The Indiana Law Blog

Thursday, March 18, 2010

Ind. Law - Governor signs more bills, including "guns at work" bill

The list of bills received by the Governor has been updated again; 18 more were signed by the governor today. no new bills have been received.

Included in the bills signed today was HEA 1065, the "guns at work" bill. The governor issued this accompanying message:

Considering the clear language of the Second Amendment of the U.S. Constitution, and the even stronger language of Article 1 Section Thirty-Two of the Indiana Constitution, protecting these rights as provided in HEA 1065 is appropriate. I also am compelled to give great weight to the overwhelming consensus of both Houses of the General Assembly as they passed this bipartisan statute. The law does contain ambiguities that the General Assembly may wish to refine at some future date, to avoid unnecessary litigation, but the understandable concerns raised against the bill do not suffice to justify a trespass on a fundamental right so expressly protected by our founding documents.

The last sentence of the governor's message, about ambiguity, itself appears to be ambiguous. One might read the message to mean the current exceptions in the bill cannot be justified, given the language of the two constitutions. Or, perhaps with more difficulty, it may be read to mean additional exceptions may be appropriate.

Posted by Marcia Oddi on March 18, 2010 03:08 PM
Posted to Indiana Law

Ind. Law - "Golf Cart Bill Doesn't Get a Vote in the Legislature"

WKVI Radio reported March 16, 2010:

A powerful Ft. Wayne legislator bottled up a bill that would have allowed counties to create an ordinance that would have allowed golf carts on some county roads.

According to Rep. Nancy Dembowski, a bill with overwhelming support in the House and Senate failed to come out of the Senate Transportation Committee because Chairman Tom Wyss wouldn't allow a vote on it. So, golf cart use at a number of lakes in Dembowski's district will still be prohibited.

The Representative said the bill would have authorized county officials to put language into an ordinance that would have, for instance, demanded a person have a driver's license to operate a golf cart on a county road. Other restrictions could have been a requirement for insurance, turn signals, safety flags, and on which roads the vehicles could be operated.

Here are some earlier entries from the ILB:

Feb. 16, 2010 - HB 1078, which would remedy a problem with last year's legislation -- see this Jan. 22, 2010 ILB entry for details -- was not scheduled to be heard in today's final meeting of the Senate Homeland Security, Transportation & Veterans Affairs Committee.
Jan. 22, 2010 - More on: Legislation proposed to remedy Indiana's 2009 golf cart legislation. This is a good background entry.
Dec. 13, 2009 - Legislation proposed to remedy Indiana's 2009 golf cart legislation:
The brief list of bills introduced so far in the Indiana General Assembly includes SB 2, which would remedy faults found in the legislation passed in 2009, particular the "corrections" inserted in the special session amendment.

Background to the new bill can be found in this ILB entry from August 9, 2009, headed "New golf cart laws may need corrective amendments," and this one from August 5th, headed "New golf cart law, as amended, may work a hardship on those outside Culver town limits." Pay particular attention to the latter part of the Aug. 5th entry, re what has turned out to be one of the "special session surprises" the ILB has written about a number of times since.

SB 2 is authored by Senator Travis Holdman (R, Markle), who has also introduced SB 18, re texting while driving.

Here is a list of all ILB golf cart entries.

In short, the 2009 legislation included cities, towns, and counties. Wording slipped into the 2009 SS budget bill narrowed the exceptions for golf carts enacted during the regular session to golf carts operating under an authorizing municipal ordinance. This was one of the "budget bill surprises" - language very few knew about until long after the session was over.

This is one example of how this practice, which subverts the legislative process, if often successful. The ILB will write shortly on the fate of several other 2009 "surprises", including restrictions on out-of-state placement of juveniles by judges, and the designation of the specific locations of certain local curb cuts by Indiana statute.

Posted by Marcia Oddi on March 18, 2010 02:26 PM
Posted to Indiana Law

Courts - 3rd Circuit declines to address whether "sexting" was protected by free speech law

Updating this ILB entry from March 27, 2009, which was headed "Students Sue Prosecutor in Cellphone Photos Case," Nathan Gorenstein of the Philadelphia Inquirer reported yesterday on the same case, in a story that begins:

A federal appeals court in will not decide whether "sexting" is pornography in the case of three Pennsylvania teenagers facing criminal charges for appearing in cell phone photographs partly clothed.

The court today did rule that the former district attorney in Wyoming County, George Skumanick Jr., was wrong when he threatened to prosecute a teen because she refused to attend his "education" class.

The case before the Court of Appeals for the Third Circuit in Philadelphia gained national attention earlier this year because it was, potentially, the first case to address whether "sexting" was protected by free speech law.

While the court in January heard arguments on the First Amendment issued, "We decline to consider it" the three-judge panel wrote in the 35-page decision released.

The controversy started in October, 2008, when officials in the Tunkhannock School District, north of Scranton, found photos of nude and semi-nude teenage girls on male students cell phones.

Skumanick was called in, an investigation was launched, and at a meeting of students' parents, he said any student who did not attend an "education program" of his design would face child pornography charges.

Three parents sued, and obtained an injunction from U.S. District Court prohibiting filing of criminal charges.

Here is a somewhat clearer story, from Michael Rubinkam of the AP.

Here is a link to the 35-page 3rd Circuit opinion in Miller v. Mitchell.

Posted by Marcia Oddi on March 18, 2010 01:48 PM
Posted to Courts in general

Ind. Gov't. - "Public records that might forever remain in the dark"

The Fort Wayne Journal Gazette has another Sunshine Week report today, this one by Jeff Wiehe. A few quotes:

Except for the required daily disclosure of basic information on suspected crimes, traffic crashes and complaints, Indiana law enforcement agencies can label police reports, videos, 911 recordings and other records as “investigatory” and withhold them from public view indefinitely.

Defined simply as “information compiled in the course of the investigation of a crime,” investigatory records can be almost anything.

In a 2009 opinion, former Indiana Public Access Counselor Heather Willis Neal called the investigatory rule “one of the broadest exceptions found” in the Indiana Access to Public Records Act.

The access counselor, who issues opinions on access denials, has concluded that law enforcement agencies for which the rule applies include fire departments with investigative arms.

The city of Fort Wayne has used the exception frequently in high-profile cases.

• In January 2009, various reports were written by Fort Wayne Fire Department investigators and recordings of 911 calls made in the aftermath of a blaze that left three college students dead at an apartment complex on the city’s southwest side.

• Several times between 2005 and 2008, Fort Wayne police were called to a home where a woman claimed her half brother was fathering her children. The man was not charged with incest until 2009, but some of the police reports made in the years before the man’s arrest have yet to be released.

• In December 2007, cameras in Fort Wayne police cruisers captured the death of Jose Lemus-Rodriguez, a 24-year-old man shot multiple times by a rookie police officer after a car chase on the city’s southeast side.

In each case, records have been withheld.

Posted by Marcia Oddi on March 18, 2010 12:56 PM
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Theotis Tolliver v. State of Indiana , a 24-page opinion, Judge Bradford concludes:

Having concluded that errors relating to body language testimony were harmless, that admission into evidence of certain alleged statements against interest did not constitute fundamental error, and that the trial court did not abuse its discretion in denying Tolliver‟s motion for a continuance and in prohibiting defense counsel‟s speculative cross-examination into witness bias, we affirm Tolliver‟s conviction for murder and the finding that he is a habitual offender.

NFP civil opinions today (1):

Alexander Miller, M.D. v. Mary Knight (NFP)

NFP criminal opinions today (3):

Hiltonio Flournoy v. State of Indiana (NFP)

J.M. v. State of Indiana (NFP)

Markquel Nance v. State of Indiana (NFP)

Posted by Marcia Oddi on March 18, 2010 12:43 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Four transfers granted, three today and one a week ago

The ILB has received notice of three transfers granted today and one a week ago - the three from today should be on next Monday's list, Francis was already included on last week's list:

Michael Francis v. Lawrence T. Newman, Supreme Ct. #49S02-1003-CV-137, Ct. of Appeals #49A02-0808-CV-776, March 10, 2010
Richard Patrick Wilson, et al. v. Gene Issacs, et al., Supreme Ct. #09S05-1003-CV-149 , Ct. of Appeals #09A05-0906-CV-344, March 17, 2010
Joshua Nicoson v. State of Indiana, Supreme Ct. #32S04-1003-CR-150 , Ct. of Appeals #32A04-0905-CR-241, March 17, 2010
Term. of the Parent-Child Rel. of I.A. (J.H. v. IDCS), Supreme Ct. #62S01-1003-JV-148 , Ct. of Appeals #62A01-0905-JV-252, March 17, 2010

More details later.

Posted by Marcia Oddi on March 18, 2010 11:21 AM
Posted to Indiana Transfer Lists

Ind. Law - Twenty-three bills were signed by the governor yesterday

Twenty-three bills were signed by the governor yesterday. No bills were received from the General Assembly yesterday, March 17th. Check the list here.

Posted by Marcia Oddi on March 18, 2010 09:02 AM
Posted to Indiana Law

Ind. Decisions - "Supreme Court steps into player eligibility dispute"

The Supreme Court heard oral arguments yesterday in the case of Indiana High School Athletic Association v. Jasmine S. Watson (for background start with this ILB entry from March 3, 2010). Charles Wilson of the AP has this long story. Some quotes:

Single mother Valerie Watson moved her family from Elkhart to South Bend following a foreclosure on the family's home, but the Indiana High School Athletic Association said the real reason was so her daughter could play for a basketball powerhouse.

Now, the state Supreme Court will decide whether the association acted unfairly in ruling Jasmine Watson ineligible to play her senior year when she transferred from Elkhart Memorial to then-nationally ranked South Bend Washington, or if lower courts overstepped their boundaries when they overruled the athletic group. * * *

The justices bombarded both sides with questions during a hearing Wednesday, asking why the IHSAA didn't lend more weight to the family's economic situation, why it focused on the player rather than possible improper recruitment by both schools, and whether the dispute even belonged in court. Watson now plays at the University of Massachusetts and is no longer involved in the case. * * *

[T]he IHSAA believes both a special judge and the state Court of Appeals exceeded the limits the top court has imposed on legal review of the athletic group, which is a private agency. Under those guidelines, judges are supposed to review the official record for blatant error, not reweigh all the evidence, [IHSAA attorney Robert M. Baker III] said.

IHSAA Commissioner Blake Ress said the appeal mainly was sought because the lower courts discounted much of the testimony at the 2008 administrative hearing on Watson's case as hearsay. Ress said the IHSAA has no subpoena power and must depend on hearsay evidence to make its decisions.

To overturn an IHSAA decision, a court must find that the organization acted “arbitrarily and capriciously” under previous Supreme Court rulings.

For an update on Ms. Watson herself, here is a March 17th story from MassLive headed "Case of UMass basketball player Jasmine Watson scrutinized by Indiana court":

Freshman Jasmine Watson, the second-leading scorer and top rebounder on the University of Massachusetts women’s basketball team this season, is the subject of controversy in Indiana high school sports circles.

In August 2008, the Indiana High School Athletic Association ruled that Watson was ineligible to play after she transferred from Elkhart Memorial School to South Bend Washington because it said she had switched primarily for athletic reasons. She changed schools after a foreclosure on the family’s home.

A special judge and the state appeals court disagreed, and allowed her to play, but Watson missed half the season. The state Supreme Court heard arguments in the case Wednesday, and will decide if the IHSAA acted unfairly.

A UMass spokesperson said Wednesday that Watson flew under the recruiting radar by not having played for half of the season, which is why the Minutewomen were able to sign her. Watson averaged 10.2 points and 5.9 rebounds for UMass.

Posted by Marcia Oddi on March 18, 2010 08:12 AM
Posted to Ind. Sup.Ct. Decisions

Wednesday, March 17, 2010

Not law but interesting - Australian newspaper allegedly hacks into secret government site

Not law, but it has parallels to the situation that involved Judge Alex Kosinski of the 9th Circuit (see ILB entry from July 5, 2009 and its links).

In the Australian story, like with Kosinski, a website was online, openly accessible to anyone who keyed in the correct address.

Some quotes from the Feb. 23, 2010 story in the Sidney Morning Herald, headlined "Minister, a monkey could have 'hacked' secret transport site" and reported in the first person by Matthew Moore:

You know a government is in trouble when it starts accusing aging Sydney Morning Herald hacks like me and my colleague Andrew West of engaging in high level cyber crime.

And yet, in his first day in Parliament since announcing on the weekend details of the government's transport blueprint, the only question from the Labor benches to Transport Minister Dave Campbell concerned a fanciful claim the Herald had somehow hacked a top secret website to reveal the plan early.

Campbell said that by accessing a website where the plan was available, the Herald had done the equivalent of "pick the lock off a secure office and take highly confidential documents".

He went further and said the campaign to crack the site had been so determined there had been "3727 hits on the firewall of the website from four different IP addresses" last Thursday and Friday and the contractor in charge of the site, IT private, had referred the matter to the police.

Really?

The IT help section at Fairfax will tell you that their staff run a mile whenever I call. I am squarely in the "learning disability" group.

And West's disdain for technology is as well known as his fondness for fountain pens, for which he generally requires assistance to refill.

The suggestions we hacks are hackers is a joke.

The facts are these:

- We got a tip on Friday that you could read the government's transport plan by accessing a website called, unsurprisingly, nswtransportblueprint.com.au.

- Even we did not need help to type in those letters. No password was requested or offered.

- Instead we were confronted with a dream menu for any reporter: rail services, cycleways, walking and cycling, bus services, paying and road network.

- With the mouse and the control P (print) command, we had our story.

As Premier Kristina Keneally's chief of staff, Walt Seccord, said on Friday night, the material we accessed were "working documents".

"This was a website in progress."

It was also a website with no protection.

(Hat tip to Slashdot.com)

Posted by Marcia Oddi on March 17, 2010 03:28 PM
Posted to General News

Courts - Articles on other states' online court records

"Tennessee lags behind with online court records" is the headline to this March 16, 2010 AP story from the Blount County Tenn. Daily Times. Some quotes:

NASHVILLE — Tennessee lags behind several other states when it comes to posting court case information online, with the vast majority of counties offering a virtual blackout of information.

Nobody tracks how many court systems throughout state allow the public to go online and look up case information, but only three out of 95 counties -- Shelby, Davidson and Hamilton -- appear to offer some form of the service to the public. An official with the state Administrative Office of the Courts said she knew of no other counties that provided the information online.

Of those three counties, only Shelby allows the public the ability to look up civil court case information online for free.

Open records advocates say there’s no excuse for the overwhelming majority of counties in the state to not provide the service to the public.

“If it’s online in one county, then there’s no reason why it shouldn’t be in others,” says Frank Gibson, executive director for the Tennessee Coalition for Open Government.

The sheer volume of user traffic on the Davidson County Criminal Court Clerk’s office Web page suggests that the information is in wide demand. More than a million people logged onto the clerk’s Web site within the last month, said Tommy Bradley, the clerk’s chief administrative officer.

The Web page allows users to find out the entire criminal history on someone arrested in Nashville, dating back to 1980.

“It’s an extremely valuable tool for the public, at no charge,” Bradley says.

It’s difficult to say how Tennessee ranks because of the way the issue is tracked.

“It’s hard to categorize how many states are doing this because there’s so much variance on the level of information that they’ve put out,” said Greg Hurley, an analyst for the National Center for State Courts.

Missouri, New York and Connecticut post everything online, he said. Records from the NCSC Web site show a number of other states doing better than Tennessee, including: Alaska, Arizona, California, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, Nevada, New Mexico, Ohio, Oklahoma, Rhode Island, Virginia and Wisconsin.

Tennessee does not have a unified court system, so many court clerks’ offices operate differently in some ways than others, said Laura Click, a spokeswoman for the state Administrative Office of the Courts.

So that was one end of the scale. Now here are two stories from the Milwaukee Journal Sentinel.

Patrick Marley reported Jan. 27, 2009 in a story that begins:

Madison — Public access to online court records would be scaled back dramatically under a bill before the state Assembly.

The bill by Rep. Marlin Schneider (D-Wisconsin Rapids) would make court records available online only for those who are convicted of a crime, found liable in a civil case, evicted or issued a restraining order or injunction by the court.

Court records for those who are found not guilty would not be posted online, nor would court records for pending cases. Those would be kept in a separate database available only to court officials, certain government bodies, law enforcement, lawyers, licensed debt collectors and accredited journalists.

The vast majority of state court records are posted online on the Web site known as the Consolidated Court Automation Programs, or CCAP. Those records are also available publicly in county courthouses, and they would remain so under the bill.

"Too many innocent people are being harmed" with online court records, Schneider said Wednesday during a public hearing before the Assembly Committee on State Affairs and Homeland Security.

He called CCAP a "court-created monster" that had ruined innocent people's lives because the public doesn't always differentiate between the guilty and innocent. Innocent people have been denied jobs and housing because they have been falsely charged, Schneider said.

The proposal drew opposition from the Wisconsin Newspaper Association, the Wisconsin Freedom of Information Council, the state Department of Justice and others.

"One of the pillars of our legal system is open and complete citizen access to the history of courts through its records," said Peter Fox, executive director of the newspaper association. "(The bill) would have a revisionist court history where only the guilty would be known to the general public."

The second story, also reported by Patrick Marley, is in the March 13, 2010 Journal Sentinel.( I thought about Indiana's closing access to records of handgun permits when reading this story.) Some quotes:

Madison — An effort to restrict access to online court records is foundering in the Legislature, but it may be gaining footing in the state Supreme Court.

In an administrative meeting last month, justices agreed they should study limiting what is posted on the Web site known as the Consolidated Court Automation Programs, or CCAP.

"Whatever problems we have has been incredibly exacerbated by CCAP and the Internet," said Justice David Prosser. "The case for redress is much too compelling to just let it die."

Meanwhile, a bill to prevent the media from broadcasting 911 tapes could get a vote before the Assembly as early as April 13.

The efforts to limit access to records come as media outlets highlight the state's open records laws during Sunshine Week, a national effort by the American Society of News Editors and others to promote the public's right to know.

Republican Attorney General J.B. Van Hollen opposes the bill to limit access to CCAP, saying some may abuse the database but most use it for legitimate purposes.

"I don't want to destroy a good openness tool for a few abusers," he said. "I'm a big proponent of open government, transparency and open meetings. We've got enough mistrust of government without hiding more things."

Limiting access to records can make it difficult to fully grasp what the government is doing. In 2003, the state signed contracts with unions that barred the release of the names of more than 20,000 state employees - keeping from the public the names of employees who had their privileges to drive state vehicles suspended and who earned more than $100,000 a year with overtime.

The Journal Sentinel and The Lakeland Times of Minocqua sued the state in 2005, and the state Supreme Court agreed last year the contracts did not trump the state's open records law. The state had to pay the newspapers $137,525 for legal fees.

Those who want to curtail access to online court records say CCAP leads to employment and housing discrimination. The Wisconsin State Bar has asked the state Supreme Court to make it easier to expunge records, making them inaccessible both online and at courthouses.

Posted by Marcia Oddi on March 17, 2010 03:07 PM
Posted to Courts in general

Environment - "SCOTUS to Reconsider Wading Into Asian Carp Fight "

So reports Gabriel Nelson this afternoon for the NY Times. Some quotes from the fairly long story:

Now faced with DNA evidence suggesting that Asian carp have reached Lake Michigan, the Supreme Court is scheduled to revisit this week its January decision not to order the temporary closure of two Chicago-area locks that could prevent some of the invasive fish from swimming into the Great Lakes.

The Supreme Court gave no explanation in January when it rejected Michigan's request to close the locks. Michigan decided to try its luck again last month, saying the need for the Supreme Court to intervene has become more urgent in light of new testing results that detected Asian carp DNA for the first time in Lake Michigan's Calumet Harbor.

The new request has been distributed to the justices for consideration at their private conference Friday. Orders made during a Friday conference are typically released the following Monday.

Posted by Marcia Oddi on March 17, 2010 02:38 PM
Posted to Environment

Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP)

For publication opinions today (4):

In In the Matter of the Estates of Obed Kalwitz, Sr., and Helen Kalwitz; Eugene Kalwitz v. Sharon Grieger, a 10-page opinion, Judge Najam writes:

Eugene Kalwitz appeals the trial court's order denying his petition to reopen the estates of Obed Kalwitz, Sr., and Helen Kalwitz (“the Estates”). Eugene raises several issues on appeal, but we address only the following dispositive issue: whether Eugene timely filed his petition to reopen the Estates. We affirm. * * *

Here, Eugene sought to reopen the Estates under Section 14 for the sole purpose of correcting an alleged “scrivener[']s error” in the Deed. But the real estate was distributed by the Deed in the former administration of the Estates. As such, it is not “an asset which had escaped the former administration,” and Eugene cannot use Section 14 to collaterally attack the final judgment on an already-administered asset. * * *

Accordingly, in order to correct the alleged scrivener's error on the previously administered Deed, Eugene was obliged to file his petition for relief within one year of the date of the discharge of the co-personal representatives. I.C. § 29-1-17-13. Eugene failed to do so. The date of discharge was January 4, 2008, and it is undisputed that Eugene did not file his petition until more than fourteen months later, on March 18, 2009. Hence, his petition was untimely, and we affirm the trial court's grant of summary judgment to Sharon.

In Pamela S. Fackler v. Melvin J. Powell, Jr. and M. Jack Powell, Jr. Living Trust, a 14-page opinion, Judge Najam concludes:

The trial court erred when it calculated the prejudgment interest owing to Fackler at a rate of 12% until February 6, 2003, and a rate of 8% thereafter. We remand with instructions for the trial court to apply the 12% prejudgment interest rate to the amount Powell owed Fackler from the date of the dissolution decree, March 22, 2002, until the date of final judgment, June 2, 2009. Fackler is entitled to prejudgment interest for the period of time she pursued the action in the wrong court. The trial court did not abuse its discretion when it ordered Powell to pay Fackler's attorney's fees in the sum of $62,284.43. And the trial court did not abuse its discretion when it denied Powell's request for attorney's fees. Affirmed in part, reversed in part, and remanded with instructions.

In Jerry W. Bass, Bettye A. Bass, Jack E. Sutton, and Kathy L. Sutton v. Jeffrey C. Salyer and Renea M. Salyer, a 21-page opinion, Judge Najam concludes:

We conclude as a matter of law that the Salyers have not proved that they own a prescriptive easement over the Drive. The Salyers' contention that they demonstrated an intent to use the Drive adverse to the interests of the underlying fee simple title holders is not supported by the trial court's finding that the Salyers' use of the Drive was “unique and distinct.” Rather, the evidence supports a finding that while the Salyers built a private pier to facilitate their use of the lake, they used the public easement over the Drive to access the lake, which was a permitted use, the very purpose for the easement, and a right shared with the public. The Salyers have also not shown the establishment of a prescriptive easement in the Lot Owners' riparian rights. Again, riparian rights arise from a claimant's interest in the land abutting the water. Because the Salyers own neither a fee simple interest nor a prescriptive easement abutting the lake, they cannot and have not established a prescriptive easement in the Lot Owners' riparian rights. To the extent the trial court found to the contrary, the trial court's findings and conclusions are clearly erroneous. Reversed.

In Johnnie Stokes v. State of Indiana , a 14-page, 2-1 opinion, Judge Crone concludes:

Stokes has failed to demonstrate that he suffered grave peril as a result of the jurors' knowledge that he was incarcerated pending trial. Therefore, the trial court did not abuse its discretion when it denied Stokes's motion for a mistrial. The State presented insufficient evidence to support Stokes's convictions for the attempted robberies of Earnest Simmons, Gregory Arnold, Jr., Fred Winfield, Shantell Williams, and Collin Moore, and we reverse his convictions on those five counts. We affirm Stokes's remaining convictions. Given that Stokes's class B attempted robbery sentences were ordered to be served concurrent with his sentences on other counts, our decision to reverse those convictions does not affect Stokes's aggregate sentence. However, because the trial court ordered Stokes's sentences on all counts to be served either consecutive to or concurrent with his class A attempted robbery conviction that we have now reversed, we remand to the trial court for resentencing. Affirmed in part, reversed in part and remanded.

RILEY, J., concurs.
VAIDIK, J., concurs in part and dissents in part with separate opinion: I respectfully dissent from the majority's decision to reverse Stokes's conviction for the Class A felony attempted robbery of Moore. The evidence in the record is that Moore was in the recording studio hallway when he was ordered to “get down” by individuals he did not recognize and heard multiple gunshots, one of which struck him in his lower abdomen. I agree with the analysis of the Curtis Stokes Court that the fact that Moore "was singled out and directly ordered to 'get down' supports a reasonable inference that the perpetrators intended to rob him, but were interrupted when gunfire erupted." 919 N.E.2d at 1248. Because I believe that these actions constitute a substantial step toward the knowing or intentional taking of property from the person or presence of Moore, I would affirm Stokes's conviction for Class A felony attempted robbery.

NFP civil opinions today (3):

J.C. Penney Company, Inc. v. Simon Property Group, Inc., et al. (NFP)

George Dean King v. Kay S. King, et al. (NFP)

In the Matter of T.R., Alleged to be CHINS; K.T. v. IDCS (NFP)

NFP criminal opinions today (3):

Delores Bails v. State of Indiana (NFP)

Zachary Taylor v. State of Indiana (NFP)

Cicero Offerle v. State of Indiana (NFP)

Posted by Marcia Oddi on March 17, 2010 01:20 PM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two Indiana decisions from 7th Circuit today, plus Illinois sex offender case

In Brown v. Finnan (SD Ind., McKinney), a 17-page opinion, Judge Cudahy writes:

Having been convicted of murdering Charles Young, Jr. and Robert Hunter in 2000, Terry C. Brown was ultimately sentenced to serve two consecutive terms of 55 years. Brown subsequently filed a petition for post-conviction relief, claiming that he had received ineffective assistance of counsel at both the trial and appellate levels. His petition focused on an incourt announcement by one victim’s mother to the effect that “the situation [was] racist” and her further proclamation on the courthouse steps that the courthouse should be treated similarly to the World Trade Center and bombed. Brown’s attorney declined to request a hearing to determine the impact of these statements on the jury. Nor did his appellate counsel raise the issue on appeal. Brown now contends that his counsels’ failure to address this issue violated the Sixth Amendment. He argues further that the Indiana courts’ denial of his petition for post-conviction relief is contrary to well established principles of federal law, as established by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). He therefore asserts that this Court should grant his petition for a writ of habeas corpus.
We decline to do so. To prevail on an ineffective assistance of counsel claim under Strickland, a petitioner must demonstrate that his counsel’s assistance was objectively unreasonable and resulted in a substantial risk of prejudice. Brown can meet neither requirement. The prejudicial impact of the statements here on the defendant’s right to a fair trial is attenuated. Since both Brown and his victim, Young, were African-American, it is far from clear how a juror would perceive the assertion of racism in a manner necessarily injurious to Brown. While obviously serious, a distraught parent’s threat of bombing the courthouse does not obviously bear on the guilt or innocence of the defendant. Moreover, there is no evidence that this out-of-court statement was heard by any juror. Finally, though no less important, there may be good reason not to draw explicit attention to such statements. Apt counsel might conclude that her client’s cause would best be promoted by not focusing on issues of tenuous significance to her client’s guilt or innocence. For these reasons, Brown’s counsels’ performance was not objectively unreasonable. Nor did his attorneys’ conduct result in a substantial risk of prejudice. For these reasons, and the reasons that follow, we deny Brown’s petition.

In Tully v. Rush County Prosecutor (SD Ind., McKinney), an 8-page opinion, Judge Bauer writes:

Michael Tully sued Paul Barada and Catherine Custer under 42 U.S.C. § 1983, asserting that they violated his rights under the Fourth and Fourteenth Amendments by summoning him into court and initiating juvenile proceedings against him without probable cause. The district court dismissed Tully’s case for failure to state a claim upon which relief can be granted. We affirm.

The Illinois case is Rosin v. Monken, an 8-page opinion where Judge Cudahy writes:

After he was required to register as a sex offender in Illinois, Mitchell Rosin brought suit under 42 U.S.C. § 1983, alleging that the defendants failed to give full faith and credit to the March 27, 2003 judgment of a New York court. In that order, the court accepted a plea agreement that did not require Rosin to register as a sex offender in New York. He contends that Illinois is constitutionally required to give effect to the New York judgment and thus cannot, on the basis of that order, force him to register as a sex offender within its jurisdiction. The district court granted defendants’ motion to dismiss, finding that the registration requirement in the New York order was merely stricken, which left the order silent on the subject. Since the plea agreement did not purport to prevent any state other than New York from registering Rosin as a sex offender, and because any such provision would have been ineffective even if it had been included, we affirm. * * *
The district court correctly dismissed Rosin’s lawsuit because the New York order was silent as to registration in any other state. Absent such language, there is no relevant provision to which Illinois must give full faith and credit. Even if there had been such a provision, however, New York lacks power to dictate the means by which Illinois can protect its public. The judgment of the district court is therefore affirmed.

Posted by Marcia Oddi on March 17, 2010 11:49 AM
Posted to Ind. (7th Cir.) Decisions

Law - Chief Justice John G. Roberts to speak at IU School of Law - Indianapolis

From a news release:

INDIANAPOLIS -- When John G. Roberts Jr., Chief Justice of the United States, delivers the Ninth Annual James P. White Lecture on Legal Education at the Indiana University School of Law - Indianapolis on April 7, 2010, he will be the third justice to have that honor, but the first chief justice to participate in the event. Justice Sandra Day O'Connor gave the inaugural lecture in 2002, and Justice Ruth Bader Ginsburg spoke at the law school in 2007. * * *

Attendance at the lecture is by invitation only. There will be limited overflow seating in room 385 of Inlow Hall at 530 West New York Street and a reception in the Conour Atrium after the lecture. The lecture will also be Webcast live through a link on the law school's Web site at indylaw.indiana.edu.

Posted by Marcia Oddi on March 17, 2010 11:29 AM
Posted to General Law Related

Ind. Gov't - "Indiana will make each license plate unique"

Well, I didn't know that!

Mary Beth Schneider reports today in the Indianapolis Star:

In the past, the Bureau of Motor Vehicles used duplicate numbers for different types of vehicles. For instance, a semitrailer truck might have the same number as a pickup truck, or a motorcycle might have the same number as a car.

That worked fine in Indiana, where police knew to notice not just the number but the type of plate when issuing a ticket.

But Dennis Rosebrough, spokesman for the BMV, said the increased use of cameras in other states to nab motorists for driving through tolls without paying, or for running a red light, led to problems. Indiana motorists were getting tickets from places they'd never been.

To fix the problem, Rosebrough said, "We are going to never issue duplicate numbers again. We bagged that."

Fixing that problem, combined with a second change BMV instituted this year, ironically has led to some unhappy motorists.

Rosebrough said the Indiana State Police had asked the BMV to make specialty plates easier to read by using only full-sized letters next to the numbers on plates. Until now, specialty plates have had two small letters on each plate, one on top of the other.

But because the BMV also is going to unique numbers, that has meant some people who had a particular letter-number combination on a specialty plate can't have that, as it is already being used by another vehicle.

Rosebrough said the BMV will have made the switch to the nonduplicate numbers by the end of this year, and next year will replace all the specialty plates with the small, stacked letters.

Posted by Marcia Oddi on March 17, 2010 10:52 AM
Posted to Indiana Government

Courts - Wonderful website of NBC's "court artist"

The blog of Art Lien, court artist for NBC News. Its name, CourtArtist.com, "going where cameras cannot."

Posted by Marcia Oddi on March 17, 2010 10:43 AM
Posted to Courts in general

Courts - More on: "Judiciary Approves PACER Innovations To Enhance Public Access "

Updating yesterday's ILB entry, the Law Librarian Blog notes today its opinion that:

[T]he most noteworthy development is the the Conference's approval of a pilot program to allow up to 12 courts to publish federal district and bankruptcy court opinions via the GPO's FDsys "so members of the public can more easily search across opinions and across courts."

Posted by Marcia Oddi on March 17, 2010 10:18 AM
Posted to Courts in general

Ind. Courts - "Bren Simon loses bid to liquidate shares"

Updating earlier ILB entries about the Mel Simon estate dispute, Jeff Swiatek of the Indianapolis Star reports today:

Simon Property Group got its legal wish granted Tuesday in a lawsuit against its co-founder's widow.

A ruling by a Hamilton County judge agreed with the company's reasoning in refusing Bren Simon's request to liquidate more than $500 million worth of partnership shares she inherited from her husband.
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Judge William J. Hughes' ruling essentially could bring an end to the unusual lawsuit less than two months after it was filed.

The 15-page ruling also appears to get the Indianapolis-based shopping mall developer off the hook, for now, in having to decide whether to give cash or stock to Bren Simon for the massive number of partnership shares she controls and wants to liquidate. * * *

Bren Simon said in a court filing that she wants to convert the untradable partnership shares into cash or stock as part of her financial planning for her husband's more than $1 billion estate.

But the company denied her request, arguing that a suit filed by Bren Simon's stepdaughter Deborah Simon, challenging her stepmother's role as trustee of the estate, amounts to a lien or legal encumbrance against the partnership shares, giving the company the right to reject conversion.

Hughes agreed that "a lien exists" against the partnership shares in the form of Deborah Simon's lawsuit, which was filed in January.

Attorneys for both sides agreed at a hearing earlier this month that if the judge ruled that a lien exists against the partnership shares, that essentially would resolve the lawsuit.

But the judge didn't rule on Bren Simon's request for damages in the case, along with other matters, so the case remains open.

Hughes also is presiding over the Deborah Simon lawsuit against Bren Simon. A key hearing in that case is set for May 7 on Deborah Simon's motion to replace her stepmother as trustee of Melvin Simon's estate.

Posted by Marcia Oddi on March 17, 2010 10:08 AM
Posted to Ind. Trial Ct. Decisions

Ind. Decisions "Short-term rentals OK in Ogden Dunes"

Yesterday's Court of Appeals decision in the case of Steven Siwinski, et al. v. Town of Ogden Dunes (ILB summary here - 2nd case) is the subject of stories today in both papers from the region.

Dan Carden and Joyce Russell of the NWI Times report:

The town of Ogden Dunes cannot stop homeowners who want to rent out their property for periods of less than a month, the Indiana Court of Appeals ruled Tuesday.

In 2007, the Porter County town of 1,300 people decided to stringently enforce its residential zoning code, which the town claimed prohibited short-term home rentals. The goal was to prevent the lakefront community from becoming a resort area.

Later that year, the town accused Steven and Lauren Siwinski of renting out their beachfront home five times that summer, essentially using their residence for a commercial purpose, which is prohibited. The town sought a $2,500 fine for each day the home was rented.

Porter Superior Court Judge Mary Harper ruled in favor of the town in June.

However, the appeals court found that -- because the zoning ordinance does not specifically prohibit short-term rentals and because the rented home is being used in a residential manner -- short-term rentals do not violate the zoning ordinance.

"Nothing in the designated evidence established that any commerce or other activities not associated with a residence were ever conducted on the Siwinskis' property," wrote Judge James S. Kirsch in the court's 3-0 decision.

"We conclude that it was error to find that the Siwinskis' occasional short-term rental of their property was a commercial and not a residential use," the court said.

The Court of Appeals reversed the earlier Porter County court decision in favor of the town and ordered the Porter court to rule in favor of the Siwinskis.

"We're disappointed, but it is not totally a loss," Ogden Dunes town Attorney Chuck Lukmann said.

While the decision was not in the town's favor, Lukmann said, it did state that not more than one family can live in a house at a time.

"This will curtail a lot of activities," said Lukmann, adding that many of the problems come from when homes are leased to college students and used as "party houses" or when multiple families lease a single-family home at the same time.

"It is a setback, but it does assist with some of the town's goals," said Lukmann, adding it is not only an Ogden Dunes issue.

"Let anyone ask themselves if they would want weekend renters versus one family living there (next door) permanently," he said, adding a similar situation in any community would devalue property.

Lukmann said the Town Council will likely call an executive session to discuss their next course of action. They will have 30 days to decide whether or not they want to appeal the most recent decision.

Diane Krieger Spivak of the Gary Post-Tribune writes:

A Highland Park, Ill., couple received approval from the Indiana Court of Appeals on Tuesday to rent out their Ogden Dunes home, reversing a lower court's ruling.

The decision reversed a fine of $40,000 the town imposed on Steven and Lauren Siwinski for offering their $1 million home in the small beachfront community for short-term rentals.

"We are pleased that the Court of Appeals has clarified what always appeared clear to my family: If the town wants to ban short-term rentals, then the town should pass an ordinance that specifically bans them," Steven Siwinski said.

The Siwinskis' attorney, Thompson Coburn, had argued that the town's ordinance, which bans renting homes for periods of less than 30 days, was too vague, and that renting the home was not a commercial endeavor, as the town had said.

"Having a gotcha ordinance that doesn't allow homeowners to know what conduct is prohibited, and what is permitted, and then impose a fine of tens of thousands of dollars on a homeowner is not fair to anyone," Siwinski said.

"It is unfortunate that my family was forced to expend many tens of thousands of dollars to defend this lawsuit brought by the town."

The town sued the couple in 2007 in a crackdown on what officials said were loud parties by weekend visitors.

Siwinski, a mortgage broker, sued the town in federal court in 2008, claiming that the town allowed short-term rentals for years. Siwinski said he and his wife were targeted by the town because they were part-time residents.

See also this earlier NWI Times story from July 21, 2008.

Posted by Marcia Oddi on March 17, 2010 09:39 AM
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Indiana's Jump in inmates is biggest in U.S: State prison population rose 5.3 percent last year"

In this ILB entry from Sept. 7, 2009, headed "More on 'Lights Out at the Penitentiary: Strapped States are Shutting Prisons'" the ILB juxtaposed a story on other states' actions to "reduce their prison populations in the face of tight budgets, making fundamental changes to their criminal justice systems as they try to save money" (quoting the LA Times) with a story on Indiana's "renewed focus on sentencing policies that allow some people to be released early from prison for good behavior and for getting an education while behind bars" (quoting from the Indy Star). See also this Sept. 5, 2009 ILB entry.

Today's Indianapolis Star features a lengthy story reported by Jon Murray, that begins:

For the first time since 1972, the number of inmates in state prisons in the U.S. has dropped. No thanks to Indiana.

Last year, the prison population dipped in 27 states, and a new report to be released today says that drove an overall decrease of 0.4 percent.

But in Indiana, the prison population last year swelled by 5.3 percent, the largest percentage increase of any state in the nation.

What's different about Indiana? Prison officials and experts say many other states have more aggressively reformed sentencing and pursued alternatives to prison incarceration -- often under pressure to slash gargantuan prison budgets, especially during the recession.

"When you're in the number one spot, it says that something is out of whack," said Adam Gelb, director of the Pew Center's Public Safety Performance Project, which conducted the study.

"It does cry out for a deeper look at why Indiana is leading the nation in growth," he said, "and what strategies could be employed to bend the curve, while continuing to protect public safety."

One factor that drives incarceration in Indiana is get-tough sentence enhancements, which even some legislators agree have snowballed to fill Indiana's adult male prisons nearly to capacity.

"They've created a time bomb over the last 10 to 20 years," said Larry Landis, executive director of the Indiana Public Defender Council. "Our problem is that we're addicted to incarceration."

Tuesday, March 16, 2010

Ind. Decisions - "Seventh Circuit rules for deadbeat dad (and creates circuit split) on double-counting argument"

Sentencing Law and Policy Blog has posted this entry on a decision on a case out of Illinois, construing a federal law, the Deadbeat Parents Punishment Act of 1998 (DPPA).

Posted by Marcia Oddi on March 16, 2010 04:30 PM
Posted to Ind. (7th Cir.) Decisions

Courts - "Judiciary Approves PACER Innovations To Enhance Public Access "

A news release today from the Judicial Conference of the United States:

March 16, 2010 — The Judicial Conference of the United States today approved key steps to improve public access to federal courts by increasing the availability of court opinions and expanding the services and reducing the costs for many users of the Public Access to Electronic Court Records (PACER) system. At its biannual meeting in Washington, D.C., the Conference voted to:

Allow courts, at the discretion of the presiding judge, to make digital audio recordings of court hearings available online to the public through PACER, for $2.40 per audio file.

Adjust the Electronic Public Access fee schedule so that users are not billed unless they accrue charges of more than $10 of PACER usage in a quarterly billing cycle, in effect quadrupling the amount of data available without charge. Currently, users are not billed until their accounts total at least $10 in a one-year period.

Approve a pilot in up to 12 courts to publish federal district and bankruptcy court opinions via the Government Printing Office’s Federal Digital System (FDsys) so members of the public can more easily search across opinions and across courts.
The Conference approved the plan to make digital audio recordings available on PACER after a two-year pilot project showed significant public interest in accessing these files. Prior to the pilot, such access was possible only by obtaining a CD recording from a court clerk’s office for $26. During the pilot, Internet access to the same content cost eight cents, but the $2.40 fee approved today was deemed by the Conference to be reasonable and come closest to recouping, but not exceeding, costs. Digital audio recording is used in most bankruptcy and district courts (where magistrate judges account for most of the usage).

For printed court documents, the $10 fee waiver affects tens of thousands of PACER users. In fiscal year 2009, about 153,000 PACER account holders—nearly half of all active accounts— did not receive a bill. For that 12-month period, a quarterly waiver would have affected an additional 85,000 accounts— resulting in 75 percent of all active accounts not receiving bills. Analysis of fiscal year 2008 billing data showed a similar impact.

As mandated by Congress, electronic access to court information is funded through reasonable user fees, and not through taxes paid by the general public. Last year, PACER received more than 360 million requests for electronic access to information from the over 33 million federal cases that have documents online. The Electronic Public Access fee revenue is used exclusively to fund program expenses and enhancements that increase public access to the courts. As a result, PACER is a very economical service: the charge for accessing filings, other than opinions, is just eight cents per page, with a maximum charge of $2.40 regardless of the length of a document. At federal courthouses, public access terminals provide free PACER access to view filings in that court, as well as economical printouts (priced at ten cents per page). The charge for copies from the paper case file in the clerk's office was—and remains—50 cents a page.

All court opinions are available through PACER free of charge, and that will not change. The pilot project to make bankruptcy and district court opinions also available through the Government Printing Office’s system will enhance public access to those opinions.

The Judiciary is conducting a comprehensive assessment of its Electronic Public Access Program services to identify potential enhancements to existing services and new public access services that can be provided to litigants, the bar, and the public. All active PACER users were welcomed to participate in at least one of the assessment surveys, focus groups, or interviews. The results of that assessment will be available by July 2010.

The US Party/Case Index is a tool that enables users to locate a case across the federal courts. The application has been running in its current format since September 1999, and currently receives over 200,000 searches daily. A new version of the search tool, which includes additional search capabilities and result formats, has been developed and will be deployed under the new name PACER Case Locator this month.

The Judicial Conference is the policy-making body for the federal court system. The Chief Justice serves as its presiding officer. It is comprised of the chief judges of the 13 courts of appeals, a district judge from each of the 12 geographic circuits, and the chief judge of the Court of International Trade. The Conference meets twice a year to consider administrative and policy issues affecting the court system, and to make recommendations to Congress concerning legislation involving the Judicial Branch.

Posted by Marcia Oddi on March 16, 2010 03:05 PM
Posted to Courts in general

Courts - "Key New York Suit Calls Public Defender Programs Inadequate"

That is the headline to this story today in the NY Times, reported by William Glaberson. It begins:

A class-action suit to be argued next week in New York’s highest court has become a test of a national strategy by civil liberties groups to challenge what they say are failed public defender programs in many states.

Because an estimated 80 percent of felony defendants in large states are too poor to hire their own lawyers, and because the case is being watched around the nation, the case has the potential to alter the shape of the criminal justice system.

Filed by the New York Civil Liberties Union, the lawsuit is a broad challenge to a patchwork system that has been described by decades of studies and commissions as dysfunctional, underfinanced and “in crisis,” with often poorly trained and poorly supervised lawyers handling huge caseloads. It says indigent clients have been failed by their appointed lawyers all around the state.

“The eyes of the nation will be on New York as it decides this crucial issue,” a brief filed by the National Association of Criminal Defense Lawyers argues.

As the system works now, defendants who are unhappy with their appointed lawyers can generally make those claims only after they are convicted. The court then reviews each appeal case by case. But the civil liberties lawyers argue that a broad review is necessary because the arrangement has not addressed systemic failings that unconstitutionally leave tens of thousands of defendants without meaningful representation in every part of the state.

The state has fought hard against the suit, which was first filed in 2007, arguing that if New York’s highest court, the Court of Appeals, allows it to proceed — and a court later uses the case to order the state to upgrade the public defender system — it would be a judicial invasion of the authority of the Legislature and the governor. Such improvements, some lawyers say, could cost hundreds of millions of dollars.

In one filing, the state argues that by appointing lawyers it fulfills its constitutional obligations. “It cannot be seriously contended that plaintiffs have been denied the right to counsel,” the state says. The state’s defender system includes Legal Aid Societies, private lawyers who are appointed by the courts, and local public defender offices.

Next Tuesday, the Court of Appeals is to consider whether the suit can proceed. A half-dozen friend-of-the-court briefs portray the scheduled argument as a critical step in defining the meaning of a landmark decision of the United States Supreme Court in 1963. The decision, Gideon v. Wainwright, declared that the Constitution required states to provide lawyers for indigent defendants.

See also the WSJ Law Blog's Ashby Jones' entry today headed "Is Gideon Alive and Well? New York Case Says Absolutely Not."

Posted by Marcia Oddi on March 16, 2010 02:11 PM
Posted to Courts in general

Ind. Courts - "Indiana Supreme Court Gives Stamp of Approval to Lake County and Marion County Electronic Filing Plans"

The heading is from a story by James Walker and James F. Maguire in the March issue of Indiana Court Times. Some quotes from the lengthy story:

This past December the Indiana Supreme Court approved separate requests by the Lake County and the Marion County courts to implement an electronic filing system on a limited and trial basis. Lake and Marion are the first counties to implement an electronic filing system under Administrative Rule 16. Each county intends in 2010 to accept pleadings and court documents, and to send notices, by electronic means. Lake County is scheduled to begin their pilot project in February. They will limit electronic filing to only mortgage foreclosure cases. Mortgage foreclosure filings are randomly assigned to each court in Lake County, so the plan will be effective in all courtrooms.

Marion County will allow for electronic filing in both mortgage foreclosure cases and civil collection cases. Thirteen courtrooms will allow electronic filings: Marion Circuit Court and Marion Superior Court, Civil Divisions One through Seven, and Ten through Fourteen.

In each county, all registered users of the electronic filing system will be able to remotely access documents in mortgage foreclosure cases. But, in Marion County, only the registered users who are actual parties to a collection case will be able to remotely access court documents.

Registered users include attorneys, members of the news media, commercial users (such as title companies, banks, and mortgage companies), judges and their staff, court administrative staff and technical support staff, and self-represented litigants, who enter into a User Agreement with the court.

Lake County will utilize a self-contained system to file and serve documents in the court’s case management system, CourtView, through their Lake County Online Docket (LCOD). Marion County will utilize the services of the Lexis-Nexis File & Serve System (LNFS), an outside vendor.

In both counties registered users must sign an agreement and pay fees to utilize the electronic filing and service system. Each county plan protects confidential information and sealed documents as required by Administrative Rule 9. Both plans also provide assistance to self-represented litigants who choose to utilize the electronic filing system. There are opt-out provisions for parties who want to use traditional paper filings and service. * * *

Many court observers predict that all courts will one day use Electronic-Filing and Electronic-Service. A few jurisdictions have already implemented a statewide system, including: Colorado, Delaware, and Minnesota. For several years most of the federal courts have been linked to PACER (Public Access to Court Electronic Records). It is a system maintained by the Administrative Office of the United States Courts, with a separate URL for each Court. It includes federal district, appellate and bankruptcy courts. Their website can be found at pacer.psc.uscourts.gov.

Technology presents our Indiana courts with some exciting opportunities. We hope that many courts take advantage of the opportunity to begin a pilot project. We are ready, willing and eager to assist our courts in setting up a project that meets the requirements of Administrative Rule 16. While we know that one size does not fit all counties, we are developing a model for other counties that want to establish an electronic-filing plan. We will work to serve the individual needs of our courts on a county-by-county basis.

Apparently this project is unrelated to the Supreme Court's JTAC Odyssey project to link up the over 400 Indiana courts and put their dockets online, which at last report covers 50 courts in 18 counties.

Posted by Marcia Oddi on March 16, 2010 01:40 PM
Posted to Indiana Courts

Ind. Decisions - "Avon-area water feud bubbles over"

Josh Duke reports today in the Indianapolis Star:

AVON -- An ongoing feud over water in the Avon area will continue despite a Hendricks County judge's ruling last month.

The town of Avon filed an appeal with the Indiana Court of Appeals last week after Judge Mark A. Smith sided with Washington Township and the West Central Conservancy District in all but one count regarding a town ordinance passed in 2008.
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The town ordinance sought to regulate the removal of groundwater in the Avon area.

Avon's ordinance was crafted in response to an Indianapolis Water study that determined there would be a water supply shortage in the future. That study recommended local governments take action to preserve water resources.

The judge determined in a 24-page summary last month that Indiana law does not give the town authority over aquifers, wells or groundwater that it does not own. Avon currently doesn't have its own water utility.

"The Indiana Department of Natural Resources has the statutory authority to regulate groundwater," Smith said in his ruling.

Posted by Marcia Oddi on March 16, 2010 01:29 PM
Posted to Ind. Trial Ct. Decisions

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

For publication opinions today (5):

In Richard Thomas, Allita Thomas and Trustcorp Mortgage Co. and Fannie Mae and Everbank v. Benjamin Thomas, a 9-page opinion, Judge Bradford writes:

Appellant/Defendant Trustcorp Mortgage Company and Appellants/Third-Party Defendants Fannie Mae and EverBank appeal from the trial court’s judgment in favor of Appellee/Plaintiff Benjamin Thomas. Appellants challenge the trial court’s conclusion that the mortgage Trustcorp holds on Benjamin’s home is invalid. We affirm. * * *

In light of the amount of the loan, $118,000, we believe that a reasonably prudent lender would have taken the simple steps necessary to verify that a superior $200,000 mechanic’s lien had indeed been released, especially when the release instrument had been improperly notarized. * * *

It is not enough to show fraud on the part of the vendor, where the purchaser is not a mere volunteer, but pays a consideration for the land. To set aside the conveyance as fraudulent, much more must be shown.”) (citations omitted). As in the lis pendens context, the question here is whether Trustcorp qualifies as a bona fide mortgagee. As we previously decided, however, Trustcorp could not have been a bona fide mortgagee due to its failure to investigate Benjamin’s interest in the home. Consequently, we affirm the trial court’s judgment in this respect as well.

The opinion includes an interesting footnote #2 on p. 9, following the end of this quoted statement in the text: “It is a fundamental principle, worthy of the rank of a maxim, that what fraud creates equity will destroy.” Footnote #2 provides:

The version of this citation found in the www.westlaw.com database places quotation marks around the phrase “what fraud creates equity will destroy.” While this error does not seem to alter the meaning of the citation, we will continue to exercise caution in citing to non-official authorities.

What this means to me is that the Court is not simply relying on West's online database, but is looking back to the original opinion. The need to do so is pointed out in footnote - there is a variance. One additional thing I wish the Court would have done would have been to identify that the official source it looked to was the 1922 Indiana Appellate Reports. It would also be interesting to know whether punctuation in the 1922 Northeast Reporter version parallels the official version, or West's online version.

In Steven Siwinski, et al. v. Town of Ogden Dunes , an 8-page opinion, Judge Kirsch concludes:

Previous Indiana cases that have analyzed the language of restrictions on land use regarding residential uses have determined that such language was concerned with the physical activity conducted upon the property and not the profit-making intentions of the homeowners. Applegate, 908 N.E.2d at 1219; Lewis-Levett v. Day, 875 N.E.2d 293, 296 (Ind. Ct. App. 2008), trans. denied; Stewart, 635 N.E.2d at 192. As in Applegate, the renters of the Siwinskis’ property used the house for eating, sleeping, and other activities typically associated with a residence or dwelling place. Nothing in the designated evidence established that any commerce or other activities not associated with a residence were ever conducted on the Siwinskis’ property. Nor did the evidence show that, at any time, the property was occupied by more than a single family simultaneously. Under the trial court’s overly broad construction of the Ordinance, the Siwinskis would be prohibited from, and subject to substantial fines for, such things as having weekend guests or allowing family members to use the property while they were away as the property would then not be occupied exclusively as a residence by one family. We conclude that it was error to find that the Siwinskis’ occasional short-term rental of their property was a commercial and not a residential use. The trial court erred when it granted summary judgment in favor of the Town and denied the Siwinskis’ motion for summary judgment. We reverse the summary judgment entry in favor of the Town and the trial court’s injunction and fine and remand to the trial court with instructions that summary judgment should be entered in favor of the Siwinskis.

In Francisco and Alisa Delgado v. Peter Boyles, et al. , a 10-page opinion, Judge Riley concludes:

We agree with the trial court. In light of Daffron and Reuille, the Delgados cannot be considered a prevailing party under the Vacant Land Purchase Agreement. Unlike Daffron, where the trial court entered a consent judgment after the settlement, the Delgados had nothing but a private settlement agreement. Moreover, in the absence of a contractual definition of prevailing or successful party and a trial on the merits, as in Reuille, we conclude that litigation which is resolved by mediation or private settlement cannot result in a winner or loser. Consequently, the Delgados are not entitled to attorney fees.

In Paternity of L.S.; M.S. v. L.S. and B.S. , a 14-page opinion, Judge Kirsch writes:

L.J.S. was born out of wedlock. In a custody dispute between L.J.S.’s maternal grandparents, L.S. and B.S. (“Grandparents”), and his natural father, M.W.S. (“Father”), the trial court granted Grandparents’ request for custody. Father appeals, raising the following restated issue: whether the important and strong presumption that L.J.S.’s interests are best served by placement with Father has been clearly and convincingly overcome by evidence proving that the child’s best interests are substantially and significantly served by placement with Grandparents. We hold that it has not. Accordingly, we reverse and remand.

Lee Carroll v. State of Indiana - "Although the maximum sentence for a class A misdemeanor is a one-year term, see I.C. § 35-50-3-2, upon conviction of more than one misdemeanor offense, a defendant may be ordered to serve the sentences therefor consecutively. Dunn v. State, 900 N.E.2d 1291 (Ind. Ct. App. 2009). Here, the victim was attacked by two dogs, leading to the reasonable inference that her horrendous injuries were doubled. Such supports the imposition of consecutive sentences."

NFP civil opinions today (5):

Stacy Caldwell v. Shawn Caldwell (NFP) - "Although we find that the trial court erred in finding that the Agreement was unambiguous, we find that the trial court correctly denied Stacy relief under Trial Rule 60(B). Giving effect to the parties’ intent of a 50/50 split of the overall marital estate would involve a division of the investment accounts at the time of transfer, with 50% plus $8,000.00 going to Stacy, and 50% less $8,000.00 going to Shawn. This division would reduce what Stacy receives and increase Shawn’s share. Since neither party argues for such a division, we conclude that Stacy has failed to show that she was prejudiced as a result of the trial court’s ruling. As a result, any error in the trial court’s ruling was harmless."

Term. of Parent-Child Rel. of J.R. and C.R.; D.C. v. IDCS (NFP)

Walter W. Jennings v. Judge Peter J. Nemeth (NFP) - "Further, a party who knowingly decides to proceed pro se despite his lack of legal training cannot claim on appeal that he was prejudiced by his own lack of legal knowledge. See Carter v. State, 512 N.E.2d 158 (Ind. 1987) (pro se defendant may not claim ineffective assistance of counsel because he would be alleging himself ineffective). We find that the Circuit Court did not err by not inquiring into Jennings’s competence to manage the proceedings pro se. Judgment affirmed."

A.C. v. Review Board (NFP)

Sylvester Hunter and Fitzhugh Lyons, Sr. v. Minton Business Services, LLC (NFP)

NFP criminal opinions today (5):

Jeffrey Penick v. State of Indiana (NFP)

Kevin Simmons v. State of Indiana (NFP)

Joseph L. Cottman v. State of Indiana (NFP)

Cory A. McClarin v. State of Indiana (NFP)

Roy A. Smith v. State of Indiana (NFP)

Posted by Marcia Oddi on March 16, 2010 12:15 PM
Posted to Ind. App.Ct. Decisions

Ind. Law - "New drunken driving law quickens blood sample process"

HEA 342, signed by the Governor March 12, 2010, is the focus of a story in the Bloomington Herald-Times. Some quotes:

New legislation closes what Monroe County Prosecutor Chris Gaal referred to as a “loophole” in drunken driving law.

Back in 2007, Gaal announced an expedited process for obtaining blood samples at Bloomington Hospital in drunken-driving cases. That allowed officers to get back on the streets more quickly, as well as provide evidence that led to improved enforcement in drunken driving cases, he said.

Then, a Court of Appeals case interpreted state law that blood draws must be conducted by a certified phlebotomist. Indiana did not have a certification process for phlebotomists, and hospitals were unable to comply with the new understanding of the law.

Gaal brought the issue to the attention of State Sen. Vi Simpson and State Reps. Matt Pierce and Peggy Welch. Legislation was developed with the Indiana Prosecuting Attorney’s Council, which clarified the section of the statute did not apply to blood draws conducted in a hospital setting. * * * Daniels signed the bill Friday.

The August 21, 2009 COA decision was Roger Brown v. State The Supreme Court granted transfer and oral argument was held Jan. 11, 2010. No opinion has yet been issued.

Posted by Marcia Oddi on March 16, 2010 10:49 AM
Posted to Indiana Law

Ind. Law - "Traffic court bill on its way to governor's desk"

From Jon Murray of the Indianapolis Star, this item on SEA 399, which is currently on its way to the Governor's desk:

The bill applies to people who contest their tickets for Class C infraction moving violations (most instances of speeding, running red light/stop sign, etc.) and take their tickets to trial. The odds are that they will lose, but several times a day they proceed anyway, at least in Marion County's traffic court (the state's busiest). The bill, if it becomes law, would make it so only those with a history of losing attempts to beat tickets would have to pay anywhere near the $500 maximum fine, plus court costs. Under Judge Bill Young, it's been common to get slammed with total fines and fees nearing that amount after he rules against you.

Once this law takes effect July 1, assuming the governor signs it, those contesting tickets could do so knowing they won't face the risk of a big fine. Only those who already contested two or more tickets and lost within five years (in the same county) would risk fines closer to the maximum; one previous failed attempt would limit the fine to $250, plus court costs.

Those who have no previous attempts within five years would pay the standard $32.50 fine in Marion County; with costs, that comes to $150.

Posted by Marcia Oddi on March 16, 2010 10:36 AM
Posted to Indiana Law

Law - WestlawNext pricing

The Law Librarian Blog has a long analysis today, headed "In re WestlawNext Pricing: "\'Hi, My Name is Johnny Westlaw, You Got the Money?'"

Posted by Marcia Oddi on March 16, 2010 10:32 AM
Posted to General Law Related

Environment - "13 million pounds of Ohio River fish eaten annually"

"Who knew?" begins this story by James Bruggers of the Louisville Courier Journal, in a story dated March 15, 2010. The story begins:

People are eating an estimated 13 million pounds of fish per year from the Ohio River — and that doesn’t count fish caught by commercial fishers.

Yes, there’s a commercial fishery, too, along the 981-mile Ohio River.

“There’s a stigma that only when you are desperately starving would you go eat fish from the Ohio River,” said Jason Flicker, the water resources program director for the Kentucky Waterways Alliance, a statewide environmental advocacy organization.

A new recreation survey of more than 5,000 people who live in communities in the river’s eight-state watershed, however, challenges that notion.

Not only does the survey by the Ohio River Valley Water Sanitation Commission indicate widespread fishing and fish consumption — despite various health warnings from mercury and other pollutants — it suggests more than 1.2 million people each year are using the river for recreational activities such as boating, waterskiing, swimming, hunting and fishing.

Among the most heavily used stretches of the river is its middle section, which runs roughly from the West Virginia border to just below the Louisville area.

“This perception of it being a dirty river and that it shouldn’t be touched is diminishing,” Flickner said. “This shows we need to continue to improve the river’s water quality for public health.”

ORSANCO commissioned the study after it abandoned a controversial effort in 2006 to allow higher bacteria levels in the river in periods of wet weather during the recreation season — May through October. Rains cause sewer systems to overflow and flush pollutants into the river from urban and rural landscapes, including roads, parking lots and farms.

Posted by Marcia Oddi on March 16, 2010 10:28 AM
Posted to Environment

Ind. Gov't. - "Porter jail seeks more money for fed prisoners"

$30 a day, $40 a day, or $50 a day for housing federal or state prisoners? The question was explored yesterday in this story by Jane Huh of the Gary Post Tribune.

Posted by Marcia Oddi on March 16, 2010 10:25 AM
Posted to Indiana Government

Ind. Courts - "Lake County considers closing satellite courthouses for savings"

From the AP, this story yesterday:

CROWN POINT, Ind. — Closing three satellite courthouses could save Lake County more than $1 million a year, although some officials say doing so would deny easy access to the courts for many residents.

A review by the county commissioners' attorney found that closing the courthouses in East Chicago, Gary and Hammond also could mean nearly 80 fewer workers would be needed in consolidated operations at the government center in Crown Point.

Some County Council members and commissioners suggested closing the courthouses as they've looked in recent months for ways to cut millions of dollars in the wake of property tax shortfalls.

Attorney John Dull said the county could save $1.1 million a year that it is now spending on utilities, maintenance and security guards at the three satellite courthouses. The job cuts could include 26 deputy clerks and 21 janitors.

That estimate does not include court personnel, which could significantly raise the savings.

Dull said the county would face spending about $22 million for building new offices and remodeling work to accommodate a move of the seven court offices from the three locations to Crown Point.

Lake Superior Court Judge Calvin Hawkins, whose courtroom is in East Chicago, said Lake County's poor public transportation system makes a perhaps 20-mile trip to Crown Point difficult for many in the northern part of the county, where the satellite courthouses are located.

“Even before becoming a judge here I supported keeping all the satellite offices open,” he said.

The idea of closing the courthouses has been attacked by commissioners and council members representing Gary, Hammond and East Chicago, who say the move would also leave abandoned buildings in their already struggling downtowns.

Not metioned: The satellite courthouses were the focus of several law suits during the last election.

Posted by Marcia Oddi on March 16, 2010 10:06 AM
Posted to Indiana Courts

Ind. Decisions - "Contrasting futures for sex offenders"

Alicia Gallegos of the South Bend Tribune reports:

Two offenders face vastly different fates after being sentenced Monday for their sex crimes against children.

Gabriel Herbert, 22, was sentenced to 10 years in prison for sexually assaulting a 14-year-old Mishawaka girl after luring her to his home last September.

Holly Rhodes, 36, received a six-year suspended sentence and six years of probation after admitting to molesting and having intercourse with a 7-year-old boy over the course of several years.

Both Rhodes and Herbert had no prior criminal history, and each readily admitted guilt for their actions.

But Rhodes' sentence was part of binding plea agreement with the state, meaning the punishment was pre-determined before a judge's sentencing.

Herbert, on the other hand, had an open plea, meaning his punishment could be argued by both sides. He faced up to 43 years in prison.

St. Joseph County Prosecutor Michael Dvorak said Monday that aside from being sex crimes, he did not believe the two cases were similar, adding that certain circumstances in the Rhodes case affected her plea terms.

"In one case you have a family member molesting (a relative), and in the other, you have a stranger picking up a girl on the street," he said. "I see no parallel."

In the Herbert case, the man told the victim he was lost and asked for help finding a certain street. Once in the vehicle, Herbert told the girl he needed a map and drove her to his home, where the victim said he attacked and raped her.

Herbert previously pleaded guilty to two counts of criminal deviate conduct, both Class B felonies, and one count of criminal confinement, a Class D felony.

As part of the agreement, the state dismissed a count of rape against Herbert and three counts of sexual misconduct with a minor.

According to the prosecutor's office, the original three counts of sexual misconduct with a minor were filed as "alternative theories of prosecution" to the rape charge and two counts of criminal deviate conduct.

The counts relate to the same three acts alleged to have been committed by Herbert, not six separate acts. The court could only enter judgment of conviction and impose a sentence on one count for each of the alleged acts.

In the Rhodes case, the woman admitted in court to Class C felony child molestation for inappropriately touching a young boy starting from the time he was about 7 years old.

As part of a plea agreement, the state dismissed two counts of Class A felony child molestation against Rhodes.

According to court documents, Rhodes began fondling the boy in the late 1990s, but the crime only came to light when the now-teenage boy spoke to officials at the CASIE Center, telling them he had been abused until age 10.

The victim said the molestation had included sex acts and sexual intercourse.

Posted by Marcia Oddi on March 16, 2010 10:01 AM
Posted to Ind. Trial Ct. Decisions

Monday, March 15, 2010

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

In U.S. v. Angle (ND Ind., Moody), a 17-page opinion, Judge Williams writes:

This is the fourth time Ralph Angle appeals the sentences imposed for his child pornography crimes. Three times we have remanded for resentencing because of our uncertainty about the reliability of information used to justify a total period of imprisonment well above the range established by the sentencing guidelines. In our last remand we also directed the district court to explain why a “pattern of abuse” upward adjustment did not fully account for the uncharged conduct used to justify the stiff punishment. Both of these concerns have now been satisfied. Finally, the district court did not abuse its discretion in thwarting Angle from gaining personal access to the Internet during the period of his supervised release. * * *
Angle makes one additional argument that arose for the first time after our last remand. At the final resentencing, the district court imposed as a special condition of supervised release that Angle “shall not have personal access to computer Internet services.” This condition was not suggested in advance but first raised in open court during sentencing. Angle objected to that condition, and on appeal he contends that the district court was required to give him notice before imposing such a condition and that barring him from using the Internet is both unnecessary and unreasonable. * * *
Angle first argues that the court was required to give notice of its intent to impose this condition of supervised release because it was analogous to a departure from the guidelines. This argument fails. * * * the guidelines contemplate a term of supervised release, and provide the district court with broad discretion in imposing appropriate conditions for the supervised release, Angle could not reasonably believe that an Internet ban was so “out of the ordinary,” as to require notice. United States v. McKissic, 428 F.3d 719, 725 (7th Cir. 2005). In fact, the 2006 guidelines which the district court had the discretion to consult, specifically contemplate limiting the use of a computer in cases where the defendant used a computer for sex offenses. U.S.S.G § 5D1.3(d)(7)(B) (2006).
Angle next argues that the condition is unnecessary and unreasonable. We disagree. In 1997 and 1998, when the Internet was fairly new, Angle was convicted of using the Internet to solicit a minor for sex. He also used the Internet to set up a pornography trade with a distributer, and possessed an extensive amount of child pornography on computer diskettes and zip disks. Furthermore, his use of the Internet was not integrally connected to his profession as he was previously employed as a salesman and mechanic. These facts easily distinguish Angle from the defendant in Holm who was convicted of simply possessing child pornography and used the computer and Internet extensively in his occupation as a information systems technologist. Finally, unlike the district court in Holm, here the district court did not impose a complete ban on the Internet, disallowing only “personal” access to Internet services. Under these circumstances, we cannot conclude that the district court abused its discretion in thwarting Angle from gaining personal access to the Internet during the period of his supervised release.

Posted by Marcia Oddi on March 15, 2010 07:43 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 15 NFP)

For publication opinions today (1):

In Lees Inns of America, Inc. v. William Lee Irrevocable Trust , a 34-page opinion, Chief Judge Baker writes:

This eight-year-long litigation involving an Indiana-based hotel chain that was commenced under the Dissenter‟s Rights Statute has resulted in a judgment in excess of $7.5 million in favor of the minority shareholders in the corporation. Appellant-plaintiff Lees Inns of America, Inc. (Lees Inns), appeals the trial court‟s judgment in favor of appellees-defendants William R. Lee Irrevocable Trust, Donald Lee, and Robert Lee as co-trustees (collectively, the Trust), in this action that Lees Inns initiated. Specifically, Lees Inns argues that the trial court erred in refusing to appoint a master or expert appraiser to assist in calculating the value of Lees Inns‟ business. Lees Inns also claims that the trial court erroneously adopted a valuation of the business that was based, among other things, on speculative future transactions and that the evidence did not support a finding of a breach of fiduciary duty by the majority shareholder. The Trust cross-appeals, claiming that the trial court abused its discretion in awarding it prejudgment interest for only one-half of the relevant period because the Dissenters‟ Rights Statute expressly provides otherwise.

We conclude that the trial court properly exercised its discretion in denying Lees Inns‟ motion for a master or expert appraiser to assist it in calculating the value of the business. We also find that the trial court properly valued the business based on the evidence presented and that it correctly determined that the majority shareholder was in breach of his fiduciary duties that he owed to fellow directors and shareholders. Moreover, we conclude that the trial court properly disregarded a number of real estate options that were granted to the majority shareholder in determining the damages that resulted to the Trust as a consequence of the breaches of fiduciary duty. Finally, we conclude that the trial court properly reduced the amount of prejudgment interest that the Trust requested in light of the delays that resulted in bringing this matter to trial. Thus, we affirm the trial court‟s judgment in all respects.

NFP civil opinions today (5):

Greene County, Indiana, et al. v. Weddle Brothers Construction Co., Inc. (NFP) - "In this interlocutory appeal, Greene County of Indiana by and through its Board of Commissioners and Greene County Building Corporation (“Greene County”) appeals the denial of its motion for partial summary judgment regarding the effect of lien waivers and releases signed by the subcontractors and suppliers of Weddle Brothers Construction Company (“Weddle”). We affirm. * * *

"The ambiguity of the contracts raises a genuine issue of material fact and prohibits the entry of summary judgment. Due to this ambiguity, extrinsic evidence is permitted to determine the meaning and scope of the contracts."

Kevin and Nancy Green v. Community Hospitals of Indiana, Inc. (NFP) - "The Greens have not identified instructions and evidentiary rulings inconsistent with substantial justice."

Dennis Adkins v. Judy Saunders (NFP) - "Inasmuch as this is not an interlocutory appeal as of right and the trial court’s order has not been certified for a discretionary interlocutory appeal, we do not have jurisdiction over this cause. See Ind. Appellate Rule 14(A)-(B). This appeal is dismissed without prejudice and the cause is remanded to the trial court for further proceedings."

Term. of Parent-Child Rel. of C.R. and E.R.; L.R. v. IDCS (NFP)

Term. of Parent-Child Rel. of Y.O., D.N., and C.O.; N.O. v. IDCS (NFP)

NFP criminal opinions today (10):

London Hood v. State of Indiana (NFP)

O.A.O. v. State of Indiana (NFP)

Kristy Kay Oglesby v. State of Indiana (NFP)

Jerry Joe Fuentes v. State of Indiana (NFP)

Marcus Crumble v. State of Indiana (NFP)

Robert J. Droher v. State of Indiana (NFP)

Khalid Jackson-Bey v. State of Indiana (NFP)

Peter Mudd v. State of Indiana (NFP)

Lashawna Ellis v. State of Indiana (NFP)

Julie Van Orden v. State of Indiana (NFP)

Posted by Marcia Oddi on March 15, 2010 07:30 PM
Posted to Ind. App.Ct. Decisions

Ind. Law - Gov. receives more bills, but does not act on any today

Eighteen bills were received by the governor today. Check the list here.

Posted by Marcia Oddi on March 15, 2010 04:51 PM
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending March 12, 2010

Here is the Clerk's transfer list for the week ending March 12, 2010. It is 2 pages long (but that is misleading because there is a lot more information scrunched on each page).

One of the cases granted transfer last week, Regunal Dowell v. State of Indiana, was granted with opinion. Another was Oaken Bucket Partners v. Hamilton County Property Tax Assessment Board, a tax case granted review. Both are discussed in this entry from March 11th.

Also granted transfer was a NFP opinion from April 30, 2009, Michael Francis v. Lawrence T. Newman (NFP).

Also on the transfer list with a grant is Isby v. State, for which there is "no opinion."

__________

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the Jan. 22, 2010 list.

Six years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on March 15, 2010 04:28 PM
Posted to Indiana Transfer Lists

Law - An incredible resource coming Wednesday via C-SPAN [Updated]

From the end of a story by the Washington Post's Chris Cillizza:

On Wednesday, C-SPAN will launch a searchable video library that includes all of its programming dating to 1987.

Which means that, if you were so inclined, you could watch every one of the late Sen. Ted Kennedy's floor speeches or relive Barack Obama's speech at the 2007 Iowa Democratic Party Jefferson-Jackson Dinner.

Of the video library, C-SPAN co-president Susan Swain said: "Its extensive holdings will allow the public to see how elected officials, politicians, journalists, experts, authors and other opinion leaders present themselves on the issues of the day and over time."

Bonuses: A "Congressional Chronicle" feature lets viewers to search all floor speeches and committee remarks for any member, and built-in tools allow you to post a video link to Facebook, Twitter or e-mail.

All told, C-SPAN is putting online 160,000 hours of searchable content on Wednesday. The Fix now knows what we will be doing with our weekends for the foreseeable future.

[Updated 3/16/10] Brian Stelter reports today in the NY Times:

WASHINGTON — Researchers, political satirists and partisan mudslingers, take note: C-Span has uploaded virtually every minute of its video archives to the Internet.

The archives, at C-SpanVideo.org, cover 23 years of history and five presidential administrations and are sure to provide new fodder for pundits and politicians alike. The network will formally announce the completion of the C-Span Video Library on Wednesday.

Having free online access to the more than 160,000 hours of C-Span footage is “like being able to Google political history using the ‘I Feel Lucky’ button every time,” said Rachel Maddow, the liberal MSNBC host. * * *

C-Span has been uploading its history for several years, working its way to 1987, when its archives were established at Purdue University, Mr. Lamb’s alma mater.

The archive staff now operates from an office park in West Lafayette, Ind., where two machines that can turn 16 hours of tapes into digital files each hour have been working around the clock to move C-Span’s programs online. They are now finishing the 1987 catalog.

“This is the archive’s coming of age, in a way, because it’s now so accessible,” said Robert Browning, director of the archives.

Posted by Marcia Oddi on March 15, 2010 09:38 AM
Posted to General Law Related

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

Here is the answer to "What did you miss from the ILB during the weekend?" The General Assembly adjourned sine die early Saturday morning, without overriding the Governor's veto of last year's bill (HEA 1491-2009) that would have made all courts in St. Joe County elective and would have added a new 6th District to the Court of Appeals. Here is more:

From Sunday, March 14, 2010:

From Saturday, March 13, 2010:

From late Friday, March 12, 2010:

Posted by Marcia Oddi on March 15, 2010 07:48 AM
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 3/15/10):

Wednesday, March 17th

9:00 AM - Indiana High School Athletic Association v. Jasmine S. Watson ( 71S03-1002-CV-119) - The Indiana High School Athletic Association ("IHSAA") determined Jasmine Watson was ineligible to play sports during her senior year at South Bend Washington High School because her move and transfer to Washington High occurred for primarily athletic reasons and because of improper undue influence. The trial court entered a preliminary injunction prohibiting the IHSAA from enforcing its eligibility decision. A majority of the Court of Appeals affirmed. IHSAA v. Watson, 913 N.E.2d 741 (Ind. Ct. App. 9/24/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
[For background start with this ILB entry from March 3, 2010.]
9:45 AM - Termination of the Parent-Child Relationship of I.A.; J.H. v. IDCS (62A01-0905-JV-252) - The Perry Circuit Court terminated a father's parental rights, and the Court of Appeals affirmed in an unpublished memorandum decision, In re I.S. (J.H. v. Ind. Dept. of Child Serv., No. 62A01-0905-JV-252, slip op.(Ind. Ct. App. Dec. 10, 2009), trans. pending. The father has petitioned the Supreme Court to accept jurisdiction over the appeal asserting the evidence supporting termination was insufficient.
[Here is the COA's 12/10/09 NFP opinion]

Next week's oral arguments before the Supreme Court (week of 3/22/10):

None currently scheduled.

This week's oral arguments before the Court of Appeals (week of 3/15/10):

None currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 3/22/10):

Next Tuesday, March 23rd

2:00 AM - Vicki Sue Maze v. Robert L. Davenport & Corey Filson (50A03-0911-CV-531) - Vicki Sue Maze ("Maze") appeals the trial court's grant of summary judgment in favor of Robert L. Davenport ("Davenport") and Corey Filson ("Filson"). The trial court concluded that Maze's claim for damages for breach of contract was barred by the Statute of Frauds, because no writing exists that sets forth the terms of Davenport's oral promise to convey real estate. Maze argues that she designated sufficient evidence to establish the elements of the equitable doctrines of part performance and promissory estoppel, which would remove her claims from application of the Statute of Frauds. She also argues that the trial court erred in failing to address her unjust enrichment claim. The Scheduled Panel Members are: Judges Kirsch, Darden and May. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
5:00 PM - Richard L. Barnes v. State of Indiana (82A05-0910-CR-592) - Richard Barnes was convicted of Class A misdemeanor battery on a police officer, Class A misdemeanor resisting law enforcement, and Class B misdemeanor disorderly conduct. Barnes appeals his convictions and argues that the evidence is insufficient to support his convictions. Barnes also claims that the trial court abused its discretion when it refused Barnes tendered jury instruction concerning resisting unlawful entry into the apartment he shared with his estranged wife. The Scheduled Panel Members are: Judges Mathias, Crone and Brown. [Where: Indiana University Law School-Indianapolis, Wynne Moot Courtroom, Indianapolis, Indiana ]

Next Thursday, March 25th

11:00 AM - Derrick Bush v. State of Indiana (49A02-0907-CR-682) - Derrick Bush was convicted of carrying a handgun without a license, a Class A misdemeanor, following a stop and search of a car Bush was driving. Bush appeals his conviction, contending the warrantless search of the automobile was in violation of the Fourth Amendment to the United States Constitution and Article 1, section 11 of the Indiana Constitution and the trial court therefore abused its discretion in admitting evidence of the handgun. The Scheduled Panel Members are: Chief Judge Baker, Judges Bailey and Robb. [Where:Richardson Chapel, Franklin College, 101 Branigan Boulevard, Franklin, Indiana]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

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

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

Posted by Marcia Oddi on March 15, 2010 07:44 AM
Posted to Upcoming Oral Arguments

Sunday, March 14, 2010

Ind. Law - Still more on: What happened ...

Here is Eric Bradner's exhaustive coverage of what happened as a result of the 2010 General Assembly session, from today's Evansville Courier & Press.

Posted by Marcia Oddi on March 14, 2010 05:51 PM
Posted to Indiana Law

Ind. Courts - Even more on: "Judges to jurors: Stay off the Web"

Updating this ILB entry from March 5, 2010, which links to the newly released Indiana juror rule amendments, effective July 1, 2010, News24.com, out of South Africa, had this story earlier this month headed "Online jurors cause court chaos." Some quotes:

San Francisco - Enough with the tweets, the blogs, the internet searches.

That's the message being communicated by courts across the US as jurors using their portable electronic devices continue to cause mistrials, overturned convictions and chaotic delays in court proceedings. * * *

The rules for jury service in state and federal courts alike are evolving to grapple with this 21st century issue. New jury instructions are being adopted and electronics are being banned from courtrooms.

In January, the federal court's top administrative office, the Judicial Conference of the United States, issued so-called "Twitter instructions" to every federal judge, which are designed to be read to jurors at the start of the trial and before deliberations. [ILB - See this Feb. 3, 2010 entry re the federal memorandum.]

"You may not use any electronic device or media" in connection with the case, the recommended federal instructions admonish. They also bar visits to "any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter".

The guidelines were developed "to address the increasing incidence of juror use of such devices as cellphones or computers to conduct research on the internet or communicate with others about cases," according to a memo to federal judges from the committee's chief, US District Court Judge Julie Robinson of Topeka, Kansas. * * *

The Supreme Court in Michigan ordered judges there starting on September 1 to order jurors to refrain from using cellphones, computers and other electronic devices to discuss cases before them.

San Francisco Superior Court on January 1 began including such instructions after some of the 600 jurors said they went online because there were no explicit prohibitions against such independent research.

"You may not do research about any issues involved in the case," the new instruction states. "You may not blog, Tweet, or use the internet to obtain or share information."

A California legislator last month introduced a bill that would charge wayward jurors with a crime.

Several courts from Fort Wayne, Indiana, to tiny Malheur County in eastern Oregon have gone so far as to completely ban electronic devices.

After electronic communications caused two mistrials, St Paul, Minnesota, residents called to jury duty are now warned: "Do not bring wireless communication devices: phones, pagers and PDAs. Phones are available in the Jury Assembly Room."

The issue first surfaced a few years ago, but has only in the last few months garnered widespread attention because of the increased number of high-profile and disruptive incidents. * * *

While federal judges hope the new jury instructions will significantly limit jury problems, the National Centre for State Courts in Williamsburg, Virginia, said state judges continue to grapple with how best to deal with the issue.

"The thing that makes the electronic media issue a little different is that it is so accessible and anonymous," said Greg Hurley, an analyst at the centre. "Jurors face exposure if they go to the library or drive by a crime scene - but there's little risk in going online."

Jon Murray of the Indianapolis Star has an excellent feature story today on the new rules. Unfortunately, it won't be available online until mid-week under a new Star policy. At that point (if I remember) I will add the link here.

Posted by Marcia Oddi on March 14, 2010 12:39 PM
Posted to Indiana Courts

Ind. Gov't. - "Indiana gets an F for public access"

It is Sunshine Week again, and the Fort Wayne Journal Gazette is running a four-part series. Today Dan Stockman has a long story headed "State gets an F for public access: Indiana has no enforcement of its open record laws." Some quotes:

“You are on your own,” said Lucy Dalglish, of states, like Indiana, that have no mechanism to enforce their laws that require the public be able to watch their government make decisions and be able to see the paperwork surrounding it.

Dalglish is executive director of the Reporters Committee for Freedom of the Press, an Arlington, Va., advocacy group.

“We’ve never been able to get (enforcement provisions) on the federal level, either. And so a lot of people on the state and local level are saying, ‘We’re just doing what we’re told.’ ”

Indiana has laws that require public bodies such as city councils, school boards, state panels, zoning boards and others to allow residents to watch them work. It also has laws that require, with narrow exceptions, the paperwork generated by government to be given to those who ask to see it.

But violating those laws – known in Indiana as the Open Door Law and the Access to Public Records Act – brings no punishment for those who tell Hoosiers “No.”

Citizens who feel they have been illegally denied a document or access to a meeting can file a complaint with the Indiana Public Access Counselor, who can write a non-binding opinion on the matter. Their only other recourse is to sue the agency in question, but the judge can only require the record to be released, not impose a fine on the agency no matter how flagrant the violation. * * *

“I’m not a psychologist, but something happens to people when they work in these public agencies for a while,” said Tony Fargo, an Indiana University professor specializing in media law. “They start to see the records as ‘their’ records instead of ‘our’ records. They’re keeping and preserving those records for us so we can keep up with our government.” * * *

An attempt to add a $1,000 penalty to willful, knowing violations of Indiana’s access laws died in the General Assembly last year: The proposed $1,000 fine was lowered to $100, and though it passed the Senate 49-0, it couldn’t even get a hearing in the House.

Another attempt this year – with a penalty of $100 for willful, knowing violations – passed the House 97-0 but died in the Senate. * * *

“That is a big hole in Indiana law,” said Keith Robinson, president of the Indiana Coalition for Open Government. “I think you’ll find Indiana’s laws, by comparison (to other states’), are fairly weak.”

The survey of state laws by the Better Government Association and the National Freedom of Information Coalition graded states on factors such as how long officials have to turn over documents, the appeals process, fees and enforcement.

For the appeals process, Indiana scored 0.5 points out of 2 because citizens have no true administrative remedy when they’re denied records and their only choice is to go to court.

It received 1 point out of 2 for its provision allowing expedited review of court cases but failed to score higher because an expedited review is not required, meaning a court case could take months before it even gets a first hearing.

It scored 4 out of 4 points for its fees, because the law requires that the reasonable attorney fees be paid for citizens who sue and win, if they go through the Public Access Counselor process first.

Indiana got zero of 4 points in the sanctions category, because it does not have any.

It did, however, get 4 points out of 4 under “response time,” because agencies are required to give citizens a response within seven days of their request. But even that is a loophole and one that Robinson said “really got my blood going.”

The problem, he said, is that the law requires a response – not the documents – in seven days. The agency can simply respond within seven days that it is working on the request, then never comply, because there is nothing in the statute that says when records must be provided.

“There’s nothing in the law that says you have to turn them over in a certain amount of time,” Robinson said. “Months might go on.”

Robinson said among the provisions that advocates hoped to strengthen was a requirement that records be turned over in a “reasonable” amount of time. Even that couldn’t pass, he said.

“We tried to get that one word inserted into the law,” Robinson said. “It didn’t happen.”

There is much more to the article.

Posted by Marcia Oddi on March 14, 2010 12:24 PM
Posted to Indiana Government

Ind. Courts - "More probationers showing up drunk, Porter County Courthouse now armed with portable breath testers"

Interesting story here by Bob Kasarda of the NWI Times on the problem and how it is being addressed in the Porter County Courthouse.

Posted by Marcia Oddi on March 14, 2010 10:02 AM
Posted to Indiana Courts

Ind. Law - More on: What happened ...

Some wrap-ups. Here are a couple wrap-ups.

Mary Beth Schneiderand Bill Ruthhart of the Indianapolis Star has a lengthy story headed "From taxes to guns: a scorecard: Property tax caps to go to voters in November; higher taxes on jobless insurance are delayed."

"Lawmakers tout session; Daniels blasé" is the headline to Nki Kelly's story in the Fort Wayne Journal Gazette.

Wonder how effective your legislator was in getting legislation passed? The Gary Post-Tribune has a useful "list of successful bills authored by region lawmakers. This list does not include bills where local legislators were listed as co-authors or sponsors."

A complaint. And this happens every session, weekend or not. The minute the General Assembly adjourns sine die, the GA site stops being updated. It is often days before all the information from the last couple days is posted. This is a problem especially if you are interested, as here, in what happened to bills in conference during those last couple days that were not part of the compromise package.

For instance, here, this morning, is the list of Enrolled Acts passed by this session. It does not include the bills passed Friday night/Saturday morning.

Action on vetoed bills -- there were two on the House calendar - produces a blank page.

Table of Citations Affected - last updated last Thursday morning.

This Bill Action History does appear to be current, insofar as legislative action is concerned, although SB 149 is boldfaced but does not appear to have been adopted by House conference committee.

Posted by Marcia Oddi on March 14, 2010 09:26 AM
Posted to Indiana Law

Saturday, March 13, 2010

Courts - "The Second Circuit held Friday that a ban on the use of nicknames like "Heavy Hitters" or client testimonials about pending cases violates the First Amendment."

A New York attorney has successfuuly challenged the New York rules on lawyer advertising. Here are some quotes from a lengthy March 15, 2010 story in the New York Law Journal:

In rejecting the bulk of New York's content-based restrictions on attorney advertising, the U.S. Court of Appeals for the Second Circuit held Friday that a ban on the use of nicknames like "Heavy Hitters" or client testimonials about pending cases violates the First Amendment.

The circuit also held that preventing lawyers from employing special effects or portraying a judge in an ad did not "materially advance" the state's interest in prohibiting misleading speech.

"The speech that Defendants' content-based restrictions seeks to regulate—that which is irrelevant, unverifiable, and non-informational—is not inherently false, deceptive, or misleading. Defendants' own press release described its proposed rules as protecting consumers against 'potentially misleading ads,'" the panel wrote in Alexander v. Cahill, 07-3677-cv, 07-3900- cv.

Posted by Marcia Oddi on March 13, 2010 01:44 PM
Posted to Courts in general

Ind. Decisions - More on: Supreme Court suspends LaPorte County judge

Updating this ILB entry from March 11, 2010, Matt Field of the LaPorte Argus Herald writes today:

Judge Jennifer Evans-Koethe apologized to La Porte County residents Friday in press release and said she looks forward to resuming her duties after her court-ordered 60-day suspension.

The Indiana Supreme Court on Thursday accepted an agreement between Evans-Koethe and the Indiana Judicial Qualifications Commission and suspended the beleaguered judge for 60 days for misconduct and stipulated other provisions as well.

“I am truly sorry for those actions and apologize to the citizens of La Porte County for any conduct of mine that has not promoted the public’s confidence in the judiciary,” Evans-Koethe said in the statement. * * *

Although a grand jury indicted her for attempted obstruction of justice, she was acquitted by a jury in January.

“Although I was not guilty of a crime by a jury of my peers, I am accepting responsibility for the actions that have not reflected the standard of conduct that a judge is required to uphold,” Evans-Koethe said in the statement.

Evans-Koethe had been suspended with pay until the Supreme Court decision Thursday.

In addition to the unpaid suspension, the agreement Evans-Koethe made with the Indiana Judicial Qualifications Commission stipulates that for one year after she resumes her judgeship, she will recuse herself when certain witnesses that had been involved in her investigation are to appear in court.

She also will seek to address underlying personal issues.

“Upon the completion of my suspension, I look forward to moving on with my life, resuming my duties as judge and restoring the public’s confidence in my position,” Evans-Koethe said.

Posted by Marcia Oddi on March 13, 2010 01:33 PM
Posted to Indiana Courts

Ind. Gov't. - Encourage CAFOs, penalize small farmers and meat processors?

Doesn't seem right. At my local farmer's market this winter every third stand seems to be selling locally produced meat or poultry. There is great interest in buying from small Indiana farmers and processors. But instead of our state department of agriculture encouraging this, the state administration is cutting back on state meat inspections, without which there can be no sales.

The Fort Wayne Journal Gazette has an editorial this morning:

No question Indiana needs to trim its budget. But one proposed cut will likely create an undue financial burden on a state economic sector with promising growth. State officials should consider whether laying off meat inspectors to save money is worth the damage to Indiana’s smaller farmers and meat processors.

In January, the Indiana Board of Animal Health announced it was cutting its inspection program by 50 percent. The board said it would rethink the Draconian cuts after complaints flooded Gov. Mitch Daniels’ office. But it remains unclear exactly how many of Indiana’s 52 meat inspectors will lose their jobs.

A board official said the cuts are “still a work in progress.” The final trims are supposed to take effect July 1. But state-inspected meat and poultry producers are already operating under curtailed inspection schedules, and inspectors are spending fewer hours on site at slaughterhouses.

Meat and poultry must be inspected before it can be sold. Having fewer inspectors will slow that process, making it difficult to meet demand for locally raised meat. The cuts will hurt one of the few areas in the state’s economy that is growing. It’s also an industry that Daniels has previously held up as an economic development opportunity for the state. * * *

There’s no debate that decreased tax revenue means state officials need to decrease spending to balance the budget. But state leaders need to be cautious about making cuts that will hamper one of the few state industries that is experiencing job growth and is so crucial to public health.

And the Indianapolis Star has a long story, dated March 10, that begins:

Indiana's plan to lay off some meat inspectors to save money and reduce the time inspectors spend with small, independent processors has the industry and farmers fearing it could hurt what has been a growing industry.

It's not clear how many of the state's 52 inspectors will be let go, but meatpackers say any layoffs will prevent them from growing to meet demand for locally raised meat.

And, if state inspectors are scarce or unavailable, small meatpackers who can't afford to upgrade for federal inspections could cut back their operations or go under.

Their fears highlight a dilemma lawmakers in many states face as tax revenues decline and they struggle to balance budgets: How deeply do they cut programs that are essential to growing segments of their economies and could generate new tax revenues?

Posted by Marcia Oddi on March 13, 2010 10:50 AM
Posted to Environment | Indiana Government

Ind. Law - What happened ...

Masson's Blog has just posted a detailed list of the five bills that passed last night and are on their way to the Governor.

Dorothy Schneider of the Lafayette Journal Courier reports: "Bill fails to extend vote centers' life." It begins:

Tippecanoe County lawmakers and election officials were frustrated by a blow dealt to vote centers in the waning hours of the Indiana General Assembly session Friday.

"I think it's over," Rep. Sheila Klinker, D-Lafayette, said of the viability of House Bill 1106. "I'm very disappointed."

That bill would have allowed vote centers to continue in Tippecanoe County after this year, but was tied to controversial language about statewide absentee voting through the mail.

Sen. Ron Alting, R-Lafayette, described the situation as: "It's like getting a good scoop of ice cream and putting a topping on it that nobody likes."

Alting blamed Democratic leadership, though not Klinker, for insisting on an absentee voter provision in the bill. Klinker, and other key Democrats in the House, argued that the absentee language was in the bill from the beginning and should remain.

The provision for no-fault absentee voting by mail statewide would allow voters anywhere to cast early ballots by mail, even if they do not meet the current criteria for voting absentee.

The language passed narrowly in the House and was removed from the bill in the Senate. Some Republicans argued it would increase instances of voter fraud, but Democrats said there are other safeguards to prevent that.

Instead of passing blame Friday, Tippecanoe County election officials started thinking about what to do for next year's elections.

The vote center system will be eliminated before the 2011 municipal elections without legislative action. Tippecanoe County officials have estimated that next year's elections will cost at least $50,000 more if they have to use precincts instead of centralized vote centers.

More later, possibly a run-down of how "budget bill surprises" from 2009 were dealt with in 2010.

But first, a few paragraphs from a story today in the NWI Times, reported by Dan Carden:

The unemployment legislation had been a sticking point for several days, with Senate Republicans insisting on a two-year delay in the rate hike, while House Democrats supported a total repeal, so long as Democratic job-creation proposals were included in the legislation.

A tentative compromise on the unemployment legislation was reached Friday evening, but for a while it was not certain the deal would be approved. Female Democratic representatives engaged in a self-described "girlcott" of the Democratic party meeting where details of the final proposal were revealed. Their angst stemmed from a decision by the all-male House Democratic leadership to take pending legislation sponsored by state Rep. Peggy Welch, D-Bloomington, strip out her proposal and use that bill for other legislation.

State Rep. Linda Lawson, D-Hammond, and several female legislators voted against the unemployment legislation to show they felt it was wrong for House leaders to steal Welch's legislation.

"It's time that they recognize there are 14 women who are smart, who are bright and should be brought to the table," Lawson said. "It was time to stand up for Peggy, and we did."

Posted by Marcia Oddi on March 13, 2010 10:22 AM
Posted to Indiana Law

Friday, March 12, 2010

Courts - Still more on "Test Case Linking Vaccines and Autism Reaches Federal Court"

Updating this ILB entry from June 10, 2007, the LA Times reports today, in a story by Thomas H. Maugh II and Andrew Zaja, headed "'Vaccines court' rejects mercury-autism link in 3 test cases." The story begins:

Reporting from Washington and Los Angeles
The federal "vaccines court" ruled Friday in three separate cases that the mercury-containing preservative thimerosal does not cause autism, a finding that supports the broad scientific consensus on the matter but that greatly disappointed parents who are convinced that their child's illness was caused by vaccines.

The court had ruled 13 months ago that a combination of the measles-mumps-rubella vaccine, commonly known as the MMR vaccine, and thimerosal does not cause the disorder, so the new ruling may finally close the bulk of litigation on the matter. The earlier ruling has been appealed to the U.S. Court of Appeals, and this one most likely will be also, but most experts think the court will uphold the decision.

A claim that the MMR vaccine alone causes autism has been withdrawn by parents.

More than 5,300 parents had filed claims with the vaccines court, a branch of the U.S. Court of Federal Claims, seeking damages because they believed their children had developed autism as a result of vaccinations. And they reacted bitterly to Friday's ruling.

Also, on Monday the SCOTUS granted cert in "Bruesewitz v. Wyeth, in which the Court will consider whether and when vaccine manufacturers can be sued outside of the special “vaccine court” established by Congress to address vaccine-related injuries." Per SCOTUSblog. More here.

Posted by Marcia Oddi on March 12, 2010 07:59 PM
Posted to Courts in general

Ind. Court - CCR Filed for SB149 removes language re placement of children by juvenile courts outside of Indiana

Take a look here. Remember what happened in the SS Conference Committee Report last year - it was one of the "budget bill surprises."

Start with this Aug. 13, 2009 ILB entry for background.

Posted by Marcia Oddi on March 12, 2010 03:44 PM
Posted to Indiana Courts

Ind. Decisions - One Indiana case decided today by 7th Circuit

In U.S. v. Sykes (SD Ind., McKinney), a 12-page opinion, Judge Bauer writes:

Defendant Marcus Sykes pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(e). The district court enhanced Sykes’ sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), having determined that he had previously been found guilty of three violent felonies. * * *
For the reasons set forth above, fleeing police in a vehicle in violation of Ind. Code § 35-44-3-3(b)(1)(A) is sufficiently similar to ACCA’s enumerated crimes in kind, as well as the degree of risk posed, and counts as a violent felony under ACCA. We affirm.

Posted by Marcia Oddi on March 12, 2010 01:18 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Vanderburgh Circuit Court rejects Presbyterian Church (USA) claims to a local church's property

The only writeup the ILB has seen of the March 9, 2010 decision by Judge Carl Heldt is in The Layman Online, an online national publication of the PCUSA, where Parker T. Williamson reports in a lengthy story that begins:

Citing conflicting interpretations of the Presbyterian Church (USA) Book of Order, and affirming that the First Amendment of the U.S. Constitution prohibits civil court interpretations of ecclesiastical documents, Indiana Judge Carl Heldt of the Vanderburgh Circuit Court has rejected PCUSA claims to a local church’s property.

At issue was an attempt by the Presbytery of Ohio Valley and the Synod of Lincoln Trails to seize property belonging to the Olivet Presbyterian Church, a former PCUSA congregation in Evansville, Ind., that left the denomination in order to join the Evangelical Presbyterian Church. Heldt rejected claims based on a “trust clause” in the PCUSA constitution and based his ruling in favor of the local church on “neutral principles of law.”

“The evidence shows that the deed and documents of ownership specifically provide that the real and personal property at issue in this case are held solely by the Olivet congregation rather than in trust for the PCUSA,” said the court.

In a letter to The Layman, Olivet Pastor Dave Mills said, “We are grateful for the verdict that the court agrees with what we had understood from the beginning – that indeed Olivet has always been and should continue to be God’s steward of this property. We are also grateful for the prayers and encouragement of our brothers and sisters throughout the country who have been following these developments.”

The story provides a link to the 29-page opinion by Judge Heldt.

Posted by Marcia Oddi on March 12, 2010 11:21 AM
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Term. of Parent-Child Rel. of A.B., et al.; A.B. v. IDCS, an 11-page opinion, Judge Mathias writes:

A.M.B. (“Mother”) appeals the involuntary termination of her parental rights to her three children, A.B., J.B., and M.M. Mother raises several allegations of error, including an assertion that she was denied due process of law when she was not permitted to testify during the termination hearing. Although Mother was twenty minutes late to the termination hearing, which itself commenced more than an hour behind schedule, we believe that under the unique facts and circumstances before us, she should have been afforded the opportunity to testify. In light of the constitutional dimensions of the right to parent one’s child, we reverse and remand for at least the opportunity for Mother to be heard.

In State of Indiana v. Natasha Durrett, a 15-page, 2-1 opinion, Judge Vaidik writes:

The State appeals the trial court’s dismissal of a case in which Natasha Durrett allegedly drove a van that struck someone, resulting in serious bodily injury to that person, and allegedly failed to return to the scene of the accident. The State contends that the trial court abused its discretion in concluding that the absence of the van, the victim, and the investigating officer warrants dismissal. We find no evidence of bad faith in the State’s failure to preserve the van, no denial of Durrett’s right of confrontation due to the victim’s absence as a witness, and no evidence of bad faith in the State’s failure to provide discovery. Accordingly, we conclude that the trial court abused its discretion in granting Durrett’s motion to dismiss. We therefore reverse. * * *

CRONE, J., concurs.
RILEY, J., dissents with separate opinion. [that begins] I respectfully dissent. The trial court determined that the cumulative effect of the missing instrumentality alleged to have been used in Durrett’s act (the van), the missing alleged victim, and the unavailability of the lead investigating officer endangered Durrett’s fundamental due process rights. I fail to see how we are in a position to determine that the trial court’s decision “is clearly against the logic and effect of the facts and circumstances,” which is the standard we must apply when reviewing the trial court’s dismissal. State v. Fettig, 884 N.E.2d 341, 343 (Ind. Ct. App. 2008), reh’g denied.

In State of Indiana v. Dustin Prater, a 10-page, 2-1 opinion, Judge Najam writes:

Pursuant to Indiana Code Section 35-38-4-2(3), the State appeals the trial court’s order granting Dustin Prater’s Motion to Correct Error. The State raises a single issue for our review, namely, whether Indiana Code Section 35-48-4-14.5(c) requires an individual in possession of anhydrous ammonia have the personal “intent to manufacture methamphetamine or amphetamine” in order to commit a Class D felony under that statute. We affirm. * * *

In sum, the plain language of Indiana Code Section 35-48-4-14.5(c) requires that the person who possesses anhydrous ammonia have the intent to use that chemical in the manufacture of methamphetamine to commit a Class D felony. When a statute is unambiguous, our interpretation is controlled by the statute’s express language. Ind. Pesticide Rev. Bd., 916 N.E.2d at 181. Here, the State presented no evidence that Prater personally intended to manufacture methamphetamine. As such, we must affirm the trial court’s grant of Prater’s motion to correct error, vacating his conviction under Indiana Code Section 35-48-4-14.5(c).

FRIEDLANDER, J., concurs.
BRADFORD, J., dissents with separate opinion. [that begins] In my view, persons who possess anhydrous ammonia for purposes of manufacturing methamphetamine, even if they intend for another individual to do the manufacturing, are covered under Indiana Code section 35-48-4-14.5(c) (2007). For this reason, I respectfully dissent.

NFP civil opinions today (2):

Brian D. Horner v. Jennifer L. Horner (NFP)

Term. of Parent-Child Rel. of Y.O., D.N., and C.O.; S.N. v. IDCS (NFP)

NFP criminal opinions today (4):

Jason Reeves v. State of Indiana (NFP)

Roger Wilson v. State of Indiana (NFP)

Edgar Burelison v. State of Indiana (NFP)

James L. Croom v. State of Indiana (NFP)

Posted by Marcia Oddi on March 12, 2010 10:37 AM
Posted to Ind. App.Ct. Decisions

Courts - "3rd Circuit Asked to Clarify Student Internet Speech Cases"

Read this in conjunction with yesterday's ILB entry, "School sued for punishing teens over MySpace pix."

Shannon P. Duffy of The Legal Intelligencer reports today in a story headed "3rd Circuit Asked to Clarify Student Internet Speech Cases" that begins:

Cutting-edge questions in the First Amendment arena have recently stemmed from clashes between students and school districts over the limits -- if any -- that may be imposed on speech posted on social networking sites like MySpace and Facebook.

The cases sometimes pose difficult questions because the students claim that their speech occurred entirely outside of school, while school officials contend that discipline is warranted because the intended audience was the school community and the goal was to create a disturbance.

Now lawyers on both sides of the issue are urging the 3rd U.S. Circuit Court of Appeals to vacate two recent -- and seemingly conflicting -- decisions by two different three-judge panels, and to hold rearguments before the full court. Both cases involved high school students who were suspended for creating fake MySpace pages on their home computers to ridicule their principals.

Outsiders are also weighing in with amicus briefs that say the rulings have muddied the waters and left students and school officials guessing about where the lines have been drawn.

Lawyers for student journalists argue that the conflicting rulings will invite censorship. And lawyers who specialize in juvenile law argue that teenagers have always ridiculed authority figures and that courts should not condone punishing kids for their speech outside school hours and off school grounds.

While the legal issues in the two cases appeared identical, the courts reached opposite conclusions -- both at the trial level and on appeal.

Posted by Marcia Oddi on March 12, 2010 10:17 AM
Posted to Courts in general

Ind. Decisions - "Valpo Cafe vows to press its case against VU"

The Court of Appeals' Feb. 1, 2010 decision in Borovilos Restaurant Corporation, II v. Lutheran University Association, Inc. (ILB summary here - 3rd case) is the subject of a story today by James D. Wolf Jr. in the Gary Post Tribune. Some quotes:

The attorney for Broadway Café wants to take the restaurant's suit against Valparaiso University to the Indiana Supreme Court because he said a previous appellate decision will affect commercial leasing throughout the state.

In February, The Indiana Court of Appeals ruled that the university was not denying lease rights to restaurant owner George Borovilos, upholding a decision by Porter County Superior Court Judge Roger Bradford.

But it went beyond Bradford's July 2009 ruling, Attorney Stephen Bower said.

In 1999, Borovilos signed an agreement with neighboring Kelsey's Steakhouse for shared parking lot spaces and expenses.

Borovilos filed the suit against Valparaiso University in 2007, claiming his business was hurt when the university fenced off the area where the Kelsey's building had been and land east of there.

Bradford ruled that the university as new owners didn't have to provide all of the old Kelsey's parking, Bower said.

However, the appellate court ruled that Broadway Café has no rights whatever to the land where Kelsey's once stood, although the owners before the university signed a sublease agreement that allowed it, he said.

That makes the Silhavy Road entrance to the restaurant and about 40 percent of the U.S. 30 entrance off limits to Broadway because it's on land that used to house Kelsey's.

Bower said that if, as the Court of Appeals ruled, the only way to have joint parking and guaranteed access rights is by direct deed with property owners instead of sublease, major mall stores are in trouble.

Mall owners usually lease to management groups, which sublease to tenants.

Posted by Marcia Oddi on March 12, 2010 10:11 AM
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Federal Judge orders Pastrick, allies to pay $108M to East Chicago

Some quotes from Dan Hinkel's report today in the NWI Times:

HAMMOND | Region political icon Robert Pastrick and two former allies have been ordered to pay more than $108 million to the city of East Chicago in the landmark civil case centered on the sidewalks-for-votes scandal that capped Pastrick's 33-year mayoral reign.

Hammond federal Senior Judge James Moody filed his opinion Thursday afternoon, calling for Pastrick, former aide James Fife III and missing former City Councilman Frank Kollintzas to pay the city $108,007,584.33 in damages for the alleged racketeering scheme.

Indiana Attorney General Greg Zoeller, who inherited the state's lawsuit against Pastrick from former Attorney General Steve Carter, said Thursday in a written statement he was "enormously pleased" with the $108 million judgment the state's lawsuit secured on behalf of the city. That amount will symbolize the "brazen and shameless" corruption of the Pastrick administration, Zoeller said.

"This case is historic; never before has a city government been adjudged a corrupt organization under federal racketeering laws," Zoeller said.

"This is a victory for the state of Indiana," Zoeller said.

Speaking on behalf of current Mayor George Pabey, East Chicago spokesman Damian Rico said: "The city of East Chicago is grateful the court has indicated the importance returning the money to the city, which will further enhance our efforts to continue moving East Chicago in the right direction. That includes furthering our efforts to create jobs, and especially in our economic development effort.

"We're also hopeful that the attorney general considers returning the proceeds of the performance bond that the city purchased from the past administration, totaling half a million dollars."

Pastrick's attorney, Mike Bosch, said the former mayor has few assets and the judgment is "uncollectable." Kollintzas disappeared years ago, and Bosch said he believes Fife also does not have significant assets the government could take. * * *

Moody's decision was not a total legal victory for the state. He devotes much of the second half of the 53-page opinion to denying the state's claims. He denied certain claims for damages. Moody denied the state an injunction banning the defendants from public office. The state asked Moody to order a "forensic audit" of Second Century and the Foundations of East Chicago, the beneficiaries of a casino revenue deal engineered by Pastrick that remains controversial today. Moody denied that request, writing that he would not order such an accounting without violating due process. Moody also declined to rescind the agreement between the city and Second Century.

Moody did order the defendants to pay the state's legal fees. The state hired Chicago lawyer Patrick Collins to handle the RICO case, and a hearing will be held to determine the fees that will be awarded.

"So now we're going to get a chance to find out how much the attorney general of Indiana was willing to spend to get what I believe to be an uncollectable judgement," Bosch said.

Zoeller continues to pursue Second Century, most recently pushing city officials not to settle their legal fight with the for-profit company over millions of casino cash. Mayor George Pabey, who remains under federal indictment on charges he embezzled city funds, wants to settle the court battle. Zoeller seeks an accounting from the organizations that have reaped the casino money.

Here is AG Zoeller's press release.

Here, via the AG, is a link to Judge Moody's 53-page opinion in State v. Pastrick.

Posted by Marcia Oddi on March 12, 2010 09:15 AM
Posted to Ind Fed D.Ct. Decisions

Thursday, March 11, 2010

Ind. Courts - Still more on "School sued for punishing teens over MySpace pix"

Updating this ILB entry from Oct. 31, 2009, relating to "two girls, both sophomore fall-sport athletes, [who] were suspended from extracurricular activities for the entire school year because of sexually suggestive photographs posted on their pages on MySpace, a social networking site on the Internet." More from the Oct. 28, 2009 story in the Fort WayneJournal Gazette:

The lawsuit names the district and Churubusco High School Principal Austin Couch, both individually and in his official capacity, and alleges that Couch and the district violated the girls’ First Amendment rights by how the situation was handled.
The ACLU seeks to have the case handled as a class-action on behalf of all students participating in, or who may participate, in extracurricular activities at Smith-Green Community Schools, according to court documents.

Today Judge Philip P. Simon, ND Ind., issued a 10-page order denying class certification. Here are some quotes:

T.V. and M.K. are sophomores at Churubusco High School in Whitley County, Indiana, and Austin Couch is the principal of the school. T.V. and M.K., by their parents as next friends, bring this case pursuant to 42 U.S.C. §1983, challenging the constitutionality of a policy of Churubusco High School, administered by Mr. Couch as the principal, which they contend violates their First Amendment rights. In the motion presently before the court, T.V. and M.K. seek the certification of a class composed of students subject to the allegedly unconstitutional policy. But because the typicality and commonality requirements of Rule 23(a) have not been met, the motion for class certification will be denied. * * *
Here, for the reasons noted above, I conclude that class certification is not appropriate for failure of the requirements of Rule 23(a). I note, in addition, however, that were the Seventh Circuit to resolve its apparent internal historical difference of opinion on the “need” criterion in favor of what is by now the majority view, that consideration would also weigh against class certification here. A determination in favor of T.V. and M.K., that school authorities could not constitutionally punish out-of-school expressive conduct on grounds of disrepute to the school, would have school-wide impact going forward, without the need for a class-action dimension to this litigation. [emphasis by ILB]

Posted by Marcia Oddi on March 11, 2010 07:14 PM
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court suspends LaPorte County judge

In this Feb. 19, 2010 entry, the ILB quoted the Herald-Argus report that:

Suspended La Porte Superior Court 3 Judge Jennifer Evans-Koethe is set to face three judicial misconduct charges against her at two hearings in April.
The Indiana Supreme Court has appointed three masters (judges) to hear the case April 12 and April 19 in the Indiana Supreme Court courtroom in Indianapolis.

But late this afternoon the Court issued this release:

The Indiana Supreme Court has disciplined LaPorte Superior Court 3 Judge Jennifer L. Koethe for actions related to a December 2008 shooting at her home where she received a superficial wound to the scalp. The full discipline against Judge Koethe can be found in the Court’s opinion in case 45S00-0905-JD-216 [In the Matter of the Hon. Jennifer L. Koethe]. Briefly, Judge Koethe is suspended from the bench, without pay, for sixty days.
In May 2009, a grand jury indicted Judge Koethe for Attempted Obstruction of Justice. In January 2010, a jury acquitted Judge Koethe of the criminal charge. During that time, Judge Koethe was investigated by the Indiana Judicial Qualifications Commission for alleged misconduct related to the shooting.
When the felony indictment was filed in May 2009, the Indiana Supreme Court suspended Judge Koethe with pay. In December 2009, the Indiana Commission on Judicial Qualifications filed disciplinary charges against Judge Koethe. The disciplinary charges are separate from the criminal charge, which was filed in an Indiana trial court. The Commission alleged three counts of judicial misconduct and the matter was set for hearing.
Before the matter went to hearing, the Commission and Judge Koethe submitted a “Statement of Circumstances and Conditional Agreement for Discipline” to the Supreme Court. The Court considered and accepted that agreement. The Court agrees with the proposed discipline and has suspended Judge Koethe for sixty days without pay. For one year, she must also disqualify herself from cases where certain witnesses appear, and she has agreed to certain treatment requirements.
The Indiana Supreme Court has final authority over judicial discipline. The Supreme Court order detailing the discipline against Judge Koethe concludes the disciplinary proceeding.

Posted by Marcia Oddi on March 11, 2010 05:21 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Tranfers / reviews granted this week

The ILB has just received this information about transfers/reviews granted by the Supreme Court this week - look for them on next week's transfer list:

The following Petition For Transfer has been granted as of March 10, 2010:
Regunal Dowell v. State of Indiana (transfer was granted with opinion - see yesterday's ILB entry)
Court of Appeals Cause No.: 32A01-0810-PC-508
Supreme Court Cause No.: 32S01-1003-PC-136
The following Petition For Review has been granted as of March 11, 2010:

Oaken Bucket Partners v. Hamilton County Property Tax Assessment Board, et al (see this July 30, 2009 ILB entry on this Tax Court decision, headed "Tax Court ruling affects Indiana nonprofits that rent space")
Court of Appeals Cause No.: 49T10-0612-TA-113
Supreme Court Cause No.: 49S10-1003-TA-140

Posted by Marcia Oddi on March 11, 2010 03:31 PM
Posted to Indiana Transfer Lists

Courts - More on "Three lawsuits may change how NCAA operates"

Updating this Feb. 13, 2010 ILB entry, Katie Thoas of the NY Times reports today:

Eleven former college football and basketball players have joined the former U.C.L.A. basketball star Ed O’Bannon in a class-action lawsuit that argues the N.C.A.A. should compensate former athletes for the use of their images and likenesses.

The athletes include Alex Gilbert, a teammate of Larry Bird at Indiana State, four participants in the 1966 Division I men’s basketball championship game, and football and basketball players who competed in the 1990s and in the past decade, according to documents filed Wednesday in federal court in Oakland, Calif.

Although the new plaintiffs do not change the substance of the lawsuit, which was filed last year, a lawyer for O’Bannon said their participation bolsters the case. “I think this is going to be a vivid illustration of the support among former student-athletes for no longer tolerating abuse by the N.C.A.A.,” said Michael Hausfeld, a lawyer for the plaintiffs.

The lawsuit argues that the N.C.A.A., athletic conferences and member institutions violate federal antitrust laws by usurping the rights of former players to earn royalties when their likenesses and images are licensed by the N.C.A.A. for use in television advertisements, video games, apparel and other products. Amateurism rules prevent current college players from earning money from their names or likenesses, but lawyers for O’Bannon and the other plaintiffs have argued that those rules should not apply to former athletes.

Plus here are two stories from yesterday:

"Landmark Case Against NCAA Turning Into College Basketball History Course," from The AmLaw Daily.

"Lawsuit against NCAA could lead to end of amateurism" by Frank Deford at Sports Illustrated.

Posted by Marcia Oddi on March 11, 2010 02:52 PM
Posted to Courts in general

Ind. Courts - Most court systems in other states cut to bone

As the Indiana General Assembly contemplates the possible override of the Governor's 2009 veto of HEA 1491, thereby expanding the Court of Appeals by 20%, the National Law Journal reports today on how "Nationwide, State Court Systems Continue to Feel the Pinch." Sheri Qualters writes, in a lengthy story:

As state court systems nationwide struggle with budget shortfalls, a Boston Bar Association task force is trying to head off a proposed $10 million Massachusetts court system cut in the upcoming fiscal year.

The budget decrease for the fiscal year starting July 1 would add to the steep $24.4 million reduction rolled out in the current fiscal year. The court also tightened its belt with $22 million in voluntary reductions during fiscal year 2009.

The state's judicial budget "has been cut so far to the bone" already, said Joan Lukey, the chairwoman of a Boston Bar Association task force on the FY 2011 Judiciary Budget. "The question is, at what point do you reach the precipice and fall over?" said Lukey, a Boston litigation partner at Ropes & Gray. "It's difficult for a court to perform its function [in some areas]." * * *

But Massachusetts is far from the only state feeling pinched.

Court systems in Arizona, California, Florida, Georgia, Illinois, Michigan, Nevada, New York, Ohio, Texas and Virginia are facing slashed budgets, higher fees and fewer resources or demands to curtail spending. Court systems in the District of Columbia and Maryland, in contrast, are faring comparatively well.

New York Gov. David A. Paterson recommended $130 million in cuts for the state's judiciary in the 2010-11 year, which begins on April 1, according to The New York Law Journal, an NLJ affiliate publication. * * *

In California, the state's budget crisis forced the courts to close once a month beginning last September.

Other austerity measures include judicial pay cuts, a hiring freeze and the closure of the California Supreme Court's clerk's office in Los Angeles. The Los Angeles County, Calif., Superior Court also expects to lay off more than 300 people this month.

Despite the fiscal pain, California Chief Justice Ronald M. George said in his Feb. 24 State of the Judiciary Address that the court would still continue to support funding for a systemwide computerization project for the upcoming fiscal year, which begins July 1. He also said he would not re-channel construction funding to operational expenses.

The 200-member Alliance of California Judges, formed in the wake of the court closure policy, has criticized those decisions. "Right now, they've been dumping literally hundreds of millions of dollars into a statewide computer system," said alliance director and Los Angeles Superior Court Judge Charles Horan. "While it's nice, it is an extravagance that can't be afforded right now while we're closing." * * *

In Arizona, the state court budget has been slashed by $38 million since July 1, 2007, said Jennifer Liewer, communications officer for the Arizona Supreme Court. She said the court has limited travel, imposed a hiring freeze and asked for voluntary pay reductions.

In Texas, Gov. Rick Perry, Lt. Gov. David Dewhurst and House Speaker Joe Straus asked each state agency and appellate court in January to submit a plan for saving 5 percent on their 2010-2011 appropriations, according to The Texas Lawyer, an NLJ affiliate.

Posted by Marcia Oddi on March 11, 2010 02:25 PM
Posted to Indiana Courts

Ind. Courts - Clerk's Office Accepting Applications for Appellate Case Manager

See the notice here. More:

The Clerk's Office of the Division of Supreme Court Administration is accepting applications for the position of Appellate Case Manager. Candidates must possess exceptional customer service skills, must have a thorough understanding of the Indiana Rules of Appellate Procedure and how they apply to the various filings received by the Clerk's Office and must be willing to to deal professionally and tactfully with practitioners, staff attorneys, co-workers, and the general public, even in the face of reciprocal unprofessional or abusive behavior.

Posted by Marcia Oddi on March 11, 2010 01:27 PM
Posted to Indiana Courts

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

For publication opinions today (5):

In Heather L. Smitson v. Klinten M. Craig, a 4-page opinion, Judge Bailey writes:

H.S. (“Mother”) gave birth to K.C. out-of-wedlock in the State of Indiana and was thus the custodial parent pursuant to Indiana Code Section 31-14-13-1. Absent any adjudication of custody, K.M.C. (“Father”) removed K.C. from Indiana to Alabama and later to Mississippi. When Mother located Father several years later and filed a Petition for Writ of Habeas Corpus in Perry Circuit Court, Father moved to dismiss, claiming that Mississippi had become K.C.’s home state and the proper state to adjudicate custody under the Uniform Child Custody Jurisdiction Act (“the UCCJA”). The trial court determined that it lacked jurisdiction to adjudicate K.C.’s custody, in deference to Mississippi, and refused to issue a writ. Mother now appeals. We reverse and remand.

In Jean V. Poulard v. LaPorte Co. Election Board, et al. , a 7-page opinion, Judge Crone writes:

Jean V. Poulard, pro se, appeals the trial court’s denial of his motion for relief from final judgment. While Poulard presents several issues for our review, the dispositive issue in this case involves the residency of Poulard’s opponent in an election that Poulard in fact won. Despite winning the election, Poulard has continued to challenge his former opponent’s residency and to litigate this matter against the LaPorte County Election Board and Clerk of the Court Robert J. Behler (collectively, the “Election Board”). We conclude that the dispositive issue is now and has long been moot and, thus, we dismiss Poulard’s appeal. However, because we find this appeal frivolous, we remand to the trial court pursuant to Indiana Appellate Rule 66(E) to award appellate damages, which may include attorney’s fees, in favor of the Election Board. * * *

While we are cognizant of the chilling effect that an award of appellate damages can have on litigants, this case is an example of when a chilling effect is necessary to put an end to the matter. Poulard has maintained this cause of action in a manner calculated to require the needless expenditure of time and resources by the Election Board, the trial court, and this Court. In short, Poulard’s appeal was brought in bad faith and for purposes of harassment. For these reasons, we remand to the trial court for a determination of appellate damages to which the Election Board may be entitled pursuant to Appellate Rule 66(E). Dismissed and remanded.

Kevin Taylor v. State of Indiana is a 21-page, 2-1 opinion, with the majority ruling: "Kevin Taylor appeals the post-conviction court’s denial of his petition for post-conviction relief. Taylor raises two issues for our review, one of which is dispositive: whether the post-conviction court erred when it found that Taylor had not received ineffective assistance of trial counsel. We reverse and remand for a new trial."

Elmer D. Baker v. State of Indiana - "Elmer D. Baker appeals his two class A felony child molesting convictions and one class C felony child molesting conviction. We affirm."

In Dannie Ray Runyon v. State of Indiana, a 14-page opinion, Judge Vaidik writes:

Ray Runyon was sentenced to a suspended sentence of eight years and placed on probation with several conditions. Runyon later violated his probation by failing to pay child support. Runyon now appeals the revocation of his probation and imposition of six years of his previously-suspended eight-year sentence. We hold that when revoking a defendant’s probation for failing to support his or her dependents, the defendant bears the burden of proving that he or she was unable to provide support pursuant to Indiana Code section 35-38-2-3(f). Based on the record in this case, we conclude that Runyon has failed to prove that he had the inability to provide support and therefore the trial court did not abuse its discretion in revoking his probation. We also conclude that, given the multiple chances Runyon has been given to pay support, the trial court did not abuse its discretion in sentencing him to six years. We therefore affirm.

NFP civil opinions today (1):

Adoption of M.V.; S.S. v. G.R. and D.R. (NFP) - "S.S., the biological mother of M.M.V., appeals the probate court’s ruling that her consent to the adoption of M.M.V. by G.R. and D.R. (“the Guardians”) is not required. We affirm.

"Issue. S.S. presents a sole issue for review: whether there is sufficient evidence to support the probate court’s decision to dispense with her consent to M.M.V.’s adoption, pursuant to Indiana Code Section 31-19-9-8(2)(A)-(B), which obviates the necessity of consent by a parent who, when able to do so, for at least one year, has failed to significantly communicate with or provide for the care and support of her child who is in the custody of another person."

NFP criminal opinions today (4):

Darren V. Rogers v. State of Indiana (NFP)

Nathan D. Hawkins v. State of Indiana (NFP)

Jason E. Pressley v. State of Indiana (NFP)

Robert McFarland v. State of Indiana (NFP)

Posted by Marcia Oddi on March 11, 2010 11:56 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Lawyers seek limits on details in Simon case"

Jeff Swiatek of the Indianapolis Star, who has been covering (see, e.g, this Feb. 3rd ILB entry) the Simon estate dispute, reports today:

Melvin Simon's medical file and wife Bren Simon's household budgets likely will be stamped "confidential" and never see the light of day in Hamilton Superior Court.

Attorneys in the Melvin Simon estate dispute have asked Judge William J. Hughes to set strict ground rules for keeping sensitive records in the case confidential.
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A host of personal matters are likely to enter court records in the case, in which a daughter of the late billionaire Melvin Simon is challenging the legitimacy of his final will in a family fight over one of Indiana's greatest business fortunes.

"These matters should not become a tool for leveraging, for embarrassing . . . for financial harm," said David Beehler, an attorney for Bren Simon, as he suggested several ways of fashioning a confidentiality policy.

Hughes told the nine attorneys for both sides that they were taking confidentiality to new levels. "The parties have gone further with their protective order than the court is used to seeing," he said.

He hopes to rule on the issue next week.

Posted by Marcia Oddi on March 11, 2010 11:00 AM
Posted to Indiana Courts

Law - Magnus-Stinson joins three other Hossiers awaiting Senate approval

Jane E. Magnus-Stinson, whose nomination to be United States District Judge for the Southern District of Indiana was held over at the Senate Judiciary Committee meeting March 4th, was approved this morning by the Committee.

Her name now joins that of Jon E. DeGuilio, nominated to be United States District Judge for the Northern District of Indiana, and Tanya Walton Pratt, nominated to be United States District Judge for the Southern District of Indiana, as eligible for approval by the full Senate. Dawn Johnsen's name was sent to the floor last week for the position of Assistant Attorney General, Department of Justice. The Committee also approved her nomination for the slot last year.

Posted by Marcia Oddi on March 11, 2010 10:48 AM
Posted to General Law Related

Ind. Decisions - "Pinnacle doctors settle lawsuit against attorney"

Teresa Auch Schultz of the Gary Post-Tribune reports today:

A lawsuit filed by a group of Pinnacle Hospital doctors and owners against their former attorney ended with them paying the law firm.

The agreement, filed in the U.S. District Court in Hammond, says that E. Don Burman, Lonnie Ailes, Eric Leestma, Scott Keith and Arsenio Favor will pay $50,000 to Novack and Macey, a law firm in Chicago.

Burman, then Pinnacle CEO, and the group had hired the lawyers because they were trying to get rid of Kirnjot Singh in 2008, after the Indiana Medical Licensing Board found Singh guilty of sexual conduct with a patient.

The doctors said in their lawsuit that Novack and Macey had told them the law firm was an expert in "business divorces" and could help them get rid of Singh. However, according to the lawsuit, attorney Karen Levine and others with Novack and Macey advised the doctors against writing a letter specifying their accusations, suggesting instead a more general letter.

Singh eventually filed his own lawsuit protesting the firing and won. When he returned to Pinnacle, he fired Burman.

Posted by Marcia Oddi on March 11, 2010 10:43 AM
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Anderson attorney faces child porn charges" [Updated]

Vic Ryckaert reported last evening in the Indianapolis Star:

An Anderson attorney remained in federal custody Wednesday after authorities say he distributed child pornography.

Samuel C. Hasler, 50, was arrested Tuesday at his law office, 1109 Meridian Plaza, Anderson, on two counts of distributing and one count of possessing child pornography, according to a statement from U.S. Attorney Timothy Morrison's office.

Hasler appeared late Tuesday afternoon for an initial hearing before U.S. Magistrate Judge Kennard P. Foster and remained in a holding facility in Indianapolis, the statement said.

Distributing child pornography carries a maximum sentence of 20 years in prison; the possession charge carries a maximum 10-year prison sentence.

Authorities say Hasler distributed explicit images of children through the Internet to someone in another state on Dec. 3 and sent more images to an undercover police officer on Feb. 14. Authorities say they found child pornography on his computer when they searched his office on Tuesday.

Hasler was granted a law license in 1987 and has never been disciplined, according to the Indiana Supreme Court.

An Anderson attorney, Sam Hasler, runs Sam Hasler's Indiana Divorce & Family Law Blog. Access it here.

[Updated at 4:51 PM] Here is a more detailed story headed "Attorney facing child porn charges," by Christina M. Wright of the Anderson Herald Bulletin.

Interestingly, although Mr. Hasler is reportedly "being held at a Community Corrections Center in Indianapolis until trial," his Family Law Blog continues to be updated.

Posted by Marcia Oddi on March 11, 2010 10:34 AM
Posted to Indiana Courts

Ind. Courts - Still more on "7th Circuit Judges May Testify in Retrial Over Web Threats"

Updating this ILB entry from March 3rd, Mark Fass of the New York Law Journal reports today:

The second trial of blogger Harold "Hal" Turner, the New Jersey white supremacist charged with threatening to kill three Chicago federal judges, has resulted in a second mistrial.

At the end of their second full day of deliberations Wednesday, the jurors sent a note to the judge stating that another day of deliberations would be useless, the third time they reported they believed a unanimous verdict was impossible.

This time, Judge Donald Walter of the U.S. District Court for the Western District of Louisiana, sitting by designation, let them go.

He tentatively scheduled the third trial to begin on April 12.

The mistrial constitutes a serious defeat for the U.S. Attorney's Office for the Northern District of Illinois, which prosecuted the case in Brooklyn federal court.

Following the first mistrial in January, in which the threatened judges -- Judges Richard Posner, William Bauer and Frank Easterbrook of the 7th U.S. Circuit Court of Appeals -- did not appear as witnesses, a juror told reporters the jury deadlocked due to a dearth of testimony.

"The prosecution's case was so weak," the juror said. "He just bailed out."

This time, all three judges flew to New York and took the witness stand, though somewhat begrudgingly. Posner complained from the stand that he would rather be working.

Now, Chicago's U.S. Attorney, Patrick J. Fitzgerald, will have to decide whether to try Turner for a third time, and if so whether to ask the judges to appear again.

Asked as he left the courtroom whether the government would again try the case, the lead prosecutor, Assistant U.S. Attorney William Hogan said, "We're going to review it. I'd say it's highly likely."

Posted by Marcia Oddi on March 11, 2010 10:29 AM
Posted to Indiana Courts

Ind. Courts - Still more on "Timing was terrible on guns at work bill"

Updaitng this ILB entry from March 8th, Bob Kasarda reported in the March 10th NWI Times:

VALPARAISO | Bond was set Tuesday at $200,000 cash and $200,000 surety for the Portage man accused of attempting to kill a supervisor Friday when he opened fire at an Indiana Department of Workforce Development office.

In setting the large bond amount, Porter Circuit Court Judge Mary Harper said of Edgar Tillery, "The defendant poses a significant danger to the community."

Harper ordered that if 60-year-old Tillery is released on bond, he is to avoid contact with any employee of the Department of Workforce Development, which is the agency that administers the state's employment and training programs and unemployment insurance system. He was further ordered to stay a minimum of a quarter-mile away from any Workforce Development office. * * *

Police believe Tillery was attempting to kill office manager Jennifer Chappell when he opened fire with a 12-gauge shotgun Friday after receiving an unfavorable job review at the office, 6224 Central Ave. in Portage.

No one was injured. Tillery reportedly told police the shotgun shells malfunctioned, stopping his rampage.

Police said they found wadding from a shotgun shell in the frame of the front door and the glass was shattered. They also found two unspent shells near the front door and another near the rear door where his co-workers had fled.

Police said they found two boxes of loaded 12-gauge shotgun shells inside Tillery's car parked outside the office.

Posted by Marcia Oddi on March 11, 2010 09:55 AM
Posted to Indiana Courts

Ind. Courts - More on: HEA 1491, vetoed last year, is on today's House calendar

As the ILB reported yesterday morning, HEA 1491 from the 2009 regular session, which would abolish merit selection of St. Joseph Superior Court Judges and also would create a 6th Court of Appeals panel, is on the House calendar for a vote.

A simple majority vote in each house before adjournment is all that is needed to override the veto. Otherwise, the veto will stand.

Here is some background on HEA 1491-2009: The original House bill proposed to make all St. Joesph County judges elective. Some are now appointed via a merit system. Lake is the only other county where all judges are not elected. Many have thought of these two counties as the models for future efforts to make all county judges merit.

The Senate added the provision to create a 6th Court of Appeals panel. The House agreed to the Senate change. There has been no demonstrated need for a new multi-million dollar appellate panel.

Here is Governor Daniels veto message from 2009:

The current method of selecting judges for the St. Joseph Superior Court has prevailed successfully for 35 years. It is a model to be emulated, not discarded. It is not broken; it requires no repair. It has produced outstanding jurists and contains sufficient measures of public accountability. I believe it neither necessary nor wise to re-politicize the courts of St. Joseph County.

The addition of another panel to the Court of Appeals at $2 million per year is difficult to justify in today’s challenging fiscal environment. Moreover, if I were to sign a bill linking these two proposals, it could contribute to public cynicism by creating the appearance that my acquiescence was purchased with more appointments. Whatever the merits of expanding the Court of Appeals may be, they should be considered alone.

Fiscal impact: If the House and Senate vote to override last year's veto a new, 6th panel of three Court of Appeals judges will begin operating on July 1, 2011. The LSA projections are that the impact of the new panel over a two-year period will be nearly $4.5 million. That is at a time when government is severely cutting back services and fighting for every dollar of savings.

Is there a need for a new Court? No, a 6th panel for the Court of Appeals is unnecessary at this time. There was no request from the Court for a 6th panel, no claim that it was overburdened. To the contrary, the current Court of Appeals, consisting of five 3-judges panels, is well run, smoothly operating, and has no trouble handling the current caseload. In short, the workload does not justify creation of a new $4.5 million panel.

What can you do? There isn't much time. If you feel strongly one way or the other, you can contact your legislator, preferably this morning. The House must vote first on the override, if it fails there, the bill is dead. If it passes, the vetoed bill must also pass an overide vote in the Senate. An override requires only a majority vote in each house.

Posted by Marcia Oddi on March 11, 2010 06:20 AM
Posted to Indiana Courts | Indiana Government

Wednesday, March 10, 2010

Ind. Law - More on: AT&T and AG team up to fight texting while driving

Updating yesterday's ILB entry, Niki Kelly of the Fort Wayne Journal Gazette has this story today - some quotes:

INDIANAPOLIS – The ads in a new AT&T public-awareness campaign against texting and driving unveiled Tuesday by state and local officials are stark and simple.

One of the campaign’s advertisements shows “Yeah t” on the TV screen as a woman narrates: “This is the unfinished text message that my son was typing when he drove off the road and died of a massive skull fracture.”

Indiana Attorney General Greg Zoeller hosted AT&T Indiana President George S. Fleetwood and Sen. Tom Wyss, R-Fort Wayne, to urge drivers – especially young drivers – to resist the temptation to send or check text messages while driving. * * *

In 2009, the Indiana General Assembly updated the state’s graduated driver’s license law to prohibit Hoosier drivers younger than 18 from talking on cell phones or texting while driving.

It was authored by Sen. Travis Holdman, R-Markle.

“As texting-type tasks continue to grow in popularity, we have to use what resources are available to help reduce the amount of crashes and fatalities on our roads,” Holdman said.

A bill to expand the texting ban to all drivers was blocked in the Senate this year by a Republican committee chairman.

More here.

Posted by Marcia Oddi on March 10, 2010 04:25 PM
Posted to Indiana Law

Ind. Decisions - Supreme Court decides two today

In Kevin S. Varner v. State of Indiana, a 6-page, 5-0 opinion, Justice Sullivan writes:

When the five-member Parole Board denied an inmate parole by a vote in which only four members participated, the inmate sought to compel a vote by all five members. The statute governing final decisions by the Parole Board requires the “full parole board” to make the de-termination. We find that a majority of the Board constitutes the “full parole board” for this purpose. As such, the inmate received a decision from the board that accorded with the statute’s requirements. * * *

We hold that Indiana Code section 11-13-3-3(b) does not require the Board to determine parole eligibility by a five-member vote. The “full parole board” delineates a majority of the Board, which may consist of less than five members. * * *

The opinion of the Court of Appeals is vacated except for that portion addressing subject matter jurisdiction. App. R. 58(A)(2). Varner’s request for a writ of mandamus is denied; he received a determination by the full parole board.

In Regunal Dowell v. State of Indiana, an 8-page, 5-0 opinion, Chief Justice Shepard writes:

A good many jurisdictions employ the “prison mailbox rule” to determine whether court filings made by prisoners are timely. Indiana has regularly used this approach as respects filings governed by its appellate rules, recognizing the unique position of pro se prisoners, though we apparently have never expressly adopted the prison mailbox rule. We do so today, still obliging the litigant provide reasonable, legitimate, and verifiable documentation. Appellant Regunal Dowell's timing problem, however, does not center on a tardy filing under the appellate rules but rather on his attempt to file a motion to correct error under the trial rules.

Posted by Marcia Oddi on March 10, 2010 03:48 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Law = "Throughout his 50-year law career, Cook was known as one of the best trial lawyers in Eastern Indiana"

From the March 10, 2010 Winchester News-Gazette, a story by Bill Richmond headed "Community mourns death of attorney John T. Cook."

The community mourns the loss of respected Winchester trial attorney and altruist John T. Cook who died Monday at his home.

Born and raised in Winchester, Cook was a 1945 graduate of Winchester High School and a 1954 graduate of Indiana University School of Law. He served with the US Navy during W.W. II, spending his 18th birthday on Okinawa. He would attend Ball State College through the GI Bill before receiving his law degree from IU.

Throughout his 50-year law career, Cook was known as one of the best trial lawyers in Eastern Indiana. His ability to effectively present a case and elude opposing argument was matched by his kindness and consideration for others. His motto, on display in his office, is: Everyday we do something for free and the recipient of that is asked to pass it on.

"John was dedicated to the practice of law," said Superior Court Judge Peter Haviza who served Cook for 18 years as an associate. "For many years he'd schedule a 3-week vacation and return after two weeks because he wanted to be back doing legal work. He enjoyed his work and took great pride in being a great lawyer."

Haviza recalls Cook as probably one of the smartest jury trial lawyers he's ever seen.

"He was great on cross examination," Haviza said. "Watching him cross examine a person was like watching someone playing chess. He would think three to four questions ahead and gradually build the witness into a box so when it came to the final key question, they had no choice but to answer the way John wanted."

Cook was also known for his charitable causes. He donated generously of his time, effort and money to principles he strongly believed in. He liked to see the C average student would get a scholarship or a break to otherwise help them advance in life. He served as a board member for the James Moorman Orphans Home Scholarship Fund.

Cook, throughout has career has provided legal representation for almost all of the banks in Randolph County and has represented three of the five county school corporations.

Perhaps his greatest trial success was the (circa 1978-80) Caldwell vs. Dayton-Walther case in which a Randolph County jury awarded Cook's clients $800,000. The verdict was appealed to and upheld by the Indiana Supreme Court. By the time the judgment was paid to the County Clerk, it was more than $1 million, including interest.

County Prosecutor David Daly who grew up as Cook's neighbor and was friends with his son, Johnny Ray during their youth recalls the senior Cook's reputation from a vastly different perspective with yet much the same result as those who worked directly with him.

"He was just a great guy," Daly said. "To me growing up, he was like Perry Mason."

Winchester Mayor Steve Croyle said Cook was a blessing to the community who gave back in many ways.

"He was a great friend to my father and he will be greatly missed," Croyle said.

Here is the obituary.

Posted by Marcia Oddi on March 10, 2010 01:21 PM
Posted to Indiana Law

Ind. Courts - HEA 1491, vetoed last year, is on today's House calendar

HEA 1491 is on today's House calendar. For background, see this long list of ILB entries. The bill would abolish merit selection of St. Joseph Superior Court Judges and also would create a 6th Court of Appeals panel.

Posted by Marcia Oddi on March 10, 2010 11:53 AM
Posted to Indiana Courts

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