Thursday, July 02, 2009
Courts - "Supreme Court Closes Deeply Divided Term"
Listen to Nina Totenberg's nearly 8 minute wrapup of the SCOTUS term here, on NPR.
Posted by Marcia Oddi on July 2, 2009 06:49 PM
Posted to Courts in general
Ind. Courts - "Marion County Public Defender On Leave After Arrest: Lawyer Accused Of Breaking Into Home, Battery"
Jack Rinehart of INDY 6 News has this story this evening.
Posted by Marcia Oddi on July 2, 2009 06:43 PM
Posted to Indiana Courts
Ind. Decisions - Transfer list for week ending July 2, 2009
No need this week to wait till Monday/
Here is the Clerk's transfer list for the week ending July 2, 2009. It is three pages long.
Five case were granted transfer, see entry immediately below -- more later.
Posted by Marcia Oddi on July 2, 2009 05:12 PM
Posted to Indiana Transfer Lists
Ind. Decisions - Five cases granted transfer July 2nd
The Clerk's transfer list should be available sometime Monday. Meanwhile, the ILB has received notice that transfer was granted July 2nd in five cases. (I'll be adding details later)
- Shewanda Beattie v. State -- 83A01-0805-CR-247
- Gary D. Jackson v. State -- 39A01-0711-CR-528
- Gloria Murray v. City of Lawrenceburg -- 15A04-0803-CV-122
- Lisa Beckingham v. Review Bd. -- 93A02-0808-EX-771
- John Giovanoni v. Clarian health Partners, Inc. -- 93A02-0806-EX-545
Posted by Marcia Oddi on July 2, 2009 04:00 PM
Posted to Indiana Transfer Lists
Ind. Law - Golf carts in the news
Laura Lane of the Bloomington Herald-Times had this story ($$) June 25th, headed "Golf carts get the go-ahead: Starting July 1, change in state law clears the way for small towns to allow carts on roads." Some quotes:
WORTHINGTON — In just six days, Worthington Town Council president Hal Harp will be street legal in his 1995 golf cart.From the Washington Times-Herald, a story today by Nate Smith:He has everything in line to comply with a new state law that allows towns and cities to adopt regulations making golf carts legal on local roads.
“The insurance policy I received today is effective first of July,” he said this week. “I have lights on the front and back, a rearview mirror and also a ‘slow-moving vehicle’ sign bolted on the back.”
He also has a valid driver’s license, another requirement for anyone who wants to take to the streets behind the wheel of a golf cart.
And his town has passed the necessary ordinance allowing the legal operation of golf carts starting July 1, when the state law goes into effect.
For years, small-town residents — including those in Worthington, population 1,452 — have tooled around to nearby businesses and neighbors’ homes in battery-operated carts that once were used only as a way to travel from hole to hole on golf courses. More recently, they have been seen as economical, fuel-saving and very slow modes of transportation. * * *
Harp said golf carts are fine for Worthington, but not a good fit for the streets of other towns, such as Bloomington. For him, he can drive from his house on Edwards Street down to the hardware store, the grocery, the baseball park or even to town hall for council meetings.
“It’s good news for a lot of people here in town who have golf carts,” Harp said. “I was thrilled the state Legislature passed the law, and hopefully we won’t have any major problems. There is a place for them. But they aren’t right for all towns.”
Like Harp, [Town Clerk-Treasurer Gloria Klass] has her golf cart ready to hit the road. All she has left to do is buy liability insurance, required by law. With a safe driver discount, she hopes to purchase a policy for $50 a year.
She usually drives her car two blocks to work, since she has to run errands for the town from her office. But starting Wednesday, she can take the golf cart to work and drive it to the post office, bank and other destinations close by.
She will encounter Harp and others in similar vehicles.
“I’ve already had inquiries from people on how to take care of them and where to get the lights and other things you need to have,” said Harp, who drove his golf cart around town for years until 2008, when the Indiana State Police issued a statement saying golf carts were not legal on the road and that people caught driving them would be ticketed.
Harp said then it was essential that golf cart drivers be careful, stay off heavily traveled roads and follow safety rules. “I think the state Legislature should legalize the use of them and allow the town councils to decide if it is right for their town or not,” Harp said last fall.
He and others lobbied their state representatives to change the law, and they did, making Harp’s wish a reality come Wednesday.
Other towns may soon follow suit; the golf cart issue is on the town council’s July 7 meeting agenda in nearby Bloomfield.
The streets in Daviess County have been littered with outlaw vehicles, slowly holding up traffic in areas that some would call dangerous.From yesterday's Lebanon Reporter, this story:But soon, golf carts will be legal in several cities and towns in the state. Starting July 1, carts with the proper modifications will be legal if the cities and towns a driver lives in passes an ordinance doing so.
Depending on where one lives in Daviess County, the debate on the ordinance may come as soon as the law takes effect. Town council members in Odon, Montgomery and Plainville said this week the ordinance will be discussed at their July meetings.
“We’ll probably present it for a vote in our July meeting,” Odon Town Council President Keith Bechtel said.
Bechtel went on to say the council had discussed the ordinance at a meeting in June and asked its attorney to draw up the ordinance.
Another town board member, Tommy Noble, said the town will probably pass the ordinance.
“I’m completely for them and most of the council is for them,” Noble said. “We won’t be charging a (cart) fee, unlike Loogootee.”
Loogootee already passed an ordinance earlier this month, according to Mayor Don Bowling. The fee, $25, will not go into effect until July 1.
In Plainville, Town Board President Dick Heshelman said the issue will be brought up at the board’s next meeting in July. The usual date, the second Thursday of the month, is being changed for July, Heshelman said.
Washington Mayor Larry Haag said Thursday the city is looking at the law and asked City Attorney Jeff Norris to research it, but could not say if the council would see or vote on an ordinance in July.
“There’s been some discussion and we are continuing to do some research,” Haag said.
A message was left with Elnora Town Board member Jerry Beck.
The largest issue on the carts may be in Montgomery, where many carts can be seen on the town roads. Board President Mike Healy said the town board will discuss the matter but he said “on a personal basis, I don’t want (an ordinance.)”
“I can’t speak for the rest of the board,” Healy said. “But I don’t think they are safe to be on city streets.”
Earlier this summer, accidents have been reported in the town from golf carts. On May 30, a child was taken to Daviess Community Hospital after a cart flipped over onto her. On May 20, a 12-year-old girl sustained injuries to her legs after a cart accident in Montgomery.
Lebanon Mayor Huck Lewis helped put up new golf cart restriction signs Tuesday with street department staff. Twelve new signs went up Tuesday on Ind. 39, Ind. 32, Indianapolis Avenue and Lafayette Avenue. A new ordinance created in the state legislature’s last session allows cities and towns to decide whether golf carts are allowed on state highways or not, Lewis said. Lebanon has had an ordinance for a while, but the new bill requires road signs be put up on state highways. Indianapolis Avenue and Lafayette Avenue were exceptions because, though they are not state highways, golf carts are prohibited. Also, starting today, all golf carts must have a permit. “We’re expecting a lot of people at the office,” Lewis said.
Posted by Marcia Oddi on July 2, 2009 03:14 PM
Posted to Indiana Law
Law - "It’s Now Legal to Catch a Raindrop in Colorado"
Kirk Johnson of the NY Times had a story June 28th on "Western" water law. It began:
DURANGO, Colo. — For the first time since territorial days, rain will be free for the catching here, as more and more thirsty states part ways with one of the most entrenched codes of the West.See also this companion piece headed "The Legalities of Rainwater Harvesting," by Leora Broydo Vestel.Precipitation, every last drop or flake, was assigned ownership from the moment it fell in many Western states, making scofflaws of people who scooped rainfall from their own gutters. In some instances, the rights to that water were assigned a century or more ago.
Now two new laws in Colorado will allow many people to collect rainwater legally. The laws are the latest crack in the rainwater edifice, as other states, driven by population growth, drought, or declining groundwater in their aquifers, have already opened the skies or begun actively encouraging people to collect.
“I was so willing to go to jail for catching water on my roof and watering my garden,” said Tom Bartels, a video producer here in southwestern Colorado, who has been illegally watering his vegetables and fruit trees from tanks attached to his gutters. “But now I’m not a criminal.”
Who owns the sky, anyway? In most of the country, that is a question for philosophy class or bad poetry. In the West, lawyers parse it with straight faces and serious intent. The result, especially stark here in the Four Corners area of Arizona, Colorado, New Mexico and Utah, is a crazy quilt of rules and regulations — and an entire subculture of people like Mr. Bartels who have been using the rain nature provided but laws forbade.
Posted by Marcia Oddi on July 2, 2009 02:37 PM
Posted to Environment | General Law Related
Courts - Even more on: NY high court rules police need warrants for GPS trackers
Updating this ILB entry from May 18th, Sherry F. Colb, Professor of Law and Charles Evans Hughes Scholar at Cornell Law School, had this Findlaw column June 24th, headed "The Highest Court of New York State Protects Privacy from GPS Monitoring."
Posted by Marcia Oddi on July 2, 2009 02:33 PM
Posted to Courts in general
Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)
For publication opinions today (1):
In David and Connie Long v. IVC Industrial Coatings Inc., et al. , a 17-page opinion, Judge Brown writes:
The Longs argue that the trial court erred by granting summary judgment to IVC/Contractors. Specifically, the Longs argue that the trial court erred by finding that the common enemy doctrine applies because: (A) the mechanism that cast mud upon the Longs’ property was surface water and not a natural watercourse; and (B) the water contained mud, silt, and sediment. * * * Under the common enemy doctrine of water diversion, it is not unlawful for a landowner to improve his land in such a way as to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land even where his land is so situated to the land of an adjoining landowner that the improvement will cause water either to stand in unusual quantities on the adjacent land or to pass into or over the adjacent land in greater quantities or in other directions than the waters were accustomed to flow. * * *NFP civil opinions today (1):If the water here is characterized as surface water, then the common enemy rule may apply to preclude the Longs’ claims for damages caused by rainwater runoff from the IVC parcel. On the other hand, if the water here is a natural watercourse, then the common enemy doctrine is not applicable. [cites omitted] * * *
Construing the facts and reasonable inferences drawn from the facts in the Longs’ favor, we cannot say that a jury could not determine that the discharge here, with its large content of mud, silt, and sedimentary material, ceased to be mere surface water. From the designated facts, a jury could conclude: that a large mound of surplus dirt was left on the IVC property; that for approximately one year erosion occurred which resulted in extensive amounts of mud, silt, and sedimentary material draining to a collection point, through ditches, culverts, and ravines and into the Longs’ two ponds; that IVC/Contractors took no or few steps to prevent the flow of mud, silt, or sedimentary material with water as evidenced by its repeated violations of “Rule 5;” and that a very large flow of mud or sedimentary material was deposited into the Longs’ ponds causing one of the ponds to fill approximately ten feet at its lowest elevation and the other pond to fill approximately seven feet at its lowest elevation. * * * Therefore, summary judgment on this issue is not appropriate.
For the foregoing reasons, we reverse the trial court’s grant of summary judgment to IVC/Contractors and remand for proceedings consistent with this opinion. Reversed and remanded.[5]
__________
[5] The Longs also argue that the trial court erred in granting summary judgment to IVC/Contractors on the basis that the Longs are non-riparian owners. However, because we reverse the trial court’s grant of summary judgment on other grounds, we need not address whether the Longs are non-riparian owners. Moreover, we note that resolution of this issue may be affected by the fact-finder’s determination of whether the water containing mud, silt, and sedimentary material at issue in this case constituted mere surface water.
Randy McGee v. Michael Osburn (NFP)
NFP criminal opinions today (7):
Brandon Cravens v. State of Indiana (NFP)
Virginia Cheesman v. State of Indiana (NFP)
Michael T. Freckman v. State of Indiana (NFP)
Lonnie White v. State of Indiana (NFP)
Chad Pemberton v. State of Indiana (NFP)
Jose Jenkins v. State of Indiana (NFP)
Michael L. Rutledge v. State of Indiana (NFP)
Posted by Marcia Oddi on July 2, 2009 01:59 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Two today from the 7th Circuit
In Glaser v. Wound Care consultants (SD Ind., Judge McKinney), a 31-page opinion, Judge Sykes writes:
Carol Glaser received medical treatment from Wound Care Consultants and was later contacted by an attorney who told her that Wound Care might have improperly billed Medicaid for her treatment. She filed this qui tam action under the False Claims Act (“FCA”), 31 U.S.C. § 3730, seeking recovery as a relator for money the government paid as a result of alleged false or fraudulent Medicare and Medicaid claims submitted by Wound Care. But the government was already aware of the possible improprieties in Wound Care’s billing practices and had commenced an investigation more than four months before Glaser filed her lawsuit. Accordingly, the district court dismissed Glaser’s complaint for lack of subject-matter jurisdiction under 31 U.S.C. § 3730(e)(4), which blocks jurisdiction if the FCA action is “based upon” a “public disclosure” of the alleged fraudulent conduct “unless . . . the person bringing the action is an original source of the information.” Glaser appealed.In U.S. V. McGraw (ND Ind. Judge Springmann), a 15-page opinion, Judge Sykes writes:The district court correctly concluded that the jurisdictional bar of § 3730(e)(4)(A) applies to Glaser’s qui tam suit. The allegations in Glaser’s complaint about Wound Care’s billing practices are based upon publicly disclosed information, and Glaser has not shown she is an original source of the information used to support the allegations. We therefore AFFIRM the judgment of the district court dismissing the case for lack of subjectmatter jurisdiction.
While executing a search warrant for drugs inside a Fort Wayne, Indiana apartment building, police officers noticed that the building had several housing-code violations. Police called a neighborhood code-enforcement officer, who arrived and determined that the apartment building must be condemned. That determination required officers to go door-to-door and notify the building’s residents that they needed to leave their apartments. When Frank McGraw, the second floor tenant, arrived on the scene, officers instructed him to secure his dog and collect the belongings he would need for a few days. They also explained their need to inspect his apartment for housing-code violations and to search for potential stragglers. McGraw consented to the search three times before leaving the apartment building with his dog. During that search, police observed narcotics in plain view, and McGraw was charged with possession of crack cocaine.McGraw moved to suppress the evidence, claiming that any consent he gave was not voluntary but instead constituted acquiescence to the officers’ display of authority. The district court denied the motion, finding that McGraw’s consent was voluntary. McGraw then entered into a conditional plea agreement, in which he waived his right to appeal sentencing determinations but preserved his right to appeal the court’s suppression ruling. At sentencing the district court classified McGraw as a career offender under the guidelines and sentenced him to 262 months’ imprisonment. On appeal McGraw challenges the court’s suppression ruling and its determination that he qualified as a career offender.
We affirm. The district court did not clearly err in finding that McGraw voluntarily consented to the officers’ search. The court analyzed the totality of the circumstances and determined that despite the way in which some of the officers phrased their request to search McGraw’s unit, McGraw voluntarily consented to their search. Because the court’s conclusion is entirely plausible in light of the record viewed in its entirety, the court properly denied McGraw’s motion to suppress. Further, we hold that McGraw waived his right to challenge the district court’s sentencing determination.
Posted by Marcia Oddi on July 2, 2009 12:15 PM
Posted to Ind. (7th Cir.) Decisions
Law - Passes NY bar, but denied character and fitness approval because of amount of outstanding student loan
Or, as the headline in the NY Times story by Jonathan D. Glater reads, "Finding Debt a Bigger Hurdle Than Bar Exam." The lengthy story begins:
All his life, Robert Bowman wanted to be a lawyer. He overcame a troubled childhood, a tragic accident that nearly cost him a leg and a debilitating Jet Ski collision.He put himself through community college, worked and borrowed heavily to help pay for college, graduate school and even law school. He took the New York bar examination not once, not twice, not three times, but four, passing it last year. Finally, he seemed to be on his way.
In January, the committee of New York lawyers that reviews applications for admission to the bar interviewed Mr. Bowman, studied his history and the debt he had amassed, and called his persistence remarkable. It recommended his approval.
But a group of five state appellate judges decided this spring that his student loans were too big and his efforts to repay them too meager for him to be a lawyer.
“Applicant has not made any substantial payments on the loans,” the judges wrote in a terse decision and an unusual rejection of the committee’s recommendation. “Applicant has not presently established the character and general fitness requisite for an attorney and counselor-at-law.”
Mr. Bowman, 47, appears to have crossed some unspoken line with his $400,000 in student debt and penalties, accumulated over many years.
New York’s courts have overlooked misconduct like lawyers’ solicitation of minors for sex, efforts to deceive judges and possession of cocaine. Those instances have led merely to temporary suspensions from practice.
“It usually takes a pretty significant record of some underlying misconduct to keep you out permanently,” said Deborah L. Rhode, a law professor at Stanford who has studied bar admissions across the states. Excluding someone for having too much debt was odd, she said; the hard questions about loans usually involve applicants who have used bankruptcy to try to escape loans, she said, and Mr. Bowman has not.
Posted by Marcia Oddi on July 2, 2009 12:07 PM
Posted to General Law Related
Courts - Suit against Kentucky newspaper to reveal anonymous poster's identity
Jason Riley has this story today in the Louisville Courier Journal, under the headline "EKU student sues over anonymous post." Some quotes:
The anonymous post appeared online Aug. 13, 2008, under a Richmond Register story, headlined, “You can buy it at the mall, but you can't wear it there.”"Anonymous posters" has been a subject for several earlier ILB entries -- see this Dec. 29, 2008 ILB entry. One involved Indiana newspapers -- can anyone provide updated information?The newspaper story, which made national news, was about a college student who'd been kicked out of a central Kentucky mall because she was told the dress she was wearing — bought there the day before — was too short.
But the online poster, identified only as l2bme, claimed to have the true story behind Kymberly Clem's eviction — that she had exposed herself to a woman and her children who remarked on the dress.
A furious Clem alleged defamation, with her attorney filing a lawsuit against l2bme and subpoenaing the newspaper to provide the anonymous poster's identity.
“This person basically fabricated something they wrote as factual,” said Clem's attorney, Wesley Browne.
In an era where newspaper Web sites and blogs allow anonymous commenters increasing freedom, lawsuits and subpoenas seeking their names are becoming much more common.
Earlier this month, the U.S. attorney's office in Las Vegas demanded the identities of everyone who wrote on The Review-Journal's site about a criminal tax trial in progress.
The newspaper had planned to try to quash the subpoena on First Amendment grounds, but the U.S. attorney's office narrowed its request to two comments that it said could be construed as threatening jurors or prosecutors. The newspaper agreed to give up the names, but the American Civil Liberties Union of Nevada is fighting to stop them, according to a Review-Journal article.
In Kentucky, the subpoena against The Richmond Register remains a rarity — one that is breaking new legal ground.
“This is the first of probably many times in the future when the laws that were created during an age when the Internet didn't exist are being applied to a new medium of information,” said Kenyon Meyer, an attorney for The Richmond Register.
While the Register took down the comment and banned l2bme from further posts, the paper is fighting the subpoena. As part of its defense, it cites the First Amendment rights of the paper and the poster to speak freely in a public forum — the same defense used by other papers with online sites and bloggers.
Posted by Marcia Oddi on July 2, 2009 09:58 AM
Posted to Courts in general
Courts - "Tweeting, Texting, Googling Banned for Mich. Jurors"
Tresa Baldas of The National Law Journal has this long story today. A quote:
The Michigan Supreme Court has laid the hammer down on gadget-happy jurors in banning all electronic communications by jurors during trial, including tweets on Twitter, text messages and Google searches.The ILB has had many earlier entries on jorors' tweeting, courts banning cellphones in the courthouse or courtroom, etc. See a list here.The ruling, which takes effect Sept. 1, will require Michigan judges for the first time to instruct jurors not to use any hand-held device, such as iPhones or BlackBerrys, while in the jury box or during deliberations.
The state's high court issued the new rule on Tuesday in response to prosecutors' complaints that jurors were getting distracted by their cell phones, smartphones and PDAs, in some cases texting during trial or digging up their own information about a case and potentially tainting the judicial process. * * *
According to the National Center for State Courts, a number of states have grappled with the problem of allowing jurors to bring cell phones to the courtroom. A recent questionnaire sent to court administrators across the country showed that many courts are addressing the problem of potential juror misconduct through hand-held devices.
For example, courts in Ramsey County, Minn., recently issued a new cell phone policy that prohibits jurors from brining any wireless communication device to court after two mistrials were declared when jurors used cell phones during deliberation against the court's order.
New Jersey, however, allows jurors to bring cell phones to court, but they must be turned off during trial. Cumberland County, Penn., has a similar phone policy. In Malheur County, Ore., jurors are not allowed to bring cell phones to court at all.
Posted by Marcia Oddi on July 2, 2009 09:51 AM
Posted to Courts in general
Environment - More on "Federal judge won't block BP refinery expansion"
Updating yesterday's ILB entry, Gitte Laasby of the Gary Post-Tribune has this story today. Here is a quote:
U.S. District Court Judge Philip Simon, sitting in Hammond, dismissed the case Friday, stating the NRDC's federal case is "nearly identical" to three appeals filed in state court by other environmental groups, some of whom are represented by NRDC attorneys. He said the approach "smells fishy" and called it a "divide and conquerThe P-T also provides a link to Judge Simon's June 26, 2009, 32-page opinion"A cynic might conclude that the NRDC and its colleagues at the Sierra Club were trying to fight the war on two fronts," Simon stated in his ruling.
He added the state cases are further along and judges at the state Office of Environmental Adjudication have more expertise in reviewing IDEM permit decisions.
The NRDC had argued that BP violated the Clean Air Act by not obtaining the right type of permit. The group said BP's modifications would result in increased emissions of various hazardous pollutants and that IDEM was duped into giving BP the wrong permit because BP underestimated emissions from the expanded refinery.
"The NRDC thinks the IDEM got the call wrong. It may have. But the proper remedy is through the Indiana regulatory and state court process," Simon wrote. "What is the point of having an expert agency appeals process -- or a state court appeals process -- if litigants can simply side-step it by turning to federal courts?"
Posted by Marcia Oddi on July 2, 2009 09:43 AM
Posted to Environment | Ind Fed D.Ct. Decisions
Wednesday, July 01, 2009
Courts - "Ohio Plaintiff in Private Lawsuit Has No Right to Discover Confidential Medical Records of Non-Parties"
Recalling these ILB entries from late 2006, under the heading "The Planned Parenthood Records Decision" (wherein the Indy Star wrote: "Attorney General Steve Carter is demanding the medical records of 73 low-income patients from Planned Parenthood of Indiana as part of an investigation that critics say tramples on Hoosiers' privacy rights"), the Supreme Court of Ohio today ruled that Planned Parenthood does not have to turn over abortion records to parents. The summary posted by the Ohio Court begins:
The Supreme Court of Ohio ruled today that, under the state laws in force at the time their claim arose in a private civil lawsuit against Planned Parenthood, the parents of a Cincinnati teenager who obtained an abortion at a Planned Parenthood clinic are not entitled to discover confidential child abuse reports or medical records of other minors who were treated at the same clinic.How Appealing has collected the links and made them available here.
Posted by Marcia Oddi on July 1, 2009 03:17 PM
Posted to Courts in general
Law - "Jackson’s Will Could Set Off Legal Battle Over Estate"; well duh!
On Nov. 28, 2007, the ILB wrote:
The Brooke Astor estate dispute promises to become the stuff of trusts and estates casebooks, moving along-side the Anna Nicole Smith estate fight. (See this March 11, 2007 ILB entry titled "Anna Nicole Smith bankruptcy and estate issues become law school case studies.")Solomon Moore and Liz Robbins of the NY Times write today's lengthy report on the Michael Jackson will and related matters. The Times makes a copy of the document available here, noting:See also this list of Brooke Astor entries
The 2002 document leaves Michael Jackson's entire estate to a family trust. It names his mother, Katherine Jackson, as legal guardian of his three children and beneficiary of the trust. If she were incapacitated or died, the singer Diana Ross would get custody of his children.
Posted by Marcia Oddi on July 1, 2009 03:01 PM
Posted to General Law Related
Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)
For publication opinions today (2):
In Martin Oil Marketing, LTD and Speedway SuperAmerica, LLC v. John L. Katzioris , a 16-page, 2-1 opinion, Judge Friedlander concludes:
In summary, Martin Oil and SSA presented evidence that Katzioris gave ESG permission in the fall of 1994 to enter his property to test for contamination and to conduct remediation efforts if necessary, evidence that Katzioris by his own admission is unable to contradict. Thus, as of that time, Katzioris possessed sufficient information to cause a reasonable person to inquire further in order to determine whether he had suffered a legal wrong. This occurred long before August 9, 2000, the date before which said information and knowledge defeats Katzioris‘s claim by application of the six-year statute of limitations. The trial court erred in denying the Appellants‘ motion for summary judgment on that basis. Judgment reversed.In Scott A. Spitler v.State of Indiana , a 7-page opinion, Judge Robb writes:VAIDIK, J., concurs.
NAJAM, J., dissents with opinion. [that begins, at p. 12] I respectfully dissent. The majority concludes that Katzioris‘ equivocal testimony amounts to a concession that he knew or should have known of the Appellants‘ conduct as early as 1994, thereby causing the statute of limitations to have run well before he filed this action in 2006. I would hold that the evidence favorable to Katzioris, the nonmoving party in this summary judgment appeal, is sufficient to create a genuine question of material fact regarding what he actually knew or should have known and when that knowledge should be attributed to him. As such, I would affirm the trial court‘s denial of the Appellants‘ summary judgment motion.
Following a guilty plea, Scott Spitler was convicted of aiding escape, a Class C felony, and sentenced to eight years, with seven years to be executed at the Department of Correction (“DOC”) and the remainder suspended to probation. Spitler appeals his sentence, contending that it is inappropriate in light of the nature of his offense and his character. Concluding that his sentence is not inappropriate, we affirm. * * *NFP civil opinions today (3):In other circumstances, we might say that a maximum sentence is inappropriate for a defendant with character such as Spitler's – with minimal criminal history, many positive attributes, and strong support. * * * However, the nature of his offense is so unique and egregious as to substantially outweigh the positive aspects of his character. Spitler has failed to persuade us that his eight-year sentence is inappropriate.
Capital One Bank v. Denton Maners and Carolyn Manners (NFP)
Bookout Properties, Inc. v. Debra Byrum (NFP)
Robert E. Wallace v. Eileen C. Wallace (NFP)
NFP criminal opinions today (5):
Tia Brown v. State of Indiana (NFP)
Jonathan R. Hogsdon v. State of Indiana (NFP)
Robert Tate v. State of Indiana (NFP)
Jeffrey Olson v. State of Indiana (NFP)
Scott Wallace v. State of Indiana (NFP)
Posted by Marcia Oddi on July 1, 2009 02:41 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Supreme court posts one from yesterday and one for today
State of Indiana v. Anthony W. Pollard is the opinion I wrote up here yesterday, although it hadn't been posted, and in fact still wasn't until this afternoon. In this 12-page opinion, Justice Rucker writes:
The question presented is whether a section of the Indiana Sex Offender Registration Act that we refer to as the “residency restriction statute” constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution. In this case the answer is yes. * * *in State of Indiana v. Jason Cioch, a 5-page, 5-0 opinion, Chief Justice Shepard writes:Anthony Pollard was charged with, convicted of, and apparently served the sentence for a crime qualifying him as an offender against children before the residency restriction statute was enacted. We conclude that as applied to Pollard, the statute violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. The trial court thus properly dismissed the information charging Pollard with a violation of the statute. See State v. Davis, 898 N.E.2d 281, 285 (Ind. 2008) (declaring “courts have the inherent authority to dismiss criminal charges where the prosecution of such charges would violate a defendant‟s constitutional rights”). We affirm the trial court‟s judgment.
Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Boehm, J., concurs in result and concurs in the opinion except as to Part B3, believing the absence of a scienter element for certain forms of child molesting is not significant in evaluating the punitive character of this statute.
The defendant in this drunk driving prosecution persuaded the trial court to suppress the results of his blood alcohol breath test on grounds that the test machine had not yet been adjusted to reflect daylight saving time since it took effect a few days earlier and the police officer wrote the actual time of day by hand on the test results printed by the machine.We hold the evidence should not have been suppressed. * * *
The State asserts the trial court erred in suppressing the breath test results merely because of an inaccurate timestamp on the breath test print out. We agree. * * *
The State argues that Officer Chin followed each of the required steps for administering the test and that the procedures require only that the operator to check the evidence ticket for the correct date and time and are silent as to what course of action the operator should take if an anomaly occur.
While Indiana courts have yet to discuss whether the accuracy of the time stamp has anything to do with the reliability of the test results, the Missouri Court of Appeals has discussed the issue. * * *
We find these decisions instructive. Here, Officer Chin followed each of the required steps of the procedure. The record does not indicate that he did anything that calls into question the reliability of the instrument or the evidence ticket when he noticed the erroneous timestamp and wrote the actual time of day on it.
The best authority Cioch offers in support of his position is State v. Johanson, 695 N.E.2d 965 (Ind. Ct. App. 1998). In Johanson, the Court of Appeals affirmed a trial court’s suppression of test results where the machine printed a blank ticket and the operator wrote in all the test information by hand from what he saw on the screen. Without reflecting on whether that was adequate ground for suppression, we think the officer’s action in this instance, noting a Daylight Savings difference, raises only a de minimus concern about the accuracy of the test results. We hold that this evidence is admissible.
Conclusion. We reverse the order of suppression.
Posted by Marcia Oddi on July 1, 2009 02:24 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - "What's next for David Camm? Case may not be remanded to trial court until fall"
Matt Thacker of the New Albany N & T has this story today. Some quotes:
After two trials and two convictions overturned on appeals, David Camm’s attorneys say they expect his case will go before a jury for a third time.Floyd County Prosecutor Keith Henderson said at a press conference Friday that he has not decided whether he will try the case again. * * *
Henderson and the office of the attorney general, which handled the appeals process, will ask for a rehearing from the Supreme Court. They have 30 days to file a request, and the defense has 20 days to respond.
It could take another month or two before the Supreme Court decides whether to hear the case again, said Stacy Uliana, an attorney for Camm.
The case will then be remanded to Warrick County, and Henderson will decide whether to file new charges. If and when a decision is made, the defense will file motions to change venue and reduce bond.
“Nothing is going to happen probably until the fall,” Uliana said.
Location for a third trial
Camm’s attorneys are concerned about all the media publicity the case has received. That means a third trial could take place in Northern Indiana.
“I believe we have to get as far away from the media attention as possible. Alaska would be nice,” Uliana said jokingly.
Katharine Liell, another attorney for Camm, said another option is to bring jurors from another part of the state to Warrick County and hold the trial there again.
She said they will look into how much media coverage the case received in places such as Indianapolis and Northern Indiana cities.
“I think there needs to be a little bit more investigation as to how much [the case] has permeated throughout the state,” Liell said.
The murders have been the subject of national coverage — both filmed and written — and attracted the attention of CBS’ “48 Hours” program.
A defense motion to change venue was rejected before Camm’s first trial. Prior to the second trial, the defense filed a motion to change venue and the prosecution did not oppose. The two sides agreed upon Warrick County.
If they cannot agree on a location this time, Uliana said a judge will likely choose three counties and the prosecution and defense will each get to strike one county, leaving one remaining. * * *
Possible changes with third trial
New scientific discoveries in the past three years could uncover new evidence. Liell referenced “touch DNA” — a relatively new method of analyzing skin cells left behind when a suspect touches a victim or other crime scene evidence.
Liell said that all of Camm’s defense costs for the past two trials and the appeals procedures have been paid for privately. Now, Camm is indigent, and the state will have to pay for Camm’s defense in the third trial.
Liell and Uliana continue to represent Camm in the immediate future, but have not decided whether to go through another trial.
“We have to look at the time, money and emotional cost,” Liell said.
Posted by Marcia Oddi on July 1, 2009 12:53 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Law - "Ex-state rep. Oxley charged over claim"
Updating this ILB entry from June 28th, Jon Murray reports today in the Indianapolis Star:
The Marion County prosecutor filed charges today against a former state lawmaker and recent candidate for lieutenant governor who avoided a public intoxication arrest by misrepresenting himself as a legislator.Former Rep. Dennie Oxley II, 38, faces charges of impersonation of a public servant, a Class A misdemeanor, and public intoxication, a Class B misdemeanor. A warrant was issued after charges were filed this morning in Marion Superior Court.
Posted by Marcia Oddi on July 1, 2009 12:39 PM
Posted to Indiana Law
Ind. Courts - Still more on: A bizarre story this afternoon involving the wife of a Marion Superior Court judge
Updating this ILB entry from yesterday, Jon Murray reports today in the Indianapolis Star:
Kristina H. Nelson, 43, who is the wife of Judge William Nelson, is accused of forging the signature of another judge -- her sister-in-law, Judge Sheila A. Carlisle -- in a bid to stop the foreclosure of the Nelsons' home.
AdvertisementBut which Nelson home became a matter of dispute Tuesday.
James Voyles, the attorney for Kristina Nelson, said that court documents identified the wrong home owned by the couple.
The affidavit filed in court Monday and a police report both listed an address for the couple's home in Marion County's Geist area. The Indianapolis Star published a photo of that house on the front page Tuesday.
But Voyles said the matter actually concerns the couple's vacation cabin near Rockville, Ind.
The cabin wasn't mentioned in the police documents, but Voyles said it is the only house owned by the Nelsons with a mortgage from EverHome Mortgage Co., the lender identified by police.
A foreclosure was initiated on the Geist home last year by Charter One Mortgage, according to Marion Circuit Court records. But Voyles said the couple no longer is in danger of losing that house.
"The notice that EverHome sent to her was for the other house," Voyles said, referring to the cabin.
Posted by Marcia Oddi on July 1, 2009 12:34 PM
Posted to Indiana Courts
Environment - More on "A Rough Term in Supreme Court for Environmentalists Draws to a Close"
Updating this ILB entry from June 26th, Marcia Coyle of the National Law Journal has a story today headed "High Court Losses Stun Environmentalists: Environmentalists are 0-for-5 at the Supreme Court this term." Some quotes:
Environmentalists suffered a stunning 0-for-5 outcome in the U.S. Supreme Court this term, their "worst term ever," according to advocates and scholars.The defeats left the environmental community -- and even its traditional antagonist in these cases, the business community -- wondering where the Court is heading in this increasingly important area of the law.
Is the Roberts Court pro-business, anti-environment, pro-government -- or something else? Their answers are as varied as the issues raised in the five cases that the justices decided.
What is clear is the Court's heightened interest in environmental law. The justices have decided 15 cases in just the past five terms, but in none of those terms, in fact in none of the past nine terms, have environmentalists experienced a complete shutout. * * *
For environmentalists, the defeats were particularly painful because their interests had prevailed in the courts below in all five cases. The justices granted review at the behest of business, even when the solicitor general of the United States recommended denying review. "They were all victories below for environmentalists, so you wonder if the Court is making some strategic choices in the cases it picks," said Jonathan Cannon, director of the environmental and land use program at the University of Virginia School of Law.
Based on the five decisions, the trend this term is "business always wins, even when the government's interest is to the contrary," said John Hanson, a partner at Washington's Beveridge & Diamond who represents businesses in environmental litigation.
Posted by Marcia Oddi on July 1, 2009 11:04 AM
Posted to Environment
Ind. Decisions - "Supreme Court won't shift casino funds to E.C."
The Supreme Court's decision yesterday in the case of East Chicago v. East Chicago Second Century, Inc. (ILB summary here), is the subject of two stories today in the Lake County papers.
Dan Hinkel reports in the NWI Tmes:
The Indiana Supreme Court has denied the city of East Chicago's bid for a court order to route millions of casino dollars back to the city. The justices also ruled the Indiana Gaming Commission can alter the agreement that funnels riverboat gambling money to two private groups.Here is a Gary Post-Tribune staff report that begins:Lawyers for Second Century and the Foundations of East Chicago declared the court's 21-page mixed decision Tuesday a victory in the long-running war over casino funds.
The fight centers on a deal sealed by former East Chicago Mayor Robert Pastrick to route casino money to the nonprofit Foundations and Second Century, a for-profit company run by Pastrick allies. Current Mayor George Pabey wants those economic-development funds back under city control.
The court's decision not to order the funds shifted to the city means the Pabey administration was "the big loser" in Tuesday's decision, said J. Lee McNeely, a lawyer for Second Century.
"The court agreed with us," McNeely said. "In fact, the supervisory authority over this agreement is the Gaming Commission, and we're comfortable with that." * * *
The decision's centerpiece is the ruling that the Gaming Commission can alter the agreement that sends cash to the controversial groups. Under the deal signed in 1994, 3.75 percent of the casino's annual revenue goes to economic development. The city gets 1 percent. The two nonprofit Foundations of East Chicago each take a 1 percent cut, and a 0.75 percent subsidy goes to Second Century, a firm created to build affordable housing.
Peter Rusthoven, a lawyer for the Foundations, said Tuesday his clients are "fine" with the Gaming Commission's overseeing the agreements. Second Century's lawyer, McNeely, said the for-profit -- run by Pastrick allies Thomas Cappas and Michael Pannos -- is "perfectly prepared" to address the agreements with the Gaming Commission.
"Every penny is accounted for. There's nothing mysterious there," he said.
Gaming officials could not be reached Tuesday to explain what the ruling might mean for the commission.
The justices also ruled on a series of lower-court decisions from the case's Byzantine legal history. In its decision Tuesday, the Supreme Court remanded several counts to be heard in the Marion County trial court. The justices ruled that lower courts erred in using statutes of limitations to dismiss several of the city's claims against Second Century and the Foundations.
McNeely predicted a "lot more litigation" in the case.
The legal arrangement that pays the for-profit East Chicago Second Century Inc., and two other not-for-profit entities a portion of East Chicago casino gambling revenue can be modified under Indiana Gaming Commission rules, the Indiana Supreme Court ruled.In a 21-page opinion, the court found that the letter agreement that provides for 0.75 percent of the gross receipts paid by the East Chicago casino to East Chicago Second Century Inc., could be subject to modification through the gaming commission administrative process with input from city officials.
The city receives 1 percent, as do two not-for-profit organizations, Twin City Education Foundation, and the East Chicago Community Foundation.
East Chicago's casino license has changed ownership several times from 1996 when Showboat first began operations. Harrah's Entertainment Inc., took over the license in 1999, and in 2005, after the commission approved transfer of the license to Resorts East Chicago, it asked the attorney general's office to investigate the financial operations of Second Century.
Posted by Marcia Oddi on July 1, 2009 10:28 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Courts - "State targets prosecutor's lapsed license"
Ruth Ann Krause reports today in the Gary Post-Tribune:
Newton County Prosecutor J. Edward Barce, who is serving as special prosecutor in a case involving a Gary lawyer charged with trafficking with an inmate, let his law license go into inactive status for more than three years.Until four months ago, Barce's license had been on inactive status since Aug. 5, 2005, according to Donald Lundberg, executive secretary of the Indiana Supreme Court Disciplinary Commission. Barce reactivated his license on Feb. 23, Lundberg said.
Barce's license status was one of the reasons cited by Jerome Taylor in seeking the dismissal of the trafficking with an inmate case Barce filed in June 2007 against Taylor's client, Gary attorney Carl Jones.
Taylor asked Lake Superior Court Judge Sheila Moss to dismiss the case in a March 19 filing and argued that Barce's inability to practice law in Indiana amounted to prosecutorial misconduct.
In a June 11 ruling, Moss found that Jones hadn't been harmed or prejudiced by the fact that Barce's law license was on inactive status. * * *
As attorney for the commission, Lundberg said he filed a complaint April 8 charging Barce with misconduct for functioning as Newton County prosecutor and as a special prosecutor in other cases with an inactive law license. A hearing is scheduled for Oct. 16 in Lafayette. If the court finds misconduct has occurred, it could take action ranging from a private reprimand to a permanent disbarment.
As for what happens to cases Barce was involved in as the elected prosecutor in Newton County, Lundberg said Barce's license status "raises a cloud over those cases. I suppose anyone who was convicted could test the validity of that conviction."
Two other Lake County cases had been referred to Barce for review because of potential conflicts in the Lake County prosecutor's office. They include a May 28 shooting outside Bennigan's in Gary in which one man was wounded. Gary lawyer Jerry Peteet, who was identified as a suspect, has denied involvement.
The second case stems from an October 2007 crash in Gary in which Gary lawyer Cornell Collins was arrested after allegedly driving drunk and leaving the scene. Collins' wife, Rochelle Moody, works in the prosecutor's office.
Posted by Marcia Oddi on July 1, 2009 10:17 AM
Posted to Indiana Courts
Environment - Still more on: "EPA secrecy on coal-ash list worries lawmakers: Some of 44 'high hazard' sites might be in Kentucky, Indiana"
Updating this ILB entry from Monday, Shaila Dewan of the NY Times has a story today on the EPA list. Some interesting points from the story:
The “high hazard” rating applied to sites where a dam failure would most likely result in a loss of human life, the environmental agency advisory said, but did not assess the structural integrity of the dam or its likelihood of failure. * * *The E.P.A. list was based on responses to a questionnaire that the agency sent to utilities and power plants. Environmentalists said they did not believe the list was complete because it was based on self-assessment.
“T.V.A. ranked its own dams, and it didn’t rank any of its dams ‘high hazard,’ ” said Lisa Evans, a lawyer for Earthjustice. * * *
Ms. Evans said dam integrity was not the only or even the central problem with coal ash dump sites. In 2007, an E.P.A. report identified 63 sites in 26 states where the water was contaminated by heavy metals from such dumps, including three other Tennessee Valley Authority dumps. Experts say coal ash should be stored in lined landfills to prevent contamination, but the agency questionnaire did not ask whether the sites were lined.
David Merryman of the Catawba Riverkeeper Foundation in Charlotte, N.C., said two of the sites on the “high hazard potential” list discharge into Mountain Island Lake, the primary source of drinking water for 750,000 people in the Charlotte area. Those sites, which belong to Duke Energy, are unlined ponds.
Jason Walls, a Duke Energy spokesman, said the company’s two newest coal ash ponds were lined.
Ten of the sites on the high hazard list belong to Duke Energy. But Mr. Walls said those sites were sound.
For years, the E.P.A. has failed to regulate the disposal of coal ash despite promises to do so. Under the Obama administration, agency officials have pledged to issue regulations by the end of 2009.
But Stephen Smith, the director of the Southern Alliance for Clean Energy, said withholding the list, even temporarily, raised questions about the agency’s intentions. “It’s still unclear to me what the E.P.A.’s ultimate goal here is to do,” Mr. Smith said. “Are they really going to aggressively regulate this material like they need to, or are they taking more of a hands-off approach?”
Posted by Marcia Oddi on July 1, 2009 10:08 AM
Posted to Environment
Environment - "Federal judge won't block BP refinery expansion"
So reports the AP this morning in a brief story. A quote:
Judge Philip Simon in Hammond dismissed the Natural Resources Defense Council's request for an injunction, ruling a appeal pending before Indiana environmental regulators should be decided before the matter goes to federal court.Here is the July 9, 2008 ILB entry on the initial filing of the lawsuit. See also this July 13th entry.
Posted by Marcia Oddi on July 1, 2009 10:00 AM
Posted to Environment | Ind Fed D.Ct. Decisions
Ind. Law - More on new laws taking effect July 1
"New batch of laws go into effect today" is the headline to this story today in the Indianapolis Star, written by Mary Beth Schneider.
Jane Huh of the Gary Post-Tribune has this lengthy story
Posted by Marcia Oddi on July 1, 2009 09:55 AM
Posted to Indiana Law
Courts - "Is Melendez-Diaz already endangered?"
Monday the SCOTUS has decided the case of Melendez-Diaz v. Massachusetts (07-591), on whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence. As noted in this June 24th ILB entry, at least two Indiana cases argued before our Supreme Court in 2008 have probably been awaiting this ruling.
Also on Monday, Lyle Denniston of the SCOTUSLaw Blog had an interesting analysis piece headed "Is Melendez-Diaz already endangered?" Just a few quotes:
The ruling, made under the Constitution’s Confrontation Clause, requires the prosecution, if it plans to present a lab report as evidence in a criminal trial, to make the analyst who prepared it available for on-demand cross-examination by defense counsel. The decision came on a 5-4 vote.If it were possible to pick up a fifth vote, could the dissenters from that case then lead the Court to reconsider — or least narrow considerably – the decision in Melendez-Diaz? * * *
This is speculation, of course, but there is little else to suggest why the Court announced Monday that, next Term, it will review the case of Briscoe, et al., v. Virginia (07-11191). Here is the question raised in the Briscoe petition, filed in May of last year by University of Michigan law professor Richard D. Friedman:
“If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?”
Posted by Marcia Oddi on July 1, 2009 09:44 AM
Posted to Courts in general
Ind. Courts - Injunction against Governor not needed after all, but interesting
Dave Stafford of the Anderson Herald Bulletin reported yesterday:
Fearing lawmakers might fail to produce a budget, Hoosier Park and other state gambling sites went to court Tuesday and got an order to prevent a state shutdown in such an event.Marion County Superior Court Judge John F. Hanley issued an injunction that barred Gov. Mitch Daniels and state agencies from closing casinos and race tracks if a budget had not been approved. Hanley sided with casino operators who said the state had no grounds to close the sites amid the budget crisis.
Daniels had threatened Tuesday to close the gaming sites if a budget had not been approved by midnight. He had claimed that state gaming regulators were nonessential state employees who would be furloughed without a budget.
Hanley disagreed and ruled that closing casinos and race tracks would provide no benefit to the state and would irreparably harm the gaming sites.
“All costs associated with the enforcement of the Indiana Gaming Commission’s powers and duties are paid for directly by the casinos, including all the costs associated with gaming agents who are on site in every casino,” Hanley ruled. “No monies are expended by the state of Indiana to pay for gaming agents or the cost of enforcing regulations.”
The Casino Association of Indiana filed its request for an injunction against Daniels, the Gaming Commission and the Indiana Attorney General’s office. It sued on behalf of the state’s gaming sites, including Hoosier Park.
“I think we presented a very good case,” said Jim Brown, Hoosier Park director of gaming.
While approval of a state budget averted a possible shutdown, Tuesday’s ruling could set a precedent if the state finds itself in a similar future financial crisis.
Hanley’s order set a hearing of giving the state until July 8 to show why his injunction should not be made permanent.
For Brown, the ruling ended days of planning for the possibility of a state-imposed shutdown ahead of one of Hoosier Park’s biggest weekends.
“It was interesting,” Brown said. “I’m just extremely happy that we’re going to be open and celebrating an exciting Fourth of July weekend.”
Posted by Marcia Oddi on July 1, 2009 09:39 AM
Posted to Ind. Trial Ct. Decisions
Ind. Decisions - More on: Upcoming oral arguments this week and next
The schedule posted Monday by the ILB has been updated to add a Court of Appeals argument set for July 8th.
Posted by Marcia Oddi on July 1, 2009 07:19 AM
Posted to Upcoming Oral Arguments
Tuesday, June 30, 2009
Ind. Decisions - Supreme Court rules in sex offender case
I've received this report:
The following case has been granted transfer with opinion:No opinion has been posted however. Pollard was the case where the COA "declared unconstitutional a 2006 state law barring registered sex offenders from living near schools, parks and youth centers in cases where the offender had already owned his home when the law took effect," to quote a 5/14/2008 story in the South Bend Tribune. Here, from the May 13th opinion of the COA:State v. Anthony Pollard -- 05A02-0707-CR-640 -- 6/30/09 -- Transfer granted with opinion
The State of Indiana appeals Blackford Superior Court’s dismissal of the charge of Class D felony sex offender residency offense against Anthony Pollard (“Pollard”). The State argues that the trial court erred when it found that Indiana Code section 35-42-4-11, as applied to Pollard, violated Article 1, Section 24 of the Indiana Constitution.
We affirm.
Here, from the docket today, is the Supreme Court's holding:
WE AFFIRM THE TRIAL COURT'S JUDGMENT--------RUCKER, J., SHEPARD, C.J., AND DICKSON AND SULLIVAN, JJ., CONCUR.. BOEHM, J., CONCURS IN RESULT AND CONCURS IN THE OPINION EXCEPT AS TO PART B3, BELIEVING THE ABSENCE OF A SCIENTER ELEMENT FOR CERTAIN FORMS OF CHILD MOLESTING IS NOT SIGNIFICANT IN EVALUATING THE PUNITIVE CHARACTER OF THIS STATUTE.
Posted by Marcia Oddi on June 30, 2009 06:38 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Courts - More on: Court of Appeals caseload down considerably in calendar 2009
Updating this ILB entry from Monday, today the ILB has received this information from Chief Judge Baker about the Court of Appeals current caseload:
We are down 200 cases from 2008. We still have 100% clearance.And here are the preliminary numbers:
Monthly intake: 230
YTD intake: 1281 (down 202 from 2008)
YTD intake 2008: 1483Avg cases per day for June: 10.45
Disposed: 228 majority opinions + 0 dispositive order = 228 total disposed
YTD disposed: 1304 + 8 dispositive orders = 1312 total disposed (down 173 from 2008)
YTD disposed 2008: 1476 + 9 disp. orders = 1485 total disposedPrevious pending: 342
Current pending: 345 (up 3)
Posted by Marcia Oddi on June 30, 2009 05:27 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Courts should operate tomorrow, no matter what
Chief Justice Shepard has issued this message:
As of this hour, the General Assembly appears poised to adopt a new biennial budget, but neither house has yet convened to consider the proposal that has been negotiated over the last few days. Thus, we may not know before the end of the business day whether there will be a budget passed or not.There can be little doubt that just as public safety requires the continuation of state law enforcement and corrections activities it likewise relies on the availability of Indiana's trial courts for search warrants, arraignments and bail, protective orders, child support, and a host of other needs. We therefore ask that you be at your post tomorrow, as we will.
In the event that there is not a budget, of course, the appellate courts and the support structure for the judicial branch will need to shut down, save for certain emergency functions, beginning tomorrow. Detailed decisions about those closings and furloughs will be made tomorrow morning should that be necessary.
Posted by Marcia Oddi on June 30, 2009 04:31 PM
Posted to Indiana Courts
Ind. Law - More on: What about the new budget agreement? What will be in it? [Updated]
Updating this ILB entry from this morning, the Conference Committee Report (or draft #1 at least) has been posted online, within the last two hours. Access it here, at the bottom of the page. Both houses' versions should be the same. As soon as I have had a chance to review it, I will post more here.
[5:59 PM] - The Star reports the House has passed the budget. As the House was the hurdle, one can assume the Senate will follow suit and the bill will soon be on its way to the Governor.
Here are some things I've noticed in the new version:
Some "Augumentation" provison, p. 11 of PDF. Same "withholding allotment" powers on p. 105 of PDF.
One reference to "Notre Dame," as before.
94 references to "ombudsman."
P. 143, assessment of golf courses.
P. 341, operation of golf cart on highway
Twenty references to "Virtual charter schools"
CIB language beginning on p. 459 - terms of members.
P. 464, SECTION 505 -- "Effective Dates of HEA 1001(ss)-2009"
P. 465, SECTION 507 - 509 -- Interesting amendments that may impact the liability of railroad companies.
Very interesting language beginning at p. 469 of the PDFthat does not follow established procedure to amending and repealing the law -- SECTION 514 - 518 providing that specified changes made earlier in the report "shall not take effect" and telling the publisher of the Indiana Code what to do: i.e. "The publisher of the Indiana Code shall publish IC 20-28-11-3 as amended by this SECTION."
Keeps the court automated recordkeeping (JTAC) fee at the current $7 annually until 7-1-11, then $4 annually thereafter. P 389 of PDF, SECTION 394. See these ILB entries for background.
Posted by Marcia Oddi on June 30, 2009 04:24 PM
Posted to Indiana Law
Ind. Courts - More on: A bizarre story this afternoon involving the wife of a Marion Superior Court judge
Updating this entry, Jon Murray reports this afternoon:
A senior judge today asked the Indiana Supreme Court to appoint a special judge to handle a politically sensitive forgery case with connections to two sitting Marion Superior Court judges.Neither judge is accused of wrongdoing. But the wife of one is accused of forging the signature of the other — her sister-in-law — in a bid to stop the foreclosure of the couple’s Geist home. * * *
Her attorney and Marion County prosecutors were in court this morning. Senior Judge Ruth Reichard, filling in for Judge Grant Hawkins, recused herself and signed the special judge motion.
It says no judge in the county could handle the case without a potential conflict of interest.
Reichard had earlier granted Marion County prosecutors’ request to appoint Clinton County deputy prosecutor Judith Johnson as special prosecutor.
But Mario Massillamany, spokesman for Marion County Prosecutor Carl Brizzi, said today that Johnson has since declined to participate. That leaves the case in a holding pattern until the special judge selected by the Indiana Supreme Court can appoint another special prosecutor, he said.
Posted by Marcia Oddi on June 30, 2009 01:30 PM
Posted to Indiana Courts
Ind. Decisions - A second opinion today from the Supreme Court
In East Chicago v. East Chicago Second Century, Inc., a 21-page, 4-1 opinion, Chief Justice Shepard writes:
When riverboat gambling came to Indiana and to East Chicago, the applicant for the gaming license and the City of East Chicago negotiated certain arrangements to commit part of the resulting revenue toward economic and workforce development in the City. Several private corporations were created to facilitate those efforts. When the Indiana Gaming Commission issued a license for East Chicago, it conditioned the license on those arrangements.On the issues joined by the City and these corporations in the present appeal (one of several appeals), we hold certain of the City‟s claims should survive a motion to dismiss and others should not. We also hold the existing arrangements are subject to alteration, through the appropriate administrative channels, as the Indiana Gaming Commission on advice of the City and others may deem best for the future of East Chicago‟s residents. * * *
Conclusion. As detailed above, the trial court is affirmed on some points and reversed on others. We remand so that there can be further proceedings on the merits.
Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J concurring and dissenting with separate opinion.
Posted by Marcia Oddi on June 30, 2009 12:15 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Two Indiana opinions today from the 7th Circuit
In U.S. v. Rolls-Royce (SD Ind. Judge Barker), a 13-page opinion (that is not readily summarized) from a panel including Judges Wood and Posner, Chief Judge Easterbrook writes:
Now that the question has been squarely presented, we join the fifth circuit in concluding that the resolution of personal employment litigation does not preclude a qui tam action, in which the relator acts as a representative of the public. The special status of the United States counsels against reflexive transfer of rules of preclusion from private to public litigation. See United States v. Mendoza, 464 U.S. 154 (1984) (non-mutual issue preclusion does not apply to suits involving the United States). Cf. EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) (an employee’s private disposition, via arbitration, of a claim against an employer does not diminish the federal government’s ability to pursue judicial relief independently); EEOC v. Sidley Austin LLP, 437 F.3d 695 (7th Cir. 2006) (employee’s failure to make a timely charge of discrimination does not prevent EEOC from suing to vindicate interest in law enforcement). * * *In U.S v. Cole (ND Ind., Judge Moody), a 10-page opinion, Judge Sykes writes:The judgment of the district court is affirmed with respect to the claim under §3729(a)(7) and otherwise reversed. The case is remanded for a decision on the merits.
Parrish Cole entered into a written plea agreement with the government in which he acknowledged distributing less than 400 grams of heroin and less than a kilogram of marijuana. The district court accepted the plea agreement but found, based on information in the presentence report, that Cole should be held responsible for a greater quantity of drugs than the amounts he had admitted in the agreement. The court increased Cole’s guidelines range accordingly and sentenced Cole to 97 months in prison, which was nearly double the sentence Cole expected if the court had followed the recommendations in the plea agreement. Cole challenges his sentence; although in his plea agreement he waived his right to appeal, he argues that the appeal waiver is unenforceable because the district court’s independent calculation of the drug quantities effectively nullified the agreement.We disagree. The enforceability of Cole’s appeal waiver hinges on whether the drug quantities in Cole’s plea agreement were binding on the district court for sentencing purposes. Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure provides that if the district court accepts a plea containing an agreement between the government and the defendant about a specific sentence, sentencing range, or the applicability of a specific guidelines provision, policy statement, or sentencing factor, the court is bound by the parties’ agreement for purposes of sentencing. Cole’s drug-quantity admissions in the plea agreement do not fall into any of these categories but are instead factual stipulations that fall outside Rule 11(c)(1)(C)’s scope and thus do not bind the district court. See U.S.S.G. § 6B1.4(d). Accordingly, when the district court independently quantified the amount of drugs attributable to Cole based on information in the presentence report, it did not nullify the plea agreement. The appeal waiver in Cole’s agreement is enforceable, and we dismiss his appeal.
Posted by Marcia Oddi on June 30, 2009 12:00 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 8 today (and 24 NFP)
For publication opinions today (8):
Francis W. Splittorff v. Jerry Aigner, Pam Aigner and Beverly Childs - "Splittorff cannot prevail on his statutory claims for relief. Neither statute upon which Splittorff relies was written in contemplation of a former owner who holds over after title has passed under a tax sale deed. And Splittorff’s other contentions on appeal amount to a request that we reweigh the evidence, which we will not do. There is evidence in the record to support the trial court’s damages award. Accordingly, we affirm the trial court."
Helene C. Uhlman v. Rodrigo R. Panares, M.D., et al - "We conclude as a matter of law that Uhlman was an at-will employee when she served as Administrator of the health department. She has pointed to no evidence in the record to show that she was employed for a definite term or that she provided adequate consideration to convert the presumptively at-will employment to one in which she could only be terminated for good cause. We further conclude as a matter of law that Dr. Panares, as Health Officer, had authority to terminate Uhlman as Administrator. The legislative scheme in existence when Uhlman was terminated gave the Health Officer executive authority to make employment decisions. Thus, the legislature accorded broad discretion regarding employment decisions to the Health Officer, as executive officer of the Department. We conclude that the Health Officer‟s authority to make employment decisions includes the authority to terminate employees without the approval of the Board. And, as an at-will employee, Uhlman could be terminated from her employment for any cause or for no cause at all. See Trinity Baptist Church v. Howard, 869 N.E.2d 1225, 1228 (Ind. Ct. App. 2007), trans. denied. The trial court did not err in granting partial summary judgment to Defendants."
Andrew King v. State of Indiana is a 27-page opinion by Judge Crone dealing with online child solicitation. The issues are set out as:
I. Did the trial court abuse its discretion in admitting certain evidence? [ILB - The opinion discusses admission of internet evidence in depth here]Re "impossibility", the Dec. 31st, 2-1 Court of Appeals ruling in the case of Randy Gibbs v. State of Indiana is referenced 21 times in the opinion; Aplin v. State is cited 34 times. The Court notes in footnote 13 - "Our supreme court denied transfer in Gibbs on May 14, 2009. Justice Dickson voted to grant transfer." Footnote 14 reads: "Justices Dickson and Sullivan voted to grant transfer in Aplin." [See this Jan. 4, 2009 ILB entry headed "Rulings target Internet sex stings: Appeals court says there must be an actual victim."] The Court concludes Part II:II. Is impossibility a defense to the crime of attempted dissemination of matter harmful to minors?
III. Did the State establish the corpus delicti of the crimes?
We agree with Judge May [who dissented in Gibbs] that impossibility is not a defense to the crime of attempted dissemination of matter harmful to minors and believe that the legislature could not have intended to foreclose prosecution under Indiana Code Section 35-49-3-3 when the defendant erroneously believes the victim is a minor. Both Indiana Code Section 35-41-5-1(b) and our supreme court's interpretation of the statute in Zickefoose support this conclusion. Here, King intended to send a photo of an exposed penis to a fifteen-year-old via the internet and did all he believed was necessary to complete the offense of dissemination of matter harmful to minors. He failed to complete the offense only because it was impossible under the circumstances, i.e., because Detective Odier was not a minor. Consequently, we affirm his conviction for attempting that crime.Jonathan Parahams Jr. v. State of Indiana - "Parahams does not argue that the variance between the charging information and the proof at trial misled him in the preparation of his defense. Moreover, on the record before us, we cannot conclude that the variance prejudiced Parahams. Parahams's one charged act of resisting was fleeing from a police officer after he was told to stop. The probable cause affidavit attached to the charging information listed the five officers that were present at the scene. The State proved that one of those officers, Officer Chicowicz, ordered Parahams to stop when he began to flee. For all of these reasons, we cannot conclude that the variance was fatal to the State‟s case. The State therefore presented sufficient evidence to prove that Parahams resisted law enforcement and we affirm his Class A misdemeanor resisting law enforcement conviction."
K.M.K. v. A.K. and Jeffry G. Price - "Although we can discern no basis in the record for an award of attorney fees, in light of the statutory language allowing for attorney‟s fees in any civil case where the trial court deems such an award to be necessary or proper, we conclude that Price is not barred from requesting attorney‟s fees in the instant matter."
Tanette Kinnon v. State of Indiana - "On July 7, 2005, the Indiana Office of Inspector General received a complaint from the Office of Management and Budget regarding mileage reimbursements for State employees during the fiscal year of July 1, 2004 to June 30, 2005. After conducting an audit, the Office of Management and Budget referred to the Office of Inspector General the names of the ten State employees who submitted the highest reimbursement claims. Kinnon was number one on the list. For the time period the Office of Inspector General initially examined, July 1, 2004 until June 30, 2005, Kinnon reported 95,869 miles, which translated into $32,595.69 in reimbursements. Although four homemakers in Kinnon‟s district were all in the top ten for mileage statewide, Kinnon‟s amount was about three times that of the next-highest claim."
Regunal Dowell v. State of Indiana - "The State cross-appeals, arguing that Dowell‟s appeal must be dismissed because he failed to timely file his underlying motion to correct error, thereby depriving this Court of jurisdiction to entertain his appeal. Concluding that the prison mailbox rule applies, we determine that Dowell timely filed his motion to correct error. We also conclude that the post-conviction court did not err by denying Dowell‟s petition for post-conviction relief without an evidentiary hearing. We affirm."
N.S., Alleged to be CHINS; T.S. & S.B. v. IDCS - "Having concluded that Indiana Code section 31-40-3-2 clearly states that the fiscal body of the county shall appropriate money for use by the courts in providing GAL or CASA services, and that Indiana Code section 33-24-6-4 supports the proposition that the burden of financially supporting GAL and CASA programs lies with the county, we conclude that the trial court erred in ordering DCS to pay the fees associated with the services provided by the GALs in the instant matters. In addition, we recognize the distinct roles of each of our three branches of government and thus leave to the legislative branch the question of whether, in light of the trend toward State funding of child welfare costs, the costs associated with GALs and CASAs should be shifted to the State. Under our current statutory scheme, however, it is clear that the burden of paying for services rendered by GALs or CASAs should be attributed to and paid for by the county. The judgment of the trial court is reversed, and this matter is remanded for further proceedings."
NFP civil opinions today (6):
Term. of Parent-Child Rel. of D.G., et al; S.K. & C.G., et al v. IDCS (NFP)
The Invol. Term. of the Parent-Child Rel. of D.H.; B.M. v. Marion Co. Dept. of Child Svcs. (NFP)
Term. of Parent-Child Rel. of J.D.; B.D. v. IDCS (NFP)
A.P. v. Indiana Dept. of Child Svcs. (NFP)
Scott County Area Plan Commission v. Townes Half-Way House, Inc. (NFP)
Jeff Canen v. Fisher Vorhis Draper Chapel (NFP)
NFP criminal opinions today (18):
Jarrode E. Phillips v. State of Indiana (NFP)
Troy A. Wright v. State of Indiana (NFP)
Loyce Williams v. State of Indiana (NFP)
Lawaine Smith v. State of Indiana (NFP)
Andre Payton v. State of Indiana (NFP)
Tony Lynn Reed v. State of Indiana (NFP)
Brian Devlin v. State of Indiana (NFP)
Jose A. Cortez v. State of Indiana (NFP)
Kenneth Bartley v. State of Indiana (NFP)
Leonard Sago v. State of Indiana (NFP)
Christopher Jackson v. State of Indiana (NFP)
Lavarter Lewis, Jr. v. State of Indiana (NFP)
Jennifer Whitesell v. State of Indiana (NFP)
A.D. v. State of Indiana (NFP)
Seth Beck v. State of Indiana (NFP)
Matt Taylor v. State of Indiana (NFP)
Andres Jackson v. State of Indiana (NFP)
Terry Fennessee v. State of Indiana (NFP)
Posted by Marcia Oddi on June 30, 2009 11:16 AM
Posted to Ind. App.Ct. Decisions
Ind. Laws - More on "New Ind. laws include teen driver cell phone ban"
Updating this ILB entry from June 28th, two stories today:
From the Elkhart Truth, "Dog breeders face license law." The bill is HEA 1468.
From the Gary Post-Tribune, a lengthy story by Karen Snelling, headed "New state law requires all cigarettes burn out quickly." Some quotes:
Retailer Dhiren Shah expects his tobacco sales to drop starting July 1, when a new law will require that all cigarettes sold in Indiana burn out more quickly when left unattended.Note that this s actually a 2008 law, that by its terms will not take effect until July 1, 2009. It may be found at IC 22-14-7."Our customers complain that fire-safe cigarettes go out too quickly and taste very funky," said Shah, owner of Karma Tobacco and Cigar Lounge in Merrillville.
Smokers buy traditional cigarettes by the carton, Shah said, but turn around and walk out if he only has fire-safe smokes in stock.
"It's definitely hurting business already," he said. "And once the regular cigarettes are gone, I think people will probably try to quit smoking because of the terrible taste."
The fire-safe cigarette started appearing in area stores in May, two months ahead of the state mandate.
The cigarettes are made with two to three bands of less porous paper designed to slow down the burning tobacco. Smokers have to puff on the cigarette for it burn through the bands.
Indiana will join 31 other states that already or by the end of summer will require vendors to sell only fire-safe, or low-ignition, cigarettes designed to reduce fire deaths.
"There's no difference in the tobacco or the paper used in the new cigarettes and the regular cigarettes," Indiana State Fire Marshal James Greeson said. "But smokers have to inhale in order for the tobacco to burn through the band or the cigarettes will self-extinguish."
Posted by Marcia Oddi on June 30, 2009 10:46 AM
Posted to Indiana Law
Ind. Decisions - One today, so far, from Supreme Court
Referring back to this June 24th ILB entry headed "Many more Indiana Supreme Court opinions expected before July 1," one more of the 2008 argued criminal cases still pending has been decided today.
In George Jackson v. State of Indiana, a 7-page, 5-0 opinion, Justice Rucker writes:
George Jackson appeals his conviction for unlawful possession of a firearm by a serious violent felon. Finding the search warrant for Jackson's home valid under the good faith exception to the warrant requirement, we affirm the conviction. * * *Jackson appealed contending the trial court erred in denying his pretrial motion to suppress. Noting that because he is appealing following a conviction, and thus the issue is more appropriately framed as whether the trial court properly admitted the evidence at trial, a divided panel of the Court of Appeals reversed Jackson's conviction. According to the majority the search warrant was invalid under Indiana Code § 35-33-5-2, and the evidence seized during the search was not otherwise admissible under the good faith exception to the warrant requirement. Jackson v. State, 889 N.E.2d 830 (Ind. Ct. App. 2008). Having previously granted transfer we now affirm the trial court. * * *
The Court of Appeals' majority examined the evidence before the issuing judge and concluded it fell short of the probable cause required under Indiana's warrant statute. More particularly, the court noted that Detective Blackwell‟s sworn oral testimony was based on hearsay statements of the confidential informant and determined there was no testimony establishing the informant‟s credibility as required by I.C. § 35-33-5-2(b). Chief Judge Baker dissented emphasizing that the confidential informant had a relationship with police, formed by making several controlled buys in the past for the Drug Task Force. Jackson, 889 N.E.2d at 835-36. * * *
We acknowledge that Detective Blackwell's testimony is abbreviated, and public complaints have their limitations. See, e.g., Pawloski v. State, 269 Ind. 350, 354-55, 380 N.E.2d 1230, 1232-33 (1978) (test for determining reliability of information varies based on whether the source is an anonymous tipster, a professional informant, or a cooperative citizen). But the heart of the matter is not whether a court of review agrees or disagrees about the existence of probable cause sufficient to support the issuance of a search warrant; rather the issue is whether when viewed from a totality of the circumstances there was enough evidence before the issuing court that would allow the court to make that call. We are of the view the evidence in this case meets that standard.
Conclusion. We therefore affirm the judgment of the trial court.
Posted by Marcia Oddi on June 30, 2009 10:20 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Law - What about the new budget agreement? What will be in it?
Reports this morning are that a budget agreement may have been reached and that the House and Senate will vote on it later today. If agreement is reached, it will be sent to the Governor, who would be expected to act on it before the end of the day.
This agreement initially will be in the form of a Conference Committee Report. The question is, what precisely will be in it?
The papers report about only the broadest of outlines of an agreement. Will anyone have a chance to review it in detail before it is acted upon?
As we have seen in past years, the budget bill is not limited to appropriations. Seemingly anything may be contained within its hundreds of pages of dense text. (See this ILB entry from June 23rd on some of what is in the version of HB 1001 adopted by the Senate.)
The House and Senate rules contain some safeguards to insure that legislators, member of the public, and the Governor, have at least a limited opportunity to review a bill before it becomes a law. Here is Senate Standing Rule 83(a):
83. (a) Each report of a conference committee for the adjustment of differences between the Senate and House, together with a digest of the bill and the changes made, shall be reduced to writing, signed by the appointed conferees, reviewed by the Majority Attorney and Minority Attorney, filed with the Office of the Principal Secretary at least eight (8) hours before action is taken thereon, and distributed to the Senators at least four (4) hours before action is taken thereon.Here are House Standing Rules 163 and 164:
163. Placed on Members’ Desks. All reports of conference committees for adjustment of differences between the House and Senate together with a digest of the bill shall be filed with the Principal Clerk, reproduced, placed on each member’s desk, and made available on the House computer network as soon as practicable.Expect these rules to be suspended. Ordinarily, within the next few hours, the CCRs on HB 1001 of this special session would be available for review here, at the very bottom of the page. But today is when all the safeguards break down.164. Time on Members’ Desks.
164.1 During the first regular session, conference committee reports shall be laid over for twenty-four (24) hours after filing.
164.2 During the first regular session, the budget bill shall be laid over for twenty-four (24) hours after filing. This rule may not be suspended without a two-thirds (2/3) vote of the members of the House.
164.3 During the second regular session, such reports shall be laid over for twenty-four (24) hours after filing.
164.4 Such reports shall then be read in their entirety again and placed before the House for action.
Posted by Marcia Oddi on June 30, 2009 09:00 AM
Posted to Indiana Government | Indiana Law
Monday, June 29, 2009
Ind. Courts - A bizarre story this afternoon involving the wife of a Marion Superior Court judge [Updated]
Heather Gillers of the Indianapolis Star has the story. Some quotes:
A former IMPD employee who is the wife of a Marion Superior Court judge was arrested Friday on preliminary charges she forged another judge's name to stop foreclosure of their home, according to the Indianapolis Metropolitan Police Department.[Updated 6/30/09] This morning's Indianapolis Star has an updated version of the story, now bylined by Heather Gillers and Jon Murray. It begins:Kristina Nelson, 43, who worked as a civilian public assistance officer for IMPD, told police she had signed Judge Sheila Carlisle's name on a counterfeit document claiming she and her husband had been attacked and ordering Everhome Mortgage to stop the foreclosure until the couple could recover, according to the police report, which was filed Friday.
She told police that her husband, Marion Superior Court Judge William Nelson, knew nothing about the incident. Kristina Nelson is Carlisle’s sister-in-law, the police report said. Carlisle is married to her brother. * * *
Kristina Nelson faxed the document to Everhome Mortgage on June 17, according to police. The document said that the Nelson’s had been the victims of an assault and that William Nelson had been shot and Kristina Nelson had suffered injuries that required her jaw to be wired shut — none of which was true, police said.
Carlisle told police investigators the signature was not hers but that she recognized the address as belonging to her sister-in-law, Kristina Nelson, the police report said.
Forging a judge's signature. Pretending to be the victim of a vicious assault. Impersonating a co-worker at the Indianapolis Metropolitan Police Department.Few would expect such actions from a police employee, much less the wife of a judge. But those are the desperate and criminal steps police say the wife of Marion Superior Court Judge William Nelson took in an effort to avoid foreclosure on the couple's Geist home.
Posted by Marcia Oddi on June 29, 2009 06:20 PM
Posted to Indiana Courts
Environment - More on: "EPA secrecy on coal-ash list worries lawmakers: Some of 44 'high hazard' sites might be in Kentucky, Indiana" [Updated]
Updating this ILB entry from June13th, the EPA has had a change of heart and has released the list, according to this AP story by H. Josef Hebert. Some quotes:
WASHINGTON -- The Environmental Protection Agency on Monday made public a list of 26 communities in 10 states where residents are potentially threatened by coal ash storage ponds similar to one that flooded a neighborhood in Tennessee last year.[Updated] Here is a more comprehensive story, from USA Today, with a link to the EPA Fact Sheet.North Carolina has the most sites on the list, a dozen. The largest concentration is near Cochise, Ariz., where there are seven storage ponds.
The agency said it will inspect each of the 44 coal ash sites located near communities to make certain they are structurally sound. The sites are being classified as potentially highly hazardous because they are near where people live and not because of any discovered defect.
"The high hazard potential means there will be probable loss of human life if there is a significant dam failure," said Matt Hale, director of EPA's office of research, conservation and recovery. "It is a measure of what would happen if the dam would fail. It is not a measure of the stability of the dam." * * *
Until now, the national coal ash site list has not been provided to the public. Earlier this month the Army Corps of Engineers said it didn't want the locations disclosed because of national security and that it could help terrorists target such facilities. Hale said that issue has been resolved.
The EPA has been to half of the 44 sites and expects to have reports on those sites in the near future, Hale said. The EPA inspections are continuing. The EPA also is reviewing state inspection reports at some of the sites.
The seven ponds near Cochise, Ariz., hold material from the Apache Station Combustion Waste Disposal Facility operated by Arizona Electric Power Cooperative.
The 10 states, the number of sites, and communities are:
-North Carolina, 12 (Belmont, Walnut Cove, Spencer, Eden, Mount Holy, Terrell and Arden).
-Arizona, 9 (Cochise, Joseph City).
-Kentucky, 7 (Louisa, Harrodsburg, Ghent and Louisville).-Ohio, 6 (Waterford, Brilliant and Cheshire).
-West Virginia, 4 (Willow Island, St. Albans, Moundsville, New Haven).
-Illiniois, 2 (Havana, Alton).
-Indiana, 1 (Lawrenceburg).
-Pennsylvania, 1 (Shippingport).
-Georgia, 1 (Milledgeville).
-Montana, 1 (Colstrip).
Posted by Marcia Oddi on June 29, 2009 05:51 PM
Posted to Environment
Ind. Decisions - Legal filings indicate Office of Attorney General and the Indiana Gaming Commission to be somewhat at odds
Readers of Indiana Legislative Insight and Indiana Gaming Insight are aware of a "war of words" going on in filings before the Indiana Supreme Court, between the Office of the Attorney General and the Indiana Gaming Commission, relating to the case of FOUNDATIONS OF EAST CHICAGO, INC. -V- ATTORNEY GENERAL (49 A 02 - 0711 - CV - 00987).
Here is the list of ILB entries on this case, including this entry on the April 28th COA opinion, which provides essential background.
The ILB has obtained and is making available a number of the filings:
- First, the Docket, as of today - 6/29/09. I've highlighted entries (beginning on p. 7) related to the documents which follow.
- The 5/28/09 Amicus Curiae brief
of the Indiana Gaming Commission in support of a petition to transfer.
- The 6/5/09 Motion to Strike Amicus Curiae brief of the Indiana Gaming Commission, filed by the OAG.
- The 6/12/09 Response in opposition to motion to strike, filed by the Indiana Gaming Commission
[Documents will be added to this posting as time and availability allows -- check back]
Posted by Marcia Oddi on June 29, 2009 02:33 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)
For publication opinions today (2):
In Kenneth Baldi v. State of Indiana , an 8-page opinion, Chief Judge Baker writes:
Appellant-defendant Kenneth Baldi appeals the trial court’s denial of his petition for habeas corpus relief. Specifically, Baldi argues that the trial court erroneously concluded that the Indiana Parole Board (Parole Board) had not “turned over” the sentence that was imposed for Aggravated Battery, a class B felony. Baldi claims that the Parole Board discharged him from that sentence and, as a result, the trial court should have granted his motion for a writ of habeas corpus. Concluding that Baldi has failed to demonstrate any entitlement to relief, we affirm the judgment of the trial court. * * *In Ruben Maldonado v. State of Indiana, an 11-page opinion, Chief Judge Baker writes:Baldi is apparently arguing that he could not have violated his probation until he had been “turned over” to begin serving his sentence on the FD-25 charge.
Notwithstanding this contention, we have determined that a defendant’s probationary period begins from the date of his sentencing and a violation of the terms of his probation may occur even though he has not yet begun serving his sentence, let alone his probation. Baker v. State, 894 N.E.2d 594, 598 (Ind. Ct. App. 2008). Because a defendant’s probation can be revoked at any point after sentencing, the fact that Baldi’s probation on the FD-25 charge has been revoked, without more, does not establish that he ever started serving his sentence in that cause. In short, Baldi has failed to present any evidence in support of his contention that the Parole Board “turned over” the sentence on the CF-390 charge. And even though Baldi may have violated the terms of his probation on the FD-25 charge, that fact is not sufficient to support his contention. As a result, we conclude that the trial court properly denied Baldi’s request for relief.
Appellant-petitioner Ruben Maldonado appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erroneously concluded that he did not receive the ineffective assistance of trial counsel. Maldonado argues that his attorney should have attempted to introduce evidence of the victim’s alleged statements about a sexual encounter with an imaginary brother. We find that even if these statements had fallen under the purview of the Rape Shield Rule,1 they would have been admissible via the common law exception for demonstrably false accusations of sexual misconduct. That said, we find that trial counsel could have made a reasonable strategic decision to keep this evidence out of the record for fear of evidence of Maldonado coaching his six-year-old son prior to his deposition coming into evidence as well. Therefore, we find that trial counsel was not ineffective and affirm.NFP civil opinions today (0):
NFP criminal opinions today (6):
J.S. v. State of Indiana (NFP)
Curtis Lee Weida v. State of Indiana (NFP)
Antonio Phillips v. State of Indiana (NFP)
Darius T. Bloch v. State of Indiana (NFP)
Nathaniel Selby Bradley v. State of Indiana (NFP)
James W. Oswalt, Jr. v. State of Indiana (NFP)
Posted by Marcia Oddi on June 29, 2009 12:09 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Court of Appeals caseload down considerably in calendar 2009
The ILB has learned that the Court of Appeals case inventory is down 17% for the first five months of the year, so the overall caseload--and, correspondingly, oral arguments--has been lessened significantly. And on top of that, of course, the fact that summertime is always slow anyway.
Posted by Marcia Oddi on June 29, 2009 11:08 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Transfer list for week ending June 26, 2009
Here is the Clerk's transfer list for the week ending June 26, 2009. It is three pages long.
No cases were granted transfer last week.
________
Transfer lists have new feature. The "Denied/Granted" column, beginning in March 2009, includes the votes of the justices.
Search all the Transfer Lists: A new 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 May 22nd list.
Over five 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 June 29, 2009 11:04 AM
Posted to Indiana Transfer Lists
Ind. Decisions - 7th Circuit decides one Indiana case today
In David Farr v. St. Francis Hospital (SD Ind., Judge Barker), an 11-page opinion, Judge Evans' opinion affirms the district court dismissal of Farr's claims. Some quotes:
David Farr contends that he was fired from his employment at St. Francis Hospital and Health Centers in Indianapolis because he is a man. He filed this action alleging sex discrimination in employment, 42 U.S.C. § 2000e-2(a)(1), and, as relevant to this appeal, he tacked on pendent state law claims for defamation and breach of the covenant of fair dealing. The state law claims were dismissed and, later, summary judgment was granted on the discrimination claim. Both decisions are subject to our de novo review on Farr’s appeal. Village of DePue, Ill. v. Exxon Mobil Corp. 537 F.3d 775 (7th Cir. 2008); Jackson v. County of Racine, 474 F.3d 493 (7th Cir. 2007). * * *Farr then filed the present lawsuit, claiming that he was the victim of gender discrimination. In his charge before the Equal Employment Opportunities Commission he made the following claim: “My attorney and our computer expert immediately recognized the list as having been secretly put on my computer by a virus and not by any human. It seems to me that any fair-minded person should instantly realize I didn’t create the list.” During his deposition he was asked how he could reconcile that statement with his admission that he visited 17 of the sites. He again acknowledged that he visited the sites. Nevertheless, his sex discrimination claim rests on his view that the Hospital assumed he was guilty of looking at the pornography sites because he was the only man working in the department. * * *
The bottom line is that Farr admits that he visited some of the inappropriate Web sites. The Hospital says that is why he was fired, and he has done nothing to show otherwise.
In addition, Farr’s state law claims were properly dismissed. He claims the employee handbook gave him the right to be treated fairly, but that he wasn’t—in breach of the covenant of fair dealing. Indiana, however, adheres to the employment-at-will doctrine, and Farr was an at-will employee. Evaluated under Indiana law, the Hospital’s employee handbook does not change the nature of Farr’s employment. As we recognized in Peters v. Gilead Sciences, Inc., 533 F.3d 594 (7th Cir. 2008), the Indiana Supreme Court has entertained a challenge to the at-will doctrine based on an employee handbook, but rejected the challenge and concluded:
We re-affirm the vitality of the employment-at-will doctrine in Indiana and the general rule that adequate independent consideration is necessary to convert an at-will relationship into an employment relationship requiring an employer to discharge an employee for good cause. We decline plaintiffs’ invitation to construe employee handbooks as unilateral contracts and to adopt a broad new exception to the at-will doctrine for such handbooks.Orr v. Westminster Vill. North, Inc., 689 N.E.2d 712, 722 (Ind. 1997). As we noted in Workman v. United Parcel Serv., Inc., 234 F.3d 998, 1001 (7th Cir. 2000), “Employment at will is the norm in the United States.” * * *Lastly, Farr claims that the Alverno report is defamatory. The problem is, however, that the report was used during the grievance proceedings that Farr initiated and in response to a report Farr submitted. In such a situation, statements made by the company to explain its actions are privileged. In fact, the employer has a duty to explain its actions. See Ernst v. Indiana Bell Tel. Co., 475 N.E.2d 351 (Ind. Ct. App. 1985).
Posted by Marcia Oddi on June 29, 2009 10:39 AM
Posted to Ind. (7th Cir.) Decisions
Courts - SCOTUS final three decisions today
The SCOTUS has reversed the 2nd Circuit's ruling in Ricci, 5-4. Here is the opinion (may be slow). Thanks once more to SCOTUSLaw blog. From SCOTUSblog:
Kennedy delivered the 5-4 majority opinion of the Court in Ricci. Justice Scalia filed a concurring opinion. Justice Alito filed a concurring opinion, in which Justice Scalia and Justice Thomas joined. Justice Ginsburg filed a dissenting opinion, in which Justices Stevens, Souter, and Breyer joined.Goldstein remarks:
Various comments ask about the effect of Ricci on the Sotomayor hearings. The decision will certainly be front and center. Her position is the same as Justice Souter's, so I think it it comes across mostly as an ideological disagreement.More:
Cuomo is decided. Justice Scalia writes for the Court. The regulation is invalid. States have the power to police discrimination in mortgage lending.Background here. Opinion here.
Goldstein report: "Citizens United, the Hillary movie campaign finance case"