without authority to enter an order as to Count V on April 24, 2014. After the State of Indiana is given the opportunity to present its position with respect to its ownership interest or the interest of the public in or to the disputed beach area, the trial court may rule on the parties’ summary judgment motions or proceed to trial with respect to one or more of the Lakefront Owners’ claims. We express no opinion regarding the allegations under any of the counts of the Lakefront Owners’ complaint or arguments set forth in the parties’ summary judgment materials or on appeal by the parties or amici curiae with respect to the Lakefront Owners’ claims.
Conclusion. For the foregoing reasons, we reverse the court’s December 26, 2013 order entering summary judgment with respect to Counts I through IV of the Lakefront Owners’ complaint, reverse the court’s April 24, 2014 order with respect to Count V, and remand to allow the addition of the State of Indiana or appropriate State officials as individuals in their official capacity as a party or parties, and for further proceedings consistent with this opinion.
In Marvin Crussel v. State of Indiana , a 12-page opinion, Judge Pyle writes:
Marvin Crussel (“Crussel”) appeals, following a bench trial, his conviction for Class B misdemeanor reckless driving.1 Crussel concedes that he drove at an unreasonably high rate of speed but argues that we should reverse his conviction because the evidence presented was insufficient to show endangerment. Concluding that the trial court, acting as factfinder, could have reasonably inferred that Crussel’s act of driving ninety-one miles per hour in a fifty-five mile-per-hour zone at around 10:30 p.m. in the dark of night on a portion of a country road that had houses and cross streets endangered the safety and property of others, we affirm his conviction. * * *NFP civil decisions today (2):
Crussel’s argument—which in essence challenges the significance applied to the evidence of the circumstances surrounding his act of recklessly driving at an unreasonably high rate of speed—is nothing more than an invitation to reweigh the evidence, which we will not do.
NFP criminal decisions today (6):
Ind. Decisions - On rehearing, Supreme Court strikes "first clause of footnote 3"
In First American Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Ind., in his Official Capacity, on Behalf of the Ind. Dept. of Insurance, a 2-page, 5-0 opinion on rehearing, Justice Rucker writes:
The Commissioner of the Indiana Department of Insurance (“Commissioner”) seeks rehearing of this Court’s opinion in which we determined a petitioner seeking judicial review of an agency decision must file the agency record as defined by the Administrative Orders and Procedures Act and that the failure to do so results in dismissal of the petition. See American Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind. 2014). * * *ILB: See the Nov. 13, 2014 opinion.
In his Petition for Rehearing, the Commissioner takes issue with the first clause of the footnote contending, “the Court’s judgment reversing the trial court for failing to dismiss the First American petition for judicial review appears inconsistent with its summary affirmance of the Court of Appeals concerning the timeliness of the Commissioner’s hearing order and First American’s failure to exhaust administrative remedies.” Pet. for Reh’g at 1. According to the Commissioner, “there is substantial tension, if not outright conflict, among these statements.” Id. at 3. We agree and therefore grant rehearing to delete the first clause of footnote three. In all other respects the original opinion is affirmed.
Law - "Legislation to Curb Civil Forfeiture Advances in States ;" Indiana update
From the WSJ Law Blog, a short article by Jacob Gershman. Some quotes:
Georgia lawmakers are set to vote on legislation intended to rein in the state’s civil forfeiture procedures, part of a national push for more scrutiny and limits on asset-seizure programs that law enforcement officials say help curb drug crimes but critics say are prone to abuse.ILB: Senator Hershman has a limited bill, SB 388, now in House Judiciary, that would require:
The Republican-led Senate in Georgia could vote on HB 233 as early as Thursday, officials said. It passed the House unanimously earlier this month. Republican Gov. Nathan Deal has said the state should consider revising its forfeiture laws. A spokeswoman for his office said the governor doesn’t comment on pending legislation.
The bill would require that annual standardized reports on agency forfeitures be posted online; require that district attorneys use the money they seize for “official prosecutorial purposes,” and subject law enforcement to more rigorous auditing, according to a Atlanta Journal-Constitution report.
More sweeping legislation curbing civil forfeiture also just passed the New Mexico Legislature and awaits the governor’s signature. That measure would give more rights to innocent owners, require that forfeiture hearings take place only following convictions, and mandate that seized proceeds be deposited into a state general fund rather than prosecutor-controlled accounts.
Critics of civil forfeiture laws say the power to seize assets from people never charged with a crime encourages law enforcement agencies to “police for profit” and lacks safeguards to protect the innocent.
Reporting of property forfeiture. Requires the Indiana prosecuting attorneys council to make an annual report to the legislative council concerning civil forfeitures conducted in Indiana, and requires the state police department to annually report to the legislative council the amount of money it has received from the federal government as the result of a forfeiture conducted by the federal government.For more, see this Feb. 22nd ILB post as a starting point. In addition, our Supreme Court, on March 24th, in Sargent v. State, reversed a civil forfeiture on a 3-2 vote.
Ind. Gov't. - "Scott County sheriff fears losing a generation to drugs, HIV" [Updated]
A powerful story from Maureen Hayden, CNHI, in the Rushville Republican (here via Ind. Econ. Digest). Some quotes:
INDIANAPOLIS - After 13 years in the military - most of them with a special operations team that pursued terrorist targets around the world - Dan McClain was ready to come home to rural Scott County and raise his family.[Updated] See also this long story in the March 25th Chicago Tribune.
He soon discovered, he said, “It’s not what it used to be.”
Now the county sheriff, McClain finds himself amid the largest single HIV outbreak in the state’s history. A growing number of inmates in his jail are diagnosed with HIV, the virus that causes AIDS.
Every one of 55 newly confirmed cases of HIV in Scott County - more are pending confirmation - is linked to intravenous drug users who shared needles while injecting a highly addictive painkiller called Opana.
The cause of the scourge is well known to those who live in Scott County, as health officials scramble to control the crisis.
But just last week, McClain and his deputies came upon a flophouse where a group of addicts was shooting drugs into their veins.
“Everybody knew of the risk,” he said, “but that’s the nature of addiction - that they just don’t care.” * * *
Why Scott County has become the epicenter of a growing health crisis is something that McClain and other local leaders are trying to figure out.
Their community is poorer and less educated, with fewer work opportunities, than most of the state. It has ranked 92nd among Indiana’s 92 counties on the state Health Index for six years, put at the bottom of the list by childhood poverty, lack of healthcare access and other factors.
“We’re like many rural communities in Indiana. You drive through our small towns and see a lot empty storefronts,” McClain said. “Too many people here just feel hopeless.” * * *
The drugs aren’t new. About a decade ago, law enforcement in Scott County and throughout Indiana saw growing abuse of the prescription painkillers hydrocodone and oxycodone. As manufacturers changed those drugs to make them harder to inject, addicts just turned to other opiates.
The surge in drug use lead to a surge in crime. McClain’s jail is so crowded with addicts that he’s farmed out prisoners to neighboring county jails.
Now he faces a public health crisis, as well.
An immediate worry for McClain is how to pay the medical costs of the newly infected, HIV-positive inmates. He had 10 confirmed cases last week, with more expected. And those are just the ones he could convince to get tested. Others are likely infected but refuse the test.
McClain worries not just about them but their families. Most HIV cases involve people in their 20s and 30s. Many have children. Two cases involve pregnant women.
“I worry about the lost generation,” he said. “A lot of people we’ve arrested have kids who are now being raised by their grandparents. We’re going to have whole generation of children who don’t know what it means to be raised by their parents.”
[Updated at 10:17, 3/16/15] Some new tweets from reporter Hayden:
- Gov Pence authorizes emergency needle exchange program for Scott County where HIV confirmed cases now up to 79 with more expected.
- Gov's emergency order also orders state health dept to up mobile site to sign up residents in high-poverty Scott Co for Medicaid HIP.
- Pence calls HIV outbreak in Scott Co an "Indiana problem" but health officials say he opposes expanding needle exchange elsewhere
Courts - "Negative Yelp, Angie’s List reviews prompt dog obedience business to sue"
Interesting story yesterday by Justin Jouvenal of the Washington Post; a quote:
Lawsuits over negative reviews have risen in recent years with the popularity of sites such as Yelp, Angie’s List and TripAdvisor that allow users to rate and provide feedback on businesses. The reviews have become an increasingly important factor for companies, generating new customers — or sending them fleeing.
In 2012, a D.C.-based contractor sued a Fairfax woman for $750,000 over her one-star takedown of his work on her home. And the Virginia Supreme Court is expected to decide soon whether Yelp will be required to turn over the names of anonymous users who disparaged Alexandria’s Hadeed Carpet Cleaners. First Amendment advocates are watching that case closely.
Courts - Is this case "Better Call Saul" in real life?
On March 24th the NY Times Science Section had a story by George Johnson titled "When Science Is Lost in a Legal Maze." It began:
In a saner world, where science and the law meshed more precisely, a case like Firstenberg v. Monribot would have been dead on arrival in court. But that is not what happened.Later in the story:
Earlier this month, five years after the lawsuit was filed, the New Mexico Court of Appeals upheld a lower court’s ruling that Arthur Firstenberg, an outspoken opponent of wireless technology, could not seek $1.43 million in damages from his neighbor, Raphaela Monribot, for damaging his health by using her iPhone and a Wi-Fi connection.
A self-described sufferer of a medically unrecognized condition called electromagnetic hypersensitivity, he was already known in Santa Fe for his unsuccessful effort to block the installation of Wi-Fi in the city library and other public places.If you haven't been watching Better Call Saul, it is the prequel to Breaking Bad, telling the early story of the young lawyer Jimmy who later becomes "Saul." It is a great show, do watch it in order.
When I heard that Mr. Firstenberg, who lives a couple of miles from me, was filing a tort claim seeking damages for what amounted to electromagnetic trespassing, I assumed the case would be quickly dismissed. Instead, in 2010, it entered the maze of hamster tubes that make up the judicial system.
Wednesday, March 25, 2015
Ind. Decisions - Supreme Court decides one today
In Dustin E. McCowan v. State of Indiana, an 11-page, 5-0 opinion, Justice Massa writes:
Among the most fundamental precepts of American criminal justice is that the accused is presumed innocent until proven guilty beyond a reasonable doubt. Today we examine our holding in Robey v. State, 454 N.E.2d 1221 (Ind. 1983), and state unequivocally and prospectively that it is the absolute right of every criminal defendant to receive the following jury instruction upon request: “The presumption of innocence continues in favor of the defendant throughout the trial. You should fit the evidence to the presumption that the defendant is innocent if you can reasonably do so.” In this case, however, the jury instructions adequately encompassed these principles, which was the minimum required by prior precedent, and thus the trial court’s failure to use this precise language was not error. * * *
Two passages of our ruling in Robey have proven to be in conflict. The first mandated the trial court include, upon request, a jury instruction as to the presumption of the accused’s innocence continuing throughout the trial, and that the jury should fit the evidence to a theory of innocence if it was reasonable to do so. The second then undid this seemingly bright line rule, in favor of a flexible standard requiring that the jury instructions as a whole must discuss the same principles. Today we resolve that conflict in favor of the rule. We do not believe, however, that the trial court in this matter committed an abuse of discretion in providing jury instructions which satisfied the flexible standard of Robey, given the previous ambiguity in the law. In all other respects, we summarily affirm the holding of our Court of Appeals below, pursuant to Indiana Appellate Rule 58(A)(2).
Ind. Gov't. - Open house scheduled for Dunes pavilion project
Updating a number of earlier ILB posts on the Indiana Dunes Pavilion projects, here are some quotes from today's IDNR news release:
The Department of Natural Resources has scheduled an open house on April 6 to introduce plans for adaptive reuse of the pavilion at Indiana Dunes State Park.The news release links to a quite informative and responsive 5-page FAQ on the project, access it here.
The open house will be from 5-6:30 p.m. (CDT) at the Indiana Dunes Visitor Center, 1215 N. State Road 49, Porter, IN, 46304. The center is north of the Indiana Toll Road and Interstate 94, and south of Indiana Dunes State Park and U.S. 20.
DNR staff will be available to provide an overview of the pavilion’s history and answer questions related to the process used for selecting Pavilion Partners, LLC, to design the project and operate it through a public/private partnership.
“We have waited a long time to find the right partner to restore this iconic building to its original glory,” said Dan Bortner, director of the DNR Division of State Parks. “We look forward to seeing the Indiana Dunes State Park Pavilion alive with people – not just in summer but year- round.”
Pavilion Partners, LLC, will be on hand with information and timelines related to the project. This will include designs for a new concession area, a pavilion rooftop restaurant, new restrooms with showers and family dressing rooms for beachgoers, and a conference/banquet center.
The open house will provide an opportunity to talk one-on-one with DNR staff and Pavilion Partners and ask questions or offer suggestions.
The ILB hopes shortly to post links to the Pavilion Partners LLC lease with IDNR, plus the prospectus and proposal. [Updated: Here it is now, a 95-page pdf document, so somewhat slow loading.]
Additionally, according to the release, renderings/drawings of the planned convention center will be available at the open house scheduled for April 6.
Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 11 NFP memorandum decisions)
For publication opinions today (6):
In Norris Avenue Professional Building Partnership v. Coordinated Health, LLC, a 16-page opinion, Judge Najam writes:
Norris Avenue Professional Building Partnership (“Norris”) appeals the trial court’s judgment for Coordinated Health, LLC (“Coordinated Health”) on Norris’ complaint for breach of a lease agreement. Norris raises a single issue for our review, namely, whether the trial court erred when it concluded that Coordinated Health did not breach the lease agreement. We reverse and remand with instructions.In In the Matter of the Termination of the Parent-Child Relationship of J.W., Jr., A.W., and D.D., Minor Children, T.D., Mother, and J.W., Sr., Father v. Ind. Dept. of Child Services, an 11-page opinion, Judge Najam writes:
T.D. (“Mother”), and J.W., Sr. (“Father”) (collectively, “the Parents”) appeal the trial court’s termination of their parental rights over J.W., Jr., Z.W., and D.D. (“the Children”). The Parents raise a single issue for our review: whether the statutory waiting period under Indiana Code Section 31-35-2-4(b)(2)(A)(iii) is tolled during any period in which the Indiana Department of Child Services (“DCS”) fails to provide or otherwise make services available to a parent prior to seeking the termination of that parent’s parental rights. On this question of first impression, we hold that Indiana Code Section 31-35-2-4(b)(2)(A)(iii) simply requires the DCS to demonstrate compliance with the statutory waiting period—namely, that a child has been removed from a parent for fifteen of the most recent twenty-two months immediately prior to the termination hearing. That statute does not condition the waiting period on whether the DCS provided or otherwise made available any type of services to the parent. As such, we affirm the trial court’s termination of the Parents’ parental rights.In April Goodwin, Tiffany Randolph, and Javon Washington v. Yeakle's Sports Bar and Grill, Inc., a 13-page opinion, Judge Najam writes:
This case presents yet another opportunity for Indiana’s appellate courts to clarify the Indiana test for determining whether a duty exists in a negligence action, an issue that has created confusion at every level of our judiciary. There are two tests in Indiana. First, if a duty is well-established in our case law, and the case before the court is substantially similar to that case law, then that duty applies. If, on the other hand, the case before the court presents facts and circumstances that have not been addressed in prior decisions of Indiana’s appellate courts, then in determining whether a duty exists, we must balance the three factors articulated in Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991), including the reasonable foreseeability of harm to the person injured. * * *In The Peoples State Bank v. Benton Township of Monroe County, Indiana, a 20-page opinion, Judge Bailey writes:
Here, the Bar’s sole contention in its summary judgment motion was that it did not owe a duty to protect the Appellants from Carter’s criminal acts because they were not reasonably foreseeable. But, as our supreme court has held, reasonable foreseeability does not determine duty where, as here, the duty is well-established. See Yost, 3 N.E.3d at 515; Bartolini, 799 N.E.2d at 1053; Sharp, 790 N.E.2d at 465. The Bar owed the Appellants a duty to protect them from the foreseeable criminal acts of third parties. As such, the Bar cannot satisfy its burden to affirmatively negate the duty element of the Appellants’ negligence claims. See Hughley, 15 N.E.3d at 1003. Thus, the trial court erred when it entered summary judgment in favor of the Bar, and we reverse and remand for further proceedings.
The Peoples State Bank (“the Bank”) appeals the denial of its motion to correct error, which challenged a grant of summary judgment in favor of Benton Township of Monroe County, Indiana (“Benton Township”) upon the Bank’s collection complaint. The Bank presents a single, consolidated issue for review: whether summary judgment was improvidently granted to Benton Township as opposed to the Bank, upon the trial court’s conclusion that a loan transaction was void. We affirm. * * *In Larry Bell v. State of Indiana, an 11-page opinion, Judge Mathias concludes:
The purported contract executed by a township employee in contravention of statutory requirements is invalid. The Bank may not pursue additional equitable remedies against Benton Township, beyond the partial settlement agreement. Accordingly, the trial court properly granted summary judgment to Benton Township as opposed to the Bank.
The trial court did not abuse its discretion by admitting into evidence Bell’s outof-In Chelsea Taylor v. State of Indiana, a 12-page opinion, Judge Bailey writes:
court statement that he was able to “read” people. This statement was not
hearsay because it was the statement of a party opponent, namely Bell himself.
It was relevant and not unfairly prejudicial. Nor was Bell’s statement
inadmissible character evidence. Lastly, even if we agreed with Bell that the
statement was inadmissible, any error in the admission of the statement would
have been harmless given the evidence regarding C.M.’s inability to be aware
that Bell was engaging in sexual intercourse with her. Affirmed.
Chelsea Taylor (“Taylor”) appeals her conviction for Neglect of a Dependent, as a Class A felony. Taylor presents three issues for review, one of which is a challenge to the sufficiency of the evidence. Concluding that the State did not present sufficient evidence of probative value, we reverse. * * *NFP civil decisions today (5):
The inference-stacking without establishment of a predicate fact, which the prosecution invited and the State deems sufficient to withstand appeal, is not constitutionally adequate. The State failed to adduce sufficient proof to support Taylor’s conviction for Neglect of a Dependent.
NFP criminal decisions today (6):
Environment - More on wind turbines and Indiana bats
The ILB has had a number of posts on this topic, here are some of them.
Today JD Supra has an article by Rafe Petersen of Holland & Knight LLP, titled "Court Upholds Endangered Species Act Incidental Take Permit for Windfarm," that begins:
On March 17, 2015, Judge Leon of the United States District Court for the District of Columbia issued a memorandum opinion upholding the United States Fish and Wildlife Service's (USFWS) issuance of an incidental take permit for the killing of endangered Indiana bats at the Buckeye Wind Power Project in Ohio. The plaintiffs, Union Neighbors United, a non-profit corporation that was formed to address issues relating to the siting of industrial wind turbines, challenged the USFWS finding that the permit will, to the maximum extent practicable, minimize and mitigate the impacts on the bats.
The Indiana Bat was placed on the Endangered Species Act (ESA) list of "endangered" species in 1967 due to large decreases in population size and an apparent lack of winter habitat. It is currently facing additional threats related to "white nose syndrome", which is disease of hibernating bats that has been associated with steep population declines.
Ind. Decisions - "Supreme Court Rules Indiana Schools Not Required to have Free Bus Service"
That is the headline to this brief story in the TriState Homepage:
A huge shift could be coming to how our Indiana kids get to school. In fact, some school districts might scrap bus service altogether.The Indianapolis Star has a longer story here.
In a unanimous ruling, the Indiana supreme Court overturns a lower court's decision that claimed charging bus fees was unconstitutional. Therefore, it states districts are not required to provide free bus service to all students.
The high court says "the framers did not intend for every aspect of public education to be free."
Some cash strapped districts around the state have suggested the possibility of ending bus service as a way to close large budget deficits.
The Supreme Court opinion, issued yesterday, is Lora Hoagland, On Behalf of Herself and All Others Similarly Situated v. Franklin Township Community School Corp.
Ind. Courts - More on "Dyer dentist seeking more than $15 million in lawsuit against state"
The ILB has updated its March 23rd post with a copy of the 12-page, 12/31/14 opinion by Judge McCarty in Atcha v. Ind. Prof. Lic. Agency, that concluded:
For all the foregoing reasons, the Final Order of the Indiana State Board of Dentistry in the administrative proceedings entitled In the Matter of the License of Irfan A. Atcha, DDS, Cause Number 2012 ISDS 0005 is hereby REVERSED and set aside as contrary to a constitutional right and privilege pursuant to Ind. Code § 4-21.5-5-14(d).
Ind. Decisions - "Supreme Court: Ball State can detain transcripts"
That is the headline to a story yesterday in the Muncie Star-Press, reported by Seth Slabaugh. Some quotes some the long story:
MUNCIE – The Indiana Supreme Court has ruled that Ball State University does not have to turn over the official college transcript of a student who left the school with an unpaid tuition balance exceeding $9,000.ILB: Here is the March 18th opinion in Ball State University v. Jennifer Irons; In Re the Marriage of: Jennifer Irons and Scott Irons.
“We asked the court to take a look at the ... question of whether or not colleges and universities have a common law lien over the transcript of a student who fails to pay ... loans, tuition or fees, and the court agreed that in fact there is a common law lien,” BSU attorney Jim Williams told The Star Press on Monday. “This is an important part of the toolbox any college or university in Indiana uses to collect outstanding debt.” * * *
The University of Indianapolis and Butler, Indiana Wesleyan and Taylor universities became “friends of the court” who joined Ball State in pressing its position.
The Supreme Court also ruled that Ball State could not be “dragged ... by the heels” into divorce court as a party to a dispute between a mother and a father over their child’s higher education expenses. Such disputes are becoming more common. * * *
Williams has compared a common law lien to a mechanic’s lien. “The mechanic has a lien on the car until the bill is paid,” he told The Star Press last year. “Technically, the mechanic can withhold the car until the bill is paid.”
The Supreme Court unanimously ordered the trial court to dismiss Ball State from the divorce action. Ball State’s appeal of the trial court’s decision had been dismissed earlier by the Indiana Court of Appeals, after which BSU appealed to the Supreme Court.
Michael Reilly, director of the American Association of Collegiate Registrars and Admissions Officers, told The Star Press it is very common for schools to place holds on transcripts.
“It really is one of the most significant incentives for students to pay their debt,” Reilly said.
Noting that Irons was unable to enroll at IU Northwest without her Ball State transcript, Reilly said, “The receiving side is requiring it, too, so it happens on both ends. One reason the receiving schools needs the transcript is to verify that a student has left the other school in good standing, he said.
Tuesday, March 24, 2015
Ind. Gov't. - "Indiana religious freedom act: Does it protect faithful or legalize prejudice?"
Harry Bruinius has this story today in The Christian Science Monitor. A quote:
Over a decade ago, many liberal states, including Connecticut, Illinois, and Rhode Island, passed their own versions of the 22-year-old federal Religious Freedom Restoration Act. Overall, at least 19 states have passed similar bills, since the federal law does not apply to the states, the US Supreme Court ruled in 1997.
But since last year, the Supreme Court’s Hobby Lobby decision has changed the bipartisan tenor of the law. The nation’s highest court used the federal religious freedom statute to rule that closely held corporations with religious objections to contraceptives were exempt from the Obamacare provision requiring their coverage. Since then, conservatives have seen state religious freedom laws as a means to combat the expanding definition of marriage, as well as other hot-button social issues.
“If we truly are doing things unto the Lord, our business can be ... a church or sanctuary,” argued Indiana Republican Rep. Bruce Borders on the House floor Monday, bringing up the question of the anesthesiologist. “People deserve protection in their businesses as well, not just on Sunday morning.”
Ind. Gov't. - Still more on: Changes to limit public access to records law buried within massive "Education deregulation" package
INDIANAPOLIS - Lawmakers say a provision that would allow government entities to charge a searching fee for records requests that take longer than two hours to fulfill will be removed from a proposal.Good news! As the ILB wrote earlier:
House Education Committee members heard testimony Tuesday about a bill that aims to aims to simplify school management by cutting obsolete and duplicate rules in education.
The current version would also change how public records are handled by all types of Indiana agencies, not just schools, sparking mixed reviews from open-records advocates.
Bill sponsor Rep. Tony Cook, a Cicero Republican, says he plans to remove the $20 search fee and all other changes to the Public Record Act in a future amendment.
The language changing the public records law has been in the bill since introduction, a bill which the synopsis labels "Education deregulation." The changes to the public records law, however, would apply across-the-board, and this inclusion in a law otherwise dealing with education might be called log-rolling by some.
Ind. Courts - Complying with the revisions to Administrative Rule 9 - Q & A #7
[The ILB has created a new category, "Adm. Rule 9 Questions," which will give you direct access to all the Q&A on this topic.]
Responses are from Maggie Smith, Frost Brown Todd LLC, who serves on the Court's Committee on Rules of Practice and Procedure.
Q1: Are medical records entitled to be filed on green paper as a matter of right?
Q1 SHORT ANSWER: Mostly no. Certain types of medical records are declared confidential by statute, which would allow exclusion under A.R. 9(G)(2)(b) as a matter of right. But the vast majority of medical records are not deemed confidential by any state statute and, therefore, the only way to exclude them would be via the four-part process in AR 9(G)(4). (See effect of HIPAA below.)
Q1 LONG ANSWER: The statute many attempt to use to support a broad-based assertion of confidentiality for medical records is Ind. Code §5-14-3-4(a)—part of the Access to Public Records Act—which provides, “The following public records … may not be disclosed by a public agency, unless access to the records is specifically required by a state or federal statute or is ordered by a court under the rules of discovery … (9) Patient medical records and charts created by a provider ….”
BUT … 5-14-3-4(a)(9) says only that “the following public records … may not be disclosed by a public agency.” So this statute does not broadly declare that all medical records are confidential. Instead, it presumes that medical records are “public records” and only prevents a “public agency” from disclosing them, and even then allows them to be disclosed when “ordered by a court under the rules of discovery.” Therefore, 5-14-3-4(a)(9) is not a statute declaring medical records to be confidential in litigation between private parties and a litigant would need some other statute declaring medical or health records to be confidential in order to invoke 9(G)(2)(b).
The following is a sampling of Indiana statutes that do declare certain types of medical records confidential or identify certain circumstances where medical records will be confidential:
- “mental health record” (16-39-2-3, 16-39-3-10)
NOTE: “Mental health records” means “recorded or unrecorded information concerning the diagnosis, treatment, or prognosis of a patient receiving mental health services or developmental disability training. The term does not include alcohol and drug abuse records.” §16-18-2-226. The Code does not define what constitutes “mental health services.” Other statutory references suggest “mental health services” include anything related to a mental illness, but the term “mental illness” is not defined in the statutes, either. So it will likely come down to how the physician/medical community characterizes the condition at issue.
- medical records from an autopsy (16-39-7.1-2)
- medical records provided to “hospital medical staff committees” for “research purposes,” “gathering statistics and other information concerning the prevention and treatment of diseases, illnesses, and injuries” and “reducing morbidity or mortality” (16-39-6-1, 16-39-6-3)
- “health records obtained [by a coroner]” (36-2-14-21);
- medical records “generated to prove that an individual is qualified for” “impairment” or “disability benefits” (33-39-7-17; 33-38-8-15; 33-38-7-12; 2-3.5-4-5; 36-8-6-13; 5-10.4-5-2; 36-8-7-16; 36-8-8-12.7; 36-8-7.5-13)
- medical record “that is confidential under 42 U.S.C. 290dd-3, 42 U.S.C. 290ee-3, or the regulations adopted under those statutes.” [these statutes have now been “omitted” but used to deal with mental health and substance abuse records] (34-43-1-10)
- medical records of a “communicable disease or other disease that is a danger to health” (16-41-8-1; 34-43-1-12)
- medical records made in connection with volunteer firefighting injuries (4-15-10-7; 36-8-12-10.5; 36-8-12-10.7)
- medical records from employer-mandated medical examinations of employees as a precondition to employment (22-9-5-20)
- medical records from baseline statewide physical examination for police and firefighters (36-8-8-19)
- when a hospital responds to a subpoena for the production of its medical records, the certified copies of “hospital medical records” must be placed in an envelope with the words “Confidential Medical Records” written on the envelope (34-43-1-8).
If someone knows of such a statute, please let us know so we can pass it along to the readers.
In summary, if one of the above statutes declares the specific type of medical record confidential, then exclusion is automatic under A.R. 9(G)(2)(b) and all a party need to do is file the AR 9(G)(5) Notice on white paper citing the statute, and then file the medical records on green paper.
But for the majority of medical records that are filed in Indiana courts, the only way to exclude them from public access and file on green paper would be via the four-part process in AR 9(G)(4).
Q2: What role does HIPAA play as far as confidentiality in state court judicial proceedings?
Q2 SHORT ANSWER: HIPAA protects privacy interests in Protected Health Information, but does not declare all medical records confidential in all situations so the answer is, “it depends.”
Q2 LONG ANSWER: In most court proceedings, it is unlikely that HIPAA will provide the grounds for green paper filings.
In most cases, the medical records will have been obtained by a valid, signed release from the patient. In this circumstance, HIPPA does not prohibit anything regarding future disclosure. Thus, the only way to exclude them from public access and file on green paper would be via the four-part process in AR 9(G)(4).
If the medical records were obtained via 45 C.F.R. § 164.512(j) (“Uses and disclosures to avert a serious threat to health or safety”), such as, for example, guardianship proceedings, disclosure is permitted. If these records do not involve mental health records, then only way to exclude them from public access and file on green paper would be via the four-part process in AR 9(G)(4).
If medical records are obtained via subpoena or some other court-ordered mechanism, 45 C.F.R. § 164.512(e) still allows those medical records to be used in litigation and only requires the party seeking the record to seek a “qualified protective order” which “(A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and (B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.”
But as we know, the Indiana Supreme Court has declared that a protective order only governs the exchange of information between the parties during discovery and does not govern what is thereafter filed in open court. Therefore, the parties must use the four-part test in AR 9(G)(4) to exclude the records.
Note that this approach—not automatic exclusion even though the HIPAA Qualified Protective Order was issued—is consistent with how federal courts treat medical records. For example, the court in Karpenski v. American General Life Companies, LLC, 2013 WL 5588312 (W.D. Wash. 2013), noted that the HIPAA Qualified Protective Order issued during discovery did not govern whether the documents would thereafter be filed under seal. Instead, to seal documents filed in federal courts, “the party must articulate compelling reasons supported by specific factual findings, that outweigh the general history of access and the public policies favoring disclosure, such as the public interest in understanding the judicial process.” The Karpenski court ultimately concluded that the overall protections in HIPAA provided the “compelling reasons” needed to seal documents. Cf. Womack v. Delaware Highlands AL Services Provider, LLC, 2012 WL 1033384 (D. Kan. 2012).
Ind. Decisions - A commentary on today's Court of Appeals opinion
Kolyann Williams v. State: a textbook lesson on why you MUST always make an Article 1, Section 11 claim with your 4th Amendment claim.
Today's opinion on rehearing from the Indiana Court of Appeals is a great reminder to practitioners that when raising a claim under the Fourth Amendment, it is imperative to also raise a separate claim under Article 1, Section 11 of the Indiana Constitution. Our courts have made clear that Indiana's search and seizure provision is not treated identical to its federal counterpart. The U.S. Supreme Court's decision in Heien has no impact on a defendant's claim under
Indiana constitutional law. Had Williams made a separate claim under Article 1, Section 11 of the Indiana Constitution in this case, he may have been successful. Finally, merely mentioning Article 1, Section 11 as part of your Fourth Amendment argument is not enough; a full analysis of the claim must be laid out separately from the Fourth Amendment argument.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 3 NFP memorandum decisions)
For publication opinions today (1):
In Kolyann Williams v. State of Indiana, a 6-page opinion, Judge Bradford writes:
On December 9, 2014, in a published opinion, we reversed Appellant-Defendant Kolyann Williams’s conviction for Class A misdemeanor marijuana possession. Williams v. State, 22 N.E.3d 730 (Ind. Ct. App. 2014). We reversed Williams’s conviction on the basis that the traffic stop that led to the discovery of marijuana in his possession was based on the police officer’s mistaken belief that an infraction had occurred. Id. at 735. Appellee-Plaintiff the State of Indiana now petitions for rehearing, arguing that the United States Supreme Court’s recent decision in Heien v. N. Carolina, 135 S. Ct. 530 (2014), requires a different result. Heien held that reasonable mistakes of law, as well as fact, can give rise to reasonable suspicion under the Fourth Amendment. Id. at 536. Because we agree with the State, we grant its petition for rehearing and affirm the judgment of the trial court. * * *NFP civil decisions today (0):
In conclusion, while we agree that Williams was committing no infraction at the time he was stopped by Officer Packard, Officer Packard had a reasonable belief that he was, thereby justifying the stop. Consequently, the evidence seized as a result of the stop need not be suppressed. We grant the State’s petition for rehearing and, reversing our prior disposition, affirm the judgment of the trial court.
NFP criminal decisions today (3):
Ind. Decisions - Supreme Court issues five opinions today
In Lora Hoagland, On Behalf of Herself and All Others Similarly Situated v. Franklin Township Community School Corp., an 18-page, 5-0 opinion, Justice David writes:
After a budget deficit, Franklin Township Community School Corporation decided to discontinue transportation services to and from school for the majority of its public school students. A class action suit was brought by the parents of students who attend public schools in Franklin School Corporation. The plaintiffs sought a declaratory judgment that discontinuing transportation is prohibited under the Indiana Constitution. * * * IND. CONST. art. 8, § 1. However, the express terms of the Education Clause grant the duty of developing a system of common schools to the General Assembly. Therefore, the body of law that establishes our system of common schools is based upon the policy decisions of our legislature. This Court has neither the ability nor the duty to establish requirements for this system of common schools, aside from determining when an action clearly violates a constitutional mandate. In the case before us today, we find no constitutional requirement for school corporations to provide transportation to and from school. Since Franklin School Corporation did not violate a constitutional mandate, we affirm the trial court’s grant of summary judgment in favor of Franklin School Corporation. * * *Detona Sargent v. State of Ind., and the Consolidated City of Indianapolis/Marion Co., and the Indianapolis Metro Police Dept, an 11-page, 3-2 opinion, Justice Rucker writes:
Conclusion. We summarily affirm the Court of Appeals in holding that the Indiana Tort Claims Act was inapplicable to Hoagland’s constitutional claim. We also summarily affirm the Court of Appeals in holding that the Education Clause does not provide a private right of action to pursue monetary damages. We now hold that Article 8, Section 1 of Indiana’s Constitution does not mandate school corporations to provide transportation to and from school. Accordingly, we affirm the trial court’s grant of summary judgment in favor of Franklin School Corporation.
Rush, C.J., Dickson and Massa, J.J., concur.
Rucker, J., concurs in result only.
On cross-motions for summary judgment the trial court deemed a vehicle forfeited and awarded the same to the Indianapolis Metropolitan Police Department. However the undisputed facts disclose the vehicle’s owner is entitled to possession. We therefore reverse the judgment of the trial court. * * *In In the Matter of: Christopher A. Hollander, a 5-page per curiam opinion in an attorney disciplinary action, the Court writes:
By failing to demonstrate that Sargent was “in possession” of the vehicle as contemplated by Indiana Code section 34-24-1-1, the State was not entitled to forfeiture of the vehicle. The trial court thus erred by entering summary judgment in the State’s favor and denying Sargent’s motion.
Conclusion. We reverse the judgment of the trial court and remand this cause with instructions to enter an order granting summary judgment in Sargent’s favor.
Rush, C.J., and Dickson, J., concur.
David, J., dissents with separate opinion in which Massa, J., joins.
Massa, J., dissents with separate opinion.
David, J., dissenting.
I respectfully dissent, as Detona Sargent had constructive possession of her 1996 Buick Century when she stole four iPhones from her employer on September 16, 2011. This Court has long held that, in order to prove constructive possession, the State must show that the defendant has both the intent and capability to maintain “dominion and control” over the property in question. See, for example, Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Though at the time of the thefts Sargent was not physically occupying her vehicle, she exerted “dominion and control” over the Buick, as evidenced by her instruction to her co-worker to return the vehicle by the end of her shift so she could drive home. Thus, she constructively possessed the Buick. * * *
Massa, J., dissenting.
Notwithstanding my admiration for the majority’s desire to do justice in this case, I fully join Justice David’s dissent. I write separately to offer an additional comment about discretion. * * *
This overreach has now, it seems, prompted our Court to grant some modest, almost equitable, relief to the excessively punished thief via the possible return of a twenty-year-old Buick. It brings to mind the often quoted maxim that hard cases make bad law. * * *
Our Constitution and statutes vest police and prosecutors with great power to initiate proceedings that can ultimately deprive liberty and divest property where certain crimes are proven. State and federal legislative bodies have provided the special tools of RICO and forfeiture largely to target organized crime and narcotics trafficking.4 These tools are not without their critics, and their misuse invites further scrutiny. Moreover, when authorities overreach, the judiciary is tempted to impose remedies that do justice in a particular case but may do harm to the law over time.
The answer, sometimes, to Rolfe’s truism about hard cases, is to not bring them in the first place.
 Because we resolve this case on other grounds we decline to address Sargent’s statutory construction or Indiana constitutional claim.
We find that Respondent, Christopher A. Hollander, engaged in a course of attorney misconduct in connection with his efforts to patronize a prostitute. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least one year without automatic reinstatement.In Drakkar R. Willis v. State of Indiana, a 5-page, 5-0opinion, Justice Rucker writes:
[ILB: The opinion is worth reading in full]
In sum, at best the record shows that Willis was running in a field near a recreation center sometime after the burglar alarm was activated. To be sure this conduct may have been considered suspicious, and perhaps Willis may even have had the opportunity to interfere with the possession and use of the recreation center without the owner’s consent. But “[a] reasonable inference of guilt must be more than a mere suspicion, conjecture, conclusion, guess, opportunity, or scintilla.” Mediate v. State, 498 N.E.2d 391, 393 (Ind. 1986); see also Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001) (“An inference cannot be based upon evidence which is uncertain or speculative or which raises merely a conjecture or possibility.” (quotation and alteration omitted)). It appears to us that the evidence in this case is insufficient to sustain Willis’ conviction for criminal trespass.In Charles Moore v. State of Indiana, a 16-page, 5-0 opinion, Justice David writes:
Conclusion. We reverse the judgment of the trial court.
Charles Moore was charged with the murders of Alejandro Tinoco and Jazmin Conlee. After Moore was found guilty of both murders, the jury recommended a sentence of life without the possibility of parole for the murder of Conlee. Moore was ultimately sentenced to sixty-five years for the felony murder of Tinoco and life without parole for the murder of Conlee. Moore appealed solely on the basis that there was insufficient evidence for his convictions. Specifically, Moore asserts that the incredible dubiosity rule should be applied. The incredible dubiosity rule allows the court to impinge upon the jury’s assessment of witness credibility when the testimony at trial is so contradictory that the verdict reached would be inherently improbable. For the incredible dubiosity rule to apply, the evidence presented must be so unbelievable, incredible, or improbable that no reasonable person could ever reach a guilty verdict based upon that evidence alone. Moore argues the application of this rule is warranted because no reasonable jury could have found him guilty beyond a reasonable doubt given the inconsistent testimony among three of the State’s primary witnesses. We disagree. Here, direct and circumstantial evidence was presented through the testimony of multiple witnesses and the presentation of physical evidence. This evidence was sufficient for a reasonable jury to find Moore guilty beyond a reasonable doubt for both murders. Under the facts of this case, the incredible dubiosity rule is inapplicable, and the jury’s verdict must stand. Moore’s convictions and sentence are affirmed. * * *
The incredible dubiosity rule is inapplicable in the present case and cannot serve as grounds for overturning the jury’s verdict. Furthermore, based upon the evidence presented at trial, a reasonable jury could have found each element of murder and felony murder beyond a reasonable doubt. Accordingly, there was sufficient evidence for Moore’s convictions. The convictions and sentences entered by the trial court are affirmed.
Law - "Ted Cruz and Paul Ryan Forgot This Key Detail About Running for President"
Remember the 2013 COA opinion where the LaPorte County Convention and Visitors Bureau had held a press conference unveiling their new brand name, but when they went to register the domain name the next day, someone had beat them to it? So the Bureau sued, and lost.
Mother Jones has a May 16th story that begins:
There's a long checklist of tasks a politician must complete before she or he can run for president. You've got to court the top political consultants to your cause. Wine and dine at party fundraisers in New Hampshire. Familiarize yourself with all 99 damned counties in Iowa. Maybe write a book. But in the modern age, securing an online presence is near the top of the list.
The first thing candidates have to do to stake their claim on the internet is purchase all relevant web domain names, including any combination of the candidate's name and the election year.
Ind. Gov't. - "HIV testing can be hard to come by in many areas"
Maureen Hayden of CNHI reports that:
INDIANAPOLIS — At the epicenter of the largest outbreak of HIV in state history, one of the first barriers that health officials face is finding out who’s infected.
Testing for the virus that causes AIDS has emerged as a critical issue in Scott County. Local doctors say residents who need to be tested are afraid of the stigma associated with the disease, or of finding out the results.
Even if they are so inclined, those most in danger of contracting the virus find their options for testing are limited. * * *
Public health experts have described it as the worst single outbreak of HIV in Indiana history.
But its spread is obscured by a lack of testing.
Of Indiana’s 92 counties, only 23 have centers where people enrolled in Medicaid or who have no insurance can be tested for HIV at little or no cost.
Scott County’s health department doesn’t offer state-funded tests for HIV. * * *
[Dr. Shane Avery, a local physician] said one of his patients drove 60 miles round-trip last week to the nearest facility.
Travel wasn’t the only problem. As the patient sat in a crowded waiting room, her name was called. So was the reason for her visit, Avery said, in apparent violation of federal health privacy rules.
Avery said he worries that word of that encounter will spread and make people who’ve been exposed to the virus even more reluctant to be tested.
“The stigma of HIV is huge,” he said. “And in a small town, it’s even worse. Once you have it, you’re afraid that everybody knows it.”
The lack of resources in rural communities reflects a larger issue, said Rep. Tim Brown, R-Crawfordsville, an emergency room physician and former chairman of the House Public Health Committee.
“It’s not a testing problem, it’s a cost problem,” Brown said. “County health departments have been coming to us for years, telling us they don’t have enough money.”
Each HIV test costs providers about $70 to administer the screening and verify the results. Many rural health departments don’t have the financial resources to offer the test for free.
Ind. Gov't. - "Crossing the Line -- Governor's veto"
Dan Carden of the NWI Times had an interesting article last weekend, part of a series comparing Indiana and Illinois laws and customs:
This week: Governor's veto.ILB: Certainly a lot of legislative power is given to the Illinois Governor in their constitituion...
As the Indiana General Assembly works toward its April 29 adjournment, lawmakers soon will begin sending piles of legislation to Gov. Mike Pence to be signed into law or rejected with a veto.
Look for Pence to sign just about everything he's presented, since his veto power is extremely weak compared to most other governors.
The Indiana House and Senate can enact a law despite the governor's objection with the approval of just a simple majority (50 percent plus one) in each chamber — the same number of legislators required to pass the proposal in the first place.
In Illinois, it takes a three-fifths majority in each chamber to override a governor's veto.
Gov. Bruce Rauner also has reduction veto authority, enabling him to cut specific spending items from the state budget, and an amendatory veto, allowing him to change the text of legislation and send it back to the General Assembly for further consideration.
Courts - "Number of Courts Rejecting Insurance Adjuster Negligence Claims Grows"
Some quotes from an article by Steven Pitt in Claims Journal:
The majority of courts that have considered the question of whether an independent insurance adjuster can be held liable for negligence to policyholders arising from the administration of claims have rejected the cause of action of adjuster negligence. Until recently, 13 jurisdictions had found that insurance adjusters did not owe independent duties to policyholders (Alabama, Arizona, California, Florida, Mississippi, Missouri, Nevada, New York, North Carolina, Pennsylvania, South Carolina, Texas and Vermont). * * *
More recently, in Lodholtz v. York Risk Services Group, Inc., 2015 WL 542815 (7th Cir. 2/11/15), interpreting Indiana law, the Seventh Circuit U.S. Court of Appeals predicted that under Indiana law a claim adjuster owed no legal duty to the insured. * * * This conclusion comported with the general principles of Indiana agency law under which found that an agent (the insurance adjuster) was not liable for the actions taken on behalf of the principal (insurance company). The Court noted that its decision comported with the logic underlying insurance liability in Indiana. In Indiana, insurer liability for negligence was premised on the unique nature of insurance contracts. Because the insurance adjuster was not a party to the contract, the only adjuster liability was premised on the adjuster’s contract with the insurance company and not the insured and was therefore limited to the insurance company. The Court concluded that the relationship between the adjuster and the insured was sufficiently attenuated by the insurer’s control over the adjuster to be an important factor that militated against imposing a further duty on the adjuster being owed to the insured. Because the adjuster was not a party to the insurance contract, the adjuster was not subject to any implied covenant of good faith and fair dealing owed to the insured.
Ind. Gov't. - More on: Changes to limit public access to records law buried within massive "Education deregulation" package
... allow government agencies to charge a fee to members of the public, the media and anyone else for a public records request that takes more than two hours to fulfill. The measure would allow a governmental office to charge the hourly salary of the employee handling the search or $20 per hour, whichever is less.See this follow-up post, also from March 15th.
Ind. Gov't. - "Who's in charge? Misguided effort to channel government power"
HB 1351 is currently in the Senate Tax & Fiscal Policy Committee and has not been scheduled for a hearing as of this date. The ILB last wrote about it on Feb. 3rd, in a post titled "Update on - Senate committee to consider 'no more stringent' on steriods bill."
On March 19th the Fort Wayne Journal Gazette had an editorial headed "Who's in charge? Misguided effort to channel government power."
Ind. Courts - Boyer Appointed New Allen Superior Court Small Claims Court Magistrate
From the news release:
Fort Wayne, Ind. – Thomas P. Boyer has been named the newest Magistrate Judge of the Allen Superior Court Small Claims Division. Boyer replaces Magistrate Jerry Ummel, who recently announced his retirement after 27 years on the bench. 17 candidates were interviewed.Earlier ILB post about the vacancy here, from Feb. 25th.
“The Small Claims Division handles 26,000 new filings every year,” said Allen Superior Court Judge Craig J. Bobay. “Handling that many cases in a timely and efficient manner is a continuous challenge. To find a candidate as experienced as Tom Boyer is of enormous benefit to Small Claims and to the people it serves.”
Boyer currently serves as a Magistrate for the Allen Superior Court Family Relations Division, where he has been on the bench since 1999. Prior to becoming a judicial officer, Magistrate Boyer was a founding partner in the law firm of Avery Boyer & VanGilder.
Monday, March 23, 2015
Ind. Gov't. - More on: BMV higher-ups allegedly knew the fees were wrong, but hushed it up and lied under oath [Updated]
In response to the Sunday Indianapolis Star story (which was quoted in this ILB post), the Indiana BMV has put out a two-page, single-spaced document alleging that: "there are certain factual errors and omissions that must be pointed out for Hoosiers to be able to make their own informed judgments about the story."
You may read it for yourself.
[Updated 3/24/15] Several ILB readers have observed that the BMV Fact Sheet is most interesting in the issues it chooses not to address.
Ind. Gov't. - Even more on: Is the General Assembly subject to the public records law?
This March 18th ILB post exclusively reported that the Chief Counsel to the House Republican Caucus had on March 16th denied the second, more specific request filed by the Energy and Policy Institute, a request refined, per the earlier PAC option, to identify the emails sought with "reasonable particularity," and that this new request had been met with a 3-page March 16th response from the Chief Counsel to the House Republican Caucus, again denying the request, asserting broadly that the Access to Public Records Law does not apply to the General Assembly.
Today the Energy and Policy Institute and the Citizens Action Coalition, by their attorney, William Groth, have submitted a new formal public access complaint against Rep. Koch and the House Republican Caucus:
The Respondents, Representative Eric Koch and the Indiana House Republican Caucus, by their officers, agents, and representatives, violated the Indiana Access to Public Records Act on March 16, 2015 by denying the Complainants' enclosed public records request on the grounds, inter alia, that it is "not reasonably particular" because "the request covers over six months of time and numerous entities, names, and phrases," and that it requests "work product" of the "individual members and partisan staffs of the General Assembly," without explaining how the requested records are "work product." (See Attached Exhibits A-B).
Contrary to the Respondents, the Complainants' public records request is reasonably particular because it provides the Respondents with enough information to enable them to search for, locate, and retrieve the requested records, and, pursuant to the Public Access Counselor's instructions regarding requests for email communications, the request names a specific sender, recipient, and date frame. Furthermore, emails from outside groups to legislators are not, as a matter of law and statutory construction, "work product" of the legislators and! or their partisan staffs in that, among other reasons, they were not collected or prepared in anticipation of litigation.
While the Respondents additionally asserted that they are not subject to the Indiana Access to Public Records Act, this assertion has already been considered by the Public Access Counselor in 15-FC-69, dated March 6, 2015. The Complainants thus only seek the Public Access Counselor's opinion regarding the work product and reasonable particularity grounds cited by the Respondents in support of their denial.
The Complainants seek priority status for this complaint pursuant to 62 lAC 1-1-3(3) because the records are sought, inter alia, for the purpose of presenting them to the public in legislative proceedings regarding House Bill 1320 and similar related legislation. [ILB emphasis]
Ind. Gov't. - "Lawmakers encourage `delicate balance' on public access"
That is the headline to Chelsea Schneider's Sunday story in the Evansville Courier & Press. Some quotes:
Indiana has a state law governing the release of public documents.The story continues:
But is the Indiana General Assembly required to follow it when requests are made for a lawmaker’s correspondence? The answer varies, depending on who you ask.
The question arose this month after the Indiana House Republican Caucus declined to fulfill a request for emails and other records between a state lawmaker and energy companies regarding a bill he proposed.
The caucus’ lawyer told the Energy and Policy Institute, which was seeking the documents, that House tradition and case law in Indiana found the state’s Access to Public Records Act didn’t apply to the body.
“In determining the rules of its proceeding, the House has a long history of treating all correspondence as confidential,” according to the letter sent by the caucus’ chief counsel, Jill Carnell, and reported by the Indiana Law Blog.
Luke Britt, the state’s Public Access Counselor, disagreed in an opinion he issued after the Energy and Policy Institute submitted a complaint to his office over the denial of records. But lawmakers on both sides of the aisle say messages among lawmakers and constituents need to be handled with care.
The correspondence could have provided insight to the energy bill filed by state Rep. Eric Koch, who heads the House’s Utilities, Energy and Telecommunications Committee.
But House Speaker Brian Bosma said a keystone of the General Assembly is open communication with constituents, and that lawmakers can turn into a “point of last resort” when family tragedies or dire circumstances occur.Tom LoBianco of the IndyStar wrote today in a story headed "Sunshine Week filled with lessons for Indiana," that:
When asked if the same exception should be made for correspondence among lawmakers and registered lobbyists, Bosma said he didn’t know how the General Assembly could make that distinction.
Last week was Sunshine Week — the week dedicated to getting more information out from the darkness and to the public — and here’s how some Indiana politicians responded:ILB: Maybe, maybe not, re some lawmakers exercising more caution if they knew their emails would be public. Consider what some politicians have put in tweets...
* * *
- House Republicans decided that state lawmakers are flatly exempted from public records laws — meaning their communications on public equipment, while earning a public salary, are likely to stay private as long as they like.
- And Gov. Mike Pence said he might release his calendar, maybe. His staff has denied a previous request, and previous Indiana governors have hidden behind a court ruling saying they are under no obligation to release their calendars. (Governors in many other states, including Massachusetts and Maryland, have regularly released calendars in response to public records requests.)
Consider this: Former Florida Gov. Jeb Bush publicly released his emails from his time as governor two months ago. A noble gesture, to be sure, but also one largely mandated by law: Florida’s public records laws are probably the most comprehensive in the nation.
In other words, his emails were going to make it into the public light anyway. And, because most good Florida politicians know their emails are “public records” that can actually be obtained by the public, most keep any wild or inflammatory statements out of email.
Contrast that with Indiana, where state officials rarely have to give out internal communications. Emails obtained by The Associated Press in 2013 contained some absolute doozies specifically because Indiana politicians assume their email communications are not public.
Statements from then-Gov. Mitch Daniels suggested that his staff “disqualify the propaganda” in Indiana university courses, specifically liberal Howard Zinn’s writings. And then- Superintendent of Public Instruction Tony Bennett wrote extensively, in email, about his efforts to change Christel House Academy’s “A-F” letter grade from a “C” to an “A”.
If Indiana had Florida-style public access laws, it’s virtually guaranteed that politicians wouldn’t put such things in their emails. But when those emails are publicly exposed, they tend to be much more candid.
Ind. Courts - More on: "Disciplinary commission recommends action against Floyd County Prosecutor over David Camm case" And who should pay?
State officials allege that Floyd County Prosecutor Keith Henderson violated rules of professional conduct by attempting to secure a book deal about the David Camm triple-murder case — and later by seeking taxpayer money to fund his defense after state investigators launched an ethics probe.ILB: SB 507, which is now in the House Judiciary Committee, would appear to be relevant to cases such as this. The digest:
On Thursday, the Indiana Supreme Court Disciplinary Commission accused Henderson of lying about the book deal, then being deceitful in seeking taxpayer funds to pay for his ethics defense.
The commission asked the Indiana Supreme Court to discipline Henderson for professional misconduct and force him to pay restitution and other costs. The complaint is the first step in a continuing process to resolve the matter.
Henderson, who was re-elected last November, said he disagrees with the commission's finding and is glad the issues will get a hearing. "I don't believe there was any impropriety," he said.
The 25-page complaint, however, is a resounding rebuke to a prosecutor who has vigorously denied any wrongdoing. He also repeated his assertion that he thought it was proper for Floyd County government to pay $27,539.55 to defend him against the grievance.
Many county residents wondered whether the ethics probe had been dropped because such inquiries remain confidential unless the commission decides to file a complaint, as it did in this case. The issue was last mentioned at a Floyd council meeting in October 2012.
Attorney and judicial discipline complaints. Permits a prosecuting attorney and a county public defender (including a contract public defender) to seek reimbursement from the state for reasonable attorney's fees incurred in defending against a charge of attorney misconduct if: (1) the alleged misconduct relates to the person's official duties or status as a prosecuting attorney or public defender; (2) the charge of misconduct does not result in a sanction (except for a private reprimand); and (3) the attorney general approves the reimbursement.Another might be the Antonio Smith v. State of Indiana case, which is pending before the Supreme Court. This was a Nov. 24, 2014 COA opinion which included at footnote 2: "Thus, we direct the Clerk of this Court to send a copy of this opinion to the Disciplinary Commission. We also note that instances of prosecutorial misbehavior continue to come before us on appeal notwithstanding our admonishments."
Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 5 NFP memorandum decisions)
For publication opinions today (0):
NFP civil decisions today (2):
NFP criminal decisions today (3):
Ind. Courts - "Dyer dentist seeking more than $15 million in lawsuit against state"
The NWI Times reported March 21st:
HAMMOND | The owner of Dyer Family Dentistry is seeking more than $15 million from the state of Indiana and some of its regulatory bodies claiming they unjustly tried to keep him from doing business as a licensed dentist.The ILB has checked the Marion County docket and located Atcha v. Ind. State Bd. of Dentistry (49D03-1312-MI-044739). It appears that Marion Superior 3 Judge Patrick McCarty presided, and that an order signed and filed Dec. 31, 2014 was issued Jan. 8, 2015.
A Chicago law firm representing dentist Irfan Atcha filed the lawsuit in federal court Friday against the state, the Indiana Professional License Agency, the Indiana State Board of Dentistry and others, including Cindy Vaught, the state dentistry board's director. * * *
The lawsuit said that Atcha had developed an "All-on-4" implant technique, which it claims was unique to the Northwest Indiana region and was a "significant advancement" over traditional methods of teeth replacement and implantation.
Atcha advertised to the public, but on March 16, 2012, the state board filed a formal administrative complaint against Atcha claiming alleged multiple violations of its advertising regulations, according to the lawsuit.
The lawsuit said the board wrongfully found Atcha had violated some advertising regulations and on Nov. 19, 2013, placed him on probationary status. On Dec. 31, 2014, the Marion County Superior Court found the actions of the state defendants were unconstitutional and violated Atcha's First Amendment rights, according to the lawsuit.
The suit claims the defendants have no actual evidence Atcha misled or deceived anyone. It claims the state was trying to protect the market share of other dentists in an scheme to deprive Atcha of the right to do business and enrich a competitor. The lawsuit said as a direct result of the alleged "constitutional deprivation, Atcha has suffered economic and non-economic losses."
The ILB hopes to post a copy of the Marion Superior Court order... [Update] Here it is, the 12-page opinion by Judge McCarty in Atcha v. Ind. Prof. Lic. Agency.
In addition, the ILB has obtained a copy of the complaint filed Friday in the ND Indiana.
Ind. Gov't. - "Local corrections funds in doubt: House and Senate at odds on money needed"
Niki Kelly wrote in a lengthy story in the Sunday Fort Wayne Journal Gazette. Some quotes:
INDIANAPOLIS – The enthusiasm for a major shift away from jailing low-level offenders to local treatment and supervision instead is clear at the Statehouse.
But will the money be there when the budget is finalized at the end of April?
It is the final question in a criminal justice overhaul that has been in the works for five years.
“I can’t for the life of me believe it’s going to be funded the way it needs to be,” Allen Superior Court Judge Fran Gull said. “This is expensive work we are doing. If the goal is to keep people locally, they have to give us resources.”
Gov. Mike Pence’s initial budget proposal contained no new money for community corrections or other local treatment programs.
Instead, he focused on building prisons – exactly the opposite of what lawmakers wanted when they passed the criminal code reform in 2013. The initiative was phased in, and judges are now starting to sentence for crimes committed under the new regime. * * *
[This year's] House Bill 1006 provides the framework to help local communities absorb thousands of low-level offenders who will no longer go to the Indiana Department of Correction.
Many of these offenders have drug addictions, mental illnesses or both, Gull said.
The bill establishes the Justice Reinvestment Community Grants Program, to be administered by the Indiana Judicial Center. Grants can be used to help develop alternatives to incarceration at the county and community levels but can’t be spent on capital projects.
The money behind the bill is in the state budget. House Republicans set aside $30 million for the reinvestment grants in fiscal year 2016 and $50 million in fiscal year 2017.
One goal is to have all counties participating in community corrections by 2020. Currently, 84 counties do. The eight that do not include Kosciusko County in northeast Indiana.
Rep. Greg Steuerwald, R-Danville, said that as many as 6,300 inmates will now be handled on the local level. And programs must be in place to help counties.
“Without funding, it’s just not going to work. It’s just that simple,” he said.
The $80 million in the House Republican budget is almost guaranteed to go down in the Senate version when it is unveiled April 9 by Senate Appropriations Chairman Luke Kenley, R-Noblesville.
He said he felt the House put full funding in pretty quickly, and he will likely look at a slower, phased-in approach.
“It’s a sea change in terms of where your prisoners are going to be – whether they are actually going to be a prisoner or not. But it’s going to take time for this to roll out,” Kenley said. “We’re going to fund where we think the situation will be for the next two years. At the end of that time, we’ll see how much we are doing and whether the demand is greater.”
Ind. Decisions - Transfer list for week ending March 20, 2015
Here is the Clerk's transfer list for the week ending Friday, March 20, 2015. It is two pages (and 26 cases) long.
Three transfers were granted last week. All involved transfers with opinions:
- Ball State University v. Jennifer Irons | In Re the Marriage of: Jennifer Irons and Scott Irons - The Supreme Court granted transfer with opinion March 18th, reversing the trial court - here is the ruling.
- Thomas H. Kramer, Member and Manager of Domus Property Investments, LLC v. Mark Kramer, and Domus Property Investments, LLC - The Supreme Court granted transfer with opinion March 17th -see the ILB summary of the decision here.
- In the Matter of the Civil Commitment of T.K. v. Department of Veterans Affairs, Richard L. Roudebush VA Medical Center - The Court granted transfer with opinion March 19th in this opinion reversing the involuntary civil commitment.
Courts - More on: Wisconsin voter ID law petition is pending before the SCOTUS; why that is important in Indiana [Updated]
WASHINGTON -- The Supreme Court refused Monday to hear a major challenge to Wisconsin's voter ID law, delivering a victory to Republicans who favor tougher election laws.Election law scholar Rick Hasen writes in a post titled "A Blessing in Disguise? The Supreme Court’s Refusal to Hear Wisconsin Voter ID Case."
The decision is a setback for civil rights groups that contend the law could disenfranchise hundreds of thousands of residents who lack proper ID — particularly racial minorities, seniors, students and people with disabilities.
And it turns both sides' sights on Texas, where a similar statute is pending before a federal appeals court. Eventually, the justices are considered likely to resolve the festering issue.
[Updated] See this coverage by Warren Richey of The Christian Science Monitor.
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, March 22, 2015:
- Ind. Gov't. - BMV higher-ups allegedly knew the fees were wrong, but hushed it up and lied under oath
- Ind. Gov't. - "Yorktown changes ordinance after ACLU case"
- Environment - Still more on: Who approved stealth project to build banquet center on Dunes State Park prime beachfront? Who knew?
- Courts - Failure to read electronic docket causes AT&T lawyers to miss essential deadline
- Courts - Wisconsin voter ID law petition is pending before the SCOTUS; why that is important in Indiana
- Ind. Decisions - Supreme Court answers certified question from federal bankruptcy court
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 3/23/15):
- No oral arguments currently scheduled.
Next week's oral arguments before the Supreme Court (week of 3/30/15):
Thursday, April 2
- 9:00 AM - Thomson, Inc. n/k/a Technicolor USA, Inc. v. Insurance Company of North America n/k/a Century Indemnity Company, et al. ( 49A05-1109-PL-470) The Marion Superior Court issued partial summary judgment orders addressing the duty to defend, defense costs, and interpretation of insurance policy language. The Court of Appeals affirmed in part, reversed in part, and remanded. Thomson v. Insurance Co. of N. America, 11 N.E.3d 982 (Ind. Ct. App. 2014). Thomson and an insurance company have each petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was a June 19, 2014, 88-page, 2014 COA opinion.
- 9:45 AM - Antonio Smith v. State of Indiana (71A04-1312-CR-609) Following a jury trial, the St. Joseph Superior Court found Smith guilty of burglary. The Court of Appeals reversed, finding Smith’s conviction had been obtained through the State’s knowing use of perjured testimony. Antonio Smith v. State, 22 N.E.3d 620, 628 (Ind. Ct. App. 2014). The State has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was a Nov. 24, 2014 COA opinion which includes at footnote 2: "Thus, we direct the Clerk of this Court to send a copy of this opinion to the Disciplinary Commission. We also note that instances of prosecutorial misbehavior continue to come before us on appeal notwithstanding our admonishments."
- 10:30 AM - Indiana Insurance Company v. Patricia Kopetsky (49S02-1502-PL-109) Indiana Insurance Company filed a complaint in the Marion Superior Court asking for a judgment declaring it has no obligation under its insurance policies to defend or indemnify Kopetsky against claims he knew a subdivision development contained contamination and sold lots to a builder without revealing the problem. The trial court found coverage and entered summary judgment for Kopetsky. The Court of Appeals affirmed in part, reversed in part, and remanded. Indiana Ins. Co. v. Kopetsky, 11 N.E.3d 508 (Ind. Ct. App. 2014), reh'g granted, 14 N.E.3d 850 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted petitions to transfer and has assumed jurisdiction over the appeal.
This week's oral arguments before the Court of Appeals (week of 3/23/15):
Monday, March 23
- 1:00 PM - Hunt v. State (---------) In November 2013, Jeffery Hunt and his father broke into the Elkhart home of an elderly couple, Don and Joan Neer. Hunt struck Don Neer on the head and body several times using a tire iron and his fists, causing Mr. Neer serious injury. Hunt and his father then looted the house, stealing among other things, guns, a television, and cash. Hunt eventually pleaded guilty to Class A felony robbery while armed with a deadly weapon resulting in serious bodily injury, Class A felony burglary, Class B felony conspiracy to commit burglary, and Class B felony criminal confinement. Hunt was sentenced to 50 years per Class A felony conviction and 20 years per Class B felony conviction, concurrent or consecutive, for a total of 120 years in the Department of Correction. The trial court found Hunt's criminal history, the age of the victims, the severity of Mr. Neer's injuries, and the egregiousness of the crime to be aggravating factors and the fact that Hunt accepted responsibility for his crime and showed remorse to be mitigating factors. Hunt appeals and argues that his sentence is inappropriate in light of the nature of the offense and the character of the offender. The Scheduled Panel Members are: Judges Baker, May and Mathias. [Where: Huntington University, Zurcher Auditorium/Merillat Centre for the Arts, Huntington, IN ]
Thursday, March 26
- 1:00 PM - In Re: The Guardianship of Sharon Izzo (53A05-1407-GU-320) In February of 2014, Indiana Adult Protective Services filed a verified petition for a guardianship over the person and estate of an incapacitated person, that person being 77-year-old Appellant Sharon Izzo. The trial court appointed both a guardian ad litem and a temporary guardian for Izzo after a first hearing, and then held a second hearing. At the second hearing, the trial court heard evidence that Izzo had been diagnosed with schizoaffective disorder, frontal lobe dysfunction, and mild dementia. The trial court also heard evidence that Izzo was unable to make appropriate personal and financial decisions. After the second hearing, the trial court appointed Elizabeth Ruh as guardian of Izzo's person and estate. Izzo claims on appeal that the evidence presented was insufficient to support the trial court's findings that she was incapacitated and a guardianship was necessary. Appellee the State of Indiana contends that sufficient evidence was presented to support the trial court's judgment. The Scheduled Panel Members are: Judges Riley, Robb and Bradford. [Where: Ivy Tech/Lafayette, Ivy Hall, 1301 Creasy Lane, Lafayette, IN]
Next week's oral arguments before the Court of Appeals (week of 3/30/15):
Monday, March 30
- 1:30 PM - Town of Zionsville v. Town of Whitestown (06A01-1410-PL-432) In 2014, under the auspices of the Indiana Government Modernization Act, the Town of Zionsville sought to reorganize with Perry Township, in Boone County. Between Zionsville and most of Perry Township lay the Town of Whitestown, which itself sought to annex portions of Perry Township and thus opposed the proposed reorganization efforts of Zionsville and Perry Township. Whitestown and Angel Badillo, a Perry Township resident, filed suit to stop the proposed reorganization, and Zionsville counterclaimed to stop Whitestown's annexation efforts. The trial court entered summary judgment in favor of Whitestown. However, voters approved the Zionsville-Perry Township reorganization during the pendency of the litigation. Zionsville now appeals. The Scheduled Panel Members are: Judges Bailey, Robb and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]
- 1:00 PM - Wells v. State (53A04-1402-CR-61) Andre Wells was convicted of killing his mother's husband. He argues on appeal that the trial court should not have admitted certain evidence against him, including evidence of his whereabouts around the time of the murder based on records of his cellphone location; wire recordings secretly made by someone who told police that Wells confessed the crime to him; and testimony that Wells initiated a "murder-for-hire" plot to have that person killed. The Scheduled Panel Members are: Judges Baker, May and Sr. Judge Barteau. [Where: University of Southern Indiana, Mitchell Auditorium/Health Professions Building, Evansville, IN ]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Sunday, March 22, 2015
Ind. Gov't. - BMV higher-ups allegedly knew the fees were wrong, but hushed it up and lied under oath
That is the take-away from the very long and devastating investigative story by Tim Evans and Tony Cook in today's Sunday Indianapolis Star. Here are just a few quotes, with emphasis added by the ILB, from the story's introduction:
Top officials at the Indiana Bureau of Motor Vehicles knew for years they were likely gouging Hoosier motorists with tens of millions of dollars in excessive and illegal fees for driver's licenses and other services.
But those officials chose to ignore or cover up the overcharges rather than refund the extra money and adjust to significant budget losses, an Indianapolis Star investigation has found.
The Star's investigation shows that numerous officials — including former BMV Commissioner R. Scott Waddell and his chief of staff — knew about potential overcharges for years. Yet in sworn testimony last year Waddell, claimed the mere possibility that the state might be overcharging customers was news to him and the entire agency.
"We were completely blindsided by it," he said.
State officials have portrayed the overcharges as an innocent mistake, but emails obtained by The Star show that two years before Waddell claimed the agency was blindsided, he received a spreadsheet from a deputy BMV director identifying 17 overcharges.
Additionally, one of Waddell's top deputy commissioners testified in a pending lawsuit that he urged Waddell and then-Chief of Staff Shawn Walters to conduct an independent audit of the bogus fees.
He said they refused.
One official said the BMV — which, like other state agencies at the time, was under pressure from then-Gov. Mitch Daniels to return cash to the treasury — did not want to refund the ill-gotten money because it would require a budget cut.
It's hard to overstate the gravity of those decisions.
Every day they hesitated to fix the problem, the BMV overcharges averaged more than $23,000, all of it coming directly out of Hoosier motorists' pockets. That's about $1,000 an hour, every hour of every day, for two long years.
By the time someone blew the whistle and a class-action lawsuit was filed in 2013, the state had over-billed Hoosiers more than $60 million going back to 2007.
It's being paid back now. But there's no indication in the records examined by The Star that BMV leadership had any intention of fixing the fees until backed into a corner by the lawsuit. Instead, they hushed their internal critics, insisting the fees were accurate, despite the findings of a yearlong study.
Though discussed within the BMV, the overcharges didn't come to light publicly until the first class-action lawsuit was filed in March 2013 by Irwin Levin of the Indianapolis law firm Cohen & Malad. Only then did the BMV approve an audit of its fees. And it was months later, after the audit confirmed that many fees were, indeed, higher than allowed by law, that the agency finally fessed up to its price gouging and began to pay back motorists.
The full extent of the damage is not yet known. A second lawsuit alleges as much as $38 million more was wrongfully charged. The BMV is fighting that claim, but if true it would bring the total overcharges to about $100 million.
Despite all of this, no one from the state or BMV has apologized to customers. No one has taken responsibility or offered a clear explanation of what really happened. And no one has been publicly disciplined or fired.
On the contrary, several of the agency officials who shrugged their duties to uphold Indiana law remain at the BMV or in other state jobs. * * *
Current and former BMV officials declined to comment for this story. But more than a thousand pages of internal BMV documents, email messages and sworn video depositions examined by The Star offer a rare glimpse into the inner workings of the BMV's many political appointees as they grappled with internal reports of overcharges.
Before the overcharge debacle, the BMV appeared to be an amazing success story.
Ind. Gov't. - "Yorktown changes ordinance after ACLU case"
As the ILB reported in these posts from Oct. 1 and Oct. 3, 2014, federal district court Judge Richard Young on Sept. 30th, 2014 granted summary judgment to the Citizens Action Coalition (CAC) in their lawsuit challenging the constitutionality of the Town of Yorktown's ordinance: Whether the prohibition of door-to-door canvassing and solicitation after the hour of 9:00 p.m. or sunset, whichever is earlier, comports with the First Amendment.
Corey Ohlenkamp reports today in the Muncie Star-Press:
YORKTOWN – A lawsuit over door-to-door solicitation regulations has cost Yorktown around $90,000, and ultimately resulted in the town's ordinance being changed anyway. * * *
In October 2014, the U.S. District Court Southern District of Indiana granted a motion for summary judgment by the Citizens Action Coalition, and banned Yorktown from enforcing the ordinance that allowed solicitors "until dusk."
The town was ordered to pay $62,000 by the court, and additional fees and costs raised the total to almost $90,000. The payout by the town was handled in the January Yorktown Town Council meeting. * * *
Several audience members at the March meeting were taken aback by the amount of money that the town was fined for during the case. That reaction was also expressed by council member Rick Glaub.
"It was obviously an expensive mistake," said Glaub, who said he had reservations about fighting the CAC in the first place.
Council member Bob Ratchford, who was president at the time of the lawsuit, reminded the public that the actions taken by the town were on the recommendation of both the town's legal advisers, town manager and police chief when the issue first arose.
Environment - Still more on: Who approved stealth project to build banquet center on Dunes State Park prime beachfront? Who knew?
Updating two earlier ILB entries, the most recent from March 14th, Amy Lavalley of the Gary Post-Tribune reported March 19th in a long story headed: "Dunes state park pavilion partners say they're sensitive to concerns: Critics slam plan for 'giving up public land to a private concessionaire.'” Here are some quotes:
The partners behind the group renovating the pavilion at Indiana Dunes State Park and building an adjacent conference/banquet center include Porter County's former Republican Party chairman and the operators of County Line Orchard.
Deb Butterfield, spokeswoman for Pavilion Partners LLC, laid out on Thursday who's behind the partnership. The project has drawn criticism from the Porter County chapter of the Izaak Walton League because of plans for a banquet center on a public beach. * * *
Pavilion Partners will release drawings of the three-story, 30,000-square-foot banquet and conference center the week of March 30, and was planning a public meeting for input on the plans when the weather improves, Butterfield said.
"There was no intent on our part to be secretive about anything. We just weren't ready," she said, adding the renderings will let people "really envision how wonderful the project will be." * * *
Pavilion Partners formed a public/private partnership with the state park to renovate the pavilion. Some of that work, including new bathrooms in a separate building, will be complete by Memorial Day weekend, the start of the beach season.
Those plans include a snack bar and a fine-dining restaurant, which will have a liquor license.
Also part of the plan, and the part that's garnered criticism, is the banquet/conference facility, which is scheduled to be complete in the spring of 2016 and also will have a liquor license. The total cost of all the work is $3 million to $4 million; no tax dollars are being used.
Jim Sweeney, president of the Porter County chapter of the Izaak Walton League, has said the new building, "is giving up public land to a private concessionaire." * * *
The request for proposals for renovation of the pavilion, which went out three years ago and was provided by Phil Bloom, director of communications for the Indiana Department of Natural Resources, does not specify another structure but notes respondents "will be allowed the opportunity to propose limited additional developments and services. The IDNR is open to other possibilities proposed by the operator; however additional items in proposals submitted may or may not be considered in the lease negotiations." * * *
Chesterton attorney Michael Sawyier represented a local group that also put out a proposal to renovate the pavilion.
"Our proposal was to carry out this project under the auspices of a wholly public charity," he said. "The thing that galls me, and should gall anyone, is that the request for proposals never permitted any additional structure as Pavilion Partners is proposing. No one was talking about a convention center next to the pavilion when we were involved three years ago, and I'm very curious about when this idea emerged." * * *
Sweeney [of the Izaak Walton League] also has said he's concerned that opening the beach in the state park to private development could set a precedent to open up other beach land for development.
Friday, March 20, 2015
Courts - Failure to read electronic docket causes AT&T lawyers to miss essential deadline
"AT&T lawyers don’t read court docket, can’t appeal $40M patent verdict: Missed the deadline to appeal 2014's biggest win for a 'non-practicing entity,'" is the headline to this story today in ArsTechnica, reported by Joe Mullin, that begins:
A missed deadline means that AT&T lawyers can’t appeal a $40 million patent verdict against the telecom giant. Patent-holding company Two-Way Media LLC scored a $27.5 million verdict against AT&T last year following a jury trial in the Western District of Texas. The verdict, which got bumped up to $40 million after interest was added, was the largest patent verdict of the year for a non-competitor case.More from the story:
AT&T's lawyers at Sidley Austin want to appeal the case, but they can't because they blew a key deadline, according to a ruling (PDF) yesterday from the US Court of Appeals for the Federal Circuit.
After the verdict came out, AT&T's attorneys filed four motions for judgment as a matter of law, or JMOL motions. Such motions are common after trial. Three of AT&T's four JMOL motions were filed under seal. The judge denied the orders and sent out "notices of electronic filing" (NEF) labeled “ORDER GRANTING  Motion For Leave to File Sealed Document.”
In other words, those three electronic notices didn't clearly state that the orders had been denied, just that they could be filed under seal. It's the denial of the motion that starts the clock ticking for appeal.
AT&T's lawyers say they didn't realize their motions were actually denied until January 15, 2014, after the appeal period expired. They asked for an extension, but the judge refused. That ruling has now been upheld by an appeals court, so unless AT&T can get an en banc rehearing or attention from the Supreme Court—both major longshots—AT&T's case is over now.
Even though the electronic notice didn't give AT&T lawyers the heads-up they wanted, if they had actually checked the docket, they would have seen their motions were denied and the case was over. The notices were also sent to no fewer than 18 attorneys, and the orders were downloaded by legal assistants onto the law firm's internal system—but apparently no one read them.
Finally, the court issued properly labeled notices for the fourth unsealed motion and the bill of costs—two additional indications that the motions had been decided and the time to mount an appeal was upon them.
"In this era of electronic filing... we find no abuse of discretion in a district court’s decision to impose an obligation to monitor an electronic docket for entry of an order which a party and its counsel already have in their possession and know that the clerk at least attempted to enter," wrote Circuit Judge Kathleen O'Malley.Here is the opinion.
The appeals panel split 2-1, with Circuit Judge Timothy Dyk issuing a dissenting opinion.